People v. Milian

2022 IL App (3d) 190496-U

• Court: Appellate Court of Illinois
• Decided: January 28, 2022
• Docket: 3-19-0496
• Status: Unpublished

Opinion

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).

2022 IL App (3d) 190496-U

Order filed January 28, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the 13th Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) La Salle County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0496 v. ) Circuit No. 14-CF-264 ) WILLIAM J. MILIAN, ) Honorable ) Howard C. Ryan Jr., Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court. Presiding Justice O’Brien and Justice Hauptman concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) Defendant failed to establish plain error where the circuit court did not abuse its discretion when imposing defendant’s sentence, and (2) plea counsel and postplea counsel did not provide ineffective assistance.

¶2 Defendant, William J. Milian, appeals from his conviction for attempted murder.

Defendant argues that (1) the La Salle County circuit court improperly considered defendant’s

“Improper Exhibit Firearm Dangerous Weapon” charge, which was resolved by pretrial diversion

and dismissed, and (2) plea counsel and postplea counsel were ineffective. We affirm. ¶3 I. BACKGROUND

¶4 The grand jury indicted defendant with aggravated domestic battery (720 ILCS 5/12-3.3(a)

(West 2014)), aggravated battery (id. § 12-3.05(f)(1)) and attempted first degree murder (id. § 8-

4, 9-1(a)). The court appointed counsel to represent defendant. Defendant entered an open guilty

plea to attempted first degree murder, a Class X felony (730 ILCS 5/5-4.5-25 (a) (West 2014)). In

exchange for his plea, the State dismissed the remaining charges. The State’s factual basis

indicated that on the evening of July 26, 2014, defendant and his girlfriend, Maria Gallegos, had a

verbal argument. A short time after Gallegos went to bed, defendant entered the bedroom and held

a Samurai sword over his head. Defendant approached Gallegos and began swinging the sword at

her head. In an attempt to protect herself, Gallegos used her arms to shield her face, causing injuries

to her arms. Gallegos fell to the floor, and defendant continued to strike her with the sword, causing

more injuries. During the altercation, Gallegos’s minor child walked into the bedroom and

distracted defendant, allowing Gallegos to flee. Defendant pursued Gallegos outside, throwing the

sword at her. Gallegos slid the sword under her vehicle, and defendant fled.

¶5 Defendant’s presentence investigation report (PSI) listed several prior offenses in Florida.

The offenses included a 2003 misdemeanor charge for “Improper Exhibit Firearm Dangerous

Weapon” that defendant received pretrial diversion, 1 2003 and 2006 misdemeanor driving while

under the influence (DUI) convictions, 2006 misdemeanor disorderly conduct conviction, and

several other petty traffic offenses. Defendant also received a 2005 misdemeanor driving on a

1 While the Criminal Code of 2012 does not provide pretrial diversion for weapons offenses, section 17-1b defines pretrial diversion, in regard to the State’s Attorney’s bad check diversion program, as “the decision of a prosecutor to refer an offender to a diversion program on condition that the criminal charges against the offender will be dismissed after a specified period of time, or the case will not be charged, if the offender successfully completes the program.” 720 ILCS 5/17-1b(a) (West 2014). In Florida, where defendant’s offense occurred, the Florida code provides a “Pretrial intervention program,” which is similar to Illinois pretrial diversion. See Fla. Stat. § 948.08 (2002). 2 suspended license charge, and misdemeanor possession of alcohol by a person under the age of 21

charge, on which no convictions were entered. From Illinois, the PSI reported a 2010 felony

conviction for aggravated battery, in which defendant received four years’ imprisonment. At the

time of the report, defendant was divorced and had a three-year-old son. Defendant obtained his

general education diploma (GED) and maintained employment for several years leading up to the

present offense. Defendant reported alcohol and marijuana use. He underwent substance abuse

treatment in Florida due to his DUI offenses. Defendant indicated that he consumed six to seven

beers and two shots of liquor before the present offense. Defendant had not served in the military.

Gallegos and her two children completed victim impact statements, which described the negative

effect that defendant’s actions had on her children’s sense of safety, Gallegos health, and her ability

to work and parent her two minor children.

¶6 During sentencing, the State argued in aggravation that “defendant has a significant prior

criminal record starting in Florida in 2003 with a weapons charge, a DUI in 2003, some other

traffic matters, but most significantly in his prior criminal record in 2010, *** aggravated battery

and great bodily harm.” The State referred to the aggravated battery charge as a “crime of violence”

and that it “is a major aggravating factor” in this case. The State discussed the facts and

circumstances of the present case, including the significant injuries to Gallegos causing permanent

disability and the impact on her and her children. The State argued that both the present offense

and defendant’s aggravated battery conviction are evidence of defendant’s danger to the public.

The State said, “we now have our second very violent, very serious felony within the *** last five

years, and it’s just real cause for concern here.”

3 ¶7 Defense counsel argued in mitigation that according to family members and friends, this

act of violence was out of the ordinary for defendant. 2 Defendant maintained a relationship with

his minor child. Defendant received his GED and was capable of being a productive member of

society. Counsel noted that defendant had an issue with alcohol. Counsel highlighted that

defendant pled guilty and took accountability for his actions.

¶8 Defendant accepted responsibility for the crime and asked for leniency in sentencing.

Specifically, defendant contended that he was a productive member of society, received two years

of college education, consistently held employment, and was an active parent. Defendant said he

was “extremely remorseful for what has happened.”

¶9 The court considered the PSI, letters submitted on defendant’s behalf, and the victim

impact statement. The court referred to defendant’s criminal history, stating

“[a]dult history, a 2010 aggravated battery. *** There’s a Florida disorderly

conduct, a DUI, equipment violation, excessive noise, possession of alcohol by a

person under 21, driving while suspended, parking violation, careless driving ***

in ’03, [DUI] in ’03, improper exhibition of firearm or dangerous weapon

misdemeanor in ’03 and some petty traffics in Illinois.

He is currently divorced. He has a son three years of age. There’s no

indication whatsoever of any support to the minor child. He has his GED. He never

served in the military. Obviously he’s currently unemployed. However, prior to this

apparently he was employed. *** Good physical health, no psychiatric or

2 The letters submitted on defendant’s behalf at the sentencing hearing were not included in the record on appeal. 4 psychological treatment or evaluations or testing. Drug and alcohol, apparently he

has alcohol and marijuana. ***

The victim in the crime ***, I’ve considered her letter as well as the two

letters of her children. *** I consider one of the major things also are the facts of

the case. The factual basis that was presented the Court takes that in to consideration

when it imposes any sentence ***. It takes in the prior criminal history of the

defendant. The State pointed out he has a prior crime of violence, and he has done

time in the Department of Corrections ***. He has other matters in ’03, [DUI],

driving while suspended and apparently there was a display of a weapon charge.

The fact that the injury occurred in this particular matter is one thing. The

extent of the injury is what I put my weight on, not the fact that an injury was part

of the charge. *** There’s disability that’s going to be permanent apparently it

appears and so the extent of the injury is severe. The time and place and location of

this particular proceeding and how it occurred is also a matter the Court can

consider and of course lastly any sentence the Court imposes is necessary to deter

others. ***

Mitigation as pointed out he pled guilty. The Court considers that as

consciousness of guilt and remorse on the matter. The Court gives weight to that.

He has a child. *** The major thing that has been argued to the Court and probably

is the most persuasive to the Court is the safety to society. *** He has a prior crime

of violence. The facts and circumstances of this particular matter the Court

considers as I previously indicated.”

The court sentenced defendant to 22 years’ imprisonment.

5 ¶ 10 Plea counsel filed a motion to reconsider sentence and an amended motion to reconsider

sentence. In the motions, defendant argued that the court improperly weighed the factors in

aggravation and mitigation and gave defendant an excessive sentence. Plea counsel filed a Rule

604(d) certificate. The court denied defendant’s motion. Defendant appealed. We vacated the

circuit court’s ruling, finding that counsel’s Rule 604(d) certificate was not compliant with Illinois

Supreme Court Rule 604(d) (eff. July 1, 2017). People v. Milian, 2019 IL App (3d) 150212-B,

¶¶ 6, 13, 15. Specifically, we found that counsel’s Rule 604(d) certificate failed to show that he

reviewed the transcripts of the sentencing hearing before filing his motion to reconsider sentence.

Id. ¶ 13. We remanded with directions for counsel to file a new Rule 604(d) certificate, to provide

an opportunity to file a new motion to withdraw guilty plea or reconsider sentence, if necessary,

and the court to conduct a new motion hearing. Id.

¶ 11 On remand, the court appointed new postplea counsel. Postplea counsel filed a motion to

reconsider sentence and Rule 604(d) certificate. The motion to reconsider alleged, inter alia, that

the circuit court erred in considering defendant’s weapons charge where defendant received

pretrial diversion.

¶ 12 At the hearing on defendant’s motion to reconsider sentence, postplea counsel argued that

the court erred in considering defendant’s weapons charge when he received pretrial diversion,

and postplea counsel believed the charge “would have been dismissed.” In denying defendant’s

motion, the court stated that at sentencing, it had considered the PSI and that “there’s nothing new”

that postplea counsel presented for the court to consider.

¶ 13 II. ANALYSIS

¶ 14 A. Sentence

6 ¶ 15 Defendant argues that the court improperly considered his “Improper Exhibit Firearm

Dangerous Weapon” charge, which was resolved by pretrial diversion and dismissed. Defendant

concedes that he failed to properly preserve this issue with a simultaneous objection and posttrial

motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant asks that we review his claim

under the second prong of the plain error doctrine.

¶ 16 The plain error doctrine allows a reviewing court to consider an unpreserved sentencing

error where: (1) the evidence at the sentencing hearing was closely balanced; or (2) the error was

so egregious that defendant was denied a fair sentencing hearing. People v. Hall, 195 Ill. 2d 1, 18

(2000). The defendant has the burden of persuasion under both prongs of the plain error doctrine.

People v. Naylor, 229 Ill. 2d 584, 593 (2008). To obtain relief under this rule, a defendant must

first show that a clear or obvious error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

If defendant does not meet this burden, a reviewing court will honor the procedural default of the

issue. Id.

¶ 17 The Illinois Constitution requires that “[a]ll penalties shall be determined both according

to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” Ill. Const. 1970, art. I, § 11. The circuit court has wide latitude in sentencing a

defendant to any term prescribed by statute, “[a]s long as the court does not consider incompetent

evidence, improper aggravating factors, or ignore pertinent mitigating factors ***.” People v.

Hernandez, 204 Ill. App. 3d 732, 740 (1990). Relevant sentencing considerations include the

nature of the crime, the public’s protection, deterrence, punishment, and the defendant’s

rehabilitative potential. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). The weight that the circuit

court should attribute to any factors in aggravation and mitigation depends on the particular

circumstances of the case. Id.

7 “A trial court may not, however, consider an improper factor in sentencing

defendant. [Citation.] ‘Consideration of an improper factor in aggravation clearly

affects the defendant’s fundamental right to liberty, and a court of review must

remand such a cause for resentencing, except in circumstances where the factor is

an insignificant element of the defendant’s sentence.’ [People v. Joe, 207 Ill. App.

2d 1079, 1085 (1991)]. ‘In determining the correctness of a sentence, the reviewing

court should not focus on a few words or statements made by the trial court, but is

to consider the record as a whole.’ [People v. Fort, 229 Ill. App. 3d 336, 340

(1992)]. To obtain a remand for resentencing, therefore, defendant must show more

than the mere mentioning of an improper fact. [Citation.] ‘An isolated remark made

in passing, even though improper, does not necessarily require that defendant be

resentenced.’ Fort, 229 Ill. App. 3d at 340. Rather, defendant must show that the

trial court relied on the improper fact when imposing sentence.” People v. Reed,

376 Ill. App. 3d 121, 128 (2007).

¶ 18 We will not disturb a sentence within the applicable sentencing range unless the circuit

court abused its discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). We will find an abuse

of discretion only where the court’s ruling is arbitrary, fanciful, unreasonable, or where no

reasonable person would take the view adopted by the court. Hall, 195 Ill. 2d at 20.

¶ 19 The statutory sentencing range for a Class X felony is 6 to 30 years’ imprisonment. See

720 ILCS 5/8-4, 9-1(a) (West 2014); 730 ILCS 5/5-4.5-25(a) (West 2014). Defendant’s 22-year

prison sentence for attempted murder is within the statutory range for that offense. Therefore, the

sentence is presumptively valid. People v. Sauseda, 2016 IL App (1st) 140134, ¶ 12.

8 ¶ 20 From our review of the PSI, the “Improper Exhibit Firearm Dangerous Weapon” charge

shows that defendant resolved the charge by pretrial diversion. The record shows that the court

and the State only referred to the offense as a “charge.” Supra ¶¶ 6, 9. The court is presumed to

know and follow the law, and therefore is presumed to understand that pretrial diversion does not

amount to a conviction. Supra ¶ 5; see also People v. Duff, 374 Ill. App. 3d 599, 605 (2007).

Defendant fails to support his claim with any affirmative indication that the court improperly

considered his pretrial diversion a conviction. See People v. Wilson, 2016 IL App (1st) 141063,

¶ 11 (“[A] defendant ‘must make an affirmative showing that the sentencing court did not consider

the relevant factors.’ ” (quoting People v. Burton, 2015 IL App (1st) 131600, ¶ 38)).

¶ 21 Even assuming, arguendo, that the court considered the weapons charge a conviction, the

factor was an insignificant element of defendant’s sentence. Viewing the court’s statements as a

whole, the most heavily considered factors were defendant’s felony aggravated battery conviction

and the particularly serious facts of the present case. See Reed, 376 Ill. App. 3d at 128. In

comparison, the court mentioned defendant’s criminal history, including his pretrial diversion

offense in passing. Therefore, defendant cannot show that the court relied on an improper factor

in aggravation and abused its discretion when imposing defendant’s sentence. Where no error

exists, defendant cannot establish plain error.

¶ 22 B. Ineffective Assistance of Plea and Postplea Counsel

¶ 23 Defendant argues he received ineffective assistance of plea counsel for failing to

investigate defendant’s weapons charge, object to the State’s argument relying on the charge, and

correct the court’s reliance on the charge. Defendant also argues that postplea counsel was

ineffective for failing to argue the ineffective assistance of plea counsel in the motion to reconsider

sentence and show the court the weapons charge had been dismissed to support his postplea claim.

9 ¶ 24 To challenge the effectiveness of counsel, a defendant must show: (1) counsel’s

performance fell below an objective standard of reasonableness, and (2) there is a reasonable

probability that, but for counsel’s error, the result of the proceedings would have been different.

Strickland v. Washington, 466 US. 668, 694 (1984). “[W]e may dispose of an ineffective assistance

of counsel claim by proceeding directly to the prejudice prong without addressing counsel’s

performance.” People v. Hale, 2013 IL 113140, ¶ 17.

¶ 25 Here, defendant’s ineffective assistance of plea and postplea counsel claims both fail. Both

of defendant’s claims derive from his argument that his sentence is excessive, and his attorneys

failed to object or sufficiently raise this issue during a prior proceeding. However, we determined

above that defendant’s sentence is not excessive. Supra ¶¶ 19-21. Accordingly, plea and postplea

counsel were not ineffective for failing to raise this meritless issue.

¶ 26 III. CONCLUSION

¶ 27 The judgment of the circuit court of La Salle County is affirmed.

¶ 28 Affirmed.