People v. Hess

2020 IL App (4th) 180079-U

• Court: Appellate Court of Illinois
• Decided: April 29, 2020
• Docket: 4-18-0079
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 180079-U FILED This order was filed under Supreme Court Rule 23 and may not be cited April 29, 2020 as precedent by any party except in NO. 4-18-0079 Carla Bender the limited circumstances allowed 4th District Appellate under 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. ) Macoupin County THOMAS HESS JR., ) No. 16CF283 Defendant-Appellant. ) ) Honorable ) Joshua A. Meyer, ) Judge Presiding.

PRESIDING JUSTICE STEIGMANN delivered the judgment of the court. Justices Knecht and Holder White concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed defendant’s conviction and remanded for the limited purpose of granting defendant an opportunity to file a motion to reconsider his sentence.

¶2 In December 2016, defendant, Thomas Hess Jr., was charged with predatory

criminal sexual assault, a Class X felony, alleging he committed an act of sexual penetration with

K.H. when defendant was 17 years of age or older and K.H. was under 13 years of age. 720 ILCS

5/11-1.40(a)(1) (West 2016). A jury found defendant guilty in November 2017. In January 2018,

the trial court sentenced defendant to 35 years in prison.

¶3 Defendant appeals, claiming only that he received ineffective assistance of counsel

because his trial counsel failed to file a motion to reconsider his 35-year sentence.

¶4 We affirm but remand for the limited purpose of granting defendant an opportunity

to file a motion to reconsider his sentence. ¶5 I. BACKGROUND

¶6 In December 2016, the State charged defendant with predatory criminal sexual

assault, a Class X felony, for allegedly having “penetrated the rectum of K.H. with his penis” at a

time when defendant was 17 years of age or older and K.H. was under 13 years of age. Id.

¶7 In November 2017, the trial court conducted defendant’s jury trial. Because what

occurred at trial is not at issue in this appeal, we need not discuss the evidence. The jury found

defendant guilty of predatory criminal sexual assault.

¶8 In January 2018, the trial court conducted defendant’s sentencing hearing. The State

presented victim impact statements from defendant’s sister, Nadine, and defendant’s brother,

Robert. The State argued that three statutory aggravating factors applied: (1) defendant’s conduct

caused serious emotional harm to K.H., (2) defendant’s sentence is necessary to deter others from

committing this same crime, and (3) defendant committed the offense while in a position of trust.

730 ILCS 5/5-5-3.2(a)(1), (7), (14) (West 2016). The State recommended a sentence of 35 years

in prison.

¶9 Defendant called his aunt, Rosemary Davis, who said that she loved defendant and

planned to remain a part of his life. Davis testified that when defendant is released from prison,

she plans to help him start a new life and will “be there” for him. Defendant argued, “[W]e are not

trying to minimize [the offense], we understand the gravity. However, the Legislature did set the

sentencing guidelines at [6] to [60] years[,] and we don’t believe that the State has shown the

aggravating factors necessary to warrant” 35 years in prison. Defendant further argued that he had

no prior criminal convictions and his criminal conduct was the result of circumstances unlikely to

recur. Defendant then recommended a sentence between six and eight years in prison. Defendant

also made a statement in allocution.

-2- ¶ 10 Later in January 2018, the trial court sentenced defendant to 35 years in prison and

filed a written order in which it explained how it arrived at that sentence. In its order, the court

stated that it considered (1) the evidence presented at trial; (2) the presentence report; (3) the

financial impact of incarceration; (4) the evidence offered in aggravation and mitigation; (5) the

defendant’s credibility, demeanor, moral character, mentality, social environment, age, and the

nature and circumstances of the offense; (6) arguments as to sentencing alternatives;

(7) defendant’s statement of allocution; and (8) the victim impact statements. The court also noted

it considered “[a]ll relevant factors even if not specifically mentioned in this decision.”

¶ 11 The trial court agreed with the State that the three factors in aggravation that applied

were the ones related to harm, deterrence, and trust. The court concluded that (1) the act itself

caused physical harm, and the victim experiences ongoing emotional and psychological harm;

(2) “[d]eterring others from sexually assaulting children is necessary;” and (3) defendant was in a

position of trust because he was the victim’s father. The court agreed with defendant that his lack

of prior criminal activity was a factor in mitigation. The court agreed somewhat with defendant

that the conduct was unlikely to recur and therefore “considered this factor but gave little weight

to it in determining its sentence.”

¶ 12 The trial court sentenced defendant to 35 years in prison. Following that sentence,

the court admonished defendant regarding his appellate rights, including that if defendant wished

to challenge his sentence, he must file a written motion asking the court to reconsider the sentence

within 30 days. Defendant did not file a motion to reconsider sentence.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 Defendant appeals, claiming only that he received ineffective assistance of counsel

-3- because his trial counsel failed to file a motion to reconsider his 35-year sentence.

¶ 16 We affirm but remand for the limited purpose of granting defendant an opportunity

to file a motion to reconsider sentence.

¶ 17 A. The Law

¶ 18 Every criminal defendant has a constitutional right to the effective assistance of

counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. This right applies to all critical

stages of criminal proceedings, which includes every instance “where substantial rights of a

criminal accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134 (1967). Because filing a

motion to reconsider sentence is a prerequisite to raising sentencing issues on appeal, it is

considered a critical stage of the criminal proceedings at which a defendant is entitled to effective

assistance of counsel. People v. Williams, 358 Ill. App. 3d 1098, 1105, 833 N.E.2d 10, 16 (2005);

People v. Brasseaux, 254 Ill. App. 3d 283, 288, 660 N.E.2d 1321, 1324-25 (1996).

¶ 19 To establish a claim of ineffective assistance of counsel, a defendant must show

that (1) counsel’s representation fell below an objective standard of reasonableness and

(2) counsel’s deficient performance prejudiced defendant. Strickland v. Washington, 466 U.S. 668,

687 (1984). Counsel’s representation is unreasonable if “no reasonably effective defense attorney,

facing similar circumstances, would pursue such a strategy.” People v. King, 316 Ill. App. 3d 901,

916, 738 N.E.2d 556, 568 (2000). Counsel’s representation prejudices a defendant if there is a

reasonable probability that, absent counsel’s error, the outcome of the proceedings would have

been different. Strickland, 466 U.S. at 694.

¶ 20 B. This Case

¶ 21 Here, counsel’s failure to file a motion to reconsider defendant’s sentence was

ineffective assistance of counsel. Counsel recommended a sentence of 6 to 8 years in prison, and

-4- when the court imposed a sentence of 35 years in prison, counsel did not file a motion to reconsider

the sentence. In response to the State’s recommendation that defendant serve 35 years in prison,

defense counsel argued, “[W]e don’t believe that the State has shown the aggravating factors

necessary to warrant” a 35-year sentence.

¶ 22 We conclude that defense counsel acted deficiently for two reasons. First, counsel

deprived defendant of the ability to challenge his sentence on appeal. As defendant notes, because

a sentence can only be decreased, not increased, through this process, defense counsel had every

reason to file the motion and no reason not to. Second, defense counsel opined that a sentence of

35 years would be inappropriate and unjustified based upon what the State had presented. In one

moment, counsel argued that 35 years was unjustified. In the next moment, counsel acquiesced to

that very sentence by failing to both (1) move for the trial court to reconsider the sentence and

(2) preserve the issue for review by the appellate court. These contradictory actions are not

reasonable.

¶ 23 Defense counsel’s representation prejudiced defendant by failing to preserve any

sentencing issues for appeal. As previously noted, a defendant is prejudiced if absent the error,

there is a reasonable probability that the result would have been different. Id. However, under the

peculiar circumstances of this case, we conclude that the fairest and most appropriate action for

this court is to ensure that defendant is not deprived of his ability to challenge his sentence on

appeal.

¶ 24 Although we express no opinion as to the ultimate merits of a future excessive

sentence claim, we conclude that, under these circumstances, defendant was prejudiced by his

counsel’s forfeiting defendant’s ability to raise the issue of an excessive sentence on appeal.

¶ 25 III. CONCLUSION

-5- ¶ 26 For the reasons stated, we affirm but remand for the limited purpose of (1) granting

defendant an opportunity to file a motion to reconsider sentence and (2) authorizing the trial court

to conduct a hearing on that motion.

¶ 27 Affirmed and remanded.

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