2020 IL App (4th) 170760-U NOTICE FILED This order was filed under Supreme NO. 4-17-0760 February 7, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County GILBERTO PORTUGUEZ, ) No. 15CF246 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Steigmann and Justice Holder White concurred in the judgment.
ORDER Held: The trial court did not abuse its discretion and considered all relevant factors in aggravation and mitigation when sentencing defendant to six years in the Illinois Department of Corrections.
¶1 In August 2015, as the result of a consensual search of defendant Gilberto
Portuguez’s residence conducted in December 2013, defendant was charged with unlawful
production of cannabis sativa plants (720 ILCS 550/8(d) (West 2012)) in that he knowingly
possessed more than 50 but not more than 200 cannabis plants, a Class 2 felony. Defendant, who
represented himself at trial, was convicted by a jury of the single count. The trial court sentenced
defendant to six years in the Illinois Department of Corrections. Defendant then accepted
representation of counsel for purposes of filing a motion to reconsider his sentence, which was
ultimately denied. ¶2 Defendant appeals his sentence, contending the trial court abused its discretion by
(1) considering unverified criminal history records contained in the presentence investigation
report, (2) relying on unwarranted speculation that defendant intended to sell the cannabis found
at his residence when deciding an appropriate sentence, and (3) failing to consider relevant
mitigating factors in defendant’s favor when fashioning his sentence. We affirm.
¶3 I. BACKGROUND
¶4 Based upon information received by the Livingston County Sheriff’s Department,
an investigator with the sheriff’s office went to defendant’s residence in December 2013 to
conduct a “knock and talk,” wherein the officer sought to engage the resident in a conversation
to determine whether he was willing to consent to a search of the residence. Upon his arrival,
defendant answered the door, acknowledged it was his residence, and ultimately admitted to
growing cannabis, leading the investigator to an elaborate “cannabis grow” in his basement.
¶5 The investigator, who then called for additional deputies, found 53 smaller
cannabis plants in varying stages of growth, along with 58 larger plants at different growth
stages. The growing area, which the investigator described as being “really expensive,”
contained chrome-colored walls to reflect light from “almost like suntanning bulbs,” attached to
timers. There were also “huge Co2 can[n]isters” of carbon dioxide, which were pumped into the
growing areas to accelerate plant growth at various stages. They also found fans and a filtered
ventilation system intended to prevent the smell of cannabis from extending beyond the
basement. Based upon the investigator’s knowledge and experience with “cannabis grows,” these
things were all evidence of an elaborate cannabis production operation for profit.
¶6 As a result, defendant was charged with one count of unlawful production of
cannabis sativa plants, a Class 2 felony, in August 2015. At his initial arraignment, defendant,
-2- who later described himself as a “propera persona” defendant, declined counsel, indicating he
wished to represent himself. By the time of trial in May 2017, defendant had contested the
court’s jurisdiction over him and argued he was not subject to criminal prosecution. Although
present throughout, he did not actively participate in the jury trial and did not testify in his own
behalf.
¶7 The jury was instructed on the offense of unlawful possession of more than 50 but
not more than 200 cannabis sativa plants (Illinois Pattern Jury Instructions, Criminal, Nos. 17.11,
17.12 (4th ed. 2000)), and the two verdict forms referenced unlawful possession of cannabis
sativa plants only. No further mention was made of the actual charge of unlawful production.
The jury returned a verdict of guilty. Defendant was ordered to cooperate with the court services
department in the preparation of a presentence investigation report and remained free on bond
pending sentencing.
¶8 At sentencing in September 2017, the presentence investigation report indicated
defendant, who also went by several aliases, had criminal identification numbers from Texas,
California, Michigan, Georgia, and Florida, in addition to those from Illinois and the Federal
Bureau of Investigation. Defendant denied any arrests associated with Texas, California,
Michigan, and Georgia. At the time the presentence investigation was being conducted,
defendant was awaiting trial in Cook County for manufacture/delivery of a controlled substance
(cocaine).
¶9 Known criminal convictions as an adult included unlawful possession of a
controlled substance out of Cook County in December 1983, for which defendant received 2
years of probation; open carry of a weapon, resisting/obstructing without violence out of
Broward County, Florida, in August 1992, for which defendant received 18 days in jail; criminal
-3- drug conspiracy in Will County in March 1998, for which defendant received a 15-year sentence
in the Department of Corrections; two different unlawful possession of controlled substances
cases from Cook County in December 1996, resulting in 18 months of “special” probation and
90 days in jail served concurrently with his 15-year sentence from Will County; another
manufacture/delivery of controlled substances from Cook County in October 1998, with a 6-year
sentence served concurrently with his 15-year sentence from Will County; and unlawful
possession of cannabis from Livingston County in October 2013, for which defendant received 1
year of conditional discharge and 2 days in jail.
¶ 10 A list of nine offenses from Cook County for dates between 1972 through 1996
were noted, which defendant either said he did not recognize or believed were dismissed,
nolle prosequi, or for which he was found not guilty. Four additional offenses were identified
from Florida from 1981, 1988, and 1993, two of which defendant believed were dismissed. None
of the nine Cook County cases or the four Florida cases were verified by court services.
¶ 11 The presentence investigation report also indicated defendant tested positive for
benzodiazepine, heroin, methadone, morphine, and cocaine at his presentence interview on June
6, 2017, approximately one week after being found guilty in this case. Defendant informed the
report writer he bought methadone “off the street,” using between 10-15 milliliters per day for
sciatic nerve pain as well as arthritis in his knees. He acknowledged purchasing illegal
substances for pain management, admitting to cannabis use since his twenties and cocaine usage
since he was 25. He said he started using heroin in his forties and used it daily until 1996, and he
began snorting it in 2012. Defendant admitted the use of these substances continued until within
“a week” or “a couple months” before he was interviewed. As a result, he was requested to
-4- perform a drug test by the probation department when he appeared for sentencing on September
19, 2017; however, he refused.
¶ 12 Defendant admitted the growing of cannabis was both for his pain management
and because it “pays bills.” The report writer noted, when asked by the police at the time of the
search whether he sold the cannabis to make money, defendant told them this was his “first time”
and that he did not get anything out of it because it takes “three months cycles” to get going.
¶ 13 When asked if he had “[a]ny objection to the [presentence] report that was
tendered” or whether there was “any information in there that you believe is incorrect or needs to
be clarified,” defendant said, “nope.”
¶ 14 The State recommended six years in the Illinois Department of Corrections,
noting defendant was convicted of a Class 2 felony, had a prior history of delinquency involving
the same type of charges, and that his character and demeanor were such that he would not be
likely to comply with a term of probation. The State pointed to the fact defendant continued to
use controlled substances even after being found guilty in this case and lied to the probation
department about how recent his drug use had been. It also noted, in the presentence report,
defendant sought to deny the cannabis plants were his. The State also argued deterrence was a
major consideration when taking into account the “large scale production of cannabis sativa
plants” and argued probation would “deprecate the seriousness of the facts.”
¶ 15 Defendant asked for probation, in part, due to his ongoing medical issues. He also
denied lying to the probation department.
¶ 16 The trial court began its discussion of what might constitute an appropriate
sentence by observing, “the statute does direct the Court to consider probation as the first and
preferred disposition unless it would deprecate the serious nature of the charges.” The court said
-5- there were a number of factors to be considered, including the evidence at trial, aggravating and
mitigating factors set forth in the statute, defendant’s own statements, the financial impact of a
sentence, and “other relevant statutory factors.” Finding the aggravating factors outweighing
those in mitigation, the court noted defendant’s prior record, acknowledging the extent of the
record was a little confusing due to the existence of some unverified cases. Outlining defendant’s
periods of incarceration, the court found there were apparently no convictions between 2003 and
2013. However, defendant’s criminal history indicated his involvement with drug-related
offenses was long-standing. The court acknowledged, “selling is not the charge here, but
obviously, given the amount that we’re dealing with I think that’s a reasonable thing to be
thinking about.” As a result, the court indicated defendant’s prior record with not only
possession-related offenses, but also manufacturing or delivery of controlled substances, “is a
pretty strong aggravating factor.” The court also discussed the need for deterrence as a “strong
aggravating factor.” The court recognized the number of plants made it appear less likely they
were for defendant’s personal use.
¶ 17 The trial court discussed factors in mitigation, observing, “[t]here aren’t very
many mitigating factors here.” The court concluded defendant’s ongoing medical condition was
not such that it would be endangered by imprisonment. The surgery defendant talked about
during the pendency of the case had already taken place, and he was now engaged in therapy,
which could be conducted in the Illinois Department of Corrections.
¶ 18 In summation, the trial court noted the “very serious offense,” because defendant
was “a person engaged in the production of cannabis sativa plants that appears to be an amount
well beyond personal use,” and two aggravating factors “that really stand out, [defendant’s] prior
record as well as deterrence.” Finding probation would deprecate the seriousness of the offense,
-6- the court concluded the State’s recommendation was appropriate, noting defendant had
previously been sentenced to prison for six years on a manufacturing/delivery charge, which did
not deter him from future criminal conduct. The court then imposed a sentence of six years in the
Illinois Department of Corrections.
¶ 19 During the trial court’s admonishment of defendant’s appeal rights, he indicated
his intention to appeal and accepted the appointment of the public defender to perfect a motion to
reconsider the sentence in preparation for his appeal. Defendant’s motion for reconsideration,
filed September 25, 2017, alleged the court failed to consider all mitigating factors, noting
specifically: (1) the offense was not a violent offense and defendant’s conduct neither caused nor
threatened serious physical harm to another, nor did defendant contemplate that it would;
(2) defendant led a law-abiding life for a substantial period of time before this conviction; (3) the
court improperly considered a number of what defendant described as “unverified, inaccurate
and non-confirmed” criminal offenses listed in the presentence investigation report; and (4) the
court failed to consider defendant’s advanced age and health. Defendant also contended the
sentence imposed was an abuse of discretion, excessive, and disproportionate to the nature of the
offense.
¶ 20 At the hearing on defendant’s motion, the public defender focused primarily on
mitigating factors he contended were not considered by the trial court, the prejudice caused by
the inclusion of various offenses for which there was no verifying information, and defendant’s
age and medical condition. The State pointed out a motion for reconsideration was not an
opportunity to present new or additional arguments to the court. It noted the court was well
aware of defendant’s age and medical condition and had noted the unverified criminal history
information would not be considered, and the State pointed out that a substantial portion of the
-7- time defense counsel attributed to law-abiding conduct was due to a 15-year prison sentence
defendant was serving.
¶ 21 In denying the motion, the trial court said it considered all relevant factors in
mitigation, including those mentioned by defendant, whether expressed or not. Although
defendant sought to raise new arguments at the motion hearing, the court specifically stated it
“did consider all of the aggravating factors, [and] all of the mitigating factors.” The court did not
find the mitigating factors “very strong in this case” and said it “certainly felt and continue[s] to
feel that the aggravating factors in this case strongly outweigh the mitigating factors.” Having
considered all the factors raised by defendant postsentencing and finding the sentence within the
statutory range and appropriate under the circumstances, the court denied the motion to
reconsider.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 “The sentence imposed by the trial court is entitled to great deference and will not
be reversed on appeal absent an abuse of discretion.” (Internal quotation marks omitted.) People
v. Wheeler, 2019 IL App (4th) 160937, ¶ 39, 126 N.E.3d 787 (quoting People v. McGuire, 2017
IL App (4th) 150695, ¶ 38, 92 N.E.3d 494). “When imposing a sentence, the trial court must
consider statutory factors in mitigation and aggravation, but the court need not recite and assign a
value to each factor it has considered.” McGuire, 2017 IL App (4th) 150695, ¶ 38. “The weight
to be accorded each factor in aggravation and mitigation in setting a sentence of imprisonment
depends on the circumstances of each case.” People v. Hernandez, 204 Ill. App. 3d 732, 740, 562
N.E.2d 219, 225 (1990). Citing Hernandez in People v. Crenshaw, 2011 IL App (4th) 090908,
¶ 24, 959 N.E.2d 703, this court said, “[t]he balance to be struck amongst the aggravating and
-8- mitigating factors is a matter of judicial discretion that should not be disturbed absent an abuse of
discretion.” “In considering the propriety of a sentence, the reviewing court must proceed with
great caution and must not substitute its judgment for that of the trial court merely because it
would have weighed the factors differently.” People v. Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207,
209 (1999). “A sentence within statutory limits will not be deemed excessive and an abuse of the
court’s discretion unless it is ‘greatly at variance with the spirit and purpose of the law or
manifestly disproportionate to the nature of the offense.’ ” People v. Pina, 2019 IL App (4th)
170614, ¶ 20 (quoting Fern, 189 Ill. 2d at 54).
¶ 25 Here, defendant contends the trial court considered improper factors in
aggravation and/or failed to consider relevant mitigating factors, and as a result, it abused its
discretion by imposing an excessive sentence. In essence, this was the same argument raised in
his motion to reconsider the sentence. However, it is true a trial court is not to consider
incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors when
fashioning a sentence (see Hernandez, 204 Ill. App. 3d at 740). “The defendant bears the burden
to affirmatively establish that the sentence was based on improper considerations, and we will
not reverse a sentence *** unless it is clearly evident the sentence was improper.” People v.
Etherton, 2017 IL App (5th) 140427, ¶ 29, 82 N.E.3d 693.
¶ 26 By selectively parsing some of the trial court’s comments at sentencing while
ignoring others, defendant argues the court found no mitigating factors present, or it failed to
take them into consideration. The record reflects otherwise. While explaining its rationale for the
sentence it was about to impose, the trial court first acknowledged it was required to consider
probation, then proceeded to discuss the other “number of factors that I have to take into
consideration including the evidence that was received at trial, aggravating and mitigating factors
-9- as set forth in the statute, other matters including the defendant’s statement, the financial impact
of a sentence and other relevant statutory factors.” The court went on to say, “when I look at the
aggravating and mitigating factors in the case, it does seem that the aggravating factors outweigh
the mitigating factors.” The court then discussed the aggravating factor of defendant’s prior
criminal history.
¶ 27 Defendant contends the trial court “improperly rel[ied] on unverified criminal
history records,” arguing the court considered some of the unverified information regarding
offenses from the seventies when fashioning its sentence. Actually, the court merely mentioned
them, noting defendant’s prior record was “a little confusing reading the report since some of the
stuff has not been verified and/or confirmed.” Taken in context, the comments about how far
back the record goes were mentioned in relation to the confusing nature of the information. The
court then switched gears, referencing a summary of actual convictions upon which it was
relying: “[s]o there was a summary that was a little bit more helpful and that came—Here we go.
You were sentenced in 1998 on some drug related offenses that you were paroled in 2003, and
then nothing between 2003 and 2013 if I understand your PSI correctly.” The court then
specifically noted, “and then there was some more arrests; and there are pending charges which
this court is not considering because you are presumed innocent.” (Emphasis added).
¶ 28 What defendant does not say, and which would not be clear from the transcript, is
that the presentence investigation report was structured in such a way as to list all known
convictions first, then separately identify those for which there was no verification beyond their
listing in the National Criminal Information Computer for this defendant. In spite of the lack of
verification, defendant was familiar with at least 5 of the 13 offenses, indicating dispositions by
dismissal, nolle prosequi, or a finding of not guilty. Defendant’s argument disregards entirely the
- 10 - State’s perfectly reasonable observation that defendant, at the outset of the sentencing hearing,
denied he had “[a]ny objection to the report that was tendered, or any information in there that
[he] believe[d] was incorrect or needs to be clarified.” There is nothing about the court’s
comments which support defendant’s claim. The court made no specific reference to any of the
“unverified” offenses when providing its analysis of defendant’s criminal history, and it is not
reasonable to conclude it was unable to distinguish the unverified offenses from those known to
be defendant’s.
¶ 29 One comment by the trial court, “[b]ut you do have a history of drug related
offenses going back to your youth, and I understand that,” is grasped upon by defendant as
justification for his claim the court considered the unverified cases listed. Instead, elsewhere in
the report, defendant acknowledged his involvement with cannabis began “in his 20’s” and
continued to the present time. He acknowledged using cocaine since he was 25, and he continues
to do so. Of the four Florida offenses between 1981 and 1993 listed as unverified, there is no
comment or notation by the report writer indicating defendant “did not recall” them or denied the
Florida cases were his. In fact, he identified two of the four as having been either dismissed or
resulting in a finding of no probable cause. A 1981 marijuana delivery/possession conviction out
of Hillsborough County, Florida, resulted in a sentence of two years of probation. It, too, would
have taken place while defendant was in his twenties, and there is no notation indicating
defendant either denied or did not recall this case, so the court’s comment must be taken in
context.
¶ 30 Defendant contends the trial court’s comments that his history was a “pretty
strong aggravating factor” and, “you have continued to make bad choices throughout your entire
life,” are to be interpreted by this court to “show reliance on the unverified records that
- 11 - [defendant] did not remember, or believed were dismissed or not prosecuted.” This amounts to
pure speculation by defendant since the record reveals the only offenses specifically referenced
by the court were those convictions defendant does not contest. “[T]he reviewing court should
not focus on a few words or statements of the trial court. Rather, the determination of whether or
not the sentence was improper must be made by considering the entire record as a whole.”
People v. Ward, 113 Ill. 2d 516, 526-27, 499 N.E.2d 422, 426 (1986).
¶ 31 “Whether a trial court considered an improper factor when sentencing a defendant
is a question of law, which we review de novo.” People v. Winchester, 2016 IL App (4th)
140781, ¶ 72, 66 N.E.3d 601. “There is a strong presumption that the trial court based its
sentencing determination on proper legal reasoning, and a court of review should consider the
record as a whole, rather than focusing on a few words or statements by the trial court.” People
v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22, 979 N.E.2d 1014. It is the defendant’s
burden to “ ‘affirmatively establish’ ” the trial court relied on an improper sentencing factor
when fashioning its sentence. People v. Williams, 2018 IL App (4th) 150759, ¶ 18, 99 N.E.3d
590.
¶ 32 Even if defendant is able to meet his burden to show the trial court actually relied
upon an improper factor in sentencing, remand is not required “where it can be determined from
the record that the weight placed on the improperly considered aggravating factor was so
insignificant that it did not lead to a greater sentence ***.” (Internal quotation marks omitted.)
People v. Gilliam, 172 Ill. 2d 484, 521, 670 N.E.2d 606, 623 (1996) (quoting People v. White,
114 Ill. 2d 61, 67, 499 N.E.2d 467, 469 (1986), quoting People v. Bourke, 96 Ill. 2d 327, 332,
449 N.E.2d 1338, 1340 (1983)).
- 12 - ¶ 33 Here, the trial court repeatedly noted it was to consider both factors in aggravation
and mitigation, concluding the aggravating factors carried greater weight. Defendant, 65 years of
age, was facing a Class 2 felony for growing 53 small and 58 large cannabis plants with a total
weight of 4221 grams as part of an elaborate and expensive cannabis growing operation. He
admitted he was doing so, not only for personal pain management, but because it “pays bills.”
Although he told the police this was his first time, he somehow knew he did not yet have a crop
ready for sale because it takes “three months cycles” to get going.
¶ 34 Defendant had a verified criminal history stretching back 34 years, or roughly half
of his life, to 1983. He told the probation department he was using cannabis in his twenties. His
first verified conviction was for controlled substances in 1983, and since that time, he had been
convicted of one criminal drug conspiracy in 1994, two possession of controlled substances cases
in 1995, and one manufacture/delivery of controlled substances in 1996. This does not include an
unrelated weapons offense out of Florida in 1992 and a previous cannabis possession in
Livingston County in 2013. Having previously received a 15-year sentence, a 6-year sentence,
two sentences of 18 months “special” probation, 2 years of probation, and 1 year conditional
discharge, defendant was not deterred from becoming involved in a large-scale cannabis
production operation for which he was now facing the possibility of anywhere from 3 to 7 years
in the penitentiary.
¶ 35 Defendant had been asked to provide a urine screen prior to the beginning of his
sentencing hearing and he refused. He told the probation department he had not consumed
cocaine since “last month” and heroin “a week ago” when he appeared for his presentence
interview in June 2017. A drug screen conducted that day showed defendant tested positive for
benzodiazepine, heroin, methadone, morphine, and cocaine. He did not contest the results,
- 13 - admitting buying methadone “off the street” and using “narcos,” or narcotic drugs, without a
valid prescription.
¶ 36 One would be hard-pressed not to consider defendant’s criminal history
significant, or his involvement with controlled substances long-standing. There is nothing in this
record, absent defendant’s bare speculation, to indicate the trial court improperly considered any
unverified criminal history in fashioning its sentence.
¶ 37 Next, defendant contends the trial court abused its discretion in noting the distinct
possibility defendant was growing 111 cannabis plants, using sophisticated lighting connected to
timers, large carbon dioxide cannisters, and an elaborate ventilation system, all consistent with
what the investigator described as an “expensive” cannabis “grow” operation or industry, for the
combined purposes of use and sale. Defendant argues since “intent to sell” was not charged, then
it could not be considered. Of course, this completely ignores defendant’s own admission to the
police, as reflected in the presentence investigation report, that he grew the cannabis both for his
pain management and because it “pays bills,” or defendant’s admission he was growing the
cannabis to make money, but that the grow cycle had not yet reached that point. It also fails to
recognize the trial court had defendant’s criminal history before it, indicating prior convictions
for criminal drug conspiracy and manufacture/delivery of controlled substances, neither of which
are considered simple possession offenses.
¶ 38 Trial courts may discuss the extent and nature of a defendant’s involvement in a
crime without being found to have relied on an improper factor in aggravation. In People v. Rios,
2011 IL App (4th) 100461, 960 N.E.2d 70, the defendant contended the trial court improperly
considered a factor in aggravation which was inherent in the offense by commenting on the
amount of money a defendant, convicted of possession with intent to deliver, was making a day,
- 14 - the number of people being supplied, and the lack of financial need to sell drugs. We found
comments by the court intended to highlight the “extent and nature of a defendant’s involvement
in a particular criminal enterprise, a defendant’s underlying motivation for committing the
offense, the likelihood of the defendant’s commission of similar offenses in the future and the
need to deter others from committing similar crimes” are proper considerations. Rios, 2011 IL
App (4th) 100461, ¶ 15.
¶ 39 Here defendant acknowledged his motivation for producing the plants was to “pay
bills,” thereby clearly implying an intention to sell some of the cannabis he produced.
Considering the evidence of the quantity of plants and the “elaborate” growing methods, when
coupled with defendant’s own statements, it was not unreasonable for the trial court to consider
the very real possibility the production of such a quantity of cannabis plants was, at least in part,
intended for sale. This does not constitute reliance upon an improper factor in aggravation but is
instead the observation of the court based upon both circumstantial and direct evidence. The trial
court is permitted to consider the amount of drugs possessed, especially “within the context of
determining the seriousness of the offense, the need to protect the community, the need to deter
others from committing similar crimes, and to punish the defendant. These [are] all appropriate
considerations for the court.” People v. Garcia, 2018 IL App (4th) 170339, ¶ 42, 99 N.E.3d 571.
Such was the context in which the comments were made. The court noted defendant’s criminal
history, history of drug related offenses and continued involvement with drugs, the seriousness
of the offense, the need to deter others, and the protection of society—all proper areas of
consideration at sentencing. See People v. McGath, 2017 IL App (4th) 150608, ¶ 63, 83 N.E.3d
671.
- 15 - ¶ 40 Defendant next contends the trial court abused its discretion by failing to consider
defendant’s health, length of law-abiding behavior, and the nonviolent nature of the offense as
factors in mitigation. Considering the fact defendant appeared throughout this case, repeatedly
referenced his medical condition, requested continuances based on anticipated medical
procedures or treatments, sought a continuance of his sentencing because he was still “receiving
treatments,” maintained his cultivation of cannabis was to manage the pain caused by his
medical condition, and argued his medical condition as a reason he should receive probation, it is
difficult to envision a circumstance where a trial court could have been any more aware of a
defendant’s medical condition.
¶ 41 When offered an opportunity to make a recommendation to the trial court with
regard to what his sentence should be, defendant began with: “[w]ell, on the sentencing, Judge,
you know, I would like to get probation because, you know, I’ve got medical reasons to. And I
still haven’t finished my, you know, my therapies.” During its pronouncement of sentence, the
court noted: “I understand you are talking about issues with regard to your medical condition;
and that is, there is a mitigating factor that imprisonment would endanger your medical
condition. I don’t see that as being a factor in this case. You’ve had your surgery. You are doing,
you are engaged in therapy. There’s nothing to suggest that your condition would worsen
whether that therapy was modified or adjusted or completed in the Department of Corrections if
that’s the sentence.” Defendant references this interchange between the court and defendant in
his brief. Defendant’s argument, in reality, is not that the court failed to consider his medical
condition, but that the court did not assign the amount of weight to it defendant deems
appropriate. It is clear mitigating evidence was before the court. When mitigating evidence is
- 16 - before the court, it is assumed that the court considered it, unless the record indicates otherwise.
People v. Burton, 184 Ill. 2d 1, 34, 703 N.E.2d 49, 65 (1998).
¶ 42 Defendant further contends the trial court “failed to consider that [defendant] did
not cause physical harm, or contemplate that harm would be caused, to another person.” As we
noted at the outset of this analysis, a sentencing court “is not obligated to recite and assign value
to each factor it relies upon, nor does it need to place greater weight on defendant’s rehabilitative
potential than on the seriousness of the offense or the need to protect the public.” People v.
Mayoral, 299 Ill. App. 3d 899, 913, 702 N.E.2d 238, 248 (1998). The same is true here. Having
indicated it has considered the statutory factors in aggravation and mitigation, we are to presume
the court considered the nonviolent nature of the offense; it just didn’t give it much weight in the
overall analysis, nor is it required to. People v. McCain, 248 Ill. App. 3d 844, 853-54, 617
N.E.2d 1294, 1301-02 (1993).
¶ 43 III. CONCLUSION
¶ 44 Having found the trial court properly considered the statutory factors in
aggravation and mitigation and imposed a sentence within the statutory range of sentences
possible, we find there was no abuse of discretion and affirm the judgment and sentence of the
court.
¶ 45 Affirmed.
- 17 -