People v. Nischwitz

2022 IL App (3d) 190067-U

• Court: Appellate Court of Illinois
• Decided: January 11, 2022
• Docket: 3-19-0067
• Status: Unpublished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) 190067-U

Order filed January 11, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) Appeal Nos. 3-19-0067 and 3-19-0068 v. ) Circuit Nos. 17-CF-303 and ) 17-CF-388 ) EDMOND P. NISCHWITZ, ) Honorable ) Michael D. Risinger, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE DAUGHERITY delivered the judgment of the court. Justices Holdridge and McDade concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Defendant’s sentence was not excessive.

¶2 Defendant, Edmond P. Nischwitz, appeals from his convictions for aggravated assault

and aggravated battery. Defendant argues that his sentence is excessive in that the Tazewell

County circuit court: (1) improperly considered defendant’s mental illness as an aggravating

factor, and (2) failed to consider the seriousness of defendant’s crimes. We affirm.

¶3 I. BACKGROUND ¶4 On July 20, 2017, defendant was charged with aggravated assault, a Class 4 felony. See

720 ILCS 5/12-2(b)(4.1) (West 2016). While out on bond, defendant committed aggravated

battery, a Class 3 felony, for which he was charged on September 14, 2017. See id. § 12-

3.05(f)(1). On October 19, 2017, defendant underwent a fitness evaluation, where a forensic

psychiatrist found that defendant had bipolar disorder but was fit to stand trial.

¶5 On January 2, 2018, a hearing was held to discuss defendant’s potential participation in

the mental health court program. Under this program, defendant would enter a guilty plea in

mental health court and the court would withhold sentencing. If defendant successfully

completed the program, the case would be closed. The following day, defendant appeared in

mental health court to consent to participate in the program and plead guilty to both charges. The

factual basis for the plea for aggravated assault established that on June 30, 2017, defendant was

in an ambulance being transported to the hospital when he spat at a paramedic. The factual basis

for the plea for aggravated battery established that on August 13, 2017, defendant struck his

brother with a board.

¶6 Defendant was informed of the maximum sentences he faced if he failed to complete the

mental health program. For aggravated assault, defendant was eligible for an extended-term

sentence of up to six years’ imprisonment. 1 For aggravated battery, defendant faced a maximum

of five years’ imprisonment. Since defendant committed the aggravated battery while free on

bond, any prison sentences the court imposed were required to be served consecutively.

¶7 While participating in the mental health program, defendant tested positive for marijuana

several times and was unable to produce the proper number of prescribed medications several

1 Defendant was extended-term eligible because he was previously convicted of a Class 4 felony in 2011. See 730 ILCS 5/5-5-3.2(b)(1) (West 2016). 2 times as well. Defendant was arrested on October 1, 2018, after he failed to appear for court on

two separate occasions. On October 24, 2018, defendant voluntarily withdrew from the mental

health program. Subsequently, the case was set for sentencing.

¶8 At sentencing, the State acknowledged that defendant’s mental health issues should be

considered as a mitigating factor. The State argued in aggravation that defendant had a violent

criminal history, was dangerous, and had failed to complete the mental health program. The State

asked the court to sentence defendant to eight years’ imprisonment. Defense counsel asked the

court to consider defendant for high risk probation, arguing that defendant’s mental health

history was substantial and that the violation in the mental health court program was minor.

Defense counsel argued that defendant would be a good candidate for high risk probation

because defendant’s presentence investigation report (PSI) showed that he was in the very high

risk category to reoffend.

¶9 The recommendation from the PSI stated that a sentence to community supervision

would not be appropriate because defendant had made little progress while in mental health court

and was frequently dishonest.

¶ 10 When sentencing defendant, the court said:

“All right, so having now considered the factual basis taken at the time of the

plea, the [PSI], and the extra materials here that I’ve received today, the history,

character, and attitude of this Defendant, and arguments that have been presented

here today, and also considering the statutory factors of aggravation and

mitigation, I am going to sentence you to prison, because I feel that a sentence of

probation would deprecate the seriousness of these offenses, but more

importantly, I think it would be inconsistent with the ends of justice.

3 We’ve already tried high risk probation. It’s called Mental Health Court.

We’ve already tried to medicate [defendant] out of his problem, and the amazing

thing was, every time he failed, he would spend some time in jail, and by the time

he would come to me after whatever amount of time in jail, he was cleaned up,

looking like a state senator, with the exception of wearing jail clothes, but he was

always so well cleaned up and clearly in his right mind, and as soon as he goes

out the door into freedom, bam.

He is not able to comply with any form of community supervision.”

¶ 11 The court sentenced defendant to consecutive terms of three years’ imprisonment for

aggravated assault and five years’ imprisonment for aggravated battery, followed by one year of

mandatory supervised release.

¶ 12 On January 29, 2019, defendant filed a motion to reconsider sentence, arguing that his

sentence was excessive and that the court failed to properly consider, weigh, or balance all

factors in mitigation and aggravation. At the hearing on defendant’s motion, the court said:

“I said this then. I’ll say it again. Whenever we would sanction

[defendant] for him typically failing to appear and then by the time we would

catch up to him, he ingested some drugs, usually marijuana, he would serve some

time in jail, and during his time in jail he would clean up. He would dry out, you

know. Whatever he was on he would come down from, and he would come to

court; and he would be so well cleaned up and clearly in his right mind. And

whenever he was released, it wouldn’t take long before things unraveled. This is

in spite of him working with our treatment provider and us attempting to work

with him through other classes that we had had ordered, other sessions of

4 treatment. So he’s just totally inappropriate for any form of community

supervision. We couldn’t get anything more tailored to help him than mental

health court.”

The court denied defendant’s motion.

¶ 13 II. ANALYSIS

¶ 14 On appeal, defendant argues that his sentence is excessive where the court improperly

considered an aggravating factor and failed to consider the seriousness of the crimes.

¶ 15 We will not alter a defendant’s sentence absent an abuse of discretion by the circuit court.

People v. Alexander, 239 Ill. 2d 205, 212 (2010). “[A] sentence within statutory limits will be

deemed excessive and the result of an abuse of discretion by the trial court where the sentence is

greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the

nature of the offense.” People v. Stacey, 193 Ill. 2d 203, 210 (2000).

¶ 16 As an initial matter, we note that the statutory range for an extended-term sentence for a

Class 4 felony is three to six years’ imprisonment. See 720 ILCS 5/12-2(b)(4.1) (West 2016);

730 ILCS 5/5-4.5-45 (West 2016). The statutory range for a Class 3 felony is two to five years’

imprisonment. See 720 ILCS 5/12-3.05(f)(1) (West 2016); 730 ILCS 5/5-4.5-40 (West 2016).

Here, the sentences were statutorily required to be served consecutively. See 730 ILCS 5/5-8-

4(d)(9) (West 2016). Defendant’s three-year prison sentence for aggravated assault and

consecutive five-year prison sentence for aggravated battery are within the statutory range for

both offenses and are therefore, presumptively valid. See People v. Sauseda, 2016 IL App (1st)

140134, ¶ 12.

5 ¶ 17 Nonetheless, defendant argues that the circuit court improperly considered defendant’s

mental health as an aggravating factor, rather than as a mitigating factor when determining his

sentence. Mental illness should be weighed as a factor in mitigation where:

“At the time of the offense, the defendant was suffering from a serious mental

illness which, though insufficient to establish the defense of insanity, substantially

affected his or her ability to understand the nature of his or her acts or to conform

his or her conduct to the requirements of the law.” 730 ILCS 5/5-5-3.1(a)(16)

(West 2016).

¶ 18 After reviewing the record, we find that the court did not abuse its discretion by

improperly considering defendant’s mental illness as an aggravating factor. Defendant takes

issue with the court’s comments that defendant was often cleaned up and in his right mind after

spending some time in jail. The court’s remarks at sentencing were in response to defense

counsel’s argument that the court should sentence defendant to high risk probation. The court

explained that defendant was not appropriate for probation because of his failure to complete the

mental health program. At the hearing on defendant’s motion to reconsider sentence, the court’s

remarks echoed its explanation as to why defendant was not appropriate for probation.

¶ 19 Contrary to defendant’s argument, the record reveals that the court did consider

defendant’s mental illness as a factor in mitigation. The court stated that it considered the factual

basis, the PSI, the history, defendant’s character and attitude, the parties’ arguments, and the

statutory factors in aggravation and mitigation when determining defendant’s sentence.

Moreover, both the State and defense counsel stated that defendant’s mental illness was a

statutory factor to be considered in mitigation. “Where mitigating evidence is presented to the

trial court during the sentencing hearing, we may presume that the trial court considered it,

6 absent some indication, other than the sentence itself, to the contrary.” People v. Perkins, 408 Ill.

App. 3d 752, 763 (2011). Although the court did not discuss the statutory factors at length, it is

not required to cite each factor it considered in fashioning a defendant’s sentence. See id.

¶ 20 Defendant also argues that his sentence is excessive because the offenses to which he

pled guilty were relatively minor and did not cause anyone physical harm. We disagree. The

legislature determined that aggravated assault and aggravated battery are serious offenses when it

categorized them as Class 4 and Class 3 felonies, respectively. 720 ILCS 5/12-2(b)(4.1) (West

2016); 730 ILCS 5/5-4.5-45 (West 2016); 720 ILCS 5/12-3.05(f)(1) (West 2016); 730 ILCS 5/5-

4.5-40 (West 2016); see also People v. Sharpe, 216 Ill. 2d 481, 487 (2005) (noting “the

legislature is institutionally better equipped to gauge the seriousness of various offenses”). The

court was aware of the factual basis of each plea and stated that it considered this information in

determining defendant’s sentence. As the record indicates, the court ultimately determined that

sentencing defendant to probation would deprecate the seriousness of the offenses. We find that

defendant’s sentence is neither greatly at variance with the spirit and purpose of the law, nor is it

manifestly disproportionate to the nature of the offenses. See Stacey, 193 Ill. 2d at 210.

Therefore, the circuit court did not abuse its discretion when it sentenced defendant to eight

years’ imprisonment.

¶ 21 III. CONCLUSION

¶ 22 The judgment of the circuit court of Tazewell County is affirmed.

¶ 23 Affirmed.