People v. Hamilton

2022 IL App (2d) 210441-U
Appellate Court of Illinois·Decided September 23, 2022·No. 2-21-0441·Unpublished·Cited by 1 cases

Opinion

2022 IL App (2d) 210441-U No. 2-21-0441 Order filed September 23, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 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 Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-1346 ) KEVIN J. HAMILTON, ) Honorable ) Donald M. Tegeler Jr. Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Jorgensen and Birkett concurred in the judgment.

ORDER

¶1 Held: (1) Defendant’s eight-year prison sentence imposed after revocation of his probation for attempted armed robbery was intended as punishment for the original offense and not for his substantial misconduct while on probation, which the trial court emphasized only to show defendant’s lack of rehabilitative potential. (2) Defendant’s sentence, which was below the midpoint for the offense, was not excessive given the significant aggravating factors.

¶2 Defendant, Kevin J. Hamilton, appeals a judgment revoking his probation for attempted

armed robbery (720 ILCS 5/8-4(a), 18-2(a)(2) (West 2016)) and resentencing him to eight years’

imprisonment. On appeal, defendant contends that his sentence was improperly imposed as 2022 IL App (2d) 210441-U

punishment for his conduct while on probation and not for the underlying offense. Defendant also

argues that his sentence is excessive. We affirm.

¶3 I. BACKGROUND

¶4 On November 9, 2016, defendant pleaded guilty to attempted armed robbery in this case

and aggravated robbery in case No. 16-CF-1347. The State presented the following factual basis

for the former plea in this case. On August 6, 2016, defendant, while dressed in a hooded

sweatshirt that covered his face, was with a friend in a vehicle outside the Circle K gas station in

Elgin. Defendant was given a gun with which to threaten the clerk and demand money. He exited

the vehicle and approached the building but left without committing the robbery. The factual basis

for the plea in case No. 16-CF-1347 was that, on August 7, 2016, defendant, while wearing a

sweatshirt with a hood that concealed his face, entered a 7-Eleven store, approached a clerk behind

a counter, displayed what appeared to be a real gun, and obtained $150 in cash. Per the parties’

agreement, the trial court sentenced defendant to concurrent probation terms of 48 months.

¶5 On May 30, 2017, the State petitioned to revoke defendant’s probation in this case. 1 The

State alleged that, on May 3, 2017, defendant failed to report for an appointment with his probation

officer; that he had tested positive for marijuana and failed to show proof that he had started

treatment as ordered; and that, on February 17, 2017, and April 19, 2017, he tested positive for

tetrahydrocannabinol (THC). On August 16, 2017, the State again petitioned to revoke

defendant’s probation, alleging that he had failed to undertake required evaluations and to

participate in any recommended treatment based upon the evaluations. The State also alleged that,

on June 7 and July 17, 2017, defendant tested positive for THC. On September 11, 2017, defendant

1 No petition to revoke defendant’s probation in case No. 16-CF-1347 is at issue on this appeal.

-2- 2022 IL App (2d) 210441-U

admitted the violations, and his probation was continued. He was ordered to obtain a drug

evaluation by October 15, 2017.

¶6 On November 13, 2017, the State again petitioned to revoke defendant’s probation,

alleging that he failed to report for an office appointment and drug test on October 23, 2017, failed

to undertake evaluations promptly, and tested positive for THC on October 16, 2017. On

November 1, 2018, defendant stipulated to the allegations and was ordered to complete a drug and

alcohol evaluation, with all terms of the original probation remaining in effect.

¶7 On July 2, 2019, the State petitioned to revoke defendant’s probation. The petition alleged

first that defendant had violated his probation terms in that, on June 20, 2019, Elgin police arrested

him for resisting or obstructing a peace officer and obstructing identification (case No. 19-CM-

1575). It alleged second that defendant had failed to report for appointments with the probation

department on November 1, 2018, and May 31, 2019.

¶8 On July 25, 2019, the State filed another revocation petition, alleging first that, on July 21,

2019, defendant was arrested for unlawful use or possession of weapons or ammunition by a

convicted felon and two counts of aggravated unlawful use of a weapon (case No. 19-CF-1441).

¶9 On March 31, 2021, the State filed an amended petition alleging that defendant

(1) committed obstructing identification (case No. 18-CM-2390), (2) committed resisting or

obstructing a peace officer (case No. 19-CM-1575), (3) committed unlawful possession of a

weapon by a felon (case No. 19-CF-1441), (4) failed to meet with his probation officer on May

31, 2021, and (5) failed to undergo a drug and alcohol evaluation.

¶ 10 On April 29, 2021, defendant stipulated to having committed obstructing identification and

resisting or obstructing a peace officer. The trial court continued the cause for the preparation of

a presentencing investigation report (PSIR) and a resentencing hearing.

-3- 2022 IL App (2d) 210441-U

¶ 11 The PSIR, dated June 16, 2021, stated in part as follows. Defendant was born August 8,

1997. He had no juvenile record. Before being placed on probation in 2016, he had no adult

criminal record. Since then, his pending cases included case Nos. 18-CM-2390, 19-CM-1575, and

19-CF-1441, and a 2020 Cook County charge of robbery, allegedly committed on October 24,

2017.

¶ 12 Defendant reported that he dropped out of high school in his senior year because, due to

his poor grades, the school did not allow him to play basketball. He had not acquired his GED.

His longest period of employment was three months, at Walmart, in the winter of 2016-17. He

last worked in June 2020, for a temporary agency. Since being sentenced to probation, he had

been homeless at times. He was residing with his ex-fiancée rent-free.

¶ 13 Defendant reported that he had had no relationship with his father since his early youth.

He no longer had contact with the man who had fathered his two youngest siblings. In 2019,

defendant’s grandparents, uncle, baby brother, and daughter all died.

¶ 14 Defendant told the probation officer that this was his first felony case and that he “ ‘messed

up’ ” because he was “ ‘young and dumb’ ” and was around the “ ‘the wrong people.’ ” He told

the probation officer that he did not feel that “the violations [were] fair in these cases” and he

“indicated a lack in personal control over what he can do to make his life better for himself.”

¶ 15 The PSIR stated that assessments placed defendant at a high risk to reoffend, given

numerous factors, especially his education, employment, and family situation. Defendant’s

interview answers showed “some criminal attitudes and behavioral patterns,” as when he said that

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People v. Hamilton, 2022 IL App (2d) 210441-U (Ill. Ct. App. 2022).

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