People v. McFadden

2021 IL App (2d) 200325-U

Opinion

2021 IL App (2d) 200325-U No. 2-20-0325 Order filed December 8, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-609 ) JAMAIN LAMAR McFADDEN, ) Honorable ) Brendan A. Maher, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court. Justices Schostok and Hudson concurred in the judgment.

ORDER

¶1 Held: Defendant’s 10-year sentence for aggravated discharge of a firearm was not an abuse of discretion where the sentence was near the midpoint of the applicable range and the trial court appropriately weighed the mitigating factors against the severity of the crime, which involved a shooting outside a busy shopping mall. Also, there was no conflict in the sentencing-credit statute, which clearly provided that a person who commits aggravated discharge of a firearm after June 23, 2005, must serve the sentence at 85%, regardless of whether the offense resulted in great bodily harm to the victim.

¶2 Defendant, Jamain Lamar McFadden, pleaded guilty to aggravated discharge of a firearm

(720 ILCS 5/24-1.2(a)(2), (b) (West 2018)). Following a hearing, he was sentenced to 10 years’

imprisonment. At issue in this appeal is whether (1) the 10-year sentence is excessive, and (2) 2021 IL App (2d) 200325-U

defendant is entitled to day-for-day credit because of a conflict in the sentencing-credit statute.

We determine that (1) defendant’s sentence is not excessive, and (2) he is not entitled to day-for-

day credit. Accordingly, we affirm.

¶3 I. BACKGROUND

¶4 After firing a gun outside of Cherry Valley Mall on March 18, 2018, defendant was charged

with several offenses. He pleaded guilty to aggravated discharge of a firearm, and the State

dismissed the other charges. No agreement was made concerning a sentence. Before accepting

defendant’s guilty plea, the trial court admonished defendant that he faced a sentence of between

4 and 15 years in prison. 730 ILCS 5/5-4.5-30(a) (West 2018). The court also advised defendant

that, because day-for-day credit did not apply, he would have to serve 85% of his sentence.

Defendant told the court that he understood.

¶5 At the sentencing hearing, the trial court learned that defendant had a limited criminal

history, obtained his general equivalency diploma (GED) while in jail, and participated in Bible

study classes that the jail offered. Defendant’s family testified to defendant’s good character,

noting that defendant did not suffer many hardships growing up. However, the three years

defendant’s mother was incarcerated were difficult for him, as defendant was very close to her.

During those years, defendant associated with “the wrong people.” Defendant—who apologized

to the trial court, the State, and his family—confirmed that his mother’s incarceration affected him

and “turned [him] to the streets.”

¶6 Evidence concerning the incident at Cherry Valley Mall indicated that defendant and five

other men were involved in the shooting. One of the men, Marchello Johnson, fired a weapon

from his car in the parking lot while defendant fired his gun right outside an entrance to the mall.

Defendant was chasing one of the other five men when he turned to fire at Johnson. Many people

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were milling around the mall and the parking lot when shots were fired. Defendant ran away from

the scene and unsuccessfully attempted to dispose of his gun.

¶7 Defendant was 20 years old when he committed the offense. He was 19 years old when he

committed two prior weapons offenses. In case No. 17-CF-388, defendant was convicted of

unlawful use of a weapon and sentenced to probation. Soon after his case was assigned to a

probation officer, a petition to revoke probation was filed because defendant never reported to

probation. That petition was pending at the time of defendant’s sentencing.

¶8 In case No. 18-CF-3006, the car defendant was driving was stopped because it did not have

a front license plate. The officer who searched the car found a loaded gun under the driver’s seat.

Defendant was charged with unlawful possession of a firearm by a street-gang member and

aggravated unlawful use of weapons. That case was also pending at the time of defendant’s

sentencing.

¶9 The trial court sentenced defendant to 10 years’ imprisonment, noting that defendant would

have to serve 85% of it. In imposing that sentence, the court considered that defendant failed to

complete probation in case No. 17-CF-388; brought a gun to a place where guns were prohibited;

and knew, as a convicted felon, that he could not possess a weapon. The court also considered

that defendant was young, impetuous, and immature; had a limited criminal history; had a

supportive family; accepted responsibility for his actions; had difficulties when his mother was

incarcerated; may have been provoked by Johnson; demonstrated rehabilitative potential by

obtaining his GED and attending Bible study; and expressed remorse. The court also noted that

no one was harmed by the shooting. Moreover, although the judge who sentenced defendant was

not the same judge who presided over Johnson’s case, the court considered Johnson’s 12-year

sentence and the circumstances under which it was imposed, including that Johnson was convicted

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following a trial, was imprisoned three times previously, and was older than defendant. Of great

importance to the trial court here was the fact that the shooting occurred when many innocent

bystanders were present. Indeed, the court repeatedly commented throughout its lengthy ruling

that such conduct needed to be deterred.

¶ 10 Defendant moved the trial court to reconsider, arguing that the court overlooked several

mitigating factors, including defendant’s youth and rehabilitative potential. The court denied the

motion. The court asserted that it was aware of defendant’s age and rehabilitative potential but

found that the need to deter others was of greater importance.

¶ 11 Following the court’s ruling on the motion to reconsider, the State noted that it was “in the

position to resolve” case Nos. 17-CF-388 and 17-CF-3006. The State dismissed case No. 17-CF-

3006, and defendant was unsuccessfully discharged from probation in case No. 17-CF-388.

Defendant then filed this timely appeal.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant argues that (1) his 10-year sentence for aggravated discharge of a

firearm is excessive, and (2) he is entitled to day-for-day credit because of a conflict in the

sentencing-credit statute. We consider each argument in turn.

¶ 14 A. Excessive Sentence

¶ 15 First, we address whether defendant’s sentence is excessive. It is well established that the

trial court’s sentencing decision is entitled to great deference and weight. People v. Latona, 184

Ill. 2d 260, 272 (1998). A sentence within the statutory limits for the offense will not be disturbed

absent an abuse of discretion (People v. Coleman, 166 Ill. 2d 247, 258 (1995)), which occurs when

the sentence “is greatly at variance with the spirit and purpose of the law, or manifestly

disproportionate to the nature of the offense” (People v. Stacey, 193 Ill. 2d 203, 210 (2000)).

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Accordingly, we will not reduce a sentence merely because we might weigh the pertinent factors

differently. Id. at 209.

¶ 16 The weight to be attributed to each factor in aggravation and mitigation depends upon the

circumstances of the case. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998). In fashioning a sentence,

the trial court is not required to recite and assign a value to each mitigating factor, and the existence

of mitigating factors does not obligate the trial court to impose the minimum sentence. People v.

Adamcyk, 259 Ill. App. 3d 670, 680 (1994). Rather, where mitigating evidence was before the

trial court, we presume that the sentencing judge properly considered the evidence, absent some

indication to the contrary other than the sentence itself. People v. Allen, 344 Ill. App. 3d 949, 959

(2003).

¶ 17 Here, defendant pleaded guilty to aggravated discharge of a firearm, a Class 1 felony. 720

ILCS 5/24-1.2(a)(2), (b) (West 2018). A defendant who enters an open plea to a Class 1 felony

faces a sentence between 4 to 15 years. 730 ILCS 5/5-4.5-30(a) (West 2018). 1 Defendant’s 10-

year sentence is 6 months above the midpoint of this range.

¶ 18 Recognizing that his sentence is within the statutorily authorized range, defendant argues

that his sentence should be reduced because the trial court did not “meaningfully” and “fully”

consider his (1) acceptance of guilt; (2) expression of remorse; (3) limited criminal history;

(4) rehabilitative potential; (5) family circumstances; and (6) youth. As the State notes, the record

rebuts defendant’s arguments.

1 Defendant claims that the sentencing range is 4 to 14 years. Clearly, that is not correct.

See id. For its part, the State does not comment on the error defendant made. We caution both

parties to be more careful with such matters in the future.

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¶ 19 All the mitigating factors the defendant cites were expressly considered by the trial court

when it fashioned the 10-year sentence. The court credited defendant with these mitigating factors

but gave more weight to the severity of the crime and the need to deter others from firing weapons

outside a busy public place where innocent people could be hurt. This was proper. People v.

Charles, 2018 IL App (1st) 153625, ¶ 47 (“The most important sentencing factor is the seriousness

of the offense, and the court need not give greater weight to rehabilitation or mitigating factors

than to the severity of the offense.”). Because we see no abuse of discretion in the court’s

assessment, we decline defendant’s invitation to modify his sentence. See People v. Streit, 142

Ill. 2d 13, 19-20 (1991).

¶ 20 To the extent that defendant argues that his sentence should be reduced in light of Johnson’s

sentence and the circumstances under which it was imposed, we find defendant’s argument

unpersuasive. While Illinois courts have held that fundamental fairness requires that similarly

situated defendants not receive grossly disparate sentences, that principle applies “only in the

context of codefendants involved in the same crime.” People v. Fern, 189 Ill. 2d 48, 58 (1999).

Defendant and Johnson were not codefendants. 2 Although they were both involved in the

shooting, “equal sentences are not required for all participants in the same crime.” People v.

Stroup, 397 Ill. App. 3d 271, 273 (2010). Moreover, given “the intricacies that work into the

2 Even if they were codefendants, defendant has not provided us with a record from

Johnson’s case that would enable us to compare defendant’s and Johnson’s sentences. See People

v. Anderson, 2021 IL App (2d) 191001, ¶ 28 (“[I]f we have no record of the factors that the trial

court relied on when sentencing the codefendant, we cannot decide whether any sentencing

disparity was unfair.”).

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sentencing court’s judgment, including but not limited to that court’s direct observations of the

defendant’s demeanor,” courts recognize that “no two cases are ever truly ‘the same.’ ” People v.

Terneus, 239 Ill. App. 3d 669, 678 (1992). This basis for disparate sentences is especially

applicable here, where the same judge did not preside over both cases.

¶ 21 Moreover, there is questionable merit to defendant’s extensive argument that the trial court

should have given his youth more weight. As we have recently noted, courts are departing,

however slightly, from the position that trial courts must give great weight at sentencing to a

juvenile’s youth. See People v. Nichols, 2021 IL App (2d) 190659, ¶ 25 (discussing Jones v.

Mississippi, 593 U.S. ___, 141 S. Ct. 1307 (2021)). See also People v. Dorsey, 2021 IL 123010,

¶ 42-43 (discussing impact of Jones on prior Illinois decisions). Thus, youth may not now be as a

significant mitigating factor as defendant suggests. That said, as noted above, the court did

consider defendant’s youth in fashioning the sentence. Again, defendant is asking this court to

reevaluate the sentencing factors and give greater weight to his age, which is something we cannot

do.

¶ 22 B. Day-For-Day Credit

¶ 23 The second issue we address is whether defendant is entitled to day-for-day credit because

of what he perceives as a conflict in the sentencing-credit statute. The statute at issue—sections

3-6-3(a)(2)(iii) and (iv) of the Unified Code of Corrections Code (Code) (730 ILCS 5/3-6-

3(a)(2)(iii), (a)(2)(iv) (West 2018))—provides:

“[T]he rules and regulations on sentence credit shall provide, with respect to offenses listed

in clause (i), (ii), or (iii) of this paragraph (2) committed on or after June 19, 1998 or with

respect to the offense listed in clause (iv) of this paragraph (2) committed on or after June

23, 2005 *** the following:

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***

(iii) that a prisoner serving a sentence for *** aggravated discharge of a firearm

*** when the court has made and entered a finding *** that the conduct leading to

conviction for the enumerated offense resulted in great bodily harm to a victim, shall

receive no more than 4.5 days of sentence credit for each month of his or her sentence of

imprisonment;

(iv) that a prisoner serving a sentence for aggravated discharge of a firearm,

whether or not the conduct leading to conviction for the offense resulted in great bodily

harm to the victim, shall receive no more than 4.5 days of sentence credit for each month

of his or her sentence of imprisonment.”

¶ 24 Because defendant’s crime was committed on March 18, 2018, he notes that both sections

3-6-3(a)(2)(iii) and (iv) apply. He argues that the applicability of both subsections creates a

conflict and, under the rule of lenity, he is entitled to day-for-day sentencing credit. See People v.

Lee, 397 Ill. App. 3d 1067, 1069 (2010) (“In criminal prosecutions, the rule of lenity requires

ambiguities in statutes to be resolved in a defendant’s favor.”).

¶ 25 The First District has twice addressed and rejected this same argument. See People v.

Darius Williams, 2017 IL App (1st) 150795, ¶¶ 50-54; People v. James Williams, 2015 IL App

(1st) 130097, ¶¶ 59-63. In Darius Williams, the defendant, like defendant here, was convicted of

aggravated discharge of a firearm and argued that day-for-day credit applied because he committed

his crime after both dates specified in sections 3-6-3(a)(2) of the Code. Darius Williams, 2017 IL

App (1st) 150795, ¶¶ 1, 52. The First District disagreed. Id. ¶ 54. The court reasoned:

“[I]t seems that the legislature intended, by including these two effective dates, that the

penalties for aggravated discharge of a firearm should change depending on when they

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were committed. If the crime was committed between June 19, 1998[,] and June 22, 2005,

then clause (iii) would apply, and the defendant could receive day-for-day credit unless the

trial court made the necessary finding [of great bodily harm.] But the penalty became more

severe starting on June 23, 2005, and there would be no day-for-day credit regardless of

whether the conduct resulted in great bodily harm. Our interpretation of the statute’s plain

language is consistent with [James Williams], where the defendant raised the same

argument. The [James Williams] court rejected it, noting that the language indicated that

the legislature ‘deemed this offense to be of such a serious nature, that it sought to enhance

the time served provision regardless of bodily harm to a victim.’ [Citation]. We agree and

reject this claim.” (Emphases added.) Id. ¶ 54.

Like the courts in Darius Williams and James Williams, we determine that the legislature intended

to enhance the term served for aggravated discharge of a firearm regardless of whether the victim

suffered great bodily harm. Thus, we reject defendant’s argument here.3 We determine that there

is no conflict between sections 3-6-3(a)(2)(iii) and (iv) of the Code, and thus, defendant is not

entitled to day-for-day sentencing credit.

¶ 26 Defendant argues that neither Darius Williams nor James Williams should be followed

here, as neither case looked to the legislative history to resolve the alleged conflict. While it is

true that neither court consulted legislative history, defendant himself has not cited any legislative

history or other authority suggesting that the legislature intended something different than what

the plain language indicates. Accordingly, we will not entertain defendant’s argument. See Ill. S.

3 We note that defendant did not object when he was admonished at the plea hearing (and

at several points thereafter) that he would have to serve 85% of his sentence.

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Ct. R. 341(h)(7) (eff. May 25, 2018) (failure to cite authority in support of appellate argument

waives or forfeits the contention on appeal).

¶ 27 III. CONCLUSION

¶ 28 For these reasons, we affirm the judgment of the circuit court of Winnebago County.

¶ 29 Affirmed.

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