People v. Barber , 2021 IL App (1st) 160800-U ( 2021 )

2021 IL App (1st) 160800-USIXTH DIVISION
December 23, 2021
No. 1-16-0800
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).
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 14 CR 227501
)
)
TIMOTHY BARBER, ) Honorable
) Charles P. Burns,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
PRESIDING JUSTICE PIERCE delivered the judgment of the court.
Justices Harris and Mikva concurred in the judgment.
ORDER
¶1 Held: Defendant is guilty of second degree murder. Trial counsel was not ineffective.
Defendant’s sentence is not excessive. Under Rule 472, we remand for defendant
to move for credit against his sentence.
¶2 Following a bench trial, defendant, Timothy Barber, was convicted of second degree
murder and was sentenced to a term of 27 years’ imprisonment. Defendant now appeals and
argues: 1) the State failed to prove him guilty of second degree murder beyond a reasonable
doubt; 2) trial counsel was ineffective; 3) his sentence is excessive; and 4) there are errors in the
court’s fines, fees and costs order that need to be corrected. For the following reasons, we affirm
defendant’s conviction but remand the cause for defendant to move for credit against his
sentence.
¶3 BACKGROUND
¶4 Defendant was tried in a joint bench trial with his son and co-defendant Jason Smith for
the murder of Lamont Larkins. Defendant asserted during trial that he acted in self-defense and
defense of others and that he and Smith were authorized to use lethal force because of the
amount of force used by Larkins.
¶5 Prior to trial, the State made an oral motion in limine seeking to bar the introduction of
evidence that the victim had previously been arrested for domestic battery, criminal damage to
property, robbery and unlawful restraint. The court held that the victim’s conviction for robbery
was admissible pursuant to People v. Lynch, 102 Ill. 2d 194 (1984), but that his other arrests
were inadmissible.
¶6 On August 29, 2013, Gregory Benson and Lamont Larkins went to the home of Dorothy
Brown, where they played cards against Brown's nephew, defendant, and defendant’s son, Jason
Smith, at a table set up outside. Several others came into the yard to socialize, including Brown's
daughter, Tara Barber, Tara's boyfriend, Taurean Holmes, Tara's friend, Katrina Baker, and
Baker's boyfriend, Arthur Terry.
¶7 Brown testified that she went to bed while people were still in her yard. Sometime
thereafter, her daughter Tara woke her and told her that people were fighting. Brown went into
the backyard and saw Larkins, whom she did not know previously, lying on the ground. Her
great-nephew, Jason Smith, was holding a shirt to Larkin’s body. Larkins would not lie still so
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Smith eventually walked away from him. Someone called 911 and when the ambulance arrived,
Brown spoke with emergency personnel. Larkins was taken away.
¶8 Brown went inside and asked Smith what happened. Smith told her that Larkins accused
him of cheating during a card game and grabbed Smith’s money. Smith told her that the two
started fighting after Larkins “muffed” him, and then Smith “stuck” Larkins twice. Brown
testified that “to stick” someone meant to hit him with an object in your hand, and not just with a
fist.
¶9 Gregory Benson testified that he was friends with Larkins and went with him to play
cards at Brown’s house on the night of the incident. Larkins was already drunk when Benson
met up with him. The men played spades. Benson was Larkins’s partner and defendant was
Smith’s partner. Benson did not drink any alcohol but the other three men were drinking.
Benson testified that defendant flicked a box cutter repeatedly during the card game. Benson
estimated the length of the box cutter at one and a half inches when closed and perhaps three
inches when opened.
¶ 10 Larkins accused Smith of cheating two times during the game. Both times, Smith told
Larkins he could have the pot. When Smith needed change for a $10 bill, he went into the house
and came back out a few minutes later without change. Larkins took the $10 bill from Smith's
hand and said, "this my money, do something ‘bout it now." Larkins then punched Smith in the
face. Smith did not fight back. Larkins struck Smith again and Smith started to fight back.
When Larkins continued hitting Smith even after Larkins appeared to have gotten the best of the
fight, defendant jumped in, slashing Larkins with the box cutter. Larkins was cut on his arm,
under his eye and on his back and chest. Benson saw no other weapon.
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¶ 11 Defendant and Smith then pushed Benson and Larkins out of the backyard, toward the
alley and told them they had to leave. Smith’s female relative came outside to see what was
going on. Benson called the police. Defendant left, walking down the alley. Smith was also in
the alley but left as Benson was calling the police.
¶ 12 Benson spoke to the police but did not tell them what he saw because Smith’s and
defendant’s families were watching him. He told police that he was called to the backyard after
Larkins was stabbed. Benson spoke with the police again on September 3, and relayed what
really happened when Larkins was stabbed. Benson identified defendant and Smith from two
separate photo arrays and later identified defendant as the person who slashed Larkins in a
lineup.
¶ 13 Arthur Terry testified that he saw a friendly card game, and then he heard Larkins and
Smith arguing about money. Larkins, Benson and Smith were drinking alcohol. Terry was not
sure if defendant was drinking. Larkins grabbed cash from Smith's hand, knocked over the
table, and hit Smith in the face. Smith told Larkins to leave, but Larkins remained. Smith went
inside, and when he came back out a few minutes later the fight resumed.
¶ 14 At some point when Larkins and Smith were on the ground fighting, defendant became
involved in the fight. Terry did not see any weapon. Terry tried unsuccessfully to break up the
fight. After Larkins and Smith fought for two to three minutes, Terry saw that Larkins was
bleeding from his chest. Larkins said, “yall [sic] stabbed me.” Terry left the house.
¶ 15 Defense counsel sought to clarify Terry's testimony about when Larkins took cash from
Smith's hand. Terry answered, "It was before he even went into the house." But Terry agreed
that he told police that "after Jason came back out of the house, [Larkins] grabbed the money
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from him." On another attempt, counsel asked, "[W]hen Jason went into the house, he came out
with a $10 bill, right?" Terry answered, "I wouldn't say yes or no. I am unsure for that one."
¶ 16 Katrina Baker testified that she saw a friendly card game. At some point, Larkins and
Smith began arguing about money. Larkins put some money in his pocket. Smith then went into
the house. Defendant then went into the house and when he came to the door he began to adjust
his clothes as he returned to the yard. When she came out of the house, she saw Smith and
Larkins on the ground. She did not see either with a weapon. The fighting stopped at some
point and Larkins stood up and said that someone had stabbed him. Baker saw blood on Larkins
but did not see any actual wounds. She then left with Terry. She denied seeing Larkins holding
a piece of glass in his hand.
¶ 17 Tara Barber testified that the card game was calm until Smith and Larkins started arguing
about money. She was inside the house when she heard Larkins say, "squad up," meaning put up
your fists and fight. Tara looked out the window and saw Smith and Larkins fighting. Tara
woke up Brown and asked her to try to break up the fight while Tara stayed inside with her
children.
¶ 18 Taurean Holmes also saw the men playing cards. Larkins became mad because he lost.
Holmes went into the house after having words with Larkins. Later, he looked out the window
and saw Smith and Larkins having words. Holmes went outside and saw Smith, Larkins and
defendant fighting for approximately 15 seconds. All three men were swinging. After they
stopped fighting, Larkins said either, “yall [sic] stabbed me,” or “you cut me.” Holmes went
inside and then came out again and saw Larkins in the alley. Larkins had bloody marks on his
back and one under his forearm.
5
¶ 19 Dr. Eric Eason, the medical examiner, testified that Larkins was five feet eleven inches
tall and weighed 232 pounds. Dr. Eason found several superficial cuts on Larkins's body. A box
cutter could have made the cuts but would not have killed Larkins. A cut six inches deep
reached Larkins's heart, and that wound killed him. In Dr. Eason’s opinion, an instrument like a
kitchen knife, at least four inches long inflicted the fatal wound. Larkins’ cause of death was a
stab wound to his torso, and the manner of death was homicide.
¶ 20 The prosecution presented a video recording of defendant answering questions at the
police station. He admitted that he intervened in the fight when he saw his son losing, and he
slashed at Larkins with a box cutter.
¶ 21 Chicago police detectives Roger Murphy spoke with defendant on September 29, 2013.
Defendant gave a videotaped statement that was played during trial. He initially lied to police
about this involvement, but after being confronted with what other witnesses had told the police,
defendant admitted that he was playing cards that night when Smith and Larkins started arguing
over money and accusing each other of cheating. He saw Smith run inside and someone said that
he got a knife. While Smith and Larkins were fighting, defendant stabbed him in the back with a
box cutter two or three times. Defendant did not know if Smith stabbed Larkins and he did not
see Larkins with a knife. Defendant admitted that he was drunk at the time of the stabbing but
stated that he stabbed Larkins because he “had the best” of Smith. He left the scene and threw
the knife in the bushes.
¶ 22 Defendant introduced two stipulations into evidence. The parties stipulated that Benson
would testify that “other people jumped into the fight the second time once they got back up and
got to fight again.” The parties further stipulated that Detective Lutzow would testify that he
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interviewed Katrina Baker on the day of the murder, and she told him that Larkins put money in
his back pockets and said, “that’s my money, what you gonna do about it?” Baker also said that
she saw a piece of broken glass in Larkins’ hand. Detective Lutzow would also testify that when
he interviewed Dorothy that night, she did not tell him that Smith said he “stuck him twice.”
¶ 23 During closing arguments, defense counsel asserted that defendant was not responsible
for Larkins’s death because his box cutter could not have caused the fatal injury. Counsel also
argued that defendant and Smith were authorized to use lethal force because Larkins was being
aggressive and violent and because Larkins committed the forcible felony of robbery when he
took money from Smith before punching him.
¶ 24 The trial court found defendant and Smith guilty of second degree murder. The court
found that Larkins was the initial aggressor but that neither defendant nor Smith was justified in
responding with lethal force. The court stated that “There is no evidence that deadly force was
needed to defend this fistfight.” The court also rejected defendant’s argument that lethal force
was authorized because Larkins was committing a forcible felony. The judge said:
"It is a card game. It is a dispute over winnings. *** While it may be antisocial
and it may be wrong, at best, at best, it is a theft by person. It is nowhere near a robbery.
There was no force used to take that. *** It is not something where a person is being
knocked down on the street and your purse is being taken ***.
*** There is no forcible felony."
¶ 25 The court found defendant guilty of second degree murder and sentenced him to 27
years’ imprisonment. This appeal followed.
¶ 26 ANALYSIS
7
¶ 27 Defendant first argues that the State failed to prove him guilty of second-degree murder
beyond a reasonable doubt because the State failed to prove that he stabbed the victim or that he
was guilty on an accountability theory.
¶ 28 When reviewing the sufficiency of the evidence in a criminal case, we must determine
whether, after 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. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); People v. Smith, 185 Ill. 2d 532, 541 (1999). We will not
reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory
as to create a reasonable doubt of the defendant's guilt. People v. Rowell, 229 Ill. 2d 82, 98 (2008).
A reviewing court does not retry the defendant or substitute its judgment for that of the trier of fact
with regard to the credibility of witnesses or the weight to be given to each witness' testimony.
People v. Jackson, 232 Ill. 2d 246, 281 (2009). Rather, we “carefully examine the evidence while
bearing in mind that the trier of fact is in the best position to judge the credibility of witnesses, and
due consideration must be given to the fact that the fact finder saw and heard the witnesses.” People
v. Herman, 407 Ill. App. 3d 688, 704 (2011).
¶ 29 Section 9-2 of the Criminal Code of 1961 (Code) provides that a person commits
second degree murder when he commits first degree murder and a mitigating factor is present.
720 ILCS 5/9-2(a)(2) (West 2008). The elements of first and second degree murder are
identical, but second degree murder differs from first degree murder only in the presence of a
mitigating factor, such as an alleged provocation or an unreasonable belief in justification.
People v. Porter, 168 Ill.2d 201, 213 (1995). For a defendant to be guilty of second degree
murder, the State must first prove the defendant guilty of first degree murder beyond a
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reasonable doubt. 720 ILCS 5/9-2(c) (West 2014). The burden then shifts to the defendant to
prove the existence of the mitigating factor by a preponderance of the evidence. 720 ILCS
5/9-2(c) (West 2014).
¶ 30 "[T]o raise a claim of self-defense, a defendant must present evidence supporting each
of the following elements which justify the use of force in defense of a person: (1) that force
had been threatened against defendant; (2) that defendant was not the aggressor; (3) that the
danger of harm was imminent; (4) that the force threatened was unlawful; (5) that defendant
actually believed that a danger existed, that the use of force was necessary to avert the danger,
and that the kind and amount of force actually used was necessary; and (6) that defendant's
beliefs were reasonable." People v. Morgan, 187 Ill. 2d 500, 533 (1999). Once the defendant
has made a minimal showing on each of the necessary elements for self-defense, "the State
has the burden of proving beyond a reasonable doubt that the defendant did not act in self-
defense, in addition to proving the elements of the charged offense." People v. Lee, 213 Ill.
2d 218, 224 (2004). The determination of whether a defendant is guilty of first degree murder
or guilty of second degree murder is a question for the finder of fact. People v. Simon, 2011
IL App (1st) 091197, ¶ 52.
¶ 31 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt
as it did not establish that he was the principal where the medical examiner testified that the
blade on the box cutter that was in his possession could not have caused the fatal wound
because the fatal wound was caused by a long, firm blade that was four to six inches in length.
Defendant urges that the evidence establishes that Smith possessed the weapon that caused
the fatal wound and argues that Smith had the opportunity to retrieve a knife from the house
9
and told Brown that he stuck Larkins twice during the fight. Defendant also argues that the
State also did not establish that he was accountable for Smith’s action where there was no
agreement between defendant and Smith.
¶ 32 Viewing the evidence in the light most favorable to the State, it is clear that defendant
was convicted of Larkins’ death on a theory of accountability. To convict a defendant under
the theory of accountability, the State must prove beyond a reasonable doubt that he (1)
solicited, aided, abetted, agreed or attempted to aid another person in the planning or
commission of the offense; (2) did so before or during the commission of the offense; and (3)
did so with the concurrent, specific intent to promote or facilitate the commission of the
offense. 720 ILCS 5/5-2(c) (West 2004); People v. Smith, 278 Ill. App. 3d 343, 355 (1996).
The law on accountability incorporates the “common design rule,” which provides that where
two or more persons engage in a common criminal design, any acts in furtherance thereof
committed by one party are considered to be the acts of all parties to the common design and
all are equally responsible for the consequences of such further acts. People v. Cooper, 194
Ill. 2d 419, 434-35 (2000).
¶ 33 Accountability may be established through a person's knowledge of and participation
in the criminal scheme, even though there is no evidence that he directly participated in the
criminal act itself.” In re W.C., 167 Ill.2d 307, 338 (1995). “Evidence that a defendant
voluntarily attached himself to a group bent on illegal acts with knowledge of its design
supports an inference that he shared the common purpose and will sustain his conviction for
an offense committed by another.” Cooper, 194 Ill. 2d at 435. Nevertheless, “mere presence
10
at the scene, even with knowledge that the crime is being committed, is insufficient to establish
accountability for the actions of another.” W.C., 167 Ill. 2d at 338.
¶ 34 The evidence in this case showed that defendant inserted himself into an ongoing
physical fight between Smith and Larkins. Smith did not leave the fight after defendant joined
in. Rather, Smith continued fighting Larkins for two or three more minutes. Both defendant
and Smith were hitting Larkins. Benson saw Barber slashing Larkins and Barber admitted
slashing Larkins with his box cutter during the fight. The fight continued until Larkins stated
that he had been stabbed. A rational trier of fact could have found that defendant and Smith
shared the same design in fighting the victim, namely, to cause him great bodily harm.
¶ 35 The evidence further established that during the course of the fight, one or both of
defendant and Smith stabbed the victim. The evidence showed that defendant confessed that
he was in possession of a weapon that was similar to a box cutter but was “like a flip
pocketknife that had a razor like at the tip of it,” and he admitted joining the fight and slashing
Larkins with the box cutter. Defendant also admitted he heard someone say Smith had a knife.
Gregory testified that Larkins claimed he had been stabbed during the fight with defendant
and Smith and had numerous wounds on his body. Dr. Eason testified that not all of those
wounds were equal, and some were superficial, consistent with the use of a box cutter. The
fatal wound, however, was of a significantly different size and shape and appeared to be
caused by a different weapon. The fatal wound went six inches into Larkins and pierced his
heart, which would have required the use of a long blade. Dr. Eason opined that the fatal
wound was likely caused by a common kitchen knife, not a box cutter. Dr. Eason further
opined that a box cutter was capable of causing the superficial wounds to Larkins’ body. There
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was evidence presented that Smith had both the opportunity to obtain a knife when he went
inside the house and the motive to arm himself after Larkins took his money and punched him
in the face. Based on this evidence, a rational trier of fact could have drawn the reasonable
inference that defendant and Smith acted in concert, and under an accountability theory the
evidence was sufficient to prove Barber guilty of second degree murder beyond a reasonable
doubt.
¶ 36 In Cooper, our supreme court specifically found that “a defendant may be found guilty
under an accountability theory even though the identity of the principal is unknown.” Cooper,
194 Ill. 2d at 435. In that case, two defendants were found guilty under an accountability
theory for aggravated battery with a firearm, even though it was unclear which of the
defendants shot the victim. Our supreme court affirmed their convictions because the
defendants were working in concert as part of a common design. The failure to identify the
shooter did not preclude a finding of guilt under the common design theory of accountability.
Id. at 436.
¶ 37 Similarly, in People v. Cooks, 253 Ill. App. 3d 184 (1993), this court affirmed a
defendant's conviction for murder under an accountability theory, even though the actual
shooter was never identified. In that case, the defendant and several of his fellow gang
members pursued rival gang members after a fight. Eventually, the rival gang members were
trapped in the vestibule of a tavern. Defendant fired into the vestibule and struck one victim
in the leg. Defendant also shot another victim in the head and killed him. During the shooting,
“[a]n ‘arm’ holding a shotgun” fired into the vestibule and shot the first victim in the stomach,
killing him. Id. at 189.
12
¶ 38 The Cooks court found that the evidence sufficiently established that the defendant
shared a common design with the co-offender as the defendant facilitated the plan to harm
rival gang members. The defendant also aided the unidentified shooter by first shooting the
victim in the leg and making him more vulnerable to the subsequent shot. The court further
noted that the shots were fired as part of a joint action and the defendant did not attempt to
intervene or voice opposition to the actions of the co-offender. Id. at 189-90.
¶ 39 Based on the evidence presented, a rational trier of fact could have found defendant
guilty of Larkins' murder under an accountability theory where he shared a common design in
fighting Larkins and causing great bodily harm to Larkins in slashing him with box cutter and
then fleeing the scene after observing the injury inflicted on the victim. It was for the trial
court to determine the credibility of the witnesses and the weight to be afforded their
testimony. See People v. Sutherland, 223 Ill. 2d 187, 242 (2006). Here, the court found the
evidence was sufficient to sustain defendant's conviction for second-degree murder on a
theory of accountability and this finding is not so unreasonable, improbable or unsatisfactory
as to create a reasonable doubt of defendant's guilt.
¶ 40 We likewise reject defendant’s argument that even if defendant did cause the fatal
wound or was accountable for Smith’s actions, both defendants had lawful authority to use
lethal force because Smith was being robbed by an aggressive, intoxicated Larkins.
¶ 41 There was no credible evidence that Larkins was armed during the fight with Smith.
While it is not necessary that the aggressor be armed for a defendant to succeed on a self-
defense theory, it still must “appear that the aggressor is capable of inflicting serious bodily
harm without the use of a deadly weapon, and is intending to do so.” People v. Hawkins, 296
13
Ill. App. 3d 830, 837 (1998). There simply was no evidence presented to suggest that Larkins
was capable of inflicting serious bodily harm on either defendant or Smith.
¶ 42 The evidence merely established that Larkins was drunk and aggressive. There was
nothing from the testimony regarding Larkins’s physical size that would have led defendant
to believe that he needed to get involved in order to prevent Smith’s death or great bodily
harm. Defendant admitted that he was drunk and joined the fight because Larkins was getting
the best of Smith. Defendant admitted to using a box cutter to repeatedly stab or slash the
victim. Defendant did not claim that he did so because he believed his actions were necessary
to prevent imminent death or great bodily harm to himself or Smith. There were two people
fighting Larkins, and one of those persons, defendant, was admittedly armed with and used a
box cutter, and the other was armed with a knife while the victim was not.
¶ 43 Defendant also argues that his use of force was justified because Larkins was in the
process of committing a robbery. To justify the use of deadly force, the defense presented
evidence that Larkins committed robbery, a forcible felony (720 ILCS 5/2-8 (West 2012)). A
person commits robbery “when he or she knowingly takes property from the person or
presence of another by the use of force or by threatening the imminent use of force.” 720
ILCS 5/18-1 (West 2014).
¶ 44 Viewing the evidence in the light most favorable to the State we must reject this
argument. There was conflicting testimony from occurrence witnesses about whether Larkins
took the money from Smith before or after Smith went into the house and corresponding
conflicting testimony about whether the fist fight began before or after Smith went into the
house. When defendant was specifically asked why he got involved in the fight, he explained
14
that he did so because he was drunk and Larkins was fighting with Smith. Defendant
explained that he heard Larkins and Smith arguing over money and accused each other of
cheating. Defendant never stated that he saw Larkins grab money from Smith. There is
simply no evidence to support defendant’s theory that he interceded in the fight because he
was trying to stop or prevent the commission of a robbery.
¶ 45 Defendant next argues that he was denied a fair trial when the trial court excluded certain
Lynch evidence regarding Larkin’s prior violent behavior. Specifically, defendant argues that the
trial court should have allowed evidence of Larkin’s two prior domestic violence incidents, as
well as a criminal damage to property.
¶ 46 In Lynch, our supreme court held that when a defendant raises self-defense as a theory in
his case, evidence showing the victim's aggressive and violent character is relevant to show: (1)
the defendant's knowledge of the victim's violent tendencies affected his perceptions of and
reactions to the victim's behavior; or (2) to support the defendant's version of the facts when
there are conflicting versions of events. Id. at 200. In the second situation, the victim's character
is circumstantial evidence which may provide the trier of fact with additional facts to help decide
what really happened. People v. Bedoya, 288 Ill. App. 3d 226, 236 (1997).
¶ 47 The question of whether defendant could present evidence of Larkin’s prior aggressive
and violent behavior under Lynch was litigated extensively. In a pretrial motion, defense counsel
indicated that defendant would raise a claim of self-defense at trial. Counsel moved to admit
three instances of Larkin’s prior violent conduct: one incident of domestic battery to Larkins’
girlfriend where he attacked her, threw her against a wall and choked her, one incident of
criminal damage to property of Larkin’s girlfriend’s car, and one incident of robbery where
15
defendant was involved in a robbery of an individual in a currency exchange. Larkins was
convicted of both the domestic battery and the robbery but the criminal damage to property was
dismissed after the victim failed to appear in court. The State made an oral motion in limine,
asking the court to bar admission of this evidence.
¶ 48 Defendant claims that Larkins’s prior arrest for criminal damage to property and
conviction for domestic battery were relevant under the second reason given in Lynch, i.e., to
support defendant’s version of the events immediately preceding Larkins’ death when there were
conflicting accounts of what occurred. However, there was no dispute in this case that Larkins
was the initial aggressor. The court found stated, “there is no doubt in my mind that the victim
was the initial aggressor.” The only conflicting evidence was in regard to whether the fight began
before Smith went into the house or after.
¶ 49 We cannot say that the trial court abused its discretion when it did not allow the domestic
battery or criminal damage to property incident to serve as Lynch evidence. The court held that
Larkin’s conviction for robbery was admissible Lynch evidence but did not allow his other
arrests and convictions for domestic violence and criminal damage to property to be admitted.
With respect to their exclusion the court stated, “I believe these are dissimilar with regard to
motivation here. I don’t believe it goes to who the initial aggressor is with a domestic battery.
This is allegedly some type of dispute over a dice game, and I don’t think that those domestic
battery incidents have any probative value as to who might have been the initial aggressor in this
matter.” We agree that Larkins’ prior convictions were irrelevant to establish Larkins’ prior
violent and aggressive behavior here where there was no dispute that Larkins was the initial
aggressor.
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¶ 50 We likewise find that defense counsel was not ineffective for failing to introduce
evidence of Larkins’ robbery conviction to establish his aggressive and violent character.
Although the court ruled it admissible under Lynch, defense counsel did not present any
evidence of Larkins’ prior conviction for robbery.
¶ 51 To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1)
counsel’s performance was deficient and (2) counsel’s actions resulted in prejudice to the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Evans, 209 Ill. 2d 194,
220 (2004). Under the first prong, a defendant must demonstrate that his attorney’s performance
fell below an objective standard of reasonableness. Evans, 209 Ill. 2d at 220. Under the second
prong, prejudice is shown where there is a reasonable probability that the result would have been
different but for counsel’s alleged deficiency. Id. Failure to satisfy either prong of the Strickland
test precludes a finding of ineffective assistance of counsel. Strickland, 466 U.S. at 697.
¶ 52 The record, in our view, supports the finding that defense counsel's failure to introduce
evidence of Larkins’ prior robbery conviction to establish his violent and aggressive character
was a valid trial strategy and not unreasonable. See People v. Orange, 168 Ill. 2d 138, 153
(1995) (noting that a decision which involves a matter of trial strategy will generally not support
a claim of ineffective representation). There was no issue in this case as to who the initial
aggressor was. It was clearly Larkins. Therefore, the admission of Lynch evidence could not be
properly introduced. Defendant suffered no prejudice as a result of counsel’s failure to introduce
this evidence.
¶ 53 Defendant next argues that his 27-year sentence is excessive where it is grossly disparate
to the 12-year sentence that co-defendant Smith received. Defendant claims that the disparity in
17
the sentences was not warranted where he was not the principal and that his background does not
merit the disparity. Defendant also argues that the trial court erred in failing to consider certain
mitigating factors in imposing the sentence and improperly considered a factor inherent in the
offense.
¶ 54 A trial court has broad discretionary powers in choosing the appropriate sentence a
defendant should receive. People v. Jones, 168 Ill. 2d 367, 373 (1995). A reasoned judgment as
to the proper sentence to be imposed must be based upon the particular circumstances of each
individual case and depends upon many factors, including the defendant's credibility, demeanor,
general moral character, mentality, social environment, habits and age. People v. Perruquet, 68
Ill. 2d 149, 154 (1977). "In determining an appropriate sentence, the defendant's history,
character, rehabilitative potential, the seriousness of the offense, the need to protect society and
the need for deterrence and punishment must be equally weighed." People v. Jones, 295 Ill.
App. 3d 444, 455 (1998). The potential for rehabilitation need not be given any greater weight
than the seriousness of the offense. People v. Sharpe, 216 Ill. 2d 481, 525 (2005). There is a
strong presumption that the trial court based its sentencing determination on proper legal
reasoning, and the court is presumed to have considered any evidence in mitigation that is before
it. People v. Partin, 156 Ill. App. 3d 365, 373 (1987). The imposition of a sentence is a matter
within the trial court's discretion, and a reviewing court has the power to disturb the sentence
only if the trial court abused its discretion. Jones, 168 Ill. 2d at 373-74.
¶ 55 Defendant was convicted of second degree murder, a Class 1 offense. 720 ILCS 5/9-2(d)
(West 2012). Based on defendant’s criminal history, the trial court was required to sentence him
as a Class X offender, which carries a punishment of six to thirty years’ imprisonment. 730
18
ILCS 5/5-4.5-25 (West 2012). The 27-year sentence imposed was well within the prescribed
statutory range. We cannot say that the trial court abused its discretion here in imposing a 27-
year sentence in this case, a sentence that was well within statutory guidelines and therefore
presumptively proper. People v. Gutierrez, 402 Ill. App. 3d 866, 900 (2000).
¶ 56 We also reject defendant’s argument that the court failed to consider his rehabilitative
potential. Before imposing its sentence, the trial court was in possession of the presentence
investigation report and heard arguments in aggravation and mitigation. See 730 ILCS 5/5-5-3.1,
5-5-3.2 (West 2012). In aggravation, the court heard that defendant had three prior felony
convictions. Defendant committed the offense of first degree murder in 1989 and served a 20-year
sentence. In 2004, defendant was convicted of delivery of a controlled substance and was
sentenced to 6 years’ imprisonment. In 2007, he was convicted of aggravated driving while under
the influence and was sentenced to one year in prison. In mitigation, the court heard that defendant
worked at Popeye’s from 2009 until the time of his incarceration in this case and was named
employee of the year in 2010, 2012 and 2013. The court also heard from his co-worker and
girlfriend, and four of her children, who wrote letters to the court stating how helpful and
responsible defendant was. In addition, defense counsel informed the court that defendant had a
substance abuse problem. Nevertheless, the court chose to impose a 27-year sentence and stated,
referencing his prior murder conviction, “at no point in time can I in good conscience say his
criminal conduct will not reoccur.”
¶ 57 Defendant also argues that the trial court improperly considered that defendant’s conduct
caused serious harm as an aggravating factor, where serious harm was an element of the offense
charged. Specifically, defendant complains that the trial court remarked, “And I look at the matter
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in aggravation; of course I consider all 14 matters in mitigation, also statutory factors in mitigation
with regard to aggravation. Obviously, his conduct causes or threatened serious harm, he has a
history of prior criminal activity, that this sentence is necessary to deter others from committing a
crime.” Defendant claims that his infliction of serious harm cannot be considered as both an
element of the offense of second degree murder and as a factor in aggravation.
¶ 58 The trial court is not permitted impose a more severe sentence on the ground that defendant
caused the victim serious bodily harm, namely, death, because death is inherent in the offense of
second degree murder. People v. Saldivar, 113 Ill. 2d 256, 271-72 (1986). A court may consider
in aggravation the fact that “defendant's conduct caused or threatened serious harm.” 730 ILCS
5/5-5-3.2(a)(1) (West 2008). In applying this aggravating factor, the trial court may consider the
force employed and the physical manner in which the victim's death was brought about, which
comprehends the degree or gravity of defendant's conduct rather than the end result, that is, the
death of the victim. Saldivar, 113 Ill. 2d at 271-72.
¶ 59 In People v. Beals, 162 Ill. 2d 497 (1994), the trial court stated the following during the
defendant's sentencing hearing: “ ‘In aggravation the first guideline indicated in the statute is
“whether the conduct of the defendant caused or threatened serious harm.” Well, we all know that
your conduct caused the ultimate harm. It caused the loss of a human life.’ ” Id. Our supreme
court determined that listing factors during sentencing does not necessarily mean that the trial court
relied on all of those factors in determining the appropriate sentence reasoning that,
“The trial court never indicated, however, that it ‘considered’ the victim's death as an
aggravating factor justifying an extended-term sentence. Rather, the record suggests that
the trial court statement was simply a general passing comment based upon the
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consequences of the defendant's actions.
Even assuming arguendo that the trial court's comment may be construed in the manner
that the defendant suggests, we nevertheless conclude that the defendant's sentence
should be affirmed. A trial court's reliance upon an improper factor does not always
necessitate remandment for resentencing. [Citation.] A cause must be remanded for
resentencing only where the reviewing court is unable to determine the weight given to
an improperly considered factor. [Citation.] Where it can be determined from the record
that the weight placed upon the improperly considered aggravating factor was
insignificant and that it did not lead to a greater sentence, remandment is not required.
[Citation.]” Id. at 509-10.
¶ 58 In this case, it is evident from the record that the trial court placed little, if any, weight upon
the fact that defendant's conduct caused the ultimate harm. Although the trial court observed that
defendant's conduct caused or threatened serious harm, the record clearly reveals that the court
based its sentencing decision after considering “all of the matters of aggravation and mitigation.”
The trial court noted defendant’s age, the facts of the case, the presentence investigation report,
the victim impact statement, and the letters submitted on defendant’s behalf. The court also noted
defendant’s behavior of entering a fist fight with a box cutter, his “callous disregard” of the victim
when he pushed Larkins into the alley after the stabbing. The court further noted that defendant
was “no stranger to the criminal justice system,” but that he had “apparently stayed clean for a
couple years.” The court’s fleeting mention of defendant generally causing or threatening harm
was insignificant and in accordance with Beale, remandment on this issue is unnecessary.
¶ 59 Defendant asserts that the trial court failed to consider the financial impact of incarcerating
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him in the Illinois Department of Corrections for 27 years. See 730 ILCS 5/5-4-1(a)(3) (West
2014) (sentencing court “shall” “consider the financial impact of incarceration based on the
financial impact statement filed with the clerk of the court”). But a trial court is not required to
specify on the record the reasons for a defendant's sentence, and absent evidence to the contrary,
the trial court is presumed to have performed its obligations and considered the financial impact
statement before sentencing a defendant. People v. Canizalez-Cardena, 2012 IL App (4th) 110720,
¶ 24. Here, there is nothing in the record to rebut the presumption that the trial court considered
the financial impact of defendant’s imprisonment before sentencing him. Therefore, given that
there is no evidence that the trial court acted outside his authority, we presume the court acted in
accordance with the law when it sentenced him to 27 years in prison.
¶ 60 Last, defendant argues that six assessments classified as fees are actually fines and must be
offset by his $5 per day presentence incarceration credit. Defendant contends that the trial court
ordered him to pay $379 in fines, fees and costs but he has 881 days of presentence custody credit
that should be applied. Defendant concedes that he did not challenge these assessments in the trial
court.
¶ 61 This issue governed by Illinois Supreme Court Rule 472 (eff. Mar. 1, 2019), which was
adopted after defendant filed his brief. Rule 472 sets forth the procedure in criminal cases for
correcting certain sentencing errors, including “[e]rrors in the imposition or calculation of fines,
fees, and assessments or costs,” “[e]rrors in the application of per diem credit against fines,”
“[e]rrors in the calculation of presentence custody credit,” and “[c]lerical errors in the written
sentencing order.” Ill. S. Ct. R. 472(a) (eff. Mar. 1, 2019). The rule provides that, in criminal cases,
“the circuit court retains jurisdiction to correct” the enumerated errors “at any time following
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judgment ***, including during the pendency of an appeal.” Ill. S. Ct. R. 472(a) (eff. Mar. 1, 2019).
Additionally, “[n]o appeal may be taken” on the ground of any of the sentencing errors enumerated
in the rule “unless such alleged error has first been raised in the circuit court.” Ill. S. Ct. R. 472(c)
(eff. Mar. 1, 2019).
¶ 62 More recently, our supreme court amended Rule 472 by adding paragraph (e) (Ill. S. Ct. R.
472(e) (eff. May 17, 2019)), which provides: “In all criminal cases pending on appeal as of March
1, 2019, or appeals filed thereafter in which a party has attempted to raise sentencing errors covered
by this rule for the first time on appeal, the reviewing court shall remand to the circuit court to
allow the party to file a motion pursuant to this rule.”
¶ 63 Defendant’s appeal falls within the scope of Rule 472. Thus, pursuant to the provisions of
Rule 472, we remand to allow defendant the opportunity to file a motion to correct any sentencing
errors.
¶ 64 CONCLUSION
¶ 65 In light of the foregoing, we affirm defendant’s conviction but remand to the trial court to
allow defendant the opportunity to file a motion to correct any errors related to fines, fees or
assessments or credits he may be entitled to.
¶ 66 Affirmed; remanded for consideration of defendant’s fines and fees claim.
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