People v. Hearring

2022 IL App (1st) 192064

216 N.E.3d 226

465 Ill.Dec. 975

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

v.Nicholas HEARRING, Defendant-Appellant.

No. 1-19-2064

Appellate Court of Illinois, First District, Sixth Division.

Filed March 25, 2022

James E. Chadd, Douglas R. Hoff, and Talon K. Nouri, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Stacia Weber, and Taylor Dall, Assistant State's Attorneys, of counsel), for the People.

JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Nicholas Hearring, was convicted of aggravated battery of a peace officer, after he spat at a corrections officer. The incident occurred while defendant was being detained pretrial for an attempted murder charge that the State subsequently dismissed.

¶ 2 After considering factors in mitigation and aggravation, including the attempted murder charge, the trial court sentenced defendant to 18 years with the Illinois Department of Corrections (IDOC). On appeal, defendant claims (1) that an 18-year sentence for spitting is disproportionate to the offense and violates our state's proportionate penalties clause and (2) that the trial court erred by considering two void prior convictions and by misstating the number of his prior convictions, thereby overstating his criminal history. Defendant asks this court to exercise its discretion under Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967) to reduce his 18-year sentence to the statutory minimum of six years or to vacate his sentence and remand for resentencing before a different judge. See Ill. S. Ct. R. 615(b) (eff. Jan. 1, 1967) ("On appeal the reviewing court may (4) reduce the punishment imposed by the trial court"). As a preliminary matter, both defendant and the State join in asking us to vacate his two void convictions.

¶ 3 For the reasons explained more fully below, we vacate defendant's two void convictions, and we vacate defendant's sentence and remand for resentencing.

¶ 4 I. BACKGROUND

¶ 5 A. Trial

¶ 6 Since defendant's claims on appeal solely concern his sentencing hearing, we will summarize the facts established at trial.

¶ 7 The evidence at defendant's 2019 bench trial established that, on February 7, 2019, correctional officer Bryan Sanchez was escorting a handcuffed inmate to another area of the jail when they passed defendant who was also handcuffed and being escorted by a correctional officer. Officer Sanchez testified that "defendant sp[i]t in the direction of me and the inmate I was escorting" and that some of the spit landed on the inmate and some landed on Officer Sanchez's face. Defendant testified that he had no intention of spitting on Officer Sanchez and that he was spitting at the inmate who Officer Sanchez was escorting and who had previously spit at defendant. Video footage established that Officer Sanchez was standing behind the inmate who defendant testified was the intended target of the spitting. The video also showed that, after defendant spit, Officer Sanchez moved his head and subsequently wiped the side of his face. Officer Sanchez testified that, first, he "maintained control of the [in]mate [he] was in charge of and afterwards wiped off [his] face" with the sleeve of his shirt.

¶ 8 The trial court found that it did not matter who defendant intended to spit at, where "that spit clearly got on the officer." The trial court found defendant guilty of aggravated battery as charged and subsequently denied his posttrial motion for a new trial.

¶ 9 B. Sentencing

¶ 10 At defendant's sentencing hearing on September 19, 2019, defense counsel requested the correction of several facts in the presentence investigation report (PSI), including: (1) changing "the number of [defendant's] children" from one to three and (2) changing the boxes next to both "Alcohol Problem/Use" and "Drug Problem/Use" from "No" to "Yes." The PSI indicated that defendant left school in the ninth grade and that the 40-year-old defendant had no then-current gang involvement. The PSI reported that defendant had been diagnosed with depression and anxiety and was under the care of psychiatrists at the Cook County Department of Corrections, who were treating him with Prozac, Depakote, and Zyprexa.

¶ 11 The PSI listed defendant's criminal history on two pages.¹ Approximately a quarter of the first page contained empty boxes where a defendant's juvenile history could be entered. However, defendant's PSI stated: "No juvenile cases." The PSI then listed defendant's adult cases, which were neither in chronological order nor grouped into misdemeanors and felonies. The PSI also did not state which cases were misdemeanors and which were felonies.²

¶ 12 In his appellate brief, defendant listed the cases noted in the PSI that were felonies, and the State does not dispute his characterization. According to defendant, the felony cases, in chronological order by arrest date, were as follows: (1) the receipt, possession or sale of a stolen vehicle in 1997, (2) the possession of a firearm, in 1999, which the parties now agree is void, (3) the manufacture or delivery of 1 to 15 grams of cocaine in 2001, (4) the aggravated unlawful use of a weapon (AUUW) in 2003, which the parties now agree is void, (5) the possession of ammunition in 2008, and (6) the receipt, possession, or sale of a stolen vehicle³ in 2012.⁴

¶ 13 At sentencing, the parties and the trial court agreed that the sentencing range was 6 to 30 years, and the prosecutor indicated that he had one witness. The prosecutor explained that there was a pending attempted murder charge and that he "intend[ed] to burn that case in aggravation."

¶ 14 The State called Detective Anthony Gillespie, who testified that he interviewed defendant's father, Daving Hearing, regarding a stabbing that occurred on April 20, 2017. Defendant's father told Detective Gillespie that he observed his son stab Dewon King during an argument over money, and the father later provided a videotaped statement. Detective Gillespie also interviewed the victim, Dewon King, who, the detective later learned, had been diagnosed as a schizophrenic. King identified a photo of defendant as the person who had stabbed him. As the result of the one stab wound to his abdomen, King suffered a lacerated pancreas and liver. Detective Gillespie testified that defendant was arrested on April 24, 2017, and defendant's father was murdered on July 15, 2018.

¶ 15 The State also introduced a street surveillance video of the event, which showed King and defendant conversing or arguing prior to the stabbing. The video depicted King gesturing wildly during most of the three-minute conversation or argument, while defendant stood comparatively still. King waved his hands above and below his head at various times and made other gestures. Defendant attempted to walk away but King reapproached. At one point, when King was gesturing, defendant attacked King, and King fled. The stabbing itself cannot be seen on the video because it occurred between the two men, and the camera is angled at King's back.

¶ 16 In the State's closing argument at sentencing, the prosecutor argued that defendant's act of spitting was "a disgusting act" and that defendant had "a history of violence," including the stabbing of King and the two now-void weapons charges. The prosecutor argued that the videos of both the stabbing and the spitting showed that both acts were unprovoked.

¶ 17 The prosecutor asserted: "He has nine prior felony convictions." The prosecutor began to list each one, but the trial court interrupted, stating: "I can see that, Mr. Abraham. You don't have to spell out all the convictions." The prosecutor then argued that defendant's criminal history was "extensive."

¶ 18 In defendant's closing argument, counsel argued that the stabbing video showed "some type of argument going back and forth" prior to the stabbing and that the spitting video demonstrated that the intended target was the other inmate and not the corrections officer. Counsel noted that both defendant and the stabbing victim had documented mental health issues. Emphasizing defendant's mental health and substance abuse issues, counsel asked for leniency and imposition of the minimum sentence.

¶ 19 After listening to arguments by both sides, the trial court sentenced defendant. Prior to pronouncing sentence, the trial court spoke to defendant, stating, "You've been in and out jail. You've got nine prior felony convictions." With respect to these convictions, the trial court noted, "[Y]our Presentence Investigation Report contains two pages of your background that I do have to consider, two of which are having a weapon, having a gun." The "two pages" mentioned by the trial court included the two now-void weapon charges. With regard to the stabbing, the trial court found: "[W]hatever the argument may have been, maybe it could have been self-defense, I understand that, but once again, you stabbed someone. So[,] there's significant aggravation there." The trial court sentenced defendant to 18 years with IDOC. After the trial court's pronouncement of sentence, the State moved to dismiss the attempted murder charge, which the trial court granted. Defendant then filed a postsentencing motion seeking reconsideration of his sentence, which the trial court denied. A timely notice of appeal was filed, and this appeal followed.

¶ 20 II. ANALYSIS

¶ 21 A. Vacating Two Void Convictions

¶ 22 As an initial matter, both parties join in asking this court to vacate defendant's 1999 conviction for possessing a gun in public and his 2004⁵ conviction for AUUW.

¶ 23 In light of the confusion that occurred at sentencing, due to a lack of description in the PSI regarding felonies and misdemeanors, we describe the two void convictions in detail, to eliminate any further confusion.

¶ 24 With regard to the first void conviction, defendant was charged, in a one-count information...