People v. Neasom , 2017 Ill. App. LEXIS 583 ( 2017 )

2017 IL App (1st) 143875FIFTH DIVISION
September 15, 2017
No. 1-14-3875
) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No. 13 CR 8303
)
DANIEL NEASOM, )
) Honorable
Defendant-Appellant. ) James B. Linn,
) Judge Presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
Justice Gordon and Justice Lampkin concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Daniel Neasom was convicted of first degree murder
(720 ILCS 5/9-1(a)(1) (West 2010)) and sentenced to 27 years’ imprisonment. Defendant
appeals his conviction, arguing that his trial counsel was ineffective for failing to advance a
theory of second degree murder. Defendant also contends that his 27-year prison sentence is
excessive. For the reasons set forth herein, we affirm the judgment of the trial court.
¶2 Defendant was charged with two counts of first degree murder (720 ILCS 5/9-1(a)(1), (2)
(West 2010)). Defendant waived his right to a jury trial and, on July 29, 2014, and the case
proceeded to a bench trial.
¶3 At trial, Calvin Sperling testified that, on the morning of July 23, 2011, he and his co-
worker Jonathan Schutt were traveling southbound on South Kedzie Avenue after leaving a
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worksite. As he drove his truck through the 5800 block of South Kedzie, Sperling heard the
sound of breaking glass and a woman’s voice screaming for help. Schutt, who was a passenger in
Sperling’s vehicle, stuck his head out of the truck’s window and informed Sperling that a woman
was hanging out of the window of a nearby building. Seconds later, Schutt exclaimed, “Oh, my
god, she just fell from the window.” Sperling called 911 to report the incident and drove his
vehicle to an area one block north of the scene to wait for the police to arrive.
¶4 When the police arrived, Sperling and Schutt told officers what they had observed. As
Sperling was speaking to police officers, he observed a man climb out of a window located
above the woman’s body. The man was hanging from a ledge and attempted to scale the wall “as
if he was Spiderman.” The man lost his grip and fell backward onto the sidewalk below. On
cross-examination, Sperling explained that he did not observe the woman hanging out of the
window but did hear the glass break and woman scream.
¶5 Schutt testified that morning he left a worksite at the intersection of 55th Street and South
Kedzie Avenue with Calvin Sperling. As they were traveling in the 5800 block of South Kedzie,
Sperling told Schutt that he heard the sound of breaking glass, and Schutt stuck his head out of
the passenger side window to investigate the sound. Schutt noticed broken glass on the sidewalk
outside an apartment building. He looked up and observed a woman hanging headfirst out of a
window. The woman’s upper torso was completely out of the window, her arms were flailing,
and she was screaming for help. Ten to fifteen seconds later, Schutt observed the woman fall
from the window and land head-first on the sidewalk. Schutt told Sperling to call 911, and
Sperling drove his truck to a location just north of the scene.
¶6 When police arrived at the scene, Sperling and Schutt approached the officers and
described the incident. Schutt then observed a man hanging from the window out of which the
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woman had fallen. Schutt turned away because he did not want to see another person fall from
the building, but he heard the sound of the man hitting the ground.
¶7 On cross-examination, Schutt admitted that he did not observe anyone push the woman
out of the window and did not observe anyone else near the window at that time.
¶8 Michael Divorski testified that he was the brother of the woman who had fallen out of the
window, whom he identified as Cynthia Barnes. Divorski talked to Barnes the night before her
death. Barnes was homeless at the time, and told Divorski that she was going to try to find
somewhere to stay that night because it was raining.
¶9 Officer Hector Fuentes testified that, on July 23, 2011 he was conducting routine patrol
with his partner Officer Peter Gurskis. At 5:17 a.m., the officers received a “person down” call at
the location at South Kedzie Avenue. When they arrived on the scene, Fuentes observed the
body of a female, whom Gurskis recognized as Cynthia Barnes, lying on the ground, surrounded
by broken glass. Her body was located in front of an apartment building with retail units on the
first floor. Fuentes looked up and observed a shattered window on the third floor, directly above
the body. He could hear someone moving around inside the apartment building. He remained on
the sidewalk while Gurskis went inside the building to investigate. Moments later, fire
department personnel followed Gurskis into the building with a sledgehammer.
¶ 10 Fuentes could hear Gurskis and fire department personnel using the sledgehammer. He
then heard glass shatter, and looked up to observe defendant shattering a window with a clothes
iron. Defendant, who was not wearing any clothes, exited the building through the window.
Fuentes shouted at defendant, telling him to go back inside the building, and defendant climbed
back through the window. A few seconds later, defendant climbed out of the previously shattered
window directly above the body. Defendant was wearing a pair of sweat pants, and he attempted
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to climb down the building wall. Fuentes observed defendant fall from the wall, and land head-
first on the sidewalk. Paramedics rushed to assist defendant, placed him on a stretcher, and
placed him inside an ambulance.
¶ 11 Officer Fuentes heard the paramedics calling for help from inside the ambulance. He ran
to the ambulance and observed defendant flailing his arms and trying to get off the stretcher.
Fuentes assisted in holding defendant down while the paramedics restrained him. The
paramedics then transported defendant to a hospital.
¶ 12 Officer Gurskis testified that he and Officer Fuentes were on routine patrol on July 23,
2011, when they received a “woman down” call and drove to South Kedzie Avenue. There,
Gurskis observed the body of Cynthia Barnes lying on the sidewalk in front of an apartment
building. She had blood in her hair and was surrounded by broken glass. Gurskis looked up and
observed a broken window on the third floor of the building. He entered the building and
attempted to enter apartment 304, but the door was locked. He could hear someone walking on
the wooden floor of the apartment. After attempts to kick in the door failed, Gurskis called for
the fire department to come to the apartment with tools to open the door.
¶ 13 Fire department personnel arrived at the apartment door with a sledgehammer and a
prying tool. When the door was opened, the responders had to move a refrigerator that had been
placed in front of the door. Gurskis described the apartment as “in complete disarray,” with
blood all over the apartment and broken glass near the windows. After observing that nobody
was in the immediate living area, Gurskis headed toward an area of the apartment where a door
had been barricaded by a box spring and bed frame. After removing the barricades, he entered a
bedroom, where he observed two windows, one of which was broken. The broken window had
blood on it, and was situated directly above the victim’s body. After finding a large knife with
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blood on it, Gurskis left the apartment and drove to the hospital where paramedics had taken
defendant. Two days later, on July 25, 2011, Gurskis arrested defendant at the hospital.
Defendant was released without being charged, but was rearrested after DNA and toxicology
tests were completed.
¶ 14 Detective Keith Smith testified he arrived at South Kedzie Avenue to investigate the
death of Cynthia Barnes. When he arrived, Barnes’s body was still lying on the sidewalk. While
walking through the apartment, he noticed that the bedroom had two windows, one of which was
broken and situated directly above Barnes’s body.
¶ 15 Doctor Adrienne Segovia testified that she was an assistant Cook County medical
examiner and had conducted the autopsy of Cynthia Barnes. Segovia detailed numerous external
injuries that Barnes had sustained and classified them as sharp force injuries, blunt force injuries,
and injuries that had characteristics of both blunt and sharp force trauma. Notable sharp force
injuries were consistent with injuries inflicted by glass, and included: a cut on the top of Barnes’s
head and incised wounds on her face, left forearm, left wrist, left hand, and left thigh. Notable
blunt force injuries included: a star shaped wound on the top of Barnes’s head, lacerations on the
inside of her lips, bleeding of her left eye and ear, and bruises and scrapes on her face, neck,
chest, abdomen, arms, legs and feet.
¶ 16 Regarding internal injuries, Dr. Segovia detailed hemorrhages, a broken sternum, broken
ribs, dislocation and fracturing of the spine, and a fractured skull. Dr. Segovia determined that
the cause of death was multiple injuries due to a fall from a large height. She also concluded that
the manner of death was homicide.
¶ 17 On cross-examination, Dr. Segovia testified that she based her initial opinion regarding
the manner of death on information that she had at the time. Specifically, she based her opinion
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on the fact that the apartment had been barricaded, the fact that there was a knife in the
apartment, and the fact that Barnes fell out of a window. She learned this information by viewing
a police report and photographs taken by one of the medical examiner’s investigators.
¶ 18 On April 10, 2014, Dr. Segovia met with defendant’s counsel and another assistant public
defender and viewed photographs of the crime scene taken by the Chicago police department.
She had not viewed these photographs before she rendered her opinion as to the manner of death
on July 31, 2011. The photographs were marked as exhibits and shown to Dr. Segovia at trial.
¶ 19 Dr. Segovia testified that the photographs showed the apartment “in disarray,” a broken
apartment door, the outside of the apartment door marked with blood, and a knife that was found
inside the apartment. Based on these photographs, Dr. Segovia opined that Barnes was not
barricaded in the apartment.
¶ 20 Dr. Segovia also reviewed an Illinois State Police lab report which indicated that two
DNA profiles were found on the blade of the knife, from which Barnes could not be excluded.
The report also indicated that the DNA profile found on the handle of the knife matched Barnes.
This information, paired with photographs of defendant appearing to show that he had been
stabbed in the thigh two times, led Dr. Segovia to reevaluate the cause of the cuts on Barnes’s
hand. Instead of being cut by glass, it was possible that Barnes’s hand was cut when the handle
of the knife slipped out of her hand.
¶ 21 Defense counsel introduced a photograph, taken from outside the apartment building,
which showed three windows situated above a sign that was anchored to the building. Dr.
Segovia testified that the left-most window in the picture was closed. The window in the middle
of the group appeared to be open and was situated directly above the sign hanging from the
building. The window on the right was broken, and a clothes iron sat on the window sill. This
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photograph matched other photos depicting the crime scene which showed that a fourth window
had also been broken. The fourth window was separate from and situated to the right of the three
windows.
¶ 22 Based on this new evidence, which she had not considered before, Dr. Segovia changed
her opinion as to manner of death from homicide to undetermined. When asked if she had an
opinion as to the window from which Cynthia Barnes had fallen, Dr. Segovia testified that the
fracture and dislocation of Barnes’s spine could have been caused by her impacting the sign
while falling from the middle, open and unbroken, window. She clarified that this injury would
not likely have occurred if Barnes had simply fallen and hit the ground. Segovia admitted she did
not know from which window Barnes had fallen, and could not determine whether she had
fallen, jumped, or was pushed out the window.
¶ 23 After the State rested, the trial court denied defendant’s motion for a directed finding.
Defendant then proceeded by way of stipulation. First, the parties stipulated that, if called to
testify, Doctor Ellen Omi would testify that defendant had three stab wounds on his right thigh
when he was admitted to the hospital on July 23, 2011. Second, the parties stipulated that the
handle of the knife found in the apartment contained a female DNA profile that matched
Barnes’s DNA profile. A sample taken from the blade of the knife contained two DNA profiles,
one of which matched defendant. Barnes could not be excluded from the other profile. Finally,
the parties stipulated that a toxicological analysis of a blood sample from Barnes tested positive
for cocaine.
¶ 24 During closing argument, defense counsel mentioned that defendant had been stabbed
three times in the leg and that Barnes’s blood was found on the handle of the knife. She referred
to Barnes as “the attacker.” The trial court then interrupted counsel, and the following exchange
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took place:
“THE COURT: I want to make sure I understand what you’re arguing. Are you
saying that something happened in self-defense?
[DEFENSE COUNSEL]: No.
THE COURT: Are you asking this court to consider lesser included offenses?
[DEFENSE COUNSEL]: No.
THE COURT: Okay.”
¶ 25 Defendant’s counsel continued, arguing that Barnes climbed out the window to get away
after she stabbed defendant. The court again interrupted:
“THE COURT: Again, I want to ask you. I want to make sure I understand you
exactly. You’re saying she stabbed him before she went out the window. Are you asking
for consideration of lesser included offenses, are you saying there is some sort of self-
defense element going on here?
[DEFENSE COUNSEL]: No, Judge.
THE COURT: You are sure. All right.”
¶ 26 Defense counsel’s theory of the case was that Barnes either accidently fell out of or was
trying to climb out of the window. Counsel argued that both Barnes and defendant were high on
drugs at the time and that “there is no accounting for what that can cause someone to do.” She
ultimately argued that there was no evidence that defendant pushed Barnes out the window.
¶ 27 Near the end of the State’s argument in rebuttal, the court interrupted, saying:
“THE COURT: [Defense Counsel] was not arguing that [defendant’s stab wounds
were] self-inflicted. Her argument is that they were caused by Ms. Barnes prior to her
falling out the window. And she is also telling me emphatically that she does not want me
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to consider any kind of self-defense theory or lesser included offense.”
¶ 28 After passing the case so that defense counsel could speak to defendant regarding the
theory of the case, the court continued the case to another date so that defense counsel could
confer with defendant and possibly reargue the case.
¶ 29 On September 5, 2014, the trial court allowed defense counsel to reopen her closing
argument to clarify her strategy and address the court’s questions and concerns. Counsel argued
that there was circumstantial evidence that Cynthia Barnes stabbed defendant, but that the
evidence was “very, very scarce” and that if the case were being tried by a jury, she “would not
even get the [second degree murder] instruction. There is just not the evidence there.” Counsel
noted that in cases where a second degree murder instruction based on provocation was given to
a jury, there was some testimony about a fight, struggle, or mutual combat. Stating that there was
no such testimony, counsel declared that “[a]s an officer of the Court, I can’t in good faith stand
before your honor and argue for second degree, because to do so, I would have to create a story
that included self-defense and included provocation and I can’t do that because the evidence
doesn’t support it.” Noting that the State had to prove first degree murder before second degree
murder could be considered, counsel argued that the State had failed to prove defendant guilty of
first degree murder beyond a reasonable doubt.
¶ 30 In rebuttal, the State argued that the only explanation consistent with the evidence was
that defendant pushed Barnes out of the broken window and held her out the window for a period
of 10 seconds. The trial court found defendant guilty of both counts of first degree murder. It
reviewed the evidence and determined that, after some sort of quarrel, Cynthia Barnes came out
of a window head first and:
“was held for about 10 seconds, and there’s no way this woman is going to maneuver
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herself like some kind of circus performer for that period of time hanging by her toes of
her own volition, or even recklessly. The only way she could have got there is that
somebody pushed her out through the window. The only person up there was
[defendant].”
The court concluded “[t]here was some kind quarrel that happened, but whatever happened in
this case, since I’m being told not to consider any provocation or self-defense, the only way that
this woman got out the window is because [defendant] pushed her out the window.”
¶ 31 Defense counsel filed motions to reconsider and for a new trial, arguing that, even in the
face of her argument against consideration of second degree murder, the trial court could have
exercised its discretion to, sua sponte, find defendant guilty of a lesser mitigated offense.
Counsel requested that the court reconsider the facts that supported the finding of second degree
murder. The trial court declined to reconsider its finding of first degree murder. It made this
decision “in light of the fact that I was told that I couldn’t even instruct the jury on second degree
murder, and that if this were a jury trial, that she wouldn’t want that, and she would have the
absolute right *** to proceed in that fashion.” It concluded by stating “I have a woman coming
out of a window under circumstances that could only be explained by the finding of first degree
murder based on the evidence heard.”
¶ 32 At the sentencing hearing, the State presented live testimony regarding two separate
occasions in which defendant had engaged in violence against women. Regarding first instance,
Officer Collado testified that, on August 23, 2010, officers observed defendant repeatedly punch
and hit a victim as she was lying on the ground, going in and out of consciousness. Regarding the
second instance, Officer Rosalyn Sutton testified that, on June 19, 2009, she responded to a call
regarding “a naked woman hanging out of a car window.” When she arrived at the scene, she
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found a naked woman lying on the ground, covered in blood “from head to toe.” The woman,
Ericka Jackson, was rushed to a hospital. Ericka Jackson testified at the sentencing hearing that
defendant had driven her to a store to buy liquor. After drinking some of the liquor and falling
sleep, Jackson awoke to defendant beating her and threatening to kill her. Defendant forced
Jackson to engage in oral sex, and she attempted to escape the car. 1 Jackson testified that she
jumped out the window of the car, and stated that defendant kicked or pushed her as she fell out
of the car. Ericka’s sister Monica Jackson testified at the hearing that Ericka was unrecognizable
at the hospital as she was covered in blood and her face was swollen and covered with stab
wounds. After Ericka left the hospital, Monica and her family had to care for her for a week or
two, including feeding her in bed and helping her to the bathroom.
¶ 33 The State introduced victim impact statements from Cynthia Barnes’s mother, daughter,
son, and brother. Arguing in aggravation, the State noted that defendant’s criminal history
showed that defendant could not conform his conduct to the law and that the live testimony
regarding the assault of Ericka Jackson demonstrated that he was a clear and present danger to
the public. Focusing on defendant’s violent past and lack of remorse, the State requested that the
court sentence defendant to a “significant time period.”
¶ 34 Defense counsel introduced “a stack” of approximately 15 letters written by members of
the community in support of defendant. Counsel argued that, though defendant had a criminal
background, none of his convictions were for felonies and most of his convictions were related to
drugs or alcohol. At the time of his incarceration, he was suffering from alcohol and crack
cocaine addiction.
¶ 35 Counsel noted that defendant had “a very extensive” family support system, which
1
The parties later stipulated that Ericka Jackson never told detectives that defendant forced her to perform
oral sex.
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consisted of his mother, father, sister, and aunts, all of whom had been in court for a portion of
the proceedings. He was pursuing his GED while being held in this case and maintained
employment as a factory worker and painter before he was incarcerated.
¶ 36 Defendant expressed his remorse in an allocution. He also mentioned that he was now
being treated for clinical depression and that the medication was working.
¶ 37 Noting that the sentencing range for first degree murder was 20 to 60 years’
imprisonment, and considering defendant’s age, lack of felony criminal history, factors in
aggravation, and factors in mitigation, the trial court sentenced defendant to 27 years’
imprisonment. On November 20, 2014, the court denied defendant’s motion to reconsider his
sentence.
¶ 38 Defendant appeals, arguing that his counsel was ineffective for failing to advance a
theory of second degree murder. Alternatively, defendant contends that his 27-year sentence for
first degree murder was excessive.
¶ 39 Second degree murder is not a lesser-included offense of first degree murder. People v.
Wilmington, 2013 IL 112938, ¶ 48. Rather, it is more accurately described as a lesser-mitigated
offense of first degree murder. Id. A defendant can only be found guilty of second degree murder
if the State has first proven all the elements of first degree murder. 720 ILCS 5/9-2(a), (c) (West
2010); Wilmington, 2013 IL 112938, ¶ 48. Then the defendant has the burden of proving a
mitigating factor by a preponderance of the evidence. 720 ILCS 5/9-2(c) (West 2010); People v.
Fort, 2017 IL 118966, ¶ 33. However, the burden remains on the State to prove beyond a
reasonable doubt each of the elements of first degree murder and, where relevant, the absence of
circumstances justifying or exonerating the killing. 720 ILCS 5/9-2(c) (West 2010).
¶ 40 There are two possible mitigating factors: an unreasonable belief that self-defense is
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justified or the presence of an intense passion resulting from serious provocation by the victim.
720 ILCS 5/9-2(a)(1), (a)(2) (West 2010). Illinois courts have held that serious provocation may
arise from substantial physical injury or substantial physical assault, mutual quarrel or combat,
illegal arrest, and adultery with the offender’s spouse. People v. Tijerina, 381 Ill. App. 3d 1024,
1031 (2008).
¶ 41 Defendant contends counsel was ineffective in failing to advance a second degree murder
theory as her chosen strategy was based on a misapprehension of the law, specifically that only
direct evidence of mitigating factors would support a second degree murder finding.
¶ 42 “To show ineffective assistance of counsel, a defendant must demonstrate that ‘his
attorney’s representation fell below an objective standard of reasonableness and that there is a
reasonable probability that, but for counsel’s errors, the result of the proceeding would have been
different.’ ” People v. Simpson, 2015 IL 116512, ¶ 35 (quoting People v. Patterson, 192 Ill. 2d
93, 107 (2000)). A defendant must satisfy both prongs of this test, and a failure to satisfy either
prong precludes a finding of ineffectiveness. Id. Reviewing courts measure counsel’s
performance by an objective standard of competence under prevailing professional norms.
People v. Spiller, 2016 IL App (1st) 133389, ¶ 36. To establish deficient performance, defendant
must overcome the strong presumption that the challenged action or inaction might have been the
product of sound trial strategy. Id.¶ 43 Defendant’s ineffective assistance claim fails, as he is unable to show that his counsel’s
performance was deficient. It is nearly axiomatic that counsel’s choice of trial strategy is
“ ‘virtually unchallengeable’ and will generally not support an ineffective assistance of counsel
claim.” People v. Walton, 378 Ill. App. 3d 580, 589 (2007) (quoting People v. Palmer, 162 Ill. 2d
465, 476 (1994)). Furthermore, counsel’s decision to advance an all-or-nothing defense has been
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recognized as a valid trial strategy “ ‘and is generally not unreasonable unless that strategy is
based upon counsel’s misapprehension of the law.’ ” Spiller, 2016 IL App (1st) 133389, ¶ 39
(quoting Walton, 378 Ill. App. 3d at 589). This court has held that “counsel cannot be found
ineffective for failing to request that the trial court consider second degree murder, as the trial
court was empowered to consider this lesser offense regardless of counsel’s arguments.” Spiller,
2016 IL App (1st) 133389, ¶ 40.
¶ 44 Here, the trial court gave counsel multiple opportunities to clarify her theory of the case
and reevaluate her strategy of not asking the court to consider second degree murder. It even
continued the case so that counsel could confer with defendant about trial strategy. After
examining the case law and speaking with defendant, counsel decided that holding the State to its
burden of proof and arguing for a finding of not guilty was a valid trial strategy. She set out her
reasons for pursuing this trial strategy in great detail, maintaining that there was no direct
evidence that defendant laid his hands on Barnes, let alone pushed her out of a window. Counsel
argued that any scenario regarding what happened in the apartment was pure speculation and
thus insufficient to support a guilty finding.
¶ 45 Counsel correctly told the court that “you don’t even get to a second degree analysis until
and unless” the State proved first degree murder. Counsel argued the court, therefore, could not
find defendant guilty of first or second degree murder based on provocation as there was no
evidence that defendant caused Barnes’s death. On this record before us, we find that counsel’s
strategy was not based on a misapprehension of the law. See Spiller, 2016 IL App (1st) 133389,
¶ 40 (holding that counsel’s statement that “there is no compromise. There is no second degree in
this case” was not a misapprehension of the law, but an indication that he considered and
rejected a dual strategy). We find counsel’s defense was a valid trial strategy and her
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performance was not deficient. As defendant fails to meet the deficient performance prong of the
Strickland test, his claim of ineffective assistance fails.
¶ 46 Defendant also contends that his 27-year sentence for first degree murder was excessive
in light of his struggle with drug addiction, lack of felony convictions, and rehabilitative
potential. He also contends that the trial court erred by failing to consider evidence of Barnes’s
provocation and the financial impact on the state.
¶ 47 A trial court has broad discretionary powers in imposing a sentence, and its sentencing
decisions are entitled to great deference on review. People v. Alexander, 239 Ill. 2d 205, 212
(2010). This is because a trial court has a superior opportunity “to weigh such factors as the
defendant’s credibility, demeanor, general moral character, mentality, social environment, habits,
and age.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). As such, reviewing courts will not alter a
defendant’s sentence absent an abuse of discretion. Alexander, 239 Ill. 2d at 212. Our supreme
court has noted that a “ ‘reviewing court must not substitute its judgment for that of the trial
court merely because it would have weighed these factors differently.’ ” Id. at 213 (quoting
Stacey, 193 Ill. 2d at 209).
¶ 48 A sentence should reflect both the seriousness of the offense and the objective of
restoring the defendant to useful citizenship. Ill. Const. 1970, art. I, § 11; People v. McWilliams,
2015 IL App (1st) 130913, ¶ 27. The trial court is presumed to have considered all relevant
factors and any mitigation evidence (People v. Jackson, 2014 IL App (1st) 123258, ¶ 48), but has
no obligation to recite each factor and the weight it is given at a sentencing hearing. People v.
Wilson, 2016 IL App (1st) 141063, ¶11. “ ‘A sentence within statutory limits will not be deemed
excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly
disproportionate to the nature of the offense.’ ” People v. Brown, 2015 IL App (1st) 130048, ¶ 42
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(quoting People v. Fern, 189 Ill.2d 48, 54(1999)).
¶ 49 Here, defendant was convicted of first degree murder, an offense with a sentencing range
of 20 to 60 years’ imprisonment. 730 ILCS 5/5-4.5-20(a)(West 2010). The trial court sentenced
defendant to 27 years’ imprisonment. As the sentence is within the prescribed sentencing range,
it is therefore presumed to be proper. Brown, 2015 IL App (1st) 130048, ¶ 43.
¶ 50 In sentencing, contrary to defendant’s argument, the trial court expressly considered
defendant’s struggles with drug addiction, his lack of felony background, and his family and
community support system. The court then properly weighed these factors against the severity of
his crime and the “most violent death” of Cynthia Barnes.
¶ 51 Further, the court was presented with evidence of other criminal activity demonstrating
defendant’s history of violence against women, hearing from numerous witnesses the details of
his assaults on Ericka Jackson and a second, unnamed, female victim. See People v. Raney, 2014
IL App (4th) 130551, ¶43 (“ ‘[C]riminal conduct for which there has been no prosecution or
conviction may be considered in sentencing. Such evidence, however, should be presented by
witnesses who can be confronted and cross-examined, rather than by hearsay allegations in the
presentence report, and the defendant should have an opportunity to rebut the testimony.’ ”)
(quoting People v. Jackson, 149 Ill. 2d 540, 548 (1992). Although defendant had no prior felony
convictions, the extensive witness testimony at the sentencing hearing demonstrated that
defendant had previously displayed extremely violent behavior. As such, given defendant’s
background, we believe that the trial court’s imposition of a 27-year sentence for first degree
murder was not an abuse of discretion.
¶ 52 Finally, defendant asserts that the trial court failed to consider evidence of provocation
and the financial impact of defendant’s incarceration on the state. As noted above, a trial court is
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presumed to have considered all relevant factors in mitigation unless there is some indication to
the contrary. This presumption also applies to a court’s consideration of financial impact
statements. People v. Sauseda, 2016 IL App (1st) 140134, ¶ 22. Further, the court was aware of
the evidence of provocation, as demonstrated by its findings at trial that there had been “some
kind of quarrel” in the apartment. As defendant points to nothing in the trial record that indicates
the trial court did not consider evidence of provocation or the financial impact statement at
sentencing, we operate under the presumption that it did. Id.¶ 53 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 54 Affirmed.
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