No. 2--95--0663
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
v. ) No. 90--CF--100
TRACY TAYLOR, ) Honorable
) James T. Doyle
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Following a jury trial, the defendant, Tracy Taylor, was
convicted of one count of aggravated criminal sexual assault and
was sentenced to a term of 30 years' imprisonment in the Department
of Corrections. The defendant appealed, and this court reversed
his conviction and remanded the cause for a new trial. See People
v. Taylor, 244 Ill. App. 3d 460 (1993). Following a second jury
trial, the defendant was again convicted of aggravated criminal
sexual assault and was sentenced to a term of 35 years'
imprisonment.
The defendant appeals raising the following issues: whether
the trial judge should have recused himself from all proceedings
which occurred after the jury began deliberations; and whether the
increase in the defendant's sentence from 30 to 35 years'
imprisonment was improper.
On October 11, 1994, following the defendant's second
conviction, the trial court held a sentencing hearing. The State
called several witnesses to testify in aggravation.
Susan Dahl testified that, on January 18, 1990, she was
working as a clerk in a convenience store when the defendant robbed
the store. In the course of the robbery, the defendant slapped her
in the face and told her that he had a gun.
Cameron Forbes, employed by the Illinois Department of
Corrections in the records department, testified as to the
defendant's penitentiary records for the time period between his
two trials in this cause. Mr. Forbes explained that an inmate
disciplinary report is referred to as a "ticket." There are major
tickets which would be for something like assaultive behavior while
a minor ticket would be for not reporting for school or being slow
in locking up. Minor tickets are sent to the program unit which is
limited to enforcing minor discipline. Major tickets are sent to
the adjustment committee which has the latitude to dismiss the
ticket or impose a proper punishment following a hearing. A major
ticket would be any ticket where an inmate received a C grade
demotion, a segregation placement, or a loss of good-conduct
credits for the violation.
Mr. Forbes further testified that the records reflect that the
defendant received one major ticket in his first six months of
incarceration and nine thereafter. He also received 12 minor
tickets during his incarceration. The records further reflected
that the defendant lost good-time credits on two occasions.
According to Forbes, of the major tickets the defendant received,
it appeared that at least two were for assaultive behavior.
On cross-examination, Mr. Forbes testified that neither of the
two incidents of assaultive behavior were directed against a
correctional officer. He acknowledged that there was gang activity
at the Menard facility, to which the defendant had been transferred
from the Joliet facility, but denied that the gangs had more
control over the day-to-day activities of the inmates than the
guards. He further denied that fighting was very common at Menard
or Joliet. Mr. Forbes acknowledged that the good-time credits that
the defendant lost as a result of those incidents were in fact
restored to him as of January 22, 1992.
Mr. Forbes further testified that other "major" tickets that
the defendant received were for giving extra meat to another inmate
while the defendant was on the serving line; failing to complete an
assigned detail; and being in a cell with another inmate where
music was being played too loud. However, Mr. Forbes was unsure as
to whether all these were included as major tickets in his total of
nine for the defendant since in certain cases a minor punishment
was imposed. Mr. Forbes did agree that the defendant had only been
involved in two incidents of assaultive behavior since his
incarceration.
Mr. Forbes further testified that the defendant's records
showed no violations from November 1992 to November 1993 when he
was returned to the Kane County jail to await his new trial. In
addition, the records reflected that the defendant had received a
"low risk" status and had been recommended by the warden for
transfer to a less secure facility. The transfer was denied solely
on the basis of the amount of time remaining to be served on the
defendant's sentence.
On redirect examination, Mr. Forbes testified that, in one of
the assault incidents, the defendant and two others jumped another
inmate and began to beat him up. The defendant was also "ticketed"
for stealing syrup, which the inmates would use to make alcohol.
On re-cross-examination, Mr. Forbes testified that no criminal
charges were placed against the defendant while he was in the
Department of Corrections.
The trial court then questioned Mr. Forbes as to why the 30
days of good-time credit that the defendant lost as a result of the
above assault incident were restored to him. Mr. Forbes explained
that, under Department of Corrections' procedures, after a certain
period of time has elapsed without similar conduct occurring, the
good-time credit lost is restored to the inmate, unless the time
was lost in conjunction with an escape in which case it is not
restored.
Thomas Oatman testified that the victim and he were living
together at the time of the offense; they are now married. He
described the impact that the offense had on his working life as
well as on the victim and their social life. At the time that the
cause was remanded for a second trial, the victim received eight
obscene telephone calls. The calls were traced to the Department
of Corrections facility at Danville. Mr. Oatman denied knowing
anyone at the Danville facility or that he gave anyone at the
Danville facility his telephone number.
On cross-examination, Mr. Oatman acknowledged that he had a
published telephone number.
The defense then called Stacy Taylor, the defendant's brother,
and Marcia Green, the defendant's mother, to provide testimony in
mitigation.
In argument following the testimony, the State urged the trial
court to impose a longer sentence than had been originally imposed
on the defendant based upon his conduct while incarcerated in the
Department of Corrections. The defense responded that the original
trial judge had found that the defendant was not subject to an
extended-term sentence and instead had imposed the maximum
nonextended-term sentence of 30 years' imprisonment on the
defendant. Therefore, under the resentencing statute, the
defendant's new sentence could not exceed the original sentence.
The defense further argued that the incidents that the defendant
was involved in while he was incarcerated were for the most part
minor and occurred early in his incarceration.
In pronouncing sentence, the trial judge stated that the
offense in this cause was the most brutal of its type that he had
ever heard or seen. He specifically found that, based upon the
testimony and the evidence, the offense here was accompanied by
exceptionally brutal behavior and was indicative of wanton cruelty.
The trial judge further found no basis for reducing the original
sentence of 30 years' imprisonment. Citing the testimony regarding
the defendant's conduct during his incarceration, the trial court
found that he could impose a higher sentence than the original 30-
year sentence. After considering the factors in aggravation and
balancing them with the factors in mitigation, the trial court
imposed a sentence of 35 years' imprisonment in the Department of
Corrections.
On November 10, 1994, the defendant filed a motion to reduce
his sentence. Inter alia, the motion alleged that the defendant's
rights to due process were violated when the trial judge
(hereinafter Judge Doyle) engaged in conversation with the victim's
family during jury deliberations at the defendant's second trial.
The motion further alleged that the violation was compounded by the
fact that Thomas Oatman, one of the family members, subsequently
testified at the defendant's sentencing hearing. The defendant
also filed an addition to his motion for a new trial, which had
already been denied on October 11, 1994, alleging the same due
process violation. The case was transferred to Judge Barry Puklin
for a hearing on those particular allegations.
On May 5, 1995, a hearing was conducted by Judge Puklin on the
motion to reduce sentence and the addition to the motion for a new
trial, limited to the allegations surrounding Judge Doyle's alleged
conversation with the victim's family. Prior to the beginning of
the hearing, the parties stipulated that a conversation took place
in the cafeteria of the Kane County judicial center, at which time
Judge Doyle and members of the victim's family were present and
that the conversation was of some duration, not merely a
conversation in passing.
Don Zuelke, the assistant public defender representing the
defendant, testified that on June 15, 1994, after jury
deliberations began on the defendant's cause, he went into the
cafeteria. He proceeded to sit at a table with Bill Catching, a
reporter with the Beacon News. At the time, the cafeteria was
open, and members of the general public were present. After a
while, Mr. Catching commented to him that Judge Doyle was sitting
in another part of the cafeteria with the victim's family. At that
time, Mr. Zuelke looked over and observed Judge Doyle standing by
a table where several of the victim's "supporters" (people who had
been presented during the trial) were seated and talking to these
people. He described the conversation as very amicable, friendly.
Although he did not time it, he estimated that the conversation was
at least 15 minutes in length. Mr. Zuelke subsequently learned
that one of the people at the table was the victim's husband when
he testified at the defendant's sentencing hearing. He did not
make an objection to Mr. Oatman testifying, hoping that Judge Doyle
would say something, but Judge Doyle did not. After speaking with
appellate counsel, Mr. Zuelke raised the issue in the motion to
reduce sentence and the addition to the motion for a new trial.
Mr. Zuelke noted that Judge Doyle had increased the defendant's
original sentence by five years.
On cross-examination, Mr. Zuelke acknowledged that Judge Doyle
had based the additional five years on the defendant's activities
since the time of his first conviction.
On redirect examination, Mr. Zuelke testified that he has
learned that Mr. Oatman is a Kane County employee working in data
processing.
Will Nelson testified that he is a friend of Tom Oatman's and
that his (Nelson's) wife is the victim's best friend. He was
present for the defendant's entire trial. After the jury retired
to deliberate, Tom Oatman, Karen, the victim's sister, and he went
to the cafeteria. While they were there, Judge Doyle came by and
spoke to them. Mr. Nelson had met Judge Doyle previously at a
little league game. Other than at the game, he had never spoken to
Judge Doyle.
Mr. Nelson testified further that Judge Doyle recognized him,
said hello or something to that effect, and pulled up a chair,
sitting between the table at which Mr. Nelson was sitting and
another table. Judge Doyle primarily spoke to Mr. Nelson. They
spoke about little league baseball, that Judge Doyle had previously
been a sheriff, and that the judge's wife was attending or had just
finished law school. Mr. Nelson asked who won the arguments at his
house. Later, Mr. Nelson asked about the number of trials in Kane
County, and Judge Doyle remarked that there were a lot of trials in
Kane County. Mr. Nelson brought Mr. Oatman into the conversation
by telling Judge Doyle that Mr. Oatman would agree with the judge.
Mr. Nelson further testified that he did not introduce Mr.
Oatman to Judge Doyle nor did Mr. Oatman introduce himself to Judge
Doyle. The defendant's case was never discussed. There was no
indication that Judge Doyle knew who Mr. Oatman was. The
conversation lasted about 20 minutes. It ended when someone
announced that the jury was back.
Following argument, Judge Puklin denied the motion to reduce
sentence and the addition to the motion for a new trial, based upon
the allegations as to Judge Doyle's conduct. Following a hearing
before Judge Doyle on the remaining allegations of the motion to
reduce sentence, Judge Doyle denied the motion, and this appeal
followed.
The defendant contends that Judge Doyle's conversation with
members of the victim's family created the appearance of
impropriety and that the judge's failure to recuse himself from
further proceedings in the defendant's cause entitles the defendant
to a new trial or, in the alternative, to a new sentencing hearing
before a different judge.
At the outset, the State contends that by failing to raise the
issue at the time the jury returned its verdict or to object at the
time Tom Oatman testified at the sentencing hearing the defendant
has waived this issue for purposes of appeal. People v. Enoch, 122
Ill. 2d 176 (1988) (preservation of an issue for purposes of appeal
requires both an objection at trial and a written post-trial
motion). However, since this issue may impact on the sentence the
defendant received thus violating one of his fundamental rights, we
will consider the issue to determine if plain error was committed
here. People v. Moncrief, 276 Ill. App. 3d 533, 535 (1995).
A judge must make every effort to avoid the appearance of
impropriety during his activities that may reflect on his judicial
conduct. People v. Dunigan, 96 Ill. App. 3d 799, 812 (1981).
Private conversations concerning a case are impermissible, since a
defendant is unable to rebut information obtained from members of
the public and considered by the judge. Dunigan, 96 Ill. App. 3d
at 812.
The facts in Dunigan are somewhat similar to the facts in the
present cause. After the jury had reached a verdict in Dunigan's
case, the trial judge, at the invitation of an assistant State's
Attorney, had stopped at a tavern. The victims in the cause
stopped by the judge's table for a few moments, discussed
generalities, and then left. The meeting was by chance, and the
judge stated that he did not discuss Dunigan's sentence or the
outcome of the cause with the victims. The assistant State's
Attorney confirmed the judge's recollection of the conversation.
In addressing Dunigan's argument that the judge's
"socializing" with the victims required him to recuse himself from
the sentencing procedures, the reviewing court noted that there was
no evidence that the judge considered or received any information
from the victims at their brief, unplanned encounter. "The
question then becomes whether the trial judge was required to
recuse himself by virtue of the meeting itself, in the absence of
evidence that the case was discussed." Dunigan, 96 Ill. App. 3d at
812.
The Dunigan court relied on the supreme court decision in
People v. Hicks, 44 Ill. 2d 550 (1970). In Hicks, our supreme
court held that a judge's conversation with an individual, who was
allegedly a relative of the victim and who went to the judge's
chambers of her own volition to obtain a front row seat in the
courtroom, did not supply cause for the judge's disqualification or
give rise to the probability of unfairness which might affect the
trial. The Hicks court stated:
"To say that any involuntary meeting or conversation, no
matter how trivial, gives rise to disqualification would
present too easy a weapon with which to harass the
administration of criminal justice and to obtain a
substitution of judges." Hicks, 44 Ill. 2d at 557.
The Dunigan court agreed with Hicks and held that the
involuntary meeting between the judge and the victims in that cause
did not, in and of itself, disqualify the judge from presiding at
Dunigan's sentencing hearing. The Dunigan court stated further as
follows:
"Our review of the record reveals no malice directed toward
[Dunigan] by the trial judge as a result of his contact with
the [victims], and it is unlikely that this single event
resulted in such an increased level of emotional involvement
as to make prejudice likely and disqualification necessary."
Dunigan, 96 Ill. App. 3d at 813.
In the cause before us, there was no evidence that the meeting
between Judge Doyle and the victim's family and supporters was
anything but a chance encounter. There is also no evidence that
any details of the defendant's case were discussed during the
conversation, nor is there any evidence that this conversation
increased Judge Doyle's involvement with the case such that it
would influence him against the defendant. Applying the analysis
set forth in Dunigan, we conclude that the defendant was not
entitled to a new trial or a new sentencing hearing before a
different judge.
The defendant's reliance on People v. Bradshaw, 171 Ill. App.
3d 971 (1988), is misplaced. In Bradshaw, during the trial, a
deputy sheriff, the mother of the victim, sent a note to the trial
judge, asking to see him. Upon receiving the note, the trial judge
recessed the trial and met with the deputy sheriff in his chambers.
According to the trial judge, after he ascertained what the deputy
sheriff's relationship to the cause was, he terminated the
conversation.
On appeal, the reviewing court held that the trial court
should have recused himself from the cause following his ex parte
conversation with the victim's mother. The court noted that a
deputy sheriff is an officer of the court and plays an integral
role in the administration of justice. There was evidence that
other persons witnessed the deputy sheriff pass the note to the
trial judge who was presiding over a cause in which her daughter
was the victim. The witnesses also observed the trial judge enter
his chambers with the deputy sheriff. Even if the conversation was
terminated as soon as the trial court realized the relationship of
the deputy sheriff to the cause before him, the reviewing court
concluded that the appearance of impropriety had already been
created.
Unlike the cause before us, in Bradshaw, the meeting was
deliberately sought by the deputy sheriff. It was witnessed by
persons in the courtroom who knew the deputy sheriff was related to
the victim and who observed her go into chambers with the trial
judge. The meeting took place in the judge's chambers, thus
conveying a secretive atmosphere to the meeting. In contrast, in
the cause before us, the meeting was accidental and unplanned. The
conversation took place in a public place. The other participants
in the conversation were private citizens. Finally, with the
exception of the assistant public defender, who might be expected
to take a different view, there was no testimony from other
individuals present in the cafeteria at the time the conversation
took place suggesting that even the appearance of impropriety was
created by Judge Doyle's conversation with the victim's family.
Even the assistant public defender did not raise the issue of the
conversation until after he spoke with appellate counsel. The
defendant suggests that the failure to raise the issue earlier
resulted from his counsel's reluctance to "taint his relationship
with Judge Doyle in all future trials." We are inclined to accord
that argument very little weight since, if it were true, it would
mean that the thought of displeasing a trial judge carries more
weight than presenting effective arguments on behalf of one's
client. More importantly, however, the assistant public defender
did in fact raise the issue, as soon as he discovered it might be
an issue, and the presentation of the argument did result in what
we would generously describe as a lively discussion between Judge
Doyle and counsel for the defendant and the State.
The defendant's reliance on People v. Mote, 255 Ill. App. 3d
757 (1994), is also misplaced. In that cause, the trial judge,
with Mote's permission, conferred with the victims to determine
whether they would approve of Mote being sentenced to a term of
probation rather than four years' incarceration. In determining
that Mote required a new sentencing hearing, the reviewing court
reaffirmed an earlier holding that private conversations between a
judge and members of the general public to assist the court in
determining the sentence to be imposed is reversible error. Mote,
255 Ill. App. 3d at 760. Again, in the cause before us, there is
no evidence that the conversation in question involved any aspect
of the defendant's cause.
A judge should avoid impropriety and the appearance of
impropriety in all of the judge's activities. 155 Ill. 2d R. 62.
This rule implies that it is the judge who must initiate the course
of conduct which creates a disfavorable public impression. People
v. Musso, 227 Ill. App. 3d 514, 518 (1992). Although it appears
from Will Nelson's testimony that Judge Doyle initiated the
conversation in this cause, nevertheless, the evidence in this
cause fails to establish that the conversation in this cause
"created a disfavorable public impression." No appearance of
impropriety was created by Judge Doyle's conduct in this cause. We
conclude, therefore, that Judge Puklin did not err in denying the
defendant's motion for a new sentencing hearing and his motion for
a new trial based on additional matters based upon the conversation
between Judge Doyle and the victim's family.
The defendant then contends that the increase in his sentence
from 30 years' to 35 years' imprisonment was improper. The
defendant was convicted of aggravated criminal sexual assault, a
Class X felony. See 720 ILCS 5/12--14 (West 1994). The maximum
nonextended term of imprisonment for a Class X felony is 30 years'
imprisonment. See 730 ILCS 5/5--8--1(a)(3) (West 1994). The range
for an extended-term sentence for a Class X felony is between 30
and 60 years' imprisonment. See 730 ILCS 5/5--8--2(a)(2) (West
1994).
The defendant's original sentence was 30 years' imprisonment,
the maximum nonextended term for the offense of aggravated criminal
sexual assault. The 35-year sentence imposed by Judge Doyle
reflected an additional five years based upon the defendant's
conduct while he was incarcerated between his first and second
trials. Judge Doyle relied on section 5--5--4 of the Unified Code
of Corrections (730 ILCS 5/5--5--4 (West 1994), which provides as
"Where a conviction or sentence has been set aside on
direct review or on collateral attack, the court shall not
impose a new sentence for the same offense or for a different
offense based on the same conduct which is more severe than
the prior sentence less the portion of the prior sentence
previously satisfied unless the more severe sentence is based
upon conduct on the part of the defendant occurring after the
original sentencing."
The defendant seeks to distinguish People v. Rivera, 166 Ill.
2d 279 (1995). In that cause our supreme court held that the trial
court could properly increase Rivera's original sentence of 60
years' imprisonment for first degree murder to 80 years'
imprisonment upon his retrial and conviction of the same offense
where Rivera had been convicted of unlawful use of a weapon in a
penal institution. Rivera, 166 Ill. 2d at 294. The defendant
argues that, unlike Rivera, he was never charged with or convicted
of a crime while incarcerated. The defendant further argues that
only two of the incidents involved assaultive behavior; that Mr.
Forbes could not provide any details as to one of those incidents;
and that the defendant's good-time credits, lost as a result of
those two incidents, were, in fact, restored to the defendant.
Finally, the defendant points out that the majority of the
"tickets" he received were for conduct not criminal in nature and
that he received them early in his incarceration.
Section 5--5--4 permits a trial court to increase a
defendant's sentence based upon conduct occurring after the
original sentence. Thus the trial court is not limited to
considering only criminal convictions or only conduct that rises to
the level of a criminal offense. In Rivera, our supreme court
stated:
"[The United States Supreme] Court in [North Carolina v.
Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969)]
reasoned that: 'A trial judge is not constitutionally
precluded, in other words, from imposing a new sentence,
whether greater or less than the original sentence, in the
light of events subsequent to the first trial that may have
thrown new light upon the defendant's "life, health, habits,
conduct, and mental and moral propensities." ' " Rivera, 166
Ill. 2d at 294.
An increased sentence after retrial may be proper if the court is
able to point to specific conduct on the part of defendants
occurring subsequent to their original sentencing, which warrants
a heavier sentence. Rivera, 166 Ill. 2d at 294-95; People v. Baze,
43 Ill. 2d 298, 303 (1969). The Rivera court noted that the
legislature incorporated the Pearce and Baze decisions in its
enactment of section 5--5--4. Rivera, 166 Ill. 2d at 295.
It is clear that, in imposing an increased sentence on the
defendant, the trial court relied on the testimony of Mr. Forbes
and the defendant's record of conduct while in the Department of
Corrections. It is also clear that the trial court properly relied
on evidence showing, at the least, the defendant's unwillingness to
follow the rules of the institution he was confined to and, at the
worst, a propensity to violence. The fact that the defendant later
did learn to follow the rules is commendable, but does not
eliminate his earlier violations from consideration by the trial
court. We note also that, for his conviction of criminal conduct
while incarcerated, Rivera received an additional 20 years'
imprisonment while the defendant in this cause received only an
additional 5 years, even though at least one of his "tickets"
involved an attack on another inmate.
We conclude that the trial court properly increased the
defendant's sentence from 30 to 35 years' imprisonment based upon
his conduct following his original sentencing,
In summary, we conclude that the defendant is not entitled to
a new trial or a new sentencing hearing. We further determine that
the trial court properly increased the defendant's sentence to 35
years' imprisonment.
The judgment of the circuit court of Kane County is affirmed.
Affirmed.
GEIGER, P.J., and INGLIS, J., concur.