People v. Carter , 2021 IL App (1st) 191439-U ( 2021 )

2021 IL App (1st) 191439-UNo. 1-19-1439
Order filed December 20, 2021
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 19485
)
BRANDON CARTER, ) Honorable
) Frank G. Zelezinski,
Defendant-Appellant. ) Judge, presiding.
JUSTICE COGHLAN delivered the judgment of the court.
Presiding Justice Hyman and Justice Walker concurred in the judgment.
ORDER
¶1 Held: Because the trial court did not abuse its discretion in sentencing defendant, he
cannot establish plain error or ineffective assistance of counsel.
¶2 Following a jury trial, defendant Brandon Carter was found guilty of three counts of
attempted murder (720 ILCS 5/8-4(a) (West 2012); 720 ILCS 5/9-1(a)(1) (West 2012)) and
sentenced to an aggregate prison term of 60 years. On appeal, defendant contends that his sentence
is excessive and should be reduced to the statutory minimum of 52 years. We affirm.
No. 1-19-1439
¶3 Defendant and co-offenders Quinton Johnson, Dwayne Robinson, and Donyall Garrett
were each charged in the same indictment with the attempted first degree murders of Christan
Pickett, Capri Pickett, and David Shirley. 1 Relevant here, counts III, XI, and XIII for attempted
murder alleged that defendant personally discharged a firearm at Christan, Capri, and Shirley. 2
¶4 On April 7, 2012, Christan was with his aunt Capri and her boyfriend Shirley. After 11
p.m., Christan and Shirley picked Capri up from work and then drove in Shirley’s vehicle to
purchase cigarettes at the 139th and Grace projects in Robbins, Illinois. Shirley drove, Capri sat in
the front passenger seat, and Christan sat in the backseat. Once there, Shirley parked and Christan
exited to buy the cigarettes. He returned and gave a cigarette to Capri. As Christan stood outside
the vehicle, four men approached. He recognized defendant and Garrett, whom he knew by their
nicknames “Droopy” and “Face.”
¶5 The men surrounded Christan and “pulled their guns out.” Garrett said that “Easy” told him
Christan “snitched,” and Garrett should “take it up” with Christan. Defendant knocked on Capri’s
window with a firearm and told Shirley to turn the vehicle off or he would “air it out.” As Shirley
drove away, defendant fired through the window at Capri. Christan ran as “everyone” shot at him.
On April 12, 2012, Christan spoke to police officers and identified defendant and Garrett in
separate photo arrays. On April 18, 2012, he spoke with a detective and an assistant State’s attorney
(ASA), and identified photographs of defendant and Garrett.
1
For clarity, we will refer to Christan Pickett and Capri Pickett by their first names.
2
Johnson was tried and acquitted in a bench trial prior to the start of defendant’s trial. Garret, who
was tried simultaneously with defendant before the same jury, was found guilty of three counts of attempted
murder, and we affirmed on direct appeal. See People v. Garrett, 2019 IL App (1st) 162908-U. Neither
Garrett, Johnson, nor Robinson is a party to this appeal.
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¶6 Christan identified defendant and Garrett in the surveillance video taken in the parking lot
where the shooting occurred. The video showed four men surrounding a vehicle, the vehicle
driving away as a man runs in another direction, and several men shooting firearms.
¶7 Capri testified that when Christan returned from buying the cigarettes, a group of four to
six men quickly approached from across the street. She identified defendant and Garrett, whom
she knew as “Droopy” and “Face,” as two of the men. Garrett approached Christan and said,
“Officer ‘Easy’ said you snitched on me and he took five grand from me and he told me to take it
up with you.” All of the men drew firearms. Defendant tapped on Capri’s window with a firearm,
and said to “cut this mother f*** car off or we [are] going to blow it up.” Capri ducked, and
defendant fired a shot that entered the back of her arm and her lung. As Shirley drove away, Capri
heard numerous gunshots and felt the vehicle’s glass breaking. Capri was transported by
ambulance to Christ Hospital, where a chest tube was inserted to drain fluid from her lungs. As a
result of being shot, she has scars and marks on her arm and back. The doctors were unable to
remove the bullet from her lung. On April 12, 2012, Capri identified defendant and Garrett in
separate photo arrays.
¶8 Shirley identified defendant and Garrett as two of the five men that approached his vehicle
from both sides. Garrett told Christan, who was standing on the passenger side of the vehicle,
“ ‘Easy said you was out here snitching on me, I come to take it up with you.’ ” The other men
then moved to the same side of the vehicle as Garett and Christan. Shirley saw defendant, Garrett,
and another man draw firearms. Defendant tapped on the window with his firearm and said to
“ ‘[t]urn your mother*** car off.’ ” Shirley activated his headlights, and defendant began shooting
and hit Capri. As Shirley drove away, he heard gunshots and the air leaving his tires. The back
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window of the vehicle was “shot out,” but he did not see who was shooting. He realized his head
was bleeding, reached up, and felt a bullet “sitting on top of [his] head.” Shirley later identified
defendant and Garrett in separate photo arrays.
¶9 Illinois State Police sergeant Cary Morin testified that he processed Shirley’s vehicle on
April 27, 2012, observed bullet holes, and recovered five bullets. The parties stipulated that a
forensic scientist examined the recovered bullets and concluded that they were .9-millimeter or
.38-caliber bullets fired from at least two different weapons.
¶ 10 The jury found defendant guilty of three counts of attempted murder during which he
personally discharged a firearm. Defendant’s pre-sentence investigation (PSI) report showed that
he was 28 years old and had prior convictions for aggravated unlawful use of a weapon and
manufacture and delivery of a controlled substance. Defendant was raised by his mother and
described his childhood as “lovely.” He previously worked in construction, self-trained as a barber,
and “ ‘schooled [himself] *** on his own.’ ” Defendant had “good” relationships with his four
children. At the time of the PSI, defendant was wheelchair-bound due to a fall in jail and was
scheduled for back surgery.
¶ 11 At the sentencing hearing, the State argued that defendant participated in an “ambush”
meant to kill Christan and any witnesses, resulting in Capri being shot and seriously injured.
Defense counsel asked for a minimum sentence.
¶ 12 In allocution, defendant asserted his innocence and stated that a woman he was “with” was
unwilling to testify because she was currently involved with someone else. Defendant denied
having a “problem” with Capri or Christan and did not understand why the State’s witnesses lied
at trial. Defendant also mentioned that he had to explain to his children what happened.
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No. 1-19-1439
¶ 13 The court indicated that it had considered all of the factors in aggravation and mitigation
and reviewed the PSI. Although defendant’s criminal history did not include convictions for
violent crimes, this case involved a firearm and “gunshots were either fired or actually struck
people.” The trial court imposed concurrent prison terms of 26 years for the attempted murder of
Christan and 28 years for the attempted murder of Shirley. The court found that Capri suffered a
severe bodily injury, and therefore sentenced defendant to a consecutive 32-year sentence on that
count, for a total of 60 years in prison. Defendant did not file a motion to reconsider sentence.
¶ 14 On appeal, defendant contends that his 60-year aggregate sentence is excessive and should
be reduced to the statutory minimum of 52 years, which would provide adequate retribution and
the possibility of release at an age when he would be unlikely to reoffend. Defendant acknowledges
that he has forfeited this issue, but requests plain error review. In the alternative, he contends he
was denied effective assistance by trial counsel’s failure to file a motion to reconsider sentence.
¶ 15 To preserve a sentencing error claim, the defendant must make a contemporaneous
objection and raise the issue in a postsentencing motion. People v. Hillier, 237 Ill. 2d 539, 544
(2010). The plain error doctrine permits a reviewing court to consider unpreserved error when (1)
the evidence is close, regardless of the seriousness of the error; or (2) the error is serious, regardless
of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
¶ 16 In the context of a sentencing hearing, a defendant must show that an error occurred and
either (1) the evidence at the hearing was closely balanced, or (2) the error was so egregious that
it denied the defendant a fair hearing. Hillier, 237 Ill. 2d at 545. The first step in plain error review
is to determine whether an error occurred. See People v. Hood, 2016 IL 118581, ¶ 18 (without
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error, there can be no plain error). A defendant has the burden to establish plain error. See People
v. Thompson, 238 Ill. 2d 598, 613 (2010).
¶ 17 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.” People v. Stacey, 193 Ill. 2d 203, 210
(2000); see also People v. Alexander, 239 Ill. 2d 205, 212 (2010). 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. Sauseda, 2016 IL App (1st) 140134, ¶ 19. 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. Because the trial judge is in a superior position to observe
defendant and the proceedings and assess such factors as defendant’s credibility, demeanor, and
mentality (People v. Snyder, 2011 IL 111382, ¶ 36), we review the trial court’s decision for an
abuse of discretion. Stacey, 193 Ill. 2d at 209.
¶ 18 Here, defendant was found guilty of three counts of attempted murder during which he
personally discharged a firearm. See 720 ILCS 5/8-4(c)(1) (West 2012). The applicable sentencing
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range was 6 to 30 years in prison for each attempted murder count (see 730 ILCS 5/5-4.5-25(a)
(West 2012)), plus a 20-year mandatory firearm enhancement for personally discharging a firearm
while committing the offenses (see 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2012)). The trial court
imposed sentences of 6, 8, and 12 years for the attempted murders, adding a 20-year sentencing
enhancement on each count.
¶ 19 The record shows the court considered all the factors in mitigation and aggravation, as well
as the PSI in imposing sentence. The court specifically noted in mitigation that defendant had
children and no prior felony convictions for violent crimes. See People v. Willis, 2013 IL App (1st)
110233, ¶ 123 (“If mitigating evidence is presented to the trial court, we are to presume, absent
some indication to the contrary, other than the sentence itself, that the trial court considered it.”).
However, the court also considered the nature of the offense, in which defendant and several other
armed accomplices instigated the conflict by surrounding Shirley’s vehicle, and defendant
personally threatened to “blow *** up” the vehicle. As the victims attempted to flee, defendant
and his accomplices opened fire, wounding Shirley and seriously injuring Capri. Under these
circumstances, imposing a minimum sentence for the attempted murder of Cristan and two and six
years above the minimum for the attempted murders of Shirley and Capri was not an abuse of
discretion.
¶ 20 Defendant argues that a reduction to the statutory minimum of 6 years on all counts would
comport with the Illinois Constitution’s “mandate” that sentences should reflect the goal of
restoring an offender to useful citizenship. While defendant is correct that a sentence should reflect
the goal of restoring the offender to useful citizenship (People v. Jones, 2015 IL App (1st) 142597,
¶ 38), the most important factor in sentencing is the seriousness of the offense, not mitigating
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evidence (People v. Harmon, 2015 IL App (1st) 122345, ¶ 123). Moreover, the existence of
mitigating factors does not require the imposition of a minimum sentence or prevent the imposition
of the maximum sentence. Id.¶ 21 Ultimately, defendant asks us to reweigh the mitigating factors and substitute our judgment
for that of the trial court, which we will not do. See Jones, 2015 IL App (1st) 142597, ¶ 40. Because
three of defendant’s attempted murder sentences fall at or near the minimum of the applicable
sentencing range, 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. Alexander, 239 Ill. 2d at 212.
¶ 22 As defendant has failed to establish error, there can be no plain error and his procedural
forfeiture must be honored. Hood, 2016 IL 118581, ¶ 18; see also People v. Williams, 2017 IL App
(1st) 150795, ¶ 40 (“There was no error, let alone ‘plain’ error, and so we need not go further in
the plain error analysis.”).
¶ 23 For the same reason, defendant’s claim that he was denied effective assistance because trial
counsel failed to preserve his sentencing claim also fails. A defendant alleging ineffective
assistance must prove prejudice, such that “absent counsel’s deficient performance there is a
reasonable probability that the result of the proceeding would have been different.” People v.
Evans, 209 Ill. 2d 194, 219-20 (2004) (citing Strickland v. Washington, 466 U.S. 668, 687, 694
(1984)). As the trial court did not abuse its discretion, defendant cannot demonstrate any
reasonable probability that the result would have been different had trial counsel properly
preserved the issue. See, e.g., People v. Brown, 2017 IL App (1st) 142877, ¶ 66 (counsel was not
ineffective for failing to file motion to reconsider sentence where there was no reasonable
probability that the sentence would have been different had the motion been filed).
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¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 25 Affirmed.
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