Opinion
1-19-2567
12-23-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLINTON BROWN, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 17 CR 16885 The Honorable Geraldine D'Souza, Judge, presiding.
JUSTICE TAILOR delivered the judgment of the court. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
TAILOR, JUSTICE
¶ 1 Held: Defendant's conviction for aggravated discharge of a firearm is vacated pursuant to the one-act, one-crime rule when it is based on the same act as his conviction for attempted murder. The trial court did not abuse its discretion when sentencing defendant within the statutory range for attempted murder and home invasion.
¶ 2 Following simultaneous bench and jury trials, defendant Clinton Brown was found guilty of one count of attempted murder (720 ILCS 5/8-4(a) (West 2016), 720 ILCS 5/9-1(a)(1) (West 2016)); one count of home invasion (720 ILCS 5/19-6(a)(4) (West 2016)); two counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2016)); and two counts of unlawful use or possession of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2016)). The trial court imposed concurrent prison terms of 32 years for attempted murder and home invasion, 10 years for each aggravated discharge count, and 5 years for each UUWF count.
¶ 3 On appeal, Brown contends that one of his convictions for aggravated discharge of a firearm must be vacated pursuant to the one-act, one-crime rule when it is based on the same act as his conviction for attempted murder. He also contends that the trial court abused its discretion by imposing 32-year prison sentence for attempted murder and home invasion rather than the statutory minimum sentence. We affirm in part and vacate in part.
¶ 4 I. BACKGROUND
¶ 5 Brown was charged by indictment with multiple offenses following a November 2, 2017, incident involving victims Kerstin Reed and Bruce Craig. The State proceeded on two counts of attempted murder, one count of home invasion, two counts of aggravated discharge of a firearm, and two counts of UUWF. Relevant here, count III alleged that Brown committed attempted murder by personally discharging a firearm at Craig. Count XIX alleged that Brown committed aggravated discharge of a firearm when he fired in Craig's direction. Brown elected a bench trial on the UUWF counts, and a jury trial on the remaining counts. The record reflects that Brown was wheelchair-bound at the time of trial.
¶ 6 Reed testified that she dated Brown for two years. Brown was not a law enforcement officer. When Reed and Brown broke up in spring 2017, Brown moved out of her home on Indianwood Boulevard in Park Forest and returned his key.
¶ 7 Reed met Craig in August 2017 and thereafter wanted no contact with Brown, so she changed her phone number and deactivated her social media account. On Halloween 2017, Reed received a letter from Brown stating that, in reference to someone named "Greg," he fought "demons not to come out there and shoot that mother f*** in the head" so Reed could "see his brain *** explode." Reed understood this as a threat to shoot Craig. However, she did not call the police and threw away the letter.
¶ 8 On November 2, 2017, Reed and Craig were in her bedroom when she heard a booming sound at the front door. Someone entered the house and fired into the bedroom. Craig took his firearm from Reed and returned fire. After the shooting stopped, Reed looked out a window and saw Brown in the grass. She did not invite Brown over that day and had not invited him over since she met Craig.
¶ 9 During cross-examination, Reed denied that Brown's belongings remained at her home on November 2, 2017. She denied dating Brown and Craig simultaneously or telling a police officer that she and Brown broke up in June 2017, but acknowledged testifying before the grand jury that they broke up in July 2017. Reed and Brown broke up twice, but she denied that it was "normal" for them to break up and reunite. She denied calling Brown's friend Roy Knight on the morning of November 2, 2017, and asking him to tell Brown to come home. Reed did not see the person who entered the house and fired. Craig handed her his firearm after the shooting stopped and she put it on her closet floor.
¶ 10 During redirect, Reed acknowledged that she testified before the grand jury that Brown moved out in mid-April 2017, and their relationship ended in July 2017.
¶ 11 Craig testified that he dated Reed since August 2017. Around noon on November 2, 2017, they were watching television in a bedroom when he heard a loud noise from the locked storm door followed by a much louder "impact noise" against the front door. Craig heard the doorjamb break, the door slam against the inside of the house, and footsteps.
¶ 12 Craig went to the bedroom door and saw Brown, whom he identified at trial, three feet away with a firearm. Brown fired twice. Craig felt a bullet pass him. Reed grabbed Craig's firearm, gave it to him, and he fired twice at Brown. Brown retreated toward the front door and fired three more times in Craig's direction. Craig moved to the hallway and fired four to six times at Brown, who fled the house, fell, and fired once more into the house. When the police arrived, Brown was on the lawn. Craig gave his firearm to Reed, and later gave it to officers.
¶ 13 During cross-examination, Craig testified that he locked the doors to Reed's home earlier that day. He could legally obtain a firearm in Indiana but not in Illinois. The firearm was not registered to him.
¶ 14 Michael Williams, a home construction and remodeler working at the house next to Reed's, testified that as he drove down Indianwood Boulevard shortly after noon on November 2, 2017, he saw an African-American man wearing a hat kick the door of a residence and go inside. Williams turned around, parked, and then saw the same person on the ground. The man said he was shot and asked Williams to call the police.
¶ 15 Park Forest police officer Ryan Purdy testified that he responded to Reed's address and observed Brown in the front yard near a hat, a phone, and gloves. Brown stated he had been shot and his left leg was broken. A protective pat-down recovered six live rounds of .38-caliber ammunition from Brown's back right pocket.
¶ 16 Park Forest police detective Alex Bregin testified that a revolver containing six spent shell casings was recovered 15 feet from where Brown lay on the ground. Entry to the residence appeared to be forced, the storm door was shattered, and the door jamb to the panel door was in the living room. There were two "circular defects" in the wall facing the front door, one to the right of the bedroom door, and two more inside the bedroom. A firearm was recovered from the bedroom closet.
¶ 17 Additional evidence established that gunshot residue (GSR) tests were administered to Reed, Craig, and Brown.
¶ 18 Forensic scientist Ellen Chapman testified that Brown's GSR test was negative, and that Reed's and Craig's tests were positive. A person who wore gloves when firing a weapon, or who wiped or washed his or her hands, could test negative for GSR.
¶ 19 The State presented evidence establishing that a bullet recovered from a dresser in the bedroom was fired from the revolver recovered in the yard near Brown. Additionally, in the bench trial, the State admitted a certified copy of Brown's conviction for possession of a stolen motor vehicle in case number 12 C6 60466.
¶ 20 Brown testified that he was 46 years old and had a conviction for possession of a stolen motor vehicle. He and Reed began dating in 2015 and were together for two years. When Reed would catch "an attitude," Brown would go to his mother's home until Reed "cooled off." They would not break up, but Brown would give her "cool-down time." Brown denied they broke up in spring 2017, as he still supported Reed financially. In November 2017, Brown lived with Reed "[o]ff and on," had belongings in the home, and contributed financially.
¶ 21 On November 2, 2017, Brown spoke with Knight and then went to Reed's home. He knocked several times, then did a "heel knock" and waited. A voice Brown did not recognize told him to enter and he opened the unlocked door. When Brown took two steps inside, the bedroom door opened and a man with a firearm appeared. Brown, who was unarmed, raised his hands. The man "chamber[ed]" the firearm and yelled," 'B*** a*** n***, this is my woman now.'" Brown "lunged" toward the man and held down his hand, but the man fired, hitting Brown's right shin. As Brown "buckled," the man shot him again. While on the ground, Brown reached into the fireplace where he had previously "stashed" a loaded .38-caliber weapon, grabbed it, and fired in the man's direction. Brown did not try to hit the man, only to repel him. The man retreated into the bedroom. As Brown tried to stand, the man turned a corner and aimed at Brown, so Brown fired again. Brown tried to exit the house and "snatched" the door, causing the "trim and stuff" to fall off. The man again fired at Brown, shattering the glass door. Brown hopped to the sidewalk and lay down.
¶ 22 During cross-examination, Brown acknowledged the letter that he sent to Reed but asserted that they "said a lot of stupid stuff to each other" and that he wrote it after seeing her flirt with someone at a party. He testified that the letter also stated that Reed "was not worth [Brown] going to jail for." Brown did not know Reed was dating someone else and asserted that she "set" him up. He did not use his key on November 2, 2017, because the door was open. Brown admitted that he was not allowed to own a firearm but asserted that the weapon he fired was never "on" him; rather, it was in the fireplace under a fake log. Brown denied wearing gloves but had gloves in his pocket.
¶ 23 The jury found Brown not guilty of the attempted murder of Reed. However, the jury found Brown guilty of the attempted murder of Craig, home invasion, and two counts of aggravated discharge of a firearm. The trial court found Brown guilty of two counts of UUWF.
¶ 24 Defense counsel filed a motion and supplemental motion for a new trial. Brown also filed a pro se motion alleging ineffective assistance of counsel. Following a preliminary inquiry pursuant to People v. Krankel, 102 Ill.2d 181 (1984), the trial court denied Brown's motion. The trial court also denied Brown's motion for a new trial.
¶ 25 The presentence investigation report reflected that Brown was 44 years old on the date of the incident and had prior convictions for disorderly conduct, driving on a revoked or suspended driver's license, possession of a stolen motor vehicle, retail theft, harassment by telephone, possession of cannabis, battery, and traffic-related convictions from Minnesota. Brown also had pending charges for resisting a corrections officer. Brown reported a "normal" childhood, although his father was an alcoholic and his parents separated when he was a teenager. He passed his General Educational Development tests, was previously employed, and had two adult children. Brown was diagnosed with an anxiety disorder and took medication for anxiety, sleep issues, high blood pressure, and diabetes. His leg had not healed correctly after surgeries from this incident.
¶ 26 At sentencing, the State argued that Brown entered a home and discharged a firearm, had two prior Class 2 felony convictions, and misdemeanor convictions in Illinois and Minnesota. The State asked for a sentence above the minimum. Defense counsel argued that Brown was employed at the time of the incident, had two adult children, and helped care for his 84-year-old mother, who recently suffered a stroke. Brown took medication for diabetes and high blood pressure and might need additional surgery on his leg. The defense tendered a letter from a friend stating that Brown was a "family guy" and a "big kid at heart."
¶ 27 In allocution, Brown characterized the proceeding as a "kangaroo court," because he went to Reed's home and was shot at "point blank range." He questioned why, if he fired at Craig, Craig was uninjured. Brown explained that he only had a conviction for possession of a stolen motor vehicle because he bought a vehicle in a family member's name, and a dispute occurred when he tried to return it. He noted that he had no prior "gun" or drug cases, yet an "altercation" with his ex-girlfriend, during which her new boyfriend shot him, resulted in his "life" being taken "away."
¶ 28 The trial court imposed a 12-year prison sentence for both attempted first degree murder and home invasion, with a 20-year enhancement on each count because Brown personally discharged a firearm. The trial court sentenced Brown to 10 years for each count of aggravated discharge of a firearm, and 5 years for each UUWF count. All sentences were concurrent.
¶ 29 Defense counsel filed a motion to reconsider sentence, which the trial court denied. The trial court stated that the sentences were not excessive given the danger Brown posed to Reed and Craig. The trial court added that it properly considered Brown's criminal background and the facts of the case. Brown filed a timely notice of appeal.
¶ 30 II. ANALYSIS
¶ 31 On appeal, Brown first contends that his conviction for aggravated discharge of a firearm against Craig should be vacated pursuant to the one-act, one-crime rule when it is based upon the same act as his conviction for attempted murder of Craig. Brown acknowledges in his reply brief that he failed to preserve this issue by not raising it before the trial court. See People v. Hillier, 237 Ill.2d 539, 544-45 (2010) ("to preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required"). However, he requests review pursuant to the plain error doctrine. See People v. Ramsey, 239 Ill.2d 342, 412 (2010) ("[A]lthough defendant did not argue plain error in his opening brief, he has argued plain error in his reply brief, which is sufficient to allow us to review the issue for plain error.").
¶ 32 Under the plain error doctrine, this court may review an unpreserved error when an error occurred and either (1) "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant," or (2) "that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." (Internal quotation marks omitted.) People v. Thompson, 238 Ill.2d 598, 613 (2010). A violation of the one-act, one-crime rule constitutes second-prong plain error. People v. Coats, 2018 IL 121926, ¶ 10.
¶ 33 Pursuant to the one-act, one-crime rule, "[m]ultiple convictions are improper where they are based on precisely the same act." In re Angel P., 2014 IL App (1st) 121749, ¶ 66. However, multiple convictions are proper "where a defendant has committed several acts, despite the interrelationship of those acts." People v. King, 66 Ill.2d 551, 566 (1977). "[A]n 'act' is defined as any overt or outward manifestation that will support a separate conviction." People v. Almond, 2015 IL 113817, ¶ 47. When analyzing one-act, one-crime issues, we first determine "whether a defendant's conduct consisted of separate acts or a single physical act." People v. Rodriguez, 169 Ill.2d 183, 186 (1996). If the defendant committed multiple acts, the court then determines whether any offenses are lesser-included offenses. Id. Whether a violation of the one-act, one-crime rule has occurred is a question of law, which we review de novo. In re Angel P., 2014 IL App (1st) 121749, ¶ 63.
¶ 34 Here, count III alleged that Brown committed attempted murder by personally discharging a firearm at Craig, and count XIX alleged that Brown committed aggravated discharge of a firearm when he fired in Craig's direction. The State concedes that the indictment did not "apportion" the gunshots such that separate convictions for attempted murder and aggravated discharge could stand (see People v. Crespo, 203 Ill.2d 335, 344-45 (2001) (to support multiple convictions, the charging instrument must indicate that the State intends to treat a defendant's conduct as separate, multiple acts)), and that we should vacate Brown's conviction for aggravated discharge of a firearm in the direction of Craig and amend the mittimus accordingly. We agree that because both offenses rested on the same physical act-discharging a firearm in Craig's direction-multiple convictions are improper. In re Angel P., 2014 IL App (1st) 121749, ¶ 66.
¶ 35 Having found that Brown's convictions violate the one-act, one-crime rule, we must determine which offense is the most serious (People v. Artis, 232 Ill.2d 156, 170 (2009)), as "judgment and sentence may be entered only on the most serious offense" (People v. Smith, 233 Ill.2d 1, 20 (2009)). To determine the most serious offense, we compare their relative punishments. Artis, 232 Ill.2d at 170.
¶ 36 Attempted murder is a Class X felony (720 ILCS 5/8-4(c)(1) (West 2016)) with a sentencing range of 6 to 30 years in prison (730 ILCS 5/5-4.5-25(a) (West 2016)), whereas aggravated discharge of a firearm is a Class 1 felony (720 ILCS 5/24-1.2(a)(2), (b) (West 2016)) with a sentencing range of 4 to 15 years in prison (730 ILCS 5/5-4.5-30(a) (West 2016)). Thus, attempted murder is the more serious offense. See Artis, 232 Ill.2d at 170 (when "determining which offense is the more serious, a reviewing court compares the relative punishments prescribed by the legislature for each offense," as greater punishment is mandated for the more serious offense). Consequently, we vacate the conviction for, and sentence imposed on, the charge of aggravated discharge of a firearm in the direction of Craig under count XIX.
¶ 37 Brown next contends that the trial court abused its discretion when it imposed concurrent 32-year prison terms for attempted murder and home invasion rather than the statutory minimum of 26 years. He argues that the mandatory 20-year firearm enhancement on each count "already accounted for the seriousness" of the offenses and that the trial court erred by subjecting him to the "likelihood" of death in prison.
¶ 38 When determining a sentence, "the trial court has broad discretionary powers." People v. Stacey, 193 Ill.2d 203, 209 (2000). We give substantial deference to the trial court because "the trial judge, having observed the defendant and the proceedings, is in a much better position to consider factors such as the defendant's credibility, demeanor, moral character, mentality, environment, habits, and age." People v. Snyder, 2011 IL 111382, ¶ 36. Accordingly, a sentence will not be disturbed absent an abuse of discretion. Stacey, 193 Ill.2d at 209-10. An abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court. People v. Johnson, 347 Ill.App.3d 570, 574 (2004).
¶ 39 The Illinois Constitution requires that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. The trial court must consider "all factors in aggravation and mitigation, including, inter alia, the defendant's age, demeanor, habits, mentality, credibility, criminal history, general moral character, social environment, and education, as well as the nature and circumstances of the crime and of defendant's conduct in the commission of it." People v. Quintana, 332 Ill.App.3d 96, 109 (2002). Where a sentence falls within the statutorily mandated guidelines, it is presumed to be proper and will be overturned only where there is an affirmative showing that the sentence departs significantly from the "spirit and purpose of the law" or is "manifestly disproportionate to the nature of the offense." Stacey, 193 Ill.2d at 210. Absent some indication to the contrary, other than the sentence itself, a reviewing court presumes the trial court considered all mitigating evidence presented. People v. Thompson, 222 Ill.2d 1, 37 (2006). A defendant's rehabilitative potential is not entitled to greater weight than the seriousness of the offense. People v. Reed, 2018 IL App (1st) 160609, ¶ 62.
¶ 40 Here, Brown was found guilty of attempted murder during which he personally discharged a firearm (720 ILCS 5/8-4(c)(1) (West 2016) (the sentence for attempted murder is the sentence for a Class X felony)) and home invasion during which he personally discharged a firearm (720 ILCS 5/19-6(a)(4), (c) (West 2016) (as charged, home invasion is a Class X felony)). The applicable sentencing range for these Class X offenses was therefore 6 to 30 years in prison (see 730 ILCS 5/5-4.5-25(a) (West 2016)), plus a 20-year mandatory firearm enhancement because Brown personally discharged a firearm when committing them (see 720 ILCS 5/8-4(c)(1)(C) (West 2016); 720 ILCS 5/19-6(c) (West 2016)).
¶ 41 The trial court imposed a 12-year prison term on each count, plus the mandatory enhancement, which is within the statutory range and therefore presumed proper. People v. Knox, 2014 IL App (1st) 120349, ¶ 46. We cannot say the imposition of sentences six years above the minimum and well below the maximum for forcibly kicking his way into a home and shooting at its occupants was an abuse of discretion. See People v. Abrams, 2015 IL App (1st) 133746, ¶ 31 ("Illinois case law presumes a sentence within the statutory mandated guidelines is proper ***."). While Brown argues that the trial court did not sufficiently explain its reasoning when imposing sentence, "the court need not recite and assign a value to each factor it had considered." People v. McGuire, 2017 IL App (4th) 150695, ¶ 38; see also People v. Gordon, 2016 IL App (1st) 134004, ¶ 51 ("The trial court is not required to detail precisely for the record the exact process by which it determined the penalty ***.").
¶ 42 Brown, however, argues that reducing his sentences for attempted murder and home invasion to the statutory minimum would comport with the Illinois Constitution's "mandate" that sentences should reflect the goal of restoring an offender to useful citizenship and is appropriate considering his family ties, health, work history, and nonviolent criminal background. He argues that the 32-year aggregate prison term amounts to a de facto life sentence which forecloses an opportunity to return to useful citizenship.
¶ 43 Here, defense counsel argued in mitigation that Brown was close to his elderly mother, had two adult children, worked prior to the offense, and suffered from several health issues. The presentence investigation report set forth much of this mitigating evidence, as well as Brown's criminal history. Brown identifies nothing in the record, other than the fact that the statutory minimum was not imposed, as support for his argument that the trial court did not consider the mitigating evidence presented. Absent evidence to the contrary, it is presumed that the trial court considered evidence presented in mitigation. Thompson, 222 Ill.2d at 37. While a sentence should reflect both the seriousness of the offense and the objective of restoring the offender to useful citizenship (People v. Jones, 2015 IL App (1st) 142597, ¶ 38), the most important factor in sentencing, as noted, involves the seriousness of an offense, not mitigating evidence (People v. Harmon, 2015 IL App (1st) 122345, ¶ 123). Moreover, the existence of mitigating factors does not require the minimum sentence or prohibit the maximum sentence. Id.
¶ 44 We are unpersuaded by Brown's reliance on People v. Buffer, 2019 IL 122327, for the proposition that a 32-year sentence amounts to an improper de facto life sentence. In Buffer, our supreme court identified sentences over 40 years as de facto life sentences for juvenile offenders (id. ¶ 41), and here, Brown, citing Buffer, challenges a 32-year sentence imposed for offenses he committed at age 44. Brown cites no caselaw in support of extending the rationale for protection of juvenile offenders in Miller v. Alabama, 567 U.S. 460 (2012) and its progeny to offenders in their forties. See People v. Humphrey, 2020 IL App (1st) 172837, ¶ 33 (noting that the expansion of the Miller protections was restricted to individuals who were between 18 and 21 years old). ¶ 45 We are similarly unpersuaded by Brown's reliance on People v. Wilson, 2022 IL App (1st) 192048, as the defendant in that case was 19 years old at the time of the offense and sentenced to 65 years in prison. Id. ¶ 84. There, we rejected the State's argument that because Buffer focused on juveniles, its reasoning could not be applied to "young adult" offenders. Id. ¶ 95. While we acknowledged that a young adult offender will reach his "anticipated life expectancy sooner, not later, than a juvenile offender" (id.), we had no occasion to consider middle-aged offenders near Brown's age. Further, to the extent that Brown cites various studies regarding the consequences of imprisonment on health and life expectancy, these materials were not presented to the trial court and cannot be considered for the first time on appeal. See People v. Mehlberg, 249 Ill.App.3d 499, 531-32 (1993) (not considering studies cited for first time on appeal because they were "an attempt to interject expert-opinion evidence into the record" that was not subject to cross-examination or considered by trial court).
¶ 46 While a de facto life sentence for an adult might be an abuse of discretion under the particular facts and circumstances of a given case, this is not such a case. The record establishes that Brown's sentence is a function of-in addition to factors in mitigation-aggravating factors such as the threat of serious harm he caused, his criminal background, and deterrence of others. He was sentenced to a term that was 6 years above the minimum and 18 years below the maximum. The kind of sliding-scale sentencing schema based on the adult offender's age that Brown essentially urges us to adopt finds no support in our sentencing jurisprudence.
¶ 47 Ultimately, Brown asks us to reweigh the factors the trial court considered at sentencing and substitute our judgment, which we will not do. See Jones, 2015 IL App (1st) 142597, ¶ 40. Brown's sentences for attempted murder and home invasion are within the applicable sentencing range, and we cannot say that they vary greatly from the spirit and purpose of the law or are manifestly disproportionate to the nature of the offense. Knox, 2014 IL App (1st) 120349, ¶ 46. Therefore, the trial court did not abuse its discretion in reaching its sentencing judgment.
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, we vacate Brown's conviction and sentence for aggravated discharge of a firearm in the direction of Craig under count XIX. We affirm the judgment of the circuit court of Cook County in all other aspects. We order the mittimus corrected accordingly.
¶ 50 Vacated in part; affirmed in part.