People v. Musgrave

2019 IL App (4th) 170106

• Court: Appellate Court of Illinois
• Decided: June 10, 2019
• Docket: 4-17-0106
• Status: Unpublished

Opinion

FILED June 10, 2019 2019 IL App (4th) 170106 Carla Bender 4th District Appellate NO. 4-17-0106 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County TARYLL MUSGRAVE, ) No. 15CF275 Defendant-Appellant. ) ) The Honorable ) Scott D. Drazewski, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justice Knecht concurred in the judgment and opinion. Justice Turner specially concurred, with opinion.

OPINION

¶1 In February 2015, defendant, Taryll Musgrave, was pulled over by the police

while driving. During the traffic stop, defendant consented to being searched. Later that month,

the State charged defendant with (count I) unlawful possession of a controlled substance with

intent to deliver and (count II) unlawful possession of a controlled substance. 720 ILCS

570/401(a)(2)(A), 402(a)(2)(A) (West 2014). In September 2015, defendant filed a motion to

suppress evidence obtained from the search conducted during the traffic stop. The trial court

denied this motion.

¶2 In August 2016, the State and defense counsel presented the trial court with a

proposed plea agreement in which defendant would plead guilty and be sentenced to 13 years in

prison. Defendant rejected this agreement in open court and elected to proceed to trial. ¶3 In October 2016, the State dismissed count I and the parties proceeded to a

stipulated bench trial on count II. The trial court found defendant guilty of count II (unlawful

possession of a controlled substance). In December 2016, the court sentenced defendant to 16

years in prison.

¶4 Defendant appeals, arguing (1) the trial court should have granted his motion to

suppress because the police prolonged the traffic stop beyond the time necessary to complete the

mission of the stop, (2) the trial court’s sentence was an abuse of discretion, and (3) the trial

court imposed “a trial tax.” We disagree and affirm.

¶5 I. BACKGROUND

¶6 A. The Charges

¶7 In February 2015, the State charged defendant with (count I) unlawful possession

of a controlled substance with intent to deliver (more than 15 grams but less than 100 grams of a

substance containing cocaine) and (count II) unlawful possession of a controlled substance (more

than 15 grams but less than 100 grams of a substance containing cocaine). Id. §§ 401(a)(2)(A),

402(a)(2)(A). The State noted that defendant was extended-term eligible for count II due to his

prior criminal record. After the trial court initially appointed the public defender’s office at

defendant’s request, he chose to proceed pro se.

¶8 B. The Motion To Suppress

¶9 In September 2015, defendant pro se filed a motion to suppress evidence obtained

from a search conducted during his traffic stop. In his motion, defendant wrote that on February

26, 2015, he “was pull[ed] over for a traffic violation” and that “Officer Jared Johnson asked if I

had anything illegal on me. He also ask[ed] for consent to search me. I granted the consent.” In

pertinent part, defendant essentially argued that his consent was “tainted” because the police

-2- prolonged the stop beyond the time necessary to complete the mission of the stop.

¶ 10 In November 2015, the trial court conducted a hearing on defendant’s pro se

motion to suppress. Defendant first called Officer Tyrel Klein as a witness.

¶ 11 1. Officer Klein

¶ 12 Klein testified that he was a police officer with the Bloomington Police

Department. On February 26, 2015 at 2:10 p.m., he pulled over a taxicab that defendant was

driving. Klein noted that defendant had a passenger in the back seat of his taxicab. Klein stated

that he pulled defendant over because he was speeding, failed to use his turn signal, and made an

improper left turn. During the State’s cross-examination, Klein testified as follows:

“Q. Now when you made the traffic stop, what did you initially do or say

to the defendant?

A. I—like I do with every traffic stop—I introduced myself, and I

explained the reason for the stop and I asked for [defendant’s] driver’s license and

proof of insurance.

Q. And so you explained the speeding, as well as the signal and the turn

issues?

A. Yes.

Q. Was that at about 14:10:59 [2:10 p.m.]?

***

Q. And did, in fact, did you take his driver’s license and insurance card?

Q. And as part of your routine traffic stop, what do you do with those

-3- items?

A. I completed a records check through the Illinois Secretary of State

using my in-car computer.

Q. Do you have to walk back to your squad car [to do that]?

Q. Initially you received the traffic driver’s license and insurance card

from the defendant at 14:11 and 33 seconds [2:11 p.m.]?

Q. And did you go back to your car to fill out paperwork?

Q. And as far as that goes, there is more than one form, correct?

Q. Did you find out who [the] passenger was?

A. I did.

Q. Did you go on your computer to check to see whether that person was

clear or had any active warrants or anything like that?

A. I checked that person as well.

Q. And did you check the defendant?

Q. And what, if anything, did he as far as him being clear or valid [sic]?

A. His license was valid.

Q. Does that take a few minutes to run those records through the

computer?

-4- A. To type it in and run it, yes.

Q. Likewise, you had to obtain the identification from both individuals

prior to that?

Q. And you did all that, is that right?

Q. And while you’re doing that you also had to deal with paperwork,

correct?

A. Correct.

Q. Did you—Officer Jared Johnson arrive[d] while you were dealing with

paperwork and these records checks?

Q. Was that about 14:18 and 36 seconds [2:18 p.m.]?

Q. And as far as that goes, the paperwork you included, let’s specifically

talk about that. Did you get out and assist Officer Jared Johnson?

A. When I saw Officer Johnson placing the defendant into custody, I

stepped up to assist.

Q. In the interim you were just doing paperwork and not helping [Officer

Johnson] relating to his role?

Q. Officer Johnson, what was his role?

-5- A. He’s a backup officer.

Q. Did he come to back you up?

Q. As far as that goes, were you in the squad car when he was dealing with

the defendant?

Q. And did you see Officer Jared Johnson handcuff him?

Q. And when he handcuffed him, is it fair to say that was about 14:20 and

25 seconds [2:20 p.m.]?

Q. You hadn’t completed all of your paperwork after doing the records

check at that point, had you?

A. I had not.

Q. And, in fact, what paperwork, if any, had you fully completed?

A. I hadn’t even fully completed the written warning.

Q. Did you finish that [written warning] after actually [sic] the traffic stop

occurred?

A. Yes.”

¶ 13 2. Officer Johnson

-6- ¶ 14 Officer Johnson, during defendant’s pro se direct examination, testified as

follows:

“Q. *** Did you have occasion to see [me] parked in a vehicle ***?

Q. Was I in the vehicle?

Q. Was I with anyone?

Q. Who was I with?

A. A passenger, female. I don’t know [her] name.

Q. What type of vehicle was I in?

A. Taxi cab.

Q. Who was driving the vehicle?

A. You were.

Q. Then you asked [defendant] if you could search him to make sure he

had nothing illegal on him?

A. That sounds accurate.

Q. You *** asked if there was any reason the K-9 would indicate for the

odor of narcotics, correct?

A. At some point, yes.

-7- Q. What was the situation you wanted to explain to the defendant when

you requested him to exit the car?

A. That the K-9 was going to do a free-air sniff of the car, the K-9 was

already on scene and by our policy we remove all occupants of the vehicle before

the K-9 does a free-air sniff.”

¶ 15 During the State’s cross-examination, Johnson testified as follows:

“Q. You were the backup officer. Is that right?

A. Yes, sir.

Q. And when you arrived, when you went up to the car that the defendant

was in at about 14:19 [2:19 p.m.] and 18 seconds. Is that right?

Q. Did you tell him you were going to have him exit the car?

Q. Was there another officer who arrived by the name of Officer Shively?

A. There was.

Q. And why would you have him get out of the car, because Officer

Shively was there?

A. Because Officer Shively is our K-9 officer *** by our policy for safety

reasons, when we have the K-9 conduct a free-air sniff of the vehicle we have all

of [the] occupants of the vehicle, with the exception of infants and small children,

exit the vehicle.

-8- Q. And so the female [passenger] was taken out of the car?

A. Eventually, yes.

Q. And the defendant got out of the car pretty easily. Is that right?

A. That’s correct.

Q. Was he cooperative?

A. He was.

Q. And where did you go? Did you go off to the side of the road?

A. We got out of the lane of traffic and off to the side, yes.

Q. While that’s happening, Officer Tyrel Klein, he’s in his squad car,

Q. What is he doing?

A. Running the driver’s information, maybe issuing a citation.

Q. Just so it’s clear, he’s not helping you?

A. Negative, he’s not [helping me].

Q. He’s dealing with the traffic citation?

Q. So he’s doing his paperwork related to the traffic stop, correct?

Q. And you’re doing dealing [sic] with the defendant and the free-air

sniff?

-9- Q. And Officer Shively is there as well?

Q. In fact, it didn’t get to that point [of using the drug dog], though, did it?

A. It did not.

Q. And, in fact, at 14:19:36 [2:19 p.m.] you asked [defendant] if you

[could] searched [sic] him real quick. Is that right?

Q. And [defendant] said if you want to. Is that right?

Q. So, in fact, did you conduct that search?

Q. And where is Officer Klein at that time?

A. Still in the driver’s seat of his squad car.

Q. Doing the paperwork?

Q. And then at 14:20 and 25 seconds [2:20 p.m.], that’s when you

handcuffed the defendant?

A. That sounds correct.

Q. And where was Officer Klein at that time?

A. In his driver’s seat.

Q. And, again, he wasn’t helping you in any form or fashion dealing with

- 10 - this secondary aspect or [the] K-9 free-air sniff preparation?

A. Correct.”

¶ 16 3. The Trial Court’s Ruling

¶ 17 Following this testimony, defendant pro se argued that “the officer went beyond

the scope of the *** traffic stop *** which also tainted the consent to search.” The State argued

that the officers were “basically textbook perfect” and that they did not prolong the traffic stop.

The trial court agreed with the State and denied defendant’s pro se motion to suppress. The court

found that, based on the evidence presented, “it’s at most ten minutes, ten minutes from the time

that the defendant was stopped until the time that he was actually placed under arrest, and that is

not an unreasonable amount of time[.]” Following the denial of his pro se motion, defendant

hired private counsel.

¶ 18 C. The Rejected Plea Agreement

¶ 19 In August 2016, the State and defense counsel presented the trial court with a

proposed plea agreement. Pursuant to this agreement, defendant would (1) plead guilty to count I

(unlawful possession with intent to deliver), (2) receive a 13-year prison sentence, (3) receive

credit for 525 days he had spent in pretrial custody, and (4) pay a $2000 fine. Further, the State

would dismiss count II (unlawful possession of a controlled substance). In open court, defendant

rejected the proposed agreement. In September 2016, the court reappointed the public defender.

¶ 20 D. The Stipulated Bench Trial

¶ 21 In October 2016, the trial court conducted a stipulated bench trial. The State

dismissed count I (unlawful possession with intent to deliver) and proceeded on count II

(unlawful possession). 720 ILCS 570/401(a)(2)(A), 402(a)(2)(A) (West 2014). The State and

defendant agreed to an evidence stipulation which, in pertinent part, stated the following:

- 11 - (1) defendant was lawfully stopped and consented to be searched; (2) Officer Johnson found a

cigarette package inside defendant’s pocket which contained a white powdery substance; (3) this

white powdery substance tested positive for the presence of cocaine and weighed 22.5 grams;

and (4) the street value of the drugs was $2250. Defendant did not concede that this stipulation

would be sufficient to find him guilty beyond a reasonable doubt. Following this stipulation, the

court found defendant guilty of count II (unlawful possession of a controlled substance). Id.

§ 402(a)(2)(A).

¶ 22 E. Sentencing

¶ 23 In December 2016, the trial court conducted a sentencing hearing. The parties

agreed that, due to defendant’s prior convictions, his permissible sentence ranged from a 6-year

minimum to a 30-year maximum. 730 ILCS 5/5-5-3.2(b)(1) (West 2016). In aggravation, the

State highlighted defendant’s criminal history, which included (1) a 1997 Class X felony

conviction for possession of cannabis and (2) a 2007 Class 1 felony conviction for delivery of a

controlled substance. Specifically, the State argued as follows:

“Obviously the most aggravating factor here when you look at where the

defendant is at today is his criminal record. It’s significant. He’s facing mandatory

Class X sentencing because of his prior record. *** He served 10 years on that

[1997 conviction]. Then he served 12 years on another drug offense [in 2007]. It’s

almost as if he’s like serving a life sentence on the installment plan with drug

offenses.

At this point in time this defendant doesn’t get it. He has no interest in

leading a law-abiding life. Never had any real employment or anything like that in

his entire life. His adult life has been about drugs. There is no realistic expectation

- 12 - when you look at this defendant and history that he’s going to change his ways.”

¶ 24 Based upon this, the State recommended a 20-year sentence. Defense counsel

requested a sentence “in the range” of 6 to 10 years. Defense counsel highlighted defendant’s

traumatic childhood, his good behavior while in pretrial custody, and his apparent drug

addiction. Defense counsel further argued that defendant was neither violent nor a threat to

society.

¶ 25 In his statement of allocution, defendant apologized and took “complete

responsibility” for his actions. Defendant stated that drug addiction took control of his life. He

admitted to using drugs while at work and was “ashamed” that he put his “customers and other

pedestrians in harm’s way” because of it. He further stated that he was “truly good” to his family

and supported his children “first and foremost.” However, defendant conceded that the rest of his

money “went to [his] habits and addictions” and that his “savings, tips, and extra money” were

used to purchase drugs. He stated that he had “sinned against [his] family” and that he had been

“away from [his family] without being able to provide for them, provide for them [with] overall

love and support.” Defendant’s presentence report stated that he “does not seem to contribute

financially to support his family as he indicates his paychecks are often spent on illicit

substances.”

¶ 26 The trial court began by commending defendant for “thinking about *** how your

actions have had an impact not only upon your own life but the life of your family in

particular[.]” The court stated that by defendant’s “own admission, at least for the last several

years when you were full-time employed, it was your wife who was supporting financially the

family’s needs and expenses while you were taking the money that you were earning and

selfishly spending it on yourself.” The court stated that “part of accepting the blame or taking

- 13 - responsibility, however, is being aware that consequences flow from those actions[.]”

¶ 27 The trial court also stated that defendant had significant rehabilitative potential

because he took advantage of opportunities while in custody. The court stated that defendant had

become a “role model” for other prisoners because he adhered to the rules and regulations of the

facility and completed life skills and job training.

¶ 28 The trial court stated that defendant’s “prior [criminal] history *** is a factor

which the Court can and is taking into consideration along with *** all the factors in aggravation

and mitigation.” To this point, the court explained as follows:

“But with your previous criminal history and the fact that you have been to prison

not just on two previous occasions but for fairly lengthy periods of time, 12 years

on the first offense in ‘97, and then 10 years on the second offense arising out of

the incident in 2007. And so, when someone appears in court again for a serious

felony, that, to me, is one of the reasons why the Court is allowed to look at one’s

history of prior delinquency and criminal activity, and also to look at whether or

not a sentence is necessary to deter others from committing the same type of a

crime, which is [why] there needs to be increasing responsibility. There needs to

be an increase in the punishment which is imposed because if there’s not an

increase in general, not all the time, then one is rewarded for their behavior. Not

only is one rewarded for their bad behavior but the message that is sent to others

is not one of deterrence, it is one of roll the dice because good things might and/or

could happen to you so long as you take responsibility for your actions. So I’m

saying it’s a balancing act.”

¶ 29 Ultimately, the trial court (1) sentenced defendant to 16 years in prison,

- 14 - (2) granted him 673 days credit for time already served, (3) imposed a $2250 fine, and

(4) recommended defendant for substance abuse treatment. In reaching this conclusion, the court

reasoned as follows:

“I’m not going to impose the 20 years that [the State] requested, but the

reason I’m not going to impose the 20 years is primarily based upon the fact that I

do see the rehabilitative potential in yourself. The opportunity for you to continue

to atone for your mistakes, for your transgressions, for your actions, and get you

back to your family and hopefully get you back to your family in a sense where

you can not only be there for them as a husband and a father, but also as one

who’s able to financially support that family as well.”

¶ 30 This appeal followed.

¶ 31 II. ANALYSIS

¶ 32 Defendant appeals, arguing (1) the trial court should have granted his motion to

suppress because the police prolonged the traffic stop beyond the time necessary to complete the

mission of the stop, (2) the trial court’s sentence was an abuse of discretion, and (3) the trial

court “imposed a trial tax.” We address these issues in turn.

¶ 33 A. The Motion To Suppress

¶ 34 Defendant argues that the trial court should have granted his motion to suppress

because the police prolonged the traffic stop beyond the time necessary to complete the mission

of the stop. We disagree.

¶ 35 1. The Applicable Law

¶ 36 Both the United States Constitution and the Illinois Constitution proscribe

unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. A traffic

- 15 - stop entails the seizure of the driver. People v. Harris, 228 Ill. 2d 222, 231, 886 N.E.2d 947, 954

(2008). In determining whether a traffic stop was an unreasonable seizure, a court must consider

the following questions: (1) Was the initial traffic stop lawful? (2) Assuming the initial stop to be

lawful, was the stop prolonged beyond the time necessary to complete the mission of the stop?

(3) Assuming it was so prolonged, was the continued detention of the defendant supported by a

reasonable suspicion? People v. Sadeq, 2018 IL App (4th) 160105, ¶ 56.

¶ 37 In this case, defendant concedes that the initial traffic stop was valid.

Furthermore, the State does not argue that the police had reasonable suspicion to justify the

continued detention of defendant. Accordingly, the sole issue is whether the stop was

unreasonably prolonged beyond the time necessary to complete the mission of the stop. See id.

¶ 56.

¶ 38 In determining whether a stop was impermissibly prolonged, a court “must first

decide when the stop began.” (Internal quotation marks omitted.) Id. ¶ 63. “A lawful roadside

stop begins when a vehicle is pulled over for investigation of a traffic violation.” Arizona v.

Johnson, 555 U.S. 323, 333 (2009). “Generally, a [valid] traffic stop ends when the paperwork of

the driver and any passengers has been returned to them and the purpose of the stop has been

resolved.” People v. Leach, 2011 IL App (4th) 100542, ¶ 12, 959 N.E.2d 680.

¶ 39 A traffic stop has been prolonged beyond the time necessary to complete the

mission of the stop “when tasks tied to the traffic infraction are—or reasonably should have

been—completed.” Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1614 (2015).

“[A] traffic stop prolonged beyond that point is unlawful.” (Internal quotation marks omitted.)

Id. at ___, 135 S. Ct. at 1615. “A traffic stop is analogous to a Terry stop, and its permissible

duration is determined by the seizure’s mission.” People v. Cummings, 2016 IL 115769, ¶ 13, 46

- 16 - N.E.3d 248 (citing Terry v. Ohio, 392 U.S. 1 (1968)). The seizure’s mission includes

(1) addressing the traffic violation that warranted the stop and (2) related safety concerns.

Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. “In a traffic stop, the officer’s mission is to check

the driver’s license, find out if there are any warrants against the driver, inspect the automobile’s

registration and proof of insurance, and decide whether to issue a ticket.” People v. Thomas,

2018 IL App (4th) 170440, ¶ 68, 115 N.E.3d 325.

¶ 40 “An officer’s inquires into matters unrelated to the justification for the traffic stop

*** do not convert the encounter into something other than a lawful seizure, so long as those

inquiries do not measurably extend the duration of the stop.” Johnson, 555 U.S. at 333; see also

People v. Litwin, 2015 IL App (3d) 140429, ¶ 36, 40 N.E.3d 784. “An officer, in other words,

may conduct certain unrelated checks during an otherwise lawful traffic stop” but “he may not

do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to

justify detaining an individual.” Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615. “The critical

question, then, is not whether [a matter unrelated to the traffic stop] occurs before or after the

officer issues a ticket *** but whether conducting [those activities] prolongs—i.e., adds time

to—the stop ***.” (Internal quotation marks omitted.) Id. at 1616. Accordingly, there is a “bright

line against prolonging a stop with inquiries outside the mission of a traffic stop, unless an

officer has reasonable suspicion for those inquiries.” Cummings, 2016 IL 115769, ¶ 7; see also

David J. Robinson, A Sniff Too Far: No Dog Sniffs After Completed Traffic Stops, 103 Ill. B.J.

42, 45 (2015). If the traffic stop has been prolonged, a defendant’s subsequent consent to a

search may be “tainted” by the unlawful detention. People v. Al Burei, 404 Ill. App. 3d 558, 566,

937 N.E.2d 297, 304 (2010).

¶ 41 “Determination of whether a traffic stop was unduly prolonged requires an

- 17 - analysis of a totality of the circumstances.” People v. Reedy, 2015 IL App (3d) 130955, ¶ 27, 39

N.E.3d 318; see also People v. Baldwin, 388 Ill. App. 3d 1028, 1034, 904 N.E.2d 1193, 1199

(2009). “Among the circumstances considered are the brevity of the stop and whether the police

acted diligently during the stop.” Reedy, 2015 IL App (3d) 130955, ¶ 27. Courts also consider

“the nature of the offense and the ordinary inquiries incident to the stop.” People v. Wofford,

2012 IL App (5th) 100138, ¶ 27, 969 N.E.2d 383. If the stop was prolonged, the continued

detention of the defendant may be justified “if the officer discovers specific, articulable facts

which give rise to a reasonable suspicion that the defendant has committed, or is about to

commit, a crime.” (Internal quotation marks omitted.) Baldwin, 388 Ill. App. 3d at 1035; see also

Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615.

¶ 42 In People v. Pulido, 2017 IL App (3d) 150215, ¶ 14, 83 N.E.3d 1111, Trooper

Korando pulled over the defendant’s vehicle for speeding. While Korando was speaking with the

defendant, Trooper Degraff arrived on the scene with Rico—his drug-sniffing canine. Id. ¶ 15.

While Korando spoke with the defendant and addressed matters related to the traffic stop,

Degraff conducted a free air sniff with his canine. Id. ¶ 17. As a result of the free air sniff,

methamphetamine was eventually found inside of the defendant’s vehicle. Id. ¶ 26. Although his

conviction was reversed on other grounds, the Third District concluded that “[b]ecause the sniff

occurred while Korando was still performing the duties related to the initial purpose of the stop,

we find the sniff did not impermissibly prolong the encounter.” Id. ¶ 38. In reaching this

conclusion, the court reasoned as follows:

“Here, Korando pulled defendant over for speeding. After obtaining

defendant’s information, Korando and defendant returned to Korando’s squad car

so that Korando could run the information through LEADS and write defendant a

- 18 - warning. Before Korando finished writing defendant a warning and receiving the

confirmation from LEADS, Degraff arrived on the scene and conducted the free-

air sniff. After Rico alerted on the vehicle, Korando was informed by radio that

defendant’s LEADS check was clear. A free-air sniff conducted during a lawful

traffic stop does not violate the fourth amendment, as long as it is done, as it was

here, within the time reasonably required to complete the mission of the initial

traffic stop.” Id. ¶ 41.

¶ 43 2. The Standard of Review

¶ 44 When reviewing a motion to suppress, the appellate court applies a bifurcated

standard of review. Sadeq, 2018 IL App (4th) 160105, ¶ 49. The trial court’s findings of fact are

entitled to great deference, and a reviewing court will reverse those findings only if they are

against the manifest weight of the evidence. People v. Heritsch, 2017 IL App (2d) 151157, ¶ 8,

98 N.E.3d 420. The ultimate decision of whether the evidence should be suppressed, however, is

reviewed de novo. People v. West, 2017 IL App (3d) 130802, ¶ 19, 76 N.E.3d 60.

¶ 45 3. This Case

¶ 46 At the suppression hearing, Officer Klein stated that he pulled over defendant’s

taxicab at approximately 2:10 p.m. Klein noted that he had to (1) obtain identification from

defendant and his passenger, (2) check whether defendant had a valid driver’s license, (3) check

whether defendant had car insurance, (4) determine whether there were any active warrants for

defendant or his passenger, and (5) fill out paperwork related to the traffic stop. Klein stated that

while he was performing these activities, Officer Johnson arrived on the scene at approximately

2:18 p.m. Klein testified that he did not assist Johnson until he saw him place defendant under

arrest—which was at approximately 2:20 p.m. Klein confirmed that prior to assisting with the

- 19 - arrest, he was “just doing paperwork” which was related to the traffic stop. Klein clarified that he

“hadn’t even fully completed the written warning” when defendant was placed under arrest.

¶ 47 Johnson testified that, at approximately 2:19 p.m., he searched defendant’s

person. Johnson stated that Klein was “[s]till in the driver’s seat of his squad car” and was doing

“paperwork” during the search. Johnson stated that Klein was not assisting “in any form or

fashion” until defendant was placed under arrest. Johnson stated that he arrested defendant at

approximately 2:20 p.m.

¶ 48 Based upon this record and the trial court’s findings, we conclude that the officers

did not prolong the stop beyond the time necessary to complete the mission of the stop. See

Pulido, 2017 IL App (3d) 150215, ¶ 41 (concluding the stop was not prolonged when one officer

worked only on matters related to the traffic stop while another officer conducted a “free-air”

sniff).

¶ 49 The stop began at approximately 2:10 p.m. when Klein pulled over defendant’s

vehicle. At approximately 2:19 p.m., Klein was diligently working on matters related to the

traffic stop while Johnson questioned and searched defendant. The record contains no evidence

to suggest that Klein delayed or otherwise hindered his efforts so that other officers could

investigate matters unrelated to the traffic stop. Moreover, at the time that Johnson searched

defendant, Klein was still carefully working on matters related to the traffic stop while in his

squad car. Thus, we conclude that the police did not prolong the stop because (1) the tasks tied to

the traffic infraction were not completed at the time of the search and (2) the search was

conducted within the time reasonably required to complete the mission of the initial traffic stop.

Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1616; Pulido, 2017 IL App (3d) 150215, ¶ 41.

Accordingly, we affirm the trial court’s denial of defendant’s motion to suppress.

- 20 - ¶ 50 B. Defendant’s Sentence

¶ 51 Defendant next argues that the trial court’s sentence was an abuse of discretion.

Specifically, although he concedes that his sentence was within the statutory framework

provided by the legislature, defendant argues that “the judge employed a personal sentencing

policy in the guise of deterrence, he misinterpreted two mitigating factors as aggravating, [and]

there was no evidence that this particular offense resulted in harm to anyone aside from

himself[.]” We disagree.

¶ 52 1. The Applicable Law

¶ 53 “All 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 trial court has broad discretionary powers when selecting an appropriate sentence.”

People v. Garcia, 2018 IL App (4th) 170339, ¶ 37, 99 N.E.3d 571.

¶ 54 The Unified Code of Corrections (Unified Code) (730 ILCS 5/1-1-1 et seq. (West

2016)) sets forth mitigating and aggravating factors that the trial court must consider when

determining an appropriate sentence. People v. Brunner, 2012 IL App (4th) 100708, ¶¶ 43-45,

976 N.E.2d 27. A defendant’s “history of prior delinquency or criminal activity” and the need “to

deter others from committing the same crime” are aggravating factors. 730 ILCS 5/5-5-3.2(a)(3),

(7) (West 2016). It is a mitigating factor if a “defendant’s criminal conduct neither caused nor

threatened serious physical harm to another.” Id. § 5-5-3.1(a)(1). Likewise, it is a mitigating

factor if “[t]he imprisonment of the defendant would entail excessive hardship to his

dependents.” Id. § 5-5-3.1(a)(11).

¶ 55 A trial court abuses its discretion when it considers an improper factor in

aggravation. People v. Minter, 2015 IL App (1st) 120958, ¶ 147, 37 N.E.3d 238. Likewise, the

- 21 - trial court may not have a personal sentencing policy that fails to conform to the standards of the

Unified Code. See People v. Bolyard, 61 Ill. 2d 583, 586-87, 338 N.E.2d 168, 169-70 (1975);

People v. Clemons, 175 Ill. App. 3d 7, 13, 529 N.E.2d 577, 581 (1988). Whether the trial court

relied upon an improper factor during sentencing is a question of law reviewed de novo. People

v. Arbuckle, 2016 IL App (3d) 121014-B, ¶ 39, 60 N.E.3d 185. Nonetheless, there is a strong

presumption that the trial court’s sentence was based on proper legal reasoning, and a reviewing

court should consider the record as a whole rather than a few isolated statements. People v.

Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22, 979 N.E.2d 1014. A defendant bears the

burden to affirmatively establish that his sentence was based on an improper factor. People v.

Williams, 2018 IL App (4th) 150759, ¶ 18, 99 N.E.3d 590.

¶ 56 “The weight to be given to any proper factor, however, is left to the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.”

(Emphasis in original.) People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 104. The appellate

court may not substitute its judgment for that of the trial court merely because it would have

weighed these factors differently. People v. Wilson, 2016 IL App (1st) 141063, ¶ 11, 65 N.E.3d

419. Further, a reviewing court presumes that a sentence imposed within the statutory range

provided by the legislature is proper. People v. Charleston, 2018 IL App (1st) 161323, ¶ 16. A

trial court’s sentence is an abuse of discretion if it is greatly at odds with the spirit and purpose of

the law or is manifestly disproportionate to the nature of the offense. People v. Geiger, 2012 IL

113181, ¶ 27, 978 N.E.2d 1061. The trial court’s sentence is entitled to “great deference because

the trial court is in the best position to consider the defendant’s credibility, demeanor, general

moral character, mentality, social environment, habits, and age.” People v. Etherton, 2017 IL

App (5th) 140427, ¶ 15, 82 N.E.3d 693.

- 22 - ¶ 57 2. This Case

¶ 58 Defendant was convicted of unlawful possession of a controlled substance in that

he knowingly and unlawfully possessed more than 15 grams but less than 100 grams of a

substance containing cocaine. 720 ILCS 570/402(a)(2)(A) (West 2014). The parties agree—both

before the trial court and this court—that defendant’s permissible sentence ranged from a 6-year

minimum to a 30-year maximum. 730 ILCS 5/5-5-3.2(b)(1) (West 2016). At trial, the State

recommended a 20-year sentence while defense counsel requested a sentence “in the range” of 6

to 10 years. The trial court, after carefully considering defendant’s rehabilitative potential and his

prior criminal history, sentenced defendant to 16 years in prison.

¶ 59 Defendant argues that there was “overwhelming” mitigating evidence.

Specifically, defendant argues that he “purchased cocaine for himself to feed an addiction” and

that his actions did not harm others. See id. § 5-5-3.1(a)(1) (it is a mitigating factor if a

“defendant’s criminal conduct neither caused nor threatened serious physical harm to another”).

Likewise, defendant argues that his sentence would cause hardship to his dependents. See id. § 5-

5-3.1(a)(11) (it is a mitigating factor if “imprisonment of the defendant would entail excessive

hardship to his dependents”). However, the trial court found that the following aggravating

factors existed: (1) defendant’s prior criminal history and (2) the need to deter others. Id. § 5-5-

3.2(a)(3), (7). This court may not substitute its judgment for that of the trial court merely because

we could have weighed these factors differently. Wilson, 2016 IL App (1st) 141063, ¶ 11.

¶ 60 Likewise, defendant essentially argues that his drug addiction is a mitigating

factor because he committed the offense to “feed an addiction” and that no one else was hurt by

his actions. However, “[u]nder the Unified Code, drug addiction is not an explicit factor in

mitigation or aggravation.” Sturgeon, 2019 IL App (4th) 170035, ¶ 105; see also 730 ILCS 5/5-

- 23 - 5-3.1, 5-5-3.2 (West 2016). Accordingly, “the trial court is not required to view drug addiction as

a mitigating factor.” Sturgeon, 2019 IL App (4th) 170035, ¶ 105; see also People v. Madej, 177

Ill. 2d 116, 139, 685 N.E.2d 908, 920 (1997). “Instead, a history of substance abuse is a ‘double-

edged sword’ that the trial court may view as a mitigating or aggravating factor.” Sturgeon, 2019

IL App (4th) 170035, ¶ 105 (quoting People v. Mertz, 218 Ill. 2d 1, 83, 842 N.E.2d 618, 662

(2005)). To that point, “the court could have properly concluded that defendant’s drug addiction

lessened his rehabilitative potential, increased the seriousness of the offense, increased the need

to protect society, and increased the need for deterrence.” Id. ¶ 108. Accordingly, this argument

fails to demonstrate that the trial court abused its discretion.

¶ 61 Defendant further argues that the trial court “had a policy of imposing a longer

sentence each time a defendant was convicted, notwithstanding other factors such as the nature

of the offense and other factors in a defendant’s life.” This argument is based upon the following

portion of the record:

“But with your previous criminal history and the fact that you have been to prison

not just on two previous occasions but for fairly lengthy periods of time, 12 years

on the first offense in ‘97, and then 10 years on the second offense arising out of

the incident in 2007. And so, when someone appears in court again for a serious

felony, that, to me, is one of the reasons why the Court is allowed to look at one’s

history of prior delinquency and criminal activity, and also to look at whether or

not a sentence is necessary to deter others from committing the same type of a

crime, which is [why] there needs to be increasing responsibility. There needs to

be an increase in the punishment which is imposed because if there’s not an

increase in general, not all the time, then one is rewarded for their behavior. Not

- 24 - only is one rewarded for their bad behavior but the message that is sent to others

is not one of deterrence, it is one of roll the dice because good things might and/or

could happen to you so long as you take responsibility for your actions. So I’m

saying it’s a balancing act.” (Emphasis added.)

¶ 62 When the trial court’s statements are viewed within the proper context, we

conclude that the trial court did not have an impermissible sentencing policy. See People v. Scott,

2015 IL App (4th) 130222, ¶¶ 48-49, 25 N.E.3d 1257 (the trial court’s statement that a minimum

sentence “ ‘is basically reserved for individuals who either haven’t been to the Department of

Corrections’ ” or who “ ‘don’t have as much of a previous criminal history as [the defendant]’ ”

was not an improper sentencing policy. (Emphasis omitted.) Instead, when the statements were

viewed in the proper context, the trial court “was merely commenting on the effect of

defendant’s criminal history—a factor explicitly listed in the Unified Code of Corrections as a

potential reason for extending a defendant’s sentence.”). Here, as the Unified Code allows, the

court was properly taking into account defendant’s prior criminal history and the need for

deterrence. 730 ILCS 5/5-5-3.2(a)(3), (7) (West 2016); see also Scott, 2015 IL App (4th) 130222,

¶¶ 48-49.

¶ 63 Defendant also argues that the trial court “misinterpreted” his statement of

allocution to his “detriment.” In his statement of allocution, defendant stated that he was “truly

good” to his family and supported his children “first and foremost.” However, defendant

conceded that the rest of his money “went to [his] habits and addictions” and that his “savings,

tips, and extra money” were used to purchase drugs. He stated that he had “sinned against [his]

family” and that he had been “away from [his family] without being able to provide for them,

provide for them [with] overall love and support.” Defendant’s presentence report stated that

- 25 - defendant “does not seem to contribute financially to support his family as he indicates his

paychecks are often spent on illicit substances.”

¶ 64 When sentencing defendant, the trial court began by commending defendant for

“thinking about *** how your actions have had an impact not only upon your own life but the

life of your family in particular[.]” The court stated that by defendant’s “own admission, at least

for the last several years when you were full-time employed, it was your wife who was

supporting financially the family’s needs and expenses while you were taking the money that

you were earning and selfishly spending it on yourself.” We note that based on defendant’s drug

addiction and the presentence report, the court’s statement is supported by the record.

Regardless, defendant fails to demonstrate that the trial court’s sentence was an abuse of

discretion based on this isolated statement.

¶ 65 In sum, we conclude that the trial court’s sentence was not an abuse of discretion.

First, we presume that defendant’s sentence is proper because it was within the statutory

framework provided by the legislature. See Charleston, 2018 IL App (1st) 161323, ¶ 16; 720

ILCS 570/402(a)(2)(A) (West 2014). Second, the trial court—rather than this court—was in the

“best position to consider the defendant’s credibility, demeanor, general moral character,

mentality, social environment, habits, and age.” Etherton, 2017 IL App (5th) 140427, ¶ 15. To

that point, the trial court carefully considered defendant’s rehabilitative potential and weighed

this against his past criminal history. Third, the trial court’s imposition of a 16-year sentence was

not greatly at odds with “the spirit and purpose of the law” nor was it manifestly disproportionate

to the nature of the offense. Sturgeon, 2019 IL App (4th) 170035, ¶ 104. Finally, when the record

is reviewed as a whole, defendant fails to demonstrate that the trial court relied upon an improper

aggravating factor or that the court had an improper personal sentencing policy. See Canizalez-

- 26 - Cardena, 2012 IL App (4th) 110720, ¶ 22; Scott, 2015 IL App (4th) 130222, ¶¶ 48-49.

¶ 66 C. The “Trial Tax”

¶ 67 Last, defendant argues that the trial court imposed a “trial tax” when defendant

rejected the State’s plea offer and proceeded to a stipulated bench trial. Specifically, defendant

notes that the State “was willing to recommend a 13-year sentence in exchange for a plea to the

higher class felony of possession with intent to deliver, but requested a 20-year sentence after

dropping the more serious charge and proceeding on the simple possession charge by way of a

stipulated bench trial[.]” Defendant argues that even though “the trial court did not explicitly

approve of this plea agreement before it was rejected, the court gave no indication that it felt

thirteen years of imprisonment for a greater felony was an inappropriate sentence. In fact, it

conveyed the message that the agreement would be approved[.]” (Emphasis in original.)

Accordingly, defendant argues that the “three year increase in the sentence imposed for a lower

class felony after a stipulated bench trial *** is strong evidence that the court imposed a trial

tax.” (Emphasis in original.) We reject defendant’s argument.

¶ 68 1. The Applicable Law

¶ 69 “A trial court may not punish a defendant for exercising his right to a trial.”

Sturgeon, 2019 IL App (4th) 170035, ¶ 113. However, it must be “clearly evident” that a harsher

sentence resulted from a defendant’s demand for a trial. People v. Jones-Beard, 2019 IL App

(1st) 162005, ¶ 26. “This evidence can come when a trial court makes explicit remarks

concerning the harsher sentence [citations], or where the actual sentence is outrageously higher

than the one offered during plea negotiations [citation].” Id. Nevertheless, “the mere fact that the

defendant was given a greater sentence than that offered during plea bargaining does not, in and

of itself, support an inference that the greater sentence was imposed as a punishment for

- 27 - demanding trial.” People v. Carroll, 260 Ill. App. 3d 319, 348, 631 N.E.2d 1155, 1174 (1992).

“In determining whether it is clearly evident that a harsher sentence resulted from a defendant’s

demand for a trial, the appellate court considers the record as a whole instead of focusing on

isolated statements made by the trial court.” Sturgeon, 2019 IL App (4th) 170035, ¶ 113.

¶ 70 In People v. Johnson, 2018 IL App (1st) 153634, ¶ 19, 107 N.E.3d 333, the

defendant rejected a 13-year plea offer and was ultimately sentenced to 16 years in prison. On

appeal, the defendant argued that the trial court “punished” him for rejecting the plea offer and

exercising his right to a trial. Id. ¶ 17. The First District rejected this argument and reasoned as

“The 16-year sentence is not markedly longer than the rejected 13-year

offer. So this is not a case like People v. Dennis, 28 Ill. App. 3d 74, 78[, 328

N.E.2d 135] (1975), where the defendant rejected an offer of 2 to 6 years and

received a sentence of 40 to 80 years after trial and ‘there [was] nothing in the

record to indicate why the court found appropriate the imposition of an extremely

harsh sentence after [Dennis’s] jury trial.’ The Dennis court, which based its

ruling on the disparity and the absence of justification, limited its holding to its

unusual facts. Id.

Nor is this a case like People v. Young, 20 Ill. App. 3d 891, 894[, 314

N.E.2d 280] (1974), where the defendant rejected a two- to five-year offer and

was sentenced to three to nine years of imprisonment, which the trial court

justified by stating, ‘ “you shot the dice and they just came up craps.” ’ Or People

v. Moriarty, 25 Ill. 2d 565, 567[, 185 N.E.2d 688] (1962), where the trial judge

- 28 - linked the increased sentence to the rejected offer by stating that the defendant’s

rejection of a plea deal ‘ “will cost you nine years additional.’ ”

Here, the trial court stated that the additional detail heard at trial,

pertaining to the ‘planned nature’ of the crime, justified the increase. Johnson

contends this statement is pretextual, and the State’s proffer during the Rule 402

conference and the trial evidence were essentially identical. But the State’s bare-

bones description of the crime did not include evidence of premeditation. The trial

evidence (including Johnson’s statement to police and the surveillance video)

illuminated that this armed robbery was not a spur-of-the-moment decision but,

rather, a planned escapade where each participant had a defined role. On this

record, it is not ‘clearly evident’ that the 16-year sentence in any way served as

punishment for rejection of the plea offer.” Id. ¶¶ 19-21.

¶ 71 In Sturgeon, 2019 IL App (4th) 170035, ¶ 116, the defendant rejected a plea offer

that included a 25-year prison sentence. During a Rule 402 (Ill. S. Ct. 402 (eff. July 1, 2012))

conference, the trial court stated that, based on the defendant’s criminal history and nature of the

charges, it was “ ‘more inclined to sentence [defendant] in the extended term range of at least 30

years, if not more.’ ” Id. Ultimately, defendant rejected the plea offer and the trial court

sentenced him to 45 years in prison after he was found guilty at his trial. Id. On appeal, the

defendant argued that the trial court “improperly punished” him for proceeding to trial. Id. ¶ 111.

This court disagreed, concluding that it was not clearly evident that the court imposed a harsher

sentence because (1) “[t]he phrase ‘if not more’ certainly includes the trial court’s ultimate

sentence of 45 years” and (2) the defendant failed “to cite to any other statement which could

establish that the trial court punished him for exercising his right to a trial.” Id. ¶ 117.

- 29 - ¶ 72 In People v. Wheeler, 2019 IL App (4th) 160937, ¶ 6, the State made the

defendant a plea offer which included a 38-year prison sentence. Defendant rejected this offer

and proceeded to trial. Id. After the jury found him guilty, the trial court sentenced defendant to a

90-year prison sentence. Id. ¶ 30. On appeal, the defendant argued that “ ‘[i]f the State thought

that a [de facto] life sentence was necessary to protect the public, it would not have offered to

accept a plea in exchange for a 38-year sentence.’ ” Id. ¶ 50. This court, noting the difficulties

and uncertainties associated with proceeding to trial, concluded that “it was entirely appropriate

for the State to first offer a 38-year sentence during plea negotiations and then to later request a

90-year sentence following defendant’s conviction at trial.” Id. ¶ 52; see also Brady v. United

States, 397 U.S. 742, 752 (1970) (noting that guilty pleas are “motivated at least in part by the

hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a

trial to judge or jury”).

¶ 73 2. This Case

¶ 74 In this case, the State and defense counsel presented the trial court with a

proposed plea agreement. Pursuant to this proposed agreement, defendant would (1) plead guilty

to count I (unlawful possession with intent to deliver), (2) receive a 13-year prison sentence,

(3) receive credit for 525 days he had spent in pretrial custody, and (4) pay a $2000 fine. Further,

the State would have dismissed count II (unlawful possession of a controlled substance).

Defendant rejected the proposed agreement and proceeded to trial.

¶ 75 In October 2016, the trial court conducted a stipulated bench trial. The State

dismissed count I (unlawful possession with intent to deliver) and proceeded on count II

(unlawful possession). 720 ILCS 570/401(a)(2)(A), 402(a)(2)(A) (West 2014). The State and

defendant agreed to an evidence stipulation, although defendant did not concede that this

- 30 - stipulation would be sufficient to find him guilty beyond a reasonable doubt. Following this

stipulation, the court found defendant guilty of count II (unlawful possession of a controlled

substance). Id. § 402(a)(2)(A). The court later sentenced defendant to 16 years in prison.

¶ 76 We view this case as strikingly similar to Johnson, 2018 IL App (1st) 153634,

¶¶ 19-21, and conclude that defendant’s “16-year sentence is not markedly longer than the

rejected 13-year offer[.]” Further, “it is not ‘clearly evident’ that the 16-year sentence in any way

served as punishment for rejection of the plea offer.” Id. ¶ 21. Defendant also fails to cite to any

statement in the record that could indicate that the trial court punished him for rejecting the offer

and proceeding to trial. See Sturgeon, 2019 IL App (4th) 170035, ¶ 117. Finally, there was

nothing improper about the State offering a 13-year prison sentence during plea negotiations and

later requesting a 20-year sentence following a stipulated bench trial. Wheeler, 2019 IL App

(4th) 160937, ¶ 52. Accordingly, we conclude that it is not “clearly evident” that the trial court

punished defendant for rejecting a plea agreement and proceeding to trial. Jones-Beard, 2019 IL

App (1st) 162005, ¶ 26.

¶ 77 3. The “Trial Tax” and the “Pre-Flight Checklist”

¶ 78 We are aware that this court recently suggested that trial courts should go through

a “preflight checklist” in felony cases before starting a trial. See People v. Williams, 2016 IL

App (4th) 140502, ¶¶ 35-39, 54 N.E.3d 934. When doing so, a trial court, of necessity, needs to

be informed by the parties of any plea offers made by the State in order to ensure that any such

offer was in fact communicated to the defendant personally. However, given our earlier

discussion about plea bargaining, we see no reason why a trial court should give any

consideration to the State’s plea offer when (1) the defendant has rejected that offer and (2) the

court is called upon to sentence the defendant after he has been convicted at trial.

- 31 - ¶ 79 For an explanation of the policy as to why this is so, a discussion of settlement

negotiations in a civil case might prove helpful.

¶ 80 a. The Claim of a “Trial Tax” in Civil Cases

¶ 81 Imagine a medical malpractice case in which the plaintiff asserts that she was

seriously injured because defendant hospital’s medical staff breached the appropriate standard of

care when treating her.

¶ 82 The parties aren’t able to settle, and before the case goes to jury trial, plaintiff’s

last demand was $600,000, and the hospital’s last offer was $200,000. The parties inform the

trial court of their respective last positions.

¶ 83 At trial, plaintiff argues the jury should award her damages of $1,000,000, and the

jury ultimately agrees. The hospital files a post-trial motion for remittitur, arguing that the

damages are excessive and should be reduced to $600,000, claiming that plaintiff’s $600,000

demand obviously represents all that plaintiff thought the case was worth because plaintiff was

willing to settle for that amount before trial. Further, the hospital argues that it had a right to trial

on the contested issue of liability, and if the court permitted the $1,000,000 award to stand, doing

so would amount to an improper “trial tax” on the hospital’s exercise of its right to trial.

¶ 84 The obvious flaw in the hospital’s argument is its claim that plaintiff’s $600,000

demand to settle represented “what plaintiff really thought the case was worth.” Instead, that

figure represented what plaintiff was willing to accept without the risk of going to trial and

perhaps getting nothing. Plaintiff’s willingness to settle the case for $600,000 before trial

represented plaintiff’s real-world assessment that certainty about what a jury will do does not

exist.

¶ 85 b. The Claim of a “Trial Tax” in Criminal Cases

- 32 - ¶ 86 The above analysis applies to criminal cases as well as civil cases as long as the

trial court is not involved in the plea bargaining process. (And, we add, the trial court should not

be involved in the plea bargaining process. See Sturgeon, 2019 IL App (4th) 170035, ¶ 118

(“Rule 402(d) permits but does not require trial courts to engage in such conferences, and many

experienced trial judges refuse to engage in such conferences because those judges deem them

both unseemly and unnecessary.” (Emphases in original.))).

¶ 87 In a criminal case, the State is the plaintiff, occupying a position similar to the

civil plaintiff in the medical malpractice action. The default position in a criminal case, just like

in a civil case, is for the matter to be resolved by trial, either before a jury or the court. However,

in the overwhelming majority of criminal cases (just like in civil cases), the parties engage in

negotiations to see if an agreement can be reached short of a trial.

¶ 88 Thus, imagine a criminal case in which the defendant is charged with armed

robbery (a non-probationable Class X felony carrying a sentencing range of 6 to 30 years). The

State might agree to a sentence of 12 years if the defendant pleads guilty, based upon the

prosecutor’s belief that the State’s case may not contain enough persuasive evidence of

defendant’s guilt to overcome his family’s alibi testimony. When making this offer to the

defendant, the State is aware of his three prior felony convictions and that if the defendant is

convicted, the State will seek—and the court may likely impose—a much greater sentence.

¶ 89 Assume that the defendant is fully aware of these same concerns and has

discussed the matter with his counsel. After doing so, the defendant turns down the State’s offer,

and the case goes to trial.

¶ 90 The jury disbelieves the defendant’s alibi witnesses and concludes that the State

has proved the defendant guilty beyond a reasonable doubt. At the sentencing hearing, the trial

- 33 - court learns of the defendant’s three prior felony convictions, and the prosecutor asks the court to

impose a sentence of 28 years.

¶ 91 Defense counsel objects, arguing that the State’s recommendation is punitive and

unfair, especially given that the State in its plea bargaining had earlier indicated that this crime

was worth only a 12-year sentence. Defense counsel further argues that the defendant had the

right to a jury trial to determine whether the State could meet its burden of proof, and if the trial

court were to impose the 28-year sentence the State asks for, doing so would amount to an

improper “trial tax” on the defendant’s exercise of his right to trial.

¶ 92 Is this argument any different from the hospital’s argument in the civil case

described earlier? Or does it have any more merit? The answer to both of these questions is

emphatically no.

¶ 93 A trial court’s deeming the prosecutor’s argument for a greater sentence after trial

as a “trial tax” is clearly wrong. The prosecutor during plea negotiations is merely offering to

settle the case for what the prosecutor thinks is the least he or she can accept, given, among other

factors, the strength of the State’s case and the defendant’s record. The prosecutor’s asking for a

greater sentence after trial is no more a “trial tax” than is the jury’s award of $1,000,000 in

damages in the medical malpractice case after the hospital turned down the plaintiff’s $600,000

offer to settle.

¶ 94 III. CONCLUSION

¶ 95 For the reasons stated, we affirm defendant’s conviction. As a part of our

judgment, we award the State its $75 statutory assessment against defendant as costs of this

appeal. 55 ILCS 5/4-2002(a) (West 2016).

¶ 96 Affirmed.

- 34 - ¶ 97 JUSTICE TURNER, specially concurring.

¶ 98 Although I agree this court should affirm the trial court’s judgment, I write

separately to express my unwillingness to participate in paragraphs 77 through 93 of the

majority’s opinion. I find the discussion in those paragraphs unnecessary given the majority’s

analysis in paragraphs 68 through 76.

- 35 -