People v. Woods, 2018 IL App (1st) 153323 (December). Episode 581 (Duration 8:55)
Defendant was ordered to cooperate with the PSI and the judge turned around and used what he said against him.
Charges & Sentence
Courtney Woods was found guilty after a bench trial of two counts of armed robbery (720 ILCS 5/18-2(a)(2), (3)) and sentenced to concurrent terms of 34 years’ imprisonment.
Facts
In response to Mr. Woods’s motion for a new trial, the trial court reconsidered its ruling and found Mr. Woods not guilty of the three counts of attempted murder. Mr. Woods was sentenced on two counts of armed robbery, one premised on Mr. Woods’s possession of a firearm and the other on his personal discharge of a firearm.
The trial court then ordered a PSI report.
The initial PSI report contained no information beyond a recitation of Mr. Woods’s criminal history and the official version of the offense. The “Summary” section stated that defendant “respectfully declined to answer any questions pertaining to his investigation.”
Issue
Defendant argues his fifth amendment right against self-incrimination was violated when the trial court ordered him to participate in a presentence investigation (PSI) and then used the information that he provided about his prior gang affiliation and educational background against him in aggravation at sentencing.
Get The PSI Done
The trial court ordered him to participate by speaking with the investigator. The information that he told the investigator was then used against him to increase his sentence.
At a hearing after the return of the PSI report, the following exchange occurred:
“THE COURT: We received information that defendant did not talk to probation for the PSI; is that correct?
[DEFENSE ATTORNEY]: Yes, your Honor.THE COURT: You need to speak with them. I’ve ordered you to speak with them. You need to speak with them. Understood?
[MR. WOODS]: (No verbal response.)THE COURT: We need to continue to get the presentence investigative report.”
The PSI
Defendant then completed an interview for a PSI, and a new PSI report was filed with the trial court. This revised PSI report included Defendant’s statements regarding his social and educational background.
The investigator reported that defendant “admitted” he was a former member of the Mafia Insane Vice Lords street gang. He joined the gang at age 13 but left at age 24 because he wanted to be a positive role model for his younger half-brothers.
Defendant told the investigator he had a good childhood and that his “whole world literally collapsed” when his mother, who was his “best friend,” died of breast cancer in 2006. That is when defendant started “running the streets” and getting into trouble.
Defendant completed eighth grade but then dropped out because “his heart wasn’t in it.”
Questions About The Crime
In the section of the report titled “Defendant’s Version of the Offense,” the investigator noted that Defendant “did not wish to comment on the facts of this case upon the advice of his attorney.”
His Criminal History
The report set forth his criminal history, including that he received probation for a 2006 AUUW conviction, which was terminated unsatisfactorily, and consecutive three-year terms of imprisonment in 2007 for robbery and AUUW.
How It Was Used Against Him
With respect to school, the trial court noted:
“You said your heart wasn’t into it. What does that mean? You’re supposed to go to school. You need the school to be a better person, to get a job, to be able to support yourself and your family, instead of going to the games and sticking up people and taking their money and taking what they’ve worked hard for.”
The trial court went on to note, from the PSI report, that defendant had “more than other students do, and you just dropped out,” that he
“could have had the, you know, help of the teammates and the basketball team and your coach, but instead, you go to the streets and hang out with the gang members.”
It reiterated that “gangs and guns” was his repeated choice.
For example, Defendant reported that he was a former gang member who had quit because he “wanted to be a positive role model for his younger half-brothers.” The trial court did not mention this, but instead referred repeatedly to his membership in “gangs.”
The Fifth Amendment
The fifth amendment commands that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V.
The fifth amendment applies to the states by virtue of the fourteenth amendment (People v. Hunt, 2012 IL 111089, ¶ 23; U.S. Const., amend. XIV), and its protection against self-incrimination applies to sentencing proceedings (Mitchell v. United States, 526 U.S. 314, 328-29 (1999); People v. Maggio, 2017 IL App (4th) 150287, ¶ 48). There is no dispute that defendant had a fifth amendment right not to be compelled to provide information during the PSI that could be used against him at sentencing.
State’s Argument
The State relies on our supreme court’s decisions in People v. Hampton, 149 Ill. 2d 71 (1992), and People v. Hillier, 237 Ill. 2d 539 (2010) to argue that his failure to raise this issue with the trial court results in a forfeiture that precludes review. See also People v. Ashford, 121 Ill. 2d 55, 80 (1988).
The issue in Hampton and Hillier was whether the court should consider a claim that a defendant was not given Miranda warnings, where no objection had been made and the record was unclear as to whether the defendant had, in fact, been given Miranda warnings.
Judge Made Error
In contrast to those cases, this case represents a direct assault on Mr. Woods’s fifth amendment rights, rather than a possible failure to invoke a “prophylactic” warning.
The error here was made more difficult to correct because of the direct role played by the trial court. A less rigid application of the rule of forfeiture should prevail where the basis for the objection is the conduct of the trial judge. Sprinkle, 27 Ill. 2d at 401.
Here, defendant was specifically told by the judge that he had to talk to pretrial services and then the judge used that information to increase his sentence. In our view, this error should be reviewed both because it is a direct infringement of a constitutional right, and because that infringement came from the court.
We are sympathetic to the trial court’s premise that, generally speaking, it is helpful to a defendant, as well as to the court, to have some understanding of the defendant’s background at the time of sentencing. This context can often help mitigate the trial court’s view of the criminal conduct for which the defendant has been convicted.
Unfortunately in this case, the trial court appears to have viewed as only negative, some of the information that could have been used as mitigation.
No Doubt It Was Used Against Him
The State does not dispute that defendant had a fifth amendment right not to be compelled to provide information that was used against him at sentencing. Nor does the State dispute that the information he provided was, in fact, used against him.
The first PSI report said nothing about gang involvement or when defendant stopped attending school. There was also no testimony at trial about the offense being gang-related. The PSI report that was provided to the trial court after he was required to participate reflects that defendant told the PSI investigator that he had been affiliated with the Mafia Insane Vice Lords and that he dropped out of school after the 10th grade.
The State emphasized these facts and the trial court made multiple references to his gang involvement, concluding that defendant kept returning to “gangs and guns” throughout his life. The trial court also chastised Mr. Woods for dropping out of school.
The sentence imposed was eight years longer than the lengthy minimum sentence that this conviction required.
Findings
We find that the trial court plainly erred by insisting that defendant cooperate with the PSI and then using this information against him as reflected in the repeated reference to his past gang participation and educational history.
This error deprived defendant of a fair sentencing hearing and therefore requires us to vacate the sentence.
There is no dispute that the record shows that he initially refused to participate in the PSI, then was ordered to do so by the trial court, and then provided information that was used against him at sentencing.
What Normally Happens
The fact that defendant may have been advised by counsel that he did not have to provide information about the specifics of the charged crime or that a probation officer may have “Mirandized” him, in no way diminishes the fact that defendant was ordered by the trial court to surrender his fifth amendment rights.
Holding
We agree that the remedy here is to remand for resentencing to the presiding judge of the criminal division so that defendant can be resentenced before a new judge with a new PSI. People v. Heider, 231 Ill 2d 1, 25 (2008) (the best way to remove any suggestion of unfairness is to have the case assigned to a new judge).