No. 1-16-1267

Opinion filed December 27, 2018

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 15 CR 5697 ) JASPER LAWRENCE, ) The Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, defendant Jasper Lawrence was convicted of unlawful possession of

a weapon by a felon and sentenced to seven years with the Illinois Department of Corrections

(IDOC).

¶2 On this appeal, defendant claims, first, that the trial court erred in denying his motion

to suppress the gun seized from him because police officers arrested him without probable

cause. Second, he claims that the trial court coerced a guilty verdict by telling the jurors to

continue to deliberate after the jurors sent out a note indicating that they were deadlocked. No. 1-16-1267

Third, defendant asks this court to vacate his sentence and remand for resentencing because

the trial court either relied on an incorrect sentencing range or impermissibly enhanced his

sentence by using an element of the offense also as an aggravating factor.

¶3 For the following reasons, we do not find these claims persuasive and affirm his

conviction and sentence.

¶4 BACKGROUND

¶5 Before trial, defendant moved to quash his arrest and suppress the gun seized from

him, claiming that, while the traffic stop of the vehicle (in which he was a passenger) was a

valid stop when the stop began, the stop exceeded its permissible scope and, thus, resulted in

his illegal arrest.

¶6 At the subsequent suppression hearing held on August 31, 2015, police officer

Gregory Klimaszewski testified that he and his partner, Officer Lawrence Willems,

personally observed a vehicle commit a traffic violation. Specifically, at 11:30 p.m. on

March 25, 2015, they observed a silver Buick that failed to stop at a red light before making a

right turn. After Officer Willems activated the police vehicle’s lights and siren, the driver of

the Buick complied and pulled over. The vehicle held two occupants: (1) the driver and

(2) defendant, who was in the front passenger seat. Officer Willhems approached the driver’s

side on foot, while Officer Klimaszewski approached the passenger side of the vehicle. The

area was well lit with streetlights, Observing that the Buick’s windows were rolled up,

Officer Klimaszewski shined his flashlight into the vehicle and observed that defendant was

“moving around” with a handgun sticking out of the front pocket of his hooded sweatshirt.

Officer Klimaszewski testified that he was able to observe “[a]lmost the entire gun,”

including “the grip, the back handle” and “most of the [gun’s] barrel.” At the hearing, he

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No. 1-16-1267

described the gun as a small chrome-colored, .25-caliber semiautomatic pistol. Officer

Klimaszewski could not recall if the Buick’s windows were tinted, but he testified that the

silver color of the gun contrasted with the black color of defendant’s sweatshirt and that he

could observe the gun while standing a foot away from the vehicle.

¶7 Officer Klimaszewski testified that he informed his partner that he had observed a

gun, he withdrew his own gun and directed defendant to exit the vehicle, and defendant

complied. After defendant exited, Officer Klimaszewski took possession of the handgun and

placed defendant under arrest.

¶8 During the argument on the suppression motion, defense counsel argued primarily

that the window was rolled up and tinted, and thus, the officer’s testimony was unbelievable.

The trial court did not find this argument persuasive, observing that the court had before it

only the uncontroverted testimony of the officer about what he observed. Thus, it denied the

motion.

¶9 On December 14, 2015, defendant moved to reconsider on the ground that the

officers lacked probable cause to arrest defendant, since possessing a firearm is not, by itself,

a crime. The trial court permitted defendant to reopen testimony, and on January 25, 2016,

the suppression hearing resumed.

¶ 10 Officer Klimaszewski testified that, as he took possession of the gun from defendant,

defendant stated, “it’s a lighter, not a handgun.” Officer Klimaszewski then handed the gun

to his partner, Officer Willems, who determined that the gun was loaded. Officer

Klimaszewski then handcuffed defendant and placed him in the back of a police vehicle.

Other officers drove defendant to the police station, which was “[a]bout eight blocks” from

where the initial stop occurred. When Officer Klimaszewski arrived at the police station, he

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No. 1-16-1267

learned that defendant (1) lacked a firearm owner’s identification (FOID) card, (2) lacked a

concealed carry permit, and (3) had a prior felony conviction. However, Officer

Klimaszewski did not know these facts when he arrested defendant.

¶ 11 After listening again to argument on the suppression motion, the trial court denied the

motion, finding that

“it would be unreasonable *** to require that before moving further, [the officers]

needed to keep the [d]efendant on the scene until they looked into the fact that he

didn’t have a Concealed Carry or a FOID, based on the untruth told to the police, the

lie that it was not, in fact, a lighter.”

Thus, the trial court found that it was reasonable for the officers to “take [defendant] eight

blocks away to do a further investigation.”

¶ 12 Prior to the start of trial, the trial court informed defendant that he was charged with a

Class 2 felony and that the sentencing range for that charge was three to seven years. The

trial court further informed defendant that, the State “could ask, if [defendant was] convicted,

for an extended term of 7 to 14 years, [and] fines up to $25,000.” The trial court then asked

defendant: “You understand that’s a range that you’d be facing, that’s 3 to 14 years if you’re

convicted? Yes.” Although the record does not indicate defendant’s response, the trial court

immediately stated “[a]ll right,” thereby indicating that defendant had indicated he

understood. The court then confirmed that defense counsel had communicated the State’s

plea offer and that defendant chose to reject it. The trial court asked if that was correct, and

defendant responded “[y]es, ma’am.” The trial court then found “that the Defendant, Mr.

Lawrence, understands the penalties that he faces.”

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No. 1-16-1267

¶ 13 At trial, Officer Klimaszewski testified substantially the same as he had during the

pretrial suppression hearing, and his partner, Officer Willems, substantially corroborated

him, testifying that he also heard defendant state that it was not a gun, but a lighter. After

being qualified as an expert in firearm examination, Sergeant Kenneth Krok testified that he

examined the gun, and found that it was a fully operational .25-caliber pistol and definitely

“not a lighter.”

¶ 14 The parties stipulated that, at the time of the offense, defendant had a prior qualifying

conviction, and the State rested. Defendant moved for a directed verdict, which the trial court

denied.

¶ 15 Defendant testified that he was a passenger in the Buick on March 25, 2015, but that

neither he nor the driver had a gun. Defendant testified that the police officers stated that they

pulled the vehicle over because it had tinted windows, that the vehicle did, in fact, have

tinted windows, and that a person could not see through the windows at night from outside

the vehicle. Defendant admitted that he was wearing a black sweatshirt with a large front

pocket, that a silver gun would contrast with a black sweatshirt, that he was a convicted

felon, and that he knew he could not legally possess a gun.

¶ 16 In rebuttal, the State called Officer Daniel Vasquez, who was patrolling the same area

with his partner, Officer Doherty. Officer Vasquez testified that they observed the traffic

violation and pulled over to assist. Officer Vasquez testified that he overheard Officer

Klimaszewski yell “gun” and also overheard defendant state “it was not a gun, it was a

lighter.”

¶ 17 After hearing closing arguments and jury instructions, the jury began deliberating at

10:30 a.m. on January 27, 2016. At 1:30 p.m., the jury sent out a note with two questions.

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No. 1-16-1267

The first question asked: “We are at 9 guilty 3 not guilty. What next?” The second question

asked: “Can we get the testimony of Officer Klimaszewski and Officer Willems?”

¶ 18 The trial court discussed the note with the attorneys from both sides and informed

them that, with respect to the first question, it was going to answer, “Please continue to

deliberate.” Defense counsel agreed, stating, “Right.” Then defense counsel asked the trial

court to inform the jury that “we cannot get the transcripts today.” Summing up the court’s

contemplated response, the trial court stated that it “will answer as to jurors regarding

question number one, please continue to deliberate. Regarding question number two, the

attorneys have checked and the transcripts are unavailable.” Defense counsel then asked the

trial court to inform the jurors specifically that the transcripts are unavailable “today.” The

trial court agreed, stating that it “will say that they are unavailable today.”

¶ 19 A half hour later, at 2 p.m., the jury returned a verdict finding defendant guilty of

unlawful possession of a weapon by a felon. On February 24, 2016, and on April 12, 2016,

defendant filed a posttrial motion and a supplemental motion for a new trial that were

subsequently denied. The supplemental motion claimed, among other things, that the trial

court erred in denying defendant’s motion to suppress evidence and quash arrest.

¶ 20 At the sentencing hearing on April 13, 2016, defendant’s mother testified that

defendant was a loving and hard-working son and father. The prosecutor then stated, without

objection, that the applicable sentencing range was 3 to 14 years. The prosecutor first

reviewed defendant’s criminal history, but then observed that defendant was not in a gang,

had no gang contacts, had a “good family” and “positive role models,” and “leads a different

life than many of the people that come before you in this courtroom.”

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No. 1-16-1267

¶ 21 After considering multiple factors in mitigation and aggravation, the trial court

sentenced defendant to seven years with IDOC. Also on April 13, 2016, defendant filed a

motion to reconsider his sentence claiming, among other things, that the trial court

“improperly considered in aggravation matters that are implicit in the offense” and that the

State failed to prove his “eligibility for enhanced penalty or extended term.” The trial court

denied the motion to reconsider, and defendant filed a timely notice of appeal, also on April

13, 2016. This timely appeal followed.

¶ 22 ANALYSIS

¶ 23 On this appeal, defendant claims (1) that the trial court erred in denying his motion to

suppress the gun, (2) that the trial court coerced a guilty verdict by telling the jurors to

continue to deliberate, and (3) that, in the alternative, his sentence must be vacated and his

case remanded for resentencing because the trial court improperly used an element of the

offense, namely, his prior felony conviction, as an aggravating factor.

¶ 24 For the following reasons, we do not find these claims persuasive and affirm his

conviction and sentence.

¶ 25 I. Suppression Motion

¶ 26 First, defendant claims that police officers arrested him without probable cause, and

thus, the trial court erred by failing to grant his motion to quash his arrest and suppress the

gun seized from him.

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No. 1-16-1267

¶ 27 A. Standard of Review

¶ 28 A trial court’s ruling on a defendant’s motion to suppress evidence and quash arrest

usually involves questions of both fact and law. People v. Williams,

; People v. McCarty,

(2006).

¶ 29 A trial court’s factual findings are given great deference and will not be disturbed on

review unless they are against the manifest weight of the evidence. People v. Holmes;

, ¶ 9; Williams,

; People v. Close,

(2010). At a hearing on a motion to suppress evidence and quash arrest, the trial court

acts as the fact finder and, as such, is responsible for determining the credibility of the

witnesses, drawing reasonable inferences from the testimony and other evidence, and

weighing the evidence presented. Williams,

; Close,

.

¶ 30 However, the trial court’s ultimate ruling on the motion is a question of law that we

review de novo. Holmes,

, ¶ 9; Williams,

;

Close,

. Thus, “[a] reviewing court *** [is] free to undertake its own

assessment of the facts in relation to the issues and may draw its own conclusions.” People v.

Ciborowski,

; see also People v. Pitman,

(2004).

¶ 31 B. Fourth Amendment

¶ 32 Both the Illinois Constitution and the fourth amendment of the United States

Constitution protect citizens from unreasonable searches and seizures by police officers.

Holmes,

, ¶ 25; U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. “[T]he

‘essential purpose’ of the fourth amendment is to impose a standard of reasonableness upon

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No. 1-16-1267

the exercise of discretion by government officials,” such as police officers. People v. Jones,

(2005).

¶ 33 Encounters between police officers and citizens have been divided by the courts into

three tiers: (1) arrests, which must be supported by probably cause; (2) brief investigative

detentions, commonly referred to as “Terry stops,” which must be supported by a police

officer’s reasonable, articulable suspicion of criminal activity; and (3) consensual encounters

that involve no coercion by the police and, thus, do not implicate the fourth amendment.

Williams,

; Ciborowski,

; see

also People v. Luedemann,

(2006).

¶ 34 Pursuant to the landmark case of Terry v. Ohio,

(1968), a police officer

may conduct a brief, investigatory detention when he or she has a reasonable suspicion that a

person is committing, is about to commit, or has committed a criminal offense. Williams,

; Ciborowski,

. The officer’s

reasonable suspicion must be more than a hunch and must be supported by specific and

articulable facts. Williams,

. However, it is less than what

is required for probable cause. Williams,

. When reviewing

the officer’s action, a court will apply an objective standard, rather than a subjective

standard. People v. Colyar,

. Thus, the question on review is whether

the facts known to the officer at the time would lead a reasonably prudent person in the same

circumstances to believe that the action was appropriate. Colyar,

.

¶ 35 To justify a full custodial arrest, an officer must have probable cause. Williams,

; Ciborowski,

. Probable cause

exists when the facts and circumstances known to the arresting officer are sufficient to

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No. 1-16-1267

warrant a reasonable person’s belief that the arrested person has committed a crime.

Ciborowski,

; see also People v. Gherna,

(2003). Officers are allowed to draw on their own experience and specialized training to

make inferences and deductions about the cumulative information available to them.

Ciborowski,

. Upon review, a court will look at the totality of

the circumstances known to the arresting officer at the time of the arrest. Ciborowski,

; People v. Berry,

(2000).

¶ 36 A probable cause determination does not require the police to possess proof beyond a

reasonable doubt. Berry,

. Police officers “may arrest the defendant if it

is more probably true than not that the evidence available to them supports the conclusion

that defendant committed the crime.” Berry,

.

¶ 37 In determining whether probable cause existed, “a reviewing court is not limited to

the evidence presented at the circuit court’s pretrial suppression hearing, but may also

consider evidence that was offered at the defendant’s trial.” People v. Sims,

(1995). “Also, this court may affirm a trial court’s suppression ruling for any reason

appearing in the record, regardless of whether such reason was expressly noted by the trial

court in reaching its conclusion.” Sims,

; People v. Gomez,

(“[W]e may affirm the trial court’s ruling on defendant’s motion to

suppress for any reason in the record, regardless of whether the trial court relied on this

reason as a basis for its conclusion.”).

¶ 38 As a general matter, the decision to stop a vehicle is reasonable where the police have

probable cause to believe that a traffic violation has occurred. People v. Hackett,

; People v. Sorenson,

(2001) (“The stop of the vehicle in

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No. 1-16-1267

which the defendant was a passenger was justified based on [the officer’s] observation of a

traffic violation.”). Although traffic stops are frequently supported by probable cause to

believe that a traffic violation occurred, reasonable suspicion will suffice for purposes of the

fourth amendment, whether or not the stop was supported by probable cause. Hackett,

. After observing a traffic violation, the police may seize the vehicle’s driver

and any passengers for the duration of the traffic stop. Arizona v. Johnson,

(2009). Once a vehicle has been lawfully detained for a traffic violation, the police officers

may order the driver and any passengers out of the vehicle without violating the fourth

amendment. Sorenson,

; Johnson,

. Once outside the stopped

vehicle, the driver and passengers may be patted down for weapons if the officer reasonably

concludes that they may be armed and presently dangerous. Johnson, 555 U.S at 331-32.

¶ 39 After making a lawful stop, a police officer may perform this frisk or protective pat-

down search if he or she has a reasonable articulable suspicion that the person stopped is

armed and dangerous. People v. Surles,

. “The officer need

not be absolutely certain that the individual is armed; the issue is whether a reasonably

prudent man in the circumstances would be warranted in the belief that his safety or that of

others was in danger.” Sorenson,

.

¶ 40 In the case at bar, the officers had probable cause to believe that a traffic violation

had been committed because the officers personally observed the violation. Once the vehicle

was lawfully stopped, Officer Klimaszewski observed almost the entire gun. 1 Although at

trial defendant denied having a gun, he admitted that, if he did, a silver gun would have stood

out against the black hoodie he was wearing. After the officer observed the gun, its seizure to

1 On appeal, defendant does not challenge the officer’s right to shine the flashlight into the vehicle. 11

No. 1-16-1267

ensure officer safety during the traffic stop was reasonable. Defendant then spontaneously

volunteered to the officers that the object was not a gun but a lighter. At trial, several officers

testified to hearing this remark. Officer Klimaszewski testified that, after this remark,

defendant was arrested, handcuffed, placed in the back of a police vehicle, and transported to

a police station.

¶ 41 On appeal, defendant argues that, at the moment of arrest, the officers did not know

that defendant lacked a FOID card or a concealed carry permit or that he was a convicted

felon and, thus, they lacked probable cause. By contrast, the State argues that this lie

provided probable cause to believe that defendant did not legally possess the gun because a

lawful owner would not have volunteered a false statement.

¶ 42 It is well established that “[a] false exculpatory statement is probative of a

defendant’s consciousness of guilt.” (Internal quotation marks omitted.) People v. Milka,

(2004); People v. Moore,

(“false exculpatory

stories” can “be viewed as evidence of consciousness of guilt”); People v. Jones,

(false exculpatory statements are evidence of defendant’s

consciousness of guilt); People v. Mister,

(a false

exculpatory statement can be a factor in establishing guilt beyond a reasonable doubt);

Miranda v. Arizona,

(1966) (“no distinction may be drawn between

inculpatory statements and statements alleged to be merely ‘exculpatory,’ ” as the latter,

when proven false, are “incriminating in any meaningful sense of the word”).

¶ 43 In addition, this court has long held that “[m]any factors are relevant to a

determination of probable cause, including but not limited to: *** whether it appears that

defendant has made false exculpatory statements.” People v. Hardaway,

No. 1-16-1267

592, 604 (1999); see also Berry,

(defendant’s false exculpatory

statement about how long he had possessed the victim’s cellphone contributed to a finding of

probable cause); People v. Hendricks,

(1993); People v. Tyler,

(1984) (“knowledge that an explanation offered is untrue” may be

“considered in determining whether there was probable cause to arrest”).

¶ 44 In some ways, this case is similar to a drug arrest where the police officer did not

actually observe the illegal substance prior to the arrest. Probable cause does not require

officers to verify that a substance is an illegal drug before they can arrest, if they have

already witnessed suspicious hand-to-hand transactions. E.g., People v. Harris,

(2004). Similarly, in the case at bar, probable cause did not require the officers

to verify defendant’s lack of a FOID card prior to arrest, once they had heard his false

exculpatory statement. Similar to a drug case where officers act promptly to confirm the

illegal nature of the substance seized, so too the officers in the case at bar acted promptly to

confirm defendant’s illegal possession of the item seized. Reasonableness is the touchstone

of the fourth amendment; in the case at bar, the officers acted reasonably at every step of the

way. Jones,

(“The touchstone of a fourth amendment analysis ‘is always

“the reasonableness in all the circumstances of the particular governmental invasion of a

citizen’s personal security.” ’ ” (quoting Pennsylvania v. Mimms,

(1977),

quoting Terry,

). Thus, we do not find defendant’s claim persuasive that the

officers lacked probable cause when they arrested him, handcuffed him, placed him in the

back of a police vehicle, and transported him to a police station.

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No. 1-16-1267

¶ 45 Defendant further argues 2 that he was arrested the moment that Officer Klimaszewski

drew his weapon and directed defendant out of the vehicle. As we already observed, the

officer drew his weapon only after first observing that defendant was armed. Defendant

argues that the moment the officer’s weapon was drawn, the stop became an arrest and the

officers needed probable cause. In support of his argument that drawing a weapon creates an

arrest, defendant cites Surles,

. However, the Surles court found

nothing of the kind. Although the Surles court stated that an officer’s approach with a gun

drawn changes “the mood” of the encounter to “more like an arrest,” the court made clear

that the Surles defendant was not actually arrested until he was handcuffed. Surles,

. The Surles court repeated this finding a couple of times. First, the

Surles court stated: “we conclude that defendant was arrested from the time he was

handcuffed by Officer McGrew.” (Emphasis added.) Surles,

.

The trial court then repeated that it “found that defendant was placed under arrest when he

was handcuffed.” (Emphasis added.) Surles,

. Thus Surles

does not stand for the proposition that defendant argues.

¶ 46 Defendant argues, in essence, that a police officer must stand by a vehicle and not

draw his weapon, as an armed passenger exits the vehicle. We are not aware of any opinion

that has made such a finding and defendant does not cite one to support that proposition. It is

well-established law that officers may frisk a passenger for weapons after developing a

reasonable suspicion that the passenger is armed. E.g., In re Tyreke H.,

(“[T]he passenger of a stopped car, not himself suspected of engaging in

2 Although defendant raises this issue in his reply brief, forfeiture is a limitation on the parties not the court. People v. Perry,

(although defendant did not raise a particular argument in his opening brief, this court addressed it, observing that forfeiture limits the parties’ ability to raise an issue, but not the court’s ability to address it). 14

No. 1-16-1267

criminal behavior, could be patted down for weapons when officers developed a reasonable

suspicion that he was armed.”). It is hard to imagine a better reason for developing a

suspicion that a passenger is armed than actually viewing the passenger with a gun. In re

Tyreke H.,

(observing just “the outline of a weapon” in the

defendant’s pants pocket, by itself, was enough of a “specific and articulable fact” to justify

“a reasonable suspicion” that defendant was armed). After an officer views a gun, it would be

completely unreasonable to require the officer to stand by the vehicle without his hand on his

own gun. Johnson,

(noting “the risk of a violent encounter in a

traffic[ ]stop”); Michigan v. Long,

(1983) (traffic stops are “especially

fraught with danger to police officers”); Mimms,

(noting “the inordinate risk

confronting an officer as he approaches a person seated in an automobile”); Maryland v.

Wilson,

(1997) (the stop of a vehicle with multiple occupants “increases

the possible sources of harm to the officer”).

¶ 47 For all the foregoing reasons, we do not find persuasive defendant’s arguments that

the officers lacked probable cause or acted unreasonably, which is the touchstone of a fourth

amendment analysis. E.g., Jones,

.

¶ 48 II. Jury Deliberations

¶ 49 Second, defendant argues that the trial court coerced a guilty verdict when it

instructed the jurors to keep deliberating, after they sent out a note with two questions. The

first question stated that they were currently at “9 guilty[,] 3 not guilty. What next?”

¶ 50 The trial court discussed the note with the attorneys from both sides and then

informed the attorneys that, with respect to this first question, it was going to answer, “Please

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No. 1-16-1267

continue to deliberate.” Defense counsel indicated his endorsement of this approach by

stating, “Right.”

¶ 51 When the trial court told counsel that it was going to inform the jurors with respect to

the second question that “the attorneys have checked and the transcripts are unavailable,”

defense counsel requested that the trial court inform the jurors specifically that the transcripts

were unavailable “today.” The trial court agreed immediately, stating that it “will say that

they are unavailable today.”

¶ 52 A party cannot invite an error by the trial court and then use it as a basis for appeal.

“Under the invited-error doctrine, a party cannot acquiesce to the manner in which the trial

court proceeds and later claim on appeal that the trial court’s actions constituted error.”

People v. Manning,

; see also People v. Cox,

; People v. Hughes,

(“the invited error rule” states

that “a party cannot complain of error that it brought about or participated in”); People v.

Bush,

(2005) (when a party “procures, invites, or acquiesces” to a trial

court’s evidentiary ruling, even if the ruling is improper, he cannot contest the ruling on

appeal). “Simply stated, a party cannot complain of error which that party induced the court

to make or to which that party consented.” In re Detention of Swope,

(2004).

¶ 53 In the case at bar, the trial court discussed the note with the attorneys for the express

purpose of gaining their input and, in fact, input defense counsel’s one requested change. The

defense indicated that it was in perfect agreement with the trial court’s intended approach by

stating, “Right.” See People v. Caffey,

(2001) (when the trial court

asked the defense counsel if he had any objection to the State playing a 911 tape and counsel

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No. 1-16-1267

replied, “ ‘No objection, Judge,’ ” the defendant thereby “acquiesced in the admission of this

evidence”); Cox,

(the invited error doctrine barred

defendant’s claim on appeal about the admission of a hearsay statement, when defense

counsel had stated “no objection” at trial to its admission). A defendant cannot procure an

action in the court below, and then complain about it on appeal. Therefore, we cannot find

that the trial court committed any error.

¶ 54 On appeal, defendant concedes that he forfeited this claim for our review by failing to

object to it in the court below and asks us to review it under the plain error doctrine. The

plain error doctrine permits a reviewing court to consider a forfeited error under certain

circumstances. People v. Sebby,

; People v. Piatkowski,

(2007). However, the first step of any plain error analysis is to determine whether “a

clear or obvious error” occurred. Sebby,

; Piatkowski,

.

As we already explained above, we cannot find that the trial court committed any error when

the defense invited the action complained of. Where a defendant “affirmatively acquiesced to

the error by agreeing to the [trial court’s] proposed answer to the jury,” the plain error

doctrine does not apply. People v. Peel,

, ¶¶ 32, 36. “Plain-error

analysis applies to cases involving procedural default [citation], not affirmative acquiescence

[citation].” People v. Bowens,

(2011); see also Peel,

, ¶ 32.

¶ 55 In addition, defendant claims that his trial counsel was ineffective by failing to object

to the trial court’s proposed response. Peel,

, ¶ 36 (where a

defendant affirmatively acquiesced to the trial court’s response to a jury’s note, the claim can

still be reviewed under a claim of ineffective assistance of counsel).

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No. 1-16-1267

¶ 56 Every Illinois defendant has a constitutional right to the effective assistance of

counsel under the sixth amendment to the United States Constitution and the Illinois

Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Domagala,

. Claims of ineffective assistance are judged against the standard set

forth in Strickland v. Washington,

(1984). Domagala,

(citing People v. Albanese,

(1984) (adopting Strickland for Illinois)). To

prevail on a claim of ineffective assistance, a defendant must show both (1) that counsel’s

performance was deficient and (2) that this deficient performance prejudiced defendant.

Domagala,

(citing Strickland,

).

¶ 57 To establish the first prong, that counsel’s performance was deficient, a defendant

must show “that counsel’s performance was objectively unreasonable under prevailing

professional norms.” Domagala,

. Counsel’s performance “must be

evaluated based on the entire record.” People v. Kirklin,

.

¶ 58 To establish the second prong, that this deficient performance prejudiced the

defendant, the defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

Domagala,

(citing Strickland,

). “[A] reasonable

probability that the result would have been different is a probability sufficient to undermine

confidence in the outcome—or put another way, that counsel’s deficient performance

rendered the result of the trial unreliable or fundamentally unfair.” People v. Evans,

(2004); People v. Colon,

(2007).

¶ 59 Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a

trial court may dismiss the claim if either prong is missing. People v. Peterson, 2017 IL

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No. 1-16-1267

120331, ¶ 79; People v. Cherry,

; People v. Flores,

(1992).

¶ 60 To establish the first prong, deficient performance, a defendant must overcome “the

strong presumption that the challenged action or inaction of counsel was the product of sound

trial strategy and not of incompetence.” People v. Coleman,

(1998).

Accord People v. Clendenin,

(2010); People v. Moore,

(2005). Our supreme court has instructed its appellate courts to “be highly

deferential to trial counsel on matters of trial strategy, making every effort to evaluate

counsel’s performance from his perspective at the time, rather than through the lens of

hindsight.” People v. Perry,

(2007). “[A] mistake in trial strategy” will

not, by itself, render representation constitutionally defective. Peterson,

,

¶ 80.

¶ 61 The failure to offer an instruction when the jury is clearly confused about an element

of the case may rise to the level of deficient performance. People v. Lowry,

(2004). However, such was not the case here. The jurors’ note did not indicate any

confusion about any aspect of the original instructions provided to them.

¶ 62 In general, “what instructions to tender” is a matter of trial strategy. Lowry,

; People v. Mims,

(2010) (“ ‘Defense counsel’s

choice of jury instruction is considered a tactical decision, within the discretion of defense

counsel.’ ” (quoting People v. Bobo,

(2007)). In the case at bar,

defense counsel may have been hoping for an outright acquittal, if the jurors simply kept

deliberating. The second question, which was submitted at the same time as the first and

which sought more information, indicated that the jurors were not deadlocked but were still

19

No. 1-16-1267

in the process of carefully reviewing the evidence and deliberating. At that moment, it

appeared that just three hours of this process had already produced three naysayers to the

State’s case. Defense counsel’s strategy seemed to be one of delay, where he asked the trial

court to instruct the jurors that the transcripts were not available “today,” thereby

encouraging them to continue to deliberate until tomorrow. The belief that time was on his

side was the product of strategy, not incompetence. As a strategic decision, we cannot find

that it was the result of ineffectiveness. While through the lens of hindsight, defendant now

views this strategy as mistaken, that does not mean that it was constitutionally deficient.

Perry,

(we must make “every effort to evaluate counsel’s performance

from his perspective at the time, rather than through the lens of hindsight”); Peterson,

(“a mistake in trial strategy” will not, by itself, render representation

constitutionally defective).

¶ 63 In support, defendant cites People v. Wilcox,

(2010), which bears

little resemblance to the case at bar. In Wilcox, the jury sent out a note stating that “ ‘[w]e are

11 to 1 on all 4 propositions.’ ” Wilcox,

. The defense counsel

suggested, and the State agreed, that the trial court should send back a note to the jurors

telling them “to continue to deliberate”—much as defense counsel agreed to do in the case at

bar. Wilcox,

. However, that is where any similarity ends. In Wilcox,

there was no issue about the instruction to “continue to deliberate.” Wilcox,

. What was at issue in Wilcox was what the trial court decided to add to that simple

directive. Wilcox,

. Over the defense counsel’s objection, the trial

court added that, when the jurors “ ‘were sworn in as jurors and placed under oath [they]

pledged to obtain a verdict’ ” and, further, that they should “ ‘obtain a verdict.’ ” Wilcox, 407

20

No. 1-16-1267

Ill. App. 3d at 163. It was these additions that defense counsel objected to, both before the

trial court and on appeal. It was these additions that caused this court to reverse on the

ground that the trial court’s response was coercive. However, since nothing like these

additions was present in our case, Wilcox does not affect the outcome here.

¶ 64 For the foregoing reasons, we do not find persuasive defendant’s claim that the trial

court’s response to the jury’s note requires reversal.

¶ 65 III. Sentencing

¶ 66 Lastly, defendant claims that the trial court abused its discretion when it sentenced

him to 7 years, which was at the lower end of the applicable 3 to 14 year sentencing range. 3

On appeal, the parties agree that the appropriate sentencing range was 3 to 14 years and that

defendant was sentenced within this range. Defendant was convicted of unlawful possession

of a weapon by a felon (UPW), and the UPW statute specifically provides that a “second or

subsequent violation” makes a defendant a Class 2 offender, thereby requiring a 3- to 14-year

sentencing range. 720 ILCS 5/24-1.1(e) (West 2014).

¶ 67 On appeal, defendant claims that the trial court (1) improperly concluded that

defendant was eligible for an extended term sentence, which would have required a minimum

of 7 years and a maximum of 14 years, and (2) improperly considered defendant’s prior

felony conviction in aggravation, thereby resulting in an impermissible double enhancement.

¶ 68 For the following reasons, we do not find these claims persuasive.

3 Fourteen minus three is eleven. Half of eleven is five and a half. Five and a half, plus the three- year minimum, means that the exact midpoint of the sentencing range would have been a sentence of eight and a half years. Since defendant received seven years, his sentence was in the lower half of the sentencing range, or less than the midpoint. 21

No. 1-16-1267

¶ 69 A trial court has broad discretion in sentencing and should be reversed only when it

abuses that discretion. People v. Snyder,

; People v. Patterson,

(2005). Generally, when a trial court considers a broad range of information—

including arguments in aggravation and mitigation, the presentence report, and any letters or

testimony submitted in support—and then sentences within the statutory range, a reviewing

court will not find an abuse of discretion. See Patterson,

. The trial court’s

sentencing determination is entitled to “substantial deference” because “the trial judge,

having observed the defendant and the proceedings, is in a much better position to consider

factors such as the defendant’s credibility, demeanor, moral character, mentality,

environment, habits and age.” Snyder,

; People v. Alexander,

(2010). A reviewing court will find an abuse of discretion in sentencing only

when the sentence is greatly at variance with the spirit or purpose of the law or manifestly

disproportionate to the nature of the offense. Snyder,

; Alexander,

.

¶ 70 First, defendant argues that the trial court’s statements at sentencing indicate that the

trial court found that an extended term sentence applied, that the minimum sentence for an

extended term was seven years, and that, as a result, defendant’s seven-year sentence

represented a failed attempt by the trial court to impose the minimum possible sentence. In

other words, defendant argues that the trial court was trying to impose the minimum but

blundered.

¶ 71 However, at sentencing, the trial court specifically stated, “I feel that the defendant’s

request for the minimum sentence is not warranted.” Thus, defendant’s argument that the

trial court was attempting to impose the minimum is simply not supported by the record.

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No. 1-16-1267

¶ 72 At sentencing, the trial court stated that, in the case at bar, “the minimum is three, the

maximum is 14.” Explaining its choice within that range, the trial court stated:

“I feel that the defense’s request for the minimum sentence is not warranted based

upon the background that I had detailed and likewise I feel the State’s request for

something in the significant or maximum range of 14 would not be where I would be

either. In my view, the appropriate sentence taking into account all of the factors in

aggravation and mitigation is 7 years in the Illinois [D]epartment of [C]orrections.”

Thus, the trial court was clear that its decision not to impose the three-year minimum was not

the result of some blunder, but the product of a careful decision-making process. As a result,

we do not find defendant’s first argument persuasive.

¶ 73 Second, defendant claims that his sentence was the result of an impermissible double

enhancement because, while fashioning an appropriate sentence within the applicable

sentencing range, the trial court considered the same prior felony conviction that the State

had used to establish an element of defendant’s UPW offense. In People v. Saldivar,

(1986), the Illinois Supreme Court held that reconsideration of a factor inherent in the

legislature’s definition of the offense is impermissible. However, in People v. Thomas,

(1996), our supreme court further explained the holding in Saldivar, stating:

“This court, in Saldivar, made it clear that although sentencing courts cannot consider

an element inherent in the offense as an aggravating factor, that rule would not be

rigidly applied, ‘thereby restricting the function of a sentencing judge by forcing him

to ignore factors relevant to the imposition of sentence.’ ” Thomas, 171 Ill. 2d at 226­

27 (quoting Saldivar,

).

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No. 1-16-1267

A reasoned judgment as to the proper penalty must include consideration of many relevant

factors, including the particular circumstances of the offense. Thomas,

;

Saldivar,

. Thus, “Saldivar allowed the sentencing court some discretion in

‘reconsidering’ as an aggravating factor *** that which, arguably, had already been

considered by the legislature in establishing the applicable sentencing range for the offense.”

Thomas,

. Based on Saldivar, the Thomas court found that, “while the fact

of a defendant’s prior convictions determines his eligibility” for a particular sentence, “it is

the nature and circumstances of these prior convictions which, along with other factors in

aggravation and mitigation, determine the exact length of that sentence.” (Emphases in

original.) Thomas,

.

¶ 74 Similarly, in the case at bar, the trial court considered, one by one, all the statutory

aggravating and mitigating factors, including defendant’s prior criminal history. The trial

court reviewed defendant’s entire criminal history in detail from 2002 through 2015. While

discussing this history and the factors in aggravation and mitigation, the trial court included

the conviction that the State used to establish an element of the offense. After reviewing the

trial court’s statements at sentencing, we cannot find that the trial court ran afoul of the

guidelines set forth by our supreme court in Saldivar and Thomas. Thus, we do not find

defendant’s double-enhancement argument persuasive.

¶ 75 CONCLUSION

¶ 76 On appeal, defendant claimed (1) that the trial court erred in denying his motion to

suppress the gun, (2) that the trial court coerced a guilty verdict by telling the jurors to

continue to deliberate, and (3) that, in the alternative, his sentence must be vacated and his

24

No. 1-16-1267

case remanded for resentencing because the trial court improperly used an element of the

offense—namely, his prior felony conviction—as an aggravating factor.

¶ 77 For the foregoing reasons, we do not find defendant’s claims persuasive and affirm

his conviction and sentence.

¶ 78 Affirmed.

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