FILED

February 2, 2015 Carla Bender NO. 4-13-0222 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County GREGORY SCOTT, ) No. 12CF704 Defendant-Appellant. ) ) Honorable ) Scott Drazewski, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Appleton concurred in the judgment and opinion.

OPINION ¶1 After a January 2013 trial, the jury found defendant, Gregory Scott, guilty on two

counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)). In

March 2013, the trial court sentenced defendant to two concurrent 13-year terms in the Illinois

Department of Corrections (DOC). Defendant appeals, asserting (1) he is entitled to a new trial

because the jury heard improper, irrelevant, and unduly prejudicial evidence; or (2) his case

should be remanded for resentencing because his sentence was based on improper sentencing

factors. We affirm.

¶2 I. BACKGROUND

¶3 On July 30, 2012, defendant was arrested and charged by information with two

counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)). Both counts alleged defendant knowingly and unlawfully delivered less than one gram of

cocaine, a controlled substance, to a confidential source (later identified as Sergio Gloria).

¶4 A. The Trial

¶5 On January 7, 2013, defendant's jury trial commenced. Sergio Gloria, the

confidential informant who purchased the cocaine, testified first for the State. Gloria testified he

worked as a confidential source for the Bloomington police department. He explained he was a

convicted felon who was addicted to crack cocaine, and he was paid by the police to purchase

drugs from defendant, whom he knew as "G." Gloria testified he purchased cocaine from

defendant on two separate occasions on July 30, 2012. He attested the first buy occurred at the

house where defendant lived on Oak Street, and the second buy occurred at the plasma center

nearby. Gloria stated, prior to each buy, both he and his van were thoroughly searched by

Bloomington police Detective Stephen Brown. Gloria explained Brown had provided him with

marked bills to pay for the cocaine, and after each buy, he turned the bags he purchased over to

Brown. Gloria testified defendant gave him his phone number at the time of the first buy and he

called the number to set up the second buy while he and Brown were sitting in his van.

¶6 On cross-examination, defendant, who was proceeding pro se, asked Gloria why

he had originally identified the man he purchased drugs from as a "young black male." Gloria

responded, "You look young to me. You know why? Because my eyeglasses weren't on that

particular day. I do wear glasses." Defendant then asked Gloria if the police's video surveillance

showed him wearing glasses, to which Gloria responded, "Possibly."

¶7 Detective Brown testified next for the State. Prior to his testimony, the State

indicated it planned to show the jury a videotape of an interview Brown conducted with

defendant. Outside the presence of the jury, the trial court asked defendant:

-2- "THE COURT: *** [A]ssuming that [Brown] testifies on

the date and time and location when the video was recorded of his

interview with you, is there any objection on your part to the

introduction by the State first of the actual [digital video disc

(DVD)] and having that displayed to the jury?

[DEFENDANT]: Yes.

THE COURT: Okay. And what's the basis of your

objection assuming that a foundation is laid[?]

[DEFENDANT]: I wanted to go through the interview with

him first before you show the DVD to build a foundation. The

tape was edited."

The court responded it would allow the video to be played to the jury over defendant's objection

if Brown laid a proper foundation.

¶8 Brown first testified he had conducted a search of Gloria's person and vehicle

before and after each of the controlled buys. He then explained he had photocopied the money

he provided to Gloria to purchase the drugs. The photocopied money was admitted into

evidence. Brown corroborated Gloria's testimony about the phone call setting up the second buy.

He stated Gloria called the number and asked if he could "stop back by." Brown said he heard a

male voice on the other end, and Gloria received a location for the second buy.

¶9 Brown next testified to the authenticity of the interrogation video, and it was

played to the jury. Each juror was provided with a transcript of the interview, which was not

offered into evidence. The video of defendant's interview was 21 minutes and 29 seconds long.

During the interview, defendant indicated he worked as a maintenance man at a day care in

-3- Chicago for approximately 10 years before coming to Bloomington to look for work. Defendant

explained he was staying at the Salvation Army and had been unemployed for approximately two

years. Brown asked defendant about the house he was staying at—the house from the first

buy—and Brown responded he did not live there; he was just sitting on the porch and had only

known the woman who lived in the house for about two weeks. Brown then asked defendant:

"[BROWN]: *** [D]o you *** use drugs or anything like

that?

[DEFENDANT]: Smoke a little marijuana sometime.

[BROWN]: That's it? You don't use cocaine or nothing

like that?

[DEFENDANT]: No."

Later in the video, Brown explained to defendant:

"We document our money that we go out and buy drugs

with. Right? I take photocopies of the money that I use. That way

when people go out and buy drugs[,] like police informants[,] and

they bring us the drugs[,] guess who has our money? The drug

dealer that brought the drugs to our informant. That's what

happened here today. I'm givin you a chance here just to explain

your situation if you wanna. Because I don't have to. I don't need

a confession. You had my money in your pocket and I watched

you sell drugs to my informant from 10 feet away. Alright? And

it's not the first time that you've sold drugs to that guy. This is not

somethin that just happened today. It just so happened that there's

-4- no need for me to keep givin you my money. So I wanted my

money back today. That's what happened. This isn't the first time

that you've sold drugs to that guy and it's not the first time you've

sold drugs to other people in that neighborhood. So this is your

chance. You wanna explain why you're involved in this kind of

stuff around here?"

Defendant responded, "Truthfully I'm really not tryin to be involved in it. Somebody just gave

me to take it down there to em." He then stated, "I'm not tryin to be no drug dealer. I'm just

tryin to eat." He explained he did not know the names of the men who brought the drugs, but

they were young men from Normal, Illinois. The following exchange then occurred:

"[BROWN]: You hear of anything about these shootings

here in the last couple weeks? Kids shooting each other and stuff.

Hear anything about that?

[DEFENDANT]: That gang bangin' shit.

[BROWN]: You seen any of them kids runnin around with

guns? Flashin around?

[DEFENDANT]: No. No."

Immediately thereafter, defendant explained he knew there were two groups who had been

"shooting each other," and he stated they were the men who were bringing the drugs down from

Normal. Brown ended the interview by asking defendant, "How many bags did you give that

guy? Three?" to which defendant responded, "Yeah."

¶ 10 On cross-examination, defendant continuously asked Brown why the video had

been edited to cut out approximately 17 hours worth of footage. Brown stated the interview

-5- lasted 16 minutes and 55 seconds, not 16 hours and 55 minutes. At one point, defendant asked,

"What else went on in that room?" Brown replied the video contained the entire interview and

had not been edited in any way. Defendant then stated, "No, no, no. You choked me. You

choked me unconscious. You beat me in my kidneys. I have never took medication in my life.

I'm on medication now. I have to take medication for the rest of my life." The State objected to

the form of the question and the trial judge reminded defendant he was not to testify while

questioning the witness.

¶ 11 Kevin Raisbeck, a detective with the Bloomington police department, testified he

conducted surveillance of the controlled buys. Raisbeck explained he was taking a video from

across the street during the first buy. In the surveillance video, Gloria is seen entering the house

on Oak Street, exiting the house a few minutes later, and speaking with a man in a blue polo shirt

who was sitting on the porch. Raisbeck stated he was not able to identify defendant as the man

in the video until defendant was arrested later that day wearing the blue polo shirt. The video

was then played for the jury and admitted into evidence.

¶ 12 Raisbeck next testified he was not able to conduct video surveillance of the

second buy because it took place at an unexpected location. He explained he arrived at the new

location just in time to see defendant approach Gloria's van and lean inside the van for a few

seconds. Gloria then left the scene, and defendant was arrested by street-crimes officers.

Raisbeck testified he searched defendant at the scene and recovered $150 and an HTC cell

phone. Raisbeck then called the number Gloria had called to set up the second buy and the

recovered cell phone started ringing. He also matched the serial numbers on the money from

defendant's pocket to the serial numbers of the money Gloria had been given to purchase the

drugs. A photocopy of the recovered bills was admitted into evidence.

-6- ¶ 13 The video of defendant's interrogation was played again during the State's closing

argument on January 8, 2013. The jury began its deliberations that evening and asked the court

two questions. The first question, received at 4:20 p.m., was "Can we see the video again with

the 1st buy[?]" The trial court allowed the jury to rewatch the video. The second question,

received at 6:20 p.m., was "Can we see a copy of Sergio Gloria's testimony[?]" The trial court

denied this request, explained the jurors should use their notes and recollections, and sent the

jury home for the evening. The jury reconvened the next morning at 9 a.m., and it found

defendant guilty on both counts at 10:25 a.m.

¶ 14 B. The Sentencing Hearing

¶ 15 On March 4, 2013, the trial court sentenced defendant to two concurrent 13-year

terms in DOC. Prior to sentencing, the State presented several aggravating factors, including the

need to deter others from committing the same crime and defendant's extensive criminal history,

which spans 30 years and includes 6 prior felony convictions and 3 prison terms. See 730 ILCS

5/5-5-3.2(a)(3), (7) (West 2012). In addition, the State encouraged the court to consider the

following factors under section 411 of the Illinois Controlled Substances Act: (1) defendant's

offenses involved the delivery of cocaine, a Schedule I substance (720 ILCS 570/411(1) (West

2012)); and (2) defendant was a nonuser who delivered a controlled substance to a user (720

ILCS 570/411(3) (West 2012)). Defendant responded he should receive the minimum sentence

because his last conviction was over 10 years prior to the current charges, and he vehemently

maintained the State did not prove its case because there was "no real evidence" and every

witness for the State had lied on the stand. Taking both parties' statements into consideration,

the court sentenced defendant.

-7- "THE COURT: Now with respect to what you're waiting

for, let me first indicate I'm going to impose concurrent not

consecutive sentences not just because the State didn't ask for it,

but I'm not finding that any of those aggravating factors necessary

or from my perspective that it would be necessary by the court to

incur consecutive sentences. So what we have remaining then is

sentences basically that would range from a minimum of six to a

maximum of thirty because of the fact that you have two previous

class two felonies in addition to the offenses that you now stand

convicted of that require a Class X sentencing. So what I'm

considering here in addition as far as factors in aggravation and

mitigation, again not to educate you or to go ahead and patronize

you in any way Mr. Scott, but let me indicate that the factors that

the State was referring to by and large in essence were statutory

factors which the court is required to consider.

So for example just like I am to consider whether or not

there are any factors in mitigation and I'm looking here at the

factors in mitigation besides having considered them, I don't see

any that apply. And then with factors in aggravation, the court has

considered that you did receive compensation for committing the

offense, that you have a history of prior delinquency and criminal

activity. And that is a permissible factor, in fact it's a required

factor for the court to consider at the time of the imposition of a

-8- sentence. So that is the relevance of your previous criminal

history.

We have the deterrent effect that also comes into play that

being deterrence and a sentence that is necessary to deter others

from committing similar type offenses.

*** I do note this is your seventh and eighth felony

convictions and that you've been to the [DOC] on three previous

occasions. With just those factors alone, Mr. Scott, you ought and

should know that we are not looking at the minimum that is going

to be imposed because the minimum is basically reserved for

individuals who either haven't been to the [DOC] in the past, and

you have, or for that matter that don't have as much of a previous

criminal history as you do.

So what I'm going to impose would be a sentence of, um,

thirteen years in [DOC] on counts one and two."

¶ 16 Defendant did not file a motion to reconsider sentence with the trial court.

¶ 17 This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 A. Video

¶ 20 Defendant argues his convictions should be reversed and his case remanded for a

new trial because the jury heard evidence that was improper, irrelevant, and unduly prejudicial.

Defendant specifically argues the video of his interrogation should have been redacted because it

contained statements indicating (1) he used marijuana; (2) he previously sold drugs; and (3) his

-9- purported drug suppliers were involved in gang-related shootings of children. The State argues

defendant (1) waived this argument because he acquiesced to the showing of the video, and (2)

forfeited this argument because he did not similarly object to the video at trial. To the extent the

issue is not preserved, defendant argues the issue can be reviewed as plain error.

¶ 21 As we have explained, "[w]aiver is the intentional relinquishment of a known

right, whereas forfeiture is the failure to make a timely assertion of a known right." People v.

Bowens,

,

(2011). Such a distinction is

important because if defendant has waived the issue, we need not review his claim for plain

error.

(explaining plain-error analysis applies to cases involving procedural default, not

affirmative acquiescence). We address each issue in turn.

¶ 22 1. Waiver

¶ 23 The State first contends defendant has waived the issue of whether the video of

his interview should have been redacted because, when asked for the basis of his objection,

defendant stated he "wanted to go through the interview with [Brown] first before [the court]

showed the DVD to build a foundation" because "[t]he tape was edited." According to the State,

this phrasing indicates defendant acquiesced to the video being played to the jury. The State

further contends defendant's claim the video was edited "necessitated" the video be shown in its

entirety. Defendant maintains he did not acquiesce to the introduction of the video because he

objected to the introduction of the video multiple times. We agree with defendant.

¶ 24 Where a defendant acquiesces to the actions taken by the trial court, he waives his

right to challenge those actions on appeal. People v. Dunlap,

,

. We have previously described waiver as a "tactical decision not to

object to otherwise objectionable matters." (Emphasis added.) Bowens,

,

- 10 -

. Whereas forfeiture occurs accidentally or negligently, waiver is an

intentional decision to abandon a known legal argument. United States v. Olano,

(1993). For example, we have found waiver where a defendant expressly declined to make

an objection. See, e.g., Dunlap,

,

(holding

defendant waived an objection to a public-defender reimbursement where the court asked

defendant whether there was anything he wanted to say about whether the reimbursement should

be imposed and defendant said "no").

¶ 25 Based on the record before us, we do not believe defendant intentionally

abandoned his right to challenge portions of the video on appeal. Before the video was played

for the jury, the trial judge asked defendant if he had any objection to the introduction of the

video, to which defendant answered, "Yes." The State essentially asks us to construe defendant's

express objection as a nonobjection. While we agree the language defendant used in stating the

rationale for his objection is somewhat acquiescent, we must construe waiver principles liberally

in favor of the criminally accused. People v. Phipps,

,

(2010). After defendant explained the basis for his objection, the trial judge explicitly stated the

video would be "admitted over objection" so long as Brown laid the proper foundation for its

admittance. Because the trial court treated defendant's comments as an objection, we will do the

same.

¶ 26 It is true "a party may not request to proceed in one manner and then later contend

on appeal that the requested course of action was in error." People v. Denson,

,

. However, the State's contention that defendant's claim necessitated the

video be shown in its entirety is without merit. Defendant did not ask the trial court to play the

entire video. On the contrary, he objected to its admission. Once the video was admitted over

- 11 - his objection, defendant was free to question Brown on cross-examination about portions he

believed were edited. See People v. Hanson,

,

(2010)

("When a circuit court makes an adverse evidentiary decision, defense counsel cannot be forced

to choose between waiving an issue for appeal and allowing damaging testimony to go

unanswered on cross-examination.").

¶ 27 Defendant's objection and later questions toward Brown reveal he believed the

State had removed portions of the interrogation from the video before it was played for the jury.

Defendant asked Brown several variations of, "What else went on in that room?" He never once

asked Brown about anything actually on the video shown to the jury. Defendant's actions and

comments do not demonstrate an intentional relinquishment or abandonment of his right to now

dispute portions of the video which he believes should have been removed.

¶ 28 2. Forfeiture

¶ 29 The State next argues defendant forfeited review of the video because he failed to

make a similar objection both at trial and in a posttrial motion. Defendant maintains he

preserved the issue because he objected to the introduction of the video, and objections need not

be identical at the trial and appellate level to preserve the issue for review. We agree with the

State.

¶ 30 "A specific objection at trial forfeits all grounds not specified." People v.

Lovejoy,

,

(2009). Defendant rightfully contends an issue

raised on appeal does not have to be identical to the objection raised at trial. People v. Mohr,

,

(2008) (finding the phrasing of a defendant's trial

objection and posttrial argument "close enough" to preserve the issue). However, where "[t]he

claim defendant raises on appeal is significantly different from the claim he raised below," the

- 12 - issue raised on appeal is forfeited. Lovejoy,

,

. A claim the

video was edited is significantly different than a claim the video should have been edited to

remove certain portions of inadmissible evidence. Accordingly, defendant has forfeited the issue

he now raises on appeal.

¶ 31 3. Plain-Error Review

¶ 32 Defendant urges us to consider his claim under the plain-error doctrine of Illinois

Supreme Court Rule 615(a) (eff. Jan. 1, 1967). Under the plain-error doctrine, a reviewing court

is allowed to consider unpreserved error when either "(1) the evidence is close, regardless of the

seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence."

People v. Herron,

,

(2005). As a matter of

convention, reviewing courts typically undertake plain-error analysis by first determining

whether error occurred at all. People v. Sargent,

,

(2010). However, under the closely-balanced-evidence prong, defendant "must show both that

there was plain error and that the evidence was so closely balanced that the error alone severely

threatened to tip the scales of justice against him." (Emphasis added.) Herron,

,

.

¶ 33 Thus, where the evidence against a defendant is overwhelming, a primary inquiry

into whether error occurred is unnecessary. See, e.g., People v. White,

,

(finding the plain-error analysis "evidence-dependent and result-oriented" and

refusing to consider whether error occurred because defendant could not show prejudice); People

v. Sims,

,

(2000) ("[a]ssuming, without

deciding" there was error, the court found "no plain error" because there was "no reasonable

probability that the jury would have acquitted the defendant" (internal quotation marks omitted));

- 13 - People v. Davis,

,

(2009) ("assuming arguendo,"

there was error, defendant could not establish prejudice for purposes of plain-error review);

Bowens,

,

("When, as here, the record clearly shows

that plain error did not occur, we will reject it without further analysis.").

¶ 34 Reviewing defendant's claim under the closely-balanced-evidence prong, we need

not consider whether an error occurred because the evidence against defendant is overwhelming.

Defendant asserts the evidence in his case is closely balanced because no officer actually saw an

exchange between him and Gloria. He argues this, combined with the fact the bags of cocaine

were not dusted for fingerprints, made Gloria's testimony "vital" to the State's case. Because

Gloria was an unreliable witness with "many credibility problems," defendant contends

admission of the entire video threatened to tip the scales of justice against him. We disagree.

¶ 35 Aside from Gloria's testimony, the State presented extensive evidence against

defendant. Multiple officers identified defendant as the man they were surveilling during both

buys, and Brown testified he searched Gloria's person and vehicle for money and contraband

before and after each buy. Defendant was arrested only moments after Raisbeck testified he saw

defendant lean into Gloria's van. The serial numbers of the money recovered from defendant's

pocket matched the serial numbers of the money provided to Gloria for the second buy and the

cell phone recovered from defendant's pocket started ringing when Raisbeck called the number

Gloria had called to set up the second buy.

¶ 36 Even without the alleged improper segments, the video of defendant's interview

depicts defendant confessing multiple times. When Brown told defendant he did not need a

confession because he saw the transaction occur and asked defendant why he was involved with

drugs, defendant responded, "Truthfully I'm really not trying to be involved in it. Somebody just

- 14 - gave me to take it down there to em." He then continued to cooperate with Brown by describing

the process of how he received the drugs and stating he was "not tryin to be no drug dealer," he

was "just tryin to eat." Later in the interview, Brown asked defendant if he gave Gloria three

"bags," to which defendant responded, "Yeah."

¶ 37 Defendant asserts the fact the jury deliberated for two days and asked two

questions demonstrates the closeness of the evidence. We disagree with defendant's implication

that one afternoon and a little over one hour the next morning amounts to two full days of

deliberation. In any event, "[c]areful consideration of the evidence adduced and exhibits

admitted is what we expect of jurors in any trial." People v. Wilmington,

,

. We agree, in certain cases, a lengthy deliberation accompanied by a note from

the jury demonstrates the closeness of the evidence. See People v. Palmer,

,

(1984) (noting the jury heard testimony from 21 witnesses over

three days and sent a note to the court indicating they were deadlocked); see also People v.

Gonzalez,

,

(finding the evidence was closely

balanced where witness credibility was "critical" because the only evidence presented was

conflicting testimony between detectives and a witness for defendant). However, where the

evidence against a defendant is overwhelming and there is no indication in the record that the

jurors themselves considered the evidence closely balanced, a lengthy deliberation and notes

from the jury are inconsequential. See Wilmington,

,

("[A]lthough the jury sent notes to the judge during the deliberative process, there is no

indication in the record that the jury at any time had reached an impasse or that the jurors

themselves considered this a close case."). The State presented a significant amount of

testimony and physical evidence, while defendant presented nothing. Because defendant makes

- 15 - no argument under the second prong of the plain-error analysis, we find defendant has not met

his burden of proving plain error and judicial review of his claim is not warranted.

¶ 38 We note this case comes to us on appeal as a direct result of defendant's actions

following his decision to represent himself. We have continuously expressed our belief that

proceeding without an attorney in a criminal matter is unwise. People v. Palmer,

,

(2008). This is because a defendant who chooses to waive

his right to counsel will be held to the same standard as an attorney "even though the result may

be that he is less effective as his own attorney." People v. Tuczynski,

,

(1978). Nonetheless, "a defendant retains the constitutional right to

choose to represent himself in a criminal trial no matter how unwise that decision may be."

Palmer,

,

.

¶ 39 B. Sentencing Factors

¶ 40 Defendant concedes he did not preserve review of his sentence because he failed

to file a motion to reconsider sentence (730 ILCS 5/5-4.5-50(c), (d) (West 2012)). However,

defendant argues his case should be remanded for resentencing under a plain-error review

because the trial judge based his sentence on improper sentencing factors. Specifically,

defendant asserts (1) his sentence was based on the trial judge's own personal sentencing policy

rather than an individualized sentencing determination; and (2) the trial judge considered

compensation, an element inherent in the offense, as an aggravating factor.

¶ 41 "[S]entencing errors raised for the first time on appeal are reviewable as plain

error if (1) the evidence [at the sentencing hearing] was closely balanced or (2) the error was

sufficiently grave that it deprived the defendant of a fair sentencing hearing." People v. Ahlers,

,

(2010) (citing People v. Rathbone, 345 Ill.

- 16 - App. 3d 305, 312, 802 N.E.2d at 333, 339 (2003)). The plain-error rule is not a general saving

clause for all trial errors. Rather, it is a limited and narrow exception "designed to redress

serious injustices." People v. Baker,

,

(2003).

¶ 42 Keeping these rules in mind, we find review of defendant's sentence under the

closely-balanced-evidence prong is not warranted. The evidence at the sentencing hearing

included several aggravating factors and little in the way of mitigation. Defendant's only

argument for why he should receive the minimum sentence was it had been over 10 years since

his last conviction and the State had not actually proven its case because every witness lied on

the stand. The State, on the other hand, presented multiple factors in support of an enhanced

sentence, including, inter alia, defendant's extensive criminal history.

¶ 43 Under the second prong, defendant relies on People v. Kopczick,

,

(2000), to support his argument plain-error review is

automatically warranted because "a trial judge's reliance upon an improper factor in sentencing

impinges upon defendant's fundamental right to liberty." We flatly rejected this contention in

Rathbone because "all sentencing errors arguably affect the defendant's fundamental right to

liberty." Rathbone, 345 Ill. App. 3d at 311, 802 N.E.2d at 338. Determining whether a

sentencing error is reviewable as plain error requires an in-depth analysis, and the second prong

of the rule should only be invoked when the alleged error is "so serious that its consideration is

necessary to preserve the integrity and reputation of the judicial process." (Internal quotation

marks omitted.) Id. We will address the seriousness of the alleged sentencing errors in turn.

¶ 44 1. Defendant's Sentence Was Not Based on a Personal Sentencing Policy

¶ 45 Defendant first asserts resentencing is required as a result of the trial judge's

statement that the minimum sentence is "basically reserved" for defendants who have not

- 17 - previously been to prison. Defendant argues, because there is no statutory requirement that the

minimum sentence be given only to defendants without a prior DOC sentence, his sentence was

necessarily based on the judge's own personal sentencing policy that defendants who have been

to prison or have a criminal history will never receive a minimum sentence. We disagree.

¶ 46 Courts of review have reversed and remanded for resentencing where it has been

shown trial judges have sentenced individuals based upon what is referred to as a "personal

sentencing policy." In People v. Bolyard,

,

(1975), the

supreme court explained a trial judge abuses his discretion when he arbitrarily denies an

allowable sentence because the defendant falls within his category of "disfavored offenders." In

Bolyard, the trial judge heard arguments on the question of whether defendant should be

sentenced to a term of probation. Following the presentation of these arguments, the judge stated

he personally subscribed to a policy that crimes involving sexual violence " 'were simply not

probationable.' "

,

.

¶ 47 We refuse to invoke the plain-error doctrine on this issue because we find the trial

judge's comments did not deprive defendant of a fair sentencing hearing. See People v. Steppan,

,

(1985) ("The fact that the sentencing judge added

some personal observations before imposing sentence, while not to be encouraged, is of no

consequence.").

¶ 48 At the sentencing hearing, the trial judge stated:

"I do note this is your seventh and eighth felony convictions and

that you've been to [DOC] on three previous occasions. With just

those factors alone, Mr. Scott, you ought and should know that we

are not looking at the minimum that is going to be imposed

- 18 - because the minimum is basically reserved for individuals who

either haven't been to the Department of Corrections in the past,

and you have, or for that matter that don't have as much of a

previous criminal history as you do." (Emphasis added.)

However, prior to sentencing, defendant stated to the court that he felt he should not receive a

lengthy sentence, "[m]aybe six [years,] if that." Reading the complained-of comments in

context, it is clear the trial judge was not adhering or subscribing to a rigid personal policy, but

merely explaining to defendant the reasons he would not be receiving the minimum sentence in

this case. The trial judge placed significant emphasis on the fact defendant was being convicted

of his seventh and eight felonies and had been to prison three times. Based on "those factors

alone," the judge explained defendant would not be receiving the minimum sentence. He went

on to note the lack of mitigating factors and sentenced defendant to two concurrent 13-year terms

in prison.

¶ 49 Unlike Bolyard, where the trial judge refused to consider a sentence of probation

because defendant had committed a specific crime, here the trial judge was merely commenting

on the effect of defendant's criminal history—a factor explicitly listed in the Unified Code of

Corrections as a potential reason for extending a defendant's sentence. 730 ILCS 5/5-5-3.2(a)(3)

(West 2012). We conclude the trial judge was not exercising an unyielding personal policy or

vendetta against defendants who have criminal histories and have served time in prison.

¶ 50 2. Consideration of Compensation Was Not Reversible Error

¶ 51 Defendant next contends resentencing is required because the trial court

considered the fact defendant received compensation for committing the offense as an

- 19 - aggravating factor. The State concedes consideration of compensation was improper, but it

maintains the error was insignificant. We agree with the State.

¶ 52 It is well settled in Illinois that consideration of compensation as an aggravating

factor when a defendant commits the offense of delivery of a controlled substance is improper

because compensation is an element "inherent in the offense." People v. Atwood,

,

(1990) (citing People v. Conover,

,

(1981)). However, to warrant plain-error review, an error at sentencing must be

"sufficiently grave that it deprived the defendant of a fair sentencing hearing." Ahlers,

,

.

¶ 53 Even if defendant's claim were to be reviewed on the merits, remand is not

automatically warranted when a trial court has considered an improper sentencing factor. People

v. Bourke,

,

(1983). In Bourke, our supreme court

explained:

"[R]eliance on an improper factor in aggravation does not always

necessitate remandment for resentencing. Where the reviewing

court is unable to determine the weight given to an improperly

considered factor, the cause must be remanded for resentencing.

[Citations.] However, where it can be determined from the record

that the weight placed on the improperly considered aggravating

factor was so insignificant that it did not lead to a greater sentence,

remandment is not required. [Citations.]"

¶ 54 In Bourke, the trial judge noted in passing three statutory aggravating factors.

Those factors were (1) the defendant received compensation for committing the offense; (2) the

- 20 - defendant had a history of prior delinquency and criminal activity; and (3) the sentence to be

imposed was necessary to deter others from committing the same crime. On review, the supreme

court noted it was improper for the court to have considered the factor of compensation, but it

held "the record adequately demonstrate[d] that the weight placed on the improperly considered

aggravating factor was so insignificant that it did not result in a greater sentence."

,

. The court noted the State had not mentioned compensation in its closing

argument, but rather, had stressed defendant's " 'flagrant violation of the terms of probation,' "

which was the same factor emphasized by the trial court in sentencing the defendant.

¶ 55 We find the circumstances of this case similar to the circumstances in Bourke.

The State mentioned several aggravating factors in its closing argument, none of which were the

fact defendant received compensation for committing the offense. Though the trial judge did not

expressly state he was only considering compensation "in passing," the record, as a whole,

reveals the weight placed on the fact defendant received compensation for committing the

offense was insignificant. See People v. Dowding,

,

(2009) ("In determining whether the trial court based the sentence on proper aggravating

and mitigating factors, a court of review should consider the record as a whole, rather than

focusing on a few words or statements by the trial court."). This court came to this same

conclusion in People v. Schutz,

,

(1990), where we

found remandment unnecessary because the trial court had considered a number of aggravating

factors in addition to compensation, which was only mentioned briefly.

¶ 56 In announcing defendant's sentence, the trial judge only mentioned compensation

once and followed by directly commenting on the extreme nature of defendant's criminal history.

He stated, "based on [defendant's criminal history] alone," defendant would not be receiving the

- 21 - minimum sentence. We conclude this sentencing error is not of the kind which warrants plain-

error review. Defendant's sentence was 13 years—well below the maximum sentence and based

significantly on defendant's extensive criminal history and prior delinquency. See Bourke,

,

(the fact that defendant's sentence was "substantially below the

maximum" was determinative in finding defendant's sentence was not increased based on the

court's consideration of improper factors). Accordingly, we affirm defendant's sentence.

¶ 57 III. CONCLUSION

¶ 58 For the reasons stated, we affirm the trial court's judgment. As part of our

judgment, we award the State its $75 statutory assessment against defendant as costs of this

appeal. 55 ILCS 5/4-2002(a) (West 2012).

¶ 59 Affirmed.

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