People v. Nischwitz , 2022 IL App (3d) 190067-U ( 2022 )

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).
2022 IL App (3d) 190067-UOrder filed January 11, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois,
Plaintiff-Appellee, )
) Appeal Nos. 3-19-0067 and 3-19-0068
v. ) Circuit Nos. 17-CF-303 and
) 17-CF-388
)
EDMOND P. NISCHWITZ, ) Honorable
) Michael D. Risinger,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court.
Justices Holdridge and McDade concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: Defendant’s sentence was not excessive.
¶2 Defendant, Edmond P. Nischwitz, appeals from his convictions for aggravated assault
and aggravated battery. Defendant argues that his sentence is excessive in that the Tazewell
County circuit court: (1) improperly considered defendant’s mental illness as an aggravating
factor, and (2) failed to consider the seriousness of defendant’s crimes. We affirm.
¶3 I. BACKGROUND
¶4 On July 20, 2017, defendant was charged with aggravated assault, a Class 4 felony. See
720 ILCS 5/12-2(b)(4.1) (West 2016). While out on bond, defendant committed aggravated
battery, a Class 3 felony, for which he was charged on September 14, 2017. See id. § 12-
3.05(f)(1). On October 19, 2017, defendant underwent a fitness evaluation, where a forensic
psychiatrist found that defendant had bipolar disorder but was fit to stand trial.
¶5 On January 2, 2018, a hearing was held to discuss defendant’s potential participation in
the mental health court program. Under this program, defendant would enter a guilty plea in
mental health court and the court would withhold sentencing. If defendant successfully
completed the program, the case would be closed. The following day, defendant appeared in
mental health court to consent to participate in the program and plead guilty to both charges. The
factual basis for the plea for aggravated assault established that on June 30, 2017, defendant was
in an ambulance being transported to the hospital when he spat at a paramedic. The factual basis
for the plea for aggravated battery established that on August 13, 2017, defendant struck his
brother with a board.
¶6 Defendant was informed of the maximum sentences he faced if he failed to complete the
mental health program. For aggravated assault, defendant was eligible for an extended-term
sentence of up to six years’ imprisonment. 1 For aggravated battery, defendant faced a maximum
of five years’ imprisonment. Since defendant committed the aggravated battery while free on
bond, any prison sentences the court imposed were required to be served consecutively.
¶7 While participating in the mental health program, defendant tested positive for marijuana
several times and was unable to produce the proper number of prescribed medications several
1
Defendant was extended-term eligible because he was previously convicted of a Class 4 felony
in 2011. See 730 ILCS 5/5-5-3.2(b)(1) (West 2016).
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times as well. Defendant was arrested on October 1, 2018, after he failed to appear for court on
two separate occasions. On October 24, 2018, defendant voluntarily withdrew from the mental
health program. Subsequently, the case was set for sentencing.
¶8 At sentencing, the State acknowledged that defendant’s mental health issues should be
considered as a mitigating factor. The State argued in aggravation that defendant had a violent
criminal history, was dangerous, and had failed to complete the mental health program. The State
asked the court to sentence defendant to eight years’ imprisonment. Defense counsel asked the
court to consider defendant for high risk probation, arguing that defendant’s mental health
history was substantial and that the violation in the mental health court program was minor.
Defense counsel argued that defendant would be a good candidate for high risk probation
because defendant’s presentence investigation report (PSI) showed that he was in the very high
risk category to reoffend.
¶9 The recommendation from the PSI stated that a sentence to community supervision
would not be appropriate because defendant had made little progress while in mental health court
and was frequently dishonest.
¶ 10 When sentencing defendant, the court said:
“All right, so having now considered the factual basis taken at the time of the
plea, the [PSI], and the extra materials here that I’ve received today, the history,
character, and attitude of this Defendant, and arguments that have been presented
here today, and also considering the statutory factors of aggravation and
mitigation, I am going to sentence you to prison, because I feel that a sentence of
probation would deprecate the seriousness of these offenses, but more
importantly, I think it would be inconsistent with the ends of justice.
3
We’ve already tried high risk probation. It’s called Mental Health Court.
We’ve already tried to medicate [defendant] out of his problem, and the amazing
thing was, every time he failed, he would spend some time in jail, and by the time
he would come to me after whatever amount of time in jail, he was cleaned up,
looking like a state senator, with the exception of wearing jail clothes, but he was
always so well cleaned up and clearly in his right mind, and as soon as he goes
out the door into freedom, bam.
He is not able to comply with any form of community supervision.”
¶ 11 The court sentenced defendant to consecutive terms of three years’ imprisonment for
aggravated assault and five years’ imprisonment for aggravated battery, followed by one year of
mandatory supervised release.
¶ 12 On January 29, 2019, defendant filed a motion to reconsider sentence, arguing that his
sentence was excessive and that the court failed to properly consider, weigh, or balance all
factors in mitigation and aggravation. At the hearing on defendant’s motion, the court said:
“I said this then. I’ll say it again. Whenever we would sanction
[defendant] for him typically failing to appear and then by the time we would
catch up to him, he ingested some drugs, usually marijuana, he would serve some
time in jail, and during his time in jail he would clean up. He would dry out, you
know. Whatever he was on he would come down from, and he would come to
court; and he would be so well cleaned up and clearly in his right mind. And
whenever he was released, it wouldn’t take long before things unraveled. This is
in spite of him working with our treatment provider and us attempting to work
with him through other classes that we had had ordered, other sessions of
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treatment. So he’s just totally inappropriate for any form of community
supervision. We couldn’t get anything more tailored to help him than mental
health court.”
The court denied defendant’s motion.
¶ 13 II. ANALYSIS
¶ 14 On appeal, defendant argues that his sentence is excessive where the court improperly
considered an aggravating factor and failed to consider the seriousness of the crimes.
¶ 15 We will not alter a defendant’s sentence absent an abuse of discretion by the circuit court.
People v. Alexander, 239 Ill. 2d 205, 212 (2010). “[A] sentence within statutory limits will be
deemed excessive and the result of an abuse of discretion by the trial court where the sentence 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).
¶ 16 As an initial matter, we note that the statutory range for an extended-term sentence for a
Class 4 felony is three to six years’ imprisonment. See 720 ILCS 5/12-2(b)(4.1) (West 2016);
730 ILCS 5/5-4.5-45 (West 2016). The statutory range for a Class 3 felony is two to five years’
imprisonment. See 720 ILCS 5/12-3.05(f)(1) (West 2016); 730 ILCS 5/5-4.5-40 (West 2016).
Here, the sentences were statutorily required to be served consecutively. See 730 ILCS 5/5-8-
4(d)(9) (West 2016). Defendant’s three-year prison sentence for aggravated assault and
consecutive five-year prison sentence for aggravated battery are within the statutory range for
both offenses and are therefore, presumptively valid. See People v. Sauseda, 2016 IL App (1st)
140134, ¶ 12.
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¶ 17 Nonetheless, defendant argues that the circuit court improperly considered defendant’s
mental health as an aggravating factor, rather than as a mitigating factor when determining his
sentence. Mental illness should be weighed as a factor in mitigation where:
“At the time of the offense, the defendant was suffering from a serious mental
illness which, though insufficient to establish the defense of insanity, substantially
affected his or her ability to understand the nature of his or her acts or to conform
his or her conduct to the requirements of the law.” 730 ILCS 5/5-5-3.1(a)(16)
(West 2016).
¶ 18 After reviewing the record, we find that the court did not abuse its discretion by
improperly considering defendant’s mental illness as an aggravating factor. Defendant takes
issue with the court’s comments that defendant was often cleaned up and in his right mind after
spending some time in jail. The court’s remarks at sentencing were in response to defense
counsel’s argument that the court should sentence defendant to high risk probation. The court
explained that defendant was not appropriate for probation because of his failure to complete the
mental health program. At the hearing on defendant’s motion to reconsider sentence, the court’s
remarks echoed its explanation as to why defendant was not appropriate for probation.
¶ 19 Contrary to defendant’s argument, the record reveals that the court did consider
defendant’s mental illness as a factor in mitigation. The court stated that it considered the factual
basis, the PSI, the history, defendant’s character and attitude, the parties’ arguments, and the
statutory factors in aggravation and mitigation when determining defendant’s sentence.
Moreover, both the State and defense counsel stated that defendant’s mental illness was a
statutory factor to be considered in mitigation. “Where mitigating evidence is presented to the
trial court during the sentencing hearing, we may presume that the trial court considered it,
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absent some indication, other than the sentence itself, to the contrary.” People v. Perkins, 408 Ill.
App. 3d 752, 763 (2011). Although the court did not discuss the statutory factors at length, it is
not required to cite each factor it considered in fashioning a defendant’s sentence. See id.¶ 20 Defendant also argues that his sentence is excessive because the offenses to which he
pled guilty were relatively minor and did not cause anyone physical harm. We disagree. The
legislature determined that aggravated assault and aggravated battery are serious offenses when it
categorized them as Class 4 and Class 3 felonies, respectively. 720 ILCS 5/12-2(b)(4.1) (West
2016); 730 ILCS 5/5-4.5-45 (West 2016); 720 ILCS 5/12-3.05(f)(1) (West 2016); 730 ILCS 5/5-
4.5-40 (West 2016); see also People v. Sharpe, 216 Ill. 2d 481, 487 (2005) (noting “the
legislature is institutionally better equipped to gauge the seriousness of various offenses”). The
court was aware of the factual basis of each plea and stated that it considered this information in
determining defendant’s sentence. As the record indicates, the court ultimately determined that
sentencing defendant to probation would deprecate the seriousness of the offenses. We find that
defendant’s sentence is neither greatly at variance with the spirit and purpose of the law, nor is it
manifestly disproportionate to the nature of the offenses. See Stacey, 193 Ill. 2d at 210.
Therefore, the circuit court did not abuse its discretion when it sentenced defendant to eight
years’ imprisonment.
¶ 21 III. CONCLUSION
¶ 22 The judgment of the circuit court of Tazewell County is affirmed.
¶ 23 Affirmed.
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