dissenting:
I disagree both with the majority’s forfeiture analysis and with its conclusion that the trial court improperly used defendant’s mental retardation as an aggravating factor in sentencing defendant. Accordingly, I would affirm the appellate court’s judgment.
FORFEITURE
Resolution of this appeal should be relatively straightforward. I agree with the appellate court’s determination that defendant forfeited his argument that the trial court improperly used a statutory mitigating factor — mental retardation — to aggravate defendant’s sentence. Indeed, the point hardly seems debatable. As the majority notes, in order to preserve a sentencing issue for appellate review, the issue must be raised in a written postsentencing motion. 730 ILCS 5/5—8—1(c) (West 2006); People v. Reed, 177 Ill. 2d 389, 390 (1997). Here, defendant raised a single issue in his motion to reconsider the sentence:
“Considering the facts and circumstances of this case, the history and character of the Defendant, the Defendant’s lack of any prior criminal record, and the Defendant’s mental functioning, the sentence of ten years in the Illinois Department of Corrections is unduly harsh and severe.”
Defendant did not argue that the trial court improperly treated mental retardation — a statutory mitigating factor — as aggravating. Accordingly, that claim is forfeited.
Forfeiture in criminal cases is governed by Rule 615, which provides that, “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the reviewing court” (134 Ill. 2d R. 615). In People v. Piatkowski, 225 Ill. 2d 551 (2007), we explained that, under Rule 615, a defendant may obtain relief on a forfeited issue when either of two situations is present: (1) “a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error,” or (2) “a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565. Once a forfeiture occurs, and plain-error review is triggered, the burden is on the defendant to demonstrate that one of these two prongs has been satisfied. See People v. Thurow, 203 Ill. 2d 352, 363 (2003). Here, defendant elected not to try to meet that burden. In response to the State’s argument that defendant’s argument was forfeited and plain error did not occur, defendant persisted in arguing that the issue was not forfeited. He did not argue that, assuming that the issue was forfeited, plain error occurred. Accordingly, because defendant’s issue was forfeited and because defendant elected not to try to meet his burden of establishing plain error, the appellate court’s judgment must be affirmed.
The appellate court, after finding a forfeiture, erroneously reached defendant’s issue on the basis that “forfeiture is a limitation on the parties, and not upon a reviewing court.” No. 4 — 04—0932 (unpublished order under Supreme Court Rule 23). The statement that “forfeiture is a limitation on the parties and not on the court” is not intended to be a catchall that allows reviewing courts to consider forfeited issues at will. Rather, this oft-misused and misunderstood statement has its genesis in Hux v. Raben, 38 Ill. 2d 223 (1967), in which a party argued that the appellate court lacked jurisdiction to decide the appeal on a ground that had not been raised before. This court rejected this argument, holding that Rule 341(e)(7)’s statement that issues not raised in the briefs are waived “states an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court.” (Emphasis added.) Hux, 38 Ill. 2d at 224. Reviewing courts in this state frequently drop the word “jurisdiction” and use this statement as a reason to excuse a party’s forfeiture. However, as Hux itself recognized, forfeiture in criminal cases is governed by Rule 615’s plain-error rule. Hux, 38 Ill. 2d at 224. When a court uses the phrase “forfeiture is a limitation on the parties and not on the court” as an independent basis for excusing a defendant’s forfeiture, it improperly relieves the defendant of his burden of establishing plain error.
The majority refuses to recognize defendant’s obvious forfeiture and instead reasons as follows. Quickly dispensing with the motion itself, the majority merely states that the motion mentioned defendant’s “diminished mental functioning,” asked the court to consider the record, and asked for the sentence to be reduced to six years. 231 Ill. 2d at 15. The majority then moves on to the defendant’s oral argument at the hearing on the motion to reconsider the sentence. One would think that the majority would want nothing to do with this argument since defendant at no point argued that the trial court had improperly treated a statutory mitigating factor as aggravating. Indeed, the only time defense counsel even came close to addressing this point was when he remarked:
“At the sentencing hearing the court made an observation which I — it struck me as very accurate. The court said that mental impairment, mental illness, can be a double-edged sword. And I agree with that observation, your honor.”
The importance of this comment by defense counsel cannot be overstated because the trial court’s “double-edged sword” comment is the very crux of defendant’s argument as to why he deserves a new sentencing hearing. Not only is the majority not troubled in the least by defendant’s shifting position on this issue, the majority holds that this comment is what allows us to reach the issue on appeal. The majority argues that “defendant is not asserting in this court a completely different argument from the one he raised below” because “[a]t the motion hearing, defense counsel expressly referred to the ‘double-edged’ nature of mental retardation, argued that any aggravating aspects of mental retardation should not apply to defendant, and urged the trial court to reduce defendant’s sentence.” 231 Ill. 2d at 18. The majority concludes by finding support for its analysis in two recent decisions of this court: “In circumstances such as these, where the trial court clearly had an opportunity to review the same essential claim that was later raised on appeal, this court has held that there was no forfeiture. See People v. Mohr, 228 Ill. 2d 53 (2008); People v. Coleman, 227 Ill. 2d 426, 435 (2008).” 231 Ill. 2d at 18.7
Let us now consider the errors in the majority’s analysis. First, the majority barely considers the motion defendant filed, which raised one argument: that the entirety of defendant’s mitigating evidence should have led the court to impose a lesser sentence. Defendant did not argue that the court erred in treating a statutory mitigating factor — mental retardation — as aggravating. The majority seems satisfied that the motion did raise this issue because the motion mentioned defendant’s “diminished mental functioning.” 231 Ill. 2d at 15.
The majority appears to be adopting an unprecedented approach to forfeiture analysis: the argument does not have to be the same, it merely has to relate to the same subject. The majority confirms this new analysis when it states that it will review defendant’s issue because “defendant is not asserting in this court a completely different objection from the one he raised below.” (Emphasis added.) 231 Ill. 2d at 18. Thus, since the motion mentioned “diminished mental functioning,” this preserves for review any argument that has anything to do with mental retardation. Is this really how forfeiture analysis will be conducted in the future? If a motion to reconsider mentions “drugs” or “weapons” will that preserve for review all arguments that in any way mention drugs or weapons? Would an argument that the trial court abused its discretion in its weighing of the mitigating and aggravating factors preserve for review an argument that defense counsel was ineffective for failing to introduce certain mitigating evidence? It would under the logic the majority uses above. The motion to reconsider used the term “diminished mental functioning” only in the context of arguing that the entirety of defendant’s mitigating evidence should have led the court to impose a lesser sentence.
Moreover, since when is the relevant inquiry whether the defendant is raising a completely different objection from the one he raised below?8 Apparently, the majority would find preserved for review an argument that was 99% different from the one raised in the trial court. This makes no sense because, as the majority acknowledges, the reason we require issues to be raised first in a post-sentencing motion is to give the trial court the opportunity to address the claim first and to possibly save the expense and delay of an appeal if the argument is meritorious. Reed, 177 Ill. 2d at 394. Further, “[s]uch a motion also focuses the attention of the trial court upon a defendant’s alleged errors and gives the appellate court the benefit of the trial court’s reasoned judgment on those issues.” Reed, 177 Ill. 2d at 394. Obviously, these policies cannot be vindicated unless the issue presented on appeal is the same as the one presented in the trial court. The majority seems not in the least concerned at the extent to which its analysis undermines Reed and, indeed, states that it believes that Reed’s purposes have been satisfied here. 231 Ill. 2d at 18. If that is true, perhaps the majority could cite to the portion of the record in which we are given the benefit of the trial court’s reasoned judgment on whether it had improperly treated a statutory mitigating factor as aggravating.9
The majority denies that it is implementing a new forfeiture analysis by merely requiring the issue raised in the postsentencing motion to contain some of the same words as the issue raised on appeal. The majority cites to Mohr and Coleman, and states that these cases stand for the proposition that “where the trial court clearly had an opportunity to review the same essential claim that was later raised on appeal, this court has held that there was no forfeiture.” 231 Ill 2d at 18. The majority, however, includes no discussion of Mohr and Coleman. This is no doubt because neither case offers the slightest support for the majority’s position.
In Coleman, the defendant argued both in the trial court and in the reviewing courts that his motion to suppress certain audio recordings should have been granted. The State argued forfeiture on the basis that defendant did not include in his motion the portion of his argument that this court should overturn certain appellate court precedent. This court rejected the State’s argument, noting that “the fact that [defendant] did not ask the trial court to ignore appellate court precedent is unsurprising: the decisions of our appellate court are binding on all circuit courts.” Coleman, 227 Ill. 2d at 433. Thus, Coleman stands for nothing more than the unremarkable and self-evident proposition that, before a party may ask a court to overturn precedent, it does not need to first make that request of a court that has no authority to do so.
In Mohr, the issue was not whether the issue raised in the posttrial motion needed to be the same as the issue raised on appeal but whether the issue objected to at trial needed to be the same as the one raised in the post-trial motion. The court split 6-1 on this issue. The majority held that, as long as the defendant objected to a particular instruction both at trial and in the posttrial motion, the reason for the defendant’s objections did not have to be the same: “The State essentially asks us to tailor the forfeiture rule, requiring the defendant to assert the same argument at trial and in his posttrial motion as to why an instruction was improper. We decline to do so.” Mohr, 228 Ill. 2d at 65; but see Coleman, 227 Ill. 2d at 433 (“to preserve an issue for appellate review, a defendant must both object at trial and present the same issue in a written posttrial motion” (emphasis added)). The dissent would have found the claim forfeited and subject to plain-error review. The dissent argued that the State was not asking this court to tailor the forfeiture rule but to apply the forfeiture rule. According to the dissent, the majority’s ruling eroded “the bedrock requirements that both a trial and posttrial objection are required to preserve a trial error, and that a specific objection at trial waives all other unspecified grounds that might later be raised with respect to a jury instruction.” (Emphasis in original.) Mohr, 228 Ill. 2d at 76 (Thomas, C.J., dissenting). Whatever one thinks of the Mohr dispute, at least in that case the issue was raised in the posttrial motion so the trial court was given a chance to review the issue before it was raised on appeal. In that case, we specifically noted that the issue defendant raised on appeal, although different from his trial court objection on the issue, was the same as that argued in his posttrial motion. Mohr, 228 Ill. 2d at 65.
Thus, the only support the majority can find for the proposition that the court can reach an issue on appeal as long as it is not “completely different” from the one raised in the postsentencing motion is one case in which the issue raised in the posttrial motion was identical to the one raised on appeal and another in which this court said that, before a litigant may ask a reviewing court to overturn precedent, he is not required to first make the request of a lower court that has no authority to do so. In other words, there is no precedent supporting the majority decision.
As noted above, the majority spends very little time (one sentence) on defendant’s motion to reconsider and spends the lion’s share of its forfeiture analysis attempting to show that the issue was raised at the hearing on the motion to reconsider. It should go without saying that, as the hearing’s purpose is to allow counsel to argue why the motion should be granted, it is not the place for raising entirely new issues. The majority fails to cite any authority for the proposition that a party can preserve an issue by raising it not in a motion to reconsider the sentence but at a hearing on the motion. Be that as it may, we need not dwell on that point because defendant did not raise the argument at the hearing either. The thrust of defense counsel’s argument was that the 12-year-old girl, not defendant, was the sexual predator. Defense counsel also argued that defendant is a good person and that the court should focus on defendant’s heart. Defense counsel said not one word about aggravating factors10 and made no mention of the statute that defendant claims on appeal that the trial court violated. The closest defense counsel came to saying anything at all about the subject was when he stated that the trial court’s description of mental retardation as a double-edged sword was “very accurate'', and that he agreed with it.
The majority finds that this argument at the hearing preserved defendant’s right to claim on appeal that the trial court’s characterization of mental retardation as a double-edged sword was erroneous as a matter of law and that he disagreed with it. Here is how the majority comes to that conclusion. The majority acknowledges that, when the trial court referred to mental retardation as a double-edged sword, it was referring specifically to defendant’s mental retardation (“[h]is mental illness is somewhat of a double-edged sword”). However, even though defense counsel referenced that specific statement of the trial court, what defense counsel was saying was that in general mental retardation may be both aggravating and mitigating, but that was not true of defendant’s mental retardation. The majority claims that this must have been what defense counsel was saying because an acknowledgment that defendant’s mental retardation was both aggravating and mitigating would have been contrary to defense counsel’s argument that defendant’s sentence should be reduced. It is not clear from where the majority derives the notion that a defendant may not argue that a sentence should be reduced if the defendant acknowledges that there is anything aggravating in the evidence. The argument defendant raised in his motion to reconsider the sentence was that the entirety of the mitigating evidence should have led the court to impose a lesser sentence. That argument is not undermined by a concession that defendant’s mental illness is a double-edged sword. Moreover, the majority’s characterization of defense counsel’s argument is pure invention. Nowhere in that argument did defense counsel argue that, in general, mental retardation can be both aggravating and mitigating but in this case there are no aggravating aspects of defendant’s mental retardation. Rather, defense counsel specifically stated that “he (defendant) is subject to being influenced and led down the wrong path because of his intellect.” Because of this, defense counsel argued that the court should focus more on what is in defendant’s heart. Defense counsel’s argument was not that defendant’s mental retardation was not a double-edged sword but that defendant presented sufficient mitigating evidence to entitle him to a minimum sentence.
The majority apparently does not realize that, if its characterization of defense counsel’s argument is accepted, that would prove defendant’s forfeiture. Defendant’s argument before this court is that mental retardation may not be used as a factor in aggravation. It is not defendant’s argument that it may be used in aggravation, just not in this case. As argued by defendant in his brief:
“Much like the United States Supreme Court, the Illinois legislature has recognized that mental retardation is only a factor in mitigation. The Illinois Criminal Code contains a list of 13 grounds which ‘shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment.’ The last item in section 5/5—5—3.1(a)(13) is that ‘[t]he defendant was mentally retarded as defined in [730 ILCS ... .’ [sic] 730 ILCS 5/5—5—3.1(a)(13) (West 2002). Section 5/5—1—13 defines ‘mentally retarded’ as ‘sub-average general intellectual functioning generally originating during the developmental period and associated with impairment in adaptive behavior reflected in delayed maturation or reduced learning ability or inadequate social adjustment.’ 730 ILCS 5/5—1—13 (West 2002). Significantly, mental retardation is not Usted among the 21 statutory factors in aggravation. 730 ILCS 5/5—5—3.2(a)(1—21) (West 2002).” Defendant’s brief at 35.
Defendant then references People v. Kuntu, 196 Ill. 2d 105 (2001), in which this court held that the State was not entitled to argue that the statutory mitigating factor of lack of criminal history may be used in aggravation. This court held that the sentencer did not have to place any weight on that factor, but that it could not interfere with the legislative scheme by converting it to a factor that weighs in favor of the death penalty. Kuntu, 196 Ill. 2d at 142.
Clearly, then, defendant’s argument before this court is that a court may not as a matter of law treat a statutory mitigating factor as aggravating. If, as the majority insists, the most sensible interpretation of counsel’s argument at the hearing on the motion to reconsider is that trial courts may in general treat mental retardation as aggravating, then defendant has unquestionably forfeited his right to argue on appeal that trial courts are categorically prohibited from doing so. Having taken its best shot at finding the argument not forfeited, even going so far as to advance an argument that defendant never made, the best the majority can do is to conclusively prove the forfeiture.
The most regrettable thing about the majority’s analysis is that it undermines plain-error review and guarantees that arbitrariness will rule forfeiture analysis. In this opinion, the court had the chance to ensure that forfeiture analysis will be both fair and straightforward. A court should look to see if the specific argument was made below at the proper time. If it was, address the issue. If not, hold the defendant to his burden of establishing plain error. All defendants should be held to the same standard. Instead, the majority gives the courts free rein to consider whether defendant is raising an issue on appeal that is “completely different” from the one asserted below. If the issue was not raised in the motion where it should have been, courts may consider whether the defendant essentially made that argument at the hearing on the motion. Moreover, this court no longer appears concerned, as it was in Reed, that the trial court should be given the chance to address any claim of error first and that the reviewing court is entitled to have the trial court’s reasoned judgment on issues raised in postsentencing motions. Again, remember what the majority holds today: a motion that asserts that the entirety of defendant’s mitigation evidence should have led to a shorter sentence preserves for appeal the issue that the trial court improperly treated a statutory mitigating factor as aggravating. There can be no doubt that courts will continue to find forfeiture in some cases where a defendant’s arguments are as disparate as these. There can also be no doubt that other courts will take today’s opinion as a license to find virtually any argument preserved for appeal, and courts will be able to avoid plain-error review whenever they want. We have sent a strong signed today that our forfeiture rules are not really rules at all, and that they may be disregarded whenever a reviewing court feels like it. If this court shows such a disregard for our own rules and the cases interpreting them, we will be in no position to complain when the appellate court does the same thing.
MERITS
Once the majority improperly reaches defendant’s issue, it continues to make errors and to expand the issues on appeal. The first problem in this section of the opinion is the majority’s failure to set forth a standard of review. This may be because what the majority opinion ultimately does is to confuse a discretionary weighing of sentencing factors with a question of law. Defendant frames his issue in terms of trial court discretion. According to defendant, a trial court abuses its discretion if it treats mental retardation as aggravating. The majority never explains if it agrees with defendant that abuse of discretion review is appropriate. Rather, the majority makes vague statements about “error,” leaving the reader to wonder what standard the majority is applying. If the majority is implicitly rejecting abuse of discretion review in favor of de novo review, that would seem appropriate for the issue as defendant frames it. If the trial court does not have discretion to treat statutory mitigating factors as aggravating, then it would seem that doing so would be an error of law, triggering de novo review. The problem becomes more complex, however, when the majority does not identify an error of law. The majority explicitly endorses the view that the effects of mental retardation can be aggravating as a component of future dangerousness. 231 Ill. 2d at 21. What the majority ultimately concludes is simply that there was insufficient evidence of future dangerousness. 231 Ill. 2d at 22-25. What the majority is really doing here is not identifying an error of law, but concluding that the trial court should have weighed the sentencing factors differently. If this is the majority’s analysis, then it should be proceeding under abuse of discretion review (after explaining why it is deciding an issue other than the one defendant raised). See People v. Streit, 142 Ill. 2d 13, 19 (1991). It is incumbent on the majority to set forth the appropriate standard of review, the case law supporting its decision, and whether it is reversing based on an error of law or an improper weighing of sentencing factors. Because it is not clear to me precisely what the majority is holding, I will demonstrate both that no error of law occurred and that there was no abuse of discretion in the manner in which the court weighed the sentencing factors.
At the outset, it is important to note that the majority explicitly endorses the trial court’s “double-edged sword” comment. The majority states that it recognizes that, in some cases, the effects of mental retardation can be viewed as aggravating. 231 Ill. 2d at 21. If the defendant’s mental retardation has resulted in the defendant’s lack of ability to control himself, the trial court may consider this factor in the interest of protecting the public. 231 Ill. 2d at 21. In other words, the trial court can properly consider future dangerousness as aggravating, even if mental retardation is a factor in causing the defendant’s future dangerousness.11 The majority then concludes, based on its reweighing of the evidence, that there was no evidence to support the trial court’s future-dangerousness determination. 231 Ill. 2d at 22-25.
In People v. Ward, 113, Ill. 2d 516 (1986), a case in which the defendant argued that the trial court improperly considered his protestation of innocence as an aggravating factor at sentencing, this court explained that:
“Before reversing a sentence imposed by the trial court it must be clearly evident that the sentence was improperly imposed. [Citations.] In making the determination, the reviewing court should not focus on a few words or statements of the trial court. Rather, the determination of whether or not the sentence was improper must be made by considering the entire record as a whole.” Ward, 113 Ill. 2d at 526-27.
The majority does not set forth the trial court’s comments in their entirety, and instead merely culls from those comments isolated remarks that it believes support its result. The majority does not even consider or set forth the comments that the State relies upon in arguing that the trial court did not consider defendant’s mental retardation to be an aggravating factor. I believe that when the trial court’s comments are considered in their entirety, the most reasonable inference is that the trial court did view defendant’s mental retardation as mitigating and gave defendant a shorter sentence than it would have had defendant not been mentally retarded. However, the trial court found that a longer sentence than that recommended by the parties was necessary for the protection of the public. Because I believe that the majority opinion does not give the reader a fair representation of the trial court’s reasoning, I will set forth the trial court’s sentencing comments in their entirety:
“Court has considered the factual basis given at the time of the original plea, the contents of the Presentence Investigation and the Addendum thereto, and each and every statutory factor in aggravation and mitigation.
This case cannot be viewed, I suppose, in a normal sense of a criminal conducting or committing a crime against society or against another individual because of the unique mental limitations of the defendant. But other than pleading the way this defendant pled, in other words, guilty but mentally ill, the law does not give this court discretion in determining whether the defendant should be returned to society or incarcerated.
For there is no doubt, I’m sure, that everyone in this room and anyone who would be asked to provide a collective judgment within the community would agree that a 19 or 20-year-old sexual predator of young girls should deserve a substantial sentence in prison. That may or may not be true for a 20-year-old sexual predator with an 11-year old mentality.
But, unfortunately, due to the — I guess I would argue is the past transgressions of those who serve in positions similar to mine, the legislature has found fit to mandate minimum prison sentences on offenses — for offenses such as this. As a result, this court is prohibited from imposing a sentence which would provide for the services that the defendant desperately needs, given his unique limitations. The legislature has required that the defendant be placed in prison. And although there are services provided in prison, they are woefully inadequate to deal with the problems this defendant has. And the result, as Mr. Bernard! has indicated, this case demonstrates at least one, if not more than, the complete, utter failure of the criminal justice system to deal with problems such as this.
As a result of this court’s belief that the Department of Corrections will not provide the defendant with the services that he needs adequately, this court must impose a sentence which will protect the public from further acts by this defendant. It is with no pleasure and it’s with a great deal of sympathy for the family of this defendant, because for the life of me I can’t imagine what it would be like sitting in their chairs this afternoon.
I feel compelled, I suppose, it wasn’t part of my notes, to address a portion of the argument that was made by Mr. Bernard! concerning the collective judgment of the community. And we have heard from numerous members of the community here, relatives and friends and coworkers and teachers and social workers, all of which who are acquainted one way or another with the defendant. But we have not heard from those unnamed and unfamiliar citizens of our community who will only know Blake Heider as a sexual predator, who will only know this man as a person who commits crimes against young people. And I suppose I beg to differ with Mr. Bernard! in that respect, because I can’t imagine that a community, our communities in particular, would condone the free movement of an individual such as Blake with all his problems, whether they be inherited or otherwise, into the community.
His mental illness is somewhat of a double-edged sword. On one hand, it instills a great deal of sympathy and compassion, as Mr. Bernardi stated in his beginning remarks. And the system for which we work does not afford those types of individuals a great deal of consideration. But it also instills a great deal of fear in the community because, as demonstrated by this particular defendant, insistence by his parents, insistence by [D.R.’s] parents, insistence by this court in ordering — issuing orders of protection, did not — and I am sure with each of those instances an explanation was — accompanied those discussions of the illegal nature of these contacts, but none of those things were successful at keeping this young man away from this young girl.
Mr. Heider had more than ample opportunity throughout the course of this case to demonstrate his ability to control himself. He did not do so. And that should terrify the public.
Sentence of the court is ten years Department of Corrections.”
When the trial court’s comments are viewed in their entirety, it is clear to me that the trial court viewed defendant’s mental retardation as mitigating. The court stated that ordinarily a 19- or 20-year-old sexual predator of young girls should deserve a substantial sentence in prison, but that this may or may not be true for a 20-year-old sexual predator with an 11-year-old mentality. The court further explained that, because of the “unique mental limitations” of this defendant, this case could not be viewed in a “normal sense of a criminal conducting a crime against society or against another individual.” The court found that defendant’s mental limitations instilled “a great deal of sympathy and compassion.” Nevertheless, the court found that a sentence greater than that recommended by the parties was necessary for the protection of the public. The court spelled out its reasons for this belief: “insistence by [defendant’s] parents, insistence by [D.R.’s] parents, insistence by [the trial court] in ordering — issuing orders of protection *** none of those things were successful at keeping this young man away from this girl.” Moreover, defendant had been repeatedly warned of the illegal nature of his actions. By making the “double-edged sword” comment — the comment that defense counsel would later describe as “very accurate” — the court recognized that defendant’s mental retardation was a factor in his inability to stay away from the victim. But the court still believed that protection of the public required a 10-year sentence.
The primary concern expressed by the trial court was protection of the public from a defendant who, despite repeated warnings and an order of protection, could not keep away from a 12-year-old girl whom he had sexually abused. As the State points out, an essential but unstated component of defendant’s claim that the trial court considered his mental retardation as an aggravating factor is a demonstration that, were it not for his mental retardation, the trial court would have imposed a sentence of less than 10 years. Not surprisingly, the majority simply ignores this argument, because it would be impossible to conclude from the trial court’s remarks that, had defendant simply been a 19-year-old with no mental limitations who pleaded guilty to predatory criminal sexual assault against a 12-year-old girl, it would have given him a sentence of less than 10 years.12 This is confirmed by the trial court’s remarks that the collective judgment of the community is that a 19- or 20-year-old sexual predator of young girls is deserving of a substantial prison sentence, but that this may or not be true of a 19-year-old with an 11-year-old mentality.
Clearly, no error of law occurred. The majority agrees that future dangerousness is a legitimate factor in aggravation, even if mental retardation is a component of a defendant’s future dangerousness, and there is no evidence that the trial court considered anything aggravating about defendant’s mental retardation except as it related to future dangerousness.
I also do not find an abuse of discretion in the manner in which the trial court weighed the sentencing factors. It is well settled that the trial court is the proper forum to determine a sentence and that the trial court’s sentencing decision is entitled to great deference and weight. People v. Latona, 184 Ill. 2d 260, 272 (1998). When a reviewing court examines the propriety of a sentence, it must proceed with great caution, and it may not substitute its judgment for that of the trial court simply because it would have weighed the factors differently. Streit, 142 Ill. 2d at 19. When mitigating evidence is before the court, it is presumed that the trial court considered it, absent some indication to the contrary other than the sentence itself. People v. Thompson, 222 Ill. 2d 1, 45 (2006). The trial court is not bound by the State’s sentencing recommendation. Streit, 142 Ill. 2d at 21-22. Moreover, neither the existence of mitigating factors (see People v. Garibay, 366 Ill. App. 3d 1103, 1109 (2006)) nor the absence of aggravating factors (see People v. Redmond, 265 Ill. App. 3d 292, 307 (1994)) obligates the trial court to impose the minimum sentence. We will not reverse a sentence unless it represents an abuse of discretion. People v. Lantz, 186 Ill. 2d 243, 261 (1999). A trial court abuses its sentencing discretion when the penalty imposed is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense. People v. Stacey, 193 Ill. 2d 203, 210 (2000).
I can find no abuse of discretion in the manner in which the trial court arrived at its sentence. Defendant committed a very serious offense for which the legislature has determined that a maximum sentence of 30 years’ imprisonment is appropriate. The majority is simply incorrect that there was no evidence to support the trial court’s future-dangerousness finding. Defendant’s own evidence showed that he felt more comfortable with and spent more time with minors who were closer to his mental age than to his chronological age. According to the principal at defendant’s junior/senior high school, defendant’s friends were much younger students who enjoyed spending time with defendant because he was older and had a car. Defendant was charged with three counts of predatory criminal sexual assault against a 12-year-old girl, D.R, and pleaded guilty to one of the counts. The victim’s descriptions of the three instances of sexual conduct were before the trial court at sentencing. In D.R.’s statement, she explains that, on the first occasion, defendant reached into D.R.’s pants and moved his fingers up and down inside her vagina. D.R. stated that she was not expecting defendant to do this and it made her feel scared. On the second occasion, defendant had D.R. in his car, and he asked her if she wanted to “give him head.” D.R. explained that she did not know what to say to defendant, and that she did not know if she was ready for this. Defendant kept repeating, “it’s up to you,” and D.R. finally said, “o.k.” D.R. explained what happened next:
“Then he started unzipping his pants. *** Then he took my head and put it down to his penis. *** He just pushed me down. *** I tried to get up, but *** his hands were still
there and I tried to get up and then he finally let go.” When asked how this made her feel, D.R. explained, “I was kind of scared a little after that, too.” On a third occasion, defendant again placed his fingers in D.R.’s vagina. Defendant was warned to stay away from D.R. by his own parents and by D.R’s parents, and the court ultimately entered an order of protection against defendant. Defendant met with D.R. again while the order of protection was in effect and pleaded guilty to violating the order.
Given this evidence, I fail to see how the majority could possibly conclude that there is no evidence supporting the trial court’s determination that protection of the public was necessary. Here, the fact that defendant violated a restraining order prohibiting him from having contact with the minor that he had sexually abused sufficiently supports the trial court’s determination. Moreover, defense counsel expressly conceded at the hearing on the motion to reconsider that defendant “is subject to being influenced and led down the wrong path because of his intellect.”
The majority objects to the trial court’s description of defendant as a predator and argues that it was the 12-year-old victim who pursued defendant. There are two problems with this contention. First, the name of the offense that defendant pleaded guilty to is “predatory criminal sexual assault of a child.” 720 ILCS 5/12—14.1 (West 2006). Whatever preconceived notions the majority may have of the meaning of the word “predator,” the fact is that Illinois law defines a person who commits this offense as a predator. Thus, I fail to see how we can fault the trial court for believing that the community at large would view someone who pled guilty to “predatory criminal sexual assault of a child” as a predator. Much more importantly, however, although the majority might be correct that D.R. pursued a relationship with defendant, there was evidence before the trial court showing that it was defendant who pursued the sexual and criminal aspects of the relationship. In D.R.’s statement, she said that she was not expecting defendant to place his fingers in her vagina and that this scared her. Her statement further shows that defendant goaded her into performing oral sex on him and that he forcibly held her head down on his penis when she tried to get up. D.R.’s statement renders unobjectionable the trial court’s use of the term “predator.”
The majority also claims that there is no evidence to support the trial court’s conclusion that members of the public might be terrified of defendant. The trial court’s comments were just a matter of common sense. Consider how a parent in the community would feel knowing that defendant was hanging around children, that he had driven one of them around in his car, placed his fingers in her vagina and scared her, goaded her into performing oral sex on him and forcibly held her head down on his penis, and then violated a restraining order requiring him to stay away from her. Are my colleagues seriously arguing that it was improper for the trial court to consider that a member of the public, particularly a parent, might find the above facts frightening or that the community was in need of protection?
Finally, the majority misses the point when it holds that defendant’s violation of the restraining order was entitled to no weight because the contact was instigated by the victim and the meeting took place in a public park. The point of defendant’s violation of the restraining order is that it showed that all efforts to keep defendant away from the minor whom he had abused were futile. This finding was proper under the very law that the majority establishes. The majority specifically holds that mental retardation may be considered as aggravating if it leads to a lack of control on defendant’s part. 231 Ill. 2d at 21. The evidence unquestionably supported the trial court’s finding that defendant had not shown an ability to control himself and that all efforts to keep him away from the victim had failed. Moreover, the last time that the victim had pursued a relationship with defendant, defendant turned it into a criminal sexual relationship. The trial court could rightly be concerned that nothing was going to keep defendant away from the victim and that there was a danger of more abuse occurring. One could even conclude that such a recurrence was likely, given defense counsel’s concession that defendant “is subject to being influenced and led down the wrong path because of his intellect.”
My colleagues have undoubtedly demonstrated that there is more than one way to look at this evidence. They have also ably demonstrated that they would have weighed the evidence differently than did the trial court and that they would have imposed a lesser sentence on defendant. This is no basis upon which to reverse a sentence. Streit, 142 Ill. 2d at 19. What my colleagues have not done is to demonstrate that the trial court’s decision was an abuse of discretion. The trial court clearly gave mitigating weight to defendant’s mental retardation, but believed that a sentence longer than that recommended by the parties was necessary for the protection of the public. The sentence the trial court arrived at was 20 years below the maximum and only 4 years above the minimum. There was evidence supporting the trial court’s decision, and there is no basis for this court to interfere with this sentence.
CONCLUSION
Today’s opinion will send the unfortunate message that results matter more than the law. A straightforward application of well-settled law leads to the unmistakable conclusion that the appellate court’s judgment must be affirmed. Instead, the majority reverses and repeatedly ignores basic rules of appellate procedure along the way. Defendant clearly forfeited his issue, and this court should require him to meet his burden of establishing plain error. The forfeiture analysis the majority uses here is unprecedented and severely undermines the plain-error rule. Moreover, the forfeiture analysis the majority uses is based on an argument defendant never even made. When the majority reaches the merits of the issue, it once again goes beyond what the defendant argued and decides an issue other than the one defendant raised. I would hold that defendant forfeited the only issue he is raising on appeal, and I would affirm the appellate court’s decision.
JUSTICES CARMAN and KARMEIER join in this dissent.
The majority’s reasons for finding that the issue is not forfeited are not those advanced by defendant. It is not clear why the majority is making arguments for defendant instead of addressing the arguments defendant actually made.
It is worth noting that, even if the majority’s position on forfeiture were correct, that would still not help the majority here. An argument that the trial court improperly treated a statutory mitigating factor as aggravating is, in fact, completely different from an argument that the entirety of defendant’s mitigating evidence should have led to a lesser sentence. The first contention raises an error of law; the second attacks the manner in which the trial court weighed the evidence in arriving at its sentence.
If defense counsel did indeed make this argument, it was far too oblique for the trial court to discern it. At the close of defense counsel’s argument, the trial court commented that defense counsel had just rehashed points that he had already made and did not point out anything that the court had overlooked or misapprehended. This comment obviously would make no sense if the trial court had understood defense counsel to be arguing that the trial court had improperly treated a statutory mitigating factor as aggravating.
No variation of the word “aggravate” appears anywhere in defense counsel’s argument. Perhaps this is why the majority is forced to claim that “defense counsel argued, in essence, that any aggravating aspects of mental retardation should not apply to defendant.” (Emphasis added.) 231 Ill. 2d at 16.
This conclusion is supported by our case law. See, e.g., People v. Madej, 177 Ill. 2d 116, 139 (1997); People v. Tenner, 175 Ill. 2d 372, 382 (1997); People v. Cox, 82 Ill. 2d 268, 277-79 (1980).
At oral argument, defense counsel did make this argument. Defense counsel made the remarkable statement that the trial court gave defendant “four extra years” for mental retardation. In other words, according to defense counsel, the most reasonable construction of the trial court’s comments is that the trial court determined that a minimum sentence of six years was sufficient for the predatory criminal sexual assault of a 12-year-old girl, but then decided to tack on four more years because defendant is mentally retarded.