Opinion
No. 1-14-1962
03-30-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RECO HOLMES, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 11 CR 2881 (02) Honorable Brian Flaherty, Judge Presiding. PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Gordon and Lampkin concurred in the judgment.
ORDER
¶ 1 Held: Affirming defendant's convictions for armed robbery and home invasion where (1) the trial court did not err in denying defendant's motion to quash arrest and suppress evidence, and (2) statements made by the prosecutor during rebuttal closing argument did not substantially prejudice defendant so as to deny him a right to a fair trial. Defendant's sentence is upheld in light of People v. Hunter, 2017 IL 121306. ¶ 2 Following a jury trial, defendant Reco Holmes was convicted of armed robbery and home invasion, and sentenced to concurrent terms of 25 years' imprisonment, which included a 15- year enhancement for defendant's use of a firearm. Defendant, age 16 at the time of the offense, was tried and sentenced as an adult in accordance with the automatic transfer provision set forth in section 5-130 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-130 (West 2010)). On appeal, defendant maintains that: (1) the trial court erred in denying his motion to quash and suppress evidence; (2) various statements by the prosecutor during closing argument deprived him of a fair trial; (3) the automatic transfer provision of the Act is unconstitutional; (4) the amendment of the automatic transfer provision of the Act which occurred while this matter was pending on appeal applied to him retroactively; and (5) the subsequent amendment of the sentencing guidelines that apply to juveniles is retroactive and requires that this cause be remanded for resentencing in light of the new statutory provisions. Initially, we found no error committed by the trial court, but concluded that the amendment to the automatic transfer provision applied retroactively, vacated defendant's sentence, and remanded to the juvenile court for resentencing. Thereafter, our supreme court entered a supervisory order directing us to reconsider our initial decision in light of People v. Hunter, 2017 IL 121306. For the reasons stated below, we affirm the judgment and sentence of the trial court.
¶ 3 BACKGROUND
¶ 4 The State charged defendant with numerous offenses, including those relevant to this appeal, armed robbery and home invasion. Both charges were predicated on defendant being armed with a firearm during the robbery. The armed robbery charge alleged that, on January 26, 2011, defendant and two other individuals (Fletcher Wandick (Wandick) and Daviea Ashley (Ashley)), committed a robbery "by use of force or by threatening the imminent use of force" while "armed with a firearm." ¶ 5 At the time of defendant's trial, armed robbery committed with a firearm by an offender who was at least 15 years old was an offense requiring defendant's case to be transferred to adult court without a hearing. 705 ILCS 405/5-130(1)(a) (West 2010). Defendant's case was so transferred. ¶ 6 Thereafter, defendant filed a motion to quash his arrest and suppress evidence alleging that the police lacked probable cause to arrest him without a warrant and therefore any subsequent statements he made should be suppressed as "fruit of the poisonous tree." Only one individual testified during the suppression hearing, Lieutenant Brad Bailey (Bailey) of the Riverdale Police Department. Bailey testified as follows. On January 26, 2011, he received information regarding a recent home invasion that occurred in the 14000 block of Stewart Avenue at 10:20 p.m. The victim, Willie Lewis (Lewis), reported that four African-American males wearing dark clothing had entered his home, two armed with handguns, and had taken items including a 50-inch television, an Xbox gaming system, and his vehicle (a blue Buick LeSabre). The victim further provided the license plate number of the Buick. ¶ 7 At 10:43 p.m., a few minutes after receiving the information regarding the home invasion, Bailey was traveling down the alley adjacent to the 14200 block of Normal Avenue when he observed a vehicle matching the victim's description and license plate number. Three African-American males wearing dark clothing were removing items from the Buick. The three individuals then observed Bailey and commenced running in the direction of the front entrance of a single family home. Bailey testified he could not view their faces and could not identify them, but did hear the front entrance of the residence closing and the men did not thereafter reappear. ¶ 8 Bailey then observed a fourth African-American male wearing dark clothing, whom he identified as Wandick, near a gold Chrysler which contained a 50-inch television inside. Upon making eye contact with Bailey, Wandick ran into the residence. Bailey called for back-up officers, who arrived around 11:30 p.m. ¶ 9 Bailey and the back-up officers secured the perimeter around the residence. During their search of the exterior of the residence, they discovered two handguns outside a window. After negotiating with the residents inside, at 2:50 a.m. nine adults (five males including defendant and four females) along with three children emerged. The officers placed the nine adults under arrest and escorted them to the police station. At approximately 5:15 a.m. defendant, in the presence of his mother, made an inculpatory statement. At no time did any of the officers have a warrant for defendant's arrest. ¶ 10 Upon considering this evidence, the trial court denied defendant's motion to quash, finding that: (1) the circumstantial evidence established that three men, who had been removing items from the stolen Buick, fled inside the residence and did not thereafter exit the residence; and (2) defendant was among the men who were inside the residence. The trial court thus concluded that the police had probable cause to believe defendant was involved in the home invasion based on the evidence. ¶ 11 The matter then proceeded to trial where the evidence demonstrated that on January 26, 2011, at 10:30 p.m., Lewis returned home where he was confronted by a man with a handgun, who he later identified as Ashley. Lewis' hat was pulled over his eyes by Ashley, who whistled, and moments later a second man was behind Lewis. Ashley and the second individual forced Lewis into his apartment where Lewis was bound face-down on the living room floor. Ashley collected items from the apartment while the second individual held Lewis down and placed the barrel of a handgun at his neck. The second individual, who Lewis identified as having a "young" voice, threatened Lewis that if he were to move, he would shoot him. While Lewis remained bound and blindfolded, he heard a third person enter his apartment and who commenced going through his possessions. After approximately 45 minutes, the three men exited the apartment. Thereafter, Lewis discovered that his vehicle was missing. ¶ 12 Lewis used his neighbor's telephone to contact the police department. Lieutenant Bailey, who was on patrol in the area, received the information regarding the robbery, namely that certain items were taken including Lewis' Buick, a 50-inch television, and an Xbox video gaming system. He was also provided with a description of the suspects, that they were four African-American males wearing dark clothing. Shortly thereafter, Bailey discovered the Buick in the alley adjacent to the 14000 block of Normal and observed three African-American males wearing dark clothing removing items from the vehicle. These three individuals ran from Bailey in the direction of a single family residence and moments later Bailey heard a door slam. Bailey then observed Wandick (whom he described as being an African-American male wearing dark clothing) in a gold Chrysler which had a 50-inch television in the backseat. Upon viewing Bailey, Wandick also ran towards the residence. Bailey called for back-up. Bailey testified he could not identify defendant as one of the individuals who fled, he did not observe any of the individuals enter the residence, and he did not observe defendant with any stolen property. ¶ 13 The responding officers created a perimeter around the house. In doing so, two handguns were discovered in a planter by the front door. A few hours later, the occupants of the residence emerged, five men, four females, and three children. Defendant was among the five men. All of the adults, including defendant, were arrested and taken to the police station. ¶ 14 As defendant was 16 years old, Detective Glen Williams (Williams) notified defendant's mother, Sharon Henderson (Henderson), that her son was in custody. Upon her arrival at the police station, Henderson spoke with her son privately for five minutes. Thereafter, Williams and his partner read defendant his Miranda rights, which defendant and his mother acknowledged in a written "Notification of Rights" form. Defendant and his mother then agreed to speak with the detectives who proceeded to question defendant. At 5:15 a.m. defendant made an inclupatory statement. ¶ 15 According to Williams, defendant made an oral statement, which provided as follows. Wandick informed defendant that he wanted to rob a man (Lewis) from whom he had previously purchased marijuana. Defendant and Ashley agreed to rob Lewis and Wandick provided them with handguns. Defendant and Ashley arrived at Lewis' residence and waited for him to return home. They approached Lewis at his front door. They displayed the handguns and Ashley pulled Lewis' hat over his eyes. After they forced Lewis into his apartment, they bound Lewis' hands and legs together. Ashley began to remove property from Lewis' apartment while defendant restrained Lewis with one foot on the victim's neck and another foot on the victim's back. Defendant also held a handgun to Lewis' head and threatened to kill Lewis if he moved. Shortly thereafter Wandick entered the apartment and began assisting Ashley in removing Lewis' property. When they were finished, all three men left and returned to Wandick's residence, taking Lewis' vehicle. Defendant did not indicate which vehicle he occupied. They parked in the alley behind Wandick's residence and began unloading the vehicle. It was at that point in time when an officer appeared and they all ran into Wandick's residence. ¶ 16 Cook County Assistant State's Attorney Tara Pease-Harkin (ASA) testified that she interviewed defendant the following day. Henderson was in the room as she conducted her interview. According to the ASA, defendant informed her that Wandick asked if he and Ashley would participate in a robbery. The three then drove to Lewis' apartment in Wandick's vehicle and waited for Lewis to arrive home. When he did, defendant and Ashley approached Lewis, pulled his hat over his eyes, pointed a handgun at him, and forced him into the apartment. Once inside the apartment, they laid the victim face-down on the ground. Defendant restrained Lewis by placing his foot in the middle of the victim's back and threatened to shoot him if he moved. Defendant removed two tire rims, a change jug, and an Xbox from Lewis' apartment. After the robbery, the three men returned to Wandick's residence with Lewis' vehicle. Defendant declined to have a written statement prepared by the ASA. ¶ 17 Henderson, however, testified on defendant's behalf that she did not hear her son make the statements as testified to by Williams and the ASA. According to Henderson, she and defendant participated in three interviews. During the first interview, defendant did not make any of the statements referred to by Williams. Regarding the third interview (the one with the ASA), Henderson further denied hearing her son make the statements as relayed by the ASA. Henderson did not testify as to the second interview. ¶ 18 The evidence further established that Lewis viewed a line-up at the police station where he identified Ashley and Wandick. Defendant was never placed in a line-up and was never identified by Lewis as one of the individuals who robbed him. ¶ 19 The parties stipulated to the forensic evidence. The testimony by various forensic experts indicated that while certain partial fingerprints were recovered from the tire rims and Wandick's Chrysler, these fingerprints were not suitable for comparison. Other fingerprints taken from the tire rims and Lewis' closet door, which were suitable for comparison, were not a match to defendant, Wandick, or Ashley. ¶ 20 After the parties rested, they presented closing arguments. The State asserted the evidence favored a conviction on both the home invasion and armed robbery charges. The defense, however, attacked the sufficiency of the evidence and argued that defendant was merely "in the wrong place at the wrong time." Defense counsel emphasized that no witness observed defendant at the victim's apartment or outside of Wandick's residence, that there was no fingerprint evidence, and that defendant's statement was not transcribed or recorded. At the conclusion of closing arguments, the jury was instructed and commenced deliberations. The jury ultimately found defendant guilty on both counts for home invasion and armed robbery, each while armed with a firearm. Thereafter, defendant filed a motion for a new trial, which the trial court denied. The trial court sentenced defendant as an adult to 25 years' imprisonment on each count with the sentences to run concurrently. This appeal followed.
The record includes two different spellings of Wandick's name. In light of our order in People v. Wandick, 2015 IL 123096-U (Unpublished under Supreme Court Rule 23), we apply the spelling as provided therein. --------
¶ 21 ANALYSIS
¶ 22 On appeal, defendant maintains that: (1) the trial court erred in denying his motion to quash and suppress evidence; (2) various statements by the prosecutor during closing argument deprived him of a fair trial; (3) the automatic transfer provision of the Act is unconstitutional; (4) the amendment of the automatic transfer provision of the Act which occurred while this matter was pending on appeal applied to him retroactively; and (5) the subsequent amendment of the sentencing guidelines that apply to juveniles is retroactive and requires that this cause be remanded for resentencing in light of the new statutory provisions. We first turn to consider whether the trial court erred in denying defendant's motion to quash.
¶ 23 Motion to Quash
¶ 24 Defendant first contends that the trial court erred in denying his motion to quash where the evidence established that the police did not have probable cause to believe that he committed an offense and there was no warrant for his arrest. Defendant maintains that because the police lacked probable cause when they arrested him, his subsequent statements should be suppressed as the "fruit of the poisonous tree." ¶ 25 In reviewing a trial court's ruling on a motion to suppress, we apply the two-part standard of review adopted by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699 (1996). People v. Wear, 229 Ill. 2d 545, 561 (2008). "While we accord great deference to the trial court's factual findings, we will reverse those findings only if they are against the manifest weight of the evidence, we review de novo the court's ultimate ruling on a motion to suppress involving probable cause." People v. Jackson, 232 Ill. 2d 246, 274 (2009); People v. Sorenson, 196 Ill. 2d 425, 431 (2001). In reviewing a trial court's ruling on a motion to suppress we may consider evidence adduced at trial as well as at the suppression hearing. People v. Richardson, 234 Ill. 2d 233, 252 (2009). ¶ 26 A warrantless arrest will be deemed lawful only when probable cause to arrest has been proven. People v. Robinson, 167 Ill. 2d 397, 405 (1995). Probable cause exists when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the person arrested has committed a crime. People v. Hopkins, 235 Ill. 2d 453, 472 (2009). The existence of probable cause to arrest depends upon the totality of the circumstances at the time of the arrest. People v. Sims, 192 Ill. 2d 592, 615 (2000). ¶ 27 Whether probable cause exists is governed by commonsense considerations, and the calculation concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Hopkins, 235 Ill. 2d at 472. In determining whether the officer had probable cause, his factual knowledge, based on law enforcement experience, is relevant. People v. Smith, 95 Ill. 2d 412, 419-20 (1983). Though a higher standard than reasonable suspicion (People v. Leggions, 382 Ill. App. 3d 1129, 1132 (2008)), probable cause does not require evidence sufficient to convict (People v. Foster, 119 Ill. 2d 69, 83 (1987)). As our supreme court observed, "In dealing with probable cause, *** as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." (Internal quotation marks omitted.) People v. Cabrera, 116 Ill. 2d 474, 485 (1987) (quoting People v. Moody, 94 Ill. 2d 1, 7-8 (1983)). ¶ 28 Defendant argues that there was not probable cause to arrest because he was not identified by either Lewis or Bailey and he was merely in the wrong place at the wrong time. While it is true that an individual's mere proximity to others suspected of criminal activity does not, without more, give rise to probable cause to arrest, it may provide support for probable cause when combined with other relevant facts and circumstances known to the arresting officer. See People v. Foster, 309 Ill. App. 3d 1, 5 (1999) (citing People v. Lippert, 89 Ill. 2d 171, 180-81 (1982)). Accordingly, defendant's argument is not dispositive of the issue of whether Bailey had probable cause to arrest him as it fails to take into consideration the other circumstances leading up to his detention. ¶ 29 In this case, the totality of the circumstances indicates the officers had probable cause to arrest defendant during the course of their investigation. Here, the evidence established that Lewis informed the police that four African-American males dressed in dark clothing removed property from his home at gunpoint and stole his vehicle. Lewis also provided the police with a description of his vehicle and its license plate number along with a description of the items taken from his home, including a 50-inch television. Bailey, having received this information, shortly thereafter came across Lewis' vehicle and observed three men dressed in dark clothing removing items from the vehicle. When these men became aware of Bailey's presence they fled into the residence. Bailey then observed Wandick standing adjacent to another vehicle with a 50-inch television inside. Wandick also fled into the residence upon viewing Bailey. ¶ 30 Bailey then called for back-up. Aware that the suspects to the home invasion had been armed, Bailey (along with the responding police officers) searched the exterior of the residence and discovered two handguns located near the front door. Meanwhile, the occupants of the residence did not immediately exit the premises despite orders to do so by the police. Hours later, the occupants (five males, four females, and three children) exited the home. The nine adults, including defendant who is a minor, were detained and escorted to the police station for questioning. A review of the record indicates sufficient facts under the totality of the circumstances to support the trial court's finding of probable cause. Accordingly, we uphold the trial court's determination denying defendant's motion to quash arrest and suppress evidence. ¶ 31 Defendant, relying on People v. Haymer, 154 Ill. App. 3d 760 (1987), maintains that his mere proximity to an offense does not, without more, establish proximate cause. Defendant further acknowledges in his reply brief that the facts of Haymer are dissimilar to the facts of the present case, but asserts that Haymer is analogous to the case at bar because "the police here were also conducting an illegal 'expedition for evidence.' " While we agree with defendant that the facts of Haymer are distinguishable, we cannot agree the police conduct here amounted to an illegal expedition for evidence and our discussion of the facts in this case has already established that there was probable cause to arrest defendant.
¶ 32 Prosecutorial Misconduct
¶ 33 Defendant next argues that the prosecutor's statements during rebuttal closing argument denied him a fair and impartial trial. Specifically, defendant asserts the State improperly argued that (1) defendant's mother told him to tell the truth when they spoke privately, (2) defendant refused to sign a written statement because he knew he was in trouble, and (3) defendant's fingerprints would not have been on the stolen wheel caps even if he carried the wheel. Defendant acknowledges he failed to preserve this issue for our review, but nonetheless claims that we should review it under the plain-error doctrine. ¶ 34 To preserve an issue for review, defendant must object both at trial and in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Failure to do so operates as a forfeiture as to that issue on appeal. People v. McCarty, 223 Ill. 2d 109, 122 (2006). This court can, however, consider unpreserved issues under the plain-error doctrine. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The plain-error doctrine "allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The plain-error rule, however, "is not 'a general savings clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court.' " People v. Herron, 215 Ill. 2d 167, 177 (2005) (quoting People v. Precup, 73 Ill. 2d 7, 16 (1978)). Rather, our supreme court has held that the plain-error rule is a narrow and limited exception to the general rules of forfeiture. Herron, 215 Ill. 2d at 177. It is the defendant who carries the burden of persuasion under both prongs of the plain-error doctrine. People v. Lewis, 234 Ill. 2d 32, 43 (2009). This court must first consider whether any error occurred. People v. Boston, 2016 IL App (1st) 133497, ¶ 56 (citing Herron, 215 Ill. 2d at 181-82). ¶ 35 Prior to addressing defendant's arguments we observe that the parties disagree about the proper standard of review. Defendant asserts the proper standard of review in this instance is de novo. The State, on the other hand, notes that the standard of review for this issue is unclear, as our supreme court has applied both the abuse of discretion standard and the de novo standard. See People v. Wheeler, 226 Ill. 2d 92, 121 (2007) (utilizing de novo standard of review to determine whether claimed improper arguments were so egregious as to warrant a new trial); People v. Blue, 189 Ill. 2d 99, 128 (2000) (employing an abuse of discretion standard). While it is not clear if a prosecutor's comments during closing arguments are reviewed de novo or for an abuse of discretion (see People v. Daniel, 2014 IL App (1st) 121171, ¶ 32; People v. Maldonado, 402 Ill. App. 3d 411, 421 (2010); People v. Johnson, 385 Ill. App. 3d 585, 603 (2008)), we do not need to resolve the issue of the appropriate standard of review at this time, because our holding in this matter would be the same under either standard. ¶ 36 The State is afforded wide latitude in making closing arguments. People v. Glasper, 234 Ill. 2d 173, 204 (2009). A prosecutor may comment on the evidence presented at trial, as well as any fair, reasonable inferences therefrom, even if such inferences reflect negatively on the defendant. People v. Nicholas, 218 Ill. 2d 104, 121 (2005). Comments made during closing argument are not improper if they were invited by the defense and comments made during closing arguments must be viewed in the context of the entire arguments of both parties. People v. Giraud, 2011 IL App (1st) 091261, ¶ 43. "The standard of review applied to arguments by counsel is similar to the standard used in deciding whether a plain error was made: comments constitute reversible error only when they engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from those comments." People v. Fountain, 2016 IL App (1st) 131474, ¶ 82. Thus, reversal is warranted only if the prosecutor's remarks created "substantial prejudice." Wheeler, 226 Ill. 2d at 123; People v. Johnson, 208 Ill. 2d 53, 64 (2003); People v. Easley, 148 Ill. 2d 281, 332 (1992) ("The remarks by the prosecutor, while improper, do not amount to substantial prejudice."). ¶ 37 The first alleged improper remark occurred during rebuttal closing argument when the assistant State's attorney stated the following:
"But again, I think the one thing she said is on cross-examination when counsel called her she said I told my son to tell the truth. And that's what happened when she went into the room with her son by herself. She goes hay [sic], you know, you are with these guys. You got to tell the truth about what happened. And that's what Reco did. He came out and told the truth."Defendant did not object to this line of argument, but now argues that this constituted a "clear misstatement of the evidence and an improper attempt to get [the prosecutor's] own testimony in front of the jury." ¶ 38 The evidence established that Henderson did not testify that when she spoke privately with defendant she instructed him to tell the truth. The evidence does, however, indicate that Henderson "want[ed] him to be truthful with whatever he is to do." While the evidence presented at trial does not support the prosecutor's rebuttal argument, the jury was admonished numerous times by the trial court that the prosecutor's statements during closing argument were not evidence. Accordingly, any error caused by this remark was cured by the trial court's instruction. See People v. Herndon, 2015 IL App (1st) 123375, ¶ 36 (the trial court may cure any errors by giving the jury proper instructions on the law to be applied or by informing the jury that arguments are not evidence). Even if the prosecutor's remark was not cured by the trial court's instruction, the statement did not cause prejudice to defendant. ¶ 39 Defendant contends that the prosecutor again misstated the evidence in this case when he argued that defendant "refused to sign any written statements or be videotaped because he 'knew he was in trouble.' " In order to fully address this claim, we begin by recounting the pertinent evidence at trial. The ASA's testimony at trial established that defendant agreed to speak with the ASA and provided an oral statement. On cross-examination, the ASA testified she did not prepare a handwritten statement in this case because defendant "didn't want to." The ASA further testified that if a statement were to have been written, she would "do the writing," not the defendant. Comparing the allegedly improper comment with the testimony of the ASA, it is evident that the ASA did not testify that defendant refused to sign a written statement because he knew he was in trouble. ¶ 40 We, however, do not view remarks made in closing argument out of context. In fact, we review the allegedly improper remark in light of all the evidence presented against the defendant as well as within the full context of the entire closing argument. See People v. Figueroa, 381 Ill. App. 3d 828, 849 (2008) (citing People v. Flax, 255 Ill. App. 3d 103, 109 (1993); People v. Cisewski, 118 Ill. 2d 163, 176 (1987)). We further note that the State is entitled to respond to a defendant's closing argument which attacks its case and witnesses, and the defendant cannot claim prejudice when these comments are invited by his own argument. See Figueroa, 381 Ill. App. 3d at 849. ¶ 41 With these principles in mind, we turn to examine the arguments set forth by defense counsel in closing. Those statements provided, in pertinent part, as follows:
"She [the ASA] has taken written statements before. She didn't do it.
* * *
Where is the evidence? Where is the evidence? None was presented in this case. You have a police officer at the police station he has pen and paper.
Reco Holmes can read and write. He never once gave him a blank paper and say sign here. This is what you told us so that you are sure that he actually confessed.¶ 42 In rebuttal, the prosecutor argued:
*** Not once did they give them [defendant and Henderson] a piece of paper and a pen and say write down what your confession is so that you are sure that he actually confessed. Never anything.
* * *
Now, I imagine after I'm done talking to you, the prosecutors will come back and talk to you. I imagine they will tell you that well, you don't need a signed statement. You don't know [sic] a tape recorded statement. You don't know [sic] a videotaped statement. You don't need an undocumented, unsupported statement. Not true. Not true. You need evidence. You need proof to convict an innocent man. Don't believe it when they tell you that."
"And then [defense] counsel wants you to say now why isn't there a written statement? Well, now I think Reco and his mom is knowing [sic] he is in trouble. You have the police officer come. He has given the statement. He hasn't been let go.
The State's Attorney comes the next morning. He gives another statement still admitting the facts, but saying maybe not his total involvement. He is not going to sign any written statement. He is not going to be videotaped. He knows he is in trouble. And that's what the State's Attorney said.
She asked him if he would sign the statement and he said no. He knew at that time he's been now in the station overnight, over 24 hours, he is not going to be let go. He is not going to sign any written statement and that's what the State's attorney says.
And that's the reason why there was no written statement.¶ 43 Considering the full context of the closing argument, we cannot say that the prosecutor's comments were in error, particularly where they were invited and even anticipated by defense counsel's argument. See Figueroa, 381 Ill. App. 3d at 849. Moreover, a prosecutor may comment on the evidence presented at trial and make reasonable inferences based on the evidence, even if those inferences reflect negatively on the defendant. Nicholas, 218 Ill. 2d at 121. Here, the prosecutor's comments were in direct response to defense counsel's arguments and consisted of reasonable inferences made from the evidence presented. Accordingly, we find these comments did not substantially prejudice defendant so as to deny him a fair trial. See Fountain, 2016 IL App (1st) 131474, ¶ 82. ¶ 44 The third allegedly improper remark occurred during the State's rebuttal argument when the prosecutor addressed defense counsel's contention that there was no physical evidence, specifically no fingerprint evidence, linking defendant to the robbery. The State observed that the testimony established that there was no evidence that defendant touched the victim's closet or was inside the victim's automobile, and thus, it follows that his fingerprints would not be discovered in those locations. Regarding the suitable fingerprints recovered from the wheel caps the prosecutor argued, "These wheels basically are very expensive wheels that you use in the summertime. You got the wheel. You got the chrome. And then you got the caps that put on the chrome. Well, it is safe to say as an argument that if you are carrying the wheel, are you going to be touching those little caps in there?" Defense counsel then objected, asserting that the stipulation did not support the prosecutor's argument. In response the trial court instructed the jury, "Ladies and gentlemen, you will have a copy of the stipulation. Remember what the lawyers says [sic] is not evidence and you will have a copy of the stipulation." The prosecutor then continued his argument stating, "When you are carrying the wheel, you are carrying the wheel from the outside or from the rims. You are not touching the caps." ¶ 45 Defendant asserts that the prosecutor's statement denied him a fair trial as during this line of argument the prosecutor "offered up his own argument based on facts not in evidence." ¶ 46 During rebuttal, prosecutors are entitled to respond to comments made by the defendant " 'which clearly invite a response.' " People v. Ramos, 396 Ill. App. 3d 869, 875 (2009) (quoting People v. Kliner, 185 Ill. 2d 81, 154 (1998)). The record establishes that the prosecutor's argument was invited by defense counsel's remarks during closing argument. Defense counsel argued that there was "absolutely" no fingerprint or DNA evidence and that the "Forensic Scientist told you [the jury] by stipulation *** that Reco Holmes didn't commit this crime. That like [sic] Reco Holmes wasn't in Mr. Lewis' apartment. That Reco Holmes wasn't in Mr. Lewis' car. How did she do that? Science. Science. She is a scientist." Thus, the prosecutor's argument minimizing the importance of the lack of physical evidence was invited by the defense. ¶ 47 In addition, defendant objected to this line of argument and the jury was immediately instructed that what the lawyers argue is not evidence. Thus, any alleged errors were mitigated when the trial court advised the jury that comments made during closing arguments are not evidence. See People v. Desantiago, 365 Ill. App. 3d 855, 868 (2006). Moreover, the trial court further reminded the jurors that they would be provided with the stipulation during deliberations which also assisted in curing any error that could have been imparted by the prosecutor's remarks. ¶ 48 After reviewing these comments in their proper context, we cannot agree with defendant's contention that the prosecutor engaged in prejudicial misconduct such that defendant was deprived of a fair trial. Any alleged errors were mitigated when the trial court both advised the jury that comments made during closing arguments are not evidence and when the trial court sustained defendant's objections. See People v. Hampton, 387 Ill. App. 3d 206, 222-23 (2008). Since the trial court properly sustained objections to one of these comments and instructed the jury that the closing arguments are not evidence, and in light of the evidence presented, we do not believe that the jury would have reached a different verdict had these comments not been made. See id.
There is no conspiracy. There is no hiding any statement in the case. It is Reco. Reco stated what happened the first time. Minimized the second. Now if he write [sic] it down, he knows he is done. And the State's Attorney offered and he said no. And that's the reason why there was no written statement."
¶ 49 The Constitutionality of the Automatic Transfer Provision
¶ 50 Defendant asserts that section 5-130 of the Act (705 ILCS 405/5-130 (West 2010)) violates the Eighth Amendment, the proportionate penalties clause of the Illinois Constitution, and his due process rights. All of the arguments raised by defendant have been considered and rejected by our supreme court in People v. Patterson, 2014 IL 115102, ¶¶ 93, 97-98, and defendant acknowledges this fact in his brief. Accordingly, we decline to reverse the judgment against defendant on constitutional grounds.
¶ 51 The Applicability of Public Acts 99-258 and 99-69 to Defendant
¶ 52 Since defendant filed his opening brief and while this matter was pending on appeal, the Act (705 ILCS 405/5-130 (West 2016)) and the juvenile sentencing provisions of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105 (West 2016)) were amended effective January 1, 2016, pursuant to Public Acts 99-69 and 99-258. Both Public Acts 99-69 and 99-258 adopted new, identical sentencing provisions applicable to defendants under the age of 18 at the time of the commission of the offense. Hunter, 2017 IL 121306, ¶ 7 (citing Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105)). Subsection (b) of the new sentencing provision directs that the court "may, in its discretion decline to impose any otherwise applicable sentencing enhancement based upon firearm possession, possession with personal discharge, or possession with personal discharge that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person." 730 ILCS 5/5-4.5-105 (West 2016). Public Act 99-258 also amended section 5-130(1)(a) of the Act, raising the age for automatic transfer to adult court from 15 years to 16 years and eliminating armed robbery while armed with a firearm and aggravated vehicular hijacking while armed with a firearm from the list of automatic transfer offenses. Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a)). At the time of defendant's prosecution, however, section 5-130 required that all juveniles 15 years of age and older be tried as adults when they were charged with armed robbery committed with a firearm. 705 ILCS 405/5-130(1)(a) (West 2010). ¶ 53 Defendant maintains that the amendment to the Act and the new sentencing provisions in the Code apply retroactively and his case should be remanded for a discretionary transfer hearing, as well as a new sentencing hearing. ¶ 54 Our supreme court in Hunter directly addressed these issues. Hunter, 2017 IL 121306, ¶¶ 33, 37, 57. In that case, the State charged 16-year-old Hunter with aggravated vehicular hijacking, aggravated kidnapping, and armed robbery, all while armed with a firearm. Id. ¶ 4. Pursuant to section 5-130, as it existed in June 2011, Hunter was tried in adult court. Id. ¶ 5. Following a bench trial, Hunter was convicted on all three counts and sentenced to 21 years on each count. Id. ¶ 6. Similar to the case at bar, while Hunter's case was pending in the appellate court, Public Acts 99-69 and 99-258 became effective. Id. ¶ 7. Thus, on appeal, Hunter argued that the amendment to the Code and the new sentencing provisions in the Act applied retroactively. Id. ¶ 9. The appellate court held that neither provision applied retroactively. Id. Our supreme court granted Hunter's petition for leave to appeal. Id.
¶ 55 Amendment to Section 5-130(1)(a) of the Act
¶ 56 The court first considered the temporal reach of the amendment to section 5-130(1)(a) of the Act, adopted in Public Act 99-258. Id. ¶ 17. The court initially distinguished the facts of Hunter with those of People ex rel. Alvarez v. Howard, 2016 IL 120729, wherein the court held that section 5-130(1)(a) adopted in Public Act 99-258 applied retroactively to the defendant whose case was pending in the trial court at the time the amendment became effective. See Hunter, 2017 IL 121306, ¶¶ 18-33. In Howard, the 15 year old defendant was charged with murder. Howard, 2016 IL 120729, ¶ 4. At the time the defendant was charged, section 5-130 required all juveniles 15 years of age and older to be automatically transferred to adult court when they were charged with first-degree murder. Id. While the charges against the defendant were pending in the trial court, the legislature passed Public Act 99-258, which amended section 5-130 to raise the age of automatic transfer from 15 to 16 years old. Id. ¶ 5. Defendant requested the trial court conduct a hearing on whether he should be transferred, which the trial court granted. Id. ¶¶ 5, 7. The State then sought leave to file an action for a writ of mandamus in the Illinois Supreme Court, requesting that the court grant a writ compelling the trial court to maintain the action in adult court. Id. ¶ 10. Undertaking the first step of the Landgraf analysis (Landgraf v. USI Film Products, 511 U.S. 244 (1994)) and considering section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2014)), our supreme court determined that the amendment to section 5-130 as indicated in Public Act 99-258 applied retroactively and thus denied the State's request for the writ. Id. ¶¶ 28, 35. ¶ 57 In Hunter, our supreme court observed two major distinctions between the facts of Hunter and those of Howard. The first distinction involved the difference between a case that is "pending" and one that is "ongoing." Our supreme court explained that in Howard proceedings in the trial court had not yet been concluded, thus, according to our supreme court, "[i]n a real-world sense those proceedings were 'ongoing.' " Hunter, 2017 IL 121306, ¶ 30. In contrast, Hunter's case had reached judgment and was pending in the appellate court on direct review. Id. ¶ 27. The court acknowledged that "section 4 of the Statute on Statutes, which requires that 'the proceedings thereafter'—after the adoption of the new procedural statute—'shall conform, so far as practicable, to the laws in force at the time of such proceeding.' (Emphasis added.)." Id. ¶ 31. Thus, the court reasoned that "[s]ection 4 contemplates the existence of proceedings after the new or amended statute is effective to which the new procedure could apply," i.e. an "ongoing proceeding." Id. In comparison, Hunter's proceedings in the trial court were completed well before the statute was amended. Thus, "[n]o 'ongoing proceedings' exist to which the amended statute could apply." Id. ¶ 32. ¶ 58 The second distinction our supreme court made was that, unlike the facts of Howard, application of the amended statute in Hunter's case "is not practicable." Id. ¶ 37. In Howard, the 19-year-old defendant was still subject to the jurisdiction of the juvenile court at the time the court rendered its decision. Id. ¶ 38. Accordingly, it was practicable, or feasible, for the matter to be remanded to the juvenile court for a transfer hearing. Id. Hunter, however, was 22 years old at the time the court rendered its decision and thus the court concluded "[a] discretionary hearing in the juvenile court is no longer feasible because the juvenile court may not exercise jurisdiction over Hunter." Id. ¶ 59 In sum, our supreme court held that the amendment to section 5-130(1)(a) of the Act does not apply retroactively to Hunter's case "because the amendment to section 5-130(1)(a) of the Act did not become effective until after Hunter's trial court proceedings were concluded and his case was pending in the appellate court; because no reversible error necessitates remand for further proceedings to which the amended statute could apply; and because Hunter, in any event, is no longer subject to the jurisdiction of the juvenile court, making remand impracticable." Id. ¶ 43. ¶ 60 Applying Hunter's holding to the facts of this case, we similarly conclude that section 5-130(1)(a) of the Act (as amended by Public Act 99-258) does not apply retroactively to defendant. Here, as in Hunter, defendant's trial court proceedings were concluded and his case was pending in the appellate court at the time of the amendment. In addition, we have concluded herein that no reversible error necessitates remand for further proceedings to which the amended statute could apply. Moreover, defendant, who is now 23 years old, is no longer subject to the jurisdiction of the juvenile court. Thus, we conclude in light of Hunter, that the amendment in Public Act 99-258 does not apply retroactively in this case. See Hunter, 2017 IL 121306, ¶ 43.
¶ 61 Amendments to the Juvenile Sentencing Provisions
¶ 62 As in Hunter, defendant here also argues that the new juvenile sentencing provisions in the Code (adopted in Public Acts 99-69 and 99-258) apply to him retroactively. Both of these public acts adopted identical provisions titled "SENTENCING OF INDIVIDUALS UNDER THE AGE OF 18 AT THE TIME OF THE COMMISSION OF AN OFFENSE." Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (also adding 730 ILCS 5/5-4.5-105). The new provisions provide in relevant part:
"(a) On or after the effective date of this amendatory Act of the 99th General Assembly,
when a person commits an offense and the person is under 18 years of age at the time of the commission of the offense, the court, at the sentencing hearing conducted under Section 5-4-1, shall consider the following additional factors [enumerated 1 through 9] in mitigation in determining the appropriate sentence:¶ 63 Akin to the facts of Hunter, section 5-4.5-105 of the Code became effective while defendant's case was pending in the appellate court on direct review. See Hunter, 2017 IL 121306, ¶ 46. In determining the amendment's temporal reach, our supreme court in Hunter observed that "[u]nder our well-settled rules of statutory construction, 'where the legislature includes particular language in one section of a statute but omits it in another section of the same statute, courts will presume that the legislature acted intentionally in the exclusion or inclusion' [citation] and that the legislature intended different results [citation]." Id. ¶ 48 (citing People v. Smith, 2016 IL 119659, 30; In re K.C., 186 Ill. 2d 543, 549-50 (1999)). Applying those well-settled rules, our supreme concluded that "the fact the legislature included language in subsection (a) limiting its temporal reach but omitted such language in subsection (b) is indicative that the legislature intended different results and that the limiting language in subsection (a) applies only to that subsection. Thus, only the trial court's obligation set forth in subsection (a) to consider additional factors in mitigation at sentencing is controlled by the limiting language in that same subsection." Id. ¶ 64 Our supreme court went on to consider the temporal reach of subsection (b). Id. ¶ 52. Noting that subsection (b) was silent as to its temporal reach, the court again turned to section 4 of the Statute on Statutes to determine whether subsection (b) applied to Hunter. Id. The court concluded it did not. Id. In rendering this determination, the court observed that "[t]he second sentence of section 4 of the Statute on Statutes expressly provides:
* * *
(b) Except as provided in subsection (c), the court may sentence the defendant to any disposition authorized for the class of the offense of which he or she was found guilty as described in Article 4.5 of this Code, and may, in its discretion, decline to impose any otherwise applicable sentencing enhancement based upon firearm possession, possession with personal discharge, or possession with personal discharge that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person." 730 ILCS 5/5-4.5-105 (West 2016).
'If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.' " Id. ¶ 53 (quoting 5 ILCS 70/4 (West 2016)).Accordingly, a defendant is not entitled to be resentenced under a new code which goes into effect after he or she is sentenced. Id. ¶ 54 (citing People v. Hansen, 28 Ill. 2d 322, 340-41 (1963); People v. Bradford, 106 Ill. 2d 493, 504 (1985)). The supreme court concluded that Hunter was unquestionably sentenced "well before the new juvenile sentencing provisions, including subsection (b), became effective on January 1, 2016." Id. ¶ 55. Accordingly, he was not eligible to be sentenced under subsection (b). Id. ¶ 56. ¶ 65 Once again, defendant here is in the same position as Hunter. Defendant was sentenced on June 19, 2014, a year-and-a-half prior to the new juvenile sentencing provisions becoming effective on January 1, 2016. Thus, under Hunter, the express language of subsection (a) indicates it does not apply retroactively and defendant is also not eligible to be sentenced under subsection (b) because he was already sentenced when the amendment became effective, therefore his contentions on appeal fail. See id. ¶¶ 55-56.
¶ 66 CONCLUSION
¶ 67 For the reasons stated above, the judgment of the circuit court of Cook County is affirmed. ¶ 68 Affirmed.