People v. Schumann

2022 IL App (2d) 210485-U

• Court: Appellate Court of Illinois
• Decided: September 12, 2022
• Docket: 2-21-0485
• Status: Unpublished

Opinion

2022 IL App (2d) 210485-U No. 2-21-0485 Order filed September 12, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of McHenry County. ) Plaintiff-Appellee, ) ) v. ) No. 20-CF-171 ) ANDREW N. SCHUMANN, ) Honorable ) Robert A. Wilbrandt Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Jorgensen and Birkett concurred in the judgment.

ORDER

¶1 Held: In finding in aggravation that defendant’s conduct caused “serious harm” to the victim, the trial court did not rely on a factor inherent in the offense of aggravated battery based on great bodily harm.

¶2 Defendant, Andrew N. Schumann, appeals from his sentence of four years’ imprisonment

for aggravated battery (720 ILCS 5/12-3, 3.05(1)(a) (West 2018) (great bodily harm)). He argues,

as a matter of plain error, that the trial court at sentencing improperly considered in aggravation

the harm to the victim—a factor inherent in the offense. We hold that defendant has failed to meet 2022 IL App (2d) 210485-U

his burden to show that the trial court relied on harm inherent in the offense. As defendant has not

shown error, he has not shown plain error. Thus, we affirm.

¶3 I. BACKGROUND

¶4 The State indicted defendant on one count of aggravated battery based on great bodily

harm. The indictment alleged that defendant punched Crystal Schleehauf in the face, breaking her

nose. At defendant’s jury trial, the evidence showed that, on the night of August 10, 2019,

defendant came to Schleehauf’s home with his girlfriend, Christina Kent, who was the daughter of

Schleehauf’s boyfriend. For reasons not fully established, defendant repeatedly struck Schleehauf

in the face with his fist.

¶5 According to the treating physician Natalie Dubuvoy, Schleehauf had “significant bruising

around both eyes and cheeks[,] *** some abrasions *** on her face[,] and *** one deeper cut

under her left eye.” She also had bleeding in her left eye. A computerized axial tomography

(CAT) scan showed a fractured left nasal bone—a broken nose. Dubuvoy repaired the cut under

Schleehauf’s eye with skin glue—an alternative to stitches—and a line of adhesive strips intended

for closing cuts. Dubuvoy testified that the cut might leave a permanent scar.

¶6 Schleehauf testified that—in addition to the injuries Dubuvoy documented—defendant’s

blows knocked out one of her front teeth and loosened other teeth. She had to have all the loose

teeth extracted. Further, her injured eye was still painful and frequently dripped fluid.

¶7 The jury found defendant guilty of the sole charge.

¶8 At the sentencing hearing, the State noted that aggravated battery causing great bodily harm

is a Class 3 felony (720 ILCS 5/12-3.05(h) (West 2018)) with a base sentencing range of two to

five years’ imprisonment (730 ILCS 5/5-4.5-40(a) (West 2018)). Although arguing that defendant

was eligible for an extended term due to his prior convictions, the State asked for a prison term

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(four years) within the base sentencing range. The State contended that the primary aggravating

factor was defendant’s extensive criminal history, while another pertinent aggravating factor was

that defendant’s “conduct caused or threatened serious harm.”

¶9 Schleehauf gave an oral victim-impact statement. She represented that (1) defendant’s

blows to her face “broke [her] nose and [her] eye,” (2) one of her facial bones was still “kind of

cracked,” (3) her facial scar hurt, (4) her eye continued to drip, (5) she lost “two more” teeth (since

her trial testimony) and now needed an entire upper denture, and (6) she was experiencing ongoing

stress and loss of sleep.

¶ 10 Defense counsel began his argument in mitigation by contending that defendant did not

intend to cause harm:

“I think it’s clear that my client did not contemplate his criminal conduct at all or that it

would cause or threaten serious physical harm to another.

Your Honor, my client’s record clearly shows that he’s a nonviolent offender.

Granted, he’s a drug abuser and has a serious alcohol problem, but he is not a violent

offender.

So I think judging from the record and my client’s allocation [sic], it is clear that,

you know, he had no idea that this was going to happen even though he was drinking and

taking pills, because it—obviously, there’s no indication that this had happened in the

past.”

Counsel further argued that, because defendant’s drug use led to the offense, he would be unlikely

to reoffend if he received appropriate treatment.

¶ 11 The court imposed a sentence of four years’ imprisonment. The court found that defendant

was not extended-term eligible, because the record did not show the seriousness of his out-of-state

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offenses. The court found three aggravating factors. First, it found that “defendant’s conduct did

cause or threatened to cause serious harm to another.” See 730 ILCS 5/5-5-3.2(a)(1) (West 2018).

The court elaborated: “I think Mr. [sic] Schleehauf’s statement and her permanent scarring would

be serious harm, and that she has taken the time to even display that to the Court.” Second, the

court noted defendant’s criminal history. See id. § 5-5-3.2(a)(3). Third, it deemed that a sentence

of incarceration was necessary to deter others. See id. § 5-5-3.2(a)(7).

¶ 12 Defendant filed a postsentencing motion but did not argue that the trial court had

improperly considered a factor inherent in the offense. The court denied the motion, and defendant

timely appealed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, defendant argues that, when the trial court considered in aggravation that

“defendant’s conduct did cause or threatened to cause serious harm to another” (see id. § 5-5-

3.2(a)(1)), it improperly considered a factor inherent in the offense of aggravated battery based on

great bodily harm. Defendant concedes that, because his postsentencing motion did not raise this

issue, he has forfeited ordinary review of the claim. See People v. Harvey, 2018 IL 122325, ¶ 15

(“In order to preserve a claim of sentencing error, both a contemporaneous objection and a written

postsentencing motion raising the issue are required.”). However, he contends that we can

nonetheless reach his claim under the plain-error doctrine (see People v. Hillier, 237 Ill. 2d 539,

545 (2010)). He asks that we vacate his sentence and remand the matter for a new sentencing

hearing.

¶ 15 To obtain relief under the plain-error doctrine, “a defendant must first show that a clear or

obvious error occurred.” Id. We agree with the State that the trial court did not err by considering

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in aggravation that defendant’s conduct caused “serious harm” (730 ILCS 5/5-5-3.2(a)(1) (West

2018)) to Schleehauf.

¶ 16 “[I]t is well established that a factor inherent in the offense should not be considered as a

factor in aggravation at sentencing.” People v. Dowding, 388 Ill. App. 3d 936, 942 (2009). This

rule arises from the presumption that the legislature weighs the factors inherent in offenses when

it sets sentencing ranges. People v. Conover, 84 Ill. 2d 400, 404-05 (1981). However, when a

factor inherent in an offense can occur in varying degrees, a sentencing court may consider the

degree to which the factor exceeded what is inherent in the offense:

“Sound public policy demands that a defendant’s sentence be varied in accordance

with the particular circumstances of the criminal offense committed. Certain criminal

conduct may warrant a harsher penalty than other conduct, even though both are technically

punishable under the same statute. Likewise, the commission of any offense, regardless of

whether the offense itself deals with harm, can have varying degrees of harm or threatened

harm. The legislature clearly and unequivocally intended that this varying quantum of

harm may constitute an aggravating factor. While the classification of a crime determines

the sentencing range, the severity of the sentence depends upon the degree of harm caused

to the victim and as such may be considered as an aggravating factor in determining the

exact length of a particular sentence, even in cases where serious bodily harm is arguably

implicit in the offense for which a defendant is convicted.” (Emphases in original.) People

v. Saldivar, 113 Ill. 2d 256, 269 (1986).

¶ 17 “Imposition of a sentence is normally within a trial court’s discretion [citation].” People

v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. “Nonetheless, the question of whether a court relied

on an improper factor in imposing a sentence ultimately presents a question of law to be reviewed

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de novo.” Id. This measure of de novo review is not inconsistent with either the “strong

presumption that the trial court based its sentencing determination on proper legal reasoning” or

our duty to “review the trial court’s sentencing decision with deference.” Dowding, 388 Ill. App.

3d at 942-43. The reason is that “[t]he burden is on the defendant to affirmatively establish that

the sentence was based on improper considerations” (id. at 943)—we give the trial court the benefit

of the doubt as we hold the defendant to that burden. However, the trial court has no discretion to

consider aggravating factors that are implicit in the offense. See Abdelhadi, 2012 IL App (2d)

111053, ¶ 9 (“Although the trial court has broad discretion when imposing a sentence, it may not

consider a factor implicit in the offense as an aggravating factor in sentencing.”); see also People

v. Burnette, 325 Ill. App. 3d 792, 809 (2001) (“[T]o treat the consideration of improper factors in

sentencing as an abuse of discretion seems flawed. How may a court have discretion to consider

a factor that is—by its very nature—excluded from such consideration?”).

¶ 18 Defendant has not persuaded us that his sentence was based on harm inherent in the offense

of aggravated battery based on “great bodily harm” (720 ILCS 5/12-3.05(a)(1) (West 2018)). His

argument is two-fold. He first contends that the trial court did not substantiate its finding of

“serious harm.” He says:

“[T]he trial court did not make any determination that the harm to Schleehauf exceeded the

level of harm inherent to the offense of aggravated battery. Nor did the court comment on

the force employed or the physical manner in which [defendant] caused the injuries.

Rather, the court only considered the fact that serious harm had occurred, which is a factor

inherent in the offense. Indeed, the only comment the court made regarding its finding that

[defendant’s] conduct caused serious harm to another, was that Schleehauf had ‘permanent

scarring’ which the court considered as evidence that serious harm occurred.”

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¶ 19 Because the trial court determined that “defendant’s conduct did cause or threatened to

cause serious harm to another” (see 730 ILCS 5/5-5-3.2(a)(1) (West 2018)), we presume that the

trial court found that defendant inflicted more than the “great bodily harm” (720 ILCS 5/12-

3.05(a)(1) (West 2018)) required for an aggravated battery conviction. Contrary to defendant’s

implication, the trial court was not required to furnish a specific basis for finding that defendant

caused “serious harm” to Schleehauf. “[A] trial court is not required to specify on the record the

reasons for a defendant’s sentence.” People v. Sauseda, 2016 IL App (1st) 140134, ¶ 22. That is,

“[w]hen 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.”

People v. McGuire, 2017 IL App (4th) 150695, ¶ 38. Accordingly, although the court neither

stated explicitly that the harm to Schleehauf exceeded what was inherent in the offense nor

commented on how defendant inflicted her injuries, the court’s silence in those respects did not

overcome the presumption that the court employed proper sentencing factors.

¶ 20 Defendant asserts that “serious harm” is implicit in the offense of aggravated battery based

on great bodily harm. Obviously, some harm is implicit in that offense, but “serious harm” cannot

be coextensive with “great bodily harm,” or else “serious harm” could never apply as an

aggravating factor in sentencing for that offense—which demonstrably is not the case. “[T]he

commission of any offense, regardless of whether the offense itself deals with harm, can have

varying degrees of harm or threatened harm.” (Emphasis added.) Saldivar, 113 Ill. 2d at 269.

Indeed, the degree of harm may be considered an aggravating factor “even in cases where serious

bodily harm is arguably implicit in the offense for which a defendant is convicted” (emphasis in

original) (id.), e.g., voluntary manslaughter (id. at 271), which involves death—the greatest of

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physical harms. Necessarily, then, the degree of harm may be considered in sentencing a defendant

for aggravated battery based on great bodily harm.

¶ 21 While the trial court was not required to cite specific grounds for its finding of “serious

harm,” the court did comment on the nature of Schleehauf’s injuries: “I think Mr. [sic]

Schleehauf’s statement and her permanent scarring would be serious harm, and that she has taken

the time to even display that to the Court.” In his opening brief as quoted above, defendant

mentions only the trial court’s reliance on Schleehauf’s permanent scarring. In his reply brief,

however, defendant recognizes that the trial court referenced not only the permanent scarring but

also Schleehauf’s victim impact statement. In that statement, she mentioned more than her broken

nose, which was the “great bodily harm” alleged in the indictment. She identified several other

physical or psychological effects of the beating, including the loss of additional teeth, which

necessitated an entire upper denture. The court might well have regarded the broken nose as the

“great bodily harm” supporting the aggravated battery conviction and the other injuries as

aggravating facts. Thus, we reject defendant’s argument that the court did not support its finding

of “serious harm.”

¶ 22 Defendant’s second argument is that, regardless of what the trial court found or what

reasons it gave, Schleehauf in fact did not suffer harm exceeding the “great bodily harm” needed

to convict him of aggravated battery. “Great bodily harm” eludes a precise legal definition. People

v. Doran, 256 Ill. App. 3d 131, 136 (1993). It is “a more serious or grave injury than ‘bodily

harm,’ which includes, but is not limited to, temporary or permanent lacerations, bruises or

abrasions.” Id.

¶ 23 In determining whether the aggravating factor of “serious harm” applies, “the sentencing

court compares the conduct in the case before it against the minimum conduct necessary to commit

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the offense.” People v. Hibbler, 2019 IL App (4th) 160897, ¶ 67. The court examines the nature

and circumstances of the offense, including the nature and extent of the offense elements. Saldivar,

113 Ill. 2d at 268-69.

¶ 24 Defendant argues:

“[T]he fact that Schleehauf had suffered scarring from her injuries does not exceed the

level of harm that is inherent in the offense. [Citation.] Similarly, nothing in Schleehauf’s

victim impact statement, which stated that Schumann broke her nose, scarred her, and

described th[e] pain she felt, rose to the level of harm beyond what is already inherent in

the offense. Indeed, the fact that she suffered a broken nose was the sole allegation in the

indictment for how [defendant] had caused great bodily harm.”

¶ 25 The first two sentences are simply conclusory statements about the severity of Schleehauf’s

injuries. Aside from citing the definition of “great bodily harm,” defendant does not develop or

support these assertions. Also, defendant omits some injuries Schleehauf identified in her victim

impact statement—most significantly, the loss of additional teeth necessitating an entire upper

denture. If this extensive and permanent dental damage did not by itself exceed “great bodily

harm,” certainly the aggregate of Schleehauf’s injuries did.

¶ 26 Also, the fact that the State alleged only the broken nose in the indictment does not matter.

Presumably, the State selected that injury as a clear and easily proven instance of great bodily

harm. That choice in no way reflected how the State viewed the other injuries or limited the

aggravating facts on which the State could rely at sentencing.

¶ 27 We conclude that the trial court properly found in aggravation that Schleehauf suffered

“serious harm.” Because defendant has failed to show error, he has not shown plain error. See

People v. Hood, 2016 IL 118581, ¶ 18 (without error, there can be no plain error).

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¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the sentence imposed by the circuit court of McHenry

County.

¶ 30 Affirmed.

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