SECOND DIVISION September 30, 2016

No. 1-14-1063

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 13758 ) ANTHONY WILSON, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Pierce concurred in the judgment. Presiding Justice Hyman dissented, with opinion.

OPINION

¶1 Following a jury trial, Anthony Wilson, the defendant, was convicted of delivery of a

controlled substance within 1,000 feet of a church and sentenced to 15 years’ imprisonment.

On appeal, defendant contends that his sentence is disproportionate to the seriousness of his

offense and constitutes an abuse of discretion by the trial court. We affirm.

¶2 Defendant was charged with one count of delivery of a controlled substance and one

count of delivery of a controlled substance within 1,000 feet of a church. At trial, two police

officers testified and established that defendant sold two bags of white powder to an 1-14-1063

undercover officer near 3724 West Lexington in Chicago on June 22, 2013. A forensic

scientist testified that the powder weighed 1.04 grams and tested positive for heroin.

Additionally, the State entered a stipulation between the parties that defendant was arrested

410 feet from a church. The jury found defendant guilty on both counts. The court merged

the counts and the case proceeded to sentencing.

¶3 At sentencing, the parties established that defendant had prior felony convictions for

possession of a stolen motor vehicle (1986); attempted robbery (1989); delivery of a look-

alike substance (1991); burglary (1992); possession of a controlled substance (1996, 1997,

2001, 2003, 2004, 2008, 2010, and two convictions from 1995); and manufacturing or

delivery of a controlled substance (2007). 1 The presentence investigation report (PSI)

indicated that defendant was the youngest of four siblings and had a "normal childhood." He

graduated from high school and worked as a clerk at a hardware store from 1979 to 1989. At

the time of his arrest, he lived with his mother and provided for his five adult children "when

he was able." Defendant denied using alcohol, but admitted to using "several bags" of heroin

each day "for years" before his arrest. He "detoxed" while in custody and was no longer

addicted at the time of sentencing. Defendant denied gang affiliation, but the Chicago Police

Department reported that defendant was a member of the Conservative Vice Lords.

¶4 In aggravation, the State argued that defendant "began a life of drug dealing and drug

possession at a very early age" and had committed both drug-related and non-drug related

offenses. The State also noted that defendant had been sentenced to terms of one to five years

1 The trial court indicated that it would not consider a conviction for unauthorized use of a weapon (1984), or pending charges for manufacturing or delivery of more than one gram and less than 15 grams of heroin.

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for his 14 prior felony convictions. Based on defendant's continued drug dealing and "life of

crime," the State requested a sentence "much higher" than the sentences he had previously

received.

¶5 In mitigation, defense counsel argued that defendant was 48 years old at sentencing, had

been addicted to heroin since age 24, and had spent "at least half of his adult life" in prison.

According to counsel, defendant was a "product of his environment" and his addiction caused

him to surround himself with people "involved in the drug trade." Counsel acknowledged

that defendant's background was "not mitigating," but "aggravating in ever[y] sense of the

word." However, counsel urged that defendant was a nonviolent "petty" offender and only

sold drugs to "support his own habit." Additionally, counsel observed that defendant had

been respectful throughout the proceedings and had family, including his elderly mother,

who cared about him. Consequently, counsel argued that defendant did not qualify for a

sentence at the "high end of the sentencing range" and that a nine-year term would be

appropriate. Defendant declined to speak in allocution.

¶6 The court sentenced defendant to 15 years' imprisonment. In imposing sentence, the court

stated that it had considered the evidence and arguments, and recited each statutory factor in

mitigation and aggravation. The court found the only applicable mitigating factor was the

hardship that defendant's Class X sentence would cause his family and the "people that he

has a relationship with." The court could not discern whether defendant's "character and

attitude" indicated he was likely to commit another crime, but noted that his "past behavior"

suggested that his conduct "will likely recur." Moreover, the court stated that defendant had a

"very significant history of prior delinquency," which rivaled "the top five of any [criminal

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background] I've seen in such a short amount of time for somebody of the Defendant's age."

According to the court, defendant's 14 prior felony convictions "weigh[ed] very, very

significantly" and demonstrated that "at no time from 1986 until 2013 can he sustain any

period of time whatsoever without committing offenses." The court observed that the present

offense was nonviolent and that defendant's sentence would not deter other offenders.

However, "[b]alancing everything together," including the nature of defendant's Class X

offense, his criminal background, and the factors in aggravation and mitigation, the court

concluded that a nine-year sentence would "deprecate the seriousness of this case coupled

with his background."

¶7 Defendant filed a motion for reconsideration of sentence, which the court denied.

¶8 On appeal, defendant acknowledges that the trial court "considered the statutory factors

in aggravation and mitigation," but contends he was not sentenced according to the

seriousness of his offense or with the goal of rehabilitation. Defendant submits that his 15-

year term is disproportionate to the $20 drug transaction, exceeds the average sentence for

"more serious" crimes, and contravenes the purpose of the Illinois Controlled Substances Act

(720 ILCS 570 et seq. (West 2014)) by punishing him like a drug "trafficker" rather than a

"petty distributor." Defendant also argues that his term of imprisonment exceeds his prior

sentences, and that courts have reduced comparable sentences for "more serious" crimes,

even for repeat offenders. Moreover, defendant claims that the court "gave no indication" it

had considered his addiction, his age, or the fact his criminal history involved "minor"

crimes. Defendant acknowledges that his "extensive criminal history" tends to "undercut his

potential for rehabilitation," and that his offense caused social harm "deserving of some

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retribution," but submits that his drug addiction, "life situation," and nonviolent conduct

favor leniency.

¶9 In response, the State argues that the trial court did not abuse its discretion where it

considered the factors in aggravation and mitigation, including defendant's prior felony

convictions, before imposing a term 15 years below the statutory maximum. Defendant, in

reply, maintains that his sentence nonetheless must be reviewed for "substantive

reasonableness" and does not serve the penological goals of deterrence, rehabilitation,

incapacitation, or retribution.

¶ 10 The reviewing court considers a trial court's sentencing decision with an abuse-of-

discretion standard of review. People v. Alexander,

(2010). A sentence

will be considered an abuse of discretion where it is " 'greatly at variance with the spirit and

purpose of the law, or manifestly disproportionate to the nature of the offense.' "

(quoting

People v. Stacey,

(2000)). However, "[t]he trial court has broad

discretionary powers in imposing a sentence, and its sentencing decisions are entitled to great

deference."

This is because the trial judge "observed the defendant and the proceedings,"

and is better positioned to weigh factors such as the defendant's credibility, demeanor,

general moral character, mentality, social environment, habits, and age.

.

¶ 11 A sentence should reflect both the seriousness of the offense and the objective of

restoring the offender to useful citizenship. Ill. Const. 1970, art. I, § 11; People v.

McWilliams,

. However, the seriousness of an offense, and

not mitigating evidence, is the most important factor in sentencing. People v. Kelley,

. The trial court is presumed to consider "all relevant factors and any

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mitigation evidence presented" (People v. Jackson,

), but has

no obligation to recite and assign a value to each factor (People v. Perkins,

(2011)). Rather, a defendant "must make an affirmative showing that the sentencing

court did not consider the relevant factors." People v. Burton,

. A reviewing court " 'must not substitute its judgment for that of the trial court merely

because it would have weighed these factors differently.' " Alexander,

(quoting Stacey,

). Moreover, our supreme court has expressly declined to

compare sentences imposed in unrelated cases. People v. Fern,

(1999).

¶ 12 A sentence within the statutory guidelines is presumed proper. People v. Knox,

. Delivery of more than one gram but less than 15 grams of heroin is a

Class 1 felony. 720 ILCS 570/401(c)(1) (West 2014). The sentence for a Class 1 felony

ranges from 4 to 15 years. 730 ILCS 5/5-4.5-30(a) (West 2014). Where, as here, a defendant

is convicted of delivering more than one gram of heroin within 1,000 feet of a church, the

crime is a Class X offense (720 ILCS 570/407(b)(1) (West 2014)), with a sentencing range

from 6 to 30 years (730 ILCS 5/5-4.5-25(a) (West 2014)).

¶ 13 In this case, the trial court did not abuse its discretion in sentencing defendant. The 15-

year prison term is presumed proper, as it falls well within the statutory guidelines for a Class

X felony and is not disproportionate to defendant's eleventh drug conviction and fifteenth

felony conviction overall. People v. Kelley,

(affirming

sentence where defendant had eight prior drug convictions and was sentenced to prison five

times). The trial court noted that a lesser sentence would deprecate the seriousness of the

present offense in view of defendant's extensive criminal history. People v. Evangelista, 393

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, 399 (2009) ("criminal history alone" may "warrant sentences substantially

above the minimum"). Moreover, defendant was not deterred by previous, more lenient

sentences. People v. Hill,

(2011) (nonviolence and addiction did

not mandate reduced sentence where defendant had 13 prior drug-related convictions).

¶ 14 Defendant argues, however, that the trial court "failed to recognize" that the Class X

status of the present offense resulted from "trivial facts," namely, that he sold 0.04 grams of

heroin above the Class X threshold and conducted the transaction within 1,000 feet of a

church. This position lacks merit, as nothing in the record suggests the court relied on either

fact in formulating defendant's sentence within the statutory Class X sentencing range.

People v. Dowding,

(2009) (defendant bears burden of establishing

that sentence was based on improper considerations). To the contrary, defendant correctly

concedes that the court reached its sentence after considering the statutory factors in

aggravation and mitigation. Consequently, we find no abuse of discretion in defendant's

sentence.

¶ 15 In conclusion, we find that the defendant's arguments for reducing his sentence

persuasive. However, as an intermediate appellate court, we are constrained by Supreme

Court precedent mandating deferential review of the trial court's sentencing decisions, and by

legislation prescribing the sentences for offenders with multiple convictions. Therefore, we

affirm the judgment of the trial court, but we recommend that the defendant present his

arguments to the Illinois Supreme Court or to the Illinois legislature.

¶ 16 Affirmed.

¶ 17 PRESIDING JUSTICE HYMAN, dissenting.

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¶ 18 The principle of proportionality between crime and punishment is so fundamental, so

inviolable, that the 1970 Illinois Constitution enshrines it in article I, section 11. Ill. Const.

1970, art. I, § 11. This provision protects individuals from disproportionate sentences and

requires that all penalties be determined based on the seriousness of the offense and with the

objective of rehabilitating the offender to a useful citizen. (“Proportionality clause” here

refers to both clauses, proportionate penalties and rehabilitation). I believe Anthony Wilson's

15-year sentence was excessive in light of the nature of his crime—Wilson sold a $20 bag of

heroin to an undercover police officer to pay for his unshakeable drug habit.

¶ 19 Lengthy incarceration for nonviolent drug-addicted offenders has not served as a

sufficient deterrent to other nonviolent drug offenders. See Mirko Bagaric, Samantha

Hepburn, Lidia Xynas, The Senseless War: The Sentencing Drug Offenses Arms Race, 16

Oregon Review of International Law 1 (2014) (asserting that available data suggest no

correlation between longer prison terms for drug offenders and reduction in availability and

use of drugs). Neither has Wilson's prior stints in prison defeated his drug habit or made him

into a useful, law-abiding citizen. Because Wilson's criminal history has been nonviolent and

he acknowledges his drug problem and appears willing to undergo drug treatment, I would

remand for a determination of his eligibility for participation in a drug court program under

the Drug Court Treatment Act. 730 ILCS 166/1 et seq. (West 2014).

¶ 20 Reviewing courts accord deference to a circuit court’s sentencing decision because of its

unique perspective in assessing an appropriate sentence. See People v. Stacey,

(2000). Consequently, a reviewing court usually will not substitute its judgment for

that of the circuit court merely because it would have weighed the various sentencing factors

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differently.

. While wide, the circuit court’s discretion in sentencing is not without

limits.

A sentence within the statutory range “will be deemed excessive and the result of

an abuse of discretion by the trial court where the sentence is greatly at variance with the

spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.”

. Under those circumstances, a reviewing court may reduce the sentence imposed by

the trial court. See Supreme Court Rule 615(b)(4) (eff. Aug. 27, 1999). And for an important

and essential reason—Illinois courts “must adhere to our constitution's mandate that penalties

be determined according to the seriousness of the offense.”

; see Ill. Const.

1970, art. I, § 11 (sentences determined “both according to the seriousness of the offense and

with the objective of restoring the offender to useful citizenship”).

¶ 21 In Stacey, our supreme court invoked the constitutional mandate to reduce a defendant's

excessive sentences from 25 years to 6 years. The court did not reweigh the aggravating and

mitigating factors but instead, relied exclusively on “the nature of the crimes” to construe the

defendant's sentence as unconstitutionally excessive. Stacey,

. Under Stacey

and article I, section 11, of the Illinois Constitution, a reviewing court may reduce a sentence

that is “manifestly disproportionate” to the nature of the offense or the circumstances of the

case, even if the trial court properly weighed the aggravating and mitigating factors in

determining a sentence. Wilson's sentence does fall within the statutory limits, but I believe

that because of the nature of his offense it was excessive and triggers our constitutional

obligation to provide relief.

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¶ 22 "A sentence lacking any legitimate penological justification is by its nature

disproportionate to the offense," Justice Kennedy reemphasized in Graham v. Florida,

(2010). Thus, we must analyze the justification for Wilson's sentence.

¶ 23 As the circuit court noted, Wilson's offense—delivering 1.04 grams of heroin within

1,000 feet of a church—was nonviolent in nature. Like his prior offenses, which were also

nonviolent, one thing motivated him—an evil master known as chronic drug addiction. While

not an excuse or justification for what Wilson did, drug addiction has been criminalized and

Wilson’s particular circumstances indicate he is a prisoner both of his addiction and due to

his addiction.

¶ 24 In 2011, the American Society of Addiction Medicine redefined addiction as a chronic

brain disease, as opposed to a social or behavioral disorder.

http://www.asam.org/docs/default-source/public-policy-

statements/1definition of addiction long 4-11.pdf. Like other chronic diseases, addiction

involves cycles of relapse and remission. Without treatment or recovery activities, addiction

is progressive and can result in disability or premature death.

Like alcoholism and

gambling, drug addiction “possesses” its victim. See National Drug Control Strategy,

https://www.whitehouse.gov/ondcp/drugpolicyreform. Wilson certainly fits this description.

He became addicted to heroin when he was 24 years old, and thus, has been an addict, with

periods of recovery and relapse for more than half of his life.

¶ 25 Does sentencing Wilson to 15 years in prison help him recover from his addiction and

make him a useful citizen? Not based on his stays in prison and on numerous studies.

(discussing reforms, like the expansion of specialized courts, which divert non-violent drug

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offenders into treatment instead of prison). Although more than 50% of state prisoners meet

the criteria for a diagnosis of drug abuse or dependence, at most, 10% of those surveyed

received clinical drug treatment while incarcerated. Zarkin G.A., Cowell A.J., Hicks K.A.,

Mills M.J., Belenko S., Dunlap L.J., Houser K.A., Keyes V., Lifetime Benefits and Costs of

Diverting Substance-Abusing Offenders From State Prison, The Journal of Crime and

Delinquency (Nov. 2012). Even when prisoners do get treatment in prison, it is not as

effective as community-based treatment more effective and helps people reintegrate

themselves into the community.

http://www.justicepolicy.org/images/upload/08_01_rep_drugtx_ac-ps.pdf. Moreover, drug

treatment is less expensive and more cost-effective than incarceration and studies suggest

that if just 10 percent of eligible offenders were sent to community-based substance abuse

treatment programs, the criminal justice system would see a $4.8 billion savings. Thus,

because alternatives to lengthy incarceration benefit both the addict and society at large, I

believe that we would be better served if drug addicts, like Wilson, who are willing to

undergo treatment, were sentenced to shorter prison terms, subject to successful and ongoing

participation in community based drug treatment programs.

¶ 26 Further, Wilson's sentence reflects an offense considerably more egregious and more

serious than his. Wilson made a $20 delivery of heroin to an undercover police officer. The

amount of drugs in question—1.04 grams—was .04 grams over the amount that makes it a

Class 1 felony, subject to a 4 to 15 year sentence (before the enhancement for delivery within

1,000 feet of a church, which put the range at 6 to 30 years). There is no question this was a

small transaction for the sole purpose of making $20 to feed Wilson's own drug habit.

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¶ 27 As with Wilson's prior convictions there was no violence or guns involved. Yet, Wilson's

15-year sentence is equivalent to or in excess of the average sentence for more heinous

crimes, including criminal sexual assault (9.7 years), predatory criminal sexual assault (10.8

years), aggravated battery with a firearm (10.9 years), aggravated kidnapping (13.2 years)

and armed robbery resulting in great bodily harm. (14.4 years). Illinois Sentencing Policy

Advisory Council, Report on House Bill 4123-Changes to Truth in Sentencing Restrictions,

April 2015 (http://ww.icjia.il.us/spac/pdf/HB4123_TIS_Restrictions_Nekritz_04915.pdf).

¶ 28 Moreover, Wilson's sentence does not serve the General Assembly's purpose in enacting

the Controlled Substances Act, which, according to section 100 of the Act, was "not *** to

treat the unlawful user or occasional petty distributor of controlled substances with the same

severity as the large-scale, unlawful purveyors and traffickers of controlled substances." 720

ILCS 570/100 (West 2014). That is precisely what this sentence does. Consider that the

average sentence for a class X drug offense, usually involving 100 grams or more, is 11

years.

¶ 29 Incarcerating Wilson for 15 years is also unlikely to protect the public from harm or

decrease drug use. As Wilson notes in his reply brief, "scientific evidence indicates that the

incarceration of drug offenders does not have a significant deterrent effect on drug use."

Roger K. Przybylski, Correctional and Sentencing Reform for Drug Offenders: Findings on

Selected Key Issues (2009). It does, however, cost Compared to the cost of incarcerating

Wilson for 15 years, as incurred by the State, Wilson's family, and Wilson himself, his

sentence is not reasonable.

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¶ 30 The circuit court acknowledged that a 15 year sentence would not deter other offenders.

But the State suggests the sentence was warranted because Wilson committed his crime

within 1,000 feet of a church. The State asserts the legislature included this provision in the

statute "to protect anyone on the grounds of and/or attending churches, schools, etc., because

these types of places are generally open to the public with relaxes security." But, again,

statistics belie this assertion—as crime has not decreased in these areas. There is evidence,

however, that “1,000 foot laws” have a racially disparate effect, given the proliferation of

churches in predominantly black neighborhoods. An entire area can fall into a protected

zone. Judith Greene, Kevin Pranis & Jason Ziedenberg, Justice Policy Inst., Disparity by

Design: How Drug-Free Zone Laws Impact Racial Disparity--and Fail to Protect Youth 1

(2006), http://www.justicepolicy.org/uploads/justicepolicy/documents/06-

03_rep_disparitybydesign_dp-jj-rd.pdf. Thus, these safe zone statutes do not serve their

intended purpose and disproportionately affect minorities, thereby, raising hard questions

about their continued efficacy.

¶ 31 Drug addiction is a multifaceted illness. And, as borne out by news headlines, whether it

is heroin, methamphetamine, or any other nefarious substance, the use of drugs, particularly

among our youth, continues to exact a massive human and economic toll on our society and

affect people of all backgrounds, ages, and incomes. Treating this illness with incarceration

has not worked, as research by the United States Justice Department suggests, showing that

two-thirds of drug offenders who leave state prison will be re-arrested within three years and

nearly half will return to prison either through a technical violation of their sentence—such

as failing a drug test—or for a new offense. Doug McVay, Vincent Schiraldi, Jason

Ziedenberg, Treatment or Incarceration?: National and State Findings on the Efficacy and

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Cost Savings of Drug Treatment Versus Imprisonment, Justice Policy Institute 18 (January

2004).

¶ 32 Although imprisoning offenders may seem like the best option in terms of public safety,

it does not prevent people from cycling in and out of the prison system and returning to

society with the same problems they had when they entered prison.

The approach we take

in dealing with this illness—effective forms of treatment or continual and repeated

incarceration—will determine whether many of its sufferers will be aided in becoming

useful, law-abiding citizen or will continue on this destructive cycle. It will also say a great

deal about the value we place in saving lives and protecting our communities.

¶ 33 In 2002, in recognition of the "dramatic effect" the use and abuse of drugs has on the

criminal justice system, the Illinois General Assembly adopted the Drug Court Treatment Act

to "create specialized drug courts with the necessary flexibility to meet the drug problems in

the State." 730 ILCS 166/5 (West 2014). Under the Act, a defendant charged with a Class 2

or greater felony, who has not been convicted of a "crime of violence" within the past 10

years, may be eligible for the drug court program if he or she meets certain requirements,

including acknowledgement of his or her drug addiction and a demonstrated willingness to

participate in drug treatment program. If a defendant successfully completes a drug court

program, the trial court “may dismiss the original charges against the defendant or

successfully terminate the defendant's sentence or otherwise discharge him or her from any

further proceedings against him or her in the original prosecution.” 730 ILCS 166/35(b)

(West 2014).

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¶ 34 The Act further provides that if a defendant is not performing satisfactorily in or

benefitting from the program, has engaged in criminal conduct, or otherwise violated the

terms and conditions of the program the trial court “may impose reasonable sanctions under

prior written agreement of the defendant, including but not limited to imprisonment or

dismissal of the defendant from the program and the court may reinstate criminal

proceedings against him.” 730 ILCS 166/35(a) (West 2014).

¶ 35 Wilson's 15-year sentence does not reflect the degree of seriousness and the

circumstances of his offense—selling a $20 bag of heroin to pay for his own drug habit—and

will not serve the objective of restoring him to useful citizenship. Thus, absent a legitimate

penological justification for the sentences, it is, by its nature, disproportionate to the offense.

Graham v. Florida,

(2010).

¶ 36 Wilson seems to be precisely the type of defendant with the type of problem that the drug

court program was designed to address. His current and prior convictions have been

nonviolent; he acknowledges his chronic heroin problem; and he appears willing to undergo

treatment, Assuming he meets all of the eligibility requirements under the Act, his successful

participation in that program is much more likely to further the goal of restoring him to

useful citizenship than a 15-year prison sentence. Therefore, exercising our authority under

Rule 615(b)(4), I would affirm the circuit court’s judgment, but reverse his sentence and

remand to the trial court to consider whether he is eligible for sentencing under the Drug

Court Treatment Act. 730 ILCS 166/1 et seq. (West 2014).

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