People v. Harris

2021 IL App (1st) 180959-U

Opinion

2021 IL App (1st) 180959-U No. 1-18-0959 Order filed January 8, 2021 Fifth 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 4893 ) JUSTIN HARRIS, ) Honorable ) Geary W. Kull, Defendant-Appellant. ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: Defendant’s sentences for kidnapping and aggravated kidnapping are vacated and the matter is remanded for resentencing where the trial court considered an improper factor in aggravation.

¶2 Following a bench trial, defendant Justin Harris was convicted of one count of kidnapping

(720 ILCS 5/10-1 (West 2016)) and three counts of aggravated kidnapping (720 ILCS 5/10-2(a)(4)

(West Supp. 2015), and sentenced to concurrent prison terms of 4 years for kidnapping and 11

years for each count of aggravated kidnapping. He appeals, arguing that the trial court considered No. 1-18-0959

an improper factor in aggravation at sentencing, specifically his silence at allocution, and that his

sentence was excessive. We vacate defendant’s sentences, remand for resentencing, and otherwise

affirm. 1

¶3 Defendant and co-offenders Devonte Gosha and Marliss Pelmer were charged by

indictment with multiple offenses arising from an incident on March 7, 2016. 2 At defendant’s and

Gosha’s simultaneous, severed bench trials, the State proceeded against each on counts of home

invasion, aggravated kidnapping, armed robbery, aggravated battery, aggravated unlawful

restraint, and aggravated unlawful use of a weapon. Regarding the aggravated kidnapping charges,

the State alleged that the offenders, while armed with firearms and wearing masks, kidnapped

Mariarosaria Provinzano (counts IV and IX), Sara Minahi (counts V and X), and Mariela

Maldonado (counts VI and XI), and also committed aggravated kidnapping while armed with a

firearm against Nelson Arias (count VIII).

¶4 Provinzano testified that on March 7, 2016, at approximately 9:30 p.m., she and Minahi

went to Arias’s apartment building in Oak Park, Illinois, to retrieve a computer charger Provinzano

had left in the apartment. On a staircase in the building, Provinzano and Minahi encountered three

African-American men, one of whom asked Provinzano about a “studio.”

¶5 Provinzano and Minahi entered Arias’s rooftop apartment, which was separated from the

staircase by an outdoor walkway. Provinzano greeted Arias, then retrieved her charger. As she

exited the apartment, three African-American men approached, each holding firearms and wearing

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order stating with specificity why no substantial question is presented. 2 Marliss Pelmer pleaded guilty to armed robbery with a bludgeon and is not a party to this appeal.

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masks. Provinzano believed these were the men she saw on the stairwell because they wore the

same clothing. The men instructed her to re-enter the apartment.

¶6 While inside, the men aimed firearms at Provinzano and Minahi and forced them into a

music studio. The men left the studio, and Provinzano heard “commotion” from another room,

including “glass breaking, stuff hitting against the wall,” and “people grunting.” Later, the men

also placed Amarzaya Makhbal, Arias’s assistant, in the studio with Provinzano and Minahi.

Makhbal was bleeding from his head and crying. One of the men asked Makhbal for money and

threatened him.

¶7 The men took Provinzano’s phone, computer charger, and keys, and a “silver bag of

money” from the studio. They moved Provinzano and Minahi to a bedroom, where Arias and his

friends Michael Silva and Maldonado were. At some point, Provinzano heard “a bunch of footsteps

running away,” followed by the police entering the apartment.

¶8 The police brought Provinzano outside and showed her two African-American men sitting

handcuffed on the ground, whom she identified as two of the men involved in the incident. Later,

at the police station, Provinzano identified photographs of the three men, which she identified in

court as People’s Exhibit Nos. 8, 9, and 10. She identified Gosha in court as the man she identified

in People’s Exhibit No. 9. Though initially Provinzano did not recognize anyone in court as the

man she identified in People’s Exhibit No. 8, she later identified defendant as that man. On redirect

examination, Provinzano also identified defendant as the man who took her phone.

¶9 Minahi testified that while she and Provinzano were inside Arias’s apartment, three

African-American men wearing ski masks entered and aimed firearms at them. One of the men

took her cell phone. The men then forced Minahi and Provinzano into a bedroom with Maldonado,

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Silva, Arias, and Makhbal. The three men left, and shortly thereafter Minahi heard footsteps and

saw the police enter the apartment. Minahi did not identify anyone to the police.

¶ 10 Maldonado testified that on March 7, 2016, she was in Arias’s living room watching

television when she heard a “ruckus.” She looked up and saw Arias and Makhbal being led into

the room by “two men with black masks *** pointing a gun at their heads.” One of the men pointed

a firearm at Maldonado and ordered her to the floor. The men moved Maldonado to a bedroom

where Arias, Silva, and Makhbal were already present, and later brought two other girls to the

bedroom. Arias and Makhbal were bleeding. Two of the men stayed in the room while the third

searched Arias’s apartment. At some point, Maldonado heard footsteps and police officers arrived.

The three men ran from the apartment. The officers detained two of the men on the roof and

brought Maldonado outside to identify them.

¶ 11 Arias testified that three armed African-American men in masks entered the apartment

while Arias was in the living room with Maldonado and Makhbal. The men ordered everyone to

the ground, and one of them “pistol-whipped” Arias in the back of his head multiple times. The

men took jewelry, personal items, and $17,000 in cash from the apartment. One of the men took a

necklace and ring from Arias’s person, as well as his credit cards. The men then forced everyone

into a bedroom at gunpoint and “ransack[ed]” the apartment. Shortly thereafter, Arias heard

“banging noises,” and the police entered. The police took Arias to view two men, whom he

identified from their clothing as the men who entered his apartment. He identified Gosha and

defendant in court as the two men in police custody that night. Arias did not recognize defendant’s

face from the incident, but recognized him generally because Arias “used to *** work with ***

one of [defendant’s] friends.”

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¶ 12 The State entered stipulations regarding police testimony. In relevant part, Oak Park police

sergeant William Ballard would testify that on March 7, 2016, he responded to the incident and

detained defendant on the roof of the building. Arias and Provinzano identified defendant on the

scene. At the police station, Ballard recovered a necklace and earrings belonging to Arias from

defendant.

¶ 13 Second, Oak Park police officer Matthew Muhr would testify that he observed Gosha run

on the rooftop and throw something off the roof. Muhr detained Gosha, and Arias and Provinzano

identified Gosha on the scene.

¶ 14 Third, Oak Park police officer Jeffrey Poshek would testify that he saw Pelmer run out of

the front door of the building. Poshek detained Pelmer, who had a bag containing $14,448 in cash

and a white Gucci bag belonging to Arias. Arias and Provinzano identified Pelmer on the scene.

¶ 15 Fourth, Forest Park police officer Daniel Miller would testify that he recovered a firearm

from a bush near the apartment building, and evidence technician Ian Miller would testify that he

recovered another firearm, a broken Taurus semiautomatic pistol, from the scene.

¶ 16 Oak Park police detective Angelo Episcopo testified that he showed Provinzano and

Minahi pictures of firearms. Minahi identified the broken Taurus pistol. The State entered

stipulations that neither defendant nor Gosha had a Firearm Owners Identification Card or

concealed carry license.

¶ 17 The State also introduced evidence that DNA recovered from Arias, Silva, and Makhbal

matched blood found on both the Taurus firearm and gloves recovered from the scene, and that

fingerprints recovered from Minahi’s phone matched defendant’s fingerprints.

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¶ 18 Defendant entered a stipulation that Oak Park police officer Christine Simkus would testify

that following the incident, Provinzano did not describe to the police a man dressed in all black,

did not state that she left Arias’s apartment and saw three men approaching, and did not say that

two of the men left the bedroom and “then came back, found the money, and left again.”

¶ 19 Following arguments, the court found defendant and Gosha not guilty of home invasion,

aggravated battery, aggravated unlawful restraint, and aggravated unlawful use of a weapon. On

the charges of aggravated kidnapping while armed with a firearm, the court entered findings of

guilt on the lesser-included offense of kidnapping against Provinzano, Minahi, Maldonado, and

Arias (counts IV, V, VI, VIII). The court also found defendant and Gosha guilty of aggravated

kidnapping while wearing a mask against Provinzano, Minahi, and Maldonado (counts IX, X, and

XI), and stated that the findings of guilt on counts IV through VI merged therein. The court further

found defendant and Gosha guilty of three counts of armed robbery.

¶ 20 Defendant and Gosha each moved for a new trial. In response, the court vacated the guilty

findings for armed robbery.

¶ 21 Defendant’s presentence investigation (PSI) report showed that he was 18 years old at the

time of the offense. He had a juvenile adjudication for attempt robbery. Defendant reported that

he was raised by both parents, had good relationships with his eight siblings, and had one child.

He denied that his family members had a history of substance abuse. He dropped out of high

school, but at the time of the report, he attended an alternative high school, where he was a senior

and earned good grades.

¶ 22 Prior to sentencing, defendant submitted a report from mitigation specialist Linda Sobotka.

In the report, Sobotka wrote that defendant’s parents had inconsistent work histories and that

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alcohol abuse was a leading factor in their divorce. Defendant’s father then left Chicago, and

defendant believed his father abandoned him. Defendant’s brother described him as a strong

person who wanted to turn his life around, and his mother described him as a “good respectful

kid.”

¶ 23 The report contained a letter from Jewel Jackson, defendant’s aunt, who stated that she

helped care for defendant and his siblings because his mother was an alcoholic. When Jackson and

defendant’s grandmother moved away from Chicago, defendant had no guidance and felt “alone,

lost and confused.” She believed defendant was a “bright young man with a bright future.”

¶ 24 Sobotka listed defendant’s mitigating factors as his age, family upbringing, his mother’s

alcohol use, his father’s abandonment, the loss of loved ones, his intelligence, his desire for a

second chance, and his lack of gang membership or criminal history.

¶ 25 At the sentencing hearing for defendant and Gosha, the State introduced a victim impact

statement from Arias, who relayed that due to the “horrific” incident, he lost his home, money,

and job. The State also emphasized that defendant had a juvenile adjudication for which he was

sentenced to probation, and subsequently violated that probation.

¶ 26 In mitigation, defense counsel referenced Sobotka’s report. Counsel said defendant

regretted what happened and asked for the minimum sentence. Defendant did not speak in

allocution.

¶ 27 The court sentenced defendant to three concurrent 11-year terms for aggravated kidnapping

against Provinzano, Minahi, and Maldonado (counts IX-XI), and a concurrent four-year term for

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kidnapping against Arias (count VIII). 3 The court stated that it considered Sobotka’s report,

defendant’s record, and “some of the things that people have said about” defendant. The court

acknowledged that defendant had a “difficult road” for a “child” or “young adult,” but believed

that did not “excuse” his conduct.

¶ 28 The court then stated that Pelmer pled guilty and “accepted responsibility,” whereas in

defendant’s case, “even in given the opportunity to speak, there was no acceptance or

responsibility. There’s no remorse. There’s no indication that your conduct will not continue along

these lines.” The court continued, “But I’m not going to punish you overwhelmingly for that.”

Shortly thereafter, while sentencing Gosha during the same proceeding, the court added, “like

[defendant], I got nothing in terms of remorse from you.”

¶ 29 The court denied defendant’s motion to reconsider sentence.

¶ 30 On appeal, defendant first argues that the trial court erred by considering an improper factor

in aggravation at sentencing, specifically defendant’s silence at allocution. Defendant

acknowledges that he did not preserve this error through a timely objection and inclusion in his

postsentencing motion, but contends we may reach the issue through plain error review.

¶ 31 A reviewing court may consider an unpreserved error on plain error review where the trial

court committed a clear or obvious error and (1) “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) “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

3 Defendant’s mittimus lists count VIII as aggravated kidnapping rather than kidnapping. Under Illinois Supreme Court Rule 472 (eff. May 17, 2019), defendant may file a motion in the circuit court to correct the mittimus accordingly.

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v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Defendant claims both prongs of plain error review

apply. We must first determine whether a clear or obvious error occurred. People v. Sebby, 2017

IL 119445, ¶ 49.

¶ 32 A sentencing court’s decision is entitled to great deference. People v. Snyder, 2011 IL

111382, ¶ 36. A court may consider a defendant’s lack of remorse at sentencing. People v. Mulero,

176 Ill. 2d 444, 462 (1997). “When inquiring into a defendant’s remorse [at sentencing] *** the

State may not violate a defendant’s constitutional rights,” including the right to remain silent. Id.

at 462-63. When considering the propriety of a sentence, the reviewing court must consider the

entirety of the proceedings, not just one specific statement from the court. People v. Ward, 113 Ill.

2d 516, 526-27 (1986). The reviewing court will presume that a sentencing court considered only

appropriate factors absent an affirmative showing from the record to the contrary. People v.

Quintana, 332 Ill. App. 3d 96, 109 (2002). If the trial court considered an improper aggravating

factor at sentencing, remand is not automatic, and “where the record indicates that the trial court’s

reference to the improperly considered aggravating factor was so insignificant that it did not lead

to a greater sentence, a remand for resentencing is not required.” People v. Shanklin, 2014 IL App

(1st) 120084, ¶ 91.

¶ 33 Although, as the State notes, the imposition of sentence is generally a matter of judicial

discretion, whether a sentencing court considered an improper factor at sentencing is a question of

law that we review de novo. People v. Bowen, 2015 IL App (1st) 132046, ¶ 49. The defendant

bears the burden of establishing that the sentence was based on an improper factor. Id.

¶ 34 Here, the record shows that during the sentencing hearing, the court acknowledged

defendant’s mitigating factors, including his youth and family history. The court juxtaposed those

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factors with what it interpreted as defendant’s lack of remorse. The court then contrasted

defendant’s lack of remorse with that of Pelmer, noting that Pelmer accepted responsibility by

pleading guilty. The court continued, in relevant part, that “even in given the opportunity to speak,

there was no acceptance or responsibility [by defendant.] There’s no remorse. There’s no

indication that your conduct will not continue along these lines.” The court continued, “But I’m

not going to punish you overwhelmingly for that.”

¶ 35 We find that the trial court committed a clear error by using defendant’s exercise of his

fifth amendment right to remain silent against him as evidence that he lacked remorse. The law is

clear that the right to remain silent applies at sentencing. See People v. Maggio, 2017 IL App (4th)

150287, ¶ 48 (citing People v. Ashford, 121 Ill. 2d 55, 80 (1988)). The court’s comment that “even

in given the opportunity to speak,” defendant chose not to accept responsibility, shows the court

believed that defendant’s choice not to speak in allocution evidenced a lack of remorse. The court

also expressed concern whether defendant would continue to commit crimes in light of this lack

of remorse. The plain reading of these comments is that the trial court improperly considered

defendant’s silence in allocution as a factor in aggravation. See People v. Matute, 2020 IL App

(2d) 170786, ¶¶ 56, 62-63 (finding error where trial court noted the defendant did not express

remorse and that his failure to speak in allocution was “disturbing”); see also Maggio, 2017 IL

App (4th) 150287, ¶ 49 (the sentencing court may not invoke a defendant’s right to remain silent

during the presentencing investigation in aggravation at sentencing); People v. Pace, 2015 IL App

(1st) 110415, ¶ 101 (vacating the defendant’s sentence where the record affirmatively showed the

defendant “was punished for choosing to remain silent during the sentencing hearing.”) vacated

on other grounds, No. 120097 (Ill. Nov. 23, 2016) (supervisory order).

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¶ 36 The State argues that the court’s consideration of defendant’s silence was so insignificant

in the sentencing calculus that remand is unnecessary. We disagree. The court’s statement that it

would not hold defendant’s silence against him “overwhelmingly” makes clear that it weighed the

factor to some extent. Where, as here, the degree to which the court weighed an improper

aggravating factor is not obvious from the record, remand is appropriate. See People v. Voit, 355

Ill. App. 3d 1015, 1028 (2004).

¶ 37 The State further cites the principle that a sentencing court should be presumed to have

only considered appropriate factors in support of the court’s sentence here. This presumption of

propriety, however, does not apply when evidence from the record directly rebuts it. See Quintana,

332 Ill. App. 3d at 109. Here, the record positively rebuts the presumption that the sentencing court

only considered appropriate factors because it is clear the court considered defendant’s silence in

allocution in aggravation.

¶ 38 Having found that the court committed clear error, we move to whether this amounted to

plain error. We find that it does. The second prong of plain error review is designed to address

structural error or instances where a defendant suffered a “near-total deprivation” of a

constitutional right. See People v. Garner, 2016 IL App (1st) 141583, ¶ 32 (citing People v. Clark,

2016 IL 118845, ¶ 47). A defendant’s right to remain silent is a fundamental right. See Mulero,

176 Ill. 2d at 466 (improper comment on a defendant’s exercise of his right to remain silent is

“plain error affecting defendant’s substantial rights.”). Here, the court used defendant’s silence in

allocution against him at sentencing, depriving defendant of this right. Thus, the court’s error rises

to the level of second-prong plain error. See Matute, 2020 IL App (2d) 170786, ¶¶ 62-63 (the court

found second prong plain error because the trial court “impinged upon [the defendant’s]

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fundamental right to liberty” by finding that his silence at allocution demonstrated a lack of

remorse).

¶ 39 Having found plain error under the second prong, we do not address whether the trial

court’s error would constitute plain error under the first prong, nor do we address defendant’s

claim that his sentence was excessive because the court failed to appropriately weigh his mitigating

factors.

¶ 40 For the reasons stated above, defendant’s sentences are vacated and the matter is remanded

for resentencing. We affirm the trial court’s judgment in all other respects.

¶ 41 Affirmed in part, vacated in part, and remanded for resentencing.

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