2021 IL App (1st) 191109-U

No. 1-19-1109 

Order filed April 19, 2021 

First Division

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 DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

JOSEPH RUTLEDGE, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Cook County. 

No. 17 CR 04323

Honorable 

Angela Munari Petrone, 

Judge, presiding. 

JUSTICE PIERCE delivered the judgment of the court.

Justices Hyman and Coghlan concurred in the judgment. 

ORDER

¶ 1 Held: Defendant’s sentence is affirmed over his contentions that it is excessive and that 

the trial court improperly considered the inherent factor of dangerousness of drug 

use in aggravation. 

¶ 2 Following a 2019 jury trial, defendant Joseph Rutledge was found guilty of delivery of less 

than one gram of heroin (720 ILCS 570/401(d)(i) (West 2016)) and, based on his criminal history, 

sentenced to a Class-X term of 12 years in prison. On appeal, defendant contends that his sentence 

is excessive and the result of the trial court improperly considering the dangerousness of drug use, 
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a factor inherent in the offense of delivery of a controlled substance. For the reasons that follow, 

we affirm.

¶ 3 Defendant’s conviction arose from the events of February 24, 2017. Following his arrest, 

defendant was charged by indictment with two counts of delivery of less than one gram of heroin. 

Prior to trial, the State nol-prossed the count alleging that the delivery occurred within 1000 feet 

of a church. 

¶ 4 At trial, Chicago police sergeant Melvin Ector testified that on the evening in question, he 

was working as an undercover “buy officer” as part of a team of about 10 officers, conducting a 

narcotics investigation in the area of 79th Street and Phillips Avenue. About 6:50 p.m., Ector

encountered defendant, whom he identified in court. Ector asked defendant if he knew where he 

could get “defense,” which Ector explained was street terminology for heroin. 

¶ 5 Defendant asked Ector how many bags he wanted, to which Ector replied two. Ector then 

followed defendant northbound and let defendant use his phone. After defendant completed a 

phone call, he told Ector to follow him to Phillips Avenue, where they would meet “the guy with 

the ‘defense.’ ” As they walked through an alley, Ector gave defendant a prerecorded $20 bill. 

¶ 6 Defendant told Ector to wait and then walked to a group at the corner. Defendant gave the 

$20 bill to a man and, in exchange, received two small objects. Ector approached defendant, and 

as they walked down the street together, defendant gave Ector two clear bags marked with ice 

cream cones and containing white powder. 

¶ 7 Ector gave a prearranged signal to the surveillance officers on his team. He then walked to 

79th Street, where he was picked up by a surveillance officer. Ector learned that enforcement 
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officers had stopped someone based on his signal of a positive narcotics transaction. He was driven 

to a nearby location, where he identified defendant as the man who sold him suspect heroin. 

¶ 8 Ector identified People’s Exhibit 1 as an inventory bag containing the two plastic bags 

marked with ice cream cones that he had received from defendant. He identified People’s Exhibit 

2 as a disk containing surveillance footage of his interactions with defendant. The surveillance 

footage was taken from a covert vehicle. The video footage, which contained three files, was 

played for the jury while Ector narrated the events it depicted.

¶ 9 Ector testified that the first file showed him approaching defendant, engaging in 

conversation with him, and then walking down a sidewalk with him. The second file depicted 

Ector standing on a sidewalk alone, waiting while defendant talked with the group on the corner. 

The third file depicted Ector and defendant walking along a sidewalk together, behind parked cars. 

Ector explained that while they were behind a parked car, out of view of the camera, defendant 

handed him the suspect heroin. The video footage, which is included in the record on appeal, 

depicts Ector’s interactions with defendant as described in Ector’s testimony. 

¶ 10 Chicago police officer Edwin Utreras testified that he followed Ector in a car and saw him 

speaking with defendant, whom he identified in court. After Ector and defendant walked through 

an alley, Utreras saw Ector give a prearranged signal that a positive transaction had occurred. 

Shortly thereafter, Utreras picked up Ector nearby. Ector radioed a description of the offenders to 

the rest of the team and then handed Utreras two bags marked with ice cream cones containing 

suspect heroin. Utreras inventoried the bags when he returned to the station. 
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¶ 11 Daniel Beerman, a forensic scientist, testified that he received People’s Exhibit 1, a bag 

containing two Ziploc bags of powder, in a heat-sealed condition. He tested the contents of the two 

bags and determined that they contained 0.3 grams of heroin. 

¶ 12 Defendant made a motion for a directed verdict, which the trial court denied. Defendant 

did not testify or present evidence. The jury found defendant guilty. 

¶ 13 Defense counsel filed a posttrial motion. Thereafter, defendant elected to proceed pro se

and filed a Krankel motion, alleging that his trial counsel was ineffective. Following an initial 

inquiry, the trial court denied the motion. Counsel was reappointed and refiled the motion for a 

new trial, which the trial court denied. 

¶ 14 At sentencing, the State indicated that an amendment to the presentence investigation (PSI) 

report was needed. The State then reviewed defendant’s criminal history, which, as detailed in the 

PSI report, was comprised of the following: a 2015 conviction for domestic battery, for which 

defendant received a sentence of 364 days; a 2015 conviction for criminal trespass to land, for 

which he received a sentence of 10 days; a 2014 conviction for “resisting / obstructing peace officer 

/ correctional emp,” for which he received a sentence of 9 days; a 2013 conviction for theft, for 

which he received a sentence of 20 days; a 2013 conviction for possession of cannabis, for which 

he received a sentence of 2 days; a 2004 conviction for “home invasion / armed / force / residential 

burglary / aggravated domestic battery / agg battery / great bodily harm domestic battery / bodily 

harm,” for which he received sentences of 10 years (“on great bodily harm”) and 15 years; a 2002 

conviction for possession of a controlled substance, for which he received a sentence of 5 years; a 

2000 conviction for indecent exposure urination, for which he received a sentence of 6 months of 

conditional discharge; a 2000 conviction for domestic battery, for which he received a sentence of 
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72 days; a 1997 conviction for possession of a controlled substance, for which he received a 

sentence of 6 years; a 1995 conviction for robbery, for which he received a sentence of 5 years; a 

1991 conviction for robbery and aggravated battery, for which he received a sentence of 5 years; 

and a 1991 conviction for vehicular invasion, for which he received a sentence of 5 years. 

¶ 15 The PSI report indicated that defendant had a good relationship with his parents and 

siblings and had an “ok” childhood. He denied a history of abuse or neglect. He reported that his 

mother died when he was 14 years old, after which he moved in with his oldest sister and the 

Department of Children and Family Services became involved. Defendant never married but has 

eight children, with whom he has a “wonderful” relationship when he is actually around them. 

¶ 16 Defendant attended school until tenth grade, when he was incarcerated, and then earned a 

GED. Prior to his most recent arrest, he worked as a sales associate at Boost Mobile for three years. 

Defendant admitted to being a gang member and stated most of his friends were affiliated with 

gangs. He reported being in great overall physical health. He stated he was diagnosed with 

schizophrenia in 1992 but was never prescribed any psychotropic medication. 

¶ 17 Defendant reported that he first tried alcohol around age 13. He consumed about two sixpacks of beer per week but never had any alcohol-related social, family, or work problems. He

began using heroin at age 19. He would use heroin every day before he was incarcerated, and his 

family members were concerned about his drug usage. Defendant related that his drug use has 

caused problems with his family relationships, romantic relationships, and employment, and has 

taken a toll on his memory and eyesight. He received drug treatment in prison but could not 

remember the exact timing. 
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¶ 18 In aggravation, the State argued that defendant’s criminal history exhibited violence and 

an inability or unwillingness to comply with the law. The State further argued that a sentence “far 

above” the minimum was necessary to protect the public. 

¶ 19 In mitigation, defense counsel argued that the instant offense was nonviolent. Counsel 

highlighted that defendant had substantial ties to his family and community, had obtained a GED, 

and had been employed. Counsel stated that defendant’s major impediment to rehabilitation was 

his history of drug abuse. However, counsel noted that defendant had received drug treatment in 

the past and stated that he “would like additional drug treatment.” 

¶ 20 In announcing sentence, the trial court stated that it had reviewed the PSI report. It 

explained that due to defendant’s criminal history, Class-X sentencing was mandatory. The court 

briefly restated the facts of the case and said it was considering those facts and defendant’s criminal 

background as aggravation. The court recited a summary of defendant’s prior convictions and 

noted that defendant’s criminal background was “almost continuous” and included “numerous 

crimes of violence,” as well as “more minor crime[s]” that showed his unwillingness “to abide by 

society.”

¶ 21 In mitigation, the trial court considered that defendant was employed at times when he was 

not incarcerated and that he had obtained a GED. The court also noted that defendant had a good 

relationship with his family, had been diagnosed with schizophrenia, and had been using heroin 

since he was 19 years old. 

¶ 22 The court addressed the statutory factors in aggravation and mitigation, commencing its 

remarks on those factors as follows: 
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“In considering further the statutory factors in aggravation and mitigation, in 

aggravation, the conduct caused or threatened serious harm, I agree with you this isn’t a 

violent offense in the terms of no one was shot, no one was stabbed. This isn’t a different 

offense he’s been convicted of in the past. This isn’t another robbery, another aggravated 

battery, or vehicular invasion. However, heroin does cause harm to other people in society, 

and to that extent I will say his conduct did threaten harm.”

The court then reviewed other statutory factors, finding that defendant had a substantial history of 

criminal activity, much of it violent and “almost continuous.” The court also found that the 

sentence it was imposing was necessary to deter others, and that imprisonment would cause 

hardship to defendant’s dependents. 

¶ 23 The court concluded with the following remarks:

“The sentencing range here is 6 to 30 years. I will take into consideration [the] 

mitigation you have presented. I do not believe that a term in the higher range is 

appropriate. I don’t believe a term in the lower range is appropriate. Certainly there is a lot 

of criminal activity here, but I will take into consideration the circumstances of this crime 

that I will not characterize it as a violent crime as you said, Counsel. I believe an 

appropriate sentence is 12 years in the Illinois Department of Corrections[.]” 

¶ 24 Defendant filed a motion to reconsider sentence, which the trial court denied. 

¶ 25 On appeal, defendant contends that his sentence is excessive.

¶ 26 A trial court has broad discretionary powers in imposing a sentence, and its sentencing 

decisions are entitled to great deference on review. People v. Alexander, 239 Ill. 2d 205, 212 

(2010). Sentencing decisions are entitled to great deference on appeal because the trial court is in 
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a superior position to fashion an appropriate sentence based on firsthand consideration of the 

relevant sentencing factors, including the defendant’s credibility, demeanor, moral character, 

mentality, social environment, habits, and age. People v. Fern, 189 Ill. 2d 48, 53 (1999). Although 

the trial court’s consideration of mitigating factors is required, it has no obligation to recite each 

factor and the weight it is given. People v. Wilson, 2016 IL App (1st) 141063, ¶ 11. Absent some 

indication to the contrary, other than the sentence itself, we presume the trial court properly 

considered all relevant mitigating factors presented. People v. Sauseda, 2016 IL App (1st) 140134, 

¶ 19.

¶ 27 In reviewing a defendant’s sentence, this court will not reweigh the aggravating and 

mitigating factors and substitute our judgment for that of the trial court merely because we would 

have weighed these factors differently. People v. Busse, 2016 IL App (1st) 142941, ¶ 20. A 

sentencing determination will not be disturbed absent an abuse of discretion. People v. Stacey, 193 

Ill. 2d 203, 209-10 (2000). Sentences that fall within the permissible statutory range may be 

deemed to be the result of an abuse of discretion only where they are “greatly at variance with the 

spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.” Id. at 

210. 

¶ 28 Here, we find that the trial court did not abuse its discretion in sentencing defendant to 12 

years’ imprisonment. Due to his criminal background, defendant was subject to Class X 

sentencing, with an applicable sentencing range of 6 to 30 years. 730 ILCS 5/5-4.5-25(a), 5-4.5-

95(b) (West 2018). Because the 12-year sentence imposed in this case was within the statutory 

sentencing range, it is presumed proper. People v. Knox, 2014 IL App (1st) 120349, ¶ 46.
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¶ 29 Defendant does not dispute that his sentence fell within the permissible sentencing range 

and is presumed proper. Rather, he argues that his 12-year sentence was unwarranted to punish his 

“run-of-the-mill” narcotics sale of a small amount of heroin, and was not necessary to deter others. 

He asserts that the court, in imposing sentence, overemphasized his criminal history, as there was 

a long period between 2004 and 2013 where he had no convictions and his last felony conviction, 

in 2004, was 13 years before he committed the instant offense. Defendant maintains that the trial 

court did not give enough weight in mitigation to the factors that he had steady employment despite 

his heroin addiction and mental illness, and had earned his GED while incarcerated. 

¶ 30 The record shows that the trial court was well aware of the mitigating factors identified by 

defendant on appeal. All of these mitigating factors—defendant’s employment history, heroin 

addiction, and mental illness—were included in the PSI report, which the trial court stated it had 

reviewed prior to imposing sentence. In addition, defense counsel highlighted in mitigation that 

defendant had substantial ties to his family and community, had obtained a GED, and had been 

employed. Counsel also noted that while defendant had a history of drug abuse, he had received 

drug treatment in the past and expressed interest in additional drug treatment. Finally, while we 

may presume that the trial court properly considered all relevant mitigating factors presented 

(Sauseda, 2016 IL App (1st) 140134, ¶ 19), here, the trial court expressly noted that it considered

defendant’s employment, attainment of a GED, relationship with his family, diagnosis of 

schizophrenia, and history of drug abuse. 

¶ 31 In addition to considering the evidence in mitigation, the trial court also made clear at 

sentencing that it was disturbed by defendant’s criminal history, especially because it was “almost 

continuous” and included “numerous crimes of violence,” as well as “more minor crime[s]” that 
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showed his unwillingness “to abide by society.” A defendant’s criminal history is a proper 

aggravating sentencing factor (730 ILCS 5/5-5-3.2(a)(3) (West 2018)) and criminal history, alone, 

may “warrant sentences substantially above the minimum” (People v. Evangelista, 393 Ill. App. 

3d 395, 399 (2009)). In this case, defendant maintains that it was a mischaracterization for the trial 

court to call his criminal history “almost continuous” because a number of years had elapsed 

between his convictions in 2004 and 2013. However, the PSI report reveals that in 2004, defendant 

was sentenced to a term of 15 years in prison. We agree with the State that defendant’s 

incarceration accounts for the majority of the time lapse between his 2004 and 2013 convictions, 

even if, arguendo, he only served 50% of his time. Moreover, while defendant is correct that his 

last felony conviction was in 2004, 13 years before he committed the instant offense, there was 

nothing improper in the trial court considering his multiple, subsequent misdemeanor convictions 

in aggravation. 

¶ 32 Given that all of the mitigating factors defendant raises on appeal were discussed in 

defendant’s PSI report and defense counsel’s arguments in mitigation, defendant essentially asks 

us to reweigh the sentencing factors and substitute our judgment for that of the trial court. As noted 

above, this we cannot do. See Busse, 2016 IL App (1st) 142941, ¶ 20 (a reviewing court must not 

substitute its judgment for that of the trial court merely because it would have weighed these factors 

differently). 

¶ 33 Defendant next contends that the trial court erred in considering in aggravation the inherent 

factor of heroin’s danger to society. He asserts that the fact that heroin harms people is applicable 

to all heroin sales, and there was nothing particular about this sale that differentiated it from others. 

Defendant argues that the legislature already considered the implicit harm resulting from the sale 
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of heroin when classifying the offense as a Class 2 felony and, therefore, the statutory aggravation 

factor of causing or threatening serious harm was inapplicable to his offense. He asserts that it 

cannot be determined from the record that the weight the trial court placed on this improper factor 

did not lead to a greater sentence. As such, he maintains that his sentence must be vacated. 

¶ 34 At sentencing, a trial court may not consider as aggravating evidence a factor that is implicit 

in the offense for which the defendant has been convicted. People v. Valadovinos, 2014 IL App 

(1st) 130076, ¶ 47. However, because sentences vary in accordance with the circumstances of the 

particular offense, this rule is not meant to be applied rigidly. Id. When determining whether a trial 

court considered improper factors, we focus on the entire record, rather than on a few words or 

statements made by the court at sentencing. Id. Moreover, even if the trial court considered an 

improper factor, a sentence will be affirmed if we can determine from the record that the weight 

placed on that factor was so insignificant that it did not lead to a greater sentence. People v. Heider, 

231 Ill. 2d 1, 21 (2008); People v. Grant, 2019 IL App (3d) 170185, ¶ 28. Whether the trial court 

relied on an improper factor in imposing a sentence is a question of law subject to de novo review.

Grant, 2019 IL App (3d) 170185, ¶ 28. 

¶ 35 In this court, defendant contends that the trial court improperly considered a factor inherent 

in the delivery of heroin when it stated, “[H]eroin does cause harm to other people in society and 

to that extent I will say his conduct did threaten harm.” The State counters that this remark was 

not improper, but rather, reflected that the court properly considered the nature and circumstances 

of the offense. The State also asserts that the trial court’s larger discussion of whether defendant’s 

conduct threatened harm suggests that it treated this factor in mitigation, as it also stated that it 

agreed with defendant that “this isn’t a violent offense.” 
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¶ 36 Here, we need not determine whether the trial court improperly considered a factor inherent 

in the delivery of heroin when it sentenced defendant because we find that even if the trial court 

did so, the record plainly shows that it gave insignificant weight to that allegedly improper factor. 

See Grant, 2019 IL App (3d) 170185, ¶ 29. Contrary to defendant’s argument, the record shows 

the trial court did not emphasize the harm caused to society by heroin, but rather, was dismissive 

of that factor, as evidenced by its observation—made twice—that the instant crime was not violent. 

See People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 18. While the trial court did comment in 

passing that heroin causes harm to society, it is clear from the entirety of its remarks that its focus 

and primary consideration in fashioning a sentence was defendant’s extensive criminal history, 

which it twice noted included numerous crimes of violence and was “almost continuous.” Given 

that the trial court did not place any weight on the factor of the dangers of heroin to society, we 

find that defendant’s sentence should be affirmed. See Grant, 2019 IL App (3d) 170185, ¶ 29.

¶ 37 In light of the facts of this case, the interests of society, and the trial court’s stated 

consideration of mitigating and aggravating factors, we cannot find that defendant’s sentence 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. Accordingly, we find no abuse of discretion.

¶ 38 For the reasons explained above, we affirm the judgment of the circuit court.

¶ 39 Affirmed.