People v. Gabriel

2022 IL App (1st) 201170-U
Order filed: June 30, 2022

FIRST DISTRICT
FOURTH DIVISION

No. 1-20-1170

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 02 CR 30355
)
ADRIAN GABRIEL, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Reyes and Justice Martin concurred in the judgment.

ORDER

¶1 Held: Defendant’s aggregate 39-year sentence is affirmed, where he failed to show that
the circuit court did not consider the relevant sentencing factors contained in section
5-4.5-105 of the Unified Code of Corrections.

¶2 Defendant-appellant, Adrian Gabriel, appeals from the aggregate 39-year sentence which

he received upon resentencing for multiple aggravated criminal assault convictions defendant

received for offenses he committed when he was 15 years old. On appeal, defendant contends that

the circuit court failed to consider all the relevant sentencing factors contained in section 5-4.5-

105 of the Unified Code of Corrections. 730 ILCS 5/5-4.5-105 (West 2020). For the following

reasons, we affirm.
No. 1-20-1170

¶3 The procedural history of this matter is extensive, and we therefore restate only those facts

necessary for our resolution of this appeal. In December 2002, defendant and a codefendant were

charged by indictment with multiple counts of aggravated criminal sexual assault, armed robbery,

and aggravated kidnapping, as well as a single count alleging the commission of a hate crime. Each

count involved an incident allegedly occurring on or about November 19, 2002. A bench trial on

those charges was held in 2004.

¶4 At trial, the evidence established that defendant was 15 years old on November 19, 2002,

when he and others forced two victims to enter a garage where the two victims were forced to

perform various sex acts. When defendant discovered that one of the victims, C.B., was a

transgender individual, C.B. was harassed and threatened, as well as further physically and

sexually assaulted. Defendant stole money from C.B. before she was able to escape and call the

police. Defendant was found guilty of six counts of aggravated criminal sexual assault, aggravated

kidnapping, and committing a hate crime.

¶5 Defendant was then sentenced to consecutive terms of 8 years in prison on each of the 6

aggravated criminal sexual assault counts, as well as concurrent sentences of 15 years’

imprisonment for one count of aggravated kidnapping and 3 years’ imprisonment for one count of

committing a hate crime. On direct appeal, this court vacated defendant’s conviction for

aggravated kidnapping on one-act, one-crime principles and amended the mittimus to reflect the

proper presentence credit. People v. Gabriel, 1-04-2385 (2007) (unpublished order under Illinois

Supreme Court Rule 23).

¶6 On February 29, 2008, defendant filed an initial postconviction petition under the Post-

Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2008). After that petition was summarily

dismissed by the circuit court, this court affirmed the dismissal as the record on appeal was

-2-
No. 1-20-1170

incomplete and insufficient to allow for appellate review. People v. Gabriel, 2011 IL App (1st)

081531-U.

¶7 On December 21, 2017, defendant filed a motion in the circuit court seeking leave to file a

successive postconviction petition asserting—inter alia—that his “sentence should be vacated and

remanded for a new sentencing hearing which takes into account all of the factors mandated by

law which concern his youth at the time of the offense.” The circuit court denied this motion, and

on appeal from that order this court granted defendant’s motion for summary disposition and

entered an order remanding this matter to the circuit court “with instructions to vacate

[defendant’s] sentence and to re-sentence [defendant] according to the holding in People v. Buffer,

2019 IL 122327.” People v. Gabriel, 1-18-1805 (June 7, 2019).

¶8 Upon remand, the circuit court entered an order vacating defendant’s prior sentence,

obtained an updated presentence investigation report, and reviewed a psychiatric report on

defendant that was contained in the court file. The circuit court also recognized that it was to

resentence defendant on the six aggravated criminal sexual assault convictions pursuant to the

decision in Buffer, 2019 IL 122327, ¶¶ 40-42, in which our supreme court held that any sentence

of over 40 years’ imprisonment is a de facto life sentence that requires a sentencing court to

consider a minor defendant’s youth and attendant characteristics. The circuit court then confirmed

with the State and defense counsel that—if the facts warranted it and the relevant factors were

found to be present—the court could potentially resentence defendant to a de facto life sentence

of more than 40 years’ imprisonment. Of note, neither of the parties nor the circuit court ever

specifically addressed the appropriate sentence for the hate crime count, with the circuit court

specifically indicating its belief that only the six aggravated criminal sexual assault convictions

were “before me.”

-3-
No. 1-20-1170

¶9 In aggravation, the State read a victim impact statement from C.B. into the record and asked

the circuit court to consider the testimony and evidence introduced at the original sentencing

hearing. The State also noted that defendant had two prior juvenile adjudications of delinquency

for residential burglary and ethnic intimidation, with the intimidation adjudication involving an

incident in which defendant stabbed a man after he “made a pass” at one of defendant’s male

friends. Noting that the minimum sentence for the 6 counts of aggravated criminal sexual assault

would amount to a total of 36-years’ imprisonment, and that anything over 40 years’ imprisonment

would amount to a de facto life sentence, the State asked for a sentence of 40 years’ imprisonment

considering: (1) “the extreme violence, extreme brutality, multiple sexual assaults that were

committed,” and (2) the fact that the original sentencing judge found that there was a “chance for

his rehabilitation” considering defendant’s youth.

¶ 10 In mitigation, defense counsel commenced by stressing that “sentencing has changed since

2002” and decisions such as Buffer require the court to “take into account my client’s age at the

time.” Defense counsel then noted that while defendant’s actions in this case were “horrendous,”

defendant was only 15 years old when he committed these crimes. Defendant also had a troubled

childhood, where his father died when defendant was 7 years old, his mother and stepfather were

addicted to drugs, he was kicked out of the family home on many occasions, he was the victim of

sexual abuse himself, and defendant was ultimately made a ward of the court. Noting that juveniles

lack maturity and are susceptible to negative influences, defense counsel also noted that juveniles

are capable of change. Defendant had demonstrated such positive change while incarcerated, by

having only minor infractions and by completing various educational programs, including earning

his GED. After defendant made a statement in allocution in which he took responsibility for his

actions and expressed remorse, defense counsel asked the circuit court to impose a minimum

-4-
No. 1-20-1170

aggregate sentence of 36 years’ imprisonment considering all the relevant factors, most

importantly the fact that defendant was only 15 years old at the time he committed these crimes.

¶ 11 In announcing its sentence, the circuit court began by noting that at the original sentencing

hearing defendant apologized to his mother but did not apologize to C.B. The court also

highlighted defendant’s two juvenile adjudications and defendant’s “horrible” actions in this case,

in which “[e]verything you can possibly do in a sexual context, he did it to [C.B.].” The court

acknowledged defendant’s troubled past, including his prior juvenile treatment for “explosive

disorder,” as well as the fact that defendant “has done a lot of good things while he was in custody.”

¶ 12 The circuit court then rejected defendant’s request for a minimum sentence, while also

finding that “based on what I heard today” 40 years’ imprisonment would be the “maximum.”

Defendant was then sentenced to 6.5 years’ imprisonment on each of the 6 aggravated criminal

assault convictions, for a total aggregate sentence of 39 years’ imprisonment. The circuit court

noted that with sentencing credit defendant would “still be a young man *** less than 50 years

old” when he was released from prison, and encouraged defendant to continue his education in

prison and “hopefully change your ways once you get out.” Again, the hate crime count was never

specifically addressed, and the sentencing order only contains sentences for the six aggravated

criminal sexual assault convictions.

¶ 13 Defendant timely appealed. On appeal, defendant contends that this matter must be

remanded for resentencing due to the circuit court’s failure to expressly consider several of the

factors contained in section 5-4.5-105 of the Unified Code of Corrections. 730 ILCS 5/5-4.5-105

(West 2020). Before addressing the merits of that argument, however, we briefly discuss and

clarify this court’s jurisdiction over this matter, considering the fact that defendant was not

resentenced on the hate crime count upon remand.

-5-
No. 1-20-1170

¶ 14 Our jurisdiction extends only to “final judgments.” Ill. Const. 1970, art. VI, § 6. And, as

our supreme court has explained, “it is axiomatic that there is no final judgment in a criminal case

until the imposition of sentence, and, in the absence of a final judgment, an appeal cannot be

entertained.” People v. Flores, 128 Ill. 2d 66, 95 (1989). Where a defendant is found guilty of

multiple offenses, but sentences are not imposed for each offense, an appellate court only has

jurisdiction to address those convictions for which sentences were imposed and lacks jurisdiction

to consider “unsentenced convictions.” People v. Relerford, 2017 IL 121094, ¶ 75.

¶ 15 Here, when the circuit court vacated defendant’s prior sentences pursuant to our remand

order it did so in toto. This left defendant unsentenced for the six aggravated criminal sexual assault

counts and single hate crime count for which he was found guilty, excepting only the aggravated

kidnapping conviction that was previously vacated by this court on direct appeal. However,

defendant was never resentenced for the hate crime count upon remand and therefore no final order

with respect to that offense has been entered. We therefore only have jurisdiction to consider the

six aggravated criminal sexual assault counts for which defendant received sentences.

¶ 16 Under the Illinois Constitution, a trial court shall impose a sentence that reflects both “the

seriousness of the offense” and “the objective of restoring the offender to useful citizenship.” Ill.

Const. 1970, art. I, § 11; People v. McWilliams, 2015 IL App (1st) 130913, ¶ 27. “[T]he trial court

has broad discretionary powers in imposing a sentence.” People v. Stacey, 193 Ill. 2d 203, 209

(2000). The trial court receives “substantial deference” on sentencing decisions because the court,

having directly observed the defendant and the proceedings, is in the superior position to weigh

factors including “the defendant’s credibility, demeanor, moral character, mentality, environment,

habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36.

¶ 17 A sentence within statutory guidelines is presumed proper (People v. Knox, 2014 IL App

-6-
No. 1-20-1170

(1st) 120349, ¶ 46) and will only be disturbed where there is an abuse of discretion (People v.

Jones, 168 Ill. 2d 367, 373-74 (1995)). An abuse of discretion exists where a sentence within

statutory limits is “greatly at variance with the spirit and purpose of the law, or manifestly

disproportionate to the nature of the offense.” Stacey, 193 Ill. 2d at 210. In reviewing a defendant’s

sentence, this court “must not substitute its judgment for that of the trial court merely because it

would have weighed [the] factors differently.” (Internal quotation marks omitted.) People v.

Alexander, 239 Ill. 2d 205, 213 (2010). Despite defendant’s contention on appeal to the contrary,

we apply an abuse of discretion standard to his arguments regarding the circuit court’s purported

failure to properly apply section 5-4.5-105. People v. Kindle, 2021 IL App (1st) 190484, ¶¶ 65-67;

People v. Villalobos, 2020 IL App (1st) 171512, ¶¶ 71-73.

¶ 18 Furthermore, a court is “not required to recite or assign a value to each mitigating and

aggravating factor in the record.” Kindle, 2021 IL App (1st) 190484, ¶ 74. We will presume “that

the trial court properly considered all mitigating factors and rehabilitative potential before it, and

the burden is on defendant to affirmatively show the contrary.” People v. Johnson, 2020 IL App

(1st) 162332, ¶ 95. Defendant’s contention on appeal once again to the contrary, this presumption

also applies to defendant’s contention that the circuit court improperly failed to expressly consider

several of the factors contained in section 5-4.5-105. Kindle, 2021 IL App (1st) 190484, ¶ 73;

Villalobos, 2020 IL App (1st) 171512, ¶ 74. Ultimately, “the seriousness of an offense, and not

mitigating evidence, is the most important factor in sentencing” (People v. Wilson, 2016 IL App

(1st) 141063, ¶ 11), and “the presence of mitigating factors neither requires a minimum sentence

nor precludes a maximum sentence” (People v. Jones, 2014 IL App (1st) 120927, ¶ 55).

¶ 19 Here, defendant was sentenced as a Class X offender to 6.5 years’ imprisonment for each

of his aggravated criminal sexual assault convictions, well within the statutory range of 6 to 30

-7-
No. 1-20-1170

years. See 720 ILCS 5/12-14(d) (West 2002) (certain aggravated criminal sexual assault

convictions shall be sentenced as a Class X offender); 730 ILCS 5/5-4.5-25(a) (West 2020) (for

Class X felonies, the sentencing range is 6 to 30 years’ imprisonment). Thus, we presume his

aggregate 39-year sentence was proper absent some indication otherwise. People v. Burton, 2015

IL App (1st) 131600, ¶¶ 36, 38 (A defendant “must make an affirmative showing that the

sentencing court did not consider the relevant factors.”).

¶ 20 To make this showing, defendant faults the circuit court for its purportedly improper failure

to expressly consider several of the factors contained in section 5-4.5-105 of the Unified Code of

Corrections, which provides:

“(a) On or after the effective date of this amendatory Act of the 99th General

Assembly, when a person commits an offense and the person is under 18 years of

age at the time of the commission of the offense, the court, at the sentencing hearing

conducted under Section 5-4-1, shall consider the following additional factors in

mitigation in determining the appropriate sentence:

(1) the person’s age, impetuosity, and level of maturity at the time of the

offense, including the ability to consider risks and consequences of behavior, and

the presence of cognitive or developmental disability, or both, if any;

(2) whether the person was subjected to outside pressure, including peer

pressure, familial pressure, or negative influences;

(3) the person’s family, home environment, educational and social

background, including any history of parental neglect, physical abuse, or other

childhood trauma;

(4) the person’s potential for rehabilitation or evidence of rehabilitation, or

-8-
No. 1-20-1170

both;

(5) the circumstances of the offense;

(6) the person’s degree of participation and specific role in the offense,

including the level of planning by the defendant before the offense;

(7) whether the person was able to meaningfully participate in his or her

defense;

(8) the person’s prior juvenile or criminal history; and

(9) any other information the court finds relevant and reliable, including an

expression of remorse, if appropriate. However, if the person, on advice of counsel

chooses not to make a statement, the court shall not consider a lack of an expression

of remorse as an aggravating factor.” 730 ILCS 5/5-4.5-105 (West 2020).

¶ 21 As an initial matter, the State contends on appeal that this statute is simply inapplicable

here where defendant committed his crimes before the effective date of the act adding this section

to the Unified Code of Corrections. Defendant contends otherwise. We need not wade into that

debate, as even assuming this section applied to defendant’s resentencing, defendant’s argument

on appeal is unpersuasive.

¶ 22 First, we reiterate that a court is not “required to recite or assign a value to each mitigating

and aggravating factor in the record” (Kindle, 2021 IL App (1st) 190484, ¶ 74), and we will

presume “that the trial court properly considered all mitigating factors and rehabilitative potential

before it, and the burden is on defendant to affirmatively show the contrary” (Johnson, 2020 IL

App (1st) 162332, ¶ 95). This presumption applies to defendant’s contention that the circuit court

improperly failed to expressly consider several of the factors contained in section 5-4.5-105.

Kindle, 2021 IL App (1st) 190484, ¶ 73; Villalobos, 2020 IL App (1st) 171512, ¶ 74. As there is

-9-
No. 1-20-1170

nothing affirmative in the record to the contrary, it is appropriate to apply this presumption here.

¶ 23 Second, the record here actually reflects that the circuit court did explicitly address some

of the statutory factors defendant contends were not specifically addressed. While defendant

contends the court never “referenced the fact that Adrian was barely 15 years old at the time of the

instant offenses,” the circuit court was repeatedly reminded of the evidence of this fact at

resentencing, and specifically noted that defendant would “still be a young man *** less than 50

years old” when he was released from prison. (Emphasis added.) Defendant next complains that

the circuit court did not make findings as to how defendant’s young age affected his impetuosity

and maturity at the time of the offenses. The statute, however, only requires a court to “consider”

the relevant factors, and the relevant subsection actually requires the court to consider a

defendant’s “impetuosity, and level of maturity at the time of the offense, including the ability to

consider risks and consequences of behavior, and the presence of cognitive or developmental

disability.” 730 ILCS 5/5-4.5-105(a)(1) (West 2020). The circuit court specifically referenced

defendant’s prior diagnosis with explosive disorder as a juvenile.

¶ 24 Furthermore, while defendant notes that the circuit court did not make any findings as to

whether defendant was “subjected to outside pressure, including peer pressure, familial pressure,

or negative influences,” (730 ILCS 5/5-4.5-105(a)(2) (West 2020)), he fails to recognize that there

was simply no evidence presented that these factors were present in this case. Finally, it may well

be true that the circuit court did not specifically “make any findings relative to the fact that Adrian

had been sexually abused as a child, or that his father died when Adrian was just seven years old

and he was then raised by his mother, who was a drug addict, and eventually a stepfather who was

also a drug addict,” and that such history was relevant under the statute. 730 ILCS 5/5-4.5-

105(a)(3) (West 2020). However, we again note that the statute only requires a court to “consider”

- 10 -
No. 1-20-1170

the relevant factors and the circuit court was simply not required to expressly consider each of the

factors contained in section 5-4.5-105. Kindle, 2021 IL App (1st) 190484, ¶ 73; Villalobos, 2020

IL App (1st) 171512, ¶ 74.

¶ 25 Given the deference we owe to sentences within the statutory range (People v. Vega, 2018

IL App (1st) 160619, ¶ 64), coupled with the circuit court’s careful consideration of the factors in

aggravation and mitigation and the presumptions discussed above, we do not see a justification to

disturb the circuit court’s sentencing judgment.

¶ 26 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 27 Affirmed.

- 11 -