{ "id": 5188051, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOMINGO LUNA, Defendant-Appellant", "name_abbreviation": "People v. Luna", "decision_date": "1992-09-23", "docket_number": "No. 2\u201491\u20141047", "first_page": "544", "last_page": "552", "citations": [ { "type": "official", "cite": "234 Ill. App. 3d 544" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "229 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5215372 ], "weight": 2, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0336-01" ] }, { "cite": "41 Ill. 2d 297", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853523 ], "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0297-01" ] }, { "cite": "132 Ill. App. 3d 339", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3443434 ], "weight": 2, "pin_cites": [ { "page": "347", "parenthetical": "Heiple, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0339-01" ] }, { "cite": "205 Ill. App. 3d 231", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2568864 ], "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0231-01" ] }, { "cite": "121 Ill. App. 3d 100", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559532 ], "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0100-01" ] }, { "cite": "132 Ill. App. 3d 512", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3442189 ], "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0512-01" ] }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "142 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236660 ], "year": 1977, "pin_cites": [ { "page": "18-19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0013-01" ] }, { "cite": "150 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502652 ], "pin_cites": [ { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0900-01" ] }, { "cite": "163 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3545910 ], "year": 1986, "pin_cites": [ { "page": "1048" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/1039-01" ] }, { "cite": "201 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2593987 ], "year": 1987, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0573-01" ] }, { "cite": "93 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3103110 ], "year": 1990, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/93/0155-01" ] }, { "cite": "113 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3172916 ], "year": 1982, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0083-01" ] }, { "cite": "210 Ill. App. 3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2534706 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "947" }, { "page": "947" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0940-01" ] } ], "analysis": { "cardinality": 971, "char_count": 18333, "ocr_confidence": 0.796, "pagerank": { "raw": 8.415360274914107e-08, "percentile": 0.4834718163105262 }, "sha256": "d607fb0306b6887913bf114a84b3a747d75751f53945986fcf5f2477936d6221", "simhash": "1:eb32e746e20bac77", "word_count": 3034 }, "last_updated": "2023-07-14T17:59:47.941433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOMINGO LUNA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Kane County, defendant, Domingo Luna, was convicted of battery, a Class A misdemeanor (Ill. Rev. Stat. 1989, ch. 38, par. 12\u20143(a)). The trial court sentenced defendant to 52 weeks\u2019 probation, 10 consecutive weekends at Kane County Correctional Center, and 50 hours\u2019 community service. Defendant appeals, contending that the trial court erred in imposing defendant\u2019s sentence by improperly emphasizing defendant\u2019s sexual irresponsibility and failing to consider mitigating factors.\nDefendant and the victim, Guillermia Cruz, were husband and wife and living together in March 1990, the time of the offense. At trial, Cruz testified that she arrived home from work at 11:30 p.m. on March 16. Defendant arrived five minutes later and appeared to be drunk. Defendant told Cruz he wanted to talk to her. She replied \u201clater\u201d and then put the couple\u2019s baby to bed. Defendant repeated his desire to talk to Cruz, but she refused because it was too late. Defendant then grabbed Cruz by her hair and took her into their bedroom. Defendant hit her with his open hand in and around her face five or more times and accused her of cheating on him. When Cruz denied cheating on him, defendant threw her against a table, injuring her foot. Defendant then threw her facedown to the floor, sat on her back, and asked if she had a boyfriend. When she did not answer, defendant grabbed her hair, pulled her head back and slapped her again in the face. Defendant then grabbed her neck and threatened to kill her. Cruz eluded defendant\u2019s grasp momentarily, but defendant threw her on the bed, got on top of her and threatened to rape her. After eluding defendant\u2019s grasp again, Cruz ran into the baby\u2019s room and phoned a neighbor, who subsequently called the police. After she signed a complaint against defendant, Cruz went to Sherman Hospital for treatment for injuries to her head, face, and foot.\nOfficer Daniel Keen testified that he arrived at the couple\u2019s home at 12:48 a.m. in response to a police call regarding a domestic disturbance. He noticed five fresh bruises on Cruz\u2019 face and cheek, that her hair was messed, and that she appeared frightened. Cruz told Officer Keen that defendant had struck her face with his fist and showed the officer a ball of approximately 20 to 30 hairs which she stated defendant had pulled off her head. Officer Keen noticed defendant\u2019s eyes were bloodshot and that defendant appeared highly intoxicated. After Cruz stated she wanted to press charges, Officer Keen placed defendant under arrest.\nDefendant testified that he was a diabetic requiring insulin injections three times a day. Defendant had been working as a machine operator for the past three years. He had been unable to purchase any insulin for four days prior to the incident because he had not yet been paid that week. After he got paid on March 16, he took an insulin injection at 5 p.m. He drank two beers between 7 p.m. and 8 p.m. and then went home. He watched television the remainder of the evening and did not consume any more alcohol. At midnight, he went to pick up Guillermia Cruz from her work, but returned home when her foreman told him Cruz had already left. Defendant went back home, which took approximately four minutes, and waited for Cruz. Defendant was feeling sick from his previous lack of insulin, causing drowsiness and slurred speech, which defendant stated gives the impression of being intoxicated. Cruz arrived 10 to 15 minutes later, and defendant asked her where she had been. When she replied \u201cNone of your business,\u201d defendant grabbed her arm and said \u201cLet\u2019s talk.\u201d Cruz then began swinging her arms at defendant. Defendant put his hands in front of his face to protect himself, and his hand brushed against Cruz\u2019 face. Cruz then ran into the bedroom, but defendant remained in the living room, where he fell asleep until the police arrived.\nThe jury found defendant guilty of battery (Ill. Rev. Stat. 1989, ch. 38, par. 12\u20143(a)). The presentence report states, inter alia, that the 42-year-old defendant has been employed since 1989 as a laborer at Flexonics, Inc., in Bartlett, Illinois, making $8.74 per hour, and that defendant had three various convictions from 1967 through 1975. The report also listed defendant as having the following children:\nMary Ann Luna, age 23, Indianapolis, Indiana;\nJennifer R. Lima, age 20, Truman, Arkansas;\nStella Alicia Maria Luna, age 11, Elgin, Illinois;\nCarlos Martinez, age 10, Elgin, Illinois;\nDonna Luna, age 5, Elgin, Illinois;\nDavid Luna, age 3, Elgin, Illinois; and\nEleana Martinez, age 2, Elgin, Illinois.\nThe report also listed defendant\u2019s debts, including \u201cChild Support\u2014 $300.00 \u2014 $500.00,\u201d $745.10 owed to Sherman Hospital, and $4,000 owed to Childrens Memorial Hospital.\nAt the sentencing hearing, defendant testified that he had missed a lot of work because of going to court and could have been making $2 more per hour if not for this lost time. After Cruz had obtained an emergency protective order, defendant gave his baby daughter to his mother because he had no place to take her. Defendant\u2019s subsequent girlfriend had also left him. Defendant also stated that the doctors who treated Cruz at the hospital did not state that she had been injured in the incident.\nDuring the sentencing hearing, defendant\u2019s attorney stressed that defendant had been employed at his current job continuously for the past three years, that defendant had not been arrested on any violent charge for over 20 years, and his last charge was for DUI in 1984. She also mentioned that defendant and the victim were divorced after the incident, that the only contact they have is when they exchange children on visitation, and that there had been no problems between them since the incident. Defendant\u2019s attorney also stated:\n\u201cHe also supports his children. In fact, he\u2019s got six children in the area, Your Honor, and he is supporting them. His girlfriend is pregnant at this time and is expecting her child any time this month.\u201d\nAfter the State\u2019s Attorney presented his recommendations, which included weekend service at Kane County Correctional Center, defendant\u2019s attorney replied:\n\u201cAs far as weekends, Mr. Lima and his girlfriend are expecting the imminent birth of his child, and to ask him to serve weekends in the Kane County Jail, given the fact that he\u2019s not been arrested for anything even similar to this, Judge, since this trial, and we would be respectfully requesting a period of supervision with some type of community service.\u201d\nImmediately following defense counsel\u2019s remarks, the court made the following comments:\n\u201cTHE COURT: Well, we would do a great deal for the population explosion if we put Mr. Luna away for a very long time. He can\u2019t seem to treat his sexual activities with any responsibility, even as with people to whom he\u2019s not married.\nHe certainly does not demonstrate any suggestion of responsibility with regard to this woman that he has impregnated, there has been no indication he\u2019s going to marry her, that there\u2019s going to be any provision made for the care of that child along with the rest of the children he\u2019s created, apparently, without regard to anybody\u2019s needs.\nWhat\u2019s the debt to Children\u2019s Memorial Hospital? Is that one of the children you created?\nTHE DEFENDANT: How\u2019s that?\nTHE COURT: This $4,000 you say you owe Children\u2019s Memorial.\nTHE DEFENDANT: My son was born with a tumor in his neck.\nTHE COURT: How about Sherman Hospital, who\u2019s that for?\nTHE DEFENDANT: David. Your Honor, all children \u2014 most of them are stepchildren. Like she had two children. But my daughter, I\u2019m paying child support, but it\u2019s not my daughter. In other words, I claim her, but it\u2019s not my daughter.\nTHE COURT: Stella is not your child?\nTHE DEFENDANT: No, Stella is, but Carlos and\u2014\nTHE COURT: How about Donna?\nTHE DEFENDANT: Not my daughter.\nTHE COURT: She goes by the name of Luna?\nTHE DEFENDANT: Yes, because at the time she was born I was dating her mother, she put my last name.\nTHE COURT: She could have been your daughter?\nTHE DEFENDANT: No way, no, because I met her in January of \u201986 and Donna was born in May of \u201986.\nTHE COURT: How about David?\nTHE DEFENDANT: David is my son.\nTHE COURT: So, so far we \u2014 oh, no, one child is a stepchild?\nTHE DEFENDANT: Yes.\nTHE COURT: Carlos?\nTHE DEFENDANT: Stepchild.\nTHE COURT: And Elaina (phonetic)?\nTHE DEFENDANT: Stepchild.\nTHE COURT: So, you have no obligation to support them?\nTHE DEFENDANT: But I do support \u2019em.\nTHE COURT: But you\u2019re paying 50 or $60 a month in child\u2014\nTHE DEFENDANT: No, 60 a week in child support for David and Donna, also paying their insurance, Your Honor, and that is\u2014\nTHE COURT: How about Stella?\nTHE DEFENDANT: I support her also, Your Honor. She\u2019s with my mother. Those are my three children.\nTHE COURT: This is three children. You should be paying 32 percent of your net income as child support. Apparently you\u2019re not paying anything near that.\nTHE DEFENDANT: Other than paying, Your Honor, a \u2014 I also buy their clothes.\nTHE COURT: Under the law that\u2019s not a credit. Is there a divorce?\nTHE DEFENDANT: Yes, we got divorced.\nTHE COURT: Is there a support order in that divorce?\nTHE DEFENDANT: Yes.\nTHE COURT: What are you ordered to pay under that divorce settlement?\nTHE DEFENDANT: 60 a week and keep up their insurance, and I am. I believe I even have a check stub.\nTHE COURT: How many children do you have by your girlfriend?\nTHE DEFENDANT: We have none yet. She has two children.\nTHE COURT: This is the first one?\nTHE DEFENDANT: Yes. She has two. And her pregnancy was a mistake, because she has a diaphragm. Looks like she still got pregnant.\nTHE COURT: What days of the week do you work, sir?\nTHE DEFENDANT: Monday through Friday. Right now working Saturdays.\nTHE COURT: How long do you expect that to go on?\nTHE DEFENDANT: Overtime will stop around November.\nTHE COURT: All right. There has been a finding of guilty, judgment has been entered on that finding of guilty. Based thereon, the defendant is sentenced to serve twelve months probation, ten weekends in the Kane County Adult Correctional Center, which are to commence January 3rd, 1992.\nHe\u2019s to pay the costs to the Sheriff of those weekend stays. I don\u2019t know what that amount is off the top of my head.\nMR. ZICK [assistant State\u2019s Attorney]: I believe it\u2019s $12 a day.\nTHE COURT: Perform 50 hours of community service, pay costs in the amount of $48.\nGive me an order to that effect.\u201d\nOn appeal, defendant contends that in imposing this sentence the trial court violated defendant\u2019s constitutional right to privacy and procreation by improperly focusing upon defendant\u2019s fathering of several children by different women. Defendant further contends that the court failed to consider mitigating factors such as defendant\u2019s rehabilitative propensities, the probability of defendant\u2019s ability to become a useful member of society, defendant\u2019s steady employment, his support of his children and the ability to have contact with the victim to exchange children for visitation without incident.\nThe State first argues that defendant failed to challenge his sentence below at the sentencing hearing or by way of a motion to reconsider and, therefore, these sentencing issues are waived on appeal. We agree. See People v. Bolden (1991), 210 Ill. App. 3d 940, 947, citing People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Davis (1982), 93 Ill. 2d 155, 163; People v. Murray (1990), 201 Ill. App. 3d 573, 580; People v. Craddock (1987), 163 Ill. App. 3d 1039, 1048; People v. Killings (1986), 150 Ill. App. 3d 900, 909.\nDefendant nevertheless urges us to review this cause on the basis of plain error (134 Ill. 2d R. 615(a)). Based on the record before us, we do not find that plain error has occurred. Defendant was convicted of a battery, a Class A misdemeanor (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 3(a)). The possible sentence range for a Class A misdemeanor is a term of imprisonment less than one year. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20143(a)(l).) A sentence of periodic imprisonment is also permissible for one convicted of a Class A misdemeanor. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 7\u20141.) A probationary term not in excess of two years is also available for one convicted of a Class A misdemeanor. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 6\u20142(b)(3).) Community sendee may also be ordered. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143.) Consequently, defendant\u2019s sentence was within the permissible range.\nA trial court\u2019s sentencing decision is entitled to great deference and weight, and the standard of review is whether the trial court abused its discretion in imposing the sentence. (People v. Streit (1991), 142 Ill. 2d 13, 18-19; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) For a reviewing court to modify a sentence within the statutory limits, it must appear to the reviewing court that the sentence imposed is a clear departure from the spirit and purpose of the fundamental law and the constitutional requirement that the sentence be proportionate to the nature of the offense and that the possibilities for rehabilitation be taken into account. (People v. Bolden (1991), 210 Ill. App. 3d 940, 947.) A sentence is presumptively correct, and only where such a presumption has been rebutted by an affirmative showing of error will a reviewing court find that the trial court has abused its discretion. People v. Plantinga (1985), 132 Ill. App. 3d 512, 522.\nIt is true that when a record does not provide us the means to determine on what basis the court fixed a particular sentence we may find an abuse of discretion. (People v. Bergman (1984), 121 Ill. App. 3d 100, 109.) Here, however, the court allowed defendant to explain those children for whom he was genetically and financially responsible, notwithstanding the court\u2019s gratuitous comments regarding defendant\u2019s sexual irresponsibility. Apparently in an effort to accommodate defendant\u2019s weekends, the court also inquired into defendant\u2019s current and prospective work schedules. Thus, contrary to defendant\u2019s contentions, the trial court did not rely solely on defendant\u2019s \u201clifestyle and lack of consideration to the defendant\u2019s current situation and background,\u201d as cited in defendant\u2019s brief.\nWe also note that it was defendant\u2019s attorney who, in attempting to illustrate defendant\u2019s responsibilities, twice brought defendant\u2019s procreative history and imminent fatherhood to the court\u2019s attention. The court\u2019s gratuitous remarks came immediately after defense counsel requested no weekend incarceration, due to defendant and his girlfriend \u201cexpecting the imminent birth of his child.\u201d It is quite likely that the court\u2019s comments were in response to, or at least invited by, defense counsel\u2019s statements concerning defendant\u2019s sexual history. However, because defendant did not challenge his sentence at the hearing, or through a motion to reconsider or reduce his sentence, the trial court did not have any further opportunity to explain the basis for its comments.\nThe judgment of the trial court in imposing sentence depends on many factors, including the defendant\u2019s credibility, demeanor, general moral character, mentality, social environment, habits, and age; the court is to consider all matters reflecting upon the defendant\u2019s personality, propensities, tendencies, and indeed every aspect of his life relevant to the sentencing proceeding. (People v. Gutirrez (1990), 205 Ill. App. 3d 231, 268.) We find no implication of defendant\u2019s constitutional right of privacy or procreation. (But cf. People v. McCumber (1985), 132 Ill. App. 3d 339 (majority held that court improperly considered defendant\u2019s prior abortions in determining sentence; constitutional right of privacy implicated).) We believe a defendant\u2019s moral character, including the tendency to be irresponsible, is a legitimate factor for the court to consider, and we do not find that the court exceeded the bounds of decency or relevancy. (See People v. Adkins (1968), 41 Ill. 2d 297, 301.) Considering the nature of the offense, the range of possible sentences, and the opportunity given to defendant to explain his genetic and financial responsibilities, we find no error, plain or otherwise, on the basis of the court\u2019s initial remarks. See McCumber, 132 Ill. App. 3d at 347 (Heiple, J., dissenting).\nHaving found no error requiring reversal, we nevertheless feel compelled to once again comment on the recurring tendency of trial judges\u2019 use of ill-considered comments which have only a tangential relationship to the fixing of a sentence, thereby inviting arguments of prejudicial error even where none truly exist. This court recently addressed this growing problem in People v. Fort (1992), 229 Ill. App. 3d 336, and our comments bear repeating here:\n\u201cTrial judges should be the exemplars of dignity and impartiality. They should exercise restraint over their conduct and utterances. They should suppress their personal predilections and control their tempers and emotions, limiting their comments and rulings to what is reasonably required for the orderly progress of the proceeding and refraining from the unnecessary disparagement of persons or issues. See ABA Standards Relating to the Administration of Criminal Justice, Function of the Trial Judge \u00a76.4 (1974).\nWe strongly urge trial judges to be circumspect and limit their comments to the factors directly relevant to the sentencing issues and to make clear and unambiguous records from which we may determine the appropriateness of sentences. To do otherwise risks the reversal of the court\u2019s judgment, a remand to the trial court for a new sentencing hearing and the concomitant waste of judicial resources.\u201d Fort, 229 Ill. App. 3d at 342.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nDOYLE and DUNN, JJ., concur.", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "Michael Mclnerney, Public Defender, of Geneva (Judith M. Kullenberg, Assistant Public Defender, of counsel), for appellant.", "Gary V. Johnson, State\u2019s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOMINGO LUNA, Defendant-Appellant.\nSecond District\nNo. 2\u201491\u20141047\nOpinion filed September 23, 1992.\nMichael Mclnerney, Public Defender, of Geneva (Judith M. Kullenberg, Assistant Public Defender, of counsel), for appellant.\nGary V. Johnson, State\u2019s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0544-01", "first_page_order": 564, "last_page_order": 572 }