People v. Browner , 2022 IL App (1st) 200715-U ( 2022 )

2022 IL App (1st) 200715-UNo. 1-20-0715
Order filed December 2, 2022
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
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. ) No. 14 CR 19400
)
STEVON BROWNER, ) Honorable
) William H. Hooks,
Defendant-Appellant. ) Judge, presiding.
JUSTICE GORDON delivered the judgment of the court.
Presiding Justice McBride and Justice Burke concurred in the judgment.
ORDER
¶1 Held: Defendant’s sentence is affirmed where the trial court (1) considered all mitigating
evidence, and (2) did not commit plain error by relying on improper factors.
¶2 Following a bench trial, defendant Stevon Browner, age 19, was found guilty of two counts
of attempted first degree murder, one count of aggravated battery, and one count of aggravated
discharge of a firearm. The court merged all counts into one count of attempted first degree murder
(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2014)) and imposed 40 years’ imprisonment. On appeal,
No. 1-20-0715
defendant argues that the court (1) failed to adequately consider mitigating factors and (2)
committed plain error by considering improper factors. We affirm.
¶3 Defendant was charged by indictment with multiple offenses arising from an incident on
October 9, 2014. The State proceeded to trial on counts of attempted first degree murder of Alexus
Hightower while armed with a firearm (count I), personally discharging a firearm (count II),
causing great bodily harm by personally discharging a firearm (count III), and causing permanent
disfigurement by personally discharging a firearm (count IV); attempted first degree murder of
Hightower’s daughter, also named Alexus Hightower 1 (counts IX-X); aggravated battery with a
firearm against Hightower (count XI), and aggravated discharge of a firearm at a vehicle occupied
by Hightower (count XII) and Alexus (count XV).
¶4 At trial, Hightower testified that on October 9, 2014, around 6 p.m., she left a laundromat
with Kevin Humes, Kelvin Littles, and Alexus. Humes drove Hightower’s vehicle, and Hightower
sat in the front passenger seat; Littles sat behind Hightower, and Alexus was in a child seat behind
Humes. As they drove up Paulina Street to Juneway Terrace, Hightower observed her friend,
“Bucky.” Humes pulled into an alley so Bucky and Hightower could speak through a window. An
individual Hightower knew as “Dirty” entered the alley.
¶5 Dirty said something to Humes which “made [Hightower] feel nervous and
uncomfortable.” Fearing for Alexus’s safety, she asked Humes to leave the alley. After proceeding
about 1½ blocks, Hightower observed defendant, whom she identified in court, standing near
Ashland Avenue. Hightower had known defendant, “Taz,” since he was a child, and had grown up
with his family. Defendant also had been to her on home numerous occasions.
1
We will refer to Alexus Hightower as Hightower and her daughter as Alexus.
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¶6 Defendant stood 7 to 10 feet from Hightower and held a firearm. She tried saying, “no, my
baby,” but defendant bit his bottom lip, lifted his arm, and shot at the vehicle. Hightower was
closest to defendant and he pointed his firearm at her when he began shooting. One shot hit the
“motion box” under the vehicle, causing it to start “floating.” Hightower reached for Alexus and
was shot in the back. After the vehicle stopped, Hightower jumped out, asked Humes to grab
Alexus, and walked to the corner to call the police. Alexus was uninjured.
¶7 Hightower was transported by ambulance to St. Francis Hospital. A bullet was removed
from her back, and another in her hip was stopped by a key in her pocket. At the hospital,
Hightower told police that Taz shot her. On October 14, 2014, she emailed photos of defendant to
Chicago police detective Jose Gomez and told him that she did not know why defendant, a “close
acquaintance,” shot her. The next day, Hightower met with detectives, signed an advisory form,
identified defendant as the shooter from a photo array, and gave a videotaped statement.
¶8 On cross-examination, Hightower testified that the vehicle had tinted windows in the back.
Defendant fired 12 or 13 times, but no one chased or shot at her when she exited the vehicle. The
bullet which hit her hip pierced the skin. She left the hospital that evening, against medical advice,
because she received threats on her phone.
¶9 Humes testified that he drove Hightower and Littles on the evening of the incident, but
denied being at the laundromat or that Alexus was with them. They pulled into the alley because
of a vehicle crash, but Hightower told Humes to exit the alley soon after. Humes did not observe
anyone in the alley. Humes “heard some shots,” but testified that he “was at the wrong place at the
wrong time.”
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¶ 10 Humes did not recall meeting with Gomez and Assistant State’s Attorney Craig Taczy on
October 15, 2014, or giving a video statement. He denied telling them that, in the alley, Bucky was
on the driver’s side of the vehicle, “by the baby.” He never told them Dirty approached the vehicle,
said something, and afterwards, Hightower asked them to leave. Humes testified that they did not
have to back out of the alley because they were facing straight out and denied stating that, as they
turned onto Ashland, Taz appeared from between two vehicles and shot Hightower twice. He
denied saying the shooter was three to four feet away, observing the shooter’s face, or saying the
shooter wore a gray hoodie. Humes denied telling Gomez and Taczy there were 10 shots, the first
shot hit the windshield, the second hit the engine, and the rest hit the vehicle, or that he retrieved
Hightower’s daughter. He denied telling them defendant had a “smoke gray pistol, 9-millimeter,”
instead testifying that he “couldn’t see nothing” because he “ducked underneath the car.”
¶ 11 The State produced People’s Exhibit No. 20, a photo of defendant with Humes’s signature,
which is included in the record on appeal. Humes testified that he only signed the paper because
“they asked” whether he knew the person in the photo, and he responded, “That’s my son’s uncle.”
Humes did not know the person’s name.
¶ 12 Gomez testified that he and his partner, Detective Reyes, 2 interviewed Hightower at the
hospital on October 9, 2014. Afterwards, Gomez visited the scene and observed Hightower’s
vehicle with seven gunshot holes in the passenger side and the hood. The windows were shattered.
Eight 9-millimeter cartridges were collected, along with two bullet fragments from the rear
passenger door and seat.
2
Detective Reyes’s first name is not found in the report of proceedings.
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¶ 13 Hightower called Gomez on October 14, 2014, because she wanted to email photos to him.
The next day, Gomez met Hightower in Evanston. She signed an advisory form and identified
defendant as the shooter from a photo array. Defendant was arrested that day. Also on October 15,
2014, Gomez and Taczy met Humes at the police station and he voluntarily gave a videotaped
statement.
¶ 14 The State entered a stipulation regarding the foundation of the video, People’s Exhibit No.
21. The State offered the video into evidence and published the video, which is included in the
record on appeal and has been reviewed by this court.
¶ 15 The video depicts Humes and two other men in an interrogation room. Humes confirms he
is giving the statement voluntarily, and describes the events of October 9, 2014. Humes was with
Hightower, Littles, and Alexus at a laundromat. They left around 6 p.m.; Humes drove, Hightower
was in the passenger seat, Littles sat behind Hightower, and Alexus sat behind Humes. Hightower
observed Bucky, and Humes entered an alley so they could speak. Bucky asked Hightower for a
cigarette and played with Alexus through the window. An individual Humes knew as Dirty entered
the alley and spoke to him. 3 Hightower then asked to leave because she felt threatened. Humes
reversed the vehicle and heard shots near Ashland. The shooter was three to four feet from the
passenger side.
¶ 16 When asked who the shooter was, Humes points at a photo and says, “I know him as Taz,”
but did not know his real name. Humes signs the photograph after making the identification. Taz
wore a gray hoodie with the hood raised, but Humes stated that he still observed his face. There
3
The State requested the court strike the portion of the video where Humes discusses Dirty’s
statement.
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were at least 10 shots; the first hit the windshield, the second hit the motor, the third hit the front
passenger window, and the rest hit the back passenger door. During the shooting, the vehicle kept
moving. When it stopped, Humes exited and grabbed Alexus; Hightower called the police. Humes
could no longer see the shooter, who had used a “smoke gray” pistol. Humes knew Taz since he
was a baby.
¶ 17 Defense counsel moved for a directed finding. The court granted the motion as to counts
III and IV for attempted first degree murder, finding that the State had not presented evidence that
suggested great bodily harm or disfigurement to Hightower.
¶ 18 After closing arguments, the court found defendant guilty of attempted first degree murder
of Hightower while armed with a firearm (count I) and personally discharging the firearm (count
II), aggravated battery with a firearm against Hightower (count XI), and aggravated discharge of
a firearm at a vehicle occupied by Hightower (count XII). The court found defendant not guilty of
attempted first degree murder of Alexus (counts IX and X) and aggravated discharge of a firearm
at a vehicle occupied by Alexus (count XV).
¶ 19 Defendant filed a motion and two amended motions for a new trial or, in the alternative, to
reconsider. The court denied the motions.
¶ 20 The court ordered a presentence investigation (PSI) report, which was filed on April 2,
2019. Due to delays prior to sentencing, a second PSI was ordered and filed on January 7, 2020.
¶ 21 Defendant’s PSIs reflected a pending case for public indecency (2017), convictions for
possession of cannabis (2013) and possession of a stolen motor vehicle (2012), and a juvenile
charge of retail theft (2009). He had been sentenced to one year’s imprisonment for possession of
cannabis and four years’ imprisonment for possession of a stolen motor vehicle.
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¶ 22 According to the PSI from January 7, 2020, defendant was 19 years old on the date of the
shooting at issue. Defendant was raised by his mother, never knew his father, and had eight half-
siblings. He was incarcerated during his sophomore year of high school, was never employed, and
spent the five years prior to trial in the Cook County Department of Corrections. Defendant was
single, had no children, and lived with his mother and youngest brother in Chicago prior to
incarceration. He denied associating with a gang, though he reported he was a member of the
Gangster Disciples in his prior PSI. Defendant took medication for high blood pressure, and was
stabbed by another inmate in 2017. He smoked marijuana daily since age 12.
¶ 23 At sentencing, the State argued in aggravation that defendant caused lasting harm to
Hightower when he shot at her and the other occupants of the vehicle, including her two-year-old
child, at close range. The State emphasized defendant’s criminal record, noting he was on parole
when this incident occurred and that he failed to “rejoin society” and “be a law abiding citizen.”
Defendant had been sentenced to boot camp for his cannabis conviction, but was resentenced to
one year of incarceration after violating the terms of his initial sentence. The State requested a
prison term of 35 years.
¶ 24 In a letter, Hightower wrote that defendant “ruined me and my six kids’s life, mentally and
physically.” 4 She felt stress and had trouble taking her children to activities. Due to fear, she moved
out of state and away from everyone she had known her whole life. She experienced financial
difficulty as she was unable to work because of her physical injuries and mental instability. She
wrote that “for [defendant] to look at me and my 2-year-old child in the eye, and try to kill us, he
had no remorse when he was behind that gun, pulling that trigger, shooting me.”
4
The letter is not included in the record on appeal, but was read into the record by the State.
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¶ 25 In mitigation, defense counsel asserted that the State misrepresented whether defendant
shot from close range or knew that Alexus was present. Counsel argued that defendant did not act
“as call[ously] as described in the letter,” was only 19 at the time of the incident, and his criminal
background was nonviolent. Additionally, Hightower’s injuries were minimal and there was no
evidence she received surgery, rehabilitation, or counseling. Defendant had familial support
throughout the trial and wanted to obtain his GED. Defense counsel requested the minimum prison
sentence of 26 years, which would be “significant” but still offer defendant the chance “to become
a better person, and to become a productive member of society.” Defendant did not speak in
allocation, though counsel stated that defendant asked counsel to thank the court for him.
¶ 26 The court merged all counts into count II for attempted first degree murder predicated on
personally discharging the firearm at Hightower and imposed a sentence of 40 years’
imprisonment. 5 The court stated that it was “mindful of the [s]entencing range in this matter,” but
noted that “these are not 50 percent cases.”
¶ 27 In imposing sentence, the court noted “the horror” of defendant’s conduct in “pumping a
vehicle with .9 millimeter rounds,” twice striking Hightower while she tried to “save her child.”
The offense, moreover, was not “incidental” or between strangers. Rather, defendant “knew the
victim” and her family and “made a conscious decision” to “light up that vehicle.” The court called
defendant’s actions the “epitome” of “attempt first degree murder,” and noted the “psychological
damage” to Hightower and “the broad community of Chicago, and Cook County” when people
“cannot move about” or “live their lives without people like [defendant] trying to take those lives
5
Prior to stating that “all the findings merge with Count II, same act, same crime,” the court stated
that defendant would receive sentences of 40 years, 30 years, and 30 years for counts I, XI, and XII,
respectively. The mittimus lists the sentences for each count, but specifies the counts merge into count II.
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away.” According to the court, “[t]here is no reason why a young [m]other has to be put in peril,
and the community we know as Chicago, and have to go through the horror of surviving being a
stationary target of another individual.”
¶ 28 The court described legitimate uses of firearms for law enforcement, the military, and
sports, but stated that firearms should not be used “to alter the course of another person’s life at a
whim,” as in the present case, when a person “decides to use” a firearm as “an instrument of evil.”
The court considered the argument that defendant was unaware of Alexus’s presence to be
“fantasy,” and dismissed the notion that, if defendant knew “there was a 2-year-old in that seat, he
would have been, *** more precise in shooting the [m]other.” Defendant’s lack of knowledge
regarding Alexus’s presence would not absolve him, however, because “that bullet goes where it
goes; and it is reckless; and in this case it’s intentional.”
¶ 29 The court stated that the weight of the evidence regarding the shooting was “very
significant,” and declined “to entertain the fact that [Hightower] didn’t die.” Instead, she “was
treated and released” after “a .9 millimeter bullet *** ripped through her flesh and *** caused her
life to be altered forever.” Although Hightower survived, the court had “no reason to doubt that
the rest of her life will be affected by that.” It added:
“This Court is aware of Marines who have fought in combat; and I have been
around those Marines; and I will tell you, that grown men who have been shot at in
campaigns *** are still affected; and they’re tough guys; and they signed up to for it; and
they were willing to go out to die face down in the sand, if necessary, on behalf of this
country; but they still are affected by it; and I know them close and personal. They are still
affected by it.
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To be a civilian, to not be involved in a campaign, to have to go through this is
extraordinary.”
¶ 30 Finally, though defendant “may have” rehabilitative potential, the court found “[t]here was
nothing presented for that” and he “has not accepted responsibility.” The court stated, however,
that defendant’s failure to express remorse was not aggravating, and the best option was to place
him in a situation where he could rehabilitate and “the community can be safe” from him. While
defendant’s prior crimes were not as severe as those committed by other offenders, he was “no
stranger to the criminal justice system,” and “[t]he test is, whether [defendant] needs to be amongst
us, and whether we need to take a short-term trust of [defendant] to be rehabilitated in short order.”
The court added, however, that little could deter those “deciding whether they’re going to shoot a
woman in a car, with a baby in the back, even though they didn’t know the baby was in the back,
in the car seat.”
¶ 31 Defense counsel filed two motions to reconsider sentence, arguing in relevant part that the
sentence was excessive given “defendant’s background and the nature of his participation in the
offense.” The court denied the motions.
¶ 32 On appeal, defendant contends that his sentence was excessive where the court disregarded
his rehabilitative potential and the mitigating evidence, including defendant’s youth, his non-
violent prior offenses, his supportive family, and his desire to obtain his GED.
¶ 33 At sentencing, the trial court must balance “the seriousness of the offense” and “the
objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. The trial
court has broad discretion when imposing a sentence, and its decisions are entitled to great
deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). The reviewing court will not substitute
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its judgment for that of the trial court merely because it would have weighed the factors differently.
Alexander, 239 Ill. 2d at 213. The trial court is in the best position to evaluate the appropriate
sentence because it observed the defendant and the proceedings. People v. Jones, 2019 IL App
(1st) 170478, ¶ 50.
¶ 34 If a sentence is within the statutory limits, this court will not disturb it absent an abuse of
discretion. People v. Burton, 2015 IL App (1st) 131600, ¶¶ 35-36. Abuse of discretion occurs when
a sentence is “manifestly disproportionate to the nature of the offense.” People v. Jackson, 375 Ill.
App. 3d 796, 800 (2007). The presence of mitigating factors or an absence of aggravating factors
does not mean that the minimum sentence must be imposed. People v. Quintana, 332 Ill. App. 3d
96, 109 (2002). The most important factor in determining an appropriate sentence is the
seriousness of the crime. Quintana, 332 Ill. App 3d at 109. A defendant’s rehabilitative potential
is only one factor to be considered by the trial court, and it is not entitled to more weight than any
other factor. People v. Evans, 373 Ill. App. 3d 948, 968 (2007). A trial court is not required to
articulate every factor it considered to justify its sentence. People v. Ramos, 353 Ill. App. 3d 133,
137-38 (2004); see also Evans, 373 Ill. App. 3d at 968 (the trial court “is not required to detail
precisely for the record the process by which [it] determined a sentence nor is [it] required to make
an express finding that defendant lacked rehabilitative potential”).
¶ 35 Generally, attempted first degree murder has a sentencing range of 6 to 30 years’
imprisonment. 720 ILCS 5/8-4(c)(1) (West 2014) (sentence for attempted murder is the sentence
for a Class X felony); 730 ILCS 5/5-4.5-25(a) (West 2014) (sentence for a Class X felony is 6 to
30 years’ imprisonment). A 20-year enhancement applies, however, when, as here, the defendant
personally discharged a firearm while committing attempted murder. 730 ILCS 5/8-4(c)(1)(C)
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(West 2014). Consequently, the applicable range in this case was 26 to 50 years’ imprisonment.
Defendant was sentenced to 40 years’ imprisonment, which falls within the statutory guidelines
and is presumed to be proper unless the defendant affirmatively shows otherwise. Burton, 2015 IL
App (1st) 131600, ¶ 36. Defendant did not make that showing here.
¶ 36 Viewing the record as a whole, the experienced trial court did not overlook defendant’s
rehabilitative potential or other mitigating factors. The court received defendant’s PSIs, which
reflected that he was 19 years old on the date of the offense and never knew his father. See People
v. Sauseda, 2016 IL App (1st) 140134, ¶ 20 (sentencing court is presumed to consider all
mitigating evidence presented including factors mentioned in PSI). Defense counsel argued that
defendant’s family supported him and that defendant wanted to obtain his GED. The PSIs,
however, also showed that defendant used drugs daily, initially indicated gang affiliation, and had
convictions for possession of cannabis and possession of a stolen motor vehicle. Further, as the
State argued, defendant was on parole at the time of the incident and failed to “rejoin society” and
“be a law abiding citizen”; instead, defendant repeatedly fired a weapon at an occupied vehicle.
¶ 37 The court was aware that Hightower’s injuries did not preclude her from leaving the
hospital, but declined “to entertain the fact that [Hightower] didn’t die” as mitigation. Instead, the
court properly considered the gravity of her injuries, the manner in which they “altered” her life,
and the danger that defendant posed to the community. In so holding, the court acknowledged that
defendant “may” have rehabilitative potential, but it was not proven by the mitigating evidence.
The court explained that while defendant would have the opportunity to rehabilitate in prison, his
sentence also needed to protect the community. As noted, rehabilitative potential is only one factor
to be considered at sentencing (Evans, 373 Ill. App. 3d at 968), and the most important factor is
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the seriousness of the crime (Quintana, 332 Ill. App. 3d at 109). Here, the court properly applied
these principles, did not disregard the mitigating evidence, and exercised due discretion in
fashioning defendant’s sentence. See Jones, 2019 IL App (1st) 170478, ¶ 50. Defendant’s sentence
was not excessive and no error occurred.
¶ 38 In so holding, we observe that, for the first time on appeal, defendant cites several studies
regarding the rehabilitative potential of young adults who have brains that are still developing, but
no evidence was offered to show that this defendant had a brain that was still being developed.
¶ 39 Courts may take judicial notice of commonly known matters, “or of facts which, while not
generally known, are readily verifiable from sources of indisputable accuracy.” People v.
Mehlberg, 249 Ill. App. 3d 499, 531 (1993). However, a reviewing court may not take judicial
notice of “critical evidentiary material” not presented at trial. Mehlberg, 249 Ill. App 3d at 531. A
reviewing court will determine the issues before it based only on the record made in the lower
court. Mehlberg, 249 Ill. App 3d at 532. Here, defendant attempts to introduce evidence that was
never introduced at trial or sentencing concerning the development of the brains of young adults.
Therefore, this court will not consider it on appeal.
¶ 40 Defendant further argues that trial counsel was ineffective for not presenting “brain
science” related to young adults, which prejudiced defendant at sentencing. The record here is
insufficient to consider the claim on the merits, and, as a result, defendant’s claim of ineffective
assistance fails. See People v. Richardson, 401 Ill. App. 3d 45, 48 (2010)
(ineffective assistance claims based on matters de hors the record are improper for direct appeal).
¶ 41 Next, defendant alleges the trial court erred at sentencing by (1) misapprehending trial
evidence; (2) relying on factors inherent in the offense; (3) imposing a double enhancement; (4)
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relying on factors unsupported by the evidence and, instead, drawing on the court’s personal
beliefs and experience; and (5) adhering to a “personal practice” for sentencing that disregarded
the statutory range.
¶ 42 Defendant acknowledges that he did not preserve these issues for review, but requests that
this court review them for plain error.
¶ 43 To preserve a claim of sentencing error, the defendant must contemporaneously object and
file a written postsentencing motion raising an issue. People v. Hillier, 237 Ill. 2d 539, 544-45
(2010). When the defendant fails to preserve the issue, this court may review it under the plain
error doctrine. People v. Wooden, 2014 IL App (1st) 130907, ¶ 10. Under the plain error doctrine,
the defendant must first show that a clear and obvious error occurred, and then that (1) the evidence
at sentencing was closely balanced, or (2) the error was so egregious that it denied the defendant
a fair sentencing hearing. Wooden, 2014 IL App (1st) 130907, ¶ 10. Absent error, there can be no
plain error. Wooden, 2014 IL App (1st) 130907, ¶ 10.
¶ 44 First, defendant alleges the court misapprehended the evidence where it acquitted him of
the charges involving Alexus, but, at sentencing, stated that the notion defendant did not know of
Alexus’s presence was “fantasy.” Defendant observes that Hightower’s letter alleged that he
“looked” her and Alexus “in the eye” and tried to “kill” them, yet no evidence suggested that he
knew Alexus was in the vehicle; rather, at trial, Hightower testified that the vehicle had tinted
windows and she could not alert defendant to Alexus’s presence before he fired.
¶ 45 Although the trial court has great discretion in imposing sentence, it abuses that discretion
by imposing a sentence based upon a manifest error of fact. See, e.g., People v. Johnson, 227 Ill.
App. 3d 800, 817 (1992). In that situation, the sentence should be vacated and the cause remanded
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for resentencing unless the error was so insignificant that it did not increase the sentenced imposed.
People v. Ross, 303 Ill. App. 3d 966, 984 (1999). “In determining whether the trial court
improperly imposed a sentence, this court will not focus on isolated statements but instead will
consider the entire record.” People v. Walker, 2012 IL App (1st) 083655, ¶ 30.
¶ 46 Taking the court’s comments in context, we find it did not misapprehend the evidence.
Though defendant was acquitted of the counts against Alexus, the evidence did not establish that
he did not know she was in the vehicle. The evidence did show, however, that defendant pointed
his firearm at Hightower, who was a passenger, and therefore, defendant knew that more than one
person was in the vehicle when he fired. Alexus was in the backseat, and some of the bullets lodged
in the backseat and in a rear passenger door. As the court noted, each bullet fired by defendant
“goes where it goes.” Considering the record as a whole, it is apparent the trial court did not
misapprehend the facts or mistakenly rely on Hightower’s letter, but rather, accurately
characterized defendant’s conduct in view of the evidence presented at trial.
¶ 47 Second, defendant claims the court considered a factor inherent in the offense, namely, that
his conduct was intentional. See People v. Vega, 2018 IL App (1st) 160619, ¶ 41 (intent to kill is
an element of attempted first degree murder). Defendant argues that the court remarked that his
actions were not “incidental,” and that defendant “made a conscious decision” to fire at the vehicle
in the “epitome” of “attempt first degree murder.”
¶ 48 A trial court may not consider a factor inherent to the offense in aggravation. People v.
Reed, 2018 IL App (1st) 160609, ¶ 55. This rule, however, “is not meant to be applied rigidly,” as
“sound public policy dictates that a sentence be varied in accordance with the circumstances of the
offense.” (Internal quotation marks omitted.) People v. Spicer, 379 Ill. App. 3d 441, 468 (2007).
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Thus, the court may properly consider the nature and circumstances of the offense, including
“the nature and extent of each element of the offense as committed by the defendant.” People v.
Brewer, 2013 IL App (1st) 072821, ¶ 55.
¶ 49 Although the trial court commented on defendant’s intentions, those comments were not
directed to his volition in committing the offense, but rather, his decision to target Hightower. As
the court explained, defendant did not target a stranger, but rather, “knew the victim” and her
family. Defendant chose to fire a weapon, at close range, toward a person who had known him all
his life. The court, therefore, did not improperly consider a factor inherent in the offense, but
instead, properly identified an egregious aspect of defendant’s conduct.
¶ 50 Third, defendant argues that the court imposed a double enhancement by relying on his use
of a firearm “to increase his sentence from the 26-year minimum,” notwithstanding that the
sentence already included a 20-year firearm enhancement.
¶ 51 Double enhancement occurs when (1) a single factor is used an element of the offense and
as an aggravating factor at sentencing, or (2) when the same element is used twice to elevate the
severity of an offense itself. People v. Phelps, 211 Ill. 2d 1, 11-14 (2004). The rule reflects the
presumption that the legislature considered the elements of the crime when designating the
appropriate sentencing range. Phelps, 211 Ill. 2d at 12 (citing People v. Rissley, 165 Ill. 2d 364,
390 (1995)).
¶ 52 No double enhancement occurred here. While the court referenced the firearm at
sentencing, it could not discuss the harm defendant caused without describing his conduct. Thus,
the court fairly, albeit graphically, noted “the horror” of defendant’s conduct in “pumping a vehicle
with .9 millimeter rounds,” with two striking Hightower and “rip[ing] through her flesh.” The
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shooting had serious repercussions for Hightower, who experienced physical injuries, mental
instability, and anguish from the knowledge that defendant, whom she had known all his life, “had
no remorse when he was behind that gun, pulling that trigger.” The court’s decision to impose a
sentence above the statutory minimum, therefore, did not depend on defendant’s use of a firearm,
but rather, the harm he caused with it. Defendant’s position is, therefore, not persuasive.
¶ 53 Fourth, defendant contends that his sentence reflected factors unsupported by the evidence,
but instead, the court’s personal beliefs and experience. Specifically, defendant challenges the
court’s discussion of the psychological damage that firearm violence inflicted on Hightower, on
the community, and on the court’s discussion about the court’s experience in the Marines.
¶ 54 A sentencing determination that relies on the trial court’s own experience or investigation
constitutes a denial of due process. People v. Patterson, 2017 IL App (3d) 150062, ¶ 34. However,
personal comments or observations of the court “are generally of no consequence where the record
shows the court otherwise considered proper sentencing factors.” (Internal quotation marks
omitted.) People v. Walker, 2012 IL App (1st) 083655, ¶ 33; see also People v. Steppan, 105 Ill.
2d 310, 323 (1985) (where “the record clearly shows” that the judge consider proper sentencing
factors, including the need to “protect the public,” the judge’s “personal observations before
imposing sentence, while not to be encouraged, [are] of no consequence”).
¶ 55 At trial, evidence established that Hightower grew up with defendant’s family and knew
him since he was child. During the offense, Hightower observed defendant point the weapon at
her and fire multiple times from close range. Bullets struck Hightower’s back and hip. In her letter,
Hightower explained how defendant “ruined” her life and the lives of her six children. Due to fear,
she left the community where she had lived her whole life. Ongoing stress made it difficult for her
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to take her children to activities, and due to her injuries and mental instability, she could not work
and experienced financial difficulty.
¶ 56 During sentencing, the court recognized these circumstances in discussing the
“psychological damage” to Hightower and the community when people “cannot move about” or
“live their lives without people like [defendant] trying to take those lives away.” These comments
were not speculative or based on information de hors the record, but rather, reflected Hightower’s
account of how the shooting uprooted her from her community and impacted her life and the lives
of her children. To the extent the court referenced its familiarity with Marines who faced gunfire
in combat, those comments illustrated the severity of the trauma of the shooting on victims and
the long-term effects it had on Hightower, a civilian who nonetheless experienced “the horror of
surviving being a stationary target of another individual.” While the court suggested, in passing,
that it had specific combat veterans in mind, those comments were minimal and analogized the
serious consequences of the firearm violence in the instant case. This was not error.
¶ 57 Fifth, defendant argues the court adhered to an impermissible “personal practice” for
sentencing in attempted murder cases. Defendant relies on a discussion that occurred during
pretrial proceedings when the State announced that it had withdrawn a plea offer. The court asked
the State to “articulate” the offer, and the State explained that “the victim *** would be
comfortable with an offer no lower than 20 years.” The State added that the case involved a firearm
and multiple victims, including one who had been shot. The following colloquy occurred:
“THE COURT: *** Well, I don’t know all the facts to the situation, but, sir, with
an attempt murder situation, and the State is talking 20 years, you may want to look at that.
I don’t typically give 20 years out for attempt murder.
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***
[DEFENSE COUNSEL]: *** Obviously we have some factual disagreements—
THE COURT: That’s fine.
[DEFENSE COUNSEL]:—being alleged by the State.
THE COURT: But attempt murder, just a generic situation, I would be in that range
or higher.”
¶ 58 Based on the foregoing, defendant argues that because his sentence is 40 years—including
a firearm enhancement—it reflects the court’s personal practice of imposing a 20-year minimum
term for all convictions for attempted murder.
¶ 59 “[T]he trial court may not have a personal sentencing policy that fails to conform to the
standards” of the Unified Code of Corrections (730 ILCS 5/1-1.1 et seq. (West 2014)). People v.
Musgrave, 2019 IL App (4th) 170106, ¶ 55; see also People v. Bolyard, 61 Ill. 2d 583, 587 (1975)
(ordering new sentencing hearing when record affirmatively showed, during posttrial proceedings,
that trial judge arbitrarily denied probation because defendant “fell within the trial judge’s category
of disfavored offenders”). Notwithstanding, “there is a strong presumption that the trial court’s
sentence was based on proper legal reasoning, and a reviewing court should consider the record as
a whole rather than a few isolated statements.” Musgrave, 2019 IL App (4th) 170106, ¶ 55. The
defendant has the burden to affirmatively establish that his sentence reflected improper factors.
Musgrave, 2019 IL App (4th) 170106, ¶ 55.
¶ 60 Examining the judge’s pretrial comments in view of the record from defendant’s trial and
sentencing hearing, we find no error. During the pretrial colloquy, the court stated that it did not
“typically” impose 20-year sentences for attempted murder, but did not state this was an immutable
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No. 1-20-0715
sentencing policy. Likewise, while the court added that it would contemplate a term of at least 20
years for a “generic” attempted murder, the court cautioned, during that same dialogue, that it did
not know all the facts of the case.
¶ 61 Notably, after the court heard the evidence at trial and the cause proceeded to sentencing,
the court explained that it was “mindful of the [s]entencing range” and made no reference to a
sentencing policy. Rather, the court expressed a number of reasons for its sentence, including
defendant’s lack of remorse, the effect of the shooting on the victim, and defendant’s relationship
to the victim. Nothing in the record establishes that the court imposed defendant’s sentence based
on personal practices or policy considerations.
¶ 62 Given the preceding, defendant has not established error as to any of the sentencing issues
that he failed to preserve. Plain error review is, therefore, unmerited. See Wooden, 2014 IL App
(1st) 130907, ¶ 10. Finally, although defendant also argues that counsel was ineffective for not
preserving these issues, defendant’s failure to establish error renders that claim meritless as well.
People v. Jackson, 2020 IL 124112, ¶¶ 90-91 (ineffective assistance claim fails absent underlying
error).
¶ 63 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 64 Affirmed.
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