People v. Blakes

2021 IL App (3d) 190063-U

• Court: Appellate Court of Illinois
• Decided: December 7, 2021
• Docket: 3-19-0063
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 190063

Order filed December 7, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-19-0063 v. ) Circuit No. 17-CF-493 ) NISSAN S. BLAKES, ) Honorable ) Paul P. Gilfillan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court. Presiding Justice McDade and Justice Schmidt concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) Trial court properly considered the mitigating factors attendant to juvenile defendant’s youth in imposing a 25-year sentence. (2) Defendant’s postplea proceeding met the requirements of Supreme Court Rule 604(d) notwithstanding counsel’s failure to include arguments in the written postplea motion that she eventually made at the hearing.

¶2 Defendant, Nissan S. Blakes, pled guilty to aggravated battery and was sentenced to 25

years in prison for an offense he committed when he was 16 years old. On direct appeal, he argues

that the trial court abused its discretion in imposing his sentence by failing to consider the mitigating factors attendant to his youth, as required by statute, and that his post-plea proceeding

failed to comply with Supreme Court Rule 604(d) (eff. July 1, 2017). We affirm.

¶3 I. BACKGROUND

¶4 Defendant was charged with aggravated battery (720 ILCS 5/12-3.05(e)(1) (West 2016)),

attempted first degree murder (id. § 8-4(a); § 9-1(A)(1)), and unlawful possession of a firearm (id.

§ 24-3.1(a)(2)). The indictment alleged that on June 1, 2017, defendant personally discharged a

firearm at LaShawn Jones, causing great bodily harm to Jones, with the intent to kill him.

Defendant was 16 years old at the time. Defendant pled guilty to aggravated battery, a Class X

felony with a sentencing range of 6-30 years (720 ILCS 5/12-3.05(h) (West 2016); 730 ILCS 5/5-

4.5-25(a) (West 2016)), and the State agreed to dismiss all other charges.

¶5 At the plea hearing, the factual basis presented by the State established that on June 1,

2017, Detective Dave Smith responded to 1106 McClure on a call of a male shot in the chest. In

front of the house near the sidewalk, officers were treating Jones for a gunshot wound to the base

of his neck. Jones stated that defendant shot him. He was transported to the hospital where he again

identified defendant as the shooter. While investigating the scene, Smith noticed bullet holes in a

storm door on the front of the house, as well as holes through the main door. Smith recovered a

fingerprint from the handle of the storm door, which was later identified as belonging to defendant.

¶6 The factual basis also provided that, if called, Smith would testify that during his interview,

defendant initially said he had nothing to do with the shooting but then stated that other individuals

made him go to Jones’s house with them. Defendant told Smith that when he opened the door,

someone fired shots over his shoulder, one of which hit Jones. Smith asked defendant what the

motive was for shooting Jones, and defendant indicated that there was a $6,000 bounty on Jones’s

2 head that was “put out by some south end gang members.” The defense agreed to the factual basis,

and the trial court accepted the plea.

¶7 The presentence investigation report (PSI) indicated that defendant had a history of

juvenile misconduct. In December 2012, he was adjudicated delinquent on two counts of felony

residential burglary and received two years’ probation. In 2013, he was adjudicated delinquent for

committing residential burglary and aggravated robbery and was placed in a residential home for

juveniles with 30 months’ probation. He violated probation by running away from the home. In

December 2016, he committed a Class A misdemeanor offense of unlawful possession of firearm

ammunition and was adjudicated delinquent and placed on probation for one year, ending on

February 23, 2018.

¶8 The PSI included a report from Peoria Public Schools District No. 150. It demonstrated

that defendant had numerous conduct violations while attending high school. The report indicated

that defendant had last attended 10th grade during the 2017 school year but dropped out before the

end of the year. Defendant had behavioral issues in grade school as well. Beginning in 2010,

defendant was disciplined, expelled, or suspended for various reasons, including acts of

aggression, threats, bullying, trespassing, bringing a weapon to school (a BB gun), reckless

conduct, insubordination, using inappropriate language, class disruption, disrespect, gang activity,

cutting class, lying, dress code violations, and tardiness. In addition, both defendant’s mother and

his father had criminal records. Defendant was a victim of physical abuse by his mother when he

was a baby. He was raised by his father and his grandmother because his natural mother was “in

and out of jail.” Defendant’s mother was not involved in his life until he was seven years old. He

said his mother was his “best friend” and his father was “like a brother.” He stated that his father

was his role model.

3 ¶9 The PSI noted that following defendant’s juvenile adjudications, he was placed in

Kemmerer Village, a juvenile home for teenagers. While in custody, defendant was diagnosed with

oppositional defiant disorder and moderate attention deficit hyperactivity disorder. He was

prescribed medication and participated in individual and psychotherapeutic counseling weekly

until he was discharged. He was referred to the Children’s Home for services but did not participate

in any further counseling.

¶ 10 According to the PSI intake officer, defendant only took “partial blame for the offense.”

During his interview, defendant stated that it should not have happened because guns were not

supposed to be involved. He claimed he was “just selling weed to a person” and that he was not

there when it happened. He said he wanted to see his daughter again, and he hoped to be sentenced

to 13 years or less.

¶ 11 At sentencing, the court stated that the sentencing range for a Class X felony was 6 to 30

years, with 85% of the sentence to be served. The State argued that, even in light of new sentencing

legislation for juvenile offenders, defendant deserved a severe sentence. It emphasized the

aggravating factors, including that defendant initially denied involvement and that he was

motivated by money and requested a sentence at or near the maximum.

¶ 12 In mitigation, defense counsel urged the court to consider defendant’s unstable upbringing,

his lack of a positive role models, and the need for emotional support. She reminded the court that

the victim in this case survived the incident and that defendant was already punished for this

offense by being charged as an adult. She requested a sentence of eight to ten years.

¶ 13 Neither the State nor the defense presented evidence in aggravation or mitigation. In

allocution, defendant stated that he took “full responsibility for what [he] did.”

4 Initially, the trial court stated that it had considered the PSI, counsels’ arguments, and the

defendant’s statement in allocution, as well as the statutory factors in aggravation and mitigation,

the history and character of the defendant, and the circumstances and nature of the offense. It then

noted that several factors in aggravation weighed heavily against the defendant, including the

threat of serious physical harm despite the victim’s recovery, defendant’s history of prior

delinquency and criminal activity, and his failure to complete counseling and services that

provided tools for rehabilitation.

¶ 14 In mitigation, the court made the following statement:

“In terms of factors in mitigation. I don’t find many, if any, that apply. I will count on

one that doesn’t apply. As a trial court, I’ll comment on the factor in mitigation that doesn’t

apply at my discretion. And the factor of the defendant’s criminal conduct was a result of

circumstances unlikely to occur and needs to be underscored. That does not apply in this

case. You are headed down a torturous path of unlawful activity. This was the highlight.

***

Maybe it’s because you’re a juvenile. Maybe it’s because the Supreme Court of the

country, let alone the state, requires us to consider as additional factors in mitigation in

determining an appropriate sentence your youthful age. Everyone recognizes, as does this

Court, a 16-year-old’s impetuosity, lack of complete maturity, and full brain development,

peer pressure in doing things with others that you’d never do on your own, arguably not to

this extent. Your family background. You lived it. I [sic] doesn’t look good on paper. That

could have some impact on why you chose to do what you did. Your potential for

rehabilitation is arguably better than a hardened 35-year-old criminal.

5 So, I want it known that I’ve specifically taken into account those juvenile factors that

now must be in sentencing of this type.”

The trial court then sentenced defendant to 25 years in the Department of Corrections, finding that

such a term was appropriate and consistent with the ends of justice and necessary to deter others

from similar acts.

¶ 15 Defendant moved to reconsider his sentence and withdraw his guilty plea, arguing that his

sentence was excessive and the court failed to properly weigh the factors in mitigation and

aggravation. Defendant also claimed that the court failed to properly consider the factors relative

to sentencing a juvenile. In defendant’s written motion, counsel stated that she had requested the

transcripts and would review them and consult with defendant in compliance with Supreme Court

Rule 604(d) (eff. July 1, 2017).

¶ 16 Five months later, counsel filed a Rule 604(d) certificate. It confirmed that she had met

with defendant, that she had examined the trial court file and report of proceedings in the plea

hearing and in the sentencing hearing, and that she had made “any amendments to the motion

necessary for the adequate presentation of any defects in the proceedings.” Counsel did not file an

amended motion. At the hearing, counsel argued that defendant’s plea should be withdrawn

because he was pressured into taking it based on his fear that prosecutors might offer Jones a deal

to testify against him. She also argued that defendant’s sentence was excessive and that the trial

court inappropriately emphasized defendant’s school disciplinary records.

¶ 17 In denying the motion, the court stated that the additional statutory factors for sentencing

a juvenile had been considered. The court noted that it evaluated defendant’s school records and

the PSI specifically in consideration of those factors. It also emphasized that defendant’s crime

was “horrendous” and “but for an inch here or there, the victim could have died and [defendant]

6 would be facing murder charges.” The court concluded that it decided not to impose the maximum

sentence of 30 years in consideration of defendant’s youth.

¶ 18 II. ANALYSIS

¶ 19 A. Mitigating Sentencing Factors

¶ 20 Defendant argues that his sentence is excessive because the trial court failed to consider

the mitigating factors attendant to his youth as required by section 5-4.5-105(a) of the Unified

Code of Corrections (Code) (730 ILCS 5/5-4.5-105(a) (West 2016)).

¶ 21 A reviewing court will not disturb the trial court's sentencing decision absent an abuse of

discretion. People v. Sharp, 2015 IL App (1st) 130438, ¶ 134. The trial court abuses its discretion

when its decision is “fanciful, arbitrary, or unreasonable to the degree that no reasonable person

would agree with it.” People v. Ramos, 353 Ill. App. 3d 133, 137 (2004). A sentence within the

appropriate sentencing range is generally accorded great deference. People v. Colon, 2018 IL App

(1st) 160120, ¶ 65. Where, as here, the defendant's sentence falls within the prescribed statutory

limits, the reviewing court will not find an abuse of discretion unless the sentence is greatly at

variance with the purpose and spirit of the law or is manifestly disproportionate to the offense.

People v. Means, 2017 IL App (1st) 142613, ¶ 14.

¶ 22 Here, the sentencing range for the offense of aggravated battery was 6 to 30 years.

Defendant’s 25-year sentence falls within that range and was not a de facto life sentence. See

People v. Buffer, 2019 IL 122327, ¶ 36. The trial court considered the factors in aggravation and

mitigation, and defendant’s sentence is presumed to be proper. We will not reweigh the factors or

substitute our judgment for the trial court’s because we would have weighed them differently. See

People v. Dickey, 2011 IL App (3d) 100397, ¶ 20.

7 ¶ 23 Alternatively, defendant maintains that the trial court abused its discretion in sentencing

him because it failed to “meaningfully consider” the additional mitigating factors for juvenile

defendants announced in People v. Holman, 2017 IL 120655, and codified in section 5-4.5-105(a)

of the Code.

¶ 24 The United States Constitution prohibits “cruel and unusual punishments.” U.S. Const.,

amend. VIII. Inherent to the eighth amendment’s prohibition on cruel and unusual punishment is

the concept of proportionality. Holman, 2017 IL 120655, ¶ 33. Proportionality concerns are

heightened when it comes to children. In the case of a juvenile offender accused of a serious

offense, “there is a genuine risk of disproportionate punishment.” Id. Thus, the United States

Supreme Court has advised that, for purposes of sentencing, juveniles are constitutionally different

from adults. See Miller v. Alabama, 567 U.S. 460, 471 (2012). Compared to adult offenders,

juvenile offenders have less moral culpability and greater rehabilitative potential. Id.; see also

People v. Luna, 2020 IL App (2d) 121216-B, ¶ 21. They lack maturity, have a higher vulnerability

to negative influences and outside pressures, and exhibit impulsive and impetuous characteristics.

Buffer, 2019 IL 122327, ¶ 16

¶ 25 The Illinois Supreme Court has considered the effects of Miller v. Alabama and has held

that both mandatory and discretionary juvenile sentences violate constitutional rights unless the

sentencing court considers, as mitigation, “a juvenile defendant’s youth and its attendant

characteristics.” Id. ¶ 36 (citing Holman, 2017 IL 120655, ¶¶ 45-46). In Holman, the court listed

several mitigation factors that should be considered in addressing the characteristics of youth.

Holman, 2017 IL 120655, ¶¶ 45-46. Our legislature has since codified those factors in the

sentencing statute. Section 5-4.5-105(a) of the Code now provides that when a person commits an

8 offense and is under the age of 18, the trial court must consider the following additional factors in

mitigation in determining an appropriate sentence:

“(1) the person’s age, impetuosity, and level of maturity at the time of the offense, including

the ability to consider risks and consequences of behavior, and the presence of cognitive

or developmental disability, or both, if any;

(2) whether the person was subjected to outside pressure, including peer pressure, familial

pressure, or negative influences;

(3) the person's family, home environment, educational and social background, including

any history of parental neglect, physical abuse, or other childhood trauma;

(4) the person's potential for rehabilitation or evidence of rehabilitation, or both;

(5) the circumstances of the offense;

(6) the person's degree of participation and specific role in the offense, including the level

of planning by the defendant before the offense;

(7) whether the person was able to meaningfully participate in his or her defense;

(8) the person's prior juvenile or criminal history; and

(9) any other information the court finds relevant and reliable, including an expression of

remorse, if appropriate. However, if the person, on advice of counsel chooses not to make

a statement, the court shall not consider a lack of an expression of remorse as an

aggravating factor.” 730 ILCS 5/5-4.5-105(a) (West 2016).

¶ 26 As the statute requires, trial courts must consider additional factors in mitigation in

sentencing juvenile defendants. The trial court did so in this case. We agree with defendant’s

underlying premise: simply stating that defendant’s youth and its attendant circumstances have

been considered does not fulfill the spirit of the statute. Here, however, the record shows that the

9 trial court carefully and explicitly considered the mitigating factors listed in section 5-4.5-105(a).

In imposing the defendant’s sentence, the trial court spoke at length and noted repeatedly the

defendant’s youth, family background, prior juvenile history, and educational background. The

court also evaluated defendant’s rehabilitative potential and determined that defendant failed to

take advantage of probation sentences and social services.

¶ 27 In addition, the court evaluated the factors in aggravation, noting the brutal nature of the

crime and the disturbing motive behind the shooting. The trial court is not required to articulate

every factor it considers in rendering a sentence. And its failure to do so does not mean that it did

not take all the relevant factors into account. See People v. Jones, 2019 IL App (1st) 170478, ¶ 54

(when mitigating factors have been presented to the trial court, it is presumed the court considered

those factors, absent a contrary indication). Further, the trial court’s contemplation of defendant’s

sentence as a juvenile is highlighted by the fact that the court did not impose the maximum

sentence for aggravated battery, explicitly stating that it chose a lesser sentence based on

defendant’s youth. The record before us negates defendant’s argument that the trial court failed to

consider the relevant mitigating factors in section 5-4.5-105(a) in determining the appropriate

penalty. We find no abuse of discretion in the sentence imposed by the trial court.

¶ 28 B. Postplea Proceedings

¶ 29 Defendant argues that his postplea proceedings failed to comply with Supreme Court Rule

604(d) because the written postplea motion filed by counsel did not include several issues she

raised at the postplea hearing.

¶ 30 Supreme Court Rule 604(d) requires that no appeal from a judgment entered upon a plea

of guilty shall be taken unless the defendant files a motion to withdraw the plea and vacate the

judgment within 30 days of the sentencing order. Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

10 Additionally, Rule 604(d) requires defense counsel to file a certificate with the trial court verifying

that counsel has consulted with the defendant to ascertain contentions of error, has examined the

trial court file and both the report of proceedings of the plea and the sentencing hearing, and has

made “any amendments to the motion necessary for adequate presentation of any defects in those

proceedings.” Id.

¶ 31 Rule 604(d) is designed to ensure defendants are provided their due process rights and to

eliminate unnecessary appeals. People v. Shirley, 181 Ill. 2d 359, 362 (1998). Thus, “strict

compliance with Rule 604(d) is required.” People v. Prather, 379 Ill. App. 3d 763, 768 (2008).

Generally, we consider the certificate itself to evaluate compliance with Rule 604(d). People v.

Neal, 403 Ill. App. 3d 757, 760 (2010). Courts may consider the record where it undermines the

certificate filed by counsel. Id. Whether defense counsel complied with Rule 604(d) is reviewed

de novo. People v. Grice, 371 Ill. App. 3d 813, 815 (2007).

¶ 32 The proper remedy for counsel’s failure to strictly comply with Rule 604(d) is to remand

the cause to the trial court to file a new motion to withdraw the guilty plea and for a new hearing

on the motion. See People v. Bridges, 2017 IL App (2d) 150718, ¶¶ 6, 12. However, where the

defendant is afforded a full and fair postplea hearing, there is “limited value in requiring a repeat

of the exercise, absent a good reason to do so.” Shirley, 181 Ill. 2d at 369.

¶ 33 Here, defense counsel’s certificate stated that: (1) she “consulted with defendant in person,

by mail, by phone or by electronic means to ascertain the defendant’s contentions of error in the

entry of the plea of guilty and in the sentence,” (2) she “examined the trial court file and report of

proceedings of the plea of guilty and the report of proceedings in the sentencing hearing,” and (3)

she “made any necessary amendments to the motion necessary for the adequate presentation of

any defects in those proceedings.” The language in her certificate comports with the language of

11 the statute and is nearly identical to the terms and conditions imposed by the legislature. It strictly

complies with Rule 604(d).

¶ 34 Moreover, defense counsel’s arguments at the postplea hearing substantiated the claims

she made in her Rule 604(d) certificate and no amendments were necessary. The issues she argued

at the hearing related to the viability of the guilty plea and the court’s failure to consider mitigating

factors in imposing defendant’s sentence. Those issues were properly preserved by the original

written motion to reconsider the sentence and withdraw the guilty plea that counsel filed.

¶ 35 In this case, defendant was afforded the due process Rule 604(d) seeks to provide, and

counsel’s certificate strictly complied with the statutory requirements. Following her compliance,

a hearing was held and arguments were heard. All of the issues raised by counsel were considered

by the trial court, and defendant’s contentions of error were preserved for our review. Defendant

was afforded a full and fair opportunity to challenge his guilty plea and his sentence. Under these

circumstances, we find that counsel complied with Rule 604(d) despite her decision not to amend

the postplea motion. There is no reason to remand this matter for a new hearing. See Shirley, 181

Ill. 2d at 369 (court declined to remand for a new hearing where certificate filed on remand

complied with Supreme Court Rule 604(d) and defendant received a full and fair hearing on his

postplea motion).

¶ 36 III. CONCLUSION

¶ 37 The judgment of the circuit court of Peoria County is affirmed.

¶ 38 Affirmed.