NOTICE

This order was filed under Supreme FILED NO. 4-17-0341 November 22, 2019 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County BRIAN BIRGE, ) No. 16CF159 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices DeArmond and Harris concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding (1) the trial court properly admonished the jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (2) the trial court did not deny defendant a fair sentencing hearing, (3) defendant was not denied effective assistance of counsel by counsel’s failure to object to the restitution order, and (4) the trial court’s restitution order complied with the requirements of the restitution statute.

¶2 In February 2017, a jury found defendant, Brian Birge, guilty of burglary (720

ILCS 5/19-1(a), (b) (West 2014)) and arson (720 ILCS 5/20-1(a)(1), (c) (West 2014)), both Class

2 felonies with mandatory Class X sentencing based on defendant’s criminal history (730 ILCS

5/5-4.5-95(b) (West 2014)). The trial court sentenced defendant to concurrent terms of 24 years

and 6 months’ imprisonment and ordered him to pay the victim $117,230 in restitution. ¶3 Defendant appeals, arguing (1) the trial court failed to properly admonish the

jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (2) he was

denied a fair sentencing hearing because the trial court erroneously considered (a) a factor

inherent in the offense in aggravation and (b) no factors in mitigation when imposing sentence,

(3) trial counsel was ineffective for failing to object to the restitution order, and (4) the restitution

order is invalid for failing to set forth the manner in which restitution is to be paid. We affirm the

trial court’s judgment.

¶4 I. BACKGROUND

¶5 In May 2016, the State charged defendant by information with burglary (count I)

(720 ILCS 5/19-1(a) (West 2014)) and criminal damage to property (count II) (720 ILCS 5/21-1

(West 2014)). In June 2016, the State charged defendant by supplemental information with arson

(count III) (720 ILCS 5/20-1(a)(1) (West 2014)). All three counts stemmed from defendant

allegedly entering a business, Chief City Vapor, in Livingston County at approximately 1:30

a.m. on May 28, 2016, without authority, and knowingly damaging it by means of fire.

Defendant faced mandatory Class X sentencing on counts I and III because of prior convictions.

See 730 ILCS 5/5-4.5-95(b) (West 2014).

¶6 A. Jury Trial

¶7 In February 2017, the case proceeded to a jury trial on counts I and III. (The State

dismissed count II—criminal damage to property—prior to trial.) The State informed the trial

court it previously extended a plea offer to defendant that included a 12-year prison sentence in

exchange for defendant’s agreement to plead guilty to both counts and pay the victim $117,230

in restitution. Defense counsel stated a counteroffer was tendered with a shorter term of

imprisonment but did not reference a counteroffer reducing the amount of restitution to be paid.

-2- ¶8 1. Voir Dire

¶9 During voir dire, the trial court separated the venire into two groups and

admonished each group regarding the principles enumerated in Illinois Supreme Court Rule

431(b) (eff. July 1, 2012) as follows:

“THE COURT: This is a criminal case as I mentioned. The Defendant is

presumed innocent. There are a number of propositions of law that you must be

willing to follow if you are going to serve as a juror in this case. So I am going to

recite those for you now. Please listen carefully as I will be asking if you

understand these principles of law and if you accept these principles of law.

A person accused of a crime is presumed to be innocent of the charge

against him. The fact that a charge has been made is not to be considered as any

evidence or presumption of guilt against the Defendant.

The presumption of innocence stays with the Defendant throughout the

trial and is not overcome unless from all of the evidence you believe the State

proved the Defendant’s guilt beyond a reasonable doubt.

The State has the burden of proving the Defendant’s guilt beyond a

reasonable doubt. The Defendant does not have to prove his innocence. The

Defendant does not have to present any evidence on his own behalf and does not

have to testify if he does not wish to. If the Defendant does not testify, that fact

must not be considered by you in any way in arriving at your verdict.

So by a show of hands, do each of you understand these principles of law?

PROSPECTIVE JURORS: (All hands raised.)

THE COURT: Okay. And do each of you accept these principles of law?

-3- PROSPECTIVE JURORS: (All hands raised.)”

¶ 10 2. Evidence Presented

¶ 11 Officer Brad Baird was on duty conducting routine patrol on May 28, 2016, at

approximately 1:30 a.m. when an individual flagged him down to advise him a building—

identified as the location of Chief City Vapor—was on fire. Baird was approximately one

hundred feet from the building and saw smoke and flames. When he approached the building,

Baird noticed the south-side door was ajar, the glass on the door had been broken, and “[t]here

was glass laying in front of the door and in the doorway[.]” Officer Baird then discovered a trail

of approximately 10 to 12 items that “appeared to come from the Chief City Vapor building” and

led “towards the railroad tracks and to the east.” The trail ultimately “led to an area southeast of

the *** building where there were several boxes with hundreds of items.”

¶ 12 Officer Jonathan Marion was on duty conducting routine patrol on May 28, 2016,

at approximately 1:30 a.m. when he responded to a report of a structure fire at Chief City Vapor.

Officer Marion saw “heavy smoke in the area” and “flames showing from inside the building.”

Marion testified Officer Baird, another officer, and the individual who flagged down Baird were

already at the scene when he arrived. The only other person in the vicinity was an individual

walking down a street located one block south of Chief City Vapor. Officer Marion approached

the individual and identified him in court as defendant. Officer Marion noticed defendant’s hand

was bleeding. Defendant told Marion he “cut it on a lawn mower blade working on a lawn

mower.” Marion testified defendant was wearing “a coat and a hoodie with glass shards and

plastic tags stuck to his clothing and his legs.” Defendant consented to a search of his person.

Officer Marion recovered two pairs of pliers, a large amount of change, a set of keys, a lighter,

and approximately $115 in cash. Marion also testified defendant told him he (defendant) did not

-4- start the fire, even though Marion never asked defendant about the fire and the fire was not

visible from where they were standing.

¶ 13 Tom Roe testified he owned Chief City Vapor. He did not give anyone permission

to enter the building after the store closed on the night of the fire. Roe kept change and

approximately $100 in cash in the store’s cash register; the keys discovered on defendant’s

person unlocked the outbuildings on the property; and the keys were always stored in his desk

located inside of the building. Roe also identified the trail of items discovered outside of the

building as property of his business. When asked about the damage the fire caused, Roe testified,

“We had to gut the entire building down to pulling the studs, pulling the insulation, furnace. I

mean, everything was lost[,]” including the merchandise and furniture.

¶ 14 Defendant testified he “had overdosed on drugs” approximately 12 hours prior to

the fire and had been hospitalized. When discharged, defendant’s mother dropped him off at

“Aly Anne’s” to gamble, which was located close to where Officer Marion later questioned

defendant. Defendant testified he did not remember many of the details from the relevant time

because he was heavily medicated, drinking, and using drugs. He testified he remembered

leaving Aly Anne’s and walking to his sister’s house. Defendant knocked on the door, but his

sister did not answer so he decided to return to Aly Anne’s to continue gambling. On his walk

back, he observed “some commotion going on” and people “running back and forth from a

vehicle” parked near Chief City Vapor. He watched as they drove away. Defendant then noticed

“stuff scattered on the road over across the [railroad] tracks.” One of the items was a jacket,

which he put on. Defendant testified he went through the pockets of the jacket and cut his hand

on glass. He remembered talking to Officer Marion “a little bit” but did not recall discussing the

-5- cut on his hand. Defendant denied any involvement with the fire and testified he “never even set

foot on that facility whatsoever.”

¶ 15 Following closing arguments, the jury found the State proved defendant guilty of

both counts beyond a reasonable doubt.

¶ 16 B. Sentencing Hearing

¶ 17 At a March 2017 sentencing hearing, a presentence investigation report (PSI) was

admitted without objection. It showed defendant had four prior felony convictions—aggravated

criminal sexual abuse, residential burglary, unlawful possession of a controlled substance, and

theft—and two felony probation revocations. Defendant reported no physical or mental health

issues but did report a history of substance abuse. The PSI also recommended the trial court

order defendant to pay restitution to the victim. Although a letter had been sent to the victim

requesting restitution information, the victim had not responded. The PSI noted defendant “may

have difficulty paying” restitution.

¶ 18 The State recommended a sentence in excess of 20 years, arguing the following

factors in aggravation: (1) defendant’s criminal history, (2) his conduct caused serious harm, and

(3) deterrence. The State also requested defendant pay $117,230 in restitution; defendant did not

object to the State’s request. Defendant recommended the minimum sentence permissible by

statute, offering the following in mitigation: (1) he attempted suicide shortly before commission

of the crimes and (2) he was under the “residual[ ]” influence of “a variety of substances” at the

time.

¶ 19 The trial court stated the following in regard to the applicable aggravating and

mitigating factors:

-6- “THE COURT: *** I don’t want there to be any suggestion in the record

that the Court is somehow double enhancing on [defendant’s] prior record. It’s, it

is not a good record. But in terms of an aggravating factor, I do recognize that it is

the basis for the enhancement to the Class X sentencing.

But I bring that up as the first point because it is a serious, serious case;

and one of the factors the Court is to consider is deterrence. That’s a very strong

factor I guess depending on the type of case that we’re dealing with. But in this

case, deterrence is a very strong factor for the Court to consider.

We see a lot of stuff in Livingston County that’s not good, a lot of drug

related offenses; and I understand that [defendant] believes that in part this is

related to drug offenses or a drug addiction. But what we see typically with drug

cases are people harming themselves or perhaps, not to minimize it, but less

serious property crimes such as, you know, stealing change or something like that.

Still a serious matter but the lack of respect for somebody’s property when you

are talking about items of change located in a car versus causing substantial harm

to somebody’s business I think are two very different things.

***

There simply is no set of circumstances at all that justify what happened

here. *** The testimony or the story from [defendant] was perhaps not bizarre but

pretty close. It was pretty inconsistent and not very logical which I think the jury

found to not be credible, and I think based upon my assessment of it I didn’t think

[defendant] was all that credible either. And [I] say that because the other matters

that get raised such as excuses for your conduct here, they don’t carry a lot of

-7- weight when it appears that you are going to say and do anything that you feel

like at the moment.

You know, in general I try to have pretty, I have faith I guess in people

that deep down most people want to do what’s right. Most people try to do what’s

right. Addicts have a very difficult time with that, but primarily they hurt

themselves. You’re not the same type of addict that we’re accustomed to dealing

with in here because you don’t just harm yourself. You harm the community

around you in big ways. You have absolutely no respect for anybody’s home,

business, property. Like I said, if you are stealing change out of a car, that’s one

thing. Breaking into people’s homes, that’s a residential burglary. Breaking into

people’s businesses and destroying them?

***

So I do think that deterrence is a factor. Obviously your conduct caused

serious harm. And your prior record not just the factor or not just the convictions

that caused, are cause for the enhancement but your other record as well. You

consistently have demonstrated a lack of regard for society, rules, other people, so

there’s just no way in this case that a minimum sentence would be appropriate.

I do not believe there are any [mitigating] factors here. I recognize

[defendant] thinks that he might have overdosed the night before. Maybe he did.

That still doesn’t excuse the conduct. *** And so I can’t imagine wanting to have

you back here anytime soon for the protection of the community.”

¶ 20 The trial court sentenced defendant on both counts to 24 years and 6 months’

imprisonment, with the sentences to run concurrently. The court also ordered defendant to pay

-8- the victim $117,230 in restitution. The written restitution order stated the following: “Defendant

shall pay all said restitution ***, in any event within five (5) years after this date, and as follows:

*** full payment within 12 months after defendant’s release from imprisonment in this case.”

¶ 21 C. Motion to Reconsider Sentence and Hearing

¶ 22 On March 23, 2017, defendant filed a motion to reconsider sentence. Defendant

argued the sentence was excessive in light of the evidence presented and the court failed to

consider the following mitigating factors: (1) defendant did not contemplate his criminal conduct

would cause or threaten serious harm, (2) there were substantial grounds tending to excuse or

justify defendant’s criminal conduct “in that [he] was recently hospitalized for an attempted

suicide from an overdose of medication and other substances,” (3) defendant’s conduct was the

result of circumstances unlikely to recur if he receives the proper addiction and mental health

treatment, (4) his imprisonment would entail excessive hardship to his dependents, and (5) his

imprisonment would endanger his medical condition. See 730 ILCS 5/5-5-3.1(a)(2), (4), (8),

(11), (12) (West 2014).

¶ 23 On April 25, 2017, the trial court conducted a hearing on defendant’s motion.

Defense counsel stated: “The thing we wanted the Court to reconsider really was the fact

[defendant] had been recently hospitalized just prior to this incident occurring and had just been

released from the emergency room *** after attempting suicide taking several medications.” The

trial court denied defendant’s motion, reasoning as follows:

“THE COURT: Well, there are a number of mitigating factors in this case.

There’s aggravating factors in this case which, all of which were discussed and

weighed in great detail at the original sentencing hearing. I haven’t heard

-9- anything new here today that was not previously brought to the Court’s attention

or considered by the Court.

So I think the sentence is within the range prescribed by statute. I think

that the Court properly balanced the factors in aggravation in mitigation,

specifically the mitigating factors raised again today. And I believe that the

aggravating factors here do outweigh the mitigating factors, and the sentence is

appropriate so the motion to reconsider the sentence is denied.”

¶ 24 This appeal followed.

¶ 25 II. ANALYSIS

¶ 26 On appeal, defendant argues (1) the trial court failed to properly admonish the

jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (2) he was

denied a fair sentencing hearing because the trial court erroneously considered (a) a factor

inherent in the offense in aggravation and (b) no factors in mitigation when imposing sentence,

(3) trial counsel was ineffective for failing to object to the restitution order, and (4) the restitution

order is invalid for failing to set forth the manner in which restitution is to be paid.

¶ 27 A. Juror Admonishments

¶ 28 Defendant first argues the trial court failed to properly admonish the prospective

jurors as set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). He contends the trial

court “impermissibly conflated all four principles” in the rule and asked whether the prospective

jurors understood and accepted this “one broad instruction” rather than asking if the prospective

jurors understood and accepted each individual principle. Defendant concedes he forfeited this

argument by failing to object at trial and raise the alleged error in a posttrial motion but asks this

- 10 - court to review it under the first prong of the plain-error doctrine. See People v. Sebby,

,

.

¶ 29 Under the plain-error doctrine, we may consider a forfeited claim 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.” People v. Piatkowski,

,

, 410-

11 (2007). The first step in plain-error analysis is to determine whether clear or obvious error

occurred. Sebby,

, ¶ 49. We will review de novo whether the trial court

committed clear or obvious error by failing to comply with Rule 431(b). See People v.

Thompson,

,

(2010).

¶ 30 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires trial courts to read

four principles of law to prospective jurors and determine whether they understand and accept

those principles. It states:

“The court shall ask each potential juror, individually or in

a group, whether that juror understands and accepts the following

principles: (1) that the defendant is presumed innocent of the

charge(s) against him or her; (2) that before a defendant can be

convicted the State must prove the defendant guilty beyond a

reasonable doubt; (3) that the defendant is not required to offer any

evidence on his or her own behalf; and (4) that if a defendant does

not testify it cannot be held against him or her; however, no

- 11 - inquiry of a prospective juror shall be made into the defendant’s

decision not to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an

opportunity to respond to specific questions concerning the

principles set out in this section.” Ill. S. Ct. R. 431(b) (eff. July 1,

2012).

¶ 31 Our supreme court has interpreted the language of Rule 431(b) to mandate a

“specific question and response process.” Thompson,

. “The trial court must ask

each potential juror whether he or she understands and accepts each of the principles in the rule.”

Next, “the rule requires an opportunity for a response from each prospective juror on their

understanding and acceptance of those principles.”

Citing Thompson, this court, in People v.

Curry,

,

, made the following suggestion to trial

courts regarding compliance with Rule 431(b):

“Indicate to the potential jurors the court will go over some

principles of law to ensure they understand and accept the

principles of law. Thereafter, read verbatim the four principles

outlined in Rule 431(b). Then, ask jurors individually or in a group

whether they understand and accept the principles, giving each

juror an opportunity to respond in a manner that ensures his or her

understanding and acceptance or lack thereof, is a matter of

record.”

¶ 32 The trial court in this case followed both the “specific question and response

process” outlined in Thompson and this court’s suggestion in Curry. The trial court first

- 12 - indicated to the prospective jurors it would ask them if they understood and accepted certain

principles of law. Thereafter the court read each of the four principles outlined in Rule 431(b).

Then, the court asked the prospective jurors whether they understood the principles and whether

they accepted the principles. The prospective jurors affirmatively responded they understood and

accepted the principles. Rule 431(b) requires nothing further. See Thompson,

.

Thus, we find no error occurred with the Rule 431(b) admonishments in this case.

¶ 33 Defendant nevertheless argues compliance with Rule 431(b) requires the trial

court to ask for juror acceptance and understanding after recitation of each individual principle,

not after recitation of all four principles. Defendant relies on People v. Othman,

, for this proposition. In Othman, the First District stated the following regarding

compliance with Rule 431(b):

“In criminal trials, Illinois judges are required to ask the

venire eight simple questions: (1) defendant is presumed innocent:

(a) do you understand that? (b) do you accept it?; (2) defendant is

not required to offer any evidence on his own behalf: (a) do you

understand that? (b) do you accept it?; (3) defendant must be

proved guilty beyond a reasonable doubt by the State: (a) do you

understand that? (b) do you accept it?; and (4) the failure of

defendant to testify on his own behalf cannot be held against him:

(a) do you understand that? (b) do you accept it?” Id. ¶ 60.

¶ 34 To the extent Othman may be inconsistent with our conclusion here, we note we

are not bound by the First District’s decision. See People v. Maggio,

,

; see also O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d

- 13 - 421, 440,

, 1006-07 (2008) (“[T]he opinion of one district, division, or panel of

the appellate court is not binding on other districts, divisions, or panels.”). Even if Othman was

binding authority, we would not find clear or obvious error in this case as Othman was decided

two years after defendant’s trial. See People v. Williams,

,

(“Plain-error review is reserved for errors that are clear or obvious based on law that

is well settled at the time of trial; if the law was unclear at the time of the trial, but becomes clear

(i.e., settled) during the appeal, then the error is not plain for purposes of the plain-error

doctrine.” (Internal quotation marks omitted.)). Because no clear or obvious error occurred, we

need not address whether the evidence was closely balanced, and we will honor defendant’s

forfeiture of his Rule 431(b) argument. See People v. Naylor,

,

(2008).

¶ 35 B. Sentencing Hearing

¶ 36 Defendant next argues he was denied a fair sentencing hearing because the trial

court erroneously considered (1) a factor inherent in the offense in aggravation and (2) no factors

in mitigation when imposing his sentence.

¶ 37 1. Aggravating Factors

¶ 38 Defendant contends it “was improper for the trial court to consider in aggravation

at sentencing that [he] caused ‘substantial harm’ to the business, to himself, and to the

community” because his conduct caused no greater harm than that which was inherent in the

offense. He states we “should apply the same analysis to the felony crimes of burglary and

arson” but cites no authority in support of this proposition. The State concedes harm “may be”

inherent in the offense of arson, but argues it is not inherent in the offense of burglary. Defendant

does not respond to the State’s argument in his reply brief, and we therefore decline to accept his

- 14 - conclusory assertion it is improper for a trial court to consider harm as a factor in aggravation

when sentencing a defendant convicted of burglary.

¶ 39 The Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.1, 5-5-3.2

(West 2014)) lists mitigating and aggravating factors the trial court must consider when

determining an appropriate sentence. One such factor the trial court may consider in aggravation

is whether “the defendant’s conduct caused or threatened serious harm ***.” 730 ILCS 5/5-5-

3.2(a)(1) (West 2014). The trial court cannot, generally speaking, use this factor as an

aggravating factor in sentencing if it is implicit in the offense for which the defendant was

convicted. See People v. Phelps,

,

(2004) (“Generally,

a factor implicit in the offense for which the defendant has been convicted cannot be used as an

aggravating factor in sentencing for that offense. [Citation.] Stated differently, a single factor

cannot be used both as an element of an offense and as a basis for imposing ‘a harsher sentence

than might otherwise have been imposed.’ ” (quoting People v. Gonzalez,

,

(1992))). This dual use of a single factor is referred to as a “double

enhancement.” Id. at 12.

¶ 40 Our supreme court has explained when a trial court may diverge from the general

rule and properly consider in aggravation a factor that is arguably implicit in the offense:

“[T]he commission of any offense, regardless of whether the

offense itself deals with harm, can have varying degrees of harm or

threatened harm. The legislature clearly and unequivocally

intended that this varying quantum of harm may constitute an

aggravating factor. While the classification of a crime determines

the sentencing range, the severity of the sentence depends upon the

- 15 - degree of harm caused to the victim and as such may be considered

as an aggravating factor in determining the exact length of a

particular sentence, even in cases where serious bodily harm is

arguably implicit in the offense for which a defendant is

convicted.” (Emphases in original.) People v. Saldivar,

,

(1986).

Thus, when considering whether to find “serious harm” an aggravating factor, “the sentencing

court compares the conduct in the case before it against the minimum conduct necessary to

commit the offense.” People v. Hibbler,

,

. We

review de novo whether the trial court relied upon an improper factor at sentencing. See Id. ¶ 65.

¶ 41 Even assuming “serious harm” is a factor implicit in the offense of arson, the trial

court properly considered that factor in aggravation because defendant’s conduct caused a degree

of harm far greater than that which would have been caused by the minimum conduct necessary

to commit the offense. “A person commits arson when, by means of fire or explosive, he or she

knowingly *** [d]amages any real property, or any personal property having a value of $150 or

more, of another without his or her consent ***.” 720 ILCS 5/20-1(a)(1) (West 2014). Here,

defendant did not merely damage the victim’s building; as the trial court noted at sentencing,

defendant essentially “destroy[ed]” the building. The victim testified at trial he “had to gut the

entire building down to pulling the studs, pulling the insulation, furnace.” He further testified

“everything was lost[,]” including all of the merchandise and furniture located in the building.

Accordingly, we conclude the trial court properly considered the serious harm caused by

defendant’s conduct in aggravation when determining the severity of his sentence.

¶ 42 2. Mitigating Factors

- 16 - ¶ 43 Defendant also argues the trial court denied him a fair sentencing hearing “when

it failed to find any applicable mitigating factors.” Specifically, defendant contends the trial court

should have considered the following mitigating factors: (1) he did not contemplate his conduct

would cause or threaten serious harm, (2) his conduct was the result of circumstances unlikely to

recur if he received addiction and mental health treatment, and (3) his imprisonment would

endanger his medical condition. See 730 ILCS 5/5-5-3.1(a)(2), (8), (12) (West 2014).

¶ 44 As noted above, the Unified Code lists mitigating factors the trial court must

consider when determining an appropriate sentence. See 730 ILCS 5/5-5-3.1 (West 2014).

However, “[t]he trial court has no obligation to recite and assign value to each factor presented at

a sentencing hearing. [Citation.] Where mitigating evidence is presented to the trial court during

the sentencing hearing, we may presume that the trial court considered it, absent some indication

*** to the contrary.” People v. Hill,

,

(2011). “The

defendant bears the burden to affirmatively establish that the sentence was based on improper

considerations, and we will not reverse a sentence *** unless it is clearly evident the sentence

was improper.” People v. Etherton,

,

.

¶ 45 Reviewing courts give great deference to the trial court’s sentencing judgment

“because the trial judge, having observed the defendant and the proceedings, has a far better

opportunity to consider these factors than the reviewing court, which must rely on the ‘cold’

record.” (Internal quotation marks omitted.) People v. Alexander,

,

(2010). “The trial judge has the opportunity to weigh such factors as the

defendant’s credibility, demeanor, general moral character, mentality, social environment, habits,

and age. [Citations.] Consequently, the reviewing court must not substitute its judgment for that

of the trial court merely because it would have weighed these factors differently.” (Internal

- 17 - quotations and citations omitted.)

Accordingly, we “may not alter a defendant’s sentence

absent an abuse of discretion by the trial court.”

.

¶ 46 Defendant attempts to affirmatively rebut the presumption the trial court properly

considered the mitigating evidence presented by pointing to an alleged contradiction between

two statements made by the trial court. At the sentencing hearing, the trial court stated, “I do not

believe there are any [mitigating] factors here”; yet at the hearing on defendant’s motion to

reconsider, the court stated, “there are a number of mitigating factors in this case.” When

viewing the record as a whole, these two statements do not contradict one another. The former

statement merely indicates the trial court found no mitigating factors outweighed the applicable

aggravating factors, not, as defendant argues, that the trial court failed to even consider the

mitigating evidence presented.

¶ 47 On the contrary, the record clearly shows the trial court considered the mitigating

factors defendant raises on appeal. The trial court heard the evidence presented at trial, including

defendant’s testimony regarding (1) the events surrounding the commission of the crime, (2) his

substance abuse problems, and (3) his overdose and hospitalization prior to the night of the

offense but “didn’t think [defendant] was all that credible ***.” The court stated it would not

give much weight to the mitigating factors defendant raised as “they don’t carry a lot of weight

when it appears that you are going to say and do anything that you feel like at the moment.” The

trial court further discussed defendant’s drug addiction and found it was outweighed by the

serious harm he caused, especially in comparison to the harm caused by others struggling with

drug addiction problems in Livingston County, and by his extensive criminal history, which

included four prior felony convictions and two felony probation revocations. The record

indicates the court properly considered the mitigating factors defendant raises on appeal, found

- 18 - them to be outweighed by the applicable aggravating factors, and did not give them much weight

because it did not find defendant credible.

¶ 48 We find defendant failed to satisfy his burden to affirmatively rebut the

presumption the trial court properly considered the relevant mitigating evidence and conclude the

trial court did not abuse its discretion in sentencing defendant to concurrent terms of 24 years

and 6 months’ imprisonment.

¶ 49 C. The Restitution Order

¶ 50 Defendant next argues the trial court’s restitution order is invalid because (1) it

lacks a sufficient evidentiary basis for the $117,230 amount (see 730 ILCS 5/5-5-6(b) (West

2014) (“[T]he court shall assess the actual out-of-pocket expenses, losses, damages, and injuries

suffered by the victim ***.”)) and (2) does not set forth the manner in which restitution is to be

paid (see 730 ILCS 5/5-5-6(f) (West 2014) (“[T]he court shall determine whether restitution

shall be paid in a single payment or in installments, and shall fix a period of time *** within

which payment of restitution is to be paid in full.”)). Defendant did not object to the restitution

order in the trial court.

¶ 51 1. Compliance With Section 5-5-6(b) of the Unified Code

¶ 52 Defendant contends the trial court’s restitution order is in violation of section 5-5-

6(b) of the Unified Code (730 ILCS 5/5-5-6(b) (West 2014)) because the “restitution number had

no evidentiary basis and was simply declared by the State and accepted by the court.” Defendant

argues trial counsel rendered ineffective assistance by failing to object to this alleged lack of

evidentiary support for the amount. Alternatively, he contends the trial court committed plain

error by entering a restitution order without a sufficient evidentiary basis.

¶ 53 a. Ineffective Assistance of Counsel

- 19 - ¶ 54 Criminal defendants have a constitutional right to the effective assistance of

counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. “To prevail on a claim of

ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was

deficient and that the deficient performance prejudiced the defendant.” People v. Domagala,

,

(citing Strickland v. Washington,

(1984)). Specifically, “a defendant must show that counsel’s performance was objectively

unreasonable under prevailing professional norms and that there is a ‘reasonable probability that,

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

(quoting Strickland,

). “A defendant must satisfy both prongs of the Strickland

test and a failure to satisfy any one of the prongs precludes a finding of ineffectiveness.” People

v. Simpson,

,

. “When a claim of ineffective assistance of

counsel was not raised at the trial court, our review is de novo.” Hibbler,

.

¶ 55 Even assuming counsel’s performance was deficient, defendant’s ineffective-

assistance claim still fails because he cannot demonstrate prejudice. Defendant makes no

argument the restitution amount was incorrect. Instead, he merely asserts the result would have

been different “because the restitution amount would either be supported by evidence, altered, or

would not have been ordered at all.” Defendant admits it is possible the amount would have been

supported by evidence even if counsel had objected, and thus, the result of the proceeding would

not have been different. Given the victim’s testimony he “had to gut the entire building” and

“everything was lost” in the fire, we believe the restitution amount is not unsupported by the

evidence in the record. Defendant’s failure to demonstrate he was prejudiced by counsel’s

performance “precludes a finding of ineffectiveness.” Simpson,

, ¶ 35.

- 20 - ¶ 56 b. Plain Error

¶ 57 Alternatively, defendant contends the trial court committed plain error by entering

a restitution order without a sufficient evidentiary basis. Relying on People v. Jones,

,

(1990), defendant asks this court to review this forfeited claim

under the second prong of the plain-error doctrine because sentencing “affects [his] fundamental

right to liberty.” “The ultimate question of whether a forfeited claim is reviewable as plain error

is a question of law that is reviewed de novo.” People v. Johnson,

,

(2010).

¶ 58 In Jones, the Second District found the trial court erred by ordering the defendant

to pay restitution in an amount “unsupported by the evidence ***.” Jones,

. The Jones court further “notice[d] such error under the plain[-]error [doctrine]” because

“[p]lain error may be considered where, as here, the record clearly shows that an alleged error

affecting substantial rights was committed.”

This court has declined to follow the Second

District’s decision in Jones. See People v. Hanson,

,

. In Hanson, this court stated the following:

“ ‘[I]t is not a sufficient argument for plain[-]error review to

simply state that because sentencing affects the defendant’s

fundamental right to liberty, any error committed at that stage is

reviewable as plain error. Because all sentencing errors arguably

affect the defendant’s fundamental right to liberty, determining

whether an error is reviewable as plain error requires more in-

depth analysis.’ ”

. (quoting People v. Rathbone,

,

(2008)).

- 21 - ¶ 59 This court rejected the defendant’s claim in Hanson “that the trial court

committed plain error by accepting the State’s representation that the restitution amount was

$490.82 without requiring that further evidence be presented to prove the accuracy of that

amount.” Id. ¶ 40. We stated further:

“[The restitution statute] does not mandate that the court fix the

amount of restitution based upon any specific type of evidence, nor

does the statute prohibit the parties from stipulating as to the

proper amount (which is essentially what happened here when

neither defendant nor his counsel contested the $490.82 figure).

Given the specificity of the *** figure, we doubt that the State just

made up that amount without any basis for requesting it. The only

alleged error is the absence of some type of auto-shop receipt or

testimony in the record proving that the victim incurred $490.82 in

damage to her car. We cannot accept that this type of error is

‘sufficiently grave that it deprived the defendant of a fair

sentencing hearing’ [citation] or such an affront to defendant’s

substantial rights [citation] that it cannot be subject to forfeiture

***.” Id.

¶ 60 We initially note defendant’s plain error argument is simply the sentencing error

“affects [his] fundamental right to liberty”; he fails to engage in the “more in-depth analysis”

necessary to determine whether the alleged error is reviewable as plain error. Id. ¶ 37. Moreover,

we find the alleged error here—the lack of some receipt or testimony in the record proving the

restitution amount—was not sufficiently grave that it denied defendant a fair sentencing hearing.

- 22 - As we noted in Hanson, the restitution statute “does not mandate that the court fix the amount of

restitution based upon any specific type of evidence,” and, “[g]iven the specificity of the

[$117,230] figure, we doubt that the State just made up that amount without any basis for

requesting it.” Id. ¶ 40. It is likely the trial court simply ordered defendant to pay restitution in

the stated amount without further evidentiary support because the parties had discussed

restitution and agreed as to the proper amount of restitution. Neither defendant nor his counsel

contested the amount of restitution referenced by the State when the parties discussed plea

negotiations with the court or when the State requested restitution at the sentencing hearing.

Accordingly, we conclude defendant’s forfeited claim is not reviewable as plain error and we do

not address it on the merits. See id. ¶ 41.

¶ 61 2. Compliance With Section 5-5-6(f) of the Unified Code

¶ 62 Defendant also contends the trial court’s restitution order is in violation of section

5-5-6(f) of the Unified Code (730 ILCS 5-5-6(f) (West 2014)) because the court (1) specified

“two time frames” in which the payment was to be made and (2) did not specify the manner of

payment, i.e., single payment or installments. Defendant acknowledges forfeiture of this

argument and asks this court to review his argument under the second prong of the plain-error

doctrine. Alternatively, defendant contends counsel rendered ineffective assistance by failing to

object to an invalid restitution order. Because we find no error occurred, we reject both of

defendant’s contentions.

¶ 63 Section 5-5-6(f) of the Unified Code provides, in pertinent part, the trial court

“shall determine whether restitution shall be paid in a single payment or in installments, and shall

fix a period of time not in excess of 5 years, *** not including periods of incarceration, within

which payment of restitution is to be paid in full.” 730 ILCS 5/5-5-6(f) (West 2014).

- 23 - “Compliance with this statute is mandatory.” (Internal quotation marks omitted.) Hibbler,

. “We review the validity of a restitution order de novo.” People v.

Moore,

,

.

¶ 64 The trial court’s written restitution order states the following: “Defendant shall

pay all said restitution ***, in any event within five (5) years after this date, and as follows: ***

full payment within 12 months after defendant’s release from imprisonment in this case.”

Defendant contends the restitution order gives two conflicting dates by which the payment is to

be made (i.e., (1) within five years of this date and (2) within 12 months after defendant’s release

from imprisonment). However, the language containing the five-year time period is merely an

attempt to incorporate the general statutory mandate that the time period cannot be “in excess of

5 years, *** not including periods of incarceration ***.” 730 ILCS 5/5-5-6(f) (West 2014). This

language does not apply to defendant’s specific case because the trial court indicated in his case

he is to pay “within 12 months after [his] release from imprisonment,” which complies with the

five-year limit mandated by statute. The trial court’s restitution order also properly indicates the

manner in which defendant is to pay. The written order contains an option for “monthly

payments” or “full payment.” Here, the trial court selected “full payment,” which indicates

defendant is to make a single payment as opposed to installments. Thus, the order clearly

indicates both (1) the time period—within 12 months of his release from prison—and (2) the

manner—single payment—in which the restitution is to be paid. Accordingly, we find the trial

court complied with the restitution statute and the restitution order is valid.

¶ 65 III. CONCLUSION

¶ 66 For the reasons stated, we affirm the trial court’s judgment.

¶ 67 Affirmed.

- 24 -