People v. Colegrove

2025 IL App (4th) 240882-U

• Court: Appellate Court of Illinois
• Decided: April 1, 2025
• Docket: 4-24-0882
• Status: Unpublished

Opinion

NOTICE 2025 IL App (4th) 240882-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-24-0882 April 1, 2025 not precedent except in the Carla Bender 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. ) Logan County LEWIS A. COLEGROVE III, ) No. 21CF208 Defendant-Appellant. ) ) Honorable ) Jonathan C. Wright, ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Justices Zenoff and Vancil concurred in the judgment.

ORDER

¶1 Held: The trial court properly considered and weighed mitigating factors in sentencing defendant.

¶2 Defendant Lewis A. Colegrove III appeals from his conviction of second degree

murder (720 ILCS 5/9-2(a)(2) (West 2020)). On appeal, he contends the trial court erred by giving

little weight to the statutory mitigating factors of strong provocation and substantial grounds

tending to excuse or justify defendant’s conduct because the court believed the factors were

encompassed in the sentence for the offense.

¶3 We find the trial court did not abuse its discretion in weighing the factors in

mitigation. Accordingly, we affirm.

¶4 I. BACKGROUND

¶5 In September 2021, the State charged defendant with four counts of first degree murder (id. § 9-1(a)(1), (a)(2), (a)(3)) and one count of aggravated battery with a firearm (id. § 12-

3.05(e)(1)) in connection with the shooting of his brother, Michael Colegrove, during an argument.

In December 2022, the State added a charge of second degree murder (id. § 9-2(a)(2)), alleging, at

the time of the killing, defendant believed the circumstances to be such that, if they existed, would

justify or exonerate the killing. Defendant entered into a partially negotiated plea agreement under

which he pleaded guilty to the second degree murder charge in exchange for the dismissal of the

other charges.

¶6 The factual basis for the plea provided that, on September 23, 2021, deputies

responded to a 911 call in Lincoln, Illinois, to investigate a death. Michael had been shot and was

later pronounced dead at the hospital. Defendant was identified as the shooter.

¶7 Defendant’s father, Lewis Colegrove Jr. (Lewis), told the police defendant and

Michael had been arguing, and Michael had been throwing items around the house. Michael tried

to get defendant to fight, but defendant refused. Michael then began to argue with Lewis, making

threats about killing Lewis and burning down the house. Defendant, with a shotgun in his arms,

entered the area of the house where Michael and Lewis were arguing. Michael then went in the

direction of defendant, and defendant shot Michael.

¶8 Defendant stated Michael had become upset with him and started throwing items

around and got in his face, challenging him to fight. He stated he picked up the gun as a scare

tactic, and then Michael came at him. Defendant also spoke about other instances where Michael

had been aggressive with others, using knives and baseball bats. The trial court accepted the plea.

¶9 At the sentencing hearing, the State presented evidence in aggravation, including

evidence of allegations that defendant sexually abused Michael and his stepdaughter. The defense

presented evidence defendant did not have a violent demeanor, while Michael could be violent and

-2- threatening. Lewis testified Michael had been the aggressor in the argument that led to his death.

He also testified defendant had been drinking on the day of the incident and likely was not thinking

straight.

¶ 10 The State recommended a sentence of 14 years’ imprisonment, and the defense

recommended probation. The defense argued multiple statutory factors in mitigation applied,

including (1) defendant acted under a strong provocation, (2) there were substantial grounds

tending to excuse or justify defendant’s conduct, and (3) defendant’s conduct was induced or

facilitated by someone other than defendant. The trial court found those factors were already

encompassed by the plea to second degree murder. After discussing the remaining aggravating and

mitigating evidence, the court sentenced defendant to 10 years’ imprisonment.

¶ 11 Defendant filed a motion to reconsider his sentence, arguing, in part, that the trial

court erred in holding certain mitigating factors were encompassed in the offense of second degree

murder. Following a hearing, the court stated:

“[The] Court finds there is really no facts to support that [defendant’s] criminal

conduct was induced or facilitated by someone other than the defendant. I think the

fact pattern we are talking about here lends itself to strong provocation and also to

substantial grounds tending to excuse or justify the defendant’s conduct though

failing to establish a defense. I don’t find there is a [sic] really any evidence that

someone facilitated or induced [defendant] to commit this act ***.

***

Here, we have a situation where it was pled to Second Degree Murder. And

for the offense itself, it is hard to know exactly what was contemplated by either

side in terms of why it was reduced. Because he said it just simply alleges that he

-3- believed circumstances to be such that if they existed, would justify or exonerate

the killing that was believed was the reason.

So, the Court finds that that is a statutory mitigating factor. I am obligated

to consider it. The question is what weight do I give it. In this instance I am giving

it weight on reconsideration, but little weight. Little weight because I do believe

still it is factored into the Second Degree charge, but also because of the facts of

the case.

The Court recognizes that [Michael] had made verbal threats that night to

[defendant]. *** And the Court does consider the fact that threats were made by

someone who had committed acts of domestic violence *** in the past. The Court

also recognizes, though, at that time they were I say just verbal threats, but there

was no physical acts of violence or aggression by [Michael] and he had no weapon.

The Court still stands by its finding that it is the defendant who got the

loaded gun. So [defendant] and [Michael] both knew there was a loaded gun in the

house and it was [defendant] who went to get the loaded gun and not [Michael].

The facts show that it was only after [defendant] got the loaded gun that

[Michael] approached [defendant] aggressively towards him. It is also evidence that

[defendant] had been intoxicated earlier in the day. And although he had stopped

drinking, [Lewis] said the defendant still was not thinking straight because of the

alcohol.

So, the Court does consider those facts as to strong provocation *** and

substantial grounds ***. Gives them weight, but it is tempered based upon the facts

that I just outlined.”

-4- ¶ 12 The trial court partially granted the motion to reconsider and reduced defendant’s

sentence to eight years’ imprisonment.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant contends that, although the trial court granted his motion for

reconsideration and considered strong provocation and substantial grounds to excuse or justify his

conduct as factors in mitigation, it erred in giving the factors little weight based on its belief they

were inherent in the offense. Defendant particularly takes issue with the court’s weight given to

the factor of strong provocation, arguing the court wrongly gave it little weight based on it being

factored into the crime of second degree murder when he pleaded guilty based on a belief

circumstances existed to justify or exonerate the killing instead of acting under a serious

provocation.

¶ 16 A trial court’s sentence is “ ‘entitled to great deference’ ” and will not be reversed

absent an abuse of discretion. People v. Cunningham, 2018 IL App (4th) 150395, ¶ 48 (quoting

People v. McGuire, 2017 IL App (4th) 150695, ¶ 38). “ ‘A sentence within the statutory range will

not be deemed excessive, and will not be disturbed, unless it is greatly at variance with the spirit

and purpose of the law or manifestly disproportionate to the nature of the offense.’ ” Id. (quoting

People v. Harris, 2015 IL App (4th) 140696, ¶ 55). Second degree murder is a Class 1 felony (720

ILCS 5/9-2(d) (West 2020)) with a sentencing range of 4 to 20 years’ incarceration (730 ILCS 5/5-

4.5-30(a) (West 2020)).

¶ 17 “A trial court has wide latitude in sentencing a defendant, so long as it neither

ignores relevant mitigating factors nor considers improper factors in aggravation.” People v.

Roberts, 338 Ill. App. 3d 245, 251 (2003). The weight attributed to sentencing factors depends on

-5- the circumstances of a given case. Id. We will not overturn a trial court’s sentencing decision

because we would have weighed the factors differently. People v. Pippen, 324 Ill. App. 3d 649,

653 (2001).

¶ 18 A person commits the offense of second degree murder when he or she commits

the offense of first degree murder and either of the following mitigating factors are present:

“(1) at the time of the killing he or she is acting under a sudden and intense

passion resulting from serious provocation by the individual killed or another

whom the offender endeavors to kill, but he or she negligently or accidentally

causes the death of the individual killed; or

(2) at the time of the killing he or she believes the circumstances to be such

that, if they existed, would justify or exonerate the killing under the principles stated

in Article 7 of this Code, but his or her belief is unreasonable.” 720 ILCS 5/9-

2(a)(1)-(2) (West 2020).

Defendant pleaded guilty under section 9-2(a)(2), pertaining to a belief circumstances existed to

justify or exonerate the killing.

¶ 19 Section 5-5-3.1 of the Unified Code of Corrections (730 ILCS 5/5-5-3.1 (West

2020)) sets forth the mitigating factors a trial court is to consider in imposing a sentence, including

that the defendant acted under a strong provocation (id. § 5-5-3.1(a)(3)) or that there were

substantial grounds tending to excuse or justify his or her conduct (id. § 5-5-3.1(a)(4)). Also

mitigating is that the defendant’s criminal conduct was induced or facilitated by someone else. Id.

§ 5-5-3.1(a)(5). However, defendant does not challenge the court’s determination that the latter

factor did not apply and focuses primarily on the factor of strong provocation.

¶ 20 The term “strong provocation” as a mitigating factor at sentencing has been held to

-6- encompass a wider range of conduct than “serious provocation” under the second degree murder

statute. People v. Merritte, 242 Ill. App. 3d 485, 492 (1993); People v. Jackson, 2022 IL App (2d)

210186-U, ¶ 123. “However, the strong provocation must be direct and immediate.” People v.

Powell, 2013 IL App (1st) 111654, ¶ 36; Jackson, 2022 IL App (2d) 210186-U, ¶ 123. “Mere

words, no matter how abusive or indecent, are not considered serious provocation.” Merritte, 242

Ill. App. 3d at 492.

¶ 21 Meanwhile, the Appellate Court, Third District, has held that strong provocation is

inherent in the offense of second degree murder. People v. Garibay, 366 Ill. App. 3d 1103, 1109-

10 (2006). “Just as a factor implicit in the offense should not be used in aggravation (see, e.g.,

People v. Malin, 359 Ill. App. 3d 257, 264 (2005)), it should likewise not be used in mitigation.”

Garibay, 366 Ill. App. 3d at 1110. “Although the General Assembly fixes the range of sentences

for a particular offense, sentencing in Illinois is still individualized, and the trial court must base

its decision on the particular facts and circumstances of the case.” Id. “Consideration of

circumstances that are necessarily present in every instance of a particular offense—whether

aggravating or mitigating—would undermine individualized sentencing and would tend to skew

sentencing decisions systematically toward one end or the other of the range established by the

General Assembly.” Id. Thus, the mere fact that a defendant acts under a strong provocation should

be entitled to little or no weight because it does not differentiate him or her from any other

defendant convicted of second degree murder under section 9-2(a)(2) of the Criminal Code of 2012

(720 ILCS 5/9-2(a)(2) (West 2020)). Id.

¶ 22 Accordingly, the trial court ultimately is not bound to apply a statutory mitigating

factor that is inherent in the offense. It is well settled that sentencing is within the province of the

trial court. People v. Lefler, 2016 IL App (3d) 140293, ¶ 31. “[I]t is equally well settled that the

-7- weight to be assigned to factors in aggravation and mitigation and the balance between those

factors are matters within the sentencing court’s discretion.” Id. Thus, the trial court, when bound

to apply a mitigating factor, then would, nevertheless, have the discretion to give that factor

de minimis effect. Id.

¶ 23 Here, defendant does not argue the trial court failed to consider the relevant factors

in mitigation. Instead, he takes issue with the court’s weighing of the factors, particularly strong

provocation, due to the factor being implicated by the offense of second degree murder. We find

the court did not abuse its discretion in how it weighed the factors.

¶ 24 First, to the extent the trial court gave little weight to whether defendant believed

there were substantial grounds tending to excuse or justify the killing, as it is inherent in the offense

to which defendant pleaded guilty, the court was not required to consider it. Nevertheless, the court

stated it did so but appropriately gave it little weight.

¶ 25 As to strong provocation, we disagree with defendant that the trial court adjusted

the weight it gave to that factor, based on it being an alternate manner of reducing first degree

murder to second degree murder, when defendant did not plead guilty to an allegation involving

provocation. When the court commented on giving little weight to a factor inherent in the offense,

it referred to the allegation defendant believed the circumstances to be such that, if they existed,

would tend to justify or exonerate the killing, the allegation to which defendant pleaded guilty.

The court then stated it found that this was a statutory mitigating factor. The court next stated it

was giving that factor little weight, both because it was factored into the second degree murder

charge and because of the facts of the case. The court did not specifically mention strong

provocation at that time.

¶ 26 The trial court then discussed the facts of the case and addressed facts pertaining to

-8- provocation, specifically stating it considered and gave weight to those facts as they related to

strong provocation, but the weight of both factors was tempered based upon the facts the court

outlined. Thus, the court explicitly noted that the factor of substantial grounds tending to excuse

or justify the killing was “factored into” the offense, then weighed both that factor and strong

provocation in light of the facts of the altercation and lessened the weight accordingly. We do not

read the court’s comments as giving strong provocation less weight because it was a factor inherent

in second degree murder when defendant did not plead guilty based on strong provocation.

¶ 27 Further, the trial court reduced defendant’s 10-year sentence by 2 years, thus taking

20% off the sentence—a reduction that does not suggest that these factors were given “little

weight.” In any event, once the court properly determined the mitigating factor applied, it had

discretion to give it de minimis weight. See id. Here, based on the facts of the altercation, under

which defendant was the person who retrieved the loaded gun to use as a scare tactic, the court

giving limited weight to strong provocation was appropriate. Thus, even if we were to accept

defendant’s argument that the court improperly considered the factor as being inherent in the

offense, it did not abuse its discretion in lessening the weight given to it based on the facts of the

case.

¶ 28 Ultimately, the record establishes that the trial court properly considered and

weighed the appropriate aggravating and mitigating factors. The court’s sentence was within the

sentencing range and was not an abuse of discretion.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we affirm the trial court’s judgment.

¶ 31 Affirmed.

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