People v. Stephens

2017 IL App (1st) 151631

93 N.E.3d 555

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

v.Nathaniel STEPHENS, Defendant–Appellant.

No. 1–15–1631

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed December 14, 2017

Michael J. Pelletier, Patricia Mysza, and Jessica D. Ware, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Clare Wesolik Connolly, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 After a bench trial in Cook County circuit court, defendant Nathaniel Stephens, who was 19 years old at the time of the offense in 2001, was convicted of the first degree murder and aggravated battery of a 4–month–old infant. For reasons that we discuss below, defendant was sentenced three times. At the third and most recent sentencing on April 16, 2015, defendant was sentenced to a total of 29 years with the Illinois Department of Corrections (IDOC). On this appeal, defendant raises challenges only to his 29–year sentence and asks this court (1) to reduce his sentence to the minimum, which is 26 years; (2) to remand for resentencing before a different judge; or (3) to order the reinstatement of his first sentence, which consisted of two concurrent 25–year sentences for his first degree murder and aggravated battery convictions. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 In a prior opinion, we summarized the facts of this case as follows:

"During 2001, defendant was the sometime-live-in boyfriend of Trenatta Richardson, the mother of the four-month-old victim. On October 25, 2001, while defendant babysat her, the victim suffered a broken leg. The victim died from blunt trauma injuries on November 2, 2001, after being in defendant's care. On November 3, 2001, in a videotaped confession, defendant admitted to hitting the victim's head into a door frame three times and punching the victim in the ribs three times on November 2, 2001, to stop the victim from crying.

Defendant was charged in separate indictments with: (1) aggravated battery to a child for the incident on October 25, 2001, when the victim suffered a broken leg ; and (2) first degree murder for the incident on November 2, 2001, when the victim died from blunt force trauma injuries." People v. Stephens , 2012 IL App (1st) 110296, ¶¶ 5–6, 366 Ill.Dec. 561, 980 N.E.2d 654.

¶ 4 In our prior opinion, we described in detail the evidence at trial, and we incorporate that opinion by reference. Stephens , 2012 IL App (1st) 110296, ¶¶ 38–60, 366 Ill.Dec. 561, 980 N.E.2d 654 (description of evidence at trial). Since there are no issues on this appeal regarding the evidence at trial, there is no need to repeat that description here.

¶ 5 As noted above, defendant was sentenced three times. After the bench trial, defendant was sentenced on August 30, 2005, to two concurrent sentences of 25 years with IDOC.¹ This is the initial sentence that defendant would now like restored.

¶ 6 At the sentencing hearing on August 30, 2005, the State entered into evidence two certified statements of conviction, for possession of a stolen motor vehicle and possession of a controlled substance with intent to deliver, and then stated that it had "nothing further in terms of evidence for sentencing."

¶ 7 In mitigation, defense counsel argued that defendant was only 19 years old at the time of the offense and suffered from "mental retardation and mental handicaps" and thus deserved imposition of the minimum sentence. In response, the State argued that it had not "been established to any certainty that the defendant is, in fact, mentally retarded." The State observed that there were IQ tests in the record and conceded that the defense could argue diminished capacity but not mental retardation. The State also argued that this case marked defendant's fifth felony conviction, which, "at his young age" of 22, "makes him a career criminal." The State did not argue for a particular sentence or even a particular sentencing range but asked only for "an appropriate sentence."

¶ 8 The trial court then observed that defendant was convicted "of the offense of aggravated battery of a child which is a Class X offense with a range of sentence anywhere from six years to thirty years and also the offense of first degree murder on this child that carries with it a range of sentence beginning at 20 years."

¶ 9 As noted, after considering the factors in aggravation and mitigation, the trial court sentenced defendant to two concurrent 25–year sentences, with credit for time served.

¶ 10 After defendant received this sentence, the State argued on direct appeal that the trial court erred in sentencing defendant to concurrent sentences when consecutive sentences were statutorily required.² Stephens , 2012 IL App (1st) 110296, ¶ 64, 366 Ill.Dec. 561, 980 N.E.2d 654. On December 24, 2009, this court affirmed his convictions but agreed with the State that consecutive sentences were mandatory and that his concurrent sentences must be vacated.³ People v. Stephens , No. 1–05–3365, 394 Ill.App.3d 1105, 369 Ill.Dec. 94, 985 N.E.2d 1080 (2009) (unpublished order under Supreme Court Rule 23 ). We explained: "When a trial court imposes concurrent sentences but consecutive sentences are mandatory, the sentencing order is void and the appellate court has the authority to correct the sentence ‘at any time.’ " Stephens , slip order at 27 (citing People v. Arna , 168 Ill. 2d 107, 113, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995) ).⁴ Concerning the resentencing, we instructed the trial court that "[i]t is within the trial court's discretion to determine the length of each sentence to be imposed, within the permissible statutory sentencing range." Stephens , slip order at 30. Our remand resulted in defendant's second sentence. Specifically on June 9, 2010, the trial court sentenced him to two consecutive 25–year sentences with IDOC.

¶ 11 However, the trial court issued this sentence without defendant or his counsel being present. Stephens , 2012 IL App (1st) 110296, ¶ 67, 366 Ill.Dec. 561, 980 N.E.2d 654. The entire proceeding consisted of the following statement by the trial court:

" ‘THE COURT: These are the cases of Nathaniel Stephens. The defendant is not in court. For both the cases the Appellate Court mandate has been issued and the mandate—and the mandamus, excuse me, shall be spread of record on each of the cases. The mittimus is corrected.

Defendant sentenced to 25 years consecutive and it is nunc pro tunc to August 30th, 2005. Actually, let me phrase it this way: One case is 28427 and the other case is 28428. On 27 the sentence is 25 years Illinois Department of Corrections. On 28428 the sentence is 25 years Illinois Department of Corrections consecutive to 01 CR 28427. Both sentences are nunc pro tunc. Let me just add this little part too, on 28427, that sentence is on Count 3. And it will be off call.' " Stephens , 2012 IL App (1st) 110296, ¶ 121, 366 Ill.Dec. 561, 980 N.E.2d 654.

¶ 12 Subsequently, defendant filed a pro se postconviction petition, which was summarily dismissed. On the postconviction appeal, this court affirmed the dismissal of defendant's petition but vacated his two consecutive 25–year sentences due to the trial court's failure to hold a sentencing hearing. Stephens , 2012 IL App (1st) 110296, ¶ 123, 366 Ill.Dec. 561, 980 N.E.2d 654. We remanded for resentencing, observing that section 5–5–3(d) of the Unified Code of Corrections (Code) ( 730 ILCS 5/5–5–3(d) (West 2004)) provides in relevant part:

" ‘In any case in which a sentence originally imposed is vacated, the case shall be remanded to the trial court. The trial court shall hold a hearing under Section 5–4–1 of the Unified Code of Corrections which may include evidence of the defendant's life, moral character and occupation during the time since the original sentence was passed. The trial court shall then impose sentence upon the defendant.’ " Stephens , 2012 IL App (1st) 110296, ¶ 123, 366 Ill.Dec. 561, 980 N.E.2d 654 (quoting 730 ILCS 5/5–5–3(d) (West 2004)).

¶ 13 Since it is this third sentencing that is at issue on this appeal, we describe it here in detail.

¶ 14 After we remanded the case a second time, it was assigned to a new trial judge pursuant to defendant's petition for substitution of judge. At the subsequent sentencing hearing held in 2015, the State did not call any witnesses but relied, in aggravation, on the seriousness of the offense and defendant's prior criminal history. Defendant's criminal history consisted of a total of five convictions, which were for the two convictions in the instant appeal, as well as three convictions for (1) possession of a stolen motor vehicle in 1999, (2) possession of a controlled substance in 2000, and (3) another possession of a controlled substance in 2001.

¶ 15 In mitigation, defendant called five witnesses: (1) Ewenell McCullough, a correctional agent with the Cook County sheriff's department; (2) Norlandi Young, a correctional agent at the Cook County jail; (3) Sheteila Allen, defendant's sister; (4) Melanie Porter, the mother of defendant's three children; and (5) Mary Porter, Melanie's mother and the grandmother of defendant's children.

¶ 16 Ewenell McCullough testified that he was a correctional sergeant with the Cook County sheriff's department and that he has worked at the Cook County jail for 24 years. McCullough was assigned for over a year to division one of the jail, where defendant was detained. The division one assignment was from "roughly" June 2013 through July 2014. During that time, defendant worked for McCullough cleaning up "the tier" and feeding the other detainees. McCullough described defendant as follows: "He was always cooperative. I never had a problem with him. I never gave him a disciplinary. He was always respectful and did his job."

¶ 17 Norlandi Young testified that she was...