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People v. Peltz

Court of Appeals of Illinois, Second District

September 12, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
TIMOTHY J. PELTZ, Defendant-Appellant.

          Appeal from the Circuit Court of Du Page County No. 16-CF-1568 Honorable John J. Kinsella, Judge, Presiding.

          PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Spence concurred in the judgment and opinion. Justice McLaren dissented, with opinion.

          OPINION

          BIRKETT, PRESIDING JUSTICE

         ¶ 1 Defendant, Timothy J. Peltz, was charged by indictment with 18 counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)) and 5 counts of aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i)). He entered a nonnegotiated plea of guilty to four counts of predatory criminal sexual assault of a child, and the remaining charges were nol-prossed. The trial court sentenced defendant to 4 consecutive 8½-year prison terms. Defendant unsuccessfully moved to reconsider his sentence and this appeal followed. Defendant argues that, because his attorney failed to file a proper certificate under Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016), the case must be remanded to the trial court for proceedings in compliance with that rule. Defendant alternatively argues that: (1) the trial court improperly considered its own opinion in determining defendant's sentence and (2) the trial court improperly imposed multiple DNA analysis fees and sexually transmitted disease testing fees. We affirm defendant's conviction and sentence, but remand to the trial court, where defendant may challenge the imposition of the multiple fees.

         ¶ 2 I. BACKGROUND

         ¶ 3 As the factual basis for defendant's plea, it was stipulated that, if called as a witness at trial, A.P. would testify that she was born on August 5, 2000, and that defendant was her adoptive father. Defendant took baths with her until she was about 11 years old and would touch her everywhere on her body. On multiple occasions defendant forced A.P. to touch his penis. In addition, he forced her to perform oral sex on him on multiple occasions. Defendant placed his penis and fingers in her vagina and his mouth on her vagina.

         ¶ 4 Robert Holguin, an investigator with the Du Page County State's Attorney's Office, would testify that he interviewed defendant, who told him that he would bathe A.P. and would have her wash his erect penis. That began when A.P. was very young and continued until she was 10 or 11 years old. Around that time, defendant started kissing and licking A.P.'s vagina and had her perform oral sex on him. Defendant engaged in oral sex with A.P. frequently. Defendant told Holguin that he probably rubbed his penis on A.P.'s vagina on one or two occasions, but did not penetrate her. Defendant believed the conduct to be consensual, but he knew that it was wrong and against the law.

         ¶ 5 At defendant's sentencing hearing, Holguin testified that he interviewed A.P. on August 31, 2016, and on September 19, 2016. She was withdrawn and uncomfortable when she spoke with him. A.P. told Holguin that she had been sexually abused from the time she was 3½ years old. She said that the abuse started when defendant would take baths with her and that he would touch her chest, breast, and vagina. Defendant forced her to perform oral sex. Asked how often defendant touched her vagina, A.P. said" 'Oh my gosh, so many times.'" She also told Holguin that it happened every day.

         ¶ 6 Defendant also penetrated A.P.'s vagina with his fingers and his penis when she was 10 to 12 years old. The abuse stopped when A.P. was about 13 years old and she began to physically resist. When A.P. was about 15 years old, she reinitiated her relationship with defendant because she wanted to give him a second chance to be a good father. However, the sexual abuse began all over again. Defendant touched her breast and vagina on the outside of her clothing, talked to her in a sexual manner, pinched her, and offered to help her dress. A.P. resisted by locking herself in her room, locking the bathroom door, and (in Holguin's words) "positioning herself in a way where he wasn't able to touch her." Defendant accused A.P. of teasing him. He gave A.P. a purity ring, which she threw out a window. A.P. told Holguin that she had tried to harm herself because of the abuse. She cut herself and attempted suicide.

         ¶ 7 A video recording of Holguin's interview with defendant was admitted into evidence and played during the sentencing hearing. Defendant told Holguin that there were times, possibly when A.P. was 10 or 11 years old, that he would be taking a bath and A.P. would jump in with him. A.P. would have defendant wash her. He stated that A.P. would wash his penis and he would get an erection. He admitted that he touched A.P.'s vagina and buttocks in the bath. Also, defendant "vaguely remembered" putting his finger in A.P.'s vagina when they were not in the bath. Asked whether he ever rubbed his penis against A.P.'s vagina, defendant responded, "it probably could have happened, I guess." Defendant told Holguin that his physical contact with A.P. was consensual and that he never threatened her. Defendant admitted that what he had done was wrong and illegal.

         ¶ 8 Three text messages from defendant to his wife, Laurie (who was A.P.'s adoptive mother), were admitted into evidence. The messages were sent on August 31, 2016, either before Holguin interviewed defendant or during a break in the interview when defendant was not in Holguin's presence. In one of the text messages, defendant stated that he was sorry for hurting his family. He asked for his wife's forgiveness, but he also indicated that he forgave A.P. In the second text message, he complained, "because of this,, [sic] I will probably NOT be ABLE to get a job to help support our family." The third message stated, "You know, [A.P.] loved to tease me. Like when, I would get up from couch to kitchen, she would run, throw herself at me, kiss me, jump and give me a chest bump, grab me. This is NOT all my doing eather [sic]."

         ¶ 9 In addition, recordings of telephone conversations between defendant and his mother were admitted into evidence. During the conversations, which took place while defendant was in the Du Page County jail following his arrest, defendant indicated that he did not force himself upon A.P., that she "never said no," and that she was promiscuous. Defendant indicated that he was in jail because he "overloved" his daughter. He suggested that if A.P. had come forward earlier, the abuse would have stopped.

         ¶ 10 Both A.P. and Laurie provided victim impact statements. Laurie lamented the loss of "[her] husband, [her] best friend, and [her] daughter's father." She expressed her own feelings of guilt for not realizing that defendant had been abusing A.P., but she added that defendant "hid the abuse and manipulated [A.P.] into believing it was her fault so she would not tell anyone." She described A.P.'s mental health issues stemming from the abuse, including severe anxiety, suicidal ideation, posttraumatic stress disorder, and major depression. Laurie added that she and A.P. had lost any sense of normalcy. They had moved from their home "due to the trauma [A.P.] experienced there." Laurie had become the sole provider and was struggling financially. In addition, defendant's family (including A.P.'s grandmother) was absent from their lives.

         ¶ 11 In her own victim impact statement, A.P. stated that she had been adopted by defendant and Laurie when she was 3½ years old and that defendant abused her sexually, physically, and emotionally. At the age of 13, she understood that what defendant was doing to her was wrong and she began to physically fight him. However, she also began cutting herself and developed eating disorders. Defendant crushed her dreams, including her dream of joining the United States Marine Corps.

         ¶ 12 Defendant submitted numerous letters of support. The letters characterized defendant as hard-working, honest, a good friend, and a person of faith. Speaking in allocution, defendant professed his love for A.P. and Laurie and he apologized to them, adding that he never knew how his behavior would impact their lives.

         ¶ 13 In pronouncing sentence, the trial court commented that defendant's conduct was "wrong by every measure" and that his attempt to rationalize his behavior to claiming that A.P. was a tease was "disgusting and disturbing." The court also remarked that it was "particularly egregious and aggravating on top of everything [that defendant] chose to be [A.P.'s] father." The court referred to "the sickness that brought [defendant] to these acts" and defendant's "depraved view of sexuality."[1] The court also stated that "the only means by which society can speak in an appropriate response to this sort of crime is by placing a number of years that we're going to lock you in a cage."

         ¶ 14 Through counsel, defendant moved to reconsider his sentence, arguing that it was excessive; that the trial court failed to consider all applicable statutory mitigating factors; and that the trial court failed to consider defendant's rehabilitative potential, lack of a criminal history, and remorse for his conduct. The trial court denied the motion and defendant filed a timely notice of appeal.

         ¶ 15 II. ANALYSIS

         ¶ 16 We first consider defendant's argument that his attorney's Rule 604(d) certificate was defective. When the trial court ruled on defendant's motion to reconsider, Rule 604(d) (eff. Mar. 8, 2016) provided, in pertinent part, as follows:

"No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment. *** If the defendant is indigent, the trial court shall order a copy of the transcript *** be furnished the defendant without cost. The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by phone, mail, electronic means or in person to ascertain defendant's contentions of error in the sentence and the entry of the plea of guilty, has examined the trial court file and both the report of proceedings of the plea of guilty and the report of proceedings in the sentencing hearing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. The motion shall be heard promptly, and if allowed, the trial court shall modify the sentence or vacate the judgment and permit the defendant to withdraw the plea of guilty and plead anew. If the motion is denied, a notice of appeal from the judgment and sentence shall be filed within the time allowed in Rule 606, measured from the date of entry of the order denying the motion. Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.
The certificate of counsel shall be in the following form:[2]

         STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE ___ JUDICIAL CIRCUIT COUNTY OF ___ (Or, IN THE CIRCUIT COURT OF COOK COUNTY)

         PEOPLE OF THE STATE OF ILLINOIS, Plaintiff

         vs.

         ___ Defendant

         CASE NO. ___

         CERTIFICATE OF COUNSEL PURSUANT TO ILLINOIS SUPREME COURT RULE 604(d)

         I, ___, attorney for Defendant, certify pursuant to Supreme ...


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