People v. Ahlers

NO. 4-09-0026 Filed 6/30/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Menard County
NATHAN D. AHLERS, ) No. 08CF6
Defendant-Appellant. )
) Honorable
) Richard D. Greenlief,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In May 2008, defendant, Nathan D. Ahlers, pleaded

guilty to aggravated criminal sexual abuse (720 ILCS 5/12-16(b)

(West 2008)) pursuant to an open plea. After accepting defen-

dant's guilty plea, the trial court sentenced him to four years

and six months in prison pursuant to the State's recommendation.

Defendant appeals, arguing that the trial court erred

by sentencing him to 4 1/2 years in prison. Specifically,

defendant contends that the court erred by considering (1)

defendant's mental retardation as an aggravating factor, (2)

unreliable nonstatutory factors in aggravation, and (3) informa-

tion from the reviewing psychiatrist's evaluation that was

obtained in violation of his privilege against self-incrimina-

tion. Because defendant has forfeited review of these issues, we

affirm.
 I. BACKGROUND

A. The State's Charge and Defendant's
Initial Psychological Evaluation

On April 4, 2008, the State charged defendant with

aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West

2008)), alleging that defendant had knowingly touched the penis

of his minor brother, N.A., for the purpose of sexual gratifica-

tion. On April 10, 2008, defendant filed a motion for psycholog-

ical evaluation, which the trial court granted. The results of

that psychological evaluation were, in part, as follows:

"[Defendant] is an 18[-]year-old male

with significant cognitive impairment who is

currently in *** [j]ail facing charges [that

he sexually abused] his 16[-]year[-]old

brother, who also is cognitively impaired.

At the time of his arrest, [defendant] was

serving probation for sexual[ly] abus[ing]

the same sibling earlier this year [(Menard

County case No. 08-CM-3)]. He has been pre-

viously diagnosed with Attention Deficit

Disorder.

*** [Defendant's] behavior most likely

reflects [his] impulse[-]dominated personal-

ity, and his limited capacity to delay grati-

fication, rather than an intent to act out

aggressively. Placing [defendant] in a fa-

cility with hardened criminals would likely

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 result in a continuation of his victimization

by others. However, he may lack the self[-]

control to resist victimizing those younger

or less capable then [sic] himself."

B. Defendant's Guilty Plea and Fitness Evaluation

In May 2008, defendant pleaded guilty to the

aggravated-criminal-sexual-abuse charge (720 ILCS 5/12-16(b)

(West 2008)) pursuant to an open plea--that is, defendant pleaded

guilty without receiving any promises from the State. In August

2008, defendant filed a motion to withdraw his guilty plea,

asserting that he (1) lacked an "understanding of the meaning and

impact of his guilty plea" and (2) had cognitive-ability scores

ranging from moderate to mild retardation. Following a September

2008 hearing, the trial court found that a bona fide doubt

existed as to defendant's fitness and ordered a fitness examina-

tion.

Dr. Daniel J. Cuneo, a clinical psychologist, performed

the fitness examination and reported, in part, the following

findings to the trial court:

"At the beginning of my interview with

[defendant], I informed him of the limited

confidentiality of my assessment as I would

be sending a copy of my findings to *** his

defense attorney[,] *** the State's Attor-

ney[,] and *** the presiding judge. When

asked if he understood the aforementioned

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information and if he wished to continue,

[defendant] nodded yes. I then asked him to

repeat back in his own words what he had just

agreed to do and he was able to say that I

was going to send a copy of my report to

other people.

* * *

It would be my opinion that

[defendant's] mental illness (Adjustment

Disorder with Anxious and Depressed Mood,

Dysthymic Disorder, Rule Out Attention Defi-

cit Hyperactivity Disorder, and Mild Mental

Retardation) does not at the present time

substantially impair his ability to under-

stand the nature and purpose of the proceed-

ings against him or his ability to assist in

his own defense. *** [Defendant] could ***

understand the concepts of plea bargaining

and probation. *** [E]ven though his memory

is impaired, he has sufficient memory to

relate these things in his own personal man-

ner. Therefore, it is my opinion that [de-

fendant] is presently fit to stand trial.

At the same time, [defendant] is intel-

lectually limited. His thinking is very

concrete and vocabulary that of a ten-year-

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 old. I would recommend that the vocabulary

be kept simple. I would also recommend that

periodic checks be made during the court

proceedings to make sure that [defendant]

understands what is happening. [Defendant]

should be asked then to explain back in his

own words what is happening and not simply

answer yes or no that he comprehends. He

does have the ability to comprehend the trial

proceedings if these concepts are broken down

into simpler terms."

In October 2008, the trial court accepted the parties' stipula-

tion that defendant was fit in light of Cuneo's report. Thereaf-

ter, defendant withdrew his motion to withdraw his guilty plea.

C. Defendant's Sentencing Hearing and the
Trial Court's Imposition of His Sentence

Following defendant's December 2008 sentencing hearing,

at which (1) defendant's father testified on defendant's behalf,

(2) the trial court called an employee from the Central Illinois

Services Access Group--which is a group home that provides

service and maximizes independence for the disabled--to testify

about security at its facility, (3) counsel presented argument,

and (4) defendant spoke on his own behalf, the court sentenced

defendant to 4 1/2 years in prison, explaining as follows:

"[T]he court has considered the

presentence investigation report, has spent

[a] considerable amount of time reading

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through all of the information that was pro-

vided here, the police reports, the State's

Attorney's referral letter, [and] the psycho-

logical evaluation ***.

[The psychological evaluation] dated ***

April 26th of this year [and] the sex of-

fender assessment *** would indicate this is

one of these difficult cases where *** [the

court does not] think there is any question

that the offense was committed.

The real question is his ability to be

rehabilitated. Whether he has impulse con-

trol, he has psychological factors [that]

would allow rehabilitation, and where that

rehabilitation should take place.

[The court] read[s] from [the sex-of-

fender assessment] that *** the conclusions

drawn from the summary place him at a 26

percent chance [to reoffend], [which] is not

defendant[-]specific as [the court] read[s]

the report.

But, 26 percent of all offenders who are

in a similar situation or the same situation

*** are expected to reoffend within five

years, and that in the court's mind is a

substantial risk to the public and places the

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public at risk wherever [defendant] is ***

housed.

[Looking] at some of the factors [from

the sex-offender assessment], quite honestly,

defendant, given his past behavior, his dis-

ability level, the problems that he has, he

is probably not a particularly good candidate

for rehabilitation. That in itself would

tend to argue that in fact placement for

[defendant] should be the Department of Cor-

rections [(DOC)].

On the plus side, [defendant], I see a

number of people in the front row here, and

[defendant's] father has testified, and [the

court has] no doubt that there is a strong

support system here for *** defendant should

[h]e choose to avail himself of the counsel-

ing.

It would seem to the court that it would

be extremely inappropriate to sentence [de-

fendant] to a situation where he would have

in any way contact with his sibling. [The

court does] note that *** [defendant's]

grandparents have volunteered during the

interim period to house him.

[The court] assume[s] from that ***

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offer that, in fact, they would be willing to

comply with any order which the court would

have, as far as [defendant having] no contact

with either sibling *** and a strong monitor

of his actions.

* * *

[Defendant], as [the court] weigh[s]

things in [its] own mind here, and the record

does not reflect this, but [the court] is

doing that. There are some lengthy pauses

between the things that [the court has] said

here. *** [The court has] to weigh [its] own

[assessment of the] potential that you are

going to reoffend, and [it] see[s] that it is

a large potential. *** [The court does not]

know what will happen.

This is not specific to you. Yet, in

the same respect, what [the court has to] go

by is *** the evaluation of the professionals

and go by the history that you have, and that

would seem to show that there is a longstand-

ing series of events[.] [I]n particular, one

where there was a probation at the beginning

of this year, and *** the new offense oc-

curred or was charged roughly three weeks

after you were placed on probation for essen-

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tially the same thing, a misdemeanor version

earlier this year.

It would seem to [the court] that, quite

frankly, one of *** the things that you lack

here is impulse control. [The court is]

confident that what you tell [the court] ***

is what you believe today, and that is that

you will not reoffend, but what [the court]

also ha[s] to take into consideration is how

to protect the public. ***

Yet, in the same respect, [the court is]

going to be placing you into a home, if [the

court] follow[s] what your attorney has sug-

gested, placing you into a home where there

are people just as deserving of protection,

and by placing you in that home, there will

be skilled service providers there.

Yet, in the same respect, what little

experience [the court] has had with others in

a similar situation that is not a great deal

of protection to the others that are there.

Bottom line is this, [defendant], as

much as [the court] would like to see you get

the help, [it] do[es not] think that the risk

that is there to the public is one where [the

court] can justify that by going along with

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 *** sentencing you to probation.

[The court] believe[s] that the only

appropriate sentence is a sentence to [DOC].

[The court] will follow the recommendation of

the State. That will be for a period of four

and a half years. There will be a two-year

mandatory supervised release."

D. Defendant's Motion To Reconsider Sentence
and the Trial Court's Ruling on That Motion

Shortly after defendant's December 2008 sentencing

hearing, defendant filed a motion to reconsider sentence. In

support of his motion, defendant claimed that (1) his sentence

was not imposed "according to the seriousness of the offense and

with the objective of restoring [defendant] to useful citizen-

ship"; (2) the trial court failed to consider as mitigating

factors (a) the fact that defendant was "particularly likely to

comply with the terms of probation" and (b) defendant's mental

retardation; and (3) defendant's sentence was not in keeping with

(a) "[his] past history or criminality, mental history and

capacity, and family situation" and (b) the "alternatives avail-

able to the [c]ourt to assist *** [d]efendant in his rehabilita-

tion." Following a January 2009 hearing, the court denied

defendant's motion to reconsider sentence.

This appeal followed.

II. DEFENDANT'S CLAIM THAT THE TRIAL COURT ERRED BY
IMPOSING A 4 1/2-YEAR PRISON SENTENCE

Defendant argues that the trial court erred by imposing

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a 4 1/2-year prison sentence. Specifically, defendant contends

that the court erred by considering (1) his mental retardation as

an aggravating factor, (2) unreliable nonstatutory factors in

aggravation, and (3) information from the reviewing psychia-

trist's evaluation that was obtained in violation of his privi-

lege against self-incrimination. We conclude that defendant has

forfeited review of these contentions.

A. Forfeiture Under Section 5-8-1(c)
of the Unified Code of Corrections

In People v. Reed, 177 Ill. 2d 389, 394, 686 N.E.2d

584, 586 (1997), the supreme court first explained that section

5-8-1(c) of the Unified Code of Corrections (Unified Code) (730

ILCS 5/5-8-1(c) (West 1994)) requires a written postsentencing

motion to "allow the trial court the opportunity to review a

defendant's contention of sentencing error and save the delay and

expense inherent in appeal if they are meritorious." In People

v. Montgomery, 373 Ill. App. 3d 1104, 1123, 872 N.E.2d 403, 419

(2007), this court, citing its decision in People v. Rathbone,

345 Ill. App. 3d 305, 802 N.E.2d 333 (2003), reiterated that

section 5-8-1(c) of the Unified Code (730 ILCS 5/5-8-1(c) (West

2004)) mandates that a defendant's challenge to any aspect of his

sentence be made by a written motion filed within 30 days of the

imposition of his sentence. Following the supreme court's

holding in Reed, we concluded in Rathbone that strict enforcement

of section 5-8-1(c) is necessary to allow the trial court to

review the precise claim of error so that it can either (1)

correct its mistake or (2) explain its reasons for imposing the

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sentence it did. Specifically, we noted as follows:

"[The] defendant's claim is precisely the

type of claim the forfeiture rule is

intended to bar from review when not first

considered by the trial court. Had [the]

defendant raised th[e] issue in the trial

court, that court could have answered the

claim by either (1) acknowledging its mis-

take and correcting the sentence, or (2)

explaining that the court did not improperly

sentence [the] defendant ***. If the court

did not change the sentence, then a record

would have been made on the matter ***,

avoiding the need for [the reviewing] court

to speculate as to the basis for the trial

court's sentence." Rathbone, 345 Ill. App.

3d at 310, 802 N.E.2d at 337.

The rationale from Rathbone--as it was in Montgomery--

applies equally to this case. Here, defendant failed to raise

the claims in his motion to reconsider sentence that he now

posits on appeal. Specifically, defendant claimed that the trial

court should reconsider the sentence it imposed because (1) his

sentence was not imposed "according to the seriousness of the

offense and with the objective of restoring [defendant] to useful

citizenship"; (2) it failed to consider (a) the fact that defen-

dant was "particularly likely to comply with the terms of proba-

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tion" and (b) defendant's mental retardation as mitigating

factors; and (3) defendant's sentence was not in keeping with (a)

"[his] past history or criminality, mental history and capacity,

and family situation" and (b) the "alternatives available to the

[c]ourt to assist *** [d]efendant in his rehabilitation." These

are not the claims he now posits on appeal, which are that the

trial court improperly considered (1) his mental retardation as

an aggravating factor, (2) unreliable nonstatutory factors in

aggravation, and (3) information from the reviewing psychia-

trist's evaluation that was obtained in violation of his privi-

lege against self-incrimination. Accordingly, defendant has

forfeited these arguments pursuant to section 5-8-1(c) of the

Unified Code.

We further conclude that Supreme Court Rule 604(d) (210

Ill. 2d R. 604(d)) offers a second, and independent, reason to

consider defendant's arguments forfeited.

B. Forfeiture Under Supreme Court Rule 604(d)

Supreme Court Rule 604(d), which governs appeals from

judgments entered upon guilty pleas, provides, in pertinent part,

that "any issue not raised by the defendant in the motion to

reconsider the sentence *** shall be deemed [forfeited]." 210

Ill. 2d R. 604(d).

In People v. Williams, 299 Ill. App. 3d 791, 795, 701

N.E.2d 1186, 1189 (1998), this court noted the supreme court's

rationale for enacting Rule 604(d) as follows:

"Rule 604(d) is the supreme court's direct

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 response to the large number of appeals in

the early 1970s that flooded the appellate

court. People v. Evans, 174 Ill. 2d 320,

329, 673 N.E.2d 244, 248 (1996). By promul-

gating this rule, the supreme court simply

notified defendants that if they really claim

to be aggrieved by some deficiency in the

trial court proceedings during which they

pleaded guilty, then they must first call the

alleged deficiency to the trial court's at-

tention, where relief could be granted.

Otherwise, permitting such defendants to

appeal would result *** in an unjustified

waste of scarce judicial resources."

Here, defendant pleaded guilty pursuant to an open

plea, rendering Rule 604(d) applicable. Because, as previously

discussed, defendant failed to raise the arguments in his motion

to reconsider sentence that he now posits on appeal, we conclude

that defendant has forfeited his claims under Rule 604(d) as

well.

C. The Plain-Error Doctrine and This Case

Despite having forfeited his claims on multiple

grounds, defendant contends that his procedural default may be

excused by the plain-error doctrine of Supreme Court Rule 615(a)

(134 Ill. 2d R. 615(a)). We disagree.

Supreme Court Rule 615(a) provides as follows:

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 "Any error, defect, irregularity, or

variance which does not affect substantial

rights shall be disregarded. Plain errors or

defects affecting substantial rights may be

noticed although they were not brought to the

attention of the trial court." 134 Ill. 2d

R. 615(a).

In People v. Bannister, 232 Ill. 2d 52, 65, 902 N.E.2d

571, 580 (2008), the supreme court provided the following guid-

ance concerning the circumstances in which the plain-error

doctrine applies:

"The doctrine serves as '"a narrow and lim-

ited exception to the general [rule of proce-

dural default]."' People v. Szabo, 113 Ill.

2d 83, 94[, 497 N.E.2d 995, 999] (1986),

quoting People v. Pastorino, 91 Ill. 2d 178,

188[, 435 N.E.2d 1144, 1149] (1982). This

court will review unpreserved error when a

clear and obvious error occurs and: (1) the

evidence is closely balanced; or (2) that

error is so serious that it affected the

fairness of the defendant's trial and chal-

lenged the integrity of the judicial process.

People v. Piatkowski, 225 Ill. 2d 551, 565[,

870 N.E.2d 403, 410-11] (2007); People v.

Hall, 194 Ill. 2d 305, 335[, 743 N.E.2d 521,

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 539] (2000)."

"'Under both prongs of the plain-error doctrine, the burden of

persuasion remains with defendant.'" People v. Wishard, 396 Ill.

App. 3d 283, 286, 919 N.E.2d 1118, 1120 (2009), quoting People v.

Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009). "When

a defendant fails to establish plain error, the result is that

the 'procedural default must be honored.'" Bannister, 232 Ill.

2d at 65, 902 N.E.2d at 580-81, quoting People v. Keene, 169 Ill.

2d 1, 17, 660 N.E.2d 901, 910 (1995).

Defendant relies on the Second District's decision in

People v. McCain, 248 Ill. App. 3d 844, 850, 617 N.E.2d 1294,

1299 (1993), for the proposition that the plain-error doctrine

applies to this case because his challenges to his sentence

"affect[] [his] fundamental right to liberty." However, the

plain-error doctrine is not a general savings clause, to be used

as a means by which to preserve all errors affecting substantial

rights that have not been brought to the trial court's attention.

People v. Herron, 215 Ill. 2d 167, 177, 830 N.E.2d 467, 474

(2005). And we note that defendant's contention here is essen-

tially the same contention this court rejected in Rathbone.

Rathbone, 345 Ill. App. 3d at 311, 802 N.E.2d at 338 (holding

that it is not sufficient to "simply state that because sentenc-

ing affects the defendant's fundamental right to liberty, any

error committed at that stage is reviewable as plain error").

Nonetheless, as previously stated, sentencing errors raised for

the first time on appeal are reviewable as plain error if (1) the

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evidence was closely balanced or (2) the error was sufficiently

grave that it deprived the defendant of a fair sentencing hear-

ing. Rathbone, 345 Ill. App. 3d at 312, 802 N.E.2d at 339.

In this case, defendant does not specifically assert

that (1) the evidence at the sentencing hearing was closely

balanced or (2) any of the alleged errors deprived him of a fair

sentencing hearing. However, defendant does contend that the

trial court committed error when it considered certain improper

information in aggravation. Thus, although defendant never

specifically asserts as much, for purposes of plain-error review,

he appears to be challenging the fairness of his sentencing

hearing. Assuming arguendo that the trial court erred by consid-

ering improper information in aggravation, we conclude that

defendant's sentencing hearing was not fundamentally unfair.

Therefore, we do not deem defendant's claims sufficient to

warrant plain-error review.

In so concluding, we note that the crime defendant

pleaded guilty to carried a minimum sentence of three years and a

maximum sentence of seven years in prison (see 720 ILCS 5/12-

16(g) (West 2008) (designating aggravated criminal sexual abuse

(720 ILCS 5/12-16(b) (West 2008)) a Class 2 felony)). Thus,

defendant's 4 1/2-year prison sentence was a mid-range sentence.

The record shows that the State recommended the 4 1/2-year

sentence after explaining how it had carefully considered the

circumstances in this case. Indeed, the State (1) did not pursue

a violation-of-probation charge against defendant and (2) recom-

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mended the mid-range sentence after balancing the fact that

defendant (a) had recently committed the same crime against the

same victim and (b) was dealing with a cognitive disability.

Moreover, the record from the sentencing hearing also shows that

the trial court painstakingly considered all the factors related

to (1) defendant's condition, (2) the nature of the offense, and

(3) sentencing alternatives before imposing the sentence recom-

mended by State. Accordingly, we do not view any alleged errors

in defendant's sentencing hearing as having jeopardized the

integrity or reputation of the judicial process.

In closing, we also note that defendant asserts as a

last resort that we should view his trial counsel's failure to

preserve these issues as ineffective assistance of counsel. For

the reasons that this court has outlined in People v. Durgan, 346

Ill. App. 3d 1121, 806 N.E.2d 1233 (2004), we decline to address

this claim. In so doing, we invite defendant to pursue his

ineffective-assistance-of-trial-counsel claims under the Post-

Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West

2008)), where a complete record can be made regarding the circum-

stances of his counsel's alleged ineffectiveness.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we award the State its $50

statutory assessment as costs of this appeal.

Affirmed.

MYERSCOUGH, P.J., and McCULLOUGH, J., concur.

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