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People v. Shaw
State: Illinois
Court: 4th District Appellate
Docket No: 4-02-1011 Rel
Case Date: 09/01/2004

NO. 4-02-1011
 

IN THE APPELLATE COURT
 

OF ILLINOIS
 

FOURTH DISTRICT
 
THE PEOPLE OF THE STATE OF ILLINOIS,
                         Plaintiff-Appellee
,
                         v.

DONALD E. SHAW,
                         Defendant-Appellant
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Appeal from
Circuit Court of
Champaign County
No. 01CF1740

Honorable
John G. Townsend,
Judge Presiding.


JUSTICE STEIGMANN delivered the opinion of the court:

In March 2002, defendant, Donald E. Shaw, pleaded guiltyto criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2000)). Inexchange for his plea, the State agreed to dismiss other charges butmade no agreement with defendant regarding what sentence the trialcourt would impose. In April 2002, the court sentenced him to sevenyears in prison.

Defendant appeals, arguing that the trial court (1) erredby failing to conduct an initial inquiry into his pro se claim ofineffective assistance of counsel and (2) abused its discretion insentencing him. We disagree and affirm.

I. BACKGROUND

In October 2001, the State charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1)(West 2000)) and unlawful restraint (720 ILCS 5/10-3 (West 2000)). The State later charged him with criminal sexual assault (720 ILCS5/12-13(a)(3) (West 2000)).

Defendant was originally represented by appointed counsel. However, in January 2002, he retained private counsel to representhim.

At the March 2002 guilty-plea hearing, the trial courtadmonished defendant that (1) no agreement existed regarding whatsentence the court would impose and (2) if the court accepted hisguilty plea, it could sentence him to either probation or between 4and 15 years in prison. Defendant indicated that he understood thecourt's admonitions and without any reservations wished to pleadguilty.

According to the factual basis the State provided fordefendant's guilty plea, on either August 20 or 21, 2001, Cody C.,defendant's then-3-1/2-year-old grandson, told his mother thatdefendant had touched Cody C.'s penis while Cody C. was visiting hisfather. During an August 27, 2001, interview, Cody C. made thefollowing spontaneous statement to a police investigator: "[Defendant] sucked my wiener, I peed in his mouth, and [defendant] said itwas good." Police also interviewed two other children, both of whomsaid that defendant had engaged in some sort of sexual conduct withthem.

The trial court (1) accepted the State's factual basis,(2) found that defendant had knowingly and voluntarily entered hisguilty plea, and (3) accepted the plea.

At the April 2002 sentencing hearing, Earl Modesto, aDepartment of Children and Family Services investigator, testifiedthat on September 11, 2001, he interviewed Lindsay R., defendant'sgranddaughter and Cody C.'s cousin, who was then almost 10 years old. She told him that on one occasion during the past year, she was lyingin bed when defendant, who was then living with her family, came intoher bedroom, put his hand under the bed covers and down her pants,and rubbed her buttocks. He also rubbed her chest. Defendant thenleft Lindsay R.'s bedroom and went outside to smoke a cigarette. Afew minutes later, he returned and "did the same thing" again.

Urbana police investigator Oscar Gamble testified as tohis August 31, 2001, interview of Cody C. In particular, Gamblestated that Cody C. told him that (1) defendant had "sucked [CodyC.'s] wiener" and (2) "wiener" referred to Cody C.'s penis. Thatsame day, Gamble interviewed Samantha S., Cody C.'s nearly 10-year-old half-sister, who was not related to defendant. Samantha S. toldGamble that on one occasion during the summer of 2001, she and CodyC. went to defendant's apartment complex to go swimming. She andCody C. later went to defendant's apartment and sat in the livingroom. Defendant, who was wearing loose-fitting shorts that exposedhis penis, sat on the couch and asked Samantha S. to sit beside him. She sat on the couch, and defendant asked her to move closer to him. When she did, he asked her to lie down on his lap as he grabbed herand pulled her head down toward his lap. Defendant forced SamanthaS.'s head down to his thigh before she pulled away from him.

Defendant stated in allocution that if the trial courtsentenced him to probation, he would comply with all probationconditions and "undergo to the best of [his] ability" any recommendedtreatment.

The trial court considered the presentence investigationreport (PSI), which indicated, in pertinent part, as follows: (1)defendant, who was then 65 years old, had four prior convictions(three deceptive-practices convictions between 1964 and 1970 and a1996 conviction for driving with a suspended driver's license); (2)defendant's three sisters, who lived in the Arcola area, had offeredto let him live with one of them if he was sentenced to probation;(3) defendant served in the United States Marine Corps from 1953 to1955 and was discharged early due to his low intelligence-quotientscore; (4) defendant had a history of medical problems, includingheart problems, stomach ailments, depression, and arthritis; (5)defendant had a drinking problem; (6) defendant had been prescribedmedication for depression since the 1980s; and (7) a Champaign CountyCourt Services officer had determined that defendant was eligible forintensive probation supervision.

The trial court also considered the following: (1) awritten victim-impact statement from Cody C.'s mother, in which sheindicated that her children have problems with trust, depression,fear, nightmares, and sleepwalking; (2) a written victim-impactstatement from Cody C.'s mother on Cody C.'s behalf, in which sheindicated that Cody C. was scared for her to leave him and followedher everywhere; (3) Samantha S.'s written victim-impact statement, inwhich she stated that she was afraid that defendant would victimizeher again; (4) eight letters of support from defendant's family andfriends, expressing (a) disbelief that defendant could have committedsuch an offense and (b) love and support for defendant; and (5)defendant's medical records from the Veterans' Affairs Medical Centerin Danville, which indicated that between 1996 and 2000, defendanthad been treated intermittently for depression with antidepressantmedications.

After considering the evidence, defendant's statement, andcounsels' arguments, the trial court sentenced defendant as stated. In May 2002, defendant filed an amended motion to reconsider hissentence. On June 14, 2002, defendant personally sent a letter tothe court, in which he asked the court to "reevaluate [his] case." He also wrote, in pertinent part, as follows: "The sentence imposedon me shocked me, for my attorney gave me a misinterpretation of theseriousness of the felony. I was 65 [years] old at the time, and myattorney gave me the impression that I would receive [sic] probation,o[]ther[]wise I would never have taken the [p]le[a] bargain." At anAugust 2002 hearing on defendant's motion to reconsider, neitherdefendant, counsel, nor the court mentioned defendant's letter. After considering counsels' arguments, the court denied the motion toreconsider.

This appeal followed.

II. ANALYSIS

A. Defendant's Claim That the Trial Court Erred by
Failing To Conduct an Initial Inquiry into His
Ineffective-Assistance-of-Counsel Claim

Relying on People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d1045 (1984), defendant first argues that the trial court erred byfailing to conduct an inquiry into his "possible" pro se claim ofineffective assistance of trial counsel, which he set forth in hisJune 14, 2002, letter to the court. He thus requests that this courtremand for a hearing on his ineffective- assistance claim. Wedisagree.

In Krankel, 102 Ill. 2d at 187, 464 N.E.2d at 1048, thedefendant's trial counsel failed to contact an alibi witness orpresent an alibi defense at trial. Based upon these failings, thedefendant pro se filed a motion alleging ineffective assistance ofcounsel. Krankel, 102 Ill. 2d at 187, 464 N.E.2d at 1048. Uponagreement of the parties that new counsel should have been appointedto represent the defendant on his motion, the supreme court remandedthe cause for a new hearing on the motion with newly appointedcounsel. Krankel, 102 Ill. 2d at 189, 464 N.E.2d at 1049.

In People v. Pecoraro, 144 Ill. 2d 1, 15, 578 N.E.2d 942,948 (1991), the supreme court held that the trial court was notrequired to address the defendant's pro se claim of ineffectiveassistance of counsel in accordance with Krankel where the defendanthad privately retained counsel. In so holding, the court discussedthe pivotal distinction between Krankel and the case before it, asfollows:

"Unlike Krankel, where [the] defendant was represented by an appointed public defender at bothtrial and post[]trial motions, defendantPecoraro retained private counsel to representhim at trial and in post[]trial motions. It wasnot within the trial court's rubric of authorityto advise or exercise any influence or controlover the selection of counsel by [the]defendant, who was able to, and did, choosecounsel on his own accord. [Citation.] Moreover, the trial judge could not force [the]defendant to retain counsel other than thatchosen by [the] defendant. [Citation.] [The][d]efendant and his counsel were the onlyparties who could have altered their attorney-client relationship. [The] [d]efendant couldhave retained other counsel to represent himprior to the hearing of his post[]trialmotions." Pecoraro, 144 Ill. 2d at 15, 578N.E.2d at 948.

The supreme court also noted the following differences betweenKrankel and the case before it: (1) unlike in Krankel, the defendantin Pecoraro retained private counsel and did not request that he berepresented by different counsel; (2) in Krankel, the defendantrequested a continuance to obtain new counsel, but the defendant inPecoraro did not; and (3) in Krankel, the parties agreed that thedefendant should have had different counsel argue his posttrialmotion, but no such agreement existed in Pecoraro. Pecoraro, 144Ill. 2d at 15, 578 N.E.2d at 948.

Pecoraro controls our disposition of this issue. Here, asin Pecoraro, defendant retained private counsel of his own choosing. Defendant could have ended that attorney-client relationship andobtained new counsel to represent him in postplea proceedings if heso chose. Contrary to defendant's contention, the mere fact that heobtained the funds to pay for his private counsel from his familydoes not necessarily mean that he could not have obtained new counselto represent him during postplea proceedings. Even if it were truethat defendant could no longer afford to hire another privatecounsel, he could have told the court that he wished to fire histhen-counsel and asked the trial court to again appoint counsel torepresent him. However, as in Pecoraro, (1) defendant did notrequest that he be represented by different counsel; (2) defendantdid not request a continuance to obtain new counsel; and (3) theparties did not agree that defendant should have different counselrepresent him at the hearing on his postplea motion. Thus, inaccordance with our supreme court's decision in Pecoraro, we concludethat the trial court did not err by declining to conduct an initialKrankel inquiry into defendant's "possible" pro se claim ofineffective assistance of counsel.

We also reject defendant's suggestion that we follow Peoplev. Johnson, 227 Ill. App. 3d 800, 592 N.E.2d 345 (1992), and Peoplev. Hayes, 229 Ill. App. 3d 55, 593 N.E.2d 739 (1992), in which theFirst District concluded that Pecoraro was inapplicable. Both casesare factually distinguishable. In Johnson, 227 Ill. App. 3d at 810,592 N.E.2d at 352, the defendant (1) filed a disciplinary complaintagainst his attorney, (2) asked that he be represented by differentcounsel, and (3) requested a continuance to obtain new counsel. InHayes, 229 Ill. App. 3d at 65, 593 N.E.2d at 746, the trial courtrecognized that retained defense counsel did not understand the lawof insanity and did not know who had the burden of proof on theissue. The First District concluded that the trial court wasrequired to step in because it saw the incompetence, which related toan insanity issue. Hayes, 229 Ill. App. 3d at 65, 593 N.E.2d at 746.

As a final matter, we note that if defendant wants to claimthat his privately retained attorney provided ineffective assistanceof counsel, he may pursue his claim under the Post-Conviction HearingAct (725 ILCS 5/122-1 through 122-8 (West 2002)).

B. Defendant's Claim That the Trial Court Abused Its
Discretion by Sentencing Him to Seven Years in Prison

Last, defendant argues that the trial court abused itsdiscretion by sentencing him to seven years in prison. Specifically,he contends that the court (1) ignored mitigating evidence of hismilitary service and depression, (2) improperly gave little credenceto the "strong mitigating evidence," and (3) incorrectly found thatthe public needed protection from him even though the offenses wereunlikely to reoccur. We disagree.

In People v. Kennedy, 336 Ill. App. 3d 425, 433, 782 N.E.2d864, 871 (2002), the appellate court discussed sentencing as follows:

"A trial court's sentencing determinationmust be based on the particular circumstances ofeach case, including factors such as thedefendant's credibility, demeanor, general moralcharacter, mentality, social environment,habits, and age. [Citations.] Generally, thetrial court is in a better position than a courtof review to determine an appropriate sentencebased upon the particular facts andcircumstances of each individual case. [Citation.] Thus, the trial court is the properforum for the determination of a defendant'ssentence, and the trial court's decisions inregard to sentencing are entitled to greatdeference and weight. [Citation.] Absent anabuse of discretion by the trial court, asentence may not be altered upon review. [Citation.] If the sentence imposed is withinthe statutory range, it will not be deemedexcessive unless it is greatly at variance withthe spirit and purpose of the law or ismanifestly disproportionate to the nature of theoffense."

In addition, if mitigating evidence is presented at the sentencinghearing, this court presumes that the trial court took that evidenceinto consideration, absent some contrary evidence. People v.Anderson, 325 Ill. App. 3d 624, 637, 759 N.E.2d 83, 94 (2001). Thetrial court "is not obliged to recite or assign a value to eachfactor presented at the sentencing hearing." People v. Beasley, 314Ill. App. 3d 840, 847, 732 N.E.2d 1122, 1128 (2000). Further, adefendant's rehabilitative potential and other mitigating factors arenot entitled to greater weight than the seriousness of the offense. People v. Pippen, 324 Ill. App. 3d 649, 652, 756 N.E.2d 474, 477(2001).

Criminal sexual assault is a Class 1 felony (720 ILCS 5/12-13(a)(3) (West 2000)), for which the trial court could have sentenceddefendant to 15 years in prison (730 ILCS 5/5-8-1(a)(4) (West 2000)).

In sentencing defendant, the trial court stated, inpertinent part, as follows:

"I have considered the evidence introducedtoday, both in aggravation and in mitigation,and I want to make it clear that I haveconsidered the documentary evidence. I'veconsidered the [PSI]. I have considered the[victim-impact statements].

I have considered all which is appropriate. I have considered only that which isappropriate.

 

* * *

*** I have before me the statute whichapplies to sentencing. I have considered thefactors set forth in aggravation and inmitigation.

 

* * *

I am aware that the mitigation urged by[defense counsel] is present here. Yet, it isalways troubling when a person leads essentiallya law-abiding life and then serious criminalconduct arises late in life.

While I don't mean to ignore thedeceptive[-]practices convictions in the record,since they're all more than 30 years ago, theybear little weight in the sentencing equation.

Clearly, [defendant's] age, his physicalcondition, the family *** upon whom a hardshipwould be worked, clearly, there would be familyimpact as described by [defense counsel] if thesentencing is other than a community-basedsentence.

On the other hand, this is a profoundlyserious crime. This crime had a profoundlyserious impact on its victim.

*** [T]he other acts of sexual conduct withother children *** is profoundly distressing.

It is profoundly distressing in that itindicates that the conduct [to] which[defendant] pleaded guilty is not just simplysome sort of a one-time problem[] but is aproblem which manifests itself over children ofboth sexes and a wide age range.

It is the case that one of the very most,if not the very most, important factors insentencing is to provide offenders with anopportunity to rehabilitate themselves.

It is correct that probation is a preferredsentence, and I am regarding it as the first andforemost in my mind in considering what sentenceis to be imposed here.

It is also the case that another legitimatefunction of sentencing is to protect the publicand to communicate a deterrent message.

Now, I have no belief that anybody in thisfamily would permit [defendant] unimpeded accessto minor children after hearing what he had doneand understanding his admission to that crime.

Nonetheless, the world is full of childrenwho are not members of this family.

This [d]efendant, having committed aserious crime, having engaged in other sexualconduct with children, seems to me to be a[d]efendant, given all of the circumstancespresent here, who presents a circumstance whereit would deprecate the seriousness of theoffense which he committed, would beinconsistent with the ends of justice, andsimply would not protect the public if I were toafford him a community-based sentence.

In my view, the appropriate sentence to beimposed upon [defendant] for the crime of whichhe stands convicted is a sentence ofimprisonment."

The record shows that the trial court was fully aware ofthe circumstances of the crime, the aggravating factors, and themitigating factors, including defendant's military and psychologicalhistory. In addition, the court explicitly stated that it hadconsidered all mitigating factors. The mere fact that the court didnot specifically recite each one of those factors does not call intoquestion the court's consideration of those factors. See Beasley,314 Ill. App. 3d at 847, 732 N.E.2d at 1128 (the trial court "is notobliged to recite or assign a value to each factor presented at thesentencing hearing"). Judged in accordance with the appropriatestandard of review, we conclude that the court's sentencing decisiondid not constitute an abuse of discretion.

In so concluding, we note that defendant essentially asksthis court to reweigh the evidence at sentencing and assign greaterweight to the mitigating evidence than did the trial court. This wewill not do. It is the trial court's duty--not ours--to balance themitigating and aggravating factors and to make a reasoned decision asto the appropriate sentence.

Last, we reject defendant's contention that the trial courtwrongly considered as an aggravating factor that defendant's conductwas likely to recur. In this regard, we also reject defendant'sself-serving claim that no danger of his re-offending exists becausehis family would cut off his access to children. The mere fact thatdefendant's access to his victims up to this point has been throughhis family members in no way means that he would stop sexuallyabusing children simply because such access was denied. Sexoffenders are known to have a high recidivism rate (People v.Diestelhorst, 344 Ill. App. 3d 1172, 1190, 801 N.E.2d 1146, 1160(2003)), and the court correctly determined that "the world is fullof children who are not members of [defendant's] family."

 

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

TURNER and APPLETON, JJ., concur.

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