SECOND DIVISION October 18, 2016

No. 1-14-1251

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 11 CR 17491 ) ROMARO TAYLOR, ) Honorable ) Luciano Panici, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Pierce concurred in the judgment and opinion.

OPINION

¶1 Following a 2014 jury trial, defendant Romaro Taylor was convicted of attempted murder

and aggravated battery with a firearm and sentenced as a Class X offender to 36 years of

imprisonment. On appeal, he argues that (1) the trial court erred in refusing to instruct the jury

on defense of others, (2) trial counsel was ineffective for failing to request a jury instruction that

Taylor could not be found guilty of attempted first degree murder if he unreasonably believed he

needed to use force in defense of others, (3) the trial court erroneously refused to sentence Taylor

as a Class 1 offender on his attempted murder conviction, and (4) the trial court improperly

imposed certain fines and fees. For the reasons that follow, we affirm Taylor's conviction, vacate

the $2 Public Defender Automation Fee, and remand for resentencing.

¶2 BACKGROUND No. 1-14-1251

¶3 On December 20, 2010, Taylor shot his then-girlfriend, Lashae Depratto, after her car hit

his ex-girlfriend's car, in which Taylor's seven-year-old daughter was a passenger. Depratto and

an eyewitness identified Taylor as the shooter, but he evaded arrest until September 2011.

Following his arrest, Taylor was charged with, inter alia, attempted first degree murder and

aggravated battery with a firearm.

¶4 At a March 2014 jury trial, Depratto testified that on December 20, she drove Taylor to

his mother's house on 8th Avenue in Phoenix, Illinois because Taylor's niece was coming over to

pick up clothes. Once they arrived at the house, Taylor went inside, but he asked Depratto to

leave because his mother did not like her. Depratto did not leave, but remained in her car, which

was parked on the west side of the street directly in front of Taylor's mother's house, for

approximately 20 minutes. She then went to the front door of the house and asked Taylor if she

could use the bathroom. Taylor allowed her inside, and the two then argued over Depratto's

request that Taylor return his set of keys to her house and car. During their exchange, Taylor's

niece and his daughter arrived, having been driven over by Erica Braxton, Taylor's ex-girlfriend

and mother of his child. Braxton did not come into the home, but waited in her car, which was

parked on the east side of 8th Avenue, across from Taylor's mother's house.

¶5 Eventually, Depratto obtained her keys from Taylor and left the house, but instead of

driving home, she circled the block. As she approached Taylor's mother's house, driving

southbound, she saw Taylor leaning inside Braxton's car "fondling" and "playing" with her.

Angered, Depratto drove past them, but then made a U-turn and drove northbound on the east

side of 8th Avenue. When she returned to the scene, Taylor was no longer standing by Braxton's

car. As Depratto neared Braxton's car, she testified that she swerved to avoid a pothole or speed

bump (though there was no evidence of either near the site of the occurrence) and sideswiped the

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driver's side of Braxton's car. The collision caused Depratto's right axle and tire to "break" and

her airbags to deploy. Additionally, the front bumper of Braxton's car was pulled off. When

Depratto's car came to a stop in front of Braxton's vehicle, Depratto put the car in park, turned it

off, and tried, unsuccessfully, to restart it. She then heard Taylor say either "bitch you tried to

kill my kid," or "bitch you trying to kill my kid." When Depratto turned her head, Taylor had

emerged from his mother's yard, 10 feet away, and was approaching her car with a gun in his

hand. As Taylor stood at her closed car window, he shot at Depratto three times, hitting her arm

as she raised her hands to cover her face. She was eventually taken to the hospital and treated for

her injuries.

¶6 On cross-examination, Depratto admitted telling investigators who spoke to her while she

was hospitalized that she was upset at Taylor because she believed he and Braxton were talking

about her behind her back. Although she denied telling investigators that she was driving 30 to

35 miles per hour when she collided with Braxton's parked car, she was impeached on this point

by the stipulated testimony of Investigator Paul Jimos and Detective Sergeant Valadez of the

Phoenix police department, who interviewed her on December 23, 2010.

¶7 At the jury instruction conference following the conclusion of testimony, Taylor sought

an instruction that he was acting in defense of others, which the court declined to give, stating:

"The [d]anger had subsided. There was no more danger. When the car stopped, the car wasn't

going anywhere. So at that point in time self defense is no longer available. So I'm not giving

them the self defense instruction or *** the defense of others ***."

¶8 The jury ultimately convicted Taylor of attempted first degree murder and aggravated

battery with a firearm, and the court merged the two convictions for sentencing purposes.

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¶9 A defendant convicted of attempted first degree murder is generally subject to Class X

sentencing (720 ILCS 5/8-4(c)(1) (West 2012)), but at Taylor's sentencing hearing, defense

counsel argued that he should be sentenced as a Class 1 offender pursuant to section 8-4(c)(1)(E)

of the Criminal Code, which reads:

"[I]f the defendant proves by a preponderance of the evidence at sentencing that,

at the time of the attempted murder, he or she was acting under a sudden and

intense passion resulting from serious provocation by the individual whom the

defendant endeavored to kill, or another, and, had the individual the defendant

endeavored to kill died, the defendant would have negligently or accidentally

caused that death, then the sentence for the attempted murder is the sentence for a

Class 1 felony." 720 ILCS 5/8-4(c)(1)(E) (West 2012).

The trial court found this section inapplicable because it did not believe that had Depratto died,

Taylor's conduct could have been described as accidental or negligent. Alternatively, the court

found that Taylor was not acting under a "sudden and intense passion." The court sentenced

Taylor to 36 years of imprisonment. Taylor unsuccessfully moved to reconsider his sentence.

¶ 10 ANALYSIS

¶ 11 We first address the claimed error in the jury instructions. Taylor contends that the trial

court erred in refusing to instruct the jury on defense of others, which is an affirmative defense

requiring some evidence that (1) unlawful force was threatened against defendant or others, (2)

defendant was not the aggressor, (3) the danger of harm was imminent, (4) the use of force was

necessary, (5) defendant subjectively believed a danger existed requiring the use of force

applied, and (6) defendant's belief was objectively reasonable. See People v. Jeffries,

(1995); 720 ILCS 5/7-1(a)( West 2012)). The overarching question is whether the

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defendant's subjective belief in the necessity of using deadly force was reasonable under the

circumstances. People v. Holman,

, ¶ 58. A defendant is entitled to a

self-defense or defense of others instruction so long as there is slight evidence adduced at trial to

support his theory. People v. Lee,

(2004).

¶ 12 Our supreme court has expressed divergent views as to what standard of review we apply

to a trial court's refusal to give a specific jury instruction. Compare People v. Everette,

(1990) (applying de novo standard of review to issue of whether defendant was

entitled to jury instructions on self-defense) and People v. Washington,

(reviewing de novo trial court's refusal to instruct jury on second degree murder), with People v.

Mohr,

(2008) (reviewing trial court's decision to give instruction defining

provocation for abuse of discretion) and People v. Jones,

(2006) ("The giving of

jury instructions is a matter within the sound discretion of the trial court."). This court has

examined this conflict in recent cases and determined that abuse of discretion is the appropriate

standard of review. See, e.g., People v. Cacini,

; People v.

Gibson,

(2010) (abrogated on other grounds by People v. Bailey,

); People v. Couch,

(2008); see also People v.

Boston,

(distinguishing Everette and Washington but

finding outcome was same under either abuse of discretion or de novo review). We reach the

same conclusion.

¶ 13 In Everette, the first case to apply a de novo standard of review to a trial court's jury

instructions, the supreme court relied on People v. Lockett,

(1980), for the

proposition that "[i]t is a matter of law whether the defendant has met the evidentiary minimum

entitling him to instructions on an affirmative defense."

. But in Lockett, the

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supreme court stated only that it was the duty of the trial court to determine if there was any

evidence tending to show that the defendant had a subjective belief that the use of force was

necessary, while it was for the jury to decide if that subjective belief was reasonable or

unreasonable. Lockett,

. The Lockett court then noted that it could conceive

of no circumstance in which the trial court could take that question from the jury and determine,

as a matter of law, that defendant's subjective belief in the need to use force was reasonable

rather than unreasonable.

. This conclusion does not support a de novo standard of

review for the more general issue of whether the evidence is sufficient to support the giving of a

jury instruction. See People v. Boston,

.

¶ 14 Our supreme court repeated the Everette standard in People v. Washington,

. But the issue in Washington was whether a trial court that instructs the jury on

self-defense is required, as a matter of law, to further instruct the jury on second degree murder.

Id. ¶ 56. This is clearly a legal question calling for de novo review. In contrast, here, the issue is

whether there is sufficient evidence to support a defense of others instruction, which is a question

of fact, not of law. See Cacini,

, ¶ 46. As such, an abuse of discretion

standard of review is appropriate. Id.

¶ 15 Abuse of discretion is the most deferential standard of review, second only to no review

at all. People v. Holman,

(2010). An abuse of discretion occurs when

the trial court's decision is "fanciful, arbitrary, or unreasonable to the degree that no reasonable

person would agree with it." People v. Ortega,

(2004). Stated differently,

we will reverse a trial court's decision for an abuse of discretion only where the decision is

"'clearly against logic,' 'without employing conscientious judgment.'" Couch,

(quoting Long v. Mathew,

(2008)).

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¶ 16 We cannot say the trial court's conclusion was illogical or evinced a lack of judgment.

Depratto testified that her car was inoperable after the crash, as her airbags had deployed and her

right axle was broken. Her attempt to restart it was unsuccessful. Thus, she no longer posed a

danger to Taylor's daughter. Taylor contends on appeal that from his vantage point ten feet away

from the scene of the crash, he was unaware that Depratto was unable to start her car and cause

further injury. But because Taylor did not testify, we do not know what he saw or could see.

Accordingly, it was not unreasonable for the trial court to disregard this speculative argument.

Finally, the fact that Taylor yelled that Depratto was "trying to" or "tried to" "kill [his] kid," in

light of the other evidence, does not support Taylor's contention that harm was imminent. The

car had stopped, the airbags had deployed, and there was no immediate danger that Depratto

would (or could) restart it. Even if Taylor could not discern the condition of the vehicle from ten

feet away, when he stood five to six inches from Depratto's window and shot at her, he surely

knew that the threat had passed as the evidence showed she put her hands up in a defensive

posture. For these reasons, we conclude that the trial court did not abuse its discretion when it

declined to instruct the jury on defense of others. See People v. Dillard,

(2001) (right of self-defense does not permit a defendant to act in retaliation or "to pursue

and inflict injury upon an initial aggressor after the aggressor abandons the altercation").

¶ 17 Taylor next challenges his counsel's performance with regard to tendering jury

instructions, contending that counsel should have sought a non-IPI instruction that if the jury

found he had an unreasonable belief in the need to use force, it should acquit him of attempted

first degree murder. A claim of ineffective assistance requires a defendant to demonstrate (1)

that counsel's performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that the outcome of the proceeding would have been different but for

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counsel's errors. People v. Ramsey,

(2010) (citing Strickland v. Washington,

(1984)). " 'The benchmark for judging any claim of ineffectiveness must

be whether counsel's conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.' " People v. Albanese,

(1984) (quoting Strickland,

).

¶ 18 Taylor's argument is premised on his belief that Illinois law allows a defendant who is

acting in imperfect self-defense to escape responsibility for attempted first degree murder. But

the law is not so clear. In People v. Reagan,

(1983), our supreme court held

that the offense of attempted voluntary manslaughter did not exist in Illinois because a defendant

cannot intend to kill without lawful justification while simultaneously having an unreasonable

belief in the need to use force in self-defense. See also People v. Lopez,

(1995) (applying logic of Reagan to conclude that Illinois law does not recognize offense of

attempted second degree murder). From this, however, it does not necessarily follow that a

defendant who has an unreasonable belief in the need to use force cannot be convicted of

attempted first degree murder. Indeed, shortly after Taylor's trial concluded, this court rejected

that very proposition. See People v. Guyton,

(affirming

defendant's conviction for attempted first degree murder notwithstanding that evidence

demonstrated he was acting in imperfect self-defense).

¶ 19 But in light of our holding that the trial court did not err in finding there was not even

slight evidence supporting an instruction on defense of others, we need not resolve this issue.

Absent evidence tending to show that Taylor was acting in defense of others, he cannot be

entitled to an instruction premised on a finding that his belief in the need to defend others was

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unreasonable. Thus, Taylor's claim that counsel was ineffective for failing to seek such an

instruction fails.

¶ 20 Next, Taylor alleges error in the trial court's refusal to consider sentencing him as a Class

1 offender pursuant to section 8-4(c)(1)(E) of the Criminal Code, which we have quoted above.

The trial court found this section inapplicable, reasoning that "as you read the statute itself, the

very last part which basically, had the individual defendant therefore killed, the defendant would

have negligently or accidentally caused the death. There's no negligent or accidentally here." In

other words, the trial court understood the statute to require Taylor to prove that he intentionally

attempted to kill Depratto due to serious provocation, but that, had he been successful, the killing

would have been deemed negligent or accidental. Taylor argues, and the State concedes, that

this interpretation is incorrect. We agree.

¶ 21 Resolution of this issue is a matter of statutory interpretation, which presents a question

of law that we review de novo. People v. Chapman,

. Any interpretation of

a statute necessarily begins with the understanding that our primary role is to give effect to the

intent of the legislature.

The best indication of legislative intent is the language of the statute

itself, and if that language is clear on its face, it is unnecessary to resort to other aids of

construction. Brucker v. Mercola,

(2007).

¶ 22 Here, the statutory language clearly addresses two separate scenarios. First, it addresses

the scenario where the defendant attempts to kill the one who provoked him, and second, it

addresses the "transferred intent" scenario where the defendant specifically intends to kill his

provoker, but instead takes a substantial step towards killing another, whose death, had it

occurred, would have been deemed negligent or accidental. Under either circumstance, provided

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that the defendant was seriously provoked and acting under intense passion, he is entitled to a

classification reduction for sentencing purposes.

¶ 23 The trial court's interpretation would make it impossible for a defendant convicted of

attempted murder to obtain a reduction in classification based on provocation and render the

statute meaningless. Attempted murder requires a showing that a defendant had the specific

intent to kill (see People v. Hill,

(1995)), which is fundamentally

incompatible with the statutory language providing that if the defendant's victim died, the death

would have been deemed negligent or accidental. Taylor's interpretation of the statute as

referring both to the situation where the defendant attempts to kill his provoker as well as the

separate situation where the defendant negligently or accidentally acts against another in his

attempt to kill his provoker better conforms to legislative intent. See Valfer v. Evanston

Northwestern Healthcare,

("We will *** avoid a construction of a statute

that renders any portion of it meaningless.").

¶ 24 But this conclusion does not end our inquiry, as the trial court alternatively held that

Taylor was not acting under a sudden and intense passion so as to entitle him to a classification

reduction in any event. We review the trial court's sentencing decision for an abuse of discretion.

People v. Fern,

(1999).

¶ 25 In reaching its decision, the trial court reasoned "There was no intense passion. The

vehicle was stopped. The vehicle wasn't moving. He initially saw her trying to start it, but the

vehicle didn't start. The vehicle didn't move. He went there and shot her." But the fact that the

car was stopped, while relevant to the inquiry of whether danger was ongoing for purposes of

self-defense or defense of others, has no bearing on whether Taylor was "acting under a sudden

and intense passion." Instead, the passion under which Taylor acted stemmed from witnessing

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Depratto drive her car at a speed of 30 to 35 miles per hour into the car carrying his daughter.

Taylor evinced this passion by exclaiming "you tried to kill my kid," as he ran from his mother's

yard to shoot Depratto. These events took place in quick succession, leaving little time for

Taylor's anger to subside. While we are mindful of the deference we owe to the trial court's

findings on issues of fact, the evidence leads us to conclude that Taylor was indeed acting under

a sudden and intense passion when he shot Depratto, and the trial court's decision to the contrary

was an abuse of discretion. See People v. Rivera,

, ¶ 37 (trial court abuses its

discretion where decision is "arbitrary, fanciful, or unreasonable to the degree that no reasonable

person would agree with it").

¶ 26 Of course, the fact that Taylor was impassioned, standing alone, is insufficient to entitle

him to a classification reduction. See 720 ILCS 5/8-4(c)(1)(E) (West 2012) (requiring showing

of serious provocation); cf. People v. Garcia,

(1995) ("[P]assion on behalf of

the defendant, no matter how violent, will not relieve the defendant of culpability for first degree

murder unless it is engendered by provocation which the law recognizes as reasonable."). The

parties dispute whether Taylor made the requisite showing under the statute that he was seriously

provoked by Depratto. However, because the trial court (erroneously) concluded that Taylor was

not acting under a sudden and intense passion, it did not reach the issue of provocation. Nothing

herein should be considered as an indication of what the finding should be on the issue of

provocation. Therefore, we remand for the trial court to make this factual determination in the

first instance. See People v. Tramble,

(remanding for trial

court to make factual findings in accordance with correct interpretation of statute).

¶ 27 Finally, Taylor challenges certain fines and fees the court imposed. Specifically, Taylor

contends that the imposition of the $2 Public Defender Records and Automation Fee (55 ILCS

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5/3-4012 (West 2012)), and the $2 State's Attorney Record Automation Fee (55 ILCS 5/4-

2001.1(c)(West 2012)), violates the prohibition on ex post facto laws, as both assessments were

enacted in 2012, after Taylor committed these crimes.

¶ 28 As noted, Taylor did not challenge any of the fines and fees imposed by the trial court at

the time of sentencing. The State has addressed the merits of Taylor's argument despite the

forfeiture. Had the State argued forfeiture, we would have been hard-pressed to overlook it,

given the insubstantial nature of the fees assessed. See Ill. Sup. Ct. R. 615(a) ("Any error,

defect, irregularity, or variance which does not affect substantial rights shall be disregarded.").

And the rubric typically employed by appellate counsel – that the judgment imposing allegedly

improper fines and fees is void – is no longer viable in light of People v. Castleberry,

(abrogating rule that sentence not conforming to statutory requirements is void).

We encourage trial counsel to address such claimed errors in the trial court instead of risking

forfeiture on appeal. But because the State did not argue forfeiture in this case, we will address

the claims on their merits.

¶ 29 We have previously held that the ex post facto doctrine does not apply to these

automation fees, because they are compensatory rather than punitive. See People v. Rogers,

("'The prohibition against ex post facto laws applies only to laws

that are punitive.'") (quoting People v. Dalton,

(2010)); see also People

v. Reed,

, ¶¶ 16-17 (automation fees are compensatory). While Taylor

argues that the automation charges are fines – not fees – he cites no authority for that

proposition, and thus we conclude that the ex post facto doctrine does not prohibit the assessment

of these charges.

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¶ 30 Nevertheless, as the State notes, because Taylor was represented by private counsel

during trial, the $2 Public Defender Records Automation Fee is inapplicable, and we vacate the

same.

¶ 31 Taylor also challenges the $25 Court Services Fee, contending that it is inapplicable to

him. But this contention is based on a misreading of the statute, which provides, in relevant part:

"In criminal, local ordinance, county ordinance, traffic and conservation cases,

such fee shall be assessed against the defendant upon a plea of guilty, stipulation

of facts or findings of guilty, resulting a judgment of conviction, or order of

supervision, or sentence of probation without entry of judgment pursuant to

Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled

Substances Act, Section 70 of the Methamphetamine Control and Community

Protections Act, Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 of the

Criminal Code of 1961 or the Criminal Code of 2012, Section 10-102 of the

Illinois Alcoholism and Other Drug Dependency Act, Section 40-10 of the

Alcoholism and Other Drug Abuse and Dependency Act, or Section 10 of the

Steroid Control Act." 55 ILCS 5/5-1103 (West 2012).

¶ 32 Taylor argues that because he was not convicted under the enumerated provisions of the

specified acts, his fee was improperly assessed. But we have rejected this reading of the statute,

noting "It is clear that the statute permits assessment of this fee upon any judgment of conviction,

but also permits such assessment for orders of supervision or probation, made without entry of a

judgment of conviction, for certain limited and enumerated criminal provisions." People v.

Williams,

(emphasis added); see also People v. Anthony, 2011

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IL 091528-B, ¶¶ 26-27. We see no reason to depart from these holdings, and conclude that the

court services fee was properly assessed against Taylor.

¶ 33 CONCLUSION

¶ 34 For these reasons, we affirm Taylor's conviction, vacate the $2 Public Defender Records

Automation Fee, and remand for resentencing on the attempted murder conviction.

¶ 35 Conviction affirmed; remanded for resentencing.

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