People v. Rydberg

2023 IL App (4th) 210016-U

• Court: Appellate Court of Illinois
• Decided: January 5, 2023
• Docket: 4-21-0016
• Status: Unpublished

Opinion

2023 IL App (4th) 210016-U NOTICE This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-21-0016 January 5, 2023 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County JAMES RYDBERG, ) No. 19CF164 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justice Zenoff and Justice Knecht concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding:

(1) the trial court did not abuse its discretion by failing to consider relevant mitigation evidence in sentencing defendant,

(2) the trial court did not rely on an incorrect sentencing range by considering defendant’s eligibility for an extended-term sentence,

(3) the trial court’s consideration of defendant’s eligibility for an extended-term sentence in aggravation as indicative of the serious nature of the offense did not constitute to second-prong plain error, and

(4) defendant did not prove cumulative error denied him the right to a fair sentencing hearing.

¶2 Defendant, James Rydberg, entered an open guilty plea to aggravated fleeing or

attempting to elude a peace officer, and the trial court sentenced him to three years’

imprisonment. On appeal, defendant argues the trial court erred by (1) failing to consider relevant mitigating factors at sentencing, (2) relying on an incorrect sentencing range

by considering his eligibility for an extended-term sentence, and (3) considering his eligibility

for an extended-term sentence in aggravation. Defendant also argues the cumulative effect of

these errors deprived him of a fair sentencing hearing. We affirm.

¶3 I. BACKGROUND

¶4 Defendant was charged with aggravated fleeing or attempting to elude a peace

officer (625 ILCS 5/11-204.1(a)(1) (West 2018)), a Class 4 felony. In September 2020, he

entered an open plea of guilty. Before accepting the plea, the trial court advised defendant he

faced a minimum sentence of conditional discharge and a maximum sentence of three years’

imprisonment. The court stated the sentencing range for a term of imprisonment was one to three

years’ imprisonment plus one year of mandatory supervised release.

¶5 As a factual basis for the plea, the State indicated that two officers observed

defendant on the day of the incident driving a vehicle while his license was suspended. They

confirmed his license was suspended and initiated a traffic stop. Defendant sped away from the

officers on an interstate at a speed exceeding 100 miles per hour. An officer drove at a speed of

approximately 120 miles per hour in pursuit of defendant.

¶6 After admonishing defendant, the court accepted his guilty plea.

¶7 A presentence investigation report (PSI) indicated that, at the time of the offense,

defendant was serving a sentence of probation for a 2017 conviction for resisting a peace officer

(720 ILCS 5/31-1(a-7) (West 2016)), a Class 4 felony. The PSI stated defendant had 11

additional prior felony convictions as well as several prior misdemeanor convictions. The PSI

included an Illinois Adult Risk Assessment, which determined defendant had a moderate risk

level for reoffending. At the time the PSI was prepared, defendant had both a full-time job and a

-2- part-time job. He previously had three other jobs during the course of his sentence of probation

for his 2017 conviction. He resigned from one of these positions and was fired from the other

two.

¶8 The PSI described defendant’s compliance with the terms of his probation

sentence for his 2017 conviction as “brief periods of showing progress” which were

“overshadowed by his repeated violations.” Defendant drank alcohol and used cannabis while on

probation. However, he had no violations during a period of time when he was wearing an

alcohol monitoring bracelet. He had seven police contacts during his probation, five of which

resulted in new criminal charges.

¶9 In November 2020, a sentencing hearing was held. Defendant called Catherine

Miles as a witness. Miles testified that she and her husband were disabled, and defendant lived

with them. Defendant helped them with house repairs and yard work, and he contributed to

household expenses. Defendant’s absence would cause financial hardship for Miles.

¶ 10 The State argued a sentence of three years’ imprisonment was appropriate, noting

defendant was extended-term eligible. Defense counsel argued a sentence of 24 months’

conditional discharge was appropriate. Defense counsel noted there was no evidence other

vehicles were on the road at the time of the offense, so there was no basis for concluding

defendant’s actions endangered others. Counsel also noted defendant had not been convicted of

any criminal offenses during the period between 2004 and 2016, had a history of steady

employment, provided assistance to Miles and her husband, and had complied with some of the

terms of his sentence of probation for his prior conviction of resisting a peace officer.

-3- ¶ 11 Defendant made a statement in allocution, stating, “I just throw myself at the

mercy of you, Your Honor, and plead with you to give me the appropriate sentence that’s

necessary.”

¶ 12 In pronouncing its sentence, the trial court began by stating: “There are a number

of factors and other matters that the statute directs the Court to consider. I have considered those

matters in the context of the [PSI].” The court noted several specific factors it believed “[stood]

out.” In aggravation, the court found the offense to be “a pretty serious matter,” as fleeing from

law enforcement creates “a potential risk for harm to others.” The court noted that the legislature

had categorized the offense as a Class 4 felony, which indicated it was “a serious matter.” The

court stated: “Also the fact that [defendant is] eligible for extended term indicates to the Court

that the legislature deems this conduct to be very serious. I mean, the range is more than the

standard range for this offense.”

¶ 13 The trial court stated defendant’s criminal history was a “very strong factor” in

aggravation. The court noted defendant was on probation at the time of the present offense and

found his previous attempt at probation showed he was “not really taking it that seriously.” The

court also found defendant was unlikely to successfully complete another term of probation.

Finally, the court found deterrence was one of the strongest factors in aggravation.

¶ 14 Regarding mitigation, the court stated: “I appreciate the argument from [defense

counsel]. He argues what he has in front of him. But none of those things that he argued are

actual factors in mitigation. There are no *** mitigating factors in this case. There just aren’t

any.” The court found a sentence of probation would deprecate the serious nature of the offense

and sentenced defendant to three years’ imprisonment.

-4- ¶ 15 Defendant filed a motion to reconsider sentence, arguing his sentence was

excessive and an abuse of discretion in light of the applicable mitigating factors. He alleged the

following mitigating factors applied: (1) his conduct neither caused nor threatened serious

physical harm to another; (2) he did not contemplate his criminal conduct would cause or

threaten serious physical harm to another; (3) his conduct was the result of circumstances

unlikely to recur; (4) his character and attitude indicated he was unlikely to commit another

crime and was particularly likely to comply with the terms of probation; and (5) his

imprisonment would entail excessive hardship to his family.

¶ 16 Following a hearing, the trial court denied defendant’s motion to reconsider

sentence. The trial court stated:

“Well, I have not heard anything new today. The arguments were presented and

the information was available to the Court. I pointed out the relevant statutory

factors that stood out in my mind, but I have considered all of the factors that I am

required to consider.

And based upon that, I believe that the aggravating factors do outweigh

the mitigating factors. I believe the sentence is appropriate and well within the

range as prescribed by statute so the motion to reconsider is denied.”

This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant argues (1) the trial court failed to consider relevant factors

in mitigation, (2) the court relied on an incorrect sentencing range by considering defendant’s

extended-term eligibility, (3) the court erred in considering defendant’s extended-term eligibility

-5- as an aggravating factor, and (4) the cumulative effect of these errors resulted in an unfair

sentencing hearing.

¶ 19 A. Mitigation

¶ 20 Defendant argues the trial court erred by failing to consider relevant factors in

mitigation, including the statutory mitigating factors that (1) defendant did not cause or threaten

serious harm and (2) defendant did not contemplate his conduct would cause or threaten serious

harm. See 730 ILCS 5/5-5-3.1(a)(1), (2) (West 2018). Defendant also contends the court failed to

consider other mitigating circumstances, including that he pled guilty, maintained employment

while he was on probation, complied with some of the terms of his prior sentence of probation,

and helped support Miles and her husband. Defendant contends the court’s comment that “[t]here

[were] no *** mitigating factors in this case” showed it failed to consider the foregoing

mitigating factors.

¶ 21 A trial court has broad discretion in imposing a sentence. People v. Patterson, 217

Ill. 2d 407, 448 (2005). “The trial court must base its sentencing determination on the particular

circumstances of each case, considering such factors as the defendant’s credibility, demeanor,

general moral character, mentality, social environment, habits, and age.” People v. Fern, 189 Ill.

2d 48, 53 (1999). “It is also required to consider statutory factors in mitigation and aggravation;

however, ‘the court need not recite and assign a value to each factor it has considered.’ ” People

v. Pina, 2019 IL App (4th) 170614, ¶ 19 (quoting People v. McGuire, 2017 IL App (4th) 150695,

¶ 38). The sentencing court may not refuse to consider relevant evidence presented in mitigation,

but it may determine the weight to give to such evidence. People v. Markiewicz, 246 Ill. App. 3d

31, 55 (1993). “[I]t is presumed that the trial court considered the evidence in mitigation absent

any contrary indication in the record.” People v. Anderson, 325 Ill. App. 3d 624, 637 (2001).

-6- ¶ 22 “On review, the sentence imposed by the trial court will not be reversed absent an

abuse of discretion.” Pina, 2019 IL App (4th) 170614, ¶ 20. “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.’ ” Id. (quoting Fern, 189 Ill. 2d at 54; People v. Alexander, 239 Ill. 2d 205, 212 (2010)).

¶ 23 We find the record does not show the trial court failed to consider relevant

mitigating evidence. We acknowledge the trial court stated at the sentencing hearing, “There are

no *** mitigating factors in this case. There just aren’t any.” However, when viewed in context

of all the court’s comments at the sentencing hearing, it appears to us the court was specifically

considering whether any of the statutory factors in mitigation set forth in section 5-5-3.1(a) of

the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3.1(a) (West 2018)) applied. The court

had previously stated that there were “a number of factors and other matters that the statute

direct[ed] the court to consider” (emphasis added) and that it was going to discuss some of the

factors that “[stood] out.” The court proceeded to note the seriousness of the offense and three

statutory factors in aggravation, including defendant’s prior criminal record, the fact that

defendant was on probation at the time of the instant offense, and the need for deterrence. See id.

§ 5-5-3.2(a)(3), (7), (12). The court then stated it found there were no mitigating factors in the

case. At the hearing on the motion to reconsider, the trial court again stated that it had previously

discussed the statutory factors that “stood out,” but that it had considered all the factors it was

required to consider. Based on the totality of the court’s comments, we conclude the court was

specifically referring to statutory mitigating factors when it stated there were no mitigating

factors in the case.

-7- ¶ 24 The trial court’s finding that no statutory factors in mitigation applied was not an

abuse of discretion. Defendant contends that two statutory mitigating factors applied—namely,

that (1) his conduct neither caused nor threatened serious physical harm to another (id.

§ 5-5-3.1(a)(1)) and (2) he did not contemplate his conduct would cause or threaten serious

physical harm to another (id. § 5-5-3.1(a)(2)). However, the factual basis for the plea indicated

defendant fled from a police officer in a vehicle at a speed exceeding 100 miles per hour. The

trial court could have reasonably found this conduct threatened serious physical harm to the

officer pursuing defendant and that defendant understood the threat his actions posed.

Accordingly, the court did not abuse its discretion in failing to find these mitigating factors

applied.

¶ 25 We also find the record does not support defendant’s argument that the court

erred in failing to consider non-statutory mitigating circumstances. The court stated it

“appreciate[d]” defense counsel’s argument concerning the mitigating circumstances present in

this case. This indicated the court had considered counsel’s mitigation argument concerning

defendant’s assistance to Miles and her husband, his employment history, and his partial

compliance with the terms of his prior sentence of probation. The court concluded the matters

argued by defense counsel were not “actual factors in mitigation,” which, as we previously

discussed, appears to be a specific reference to statutory factors in mitigation. The court clarified

at the hearing on the motion to reconsider sentence that it had considered all the factors it was

required to consider, and it found the aggravating factors outweighed the mitigating factors.

While it would have eliminated any confusion had the court specifically stated it was referring to

the absence of statutory factors in mitigation, as opposed to non-statutory mitigation evidence,

we think our interpretation of its comments is reasonable. Considering the entirety of the court’s

-8- sentencing comments, it appears the court considered the mitigating circumstances asserted by

the defendant but afforded them little or no weight.

¶ 26 We find no affirmative showing the trial court failed to adequately consider the

mitigating circumstances. Therefore, defendant has not overcome the presumption the court

considered all mitigation evidence present in the record. See People v. Flores, 404 Ill. App. 3d

155, 158 (2010). We conclude the court did not abuse its discretion in its assessment of the

factors in mitigation and aggravation in this case. See Pina, 2019 IL App (4th) 170614, ¶ 20.

¶ 27 B. Extended-Term Sentencing—Incorrect Range

¶ 28 Defendant next argues the trial court erred by relying on an incorrect sentencing

range when it stated defendant was eligible for extended-term sentencing. Defendant contends

the court lacked authority to impose an extended-term sentence because, at the time of his guilty

plea, the court advised him he would be subject to a sentencing range of one to three years’

imprisonment and did not advise him that he could receive an extended-term sentence.

¶ 29 Defendant acknowledges he has forfeited this argument by failing to raise it in the

trial court but argues we should consider his claim under the second prong of the plain-error

doctrine. “ ‘[S]entencing errors raised for the first time on appeal are reviewable as plain error if

(1) the evidence was closely balanced or (2) the error was sufficiently grave that is deprived the

defendant of a fair sentencing hearing.’ ” People v. Williams, 2018 IL App (4th) 150759, ¶ 16

(quoting People v. Ahlers, 402 Ill. App. 3d 726, 734 (2010)). In addressing a claim of plain error,

we first determine whether error occurred at all. People v. Hood, 2016 IL 118581, ¶ 18.

¶ 30 Section 5-8-2(a) of the Code (730 ILCS 5/5-8-2(a) (West 2018)) provides that the

trial court may not impose an extended-term sentence unless one of the factors set forth in

section 5-5-3.2 of the Code (id. § 5-5-3.2) is found to be present. Defendant does not dispute the

-9- aggravating factor described in section 5-5-3.2(b)(1)—being convicted of the same or greater

class of felony within 10 years of the instant conviction—was present. See id. § 5-5-3.2(b)(1).

Instead, defendant focuses on section 5-8-2(b), which states:

“(b) It the conviction was by plea, it shall appear on the record that the

plea was entered with the defendant’s knowledge that a sentence under this

Section was a possibility. If it does not so appear on the record, the defendant

shall not be subject to such a sentence unless he is first given an opportunity to

withdraw his plea without prejudice.” id. § 5-8-2(b).

¶ 31 We find no error occurred in this case when the trial court considered the fact that

defendant was eligible for an extended-term sentence at the sentencing hearing before imposing

a three-year sentence. The court did not consider an incorrect sentencing range, as defendant

claims, because defendant was, in fact, eligible for an extended-term sentence. The PSI shows he

was convicted of resisting a peace officer, a Class 4 felony, less than 10 years prior to his

commission of the Class 4 felony of aggravated fleeing or attempting to elude a peace officer in

the instant case. See id. § 5-5-3.2(b)(1). The fact that defendant was not admonished of his

eligibility for an extended-term sentence at the time of his guilty plea did not remove the trial

court’s authority to impose an extended-term sentence. Rather, pursuant to section 5-8-2(b) of

the Code (id. § 5-8-2(b)), the trial court had the authority to impose an extended-term sentence if

it first gave defendant the opportunity to withdraw his guilty plea without prejudice. Nothing in

section 5-8-2(b) prohibited the court from considering the fact that defendant was eligible for an

extended-term sentence in reaching its sentencing determination.

¶ 32 We reject defendant’s reliance on People v. Johns, 229 Ill. App. 3d 740, 743

(1992), for the proposition that “the trial court is limited in sentencing by the maximum penalty

- 10 - upon which the defendant had originally been admonished.” The court in Johns, following the

revocation of the defendant’s prior sentence of probation for the same offense, imposed a six-

year prison sentence when it had originally advised the defendant he faced a maximum of only

five years. Id. at 741-42. The appellate court held it was error for the trial court to resentence the

defendant to a greater term of imprisonment than what it had previously admonished was the

maximum. Id. at 743-44. Here, the court sentenced defendant to a non-extended three-year

prison term, which was not greater than what he had been admonished was the maximum. It does

not matter that the court mentioned defendant could have faced an extended-term prison

sentence—a sentence defendant was eligible to receive—before ultimately sentencing him to a

non-extended term.

¶ 33 We also reject defendant’s reliance on People v. Hurley, 277 Ill. App. 3d 684

(1996). In Hurley, the trial court mistakenly believed the defendant was eligible for an

extended-term prison sentence and ultimately imposed a non-extended-term sentence. Id. at 686-

87. The Hurley court found the trial court’s mistaken belief arguably influenced the sentence

because the court’s comments showed it considered defendant’s eligibility for an extended-term

sentence as a reference point in determining what sentence to impose. Id. at 687. The court

remanded the matter for a new sentencing hearing “[b]ecause the trial court utilized an erroneous

view of the permissible sentencing range.” Id. at 687-88.

¶ 34 Here, unlike in Hurley, the trial court did not “utilize[ ] an erroneous view of the

permissible sentencing range” Id. In the instant case, defendant was eligible for extended-term

sentencing and the court’s consideration of his extended-term eligibility was not tantamount to a

misunderstanding of the permissible sentencing range.

- 11 - ¶ 35 We conclude that the court did not err by considering defendant’s extended-term

eligibility at the sentencing hearing and, accordingly, no plain error occurred. See Hood, 2016 IL

118581, ¶ 18 (quoting People v. Smith, 372 Ill. App. 3d 179, 181 (2007)) (“ ‘[W]ithout error,

there can be no plain error.’ ”).

¶ 36 C. Extended-Term Sentencing—Aggravation

¶ 37 Defendant also argues the trial court erred in considering his extended-term

eligibility in aggravation as indicative of the serious nature of the offense. Defendant argues his

extended-term eligibility was not itself an aggravating factor and was irrelevant to the

seriousness of the instant offense, as his eligibility for an extended-term sentence could only

have been based on his prior criminal history. Our review of the record indicates the court did

not find defendant’s eligibility for an extended-term sentence itself to be an aggravating factor,

but the court did factor it into its consideration of the seriousness of the offense in aggravation.

¶ 38 Even if we were to accept defendant’s argument that the trial court erred in

finding that his extended-term eligibility bore on the seriousness of the instant offense because it

was related to his criminal history rather than the nature of the offense, such error would not rise

to the level of second-prong plain error. It was proper for the court to consider the serious nature

of the offense in sentencing defendant (see People v. Weatherspoon, 394 Ill. App. 3d 839, 862

(2009)), and the court’s analysis of the seriousness of the offense was based on more than

defendant’s extended-term eligibility. Also, as we have discussed, it was not improper for the

court to generally consider that defendant was eligible for an extended-term sentence during the

sentencing hearing. While the trial court was arguably mistaken in finding that defendant’s

eligibility for an extended-term sentence was relevant to the seriousness of the present offense,

- 12 - this was not an error “ ‘sufficiently grave that it deprived the defendant of a fair sentencing

hearing.’ ” Williams, 2018 IL App (4th) 150759, ¶ 16 (quoting Ahlers, 402 Ill. App. 3d at 734).

¶ 39 D. Cumulative Error

¶ 40 Defendant finally argues the cumulative effect of the trial court’s errors deprived

him of a fair sentencing hearing. While errors individually may not necessitate a reversal, such

errors considered together may have the cumulative effect of denying a defendant a fair trial or

sentencing hearing. See People v. Emerson, 189 Ill. 2d 436, 513-14 (2000) (considering a

cumulative-effect argument as to alleged errors at a capital-sentence hearing); People v. Speight,

153 Ill. 2d 365, 376 (1992) (considering a cumulative-effect argument as to alleged trial errors).

Here, however, we have found that only one of defendant’s claims of error arguably amounted to

error. As we have not found that multiple errors occurred, no cumulative error exists.

¶ 41 III. CONCLUSION

¶ 42 For the reasons stated, we affirm the trial court’s judgment.

¶ 43 Affirmed.

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