December 31, 1998
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
AUGUSTIN MONDRAGON, DEFENDANT-APPELLANT.
The opinion of the court was delivered by: Justice Greiman
Appeal from the Circuit Court of Cook County Honorable Colleen McSweeney Moore, Judge Presiding.
After a bench trial, defendant Augustin Mondragon was convicted of aggravated battery of a child and sentenced to a term of 30 years in prison. On appeal, defendant contests the propriety of his sentence on the grounds that it constitutes an abuse of discretion and improperly subjected him to the truth-in-sentencing provision contained in Public Act 89-404 (Pub. Act 89-404, eff. August 20, 1995), which is allegedly unconstitutional under the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)).
We find that the trial court did not abuse its discretion in imposing a 30-year sentence and that Public Act 89-404 is unconstitutional because it violates the single subject rule. We also find that the subsequent reenactment of the truth-in-sentencing provision in Public Act 89-462 (Pub. Act 89-462, art. II, §280, eff. May 29, 1996) validates the sentencing provision that was contained in the unconstitutional Public Act 89-404 and thus applies to defendant. Accordingly, we affirm defendant's conviction and sentence.
On November 21, 1996, about six months after the effective date of the reenactment of the truth-in-sentencing legislation, defendant lived with his common law wife Inez Roman, their eight-month-old son, and the five-year-old daughter of Roman, who is the victim. On November 21, Roman left home for work about 2:30 p.m. and returned home about 1:10 a.m. the following morning. When the victim returned home from Plamondon School in the afternoon of November 21, 1996, defendant and his eight-month-old son were home.
At trial, the victim testified that when she arrived home from school, she began her homework assignment, which was to write her last name on a piece of paper. At least twice, the victim showed her homework to defendant and he did not pay attention to her. After defendant put the victim's stepbrother to sleep, he approached the victim, who was lying on the bedroom floor on her stomach, doing her homework. Defendant told the victim that she should do her homework and she did not respond. While she was lying on her stomach, defendant then "stood on top of" her and "jumped on" her back. Defendant then hit the victim on both of her cheeks with his hand balled into a fist. Defendant also hit the victim on both of her legs with his fist. Defendant next removed his belt and struck the victim on the back with his belt, more than three times.
Before going to sleep that night, the victim saw her mother and told her what had happened. The following morning, Roman asked the victim about her bruises and walked the victim to school. The victim testified that her teacher (Miss Ramos) asked her about her bruises. After talking to her teacher, the victim went to the hospital. The victim identified pictures of herself and testified that she got the bruises and marks on her body because her "little brother's father" hit her, "jumped" on her, and "kicked" her. In her trial testimony, the victim referred to defendant as her "little brother's father" and also testified that she called him "Poppy."
The victim denied telling her mother, any police officer, any doctor, or her teacher that she (the victim) had run into a wall. The victim denied suffering any of the bruises as a result of falling on a sofa arm and denied ever running into a wall trying to get away from defendant. The victim further testified that she did not like defendant because "he didn't love" her and "he would beat [her] up sometimes with a shoe."
Roman testified that on November 21, 1996, she saw the victim before she went to work in Wheeling and, at that time, she did not see any injuries on the victim's face. When she returned from work about 1:10 a.m., Roman talked to the victim and the victim did not say anything to her at that time. The following morning about 8 a.m., Roman saw the victim and noticed bruising on her face. The victim told Roman that she had hit herself against a wall. As they walked together to school, the victim told Roman that she had fallen off a chair and hit herself on a wall. Then the victim said to Roman that "her Poppy had hit her." Roman left the victim at school and returned home. Roman testified that she first saw the multiple bruises on the victim at the hospital that day (November 22, 1996) and identified pictures of the victim and the multiple bruises depicted in the pictures.
Police officer Albert Guitterrez testified that on November 22, 1996, he was working security for Plamondon school and was contacted by one of the teachers to observe the bruising on the victim's face. The victim told Guitterrez that Poppy had beat her. Guitterrez went to the victim's home, where he arrested defendant. Defendant was 5 feet 6 inches tall and weighed 175 pounds.
Dr. Ayesh Thakker, an expert in pediatric critical care, works at Mount Sinai Hospital in the pediatric intensive care unit and treated the victim in the early afternoon on November 22, 1996, after being summoned to the emergency room to see her. The victim was admitted to the hospital and remained for 15 days. The victim was discharged on December 6, 1996, from the pediatric floor of the hospital with the understanding that she would be transferred to a special unit called Under the Rainbow, which is located in the hospital and deals with the psychological evaluation of children who may be victims of physical abuse.
In the emergency room, Thakker observed the victim's bruises, ordered intravenous fluids based on her dehydration, and ordered various tests, including CAT scans of the abdomen and head, chest X rays, and blood work. The victim discussed and described pain all over her body but specifically in the abdomen. Further examination and test results revealed that the victim suffered complete obstruction of the intestines, meaning that she could not eat or drink until the obstruction was completely relieved and, if the obstruction was not relieved on its own, surgical intervention would be needed to correct the obstruction. Due to the intestinal obstruction, the victim had to receive nutrition through an intravenous procedure for two weeks. Throughout the victim's hospital stay, a pediatric surgery team was involved in her treatment because surgical correction might be required.
Chest X rays revealed fractures to the ribs, which were in the healing stages, indicating probable injuries occurring in the previous two or three weeks. Such injury is not present with minor trauma but rather "usually indicates very severe aggressive local impact *** essentially a severe injury, severe magnitude or force."
The victim told Thakker that her stepfather inflicted the injuries. Thakker testified that "considering the extent of her injuries *** [the victim] seemed to be pretty tolerant of the pain, which was very surprising."
Thakker further testified that the victim's injuries "were not consistent with a fall" based on "the multiple extent of the injuries." She observed that the victim had bruises over the face, arm, legs, back and front. The nature of the injuries indicated "high impact injury or high force injury" and the multiple number of injuries indicated "more than one point of impact." The pattern of injury indicated being struck with a fist or kicked.
Thakker concluded that the victim had suffered nonaccidental or inflicted, high impact or high force, sequential injuries and probably repetitive injuries at many parts of the body. The injuries require "very severe force." Thakker opined that it was "extremely unlikely" that the victim's injuries were caused by running into something at full speed.
In his trial testimony, defendant denied that he ever kicked the victim with his foot, jumped on her back, or punched her with his fist. On November 22, 1996, defendant saw the victim's bruises before she went to school and did not know the source of the bruises on her back. As to other bruises, which he observed on the victim, defendant testified that he "had hit her with a belt on her buttocks" and the arm bruises appeared "where [he] had grabbed her because [he] would squeeze the arms."
Regarding the bruises on the left side of the victim's face, defendant testified that she ran into a door on November 21, 1996. Defendant stated that after the victim returned home from school, he told her to do her homework and she refused. Defendant then told the victim that he "was going to hit her but didn't hit her." The victim "got scared and she ran and when she ran she hit herself against the door."
As to the bruises on the right side of the victim's face, defendant testified that the victim had fallen. Defendant stated that while he was feeding the baby on the bed, he heard something fall. When defendant inquired as to what had happened, the victim said she had fallen.
Regarding the victim's bruises on her buttocks, defendant testified that he hit the victim about four times with a belt because she did not want to do her homework and was not paying attention to defendant. Defendant testified that he wanted to force her to do her homework by threatening her. Defendant took a belt that was hanging on the door and then walked into the kitchen to see the victim. Defendant grabbed the victim by the arm and held her tightly because he wanted to hit her with the belt. Although the victim did not attempt to escape his grasp, defendant explained that he had to hold her because "[w]hen [he] would hit her she would like drop down and then [he] would pick her up by the arms." Defendant recalled hitting her about four times with the belt and testified that "since she's young she probably felt the hits pretty hard."
As to the victim's bruises on her arms, defendant testified that they were caused when he grabbed her as her mother was leaving for work. Defendant stated that after hitting the victim with a belt, the victim went to the kitchen with her mother and expressed a desire to accompany her mother to work. Defendant "grabbed" the victim, "gripped her firmly," and took her into the living room at the request of her mother.
As to the victim's bruises on the lower stomach, defendant testified that she hit herself on the corner of a chair. Defendant stated that after he left the victim in the living room, she began to run toward her mother. Defendant then "grabbed her and *** turned her around." When he "turned her around [the victim] hit herself on a" corner of a chair.
On cross-examination, defendant testified that he had hit the victim before. Defendant stated that the victim ran into the wall on November 20, not November 21, because she was scared that he was going to hit her. Defendant explained that the victim was standing about six inches from a wall and when she turned to avoid being hit by defendant, she hit the wall. Defendant testified: "I tricked her, I was going to hit her and she turned." Defendant testified that he pretended he was going to hit her, wanted her to think he was going to hit her, and wanted to scare her.
After the State waived argument and the defense rested on the facts, the trial court found that the State had proven its case overwhelmingly and found defendant guilty.
At the sentencing hearing, the State argued that defendant had a prior arrest for a battery charge in which there was an outstanding warrant from 1990 and that the evidence adduced at trial supported a finding that his behavior was exceptionally brutal and heinous regarding the victim. In addition, the State asked the trial court to find defendant eligible for an extended- term sentence. The defense rested on the presentence investigation report. The trial court told defendant that he had a right to make a statement. Defendant stated "I would like -- if you are going to give me sentence. I would like to have my appeal so I could fight it."
The trial court imposed a 30-year sentence, stating:
"Based on the evidence before me, the factors that Ihave heard and considered in aggravation andmitigation, the presentence investigation report inthis matter, I find that the acts of the Defendantagainst his stepdaughter are exceptionally brutal andheinous, indicative of wanton cruelty. [S]pecificallypunching a 4-year-old [sic] in the face repeatedly witha closed fist, stomping on her back while she lay onthe floor, jumping up and down, causing internalbleeding to the victim in this case as testified to bythe doctor is simply unconscionable, especially in thelight of his relationship to this little girl and their respective sizes, she being a mere child, and theDefendant being an adult male. The fact that theDefendant has never at trial or as he stands before metoday shown one iota of remorse for these heinous acts, and instead, maintained an incredulous defense that sheobtained these severe injuries by walking into walls.
I also find as a matter of fact that there was greatbodily harm in this case to the victim."
Thereafter, the trial court denied defendant's motion to reconsider the sentence.
On appeal, defendant first asserts that his sentence constitutes an abuse of discretion because the trial court allegedly relied upon improper factors. Specifically, defendant argues that the trial court improperly relied upon the exceptionally brutal and heinous factor, the age of the victim, and defendant's lack of remorse and insistence on innocence. Defendant also contends that his sentence is excessive when compared with the lower sentences of similarly situated defendants in other cases.
It is well established that a sentence that falls within the statutory range will not be disturbed on appeal absent an abuse of discretion. People v. Jones, 168 Ill. 2d 367, 373-74 (1995). Such deference is afforded the trial court because it is in a much better position than a reviewing court to determine an appropriate sentence and weigh factors such as a defendant's credibility, demeanor, and general moral character. People v. Streit, 142 Ill. 2d 13, 19 (1991). We cannot substitute our judgment for that of the trial court merely because we might have weighed the factors differently. Streit, 142 Ill. 2d at 19.
The sentence imposed upon defendant clearly falls within the statutory range. Aggravated battery of a child is a Class X felony. 720 ILCS 5/12-4.3 (West 1996). The sentence for a Class X felony ranges between 6 and 30 years. 730 ILCS 5/5-8-1(a)(3) (West 1996). Furthermore, the sentence for a Class X felony may be extended to a range between 30 and 60 years. 730 ILCS 5/5-8-2(a)(2) (West 1996).
In the present case, the State expressly urged the imposition of an extended-term sentence. Section 5-5-3.2 of the Unified Code of Corrections enumerates factors in aggravation that the trial court can consider in determining a sentence. 730 ILCS 5/5-5-3.2 (West 1996). Subsection (a) lists aggravating factors applicable to nonextended sentences (730 ILCS 5/5-5-3.2(a) (West 1996)) and subsection (b) applies to extended-term sentences (730 ILCS 5/5-5-3.2(b) (West 1996)). Nothing in the sentencing code, however, prohibits the trial court from considering both sets of aggravating factors in making its decision. People v. Compton, 193 Ill. App. 3d 896, 901 (1990). In addition, "it does not matter if a court first determines whether defendant was eligible for extended-term provisions and then determines a nonextended sentence should be imposed." Compton, 193 Ill. App. 3d at 901 (upheld the maximum nonextended sentence). To advance the policy consideration that a sentencing court should be as fully informed as possible, it may consider the aggravating factors in both subsection (a) and (b) even where it decides to impose a nonextended term. People v. Martin, 289 Ill. App. 3d 367, 375 (1997).
As to the specific factors, a court can consider whether "the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty," as stated in subsection (b) (730 ILCS 5/5-5-3.2(b)(2) (West 1996)), in imposing a nonextended sentence (Compton, 193 Ill. App. 3d at 901). Defendant's reliance on People v. Killen, 106 Ill. App. 3d 65 (1982), is particularly unavailing since it was expressly overruled in Compton and has been repeatedly rejected in numerous cases. Martin, 289 Ill. App. 3d at 375 (and cases cited therein).
The statute also provides that a court can consider whether the felony was committed against "a person under 12 years of age at the time of the offense." 730 ILCS 5/5-5-3.2(b)(4)(i) (West 1996). However, a sentencing court may not consider a factor in aggravation where such factor is an element of the crime charged. People v. White, 114 Ill. 2d 61, 68 (1986). Even assuming that the passing mention of the victim's age by the sentencing court constitutes the consideration of an improper aggravating factor, we find such mention insignificant when viewing the entire comments of the sentencing court. See People v. Cortes, 181 Ill. 2d 249, 295 (1998) ("when the totality of the sentencing court's comments are considered, it becomes evident that the court's reference to the statutory aggravating factors was incidental to its larger consideration of the facts surrounding the" crime); People v. Ward, 113 Ill. 2d 516, 526-27 (1986) ("the determination of whether or not the sentence was improper must be made by considering the entire record as a whole").
"It is well established that the court may consider the lack of remorse in determining the appropriate sentence to be imposed upon a defendant, since this is a factor which may have a bearing on the defendant's potential for rehabilitation." People v. Draheim, 242 Ill. App. 3d 80, 94 (1993); see also Ward, 113 Ill. 2d at 529 (citing Illinois Supreme Court cases which held that lack of remorse and failure to show a penitent spirit may properly be considered in determining sentences).
Defendant also argues that his sentence should be reduced because it exceeds the sentences imposed on similarly situated defendants in other cases. To support this argument, defendant summarily relates eight judicial decisions. In response, the State points out the factual and legal differences between the instant case and the eight cases cited by defendant. We would be remiss if we did not acknowledge that the comparative-sentence approach as argued by defendant and employed by this district in People v. Harris, 187 Ill. App. 3d 832 (1989), has been soundly rejected by other courts as fundamentally flawed (see, e.g., People v. Thornton, 286 Ill. App. 3d 624, 636 (2d Dist. 1997) ("we address the question of whether, without referring to other cases, defendant's sentence was excessive"); People v. Bien, 277 Ill. App. 3d 744, 753-55 (4th Dist. 1996) (the comparative-sentence approach "conflicts with both law and public policy"); People v. Terneus, 239 Ill. App. 3d 669, 675 (4th Dist. 1992) (expressly rejected "the Harris analytical approach to claims that a sentence is excessive")).
We may "reduce a sentence as excessive only if it is determined that the trial court abused its discretion in imposing it." People v. Brown, 103 Ill. App. 3d 306, 310 (1982), citing People v. Cox, 82 Ill. 2d 268, 275 (1980), and People v. Perruquet, 68 Ill. 2d 149, 165 (1977). Our authority to reduce a sentence derives from Illinois Supreme Court Rule 615(b)(4)(134 Ill. 2d R.615(b)(4)) and we must exercise such authority "'cautiously and sparingly.'" Jones, 168 Ill. 2d at 378, quoting People v. O'Neal, 125 Ill. 2d 291, 300 (1988). Moreover, "[i]t is not within our prerogatives to reduce a sentence as an act of clemency; a sentence may not be altered absent an abuse of discretion." People v. Hamilton, 155 Ill. App. 3d 555, 562 (1987).
We find nothing in the record or in defendant's arguments to warrant a finding of an abuse of discretion by the trial court. The trial court expressly based its decision on the evidence, the aggravating and mitigating factors presented, and the presentence investigation report. The sentence falls within the statutory range applicable to the offense, albeit the maximum. Under the applicable standard of review, the record, and the totality of the sentencing court's statement, we find that the record fails to establish that the trial court abused its discretion in imposing the statutorily authorized 30-year sentence.
Defendant also asserts that his eligibility for sentencing credit should not be based on the truth-in-sentencing provision enacted by Public Act 89-404 (Pub. Act 89-404, eff. August 20, 1995) because the act violated the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)).
The State acknowledges that appellate decisions have held that Public Act 89-404 is unconstitutional on the ground that it violated the single subject rule and the issue currently is pending before the Illinois Supreme Court. People v. Pitts, 295 Ill. App. 3d 182 (4th Dist. 1998); People v. Reedy, 295 Ill. App. 3d 34 (2d Dist. 1998), appeal granted, 178 Ill. 2d 591 (1998). Nevertheless, the State contends that defendant should be subject to the truth-in-sentencing provision as stated in Public Act 89-404 based on three alternative arguments: (1) the legislation complied with the single subject rule and the cases that held otherwise applied an overly narrow interpretation of that constitutional provision; (2) any defect in Public Act 89-404 has been cured by its subsequent codification; and (3) the subsequent passage of Public Act 89-462 (Pub. Act 89-462, eff. May 29, 1996) served to re-enact the allegedly flawed truth-in-sentencing provision in Public Act 89-404.
Section 3-6-3 of the Unified Code Of Corrections governs the rules and regulations for early release of inmates. 730 ILCS 5/3-6-3 (West 1996). In 1994, the early release section provided that "the prisoner shall receive one day of good conduct credit for each day of service in prison other than where a sentence of 'natural life' has been imposed. Each day of good conduct credit shall reduce by one day the inmate's period of incarceration set by the court." 730 ILCS 5/3-6-3(a)(2) (West 1994). The early release section further provided that additional good conduct credit could be awarded for meritorious service; however, this additional credit was not available to prisoners convicted of specified crimes, including aggravated battery of a child. 730 ILCS 5/3-6-3(a)(3) (West 1994). Under this version of the early release provision, an inmate conceivably may serve only 50% of the sentence imposed by the trial court.
Public Act 89-404, among other things, rewrote paragraph (2) of the early release section to enact the truth-in-sentencing provision, stating, in relevant part, that an inmate serving a sentence for specified offenses "shall receive no more than 4.5 days of good conduct credit for each month of his or her sentence of imprisonment." Pub. Act 89-404, §40, eff. August 20, 1995 (1995 Ill. Laws 4306, 4323-27)(amending 730 ILCS 5/3-6-3(a)(2) (West 1994)). Under this version, an inmate must serve 85% of the imposed sentence.
Public Act 89-404 was held unconstitutional as violating the single subject rule in decisions by the Fourth District in Pitts, 295 Ill. App. 3d 182, and by the Second District in Reedy, 295 Ill. App. 3d 34. We agree with the Pitts and Reedy analysis and Conclusion. *fn1
The single subject rule provides that "[b]ills, except bills for appropriations and for the codification, revision or rearrangement of laws shall be confined to one subject." Ill. Const. 1970, art. IV, §8(d). Public Act 89-404 contained 10 sections, covering subjects on civil forfeiture, criminal sentencing, and hospital liens. Pitts, 295 Ill. App. 3d at 188-89 (details each section); Reedy, 295 Ill. App. 3d at 39-40 (same). We disagree with the State's argument that these decisions were based upon an overly narrow interpretation of the single subject rule mandated by the constitution. Even assuming that 9 of the 10 sections could be considered within the designation of one subject for purposes of the constitutional rule, the section enacting an amendment to the Hospital Lien Act clearly bears no relationship to the other sections and thus Public Act 89-404 violates the single subject rule. Pitts, 295 Ill. App. 3d at 189 (accepts 9 of the 10 sections as meeting the one subject rule but holds that the section dealing with hospital liens fails the one-subject test); see also Reedy, 295 Ill. App. 3d at 42 ("this court simply is unable to identify the 'natural and logical connection' uniting civil forfeiture, criminal sentencing, and hospital liens").
We also reject the State's argument that the subsequent codification of the truth in sentencing provision in July 1996 cured the constitutional infirmity, relying on State v. Mabry, 460 N.W.2d 472 (Iowa 1990). We agree with the Second District, which recently rejected the cure-by-codification argument based on the principle that a constitutional challenge to a statute can be raised at any time. People v. Dainty, 299 Ill. App. 3d 235, 237 (1998) (this appeal addressed a constitutional challenge based on the single subject rule to a different law), relying on People v. Bryant, 128 Ill. 2d 448 (1989).
Finally, the State urges that the flawed Public Act 89-404 subsequently was validated by the passage of Public Act 89-462 (Pub. Act 89-462, art. II, §280, eff. May 29, 1996 (1996 Ill. Laws 588, 655-58)).
In 1996, the General Assembly passed Public Act 89-462, which added the offense of "predatory criminal sexual assault of a child" to the identical truth-in-sentencing provision created in Public 89-404. Appellate courts have rejected the application of Public Act 89-462 because it did not become effective until after the occurrence of the offenses for which these defendants had been charged. E.g., People v. Hindson, No. 2-97-0137 (December 4, 1998); Pitts, 295 Ill. App. 3d at 190. As explained in Pitts, the ex post facto clauses of the United States and Illinois Constitutions (U.S. Const., art. I, §§9, 10; Ill. Const. 1970, art. I, §16) would be violated where the sentencing provisions stated in Public Act 89-462 were applied to a defendant whose conviction was premised on the commission of an offense prior to the enactment of Public Act 89-462. Pitts, 295 Ill. App. 3d at 190.
In the instant appeal, however, we are presented with the commission of an offense (November 21, 1996) after the effective date of the truth-in-sentencing provision (May 29, 1996) enacted in Public Act 89-462. As of this writing, the only case to address this particular scenario has held that Public Act 89-462 validated the truth-in-sentencing provisions and applied it to the defendant's sentence in People v. Nicholson, 299 Ill. App. 3d 256, 268 (4th Dist. 1998). The court in Nicholson reasoned that "we have an unusual situation, whereby language in a former bill, which was previously encumbered by other factors that rendered it constitutionally invalid [Public Act 89-404], is restated in a bill under circumstances whereby it is constitutionally valid [Public Act 89-462]." Nicholson, 299 Ill. App. 3d at 268. Under such circumstance, the Nicholson court found that the subsequent restatement should "be treated as a new enactment" and enforced accordingly. Nicholson, 299 Ill. App. 3d at 268. We agree and thus hold that Public Act 89-462 validated the truth-in-sentencing provision which was applied in the present case.
Unlike Public Act 89-404, which was found constitutionally invalid, there is no argument raised that Public Act 89-462, i.e., the implementing legislation for the truth-in-sentencing provision effective May 29, 1996, suffers a constitutional infirmity or is invalid for some other reason.
For all the foregoing reasons, we affirm the conviction and sentence of defendant.
HARTMAN and THEIS, JJ., concur.