People v. Phagan ( 2019 )

2019 IL App (1st) 153031
No. 1-15-3031
Opinion filed April 30, 2019
Modified on denial of rehearing July 16, 2019
Second Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) Nos. 11 CR 17961, 17962
)
TERRELL PHAGAN, ) Honorable
) Mary M. Brosnahan,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.
OPINION
¶1 Shortly after Terrell Phagan had stolen a green van at gunpoint, he tried to elude Chicago
and Illinois State Police officers during an 11-mile chase through the streets of Chicago. During
the officers’ pursuit, Phagan shot at them several times. Eventually, officers arrested Phagan
after pinning the van between one of their cars and a pole.
¶2 The State brought two cases against Phagan. In No. 11 CR 17961, the State charged
Phagan with offenses related to the car chase and his use of a gun against the officers. In No. 11
No. 1-15-3031
CR 17962, the State charged Phagan with offenses relating to his theft of the van and his use of a
gun. The trial court joined the cases for a jury trial.
¶3 In case number 17961, the jury found Phagan guilty of two counts of aggravated
discharge of a firearm and two counts of attempted murder of a peace officer. The trial court
merged the aggravated discharge counts into the attempted murder counts and sentenced Phagan
to two concurrent terms of 50 years. That sentence consisted of a 30-year base sentence for the
attempted murder of a peace officer coupled with a 20-year firearm add-on. See 720 ILCS 5/8-
4(c)(1)(A), (C) (West 2014).
¶4 In case number 17962, the jury found Phagan guilty of armed robbery, aggravated
vehicular hijacking, and aggravated possession of a stolen motor vehicle. The trial court imposed
concurrent 21-year sentences for each of the three offenses.
¶5 The trial court then ordered the concurrent 50-year sentences from one case and
concurrent 21-year sentences from the other to run consecutively, bringing Phagan’s sentence to
a total of 71 years.
¶6 Phagan’s brief contains no argument that the State failed to prove him guilty beyond a
reasonable doubt, and at oral argument his counsel confirmed that he is not challenging the
sufficiency of the evidence against him. But he raises four arguments about the fairness of the
trial proceedings and sentencing: (i) the State made a series of improper arguments in closing
statements and rebuttal that deprived him of a fair trial; (ii) the 20-year firearm enhancement
does not apply to attempted murder of a peace officer; (iii) the trial court erred by imposing
discretionary consecutive sentences; and (iv) Phagan’s 71-year sentence is excessive.
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¶7 We find no error in the conduct of closing arguments or in the imposing of consecutive
sentences. We do, however, find error in applying both the 20-year firearm enhancement and the
enhanced sentencing range for attempted murder of a peace officer and vacate the 20-year
firearm enhancement. We do not fault the trial judge, who followed published decisions from
this district in arriving at her decision. But on de novo review of the statutory text, we disagree
with the decisions of our court for reasons we explain. We vacate the 20-year firearm
enhancement but otherwise affirm Phagan’s conviction and sentence.
¶8 Background
¶9 At about 2 a.m. on October 10, 2011, Anthony Wilson was at his aunt’s house waiting for
his child’s mother to arrive. He was in the driver’s seat of a green 1999 Chevrolet Savannah van,
talking through the window with a friend. A gray Chevrolet Malibu drove up on the driver’s side
and “asked did [they] have any loud,” a term used for marijuana. Wilson told the passenger of
the Malibu that he had no marijuana, and the Malibu drove away, turning left onto South Normal
Avenue.
¶ 10 Wilson’s friend left to go across the street to his house, and the gray Malibu returned. The
same man who had asked about the marijuana got out, walked up to Wilson’s window and
pointed “like a silver .38 or .357” revolver at him. While Wilson was still seated in the van, the
man took about $100 and Wilson’s debit card. Wilson identified Phagan in court as that man.
¶ 11 Phagan then told Wilson to get out, which he did. The driver of the Malibu started
looking through the van. Phagan told Wilson to open up the back, revealing six speaker boxes
that “covered up the back, back door.” After seeing the speakers, Phagan told Wilson to “go on
down the street,” and Wilson ran four or five houses down as he “hollered [his] cousin’s name”
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so that someone would come outside. As he ran he heard a gunshot, saw a flash from a gun in
Phagan’s direction, and heard “a ding” of metal hit the gate of a fence nearby.
¶ 12 Wilson saw Phagan and the driver get back in the Malibu, so he started to run back to his
van. But the Malibu made a U-turn toward the van, and Wilson ran to his friend’s house, where
he hid behind some bushes. Wilson watched Phagan get out of the Malibu and into his van,
driving up Normal and turning onto 100th Street. Wilson called the police.
¶ 13 Chicago Police officers Sean Carroll and Michael Pantano, on patrol nearby in an
unmarked car, received a call for a “robbery in progress that was reading like a carjacking.” On
their way to the call, they saw the van and Malibu described by the dispatcher. The officers
followed both onto the entrance ramp of Interstate 57 located at 99th Street and Halsted Street.
The van and Malibu took the split toward Interstate 94 heading to Indiana; they were traveling
next to each other going 15 to 20 miles per hour below the speed limit. Eventually, the officers
activated their emergency lights, and both the van and the Malibu pulled over.
¶ 14 Officer Carroll got out of the car, and as soon as he set foot on the pavement, both the
van and the Malibu drove away. The Malibu continued on I-94, and the van took the feeder ramp
off I-94 onto Stony Island Avenue. The officers stayed with the van. At the intersection of Stony
Island and 95th Street the van attempted a U-turn. As the van turned, Carroll could see the driver
and identified him in court as Phagan. The van then headed back toward I-94, and Carroll saw
“an object which appeared to be a gun come out of the driver’s side window of the van pointing
directly back at [their] patrol vehicle.” Carroll heard “two loud pop sounds, which [he]
associated with—as being shots fired.” Concrete shot up into the air, which Carroll believed was
a result of a bullet impacting the street.
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¶ 15 Carroll and Pantano followed the van back onto I-94 toward downtown. At about 87th
Street, Carroll saw the back driver’s side window of the van shatter “with the sound of a loud
pop.” He was able to see the driver’s right hand “come back up towards the front of the [van]
holding what appeared to be the gun.” The officers continued following the van as it exited I-94
at 71st Street. Other responding officers joined Carroll and Pantano. Carroll and Pantano
maintained their position as the lead pursuit car, zig-zagging through the streets of Chicago
heading in a generally northeast direction. Carroll and Pantano eventually lost sight of the van
near the intersection of Pershing Road (39th Street) and Vincennes Avenue. Neither Carroll nor
Pantano fired their weapons.
¶ 16 Sergeant James Walsh, who had arrived at Pershing and Vincennes, watched the chase
unfold and saw “the individual in the van stick his arm out” holding what appeared to be a
weapon. Walsh fired twice at the driver, who was the only person he could see in the van,
causing the van to move around him to head east on Pershing.
¶ 17 Chicago police officers Steve Jarosz and Ryan Harty also monitored the progress of the
chase on the radio; they relocated to 38th Place and Vincennes and saw police cars following a
green van. Eventually, at about 38th Place and Langley Avenue, Jarosz and Harty took over as
lead car. At the time they were able to see that someone was in the driver’s seat, but not the
individual’s face.
¶ 18 While Jarosz and Harty were still on Langley, “[a]t that point, it was one shot, and that
shot, just by [Jarsoz’s] experience, and the echo came right at [them], at [their] car, above [their]
car. [Jarosz] didn’t know where the shot went, but that’s what happened, and the car continued
*** southbound on Langley.” Jarosz could tell that the shot came from directly in front of them
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and could not see any cars other than the van. Jarosz heard shots from other directions. The van
turned east onto Pershing, and Jarosz and Harty pulled back from their pursuit. Neither officer
fired.
¶ 19 Officer Jaysen Orkowski had been parked directly across a small grassy area from where
Jarosz and Harty joined the chase. He saw the van turn south onto Langley from 38th Place, and
his partner “floored it” to try to intercept the van. Orkowski saw the driver “stick out a gun,” a
silver revolver, over his left shoulder pointing it at the car behind the van. Orkowski fired three
times, but the van did not stop. Orkowski and his partner, while not the lead car, joined the chase
as the van turned east onto Pershing.
¶ 20 Officers Eric Taylor and Ayokunle Akinbusuyi arrived at the intersection of Pershing and
Langley. Taylor and Akinbusuyi started to turn north onto Langley when Taylor saw the driver
in the van “reach over out of the window” with what appeared to be a gun and heard what he
believed to be a gunshot. Taylor and Akinbusuyi backed up onto Pershing; the van started
driving toward them. Taylor saw the van’s driver reach his arm toward an open window “and
[he] believe[d] [he] heard a gunshot.” Despite Taylor firing six shots and Akinbusuyi firing three
to five shots, the van did not stop and continued east on Pershing.
¶ 21 The van reached 750 East Pershing, where Sergeant James Walsh was parked. Walsh
heard “a large amount of gunfire” and saw the van coming toward him “a matter of seconds”
later. Walsh also fired into the van, but the van did not stop.
¶ 22 Less than a block away, Officer Angelo New and his partner had arrived at the
intersection of Pershing and Cottage Grove Avenue. After hearing “multiple gunshots to the
west,” New saw the van driving toward him at a “high rate of speed.” New fired one round from
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his gun into the van, which caused the driver to almost lose control but ultimately did not deter
him. New watched as the van and “a barrage of police cars” continued driving east.
¶ 23 Lieutenant Christopher Kapa, who had been parked next to New and his partner, took
over as the lead pursuit car. The van went from Pershing onto Lake Shore Drive, eventually
taking the exit for the Interstate 55 ramp going west. Instead of continuing on the interstate, the
van exited at State Street, turning south. After zig-zagging from State Street, to 26th Street, to
Martin Luther King Jr. Drive, to 29th Street, the van eventually came to a stop in a parking lot at
3001 S. Vernon Avenue.
¶ 24 Officer Pablo Mariano’s vehicle, driven by Sergeant Lopez, had become the lead pursuer
at about 31st Street and Lake Shore Drive. As the van exited I-55 at State Street, he saw the
driver “motion[ ] several times with his right hand an object, chrome object, which he was
driving, he was attempting to aim at us several times.” Mariano fired twice at the van to no avail.
As the van turned from 26th Street onto Martin Luther King Jr. Drive, Lopez attempted to bump
it with his car. The van wobbled but continued to the S. Vernon parking lot, where Lopez
bumped the van again, this time wedging it between his car and a pole. Lopez testified that he
pulled Phagan out of the driver’s seat and placed him under arrest.
¶ 25 Chicago police forensic investigator Carl Brasic arrived at the scene and collected
evidence from the interior of the van. He recovered “a six-inch barreled 357-magnum revolver
on the floor of the driver’s seat.” Five of the six bullets had been fired. Brasic also swabbed the
gun for DNA. The parties stipulated that Illinois State Police forensic analyst Ryan Paulsen
would testify that the DNA on the revolver was a mix of at least two people but was “potentially
incomplete and not suitable for comparison.”
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¶ 26 Through a combination of testimony and stipulations, the record indicates that (i) no
fingerprints suitable for comparison were found on the cartridge casings from the revolver in the
van; (ii) DNA swabs from inside the van revealed a mixture of at least three people and one
profile from which Phagan could be excluded; (iii) gunshot residue (GSR) tests of Phagan’s
hands indicated that he “may not have discharged a firearm” and, if he did, “then the particles
were removed by activity, not deposited, or not detected”; (iv) the GSR test to the front driver
area of the van indicated that the area had come into contact with GSR or was in the environment
of a discharged firearm; and (v) officers recovered two shirts from Phagan, one of which was
negative for GSR and one of which had GSR particles in the shirt’s upper area. (The presence of
GSR does not necessarily mean that a person fired a gun.)
¶ 27 Forensic analysis also went to each location on the route of the chase where officers had
fired their guns. In total, at least 18 cartridge casings and bullets were traced to the various
officers’ firearms. Of those, five bullets were found in the van. Four were conclusively linked to
officer firearms, and one was consistent with a 9 mm/.38 caliber, but could not be definitely
traced to an officer’s gun.
¶ 28 Phagan testified in his own defense. He explained that he was in the area of 10010 South
Normal at about 2 a.m. on October 10, 2011, to buy a McDonald’s Monopoly game piece from a
man he knew only as “Black Boy.” Black Boy had arranged the purchase of the highly coveted
Boardwalk playing piece from an unknown woman for $2500 to $3500. Phagan arrived in the
gray Malibu with his friend Jay, but the woman had not yet appeared.
¶ 29 After being told to wait for 20 to 30 minutes, Jay started playing dice with the five or six
other men that were gathered there, including Anthony Wilson. After Jay won some money and
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it became apparent that the woman with the Monopoly piece was not coming, Phagan and Jay
tried to leave. One of the men, apparently disgruntled over Jay’s success at dice, told them they
could not leave, pulled out a gun, and held it to Phagan.
¶ 30 Phagan was able to push the man with the gun away and run behind a car. As soon as
Phagan pushed him, the man fired a shot. As Phagan hid, he heard tires screeching and saw the
gray Malibu drive away. Thinking Jay had left him, Phagan got into the green van because he
“felt like it was [his] only way off the block.” As Phagan attempted to maneuver the van, he
heard another shot, and the passenger window blew out. Phagan was able to put the van into
drive when the man with the gun came up to the passenger side, put his arm in the van, and fired
the gun again.
¶ 31 Phagan pulled onto 100th Street and saw the gray Malibu parked there, Jay in the driver’s
seat. They both drove off and eventually made it to the expressway where they were pulled over
by the police. After one of the officers got out of the police car, Phagan drove off again. Asked to
explain why he fled from police he said: “I was thinking when I had pulled off the block when
the guy stuck his arm in the window and I heard a thump, I thought I had ran, like, maybe his leg
over or something ***. So when I was on the expressway and the police pulled me over, I’m
thinking, like, okay, I don’t want to go back to jail.” Phagan explained that, during the time the
police were chasing him, he was able to hear sirens and “some shots” but he did not remember
most of the chase. Phagan denied ever shooting at the officers and testified that the gun found in
the van was the same gun that the man had used to shoot at him back on South Normal.
¶ 32 During closing arguments, while discussing the firearm evidence collected, the State
argued: “The Defendant is literally caught at 3001 South King in the stolen vehicle with a
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smoking gun.” Defense counsel objected, and the court overruled him. Defense counsel then
presented his closing argument to the jury, repeatedly arguing that the officers have “got to be
justified taking 25 shots at the van.” Counsel argued that many of the officers’ explanations
about hearing gunshots from the van were to “justify [the officers’] actions” because “when
they’re [sic] shots fired, and the officers get into position pretty much have a green light to fire
shots and that’s what it comes down to.” In rebuttal, the State argued that it did not matter that
there were minor inconsistencies in some of the officers’ testimony because “[w]ouldn’t it be
suspect if it was all exactly the same, if everybody saw the same thing[?] They’re just doing their
job. They’re out there serving and protecting. We ask them to do that. We need the police.”
Again, defense counsel objected, and the trial court overruled his objection. Finally, in regard to
Phagan’s testimony, the State argued in rebuttal: “Again make absolutely no mistake about it.
It’s ridiculous what he told you. Don’t believe it for a second. He has so much to lose. That’s
why he’s doing it.” Again, the trial court overruled defense counsel’s objection.
¶ 33 In case number 17961, the jury found Phagan guilty of attempted first degree murder of
officers Carroll and Pantano. The jury also found, in response to a special jury question, that the
State had proved that Phagan personally discharged a firearm during each of those offenses. The
jury also found Phagan guilty of two counts of aggravated discharge of a firearm, again as to
officers Carroll and Pantano.
¶ 34 In case number 17962, the jury found Phagan guilty of armed robbery and aggravated
vehicular hijacking of Anthony Wilson, but the jury found that the State had not proven that
Phagan personally discharged a firearm during those offenses. The jury also found Phagan guilty
of aggravated possession of a stolen motor vehicle.
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No. 1-15-3031
¶ 35 In a motion for a new trial, Phagan reasserted the argument that he had made before trial
that it was error to allow the State to seek enhancements for attempted murder based on both the
status of the victims as peace officers and the discharge of a firearm. The motion also argued that
the State improperly referred to a “smoking gun” during its closing argument and improperly
bolstered the credibility of the police officers’ testimony during rebuttal. The motion made no
mention of defense counsel’s objection to the State’s comments about Phagan’s testimony. After
hearing argument, the court denied the motion.
¶ 36 At sentencing, Phagan’s mother testified that she and Phagan’s grandmother had shared
the responsibility of raising him. Phagan had made it to eighth grade and then dropped out. He
worked for his uncle doing landscaping for about two-and-a-half years. At the end, she asked the
judge to be lenient because “Terrell made a mistake, and I think we are all entitled to make a
mistake.”
¶ 37 The State, in aggravation, called Detective Grossman from the Sauk Village Police
Department. He testified that in July of 2008, he went to a gas station in response to a call about
a stolen vehicle in the parking lot. When he got there, he tried to get the two occupants out of the
car, but they refused and drove off. The driver drove erratically, including through construction
zones, sometimes at speeds “[i]n excess of 110 miles an hour.” The passenger leaned out and
fired a gun at the officer, causing him to lose control of his car and crash. The second police car
also eventually dropped out of the pursuit. Officers found the stolen car abandoned in Chicago.
After Phagan was arrested, he admitted to officers that he had been the driver of the fleeing car
and knew that it had been stolen. Phagan also admitted that he knew the passenger had a gun.
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¶ 38 Referring to Phagan’s 2008 case, the court considered it “eerily similar to the one here
before the court” and noted that Phagan had been on parole for that offense when he committed
this one. And the court could not say that Phagan’s conduct would be unlikely to recur.
Accordingly, the trial court found that Phagan’s behavior put “countless people” in harm’s way
and that Phagan made “decision after decision” to keep going even though he could have stopped
at any time.
¶ 39 In case number 17961, the court imposed a 50-year sentence on each count of attempted
first degree murder. Each sentence consisted of 30 years for the attempted murder of a peace
officer plus a 20-year firearm enhancement for Phagan’s personal discharge of a firearm. The
court ordered each 50-year sentence to run concurrently. The court previously had merged the
aggravated discharge offenses into the attempted murder offenses.
¶ 40 In case number 17962, for each of the three offenses on which the trial court found
Phagan guilty, the court imposed a 21-year sentence to run concurrently.
¶ 41 The trial court found that “[Phagan’s] actions ha[ve] put countless individuals in danger,
both from what occurred in 2008 and certainly with the continuing course of criminal conduct in
this case. So it is the court’s view that consecutive sentences in this case are required to protect
the public from further criminal conduct by the defendant.” The court ordered the 50-year
sentence in case number 17961 to run consecutively to the 21-year sentence in case number
17962, leading to a total sentence of 71 years in the Department of Corrections. Phagan’s motion
to reconsider sentence was denied.
¶ 42 Analysis
¶ 43 Prosecutorial Misconduct
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¶ 44 Phagan takes issue with three statements the prosecutor made during closing arguments.
He claims that the State misstated the evidence when it argued “[t]he Defendant is literally
caught at 3001 South King Drive in the stolen vehicle with the smoking gun.” He claims that the
State, in rebuttal, improperly vouched for its police officer witnesses when it argued “[t]hey’re
just doing their job. They’re out there serving and protecting. We ask them to do that. We need
the police.” Finally, he claims that the State improperly disparaged his own testimony when it
argued “it’s ridiculous what [Phagan] told you. Don’t believe it for a second. He has so much to
lose. That’s why he’s doing it.”
¶ 45 The State contends that all of its closing arguments were proper and any error would be
deemed harmless. As to the “smoking gun” argument, the State asserts that the term was used
figuratively and was supported by the evidence because Phagan was found with a gun after
officers saw him fire one. As to Phagan’s bolstering claim, the prosecutor was simply stating
common knowledge supported by the facts and in response to defense counsel’s argument
implying that the officers had lied to justify their actions. Finally, as to Phagan’s claim that the
State disparaged his testimony, the State initially argues that Phagan forfeited the claim by not
including it in Phagan’s posttrial motion; on the merits, the State contends commenting on a
defendant’s credibility is fair game and material inconsistencies in the testimony supported the
comments.
¶ 46 Standard of Review
¶ 47 Both parties acknowledge that there is a “conflict” or “split in authority” surrounding the
standard of review for claims of prosecutorial misconduct in closing argument. In 2007, the
Illinois Supreme Court said, “Whether statements made by a prosecutor at closing argument
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were so egregious that they warrant a new trial is a legal issue this court reviews de novo.”
People v. Wheeler, 226 Ill. 2d 92, 121 (2007). Before that, our supreme court had said “[t]he
regulation of the substance and style of the closing argument is within the trial court’s discretion,
and the trial court’s determination of the propriety of the remarks will not be disturbed absent a
clear abuse of discretion.” (Internal quotation marks omitted.) People v. Blue, 189 Ill. 2d 99, 128
(2000). These seemingly contradictory statements have led to differences of opinion among the
appellate court districts as to which decision controls. See People v. Green, 2017 IL App (1st)
152513, ¶ 80 (collecting cases).
¶ 48 Phagan argues that under any standard of review the prosecutor’s arguments constitute
error. The State argues that any errors were harmless and asks us to adopt an abuse of discretion
standard to review the initial question of whether there was error at all. We agree that the abuse
of discretion standard is the correct one and join the decisions of other courts that have held
similarly. E.g., People v. Averett, 381 Ill. App. 3d 1001, 1007 (2008); People v. Love, 377 Ill.
App. 3d 306, 313 (2007).
¶ 49 Because both Blue (abuse of discretion) and Wheeler (de novo) are decisions from our
supreme court, we must explain our decision to choose one over the other. It cannot be
understated that, in the context of alleged impropriety in argument, the pedigree for an abuse of
discretion standard spans more than a hundred years. E.g., People v. McCann, 247 Ill. 130, 170-
71 (1910); Bulliner v. People, 95 Ill. 394, 405-06 (1880). Of the many cases decided around the
turn of the twentieth century, North Chicago Street Ry. Co. v. Cotton, 140 Ill. 486 (1892),
provides one of the most comprehensive accounts of the reasons courts apply the abuse of
discretion standard in this context. We note that Cotton was a civil case but has since been
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incorporated by citation into many criminal decisions. E.g., People v. Smothers, 55 Ill. 2d 172,
176 (1973).
¶ 50 The court in Cotton, adopting an abuse of discretion standard, focused on the presence of
the trial judge during the entirety of the proceedings. 140 Ill. at 502. Because the trial judge is
present for the entire trial, he or she has the benefit of “hearing the remarks of counsel on both
sides” and is better situated to determine whether anything that happened or was said justifies the
challenged remark. Id. “Every reasonable presumption must be indulged in that the trial judge
has performed his [or her] duty, and has properly exercised the discretion vested in him [or her]
***.” Id. at 503. We add to Cotton’s observations that the trial judge is also in a superior position
to observe the tone of the advocates, the apparent impression of the remarks on the jurors, and
the rhetorical impact that a passing remark may or may not have had in the broader context of
counsel’s entire argument. As judges of a reviewing court, the “dry” record provides us with
none of these benefits.
¶ 51 A claim that a de novo standard of review applies does not enjoy similar historical
support. In Wheeler, 226 Ill. 2d at 121, our supreme court pointed to People v. Graham, 206 Ill.
2d 465 (2003), as authority for announcing a de novo standard of review. But, as precedents go,
Graham is far from helpful. There, the defendant claimed both that he had been denied a fair trial
because the State elicited testimony about his postarrest silence at trial and that the prosecutor
erred in bringing that silence up during closing arguments. Id. at 474. The court then said, “We
review this legal issue de novo,” making no differentiation between the distinct claims the
defendant had raised. Id.
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¶ 52 That would be confusing enough, but the court declined to conduct an analysis on the
merits of either of those arguments. The defendant had forfeited both claims by failing to object
to either the testimony or the State’s closing argument. Id. at 475. The court found that neither
prong of plain error saved the defendant from forfeiture. Id. at 475-76. Ultimately, the question
the court answered was whether the defendant’s forfeiture could be excused on the ground that
counsel had performed ineffectively, and the court concluded that counsel had performed
effectively. Id. at 476-77. Questions of ineffective assistance of counsel are reviewed de novo.
People v. Demus, 2016 IL App (1st) 140420, ¶ 27. Reading Graham, therefore, provides no
clarity as to whether it applied a de novo standard of review to the prosecutorial misconduct
claims—claims it did not decide—or to the ultimate ineffective assistance claim that it did
decide.
¶ 53 Assuming that Graham was applying a de novo standard of review to the prosecutorial
misconduct claim, it would be the last link in a remarkably brief chain of precedent. The case on
which Graham relied for its finding of a de novo standard of review had nothing to do with
claims of prosecutorial misconduct. See People v. Carlson, 185 Ill. 2d 546, 551 (1999). Rather,
that case raised the question of whether the trial court erred in denying a defendant’s motion to
suppress evidence. Id. Again, like claims of ineffective assistance of counsel, the determination
of whether suppression is warranted presents a question of law requiring de novo review. People
v. Colyar, 2013 IL 111835, ¶ 24. The ultimate source of Wheeler’s conclusion about the standard
of review involved a case examining a distinct substantive area of law.
¶ 54 We conclude that Blue, applying an abuse of discretion standard to claims of
prosecutorial misconduct in closing argument, properly invoked over a century of Illinois
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Supreme Court precedent. Wheeler, applying a de novo standard of review, imported that
standard with no explanation from cases that are either unclear or that analyze dissimilar claims.
We follow Blue and review claims of prosecutorial misconduct in closing arguments under the
abuse of discretion standard.
¶ 55 Misstatement of Evidence
¶ 56 Phagan first claims that the prosecutor misstated the evidence in closing argument by
saying “[t]he defendant is literally caught at 3001 South King Drive in the stolen vehicle with the
smoking gun.” While a prosecutor has wide latitude to make closing arguments, those arguments
cannot be based on a misstatement of the evidence. People v. Jackson, 2012 IL App (1st)
102035, ¶ 18. A single misstatement does not necessarily deprive a defendant of a fair trial
unless the remark “ ‘result[s] in substantial prejudice to the defendant and constitute[s] a material
factor in his conviction.’ ” Id. (quoting People v. Brooks, 345 Ill. App. 3d 945, 951 (2004)).
¶ 57 The parties’ dispute centers on competing readings of Jackson, and we find resolving
their dispute resolves this issue. In Jackson, the defendant was convicted of aggravated unlawful
use of a weapon, which required the police to prove that he knowingly possessed a firearm. Id.
¶¶ 1, 19. Officers pulled Jackson over for a traffic stop, and one of them saw a bag of cannabis in
the center console. Id. ¶ 6. When they asked Jackson to step out of the car, Jackson “made an
aggressive, quick motion,” started the car, and tried to put it in drive. Id. ¶ 9. The officers ordered
him out of the car again, and after he and the passenger complied, they found a gun on the
driver’s side of the car under the floor mat along with a larger bag of cannabis. Id. ¶¶ 7, 10.
Jackson testified that he did not know about the gun in his car and had never seen it there. Id.
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¶ 13. During rebuttal, the prosecutor argued that in “ ‘Defendant[’s] own words, he told the
officers he found a gun in his car.’ ” Id. ¶ 18.
¶ 58 The court found the prosecutor’s argument to be an obvious misstatement of the
evidence, seeing as the defendant had repeatedly denied knowing about the gun in his car. Id.
¶¶ 17, 20. The court went on to find prejudice because the question at the heart of Jackson’s case
was not only whether a gun was in the car but whether Jackson knew about it. Id. ¶¶ 19-20. The
only evidence of knowledge was circumstantial evidence based on the officer’s testimony that
Jackson had turned his car back on and tried to put it in drive. Id. ¶ 19. That testimony was
disputed too. Id. In short, no direct or physical evidence showed that Jackson knew the gun was
in his car. Id. ¶¶ 17, 20.
¶ 59 Phagan and the State initially dispute whether the prosecutor actually misstated the
evidence. Jackson guides us because there the prosecutor made a claim (the defendant confessed
to knowing about the gun) that was directly contradictory to the defendant’s testimony and his
entire theory of the case (he did not know about the gun). Id. ¶¶ 19-20. Here, the alleged
inaccuracy is less clear. As the State points out, citing Merriam Webster’s online dictionary, the
term “smoking gun” carries a widely known colloquial meaning. Indeed the only definitions of
the phrase provided are “something that serves as conclusive evidence or proof (as of a crime or
scientific theory)” or “a piece of evidence that clearly proves who did something or shows how
something happened.” See Merriam-Webster’s Online Dictionary, https://www.merriam-
webster.com/dictionary/smoking%20gun (last visited Apr. 18, 2019) [https://perma.cc/NLY9-
J7WD].
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No. 1-15-3031
¶ 60 We are not persuaded by Phagan’s argument that the prosecutor misstated the evidence
because the gun was not currently hot or issuing smoke when the officers discovered it. The
jurors heard the testimony about the points during the chase at which the driver fired the gun.
They were well aware that the driver was not observed firing the gun immediately before the
chase ended. The plain meaning of the prosecutor’s argument, under any reasonable
interpretation, was figurative: the police officers found a gun at the feet of the driver’s seat in the
van where, several moments before, the driver was seen firing a gun. Based on the evidence
presented, the State was entitled to argue to the jury that the discovery of the gun was
“conclusive evidence or proof” of the officers’ testimony that they had seen the driver of the van
fire the gun.
¶ 61 Even if we were to find that the prosecutor misstated the evidence by using the phrase
“smoking gun,” we would not find any prejudice like the court did in Jackson. Unlike the court
in Jackson, we are not evaluating proof of a subjective mental state that can only be shown by
circumstantial evidence. The prosecutor’s argument spoke to one question: Did Phagan fire the
gun found in his car? Multiple witnesses testified that they saw the driver of the van shoot at
them. Officer Pantano even testified that, at the time the driver shot at him and Officer Carroll,
he could see the driver, whom he identified as Phagan. Additionally, even if the witnesses who
saw the driver fire a gun could not see his face, it is undisputed that only Phagan occupied the
van during the chase.
¶ 62 Additionally, unlike Jackson, we are not confronted with a complete lack of physical
evidence surrounding the disputed remark. Illinois State Police analyst Ellen Chapman testified
that she found gunshot residue from the driver area. She also found gunshot residue on Phagan’s
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No. 1-15-3031
white short-sleeved T-shirt. We acknowledge that Chapman testified that the presence of gunshot
residue does not necessarily mean the person came in contact with it by firing a gun. But the
gunshot residue testimony must be taken in conjunction with the facts that officers saw the driver
firing the gun and it is undisputed that Phagan was the driver.
¶ 63 The gun was not literally smoking; it was “smoking gun” evidence, and we find no error.
Regardless, any error that may exist would not have prejudiced Phagan.
¶ 64 Bolstering
¶ 65 Phagan next argues that the prosecutor committed misconduct by improperly bolstering
the credibility of the State’s witnesses. During rebuttal the State argued, referring to the police
officers: “They’re just doing their job. They’re out there serving and protecting. We ask them to
do that. We need the police.” According to Phagan, the prosecutor’s argument “attempted to
bolster the credibility of the State’s witnesses based solely on their status as officers, resulting in
grave prejudice to Phagan, as the entire case hinged on the jury’s credibility determinations.”
¶ 66 The State counters that the prosecutor did not bolster its witnesses because the prosecutor
did not inject personal beliefs and instead “made benign, accurate, common knowledge
statements about the job of police officers.” As an alternative argument, the State says that the
defense counsel’s argument “provoked or invited” the prosecutor’s rebuttal.
¶ 67 The hallmark of improper bolstering involves an expression of a prosecutor’s personal
belief in the credibility of a witness. See People v. Rogers, 172 Ill. App. 3d 471, 476 (1988);
People v. Townsend, 136 Ill. App. 3d 385, 394 (1985) (improper to “place[ ] the weight of the
State’s Attorney’s office behind the credibility of the State’s witnesses”). Even where a
prosecutor does not explicitly state his or her personal beliefs about witness credibility, “repeated
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No. 1-15-3031
references to [a witness’s] status as a police officer and a sworn deputy” nonetheless can amount
to improper bolstering. See People v. Ford, 113 Ill. App. 3d 659, 662 (1983).
¶ 68 Phagan argues that the prosecutor’s comments during rebuttal were “very similar to those
that were found to be reversible error in Ford and Rogers.” We disagree. In Ford the prosecutor
compared one of the officers involved to the defendant, describing the officer as a person “ ‘of
impecable [sic] credentials’ ” and the defendant as a person who “ ‘her own community didn’t
trust.’ ” Id. at 661. The prosecutor went on to ask the jury, “ ‘Why would [the officer], a sworn
Warren County Deputy, pull a charade like this and lie and perjure herself for a lousy 15 gram
purchase of marijuana?’ ” Id. at 662. The court found these comments “exceeded the boundaries
of proper argument.” Id. The prosecutor in Ford directly linked the witness’s status as an officer
and her credibility.
¶ 69 The prosecutor went further in Rogers, arguing, “ ‘What can I say about [the officers],
seasoned veterans on the police force. Credibility untouchable. Important testimony.’ ” 172 Ill.
App. 3d at 476. Again, like in Ford, the prosecutor in Rogers directly linked the witnesses’ status
as officers with their credibility: “ ‘You take all the evidence in consideration and look at the
testimony of the witnesses and believe me you look at [the officers] and they won’t get on the
stand and lie and make up something.’ ” Id. at 477. “[T]aken in context,” according to the
opinion, the State had improperly attempted to inject its personal views about the credibility of
its officer witnesses. Id.
¶ 70 When we view the prosecutor’s statements in Phagan’s case, particularly when we view
them in context, we do not find similar error. The entire paragraph of transcript containing the
disputed statements reads:
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No. 1-15-3031
The pursuit is fluid. The officers see different things at different times.
Everybody sees different things at different times. Wouldn’t it be suspect if it was
all exactly the same, if everybody saw the same thing[?] They’re just doing their
job. They’re out there serving and protecting. We ask them to do that. We need
the police.”
In context, the prosecutor appears to be attempting to explain the reason that officers would
testify with slight variations even though they viewed the same event. We cannot say, in light of
the guidance offered by Rogers and Ford, that the prosecutor’s comments amount to improper
bolstering. We do not, however, share the State’s view that these comments embody entirely
“benign, accurate, common knowledge statements about the job of police officers.” In particular,
the addition of “[w]e ask them to do that” and “[w]e need the police” to the end of this portion of
the argument carries the risk of implying to the jury that they should take the officers’ testimony
more seriously because officers perform critical societal functions.
¶ 71 While we could say that the prosecutor’s comments verged on the improper when read on
their own, we also agree with State that defense counsel’s argument invited the remarks. See,
e.g., People v. Vargas, 409 Ill. App. 3d 790, 797 (2011) (“prosecutor’s remarks on rebuttal will
not be deemed improper where the record reveals they were the product of defense counsel’s
provocation or invitation”). Defense counsel’s theme sought to demonstrate the officers only said
that there were shots fired from the van to justify their own decisions to shoot their weapons.
When referring to the shots fired by officers Taylor and Akinbusuyi, counsel argued that “you
got to say that you see something in order to justify these actions” and went on to argue, “[the
officers] don’t see any muzzle flashes from the van. They don’t see any flashes of light. But
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No. 1-15-3031
they’re firing away because you got to justify your actions.” Immediately after that argument,
this time referring to officer New, counsel argued he heard shots fired and “when [he] saw the
van, [he] fired off a shot. Got to justify [his] actions. Got to say something.” Counsel rounded
out the argument: “Basically when they’re [sic] shots fired, and the officers get into position
pretty much have a green light to fire shots and that’s what it comes down to.”
¶ 72 Phagan’s counsel’s entire characterization of the officers’ testimony sought to convey
that the officers only testified as to what they saw and heard shots from the van to justify the
shots they took; in other words, the officers lied to avoid getting in trouble for shooting at the
van.
¶ 73 In light of defense counsel’s characterization of the officers’ testimony we do not find
statements like “[t]hey’re out there serving and protecting,” “[w]e ask them to do that,” and
“[w]e need the police,” to establish improper bolstering. If anything, the State engaged in an
attempt to rehabilitate the officers after defense counsel strongly implied that they lied to save
themselves from some kind of liability. More importantly, we find that overruling Phagan’s
objection to this line of argument was not an abuse of discretion.
¶ 74 Phagan’s Credibility
¶ 75 Phagan maintains that the prosecutor improperly “attack[ed]” Phagan’s credibility by
arguing, “it’s ridiculous what [Phagan] told you. Don’t believe it for a second. He has so much to
lose. That’s why he’s doing it.” In particular, Phagan claims that these remarks referenced his
possible punishment, which a prosecutor cannot do. See People v. Cisewski, 118 Ill. 2d 163, 177
(1987). The State initially responds that the claim has been forfeited, having not been specifically
listed in the posttrial motion. The State goes on to argue that the claim fails on the merits because
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No. 1-15-3031
the prosecutor may permissibly comment on any witness’s credibility, even the defendant’s
when the defendant chooses to testify. See People v. Kirchner, 194 Ill. 2d 502, 549 (2000)
(“State may challenge a defendant’s credibility and the credibility of his theory of defense in
closing argument when there is evidence to support such a challenge”).
¶ 76 We agree with the State that Phagan forfeited this argument by failing to include it in his
posttrial motion. To preserve an issue for review, a defendant must object to the alleged error
when it occurs and raise the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186
(1988). In terms of claims about prosecutorial misconduct in argument, a defendant must include
each claimed error in the posttrial motion not just a general claim of misconduct. See Love, 377
Ill. App. 3d at 312-13 (distinguishing between alleged errors that were and were not included in
defendant’s posttrial motion). Defense counsel certainly objected to the State’s comments about
Phagan’s credibility during the rebuttal argument, but those comments are not claimed errors in
the motion for a new trial. Strictly applying Enoch, Phagan’s claim has been forfeited.
¶ 77 We could excuse Phagan’s forfeiture and consider this claim on the merits (see People v.
Perry, 2014 IL App (1st) 122584, ¶ 20 (forfeiture a limit on parties, not court)), but defense
counsel on appeal does not use his reply brief to respond to the State’s forfeiture argument or
contend that there are any grounds on which we could excuse his forfeiture. See People v.
Ramsey, 239 Ill. 2d 342, 412 (2010) (proper to raise plain error for first time in reply brief). At a
minimum, counsel has forfeited any response to the State’s forfeiture argument. See Ill. S. Ct. R.
341(h)(7) (eff. May 25, 2018). Because trial counsel’s failure to include this claim in Phagan’s
posttrial motion results in forfeiture and because appellate counsel does not ask us to excuse that
forfeiture, we decline to address this claim on the merits.
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No. 1-15-3031
¶ 78 In sum, the trial court did not abuse its discretion when it overruled Phagan’s objections
to the prosecutor’s arguments about “smoking gun” evidence and the officers’ motives for
testifying. Phagan’s claim that the prosecutor improperly disparaged his testimony has been
forfeited and counsel makes no argument that we can review that claim for plain error. Finding
no error in the prosecutor’s argument, we affirm Phagan’s convictions.
¶ 79 Firearm Enhancement
¶ 80 Phagan goes on to mount several attacks on his sentence, first claiming that the 20-year
firearm add-on imposed on his sentence for attempted murder of a peace officer does not apply
to that offense. The statute defining attempt offenses in Illinois contains a separate provision
outlining specific sentencing requirements for attempted first degree murder. As a baseline, the
statute requires attempted first degree murder to be sentenced as a Class X offense, carrying a
sentencing range of 6 to 30 years. 720 ILCS 5/8-4(c)(1) (West 2014); 730 ILCS 5/5-4.5-25(a)
(West 2014).
¶ 81 If the victim is a peace officer, the statute extends the sentencing range to 20 to 80 years.
720 ILCS 5/8-4(c)(1)(A); 9-1(b)(1) (West 2014). If the defendant personally discharges a firearm
during the commission of the offense, the statute requires the imposition of an additional 20
years. Id. § 8-4(c)(1)(C).
¶ 82 Phagan argues that the 20-year enhancement for personally discharging a firearm does
not apply to his conviction for attempted first degree murder of a peace officer because the plain
language of the attempt statute only allows the court to impose one enhancement or the other, not
both. Phagan relies on a decision of this court, People v. Douglas, 371 Ill. App. 3d 21, 26 (2007),
which held that once a court applies the status-based enhancement in subsection (A), it cannot
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No. 1-15-3031
apply any of the others. Phagan acknowledges that, since Douglas, two other panels of this court
have rejected it and held that both the status-based and firearm-based enhancements can be
applied to a single sentence. People v. Smith, 2012 IL App (1st) 102354, ¶¶ 107-16; People v.
Tolentino, 409 Ill. App. 3d 598, 603-06 (2011). He asks us to depart from those decisions.
¶ 83 The State asks that we follow Smith and Tolentino and find that the plain language of the
statute allows for imposing both the status-based and firearm-based enhancements to attempted
first degree murder. According to the State, no language in the statute indicates that these
enhancements are mutually exclusive, and applying both keeps with the General Assembly’s
intent to punish offenses more harshly when the offender uses a gun.
¶ 84 Before the filing of the State’s brief and Phagan’s reply brief, another panel of this court
weighed in. The court in People v. Jackson, 2018 IL App (1st) 150487, joined Smith and
Tolentino to reject the reasoning in Douglas. We disagree with the conclusion in Jackson
because we find its statutory analysis to be incomplete. We also disagree with the conclusions in
Smith and Tolentino because both cases analyzed the statute as it existed before the General
Assembly made a consequential amendment.
¶ 85 We agree with the court’s conclusion in Douglas, though for different reasons. We hold
that the plain language of section 8-4(c)(1) of the attempt statute does not allow for imposing
more than one of the exceptions in subsections (A)-(E). Therefore, we vacate the application of
the 20-year firearm enhancement in subsection (C) to Phagan’s sentence for attempted first
degree murder.
¶ 86 We begin our analysis with a significant point that the parties do not dispute: the statutory
subsections are sentencing enhancements and do not lay out unique elements for separate
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No. 1-15-3031
offenses. We pause to explain our agreement with that proposition due to Douglas, on which
Phagan relies, possibly suggesting that the enhancements are elements of unique offenses. In
Douglas, the court discussed the legislative purpose behind the enhancements for attempted
murder of a peace officer and described the General Assembly’s enactment as “creating a Class
X offense carrying 20 to 80 years” and said that subsections (B), (C), and (D) are “each a
different offense.” 371 Ill. App. 3d at 26. To the extent the court in Douglas meant to advance
this interpretation, we conclude the decision is incorrect.
¶ 87 As a general rule, if a statute lays out the elements of a criminal offense and then
separately provides sentencing classifications based on other factors, those additional factors do
not create new offenses. People v. Owens, 2016 IL App (4th) 140090, ¶ 33 (citing People v. Van
Schoyck, 232 Ill. 2d 330, 337 (2009)). Instead, those additional factors serve only to enhance the
ultimate punishment. Id. The attempt statute expressly sets out the elements of the offense under
a heading bearing that specific language. See 720 ILCS 5/8-4(a) (West 2014) (“Elements of the
offense.”). Then the separate factors are laid out in a subsection labeled “Sentence.” See id. § 8-
4(c). The structure of the statute makes plain that we are dealing, not with separate offenses, but
with additional factors that provide exceptions to the general Class X sentence imposed for
attempted first degree murder.
¶ 88 We are mindful that, under Apprendi v. New Jersey, 530 U.S. 466, 495 (2000), labeling
an additional factor an “enhancement” does not diminish the State’s burden to prove that factor
beyond a reasonable doubt. But the General Assembly has accounted for this constitutional rule
and has placed strict limits on the ability to charge and obtain a conviction based on nonelement
sentencing enhancements. The Code of Criminal Procedure provides that, where the State alleges
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No. 1-15-3031
a nonelement fact that increases the range of penalties beyond the statutory maximum that could
otherwise be imposed, the State must notify the defendant before trial, submit the enhancement
to the fact finder, and prove it beyond a reasonable doubt. 725 ILCS 5/111-3(c-5) (West 2014).
¶ 89 Here, the State both amended the indictment and submitted a written motion seeking the
relevant enhancements. The jury instructions included the victims’ status as peace officers as
propositions that the State had to prove, and the State submitted special jury questions regarding
the proof of personal discharge of a firearm beyond a reasonable doubt. Thus, we are presented
with nonelement sentencing enhancements that have been proven in a manner consistent with the
constitutional rule of Apprendi. Cf. Jackson, 2018 IL App (1st) 150487, ¶¶ 55-59.
¶ 90 Turning to whether both enhancements can apply to attempted first degree murder, we
are confronted with a question of statutory interpretation. Our objective in construing a statute is
to give effect to the General Assembly’s intent, which we do by looking to the language in the
statute and ascribing its plain and ordinary meaning. Id. ¶ 48. Unless the language of the statute
is ambiguous, we do not resort to extrinsic aids of statutory construction. Id. (citing People v.
Glisson, 202 Ill. 2d 499, 505 (2002)). We employ the de novo standard of review when
construing a statute. Id. ¶ 47.
¶ 91 The sentencing provision of the attempt statute, section 8-4(c)(1), states:
“(c) Sentence.
A person convicted of attempt may be fined or imprisoned or both not to
exceed the maximum provided for the offense attempted but, except for an
attempt to commit the offense defined in Section 33A-2 of this Code:
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No. 1-15-3031
(1) the sentence for attempt to commit first degree murder is the
sentence for a Class X felony, except that
(A) an attempt to commit first degree murder when at least
one of the aggravating factors specified in paragraphs (1), (2), and
(12) of subsection (b) of Section 9-1 is present is a Class X felony
for which the sentence shall be a term of imprisonment of not less
than 20 years and not more than 80 years;
(B) an attempt to commit first degree murder while armed
with a firearm is a Class X felony for which 15 years shall be
added to the term of imprisonment imposed by the court;
(C) an attempt to commit first degree murder during which
the person personally discharged a firearm is a Class X felony for
which 20 years shall be added to the term of imprisonment
imposed by the court;
(D) an attempt to commit first degree murder during which
the person personally discharged a firearm that proximately caused
great bodily harm, permanent disability, permanent disfigurement,
or death to another person is a Class X felony for which 25 years
or up to a term of natural life shall be added to the term of
imprisonment imposed by the court; and
(E) if the defendant proves by a preponderance of the
evidence at sentencing that, at the time of the attempted murder, he
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No. 1-15-3031
or she was acting under a sudden and intense passion resulting
from serious provocation by the individual whom the defendant
endeavored to kill, or another, and, had the individual the
defendant endeavored to kill died, the defendant would have
negligently or accidentally caused that death, then the sentence for
the attempted murder is the sentence for a Class 1 felony[.].” 720
ILCS 5/8-4(c)(1)(A)-(E) (West 2014).
¶ 92 As we have alluded to, the bulk of the relevant cases provide little help because they were
not confronted with the applicable text. The statute’s 2010 amendments changed the period at the
end of subsection (D) into a semicolon and added everything from “and” to the end of subsection
(E). Pub. Act 96-710 (eff. Jan. 1, 2010) (amending 720 ILCS 5/8-4). Douglas, decided in 2007,
interpreted the version of the statute in effect in 2000. 371 Ill. App. 3d at 26. Smith and
Tolentino, decided in 2012 and 2011 respectively, also interpreted versions of the statute in effect
before the amendment. See Smith, 2012 IL App (1st) 102354, ¶ 107 (citing 720 ILCS 5/8-4(c)
(West 2004)); Tolentino, 409 Ill. App. 3d at 604 (citing 720 ILCS 5/8-4(c) (West 2006)). Only
one case, which neither party cites but was addressed during oral argument, interprets the
postamendment version—Jackson, 2018 IL App (1st) 150487, ¶ 49 (citing 720 ILCS 5/8-4(c)
(West 2010)). We will, accordingly, begin our analysis with Jackson although, as we will
explain, that analysis only gets us so far.
¶ 93 Jackson points to section 8-4(c) as stating a general rule: attempted first degree murder is
a Class X offense carrying a sentencing range of 6 to 30 years in prison. Id. ¶ 50. The statute then
goes on to list exceptions, beginning with subsection (A), which allows for an enhanced
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No. 1-15-3031
sentencing range of 20 to 80 years when the victim is, among others, a peace officer. Id.
Jackson’s analysis focuses on what comes next: a semicolon. Because a series of subsections
punctuated by semicolons follow subsection (A), ordinary principles of grammar would suggest
that these are “related but separate concept[s].” Id. ¶ 51. Ordinarily this means we would read
subsections (A)-(E) disjunctively, that is, only one could apply at a time. Id.
¶ 94 Jackson went on to find that the “and” transition from subsection (D) to subsection (E)
disrupted the usual inference that we would derive from a semicolon. Id. The court reasoned that,
by inserting “and” at the end of a list punctuated by semicolons, the General Assembly expressed
an intent that the subsections apply conjunctively, meaning that more than one can apply to a
given defendant at a given time. Id. The court in Jackson found this to be a natural reading
because subsections (B)-(D) add a term of years onto the new sentencing range required when
subsection (A) applies. Id. ¶ 52.
¶ 95 Absent from the analysis in Jackson (and from the parties’ briefs before us) is a
discussion of the effect of the addition of subsection (E) on the analysis. Certainly, we must
interpret statutes to give every section its intended effect. People v. Stoecker, 2014 IL 115756,
¶ 25 (“every clause of a statute must be given a reasonable meaning, if possible, and should not
be rendered meaningless or superfluous”). Additionally, we interpret statutes as a whole,
rejecting an interpretation that exalts one provision of a statutory scheme over another. People v.
Miles, 2017 IL App (1st) 132719, ¶ 25 (“When interpreting a statute, we do not read a portion of
it in isolation; instead, we read it in its entirety, keeping in mind the subject it addresses and the
drafters’ apparent objective in enacting it.”). When we adhere to these principles and take
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No. 1-15-3031
account of subsection (E), reading these provisions conjunctively, as the court did in Jackson,
brings about an unworkable result.
¶ 96 Subsection (E) borrows language that is “substantially similar to the statutory language
for one of the grounds for second degree murder.” People v. Lauderdale, 2012 IL App (1st)
100939, ¶ 23 (citing 720 ILCS 5/9-2(a)(1) (West 2010)). Because the court in Lauderdale found
that the defendant had failed to prove the existence of facts justifying mitigation under
subsection (E), the court expressly declined to decide whether the 25-year firearm enhancement
in subsection (D) could be applied if the mitigating circumstances in subsection (E) also were
found. Id. ¶ 35.
¶ 97 We are aware that our supreme court has said, “under the Illinois attempt statute, no
crime of attempted second degree murder exists.” People v. Lopez, 166 Ill. 2d 441, 451 (1995).
As we have said, subsections (A)-(E) do not create new offenses; they provide exceptions to the
default Class X sentencing range for attempted first degree murder. That said, we examine the
differences between first and second degree murder to further our understanding of the
relationship between subsections (A)-(E) in the attempt statute.
¶ 98 Under our law, while it is listed in its own statute, Illinois has no separate offense of
second degree murder. See People v. Jeffries, 164 Ill. 2d 104, 122 (1995) (second degree murder
is not lesser-included offense of first degree murder but, rather, a lesser-mitigated offense of first
degree murder). In other words, finding a defendant guilty of second degree murder means he or
she must have committed acts that establish every element of first degree murder. Lopez, 166 Ill.
2d at 447. Then, once the State has proven the elements of first degree murder, the defendant has
the opportunity to prove one of two mitigating circumstances by a preponderance of the
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No. 1-15-3031
evidence. Id.; see also 720 ILCS 5/9-2(a)(1)-(2) (West 2014). By its plain terms, the statute
codifying second degree murder only allows a defendant to present mitigating circumstances if
he or she allegedly committed nonaggravated first degree murder. See 720 ILCS 5/9-2(a) (West
2014) (citing id. § 9-1(a)(1)-(2)). Hence, there cannot be, for instance, second degree murder of a
peace officer.
¶ 99 With these base principles in mind, we turn to the sentencing exceptions in section 8-
4(c)(1)(A)-(E). To receive the enhancement for attempted murder of a peace officer, the
defendant must attempt an act that, if he or she had succeeded, would be first degree murder of a
peace officer. See id. §§ 8-4(c)(1)(A); 9-1(b)(1). To receive the mitigation of a Class 1 sentence
based on serious provocation, the defendant must have attempted an act that, if he or she had
succeeded, would have been second degree murder (first degree plus a mitigating circumstance).
See id. § 8-4(c)(1)(E). These two exceptions to the base Class X sentencing range for attempted
first degree murder cannot exist together because, if the defendant attempted the aggravated form
of first degree murder, the defendant cannot also have attempted first degree murder plus a
mitigating circumstance. We know this because, as we have explained, the mitigating
circumstances that allow for a second degree murder conviction do not apply to the aggravated
versions of first degree murder.
¶ 100 Jackson relied on the word “and” to support its conjunctive interpretation of the
subsections without taking account of what came after the “and.” One simply cannot read
subsection (A) and subsection (E) conjunctively. Applying the conjunctive reading proposed in
Jackson to the remainder of the subsections would require us to acquiesce in an impossible
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No. 1-15-3031
reading of the statutory scheme as a whole, an absurd result we are obligated to avoid. See In re
Andrew B., 237 Ill. 2d 340, 348 (2010) (we presume legislature did not intend absurd results).
¶ 101 Accounting for subsection (E), as we must, leads to absurd results. But reading the statute
conjunctively leads to another absurdity that existed even before the amendment of the attempt
statute. Phagan points out that reading the subsections conjunctively would allow the trial court
to impose the 15-year, 20-year, and 25-year enhancements in subsections (B), (C), and (D)
respectively, on top of each other as long as the State proved the factual predicate for the most
serious of the three. In Jackson, the court dismissed this concern as “unfounded” because of the
rule that the court is to interpret statutes so as to prohibit multiple enhancements absent clear
legislative intent to the contrary. 2018 IL App (1st) 150487, ¶ 53. We cannot reconcile this
assurance with Jackson’s finding of a clear legislative intent to read the statute conjunctively. It
cannot both be true that the legislature wanted the subsections to apply conjunctively, which
would require the imposition of every subsection that applied, but at the same time did not intend
multiple enhancements.
¶ 102 The State’s attempt to save this reading of the statute fares no better. In contrast to
Jackson, at oral argument the State embraced the multiple-enhancement interpretation and
assured us that trial courts simply are not sentencing defendants under every enhancement that
applies. We have similarly been unable to find any case in which a court has applied more than
one of the enhancements in subsections (B)-(D). But the State’s assurance that trial courts are not
applying these enhancements on top of one another raises another interpretive problem: the
enhancements under subsections (B)-(D) are mandatory. Each subsection states that the term of
years “shall be added” if the trial court finds the requisite facts. If subsections (B)-(D) are to be
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No. 1-15-3031
read conjunctively and the imposition of each subsection to be mandatory, then trial courts (or at
least the trial court in this case) are acting contrary to the mandates of the statute.
¶ 103 We have explained the problems a conjunctive interpretation of the statute poses. It is
impossible to read subsection (A) and subsection (E) conjunctively because the attempt offense
described in each subsection cannot both have been committed by the same person at the same
time. We cannot read subsections (B)-(D) conjunctively because doing so appears to sanction an
unintended multiple enhancement. Both problems are at once solved by a disjunctive reading of
subsections (A)-(E).
¶ 104 Further support comes from the statutory amendment. Douglas was the only opinion
interpreting the former version section 8-4(c). When we interpret amended statutes, we presume
that the General Assembly knows of appellate and supreme court decisions interpreting those
statutes at the time of the amendment. People v. Gliniewicz, 2018 IL App (2d) 170490, ¶ 38. If
the legislature leaves the statute unchanged in spite of our decision, we presume that the
legislators acquiesced in our interpretation. See Bruso v. Alexian Brothers Hospital, 178 Ill. 2d
445, 458-59 (1997). Other provisions of the Criminal Code demonstrate the General Assembly’s
ability to make the compound application of status- and firearm-based enhancements
unmistakable. For example, the aggravated assault offense delineates separate offenses based on
the location of the offense (720 ILCS 5/12-2(a) (West 2014)), based on victim status (id. § 12-
2(b)(1)-(10)), and based on the use of a firearm (id. § 12-2(c)(1)-(9)). The sentencing provision
then sets out separate classes of offense for each enumerated subsection. Id. § 12-2(d). That
provision further provides additional enhancements for certain status-based offenses when a
Category I, II, or III weapon is used. Id. The General Assembly, through this statutory scheme,
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makes plain that the status and weapon aggravating factors are distinct, going on to include
separate subsections where it obviously intends enhancements to be based on the use of a
weapon and victim status combined.
¶ 105 Another example, slightly more analogous, involves the statute criminalizing predatory
criminal sexual assault of a child. See id. § 11-1.40. There, the legislature set out specific
elements that create the offense. Id. § 11-1.40(a)(1)-(2). The first element depends purely on the
child’s age. Id. § 11-1.40(a). The second element is based on the age of the child and then nests
within it certain additional factors, including the presence or discharge of a firearm. Id. § 11-
1.40(a)(2)(A)-(B). Then, in the sentencing section, the statute delineates distinct sentencing
ranges and enhancements for each subsection.
¶ 106 These statutory provisions provide evidence that the General Assembly has the ability to
impose status-plus-firearm enhancements when it intends to do so. We cannot read that intent
here, however, particularly when we must presume the legislature was aware of Douglas when it
amended the attempt statute. The General Assembly could have easily expressed its intent to
interpret the statute in the way the State would like by nesting subsections (B) through (D) under
subsection (A), but it chose not to. If this is the reading the legislature intended, the General
Assembly should amend the statute to make that clear.
¶ 107 We find that the attempted first degree murder statute found in section 8-4(c)(1)(A)-(E),
as it is currently written, does not allow for the imposition of the 20- to 80-year extended
sentencing range combined with the 20-year firearm enhancement. See id. § 8-4(c)(1)(A)-(E).
¶ 108 Remedy
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¶ 109 Phagan argues that we should “either vacate the 20-year sentencing enhancements or
remand this cause for resentencing.” The State takes no position on remedy, simply asking us to
affirm. While Phagan does not cite any authority or offer any explanation as to why we would
vacate the firearm enhancement as opposed to the peace officer enhancement, we agree that
vacating the 20-year firearm enhancement is the proper course.
¶ 110 We have found no authority directly on point in the context of sentencing enhancements,
but the law is well settled in the analogous context of one-act, one-crime violations. Our supreme
court has “always held” that, when the entry of two convictions violates the one-act, one-crime
rule, the less serious offense must be vacated. People v. Lee, 213 Ill. 2d 218, 226-27 (2004). We
are permitted to make that determination for ourselves, without remand to the trial court, when
we are able to determine the more serious offense. People v. Grant, 2017 IL App (1st) 142956,
¶ 33. In the one-act, one-crime context, we determine the more serious offense by looking at the
possible punishments—the greater the penalty, the more serious the offense. People v. Artis, 232
Ill. 2d 156, 170 (2009). If the punishments are identical, we can also look to the mental state
required—the more culpable the mental state, the more serious the offense. Id. at 170-71.
¶ 111 These principles are easily applicable to Phagan’s case, even though we are dealing with
sentencing enhancements, not separate offenses. The peace officer sentencing enhancement
increases the sentencing range from 6-30 years to 20-80 years. 720 ILCS 5/8-4(c)(1)(A); 9-
1(b)(1) (West 2014). The firearm enhancement, applied separately as we now hold it must be,
increases the sentencing range from 6-30 years to 26-50 years. See id. § 8-4(c)(1)(C) (adding 20
years to base Class X range). The peace officer sentencing enhancement increases the possible
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penalty far beyond the firearm sentencing enhancement and appears to be the enhancement the
General Assembly viewed as the more serious.
¶ 112 We go on to analyze the mens rea for each enhancement, however, because of the
substantial overlap between the two sentencing ranges. The firearm sentencing enhancement, by
its plain text, imposes no additional mental state requirement beyond the base attempted murder
offense. It is enough that the defendant committed attempted murder while discharging a firearm.
The peace officer enhancement, on its own terms, also does not add a mental state requirement.
But the peace officer enhancement does directly cross-reference to the underlying offense. See
id. § 8-4(c)(1)(A) (citing id. § 9-1(b)(1)). The underlying offense requires the defendant to have
knowledge that the victim was a peace officer. Id. § 9-1(b)(1). So we know that a defendant who
attempts to murder a peace officer must know that he is attempting to murder a peace officer. We
conclude that the peace officer enhancement requires a more culpable mens rea than the firearm
enhancement.
¶ 113 Because the firearm enhancement is the less serious enhancement, based both on the
possible penalties associated with it and the lesser mental state required, we vacate the trial
court’s imposition of the 20-year firearm enhancement.
¶ 114 Discretionary Consecutive Sentences
¶ 115 Phagan argues that the trial court erred by ordering his sentence for attempted murder to
run consecutively to his other concurrent sentences. He argues that the independently lengthy
prison terms are sufficient to protect the public because, despite his criminal background, this
case did not result in any injuries or damage. The State responds that the trial court properly
found that Phagan’s conviction for a 2008 case was “eerily similar” to this one and that Phagan
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put numerous lives at risk by his conduct, making a consecutive sentence necessary to protect the
public. We agree with the State and find, given the extreme danger caused by Phagan’s conduct
and his apparent penchant to be involved in this kind of behavior, the trial court did not abuse its
discretion by imposing consecutive sentences.
¶ 116 The Unified Code of Corrections allows for the imposition of discretionary consecutive
sentences where, “having regard to the nature and circumstances of the offense and the history
and character of the defendant,” the court believes that consecutive sentences “protect the public
from further criminal conduct by the defendant.” 730 ILCS 5/5-8-4(c)(1) (West 2014).
Consecutive sentences should be imposed in exceptional cases, and the record must show that
the trial court has adequately balanced mitigating factors and rehabilitative potential against the
need to protect the public. People v. O’Neal, 125 Ill. 2d 291, 298-301 (1988); see also People v.
Buckner, 2013 IL App (2d) 130083, ¶ 36. Given the fact-intensive balancing required from the
trial court, we follow an abuse of discretion standard. O’Neal, 125 Ill. 2d at 297-98.
¶ 117 The trial court relied heavily on the danger to the public and the police caused by
Phagan’s behavior. The record supports this conclusion. Ample testimony attests to Phagan
repeatedly driving over the speed limit, ignoring traffic control devices, and driving off-road. In
pursuit, the officers also had to drive at high speeds and sometimes in the wrong lane of traffic.
While it was early morning, and the videos of the chase show little traffic, the trial court
correctly found that the chase posed a significant risk of danger to anyone in the vicinity,
including Phagan and the pursuing officers. That would be danger enough, but Phagan
compounded that danger by firing at the officers. In response, several officers fired at least 17
shots.
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¶ 118 Even more significantly, the trial court found Phagan’s actions to be both deliberate and
likely to be repeated. The trial judge, when considering mitigation, rejected the idea that
Phagan’s conduct “did not contemplate” the possibility of serious physical harm to another. The
court noted that at every turn Phagan could have made a choice to reduce the possibility of injury
by complying with the police when they attempted to pull him over. Instead, he led a “high speed
chase with basically shootouts at three different points.” Phagan undoubtedly understood that he
“could cause or threaten serious physical harm certainly to civilians that were around, as well as
responding officers.”
¶ 119 As we laid out in the facts, Phagan committed this offense while on mandatory
supervised release (parole) for a 2008 offense that bears striking similarities. A Sauk Village
police officer found Phagan and a codefendant in a car that had been stolen four days before.
After unsuccessful efforts to arrest them, Phagan sped off, at times “[i]n excess of 110 miles an
hour,” driving erratically. The codefendant, the passenger, leaned out and fired at the pursuing
officers causing one squad car to crash and another to abandon the pursuit. The trial court
described this offense as “eerily similar” to this one, and we agree. Phagan has shown, twice
now, complete disregard for the safety of the citizens of Chicago, the police, and himself. We
find the trial court’s judgment, that this aggravation is “incredibly, incredibly significant,” to not
be an abuse of discretion.
¶ 120 Phagan fails to identify any record facts that the trial court should have considered in
mitigation and did not. Instead, he recites a series of Illinois cases reversing the imposition of
consecutive sentences for “far more serious crimes” than his, including O’Neal, People v.
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Rucker, 260 Ill. App. 3d 659 (1994), and People v. Brown, 258 Ill. App. 3d 544 (1994). We find
these cases distinguishable, each for slightly different reasons.
¶ 121 In O’Neal, the trial court ordered the murder sentence to run consecutively to the
concurrent sentences for rape and aggravated kidnapping. 125 Ill. 2d at 293-94. The defendant
and another offender had forced their way into victim’s car. Id. at 294-95. They drove to an alley
where they put the victim’s boyfriend in the trunk and the defendant raped the victim. Id. at 295.
After the defendant was done, the other offender got on top of the victim; the defendant then shot
the other offender and fled. Id. The defendant was 19, the youngest of six children to a mother on
public aid. Id. at 300. The defendant had left home while he was still in grammar school and his
only conviction had been a robbery for which he had received probation. Id. The defendant also
testified that he was afraid of the other offender, who had previously forced him to participate in
other crimes and to perform sexual acts at gunpoint. Id. at 296.
¶ 122 The Illinois Supreme Court affirmed the judgment of the appellate court reversing the
imposition of consecutive sentences. Id. at 301. Central to its analysis was the determination that
the trial court had considered the evidence in aggravation, but there was “no indication that the
trial court gave serious consideration to [the] defendant’s youth and other evidence in mitigation,
namely, his desire to free himself from [the other offender’s] oppressive deviate sexual
practices.” Id. at 300. Phagan’s sentencing hearing does not present us with the same
deficiencies. The trial court went through the statutory mitigating factors and explained why each
one did not apply. Of particular relevance, contrary to the court’s reasoning in O’Neal, the trial
court found that Phagan’s conduct was not the result of provocation, inducement, or some other
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excuse. O’Neal presented an uncommon set of facts and a trial court unwilling to consider them;
that is not Phagan’s situation.
¶ 123 In Rucker, the trial court imposed consecutive sentences for two separate counts of armed
robbery despite the presence of a deluge of mitigating evidence. There, the 17-year-old
defendant and two of his friends placed orders for pizza. Rucker, 260 Ill. App. 3d at 660. Both
times the same delivery person arrived. Id. The first time the boys brandished a metal pipe and
took the pizza without paying; the second time, the boys hit the delivery person with baseball
bats, causing a skull fracture and shattered elbow, and took money from him. Id. at 660-61. At
sentencing the State argued the severity of the offense in aggravation. Id. In contrast, the
mitigation evidence showed that the defendant had been a well-performing student until his
grandmother died and his girlfriend broke up with him, at which point he was hospitalized for
severe depression, and never successfully treated. Id. at 661. The defendant, though he explained
the offense as one of the another boy’s idea, expressed remorse and a willingness to pay
restitution to the victim. Id. at 661-62.
¶ 124 The appellate court reversed the consecutive sentences, finding that, while a lengthy
sentence was appropriate, consecutive sentences of 6 and 14 years was an abuse of discretion in
light of the facts. Id. at 663. None of the mitigation present in Rucker exists here. Phagan was not
a young boy, cajoled into crime by peer pressure. There is no evidence of trauma that would
have caused a behavioral spiral. Similarly, because Phagan did not speak in allocution, there is
no affirmative evidence that he expressed any remorse. Indeed, most of his trial testimony was
nothing but an elaborate exercise in blame-shifting, and a futile one at that—the jury did not
accept any of his excuses. We cannot say that Rucker supports reversal.
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¶ 125 The court in Brown confronted a confluence of reasons to justify a reversal of
consecutive sentences. The defendant had been convicted of aggravated criminal sexual assault,
aggravated criminal sexual abuse, and armed robbery. Brown, 258 Ill. App. 3d at 545. As in
O’Neal, the appellate court described the trial court’s consecutive sentences decision as
“boilerplate.” Id. at 554. As in Rucker, significant mitigating evidence was presented, including
that the defendant was 19, had no criminal history, had been employed, and lived with his
family. Id. In addition, the defendant in Brown faced a different application of the consecutive
sentencing statute. By the statute’s text, his sentences for aggravated criminal sexual assault and
armed robbery were required to run consecutively, and the defendant did not challenge that
aspect of his sentence. Id. at 553. Those sentences alone amounted to 20 years. Id. at 554. The
appellate court found it unnecessary to add an additional discretionary consecutive sentence of
five years. Id. As before, we are not presented with significant mitigation or with a “boilerplate”
ruling from the trial court or with sentences already running consecutively by operation of law.
¶ 126 The trial court’s decision did not amount to an abuse of discretion. Phagan does not claim
that the trial court failed to consider mitigating evidence. The trial court carefully considered the
potential for harm caused by Phagan’s conduct and, given Phagan’s criminal history, the
substantial likelihood that he might do something like this again. We agree that the record
supports the trial court’s conclusion. We affirm the imposition of consecutive sentences.
¶ 127 Excessiveness of Sentence
¶ 128 Phagan also challenges his sentence as excessive. We address this issue without
remanding because, as we read Phagan’s brief, we understand his challenge to be only to the
concurrent 30-year sentences for attempted murder of a peace officer irrespective of his
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challenges to the 20-year firearm enhancement or the consecutive sentence in his other case.
While Phagan’s brief does complain about his “71-year aggregate sentence,” the remedy he
seeks is exclusively related to his 30-year attempted murder sentence. Specifically, he asks only
that we “reduce [his] sentences for attempt[ed] first degree murder to the minimum of 20 years”
or remand for resentencing. This task is the same regardless of our conclusions as to the other
aspects of his sentence, so we undertake it now.
¶ 129 Phagan makes three basic arguments as to the excessiveness of his 30-year attempted
murder sentences: (i) his sentence had no deterrence value because, as the trial court
acknowledged, the case had not received “substantial visibility”; (ii) the sentence serves no
rehabilitative purpose because Phagan had rehabilitative potential but received a de facto life
sentence; and (iii) the trial court’s sentence was disproportionate to the nature of the offense. The
State responds to each claim, but the theme of the State’s argument is that on balance the
seriousness of Phagan’s offense significantly outweighs any possible mitigation and justifies his
sentence, which was within the applicable sentencing range. We ultimately agree with the State.
¶ 130 Phagan briefly reiterates the trial court’s point that his sentence would not serve the
interest in general deterrence because the case was not widely publicized. We note some courts
have expressed doubt that publicity is a necessary component of general deterrence. See United
States v. Robinson, 778 F.3d 515, 521 (6th Cir. 2015) (“A court should not require evidence of
likely publicity before taking into account the Congressional sentencing goal of deterrence
***.”). Indeed, general deterrence concerns maintaining the faith that our judicial system
adequately punishes wrongdoing as much as it does about preventing others from committing the
precise crime of which a defendant is convicted. Cf. United States v. Martin, 455 F.3d 1227,
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1240 (11th Cir. 2006). It would be impossible to advance this goal if we consistently sanctioned
relatively lenient punishment for serious offenses just because those cases did not achieve public
infamy. We find that, even if Phagan’s offense had not been widely known, his sentence
demonstrates the trial court’s commitment to punishing defendants sufficiently for bad acts and
fosters a culture of deterrence that our system values.
¶ 131 Phagan further argues that he is “not beyond rehabilitation” because he was only 23 years
old at the time of the offense, had a supportive family, had purportedly left the gang with which
he had been involved, and had struggled with poverty and his mother’s substance abuse. Defense
counsel made these same arguments to the trial court. We presume that the trial court considered
this evidence unless affirmative proof shows the contrary. People v. Brewer, 2013 IL App (1st)
072821, ¶ 55. The trial court expressly considered the statutory mitigating factor related to
Phagan’s attitude and likelihood to commit another crime as well as potential hardship to his
family members caused by a long sentence. The existence of mitigating factors does not require
the trial court to sentence close to the minimum. People v. Flores, 404 Ill. App. 3d 155, 158
(2010).
¶ 132 Despite the trial court’s authority to substantially depart from the minimum—even with
the existence of mitigating factors—the court did not do so for the base sentence for attempted
murder. As a result, we cannot say that his sentence is “disproportionate to the nature of the
offense,” as Phagan argues. The permissible range for Phagan’s sentence is 20 to 80 years. 720
ILCS 5/8-4(c)(1)(A) (West 2014). Phagan’s base sentence is 10 years beyond the minimum and
50 years shy of the maximum. We have already set out, in great detail, the danger caused by
Phagan’s offense and his having committed similar offenses. Given the deference we owe to
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sentences within the statutory range (see People v. Vega, 2018 IL App (1st) 160619, ¶ 64),
coupled with the trial court’s careful consideration of the factors in aggravation and mitigation,
we do not see a justification to disturb the trial court’s sentencing judgment.
¶ 133 Affirmed in part and vacated in part.
¶ 134 Supplemental Opinion on Denial of Rehearing
¶ 135 Mr. Phagan has filed a pro se petition for rehearing. His arguments focus on our rejection
of two of his claims of prosecutorial misconduct. He claims that we improperly characterized the
State’s argument about the “smoking gun” as a well-known figure of speech where earlier in the
sentence counsel for the State used the word “literally.” Supra, ¶¶ 55-63. In other words, he asks
us to read “literally” literally. He also claims that we improperly honored his forfeiture of his
argument about the State’s characterization of his credibility. Supra, ¶¶ 74-8. As part of that
argument he suggests that his appellate counsel was ineffective for failing to address the State’s
forfeiture argument in the reply brief.
¶ 136 As to Phagan’s first argument, he cites the dictionary definition of “literally” and urges us
to find that any plain reading of the State’s argument about the smoking gun could not be
figurative. Again, the whole phrase the State said was, “[t]he defendant is literally caught at 3001
South King Drive in the stolen vehicle with the smoking gun.” There is a grammatical ambiguity
in this sentence. “Literally” could modify “caught at 3001 South King drive,” but not the
following prepositional phrases. Or, “literally” could modify “caught at 3001 South King Drive
in the stolen vehicle,” but not “with the smoking gun.” Both of these interpretations would be
literally true in light of the trial evidence. Or, as Phagan argues, “literally” could modify
everything that follows it.
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¶ 137 Our original opinion set out at some length that we review claims of prosecutorial
misconduct for an abuse of discretion. Part of that review involves deference to the trial court’s
assessment of counsel’s tone. Here, the emphasis the State placed on different words in the
sentence could have provided some clue as to the contextual meaning of “literally.” The trial
court is also in the best position to gauge the impact of a particular argument in the context of the
whole argument. Our discussion of the multiple permissible interpretations of the prosecutor’s
argument, when read on paper, is precisely why we vest the trial court with discretion to
determine the propriety of counsel’s arguments. In light of the standard of review and the
inherent ambiguity in the State’s one-sentence argument, we decline to modify our original
holding.
¶ 138 We similarly reject Phagan’s request to excuse his forfeiture of his claim about the
prosecutor’s comments on his credibility during closing argument for the reasons we’ve already
stated. Supra, ¶ 77. We will, however, briefly address his argument about ineffective assistance
of his appellate counsel for failing to argue plain error in reply. We typically do not allow
litigants to raise new arguments in petitions for rehearing. Ill. S. Ct. Rule 341(h)(7) (eff. May 25,
2018), but we have softened the requirement of compliance with this rule in appropriate
circumstances. People v. Patterson, 2016 IL App (1st) 101573-B, ¶¶ 23, 27 (addressing two new
arguments from State’s petition for rehearing where they spoke to the court’s jurisdiction and a
conflict in precedent, respectively).
¶ 139 We could invoke Rule 341 and suggest to Phagan that he raise his claim of ineffective
assistance of appellate counsel in a post-conviction petition. See People v. Veach, 2017 IL
120649, ¶ 31 (collecting cases). In Veach, however, the Illinois Supreme Court instructed us that
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ineffectiveness claims are better suited to collateral proceedings only when “the record is
incomplete or inadequate for resolving the claim.” Id., ¶ 46. We can resolve Phagan’s ineffective
assistance of counsel claim easily on the record before us and so judicial economy would be
poorly served by sending him to post-conviction proceedings to do so instead.
¶ 140 Ineffective assistance of appellate counsel claims are governed by the familiar standard in
Strickland v. Washington, 466 U.S. 668 (1984), and require a defendant to show both that his
counsel’s performance was deficient and that the deficiency prejudiced the defendant. People v.
Golden, 229 Ill. 2d 277, 283 (2008). In this context, “[u]nless the underlying issue has merit, a
defendant cannot be considered to have suffered prejudice from appellate counsel’s failure to
brief the issue.” People v. Makiel, 358 Ill. App. 3d 102, 113 (2005). We have already said that
the underlying issue about the State’s comments on Phagan’s credibility were forfeited, (supra, ¶
76), and so the alleged error must have amounted to plain error in order for us to find appellate
counsel’s failure to raise it prejudicial.
¶ 141 A defendant can show plain error in two ways. Under “first-prong” plain error, “a
reviewing court must decide 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.” People v.
Sebby, 2017 IL 119445, ¶ 51. Under this prong, a defendant must show that the error is
prejudicial by demonstrating that the evidence is closely balanced. Id. Under “second-prong”
plain error, we must also decide “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,” but if the
defendant makes that showing we presume prejudice regardless of the closeness of the
evidence. Id., ¶ 50.
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¶ 142 Under either prong of plain error we typically ask first whether there was clear or obvious
error at all. Id., ¶ 49. But here, even assuming (without deciding) the prosecutor’s argument was
improper, neither prong of plain error would save Phagan from his forfeiture. As to the first
prong, the evidence here was not closely balanced. Unlike Sebby, which turned on the resolution
of a contest of credibility (id., ¶ 63), the State’s case was corroborated by physical evidence.
Supra, ¶¶ 25-7. The court in Sebby cited its previous decision in People v. Naylor, 229 Ill. 2d 584
(2006), with approval where the court emphasized that first-prong plain error covers cases with
“opposing versions of events” but where there is “no extrinsic evidence *** to corroborate or
contradict either version.” Sebby, 2017 IL 119445, ¶ 63 (quoting Naylor, 229 Ill. 2d at 607). Here
we have extrinsic evidence corroborating a host of State witnesses. The evidence was not closely
balanced and the prosecutor’s error, assuming there was one, was not first-prong plain error.
¶ 143 Phagan has not explained how the prosecutor’s passing comment about credibility
amounts to second-prong plain error and our review of the record does not reveal a trial that was
unfair. We highlight that the State’s attempt to downplay Phagan’s credibility was not
necessarily a successful one. The jury found Phagan not guilty of several counts related to the
chase overall and, more relevant to Phagan’s testimony, not guilty of one of the counts related to
the taking of Anthony Wilson’s car. Whatever effect the prosecutor’s argument had on the jury,
it does not appear to have affected their ability to carefully and fairly weight the evidence and
decide on Phagan’s guilt or lack thereof. Importantly, Phagan offers no concrete argument to the
contrary.
¶ 144 We find that, even if it was error for the prosecutor to comment on Phagan’s credibility, it
was not plain error. Because it was not plain error, counsel’s failure to argue that it was in the
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reply brief did not prejudice Phagan. We reject his argument of ineffective assistance of
appellate counsel. We deny Phagan’s petition for rehearing and, with the additions mentioned
here, adhere to our original opinion.
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