People v. Long

2020 IL App (4th) 190759-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY W. LONG, Defendant-Appellant.

NO. 4-19-0759

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

October 8, 2020

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 Calhoun County

No. 14CF43

Honorable Debra L. Wellborn, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Justices Knecht and Turner concurred in the judgment.

ORDER

¶ 1 Held: (1) Defendant's 30-year prison sentence was excessive as it was manifestly disproportionate to the offense, and we reduce it to 20 years pursuant to Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967).

(2) Pursuant to Illinois Supreme Court Rule 472 (eff. May 17, 2019), we remand to the trial court to allow defendant the opportunity to file a motion challenging his fine.

¶ 2 Following a jury trial, defendant, Timothy Long, was convicted of methamphetamine conspiracy (720 ILCS 646/65(a) (West 2012)) and sentenced to 30 years in prison. Defendant appealed his conviction and sentence. In People v. Long, 2018 IL App (4th) 150919, ¶ 1, 115 N.E.3d 295, we reduced the degree of the offense for which defendant was convicted pursuant to Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967) and remanded for a new sentencing hearing. At the resentencing hearing, the trial court again sentenced defendant to 30 years in prison. The court also ordered defendant to pay certain fines and fees. On appeal, defendant argues the court erred in sentencing him to 30 years' imprisonment and in imposing a $7500 fine. We agree with defendant's first contention and reduce his sentence to 20 years' imprisonment as authorized by Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967). Additionally, we remand defendant's case pursuant to Illinois Supreme Court Rule 472 (eff. May 17, 2019) to allow defendant the opportunity to challenge the $7500 fine.

¶ 3 I. BACKGROUND

¶ 4 On April 29, 2015, the State filed a second amended information charging defendant with methamphetamine conspiracy (720 ILCS 646/65(a) (West 2012)). Specifically, the State alleged that in 2014, defendant and Michael Blumenberg agreed to manufacture methamphetamine and, pursuant to that agreement, defendant provided Blumenberg with Coleman fuel, an ingredient of methamphetamine. The State further alleged Blumenberg then used the Coleman fuel defendant had provided to produce between 400 and 900 grams of methamphetamine. The facts of defendant's case are more fully set forth in our prior decision (see Long, 2018 IL App (4th) 150919, ¶¶ 3-30), and we need not repeat them in full here. However, because defendant's current claims are based, in part, on the extent of his involvement in the methamphetamine conspiracy, we will provide a brief recitation of the evidence presented during the trial.

¶ 5 At trial, the State established that on November 26, 2014, police discovered a "shake[-]and[-]bake meth lab" at the home of Dennis Burge. Police also discovered a total of 686.7 grams of methamphetamine as well as additional methamphetamine manufacturing materials, including a container of Coleman fuel. Both Burge and Blumenberg were arrested in connection with the methamphetamine manufacturing operation. During the trial, the State also presented arecording of an interview between law enforcement and defendant in which defendant confessed to providing Blumenberg a can of Coleman fuel. Although defendant presented evidence that he did not give Blumenberg the Coleman fuel for the purpose of manufacturing methamphetamine, the jury ultimately found him guilty of the charged offense.

¶ 6 Following defendant's conviction, the trial court conducted a sentencing hearing. At the hearing, defendant presented the testimony of two witnesses and spoke in allocution. Before pronouncing its sentence, the court confirmed it had reviewed defendant's presentence investigation report (PSI). The mitigating evidence contained in the PSI included a history of defendant's military service, education, and family relationships. It reflected that, in 2013, defendant received a certificate from a two-year technical college in "precision machining technology." The PSI also set forth defendant's criminal history. According to the PSI, since the early 1990s and prior to the subject conviction, defendant had been convicted of 11 felonies and multiple misdemeanors and traffic offenses. The court ultimately sentenced defendant to 30 years in prison and imposed a $10,000 fine. As part of his sentence, the court also recommended defendant participate in an Illinois Department of Corrections (DOC) substance abuse program.

¶ 7 Defendant subsequently filed an appeal. As set forth in our earlier decision, we reduced the degree of the offense for which defendant was convicted pursuant to Rule 615(b)(3), finding the evidence presented at trial "established that 100 to 400 grams of methamphetamine was attributable to the conspiracy involving defendant rather than the 400 to 900 grams" for which defendant had been convicted. Id. ¶ 44. Because we reduced the degree of the offense, we also remanded the case for resentencing. Id.

¶ 8 On remand, the trial court conducted a resentencing hearing. At the hearing, defendant did not present any evidence but instead relied on the information contained in asupplement to the PSI that had been prepared for the resentencing hearing. The supplemental PSI restated the material information in the original PSI and included some additional information. The new report indicated that, in their methamphetamine cases, Burge had been sentenced to 10 years' incarceration, Blumenberg had been sentenced to 6 years' incarceration, and both men had already completed their prison sentences. Additionally, in the "Investigator's Remarks" section of the supplement, the document's author wrote that a representative of DOC had informed him that "[defendant] [was] *** on the waiting list for [a] [s]ubstance [a]buse [p]rogram[,]" "[defendant] was advised of other programs that he could do while incarcerated but he chose not to participate[,]" and "[defendant] ha[d] not reached out about any other programs that [were] available."

¶ 9 The parties then presented their sentence recommendations. The State, noting defendant's extensive prior criminal history, requested the trial court resentence defendant to 30 years in prison and reimpose the $10,000 fine. Defense counsel requested "the minimum" sentence, emphasizing certain mitigating evidence including the limited scope of defendant's participation in the conspiracy to manufacture methamphetamine, as well as defendant's education and relationship with his family. Defense counsel also argued defendant had been unable to participate in substance abuse classes or other rehabilitative programs due to certain restrictions he suggested were imposed by the court as part of defendant's initial sentencing. Defense counsel disagreed with the statements in the supplemental PSI that defendant had "refused, or not taken advantage of [rehabilitative programs] in DOC," arguing instead "[defendant] [was] not refusing services. It's just they are not available due to certain restrictions that were [imposed by a] previous court order[.]"

¶ 10 After the parties made their sentence recommendations, defendant made astatement in allocution. In his statement, defendant denied committing the crime for which he was being sentenced and spoke about his service in the U.S. Army which included participation in "Operation Desert Storm" in Iraq. He also spoke about his relationship with his family, education, and work history.

¶ 11 Prior to issuing its sentence, the trial court stated it had "considered the factual basis in regard to the unlawful conspiracy to manufacture methamphetamine," "review[ed] the [PSI] up through and including [the supplemental PSI,]" "listened to the arguments of counsel *** and the statements that [defendant] [made,]" and "take[n] into consideration the statutory factors of mitigation[.]" The court referenced defendant's "long history" of criminal convictions as well as his military service, education, work history, and relationship with his family. The court further noted,

"[Defendant's] statement in regard to not having the ability to do some programs in [DOC] is inconsistent with the [supplemental PSI] indicating that while he was not able to take advantage of their program for substance abuse because of the long wait list, they said, and I quote, 'There were other programs that [defendant] was advised of that he could do while incarcerated, but he chose not to participate,' and after that they indicated he had not reached out about any other programs that were available to him."

The court ultimately resentenced defendant to 30 years in prison and imposed certain fines and fees, including a $7500 "ordinary fine." The court explained, "[b]ased upon some of the information in the [PSI], I still believe that [defendant] would have the ability to pay [an] ordinary fine."

¶ 12 Defendant subsequently filed a motion to reconsider sentence. In his motion,defendant argued, in relevant part, that his sentence was excessive based upon the limited scope of his participation in the conspiracy to manufacture methamphetamine and the mitigating evidence contained in the supplemental PSI. Defendant alleged that, considering the "factors of mitigation" and that the only evidence in aggravation was his "criminal history," the disparity between his 30-year sentence and the shorter sentences given to Blumenberg and Burge, who defendant described as the "leaders and planners" of the criminal conduct, was "unwarranted, arbitrary[,] and unreasonable."

¶ 13 The trial court held a hearing on defendant's motion. At the hearing, the State presented the criminal records of Burge and Blumenberg. According to the...