People v. Rosado

2024 IL App (1st) 221759-U

Opinion

2024 IL App (1st) 221759-U No. 1-22-1759 Order filed June 21, 2024 Fifth 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. 13 CR 6261 ) CARLOS ROSADO, ) Honorable ) Angela M. Petrone, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE MITCHELL delivered the judgment of the court. Justice Mikva and Justice Lyle concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s 18-year sentence for possession of a controlled substance with intent to deliver as the trial court did not improperly consider in aggravation a factor inherent in the offense.

¶2 Following a jury trial, defendant Carlos Rosado was found guilty of possession of a

controlled substance with intent to deliver and sentenced to 18 years in prison. On appeal,

defendant challenges his sentence, arguing that the trial court improperly considered in aggravation

the societal harm from drugs, which was a factor inherent in the offense. We affirm. No. 1-22-1759

¶3 BACKGROUND

¶4 Defendant was convicted of possession of a controlled substance with intent to deliver (720

ILCS 570/401(a)(2)(D) (West 2012)) after a jury trial. Defendant was arrested after police

executed a search warrant at his apartment and recovered a total of 1289.6 grams of cocaine,

packaged in smaller amounts. At trial, an expert in narcotics investigation opined that such an

amount of cocaine could create approximately 12,890 “dime bags” for distribution with an

estimated street value of $128,980.

¶5 Defendant’s presentence investigation report (PSI) reflected that defendant was then 52

years old, divorced, and had five children. He had no gang involvement, no prior juvenile

convictions, and only minor traffic offenses. He described his childhood as normal, had great

relationships with his parents, and did not report abuse or neglect in his upbringing. Defendant had

a 10th grade education, as he stopped attending school to help support his family. Defendant had

been previously self-employed for a decade but closed his company due to marital issues. He had

been working as a mechanic for a year and a half prior to the offense. Defendant had good

relationships with his children and supported all of them financially. He described his family and

friends as law-abiding and supportive. Defendant reported no prior or current mental health issues,

drug abuse problems, or alcohol abuse problems.

¶6 At sentencing, the State argued in aggravation the quantity of cocaine recovered. The State

noted that the “highest” possession of a controlled substance that a person could be charged with

was “over 900 grams,” and defendant had in his possession almost 400 grams more than that

amount. The State argued that represented “12,890 bags of cocaine that could have been sold on

the streets and could have affected that many people’s lives,” with defendant’s potential “profits”

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around $128,000. The State asserted defendant did this “out of greed, not out of desperation to

support his family.” The State noted the sentencing range was 15 to 60 years, to be served at 75%.

It requested a sentence in excess of the minimum given the quantity of cocaine, the many lives that

could have been affected had defendant actually sold the cocaine, and the fact he committed the

crime out of greed.

¶7 Defense counsel argued in mitigation that the mandatory minimum sentence was an

“extraordinary” sentence for the quantity of cocaine involved, and “certainly” sufficient to deter

and protect the public from any harm that could possibly be posed by defendant. Counsel pointed

out that defendant had no significant criminal history, lived a law-abiding life, had no connection

to “violence or weapons or dangerousness of any kind,” and, outside this instance, was a “model

person doing what he should be doing in his life.” Defendant would exit custody at an advanced

age “where it is very, very unlikely for any recidivism or any danger that he might pose on the

community.”

¶8 Defense counsel presented three witnesses on defendant’s behalf: Laura Rosado,

defendant’s daughter; Pamela Anderson, defendant’s girlfriend of two years; and Demetrio Javier,

defendant’s younger brother.1 All three testified to the impact on defendant’s family, defendant’s

character as a “giving, kind, patient, loving man,” and the adverse impact defendant’s incarceration

would have on his family, especially at his age. Counsel argued that “one event doesn’t cancel out

everything else one might ha[ve] done” and asked for the minimum sentence.

¶9 In announcing its sentence, the court recited the information reflected in the PSI, including

defendant’s educational and employment history, family relations, and his “non-existent” criminal

1 We refer to Laura Rosado by her first name as she shares the same last name as defendant.

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history, absent some traffic arrests that it would not consider. The court referenced the testimony

of defendant’s family, noting their “complete love and affection” for defendant. It stated there was

“no excuse” for defendant’s behavior because he had a loving family, was employable, and had

support “all the way around him.” The court stated “[t]here was no reason for the defendant to

possess such a large amount of narcotics with intent to deliver.” It found in “stark contrast to the

love of the defendant’s family that the defendant’s possession with intent to deliver 12,890 dime

bags potentially to be distributed to other people’s family members, *** girlfriends, boyfriends

and destroying other families.” The court further stated that “the love and support of one family

cannot be based on helping to distribute drugs to other people’s families.”

¶ 10 The court sentenced defendant to 18 years in prison, stating that a sentence toward the high

end of the sentencing range would not be appropriate. Defense counsel did not file a motion to

reconsider sentence. Defendant appealed.

¶ 11 On August 14, 2015, this court dismissed defendant’s appeal for want of prosecution.

People v. Carlos Rosado, No. 1-15-0215. On May 19, 2021, defendant filed a petition for

postconviction relief, alleging ineffective assistance of counsel for failing to file a record or any

other documents in his direct appeal. The State agreed that defendant’s claim of ineffective

assistance of appellate counsel was meritorious. Following a third stage evidentiary hearing, the

trial court found that defendant was not culpably negligent for failing to present his ineffective

assistance claim earlier and granted leave to file a late notice of appeal nunc pro tunc to the date

of sentencing (December 30, 2014). As a result, despite the gap in time, this is effectively

Defendant’s direct appeal. See Ill. S. Ct. R. 606(b) (eff. March 12, 2021).

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¶ 12 ANALYSIS

¶ 13 Defendant argues his 18-year sentence should either be reduced to the mandatory minimum

of 15 years, or his case should be remanded for a new sentencing hearing because the trial court

improperly considered in aggravation the societal harm from drugs, which was inherent in the

offense of possession of a controlled substance with intent to deliver.

¶ 14 Defendant acknowledges this claim is forfeited as he did not object at sentencing or file a

motion to reconsider sentence, but he contends that the error constitutes plain error under both

prongs of the plain error doctrine. See People v. Hillier, 237 Ill. 2d 539, 544 (2010) (“both a

contemporaneous objection and a written postsentencing motion raising the issue are required” to

properly preserve a sentencing error). In the alternative, he argues trial counsel was ineffective for

failing to preserve the error in the trial court by objecting at sentencing and filing a motion to

reconsider sentence.

¶ 15 Forfeited sentencing claims may be reviewed under the plain error doctrine, which is a

“narrow and limited exception” to forfeiture. Id. at 545. The burden of persuasion is on the

defendant, who must first establish that a “clear or obvious error occurred.” Id. For sentencing

errors, the defendant must then show either that “(1) the evidence at the sentencing hearing was

closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing

hearing.” Id. This court must honor the procedural default where a defendant fails to establish plain

error. People v. Naylor, 229 Ill. 2d 584, 593 (2008). We first determine whether an error at

sentencing occurred at all. Id.

¶ 16 The Illinois Constitution provides that a trial court shall impose a sentence balancing “the

seriousness of the offense” and “the objective of restoring the offender to useful citizenship.” Ill.

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Const. 1970, art. I, § 11. The trial court has broad discretionary powers when imposing a sentence,

and this court will not disturb a sentence appropriately within the statutory limits absent an abuse

of discretion. People v. Burton, 2015 IL (1st) 131600, ¶¶ 35-36. In the sentencing context, an abuse

of discretion occurs when a sentence “varies greatly from the spirit and purpose of the law” or is

“manifestly disproportionate to the nature of the offense.” People v. Contursi, 2019 IL App (1st)

162894, ¶ 23.

¶ 17 In fashioning a sentence, the trial court must consider “both the seriousness of the offense

and the defendant’s rehabilitative potential” and carefully consider all factors in aggravation and

mitigation. Contursi, 2019 IL App (1st) 162894, ¶ 24; People v. Jones, 2019 IL App (1st) 170478,

¶ 50. These factors include “the defendant’s age, demeanor, habits, mentality, credibility, criminal

history, general moral character, social environment, and education, as well as the nature and

circumstances of the crime and of defendant’s conduct in the commission of it.” People v.

Quintana, 332 Ill. App. 3d 96, 109 (2002). The seriousness of the offense is the most important

factor in determining an appropriate sentence, and the court is not required “to give greater weight

to mitigating factors than to the seriousness of the offense,” nor does the “presence of mitigating

factors either require a minimum sentence or preclude a maximum sentence.” People v. Harmon,

2015 IL App (1st) 122345, ¶ 123.

¶ 18 Here, defendant was found guilty of possession of a controlled substance with intent to

deliver 900 grams or more of a substance containing cocaine, a Class X felony carrying a

sentencing range of 15 to 60 years in prison. 720 ILCS 570/401(a)(2)(D) (West 2012). Defendant

argues that he was deprived of a fair sentencing hearing, as the trial court improperly considered

the societal harm from drugs, a factor inherent in the offense, as an aggravating factor when

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imposing the 18-year prison sentence. As defendant’s 18-year sentence falls within the statutory

sentencing range, it is presumed proper unless defendant can affirmatively establish the sentence

was based on improper considerations. People v. Cruz, 2019 IL App (1st) 170886, ¶ 54.

¶ 19 A factor inherent in an offense for which a defendant has been convicted may not also serve

as a factor in aggravation at sentencing. People v. Phelps, 211 Ill. 2d 1, 11 (2004). The prohibition

on the dual use of a single factor, referred to as “double enhancement,” is based on the assumption

that, “in designating the appropriate range of punishment for a criminal offense, the legislature

necessarily considered the factors inherent in the offense.” Id. at 12. A contention that the court

improperly considered an aggravating factor that was inherent in the offense is asserting that the

court imposed a “ ‘harsher sentence than might otherwise have been imposed’ ” had the court not

considered the improper factor. Id. (quoting People v. Gonzales, 151 Ill. 2d 79, 84 (1992)).

Whether a trial court considered an improper aggravating factor at sentencing should be based on

the record as a whole as opposed to focusing on a few words or statements. People v. Valadovinos,

2014 IL App (1st) 130076, ¶ 47.

¶ 20 Here, defendant has not shown that the trial court relied on an improper factor in

aggravation at sentencing. Defendant challenges the following remarks made by the trial court at

sentencing as improperly reflecting societal harm from drugs:

“There was no reason for the defendant to possess such a large amount of narcotics

with intent to deliver, and it is in stark contrast to the love of the defendant’s family that

the defendant’s possession with intent to deliver 12, 890 dime bags potentially to be

distributed to other people’s family members, other people’s children, brothers, sisters,

girlfriends, boyfriends and destroying other families.

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***

[D]efendant’s conduct did cause or threatened serious harm to other members of

society.

[T]he sentence is necessary to deter others from committing the same crime. Fast

money cannot be made by possessing large amounts of drugs which have the potential to

cause great harm to other members of society.”

¶ 21 Defendant contends that where a statute establishes a penalty range corresponding to a

range of possession amounts, it is presumed that the legislature has already considered the societal

harm of the offense. However, the prohibition against double enhancement is not applied so rigidly

that the sentencing court is forced to ignore factors relevant to the imposition of a sentence. People

v. Saldivar, 113 Ill. 2d 256, 268 (1986). As noted, penalties must be determined both according to

the seriousness of the offense and with the objective of restoring the offender to useful citizenship.

Id. Thus, a sentence must be based upon consideration of the particular circumstances of each

individual case, which include “the nature and extent of each element of the offense as committed

by the defendant.” Id. at 268-69.

¶ 22 As our supreme court has explained:

“While the classification of a crime determines the sentencing range, the severity

of the sentence depends upon the degree of harm caused *** and as such may be considered

as an aggravating factor in determining the exact length of a particular sentence, even in

cases where *** harm is arguably implicit in the offense for which a defendant is

convicted.” (Emphasis in original.) Saldivar, 113 Ill. 2d at 269.

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The trial court’s comments demonstrate that it considered the specific quantity of cocaine

defendant possessed and the degree of harm that distributing such a quantity would create. It also

considered the need to deter others from committing a similar offense. These were proper

considerations in fashioning a sentence. See 730 ILCS 5/5-5-3.2(a)(7) (West 2012) (deterrence to

others to commit the offense is an aggravating factor); People v. Peter, 220 Ill. App. 3d 626, 632

(1991) (identifying the quantity of drugs in excess of the minimum, purity level, and “potential for

having far-reaching impact on society” as factors a trial court may consider at sentencing).

¶ 23 Moreover, possession of a quantity of drugs exceeding the minimum for a sentencing range

is a factor the trial court may consider in fashioning the appropriate sentence. See Peter, 220 Ill.

App. 3d at 632; People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22; People v. Alcala,

248 Ill. App. 3d 411, 426 (1993). The sentence imposed, which was a mere 3 years above the

minimum sentence but 42 years below the maximum sentence, was not “manifestly

disproportionate to the nature of the offense,” (Contursi, 2019 IL App (1st) 162894, ¶ 23), where

defendant possessed 389 grams more than the threshold amount of 900 grams specified in the

statute. See 720 ILCS 570/401(a)(2)(D) (West 2012) (“not less than 15 years and not more than

60 years with respect to 900 grams or more” of cocaine).

¶ 24 In sum, defendant has not met his burden to affirmatively establish that the trial court

considered a factor implicit in the offense in aggravation. We therefore find no error in the court’s

sentencing decision and our plain error analysis need go no further. See People v. Hood, 2016 IL

118581, ¶¶ 18, 29 (stating there can be no plain error without a finding of error). Because we find

no sentencing error, we need not address defendant’s alternative ineffective assistance of counsel

argument premised on counsel’s failure to preserve the sentencing error for review. See People v.

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Dorsey, 2023 IL App (1st) 200304, ¶ 67 (“if there was not the clear or obvious error required for

plain error, then there was also no ineffective assistance of counsel”).

¶ 25 For the foregoing reasons, we affirm defendant’s sentence.

¶ 26 Affirmed.

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