NOTICE 2020 IL App (4th) 180174-U This order was filed under Supreme FILED NO. 4-18-0174 March 27, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macon County GAVARIUS T. CARNEY, ) No. 17CF753 Defendant-Appellant. ) ) Honorable ) Jeffrey S. Geisler, ) Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court. Justices DeArmond and Cavanagh concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed the trial court’s sentence.
¶2 In January 2018, a jury convicted defendant, Gavarius T. Carney, of aggravated
battery with a firearm and being an armed habitual criminal (720 ILCS 5/12-3.05(e), 24-1.7(a)
(West 2016)). In March 2018, the trial court sentenced defendant to 14 years in prison for each
conviction and ordered the sentences to be served concurrently.
¶3 Defendant appeals, arguing that his 14-year sentence is excessive, “given the sub-
stantial evidence in mitigation, including his employment history, lack of a violent criminal his-
tory, and community support, which showed his rehabilitative potential.” We affirm.
¶4 I. BACKGROUND
¶5 A. Defendant’s Jury Trial
¶6 Because the evidence presented at the defendant’s jury trial is not at issue in this appeal, we will simply summarize it. The State’s evidence at trial showed that because of a dis-
pute over defendant’s former girlfriend, he shot at another man repeatedly and one of the bullets
went through the victim’s left leg. The victim drove himself to the hospital and called the police
about the shooting. He later identified defendant in a lineup as the person who shot him. A jury
found defendant guilty of both charges.
¶7 B. Defendant’s Sentencing Hearing
¶8 The trial court conducted a sentencing hearing in March 2018. The presentence
report that the court and the parties received prior to the sentencing hearing showed that defend-
ant was 24 years old and had three prior, separate felony convictions for which he served prison
sentences: (1) a 2010 conviction for residential burglary (Class 1 felony); (2) a 2011 conviction
for aggravated fleeing and eluding (Class 4 felony); and (3) a 2013 conviction for burglary
(Class 2 felony). He also had two juvenile delinquency adjudications, including an adjudication
for possession of stolen firearm and residential burglary for which he was committed to the Illi-
nois Department of Corrections for Juvenile Justice.
¶9 At the sentencing hearing, defendant called three witnesses who testified favora-
bly about his character. In defendant’s statement of allocution, he apologized for what happened
to the victim.
¶ 10 The State recommended that the trial court impose a sentence of 20 years for de-
fendant’s armed habitual criminal conviction and 25 years for what the State deemed to be the
more serious conviction of aggravated battery with a firearm. In support of those recommenda-
tions, the State pointed out that defendant had already served three separate prison sentences as
an adult, in addition to having been sentenced to the Department of Corrections for Juvenile Jus-
tice as a juvenile. The State also argued that “[t]here are far too many shootings in Decatur, far
-2- too many people getting hurt or killed, and it has got to stop.”
¶ 11 Defense counsel noted that each conviction carried a possible sentence of 6 to 30
years and asked the court to sentence the defendant “to a minimal term as provided by statute in
each case.” In support of that recommendation, counsel noted that (1) these convictions were de-
fendant’s first involving a crime of violence and (2) he had pleaded guilty to the three prior felo-
nies of which he had been convicted.
¶ 12 The trial court stated that it had reviewed the factors in mitigation as it listened to
the evidence at the sentencing hearing and noted several factors in mitigation. The court also
mentioned factors in aggravation, primarily defendant’s criminal record and the fact that the con-
victions in the present case involved a shooting causing injury in a public place. The court ulti-
mately sentenced defendant to 14 years in prison on each conviction and ordered those sentences
to be served concurrently. The court specifically noted that this was not a case in which it be-
lieved consecutive sentencing would be appropriate.
¶ 13 Defendant did not file a motion to reconsider sentence. This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 Defendant appeals, arguing that his 14-year sentence is excessive, “given the sub-
stantial evidence in mitigation, including his employment history, lack of a violent criminal his-
tory, and community support, which showed his rehabilitative potential.” We affirm.
¶ 16 We noted earlier that defendant failed to file a motion to reconsider sentence. As
a result, he has forfeited the argument on appeal he now seeks to raise. Acknowledging this for-
feiture, defendant nonetheless claims that this court can review the trial court’s alleged error un-
der the first prong of the plain-error doctrine because “the evidence at the sentencing hearing was
closely balanced.” We emphatically disagree.
-3- ¶ 17 In People v. Hanson, 2014 IL App (4th) 130330, ¶¶ 15-16, 25 N.E.3d 1, this court
wrote the following regarding the forfeiture rule as it applies to sentencing issues:
“Section 5-4.5-50(d) of the Unified Code of Corrections (Unified Code)
(730 ILCS 5/5-4.5-50(d) (West 2012)) provides, in pertinent part, as follows:
‘A defendant’s challenge to the correctness of a sentence or to any
aspect of the sentencing hearing shall be made by a written motion filed
with the circuit court clerk within 30 days following the imposition of sen-
tence.’
In People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584, 586 (1997), the
supreme court held that this statute ‘require[s] sentencing issues be raised in the
trial court in order to preserve those issues for appellate review.’ (We note that
section 5-8-1(c) of the Unified Code (730 ILCS 5/5-8-1(c) (West 1996))—the
statue at issue in Reed—is now codified under section 5-4.5-50(d) of the Unified
Code.) The Reed court explained the rationale behind the statute as follows:
‘Requiring a written post-sentencing motion will allow the trial
court the opportunity to review a defendant’s contention of sentencing er-
ror and save the delay and expense inherent in appeal if they are meritori-
ous. Such a motion also focuses the attention of the trial court upon a de-
fendant’s alleged errors and gives the appellate court the benefit of the
trial court’s reasoned judgment on those issues.’ Reed, 177 Ill. 2d at 394,
686 N.E.2d at 586.”
¶ 18 This court wrote in Hanson that sentencing errors raised for the first time on ap-
peal are reviewable as plain error if (1) the evidence was closely balanced or (2) the error was
-4- sufficiently grave that it deprived the defendant of a fair sentencing hearing. Id. ¶ 26. We noted
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE 2020 IL App (4th) 180174-U This order was filed under Supreme FILED NO. 4-18-0174 March 27, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macon County GAVARIUS T. CARNEY, ) No. 17CF753 Defendant-Appellant. ) ) Honorable ) Jeffrey S. Geisler, ) Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court. Justices DeArmond and Cavanagh concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed the trial court’s sentence.
¶2 In January 2018, a jury convicted defendant, Gavarius T. Carney, of aggravated
battery with a firearm and being an armed habitual criminal (720 ILCS 5/12-3.05(e), 24-1.7(a)
(West 2016)). In March 2018, the trial court sentenced defendant to 14 years in prison for each
conviction and ordered the sentences to be served concurrently.
¶3 Defendant appeals, arguing that his 14-year sentence is excessive, “given the sub-
stantial evidence in mitigation, including his employment history, lack of a violent criminal his-
tory, and community support, which showed his rehabilitative potential.” We affirm.
¶4 I. BACKGROUND
¶5 A. Defendant’s Jury Trial
¶6 Because the evidence presented at the defendant’s jury trial is not at issue in this appeal, we will simply summarize it. The State’s evidence at trial showed that because of a dis-
pute over defendant’s former girlfriend, he shot at another man repeatedly and one of the bullets
went through the victim’s left leg. The victim drove himself to the hospital and called the police
about the shooting. He later identified defendant in a lineup as the person who shot him. A jury
found defendant guilty of both charges.
¶7 B. Defendant’s Sentencing Hearing
¶8 The trial court conducted a sentencing hearing in March 2018. The presentence
report that the court and the parties received prior to the sentencing hearing showed that defend-
ant was 24 years old and had three prior, separate felony convictions for which he served prison
sentences: (1) a 2010 conviction for residential burglary (Class 1 felony); (2) a 2011 conviction
for aggravated fleeing and eluding (Class 4 felony); and (3) a 2013 conviction for burglary
(Class 2 felony). He also had two juvenile delinquency adjudications, including an adjudication
for possession of stolen firearm and residential burglary for which he was committed to the Illi-
nois Department of Corrections for Juvenile Justice.
¶9 At the sentencing hearing, defendant called three witnesses who testified favora-
bly about his character. In defendant’s statement of allocution, he apologized for what happened
to the victim.
¶ 10 The State recommended that the trial court impose a sentence of 20 years for de-
fendant’s armed habitual criminal conviction and 25 years for what the State deemed to be the
more serious conviction of aggravated battery with a firearm. In support of those recommenda-
tions, the State pointed out that defendant had already served three separate prison sentences as
an adult, in addition to having been sentenced to the Department of Corrections for Juvenile Jus-
tice as a juvenile. The State also argued that “[t]here are far too many shootings in Decatur, far
-2- too many people getting hurt or killed, and it has got to stop.”
¶ 11 Defense counsel noted that each conviction carried a possible sentence of 6 to 30
years and asked the court to sentence the defendant “to a minimal term as provided by statute in
each case.” In support of that recommendation, counsel noted that (1) these convictions were de-
fendant’s first involving a crime of violence and (2) he had pleaded guilty to the three prior felo-
nies of which he had been convicted.
¶ 12 The trial court stated that it had reviewed the factors in mitigation as it listened to
the evidence at the sentencing hearing and noted several factors in mitigation. The court also
mentioned factors in aggravation, primarily defendant’s criminal record and the fact that the con-
victions in the present case involved a shooting causing injury in a public place. The court ulti-
mately sentenced defendant to 14 years in prison on each conviction and ordered those sentences
to be served concurrently. The court specifically noted that this was not a case in which it be-
lieved consecutive sentencing would be appropriate.
¶ 13 Defendant did not file a motion to reconsider sentence. This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 Defendant appeals, arguing that his 14-year sentence is excessive, “given the sub-
stantial evidence in mitigation, including his employment history, lack of a violent criminal his-
tory, and community support, which showed his rehabilitative potential.” We affirm.
¶ 16 We noted earlier that defendant failed to file a motion to reconsider sentence. As
a result, he has forfeited the argument on appeal he now seeks to raise. Acknowledging this for-
feiture, defendant nonetheless claims that this court can review the trial court’s alleged error un-
der the first prong of the plain-error doctrine because “the evidence at the sentencing hearing was
closely balanced.” We emphatically disagree.
-3- ¶ 17 In People v. Hanson, 2014 IL App (4th) 130330, ¶¶ 15-16, 25 N.E.3d 1, this court
wrote the following regarding the forfeiture rule as it applies to sentencing issues:
“Section 5-4.5-50(d) of the Unified Code of Corrections (Unified Code)
(730 ILCS 5/5-4.5-50(d) (West 2012)) provides, in pertinent part, as follows:
‘A defendant’s challenge to the correctness of a sentence or to any
aspect of the sentencing hearing shall be made by a written motion filed
with the circuit court clerk within 30 days following the imposition of sen-
tence.’
In People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584, 586 (1997), the
supreme court held that this statute ‘require[s] sentencing issues be raised in the
trial court in order to preserve those issues for appellate review.’ (We note that
section 5-8-1(c) of the Unified Code (730 ILCS 5/5-8-1(c) (West 1996))—the
statue at issue in Reed—is now codified under section 5-4.5-50(d) of the Unified
Code.) The Reed court explained the rationale behind the statute as follows:
‘Requiring a written post-sentencing motion will allow the trial
court the opportunity to review a defendant’s contention of sentencing er-
ror and save the delay and expense inherent in appeal if they are meritori-
ous. Such a motion also focuses the attention of the trial court upon a de-
fendant’s alleged errors and gives the appellate court the benefit of the
trial court’s reasoned judgment on those issues.’ Reed, 177 Ill. 2d at 394,
686 N.E.2d at 586.”
¶ 18 This court wrote in Hanson that sentencing errors raised for the first time on ap-
peal are reviewable as plain error if (1) the evidence was closely balanced or (2) the error was
-4- sufficiently grave that it deprived the defendant of a fair sentencing hearing. Id. ¶ 26. We noted
that under both prongs of the plain-error doctrine, the defendant has the burden of persuasion.
Id. (Citing People v. Hillier, 237 Ill. 2d 539, 545, 931 N.E.2d 1184, 1187 (2010)).
¶ 19 In Hanson, we also wrote the following:
“The supreme court ‘has “consistently emphasized the limited nature of
the plain[-]error exception.” ’ [People v.] Rathbone, 345 Ill. App. 3d [305,] 311,
802 N.E.2d [333,] 338 [(2003)] (quoting People v. Easley, 148 Ill. 2d 281, 337,
592 N.E.2d 1036, 1061 (1992)). ‘The plain-error doctrine is not a general saving
clause preserving for review all errors affecting substantial rights whether or not
they have been brought to the attention of the trial court. [Citation.] Instead, it is
a narrow and limited exception to the general rule of forfeiture, whose purpose is
to protect the rights of the defendant and the integrity and reputation of the judi-
cial process. [Citation.]’ (Internal quotations marks omitted.) People v. Allen,
222 Ill. 2d 340, 353, 856 N.E.2d 349, 356 (2006).” Hanson, 2014 IL App (4th)
130330, ¶ 27.
¶ 20 We reaffirm what we wrote in Hanson and reject defendant’s claim that somehow
we should review the trial court’s sentence because the evidence at defendant’s sentencing hear-
ing “was closely balanced.”
¶ 21 It was not.
¶ 22 Not even close.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the trial court’s judgment.
¶ 25 Affirmed.
-5-