People v. Simmons

record, Reviewing say we cannot that the Commission’s deter- that Mayes permanently totally contrary mination is disabled is weight Popper opined Mayes the manifest of the evidence. Dr. continually opined would never be able to work and Dr. Acuna Mayes unemployable. tapes was disabled and Neither surveillance Further, Blonsky’s report opinion. nor Dr. altered Dr. Acuna’s the rec- Mayes years ord reveals that was 60 old at the time of the Commis- hearing. only seventh-grade education, sion’s He had and his entire history heavy laboring work consisted of tasks. He had no vocational training and had been years. out of the work force for over 20 Edward Steffan, counselor, Mayes’ Mayes vocational rehabilitation stated that capable gainful employment, nor was he a viable candidate Pastsavos, any position identified David rehabilita- Navistar’s tion consultant. There is more than sufficient evidence the record support the Commission’s decision. reasons, foregoing judgment For the of the circuit court of County respect penalties Cook is reversed with to the issue of fees, and affirmed in all respects. respect other With to the issue of penalties, the decision of Commission is reinstated. part; part;

Reversed affirmed Commission decision reinstated in part.

McCULLOUGH, P.J., HOFFMAN, O’MALLEY, and HOLD- RIDGE, JJ., concur. ILLINOIS, Plaintiff-Appellee,

THE THE OF v. DANA PEOPLE OF STATE SIMMONS, Defendant-Appellant. D.

Second District No. 2 — 00—0695

Opinion filed June J., dissenting. CALLUM, DeWitt, Appellate Defender’s Joseph

G. and Kim M. both of State Weller Office, Elgin, appellant. of Logli, Attorney, (Stephen A. of E. and Pat-

Paul State’s Rockford Norris Office, Attorneys Daly, Appellate D. Prosecutor’s rick both State’s counsel), People. for the opinion JUSTICE HUTCHINSON delivered the

PRESIDING the court: defendant, Simmons,

In D. the of convicted Dana (West 1994)). (720 1(a)(1) fense of murder Defendant imposed imprisonment. trial court a sentence of 80 appealed, this court reversed his conviction and remanded Simmons, (August for a trial. See No. 2 — 96—1077 cause new 1998) 23). Supreme Court Rule (unpublished pursuant order de February retried, jury again and a convicted 2000 defendant was first-degree murder; the trial court sentenced fendant the offense denial years’ imprisonment. Following the trial court’s defendant to 80 motion, timely contends posttrial appeals. of his Defendant counsel, challenges the that he received the ineffective assistance sentence, authority and trial extended-term of an imposition trial court abused its its claims that the discretion 80-year affirm. sentence. We commenced, in limine for

Just defense counsel moved before referring prohibiting the State from the trial to enter an order court witness, Patterson, during its cross- as “Slick” Sebastian defense hearing, him. The and examination of trial court conducted that the be forbid- requesting clarified that he not State counsel by or other their nicknames referring den from to Patterson witnesses that the State during closing argument statement and but opening to make repeatedly nickname so as permitted to use the should be prejudice defendant. ultimately appear it to demean witness other the nickname “Slick” and The trial court found that to and the identification witnesses were relevant nicknames motion, prohibited which granted matter participants in the but by their referring the witnesses constantly the State from during nicknames its examination or cross-examination of those wit- nesses. (the victim) 10, 1995, record reflects that on March Bocci Wills gas

went to the Amoco station located on West State Street driving Rockford. He was accompanied black Bronco and by two friends, Macklin arrived, Amavlee and Keonta Burnell. they When parked Wills pay phone and he and Macklin exited the vehicle. gas Wills walked toward the eye station and made contact with defen- dant. Defendant at the gas friends, station Rodney with two Kinds later, Sebastian Patterson. A few physical minutes altercation erupted between Wills and defendant. Wills struck defendant in the face, causing his face to They fought bleed. for several minutes while gun others watched. A fell from ground, defendant’s coat to the picked Patterson up gun.

Defendant and fight. Wills continued to Defendant called help, and Kinds retrieved a gun 9-millimeter from began firing his car and toward Wills. gun Patterson took the he had and held it against Mack- lin and warned him not began to move. running Wills toward the Bronco, which Burnell had driven to the area fight of the scene. Wills appeared to have been hit in legs by gunfire and fell ground. to the At point this appeared gun; to have a admittedly he shot at Wills at least four times. Wills suffered a gunshot total of 10 wounds but died as a single result of a gunshot wound to the back of his head. The State’s witnesses testified that defendant stood over the victim and shot him as lay he ground. Defendant, Patterson, Kinds fled the scene.

Defendant left the state and traveled for five months until he and Kinds were arrested in Milwaukee, Wisconsin. previ- Patterson had ously surrendered himself police. to the arrest, At the time of his de- fendant admitted that he had used a handgun 9-millimeter to shoot at Wills. Police found evidence at the scene that at least 17 shots had been fired. parties presented their closing arguments, the trial court

instructed jury, retired to deliberate. The jury found defendant guilty of the first-degree murder, offense of and the trial judgment entered on the verdict. Defendant filed a posttrial mo- tion, and following a hearing, the trial court denied the motion. Proceeding to the sentencing phase, the trial court reflected aggravation. factors in It found that defendant had a substantial his- tory of conduct, criminal including juvenile record, a a misdemeanor offense resisting police officer, a felony and a aggravated offense of battery. The trial court commented that presented the State compel- ling evidence that defendant weapon fired the that killed the victim in flee, execution-style attempting to

an manner while the victim was fallen, and The trial court found that the offense had was wounded. accompanied by exceptionally brutal and heinous behavior indica- eligible cruelty tive of wanton and determined that defendant was sentencing. The to extended-term trial court sentenced defendant a of 80 The trial court denied defendant’s term sentence, timely appeals. motion to reconsider his and defendant prosecutorial a combination Defendant contends him deprived misconduct and the ineffective assistance of counsel of a argues during fair trial. He that the errors State committed numerous closing arguments and the effect of rebuttal cumulative object errors defense counsel’s failure to the constituted ineffective allegations of prosecutorial assistance. Defendant concedes that in posttrial Generally, raised misconduct were not his motion. review, contempo an a must both preserve issue for defendant make a objection alleged include error in motion. posttrial raneous (1994). Banks, 119, failing to See, e.g., People By v. 161 Ill. 2d do so, Enoch, 176, appeal. the issue is on v. 122 Ill. 2d People waived (1988). supreme consistently recognized Our court has that the failure prevents raising raise an in a for a new issue written motion (1996). appeal. People Towns, on 174 Ill. the issue See v. 2d However, requests issue under the that we consider this 615(a); doctrine, Towns, we 134 Ill. R. plain error will do so. See 2d (1980) (stat Carlson, 464, citing People Ill. 2d at 79 Ill. 2d v. that, doctrine, ing plain under error courts address a waived may closely if the is balanced or if the error affects issue evidence rights). substantial argues prosecutor’s closing argument

Defendant that the first him argument right Specifically, rebuttal denied fair trial. argues fight prosecutor posited that the the reason trivial; very likely between Wills and defendant came about was prosecutor reminded the that it was allowed to hear victim’s prosecutor recounted the audiotape; last moments the 911 testimony prosecutors one of the served as medical examiner’s where victim; trajectory the bullets regarding a model asked for a verdict of murder because prosecutor first-degree murder; than nothing conduct deserved less in alleged “Slick” violation prosecutor referred to Patterson as limine-, prosecutor argued argu- in the rebuttal a motion gunfire. provocation to result fistfight ment that was insufficient great deal of latitude prosecutor We note that a is allowed Cisewski, People Ill. 2d closing argument. v. giving (1990). The trial (1987); App. Siefke,

421 determination closing argument gener of the of the propriety clear of ally appeal will be followed on absent a abuse discretion. Cisewski, Arguments 2d at based upon 118 Ill. and statements evidence, therefrom, upon in or inferences the facts reasonable drawn scope argument. People Terry, are the of v. 99 Ill. 2d proper within (1984). misconduct, 508, reviewing allegations prosecutorial 517 In closing arguments the the both State and defense counsel must be entirety, allegedly examined in their the improper remarks must Cisewski, in placed proper be their context. 118 Ill. 2d at 175-76. Even they where certain improper, remarks are found to be will not be error a they considered reversible unless constitute material factor in the or result in prejudice defendant’s conviction substantial to the ac cused such they that the verdict would have been different had not been made. 99 Ill. Terry, 2d at 517. reading

After prosecutor’s closing and defense counsel’s arguments in entirety, prosecutor’s their hold that we remarks did not in constitute a material factor defendant’s conviction or result prejudice substantial such that the would been verdict have different had the not prosecutor’s comments been made. The remarks were all testimony reasonable inferences based presented. and evidence prosecutor’s during closing reference to Patterson “Slick” as his argument previously was allowed trial court and defense rebuttal, counsel was not violation of the motion limine. the prosecutor argued response argument to defense counsel’s regarding provocation. urged jury Defense counsel to consider the mitigating rendering verdict, factors before prosecutor and the argued rebutted defense counsel’s argument. prosecutor that fight between victim fight and defendant fair one-on-one punch that started fight and that the had not escalated point gun justified, where using inference reasonable based testimony presented. evidence We note that also closing trial court instructed the opening statements and arguments Reeves, were not See v. Ill. People App. evidence. 228 3d (1992). Therefore, 788 defendant suffered no error or prejudice result ing prosecutor’s closing argument argument. from the and rebuttal argues object

Defendant also that defense counsel’s failure to during the prosecutor’s closing arguments and rebuttal his prejudiced right and, result, to a fair trial as a he received the ineffective assis tance of Generally, counsel. to establish the ineffective assistance of counsel, a defendant must both that representation show counsel’s fell objective below standard of a reasonable reasonableness that, probability error, exists but for the result of the trial would 668, been Washington, have different. Strickland v. 466 80 L. Ed. U.S. 422 674, (1984); People Albanese, 104 Ill. 2d

2d 104 Ct. 2052 v. S. (1984) Strickland). However, may claim the (adopting we resolve a by reaching only prejudice of counsel ineffective assistance component, prejudice the lack of renders the issue of irrelevant Towns, 453, (1996), performance. v. 174 Ill. 2d People counsel’s (1993). Erickson, 82, 2d citing People v. 161 Ill.

Generally, object and when to decisions such as what matters Pecoraro, Ill. object strategy. People are matters of v. 2d (1997). A trial strategy typi decision that involves a matter of will support People a claim ineffective v. Hob cally representation. (1994), citing Flores, Ill. ley, v. 2d (1989). Moreover, reviewing courts held repeatedly have prosecutor given ability argue be latitude in her or must wide his (1993). jury. People Page, before the 2d 258 probability failed a reasonable

Defendant has to establish that that the outcome trial have been different had existed of his would objected any during prosecu- defense comments made the counsel closing in the the arguments. Nothing tor’s record indicates that result proceeding of would have been had defense counsel the different resulted, strategies. in no it be engaged prejudice such Because cannot strategy the the ef- said that trial of defense counsel denied defendant Accordingly, fective assistance of we hold that trial counsel counsel. not ineffective. was also contends that the cumulative effect of the

Defendant prosecutor’s closing arguments prejudiced jury the rebuttal In him a trial. instances where individual errors committed denied fair alone, not reversal the cumulative effect of by a trial court do merit Batson, of a fair trial. v. 225 may deprive People the errors defendant (1992). cases, App. process Ill. 3d In such due and fundamen be reversed and require tal fairness that the defendant’s conviction Batson, 225 Ill. 3d at In App. the cause remanded for new trial. case, the of present alleged we determined that instances prejudice and did not result in to de misconduct were erroneous alleged the cumulative effect of the Accordingly, fendant. we find that deprive defendant a fair errors at trial did not of trial. authority challenges

Defendant next trial court’s an upon Supreme ruling Court an extended-term sentence based L. Ed. Jersey, in v. 530 U.S. 2d nounced New (2000). case, present In the trial court sentenced 120 S. Ct. 2348 after find years’ imprisonment extended-term of defendant exceptionally brutal or accompanied by ing that offense was cruelty. See indicative of wanton heinous behavior 5/5—8— 5—3.2(b)(2) (West 1994). 1(a)(1)(a), 8—2(a)(1), Defendant cites 5— 5— Lee, App. (2000), upon this v. 318 Ill. 3d 417 which relies court’s People (2000), Joyner, in of App. support conclusion v. 317 Ill. 3d 93 People argument to vacate or reduce sentence. his his

This court decision numer has visited revisited Rivera, In People App. since was v. Ill. Joyner ous times decided. (2002), supreme opinion in upon People we relied our court’s District, Ford, (2001), decision from the First v. 198 Ill. 2d 68 and a Vida, (2001), that our App. v. 3d 554 and decided state’s People principles Apprendi. offend the sentencing scheme did not Rivera, In the trial court found that the murder the defendant was committing guilty accompanied by exceptionally found of brutal cruelty. and heinous indicative of wanton Based behavior determined presented, should evidence it receive of life found imprisonment. sentence natural This court imprisonment specifically of natural defendant’s sentence life imposition authorized statute held that the of the complied Rivera, with the rule announced in Apprendi. App. 3d at 1104. however, Rivera, supreme Since this court decided our has provide glimmer guidance decided three cases that with a us to the respect facing appeal. People Davis, issue now us on v. (2002), jury multiple

Ill. 2d 349 found the defendant counts eligible the offense of murder and thereafter found him death penalty. defendant waived the for the second phase sentencing, and the trial court sentenced the defendant alia, On appeal, challenged, death. inter trial court’s imposition penalty. sentence, of the In affirming death the defendant’s prior analysis holding the Davis court examined its Brownell, (1980), stated, 79 Ill. 2d 508 wherein Brownell court “[tjhere statute, is simply one murder which includes within ait provision for imposition Davis, the of the death sentence.” 205 Ill. 2d Brownell, quoting at 79 Ill. 2d at 527. The Davis court reaffirmed the Brownell and additionally explained decision “[aggravating factors are not of They sentencing elements of murder. are offense Davis, 205 Ill. 2d at factors.” 378. Jackson,

In People (2002), 199 Ill. 2d 286 pleaded the defendant (720 to a guilty felony aggravated battery Class 3 of ILCS 5/12—4 (West 1996)) and, exchange, agreed in State not to seek an extended-term The trial penalty. court elicited facts from the defendant regarding the circumstances of the offense and admonished her extensively specifically regarding and the consequences pleading guilty. accepted basis, The trial court the factual determined that the plea knowing accepted defendant’s voluntary, plea. was the defendant’s behavior sentencing, the trial court found that Then committing exceptionally was brutal and indicative of in the crime an cruelty imposed extended-term sentence of wanton supreme Jackson, appeal Ill. 2d at 288. our imprisonment. On to court, plea waived the Jackson court found that a defendant’s objections Jackson, 199 Ill. 2d sentencing appeal. on Apprendi-based However, supreme within decision the court addressed the at 295. its challenge authority impose an trial to defendant’s rejected The Jackson court imprisonment. extended term argument clearly stated that scheme Jackson, impose trial the extended term. permitted the court 5—3.2(b)(2)(West 1996) (permit citing 2d at Ill. imprisonment upon a ting a trial court to an extended term of finding accompanied by exceptionally brutal or that the offense was cruelty). Accordingly, of wanton Jack heinous behavior indicative statutorily concluded, authorized to son court court Jackson, at 300. impose an extended-term sentence. (2002), Last, Cowan, in Hill v. 202 Ill. 2d 151 the defendant murder, attempted rape, robbery. in 1982 and armed pleaded guilty on imposed The trial an extended-term sentence each conviction finding accompanied by exception based on its that the offenses were Hill, cruelty. indicative of wanton ally brutal or heinous behavior petitioned 2d at for immediate release under defendant (West (735 2000)), seq. et Corpus the Habeas Act ILCS 5/10—101 his extended-term sentences were unconstitutional contending that granted petition, The trial court light of the decision. reversed, appeal, concluding the Hill court appealed. and the State On Hill, 202 Ill. 2d at 152. guilty plea that a waived concerns. by its result reached earlier Although the court’s reversal was dictated from Jackson, principles it nevertheless reiterated its rationale support conclusion. The Hill court reaffirmed Jackson to scheme, statutory sentencing permits a constitutionality of which our impose an extended-term sentence trial court to by exceptionally brutal or heinous accompanied the offense was Hill, cruelty. 202 Ill. 2d at 153. of wanton behavior indicative committing case, charged defendant was present of and degree first convicted offense of murder in the degree. Implicit in the within the offense of murder first sentenced for to the sufficiently admonish a defendant Davis is that a tribunal must that, ag- if certain effectively the defendant is notice extent that an exist, may receive extended-term gravating factors provides opportunity an This admonishment sentence. showing subsequent adequate precludes defense and prepare Here, prejudice that based lack of notice. the record reflects rearraignment hearing the trial court admonished at the that, ag- he and if guilty informed defendant if were found certain found, gravating factors he could receive an extended-term were responded acknowledged sentence. Defendant that he understood the trial court’s admonishment. Davis,

Moreover, in accordance with the rationale of Brownell and murder, statutory we have one scheme for the offense of which not only provides provides imposi for a death also for the sentence of but (West 5—3.2(b) tion of an extended-term sentence. See 730 ILCS 5/5 — 2000). Hill, Pursuant to Jackson reaffirmed scheme at issue here is constitutional and does offend Apprendi. not Hill, reaffirmed statutorily Pursuant to Jackson trial court is imprisonment upon authorized to term defen extended dant a felony when defendant is convicted of and the trial court accompanied finds that by exceptionally offense was brutal or cruelty. present case, heinous behavior indicative of wanton In the jury committing first-degree convicted defendant of the offense of sentencing hearing, murder. At the the trial court found that the of fense accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty determined that defendant was eligible for extended-term sentencing. The trial court thereafter sentenced to a term 80 Pursuant Davis, the the trial factors court considered when it defen sentenced dant to an extended term sentencing were factors and not elements of acknowledge offense murder. We that recent decisions from our supreme court pleaded all involved who guilty defendants and ac knowledge that case, but, circumstance is in the present absent de spite distinction, we general believe that principles Brownell, Davis, Jackson, applicable and Hill are here as well. Therefore, inasmuch as this court and our supreme court have concluded Illinois’s for murder scheme does not offend principles in Apprendi, announced defendant’s claim fails. simple

The dissent proposes question-and-answer format taken from Apprendi to determine the of a constitutionality defendant’s sentence: “does required finding expose greater defendant to a punishment jury’s than that authorized guilty Ap- verdict?” prendi, 530 U.S. at L. Ed. 2d 120 S. Ct. at 2365. The posits jury’s dissent indisputably exposed verdict defen- dant punishment to a range of 20 to 60 for the imprisonment (see (West 8—1(a)(1)(a) offense of murder 730 ILCS 5/5 — 1994)). The subsequent dissent states that the trial “brutal or heinous” exposed greater defendant to a of 100 5—3.2(b)(2) (see 8—2(a)(1), 730 ILCS years’ imprisonment 5— 5/5 — (see 8—1(a)(1)(b) 1994)) imprisonment or life 730 ILCS West 1994)). (West that, did concludes because dissent finding, 80-year or heinous” sentence is make the “brutal entirely rationale is at odds unconstitutional. We believe dissent’s Jackson, Brownell, Davis, and Hill. Apprendi, present case are Initially, we note that the circumstances Apprendi. Apprendi, at issue in In de- dissimilar the situation a firearm for an pleaded guilty possessing fendant to two counts antiper- unlawfully possessing count of an purpose unlawful and one charge firearm Jersey bomb. The New statutes classified the as sonnel offense, range “second-degree” penalty which carried a between 5 a charge as imprisonment. The bomb was classified a and 10 offense, “third-degree” penalty range carried a between three which plea agree- part of the defendant’s years’ imprisonment. As five ment, third-degree on offense was to run concur- the sentence Therefore, rently Jersey under the New with the other sentences. offenses, sentencing second-degree scheme for the two terms, 10-year or would amount to two consecutive penalty maximum years aggregate. 20 hearing a on the accepted pleas

The trial court conducted the of- ground for an extended term on the prosecutor’s motion The purpose. Jersey committed with a New fense was biased law, penalty “hate which carried a legislature had enacted a crime” is, degree, that between 10 range identical to that of crimes in the first sentencing al- The hate crime scheme and 20 imprisonment an “extended term” of lowed trial court to purpose acted with a intimidate upon finding that the defendant ethnicity. 530 U.S. at Apprendi, of their race or the victims because 442, Following the hear- 469-70, L. Ed. 2d at 120 S. Ct. at 147 racial bias and found the crime was motivated ing, the trial court applied. Apprendi, enhancement” held the “hate crime sentence 443, The L. 120 S. Ct. at 2352. trial 470, at 147 Ed. at 530 U.S. defen- sentencing scheme and sentenced the court used the hate crime one firearm offense to shorter years’ imprisonment dant to 12 on the other two counts. concurrent sentences more that led to the se- Supreme Court found that factor The offense of hate an element of the more serious vere to increase the merely aggravating factor used crime and second-degree range for the penalty within the defendant’s sentence Apprendi, 530 purpose. possessing a firearm for an unlawful offense of 492-93, 456-57, at 2364. other L. Ed. 2d at 120 S. Ct. U.S. at second-degree of- words, finding effectively turned first-degree Jersey’s fense into a offense code. Ap- under New criminal 457, U.S. at 147 L. S. prendi, 530 Ed. 2d 120 Ct. at 2365. Based that, analysis, Supreme this ruled than the “[o]ther Court conviction, any penalty fact of a prior fact increases beyond prescribed crime must statutory maximum be submitted to jury, beyond Apprendi, proved reasonable doubt.” 530 U.S. at 147 L. Ed. 2d at 120 S. Ct. at 2362-63. By way analogy, distinguish will our explain we rationale present the facts and circumstances of from those here. In Illinois, first-degree separate offense felony murder is a class (see 5—1(b)(1) (West 2000)) man- involuntary ILCS than 5/5 — (720 3(d)(1) (West slaughter, felony 2000); which is a Class ILCS 5/9 — 5—1(b)(5) (West 2000)). statutory sentencing ILCS 5/5 — penalties scheme for murder ranging includes from (730 8—1(a)(1)(a) (West years’ imprisonment 2000)), ILCS (730 8—2(a)(1) (West years’ imprisonment 2000)), to 100 ILCS 5/5 — (730 (a)(1)(c) (West imprisonment 8—1(a)(1)(b), natural life ILCS 5/5 — (720 (h) 1(b) (West 2000)). 2000)), and death through 5/9— statutory sentencing involuntary manslaughter scheme for includes (730 penalties ranging years’ imprisonment 2 to 5 from ILCS 5/5—8— 1(a)(6) (West 2000)) (730 and 5 to years’ imprisonment ILCS 5/5— 2(a)(5) (West 2000)). separate Illinois also has a hate crime statute 8— (720 (West 2000)), ILCS 4 felony which is a Class for the 5/12 —7.1 (720 first and 2 felony subsequent offense a Class each for offense 7.1(b) (West 2000)). ILCS felony Penalties Class 4 range for a 5/12 — (West (730 8—1(a)(7) years’ from 1 to imprisonment 3 ILCS 5/5 — 2000)) (730 (West 8—2(a)(6) years’ imprisonment and 3 to 6 ILCS 5/5 — 2000)), and penalties felony range years’ for Class 2 from 3 7to (730 8—1(a)(5) (West 2000)) imprisonment ILCS and 7 to 14 5/5 — (730 8—2(a)(4) (West 2000)). years’ imprisonment ILCS 5/5 — case, In the present first-degree defendant was found of murder for first-degree and sentenced was murder. Defendant not found guilty involuntary manslaughter of and sentenced for first- degree murder. concerns be if implicated would this case jury had involuntary manslaughter convicted defendant of but the trial a posttrial court made possessed the requisite intent to commit him first-degree pur- murder and sentenced suant to first-degree sentencing murder scheme.

The jury’s dissent claims a of first-degree conviction the offense of murder exposes a punishment range only to a of 20 to 60 years’ imprisonment. disagree. originally We As stated in Brownell “ Davis, only reiterated ‘there one in Il- is offense of murder linois; capital no distinction is made non-capital between mur- ” Davis, Brownell, 79 2d at 524. quoting Ill.

der.’ “Further, “aggravated,” opposed simple, no as to ‘[t]here is offense of statute, murder which includes murder, simply in Illinois. There is one ” Davis, imposition death provision for the of the sentence.’ within it a Brownell, present In 377, quoting 79 Ill. 2d at 527. 205 Ill. 2d at case, penalty imposed upon did not to have death the State seek Therefore, guilty of found defendant first- defendant. when maximum degree murder, sentence defendant could receive was (West (730 (a)(1)(c) 8—1(a)(1)(b), imprisonment natural 2000)) life ILCS 5/5 — merely years’ imprisonment. not to 60 way analogy is of supported by Our determination here further to Jackson, Jackson. supreme analysis our the defendant (720 battery, felony charged aggravated was a Class 3 ILCS (West 1996)). statutory sentencing aggravated scheme 5/12—4 felony, penalties ranging years’ included from 2 to 5 battery, Class (West 1996)) (730 8—1(a)(6) imprisonment 5 to 10 ILCS 5/5 — (730 (West 8—2(a)(5) 1996)). years’ imprisonment trial years’ court the defendant to extended term of 10 sentenced imprisonment. sentencing court examined the The Jackson clearly to scheme and determined that authorized upon finding that the offense impose an sentence its extended-term indica accompanied by exceptionally brutal or heinous behavior Jackson, Through analysis, Ill. 2d at 300. cruelty. tive wanton range statutory sentencing inherently Jackson establishes felony of Class includes punishment conviction range Therefore, statutory sentencing extended-term statute. years’ imprisonment imprisonment felony for a Class 3 is case, therefore, present taking In the not to 5 sentencing pertaining scheme into consideration range upon a murder, statutory sentencing convic If death is imprisonment penalty death. tion is from 20 here, range only extends then the sought, as was the case impose a trial court here did not Accordingly, life. because the natural life, are not concerns greater than natural implicated. statutorily sentence was

The dissent concedes that defendant’s or heinous” because “brutal yet unconstitutional authorized but reasonable proved beyond a a to finding was not submitted disagree this by a trial court. We also doubt but rather was made true, Apprendi viola- premise as then an Taking premise. dissent’s jury A a following convicts occur in the scenario: tion would also findings. At and makes no other murder a impose 20-year sentence sentencing, is inclined court

429 posttrial but a finding the offense then makes that the offense ac companied by exceptionally brutal or heinous behavior indicative of cruelty. 60-year sentence, wanton It thereafter imposed clearly sentencing range by within the maximum articulated the dissent. Although the “brutal or finding heinous” was not submitted jury or proved beyond doubt, reviewing a reasonable we believe a be hard-pressed court would to find a See constitutional violation. (1995) People Jones, Ill. v. 168 2d that (stating 373-74 trial courts have broad discretionary powers to choose an appropriate sentence statutory range within the permissible pertinent for the criminal of convicted). fense for a defendant has tried and which been it is the Perhaps argument dissent’s that “brutal or heinous” is unconstitutionally vague, an arbitrary, subjective upon factor any sentence, which to range increase either within the lesser or as an impose basis extended-term sentence. However, argument would fail likely supreme because our court has already held that “brutal” “heinous” are not unconstitution ally vague People concepts. LaPointe, See v. 88 2d Ill. 499-501 (1981).

Or, perhaps trying that, the dissent is to argue when the trial court finding, made “brutal or it heinous” increased defendant’s beyond sentence statutory sentence, maximum authorized result- ing in a “sentence enhancement.” Apprendi, n.19, See 530 U.S. at 494 n.19, L. 2d at However, Ed. 120 S. atCt. 2365 n.19. is not this situation, enhancement following the footnote the Apprendi quote the dissent clearly explains relies on the difference between a “sentencing factor” and a “sentence enhancement.” See Apprendi, n.19, n.19, U.S. at 494 L. Ed. 2d at 457 S. 120 Ct. at 2365 n.19. court defined “sentence as enhancement” equivalent functional of an of a greater element offense than the one by jury’s covered guilty Apprendi, n.19, verdict. 530 U.S. at 494 n.19, L. Ed. 2d at 457 120 S. at n.19. Ct. defined “sentencing circumstance, factor” as may “a which be either aggravating character, or mitigating that supports specific sentence range within the jury’s finding authorized defendant is of a particular Apprendi, offense.” 530 U.S. at 494 n.19, n.19, L. at 147 Ed. 2d 120 S. Ct. at 2365 n.19.

A finding factual of “brutal or heinous” is a factor used in determining particular a criminal Jackson, 289; Davis, defendant. See 199 Ill. 2d at see also (2001). 373-74, discussing Ford, 198 Ill. 2d present case, therefore, the trial court’s “brutal or heinous” anwas aggravating circumstance it support specific used to jury’s finding range by

sentence, authorized years, within Ap- of murder. guilty of the offense that defendant was ag- must find proposition jury that a does not stand for the prendi beyond a reasonable doubt. gravating sentencing factors to a and the must jury, must submit prosecution holds that the effectively doubt, find a reasonable those factors would beyond offense, independent e.g., guilty render a defendant a new and manslaughter to first- requisite involuntary factor for mental state degree murder. find case, then, the trial court’s “brutal or heinous”

In our does no. clearly The is There is ing create a new offense? answer effectively Davis, 377, Ill. 2d at greater first-degree murder. no offense than Accordingly, finding Brownell, the trial court’s citing 79 Ill. 2d independent or crime. or did not create a new of “brutal heinous” under merely aggravating circumstance Instead, the committing first-degree defendant was found crime that — punish the factor murder. The trial court considered by jury’s guilty was authorized severely, more the maximum beyond was not verdict. Because defendant’s sentence sentencing scheme, was no our there by statutory authorized enhancement,” claim fails. and defendant’s “sentence discre Last, that the trial court abused its defendant contends Defendant tion it sentenced him to when grounds length of his court to reconsider the asks this response in defendant’s aggressor; the initial that Wills was he shot which was shaped prior case altercation present dysfunctional exposed to a eye; loss of one and he was and suffered the family environment. imposing discretionary powers broad

The trial court has (2000). 2d trial court’s Stacey, v. 193 Ill. People sentence. Stacey, great on review. deference sentencing decision is entitled because is such deference granted 2d at 209. The trial court reviewing position than the generally is in a better the trial court judge The trial has the appropriate sentence. court to determine credibility, the defendant’s such factors as opportunity weigh environment, character, demeanor, general mentality, social moral (1991); Streit, see also habits, v. 142 Ill. 2d age. People (2001). reviewing Golden, App. merely the trial court judgment must not substitute Streit, 142 Ill. differently. weighed these factors it would have because 2d at 19. case, contend present defendant does not

In the fac- mitigating statutory court failed to consider aforementioned (West 2000). 5—3.1(a)(7) Rather, defendant tors. See 730 argues that, factors, if reviewing mitigating this court considers the clearly 80-year we would find that an extended-term sentence was an However, abuse of the trial court’s discretion. this is not our standard Streit, of review. See 142 Ill. 2d at 19. The trial court has a duty mitigation consider evidence in aggravation crafting (West 2000). just sentence. 5/5—5—3.1, See 730 ILCS — 3.2 Our 5—5 review of the record reflects that the trial court aggrava did so at the tion and mitigation phase of the trial. The trial court considered mitigating weighed factors and against severity those factors crime, gunshot which included a fatal wound to the back of the head anof unarmed and wounded victim. Because the sentence imposed by the trial court was within the bounds of that court’s discre tion, there is no reason to disturb that sentence upon based the total ity of the record and presented circumstances to this court. Accord ingly, we affirm defendant’s conviction sentence. foregoing reasons,

For the the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

McLAREN, J., concurs. CALLUM,

JUSTICE dissenting: As we determine whether the constitution permits finding to be by made a judge, rather jury, than a Apprendi instructs us to ask the *** following question: “[D]oes the expose the defendant to a greater punishment than that by jury’s authorized the guilty verdict?” Apprendi, 530 U.S. at L. 147 Ed. 2d at 120 S. Ct. at If the yes, jury answer is the must make finding beyond the a reasonable Here, doubt. judge’s “brutal or heinous” finding exposed defen- dant greater to a than that authorized by jury’s guilty verdict, and defendant’s sentence is unconstitutional. I Accordingly, respectfully dissent.

The following facts indisputable. Alone, are the jury’s guilty verdict exposed defendant to a maximum years’ of 60 imprisonment. 8—1(a)(1)(a) (West 1994). ILCS is, That making before the find- 5/5 — ing, the judge had no statutory authority impose greater sentence. However, after the finding made, was exposed was to a (730 8—1(a)(1)(b) maximum imprisonment (West of life ILCS 5/5 — 1994)) or, purposes for the of extended-term sentencing, (730 imprisonment 5—3.2(b)(2) (West 1994)). 8—2(a)(1), 5— Thus, the judge’s finding exposed defendant a greater punishment than that authorized the jury’s guilty verdict. majority complies with Ap insists that defendant’s sentence impose it. judge statutorily because the was authorized to

prendi statutorily majority states that “a trial court is authorized to *** *** an extended term when the defendant is convicted *** finds offense brutal ***.” trial court that the or heinous obviously true, it does App. 3d at 425. That statement is but not Indeed, not hold Apprendi question. Apprendi answer the does constitutional, statutorily sentence as such a ipso authorized is facto holding Thus, freely no sense. I that defendant’s would make concede unconstitutional, statutorily however, It was sentence authorized. statutorily it was was not submit because authorized fact beyond proved ted to the a reasonable doubt. Unwittingly, accurately summarizing the relevant scheme, states, it majority proves violation. As requires things: term two conviction and the extended Thus, the finding. majority acknowledges trial court’s convic term; rather, expose alone does not the defendant to an extended tion greater punishment statutorily only upon is authorized the trial words, finding. finding exposes In other the defendant to a alone, i.e., by the greater punishment than that authorized conviction jury’s guilty Apprendi question. That is answer to verdict. (2002) (a 430, 442 Tenney, App. v. 329 Ill. is Cf. a conviction eligible imprisonment upon a sentence life murder, aggravat only upon but the existence of certain factors). ing question, this asked it has answered

When court has (invalidating correctly. See 3d at 109-10 life Joyner, App. it Swift, judge’s finding); People based on “brutal or heinous” sentence). (2001) (extended-term App. Ill. 3d 128-29 Rivera, follows, Unfortunately, majority astray. in which the we went case, first-degree murder, In a convicted the defendant jury that heinous,” a judge, finding imposed the crime “brutal or life and the Vida, analysis in we concluded Adopting sentence. the First District’s “specifi the life Apprendi that was not violated because Rivera, Again, App. at 1104. cally by authorized statute.” punishment “specifi is however, does not ask whether statute”; punishment greater is it asks cally by authorized whether Thus, the Rivera by jury’s than that authorized verdict. court, that court, neglected question Ap to answer the like the Vida Indeed, already noted that “the reason presents. this court has prendi Tenney, App. Ill. in Rivera is ing flawed.” n court’s deci- Rivera, relying supreme further in on the In we erred case, In was convicted of in Ford. that sion hearing, and the jury capital sentencing murder. He waived a for his judge found, doubt, beyond a reasonable the defendant was crime eligible penalty. judge for the death then found the “brutal years’ imprisonment. or the defendant to 100 heinous” and sentenced finding court held that the “brutal or heinous” did not supreme in Apprendi. increase the authorized violation of Ford, In The distinction between Ford and Rivera is obvious. maximum to the trier of of death was set facts were submitted Thus, proved beyond fact and a reasonable doubt. when the “brutal or finding finding heinous” a produced imprisonment, sentence of did punishment beyond not increase the in accordance established Rivera, however, Apprendi. with In the facts that were submitted to proved beyond the trier of fact and reasonable doubt established only Thus, maximum the “brutal or finding greater punishment, imprison- heinous” did result in a life ment, which was unconstitutional. Rivera, following majority

After cites three supreme court supposedly “provide glimmer guidance cases that us with respect facing to the issue now appeal.” App. us 3d at 423. view, however, In my each distinguishable case is as as Ford. Davis, supreme reject court followed Brownell argument that death-eligibility charged factors had to be

in However, an indictment. whether a factor must be charged question indictment is a different from whether that factor must be proved Indeed, submitted to a jury beyond a reasonable doubt. Apprendi, Supreme Court specifically declined to address the former Apprendi, n.3, issue. See 530 U.S. at 477 147 L. Ed. 2d at 447 n.3, n.3; Ford, Thus, S. Ct. at 2355 though 198 Ill. 2d at 72 n.1. suggests Davis that the “brutal or charged heinous” factor need not be indictment, in an the case does bear on the issue here —whether a find the beyond factor must reasonable doubt. Hill, In Jackson supreme judges noted that do not exceed their authority imposing extended-term sentences However, based on their “brutal or findings. heinous” the court recognized statutorily that a authorized necessarily sentence is not sentence that complies Indeed, with Apprendi. because the defendants pleaded had guilty, the supreme court declined to address their claims sentences, that their though statutorily authorized, were unconstitu- Thus, tional. in evaluating whether defendant’s sentence is unconsti- tutional, Jackson provide guidance and Hill no at all. I believe inquiry begin that our should end with Apprendi *** “[Djoes

itself. again, asks, Once expose the greater punishment to a than that authorized by jury’s 457, 2d at 120 S. 147 L. Ed. 530 U.S. at Apprendi, guilty verdict?” exposed verdict jury’s Here, yes. the answer is at 2365. Ct. The “brutal or heinous” imprisonment. to 60 jury did Because the life or 100 exposed him to doubt, 80-year finding beyond a reasonable not make that is unconstitutional. I dissent. ILLINOIS, Plaintiff-Appellee, v. THE STATE OF

THE PEOPLE OF WILSON, Defendant-Appellant. DEMETRIUS District No. 2 — 01—0159 Second rehearing denial of June May Opinion filed 2002. Modified

Case Details

Case Name: People v. Simmons

Court Name: Appellate Court of Illinois

Date Published: Jun 12, 2002

Citation: 770 N.E.2d 1271

Docket Number: 2-00-0695

Court Abbreviation: Ill. App. Ct.