## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . McGowan , 2013 IL App (2d) 111083

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. RODNEY L . McGOWAN, De fenda nt-Appellant.

District & N o. Second District Docke t No. 2-11-1083

Filed J une 17, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The 120-year sentenc e imposed on defe ndant for home i n v as i on and ag g ravated criminal sexual assault of a 75-year -old woman was upheld

o v er defe ndant’s contention that the sentenc e was excessive, sinc e d ef endant had been a criminal for most of his life, he violated the l aw
even while incar cer ated, his c onduct essentially destroyed the life of his victim, and although re h ab ilitation should be considered in most case s, defe ndant’s sente nce w as not an a buse of discr etion.

Dec ision Under Review Appea l from the Circuit C o u rt of Kane County
, No. 10-CF- 1080; the Hon. Timothy

Q. Sheldon, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas A. L ilien and J amie L

. Montgome ry , both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

J oseph H. McMahon, State’s Attorney
, of St. C h ar les (L awr ence M. Ba uer and Kathry

n E

. Kohls, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE HUTCH I NS ON delivere d the judgme nt of the court, with opinion.
J ustices Z enoff

and Jorge nsen conc urre d in the judgme nt and opinion.

OP INION

¶ 1 On t he evening of April 23, 2010, defe ndant, Rodney L

. McGowa n, bro k e i n t o t h e apar tment of D.W., who was 75 year s of ag e, and beat and rape d her. Fo re n s i c evidenc e
rec overe d from the scene , including DNA found on a used condom, identified defe ndant as the possible perpe trator. Def endant was charg ed with various offe nses related to the incident, and the State notified him that it was seeking both mandatory consec utive sentenc es (730 I L CS 5/5-8-4(d) (1), (d)( 2) (West 2010)) and extended-term sentenc es (730 I L CS 5/ 5 -5

- 3.2(b)( 2), (b)( 3)(ii) (West 2010)). See 725 I L CS 5/111-3(c- 5) (West 2010). Following a jury trial, defe ndant was fo u n d gu i lty of two counts of aggravated criminal sexual assault (720 I L CS 5/12-1 4 (a )( 2 ), (a) (5) (West 2010)), ag gravated battery to a senior citizen (720 I L CS 5/12-4.6(a) (West 2010)), and home invasion (720 I L CS 5/12-11(a) (2) (West 2010)). In findingdefe ndant guilty

of ag gravated criminal sex ual assault and home invasion, the jury deter mined that the commission of those offe nses was acc ompanied by exceptionally brutal

or heinous behavior indicative of wanton crue lty (see 730 I L CS 5/5 -5 -3

. 2 (b )(2) (West 2010)). Following a sentenc ing hearing, the trial court vacated defe n dant’s conviction of ag gravated battery to a senior citizen
, fi n d i ng it a lesser included offe nse of ag gravated criminal sexual assault; sentenc ed defe ndant to 60 year s’ imprisonment for home invasion; merg ed the two convictions of ag gravated criminal sexual assault; and sentenc ed defe ndant to a consec utive term of 60 year s’ imprisonment for ag gravated criminal sexual assault. Def endant moved the trial court to rec onsider his sentenc e, arguing, among other things, that his ag g reg ate sentenc e was excessive. Th e t rial court denied the motion, and this timely appea l followed. We aff

irm. ¶ 2 Evidence prese nted at defe n d ant’s sentenc ing hearing, which i ncluded his presentenc e investigation repor

t (PSI ), reve aled that defe ndant beg an committing crimes when he was a teena g er. In 1984, when defe ndant was 16 year s of ag e, he was arr es t ed i n Arka nsas for burg lary and subsequently sentenc ed to three year s’ i mprisonment. He wa s on parole f or a littl e more than two months when he was arr ested for another burg lary

. Nine day s afte r that

-2-arr est, he was arr ested for criminal conspirac y t o co m m i t ag grava ted robber

y , criminal conspirac y to commit kidnaping
, and theft of proper ty

. Def endant’ s parole in th e fi rst burg lary case was revoke d, and he was sentenc ed to 20 year s’ imprisonment for both counts involving criminal conspiracy

. ¶ 3 The PSI further reve aled that defe ndant amassed numerous disciplinary infrac tions while serving his 20-year prison sentenc e in Arka nsas. These rang ed from failing to obey an order g iven by prison staff and cre ati n g u n nece ssary noise to possession of drug s, indece nt exposure, and making sexual proposals and threats. D efe ndant was rele ased from prison in Arka nsas in November 2006, and although he admitted that he eng ag ed in illeg al activities involving druguse af

ter that, he was not ar

rested f or any of these of

fense s. ¶ 4 In her victim i mpact stateme nt, D.W. indi cate d that “[w]hen [ defe ndant] did all t hat t o me, he almost destroyed me and my children.” She clarified that, becaus e of the beating defe ndant g ave her, she continues t o s u ffer pain in her fac e, nose, and eyes and might g o blind in one eye. Also, while she enjoyed walking long distances befor e the attack, she now has great difficulty

g etting a round. Her rent and other expenses incre ased, a nd her me dical bills rema in unpaid; she stated that she is “broke .” She further indicated that she had to move out of her apar

tment and is still scar ed and para noid, has problems eating and drinking
, and believes that she is havinga ner vous breakdown. ¶ 5 J ennife r Smit h, who is a corr ectional officer at t h e Ka n e C o u n t y j ai l
, t es tified at d efe ndant’s sentenc ing hearing about her interac tion with defe ndant when he was i n j ai l

awa iting his trial in this case

. Smit h rec ounted one occa sion wher e d ef endant, who was housed o n t h e second floor of the jail, positioned himself by his cell window and openly masturbated while staring at Smith, who was seate d at the office r’s desk on the first floor 120 fee t awa y

. Smit h went to retrie ve the ticket book, wher e disciplinary violations are rec orded, and, upon seeing this, defe ndant stopped. Soon afte r that encounte r, defe ndant y elled obscenities at Smit h when she did not turn on the l ight in his cell. Defenda nt called Smi th

a “ ‘fuc king bitch,’ ” told her to “suck h i s dick,” and asser ted that she did not do what he asked of her beca

use she was not “g et[ti ng ] any dick.” Def endant “told [S mith] to stick [her] stinking ass up to the cra ck [of the jail cell] so that he could take car e of [he r]

. ” By t his, defe ndant appar ently meant that he would cut off Smit h’s hair, which defe ndant did not like,

or eng ag e in sexua l ac t ivities with her. Def endant also threatened Smith, saying, “ ‘[w] ait until Isee your blee ding a ss on the outside.’ ” ¶ 6 Kathry

n McGowa

n, defe ndant’s mother, testified about how much s h e l o v es her son. Kathry n sug g ested that life was difficult for defe ndant beca use his fathe r was never a part of his life. Def

endant ha d asked Kathry

n, who has lungcanc er a

nd a bad kidne y , not to come to court, beca

use he was conce rned for her health. Kathry n never theless insisted on being in court to support her son. De fenda nt, who was una

ble to g et a job af

ter be ing r elea sed fr om prison, never asked Kathry n for financ ial support, opting instead to sell his blood. Acc ording to the PSI , defe ndant would sell his blood to get money to buy drug s. ¶ 7 When defe ndant test i fi ed
, h e ac knowledg ed that he has ang er manag ement proble ms. Def endant indicated that he acte d inappropr i at el y in jail beca use some of the corr ectional office rs di d not treat him well. De fenda nt elaborated that some of the officers did not fee d

-3-him and that he was denied toilet paper and toothpaste. Although defe ndant acte d

inappropriately with some of t he off icer s, he neve r ac ted inappropriately with either of his fema le attorne y s. ¶ 8 I n al l o cution, defe ndant stated that he was sorry for what happene d to D.W.
, b u t h e claimed that he “had nothing to do with it.” Def end an t d es cr i bed how he helped make a documentar

y about the time he serve d in prison in Arka nsas, worke d with a radio station in Chicag o and “put a

lot of people in Elg in in Chi cag o on the ra dio,” and shoveled snow f or elder ly people in his community for fre e. Def endant stated that being co n victed of these offe nses put stress on him and his family and that he hoped that “one d ay that, you know, somebody

or–come forth or at least clea r me fr om this m ess.” ¶ 9 I n s entencing defe ndant, the court delineate d all of the fac ts it considere d, such as the circ umstances of the offe nses, D.W.’s statement, defe ndant’s lack of a relationship with his fathe r, and defe ndant’s ang er manag ement issues. The court imposed a 120-year ag greg ate term of impriso nment b e c a u s e , a s “a dang er to civiliz ed society ,” “[d] efe ndant [shoul d] never ag ain be a fre e man.” ¶ 10 At issue in this appea l is whether defe ndant’s 120-year prison sentenc e is excessive. The trial court’s sentenc ing decision is entitl ed t o grea t defe renc e, and we may not disturb a defe ndant’s sentenc e unless the trial court abused its discretion. People v. Stacey
, 193 I ll. 2d 203, 209 (2000). A sentenc e that falls within the statutory rang e is not an abuse of discretion unless it varie s g reatly from the purpose and spirit of the law or is manifestly disproportionate to the nature of the offe nse. People v. Ave rett , 381 I ll. App. 3d 1001, 1020- 21 (2008 ). Be cause the trial court is in a superior position to evalua te the defe ndant’s

cre dibilit y and demeanor and to b alanc e the various factors in ag grava tion and mi tigation,

we may not overturn a sentenc e mere ly beca use we might have weighed the pertinent fac tors differ ently . See Stacey , 193 I ll. 2d at 209. ¶ 11 In sentenc ing a defe ndant, the trial court must consider the char acte r and circ umstances

o f t h e o ffense itself (

People v. Bowman
, 357 I ll. App. 3d 290, 304 (2005)) and the d ef endant’ s char acte r, criminal history
, mentality
, social environments, habits, ag e, future dang erousne ss, and potential for reha bilitation (

People v. Thompson
, 222 I ll. 2d 1, 35 (2006); Ave rett , 381 I ll. App. 3d at 1020). Of all these fac tors, the seriousness of the offe nse has been called th e m o s t i mp o rt ant. People v. Jones
, 376 I ll. App. 3d 372, 394 (2007); People v. Evans , 373 I ll. App. 3d 948, 968 (2007). ¶ 12 Her e, g iven all of the fac ts prese nted, we cannot conclude that a 120-year sentenc e, which i s t h e maxi mum that could have been imposed, was excessive. The evidenc e reve als t h at defe ndant has been a criminal for more than half of his life. Even when he was not incar cer ated, he still chose to violate the law by
, among other things, possessing drug s. When defe ndant was in prison in Ar k an s as , he repe atedly failed to follow the rules. Indeed, defe ndant’s citations for making sexual threats sug g est that, on some occa sions, defe ndant’s conduct amounted to much more than simply failing to follow the rules. Def endant’ s abhorr ent behavior persisted when he was in jail i n Ka n e County

. Smit h testified to how defe ndant ’s co n du ct toward her was far from simply uncivil. Added to all of that are the horren d o u s ci rcumstanc es of the prese nt offe nses. Def endant broke into the home of an

-4-elder ly woman and beat and rape d her with such forc e that she is now phy sically
, mentally
,

and financ ially ill-equipped to continue with a life simil ar to the one she had befor e the attac k

. And, seeming ly oblivious to the victim’s welfa re or the jury ’s deter

mination of defe ndant’s guilt, which was based, at l ea s t i n part, on fore nsic evidenc e rec overe d at the

scene , defe ndant’s conce rn focuse d on finding someone to clea r him of “this mess.” Be cause
o f th e ab undance of ag g rava ting fac tors, we conclude that the trial court did not abuse its discretion in sentenc ing de fenda nt. ¶ 13 Def

endant claims that the ag greg ate s en t en ce i mp o s ed v i o l at es t h e co n stitut ional direc tive of re storing him to useful citiz enship. “The command of the I llinois Constitution to consider the reha

bilitative potential of a criminal offe nder in sentenc ing does not require a court in ever

y instance to grant the offe nder an opportunity for rehabilitation.” People v. Bien , 277 I ll. App. 3d 744, 756 (1996). Thus, “[n] ot all criminal def

endants must be g iven

an opportunity for reha

bilitation.” (Emphasis in orig inal.) Id. at 755-56. I f an opportunity for reha bilitation wer e require d in every case , then “life imprisonment would not be constitutionally permissible.” Id. at 756. “The responsibility for balanc in g b e tw e e n r e ndering justice and reha

bilitating the defe ndant re sts with the trial court.” Id. Imposing wha t is, for prac tical purposes, a life sentenc e on “a defe ndant who has committed heinous phy sical and emotional harm to a vic tim is not at varia nce w ith the spirit and purpose of the law.” Id. ¶ 14 Although we agree that an opportunity for reha bilitation should be grante d in most cases, the trial court found that the circ umstances here dictated otherwise. We cannot conclude that the trial cour

t’s assessment constituted an a buse of discr etion. ¶ 15 Ad d i t i o n al l y , citing sever al case s wher e the defe ndants wer e convicted o f s i m i l ar
o ff enses and had their sentenc es reduc ed, defe ndant sug g ests that his sentenc e likewi s e should be reduc ed. We disagree

. Disparate sentenc es imposed on defe ndants convicted of simil ar offe nses may be justified if there is a valid rea son for the disparity

. People v. Stroup
, 397 I ll. App. 3d 271, 274 (2010). Be tween this case and the case s on which defe ndant relies, there is a valid rea son for the disparity

. In one case , the defe ndant had a relativ el y benign criminal history

. People v . Merritt , 53 I ll. App. 3d 929, 932 (1977) ( the def endant ha d one prior convic tion and that was of a mi sdemea nor). In another , the def

endant’ s criminal ac ts

wer e intrusive, but they wer e not violent. Peopl e v. Maggette
, 195 I ll. 2d 336, 355 (2001) (“A lthough [t he] defe ndant’s behavior was appalling and harmful, it was not sever e enough to warr ant the [10-year ] sentence imposed.” ). ¶ 16 Def

endant also relies on the concur renc e in a fede ral case to arg ue that his “life se ntence ” should be reduc ed. In United States v. Craig
, 703 F.3d 1001, 1004 (7th Cir. 2012) (Posner, J
., concur ring ) ( per curiam ), the judge sug g ested that fac tors to consider should include “the cost of imprisonment of very elder ly prisoners, the likelihood of rec idivism by them, and the modest incre mental eff

ect of substitut ing a superlong sentenc e for a mere l y v ery long sentenc e.” Although those fac ts may have been signific ant in Craig
, wher e the defe ndant, who was 46 when he was sentenc ed for producing child pornography
, had no criminal history ( id. at 1002 (majority op.)), the same cannot be said of defe ndant here

. Unlike the defe ndant in Craig
, defe ndant here had a limit ed criminal history only beca use he had been incarcer ated for most of his life. Given a ll of these fa cts, we c annot conc lude that the trial court abused its discretion when it imposed a 120-year sentenc e.

-5-¶ 17 For these re asons, we a ffirm the judgment of the c ircuit court of Kane County

.

¶ 18 Affir

med.

-6-