People v. Tinsley

2022 IL App (5th) 190536-U

• Court: Appellate Court of Illinois
• Decided: January 7, 2022
• Docket: 5-19-0536
• Status: Unpublished

Opinion

2022 IL App (5th) 190536-U NOTICE NOTICE Decision filed 01/07/22. The This order was filed under text of this decision may be NO. 5-19-0536 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jackson County. ) v. ) No. 14-CF-34 ) OMARI TINSLEY, ) Honorable Ralph R. Bloodworth III ) and Honorable W. Charles Grace, Defendant-Appellant. ) Judges, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Cates and Wharton concurred in the judgment.

ORDER

¶1 Held: Defendant’s sentence is affirmed where the court did not consider improper factors during sentencing; where he was not denied effective assistance of counsel and where defendant’s sentence was not excessive.

¶2 Following a guilty plea to aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1)

(West 2014)), defendant, Omari Tinsley, was sentenced to 25 years’ imprisonment. Defendant

appeals, arguing that: (1) the trial court’s consideration of his possession and use of a firearm

was double enhancement or, alternatively, his counsel was ineffective in failing to challenge the

trial court’s consideration of the weapon; (2) the trial court’s consideration of his school records

as aggravation was erroneous or, alternatively, his counsel was ineffective in failing to challenge

the admission of the records; and (3) his sentence was excessive and the trial court failed to

consider mitigating factors. For the following reasons, we disagree.

1 ¶3 I. BACKGROUND

¶4 On January 27, 2014, defendant, Omari Tinsley, who had just turned 18, and D’Anthony

Gamble got into a fight with Romello Merriweather on the grounds of the Carbondale Rebound

high school. Prior to the fight, Romello called his father, Jerome Merriweather, and told him he

was going to be “jumped” and asked his father to pick him up. Jerome showed up during the

fight and saw defendant and Gamble beating his son. Jerome pulled defendant off his son and

threw defendant into the road. Defendant came back, tried to hit Jerome, and Jerome punched

defendant four or five times in the face. Thereafter, Jerome walked away from defendant and

turned around to tell his son it was time to leave. When Jerome turned around, he saw defendant

pull a gun out of his waistband. Jerome started running to his car and defendant took chase.

Jerome fell by his car which allowed defendant to catch up, at which time defendant stood

directly over Jerome, shot him point blank right below his rib cage, and then fled the scene.

¶5 On January 28, 2014, the State charged defendant by information of: (1) attempt (first

degree murder), a Class X felony, in violation of sections 8-4(a) and 9-1(a)(2) of the Criminal

Code of 2012 (Code) (720 ILCS 5/8-4(a), 9-1(a)(2) (West 2014)); (2) aggravated battery with a

firearm, a Class X felony, in violation of section 12-3.05(e)(1) of the Code (id. § 12-3.05(e)(1));

and (3) aggravated discharge of a firearm, a Class X felony, in violation of section 24-1.2(a)(2)

of the Code (id. § 24-1.2(a)(2)). An arrest warrant was issued and, after receiving a tip, the

SWAT team captured, and the police arrested, defendant on February 13, 2014. On February 20,

2014, the grand jury indicted defendant on the charges listed in the information.

¶6 Jerome’s evidence deposition was taken on August 15, 2014, and was filed by the State

on August 22, 2014, with notice of the filing and a motion to file the deposition transcript under

seal. No objection was filed to the State’s motion, and the trial court granted the motion on

2 August 29, 2014. Jerome’s deposition addressed his own prior felony convictions, described the

events leading up to the shooting and the shooting itself. He testified that following the incident

he was able to get off the ground, get in the car, drive to the hospital five blocks away and then

he blacked out. He stated that the bullet hit one of his kidneys, his liver, his colon, and his

intestines. He now required an ostomy bag. He stated that he was on life support most of time he

was in the hospital, died six times, had seven different surgeries, and another was scheduled in

the future. He saw a doctor once a week for checkups, CT scans, and dialysis. He was in the

Carbondale hospital for two months and was later transferred because there was nothing more

they could do in Carbondale. Jerome identified defendant as the person that shot him and stated

that he was protecting his son when he pulled defendant off Romello. He disagreed that he

started the fight with defendant. He further stated that he was not hitting defendant when he was

shot; he was lying on the ground.

¶7 On September 16, 2014, defendant pled guilty to aggravated battery with a firearm, and

the remaining charges of attempted murder and aggravated discharge of a firearm were

dismissed. A presentence investigation report (PSI) was filed on November 19, 2014. The PSI

noted that defendant was 5 feet 8 inches tall and weighed 230 pounds. Defendant’s juvenile

record consisted of retail theft in 2010, for which defendant was sentenced to 18 months’

probation. On July 29, 2011, defendant was charged with aggravated battery (720 ILCS 5/12-

4(b)(8) (West 2010)), a Class 3 felony, and a revocation petition was filed. On August 16, 2011,

defendant pled guilty to aggravated battery (id. § 12-4(a)). He was sentenced to an additional 17

months’ probation and prohibited from having contact with the victim. An order discharging him

from probation was issued on April 17, 2013.

3 ¶8 The PSI stated defendant completed the eleventh grade. Defendant stated that he was at

Carbondale Rebound high school his senior year and his grades were average to above average.

Defendant further stated that during high school, he had attendance issues but did not have

disciplinary problems. The PSI noted that defendant’s school records revealed failing to average

grades and disciplinary problems ranging from standing up on the bus to gross disrespect and

gross insubordination. The school records were attached to the PSI. Defendant admitted drinking

alcohol and smoking marijuana in 2013, despite successful completion of an outpatient substance

abuse program for marijuana in 2012.

¶9 The sentencing hearing was held on February 18, 2015. Although defendant’s counsel

claimed a couple of minor discrepancies in the PSI, he declined the opportunity to put them on

the record. The State presented no witnesses or additional evidence. The defense relied on eight

letters attesting to defendant’s character and called Deon Jones as a witness. Jones stated that

when he got to the fight, Jerome was already there and was on top of defendant “beating him

bad.” He stated that Jerome was really big, probably 6 feet or 6 feet 2 inches tall, weighed

between 250 and 260 pounds, and was in his 30s. He stated that when Jerome finished the

beating, defendant was “real bloody.” He stated that when the fight between defendant and

Jerome was over, Jerome’s son came over to defendant and hit him again. Jones stated that after

Romello hit defendant, the gun was drawn.

¶ 10 On cross-examination, Jones confirmed he was friends with defendant. He further agreed

that he picked up the bullet after the incident and threw it in the ditch. He stated that he did it

“out of curiosity” and disputed that he threw it in the ditch because he did not want the police to

find evidence against his friend. He also agreed that when he first spoke to the police, he told

police that he saw nothing and was going to Burger King. He agreed he lied to the police. He

4 disputed that he lied to the police to help his friend and stated he lied because he did not want to

be involved with the incident. He further stated that he did not know that he could get into

trouble for going into a crime scene and taking the bullet. Jones agreed that he saw defendant

with the gun and saw him pull it from his waistband. He agreed that nobody else had a gun,

except defendant, and that no one was hitting defendant when he shot Jerome. Jones confirmed

the original fight was two on one: defendant and Gamble against Romello. He never saw the gun

before that day.

¶ 11 The defense stated that it was unable to find Gamble, so it had no other witnesses, and the

court provided defendant an opportunity to provide a statement on his own behalf. Defendant

apologized and expressed regret for the incident. He stated this was the biggest mistake of his

life, and he was working to change his life, control his temper, and respect others. He also asked

the court to take into consideration that “none of this would have happened if he [had not come

to] *** the school [and] *** beat me up.” He stated he was not trying to push the weight to Mr.

Merriweather. “I just need you to know I didn’t provoke everything.” He then stated, “I should

have never brought the gun on school grounds to begin with.” Defendant advised the court of the

improvements he hoped to make in himself while he was imprisoned and advised the court that

he had a six-month-old daughter who was born while he was in jail, that needed a father in her

life, and he had never held. He stated that he wanted to help younger kids in his community by

helping them finish school and avoid mistakes like he made. He asked for “one more chance to

make a big difference in society” and advised the court of his volunteer work at Addus, his

community service doing community gardening, and helping his dad with mentoring and peer

support groups for grown men. He then thanked the court for his opportunity to make the

statement.

5 ¶ 12 The State argued that, beyond the statement made by defendant in allocution, there were

no mitigating factors. The State addressed bullying at schools and argued that defendant

essentially had run of the school as evidenced by claims of gross insubordination, gross

disrespect, theft, drug possession, and physical aggression at the school. It stated defendant was

disrupting the school and society, and “above all, this person brought a gun to school.” It asked

where defendant got the gun, where he got the bullets, and where he hid the gun. The State noted

defendant’s juvenile record, which included a Class 3 felony, stating, “by law he is not entitled to

have a gun.” The State further stated, “He can’t have the bullet either. He can’t take a gun or a

bullet onto school grounds. He can’t go running through the community with a gun or a bullet.”

The State classified the event as “every parent’s nightmare.” “You go to try to pick your kid up

and there they are. You try to wrestle them away and what parent wouldn’t? And the kid’s got a

gun. He brought a gun to school.” The State said that deterrence was the first issue because

people who think it is okay to pull out or bring a gun to school will know that the community

will not bear that burden. Nor is it okay to hide the gun so it is never found and is still not found

in this case. Second, the shooting caused a profound injury which occurred on the school

grounds of District 165. The State argued that defendant’s conduct, based on his history, was

likely to recur, and recommended a 27-year sentence.

¶ 13 The defense argued that while mitigating factors one and two did not apply, factor three

did apply because defendant was “beaten up pretty severely by a man twice his age and

obviously much more experienced.” The defense also argued that, for the same reason, factors

four and five applied, stating, “Mr. Merriweather came onto the school grounds, engaged himself

in this fight and basically beat Omari very severely. The evidence is very clear about that, and I

don’t think that there is any way that this can be changed.” The court interrupted and asked,

6 “[O]n that particular point induced by someone, was not the fight started either by Mr. Tinsley or

one of his cohorts on Mr. Merriweather’s son before Mr. Merriweather was ever there?” Counsel

responded, “There are *** different version[s] of that, Judge. One side says that the other side

started it. The other side says—so we have finger pointing, which I think is typical in these

situations.” The court then asked, “At the time Mr. Merriweather was arriving on the scene, was

not his son the one that was being pummeled?” Counsel responded, “Well, we dispute. Our

argument is and our position is it was a one-on-one fight at that point.”

¶ 14 Defense counsel argued that factor seven applied, stating that although there was a

juvenile adjudication there was no extensive criminal history involved; counsel further stated that

factor eight applied in that the circumstances were unlikely to recur. Defense counsel stated

factor nine applied, arguing that the character and attitudes of defendant indicated that it was

unlikely he would commit another crime but admitted that “when you look at the PSI, that

doesn’t appear to be true,” but countered that with defendant’s statement “today and the fact that

he has learned and progressed in the year he has been in jail.” Counsel argued that factor 11

applied, to some extent, because “a long term of imprisonment would certainly be detrimental to

his daughter and deprive her of any contact with her father.” Defense counsel also addressed the

PSI and the State’s references to school incidents, stating, “none of those resulted in any criminal

convictions, it is his conduct at school that is dealt with in the school and there has been no

investigation. What it says is what it says. Whether or not there was actually a theft or whether or

not there was actually possession of marijuana, the evidence really doesn’t establish that by any

credible standards as far as the Court would be concerned.”

¶ 15 Defense counsel asked for a sentence 6 to 10 years at 85%. The defense also questioned

why there was not a victim impact statement and why Jerome was not at the sentencing hearing.

7 “You would think that he would be here given the harm which he has suffered here and that he

would be testifying to the Court as to what his current condition is. So[,] we think that’s worthy

of the Court’s consideration also. *** I am sure that’s not due to the fault of the State. It must be

due to the fact Mr. Merriweather was not cooperating with that.” Defendant’s counsel then stated

that defendant was not “a throw away” and could contribute to society. “[R]estoring of the

offender to useful citizenship is one of the primary goals of the sentencing process” and “a

sentence of six to ten years would accomplish that goal. *** It is not like Omari just shot

somebody walking down the street. He shot someone who had just beaten him up very severely

and we think that that’s one of the factors that the Court might consider in determining sentence

here, so we are asking the Court to impose a sentence in the neighborhood of six to ten years.”

¶ 16 After thanking counsel, the court stated:

“Let me start by stating that I have gone through the eight letters that have been

submitted to me today. All good people. All good letters. Four of them talking

about what a good young man and how helpful he is, several of those that had

been written by his relatives. And there is [sic] four other letters in here that

certainly say that, but they say much more and they are from individuals who

come from backgrounds, some of them backgrounds similar to Omari, who have

been bulwarks of society, in the sense that they are veterans, police officers,

college graduates. Mr. Dougherty came from Cabrini-Green, which I am very

familiar with, and he is now working for JPMorgan Chase in Chicago. Omari’s

own father is remarkable in what he has done, been a resident of the community.

But not one, not one of these eight letters mentions the fact that Omari had a gun,

that Omari had a gun that he should not have had, that he took that gun, he took

8 that gun to school grounds for what purpose? It certainly wasn’t to write his

essay. It certainly wasn’t for show and tell. He took it for one purpose and he

accomplished that purpose. The only thing Omari said about the gun, he shouldn’t

have brought the gun to school. What about owning the gun? What about being in

the possession of a gun? What can a gun do? It can kill people. You are carrying it

around in this community and you damn near accomplished a goal of having a

gun, which is killing someone. At one point, if I am correct in this case, we are

talking about having to do a deposition of the victim because he was so severely

injured, yet I hear today why isn’t he here? I don’t know why he is not here, but

we are not talking about someone who is lightly injured by your use of a gun,

young man. You damn near killed him and I don’t know that he won’t die. And

you know what? Not one of these letters and not you mentioned the victim in this

case other than the fact that he beat on you. He now is faced with whatever

medical condition he has for the rest of his life because you took a gun you

shouldn’t have had and used it. You haven’t learned a doggone thing about this. It

is you and it is the gun and you barely even mention the gun in here. Oh, woe is

me. I have learned a lot.

Take a look at your history. You have been basically anti-social. You have

shown a total lack of respect of the community, for the individual[s] in that

community and for the morays [sic], although I doubt that you know what that is,

of society. We’re a society that lives together because we abide by certain things

that are common among all of us. We have a right to live. We have a right to be

free. We have a right to enjoy life. You just impinged upon all kinds of people’s

9 rights based upon your history and you are a young man, a very young man, but

you haven’t learned anything by what society has tried to do with you. Special

schooling, special settings. Services have been given to you and on this particular

day, January 27, 2014, you haven’t learned a doggone thing. You are carrying

around a gun. You take it to a school grounds. You are beating on this man’s son

and when he comes and tries to stop the beating to his son, you pull the gun out

and you shoot him. Judge, jury and executioner. That’s the Omari that’s sitting in

front of me today, not the Omari whose [sic] out there mowing people’s lawns,

helping them with their difficulties. Not one of these people mention the Omari

who is carrying around a gun. Not one of these people is mentioning the Omari

who ran and hid from the police rather than saying, listen, I was getting beaten up.

I happen to have this gun. This guy was whipping my butt. Here’s the gun. I’m

sorry, I shouldn’t have done it. No, not at all. Not a bit of that.

No, sir, you are the problem. You are the problem because you think you are

bigger than everybody out there and if you aren’t bigger than everybody out there,

you brought along an equalizer. That equalizer was the gun. The gun is now going

to cost you 25 years in the penitentiary because that’s what I am sentencing you,

25 years in the penitentiary at 85 percent. Upon your discharge from the

penitentiary, you are going to have to serve three years of mandatory supervised

release.

This is a final order of the Court.”

¶ 17 The court concluded by advising defendant of his appeal rights as well as the requirement

to file a petition to withdraw his guilty plea. Thereafter, the State advised the trial court of

10 defendant’s 370 days’ credit, and the court requested the information be included on the

mittimus.

¶ 18 On March 10, 2015, the State filed its statement of facts, pursuant to section 5-4-1(d) of

the Unified Code of Corrections (730 ILCS 5/5-4-1(d) (West 2014)), which stated, along with

information regarding the charges and sentencing, the gun was never found and witnesses against

defendant had to be relocated or hidden before the plea because of threats. The statement

concluded by stating defendant was “extremely dangerous.”

¶ 19 The defense filed a motion for reconsideration on March 17, 2015, alleging the sentence

was excessive and claimed the trial court failed to (1) properly weigh the mitigating and

aggravating factors present in the instant case prior to the sentence; (2) read and consider the

character reference/recommendation letters submitted to the court in order to supplement the

PSI; (3) take into account the mitigating factors raised by the uncontroverted evidence that

Jerome, a much older and physically larger person than defendant, severely beat defendant prior

to defendant shooting Jerome; and (4) consider defendant’s very young age, his expressed

remorse for his actions, and his potential for rehabilitation and restoration to useful citizenship.

¶ 20 The reconsideration hearing was held on May 11, 2015. The defense stated they had very

little to add to the motion as filed, were respectfully asking the court to revisit this issue, and

requested a reduction in the sentence to 15 years. The State argued that the sentence was within

the guidelines, was not the maximum, and asked the court to deny the motion to reconsider the

sentence. The court denied defendant’s motion to reconsider the sentence.

¶ 21 Defendant appealed the decision on June 3, 2015. On December 14, 2017, this court

entered a summary Rule 23 order finding that the 604(d) certificate of compliance was defective

because none of the certificates ever stated that counsel reviewed the report of proceedings from

11 the guilty plea hearing. Although defendant also argued that his sentence was excessive, we

found it premature to address the issues since the case was going to be remanded for the 604(d)

error. The trial court’s denial of defendant’s motion to reconsider was vacated and the case was

remanded for the filing of a proper Rule 604(d) certificate, the filing of a new post plea motion,

if desired, and a hearing on any new motion.

¶ 22 An amended motion to reconsider the sentence was filed on March 19, 2018, restating the

same issues set forth in the previously filed motion, and a 604(d) certificate was filed that

included examination of the report of proceedings from the guilty plea. Defendant’s prior

counsel withdrew, and a public defender was appointed. On December 10, 2018, a second

amended motion to reconsider sentence was filed. This motion alleged that the sentence of 25

years was excessive and should be reduced because the trial court failed to (1) properly weigh

the mitigating and aggravating factors present; (2) state on the record the particular mitigating

and aggravating factors considered by the court in imposing the sentence; (3) consider

defendant’s youth and potential for rehabilitation and restoration to useful citizenship prior to

imposing the sentence; (4) read and consider the character reference/recommendation letters

submitted to supplement the PSI prior to imposing the sentence; (5) properly consider prior to

imposing the sentence the statutory factors in mitigation (specifically three, four, five, and eight)

which were raised by the uncontroverted evidence that Jerome, a much older and physically

larger person than defendant, severely beat defendant prior to defendant shooting Jerome; and

(6) properly consider defendant’s statement of allocution, including his clearly-stated remorse,

prior to imposing the sentence.

¶ 23 The case was reassigned to Judge Grace who heard arguments on the second amended

motion to reconsider on March 14, 2019. Following arguments, the trial court took the case

12 under advisement. On March 22, 2019, the trial court issued a written order denying the motion

to reconsider the sentence and the defendant timely appealed.

¶ 24 II. ANALYSIS

¶ 25 On appeal, defendant contends that (1) the trial court erroneously considered his

possession and use of the firearm as aggravation even though it was inherent in the offense of

aggravated battery with a firearm or, alternatively, that defendant’s trial counsel was ineffective

by failing to object to the trial court’s reliance on the weapon at sentencing; (2) the trial court

considered improper evidence of conduct not resulting in conviction and concluded that the

evidence, which consisted of defendant’s school records, was proper aggravation or,

alternatively, that defendant’s trial counsel was ineffective for failing to object to the admission

of the school records without requiring the State to provide witness testimony; and (3) that the

trial court issued an excessive and disproportionate 25-year sentence despite defendant’s age, the

serious provocation, and significant mitigating evidence supporting defendant’s rehabilitative

potential.

¶ 26 Improper Sentencing Factor—The Gun

¶ 27 On appeal, defendant contends that because the trial court repeatedly addressed the fact

that the defendant had a gun, the trial court impermissibly used the gun as an aggravating factor

at sentencing. The defendant concedes that the amount of weight placed on that fact was unclear

and therefore requests the sentence be vacated. The State contends the court made general

remarks about the circumstances and seriousness of the offense where, here, the defendant, a

high-school student, who should not have possessed a gun at all, took one to school and then shot

and nearly killed a man who tried to stop the man who was beating up his son. The State further

13 argues the trial court also noted that the defendant hid from police and never surrendered the

gun.

¶ 28 It is undisputed that defendant failed to object to this claim of error at the sentencing

hearing or preserve this claim of error in his motion to reconsider sentence; therefore, the error is

considered forfeited unless it is deemed plain error. People v. Hillier, 237 Ill. 2d 539, 544-45

(2010). “The plain-error doctrine is a narrow and limited exception.” Id. at 545. “To obtain relief

under this rule, a defendant must first show that a clear or obvious error occurred.” Id. “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.” Id.

¶ 29 A trial court is given broad discretion in fashioning a sentence. People v. Patterson, 217

Ill. 2d 407, 448 (2005). It must not ignore relevant mitigating factors or consider improper

aggravating factors. People v. Flores, 404 Ill. App. 3d 155, 157 (2010). When reviewing a trial

court’s sentencing decision, the reviewing court should not focus on a few words or statements

made by the court. People v. Ward, 113 Ill. 2d 516, 526 (1986). The determination of whether a

sentence was improper must be made by considering the entire record. Id. at 526-27. The

decision of whether the trial court relied on an improper factor at sentencing presents a question

of law that is reviewed de novo. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8.

¶ 30 Defendant first claims that the trial court improperly considered a factor that is inherent

in the offense itself. A single factor cannot be “used both as an element of an offense and as a

basis for imposing a harsher sentence than might otherwise have been imposed.” People v.

Guevara, 216 Ill. 2d 533, 545 (2005). However, this rule is not strictly applied, because public

policy requires a sentence to be determined in accordance with the particular circumstances of

14 the offense. People v. Thomas, 171 Ill. 2d 207, 226-27 (1996). “A trial court is not required to

refrain from any mention of sentencing factors that constitute elements of the offense.” People v.

Sauseda, 2016 IL App (1st) 140134, ¶ 15. As noted by Sauseda:

“Sentencing hearings do not occur in a vacuum and the duty to impose a fair

sentence entails an explanation of the court’s reasoning in the context of the

offenses of which a defendant has been convicted. A fair sentence is not just the

product of mechanically tallying factors in aggravation and mitigation and

calculating the result. Indeed, a sentencing hearing is likely the only opportunity a

court has to communicate its views regarding the defendant’s conduct and thus we

do not agree that a trial judge’s commentary on the nature and circumstances of a

defendant’s crimes necessarily results in improperly using elements of the offense

as factors in aggravation.” Id.

¶ 31 Here, the defendant pled guilty to aggravated battery with a firearm; the statute provides,

“A person commits aggravated battery when, in committing a battery, he or she knowingly ***

[d]ischarges a firearm *** and causes any injury to another person.” 720 ILCS 5/12-3.05(e)(1)

(West 2014). The trial court’s comments do not show the court improperly sentenced the

defendant based on defendant’s intent to discharge a firearm. Instead, the trial court’s initial

comments address the fact that none of the letters submitted on the defendant’s behalf mentioned

the fact that the defendant had a gun, that the defendant had a prior felony and should not have

had a gun, and that the defendant took the gun to school. These comments address defendant’s

juvenile history as well as the location of the offense. The court then noted the defendant’s only

statement about the gun during allocution which was that he should not have brought the gun to

school. Again, this addresses the location of the incident. The court again noted the defendant’s

15 failure to address owning and possessing a gun, which again, was a reference to defendant’s

history that precluded him from having a gun. Thereafter, the court addressed what a gun could

do and noted that the defendant “damn near accomplished a goal of a gun, which is killing

someone.” Here, we find this statement relates to the circumstances and seriousness of the

offense. Similarly, we find the trial court’s statement that “You are beating on this man’s son and

when he comes and tries to stop the beating to his son, you pull the gun out and you shoot him,”

was about the particular circumstances of the offense, which is permitted. See People v.

Robinson, 391 Ill. App. 3d 822, 842 (2009).

¶ 32 The court also noted defendant’s actions after the incident, which included the defendant

running and hiding from the police “rather than saying, listen, I was getting beaten up. I happen

to have this gun. This guy was whipping my butt. Here’s the gun. I’m sorry, I shouldn’t have

done it.” This comment is about the defendant’s character and how he handled the situation after

the incident. The court concluded by stating, “No, sir, you are the problem. You are the problem

because you think you are bigger than everybody out there and if you aren’t bigger than

everybody out there, you brought along an equalizer. That equalizer was the gun. The gun is now

going to cost you 25 years in the penitentiary because that’s what I am sentencing you, 25 years

in the penitentiary at 85 precent.” Here, we find the court’s statements address the defendant’s

character, not his use or the discharge of the gun, which is the element of the offense.

¶ 33 Based on our review of the record, the trial court only referenced the element of the

offense once and that was in context of reiterating the undisputed, and admitted, circumstances

of the offense, which is permissible. See id. We further note that, at no time, did the trial court

state that it considered defendant’s discharge of the firearm as an aggravating factor in the

defendant’s sentencing.

16 ¶ 34 Here, both in its briefing before this court, as well as its motion to cite to additional

authority, defendant admits that the extent of the trial court’s reliance on the allegedly improper

factor is unknown and contends therefore that defendant’s sentence must be vacated and

remanded, citing People v. Walker, 392 Ill. App. 3d 277, 301 (2009), People v. Conover, 84 Ill.

2d 400, 402 (1981), and more recently, in his motion to cite additional authority, People v.

McKinney, 2021 IL App (5th) 170471-U. However, we need not address those cases because we

do not find that the trial court relied on an improper aggravating factor at sentencing. Reviewing

the record as a whole and considering the court’s comments in the context they were provided,

we find that the defendant failed to satisfy his burden to affirmatively establish that his sentence

was based on improper considerations. As such, we do not find clear or obvious error.

¶ 35 Defendant also contends, in the alternative, that his constitutional rights were violated

because he is guaranteed effective assistance of counsel at his sentencing hearing. See U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. A defendant is deprived of that right when

(1) counsel’s deficient performance falls below an objective standard of reasonableness and

(2) the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88

(1984). In support, defendant claims his counsel’s performance fell below the objective standard

of reasonableness when he failed to challenge the trial court’s reliance on a factor inherent in the

offense, i.e., the defendant’s use of the gun, and failed to include this error in the motion to

reconsider.

¶ 36 However, as shown above, the trial court did not rely on the defendant’s “use” or

“discharge” of the gun at sentencing but instead focused on the circumstances of the offense,

defendant’s history and character, the seriousness of the offense, defendant’s actions following

the incident, and the location of the incident. As such, we do not find trial counsel’s failure to

17 object or failure to include double enhancement in his motion for reconsideration to fall below an

objective standard of reasonableness. Counsel is not required to present objections or motions

when they would be futile. Patterson, 217 Ill. 2d at 438.

¶ 37 Improper Sentencing Factor—The School Records

¶ 38 The defendant also claims that the trial court erroneously considered alleged misconduct

at school, found in the defendant’s school records attached to the PSI, in aggravation. He bases

this claim on the trial court’s statement that defendant was “anti-social,” had “a total lack of

respect for the community,” and “impinged on all kinds of people rights based upon [his]

history.” Defendant claims “the only explanation for these assertions” was that the trial court

improperly considered defendant’s school records in aggravation because (1) the State did not

present relevant or reliable evidence about any of the alleged conduct because it did not call any

witnesses who could be cross-examined; (2) even if taken verbatim, the alleged disciplinary

incidents did not support the conclusion that defendant was antisocial, particularly considering

his youth; and (3) the conclusion that defendant was antisocial was rebutted by the letters of

support.

¶ 39 In response, citing People v. Hibbler, 2019 IL App (4th) 160897, the State claims that

defense counsel’s acceptance of the PSI, which included defendant’s school records, was an

affirmative waiver of these arguments precluding review of this issue. In reply, defendant

contends that trial counsel’s statement at the hearing that “the evidence really doesn’t establish

[the misconduct] by any credible standards” was sufficient to preserve the issue and claims the

State’s reliance on Hibbler is misplaced.

¶ 40 We first consider whether this claim was affirmatively waived or properly preserved for

review. In Hibbler, the defendant argued that “the trial court erred by considering his rule

18 violations while in jail ‘without the benefit of witness testimony.’ ” Id. ¶ 49. The defendant

conceded the issue was not raised before the trial court and requested plain-error review. The

State claimed the argument was not only forfeited but was “waived by defendant’s affirmative

acquiescence—specifically, his failure to object to the PSI.” Id.

¶ 41 Hibbler addressed the difference between forfeiture and waiver stating, “ ‘Waiver is the

intentional relinquishment of a known right, whereas forfeiture is the failure to make a timely

assertion of a known right.’ ” Id. ¶ 51 (quoting People v. Bowens, 407 Ill. App. 3d 1094, 1098

(2011)). The court noted the difference between “mak[ing] a tactical decision not to object to

otherwise objectionable matters, which thereby waives appeal of such matters,” and a “fail[ure]

to recognize the objectionable nature of the matter at issue, which results in procedural

forfeiture.” Id. The court further noted that plain-error review only applied to forfeiture and not

to waiver. Id. (citing People v. Sebby, 2017 IL 119445, ¶ 48, and People v. Dunlap, 2013 IL App

(4th) 110892). Finally, the court referenced its 30-year-old decision that required both the State

and the defendant to report inaccuracies or disagreement with the PSI to the court or risk waiver

of any objections to the trial court’s consideration of the PSI contents. Id. ¶ 52 (citing People v.

Powell, 199 Ill. App. 3d 291, 294-95 (1990)). To avoid waiver, the Powell court suggested that

“trial courts, at the start of the sentencing hearing, ask all counsel if they received the PSI and if

they found any inaccuracies.” Id.

¶ 42 The PSI must be provided to the State and defense counsel “at least 3 days prior to the

imposition of sentence.” 730 ILCS 5/5-3-4(b)(2) (West 2014). Here, the record reveals that the

PSI was filed with the court on November 19, 2014, nearly three months before the sentencing

hearing held on February 18, 2015. When questioned, the State admitted receipt of the PSI and

19 presented a clarification that Carbondale Rebound school was “part of Carbondale Community

High School District 165.” It then stated it had no other changes or corrections.

¶ 43 The court then asked defense counsel if he had received a copy of the PSI, which counsel

stated, “We have, Judge.” When asked if the defense had any changes, additions, or corrections

to the PSI, counsel stated, “Judge, we have a couple of minor discrepancies, but nothing that

really amounts to anything. We’ll accept it as filed.” The court then asked if defense counsel

wanted to put those on the record and counsel stated, “No, sir.”

¶ 44 Despite the statements by defense counsel, which clearly revealed his knowledge of “a

couple of minor discrepancies” and the affirmative denial of the court’s opportunity to allow

counsel to put them on the record, even after counsel stated it would accept the PSI “as filed,” on

appeal defendant claims that his counsel’s later reference to the school “misconduct” stating “the

evidence really doesn’t establish that by any credible standards” was sufficient to preserve the

issue. We disagree. The defendant’s selective reliance on a portion of counsel’s statement is

unpersuasive as the statement came right after counsel stated, “What it says is what it says.”

¶ 45 At no time did counsel present a formal objection as to the accuracy of the records or

move to withdraw his prior acquiescence to submission of the PSI and school records that were

accepted “as filed.” “Simply stated, a party cannot complain of error which that party induced

the court to make or to which that party consented.” In re Detention of Swope, 213 Ill. 2d 210,

217 (2004). Accordingly, we find that trial counsel affirmatively waived any objection to the trial

court’s reliance on the PSI or any of the attached school records and decline to review this issue

under the plain-error doctrine.

¶ 46 Defendant also argues that his counsel was ineffective for failing (1) to object to the

court’s reliance on the unsworn assertions about the defendant’s school disciplinary record, (2) to

20 object when the trial court relied on the history set forth in the PSI and records at sentencing, and

(3) to include this error in the motion to reconsider. To prevail on a claim for ineffective

assistance of counsel, the defendant must show that his counsel’s performance was deficient, and

that the deficient performance was prejudicial. Strickland, 466 U.S. at 687.

¶ 47 “To establish deficiency, the defendant must overcome the strong presumption that the

challenged action or inaction might have been the product of sound trial strategy.” People v.

Richardson, 189 Ill. 2d 401, 411 (2000) (citing People v. Evans, 186 Ill. 2d 83, 93 (1999), and

People v. Hampton, 149 Ill. 2d 71, 108-09 (1992)). On appeal, defendant contends that “counsel

did not want the court to consider the contents of the school records. Yet he did not object to

their inclusion in the PSI or provide detailed argument to show that the court should not rely on

them.” Defendant further contends that “trial counsel should have addressed his contentions

regarding the disciplinary records at the outset of the hearing” to address hearsay, double

hearsay, and “other misconduct in the school records” that “did not constitute relevant and

reliable evidence.” To summarize, defendant is claiming that trial counsel should have objected

to the school records because they were hearsay and require the State to present witnesses who

could provide live testimony on the entries contained within the school records.

¶ 48 “As a general rule, trial strategy encompasses decisions such as what matters to object to

and when to object.” People v. Pecoraro, 144 Ill. 2d 1, 13 (1991). “ ‘Matters of trial strategy are

generally immune from claims of ineffective assistance of counsel.’ ” People v. Manning, 241

Ill. 2d 319, 327 (2011) (quoting People v. Smith, 195 Ill. 2d 179, 188 (2000)). Here, defendant

provides no argument addressing the general rule or the presumption enveloping trial strategy.

¶ 49 We find it especially relevant that defendant’s claim on appeal that “the record shows that

counsel did not want the court to consider the contents of the school records,” is directly

21 controverted by trial counsel’s affirmative statement that the defense would “accept [the PSI] as

filed” and his conscious decision to refrain from placing any of the “minor discrepancies” related

to the PSI on the record for the trial court’s consideration. Perhaps counsel had concerns about

what the witnesses might have stated regarding the incidents, that the witnesses might have

embellished further on the incidents regarding the alleged gross disrespect or gross

insubordination conduct at the hearing or that trial counsel was concerned that drawing further

attention to these entries would undermine any attempt to mitigate any conclusions contained

within the records. While defendant states why he believes his counsel’s performance was

deficient, he provides no argument to rebut the presumption that the challenged action was the

product of sound trial strategy. As such, we find defendant’s argument fails to rebut the

presumption that trial counsel chose not to object and require live witness testimony as part of its

trial strategy and that trial counsel’s performance was not deficient.

¶ 50 Mitigating Evidence

¶ 51 Finally, defendant contends this court should reduce his sentence or grant a new

sentencing hearing because the sentence failed to account for multiple mitigating factors,

including strong provocation, his age, acceptance of responsibility, expression of remorse, effect

on his infant daughter, character evidence, family support, and rehabilitative potential. “[T]he

imposition of sentence is a matter of judicial discretion and the standard of review to determine

whether a sentence is excessive is whether the trial court abused that discretion.” People v.

O’Neal, 125 Ill. 2d 291, 297-98 (1988). This is because the “trial court is in the best position to

consider, inter alia, credibility, demeanor, general moral character, mentality, social

environment, habits and age.” Id. at 298. “[A] reviewing court will not substitute its judgment for

22 that of the trial court merely because it would have balanced the appropriate sentencing factors

differently.” Id.

¶ 52 Provocation

¶ 53 Defendant, citing People v. Calhoun, 404 Ill. App. 3d 362, 386 (2010), contends the trial

court erred in rejecting the evidence of strong provocation merely because he used a gun.

However, in Calhoun, the facts regarding the provocation were undisputed. Id. at 364. In

Calhoun, the defendant claimed that the mitigating factor of strong provocation was inadequately

considered because “when she committed the crime she believed that the adult victim had

molested her one-year-old daughter.” Id. “Serious provocation is defined as conduct sufficient to

excite an intense passion in a reasonable person.” (Internal quotation marks omitted.) Id. at 386.

The appellate court determined the trial court viewed the matter as vigilante justice warranting

higher punishment instead of focusing on the “undeniably egregious nature of the provocation.”

Id. at 387.

¶ 54 Here, there was no dispute that when defendant pulled out his gun, Jerome started

running to his car and fell. Nor is there any dispute that defendant chased Jerome to where he

fell, and then he stood over Jerome and shot him; however, conflicting evidence regarding the

details prior to the incident, which involved the provocation, was presented to the trial court. The

testimony from the defendant’s friend, Deon Jones, was contradicted by the witness statements

in the PSI as well as Jerome’s deposition testimony. While Jones initially claimed the initial fight

was one on one, he later admitted it was two on one. Additional discrepancies included the extent

of the beating Jerome gave defendant, who walked away from the fight first, and whether

Jerome’s son hit defendant on his way to the car. As there was conflicting evidence related to the

23 events surrounding the provocation, it was within the trial court’s discretion to accept the facts it

believed and discredit the contrary facts. 1

¶ 55 Further, it was within the trial court’s discretion to consider whether defendant’s actions

were reasonable and proportional in conjunction with the provoking event. Insufficient

provocation does not require mitigation. Here, the evidence revealed that a fistfight occurred

between defendant and the victim because defendant was fighting with the victim’s son. The

evidence also revealed that following the fight between Jerome and defendant, one of the parties

walked away. Thereafter, defendant pulled out a gun, chased Jerome to the place where he fell,

stood over Jerome, and shot him.

¶ 56 “The provocation must be proportionate to the manner in which defendant retaliated.”

People v. Pugh, 187 Ill. App. 3d 860, 868 (1989). While there is no dispute that Jerome was

older, taller, and weighed more than defendant, even if the fistfight could be considered mutual

combat, “retreat by the victim negates any inference of mutual combat.” Id. at 869. Just as in

People v. Pugh, which involved shooting the unarmed victim while he attempted to flee after a

fistfight (id.), here, there was no evidence of aggression by Jerome (regardless of which party

walked away first) after the parties separated, no evidence that Jerome was armed, and no reason

for defendant to fear any further action by Jerome as he lay on the ground, where he fell near his

car, prior to the shooting. For these reasons, we find the trial court did not abuse its discretion by

failing to mitigate defendant’s sentence for “strong provocation.”

1 Defendant also argues that “Jerome’s criminal history—including serious violence—also undercuts the credibility of his version of events as noted in the factual basis,” citing to Jerome’s deposition at which time Jerome admitted his prior felony convictions. Defendant also cites to a 2018 brief filed with the Seventh Circuit in which Jerome was charged with further criminal activity in October 2015 in support of this contention. However, the defendant’s sentencing hearing was held on February 18, 2015, and the initial reconsideration hearing was held on May 11, 2015, both of which occurred prior to Jerome’s later charge. Further, the charge was not presented to the trial court at the second reconsideration held on March 2019. As such, it would have been impossible for the court to have this information to consider at the time of sentencing or during either reconsideration. Therefore, defendant’s argument on appeal is not well taken and is not considered. 24 ¶ 57 Defendant’s Age and Rehabilitative Potential

¶ 58 Defendant also claims the trial court erred by failing to give true consideration to his age,

stating “[t]he record here does not show consideration of Omari’s age and its impact on his high

rehabilitative potential,” claiming the trial court never mentioned defendant’s age and only once

remarked that defendant was “very young.” Such argument has little merit with this record.

¶ 59 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. Barnes, 2017 IL App (1st) 143902, ¶ 95. Here, the trial court called

defendant “young man” three times, stated that defendant was a “very young man” once, and

was aware that the incident occurred on the school grounds where both defendant and the

victim’s son attended school. Regarding defendant’s rehabilitative potential, the trial court noted

defendant attended special schools and received special services which failed to convince

defendant to conform with “society’s mores.” The trial court’s conclusion that rehabilitation was

unlikely was further supported by defendant’s juvenile record that revealed the defendant

committed aggravated battery while on parole from his initial juvenile incident. Based on this

record, defendant failed to meet his burden.

¶ 60 Defendant further claims error based on the holdings of Miller v. Alabama, 567 U.S. 460

(2012), Graham v. Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543 U.S. 551 (2005), as

they relate to the mitigating factor of youth. However, our supreme court noted that both it “and

the United States Supreme Court have closely limited the application of the rationale expressed

in Roper, Graham, and Miller, invoking it only in the context of the most severe of all criminal

penalties.” People v. Patterson, 2014 IL 115102, ¶ 110. In Patterson, our supreme court found

that incarceration for “36 years for a juvenile who personally committed three counts of

25 aggravated criminal sexual assault” did not fall into that category. Id. Similarly, we do not find

that Roper, Graham, and Miller apply to a prison term of 25 years (at 85%) for aggravated

battery with a firearm. Therefore, we find no abuse of discretion related to the trial court’s

consideration of defendant’s age and rehabilitative potential.

¶ 61 Remaining Factors

¶ 62 Finally, defendant contends that the trial court ignored numerous other mitigating factors,

including defendant’s guilty plea, acceptance of responsibility, expressed remorse, the numerous

letters submitted on his behalf by both his family and the community, as well as the fact that his

infant child would be without a father during his incarceration. However, the guilty plea and

recent birth of defendant’s child were addressed in the PSI. Additionally, defendant specifically

mentioned his infant child, his remorse for the incident and accepted some responsibility, except

for claiming that “none of this would have happened if he at the school had not beat me up,”

during his statement of allocution.

¶ 63 Further, the trial court specifically addressed the eight letters submitted on behalf of

defendant. Contrary to defendant’s contention, the trial court’s discourse regarding the letters

went well beyond defendant’s claim that the “trial court’s only mention of the letters was to note

that they did not mention the gun.” The trial court noted the contradictions between the good

citizen referenced in the letters and defendant’s actions on both the day of the incident, as well as

after, which included hiding from police instead of going to them and telling them what

happened and hiding the gun instead of turning the weapon over to the police. He further noted

the outstanding character of some of the authors and that the letters advised the court of

defendant “mowing people’s lawns” and “helping with their difficulties.”

26 ¶ 64 Therefore, we need not “presume” the trial court considered the letters. Here, the record

indicates that the trial court considered the mitigating evidence, but gave it less weight than other

factors, including the fact that the shooting occurred on school grounds, which the trial court was

entitled to do. We may not substitute our judgment for that of the trial court merely because we

may have weighed the factors differently. People v. Stacey, 193 Ill. 2d 203, 209 (2000).

Accordingly, we find that the trial court did not abuse its discretion in sentencing defendant and

affirm the trial court’s sentence.

¶ 65 III. CONCLUSION

¶ 66 For the foregoing reasons, we affirm defendant’s sentence.

¶ 67 Affirmed.