SECOND DIVISION February 14, 2017

No. 1-14-2613

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 18213 ) STACEY MEANS, ) Honorable ) Thaddeus L. Wilson, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court with opinion. Presiding Justice Hyman and Justice Pierce concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Stacey Means was found guilty of the Class 2 felony

of delivery of less than one gram of heroin. Means was sentenced to an extended term of nine

years’ imprisonment and two years of mandatory supervised release. On appeal, Means

maintains that his sentence is excessive in light of the nature of the offense, his nonviolent

criminal background, his history of substance abuse, and the financial impact of his incarceration

on taxpayers. Means also contends that the $2,000 controlled substance fine assessed against him

should have been $1,000 because he was convicted of a Class 2, not a Class 1 felony. We affirm

Means’ sentence and order the clerk of the circuit court of Cook County to correct the order

assessing fines, fees, and costs to reflect a $1,000 controlled substance fine.

¶2 Means was charged with one count of delivery of less than one gram of heroin within

1,000 feet of a school (720 ILCS 570/407(b)(2), 401(d) (West 2012)) and one count of delivery 1-14-2613

of less than one gram of heroin (720 ILCS 570/401(d) (West 2012)). The state dismissed the

charge involving delivery within 1,000 feet of a school before trial.

¶3 On August 27, 2013, Chicago police officer Nester DeJesus was assigned to the narcotics

division as a “buy officer.” He was dressed in plain clothes and drove an unmarked vehicle in the

in the vicinity of 701 N. Trumbull in Chicago. When he engaged a group of males at that

location and inquired about trying to purchase heroin, Means responded and told him to pull

over. Once Officer DeJesus exited the vehicle, Means handed him two ziplock bags with suspect

heroin. Officer DeJesus gave Means $20 worth of prerecorded 1505 funds and then returned to

the vehicle. After driving away from the area, Officer DeJesus informed his team about the

narcotics transaction over police radio, indicated Means’s last known location, and described his

attire. After the enforcement officers detained Means, Officer DeJesus returned to the area and

identified Means as the individual with whom he had engaged in the hand-to-hand transaction

approximately five minutes earlier. Officer DeJesus maintained custody of the ziplock bags

Means gave him until he inventoried them. The prerecorded funds were not recovered from

Means. Surveillance and enforcement officers corroborated officer DeJesus’s testimony.

¶4 The parties stipulated that the ziplock bags inventoried by Officer DeJesus contained 0.5

grams of heroin and that the proper chain of custody was maintained at all times.

¶5 The trial court found Means guilty of delivery of less than one gram of heroin. Means’

motion for a new trial was denied.

¶6 The extended sentencing range for the Class 2 felony of delivery of less than one gram of

heroin where the defendant has been convicted of the same or similar class felony within the

previous 10 years is 7 to 14 years. 730 ILCS 5/5-4.5-35(a), 5-5-3.2(b)(1) (West 2012). At

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sentencing, the State argued in aggravation that Means’s criminal history included five prior

drug-related convictions. Specifically, in 2008, Means received two years’ probation for

possession of a controlled substance (PCS). In 2010, Means was sentenced to one year in the

Illinois Department of Corrections for PCS, and later that year, he was sentenced in a separate

case to two years’ probation for a Class 2 drug-related felony. In 2011, Means was again found

guilty of PCS and received a sentence of 17 months’ imprisonment. In 2012, another PCS

conviction resulted in a sentence of three years’ imprisonment. In light of Means’s history of

repeated drug-related offenses, the State recommended a seven-year sentence.

¶7 In mitigation, defense counsel argued that Means was the father of two children and that

he was worried about being involved in a Department of Children and Family Services (DCFS)

proceeding. Means hoped to get out of prison as soon as possible in order to provide for his

children. Although the presentence investigation report (PSI) indicated that Means was affiliated

with the Traveling Vice Lords street gang, defense counsel reported that Means denied

membership in the gang and asked the court not to consider that part of the PSI. Counsel

represented that Means had been taking GED classes around the time of his arrest, and he was

looking forward to obtaining his GED. During his incarceration, Means completed programs

conducted through the Cook County Department of Corrections, such as janitorial cleaning and

chemical training classes. In the PSI, Means denied having any problems with illegal drugs and

reported participating in drug treatment on two separate occasions while incarcerated.

¶8 In allocution, Means stated that he felt as though he was not guilty, and he was still trying

to change his life in light of his “background and everything.” Although he intended to get his

GED, he said, “things happen.” Means acknowledged his “history of being in trouble” and stated

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that he was learning from his mistakes. To that end, he was working to focus on his education

while in prison. Means told the court he was really trying to get back to his two young children

because he was “going through DCFS with them” and he did not want them to grow up as he did,

without a father around to set an example. Neither Means nor his counsel provided specifics

about any DCFS proceedings.

¶9 Prior to announcing sentence, the trial court stated:

“For purposes of sentencing the court has considered the evidence at trial, the

gravity of the offense, the Presentence Investigation Report, the financial impact of

incarceration, all evidence, information, and testimony in aggravation and mitigation, any

substance abuse issues and treatment, the potential for rehabilitation, the possibility of

sentencing alternatives, the statement of the defendant, and all hearsay presented and

deemed relevant and reliable.”

¶ 10 The trial court then sentenced Means to an extended term of nine years’ imprisonment

and two years of mandatory supervised release.

¶ 11 Means immediately filed a motion to reconsider sentence, which the court denied.

¶ 12 On appeal, Means maintains that his sentence is excessive in light of the nature of the

offense, his nonviolent criminal background, his history of substance abuse, and the financial

burden incarceration places on taxpayers.

¶ 13 Means’ nine-year sentence for the Class 2 felony of delivery of less than one gram of

heroin was on the lower end of the 7-year to 14-year extended term sentencing range (730 ILCS

5/5-4.5-35(a) (West 2012)), which Means was eligible for in light of his prior Class 2 felony

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conviction (730 ILCS 5/5-5-3.2(b)(1) (West 2012)). Means does not contend that the trial court

abused its discretion in determining that he was eligible for an extended term.

¶ 14 Where, as here, a defendant’s sentence falls within the prescribed statutory limits, trial

courts have broad discretion in imposing an appropriate sentence, and we will not find an abuse

of that discretion unless the sentence is greatly at variance with the purpose and spirit of the law

or is manifestly disproportionate to the offense. People v. Jones,

(1995);

People v. Alexander,

(2010). The trial court’s superior position to weigh

factors such as the defendant’s credibility, demeanor, general moral character, mentality, social

environment, and age mandates that a reviewing court refrain from reweighing those factors and

substituting its opinion for that of the trial court. People v. Stacey,

(2000).

¶ 15 Here, the trial court listed the factors considered in imposing sentence, including the

evidence presented at trial, the gravity of the offense, the PSI, Means’s substance abuse

treatment, his statement in allocution, his rehabilitative potential, sentencing alternatives, and the

financial impact of incarceration. Means characterizes the trial court’s recitation of the factors it

considered as “canned,” given that the court included references to “testimony” in aggravation

and mitigation and “hearsay,” despite the fact that no live testimony was presented at his

sentencing hearing. It would be helpful to defendants and reviewing courts alike for trial judges

to articulate the grounds for the particular sentence imposed, particularly when the court elects to

impose a sentence greater than that recommended by the prosecution. We strongly encourage

that practice. But a trial court’s failure to detail precisely for the record the process by which it

determines a defendant’s sentence is not grounds for reversal. People v. Evans, 373 Ill. App. 3d

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948, 968 (2007). And we do not view the trial court’s reference to testimony and hearsay as an

indication that it did not, in fact, consider the factors relevant to Means’s sentence.

¶ 16 Further, the trial court is presumed to have considered the mitigating evidence contained

in the record. People v. Anderson,

(2001). The record reflects that the

trial court was presented with the mitigating evidence in the PSI and in defense counsel’s

argument at sentencing, and nothing suggests that the court did not consider this evidence.

Although the State recommended a seven-year sentence, a court is not bound by the

prosecution’s sentencing recommendation (see People v. Streit,

(1991)),

any more than it is obligated to impose the minimum sentence available. Based on this record,

we find no abuse of discretion by the trial court in sentencing Means to a term of nine years’

imprisonment, which was well within the statutory range. To impose any lesser sentence would

simply be substituting our judgment for that of the trial court.

¶ 17 Means nevertheless maintains that the trial court improperly balanced the small quantity

of heroin involved in this offense with the high cost incarceration imposes on taxpayers. He

argues that his history of drug abuse and non-violent drug-related offenses are indicative of a

man with a drug problem, and not an incorrigible criminal or drug kingpin who needed to be

removed from society for nine years. But Means’s argument overlooks his statement in the PSI

denying any problems with illegal drugs and the fact that he had twice been afforded drug

treatment while incarcerated. The presence of some mitigating factors does not necessarily

warrant a minimum sentence (People v. Flores,

(2010)), and we may

not reverse the trial court’s sentencing determination just because we might have weighed the

relevant factors differently (People v. Spencer,

).

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¶ 18 Means further argues that the excessive nature of his sentence is apparent by comparing it

to his latest three-year sentence imposed in 2012. But this ignores Means’s eligibility for a

minimum sentence in this case of seven years, which he does not dispute. Thus, although the

nine-year term imposed by the trial court was, indeed, three times greater than Means’s 2012

sentence, it was nevertheless toward the lower end of the sentencing range to which he was

admittedly subject. And the fact that Means’s drug arrests were incurred in relatively rapid

succession could support a trial judge’s conclusion that a term in excess of the minimum was

warranted.

¶ 19 The trial court was entitled to consider that Means received five drug related convictions

in the six years before he committed this offense. Furthermore, despite receiving probation and

more lenient prison sentences for his prior convictions, in addition to drug treatment while

incarcerated, Means committed the instant offense approximately 15 months after he was

sentenced to three years’ imprisonment on his 2012 case. Although Means’s release date from

his 2012 conviction does not appear in the record, the three-year sentence was imposed in that

case on May 24, 2012. Given the August 27, 2013 date of arrest in this case, it is apparent that

Means re-offended shortly after his release from prison.

¶ 20 Accordingly, we do not find that Means’s sentence was greatly at variance with the

purpose and spirit of the law or manifestly disproportionate to the seriousness of the offense. See

People v. Teague,

(affirming a defendant’s sentence over

his contention that the trial court failed to account for his rehabilitative potential and finding that

the defendant’s prior opportunities for rehabilitation were relevant aggravating considerations).

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¶ 21 We have considered Means’s suggestion that “the circuit court’s sentence may also have

been improperly driven by a desire to punish [Means] for exercising his right to go to trial.” A

trial court may not punish a defendant who has exercised his constitutional right to a trial by

imposing a longer sentence that it would have had the defendant agreed to plead guilty. People v.

Moriarty,

(1962); see also People v. Latto,

(1999)

(sentence will be set aside where it is evident from the record that the court imposed the

sentence, at least in part, because the defendant availed himself of his right to a trial instead of

pleading guilty). But the record must clearly show that the court imposed the greater sentence as

a punishment for demanding a trial. People v. Carroll,

(1992). For

example, in Moriarty, our supreme court found that the trial court’s remarks at sentencing

constituted reversible error where the trial court stated:

“ ‘If you’d have come in here, as you should have done in the first instance, to save the

State the trouble of calling a jury, I would probably have sentenced you, as I indicated to

you I would have sentenced you, to one to life in the penitentiary. It will cost you nine

years additional, because the sentence now is ten to life in the penitentiary.’ ” Moriarty,

.

¶ 22 In this case, the trial court made no mention of plea negotiations or even hinted at a prior

offer during Means’s sentencing hearing. Moreover, the record reflects that the trial court’s

pretrial inquiries were limited to asking whether any plea offers were made and whether they fell

within the extended term sentencing range, inquiries that are very common for trial judges to

make. Thus, it is not apparent that the trial judge was made aware of the details of any pretrial

offers made by the State. Consequently, because the record is devoid of any intimation from the

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trial court that it would have been better for Means if he pled guilty or that the court imposed the

nine-year sentence to punish Means for going to trial, Means’ argument fails.

¶ 23 Finally, Means maintains, and the State concedes, that his controlled substance fine

should have been $1,000 and not $2,000. See 720 ILCS 570/411.2(a)(2), (3) (West 2012)

(providing that the controlled substance fine is $2,000 for a Class 1 felony and $1,000 for a Class

2 felony). Means failed to challenge his fines and fees in the trial court and so has forfeited

review of that issue. In his brief, citing People v. Lewis,

(2009), Means invokes

plain error as a basis for review of this unpreserved error. Although not directly on point, since it

related to the assessment of an evidenced based fine without evidence to support it, Lewis could

arguably support plain error review here. The State has not argued against plain error review and

so has forfeited that argument. See People v. Williams,

(2000); Ill. S. Ct.

R. 341(h)(7) (eff. Jan. 1, 2016) (“[p]oints not argued are waived”). Therefore, under the

circumstances of this case, we deem it appropriate to address this issue on the merits.

Accordingly, as the amount of the fine was clearly in error, we direct the clerk of the circuit court

of Cook County to correct the fines and fees order to reflect a controlled substance fine of $1,000

and not $2,000.

¶ 24 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 25 Affirmed; fines, fees, and costs order corrected.

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