People v. Townsend

2024 IL App (5th) 190531-U

Opinion

NOTICE 2024 IL App (5th) 190531-U NOTICE Decision filed 11/19/24. The This order was filed under text of this decision may be NO. 5-19-0531 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 18-CF-259 ) TONY TOWNSEND, ) Honorable ) John J. O’Gara, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.

ORDER

¶1 Held: The defendant’s sentence is affirmed where the trial court considered all factors in aggravation and mitigation, including the mitigating factors associated with youth, did not consider inappropriate factors in aggravation, and the trial court’s discretionary determination that the defendant’s sentences should run consecutively was not an abuse of discretion.

¶2 On February 23, 2018, the defendant, Tony Townsend, was charged by information with

the offense of aggravated battery involving discharge of a firearm in violation of section 12-

3.05(e)(1) of the Criminal Code of 2012 (Code) (720 ILCS 5/12-3.05(e)(1) (West 2014)). At the

time of the offense, the defendant was 16 years old. A jury trial was held over several days in July

and August 2019. A jury convicted the defendant of aggravated battery as charged. On October

28, 2019, the defendant was sentenced to a term of 22 years’ imprisonment in the Illinois

Department of Corrections (IDOC), to run consecutive to a sentence of 10 years’ imprisonment 1 imposed in an unrelated case, St. Clair County case No. 15-CF-787, for armed robbery and

aggravated vehicular hijacking.

¶3 On direct appeal the defendant argues that (1) the trial court misapplied the juvenile

sentencing statute by considering factors attendant to the defendant’s youth and immaturity in

aggravation, not just mitigation; (2) his 22-year sentence is excessive and an abuse of discretion

where the trial court considered deterrence as a factor in aggravation, and disregarded his

rehabilitative potential; and (3) the trial court abused its discretion when it ordered his 22-year

sentence in this case run consecutively to his 10-year sentence in case No. 15-CF-787. For the

following reasons, we affirm the defendant’s sentence.

¶4 I. BACKGROUND

¶5 The State charged the defendant with one count of aggravated battery involving discharge

of a firearm by indictment filed on February 23, 2018. The indictment alleged that on June 23,

2015, in violation of section 12-3.05(e)(1) of the Code (id.), the defendant knowingly, and by

means of discharging a firearm, caused an injury to Dimitri Wilbourn in that the defendant shot

Wilbourn in the leg with a handgun. At the time of the offense, the defendant was 16 years of age.

A jury trial was conducted on several days in July and August of 2019, with the jury finding the

defendant guilty on August 9, 2019, of aggravated battery with a firearm after the State submitted

an accountability instruction. The matter was scheduled for a sentencing hearing on October 2,

2019, and an updated presentence investigation report (PSI) was ordered to be prepared.

¶6 On August 15, 2019, the State filed its notice for sentencing juvenile as adult, or in the

alternative, request for a hearing pursuant to section 5-130(1)(c)(ii) of the Juvenile Court Act of

1987 (Act) (705 ILCS 405/5-130(1)(c)(ii) (West 2014)). In its notice, the State alleged that the

underlying charge was properly filed in adult court pursuant to section 5-130(1)(a) of the Act (id.

2 § 5-130(1)(a)), which excludes from juvenile jurisdiction any minor who “at the time of an offense

was at least 16 years of age and who is charged with: *** (iii) aggravated battery with a firearm

as described in Section 12-4.2 or subdivision (e)(1) *** of Section 12-3.05 where the minor

personally discharged a firearm as defined in Section 2-15.5 of the [Code]***.” The State further

alleged that the defendant’s recorded confession clearly established that he personally discharged

a firearm, despite the jury finding the defendant guilty of aggravated battery with a jury instruction

on accountability. On October 2, 2019, the trial court heard arguments from counsel and granted

the State’s request to proceed with adult sentencing over the defendant’s objection. The sentencing

hearing was continued by agreement until October 28, 2019.

¶7 At the sentencing hearing, the trial court considered the PSI completed in this matter, as

well as the social history prepared in the defendant’s prior case No. 15-CF-787. During the

sentencing hearing, the defendant, Tanya Townsend, and Ikeisha Johnson testified. The trial court

heard arguments from counsel regarding sentencing recommendations, as well as factors in

aggravation and mitigation. The defendant gave a brief statement of allocution. The State argued

for a maximum sentence of 30 years’ imprisonment and that the trial court impose discretionary

consecutive sentencing. Defense counsel requested a minimum sentence of six years’

imprisonment be imposed and that the defendant’s sentences run concurrently.

¶8 Defense counsel acknowledged that the events of this case, along with the events charged

in case No. 15-CF-787 and a third charged case, all occurred on the same day. Defense counsel

stated that the charge involved in case No. 15-CF-787 occurred first, the charge in the instant

matter was the “middle event” of the day, and that the defendant was awaiting trial on the third

charge. The trial court and defense counsel addressed the defendant’s prior juvenile and adult

3 charges that were dismissed and the pending charges, with the trial court clarifying that it did not

consider those charges in fashioning a sentence.

¶9 The trial court continued by addressing the defendant’s youth, stating that it was aware of

the development of the brain, especially in male brains, and the frontal lobe that controls decision

making. The trial court stated that it was “acutely and, in fact, very much in tune with what do we

do with juveniles and—and that they are not the same and their actions are not the same as those

committed by a twenty-five-year-old or a thirty-five-year-old or a fifty-eight-year old.” The trial

court then stated:

“And maybe a sixteen-year-old doesn’t know better. And if they don’t know better, if a

sixteen-year-old doesn’t know that you can’t commit an armed robbery, you can’t commit

an aggravated vehicular hijacking, if a sixteen-year-old doesn’t realize that you can’t shoot

a gun at another human being or when there’s a house around or when you’re throwing

rounds in a direction of a house or a dwelling or of anywhere and that people could die, it

boggles the mind that a sixteen-year-old wouldn’t be able to figure that out.”

¶ 10 The trial court stated that it would consider each of the factors contained in section 5-4.5-

105 of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-4.5-105 (West

2014)), relating to sentencing individuals under the age of 18 at the time of the commission of the

offense. After considering the factors attendant to youth, the trial court turned its attention to the

factors in aggravation and mitigation contained in sections 5-5-3.1 and 5-5-3.2 of the Code of

Corrections (id. §§ 5-5-3.1, 5-5-3.2), stating that it had considered the arguments of counsel, the

PSI, its knowledge of the case, and everything it knew about the defendant’s character and

background. First addressing the statutory factors in mitigation, the trial court considered the

defendant’s youth as a factor in mitigation. Further, the trial court stated that it could not “conclude

4 that his criminal con—obviously can’t conclude his conduct neither caused nor threatened serious

physical harm, although it certainly threatened a lot worse physical harm than ultimately the victim

had in this case.” Accordingly, the trial court found that factor was not appropriate to consider.

¶ 11 The trial court then focused its attention on the defendant’s prior history of delinquency or

criminal activity by stating:

“To the extent that he has no history of prior delinquency or criminal activity or has

led a law abiding life for a substantial period of time before the commission of this—or

these—this crime, and the other crime he was sentenced on, I suppose there’s an argument

to be made on that. And I’ve considered it for what it’s worth. I’ve discounted somewhat

the prior criminality, and I’m again amazed that all this happens in a short period of time

with somebody who had just turned sixteen years old a few months before these events.”

Addressing the likelihood that the criminal conduct is a result of circumstances unlikely to recur,

the trial court found:

“I can’t say that the criminal conduct is a result of circumstances unlikely to recur.

I don’t have that crystal ball, number one. But I don’t see any—any evidence either way

on that. I don’t see that his character indicates that he is unlikely to commit another crime.

Quite the contrary.”

¶ 12 The trial court then stated that it did not see that the defendant would be particularly likely

to comply with the terms of probation, conceding that probation was not a possible sentence in the

case, but adding that it was not a factor in mitigation that the trial court could “safely rely upon

today.” Lastly, the trial court stated that it saw no proof that the defendant suffered from an

intellectual disability, but it would “certainly again consider the youth” as a factor in mitigation.

5 ¶ 13 The trial court then discussed the statutory factors in aggravation it considered. It agreed

with the State that deterrence was a proper factor to consider stating: “And I think people have to

be deterred and the word has to get out somehow that carrying guns around and shooting at people,

throwing rounds carries with it some very serious consequences.” The trial court also noted that

the defendant’s conduct caused or threatened serious harm.

¶ 14 The trial court then discussed discretionary consecutive sentencing. The trial court found

the circumstances of the instant matter and the events of case No. 15-CF-787 were two distinct

events that were not part of a single course of conduct during which there was no substantial

change in the nature of the criminal objective. According to the trial court, the two events were

“totally different and totally unrelated crimes” and had “nothing to do with one another.” The trial

court again noted that the sentences were not mandatorily consecutive but rather permissive,

quoting the statutory language. The trial court determined that consecutive sentences were

appropriate stating the following:

“That basis was argued by the State. That basis exists in the Court’s mind

irrespective of all the other mitigating factors that are present and all the other factors that

are clearly present when we’re dealing with sentencing a juvenile. The nature and

circumstances of this offense, the history and character of the defendant that night and

subsequently. And finally, does the public need to be protected? Based on what happened,

based on taking a gun, based on throwing rounds, based on having earlier that same

evening—or same day having committed the offenses of armed robbery and aggravated

vehicular hijacking, it is clear that the public—and that a consecutive sentence imposed on

[the defendant] is required to protect the public from further criminal conduct by him.”

6 ¶ 15 The trial court sentenced the defendant to a term of 22 years’ incarceration, to run

consecutive to the 10-year term of incarceration previously imposed in case No. 15-CF-787, with

a 3-year term of mandatory supervised release. The trial court admonished the defendant of his

appeal rights. The defendant filed his motion to reconsider sentence on November 25, 2019, which

was denied by the trial court after hearing on the same date. This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, the defendant is only challenging his sentence. The defendant argues that the

trial court’s aggregate sentence of 32 years’ incarceration was excessive, where the trial court

misapplied the juvenile sentencing factors announced in Miller v. Alabama, 567 U.S. 460 (2012),

and codified in section 5-4.5-105 of the Code of Corrections (730 ILCS 5/5-4.5-105 (West 2018)),

when sentencing him. Further, the defendant argues that the trial court abused its discretion by

imposing discretionary consecutive sentencing. The State maintains that the trial court did not

abuse its discretion in sentencing the defendant.

¶ 18 A. Whether the Trial Court’s Sentence was Excessive

¶ 19 The defendant argues that the defendant’s aggregate 32-year sentence is excessive. The

defendant’s overarching argument is that the trial court’s comments during the sentencing hearing

demonstrated a failure to comply with the requirements of section 5-4.5-105 of the Code of

Corrections (730 ILCS 5/5-4.5-105 (West 2018)). The defendant argues that the trial court

considered improper aggravating factors and failed to apply or give appropriate weight to pertinent

mitigating factors. As a result, the defendant requests that this court exercise its authority under

Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967) to reduce his sentence or, alternatively,

vacate the defendant’s 22-year sentence and grant him a new sentencing hearing that complies

with section 5-4.5-105(a). The defendant also asks that this court vacate the trial court’s order

7 requiring the sentence to run consecutive to the defendant’s 10-year sentence imposed in case No.

15-CF-787. The defendant’s specific contentions of error will be addressed individually below.

¶ 20 To the extent that the defendant is raising issues of statutory construction in making his

argument, our standard of review is de novo. People v. Smith, 2014 IL 115946, ¶ 21. Most of the

defendant’s contentions of error here, however, relate to the trial court’s application of the statutory

factors in aggravation and mitigation. An argument that the defendant would have received a lower

sentence if the court had not erred in its application of the statute and, thus, erroneously considered

statutory factors constitutes an excessive sentence argument. See People v. Johnson, 2019 IL

122956, ¶ 39. A reviewing court will not disturb a defendant’s sentence absent an abuse of

discretion by the trial court. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A sentence will be

deemed an abuse of discretion where that sentence is greatly at variance with the spirit and purpose

of the law, or manifestly disproportionate to the nature of the offense. Id.

¶ 21 The defendant was charged and sentenced for the offense of aggravated battery with a

firearm, which is a Class X felony with a sentencing range from 6 to 30 years’ imprisonment. 730

ILCS 5/5-4.5-25(a) (West 2014). The trial court sentenced the defendant to 22 years’ imprisonment

and found, pursuant to section 5-8-4(c)(1) of the Code of Corrections (id. § 5-8-4(c)(1)), that a

consecutive term of imprisonment was necessary to protect the public, resulting in an aggregate

sentence of 32 years’ imprisonment in IDOC.

¶ 22 The Illinois Constitution mandates “[a]ll penalties shall be determined both according to

the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11. When sentencing a defendant, the trial court must consider several

statutory mitigating and aggravating factors. See 730 ILCS 5/5-5.3.1, 5-5-3.2 (West 2018). In

Miller, 567 U.S. at 479, the United States Supreme Court discussed the proposition that young

8 adults are likely less criminally culpable than older adults due to their underdeveloped sense of

responsibility, which leads to recklessness, impulsiveness, and susceptibility to outside influences.

Id. at 471. Miller emphasized “that the distinctive attributes of youth diminish the penological

justifications for imposing the harshest sentences on juvenile offenders, even when they commit

terrible crimes.” Id. at 472. Illinois codified the mitigating factors of youth in section 5-4.5-105 of

the Code of Corrections (730 ILCS 5/5-4.5-105 (West 2018)), which lists additional mitigating

factors the trial court must consider when sentencing an individual who was under the age of 18

at the time they committed the offense. See People v. Merriweather, 2022 IL App (4th) 210498,

¶ 31. The additional factors the trial court is to consider in mitigation based on the defendant’s

youth include:

“(1) the person’s age, impetuosity, and level of maturity at the time of the offense,

including the ability to consider risks and consequences of behavior, and the presence of

cognitive or developmental disability, or both, if any;

(2) whether the person was subjected to outside pressure, including peer pressure,

familial pressure, or negative influences;

(3) the person’s family, home environment, educational and social background,

including any history of parental neglect, physical abuse, or other childhood trauma;

(4) the person’s potential for rehabilitation or evidence of rehabilitation, or both;

(5) the circumstances of the offense;

(6) the person’s degree of participation and specific role in the offense, including

the level of planning by the defendant before the offense;

(7) whether the person was able to meaningfully participate in his or her defense;

(8) the person’s prior juvenile or criminal history; and

9 (9) any other information the court finds relevant and reliable, including an

expression of remorse, if appropriate. However, if the person, on advice of counsel chooses

not to make a statement, the court shall not consider a lack of an expression of remorse as

an aggravating factor.” 730 ILCS 5/5-4.5-105(a) (West 2018).

¶ 23 There is a strong presumption that the trial court based its sentencing determination on

proper legal reasoning, and thus, we review the trial court’s sentencing decision with deference.

People v. Bowman, 357 Ill. App. 3d 290, 202-04 (2005). The trial court is not required to expressly

indicate its consideration of all mitigating factors and what weight each factor should be assigned

when crafting a sentence (People v. Kyse, 220 Ill. App. 3d 971, 975 (1991)), and we presume the

trial court considered all mitigating factors absent some affirmative indication to the contrary other

than the sentence itself. People v. Halerewicz, 2013 IL App (4th) 120388, ¶ 43. Not all mitigating

factors apply to every case. Merriweather, 2022 IL App (4th) 210498, ¶ 31. When determining

whether the trial court based the sentence on proper aggravating and mitigating factors, the

reviewing court should consider the record as a whole, rather than focusing on a few words or

statements by the trial court. People v. Dowding, 388 Ill. App. 3d 936, 943 (2009). The burden is

on the defendant to affirmatively establish that the sentence was based on improper considerations.

Id. (citing People v. Conley, 118 Ill. App. 3d 122, 133 (1983)).

¶ 24 At the outset, we recognize that the trial court explicitly addressed all nine Miller factors

during the sentencing hearing. Prior to addressing each of the Miller factors individually, the trial

court discussed the mitigating factors of youth and their logical underpinnings at length. The trial

court specifically addressed its awareness of brain development, and its education in early

childhood development and its long-term effects on the same. It evinced awareness of studies

indicating that the adolescent brain does not completely form until the mid-twenties in some cases.

10 Further, it discussed the development of the frontal lobe, and how its underdevelopment in youth

can contribute to criminality. The trial court specifically stated that juveniles and their actions are

not the same as the actions of older individuals, and that “maybe a sixteen-year-old doesn’t know

better.” The trial court acknowledged that the defendant, who was 16 years old at the time of the

offense, should be sentenced differently than an adult, and affirmed its intent to do so. As such,

many of the comments challenged by the defendant, in greater context, reflect that the trial court

fully understood that a juvenile mind is different from that of an adult, but simply found that the

certain circumstances in this case tempered against the mitigating nature of the defendant’s

juvenile status. We turn now to the defendant’s arguments aimed at the trial court’s consideration

of each of the section 5-4.5-105(a) factors (730 ILCS 5/5-4.5-105(a) (West 2018)).

¶ 25 1. Age, Impetuosity, and Level of Maturity

¶ 26 Concerning the trial court’s application of the first sentencing factor applicable to juvenile

offenders, the defendant takes issue with the trial court’s comments when considering the

defendant’s age, impetuosity, and level of maturity at the time of the offense. This factor includes

the ability of the defendant to consider risks and consequences of behavior as well as the presence

of any cognitive or developmental disability. The defendant argues that the trial court’s comments

that “there is a certain amount of that, but I haven’t really seen a whole lot here to suggest to me

that that is something that I can rely on to a great degree,” indicated that the trial court—at best—

gave the factor minimal weight. Further, the defendant argues that when the trial court stated that

the defendant knew that “you can’t shoot a gun at another human being” but “whether he had the

impulse to control or stop it is another matter,” coupled with its comment that “I haven’t really

seen a whole lot” with respect to the factor indicates that the trial court failed to consider the

11 evidence as mitigating. Finally, the defendant argues that the trial court failed to consider the

defendant’s evolving maturity, which he argues was clearly mitigating.

¶ 27 It is clear, when considering the record as a whole, that in considering this factor the trial

court found some but not “a whole lot” of evidence that it would consider mitigating regarding the

defendant. The trial court found that the defendant knew that a person cannot shoot a gun at another

human being, or in a residential neighborhood, and that people could die based on such an action.

The trial court acknowledged that the defendant may have had poor impulse control. The trial court

acknowledged that the fact that the defendant was a 16-year-old high school freshman would “raise

normally a red flag,” however, it did not “see any evidence of the cognitive developments other

than what is normally present.” It is clear from its comments during sentencing that the trial court

believed that this defendant, despite his age, knew that his actions were wrong, did not suffer from

cognitive impairment, and may have acted impulsively on the date in question due in some part to

his age, and considered the same in fashioning its sentence. While the trial court did not specifically

acknowledge the defendant’s maturation during his time incarcerated awaiting trial, the defendant

does not point to any evidence of record that the trial court failed to consider the evidence presented

by the defendant’s witness, Ikeisha Johnson.

¶ 28 The trial court carefully considered the first factor and explained how it believed the

defendant’s circumstances applied and the reasons why it weighed the factor as it did. The fact

that the trial court afforded the factor less weight than the defendant believed it should have carried

does not constitute a failure to comply with the law, nor can we find any abuse of discretion.

¶ 29 2. Outside Pressure or Negative Influences

¶ 30 The defendant argues that the trial court performed a cursory analysis of the second factor

and failed to consider “significant mitigating evidence of negative peer pressure, and negative peer

12 and familial influences.” The defendant claims that the fact that the defendant did not know the

victim prior to shooting a gun at him, and that the victim had been “beefing” with the defendant’s

friend, makes “crystal clear that [the defendant’s] involvement in this offense was peer-related.”

¶ 31 The trial court discussed this factor, commenting that the defendant “certainly might” have

been subject to outside pressure, and continued by acknowledging that it also had evidence that

the defendant was “an accused block boss and somebody who has leadership abilities ***. So, I

don’t know about the outside pressure or peer pressure. It might even be the other way around.”

The defendant argues that these comments by the trial court indicate that it failed to consider

important mitigating evidence and the evidence it did consider was viewed as aggravating. Again,

we disagree.

¶ 32 The trial court’s comments evince a careful consideration of the evidence presented. The

trial court did not consider the fact that the defendant may have been influenced, to some extent,

by his peers in aggravation. The trial court acknowledged and weighed the evidence as it related

to this factor, giving weight in accordance with its findings.

¶ 33 The trial court noted the defendant had engaged in an armed robbery, aggravated vehicular

hijacking, and then an aggravated battery with discharge of a firearm all within a 24-hour block of

time. The trial court acknowledged that such a run of criminality on a single day lent itself, in some

respects, to the defense’s argument. The trial court noted that outside pressure certainly “might”

be the case. The trial court heard the evidence that the defendant did not even know the victim that

he was “throwing rounds” at prior to the offense and was in the backseat of the vehicle with his

peers, who were “beefing” with the victim. The trial court also heard evidence that the defendant

assumed a leadership role amongst his friends who looked up to him, and that he did well in school.

The trial court specifically noted that it considered the defendant’s violations of the Inmate

13 Discipline Code contained in the PSI, which indicated that the defendant received a 30-day partial

privilege loss for tampering with a wristband and “attempting to be or being a block boss,” which

the trial court weighed as demonstrative of leadership skills.

¶ 34 As to the defendant’s familial influences, the trial court heard similar conflicting evidence.

The defendant and his mother were charged as codefendants with attempting to influence a witness

in the defendant’s case. The defendant’s father had been, for the most part, uninvolved in his life

and was incarcerated at the time of the defendant’s sentencing hearing. The trial court also heard

from the defendant’s aunt, that “[h]e grew up in a good household,” knew right from wrong, and

that he always had food, clothing, and shelter. The trial court, however, still found that the

defendant was subjected to some parental neglect, and thus, considered the same in mitigation.

While the defendant argues that the trial court failed to consider the fact that the defendant had a

son and made a statement in allocution that he wished to be there for his son, there is no evidence

in the record that the trial court did not consider the defendant’s parental situation.

¶ 35 The evidence before the trial court cut both ways regarding how much outside influence

affected the defendant’s actions on the day that he engaged in a series of gun-related crimes. The

trial court’s comments in weighing this factor did not indicate that the trial court ignored mitigating

evidence. Rather, the trial court carefully weighed the evidence before it and determined that it did

not afford much weight in determining a reduction in sentence. The trial specifically commented

that the evidence lent itself to the defendant’s argument and that peer pressure likely had some

influence over the defendant’s actions that day. The fact that the trial court also weighed the

evidence of the defendant’s continued violations of the Inmate Discipline Code and leadership

skills in determining the weight of this factor does not illustrate a lack of compliance with the law

nor does it constitute an abuse of discretion.

14 ¶ 36 3. Family, Home Environment, Educational and Social Background

¶ 37 The defendant argues the trial court correctly found that this factor applied but failed to

give the factor sufficient weight. The trial court considered that the defendant’s father had not been

a meaningful part of the defendant’s life and found that the existence of some parental neglect was

apparent and mitigating to some degree. The defendant argues, however, that the trial court failed

to consider how the defendant’s unstable home environment contributed to the offense in

mitigation. The trial court heard evidence and acknowledged some parental neglect in mitigation,

but also heard evidence that the defendant had been raised in a good home and was never in need.

¶ 38 The defendant next argues that the trial court failed to consider the mitigating fact that the

defendant became a father during his incarceration and gave a statement in allocution. The trial

court specifically mentioned the defendant’s statement in allocution specifically acknowledged

that the defendant’s father was not a meaningful part of his life. The trial court referenced the

defendant’s statement in allocution again when it stated: “Any other information the court finds

relevant and reliable, including an expression of remorse, which I absolutely find here, if

appropriate. And it was.” Thus, it is clear from the record that the trial court considered these facts

in fashioning its sentence.

¶ 39 Finally, the defendant argues that the trial court failed to consider the defendant’s age,

given that at the time of the offense, he was a freshman in high school as mitigating because there

was no evidence of cognitive delays. The defendant argues that the trial court’s ability to assess

this factor was hampered by the fact that it did not have enough information, absent the

participation of the defendant’s parents and absent the provision of services while incarcerated, to

properly determine the defendant’s cognitive development.

15 ¶ 40 The trial court, however, had information before it regarding the defendant’s performance

in school until his arrest and his behavior and ability to participate in proceedings before the trial

court. The defendant did not present evidence, which could have been presented through various

means absent the live testimony of his mother, indicating that he suffered from cognitive

impairment. The trial court was in the best position to observe the defendant’s demeanor and ability

to participate in the proceedings. Further, the trial court heard from Tanya Townsend that the

defendant did well in school and that she regularly checked on his progress with the school. There

was no evidence as to whether the defendant was held back in school prior to beginning or at some

other point in his academic career. The trial court did not have evidence before it of a cognitive

delay, absent what is normally present in a juvenile, and we find no fault in the trial court’s

commentary in that regard.

¶ 41 4. Potential for Rehabilitation or Evidence of Rehabilitation

¶ 42 The defendant argues that the trial court disregarded “significant evidence” of

rehabilitation and that the substantial sentence combined with the trial court’s minimal comments

and “cursory analysis” illustrates a lack of compliance with the juvenile sentencing statute. The

trial court’s comments, however, indicate that it struggled with this factor, giving it thought and

attention. The trial court stated, “It’s tough to say here—We have a sixteen-year-old, now a twenty-

one-year-old man. I’m reading between these reports and what’s going on in jail though, that I

don’t know if that’s particularly persuasive with me here.” While the defendant argues that the

record evinces his significant rehabilitative potential, we cannot find that the trial court was

presented with significant evidence of rehabilitation, as the defendant maintains.

¶ 43 The trial court repeatedly acknowledged the defendant’s age, which lends itself to

rehabilitative potential. See Miller, 567 U.S. at 471 (children have “greater prospects for reform”

16 than adults). The trial court here, however, also contended with the fact that the defendant received

several “write-ups” while housed in juvenile detention, and after being transferred to an adult jail,

he was disciplined for battery, attempting to “change, alter, or tamper with [a] wristband,” and

“attempting to be or being a block boss.” As such, the trial court was not persuaded that the

defendant had significant rehabilitative potential. See People v. Suggs, 2020 IL App (2d) 170632,

¶ 41 (that the defendant was disciplined for numerous offenses while incarcerated awaiting trial

and sentencing supported the finding that he lacked rehabilitative potential). The trial court

considered that evidence in determining that the defendant had not been rehabilitated at the time

of sentencing, and that the same evidence reflected on the character of the defendant. We cannot

find that the trial court’s determinations reflected a lack of compliance with the law or an abuse of

discretion.

¶ 44 5. Circumstances of the Offense

¶ 45 The defendant argues that the trial court’s review of this factor was improper where it

considered the circumstances of the offense in aggravation and failed to acknowledge the transient

immaturity of youth as a contributing factor. We find that the trial court considered the

circumstances of the offense, finding the defendant’s actions to be serious, extremely dangerous,

and that they placed the victim and those in his proximity in life-threatening circumstances.

¶ 46 As previously stated, the trial court spoke at length, prior to beginning a discussion of the

specific section 5-4.5-105(a) (730 ILCS 5/5-4.5-105(a) (West 2018)) factors, about the effect of

adolescent brain development on criminality and acknowledged the necessity of considering the

characteristics of youth in sentencing. The trial court again acknowledged the necessity to treat a

child as a child in sentencing and not as a “mini-adult” prior to pronouncing its sentence. We

17 cannot find, on this record as a whole, that the trial court failed to consider the transient immaturity

of youth as a contributing factor in this case.

¶ 47 We also find no fault with the trial court’s comments indicating that the trial court found

the circumstances of the offense to be aggravating. The circumstances of the offense, along with

the defendant’s role, must be considered under the Illinois Constitution in formulating a sentence

(Ill. Const. 1970, art. I, § 11). The trial court’s consideration of the circumstances of the offense is

not limited to juvenile offenders. The trial court is not prohibited from considering the

circumstances of the offense in aggravation. Merriweather, 2022 IL App (4th) 210498, ¶¶ 34-35.

Further, nothing in section 5-4.5-105(a) prohibited the trial court from considering the

circumstances of the offense, or the defendant’s degree of participation in the offense, as

aggravating if the evidence supported that characterization. See id. ¶ 35; see also People v. Paige,

2023 IL App (1st) 220925-U, ¶ 42.

¶ 48 6. Degree of Participation, Specific Role in the Offense, and Level of Planning

¶ 49 The defendant argues that the trial court’s comments show that it improperly considered

this factor in aggravation and failed to consider the defendant’s role in the offense. The defendant

points to the trial court’s comment that the defendant’s role in the offense was direct, including a

level of planning by the defendant before the offense. The trial court further comments on the

defendant’s statement to police about “beefing” and acknowledged that while the plan was brief,

stupid, and dangerous, there was still some planning involved. The defendant argues that the State

presented no evidence of the defendant’s role in planning the offense.

¶ 50 We disagree that the trial court’s comments indicate either that it completely disregarded

this factor in mitigation or indicated that it was solely considered in aggravation. As previously

discussed, the trial court repeatedly discussed the mitigating characteristics of youth throughout

18 its pronouncement and noted specifically in discussing this factor that there was a plan, although

it was brief, and that it was impetuous. We do note that, as stated above, the defendant’s role in

the offense must be considered pursuant to our constitution (Ill. Const. 1970, art. I, § 11). While

the legislature required consideration of this factor in mitigation when sentencing young offenders,

that does not mean that the facts and circumstances will be mitigating. If the defendant were to

have a high degree of participation in the offense, been the primary actor, and planned an attack

for months in advance, such evidence would not be mitigating, and consideration of the same in

aggravation would not be inappropriate.

¶ 51 Here, there was no direct evidence that the defendant planned the shooting long before the

offense occurred, which the trial court acknowledged. We agree that the evidence that the

defendant did not know the victim prior to shooting at him, and that it was his friends in the vehicle

that had a “beef” with the victim, both indicate that without the presence of his friends, the

defendant very likely would not have shot at this victim. The defendant did, however, throughout

the day, embark on a crime spree where the defendant used a firearm to steal the vehicle that was

used in the shooting; that he was a leader amongst his peers; that he personally decided to shoot a

weapon; and, that he had fired four shots at the victim. The defendant further stated that there was

an argument later about one of the participants in the shooting only firing one shot. Thus, the trial

court could have inferred that, not only was the defendant’s participation in the offense significant,

but he was also involved in the “brief” planning and had assumed a leadership role. See In re

Gregory G., 396 Ill. App. 3d 923, 929 (2009). The defendant was a direct participant in the offense,

personally shooting a gun out the sunroof of a vehicle stolen at gunpoint earlier that day. While

the trial court acknowledged that whatever plan that occurred was brief and impetuous, it

nonetheless found the defendant’s direct involvement and role in the offense lacked significant

19 mitigating qualities. We cannot find that the trial court’s analysis indicated noncompliance with

the law or an abuse of discretion.

¶ 52 7. Ability to Meaningfully Participate in Defense

¶ 53 The defendant argues that the trial court’s comment indicates that it “may have considered

this factor as aggravating,” based on its comments relating to the defendant’s recorded telephone

calls with his mother for which both were charged with attempted witness tampering. The trial

court found that the defendant was clearly able to participate in his own defense, “[m]ore than

clearly based on what I heard in the tapes.” Further, the defendant argues that the trial court failed

to consider the mitigating fact that the defendant was not able to be in contact with either of his

parents since both were incarcerated at the time of his sentencing hearing.

¶ 54 The defendant does not explain how the inability to be in contact with his parents was

mitigating as it relates to this factor and this court will not speculate. The defendant was 20 years

old at the time of sentencing and represented by counsel. The trial court was required to consider

the defendant’s ability to assist in his own defense, and the trial court did so, acknowledging the

defendant’s apparent attempts at witness tampering. The trial court heard the defendant’s jail

telephone calls which were introduced as evidence during his trial. Such evidence could properly

be considered in fashioning the defendant’s sentence, as prior misconduct for which the defendant

was convicted is relevant to a determination of a proper sentence where it bears on the likelihood

or unlikelihood that the defendant would commit other offenses. As relevant to this factor,

however, the trial court considered the evidence as a fact to be weighed in determining the

defendant’s ability to participate in his defense. The trial court found, based partially on the

defendant’s ability to assess the evidence against him and plan and take steps to tamper with the

same to his own benefit, to be indicative of his ability to participate in his defense. The trial court’s

20 consideration of this factor does not indicate a lack of compliance with the law nor an abuse of

¶ 55 8. Prior Juvenile or Criminal History

¶ 56 The defendant argues that the trial court’s comments and the defendant’s sentence show

that the trial court weighed the defendant’s one day of criminal activity over the defendant’s 16

years of law-abiding behavior. The trial court commented that it considered the defendant’s prior

criminal history “for what it’s worth.” The trial court acknowledged that “[t]here wasn’t much

there,” adding that there was “a little bit there.” The trial court considered the defendant’s minimal

prior criminal history while also noting that the defendant had used a firearm to commit serious

crimes in a 24-hour period.

¶ 57 While this court agrees that the lack of significant criminal history is an important

mitigating factor, the trial court here clearly considered the defendant’s lack of criminal history

while acknowledging the serious offenses committed by the defendant in a short period of time. It

again considered the defendant’s lack of criminal history while reviewing the factors in

aggravation and mitigation contained in section 5-5-3.1 (730 ILCS 5/5-5-3.1 (West 2018)). The

trial court noted the defendant’s lack of prior delinquency or criminal history and that he had led

a law-abiding life for a substantial period of time before the commission of the present crimes. The

trial court commented that it had “discounted somewhat the prior criminality, and I’m again

amazed that all this happens in a short period of time with somebody who had just turned sixteen

years old a few months before these events.” The trial court specifically stated that it had

discounted the defendant’s sentence based on a lack of prior criminal history, and thus, it is clear

that it considered the lack of prior criminal history in mitigation.

21 ¶ 58 The trial court completed its oral pronouncement by endorsing the legislature’s

requirement that the additional mitigating circumstances for juvenile offenders were necessary in

sentencing an individual under the age of 18, acknowledging that “we can’t consider [the

defendant] a mini-adult. *** And I’m not looking at it that way.” Much of the defendant’s

argument regarding the section 5-4.5-105(a) factors assert that the trial court should have given

more weight to each factor. The trial court, however, addressed each factor and explained why it

found some of the factors to provide little mitigation based on the individual characteristics of the

defendant and the circumstances of this case. This court will not reweigh the evidence or substitute

our judgment for that of the trial court. A reviewing court will not find a sentence improper merely

because it would have weighed the factors differently. People v. Stacey, 193 Ill. 2d 203, 209

(2000).

¶ 59 The trial court followed the law and considered the defendant’s youth at the time of the

offense and the mitigating factors implicating the characteristics of youth and imposed a

discretionary sentence of 22 years’ imprisonment; a sentence that, while significant, was eight

years below the maximum the trial court could have imposed. The defendant committed a serious

crime, and we cannot find that the sentence varied greatly with the spirit and purpose of the law or

was manifestly disproportionate to the nature of the offense. Accordingly, we find the defendant’s

sentence is not excessive and the trial court did not abuse its discretion in sentencing the defendant.

¶ 60 B. Deterrence in Aggravation

¶ 61 The defendant next argues that his 22-year sentence is excessive where the trial court

considered deterrence as a factor in aggravation. The defendant cites People v. McKinley, 2020 IL

App (1st) 191907, ¶ 89, for the proposition that deterrence does not necessarily apply to juvenile

sentences. McKinley relied on Montgomery v. Louisiana, 577 U.S. 190, 207 (2016), which stated

22 that “deterrence is diminished in juvenile sentencing because juveniles’ recklessness, immaturity,

and impetuosity make them less likely to consider possible punishment.” (Internal quotation marks

omitted.) McKinley, 2020 IL App (1st) 191908, ¶ 89. The defendant also cites People v. Haynie,

2020 IL App (1st) 172511, for the proposition that a trial court’s focus on deterrence is incongruous

with Miller’s concerns regarding the sentencing of juvenile defendants, where the same

characteristics of immaturity, recklessness, and impetuosity in juveniles “make them less likely to

consider potential punishment.” (Internal quotation marks omitted.) Haynie, 2020 IL App (1st)

172311, ¶ 34.

¶ 62 After briefing in this matter, both parties requested to supplement their briefs with

additional authority, which this court granted. The defendant points to People v. Hill, 2022 IL App

(1st) 171739-B, which held that the trial court gave inadequate consideration to expert behavioral

testimony regarding Hill’s susceptibility to pressure from older peers and his demonstrated

rehabilitation during his 19-year incarceration. Id. ¶ 49. In doing so, the court commented:

“We find deterrence an inapt consideration after reviewing [the expert witness’s]

testimony. Because Hill’s 15-year-old behavior was based primarily on the impetuousness

of youth, not considered adult decision-making, we fail to see how a lengthy sentence

would deter similarly situated juveniles or adults capable of higher-order cost-benefit

analyses of their decisions.” Id.

The Hill court acknowledged that deterrence is a proper sentencing consideration, but found that,

based on the expert witness testimony in that case, the sentencing court placed excessive weight

on juvenile deterrence. Id. ¶¶ 47-48. To the extent that the Hill court’s commentary could be

considered as a bar to consideration of deterrence at all when sentencing a juvenile offender, we

disagree.

23 ¶ 63 The State requests this court to consider People v. Smith, 2022 IL App (4th) 200666. In

Smith, the defendant argued that the sentencing court cannot, as a matter of law, consider the

aggravating factor of deterrence in sentencing a person who committed the offense as a juvenile.

Id. ¶ 22. The Smith court held that sentencing courts could consider the deterrence of others in

imposing a discretionary sentence on a juvenile offender. Id. ¶ 30; see also People v. Diaz, 2024

IL App (1st) 22033-U, ¶ 30 (though deterrence is diminished in juvenile sentencing, it does not

follow that deterrence may not be considered at all); People v. Lee, 2023 IL App (1st) 221565-U,

¶ 45 (disagreeing that deterrence is an invalid factor which a court cannot consider when

sentencing a juvenile offender); People v. Gomez, 2023 IL App (1st) 220810-U, ¶ 31 (finding no

error in the sentencing court’s comments regarding deterrence). As we find that the law is clear

that a sentencing court is not foreclosed from considering deterrence as a factor when sentencing

a juvenile offender, the trial court’s consideration here was not an abuse of discretion.

¶ 64 The defendant argues, in the alternative, that even if the trial court can consider deterrence

as an aggravating factor in sentencing a juvenile, the trial court erred in doing so here given the

defendant’s lack of criminal history and the trial court’s disregard of substantial mitigating

evidence. We have previously addressed the trial court’s consideration of the available evidence

regarding the defendant’s criminal history and rehabilitative potential. As discussed previously,

we disagree with the defendant’s contention that the trial court improperly considered the

seriousness of the offense or the defendant’s rehabilitative potential and do not find that under the

facts present here, the trial gave excessive weight to deterrence of others. As such, we cannot find

that the trial court abused its discretion.

24 ¶ 65 C. Discretionary Consecutive Sentencing

¶ 66 Finally, the defendant argues that the trial court abused its discretion when it ordered the

defendant’s 22-year sentence to run consecutively to his 10-year sentence in case No. 15-CF-787.

The defendant argues that the record does not support the trial court’s finding that a consecutive

sentence for aggravated battery was necessary to protect the public.

¶ 67 The Code of Corrections permits the trial court to impose consecutive sentences where,

“having regard to the nature and circumstances of the offense and the history and character of the

defendant, it is the opinion of the court that consecutive sentences are required to protect the public

***, the basis for which the court shall set forth in the record.” 730 ILCS 5/5-8-4(c)(1) (West

2018). “The record must show that the trial court concluded that consecutive terms were necessary

to protect the public.” People v. Buckner, 2013 IL App (2d) 130083, ¶ 36. “Because the trial court

is in the best position to consider a defendant’s credibility, demeanor, general moral character,

mentality, social environment, and habits, the trial court’s decision to impose consecutive, rather

than concurrent, sentences for multiple crimes will not be reversed on appeal absent an abuse of

discretion.” (Internal quotation marks omitted.) People v. Couch, 387 Ill. App. 3d 437, 445 (2008).

An abuse of discretion occurs when the record does not show the trial court considered mitigating

factors, including a defendant’s potential for rehabilitation, and does not support the trial court’s

determination that consecutive sentences were necessary to protect the public. Buckner, 2013 IL

App (2d) 130083, ¶ 36 (citing People v. O’Neal, 125 Ill. 2d 291, 298-301 (1988)).

¶ 68 The defendant contends that the record does not support the finding that consecutive

sentences were necessary to protect the public where (1) his criminal history occurred over the

span of one day, and (2) his youth and rehabilitative potential were not considered fully by the trial

court. The defendant also argues that discretionary consecutive sentences “should be imposed

25 sparingly” and are “rarely appropriate,” citing People v. Gray, 121 Ill. App. 3d 867, 873 (1984),

and O’Neal, 125 Ill. 2d at 298.

¶ 69 The trial court held that “irrespective of all the other mitigating factors that are present and

all the other factors that are clearly present when we’re dealing with sentencing a juvenile,” the

nature and circumstances of the offense and the character of the defendant, both on the day that he

committed the offense and subsequently, qualified the offense for discretionary consecutive

sentencing. The trial court repeatedly expressed its opinion that the seriousness of the crime

justified a lengthy sentence. The trial court stated that the defendant engaged in “an amazingly

serious run of crimes, all in a day. And again—between an armed robbery, an aggravated vehicular

hijacking and then an aggravated battery with discharge of a firearm all in a twenty-four-hour

block of time is mind boggling.” The trial court clearly, throughout the sentencing hearing and

again at the hearing on the defendant’s motion to reconsider, considered the defendant’s youth.

Nonetheless, the trial court commented during the sentencing hearing that it did not “see that [the

defendant’s] character indicates that he is unlikely to commit another crime. Quite the contrary.”

¶ 70 In considering whether the public needed to be protected from the defendant, the trial court

stated:

“Based on what happened, based on taking a gun, based on throwing rounds, based

on having earlier that same evening—or same day having committed the offenses of armed

robbery and aggravated vehicular hijacking, it is clear that the public—and that a

consecutive sentence imposed on [the defendant] is required to protect the public from

further criminal conduct from him.”

¶ 71 The trial court specifically found consecutive sentences were necessary to protect the

public. Our review then is whether that finding was “arbitrary, fanciful, or unreasonable.” People

26 v. Parker, 2019 IL App (3d) 160455, ¶ 76. The trial court found the defendant’s potential for

rehabilitation to be poor, even considering his youth, due to his continued violations while

incarcerated and awaiting trial in combination with the circumstances of the offense. When

reviewing consecutive sentences, we must determine whether the trial court adequately considered

mitigation on the issue of the defendant’s future dangerousness to the public. Based upon our

review of the record, we find that the trial court’s determination that consecutive sentences were

necessary to protect the public was not arbitrary, fanciful, or unreasonable. Therefore, the trial

court did not abuse its discretion when finding consecutive sentences were necessary to protect the

public.

¶ 72 III. CONCLUSION

¶ 73 After having reviewed the evidence and the trial court’s detailed findings at the defendant’s

sentencing hearing, we cannot hold that the trial court’s consideration of the evidence in

aggravation and mitigation was not considered in accordance with the law. We also cannot hold

that the trial court’s consideration of the evidence was arbitrary, fanciful, or unreasonable, such

that no reasonable person would take its view. See People v. Donoho, 204 Ill. 2d 159, 182 (2003).

As such, it did not abuse its discretion. We must therefore conclude that the defendant’s sentence

was proper because it was neither greatly at variance with the spirit and purpose of the law nor

manifestly disproportionate to the nature of the offense. See People v. Martin, 2012 IL App (1st)

093506, ¶ 47.

¶ 74 For the foregoing reasons, we affirm the judgment of the trial court of St. Clair County.

¶ 75 Affirmed.