NOTICE 2023 IL App (4th) 220982-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-22-0982 October 20, 2023 not precedent except in the Carla Bender limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County JATTERIUS L. YANKAWAY, ) No. 20CF212 Defendant-Appellant. ) ) Honorable ) Kevin W. Lyons, ) Judge Presiding.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justices Turner and Knecht concurred in the judgment.
ORDER ¶1 Held: (1) Counsel was not ineffective for filing a speedy trial demand under the wrong statute because defendant could not show counsel’s deficient performance caused prejudice.
(2) Defendant’s convictions for attempted first degree murder and aggravated battery violated the one-act, one-crime rule because the State treated the shooting as a single act by not apportioning the offenses among the shots fired in the charging documents or at trial.
(3) The trial court’s misapprehension of the minimum sentence for attempted first degree murder did not arguably influence its sentencing decision.
(4) The trial court did not demonstrate judicial bias during sentencing.
¶2 In April 2020, defendant, Jatterius L. Yankaway, was charged with attempted first
degree murder (720 ILCS 5/8-4(a), 9-1(A)(1) (West 2018)), aggravated battery (720 ILCS
5/12-3.05(e)(1) (West 2018)), and unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2018)). After a trial, which began on September 19, 2022, the jury found
defendant guilty of the charged offenses and found the State proved a 15-year sentencing
enhancement for possessing a firearm while committing attempted first degree murder.
¶3 Defendant appeals, arguing (1) he received ineffective assistance when counsel
filed a speedy trial demand under the wrong statute after agreeing to multiple continuances,
(2) his convictions for attempted first degree murder and aggravated battery violated the one-act,
one-crime rule, (3) the trial court misapprehended the applicable sentence for attempted first
degree murder, and (4) the court showed judicial bias during sentencing.
¶4 I. BACKGROUND
¶5 On March 20, 2020, the Illinois Supreme Court entered an emergency order
permitting circuit courts to continue trials indefinitely to prevent the spread of the novel
COVID-19 virus. Ill. S. Ct., M.R. 30370 (eff. Mar. 20, 2020). The stay remained in effect until
October 1, 2021. Ill. S. Ct., M.R. 30370 (eff. June 30, 2021).
¶6 On April 9, 2020, the State charged defendant with attempted first degree murder,
aggravated battery, and UPWF. Count I alleged defendant “personally discharged a firearm at
Robert Hunter *** with the intent to kill or do great bodily harm to *** Hunter,” causing great
bodily harm. Count II alleged defendant knowingly discharged a firearm in Hunter’s direction
without legal justification while committing a battery, “thereby causing an injury to *** Hunter
by means of the discharging of said firearm.” Count III alleged defendant “knowingly had in his
possession a firearm” after being previously convicted of a felony.
¶7 On April 13, 2020, the State charged defendant with UPWF in Peoria County case
No. 20-CF-238. The State elected to proceed on case No. 20-CF-238, and defendant pleaded
-2- guilty on September 28, 2020. The trial court sentenced him to seven years’ imprisonment.
Defendant remained in custody during the subsequent proceedings.
¶8 A. Pretrial Continuances
¶9 Turning to the case at issue, the trial court initially set the trial for January 25,
2021. However, on January 14, 2021, the State asked for a continuance due to an unavailable
witness. The court moved the trial date to April 26, 2021, over defense counsel’s objection. On
April 8, 2021, the State requested a continuance because “there is some ballistics work that still
needs to be done on the items of evidence that were collected.” Defense counsel did not object,
and the trial was moved to August 30, 2021.
¶ 10 On August 19, 2021, the State asked for a continuance because a
COVID-19-related lockdown at an Illinois Department of Corrections (DOC) facility rendered
one of its witnesses unavailable. Defense counsel objected, asserting, “My client was planning to
go to trial.” The court moved the trial date to November 15, 2021.
¶ 11 On November 15, 2021, the trial court had three trials scheduled, and defense
counsel was the attorney of record in each of them. The court doubted all three would be
completed that day, and it suggested continuing defendant’s trial. After conferring with the
parties, the court scheduled the trial for February 28, 2022.
¶ 12 On February 24, 2022, one of the State’s witnesses was unavailable due to
another COVID-19-related DOC facility lockdown, and the trial court moved the trial date to
July 11, 2022. The court entered an order showing the parties moved for a continuance. Defense
counsel filed an objection, arguing he “did not approve” of the continuance and it “did not toll
the Defendant’s speedy trial rights.”
-3- ¶ 13 On June 29, 2022, the State moved for another continuance because two witnesses
were unavailable. Defense counsel objected to the continuance. The trial court tried to determine
whether the case’s speedy trial clock was running, and if so, when it would expire. After
conferring with the parties, the court concluded the clock was running, but neither the court nor
the parties could determine its expiration date. The court set the trial for September 19, 2022, but
it scheduled a status hearing on August 10, 2022, to review the speedy trial issue.
¶ 14 On June 30, 2022, defense counsel filed a speedy trial demand under section
103-5 of the Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/103-5 (West
2020)).
¶ 15 At the status hearing on August 10, 2022, the trial court stated, “I don’t think
there is a speedy trial issue because [defendant] can’t get out anyway,” and it left the September
trial date unchanged.
¶ 16 B. Motion to Dismiss
¶ 17 On September 15, 2022, defense counsel filed a motion to dismiss, alleging a
speedy trial violation occurred. The motion argued the speedy trial clock began to run on
October 1, 2021, and the continuances granted on August 19, 2021, February 24, 2022, and June
30, 2022, were not attributable to defendant. It alleged that, of the time between October 1, 2021,
and the trial date of September 19, 2022, 228 days were not attributable to defendant and those
228 days exceeded the 120-day limit under section 103-5 of the Criminal Code. The trial court
denied the motion, finding a 160-day speedy trial period applied pursuant to section 3-8-10 of the
Unified Code of Corrections (Intrastate Detainers Statute) (730 ILCS 5/3-8-10 (West 2020)), and
the trial fell within that time frame.
¶ 18 C. Attempted First Degree Murder Sentencing Range
-4- ¶ 19 On September 19, 2022, prior to trial, the State advised the trial court the
sentencing range for attempted first degree murder was 6 to 30 years’ imprisonment, with an
additional 15 or 20 years possible, depending on which enhancement the State chose to pursue.
The State asserted, “I believe that upon conviction the People would only be asking for a 15-year
possession of a firearm [enhancement],” and “I can represent now that upon conviction I would
be adding 15 years.” Based on the 15-year enhancement, defendant faced a sentencing range of
21 to 45 years for attempted first degree murder, and the court admonished defendant
accordingly.
¶ 20 D. Jury Trial
¶ 21 At trial, the evidence showed defendant and his accomplice, Jafari Robinson, shot
Robert Hunter, defendant’s cousin, multiple times during the early hours of July 26, 2019.
Hunter testified he attended a party that night and he left the party in a vehicle with defendant,
Robinson, and two other individuals. When Hunter exited the vehicle, he turned around and saw
defendant and Robinson standing on either side of the vehicle, holding firearms. Hunter saw
“flashes” and heard gunshots. Hunter suffered gunshot wounds to his “lower abdomen, left lower
thigh, left groin, left thumb, left pinky and middle finger, left forearm, and left biceps.” Due to
his injuries, Hunter lost one of his fingers, he can no longer have children, and he cannot walk
and must use a wheelchair.
¶ 22 Officers discovered five rounds of spent .40-caliber cartridge cases at the scene of
the shooting. After defendant’s arrest, officers found a .40-caliber handgun in the vehicle
defendant was driving. Testing showed “very strong support” that defendant contributed DNA to
the handgun’s grip and trigger. Dustin Johnson, a forensic scientist who testified as an expert in
-5- the field of firearm identification, said two of the spent .40-caliber rounds discovered at the scene
were fired from defendant’s .40-caliber handgun.
¶ 23 At the trial’s conclusion, the jury found defendant guilty of attempted first degree
murder, aggravated battery, and UPWF. The jury also found the State proved the 15-year
enhancement for possessing a firearm while committing attempted first degree murder.
¶ 24 Defendant filed a motion for a new trial, arguing the trial court erred in denying
his motion to dismiss on speedy trial grounds. The court denied the motion.
¶ 25 E. Sentencing Hearing
¶ 26 On October 26, 2022, the matter proceeded to sentencing. During defendant’s
statement in allocution, the following exchange occurred:
“THE COURT: [Y]ou have the opportunity to say something in your own
behalf, if you’d like to, before you get a sentence. I’m not suggesting you should
or should not say anything, but if there’s anything you would like to[ ] say now
would be the time.
Anything you’d like to say?
[DEFENDANT]: Yeah, Your Honor.
I want to take the time to let my little brother know that he’ll see what I’m
going through right now and just be mindful of who you keep around you and
what you do out there. Even if you is innocent, there’s still people ain’t going to
look at it the same with you having a reputation.
I know I ain’t a bad person. I know you all said a lot in this court. I know I
ain’t no bad person. I know I did a lot of good out there. I changed a lot of people
life [sic], and I’m going to continue to do that. I’m going to continue to strive.
-6- Yeah, my best friend [(the victim)] came in here and he told him—he told
a lie. And if you all feel like that’s the truth, that’s on you all. It’s deeper than the
trial.
THE COURT: No. It’s not on us all. It’s on you.
[DEFENDANT]: It’s deeper than the trial to me. This was—this is losing
a family member and losing more family. I mean, it might be entertaining to you
all, but—
THE COURT: I don’t find it the least bit entertaining.
Go ahead.
[DEFENDANT]: It was different. So I want to see—I want you all to
see—to my little brother, I want you to see how many people love me knowing
that I was innocent. Just for they own pride, for they own thing, and I want—I
want you to just really focus and pay attention. I want you all to pay attention.
Look how many people ain’t in this courtroom right now. How many people’s life
I changed. Focus on that. No matter how good you do, there’s going to be an
outcome like this if you play around with the wrong people. And to that I
would—forever I would be my brother[’s] keeper.
That’s all I got to say.
THE COURT: All right. Thank you.”
¶ 27 Before delivering its sentencing decision, the trial court made the following
comments:
“[Y]ou murdered your cousin.
-7- So to say that somebody has a bad view of you comes as a surprise to no
one. When you murder your cousin and your best friend or try to, that has a way
of sticking around.
***
[Y]ou said during your release that you were trying to spend time with your son
and, quote, just trying to stay alive.
When the probation officer asked for you to expand on that, you know,
what’s that all about, he said in 2015, when you were sentenced to the DOC, you
kept hearing about friends of yours being killed and locked up for serious
offenses. And you went on to say that this made you start feeling somewhat
depressed and have anxiety about your own safety when back in the community.
You, [defendant], are the person that the community needs to be afraid of,
but, worse than that, your own family, your own family, and your own friend
needed to be afraid of you.
Now, maybe, maybe your view or maybe the way you cope with this is to
say that he was going to kill me first. I don’t see any evidence of that, but, either
way, as difficult as this if for me to say, you are the reason prisons are built.”
The court concluded, “I can’t think of another case off the top of my head where the Defendant
has been so cavalier, not in a rude way, I think you’ve not been rude, here you’ve been cordial,
for the most part, but it’s a shame that you picked a life of prison and not a life of Peoria.”
¶ 28 The trial court sentenced defendant to 70 years’ imprisonment—44 years for
attempted first degree murder and 26 years for aggravated battery, to be served consecutively. It
-8- did not sentence defendant for UPWF, saying, “A finding will be entered on the [UPWF] in
Count 3, but judgment will not be entered.” In delivering its sentencing decision, the court stated:
“[I]t’s the order and judgment of the Court that the Defendant *** be sentenced in
Count 1, attempt first-degree murder, a Class X felony, to a term in [DOC] of 44
years. That it be followed by a period of three years of mandatory supervised
release known as parole. That it be served at its 85 percent rate.
It will be mandatorily consecutive to Count 2 as a matter of law. 44 years
being a 26-year minimum because it’s a 20-year tack-on with a six-year
minimum. 44 years in total. It should be served at the mandatory consecutive rate
in Count 2. Judgment is entered on Count 1.
On Count 2, for aggravated battery, for 26 years, and that that be served
with three years of mandatory supervised release as well.”
¶ 29 On November 7, 2022, defendant filed a motion to reconsider his sentence, which
the trial court denied.
¶ 30 This appeal followed.
¶ 31 II. ANALYSIS
¶ 32 Defendant argues (1) he received ineffective assistance when defense counsel did
not file a speedy trial demand until June 30, 2022, and he failed to file the demand under the
Intrastate Detainers Statute; (2) his convictions for attempted first degree murder and aggravated
battery violated the one-act, one-crime rule; (3) the trial court misapprehended the minimum
sentence defendant faced for attempted first degree murder; and (4) the court denied defendant a
fair sentencing hearing by demonstrating judicial bias. We disagree.
-9- ¶ 33 A. Defendant Cannot Show Defense Counsel’s Deficient Performance Caused
Prejudice
¶ 34 While defendant possesses both a statutory and constitutional speedy trial right,
this appeal involves only his statutory right. See 725 ILCS 5/103-5(a) (West 2022); U.S. Const.,
amends. VI, XIV; Ill. Const. 1970, art. 1, § 8. When an incarcerated individual faces more than
one charge in the same county, they “shall be tried upon all of the remaining charges thus
pending within 160 days.” 725 ILCS 5/103-5(e) (West 2022). The 160-day speedy trial timeline
also applies “to persons committed to any institution or facility or program in the [DOC] who
have untried complaints, charges[,] or indictments pending.” 730 ILCS 5/3-8-10 (West 2022).
Such a person must file an unambiguous speedy trial demand meeting the Intrastate Detainers
Statute’s requirements. See People v. Staten, 159 Ill. 2d 419, 428, 639 N.E.2d 550, 555 (1994);
People v. Sandoval, 236 Ill. 2d 57, 65-67, 923 N.E.2d 292, 297-98 (2010). “[A] mere objection
to delay does not suffice to invoke the statutory speedy-trial right. Rather, the defendant must
make an objection specifically by demanding trial.” People v. Hartfield, 2022 IL 126729, ¶ 35,
202 N.E.3d 890.
¶ 35 Defendant argues defense counsel provided ineffective assistance when he did not
file a speedy trial demand under the Intrastate Detainers Statute or object on speedy trial grounds
when the trial court granted continuances on August 19, 2021, November 15, 2021, February 24,
2022, and June 30, 2022. Defendant insists that had counsel filed a timely speedy trial demand
under the proper statute and objected to the State’s continuance requests, the 228 days allegedly
not attributable to defendant between October 1, 2021, when our supreme court lifted the
emergency order, and trial date on September 19, 2022, would have constituted a statutory
speedy trial violation.
- 10 - ¶ 36 Defendant was subject to the Intrastate Detainers Statute because he was
incarcerated when the State proceeded on the charges in the case below. See 730 ILCS 5/3-8-10
(West 2022). Defense counsel did not file a speedy trial demand until June 30, 2022, and he filed
it under section 103-5 of the Criminal Code rather than the Intrastate Detainers Statute. Because
counsel did not file the demand under the proper statute, the 160-day limit did not begin to run.
See Staten, 159 Ill. 2d at 428-30.
¶ 37 When faced with an ineffective assistance of counsel claim, we apply the
two-prong test developed in Strickland v. Washington, 466 U.S. 668 (1984). People v. Thomas,
2017 IL App (4th) 150815, ¶ 10, 93 N.E.3d 664. “To prevail on such a claim, a defendant must
show both that counsel’s performance was deficient and that the deficient performance
prejudiced the defendant.” (Internal quotation marks omitted.) Thomas, 2017 IL App (4th)
150815, ¶ 10. To establish deficient performance, the defendant must demonstrate counsel’s
performance “fell below an objective standard of reasonableness.” Thomas, 2017 IL App (4th)
150815, ¶ 10. To establish prejudice, the defendant must show that, “but for counsel’s
unprofessional errors, there is a reasonable probability that the result of the proceeding would
have been different.” (Internal quotation marks omitted.) Thomas, 2017 IL App (4th) 150815,
¶ 11. “A defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one
of the prongs precludes a finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35,
25 N.E.3d 601.
¶ 38 We find instructive our decisions in People v. Jackson, 235 Ill. App. 3d 732, 601
N.E.2d 1317 (1992), and People v. Willis, 235 Ill. App. 3d 1060, 601 N.E.2d 1307 (1992).
Jackson and Willis involved codefendants represented by the same defense counsel, both of
whom argued counsel was ineffective for filing a speedy trial demand under section 103-5 of the
- 11 - Criminal Code rather than the Intrastate Detainers Statute. See Jackson, 235 Ill. App. 3d at 736;
Willis, 235 Ill. App. 3d at 1063. Both defendants were incarcerated for 210 days between
counsel’s speedy trial demand and the trial’s start date. Jackson, 235 Ill. App. 3d at 736, 739;
Willis, 235 Ill. App. 3d at 1068. Both insisted counsel’s allegedly deficient performance
prejudiced them because the 160-day speedy trial limit would have expired if counsel had filed a
demand under the proper statute. Jackson, 235 Ill. App. 3d at 736-40; Willis, 235 Ill. App. 3d at
1065-69.
¶ 39 In both Jackson and Willis, we found counsel’s performance deficient. While
counsel insisted he did not know the defendants were incarcerated when he filed his speedy trial
motion, the record available to him showed they were. Jackson, 235 Ill. App. 3d at 737; Willis,
235 Ill. App. 3d at 1066. We determined “counsel should have known [the Intrastate Detainers
Statute] governed [the defendants’] right to a speedy trial,” and therefore counsel’s actions “fell
below a reasonably competent standard.” Jackson, 235 Ill. App. 3d at 738; see Willis, 235 Ill.
App. 3d at 1067.
¶ 40 However, we found the defendants failed to demonstrate prejudice because “the
record [did] not support the conclusion that if defense counsel had filed the appropriate
speedy-trial demand the State would not have brought defendant to trial within 160 days.”
Jackson, 235 Ill. App. 3d at 740; see Willis, 235 Ill. App. 3d at 1069. We emphasized that a
prejudice finding would be wholly speculative, finding, “We cannot presume the State would not
have prosecuted defendant within the required time. We simply do not know what would have
happened had defense counsel filed a proper intrastate detainers motion.” Willis, 235 Ill. App. 3d
at 1069; see Jackson, 235 Ill. App. 3d at 740.
- 12 - ¶ 41 A notable factual difference exists between those cases and the one at issue. In
Jackson, we observed, “The State’s brief indicates defendant’s trial was not delayed because of
case backlog.” Jackson, 235 Ill. App. 3d at 740. We found the State chose not to try the
defendants within 160 days “because [the State] knew defense counsel erroneously cited section
103-5 of the Code, rather than [the Intrastate Detainers Statute], and did not fulfill the terms of
the latter section in requesting a speedy trial.” Jackson, 235 Ill. App. 3d at 740. We denounced
the State’s decision as “an inappropriate reliance on the procedural requirements of [the
Intrastate Detainers Statute], particularly when the information that would have been contained
in a proper demand was already known to the prosecutor.” Jackson, 235 Ill. App. 3d at 740.
Here, neither the record nor the briefs suggest the State inappropriately exploited defense
counsel’s mistaken belief regarding the applicable speedy trial time frame. Instead, the record
suggests the State, defense counsel, and the trial court all operated under similar
misunderstandings regarding the speedy trial time frame during the hearing on June 30, 2022.
¶ 42 Nevertheless, we reach the same conclusion here as we did in Jackson and Willis.
Defendant was incarcerated for the duration of the proceedings below. Defense counsel’s
performance fell below a reasonably competent standard because he should have known the
Intrastate Detainers Statute governed defendant’s speedy trial right. See Jackson, 235 Ill. App.
3d at 738; Willis, 235 Ill. App. 3d at 1067. However, the record does not support the conclusion
that if defense counsel filed a speedy trial demand under the proper statute, defendant would not
have been brought to trial within 160 days. See Jackson, 235 Ill. App. 3d at 740; Willis, 235 Ill.
App. 3d at 1069. We simply do not know what would have happened if defense counsel filed a
proper intrastate detainers motion earlier in the process. Jackson, 235 Ill. App. 3d at 740; Willis,
235 Ill. App. 3d at 1069. Therefore, defendant cannot satisfy Strickland’s second prong by
- 13 - showing a reasonable probability exists the proceeding’s result would have been different but for
counsel’s error in preparing defendant’s speedy trial demand. Jackson, 235 Ill. App. 3d at 740;
Willis, 235 Ill. App. 3d at 1069. Accordingly, defendant’s ineffective assistance argument fails.
See Simpson, 2015 IL 116512, ¶ 35.
¶ 43 B. Defendant’s Convictions for Attempted First Degree Murder and Aggravated x
Battery Violated the One-Act, One-Crime Rule
¶ 44 Next, defendant argues we must vacate his aggravated battery conviction for
violating the one-act, one crime rule. While defendant forfeited this issue by not raising it during
the proceedings below or including it in a posttrial motion, he contends it constitutes
second-prong plain error.
¶ 45 The plain error doctrine permits us to review unpreserved error in two instances:
“(1) where 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 and (2) where 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. Belknap, 2014 IL 117094, ¶ 48, 23
N.E.3d 325.
“Under the second prong of plain-error review, prejudice to the defendant is presumed because
of the importance of the right involved, regardless of the strength of the evidence.” (Emphasis in
original and internal quotation marks omitted.) People v. Thompson, 238 Ill. 2d 598, 613, 939
N.E.2d 403, 413 (2010). “[O]ne-act, one crime violations fall within the second prong of the
- 14 - plain error doctrine as an obvious error so serious that it challenges the integrity of the judicial
process.” People v. Coats, 2018 IL 121926, ¶ 10, 104 N.E.3d 1102.
¶ 46 “[A] criminal defendant may not be convicted of multiple offenses when those
offenses are all based on precisely the same physical act.” Coats, 2018 IL 121926, ¶ 11. When
conducting a one-act, one-crime analysis, we first “ascertain[ ] whether the defendant’s conduct
consists of a single physical act or separate acts.” Coats, 2018 IL 121926, ¶ 12. An act is “any
overt or outward manifestation which will support a different offense.” People v. King, 66 Ill. 2d
551, 566, 363 N.E.2d 838, 844-45 (1977). If the defendant committed multiple acts, we must
then “determine[ ] whether any of the offenses are lesser-included offenses. [Citation.] If none of
the offenses are lesser-included offenses, then multiple convictions are proper.” Coats, 2018 IL
121926, ¶ 12. We review de novo whether a one-act, one-crime violation occurred. Coats, 2018
IL 121926, ¶ 12.
¶ 47 1. The State Did Not Apportion the Offenses Among the Different Gunshots
¶ 48 Defendant argues his attempted first degree murder and aggravated battery
convictions were based on the same act, and he claims the State did not apportion the offenses
into separate conduct. Relying on People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2001),
defendant contends we should not distinguish between the various gunshots because the State did
not make that distinction in the charging documents or at trial.
¶ 49 In Crespo, the defendant stabbed the victim three times, but the State did not
differentiate between the different stab wounds when charging the defendant with armed
violence and two counts of aggravated battery. Crespo, 203 Ill. 2d at 342-43. Rather than
apportioning the offenses among the three stab wounds, the indictment treated the stabbings as a
single infliction of bodily harm and “charge[d] [the] defendant with the same conduct under
- 15 - different theories of criminal culpability.” Crespo, 203 Ill. 2d at 342. After reviewing the
indictment and the State’s closing argument to the jury, our supreme court determined “the
State’s theory at trial *** amply supports the conclusion that the intent of the prosecution was to
portray [the] defendant’s conduct as a single attack.” Crespo, 203 Ill. 2d at 343-44. The court
found the defendant’s convictions for armed violence and aggravated battery with a deadly
weapon violated the one-act, one-crime doctrine, and it vacated his conviction for aggravated
battery with a deadly weapon. Crespo, 203 Ill. 2d at 344-46.
¶ 50 In People v. Beltran, 327 Ill. App. 3d 685, 693, 765 N.E.2d 1071, 1078 (2002),
the Second District applied Crespo to an incident involving multiple shooters, after which the
defendant was convicted of attempted first degree murder and aggravated discharge of a firearm.
The Second District summarized Crespo’s finding thusly: “[A]lthough the multiple stabbings
could have supported the separate convictions, the State did not apportion the crimes among the
various wounds, either in the indictment or at trial. Because the State portrayed the defendant’s
conduct as a single attack, multiple convictions were untenable.” Beltran, 327 Ill. App. 3d at
693. The Second District found Crespo controlled because, while the defendant and his
accomplice fired multiple shots at multiple victims, the State “did not specify which shot
supported which charge” in the indictment or at trial. Beltran, 327 Ill. App. 3d at 693. The
Second District concluded, “Thus, against each victim, defendant committed a single act that
supported only a single conviction,” and it vacated the defendant’s aggravated discharge of a
firearm convictions. Beltran, 327 Ill. App. 3d at 693.
¶ 51 We find Crespo controls. While defendant and his accomplice fired multiple
gunshots, which would have supported the different charges if distinguished in the charging
documents or at trial (see Crespo, 203 Ill. 2d at 342, 345; Beltran, 327 Ill. App. 3d at 693), the
- 16 - State failed to apportion the offenses to the various gunshots fired, “and it is improper for this
court to do so now on appeal.” Crespo, 203 Ill. 2d at 345. On appeal, the State argues the
shooting consisted of multiple acts because the jury was instructed on defendant’s accountability
for his accomplice’s actions. However, the State fails to distinguish Crespo and Beltran, which
require us to look to the proceedings below to identify how the State treated the conduct at issue.
See Crespo, 203 Ill. 2d at 345 (“[T]he indictment must indicate that the State intended to treat
the conduct of defendant as multiple acts in order for multiple convictions to be sustained.”);
Beltran, 327 Ill. App. 3d at 693 (“Because the State portrayed the defendant’s conduct as a single
attack, multiple convictions were untenable.”). Beltran also dealt with a shooting involving a
defendant and an accomplice, finding the defendant’s accountability for his accomplice’s actions
did not prevent his convictions from violating the one-act, one-crime rule. See Beltran, 327 Ill.
App. 3d at 692-93. We agree with Beltran and reach the same conclusion.
¶ 52 During the proceedings below, the State treated the shooting as a single act of
bodily harm, as it did not apportion the charged offenses to the gunshots fired or the multiple
injuries inflicted. See Beltran, 327 Ill. App. 3d at 693. Accordingly, defendant’s conduct
constituted a single act, which cannot sustain multiple convictions. See Coats, 2018 IL 121926,
¶ 11. We vacate defendant’s conviction and sentence for aggravated battery, as attempted first
degree murder is the more serious offense. See Beltran, 327 Ill. App. 3d at 693.
¶ 53 2. Sentencing on Defendant’s UPWF Conviction
¶ 54 The State contends we should remand this matter for defendant to be sentenced on
his UPWF conviction if we find a one-act, one-crime violation occurred. Defendant does not
challenge this contention. The jury found defendant guilty of UPWF, but the trial court did not
impose a sentence for it. The final judgment in a criminal case is the imposition of a sentence,
- 17 - and the sentence is a necessary part of a complete judgment of guilt. People v. Robinson, 267 Ill.
App. 3d 900, 907, 642 N.E.2d 1317, 1322 (1994). “In the absence of a sentence, a judgment of
conviction is not final.” Robinson, 267 Ill. App. 3d at 907. “The proper remedy for a failure to
enter judgment is to remand to the circuit court for entry of judgment.” Robinson, 267 Ill. App.
3d at 907. Because the court did not sentence defendant for his UPWF conviction, remand for
sentencing on that count is necessary. See People v. Segara, 126 Ill. 2d 70, 78, 533 N.E.2d 802,
806 (1988) (remanding the matter “for sentencing on the second conviction because sentencing
is a necessary component of a judgment of conviction”).
¶ 55 We quickly note remand for sentencing on defendant’s UPWF conviction raises
no one-act, one-crime concerns, as defendant performed multiple acts by possessing a handgun
and then firing it at Hunter. See King, 66 Ill. 2d at 566. The State distinguished those actions in
the charging documents, and neither attempted first degree murder nor UPWF is a
lesser-included offense of the other. See 720 ILCS 5/8-4(a), 9-1(A)(1), 24-1.1(a) (West 2020);
Coats, 2018 IL 121926, ¶ 12.
¶ 56 C. The Trial Court’s Misapprehension of the Sentencing Range Did Not Arguably
Influence Its Sentencing Decision
¶ 57 Defendant also argues the trial court misapprehended the minimum sentence for
attempted first degree murder, and the alleged misapprehension influenced the court’s sentencing
decision. As with his one-act, one-crime claim, defendant acknowledges he did not properly
preserve these arguments, but he asks us to review them for second-prong plain error.
¶ 58 To establish second-prong plain error in the sentencing context, “a defendant must
first show that a clear or obvious error occurred. [Citation.] Then, the defendant must show that
*** the error was so egregious as to deny the defendant a fair sentencing hearing.” People v.
- 18 - Fisher, 2023 IL App (4th) 220717, ¶ 29. “A misstatement of the understanding of the minimum
sentence by the trial judge necessitates a new sentencing hearing only when it appears that the
mistaken belief of the judge arguably influenced the sentencing decision.” People v. Eddington,
77 Ill. 2d 41, 48, 394 N.E.2d 1185, 1188 (1979).
¶ 59 In Eddington, the trial court erroneously believed the minimum sentence
applicable was 4 years’ imprisonment, though it ultimately imposed a 20-year sentence.
Eddington, 77 Ill. 2d at 48; see People v. Eddington, 64 Ill. App. 3d 650, 655, 381 N.E.2d 835,
839 (1978). In reaching its conclusion, our supreme court distinguished People v. Moore, 69 Ill.
2d 520, 372 N.E.2d 666 (1978), where “the trial judge imposed a 4-year minimum sentence term
on a defendant, thinking that the law required a 4-year minimum term.” Eddington, 77 Ill. 2d at
48 (citing Moore, 69 Ill. 2d at 521-24). The Eddington court found, “Nothing like that occurred
here. The [trial] judge here expressly stated that ‘this isn’t the minimal kind of situation.’ ”
Eddington, 77 Ill. 2d at 48. Our supreme court affirmed the defendant’s sentence, finding,
“Although the trial [judge] did refer, in his evaluation of the case for sentencing purposes, to his
mistaken belief as to the minimum sentence required, there is no indication here that the 4-year
minimum term was used by the trial judge as a reference point ***.” Eddington, 77 Ill. 2d at 48.
¶ 60 Eddington applies here. The jury found the State met its burden regarding the
15-year sentencing enhancement for possessing a firearm while committing attempted first
degree murder. Based on the 15-year enhancement, defendant faced a sentencing range of 21 to
45 years’ imprisonment for attempted first degree murder. However, after imposing a 44-year
sentence for attempted first degree murder, the trial court erroneously said defendant faced a 26-
year minimum for that offense “because it’s a 20-year tack-on with a six-year minimum.”
Notably, the court delivered its attempted first degree murder sentencing decision before
- 19 - demonstrating its mistaken belief. It also expressed no intent to sentence defendant to the
minimum or maximum sentence, nor did it seek to impose a sentence directly tied to either
extreme. We find the court did not use its misapprehension of the applicable minimum sentence
as a reference point, and its misstatement satisfied neither plain error prong. See Eddington, 77
Ill. 2d at 48.
¶ 61 Defendant analogizes this case to People v. Hausman, 287 Ill. App. 3d 1069, 679
N.E.2d 867 (1997). In Hausman, the trial court erroneously stated the applicable minimum
sentence for aggravated battery was three years, rather than two years, and it imposed
consecutive three-year prison terms. Hausman, 287 Ill. App. 3d at 1070-71. In doing so, the
court declared, “[E]ven though I think your record mandates a much longer sentence, I am going
to impose the minimum sentence of three (3) years in the [DOC].” (Emphasis added.) Hausman,
287 Ill. App. 3d at 1071. Based on the court’s statements, we vacated the defendant’s sentence
and remanded for a new sentencing hearing because “it arguably influenced the judge’s
sentencing decision.” Hausman, 287 Ill. App. 3d at 1072.
¶ 62 Hausman is distinguishable. There, the trial court’s statements clearly and
undeniably influenced its sentencing decision—the court sought to impose the minimum
sentence, it believed the offense carried a three-year minimum sentence, and thus it sentenced the
defendant to three years’ imprisonment. See Hausman, 287 Ill. App. 3d at 1070-71. The same
was true in Moore, where the trial court imposed a four-year sentence because it believed that
was the minimum. Moore, 69 Ill. 2d at 521. Conversely, the trial court here declared the
incorrect minimum sentence for attempted first degree murder, but it did not use that incorrect
minimum as a reference point when sentencing defendant. See Eddington, 77 Ill. 2d at 48. The
court’s mistaken belief regarding the applicable minimum sentence for attempted first degree
- 20 - murder did not arguably influence its sentencing decision. See Eddington, 77 Ill. 2d at 48.
Accordingly, plain error did not occur.
¶ 63 D. The Trial Court Did Not Demonstrate Judicial Bias During Sentencing
¶ 64 Finally, defendant argues the trial court exhibited judicial bias against him,
thereby denying him a fair sentencing hearing. “A sentencing hearing is fundamentally unfair
when the proceeding is affected by judicial bias.” People v. Montgomery, 2023 IL App (3d)
200389, ¶ 28. “Trial judges are presumed to be impartial, and the party claiming bias bears the
burden of overcoming this presumption.” Montgomery, 2023 IL App (3d) 200389, ¶ 28. To
prevail on a judicial bias claim, a defendant must show the court exhibited “animosity, hostility,
ill will, or distrust” toward the defendant. People v. Vance, 76 Ill. 2d 171, 181, 390 N.E.2d 867,
872 (1979). “Allegations of judicial bias must be viewed in context and should be evaluated in
terms of the trial judge’s specific reaction to the events taking place.” People v. Jackson, 205 Ill.
2d 247, 277, 793 N.E. 2d 1, 19 (2001). We review de novo whether a trial court’s conduct
constitutes bias and requires reversal. Fisher, 2023 IL App (4th) 220717, ¶ 31.
¶ 65 As evidence of the trial court’s purported bias, defendant highlights comments
made during sentencing. During defendant’s statement in allocution, defendant accused Hunter
of lying during his testimony, saying, “[M]y best friend came in here and *** he told a lie. And
if you all feel like that’s the truth, that’s on you all. It’s deeper than the trial.” The court briefly
interjected, responding, “No. It’s not on us all. It’s on you.” When defendant countered, “I mean,
it might be entertaining to you all,” the court replied, “I don’t find it the least bit entertaining.”
Before delivering defendant’s sentence, the court laid out the factors it considered in reaching its
decision. In doing so, the court commented, “[Defendant is] the person that the community
- 21 - needed to be afraid of,” “[defendant is] the reason prisons are built,” and “I can’t think of another
case off the top of my head where the Defendant has been so cavalier.”
¶ 66 When viewed in context, these statements do not demonstrate bias against
defendant. During his statement in allocution, defendant refused to accept responsibility for his
actions and portrayed himself as a victim. Defendant blamed the trial court for believing
Hunter’s testimony and suggested the court found the process “entertaining.” The court quickly
refuted both assertions without belaboring either point. The court told defendant the community
needed to fear him in response to defendant’s claim he experienced anxiety and feared for his
own safety when in the community. After noting Hunter, defendant’s cousin, needed to fear
defendant, the court declared, “[M]aybe the way you cope with this is to say that [Hunter] was
going to kill me first. I don’t see any evidence of that, but, either way, as difficult as this is for
me to say, you are the reason prisons are built.”
¶ 67 “The seriousness of the crime is the most important factor in determining an
appropriate sentence.” (Internal quotation marks omitted.) People v. Kendrick, 2023 IL App (3d)
200127, ¶ 50. Additionally, “trial courts may consider a defendant’s lack of remorse or lack of
veracity in imposing a sentence, since those are factors which may have a bearing on the
defendant’s potential for rehabilitation.” (Internal quotation marks omitted.) People v. Donlow,
2020 IL App (4th) 170374, ¶ 84, 178 N.E.3d 1148; see People v. Ward, 113 Ill. 2d 516, 528, 499
N.E.2d 422, 426 (1986) (“[A] continued protestation of innocence and a lack of remorse may
convey a strong message to the trial judge that the defendant is an unmitigated liar and at
continued war with society. Such impressions *** are proper factors to consider in imposing
sentence.”). Here, the trial court responded to the seriousness of defendant’s crimes and the
significance of his refusal to accept responsibility, which are proper considerations during
- 22 - sentencing. See Kendrick, 2023 IL App (3d) 200127, ¶ 50; Donlow, 2020 IL App (4th) 170374,
¶ 84.
¶ 68 Likewise, the record shows the trial court described defendant as “cavalier”
because defendant’s record demonstrated a complete disregard for the law, as well as a
preference for committing crimes rather than abiding by the rules of society. Specifically, the
court said, “I can’t think of another case off the top of my head where the Defendant has been so
cavalier, not in a rude way, I think you’ve not been rude, here you’ve been cordial, for the most
part, but it’s a shame that you picked a life of prison and not a life of Peoria.” The court’s
statements, in context, demonstrate it was responding to the offense’s seriousness, defendant’s
commitment to a life of crime, and defendant’s refusal to take responsibility for his actions. They
do not show “animosity, hostility, ill will, or distrust” toward defendant. Vance, 76 Ill. 2d at 181.
Accordingly, remand for a new sentencing hearing is not warranted.
¶ 69 III. CONCLUSION
¶ 70 For the foregoing reasons, we affirm defendant’s attempted first degree murder
conviction and sentence, vacate his aggravated battery conviction and sentence, and remand this
matter to the trial court for the limited purpose of sentencing defendant for his UPWF conviction.
¶ 71 Affirmed in part and vacated in part; cause remanded with instructions.
- 23 -