Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County, No. 11 CR 13275, Honorable Stanley J. Sacks, Judge Presiding.
Justices Hoffman and Delort concurred in the judgment and opinion.
¶1 Following a jury trial in the circuit court of Cook County, defendant Cleo Andrews was found guilty of aggravated battery and sentenced to the maximum extended term of 10 years' imprisonment. On direct appeal, the defendant argues that: (1) the court improperly considered the victim's disability as an aggravating factor in sentencing when that disability was an element of the offense; (2) his sentence is excessive in light of the mitigating factors he presented; and (3) this court should amend his mittimus to properly reflect the crime of which he was convicted. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶3 On or around August 19, 2011, the defendant was charged with home invasion and the aggravated battery of Corey Williams, who is paralyzed from the waist down and confined to a wheelchair. On April 3, 2012, the defendant's jury trial commenced in the circuit court of Cook County. At trial, Williams testified that the defendant was a friend who would occasionally drink with him at his home. Williams stated that shortly after midnight on August 5, 2011, he came out of his bedroom and saw the defendant looking through his refrigerator, appearing to be "stumbling drunk." The defendant did not have an "open invitation" and he was not invited over on the night in question. Williams yelled at the defendant and told him to leave. Williams testified that the defendant then hit him on the right side of the face, the force of which knocked him off his wheelchair. The defendant then hit him four or five more times as he was lying on the ground. Williams stated that he went to the bathroom to clean up his face and observed that he was "bleeding bad; bleeding from [his] nose, bleeding from [his] mouth, and [his] eye was swelling up on [him]." When he came out of the bathroom, he saw the defendant asleep on the couch. Williams stated that he then left his residence, called the police, and waited outside for the police to arrive. He testified that he did not go to the hospital for his injuries because he was too upset and wanted to go back inside the house and sleep.
¶4 Officer Faith Reeves (Officer Reeves) testified that she responded to the call and was waved down by Williams, who was waiting outside. She observed that Williams was upset and crying, and that his right eye was swollen. After speaking to Williams, Officer Reeves and her partner entered the residence and saw the defendant sleeping in the front room. As they attempted to wake him, Officer Reeves observed that the defendant smelled of alcohol and was "sluggish and slow to respond."
¶5 The defendant testified that he and Williams were "good drinking buddies" and that he would often spend the night at Williams's house after drinking too much. On the night of the incident, he telephoned Williams to tell Williams that he was coming over, and Williams raised no objection. Later, while he and Williams were drinking on the front porch, they began to argue. During that argument, the defendant made fun of Williams's disability and Williams became upset. At some point thereafter, the defendant told Williams that he "was going to need" to spend the night at Williams's house since he had had too much to drink. Williams told the defendant there was "no way he was going to allow [the defendant] to spend the night" after making fun of him. Williams then went to the bathroom, and the defendant "passed out" on the couch. The next thing the defendant remembered was being awakened by police. The defendant testified that he never hit Williams. Also, the defendant stated that he was never specifically asked to leave and it was not clear to him that Williams did not want him to spend the night.
¶6 In rebuttal, the State called Detective DeWilda Gordon (Detective Gordon), who testified that he interviewed the defendant following the incident. Detective Gordon stated that the defendant admitted that he hit Williams in the face once, but denied having "beat him up." Detective Gordon also testified that he spoke to Williams prior to his interview with the defendant and observed that Williams's face and lip were bruised.
¶7 After the close of evidence and closing argument, the jury returned a verdict finding the defendant not guilty of home invasion, but guilty of aggravated battery. On April 30, 2012, the trial court held the defendant's sentencing hearing. The State argued in aggravation that the facts of the case and the defendant's long history of criminal activity made it appropriate for the court to sentence the defendant to the maximum extended-term sentence of 10 years' imprisonment. Defense counsel contended that the defendant's criminal history and the offense at issue were caused by the defendant's long history of substance abuse problems. In allocution, the defendant apologized for "any trouble that I've caused my friend and also for bringing any kind of problem into your courtroom." He then stated that this case revolved "around alcohol, and I just would ask if you could give me a chance, your Honor, with some help with alcohol classes."
¶8 The court noted that the defendant was extended-term eligible based on a prior conviction within the last 10 years for robbery of a senior citizen. The trial court then sentenced the defendant to the maximum of 10 years' imprisonment, which it explicitly found was appropriate in this case. In announcing its decision, the court stated that it considered the presentence investigation report (PSI), the defendant's statement, the arguments of counsel, and the circumstances and serious nature of the crime. The court also cited the defendant's past criminal record, which it observed was among the top "four or five" worst records it had ever seen. In reviewing that criminal history, the court observed that the defendant's previous conviction of robbery of a senior citizen, and his current conviction of aggravated battery of a physically handicapped person, revealed his propensity for "picking on" vulnerable victims.
¶9 On May 8, 2012, the defendant filed a motion to reconsider his sentence, which the trial court denied. On that same day, the defendant filed a timely notice of appeal. Therefore, this court has jurisdiction to consider the defendant's appeal pursuant to Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013).
¶11 We determine the following issues on appeal: (1) whether the court improperly considered the victim's disability as an aggravating factor in sentencing when that disability was an element of the offense; (2) whether the defendant's sentence is excessive in light of the mitigating factors presented by the defendant; and (3) whether this court ...