Opinion
1-21-1244
06-29-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN HERNANDEZ, 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. 21 CR 03420 Honorable Joseph M. Cataldo, Judge, presiding.
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court. Justices Rochford and Martin concurred in the judgment.
ORDER
LAMPKIN, PRESIDING JUSTICE
¶ 1 Held: Defendant's conviction for aggravated battery with a firearm affirmed where the evidence established that defendant knowingly discharged a firearm that caused injury to another without legal justification, and defendant failed to establish plain error at sentencing.
¶ 2 Following a jury trial, defendant Nathan Hernandez was found guilty of aggravated battery with a firearm and sentenced to 17 years in prison. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated battery with a firearm because its witnesses were incredible and his version of events was more plausible. Defendant also argues that, when imposing sentence, the trial court improperly considered elements inherent in the offense and a charge and related conduct of which defendant had been acquitted. We affirm.
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
¶ 3 The State proceeded to trial against defendant on one count each of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2020)), aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2020)), and attempted armed robbery (720 ILCS 5/8-4(a), 18-2(a)(2) (West 2020)) as to Miguel Soria and one count of attempted armed robbery (720 ILCS 5/8-4(a), 18-2(a)(2) (West 2020)) as to Juan Chagolla. Defendant's theory at trial was self-defense.
¶ 4 Prior to trial, the State offered defendant 18 years in prison in exchange for a guilty plea on the aggravated battery with a firearm charge, which he rejected. At a subsequent conference pursuant to Illinois Supreme Court Rule 402(d) (eff. July 1, 2012), the trial court offered defendant 17 years in prison in exchange for a guilty plea on the aggravated battery with a firearm charge, which he also rejected.
¶ 5 At trial, Soria testified that on January 29, 2020, he went to the Wendy's in Schiller Park with his younger brother Chagolla to deliver "some cardies," which are "vape" cartridges that contain THC. Chagolla drove his vehicle, an all-black Ford Fusion, and Soria rode in the passenger seat.
¶ 6 Soria and Chagolla parked in the Wendy's parking lot where they were supposed to meet Xavier Rodriguez, an old neighbor. Defendant "came out of nowhere" and said he was there for Rodriguez, who never showed up. Soria had never seen defendant before. Soria and Chagolla let him inside the vehicle, and defendant sat behind Soria on the passenger side. Defendant asked for the cardies, and Chagolla asked for "the money." Defendant asked for the cardies again, and Chagolla asked for the money again. Soria stated that defendant appeared to reach for the money but instead pulled out a firearm. Defendant held the firearm "straight forward" and demanded "give me that s***."
¶ 7 Soria told Chagolla to run, and Chagolla exited the vehicle and ran. Soria exited the vehicle and approached the rear passenger door. The vehicle's windows were up and tinted, so Soria was unable to see inside the vehicle. When he was approximately two feet from the rear passenger door, defendant "shot [him] through the window."
¶ 8 Immediately after being shot, Soria fell to the ground. He felt numb. Chagolla picked him up and put him in the vehicle to drive him to the hospital. Chagolla drove maybe two blocks before police pulled the vehicle over for speeding. An ambulance arrived and transported Soria to the hospital, where he had a heart attack and surgeries for his heart and lung. Soria stayed in the hospital for approximately a month and a half. After the shooting, his heart only functioned at 30%, and he had a defibrillator. He did not know where defendant went after the shooting.
¶ 9 On cross-examination, Soria testified that he was not a drug dealer. The day of the shooting was the only day that he dealt drugs. There were no confrontations or differences between him and defendant. When Soria exited the vehicle, he went to the rear passenger door to try to protect "his little brother." He did not have a knife in the vehicle or when he went to the rear passenger door.
¶ 10 Chagolla testified that he grew up with Rodriguez and was friends with him. He and Rodriguez communicated on SnapChat and made a deal for 10 THC cartridges for $250. The exchange was to occur on January 29, 2020.
¶ 11 On that date, Chagolla went to the Wendy's in Schiller Park to sell the THC cartridges to Rodriguez. On the way there, he picked up Soria in his black Ford Fusion. When they arrived at Wendy's, Chagolla backed into a parking spot and informed Rodriguez that he was there. Rodriguez responded that "he was on his way." Approximately five minutes later, defendant arrived. Chagolla had never seen defendant before.
¶ 12 Defendant went to the rear passenger window, and Chagolla cracked it open. Defendant said he was there for Rodriguez, so Chagolla unlocked the vehicle and let him in. Defendant sat in the rear passenger seat behind Soria. Defendant asked for the cartridges, and Chagolla asked to see the money. Defendant asked for the cartridges again, and Chagolla asked to see the money again. When Chagolla asked for the money, he thought defendant "went to go pull it out." But instead, defendant pulled out a firearm from his waist area, aimed it in direction, and demanded the cartridges.
¶ 13 Soria told Chagolla to run. As Chagolla was exiting the vehicle, he saw Soria open his door. He did not see anything as he ran away but a few seconds later, he heard a gunshot. Chagolla turned around and saw his brother on the ground cradling his chest and yelling he had been shot. Chagolla saw defendant running away behind the vehicle. Chagolla ran to Soria, helped him off the ground, and put him in the vehicle. Chagolla called the police and drove off because he was panicked and scared. He saw the police a few blocks away from the Wendy's and stopped the vehicle.
¶ 14 On cross-examination, Chagolla testified that he was not a drug dealer. He did not see a cut on defendant's hand and denied that defendant was threatened with a knife. Chagolla testified there was no knife.
¶ 15 Schiller Park police officer Daniel Biernacki testified that on January 29, 2020, when he arrived at the Wendy's crime scene, he learned that the possible offender may have fled heading east. Footprints were found in the snow near where the vehicle was parked, heading eastbound from the Wendy's parking lot. Biernacki followed the footprints to a metal fence. Beyond the metal fence was a yard that led to a cast iron fence, where a red liquid substance, suspected blood, was found and samples collected. Matching footprints discovered down the block led to the back of a residence with a wooden fence, where more red liquid suspected blood was found and samples collected.
¶ 16 Schiller Park police officer Kevin Ramirez testified that, as part of the investigation, he interviewed Rodriguez. On February 8, 2021, Ramirez arrested defendant.
¶ 17 Elizabete Budorane, a paramedic with the Schiller Park Fire Department, testified that at about 12:45 p.m. on the date of the shooting, she arrived at the intersection of Irving Park Road and Wagner Avenue, which was approximately a two-minute drive from the Wendy's. There, Budorane observed Soria in the front passenger seat of a vehicle with a gunshot wound to the left side of his chest. While Budorane was treating Soria, he said he was shot and did not know who the shooter was or the type of firearm that was used. Soria was transported to the hospital.
¶ 18 Schiller Park police officer Demos testified that when he arrived on Wagner Avenue, he saw a black Ford Fusion and was flagged down by Chagolla. He observed Soria in the passenger seat with what appeared to be gunshot wounds to his chest. Demos noticed that the vehicle's rear passenger window was shattered. He spoke with Chagolla on the scene, patted him down, and did not recover a knife or any weapon. He also did not observe a knife or any weapons inside the vehicle.
Officer Demos' first name is not found in the record on appeal.
¶ 19 On cross-examination, Demos stated that he did not stop a speeding vehicle; rather, the vehicle was already stopped.
¶ 20 Kenneth Yakes, a former investigator with the Cook County State's Attorney's Office, testified that he collected a buccal swab from defendant.
¶ 21 Michael Matthews, a forensic scientist with the Illinois State Police, testified that he conducted DNA forensic testing on the samples collected from the fences and defendant's buccal swab. Matthews concluded that defendant could not be excluded as a contributor to the human DNA profile collected from the fences.
¶ 22 Andrew Olech, a crime scene technician for the Palatine Police Department, testified that, when he arrived on Wagner Avenue, he observed a black Ford Fusion in the middle of the roadway. The vehicle's rear passenger window was missing, appearing to have been shattered. A brasscolored shell casing was recovered from the rear seat. An electronic vaporizer pen was recovered from the cup holder area of the center console and approximately nine Glo branded vaporizer cartridges were recovered near the floorboard of the driver's side front compartment. Olech found red-colored stains on the exterior of the vehicle. He found fingerprints on the exterior of the vehicle and the interior rear passenger door handle and lock. The entire interior door handle was removed for print collection. No knife, weapon of any kind, or money was recovered from the vehicle.
¶ 23 Edward Rottman testified as an expert in the field of latent print examination. He examined three fingerprints suitable for comparison on the vehicle's interior door handle. Rottman concluded that the prints were from a left hand, and defendant "was the same person whose fingerprints appear[ed] on the door handle."
¶ 24 Defendant testified he had a firearm on the day of the shooting and did not possess a firearm license. He acknowledged he had a prior conviction for unlawful use of a weapon.
¶ 25 Defendant stated that, on the day of the shooting, he received a phone call from Rodriguez. After the call, he walked about five minutes from his girlfriend's house to the Wendy's and approached the rear passenger side of a black vehicle matching the description he had been given. Defendant knocked on the window and informed the two men inside, identified as Soria (passenger) and Chagolla (driver), that he was there for Rodriguez. The men unlocked the vehicle and let him in. Defendant sat in the rear passenger seat.
In defendant's testimony, he did not refer to the two men by name. We do so for purposes of readability.
¶ 26 The first thing Soria and Chagolla asked was if he was going to rob them. Defendant said he was not, but he would leave if there was a problem. Soria was fidgeting, and the vehicle went quiet. Defendant did not like "the vibe," so he told them he was going to leave. As he attempted to exit the vehicle, Soria "nudged at [him] with a knife." Defendant "knocked [the knife] down" with his left hand and "got cut." He then pulled out his firearm. Soria and Chagolla put their hands up, looked at each other, nodded their heads, and exited the vehicle.
¶ 27 Defendant attempted to exit the vehicle by putting his hand through the window and opening the door. As he opened the door, Soria, who was outside the vehicle, pushed the door back on him, and the firearm went off. The firearm was not aimed at anyone, and defendant feared for his life because there was a knife. After the firearm went off, defendant was scared, so he reached back through the window, opened the door, and ran. He "got rid of" the firearm.
¶ 28 On cross-examination, defendant testified that he and Rodriguez had agreed that defendant would go to buy some cartridges. He walked to the Wendy's carrying $200 in cash, his phone, and a firearm that was hidden underneath his jacket. Defendant dressed in all black to buy the cartridges. He did not know Chagolla or Soria, but Rodriguez knew them, and he trusted Rodriguez.
¶ 29 While in the vehicle, Soria, who sat in front of defendant, twisted around with a knife towards him, and the knife "stabbed" him. Defendant knocked the knife down and pulled out his firearm just to show the men. He held the firearm in his right hand but did not aim it at anyone. Soria pulled his arm back, and defendant was unsure whether Soria still had the knife in his hand. Chagolla did not have anything in his hands. As soon as Soria and Chagolla started to get out of the vehicle, defendant also tried to exit.
¶ 30 Chagolla ran and did not return to the vehicle. Soria exited the vehicle and ran to the back door where defendant sat. Defendant's window was cracked open approximately four inches, enough for his hand to get through. Defendant put his left hand through the window and opened the door from the outside while holding the firearm in his right hand. Soria pushed the door back on him. Defendant was closed inside the vehicle with Soria on the other side of the door. Defendant did not look to see whether there was a knife in Soria's hands. Defendant was afraid of Soria after Soria lunged at him with a knife. Defendant acknowledged that he could have locked the door, exited through the driver's side rear door, or called someone for help with his phone. When defendant initially tried to exit the vehicle, the door did not open.
¶ 31 Defendant did not mean to shoot Soria. Rather, the firearm accidentally went off as Soria pushed the door back on him, shooting Soria in the chest. Glass from the window shattered and fell inside and outside of the vehicle. Defendant was still holding the firearm, so he opened the door, through the window, with his left hand. Soria was still standing. Defendant ran to his girlfriend's house and went over multiple fences to get there. Defendant stated he was cut before he jumped the fences.
¶ 32 On redirect examination, defendant reiterated that, when Soria "nudged" or touched him with the knife, his left hand was cut. Defendant had a scar on his left hand approximately one to two inches long, which he showed the jury.
¶ 33 On recross-examination, defendant stated that when Soria reached around and pointed the knife at him, he knocked it out of the way but did not run.
¶ 34 In rebuttal, the State introduced as evidence a certified statement of conviction for defendant's 2017 conviction of unlawful use of a weapon.
¶ 35 The trial court instructed the jury on attempted first degree murder, attempted armed robbery, aggravated battery with a firearm, and self-defense. The jury found defendant guilty of aggravated battery with a firearm and acquitted him of attempted first degree murder and both counts of attempted armed robbery.
¶ 36 Defendant filed a posttrial motion for a new trial, and the trial court denied the motion.
¶ 37 At sentencing, in aggravation, the State read into the record a victim impact statement from Soria, who stated that "[his] life changed forever" on the day of the shooting. He explained that his heart only functioned at 35%, and he had an aneurysm on his heart that led to a small bubble that could burst at any time and possibly lead to death.
¶ 38 The State recounted defendant's criminal record, which included two prior felony convictions: unlawful use of a weapon by a felon in 2017 for which he was sentenced to bootcamp and aggravated fleeing and eluding in 2017 for which he was sentenced to 18 months of probation.
¶ 39 In mitigation, the defense read multiple letters into the record. Ideliz Rodriguez wrote that she had known defendant since he was four years old. She described defendant as a hard-working, dependable, organized, and loving man who always went above and beyond for his family and friends. Defendant was extremely conscientious of other's feelings and showed compassion and friendliness towards other people.
¶ 40 Felipe Lopez wrote that he had known defendant since defendant was five years old. He thought defendant was a "good kid" who got caught up with a bad crowd. Lopez believed defendant had learned his lesson and would be a productive human being once he "[got] out."
¶ 41 Juan Hernandez, an executive director at A Fresh Start Sober Living, wrote that he hoped defendant would be given a chance instead of prison time and believed that defendant would turn his life around and help others in the process.
¶ 42 Defendant spoke in allocution, reading a letter he wrote. In the letter, defendant stated that he "started to be around the wrong crowd," which led him in the wrong direction. He acknowledged that he made mistakes, which caused him to go to bootcamp. His almost two-year-old son made him want to become a better man. Defendant hoped the court could see he was not a bad person. Defendant stated that he had made mistakes and failed to think things through. He understood he hurt someone and his family, albeit unintentionally, and prayed for their forgiveness every day and would continue to. Defendant asked the court to give him another chance to correct his wrongs.
¶ 43 The court sentenced defendant to 17 years in prison. In announcing sentence, the trial court remarked on the nature of Soria's injuries, defendant's use of a firearm, and that he was trying to commit an armed robbery. The court stated that it considered the presentence investigation report (PSI), the evidence presented, the statements made, all statutory and nonstatutory factors in mitigation and aggravation, defendant's statement in allocution, all arguments by counsel, and the history and character of defendant. The court stated that the offense was
"another crime committed in the community where a firearm was involved, by a defendant who had a prior gun charge, went to boot camp, which is a great program, but apparently it didn't keep him from carrying a firearm and committing a, or trying to commit an armed robbery and shooting somebody."
The court further stated that defendant had "a prior other felony, fleeing and eluding and [possession of a controlled substance], so two prior cases where there [were] felony convictions of the defendant."
¶ 44 On appeal, defendant first argues that the State failed to prove him guilty beyond a reasonable doubt of aggravated battery with a firearm. Defendant claims that because the jury acquitted him of attempted armed robbery, the jury questioned Soria and Chagolla's credibility and the believability of their version of events. He asserts his version of events was a more plausible account of the shooting.
Defendant expressly states that he is not arguing inconsistent verdicts on appeal.
¶ 45 When a defendant challenges the sufficiency of the evidence, the reviewing court must determine whether, viewing the evidence in the light most favorable to the State," 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. '" (Emphasis in original.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The State bears the burden of proving beyond a reasonable doubt every element of an offense. People v. Gray, 2017 IL 120958, ¶ 35. The trier of fact determines the credibility of witnesses, the weight given to their testimony, and the inferences drawn from the evidence, and resolves conflicts or inconsistencies in the evidence. People v. Tenney, 205 Ill.2d 411, 428 (2002). As to the credibility of witnesses and the weight of evidence presented, the reviewing court will not substitute its judgment for that of the trier of fact. People v. Siguenza-Brito, 235 Ill.2d 213, 224-25 (2009). The trier of fact's decision to accept testimony as credible is given great deference but is not conclusive and does not bind this court. People v. Cunningham, 212 Ill.2d 274, 280 (2004). We will not reverse a criminal conviction unless the evidence is so "unreasonable, improbable, or unsatisfactory that a reasonable doubt of the defendant's guilt remains." People v. Hines, 2021 IL App (1st) 191378, ¶ 31.
¶ 46 In this case, to sustain a conviction for aggravated battery with a firearm, the State needed to prove beyond a reasonable doubt that defendant knowingly discharged a firearm and caused any injury to another person during the commission of a battery. 720 ILCS 5/12-3.05(e)(1) (West 2020). A defendant commits battery if he or she knowingly, without legal justification, by any means causes bodily harm to an individual. 720 ILCS 5/12-3(a)(1) (West 2020).
¶ 47 After viewing the evidence in the light most favorable to the State, we conclude that a rational trier of fact could find that defendant, without legal justification, discharged a firearm that caused injury to Soria. The testimony was consistent that Rodriguez arranged to purchase THC "vape" cartridges, defendant arrived at the Wendy's in Rodriguez's place, and got into the rear passenger seat of Chagolla's vehicle. Defendant admitted that he arrived armed with a firearm and shot Soria.
¶ 48 Chagolla and Soria testified that while they were seated in the vehicle, defendant requested the cartridges. When they were not produced, defendant pulled out the firearm, aimed it at Chagolla and Soria, and demanded the cartridges. Chagolla exited the vehicle and ran. When Soria exited the vehicle and approached the rear passenger door, defendant shot him in the chest through the window. Soria still suffered the effects of the physical shooting at the time of trial. Chagolla and Soria testified that they were unarmed and denied having a knife in the vehicle. The evidence was sufficient to establish that defendant, without lawful justification, knowingly discharged a firearm at Soria, causing him bodily harm. See People v. Little, 2018 IL App (1st) 151954, ¶ 54 (the positive testimony of a single credible witness is sufficient to support a conviction).
¶ 49 Nevertheless, defendant argues that, because he was acquitted of attempted armed robbery, the jury questioned Soria and Chagolla's credibility and found their denial that a knife was involved unreliable. Defendant claims his version of events, which involved a claim of self-defense premised on Soria's possession of a knife, was more plausible and corroborated by the physical evidence because he had a scar on his left hand, and his blood was found on two fences that he jumped over as he ran to his girlfriend's house.
¶ 50 Defendant testified that Soria brandished a knife when defendant stated he was going to exit the vehicle. As defendant pushed the knife away with his left hand, he sustained a cut. Defendant admitted that he then displayed a firearm but denied aiming it at anyone. Chagolla ran away, and Soria approached the rear passenger door. While holding the firearm in his right hand, defendant reached through an opening in the rear passenger window measuring about four inches and opened the vehicle's door from the outside with his left hand. Defendant testified that Soria pushed the door back on him and the firearm accidentally "went off." Defendant left the scene and ran to his girlfriend's house, going over several fences on the way. Other testimony established defendant's blood was found on the second and third fences he scaled.
¶ 51 A defendant is only justified in the use of force that is intended or likely to cause great bodily harm if he "reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another." 720 ILCS 5/7-1(a) (West 2020). The elements of selfdefense are: (1) unlawful force is threatened against the person, (2) the person threatened is not the aggressor, (3) the danger of harm was imminent, (4) the force used was necessary, (5) the person actually and subjectively believed a danger existed that required the use of force applied, and (6) the person's beliefs were objectively reasonable. Gray, 2017 IL 120958, ¶ 50. A defendant's self-defense claim fails where any one element is negated. Id.
¶ 52 The jury heard defendant's testimony, was instructed on self-defense, and nevertheless found defendant guilty of aggravated battery. Taking the evidence and all reasonable inferences therefrom in a light most favorable to the State, we find the evidence sufficient to support the jury's determination that the shooting was not legally justified. Defendant asserted that he feared for his life because "there was a knife," but he admitted he did not look to see whether Soria had a knife in his hands as Soria approached the rear passenger door. Defendant acknowledged that he could have locked the door, exited through the rear driver's side door, or used his phone to call for help, but did none of these things. Defendant testified that the firearm accidentally "went off" when Soria pushed the door back on him. From this, it can be reasonably inferred that the firearm was aimed directly at Soria given that defendant continued to hold the firearm in his right hand, requiring he use his left hand to open the vehicle's door from the outside, and that Soria was shot in the chest.
¶ 53 According to defendant's version of the shooting, his left hand was cut when he pushed Soria's knife away. He testified he reached through a four-inch opening in the window with his just cut left hand and opened the vehicle door from the outside while holding the firearm in his right hand. However, Soria and Chagolla denied they had a knife, and no firearm, knife, or other weapon was found inside the vehicle, at the scene of the shooting, or following a search of Chagolla. Further, the record does not show evidence of blood inside the vehicle, on the outside door handle defendant allegedly grasped with his cut hand, or on the metal cyclone fence that defendant jumped over first to get to his girlfriend's house. Red stains were found on the outside of the vehicle. However, there was no evidence this was blood, let alone defendant's blood. Defendant's blood was only found on the second and third fences he jumped over, leading to the reasonable inference he cut his hand when scaling the first fence, not when pushing away a knife while inside the vehicle.
¶ 54 Under the circumstances of this case, the jury could reasonably reject defendant's testimony regarding his fear and need for self-defense as self-serving and incredible. People v. Moore, 358 Ill.App.3d 683, 688 (2005); see People v. Durden, 231 Ill.App.3d 84, 86 (1992) (whether the defendant aimed the firearm toward the victim is irrelevant when none of the factors justifying self-defense are present).
¶ 55 Defendant is essentially requesting that we reweigh the trial evidence and draw different credibility conclusions from the jury as to the version of events. It is not within our province to do so. It is the role of the trier of fact, here the jury, to resolve conflicts in the testimony of the witnesses and determine the weight to be given to evidence. People v. Brown, 2013 IL 114196, ¶ 48. As trier of fact, the jury can choose to accept or reject all or part of a witness' testimony. People v. Joiner, 2018 IL App (1st) 150343, ¶ 62. Moreover, this court will not reverse a conviction merely because a defendant alleges that a witness' testimony was not credible and his version was more plausible. People v. Robinson, 2015 IL App (1st) 130837, ¶ 60.
¶ 56 The jury heard all the evidence and, given its finding that defendant was guilty of aggravated battery with a firearm, necessarily credited Soria and Chagolla's testimony over defendant's in regard to his claim that he shot in self-defense. We will not substitute our judgment for the jury's as to credibility determinations and weight of the evidence. Brown, 2013 IL 114196, ¶ 48. We do not find that the evidence and reasonable inferences therefrom, viewed in the light most favorable to the State, was so "unreasonable, improbable, or unsatisfactory that a reasonable doubt of the defendant's guilt remain[ed]" as to the offense of aggravated battery with a firearm. Hines, 2021 IL App (1st) 191378, ¶ 31; see People v. Swenson, 2020 IL 124688, ¶ 35 (all reasonable inferences are viewed in the light most favorable to the State).
¶ 57 Defendant next argues that we should either reduce his sentence or vacate his sentence and remand for resentencing because, at sentencing, the trial court improperly considered (1) the elements inherent in the offense of the aggravated battery with a firearm, consisting of the severity of Soria's injuries and defendant's use of a firearm and (2) the attempted armed robbery charge and related conduct for which he was acquitted.
¶ 58 As an initial matter, defendant concedes that this issue is forfeited as he neither objected at sentencing nor raised the alleged error in a postsentencing motion. People v. Stewart, 2022 IL 126116, ¶ 11. He requests review under both prongs of the plain-error doctrine.
¶ 59 Under the plain-error doctrine in the sentencing context, a reviewing court may consider forfeited claims where a clear and obvious error occurred and either: "(1) the evidence at the sentencing hearing was closely balanced or (2) the error was egregious so as to deny the defendant a fair sentencing hearing." People v. Ramirez, 2017 IL App (1st) 130022-B, ¶ 16. To prevail under either prong, defendant bears the burden of proving actual error. People v. Mudd, 2022 IL 126830, ¶ 22. Without an error, there can be no plain error. People v. Hood, 2016 IL 118581, ¶ 18. Here, assuming arguendo that the trial court erred by considering factors inherent in the offense and a charge and related conduct for which defendant was acquitted in aggravation, we find that the error did not amount to plain error.
¶ 60 Where a defendant alleges first-prong plain-error, the reviewing court must determine whether the defendant established that the evidence was so closely balanced that the error alone "severely threatened to tip the scales of justice." People v. Sebby, 2017 IL 119445, ¶ 51. In ascertaining whether the evidence was closely balanced, the reviewing court must "evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case." Id. ¶ 53.
¶ 61 Defendant claims that the evidence at sentencing was closely balanced, arguing that the improper considerations were "central to the court's thinking," and that his age of 23 years old and that he was a father to a young son constituted strong factors in mitigation.
¶ 62 Based on the record, we find that the totality of the evidence at sentencing fails to establish that the evidence was closely balanced. In evaluating the evidence, we note the PSI reflected that defendant's background included multiple prior felony convictions from 2017. One conviction was for unlawful use of a weapon by a felon for which he received a sentence of bootcamp, and the others were for aggravated fleeing and eluding, aggravated unlawful use of a weapon, and possession of a controlled substance for which he received a total of 18 months' probation and 60 days in jail. We must consider that the instant offense again involved defendant's use of a firearm. The evidence at sentencing also shows that defendant's conduct caused serious injury to Soria, which was detailed in Soria's victim impact statement.
¶ 63 We acknowledge the PSI reflected that defendant had strong familial support and was close to his young son. As mitigation evidence, defendant offered letters on his behalf and spoke in allocution, expressing his remorse and stating that he did not intend to cause harm to Soria. Although the mitigation evidence was not insubstantial, defendant fails to show that the factors in mitigation were closely balanced with the factors in aggravation, particularly in light of his prior firearm-related convictions. Given that the evidence was not closely balanced, it cannot be said that the trial court's consideration of any alleged improper factors in aggravation threatened to tip the scales of justice against him. Accordingly, defendant fails to satisfy the first prong of plainerror.
¶ 64 Defendant also argues that second prong plain-error applies here because the trial court's alleged improper considerations in aggravation unjustly affected his "fundamental right to liberty" and therefore deprived him of a fair sentencing hearing.
¶ 65 As stated above, we must consider the sentencing hearing in its entirety. In doing so, we find that defendant was not deprived of a fair sentencing hearing where the record establishes that the court considered multiple factors in aggravation and mitigation and did not rely heavily on the alleged improper sentencing factors to impose a harsher sentence. We are mindful that the court emphasized the nature and circumstances of the offense and defendant's criminal background, which included prior firearm-related offenses.
¶ 66 We also note that defendant was convicted of aggravated battery with a firearm, which, as charged, is a Class X felony offense with a sentencing range of 6 to 30 years in prison. 720 ILCS 5/12-3.05(h) (West 2020); 730 ILCS 5/5-4.5-25(a) (West 2020). Because defendant's 17-year prison sentence was within the permissible statutory range, it is presumed proper (People v. Williams, 2019 IL App (1st) 173131, ¶¶ 21, 22) and does not lead us to infer a reasonable probability exists that his sentence might have been less had the trial court refrained from mentioning the alleged improper factors in aggravation.
¶ 67 Most importantly, in pronouncing sentence, the court expressly referenced the Rule 402(d) conference "on this very charge" and stated that "there's been more aggravation after hearing all of the testimony and everything else, but [it was] impressed by the defendant's letter and his statement that he made today and the family support that he ha[d] and some community support," demonstrating it placed weight on this mitigating evidence. Ultimately, the trial court sentenced defendant to 17 years in prison for aggravated battery with a firearm, which was the same term it offered defendant on this offense during the Rule 402(d) conference, less than the 18 years in prison the State had offered defendant, and less than the maximum 30 years in prison sentence defendant faced on this Class X felony offense. Based on this record, it is clear that any weight the court placed on the alleged improper factors in aggravation was insignificant and did not result in a harsher sentence. See People v. Heider, 231 Ill.2d 1, 21 (2008) (sentence affirmed where the court placed insignificant weight on an improperly considered aggravating factor).
¶ 68 Nevertheless, defendant claims that because the trial court "explicitly mentioned the improper factors in handing down the sentence, it cannot be presumed that they did not play a role in the sentence." However, it is reversible error for the sentencing court "to not merely mention, but rely on, an improper aggravating factor in sentencing." People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 17. Here, defendant failed to show any such reliance.
¶ 69 We find the record is clear that the court did not deprive defendant of a fair sentencing hearing based on any alleged improper consideration of Soria's injuries, defendant's use of a firearm, and the attempted armed robbery charge and conduct for which defendant was just acquitted. Heider, 231 Ill.2d at 21 (2008). Accordingly, because defendant fails to establish that the court's alleged improper considerations deprived him of a fair sentencing hearing, he cannot satisfy the second prong of plain-error. Consequently, defendant is not entitled to relief under the plain-error doctrine.
¶ 70 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 71 Affirmed.