NOTICE: This order was filed under Illinois Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2025 IL App (3d) 240175-U
Order filed April 4, 2025 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) Grundy County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-24-0175 v. ) Circuit No. 21-CF-248 ) DEMARCUS T. DENWIDDIE, ) Honorable ) Sheldon R. Sobol, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court. Presiding Justice Brennan and Justice Bertani concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: (1) The defendant invited any error in the jury instructions. (2) The court did not err when imposing the defendant’s sentence.
¶2 The defendant, Demarcus T. Denwiddie, appeals his conviction for attempted first degree
murder. The defendant argues the Grundy County circuit court committed plain error when it
improperly (1) instructed the jury regarding the specific mental state the State was required to
prove him guilty beyond a reasonable doubt and (2) sentenced the defendant by failing to consider
his youth and mental health and considering a factor inherent in the offense. Alternatively, the defendant contends that counsel was ineffective for failing to preserve the sentencing issues for
review.
¶3 I. BACKGROUND
¶4 The State charged the defendant by indictment with six counts of attempted first degree
murder (720 ILCS 5/8-4(a), 9-1(a)(2) (West 2020)), three counts of aggravated battery (id. § 12-
3.05(e)(2)), and aggravated discharge of a firearm (id. § 24-1.2(a)(3)). The matter proceeded to a
jury trial.
¶5 The evidence adduced at trial showed that while conducting a routine patrol in a marked
squad car, Deputy Tyler Post observed the defendant’s vehicle traveling at a high rate of speed and
passing approximately five vehicles at one time in an “unsafe and reckless manner.” Post pulled
behind the vehicle and activated his emergency lights. The defendant stopped on the shoulder. As
Post approached the vehicle, the defendant accelerated away from the traffic stop. Post followed
the defendant in a high-speed chase using his lights and sirens for approximately 4½ miles.
Eventually, the defendant abruptly turned at an intersection, and Post, unable to stop, collided with
the defendant’s vehicle. At that point, the defendant fled on foot. Post followed and ordered the
defendant to stop twice. Soon after, Post tackled the defendant to the ground. Post observed that
the defendant had a firearm and he heard several gunshots. The gunshots resulted in two injuries
underneath Post’s bulletproof vest and a gunshot wound to his forearm. After shooting Post, the
defendant continued to flee. The defendant was eventually arrested.
¶6 During the jury instruction conference, counsel agreed that each attempted first degree
murder related jury instruction should be “given as modified,” to exclude the bracketed
information. As a result, each attempted first degree murder instruction included the definition
that,
2 “[a] person commits the offense of attempt first degree murder of a peace
officer when he with the intent to kill an individual, does any act which constitutes
a substantial step toward the killing of an individual who was a peace officer who
at the time was in the course of performing his official duties and the defendant
knew or should have known that individual was a peace officer ***. The killing
attempted need not have been accomplished.”
The jury found the defendant guilty of all charges, which merged into a single count of attempted
first degree murder.
¶7 The defendant filed a pro se “motion for Krankel hearing” alleging claims of ineffective
assistance of counsel including, inter alia, that the attempted first degree murder “instructions were
improper for which [counsel] failed to include the ‘without legal justification’ phrase” and
“counsel was ineffective for not raising an affirmative defense of justification.” During the Krankel
inquiry, counsel addressed the defendant’s claim and explained that he had not asked for the
language “without lawful justification” because “the comment on that instruction has without
lawful justification in brackets and then the comments [say] you can only *** add that to the
instruction if there was an affirmative defense. There was no affirmative defense that was raised,
and therefore, I didn’t think we can have that in there ***.” The court denied the defendant’s
motion.
¶8 The defendant filed a pro se “motion for new trial.” Later, counsel filed an amended motion
for a new trial, and the defendant’s pro se motion was withdrawn. Counsel’s amended motion
alleged that the language “without lawful justification” should have been included in the attempted
first degree murder jury instructions. The court denied the motion. The matter proceeded to
sentencing.
3 ¶9 The defendant’s presentence investigation (PSI) showed that the defendant was 18 years
old at the time of the offense. The defendant reported that he suffered from posttraumatic stress
disorder and bipolar depression and had consumed ecstasy that day. The defendant began using
drugs at the age of 10 and drinking alcohol at 13 years old. The defendant continued using drugs
and alcohol, often daily, until his arrest for the instant offense.
¶ 10 At the sentencing hearing, psychologist Anna Stapleton testified that she conducted an
evaluation “regarding the Miller Factors in association with the new neuroscience and behavioral
science that indicates late adolescents have similar brain function and structure to their younger
counterparts.” Stapleton explained that the defendant’s mother had him as a teenager and he was
raised by her and another family member, having no relationship with his father. The defendant
grew up in “poverty” in “crime ridden” and “highly gang infested” areas, which affected his ability
to attend school. The defendant experienced childhood trauma, including physical abuse and
alcoholism, and sought mentorship from older gang members. Stapleton believed that the
defendant’s below average IQ was likely due to his truancy issues and failure to complete high
school. The defendant did not have any mental issues that “could impact his ability to think clearly
and his ability to function.” Stapleton diagnosed the defendant with bipolar disorder, posttraumatic
stress disorder, and antisocial personality disorder. On the date of the offense, Stapleton said that
the defendant “behav[ed] in a way that was impulsive, reckless, consistent with that of an
adolescent.” The defendant was “very angry” about the outcome of the trial and engaged in
“magical thinking,” a characteristic of adolescents. Additionally, the defendant had a history of
violating rehabilitative interventions, including probation, electronic monitoring, court
supervision, and community service. However, in the several months preceding the sentencing
4 hearing, the defendant’s attitude had changed, and Stapleton believed there was “some promise”
for his rehabilitation.
¶ 11 Following the evidence in aggravation and mitigation, the court stated, “I read the [PSI]
***. I considered the financial impact of incarceration. *** And certainly considered the nature
and circumstances of the offense, the attempt[ed] murder of a police officer. With that, the
legislature requires a significant period of incarceration.” The court specifically considered
Stapleton’s report and testimony. Regarding any mitigating justification, the court said, “[n]othing
that I could think of would establish grounds to excuse or justify shooting at a police officer under
these circumstances. So I find that inapplicable.” In commenting on Stapleton’s testimony and
whether the defendant suffered from a “serious mental illness” at the time of the offense, the court
stated, “I don’t believe that anyone believes that it’s okay to shoot at a cop. But the problems with
the defendant’s thought process, I think, are very well explained by Dr. Stapleton’s analysis.” The
court acknowledged that the defendant had been abused in his youth and stated, “the circumstances
on which the defendant was raised are so disappointing. He had no structure, no supervision, no
accountability, and gang members appear to be his only role models.” The court noted that “[f]rom
the time of 12 on, [the defendant] was almost all the time in contact with the criminal justice system
in some form or fashion” until the present offense when “[h]e attempt[ed] to take a life of a police
officer.” The court concluded that “this type of conduct is not accepted, and a significant sentence
is necessary to deter others from believing that they can engage in this type of conduct. A lesser
sentence would deprecate the seriousness of the offense of attempting to shoot a police officer.”
Later, the court said, “[a] significant sentence of incarceration is required to send a message you
don’t attempt to kill a cop.” The court considered Stapleton’s testimony regarding “the defendant’s
age and upbringing on his decision-making process” and stated, “I can assure you that were the
5 defendant older, *** his sentence would be higher than that *** I’m going to impose.” The court
sentenced the defendant to 55 years’ imprisonment. The defendant did not file a motion to
reconsider his sentence. The defendant appealed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, the defendant argues the court committed plain error when it improperly
(1) instructed the jury regarding the specific mental state the State was required to prove him guilty
beyond a reasonable doubt and (2) sentenced him by failing to consider his youth and mental health
and considering a factor inherent in the offense . Alternatively, the defendant contends that counsel
was ineffective for failing to preserve the sentencing issues for review.
¶ 14 A. Jury Instruction Error
¶ 15 At the outset, we note that the State argues the defendant is barred from raising his improper
jury instruction claim under the doctrine of invited error. Specifically, the State contends that
defense counsel agreed to omit the language “without lawful justification” from the jury
instructions because the defendant did not raise an affirmative defense. In his reply brief, the
defendant asserts for the first time that defense counsel was ineffective for failing to properly
preserve the sentencing issue.
¶ 16 Under the doctrine of invited error, a defendant may not request to proceed in one manner
at trial and then on appeal contend that the requested course of action was in error. People v.
Denson, 2014 IL 116231, ¶ 17. “The purpose of the invited error doctrine is to prevent a defendant
from unfairly receiving a second trial based on an error which he injected into the proceedings.”
People v. Smith, 406 Ill. App. 3d 879, 886-87 (2010). To allow a defendant to procure, invite, or
acquiesce in a ruling by the circuit court, even if it is improper, and then contest that same ruling
6 on appeal would offend the notions of fair play and encourage duplicity by litigants. People v.
Ciborowski, 2016 IL App (1st) 143352, ¶ 99.
¶ 17 Here, the record shows that defense counsel acquiesced to the omission of the language
“without lawful justification” from the jury instructions. Later, counsel explained that the facts of
this case did not support the use of this language where the defendant did not raise an affirmative
defense. The defendant cannot now claim an error given his choice to proceed in a particular
manner. To find otherwise would encourage “objecting to that in which he has acquiesced,”
“unnecessary reviews and reversals,” and “the possibility of unlimited litigation.” (Internal
quotation marks omitted.) People v. Harrawood, 66 Ill. App. 3d 163, 166-67 (1978). We note that
plain error review is also forfeited where the defendant invites the error. People v. Harding, 2012
IL App (2d) 101011, ¶ 17.
¶ 18 While invited error does not preclude a defendant from raising a claim of counsel’s neglect
on the same issue (People v. Villarreal, 198 Ill. 2d 209, 228 (2001)), the defendant raised his
ineffective assistance of counsel claim for the first time in his reply brief.
“Under the rules of this court and its long-settled practice, questions not raised by
appellants in the original brief cannot be raised in the reply brief. A contrary
practice would permit appellants to argue questions in their reply briefs as to which
counsel for appellees would have no opportunity to reply. Th[ese] question[s]
therefore need not be considered.” Holliday v. Shepherd, 269 Ill. 429, 436 (1915).
See People v. Lindsey, 72 Ill. App. 3d 764, 776 (1979). As the defendant raised the issue of
ineffective assistance of counsel for the first time in his reply brief, he has forfeited it. See Ill. S.
Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited and shall not be raised in the
reply brief, in oral argument, or on petition for rehearing.”).
7 ¶ 19 B. Sentencing Error
¶ 20 The defendant further argues that the court erred in sentencing him where it did not
consider his youth and mental health and considered a factor inherent in the offense. The defendant
concedes that he forfeited his sentencing contentions but asks that we consider the issue under the
plain error doctrine or consider defense counsel’s ineffectiveness for failing to raise the issue in a
postsentencing motion. Under either theory, we first must consider whether an error occurred as
“[a]bsent a clear or obvious error ***, neither the doctrine of plain error nor a theory of ineffective
assistance affords any relief from the forfeiture.” People v. Jones, 2020 IL App (4th) 190909,
¶ 179.
¶ 21 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 circuit court has wide latitude in sentencing a
defendant to any term prescribed by statute, “[a]s long as the court does not consider incompetent
evidence, improper aggravating factors, or ignore pertinent mitigating factors.” People v.
Hernandez, 204 Ill. App. 3d 732, 740 (1990). Relevant sentencing considerations include the
nature of the crime, the public’s protection, deterrence, punishment, and the defendant’s
rehabilitative potential. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). The weight that the court
should attribute to any factors in aggravation and mitigation depends on the particular
circumstances of the case. Id. We review the circuit court’s sentencing determination for an abuse
of discretion. People v. Stacey, 193 Ill. 2d 203, 209 (2000). We will find an abuse of discretion
“only where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable
person would take the view adopted by the trial court.” People v. Hall, 195 Ill. 2d 1, 20 (2000).
8 We will not disturb a sentence within the applicable sentencing range unless the circuit court
abused its discretion. Stacey, 193 Ill. 2d at 209-10
¶ 22 “Generally, a factor implicit in the offense for which the defendant has been convicted
cannot be used as an aggravating factor in sentencing for that offense.” People v. Phelps, 211 Ill.
2d 1, 11 (2004). However, sentencing courts are not obligated to avoid any mention of such factors
as if they do not exist. People v. O’Toole, 226 Ill. App. 3d 974, 992 (1992). Determination of the
appropriate penalty to be imposed must be based on the circumstances specific to each individual
case, “including the nature and extent of each element of the offense as committed by the
defendant.” (Internal quotation marks omitted.) People v. Hunter, 101 Ill. App. 3d 692, 694 (1981).
“In determining whether the trial court based the sentence on proper aggravating and mitigating
factors, a court of review should consider the record as a whole, rather than focusing on a few
words or statements by the trial court.” People v. Larson, 2022 IL App (3d) 190482, ¶ 29.
¶ 23 Initially, we note that the parties agreed that the statutory sentencing range for the
defendant’s Class X felony of attempted first degree murder was 20 to 80 years’ imprisonment.
720 ILCS 5/8-4(a), (c)(1)(A), (D), 9-1(a)(2) (West 2020) (when a defendant is convicted of
attempted first degree murder of a police officer, the sentencing range is 20 to 80 years’
imprisonment and “25 years or up to a term of natural life shall be added to the term of
imprisonment imposed” if defendant personally discharged a firearm that resulted in great bodily
harm). The defendant’s 55-year sentence is well within the statutory range. Therefore, the sentence
is presumptively valid, and the defendant bears the burden of rebutting this presumption. People
v. Busse, 2016 IL App (1st) 142941, ¶¶ 22, 27.
¶ 24 The defendant’s argument amounts to an invitation to reweigh the evidence, which we will
not do. See People v. Coleman, 166 Ill. 2d 247, 261-62 (1995). In the present case, the record
9 establishes that the court properly weighed the factors in aggravation and mitigation. The court
considered the defendant’s PSI and heard extensive testimony regarding the defendant’s youth and
mental health and what effects those facts may have had on the defendant’s decision-making
capabilities and impulsivity at the time of the offense. The court specifically considered the
defendant’s age when it stated that, but for his young age, it would have given the defendant a
longer sentence, which included the possibility of natural life imprisonment. Moreover, the court
discussed the defendant’s upbringing and “decision-making process” in mitigation when it
imposed a lesser sentence. Ultimately, the court determined that these two mitigating factors did
not significantly depreciate the seriousness of the offense or warrant the imposition of a minimum
sentence. The seriousness of the offense is the most important factor when sentencing. People v.
Murray, 2020 IL App (3d) 180759, ¶ 30. “The trial court need not give greater weight to any
potential for rehabilitation than to the seriousness of the offense.” Id. ¶ 33. Though the defendant
may believe the mitigating evidence should have been given more weight and warranted a lesser
sentence, the court was not required to agree.
¶ 25 Further, we reject the defendant’s contention that the court improperly relied on an inherent
element of the offense, in that the victim was a police officer. While a court cannot rely on a factor
inherent in the offense in aggravation at sentencing, the court is not required to avoid any mention
of the nature of the offense. Phelps, 211 Ill. 2d at 11; O’Toole, 226 Ill. App. 3d at 992. Initially,
the court mentioned the victim’s status in passing as it explained the nature of the offense and the
interest of deterrence of similar crimes. See People v. Cook, 2021 IL App (3d) 190243, ¶ 49. Later,
the court considered the mitigating factors of the defendant’s mental health diagnosis and
justification for the offense and acknowledged the victim’s status as a police officer. In the context
of the court’s discussion, the reference of that element of the offense lent to the court’s belief that
10 the factor in mitigation was inapplicable, where the defendant’s belief would not be justified, and
his mental health did not mitigate the sentence to be imposed. Importantly, nothing in the record
indicates that the court imposed a more severe sentence based on the victim’s status as a police
officer or that it would have given the defendant a more favorable sentence if the victim was not a
police officer. See id. ¶ 48. As a whole, the record demonstrates that the court properly considered
the evidence in aggravation and mitigation, in conjunction with the circumstances of the offense
and the evidence presented at trial and the sentencing hearing. See Larson, 2022 IL App (3d)
190482, ¶ 29. Therefore, we find that the court’s passing comments did not establish that it
improperly considered an inherent factor. See People v. Reed, 376 Ill. App. 3d 121, 128 (2007).
Accordingly, the court did not abuse its discretion by imposing the defendant’s 55-year sentence.
As we found that the court committed no error in sentencing the defendant, we find that the
defendant is unable to establish plain error or ineffective assistance of counsel. See Jones, 2020 IL
App (4th) 190909, ¶ 179.
¶ 26 III. CONCLUSION
¶ 27 The judgment of the circuit court of Grundy County is affirmed.
¶ 28 Affirmed.