People v. Winkler

2016 IL App (4th) 160180-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSHUA M. WINKLER, Defendant-Appellant.

NO. 4-16-0180

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

November 7, 2016

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 Circuit Court of Ford County

No. 15CF14

Honorable Matthew John Fitton, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Presiding Justice Knecht and Justice Appleton concurred in the judgment.

ORDER

¶ 1 Held: (1) Defendant forfeited the argument that during sentencing, the trial court relied on improper aggravating factors inherent in the offense charged.

(2) The trial court did not abuse its discretion by sentencing defendant to consecutive prison terms of 22 years for predatory criminal sexual assault and 4 years for aggravated criminal sexual abuse.

¶ 2 Following a July 2015 sentencing hearing, the trial court sentenced defendant, Joshua M. Winkler, to consecutive prison terms of 22 years for predatory criminal sexual assault (720 ILCS 5/11.1-1.40(a)(1) (West 2014)) and 4 years for aggravated criminal sexual abuse (720 ILCS 5/11-1.60(f) (West 2014)). Defendant appeals, arguing that the trial court abused its discretion by (1) considering improper aggravating factors inherent in the offense charged and (2) imposing an excessive sentence. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In May 2015, defendant pleaded guilty to (1) predatory criminal sexual assault involving defendant's daughter, who was then 12 years old (count I) and (2) aggravated criminal sexual abuse involving defendant's son, who was then 13 years old (count II).

¶ 5 At defendant's July 2015 sentencing hearing, the State introduced two digital video discs (DVD) containing interviews conducted with both victims as well as their respective victim impact statements. The State, defendant, and the trial court agreed the DVDs would be proffered and considered for the limited purpose of providing background information because the interviews related only to factors necessary to convict defendant of the crimes charged, meaning consideration of the DVDs for sentencing purposes would constitute double enhancement. The State also called the victims' mother, Sarah Webb, who testified about the psychological harm suffered by her children and the impact that this experience has had on her entire family. Defendant offered character statements from family members and spoke in allocution.

¶ 6 The trial court sentenced defendant to consecutive prison sentences of 22 years for predatory criminal sexual assault and 4 years for aggravated criminal sexual assault. The court noted the mitigating factors were defendant's (1) lack of criminal history, (2) guilty plea, (3) cooperation with the investigation, and (4) family support. However, the court noted that the aggravating factors were defendant's position of trust in relation to the victims, the need for deterrence, and the psychological harm suffered by the victims.

¶ 7 Following the sentencing hearing, defendant filed a motion to reconsider the sentence, arguing that his sentence was excessive in light of the mitigating factors. The trial court denied defendant's motion to reconsider, reiterating that the court had considered both the miti-gating and aggravating factors, specifically noting defendant's lack of a criminal history and his guilty plea, as well as the presentence investigation report.

¶ 8 This appeal followed.

¶ 9 II. ANALYSIS

¶ 10 On appeal, defendant raises the following arguments: (1) the trial court relied on improper aggravating factors inherent in the offense charged, resulting in improper double enhancement, and (2) his sentence is excessive because the court failed to properly consider mitigating factors. The State argues defendant forfeited his argument that the court relied on improper aggravating factors by failing to raise that argument in his posttrial motion to reconsider. Alternatively, the State argues that the court did not rely on improper aggravating factors when sentencing defendant. Additionally, the State maintains that the sentence imposed was not an abuse of the court's discretion.

¶ 11 A. Standard of Review

¶ 12 We review a trial court's sentencing decision for an abuse of discretion. People v. Blair, 2015 IL App (4th) 130307, ¶ 33, 44 N.E.3d 1073. The supreme court has further explained, as follows:

"In considering the propriety of a sentence, the reviewing court must proceed with great caution and must not substitute its judgment for that of the trial court merely because it would have weighed the factors differently. [Citations.] A sentence within statutory limits will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly dispro-portionate to the nature of the offense." (Internal citations omitted.) People v. Fern, 189 Ill. 2d 48, 53-54, 723 N.E.2d 207, 209-10 (1999).

However, "the question of whether a court relied on an improper factor in imposing a sentence ultimately presents a question of law to be reviewed de novo." People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8, 973 N.E.2d 459.

¶ 13 B. Improper Aggravating Factors

¶ 14 The supreme court has "unequivocally held that for an issue to be preserved for review on appeal, the record must show that (1) a contemporaneous objection to the trial court's error was made, and (2) the issue was contained in a written posttrial motion." (Emphasis in original.) People v. Rathbone, 345 Ill. App. 3d 305, 308-09, 802 N.E.2d 333, 336 (2003) (citing People v. Enoch, 233 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988) (holding that issues must be raised both at trial and in a posttrial motion to be properly preserved)). Issues not properly preserved are forfeited. Blair, 2015 IL App (4th) 130307, ¶ 38, 44 N.E.3d 1073. With respect to assignments of error occurring during a sentencing hearing, Illinois Supreme Court Rule 605(a)(3)(C) (eff. Oct. 1, 2010) provides that "[a]ny issue or claim of error regarding the sentence imposed or any aspect of the sentencing hearing not raised in the written motion [to reconsider the sentence] shall be deemed [forefeited]."

¶ 15 In his posttrial motion to reconsider, defendant argued that his sentence was excessive. However, defendant did not argue that the trial court relied on improper aggravating factors when imposing his sentence, raising that issue for the first time on appeal. Accordingly, defendant did not properly preserve that claim for our review. We conclude defendant has for-feited this argument and, thus, is barred from asserting it on appeal.

¶ 16 Not only did defendant forfeit this specific sentencing argument, he also failed to request that we review his claim under the plain-error doctrine, resulting in forfeiture of that argument, as well. See Rathbone, 345 Ill. App. 3d at 312, 802 N.E.2d at 339 (holding that prior to considering a case for plain error, the defendant must first ask for plain-error review and persuade the court that "(1) the evidence at sentencing was closely balanced or (2) the error deprived him of a fair sentencing hearing").

¶ 17 Notwithstanding these forfeitures, we conclude the trial court did not rely on improper factors when considering its sentencing judgment. " 'As a general rule, the consideration of a factor which is necessarily implicit in an offense cannot be used as an aggravating factor in sentencing.' " People v. Cohn, 2014 IL App (3d) 120910, ¶ 29, 20 N.E.3d 1285 (quoting People v. Burge, 254 Ill. App. 3d 85, 88, 626 N.E.2d 343, 345 (1993).

¶ 18 As the State notes, defendant has not identified any specific comments by the trial court indicating reliance on an improper aggravating factor. Defendant maintains generally that the court improperly relied on the young age of the victims and the fact that defendant was in a position of trust as their father. However, the only comment by the court relating to the victims' age occurred in the context of considering the victims' ability to cope with the psychological harm resulting from defendant's crimes. This is not a situation like in People v. Edwards, 224 Ill. App. 3d 1017, 1033, 586 N.E.2d 1326, 1337 (1992), where resentencing was warranted because the trial court explicitly stated the victim's young age was an aggravating factor. Thus, while age itself would be an improper aggravating factor because it was an implicit element of the crimes for which defendant was convicted, the record does not reflect that the trial court considered thevictims' age as an aggravating factor.

¶ 19 Defendant also argues that psychological harm is not a proper aggravating factor because the court in People v. Calva, 256 Ill. App. 3d 865, 875, 628 N.E.2d 856, 864 (1993), noted that psychological harm is implicit in any aggravated sexual assault of a child. However, defendant misconstrues the following passage he relies on for his purported proposition:

"As for psychological harm, cases have held that it can be inferred that a child who is the victim of sexual assault has sustained psychological damage. [Citation.] However, no evidence was offered to show any psychological harm to A.G. Therefore, it would seem that the degree of any psychological harm used in aggravation would be minimal, as it would be limited to the degree of harm inherent in any aggravated sexual assault of a child." Id.

¶ 20 Unlike in Calva, where psychological harm was not a proper aggravating factor because no evidence of psychological harm was presented to the court (Id. at 877, 628 N.E.2d at 865), in this case, the trial court received statements from the victims as well as their mother, which outlined the psychological harm they suffered as a direct result of defendant's acts. Harm caused by defendant's actions is a proper aggravating factor pursuant to section 5-5-3.2(a)(1) of the Unified Code of Corrections (Unified Code) (730 ILCS...