People v. Delreal

2023 IL App (4th) 220401-U

• Court: Appellate Court of Illinois
• Decided: January 12, 2023
• Docket: 4-22-0401
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220401-U This Order was filed under Su- FILED preme Court Rule 23 and is not NO. 4-22-0401 January 12, 2023 precedent except in the limited Carla Bender circumstances allowed under 4th District Appellate Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County ALEJANDRO DELREAL, ) No. 17CF3108 Defendant-Appellant. ) ) Honorable ) Robert R. Wilt, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Presiding Justice DeArmond and Justice Knecht concurred in the judgment.

ORDER

¶1 Held: Defendant forfeited his contention the circuit court’s resentence was a punishment for his actions on probation.

¶2 In December 2017, a grand jury indicted defendant, Alejandro Delreal, with one

count of aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2016)). At a November 2018

hearing, defendant pleaded guilty to the charge pursuant to a negotiated plea agreement, and the

Winnebago County circuit court sentenced him to 30 months’ probation to begin upon his release

from the Department of Corrections (DOC). In February 2021, the State filed a petition to

revoke defendant’s probation based on a new criminal charge against defendant and other

violations of probation terms. In June 2021, the State filed an amended petition to revoke

probation, alleging 15 probation violations. At a September 2021 hearing, defendant admitted

committing one of the alleged probation violations. After a January 2022 hearing, the court resentenced defendant to three years’ imprisonment. Defendant filed a motion for

reconsideration of his sentence, which the court denied in May 2022.

¶3 Defendant appeals, contending the circuit court abused its discretion when it

sentenced defendant for the probation violation instead of the offense for which he was

convicted. We affirm.

¶4 I. BACKGROUND

¶5 Defendant and the State entered into a negotiated plea agreement, under which

defendant would plead guilty to the aggravated domestic battery charge in this case and receive a

sentence of 30 months’ probation, as well as other fines, fees, and conditions. The plea

agreement also involved charges in other cases that are not part of this appeal. The probation

period was to begin upon his release from DOC on sentences in the other cases.

¶6 On November 5, 2018, the circuit court held a plea hearing. The court

admonished defendant and heard the following factual basis for the plea. On October 28, 2017, a

police officer met with Maria Hernandez at the Swedish American Hospital in reference to a

domestic battery complaint. The officer observed Hernandez’s face was swollen and she had red

marks around her nose and mouth. Hernandez stated her head and neck were sore and it hurt for

her to speak. She told the officer she had been married to defendant for 10 years but had filed

for divorce a couple of months earlier. When Hernandez arrived home, she found defendant

there, and he was extremely intoxicated. A verbal argument ensued, and Hernandez asked

defendant to leave. Hernandez stated defendant made a movement like he was going to punch

her but only went halfway, as if to scare her. Defendant then punched Hernandez in the face,

causing her to fall off of the bed on which she had been lying with her baby. Hernandez further

explained she landed on her back, and defendant quickly got on top of her and straddled her.

-2- While defendant straddled Hernandez, he punched her in the face multiple times. Hernandez

said defendant eventually stood up and left. As a result of the attack, Hernandez suffered a

broken eardrum. The court accepted defendant’s plea and sentenced him to 30 months’

probation.

¶7 In February 2021, the State filed a petition to revoke defendant’s probation,

alleging five probation violations. In June 2021, the State filed an amended petition to revoke

defendant’s probation, asserting 15 probation violations. Paragraph 11 of the amended petition

asserted defendant failed to cooperate with and successfully complete anger-management

counseling, as requested since November 5, 2018. At a September 1, 2021, hearing, defendant

admitted the allegation in paragraph 11 of the amended petition to revoke his probation. The

factual basis for the admission was defendant was ordered to successfully complete anger-

management counseling as part of his probation, and defendant’s probation officer would testify

defendant did not successfully complete the anger-management counseling as directed.

¶8 On January 12, 2022, the circuit court held defendant’s resentencing hearing. The

State presented the October 2021 presentence investigation report and defendant’s January 2022

probation report. Defendant testified he was currently employed at Slidematic through an

employment agency. He also made a statement in allocution. Defendant stated he was not the

same person he was a year ago. He had overcome mental-health issues and addiction.

Defendant noted he had maintained his employment and was close to getting hired by the

factory. Defendant further testified he was trying to be a better person and father. The State

requested defendant be sentenced to DOC. The State cited numerous reasons for such a

sentence, including the fact defendant had missed a probation appointment after the circuit court

had told him at the last court date he needed to perfectly comply with probation conditions.

-3- Defense counsel requested defendant be sentenced to another term of probation. The court first

addressed the State’s arguments about defendant’s recent noncompliance with probation. It then

weighed the factors in mitigation and aggravation, which included discussing defendant’s

conduct while on probation. The court then reviewed the facts of the aggravated domestic

battery. The court made one additional comment about defendant’s recent actions and sentenced

defendant to a prison term of three years.

¶9 Defendant filed a timely motion to reconsider his resentence, asserting his three-

year prison sentence was excessive in light of the nature and circumstances of the offense and his

history and character. He also argued the circuit court’s resentence failed to take into

consideration his rehabilitative potential and the statutory factors in mitigation. After a May 12,

2022, hearing, the court denied defendant’s motion to reconsider his sentence.

¶ 10 That same day, defendant filed a timely notice of appeal, but it did not accurately

describe the appealed judgment. On May 18, 2022, defendant filed a timely amended notice of

appeal in sufficient compliance with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021), which

listed defendant’s probation revocation, resentence, and denial of his motion to reconsider the

resentence. See Ill. S. Ct. R. 303(b)(5) (eff. July 1, 2017); R. 606(d) (eff. Mar. 12, 2021).

Accordingly, this court has jurisdiction of defendant’s appeal under Illinois Supreme Court Rule

603 (eff. Feb. 6, 2013).

¶ 11 II. ANALYSIS

¶ 12 Defendant asserts the circuit court abused its discretion in sentencing him because

the court’s resentence was based on his actions while on probation and not for the original

offense. Defendant recognizes he did not raise this issue in the circuit court and asserts we

should review the claim under the plain-error doctrine (Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967)).

-4- ¶ 13 The plain-error doctrine permits a reviewing court to consider unpreserved error

under the following two scenarios:

“(1) a clear or obvious error occurred and the evidence is so closely balanced that

the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) a clear or obvious error occurred

and that error is so serious that it affected the fairness of the defendant’s trial and

challenged the integrity of the judicial process, regardless of the closeness of the

evidence.” People v. Sargent, 239 Ill. 2d 166, 189, 940 N.E.2d 1045, 1058

(2010).

We begin a plain-error analysis by first determining whether any error occurred at all. Sargent,

239 Ill. 2d at 189, 940 N.E.2d at 1059. If error did occur, this court then considers whether

either of the two prongs of the plain-error doctrine has been satisfied. Sargent, 239 Ill. 2d at

189-90, 940 N.E.2d at 1059. “Under both prongs of the plain-error doctrine, the defendant has

the burden of persuasion.” People v. Hillier, 237 Ill. 2d 539, 545, 931 N.E.2d 1184, 1187

(2010). If the defendant fails to meet his or her burden of persuasion, the reviewing court applies

the procedural default. Hillier, 237 Ill. 2d at 545, 931 N.E.2d at 1188.

¶ 14 After revoking a defendant’s probation, the circuit court may resentence a

defendant to any sentence that would have been appropriate for the original offense. People v.

Young, 138 Ill. App. 3d 130, 134-35, 485 N.E.2d 443, 445 (1985); 730 ILCS 5/5-6-4(e) (West

2016). The court may consider the defendant’s conduct while on probation in reassessing

rehabilitative potential. Young, 138 Ill. App. 3d at 135, 485 N.E.2d at 445. As such, the court

may impose a more severe sentence than the one initially imposed if the defendant’s conduct on

probation reflected poorly on his or her rehabilitative potential. People v. Turner, 233 Ill. App.

-5- 3d 449, 456-57, 599 N.E.2d 104, 110 (1992). However, the sentence imposed must not be

punishment for the probation violation. Young, 138 Ill. App. 3d at 135, 485 N.E.2d at 445. This

court will not find a sentence within the statutory range for the offense was an abuse of the

sentencing court’s discretion unless we are “strongly persuaded” the circuit court intended to

penalize the defendant for violating his or her probation. Young, 138 Ill. App. 3d at 142, 485

N.E.2d at 450.

¶ 15 Aggravated domestic battery is a Class 2 felony with a sentencing range of three

to seven years in prison. 720 ILCS 5/12-3.3(b) (West 2016); 730 ILCS 5/5-4.5-35(a) (West

Supp. 2017). Thus, defendant’s three-year sentence was well within the sentencing range and

was the minimum possible prison term.

¶ 16 In support of his argument, defendant cites People v. Varghese, 391 Ill. App. 3d

866, 877, 909 N.E.2d 939, 949 (2009), where the reviewing court was convinced the trial court

punished the defendant for his conduct while on probation and held the trial court abused its

discretion in resentencing the defendant. There, on resentence, the trial court had resentenced

the defendant to the maximum term of seven years’ imprisonment, and evidence had been

presented defendant had attempted to meet up with a 16-year-old girl while he was on sex-

offender probation. Varghese, 391 Ill. App. 3d at 869, 875, 909 N.E.2d at 942, 947. In

explaining its decision to reverse the trial court’s resentence, the reviewing court stated the

following:

“Here, the remarks of the trial court in their totality clearly indicate that it never

expressly considered defendant’s original offense when fashioning his sentence.

Rather, the trial court’s concluding comments, by focusing on defendant’s

conduct while on probation, demonstrate that it improperly commingled

-6- uncharged conduct with his original offense. Immediately prior to imposing

sentence, the trial court chastised defendant for the reprehensible nature of his

conduct while on probation. It stated in summation: ‘This conduct is intolerable.

This conduct is dangerous.’ Read in context, the phrase ‘this conduct’ clearly

referred to defendant’s conduct while on probation. That the trial court’s final

sentencing determination immediately followed this statement and a lengthy

discussion about the certainty of the uncharged conduct strongly indicates that

defendant was sentenced for such particular ‘dangerous’ and ‘intolerable’

uncharged conduct. If this conduct constitutes another offense, defendant should

be tried, convicted, and sentenced ‘under orderly criminal processes.’ [Citation.]

With only a passing reference to defendant’s original offense, it is apparent that

the trial court improperly commingled defendant’s conduct while on probation

with his original offense.” Varghese, 391 Ill. App. 3d at 877, 909 N.E.2d at 949.

¶ 17 Defendant argues that, here, the circuit court similarly focused its comments on

defendant’s behavior while on probation. We disagree.

¶ 18 First, the circuit court’s initial comments about defendant’s most recent

noncompliance with probation were in response to the State’s argument. After the initial

comments, the court then considered the statutory factors in mitigation (730 ILCS 5/5-5-3.1

(West 2016)) and aggravation (730 ILCS 5/5-5-3.2 (West 2016)). With some of the factors, the

court did consider defendant’s behavior on probation, both positive and negative. The court also

noted defendant’s long list of noncompliance with court orders, starting in 2010. While

defendant’s probation conduct was mentioned during the court’s discussion of the aggravating

and mitigating factors, it was certainly not the overall focus of the circuit court’s comments. The

-7- court then went through defendant’s conduct that was the basis for the aggravated domestic

battery conviction. Defendant’s conduct was egregious in that he punched his then wife

numerous times with their baby nearby. That conduct could clearly warrant a three-year prison

term.

¶ 19 Last, before imposing the three-year sentence, the court did state the following:

“You know, I continued this sentencing from November 9th with the agreement of the parties

because he had a diluted drop but otherwise he was doing relatively well, and now we have

another problem.” However, the court’s statement does not reflect an impassioned reaction to

defendant’s conduct while on probation like the court in Varghese, where the court referred to

defendant’s conduct on probation as “ ‘intolerable’ ” and “ ‘dangerous.’ ” Varghese, 391 Ill.

App. 3d at 877, 909 N.E.2d at 949. Moreover, the court’s final statement was brief in

comparison to the preceding discussion of the facts underlying the original offense. It also was

an explanation of why defendant was not receiving the probation sentence he had requested.

Reading the remarks of the circuit court at sentencing in context and in their entirety, including

arguments of counsel (Young, 138 Ill. App. 3d at 142, 485 N.E.2d at 450), we are not strongly

persuaded the circuit court’s sentence was punishment for defendant’s probation violation. The

court’s comments were clearly referring to the determination of whether defendant would

comply with the terms of another period of probation.

¶ 20 Since we have found no error, we do not address defendant’s plain-error argument

and apply the forfeiture doctrine.

¶ 21 III. CONCLUSION

¶ 22 For the reasons stated, we affirm the Winnebago County circuit court’s judgment.

¶ 23 Affirmed.

-8-