People v. Clair

2021 IL App (1st) 181667-U

• Court: Appellate Court of Illinois
• Decided: February 5, 2021
• Docket: 1-18-1667
• Status: Unpublished

Opinion

2021 IL App (1st) 181667-U No. 1-18-1667 Order filed February 5, 2021 Sixth Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 9018 ) WESTRY CLAIR, ) Honorable ) James M. Obbish, Defendant-Appellant. ) Judge, presiding.

JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Mikva and Justice Harris concurred in the judgment.

ORDER

¶1 Held: Defendant’s 15-year sentence for one count of predatory criminal sexual assault of a child is affirmed over his contentions the trial court improperly considered an aggravating factor that was unsupported by evidence and did not adequately consider mitigating factors.

¶2 Following a bench trial, defendant Westry Clair was found guilty of one count of predatory

criminal sexual assault of a child and was sentenced to 15 years’ imprisonment. On appeal,

defendant contends his sentence was excessive where the trial court improperly relied on his No. 1-18-1667

shortcomings as a parent to his biological children as an aggravating factor because there was no

evidentiary support for the court’s comments on that issue, and where the court did not adequately

consider certain mitigating factors. We affirm.

¶3 Defendant was charged with two counts of predatory criminal sexual assault of a child (720

ILCS 5/11-1.40(a)(1) (West 2014)), which alleged he knowingly committed two separate acts of

sexual penetration by making contact between his penis and the sex organ of J.A., who was under

13 years of age. 1 As defendant solely challenges his sentence, we recite only those facts necessary

to decide this appeal.

¶4 Prior to trial, the State filed a motion to admit J.A.’s hearsay statements about defendant’s

behavior to her mother, Porchea A., her cousin, T.B., and an interviewer at the Chicago Children’s

Advocacy Center, Shawntae Jones, under section 115-10(b)(1) of the Code of Criminal Procedure

of 1963 (725 ILCS 5/115-10(b)(1) (West 2014)). The court granted the State’s motion.

¶5 J.A. testified she was nine years old at the time of trial. She previously lived with her

siblings, mother, and her mother’s boyfriend, defendant, whom she identified in court. On one

occasion when J.A.’s mother was at work and defendant was babysitting, he and J.A. were alone

in J.A.’s mother’s room. Defendant pulled down J.A.’s pants and “put his private part in [her]

private part.” It felt “[g]ross,” and J.A. left the room when defendant stopped. On another occasion,

defendant “put his private part in [J.A.’s] private part” while she was on the living room couch.

J.A. was six years old at the time of both incidents.

1 We use the victim’s initials to protect her privacy in this sexual assault case. See People v. Munoz-Salgado, 2016 IL App (2d) 140325, ¶ 1 n.1.

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¶6 The State introduced a video recorded interview of J.A. at the Chicago Children’s

Advocacy Center. In the video, J.A. states defendant “always” touched her when her mother was

at work, that it occurred more than one time, and that she was six years old the first time it occurred.

The first incident occurred in J.A.’s mother’s bedroom. Defendant’s “private part” touched the

inside of J.A.’s “private part,” which felt “nasty.” The second incident occurred when defendant

came into J.A.’s bedroom and did the “same thing.”

¶7 Porchea A. testified she previously lived with her two children and defendant, her ex-

boyfriend, whom she identified in court. J.A. is Porchea’s daughter. In April 2016, after defendant

had moved out of the house, J.A. began crying and told Porchea defendant had “touched” her more

than once. J.A. later specified defendant put his “private part” in her mouth.

¶8 The parties stipulated T.B. was 11 years old. J.A. is T.B.’s cousin. In April 2016, J.A. told

T.B. defendant had been “feeling on her” every time J.A.’s mother went to work.

¶9 Dr. Emily Sifferman testified she treated J.A. three times in 2016. J.A. tested positive for

chlamydia.

¶ 10 Defendant moved for a directed finding, which the court denied.

¶ 11 The parties stipulated Shawntae Jones interviewed T.B. at the Chicago Children’s

Advocacy Center in April 2016. T.B. stated J.A. told her defendant had been “feeling on her” and

“put his private part in [her] butt” one time.

¶ 12 The parties also stipulated Chicago police detective Alisa Gladney interviewed T.B. in

April 2016. T.B. stated J.A. told her defendant “touched her and tried to put his thing in her private”

and defendant “put his private in her butt.”

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¶ 13 Defendant testified he began dating Porchea in 2010, and they began living together in

2013. He took care of Porchea’s children, including J.A., while Porchea was at work. He loved

them as if they were his own and had raised them since 2010. Defendant denied he had any sexual

contact with J.A.

¶ 14 The court found defendant guilty of the first count of predatory criminal sexual assault of

a child, but acquitted him of the second count.

¶ 15 Defendant filed a motion for new trial, which was denied.

¶ 16 At the sentencing hearing, defendant only corrected the spelling of a mother’s name in the

Presentence Investigation Report (PSI), which had been distributed to both parties. The PSI

indicated defendant had six prior felony convictions for drug offenses between 2004 and 2012. It

contained information about his educational and employment histories, his plans to continue his

education in the future, and his history of substance abuse. The PSI also stated defendant had three

children by three different women to whom he was not married, and that his children were being

raised by their mothers. Defendant liked to spend his leisure time with his children.

¶ 17 In mitigation, defendant noted his close relationship with his family, his educational

background, and his “substantial” employment history. Defendant also stated he had “contributed

to the financial support of his three children when he’s been able to.” He noted he had become a

group leader of a Christian program in Cook County jail.

¶ 18 The court sentenced defendant to 15 years’ imprisonment. In announcing its ruling, the

court noted defendant was responsible for taking care of J.A. when he sexually assaulted her. He

abused this relationship “in the most unimaginable and unforgivable way,” “forever changing” the

seven year old child’s life. The court also stated that “although [defendant] had multiple felony

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convictions, none of them are for any type of violent crime; and given the nature of this offense,

that actually does enure to his benefit.” In addition, the court explained

“[Defendant] does have three children; but he doesn’t raise any of those children; and he

has three children, with three different Mothers. The Mothers raise those children.

He may contribute – or according to him, he has contributed. I don’t have any

reason to deny, but he doesn’t contribute like being a Father. He doesn’t contribute like

actually being there for those children on a daily basis, to try to prevent them from ending

up with 5 or 6 felony convictions as he did.

The ability to Father a child is somewhat inconsequential as far as compared to the

responsibility of fathering a child. They are about as far apart as being equals as I can

imagine. They are on opposite ends of the spectrum, unless you’re going to Father the child

and then really be a Father to that child.

So, I give him credit that he says he has provided some financial support through

the various temp agencies jobs that he’s received. He testified to, also, doing the same with

[Porchea], as I mentioned; but it is just a little bit lacking in what a real Father should be

doing.”

¶ 19 Defendant filed a motion to reconsider sentence, which argued the sentence was excessive

in light of his background and the nature of the offense, and that the court “improperly considered

in aggravation matters that are implicit in the offense.” The court denied this motion.

¶ 20 On appeal, defendant only challenges his 15-year sentence, and requests that we either

reduce his sentence or remand for resentencing. Defendant first argues the court improperly relied

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on his perceived shortcomings as a father as an aggravating factor, despite the fact there was no

evidence of those shortcomings before the court.

¶ 21 The State maintains, and we agree, defendant forfeited this argument by failing to properly

preserve it for appeal. To preserve a claim of sentencing error, a defendant must make a

contemporaneous objection and file a written posttrial motion raising the issue. People v. Hillier,

237 Ill. 2d 539, 544 (2010). Defendant did not make any objections at the sentencing hearing and

concedes “defense counsel did not raise this specific issue when seeking reconsideration of [his]

sentence.” Thus, defendant failed to preserve this claim of sentencing error, and has forfeited it on

appeal. See Hillier, 237 Ill. 2d at 544-45.

¶ 22 Defendant cites People v. Saldivar, 113 Ill. 2d 256, 266 (1986), for the proposition that a

claim the trial court relied on an improper sentencing factor need not be preserved by a

contemporaneous objection and a posttrial motion. But our supreme court has described Saldivar

as one of a few “extraordinary” cases in which that is true (People v. McLaurin, 235 Ill. 2d 478,

488 (2009)), and has confirmed the general rule that a claim of sentencing error must be preserved

by a contemporaneous objection and a posttrial motion. Hillier, 237 Ill. 2d at 544. This case does

not present extraordinary circumstances that would excuse defendant’s failure to address in the

trial court what he now claims was the primary factor sentencing factor. Thus, Saldivar does not

apply, and defendant has forfeited his challenge to the court’s comments about his role as a father.

¶ 23 Nevertheless, defendant seeks review under the plain error doctrine, which provides that

“[p]lain errors or defects affecting substantial rights may be noticed [on appeal] although they were

not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). However, the

plain error doctrine is not “ ‘a general saving clause preserving for review all errors affecting

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substantial rights whether or not they have been brought to the attention of the trial court.’ ” People

v. Maxey, 2018 IL App (1st) 130698-B, ¶ 35 (quoting People v. Herron, 215 Ill. 2d 167, 177

(2005)). “To obtain relief under this rule, a defendant must first show that a clear or obvious error

occurred.” Hillier, 237 Ill. 2d at 545. This is because without reversible error, “there can be no

plain error.” People v. Mitchem, 2019 IL App (1st) 162257, ¶ 37.

¶ 24 We note the parties disagree as to the standard of review. Defendant argues we should

review whether the trial court relied on an improper sentencing factor de novo; the State maintains

we must review this issue for an abuse of discretion. Under either standard, we would find

defendant is not entitled to resentencing. A trial court cannot ignore a mitigating factor, nor can it

consider an improper aggravating factor (People v. Higgins, 2016 IL App (3d) 140112, ¶ 29), such

as an aggravating factor based on speculation (People v. Zapata, 347 Ill. App. 3d 956, 964 (2004)).

However, a reviewing court can affirm a sentence despite an improper factor if the record shows

the weight placed on that factor was so insignificant it did not result in a greater sentence. People

v. Heider, 231 Ill. 2d 1, 21 (2008). That is the case here, so we need not decide which standard of

review applies.

¶ 25 Defendant has not met the threshold requirement for plain error review, which is

demonstrating that clear or obvious error occurred. Hillier, 237 Ill. 2d at 545. Predatory criminal

sexual assault of a child is a Class X felony with a sentencing range of 6 to 60 years’ imprisonment.

720 ILCS 5/11-1.40(b)(1) (West 2014). Defendant was sentenced to 15 years. His sentence is

within the statutory guidelines, so we presume it is proper. See People v. Snyder, 2011 IL 111382,

¶ 36.

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¶ 26 Defendant contends the trial court relied on an improper sentencing factor when it

overemphasized his perceived shortcomings as a father to his biological children, and there was

“no evidentiary support” for the court’s description of his performance as parent. However, even

if we find the trial court considered an improper factor, “remand for resentencing is necessary only

if the consideration resulted in a greater sentence.” Id. We do not focus on isolated statements;

rather, we consider the record as a whole. Id.

¶ 27 We find the trial court did not improperly consider defendant’s role as a father at

sentencing. First, viewing the record as a whole, its comments about defendant’s role as a father

simply rebutted defendant’s suggestion he should be granted leniency because he was close to his

family and supported his children financially. Second, both the PSI and defendant’s arguments in

mitigation supported the trial court’s statements that defendant had three children by three different

women, that his children were being raised by their mothers, and that defendant only supported

his children financially when he was able to do so. Finally, there is no basis in the record from

which we could conclude the trial court’s view of defendant’s performance as a father resulted in

a greater sentence. Thus, neither reduction nor resentencing is warranted. See Id. Defendant failed

to carry his burden of persuasion under the plain error standard, so the forfeiture of this claim of

sentencing error stands. See Hillier, 237 Ill. 2d at 545.

¶ 28 Defendant also argues his sentence is excessive because the court did not adequately

consider mitigating factors such as “the significant, concrete, and successful steps [he] was already

taking while awaiting trial to improve himself,” his nonviolent prior criminal history, his

relationship with his parents, “his history of drug addiction,” and the fact that this case “involved

no physical injury.”

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¶ 29 The existence of mitigating factors does not require a minimum sentence and does not

preclude a maximum sentence. People v. Harmon, 2015 IL App (1st) 122345, ¶ 123. Factors in

mitigation include a lack of serious physical harm to the victim and a defendant’s lack of criminal

activity for a substantial period before the offense at issue. 730 ILCS 5/5-5-3.1(a)(1), (7) (West

2014). The trial court may also consider a defendant’s character, social environment, age, and

habits. People v. Minor, 2019 IL App (3d) 180171, ¶ 27. A defendant’s rehabilitative potential is

relevant, but is not entitled to greater weight than the seriousness of the offense, which is the most

important factor in sentencing. People v. Alexander, 239 Ill. 2d 205, 214 (2010). We presume the

trial court considered all of the mitigating factors, and a defendant must present affirmative

evidence the trial court failed to consider mitigating factors to overcome that presumption. People

v. Gordon, 2016 IL App (1st) 134004, ¶ 51. Moreover, we will not substitute our judgment for that

of the trial court simply because we might balance the sentencing factors differently. Alexander,

239 Ill. 2d at 214-15.

¶ 30 Defendant fails to overcome the presumption the trial court appropriately considered all of

the mitigating factors. At the sentencing hearing, the court had received defendant’s PSI, and we

presume the court considered the mitigating evidence regarding his criminal, educational,

employment, and family histories in it. See People v. Sauseda, 2016 IL App (1st) 140134, ¶ 20.

Defendant also raised several of the same arguments at the sentencing hearing as he does on appeal.

Thus, the trial court not only read the mitigating evidence in the PSI; it heard the mitigating

evidence argued as well, and we presume the court considered it. See Id., ¶ 19. Moreover, the court

explicitly stated defendant’s lack of violent criminal history “enure[d] to his benefit,” and that it

“g[a]ve him credit” for providing some financial support to his children, as well as J.A.

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¶ 31 The lack of serious physical injury to J.A., defendant’s “history of drug addiction,” and his

involvement in a Christian group while in jail were all before the court as well, so we presume the

court considered those factors. See Id. Just because the court did not specifically discuss each of

those factors in passing sentence does not mean the court ignored them. See People v. Jones-Beard,

2019 IL App (1st) 162005, ¶ 24 (“[A] sentencing court need not state every factor it considered in

determining a defendant’s sentence.”). Defendant has failed to establish the trial court disregarded

any mitigating evidence.

¶ 32 Nor is there any basis to conclude defendant’s sentence is greatly at variance with the law

or manifestly disproportionate to the offense. See Alexander, 239 Ill. 2d at 212. Defendant was

sentenced for the predatory criminal sexual assault of a six-year-old girl entrusted to his care, so it

is not manifestly disproportionate that the trial court imposed a substantial prison sentence. We

also note defendant’s sentence is 45 years less than the maximum for predatory criminal sexual

assault of a child. See 720 ILCS 5/11-1.40(b)(1) (West 2014). Accordingly, we find his sentence

of 15 years was proper.

¶ 33 For the foregoing reasons, we affirm defendant’s sentence.

¶ 34 Affirmed.

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