People v. Mossette

2021 IL App (2d) 200571-U

• Court: Appellate Court of Illinois
• Decided: August 12, 2021
• Docket: 2-20-0571
• Status: Unpublished

Opinion

2021 IL App (2d) 200571-U No. 2-20-0571 Order filed August 12, 2021

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)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-1077 ) JULIUS LAMONT MOSSETTE, JR.1, ) Honorable ) Debra D. Schafer, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court. Justices McLaren and Zenoff concurred in the judgment.

ORDER

¶1 Held: The record showed that the sentence imposed after revocation of probation was punishment for the original offense and not for defendant’s conduct while on probation. The trial court did comment on defendant’s pending charge of domestic battery involving his son, but given the totality of the court’s remarks at resentencing, the court considered only how that charge reflected on defendant’s rehabilitative potential.

1 The caption is based on the indictment. At several hearings, defendant clarified that his

name is “Julius Lamont Mossette, Sr.” 2021 IL App (2d) 200571-U

¶2 Defendant, Julius Lamont Mossette Jr., appeals a judgment revoking his probation for

failure to register as a sex offender (failure to register) (730 ILCS 150/3 (West 2018)) and

resentencing him to five years in prison. Defendant contends that the trial court improperly

sentenced him for an alleged offense he committed on probation instead of for the underlying

offense. We hold that the court did not commingle the offenses but properly considered the

intervening offense solely as evidence of defendant’s limited rehabilitative potential. Thus, we

affirm.

¶3 I. BACKGROUND

¶4 On October 10, 2018, defendant was charged with failure to register. On November 1,

2018, he entered a fully negotiated plea of guilty and was sentenced to 30 months’ probation. The

factual basis was as follows. In April 2018, defendant was arrested on an unrelated charge. After

being released from custody on April 25, 2018, he had three days in which to register with the

police department but failed to do so. On April 30, 2018, defendant called the department and said

that he had entered a hospital because of mental health problems. After leaving the hospital, he

failed to register. Defendant had previously served a prison sentence for failure to register.

However, the State agreed to recommend probation in light of the extenuating circumstances. The

court accepted the plea and sentenced defendant accordingly.

¶5 On January 15, 2019, the State petitioned to vacate defendant’s probation, alleging in part

that, on November 28, 2018, he had tested positive for alcohol consumption. On February 26,

2019, defendant admitted the allegation and was resentenced to an agreed term of 26 months’

probation.

¶6 On September 13, 2019, the State again petitioned to vacate defendant’s probation, alleging

that he had failed three times to report to the probation department; that he had twice tested positive

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for illicit drugs; and that he had once failed to provide a urine sample for drug and alcohol testing.

On March 23, 2020, defendant admitted to one allegation of failing to report to the probation

department. The court continued the matter for resentencing.

¶7 A presentencing investigation report (PSIR) noted the following. Defendant was currently

charged with aggravated domestic battery and aggravated battery (case No. 19-CF-1866).

Defendant’s history included aggravated battery and criminal sexual assault, both committed as a

juvenile in 1992. In each case, he was sentenced to 18 months’ probation, which terminated

unsatisfactorily. In 1996, as an adult, defendant was convicted of possession of cannabis; he

received three months’ probation, which was terminated satisfactorily. In 1998, defendant was

convicted of aggravated criminal sexual assault, a Class X felony, and unlawful restraint, a Class

4 felony, both committed in 1996. He was sentenced to 10 years in prison. Defendant also

committed failure to report a change of address and driving without a valid license, both in 2004;

forgery in 2005; aggravated battery in 2006; possession of a controlled substance in 2007; criminal

damage to property in 2010; failure to register in 2011; driving under the influence of alcohol in

2012; and aggravated assault of a peace officer in 2015.

¶8 On June 25, 2020, the trial court held a resentencing hearing. The sole witness, Rockford

police officer Abel Castaneda, testified as follows. On June 28, 2019, he was dispatched to a street

in Rockford. Jarvair Jones, defendant’s son, had crashed his moped and was lying next to it.

Castaneda called an ambulance and asked Jones what had happened. Jones said that defendant

had stabbed him. He had slash marks on his arm and hand. At the hospital, Jones told Castaneda

that, while driving home, he saw defendant and learned that he had been using Jones’s home

address as his own. Jones became upset because defendant was a sex offender. He confronted

defendant about it. Defendant became angry, started throwing punches at Jones, then left and

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returned with a knife. He stabbed Jones three times. Jones sped away on his moped and crashed

into a curb. Jones said that he and defendant had fought numerous times and that defendant had

stabbed him multiple times. He was afraid that defendant would attack him again.

¶9 Castaneda testified that Jones’s account initially changed several times during the

interview, but he eventually gave a consistent story. Castaneda took photographs of the injuries

that Jones attributed to defendant. He also wrote a statement that Jones signed. The statement

was consistent with what Jones said to Castaneda and added that Jones wanted to press charges.

These charges were brought in case No. 19-CF-1866.

¶ 10 In argument, the State emphasized defendant’s lengthy criminal record and repeated

problems in complying with probation. He had failed to control his substance abuse. Further,

several of his offenses were violent. Finally, defendant’s previous failures to register as a sex

offender, and his use of his son’s address as his own, indicated that another term of probation

would mean continued noncompliance with its conditions. The State urged a seven-year sentence,

the statutory maximum. See id. § 10(a) (second or subsequent failure to register is Class 2 felony);

730 ILCS 5/5-4.5-35(a) (West 2018) (Class 2 felony sentencing range is three to seven years).

¶ 11 Defendant requested probation, arguing as follows. Incarceration would not help him

address his substance abuse and psychological instability. Evidence of his confrontation with his

son was hearsay and unreliable. He had cooperated with probation many times and recognized the

need to address his problems. The failure to register neither caused nor threatened serious physical

harm to anyone, and his character and attitude showed that he was unlikely to commit another

crime.

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¶ 12 In allocution, defendant noted that, originally, he had failed to register because he had been

in the hospital for mental health problems. Probation would enable him to learn how to deal with

his psychological difficulties. Also, he could stay in touch with his children and provide for them.

¶ 13 The trial court stated as follows. In aggravation, defendant had a substantial history of

delinquency and crime. It was also necessary to deter others from committing the same crime,

although that factor applies in every case. In mitigation, defendant’s offense, failing to register,

neither caused nor threatened serious physical harm to anyone; the offense was nonviolent.

¶ 14 However, the court could not find that defendant had led a law-abiding life for a substantial

period before committing his offense. There had not been “a substantial chunk of time” in which

defendant had not had “a problem.” In particular, defendant’s 2015 aggravated assault had been

the subject of three petitions to revoke probation. Moreover, he had been arrested while on

probation for the present offense. Turning to defendant’s argument that his character and attitudes

made another crime unlikely, the court granted that he had demonstrated insights into his

condition, which increased his chances of success. Nonetheless, defendant’s record was “replete

with attempts at probation and unsatisfactory discharging.” These applied to his 1992 juvenile

offenses and his criminal convictions in 2006, 2007, 2010, 2015, and 2019, the last for failure to

register. The court told him, “With that kind of history, I don’t think that I can find that you would

be particularly likely to comply with the terms and conditions of a period of probation.”

¶ 15 The court could not find that imprisonment would entail excessive hardship to defendant’s

dependents; he had a nine-year-old son, but his parental rights had been terminated.

¶ 16 The court then stated that, although defendant had been “pleasant” in court, it was “hard to

reconcile that person” with Castaneda’s testimony and Jones’s statement. Defendant had injured

his son, not merely threatening him with a knife but cutting him. Further, Jones had said that

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defendant had stabbed him before and that he was afraid of him. The court commented, “That’s

quite a legacy. So I have to make this decision in the context of that as well.”

¶ 17 The court continued:

“You have admitted that you violated the terms and conditions of your probation.

That was not for a substantive offense. It was for what’s called a status violation which, in

my mind, is a lesser issue, but I also have to put it in the context of your prior performance

on probation.

I don’t know if you’re sitting here now saying that you are able and willing to

comply with the terms and conditions of probation because of medications that you’re on

that you just don’t follow through on when you’re out in the community. I know you talked

a great deal *** about life sort of gets in the way. As bad as I imagine jail is, it can be

much more simplified and you’re getting your medication and there’s not a whole lot of

choice about it.

And there’s lots of choices when you’re out of custody. And there’s a lot that life

throws at you. And you’re not always dealing very well with those things, and I don’t think

you’re following through on the mental health aspect of it. I don’t think you follow through

even if you have every intention to do so now when you’re placed on a period of probation.

It is for that reason that I am sentencing you to [prison] for a period of five years.

I don’t think a term of seven is appropriate. ***

There is substance abuse treatment in the Department of Corrections. I hope you

avail yourself of that. ***

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But I simply feel that with the record that you have put together since getting

involved in the court system in 1992, to place you on another term of probation would

deprecate the seriousness of the offense.”

¶ 18 Defendant moved to reconsider his sentence. He argued in part that, although the court

could properly consider his conduct while on probation, it had improperly commingled the original

offense, failure to register, with the conduct in case No. 19-CF-1866 and had thus improperly

punished him for the latter instead of the former. At the hearing on defendant’s motion, the court

stated that the comments on defendant’s confrontation with Jones had been intended to note the

unfortunate “legacy” that defendant had left for his son. The alleged offense had not been an

“overriding” factor in sentencing; defendant’s criminal history and his performance on probation

had “carried more weight.” The court again discussed defendant’s lengthy juvenile and adult

history and his repeatedly unsatisfactory performance while on probation. The court stated that it

had not commingled the circumstances of defendant’s original offense with those of his alleged

offense against his son. Thus, it denied defendant’s motion to reconsider his sentence.

¶ 19 This timely appeal followed.

¶ 20 II. ANALYSIS

¶ 21 On appeal, defendant argues that the trial court erred in commingling the offense for which

he was being resentenced, failure to register, with the alleged offense that he committed against

his son Jones shortly thereafter. Defendant contends that, as a result, the court improperly punished

him for the latter offense and not the former. For the reasons that follow, we disagree.

¶ 22 After revoking a defendant’s probation, the trial court may impose any sentence that would

have been appropriate for the original offense. People v. Risley, 359 Ill. App. 3d 918, 920 (2005).

The court may consider the defendant’s conduct while on probation as it bears on his rehabilitative

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potential. Id. However, the new sentence may not be punishment for that conduct. People v.

Varghese, 391 Ill. App. 3d 866, 876 (2009). “ ‘[A] sentence within the statutory range for the

original offense will not be set aside on review unless the reviewing court is strongly persuaded

that the sentence imposed after revocation of probation was in fact imposed as a penalty for the

conduct which was the basis of revocation, and not for the original offense.’ ” (Emphases in

original.) People v. Vilces, 186 Ill. App. 3d 983, 987 (1989) (quoting People v. Young, 138 Ill.

App. 3d 130, 142 (1985)); see People v. Miller, 2021 IL App (2d) 190093, ¶ 24. “ ‘[T]he record

must clearly demonstrate that the trial court considered [the] defendant’s original offense when

fashioning his sentence.’ ” Miller, 2021 IL App (2d) ¶ 24 (quoting Varghese, 391 Ill. App. 3d at

877).

¶ 23 Defendant cites the court’s discussion of his alleged offense in case No. 19-CF-1866 to

argue that the court intended his sentence as punishment for that conduct and not for failing to

register. After reading the court’s entire explanation, however, we are not strongly persuaded—

or, indeed, persuaded at all—that the court did anything other than consider the alleged offense as

one of many factors that bore on his suitability for probation and prospects for rehabilitation.

¶ 24 The court’s explanation of the sentence covers approximately seven pages in the transcript.

The great majority of that is taken up with a thorough discussion of the pertinent factors in

aggravation and mitigation. The court considered the original offense. The court began its

discussion of the possible factors in mitigation by stating that the original offense, failure to

register, did not cause or threaten serious harm and that defendant did not contemplate or intend

such harm. Next, the court noted that defendant had a substantial history of offending, including

some violent felonies, dating back to 1992. The court correctly noted that, in several instances,

defendant had received probation but had failed to complete it satisfactorily, showing that he would

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not be “particularly likely to comply with the terms and conditions of a period of probation.” The

court thus emphasized defendant’s entire juvenile and criminal record as it bore on his prospects

for rehabilitation and thus the appropriate sentence. Next, the court noted that a prison sentence

would not entail excessive hardship on defendant’s dependents.

¶ 25 There was no impropriety in any of the foregoing; defendant does not contend otherwise.

It was only halfway through the trial court’s discussion, when it turned to defendant’s attack on

Jones, that the court did what defendant contends was error. The court noted that defendant

attacked his son and that his son was afraid of him. Those facts were drawn from the evidence,

and the court did not imply that they were the basis for the ensuing sentence. Indeed, directly after

making them, the court again noted that defendant was being resentenced for a “status violation”

but that this offense had to be placed into the “context of [his] prior performance on probation.”

¶ 26 The court then returned to its predominant theme: defendant’s prospects for rehabilitation

and the need for a substantial prison term instead of yet another chance at probation. Defendant

had consistently failed to follow through on probation, and “[i]t [was] for that reason” that the

court imposed a prison sentence. The court summed up: “[W]ith the record that you have put

together since getting involved in the court system in 1992, to place you on another term of

probation would deprecate the seriousness of the offense.” It then sentenced defendant to five

years’ imprisonment, two years less than the statutory maximum, which the State had urged.

¶ 27 The record simply refutes defendant’s contention that the trial court punished him for his

conduct during his latest term of probation and not for the underlying offense. The court repeatedly

made it plain that defendant was being punished for failure to register. The court did discuss

defendant’s attack on his son, as that recent and very serious conduct bore on his character and

rehabilitative prospects; but it paid far more attention to how defendant’s entire record over nearly

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three decades bore on those basic factors. The court used this comprehensive view, along with

other pertinent circumstances, to fashion defendant’s sentence. Defendant does not contend that

his sentence was excessive in light of the pertinent factors, and we could not so hold even if he

did. See People v. Alexander, 239 Ill. 2d 205, 212 (2010) (reviewing court may not reduce a

sentence unless trial court abused its discretion). Defendant has failed to show any error.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

¶ 30 Affirmed.

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