Appeal from the Circuit Court of Lee County. No. 09-CF-60 Honorable Jacquelyn D. Ackert, udge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hutchinson concurred in the judgment and opinion.
¶ 1 After the defendant, Balal Abdelhadi, pled guilty to aggravated arson (720 ILCS 5/20-1.1 (West 2008)), the trial court sentenced him to 10 years' imprisonment. The defendant appeals from that order, arguing that the trial court relied on an improper factor in sentencing him. We agree and therefore reverse and remand for a new sentencing hearing.
¶ 2 On April 11, 2009, the defendant was charged by criminal complaint with aggravated arson (id.). The complaint alleged that the defendant committed arson, partially damaging a residence located at 1604 West 3rd Street in Dixon, Illinois, while he knew or should have known that Shanna M. Withers was present therein. On August 13, 2009, the defendant pled guilty to the charged offense. According to the factual basis for the plea, various witnesses would testify that, on April 11, 2009, the defendant, along with Jennifer Hurd and Robert Cordle, plotted to burn the house where the former boyfriend of Cordle's girlfriend was staying. The defendant had told the police that he threw a lighted bottle of gas at the house, causing it to catch fire. The defendant acknowledged that he knew there were people in the house. The trial court accepted the defendant's guilty plea and set a sentencing date for October 21, 2009.
¶ 3 At the sentencing hearing, the State noted that aggravated arson is a Class X felony punishable by a prison term of 6 to 30 years, or an extended prison term of up to 60 years (id.). The State then argued that the trial court should consider in aggravation: (1) the defendant's acts endangered or could have endangered the lives of one or more people inside the building; (2) the defendant had a criminal history; and (3) the defendant was on probation when the crime was committed. In mitigation, the defendant presented several pictures of the damage to the house, which showed only char marks on the house's exterior siding. The defendant also introduced three pieces of artwork that he had drawn, which were intended to show his remorse for the offense. Finally, defense counsel read the defendant's statement of allocution, which expressed the defendant's remorse for his crime, his intention to stay off of drugs, an apology to Withers, an apology to the defendant's family, and a plea for mercy from the trial court.
¶ 4 At the close of the hearing, the trial court announced that it had considered all of the evidence presented, including the factors in aggravation and mitigation. The trial court then stated:
"Specifically in aggravation the Court has considered that the conduct caused by the defendant did, in fact, endanger the lives of individuals. That he was on probation at the time of the event. Court has considered his criminal history in aggravation.
The Court in mitigation has considered the defendant's age, his minimal education and other factors in mitigation."
¶ 5 After announcing the factors that it had considered, the trial court sentenced the defendant to 10 years' imprisonment and 3 years' mandatory supervised release. Following the denial of his motion to reconsider the sentence, the defendant filed a timely notice of appeal.
¶ 6 The defendant's sole contention on appeal is that his 10-year sentence is excessive. Specifically, the defendant argues that the threat of harm to others was an improper aggravating factor because that factor was inherent in the offense of aggravated arson.
¶ 7 The State argues that the defendant forfeited this issue by not raising it before the trial court during the sentencing hearing or in his motion to reconsider the sentence. However, an argument not properly preserved for review can be reviewed if plain error occurred. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Harvey, 211 Ill. 2d 368, 386 (2004). The plain-error doctrine allows a reviewing court to consider unpreserved error when a clear or obvious error occurred and (1) the evidence was so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) that error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The second scenario is potentially present here, because when a trial court considers erroneous aggravating factors in determining the appropriate sentence of imprisonment, the defendant's "fundamental right to liberty" is unjustly affected, which is seen as a serious error. (Internal quotation marks omitted.) People v. James, 255 Ill. App. 3d 516, 531 (1993). For plain error to exist, however, we must first decide that an error actually occurred. People v. Naylor, 229 Ill. 2d 584, 593 (2008). Therefore, although the defendant otherwise forfeited the issue by not raising it during the sentencing hearing or in the motion to reconsider the sentence, we will review his contention under the plain-error doctrine. See James, 255 Ill. App. 3d at 531.
¶ 8 Imposition of a sentence is normally within a trial court's discretion (People v. Jones, 168 Ill. 2d 367, 373 (1995)), and there is a strong presumption that the trial court based its sentencing determination on proper legal reasoning, such that the trial court's sentencing decision is reviewed with great deference. People v. Dowding, 388 Ill. App. 3d 936, 942-43 (2009). The presumption is overcome only by an affirmative showing that the sentence imposed varies greatly from the purpose and spirit of the law or manifestly violates constitutional guidelines. People v. Escobar, 168 Ill. App. 3d 30, 46 (1988). Nonetheless, the question of whether a ...