People v. Boger

2023 IL App (5th) 220241-U

• Court: Appellate Court of Illinois
• Decided: March 29, 2023
• Docket: 5-22-0241
• Status: Unpublished

Opinion

2023 IL App (5th) 220241-U NOTICE NOTICE Decision filed 03/29/23. The This order was filed under text of this decision may be NO. 5-22-0241 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Lawrence County. ) v. ) No. 19-CF-141 ) BRANDY BOGER, ) Honorable ) Robert M. Hopkins, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in sentencing the defendant to four years’ imprisonment.

¶2 The State charged the defendant, Brandy Boger, with one count of methamphetamine

delivery of more than 5 grams but less than 15 grams (720 ILCS 646/55(a)(1), (a)(2)(B) (West

2018)), a Class 1 felony, and one count of methamphetamine delivery of less than 5 grams (id.

§ 55(a)(1), (a)(2)(A)), a Class 2 felony. Thereafter, the defendant entered an open plea of guilty

to one count of delivery of less than five grams of methamphetamine, and the trial court sentenced

her to four years’ imprisonment. On appeal, the defendant challenges her sentence as excessive.

For the reasons that follow, we affirm the order of the circuit court of Lawrence County.

1 ¶3 I. BACKGROUND

¶4 On December 19, 2019, the State charged the defendant with two counts of

methamphetamine delivery: one count of delivery of more than 5 but less than 15 grams of

methamphetamine and one count of delivery of less than 5 grams of methamphetamine.

¶5 On July 7, 2021, the defendant entered an open plea of guilty to one count of delivery of

less than five grams of methamphetamine, a Class 2 felony. In exchange for the plea, the State

agreed to dismiss the other methamphetamine delivery charge. Before accepting the plea, the trial

court made sure that the defendant understood the nature of the plea and had an opportunity to

discuss it with counsel, admonished her about the minimum and maximum sentences prescribed

by law, and admonished her about the rights she was giving up by pleading guilty. Thereafter, the

court accepted the defendant’s guilty plea and found that it was knowingly and voluntarily made.

¶6 In October 2021, the defendant tested positive for amphetamine. Subsequently, in

November 2021, the defendant entered inpatient substance abuse treatment and completed the

program on December 9, 2021.

¶7 The trial court held the sentencing hearing on January 19, 2022. At the hearing, the

defendant testified that she had been employed at Addus HomeCare providing home healthcare to

her father, who was dying of double lung failure. However, because she was charged with the two

felonies, she could no longer work for Addus unless she obtained a waiver from the State. She

had two children, ages 23 and 15, and they resided with her. She recently completed inpatient

drug treatment and was given a treatment plan upon discharge, which included ongoing

counseling. She was currently participating in weekly, individual counseling, and her most recent

session was January 13. She was told that she would have employment at the TBIN factory in

Princeton, Indiana, if she was sentenced to probation. She had a 2016 felony conviction for the

2 unlawful purchase of methamphetamine precursor for which she received probation. She then

violated probation in 2017 and was resentenced to a term of imprisonment. She also had two

charges that occurred in 2020 (after the present case) in Vanderburgh County, Indiana, for forgery

and possession of a controlled substance. She pled guilty and was sentenced to 18 months’

probation, which she successfully completed.

¶8 After the defendant’s testimony, the State offered no testimony in rebuttal but

recommended the defendant be sentenced to six years’ imprisonment. The State argued that the

trial court should consider the following aggravating factors when imposing the sentence. The

first aggravating factor was the defendant’s prior history of criminal activity. The State noted that

the defendant failed to successfully complete probation with regard to the unlawful purchase of

methamphetamine precursor conviction and was resentenced to 18 months’ imprisonment. The

State also noted that she committed the offenses in Vanderburgh County after the charges here

were filed. The second aggravating factor was that the sentence would be necessary to deter others

from committing the same offense. The State argued that methamphetamine was a big problem in

the county, and a substantial amount of the felony cases filed involved the use of

methamphetamine, which was made possible by the individuals who were willing to distribute it.

The State then acknowledged and commended the defendant’s progress in addressing her

substance abuse issues. However, the State argued that, based on the seriousness of the charge

and the issue with methamphetamine in the county, the court should impose a sentence of six

years’ imprisonment.

¶9 In response, defense counsel argued that the defendant should receive a sentence of

probation. In making this argument, counsel acknowledged that there was a methamphetamine

problem in Lawrence County but argued that many users often became involved in the delivery of

3 methamphetamine to other users. Counsel noted that the defendant had taken significant steps to

address her substance abuse issues; she completed residential treatment and, after discharge, began

participating in individual counseling. Counsel argued that this was a good indication of what her

efforts would be moving forward. Counsel also argued that the trial court should consider that the

defendant was responsible for caring for her children as well as her father; her previous

employment; and the fact that, if sentenced to probation, she would have gainful employment.

Thus, counsel argued that the defendant demonstrated that probation was best for herself as well

as for the community.

¶ 10 After hearing the testimony and counsels’ arguments, the trial court sentenced the

defendant to four years’ imprisonment to be followed by one year of mandatory supervised release.

In imposing this sentence, the court noted that it considered the defendant’s testimony, the

presentence investigation report, and counsels’ arguments. The court noted that it considered that

the defendant’s criminal conduct neither caused or threatened serious physical harm to another as

a mitigating factor.

¶ 11 In aggravation, the trial court considered that the defendant had a fairly substantial history

of prior criminal activity, which included the 2016 methamphetamine precursor conviction; a prior

conviction for driving under the influence of alcohol in 2014; a 2013 theft conviction in Knox

County, Indiana; and a Class A misdemeanor theft conviction in 2012. The court also considered

the Vanderburgh County offenses, which occurred in January 2020, after this case was filed.

¶ 12 The trial court further considered that the sentence may be necessary to deter others from

committing the same crime. The court noted that methamphetamine delivery cases in Lawrence

County were “very few” while there were many charges filed relating to possession. The court

stated that it treated delivery cases in a different class than possession cases. The court then stated

4 that “doesn’t mean that [rehabilitation] *** as far as addiction to methamphetamine is not a very

good thing for people who are charged with delivery, but it isn’t the whole story because obviously

when you deliver [methamphetamine] to other people, other people are having their addictions

fed.” The court noted that a lot of the crimes committed in the county resulted from the use of

methamphetamine as well as from the fact that the users must find money to pay for it. The court

also noted that methamphetamine was a very serious issue that must be dealt with and had been

the “scourge” of Lawrence County for close to 20 years.

¶ 13 The trial court then noted that the defendant had been previously placed on probation, but

she failed to successfully complete that probation and was subsequently sentenced to

imprisonment. Although the court noted that she had been much more compliant in this case, the

court stated that she was faced with a much more substantial sentence here than in the other case.

¶ 14 On February 18, 2022, the defendant filed a pro se motion to withdraw her guilty plea. On

April 20, 2022, the defendant’s counsel filed an amended motion to withdraw the guilty plea,

arguing that, when entering her guilty plea, the defendant expected to be sentenced to probation

and that her sentence was excessive. Counsel also filed a certificate of compliance with Illinois

Supreme Court Rule 604(d) (eff. Feb. 6, 2013).

¶ 15 Also, on April 20, the trial court held a hearing on the amended motion to withdraw guilty

plea. At the hearing, the defendant testified that, at the time that she entered into the guilty plea,

her understanding was that she would be sentenced to probation if she went to substance abuse

treatment. Following her testimony, the defendant’s counsel argued that, at the time that the

defendant entered her guilty plea, she did not realize what the ultimate outcome would be and that,

in light of her history, the sentence was excessive. Counsel requested that the defendant’s sentence

be reduced to probation, or she be granted leave to withdraw the plea. In response, the State

5 contended that there was no agreement for probation made to the defendant, although she might

have hoped for that outcome. After hearing the arguments, the trial court denied the amended

motion to withdraw the plea. The defendant appeals her sentence as excessive.

¶ 16 II. ANALYSIS

¶ 17 On appeal, the defendant argues that the trial court abused its discretion by sentencing her

to 4 years’ imprisonment where she had a substantial history of employment as a certified nursing

assistant for 17 years, was employed at the time of the offense, and had employment available if

she was sentenced to probation; where she had two children living with her, and she cared for her

dying father; and where she had undergone substance abuse treatment for the methamphetamine

addiction that was the root of her criminal activity. Also, the defendant contends that her conduct

did not cause or threaten serious harm; she had no criminal record until her problems with

substance abuse began in 2012; before this conviction, she was convicted of less serious,

nonviolent offenses; and her performance during her more recent probation showed her

rehabilitative potential. Although the defendant’s counsel requested probation at sentencing, in

her appellate brief, the defendant requests that we reduce her sentence to the three-year minimum

sentence of imprisonment.

¶ 18 When a defendant challenges a sentence, the standard of review is whether the trial court

has abused its discretion in imposing the sentence. People v. Davis, 368 Ill. App. 3d 17, 23 (2006).

A trial court has broad discretionary powers in determining a sentence, and its decisions are

afforded great deference. People v. Stacey, 193 Ill. 2d 203, 209 (2000). This level of deference is

given because a trial court has superior opportunity to weigh such factors as defendant’s

credibility, demeanor, general moral character, mentality, social environment, habits, and age. Id.

Although a reviewing court has the power to reduce or alter a sentence, this power should be

6 exercised cautiously and sparingly. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Absent an

abuse of discretion, a reviewing court will not disturb a sentence that falls within the prescribed

statutory limits. People v. Maldonado, 240 Ill. App. 3d 470, 484 (1992). A sentence will be

deemed excessive and the result of an abuse of discretion where it is greatly at variance with the

spirit and purpose of the law, or manifestly disproportionate to the nature of the offense. Stacey,

193 Ill. 2d at 210.

¶ 19 A proper sentence balances the seriousness of the offense with the objective of restoring a

defendant’s rehabilitative potential. Ill. Const. 1970, art. I, § 11. The Unified Code of Corrections

sets out certain statutory factors in aggravation and mitigation that a trial court must consider when

imposing a sentence of imprisonment. 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2020). In fashioning

the appropriate sentence, the court must carefully consider all of the factors in aggravation and

mitigation, and other factors, such as defendant’s age, demeanor, habits, credibility, criminal

history, social environment, and education as well as the nature and circumstances of the crime

and of defendant’s conduct in the commission of the crime. People v. Quintana, 332 Ill. App. 3d

96, 109 (2002). When such factors have been presented for the trial court’s consideration, it is

presumed, absent some contrary indication, that the factors have been considered. People v.

Flores, 404 Ill. App. 3d 155, 158 (2010). A trial court has wide latitude in sentencing a defendant,

as long as it neither ignores relevant mitigating factors nor considers improper factors in

aggravation. Id. at 157.

¶ 20 Here, the defendant pled guilty to delivery of less than five grams of methamphetamine,

which was a Class 2 felony with a sentencing range of three to seven years’ imprisonment. 720

ILCS 646/55(a)(1), (a)(2)(A) (West 2020); 730 ILCS 5/5-4.5-35(a) (West 2020). In sentencing

her to four years’ imprisonment, the sentence was within the prescribed sentencing range and

7 below the State’s recommendation (the State recommended a sentence of six years). Before

announcing the sentence, the trial court was presented with the defendant’s testimony about her

employment history, being the caretaker for her dying father and having her two children living

with her, and her completion of inpatient substance abuse treatment and having a treatment plan

for her ongoing outpatient treatment. The court was also presented with evidence of her criminal

history and argument concerning the fact that her conduct neither caused nor threatened serious

physical harm to another. However, the presence of mitigating factors does not mandate the

imposition of the minimum sentence. Flores, 404 Ill. App. 3d at 158. After considering this

evidence in mitigation, the court imposed a sentence that was one year more than the minimum

sentence.

¶ 21 In making this decision, the trial court noted that the most important convictions in the

defendant’s criminal history were the 2016 conviction for unlawful purchase of a

methamphetamine precursor and the 2013 felony theft conviction. The court noted that the

defendant also pled guilty to forgery and possession of a controlled substance, offenses that were

committed close in time to the offense at issue here. Although the defendant had successfully

completed probation in that case, she had previously violated probation with regard to the

methamphetamine precursor conviction and was resentenced to 18 months’ imprisonment. The

court acknowledged that she had been more compliant in this case but noted that she faced a much

more substantial sentence for this Class 2 felony.

¶ 22 The trial court also found significant the need for deterrence, noting that methamphetamine

was a serious societal issue. The court acknowledged the defendant’s substance abuse issues and

her efforts at rehabilitation but noted that this was not the whole story because the defendant’s

criminal conduct was feeding others’ addictions rather than just being a by-product of a substance

8 abuse issue that she suffered. Although the defendant’s substance abuse issues can be considered

as evidence in mitigation at sentencing, drug addiction is not a statutorily-mandated mitigating

factor that must be considered. See People v. Whealon, 185 Ill. App. 3d 570, 573 (1989).

¶ 23 After carefully evaluating the mitigating factors, which included the defendant’s

rehabilitative potential, and the aggravating factors, which included the need for deterrence and

the seriousness of the offense, the trial court imposed a sentence that was one year above the

minimum. The court was not required to afford greater weight to the defendant’s rehabilitative

potential or other mitigating factors than the seriousness of the offense. See People v. Pippen, 324

Ill. App. 3d 649, 652 (2001). Also, when reviewing a sentence imposed by the trial court, this

court is not to reweigh the factors considered by the trial court. See Flores, 404 Ill. App. 3d at

158. Thus, the defendant’s contention that the trial court failed to give proper weight to the

mitigating factors is without merit, and we do not find that the court abused its discretion in this

regard.

¶ 24 III. CONCLUSION

¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Lawrence County.

¶ 26 Affirmed.