People v. Angel, 4-19-0344

2019 IL App (4th) 190344-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN S. ANGEL, Defendant-Appellant.

NO. 4-19-0344

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

December 9, 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).

Appeal from the Circuit Court of Greene County

No. 17CF107

Honorable David R. Cherry, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court.

Justices Turner and Harris concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding, based on the record on appeal and the deficiencies of defendant's brief, we must presume the trial court was correct in refusing to strike the presentence investigation report in its entirety on the basis of a claimed conflict of interest; and the trial court did not abuse its discretion when sentencing defendant to seven years in the Illinois Department of Corrections.

¶ 2 In February 2018, defendant, Brian S. Angel, pleaded guilty to aggravated criminal sexual abuse, a Class 2 felony, for open sentencing. Court services was ordered to prepare a presentence investigation report (PSI) before defendant's sentencing in August 2018.

¶ 3 In August 2018, before the sentencing hearing, the trial court, pursuant to defendant's request, struck some of the language defense counsel found objectionable from the PSI. The court then heard arguments from counsel and sentenced defendant to seven years in the Illinois Department of Corrections.

¶ 4 On appeal, defendant argues the trial court erred in (1) refusing to strike the PSI in its entirety as a conflict of interest between the investigating probation officer and the prosecuting attorney resulted in allegedly biased and prejudicial information appearing in the PSI and (2) sentencing defendant to seven-years' incarceration based on the court's personal biases related to the nature of defendant's offenses and failure to properly consider mitigating factors.

¶ 5 I. BACKGROUND

¶ 6 In July 2017, the State filed four criminal counts against defendant. Two counts consisted of aggravated criminal sexual abuse (720 ILCS 5/11-1.60 (West 2016)), both Class 2 felonies, one count of traveling to meet a minor (720 ILCS 5/11-26 (West 2016)), a Class 3 felony, and one count of unlawful grooming (720 ILCS 5/11-25 (West 2016)), a Class 4 felony. The victim in all four counts was S.G.S., a minor who was 13 years old. Defendant considered himself a friend of the family and would make contact with the minor at her home while her mother was away.

¶ 7 In February 2018, defendant pleaded guilty for open sentencing to count I of the information. Count I provided defendant, being "over the age of 17 years, committed an act of sexual conduct with [the victim,] who [was] at least 13 years of age but under 17 years of age; in [that he] touched, with his fingers, a sex organ of [the victim] [for his] own sexual gratification." The State agreed to dismiss the remaining counts at his sentencing hearing.

¶ 8 In July 2018, defendant filed an objection to the PSI alleging the report contained irrelevant and prejudicial information, mainly defendant's alleged contact with another 13-year-old girl. Furthermore, defendant stated the probation officer who authored the report was the spouse of the prosecuting attorney and this relationship created a conflict which manifested as bias against defendant within the report. Without providing examples or evidence, defendantstated, "[c]learly the relationship between the [p]robation [o]fficer as the wife of the [p]rosecutor shows a bias in presenting such a type of report that the [c]ourt will be relying on in determining an appropriate sentence for the [d]efendant."

¶ 9 A hearing on defendant's motion was held in July 2018. At the hearing, defendant stated he did not have any "direct evidence" of any bias based on the relationship between the prosecutor and the probation officer, but he believed there was bias because "[t]here is a husband and wife and I just find it odd." When asked by the trial court to elaborate, defendant's counsel indicated he believed an "unfair bias" existed because of the relationship alone. Defendant also objected to the probation officer's inclusion of contact defendant had with another 13-year-old girl. He claimed the alleged conduct was not criminal and, therefore, should not be considered by the trial court. The court asked defendant's counsel to identify any other areas of the PSI he thought were prejudicial. Directed to paragraphs 19 and 20, a summary statement and recommendation, counsel said, "I would like to look at the rest of the report but I am 98 percent [sic], Your Honor, that I would not have an objection to the report with those two clauses being taken out." When the court sought to specifically identify what part of the report's reference to the investigation of the other 13-year-old should be removed, counsel expressed he had no objection to the factual representations regarding the unrelated investigation remaining. He objected to the report writer's "conclusions [about the uncharged case] as a basis for incarceration." The court denied defendant's motion, noting counsel could maintain his objections at the sentencing hearing and the court could then strike those portions of the PSI which were found to be irrelevant to the court's decision.

¶ 10 At the sentencing hearing in August 2018, defendant renewed his objection based on the conflict of interest previously argued and asked the trial court to strike or ignore"unsubstantiated facts" and the opinions of the report writer contained within the PSI on pages 9 and 10. The trial court agreed the information was not relevant and struck all portions of the PSI requested by counsel. The State argued for a sentence of five years' incarceration, and defendant argued for a sentence of probation. After listening to recommendations and considering defendant's criminal history and the seriousness of the offense, the court sentenced defendant to seven years in the Illinois Department of Corrections.

¶ 11 In October 2018, the trial court heard arguments on defendant's motion to reconsider sentence. Defendant again argued there was a conflict of interest due to the relationship between the prosecutor and the probation officer, which produced a biased PSI. Defendant acknowledged the court "struck certain things out of the report," but he alleged "the damage was already done by putting that prejudicial information [in the report] and the conflict would have prevented [the probation officer] from taking an unbiased approach in this matter." Defendant also contended the trial court may have been prejudiced by the information before it was removed. Additionally, defendant argued the court failed to acknowledge his acceptance of responsibility and the court's sentence of seven years was excessive. In response, the court noted, "we did strike the necessary language to show that the Court could not consider that. Your argument that I had already seen it, you can't un-ring that bell. That's a good argument. Doesn't apply here. Didn't apply. I did not consider it before." With regard to defendant's claim the court did not give sufficient weight to his acceptance of responsibility, the court described how a motion to reconsider sentence allows him to provide a defendant with a "second look at my opinion." The court indicated, "I have known [defendant] a long time and I like [defendant]," noting there were mitigating factors including that defendant "didn't want people to go through the trauma of a trial, I respect that." The seriousness of the offense involving a 37-year-olddefendant and a 13-year-old girl were mentioned as part of the court's reasons for the seven-year sentence, along with the fact "[t]hat in and of itself is an offense that is offensive in society." The court also highlighted defendant's comments to the probation officer regarding his "compulsion" and the court said, "I hope 7 years would help [defendant] get through this compulsion," later noting:

"[M]y sentence was out of compassion not just for [defendant], but to send a message to the rest of the world we don't accept this behavior. This is an opportunity for [defendant] to obtain the assistance that he needs in a concentrated, focused situation where he doesn't have distractions. He doesn't have any other 13-year-old girls or anybody else who is going to distract him ***. He can get the help that is provided for free from DOC, psychiatrists, psychologists, doctors."

Acknowledging the intent was also to punish the defendant and protect the public, the court said, "[t]he rehabilitative function of a sentence is there for the taking if the Defendant will take it. And I hope he is rehabilitative. I hope he can do this. That's up to the doctors. That's up to [defendant]." The court then denied defendant's motion to reconsider sentence.

¶ 12 In October 2018, defendant filed his notice of appeal from the trial court's October 2018 order. In March 2019, the appellate court returned the matter to the trial court for the filing of a proper certificate under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) before filing a notice of appeal.

¶ 13 In May 2019, the trial court held a hearing to confirm defendant's compliance with Rule 604(d). Having done so, the parties again argued their positions on defendant's motionto reconsider sentence. Defendant's counsel maintained his previous arguments and requested the court to further recommend sex offender counseling as a part of the sentence. The court took the matter under advisement and issued its order later that month. Having considered the restated motion as well as the arguments of counsel, the court entered a written order denying defendant's renewed motion, reaffirming the original seven-year sentence with a recommendation to the Illinois Department of Corrections for sex...