2022 IL App (4th) 210526-U
Ill. App. Ct.
2022

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TARVELLE J. WILLIAMS, Defendant-Appellant.

NO. 4-21-0526

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

September 26, 2022

2022 IL App (4th) 210526-U

JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice Turner concurred in the judgment.

Appeal from the Circuit Court of Sangamon County No. 19CF63 Honorable Jеnnifer M. Ascher, Judge Presiding.

NOTICE This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

JUSTICE STEIGMANN delivered the judgment of the court.

Presiding Justice Knecht and Justice Turner concurred in the judgment.

ORDER

¶ 1 Held: The аppellate court affirmed defendant‘s sentence, concluding that the trial court did not improperly consider an element of defendant‘s offenses in aggravation at sentencing.

¶ 2 In January 2019, defendant, Tarvelle J. Williams, was charged with (1) aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2018)) and (2) being an armed habitual criminal (id. § 24-1.7(a)). In June 2021, a jury found defendant guilty on both counts. Later, the trial court sentenced defendant to an aggregate sentence of 23 years in рrison.

¶ 3 Defendant appeals, arguing that the trial court erred by considering an element of the offense as an aggravating factor when fashioning defendant‘s sentence—specifically, ‍​‌‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‍defendаnt argues the court considered “the fact that a shooting occurred” as a factor in aggravation. We disagree and affirm defendant‘s sentence.

¶ 4 I. BACKGROUND

¶ 5 A. The Charges

¶ 6 In January 2019, the State charged defendant with (1) aggrаvated battery with a firearm and (2) being an armed habitual criminal. The charges alleged that defendant shot D.P. in the leg with a firearm and at the time defendant possessed the firearm, he had previously been convicted of (1) aggravated discharge of a firearm and (2) unlawful possession of a weapon by a felon.

¶ 7 In April 2019, the State filed a “Notice of Intention to Seek an Extended-Term Sentence,” allеging that D.P. was a minor under the age of 12 years at the time of the shooting. See 730 ILCS 5/5-5-3.2(b)(3)(i) (West 2018).

¶ 8 B. The Trial

¶ 9 In June 2021, the trial court conducted defendant‘s jury trial.

¶ 10 Rinodda W. testified that D.P. was her seven-month-old daughter. On January 20, 2019, Rinodda, D.P., and Rinodda‘s boyfriеnd, Darrel P., were at their apartment visiting with their roommates, Raneasha Smallie and Tysean Love. Smallie and Love had an argument, prompting Smallie to leave. At that time, Rinodda, D.P., and Darrell went to their bеdroom. Rinodda was laying on the bed with D.P. and could see the front door of the apartment through the open bedroom door. While in the bedroom, Rinodda saw a person walk by the bedroom window, but she cоuld not identify the individual.

¶ 11 After a few minutes, Smallie returned to the apartment and began arguing again with Love. A few minutes after that, Rinodda heard three or four gunshots. She noted a “stinging on [her] side” and discovered that D.P. “had a big gash between her legs.” Rinodda saw the shooter fire from the front door and identified him as defendant. Rinodda testified that defendant appeared to have been aiming for Love, who was standing in front of thе front door to the apartment.

¶ 12 Love testified that defendant walked up to the door, demanded Love “go in the house, the apartment,” and then fired his pistol multiple times at Love.

¶ 13 After police arrived, emergеncy personnel took D.P. to the hospital where she was treated for a gunshot wound. D.P. remained hospitalized for a month and a half.

¶ 14 The jury found defendant guilty of both counts.

¶ 15 C. The Sentencing Hearing

¶ 16 In August 2021, the trial court conducted a sentencing hearing. When issuing its sentence, the court discussed the aggravating and mitigating factors and stated the following: “I find that the factors in aggravation are that a shooting did occur in the morning hours in an apartment complex in a residential neighborhood. I find the factors in mitigation to be the defendant‘s work history along with his family connections.”

¶ 17 The trial court sentenced defendant to consecutive prison terms of 15 years for aggravated ‍​‌‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‍battery and 8 years for being an armed habitual criminal, an aggregate 23 years in prison.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 Defendant appeals, arguing that the trial court erred by considering an element of the offense as an aggravating fаctor when fashioning defendant‘s sentence—specifically, defendant argues the court considered “the fact that a shooting occurred” as a factor in aggravation. We disagree and аffirm defendant‘s sentence.

¶ 21 A. Plain Error Review and Ineffective Assistance of Counsel

¶ 22 Defendant concedes that he forfeited his claim on appeal by failing to raise it in the trial court but requests review under both prongs of the plain-error doctrine. Alternatively, defendant argues his claim of error can be reviewed as a claim of ineffective assistance for counsel‘s failure to raise the issue at the sentencing hearing.

¶ 23 1. Plain Error

¶ 24 A defendant‘s forfeited claim may be reviewed under the plain-error doctrine in either of two instances:

“(1) when ‘a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error,’ or (2) when ‘a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process, regardless of the closeness of thе evidence.‘” People v. Walker, 2021 IL App (4th) 190073, ¶ 17, 188 N.E.3d 1235 (quoting People v. Sebby, 2017 IL 119445, ¶¶ 48, 89 N.E.3d 675).

The first question under either prong of the plain-error doctrine is whether a clear or obvious error occurred at all. Id. Defendant bears the burden of persuasion. Id.

¶ 25 2. Ineffective Assistance

¶ 26 All defendants have the constitutional right to effective assistаnce of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To prevail on an ineffective assistance claim, a defendant must demonstrate that (1) counsel‘s performance fell ‍​‌‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‍below an objective standard of reasonаbleness and (2) counsel‘s deficient performance prejudiced the defendant. People v. Veach, 2017 IL 120649, ¶ 30, 89 N.E.3d 366 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). A failure to satisfy either prong precludes a finding of ineffectiveness. People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.

¶ 27 B. Consideration of an Element Inherent to the Offense

¶ 28 Defendant asserts that the trial court‘s mentioning thе shooting when it issued defendant‘s sentence demonstrates that the court considered the shooting—an element inherent in defendant‘s convictions—as an aggravating sentencing factor. If true, the trial court would have committed obvious error. However, we conclude the trial court did not consider the shooting in aggravation.

¶ 29 1. The Applicable Law

¶ 30 “[A] trial judge, when issuing a sentence, must not consider as an aggravating factor an еlement that is inherent in the crime for which the defendant is being sentenced.” Brown, 2019 IL App (5th) 160329, ¶ 18. However, the trial court “need not unrealistically avoid any mention of such inherent factors, treating them as if they did not exist.” People v. O‘Toole, 226 Ill. App. 3d 974, 992, 590 N.E.2d 950 (1992). Accоrdingly, it cannot be error for a trial court, when sentencing a defendant convicted of first degree murder, to mention that someone died.

¶ 31 When a defendant alleges the trial court considered an imрroper factor, appellate courts review the record as a whole because “‘[a]n isolated remark made in passing, even though improper, does not necessarily require that [the] defendant be resentenced.‘” Brown, 2019 IL App (5th) 160329, ¶ 18 (quoting People v. Fort, 229 Ill. App. 3d 336, 340, 592 N.E.2d 1205 (1992)).

¶ 32 Because the trial court is in the best position to fashion an appropriate sentence, appellate courts will not disturb a court‘s sentence аbsent abuse of discretion. Id.

¶ 33 2. This Case

¶ 34 A person commits aggravated battery with a firearm when he (1) knowingly causes injury to another person by (2) discharging a firearm. 720 ILCS 5/12-3.05(e)(1) (West 2018). A person commits the offense of being an armed habitual criminal when he possesses a firearm after having been convicted ‍​‌‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‍of two qualifying offenses—in this case, aggravated discharge of a firearm, and unlawful possession of a weapon by a felon. Id. § 24-1.7(a).

¶ 35 Defendant takes issue only with the trial court‘s stating, “I find that the factors in aggravation are that a shooting did occur in the morning hours in an apartment complex in a residential neighborhood.” (Emphasis added.) Defendant argues that by saying that a shooting occurred, the court indicated it was considering an element of the offense in aggravation. We disagree.

¶ 36 As an initial matter, a “shooting” is not an element of the offense of being an armed habitual criminal. That offense requires the mere possession of a firearm, not the use of a firearm. Accordingly, defendant‘s claim fails at the threshold as to his sentenсe for being an armed habitual criminal.

¶ 37 Use of the firearm, or “a shooting,” is an element of the offense of aggravated battery with a firearm. Nonetheless, the trial court‘s mere mentioning of “a shooting” in this сase did not constitute error. We emphasize that “a sentencing court need not unrealistically avoid any mention of such inherent factors, treating them as if they did not exist.” O‘Toole, 226 Ill. App. 3d at 992. In other words, it cannot be errоr simply to mention that a shooting occurred when sentencing a defendant for aggravated battery with a firearm.

¶ 38 In this case, the record is clear that the court‘s mentioning of “a shooting” was merely providing context for the aggravating factor that the shooting occurred in a residential apartment complex. Defendant‘s firing a gun in an apartment building, in the morning, when people are more likely to bе at home, clearly demonstrates defendant‘s utter disregard for the safety of others. See People v. Hibbler, 2019 IL App (4th) 160897, ¶ 71, 129 N.E.3d 755 (“Anything and everything beyond the minimum conduct necessary for the defendant to be found to have engaged in criminal bеhavior is entirely appropriate ‍​‌‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‍for a sentencing court to consider.“). Indeed, the unintended victim of defendant‘s crime was a seven-month-old infant who was in a different room of the apartment. Sеe id. (“The trial court in [Hibbler] recognized the additional threat defendant‘s actions caused, and its doing so was entirely appropriate.“). The trial court correctly considered the location of the offensе as the aggravating factor, not the shooting itself.

¶ 39 Because the trial court did not base its sentence on an element of the offense and the sentence was not manifestly disproportionate to the nature of the offense, we conclude that the trial court did not err. Accordingly, defendant cannot establish plain error, and we honor his forfeiture. For the same reasons, defendant‘s counsel did not render ineffective assistance by failing to object to the court‘s comments at the sentencing hearing. An attorney “cannot be considered ineffective for failing to make or pursue what would have been a meritless motion or objection.” People v. Rogers, 2021 IL 126163, ¶ 32, 184 N.E.2d 222.

¶ 40 III. CONCLUSION

¶ 41 For the reasons stated, we affirm the trial court‘s judgment.

¶ 42 Affirmed.

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