People v. Hamilton

2020 IL App (2d) 190712-U

Opinion

2020 IL App (2d) 190712-U No. 2-19-0712 Order filed June 29, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

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. 19-CF-787 ) KATRINA Y. HAMILTON, ) Honorable ) George J. Bakalis, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices McLaren and Bridges concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in sentencing defendant to five years’ imprisonment for burglary: defendant’s long criminal history and lack of rehabilitative potential outweighed the mitigating factors of her poor mental health, drug addiction, and financial hardship; and the record refuted her claim that the court did not consider whether probation was appropriate.

¶2 Defendant, Katrina Y. Hamilton, was charged with retail theft (720 ILCS 5/16-25(a)(1),

(a)(3), (f)(2) (West 2018)) and burglary (720 ILCS 5/19-1(a) (West 2018)). She entered an open

plea of guilty to burglary; the theft charges were dismissed. The trial court sentenced her to five

years’ imprisonment. On appeal, defendant argues that her sentence is excessive. We affirm. 2020 IL App (2d) 190712-U

¶3 I. BACKGROUND

¶4 The charges were based on the allegation that, on January 28, 2019, defendant did not pay

full retail value for shoes she took from a Marshall’s store in Yorktown Center. The burglary

count alleged that she entered the store intending to commit a theft therein. The court accepted

the plea and ordered a presentencing investigation report (PSIR).

¶5 The PSIR, filed on July 10, 2019, provided the following information. Defendant was born

January 29, 1971. An investigator for the parent company of Marshall’s stated that, in 2019,

defendant had caused a total loss of $803.87 by thefts at the Yorktown Center store and three Cook

County stores. In a letter to the trial judge, dated July 1, 2019, defendant apologized for her

offenses and said that her six-month old child had become seriously ill as a result of defendant’s

drug problems.

¶6 Defendant had no juvenile record, but her history of adult offenses took up approximately

seven pages and listed more than 40 separate convictions. The vast majority were nonviolent. The

earliest was a 1990 conviction of theft. Among the more serious convictions thereafter were

possession of a controlled substance (1991) (14 months’ probation); illegal possession of

prescription forms (1994) (24 months’ probation and 6 months’ inpatient drug treatment); theft

(1995) (6 months’ periodic imprisonment and 24 months’ probation, terminated unsatisfactorily

in 1996); retail theft (1996) (12 months’ imprisonment); retail theft (1997) (24 months’

imprisonment); retail theft (1999) (24 months’ imprisonment); retail theft (2002) (30 months’

probation, with Treatment Alternatives to Street Crime (TASC) (20 ILCS 301/40-5 et seq. (West

2002)), probation revoked in 2004 with resentencing to 54 months’ imprisonment); retail theft

(2003) (30 months’ probation with TASC, probation revoked with resentencing to 150 days’ time

considered served in jail); retail theft (2003) (24 months’ drug court probation, terminated

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unsatisfactorily in 2004); retail theft (2005) (24 months’ probation with TASC as condition,

probation revoked in 2005 with resentencing to 24 months’ probation, probation revoked in 2006

with resentencing to 5 years’ imprisonment with TASC); retail theft (2006) (12 months’

imprisonment); aggravated battery (2009) (24 months’ mental health probation, terminated

unsatisfactorily); retail theft (2010) (24 months’ imprisonment); retail theft (2012) (24 months’

imprisonment); theft (2013) (18 months’ imprisonment); theft (2015) (12 months’ imprisonment);

retail theft (2016) (24 months’ imprisonment); theft (2016) (12 months’ imprisonment); and theft

(2019) (12 months’ imprisonment).

¶7 The PSIR stated that defendant had two adult children. A daughter, born January 3, 2019,

might need a liver transplant because of complications from defendant’s drug use during

pregnancy. Defendant resided in Chicago with her boyfriend. She dropped out of high school in

her junior year in 1984 and had been unemployed for the last 10 years. Her boyfriend supported

her financially.

¶8 The PSIR stated that defendant reported that she started using heroin at age 19 and

increased her level of use over time. In 2002, an alcohol/drug evaluation recommended residential

treatment. On June 11, 2003, defendant began treatment at Safe Haven in Chicago, but, on August

4, 2003, her treatment was terminated for her noncompliance, unauthorized movements, tardiness

to meetings, and verbal threats to staff. Defendant stated without verification that, in 2007, she

completed 28 days of residential treatment at Safe Haven but did not follow a recommendation for

outpatient treatment. On June 6, 2019, a TASC evaluation diagnosed her with a severe opioid

disorder and recommended intensive outpatient treatment.

¶9 According to the PSIR, defendant reported that she was currently taking prescribed

medicines for schizophrenia and depression. Her report was not verified. She also stated that she

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had received psychiatric and mental health counseling in 1990 and 2010, but the investigator could

not find listings for either hospital at which defendant had reportedly been treated.

¶ 10 On July 15, 2019, the trial court held a sentencing hearing. There was no testimony. The

State noted that defendant had been found guilty 29 times of theft or deception, had been

incarcerated 14 times, and had had her probation terminated unsatisfactorily 5 times. The State

asked the court to sentence defendant to seven years’ imprisonment. Defendant argued that she

wanted to address her drug addiction. She had been given opportunities in the past and had failed

to follow through on them, but she was “at a different place in her life now.” She requested

probation with TASC as a condition.

¶ 11 The judge stated that he had reviewed the PSIR and considered the pertinent factors in

aggravation and mitigation. By his count, defendant had 22 prior felony convictions and had been

imprisoned 14 times. When she was given probation, she had “basically been a failure.”

Defendant had been granted probation with TASC four times and failed each time; had been

granted drug court twice and failed once; and had been granted mental health court three times and

failed each time. The judge concluded, “[t]he problem with [defendant] frankly is she cannot in

any way, for whatever reason, comport herself to the requirements of the law.” The court

continued, “She is going to continue to offend if she is out on the street.” He pronounced a sentence

of 5 years’ imprisonment and recommended that defendant be placed in a facility where drug

treatment was available. After her motion to reconsider sentence was denied, defendant timely

appealed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant contends that her five-year prison sentence is excessive. She argues

specifically that (1) the trial court did not sufficiently consider certain factors in mitigation,

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including her mental health history, her drug addiction, and the hardship that imprisoning her

might work on her infant daughter; and (2) the court did not consider whether probation was

appropriate under section 5-6-1(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5-6-

1(a) (West 2018)).

¶ 14 The trial court has broad discretion in sentencing, and we may not disturb a sentence that

is within the statutory limits unless it 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, 209-

10 (2000). If mitigating evidence was before the court, we presume that the court considered it,

absent some indication otherwise. People v. Ressa, 2019 IL App (2d) 170439, ¶ 53. Where the

record shows that the court acknowledged the PSIR, we presume that the court took into account

the defendant’s rehabilitative potential. People v. Colbert, 2013 IL App (1st) 112935, ¶ 25.

¶ 15 Defendant contends first that the record does not establish that the judge sufficiently

considered her history of mental illness, her drug addiction, and the potential hardship that

incarceration would cause her infant daughter. Her argument is based on negative inferences from

the judge’s explanation of his sentencing decision. However, this reasoning simply shifts the

burden to the State to show that no error occurred. The factors that defendant lists were detailed

in the PSIR and raised at the sentencing hearing. Moreover, the judge discussed defendant’s

rehabilitative potential, to which the first two factors are primarily pertinent. The judge explicitly

addressed defendant’s history of mental illness and drug addiction, noting specifically that she had

failed to take advantage of her opportunities to deal with these problems by following through with

several offers of treatment. Finally, the judge specifically recommended placing defendant in a

facility where drug treatment was available.

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¶ 16 Further, we note that defendant’s mental-health history consisted primarily of self-

reporting that was not corroborated by independent investigation. Also, defendant stated that she

had been unemployed for a decade and was contributing little to her own support. Therefore, her

imprisonment would not work economic hardship on her daughter. The judge had ample reason

to conclude that neither defendant’s mental-health history nor the needs of her child outweighed

her long-standing inability to rehabilitate herself or to moderate her nearly incessant criminal

activity.

¶ 17 The record not only fails to rebut the presumption that the judge considered the factors that

defendant cites but shows affirmatively that he did consider most of them. He did not find these

factors mitigating to the degree that defendant hoped.

¶ 18 Defendant contends second that the judge failed to follow the dictates of section 5-6-1(a)

of the Code, which reads:

“(a) Except where specifically prohibited by other sections of this Code, the court

shall impose a sentence of probation or conditional discharge upon an offender unless,

having regard to the nature and circumstance of the offense, and to the history, character

and condition of the offender, the court is of the opinion that;

(1) his imprisonment or periodic imprisonment is necessary for the

protection of the public; or

(2) probation or conditional discharge would deprecate the seriousness of

the offender’s conduct and would be inconsistent with the ends of justice.” 730

ILCS 5/5-6-1(a)(1), (a)(2) (West 2018).

Defendant argues that the trial judge disregarded the commands of the foregoing language.

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¶ 19 The record refutes defendant’s argument. The judge stated that defendant had received

probation numerous times but had “basically been a failure.” Not only did the judge emphasize

“the history, character and condition of the offender,” (730 ILC 5/5-6-1(a) (West 2018)), he

implied that her imprisonment was “necessary for the protection of the public” (id. § 6-1(a)(1))

because she was incapable of obeying the law. This conclusion was well warranted, given

defendant’s extreme recidivism and the proven futility, over more than two decades, of showing

her leniency through probation.

¶ 20 Moreover, section 5-6-1 of the Code did not require a sentence of probation instead of

imprisonment; the choice of penalty was still within the trial court’s discretion. See People v.

Ruskey, 149 Ill. App. 3d 482, 494 (1986). Defendant’s reliance on this provision is unavailing.

¶ 21 Finally, to the extent that defendant contends that her sentence was excessive under all the

circumstances, we disagree. The sentencing range for her conviction was three to seven years’

imprisonment (see 720 ILCS 5/19-1(b) (West 2018) (burglary is a Class 2 felony); 730 ILCS 5/4.5-

35(a) (West 2018) (range for Class 2 felonies is three to seven years). Defendant’s sentence is in

the middle of the range. Considering her extremely long criminal record and the proven

ineffectiveness of lesser punishments, her five-year sentence is not excessive.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

¶ 24 Affirmed.

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