Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. Nos. 01 CR 28427; 01
CR 28428 The Honorable Angela Munari Petrone, Judge,
JUSTICE GORDON delivered the judgment of the court, with
opinion. Presiding Justice Burke and Justice McBride
concurred in the judgment and opinion.
1 After a bench trial in Cook County circuit court, defendant
Nathaniel Stephens, who was 19 years old at the time of the
offense in 2001, was convicted of the first degree murder and
aggravated battery of a 4-month-old infant. For reasons that
we discuss below, defendant was sentenced three times. At the
third and most recent sentencing on April 16, 2015, defendant
was sentenced to a total of 29 years with the Illinois
Department of Corrections (IDOC). On this appeal, defendant
raises challenges only to his 29-year sentence and asks this
court (1) to reduce his sentence to the minimum, which is 26
years; (2) to remand for resentencing before a different
judge; or (3) to order the reinstatement of his first
sentence, which consisted of two concurrent 25-year sentences
for his first degree murder and aggravated battery
convictions. For the following reasons, we affirm.
3 In a prior opinion, we summarized the facts of this case as
"During 2001, defendant was the sometime-live-in
boyfriend of Trenatta Richardson, the mother of the
four-month-old victim. On October 25, 2001, while defendant
babysat her, the victim suffered a broken leg. The victim
died from blunt trauma injuries on November 2, 2001, after
being in defendant's care. On November 3, 2001, in a
videotaped confession, defendant admitted to hitting the
victim's head into a door frame three times and punching
the victim in the ribs three times on November 2, 2001, to
stop the victim from crying.
Defendant was charged in separate indictments with: (1)
aggravated battery to a child for the incident on October 25,
2001, when the victim suffered a broken leg; and (2) first
degree murder for the incident on November 2, 2001, when the
victim died from blunt force trauma injuries."
People v. Stephens, 2012 IL App (1st) 110296,
4 In our prior opinion, we described in detail the evidence
at trial, and we incorporate that opinion by reference.
Stephens, 2012 IL App (1st) 110296, ¶¶
38-60 (description of evidence at trial). Since there are no
issues on this appeal regarding the evidence at trial, there
is no need to repeat that description here.
5 As noted above, defendant was sentenced three times. After
the bench trial, defendant was sentenced on August 30, 2005,
to two concurrent sentences of 25 years with
IDOC.This is the initial sentence that defendant
would now like restored.
6 At the sentencing hearing on August 30, 2005, the State
entered into evidence two certified statements of conviction,
for possession of a stolen motor vehicle and possession of a
controlled substance with intent to deliver, and then stated
that it had "nothing further in terms of evidence for
7 In mitigation, defense counsel argued that defendant was
only 19 years old at the time of the offense and suffered
from "mental retardation and mental handicaps" and
thus deserved imposition of the minimum sentence. In
response, the State argued that it had not "been
established to any certainty that the defendant is, in fact,
mentally retarded." The State observed that there were
IQ tests in the record and conceded that the defense could
argue diminished capacity but not mental retardation. The
State also argued that this case marked defendant's fifth
felony conviction, which, "at his young age" of 22,
"makes him a career criminal." The State did not
argue for a particular sentence or even a particular
sentencing range but asked only for "an appropriate
8 The trial court then observed that defendant was convicted
"of the offense of aggravated battery of a child which
is a Class X offense with a range of sentence anywhere from
six years to thirty years and also the offense of first
degree murder on this child that carries with it a range of
sentence beginning at 20 years."
9 As noted, after considering the factors in aggravation and
mitigation, the trial court sentenced defendant to two
concurrent 25-year sentences, with credit for time served.
10 After defendant received this sentence, the State argued
on direct appeal that the trial court erred in sentencing
defendant to concurrent sentences when consecutive sentences
were statutorily required. Stephens, 2012 IL App (1st)
110296, ¶ 64. On December 24, 2009, this court affirmed
his convictions but agreed with the State that consecutive
sentences were mandatory and that his concurrent sentences
must be vacated. People v. Stephens, No. 1-05-3365
(2009) (unpublished order under Supreme Court Rule 23). We
explained: "When a trial court imposes concurrent
sentences but consecutive sentences are mandatory, the
sentencing order is void and the appellate court has the
authority to correct the sentence 'at any time.'
" Stephens, slip order at 27 (citing People
v. Arna, 168 Ill.2d 107, 113 (1995)). Concerning the
resentencing, we instructed the trial court that "[i]t
is within the trial court's discretion to determine the
length of each sentence to be imposed, within the permissible
statutory sentencing range." Stephens, slip
order at 30. Our remand resulted in defendant's second
sentence. Specifically on June 9, 2010, the trial court
sentenced him to two consecutive 25-year sentences with IDOC.
11 However, the trial court issued this sentence without
defendant or his counsel being present. Stephens,
2012 IL App (1st) 110296, ¶ 67. The entire proceeding
consisted of the following statement by the trial court:
" 'THE COURT: These are the cases of Nathaniel
Stephens. The defendant is not in court. For both the cases
the Appellate Court mandate has been issued and the
mandate-and the mandamus, excuse me, shall be spread of
record on each of the cases. The mittimus is corrected.
Defendant sentenced to 25 years consecutive and it is nunc
pro tunc to August 30th, 2005. Actually, let me phrase it
this way: One case is 28427 and the other case is 28428. On
27 the sentence is 25 years Illinois Department of
Corrections. On 28428 the sentence is 25 years Illinois
Department of Corrections consecutive to 01 CR 28427. Both
sentences are nunc pro tunc. Let me just add this little part
too, on 28427, that sentence is on Count 3. And it will be
off call.' " Stephens, 2012 IL App (1st)
110296, ¶ 121.
12 Subsequently, defendant filed a pro se
postconviction petition, which was summarily dismissed. On
the postconviction appeal, this court affirmed the dismissal
of defendant's petition but vacated his two consecutive
25-year sentences due to the trial court's failure to
hold a sentencing hearing. Stephens, 2012 IL App
(1st) 110296, ¶ 123. We remanded for resentencing,
observing that section 5-5-3(d) of the Unified Code of
Corrections (Code) (730 ILCS 5/5-5-3(d) (West 2004)) provides
in relevant part: "
'In any case in which a sentence originally imposed is
vacated, the case shall be remanded to the trial court. The
trial court shall hold a hearing under Section 5-4-1 of the
Unified Code of Corrections which may include evidence of the
defendant's life, moral character and occupation during
the time since the original sentence was passed. The trial
court shall then impose sentence upon the defendant.'
" Stephens, 2012 IL App (1st) 110296, ¶
123 (quoting 730 ILCS 5/5-5-3(d) (West 2004)).
13 Since it is this third sentencing that is at issue on this
appeal, we describe it here in detail.
14 After we remanded the case a second time, it was assigned
to a new trial judge pursuant to defendant's petition for
substitution of judge. At the subsequent sentencing hearing
held in 2015, the State did not call any witnesses but
relied, in aggravation, on the seriousness of the offense and
defendant's prior criminal history. Defendant's
criminal history consisted of a total of five convictions,
which were for the two convictions in the instant appeal, as
well as three convictions for (1) possession of a stolen
motor vehicle in 1999, (2) possession of a controlled
substance in 2000, and (3) another possession of a controlled
substance in 2001.
15 In mitigation, defendant called five witnesses: (1)
Ewenell McCulough, a correctional agent with the Cook County
sheriff's department; (2) Norlandi Young, a correctional
agent at the Cook County jail; (3) Sheteila Allen,
defendant's sister; (4) Melanie Porter, the mother of
defendant's three children; and (5) Mary Porter,
Melanie's mother and the grandmother of defendant's
16 Ewenell McCullough testified that he was a correctional
sergeant with the Cook County sheriff's department and
that he has worked at the Cook County jail for 24 years.
McCullough was assigned for over a year to division one of
the jail, where defendant was detained. The division one
assignment was from "roughly" June 2013 through
July 2014. During that time, defendant worked for McCullough
cleaning up "the tier" and feeding the other
detainees. McCullough described defendant as follows:
"He was always cooperative. I never had a problem with
him. I never gave him a disciplinary. He was always
respectful and did his job."
17 Norlandi Young testified that she was also a correctional
sergeant with the Cook County sheriff's department, where
she had been employed for 17½ years. Young had worked
in division one for three years and had known defendant for
about two years. During that time, defendant had worked
"for the tier" where he will "[c]lean the
showers, clean the day room, mop, sweep the floors."
Young described defendant as "[v]ery respectful, never
had any problems with him." To her knowledge, defendant
had not had a disciplinary action or ticket issued against
him since he had been in division one.
18 On cross-examination, Young was asked whether, of the 1200
detainees in division, one, it was "fair to say that
many are respectful?" Young responded: "It's
not many." She explained that more detainees were
disrespectful than respectful to the correctional officers.
On redirect examination, Young testified that she would
classify defendant's behavior as unusual and that, while
tickets may be issued for many reasons including minor
infractions, defendant did not have any tickets at the Cook
County jail. Young testified that the Cook County jail was
not an easy place to live and that inmates have altercations
with each other but that she had never observed defendant in
an altercation with anyone.
19 Sheteila Allen, defendant's sister, testified that she
was 30 years old and had been employed for almost 10 years in
housekeeping at the Fairmount Hotel. In school, defendant was
in special education for a learning disability and had
difficulty with reading and math and completing his homework.
Her parents had told her that, when defendant was born, he
had excess fluid on his brain. When defendant was a child, he
had an unusually large head.
20 Allen testified that their mother and aunt shared a
two-flat building and over 15 children lived there. Their
mother was addicted to heroin and also used cocaine when
Allen was five or six years old and continuing into
Allen's teen years. Sometimes there was no food, and
defendant "would go outside and do the things, like,
maybe sell drugs or whatever to provide for us, to make sure
that we ate" or had clothes or shoes. Although defendant
received Social Security when he was a child, their mother
received the money and would sometimes use it for her drug
21 Allen testified that defendant had children who also had
special needs and learning disabilities and who could not
count well and were behind in school.
22 On cross-examination, Allen testified that defendant
attended a regular Chicago public high school, from which he
was expelled when he was arrested. When her parents lived
together when she was younger, her family was close, and they
went to a restaurant or movie once a month. Allen and her
sisters and brothers did not have a good upbringing, and it
was not "peaceful" due to heroin and cocaine use by
her mother, sisters, and brothers.
23 On redirect, Allen testified that defendant was protective
of their mother and considered it disrespectful to say bad
things about her in public and, in particular, about her drug
24 Mary Porter testified that she was the mother of
defendant's girlfriend and the grandmother of their three
children. Porter first met defendant in 1997, when he was a
teenager. When she first met him, she thought he was
"slow" because "it just look like something,
you know, was wrong with him." She "found out
later, that something had happened to him when he was
born." Since he had been in jail, defendant had called
Porter twice a month, because he felt like his own mother had
deserted him. Porter paid for the calls. Defendant's
children would spend the night with Porter and speak to
defendant when he called. During these calls, she told him to
go to church and pray, and when he called back, he confirmed
that he had gone to church. Porter stated that defendant was
"very nice" and "very respectful" and
that she never had "any trouble out of him."
25 Melanie Porter, the mother of defendant's three
children, testified that she was 32 years old at the time of
the hearing and that she first met defendant when she was 15
years old and they both attended the same high school.
Defendant was in special education, and she was not. They had
one class together, and defendant "couldn't catch on
like the other kids, " and she would try to help him.
When Melanie went to defendant's home, she observed
defendant's mother and her friends in the kitchen smoking
cocaine "rocks." Melanie was aware that defendant
received Social Security disability checks when he was in
26 Melanie testified that, as a result of her first
pregnancy, she and defendant had twin boys and Melanie and
defendant were trying to figure out how to support them. The
payee for defendant's Social Security checks was his
mother, and his mother would give defendant less than half of
the money. Melanie would ask defendant to ask his mother for
more of the money, but he did not want to ask for more.
Before Melanie had children, she was aware that defendant and
his siblings would often lack food due to the mother's
drug problem, and Melanie would let them eat at her house.
Sometimes defendant would call his father, who would come
over and bring a couple of dollars and leave.
27 Melanie testified that defendant always took his
mother's side, he respected his mother, and he never did
anything to hurt her feelings. The same was true of his
father, who also had a drug problem. When defendant had
money, he helped Melanie and the children. In 2015, at the
time that Melanie testified at the hearing, the twin boys
were 15 years old, and their daughter was 14 years old. All
three have learning disabilities, similar to their father.
28 On cross-examination, Melanie testified that, despite the
problems, defendant had a close family, his needs were
addressed, and it was a peaceful existence. On redirect,
Melanie testified that sometimes they lacked electricity and
heat. Their building was family-owned, but defendant's
mother was not able to maintain it. In addition to
defendant's mother, other relatives used drugs in the
home. Melanie testified that their family life was peaceful
because, despite all their problems, they still loved each
other. As for her own employment, Melanie had a seasonal job
at Macy's from August to this past January and she was
also self-employed as a hairdresser.
29 During closing argument, the State reviewed the evidence
presented at trial. The State conceded that defendant had a
low IQ and diminished capacity and lacked "an ideal life
growing up" but argued that it was still not "okay
to kill a child a four-not a child, an infant, your Honor. It
doesn't allow him to kill this four-month and 3-week old
infant, because she's screaming while he's playing
30 During closing argument, the defense observed, among other
things, that the mitigation report submitted to the court
showed that defendant had encephalitis when he was two years
old and presently had an IQ of 64. Defendant asked the trial
court to sentence defendant to the same ...