People v. Carter

2021 IL App (1st) 191439-U

Opinion

2021 IL App (1st) 191439-U No. 1-19-1439 Order filed December 20, 2021 First Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 19485 ) BRANDON CARTER, ) Honorable ) Frank G. Zelezinski, Defendant-Appellant. ) Judge, presiding.

JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Hyman and Justice Walker concurred in the judgment.

ORDER

¶1 Held: Because the trial court did not abuse its discretion in sentencing defendant, he cannot establish plain error or ineffective assistance of counsel.

¶2 Following a jury trial, defendant Brandon Carter was found guilty of three counts of

attempted murder (720 ILCS 5/8-4(a) (West 2012); 720 ILCS 5/9-1(a)(1) (West 2012)) and

sentenced to an aggregate prison term of 60 years. On appeal, defendant contends that his sentence

is excessive and should be reduced to the statutory minimum of 52 years. We affirm. No. 1-19-1439

¶3 Defendant and co-offenders Quinton Johnson, Dwayne Robinson, and Donyall Garrett

were each charged in the same indictment with the attempted first degree murders of Christan

Pickett, Capri Pickett, and David Shirley. 1 Relevant here, counts III, XI, and XIII for attempted

murder alleged that defendant personally discharged a firearm at Christan, Capri, and Shirley. 2

¶4 On April 7, 2012, Christan was with his aunt Capri and her boyfriend Shirley. After 11

p.m., Christan and Shirley picked Capri up from work and then drove in Shirley’s vehicle to

purchase cigarettes at the 139th and Grace projects in Robbins, Illinois. Shirley drove, Capri sat in

the front passenger seat, and Christan sat in the backseat. Once there, Shirley parked and Christan

exited to buy the cigarettes. He returned and gave a cigarette to Capri. As Christan stood outside

the vehicle, four men approached. He recognized defendant and Garrett, whom he knew by their

nicknames “Droopy” and “Face.”

¶5 The men surrounded Christan and “pulled their guns out.” Garrett said that “Easy” told him

Christan “snitched,” and Garrett should “take it up” with Christan. Defendant knocked on Capri’s

window with a firearm and told Shirley to turn the vehicle off or he would “air it out.” As Shirley

drove away, defendant fired through the window at Capri. Christan ran as “everyone” shot at him.

On April 12, 2012, Christan spoke to police officers and identified defendant and Garrett in

separate photo arrays. On April 18, 2012, he spoke with a detective and an assistant State’s attorney

(ASA), and identified photographs of defendant and Garrett.

1 For clarity, we will refer to Christan Pickett and Capri Pickett by their first names. 2 Johnson was tried and acquitted in a bench trial prior to the start of defendant’s trial. Garret, who was tried simultaneously with defendant before the same jury, was found guilty of three counts of attempted murder, and we affirmed on direct appeal. See People v. Garrett, 2019 IL App (1st) 162908-U. Neither Garrett, Johnson, nor Robinson is a party to this appeal.

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¶6 Christan identified defendant and Garrett in the surveillance video taken in the parking lot

where the shooting occurred. The video showed four men surrounding a vehicle, the vehicle

driving away as a man runs in another direction, and several men shooting firearms.

¶7 Capri testified that when Christan returned from buying the cigarettes, a group of four to

six men quickly approached from across the street. She identified defendant and Garrett, whom

she knew as “Droopy” and “Face,” as two of the men. Garrett approached Christan and said,

“Officer ‘Easy’ said you snitched on me and he took five grand from me and he told me to take it

up with you.” All of the men drew firearms. Defendant tapped on Capri’s window with a firearm,

and said to “cut this mother f*** car off or we [are] going to blow it up.” Capri ducked, and

defendant fired a shot that entered the back of her arm and her lung. As Shirley drove away, Capri

heard numerous gunshots and felt the vehicle’s glass breaking. Capri was transported by

ambulance to Christ Hospital, where a chest tube was inserted to drain fluid from her lungs. As a

result of being shot, she has scars and marks on her arm and back. The doctors were unable to

remove the bullet from her lung. On April 12, 2012, Capri identified defendant and Garrett in

separate photo arrays.

¶8 Shirley identified defendant and Garrett as two of the five men that approached his vehicle

from both sides. Garrett told Christan, who was standing on the passenger side of the vehicle,

“ ‘Easy said you was out here snitching on me, I come to take it up with you.’ ” The other men

then moved to the same side of the vehicle as Garett and Christan. Shirley saw defendant, Garrett,

and another man draw firearms. Defendant tapped on the window with his firearm and said to

“ ‘[t]urn your mother*** car off.’ ” Shirley activated his headlights, and defendant began shooting

and hit Capri. As Shirley drove away, he heard gunshots and the air leaving his tires. The back

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window of the vehicle was “shot out,” but he did not see who was shooting. He realized his head

was bleeding, reached up, and felt a bullet “sitting on top of [his] head.” Shirley later identified

defendant and Garrett in separate photo arrays.

¶9 Illinois State Police sergeant Cary Morin testified that he processed Shirley’s vehicle on

April 27, 2012, observed bullet holes, and recovered five bullets. The parties stipulated that a

forensic scientist examined the recovered bullets and concluded that they were .9-millimeter or

.38-caliber bullets fired from at least two different weapons.

¶ 10 The jury found defendant guilty of three counts of attempted murder during which he

personally discharged a firearm. Defendant’s pre-sentence investigation (PSI) report showed that

he was 28 years old and had prior convictions for aggravated unlawful use of a weapon and

manufacture and delivery of a controlled substance. Defendant was raised by his mother and

described his childhood as “lovely.” He previously worked in construction, self-trained as a barber,

and “ ‘schooled [himself] *** on his own.’ ” Defendant had “good” relationships with his four

children. At the time of the PSI, defendant was wheelchair-bound due to a fall in jail and was

scheduled for back surgery.

¶ 11 At the sentencing hearing, the State argued that defendant participated in an “ambush”

meant to kill Christan and any witnesses, resulting in Capri being shot and seriously injured.

Defense counsel asked for a minimum sentence.

¶ 12 In allocution, defendant asserted his innocence and stated that a woman he was “with” was

unwilling to testify because she was currently involved with someone else. Defendant denied

having a “problem” with Capri or Christan and did not understand why the State’s witnesses lied

at trial. Defendant also mentioned that he had to explain to his children what happened.

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¶ 13 The court indicated that it had considered all of the factors in aggravation and mitigation

and reviewed the PSI. Although defendant’s criminal history did not include convictions for

violent crimes, this case involved a firearm and “gunshots were either fired or actually struck

people.” The trial court imposed concurrent prison terms of 26 years for the attempted murder of

Christan and 28 years for the attempted murder of Shirley. The court found that Capri suffered a

severe bodily injury, and therefore sentenced defendant to a consecutive 32-year sentence on that

count, for a total of 60 years in prison. Defendant did not file a motion to reconsider sentence.

¶ 14 On appeal, defendant contends that his 60-year aggregate sentence is excessive and should

be reduced to the statutory minimum of 52 years, which would provide adequate retribution and

the possibility of release at an age when he would be unlikely to reoffend. Defendant acknowledges

that he has forfeited this issue, but requests plain error review. In the alternative, he contends he

was denied effective assistance by trial counsel’s failure to file a motion to reconsider sentence.

¶ 15 To preserve a sentencing error claim, the defendant must make a contemporaneous

objection and raise the issue in a postsentencing motion. People v. Hillier, 237 Ill. 2d 539, 544

(2010). The plain error doctrine permits a reviewing court to consider unpreserved error when (1)

the evidence is close, regardless of the seriousness of the error; or (2) the error is serious, regardless

of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

¶ 16 In the context of a sentencing hearing, a defendant must show that an error occurred and

either (1) the evidence at the hearing was closely balanced, or (2) the error was so egregious that

it denied the defendant a fair hearing. Hillier, 237 Ill. 2d at 545. The first step in plain error review

is to determine whether an error occurred. See People v. Hood, 2016 IL 118581, ¶ 18 (without

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error, there can be no plain error). A defendant has the burden to establish plain error. See People

v. Thompson, 238 Ill. 2d 598, 613 (2010).

¶ 17 The Illinois Constitution requires that “[a]ll penalties shall be determined both according

to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” Ill. Const. 1970, art. I, § 11. The trial court must consider “all factors in aggravation

and mitigation, including, inter alia, the defendant’s age, demeanor, habits, mentality, credibility,

criminal history, general moral character, social environment, and education, as well as the nature

and circumstances of the crime and of defendant’s conduct in the commission of it.” People v.

Quintana, 332 Ill. App. 3d 96, 109 (2002). Where a sentence falls within the statutorily mandated

guidelines, it is presumed to be proper and will be overturned only where there is an affirmative

showing that the sentence departs significantly from the “spirit and purpose of the law” or is

“manifestly disproportionate to the nature of the offense.” People v. Stacey, 193 Ill. 2d 203, 210

(2000); see also People v. Alexander, 239 Ill. 2d 205, 212 (2010). Absent some indication to the

contrary, other than the sentence itself, a reviewing court presumes the trial court considered all

mitigating evidence presented. People v. Sauseda, 2016 IL App (1st) 140134, ¶ 19. A defendant’s

rehabilitative potential is not entitled to greater weight than the seriousness of the offense. People

v. Reed, 2018 IL App (1st) 160609, ¶ 62. Because the trial judge is in a superior position to observe

defendant and the proceedings and assess such factors as defendant’s credibility, demeanor, and

mentality (People v. Snyder, 2011 IL 111382, ¶ 36), we review the trial court’s decision for an

abuse of discretion. Stacey, 193 Ill. 2d at 209.

¶ 18 Here, defendant was found guilty of three counts of attempted murder during which he

personally discharged a firearm. See 720 ILCS 5/8-4(c)(1) (West 2012). The applicable sentencing

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range was 6 to 30 years in prison for each attempted murder count (see 730 ILCS 5/5-4.5-25(a)

(West 2012)), plus a 20-year mandatory firearm enhancement for personally discharging a firearm

while committing the offenses (see 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2012)). The trial court

imposed sentences of 6, 8, and 12 years for the attempted murders, adding a 20-year sentencing

enhancement on each count.

¶ 19 The record shows the court considered all the factors in mitigation and aggravation, as well

as the PSI in imposing sentence. The court specifically noted in mitigation that defendant had

children and no prior felony convictions for violent crimes. See People v. Willis, 2013 IL App (1st)

110233, ¶ 123 (“If mitigating evidence is presented to the trial court, we are to presume, absent

some indication to the contrary, other than the sentence itself, that the trial court considered it.”).

However, the court also considered the nature of the offense, in which defendant and several other

armed accomplices instigated the conflict by surrounding Shirley’s vehicle, and defendant

personally threatened to “blow *** up” the vehicle. As the victims attempted to flee, defendant

and his accomplices opened fire, wounding Shirley and seriously injuring Capri. Under these

circumstances, imposing a minimum sentence for the attempted murder of Cristan and two and six

years above the minimum for the attempted murders of Shirley and Capri was not an abuse of

discretion.

¶ 20 Defendant argues that a reduction to the statutory minimum of 6 years on all counts would

comport with the Illinois Constitution’s “mandate” that sentences should reflect the goal of

restoring an offender to useful citizenship. While defendant is correct that a sentence should reflect

the goal of restoring the offender to useful citizenship (People v. Jones, 2015 IL App (1st) 142597,

¶ 38), the most important factor in sentencing is the seriousness of the offense, not mitigating

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evidence (People v. Harmon, 2015 IL App (1st) 122345, ¶ 123). Moreover, the existence of

mitigating factors does not require the imposition of a minimum sentence or prevent the imposition

of the maximum sentence. Id.

¶ 21 Ultimately, defendant asks us to reweigh the mitigating factors and substitute our judgment

for that of the trial court, which we will not do. See Jones, 2015 IL App (1st) 142597, ¶ 40. Because

three of defendant’s attempted murder sentences fall at or near the minimum of the applicable

sentencing range, we cannot say that they vary greatly from the spirit and purpose of the law or

are manifestly disproportionate to the nature of the offense. Alexander, 239 Ill. 2d at 212.

¶ 22 As defendant has failed to establish error, there can be no plain error and his procedural

forfeiture must be honored. Hood, 2016 IL 118581, ¶ 18; see also People v. Williams, 2017 IL App

(1st) 150795, ¶ 40 (“There was no error, let alone ‘plain’ error, and so we need not go further in

the plain error analysis.”).

¶ 23 For the same reason, defendant’s claim that he was denied effective assistance because trial

counsel failed to preserve his sentencing claim also fails. A defendant alleging ineffective

assistance must prove prejudice, such that “absent counsel’s deficient performance there is a

reasonable probability that the result of the proceeding would have been different.” People v.

Evans, 209 Ill. 2d 194, 219-20 (2004) (citing Strickland v. Washington, 466 U.S. 668, 687, 694

(1984)). As the trial court did not abuse its discretion, defendant cannot demonstrate any

reasonable probability that the result would have been different had trial counsel properly

preserved the issue. See, e.g., People v. Brown, 2017 IL App (1st) 142877, ¶ 66 (counsel was not

ineffective for failing to file motion to reconsider sentence where there was no reasonable

probability that the sentence would have been different had the motion been filed).

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¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 25 Affirmed.

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