People v. Ferguson

2021 IL App (3d) 200041

194 N.E.3d 904

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Latrey C. FERGUSON, Defendant-Appellant.

Appeal No. 3-20-0041

Appellate Court of Illinois, Third District.

Filed September 7, 2021

Rehearing Denied October 7, 2021

James E. Chadd, Thomas A. Karalis, and Emily A. Brandon, of State Appellate Defender's Office, of Ottawa, for appellant.

Jodi Hoos, State's Attorney, of Peoria (Patrick Delfino and Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 The defendant, Latrey C. Ferguson, appeals from his conviction for aggravated robbery. The defendant argues (1) the Peoria County circuit court improperly considered that he was on probation when he committed the present offense, (2) the court improperly considered the defendant's student disciplinary records, and (3) defense counsel provided ineffective assistance by failing to object to these errors.

¶ 2 I. BACKGROUND

¶ 3 On September 11, 2017, the State charged the defendant by indictment, with armed robbery, a Class X felony ( 720 ILCS 5/18-2(a)(2), (b) (West 2016)). On December 18, 2017, pursuant to a negotiated plea, the defendant entered an open guilty plea to aggravated robbery, a Class 1 felony (id. § 18-1(b)(1), (c)). The State's factual basis for the plea indicated that on August 31, 2017, the defendant walked up to Brandon Hobbs's vehicle, pointed a gun at him, and demanded that Hobbs give the defendant his possessions. When Hobbs did not comply, the defendant reached into the vehicle and searched Hobbs's pockets. The defendant retrieved approximately $10 and fled the scene.

¶ 4 During sentencing, the parties discussed at length the presentence investigation report (PSI). The PSI included the defendant's family status, prior criminal history, and student discipline records.

¶ 5 The PSI reported that in case No. 14-CF-116701, on September 16, 2014, the defendant pled guilty to theft in St. Clair County and received a sentence of 24 months’ probation. On August 19, 2016, the State filed a petition to revoke probation. According to the PSI, on December 9, 2016, the court extended the defendant's probation to "2/9/2017." On October 4, 2017, the State filed a petition to revoke probation. The petition alleged, inter alia , that the defendant committed the armed robbery charged in the instant case.

¶ 6 At the sentencing hearing, the State argued in aggravation that the defendant's student discipline records showed a pattern of delinquency. The State acknowledged that the defendant was 23 years old and had received a tenth grade education. During his time in school, the defendant exhibited a history of aggressive behavior, abusive language, and truancy. The State noted that the defendant had not held employment since he was expelled from high school. Finally, the State noted the defendant had gang associations, did not have relationships with his family, and lacked a positive role model.

¶ 7 Defense counsel argued in mitigation that the defendant's abusive upbringing left him homeless throughout his teenage years and caused his present struggles. Counsel acknowledged that, according to the defendant's jail disciplinary records, the defendant had been disciplined while in the Peoria County jail. The court noted the defendant's disruptive behavior likely resulted from his struggle with anxiety and posttraumatic stress from being shot in 2016. In allocution, the defendant apologized for his actions that led to the present charges.

¶ 8 In its ruling, the court noted that "school is an opportunity for a person in life to make the best of it, to pull themselves out of whatever unfortunate situation they find themselves." The court acknowledged the defendant's troubles but noted the many opportunities that the defendant had to change his situation. The court noted that the defendant was "amongst those individuals that has one of the worst criminal history for a person of [the defendant's] young age." The court continued that the defendant's many interactions with law enforcement were "consistent with [the defendant's] five- or six-year history of [school] disciplinary reports." Regarding the defendant's school disciplinary reports, the court noted that the reports "sum[ ] up where [the defendant has] been up until this point in [his] life." The court also stated, "the fact you're on probation at the time of this offense, a person on probation arguably should be walking a fine line, a straight line, and not get caught up in something as severe and serious as this." The court considered the defendant's history, character, and statement in allocution and then sentenced the defendant to 11 years’ imprisonment. The court concluded that such a sentence was needed to deter others, protect the public, and rehabilitate the defendant. The defendant filed a motion to reconsider his sentence, which the court denied.

¶ 9 II. ANALYSIS

¶ 10 On appeal, the defendant raises three sentencing issues: (1) the court improperly considered that he was on probation when he committed the present offense, (2) the court improperly considered the defendant's student disciplinary records, and (3) defense counsel provided ineffective assistance by failing to object to these errors.

¶ 11 Initially, we note that the defendant argues that he is not required to object to the court's consideration of improper factors at sentencing to properly preserve his right to appeal. See People v. Atwood , 193 Ill. App. 3d 580, 593, 140 Ill.Dec. 490, 549 N.E.2d 1362 (1990) ("defense is not required to object to the inclusion of improper factors being taken into consideration while the court is pronouncing sentence"). Alternatively, the defendant acknowledges that, if forfeiture applies, the sentencing errors are reversible under the second prong of the plain error doctrine. The State does not directly respond to the defendant's assertion that his claims of error are preserved. Assuming for the sake of argument that forfeiture applies, we begin by determining whether the court committed a plain error. "To obtain relief under [the plain error] rule, a defendant must first show that a clear or obvious error occurred." People v. Hillier , 237 Ill. 2d 539, 545, 342 Ill.Dec. 1, 931 N.E.2d 1184 (2010) (citing People v. Piatkowski , 225 Ill. 2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007) ).

¶ 12 The trial court has wide latitude in sentencing a defendant to any term prescribed by statute, "[a]s long as the court does not consider incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors." People v. Hernandez , 204 Ill. App. 3d 732, 740, 149 Ill.Dec. 755, 562 N.E.2d 219 (1990). Relevant sentencing considerations include "[t]he defendant's history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment." People v. Washington , 224 Ill. App. 3d 663, 666, 167 Ill.Dec. 158, 587 N.E.2d 40 (1992). A court may also consider whether a defendant was on a term of probation at the time he committed the instant offense. 730 ILCS 5/5-5-3.2(a)(12) (West 2016). The weight that the circuit court should attribute to any factors in aggravation and mitigation depends on the particular circumstances of the case. People v. Kolzow , 301 Ill. App. 3d 1, 8, 234 Ill.Dec. 563, 703 N.E.2d 424 (1998).

¶ 13 We review the circuit court's sentencing determination for an abuse of discretion. People v. Stacey , 193 Ill. 2d 203, 209-10, 250 Ill.Dec. 4, 737 N.E.2d 626 (2000). We will find an abuse of discretion only where the court's ruling is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted by the court. People v. Hall , 195 Ill. 2d 1, 20, 252 Ill.Dec. 552, 743 N.E.2d 126 (2000). We will not disturb a sentence within the applicable sentencing range unless the circuit court abused its discretion.

Stacey , 193 Ill. 2d at 209-10, 250 Ill.Dec. 4, 737 N.E.2d 626.

¶ 14 At the outset, we note that the statutory range for a Class 1 felony is 4 to 15 years’ imprisonment. See 720 ILCS 5/18-1(b)(1), (c) (West 2016); 730 ILCS 5/5-4.5-30(a) (West 2016). The defendant's 11-year prison sentence for aggravated robbery is within the statutory range for that offense. Therefore, the sentence is presumptively valid, and the defendant bears the burden to rebut this presumption. See People v. Sauseda , 2016 IL App (1st) 140134, ¶ 12, 401 Ill.Dec. 581, 50 N.E.3d 723.

¶ 15 The defendant first argues that the court improperly considered his probation status at the time he committed the instant offense because the PSI showed the term of probation imposed in case No. 14-CF-116701 ended on February 9, 2017, well before he committed the instant offense on August 31, 2017.

¶ 16 From our review of the PSI, the February 9, 2017, termination date appears to be a scrivener's error, given the subsequent entry that indicated the State moved to terminate the defendant's probation on October 4, 2017. To confirm our suspicion, we take judicial notice of the online docket entries for St. Clair County case No. 14-CF-116701. See People v. Torres , 2019 IL App (1st) 151276, ¶ 36, 442 Ill.Dec. 66, 158 N.E.3d 1101 ("our supreme court has made it clear that it is ‘well within’ our authority to take judicial notice of court records in related cases," including a defendant's prior criminal proceedings (quoting In re N.G. , 2018 IL 121939, ¶ 32, 425 Ill.Dec. 547, 115 N.E.3d 102 )). The docket entry for December 9, 2016, clarifies that the court imposed a 12-month extension on the defendant's term of probation and that term would expire on December 9, 2017. The defendant was serving a term of probation when he committed the instant offense on August 31, 2017. Therefore, the court did not commit a plain error when it considered in aggravation that the defendant was on probation...