                                                                         Digitally signed by
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                              Appellate Court                            Date: 2019.04.16
                                                                         11:11:34 -05'00'




                  People v. Felton, 2019 IL App (3d) 150595



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           RICHARD FELTON, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0595



Filed             January 4, 2019



Decision Under    Appeal from the Circuit Court of La Salle County, No. 13-CF-382; the
Review            Hon. Cynthia M. Raccuglia, Judge, presiding.



Judgment          Affirmed.
                  Remanded with directions.


Counsel on        James E. Chadd, Thomas A. Lilien, and Darren E. Miller, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Karen Donnelly, State’s Attorney, of Ottawa (Patrick Delfino, David
                  J. Robinson, and Thomas D. Arado, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                  Justice Lytton concurred in the judgment and opinion.
                  Justice McDade concurred in part and dissented in part, with opinion.
                                              OPINION

¶1       Defendant, Richard Felton, appeals following his convictions for home invasion and
     attempted first degree murder in separate trials. He argues that (1) an excessive amount of
     evidence of home invasion was introduced at his attempted first degree murder trial, (2) the
     mandatory 25-years-to-life firearm enhancement is unconstitutionally vague, (3) the sentences
     imposed by the circuit court were excessive, and (4) the mittimus should be amended to reflect
     the merging of charges at sentencing. We affirm and remand.

¶2                                            FACTS
¶3       The State charged defendant with attempted first degree murder (720 ILCS 5/8-4(a),
     9-1(a)(1) (West 2012)) and aggravated battery (id. § 12-3.05(e)(1)), alleging defendant shot
     Jeremy Wade in the face, causing great bodily harm. The State also charged defendant with
     home invasion (id. § 19-6(a)(2)) and residential burglary (id. § 19-3(a)). The circuit court
     granted defendant’s motion to sever the charges.

¶4                                       I. Home Invasion Trial
¶5       A jury trial on the home invasion charge commenced on March 3, 2015. Virginia
     Sommerville testified that she lived alone at 1601 West Jackson Street, in Ottawa, on August 9,
     2013. At the time of the incident, she was 93 years old. Virginia testified that at some point in
     the middle of the night, someone tied her up and “went through” her belongings. She was later
     able to untie herself and call 911. A diamond ring was all Virginia recalled being removed
     from the house. Photographs of Virginia taken that night show bruising on her hands and arms,
     as well as duct tape hanging from her head.
¶6       Patrick Hardy of the Ottawa Police Department was the first officer to arrive at the scene.
     Hardy observed that Virginia was in a nightgown and had duct tape in her hair. She was
     holding a black zip tie. Hardy testified that the house was in disarray. He noticed ropes tied to
     Virginia’s bedposts, as well as an open window with closed blinds. The open window was on
     the west side of the home, facing Thornton Park. Hardy noticed footprints outside the window.
¶7       Wade testified that he was friends with Justin Sommerville, Virginia’s grandson. Wade
     noticed that Justin frequently had large amounts of cash and later learned he was receiving it
     from Virginia. Wade testified that “Merch” had also noticed this. “Merch” was one of
     defendant’s sobriquets. Approximately a week prior to the incident, Wade told defendant that
     Justin was receiving the money from Virginia.
¶8       The night before the incident, defendant asked Wade about the money. Defendant asked if
     there was any more money in Virginia’s house. He also asked if Virginia lived alone. Wade
     testified that he, defendant, and Jimmy Members were present for that conversation. The next
     day, Wade, defendant, and Members drove to Joliet. In Joliet, defendant bought a number of
     wigs from a wig store. Later, the three men went to Walmart and purchased dark clothing, a pry
     bar, a book bag, rope, duct tape, rubbing alcohol, zip ties, and lighter fluid. Wade testified that
     defendant led the other men through the store. Defendant provided the money for the
     purchases. Surveillance footage from Walmart was played in court, and Wade identified
     himself, defendant, and Members in the video.



                                                  -2-
¶9         The group then went to the apartment of April Capsel, in Wedron. There they waited for
       Britney Dorsam to arrive. Wade testified of Dorsam: “She drove [defendant] around a lot, and
       she stayed with [defendant].” Defendant instructed Dorsam to download a police scanner or
       radar application onto her cell phone. Wade installed the application, which would notify
       Dorsam when there were police in her vicinity. Defendant and Members later went to an area
       near Virginia’s house, for what Wade assumed was surveillance purposes. The entire group
       reconvened at Capsel’s apartment afterward.
¶ 10       Later that night, defendant instructed Wade to put on his dark clothing. Wade, defendant,
       and Members gathered the items they had purchased from Walmart. Dorsam drove them to
       Thornton Park, which was adjacent to Virginia’s house. Wade testified that he, defendant, and
       Members exited the car, ran through the park, and approached Virginia’s house.
¶ 11       Wade helped defendant enter the house through an unlocked window. Defendant ran to the
       front door and let Members in the house. Wade testified that he heard Virginia “in there like
       yelping for a minute or so.” He saw Members ransacking the house. Wade testified that he did
       not enter the house because he believed Virginia would recognize him. Members threw some
       bags out of the open window, and Wade collected them. Defendant and Members then exited
       the house through the front door. The three men ran back through the park where Dorsam
       picked them up. Dorsam drove them back to Capsel’s apartment. Wade estimated that
       defendant and Members were inside Virginia’s house for approximately 45 minutes to an hour.
¶ 12       At the apartment, Wade asked defendant if Wade “was going to get something out of it.”
       Defendant gave Wade a ring. After defendant and Members left the apartment, Wade gave the
       ring to Capsel in exchange for drugs and as rent payment.
¶ 13       Dorsam testified that she was living with defendant during the events in question. Her
       testimony generally corroborated the testimony provided by Wade regarding the events taking
       place before and after the incident. She also testified that she and defendant left Capsel’s
       apartment together after the incident. On the way home, she pulled over and defendant used
       lighter fluid to burn the dark clothing worn during the incident.
¶ 14       Ottawa police corporal Kyle Booras testified that on August 15, 2013, Capsel came to the
       Ottawa Police Department for reasons unrelated to the incident in question. While speaking to
       Capsel, Corporal Booras noticed she was wearing a ring similar to one that had been reported
       stolen from Virginia’s house. After asking Capsel about the ring, Booras retrieved the ring and
       stored it in evidence. Virginia later identified the ring as the one that had been stolen from her
       house.
¶ 15       Forensic scientist Jaime Bartolotta performed DNA testing on the black zip tie recovered
       from Virginia’s house. The DNA from the zip tie was a mixture of profiles from two different
       individuals. She concluded defendant could not be excluded from that DNA mixture.
       Approximately one in five billion black individuals could not be excluded.
¶ 16       On March 6, 2015, the jury found defendant guilty of home invasion and residential
       burglary. It also found he had committed the home invasion against a person 60 years of age or
       older.

¶ 17                           II. Attempted First Degree Murder Trial
¶ 18       On April 23, 2015, defendant indicated he wished to proceed via bench trial on the
       attempted first degree murder charge and filed a jury waiver. Judge Cynthia Raccuglia, who


                                                   -3-
       had presided over defendant’s jury trial, indicated that by waiving his right to a jury trial
       defendant was agreeing to a bench trial in front of her. Defendant agreed, and the court
       accepted his waiver.
¶ 19        The same day, the circuit court addressed a motion to include evidence of other crimes
       filed by the State. The State requested it be allowed to introduce evidence of the home invasion
       in trying defendant for the subsequent attempted murder of Wade. The court responded:
                   “THE COURT: The issue we have here is I’m obviously well aware of everything.
                   [THE STATE]: Right.
                   THE COURT: And I’m going to be the finder of fact.
                   [THE STATE]: Right.
                   THE COURT: And the question is what I’m to consider in making my decision.
               I’m clearly able to—there’s no question after all these years I’m clearly able not to
               consider relevant what I shouldn’t consider relevant ***.”
       Defense counsel argued that while the home invasion evidence would go to motive, motive
       was not an element the State was obligated to prove. He argued the evidence was highly
       prejudicial. The court ultimately granted the State’s motion, commenting: “Now, with a jury,
       sure. They don’t understand the law, and motive to them may mean he did it, but this Court
       knows the law and *** we all have motive to want to do harm to people that do wrong to us.
       That doesn’t mean that we’re there and we kill them ***.”
¶ 20        Defendant’s bench trial commenced on May 5, 2015. The first 30 pages of Wade’s trial
       testimony consisted of his detailing the planning and execution of the home invasion. This
       testimony was largely identical to his testimony at defendant’s home invasion trial. The State
       once again played the surveillance footage from the Joliet Walmart. Two Ottawa police
       officers also testified solely regarding the details of the home invasion.
¶ 21        Wade testified that he was taken into custody following a drug raid at Capsel’s apartment
       on August 15, 2013. He was questioned about the home invasion but did not cooperate and was
       eventually released. Immediately after Wade’s release, defendant contacted him wanting to
       know what Wade disclosed to the police. The two men arranged to meet at Jane’s Pub, but
       when Wade arrived at that location, only Dorsam was present. Dorsam checked Wade for a
       wire, then arranged for Wade and defendant to speak on the phone. Wade told defendant the
       police did not know anything about the home invasion.
¶ 22        On the evening of August 18, 2013, Wade was with his friend, Bobby Harden. At
       approximately 8 p.m., Harden received a phone call and told Wade defendant wanted to speak
       with him. Wade spoke with defendant, who again asked Wade about his interaction with the
       police three days earlier. Wade told him for the first time that the police had shown him a
       photograph of Members. Wade testified that defendant “kind of freaked out and called an F’ing
       idiot.” Harden took the phone back from Wade. After Harden apparently spoke to defendant on
       the phone, Harden told Wade that defendant wanted to meet to talk.
¶ 23        Wade testified that he and Harden remained in Harden’s truck, waiting for defendant.
       When a red car passed them, they followed it. Wade testified that the red car led them to the
       Streator area. Wade noticed there were two people in the car, defendant and Dorsam. Both
       vehicles stopped on a bridge, and Wade and defendant each alighted from their respective
       vehicles. Wade observed a rubber glove on defendant’s hand. Defendant instructed Wade to
       stand against the railing and then told Harden to leave. At defendant’s direction, Wade took his

                                                  -4-
       shirt off so defendant could check for a wire. Defendant had a plastic bag around his other hand
       and was holding a firearm in it. He told Wade to open his mouth. Wade testified: “I refused to
       open my mouth, and he kind of like grinned and giggled at me a little bit and said something
       about don’t cry.”
¶ 24       Wade recalled seeing a white flash. His next memory was of waking up in the water
       underneath the bridge. He had pain in his face and pelvis. He heard tires squealing and believed
       defendant had left. Wade thought his pelvis was broken and described his teeth as “dangling by
       threads of my gum line.” Wade walked to a house where he could see lights. He yelled for help.
       He entered the house and called 911. Wade testified that he eventually received surgery on his
       mouth and had his pelvis reset.
¶ 25       The State played two 911 calls made by Wade in court. 1 In the first call, Wade
       immediately tells the operator “I just got shot in the face.” When the operator asks where the
       firearm was, Wade replied, “he’s got it.” When the operator asked who had the firearm, Wade
       replied, “his name is Merch. *** He shot me in the face.” In the second 911 call, the operator
       asked Wade who shot him. Wade replied: “His nickname is Merch. M-E-R-C-H. *** He shot
       me on the bridge and I fell off the bridge in the water. I made my way to these guys’ house and
       they’re standing here with me.”
¶ 26       Carolee Robinson testified that she and her husband lived outside of Streator,
       approximately 200 yards from the Sandy Ford Bridge, adjacent to the Vermilion River. On
       August 18, 2013, Carolee was in the back room of her house when she heard “a real scary
       screaming man saying I’ve been shot in the face.” Carolee went downstairs to wake her
       husband, Wylie. When Carolee and Wylie returned to the back room, Wade was sitting in a
       chair using Carolee’s telephone. She noticed blood on Wade’s face and mouth. Carolee
       testified that Wade said: “Merch did it because I know something I’m not supposed to tell.”
¶ 27       Carolee also called 911, and the audio recording of that call was played in court. During the
       call, Carolee told the operator that Wade said someone had shot him. She relayed that Wade
       was shot in the face by the bridge. The operator asked Carolee to ask Wade to provide a
       description of who shot him. After asking Wade those questions in the background, Carolee
       said to the operator: “He’s driving a red car and he’s black.”
¶ 28       Wylie testified that Wade could not talk very well because “his mouth or his teeth were
       shattered.” Wade was on the telephone with a 911 operator but was becoming frustrated when
       the operator could not understand what he was saying. Wylie testified: “The only thing that he
       really said to me was Merch did it.”
¶ 29       Randy Railey of the La Salle County Sheriff’s Office was the first person to arrive at the
       Robinsons’ house. Railey observed a bullet hole through Wade’s upper lip. Wade was also
       shirtless and complaining of pain in his hip. Wade told Railey that Merch had shot him and
       Merch was “trying to eliminate him.” Wade told Railey that Merch had been driven to the
       bridge by Dorsam, pulled a firearm out of a bag, and shot him in the face.
¶ 30       Dorsam testified to the events surrounding the home invasion, similar to the testimony she
       had provided at the previous trial. She testified that she learned from defendant that Capsel’s
       apartment had been raided. Defendant instructed her to meet with Wade, check him for wires,



          1
           Wade explained that he called 911 a second time after he hung up on the first call.

                                                     -5-
       and arrange a phone call. The conversation between defendant and Wade was held via
       speakerphone; Dorsam heard defendant asking Wade questions about the home invasion.
¶ 31       Dorsam testified that on the evening of August 18, 2013, defendant instructed her to drive
       him to the Sandman Motel in Peru. Defendant went into the motel for approximately 10
       minutes, then returned to the car carrying a backpack. Dorsam then drove defendant around
       until they saw a truck belonging to Harden. Harden’s truck began to follow them, at which
       point defendant instructed Dorsam to drive to the Sandy Ford Bridge.
¶ 32       Dorsam stopped on the bridge and Harden parked his truck next to the car. Dorsam testified
       that she saw defendant tape a plastic bag to his hand. Defendant and Wade walked 50 to 75 feet
       behind the car. Dorsam then heard a loud popping sound and a splash. Defendant returned to
       the car and ordered Dorsam to drive away. Defendant later told her to pull over, at which point
       he used lighter fluid to burn the clothes he was wearing, as well as the backpack. Harden also
       testified, corroborating the testimony provided by Wade and Dorsam.
¶ 33       Defendant denied shooting Wade. He speculated that Wade and Dorsam were accusing
       him of the shooting to secure favorable deals from the State. On cross and redirect
       examination, defendant denied any involvement in the home invasion.
¶ 34       The circuit court found defendant guilty of attempted murder and aggravated battery. The
       court also found defendant’s actions were the proximate cause of great bodily harm.
¶ 35       A presentence investigation report showed defendant had six prior felony convictions.
       These included multiple convictions for aggravated battery and one for disarming a peace
       officer. In a letter written to the court, defendant maintained his innocence for home invasion
       and attempted first degree murder. In his statement of allocution, defendant referred to the
       proceedings as a “modern-day lynching, castration, beheading in relation to due process of
       law.” He blamed the unfair proceedings on “shape-shifting humanoids,” Satan, “energy
       vampires among the political elite,” and “the Children of the Greys.”
¶ 36       The circuit court noted defendant had no remorse and found he was a danger to the public.
       The court sentenced defendant to a term of 45 years’ imprisonment for home invasion. For
       attempted first degree murder, the court sentenced defendant to a concurrent term of 30 years’
       imprisonment. The court added a firearm enhancement of natural life in prison to the attempted
       murder sentence. The court ordered that the findings of guilt on residential burglary and
       aggravated battery would merge with the convictions for home invasion and attempted murder,
       respectively.

¶ 37                                          ANALYSIS
¶ 38       On appeal, defendant argues that (1) an excessive amount of evidence of the home invasion
       was introduced at his attempted murder trial, (2) the mandatory 25-years-to-life firearm
       enhancement is unconstitutionally vague, (3) the sentences imposed by the circuit court were
       excessive, and (4) the mittimus should be amended to reflect the merging of charges at
       sentencing. We address each argument in turn.

¶ 39                                    I. Other-Crimes Evidence
¶ 40       Defendant first contends that an excessive amount of other-crimes evidence was
       introduced at his attempted first degree murder bench trial. Specifically, he maintains that the
       evidence regarding the home invasion created a home invasion trial within the attempted

                                                  -6-
       murder trial. While defendant concedes that evidence of the home invasion was generally
       admissible to prove his motive for shooting Wade, he argues the amount and detail of that
       evidence rendered his trial unfair.
¶ 41        All relevant evidence is admissible unless its probative value is substantially outweighed
       by the danger of unfair prejudice. Ill. Rs. Evid. 402, 403 (eff. Jan. 1, 2011). The probative value
       of a piece of evidence refers to its tendency to prove or disprove that a defendant committed
       the charged offense. See People v. Maya, 2017 IL App (3d) 150079, ¶ 68. Unfair or undue
       prejudice “speaks to the capacity of some concededly relevant evidence to lure the factfinder
       into declaring guilt on a ground different from proof specific to the offense charged.” Old
       Chief v. United States, 519 U.S. 172, 180 (1997).
¶ 42        Evidence of other crimes, wrongs, or bad acts is not admissible for the purpose of
       demonstrating a defendant’s propensity to commit a crime. Ill. R. Evid. 404(b) (eff. Jan. 1,
       2011); People v. Donoho, 204 Ill. 2d 159, 170 (2003). Such evidence is generally inadmissible
       because it carries an extreme risk of prejudice in that it can lead to “the jury convicting a
       defendant because he or she is a bad person deserving punishment.” Donoho, 204 Ill. 2d at
       170; see also People v. Lindgren, 79 Ill. 2d 129, 137 (1980) (noting that other-crimes evidence
       tends to “overpersuade[ ] the jury, which might convict the defendant only because it feels he
       or she is a bad person deserving punishment”). As the United States Supreme Court has
       explained: “The inquiry is not rejected because character is irrelevant; on the contrary, it is said
       to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad
       general record and deny him a fair opportunity to defend against a particular charge.”
       Michelson v. United States, 335 U.S. 469, 475-76 (1948).
¶ 43        Other-crimes evidence is admissible, however, for other purposes, “such as proof of
       motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
       accident.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). When introduced for such purposes,
       other-crimes evidence is directly probative of a defendant’s guilt of the charged offense, rather
       than merely his character. Still, while the evidence can be admissible, it remains subject to the
       overarching rule that its probative value must not be substantially outweighed by the risk of
       undue prejudice. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Robinson, 167 Ill. 2d 53, 63
       (1995) (“Even where relevant for a permissible purpose, the trial judge must weigh the
       prejudicial effect of admitting the other-crimes evidence against its probative value.”).
¶ 44        In addressing the danger of undue prejudice in the context of otherwise admissible
       other-crimes evidence, courts have consistently found that the amount and accumulation of
       such evidence will increase that danger. As this court has explained: “as the probative value of
       each subsequent piece of cumulative evidence diminishes, the prejudicial effect, if there is any,
       remains the same, increasing the chances that the danger of undue prejudice will come to
       outweigh the probative value.” Maya, 2017 IL App (3d) 150079, ¶ 70. Thus, reviewing courts
       have instructed that “[w]hen weighing the prejudicial effect of admission, a court should
       consider whether the other-crimes evidence will become the focus of the trial, or whether it
       might otherwise be misleading or confusing to the jury.” People v. Perez, 2012 IL App (2d)
       100865, ¶ 47. Further, “[c]ourts have warned against the dangers of putting on a ‘trial within a
       trial,’ with detail and repetition greatly exceeding what is necessary to establish the particular
       purpose for the evidence.” People v. Boyd, 366 Ill. App. 3d 84, 94 (2006) (quoting People v.
       Bartall, 98 Ill. 2d 294, 315 (1983)).


                                                    -7-
¶ 45       In the present case, the evidence defendant committed the home invasion with Wade was
       unquestionably probative of defendant’s motive and intent to shoot Wade. Indeed, defendant
       concedes on appeal the evidence was generally admissible for purposes other than propensity.
       We therefore must only consider whether the amount and detailed nature of that home invasion
       evidence was such that the danger of unfair or undue prejudice substantially outweighed its
       probative value.
¶ 46       Initially, we note the evidence of defendant’s commission of the home invasion had
       significant probative value. It demonstrated a clear motive for defendant to attempt to murder
       Wade, out of fear that his accomplice would implicate him in the home invasion. Moreover, it
       demonstrated defendant’s intent to kill Wade, an element the State was burdened with proving
       beyond a reasonable doubt. See 720 ILCS 5/8-4(a), 9-1(a)(1) (West 2012). We also note the
       evidence presented by the State regarding the home invasion was highly detailed, featuring the
       testimony of Wade and Dorsam, testimony from authorities who investigated that offense, and
       video evidence. In short, the evidence was akin to what one would expect to see in an actual
       home invasion trial.
¶ 47       The risk of undue prejudice normally accompanying the admission of large amounts of
       other-crimes evidence is significantly diminished where the trier of fact is not a jury but a
       judge. See People v. Nash, 2013 IL App (1st) 113366, ¶ 24. The prejudicial effect of
       other-crimes evidence is almost exclusively discussed in terms of impact on a jury. See
       Michelson, 335 U.S. at 475-76; Donoho, 204 Ill. 2d at 170; Lindgren, 79 Ill. 2d at 137.
       Relatedly, the concern of an overaccumulation of admissible other-crimes evidence is it could
       lead to confusing or misleading the jury. Perez, 2012 IL App (2d) 100865, ¶ 47.
¶ 48       Unlike a jury, a trial judge is presumed to know the law and to apply it correctly. People v.
       Phillips, 392 Ill. App. 3d 243, 265 (2009). In this context then, it is presumed the trial judge
       considered the evidence of other crimes only for its proper, limited purpose. People v.
       Deenadayalu, 331 Ill. App. 3d 442, 450 (2002). The law thus presumes that a judge, unlike a
       jury, is not likely to find a defendant guilty simply because he or she is a bad person deserving
       punishment. See Donoho, 204 Ill. 2d at 170. Similarly, the admission of large or detailed
       amounts of other-crimes evidence that is properly admissible is not likely to mislead or
       confuse a trial judge. The law presumes that that evidence is not likely to “lure the [judge] into
       declaring guilt on a ground different from proof specific to the offense charged.” Old Chief,
       519 U.S. at 180.
¶ 49       The logic surrounding a rebuttable presumption that the trial judge knows and correctly
       applies the law is demonstrated by this case.2 When ruling on the State’s motion to introduce
       evidence of other crimes, the trial judge correctly noted the law holding that the consideration
       of other crimes evidence for improper purposes by a jury is a great concern. After recognizing
       this legal proposition, the judge commented that she, however, was “clearly able not to

           2
             Defendant argues that where the circuit court explicitly allows a motion to admit certain evidence,
       it must also be presumed to have considered that evidence. While defendant is surely correct, it is
       irrelevant to the case before us. As discussed above, the evidence in question was admissible for the
       purposes of proving motive and intent. The circuit court was correct in considering that evidence in
       reaching its decision. Thus, while the court’s act of admitting the evidence indicates that it considered
       that evidence, there is no indication on the record that the evidence was considered for an improper
       purpose.

                                                       -8-
       consider relevant what I shouldn’t consider relevant.” She also explicitly stated that evidence
       of motive is not directly evidence of guilt.
¶ 50        Moreover, it is relevant that the trial judge in defendant’s attempted murder bench trial also
       presided over his home invasion jury trial. This judge, of course, had already heard all of the
       State’s evidence relating to the home invasion. We would be remiss if we did not point out that,
       optimally, the State would have tried defendant for attempted murder before a different judge.
       Practically speaking, this would not have been a burdensome course, as there was surely not a
       shortage of available judges in La Salle County. Nevertheless, defendant chose to proceed with
       a bench trial, even knowing the bench trial would be before the same judge. There was no
       motion for substitution, and defendant does not raise any contentions of error on appeal
       relating to these circumstances.
¶ 51        Defendant apparently accepted the judge’s ability to consider the home invasion evidence
       only for its proper purpose heading into the attempted murder trial. His argument on appeal,
       essentially, is that the judge’s hearing that evidence for a second time created an unacceptable
       risk of undue prejudice. This position strains credulity. If anything, the trial judge’s prior
       knowledge of the home invasion evidence would serve to soften the impact of that evidence the
       second time around.
¶ 52        Finally, the evidence of defendant’s guilt was overwhelming. Clear and consistent
       first-hand testimony from Wade, Dorsam, and Harden established that defendant shot Wade.
       Moreover, in the immediate aftermath of the shooting, Wade told Carolee, Wylie, Railey, and
       911 operators that it was defendant who had shot him. Given this evidence, it is highly unlikely
       the result would have been different absent the introduction of other-crimes evidence. The flip
       side of that coin, however, is there was absolutely no need for the State to introduce such
       detailed evidence regarding the home invasion. Defendant’s motive for shooting Wade could
       have simply been established by a brief summary of the earlier events from Wade himself.
       Indeed, defendant would have been found guilty even if the State had produced no evidence of
       motive. While we do not find reversible error on the facts of this case, this should not be read as
       a general endorsement of the introduction of the massive amount of other-crimes evidence.
¶ 53        While the evidence of defendant’s home invasion was of clear probative value at his
       attempted murder trial, that probative value continued to diminish as further detailed evidence
       of the home invasion was introduced. However, the risk of unfair or undue prejudice attendant
       to that evidence was low where the finder of fact was a judge rather than a jury and a judge who
       was already aware of the home invasion evidence. Accordingly, the probative value of the
       evidence was not substantially outweighed by the risk of unfair prejudice, and the circuit court
       did not err in admitting that evidence.

¶ 54                                           II. Vagueness
¶ 55      Section 8-4(c)(1)(D) of the Criminal Code of 2012 (Code) (720 ILCS 5/8-4(c)(1)(D) (West
       2012)) sets forth a sentence enhancement for a defendant who discharges a firearm in
       committing attempted first degree murder. The statute provides:
              “an attempt to commit first degree murder during which the person personally
              discharged a firearm that proximately caused great bodily harm, permanent disability,
              permanent disfigurement, or death to another person is a Class X felony for which 25
              years or up to a term of natural life shall be added to the term of imprisonment imposed
              by the court.” Id.

                                                    -9-
       On appeal, defendant argues the statute is unconstitutionally vague because it provides the
       sentencing court with vast discretion to impose a sentence within a broad range of penalties
       without providing any factors or criteria that would guide that exercise of discretion. The State,
       on the other hand, urges that this court follow the rationale set forth in People v. Butler, 2013
       IL App (1st) 120923, where the First District found an identical firearm enhancement for first
       degree murder was not vague.
¶ 56        The United States Constitution provides that “[n]o person shall *** be deprived of life,
       liberty, or property, without due process of law.” U.S. Const., amend. V. The State violates the
       due process clause when it deprives a person of their liberty based on a sentencing statute “so
       standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. ___,
       ___, 135 S. Ct. 2551, 2556 (2015). “A statute is unconstitutionally vague if the terms are so
       ill-defined that the ultimate decision as to its meaning rests on the opinions and whims of the
       trier of fact rather than any objective criteria or facts.” People v. Pembrock, 62 Ill. 2d 317, 322
       (1976).
¶ 57        If reasonably possible, a statute must be construed to be constitutional. People v. Greco,
       204 Ill. 2d 400, 406 (2003). In the context of a vagueness challenge, a court will apply a
       two-pronged test. Due process is satisfied where:
                “(1) the statute’s prohibitions are sufficiently definite, when measured by common
                understanding and practices, to give a person of ordinary intelligence fair warning as to
                what conduct is prohibited, and (2) the statute provides sufficiently definite standards
                for law enforcement officers and triers of fact that its application does not depend
                merely on their private conceptions.” Id. at 416.
       Defendant challenges only the second prong, conceding that the standards for imposition of the
       enhancement, as well as the scope of permissible sentences are clearly defined. Instead,
       defendant argues that the enhancement statute allows a sentencing court to impose the most
       severe sentence under Illinois law without providing any sufficiently definite standards
       guiding the court’s discretion.
¶ 58        In Butler, the court addressed a vagueness challenge to section 5-8-1(a)(1)(d)(iii) of the
       Unified Code of Corrections (Unified Code). See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012).
       That statute is identical to the enhancement statute in question in that it mandates an
       enhancement of 25-years-to-natural-life imprisonment where the defendant’s discharge of a
       firearm proximately causes “great bodily harm, permanent disability, permanent
       disfigurement, or death to another person.” Id. That statute, however, applies to the
       commission of first degree murder, rather than attempted first degree murder. Id.
¶ 59        The Butler court conceded “that the 25-years-to-life sentence enhancement lacks detailed
       instruction as to where a trial court’s sentence should fall within the broad range of the statute.”
       Butler, 2013 IL App (1st) 120923, ¶ 42. However, the Butler court held that the statute was not
       vague after being persuaded the “sliding scale” of injuries triggering the statute also
       correspond to the severity of the enhancement. Id. ¶¶ 37, 41. Specifically, the Butler court
       concluded:
                “Depending on the injury caused by the firearm used by the defendant, the trial court
                has discretion to impose a sentence in the range of 25-years-to-life. This allows the trial
                court to engage in fact-based determinations based on the unique circumstances of each
                case. The wide range of the sentence enhancement is appropriate because it is
                impossible to predict every type of situation that may fall under the purview of the

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               statute. By defining the types of injuries that trigger the sentence enhancement, the
               legislature has provided the trier of fact with guidelines to apply when determining
               what sentence to impose within the boundaries of the statute.” Id. ¶ 41.
¶ 60       We agree with the reasoning set forth by the court in Butler and believe it to be applicable
       to section 8-4(c)(1)(D). By tying the 25-years-to-life enhancement to the nature of the injuries
       caused, the legislature made clear its intent that the length of the enhancement should be based
       upon those injuries. In our view, the “sliding scale” referenced by the Butler court does not
       represent a rigid formula for imposing an enhanced 25-years-to-life sentence that directly
       corresponds to great bodily harm, permanent disability, permanent disfigurement, or death.
¶ 61       Rather, Butler stands for the proposition that, once invoked, the statute provides a clearly
       defined scope and standard for the circuit court to exercise its discretion in considering the
       unique circumstances of each particular case, making fact-based determinations, and imposing
       a mandatory sentence enhancement based upon the injuries proximately caused by the
       defendant. See id. For our purposes, this approach reflects how “great bodily harm” occurs in
       various degrees. E.g., People v. Arbuckle, 2016 IL App (3d) 121014-B, ¶ 42 (“Great bodily
       harm, on the other hand, can certainly exist in varying degrees. There is great bodily harm and
       then there is great bodily harm.”). We are of the opinion that this discretionary approach is
       consistent with the process that the trial courts of this state are accustomed to employing when
       imposing sentences.
¶ 62       Defendant is correct that section 8-4(c)(1)(D) of the Code does not explicitly instruct the
       circuit court to consider the nature of the victim’s injury when crafting the enhanced sentence.
       However, to avoid being vague, a statute must include “sufficiently definite standards,” not
       explicit instructions. Here, the statute states that injuries of a certain type—great bodily harm,
       permanent disability, permanent disfigurement, or death—shall trigger the enhancement. We
       believe, as did the court in Butler, the extent or degree of the enhancement turns on the extent
       or degree of the injuries in each case, thereby indicating a “sufficiently definite” standard. This
       view is consistent with our duty to construe a statute as constitutional wherever reasonably
       possible. Greco, 204 Ill. 2d at 406. Thus, we find section 8-4(c)(1)(D) of the Code is not
       unconstitutionally vague. The standard set forth therein is no more arbitrary, ill-conceived,
       whimsical, or based on private conceptions than any other discretionary sentencing statute.
¶ 63       In reaching this conclusion, we also reject defendant’s contention that our construction of
       the enhancement runs afoul of the general bar on double-enhancements. Our supreme court has
       made clear that the so-called rule barring double enhancements is actually a tenet of statutory
       construction “based on the assumption that, in designating the appropriate range of punishment
       for a criminal offense, the legislature necessarily considered the factors inherent in the
       offense.” People v. Phelps, 211 Ill. 2d 1, 12 (2004). As a result, “where the legislature clearly
       intends to enhance the penalty based upon some aspect of the crime, and such an intention is
       clearly expressed, there is no prohibition.” Id. at 15. In this case, of course, the double
       enhancement is not in the nature of a factor inherent in the offense but in the double counting of
       a single aggravating factor. See, e.g., People v. Del Percio, 105 Ill. 2d 372, 376-78 (1985).
       Defendant’s contention is that a single factor, the degree of great bodily harm, should not be
       used as a basis for the base sentence for attempted murder and again as a basis for the firearm
       enhancement.
¶ 64       We reject defendant’s argument because the legislature has expressed an intent for those
       same factors to enhance sentences for both the base crime of attempted murder and the

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       enhancement found in section 8-4(c)(1)(D). Namely, our supreme court determined it was the
       serious problem of firearm use that prompted the legislature to impose sentencing
       enhancements of 25-years-to-life for discharging a firearm during a serious felony, causing
       great harm. People v. Sharpe, 216 Ill. 2d 481, 531 (2005). “The legislature clearly spelled out
       its intent in enacting the firearm enhancements in a codified statement of legislative intent,”
       where public health, safety, and welfare caused by firearms during felony offenses are cited as
       justification. Id. (citing 720 ILCS 5/33A-1(a), (b) (West 2000)).
¶ 65        Based on this intent, the legislature enacted section 8-4(c)(1)(D), despite the continuing
       effectiveness of section 5-5-3.2(a)(1) of the Unified Code, which mandates that courts
       consider the infliction of serious harm in fashioning a sentence. See 730 ILCS 5/5-5-3.2(a)(1)
       (West 2012)). It is not our function to overrule the legislature where double enhancement
       based upon the same aggravating factors has been deemed appropriate. Sharpe, 216 Ill. 2d at
       530; see also Butler, 2013 IL App (1st) 120923, ¶ 43.

¶ 66                                      III. Excessive Sentence
¶ 67       Next, defendant argues his consecutive sentences of 45 years’ imprisonment for home
       invasion and natural life imprisonment for attempted first degree murder were excessive. He
       does not contend the circuit court improperly considered any factor in aggravation nor does he
       argue the court failed to consider a certain factor in mitigation. His argument, more simply, is
       that the sentences imposed were not proportional to the seriousness of the offenses when the
       factors inherent in those offenses is considered.
¶ 68       The circuit court has broad discretion in imposing a sentence, and a reviewing court will
       give great deference to that judgment. People v. Alexander, 239 Ill. 2d 205, 212-13 (2010). A
       sentence within the prescribed statutory range will not be disturbed on appeal absent an abuse
       of discretion. Id. at 212. Similarly, it is inappropriate for a reviewing court to reweigh the
       factors involved in a sentencing decision. Id. at 214. A sentence will be deemed an abuse of
       discretion where the sentence is “greatly at variance with the spirit and purpose of the law, or
       manifestly disproportionate to the nature of the offense.” People v. Stacey, 193 Ill. 2d 203, 210
       (2000).
¶ 69       Home invasion is a Class X felony subject to a sentencing range between 6 and 30 years’
       imprisonment. 720 ILCS 5/19-6(a)(2) (West 2012); 730 ILCS 5/5-4.5-25(a) (West 2012).
       However, because the victim of the home invasion was over 60 years of age, defendant was
       eligible for an extended-term Class X sentence of between 30 and 60 years’ imprisonment. 730
       ILCS 5/5-5-3.2(b)(3)(ii), 5-4.5-25(a) (West 2012).
¶ 70       Defendant insists the home invasion committed by defendant “is essentially no worse than
       that which is inherent in the offense of home invasion.” Yet Virginia Sommerville was 93
       years old when defendant invaded her home. Our legislature has determined that offenses
       committed against elderly persons are subject to harsher punishment. Id. § 5-4.5-25(a). The
       circuit court was plainly within its discretion to sentence defendant in the extended range.
¶ 71       It is true defendant’s commission of home invasion did not involve any harm beyond that
       inherent in the offense. However, defendant did have six prior felony convictions on his
       record, including multiple convictions for aggravated battery. Given defendant’s record and
       the victim’s extremely advanced age, a sentence at the precise midpoint of the extended range
       (45 years) cannot be deemed manifestly disproportionate to the nature of the offense.


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¶ 72       Attempted first degree murder is a Class X felony subject to a sentencing range between 6
       and 30 years’ imprisonment. 720 ILCS 5/8-4(c)(1) (West 2012); 730 ILCS 5/5-4.5-25(a)
       (West 2012). Moreover, as discussed above, defendant was subject to an enhancement of 25
       years to natural life because he caused great bodily harm to Wade through the personal
       discharge of a firearm. 720 ILCS 5/8-4(c)(1)(D) (West 2012).
¶ 73       Defendant again argues that “[t]he great bulk of [defendant]’s conduct was inherent in the
       offense.” This argument, however, ignores the factors in aggravation. Most notably, defendant
       shot Wade in the face in a calculated attempt to prevent Wade from implicating him in the
       home invasion. Defendant was attempting to murder a potential witness against him.
       Moreover, Wade’s testimony that defendant “grinned and giggled” at him and told him not to
       cry before shooting him in the face, indicated particularly wanton cruelty. In addition to those
       facts and defendant’s moderate criminal record, defendant showed no remorse at sentencing,
       instead using his allocution to deliver a diatribe on the purported unfairness of the proceedings.
       While defendant urges us to consider that “Wade was not shot repeatedly or tortured” and he
       had previously been extremely polite in court before he “los[t] his composure” at sentencing, it
       is not this court’s role to reweigh the sentencing factors. Defendant’s base sentence for
       attempted first degree murder (30 years) was not manifestly disproportionate to the nature of
       the offense.
¶ 74       We also find the sentencing enhancement of natural life in prison is not excessive given the
       grievous nature of Wade’s injuries. See supra ¶¶ 60-61. Wade did not suffer from an ordinary
       gunshot wound in this case; rather, he was shot at close range in his face. The damage was not
       even limited to the gunshot wound, as defendant’s act of discharging the firearm also caused
       additional injuries when Wade fell from the bridge.
¶ 75       This conclusion is bolstered by a commonsense assessment of the sentencing enhancement
       in this case, which demonstrates the minimal impact it had on defendant’s ultimate aggregate
       sentence. Defendant’s consecutive base sentences for home invasion and attempted murder
       result in 75 years of imprisonment. Even if defendant were to receive the maximum allowable
       good-time credit of 4.5 days for each month served (730 ILCS 5/3-6-3(a)(2)(ii)-(iii) (West
       2014)), defendant would be obligated to serve 65 years in prison. Defendant would be 98 years
       old when his base sentences expired. Even the minimum firearm enhancement would result in
       defendant being imprisoned—again assuming maximum good-time credit—until he was 120
       years old. In this factual context, the actual difference between the minimum firearm
       enhancement (25 years) and the maximum (natural life) is insignificant.
¶ 76       Accordingly, we affirm defendant’s base sentences of 45 years’ imprisonment for home
       invasion and 30 years’ imprisonment for attempted first degree murder enhanced to natural life
       imprisonment.

¶ 77                                     IV. Amendment of Mittimus
¶ 78       Finally, defendant argues that his mittimus must be amended to reflect the merger of his
       residential burglary and aggravated battery charges.
¶ 79       At sentencing, the court explicitly stated that those charges would merge with defendant’s
       convictions for home invasion and attempted first degree murder. While the written sentencing
       order lists all four charges, it only lists sentences next to home invasion and attempted murder.
       Adjacent to both residential burglary and aggravated battery, the sentencing order states
       “[s]entence merges.” The order, however, does list terms of mandatory supervised release

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       (MSR) for the merged counts, terms of three years and two years of MSR for aggravated
       battery and residential burglary, respectively.
¶ 80       The Illinois Department of Corrections (DOC) website, of which this court may take
       judicial notice, shows defendant as presently serving four sentences. The website indicates
       defendant is serving a term of three years’ imprisonment for aggravated battery and two years’
       imprisonment for residential burglary. We surmise the DOC has interpreted the MSR terms
       found on the sentencing order as convictions with attendant sentences. We therefore remand
       the matter to the circuit court with instructions that it issue an amended mittimus making clear
       that defendant has not been convicted of aggravated battery or residential burglary.

¶ 81                                      CONCLUSION
¶ 82       The judgment of the circuit court of La Salle County is affirmed with respect to
       defendant’s convictions and sentences. However, we remand with directions that the circuit
       court issue an amended mittimus.

¶ 83      Affirmed.
¶ 84      Remanded with directions.

¶ 85        JUSTICE McDADE, concurring in part and dissenting in part:
¶ 86        I concur in the majority’s judgment with respect to sections I and IV of the lead opinion. I
       also concur in the result with respect to section III, as I would also find that defendant’s base
       sentences were not excessive. However, I would find that the section 8-4(c)(1)(D) firearm
       enhancement is unconstitutionally vague and would vacate defendant’s sentence enhancement
       of natural life in prison. For that reason, I respectfully dissent.
¶ 87        Section 8-4(c)(1)(D) of the Code provides a sentencing enhancement of between 25 years’
       imprisonment and natural life imprisonment. 720 ILCS 5/8-4(c)(1)(D) (West 2012). It states,
       explicitly, that such enhancement shall be applied to any person who, in an attempt to commit
       first degree murder, personally discharges a firearm and thereby causes “great bodily harm,
       permanent disability, permanent disfigurement, or death to another person.” Id.
¶ 88        While the enhancement statute clearly indicates when and to whom it applies, it does not
       explicitly provide any standards or criteria that might guide the sentencing court in fashioning
       a sentence within the broad range of 25 years to life. The enhancement statute is “so
       standardless that it invites arbitrary enforcement.” Johnson, 576 U.S. at ___, 135 S. Ct. at
       2556. Without definite standards guiding the sentencing court’s discretion, that court may
       sentence a defendant to a term of natural life imprisonment based solely on the judge’s whims
       and private conceptions. See Greco, 204 Ill. 2d at 416.
¶ 89        The majority, like the Butler court, assumes with no apparent justification that the sliding
       scale of injuries—great bodily harm, permanent disability, permanent disfigurement—used to
       trigger the enhancement, must also be used to fashion the enhancement. The enhancement
       statute itself provides no suggestion, either explicit or implicit, that those injuries are intended
       to guide the sentencing court’s discretion. Indeed, such a construction is one of purely judicial
       creation. Furthermore, the notion that this list of potential injuries is a “sliding scale” (Butler,
       2013 IL App (1st) 120923, ¶ 37) or spectrum of harms finds no support in case law or in
       common sense. “Permanent disfigurement” is not clearly more severe or more offensive than

                                                    - 14 -
       “permanent disability.” It is likewise unclear why “great bodily harm” should be considered
       inherently less severe than both of those. It does not rationally follow from the enhancement
       statute that a defendant who causes permanent disfigurement should be sentenced more
       severely than one who “merely” causes great bodily harm. While our supreme court has
       instructed that a statute should be construed as constitutional “[i]f reasonably possible”
       (Greco, 204 Ill. 2d at 406), such a strained interpretation of the enhancement statute here is
       simply not reasonable.
¶ 90       Further, the majority asserts that “[t]he standard set forth [in section 8-4(c)(1)(D)] is no
       more arbitrary, ill-conceived, whimsical, or based on private conceptions than any other
       discretionary sentencing statute.” Supra ¶ 62. But this is demonstrably false. In fact, the
       legislature has enacted statutes detailing numerous factors that a court should consider in
       crafting a sentence. 730 ILCS 5/5-5-3.2 (West 2012) (factors in aggravation); id. § 5-5-3.1
       (factors in mitigation). The nearly 40 sentencing factors enumerated in those two sections
       alone apply to every discretionary sentence and actually serve to illustrate the utter lack of
       guidance provided by section 8-4(c)(1)(D) of the Code.
¶ 91       In fact, the dearth of sentencing guidance found in section 8-4(c)(1)(D) increases the
       potential that a sentencing court would resort to those statutory lists of aggravating and
       mitigating factors in fashioning the enhancement. Presuming those factors were already
       considered when the court imposed the base sentence, such a tact would constitute an improper
       double enhancement. Sharpe, 216 Ill. 2d at 530. Of course, as the majority points out, a double
       enhancement is allowable where the legislature expressly provides for one. Thus, the
       legislature would be free to enact legislation dictating that the section 8-4(c)(1)(D)
       enhancement should be based upon the standard factors in aggravation and mitigation. Even
       the Butler court conceded that “confusion could be avoided if the legislature provided more
       explicit guidance regarding the imposition of the 25-years-to-life sentence enhancement.”
       Butler, 2013 IL App (1st) 120923, ¶ 42. Until such time as the legislature does take some step
       to clarify exactly what the enhancement should be based upon, however, section 8-4(c)(1)(D)
       is unconstitutionally vague.




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