No. 1-16-1323

FIRST DISTRICT December 10, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 09 CR 18310 ) CALEB CHARLESTON, ) ) Honorable ) Dennis J. Porter Defendant-Appellant. ) Judge Presiding.

JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Justices Pierce and Walker concurred in the judgment and opinion.

OPINION

¶1 Defendant Caleb Charleston was convicted of first degree murder (720 ILCS 5/9-1(a)(1)

(West 2008)) for his participation in a drive-by shooting and sentenced to a 75-year term of

imprisonment. Defendant’s conviction was affirmed on appeal. See People v. Charleston,

. Defendant’s sentence, however, was vacated, and his case was

remanded for a resentencing hearing because the trial court improperly considered as substantive

evidence a witness’s hearsay statement that the victim was killed because he cooperated with

authorities. The trial court conducted a new sentencing hearing and sentencing him to a 60-year

term of imprisonment, which represented a 15-year reduction from the previous sentence

imposed.

¶2 Defendant appeals his sentence. He argues that it is excessive and violates the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) as applied

to him. We affirm. No. 1-16-1323

¶3 I. BACKGROUND

¶4 Defendant Caleb Charleston was convicted of first degree murder (720 ILCS 5/9-1(a)(1)

(West 2008)) for his participation in a drive-by shooting. He was originally sentenced to a 75­

year term of imprisonment. See 730 ILCS 5/5-4.5-20 (West 2008); id. § 5-8-1(a)(1)(d)(i). The

State presented the following evidence at his trial.

¶5 On June 7, 2009, defendant drove by a location in Chicago as his passenger, co-defendant

Jeffrey Allen (Allen), fired 17 shots at victim Patrick Stribling (Stribling). Not all of the 17 shots

were fired at the same time. When Stribling was first located, Allen fired four or five shots at

him. Stribling was hit and fell to the ground. An eyewitness described Stribling as panicked and

crawling to get away. Defendant pulled away, circled the block and returned. Allen fired a dozen

more shots at Stribling. Stribling died. The car used in the shooting was found abandoned a short

time later, and apparently, someone had attempted to set it on fire. The car turned out to have

been stolen five days earlier.

¶6 This court affirmed defendant’s conviction on appeal. See Charleston,

. However, defendant was granted a new sentencing hearing because the trial court had

improperly considered as substantive evidence a witness’s hearsay statement that Stribling was

killed because he cooperated with authorities in a separate murder case. On remand, the trial

court was ordered to consider (1) the witness’ hearsay statement “for what it is and determine

what weight to give it, if any” and (2) defendant’s age in light of recent “legal and psychological

developments” regarding youthful offenders. Id. ¶¶ 37-38. Defendant was an adult (18 years old)

when he committed the crime.

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¶7 At the time of his resentencing, defendant was 25 years old. He presented no witnesses,

and neither did the State. Instead, the parties relied on argument and both referenced evidence

presented at defendant’s initial sentencing hearing. Defendant gave a statement in allocution.

¶8 The State argued that defendant was an adult when he committed the offense. Before

turning 18, he received probation for a residential burglary, went on to steal a car when he turned

18, and, while he was on probation for that offense, committed the instant offense of first degree

murder (720 ILCS 5/9-1(a)(1) (West 2008)). The State emphasized the manner in which

Stribling was killed and argued that, given the nature of the offense, the sentence imposed was

warranted.

¶9 Defendant argued that he received no infractions while in prison. He was raised without a

father or proper role model and had a drug habit when he committed the offense. Defendant

attended high school through the tenth grade and was on his school’s basketball team.

Throughout his time in prison, he kept his familial and community ties.

¶ 10 In allocution, defendant stated that he had matured mentally, physically, and spiritually

while in prison. He mentioned wanting to “fight harder” for himself, but acknowledged that his

offense affected his family. Defendant said he was “[t]ruly sorry for [Stribling’s] family” and

what his “loved one’s have endured and [are] still enduring.” He further stated that “[Stribling’s]

life was stolen from him,” but mentioned that his life was “stolen from me in a way.” Defendant

told the trial court “I’ll have another chance to prove my innocence,” but emphasized that he was

“not destined for a life of crime.”

¶ 11 The trial court explained the basis for its sentencing determination. The trial court stated

that it would “ignore” the previously relied upon hearsay statement and then turned to consider

the evidence presented at defendant’s trial. Stribling’s killing, the trial court noted, was “as cold­

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blooded a killing I have ever seen in this courtroom I’ll tell you that right now.” The car used in

the shooting was stolen and someone had attempted to set it on fire, which indicated to the trial

court that there had been “prior planning.” The trial court considered defendant’s criminal

history and stated, “the fact you had as much criminal history as you did at your young age is a

damning statement to this court.”

¶ 12 As for defendant’s statement in allocution, the trial court found that defendant had asked

for mercy, but had not expressed remorse. Defendant’s statement and actions, overall,

demonstrated “a lack of respect for the rights of strangers.” The trial court resentenced defendant

to a 60-year term of imprisonment, which represented a 15-year reduction from the previous

sentence imposed. See Charleston,

, ¶ 2.

¶ 13 Defendant filed a motion to reconsider his sentence, which was denied. This appeal

followed. Defendant argues that the trial court focused too heavily on the retributive aspects of

punishment and failed to consider his age and rehabilitative potential when it fashioned his

sentence. He further claims that the trial court improperly considered his failure to admit guilt as

a factor in aggravation. Defendant also contends that, in light of his age of 18 when he

committed the offense, his sentence violates the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 11) as applied to him.

¶ 14 II. ANALYSIS

¶ 15 The issues on appeal are (1) whether the trial court’s sentencing determination was an

abuse of discretion and (2) whether the sentence imposed is unconstitutional as applied.

¶ 16 Criminal penalties must be determined according to the seriousness of the offense and

with the objective of restoring the offender to useful citizenship. Ill. Const. 1970, art. I, § 11

(“[a]ll penalties shall be determined both according to the seriousness of the offense and with the

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objective of restoring the offender to useful citizenship”). The legislature and judiciary play a

dual role in achieving these objectives; the legislature prescribes the permissible sentencing

ranges for criminal offenses, and the trial court fashions the appropriate sentence within the

statutory range. People v. Taylor,

(1984); People v. Fern,

(1999). A sentence imposed within the statutory range is presumed to be proper and will not be

disturbed absent an abuse of discretion. People v. Butler,

.

An abuse of discretion is found when a sentence is greatly at variance with the spirit and purpose

of the law or manifestly disproportionate to the nature of the offense. Id. ¶31.

¶ 17 The sentence imposed here was within the statutory range prescribed by the legislature.

The applicable sentencing range for defendant’s offense was 35 to 75 years because he

committed first degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) while armed with a firearm.

See 730 ILCS 5/5-4.5-20 (West 2008) (20 to 60-year sentencing range for first degree murder);

see also id. § 5-8-1(a)(1)(d)(i) (mandatory 15-year enhancement). Accordingly, we presume the

sentence is proper and review it for an abuse of discretion.

¶ 18 Defendant seeks first-prong plain error review because he failed to raise his arguments in

a postsentencing motion. See People v. Herron,

(2005) (plain error doctrine

allows a reviewing court to reach a forfeited error affecting substantial rights where the evidence

was so closely balanced that the jury’s guilty verdict may have resulted from the error and not

the evidence). We first determine whether an error occurred. See People v. Garner,

(first step in the plain-error analysis is to determine whether an error

occurred).

¶ 19 We hold that the trial court’s sentencing determination was not an abuse of discretion.

The trial court considered defendant’s rehabilitative potential and determined that the seriousness

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No. 1-16-1323

of the offense and other aggravating factors warranted the sentence imposed. People v. Tye,

(2001) (although the trial court is required to consider defendant’s

rehabilitative potential, it is not required to give greater weight to that factor than to the

seriousness of the offense or other aggravating factors).

¶ 20 We first note that the trial court gave due consideration to the mitigating factors. See

People v. Peoples,

(a minimum sentence is not necessarily

warranted simply due to the presence of some mitigating factors). The trial court considered the

fact that defendant had not received any infractions or reprimands while incarcerated and

determined that defendant’s adjustment to his present circumstances mitigated in his favor. It

considered defendant’s presentence investigation report and found that defendant had showed

“concern” for his family members and recognized the impact his incarceration had upon them.

Contrary to defendant’s argument, the trial court also duly considered defendant’s age, though it

may not have considered this factor in the manner defendant had intended.

¶ 21 Defendant’s primary contention on appeal is that the trial court failed to consider his age

as a mitigating factor and as conclusive of his rehabilitative potential. He argues that his brain

was “still developing” at 18 years of age and that his commission of the offense was

characteristic of the “transient immaturity” and “wild and impulsive behavior” attendant to

youth, not criminality. Defendant’s argument is unavailing.

¶ 22 There is no evidence in the record to support defendant’s contentions that his commission

of the offense was solely attributable to his age or that this factor alone is conclusive of his

rehabilitative potential. At his resentencing hearing, defendant called no witnesses and presented

no evidence of his rehabilitative potential from an objective, medical, or scientific standpoint. A

review of the record reveals that defendant only mentioned his age in passing.

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No. 1-16-1323

¶ 23 We find that the trial court did take defendant’s age into account when it sentenced him

and made explicit references to his youth. Because defendant was an adult when he committed

first degree murder (720 ILCS 5/9-1(a)(1) (West 2008)), the trial court was not required to

consider the sentencing factors applicable to juveniles or to treat his age as a factor that mitigated

in his favor. See 730 ILCS 5/5-4.5-105 (West 2016) (listing additional factors to be considered in

mitigation when sentencing a juvenile); see also 730 ILCS 5/5-5-3.1 (West 2008) (listing factors

to be considered in mitigation when sentencing an adult). An adult defendant’s age is but one

factor for consideration when a trial court fashions an appropriate sentence. Although defendant

here may have been close in age to a juvenile when the offense was committed, that fact,

standing alone, does not render his sentence excessive. People v. Decatur,

(“no reported authority holds that an adult defendant’s relative youth, standing

alone, renders a sentence longer than the statutory minimum excessive”).

¶ 24 Here, the trial court’s consideration of defendant’s age coincided with what it considered

to be a pattern of criminality that started when defendant was a juvenile and continued into

adulthood. The trial court stated that defendant had been placed on probation for residential

burglary as a juvenile and, upon attaining 18 years of age, stole a car, was again placed on

probation, and then committed the offense of first degree murder (720 ILCS 5/9-1(a)(1) (West

2008)). The trial court was not required to overlook these facts and attribute past instances of

criminality to defendant’s age alone. See 730 ILCS 5/5-5-3.2(a)(3) (West 2008) (allowing trial

court to consider history of prior delinquency or criminal activity); see also People v. Trimble,

(1991) (consideration of delinquency adjudications in adult sentencing

hearings is proper).

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No. 1-16-1323

¶ 25 It is clear from the record that the trial court found the nature and seriousness of

defendant’s offense to be of primary concern. People v. Flores,

(2010)

(the nature and circumstances of the offense and the history and character of the defendant are

factors that govern rehabilitative potential). At defendant’s resentencing hearing, the trial court

recalled the evidence presented at trial. Defendant’s passenger fired multiple shots from a car

and hit his victim. Rather than drive away, defendant circled the block and returned so that his

passenger could “put nine more in him because he wasn’t quite dead yet.”

¶ 26 In the trial court’s mind, Stribling’s killing was “as cold-blooded a killing I have ever

seen in this courtroom.” The court made note that the evidence indicated “prior planning”

because “the car used was stolen and it was very shortly thereafter found in an attempt to burn

the car destroying any evidence that might be in it.” The trial court’s decision to focus on the

seriousness of defendant’s offense was not improper. See People v. Horta,

(the seriousness of the offense remains the most important consideration when

fashioning a criminal sentence).

¶ 27 The trial court further considered defendant’s rehabilitative potential when he gave his

statement in allocution. See People v. Ward,

(1986) (“ ‘[a] defendant’s

truthfulness or mendacity while testifying on his own behalf, almost without exception, has been

deemed probative of his attitudes toward society and prospects for rehabilitation and hence

relevant to sentencing’ ” (quoting United States v. Grayson,

(1978))). The trial

court listened to defendant’s statement and found that, in “tenor” and content, it demonstrated a

lack of remorse and “utter exclusion of concern for innocent people who [sic] come across your

path.” The trial court determined that defendant was not repentant and expressed that it did not

believe defendant was innocent. A lack of remorse and the failure to show a penitent spirit may

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properly be considered in determining sentences. Ward,

. The trial court was at

liberty to make these determinations and to express its belief that defendant was guilty.

¶ 28 Defendant argues that “the judge explicitly considered [defendant’s] claim of innocence

in his allocution statement as a factor in aggravation.” He further claims that his protestation of

innocence was the “main reason for the judge’s imposition of a lengthy sentence.” Defendant’s

arguments are unavailing.

¶ 29 The trial court was at liberty to express its belief that defendant was guilty, and it was

free to consider defendant’s protestation of innocence and lack of remorse as indicative of his

character and prospects for rehabilitation. People v. Abrams,

(a

defendant’s insistence on his innocence and lack of remorse tellingly indicate his character and

prospects for rehabilitation). A trial court is not prohibited from considering a defendant’s

protestation of innocence and lack of remorse as factors in aggravation so long as its decision to

treat those factors as such is not automatic or arbitrary. Ward,

. Further, it is

well settled that a defendant’s protestation of innocence may send a strong message to the trial

court that he or she is “an unmitigated liar and at continued war with society.”

.

¶ 30 The trial court here was not bound to adopt a particular interpretation of defendant’s

statement in allocution, but was rather free to determine the message it conveyed. Defendant

stated that he “should have been more vocal with [the trial court] and the attorney that

represented me.” He asked that his sentencing enhancement be removed and mentioned that the

hearing was not “the reversal of the trial he was looking for but it’s a step in the right direction.”

Defendant further stated, “it’s messed up how many how street violence in Chicago has taken so

many lives. [Stribling’s] life was stolen from him and how I feel my life was stolen from me in a

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way but I’ll have another chance to try to prove my innocence.” We find the trial court’s

consideration of defendant’s statement to be anything but improper.

¶ 31 We also reject defendant’s argument that the trial court’s purported “distaste” for this

court’s remand for resentencing played a role in its sentencing determination. We find that the

trial court complied with this court’s order. It ignored the witness’s hearsay statement (though it

did not have to do so) when weighing the relevant factors and imposing defendant’s sentence

(Charleston,

, ¶ 37 (“[t]he trial judge should consider Williams’

statement for what it is and determine what weight to give it, if any”)) and gave due

consideration to defendant’s age.

¶ 32 Considering the record as a whole, the trial court did not abuse its discretion when it

fashioned defendant’s sentence. The sentence imposed was not at variance with the spirit and

purpose of the law or manifestly disproportionate to the nature of the offense. Ward,

(the reviewing court should not focus on a few words or statements of the trial court;

rather, the determination of whether or not the sentence was improper must be made by

considering the entire record as a whole). Accordingly, we find no plain error because no error

occurred.

¶ 33 Defendant challenges the constitutionality of his sentence and argues that it violates the

proportionate penalties clause of the Illinois Constitution as applied to him. Ill. Const. 1970, art.

I, § 11. We review this issue de novo. People v. Davis,

(whether a

statute violates the proportionate penalties clause is a question we review de novo).

¶ 34 Defendant claims that, in light of his age of 18, his sentence is so cruel, degrading, and

wholly disproportionate to the offense of first degree murder (720 ILCS 5/9-1(a)(1) (West 2008))

that it shocks the moral sense of the community. People v. Brown,

, 1118

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(2007). To support this contention, defendant relies on precedent that does not apply to him:

Miller v. Alabama,

(2012) (holding that the eighth amendment prohibits

mandatory life-without-parole sentences for juveniles who commit murder); Graham v. Florida

(2010) (holding that the eighth amendment prohibits mandatory life-without­

parole sentences for nonhomicide juvenile offenders); People v. Reyes,

(extending the prohibition in Miller to mandatory sentences that cannot be served in a juvenile’s

lifetime). These cases involve mandatory sentences imposed upon juvenile defendants, whereas,

here, defendant received a discretionary sentence for a crime he committed as an adult.

Accordingly, these cases do not apply here.

¶ 35 The following cases similarly fail to support defendant’s contention that his sentence is

unconstitutional as applied: People v. Harris,

, aff’d in part, rev’d in

part,

, People v. House,

, and People v. Williams,

. These cases involved mandatory sentences imposed by the legislature. The

trial court here properly exercised its discretion and reduced defendant’s previous sentence by 15

years.

¶ 36 Accordingly, defendant’s cited authority does not apply to him, and he has made no

showing that the evolving science on juvenile maturity relied upon in Miller and its progeny

applies to his specific facts and circumstances. He presented no evidence at his resentencing

hearing, an evidentiary hearing was not conducted, and the trial court made no factual findings.

Defendant’s as-applied constitutional challenge must fail.

¶ 37 III. CONCLUSION

¶ 38 Accordingly, we affirm.

¶ 39 Affirmed.

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