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People v. Harth
State: Illinois
Court: 2nd District Appellate
Docket No: 2-02-0320 Rel
Case Date: 06/19/2003

No. 2--02--0320


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE
OF ILLINOIS,

          Plaintiff-Appellee,

v.

GARRETT HARTH,

         Defendant-Appellant.

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Appeal from the Circuit Court
of Du Page County.



No. 00--CF--1150

Honorable
Robert J. Anderson,
Judge, Presiding.


JUSTICE GROMETER delivered the opinion of the court:

After a jury trial, defendant, Garrett Harth, was convicted ofunlawful delivery of a substance containing cocaine (720 ILCS570/401(c)(2) (West 2000)) and sentenced to 15 years' imprisonment. On appeal, defendant argues that he was denied a fair sentencinghearing when the trial court admitted a victim impact statement notallowed under the Rights of Crime Victims and Witnesses Act (Act)(725 ILCS 120/1 et seq. (West 2000)). We affirm.

On June 2, 2000, defendant was indicted in this case, No. 00--CF--1150, for conduct allegedly occurring on or about April 12,2000, and in case No. 00--CF--1151 on one count each of unlawfuldelivery of a controlled substance (720 ILCS 570/401(e) (West2000)), unlawful possession with the intent to deliver a controlledsubstance (720 ILCS 570/401(e) (West 2000)), and unlawfulpossession of a controlled substance (720 ILCS 570/402(c) (West2000)). All three charges in case No. 00--CF--1151 were based ondefendant's possession or delivery of paramethoxyamphetamine (PMA)on or about May 13, 2000. On December 19, 2000, the State added afourth count in case No. 00--CF--1151, alleging that, on or aboutMay 13, 2000, defendant committed the involuntary manslaughter (720ILCS 5/9--3(a) (West 2000)) of Sara Aeschlimann by delivering PMAto her.

On June 26, 2001, after a stipulated bench trial, defendantwas found guilty of the first two counts in case No. 00--CF--1151.Apparently, the two counts were merged by the trial court asdefendant was later sentenced only on the unlawful delivery charge. On August 22, 2001, the State nol-prossed the involuntarymanslaughter count. On October 26, 2001, the jury convicteddefendant in this case, No. 00--CF--1150.

The causes proceeded to a combined sentencing hearing. Mostof the testimony in aggravation concerned the circumstances leading to Aeschlimann's death, including defendant's alleged slowness anddishonesty in telling medical personnel and the police what hadhappened. The State argued that this evidence demonstrated thatdefendant was more interested in disguising his own criminalactivity than in trying to save Aeschlimann's life.

The State also introduced a tape of a lengthy conversationbetween defendant and Michael Hamilton, a fellow inmate at the DuPage County jail and a police informant. Hamilton feigned aninterest in selling drugs when he got out. Defendant instructedHamilton in depth on how to sell drugs, primarily ecstasy. He toldHamilton about the different types of the drug, its aphrodisiacpowers, where to obtain it, where to sell it, what prices Hamiltoncould expect to pay or charge, and whom to contact (includingseveral of defendant's acquaintances).

Defendant also discussed his own career as a drug dealer. Herecounted how he began at age 16 (i.e., in 1995) by sellingmarijuana (and later LSD) and how he had managed to turn everyplace where he had worked into a "drug spot." Defendant recalledthat he had been "the one in charge" of several cooperativeventures; that he often sold $200 worth of marijuana in one day athis high school; and that he bought a car with some of his drugproceeds. Defendant expressed no regret over these actions,although he did say that he missed Aeschlimann and would not havebought the pills that caused her death had he known that they werePMA and not ecstasy.

Over defendant's objection, the State introduced a writtenvictim impact statement from Jan Aeschlimann, Sara Aeschlimann'smother, and allowed her to read the statement at the hearing. Mrs.Aeschlimann recalled her grief and depression over the death of herdaughter. She also asserted that on the morning before Sara died,defendant lied about what had happened and did little to help Sara.

The trial court sentenced defendant to concurrent prison termsof 15 years in this case and 4 years in case No. 00--CF--1151. Inpronouncing the sentences, the trial judge briefly acknowledgedthat he had read Mrs. Aeschlimann's statement and the evidence inthe presentencing investigation report (PSIR) that SaraAeschlimann's death had caused her family and friends great pain. The judge noted that defendant had lied to paramedics and thepolice about the circumstances of Aeschlimann's death.

Most of the judge's explanation of the sentences centered onthe evidence of defendant's long-standing involvement in the drugtrade. Noting that defendant was an honor student from acomfortable background, the judge recounted that defendant hadboasted to Hamilton about the great amounts of drugs that he hadsold and how he had gotten away with most of it by using his statusas an honor student and a "good kid." Defendant bragged abouthaving been "the one in charge" in many instances. Even afterdefendant was in jail, he "gave lessons" in drug dealing. Thus,the judge reasoned, the lengthy sentences were necessary to protectthe public from defendant.

Defendant moved to reconsider the sentences, arguing that the court erred in considering Mrs. Aeschlimann's statement and thatthe State's other-crimes evidence was insufficiently reliable. Thecourt denied the motion. Defendant timely appealed.

Defendant argues that he is entitled to a new sentencinghearing because the trial court erred in considering Mrs.Aeschlimann's statement. Defendant asserts that the statement wasinadmissible because Mrs. Aeschlimann was not a "crime victim" andthat the admission of the statement violated due process.

Defendant's first argument is foreclosed by section 9 of theAct, which states, "Nothing in this Act shall create a basis forvacating a conviction or a ground for appellate relief in anycriminal case." 725 ILCS 120/9 (West 2000). In People v.Richardson, 196 Ill. 2d 225 (2001), the supreme court held thatthis language must be applied as written and that section 9 doesnot violate the separation of powers or any rights the stateconstitution gives criminal defendants. The court reasoned thatsection 9 is based on article I, section 8.1(d), of theconstitution (Ill. Const. 1970, art. I,

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