People v. Flores

Opinion

No. 2-08-1185 Filed: 9-16-10 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 07--CF--2396 ) LUIS E. FLORES, ) Honorable ) Perry R. Thompson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the opinion of the court:

On October 2, 2007, defendant, Luis E. Flores, was indicted on two counts of predatory

criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 2006)), a Class X felony with

a sentencing range of 6 to 30 years' imprisonment1 (720 ILCS 5/12--14.1(b)(1) (West 2006)). On

July 17, 2008, defendant entered a blind guilty plea to one count, and the State agreed to dismiss the

other count. Defendant was sentenced to 20 years' imprisonment. A motion to reconsider sentence

1 This is the applicable sentencing range as of the date the crime was committed. However, an amended statute that came into effect June 1, 2008, calls for a sentencing range of 6 to 60 years'

imprisonment. See 720 ILCS 5/12--14.1(b)(1) (West 2008). Defendant pleaded guilty on July 17,

2008, and he was sentenced on September 3, 2008; however, defendant is allowed to be penalized

under the more lenient range. See People v. Calhoun, 377 Ill. App. 3d 662, 664 (2007), quoting

People v. Hollins, 51 Ill. 2d 68, 71 (1972). No. 2--08--1185

was heard and denied, and defendant timely appeals, arguing that his sentence is excessive. We

affirm.

According to the factual basis for the plea, Carmen Easton, an investigator for the Du Page

County Children's Center, would have testified that she responded to a call regarding D.M., an eight-

year-old girl. D.M. told Easton that defendant had made her perform oral sex on him in a bathroom

in the home where they both resided, and that it happened more than once. Defendant stipulated to

the factual basis, and the trial court accepted defendant's plea.

A sentencing hearing took place on September 3, 2008. In aggravation, police detective

Charles May testified that he found D.M. locked in her basement bedroom. D.M. told May that she

locked herself in the room after the latest incident because she was scared, and she said that these

incidents had happened three other times at this residence and several other times where they lived

previously. May also stated that, while he was at the house, defendant walked by D.M. and she

grabbed onto May's right leg with both of her arms, telling him she was scared.

Then, Roberto Gonzalez, a case manager at the Children's Center, read the victim impact

statement of Rosa M., D.M.'s mother. In her statement, Rosa expressed her disgust and anger at

defendant, who "abused our trust and changed [D.M.'s] life forever." She also stated that since the

incidents D.M. had changed from a happy, affectionate child to one who cannot trust others and is

often very sad; D.M. suffers from nightmares of defendant, and she fears that defendant will hurt her

again; and D.M.'s grades have fallen because she cannot stay focused. D.M. was scheduled to start

counseling one week after the sentencing hearing.

In mitigation, defendant's father, Enrique Flores, testified that defendant behaved "regularly

well" as a child and that, while in Mexico, defendant had no problems with government or school

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authorities. Defendant came to the United States without his father when he was 15 years old. Since

defendant's imprisonment, his father had visited defendant 10 or 15 times and defendant had written

letters to him. Defendant repeatedly expressed remorse for his actions.

The prosecutor recommended 21 years' imprisonment, citing defendant's history of uncharged

criminal conduct with another minor (D.M.'s sister), the seriousness of the present offense, the

repeated violations with D.M., the need for punishment and deterrence of defendant and others, and

that defendant had been a trusted member of the household. The prosecutor also mentioned

defendant's illegal status.

Defense counsel asked for eight years' imprisonment based on defendant's minimal criminal

history, his remorse, and the expense of incarcerating criminals. Defense counsel noted that the

uncharged conduct was with D.M.'s sister, that defendant was 17 years old at the time, and that

defendant was living with the family. Then, counsel read a letter from defendant to the court,

expressing defendant's remorse and apologies to all those he hurt. Defendant asked that the court

have mercy on him so as not to deprive his four children of their father. Finally, in allocution,

defendant reiterated his request for forgiveness and said, "I think that I'm--I'm never going to do it

again."

In fashioning defendant's 20-year sentence, the trial judge noted defendant's age, defendant's

minimal criminal history, the effects on D.M., the repeated occurrences of the conduct in multiple

residences, his uncharged conduct with another minor, and that defendant had been a trusted member

of the household. The court also stated that it was better to pay to incarcerate someone than to pay

for investigating another crime and that defendant's deportation upon release was a collateral

consequence. The court stated that protecting the public was a primary concern.

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On December 3, 2008, the trial court heard and denied a motion to reconsider sentence,

where defendant asserted that his sentence was excessive and that the trial court erred in considering

uncharged criminal conduct. The trial court expressly stated that "the court considered those things

which it believed were relevant" and that it "considered all the factors in aggravation and mitigation,

including the rehabilitative potential" of defendant. Defendant timely appeals.

Defendant maintains that his sentence is excessive because the trial court did not correctly

weigh mitigating factors, the sentence is contrary to the purpose and spirit of the law, and the

sentence violates the constitutional mandate that it reflect his rehabilitative potential. He asks this

court to reduce his sentence or alternatively to vacate his sentence and remand for a new sentencing

hearing. We affirm, as the sentence was not an abuse of discretion.

The Illinois Constitution requires that "[a]ll penalties shall be determined both according to

the seriousness of the offense and with the objective of restoring the offender to useful citizenship."

Ill. Const. 1970, art. I, §11. A sentence within the statutory limits for the offense will not be

disturbed unless the trial court has abused its discretion. People v. Coleman, 166 Ill. 2d 247, 258

(1995). An abuse of discretion occurs if the trial court imposes a sentence that "is greatly at variance

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

People v. Stacey, 193 Ill. 2d 203, 210 (2000). It is well established that "[a] trial court has wide

latitude in sentencing a defendant, so long as it neither ignores relevant mitigating factors nor

considers improper factors in aggravation." People v. Roberts, 338 Ill. App. 3d 245, 251 (2003).

The existence of mitigating factors does not mandate imposition of the minimum sentence (People

v. Garibay, 366 Ill. App. 3d 1103, 1109 (2006)) or preclude imposition of the maximum sentence

(People v. Pippen, 324 Ill. App. 3d 649, 652 (2001)). It is the trial court's responsibility "to balance

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relevant factors and make a reasoned decision as to the appropriate punishment in each case."

People v. Latona, 184 Ill. 2d 260, 272 (1998). The reviewing court is not to reweigh factors

considered by the trial court. Pippen, 324 Ill. App. 3d at 653.

Defendant's argument that the trial court sentenced him without giving proper weight to

mitigating factors is without merit. There is a presumption that a trial court considered all relevant

factors in determining a sentence, and that presumption will not be overcome without explicit

evidence from the record that the trial court did not consider mitigating factors. People v. Payne, 294

Ill. App. 3d 254, 260 (1998). Such a showing was not made in this case. The trial court fully

reviewed all evidence before it, and on the motion to reconsider, the trial court explicitly stated that

it reviewed all factors, including defendant's rehabilitative potential. As noted, it is not our province

to reweigh those factors.

Next, defendant contends that his sentence is contrary to the purpose and spirit of the law

because he "basically did no more than what was required to violate the predatory criminal sexual

assault of a child statute," and thus he should have received a lesser sentence. The premise of this

argument is incorrect. Given the trial court's ability to observe defendant's demeanor and other

intangible factors, a sentence above the minimum would not necessarily be contrary to the purpose

and spirit of the law even had defendant committed the minimum conduct to violate the statute. See

People v. Smith, 214 Ill. App. 3d 327, 338-39 (1991). In any event, defendant did not commit the

minimum conduct.

The minimum conduct to violate the statute is an act of sexual penetration by one 17 years

old with a victim under 13 years old. See 720 ILCS 5/12--14.1(a)(1) (West 2008). In this case,

defendant was 22 years old and D.M. was 8 years old. Defendant asked D.M. to enter the bathroom,

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which she did. He then pulled down his shorts, rubbed his penis, put his penis in D.M.'s mouth, and

told her to suck on it. He ejaculated in her mouth and on her chin, and, after telling her to clean up

with a tissue, he told her not to tell anyone about what had happened. When police arrived, they

found D.M. locked in her room, and D.M. told police that she was afraid of defendant. Further, this

was not the first episode of this conduct; defendant admitted to six or seven previous occurrences

in two separate residences. Obviously, this was not the minimum conduct to violate the statute, and

thus the sentence of 20 years' imprisonment is not contrary to the purpose and spirit of the law.

Finally, defendant claims that "the sentence does not serve the lower court's object of

protection of the public where the defendant *** is highly unlikely to offend again," and thus it

violates the constitutional mandate that it reflect his rehabilitative potential. Defendant claims that

his character and history show high rehabilitative potential, citing specifically his minimal criminal

history, his expressed remorse, and his statement, "I'm never going to do it again." Defendant claims

also that his lack of education and experience in American culture, in that he was only 22 years old,

he had held only one job, and he was an illegal immigrant, contributed to his conduct.

The rehabilitative potential of a defendant is only one of the factors that needs to be weighed

in deciding a sentence, and the trial court does not need to expressly outline its reasoning for

sentencing or explicitly find that the defendant lacks rehabilitative potential. People v. Evans, 373

Ill. App. 3d 948, 968 (2007). The most important sentencing factor is the seriousness of the offense.

Evans, 373 Ill. App. 3d at 968. "[T]he nature and circumstances of the offense and the history and

character of the defendant will be the governing factors" of rehabilitative potential. People v. Gibbs,

49 Ill. App. 3d 644, 649 (1977).

Despite defendant's argument, a variety of factors indicated poor rehabilitative potential.

Defendant repeatedly abused D.M.; he had engaged in uncharged conduct with another minor; he

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remained in school only through sixth grade; and he reported having held only one job, and even that

job could not be verified. Finally, defendant stated, "I think that I'm--I'm never going to do it again,"

not "I'm never going to do it again." Considering these factors, we cannot say that defendant's

sentence fails to reflect his rehabilitative potential.

Defendant's status as an illegal immigrant is not a statutory ground in mitigation (see 730

ILCS 5/5--5--3.1(a) (West 2006)). As to defendant's argument that his status reflects his ignorance,

which shows his rehabilitative potential, logically it does not follow that defendant will be "restored

to useful citizenship" when he is not a citizen of this country and will not remain here after

incarceration to learn our mores and values. To whatever degree that being an illegal immigrant is

a mitigating factor, the trial court was aware of defendant's status, as it explicitly commented on his

deportation; thus we presume that the trial court gave it any appropriate mitigating weight. See

Payne, 294 Ill. App. 3d at 260.

In sum, the judge did not abuse his discretion in sentencing defendant. The record reflects

that the judge thoroughly considered defendant's statement and the mitigating and aggravating

factors. The crux of defendant's argument is that the judge gave insufficient weight to the mitigating

evidence. However, although some mitigating evidence was present, there were plenty of

aggravating factors as well. Given the trial court's broad discretion in sentencing, the seriousness

of the crime, and defendant's limited rehabilitative potential, defendant's 20-year sentence was not

an abuse of discretion.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

BOWMAN and HUTCHINSON, JJ., concur.

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