2021 IL App (1st) 181506-U No. 1-18-1506 Order filed September 2, 2021 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit ) Court of Cook County Plaintiff-Appellee, ) ) v. ) No. 14 CR 13552 (01) ) NICHOLAS WALKER, ) ) Honorable Allen F. Murphy, Defendant-Appellant. ) Judge, Presiding
JUSTICE MARTIN delivered the judgment of the court. Presiding Justices Gordon and Reyes concurred in the judgment.
ORDER
¶1 Held: Defendant did not meet burden to demonstrate plain error when the circuit court did not abuse its discretion by sentencing defendant to 25 years for armed robbery and 8 years for aggravated discharge of a firearm. The circuit court abused its discretion in ordering that the sentences run consecutive. Defendant was not deprived of the effective assistance of counsel when counsel did not argue that the State had failed to prove predicate convictions for armed habitual criminal in support of a motion for directed finding when the State was permitted to reopen the evidence to present proof of predicate convictions.
¶2 Nicholas Walker appeals his sentence following his convictions for armed robbery with a
firearm, aggravated discharge of a firearm, and armed habitual criminal (AHC). He also appeals No. 1-18-1506
his convictions for AHC contending his counsel was ineffective for not arguing in a motion for
directed finding that the State had failed to prove convictions for the predicate offenses. 1
¶3 I. BACKGROUND
¶4 Codefendants Nicholas Walker and Ventreal Lewis 2 were tried jointly before the bench.
As to Walker, the State proceeded on two counts of AHC, one count of armed robbery, one count
of aggravated discharge of a firearm, and one count of aggravated assault.
¶5 Allen Ross testified that he drove to his aunt’s house in Dolton, Illinois in the late evening
of June 1, 2014, to pick up an air mattress. He parked in front of the home but left the windows
down and the car running while he went inside. He spoke briefly with his aunt and her boyfriend
before deciding he should return to his car as he noticed two men walking by across the street.
Ross walked toward his car carrying the air mattress box over one shoulder and holding his cell
phone in the other hand, which he was using to talk to his girlfriend, Michele. When he reached
the sidewalk, he noticed the two men had come from across the street and were approaching him
from either side. They both repeatedly stated, “What you got?” Ross then saw the man to his right,
who he identified in court as Lewis, was holding a chrome revolver. Ross replied that he did not
have anything, only the box he was holding. Lewis reached into Ross’s pocket and pulled out his
keys. Lewis then opened the passenger door of Ross’s car. Wanting to fight him off, Ross moved
toward Lewis but the other individual, who Ross identified in court as Walker, pulled a black
revolver and said, “get back.” Walker then took the box and cell phone from Ross. Ross put his
hands up. Walker and Lewis, seeming to ascertain that Ross had nothing they found worth stealing,
started arguing with each other.
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. 2 Lewis has appealed separately. -2- No. 1-18-1506
¶6 Ross ran back inside his aunt’s home and found her calling the police. Looking outside,
Ross observed Walker and Lewis run down the street. Ross decided to follow them in his car.
Walker and Lewis ran to a blue car parked down the street. Lewis entered the driver seat and
Walker the passenger seat. They drove off and Ross pursued them. After a few turns, Ross saw
and heard 4 or 5 shots fired from the passenger side of the blue car. As the chase continued, a
marked police vehicle joined the pursuit following the blue car but ahead of Ross’s. Eventually,
the blue car pulled to the right side of the street and came to a stop. The police vehicle stopped just
behind it. Ross pulled to the left side of the street and stopped two car lengths behind. Ross saw
Walker and Lewis run from the car on foot in opposite directions.
¶7 Additional police officers arrived at the location where the cars stopped. Ross used an
officer’s phone to call Michele. Michele informed Ross she was still on the line with his phone
that Walker had taken and asked him to call her back on a different phone. A while later, Michele
arrived at the scene and handed her phone to the police. Ross walked with officers down a nearby
alley where he saw a canine officer with their dog enter a garage and then emerge with Walker.
Ross identified Walker as one of the men who robbed him. As he was being led to an ambulance,
Walker told Ross, “this was nothing, [I]’ll be out soon, look [me] up on Facebook” and gave his
name, Nick Walker. Police searched the garage and recovered Ross’s cell phone.
¶8 The next day, Ross identified Walker in both a photo array and then a lineup. While at the
police station, Walker used Michele’s phone to view Walker’s Facebook page. Upon viewing
photos on Walker’s Facebook page, Ross recognized Lewis and informed police he was the second
robber. The next day, Ross identified Lewis in a photo array. On June 18th, Ross identified Lewis
in a lineup.
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¶9 Michele Ross 3 testified she was speaking with Ross by phone on the night of June 1, 2014.
She heard Ross depart from his aunt’s house. Moments later she heard Ross say, “What’s up bro?”
and a different voice say, “What you got?” and “Run your pockets.” She then heard Ross say he
did not have anything. Another voice said, “Is this your car?” She then heard a scratching noise
for some time, followed by car doors opening and closing. That was followed by the sound of a
car struggling to start. Eventually, a running engine could be heard, and a voice said, “Drive, drive
he behind us.” Michele continued to listen and was able to make out two people talking to each
other and arguing about which way to turn. Michele heard gunfire and then what sounded like one
side of a conversation in which the speaker was telling another person they would report their car
stolen tomorrow but needed to get somewhere safe. Over a loudspeaker, she heard police direct
the green Monte Carlo (Ross’s car) to stop chasing. She heard someone say they will pull over in
a minute and run. Michele heard the scratching noise again.
¶ 10 A short time later, Michele received a call from Allen and went to the location of the cars.
She handed her phone to a police officer and explained it was on the line with Ross’s phone. Later,
she saw a person being led to an ambulance. He said to look him up on Facebook, his name was
Nick Walker, he will be out, and “this [is] what [I] do.”
¶ 11 Dolton Police Officer Patrick Carr testified he was on patrol in a marked squad car around
11:40 p.m. on June 1, 2014, when he received a call of an armed robbery in progress. As he headed
toward the reported location, he saw two cars, a blue car followed by a green car, coming in the
opposite direction at high speed. The cars turned left in front of Officer Carr. The passenger of the
blue car pointed a handgun at Officer Carr. Through a series of turns, Officer Carr was able to
maneuver behind the blue car and activated his lights and sirens. The blue car eventually stopped
3 Michele and Allen married in between the time of the robbery and the trial. -4- No. 1-18-1506
and the occupants “bailed,” running in different directions. Officer Carr stopped his vehicle and
exited. Allen Ross arrived driving the green car that had been following.
¶ 12 Officer Carr learned that Ross’s cell phone had been stolen. The police “pinged” Ross’s
phone and went with a canine unit to search its location. The canine officer went into a garage and
Walker was escorted out. An ambulance was called because Walker had been bitten on the arms
during his apprehension. Officer Carr went into the garage and found Ross’s cell phone. Officer
Carr returned to the blue Impala and searched it. There, he found two handguns underneath the
passenger’s seat, one chrome and one black.
¶ 13 Dolton Police Detective Dave Crudup testified he went to the location of the abandoned
blue Impala. Detective Crudup took custody of two revolvers from under the front passenger seat.
One was a stainless steel .38 caliber Smith & Wesson; the other a .22 caliber blue steel (black)
Regent revolver. The Regent revolver contained four live rounds and four discharge cartridge
casings. Detective Crudup explained live rounds still contain a bullet while discharge cartridge
casings remain after a bullet is fired. The Smith & Wesson revolver had four live rounds, but no
empty cartridge casings. He identified both revolvers, live rounds, and discharge casings in court.
¶ 14 The State rested after Detective Crudup’s testimony and admission of the exhibits
presented. Walker’s counsel moved for a directed finding of acquittal arguing the State had failed
to prove “the offenses” beyond a reasonable doubt. Counsel then added a specific argument
regarding the count alleging the aggravated assault of Officer Carr. The trial court found that even
in the light most favorable to the State, the evidence did not establish beyond a reasonable doubt
that Walker pointed a handgun at Officer Carr. The court granted Walker’s motion on the
aggravated assault count but denied it for all other counts.
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¶ 15 Lewis called a witness, Sergeant Allbritton of the Dolton Police Department, to testify in
his defense, but Walker did not present any witnesses or other evidence. Neither defendant elected
to testify. The court asked the State if it wished to present any evidence in rebuttal. The State
sought to admit two certified copies of Walker’s prior felony convictions. The court asked if the
State was seeking to reopen its case in chief to present those exhibits because they were not rebuttal
evidence. The State answered “yes,” and the court allowed the exhibits to be admitted in the State’s
reopened case in chief over the objections of defense counsel. The court found Walker guilty of
armed robbery with a firearm, aggravated discharge of a firearm, and two counts of AHC.
¶ 16 At sentencing, defense counsel submitted that Walker had a supportive upbringing,
graduated high school, had taken college courses, and was tutoring other inmates to obtain their
GED. Counsel described the crime as “stupidity at the greatest level,” but not reflective of who
Walker is. He further noted that no one was hurt and “it was pretty much a run-of-the-mill armed
robbery.” The court indicated it read the presentence report and noted Walker had a decent family
background. But the court observed Walker’s criminal activity was escalating. He had prior felony
convictions for driving with a suspended license, attempted residential burglary, and unlawful use
of a weapon by a felon. The court did not find the robbery “run-of-the-mill” because Walker
teamed up with Lewis and gunshots were fired as they tried to get away. The court then sentenced
Walker to 10 years in prison for armed robbery plus a mandatory enhancement of 15 years because
a firearm was used in the offense; a concurrent term of 10 years for AHC with the second AHC
count merged; and a consecutive term of 8 years for aggravated discharge of a firearm.
¶ 17 Walker filed a motion to reconsider sentence, arguing that the court had not made the
requisite finding that consecutive sentences were necessary to protect the public; nor would the
record support such a finding. The court observed that Ross’s decision to pursue Walker and Lewis
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was not smart, but the discharge of a firearm from the car during their getaway took the offense
“up a notch.” The court remarked, “Robbing somebody is one thing, gun shooting is another.” The
court then concluded “because they fired a weapon during their getaway, I believe * * * that a
consecutive sentence is needed to protect the public from further criminal conduct of these
Defendants.” Thus, the court denied the motion to reconsider sentence. This appeal followed.
¶ 18 On appeal, Walker argues the trial court abused its discretion by failing to consider his
youth and personal history in mitigation and by imposing consecutive sentences. He further claims
his trial counsel failed to render effective assistance by not moving for a directed finding on the
AHC counts at the close of the State’s case in chief.
¶ 19 II. ANALYSIS
¶ 20 A. Sentencing
¶ 21 Walker asserts two claims to argue that the trial court abused its discretion in imposing a
33-year aggregate sentence: first, that the court failed to adequately consider the mitigating effects
of his youth and personal history; and second, that the trial court improperly found consecutive
sentences were warranted. On either basis, he requests this court to reduce his sentence under our
authority provided in Supreme Court Rule 615(b)(4) or to remand for a new sentencing hearing in
the circuit court.
¶ 22 1. Mitigation and Rehabilitative Potential
¶ 23 To support his first claim, Walker submits that he was 23 years old at the time of the
offenses; he was ages 18 and 20 at the time of his prior felony offenses; the trial court did not
mention his age at sentencing; scientific research shows the parts of the brain involved in behavior
control are still developing into the mid-20s; courts have recognized that “youthful” offenders are
less culpable than adults and have greater rehabilitative potential; and the 33-year aggregate
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sentence is “only” seven years less than a de facto life-without-parole term. In addition, Walker
argues the trial court did not give proper weight to mitigating factors and his rehabilitative potential
as shown by his education, work experience, and future aspirations. Further, Walker avers his prior
offenses were not violent and he had never been sentenced to prison before. As to this offense,
Walker submits there was no finding that he personally fired a handgun or that the shots fired
resulted in injury to a person or property.
¶ 24 The State argues Walker forfeited his first sentencing claim by failing to raise the issues
with specificity in his motion to reconsider sentence. To preserve a claim of sentencing error, the
defendant must make a contemporaneous objection and raise the issue in a postsentencing motion.
People v. Hillier, 237 Ill. 2d 539, 544 (2010). Walker replies that he did raise these issues in his
motion to reconsider sentence because the motion stated that the court failed to properly consider
his background. Alternatively, Walker urges us to review the claim under the plain error doctrine.
¶ 25 We do not believe the motion to reconsider sentence raised these issues and, therefore, the
contentions were not preserved for review. In Walker’s motion to reconsider sentence, the only
assertion arguably addressing these issues stated “[t]he sentence is excessive in view of
defendant’s background and his participation in the offense.” Although personal background
naturally includes a person’s age and other details, the motion did not set forth any assertions like
those presented on appeal necessary for us to conclude the claim was presented with the requisite
specificity to preserve the issue for review. See People v. Woods, 214 Ill. 2d 455, 470 (2005)
(failure to specifically raise an issue in a posttrial motion forfeits the issue for review). Thus, the
trial court was not alerted that Walker was making this argument simply by the broad reference to
background. See People v. Jones, 2015 IL App (1st) 121016, ¶ 106, vacated on other grounds (a
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“boilerplate phrase” lacking specificity does not preserve a contention for appeal). Therefore,
Walker’s first sentencing claim is forfeited.
¶ 26 When a defendant seeks review of an unpreserved claim of error, the plain error doctrine
allows us to consider the claim when the defendant first shows a “clear or obvious error” occurred.
People v. Naylor, 229 Ill. 2d 548, 593 (2008). Upon showing a clear or obvious sentencing error,
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.”
Hillier, 237 Ill. 2d at 545, citing People v. Hall, 195 Ill.2d 1, 18 (2000). The defendant bears the
burden of persuasion under both prongs of the plain error doctrine. Naylor, 229 Ill. 2d at 593. The
first step is to discern whether any clear or obvious error occurred at sentencing at all. People v.
Eppinger, 2013 IL 114121, ¶ 19. Absent any error, there can be no plain error and the defendant’s
forfeiture will be honored. Id.
¶ 27 To assess whether an error occurred here, we observe an important distinction in Walker’s
first claim. While the claim appears under a single heading, it sets forth two distinct lines of
argument. One centers on his age alone, relies on authority regarding constitutional considerations
for juvenile offenders, and contends similar considerations should apply in sentencing young
adults because “brain development has not reliably reached adult levels of functioning until well
into the third decade of life.” The other line of argument centers on mitigating factors specific to
the offense or Walker’s individual background and were contained in his presentence report or
otherwise presented at his sentencing hearing.
¶ 28 Walker’s age-related line of argument is not specific to him as an individual and, by its
own assertions, would apply for young adults as a class. It also relies on authority rooted in the
eighth amendment to the United States Constitution and the proportionate penalties clause of the
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Illinois Constitution regarding constitutional limits on sentencing for juvenile offenders. Namely,
the eighth amendment prohibits mandatory life-without-parole for juvenile offenders (Miller v.
Alabama, 567 U.S. 460 (2012)) or a term of years that amounts to the functional equivalent,
referred to as de facto life, which is a prison term greater than 40 years (People v. Buffer, 2019 IL
122327, ¶ 41) unless the court gives special consideration to a juvenile’s youth and its attendant
circumstances (People v. Holman, 2017 IL 120655, ¶¶ 43-44; People v. Lusby, 2020 IL 124046,
¶¶ 33, 52). But the United States and Illinois Supreme Courts have only recognized these
protections for juvenile offenders, that is persons under age 18 at the time of their offense. People
v. Harris, 2018 IL 121932, ¶ 61. Plainly, Walker was not under age 18 at the time of this robbery.
Some appellate court decisions have allowed young adults to assert similar age-based claims
challenging their sentences as applied under the proportionate penalties clause. See, e.g., People
v. Minniefield, 2020 IL App (1st) 170541 (remanding for 19-year-old offender to develop the
record in postconviction proceedings to demonstrate how the evolving science of brain
development in young adults may affect his 50-year sentence). But these considerations have not
been extended to offenders who were over age 21. See People v. Rivera, 2020 IL App (1st) 171430,
¶¶ 25-27 (declining the same for offenders over 21). Thus, with Walker being age 23 at the time
of the robbery, our precedent does not support that the trial court was required to give special
consideration to his youth and its attendant circumstances in sentencing. Furthermore, even if these
constitutional protections did extend to a 23-year-old offender, Walker’s sentence is below the
40-year threshold that triggers such protections. For these reasons, the circuit court was not
required to give special consideration to Walker’s age and, therefore, did not err on this basis.
¶ 29 For the remaining part of Walker’s claim based on factors specific to him, we review the
trial court’s sentencing decision for an abuse of discretion. People v. Alexander, 239 Ill. 2d 205,
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211 (2010). A sentence is considered an abuse of discretion where it is “greatly at variance with
the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.”
(Internal quotation marks omitted.) Id. The trial court has broad discretion when imposing a
sentence, and its sentencing decisions are given great deference because the trial judge, having
observed the defendant and the proceedings, is in a better position to consider the defendant’s
credibility, demeanor, moral character, mentality, social environment, habits, and age. Id. at 212-
13.
¶ 30 Walker argues the trial court abused its discretion in sentencing because the court made no
remarks concerning factors in mitigation and failed to consider evidence of his rehabilitative
potential. He also argues mitigating factors and his rehabilitative potential render his sentence
excessive. Specifically, Walker notes there was no finding that he fired a weapon; no one was
injured; his prior offenses were not violent; he had never been incarcerated before; and substance
abuse may have contributed to his criminality. He submits his “high” rehabilitative potential is
shown by his completion of high school; taking college courses; work history; drug treatment; and
tutoring of other detainees working to obtain their GEDs.
¶ 31 We presume that the trial court considered all relevant factors and any mitigation evidence
presented. People v. Brewer, 2013 IL App (1st) 072821, ¶ 55. The trial court “has no obligation to
recite and assign value to each factor.” People v. Perkins, 408 Ill. App. 3d 752, 763 (2011). When
a defendant argues the court failed to take certain factors into consideration, the defendant “must
make an affirmative showing the sentencing court did not consider the relevant factors.” People v.
Burton, 2015 IL App (1st) 131600, ¶ 38. Apart from noting the trial court did not specifically
mention mitigating factors or his rehabilitative potential, Walker makes no showing that the court
did not consider them. Rather, he reiterates the mitigation evidence presented in his presentence
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report and at the sentencing hearing to assert his sentence is excessive. We find this insufficient to
make an affirmative showing that the trial court failed to consider these factors. As noted, the trial
court is not required to recite each factor and we presume it considered all relevant information,
including information presented in a presentence report. People v. Sauseda, 2016 IL App (1st)
140134, ¶ 20. Thus, the trial court’s lack of specific remarks is not a basis to find it abused its
discretion.
¶ 32 We next address Walker’s contention that his sentence is excessive. A sentence should
reflect the “seriousness of the offense” and “the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11; People v. Jones, 2015 IL App (1st) 142597, ¶ 38. But
the most important factor in sentencing involves the seriousness of an offense, not mitigating
evidence. People v. Harmon, 2015 IL App (1st) 122345, ¶ 123. A sentence within statutory
guidelines is presumptively valid. People v. Hauschild, 226 Ill. 2d 63, 70 (2007). Walker’s 25-year
sentence for armed robbery with a firearm falls well within the statutory range of 21 to 45 years
(6 to 30 years as a class X offense plus a mandatory 15-year enhancement). 720 ILCS 5/18-2 (West
2014); 730 ILCS 5/5-4.5-25(a) (West 2014). Likewise, his 8-year sentence for aggravated
discharge of a firearm falls within the statutory range of 4 to 15 years. 720 ILCS 5/24-1.2(b) (West
2014); 730 ILCS 5/5-4.5-30(a) (West 2014). With consecutive sentences, Walker faced up to 60
years in prison and a minimum of 25.
¶ 33 Thus, Walker’s sentences are far closer to the minimum than the maximum, especially for
armed robbery with a firearm, his most serious conviction. “The phrase ‘excessive sentence’ is
reserved for a sentence within the statutory range but without regard for a particular defendant’s
rehabilitative potential.” (Internal quotation marks omitted.) People v. McKinley, 2020 IL App
(1st) 191907, ¶ 71. As noted, we presume the trial court considered evidence of Walker’s
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rehabilitative potential and he has not made an affirmative showing to the contrary. The existence
of mitigating factors does not require the trial court to sentence close to the minimum. People v.
Flores, 404 Ill. App. 3d 155, 158 (2010). And “[e]ven if no aggravating factors are present, [a]
defendant is not necessarily entitled to a minimum sentence.” People v. Cook, 279 Ill. App. 3d
718, 727 (1995). Nor is a defendant entitled to a near minimum sentence when a mandatory
enhancement applies. People v. Harvey, 162 Ill. App. 3d 468, 475 (1987). Accordingly, we do not
find the sentences imposed here to be greatly at variance with the spirit and purpose of the law or
manifestly disproportionate to the nature of the offenses. Walker’s argument effectively asks us to
reweigh the mitigating factors and substitute our judgment for that of the trial court, which we will
not do. People v. Jones, 2015 IL App (1st) 142597, ¶ 40. Therefore, we find no abuse of discretion
and, thus, no error.
¶ 34 Finally, because we find no error occurred, Walker has not met his burden on the first prong
of plain error, and we honor the forfeiture of his first sentencing claim.
¶ 35 2. Consecutive sentences
¶ 36 We turn to Walker’s preserved claim of error regarding consecutive sentences. Walker
argues the trial court abused its discretion in finding that consecutive sentences were necessary to
protect the public from his further criminal conduct.
¶ 37 In cases where consecutive sentences are, as here, not mandatory, concurrent sentences
must be imposed, unless, considering the nature and circumstances of the offense and the history
and character of the defendant, consecutive sentences “are required to protect the public from
further criminal conduct by the defendant.” 730 ILCS 5/5-8-4(c)(1) (West 2014). Consecutive
sentences should be imposed sparingly (People v. Buckner, 2013 IL App (2d) 130083, ¶ 35), and
are reserved for exceptional cases (People v. Phagan, 2019 IL App (1st) 153031, ¶ 116). To impose
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discretionary consecutive sentences, the trial court need not use any particular words so long as
the record indicates it believed consecutive sentences were necessary to protect the public.
Buckner, ¶ 37. Nevertheless, the trial court must adequately articulate the basis for that conclusion.
Id. ¶ 35. A “boilerplate” ruling (Phagan, ¶ 125) or perfunctory references to the defendant’s
background and the trial proceedings are insufficient (People v. Dorosz, 217 Ill. App. 3d 1016,
1022-23 (1991)). We review the trial court’s imposition of consecutive sentence for an abuse of
discretion. Buckner, ¶ 36. An abuse of discretion has occurred if the record does not support the
trial court’s determination that consecutive sentences were necessary to protect the public. Id.
¶ 38 Here, the trial court did not set forth its basis for imposing consecutive sentences at
Walker’s sentencing hearing. Only after Walker raised the issue in his motion to reconsider
sentence did the trial court make an express finding that consecutive sentences were necessary to
protect the public from Walker’s future criminal conduct. The court stated its basis for that
conclusion was that the defendants fired a handgun during the getaway as Ross pursued them.
¶ 39 While the trial court made an express finding that consecutive sentences were necessary to
protect the public, we find the asserted basis insufficient for that conclusion. The finding was little
more than a “boilerplate” conclusion based on the fact a firearm was discharged. The court did not
articulate why the discharge of a firearm in this case made consecutive sentences necessary to
protect the public from Walker’s future criminal activity or provide any other basis.
¶ 40 In addition, the fact that a handgun was fired is inherent in the offense of aggravated
discharge of a firearm. Generally, “a factor implicit in the offense for which the defendant has
been convicted cannot be used as an aggravating factor in sentencing for that offense.” People v.
Phelps, 211 Ill. 2d 1, 11 (2004). This rule is not intended to apply rigidly, as sentences vary in
accordance with the circumstances of the particular case. People v. Williams, 2019 IL App (1st)
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173131, ¶ 24. For example, the degree of harm inflicted on the victim may be considered as an
aggravating factor in imposing a sentence even when serious bodily harm is implicit in the offense.
Sauseda, 2016 IL App (1st) 140134, ¶ 17. But the reasoning here is not like that. Rather, the court
relied on the mere fact that a firearm was discharged, not any circumstances that aggravated this
discharge of a firearm. “The defendant bears the burden of establishing that a sentence was based
on an improper consideration, and we will not vacate a sentence based upon an improper factor if
we can determine from the record that the weight placed on the improperly considered factor was
so insignificant that it did not lead to a greater sentence.” People v. Sherman, 2020 IL App (1st)
172162, ¶ 52. Here, the court clearly imposed a greater sentence based on an improper factor.
¶ 41 Moreover, the trial court’s finding does not reflect a “sparing” imposition of consecutive
sentences. A substantial minimum sentence already applied due to the 15-year mandatory
enhancement applied for the use of a firearm in the offense of armed robbery. The court had already
considered aggravating factors in its sentencing determination on the individual offenses. And the
discharge of a firearm was inherent in the offense for which the sentence was ordered to run
consecutive. Under these circumstances, we believe the sparing imposition of consecutive
sentences requires more exceptional rationale than the mere fact a handgun was fired. No such
basis was stated, nor is one apparent from the record.
¶ 42 For these reasons, we find the record does not support the trial court’s determination that
consecutive sentences were necessary to protect the public from Walker’s future criminal activity.
Accordingly, the trial court’s imposition of consecutive sentences was an abuse of discretion.
Under our authority provided in Supreme Court Rule 615(b)(4), we modify Walker’s consecutive
sentence for aggravated discharge of a firearm to run concurrent to his other convictions in this
case.
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¶ 43 B. Directed finding on armed habitual criminal
¶ 44 Last, Walker argues his counsel was ineffective for not moving for a directed finding on
the AHC counts at the close of the State’s case in chief. The record shows Walker’s counsel moved
for a directed finding on “the offenses” but only offered a specific argument regarding the
aggravated assault of Officer Carr. Counsel did not specifically request an acquittal on the AHC
counts based on the State’s failure to prove predicate convictions to sustain an AHC conviction.
Indeed, the State had not presented evidence of predicate convictions by that time. But the State
later requested to reopen the evidence. Over objection, the circuit court permitted the State to
present certified copies of Walker’s prior convictions.
¶ 45 To establish that a defendant was deprived of his constitutional right to the effective
assistance of counsel, the defendant must satisfy the two-pronged Strickland test: he must show
(1) counsel’s performance fell below an objective standard of reasonableness and (2) a reasonable
probability the result of the proceeding would have been different, but for counsel’s errors. People
v. Peterson, 2017 IL 120331, ¶ 79, citing Strickland v. Washington, 466 U.S. 668 (1984).
¶ 46 We believe the motion for directed finding on behalf of Walker included the AHC counts
despite the lack of a specific argument given in support. Counsel stated he was requesting acquittal
for “all offenses” and the court clearly understood the motion to include all counts. It expressly
denied the motion on all other counts after granting it with respect to the aggravated assault count.
Thus, the record rebuts that Walker’s counsel failed to move for a directed finding on the AHC
counts. At most, he failed to offer a specific argument on the AHC counts. But failure to make an
argument in support of a directed finding does not violate a defendant’s right to effective assistance
of counsel. People v. Davis, 228 Ill. App. 3d 123, 129 (1992).
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¶ 47 Even if Walker’s counsel had not moved for a directed finding on the AHC counts, we
could not conclude the decision was objectively unreasonable or prejudicial since the trial court
had discretion to reopen the evidence for the State to cure the deficiency in its case. In fact,
refraining from requesting a directed finding may be a reasonable strategy in those circumstances.
See People v. Bennett, 331 Ill. App. 3d 198, 204-05 (2002) (Kuehn, J. specially concurring). The
motion would call attention to the defect and counsel could expect most courts to be inclined to
permit additional evidence. Id. Likewise, a decision to nevertheless move for a directed finding
under these circumstances may also be reasonable strategy. People v. Berrier, 362 Ill. App. 3d
1153, 1166-68 (2006).
¶ 48 To be sure, “[t]he trial court retains discretion to grant a motion to reopen the evidence
even after a motion for directed finding, and absent an abuse of that discretion, its decision will
not be overturned on appeal.” Id. at 202. Factors to consider on a motion to reopen the proofs
include: (1) whether the failure to introduce the evidence was inadvertent; (2) any surprise or unfair
prejudice to the other party; (3) the importance of the new evidence; and (4) any cogent reasons
that would have justified denying the motion to reopen. People v. Gonzalez-Carrera, 2014 IL App
(2d) 130968, ¶ 21. In this case, the State’s failure to introduce evidence of Walker’s predicate
convictions appears to have been inadvertent and he does not contend otherwise. Nor could Walker
have been surprised or unfairly prejudiced since he does not dispute the validity of the predicate
convictions. The certified copies of conviction were important because they prove an element of
AHC. And Walker does not submit any cogent reason that would have justified denying a motion
to reopen the proofs. Thus, even if counsel had made arguments in support of a directed finding
on the AHC counts, the trial court would have likely permitted the State to present additional
evidence of the predicate convictions. Consequently, there is no reasonable probability that Walker
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would not have been convicted of the AHC counts and, therefore, he cannot establish that he was
deprived of the effective assistance of counsel.
¶ 49 III. CONCLUSION
¶ 50 Based on the foregoing, we find the trial court did not abuse its discretion in sentencing
Walker to the terms imposed for each offense, but we find the court erred in ordering the sentence
for aggravated discharge of a firearm to run consecutive. We also find that Walker was not
deprived of the effective assistance of counsel. We affirm the judgment of the circuit court but
modify the sentences to run concurrently.
¶ 51 Affirmed as modified.
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