delivered the opinion of the court:
Following a bench trial, defendant, Ruben Alcazar, was convicted of the voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2) of Alejandro Bahena and the unlawful use of a weapon (Ill. Rev. Stat. 1985, ch. 38, par. 24 — l(aX7)) and sentenced to concurrent prison
The record sets forth the following facts which are relevant to this appeal. On the evening of June 9, 1985, defendant and two of his friends, Marshall Jiminez and Frankie Rodriguez, were standing outside of the entrance to defendant’s apartment building at 177 Wild-wood, Wheeling, Illinois, when a verbal argument ensued between defendant and Alejandro Bahena. Apparently, defendant and Alejandro had been feuding with each other for over a year regarding the use of certain parking spaces in the apartment complex. That night Alejandro admitted that he had been the one who had slashed the tires on defendant’s car a few days earlier. Angered by the admission, defendant went into his apartment to get a sawed-off shotgun, which he concealed under a black karate-style robe he was wearing. Defendant then rejoined Marshall and Frankie and was later joined by Eduardo Ochoa. There is conflicting testimony as to whether defendant showed the gun to his friends at this point. However, the verbal altercation continued between defendant and Alejandro.
Defendant then told his friends to go home. As Eduardo walked by Alejandro and his friends, a fight broke out. There is conflicting testimony as to whether Eduardo ran back to defendant or whether defendant walked up to Alejandro. In either event, defendant showed Alejandro the gun, and the name-calling continued as defendant backed up toward his own apartment building. As Alejandro and his friends followed defendant toward defendant’s apartment building, Alejandro kept taunting defendant to use the gun. There was conflicting testimony as to whether Alejandro had been drinking prior to the altercation.
When defendant and Frankie reached defendant’s apartment building, Ernesto Eloiza, defendant’s father-in-law, was at the front entrance door to the building. Ernesto testified that Alejandro threatened to kill defendant, but he did not see any weapon. After defendant
There is conflicting testimony as to where defendant was standing at the time he shot Alejandro. Frankie had told the police that defendant had been on the stairs near the entrance, but later stated that he and defendant had agreed to say that defendant was on the second landing. Ernesto testified that defendant was on the stairs. Juan Malgoza testified that defendant was on the stairs, approximately six feet from the door to his own apartment unit. In defendant’s oral statement to the police, he stated that he had been on the second-floor landing, but later stated that he was on the stairs near the front entrance to the building. It was stipulated by the parties that no blood was found inside the front entrance door. Rather, the bloodstains were outside the door, indicating that defendant had shot Alejandro just as he pushed open the door, causing Alejandro to fall backward into the bushes near the front stoop.
At trial, defendant admitted to killing Alejandro, but claimed that it was in self-defense. Although a knife was found next to Alejandro’s body, there is conflicting testimony as to whether Alejandro was armed with a knife at the time of the shooting. Following closing arguments, the trial court found defendant guilty of voluntary manslaughter and unlawful use of a weapon and entered judgment on the verdict. The trial court then denied defendant’s motion for a new trial and, after hearing arguments in aggravation and mitigation, sentenced defendant as indicated. Defendant’s timely appeal followed.
Defendant first contends that the trial court erred in finding that his belief that he was in imminent danger of death or great bodily harm when Alejandro pushed open the front entrance door of his apartment building was unreasonable. Defendant argues that in finding him guilty of voluntary manslaughter, the trial court implicitly found that Alejandro had been the aggressor and that defendant had not possessed the intent to commit an illegal act. Defendant further argues that in viewing the circumstances which surrounded the shooting, it is evident that he fired the single shot “to protect himself, his loved ones and his home from the deceased’s violent intrusion.”
In response, the State contends that the argument between defendant and Alejandro which precipitated the shooting was strictly verbal and not physical. The State admits that Alejandro’s entry into the apartment building may have necessitated the use of nondeadly
Section 7 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. .1985, ch. 38, par. 7 — 1) provides:
“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”
To establish a defense of self-defense the defendant must show that: (1) unlawful force was threatened against him; (2) he was not the aggressor; (3) he believed the danger of harm was imminent; (4) force was necessary to avert that danger; and (5) the amount of force was necessary. (People v. Lenzi (1976),
In support of his contention that his belief that he was in imminent danger of death or great bodily harm was reasonable and the use of deadly force was necessary, defendant relies upon In re S.M. (1981),
Respondent continued to back up further into the fenced parking lot with Gale and Truppa following him, joined by Robert Paulish and Peterson. The pursuers then began to throw objects, such as a flattened tin can and a piece of asphalt, at respondent. During this time, respondent kept telling them to stay away, but they continued to approach him. When respondent had backed up to the fence, the four attackers formed a semicircle around him. Respondent then broke through the group and started to run, yelling to the onlookers to get help. When the attackers pursued him, respondent fired a warning shot. There were four versions as to the events that followed, but the result was that respondent shot and killed Truppa and Paulish and wounded Peterson and Gale. Following trial, respondent was adjudged delinquent for the commission of two counts of voluntary manslaughter and two counts of aggravated battery.
On appeal, the reviewing court reversed the judgment with respect to the two counts of voluntary manslaughter and aggravated battery and remanded the cause on other grounds. In reaching its decision, the court found the following facts determinative of its conclusion that the evidence had failed to prove beyond a reasonable doubt that respondent had not acted in self-defense; (1) respondent had tried to avoid confrontation by apologizing for swearing and immediately began to retreat; (2) the attackers had not been discouraged by respondent’s gun; (3) respondent had made repeated efforts to flee, never standing his ground or advancing toward them; (4) even when cornered, respondent had not fired, but had tried to flee; (5) respondent had fired a warning shot; (6) even when they had been shot, the attackers had continued to advance; (7) the attackers were older and physically larger than respondent; (8) respondent had been outnumbered four to one; and (9) all four attackers had been drinking.
Although there are some similarities between S.M. and the present case, the similarities are minor when compared to the distinctions. In both situations, the defendant had been armed, had brandished his weapon, and had backed away from the victim or victims. However, in the present case, defendant had backed away only after he had provoked Alejandro by calling him names and brandishing the shotgun. In addition, defendant had gone to his apartment purposefully to get the shotgun because he had been angered by Alejandro
The foregoing analysis also indicates that defendant has failed to prove the fourth and fifth elements necessary to establish self-defense: the force must have been necessary to avert the danger and deadly force must have been necessary. As discussed, unlike in S.M., defendant was not being physically attacked and was neither outnumbered nor placed in a no-exit position. Further, once inside his apartment building, defendant reverted to the role of aggressor and remained on the stairs, ready to shoot as soon as Alejandro pushed open the door. The evidence clearly shows that Alejandro never fully entered the vestibule before he was shot. We find these circumstances similar to those in People v. Smith (1978),
We further find defendant’s reliance on People v. Morris (1987), 162 Ill. Ápp. 3d 1046, and People v. Eatman (1950),
We find Morris factually distinguishable from the case at bar. In Morris, the victim was fully inside the building and there was evidence to suggest that the victim had fired a shot in the direction of defendant’s apartment while in the vestibule of the building. Further, defendant and another witness heard defendant’s sister yell, “Don’t shoot me.” In the present case, Alejandro had barely pushed open the front entrance door when he was shot, was not armed with a gun, and the evidence suggests that defendant was ready and waiting to shoot Alejandro whether or not Alejandro threatened him with death or great bodily harm.
In addition, we find People v. Eatman (1950),
Accordingly, based on the facts and circumstances of the present case, we conclude that there was ample evidence from which the trial judge could have determined that defendant’s belief that he had to use deadly force was unreasonable.
Next, defendant maintains that the trial court’s decision to allow the State to add an additional count to defendant’s information more than 120 days after defendant had been taken into custody violated defendant’s right to a speedy trial as set forth in section 103— 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5(a)), which states, in pertinent part:
“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.”
Preliminarily, we note that there is no issue on appeal as to whether defendant’s right to a speedy trial was violated with respect to the murder charge. Rather, the issue concerns only the charge of unlawful use of a weapon. Defendant was arrested on June 9, 1985, and he was charged by information with the offense of murder on August 16, 1985. During the period between June 9 and August 16, the record indicates that the parties were negotiating for a reduced charge. Trial commenced on December 1, 1985, at which time the State sought leave to add a second count, charging unlawful use of a weapon. Defense counsel objected on the ground that defendant’s right to a preliminary hearing on the second offense was being violated and that it was too late to file an information. The court allowed the State to file its additional count.
Although Williams and King support the legal principles relied upon by defendant, they are inapplicable to defendant’s situation. Unlike in Williams and King, defendant has waived his right to discharge on speedy trial grounds by failing to apply for discharge prior to his conviction and by failing to raise the speedy trial issue in his post-trial motion. People v. Pearson (1981),
Defendant next contends that defense counsel’s failure to move for discharge under the speedy trial statute prior to conviction deprived him of his sixth amendment right to effective assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, “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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington (1984),
In the present case, defendant argues that no justification exists for his counsel’s failure to move for a speedy trial discharge on the unlawful use of a weapon charge. In our view, the record supports defendant’s contention that defense counsel’s failure to move for a discharge was not a tactical decision. When the State sought leave to add the second count, defense counsel objected on the grounds that addition of the count at that late date deprived defendant of his right to a preliminary hearing. While defense counsel’s objection indicated an attempt to represent defendant’s best interests, we conclude that, under the circumstances of this case, defense counsel’s failure to
Next, defendant contends that in the event his conviction for the unlawful use of a weapon is reversed, the cause should be remanded for resentencing because the trial court may have been influenced by the unlawful use of a weapon conviction when it imposed the sentence for voluntary manslaughter. (People v. Conover (1981),
In reaching a determination as to whether a cause should be remanded for resentencing when less than all of the convictions have been reversed, the reviewing court must consider whether the trial court may have been influenced by the reversed convictions when it imposed sentences for the remaining offenses. (People v. Guppy (1975),
Finally, defendant contends that the trial court abused its discretion when it imposed a seven-year sentence for voluntary manslaughter and a four-year sentence for the unlawful use of a weapon. In light of our reversal of defendant’s conviction and sentence for unlawful
It is well established that a trial court’s sentencing will not be disturbed absent a showing of an abuse of discretion. (People v. Perruquet (1977),
In the present case, prior to imposing the sentence, the trial court specifically stated that it had considered the factors in aggravation and mitigation, the arguments by counsel and defendant’s oral and written statements made during the sentencing hearing. Thus, in light of the seriousness of the offenses, the relevant statutory sentencing provision (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(4)), and the court’s clear statement that it had considered all relevant factors, we conclude that the trial court properly sentenced defendant to a seven-year term of imprisonment for the conviction of voluntary manslaughter.
For the aforementioned reasons, we affirm the voluntary manslaughter conviction and the sentence imposed for that offense and reverse the conviction and sentence with respect to the unlawful use of a weapon charge.
Affirmed in part; reversed in part.
BUCKLEY and MANNING, JJ., concur.