2021 IL App (1st) 182371-U Order filed: March 19, 2021
FIRST DISTRICT FIFTH DIVISION
No. 1-18-2371
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 JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 17 CR 5533 ) KENNETH THOMPSON, ) Honorable ) Maura Slattery Boyle, Defendant-Appellant. ) Judge, presiding ______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: We affirmed defendant’s conviction and sentence for aggravated battery causing great bodily harm, finding that the State proved him guilty beyond a reasonable doubt, that his counsel provided effective assistance, and that his nine-year sentence was not an abuse of discretion. We reduced his MSR term to one year.
¶2 Following a bench trial, the circuit court convicted defendant of aggravated battery causing
great bodily harm, aggravated battery causing permanent disfigurement, and aggravated battery
using a deadly weapon. The court sentenced defendant to nine years’ imprisonment and two years
of mandatory supervised release (MSR) for aggravated battery causing great bodily harm. The No. 1-18-2371
court merged the aggravated battery counts alleging permanent disfigurement and use of a deadly
weapon into the count alleging great bodily harm and as a result of the merger did not impose
sentences on those permanent disfigurement and deadly weapon counts. On appeal, defendant
contends that: (1) the State failed to prove him guilty beyond a reasonable doubt of aggravated
battery causing great bodily harm; (2) his trial counsel provided ineffective assistance; (3) his nine-
year sentence constituted an abuse of discretion; and (4) his MSR term should be reduced to one
year. We affirm defendant’s conviction and nine-year sentence and reduce his MSR term.
¶3 At trial, Delisa Cousins testified that on March 14, 2017, she and the victim, Ammar
Mohsen, were working in a convenience store connected to a gas station at 300 West Garfield
Boulevard. At about 6 a.m., defendant walked in and “stole” some candy from the front of the
counter. The victim “said a few words” to defendant, who then left. Defendant returned at about
7:30 a.m. The victim came around from behind the counter and told defendant to leave because he
had stolen the candy. They began arguing and then defendant struck the victim and pushed him
out the door and they started wrestling and “tussling.” Cousins stood at the door, told the victim to
let defendant go, and then returned inside. As Cousins went toward the counter, another customer
inside the store exclaimed that defendant had just stabbed the victim. Cousins called 911 and went
to the door, where she saw that the victim had been stabbed on the left side of his neck. Defendant
left.
¶4 The victim walked inside the store. He was “upset,” and he tried cleaning the wound.
Cousins saw some blood, although she agreed on cross-examination that “it wasn’t dripping all
over the place.” Cousins told him he needed a paramedic after seeing the wound and she made
another 911 call. The paramedics arrived and the victim left with them to go to the hospital. On
March 20, 2017, detectives showed Cousins a photo array and she identified defendant. -2- No. 1-18-2371
¶5 The State showed Cousins People’s Exhibit No. 2, which she identified as a photograph of
the victim with the injury to his neck that resulted from the stabbing. People’s Exhibit No. 2 is
contained in the record on appeal and it shows a laceration or tear in the skin about two inches in
length. There was no medical testimony at trial describing the depth of the wound. From People’s
Exhibit No. 2, though, one can see that the wound extends below the skin. The middle of the wound
is bloody and red; the edges of the wound show dried blood.
¶6 Detective Schmitt testified that he arrived at the gas station following the stabbing and
recovered video footage that recorded the incident. He captured a screen shot of defendant’s face
and ultimately compiled a photo line-up which included a photograph of defendant. The photo
line-ups were shown to Cousins and to the victim, after which Detective Schmitt submitted an
investigative alert to have defendant arrested.
¶7 Defendant was arrested on March 30, 2017 and brought to the police station. Detective
Schmitt and his partner spoke with defendant at about 5 p.m. After being given his Miranda
warnings, defendant initially stated that he had gotten into a fight with the victim at the gas station
and struck and bit him, but he denied using a weapon against the victim. Officer Schmitt then
showed defendant the photograph of the victim’s injured neck, and defendant responded that “he
had a house key that must have caused the cut on the neck.” Detective Schmitt showed defendant
a screen shot from one of the video clips showing him “holding an object in his hand that was
considerably larger than a key or set of keys.” 1 Defendant subsequently admitted to stabbing the
1 People’s Exhibit No. 8, the screen shot that Detective Schmitt showed defendant, was admitted into evidence and is contained in the record on appeal. People’s Exhibit No. 8 shows a dark, side-view of defendant holding an object of some sort outside the convenience store, but it is difficult to determine from the screen shot the actual size or the identity of the object. -3- No. 1-18-2371
victim with a small pocketknife approximately three inches in length. Defendant no longer had the
pocketknife because it was stolen from his house.
¶8 Detective Schmitt also met with the victim at the police station a “couple days” after the
stabbing. The victim removed a bandage from his neck and showed him the stab wound. The
victim also showed the detective a bite mark on his chest which he sustained in his fight with
defendant. Detective Schmitt took a photograph of the bite mark. The State showed Detective
Schmitt People’s Exhibit Nos. 6 and 7, which he identified as photographs of the bruise caused by
defendant’s bite and are contained in the record on appeal. It is difficult to make out any bruising
in People’s Exhibit No. 6. People’s Exhibit No. 7 more clearly shows a purple bruise below the
victim’s right nipple.
¶9 The State showed Detective Schmitt People’s Exhibit No. 2, the photograph of the injury
to the victim’s neck. The photograph of the injury was “a little more fresh than at the point [he]
saw it,” but it accurately depicted the injury.
¶ 10 The parties stipulated that if called to testify, Marisoll Sindellar would state that she works
for the Chicago Fire Department and that she arrived at the gas station at 300 West Garfield
Boulevard at approximately 8:10 a.m., saw the victim at 8:11, departed the scene with the victim
at 8:15 and arrived at the hospital at 8:20. Sindellar would testify that the victim had been stabbed
on the left side of his throat, that he had “approximately a two-inch laceration and he was treated
by the ambulance.” There was no stipulation or other evidence as to the type of treatment provided.
¶ 11 The court viewed video clips of the confrontation between defendant and the victim after
admitting them into evidence. The video clips are contained in the record on appeal. One of the
clips shows defendant and the victim arguing inside the gas station. Other customers are inside.
Defendant grabs the victim by the neck and pushes him. They continue to argue, and then -4- No. 1-18-2371
defendant pushes the victim outside the front door and wrestles him forcefully to the ground. They
get back to their feet and wrestle with each other. Cousins comes to the door, opens it, and says
something to them. Then she closes the door and moves back toward the counter. Defendant lunges
toward the victim, who suddenly grabs his throat and runs from defendant. Defendant follows the
victim but then walks away. As defendant’s back is to the camera during much of the fight, the
video does not clearly show the pocketknife in his hand at the time he injured the victim’s throat.
¶ 12 Other clips show the victim inside the store after the fight, continually holding a covering
(a towel or cloth) at his neck and speaking with members of the Chicago Fire Department, who
subsequently give him a different, smaller covering to place on his neck. The injury to the neck
cannot be clearly seen on the video. The victim also speaks with a police officer, walks around the
store, and looks at his cell phone.
¶ 13 The video clips were admitted without any commentary or explanation of the depicted
events by any witness.
¶ 14 The victim did not testify at trial.
¶ 15 The court convicted defendant of aggravated battery causing great bodily harm, aggravated
battery using a deadly weapon, and aggravated battery causing permanent disfigurement. The court
sentenced defendant to nine years’ imprisonment and two years of MSR for the conviction of
aggravated battery causing great bodily harm and merged the remaining two aggravated battery
convictions without imposing a sentence thereon. Defendant appeals.
¶ 16 Defendant contends that the State failed to prove him guilty of aggravated battery causing
great bodily harm. When considering a challenge to a criminal conviction based on the sufficiency
of the evidence, our inquiry is limited to whether, after viewing all the evidence in the light most
favorable to the State, any rational trier of fact could have found the essential elements of the -5- No. 1-18-2371
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). It is the function
of the trier of fact to assess witness credibility, weigh and resolve conflicts in the evidence, and
draw reasonable inferences from the evidence. People v. Jamison, 2018 IL App (1st) 160409, ¶ 31.
We will not overturn a conviction based on insufficient evidence unless the proof is so improbable
or unsatisfactory that a reasonable doubt exists as to defendant’s guilt. People v. Williams, 193 Ill.
2d 306, 338 (2000).
¶ 17 In rendering its verdict here, the court considered witness testimony as well as video clips
of the altercation and its aftermath and photographs of the injury admitted as substantive evidence.
Defendant does not argue that the video clips and photographic evidence were inadmissible to
depict the altercation and the victim’s resulting injury or that the court could not draw all
reasonable inferences from such evidence. See People v. Smith, 152 Ill. 2d 229 (1992) (discussing
the admissibility of photographic evidence); People v. Taylor, 2011 IL 110067 (discussing the
admissibility of surveillance video). Defendant’s argument, rather, is that the properly admitted
evidence, testimonial as well as photographic and video, was insufficient to convict him of
aggravated battery causing great bodily harm. When considering a verdict premised on testimonial,
as well as on photographic and video evidence, our standard of review remains the traditional one
employed in Jackson; we view the video clips and photographs admitted as substantive evidence,
examine all the testimony, and then consider all the testimonial, photographic, and video evidence
in the light most favorable to the prosecution to determine whether any rational trier of fact could
have found the essential elements of aggravated battery causing great bodily harm beyond a
reasonable doubt. People v. Span, 2011 IL App (1st) 083037, ¶¶ 26-28.
¶ 18 A person commits battery if he knowingly without legal justification by any means causes
bodily harm to an individual. 720 ILCS 5/12-3(a) (West 2016). A person commits aggravated -6- No. 1-18-2371
battery when, in committing a battery, he knowingly causes great bodily harm or permanent
disability or disfigurement or uses a deadly weapon. 720 ILCS 5/12-3.05(a)(1), (f)(1) (West 2016).
Defendant argues that we should vacate his conviction for aggravated battery causing great bodily
harm, and reduce the conviction to simple battery, because the State only proved that he inflicted
bodily harm on the victim, not great bodily harm.
¶ 19 In addressing defendant’s argument, we must determine the meaning of “bodily harm” as
required to sustain a simple battery conviction, and “great bodily harm” as required to sustain an
aggravated battery conviction. Several cases are informative.
¶ 20 In People v. Mays, 91 Ill. 2d 251 (1982), our supreme court was considering defendant’s
rape conviction. The issue on appeal was whether the trial court erred by refusing to give an
instruction for battery as a lesser included offense of rape. Id. at 254-55. The supreme court noted
that there were two types of battery, battery causing bodily harm and battery by insulting or
provoking conduct. Id. at 256. In differentiating the two types of batteries, the supreme court
stated:
“Although it may be difficult to pinpoint exactly what constitutes bodily harm for the
purposes of the statute, some sort of physical pain or damage to the body, like lacerations,
bruises or abrasions, whether temporary or permanent, is required. Otherwise there would
be no need for the other type of battery, contact of an insulting or provoking nature.”
¶ 21 In People v. Figures, 216 Ill. App. 3d 398 (1991), defendant was convicted of armed
violence predicated on aggravated battery causing great bodily harm. Id. at 399. The evidence
established that the victim was shot at by defendant. The shot pierced his shoe but did not penetrate
his skin. Id. at 402. A witness saw the victim limping after the shot, but no one saw any blood on
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his shoe. Id. Although the victim was treated at a hospital, his injury only required “very little
attention”:
“[t]hey put a little iodine on my foot. At first they cut the little blood clot open, and then
they put iodine on there and patched it up.” Id.
¶ 22 We held that the injury clearly rose to the level of bodily harm as defined in Mays for
purposes of a simple battery, but that it did not rise to the level of great bodily harm for purposes
of aggravated battery. Id. We noted:
“Because great bodily harm requires an injury of a graver and more serious character than
an ordinary battery, simple logic dictates that the injury must be more severe than that set
out in the Mays definition. The word ‘great’ must be given effect in construing the
aggravated battery statute; statutes should be interpreted so that no word or phrase is
rendered superfluous or meaningless.” Id. at 401.
¶ 23 We vacated defendant’s armed violence conviction because the State had failed to prove
the predicate felony of aggravated battery. Id. at 402.
¶ 24 In In re J.A., 336 Ill. App. 3d 814 (2003), defendant was adjudicated delinquent of
aggravated battery causing great bodily harm. Id. at 815. The evidence at trial showed that
defendant stabbed the victim with an unidentified sharp object four to five inches in length in the
back left shoulder, which the victim described as feeling like a pinch. Id. at 815, 817-18. He was
advised to get stitches, but there was no evidence as to the number of stitches recommended or the
nature and extent or size or depth of the wound and the trier of fact was not given the opportunity
to view the wound photographically or in open court. Id. at 818. On appeal, defendant contended
that the State failed to prove the element of great bodily harm beyond a reasonable doubt. Id. at
815. In analyzing defendant’s argument, we cited Figures and held that “ ‘great bodily harm’ is -8- No. 1-18-2371
more serious or grave than lacerations, bruises, or abrasions that characterize ‘bodily harm.’ ” Id.
at 817. We noted that in determining whether the State proved great bodily harm beyond a
reasonable doubt, consideration must be given to the “evidence of what injury the victim actually
received, the evidence of the nature and extent of the victim’s injury, and evidence of the treatment
required.” Id. at 818. Reviewing all the evidence in the light most favorable to the prosecution, we
concluded there was insufficient evidence that the victim suffered great bodily harm as required
by the aggravated battery statute given the lack of any testimony or photographs or in-court
demonstration of the size, depth, length, or extent of the injury. Id. We held that the State was
required to show more than evidence of a single stab wound of indeterminate size, which felt like
a pinch and for which an indeterminate number of stitches were advised by someone unnamed. Id.
at 818-19. We modified the adjudication of delinquency from aggravated battery to battery. Id. at
819.
¶ 25 In a concurring opinion, Justice Gallagher stated that the injury did not rise to great bodily
harm because “[b]efore one can truly call bodily harm ‘great,’ it should be more severe than what
one might do to a finger with a kitchen knife while cutting vegetables.” Id. at 820 (Gallagher, J.,
concurring).2
¶ 26 In People v. Cisneros, 2013 IL App (3d) 110851, the evidence at trial showed that
defendant stabbed the victim with a knife, causing lacerations to his hand, neck, shoulder, back,
and forearm. Photographs revealed “a deep gash to his hand, a long laceration to his shoulder, a
neck wound with a portion of the flesh loose from the underlying tissue, and a shallow laceration
2 Justice O’Brien issued a dissenting opinion in J.A., stating that a stab wound requiring stitches and inflicted by a sharp weapon is great bodily harm and that she would affirm defendant’s conviction for aggravated battery. Id. (O’Brien, J., dissenting). -9- No. 1-18-2371
to his forearm.” Id. ¶ 13. The victim received medical treatment, including stitches to some of the
wounds. Id. The jury viewed the victim’s scars from each of the five lacerations. Id.
¶ 27 On appeal from his conviction of aggravated battery causing great bodily harm, defendant
argued that the victim’s injuries did not qualify as great bodily harm because they were nothing
more than “superficial” lacerations. Id. ¶ 14. Defendant cited Figures and J.A., which held that
great bodily harm sufficient for aggravated battery must be something more than the injuries
defined as mere bodily harm by our supreme court in Mays for purposes of simple battery, i.e.,
they must be more than “lacerations, bruises or abrasions, whether temporary or permanent.” Id.
¶ 28 The Cisneros court found that Figures’s and J.A.’s analysis of Mays was faulty, stating:
“We reject the notion that the supreme court’s discussion in Mays is somehow
useful in distinguishing battery from aggravated battery. Clearly, the supreme court was
differentiating battery by bodily harm from battery by insulting or provoking contact.
Additionally, can any reasonable person accept the notion that the supreme court meant to
say that a victim left with ‘permanent’ ‘physical pain or damage to the body’ has not
suffered great bodily harm, but only bodily harm? Because if, as Figures posits, the Mays
court was defining simple battery, then that is what we are left with. To the contrary, the
court’s language makes it clear that it was describing all varieties of bodily harm: minor,
great and in-between. However, it did so in the context in which it found itself: discussing
whether battery is a lesser-included offense of rape. The Mays court had no reason to
discuss aggravated battery.” Id. ¶ 18.
¶ 29 Cisneros held that in the case before it, the extensive evidence of the seriousness of the
victim’s lacerations, including photographic evidence and a visual display of his numerous scars,
was sufficient to establish the great bodily harm necessary to sustain the aggravated battery -10- No. 1-18-2371
conviction even in the absence of medical testimony regarding the severity and permanency of the
lacerations. Id. ¶¶ 20-21.
¶ 30 We agree with Cisneros (and with Justice Gallagher’s concurring opinion in J.A.) that
while minor lacerations such as a small cut to a finger caused by a kitchen knife do not rise to the
level of great bodily harm, other lacerations may rise to such a level if sufficient evidence is
presented as to their severity. The present case is more similar to Cisneros than to J.A., as there
was ample evidence presented to the trier of fact regarding the size, depth, length, and extent of
the victim’s laceration showing its severity. Cousins testified that after the victim returned to the
store following the altercation with defendant, he had a “gash” on the left side of his neck “near
his veins” which was bleeding. The victim was “upset” and attempted to clean the wound himself.
After viewing the wound, Cousins determined that he needed a paramedic, so she called 911. The
parties stipulated to Sindellar’s testimony that the victim had a two-inch laceration on his neck and
was “treated by the ambulance” and taken to the hospital. The court was presented with People’s
Exhibit No. 2, a photograph of the victim’s injury, which corroborates Sindellar’s stipulated
testimony that the laceration to the victim’s neck was two inches in length, and also shows that the
wound ran below the skin and was red and bloody in the middle. Detective Schmitt testified that a
couple of days after the incident, the victim was still wearing a bandage on his neck. When the
victim took the bandage off, the stab wound was still visible.
¶ 31 The court was also presented with video of the incident, which showed that defendant
grabbed the victim’s neck while inside the store and pushed him, then shoved the victim out the
door and violently wrestled him to the ground, before lunging at his neck. Defendant admitted to
Detective Schmitt that he bit the victim and People’s Exhibit No. 7 depicts the resulting bruise on
the victim’s chest resulting from the bite. Defendant also admitted to using a three-inch -11- No. 1-18-2371
pocketknife to stab the victim in the neck. The violent nature of the action taken by defendant
against the victim is a relevant consideration when determining whether great bodily harm has
been proved. See People v. Matthews, 126 Ill. App. 3d 710 (1984) (victim suffered great bodily
harm when she was hit on the head and arms with three “full force blows” from a baseball bat);
People v. Lopez-Bonilla, 2011 IL App (2d) 100688 (victim suffered great bodily harm when he
was hit in the head with a gun and his head was repeatedly slammed into a desk drawer). In addition
to showing how defendant violently attacked the victim, the video clips also show the victim in
the store after the attack, continually holding a covering to his neck, and later being given a
different covering by emergency personnel.
¶ 32 Viewing all the testimony, photographs, and video clips in the light most favorable to the
prosecution, any rational trier of fact could have found that defendant committed a forceful and
violent attack against the victim in which he pushed, wrestled, and bit the victim in the chest and
then stabbed him in the neck with a three-inch pocketknife. The stab wound just missed the
victim’s veins but left a two-inch long, bloody “gash,” or laceration, extending below the skin,
which required treatment from paramedics and a trip to the hospital and was still evident days
later. Any rational trier of fact could have found from all this evidence that the forceful attack,
culminating in the stab wound to the neck 3, caused great bodily harm sufficient to sustain
defendant’s conviction of aggravated battery.
3 The State also argues on appeal that the bruise to the chest from the bite is evidence of great bodily harm, but we note that in the charging document, the only evidence of great bodily harm described therein was the stab to the neck; defendant was not charged with aggravated battery based on the bruise. Thus, while the bite and resulting bruise is relevant to the general forcefulness of the attack, we focus on the stab wound to the neck in determining whether the victim suffered great bodily harm. -12- No. 1-18-2371
¶ 33 Next, defendant argues that his trial counsel committed ineffective assistance by failing to
move to suppress his statements because he was arrested based only on an investigative alert. A
criminal defendant has the right to effective assistance of counsel. Strickland v. Washington, 466
U.S. 668 (1984). Under Strickland, a defendant claiming ineffective assistance must show that
counsel’s conduct “fell below an objective standard of reasonableness,” and the conduct prejudiced
defendant. Strickland, 466 U.S. at 687-88, 692. To establish the prejudice prong, defendant must
show that there is a reasonable probability that the motion to suppress would have been granted
and that the outcome of the trial would have been different had the evidence been suppressed.
People v. Bew, 228 Ill. 2d 122, 128-29 (2008). We review ineffective assistance of counsel claims
de novo. People v. Ross, 2019 IL App (1st) 162341, ¶ 26.
¶ 34 Defendant’s ineffective assistance claim raises the question whether an investigative alert
that is supported by probable cause may serve as the basis of an arrest, if the police do not obtain
a warrant issued pursuant to an affidavit. Defendant does not argue that the officers lacked probable
cause to arrest him. Defendant argues that the officers’ authority to arrest him derived entirely
from the investigative alert, that the alert was insufficient under Article I, section 6 of the Illinois
Constitution, and therefore that his counsel was ineffective for failing to file a motion to suppress.
Article I, section 6 provides:
“The people shall have the right to be secure in their persons, houses, papers and other
possessions against unreasonable searches [and] seizures ***. No warrant shall issue
without probable cause, supported by affidavit particularly describing the place to be
searched and the persons or things to be seized.” Ill. Const. 1970, art. I, § 6.
¶ 35 Defendant cites in support People v. Bass, 2019 IL App (1st) 160640, in which a divided
panel of this court ruled that the defendant’s warrantless arrest, premised on probable cause, did -13- No. 1-18-2371
not violate the fourth amendment but did violate the Illinois Constitution. Finding that the Illinois
Constitution’s search and seizure protections were not in strict lockstep with the fourth amendment
of the United States Constitution, the Bass court ruled:
“we find, with regard to the necessity of a warrant issued by a neutral magistrate, historical
precedent concludes that article I, section 6, provides greater protections than the fourth
amendment. Indeed, arrests based solely on investigative alerts, even those supported by
probable cause, are unconstitutional under the Illinois Constitution.” Id. ¶ 43.
¶ 36 Bass was decided after defendant’s trial, and therefore his counsel was not ineffective for
failing to file a motion to suppress based on a decision that had not yet been published. Even if
Bass had been published prior to defendant’s trial and counsel had filed a motion to suppress
pursuant thereto, no reasonable probability exists that the motion would have been granted, as Bass
has been explicitly rejected by a number of decisions. For example, in People v. Braswell, 2019
IL App (1st) 172810, we noted that the flaw in Bass’s reasoning is that arrests must be based on
probable cause, not warrants as the majority in Bass suggests. Id. ¶ 39. Bass’s flawed reasoning
“creates the somewhat paradoxical situation where police may arrest an individual without a
warrant and without an investigative alert if they have probable cause to do so, but that same arrest
becomes unconstitutional if police issue an investigative alert based on the same facts that gave
rise to the probable cause.” Id. This inconsistency was identified by Justice Mason in her dissent
in Bass, 2019 IL App (1st) ¶ 120 (Mason, J., concurring in part and dissenting in part) (“And I can
conceive no principled basis on which to hold that the police may arrest an individual without a
warrant and without an investigative alert as long as they have probable cause, but if they issue an
investigative alert based on the same facts giving rise to probable cause, they have run afoul of the
Illinois Constitution.”). The Braswell court adopted the view outlined by Justice Mason in her -14- No. 1-18-2371
dissent in Bass and held that where an investigative alert has a proper basis to show probable cause,
an arrest pursuant thereto does not run afoul of the Illinois Constitution. Braswell, 2019 IL App
(1st) 172810, ¶ 39. See also People v. Thornton, 2020 IL App (1st) 170753, People v. Bahena,
2020 IL App (1st) 180197 and People v. Simmons, 2020 IL App (1st) 170650 agreeing with
Braswell (and with Justice Mason’s dissent in Bass) and rejecting the majority opinion in Bass.
Given Braswell’s, Thornton’s, Bahena’s, and Simmons’s rejection of Bass, there is no reasonable
probability that a suppression motion premised on Bass would have been successful. Accordingly,
defendant’s claim of ineffective assistance fails.
¶ 37 Next, defendant contends that his sentence of nine years’ imprisonment constituted an
abuse of discretion. Under the Illinois Constitution, the trial court must impose a sentence
balancing the seriousness of the offense and 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. (quoting People v. Maldonado, 240 Ill. App. 3d 470, 485-86 (1992)). Because
the trial court is in the best position to weigh those factors, the sentence imposed will not be
reversed absent an abuse of discretion. Knox, 2014 IL App (1st) 120349, ¶ 46. The reviewing court
“must not substitute its judgment for that of the trial court merely because it 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 the purpose
of the law or manifestly disproportionate to the nature of the offense. People v. Busse, 2016 IL
App (1st) 142941, ¶ 20. -15- No. 1-18-2371
¶ 38 Defendant here was convicted of aggravated battery, a Class 3 felony for which the normal
sentencing range is 2 to 5 years. 720 ILCS 5/12-3.05(h) (West 2016); 730 ILCS 5/5-4.5-40 (West
2016). However, due to defendant’s previous conviction in the last 10 years for an offense of the
same class or greater (a Class 2 conviction for possession of a stolen motor vehicle in 2009), he
faced an extended sentencing range of 5 to 10 years. 730 ILCS 5/5-5-3.2(b)(1) (West 2016); 730
ILCS 5/5-4.5-40(a) (West 2016).
¶ 39 At the sentencing hearing, the court read the presentencing investigative report and heard
the evidence in aggravation and mitigation. In aggravation, the State argued that defendant has an
extensive criminal background including convictions for aggravated criminal sexual assault, home
invasion, armed robbery, robbery, and possession of a stolen motor vehicle. The State also noted
the violent nature of the knife attack against the victim here.
¶ 40 In mitigation, defendant argued that he has a history of depression and substance abuse,
served in the United States armed forces, volunteers at his church’s food bank, and is a caretaker
for his mother, who has cancer. In allocution, defendant apologized for his “actions” and reiterated
that his mother has cancer and that he is her only caretaker.
¶ 41 The court noted that defendant had spent “the better half” of the last 30 years in prison, so
for him to be his mother’s primary caretaker “seems a little bit impossible.” The court stated that
it had viewed the video clips of the incident and saw the “violent nature” in which defendant had
attacked the victim. The court noted defendant’s long criminal history and then stated:
“I don’t see any learning pattern here, Mr. Thompson. And what concerns me greatly is the
violent nature in which you attacked [the victim] and I do not think that five or six is
warranted. I do not think that 10 is warranted, State, as you’re asking for the maximum. I
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will sentence him to nine years Illinois Department of Corrections followed by two years
mandatory supervised release.”
¶ 42 Defendant’s nine-year sentence was within the applicable sentencing range and did not
constitute an abuse of discretion.
¶ 43 Next, defendant contends that his two-year MSR term was not authorized by statute, and
that the correct term was one year. See 730 ILCS 5/5-4.5-40(l) (West 2016) (providing for a one-
year MSR term for Class 3 felonies). The State agrees. Accordingly, pursuant to our authority
under Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967), we reduce defendant’s MSR term
to one year.
¶ 44 For all the foregoing reasons, we affirm defendant’s conviction and nine-year sentence and
reduce his MSR term to one year.
¶ 45 Affirmed as modified.
-17-