People v. Rice

2023 IL App (1st) 211439-U

• Court: Appellate Court of Illinois
• Decided: May 16, 2023
• Docket: 1-21-1439
• Status: Unpublished

Opinion

2023 IL App (1st) 211439-U No. 1-21-1439 Order filed May 16, 2023 Second Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 98 CR 19106 ) CION RICE, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.

ORDER

¶1 Held: Defendant’s sentence affirmed where the circuit court did not abuse its discretion in imposing concurrent prison terms of 37 years for first degree murder and 10 years for attempted first degree murder.

¶2 Following a 1999 jury trial, defendant Cion Rice was found guilty of first degree murder

and attempted first degree murder. Defendant was 17 years old when he committed the offenses.

The trial court imposed concurrent prison terms of 50 years for first degree murder and 10 years No. 1-21-1439

for attempted first degree murder. This court affirmed on direct appeal. People v. Rice, 321 Ill.

App. 3d 475 (2001).

¶3 Defendant then filed a petition pursuant to the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2020)). Defendant requested a new sentencing hearing, arguing that

his 50-year sentence constituted cruel and unusual punishment in violation of the eighth

amendment. The circuit court ultimately vacated defendant’s sentences and ordered a new

sentencing hearing. Following the new sentencing hearing, the circuit court imposed concurrent

prison terms of 37 years for first degree murder and 10 years for attempted first degree murder.

Defendant appeals, contending that the court abused its discretion by misapplying the mitigating

factors set forth in section 5-4.5-105 of the Unified Code of Corrections (Code) (730 ILCS 5/5-

4.5-105 (West 2020)). We affirm.

¶4 As reflected in our prior order, the trial evidence established that on June 18, 1998,

defendant pointed at Reggie Rupert and stated that he would kill him. Rice, 321 Ill. App. 3d at 478,

480. On June 21, 1998, Rupert and his girlfriend Gerchaton Young were conversing outside of

Gercha’s cousin’s home. 1 Id. at 477. Gercha was sitting in the front passenger seat of a vehicle,

and Rupert stood outside the vehicle. Id. As they conversed, a maroon vehicle approached, and the

individuals in the rear seat, whom Rupert identified as defendant and Donzell Lowe, opened fire,

injuring Rupert and killing Gercha. 2 Id. at 477-78. At the time of the shooting, Rupert had recently

been released on bail after being charged with the murder of Lowe’s brother. Id. at 477.

1 In this order, as in our order on direct appeal, we will refer to Gerchaton Young as Gercha. As several witnesses and individuals mentioned in the evidence have the same last name as Gercha, we will refer to them by their first names. 2 Donzell Lowe was tried separately from defendant and is not a party to this appeal.

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¶5 The jury found defendant guilty of the first degree murder of Gercha and the attempted

first degree murder of Rupert. Id. at 480. The trial court imposed concurrent prison terms of 50

years and 10 years, respectively. Id. On direct appeal, defendant argued that the trial court

committed reversible error by admitting hearsay testimony and erred in considering multiple

victim impact statements at sentencing. Id. at 477. We affirmed. Id.

¶6 On June 20, 2017, defendant filed a postconviction petition asserting that his 50-year

sentence constituted cruel and unusual punishment in violation of the eighth and fourteenth

amendments under Miller v. Alabama, 567 U.S. 460 (2012) and People v. Buffer, 2019 IL 122327.

The circuit court advanced the petition to the second stage and appointed counsel, who filed two

supplemental petitions. The circuit court granted defendant’s petition, vacated his sentences, and

ordered a new sentencing hearing.

¶7 At the new sentencing hearing, the circuit court received a new presentence investigative

report (PSI), which reflected that defendant was 40 years old at the time of the interview. As a

minor, he had been adjudicated delinquent for unlawful use of a weapon and possession of

ammunition in 1995 and again in 1996. In 1995, he was also adjudicated delinquent for possession

of a controlled substance, possession of cannabis, aggravated assault, two court order violations,

and aggravated discharge of a firearm. As an adult, defendant was convicted of attempted murder

in 1999. Defendant reported maintaining relationships with his mother and sister. Defendant was

raised by his mother and grandfather and stated that his family still supports him. He denied being

abused and reported that his basic needs were met as a child, but that he may have suffered

childhood trauma due to “family dying around him.”

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¶8 Defendant was expelled from high school for missing classes and detention. He desired to

continue his education but had been unable to enroll in the prison’s GED program because he was

“far down” on the waitlist since his sentence was so lengthy. Defendant, however, completed

courses in prison ministry, college skills, and “being a father.” 3 Defendant admitted gang

involvement with the Black P Stones from age 10 to his early 20s. Defendant denied being

diagnosed with psychological conditions but reported seeing a mental health professional as a

juvenile for counseling. Defendant admitted to drinking alcohol and smoking marijuana but denied

this caused problems for him, although he completed substance abuse treatment as a juvenile.

Defendant did not take pride in criminal behavior and stated that he sometimes felt that he lacked

control over events in his life because he failed to think of the consequences of his actions.

¶9 In aggravation, Gercha’s mother Catherine Young presented a victim impact statement.

She stated that defendant took Gercha’s dream of being an architect away. Gercha’s death was

very painful for her family, and Catherine was upset with the law that permitted defendant’s

sentence to be reduced.

¶ 10 Jonetta Young, Gercha’s sister, published a victim impact statement prepared by Edward

Young, Gercha’s cousin. Edward stated that he and Gercha grew up like siblings. Gercha was a

sweet and loving person, and her death created “an empty space that cannot be filled.”

¶ 11 The State submitted additional victim impact statements from Gercha’s relatives that were

not published but are included in the record on appeal. The statements expressed their love for

Gercha and the devastating effect of her death on the family.

3 In the PSI, defendant stated that he did not have children.

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¶ 12 The State argued that defendant was almost 18 years old at the time of the present offenses

and denied being abused or neglected as a child. Defendant participated in planning the murder

when, in the course of a gang conflict, he threatened Rupert a few days prior to the shooting and

then went to “kill in retaliation” for the murder of Lowe’s brother. The State asked the court to

consider defendant’s escalating behavior from attempted murder to murder and that defendant was

on home confinement when he committed these offenses.

¶ 13 In mitigation, defendant presented a developmental life history investigation report

conducted by Caryn Platt Tatelli, a forensic social worker. Tatelli explained that defendant’s father

“was never involved in his life” and he was abandoned by his mother at a young age. Defendant

lived with his grandfather but “became a teenager on the streets,” seeking connections that he

lacked. As an adolescent, defendant witnessed the shooting deaths of his brother and a friend.

Though defendant was 17 years old at the time of the offenses, he was “significantly

developmentally and neurologically younger due to his delayed developmental trajectory.” She

indicated that defendant showed “remarkable potential” for rehabilitation.

¶ 14 Brenda Rice Davis, defendant’s mother, testified that when she became pregnant with

defendant, she was not ready to be a parent. Davis and her father raised defendant, but defendant

lived with her father for most of defendant’s life, including summers and during “financial

struggles.” From ages 8 to 15, defendant witnessed Davis’ husband physically abuse her. After

Davis separated from her husband, defendant became the primary caretaker for his younger sister,

and Davis relied on defendant to take care of the house while she worked. She moved to Georgia

with defendant and his sister, but she “couldn’t get stable,” so she sent them to live with her father,

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who was unable to “keep track” of defendant. Davis stated that she neglected defendant and was

not there for him, which allowed others to influence him.

¶ 15 Defendant submitted letters from two business owners who knew him and indicated that

they would hire him upon his release. Defendant also submitted letters from his niece and nephews,

who expressed their desire for him to be released.

¶ 16 Defense counsel argued each of the mitigation factors set forth in section 5-4.5-105(a) of

the Code (730 ILCS 5/5-4.5-105(a) (West 2020)). Counsel reiterated that defendant committed the

offenses at age 17 and was “subject to outside pressure” from gang members. Counsel further

argued that defendant was neglected by his mother, which affected the development of his brain,

and witnessed domestic violence. While defendant received seven tickets while incarcerated,

counsel stated that they were not for “very serious things” and argued that defendant was

rehabilitated.

¶ 17 In allocution, defendant apologized to the Young family and stated that he “grew up” and

was “trying to right [his] wrongs.”

¶ 18 In sentencing defendant, the court found that he was not beyond rehabilitation, permanently

incorrigible, or irretrievably depraved, and it would therefore not impose a sentence greater than

40 years. Rather, the court found that defendant’s expression of remorse to the Young family was

sincere, he demonstrated a capacity for rehabilitation, and his disciplinary problems in prison were

minimal.

¶ 19 The court then discussed each of the mitigating factors in section 5-4.5-105(a) of the Code,

noting that defendant committed the offenses when he was “almost” 18 years old with no cognitive

or developmental disability. Defendant was a gang member and “made a choice” to shoot Rupert

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without regard to injuring others, and no evidence suggested that he was pressured to commit the

offenses. Instead, defendant was the “moving force” in the offenses, when he actively searched for

Rupert to “exact revenge,” resulting in Gercha’s life being “snuffed out” for “being in the wrong

place, at the wrong time.” Davis indicated that raising defendant was difficult at times and she

neglected him, but defendant reported that he did not suffer childhood abuse and his basic needs

were met as a child. There was also no evidence of physical or emotional abuse, and defendant did

not suffer “childhood traumas.” The court noted that two of defendant’s “gun cases” may have

been rendered void by the supreme court’s decision in People v. Aguilar, 2013 IL 112116, but

were still significant because defendant “went through the system not once but twice” before

committing the present offenses. The court emphasized that defendant received probation on one

of the juvenile cases, which “has a lot to offer a young person,” but “it didn’t take.” Further,

defendant was on home confinement when he committed these offenses. Defendant meaningfully

participated in his defense, where he communicated with trial counsel and aided in his defense.

¶ 20 The court stated that it exercised its discretion and declined to impose the firearm

sentencing enhancement. The court sentenced defendant to concurrent prison terms of 37 years for

first degree murder and 10 years for attempted first degree murder.

¶ 21 Defendant filed a motion to reconsider sentence arguing, inter alia, that the court

improperly applied the Miller factors and that his sentence was excessive. The circuit court denied

the motion.

¶ 22 On appeal, defendant contends that the circuit court abused its discretion when imposing

sentence because it failed to adequately consider his youth and attendant circumstances, and

therefore, imposed an excessive sentence.

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¶ 23 A court shall impose a sentence reflecting both “the seriousness of the offense” and “the

objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. The

sentencing court is afforded broad discretion when imposing sentence, and great deference is given

to that sentence. People v. Branch, 2018 IL App (1st) 150026, ¶ 34. Such deference is appropriate

because the sentencing court is best positioned to assess the defendant’s credibility, habits, age,

demeanor, social environment, mentality, and general moral character. People v. Stacey, 193 Ill.

2d 203, 209 (2000).

¶ 24 When a defendant challenges a sentence within the permissible range for the offense, the

reviewing court will not disturb the sentence absent an abuse of discretion. People v. Jones, 2019

IL App (1st) 170478, ¶ 50. In the sentencing context, a sentence that is “greatly at variance with

the spirit and purpose of the law” or “manifestly disproportionate to the nature of the offense”

constitutes an abuse of discretion. People v. Grayer, 2022 IL App (1st) 210808, ¶ 50. A sentence

that falls within the statutory limitations is presumed proper unless the defendant affirmatively

shows otherwise. People v. Knox, 2014 IL App (1st) 120349, ¶ 46.

¶ 25 Here, the jury found defendant guilty of first degree murder and attempted first degree

murder, subjecting him to prison terms of 20 to 60 years and 6 to 30 years, respectively. 730 ILCS

5/5-4.5-20(a), 5-4.5-25(a) (West 2020). At resentencing, the court imposed concurrent prison

terms of 37 years for first degree murder and 10 years for attempted first degree murder, which

fall within the statutory limitations and are presumed proper. Knox, 2014 IL App (1st) 120349,

¶ 46.

¶ 26 When sentencing a juvenile, the court must consider the following factors in mitigation:

(1) defendant’s age, impetuosity, and level of maturity at the time of the offense; (2) outside

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pressures; (3) defendant’s family, home environment, educational and social background; (4)

rehabilitative potential or evidence of rehabilitation; (5) “the circumstances of the offense”; (6)

defendant’s degree of participation and role in the offense; (7) defendant’s ability to meaningfully

participate in his defense; (8) prior juvenile or criminal history; and (9) any other relevant and

reliable information, including an expression of remorse, if appropriate. 730 ILCS 5/5-4.5-105(a)

(West 2020).

¶ 27 Defendant contends that the court abused its discretion by “ignor[ing] significant details”

about his background, including his immaturity due to his age, gang involvement, and difficult

childhood. Therefore, according to defendant, the circuit court misapplied the factors set forth in

section 5-4.5-105(a) of the Code.

¶ 28 The record establishes that at resentencing, defense counsel argued the same mitigating

factors that defendant now argues on appeal. The court was aware of defendant’s age, gang

involvement, and difficult childhood from the PSI, developmental life history investigation report,

and Davis’ testimony. We, therefore, presume that the court considered this information, absent

evidence to the contrary. See People v. Sauseda, 2016 IL App (1st) 140134, ¶ 19 (“Where

mitigating evidence is presented to the trial court, it is presumed, absent some indication to the

contrary, other than the sentence itself, that the court considered it.”). Though the court did not

need to articulate each factor when imposing sentence (People v. Gordon, 2016 IL App (1st)

134004, ¶ 51), the record establishes and defendant acknowledges that the court expounded on

each mitigating factor prior to imposing sentence. It is not our duty to reweigh these factors and

substitute our judgment for that of the circuit court. People v. Alexander, 239 Ill. 2d 205, 214-15

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(2010). Defendant bears the burden of affirmatively showing that the court did not properly weigh

or consider the mitigating factors, and he has failed to do so.

¶ 29 Furthermore, it is evident that the court imposed sentence after balancing the mitigation

factors against the evidence in aggravation and considering the particular circumstances in this

case. People v. McWilliams, 2015 IL App (1st) 130913, ¶ 27; see also People v. Fern, 189 Ill. 2d

48, 53 (1999). The court expounded on each mitigating factor set forth in section 5-4.5-105(a). In

aggravation, the court considered defendant’s juvenile delinquency background, the fact that

defendant wanted to “exact revenge,” and the impact of Gercha’s death on her family. The court

noted that defendant received probation, which “has a lot to offer a young person,” but “it didn’t

take” as defendant ultimately went to juvenile detention and committed attempted murder in a

separate case and the instant offense of first degree murder. Moreover, defendant was on home

confinement when he committed the instant offenses. The court also considered that defendant

was the “moving force” in the offenses when he actively searched for Rupert to “exact revenge,”

and it resulted in the death of Gercha, someone “guilty of nothing more than being in the wrong

place at the wrong time.” The court properly weighed the mitigating factors against the evidence

in aggravation, considering the circumstances of the offenses.

¶ 30 Defendant essentially asks this court to reweigh the sentencing factors and substitute our

judgment for that of the circuit court, which we cannot do. Stacey, 193 Ill. 2d at 209. Accordingly,

we conclude that the circuit court did not abuse its discretion and defendant’s sentence was proper

because he failed to establish that his sentence is “greatly at variance with the spirit and purpose

of the law” or “manifestly disproportionate to the nature of the offense” as to constitute an abuse

of discretion. Grayer, 2022 IL App (1st) 210808, ¶ 50.

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¶ 31 The judgment of the circuit court of Cook County is affirmed.

¶ 32 Affirmed.

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