People v. Johnson , 2024 IL 130191 ( 2024 )

2024 IL 130191IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 130191)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RYANN N. JOHNSON, Appellant.
Opinion filed November 21, 2024.
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Holder White, Cunningham,
Rochford, and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Defendant was convicted, by jury, of aggravated domestic battery (720 ILCS
5/12-3.3(a-5) (West 2018)). After considering statutory factors in mitigation and
aggravation, the circuit court of Logan County imposed an extended-term sentence
of 10 years’ imprisonment. The appellate court found that defendant forfeited his
argument on appeal that the circuit court considered improper factors in aggravation
when imposing the sentence. 2023 IL App (4th) 230087-U, ¶¶ 1, 34. In determining
whether the forfeited issue was reviewable under the plain error doctrine, the
appellate court concluded that, although a clear or obvious error occurred, plain
error was not established because the evidence was not closely balanced nor was
the error so egregious that it denied defendant a fair sentencing hearing. Id. ¶¶ 50,
52, 55, 57. As such, the appellate court affirmed the judgment of the circuit court.
Id. ¶¶ 1, 59-60. For the following reasons, we affirm the judgment of the appellate
court.
¶2 I. BACKGROUND
¶3 A. Charges
¶4 On October 23, 2018, the State charged defendant, by information, with two
counts of home invasion (720 ILCS 5/19-6(a)(2) (West 2018)) (counts I and II),
two counts of criminal sexual assault (id. § 11-1.20(a)(1)) (counts III and IV), and
one count of aggravated domestic battery (id. § 12-3.3(a-5)) (count V). Count V
alleged that on or about October 21, 2018, defendant, in committing a domestic
battery (id. § 12-3.2(a)(1)), knowingly strangled Lacey S., a family or household
member of defendant. Count V further indicated that, pursuant to sections 5-4.5-
35(a), 5-5-3.2(b)(1), and 5-8-2 of the Unified Code of Corrections (Code of
Corrections) (730 ILCS 5/5-4.5-35(a), 5-5-3.2(b)(1), 5-8-2 (West 2018)) and
pursuant to his conviction in Logan County case No. 14-CF-85, defendant was
eligible for extended-term sentencing, which subjected him to a sentencing range
of 7 to 14 years’ imprisonment, if convicted.
¶5 B. Pretrial Motion to Introduce Other-Crimes Evidence
¶6 On April 24, 2019, the State filed a pretrial motion to introduce evidence of
defendant’s other crimes of domestic violence, pursuant to section 115-7.4 of the
Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.4 (West 2018)). The State
sought to introduce defendant’s convictions of aggravated domestic battery of
Bianca R. in Logan County case No. 14-CF-85 and domestic battery of Lacey S. in
Logan County case No. 15-CF-68. The circuit court granted the State’s motion to
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introduce the convictions.
¶7 C. Jury Trial
¶8 Defendant’s jury trial commenced on July 18, 2022. 1 Bianca R. (Bianca)
testified that she had known defendant since 2011. She and defendant were
previously engaged and had two children together. Bianca recalled that on August
15, 2014, at approximately 1:30 a.m., she was at home in bed when she received a
phone call from defendant. Bianca testified that she hung up on him and went back
to sleep. At approximately 2:30 a.m., Bianca was awakened by defendant, who was
sitting on top of her, straddling her with his knees, and holding her down with his
arms on her shoulders. Bianca attempted to reach for her phone, but defendant
pushed her back and said, “It’s already gone. Don’t look for it.”
¶9 Bianca indicated that defendant wanted to talk to her about their failed
relationship and “figure this out.” They went outside to talk because there were
three small children sleeping in the house. Once outside, Bianca “looked at him in
the eye and told him, ‘F*** you.’ ” Bianca testified that defendant “literally put his
arms around my throat into my esophagus, threw me into the table, [and] smashed
an ashtray.” Bianca testified that, when defendant grabbed her by the throat, he
“choked me until I lost consciousness,” explaining that “it was black for a minute.”
Bianca sustained a gash in her tongue, handprints on her throat, scrapes and
scratches on her knees and leg, and scratches on her shoulders and arms.
¶ 10 Bianca testified that the attack ended when defendant saw her five-year-old son
standing at the door. Bianca’s six-month-old baby also woke up and “needed a
bottle.” Bianca testified that defendant allowed her to make a bottle for the baby,
then indicated, “You are going to talk to me.” Bianca went to the bedroom and
talked to defendant. After defendant calmed down, Bianca went to the living room
to get her five-year-old to sleep. Upon returning to the bedroom, Bianca observed
that defendant “had passed out.” Because Bianca could not locate her phone, she
used her Kindle to contact a friend who called the police on her behalf. Defendant
1
Though testimony relevant to all counts of the information was adduced at trial, defendant was
acquitted of counts I through IV and convicted only of count V. Accordingly, we set forth only the
testimony corresponding to that conviction as it pertains to the issue before this court.
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was arrested and eventually pleaded guilty to aggravated domestic battery of Bianca
in Logan County case No. 14-CF-85.
¶ 11 Lacey S. (Lacey) testified that she and defendant began dating in 2015 and,
though they have a child together, they never lived together. Their child was six
years old at the time of the trial. Lacey testified that on October 21, 2018, she was
at home, and defendant was repeatedly sending text messages to her, upset that she
was not responding to him, and asking to speak to their child. Defendant continued
harassing Lacey, notwithstanding that she asked him several times to leave her
alone. Lacey testified that the text messages eventually stopped and approximately
10 or 15 minutes later, she heard “heavy footsteps” in the hallway.
¶ 12 Lacey testified that defendant entered the room, came toward her, and reached
for her phone. When she tried to get her phone, defendant grabbed her by her hair
and threw her to the floor. Lacey indicated that defendant was accusing her of
sleeping with somebody. He climbed on top of her, put his legs over the tops of her
arms, and sat on her chest. Lacey testified that defendant held her phone in one
hand and grabbed her head with the other hand “and slammed it into the floor a
couple of times while he was still accusing me of cheating on him.”
¶ 13 Lacey explained that, when defendant had her phone, he saw text messages
between her and another man. When defendant asked how long she had been seeing
the man, Lacey replied, “[N]ot very long.” At that point, defendant grabbed Lacey
by the neck and began to strangle her. Lacey testified that defendant applied
pressure to her neck, he was squeezing extremely hard, she began to see black spots,
she was unable to breathe, and “it felt like my eyes were going to pop out.”
Defendant continued accusing Lacey and asking her why she was telling everyone
that they were no longer together.
¶ 14 Lacey testified that defendant let go, questioned her further, then pushed her
down by her neck again and choked her for 15 or 20 seconds. Lacey recalled “seeing
a lot of black spots and he told me he wished he could kill me.” Lacey reported that
she could not breathe but that she never completely blacked out.
¶ 15 Lacey testified that defendant eventually stopped assaulting her and followed
her to the bathroom as he continued accusing her of sleeping with the other man.
When Lacey attempted to run to the front door, defendant shoved her head into the
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door, and she fell to the floor. All the while, defendant was shouting at her and
demanding to know why she was seeing somebody else. When Lacey was able to
get up, defendant asked her repeatedly if she intended to call the police. Defendant
told Lacey that he would leave if she would not call the police and if she would
change her phone number. Lacey agreed, and defendant left. Lacey called the police
and was transported to the hospital by ambulance. She sustained bruising to her
shoulder, marks on both sides of her neck and above her eyebrow, and a laceration
on the back of her ear.
¶ 16 Lacey further testified about a separate episode of violence between her and
defendant that occurred on April 18, 2015. After she and defendant attended a
wedding on that date, they went to a hotel and argued. Lacey left the hotel.
Defendant pursued her to the parking lot and shoved her into the door handle of his
truck. Defendant was arrested and eventually pleaded guilty to domestic battery of
Lacey in Logan County case No. 15-CF-68.
¶ 17 Robert Sherren testified that he is employed by the Lincoln Police Department
as a day shift patrol sergeant. Sherren testified that at approximately 3:20 p.m. on
October 21, 2018, he was on duty and was dispatched to Lacey’s home in response
to a reported home invasion. When Sherren arrived, Lacey let him in the front door.
Sherren noted a small child was present in the home. Sherren described Lacey as
emotionally disturbed, upset, and crying; her face was red, and “you could just tell
she was distraught.” Sherren observed red marks around Lacey’s neck and on her
arms. Sherren testified that Lacey was transported to the hospital by ambulance.
¶ 18 Sumesh Jain testified that he is an emergency physician who treated Lacey in
the hospital on October 21, 2018. He recalled bruising to both sides of Lacey’s
neck, as well as injuries to her shoulder and ankle. Jain testified, inter alia, that
Lacey “had a history and exam consistent with physical assault.”
¶ 19 Defendant testified that on October 21, 2018, he was sending text messages to
Lacey about their child and Lacey told him to leave her alone. Defendant testified
that he went to Lacey’s home uninvited and knocked on the door and that Lacey let
him in. Defendant and Lacey talked in the kitchen for a while then moved to the
living room to watch television. Defendant testified that, when Lacey went to the
restroom, he picked up her phone and reviewed her text messages. Defendant
discovered that Lacey had been messaging with another man and sending him
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photographs of their child. When Lacey returned, defendant confronted her about
the messages and an argument ensued. Defendant testified that Lacey slapped him
and he grabbed her by her hair, threw her to the floor, “called her a stupid, dirty
whore and grabbed her by the neck.” Defendant admitted that he squeezed and held
Lacey’s neck.
¶ 20 The jury convicted defendant of aggravated domestic battery. The circuit court
entered a judgment on the verdict on July 21, 2022.
¶ 21 D. Sentencing Hearing
¶ 22 A sentencing hearing was conducted on September 16, 2022. The presentence
investigation report (PSI) indicated that defendant’s criminal history consisted of
three felony convictions and three Class A misdemeanor convictions. Relevant here
is the felony conviction of aggravated domestic battery of Bianca in Logan County
case No. 14-CF-85 and the felony conviction of domestic battery of Lacey in Logan
County case No. 15-CF-68. Defendant committed the offense involving Lacey
while he was on probation for the offense involving Bianca.
¶ 23 The PSI further indicated that defendant’s parents divorced when he was two
years old, he was diagnosed with attention deficit hyperactivity disorder when he
was approximately four years old, he began smoking marijuana when he was 10
years old, he used several additional substances throughout his teenage years, and
he struggled with anxiety and depression most of his life. Defendant described
himself as an alcoholic and a cocaine addict. Defendant also submitted several
supportive character letters.
¶ 24 Lacey provided a victim impact statement in which she described the incident
and indicated, inter alia, that her child witnessed the attack and was required to ride
to the hospital in the ambulance beside her. Lacey asserted that she was not sure if
she would “ever be completely healed” of the “pain, stress, anxiety, and absolute
humiliation this attack has caused me to have.”
¶ 25 The State indicated that the sentencing range was 3 to 14 years in the
Department of Corrections, followed by 4 years of mandatory supervised release.
The State acknowledged that probation was an option but argued that a sentence of
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probation was inappropriate, considering the facts and circumstances of the case
and defendant’s violent behaviors and criminal history. Accordingly, the State
requested the circuit court to consider statutory factors in aggravation as follows:
“MR. HAUGE: On the other hand, there are statutory factors in aggravation
that do apply, specifically Subsection 1 of the [Code of Corrections], that the
defendant’s conduct caused or threatened serious harm, and that’s not just the
physical harm that Lacey suffered, but that’s the emotional harm, as well. And
you can see that she still carries that with her years and years and years later
and will continue to.
Subsection 3, the defendant has a history of prior delinquency or criminal
conduct, and he does.
Subsection 7, the sentence is necessary to deter others from committing the
same crime. Again, a message needs to be sent that domestic violence towards
women, sexual assaults, home invasions, should not be tolerated.
Subsection 12, the defendant was convicted of a felony committed while he
was on parole, and that’s what we have here, Your Honor. That’s a statutory
factor in aggravation.
And Subsection 14, the last section that applies is that the defendant held a
position of trust or supervision over another, such as a family or household
member, and that’s what Lacey is. So there are five statutory factors in
aggravation that apply in this case.” (Emphasis added.)
The State recommended a 13-year prison sentence. Though defendant conceded
that a sentence of probation was inappropriate, he recommended a five-year prison
sentence.
¶ 26 The circuit court agreed with the parties that probation was inappropriate, given
defendant’s “long history of an inability to conduct himself in accordance with the
provisions of any type of community-based court sentencing that he’s been
sentenced to in the past.” The circuit court explained:
“[W]hen the defendant doesn’t get his way, he’s willing to become violent in
order to get his way. That seems to be a common theme of all of these incidents;
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and for that reason, I think it is necessary to protect the public, as well as these
individual victims here; that a Department of Corrections sentence is
necessary.”
¶ 27 The circuit court emphasized that “[t]his was one of the more violent domestic
violence cases this Court has presided over. Obviously, it’s inherent in the elements
of the offense, aggravated domestic battery, that there is violence, but not every
case involves strangulation, and strangulation to the point where the victim was
almost passing out.”
¶ 28 In considering the statutory factors in mitigation and aggravation, the circuit
court concluded that an extended-term sentence was necessary. Regarding the
factors in mitigation, the circuit court noted defendant’s extensive history of
substance abuse and mental health issues, as well as his remorseful attitude.
¶ 29 Regarding the factors in aggravation, the circuit court commented:
“THE COURT: On the other hand, the aggravating factors, you did cause
serious harm. You have a history of prior delinquency or criminal activity. The
sentence here is necessary to deter others. You are, obviously, not the only
person in this state that thinks that they can control women when they don’t get
their way by violence. We deal with that every day, so we need to deter others
by the sentence here today; and, of course, this crime occurred while you were
on parole, on mandatory supervised release, and you were in a position of trust,
being the father of [Lacey’s] child. So all of those factors apply. All of those
point to a higher sentence. Like I said before, I think an extended term is
necessary.” (Emphasis added.)
The circuit court sentenced defendant to a 10-year prison term. Defendant filed a
pro se motion to reconsider the sentence, which the circuit court denied.
¶ 30 E. Appellate Court
¶ 31 On appeal, defendant argued that the circuit court erred in imposing the 10-year
prison sentence by improperly considering in aggravation (1) an element inherent
in the offense and (2) that defendant held a position of trust in relation to the victim.
2023 IL App (4th) 230087-U, ¶¶ 2, 34. Though defendant conceded that he
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forfeited these arguments by failing to object at the sentencing hearing and by
failing to raise them in his motion to reconsider the sentence, he requested the
appellate court to review the arguments under the plain-error doctrine. Id. ¶ 34.
¶ 32 In determining whether a clear or obvious error occurred, the appellate court
first addressed defendant’s argument regarding the element inherent in the offense.
Id. ¶ 45. The appellate court found it was not improper for the trial court to consider
in aggravation that defendant strangled Lacey until she almost passed out. Id. The
appellate court explained that the circuit court considered not only that defendant
strangled Lacey but that he strangled her to an extent beyond what was necessary
to establish that element of the offense. Id. The appellate court noted that, pursuant
to People v. Saldivar, 113 Ill. 2d 256, 269 (1986), a sentencing court may consider
the degree of harm caused by a defendant’s conduct, even when the harm is inherent
in the offense. 2023 IL App (4th) 230087-U, ¶ 45.
¶ 33 Applied here, the appellate court observed that, although strangulation is
inherent in aggravated domestic battery, not every case of strangulation causes the
victim to nearly pass out. Id. Thus, the appellate court concluded that the sentencing
court could suitably consider the greater degree of harm caused by defendant. Id.The appellate court referenced Lacey’s testimony that defendant squeezed her neck
“ ‘extremely hard’ ” until she “ ‘felt like [her] eyes were going to pop out’ ” and
she “ ‘started to see black spots.’ ” Id. On that basis, the appellate court concluded
that it was not error for the circuit court to consider in aggravation that defendant
strangled Lacey. Id.¶ 34 Regarding whether it was error for the circuit court to consider defendant’s
position of trust in relation to the victim as a sentencing factor in aggravation, the
appellate court observed section 5-5-3.2(a) of the Code of Corrections (730 ILCS
5/5-5-3.2(a) (West 2022)), which provides the factors a sentencing court may
consider in aggravation, and subsection (a)(14) (id. § 5-5-3.2(a)(14)), which
provides the aggravating factor of a defendant holding a position of trust or
supervision over a victim who is under the age of 18 in the instance of a defendant
committing one of several enumerated sex offenses. 2023 IL App (4th) 230087-U,
¶ 48.
¶ 35 The appellate court noted that, in considering the statutory factors in
aggravation, the circuit court noted defendant’s “ ‘position of trust, being the father
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of [Lacey’s] child.’ ” Id. ¶ 49. The appellate court found that factor was
inapplicable here, where defendant was acquitted of the charges of criminal sexual
assault and Lacey was not a victim under the age of 18. Id. Accordingly, the
appellate court concluded that the circuit court erred in considering that factor in
aggravation. Id.
¶ 36 Having found the circuit court erred, the appellate court next determined
whether the error constituted plain error. Id. ¶ 52. The appellate court found the first
prong of the plain error rule inapplicable, as the evidence was not closely balanced
in comparing the evidence of aggravation with the evidence in mitigation. Id. ¶ 55.
The appellate court further found the second prong of the plain error rule
inapplicable, reasoning that defendant failed to explain how the circuit court
deprived him of a fair sentencing hearing by considering an improper sentencing
factor. Id. ¶ 57. The appellate court noted its previous rejection of that argument
and likewise rejected it in this case. Id. (citing People v. Johnson, 2017 IL App
(4th) 160920, ¶ 56). As such, the appellate court affirmed the circuit court’s
judgment. Id. ¶ 59.
¶ 37 II. ANALYSIS
¶ 38 The issue before this court is whether the forfeited error of the circuit court’s
consideration of an improper factor in aggravation at sentencing is subject to plain
error review under the second prong of the plain error rule. Defendant concedes
that he forfeited the issue by failing to raise a contemporaneous objection when the
circuit court considered the improper factor at the sentencing hearing and by failing
to raise the issue in his motion to reconsider his sentence. See People v. Williams,
181 Ill. 2d 297, 322 (1998). However, defendant urges this court to excuse the
forfeiture under the plain error rule.
¶ 39 A. Overview of the Plain Error Rule
¶ 40 A defendant generally forfeits review of the circuit court’s consideration of
improper evidence at a sentencing hearing if he fails to object at the hearing and
fails to raise the issue in a postsentencing motion. See id.; see also People v. Herron,
215 Ill. 2d 167, 175 (2006) (both objection at trial and raising the issue in written
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posttrial motion are required to review errors that could have been raised at trial).
This forfeiture rule encourages defendants “to raise issues before the trial court,
allowing the court to correct its own errors.” Herron, 215 Ill. 2d at 175. “This
forfeiture rule also prevents criminal defendants from sitting idly by and knowingly
allowing an irregular proceeding to go forward only to seek reversal due to the error
when the outcome of the proceeding is not favorable.” People v. Jackson, 2022 IL
127256, ¶ 15.
¶ 41 “The plain error rule is a well-established exception to forfeiture principles,
allowing reviewing courts discretion to excuse a defendant’s procedural default.”
People v. Moon, 2022 IL 125959, ¶ 19. Illinois Supreme Court Rule 615(a) (eff.
Jan. 1, 1967), commonly known as the plain error rule, provides that “[p]lain errors
or defects affecting substantial rights may be noticed although they were not
brought to the attention of the trial court.” Before this court adopted Rule 615(a),
Illinois courts deemed forfeiture “a harsh sanction for a defendant whose attorney
failed to raise an error before the trial court.” Herron, 215 Ill. 2d at 176.
Accordingly, the rule was implemented to ameliorate the harshness of forfeiture.
Jackson, 2022 IL 127256, ¶ 18.
¶ 42 The plain error rule does not allow reviewing courts to consider all forfeited
errors, however. Herron, 215 Ill. 2d at 177; see People v. Precup, 73 Ill. 2d 7, 16
(1978) (plain error doctrine is not “a general saving clause preserving for review
all errors affecting substantial rights whether or not they have been brought to the
attention of the trial court”). Rather, “it is a narrow exception to forfeiture principles
designed to protect the defendant’s rights and the reputation of the judicial process.”
Moon, 2022 IL 125959, ¶ 21.
¶ 43 The plain error rule allows reviewing courts to review a forfeited error if the
error falls under one of two alternative prongs:
“(1) when a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the
defendant, regardless of the seriousness of the error, or (2) when a clear or
obvious error occurred and the error is so serious that it affected the fairness of
the defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence.” Id. ¶ 20.
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These two prongs are “the standards for Illinois courts to consider in deciding
whether to excuse forfeiture.” Jackson, 2022 IL 127256, ¶ 19. Under both prongs,
the burden remains with the defendant to persuade the court to excuse the forfeiture.
Id.¶ 44 The first step in the plain error analysis is to determine whether a clear or
obvious error occurred. Moon, 2022 IL 125959, ¶ 22. Here, in identifying the
aggravating factors at sentencing, the circuit court stated that defendant was “in a
position of trust, being the father of [Lacey’s] child.” Defendant maintains that the
sentencing court committed a clear or obvious error by considering this as a factor
in aggravation. The State responds that a sentencing court “must consider all
matters reflecting upon the defendant’s personality, propensities, purposes,
tendencies, and indeed every aspect of his life relevant to the sentencing
proceeding.” People v. Ward, 113 Ill. 2d 516, 527 (1986). As such, the State
maintains that the circuit court properly considered the nature of defendant’s
relationship with Lacey as the mother of his child as part of the circumstances of
the assault. See 730 ILCS 5/5-5-3.1(b) (West 2022) (sentencing court must consider
“the nature and circumstances of the offense”). We agree with defendant.
¶ 45 Section 5-5-3.2(a) of the Code of Corrections enumerates the statutory factors
a sentencing court may consider in aggravation when imposing a sentence. Id. § 5-
5-3.2(a). The provision at issue here is subsection (a)(14), which provides that a
factor in aggravation exists by virtue of a defendant holding a position of trust or
supervision in relation to a victim who is under the age of 18, where the defendant
committed one of several sexual offenses. Id. § 5-5-3.2(a)(14).
¶ 46 Here, the circuit court stated that defendant was “in a position of trust, being
the father of [Lacey’s] child.” Again, this statement was made in the context of
identifying the aggravating factors applicable to this case, and the circuit court
explicitly referenced it as a factor it considered in imposing the sentence. Directly
after making this statement, the circuit court continued: “So all of those factors
apply. All of those point to a higher sentence.” Given the clear context in which
this statement was made, we reject the State’s suggestion that the circuit court
uttered the statement to describe the circumstances of the assault (see id. § 5-5-
3.1(b)).
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¶ 47 We further note that the State’s own remarks at the sentencing hearing
undermine the argument it now makes before this court. At the sentencing hearing,
the State set forth the applicable factors in aggravation as follows: “On the other
hand, there are statutory factors in aggravation that do apply, specifically”
“[s]ubsection 14, the last section that applies is that the defendant held a position
of trust or supervision over another, such as a family or household member, and
that’s what Lacey is. So there are five statutory factors in aggravation that apply in
this case.”
¶ 48 In sum, the record establishes that the State erroneously advised the circuit court
to consider defendant’s position of trust in relation to the victim as an applicable
aggravating factor and that the circuit court in turn erroneously considered the same
as an aggravating factor in imposing the sentence. Defendant’s position of trust in
relation to the victim was clearly inapplicable here, as defendant was acquitted of
all sexual assault charges and Lacey was not a victim under the age of 18. As such,
we agree with defendant that the circuit court committed a clear or obvious error
by considering defendant’s position of trust in relation to the victim as a statutory
factor in aggravation in imposing the sentence.
¶ 49 Having found a clear or obvious error occurred, the next step in the plain error
analysis turns “on which prong of the plain error rule the defendant has invoked in
seeking a review of [the] forfeited error.” Moon, 2022 IL 125959, ¶ 23. When a
defendant seeks review under the first prong, “the reviewing court must determine
‘whether the defendant has shown that the evidence was so closely balanced the
error alone severely threatened to tip the scales of justice.’ ” Id. (quoting People v.
Sebby, 2017 IL 119445, ¶ 51). “This first prong of the plain error rule, i.e., the
closely balanced evidence prong, ‘guards against errors that could lead to the
conviction of an innocent person.’ ” Id. (quoting Herron, 215 Ill. 2d at 186).
¶ 50 When a defendant seeks review under the second prong, “the reviewing court
must determine ‘whether the defendant has shown that the error was so serious it
affected the fairness of the trial and challenged the integrity of the judicial
process.’ ” Id. ¶ 24 (quoting Sebby, 2017 IL 119445, ¶ 50). “This second prong of
the rule, i.e., the substantial rights prong, ‘guards against errors that erode the
integrity of the judicial process and undermine the fairness of the defendant’s
trial.’ ” Id. (quoting Herron, 215 Ill. 2d at 186). “Errors that fall within the purview
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of the second prong of the plain error rule are ‘presumptively prejudicial errors—
errors that may not have affected the outcome, but must still be remedied’ because
the error ‘deprive[d] the defendant of a fair trial.’ ” Id. (quoting Herron, 215 Ill. 2d
at 185).
¶ 51 Here, defendant has invoked only the second prong of the plain error rule,
arguing that the circuit court’s consideration of the improper factor in aggravation
was structural error, requiring a new sentencing hearing regardless of the closeness
of the evidence at sentencing or whether the error affected the outcome of the
sentence. See id. ¶ 27. As such, our analysis focuses solely on the standards
governing review under the second prong of the plain error rule. Whether
defendant’s forfeiture of the circuit court’s clear or obvious error of considering the
improper factor in aggravation constitutes second prong plain error is a question of
law that is reviewed de novo. Jackson, 2022 IL 127256, ¶ 25.
¶ 52 B. Second Prong Plain Error Requires a
Showing of Structural Error
¶ 53 This court recently reviewed the standards governing the second prong of the
plain error rule in Moon, 2022 IL 125959, ¶¶ 26-30, and Jackson, 2022 IL 127256,
¶¶ 26-31. We revisit those standards once again and likewise apply them here. As
mentioned above, the plain error rule itself is “ ‘a narrow and limited exception’ to
procedural default.” Jackson, 2022 IL 127256, ¶ 27 (quoting People v. Downs,
2015 IL 117934, ¶ 15). Furthermore, errors that are reviewable under the second
prong of the plain error rule are rare. Id. (citing People v. Rivera, 227 Ill. 2d 1, 19-
20 (2007)).
¶ 54 Obtaining review under the second prong of the plain error rule is indeed a high
hurdle, as the second prong is only implemented “ ‘in those exceptional
circumstances where, despite the absence of objection, application of the rule is
necessary to preserve the integrity and reputation of the judicial process.’ ” Id. ¶ 28
(quoting People v. Herrett, 137 Ill. 2d 195, 214 (1990)). Applied here, defendant is
asking this court to overlook his forfeiture and review the circuit court’s error not
only under a narrow and limited rule but also under the rarely applied second prong
of that narrow and limited rule. See id. ¶ 27.
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¶ 55 This court has equated second prong plain error with “structural error,” which
is the type of error that “ ‘erode[s] the integrity of the judicial process and
undermine[s] the fairness of the defendant’s trial.’ ” Jackson, 2022 IL 127256, ¶ 28
(quoting Herron, 215 Ill. 2d at 186). An error is deemed structural only if it renders
the criminal trial—or here, the sentencing hearing—fundamentally unfair. Moon,
2022 IL 125959, ¶ 28. Unlike errors reviewed under the first prong of the plain
error rule, if structural error occurs, the defendant is not required to show that he
was prejudiced by the error. Jackson, 2022 IL 127256, ¶ 28. Rather, “prejudice to
the defendant is presumed regardless of the strength of the evidence or the effect of
the error on the trial outcome.” Moon, 2022 IL 125959, ¶ 27. This is so because,
when the error is of such gravity as to threaten the integrity of the judicial process,
courts must correct the error to protect the fairness and reputation of the process.
Id.¶ 56 “The United States Supreme Court has explained that ‘[t]he purpose of the
structural error doctrine is to ensure insistence on certain basic, constitutional
guarantees that should define the framework of any criminal trial.’ ” Jackson, 2022
IL 127256, ¶ 29 (quoting Weaver v. Massachusetts, 582 U.S. 286, 294-95 (2017)).
The United States Supreme Court has also explained that structural errors—which
are subject to automatic reversal—occur only in a “ ‘very limited class of cases.’ ”
Moon, 2022 IL 125959, ¶ 28 (quoting Johnson v. United States, 520 U.S. 461, 468
(1997)).
¶ 57 “The structural errors identified by the Supreme Court include a complete
denial of counsel, denial of self-representation at trial, trial before a biased judge,
denial of a public trial, racial discrimination in the selection of a grand jury, and a
defective reasonable doubt instruction.” Id. ¶ 29 (citing Washington v. Recuenco,
548 U.S. 212, 218 n.2 (2006)). It is axiomatic that structural “errors affect the
framework within which the trial proceeds, rather than mere errors in the trial
process itself.” Id. (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
¶ 58 In determining whether an error is structural for purposes of review under the
second prong of the plain error rule, this court is not limited to the list of structural
errors identified by the United States Supreme Court. Id. ¶ 30. Rather, we may
deem an error as structural as a matter of Illinois law regardless of the error’s status
under federal law. Id. Yet we look to the structural errors identified by the United
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States Supreme Court as comparisons to aid our quest in determining whether the
error at hand is likewise structural. Id.; see People v. Averett, 237 Ill. 2d 1, 13 (2010)
(“While the error is serious, it is not comparable to the errors recognized by the
Supreme Court as structural.”).
¶ 59 In the case at bar, our task, then, is to determine whether the circuit court’s error
of considering defendant’s position of trust in relation to the victim as a factor in
aggravation in imposing the sentence constituted structural error, which, again, “is
an error of such magnitude that it undermine[d] the framework within which the
[sentencing hearing] proceed[ed], rather than a mere error in the [sentencing]
process itself (Fulminante, 499 U.S. at 310), thereby excusing defendant’s
forfeiture of the error without him having to show prejudice.” Jackson, 2022 IL
127256 ¶ 31.
¶ 60 C. Review of Martin
¶ 61 Before examining this issue, we first address the numerous and significant
citation errors in defendant’s opening brief and petition for leave to appeal.
Defendant’s arguments are summarized in the heading of the argument section of
his opening brief as follows: “Where the consideration of an improper factor in
aggravation at sentencing affects a defendant’s fundamental right to liberty, the trial
court’s consideration of improper sentencing factors should be subject to plain error
review under the second prong of the plain error rule.”
¶ 62 To support this argument, defendant misrepresents this court numerous times
by incorrectly providing a purported quote from this court’s decision in People v.
Martin, 119 Ill. 2d 453 (1988), and by mischaracterizing our findings in Martin.
Twice in his opening brief and twice in his petition for leave to appeal, defendant
erroneously asserts that this court held in Martin that “[r]eview of whether the
circuit court improperly considered a factor in aggravation under the second prong
of the plain error doctrine is proper, as it affects a fundamental right, defendant’s
right to liberty.” (Emphasis added.) Martin contains no such statement. Nor do the
words “second prong” even appear in Martin, as the issue in that case dealt
exclusively with first prong plain error review. See id. at 458 (discussing whether
the evidence presented at the sentencing hearing was “closely balanced,” which is
clearly a first prong plain error analysis). Defendant further mischaracterizes
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Martin in his opening brief and petition for leave to appeal by alleging that, “[i]n
Martin, this Court found both prongs of plain error applicable.” (Emphasis added.)
This likewise misrepresents this court’s holding, as there was no discussion
whatsoever of second prong plain error review in Martin. 2 See id.¶ 63 After the State noted the misrepresentation in its appellee brief, defendant
explained in his reply brief that the purported quote was not an exact quote from
Martin but that it originated from an opinion of the first appellate district in People
v. Haley, 2011 IL App (1st) 093585, ¶ 62, in which, according to defendant, the
appellate court cited and summarized the findings of Martin. Looking again at the
subject quote, the Haley court provided that “[r]eview of whether the circuit court
improperly considered a factor in aggravation under the second prong of the plain
error doctrine is proper, as it affects a fundamental right, defendant’s right to
liberty.” (Emphasis added.) Id. The Haley court erroneously cited Martin to support
this statement. See id. To summarize, defendant here mistakenly attributed the
statement to Martin rather than Haley, and the Haley court based the statement on
a misreading of Martin.
¶ 64 In Martin, we revisited the fundamentals of the plain error rule and reasserted
the well-established principle that, “in the interest of justice, a reviewing court may
consider all questions which appear to be plain error or affect substantial rights of
a party.” (Emphasis and internal quotation marks omitted.) Martin, 119 Ill. 2d at
458 (citing Ill. S. Ct. R. 615 (eff. Jan. 1, 1967)). We concluded in Martin—strictly
within the confines of determining whether an alleged sentencing error was subject
to plain error review under the first prong of the plain error rule—that the
sentencing court’s consideration of an inapplicable sentencing factor in aggravation
in that case had “affected the defendant’s fundamental right to liberty [citation] and
impinged on her right not to be sentenced based on improper factors.” Id.¶ 65 Again, Martin was limited to our determination that first prong plain error
review was warranted. Id. The decision in no way suggests that any sentencing error
affecting a defendant’s right to liberty is automatically subject to second prong
plain error review, and we reject defendant’s arguments to the contrary. Defendant
2
Defendant concedes this error in his reply brief and indicates in a footnote that “counsel did
not intend any confusion.”
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urges that, although the Martin court conducted a first prong analysis, it
subsequently “returned to its earlier discussion of second-prong plain error,
concluding that the error ‘affected substantial rights of the defendant.’ ” See
Martin, 119 Ill. 2d at 460. Defendant is incorrect.
¶ 66 This court’s comment in Martin that the sentencing court’s consideration of an
inapplicable aggravating factor implicates a defendant’s “fundamental right to
liberty” (id. at 458) correlated to the earlier citation of the plain error rule, not to
the second prong of the plain error rule as defendant submits (see id. (reviewing
court may consider questions appearing to be plain error or affecting substantial
rights (citing Ill. S. Ct. R. 615 (eff. Jan. 1, 1967)))). Again, this court made no
mention of second prong plain error in Martin. As such, the subject comment does
not support defendant’s mischaracterization of Martin as “the clear precedent of
this [c]ourt” that consideration of an inapplicable sentencing factor necessarily
renders second prong plain error review appropriate because it affects a defendant’s
“fundamental right to liberty.”
¶ 67 Long-standing Illinois precedent further confirms that our statement in Martin
may not be construed to implicate automatic review under the second prong of the
plain error rule as defendant suggests. See Precup, 73 Ill. 2d at 16 (plain error
doctrine is not “a general saving clause preserving for review all errors affecting
substantial rights”). Indeed, establishing that a forfeited error affected a substantial
right does not grant automatic plain error review but merely satisfies the
prerequisite that the error must affect a substantial right before plain error review
is even considered. See Herron, 215 Ill. 2d at 185; see also People v. Keene, 169
Ill. 2d 1, 16-17 (1995); Precup, 73 Ill. 2d at 17 (“Before plain error can be
considered as a means of circumventing the general waiver rule, it must be plainly
apparent from the record that an error affecting substantial rights was committed.”).
Once it is determined that the error affected a substantial right, the reviewing court
may then proceed in determining whether the error is excusable under the plain
error rule. See Herron, 215 Ill. 2d at 185.
¶ 68 Our analysis in Martin conforms with precedent, as we first observed that the
defendant’s substantial right to liberty was affected by the sentencing court’s
consideration of the improper sentencing factor and subsequently determined that
first prong plain error review was appropriate and conducted that analysis. See
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Martin, 119 Ill. 2d at 458. Given the post-Martin confusion that has evolved among
the appellate districts, we clarify that our holding in Martin may not be extended to
allow automatic review under the second prong of the plain error rule when the
sentencing court considers an improper sentencing factor—which affects the
substantial right to liberty.
¶ 69 For the stated reasons, the first appellate district in Haley misread Martin in
stating that “[r]eview of whether the circuit court improperly considered a factor in
aggravation under the second prong of the plain error doctrine is proper, as it affects
a fundamental right, defendant’s right to liberty.” Haley, 2011 IL App (1st) 093585,
¶ 62 (citing Martin, 119 Ill. 2d at 458). To that extent, we overrule Haley.
¶ 70 Besides Haley, defendant cites several post-Martin decisions by the first,
second, third, and fifth appellate districts, which defendant alleges “have held that
a circuit court’s improper consideration of a factor in aggravation can be reviewed
under the second prong of the plain error doctrine because it affects the defendant’s
fundamental right to liberty.” Defendant sets forth a list of these decisions and
alleges that “all of the cases mentioned above rely on this Court’s decision in
Martin as support for the notion that the consideration of improper sentencing
factors constitutes second-prong plain error” and “stand in direct conflict with the
*** decision in this case.” We examine each of these decisions in turn.
¶ 71 Defendant cites People v. Whitney, 297 Ill. App. 3d 965, 969 (1998), in which
the first appellate district aptly quoted Martin for the proposition that a defendant
has the right to not be sentenced based on improper sentencing factors, which
impinges on the defendant’s fundamental right to liberty. The Whitney court then
concluded that “we may consider defendant’s argument on this point under the
doctrine of plain error, despite his failure to raise the issue *** in a written
postsentencing motion.” Id. The Whitney court concluded that the forfeited error
was reviewable under the first prong of the plain error rule as it was in Martin. See
id. at 969, 971. Because Whitney appropriately applied Martin in the context of a
first prong plain error analysis, defendant’s reliance on Whitney to support his
second prong argument is unfounded. See id. at 971 (where the appellate court
considered the weight of the evidence supporting the sentence).
¶ 72 Defendant also cites People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 7, in
which the second appellate district indicated that the second prong of the plain error
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rule was “potentially present here, because when a trial court considers erroneous
aggravating factors in determining the appropriate sentence of imprisonment, the
defendant’s ‘fundamental right to liberty’ is unjustly affected, which is seen as a
serious error” (citing People v. James, 255 Ill. App. 3d 516, 531 (1993)).
¶ 73 The Abdelhadi court did not cite Martin but cited James. See id. In James, the
first appellate district cited Martin in observing the sentencing court’s error of
considering an improper factor in aggravation, which affected the defendant’s
fundamental right to liberty and the right to not be sentenced based on improper
factors. James, 255 Ill. App. 3d at 531 (citing Martin, 119 Ill. 2d at 458). The James
court proceeded in determining the weight the sentencing court placed on the
improper factor under the first prong of the plain error rule. Id. at 531-33.
Accordingly, the James court’s reliance on Martin was proper. Though the James
court properly cited Martin, the Abdelhadi court cited James but erred by
implementing the second prong of the plain error rule, as neither James—nor
Martin, on which James relied—was a second prong plain error case. To that
extent, we overrule Abdelhadi.
¶ 74 Defendant next cites People v. Pierce, 223 Ill. App. 3d 423, 442 (1991), in
which the second appellate district cited Martin to support its first prong plain error
analysis in determining the weight the sentencing court placed on an improper
aggravating factor. Though we find Pierce inapplicable to the instant case because
it did not invoke second prong plain error review, we note the decision
mischaracterizes Martin.
¶ 75 Pierce initially cited Martin, stating that “we may review a court’s reliance on
an improper factor in aggravation in sentencing because it affects the defendant’s
fundamental right to liberty and, thus, amounts to plain error.” (Emphasis added.)
Id. at 441 (citing Martin, 119 Ill. 2d at 458). This misreads Martin.
¶ 76 Although we stated in Martin that the sentencing court’s consideration of an
inapplicable sentencing factor in aggravation “affected the defendant’s
fundamental right to liberty [citation] and impinged on her right not to be sentenced
based on improper factors,” we subsequently determined that first prong plain error
review was appropriate because the evidence was closely balanced. Martin, 119 Ill.
2d at 458; see Keene, 169 Ill. 2d at 16-17; Precup, 73 Ill. 2d at 17 (“Before plain
error can be considered as a means of circumventing the general waiver rule, it must
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be plainly apparent from the record that an error affecting substantial rights was
committed.” (Emphasis added.)). Accordingly, Martin did not establish that the
consideration of an improper sentencing factor automatically constitutes plain error
by virtue of it affecting a substantial right to liberty as Pierce indicates. See Pierce,
223 Ill. App. 3d at 441.
¶ 77 The Pierce court subsequently cited Martin and made a similar erroneous
statement that “[w]e consider this issue even in the absence of proper preservation
because an error in sentencing can affect defendant’s fundamental right to liberty
and thus amount to plain error.” (Emphasis added.) Id. at 443 (citing Martin, 119
Ill. 2d at 458). In sum, Pierce does not implicate the second prong of the plain error
rule and is thus inapplicable to this case. However, we overrule Pierce to the extent
of its mischaracterization of Martin by suggesting that consideration of an
improper sentencing factor automatically constitutes plain error.
¶ 78 Defendant next cites People v. Sanders, 2016 IL App (3d) 130511, ¶ 17, in
which the third appellate district explicitly misread Martin, purporting that this
court “found that both prongs of the plain error doctrine applied to this issue.”
(Emphasis added.) Id. (citing Martin, 119 Ill. 2d at 458-60). The Sanders court
continued, alleging that
“[r]egarding the second prong, the supreme court noted that:
‘[t]he trial judge’s consideration of the fact that the defendant’s conduct
caused serious harm to [the victim], resulting in his death, as a factor in
aggravation in sentencing clearly affected the defendant’s fundamental right
to liberty [citation] and impinged on her right not to be sentenced based on
improper factors [citation].’ ” (Emphasis added.) Id. (quoting Martin, 119
Ill. 2d at 458).
¶ 79 The Sanders court concluded:
“[T]he Martin rationale controls the outcome of this case. Specifically, the trial
court’s express finding that the defendant’s conduct caused or threatened
serious harm, a factor inherent in the offense of first degree murder, impinged
on the defendant’s right not to be sentenced based on an improper factor and
affected his fundamental right to liberty. [Citation.] Therefore, we reverse the
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defendant’s sentence under the second prong of the plain error analysis, and we
remand the cause for resentencing.” (Emphasis added.) Id. (citing Martin, 119
Ill. 2d at 458).
To reiterate, Martin does not implicate the second prong of the plain error rule.
Accordingly, we overrule Sanders’s mischaracterization of Martin.
¶ 80 Defendant also cites People v. Young, 2022 IL App (3d) 190015, ¶ 23, in which
the defendant in that case argued that the error of relying on an improper sentencing
factor “is reversible under the second prong of the plain error doctrine.” (Emphasis
added.) After finding that clear error occurred, the third appellate district aptly
noted that “ ‘[r]eliance on an improper sentencing factor is amenable to plain-error
review because such reliance impinges upon defendant’s fundamental right to
liberty.’ ” (Emphasis added and internal quotation marks omitted.) Id. (quoting
People v. Maggio, 2017 IL App (4th) 150287, ¶ 50).
¶ 81 However, the Young court erred in agreeing with the defendant there that the
second prong of the plain error rule applied. See id. ¶ 21. Notwithstanding its
implicating the second prong of the plain error rule, the Young court cited Martin
and conducted its analysis based on whether “the improper factor was so
insignificant that its consideration did not result in a greater sentence,” which we
emphasize is a first prong plain error analysis. Id. ¶ 23 (citing Martin, 119 Ill. 2d at
458). We overrule Young to the extent that it cited Martin to justify a second prong
plain error analysis in the context of the sentencing court’s consideration of an
improper aggravating sentencing factor, then followed up with a first prong plain
error analysis.
¶ 82 Defendant next cites People v. Joe, 207 Ill. App. 3d 1079, 1085 (1991) (citing
Martin, 119 Ill. 2d at 458), in which the fifth appellate district cited Martin to
support its statement that considering an improper aggravating factor affects the
defendant’s fundamental right to liberty. Because Joe did not misread Martin and
was not a second prong plain error case, it is inapplicable to defendant’s argument.
¶ 83 Finally, defendant cites People v. Dempsey, 242 Ill. App. 3d 568, 597-98
(1993), in which the fifth appellate district maintained its previous conclusion in
Joe, 207 Ill. App. 3d 1079. Like Joe, Dempsey is also inapplicable here, as the issue
there did not invoke the second prong of the plain error rule, nor did the Dempsey
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court cite Martin.
¶ 84 D. Structural Error Analysis
¶ 85 Having addressed the mischaracterizations of Martin by defendant and the post-
Martin errors among the appellate districts, we now proceed with our task of
determining whether the circuit court’s error of considering defendant’s position of
trust in relation to the victim as a factor in aggravation in imposing the sentence
constituted structural error, which, again, “is an error of such magnitude that it
undermine[d] the framework within which the [sentencing hearing] proceed[ed],
rather than a mere error in the [sentencing] process itself (Fulminante, 499 U.S. at
310), thereby excusing defendant’s forfeiture of the error without him having to
show prejudice.” Jackson, 2022 IL 127256 ¶ 31.
¶ 86 As established, defendant cites no viable authority to support his argument that
the circuit court’s error of considering the improper factor in aggravation is subject
to second prong plain error review solely by virtue of the error having affected
defendant’s fundamental right to liberty.
¶ 87 Defendant alleges that the appellate court here “continuously rejects” the rule
“that the consideration of an improper sentencing factor affects a person’s
fundamental right to liberty.” We disagree. The appellate court by no means
rejected that principle but, rather, refused to conclude “that a sentencing court’s
consideration of an improper sentencing factor, by itself, necessarily constitutes
second-prong plain error.” 2023 IL App (4th) 230087-U, ¶ 57. We agree with the
appellate court.
¶ 88 Defendant correctly asserts that “the right to be sentenced lawfully is substantial
because it affects a defendant’s fundamental right to liberty.” See Martin, 119 Ill.
2d at 458. However, the bulk of defendant’s second prong argument is spent
discussing his mischaracterization of Martin and the appellate court decisions that
we determined are not applicable to defendant’s argument in this case.
¶ 89 Again, structural errors affect the very framework within which the sentencing
hearing proceeds, rather than mere errors in the sentencing process itself. See Moon,
2022 IL 125959, ¶ 29. Because a sentencing court is required to weigh all the
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evidence and factors in aggravation and mitigation to determine a defendant’s
culpability in imposing the sentence (see 730 ILCS 5/5-4-1 (West 2018)), a
structural error at sentencing is an error that renders the sentencing hearing itself an
unreliable means of implementing that balance.
¶ 90 Here, the circuit court’s error of considering the improper factor in aggravation
does not satisfy that standard because it did not affect the framework within which
the sentencing hearing proceeded but was a mere error in the sentencing process
itself. See Moon, 2022 IL 125959, ¶ 29. Nor did the error undermine the integrity
of the judicial process or render the sentencing hearing fundamentally unfair. See
id. ¶¶ 24, 28. Nor is the error comparable to the errors deemed structural by the
United States Supreme Court. See id. ¶ 29.
¶ 91 Moreover, as we noted in Jackson, “second-prong plain error can be invoked
only for structural errors that are not subject to harmless error analysis.” Jackson,
2022 IL 127256, ¶ 49; see People v. Logan, 2024 IL 129054, ¶ 80 (“An error that
is amenable to harmless error analysis is not a structural error.”). In contrast, “errors
reviewable under the first prong of the plain error rule are the type of errors that are
subject to harmless error analysis, and a defendant must establish prejudice
resulting from the error to excuse his forfeiture of such an error.” Jackson, 2022 IL
127256, ¶ 23. “We have previously found that the admission of improper
aggravation evidence during a sentencing proceeding is subject to harmless-error
analysis and reversal is not mandated in every instance.” People v. Banks, 237 Ill.
2d 154, 197 (2010); see People v. Bourke, 96 Ill. 2d 327, 332-33 (1983) (reviewing
claim that sentencing court considered improper sentencing factor for
harmlessness).
¶ 92 Applied here, because the sentencing court’s error of considering the
inapplicable aggravating factor is amenable to harmless error analysis, it follows
that it is not a structural error and may not be reviewed under the second prong of
the plain error rule, but it is reviewable under the first prong of plain error analysis.
See Jackson, 2022 IL 127256, ¶ 49.
¶ 93 Finally, defendant’s claim that the consideration of the improper factor in
aggravation is subject to second prong plain error review is undermined by his own
arguments, which implicate the first prong of the plain error rule rather than the
second prong. Defendant urges that the appellate court “never addressed whether
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the weight placed on the improper sentencing factor was significant because it
refused to review the argument as plain error” and “the record on appeal is sufficient
for this Court to determine that the weight placed on the improper sentencing factor
was not insignificant.” He further argues that, because the circuit court explicitly
mentioned the improper factor, it cannot be presumed that the factor “did not play
a role in the sentence” or “that the weight placed on the improper factor was
insignificant.”
¶ 94 These arguments illustrate why the sentencing error was not structural error and
thus not subject to second prong plain error review because “the concern under the
second prong of the plain error rule is addressing unpreserved errors that undermine
the integrity and reputation of the judicial process regardless of the strength of the
evidence or the effect of the error on the trial outcome.” Id. ¶ 24. Defendant’s
arguments that the error affected the outcome of the sentencing due to the closeness
of the evidence correspond to a first prong plain error analysis, under which a
forfeited error may be reviewed if the evidence was so closely balanced that the
error, no matter how seemingly inconsequential, was prejudicial. See id. ¶ 23;
Moon, 2022 IL 125959, ¶¶ 20, 23. Here, defendant’s issue correlates solely to the
second prong of the plain error rule. He has not invoked first prong plain error in
this appeal.
¶ 95 III. CONCLUSION
¶ 96 For the foregoing reasons, we conclude that the forfeited error of the sentencing
court’s consideration of the improper factor in aggravation in imposing the sentence
is not subject to review under the second prong of the plain error rule but is subject
to first prong plain error analysis. Accordingly, we affirm the judgment of the
appellate court, which affirmed the judgment of the circuit court.
¶ 97 Judgments affirmed.
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