People v. Jones

2020 IL App (1st) 163430-U

Opinion

2020 IL App (1st) 163430-U No. 1-16-3430 Order filed November 25, 2020 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 11 CR 15376 ) TIMOTHY JONES, ) Honorable ) Nicholas R. Ford, Defendant-Appellant. ) Judge Presiding.

JUSTICE BURKE delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the circuit court over defendant’s contentions that the State failed to prove him guilty beyond a reasonable doubt, that the court erred in denying his motion for a new trial based on the deficient performance of his trial counsel, that his sentence violates the proportionate penalties clause of the Illinois Constitution, and that his sentence is excessive.

¶2 Following a jury trial, defendant Timothy Jones was found guilty of the first degree murder

of Charinez Jefferson (Charinez) and that defendant personally discharged a firearm in the

commission of that offense, which proximately caused death. The jury further found defendant No. 1-16-3430

guilty of aggravated discharge of a firearm. At a subsequent sentencing hearing, the trial court

sentenced defendant to a term of 55 years’ imprisonment on the first degree murder count, with a

mandatory, consecutive 25-year term for personally discharging a firearm that proximately caused

death, and a consecutive 10-year term for aggravated discharge of a firearm, for a total aggregate

term of imprisonment of 90 years. On appeal, defendant raises four primary contentions. First,

defendant contends that the State failed to prove him guilty beyond a reasonable doubt where the

evidence the State presented of the identity of the shooter was unreliable and inconsistent. Second,

defendant contends that the trial court erred in denying his motion for a new trial based on the

ineffective assistance of his trial counsel where trial counsel failed to investigate and present his

alibi defense. Third, defendant asserts that his 90-year sentence violates the proportionate penalties

clause of the Illinois Constitution because the trial court failed to consider his youth and its

attendant characteristics in accordance with the United States Supreme Court’s ruling in Miller v.

Alabama, 567 U.S. 460 (2012) in determining his sentence. Finally, he alternatively claims that

his sentence is excessive because the court failed to consider the mitigating factors presented,

including his youth, his learning disability, and his rehabilitative potential.

¶3 I. BACKGROUND

¶4 The circumstances surrounding Charinez’s murder on August 16, 2011, are not in dispute.

The only point of contention on the undisputed facts is the identity of the shooter. The record

shows that around 1 a.m. on August 16, 2011, defendant was shot in the thigh near West 62nd

Street and South Western Avenue. He was treated at the hospital and released a few hours later

around 3 a.m. Later that day, at 10:30 p.m. Charinez and Jeremy Martin (Jeremy) were walking

south on Whipple Street when a person ran across the street firing a gun at them. Jeremy turned

and ran as the gunman approached, but Charinez did not move. The gunman fired twice in Jeremy’s

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direction and then turned to Charinez and shot her. The assailant then stood over Charinez and

shot her five to seven more times. Shirley Vantrease (Shirley) testified that she was sitting in front

of a building with some friends on the corner of 64th Street and Whipple Street when she saw

Charinez and Jeremy walking south on Whipple Street. Shirley testified that while Charinez and

Jeremy were walking toward Charinez’s house, “a boy came up and started shooting” at them.

Shirley testified that the “boy” was not wearing a shirt, but was wearing “a little low hat and short

capri’s [sic].” Shirley could see the gun in the boy’s hand, but she could not see his face.

¶5 Romell Vantrease (Romell), Shirley’s brother, testified that he was currently being held in

custody in the Cook County Jail because he did not want to appear as a witness in this case. Romell

testified that on the night of the incident he had been drinking at his mother’s house and had

“maybe three or four beers and like two shots of vodka.” He acknowledged, however, that he told

a police detective and an assistant State’s attorney (ASA) that he drank only “two beers and one

shot of vodka” that night. Romell testified that he was drunk that night, but he was nonetheless

able to see everything clearly and remember everything clearly. After leaving his mother’s house,

Romell walked down the block to the corner of 64th Street and Whipple Street. There, he saw his

sister, Shirley, sitting with some friends in front of a building. He also saw Charinez and Jeremy

walking down the street about 25 feet away from him. On the corner, Romell saw defendant

wearing “blue jean shorts and a white t-shirt” and a black hat. Defendant was holding a handgun.

¶6 Romell had known defendant since he was a “little kid.” Romell testified that defendant

was in a gang called “Hit Squad,” but he told detectives in August 2011 that defendant was a

member of the “Rockwell G-D” street gang. Romell saw defendant run across the street, shoot at

Jeremy, and then shoot Charinez. Romell testified that after defendant shot Charinez, defendant

ran from the scene into a Kia truck and drove away. Romell walked over to Charinez, saw that she

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was dead and called the police. Police officers arrived on the scene and Romell told Chicago police

Sergeant John Foster that he recognized the shooter as “Little Tim.” Sergeant Foster showed

Romell a series of photographs on the computer in his vehicle and Romell identified defendant in

the photographs as the shooter. A few days later, Romell went the police station where he identified

defendant as the shooter in a photograph array and in a lineup.

¶7 Jeremy testified that he was also currently in custody in the Cook County Jail because he

had moved out of state since the shooting and the court found him to be a material witness in the

case. Jeremy testified that he used to a member of the Rec City street gang when he lived in

Chicago. In 2011, there were problems between Rec City and another gang called Scrapville Boys

or Rockwell Boys. On the night of the shooting, he saw Charinez after he finished playing

basketball and the two of them walked to a nearby “convenient [sic] store.” Afterward, they walked

to a gas station so that Jeremy could buy some “Swishers.” They then started walking south on

Whipple Street toward 64th Street. When they reached the corner, Jeremy saw a “guy with his hat

low, no shirt and brown shorts.” Jeremy could not see his face. Jeremy did not think the guy was

“supposed to be there” because he had never seen him before.

¶8 Jeremy asked him, “who the f*** is that?” but the man did not respond. Instead, he pulled

a gun out of his front pocket and shot at Jeremy twice. Jeremy turned and ran, but did not hear any

gunshots after that. When Jeremy had run almost to the next block, he stopped, turned around, and

saw “Charinez getting gunned down.” The man with the gun was standing over Charinez, calling

her a “b****,” and repeatedly shooting her. The man shot Charinez four or five times while she

was on the ground. Jeremy started to run back toward the man with a gun, but he ran off before

Jeremy could get a look at his face. Jeremy went to tell the father of Charinez’s baby what

happened and then returned to the scene where he spoke to police. Sergeant Foster testified that

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Jeremy told him that he was not comfortable speaking with the police in front of a crowd, but told

him that he knew who the shooter was and gave him his contact information. Jeremy denied telling

Sergeant Foster that he knew the identity of the shooter.

¶9 The State then impeached Jeremy’s testimony that he did not recognize the shooter with

his testimony at the grand jury proceeding, his statements made in a videotaped statement to an

ASA, and his identifications of defendant in a photograph array and in a lineup. Jeremy

acknowledged that the day after the shooting, he went to the police station to speak to the police.

Jeremy told the detectives that he was about 20 feet away from the shooting. He told the detectives

that when he turned around to look at the shooter, he recognized defendant as the person shooting

Charinez. Detectives then showed Jeremy a photograph array and Jeremy signed a picture of

defendant, identifying him as the shooter. The next day, Jeremy returned to the police station

because he was arrested for failing to register as a gun offender. Jeremy talked to an ASA and gave

a videotaped statement. Jeremy told the ASA that when he ran back toward the shooter after he

shot Charinez, the shooter looked up at him and he could see his eyes. When Jeremy saw the

shooters eyes, he knew it was defendant. Jeremy told the ASA that he was “100 percent sure that

it was [defendant] who shot at [him] and shot at Charinez.” A few days later, Jeremy returned to

the police station to view a lineup. At the lineup, he identified defendant as the person who shot

Charinez.

¶ 10 Jeremy further acknowledged that he later testified before a grand jury. In his grand jury

testimony, he identified defendant as the shooter and testified that he knew him because he was a

“fellow rival gang member of mine.” Jeremy also identified defendant in a photograph as the

shooter. Jeremy then identified defendant in court as the person he identified as the shooter in the

videotaped statement, his grand jury testimony, the photograph array, and the lineup. Jeremy

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further testified that he told the ASA that he initially did not talk to the police officers who arrived

on the scene of the shooting because he was scared to talk in front of the other people on the street.

However, he eventually agreed to tell the ASA about defendant shooting Charinez because he

wanted to give Charinez’s mother some closure and because “it was the right thing to do.” Jeremy

testified that was nonetheless scared for his safety because “if someone can kill a pregnant girl. I

know they wouldn’t care about killing my mother or my sisters or my aunts.”

¶ 11 On cross-examination, Jeremy testified that he told a different ASA that the police

threatened to charge him with possession of “bullets” and “weed” and send him to prison for 10

years if he did not speak to them about Charinez’s murder. He testified that he told the ASA in the

videotaped statement that the police did not threaten him because he was “scared they would still

charge me with the gun [sic] if I didn’t cooperate.”

¶ 12 Chicago police detective Anthony Amato testified that he was a gang detective and was

qualified as an expert in the field of gang intelligence. Detective Amato testified that he was

familiar with defendant before the events in this case. Detective Amato and other CPD officers

arrested defendant in the early morning hours of August 20, 2011. Detective Amato noted that

defendant was limping at the time of the arrest because he had been shot a few days earlier. He

testified that Jeremy was part of the Rec City street gang and that defendant was affiliated with the

Rockwell Boys, also known as the Scrapville Boys, and the GDs. He further testified that in 2010

and 2011 Rec City and the Rockwell Boys were “basically at war with each other.”

¶ 13 After the State rested, the court engaged in a colloquy with defendant regarding his right

to testify and his satisfaction with the performance of his trial counsel, Tod Urban. Defendant

voluntarily waived his right to testify. With regard to his counsel’s performance, the court asked:

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“THE COURT: Do you have any additional evidence that Mr. Urban has not

offered that you wish to be offered?

THE DEFENDANT: No.

THE COURT: Obviously you’re satisfied with Mr. Urban’s work on this case; is

that right?

THE DEFENDANT: Yes.”

¶ 14 Ericka Clark (Ericka), defendant’s sister, testified on defendant’s behalf that she went to

the hospital with him on August 16 after he was shot. When they returned home from the hospital,

defendant went into the basement to his bedroom. She saw him later that day and went to get his

pain medication from the pharmacy.

¶ 15 Following closing argument, the jury found defendant guilty of first degree murder, during

which he personally discharged a firearm that proximately caused death, and aggravated discharge

of a firearm. Following the jury’s verdict, defense counsel filed leave to withdraw and defendant

obtained new counsel to represent him. Defendant filed, through his new counsel, a motion for a

new trial and other posttrial relief in which alleged, inter alia, that his trial counsel, Urban, had

provided ineffective assistance in failing to investigate and present an alibi defense. Defendant

asserted that “months before trial” Urban was aware that two of defendant’s sisters, Cynthia Jones

(Cynthia) and Ericka, as well as defendant’s fiancé, Dakota Harris, could testify “to certain

circumstances preceding Defendant’s arrest that would create reasonable doubt sufficient to

exonerate him.” Defendant attached to his motion affidavits from Ericka, Cynthia, and Harris. The

three affidavits contained largely the same information. The women asserted that after defendant

was shot in the early morning hours of August 16, 2011, the three of them drove defendant home

from the hospital. Defendant then did not leave the family home until he was arrested for

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Charinez’s shooting four days later on August 20, 2011. Under the timeline of events presented in

the affidavits, defendant would have been at home during Charinez’s shooting.

¶ 16 At the hearing on defendant’s motion, Urban testified that he discussed the evidence with

defendant during the pendency of the case and they talked about witnesses “on several occasions,”

but that defendant talked about witnesses more with Urban’s associate, Nichole Massarello.

Defendant did not instruct Urban to present any evidence at trial, but did give him and Massarello

names of witnesses. Massarello testified that defendant never directed her to contact any witnesses

about a potential alibi. She testified that she did not ask defendant if he had an alibi because she

would expect that if a defendant had an alibi, he would tell her about it. In this case, she testified

that defendant never told her that he was in his house during the shooting and therefore could not

have shot Charinez.

¶ 17 Urban first learned Ericka and Cynthia were potential witnesses on the date the jury was

selected and he interviewed them on that date. Defendant had never mentioned that Ericka or

Cynthia were potential witnesses in the case prior to jury selection. Prior to that date, Urban had

spoken to Ericka at nearly every court date and she had never mentioned being a potential witness

prior to the jury selection. When defendant told Urban that Ericka was a potential witness, Urban

spoke to her for about 15 minutes and asked her if she had any relevant testimony. He then spoke

to her before trial on the date she testified to prepare her for her testimony. He also spoke to Cynthia

for about 15 minutes and asked her if she had any relevant testimony. Urban testified that in all of

his meetings with defendant, defendant never claimed he had an alibi. Urban testified that when

he spoke to Ericka, she told him that she helped defendant come home from the hospital, he went

downstairs to his bedroom “and she never saw him again and she left *** the house.” Cynthia told

Urban a similar series of events and told him that she did not know where defendant was “between

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bringing him home from the hospital and when the murder was committed.” Massarello similarly

testified that when she spoke to Ericka, Ericka told her about picking defendant up from the

hospital after he was shot, but never gave any information about an alibi for defendant. Neither

Cynthia nor Ericka told Massarello that defendant did not leave the house between August 16 and

August 20 and neither indicated that they had personal knowledge that defendant was in the house

at the time of the shooting. Neither Urban nor Massarello had any knowledge of Harris or her

alleged testimony.

¶ 18 Ericka testified at the hearing that she went with defendant to the hospital after he was shot.

When defendant returned home, he laid down on the couch on the main floor of their home and

stayed there all day. The next day, defendant complained about the pain in his leg and Ericka and

Cynthia went to pick up his pain medication prescription from the pharmacy. She further testified

that she was on the west side of Chicago when defendant was arrested. She testified that she told

Urban that defendant was home from the time he was shot until he was arrested, but she did not

recall whether Urban asked her any follow-up questions when she told him that information.

Cynthia testified similarly to Ericka, adding that she knew that defendant never left the house after

he was shot because she was “keeping an eye on him” to “make sure that he was okay.” She

testified that she never told Massarello about defendant being in the house for four days straight

because Massarello never asked her.

¶ 19 Defendant testified that he directed Urban to talk to Cynthia and Ericka. He also testified

that Urban spoke to Harris one time at the courthouse before coming to visit him in the lockup.

Defendant testified that there were several other people who could verify that he did not leave his

house during that four-day period, but he could not recall the names of every person who was

present. Defendant testified that he was not satisfied with the evidence Urban presented at trial

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despite the fact that he told the court that he was. Defendant testified that he was not satisfied with

Urban’s representation because Urban did not listen to what defendant told him to do.

¶ 20 In ruling on defendant’s motion, the court found that Ericka and Cynthia’s testimony was

“inconsistent” and “illogical.” The court stated that “[t]heir general nature and demeanor during

the course of their testimony would have given any seasoned practitioner more than enough

reluctance to call them as witnesses ***.” Indeed, the court found that calling Ericka and Cynthia

as witnesses would have been a “fatal error” because they were “terrible witnesses.” With regard

to defendant’s testimony, the court found that defendant “ramble[d] incoherently on the witness

stand” and did not even know the names of the potential witnesses who were alleged to have been

with him at his house. The court noted that defendant had very little recollection of what he did

and did not say to Urban during the course of the representation. The court noted that defendant

indicated on the record that he was satisfied with Urban’s performance and the court was “going

to take him at his word on that.” The court concluded that the question was whether the alleged

alibi could ever be a viable defense. The court concluded that it could not because it was “poorly

articulated because of the credibility of the witnesses involved.” The court found that the

allegations therefore did not meet the standard set out in Strickland v. Washington, 466 U.S. 668

(1984) and denied defendant’s motion. This appeal follows.

¶ 21 II. ANALYSIS

¶ 22 On appeal, defendant contends the State failed to prove him guilty beyond a reasonable

doubt where the State’s identification evidence was unreliable and there was no physical evidence

linking defendant to the shooting. Defendant also contends that the court erred in denying his

motion for a new trial based on trial counsel’s ineffectiveness where defendant demonstrated that

counsel was ineffective in failing to investigate and present defendant’s alibi evidence and the

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court improperly assessed the credibility of the witnesses at the hearing. Defendant further asserts

that his 90-year sentence imposed for an offense committed when he was only 18 years old violates

the proportionate penalties clause of the Illinois Constitution. In the alternative, defendant

contends that his sentence is excessive in light of his young age and the other mitigating factors

presented.

¶ 23 A. Sufficiency of the Identification

¶ 24 Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt

because the two eyewitnesses who identified him as the shooter gave inconsistent and unreliable

testimony. Defendant asserts that Jeremy’s testimony is unreliable because he testified at trial that

he could not see the shooter’s face, but was impeached by his prior inconsistent statements in

which he identified defendant as the shooter. Defendant also asserts that Romell’s testimony was

incredible where he had been drinking and his trial testimony was not inconsistent with his grand

jury testimony. Defendant maintains that the State therefore failed to meet its burden of proof

where there was no other evidence linking him to the shooting.

¶ 25 1. Standard of Review

¶ 26 Where a defendant challenges the sufficiency of the evidence to sustain his conviction, the

reviewing court must consider whether, after viewing the evidence in a light most favorable to the

State, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). This standard recognizes

the responsibility of the trier of fact to determine the credibility of the witnesses and the weight to

be given their testimony, to resolve any conflicts and inconsistencies in the evidence, and to draw

reasonable inferences therefrom. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). A reviewing

court must allow all reasonable inferences from the record in favor of the State, and will not

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overturn the decision of the trier of fact unless the evidence is so unreasonable, improbable, or

unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Beauchamp, 241 Ill.

2d 1, 8 (2011); People v. Smith, 185 Ill. 2d 532, 542 (1999). In this case, defendant does not contest

the elements of the charged offense, but instead challenges the sufficiency of the State’s

identification evidence. In particular, defendant challenges the reliability of Jeremy and Romell’s

identification as well as their credibility. We observe that it is well-settled that “[t]he sufficiency

of identification testimony *** is a fact question for the jury, and the testimony of a single

identification witness is sufficient to support a conviction if the witness viewed the accused under

circumstances permitting a positive identification to be made.” People v. Palmer, 125 Ill. App. 3d

703, 709 (1984).

¶ 27 2. Romell’s Identification

¶ 28 We will first discuss the infirmities defendant alleges with regard to Romell’s identification

of defendant as the shooter. Defendant asserts that Romell’s identification is unreliable because he

had been drinking at the time of the shooting, testified inconsistently with his grand jury testimony,

and identified defendant from 25 feet away even though his sister, who was near him, could not

identify defendant from a similar distance. We observe that defendant’s contentions concerning

Romell’s testimony appear to conflate the validity of the identification with the credibility of the

witness.

“Evidence showing either the identification was made under overly suggestive

circumstances or the witness had an inadequate opportunity to view the accused destroys

the validity of an identification. [citations]. This makes the identification vague, doubtful,

or uncertain. Discrepancies or omissions of detail, however, do not destroy the validity of

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an identification; rather, they go to the weight of the testimony and are evaluated by the

trier of fact. [citation].” Id.

¶ 29 In this case, defendant’s contentions concerning Romell’s identification testimony concern

discrepancies in his testimony, not the validity of the identification. Therefore, the inconsistencies

in his testimony were matters for the jury to consider in determining the weight to be afforded to

his testimony. We note that Romell testified that although he had been drinking that night and was

intoxicated, it did not affect his ability to clearly see and recall the events. He also testified that he

recognized defendant because he had known him since he was a “little kid.” Romell consistently

identified defendant as the shooter at the scene on the police computer, as confirmed by Sergeant

Foster, at the police station in a photograph array and in a lineup, at the grand jury proceedings,

and at trial. Although, as defendant points out, Romell’s testimony of the ancillary details, such as

how much he had to drink that night and defendant’s clothing, changed over time, it was for the

jury, as the trier of fact, to assess these variances in making a determination of defendant’s guilt.

People v. Slim, 127 Ill. 2d 302, 308 (1989). In this case, the jury appeared to credit Romell’s

testimony that defendant was the shooter despite the inconsistencies defendant identifies. We do

not find such a determination to be so unreasonable, improbable, or unsatisfactory as to justify a

reasonable doubt of defendant’s guilt. Beauchamp, 241 Ill. 2d at 8.

¶ 30 3. Jeremy’s Identification

¶ 31 We will next address defendant’s contentions concerning Jeremy’s identification. As

defendant points out, Jeremy testified at trial that he was unable to see the shooter’s face and was

thus unable to identify him. The State then confronted Jeremy with his prior testimony from the

grand jury proceedings, his prior videotaped statement to an ASA, and his identification of

defendant as the shooter in a photograph array and in a lineup. Defendant asserts that Jeremy’s

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identification of defendant is therefore unreliable where it was brought out only be impeaching

Jeremy with his prior inconsistent statements. Defendant maintains that where Jeremy directly

contradicted his previous identification of defendant in his trial testimony, the credibility of that

evidence is greatly reduced. Defendant also points out that Jeremy indicated that he was threatened

by police with felony charges if he did not speak to the police about the shooting. Defendant

contends that this further erodes the credibility of his previous identifications of defendant where

those identifications were given under duress.

¶ 32 i. Identification by Prior Inconsistent Statements

¶ 33 Under section 115-10.1 of the Code of Criminal Procedure (Code) (725 ILCS 5/115-10.1

(West 2016)) a witness’s prior inconsistent statements can be considered substantive evidence in

certain circumstances. Defendant does not dispute that Jeremy’s prior inconsistent statements were

properly admitted, but instead asserts that these previous statements were insufficient to sustain

his conviction given the lack of corroborating evidence of his identity and the inherent unreliability

of Jeremy’s prior inconsistent statements given his recantation of the identification evidence at

trial. As discussed, supra, however, Romell’s identification of defendant as the shooter

corroborates Jeremy’s prior inconsistent statements where he unequivocally identified defendant

as the shooter. Nonetheless, it is well settled that even where no corroborative evidence is

presented “a recanted inconsistent statement admitted under section 115-10.1 can support a

conviction.” People v. Armstrong, 2013 IL App (3d) 110388, ¶ 23 (citing People v. Craig, 334 Ill.

App. 3d 426 (2002), People v. Morrow, 303 Ill. App. 3d 671 (1999)). This is because, despite

defendant’s implications to the contrary, there are no “suspect categories” of properly admitted

evidence that require a different standard of appellate review. Craig, 334 Ill. App. 3d at 439 (citing

People v. Curtis, 296 Ill. App. 3d 991, 999 (1998)). “As such, evidence of prior inconsistent

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statements properly admitted, even if later recanted, should be treated no differently” than other

properly admitted trial evidence. Id. Thus, the properly admitted prior inconsistent statements were

competent evidence for the jury to consider and weigh and were not inherently unreliable.

¶ 34 We find the same analysis applies with regards to defendant’s contention that Jeremy’s

prior inconsistent statements were unreliable because they were allegedly made under duress.

Defendant asserts that Jeremy only spoke with the detectives and provided a statement identifying

defendant as the shooter because the police threatened him with felony charges. This court has

recognized, however, that “if a prior statement meets section 115-10.1's test, ‘a finding of

reliability and voluntariness is automatically made. Accordingly, no additional analysis is needed.

*** [I]t is the jury’s decision to assign weight to the statement and to decide if the statement was

indeed voluntary, after hearing the declarant’s inconsistent testimony.’ ” Morrow, 303 Ill. App. 3d

at 677 (quoting People v. Pursley, 284 Ill. App. 3d 597, 609 (1996)). In short, the jury’s verdict

suggests that it determined that Jeremy was telling the truth when he made his prior statements

and was “lying at trial.” Craig, 334 Ill. App. 3d at 440. We find nothing in the record to justify

substituting this court’s judgment for that of the jury on this matter.

¶ 35 The record shows that the day after the shooting, Jeremy told the detectives that he

recognized defendant as the shooter and he went on to pick defendant out of a photograph array

and out of a lineup. He told an ASA in a videotaped statement that he was “100 percent sure” that

defendant was the shooter. The fact that defendant’s statement to the ASA was videotaped allowed

the jury to assess Jeremy’s demeanor and compare it to how he behaved on the stand at trial.

Armstrong, 2013 IL App (3d) 110388, ¶ 27. Again, it is within the province of the jury, as the trier

of fact, to weigh the prior inconsistent statements, weigh Jeremy’s testimony at trial, and determine

which is to be believed. Id. The jury’s verdict suggests that it credited Jeremy’s prior inconsistent

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statements where he identified defendant as the shooter and, for purposes of our review, there is

no basis for this court to substitute its judgment for that of the jury where the verdict was based on

properly admitted evidence. Accordingly, we find that the evidence presented in this case was

sufficient to prove defendant guilty of the charged offenses beyond a reasonable doubt.

¶ 36 Although our analysis on this issue could end here, we find it important to address the

authority defendant cites in support of this contention. First, defendant relies on People v. Reyes,

265 Ill. App. 3d 985 (1993). In Reyes, defendant Andrew Reyes was charged with attempted

murder and aggravated battery for his alleged participation in a group beating. Id. at 986. The State

called two witnesses who were present for the altercation. Id. One of the witnesses, Patricia

Mendoza, testified that she saw Reyes at the scene of the beating, but she did not remember

whether he participated in the beating. Id. The other witness, Rita Mendez, offered similar

testimony. Id. at 986-87. Both witnesses testified that they did not have a good view of the beating

and therefore could not be sure of defendant’s participation. Id. Mendoza acknowledged that when

she testified before the grand jury, she affirmatively stated that she had witnessed Reyes beating

the victim. Id. at 986. She testified at trial, however, that he grand jury testimony was a lie. Id.

Mendez also acknowledged that she testified at the grand jury hearing that she saw defendant

participating in the beating, but she testified at trial that she misunderstood the question at the

grand jury proceeding. Id. at 987. Reyes testified on his own behalf that while he was present when

the beating started, he quickly left the scene and did not participate in the beating. Id. 987-88.

¶ 37 The court found Reyes guilty of the charged offenses and Reyes appealed asserting that the

State failed to prove him guilty beyond a reasonable doubt where the State’s two witnesses

recanted their implicating testimony at trial. Id. at 988. This court agreed with Reyes, finding that

the “only evidence” to contradict Reyes’ assertion that he did not participate in the group beating

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was the grand jury testimony of Mendoza and Mendez. Id. at 989. The court found that the

“credibility of this testimony is greatly reduced by the fact that both witnesses later disavowed

their grand jury statements.” Id. The court also noted that the grand jury statements were not

“detailed accounts” of Reyes’s participation in the beating, but were instead “one word responses

to the prosecutor’s leading question[s] ***.” Id. The court further observed that Mendez asserted

that the police coerced her into identifying the participants in the beating, and that this assertion

was “uncontroverted” at trial. Id. Accordingly, the court held that the State had failed to prove

Reyes guilty beyond a reasonable doubt. Id. at 990.

¶ 38 We find the circumstances in the case at bar are distinguishable from those present in Reyes.

First, unlike the uncorroborated grand jury statements in Reyes, Jeremy’s prior identifications of

defendant are corroborated by the unequivocal and unrecanted testimony of Romell, who

consistently identified defendant as the shooter. As noted, supra, defendant’s attempts to cast

doubt on Romell’s identification testimony are unfounded. Furthermore, Jeremy’s identification

of defendant did not stem solely from his grand jury testimony. Rather, Jeremy consistently

identified defendant as the shooter in a photograph array, in a lineup, and to an ASA in a videotaped

statement. In addition, Jeremy’s grand jury testimony in which he identified defendant as the

shooter was not “one word responses to the prosecutor’s leading question[s].” Instead, at the grand

jury, the prosecutor asked Jeremy:

“Q. How close were you to Charinez and the shooter when you turned around and

saw that?

A. I would say 15 feet.

Q. After he shot her, what happened?

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A. He looked up and at me, and as he turned his head to look at me I looked at him

and he took off right back. The same way he was coming he took off back.

Q. When he turned and looked up at you, were you able to see his face at that point?

A. Yes, ma’am.

***

Q. Did you recognize him?

Q. Who did you see shoot Charinez Jefferson?

A. Timothy Jones.

Q. Who is Timothy Jones[?]

A. A fellow rival gang member of mine.”

Furthermore, when the State confronted Jeremy with this testimony, he did not testify that he lied

at the grand jury proceeding or that he misunderstood the questions. Rather, he acknowledged that

he gave that testimony.

¶ 39 Finally, although Jeremy did testify that he was coerced by police into identifying someone

as the shooter, such evidence was not “uncontroverted” as it was in Reyes. Jeremy told the ASA

who took his videotaped interview that he had not been coerced or threatened into making an

identification, and further testified at the grand jury proceeding that he freely chose to give the

statement to the ASA and that no one forced or threatened him to give the statement. Jeremy was

also asked at the grand jury proceeding how the police treated on the day he made the recorded

statement and Jeremy responded that he was “treated very fairly.” In addition, Sergeant Foster

testified that he did not threaten or coerce Jeremy into making an identification and that Jeremy

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was articulate, cooperative, and very personable when he spoke to him at the police station.

Accordingly, we find the circumstances of this case distinguishable from those in Reyes.

¶ 40 Defendant next relies on People v. Parker, 234 Ill. App. 3d 273 (1992). In Parker, the

defendant, David Parker, was convicted of murder, armed violence, attempted murder, and

aggravated battery. Id. at 273. The only evidence presented against Parker was the prior

inconsistent statements of three State witnesses from three signed witness statements given to

police. Id. at 273-74. One witness testified that he gave a statement inculpating Parker in the

shooting while he was recovering from surgery and was still in the hospital. Id. at 275-76. The

witness testified that he “ ‘did not want to be bothered’ ” and only signed the statement because

he wanted to get the police detective out of his room. Id. at 276. The second witness denied

knowing defendant or being at the scene. Id. at 277. He testified that he only signed the statement

inculpating defendant in the shooting because police officers told him that he would be arrested

for withholding information if he did not sign it. Id. The third witness testified that the statement

given to police was falsified and that the police had beaten him and forced him to sign the

statement. Id. at 278.

¶ 41 In reversing the trial court’s judgment, this court found that the “only evidence that

inculpated defendant was prior inconsistent statements which were directly contradicted by the

alleged declarants at trial ***.” Id. at 280. The court found that the lack of credible eyewitness

testimony, combined with the lack of physical evidence linking defendant to the crime, was

insufficient to sustain Parker’s convictions. Id.

¶ 42 We find the circumstances of Parker distinguishable from the case at bar in several

important respects. First, with regard to corroboration, Romell’s testimony that defendant was the

shooter sufficiently corroborated Jeremy’s prior inconsistent statement to the same. Thus, the

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State’s case was not based solely on the prior inconsistent statements as it was in Parker. In

addition, the three disavowed statements in Parker were each prepared by the police, not by the

witnesses themselves. In this case, Jeremy’s prior inconsistent statements were his own words

from the videotaped statement with the ASA and his grand jury testimony. This court has

recognized that Parker “in no way stands for the proposition that a recanted statement can never

be sufficient evidence to support a defendant’s conviction.” People v. Douglas, 2014 IL App (5th)

120155, ¶ 26. Rather, it merely finds that in the narrow circumstances present in that case, the

credibility of the evidence was greatly reduced where the three witnesses directly contradicted

their prior inconsistent statements. Id. Here we find that Jeremy’s prior inconsistent statements,

which were not impeached to the extent in Parker, combined with Romell’s corroborating

testimony, were sufficient to sustain defendant’s convictions.

¶ 43 Finally, defendant relies on People v. Brown, 303 Ill. App. 3d 949 (1999). Similar, to

Parker, in Brown this court found that the “only evidence” linking defendant to the crime was a

disavowed witness statement. Id. at 965. The court also noted that the statement identifying the

defendant as the shooter was not made until nearly two years after crime occurred. Id. The court

concluded that “[d]ue to the particular circumstances of this case, where [the witness’s] prior

statements were not made contemporaneously with the victim’s shooting and lacked corroborative

evidence, we find that [the witness’s] prior statements, alone, which were later disavowed, were

insufficient to prove defendant guilty beyond a reasonable doubt.” (Emphasis added.) Id.

¶ 44 In this case, as discussed, there is corroborative evidence for Jeremy’s prior statements in

the form of Romell’s testimony identifying defendant as the shooter. In addition, Jeremy’s

statement to an ASA identifying defendant as the shooter and his identification of defendant in the

photograph array and the lineup were made days after the shooting, not nearly two years later as

- 20 - No. 1-16-3430

in Brown. Finally, as the court in Brown noted, its decision was based on the “particular

circumstances” of that case. Because the case bar presents different circumstances, including

corroborating testimony and prior statements with greater indicia of reliability, we find that a

different result is warranted here. Accordingly, we find no basis to disturb the jury’s verdict that

the State proved defendant guilty of the charged offenses beyond a reasonable doubt.

¶ 45 B. Ineffective Assistance

¶ 46 Defendant next contends that the court erred in denying his motion for a new trial based on

the ineffective assistance of his trial counsel. Defendant asserts that Urban and Massarello’s

testimony at the hearing showed that they failed to adequately investigate his alibi defense and

thus the failure to present the defense could not be reasonable trial strategy. Defendant further

contends that by denying his motion based on the credibility of the alibi witnesses, the trial court

usurped the jury’s role. Defendant maintains that it was the responsibility of the jury to weigh

whether Ericka and Cynthia’s testimony about defendants’ alibi was credible and the proper

question for the court was whether the evidence, if presented to the jury, would have changed the

result on retrial.

¶ 47 Claims of ineffective assistance of counsel are reviewed pursuant to the standard set forth

in Strickland v. Washington, 466 U.S. 668 (1984). In order to prove ineffective assistance under

that standard, defendant must show that his counsel’s performance was deficient and that he was

prejudiced by counsel’s deficient performance. People v. Campbell, 2015 IL App (1st) 131196, ¶

38. In this case, the court held an extensive hearing on defendant’s claim of ineffective assistance.

Defendant’s trial counsel and his associate testified at length regarding the witnesses they

investigated and what those witnesses told them. Crucially, both Urban and Massarello testified

that neither Ericka nor Cynthia, nor defendant, ever mentioned an alibi defense. Defendant asserts

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that Massarello acknowledged that she never asked any of the witnesses if they had had an alibi

defense, but Massarello testified that she would not ask witnesses if they had alibi evidence

because witnesses would generally offer such information without being prompted. Defendant’s

assertion that neither Ericka nor Cythnia would offer crucial alibi evidence and that defendant

would not alert his counsel to the possibility of the alibi evidence without specifically being asked

about it defies logic.

¶ 48 As noted, the trial court specifically asked defendant during trial if there was additional

evidence that he wished Urban to present.

“THE COURT: Do you have any additional evidence that Mr. Urban has not

THE COURT: Obviously you’re satisfied with Mr. Urban’s work on this case; is

There is thus no suggestion that defendant or any of the witnesses ever told Urban about the

purported alibi as defendant indicated that he had no other evidence he wanted Urban to present

despite the fact that Urban had not presented any evidence of an alibi. Accordingly, because there

is no evidence that Urban was ever apprised of the purported alibi, he was not ineffective in failing

to investigate and present the defense. People v. English, 403 Ill. App. 3d 121, 138 (2010).

¶ 49 Even if we found that trial counsel was aware of the alibi defense and rendered

unreasonable assistance in failing to present it, we would nonetheless find that defendant failed to

demonstrate that he was prejudiced by the deficient performance. The trial court found that Ericka

and Cynthia’s testimonies were “inconsistent” and “illogical” and it would have been a “fatal

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error” for trial counsel to call them as witnesses. This conclusion is amply supported by the record.

For instance, Ericka testified at the hearing that she knew defendant did not leave the house

between August 16 when he returned home from the hospital and August 20 when he was arrested

because she was there with him the whole time. She later testified, however, that she was not home

when defendant was arrested because she was on the west side of Chicago. In addition, as the trial

court recognized, Ericka testified inconsistently about where defendant stayed in the house when

he returned home from the hospital, testifying at trial that he went into the basement to his

bedroom, but testifying at the hearing on the motion for a new trial that he laid down on the couch

on the main floor. The trial court also found that defendant himself “ramble[d] incoherently on the

witness stand” and did not even know the names of the potential witnesses who were alleged to

have been with him at his house. We thus cannot say that defendant was prejudiced by trial

counsel’s failure to present the purported alibi defense where the witnesses gave illogical,

inconsistent, and incoherent testimony.

¶ 50 Defendant asserts, however, that the trial court erred in assessing the credibility of the

witnesses at the hearing on the motion for the new trial because the jury was the finder of fact in

this case and the credibility of the witnesses should have been left to the jury’s determination.

Defendant’s contention on this matter simply finds no support in Illinois law. It is well-settled that,

even in jury trials, the circuit court is the finder of fact on posttrial motions. See People v. Evans,

54 Ill. App. 3d 883, 886 (1977) (finding that where the question presented is one of credibility of

witnesses who testified at hearing on posttrial motion following a jury trial, it is the function of

trial court to determine witnesses’ credibility); see also, People v. Veal, 58 Ill. App. 3d 938, 989

(1978) (finding that the trial court was in the best position to judge the credibility of the witnesses

who testified at the posttrial hearing following a jury trial because the court could closely observe

- 23 - No. 1-16-3430

the demeanor of the witness at the hearing on the motion and at trial). Under the procedure

defendant proposes, the trial court would have to reconvene the jury to hear testimony from alibi

witnesses any time a defendant presents witnesses at a posttrial hearing. This simply cannot be the

standard. Accordingly, we find that the trial court properly assessed the credibility of the witnesses

at the hearing on the motion for a new trial and did not err in denying defendant’s motion for a

new trial where counsel’s performance was not deficient and did not prejudice the defense.

¶ 51 C. Defendant’s Sentence

¶ 52 1. Proportionate Penalties

¶ 53 Defendant raises two distinct challenges to his sentence. He first contends that his sentence

violates the Proportionate Penalties clause where he was only 18 years old at the time of the offense

and was sentenced to a de facto life sentence. Defendant further asserts that recent developments

in the law, combined with emerging science on brain development, have prompted Illinois courts

to find that de facto life sentences for young adult offenders are unconstitutional. Defendant

contends that we should therefore remand his cause for resentencing.

¶ 54 i. Miller v. Alabama

¶ 55 In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that mandatory life

sentences for juveniles violate the eighth amendment’s prohibition against cruel and unusual

punishment. Miller, 567 U.S. at 489. Miller requires sentencing courts in homicide cases to “take

into account how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id. at 480. The Supreme Court expanded on its decision

in Miller in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016). In Montgomery, the

Court determined that Miller should apply retroactively and that state courts must apply Miller in

collateral proceedings. Id. at ___, 136 S. Ct. at 732. The Court further found that Miller did not

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prohibit all life sentences for juveniles, but reserved life sentences for “the rare juvenile offender

whose crime reflects irreparable corruption.” (Internal quotation marks omitted.) Id. at ___, 136

S. Ct. at 734. Throughout the decision, the court repeatedly stated that the decision in Miller

applied only to juvenile offenders sentenced to “mandatory life without parole.” Id. at ___, 136 S.

Ct. at 726, 732, 733.

¶ 56 In People v. Reyes, 2016 IL 119271, our supreme court expanded the holding of Miller,

finding that Miller applied to so-called “de facto” life sentences for juveniles. The supreme court

found that such sentences violate Miller where the sentence is so long that it amounts to “a

mandatory term of years that is the functional equivalent of life without the possibility of parole

***.” Id. ¶ 9. Recently, in People v. Buffer, 2019 IL 122327, ¶ 40, our supreme court determined

that a prison term of 40 years or more is considered a de facto life sentence. Further, in People v.

Holman, 2017 IL 120655, ¶ 40, the supreme court applied Miller to discretionary life sentences

finding that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants are

disproportionate and violate the eighth amendment, unless the trial court considers youth and its

attendant characteristics.” The Holman court held that “a juvenile defendant may be sentenced to

life imprisonment without parole, but only if the trial court determines that the defendant’s conduct

showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the

possibility of rehabilitation.” Id. ¶ 46.

¶ 57 ii. Young Adults Under Miller

¶ 58 Recently, there has been a trend in the appellate court wherein young adults seek to have

their sentences invalidated on the basis of Miller principles. See, e.g., People v. White, 2020 IL

App (5th) 170345, People v. Suggs, 2020 IL App (2d) 170632, People v. Handy, 2019 IL App

(1st) 170213, People v. House, 2019 IL App (1st) 110580-B, appeal allowed, No. 125124 (Ill. Jan.

- 25 - No. 1-16-3430

29, 2020), People v. LaPointe, 2018 IL App (2d) 160903, People v. Pittman, 2018 IL App (1st)

152030. Defendants in these cases generally raise challenges to their sentences under the eighth

amendment, as expressly provided in Miller, and under the proportionate penalties clause of the

Illinois Constitution. Our supreme court has recognized, however, that eighth amendment “claims

for extending Miller to offenders 18 years of age or older have been repeatedly rejected.” People

v. Harris, 2018 IL 121932, ¶ 61 (collecting authorities). However, whether a young adult defendant

has a cognizable claim under the proportionate penalties clause is less clear. Similar to the eighth

amendment, the proportionate penalties clause provides 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. A challenge under the proportionate penalties

clause “contends that the penalty in question was not determined according to the seriousness of

the offense.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Some decisions of this court have

suggested that the proportionate penalties clause may provide greater Miller-based protections for

young adult offenders than those afforded by the eighth amendment. See LaPointe, 2018 IL App

(2d) 160903, ¶¶ 51-53, (noting inconsistency about whether the eighth amendment and

proportionate penalties clause are co-extensive and should be interpreted in “lockstep”); see also,

House, 2019 IL App (1st) 110580-B, appeal allowed, No. 125124 (Ill. Jan. 29, 2020) (finding a

young adult’s mandatory life sentence violated the proportionate penalties clause). Defendants in

such cases argue, as defendant here, that there is little distinction between juvenile offenders just

under the age of 18 and offenders who are barely older. The defendants also cite to emerging

science regarding brain development suggesting that brain development does not stop in young

adults until their mid-20s.

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¶ 59 The supreme court opened the door for such arguments in People v. Thompson, 2015 IL

118151. In Thompson, the 19-year-old defendant shot and killed his father and a woman who was

inside his father’s house. Id. ¶ 4. After the court found the defendant guilty of two counts of first

degree murder, he was sentenced to a term of natural life imprisonment. Id. ¶ 7. This court affirmed

the defendant’s conviction and sentence on direct appeal. Id. ¶ 8. The defendant filed several

postconviction pleadings, including a petition pursuant to section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2010)) that was the subject of the supreme court’s ruling.

Id. ¶¶ 9-14. In that petition, the defendant raised due process violations and claims of ineffective

assistance of counsel. Id. ¶ 14. On appeal, however, the defendant abandoned those claims and

instead asserted that his mandatory life sentence was unconstitutional pursuant to Miller under

both the eighth amendment and the proportionate penalties clause. Id. ¶¶ 16-17. This court rejected

defendant’s contentions, finding that his as-applied constitutional challenge was not properly

before the court because it was raised for the first time on appeal. Id. ¶ 18.

¶ 60 The supreme court granted the defendant leave to appeal and agreed with the appellate

court’s conclusion that defendant forfeited his as-applied challenge to his sentence under Miller

by raising it for the first time on appeal. Id. ¶ 39. The court noted that the defendant relied on the

“evolving science” of juvenile maturity and brain development, but the defendant failed to

establish how this “evolving science” applied to the circumstances of his case. Id. ¶ 38. The court

noted that the circuit court was the appropriate tribunal for developing the factual record to

adequately address defendant’s claim. Id. The court stated, however, that the defendant was “not

necessarily foreclosed” from raising his constitutional challenge in the circuit court and noted that

the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)) was “expressly designed

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to resolve constitutional issues.” Id. ¶ 44. The court concluded that “we express no opinion on the

merits of any future claim raised by defendant in a new proceeding.” Id. ¶ 44.

¶ 61 The supreme court again addressed a young adult offender’s claim pursuant to Miller in

Harris, 2018 IL 121932. In Harris, the 18-year-old defendant received a 76-year sentence for first

degree murder and aggravated battery with a firearm. Id. ¶ 1. The defendant contended, for the

first time in his direct appeal, that his sentence violated the proportionate penalties clause. Id. ¶ 17.

This court vacated defendant’s sentence finding that ‘[w]hile we do not minimize the seriousness

of [defendant’s] crimes, we believe that it shocks the moral sense of the community to send this

young adult to prison for the remainder of his life, with no chance to rehabilitate himself into a

useful member of society.’ ” Id. ¶ 18 (quoting People v. Harris, 2016 IL App (1st) 141744, ¶ 69,

aff’d in part, rev’d in part, Harris, 2018 IL 121932). On appeal, the supreme court noted that the

defendant was raising an as-applied challenge to his sentence. Harris, 2018 IL 121932, ¶ 37. The

court stated that it was therefore “paramount” that the record be sufficiently developed in terms of

the defendant’s specific facts and circumstances. (Internal quotation marks omitted). Id. ¶ 39. The

court noted that the defendant did not raise his as-applied challenge in the trial court and thus the

trial court did not hold an evidentiary hearing where it could make findings of fact regarding the

defendant’s specific circumstances. Id. ¶ 40.

¶ 62 The court found that because the defendant was 18 years old at the time of the offense,

Miller did not apply directly to his circumstances. Id. ¶ 45. As in Thompson, the supreme court

determined that the record was not sufficiently developed to address the defendant’s claim that

Miller applied to his particular circumstances. Id. ¶ 46. Despite the defendant’s arguments to the

contrary, the supreme court found that the record was not sufficiently developed to address his as-

applied challenge because the record contained “only basic information about defendant, primarily

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from the presentence investigation report.” Id. The court noted that an evidentiary hearing was not

held and the trial court did not make any findings of fact on the “critical facts” needed to determine

whether Miller applied to the defendant as an adult. Id. The court concluded that the defendant’s

as-applied challenge was premature because the record did not contain evidence about how the

evolving science on juvenile maturity and brain development that the Supreme Court cited in

Miller applied to the defendant’s specific facts and circumstances. Id. The court noted, however,

as it did in Thompson, that the defendant was “not necessarily foreclosed” from raising an as-

applied challenge in another proceeding, such as in a petition under the Act. Id. ¶ 48.

¶ 63 Defendant here, like the defendants in Thompson and Harris, raises an as-applied challenge

to his sentence. He maintains that he was only 18 years old at the time of the offense, had a learning

disability, and cites to studies evaluating brain development in young adults. However, these

factors concern only “basic information” about defendant and do not address how evolving brain

science and other Miller factors apply to this specific defendant. As in Harris and Thompson, there

was no evidentiary hearing held in the trial court so that the court could make findings of fact on

the “critical facts” needed to determine whether Miller applies to this defendant as an adult. Rather,

the record contains “only basic information about defendant, primarily from the presentence

investigation report.” Id. ¶ 46. As the supreme court noted in Harris,

“All as-applied constitutional challenges are, by definition, dependent on the

specific facts and circumstances of the person raising the challenge. Therefore, it is

paramount that the record be sufficiently developed in terms of those facts and

circumstances for purposes of appellate review. [Citation.] We have reiterated that a court

is not capable of making an as-applied determination of unconstitutionality when there has

been no evidentiary hearing and no findings of fact. [Citation.] Without an evidentiary

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record, any finding that a statute is unconstitutional as applied is premature.” (Internal

quotation marks omitted.) Harris, 2018 IL 121932, ¶ 39.

As such, the record is not sufficiently developed for us to consider defendant’s as-applied

challenge on appeal. As in Thompson and Harris, the record is simply insufficient to address

defendant’s premature as-applied constitutional challenge to his sentence. See Figueroa, 2020 IL

App (2d) 160650, ¶ 89 (citing People v. Vega, 2018 IL App (1st) 160619, ¶ 57).

¶ 64 2. Excessive Sentence

¶ 65 Finally, defendant contends that his sentence is excessive in light of his youth and its

attendant characteristics and his potential for rehabilitation. Defendant acknowledges that he failed

to challenge his sentence in the trial court, but asserts that counsel’s failure to challenge the

excessiveness of his sentence represents ineffective assistance and the trial court’s failure to

consider his youth is plain error. Defendant asserts that this court should therefore remand his

cause for resentencing.

¶ 66 i. Plain Error

¶ 67 The plain error rule allows a reviewing court to consider unpreserved claims of error

regardless of forfeiture. People v. Thompson, 238 Ill. 2d 598, 613 (2010). Plain error applies when

there is a clear or obvious error and the evidence is so closely balanced that the error would change

the outcome of the case or when there is a clear or obvious error that is so serious that it affected

the fairness of defendant's trial. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first

consideration in addressing defendant's plain error argument is determining whether an error

occurred, which requires a “ ‘ “substantive look” ’ ” at the issue. People v. Hudson, 228 Ill. 2d

181, 191 (2008).

¶ 68 1. Standard of Review

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¶ 69 A reviewing court will not alter a defendant’s sentence absent an abuse of discretion by the

trial court. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A trial court abuses its discretion in

determining a sentence where the sentence is greatly at variance with the spirit and purpose of the

law or if it is manifestly disproportionate to the nature of the offense. Id. The trial court is afforded

such deference because it is in a better position than the reviewing court to weigh the relevant

sentencing factors such as “ ‘defendant’s credibility, demeanor, general moral character, mentality,

social environment, and age.’ ” People v. Stevens, 324 Ill. App. 3d 1084, 1093-94 (2001) (quoting

People v. Streit, 142 Ill. 2d 13, 19 (1991)). In the absence of evidence to the contrary, we presume

that the sentencing court considered all mitigating evidence presented. People v. Gordon, 2016 IL

App (1st) 134004, ¶ 51 (citing People v. Burton, 184 Ill. 2d 1, 34 (1998)).

¶ 70 2. Defendant’s Sentence

¶ 71 Here, defendant was found guilty of first degree murder (720 ILCS 5/9-1(A)(1) (West

2016)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2016)). Defendant

was thus eligible for a term of imprisonment between 20 and 60 years (730 ILCS 5/5-4.5-20(a)(1)

(West 2016)) on the first degree murder count and a term of 4 to 15 years on the aggravated

discharge of a firearm count (730 ILCS 5/5-4.5-30(a) (West 2016)). Because defendant personally

discharged a firearm the proximately caused death, the court was required to add a 25-year firearm

enhancement to his sentence. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2016). The court sentenced

defendant to 55 years’ imprisonment on the first degree murder charge, with a mandatory,

consecutive 25-year term for the firearm enhancement, and a consecutive 10-year term for

aggravated discharge of a firearm, for a total cumulative sentence on 90 years’ imprisonment.

Defendant’s sentence therefore fell within the prescribed statutory range, and, accordingly, we

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grant great deference to the trial court’s determination of that sentence. People v. Brunner, 2012

IL App (4th) 100708, ¶ 40.

¶ 72 Defendant nonetheless contends that the trial court did not adequately consider the

mitigating factors presented and that he was entitled to a lower sentence. The record shows,

however, that during the sentencing hearing, defense counsel identified the same mitigating factors

defendant brings to our attention on appeal, including defendant’s youth, learning disability, and

rehabilitative potential. It is not our function to independently reweigh these factors and substitute

our judgment for that of the trial court. Alexander, 239 Ill. 2d at 214-15. Although the trial court

did not specifically identify which factors it considered in determining defendant’s sentence, we

observe that a trial court is not required to specify on the record the reasons for the sentence

imposed (People v. Sauseda, 2016 IL App (1st) 140134, ¶ 22) nor is it required to recite and assign

value to each factor presented at the sentencing hearing (People v. Baker, 241 Ill. App. 3d 495,

499 (1993)). Rather, it is presumed that the trial court properly considered all mitigating factors

and rehabilitative potential before it, and the burden is on defendant to affirmatively show the

contrary. People v. Brazziel, 406 Ill. App. 3d 412, 434 (2010). Defendant here has failed to do so.

¶ 73 Further, although defendant presented mitigating factors, we note that the court is not

required to give greater weight to mitigating factors than to the seriousness of the offense, nor does

the presence of mitigating factors either require a minimum sentence or preclude a maximum

sentence. People v. Harmon, 2015 IL App (1st) 122345, ¶ 123 (citing Alexander, 239 Ill. 2d at

214). Here, there can be no question that the seriousness of the offense weighed heavily in the trial

court’s sentencing decision. The record shows that defendant stood over Charinez and shot her at

while Charinez begged defendant to not shoot her because she was pregnant. The postmortem

examination, which was entered into evidence by stipulation, stated that Charinez had eight bullet

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wounds. An evidence technician testified that she recovered seven expended shells and one fired

bullet from the scene. The evidence presented at trial suggested that defendant shooting at Jeremy

was gang-related retaliation for defendant’s own shooting earlier that day, but defendant likely

knew that Charinez, a pregnant woman, was not a rival gang member and was not a threat to him.

He nonetheless shot her repeatedly from point blank range while calling her a “b****.” The State

presented evidence that Charinez’s baby survived the shooting, but suffered innumerable health

complications, was entirely reliant on others to survive, and had a poor prognosis. The court found

that defendant’s actions were “horrific” and showed a “complete disregard for human life.” This

court has recognized that “ ‘the seriousness of the offense is considered the most important factor

in determining a sentence.’ ” People v. Murray, 2020 IL App (3d) 180759, ¶ 30 (quoting People

v. Jackson, 2014 IL App (1st) 123258, ¶ 53). Thus, the court properly imposed a 90-year sentence

based on the seriousness of defendant’s offense.

¶ 74 Defendant also points out that the court expressly stated that it had to consider defendant’s

potential for rehabilitation, but nonetheless sentenced him to a de facto life sentence, depriving

him of any opportunity to be rehabilitated. We observe, however, that the rehabilitative potential

of a defendant is only one of the factors that the trial court needs to weigh in deciding a sentence

and does not outweigh any other factor. People v. Flores, 404 Ill. App. 3d 155, 159 (2010). The

trial court also considered defendant’s criminal record, which included crimes he committed as a

juvenile. In 2008, defendant was adjudicated delinquent for possession of a stolen motor vehicle

and unlawful possession of a weapon. In 2009, he was adjudicated delinquent again for burglary.

Further, at the sentencing hearing, the State presented witnesses who related to the court that they

had been victims of armed robberies perpetrated by defendant just one month before the shooting

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in this case. 1 Defendant was also on probation at the time of this shooting and at the time of the

two separate armed robbery offenses. The court was at liberty to consider the evidence presented

of the armed robberies (See People v. Lusby, 2020 IL 124046, ¶¶ 47-48) and the fact that defendant

was on probation (People v. Risley, 359 Ill. App. 3d 318, 920 (2005)) in assessing defendant’s

rehabilitative potential.

¶ 75 Finally, defendant contends that the court failed to adequately consider his youth in

determining his sentence. Defendant points out that in announcing his sentence, the court did not

even mention his age at the time of the offense. We observe, however, that defendant’s age was

noted in the PSI report and defense counsel noted defendant’s age at the time of sentencing in

arguing in mitigation. The court presided over the entire proceeding and was familiar with

defendant having placed him on probation prior to the incident in question. The supreme court has

found that where defendant’s age at the time of the offense is sufficiently before the court, such as

in the PSI report and in the parties’ arguments, we can presume that the trial court considered

defendant’s youth and its attendant characteristics in determining his sentence. See Lusby, 2020

IL 124046, ¶¶ 38-39, 52. Accordingly, we find no abuse of discretion where the sentence imposed

was within the prescribed statutory range, does not greatly vary from the purpose of the law, and

is not manifestly disproportionate to the nature of the offense. Brazziel, 406 Ill. App. 3d at 433-34

(citing People v. Stacey, 193 Ill. 2d 203, 210 (2000)). Because we find no abuse of discretion by

the trial court, we therefore find no plain error. See People v. Coats, 2018 IL 121926, ¶ 32 (absent

an error, there can be no plain error). Because there was no plain error, we need not address

defendant's alternative argument that his counsel was ineffective in failing to challenge his

1 The two armed robbery cases were pending before the same trial court judge as the case at bar. Following the court’s entry of the sentence in this case, the State moved to nolle prose the charges in those cases.

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sentence. See People v. Hensley, 2014 IL App (1st) 120802, ¶ 47 (where there is no plain error,

there can be no ineffective assistance of counsel).

¶ 76 III. CONCLUSION

¶ 77 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 78 Affirmed.

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