People v. Alexander ( 2021 )

2021 IL App (1st) 182129-UOrder filed: February 5, 2021
FIRST DISTRICT
FIFTH DIVISION
No. 1-18-2129
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 JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 13 CR 2719
)
RAY ALEXANDER, ) Honorable
) Brian Flaherty,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Delort and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: We affirmed defendant’s conviction of aggravated battery with a firearm, finding
that the record on direct appeal was incomplete with regard to his claim of
ineffective assistance such that the claim is more appropriately raised in a
postconviction proceeding and that his 10-year sentence for aggravated battery with
a firearm was not excessive.
¶2 Following a bench trial, defendant Ray Alexander was found guilty of aggravated battery
with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2012)) and sentenced to 10 years’ imprisonment.
On appeal, defendant argues that he was denied effective assistance of counsel at trial and that his
sentence was excessive. We affirm. 1
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
No. 1-18-2129
¶3 On January 12, 2013, defendant shot Orlando Montgomery, during a physical altercation,
at the apartment building where both men lived, located at 26 West 29th Street in South Chicago
Heights (26 West). Defendant was charged by indictment with attempt first degree murder,
aggravated battery with a firearm, and aggravated discharge of a firearm.
¶4 Prior to trial, defendant filed and later supplemented a “motion to allow inquiry into alleged
victim’s violent background (re Lynch)” (Lynch motion). Defendant sought to introduce evidence
of Montgomery’s aggressive and violent character, pursuant to People v. Lynch, 104 Ill. 2d 194(1984), to show that Montgomery was the first aggressor. Specifically, defendant sought to raise a
2007 conviction for misdemeanor battery in Wisconsin, in which Montgomery pled guilty.
According to the incident reports, Montgomery punched a man in the face after the man, who was
intoxicated, spilled beer on him. Defendant also sought to raise a 2011 arrest for domestic battery
in Harvey, Illinois, where Montgomery punched his brother during a verbal dispute. The criminal
charges in the 2011 case were later dismissed.
¶5 At the hearing on the motion, the State argued against admission of the Lynch evidence,
stating that there was a question in the 2007 case as to whether or not Montgomery was the initial
aggressor, and that “we would be having a mini-trial if that evidence were to be introduced.” The
State also argued that the relevant Wisconsin witness was beyond service of process. The State
further noted that in the 2011 case there was also a question as to whether Montgomery or his
brother was the initial aggressor, and that in any event Montgomery’s brother was so
“uncooperative” that he refused to file charges. Notwithstanding the State’s arguments, the trial
appeal has been resolved without oral argument upon the entry of a separate written order stating with
specificity why no substantial question is presented.
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No. 1-18-2129
court granted the Lynch motion, provided that there was a conflict in the evidence regarding the
initial aggressor.
¶6 The matter was set for trial on July 11, 2017. On that date, defense counsel stated he was
not ready for trial and sought a continuance because two of the Lynch witnesses from Wisconsin
were not available. The trial court stated, “We’ve been dealing with these Wisconsin people for a
long, long time” and noted that it had already given the defense a year of continuances for
defendant to obtain the police reports. The trial court granted the defense a final continuance and
stated that defense counsel will “have to drive up to Wisconsin to deal with that issue. But I will
not accept this excuse again about the Wisconsin witnesses.”
¶7 At trial, no Lynch evidence was presented. There is no indication in the record as to the
reasons the Lynch witnesses were not called, what steps were taken to procure their presence at
trial, or whether defense counsel subsequently drove to Wisconsin and/or contacted the Wisconsin
witnesses pursuant to the court’s suggestion.
¶8 Montgomery testified that on January 12, 2013, he lived in an apartment, at 26 West, with
his wife, Crystal Jones; three children; mother-in-law; and brother-in-law. Jones’s cousin,
Arleatrice Jackson, was visiting her that day at the apartment. Around 9:30 p.m., Montgomery
returned home from work and heard loud music coming from defendant’s downstairs apartment.
Defendant lived with Montgomery’s aunt, Charlotte Davis. The music was so loud that the walls
were “shattering,” and the shelves were falling down. At the request of his mother-in-law,
Montgomery went downstairs and knocked on defendant’s door.
¶9 Defendant, smelling like alcohol and appearing to be intoxicated, answered the door with
Davis at his side. Montgomery asked them to turn the music down and testified that defendant was
very angry and “obnoxious.” During a verbal confrontation, they went outside to the street and a
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No. 1-18-2129
physical altercation ensued. Defendant pushed Montgomery. Montgomery punched defendant in
the face; defendant fell down. Montgomery went back to his apartment without looking back.
Jones was upset and the children were crying. Montgomery left to get some air.
¶ 10 As Montgomery was leaving the building, he saw Davis and defendant standing near the
door. Defendant was holding a gun in his hand. Montgomery stepped toward defendant and pulled
Davis away from defendant. Defendant shot Montgomery in the abdomen. Montgomery then
pushed Davis out of the way and moved closer to defendant. Defendant shot Montgomery under
the armpit. Montgomery "slammed” defendant to the ground while defendant still had his hands
on the gun. Montgomery put his knee to defendant’s neck trying to wrestle the gun away. The gun
fired three more times, striking Montgomery in each of his hands and defendant in the leg.
¶ 11 After hearing sirens, Montgomery ran up the stairs and defendant fired another shot. When
the police arrived, an ambulance took Montgomery to the hospital. He had surgery on his hands
and abdomen. One of the bullets lodged near his spine was removed; another, near his ribs,
remained at the time of trial. Montgomery identified photographs of the scene and gun.
¶ 12 On cross-examination, Montgomery testified that he did not see any other neighbors
complaining about the noise. Montgomery’s mother-in-law wanted to call the police, but
Montgomery thought it would be easier to talk to defendant. Montgomery had a “good
relationship” with defendant, spoke with him on a daily basis. Montgomery denied threatening
defendant and Davis and denied shooting defendant.
¶ 13 Jones testified that on the evening of January 12, 2013, she lived at 26 West and heard loud
music that was causing the shelves to shake and items to break. Montgomery came home from
work around 9:30 p.m. and Jones’s mother asked him to go downstairs and ask defendant to turn
down the music. Jones and Jackson followed. According to Jones, Montgomery was not angry;
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No. 1-18-2129
defendant seemed a “little angry.” Defendant and Montgomery had a discussion at the door.
Montgomery went inside defendant’s apartment for approximately 5 to 10 minutes and then came
back to the doorway. The confrontation became physical as defendant followed Montgomery
outside. Montgomery hit defendant. Montgomery, Jones, and Jackson went back to their
apartment.
¶ 14 Montgomery was upset so he decided to take a walk. Jones and Jackson followed, but were
a few steps behind. Before making it outside, they heard gunshots and went back to their apartment.
They heard four or five gunshots and then silence. Jones and Jackson went back outside and saw
defendant lying on the ground. Montgomery was holding him down.
¶ 15 Jackson testified that on January 12, 2013, she was at 26 West and heard loud music. When
Montgomery arrived home from work, without a request from his mother-in-law, he went
downstairs to talk to defendant about the music. Jackson followed and saw Montgomery and
defendant talking in the doorway. Montgomery was not angry; defendant was “a little aggressive,”
“a little agitated.” A verbal altercation ensued and became physical. Jackson saw Montgomery
punch defendant but did not know who initiated the physical altercation.
¶ 16 Montgomery, Jones, and Jackson went back upstairs. Montgomery said he was going to
take a walk. Jones and Jackson followed, but heard a gunshot and turned around. They heard four
to five shots. Jones’s mother called the police.
¶ 17 Sergeant Jake Kozinski testified that just before 10 p.m. on January 12, 2013, he responded
to a shooting at 26 West with Detective Daniel Vaci. They spoke with Davis and found defendant
in the first-floor apartment, with a bloody lip and blood on his pant leg. Defendant was unaware
that he had been shot, but when he lifted his pant leg, he had been shot through the calf. The
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No. 1-18-2129
paramedics arrived. Detective Vaci went into the kitchen and recovered a gun. A third officer,
Officer Michael Jones, an evidence technician, was on the scene.
¶ 18 Detective Vaci testified that he responded to the shooting and was directed to get a gun on
defendant’s kitchen counter. The gun had five spent shells and one live round in the chamber.
¶ 19 Officer Jones testified that on the night of the shooting he was directed to cover the
stairwell. He heard Montgomery screaming that he had been shot. Montgomery came downstairs
and Officer Jones saw that he was bleeding. Officer Jones helped Montgomery to an ambulance
and then collected photographs of the scene.
¶ 20 The parties stipulated that Dr. Jane Lee, a physician, would testify that Montgomery had
sustained four gunshot wounds to his abdomen, left armpit, fingers of his right hand, and palm of
his left hand. Montgomery underwent surgery to his abdomen and right hand and was released the
next day. In addition, Patricia Wallace, a qualified expert in the field of forensic science of firearms
identification, would testify that the recovered gun was test-fired and in working condition.
¶ 21 Defendant testified that on January 12, 2013, he was watching football and listening to
music in his apartment. Around 10 p.m. he heard a knock on the door, answered it, and saw
Montgomery. Montgomery’s demeanor was “normal,” and they had a discussion about the music.
Defendant told him to “find your way home,” but Montgomery asked to come in to talk. Defendant
invited him inside. Montgomery got angry and started threatening defendant. Defendant told
Montgomery to leave. Montgomery started walking away but then punched defendant. Defendant
fell to the ground, could not get his balance, and crawled to his room. He grabbed his gun.
¶ 22 Defendant could not see Davis, so he went to the front door, which was still open.
Defendant went outside the doorway and Montgomery “jumped” inside defendant’s front door. A
struggle ensued, while defendant was still holding the gun. The gun went off three times.
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No. 1-18-2129
Defendant did not intend to kill or harm Montgomery; he wanted Montgomery out of his house.
Montgomery “tossed him out of the door.”
¶ 23 The police arrived and Montgomery pointed them toward the gun. Defendant was shot in
the calf and needed stiches on his lip where he was punched.
¶ 24 On cross-examination, defendant testified that on January 12, 2013, he drank liquor and
beer while watching a football game. He “cranked up” the music after the game was over.
Defendant had lived in the apartment for a few years and knew Montgomery, his girlfriend’s
nephew. Defendant and Montgomery had spoken on numerous occasions. Defendant
acknowledged that Montgomery did not have a weapon on him.
¶ 25 After defendant was arrested, he was given his Miranda warnings and agreed to speak to
the detectives and an assistant State’s Attorney. Defendant identified a handwritten statement that
he signed on January 13, 2013, at the police station. Defendant denied agreeing to have his
statement put in writing. He claimed that he did not read it before signing, but that he initialed
several corrections. Defendant agreed that the statement reflected that he “got up and immediately
ran to his bedroom and got a loaded [gun] from the top drawer of a storage container and ran back
out towards the front entrance.” Defendant denied at trial that he ran. Defendant then agreed that
the statement he signed indicated that Montgomery was near the front door, and that “when
[defendant] was about eight feet away from [Montgomery], [defendant] fired a shot towards
[Montgomery] and he aimed low.” Defendant also agreed that the statement reflected that
‘[Montgomery] rushed toward him, and [defendant] then fired a second shot at [Montgomery].”
¶ 26 The parties stipulated that defendant had a lip laceration, which required stitches, and that
he sustained a gunshot wound to his right calf and had a bullet shrapnel in his leg.
¶ 27 The defense rested.
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No. 1-18-2129
¶ 28 The trial court found Montgomery credible and that defendant was impeached on
significant facts. The court found defendant guilty of aggravated battery with a firearm and
aggravated discharge of a firearm and acquitted him of attempt murder.
¶ 29 The trial court denied defendant’s motion to reconsider the finding of guilt or, in the
alternative, a motion for new trial and proceeded to sentencing.
¶ 30 Prior to the sentencing hearing, the defense submitted a presentence investigation report
(PSI) detailing his background. Defendant reported he had a “good” childhood and remained close
with his mother. Defendant graduated high school. From 2010 until his arrest, he was employed
as a laborer for several labor agencies.
¶ 31 At sentencing, the State acknowledged that defendant had minimal criminal history, but
emphasized that he shot Montgomery several times, resulting in serious injuries. The State urged
the trial court to impose a sentence that would deter others. Defendant sought the minimum, noting
that he had been shot during the incident.
¶ 32 The court reviewed the PSI and the transcripts of the trial. The court stated that it was not
considering defendant’s criminal history as it was so far in the past. In summarizing the trial, the
court noted that it found the State’s witnesses credible and that defendant’s actions on the day of
the shooting were “cowardly.” The court emphasized the incident occurred over loud music, noting
that all defendant had to do was lower his music. The court took into account that defendant got
shot, but stated “you got shot because he was trying to fight you over the gun after you shot him.
So that’s how it all happened. So I take into consideration you got shot, but you got shot because
you’re the one that brought the gun.”
¶ 33 The court then stated “[t]aking into consideration all of the factors that I need to consider,
his conduct threatened serious harm. I do not think based on what I said before that there is a prior
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No. 1-18-2129
history of delinquency. There is some things that may or may not be you. Whatever it was, I don’t
care about it. And, again, it’s necessary to deter others from committing the same crime.” The trial
sentenced defendant to 10 years’ imprisonment and 3 years mandatory supervised release for
aggravated battery with a firearm.
¶ 34 Defendant filed a motion to reconsider sentence, which the trial court denied. Defendant
timely appealed.
¶ 35 On appeal, defendant first argues that defense counsel was constitutionally ineffective for
failing to introduce Lynch evidence at trial, despite having secured a favorable pretrial ruling.
¶ 36 A criminal defendant has the right to effective assistance of counsel. U.S. Const., amend.
VI; XIV; Ill. Const. 1970, art. II., § 8; Strickland v. Washington, 466 U.S. 668, 669 (1984). Under
Strickland, a defendant claiming ineffective assistance must show that counsel’s conduct “fell
below an objective standard of reasonableness,” and the conduct prejudiced defendant. Strickland,
466 U.S. at 687-88, 692. Defendant must overcome the strong presumption that the challenged
action or inaction could have been the product of sound trial strategy. People v. Evans, 186 Ill. 2d
83, 93 (1999). To establish the prejudice prong, defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. People v. Domagala, 2013 IL 113688, ¶ 36. We review ineffective assistance of
counsel claims de novo. People v. Ross, 2019 IL App (1st) 162341, ¶ 26.
¶ 37 Here, defendant argues that the evidence at trial established that there was a conflict
regarding whether he or Montgomery was the initial aggressor and that defense counsel acted
unreasonably by failing to introduce the Lynch evidence in support of his claim of self-defense,
which was allowed pursuant to the pretrial ruling. This evidence included Montgomery’s
conviction for battery in Wisconsin and arrest for domestic battery against his brother. Defendant
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No. 1-18-2129
contends that there is a reasonable probability that, but for defense counsel’s failure to introduce
the Lynch evidence, the result of the proceeding would have been different because such evidence
would have enhanced his credibility and his testimony that Montgomery was the aggressor and
that he acted in self-defense.
¶ 38 The State counters that defendant’s claim of ineffective assistance is founded on matters
outside the record and is more appropriately raised in a postconviction proceeding. The State cites
in support several cases, including Massaro v. United States, 538 U.S. 500 (2003), People v. Bew,
228 Ill. 2d 122 (2008), People v. Veach, 2017 IL 120649, People v. Kirklin, 2015 IL App (1st)
131420, and People v. Winkfield, 2015 IL App (1st) 130205.
¶ 39 In Massaro, the United States Supreme Court addressed whether the failure to raise an
ineffective assistance of counsel claim on direct appeal results in procedural default. The Court
noted that “[w]hen an ineffective-assistance claim is brought on direct appeal, appellate counsel
and the court must proceed on a trial record not developed precisely for the object of litigating or
preserving the claim and thus often incomplete or inadequate for this purpose.” 538 U.S. at 504-
05. The Court reasoned that “[a]pplying the usual procedural-default rule to ineffective-assistance
claims would *** creat[e] the risk that defendants would feel compelled to raise the issue [on direct
appeal] before there has been an opportunity fully to develop the factual predicate for the claim.”
Id. at 504. In recognizing a preference for deciding ineffective assistance claims on collateral
review, the Court reasoned that in a collateral proceeding:
“the defendant ‘has a full opportunity to prove facts establishing ineffectiveness of counsel,
the government has a full opportunity to present evidence to the contrary, the
[postconviction] court hears spoken words we can see only in print and sees expressions
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No. 1-18-2129
we will never see, and a factual record bearing precisely on the issue is created.’” Id. at 506(quoting United States v. Griffin, 699 F.2d 1102, 1109 (11th Cir. 1983)).
¶ 40 In Bew, the Illinois supreme court considered whether defense counsel was ineffective for
failing to file a motion to suppress. 228 Ill. 2d at 122. The court discussed Massaro, held that the
record in Bew was insufficient to address the issue on direct appeal, and concluded that defendant
could raise the issue in a postconviction proceeding in which both defendant and the State would
have the opportunity to develop a factual record bearing precisely on the issue. Id. at 135.
¶ 41 In Veach, the Illinois supreme court considered whether defense counsel was ineffective
for stipulating to the admission of recorded statements of the State’s witnesses. Veach, 2017 IL
120649, ¶ 1. The appellate court had found that the record was inadequate to resolve the issue on
direct appeal and affirmed defendant’s conviction, noting that defendant could bring his claim in
a postconviction proceeding where a factual record could be developed. Id. The supreme court
reversed and remanded the case to the appellate court, holding that “ineffective assistance of
counsel claims may sometimes be better suited to collateral proceedings but only when the record
is incomplete or inadequate for resolving the claim.” Id. ¶ 46. As the record contained defense
counsel’s reason for stipulating to the admission of the recorded statements, the appellate court
had erred in finding that the record was insufficient. Id. ¶ 51.
¶ 42 In Kirklin, we considered whether defense counsel was ineffective for failing to call certain
character witnesses as promised in his opening statement. 2015 IL App (1st) 131420, ¶ 132. We
recognized that although counsel’s assistance may be ineffective when he fails to call a witness as
promised during opening statement, his decision not to call the witness may be reasonable if
warranted by “unexpected events.” Id. ¶ 138. We held that the record on appeal was not fully
developed to establish “either the reasons of the trial attorney or the motives of the witnesses” and
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No. 1-18-2129
therefore that the issue could not be resolved on direct appeal. Id. We affirmed defendant’s
conviction and sentence. Id. ¶ 140.
¶ 43 In Winkfield, we considered whether defense counsel was ineffective for failing to call
certain alibi witnesses as promised in his opening statement. 2015 IL App (1st) 130205, ¶ 1. We
affirmed defendant’s conviction, finding that the record on appeal was inadequate to determine
whether counsel’s failure was “due to any deficient representation or merely a failure [on the part
of the witnesses] to cooperate or appear, or some other unforeseen or unexpected event.” Id. ¶ 27.
We found that disposition of defendant’s ineffective assistance claim required inquiry into matters
outside the record on direct appeal. Id. We held that “[w]hen the four corners of the record is
insufficient to address the issue of ineffective assistance of counsel, this court may decline to
adjudicate the claim in a direct appeal in favor of addressing it in a proceeding for postconviction
relief where matters outside the common law record can be considered.” Id. ¶ 28.
¶ 44 In the present case, the record on direct appeal is similarly insufficient to address
defendant’s ineffective assistance of counsel claim regarding counsel’s failure to present Lynch
evidence. Defense counsel secured a pre-trial ruling from the trial court allowing him to introduce
Lynch evidence regarding Montgomery’s prior conviction for misdemeanor battery in Wisconsin
in 2007, where he punched a man in the face after the man spilled beer on him, and his 2011 arrest
for domestic battery in Illinois when he allegedly punched his brother in the face during a verbal
dispute. At trial, though, defense counsel did not present witnesses nor did he question
Montgomery about those incidents. The record on appeal gives a possible reason for counsel’s
failure to present the Lynch evidence, specifically, that the Wisconsin witnesses were reluctant to
come to Illinois to testify, and that Montgomery’s brother was uncooperative, refused to file
charges against Montgomery, and the criminal charges were dismissed. However, this is mere
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No. 1-18-2129
speculation as the trial court never held a hearing on the issue of ineffective assistance of counsel.
Given the incomplete record on direct appeal regarding counsel’s reasoning for failing to present
the Lynch evidence, we would be required to engage in further speculation and conjecture in
determining whether counsel’s decision was tactical or the result of ineffectiveness. Our supreme
court has held, though, that we cannot resolve a claim of ineffective assistance based on conjecture
or speculation. Bew, 228 Ill. 2d at 134-35. As the record on appeal is insufficient for us to resolve
defendant’s claim of ineffective assistance, we decline to adjudicate the claim on direct appeal in
favor of considering it in a postconviction proceeding where matters outside the common law
record can be considered and a factual basis developed for resolution of the issue.
¶ 45 Next, defendant argues that his 10-year sentence is excessive in light of significant
mitigating factors demonstrating his potential for rehabilitation and the sentencing court’s
improper reliance in aggravation that the offense was committed with a gun, which is a factor
inherent in the offense.
¶ 46 In response, the State contends that defendant forfeited these claims for failing to raise
these particular issues in his post-sentencing motion. Setting aside forfeiture, the State argues the
trial court did not error with respect to sentencing.
¶ 47 In reply, defendant contends that his motion to reconsider the sentence was adequate to
preserve the alleged sentencing error, as it argued excessiveness. In the event of forfeiture,
defendant argues that his claims are reviewable under either prong of the plain-error doctrine.
¶ 48 Generally, “to preserve a claim of sentencing error, both a contemporaneous objection and
a written postsentencing motion raising the issue are required.” People v. Hillier, 237 Ill. 2d 539,
544-45 (2010). In the event of forfeiture, we may review defendant’s claim under the plain-error
doctrine. People v. Thompson, 238 Ill. 2d 598, 613 (2010). To obtain relief under the plain-error
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doctrine, “a defendant must first show that a clear or obvious error occurred. ***. In the sentencing
context, a defendant must show either that (1) the evidence at the sentencing hearing was closely
balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing.”
Hillier, 237 Ill. 2d at 545 (citations omitted).
¶ 49 We note that, even if we found forfeiture and engaged in plain-error review, we would first
need to determine whether any sentencing error occurred. Thompson, 238 Ill. 2d at 613. For the
following reasons, we find no error with respect to defendant’s sentencing and need not address
forfeiture in order to affirm the trial court.
¶ 50 Under the Illinois Constitution, the trial court must impose a sentence that balances the
seriousness of the offense and the defendant’s rehabilitative potential. People v. Knox, 2014 IL
App (1st) 120349, ¶ 46. In doing so, the court must consider aggravating and mitigating factors
including “the nature and circumstances of the crime, the defendant’s conduct in the commission
of the crime, and the defendant’s personal history, including his age, demeanor, habits, mentality,
credibility, criminal history, general moral character, social environment, and education.” Id. A
trial court need not discuss each relevant factor or articulate the basis for the sentence imposed; it
is presumed that the court considered the evidence in imposing the defendant’s sentence. People
v. Averett, 381 Ill. App. 3d 1001, 1021 (2008). Because the trial court is in the best position to
weigh these factors, the sentence imposed will not be reversed absent an abuse of discretion. Id.The reviewing court “must not substitute its judgment for that of the trial court merely because it
would have weighed these factors differently.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). “A
sentence within statutory limits will not be deemed excessive unless it is greatly at variance with
the spirit and the purpose of the law or manifestly disproportionate to the nature of the offense.”
People v. Busse, 2016 IL App (1st) 142941, ¶ 20.
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¶ 51 After reviewing the record in this case, we do not find that defendant’s sentence was so
excessive as to constitute an abuse of discretion. Aggravated battery with a firearm is a Class X
felony, which carries a sentencing range of 6 to 30 years’ imprisonment. 720 ILCS 5/12-3.05(a)(1)
(West 2012); 730 ILCS 5/5-4.5-25(a) (West 2012); 730 ILCS 5/3-6-3(a)(2)(ii) (West 2012). Thus,
the 10-year sentence was well within the statutory limits and is presumed to be proper. Knox, 2014
IL App (1st) 120349, ¶ 46.
¶ 52 The record shows that the trial court read the PSI and trial transcript and considered all of
the factors in aggravation and mitigation. Defendant’s actions were undoubtedly serious as he shot
Montgomery multiple times in response to a request to turn down his music. See People v. Wilson,
2016 IL App 141063, ¶ 11 (“The seriousness of an offense, and not mitigating evidence, is the
most important factor in sentencing.”). The mitigating evidence regarding defendant’s lack of
criminal history and background did not preclude the court from imposing a sentence four years
above the minimum. See People v. Alexander, 239 Ill. 2d 205, 214 (2010) (defendant’s
rehabilitative potential is not entitled to greater weight than the seriousness of the offense).
¶ 53 Lastly, we reject defendant’s contention that the trial court erred when it relied on his use
of a gun during the incident, as it was an element of the offense. Generally, a trial court may not
consider a factor implicit in the offense as an aggravating factor during sentencing. People v.
Phelps, 211 Ill. 2d 1, 11 (2004) (citing People v. Ferguson, 132 Ill. 2d 86, 96 (1989)). However, a
trial court may consider the nature of the offense when imposing a sentence, including the
circumstances and extent of each element as committed. People v. Robinson, 391 Ill. App. 822,
842 (2009).
¶ 54 Here, one of the elements of the offense that the State had to prove was that defendant
discharged a gun. 720 ILCS 5/12-3.05(e)(1) (West 2012). At sentencing, the State noted that
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defendant shot Montgomery more than once and the trial court pointed out that Montgomery did
not have a weapon and that defendant shot him multiple times. The trial court stated that it took
into consideration the fact that defendant got shot in the altercation but noted that he was shot
because he brought the gun to the fight. The trial court did not improperly rely on a factor implicit
in the offense when sentencing defendant. Rather, the trial court was describing the nature and
circumstances of defendant’s actions; that is the number of times Montgomery was shot and that
defendant would not have been shot but for the fact that he brought the weapon.
¶ 55 Therefore, we cannot say that the trial court abused its discretion in imposing a 10-year
sentence. As we find no error in sentencing, we need not discuss whether either prong of plain
error review applies. People v. Williams, 2017 IL App (1st) 150795, ¶ 40.
¶ 56 Affirmed.
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