FILED October 19, 2017

Carla Bender 4th District Appellate NO. 4-16-0853 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County MARCUS A. JOHNSON, ) No. 14CF383 Defendant-Appellant. ) ) Honorable ) Heidi N. Ladd, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Harris concurred in the judgment and opinion.

OPINION ¶1 In May 2016, defendant, Marcus A. Johnson (born September 28, 1996), waived

his right to juvenile court jurisdiction and entered into an open guilty plea to aggravated robbery.

See 705 ILCS 405/5-130(b)(i) (West 2014); 720 ILCS 5/18-1(b)(1) (West 2014). In July 2014,

the trial court sentenced defendant to a term of 24 years’ imprisonment, followed by a two-year

term of mandatory supervised release (MSR). In September 2014, the court denied defendant’s

motion to reconsider the sentence but, on its own motion, reconsidered that denial in October

2014. Accordingly, in October 2014, the court sentenced defendant to a term of 16 years’

imprisonment followed by a two-year term of MSR.

¶2 Defendant appealed, and this court docketed the case as No. 4-14-0869 and

entered an order summarily remanding for strict compliance with Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016). Defendant thereafter filed a second motion to reconsider his sentence,

which the trial court denied.

¶3 Defendant appeals, arguing that the trial court erred by considering, as an

aggravating factor at sentencing, that defendant indicated he had a firearm, which was a factor

inherent in the offense of aggravated robbery. For the following reasons, we affirm.

¶4 I. BACKGROUND

¶5 A. Guilty Plea

¶6 On May 16, 2014, defendant waived juvenile court jurisdiction and entered an

open plea to a count of aggravated robbery. The factual basis showed the charge arose out of a

March 2014 incident in which two teenaged males, later identified as defendant and his co-

defendant (Erion Davis-Murdock), forced their way into Rebecca Runge’s residence. Runge’s

daughter responded to a knock at the door, and one of the males pushed his way into the home

and walked through the living room. The other male pushed Runge’s daughter onto the couch,

grabbed a cordless telephone from her, and pointed what she perceived to be a gun at her

forehead.

¶7 Runge, aged 71, heard a loud noise and male voices, which drew her to the front

room of the residence where she saw the two males yelling at her daughter. Runge’s daughter

grabbed a cordless telephone to call the police and one of the males, Davis-Murdock, took the

phone from her. Runge then went into the bathroom to call the police on her red, flip-style

cellular phone. One of the males, later identified as defendant, came into the bathroom, displayed

what Runge perceived to be a small black gun, and took the cellular phone from her. Defendant

was found two blocks away, hiding under a pickup truck where officers also found Runge’s red,

-2- flip-style cellular phone. Officers never located guns, ammunition, or objects that appeared to be

guns or ammunition.

¶8 The trial court found a factual basis and accepted defendant’s guilty plea to one

count of aggravated robbery. The court noted the charge was a Class 1 felony eligible for

extended-term sentencing because the felony was committed against a person over the age of 60.

¶9 B. Sentencing Hearing

¶ 10 In July 2014, the trial court held a sentencing hearing. Prior to the hearing,

defendant submitted additions to the presentence investigation report (PSI), which the court

stated it considered in making its sentencing determination. Those documents disclosed that

defendant was born with cocaine in his system and went to live with his adoptive mother at

seven days old. In 2009, defendant’s adoptive father and sister passed away. A 2011 psychiatric

evaluation indicated past sexual abuse, but defendant declined to discuss the incident. Defendant

was diagnosed with attention deficit hyperactivity disorder, but he did not take his medication

regularly. Another 2011 mental-health assessment indicated defendant had ongoing mental-

health issues and at times heard voices calling to him when he was angry. Defendant reported his

involvement with a gang and struggled with choosing between gang influences and making good

choices.

¶ 11 The PSI showed defendant was adjudicated in 2011 for possessing cannabis with

the intent to sell on school grounds in Champaign County case No. 11-JD-37. Defendant was

sent to the Department of Juvenile Justice on an interim commitment. That order was vacated in

July 2011, and defendant was placed on probation. One month later, the State filed a petition to

revoke defendant’s probation. Defendant failed to appear at the hearing to revoke his probation,

but he was eventually apprehended on a warrant. His probation was revoked and he was

-3- resentenced to the Department of Juvenile Justice. Defendant was also sentenced to the

Department of Juvenile Justice for a 2012 burglary charge (Champaign County case No. 12-JD-

17) and a 2013 criminal damage to property charge (Champaign County case No. 13-JD-60).

¶ 12 At the sentencing hearing, the State introduced into evidence three letters

defendant wrote in April 2014 while a detainee of the juvenile detention center. The letters

contained various references to defendant’s gang, “Only the Dawgz.” In one of the letters,

defendant asked the intended recipient to pass along gang-related threats. The letters also

contained references to the news coverage of defendant’s case and comments about the crime.

For example, in one letter, defendant wrote, “An[d] you know me an[d] my lil’ brother made the

news paper!!! Ask my mom[,] it was saying how we put guns to the family head and shyt [sic]

but stuff happens.” Defendant also asked the intended recipients of the letters to post threats and

messages of support on social media.

¶ 13 Officer Timothy Atteberry testified that he acted as the juvenile officer the night

defendant was arrested and sat in while police interviewed defendant. Following the interviews,

Atteberry transported defendant and Davis-Murdock to the juvenile detention center. The State

played an audio and video recording of defendant and Davis-Murdock while Atteberry

transported them. The recording, made a few hours after the offenses were committed, depicts

defendant and Davis-Murdock laughing, joking, and making gang references.

¶ 14 The State argued that defendant had little rehabilitative potential, pointing to his

prior offenses, continued criminality, and escalation of violence. The State emphasized the

seriousness of the offense and the impact it had on Runge and her daughter. Based on the

recording and defendant’s intercepted letters after his arrest, the State argued he showed no

-4- remorse and intended to continue his gang affiliation and activity. Accordingly, the State asked

for an extended-term sentence of 24 years’ imprisonment.

¶ 15 Counsel for defendant emphasized the fact he was only 17 years old and argued

that Davis-Murdock was the leader on the night they entered Runge’s home. Counsel argued that

the commission of the crime and the laughing and joking afterward was bravado and not who

defendant truly was. Defendant had been in the detention center for three months and reports

showed he was behaving himself. Counsel asserted defendant’s life had been tumultuous, having

been adopted at seven days old but maintaining contact with his biological parents. Counsel also

noted the loss of defendant’s adoptive father and sister in 2009. Defendant was not a member of

a gang but had a close group of friends who decided to give their clique a name. Counsel asked

for a minimal sentence.

¶ 16 The trial court stated, in part, it considered all relevant statutory factors, including

(1) the nature and circumstances of the offense and (2) the evidence and applicable factors in

aggravation and mitigation. The court engaged in a lengthy discussion regarding defendant’s

prior criminal history, his opportunities and upbringing, his attitude, and his gang membership.

The court then turned to the nature and circumstances of the offense and noted defendant and

Davis-Murdock forced their way into a 71-year-old woman’s home. The court discussed the

offense as follows:

“They then confronted first the daughter. When she attempted to

call for help, they grabbed the phone from her. This defendant was

the one who pushed her down on the sofa. There is nothing in the

factual basis that he attempted to stop what was going on or to

withdraw or that he was reluctant. He was an active participant. He

-5- pointed the gun at her forehead. She believed it was a real gun. The

weapons were never recovered, although the conversation

references to the weapons in the notes certainly make it sound like

they existed, whatever they were, real or not, and in this case since

he pled guilty to aggravated robbery, I will consider only that he

acted like he had a weapon. But it for all purposes appeared real to

the victims. And this gun was literally pointed at the forehead first

of the fifteen year old and then at Mrs. Runge while she was trying

to go back to the bathroom to check on her granddaughter and call

on a different phone for help.”

¶ 17 The trial court noted defendant showed no remorse in his conduct following the

offense, laughing and joking in the squad car and then writing letters that threatened future gang-

related retaliation and violence. The court observed defendant appeared enamored with the gang

lifestyle and described him as “riveted” and “rather self satisfied” while watching the video from

the squad car. The victim impact statements showed how terrified Runge and her daughter were

by the incident.

¶ 18 Finally, the trial court stated that the factors in aggravation far outweighed those

in mitigation. Although defendant’s age was a factor in mitigation, his criminal history, including

four felony convictions of increasing seriousness, weighed against this factor. The court then

said, “He did threaten—his conduct did threaten violence. Well, that’s inherent in the charge.

The fact that it was visited upon the victims in their own home is not, and that’s a factor in

aggravation.” The court found defendant was likely to engage in similar dangerous behavior

-6- based on his attitude and his embrace of his lifestyle. The court found an extended-term sentence

appropriate and sentenced defendant to a term of 24 years’ imprisonment.

¶ 19 Defendant timely filed a motion to reconsider his sentence. At the September 3,

2014, hearing on the motion to reconsider defendant’s sentence, the trial court made the

following relevant comments: “[T]he [c]ourt considered the fact that this happened in the home.

*** [N]o gun or ammunition were ever found, and neither suspect discharged, fired[,] or loaded

any weapon. And so, the [c]ourt did not consider that beyond what would define the elements of

the offense.” The court also stated, “the suggestion that there may not have been a gun and that,

simply, the [d]efendant was indicating by his actions he had a gun to the victims is exactly what

he pled guilty to and that’s exactly what he was sentenced for.”

¶ 20 C. Remaining Procedural History

¶ 21 We summarize the following procedural background necessary to resolve a

jurisdictional argument raised by the State:

On July 17, 2014, following the guilty plea and sentencing,

defendant timely filed a motion to reconsider his sentence.

On September 3, 2014, following a hearing, the trial court

denied defendant’s motion to reconsider the sentence.

On September 4, 2014, defendant filed a notice of appeal

(identifying the May 16, July 2, and July 17 judgments), which this

court docketed as No. 4-14-0782.

On September 26, 2014, the trial court notified the parties

of its intent, in light of defendant’s codefendant receiving a 12-

year sentence, to reconsider the September 3, 2014, denial of

-7- defendant’s motion to reconsider. The court wished to reconsider

the denial of the motion to reconsider the sentence based on Davis-

Murdock’s negotiated plea for 12 years’ imprisonment for the

same offense. Accordingly, on the court’s own motion, the matter

was set for further hearing on October 2, 2014. The court further

directed the office of the State Appellate Defender to withdraw the

appeal in case No. 4-14-0782 to allow jurisdiction to return to the

trial court.

On September 29, 2014, this court allowed defendant’s

motion to dismiss the appeal in case No. 4-14-0782. On September

30, 2014, the appellate court mandate was filed in the circuit court.

On October 2, 2014, the trial court held a hearing to

reconsider the September 3, 2014, denial of defendant’s motion to

reconsider the sentence. That same day, the court entered an

amended judgment sentencing defendant to 16 years’

imprisonment and a 2-year term of MSR.

On October 3, 2014, defendant filed a notice of appeal

(identifying the October 2 sentencing judgment), which this court

docketed as No. 4-14-0869.

On May 24, 2016, the trial court entered a second amended

judgment sentencing defendant to 24 years’ imprisonment. The

record contains no related transcripts or motions.

-8- On August 1, 2016, this court, based on defendant’s agreed

motion for summary remand, remanded the matter to the trial court

for strict compliance with Illinois Supreme Court Rule 604(d) (eff.

Mar. 8, 2016).

On August 26, 2016, defendant filed a second motion to

reconsider his sentence.

In September 2016, following a hearing on the second

motion to reconsider the sentence, the trial court denied the motion

and entered a third amended judgment sentencing defendant to 16

years’ imprisonment and a 2-year term of MSR. That same month,

defendant filed a notice of appeal in the present case, which this

court docketed as No. 4-16-0853.

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 On appeal defendant argues the trial court erred by considering, as an aggravating

factor at sentencing, that defendant indicated he had a firearm, which was a factor inherent in the

offense of aggravated robbery. We turn first to a jurisdictional issue raised by the State.

¶ 25 A. Jurisdiction

¶ 26 The State contends defendant’s September 4, 2014, notice of appeal (docketed as

No. 4-14-0782) deprived the trial court of jurisdiction to reconsider the denial of the motion to

reconsider sentence and enter the October 2014 amended sentencing order. According to the

State, the dismissal of appeal No. 4-14-0782 did not return jurisdiction to the trial court because

this court did not specifically remand the matter back to the trial court. Based on this lack of

-9- jurisdiction to enter the October 2, 2014, order, the State asserts the order was void and asks this

court to vacate it. However, the State argues that this court had jurisdiction over appeal No. 4-14-

0869, which was filed October 3, 2014, because that was the thirtieth day following the trial

court’s September 3, 2014, denial of defendant’s motion to reconsider his sentence. After remand

in case No. 4-14-0869 for strict compliance with Rule 604(d), defendant filed another motion to

reconsider his sentence, which the court denied, and defendant again appealed. Therefore, the

State contends this court has jurisdiction over this appeal.

¶ 27 The jurisdictional question before this court is narrow. We must determine

whether the trial court had jurisdiction to enter the October 2, 2014, order where the court, on its

own motion, reconsidered its previous denial of defendant’s motion to reconsider his sentence.

That order was entered within 30 days of the denial of the motion to reconsider defendant’s

sentence—a period during which the court retains jurisdiction. A trial court generally loses

jurisdiction “at the end of the 30-day window following the entry of a final judgment.” People v.

Bailey,

,

.

¶ 28 As noted above, the State contends the dismissal of appeal No. 4-14-0782 did not

return jurisdiction to the trial court because this court did not remand the matter to the trial court.

In support, the State cites Bank of Viola v. Nestrick,

,

(1981),

and People v. Vasquez,

,

(2003). In Bank of Viola, a trial was

held and judgment was entered in favor of the defendant. Bank of Viola,

,

. The bank appealed and the appellate court reversed in an opinion filed on

May 31, 1979, and the mandate from the appellate court was filed in the circuit court on July 30,

1979.

In June 1979, prior to the filing of the mandate (i.e., prior to reinstatement of

jurisdiction in the trial court and while the appellate court retained jurisdiction), the trial court

- 10 - allowed a motion to withdraw as defense counsel.

Apparently based on the appellate court

opinion, although the mandate had not yet been filed, the bank filed a notice to schedule a trial

date.

On July 18, 1979, the trial court held a hearing and set a date for a trial on the merits.

“That the circuit court had proceeded with the withdrawal motion and with the motion to set a

trial date at a time prior to the return of the mandate was apparently the result of clerical error.”

¶ 29 The trial court held a hearing on the merits on September 12, 1979, after the

appellate court mandate was filed in the circuit court, reinstating jurisdiction.

,

. However, the appellate court determined reversal was required because

“significant matters affecting the case were decided by the trial court during a time when it had

no jurisdiction over the case.”

,

. Specifically, the appellate court held

(1) the hearing to set a trial date was held when the court had no jurisdiction, (2) the order

permitting defense counsel to withdraw and the order setting the matter for a trial date were

entered when the circuit court had no jurisdiction, and (3) the “court’s actions, taken when it

ha[d] no jurisdiction over a case, [had] no effect and are null and void.”

,

. Accordingly, the appellate court vacated the trial court’s judgment and reversed and

remanded for further proceedings.

,

.

¶ 30 Unlike Bank of Viola, the present case does not involve actions taken during the

pendency of an appeal. Here, defendant filed a notice of appeal, but then filed a motion to

dismiss the appeal within 30 days after the filing of the circuit court’s final judgment denying the

motion to reconsider defendant’s sentence. Bank of Viola does not address such a situation.

Rather, it focuses on actions taken by the circuit court prior to the filing of the appellate mandate

- 11 - remanding and reinstating jurisdiction in the circuit court. Accordingly, we do not find Bank of

Viola instructive in the present case.

¶ 31 In Vasquez, on May 28, 1996, the trial court denied the defendant’s motion for a

new trial and sentenced the defendant, in absentia, to 19 years’ imprisonment. Vasquez,

,

. The trial court said it would “continue” the case to hear a

motion to reconsider the sentence once the defendant was returned to custody.

Also on May

28, 1996, the defendant filed a timely notice of appeal.

On April 3, 1997, on the State’s

motion, the appellate court dismissed the defendant’s direct appeal.

In July 1999, the

defendant was arrested on an outstanding warrant and the trial court entered judgment on the

1996 sentence.

,

. Thereafter, defense counsel filed motions to

reduce the sentence and for a new trial.

,

. In February 2001, the

court held a sentencing hearing and reduced the defendant’s sentence to 17 years’ imprisonment.

,

. A subsequent motion to reduce or modify the sentence was denied

and, on March 9, 2001, the defendant filed a second notice of appeal.

¶ 32 The Vasquez court determined that the trial court lost jurisdiction upon the May

28, 1996, filing of the first notice of appeal.

,

. Under the fugitive rule,

the appellate court dismissed that appeal on April 3, 1997.

However, “[t]hat dismissal did not,

as [the] defendant implie[d], reinvest the trial court with jurisdiction to hear the series of motions

filed in 1999 upon [the] defendant’s return.”

,

. The appellate court

rejected the defendant’s attempt to rely on the absentia statute (725 ILCS 5/115-4.1(e) (West

2000)), and held the trial court’s February 2001 order reducing the defendant’s sentence was

void for lack of jurisdiction.

,

.

- 12 - ¶ 33 We find Vasquez distinguishable. As discussed above, the Vasquez court held that

the dismissal of an appeal under the fugitive rule almost one year after the filing of the notice of

appeal did not reinvest the trial court with jurisdiction to hear motions filed more than three years

after the defendant’s conviction and sentence became final. In the present case, the appeal was

dismissed within 30 days of the circuit court’s denial of the motion to reconsider defendant’s

sentence. Under these circumstances, we think the dismissal of appeal No. 4-14-0782 and the

subsequent hearing to reconsider the denial of defendant’s motion to reconsider his sentence is

more appropriately treated as a request for reconsideration of a ruling on a postjudgment motion.

When a court denies a postjudgment motion, the final judgment remains intact. Gibson v.

Belvidere National Bank & Trust Co.,

,

(2001). In

such a case, “further motions for reconsideration may be filed within 30 days of the denial, but

they will not stay the time for filing a notice of appeal.”

,

.

¶ 34 Our research has revealed no case that considers a trial court’s jurisdiction over a

matter where an appeal from the denial of a postjudgment motion is dismissed within 30 days of

the entry of the denial. Clearly, if the appeal were dismissed after the expiration of the 30 days

following the denial, the trial court would not have jurisdiction, as in Vasquez. The court’s

motion to reconsider the denial of defendant’s motion to reconsider his sentence is not a timely

postjudgment motion as contemplated by Rule 606(b) (eff. Dec. 11, 2014), where a notice of

appeal is of no effect when a circuit court has continuous jurisdiction because the defendant’s

timely filed postjudgment motion remained pending. See People v. Fuller,

,

. However, when defendant sought dismissal of his appeal in No.

4-14-0782 and the appellate court dismissed the appeal and filed the mandate with the circuit

court, we do not see why jurisdiction would not return to the circuit court for the remainder of

- 13 - the 30-day period following the denial of defendant’s motion. The State cites no clearly contrary

authority. Rather, we conclude the trial court retained jurisdiction for the remainder of the 30

days following its denial of defendant’s motion to reconsider his sentence.

¶ 35 Although not precisely on point, we find some guidance in People v. Miraglia,

,

(2001). In Miraglia, the defendant filed a motion to

reconsider the judgment of guilty.

,

. On November 9, 1999, the trial

court denied the motion and sentenced the defendant.

That same date, the defendant filed a

notice of appeal.

On November 23, 1999, new defense counsel filed an amended notice of

appeal.

On December 8, 1999, defense counsel filed a second posttrial motion, which the trial

court denied on December 13, 1999.

,

. Although the appellate

court questioned the filing of this second repetitious postjudgment motion, it acknowledged the

trial court had jurisdiction to rule upon the motion because it was filed within 30 days of the final

sentencing judgment.

,

. The court reasoned that because the filing of

the second motion rendered the original notice of appeal ineffectual, and the denial of the second

motion was final when the court denied it on December 13, 1999, the 30-day period for filing an

appeal began anew.

¶ 36 Following the December 13, 1999, denial of the second postjudgment motion, “no

new notice of appeal was filed until after the ruling on the third motion, on January 20, 2000, a

date well beyond the prescribed 30-day period for appeal.”

,

. The

appellate court determined that the trial court did not have the “authority to extend the time for

appeal, under the guise of hearing a successive, amended motion after ruling on the prior

motion—by allowing yet another posttrial motion to be filed on January 11 and ruling on it on

January 20, 2000.”

,

. The appellate court was clear: “a trial court

- 14 - cannot permit a defendant to file a postjudgment motion directed against the final judgment, rule

on it, and then rule on a motion to reconsider the denial of that posttrial motion and thereby

extend its jurisdiction and the time for appeal.”

,

.

¶ 37 To the extent that the reconsideration of the denial of the motion to reconsider

defendant’s sentence was similar to a successive postjudgment motion, we find what occurred

here is not in conflict with Miraglia. The trial court entered its final order denying defendant’s

motion to reconsider his sentence on September 3, 2014. On October 2, 2014, after appeal No. 4-

14-0782 was dismissed and the mandate from the appellate court was filed in the circuit court,

the trial court modified its denial of defendant’s motion to reconsider his sentence and, instead,

granted the motion and reduced defendant’s sentence to 16 years’ imprisonment. This

modification was made within the 30 days the court retained jurisdiction to modify its final

order. Defendant appealed on October 3, 2014, also within the 30-day period for the filing of an

appeal from a final order. The court did not impermissibly rule on a postjudgment motion “then

rule on a motion to reconsider the denial of that posttrial motion and thereby extend its

jurisdiction and the time for appeal.” (Emphasis added.)

The trial court did not extend its

jurisdiction beyond the 30-day period following the denial of the postjudgment motion, nor did it

extend the time for defendant to file an appeal. Accordingly, we conclude the trial court had

jurisdiction where the original notice of appeal was dismissed, the mandate was filed in the

circuit court, the circuit court modified its judgment, and defendant filed a new notice of appeal

within the 30-day period following the denial of defendant’s motion. Accordingly, we decline to

vacate the court’s October 2, 2014, modification of its September 3, 2014, final order.

¶ 38 B. Sentencing

- 15 - ¶ 39 Turning to the merits of this appeal, defendant asserts the trial court erred by

considering, as an aggravating factor, that defendant indicated he had a firearm because that was

a factor inherent in the offense. The State contends defendant has procedurally defaulted this

issue by failing to raise it before the trial court. However, defendant asks this court to review this

claim under the plain-error doctrine.

¶ 40 The threshold question in plain-error analysis is whether there was error at all.

People v. Piatkowski,

,

(2007).

“[T]he plain-error doctrine allows a reviewing court to consider

unpreserved error when (1) 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) 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.”

,

.

However, relief is only available under the plain-error doctrine if the defendant can “first show

that a clear or obvious error occurred.” People v. Hillier,

,

(2010).

¶ 41 Defendant contends the trial court improperly considered, in aggravation, that

defendant indicated he had a firearm. Defendant asserts this was error because it was a factor

inherent in the offense of aggravated robbery, in that defendant took property from Runge by the

- 16 - use of force or threatening the imminent use of force while indicating verbally or by his actions

to the victim that he was armed with a firearm. We disagree.

¶ 42 The trial court, in relevant part, made the following comments at sentencing

regarding the nature and circumstances of the offense:

“He pointed the gun at her forehead. She believed it was a real

gun. The weapons were never recovered, although the conversation

references to the weapons in the notes certainly make it sound like

they existed, whatever they were, real or not, and in this case since

he pled guilty to aggravated robbery, I will consider only that he

acted like he had a weapon. But it for all purposes appeared real to

the victims. And this gun was literally pointed at the forehead first

of the fifteen year old and then at Mrs. Runge while she was trying

to go back to the bathroom to check on her granddaughter and call

on a different phone for help.”

The court also said, “He did threaten—his conduct did threaten violence. Well, that’s inherent in

the charge. The fact that it was visited upon the victims in their own home is not, and that’s a

factor in aggravation.”

¶ 43 The court may consider “the nature and circumstances of the offense, including

the nature and extent of each element of the offense as committed by the defendant.” (Internal

quotation marks omitted.) People v. Saldivar,

,

(1986). “Certain criminal conduct may warrant a harsher penalty than other conduct, even

though both are technically punishable under the same statute.”

,

.

- 17 - Consequently, the degree of harm caused to the victim may be taken into account in determining

the length of a particular sentence.

¶ 44 Here, the trial court considered the degree of harm caused by the fact the offense

occurred within the victims’ home—a place where one’s feeling of safety and security is

paramount—and the terror the victims experienced at having what they believed to be a firearm

pointed at them, including the fact the gun was pointed directly at the 15-year-old victim’s

forehead. The court specifically noted the threat of violence was inherent in the offense and

emphasized its consideration of factors in aggravation related to this event occurring in the home

and the terror felt by the victims. Additionally, the court considered defendant’s obvious lack of

remorse, failure to take advantage of previous opportunities for rehabilitation, and the likelihood

defendant would reoffend based on his attitude and embrace of a gang lifestyle. Accordingly, we

conclude the court properly considered the nature and circumstances of the offense and did not

err by improperly considering a factor inherent in the offense in considering aggravating factors.

Because we find no clear or obvious error, we decline to review defendant’s claim under the

plain-error doctrine. Hillier,

,

.

¶ 45 III. CONCLUSION

¶ 46 For the reasons stated, we affirm the trial court’s judgment. As part of our

judgment, we award the State its $75 statutory assessment against defendant as costs of this

appeal. 55 ILCS 5/4-2002 (West 2016).

¶ 47 Affirmed.

- 18 -