Order filed: March 19, 2021

FIRST DISTRICT FIFTH DIVISION

No. 1-18-2371

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 17 CR 5533 ) KENNETH THOMPSON, ) Honorable ) Maura Slattery Boyle, Defendant-Appellant. ) Judge, presiding ______________________________________________________________________________

JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: We affirmed defendant’s conviction and sentence for aggravated battery causing great bodily harm, finding that the State proved him guilty beyond a reasonable doubt, that his counsel provided effective assistance, and that his nine-year sentence was not an abuse of discretion. We reduced his MSR term to one year.

¶2 Following a bench trial, the circuit court convicted defendant of aggravated battery causing

great bodily harm, aggravated battery causing permanent disfigurement, and aggravated battery

using a deadly weapon. The court sentenced defendant to nine years’ imprisonment and two years

of mandatory supervised release (MSR) for aggravated battery causing great bodily harm. The No. 1-18-2371

court merged the aggravated battery counts alleging permanent disfigurement and use of a deadly

weapon into the count alleging great bodily harm and as a result of the merger did not impose

sentences on those permanent disfigurement and deadly weapon counts. On appeal, defendant

contends that: (1) the State failed to prove him guilty beyond a reasonable doubt of aggravated

battery causing great bodily harm; (2) his trial counsel provided ineffective assistance; (3) his nine-

year sentence constituted an abuse of discretion; and (4) his MSR term should be reduced to one

year. We affirm defendant’s conviction and nine-year sentence and reduce his MSR term.

¶3 At trial, Delisa Cousins testified that on March 14, 2017, she and the victim, Ammar

Mohsen, were working in a convenience store connected to a gas station at 300 West Garfield

Boulevard. At about 6 a.m., defendant walked in and “stole” some candy from the front of the

counter. The victim “said a few words” to defendant, who then left. Defendant returned at about

7:30 a.m. The victim came around from behind the counter and told defendant to leave because he

had stolen the candy. They began arguing and then defendant struck the victim and pushed him

out the door and they started wrestling and “tussling.” Cousins stood at the door, told the victim to

let defendant go, and then returned inside. As Cousins went toward the counter, another customer

inside the store exclaimed that defendant had just stabbed the victim. Cousins called 911 and went

to the door, where she saw that the victim had been stabbed on the left side of his neck. Defendant

left.

¶4 The victim walked inside the store. He was “upset,” and he tried cleaning the wound.

Cousins saw some blood, although she agreed on cross-examination that “it wasn’t dripping all

over the place.” Cousins told him he needed a paramedic after seeing the wound and she made

another 911 call. The paramedics arrived and the victim left with them to go to the hospital. On

March 20, 2017, detectives showed Cousins a photo array and she identified defendant. -2- No. 1-18-2371

¶5 The State showed Cousins People’s Exhibit No. 2, which she identified as a photograph of

the victim with the injury to his neck that resulted from the stabbing. People’s Exhibit No. 2 is

contained in the record on appeal and it shows a laceration or tear in the skin about two inches in

length. There was no medical testimony at trial describing the depth of the wound. From People’s

Exhibit No. 2, though, one can see that the wound extends below the skin. The middle of the wound

is bloody and red; the edges of the wound show dried blood.

¶6 Detective Schmitt testified that he arrived at the gas station following the stabbing and

recovered video footage that recorded the incident. He captured a screen shot of defendant’s face

and ultimately compiled a photo line-up which included a photograph of defendant. The photo

line-ups were shown to Cousins and to the victim, after which Detective Schmitt submitted an

investigative alert to have defendant arrested.

¶7 Defendant was arrested on March 30, 2017 and brought to the police station. Detective

Schmitt and his partner spoke with defendant at about 5 p.m. After being given his Miranda

warnings, defendant initially stated that he had gotten into a fight with the victim at the gas station

and struck and bit him, but he denied using a weapon against the victim. Officer Schmitt then

showed defendant the photograph of the victim’s injured neck, and defendant responded that “he

had a house key that must have caused the cut on the neck.” Detective Schmitt showed defendant

a screen shot from one of the video clips showing him “holding an object in his hand that was

considerably larger than a key or set of keys.” 1 Defendant subsequently admitted to stabbing the

1 People’s Exhibit No. 8, the screen shot that Detective Schmitt showed defendant, was admitted into evidence and is contained in the record on appeal. People’s Exhibit No. 8 shows a dark, side-view of defendant holding an object of some sort outside the convenience store, but it is difficult to determine from the screen shot the actual size or the identity of the object. -3- No. 1-18-2371

victim with a small pocketknife approximately three inches in length. Defendant no longer had the

pocketknife because it was stolen from his house.

¶8 Detective Schmitt also met with the victim at the police station a “couple days” after the

stabbing. The victim removed a bandage from his neck and showed him the stab wound. The

victim also showed the detective a bite mark on his chest which he sustained in his fight with

defendant. Detective Schmitt took a photograph of the bite mark. The State showed Detective

Schmitt People’s Exhibit Nos. 6 and 7, which he identified as photographs of the bruise caused by

defendant’s bite and are contained in the record on appeal. It is difficult to make out any bruising

in People’s Exhibit No. 6. People’s Exhibit No. 7 more clearly shows a purple bruise below the

victim’s right nipple.

¶9 The State showed Detective Schmitt People’s Exhibit No. 2, the photograph of the injury

to the victim’s neck. The photograph of the injury was “a little more fresh than at the point [he]

saw it,” but it accurately depicted the injury.

¶ 10 The parties stipulated that if called to testify, Marisoll Sindellar would state that she works

for the Chicago Fire Department and that she arrived at the gas station at 300 West Garfield

Boulevard at approximately 8:10 a.m., saw the victim at 8:11, departed the scene with the victim

at 8:15 and arrived at the hospital at 8:20. Sindellar would testify that the victim had been stabbed

on the left side of his throat, that he had “approximately a two-inch laceration and he was treated

by the ambulance.” There was no stipulation or other evidence as to the type of treatment provided.

¶ 11 The court viewed video clips of the confrontation between defendant and the victim after

admitting them into evidence. The video clips are contained in the record on appeal. One of the

clips shows defendant and the victim arguing inside the gas station. Other customers are inside.

Defendant grabs the victim by the neck and pushes him. They continue to argue, and then -4- No. 1-18-2371

defendant pushes the victim outside the front door and wrestles him forcefully to the ground. They

get back to their feet and wrestle with each other. Cousins comes to the door, opens it, and says

something to them. Then she closes the door and moves back toward the counter. Defendant lunges

toward the victim, who suddenly grabs his throat and runs from defendant. Defendant follows the

victim but then walks away. As defendant’s back is to the camera during much of the fight, the

video does not clearly show the pocketknife in his hand at the time he injured the victim’s throat.

¶ 12 Other clips show the victim inside the store after the fight, continually holding a covering

(a towel or cloth) at his neck and speaking with members of the Chicago Fire Department, who

subsequently give him a different, smaller covering to place on his neck. The injury to the neck

cannot be clearly seen on the video. The victim also speaks with a police officer, walks around the

store, and looks at his cell phone.

¶ 13 The video clips were admitted without any commentary or explanation of the depicted

events by any witness.

¶ 14 The victim did not testify at trial.

¶ 15 The court convicted defendant of aggravated battery causing great bodily harm, aggravated

battery using a deadly weapon, and aggravated battery causing permanent disfigurement. The court

sentenced defendant to nine years’ imprisonment and two years of MSR for the conviction of

aggravated battery causing great bodily harm and merged the remaining two aggravated battery

convictions without imposing a sentence thereon. Defendant appeals.

¶ 16 Defendant contends that the State failed to prove him guilty of aggravated battery causing

great bodily harm. When considering a challenge to a criminal conviction based on the sufficiency

of the evidence, our inquiry is limited to whether, after viewing all the evidence in the light most

favorable to the State, any rational trier of fact could have found the essential elements of the -5- No. 1-18-2371

offense beyond a reasonable doubt. Jackson v. Virginia,

(1979). It is the function

of the trier of fact to assess witness credibility, weigh and resolve conflicts in the evidence, and

draw reasonable inferences from the evidence. People v. Jamison,

, ¶ 31.

We will not overturn a conviction based on insufficient evidence unless the proof is so improbable

or unsatisfactory that a reasonable doubt exists as to defendant’s guilt. People v. Williams,

(2000).

¶ 17 In rendering its verdict here, the court considered witness testimony as well as video clips

of the altercation and its aftermath and photographs of the injury admitted as substantive evidence.

Defendant does not argue that the video clips and photographic evidence were inadmissible to

depict the altercation and the victim’s resulting injury or that the court could not draw all

reasonable inferences from such evidence. See People v. Smith,

(1992) (discussing

the admissibility of photographic evidence); People v. Taylor,

(discussing the

admissibility of surveillance video). Defendant’s argument, rather, is that the properly admitted

evidence, testimonial as well as photographic and video, was insufficient to convict him of

aggravated battery causing great bodily harm. When considering a verdict premised on testimonial,

as well as on photographic and video evidence, our standard of review remains the traditional one

employed in Jackson; we view the video clips and photographs admitted as substantive evidence,

examine all the testimony, and then consider all the testimonial, photographic, and video evidence

in the light most favorable to the prosecution to determine whether any rational trier of fact could

have found the essential elements of aggravated battery causing great bodily harm beyond a

reasonable doubt. People v. Span,

, ¶¶ 26-28.

¶ 18 A person commits battery if he knowingly without legal justification by any means causes

bodily harm to an individual. 720 ILCS 5/12-3(a) (West 2016). A person commits aggravated -6- No. 1-18-2371

battery when, in committing a battery, he knowingly causes great bodily harm or permanent

disability or disfigurement or uses a deadly weapon. 720 ILCS 5/12-3.05(a)(1), (f)(1) (West 2016).

Defendant argues that we should vacate his conviction for aggravated battery causing great bodily

harm, and reduce the conviction to simple battery, because the State only proved that he inflicted

bodily harm on the victim, not great bodily harm.

¶ 19 In addressing defendant’s argument, we must determine the meaning of “bodily harm” as

required to sustain a simple battery conviction, and “great bodily harm” as required to sustain an

aggravated battery conviction. Several cases are informative.

¶ 20 In People v. Mays,

(1982), our supreme court was considering defendant’s

rape conviction. The issue on appeal was whether the trial court erred by refusing to give an

instruction for battery as a lesser included offense of rape.

. The supreme court noted

that there were two types of battery, battery causing bodily harm and battery by insulting or

provoking conduct.

. In differentiating the two types of batteries, the supreme court

stated:

“Although it may be difficult to pinpoint exactly what constitutes bodily harm for the

purposes of the statute, some sort of physical pain or damage to the body, like lacerations,

bruises or abrasions, whether temporary or permanent, is required. Otherwise there would

be no need for the other type of battery, contact of an insulting or provoking nature.”

¶ 21 In People v. Figures,

(1991), defendant was convicted of armed

violence predicated on aggravated battery causing great bodily harm.

. The evidence

established that the victim was shot at by defendant. The shot pierced his shoe but did not penetrate

his skin.

. A witness saw the victim limping after the shot, but no one saw any blood on

-7- No. 1-18-2371

his shoe.

Although the victim was treated at a hospital, his injury only required “very little

attention”:

“[t]hey put a little iodine on my foot. At first they cut the little blood clot open, and then

they put iodine on there and patched it up.”

¶ 22 We held that the injury clearly rose to the level of bodily harm as defined in Mays for

purposes of a simple battery, but that it did not rise to the level of great bodily harm for purposes

of aggravated battery.

We noted:

“Because great bodily harm requires an injury of a graver and more serious character than

an ordinary battery, simple logic dictates that the injury must be more severe than that set

out in the Mays definition. The word ‘great’ must be given effect in construing the

aggravated battery statute; statutes should be interpreted so that no word or phrase is

rendered superfluous or meaningless.”

.

¶ 23 We vacated defendant’s armed violence conviction because the State had failed to prove

the predicate felony of aggravated battery.

.

¶ 24 In In re J.A.,

(2003), defendant was adjudicated delinquent of

aggravated battery causing great bodily harm.

. The evidence at trial showed that

defendant stabbed the victim with an unidentified sharp object four to five inches in length in the

back left shoulder, which the victim described as feeling like a pinch.

. He was

advised to get stitches, but there was no evidence as to the number of stitches recommended or the

nature and extent or size or depth of the wound and the trier of fact was not given the opportunity

to view the wound photographically or in open court.

. On appeal, defendant contended

that the State failed to prove the element of great bodily harm beyond a reasonable doubt.

. In analyzing defendant’s argument, we cited Figures and held that “ ‘great bodily harm’ is -8- No. 1-18-2371

more serious or grave than lacerations, bruises, or abrasions that characterize ‘bodily harm.’ ”

. We noted that in determining whether the State proved great bodily harm beyond a

reasonable doubt, consideration must be given to the “evidence of what injury the victim actually

received, the evidence of the nature and extent of the victim’s injury, and evidence of the treatment

required.”

. Reviewing all the evidence in the light most favorable to the prosecution, we

concluded there was insufficient evidence that the victim suffered great bodily harm as required

by the aggravated battery statute given the lack of any testimony or photographs or in-court

demonstration of the size, depth, length, or extent of the injury.

We held that the State was

required to show more than evidence of a single stab wound of indeterminate size, which felt like

a pinch and for which an indeterminate number of stitches were advised by someone unnamed.

. We modified the adjudication of delinquency from aggravated battery to battery.

.

¶ 25 In a concurring opinion, Justice Gallagher stated that the injury did not rise to great bodily

harm because “[b]efore one can truly call bodily harm ‘great,’ it should be more severe than what

one might do to a finger with a kitchen knife while cutting vegetables.”

(Gallagher, J.,

concurring).2

¶ 26 In People v. Cisneros,

, the evidence at trial showed that

defendant stabbed the victim with a knife, causing lacerations to his hand, neck, shoulder, back,

and forearm. Photographs revealed “a deep gash to his hand, a long laceration to his shoulder, a

neck wound with a portion of the flesh loose from the underlying tissue, and a shallow laceration

2 Justice O’Brien issued a dissenting opinion in J.A., stating that a stab wound requiring stitches and inflicted by a sharp weapon is great bodily harm and that she would affirm defendant’s conviction for aggravated battery.

(O’Brien, J., dissenting). -9- No. 1-18-2371

to his forearm.” Id. ¶ 13. The victim received medical treatment, including stitches to some of the

wounds. Id. The jury viewed the victim’s scars from each of the five lacerations. Id.

¶ 27 On appeal from his conviction of aggravated battery causing great bodily harm, defendant

argued that the victim’s injuries did not qualify as great bodily harm because they were nothing

more than “superficial” lacerations. Id. ¶ 14. Defendant cited Figures and J.A., which held that

great bodily harm sufficient for aggravated battery must be something more than the injuries

defined as mere bodily harm by our supreme court in Mays for purposes of simple battery, i.e.,

they must be more than “lacerations, bruises or abrasions, whether temporary or permanent.” Id.

¶ 28 The Cisneros court found that Figures’s and J.A.’s analysis of Mays was faulty, stating:

“We reject the notion that the supreme court’s discussion in Mays is somehow

useful in distinguishing battery from aggravated battery. Clearly, the supreme court was

differentiating battery by bodily harm from battery by insulting or provoking contact.

Additionally, can any reasonable person accept the notion that the supreme court meant to

say that a victim left with ‘permanent’ ‘physical pain or damage to the body’ has not

suffered great bodily harm, but only bodily harm? Because if, as Figures posits, the Mays

court was defining simple battery, then that is what we are left with. To the contrary, the

court’s language makes it clear that it was describing all varieties of bodily harm: minor,

great and in-between. However, it did so in the context in which it found itself: discussing

whether battery is a lesser-included offense of rape. The Mays court had no reason to

discuss aggravated battery.” Id. ¶ 18.

¶ 29 Cisneros held that in the case before it, the extensive evidence of the seriousness of the

victim’s lacerations, including photographic evidence and a visual display of his numerous scars,

was sufficient to establish the great bodily harm necessary to sustain the aggravated battery -10- No. 1-18-2371

conviction even in the absence of medical testimony regarding the severity and permanency of the

lacerations. Id. ¶¶ 20-21.

¶ 30 We agree with Cisneros (and with Justice Gallagher’s concurring opinion in J.A.) that

while minor lacerations such as a small cut to a finger caused by a kitchen knife do not rise to the

level of great bodily harm, other lacerations may rise to such a level if sufficient evidence is

presented as to their severity. The present case is more similar to Cisneros than to J.A., as there

was ample evidence presented to the trier of fact regarding the size, depth, length, and extent of

the victim’s laceration showing its severity. Cousins testified that after the victim returned to the

store following the altercation with defendant, he had a “gash” on the left side of his neck “near

his veins” which was bleeding. The victim was “upset” and attempted to clean the wound himself.

After viewing the wound, Cousins determined that he needed a paramedic, so she called 911. The

parties stipulated to Sindellar’s testimony that the victim had a two-inch laceration on his neck and

was “treated by the ambulance” and taken to the hospital. The court was presented with People’s

Exhibit No. 2, a photograph of the victim’s injury, which corroborates Sindellar’s stipulated

testimony that the laceration to the victim’s neck was two inches in length, and also shows that the

wound ran below the skin and was red and bloody in the middle. Detective Schmitt testified that a

couple of days after the incident, the victim was still wearing a bandage on his neck. When the

victim took the bandage off, the stab wound was still visible.

¶ 31 The court was also presented with video of the incident, which showed that defendant

grabbed the victim’s neck while inside the store and pushed him, then shoved the victim out the

door and violently wrestled him to the ground, before lunging at his neck. Defendant admitted to

Detective Schmitt that he bit the victim and People’s Exhibit No. 7 depicts the resulting bruise on

the victim’s chest resulting from the bite. Defendant also admitted to using a three-inch -11- No. 1-18-2371

pocketknife to stab the victim in the neck. The violent nature of the action taken by defendant

against the victim is a relevant consideration when determining whether great bodily harm has

been proved. See People v. Matthews,

(1984) (victim suffered great bodily

harm when she was hit on the head and arms with three “full force blows” from a baseball bat);

People v. Lopez-Bonilla,

(victim suffered great bodily harm when he

was hit in the head with a gun and his head was repeatedly slammed into a desk drawer). In addition

to showing how defendant violently attacked the victim, the video clips also show the victim in

the store after the attack, continually holding a covering to his neck, and later being given a

different covering by emergency personnel.

¶ 32 Viewing all the testimony, photographs, and video clips in the light most favorable to the

prosecution, any rational trier of fact could have found that defendant committed a forceful and

violent attack against the victim in which he pushed, wrestled, and bit the victim in the chest and

then stabbed him in the neck with a three-inch pocketknife. The stab wound just missed the

victim’s veins but left a two-inch long, bloody “gash,” or laceration, extending below the skin,

which required treatment from paramedics and a trip to the hospital and was still evident days

later. Any rational trier of fact could have found from all this evidence that the forceful attack,

culminating in the stab wound to the neck 3, caused great bodily harm sufficient to sustain

defendant’s conviction of aggravated battery.

3 The State also argues on appeal that the bruise to the chest from the bite is evidence of great bodily harm, but we note that in the charging document, the only evidence of great bodily harm described therein was the stab to the neck; defendant was not charged with aggravated battery based on the bruise. Thus, while the bite and resulting bruise is relevant to the general forcefulness of the attack, we focus on the stab wound to the neck in determining whether the victim suffered great bodily harm. -12- No. 1-18-2371

¶ 33 Next, defendant argues that his trial counsel committed ineffective assistance by failing to

move to suppress his statements because he was arrested based only on an investigative alert. A

criminal defendant has the right to effective assistance of counsel. Strickland v. Washington,

(1984). Under Strickland, a defendant claiming ineffective assistance must show that

counsel’s conduct “fell below an objective standard of reasonableness,” and the conduct prejudiced

defendant. Strickland,

. To establish the prejudice prong, defendant must

show that there is a reasonable probability that the motion to suppress would have been granted

and that the outcome of the trial would have been different had the evidence been suppressed.

People v. Bew,

(2008). We review ineffective assistance of counsel claims

de novo. People v. Ross,

.

¶ 34 Defendant’s ineffective assistance claim raises the question whether an investigative alert

that is supported by probable cause may serve as the basis of an arrest, if the police do not obtain

a warrant issued pursuant to an affidavit. Defendant does not argue that the officers lacked probable

cause to arrest him. Defendant argues that the officers’ authority to arrest him derived entirely

from the investigative alert, that the alert was insufficient under Article I, section 6 of the Illinois

Constitution, and therefore that his counsel was ineffective for failing to file a motion to suppress.

Article I, section 6 provides:

“The people shall have the right to be secure in their persons, houses, papers and other

possessions against unreasonable searches [and] seizures ***. No warrant shall issue

without probable cause, supported by affidavit particularly describing the place to be

searched and the persons or things to be seized.” Ill. Const. 1970, art. I, § 6.

¶ 35 Defendant cites in support People v. Bass,

, in which a divided

panel of this court ruled that the defendant’s warrantless arrest, premised on probable cause, did -13- No. 1-18-2371

not violate the fourth amendment but did violate the Illinois Constitution. Finding that the Illinois

Constitution’s search and seizure protections were not in strict lockstep with the fourth amendment

of the United States Constitution, the Bass court ruled:

“we find, with regard to the necessity of a warrant issued by a neutral magistrate, historical

precedent concludes that article I, section 6, provides greater protections than the fourth

amendment. Indeed, arrests based solely on investigative alerts, even those supported by

probable cause, are unconstitutional under the Illinois Constitution.” Id. ¶ 43.

¶ 36 Bass was decided after defendant’s trial, and therefore his counsel was not ineffective for

failing to file a motion to suppress based on a decision that had not yet been published. Even if

Bass had been published prior to defendant’s trial and counsel had filed a motion to suppress

pursuant thereto, no reasonable probability exists that the motion would have been granted, as Bass

has been explicitly rejected by a number of decisions. For example, in People v. Braswell,

, we noted that the flaw in Bass’s reasoning is that arrests must be based on

probable cause, not warrants as the majority in Bass suggests. Id. ¶ 39. Bass’s flawed reasoning

“creates the somewhat paradoxical situation where police may arrest an individual without a

warrant and without an investigative alert if they have probable cause to do so, but that same arrest

becomes unconstitutional if police issue an investigative alert based on the same facts that gave

rise to the probable cause.” Id. This inconsistency was identified by Justice Mason in her dissent

in Bass, 2019 IL App (1st) ¶ 120 (Mason, J., concurring in part and dissenting in part) (“And I can

conceive no principled basis on which to hold that the police may arrest an individual without a

warrant and without an investigative alert as long as they have probable cause, but if they issue an

investigative alert based on the same facts giving rise to probable cause, they have run afoul of the

Illinois Constitution.”). The Braswell court adopted the view outlined by Justice Mason in her -14- No. 1-18-2371

dissent in Bass and held that where an investigative alert has a proper basis to show probable cause,

an arrest pursuant thereto does not run afoul of the Illinois Constitution. Braswell,

. See also People v. Thornton,

, People v. Bahena,

and People v. Simmons,

agreeing with

Braswell (and with Justice Mason’s dissent in Bass) and rejecting the majority opinion in Bass.

Given Braswell’s, Thornton’s, Bahena’s, and Simmons’s rejection of Bass, there is no reasonable

probability that a suppression motion premised on Bass would have been successful. Accordingly,

defendant’s claim of ineffective assistance fails.

¶ 37 Next, defendant contends that his sentence of nine years’ imprisonment constituted an

abuse of discretion. Under the Illinois Constitution, the trial court must impose a sentence

balancing the seriousness of the offense and defendant’s rehabilitative potential. People v. Knox,

. In doing so, the court must consider aggravating and mitigating

factors including “ ‘the nature and circumstances of the crime, the defendant’s conduct in the

commission of the crime, and the defendant’s personal history, including his age, demeanor,

habits, mentality, credibility, criminal history, general moral character, social environment, and

education .’ ”

(quoting People v. Maldonado,

(1992)). Because

the trial court is in the best position to weigh those factors, the sentence imposed will not be

reversed absent an abuse of discretion. Knox,

, ¶ 46. The reviewing court

“must not substitute its judgment for that of the trial court merely because it would have weighed

these factors differently.” People v. Stacey,

(2000). A sentence within statutory

limits will not be deemed excessive unless it is greatly at variance with the spirit and the purpose

of the law or manifestly disproportionate to the nature of the offense. People v. Busse,

, ¶ 20. -15- No. 1-18-2371

¶ 38 Defendant here was convicted of aggravated battery, a Class 3 felony for which the normal

sentencing range is 2 to 5 years. 720 ILCS 5/12-3.05(h) (West 2016); 730 ILCS 5/5-4.5-40 (West

2016). However, due to defendant’s previous conviction in the last 10 years for an offense of the

same class or greater (a Class 2 conviction for possession of a stolen motor vehicle in 2009), he

faced an extended sentencing range of 5 to 10 years. 730 ILCS 5/5-5-3.2(b)(1) (West 2016); 730

ILCS 5/5-4.5-40(a) (West 2016).

¶ 39 At the sentencing hearing, the court read the presentencing investigative report and heard

the evidence in aggravation and mitigation. In aggravation, the State argued that defendant has an

extensive criminal background including convictions for aggravated criminal sexual assault, home

invasion, armed robbery, robbery, and possession of a stolen motor vehicle. The State also noted

the violent nature of the knife attack against the victim here.

¶ 40 In mitigation, defendant argued that he has a history of depression and substance abuse,

served in the United States armed forces, volunteers at his church’s food bank, and is a caretaker

for his mother, who has cancer. In allocution, defendant apologized for his “actions” and reiterated

that his mother has cancer and that he is her only caretaker.

¶ 41 The court noted that defendant had spent “the better half” of the last 30 years in prison, so

for him to be his mother’s primary caretaker “seems a little bit impossible.” The court stated that

it had viewed the video clips of the incident and saw the “violent nature” in which defendant had

attacked the victim. The court noted defendant’s long criminal history and then stated:

“I don’t see any learning pattern here, Mr. Thompson. And what concerns me greatly is the

violent nature in which you attacked [the victim] and I do not think that five or six is

warranted. I do not think that 10 is warranted, State, as you’re asking for the maximum. I

-16- No. 1-18-2371

will sentence him to nine years Illinois Department of Corrections followed by two years

mandatory supervised release.”

¶ 42 Defendant’s nine-year sentence was within the applicable sentencing range and did not

constitute an abuse of discretion.

¶ 43 Next, defendant contends that his two-year MSR term was not authorized by statute, and

that the correct term was one year. See 730 ILCS 5/5-4.5-40(l) (West 2016) (providing for a one-

year MSR term for Class 3 felonies). The State agrees. Accordingly, pursuant to our authority

under Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967), we reduce defendant’s MSR term

to one year.

¶ 44 For all the foregoing reasons, we affirm defendant’s conviction and nine-year sentence and

reduce his MSR term to one year.

¶ 45 Affirmed as modified.

-17-