THE PEOPLE OF THE STATE OF ILLINOIS v. JUSTIN CAVAZOS
No. 2-22-0182
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
May 3, 2023
2023 IL App (2d) 220182-U
JUSTICE JORGENSEN
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
No. 08-CF-3323
Honorable Donald Tegeler, Jr., Judge, Presiding.
JUSTICE JORGENSEN delivered the judgment of the court. Justices Birkett and Kennedy concurred in the judgment.
ORDER
¶ 1 Held: Trial court‘s application of sentencing factors did not constitute plain error, nor did the court abuse its discretion in applying a firearm enhancement. Affirmed.
¶ 2 On January 20, 2007, 15-year-old Oscar Rodriguez and his girlfriend, Claudia Lozano, were walking along High Street near Grove Street in Aurora. Gunshots were fired from a passing sports utility vehicle (SUV), killing Rodriguez and injuring Lozano. Defendant, Justin Cavazos (age 16 when the shooting occurred), and his brother, Joshua Cavazos (age 17 when the shooting occurred), were charged in connection with the incident.
¶ 4 On appeal, this court rejected defendant‘s arguments concerning the admissibility of subsequent bad act evidence and gang expert testimony, as well as the constitutionality of his sentence. People v. Cavazos, 2015 IL App (2d) 120444. Later, the case returned to us following our supreme court‘s entry of a supervisory order, directing us to vacate our prior judgment, consider the effect of People v. Buffer, 2019 IL 122327, on the issue of whether defendant‘s sentence constituted an unconstitutional de facto life sentence, and to determine if a different result was warranted. People v. Cavazos, No. 119139 (Ill. Nov. 24, 2021) (supervisory order). However, defendant also filed an unopposed motion, asking that we dismiss as moot his sentencing argument, as the State had agreed in postconviction proceedings that he should receive a new sentencing hearing. Accordingly, we affirmed defendant‘s conviction and dismissed as moot his sentencing arguments. People v. Cavazos, 2022 IL App (2d) 120444-B.
¶ 5 On March 18, 2022, defendant received a new sentencing hearing, and the trial court imposed a 41-year aggregate sentence. The court denied defendant‘s motion to reconsider, and defendant appeals. For the following reasons, we affirm.
A. Trial
¶ 6 ¶ 7 ¶ 8 Detailed facts concerning the trial proceedings were set forth in Cavazos, 2022 IL App (2d) 120444-B, ¶¶ 5-60. For context, however, we summarize that, on January 20, 2007, defendant and Joshua Cavazos, both members of the Insane Deuces street gang, were in Aurora at another gang member‘s apartment, where gang-owned firearms, known as “nation guns,” were stored and available for any gang member to use when “hunting” for rival gang members to shoot. Joshua wanted to go shoot someone; defendant showed off that he had a gun. Defendant, Joshua, and two other gang members then went “hunting” in a stolen SUV, and defendant brought the gun. Joshua, the shooter, sat in the SUV‘s front passenger seat, while defendant sat in the rear driver‘s-side seat. They saw Rodriguez and Lozano walking along High Street. Defendant engaged in “false flagging,” i.e., throwing the rival gang‘s signs and yelling rival gang slogans, and Rodriguez “represented” by throwing up the Latin Kings crown. Defendant then gave the other backseat passenger, David Hernandez, the gun. Hernandez refused to shoot and passed the gun back to defendant, who then passed the weapon to Joshua. Joshua fired four gunshots, killing Rodriguez and injuring Lozano.
¶ 9 As noted, defendant and Joshua were charged in connection with the incident.1 The jury convicted defendant, on an accountability theory, of first-degree murder, attempted first-degree
B. First Sentencing Hearing
¶ 10 ¶ 11 At defendant‘s first sentencing hearing, the trial court, Judge Timothy Sheldon presiding, reviewed its “170 pages of notes” from trial, the presentence report, “which because of [defendant]‘s age has mostly his juvenile record,” the financial impact of incarceration, and the aggravating and mitigating evidence. It noted that it did not find “any factors in mitigation worthy of comment,” but without explanation found three aggravating factors applicable, namely, defendant had a history of prior criminal activity, the need for deterrence, and that the crime involved an organized gang. The court sentenced defendant to 20 years’ imprisonment for first-degree murder (see
¶ 12 Defendant moved the court to reconsider the sentence, particularly in light of his age and the fact that he was not the shooter. He asked that the court reduce the sentences for attempt murder and possession of a stolen motor vehicle to their respective minimums. The court denied defendant‘s motion, noting that it had given the sentence a great deal of thought and that it had tried to make the sentence close to that received by his brother, Joshua (which, at that time, totaled 75 years’ imprisonment (20 years for murder with a 25-year add-on, 10 years for attempt murder with a 20-year add-on, and 3 years for possession of a stolen motor vehicle)).
C. Second Sentencing Hearing
¶ 13 ¶ 14 As previously noted, on appeal, this court affirmed defendant‘s sentence and, ultimately, found moot his sentencing arguments because the State had agreed that defendant should receive a new sentencing hearing. Cavazos, 2022 IL App (2d) 120444-B.
¶ 15 On March 18, 2022, a second sentencing hearing occurred before Judge Donald J. Tegeler (the original sentencing judge, Timothy Sheldon, retired).
¶ 16 Defendant submitted a group exhibit of mitigation letters in his support, a group exhibit of certificates of achievement and participation in education programs, and an academic paper concerning juvenile development for sentencing purposes. In part, this evidence reflected that defendant was one of 20 students, out of more than 100 applicants, accepted into Northwestern University through its “highly competitive” Prison Education Program. He had received his associate‘s degree, and completion of his bachelor‘s degree was anticipated in spring 2023. Defendant presented numerous letters of support from Northwestern professors and graduate students, commenting favorably on his work ethic, abilities, and personality.
¶ 18 Defendant‘s stepfather, Mike Loken, testified that he owns a carpentry business. For around 40 days, defendant lived with Loken and defendant‘s mother prior to his arrest in this case. During that short time, defendant was preparing for junior college and worked for Loken. Loken testified that defendant worked hard and that his performance was “very good.” Loken speaks to defendant around four or five times each month, and defendant also speaks with his mother multiple times weekly and his father a few times monthly. According to Loken, since defendant has been in custody, he has completely changed, as he is looking toward his future, trying to get his life back on track, and working on his education. In addition, Loken has seen other signs of maturity, such as defendant‘s efforts to connect with the family through communication with his mother and sending cards to his nieces. When defendant is released from prison, Loken “definitely” will allow him to live with him, his wife, and defendant‘s nieces and hopes that he will work for the family business. In addition, “I‘m pretty sure he‘s going to continue to keep going to school. He loves the school. He loves the people he‘s working with from Northwestern.”
¶ 19 Defendant made a statement in allocution. In part, he apologized to the victims and their families, recognizing that “sorry” was inadequate. He apologized to his own family, including Joshua, for putting them through the painful situation, and he recognized that his mother tried to keep him out of trouble. Defendant explained that, while it may be hard to understand why someone would join a gang, it was the environment that surrounded, shaped, and influenced him. He noted that, when he was shot in a park during gang crossfire as a child, no one discussed with him why the shootings occurred, that it was wrong for someone to shoot him, he received no counseling, and he simply had to put it behind him. He grew up angry. Nonetheless, defendant
¶ 20 The State presented transcripts from the prior proceedings, as well as an arrest warrant and indictment against defendant for an attempt first-degree murder (the subject of other-crimes evidence introduced at trial) that was later nolle prossed. In addition, it presented four impact statements from Rodriguez‘s family.
¶ 21 The State represented to the court that it was cognizant and mindful of defendant‘s attempts to rehabilitate himself while incarcerated, but reiterated that defendant was an active participant in the offenses, that he should have “known better,” given that he was shot by gang crossfire at age seven, and “[h]e can‘t wipe the slate clean, Judge, by the fact that he‘s improving himself.” It asked the court to send defendant and other juveniles a message and to impose a 41-year aggregate sentence.
¶ 22 Defendant responded that he was not asking for the court to wipe the slate clean. “That‘s impossible.” However, defendant asked the court to consider the new scientific understanding that has developed concerning juvenile brain development, the caselaw that has evolved concerning it, and the mitigating factors in section 4-4.5-105 of the Unified Code of Corrections (Code) (
¶ 23 The court noted that it had reviewed all transcripts, evidence, and exhibits submitted by the parties, as well as the transcripts and relevant decisions in Joshua‘s case. It adopted Judge Sheldon‘s prior findings related to aggravation and mitigation and considered the factors in
“I‘ve heard a lot of arguments today. And I disagree with some. I agree with a lot of what is said about juveniles. I agree that juveniles don‘t have the mental capacity of adults. But I also agree that a juvenile the age of [defendant] based upon his background knew exactly what a gun was, knew exactly what a gun could do, and knew what he expected that gun to do when he handed it to his brother. He may not be the one who shot but that‘s why he‘s found guilty is because I believe he did know.”
¶ 25 Further, the court recognized that some people in defendant‘s family were gang members and, given the area in which defendant grew up, it would have been a “tough, tough, tough proposition” not to join a gang. “I don‘t suggest it‘s an easy decision to make[,] especially with a juvenile mind. But a juvenile mind still knows right from wrong.” The court reiterated that Rodriguez did not deserve to be killed, even if he flashed a gang sign, and that the court did not
“And, you know, at some point it‘s going to get across to these gangs that if that‘s the way to rise up in the gang, guess what, every one of them almost ends up dead or in jail for a significant period of time. And by the time they‘re 30, their life is over. The person they shot and killed [sic] life is over. And the person who did the shooting almost always gets caught or ends up dead themselves. That‘s not the way to live. That message has to get out to people who are 10 and people who are 30 and people who are 40.
In this case at the age of 7, [defendant] was playing and rival gang members—and I don‘t think [defendant] is in a gang at 7—came up and shot him. He knows what it‘s like to be shot. He knows what the trauma that occurs when somebody is shot. He lived. I suppose unfortunately for [Rodriguez] because if [defendant] sitting here hadn‘t given his brother the gun, Mr. [Rodriguez] may be alive.”
¶ 26 Similarly, the court noted that, when defendant was 12 years old, his uncle was murdered and, so, defendant knew what it was like to lose a loved one, yet he still handed the gun to his brother. “Yeah, there‘s some impetuosity, but knowing what you‘re trying to do is take away a loved one from somebody else.” Despite defendant‘s mom trying to send him away to another school to get away from gangs, defendant did not, according to the court, “want to.”
¶ 27 The court further noted that, when defendant was stabbed in prison by his cellmate, he met with a therapist for months in order to process the stabbing and spent two or three years trying to understand why, when he thought he had a good relationship with his cellmate, it occurred. Yet this is something that Rodriguez never got to do, and his family will forever be trying to understand and process why, when he was just minding his own business, he was killed. “[Defendant] sitting
¶ 28 The court commented that, if it had been sentencing defendant originally, it would have imposed more time than Judge Sheldon did and, in that respect, defendant was very fortunate that Judge Sheldon was the sentencing judge. The court recognized defendant‘s efforts at rehabilitation, commending him for trying to make something of himself while in custody and noting it gave “a lot of credit for what you‘ve done in custody.” Further, it found that defendant was not “the most depraved individual.” It also agreed with defendant that many people in the Department of Corrections lose faith, as well as contact with their families, and it commended defendant for not losing either. The court commented that defendant had a strong family and that Loken obviously had a lot of character and love for his family. The court agreed it had to take into account defendant‘s “very strong” and “very great” rehabilitative potential, “but you also have to pay your debt for what you did.”
¶ 29 The court then commented on Rodriguez and his potential, as gleaned from the victim-impact letters:
“[Rodriguez] had a lot of potential, as I understand. I‘ve read the letters. [Rodriguez] played a sport that I love dearly. I played throughout high school and college. I was fortunate to play soccer until I got too old. I got to get old. I‘ll be upfront, I was a good soccer player but I was never invited to go out to California and play at the age of 15. Many of us get to get old and the retirement is forced on us to play games because our body doesn‘t let us do it anymore. [Rodriguez] didn‘t get that chance.”
¶ 30 The court noted that, in its discretion and because defendant was a juvenile when he committed the offense, he would not increase the sentence on the original murder charge and would
II. ANALYSIS
¶ 31 ¶ 32 On appeal, defendant raises two overarching arguments. First, he contends that a new sentencing hearing before a different judge is required because the court fundamentally misapprehended the principles articulated by Miller, as evidenced by comments reflecting a misunderstanding of juvenile brain development, its consideration of improper aggravating factors, and its failure to apply pertinent mitigating factors. Second, defendant argues that, given that the evidence of his accomplishments while incarcerated demonstrated not just rehabilitative potential, but actual rehabilitation, a 41-year sentence for an offense committed when he was 16 years old, based on an accountability theory, is excessive.
¶ 33 Generally, we review for an abuse of discretion a trial court‘s sentencing decision. See, e.g., People v. Stacey, 193 Ill. 2d 203, 209 (2000). However, when the issue is whether a sentencing court misapprehended applicable law or misapplied sentencing factors, our review is
A. Misapplication of Miller Factors
¶ 34 ¶ 35 Defendant argues first that the trial court misunderstood Miller‘s findings on juvenile brain development, applied improper aggravating factors, and did not apply relevant mitigating factors. Defendant concedes that he did not receive a de facto life sentence and that he is not raising a constitutional challenge. Rather, he contends that the court misapplied aggravating and mitigating factors as related to juvenile sentencing and did so in a manner reflecting a misunderstanding of the principles behind them. Defendant‘s specific contentions of error will be explored individually below, but, in sum, he argues that the court‘s errors were pervasive, such that we cannot determine that the weight the trial court placed upon the improper factors was insignificant, particularly where the comments were not merely dismissive, and he received a sentence 15 years over the minimum.
¶ 36 Preliminarily, however, defendant concedes that he did not raise these arguments in his motion to reconsider the sentence. He nevertheless requests that we review them for plain error, because the court‘s consideration of improper factors: (1) threatened to tip the scales of justice against him, in light of the plethora of mitigating evidence he presented; and (2) deprived him of a fair sentencing hearing. Defendant argues that we should remand the case for resentencing before a different judge.
¶ 37 Under the plain-error doctrine, we may review an unpreserved error where: (1) a clear or obvious error occurred and the evidence is so closely balanced that, regardless of the seriousness of the error, it alone threatened to tip the scales of justice against the defendant (prong one); or (2) a clear or obvious error occurred and, regardless of the closeness of the evidence, the error is so
1. Juvenile Brain Development
¶ 38 ¶ 39 First, defendant contends that the court misunderstood and contradicted the principles enunciated in Miller concerning juvenile brain development where, despite claiming that it agreed that juveniles do not have the mental capacity of adults, it commented that: (1) defendant knew what a gun was and what it could do; (2) a juvenile mind knows right from wrong; and (3) had he been the original sentencing judge, he would have imposed a greater sentence. Defendant notes that the applicable question for sentencing purposes was not whether he knew what a gun could do, but, rather, whether at age 16 he understood the consequences of his decisions and engaged in long-term thinking. Indeed, defendant notes, had he not understood what a gun could do, he could not have been held accountable for the offense. In addition, defendant argues, the question was also not whether he knew right from wrong, but, rather, whether he had sufficient neurological development to think through the long-term consequences of his actions. Again, defendant notes, if he had not understood right from wrong, he could not have been found guilty of criminal conduct. Moreover, he asserts, the judge‘s comments that, had he been the initial sentencing judge,
¶ 40 In its broadest terms, Miller (and its progeny) established that, before sentencing a juvenile to the equivalent of life without parole, a sentencing court must first consider the juvenile offender‘s youth and certain attendant characteristics. See, e.g., Miller, 567 U.S. at 489. Defendant here concedes that he did not receive a life sentence, but he still remains subject to the juvenile sentencing parameters that our General Assembly enacted in response to Miller. For example, because defendant was a juvenile when he committed these crimes,
“(1) the person‘s age, impetuosity, and level of maturity at the time of the offense, including the ability to consider risks and consequences of behavior, and the presence of cognitive or developmental disability, or both, if any;
(2) whether the person was subjected to outside pressure, including peer pressure, familial pressure, or negative influences;
(3) the person‘s family, home environment, educational and social background, including any history of parental neglect, physical abuse, or other childhood trauma;
(4) the person‘s potential for rehabilitation or evidence of rehabilitation, or both;
(5) the circumstances of the offense;
(6) the person‘s degree of participation and specific role in the offense, including the level of planning by the defendant before the offense;
(7) whether the person was able to meaningfully participate in his or her defense;
(8) the person‘s prior juvenile or criminal history; and
(9) any other information the court finds relevant and reliable, including an expression of remorse, if appropriate. However, if the person, on advice of counsel chooses not to make a statement, the court shall not consider a lack of an expression of remorse as an aggravating factor.”
730 ILCS 5/5-4.5-105(a) (West 2016).
¶ 41 The plain language of the statute clarifies that these are additional mitigating factors, meaning they supplement the general statutory mitigating and aggravating factors found in sections 5-5-3.1 and 5-5-3.2 of the Code (
¶ 42 With that framework in mind, we find no error in the court‘s comments that defendant knew what a gun could do, a juvenile mind knows right from wrong, and that it would have initially imposed a more severe sentence. Preliminarily, we note that defendant does not tie these comments to the misapplication of any specific section 5-4.5-105(a) sentencing factor, but argues more generally that the court‘s comments reflect a misunderstanding of the relevant sentencing concepts. Viewing the record as a whole, we disagree. The court was clearly cognizant of the fact that the case was before it for resentencing due to defendant‘s age at the time of the offense and in light of the caselaw that developed subsequent to defendant‘s initial sentencing. It heard
2. Deterrence as Aggravating Factor
¶ 43 ¶ 44 Defendant‘s second argument is that the court, by adopting Judge Sheldon‘s findings from the original sentencing hearing relating to aggravation and mitigation, also adopted Judge Sheldon‘s application of deterrence as an aggravating factor. In addition, the court further emphasized deterrence, where it discussed that gang members need to realize that they will most likely end up in jail or dead and the message needs to get out to people of all ages. Defendant notes
¶ 45 This court recently addressed and rejected a similar argument in Reyes, 2023 IL App (2d) 210423, ¶¶ 40-41. There, we explained that
¶ 46 Here, like the defendant in Reyes, defendant is not raising an argument concerning the constitutionality of the juvenile sentencing scheme. Rather, he is arguing that the court should not
3. Childhood as Aggravating Factor
¶ 47 ¶ 48 Third, defendant asserts that the court considered his difficult childhood as an aggravating factor. For example, the court commented that, based upon his background, defendant knew what a gun was and what it could do, which implies that the offense would not have been as serious if defendant had grown up in a less crime-ridden neighborhood. Further, when discussing the fact that defendant was shot when he was seven years old, the court commented that he therefore knew what it was like to be shot, as well as the trauma that follows, consequently implying that a person who has not been shot would be less blameworthy and, in essence, using his childhood trauma as another reason why he should not have participated in the offense and, ultimately, in aggravation. Finally, when discussing defendant‘s uncle‘s murder, the court stated that defendant knew what it was like to lose someone and, despite impetuosity, defendant knew he was taking away a loved one from somebody else. Defendant argues that, besides off-handedly dismissing the research on juvenile brain development, this reflects that the court again used his childhood suffering as an
¶ 49 As we noted in our analysis of defendant‘s initial argument, when we read the record as a whole, we do not agree that the court considered defendant‘s childhood traumas in aggravation, so much as it found them less mitigating than they might otherwise have been, given the circumstances of the offenses. In other words, the mitigating weight the court afforded defendant‘s past experiences was within its discretion, and, when certain elements of those traumatic experiences mirrored the actions defendant later took, it was not unreasonable for it to find the mitigating weight of those points neutralized. Defendant‘s cited cases are distinguishable. In McKinley, the court expressed that it would not consider evidence of peer pressure as mitigating, referring to it as an “irrelevant factor,” in direct contradiction with
¶ 50 Further, even if there was error, it does not rise to plain error, because the evidence at the sentencing hearing pertaining to the applicability of the firearm enhancement was not closely balanced, nor was the error so egregious as to deny defendant a fair sentencing hearing. See Hillier, 237 Ill. 2d at 544-45. Specifically, the court considered all factors in mitigation and, in doing so, imposed the minimum sentence on the underlying offenses for both first-degree murder, attempt murder, and, essentially, possession of a stolen motor vehicle. These sentences reflect a significant reduction in defendant‘s sentence from that originally imposed, particularly in that the court declined to add to the first-degree murder sentence the originally imposed 15-year firearm enhancement, reduced the underlying attempt-murder conviction from 10 years to the minimum 6, and reduced the original 5-year sentence on the possession charge to only a straight conviction. As such, the only element of defendant‘s sentence left to challenge is the court‘s decision to impose the 15-year firearm enhancement as part of the attempt-murder sentence, which, we note, is also served at 85 percent (as opposed to 100 percent, if it had been added on to the first-degree murder conviction) (see, e.g.,
¶ 51 4. Failure to Consider Mitigating Factors
¶ 52 Fourth, defendant argues that the trial court erred when, by adopting Judge Sheldon‘s findings regarding applicable aggravating and mitigating factors (and where Judge Sheldon had found no factors in mitigation “worthy of comment“), it failed to consider two applicable statutory mitigating factors, namely that the evidence demonstrated his: (1) criminal conduct was the result of circumstances unlikely to recur; and (2) character and attitude indicate that he is unlikely to commit another crime. See
¶ 53 For reasons similar to those described in the foregoing section, we find no error or, if error, no plain error. Preliminarily, as defendant alludes to in his request that we remand with instructions that the judge give due reflection to the relevant mitigating factors, this argument more resembles a suggestion that the court gave improper weight to the mitigating factors, as opposed to a failure to consider mitigating factors. While it is true that, without discussion, the court adopted Judge Sheldon‘s analysis of the general mitigating factors, and Judge Sheldon had found none worth mentioning, it is clear that the court here considered the evidence in mitigation that had developed since defendant‘s initial sentence. Indeed, defendant‘s arguments as to the relevance of the factors that his criminal conduct was the result of circumstances unlikely to recur and that his character and attitude indicate that he is unlikely to commit another crime all depend on evidence that developed and was received after Judge Sheldon‘s initial sentence, all of which the court reviewed and considered here. Thus, while the court did not expressly address the two mitigating factors defendant identifies, we presume it implicitly considered them, as well as the evidence that supported their applicability. See e.g., People v. Walker, 2021 IL App (4th) 190073, ¶¶ 73-74 (the trial court must consider statutory factors in mitigation, but need not recite each factor it has considered; further, “there is a presumption the trial court considered any mitigating evidence before it“).
¶ 54 In any event, any error here does not rise to plain error. Again, defendant‘s mitigating evidence resulted in the bulk of his sentence being reduced, with the sole exception being the
¶ 55 5. Consideration of the Victim‘s Status
¶ 56 Defendant lastly argues that the court improperly considered and emphasized the victim‘s status and drew a personal connection to it. Specifically, he notes that Rodriguez‘s mother, in her victim-impact statement, recounted that he had loved to play soccer and had dreamed of future opportunities to play soccer, including in California. Judge Tegeler commented:
“Oscar had a lot of potential, as I understand. I‘ve read the letters. Oscar played a sport that I love dearly. I played throughout high school and college. I was fortunate to play soccer until I got too old. I got to get old. I‘ll be upfront, I was a good soccer player but I was never invited to go out to California and play at the age of 15. Many of us get to get old and the retirement is forced on us to play games because our body doesn‘t let us do it anymore. Oscar didn‘t get that chance.”
¶ 57 Defendant contends that, while the judge could consider victim-impact statements, his use of the evidence was improper because personal traits of a victim are not relevant to the question of the proper sentence to impose. For example, whether the victim was a “good man” or a soccer player does not render a defendant‘s crime more serious than it otherwise would have been. Here, the fact that the victim was a soccer player was not necessary to understand the seriousness of the crime or any other proper sentencing factor. Defendant argues that, if the victim had played a different sport or no sport at all, the offense would not be any less serious. “Making the error all
¶ 58 We agree that the court‘s extensive victim-centric comments were error. “Personal traits of victims are not relevant to the question of guilt or innocence or to the question of the proper sentence to be imposed.” (Emphasis added.) People v. Walker, 109 Ill. 2d 484, 505 (1985). As defendant notes, this court has also explained that personal traits of a victim may be relevant if necessary to understanding the seriousness of the crime or another sentencing factor, but it is not appropriate if the court considers the personal traits in and of themselves. See People v. Mauricio, 2014 IL App (2d) 121340, ¶ 17 (where the trial judge considered that the victim was a World War II veteran and a “very good man,” we concluded the reasoning was improper because it suggested that, because the victim was a “very good man,” the defendant‘s crime was more serious than it otherwise would have been). We further explained that, while it is entirely appropriate for the court to consider the victim-impact statements, the evidence may not be used to make or imply
¶ 59 Here, the court did not merely consider the victim-impact statements. It emphasized the specific personal traits about Rodriguez described in those statements, detailing Rodriguez‘s interests, talents, and personality, his loss of opportunity, and it connected them to its own interests and life experience, suggesting a more sympathetic victim and tragic crime than, perhaps, it might have been if the victim had lacked those traits. Further, we agree that the court‘s comments implying that it was unfortunate that defendant had lived when he was shot as a seven-year-old child crossed a line, essentially improperly comparing the relative value of defendant‘s life against Rodriguez‘s. We admonish the court that such comments have no place in sentencing.
¶ 60 Still, we cannot find the error rises to plain error. See id., ¶¶ 15-16 (finding error and noting that, because the error was properly preserved, the defendant did not carry the burden of demonstrating prejudice, whereas such a showing would have to be made in a plain-error context). As previously noted, except for the decision to impose the firearm enhancement, the court gave defendant the minimum sentence on the underlying crimes. With respect to the court‘s decision to impose the enhancement, the error neither concerned closely-balanced evidence, nor denied defendant a fair sentencing hearing, as the court‘s imposition of the enhancement was based on the enhancement‘s straightforward applicability in light of legislative intent.
¶ 61 6. Ineffective Assistance
¶ 62 Alternatively, defendant argues that his trial counsel‘s failure to preserve the foregoing arguments constituted ineffective assistance of counsel, because no sound strategic reason can explain the absence of these meritorious issues from the post-sentencing motion, and the failure to raise them was prejudicial, in that the errors were not insignificant and, even if the court would not
¶ 63 It is well-established that, to establish a claim of ineffective assistance of counsel, a defendant must establish both that counsel‘s representation fell below an objective standard of reasonableness and that counsel‘s actions resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Here, even if we were to presume unreasonable assistance, defendant cannot demonstrate prejudice necessary to succeed on his claim. “The failure to satisfy either the deficiency prong or the prejudice prong of the Strickland test precludes a finding of ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d 361, 377 (2000). As explained above, the forfeited arguments were either not meritorious because there was no error or, even where we found error, those errors were not prejudicial because they did not implicate the sole discretionary decision the court made which increased the sentence here to one above the absolute statutory minimum, i.e., the decision to impose the enhancement and the rationale therefore. Counsel cannot be deemed ineffective for failing to raise issues that are not meritorious. Id.
¶ 64 B. Excessive Sentence
¶ 65 Next, defendant argues that the 41-year sentence, and, specifically, Judge Tegeler‘s decision to apply the firearm add-on, constitutes an abuse of discretion. He points to the mitigating evidence that collectively reflects not only rehabilitative potential, but rehabilitation realized, including his: difficult childhood; education at Northwestern University; behavior as a “model prisoner” and rehabilitative activities (beyond his studies) while incarcerated; expressed remorse; and supportive family. Again, defendant clarifies that, since he will serve around 38 years in custody, his 41-year sentence is not de facto life and, therefore, he is not raising a constitutional argument. See, e.g., Dorsey, 2021 IL 123010, ¶ 65. However, he argues that the sentence was
“A 16-year-old who grew up in extremely difficult circumstances that led him into gang life, did not fire the gun, and has repeatedly demonstrated rehabilitation is not the type of person to whom [ ] a discretionary firearm add-on should be applied. [Defendant] is simply not a person whom taxpayers need to pay to incarcerate for nearly four decades. Instead, he has repeatedly demonstrated the ability to be a productive member of society.”
¶ 66 We disagree. As previously noted, we will not disturb a defendant‘s sentence absent an abuse of discretion. People v. Alexander, 239 Ill. 2d 205, 212 (2010). “A sentence will be deemed an abuse of discretion where the sentence is ‘greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.‘” Id. at 212 (quoting People v. Stacey, 193 Ill. 2d 203, 210 (2000)). Absent evidence to the contrary, a sentencing court is presumed to consider the mitigating evidence presented, may determine the weight to give it, and is not required to expressly indicate its consideration of all mitigating factors and the weight it assigned to each. See, e.g., Walker, 2021 IL App (4th) 190073, ¶¶ 73-74.
¶ 67 Here, as previously noted, defendant received the minimum sentence except for the court‘s imposition of a 15-year firearm enhancement. As the State notes, the firearm enhancements are structured to punish varying levels of gun-violence culpability, with the 15-year enhancement being the shortest. See
¶ 68 Further, while the court expressed that defendant needed to be held responsible for his actions, it simply did not apply the firearm enhancement on the attempt murder because it failed to adequately consider mitigating evidence. Rather, it considered the purpose and applicability of the enhancement and determined it appropriately applied, given that a firearm was used by defendant, or one for whom he was accountable, in these crimes. The court correctly assessed and
“(a) Legislative findings. The legislature finds and declares the following:
(1) The use of a dangerous weapon in the commission of a felony offense poses a much greater threat to the public health, safety, and general welfare, than when a weapon is not used in the commission of the offense.
(2) Further, the use of a firearm greatly facilitates the commission of a criminal offense because of the more lethal nature of a firearm and the greater perceived threat produced in those confronted by a person wielding a firearm. Unlike other dangerous weapons such as knives and clubs, the use of a firearm in the commission of a criminal felony offense significantly escalates the threat and the potential for bodily harm, and the greater range of the firearm increases the potential for harm to more persons. Not only are the victims and bystanders at greater risk when a firearm is used, but also the law enforcement officers whose duty is to confront and apprehend the armed suspect.
(3) Current law does contain offenses involving the use or discharge of a gun toward or against a person, such as aggravated battery with a firearm, aggravated discharge of a firearm, and reckless discharge of a firearm; however, the General Assembly has legislated greater penalties for the commission of a felony while in possession of a firearm because it deems such acts as more serious.
(b) Legislative intent.
(1) In order to deter the use of firearms in the commission of a felony offense, the General Assembly deems it appropriate for a greater penalty to be imposed when a firearm
is used or discharged in the commission of an offense than the penalty imposed for using other types of weapons and for the penalty to increase on more serious offenses. (2) With the additional elements of the discharge of a firearm and great bodily harm inflicted by a firearm being added to armed violence and other serious felony offenses, it is the intent of the General Assembly to punish those elements more severely during commission of a felony offense than when those elements stand alone as the act of the offender.”
720 ILCS 5/33A-1 (West 2000) .
Accordingly, we cannot find the court‘s imposition of the enhancement was greatly at variance with the spirit and purpose of the law, when its assessment of the purpose of the enhancement is perfectly consistent with the law‘s expressed spirit and purpose. See Alexander, 239 Ill. 2d at 212.
¶ 69 In addition, we disagree with defendant‘s characterization of his involvement as not critical to the events at issue and his suggestion that, since the gun used was a “nation gun,” had he not been present, the crimes easily could have happened anyway. First, the trial evidence demonstrated that defendant personally possessed the weapon in the apartment prior to the events at issue and that he showed it off and brought it with him when the group decided to hunt rival gang members. So, while the nation gun may have been available to any gang member, it was this defendant who chose to contribute the weapon to the group‘s activities that night. Further, once in the vehicle and after “false flagging” Rodriguez, defendant twice handed the weapon to the vehicle‘s occupants to enable a shooting. Second, that the crimes theoretically could have happened without defendant there is simply speculation.
¶ 70 Defendant points to cases finding juvenile resentencing terms excessive, given the sentencing courts’ failures to give adequate regard to overwhelming evidence of the defendants’ rehabilitation. Those cases do not warrant another result here. To be sure, McKinley, 2020 IL App(1st) 191907, is factually similar, in that the defendant there was also admitted to the Northwestern University program, received accolades from his professors, was a model inmate, and had demonstrated remorse. Indeed, at resentencing, the 16-year old defendant received a 39-year sentence, albeit (unlike here) without parole, for one count of first-degree murder, and the appellate court found the evidence of rehabilitation so overwhelming as to render the sentence excessive, particularly where the trial court only made brief, general references to it and did not afford it adequate weight. Id. ¶ 78. The First District concluded that the defendant was “the epitome of an offender who has been restored to useful citizenship” and reduced the sentence to 25 years. Id. ¶¶ 79, 91. However, unlike here, the alleged abuse of discretion in McKinley did not boil down solely to the imposition of an enhancement. Indeed, the court also did not reduce the sentence based only on the sentencing court‘s failure to consider evidence of rehabilitation, as it also found the court had not properly weighed multiple other factors, such as finding irrelevant the impact of peer pressure, giving improper weight to the need to deter future criminal conduct, and improperly considering the defendant‘s age as it applied to the offense. Id. ¶¶ 87-91.
¶ 71 Similarly, in two other cases upon which defendant relies, the court also found sentences excessive based on a failure to adequately consider evidence of rehabilitation, but, again, those cases did not concern the court‘s exercise of discretion to impose a firearm enhancement and the sentencing courts made other errors. See People v. Bruce, 2022 IL App (1st) 210811, ¶¶ 30-40 (trial court abused its discretion, where it rejected the parties’ 23-year prison term agreement and instead sentenced the 16-year-old defendant to 28 years for two counts of first-degree murder; appellate court noted that it was “paramount” that the defendant was found guilty based on an accountability theory, was the youngest member of the group involved in the crime, was a model prisoner, and, in addition to the characteristics of youth, had a low IQ and mental illness; trial court
¶ 72 In sum, we do not disagree that the evidence of defendant‘s rehabilitation is impressive. However, the trial court also took that into account and, based on defendant‘s behavior and evidence of rehabilitation, it reduced his sentences on the underlying crimes, but found appropriate one firearm enhancement. That decision was not an abuse of the court‘s discretion. We reject defendant‘s excessive-sentence argument and affirm.
¶ 73 III. CONCLUSION
¶ 74 For the forgoing reasons, we affirm the judgment of the circuit court of Kane County.
¶ 75 Affirmed.