People v. Lloyd

2020 IL App (4th) 170588-U

• Court: Appellate Court of Illinois
• Decided: February 14, 2020
• Docket: 4-17-0588
• Status: Unpublished

Opinion

2020 IL App (4th) 170588-U NOTICE FILED This order was filed under Supreme NO. 4-17-0588 February 14, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County MARC A. LLOYD, ) No. 15CF1036 Defendant-Appellant. ) ) Honorable ) Heidi N. Ladd, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Justices Knecht and DeArmond concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed where defendant forfeited any claim of error in his sentencing and defendant failed to show, for purposes of plain-error review, that any error occurred.

¶2 In October 2015, defendant, Marc A. Lloyd, pleaded guilty to failure to register as

a sex offender (730 ILCS 150/3(b) (West 2014)), in exchange for a sentence of 30 months’

probation. In March 2016, the State filed its first petition to revoke defendant’s probation for

criminal trespass. In April 2017 and May 2017, the State filed a second petition and a

supplemental petition to revoke probation, respectively. At a June 2017 hearing, defendant

stipulated to the supplemental petition to revoke his probation. In August 2017, the court

resentenced defendant to an extended term of seven years in prison. ¶3 Defendant appeals, arguing the trial court improperly sentenced him for conduct

while on probation rather than for the underlying offense. We affirm.

¶4 I. BACKGROUND

¶5 In July 2015, the State charged defendant by information with one count of failure

to register as a sex offender (730 ILCS 150/3(b) (West 2014)). In October 2015, defendant

pleaded guilty in exchange for a sentence of 30 months’ probation.

¶6 In March 2016, the State filed a petition to revoke probation alleging defendant

committed the offense of criminal trespass to real property (720 ILCS 5/21-3(a)(3) (West 2014)).

Defendant pleaded guilty to criminal trespass in exchange for a sentence of 28 days in jail. As

part of the plea agreement, the State agreed to dismiss the petition to revoke probation.

¶7 In April 2017, the State filed a second petition to revoke probation, alleging

defendant committed the offenses of criminal damage to property (720 ILCS 5/21-1(a)(1) (West

2014)) and battery (720 ILCS 5/12-3(a)(2) (West 2014)). In May 2017, the State filed a

supplemental petition to revoke probation, alleging defendant committed the offense of unlawful

failure to register as a sex offender (730 ILCS 150/3 (West 2014)). In June 2017, defendant

stipulated to the allegations in the supplemental petition, and the trial court revoked defendant’s

probation. As a part of the agreement, the State agreed to dismiss the second petition to revoke

probation.

¶8 In August 2017, the trial court conducted the resentencing hearing. After hearing

the parties’ arguments, the court ruled as follows:

“The Court has considered the presentence report of Court Services, the

documents attached, all relevant statutory factors, including, but not limited to,

the nature and circumstances of the offense, the evidence and applicable factors in

-2- aggravation and mitigation, the character, history and rehabilitative potential of

the defendant, his statement in allocution here and the arguments and

recommendations of counsel.

[Defendant] is 37 years old. He presents an extensive history going back

13 years over three states with nine felony convictions, two misdemeanor

convictions and a contempt finding. He has been sentenced to some form of

imprisonment multiple times, approximately eight times, seven, eight times, and

he’s received sentences from one year to 45 months as well as some county jail

time. He’s had two terms of probation, including the most recent one that was

unsuccessful for the reasons stated with the clarifications made here from the

additional evidence.

He has unfortunately not used that time to change his ways and it has not

gotten his attention or had the desired effect on rehabilitative potential as he’s

gone through these different cases. He commenced in 2004 with two separate sex

offenses from Nevada. He failed to the [sic] register as a sex offender now three

times, in March of 2007, October 2008 and October 2015 as well as the one that

we know he failed to register while he was on probation. And so he is well aware

of his responsibility to do so and the consequences of not doing so.

He has other serious offenses as well including from Indiana residential

entry, criminal recklessness that resulted in serious bodily injury to another

individual as well as the other offenses documented in the presentence report, and

he does have a history of housing instability. I am certainly aware and have

considered the difficulties that are presented with homelessness and the fact that

-3- he has no significant ties to Illinois and is not able to have his probation

transferred to Indiana. While certainly that’s not a source of aggravation and it

can well be and should be viewed as a factor in mitigation when Court weighs in

the hardships, in this case, the defendant’s peripatetic and unstable lifestyle is a

direct product of the choices he has made despite the intervention that’s been

offered by Mr. Jessup[, defendant’s probation officer,] and Ms. Difanis, his

counselor.

He continues to involve himself in unstable and inappropriate

relationships that disintegrate into at times domestic violence or obsessive and

unwelcome focus on the other participant from past relationships, and despite Mr.

Jessup’s efforts to redirect him, he’s continued then to derail his ability to achieve

stable housing and job security because he continues to drift rather by preference

to these relationships.

He does not follow them on the recommendations, advice or referrals that

have been made for him repeatedly from the moment he started his probationary

journey, and he’s had the benefit of two excellent advocates, Mr. Jessup and Ms.

Difanis.

I have considered the recent diagnosis of mental health issues.

Unfortunately, that’s subject to the same pattern of disregard. [Defendant] has not

followed through with treatment recommendations or consistently taken the

psychotropic medication that would keep him stable, and I have considered that as

a factor in both—in mitigation, but I would also note there’s an element of

gamesmanship in his evasiveness with Mr. Jessup, such as where he was residing.

-4- He has ignored efforts to assist him with obtaining employment, housing,

education and not able to follow through with that, and, and registration as a sex

offender, and it’s almost exhausting to read what Mr. Jessup has had to do in

tracking him, trying to get him refocused [sic] and back on track. He did have

referrals as well for anger management counseling which became a very evident

need as he continued to have these disintegrating relationships that basically fell

apart into violent interactions with several of the women in his life. He had—the

same counselor that has been seeing him through from Rosecrance, Ms. Difanis,

was actually conducting those courses, and he did not follow through with those,

and he was given a lot of opportunities to do so.

And most critical was the sex offender treatment. He did not participate

meaningfully in it. He did attend at times. He did share as a member of the group

but was unwilling to then take the further step of accepting feedback or

responsibility and ultimately was terminated due to lack of attendance, so he has

yet to complete that program.

So the Court is confronted with a twice convicted sex offender who is not

registering, not getting help, continuing to immerse himself in unhealthy

relationships, not following through on the medication recommended for him for

stability, drifting through the community, unwilling to accept or complete any

counseling, including anger management and sex offender and continuing to

evade the responsibilities he has. That creates a time bomb for the community.

At some point, the Court does have to prioritize the safety of the

community, which is a compelling factor, and measure the opportunities

-5- squandered in the fact that these were no longer voluntary options, but this was a

Court-ordered requirement that he was not following through on. So for 19

months, he was given every opportunity to stay in the community and work on his

issues, and he rejected them because it was inconvenient for him and conflicting

with the lifestyle he has adopted for himself.

The only way that Mr. Jessup could keep track of him, frankly, was

chasing him down and babysitting him and trying to keep up with the GPS

monitor at some point, and it’s a total misuse of Mr. Jessup’s time as well when

everything has been tried over and over and over and it’s simply not successful.

Deterrence becomes an issue for those who continue to disregard Court orders and

the law and for those who do try to follow through with the efforts to complete

probation. And what’s the message to them if there are no repercussions?

It’s very clear that, again, Mr. Jessup went to heroic efforts to try and

redirect [defendant] repeatedly over the last 19 months and was unsuccessful

because [defendant] didn’t want to do it. I cannot find any basis for even a remote

likelihood of success of compliance with a community-based sentence again.

There’s nothing for the Court to reasonably conclude that that would have any

effect, and it would simply be more of Mr. Jessup trying to track down

[defendant] and convince him he needs to do what he needs do this time. And

given [defendant]’s unwillingness to do so when he’s free, and the record he’s

demonstrated about not following through, it’s apparent it would not be

successful.

-6- Despite his protests here as he’s facing a sentence, there’s nothing for this

Court to find it’s anything other than an attempt not to face the penalties that are

in place for the choices he’s made. Nothing he’s done over the last few decades

instills any confidence that it would be any different this time.

So what the Court has here is an untreated and and [sic] erratic sex

offender with a history of not registering and of not following Court orders or the

law. That is absolutely a time bomb I’m not willing to unleash on the community

again. The Court has an obligation to protect the community.

Having regard to the nature and circumstances of the offense and to the

history, character and rehabilitative potential of the defendant, I find that at this

point we’ve exhausted every resource to keep him in the community and he’s

rejected that by his unwillingness to participate, imprisonment is absolutely

necessary for the protection of the public, and a community-based sentence would

deprecate the seriousness of defendant’s conduct and be inconsistent with the

ends of justice.

I don’t believe that the full amount is required here under all of the

circumstances I’ve considered and all of the factors in aggravation and mitigation,

I believe an extended term sentence of seven years incarceration in the Illinois

Department of Corrections is the appropriate sentence followed by two years of

mandatory supervised release.”

¶9 This appeal followed.

¶ 10 II. ANALYSIS

-7- ¶ 11 On appeal, defendant argues the trial court improperly sentenced him for conduct

while on probation rather than resentencing him for the underlying offense of failure to register

as a sex offender. Defendant admits he failed to preserve this issue where he made no

contemporaneous objection and neglected to file a motion to reconsider the sentence.

Accordingly, we conclude defendant has forfeited this claim on appeal. However, defendant asks

this court to review his contentions under the plain-error doctrine (Ill. S. Ct. R. 615(a) (eff. Jan.1,

1967)).

¶ 12 To obtain relief under the plain-error doctrine, the defendant must first show a

clear or obvious error occurred. People v. Hillier, 237 Ill. 2d 539, 545, 931 N.E.2d 1184, 1187

(2010). In the sentencing context, a defendant must then demonstrate that “(1) the evidence at the

sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the

defendant a fair sentencing hearing.” Hillier, 237 Ill. 2d at 545, 931 N.E.2d at 1187. Under both

prongs, the defendant bears the burden of persuasion. Hillier, 237 Ill. 2d at 545, 931 N.E.2d at

1187. “If the defendant fails to meet his burden, the procedural default will be honored.” Hillier,

237 Ill. 2d at 545, 931 N.E.2d at 1188. Thus, we begin by determining whether an error occurred.

¶ 13 “When a sentence of probation has been revoked, the trial court may impose any

other sentence that was available *** at the time of the initial sentencing.” (Internal quotation

marks omitted.) People v. Somers, 2012 IL App (4th) 110180, ¶ 21, 970 N.E.2d 606; see also

730 ILCS 5/5-6-4(e) (West 2014). The court may consider the defendant’s conduct while on

probation in reassessing his rehabilitative potential; however, the sentence imposed must not be

punishment for the probation violation. People v. Risley, 359 Ill. App. 3d 918, 920, 834 N.E.2d

981, 983 (2005). “A sentence within the statutory range for the offense will not be disturbed as

an abuse of discretion unless this court is strongly persuaded that the sentencing judge intended

-8- to penalize the defendant for violating his probation.” Risley, 359 Ill. App. at 920-21, 834 N.E.

2d at 983. A trial court’s remarks “must be taken in context, and read in their entirety, including

arguments of counsel.” People v. Young, 138 Ill. App. 3d 130, 142, 485 N.E.2d 443, 450 (1985).

¶ 14 Failure to register as a sex offender is a class 3 felony with a sentencing range of

probation or between two and five years in prison. 730 ILCS 150/10(a), 5/5-4.5-40(a), (d) (West

2014). Due to defendant’s prior felony convictions, he was eligible for an extended-term prison

sentence of up to 10 years. See 730 ILCS 5/5-4.5-40(a), 5-5-3.2(b)(1) (West 2014).

Accordingly, defendant’s sentence of seven years in prison fell within the statutory sentencing

range for the offense and was three years less than the State requested. The court indicated it

considered the statutory factors in aggravation and mitigation in reaching its decision. The court

specifically addressed “all relevant statutory factors, including, but not limited to, the nature and

circumstances of the offense, the evidence and applicable factors in aggravation and mitigation,

the character, history and rehabilitative potential of the defendant, his statement in allocution

here and the arguments and recommendations of counsel.” C.f. People v. Varghese, 391 Ill. App.

3d 866, 877, 909 N.E.2d 939, 949 (2009) (remanding for resentencing where the trial court never

expressly considered the underlying offense when fashioning its sentence). In considering

defendant’s request for another community-based sentence, the court commented on defendant’s

history of unsuccessful community-based sentences as well as his conduct while on probation in

this case. While the court suggested “repercussions” may be warranted where defendant

continued to disregard court orders and the law while on probation, it did so in the context of

considering defendant’s rehabilitative potential and the threat he posed to the community. The

court found defendant’s “unwillingness” to comply with the requirements of a community-based

sentence demonstrated it was “apparent [a community-based sentence] would not be successful.”

-9- In its final comments before rendering its sentence, the court made clear its sentence was based

on the “nature and circumstances of the offense and to the history, character and rehabilitative

potential of the defendant[.]” After reviewing the court’s comments in their entirety, we are not

persuaded the court’s sentence was intended to penalize defendant for his conduct while on

probation rather than the underlying offense.

¶ 15 Since we have found no error, defendant cannot establish plain error. Thus, we

honor his forfeiture.

¶ 16 III. CONCLUSION

¶ 17 For the reasons stated, we affirm the trial court’s judgment.

¶ 18 Affirmed.

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