2021 IL App (1st) 171510-U No. 1-17-1510 Order filed April 15, 2021 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 1069 ) MARKEEM SCOTT, ) Honorable ) William T. O’Brien, Defendant-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Justice Reyes concurred in the judgment. Justice Martin specially concurred.
ORDER
¶1 Held: We affirm defendant’s conviction for robbery and sentence of four years’ probation over his contentions that the evidence was insufficient to sustain his conviction and that his sentence was excessive.
¶2 Following a bench trial, defendant Markeem Scott was convicted of robbery (720 ILCS
5/18-1(a) (West 2012)) and sentenced to four years of probation, subject to conditions of the
probation program supervised by the Gang Intervention Unit of the Cook County Adult Probation No. 1-17-1510
Department. On appeal, he contends that his conviction must be reversed because there was
insufficient identification evidence to prove beyond a reasonable doubt that he was the offender.
He also claims that the court erred in sentencing him to “gang probation” and that the four-year
term of probation is excessive. For the following reasons, we affirm. 1
¶3 Defendant was charged in two separate cases (13 CR 1068 and 13 CR 1069) for crimes
against separate victims on the night of November 30, 2012. Although there was a joint bench trial
for both cases, only one of those cases (13 CR 1069) is at issue in this appeal. 2 In that case,
defendant was charged by indictment with robbery (count I), and two counts of aggravated battery
(counts II and III) for offenses against Allison Helliwell. The State elected to proceed on count I
and II and nol-prossed count III.
¶4 At trial, Helliwell testified that at approximately 9:35 p.m. on November 30, 2012, she left
her Damen Avenue apartment in Wicker Park to go to her car. Her boyfriend had last parked the
car, so she knew the vehicle’s general vicinity but not its exact location. She walked down an alley
and saw a car parked near a viaduct that looked similar to hers, but then saw it had a different
license plate. As she continued to search, an individual came walking from the direction of the
viaduct on the other side of the street and said “hey.” She identified the individual as defendant.
She was not looking at him before he spoke to her, but she turned to face him after he spoke.
¶5 Asked about the lighting conditions when she saw defendant, Helliwell said there was a
street light and lights under the viaduct. As defendant approached her, she saw a second individual,
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. 2 Case 13 CR 1068 concerned alleged offenses against Jennessa Berg and Sofia Becker, who also testified at trial but whose testimony is not relevant to this appeal. Defendant was found not guilty of those offenses.
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who was wearing a mask, come from the area of the viaduct. The two individuals came up to her
quickly as she backed up. Helliwell testified: “I had my car keys in my hand and my bag like this,
and they just came up right next to me, took my car keys from my hand and took my bag off.”
Asked how close defendant came to her, she stated “very close” and testified that he was facing
her. Defendant took her bag, while the other man took her keys. Defendant then grabbed her jacket
and threw her on the ground. After she was on the ground, she was looking at defendant, who
called her a “stupid f***ing bitch.” Defendant and the masked person then ran away. Helliwell ran
back to her apartment, called 911, and described the offenders. She testified that she described
defendant as an African American male, medium complexion, wearing all black with his hair in
short dreadlocks. She described the other offender as wearing a mask and black clothing.
¶6 Helliwell spoke with police officers who arrived at her apartment. After “not very much
time had passed,” police told her that they had a suspect in custody. Helliwell went to a police
station and an officer escorted her near a parked police car, where officers “pulled the defendant
out of the back seat and shined a light on him.” She positively identified defendant.
¶7 On cross-examination, Helliwell acknowledged that it was dark outside but that she was in
a well-lit alley. She estimated the incident lasted about 30 seconds and agreed that she spoke to
police immediately after it happened. She agreed that the offender who pushed her down and spoke
to her was right next to her. When she identified defendant, she estimated she was standing about
four feet away from the police car. She acknowledged that she did not view a photo array or
physical lineup.
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¶8 The State introduced certain photographs (People’s Exhibits 1 through 9) into evidence,
which included photographs of Helliwell, defendant, and defendant’s clothing from the night of
his arrest.3 The State rested, and defendant’s motion for directed verdict was denied.
¶9 Detective Joseph Finegan testified that he spoke with Helliwell after responding to a
robbery call. Helliwell told that him that the first offender was wearing a black top, blue jeans,
with braids and the second person was wearing a black ski-mask type hat and blue jeans. He did
not recall her saying that either man was wearing a black hoodie with a red graphic. Finegan was
present when Helliwell identified defendant later that evening; he estimated that the distance
between Helliwell and defendant was 30 feet. Finegan testified that defendant was wearing a black
sweater, sweatshirt, and blue jeans.
¶ 10 On cross-examination, Finegan agreed that Helliwell described the person who pushed her
to the ground as being about five feet eight inches tall, 190 pounds, about 18 years old, with black
hair, brown eyes, braids-style hair and a medium-brown complexion. He agreed that defendant
was illuminated by squad lights during the identification, and that Helliwell positively and
unequivocally identified him.
¶ 11 Defendant testified that as of November 30, 2012 he was 18 years old and a high school
senior. That evening, he went to an electronics store called Micro Center to study. He was wearing
a black hoodie with red graphics in the front and dark green pants with green graphics; he identified
Defense Exhibit 1 as the hoodie he was wearing, and described it as having graphics that look like
red horseshoes. Defendant denied that his hair was in braids on that day. He left Micro Center at
approximately 8:30 p.m. and went to a nearby Vitamin Shoppe, and then to a McDonald’s
3 After the parties submitted their briefing in this appeal, defendant supplemented the record on appeal with People’s Exhibits 1 through 9, which this court has reviewed.
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restaurant. He left the restaurant at approximately 10 p.m., planning to take a bus home. He noticed
a police car, and an officer inside asked him to approach. The police questioned him, searched him
and told him to get into the car. The police eventually pulled over, told him to get out of the car,
and shined a light on him. Defendant denied robbing anyone.
¶ 12 Following argument, the trial court found defendant guilty. The trial court explicitly
recognized the factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), regarding the assessment
of identification testimony and found that the factors weighed in favor of Helliwell’s testimony.
The court also remarked that it “didn’t believe [defendant’s] story” that he was studying at a retail
store that evening.
¶ 13 Defendant filed a motion for a new trial. At a posttrial hearing, defense counsel argued that
was no evidence of injury to Helliwell to maintain the finding of guilt on aggravated battery (count
II). The court agreed, vacating the finding of guilt on count II but maintaining the finding of guilt
for robbery (count I).
¶ 14 Defendant’s presentence investigative report (PSI) indicated that he was born in 1994 and
had one juvenile arrest for burglary in 2008. He had no prior adult convictions or other pending
cases. Defendant had graduated from high school, expected to receive an associate’s degree in
2017, and planned to continue his studies. The PSI indicated that since 2013 he had been employed
at the GAIA Movement, a non-for-profit organization. Defendant also submitted a number of
letters from coworkers, supervisors, and relatives attesting to his good character.
¶ 15 In aggravation, the State emphasized that Helliwell was alone and that he not only robbed
her, but “physically abused” her by pushing her to the ground and “emotionally abuse[d]” her by
calling her a “f***ing bitch.” The State also referenced the evidence of the alleged robbery against
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Berg and Becker, acknowledging that the court had found him not guilty beyond a reasonable
doubt, but arguing that it was “more probably true than not.”
¶ 16 In mitigation, defense counsel emphasized that defendant was only 18 years old at the time
of the offense and was now 22 years old, attending college, and employed. Counsel referenced the
letters submitted on defendant’s behalf. Counsel emphasized that defendant had no prior
convictions and had never been a gang member despite living in a “crime-infested neighborhood
where gang activity is rampant.” Counsel argued that defendant was on the “right path,” had “put
education first” and was working to support himself. Counsel also noted that defendant had spent
nine months in jail in connection with this case, until his father posted bond.
¶ 17 Defendant declined to address the court in allocution. In imposing sentence, the court
stated:
“Court has considered the presentence investigation, and it’s been
supplemented by several letters, and I have reviewed those letters. Also, [the] Court
has made itself aware again [and] been reacquainted with the facts of the case, the
statutory factors in mitigation, as well as the arguments presented in mitigation.
The Court has also considered the statutory factors in aggravation, as well as those
arguments presented in aggravation.
And, therefore, on the charge of robbery, the Court is going to sentence you
to four years gang probation. You must follow all the terms and conditions of gang
probation, as well as the adult probation department, and the drug and alcohol
evaluation, follow all treatment recommendations of the evaluation. I’m also going
to give you 20 days of Sheriff’s Work Alternative Program, as well as periodic
random urine drops, and mandatory fees and costs.”
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¶ 18 After warning defendant that he could be resentenced to up to seven years’ imprisonment
if he violated the terms of probation, the court also told defendant:
“THE COURT: This case involved someone that you are with. And for that
guy, he decided he was going to wear the mask, and you didn’t get a mask. And my
inkling on this is that you were along for the ride. You need to find new friends.
Because all the information that I received, despite the fact that you are in an area
that as somebody characterized [was] infested with crime, that’s the deal. It’s not
an excuse. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: So, again, I’m taking a chance on you. I really abhor when
people accost people on the street. You have changed lives forever. And I think that
- - I don’t care where you’re raised, or who you are, you know that you’re not
supposed to do that. It’s not a thing of education; it’s upbringing, and I know your
folks raised you better than that that.
So, it will be four years gang probation, drug and alcohol evaluation, follow
all treatment recommendations of that evaluation, 20 days Sheriff’s Work
Alternative program, periodic random urine drops, and mandatory fees and costs.”
¶ 19 Defendant did not file a motion to reconsider sentence. He filed a timely notice of appeal.
¶ 20 On appeal, defendant first argues that his conviction for robbery must be reversed because
the State failed to prove his guilt beyond a reasonable doubt. Specifically, he asserts that
Helliwell’s identification testimony was “highly unreliable” and that he gave “unrebutted”
testimony that he was elsewhere at the time of the robbery. Defendant also notes the lack of other
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evidence connecting him to the robbery. Accordingly, he asks that we reverse his conviction
outright.
¶ 21 “When reviewing a challenge to the sufficiency of the evidence, this court considers
whether, viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in
original and internal quotation marks omitted.) People v. Wheeler, 226 Ill. 2d 92, 114 (2007). In a
bench trial such as the instant case, “it is for the trial judge, sitting as the trier of fact, to determine
the credibility of witnesses” and to “resolve any conflicts in the evidence.” People v. Siguenza-
Brito, 235 Ill. 2d 213, 228 (2009).
¶ 22 A reviewing court “will not retry the defendant or substitute its judgment for that of the
trier of fact on questions involving the weight of the evidence, conflicts in the testimony, or the
credibility of witnesses. [Citation.]” People v. Corral, 2019 IL App (1st) 171501, ¶ 71. “Only
where the evidence is so improbable or unsatisfactory as to create reasonable doubt of the
defendant’s guilt will a conviction be set aside. [Citation.]” Id. ¶ 72.
¶ 23 In this case, to prove defendant guilty of robbery, the State had to prove that he knowingly
took property from Helliwell by the use of force or by threatening the imminent use of force.
720 ILCS 5/18-1(a) (West 2012). In this court, defendant does not challenge proof of any particular
element of the offense, but rather contests Helliwell’s identification testimony.
¶ 24 “Identification evidence which is vague or doubtful is insufficient to support a conviction.
[Citation.] A single witness’ identification of the accused, however, is sufficient to sustain a
conviction if the witness viewed the accused under circumstances permitting a positive
identification.” People v. Joiner, 2018 IL App (1st) 150343, ¶ 47. This court has explained:
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“In assessing identification testimony, we consider the following five factors set
forth in Neil v. Biggers, 409 U.S. 188 (1972): (1) the witness’ opportunity to view
the defendant during the offense; (2) the witness’ degree of attention at the time of
the offense; (3) the accuracy of the witness’ prior description of the defendant;
(4) the witness’ level of certainty at the subsequent identification; and (5) the length
of time between the crime and the identification. [Citation.]” Id.
None of these factors alone is dispositive; “rather, the trier of fact is to take all of the factors into
consideration.” Id. (citing Biggers, 409 U.S. at 199-200). Further, we keep in mind that
“[e]yewitness testimony is insufficient only if the record compels the conclusion that no reasonable
person could accept the testimony beyond a reasonable doubt. [Citation.]” People v. Charles,
2018 IL App (1st) 153625, ¶ 25.
¶ 25 Defendant urges that application of the five Biggers factors establishes that Helliwell’s
“weak and uncorroborated identification testimony” was insufficient to support his conviction.
For the following reasons, we disagree.
¶ 26 With respect to the first factor—the opportunity to observe the offender—he suggests the
“stress of this extremely brief incident” prevented Helliwell from getting a “good look at the
offender” as her attention must have been “split between two people.” However, Helliwell testified
that she turned to face defendant after he approached and spoke to her. At no point did Helliwell
suggest that she could not see defendant’s face. Indeed, she testified that the area was well-lit and
that defendant was not wearing a mask. See People v. Macklin, 2019 IL App (1st) 161165, ¶ 30
(victims “certainly had an adequate opportunity to view [defendant] *** as there was sufficient
artificial lighting and [defendant’s] face was not covered.”). Nor did Helliwell testify that the
second offender kept her from getting a good look at defendant. Rather, she testified that it was
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defendant who pushed her down and called her a “bitch.” Further, this court has held that even
identifications made during brief encounters may be found credible. See, e.g., Macklin, 2019 IL
App (1st) 161165, ¶ 30 (trial court could find witness had adequate opportunity to view defendant
even assuming opportunity “lasted seconds rather than minutes”); People v. Petermon, 2014 IL
App (1st) 113536, ¶ 32 (identification testimony credible despite fact that the “entire incident took
less than a minute”); People v. Parks, 50 Ill. App. 3d 929, 932-33 (1977) (identification from attack
lasting “five to ten seconds” sufficient to sustain conviction)).
¶ 27 With respect to the second factor, defendant primarily argues that Helliwell’s degree of
attention was “insufficient to yield a reliable identification” because of the “highly stressful
situation” of being robbed and pushed to the ground. He cites the Supreme Court of New Jersey
decision, State v. Henderson, 208 N.J. 208 (2011) for the proposition that stress can diminish an
eyewitness’s ability to recall and make an accurate identification. Defendant also contends that
“[n]umerous scientific studies have confirmed that high levels of stress” can negatively impact a
witness’ ability to make an accurate identification, citing academic articles. Notably, he does not
cite any Illinois precedent suggesting that we must discount reliability of a witness’ identification
in a stressful situation. Further, we note that he did not make such a scientific argument in the trial
court, through expert testimony or otherwise. See People v. Tomei, 2013 IL App (1st) 112632,
¶ 56 (rejecting scientific argument regarding fourth Biggers factor; since “defendant did not
present expert testimony, we do not find defendant’s argument persuasive that the fourth factor
*** should be given little weight.”).
¶ 28 In any event, nothing in the record suggests that the stress of the encounter interfered with
Helliwell’s ability to pay attention. Instead, she offered detailed testimony about the incident,
including defendant’s appearance, actions, and words to her. The trial court was certainly entitled
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to find that this indicated a sufficient degree of attention. See People v. Blankenship, 2019 IL App
(1st) 171494, ¶ 29 (finding that second Biggers factor favored the State where witness “was able
to give a detailed account of the events of the robbery and the physical descriptions of both
defendant and gun.”).
¶ 29 Defendant nonetheless contends that the “lack of specificity of Helliwell’s description”
“shows that her degree of attention was low.” He claims that the “entirety of Helliwell’s description
of the unmasked offender was that he was African-American, had a medium complexion, short
dreadlocks and was wearing all black.” We disagree, as defendant ignores Finegan’s testimony
that she additionally described defendant’s weight, height, and estimated him to be about 18 years
in age.
¶ 30 Similarly, we reject defendant’s suggestion that Helliwell’s degree of attention was
insufficient because her description was “missing significant details.” He points out that Helliwell
did not mention the red horseshoes on his sweatshirt, and that she described him as wearing black
pants or jeans when, in fact, he was wearing green pants with a logo on them. He also claims a
discrepancy between her testimony that his hair was in short dreads, and Finegan’s testimony that
she described him as having braids. We reiterate that we do not substitute our judgment for that of
the trier of fact, who is responsible for assessing what weight should be afforded to any
discrepancies in the evidence. People v. Sutherland, 223 Ill. 2d 187, 242 (2006) (the weight to be
given witness testimony, including “resolution of inconsistences and conflicts in the evidence,” is
the responsibility of the trier of fact. [Citations.]”). In this case, the alleged minor discrepancies or
omissions did not preclude the trial court from crediting Helliwell’s identification. See People v.
Slim, 127 Ill. 2d 302, 309 (1989) (“The presence of discrepancies or omissions in a witness’
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description of the accused do not in and of themselves generate a reasonable doubt as long as a
positive identification has been made. [Citation.]”).
¶ 31 For the same reasons, we reject defendant’s suggestion that the third Biggers factor—
accuracy of the prior description—weighed against Helliwell’s identification. On that factor,
defendant restates his contention that Helliwell’s description was too general and did not include
significant details such as the red graphics on his clothing. As discussed, the court heard evidence
that Helliwell described several aspects of defendant’s appearance to police, including his height,
weight, complexion, and approximate age. See Blankenship, 2019 IL App 171494, ¶ 31
(in discussing third factor, noting that victim identified “not only defendant’s clothing but also his
height, build and complexion.”). Moreover, Helliwell unequivocally testified that she viewed
defendant’s face. See id. (“even though [witness] gave police only a general description of the
robber, his identification of defendant as the robber based on his recognition of defendant’s face
supports the accuracy of his identification.” (citing Tomei, 2013 IL App (1st) 112632, ¶¶ 51-52)).
¶ 32 With respect to the fourth Biggers factor, defendant does not dispute Helliwell’s certainty
in her identification. Rather, he argues that this is “the least important” of the Biggers factors, as
it has been “discredited” by a “large body of social science research” disputing the relationship
between a witness’ confidence and the accuracy of identification. However, defendant did not
present expert testimony at trial on this subject; in such situations “[t]his court has found
defendant’s argument unpersuasive where no such evidence was presented to support a finding
that the witness’s certainty should be given little weight.” Blankenship, 2019 IL App (1st) 171494,
¶ 32 (citing Tomei, 2013 IL App (1st) 112632, ¶ 56).
¶ 33 Defendant acknowledges, and we agree, that the fifth and final Biggers factor—the length
of time between the crime and the identification—supports Helliwell’s identification. However,
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he argues this factor is “more than offset by the extremely suggestive nature” of the initial showup
identification. In setting forth this argument, defendant does not cite any case suggesting that the
fifth Biggers factor should be discounted in cases involving a showup identification. Importantly,
our supreme court has “approved showups near the scene of the crime as acceptable police
procedure designed to aid police in determining whether to continue or end the search for the
culprits.” Jones, 2017 IL App (1st) 143766, ¶ 27 (quoting People v. Lippert, 89 Ill. 2d 171, 188
(1982)).
¶ 34 In sum, the five Biggers factors support the trial court’s decision to find Helliwell’s
identification to be credible and reliable. We reiterate that a single witness’ identification “is
sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting
a positive identification.” People v. Joiner, 2018 IL App (1st) 150343, ¶ 47; see also Siguenza-
Brito, 235 Ill. 2d at 228 (“the testimony of a single witness, if positive and credible, is sufficient
to convict, even though it is contradicted by the defendant.”). Here, the record does not compel the
conclusion that no reasonable person could accept Helliwell’s testimony beyond a reasonable
doubt. See Charles, 2018 IL App (1st) 153625, ¶ 25. Accordingly, we find the evidence presented
sufficient to sustain defendant’s conviction.
¶ 35 In reaching this conclusion, we reject defendant’s claim that the trial court’s
“misremembrance of the evidence” contributed to its reliance on Helliwell’s identification.
Specifically, he claims the trial court incorrectly stated that Helliwell was “looking at the first
offender as he approached her” when “[i]n fact, Helliwell testified that she did not look at this
person until he was next to her” and “[i]t was only when this person spoke to her that she turned
to face him.” After reviewing the transcript, we agree with the State that the trial court did not
“misremember” the evidence. In discussing Helliwell’s testimony, the trial court stated:
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“She saw a man walking from that viaduct toward her. He was on the sidewalk, and
he said, hey, to her. She looked at him, and *** the man seemed to be -- seemed
like he wanted to ask a question or direction. She was now looking at him as he
approached.”
Although Helliwell may not have explicitly testified that she faced defendant as he approached,
this could be reasonably inferred from her testimony that she turned toward defendant after she
heard him speak to her. In any event, this alleged “misrememberance” is at most a minor
misstatement that could not constitute error. See People v. Williams, 2017 IL App (1st) 150795,
¶ 39 (“if a trial court’s ‘minor misstatement’ of the evidence did not affect the basis of the ruling,
it does not violate due process.” (citing People v. Schuit, 2016 IL App (1st) 150312, ¶ 107)).
¶ 36 Likewise, we reject defendant’s arguments that the trial court was “arbitrary” in declining
to accept defendant’s “unrebutted” testimony about his activities on the evening of the robbery.
Clearly, his testimony was not “unrebutted” in light of Helliwell’s unequivocal identification of
him. It was the responsibility of the trial court, sitting as the trier of fact, to determine the credibility
of the witnesses and resolve conflicts in the evidence. Siguenza-Brito, 235 Ill. 2d at 228. Defendant
essentially asks us to substitute our judgment for that of the trial court with respect to witness
credibility, which we cannot do. Id. at 224-25.
¶ 37 Defendant next challenges his sentence of four years of “gang probation,” i.e., the adult
probation program overseen by the Gang Intervention Unit of the Adult Probation Department,
which entailed certain conditions beyond those of standard probation. Specifically, the record
reflects that defendant was subject to special conditions, including: disassociating from all known
gang members and refraining from gang activity; refraining from possession of gang paraphernalia
or clothing; complying with a 7 p.m. curfew; submitting to searches when requested by the
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probation officer; submitting to breath, urine, or blood tests for drugs or alcohol; not leaving the
state without permission; performing 130 hours of community service; verifying employment
monthly; and attending counseling, treatment or educational programs as directed by probation
officers.
¶ 38 Defendant’s challenge to his sentence raises two distinct arguments. First, he claims that
“gang probation” is inappropriate because there was no evidence that he was a gang member, as
necessary to “qualify” him for that particular program. Separately, he argues that the four-year
probation period was excessive in consideration of mitigating factors and his rehabilitative
potential, as well as the fact that he had already spent nine months in pretrial custody. On these
grounds, he requests that we reduce his sentence or remand for resentencing.
¶ 39 Defendant acknowledges that he did not preserve these arguments for review because he
did not move to reconsider his sentence. See People v. Hillier, 237 Ill. 2d 539, 545 (2010)
(to preserve a claim of sentencing error, both a contemporaneous objection and a written
postsentencing motion raising the issue are required). Nonetheless, he urges application of the
plain-error doctrine, which “bypasses normal forfeiture principles and allows a reviewing court to
consider unpreserved claims of error in specific circumstances.” People v. Thompson, 238 Ill. 2d
598, 613 (2010). Alternatively, defendant contends that his trial counsel’s failure to preserve his
sentencing claims constitutes ineffective assistance of counsel.
¶ 40 To obtain relief under the plain-error doctrine, “a defendant must first show that a clear or
obvious error occurred. [Citation.] In the sentencing context, a defendant must then show either
that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so
egregious as to deny the defendant a fair sentencing hearing. [Citation.]” Hillier, 237 Ill. 2d at 545.
Defendant contends that he is entitled to relief under either prong. However, “[t]he first step of
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plain-error review is determining whether any error occurred.” Thompson, 238 Ill. 2d at 613. Thus,
we first consider whether the trial court erred. Here, we find no error.
¶ 41 We first reject defendant’s contention that the court was not empowered to impose
conditions of “gang probation” because of lack of proof that he was in a gang. Defendant
emphasizes that his probation was supervised by the Gang Intervention Unit and refers us to
language (formerly) appearing on the Circuit Court of Cook County website stating that the Gang
Intervention Unit serves “probationers who are gang members.” 4 However, as the State points out,
no statute prevents that unit from supervising defendant’s probation, or requires proof of gang
activity as a prerequisite to imposing such conditions. Rather, a trial court’s imposition of
particular probation conditions is discretionary.
¶ 42 Section 5-6-3(b) of the Unified Code of Corrections enumerates a number of permitted
conditions of probation which may be imposed “in addition to other reasonable conditions relating
to the nature of the offense or the rehabilitation of the defendant as determined for each defendant
in the proper discretion of the Court.” 730 ILCS 5/5-6.3 (West 2016). Thus, “[t]he statute gives
the trial court the discretion to impose additional conditions of probation provided that they are
reasonable.” People v. Meyer, 176 Ill. 2d 372, 378 (1997)). “Generally, the trial court is afforded
wide discretion in fashioning the conditions of probation for a particular defendant. [Citation.]”
Id. A trial court abuses its discretion only where its ruling is arbitrary, fanciful, or unreasonable or
4 According to defendant’s opening brief and the material included in its appendix, as of April 2019, the website for the circuit court included a separate description for the adult probation program overseen by the Gang Intervention Unit, stating that “The Gang Intervention Unit provides intensive supervision *** for probationers who are gang members.” However, as of December 24, 2020 the website no longer includes a separate discussion of particular probation program. See http://www.cookcountycourt.org/ABOUT-THE-COURT/Office-of-the-Chief-Judge/Probation- Departments/Probation-for-Adults/Adult-Probation-Department/Programs.
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where no reasonable person would take the view adopted by the trial court. People v. Tolefree,
2011 IL App (1st) 100689, ¶ 53.
¶ 43 Given these authorities, we find no merit to defendant’s contention that he does not
“qualify” for “gang probation.” We also cannot say that any of the probation conditions imposed
are unreasonable, given the serious nature and circumstances of the offense, i.e. that he and another
person robbed Helliwell and pushed her to the ground. 5
¶ 44 Having rejected defendant’s preliminary argument that he did not qualify for “gang
probation,” we turn to his claim that the length of his sentence was otherwise excessive. In making
this argument, he claims that the four-year term of probation did not reflect his “clear rehabilitative
potential” and numerous mitigating circumstances, including his young age at the time of the
offense, his lack of criminal history, his education and work history, and the letters submitted on
his behalf attesting to his good character. He also notes that he spent nine months in custody.
¶ 45 A trial court must impose a sentence that balances the seriousness of the offense and the
defendant’s rehabilitative potential. People v. Knox, 2014 IL App (1st) 120349, ¶ 46. In doing so,
the court must consider aggravating and mitigating factors including “the nature and circumstances
of the crime, the defendant’s conduct in the commission of the crime and the defendant’s personal
history, including his age, demeanor, habits, mentality, credibility, criminal history, general moral
character, social environment and education.” Id. Because the trial court is in the best position to
weigh these factors, the sentence imposed will not be reversed absent an abuse of discretion. Id.
The reviewing court “must not substitute its judgment for that of the trial court merely because it
5 We further note that defense counsel specifically mentioned that defendant grew up in a “crime- infested neighborhood where gang activity is rampant,” which could reasonably have raised the court’s concern that he was susceptible to the influence of gangs.
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would have weighed these factors differently.” People v. Stacey, 193 Ill. 2d 203, 209 (2000).
“A sentence within statutory limits will not be deemed excessive unless it is greatly at variance
with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense.”
People v. Busse, 2016 IL App (1st) 142941, ¶ 20.
¶ 46 After reviewing the record, we find defendant’s sentence, which was well within statutory
limits, was not excessive or an abuse of discretion. Defendant was convicted of robbery, a Class 2
offense. 720 ILCS 5/18-1(c) (West 2016). A Class 2 felony is subject to a determinate sentencing
range of three years to seven years’ imprisonment and is subject to a period of probation not
exceeding four years. 730 ILCS 5/5-4.5-35(b), (d) (West 2016).
¶ 47 Defendant received four years of probation, rather than any determinate prison sentence.
As his sentence was well within the statutory range, it is presumably proper and will not be
disturbed absent an affirmative showing that it was “at variance with the purpose and spirit of the
law or is manifestly disproportionate to the nature of the offense.” Knox, 2014 IL App (1st)
120349, ¶ 46.
¶ 48 Defendant cannot make that showing. He notes that he “does not seek to minimize the
seriousness of the offense.” Nonetheless, he contends the four-year term of probation fails to give
adequate consideration to his youth, lack of criminal history, and rehabilitative potential, as well
as the time he previously spent in pretrial custody in connection with this case.
¶ 49 However, the record reflects that the court did take into account various mitigating factors
in exercising its discretion not to impose any prison term. Indeed, the trial court commented that
it was “taking a chance” on defendant by only imposing probation. In imposing sentence, the court
also specifically noted that it had considered the contents of the PSI and the letters submitted in
support of defendant. These materials included the complained-of factors set forth by defendant,
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i.e., his youth, lack of criminal history, and rehabilitative potential. Given this record, defendant
essentially asks us to reweigh the sentencing factors to conclude that the trial judge abused its
discretion in awarding a four-year term of probation, notwithstanding the seriousness of the
offense. This we cannot do, even assuming that we would have assessed the relevant factors
differently. Stacey, 193 Ill. 2d at 209.
¶ 50 As we have rejected defendant’s claims of error regarding his sentence, we need not
additionally discuss whether either prong of plain error review applies. See People v. Williams,
2017 IL App (1st) 150795, ¶ 40 (“There was no error, let alone ‘plain’ error, and so we need not
go further in the plain error analysis.”).
¶ 51 Similarly, we reject defendant’s suggestion that his trial counsel was ineffective for failing
to properly preserve his sentencing challenges. A defendant alleging ineffective assistance of
counsel must prove prejudice, such that “absent counsel’s deficient performance there is a
reasonable probability that the result of the proceeding would have been different.” People v.
Evans, 209 Ill. 2d 194, 219-20 (2004) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
As we have rejected his claims of error with respect to sentencing, defendant cannot demonstrate
any reasonable probability that the result would have been different, even had his trial counsel
preserved these challenges. See, e.g., People v. Brown, 2017 IL App (1st) 142877, ¶ 66 (counsel
not ineffective for failing to file motion to reconsider sentence where there was no reasonable
probability that the sentence would have been different even if motion had been filed).
As defendant cannot demonstrate prejudice, his claim of ineffective assistance is without merit.
¶ 52 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 53 Affirmed.
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¶ 54 JUSTICE MARTIN, specially concurring:
¶ 55 I wholly concur with my colleague’s well-reasoned decision. I specially concur to point
out the importance that the trial court make a sufficient record to support its reasoning when
sentencing defendants. It is well settled that courts have broad discretion in imposing conditions
of probation. People v. Meyer, 176 Ill. 2d 372, 378 (1997). However, our supreme court has
determined that this discretion is not without limitation. In re J.W., 204 Ill. 2d 50, 77 (2003).
Special conditions of probation must be reasonably tailored to the nature of the offense for which
the probationer was convicted. See People v. Goossens, 2015 IL 118347, ¶ 15. Here, Scott
complains that he was sentenced to “gang probation,” despite there being no indication he was
involved with gangs. The court, referencing a statement by defense counsel, stated: “despite the
fact that you are in an area that somebody characterized, infested with crime, that’s the deal.”
Nothing else in the record seems to support the court’s determination that “gang probation” was
warranted for this probationer. While acknowledging the broad discretion possessed by the trial
court when sentencing, trial judges are encouraged to make certain the record supports the
imposition of any special conditions of probation.
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