People v. Long

2022 IL App (4th) 210629-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KELLY T. LONG, Defendant-Appellant.

No. 4-21-0629

Court of Appeals of Illinois, Fourth District

November 29, 2022

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Woodford County No. 20CF1 Honorable Charles M. Feeney III, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice Turner concurred in the judgment.

ORDER

STEIGMANN, JUSTICE

¶ 1 Held: The appellate court affirmed, concluding that the trial court did not impose an excessive sentence or abuse its discretion.

¶ 2 In August 2020, the State charged defendant, Kelly T. Long with possession of methamphetamine (720 ILCS 646/60(a)(b)(1) (West 2020)). In April 2021, the trial court conducted a bench trial and found defendant guilty of that offense. In August 2021, the court sentenced defendant to an extended term of eight years in prison.

¶ 3 Defendant appeals, arguing only that his extended-term sentence of eight years in prison for possession of methamphetamine is excessive and constitutes an abuse of the trial court's discretion. We disagree and affirm.

¶ 4 I. BACKGROUND

¶ 5 A. The Bench Trial ¶ 6 In April 2021, the trial court conducted defendant's bench trial. The charge against defendant arose from a December 2019 stop of an automobile for traffic law violations. Three people were in the car, including defendant in the front passenger seat. Because the deputy who stopped the vehicle smelled cannabis when he went to the driver's side window, all occupants of the vehicle were directed to leave it and sit inside separate squad cars that had arrived at the scene.

¶ 7 A search of the car revealed suspected crack cocaine and ecstasy in small bags in the front passenger door handle. The deputy arrested defendant because he was the only one within reach of the door handle in which the drugs were found. After arriving at the county jail, defendant stated that he should have just "swallowed" the drugs because, based on his experience, doing so "wouldn't have hurt him."

¶ 8 The parties stipulated that a lab analysis determined that the substance taken from the car was methamphetamine. (We note that defendant was originally charged in January 2020 with possession of a controlled substance (MDMA), but the State dismissed that charge after receiving the lab results and charged defendant by information with possession of methamphetamine.) Defendant did not testify, and the defense did not present any witnesses. The trial court found defendant guilty, ordered a presentence investigation report (PSI), and scheduled a sentencing hearing.

¶ 9 B. The Sentencing Hearing

¶ 10 At defendant's initial date for sentencing in June 2021, he appeared in court in such a state that the trial court ordered that he be tested for drugs. Because defendant tested positive for alcohol, cannabis, cocaine, methamphetamine, and amphetamines, the court found that defendant was not in an appropriate condition for sentencing and continued the sentencing hearing to a later date.

¶ 11 At defendant's August 2021 sentencing hearing, the trial court noted that it had received the PSI and determined that (1) both counsel had received it and (2) neither counsel had any additions or corrections.

¶ 12 The State presented no additional evidence. Defendant presented the trial court with a group exhibit that outlined 74 courses that he had completed while in custody in Woodford County, which consisted of over 128 hours of education and 326 lessons completed, including drug treatment classes and anger management classes.

¶ 13 Defendant also spoke in allocution, apologizing to the court for being late to the initial sentencing hearing, as well as for his condition on that day. Defendant explained that he had a 13-year-old son and had just "started being back in his life." He told the court he was under a lot of pressure and there were "just a lot of things going on in his life" at the time he committed the offense. Defendant also stated he had taken some substance abuse classes and was still "trying to not let the pressures make [him] want to do drugs again" so he could be in his family's life.

¶ 14 In recommending a sentence to the court, the State discussed the criminal history of defendant, who was 44 years old, and termed it "abysmal." The prosecutor then stated the following:

"He has at least eight prior felonies, 15 misdemeanors, multiple petitions to revoke. He has at least two previous charges for failures to return from a furlough. It's clear he has trouble abiding by social norms and staying out of trouble. There really isn't any terribly significant period of time where he is not in trouble if you don't account for times he is incarcerated. So[,] in that regard[,] he is a menace to society."

¶ 15 The prosecutor also pointed out that defendant (1) had come to court so intoxicated for the initial sentencing hearing that it had to be delayed and (2) had been sentenced to prison on multiple occasions. The prosecutor recommended a sentence of five years in prison.

¶ 16 In response, defense counsel emphasized that defendant's conduct neither caused nor threatened serious physical harm to anyone and defendant did not contemplate that his conduct would cause or threaten serious harm to anyone. Counsel acknowledged that defendant "does have a prior history" but argued that (1) defendant had admitted his addiction and (2) only a small amount of a controlled substance was involved in this case.

¶ 17 Defense counsel ultimately recommended that, given his client's substantial mitigating circumstances, the trial court should impose a sentence of probation, taking into account that defendant had already been in custody for over two months. Counsel argued that doing so would enable defendant to pursue strict drug treatment obligations and assist him in his efforts at sobriety "and being there for his family."

¶ 18 The trial court then reviewed the evidence before it, mentioned the PSI, and discussed the various factors in aggravation and mitigation. The court noted that the most significant factor by far was defendant's prior criminal history. The court mentioned that since 1996, defendant had eight prior felony convictions, the current conviction being his ninth. Defendant also had 15 misdemeanor convictions. The court explained that defendant had a history of (1) failing to comply with probation orders, (2) behaving in ways that led to his probations being terminated unsatisfactorily, and (3) in multiple instances, "conduct[ing] himself in a way to thwart justice." Reviewing defendant's record, the court concluded that it was very difficult to find defendant would be likely to obey any order the court would give.

¶ 19 The trial court added that since 2001, defendant had had six separate prison sentences "and yet this has not had any impact, or minimal impact at best, on him conforming his conduct to the requirements of the law." The court also noted that defendant committed the offense for which he was to be sentenced a mere eight days after his most recent release from custody.

¶ 20 The trial court concluded its sentencing by stating the following:

"He is extended-term eligible. This is a Class 3 felony. So the court can sentence him up to 10 years in prison. How much, is the question, should society continue to put up with an individual who refuses to conform their conduct to the requirement of the law? The court is going to sentence the defendant to eight years in the Illinois Department of Corrections."

¶ 21 Defendant filed a motion to reconsider his sentence, which the trial court denied. This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 Defendant appeals, arguing only that his extended-term prison sentence of eight years is excessive and constitutes an abuse of the trial court's discretion. We disagree and affirm.

¶ 24 A. The Applicable Law

¶ 25 "All 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. "The trial court has broad discretionary powers when selecting an appropriate sentence." People v. Garcia, 2018 IL App (4th) 170339, ¶ 37, 99 N.E.3d 571. "The trial court's sentence must be based upon the particular circumstances of the case, including (1) the defendant's history character, and rehabilitative potential; (2) the seriousness of the offense; (3) the need to protect society; and (4) the need for punishment and deterrence." People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 102, 126 N.E.3d 703.

¶ 26 The Unified Code of Corrections (Unified Code) (730 ILCS 5/1-1-1 et seq. (West 2020)) sets forth mitigating and aggravating factors that the trial court must consider when determining an appropriate sentence. See People v. Musgrave, 2019 IL App (4th) 100708, ¶ 54, 141 N.E.3d 320. A defendant's "history of prior delinquency or criminal activity" and the need "to deter others from committing the same crime" are aggravating factors. 730 ILCS 5/5-5-3.2(a) (3), (7) (West 2020). It is a mitigating factor if a "defendant's criminal conduct neither caused nor threatened serious physical harm to another." Id. § 5-5-3.1(a)(1).

¶ 27 "Under the Unified Code, drug addiction is not an explicit factor in mitigation or aggravation." Sturgeon, 2019 IL App (4th) 170035, ¶ 105; see also 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2020). Accordingly "the trial court is not required to view drug addiction as a mitigating factor." Sturgeon, 2019 IL App (4th) 170035, ¶ 105; see also People v. Madej, ...