No. 1-18-2399 Order filed April 9, 2021 Fifth Division

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 DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 2675 ) TORIANO COLLINS, ) Honorable ) James Michael Obbish, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Cunningham and Rochford concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s sentence over his contention that the trial court improperly relied on evidence not presented at trial in aggravation in imposing sentence.

¶2 Following a bench trial, defendant Toriano Collins was convicted of being an armed

habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2016)) and sentenced to 10 years’

imprisonment. On appeal, he contends he is entitled to a new sentencing hearing because the

circuit court improperly relied on evidence not presented at trial. We affirm. No. 1-18-2399

¶3 Defendant was charged with one count of AHC and six counts of unlawful possession of

a weapon by a felon (UUWF), premised on his possession of three firearms and corresponding

ammunition, after having been previously convicted of two felonies. Because defendant does not

challenge the sufficiency of the evidence, we recite only those facts necessary to our disposition.

¶4 The evidence at trial established that, on January 13, 2017, Chicago police officer

Sebastian Magiera was undercover, conducting surveillance near the 4800 block of West Monroe

Street due to “numerous complaints of drug sales in the area.” Magiera observed defendant with

two other people standing on some stairs at a nearby apartment building. Defendant was “[a]t

times tak[ing] his forefinger and thumb, placing it up to his mouth, assuming in a smoking

gesture to pedestrians and vehicular traffic.” Defendant also approached several vehicles and

exchanged unknown items from his black coat pocket for money.

¶5 At some point, defendant’s group and another group out of Magiera’s sight got into a

verbal altercation. One of the men from defendant’s group pulled out a gun from his waistband

and fired one shot in the direction of the other group. Magiera got on his radio and sent a flash

message to other officers in the area. Following the shot, defendant and the others in his group

ran inside the apartment building. Through a window, Magiera could see that they ran to the

second floor of the building.

¶6 Magiera entered the building and could hear a woman saying “open the door.” On his

way upstairs to the second floor apartment, Magiera saw the two men who had run into the

building with defendant. After speaking with the resident of the second floor apartment, Magiera

went inside the apartment and observed defendant exiting a bedroom. Defendant’s black coat

was on the bed in the bedroom. There was also a safe, which contained three loaded

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semiautomatic handguns, money, and various documents belonging to defendant, including his

birth certificate and social security card.

¶7 Sergeant Lazara Altamirano corroborated Magiera’s version of events inside the

apartment building but added that cannabis had also been recovered from the bedroom.

Altamirano responded to a call at the apartment, which stated that officers observed individuals

that they believed to be armed running inside a residence. Altamirano testified that one of the

firearms appeared to have a “50-round drum magazine.” He inventoried the contents of the safe.

¶8 Forensic testing on the firearms showed DNA suitable for comparison was found on two

of the three firearms, and defendant’s DNA could not be excluded. The State introduced two

certified prior convictions for defendant: a 2013 conviction for delivery of a controlled substance

in case number 13 CR 12839 and a 2015 conviction for unlawful use of a weapon by a felon

(UUWF) in case number 15 CR 00095. The court also admitted photographs of the recovered

firearms.

¶9 The circuit court found defendant guilty on all counts and merged the UUWF counts into

the AHC count. It subsequently denied defendant’s motion for a new trial.

¶ 10 At defendant’s sentencing hearing, the court noted it had read and “highlight[ed]”

defendant’s presentence investigation report (PSI). Defendant’s PSI revealed he had three

juvenile adjudications: two 2010 adjudications for possession of a controlled substance and a

2012 adjudication for possession of cannabis. He had three prior convictions, including the

convictions used at trial: a 2013 delivery of a controlled substance conviction and a 2015 UUWF

conviction, for each of which he received a three-year sentence. The third conviction was a 2014

conviction for possession of a controlled substance for which he received a one-year sentence.

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The PSI showed defendant’s highest level of education was 10th grade, he had a child who

resided with the mother, and he denied gang involvement but CPD’s “CLEAR” system showed

he was affiliated with the Mafia Insane Vice Lords gang. Defendant was expelled during his

junior year of high school after he was arrested and incarcerated. He then attended an alternative

school for a year before he quit.

¶ 11 Defendant had an older sister and two younger half-siblings. One of his younger siblings

shot and killed himself in November 2014. Defendant had a close relationship with his other

siblings. His father was not active in his life. Defendant’s mother raised him, and he had a

“normal and respectful relationship with her.” Defendant reported he had a normal childhood,

free of abuse and neglect, and he did not use drugs or alcohol.

¶ 12 In aggravation, the State noted defendant’s prior criminal history and argued the

seriousness of the offense.

¶ 13 In mitigation, defense counsel argued defendant was only 22 years old and had great

rehabilitative potential. Counsel argued it was “entirely plausible” that defendant had only

touched the guns to put them in the safe. Further, defendant had been respectful and spent time in

the jail library researching his case. Moreover, counsel emphasized defendant grew up without

his father consistently in his life and suffered trauma, including being raised by a single mother

in a difficult neighborhood and the 2014 death of his brother. Counsel requested the minimum

sentence, so that defendant could leave prison while still a young man and able to change the

direction of his life.

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¶ 14 In allocution, defendant stated he had been going to school while in jail and was awarded

second place in a chess tournament. He asked the court for mercy so he could have a “second

chance.”

¶ 15 The court imposed a 10-year sentence. In imposing sentence, the court referenced

defendant’s criminal history, noting his juvenile adjudications were not necessarily aggravating,

but demonstrated defendant had “an antisocial-type personality.” It stated probation officers

often work with juvenile offenders to try to curb their criminal behavior, but it “obviously” did

not work with defendant. To the contrary, the court noted defendant’s criminal behavior was not

“slowing down” but rather going in the “wrong direction” as he continued to be “involved in

narcotics and apparently a delivery,” pointing out defendant’s several adult prison sentences for

drug-related offenses. The court also pointed out that, in 2015, defendant was convicted of a

firearm offense while out on bond for a drug possession case. It told him the drugs were leading

him to weapons, that he would not need firearms to protect himself from the people who prey on

drug dealers if he “didn’t engage in the criminal drug-related behavior.”

¶ 16 The court also referenced the PSI and noted defendant’s family history, the lack of abuse

in his childhood, his child, and that he had been “thrown” out of school after being arrested.

Although the court stated it would not hold against defendant what the PSI stated regarding his

gang affiliation, it noted his behavior and possession of weapons was a “strong indicator” that he

was “probably” a “member of some kind of gang.” It stated defendant reported he did not use

drugs yet he was convicted “over and over for drugs,” which told the court defendant was a drug

dealer rather than a drug user.

¶ 17 In reference to the instant offense, the court stated:

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“The day in question, you know, whatever you’re doing out there, the police are

observing suspect activity, might be narcotics related and all the sudden one of your guys,

you know, decides to fire off a round at another individual, broad daylight out on the

street. ***

In any event, so then when you and your fellows see the police are there, you flee,

you run away. And had you not run, had you just stayed there, had you not done

anything, that would have been the end of it. The police wouldn’t have -- you know, they

might have placed you under arrest. Eventually though, there wouldn’t have been any

charges against you. But your interest in defeating law enforcement and protecting your

drug trade operation probably and helping out your cohort with a gun caused you to flee

some place and it’s a reasonable inference to help try to dispose of or hide the gun so that

the police couldn’t recover it. And you put it in the worst place you could have because

you put it where it tied you to the crime of what was in that safe. And that was three

guns.”

¶ 18 The court additionally noted the seriousness of the offense, specifically referencing a

photograph of one of the guns, which could shoot 50 rounds. The court stated,

“[I]t’s like a comic book thing. It’s a pistol that looks like it should be attached to

an Uzi or some kind of World War 2 weapon. What are you doing to do with that kind of

gun? Who deals with this kind of gun? There’s no legitimate purpose in the world to

possess a gun like that. Absolutely none. It’s impractical for anything but shooting up

whole neighborhoods, shooting up a series of other individuals that you’re at war with or

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that you’re in conflict with. And you can just shoot and shoot and shoot until 50 rounds

go off. I mean, that’s just an amazing photograph. That’s one of the guns in the safe.”

The court did not think defendant had “any realization of what [his] behavior was potentially

going to cause, what kind of havoc that weapon and other weapons were going to do on the

streets of Chicago,” noting the prevalence of gun violence in the city.

¶ 19 Finally, the court acknowledged defendant’s father had not been present in his life and

his brother’s suicide was a tragedy. However, it found there was “far more aggravation than

mitigation” and did not “see [defendant] being a great candidate and having great potential for

rehabilitation.”

¶ 20 Defendant filed a motion to reconsider sentence, arguing his sentence was excessive, the

court improperly considered in aggravation matters that were implicit in the offense, and

improperly penalized him for exercising his right to trial. The court denied his motion. Following

the denial, the court urged defendant to consider participating in a program called “Thinking for

a Change,” which could be beneficial in helping him “appreciate the consequences of [his]

actions and how they affect [him] and other people.”

¶ 21 On appeal, defendant argues the trial court’s statements regarding him fleeing from

police and helping his friend hide the firearm used to fire the shot were not supported by the

evidence adduced at trial. Thus, defendant maintains, the court’s reliance on unproven

aggravating facts at sentencing resulted in an unfair sentencing hearing. He asks this court to

remand his case for a new sentencing hearing.

¶ 22 Defendant acknowledges that defense counsel did not object to this error and include it in

his motion to reconsider sentence. However, he asks that we review it under both prongs of the

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plain error doctrine. To preserve a claim of sentencing error, a defendant must make a

contemporaneous objection and file a written posttrial motion raising the issue. People v. Hillier,

(2010). However, under the plain error doctrine, “[p]lain errors or defects

affecting substantial rights may be noticed [on appeal] although they were not brought to the

attention of the trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).

¶ 23 In the sentencing context, a defendant must show either that (1) the evidence at the

sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the

defendant a fair sentencing hearing. Hillier,

(citations omitted). “To obtain

relief under this rule, a defendant must first show that a clear or obvious error occurred.”

This

is because without reversible error, “there can be no plain error.” People v. Mitchem,

, ¶ 37.

¶ 24 We find defendant has not met the threshold requirement for plain error review, which is

demonstrating that clear or obvious error occurred. Hillier,

.

¶ 25 AHC is a Class X felony with a sentencing range of 6 to 30 years’ imprisonment. 720

ILCS 5/24-1.7(b) (West 2016) (“Being an armed habitual criminal is a Class X felony.”); 730

ILCS 5/5-4.5-25 (West 2018) (sentencing range for Class X felonies is 6 to 30 years’

imprisonment). Defendant was sentenced to 10 years. His sentence is within the statutory

guidelines, so we presume it is proper. See People v. Burton,

.

¶ 26 Defendant maintains that the circuit court relied on improper aggravating evidence when

it stated he was fleeing from police and helping his associate hide the firearm used to fire the

shot, inferences for which there was no evidentiary support in the trial evidence.

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¶ 27 The parties disagree as to the standard of review. Defendant argues we should review

whether the trial court relied on an improper sentencing factor de novo (citing People v.

Abdelhadi,

, ¶ 46) while the State argues we must review this issue for

an abuse of discretion (citing People v. Streit,

(1991)). However, we need

not belabor that question because, under either standard, we would find defendant is not entitled

to resentencing.

¶ 28 Under the Illinois Constitution, the trial court must impose a sentence that balances the

seriousness of the offense and the 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.”

A court need not discuss each relevant factor or articulate the basis for the

sentence imposed; it is presumed that the court considered the evidence in imposing the

defendant’s sentence. People v. Averett,

(2008).

¶ 29 A trial court cannot ignore a mitigating factor, nor can it consider an improper

aggravating factor (People v. Higgins,

), such as an aggravating

factor based on speculation (People v. Zapata,

(2004)). However, a

reviewing court can affirm a sentence despite an improper factor if the record shows the weight

placed on that factor was so insignificant it did not result in a greater sentence. People v. Heider,

(2008). We do not focus on isolated statements; rather, we consider the record as

a whole. People v. Brown,

. It is the defendant’s burden to

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affirmatively show the sentence was based on improper considerations, and we will not reverse a

sentence imposed by the trial court unless it is clearly evident the sentence was improperly

imposed. People v. Bowen,

.

¶ 30 Here, looking at the record as a whole, we do not find that defendant’s sentence was

improperly imposed. Even assuming the court’s comments regarding defendant fleeing from

police or hiding his associate’s weapon were improper inferences from the evidence, the record

does not show that the weight the court placed on those comments was so significant that it led to

a greater sentence. See People v. Heider,

(2008) (sentence based on an improper

factor may be affirmed where review of the record “establishes that the weight placed on the

improperly considered aggravating factor was so insignificant that it did not lead to a greater

sentence”).

¶ 31 Rather, the record reflects the court properly considered all the relevant sentencing

factors, including the information in the PSI report, defendant’s criminal history and background,

and the nature of the offense. The court made the allegedly improper comments in discussing the

circumstances of the offense, explaining to defendant that, had he stayed at the scene instead of

fleeing after one of his “guys” fired the shot in broad daylight, he would probably not have been

charged, and that by fleeing he made the situation worse. Circumstances of the offense are

proper considerations at sentencing. Knox,

(the nature and

circumstances of the crime are relevant sentencing factors). The court also considered the

seriousness of the offense, emphasizing that the 50-round weapon in defendant’s possession was

especially dangerous, “impractical for anything but shooting up whole neighborhoods, shooting

up a series of other individuals that you’re at war with or that you’re in conflict with.” See

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People v. Contursi,

(the seriousness of the offense is the most

important sentencing factor).

¶ 32 The court also noted defendant’s failure to realize the seriousness of the offense, “what

kind of havoc that weapon and other weapons were going to do on the streets of Chicago.” See

People v. Matute,

(a sentencing court may infer lack of remorse

from “the manner of commission of the offense” or “any other competent evidence adduced at

trial or at the sentencing hearing”). The court emphasized defendant’s escalating criminal

behavior, demonstrated by his failure to curb his criminal behavior after his juvenile

adjudications and the fact that he now had not only drug convictions but weapons convictions.

The court balanced the seriousness of the offense with defendant’s potential for rehabilitation,

finding there was far more aggravation than mitigation and concluding defendant’s behavior and

background did not show he had great rehabilitative potential. See People v. Babiarz,

(1995). (“Where the sentencing court examines a presentence report, it is

presumed that the court considered the defendant’s potential for rehabilitation.”).

¶ 33 In sum, the record as a whole shows that, although the court mentioned defendant’s flight

from police and attempt to hide the fired weapon, it did not place significant weight on these

inferences. Rather, the court carefully considered the proper sentencing factors and based

defendant’s sentence on all those factors. The court did not err at sentencing. There is, therefore,

no plain error.

¶ 34 Defendant argues alternatively that defense counsel was ineffective in failing to object to

the trial court’s mischaracterization of the evidence and include the issue in defendant’s motion

to reconsider his sentence. He claims he was prejudiced because, had the court realized it was

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recalling the evidence incorrectly, he would have likely received a lesser sentence. Claims of

ineffective assistance of counsel are governed by the test set forth in Strickland v. Washington,

(1984) and adopted in People v. Albanese,

(1984). To

succeed on such a claim, a defendant must prove (1) that his attorney’s performance fell below

an objective standard of reasonableness, and (2) that there exists a reasonable probability that,

absent the errors, the outcome would have been different. Strickland,

. Because

we have concluded defendant’s sentence was proper, he cannot demonstrate he was prejudiced

by counsel’s failure to raise this issue in his motion to reconsider sentence. Accordingly, his

ineffective assistance of counsel claim fails.

¶ 35 We affirm the judgment of the circuit court of Cook County.

¶ 36 Affirmed.

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