People v. Vistante

2023 IL App (4th) 221004-U

• Court: Appellate Court of Illinois
• Decided: November 3, 2023
• Docket: 4-22-1004
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 221004-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-22-1004 November 3, 2023 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Hancock County JONAH K.P. VISTANTE, ) No. 19CF101 Defendant-Appellant. ) ) Honorable ) Rodney G. Clark, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Zenoff concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, finding the trial court did not err when finding (1) defendant’s conduct caused serious harm and (2) defendant’s position of trust as the child victim’s father did not amount to an impermissible double enhancement.

¶2 In March 2022, defendant, Jonah K.P. Vistante, entered an open plea of guilty

pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), for criminal sexual assault (720 ILCS

5/11-1.20(a)(3) (West 2018)). Defendant was sentenced to 14 years’ imprisonment. On appeal,

defendant argues (1) his 14-year sentence was excessive because (a) the trial court improperly

found and placed excessive weight on its finding that defendant’s conduct caused or threatened

serious harm to J.V. and (b) the court’s finding that defendant’s position of trust and authority

caused serious harm amounted to an impermissible double enhancement and (2) the preceding

errors cumulatively deprived him of a fair sentencing hearing. We affirm. ¶3 I. BACKGROUND

¶4 In October 2019, defendant was charged by amended information with five counts

of criminal sexual assault for acts of sexual penetration committed against his daughter, a minor,

J.V. In March 2022, defendant entered an Alford plea to one count of criminal sexual assault (see

North Carolina v. Alford, 400 U.S. 25, 37 (1970) (an Alford plea is a guilty plea where the

defendant maintains his innocence)). There was no agreement as to defendant’s sentence.

¶5 In July 2022, a sentencing hearing was held. The presentence investigation report

(PSI) was admitted without objection. The trial court took judicial notice of Hancock County

case No. 19-JA-16 and admitted into evidence a transcript of J.V.’s testimony at those

proceedings detailing years of defendant’s sexual assault of her.

¶6 The trial court considered the PSI, evidence presented in aggravation and

mitigation, defendant’s statement in allocution, argument from the parties, the statutory and

nonstatutory factors in both aggravation and mitigation, and the history and character of

defendant. The court found in aggravation defendant had a history of prior delinquency or

criminal activity and a sentence was necessary to deter others from committing the same crime.

The court found defendant’s conduct caused or threatened serious harm, stating:

“I believe that the Defendant’s conduct caused or threatened serious harm. It’s

interesting to note in the aggravation it talks about serious harm; in mitigation it

talks about physical harm. There is no doubt that the Defendant’s conduct caused

serious harm to his own daughter. I can’t imagine what she’s gone through.”

The court also found in aggravation that defendant held a position of trust regarding J.V., stating:

“I am mindful of the fact that this Court is not allowed to take factors into

consideration that are also elements of the charge. It’s interesting though to note

-2- under [statutory aggravating factor] 14 it talks about holding a position of trust. I

do not think that that’s a specific factor. There definitely was trust involved.

That’s the only part that I’m considering in association with that, that there was

trust. This was his own daughter.”

The court found the fact defendant was the parent and provider of his four other children was

mitigating but did “not plac[e] much weight on that as a factor.”

¶7 The trial court sentenced defendant to 14 years’ imprisonment.

¶8 Defendant filed a motion to reconsider his sentence, arguing the trial court erred

by failing to find various factors in mitigation applied and when finding various factors in

aggravation applied. The court denied defendant’s motion.

¶9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant argues (1) his 14-year sentence was excessive because

(a) the trial court improperly found and placed excessive weight on its finding that defendant’s

conduct caused or threatened serious harm to J.V. and (b) the court’s finding that defendant’s

position of trust and authority caused serious harm amounted to an impermissible double

enhancement and (2) the preceding errors cumulatively deprived him of a fair sentencing

hearing. We disagree.

¶ 12 “The legislature sets forth by statute the range of permissible sentences for each

class of criminal offense.” People v. Fern, 189 Ill. 2d 48, 53 (1999). “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.’ ” People v. Pina, 2019 IL App (4th) 170614, ¶ 20 (quoting Fern, 189 Ill. 2d at 54). A

-3- reviewing court affords great deference to a trial court’s sentencing judgment because “having

observed the defendant and the proceedings, [it] is in a far better position to consider such factors

as the defendant’s credibility, demeanor, general moral character, mentality, social environment,

and habits than a reviewing court, which must rely on a ‘cold’ record.” People v. Little, 2011 IL

App (4th) 090787, ¶ 24. A sentence that falls within the applicable statutory limits is reviewed

for an abuse of discretion. People v. Price, 2011 IL App (4th) 100311, ¶ 36.

¶ 13 Here, defendant pleaded guilty to criminal sexual assault, a Class 1 felony. 720

ILCS 5/11-1.20(a)(3) (West 2018). The Unified Code of Corrections provides a term of

imprisonment for a Class 1 felony of not less than 4 years and not more than 15 years. 730 ILCS

5/5-4.5-30(a) (West 2022). Defendant was sentenced to a term of 14 years’ imprisonment.

Because defendant’s sentence was within the permissible range, we begin with the presumption

the sentence was proper. People v. Knox, 2014 IL App (1st) 120349, ¶ 46.

¶ 14 A. Serious Harm Finding

¶ 15 Defendant contends the trial court erred because there was no evidence to support

a finding of serious harm as distinct from harm simpliciter. Specifically, defendant argues there

was no mention of harm or evidence presented of counseling, behavioral issues, or other

interventions. We disagree.

¶ 16 “Psychological trauma to a victim may be considered as an aggravating factor

without direct evidence of trauma.” People v. Reber, 2019 IL App (5th) 150439, ¶ 94. The trial

court “may infer that a child/victim of sex abuse has sustained psychological damage.” People v.

Burton, 102 Ill. App. 3d 148, 154 (1981).

¶ 17 Our review of the record supports the trial court’s finding that defendant’s

conduct undoubtedly caused serious harm. J.V.’s testimony from the juvenile proceedings show

-4- defendant began his sexual assault of J.V. when she was 8 years old and continued until she was

16 years old. J.V. described defendant’s conduct in graphic detail and how defendant relentlessly

pressured J.V. into having sex with him. J.V. explained she eventually relented while she was

showering and described feeling “gross” afterwards. At the age of 11, J.V. recounted defendant

told her to lie about having sex with another boy (presumably her own age) at a doctor’s visit to

obtain a birth control prescription. J.V. stated she simply “wanted to be normal,” meaning not

having defendant coerce her into having sex with him. On another occasion, defendant “flipped

out” on J.V., striking her several times with his hands and a belt and threatening to kill her when

she told him she had a boyfriend.

¶ 18 During J.V.’s victim impact statement, she recalled thinking defendant’s sexual

abuse was normal when she was younger. J.V. missed out on friendships and life experiences

because of defendant. J.V. stated when she was 13 or 14 years old, she wondered if, when she

became an adult with a husband of her own, defendant would still want to molest her. She stated

she felt alone and wanted to have parents but that both were going to be in prison.

¶ 19 Our position as a reviewing court does not require us to abandon our common

sense. People v. Belknap, 2014 IL 117094, ¶¶ 52-53 (permitting a reviewing court to use a

common-sense assessment of the evidence under the first prong of a plain error analysis). J.V.’s

testimony from both the victim impact statement and juvenile proceedings readily offers an

inference of her sustaining serious psychological harm from defendant’s conduct. Therefore, we

find no error in the trial court’s judgment concerning serious harm caused by defendant’s

conduct. See People v. Reed, 361 Ill. App. 3d 995, 1000 (2005) (“[W]e review the trial court’s

judgment, not its rationale,” and we may “affirm for any reason the record supports.”).

¶ 20 B. Double Enhancement Claim

-5- ¶ 21 “A double enhancement occurs when (1) a single factor is used both as an element

of an offense and as a basis for imposing a harsher sentence *** or (2) the same factor is used

twice to elevate the severity of the offense itself.” (Internal quotation marks omitted.) People v.

Hibbler, 2019 IL App (4th) 160897, ¶ 66. “There is a strong presumption that the trial court

based its sentencing determination on proper legal reasoning, and a court of review should

consider the record as a whole, rather than focusing on a few words or statements by the trial

court.” People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22. The defendant bears the

burden to affirmatively establish the sentence imposed was based on an improper factor. People

v. Sturgeon, 2019 IL App (4th) 170035, ¶ 103. A sentence will not be reversed unless it is

evident the trial court relied upon an improper factor. Id. “Whether the trial court relied upon an

improper factor at sentencing is a question of law reviewed de novo.” Id.

¶ 22 Here, defendant pleaded guilty to criminal sexual assault, the elements of which

were (1) defendant committed an act of sexual penetration upon J.V., who was (2) under the age

of 18 at the time, and (3) defendant was a family member. 720 ILCS 5/11-1.20(a)(3) (West

2018). A family member is defined as:

“a parent, grandparent, child, aunt, uncle, great-aunt, or great-uncle, whether by

whole blood, half-blood, or adoption, and includes a step-grandparent,

step-parent, or step-child. ‘Family member’ also means, if the victim is a child

under 18 years of age, an accused who has resided in the household with the child

continuously for at least 6 months.” 720 ILCS 5/11-0.1 (West 2018).

¶ 23 Defendant contends the trial court’s finding defendant held a position of trust

regarding J.V. because he was J.V.’s father—an element inherent to the charged offense—

amounted to an improper double enhancement. Also, when the court referred to J.V. as

-6- defendant’s daughter, defendant argues the court considered defendant’s status as a family

member—an element inherent to the charged offense—which amounted to an improper double

enhancement used to bolster the court’s finding of serious harm.

¶ 24 We disagree with defendant’s contention the trial court’s consideration of

defendant’s position of trust amounted to a double enhancement. Simply because a person is a

family member does not necessarily entail that person holds a position of trust. Moreover, a

position of trust is not an underlying element of criminal sexual assault. Besides, “[i]t is

appropriate for a trial court to consider whether a defendant convicted of criminal sexual assault

holds a position of trust or supervision in relationship to the child/victim.” People v. Madura,

257 Ill. App. 3d 735, 739 (1994).

¶ 25 We also do not find error where the trial court referenced defendant being J.V.’s

father as this did not amount to improperly bolstering the court’s finding of serious harm. The

trial court, when “announcing its sentencing decision, is not required to refrain from any mention

of the factors that constitute elements of an offense, and the mere reference to the existence of

such a factor is not reversible error.” People v. Brown, 2018 IL App (1st) 160924, ¶ 22.

“Sentencing hearings do not occur in a vacuum, and the duty to impose a fair sentence entails an

explanation of the court’s reasoning in the context of the offenses of which a defendant has been

convicted.” People v. Sauseda, 2016 IL App (1st) 140134, ¶ 15 (stating a trial court’s comments

on the nature and circumstances of a defendant’s crime does not necessarily result in improperly

using elements of the offense as factors in aggravation). When read in context, the trial court

found defendant’s conduct caused serious harm and noted the inescapable fact that this serious

harm was caused to his own daughter. At sentencing, a “court need not unrealistically avoid any

mention of such inherent factors, treating them as if they did not exist.” People v. O’Toole, 226

-7- Ill. App. 3d 974, 992 (1992). We find the trial court appropriately considered defendant’s

position in J.V.’s life when sentencing defendant. See People v. King, 151 Ill. App. 3d 662, 663-

64 (1987) (finding a distinction between being a father and a family member and that

considering the defendant’s position as a father, who owes a special duty of protection to his

child, as an aggravating factor was not error).

¶ 26 Because we do not conclude the trial court erred when finding defendant’s

conduct caused serious harm or the court’s findings amounted to a double enhancement, we need

not address defendant’s claim that cumulative errors denied him a fair sentencing hearing.

¶ 27 III. CONCLUSION

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

¶ 29 Affirmed.

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