People v. Velazquez

2019 IL App (2d) 170620-U

• Court: Appellate Court of Illinois
• Decided: December 19, 2019
• Docket: 2-17-0620
• Status: Unpublished

Opinion

2019 IL App (2d) 170620-U No. 2-17-0620 Order filed December 19, 2019

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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 Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-613 ) ARMANDO MORALES VELAZQUEZ, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Hudson and Bridges concurred in the judgment.

ORDER

¶1 Held: The trial court did not base defendant’s sentence on general factors implicit in the offense of predatory criminal sexual assault of a child. Affirmed.

¶2 Defendant, Armando Morales Velazquez, pleaded guilty to a single count of predatory

criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)). In exchange for his

plea, other charges were dismissed, and it was agreed that defendant would be sentenced to a prison

term of no less than eight years. Judge John J. Kinsella sentenced defendant to an 18-year prison

term. Defendant argues on appeal that Judge Kinsella placed undue weight on his own opinion of

sex offenses and failed to adequately consider mitigating factors. We affirm. 2019 IL App (2d) 170620-U

¶3 I. BACKGROUND

¶4 Defendant lived with the victim, T.M., and her family. T.M.’s father was defendant’s

cousin. As the factual basis for the plea, it was stipulated that, if the matter proceeded to trial, the

State would present evidence that, when T.M. was under the age of 13, defendant put his penis in

her anus.

¶5 A psychological evaluation indicated that there was not enough information to support a

diagnosis of pedophilic disorder, but additional information was necessary to completely rule out

such a diagnosis. Defendant’s presentence report indicated that he had been fined for possession

of open alcohol. He had also been arrested for soliciting a prostitute and public indecency, but the

charges were nol-prossed. Otherwise, defendant had no criminal history. According to the

presentence report, defendant participated in Alcoholics Anonymous, bible study, Catholic

worship, and an English-as-a-second-language program.

¶6 At defendant’s sentencing hearing, an investigator with the Du Page County Children’s

Advocacy Center testified that, pursuant to a court order, she eavesdropped on telephone

conversations between defendant and the victim’s mother. During one conversation, defendant

said that he was drunk and had been given “rock” when he sexually assaulted T.M. He thought

that he was having a sexual encounter with T.M.’s mother. The investigator testified that

“[defendant] stated that he had placed the tip of his penis into the anus of [T.M.] only after he ***

tripped over his feet and slipped.” With reference to another conversation, the investigator

testified:

“[Defendant] *** stated that [T.M.] would come into his room all the time and grab him

and that he didn’t know what to do. He then stated that she would trap him in the bathroom

while he was trying to pee and attempted to touch him there. He then further stated that on

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one occasion [T.M.] actually came into the bedroom and grabbed him and that when he

said no, *** [T.M.] actually said shut up and threatened to scream.”

¶7 In pronouncing sentence, Judge Kinsella stated that he was puzzled that the psychological

evaluation did not indicate that defendant was a pedophile. Judge Kinsella found that defendant’s

participation in Alcoholics Anonymous, bible study, and Catholic worship was a mitigating factor.

However, Judge Kinsella found it “particularly disgusting” that defendant had suggested that T.M.

“was somehow responsible for what happened.” He also stated:

“I do know from 40-some years, nearly 40 years in the business of crime, both prosecuting

and judging, that among the most common, sadly to say, background issues in young

women, particularly who come before the court with various issues of various types of

criminality, that a very common source of psychological problems or psychological

devastation in some cases stem from the sexual abuse/sexual assault of particularly young

females. We certainly see it with males as well, but—And I don’t pretend to quite

understand why or how it has such a devastating lifelong impact, but I have certainly seen

that it does. It’s a bell that cannot be unrung. What he did is what he did. That child will

deal with that all the way through her childhood into adulthood and [it] will probably

forever impact her ability to form normal human relationships with other people,

particularly other males and for that the defendant should feel great shame and I hope he

does because what you did to this little girl is disgusting and despicable. I’m not here to

engage in the forgiveness business, but it is also unforgivable.

The Court in balancing the positives that I alluded to at the beginning in terms of

what was argued, the defendant’s lack of any criminal history, his psychosexual evaluation,

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which I discussed as well as his efforts to better his situation in jail, do not outweigh the

severity of the crime at hand.

We talk about harm and what we sometimes forget to mention is that in essence

what this defendant did is he raped a 10-year-old, and that calls for punishment that fits

that crime.”

¶8 As noted, Judge Kinsella sentenced defendant to an 18-year prison term. Defendant moved

to reconsider, arguing that Judge Kinsella based his sentence “on [his] own opinion of child abuse

offenders.” In denying the motion, Judge Kinsella referred to our supreme court’s decision in

People v. Huddleston, 212 Ill. 2d 107 (2004). In Huddleston, the court discussed the impact of sex

offenses on child victims. The court cited literature identifying the long-term harm to a child

victim’s psychological, emotional, and sexual development. The court noted that, according to the

literature, “[p]sychological problems associated with sexual assault or abuse include sudden school

failure, unprovoked crying, dissociation, depression, insomnia, sleep disturbances, nightmares,

feelings of guilt and inferiority, poor self-esteem, and self-destructive behavior, including an

increased incidence of attempted suicide.” Id. at 136. Furthermore, “[c]orrelations have been

noted between child sexual abuse and problems in adulthood such as substance abuse, dangerous

sexual behaviors or dysfunction, inability to relate to others on an interpersonal level, and

psychiatric illness.” Id.

¶9 Judge Kinsella stated that the Huddleston court “recognized the very same considerations”

that he did in this case. He noted that, in our nonprecedential decision People v. Gates, 2017 IL

App (2d) 150748-U, where we reversed his sentencing decision, he had discussed the same

considerations. Judge Kinsella remarked that he could not believe that in Gates this court had not

mentioned Huddleston. Judge Kinsella added:

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“The comments in [Huddleston] are really no different than the comments I made in

[Gates] or in this case. And if the law is changed and the Supreme Court should revisit it,

then, perhaps, change the law.

But I’m going to follow Huddleston. I think it’s a proper reflection of weighing the

evidence in a case like this, and I don’t find Gates very instructive on any other point.”

Defendant filed a timely notice of appeal.

¶ 10 II. ANALYSIS

¶ 11 Citing People v. Henry, 254 Ill. App. 3d 899 (1993), and People v. Bolyard, 61 Ill. 2d 583

(1975), defendant argues that resentencing is necessary because “the trial court here clearly

expressed its personal distaste for the offense of which [defendant] was convicted.” Defendant

also cites People v. Romero, 2015 IL App (1st) 140205, People v. Miller, 2014 IL App (2d)

120873, People v. Clemons, 175 Ill. App. 3d 7 (1988), and People v. Wilson, 47 Ill. App. 3d 220

(1977), in support of his argument.

¶ 12 We first consider Romero and Henry. Defendant’s reliance on Romero is misplaced. As

we explained in People v. Peltz, 2019 IL App (2d) 170465, ¶ 30, Romero stands for the proposition

that a trial court may not base its sentencing decision on a finding of fact that is contrary to the

jury’s verdict. Nothing like that occurred here. In Henry, the trial court commented that the

defendant committed a “ ‘disgusting crime’ ” and that that was the reason for the sentence the court

imposed. Henry, 254 Ill. App. 3d at 904. The Henry court stated, “Based upon the clarity of the

trial court’s statement, we cannot say that the court did not rely upon its own opinion of the crime

when it sentenced defendant.” Id. at 905. The Henry court concluded that resentencing was

necessary “to ensure that defendant’s sentence is based only upon proper factors and not upon the

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trial court’s subjective feelings.” Id. In Peltz, we declined to follow Henry. We reasoned that

sentencing necessarily involves the formation of opinions. Peltz, 2019 IL App (2d) 170465, ¶ 33.

¶ 13 The remaining cases—Bolyard, Miller, Wilson, and Clemons—stand for the proposition

that a trial court may not base a sentencing decision on its personal feelings or opinions about a

class of offenses or offenders. As we observed in Peltz, the trial courts in those cases adhered to

personal policies that functioned as “self-imposed limits on their sentencing discretion.” Peltz,

2019 IL App (2d) 170465, ¶ 31. The trial courts in Bolyard, Miller, and Wilson categorically

denied probation to: (1) perpetrators of crimes involving physical or sexual violence (Bolyard, 61

Ill. 2d at 585); (2) first offenders who pleaded not guilty (Miller, 2014 IL App (2d) 120873, ¶ 12);

or (3) first offenders in the traffic of drugs (Wilson, 47 Ill. App. 3d at 222). The trial court in

Clemons adhered to a policy of denying motions to reconsider sentences unless the victim

consented. Clemons, 175 Ill. App. 3d at 13-14.

¶ 14 That is not the case here. It is a core principle of sentencing that an offender is entitled to

an individualized determination of the appropriate penalty for his or her conduct. See People v.

Mace, 79 Ill. App. 2d 422, 430 (1967). Policies such as those in Bolyard, Miller, Wilson, and

Clemons depart from that core principle; they depend on generalities about classes of defendants

rather than the facts of a particular case. However, here, the sentence was based on defendant’s

specific conduct. Defendant was not deprived of an individualized sentencing determination.

¶ 15 It is well established that, in weighing aggravating and mitigating factors, a court may not

consider factors that are implicit in the offense. People v. McCain, 248 Ill. App. 3d 844, 850

(1993). As we explained in People v. Garibay, 366 Ill. App. 3d 1103, 1110 (2006):

“Although the General Assembly fixes the range of sentences for a particular offense,

sentencing in Illinois is still individualized, and the trial court must base its decision on the

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particular facts and circumstances of the case. [Citation.] Consideration of circumstances

that are necessarily present in every instance of a particular offense—whether aggravating

or mitigating—would undermine individualized sentencing and would tend to skew

sentencing decisions systematically toward one end or the other of the range established

by the General Assembly.”

¶ 16 The State argues that it was appropriate for the trial court to rely on the Huddleston court’s

observations about the impact of sex offenses on child victims. Huddleston did not relax the rule

that factors implicit in the offense may not be considered in aggravation or mitigation. The issue

in Huddleston was whether a penal provision mandating a life sentence for offenders with multiple

convictions of predatory criminal sexual assault of a child was unconstitutional as applied to the

defendant in that case. The court noted that the General Assembly’s power to prescribe penalties

for defined offenses “necessarily includes the authority to prescribe mandatory sentences, even if

such sentences restrict the judiciary’s discretion in imposing sentences.” Huddleston, 212 Ill. 2d

at 129. However, that power is constrained by our state constitution’s proportionate-penalties

clause, which provides that “[a]ll penalties shall be determined both according to the seriousness

of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const.

1970, art. I, § 11. A penalty violates that provision “if it is cruel, degrading, or so wholly

disproportionate to the offense committed as to shock the moral sense of the community.”

Huddleston, 212 Ill. 2d at 130.

¶ 17 In reviewing the defendant’s as-applied challenge to the sentencing provision in question,

the court explained that “[a] holding that a statute is unconstitutional as applied does not broadly

declare a statute unconstitutional but narrowly finds the statute unconstitutional under the specific

facts of the case.” Id. at 131. Having thus framed its inquiry, the court, “[n]onetheless, [began]

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by considering whether the sentencing provision in question ‘is cruel, degrading, or so wholly

disproportionate to the offense committed as to shock the moral sense of the community’ ”

(Emphasis added.) Id. at 132 (quoting People v. Moss, 206 Ill. 2d 503, 522 (2003)). It was in that

context that the court examined, inter alia, the impact of sex offenses on child victims.

¶ 18 The issue in this case is not whether the penalty chosen by the General Assembly for

predatory criminal sexual assault of a child is proportionate to that offense. No one has suggested

otherwise. Rather, the trial court was called upon to determine what sentence within the range

established by the General Assembly was appropriate in light of the relevant factors in aggravation

and mitigation. The distinction between Huddleston and this case is obvious. Thus, Huddleston

is not relevant here.

¶ 19 We have held that it is improper to consider general societal harm from an offense as an

aggravating factor unless “the conduct of the defendant had a greater propensity to cause harm

than that which is merely inherent in the offense itself.” McCain, 248 Ill. App. 3d at 852.

Similarly, the general harm to child sex-offense victims as a class is not an appropriate sentencing

consideration unless the defendant’s conduct created a heightened risk of such harm. That said,

however, references to such harm are not always improper. Id. In McCain, which involved a drug

offense, we observed that “[i]t is important that defendants understand why they are subject to the

penalties provided by law and why they have received their particular sentences.” Id. We further

observed that “[c]ommenting on the problems caused by drug-related crime encourages

rehabilitation by providing a context in which a defendant may develop feelings of remorse.” Id.

Without discouraging courts from remarking about the societal harm that drug offenses cause, we

suggested that sentencing courts “attempt to segregate such general commentary from the

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balancing of sentencing factors.” Id. We see no reason, in a case like this one, to apply a different

analysis to generalities about the impact of sex offenses on child victims.

¶ 20 Here, the trial court’s comments about the impact on child victims of sexual assault were

merely an effort to enlighten defendant about why the penalty for such a crime is severe. See 720

ILCS 5/11-1.40(b) (West 2016) (sentencing range for offense is 6 to 60 years), and they were

sufficiently segregated from its balancing of the relevant factors. McCain, 248 Ill. App. 3d at 852.

At the hearing on defendant’s motion to reconsider, the court stated:

“The notion that I have a bias against sex offenders is, to me, absurd. What I do

have—not a bias for, but a belief in all the things that the Supreme Court said in

Huddleston. I believe they’re correct. I believe I followed those considerations in

balancing the weight of the evidence in [Gates] as well as this [case].” (Emphasis added.)

¶ 21 We view the court’s statement, in context, as a reiteration of its consideration of the

additional impact of defendant’s conduct on the victim beyond that inherent in the offense and in

light of the testimony that defendant had attempted to shift the blame to T.M. for his conduct. The

court’s original comments at sentencing are replete with reference to this defendant and his

conduct. The court did not abdicate its obligation to impose an individualized sentence. Nor did

it express comments about a class of all sex offenders or a class of defendants who commit crimes

against children. Again, the court articulated its individualized consideration of this defendant and

his conduct in this case.

¶ 22 Because the trial court did not base its sentencing decision on factors implicit in the offense

of predatory criminal sexual assault of a child, defendant’s sentence stands.

¶ 23 Finally, we do caution the trial court concerning its on-the-record criticism of this court’s

decision in Gates. It is apparent here that, in spite of the court’s commentary on Gates, the court

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appreciated the import of that decision and confined its comments to this defendant and his conduct

rather than improper considerations as it had in Gates.

¶ 24 III. CONCLUSION

¶ 25 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 26 Affirmed.

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