NOTICE FILED This Order was filed under 2022 IL App (4th) 210526-U September 26, 2022 Supreme Court Rule 23 and is Carla Bender th not precedent except in the NO. 4-21-0526 4 District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County TARVELLE J. WILLIAMS, ) No. 19CF63 Defendant-Appellant. ) ) Honorable ) Jennifer M. Ascher, ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s sentence, concluding that the trial court did not improperly consider an element of defendant’s offenses in aggravation at sentencing.
¶2 In January 2019, defendant, Tarvelle J. Williams, was charged with
(1) aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2018)) and (2) being an
armed habitual criminal (id. § 24-1.7(a)). In June 2021, a jury found defendant guilty on both
counts. Later, the trial court sentenced defendant to an aggregate sentence of 23 years in prison.
¶3 Defendant appeals, arguing that the trial court erred by considering an element of
the offense as an aggravating factor when fashioning defendant’s sentence—specifically,
defendant argues the court considered “the fact that a shooting occurred” as a factor in
aggravation. We disagree and affirm defendant’s sentence.
¶4 I. BACKGROUND ¶5 A. The Charges
¶6 In January 2019, the State charged defendant with (1) aggravated battery with a
firearm and (2) being an armed habitual criminal. The charges alleged that defendant shot D.P. in
the leg with a firearm and at the time defendant possessed the firearm, he had previously been
convicted of (1) aggravated discharge of a firearm and (2) unlawful possession of a weapon by a
felon.
¶7 In April 2019, the State filed a “Notice of Intention to Seek an Extended-Term
Sentence,” alleging that D.P. was a minor under the age of 12 years at the time of the shooting.
See 730 ILCS 5/5-5-3.2(b)(3)(i) (West 2018).
¶8 B. The Trial
¶9 In June 2021, the trial court conducted defendant’s jury trial.
¶ 10 Rinodda W. testified that D.P. was her seven-month-old daughter. On January 20,
2019, Rinodda, D.P., and Rinodda’s boyfriend, Darrel P., were at their apartment visiting with
their roommates, Raneasha Smallie and Tysean Love. Smallie and Love had an argument,
prompting Smallie to leave. At that time, Rinodda, D.P., and Darrell went to their bedroom.
Rinodda was laying on the bed with D.P. and could see the front door of the apartment through
the open bedroom door. While in the bedroom, Rinodda saw a person walk by the bedroom
window, but she could not identify the individual.
¶ 11 After a few minutes, Smallie returned to the apartment and began arguing again
with Love. A few minutes after that, Rinodda heard three or four gunshots. She noted a “stinging
on [her] side” and discovered that D.P. “had a big gash between her legs.” Rinodda saw the
shooter fire from the front door and identified him as defendant. Rinodda testified that defendant
appeared to have been aiming for Love, who was standing in front of the front door to the
-2- apartment.
¶ 12 Love testified that defendant walked up to the door, demanded Love “go in the
house, the apartment,” and then fired his pistol multiple times at Love.
¶ 13 After police arrived, emergency personnel took D.P. to the hospital where she was
treated for a gunshot wound. D.P. remained hospitalized for a month and a half.
¶ 14 The jury found defendant guilty of both counts.
¶ 15 C. The Sentencing Hearing
¶ 16 In August 2021, the trial court conducted a sentencing hearing. When issuing its
sentence, the court discussed the aggravating and mitigating factors and stated the following: “I
find that the factors in aggravation are that a shooting did occur in the morning hours in an
apartment complex in a residential neighborhood. I find the factors in mitigation to be the
defendant's work history along with his family connections.”
¶ 17 The trial court sentenced defendant to consecutive prison terms of 15 years for
aggravated battery and 8 years for being an armed habitual criminal, an aggregate 23 years in
prison.
¶ 18 This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 Defendant appeals, arguing that the trial court erred by considering an element of
the offense as an aggravating factor when fashioning defendant’s sentence—specifically,
defendant argues the court considered “the fact that a shooting occurred” as a factor in
¶ 21 A. Plain Error Review and Ineffective Assistance of Counsel
¶ 22 Defendant concedes that he forfeited his claim on appeal by failing to raise it in
-3- the trial court but requests review under both prongs of the plain-error doctrine. Alternatively,
defendant argues his claim of error can be reviewed as a claim of ineffective assistance for
counsel’s failure to raise the issue at the sentencing hearing.
¶ 23 1. Plain Error
¶ 24 A defendant’s forfeited claim may be reviewed under the plain-error doctrine in
either of two instances:
“(1) when ‘a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the
defendant, regardless of the seriousness of the error,’ or (2) when ‘a clear or
obvious error occurred and that error is so serious that it affected the fairness of
the defendant’s trial and challenged the integrity of the judicial process, regardless
of the closeness of the evidence.’ ” People v. Walker, 2021 IL App (4th) 190073,
¶ 17, 188 N.E.3d 1235 (quoting People v. Sebby, 2017 IL 119445, ¶ 48, 89
N.E.3d 675).
The first question under either prong of the plain-error doctrine is whether a clear or obvious
error occurred at all. Id. Defendant bears the burden of persuasion. Id.
¶ 25 2. Ineffective Assistance
¶ 26 All defendants have the constitutional right to effective assistance of counsel. U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To prevail on an ineffective assistance
claim, a defendant must demonstrate that (1) counsel’s performance fell below an objective
standard of reasonableness and (2) counsel’s deficient performance prejudiced the defendant.
People v. Veach, 2017 IL 120649, ¶ 30, 89 N.E.3d 366 (citing Strickland v. Washington, 466
U.S. 668, 687-88 (1984)). A failure to satisfy either prong precludes a finding of ineffectiveness.
-4- People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
¶ 27 B. Consideration of an Element Inherent to the Offense
¶ 28 Defendant asserts that the trial court’s mentioning the shooting when it issued
defendant’s sentence demonstrates that the court considered the shooting—an element inherent
in defendant’s convictions—as an aggravating sentencing factor. If true, the trial court would
have committed obvious error. However, we conclude the trial court did not consider the
shooting in aggravation.
¶ 29 1. The Applicable Law
¶ 30 “[A] trial judge, when issuing a sentence, must not consider as an aggravating
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NOTICE FILED This Order was filed under 2022 IL App (4th) 210526-U September 26, 2022 Supreme Court Rule 23 and is Carla Bender th not precedent except in the NO. 4-21-0526 4 District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County TARVELLE J. WILLIAMS, ) No. 19CF63 Defendant-Appellant. ) ) Honorable ) Jennifer M. Ascher, ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s sentence, concluding that the trial court did not improperly consider an element of defendant’s offenses in aggravation at sentencing.
¶2 In January 2019, defendant, Tarvelle J. Williams, was charged with
(1) aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2018)) and (2) being an
armed habitual criminal (id. § 24-1.7(a)). In June 2021, a jury found defendant guilty on both
counts. Later, the trial court sentenced defendant to an aggregate sentence of 23 years in prison.
¶3 Defendant appeals, arguing that the trial court erred by considering an element of
the offense as an aggravating factor when fashioning defendant’s sentence—specifically,
defendant argues the court considered “the fact that a shooting occurred” as a factor in
aggravation. We disagree and affirm defendant’s sentence.
¶4 I. BACKGROUND ¶5 A. The Charges
¶6 In January 2019, the State charged defendant with (1) aggravated battery with a
firearm and (2) being an armed habitual criminal. The charges alleged that defendant shot D.P. in
the leg with a firearm and at the time defendant possessed the firearm, he had previously been
convicted of (1) aggravated discharge of a firearm and (2) unlawful possession of a weapon by a
felon.
¶7 In April 2019, the State filed a “Notice of Intention to Seek an Extended-Term
Sentence,” alleging that D.P. was a minor under the age of 12 years at the time of the shooting.
See 730 ILCS 5/5-5-3.2(b)(3)(i) (West 2018).
¶8 B. The Trial
¶9 In June 2021, the trial court conducted defendant’s jury trial.
¶ 10 Rinodda W. testified that D.P. was her seven-month-old daughter. On January 20,
2019, Rinodda, D.P., and Rinodda’s boyfriend, Darrel P., were at their apartment visiting with
their roommates, Raneasha Smallie and Tysean Love. Smallie and Love had an argument,
prompting Smallie to leave. At that time, Rinodda, D.P., and Darrell went to their bedroom.
Rinodda was laying on the bed with D.P. and could see the front door of the apartment through
the open bedroom door. While in the bedroom, Rinodda saw a person walk by the bedroom
window, but she could not identify the individual.
¶ 11 After a few minutes, Smallie returned to the apartment and began arguing again
with Love. A few minutes after that, Rinodda heard three or four gunshots. She noted a “stinging
on [her] side” and discovered that D.P. “had a big gash between her legs.” Rinodda saw the
shooter fire from the front door and identified him as defendant. Rinodda testified that defendant
appeared to have been aiming for Love, who was standing in front of the front door to the
-2- apartment.
¶ 12 Love testified that defendant walked up to the door, demanded Love “go in the
house, the apartment,” and then fired his pistol multiple times at Love.
¶ 13 After police arrived, emergency personnel took D.P. to the hospital where she was
treated for a gunshot wound. D.P. remained hospitalized for a month and a half.
¶ 14 The jury found defendant guilty of both counts.
¶ 15 C. The Sentencing Hearing
¶ 16 In August 2021, the trial court conducted a sentencing hearing. When issuing its
sentence, the court discussed the aggravating and mitigating factors and stated the following: “I
find that the factors in aggravation are that a shooting did occur in the morning hours in an
apartment complex in a residential neighborhood. I find the factors in mitigation to be the
defendant's work history along with his family connections.”
¶ 17 The trial court sentenced defendant to consecutive prison terms of 15 years for
aggravated battery and 8 years for being an armed habitual criminal, an aggregate 23 years in
prison.
¶ 18 This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 Defendant appeals, arguing that the trial court erred by considering an element of
the offense as an aggravating factor when fashioning defendant’s sentence—specifically,
defendant argues the court considered “the fact that a shooting occurred” as a factor in
¶ 21 A. Plain Error Review and Ineffective Assistance of Counsel
¶ 22 Defendant concedes that he forfeited his claim on appeal by failing to raise it in
-3- the trial court but requests review under both prongs of the plain-error doctrine. Alternatively,
defendant argues his claim of error can be reviewed as a claim of ineffective assistance for
counsel’s failure to raise the issue at the sentencing hearing.
¶ 23 1. Plain Error
¶ 24 A defendant’s forfeited claim may be reviewed under the plain-error doctrine in
either of two instances:
“(1) when ‘a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the
defendant, regardless of the seriousness of the error,’ or (2) when ‘a clear or
obvious error occurred and that error is so serious that it affected the fairness of
the defendant’s trial and challenged the integrity of the judicial process, regardless
of the closeness of the evidence.’ ” People v. Walker, 2021 IL App (4th) 190073,
¶ 17, 188 N.E.3d 1235 (quoting People v. Sebby, 2017 IL 119445, ¶ 48, 89
N.E.3d 675).
The first question under either prong of the plain-error doctrine is whether a clear or obvious
error occurred at all. Id. Defendant bears the burden of persuasion. Id.
¶ 25 2. Ineffective Assistance
¶ 26 All defendants have the constitutional right to effective assistance of counsel. U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To prevail on an ineffective assistance
claim, a defendant must demonstrate that (1) counsel’s performance fell below an objective
standard of reasonableness and (2) counsel’s deficient performance prejudiced the defendant.
People v. Veach, 2017 IL 120649, ¶ 30, 89 N.E.3d 366 (citing Strickland v. Washington, 466
U.S. 668, 687-88 (1984)). A failure to satisfy either prong precludes a finding of ineffectiveness.
-4- People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
¶ 27 B. Consideration of an Element Inherent to the Offense
¶ 28 Defendant asserts that the trial court’s mentioning the shooting when it issued
defendant’s sentence demonstrates that the court considered the shooting—an element inherent
in defendant’s convictions—as an aggravating sentencing factor. If true, the trial court would
have committed obvious error. However, we conclude the trial court did not consider the
shooting in aggravation.
¶ 29 1. The Applicable Law
¶ 30 “[A] trial judge, when issuing a sentence, must not consider as an aggravating
factor an element that is inherent in the crime for which the defendant is being sentenced.”
Brown, 2019 IL App (5th) 160329, ¶ 18. However, the trial court “need not unrealistically avoid
any mention of such inherent factors, treating them as if they did not exist.” People v. O’Toole,
226 Ill. App. 3d 974, 992, 590 N.E.2d 950 (1992). Accordingly, it cannot be error for a trial
court, when sentencing a defendant convicted of first degree murder, to mention that someone
died.
¶ 31 When a defendant alleges the trial court considered an improper factor, appellate
courts review the record as a whole because “ ‘[a]n isolated remark made in passing, even
though improper, does not necessarily require that [the] defendant be resentenced.’ ” Brown,
2019 IL App (5th) 160329, ¶ 18 (quoting People v. Fort, 229 Ill. App. 3d 336, 340, 592 N.E.2d
1205 (1992)).
¶ 32 Because the trial court is in the best position to fashion an appropriate sentence,
appellate courts will not disturb a court’s sentence absent abuse of discretion. Id.
¶ 33 2. This Case
-5- ¶ 34 A person commits aggravated battery with a firearm when he (1) knowingly
causes injury to another person by (2) discharging a firearm. 720 ILCS 5/12-3.05(e)(1) (West
2018). A person commits the offense of being an armed habitual criminal when he possesses a
firearm after having been convicted of two qualifying offenses—in this case, aggravated
discharge of a firearm, and unlawful possession of a weapon by a felon. Id. § 24-1.7(a).
¶ 35 Defendant takes issue only with the trial court’s stating, “I find that the factors in
aggravation are that a shooting did occur in the morning hours in an apartment complex in a
residential neighborhood.” (Emphasis added.) Defendant argues that by saying that a shooting
occurred, the court indicated it was considering an element of the offense in aggravation. We
disagree.
¶ 36 As an initial matter, a “shooting” is not an element of the offense of being an
armed habitual criminal. That offense requires the mere possession of a firearm, not the use of a
firearm. Accordingly, defendant’s claim fails at the threshold as to his sentence for being an
armed habitual criminal.
¶ 37 Use of the firearm, or “a shooting,” is an element of the offense of aggravated
battery with a firearm. Nonetheless, the trial court’s mere mentioning of “a shooting” in this case
did not constitute error. We emphasize that “a sentencing court need not unrealistically avoid any
mention of such inherent factors, treating them as if they did not exist.” O’Toole, 226 Ill. App. 3d
at 992. In other words, it cannot be error simply to mention that a shooting occurred when
sentencing a defendant for aggravated battery with a firearm.
¶ 38 In this case, the record is clear that the court’s mentioning of “a shooting” was
merely providing context for the aggravating factor that the shooting occurred in a residential
apartment complex. Defendant’s firing a gun in an apartment building, in the morning, when
-6- people are more likely to be at home, clearly demonstrates defendant’s utter disregard for the
safety of others. See People v. Hibbler, 2019 IL App (4th) 160897, ¶ 71, 129 N.E.3d 755
(“Anything and everything beyond the minimum conduct necessary for the defendant to be
found to have engaged in criminal behavior is entirely appropriate for a sentencing court to
consider.”). Indeed, the unintended victim of defendant’s crime was a seven-month-old infant
who was in a different room of the apartment. See id. (“The trial court in [Hibbler] recognized
the additional threat defendant’s actions caused, and its doing so was entirely appropriate.”). The
trial court correctly considered the location of the offense as the aggravating factor, not the
shooting itself.
¶ 39 Because the trial court did not base its sentence on an element of the offense and
the sentence was not manifestly disproportionate to the nature of the offense, we conclude that
the trial court did not err. Accordingly, defendant cannot establish plain error, and we honor his
forfeiture. For the same reasons, defendant’s counsel did not render ineffective assistance by
failing to object to the court’s comments at the sentencing hearing. An attorney “cannot be
considered ineffective for failing to make or pursue what would have been a meritless motion or
objection.” People v. Rogers, 2021 IL 126163, ¶ 32, 184 N.E.2d 222.
¶ 40 III. CONCLUSION
¶ 41 For the reasons stated, we affirm the trial court’s judgment.
¶ 42 Affirmed.
-7-