text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles J. BROWN, Defendant-Appellant.
    NO. 4-16-0288
    Appellate Court of Illinois, Fourth District.
    Filed September 25, 2018 Rehearing denied October 29, 2018
    James E. Chadd, Patricia Mysza, and Bradley Jarka, of State Appellate Defender's Office, of Chicago, for appellant.
    Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and James Ryan Williams, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Charles J. Brown, was convicted of two counts of home invasion ( 720 ILCS 5/12-11(a)(3) (West 2010) ) and sentenced to two concurrent 35-year prison terms. On direct appeal, this court vacated one of defendant's convictions and sentences pursuant to the one-act, one-crime doctrine but otherwise affirmed the trial court's judgment. People v. Brown , 2014 IL App (4th) 120692-U, 2014 WL 895499. In June 2014, defendant filed a postconviction petition, which advanced to the second stage of postconviction proceedings. At the second stage, the State filed a motion to dismiss. The trial court partially denied that motion and allowed the matter to advance to a third-stage evidentiary hearing on certain issues. Ultimately, the matter was transferred to another judge, who sua sponte revisited the State's motion to dismiss and then dismissed defendant's postconviction petition in its entirety. Defendant appeals, arguing the successor judge erred in sua sponte dismissing his petition. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On September 26, 2011, two armed and masked intruders entered the home of Lillie Seals, located at 1106 West Eureka Street in Champaign, Illinois, while she and her three children were present, and began making various demands. Seals's boyfriend, Dejwan Green, subsequently entered the residence and shot at the two intruders, who then fled the scene. Shortly following the incident, police officers learned that defendant and another individual, Mario Dorsey, had separately been taken to a local hospital for gunshot wounds. While hospitalized, defendant was twice interviewed by the police. The record reflects he reported that he had been shot following a dice game at the Eureka Street residence by an individual who was upset about losing money. According to Defendant, he jumped out a bedroom window of the residence, crawled to the street, and called his son to pick him up and take him to the hospital. On October 7, 2011, the State charged defendant with two counts of home invasion while armed with a firearm ( 720 ILCS 5/12-11(a)(3) (West 2010) ).

¶ 4 On January 24, 2012, defendant filed a motion to suppress statements he made to the police while hospitalized on October 3 and 5, 2011. He argued his statements were (1) made during custodial police interrogations and without the benefit of Miranda warnings ( Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ) and (2) involuntary because he was hospitalized, recovering from surgery, and under the influence of medication.

¶ 5 On March 15, 2012, a hearing on defendant's motion was conducted before Judge Harry E. Clem. The State presented the testimony of Donald Shepard, a detective for the Champaign police department. Shepard stated he investigated the reported home invasion at Seals's residence and, on October 3 and 5, 2011, spoke with defendant at the hospital. According to Shepard, defendant provided similar statements on both dates but only defendant's second statement was recorded. He asserted he spoke with medical personnel prior to conversing with defendant on both dates but was never advised that defendant was not in a condition to be interviewed.

¶ 6 On October 3, 2011, Shepard spoke with defendant at approximately 2:30 p.m. for 30 to 45 minutes. He testified defendant was in his hospital bed and recovering from his injuries. No charges had been filed against him at that time, and Shepard denied that the hospital had been directed to hold defendant for the police department. Shepard testified defendant was not handcuffed or restrained. He also did not tell defendant that he was under arrest or that he was not free to leave. When speaking with defendant, Shepard denied noticing anything unusual. He stated that, although defendant "was obviously recovering and in some pain," he seemed "very aware of what was going on around him," spoke coherently, recognized Shepard from previous contacts, provided information that matched information his girlfriend had previously reported to Shepard, and telephoned his girlfriend so that she could get in contact with his son. According to Shepard, defendant did not appear drowsy or have slurred speech. Shepard testified he did not notice anything that caused him to believe defendant was under the effects of drugs or medication. Additionally, defendant never indicated that he did not want to talk to Shepard.

¶ 7 Shepard testified he returned to the hospital to speak with defendant on October 5, 2011, at around 4 p.m. for approximately 30 minutes. Another detective accompanied him to defendant's hospital room. Shepard denied ever telling defendant that he was under arrest or that he was not free to leave. Shepard also testified defendant was not handcuffed or restrained. He did not read defendant his Miranda warnings, stating that, in his mind, defendant was not in custody at that time. Shepard testified he obtained permission from defendant to record his statement. Again, he asserted that defendant's ability to communicate did not appear to be affected by medication or drugs. Shepard denied that defendant appeared sleepy or that he fell asleep during their conversation. According to Shepard, defendant never indicated that he did not want to talk. On October 6, 2011, defendant was released from the hospital and taken into police custody.

¶ 8 On cross-examination, Shepard testified that, following his October 5 interview with defendant, he informed desk personnel at the hospital to notify him of defendant's release because Shepard was planning to arrest him. He did not inform defendant that he was going to be arrested until October 6, 2011. Shepard stated he was aware that defendant had suffered gunshot wounds, undergone surgery, and that he had been intubated on October 3. Shepard acknowledged that he did not know what medications defendant was on at the time of their interviews. He also acknowledged that he did not ask medical personnel what medications defendant was taking or the effect that such medication would have on defendant's cognitive abilities. However, Shepard asserted he did ask if defendant was "coherent and able to be interviewed, in a condition where [Shepard] could talk to him." According to Shepard, medical personnel informed him that "yes, [defendant was] coherent" and that defendant knew where he was and what was going on. Additionally, Shepard testified that during their interview on October 5, defendant got out of bed and "walked across the room to the bathroom."

¶ 9 Defendant testified he was admitted to the hospital on September 26, 2011, and was suffering from gunshot wounds. He underwent surgery and was given medication to help him sleep and for pain. According to defendant, his pain medications included morphine, fentanyl, and OxyContin. Defendant testified his medications were administered both orally and intravenously, and he was on pain medication during his entire hospital stay. He stated he was hooked up to a "medication machine" and could push a button every 10 minutes to receive pain medication. Defendant asserted he did not recall everything that happened during his first few days in the hospital and had no recollection of his October 3 interaction with Shepard. He did recall Shepard's October 5 visit and stated he was still in pain and hooked up to machines. Defendant asserted he felt sleepy and told Shepard he did not want to speak to him. He testified he was "in and out" of consciousness while Shepard questioned him. Further, defendant denied that he exited his hospital bed on October 5 as asserted by Shepard, stating he "couldn't walk" and "couldn't get out of the bed."

¶ 10 On cross-examination, defendant testified that he did recall portions of Shepard's October 3 visit. Specifically, he remembered that Shepard told him they were "going to talk about old times" and that his son telephoned while Shepard was present. Defendant testified he did not recall making the statements on October 3 that were attributed to him by Shepard.

¶ 11 Following the parties' arguments, Judge Clem denied defendant's motion to suppress. Initially, he found defendant's statements were not made during the course of a custodial interrogation. Further, he found Shepard's testimony more credible than defendant's regarding whether defendant was coherent and responsive when Shepard interviewed him. In setting forth his decision, Judge Clem noted as follows: "[T]here is no medical testimony presented here as to the [effects] of any of the medication. The defendant understands it to have been pain medication, but many people take pain medication for a variety of different reasons and the [effects] of it are something that is subject to testimony by somebody who is, in fact, versed in such matters which we did not hear today."

¶ 12 Prior to trial, defendant also raised pro se claims that his court-appointed attorney was providing ineffective assistance. He requested a change in counsel, alleging, in part, that his counsel failed to "file certain case laws" or "read certain things" to the trial court in connection with his motion to suppress. Following a hearing, the court denied defendant's motion.

¶ 13 In May 2012, defendant's jury trial was conducted with Judge Clem presiding. The State's evidence showed that, on September 26, 2011, Seals resided in a house located at 1106 West Eureka Street in Champaign. That evening, she was home with her three children-two sons, ages 15 and 8, and a daughter, age 1-when two masked and armed intruders entered the home and began making various demands. Seals testified and described the intruders as black men, wearing hoodies, jeans, and ski masks. She stated the intruders pushed her and her sons into a bedroom and onto the floor. Upon request, Seals was permitted to retrieve her daughter from another room. She testified she was accompanied by one of the intruders at gunpoint. She then heard multiple gunshots and hid in a closet with her daughter. Seals testified she heard a window break and, once it became quiet, she returned to the bedroom her sons had been in and noticed that the window was open. She stated a window in her own bedroom had been broken.

¶ 14 Seals's 15-year-old son, Dominic, provided testimony that was substantially similar to that provided by Seals. He stated that, after the shooting started, he "hopped out the [bedroom] window" and ran to a neighbor's house to call police while his little brother hid in the closet. Dominic testified he made two 9-1-1 calls. Recordings of the calls were played for the jury.

¶ 15 Dejwan Green testified he was in a relationship with Seals and spent time at her home. On the evening of September 26, 2011, he went to Seals's residence and noticed the dog "barking like crazy." He also observed that the back door was open and heard screaming and pleading. Green testified he retrieved his gun from the garage and "eased" his way into the house. Inside, he heard unfamiliar male voices and observed two men in dark colored clothing holding guns against Seals and the children. Green stated he fired shots at the men, and one of the men returned fire. Green retreated to the kitchen to "regroup" and heard glass breaking. He stated he observed the intruders "jumping out the window." Following the shooting, Green went to a friend's house and sold his gun. He acknowledged that he was a convicted felon and not allowed to possess a firearm.

¶ 16 Tina Gordon testified for the State that, in September 2011, she and defendant were dating. On September 26, 2011, she was at a birthday party with defendant's son, Devin Lindsey, when Lindsey received a telephone call from defendant. In response to that call, Gordon and Lindsey went to the 1100 block of West Eureka Street in Champaign and observed defendant hurt and "laying by some bushes" in the front yard of a residence located at 1108 West Eureka Street, which evidence showed was next door to Seals's home. Gordon stated she and Lindsey took defendant to the emergency room for treatment, reporting that he was a gunshot victim.

¶ 17 Shepard testified he investigated the alleged home invasion at 1106 West Eureka Street on September 26, 2011. That evening, he responded to Seals's residence and then Carle Hospital, stating he learned that two people with gunshot wounds had been taken there. Shepard identified those two individuals as defendant and Mario Dorsey. When he arrived at the hospital, defendant was in surgery. Shepard testified he subsequently interviewed defendant on two occasions, one of which was an interview on October 5, 2011, that was recorded. Both the recording and a transcript of the recording were admitted into evidence over defendant's objection. The recording was played at trial and the jury was given copies of the transcript.

¶ 18 Shepard further testified that he returned to Seals's residence on September 29, 2011, to look for evidence in both her yard and in neighboring yards. He stated he walked around the residence located at 1108 West Eureka Street, Seals's next-door neighbor. In small bushes at the front of that residence, Shepard found a stocking hat or mask. The State's evidence showed that swabs of the mouth area of the mask were taken at the Illinois State Police Forensic Science Laboratory in Springfield, Illinois. Dana Pitchford, a forensic scientist specializing in forensic biology and deoxyribonucleic acid (DNA) analysis, extracted DNA from the swabs. She found a mixture of DNA profiles from a swabbing of the inside of the mouth area of the mask and stated she "could pull out a major contributor." Pitchford compared the DNA profiles from the mask with defendant's DNA profile and determined "the major contributor profile [was] consistent with the DNA profile from [defendant]." She further testified as follows: "The probability of th[at] [DNA] profile appearing in the population is approximately one in 4.9 sextillion African Americans, one in 650 sextillion Caucasians[,] or one in 490 sextillion Southwest Hispanic individuals."

¶ 19 The State additionally presented testimony from police officers regarding bullet holes, shell casings, and projectiles found in Seals's residence. Defendant presented no witnesses and chose not to testify. At the conclusion of the trial, the jury found defendant guilty of both counts of home invasion. On June 25, 2012, the trial court sentenced defendant to two concurrent 35-year prison terms.

¶ 20 Defendant filed a direct appeal, arguing (1) his two convictions for home invasion violated the one-act, one-crime doctrine because they were both based on a single entry into the dwelling of another and (2) the trial court erred by failing to revisit his pretrial ineffective-assistance claims after his trial. On March 6, 2014, this court issued a decision agreeing with defendant's first contention and vacating one of his two convictions and 35-year prison sentences. Brown , 2014 IL App (4th) 120692-U, ¶ 30. We otherwise affirmed the trial court's judgment but remanded for the issuance of an amended sentencing judgment. Id.

¶ 21 On June 9, 2014, defendant filed a pro se postconviction petition. The trial court, Judge Clem presiding, permitted defendant's petition to proceed to the second stage of postconviction proceedings and appointed counsel to represent defendant. An amended postconviction petition was filed with the aid of appointed counsel, which the State moved to dismiss. However, before the amended petition could be addressed, defendant moved to have his appointed counsel discharged and alternate counsel appointed. Ultimately, Judge Clem granted that motion and alternative counsel was appointed.

¶ 22 On July 29, 2015, defendant, with the aid of his newly appointed postconviction counsel, filed the amended petition for postconviction relief that is at issue on appeal. Defendant argued (1) the trial court erred in denying his motion to suppress because he had been subjected to a custodial interrogation without the benefit of Miranda warnings, (2) his trial counsel provided ineffective assistance, (3) his appellate counsel provided ineffective assistance of counsel, and (4) the trial court improperly imposed a more severe sentence on remand after one of his convictions and sentences had been vacated. With respect to his claim of ineffective assistance of trial counsel, defendant first argued, in part, that his counsel's performance was deficient during the suppression hearing for failing to present medical testimony regarding the effect of pain medication he was taking during his hospitalization. He alleged that his counsel's asserted basis for not presenting such testimony was that defendant's medical records described him as "alert and oriented." Defendant maintained, however, that it was error for his counsel to rely on a layman's understanding of such terms because "[a] notation of alert and oriented in medical terminology may be significantly different from what a layperson would understand it to mean."

¶ 23 Second, defendant argued his trial counsel was ineffective for failing to confront Shepard with a contradiction between his testimony at the suppression hearing and defendant's medical records. In particular, he asserted that Shepard testified the "decision to arrest" defendant was not made until after his second interaction with defendant on October 5, 2011, while the medical records show Shepard instructed hospital personnel on October 3, 2011, that defendant would be arrested upon his release. Defendant maintained the discrepancy was relevant to the issue of Shepard's credibility and "the totality of the circumstances alleged in creating a custodial interrogation." Finally, he argued he suffered prejudice as a result of his counsel's ineffective assistance.

¶ 24 Defendant attached various documents to his amended postconviction petition, including medical records from his September 26 to October 6, 2011, hospitalization and the affidavits of his trial counsel, Gordon, and himself. Defendant's medical records show he was given pain medications while hospitalized, including fentanyl, oxycodone, and Robaxin, but that he was consistently described as "alert and oriented." On October 1, 2011, defendant was noted as being on a "continuous fentanyl PCA" that allowed him to press a button for a dose of the medication every 10 minutes. That date, he was described as "alert and oriented X4" and having clear speech and the ability to follow commands. Defendant also verbalized an "understanding [of his] plan of care and [the] orders in place."

¶ 25 On October 2, 2011, defendant was described as alert and oriented and "following commands." Defendant reported pain and a continuous dose fentanyl PCA remained available to him. Records reflect defendant was "observed pushing button for pain control." On October 3, 2011, defendant was noted as "alert and oriented x4." Records reflect defendant "ambulated in unit today with [nonslip] socks on." Defendant reported pain with activity but denied "pain at rest." His PCA "settings" were decreased and "[o]ral pain [medication was] added." Additionally, a note was made that Shepard arrived at the hospital and talked with defendant and that "[patient] is to go to [j]ail upon discharge." Additional notes reflect that defendant's girlfriend was "banned" from seeing defendant "due to inappropriate behavior" and that defendant inquired with medical staff about a crime victim's application form.

¶ 26 On October 4, 2011, defendant was described as "alert and oriented x 3." For pain, defendant was given oxycodone, which he could take every four hours. It was also noted that defendant had a "high potency fentanyl PCA in place as well." Records state that "PCA use" was explained to defendant and he verbalized his understanding. Defendant also made a request that a letter verifying his hospitalization be faxed to the circuit clerk's office because he had a court appearance the following day. On October 5, 2011, defendant was described as "oriented x4." He reported pain and was given oral pain medications of oxycodone and Robaxin. Defendant was also noted as being "[u]p to bathroom independently." On October 6, 2011, defendant was, again, described as "oriented x4."

¶ 27 As stated, attachments to defendant's amended postconviction petition also included the affidavits of his trial counsel, Anthony Ortega, Gordon, and himself. The record shows Ortega averred that he did not call any hospital personnel to testify during defendant's suppression hearing "because the medical records consistently indicated that [defendant] was oriented in all spheres" and he "did not think that calling hospital staff would be helpful." Gordon asserted that she was defendant's girlfriend in 2011 and, although she was not present during Shepard's interviews with defendant, she visited defendant in the hospital on both October 3 and 5, 2011. According to Gordon, defendant was "heavily medicated on both days," was groggy and "very sleepy," and could not carry on full conversations. Defendant averred that his testimony at the suppression hearing was true. He asserted he was in pain and on medication when interviewed by Shepard. Defendant maintained that he did not agree to speak with Shepard and did "not recall much." He also asserted he had been "sleepy and incoherent," and he did not feel free to leave the room. According to defendant, he "could not have gotten out of bed."

¶ 28 On August 19, 2015, the State filed a motion to dismiss defendant's amended petition, arguing it was "substantially insufficient at law." With respect to Ortega's alleged ineffectiveness at the suppression hearing, the State argued, in part, that the medical records appended to defendant's motion actually bolstered Shepard's testimony, "showing [d]efendant was oriented and able to manage his affairs at the time of the interviews." Further, it noted that defendant had failed to offer any affidavits or other documentation from a medical expert to show how the medication he was on affected him or to support his contention that the term " [']oriented['] should be taken at anything other than face value."

¶ 29 On November 12, 2015, a hearing was conducted before Judge Clem on defendant's amended postconviction petition and the State's motion to dismiss. Following the parties' arguments, Judge Clem partially granted and partially denied the State's motion. In particular, Judge Clem denied the motion with respect to defendant's claim of Ortega's ineffectiveness at the suppression hearing. On December 3, 2015, the State filed an answer to defendant's amended postconviction petition.

¶ 30 Thereafter, Judge Thomas J. Difanis began presiding over the case. On March 21, 2016, Judge Difanis conducted a hearing on the matter and informed the parties that he intended to "revisit the motion to dismiss." On April 13, 2016, the parties appeared before Judge Difanis and presented arguments relative to defendant's amended postconviction petition and the State's motion to dismiss. Following the parties' arguments Judge Difanis dismissed defendant's petition, stating as follows:

"Well, it's this court's opinion, based upon the [postconviction] petition that was filed, despite the fact that it's taken us down this road, that petition is insufficient. It's patently without merit. The issues have been addressed by the Appellate court. It's a res judicata , and I will order that the [postconviction] petition is dismissed."

¶ 31 This appeal followed.

¶ 32 II. ANALYSIS

¶ 33 On appeal, defendant challenges the trial court's second-stage dismissal of his amended postconviction petition. Specifically, he argues Judge Difanis lacked authority to sua sponte revisit the State's motion to dismiss where the State elected to answer the defendant's petition rather than seek reconsideration of Judge Clem's partial denial of its motion to dismiss. Alternatively, defendant contends that Judge Difanis exceeded any authority he had to revisit the State's motion because (1) Judge Clem's previous ruling was not clearly erroneous and did not result in a manifest injustice and (2) Judge Difanis did not give careful consideration to Judge Clem's previous decision. Finally, defendant contends Judge Difanis erred in dismissing his amended postconviction petition at the second stage because his claim that his trial counsel provided ineffective assistance during the suppression hearing made a substantial showing of a constitutional violation.

¶ 34 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 to 122-7 (West 2012) ) "provides a three-stage process for the adjudication of postconviction petitions." People v. Harris , 224 Ill. 2d 115, 125, 308 Ill.Dec. 757, 862 N.E.2d 960, 967 (2007). "At the first stage of postconviction proceedings, the circuit court reviews the petition and may summarily dismiss it if the court determines it is 'frivolous or is patently without merit.' " People v. Perkins , 229 Ill. 2d 34, 42, 321 Ill.Dec. 676, 890 N.E.2d 398, 402 (2007) (quoting 725 ILCS 5/122-2.1(a)(2) (West 2002) ). "A postconviction petition is frivolous or patently without merit when its allegations, taken as true and liberally construed, fail to present the gist of a constitutional claim." Harris , 224 Ill. 2d at 126, 308 Ill.Dec. 757, 862 N.E.2d 960.

¶ 35 Pursuant to section 122-2 of the Act ( 725 ILCS 5/122-2 (West 2012) ), a postconviction petition "shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." "The failure to comply with section 122-2 is fatal and by itself justifies the petition's summary dismissal." Harris , 224 Ill. 2d at 126, 308 Ill.Dec. 757, 862 N.E.2d 960.

¶ 36 When a postconviction petition is not dismissed at the first stage, it advances to the second stage where counsel may be appointed and the State may file a responsive pleading. Id. "If at the second stage a substantial showing of a constitutional violation is established, the petition proceeds to the third stage for an evidentiary hearing." Id.

"The second stage of postconviction review tests the legal sufficiency of the petition. Unless the petitioner's allegations are affirmatively refuted by the record, they are taken as true, and the question is whether those allegations establish or 'show' a constitutional violation. In other words, the 'substantial showing' of a constitutional violation that must be made at the second stage [citation] is a measure of the legal sufficiency of the petition's well-pled allegations of a constitutional violation, which if proven at an evidentiary hearing, would entitle petitioner to relief." (Emphasis omitted.) People v. Domagala , 2013 IL 113688, ¶ 35, 370 Ill.Dec. 1, 987 N.E.2d 767.

The second-stage dismissal of a postconviction petition is subject to de novo review. People v. Pendleton , 223 Ill. 2d 458, 473, 308 Ill.Dec. 434, 861 N.E.2d 999, 1008 (2006).

¶ 37 As stated, defendant first argues that Judge Difanis lacked authority to dismiss his amended postconviction petition because the State filed an answer to the petition rather than a motion to reconsider the denial of its motion to dismiss. We disagree.

¶ 38 "A court has the inherent authority to reconsider and correct its rulings, and this power extends to interlocutory rulings as well as to final judgments." Stevens v. Village of Oak Brook , 2013 IL App (2d) 120456, ¶ 37, 371 Ill.Dec. 614, 990 N.E.2d 802 (citing People v. Mink , 141 Ill. 2d 163, 171, 152 Ill.Dec. 293, 565 N.E.2d 975 (1990) ). "[I]t is of no consequence that the original order was entered by another circuit judge." People v. DeJesus , 127 Ill. 2d 486, 494, 130 Ill.Dec. 471, 537 N.E.2d 800, 804 (1989). Additionally, "a court is within its discretion to change its ruling and may even sua sponte reconsider a prior ruling." National Union Fire Insurance Co. of Pittsburgh, PA v. DiMucci , 2015 IL App (1st) 122725, ¶ 57, 393 Ill.Dec. 495, 34 N.E.3d 1023.

¶ 39 Defendant acknowledges a circuit court's authority to reconsider past rulings but maintains such authority is "wholly irrelevant" to his argument and circumstances. He contends that "[b]y filing an answer, the State foreclosed any reconsideration of the legal sufficiency of [his petition]." To support his contention, defendant primarily relies on the Third District's decision in People v. Thompson , 2016 IL App (3d) 140586, 410 Ill.Dec. 528, 70 N.E.3d 655. There, the trial court advanced a defendant's postconviction petition to the second stage of proceedings and appointed counsel, who filed an amended petition. Id. ¶ 20. The court directed the State to file a responsive pleading and the State elected to file an answer rather than a motion to dismiss. Id. The trial court ultimately dismissed the defendant's petition without conducting a third-stage evidentiary hearing, which the Third District held was reversible error. Id.

¶ 40 We find Thompson is distinguishable. Notably, unlike Thompson , the State in this case did file a motion to dismiss defendant's postconviction petition, arguing that he failed to make a substantial showing of a constitutional violation. The trial court ruled on that motion, partially granting and partially denying it, and the matter was scheduled for an evidentiary hearing. Before the hearing could be held, the court, on its own motion, elected to reconsider its previous ruling. Contrary to defendant's assertion, we find the trial court's inherent authority to reconsider its prior rulings is directly applicable to this case. Because the State moved to dismiss the petition and that motion was ruled upon, the court could reconsider that ruling and correct it. As indicated, that authority was inherent and not derived from or foreclosed by any State action or inaction. Thompson is inapplicable as it does not address the issue presented by the facts of this case.

¶ 41 Defendant alternatively argues that, even if Judge Difanis had authority to reconsider Judge Clem's original ruling on the State's motion to dismiss, Judge Difanis acted outside of his authority. He maintains that it is "generally improper for a *** judge to review a prior decision in the same case that has already been made by a predecessor *** judge" and there is only "a limited exception" for "when the predecessor judge's ruling was clearly erroneous and the successor judge carefully considered the prior decision before revisiting it." Defendant contends Judge Clem's ruling in the instant case was not clearly erroneous and that Judge Difanis failed to give it careful consideration. We disagree that reversible error occurred.

¶ 42 In Balciunas v. Duff , 94 Ill. 2d 176, 185, 68 Ill.Dec. 508, 446 N.E.2d 242, 246 (1983), the supreme court held that "an interlocutory order may be reviewed, modified[,] or vacated at any time before final judgment, and it is of no consequence that the original order was entered by another circuit judge." See also People v. Johnson , 2017 IL 120310, ¶ 33, 413 Ill.Dec. 10, 77 N.E.3d 615 (finding a predecessor judge's ruling regarding the timeliness of a defendant's postconviction petition was an interlocutory order that a successor judge had the power to review and reconsider). Further, the court favorably cited its previous decision in Towns v. Yellow Cab Co. , 73 Ill. 2d 113, 121, 22 Ill.Dec. 519, 382 N.E.2d 1217, 1220 (1978), wherein it held as follows:

" 'While prior rulings should be vacated or amended only after careful consideration, especially if there is evidence of "judge shopping" on behalf of one who has obtained an adverse ruling, a court is not bound by an order of a previous judge [citation] and has the power to correct orders which it considers to be erroneous.' " Balciunas , 94 Ill. 2d at 186, 68 Ill.Dec. 508, 446 N.E.2d 242 (quoting Towns , 73 Ill. 2d at 121, 22 Ill.Dec. 519, 382 N.E.2d 1217 ).

¶ 43 The supreme court went on to hold that "considerable restraint in reversing or modifying previous rulings" should be exercised in the context of prior discovery rulings, which involve the exercise of discretion by the trial court. Id. at 187-88, 68 Ill.Dec. 508, 446 N.E.2d 242. It elaborated as follows:

"Accordingly, once the court has exercised its discretion, that ruling should not be reversed by another member of the court simply because there is disagreement on the manner in which that discretion was exercised. Rather, a successor judge, before whom the case has been assigned, should revise or modify previous discovery rulings only if there is a change of circumstances or additional facts which warrant such action. Such a rule minimizes the potential for 'judge shopping' and preserves the orderly and efficient functioning of the judicial system. We note, too, that our holding is in accord with the general rule in the Federal courts, which recognizes the power of a Federal district judge to revise or modify a ruling by another judge in the same case, but requires a compelling reason for such action." Id. at 188, 68 Ill.Dec. 508, 446 N.E.2d 242.

¶ 44 From this authority, it is clear that a successor judge has the power to correct orders which he or she considers to be erroneous, but the successor judge should exercise careful consideration, particularly when the case involves evidence of judge shopping. Additionally, more stringent rules apply in the context of rulings that involve the exercise of discretion.

¶ 45 Here, the record contains no evidence or allegations of judge shopping and Judge Clem's prior ruling was not one that involved the exercise of discretion. People v. Coleman , 183 Ill. 2d 366, 387, 233 Ill.Dec. 789, 701 N.E.2d 1063, 1074 (1998) ("The decision to dismiss a [postconviction] petition does not require a true exercise of discretion by the circuit court."). Further, although defendant maintains Judge Difanis failed to give Judge Clem's prior ruling careful consideration, we find that the record amply supports his ultimate determination that Judge Clem's partial denial of the State's motion to dismiss was erroneous. Additionally, we may affirm Judge Difanis's second-stage dismissal of defendant's petition on any basis supported by the record. People v. Davis , 382 Ill. App. 3d 701, 706, 321 Ill.Dec. 357, 889 N.E.2d 622, 628 (2008) (stating the trial court's dismissal of a postconviction petition may be affirmed "on any basis shown by the record, even if that basis was rejected by the trial court"). On appeal, defendant argues only that Judge Clem's partial denial of the State's motion to dismiss was correct because his petition made a substantial showing that his trial counsel was ineffective for failing to introduce medical records and medical testimony at the hearing on his motion to suppress. For the reasons that follow, we disagree and find defendant's petition was insufficient to make such a showing.

¶ 46 Ineffective-assistance-of-counsel claims are governed by the standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Domagala , 2013 IL 113688, ¶ 36, 370 Ill.Dec. 1, 987 N.E.2d 767. To prevail on such a claim, "a defendant must show that counsel's performance was objectively unreasonable under prevailing professional norms and that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Id. (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). "[A] 'reasonable probability' is defined as a showing sufficient to undermine confidence in the outcome, rendering the result unreliable or fundamentally unfair." People v. Patterson , 2014 IL 115102, ¶ 81, 388 Ill.Dec. 834, 25 N.E.3d 526. "When reviewing a ruling on a motion to suppress, overcoming the prejudice prong requires the defendant to show a reasonable probability both that: (1) the suppression motion would have been granted; and (2) the trial outcome would have been different if the evidence had been suppressed." (Emphases in original.) Id. In this instance, defendant's petition did not make a showing of either deficient performance or prejudice.

¶ 47 First, decisions as to which witnesses to call or what evidence to present are viewed as matters of trial strategy and "generally immune from claims of ineffective assistance of counsel." People v. West , 187 Ill. 2d 418, 432, 241 Ill.Dec. 535, 719 N.E.2d 664, 673 (1999). "The only exception to this [general] rule is when counsel's chosen trial strategy is so unsound that counsel entirely fails to conduct any meaningful adversarial testing." (Internal quotation marks omitted.) Id. at 432-33, 241 Ill.Dec. 535, 719 N.E.2d 664.

¶ 48 Here, Ortega's affidavit, attached to defendant's postconviction petition, establishes that he chose not to present medical records or testimony "because the medical records consistently indicated that [defendant] was oriented in all spheres" and he "did not think that calling hospital staff would be helpful." The medical records attached to defendant's petition show that, although defendant was on pain medication, he was continuously described as being alert and/or oriented. They also reflect that defendant effectively communicated with hospital staff regarding both medical and legal matters. Ultimately, the medical records support Sheppard's testimony at the suppression hearing and the record does not reflect that Ortega's strategy was unsound.

¶ 49 Defendant argues that Ortega should not have relied on his laymen's interpretation of the medical records. Rather, he should have investigated further by interviewing medical personnel and presenting their testimony at the suppression hearing. However, we note defendant neglected to attach the affidavits of any medical personnel or other evidence to his petition that would support an alternate interpretation of those records. Again, the Act requires that a petition "shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2012) ; see also People v. Guest , 166 Ill. 2d 381, 402, 211 Ill.Dec. 490, 655 N.E.2d 873, 883 (1995) ("To support a claim of failure to investigate and call witnesses, a defendant must introduce affidavits from those individuals who would have testified. Without affidavits, this court cannot determine whether these witnesses could have provided any information or testimony favorable to defendant."). As a result, we have only defendant's bare, unsupported assertion that the medication he was on adversely affected his ability to communicate and make decisions. The mere fact that defendant was medicated does not warrant a finding that his statements to Shepard were unknowing or involuntary, particularly where the medical records indicate otherwise.

¶ 50 Defendant also argues that Ortega should have introduced his medical records to attack Shepard's credibility. He notes that the records reflect Shepard notified the hospital of defendant's impending arrest on October 3, 2011, rather than on October 5, 2011, as Shepard testified at the suppression hearing. However, again, we can find no deficient performance. While defendant accurately points out a discrepancy between Shepard's testimony and the medical records, the medical records otherwise support Shepard's testimony that defendant was coherent and had the ability to effectively and appropriately communicate. Additionally, we note that to the extent defendant argues such evidence would support the Miranda claim he presented at the suppression hearing, we must disagree because there is no allegation that defendant was made aware of Shepard's intent to arrest him. See People v. Braggs , 209 Ill. 2d 492, 506-07, 284 Ill.Dec. 682, 810 N.E.2d 472, 482 (2003) (stating "it is generally irrelevant that the interrogating officer subjectively viewed the individual under questioning as a suspect" unless the officer's beliefs are "conveyed by word or deed to the individual being questioned").

¶ 51 Second, defendant's allegations also fail to show prejudice. Initially, we find no reasonable probability that the result of the suppression hearing would have been different if defendant's medical records had been introduced. Those records show defendant was given pain medication while hospitalized but fail to indicate that the medication adversely impacted his ability to communicate or make decisions. Rather, as discussed, defendant's medical records support Shepard's testimony that defendant was coherent and aware of what was going on around him. Defendant's claim that medical testimony may have benefited his case was not properly pled, as he failed to attach any supporting affidavits or evidence to support such a claim to his petition. Additionally, we note the medical records also contradict defendant's testimony regarding his physical condition. At the suppression hearing, Shepard testified that defendant got out of bed and walked to the bathroom during their second interaction on October 5. Although defendant testified that was not true and he had been unable to get out of bed, defendant's medical records reflect he was, in fact, independently using the bathroom on that date. Thus, the medical evidence that was presented with defendant's petition was more harmful than helpful to his claims at the suppression hearing.

¶ 52 We also agree with the State's contention that, even if the motion to suppress had been granted, there is no reasonable probability that the outcome of defendant's trial would have been different. The State's evidence showed that two armed and masked intruders entered Seals's home and made demands. Green shot at the intruders who fled. Around the time of the home invasion, defendant's girlfriend and son found him lying in the yard of Seals's next-door neighbor near some bushes. Defendant had gunshot wounds and was taken to the hospital. When police searched the next-door neighbor's yard, they found a mask in the neighbor's bushes that contained a DNA profile that was consistent with defendant's DNA profile. Thus, the State presented substantial circumstantial evidence of defendant's guilt. Similar to defendant's statement to Shepard, which placed defendant at Seals's Eureka Street residence on the night of the offense, the State's evidence placed defendant in the next-door neighbor's yard, injured with gunshot wounds. Additionally, the State presented DNA evidence linking defendant to the offense. Accordingly, we find Judge Difanis correctly dismissed defendant's amended postconviction petition.

¶ 53 III. CONCLUSION

¶ 54 For the reasons stated, we affirm the trial court's judgment. As part of our judgment, we award the State $75 as costs of this appeal. 55 ILCS 5/4-2002(a) (West 2016).

¶ 55 Affirmed.

Justices Knecht and Cavanagh concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter L. CUNNINGHAM, Defendant-Appellant.
    NO. 4-15-0395
    Appellate Court of Illinois, Fourth District.
    Filed October 4, 2018 Rehearing denied October 25, 2018
    Michael J. Pelletier, Patricia Mysza, and Kieran M. Wiberg, of State Appellate Defender's Office, of Chicago, for appellant.
    John C. Milhiser, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Kathy Shepard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 In May 2014, defendant, Walter L. Cunningham, pleaded guilty to one count of burglary, a Class 2 felony ( 720 ILCS 5/19-1(a) (West 2012) ). In August 2014, the trial court sentenced defendant to 20 years' imprisonment as a Class X offender, based on his prior convictions ( 730 ILCS 5/5-4.5-25(a), 5-4.5-95(b) (West 2012) ). Defendant appeals, arguing he was denied a fair sentencing hearing and received an excessive sentence. We disagree and affirm.

¶ 2 I. BACKGROUND

¶ 3 In May 2013, the State charged defendant by information with residential burglary, a Class 1 felony ( 720 ILCS 5/19-3(a) (West 2012) ). It alleged that on May 16, 2013, defendant, knowingly and without legal authority, entered the dwelling place of another with the intent to commit a theft. The State asserted defendant entered a garage, a portion of which functioned as a residence.

¶ 4 In May 2014, defendant pleaded guilty to an amended charge of burglary, a Class 2 felony ( 720 ILCS 5/19-1(a) (West 2012) ). The trial court explained to defendant that he faced a possible sentence of between 6 to 30 years in prison because he was a mandatory Class X offender based on his prior convictions. See 730 ILCS 5/5-4.5-25(a), 5-4.5-95(b) (West 2012). Defendant acknowledged that he understood his plea.

¶ 5 As a factual basis, the State alleged that on May 16, 2013, police were called to a garage at 416 West Vine Street in Springfield, Illinois, after witnesses reported seeing two black males enter the garage. Police found defendant and another male inside the garage and arrested them. Defendant did not have permission to be in the garage and evidence established that he had intended to commit a theft.

¶ 6 In August 2014, the trial court held a sentencing hearing and heard evidence in aggravation and mitigation. The State called Detective Michael Brown of the Springfield police department to testify in aggravation. Brown testified that in the two months immediately prior to defendant's arrest, 99 burglaries were reported in Springfield. Defense counsel made a general objection, and the State argued the testimony went to the need for deterrence. The court allowed the testimony for the sole purpose of deterrence. Brown did not suggest that defendant was involved in any other burglaries.

¶ 7 Brown testified he was familiar with defendant's case and aware that defendant had been found inside a garage. He stated that, during the course of his investigation, he spoke to several people defendant knew, including an "acquaintance" who reported that defendant was in the garage because he was "fulfilling orders for another gentleman." The State asked Brown if, over the course of the investigation, he learned of or developed any reason to believe defendant would burglarize again. Defense counsel objected, arguing that the question called for speculation. However, the trial court did not hear the full question, and the question was not repeated. The prosecutor immediately rephrased the question, asking whether Brown had interviewed defendant's codefendant and what the codefendant told Brown "about the defendant's intentions once he's released from prison after serving his sentence." According to Brown, defendant's codefendant stated defendant "had already picked out houses in the future that he was going to burglarize once he was released." Defense counsel did not obtain a ruling on the first objected-to question or object to the subsequent questioning.

¶ 8 Next, defendant presented the testimony of three witnesses in mitigation. Defendant's wife, Rhonda Cunningham, testified she had five children with defendant and that he was a good father to the children. Rhonda stated that, when defendant was not in prison, he provided for the family. She also testified she believed defendant had learned his lesson and would not commit another crime.

¶ 9 Defendant's mother, Shelia Cunningham, testified she suffered from Alzheimer's disease and that defendant took care of many things for her. She stated she had come to depend on his assistance in managing her bills and taking care of her. Shelia believed defendant had learned his lesson and would not commit another crime. A friend of defendant's family, James Laurenzana, testified defendant was a good person and that a lengthy prison sentence was not appropriate.

¶ 10 The presentence investigation report (PSI) showed defendant had a criminal history that consisted of numerous misdemeanor convictions, including convictions for knowingly damaging property, aggravated assault, possession of cannabis, and resisting a peace officer, as well as 18 prior convictions for driving with a suspended license. Defendant also had four felony convictions, including a 2003 forgery conviction, 2004 and 2005 burglary convictions, and a 2009 residential burglary conviction. Further, defendant had previously served three terms of imprisonment in the Illinois Department of Corrections (DOC). The PSI also showed that defendant had substance-abuse problems with multiple different substances, including alcohol, cannabis, and cocaine. Defendant expressed a willingness to engage in a substance abuse treatment program. The PSI further showed defendant had earned his general education degree and that his employment history included some work for restaurants.

¶ 11 Following the presentation of evidence, defense counsel asserted the parties had agreed on a 20-year sentencing cap. The State acknowledged that such an oral agreement had been made, and the judge stated he would abide by the 20-year cap.

¶ 12 In imposing sentence, the trial court stated it had considered the PSI, the financial impact of incarceration upon the State of Illinois, and all of the evidence in aggravation and mitigation. The court determined defendant's background showed he was "both a professional thief and a professional scofflaw." It acknowledged no evidence showed any physically violent behavior in the offense at issue or in defendant's criminal history; however, the court found that defendant had caused "great psychological violence" over the years by violating the sanctity of people's homes and property.

¶ 13 The trial court found defendant's criminal history to be a key factor in aggravation and noted he had been to prison three times previously for burglary-related charges. The court also stated it "appear[ed]" from the evidence that defendant received compensation for committing the offense at issue.

¶ 14 Concerning mitigation, the trial court acknowledged that some evidence showed defendant's family needed him for support; however, it concluded defendant had done little to provide legal financial support for his family, given his very limited work history. The judge stressed the importance of deterrence as a factor in any sentencing and ruled that a 20-year sentence was appropriate for defendant. Defendant was also given 447 days of credit against the sentence for his pretrial incarceration and 3 years of mandatory supervised release.

¶ 15 Defendant filed a timely motion to reconsider sentence, followed by an amended motion to reconsider. The motion challenged defendant's sentence, arguing it was excessive and based on improper factors not supported by evidence. Defendant argued his sentence was excessive because it was almost three times the length of his last sentence of imprisonment and of his codefendant's sentence. The motion further alleged generally that Brown's testimony was impermissible hearsay and, as a result, defendant was denied a fair sentencing hearing. Defendant requested a sentence of 14 years' or less imprisonment. In May 2015, the trial court denied defendant's amended motion to reconsider sentence.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant argues the trial court erred in sentencing him to 20 years in prison. He contends he was deprived of his right to a fair sentencing hearing due to the court's erroneous admission of evidence, consideration of improper aggravating factors, and failure to consider relevant mitigating factors. Defendant further maintains that his 20-year sentence was excessive. The State argues the court committed no errors at sentencing that deprived defendant of a fair hearing or resulted in an excessive sentence. We agree with the State.

¶ 19 A. Fair Sentencing Hearing

¶ 20 1. Admission of Evidence

¶ 21 Defendant first claims he was denied a fair sentencing hearing due to the erroneous admission of evidence. Specifically, he argues the trial court erred by considering testimony from Brown regarding (1) the number of burglaries that occurred in Springfield prior to defendant's arrest and (2) statements obtained during Brown's investigation of the case, which defendant maintains contained "multiple" or "double" hearsay.

¶ 22 "The ordinary rules of evidence governing a trial are relaxed at the sentencing hearing." People v. Williams , 2018 IL App (4th) 150759, ¶ 17, 421 Ill.Dec. 346, 99 N.E.3d 590. "Moreover, 'a sentencing judge is given broad discretionary power to consider various sources and types of information so that he can make a sentencing determination within the parameters outlined by the legislature.' " Id. (quoting People v. Williams , 149 Ill. 2d 467, 490, 174 Ill.Dec. 829, 599 N.E.2d 913, 924 (1992) ). "At the sentencing hearing, evidence is admissible if it is relevant and reliable." Id.

¶ 23 a. Other Burglaries

¶ 24 As indicated, defendant's first challenge to the admission of evidence concerns Brown's testimony as to the number of burglaries that occurred in Springfield prior to defendant's arrest in this case. Defendant argues the testimony was irrelevant and resulted in a sentence that punished him for other people's crimes. The State responds that defendant forfeited this issue and, alternatively, no error occurred because the testimony was relevant to the issue of deterrence, a proper sentencing factor.

¶ 25 Initially, we agree that defendant forfeited this issue. "[T]o preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required." People v. Hillier , 237 Ill. 2d 539, 544, 342 Ill.Dec. 1, 931 N.E.2d 1184, 1187 (2010). Here, defendant failed to raise his claim of error in his amended motion to reconsider his sentence. In arguing that he did raise the issue, defendant cites a portion of his amended motion where he complained only that Brown testified "to pure hearsay with no competent proof." However, this argument does not challenge the relevancy of Brown's testimony regarding the number of burglaries in Springfield prior to defendant's arrest. Additionally, our review of defendant's amended motion reveals no other reference to the challenged testimony. Accordingly, the issue has been forfeited by defendant.

¶ 26 In his reply brief, defendant argues his forfeiture should be excused under the plain-error doctrine. To obtain relief under the plain-error doctrine, "a defendant must first show that a clear or obvious error occurred." Id. at 545, 342 Ill.Dec. 1, 931 N.E.2d 1184. "In the sentencing context, a defendant must then show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing." Id. The defendant has the burden of persuasion when arguing that plain error occurred. Id. Additionally, "[a]s the first step in the analysis, we must determine whether any error occurred at all." Williams , 2018 IL App (4th) 150759, ¶ 16, 421 Ill.Dec. 346, 99 N.E.3d 590.

¶ 27 In this instance, we find no clear or obvious error. In exercising its broad sentencing discretion, a trial court "may logically give reasonable consideration to the need for deterrence as a factor in the imposition of a sentence." People v. Cameron , 189 Ill. App. 3d 998, 1010, 137 Ill.Dec. 505, 546 N.E.2d 259, 267 (1989). Thus, the need for deterrence was an appropriate consideration for the court. Moreover, the record reflects the court admitted the testimony at issue for the "sole purpose" of showing the need for deterrence. Contrary to defendant's assertions on appeal, the record presented does not reflect that the court acted to punish defendant for the conduct of others when imposing sentence.

¶ 28 b. Hearsay

¶ 29 Defendant further argues that Brown testified to prejudicial multiple or double hearsay evidence during sentencing. Specifically, he challenges Brown's testimony that (1) defendant's codefendant told him that defendant had "already picked out" several places he was planning to burglarize once he was released from prison and (2) an "acquaintance" of defendant told him that defendant was "fulfilling orders for another gentleman" when he committed the offense at issue. The State responds that defendant forfeited these issues by failing to raise them with the trial court and, alternatively, that no error occurred.

¶ 30 We agree with the State and find defendant failed to preserve these issues for appellate review. Notably, defendant failed to make a contemporaneous objection to the challenged testimony at his sentencing and did not raise the issue of multiple or double hearsay at any point during the underlying proceedings. Again, defendant asserts his alleged sentencing errors are reviewable as plain error. However, like before, we find no clear or obvious error occurred.

¶ 31 "[H]earsay testimony is not per se inadmissible at a sentencing hearing as unreliable or as denying a defendant's right to confront accusers."

People v. Foster , 119 Ill. 2d 69, 98, 115 Ill.Dec. 557, 518 N.E.2d 82, 94 (1987). An objection to such evidence goes to the weight of the evidence and not its admissibility. Id. Generally, double hearsay is admissible if "at least some parts of the double hearsay have been corroborated by other evidence." Id. Further, uncorroborated hearsay "is not inherently unreliable," particularly when the information was compiled during the course of an official investigation and where the evidence was never directly challenged. Id. at 98-99, 115 Ill.Dec. 557, 518 N.E.2d 82.

¶ 32 Initially, we find that the challenged testimony from Brown failed to rise to the level of double hearsay. Brown testified regarding statements made to him by defendant's codefendant and one of defendant's acquaintances. Specifically, Brown testified defendant's codefendant "stated [defendant] had already picked out houses in the future that he was going to burglarize once he was released" and that defendant's acquaintance reported that defendant "was actually fulfilling orders for another gentleman" when he committed the charged offense. However, we find no indication that the statements to Brown by defendant's codefendant and defendant's acquaintance, in fact, originated from another source. The out-of-court statements of the codefendant and acquaintance constituted hearsay, but, on this record, there is no support for defendant's assertion that their statements necessarily contained double or multiple hearsay.

¶ 33 Further, although the testimony contained hearsay, we find it was relevant to the issues presented and reliable. Regarding the reliability of Brown's testimony, we note that it concerned information that was compiled during the course of an official police investigation and was not directly challenged below. Id. Further, Brown's failure to identify the acquaintance that provided him with information did not render his testimony inadmissible; rather, such lack of identification goes only to the weight to be given the evidence. See People v. Moore , 171 Ill. 2d 74, 113, 215 Ill.Dec. 75, 662 N.E.2d 1215, 1233 (1996) (finding that a law enforcement officer's inability to identify the source of information testified to at the defendant's sentencing did not render his testimony unreliable and, instead, went to the weight to be given the evidence).

¶ 34 2. Factors in Aggravation and Mitigation

¶ 35 Defendant next contends he was denied a fair sentencing hearing because the trial court considered improper aggravating factors and failed to consider relevant mitigating factors. Specifically, he argues the court erroneously considered as aggravation that his conduct caused "great psychological violence" and that he received compensation for the offense at issue. Defendant further maintains the court ignored evidence in mitigation that he did not cause anyone serious physical harm during the commission of the offense and that his imprisonment would impose a hardship on his family.

¶ 36 "The Illinois Constitution provides penalties are to be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." People v. Daly , 2014 IL App (4th) 140624, ¶ 26, 386 Ill.Dec. 891, 21 N.E.3d 810 (citing Ill. Const. 1970, art. I, § 11 ). "This constitutional mandate calls for balancing the retributive and rehabilitative purposes of punishment, and the process requires careful consideration of all factors in aggravation and mitigation." Id. "[W]hether the trial court relied on an improper factor in imposing the defendant's sentence presents a question of law, which we review de novo ." Williams , 2018 IL App (4th) 150759, ¶ 18, 421 Ill.Dec. 346, 99 N.E.3d 590. A strong presumption exists "that the trial court based its sentencing determination on proper legal reasoning, and a court of review should consider the record as a whole, rather than focusing on a few words or statements by the trial court." (Internal quotation marks omitted.) Id. Further, a defendant has the burden of establishing that the court relied on improper considerations. Id.

¶ 37 The Unified Code of Corrections (Code) ( 730 ILCS 5/5-5-3.2(a) (West 2012) ) sets forth several aggravating factors that the trial court may consider at sentencing. Those factors include that:

"(1) the defendant's conduct caused or threatened serious harm;
(2) the defendant received compensation for committing the offense;
(3) the defendant has a history of prior delinquency or criminal activity; [and]
* * *
(7) the sentence is necessary to deter others from committing the same crime[.]" Id.

Additionally, relevant factors that may operate to mitigate a defendant's sentence include that "[t]he defendant's criminal conduct neither caused nor threatened serious physical harm to another" and "[t]he imprisonment of the defendant would entail excessive hardship to his dependents." 730 ILCS 5/5-5-3.1(a)(1), (11) (West 2012).

¶ 38 As indicated, defendant first argues the trial court erred by considering that his crimes caused "great psychological violence." Defendant maintains the court's comments regarding psychological violence were not grounded in fact and that the record supports only the conclusion that defendant had a nonviolent criminal history.

¶ 39 Here, the record shows the trial court made the following comments when setting forth its sentencing decision:

"Certainly [defendant is] not a physically violent man, I acknowledge that, that's proved beyond a doubt. There is no evidence of any physically violent criminal history, I don't believe.
However, he has caused over the years great psychological violence to people. He's violated the sanctity of the home and the people's property, and he has terrorized neighborhoods, because when people burglarize neighborhoods, it creates great fear within those neighborhoods, and this Defendant certainly has done that a lot over the years."

The court's comments clearly reflect that it determined defendant was a physically nonviolent offender. Further, we agree with the State's contention that the court's comments demonstrate its consideration of the nature and circumstances of defendant's criminal history. See People v. Thomas , 171 Ill. 2d 207, 227-28, 215 Ill.Dec. 679, 664 N.E.2d 76, 87 (1996) (stating that "while the fact of a defendant's prior convictions determines his eligibility for a Class X sentence, it is the nature and circumstances of these prior convictions which, along with other factors in aggravation and mitigation, determine the exact length of that sentence" (emphases in original) ). Here, the PSI showed defendant had four felony convictions-a 2003 forgery conviction, 2004 and 2005 burglary convictions, and a 2009 residential burglary conviction. The court's conclusion that he had violated the sanctity of the home and people's property was thus supported by the record and not error.

¶ 40 Second, defendant argues the court improperly determined, as an aggravating factor, that he received compensation for the underlying offense. He maintains his receipt of compensation was impossible because he was caught and arrested before stealing any property. Defendant also contends that the court's determination was improperly based on its finding that defendant received compensation for past offenses rather than solely the offense charged in this case.

¶ 41 As an aggravating factor, the receipt of compensation "applies only to a defendant who receives remuneration, other than proceeds from the offense itself, to commit a crime." People v. Conover , 84 Ill. 2d 400, 405, 50 Ill.Dec. 638, 419 N.E.2d 906, 909 (1981). With respect to this aggravating factor, "[i]t is reasonable to conclude that *** the legislature intended to impose a harsher sentence on one who is paid to commit a burglary or theft than on one who commits it on his own volition." Id.

¶ 42 Here, the trial court stated as follows with respect to the issue of compensation: "It would appear that [defendant] was compensated for the crime. There was testimony from the defense that he was supporting his family, and yet he was not employed, so one can only infer that that support came from the fruit of crimes ***." We agree that it is improper for a court to rely on a defendant's past criminal history or "the fruit" of past or present crimes when considering whether "the defendant received compensation for committing the offense." 730 ILCS 5/5-5-3.2(a)(2) (West 2012). Nevertheless, here, Brown's testimony that defendant was "fulfilling orders for another gentleman" when he committed the offense in this case, supports an inference that defendant received compensation for committing the burglary at issue and that the commission of the offense was not solely at his own volition. Accordingly, we find no error in the consideration of this aggravating factor.

¶ 43 Third, as stated, defendant argues the trial court improperly failed to consider mitigating evidence that he did not cause or contemplate serious physical harm when committing the offense and that imprisonment would serve a hardship to his family. The State contends defendant forfeited these claims because they were not specifically set forth in his amended motion to reconsider sentence. Defendant responds that any forfeited claim may be reviewed for plain error.

¶ 44 In this instance, we find no error occurred. The record refutes defendant's contention that the trial court failed to give "any consideration to the absence of violence either in this crime or in any of [defendant's] past offenses." In fact, that court explicitly stated defendant was "not a physically violent man" and there was "no evidence of any physically violent criminal history." The court's comments clearly reflect its consideration that defendant was not a physically violent offender.

¶ 45 Additionally, the record reflects the trial court also clearly considered the mitigating factor of whether defendant's imprisonment would cause a hardship to his family. The court referenced this factor when discussing the evidence in mitigation but found it did not apply. Specifically, it stated that although some evidence was presented that defendant's family needed him for support, defendant had a limited work history and there was "not much evidence that [he] legally supported his family in any financial sense." Although defendant correctly asserts that the "hardship to family" factor may entail more than just financial support, the record also contains evidence indicating defendant's ability to provide other types of support was limited. In particular, defendant had an extensive criminal history and had been sentenced to DOC on at least three prior occasions. Most recently, he received a seven-year sentence of imprisonment in 2009. Accordingly, we can find no error in the court's determination that this factor was entitled to little or no weight.

¶ 46 B. Excessive Sentence

¶ 47 Finally, on appeal, defendant argues his 20-year sentence was excessive.

¶ 48 "The sentence imposed by the trial court is entitled to great deference and will not be reversed on appeal absent an abuse of discretion." People v. McGuire , 2017 IL App (4th) 150695, ¶ 38, 419 Ill.Dec. 83, 92 N.E.3d 494. "A sentence within the statutory range will not be deemed excessive, and will not be disturbed, unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense." People v. Harris , 2015 IL App (4th) 140696, ¶ 55, 392 Ill.Dec. 211, 32 N.E.3d 211.

¶ 49 Here, defendant relies heavily on the First District's decision in People v. Allen , 2017 IL App (1st) 151540, ¶ 23, 420 Ill.Dec. 66, 95 N.E.3d 1162 (majority opinion), in arguing that his situation is almost identical if not less severe than the defendant in Allen , where the defendant's sentence was reduced. In Allen , Justice Hyman, joined by Justice Pucinski, concluded a reduction of sentence is proper where the sentence was disproportionate to the nature of the offense. Id. ¶ 15. In coming to this conclusion, the majority stated, "[t]he legislature has created sentencing ranges, and it is the trial court's job, and then our job, to impose a sentence that is appropriate, just, and proportionate, depending on the nature, seriousness, and character of the offense." Id. ¶ 16.

¶ 50 In Allen , the defendant broke a truck window and took a hat with two packs of cigarettes in it. Id. ¶ 15. The defendant dropped those items after being discovered, and the items were later recovered. Id. He was sentenced as a Class X offender due to his criminal history. Id. ¶ 6. The defendant had a long history of committing burglary and comparable crimes but no history of violence. Id. ¶¶ 17-18. The defendant showed little remorse for his crimes and was sentenced to 10½ years' incarceration. Id. ¶¶ 19, 22.

¶ 51 The majority in Allen relied on People v. Busse , 2016 IL App (1st) 142941, ¶ 31, 410 Ill.Dec. 200, 69 N.E.3d 425 (majority opinion), wherein Justice Hyman, joined by Justice Neville, carved out a "petty offense" exception to legislatively mandated Class X sentencing in order to reduce a sentence over the six-year minimum. The defendant in Busse was caught stealing $44 worth of quarters from a university vending machine. Id. ¶ 1. The defendant had a long criminal history of committing the same crimes but was not considered violent. Id. ¶ 2. The trial court sentenced him to 12 years' imprisonment. Id. ¶ 1. On appeal, the defendant's sentence was reduced to 6 years because the majority concluded the 12-year sentence did not reflect the seriousness of the offense. Id. ¶¶ 34, 38.

¶ 52 Here, defendant argues that he did not actually steal anything while the defendant in Allen did. See Allen , 2017 IL App (1st) 151540, ¶ 15, 420 Ill.Dec. 66, 95 N.E.3d 1162 (majority opinion). Neither defendant herein nor the defendant in Allen was considered violent; but the defendant in Allen had one robbery in his background, whereas defendant herein has never been convicted of a violent felony. See id. ¶¶ 17-18. Defendant points out that the defendant in Allen never accepted responsibility for his actions, whereas defendant herein accepted responsibility when he pleaded guilty. See id. ¶ 19. The Allen majority found 10½ years to be excessive and reduced the defendant's sentence to 6 years. Id. ¶¶ 21-22. Defendant argues he is serving 20 years for an offense that is no more serious then the defendant in Allen .

¶ 53 By contrast, Justice Mason dissented in Allen , reinforcing points from her dissent in Busse . In her dissent, Justice Mason stated the legislature chose to have Class X sentencing encompass any Class 1 and Class 2 felonies, even minor ones. Id. ¶ 26 (Mason, J., dissenting). Therefore, the court does "a disservice to trial judges to find that they have abused their discretion when they apply a statute as written, which is exactly what the trial court did here [in Allen ]." Id. ¶ 35. Justice Mason held that the defendant's sentence, which was within the applicable statutory range, was not an abuse of discretion because of the defendant's lengthy criminal history and his lack of remorse. Id. ¶¶ 27, 30. While Justice Mason expressed support for the majority's concern with the range of offenses subject to Class X sentencing, she found the reviewing court is not the branch of government to which that decision has been committed. Id. ¶¶ 35, 37.

¶ 54 While defendant in this case argues his offense is not serious enough to receive a Class X punishment, we agree with Justice Mason that it is for the legislature to enact the laws, not this court. Here, we only determine if the trial court abused its discretion in sentencing defendant based on his criminal history and factors in aggravation and mitigation. We find that defendant's sentence was within the statutory sentence range based on his lengthy criminal history and his potential to recommit similar offenses.

¶ 55 Additionally, the Illinois Supreme Court does not favor a "comb the books" approach to sentencing. See People v. Fern , 189 Ill. 2d 48, 62, 243 Ill.Dec. 175, 723 N.E.2d 207, 214 (1999) ("[A] claim that a sentence is excessive must be based on the particular facts and circumstances of that case. If a sentence is appropriate given the particular facts of that case, it may not be attacked on the ground that a lesser sentence was imposed in a similar, but unrelated, case."). This court has rejected and declined to "reward defendants who 'comb the books' to find a handful of cases presenting lesser sentences for the same statutory offense, thus enabling those defendants to then argue that the lesser sentences they found become the effective maximum sentences a trial judge can impose without expecting a remand for [each] resentencing." People v. Terneus , 239 Ill. App. 3d 669, 677, 180 Ill.Dec. 499, 607 N.E.2d 568, 573 (1992). We adhere to our Terneus approach and agree with Justice Mason's analysis in her dissents in Allen and Busse .

¶ 56 Here, the record fails to reflect the trial court abused its discretion when weighing the relevant aggravating and mitigating factors. Also, the imposed sentence was well within the applicable sentencing range, given defendant's status as a Class X offender. Defendant has not shown he was denied a fair sentencing hearing based on the testimony in the record, and the court did not abuse its discretion in sentencing him to 20 years' imprisonment.

¶ 57 III. CONCLUSION

¶ 58 For the reasons stated, we affirm defendant's conviction and sentence. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002(a) (West 2016).

¶ 59 Affirmed.

Justices Holder White and Steigmann concurred in the judgment and opinion.


text:
    Keith BOGGIO, Denise Boggio, James Bogner and Joe Bogner, Plaintiffs, v. Mark MUDGE, Granville Township Commissioner, and Patrick G. Sloan, Putnam County Engineer, Defendants-Appellees
    (Keith Boggio and Denise Boggio, Plaintiffs-Appellants).
    Appeal No. 3-17-0432
    Appellate Court of Illinois, Third District.
    Opinion filed October 17, 2018
   JUSTICE WRIGHT delivered the judgment of the court.

¶ 1 In accordance with the Illinois Highway Code, the highway commissioner for Granville Township, Mark Mudge, vacated 0.45 miles of the one-lane road, E. 1100th Street (the road), between N. 900 Avenue and N. 945 Avenue. Several interested parties appealed Mudge's decision by requesting a hearing before the Putnam County engineer, Patrick Sloan, who upheld Mudge's decision to vacate the road. The interested parties sought administrative review in Putnam County circuit court. The circuit court upheld the decision to vacate the short portion of the road. In this appeal, we are asked to review whether the Putnam County engineer's decision was clearly erroneous.

¶ 2 FACTS

¶ 3 On June 29, 2016, Mark Mudge, the highway commissioner for Granville Township, issued a road vacation certificate, which begins proceedings to vacate the road. On August 8, 2016, Mudge conducted a hearing on the matter at the Granville Township office.

¶ 4 Keith Boggio, Denise Boggio, James Bogner, and Joe Bogner, owners of the land adjacent to the road, attended the August 8, 2016, hearing and objected to the proposed closure of this portion of the road.

¶ 5 Following this hearing, Mudge issued an order vacating the road on August 9, 2016. The written document titled "Final Order of Road Vacation" contains preprinted boilerplate language that states a finding by Mudge that "said vacation is in the public and economic interest; and that all persons residing or owning land within two (2) miles of this road retains [sic ] reasonable access to their property * * *."

¶ 6 On August 12, 2016, the Boggios and the Bogners appealed the decision to the county highway superintendent, Patrick Sloan, on four grounds: (1) the Boggios would not have reasonable access to their land; (2) James Bogner would not have reasonable access to his land lying north of the creek; (3) Mudge failed to provide a legal description of the portion of the road that was proposed to be vacated; and (4) there had been no showing of a benefit to the public and economic interest of the citizens of Granville Township.

¶ 7 On September 8, 2016, Sloan held a hearing on the matter. At the hearing, Mudge introduced a letter from Illinois Valley Surveying and Consultants, dated June 17, 2016, that estimated the cost of constructing a new road to be $350,000. Mudge testified that repair of the road in question was not a priority for Granville Township and was not in the budget for the next year or two. Mudge stated that he might put a little gravel down. Mudge decided to vacate the road because "it washed out 20 years ago and we haven't done a thing to it and we don't-we don't have the money to fix it. It's economic reasoning on our part to vacate the road."

¶ 8 Following the evidence presented by Mudge, Keith Boggio, a farmer, testified that he and his wife, Denise Boggio, reside at 10746 N. 945th Avenue, Granville, Illinois, and have lived there for approximately 20 years. Mr. Boggio had traveled on the road in question since he was in eighth grade. The road is made up of gravel and dirt. The Boggios traveled the road to see cattle, go hunting, cut firewood, and look at the stars. Boggio testified that since a culvert in the road blew out approximately 30 years ago, the township had done no work on the road, and Boggio never requested that any work be done on the road. If the road was vacated, Boggio would have to travel more than two extra miles to access his property south of the creek. To access his farmland north of the creek, Boggio now crosses a churchyard. The owners of the churchyard allow Boggio to cross the churchyard, but there is no written easement. Boggio's wife also testified during this hearing, and her testimony was consistent with her husband's testimony. The Boggios agreed that vacating the road was not in the public or economic interests of the people of Granville Township.

¶ 9 James and Joe Bogner also testified at the hearing before Sloan. James Bogner testified that he did not expect Mudge to fix the road and that he did not want to have the road vacated so he could still have legal access from both ends of the road on either side of the blown-out culvert. James Bogner further testified that there was no detriment if the road was not improved. Joe Bogner testified that, while he would not be opposed to having a new bridge built over the creek, he had no expectation that the road would be worked on. Joe Bogner did not believe vacation of the road was in the public or economic interest of the township. The Boggios and the Bogners believed vacation of the road would devalue their property if the land was subdivided for the construction of residences. The devaluation would be a result of the fact that the new properties would have to be serviced by a private drive instead of a township road.

¶ 10 Lastly, Mike Kelsey, a citizen of Granville Township, testified during the hearing. Kelsey stated that it would not be in the taxpayer's best interests to spend $350,000 on the road.

¶ 11 On September 20, 2016, Sloan issued a memorandum of decision upholding Mudge's decision to vacate the road. Sloan reasoned that the Boggios and the Bogners would still have reasonable access to their respective tracts of land despite the road's vacation. Sloan determined that Mudge provided a sufficient legal description of the road and that vacation of the road would eliminate the eventual $350,000 cost to reconstruct this segment of the road.

¶ 12 On October 13, 2016, the Boggios and the Bogners filed a complaint for administrative review of Sloan's decision. On June 1, 2017, the parties participated in a hearing before the trial court. Following this hearing, the trial court issued an order affirming the decision to vacate the small segment of the road at issue. The trial court affirmed Mudge's decision that the Boggios and the Bogners would still have reasonable access to their respective tracts of land. The court noted that the public has been unable to use the road for many years. At best, the trial court reasoned that this segment of the road "provides limited convenience solely to the Plaintiffs on an extremely limited basis, such as hunting." The court also found that the people of Granville Township would "necessarily have to expend an estimated $350,000" to make this segment of the road "passable."

¶ 13 On July 6, 2017, the Boggios filed a timely notice of appeal. Joe Bogner, a plaintiff in the complaint for administrative review, passed away during the pendency of this appeal. James Bogner, also a plaintiff in the complaint for administrative review, has chosen not to appeal the decision of the trial court.

¶ 14 ANALYSIS

¶ 15 In this appeal, the Boggios take issue with Sloan's findings. Specifically, the Boggios claim that Sloan's decision should be set aside on several grounds. The Boggios submit the evidence did not establish that vacating this small portion of the roadway created economic benefits for the public. In addition, the Boggios contend that vacating this small portion of roadway deprives the property owners of reasonable access to their property. In addition, the Boggios submit the final order was deficient in other ways that are not outcome determinative.

¶ 16 When reviewing a final administrative decision, the appellate court's role is to review the administrative decision rather than the circuit court's decision. Express Valet, Inc. v. City of Chicago , 373 Ill. App. 3d 838, 847, 311 Ill.Dec. 951, 869 N.E.2d 964 (2007). A reviewing court may reverse an administrative decision where the administrative agency's legal determination was erroneous, its factual findings were against the manifest weight of the evidence, or its resolution of mixed questions of law and fact were clearly erroneous. Village of Oak Brook v. Sheahan , 2015 IL App (2d) 140810, ¶ 29, 396 Ill.Dec. 598, 40 N.E.3d 251. The agency decision is clearly erroneous only where the reviewing court is " 'left with the definite and firm conviction that a mistake has been committed.' " AFM Messenger Service, Inc. v. Department of Employment Security , 198 Ill. 2d 380, 395, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001) (quoting United States v. United States Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ). Based on this authority, we are tasked with deciding whether Sloan's decision to uphold Mudge's vacation of the road was clearly erroneous.

¶ 17 Initially, we note that only appellant's brief was submitted to this court. However, because the record in this case is simple and the claimed errors are easily discernible, we choose to address the merits of this appeal. Lynn v. Brown , 2017 IL App (3d) 160070, ¶ 7, 411 Ill.Dec. 7, 72 N.E.3d 427.

¶ 18 With regard to the Boggios' opening contentions, section 6-305 of the Illinois Highway Code provides:

"No road shall be laid out, widened, altered or vacated unless the highway commissioner finds that such alteration or vacation is in the public and economic interest and further finds that any person residing or owning land within 2 miles of any portion of the road proposed to be altered or vacated shall still have reasonable access (but not necessarily a direct route) by way of a motor vehicle or other portable farm machinery commonly used in the area to farm land he owns or operates and to community and trade centers after the road is altered or vacated. Such findings shall be contained in the memorandum of decision signed by the highway commissioner." 605 ILCS 5/6-305 (West 2016).

¶ 19 When the decision of the township highway commissioner is appealed to the county superintendent of highways, section 6-311 of the Illinois Highway Code provides:

"Every order entered and filed pursuant to this Section in approval of the change requested in the petition shall contain an express finding that such alteration or vacation of the township or district road will be in the public and economic interest and will not deprive residents or owners of proximate land of reasonable access elsewhere as specified in Section 6-305 of this Act." 605 ILCS 5/6-311 (West 2016).

¶ 20 In this case, Sloan stated that the condition of this segment of the road would necessitate the township investing in the road at some point in the future unless the road was vacated at this time. Sloan reasoned that even though Granville Township had not maintained the road in recent times, the township retained the burden of costly maintenance to the dilapidating road approximated to be $350,000 on some future but undetermined date.

¶ 21 Generally, the best predictor of future behavior is past behavior. In the absence of a request to upgrade this segment of the road, it is extremely unlikely that the township would change course and begin spending funds on this small segment of the road. Based on a well-established history, documented in this record, it is unlikely that the property owners would ask the township to do anything differently.

¶ 22 The purported economic benefit to the public that Sloan focused on is purely hypothetical unless the township has approved finite plans for improvements. For example, if Granville Township continues to stay the course, there will be no expense to keep the road open and no economic detriment to the public. However, if the township elects to level the road or put down new gravel, the economic detriment to the public would be much less than the hypothetical example discussed in this appeal.

¶ 23 Sloan's conclusion that there would be a substantial economic benefit for the public is contrary to the manifest weight of the evidence. The evidence proves there were not past expenses in the last two decades and no future planned expenditures for maintenance.

¶ 24 Based on the evidence presented during the hearing, we conclude there was no evidence in the record supporting Sloan's view that closing the road would result in a substantial economic benefit to the public.

¶ 25 The nature of our decision does not necessitate review of the other issues raised by the Boggios in this appeal.

¶ 26 CONCLUSION

¶ 27 The judgment of the circuit court of Putnam County is reversed.

¶ 28 Reversed.

Justice O'Brien specially concurred, with opinion.

Justice Schmidt dissented, with opinion.

¶ 29 JUSTICE O'BRIEN, specially concurring:

¶ 30 I write separately because I believe the county engineer's findings that adjacent landowners would still have reasonable access to their property after the road was vacated is clearly erroneous. Before a road can be vacated, section 6-305 of the Illinois Highway Code requires a finding that "any person residing or owning land within 2 miles of any portion of the road proposed to be * * * vacated shall still have reasonable access (but not necessarily a direct route) by way of a motor vehicle or other portable farm machinery commonly used in the area to farm land he owns or operates and to community and trade centers after the road is * * * vacated." 605 ILCS 5/6-305 (West 2016).

¶ 31 The findings of the Putnam County highway engineer were that a portion of the property would be accessible by all-terrain vehicle (ATV), the property could be accessed by another road if access was worked out with another township highway commissioner, there was access to the timbered portion through a short span of unvacated E. 1100 Street in the southeast corner of the property, and finally that access to one portion of the property was available via a grass waterway that was passable by farm machinery but difficult for grain wagons. None of these alternate theories of access satisfy the statutory requirement for reasonable access. See Town of Cotton Hill Road District v. Hockenyos , 130 Ill. App. 3d 379, 383, 85 Ill.Dec. 694, 474 N.E.2d 422 (1985) (noting that "the vacating of a road is likely to materially affect a farmer's access to fields or towns," which the statute is intended to prevent); Chamness v. Mays , 2014 IL App (5th) 130381, ¶ 35, 383 Ill.Dec. 718, 15 N.E.3d 496 (determinative factor in whether to vacate road was whether plaintiffs lacked legal right to alternate route to access their property); Novosad v. Mitchell , 251 Ill. App. 3d 166, 175, 190 Ill.Dec. 507, 621 N.E.2d 960 (1993) (acknowledging value of additional access in discussion regarding public benefit of new road).

¶ 32 At the time of the hearing, the township highway commissioner and county highway engineer acknowledged that there was no current access from the adjacent road, described as N. 945 Avenue, to the Boggios' property. The engineer further determined, without evidence, that the tillable portion of the property could be accessed from N. 945 Avenue, a finding contrary to the Boggios' testimony that there was no access. There was also no evidence offered that the neighboring township would grant the Boggios a point of access to their property. Since there was no current alternate access via any other public highway, the finding as it relates to this piece of property is clearly erroneous. See Novosad , 251 Ill. App. 3d at 174, 190 Ill.Dec. 507, 621 N.E.2d 960 (administrative decision must not be based on facts, data, or testimony that do not appear in the record).

¶ 33 Likewise, the use of an ATV as the method of access to property does not satisfy the requirement of reasonable access. Since an ATV cannot be driven on public highways, any finding that the reasonable access requirement is satisfied by a finding that some of the property would be accessible by ATV after the road is vacated is clearly erroneous. See 625 ILCS 5/111426.1(a)(1) (West 2016). While a landowner may be able to utilize an ATV to access remote parts of their private property, section 6-305 contemplates a means of ingress and egress from private land onto a public highway and then upon that public highway to municipalities or places where the landowner would likely conduct business affairs. 605 ILCS 5/6-305 (West 2016). Using the findings set out by the highway engineer, the landowners would not have access from this tract using a vehicle that can be legally driven on a public highway, and for that reason, this finding is also clearly erroneous.

¶ 34 Lastly, access across a grass waterway can only occur when there is no water and the ground is dry. Since there was no testimony about how often that grass waterway is filled with water or is passable, this alternative method of access also falls short of the requirement for reasonable access. See id.

¶ 35 Because none of the findings regarding access to the property after the road was vacated established that the property owners would have reasonable access as required by the statute, I would reverse the decision of the county highway engineer on this ground and deny the application of the township highway commissioner to vacate this portion of the road.

¶ 36 JUSTICE SCHMIDT, dissenting:

¶ 37 I would affirm. There is a blown-out culvert. This road has remained unrepaired for 20-some-odd years. What about township liability?