NOTICE

FILED This Order was filed under March 23, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-18-0687 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macon County CHARLES L. FITZPATRICK, ) No. 17CF1575 Defendant-Appellant. ) ) Honorable ) James R. Coryell, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Justices Cavanagh and Steigmann concurred in the judgment.

ORDER

¶1 Held: The trial court’s Rule 431(b) admonishments were appropriate, defendant was not denied a fair trial, and the court’s sentence was not excessive. ¶2 In October 2017, defendant, Charles L. Fitzpatrick, was charged by information

with five offenses, including: attempt (first degree murder) a Class X felony, punishable by 6 to

30 years’ incarceration, with a special sentencing add-on of 25 years to life due to an aggravating

factor, i.e., personal discharge of a firearm causing great bodily harm (count I) (720 ILCS

5/8-4(a), (c)(1)(D), 9-1(a)(1) (West 2016)); aggravated battery with a firearm, a Class X felony,

punishable by 6 to 30 years’ incarceration (count II) (720 ILCS 5/12-4.2(a)(1) (West 2016));

aggravated discharge of a firearm, a Class 1 felony punishable by 4 to 15 years’ incarceration

(count III) (720 ILCS 5/24-1.2(a)(2) (West 2016)); unlawful possession of a weapon by a felon,

a Class 2 felony punishable by 3 to 14 years’ incarceration (count IV) (720 ILCS 5/24-1.1(a)

(West 2016)); and unlawful possession of a weapon by a felon, a Class 2 felony punishable by 3 to 14 years’ incarceration (count V) (720 ILCS 5/24-1.1(a) (West 2016)). In November 2017, the

State filed an additional count alleging armed habitual criminal, a Class X felony (count VI) (720

ILCS 5/24-1.7(a) (West 2016)).

¶3 In July 2018, the case proceeded to a jury trial on counts I and II after the State

moved to dismiss counts III-V and the court granted defendant’s motion to sever count VI. After

a three-day trial, the jury found defendant guilty of both counts and found the State proved the

aggravating factor of great bodily harm caused by defendant personally discharging a firearm.

After a presentence investigation and report, defendant was sentenced to 30 years in the Illinois

Department of Corrections (DOC) on count I (attempt (first degree murder)) with a 35-year

enhancement plus 3 years of mandatory supervised release. Defendant’s motion to reconsider the

sentence was denied, and defendant appeals.

¶4 I. BACKGROUND

¶5 In October 2017, defendant was charged with attempt (first degree murder),

aggravated battery with a firearm, aggravated discharge of a firearm, and two counts of unlawful

possession of a weapon by a felon arising from the shooting of 70-year-old Rafael Graham in

Decatur. Graham was driving his 2004 BMW on a city street at around 6:15 p.m. when he

encountered “an entourage of hooded people” in the middle of the street. As Graham attempted

to maneuver around them, he heard a loud noise and realized his passenger side mirror had been

broken off. When he stopped the car, a person he later identified as defendant knocked on the

passenger-side window, so Graham rolled it down. The defendant leaned into his car, telling

Graham, “ ‘You hit me.’ ” When Graham suggested calling 9-1-1, the person he identified as

defendant told him to go ahead if he wanted to but that Graham had “ ‘f***ed up and you going

to pay me.’ ” Graham told the person he had no money, then heard four gunshots and realized he

-2- had been shot. He never testified to having seen defendant holding a gun and did not see any

muzzle flashes at the time shots were fired. However, he identified defendant as the person who

was crouched down and leaning inside his passenger-side window when the shots were fired.

Graham was hit by three of the four shots, one through his right arm and two to his right lower

torso. He eventually had to undergo surgery for a lacerated liver.

¶6 Graham identified defendant in a photo line-up prepared and conducted by the

Decatur police, and defendant was arrested. An eyewitness, Christina Anderson, identified

defendant as the person she saw leaning into the passenger-side window of Graham’s car

immediately before she heard several gunshots. All the individuals seen in the vicinity of

Graham’s car fled immediately after the gunshots. No gun was found at the scene; however, four

.380-caliber shell casings were found both inside and outside the car, and two slugs were found

inside, one in the console and one on the driver’s seat.

¶7 Officers arrested defendant almost a week later at his residence, which was seven

or eight blocks from the shooting, and executed a search warrant, recovering a cell phone with

defendant’s identification attached. Defendant’s cell phone records were obtained through a

separate search warrant and were stipulated into evidence by the parties. From those records,

Decatur police were able to place defendant’s phone within 200 meters of the scene at the time

of the shooting.

¶8 In July 2018, defendant proceeded to trial. As part of its case-in-chief, over

defendant’s objection, the State was permitted to elicit testimony from defendant’s parole agent

and a representative of the electronic monitoring service associated with the ankle monitor

defendant was required to wear at the time. The ankle bracelet records revealed that on the date

of the shooting, defendant was away from his residence from 4:53 p.m. to 6:59 p.m.—a period

-3- which encompassed the shooting at approximately 6:15 p.m. Defendant’s parole agent testified

his absence was authorized but that defendant failed to attend a scheduled meeting that same

evening at 7:20 p.m. and failed to appear for another the next day at 11:01 a.m. The jury was

instructed this evidence was admitted solely to establish defendant’s physical location and state

of mind.

¶9 Defendant elected not to testify in his own defense, and the jury found defendant

guilty of the two counts remaining after the State had earlier moved to dismiss three counts and

agreed to a severance of the later filed armed habitual criminal count. According to the trial

court’s docket entry, after three days of trial, the jury retired to deliberate at 3:28 p.m. and

returned verdicts of guilty at 4:21 p.m.

¶ 10 Defendant’s posttrial motion, filed in August 2018, claimed: (1) defendant was

not proved guilty beyond a reasonable doubt, (2) the trial court erred in permitting evidence of

defendant’s parole status and electronic monitoring, (3) the trial court erred in overruling three

specific testimonial objections, and (4) the trial court erred in admitting two exhibits and three

photographs over defendant’s objection. The trial court denied defendant’s motion.

¶ 11 Defendant was sentenced in September 2018. At sentencing, the victim, Rafael

Graham, read his victim impact statement, and the State presented four police witnesses in

aggravation. Officer Scott Gilman testified about an incident in May 2009 where defendant

became involved in an altercation at the drive-thru window of a local McDonald’s. The driver of

the vehicle in which defendant was a passenger began arguing with the employee when the

victim, who was the night manager, attempted to intervene. When she did, defendant exited the

passenger side of the car, approached the drive-thru window, and sprayed her in the face with

pepper spray. Apprehended shortly thereafter and identified by the victim at the scene during a

-4- show-up, defendant admitted spraying her with the pepper spray. As a result, defendant was

charged with aggravated battery in Macon County case No. 09-CF-842, for which he received a

sentence of three and a half years in DOC.

¶ 12 Detective Brian Kaylor of the Decatur Police Department testified about his

investigation of a shooting at a Decatur nightclub in March 2012 in which five people were shot.

Only one of the five victims could positively identify defendant as the shooter, although several

others placed him at the scene or were less than positive he was the person who shot them.

According to the victims, defendant entered the club after a fight began inside, firing six to seven

rounds and hitting the various victims. Multiple .45-caliber shell casings were found at the scene,

all determined to have been fired from the same gun. When apprehended, defendant admitted

being present but denied the shooting. The victim who positively identified him eventually

became uncooperative and failed to appear. Defendant ultimately pleaded guilty to possession of

a weapon by a felon for 12 years in DOC.

¶ 13 Detective Appenzeller, the lead detective in this case, testified to the execution of

arrest and search warrants on defendant’s residence in October 2017, where officers found

defendant along with 10 individually packaged baggies of heroin, 5 separate packages of crack

cocaine, a bag containing 10 grams of cocaine, and a .45-caliber Colt revolver previously stolen

from the Mt. Vernon Police Department. Defendant acknowledged ownership of the drugs and

firearm.

¶ 14 The State also called Lieutenant Chris Thompson of the Macon County Sheriff’s

Office to testify about defendant’s behavior while incarcerated pretrial. Thompson described an

incident from February 2018 where defendant was found to have engaged in mutual combat with

another inmate. When advised of the consequences, Thompson said defendant indicated “he

-5- didn’t care about disciplinary segregation” and when threatened with “deadlock” defendant acted

“[a]s if he didn’t care.” After receiving 10 days disciplinary deadlock for this incident, in June

2018, defendant again was involved in a physical altercation with another inmate. The

surveillance footage revealed defendant approaching another inmate, grabbing him, and pushing

him against the wall. The inmate neither resisted nor fought back. Defendant then resisted the

responding correctional officers from the time they attempted to restrain him until being

uncuffed in the disciplinary unit. Defendant received six days’ disciplinary deadlock from this

incident.

¶ 15 Lieutenant Thompson then told about an incident approximately one week before

sentencing where defendant reported to a counselor that “he would be taken out ‘by suicide by

cop’ if he received more than the minimum sentence” in this case, telling the counselor “he

would not make it to prison.” As a result of this incident, prior to proceeding to sentencing in

September and pursuant to People v. Boose,

,

(1977) (codified in

Illinois Supreme Court Rule 430 (eff. July 1, 2010)), the trial court granted the State’s motion

seeking to have defendant shackled at the sentencing hearing.

¶ 16 Officer Malcolm Livingston of the Decatur Police Department, the State’s last

witness in aggravation, described an incident from April 2009 where defendant was found in a

residence after the landlord complained about a tenant being bullied by drug dealers who used a

residence to sell drugs. When officers arrived and knocked, defendant, whose name was not on

the lease, could be seen inside on a couch. He refused to come to the door and the officers

eventually gained access through the landlord. A search revealed a clear plastic bag containing

eight individually tied plastic bags found to contain crack cocaine, a gun, and a box of

ammunition on the couch officers observed defendant on when they first arrived.

-6- ¶ 17 Defendant presented no evidence in mitigation, and after being advised of his

right to allocution, defendant declined. The State recommended a life sentence, citing

defendant’s criminal history, including violence and gun possession. They noted defendant was

on parole for the weapons offense arising out of the nightclub shooting when he committed this

offense. They pointed out his behavior while incarcerated, as well as the circumstances of this

offense, concluding, “we are asking for a life sentence to protect this community and deter him

from further conduct and also to deter others.” Defendant’s counsel, maintaining this was a case

of mistaken identity, acknowledged defendant’s criminal history and argued a sentence “along

the lines of 35 years” was more appropriate.

¶ 18 The trial court began its comments with a recognition of the “statutory

aggravating and mitigating factors found in the Code of Corrections,” noting physical harm was

inherent in the offense and therefore not an aggravating factor. The court then listed each of the

statutory factors in mitigation which might have been relevant to the offense and found none

were applicable to the facts of this case. In aggravation, the court mentioned defendant’s history

of criminality, the need to deter others, and the victim being over 60 years of age. The court also

pointed out defendant’s “history of violence that’s, essentially, unprovoked” and noted defendant

was found in possession of a firearm within days of this offense. The trial court ultimately

sentenced defendant to 30 years’ imprisonment on the attempt (first degree murder) count with

35 years for the add-on for personally discharging the firearm, for a total of 65 years to be served

at 85% along with three years of mandatory supervised release. The court vacated the aggravated

battery with a firearm count since it was the same act as the one for which defendant was being

sentenced, and the State dismissed the severed count VI considering the sentence imposed in this

case. Defendant was advised of his appeal rights.

-7- ¶ 19 Within days of the sentencing hearing, defendant filed a motion seeking to

reconsider his sentence, arguing (1) the trial court abused its discretion in imposing an excessive

sentence and (2) the sentence was in violation of section 5-5-4 of the Unified Code of

Corrections (730 ILCS 5/5-5-4 (West 2016)) in that it constituted a resentencing of defendant

which was “more excessive than the original sentence.” Defendant’s second claim was based on

the fact the trial court initially sentenced defendant to 40 years’ incarceration for attempt (first

degree murder) with a 25-year add-on, realized its mistake, recalled the matter, and issued a

clarification, explaining later that it misspoke, sentencing defendant to 30 years’ incarceration

plus a 35-year add-on. The trial court denied defendant’s motion. Defendant raises no issue in

this regard on appeal.

¶ 20 II. ANALYSIS

¶ 21 Defendant asserts three claims of error: (1) the trial court failed to give proper

Rule 431(b) admonishments to prospective jurors (see Ill. S. Ct. R. 431(b) (eff. July 1, 2012));

(2) defendant was denied a fair trial when unduly prejudicial evidence of his parole status,

electronic monitoring, and missed appointments with his parole officer was admitted and the

prejudice outweighed any minimal probative value; and (3) defendant’s sentence is excessive

since the trial court failed to consider the circumstances of defendant’s childhood, mental health

condition, and potential for rehabilitation.

¶ 22 A. Sufficiency of Rule 431(b) Admonishments

¶ 23 Once again, we are asked to address the issue de jour, Rule 431(b)

admonishments raised for the first time on appeal. Despite our repeated affirmance (although

perhaps not encouragement) of the process engaged in here, this issue continues to arise, and like

the ancient Kraken, we could only hope “[i]n roaring he shall rise and on the surface die.”

-8- Alfred, Lord Tennyson, The Kraken (1830). Now that our supreme court has spoken in People v.

Birge,

, perhaps it will.

¶ 24 Defendant contends the trial court committed “clear and obvious” error when it

“failed to implement the precise question-and-response framework required by the Illinois

Supreme Court.” There are two things wrong with this statement: (1) we, and several other

districts, have found this not only is not “clear and obvious” error, but is no error at all and

(2) the Illinois Supreme Court has never “required” a precise question-and-response framework.

More importantly, Birge has now made it clear questioning as occurred here complies with Rule

431(b) and the previous holdings of the Illinois Supreme Court.

¶ 25 Defendant’s claim here, as in Birge, was that the trial court’s “collapsing” of the

four Zehr (People v. Zehr,

,

(1984)) principles into one statement

of the law violates the Illinois Supreme Court’s directives in People v. Thompson,

,

(2010).

¶ 26 Whether a trial court has violated Illinois Supreme Court Rule 431(b) (eff. July 1,

2012), and if so, the effect of noncompliance, is reviewed de novo. People v. Wilmington,

,

; see also People v. Wrencher,

,

. The rule is simple—the trial court is to ask each prospective juror 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[.]” Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

¶ 27 In this case, the trial court couched its questions to the first panel of 14

-9- prospective jurors as follows:

“This is a criminal trial. Because it is, there are certain rules that

apply. I’m going to ask each of the individual jurors if they

understand and accept these rules: The defendant, Mr. Fitzpatrick,

is presumed to be innocent of the charges against him. Before he

can be convicted, the State must prove his guilt beyond a

reasonable doubt. He is not required to offer any evidence on his

own behalf and if he makes a decision not to testify, that can’t be

held against him.”

¶ 28 What defendant fails to note in his brief is that the trial court then inquired

individually of each prospective juror, by name, “do you understand and accept those

principles?” One member of the first panel indicated he did not hear very well, and after

inquiring of the remainder, the trial court went back to the juror with the hearing problem,

repeated each of the four principles, almost verbatim, and then asked, “do you understand and

accept those principles?” All 14 prospective jurors answered affirmatively.

¶ 29 For the next panel of six prospective jurors, the trial court stated as follows:

“There are certain principles that apply to all criminal cases. I will

go over those with you and I’d ask each of you to tell me if you

understand and accept those principles: The defendant is presumed

to be innocent of the charge against him. Before he can be

convicted, the State must prove his guilt beyond a reasonable

doubt. He is not required—the defendant is not required to offer

any evidence on his own behalf and if the defendant makes a

- 10 - decision not to testify, it cannot be held against him.”

¶ 30 Again, each of the six was asked individually and by name whether they

understood and accepted those principles, and each answered affirmatively. This method is

almost verbatim the method recently given our supreme court’s imprimatur of compliance with

Rule 431(b). See Birge,

, ¶ 38

¶ 31 Although defendant asks us to consider the issue under the plain-error doctrine,

the first step in any such analysis is to determine whether there was error at all, and the burden of

persuasion rests with the defendant. People v. Kinnerson,

. Even

before, and including our order in Birge, we repeatedly approved the grouping of all four Zehr

principles into one recitation in Kinnerson, People v. Hartfield,

, ¶ 59,

People v. Willhite,

,

(2010), and People v.

Bowens,

,

(2011) (a brief delay between the

recitation of principles and asking jurors whether they understand and accept them was not

error). More recently, we approved the grouping of Zehr principles in a series of unpublished

Rule 23 cases (see Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021)): People v. Birge,

, People v. Mayen,

, People v. Fukama-

Kabika,

, People v. Burnett,

, and People v. Muraida,

. As a result, the absence of

error precludes further plain-error review. People v. Downs,

,

.

¶ 32 As the supreme court noted, neither the rule nor the supreme court require the trial

court to address each principle “separately.” Birge,

. We now have clear

direction from the Illinois Supreme Court sufficient, hopefully, to put this issue to rest.

- 11 - ¶ 33 B. Defendant’s Parole Status

¶ 34 Next, defendant contends he was denied a fair trial when the State was permitted

to present evidence defendant was on electronic monitoring and missed meetings with his parole

officer. Defendant contends the unfair prejudice created by this evidence outweighed any

probative value and its admission was an abuse of the trial court’s discretion.

¶ 35 The admissibility of evidence rests within the sound discretion of the trial court,

and its decision will not be disturbed absent an abuse of that discretion. People v. Chambers,

,

. “An abuse of discretion occurs only where the trial court’s

decision is ‘arbitrary, fanciful, or unreasonable to the degree that no reasonable person would

agree with it.’ ” People v. Lerma,

,

(quoting People v.

Rivera,

,

). Other crimes evidence is admissible if relevant

for any purpose other than to show a defendant’s propensity to commit crimes. People v. Pikes,

,

.

¶ 36 Here, the State sought the introduction of defendant’s electronic monitoring

records to show he was not at home on the date and time of the shooting. Although defendant

argues on appeal this was not contested at trial and therefore unnecessary, in reality, at trial it

was not acknowledged or stipulated by defendant. In fact, on the date of trial, defendant filed an

additional answer to discovery asserting an alibi defense, listing a witness in support of that

defense and an assertion the witness would testify defendant and he “were together at the time of

the offense and not at the location of the offense.” During a trial recess, the State mentioned its

intention to call a representative from the company charged with monitoring the electronic ankle

bracelet defendant wore while on parole to establish defendant was away from his home during

the time of the shooting. The representative and the relevant records had been disclosed in a

- 12 - supplemental answer to discovery filed by the State five days before trial. The State also

intended to call defendant’s parole officer to testify defendant called him on the day of the

shooting to obtain permission to be away from his home at a time which corresponded with the

time of the shooting. Contrary to defendant’s argument here, at trial there was no

acknowledgment defendant was present at the scene or was away from his home during the time

of the shooting. The most defense counsel was willing to say when arguing against admission of

this evidence was that “certainly if I try to elicit information from anyone that my client was at

his home, then it might become relevant—or would become relevant for impeachment

purposes.” (Emphasis added.) Identification was the issue throughout, and since defendant

elected not to testify, evidence tending to show defendant was not at home was relevant.

¶ 37 During the State’s case-in-chief, and sometime after the trial court ruled the ankle

monitor and defendant’s missed appointments were admissible for the limited purpose of

defendant’s location and later state of mind, the defense said they were withdrawing their alibi

defense and defendant did not intend to testify about his location at the time of the shooting. That

decision changed, however, once the court ruled his parole status was relevant and counsel

withdrew his waiver. Contrary to the record, defendant now claims he was no longer asserting an

alibi defense and therefore the prejudicial effect of the ankle monitor readings and missed

appointments outweighed any probative value.

¶ 38 Defendant’s argument ignores two important points. First, regardless of whether

defendant testified, to meet its burden, the State must still place him at or near the scene of the

shooting at the relevant time. If the State failed to do so, defendant remained free to argue the

absence of evidence indicated he was anywhere but home at the time of the shooting. Second,

defendant ignores how the relevance of the ankle monitor evidence changed during the trial.

- 13 - Initially, it was intended to show he was outside his home at the time of the shooting. Later, once

defendant indicated his intent to abandon the alibi defense, the State argued the monitor records

revealed defendant returned home very shortly after the shooting. This was corroborative of

telephone records putting him between 200 to 400 meters of the shooting when it occurred. The

trial court found this to be highly relevant, and we agree.

¶ 39 Any time identity is the issue in a case such as this, the ability to place the

defendant at the location in question is paramount. This is even more true once defendant elected

not to withdraw his alibi defense. Regardless, defendant did not have to maintain the defense to

be able to argue the State’s failure to place him at the scene, and in fact, he argued exactly that

during his closing argument:

“so you’ve got this evidence about the phone records. All right.

What does that show us. Does it show us he was at the shooting.

No. It shows that his phone was in the vicinity of the shooting. It is

reasonable to say that it’s probably him in that area. Okay. I’ll say

that’s a reasonable inference from circumstantial evidence. But

does that mean he was at the shooting. No. He is in his

neighborhood. That’s where he lives. Everybody said that’s where

he lives. He’s 780 meters away from this.”

¶ 40 Defendant’s counsel then argued it would have been reasonable for him to come

to the scene once he saw squad cars and lights and with the possibility of a police scanner or

scanner application on his phone. This is in direct contradiction of the evidence from the ankle

monitor indicating he returned to his home shortly after the shooting. Defendant’s location

before, during, and after the shooting were all questions of relevance for the trial court to weigh

- 14 - and were not undisputed facts as argued by defendant on appeal. The admission of times from

defendant’s ankle monitor were relevant to establish the key issue in the case, identity.

Furthermore, defendant’s failure to attend two meetings with his parole officer shortly after the

shooting was relevant to defendant’s state of mind after the shooting. The court agreed there was

no need to disclose the purpose of the meetings or the repercussions defendant could suffer for

failing to attend, but merely that defendant missed them.

¶ 41 “Other-crimes evidence is admissible to show modus operandi, intent, motive,

identity, or absence of mistake with respect to the crime with which the defendant is charged.”

Pikes,

, ¶ 11. The trial court was within its discretion in admitting the evidence,

and we will defer to the trial judge “who was better able to decide the effect of the evidence on

the jury.” People v. Illgen,

,

(1991). The trial court

made reasonable efforts to minimize the references to the circumstances for which defendant had

the monitor, and it gave the following agreed limiting instruction to the jury after the evidence

was presented:

“Evidence has been received that Mr. Fitzpatrick was on parole

October 16, 2017. This evidence has been received on the limited

issue of the defendant’s physical location and the state of mind of

the evening of October 16, 2017[,] and the morning of October 17,

2017[,] and may not be considered by you—be considered by you

only for those limited purposes, physical location and state of

mind.”

¶ 42 “ ‘A limiting instruction reduces any prejudice created by admitting other-crimes

evidence,’ ” and this was the instruction to which defendant agreed at trial. People v. Stevenson,

- 15 -

,

(quoting People v. Young,

,

(2008)).

¶ 43 From this record, we cannot find the trial court abused its discretion in allowing

otherwise relevant evidence to reach the jury on an issue as material as establishing the identity

of defendant as the person responsible for the shooting. It was corroborative of other admissible

evidence regarding defendant’s cell phone, showing him to be at or near the scene of the crime at

the time of the shooting. Any prejudice to defendant was outweighed by its probative value and

lessened by the court’s limiting instruction.

¶ 44 C. Defendant’s Sentence

¶ 45 Lastly, defendant argues his 65-year sentence was excessive and the trial court

failed to consider factors in mitigation.

¶ 46 “The sentence imposed by the trial court is entitled to great deference and will not

be reversed on appeal absent an abuse of discretion.” (Internal quotation marks omitted.) People

v. Wheeler,

,

. “A reviewing court must afford

great deference to the trial court’s judgment regarding sentencing because that court, having

observed the defendant and the proceedings, is in a far better position to consider such factors as

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

and habits than a reviewing court, which must rely on a ‘cold’ record.” (Internal quotation marks

omitted.) People v. Halerewicz,

,

. “When imposing

a sentence, the trial court must consider statutory factors in mitigation and aggravation, but the

court need not recite and assign a value to each factor it has considered.” People v. McGuire,

, ¶ 38,

. “The weight to be accorded each factor in

aggravation and mitigation in setting a sentence of imprisonment depends on the circumstances

- 16 - of each case.” People v. Hernandez,

,

(1990).

Citing Hernandez in People v. Crenshaw,

,

, this

court said, “[t]he balance to be struck amongst the aggravating and mitigating factors is a matter

of judicial discretion that should not be disturbed absent an abuse of discretion.” “In considering

the propriety of a sentence, the reviewing court must proceed with great caution and must not

substitute its judgment for that of the trial court merely because it would have weighed the

factors differently.” People v. Fern,

,

(1999). “A sentence

within statutory limits will not be deemed excessive and an abuse of the court’s discretion unless

it is ‘greatly at variance with the spirit and purpose of the law or manifestly disproportionate to

the nature of the offense.’ ” People v. Pina,

, ¶ 20,

(quoting Fern,

).

¶ 47 At sentencing, in addition to the evidence the trial court had already heard about

this shooting and the life-threatening injuries caused to the elderly victim, the trial court heard

testimony concerning several incidents of violence and serious criminal behavior in which

defendant had been engaged since 2009. These included:

(1) an incident in April 2009, where a landlord reported

complaints about non-tenant drug dealers forcing tenants to allow

them to use their apartments to sell drugs. Defendant, who was not

on the lease, was found in an apartment with a clear plastic bag

containing eight individually tied plastic bags found to contain

crack cocaine, a gun, and a box of ammunition, all in the couch

upon which defendant was seen before police entered.

(2) an incident in May 2009, where defendant admitted

- 17 - spraying a McDonald’s manager in the face with pepper spray

during an argument in the drive-thru, for which defendant received

a three-and-a-half-year DOC sentence for aggravated battery.

(3) the investigation of a shooting at a Decatur nightclub in

March 2012, where defendant was identified as the person who

shot five people with a .45-caliber handgun. According to

witnesses, defendant entered the club firing six to seven rounds

and hitting the various victims. Defendant admitted being present

but denied the shooting, and when the one victim who positively

identified him was threatened and eventually became

uncooperative, defendant pleaded to possession of a weapon by a

felon for 12 years in DOC.

(4) the execution of arrest and search warrants on

defendant’s residence in October 2017, where officers found

defendant, along with 10 individually packaged baggies of heroin,

5 separate packages of crack cocaine, a bag containing 10 grams of

cocaine and a .45-caliber Colt revolver previously stolen from the

Mt. Vernon Police Department. Defendant acknowledged

ownership of the drugs and firearm.

(5) two physical altercations while defendant was in

custody awaiting trial in this case and for which he was placed in

disciplinary segregation.

¶ 48 The court was also aware defendant was appearing for his sentencing in shackles

- 18 - as the result of an incident approximately one week before sentencing where defendant reported

to a counselor that “he would be taken out ‘by suicide by cop’ if he received more than the

minimum sentence” and telling the counselor “he would not make it to prison.”

¶ 49 Defendant’s presentence investigation report revealed, since 2009, six felony

convictions for violence, weapons, or drug-related offenses, resulting in at least three separate

penitentiary sentences. The report also showed defendant, while on felony probation, had

committed other felony offenses, and he was still on parole from a 12-year DOC sentence when

he committed the one before us. In addition, as a juvenile, in 2007 defendant was adjudicated a

delinquent for aggravated unlawful use of a weapon/vehicle.

¶ 50 The State also presented the victim, Mr. Graham, who read a lengthy

victim-impact statement outlining the near-death experience he suffered because of medical

complications from being shot three times. Defendant presented no evidence in mitigation, and

defendant declined to exercise his right to allocution. The State asked for a life sentence.

Defendant suggested a sentence of 35 years.

¶ 51 On appeal, defendant contends his 30-year sentence for attempt (first degree

murder) and 35-year sentence as the statutory add-on for personally discharging the firearm that

caused great bodily harm to victim did not give proper consideration to two nonstatutory factors

in mitigation or defendant’s rehabilitative potential. Where the defendant has presented evidence

in mitigation, there is a presumption that a sentencing court has considered it. Halerewicz,

. It is the defendant’s burden to show, by referencing explicit evidence

in the record, that the trial court failed to do so. Halerewicz,

. In

this case, other than what was contained in the presentence investigation report, defendant

presented no evidence in mitigation.

- 19 - ¶ 52 Defendant identifies no place in the record where the trial court explicitly rejected

any evidence contained in the presentence investigation report, relying instead upon blanket

assertions the court “did not take into account [defendant’s] difficult childhood,” “failed to

consider [defendant’s] mental health condition,” and “failed to consider and act on [defendant’s]

potential for rehabilitation.” Notably, these were not even highlighted by defense counsel at

sentencing. As we noted at the outset of this analysis, a sentencing court “is not obligated to

recite and assign value to each factor it relies upon, nor does it need to place greater weight on

defendant’s rehabilitative potential than on the seriousness of the offense or the need to protect

the public.” People v. Mayoral,

,

(1998). “The

seriousness of the offense is one of the most important factors for the court to consider.” People

v. Etherton,

, ¶ 28,

.

¶ 53 We do not find the sentencing court’s ruling was “arbitrary, fanciful,

unreasonable, or [one] where no reasonable person would take the view adopted by the trial

court.” People v. Hall,

,

(2000).

¶ 54 III. CONCLUSION

¶ 55 For all the reasons set forth above, we find the trial court’s Rule 431(b)

admonishments were appropriate and the trial court did not abuse its discretion either in the

admission of evidence or sentencing of defendant. The judgment and sentence of the trial court is

affirmed.

¶ 56 Affirmed.

- 20 -