THIRD DIVISION March 9, 2016

No. 1-14-0134

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 14865 ) MARCELINO SAUSEDA, ) Honorable ) Lawrence Edward Flood, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion.

OPINION

¶1 On a Saturday afternoon in the summer of 2009, on 18th Street, one of the main streets

though Chicago's Pilsen neighborhood, defendant, Marcelino Sauseda walked up to a car stopped

at an intersection and fired four shots into the vehicle, missing the driver, but killing the

passenger. A jury convicted Sauseda of murder and aggravated discharge of a firearm and the

trial court later sentenced him to 55 years' imprisonment on the murder charge and a consecutive

sentence of 7 years for the aggravated discharge of a firearm. The sole issue Sauseda raises on

appeal is the length of his sentence, which he claims is excessive. We disagree and affirm.

¶2 Sauseda was charged with the first degree murder of Jeff Maldonado, Jr., and aggravated

discharge of a firearm into a vehicle occupied by Angel Santos. On Saturday, July 25, 2009,

around 4 p.m., Santos was stopped in his van heading eastbound near the intersection of West 1-14-0134

18th and Loomis streets in Chicago when Sauseda walked up to the car and began shooting.

Sauseda was wearing a white T-shirt and red shorts and had a black scarf or shirt covering the

bottom half of his face. Santos was not struck by any bullets, but Maldonado, who was in the

passenger seat, was shot and killed.

¶3 Off-duty Chicago police officer Brett Goldstein was driving his car with his wife and

young son eastbound on 18th Street when he witnessed Sauseda firing a gun at the van.

Goldstein chased Sauseda into an alley, and detained him there with the assistance of another

off-duty police officer, who was in a nearby business when the shots were fired. Goldstein later

located a semiautomatic weapon he observed Sauseda discard in the alley. The weapon was later

matched to shell casings recovered at the scene. After responding officers handcuffed Sauseda,

they had him stand and recovered a black scarf or T-shirt from underneath his body.

¶4 Sauseda testified in his defense and recounted that he was in the neighborhood to make

sure relatives knew about a party his family was having that evening. As he walked down 18th

Street, he witnessed an unknown individual firing a gun, followed the shooter into an alley and

was arrested shortly thereafter by police, who mistook him for the offender. Although Sauseda

tried to tell the officers that the shooter was running away, they did not listen to him. Sauseda

denied firing any shots that day, being in possession of a gun or that a black shirt was found

under his body after he was arrested.

¶5 The jury found Sauseda guilty of first degree murder and aggravated discharge of a

firearm. It also found that, during the offense of first degree murder, Sauseda personally

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discharged a firearm causing death to another person. Sauseda filed a motion for a new trial,

which the trial court denied.

¶6 The presentence investigation report (PSI) showed Sauceda was unemployed, had one

child, obtained a GED and vocational training, used drugs and alcohol, and was previously

convicted of driving under the influence (DUI). Although Sauceda admitted being a member of

the Latin Counts street gang since 1999, he reported terminating his gang affiliation several

months before his arrest. The PSI also indicated that while Sauseda was incarcerated awaiting

trial, he was charged with possession of a weapon (a shank) in a penal institution on March 2,

2011, and again on October 6, 2011.

¶7 At the sentencing hearing, the parties presented aggravating and mitigating factors for the

court's consideration. Maldonado's parents addressed the court and read their victim impact

statements. The State argued in aggravation that Sauseda deserved a sentence greater than the

minimum as he had caused or threatened serious harm by firing into the van several times, his

actions were unprovoked, and he had perjured himself at trial. The State noted that Sauseda was

raised in a stable environment, did not take the needs of his child into consideration when he

committed the offenses, was a gang member with gang tattoos, and, since his incarceration, was

caught twice with shanks inside Cook County jail. The State emphasized that the court should

impose a sentence that would deter others from committing similarly violent crimes, particularly

where Sauseda's victim was engaged in lawful activity at the time he was murdered.

¶8 In mitigation, defense counsel argued that Sauseda tried to be the best parent he could to

his daughter and had obtained his GED. Counsel argued that there was nothing in the record to

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indicate that Sauseda was an active gang member, particularly in light of the fact that his

criminal history consisted of a single DUI. He further argued that even the minimum sentence

would place Sauseda in prison for the rest of his life, as he would not be released until he was 75

years old. In allocution, Sauseda again proclaimed his innocence and stated that the court made

the wrong decision.

¶9 After reciting that it had considered all the materials presented and the parties' arguments,

the court observed that the shooting was senseless and there was no reason for the victim's death.

The court noted that any sentence it imposed would likely not deter the acts of violence that

occur every day. The court found Sauseda had opportunities to make good decisions where he

had a supportive family, obtained his GED, and received vocational training, but had squandered

those opportunities by committing a senseless act with a gun. The court sentenced Sauseda to 30

years for first degree murder, plus the 25-year mandatory enhancement for using a firearm, for a

total of 55 years. The court also sentenced Sauseda to seven years' imprisonment for the

aggravated discharge of a firearm, to be served consecutively to the murder conviction. The court

denied Sauseda's motion to reconsider sentence.

¶ 10 Sauseda raises two arguments on appeal. He first contends that his de facto life sentence

is excessive where the trial court improperly aggravated his sentence based upon the nature of

the offense. In particular, Sauseda maintains that the trial court both applied the 25-year firearm

enhancement and relied heavily on the fact that the offense was a "senseless act with a gun" in

sentencing him to 13 years over the mandatory minimum of 49 years' imprisonment. Sauseda's

second argument is that even if only proper mitigating and aggravating factors were considered,

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his sentence was excessive because the trial court abused its discretion in failing to consider

several factors in mitigation. Although in his statement in allocution, Sauseda continued to

maintain his innocence, he has not challenged the sufficiency of the evidence on appeal and thus

has abandoned any arguments other than those concerning his sentence.

¶ 11 We note initially that Sauseda has forfeited his first issue on appeal by failing to

specifically include it in his motion to reconsider sentence. People v. Enoch,

(1988). A forfeited argument regarding sentencing, however, may be reviewed for plain

error. People v. Freeman,

(2010) (citing People v. Hillier,

(2010)). In order to obtain relief under the plain error doctrine, a defendant must first

show that a clear or obvious error occurred. Hillier,

. "In the sentencing context,

a defendant must then show either that (1) the evidence at the sentencing hearing was closely

balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing."

The defendant has the burden of persuasion under both prongs of the doctrine.

¶ 12 Here, Sauseda fails to satisfy his burden to establish a clear and obvious error occurred in

sentencing. Sauseda's sentence falls within the sentencing range for his offenses. He was eligible

for life in prison because he committed first degree murder by personally discharging a firearm

causing the death of another person. See 720 ILCS 5/9-1(a)(1) (West 2008). The sentencing

range derives from the combination of the 20- to 60-year range for first degree murder (730

ILCS 5/5-8-1(a)(1)(a) (West 2008); Pub. Act 97-1150, § 670 (eff. Jan. 25, 2013) (repealing 730

ILCS 5/5-8-1(a)(1)(a) (West 2008) (now see 730 ILCS 5/5-4.5-20(a) (West 2014))), with the

mandatory addition of a 25-year to natural life range for committing this crime by firing a

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firearm and causing death of another person (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008)).

Additionally, the sentencing range for the Class 1 aggravated discharge of a firearm conviction

was 4 to 15 years. See 720 ILCS 5/24-1.2(a)(2) (West 2008); 730 ILCS 5/5-8-1(a)(4) (West

2008); Pub. Act 95-1052, § 90 (eff. July 1, 2009) (repealing 730 ILCS 5/5-8-1(a)(4) (West 2008)

(now see 730 ILCS 5/5-4.5-30(a) (West 2014)). Therefore, the sentencing range applicable to

defendant was 49 years to life in prison. Accordingly, the 62-year sentence imposed was well

within the applicable sentencing range and is, therefore, presumptively valid. People v.

Hauschild,

(2007).

¶ 13 Nonetheless, Sauseda contends that his sentence was the product of the trial court's

conduct in both imposing the mandatory 25-year firearm enhancement and considering in

aggravation the fact that Sauseda shot Maldonado with a gun. In fashioning a sentence, a court

cannot consider a factor that is an element of the offense as an aggravating factor. See People v.

Phelps,

(2004). However, this rule " 'is not meant to be applied rigidly,

because sound public policy dictates that a sentence be varied in accordance with the

circumstances of the offense.' " People v. Spicer,

(2007) (quoting

People v. Cain,

(1991)). Moreover, "[i]n determining the correctness of

a sentence, the reviewing court should not focus on a few words or statements made by the trial

court, but is to consider the record as a whole." (Internal quotation marks omitted.) People v.

Reed,

(2007).

¶ 14 Sauseda contends that the court's primary consideration at sentencing was that he was

convicted of shooting someone, a factor that was inherent in the offense of first degree murder

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and the mandatory firearm enhancement that accompanied it. In imposing sentence, the court

stated that it considered the PSI, the arguments made in aggravation and mitigation, the victim

impact statements, Sauseda's allocution (during which he continued to profess his innocence and

expressed no remorse) and the sentencing factors as set forth in the Illinois Criminal Code.

Sauseda highlights the court's following comments:

"In considering the sentence in this case and considering the facts in this case, I

am sure it's said many times in the courtroom throughout this building these cases, these

shooting[s] are senseless. Absolutely no reason in the world why [the victim] is dead

today. It's senseless acts, and they occur[] everyday. And any sentence again that I

impose *** is not going to change that until we change as a society.

And in looking at [defendant's] background, you know, comments are made about

the fact that well one of the reasons why these crimes occur is because the family

structure and they don't have opportunities.

But I take a look at [defendant's] case. [Defendant] had plenty of opportunities to

do right with his life. He has a good family. He had opportunities for education and even

went out and after leaving high school got his GED and went to *** Coyne to receive

education in dealing with the HVAC work. Plenty of opportunities squandered for no

reason.

Based upon a senseless act with a gun on a street on a Saturday. Senseless."

Sauseda faults the trial court for acknowledging that he committed a senseless act with a gun,

asserting this shows the court improperly relied on his use of a gun to increase his sentence.

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¶ 15 A trial court is not required to refrain from any mention of sentencing factors that

constitute elements of the offense. People v. Jones,

(1998). Sentencing

hearings do not occur in a vacuum and the duty to impose a fair sentence entails an explanation

of the court's reasoning in the context of the offenses of which a defendant has been convicted. A

fair sentence is not just the product of mechanically tallying factors in aggravation and mitigation

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

to communicate its views regarding the defendant's conduct and thus we do not agree that a trial

judge's commentary on the nature and circumstances of a defendant's crimes necessarily results

in improperly using elements of the offense as factors in aggravation.

¶ 16 When read in context, the trial court's comments here do not show the court improperly

imposed sentence based primarily on the fact that Sauseda shot someone with a gun. As the State

points out, the court determined Sauseda's sentence based on the nature and circumstances of this

case, including the fact that the victim was merely sitting in the passenger seat of a car that was

stopped at a red light when Sauseda walked up to the van and opened fire. The court properly

recognized that Sauseda committed a senseless act of violence on defenseless victims, an act he

chose to commit despite knowing the probable, deadly consequences.

¶ 17 A reasoned judgment regarding the proper penalty to be imposed must be based on the

particular circumstances of each case. People v. Saldivar,

(1986). Relevant

factors for the trial court's consideration include the defendant's demeanor, habits, age, mentality,

credibility, general moral character, social environment, and the nature and circumstances of the

offense.

. Certain types of criminal conduct may warrant a more severe penalty than

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other conduct, even though both are punishable under the same statute.

. In fact, the

severity of the sentence depends upon the degree of harm inflicted on the victim and as such may

be considered as an aggravating factor in imposing the sentence, even where serious bodily harm

is implicit in the offense.

As relevant to this case, it is permissible for the sentencing court to

consider the force employed and the physical manner in which the victim's death was brought

about in a conviction for murder.

.

¶ 18 Here Sauseda, armed with a gun, took deliberate aim at two men sitting in a car and fired

several shots at close range. The trial court properly considered the degree and gravity of this

conduct and the nature and circumstances of Sauseda's offense in imposing sentence. See

(stating that a trial court's finding in aggravation may be directed at the gravity of the

defendant's conduct, but not on the end result of the defendant's conduct, i.e., the victim's death).

The record here does not establish that the court improperly considered an element of the

offenses as an aggravating factor in sentencing.

¶ 19 With respect to Sauseda's second issue—the trial court's claimed failure to consider

mitigating factors—a trial court has broad discretion to determine an appropriate sentence, and a

reviewing court may reverse only where the trial court has abused that discretion. People v.

Patterson,

(2005). The reviewing court should not substitute its judgment for

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

differently. People v. Alexander,

(2010). A sentence within the statutory

range does not constitute an abuse of discretion unless it varies greatly from the purpose of the

law or is manifestly disproportionate to the nature of the offense. People v. Henderson, 354 Ill.

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App. 3d 8, 19 (2004). Where mitigating evidence is presented to the trial court, it is presumed,

absent some indication to the contrary, other than the sentence itself, that the court considered it.

People v. Benford,

(2004). The trial court is not obligated to reduce a

sentence from the maximum allowed simply because mitigating factors are present. People v.

Pippen,

(2001).

¶ 20 From the trial court's statements at Sauseda's sentencing, it is clear the court thoughtfully

weighed the appropriate mitigating and aggravating factors and sentenced Sauseda to a term

within the permissible sentencing range. Nevertheless, Sauseda maintains that his sentence is

excessive as (1) his entire criminal history consisted of a single conviction for DUI, (2) the

conduct resulted from circumstances unlikely to recur, (3) even under the minimum sentence, he

would be 75 years old when released, (4) his daughter will be deprived of her father's presence,

and (5) he had substance abuse problems. But defense counsel raised the first four factors to the

court in his argument and the fifth factor is reported in the PSI. There is thus nothing in the

record rebutting the presumption that the court considered them. Benford,

. We thus presume the court considered these factors in rendering its decision.

¶ 21 Sauseda further argues that the trial court erred in considering his general background,

i.e., his growing up without a father figure, obtaining his GED, and graduating from the Coyne

Institute, as an aggravating factor instead of a mitigating factor. But a fair reading of the record

does not show that the court treated Sauseda's background as an aggravating factor. Instead, the

court simply noted that Sauseda had opportunities to be successful that he squandered, an

observation that appears to be entirely accurate. Essentially, Sauseda asks us to reweigh the

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factors relevant to his sentence, which is not a proper exercise for a court of review. See People

v. Stacey,

(2000) (reviewing court must not substitute its judgment for that

of the trial court simply because it would have weighed aggravating and mitigating factors

differently).

¶ 22 Finally, Sauseda asserts that, in imposing the sentence, the court gave no consideration to

the financial costs of incarcerating him in the Illinois Department of Corrections for so many

years. See 730 ILCS 5/5-4-1(a)(3) (West 2008) (sentencing court "shall" "consider the financial

impact of incarceration based on the financial impact statement filed with the clerk of the

court"). But a trial court is not required to specify on the record the reasons for a defendant's

sentence, and, absent evidence to the contrary, the trial court is presumed to have performed its

obligations and considered the financial impact statement before sentencing a defendant. People

v. Canizalez-Cardena,

. Here, Sauseda points to nothing in the

record to rebut the presumption that the trial court considered the financial impact statement

before sentencing him, and we thus presume the court acted in accordance with the law when it

sentenced him to 62 years in prison.

¶ 23 Because of the conclusions we reach regarding the propriety of Sauseda's sentence, we

necessarily reject his claim that trial counsel was ineffective for failing to preserve his sentencing

arguments as those arguments would not have produced a different result.

¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 25 Affirmed.

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