                                         2015 IL App (3d) 121014

                                Opinion filed April 21, 2015
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2015

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 13th Judicial Circuit,
                                                      )       Bureau County, Illinois,
            Plaintiff-Appellee,                       )
                                                      )       Appeal No. 3-12-1014
            v.                                        )       Circuit No. 11-CF-37
                                                      )
     AARON M. ARBUCKLE,                               )       Honorable
                                                      )       Cornelius J. Hollerich,
            Defendant-Appellant.                      )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justice Wright concurred in the judgment and opinion.
            Justice Lytton specially concurred, with opinion.

                                                OPINION

¶1          Defendant, Aaron M. Arbuckle, was charged with aggravated domestic battery (720

     ILCS 5/12-3.3(a) (West 2010)) and aggravated battery (720 ILCS 5/12-4(b)(1) (West 2010)). At

     defendant's plea hearing, the court informed defendant that he was eligible for extended-term

     sentences on each count. Defendant did not object and did not later raise the issue in a

     postsentencing motion. The court sentenced defendant to consecutive terms of 5½ and 4 years'

     imprisonment on the two counts, respectively. Among the aggravating factors cited by the court

     was the degree of harm defendant inflicted upon the victims. Defendant appeals his sentence on

     the grounds that (1) the court erroneously found him extended-term eligible; (2) counsel was
     ineffective for failing to raise the issue of defendant's extended-term eligibility; (3) the court's

     consideration of the harm done to the victim constituted an improper double enhancement where

     "great bodily harm" was an element of the charged offense; and (4) the court failed to consider

     certain mitigating factors, resulting in an excessive sentence. We affirm.

¶2                                                  FACTS

¶3            On June 9, 2011, the State charged defendant with aggravated domestic battery (count I)

     (720 ILCS 5/12-3.3(a) (West 2010)) and aggravated battery (count II) (720 ILCS 5/12-4(b)(1)

     (West 2010)). With respect to count I, the State alleged in the aggravated domestic battery

     information that defendant struck his girlfriend, Kayla Zimmerlein, with a golf club, resulting in

     great bodily harm. On count II, the State alleged that defendant stabbed Nicole Reuter with a

     broken golf club.

¶4            Defendant entered an open guilty plea on September 22, 2011. While admonishing

     defendant, the court informed him that the maximum prison term for aggravated domestic

     battery, a Class 2 felony, would be 14 years' imprisonment. Defendant was eligible for an

     extended-term sentence due to a prior Class 2 conviction. He was also not eligible for probation.

     The court also informed defendant that he was extended-term eligible on the aggravated battery

     charge, a Class 3 felony: "The maximum prison sentence normally would be five years for a

     Class 3 felony. But because of the prior Class 2 conviction in 2005 in Lee County, you would be

     eligible for extended term ***. The maximum prison sentence could be ten years rather than

     five."

¶5            The factual basis established that defendant lived with his girlfriend, Zimmerlein, in an

     apartment. Reuter lived in an adjacent apartment, and a get-together was held in the common

     patio area of the apartments. After an altercation between defendant and another male,


                                                        2
     Zimmerlein took defendant back to their apartment. She returned to the gathering. When

     Zimmerlein later returned to the apartment, defendant struck Zimmerlein with a golf club,

     breaking her arm. Zimmerlein called for help, at which point Reuter entered the apartment.

     Defendant then struck Reuter with the club, leaving a puncture mark on her torso. The court

     accepted the guilty plea and scheduled the matter for sentencing.

¶6          The sentencing hearing was held on November 28, 2011. Defendant's brother,

     grandmother, and friend testified on his behalf. Each testified that defendant had a problem with

     alcohol. Defendant also made a statement. He explained that he had been drinking on the night

     in question. He began hallucinating and thought he was being attacked. "I thought I was

     actually protecting when what I was doing was the exact opposite."

¶7          The court also considered the presentence investigation report (PSI). The PSI indicated

     that defendant had been convicted of burglary—a Class 2 felony—in 2005. It also showed

     multiple convictions for domestic battery (in 2006 and 2009) as well as a conviction for driving

     under the influence. The PSI also indicated that defendant had previously been diagnosed with

     bipolar disorder and alcohol dependence. Attached to the PSI were letters from defendant and

     other family members. Each letter addressed defendant's problems with alcohol.

¶8          At the sentencing hearing, the State submitted the victim impact statements of

     Zimmerlein and Reuter, as well as Zimmerlein's medical records. In Zimmerlein's letter,

     received more than four months after the battery, she described the injury as follows:

                       "The ulna bone in my left arm was pretty *** shattered except

                    for a piece by my wrist and a piece by my elbow. The rest was just

                    crushed fragments. The doctor had to scrape and clean all the tiny




                                                     3
                      little pieces that were left. He the[n] had to put in a plate and five

                      screws just to keep my arm together."

       Zimmerlein also wrote that she had amassed more than $25,000 in medical expenses. She was

       unable to lift more than five pounds with her arm, which affected her ability to work.

¶9            Zimmerlein wrote that the injury was worse than her doctor originally expected.

       Following the initial surgery, the doctor informed her there was no sign of bone growth.

       Zimmerlein was put on a bone stimulation system, which did not work. She was to undergo

       further surgery to correct the problem. Zimmerlein claimed that if that surgery was unsuccessful,

       her arm "could be like this for the rest of [her] life." She still suffered from daily pain in her arm.

¶ 10          Medical reports classified Zimmerlein's injury as a "Grade I open left ulna shaft fracture

       with comminution involving greater than 5 pieces." The reports also detailed the "nonunion" of

       the fracture, as well as the lack of progress with a bone stimulator. The last medical report in the

       PSI, dated October 14, 2011, indicated that Zimmerlein would need surgery to remove a bone

       graft. The doctor noted that he did not discern "any progression at all in the fracture gap."

¶ 11          At argument, the State posited that defendant was extended-term eligible on both counts.

       The State asked for sentences of seven and five years' imprisonment on count I and count II,

       respectively. Defendant asked for a recommendation of impact incarceration.

¶ 12          After a recess, the court stated that it had considered the victim impact statements, letters

       written on behalf of defendant, and the PSI, including all attached reports. The court also

       "reviewed the factors in mitigation and aggravation." The court opined that the only applicable

       factor in mitigation was that defendant's conduct was clearly the result of his intoxication. The

       court considered this a "substantial ground[] tending to excuse or justify the defendant's criminal

       conduct" but failing to establish a defense. Addressing other statutory factors in mitigation, the


                                                         4
       court pointed out that there was no evidence that incarceration would affect defendant's

       dependents; the court did not find defendant was unlikely to commit further crime.

¶ 13          In aggravation, the court noted the seriousness of the injuries inflicted. The court also

       emphasized defendant's extensive list of prior convictions and the need to deter others from

       committing the same crime. The court concluded: "But clearly the factors in aggravation

       outweigh the factors in mitigation, for whatever that's worth. But I have reviewed all of those

       factors, even if I haven't specifically mentioned them here in court."

¶ 14          In delivering the sentence, the court mentioned that it was "struck by both injuries" in the

       present case. The court pointed out that one of the injuries "could be an injury about which

       nothing can be done." The court found defendant eligible for impact incarceration, but decided

       that such a sentence would "deprecate the seriousness of the two offenses here." The "extent of

       the injuries here" also affected the court's decision not to recommend impact incarceration.

¶ 15          The court reiterated that the State had informed the court that defendant was eligible for

       extended-term sentences on each count. The court sentenced defendant to a term of 5½ years'

       imprisonment on the count of aggravated domestic battery and a term of 4 years' imprisonment

       on the count of aggravated battery. The court found that consecutive sentences were necessary

       to protect the public.

¶ 16          Defendant subsequently filed a motion to reconsider sentence. In the motion, defendant

       argued that he had been subjected to an improper double enhancement when the sentencing court

       considered the physical injury caused as an aggravating factor. He also argued that the court

       failed to consider, as a mitigating factor, that defendant did not "contemplate that his criminal

       conduct would cause or threaten serious physical harm to another." The court denied the motion.

¶ 17          On appeal, this court remanded the matter due to an error with the Illinois Supreme Court


                                                        5
       Rule 604(d) (eff. Feb. 6, 2013) certificate. People v. Arbuckle, No. 3-12-0285 (Aug. 16, 2012)

       (dispositional order). On remand, defendant was granted leave to file a second motion to

       reconsider sentence. That motion was denied following a hearing. Defendant appeals.

¶ 18                                               ANALYSIS

¶ 19                                       I. Extended-Term Eligibility

¶ 20           Defendant argues that he was not eligible for an extended sentence on the count of

       aggravated battery. He contends that a trial court may only impose an extended-term sentence

       for the most serious offense committed during a single course of conduct. Because defendant

       raises this issue for the first time on appeal, he urges that we review the issue under the rubric of

       plain error.

¶ 21           The nonextended permissible sentence range for a Class 3 felony is not less than two and

       not more than five years' imprisonment. 730 ILCS 5/5-4.5-40(a) (West 2010). The permissible

       sentencing range for an extended-term eligible defendant convicted of a Class 3 felony is a term

       of not less than 5 and not more than 10 years' imprisonment. Defendant here was sentenced to a

       term of four years' imprisonment, a sentence within the nonextended range.

¶ 22                                              A. Plain Error

¶ 23           To preserve a claim of sentencing error, both a contemporaneous objection and a written

       postsentencing motion raising the issue are required. People v. Hillier, 237 Ill. 2d 539, 544

       (2010). As defendant has failed to take either of these steps, he has forfeited his claim. As a

       result, we may only review the claim if defendant has established plain error. Id. at 545.

¶ 24           Our supreme court has clarified on many occasions that the plain error doctrine is a

       narrow and limited exception to the general forfeiture rule. E.g., id.; People v. Herron, 215 Ill.

       2d 167, 177 (2005) (listing supreme court cases holding the same). To obtain relief under the

                                                         6
       plain error exception, a defendant must first demonstrate that a "clear or obvious error" has

       occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). From there, a defendant must

       satisfy one of two prongs. "In the sentencing context, a defendant must then show either that (1)

       the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as

       to deny the defendant a fair sentencing hearing." Hillier, 237 Ill. 2d at 545. Should a defendant

       fail to meet his burden at any point, the procedural default must be honored. Id.

¶ 25                                         1. Clear or Obvious Error

¶ 26          The first step in any plain error analysis is determining whether any clear or obvious error

       has occurred. Piatkowski, 225 Ill. 2d at 565. In the present matter, defendant contends that the

       trial court's belief that he was eligible for an extended-term sentence for aggravated battery was

       such an error.

¶ 27          Section 5-8-2(a) of the Unified Code of Corrections governs the imposition of an

       extended-term sentence and provides:

                        "A judge shall not sentence an offender to a term of imprisonment

                        in excess of the maximum sentence authorized by Article 4.5 of

                        Chapter V for an offense or offenses within the class of the most

                        serious offense of which the offender was convicted unless the

                        factors in aggravation set forth in Section 5-5-3.2 or clause

                        (a)(1)(b) of Section 5-8-1 were found to be present." 730 ILCS

                        5/5-8-2(a) (West 2010).

       Our supreme court has interpreted this section to mean that "a defendant who is convicted of

       multiple offenses may be sentenced to an extended-term sentence only on those offenses that are

       within the most serious class." People v. Bell, 196 Ill. 2d 343, 350 (2001). Only when charges


                                                          7
       of differing class offenses arise from "unrelated courses of conduct" may a court sentence a

       defendant to extended-term sentences on offenses in different classes. Id.

¶ 28          The Bell court adopted the "single course of conduct" standard for determining whether a

       defendant is eligible for an extended-term sentence on a lesser charge. 1 Bell, 196 Ill. 2d at 352.

       Under this standard, multiple offenses arise from unrelated courses of conduct—triggering

       extended-term eligibility—when there is a " 'substantial change in the nature of [defendant's]

       criminal objective.' " Id. at 351 (quoting 730 ILCS 5/5-8-4(a) (West 1998)).

¶ 29          Because the issue of defendant's extended-term eligibility was never raised, the record is

       not well developed as to whether defendant's actions constituted a single course of conduct. The

       factual basis offered by the State at the plea hearing only established that Reuter was struck

       sometime after Zimmerlein had called for help. The State does not contest defendant's assertion

       on appeal that he was not extended-term eligible. We will therefore assume, for the sake of

       argument, that defendant was not extended-term eligible.

¶ 30          However, assuming that defendant was not extended-term eligible does not end our

       analysis. An error is committed only where it appears that a trial court's misapprehension

       arguably influenced its sentencing decision. People v. Hurley, 277 Ill. App. 3d 684, 687 (1996).

       In the present case, the court informed defendant that he was extended-term eligible at the plea

       hearing. The court's only comment on the subject at sentencing was a reference to the State's

       belief that defendant was extended-term eligible. Indeed, despite myriad aggravating factors, the

       court sentenced defendant to a term of imprisonment significantly below the extended-term

              1
                  The standard is the same applied under section 5-8-4 of the Unified Code of Corrections

       to determine the aggregate maximum and minimum sentences when consecutive sentences are

       imposed. See 730 ILCS 5/5-8-4(f)(2) (West 2010).


                                                        8
       range—indicative that the court did not consider defendant extended-term eligible.

¶ 31          In People v. Myrieckes, 315 Ill. App. 3d 478 (2000), this court found plain error where

       the trial court was under the mistaken impression that the defendant was extended-term eligible.

       The facts of Myrieckes are distinguishable from those in the case at hand and help illustrate why

       no such error was committed here. In Myrieckes, unlike here, it was plainly clear that the

       defendant was not extended-term eligible: the trial court instructed the defendant that his charges

       raised the possibility of an extended-term sentence if the complainant was " '12 years or under,' "

       while the controlling statute actually read " 'under 12 years of age.' " (Emphasis in original.) Id.

       at 480, 483. Both victims in Myrieckes were precisely 12 years old. Further, at sentencing, the

       court apparently reiterated its belief that the defendant was extended-term eligible. Myrieckes,

       315 Ill. App. 3d 478. The trial court sentenced the defendant to the maximum nonextended term

       of 30 years' imprisonment; the reviewing court, reasoning that it could not be sure whether the

       court's mistaken belief affected the sentence, remanded for resentencing. Id.

¶ 32          Here however, it is far from clear that the trial court was operating under any mistaken

       impression as to defendant's extended-term eligibility. As discussed supra, the ultimate

       sentences imposed tend to indicate that the court, at the time of sentencing, did not believe

       defendant to be extended-term eligible. That the court found consecutive sentences necessary,

       yet still sentenced defendant within the nonextended range, further evidences this point. And

       unlike in Myrieckes, we can be reasonably sure that even if the court here did believe that

       defendant was extended-term eligible, this mistaken belief did not affect the sentencing decision.

       We find that the trial court did not commit any "clear or obvious" error.

¶ 33                                     2. Second Prong of Plain Error




                                                        9
¶ 34          Even if the trial court erroneously believed defendant to be extended-term eligible, it

       would not rise to the level of plain error. Illinois Supreme Court Rule 615(a) allows that "Plain

       errors or defects affecting substantial rights may be noticed although they were not brought to

       the attention of the trial court." Our supreme court has held this rule provides criminal

       defendants with two possible avenues for relief with respect to unpreserved errors. See

       Piatkowski, 225 Ill. 2d at 565; see also Herron, 215 Ill. 2d at 178 ("The plain-error doctrine, as it

       has developed in Illinois, allows a reviewing court to reach a forfeited error affecting substantial

       rights in two circumstances.").

¶ 35          Under the first prong of the plain error doctrine, a reviewing court may address an

       otherwise forfeited issue when a defendant shows that "a clear or obvious error occurred and the

       evidence is so closely balanced that the error alone threatened to tip the scales of justice against

       the defendant, regardless of the seriousness of the error." Piatkowski, 225 Ill. 2d at 565. In the

       context of sentencing, this prong is satisfied when a defendant demonstrates that the evidence at

       a sentencing hearing was closely balanced. Hillier, 237 Ill. 2d at 545. In the present case,

       defendant does not contend that the evidence at sentencing was closely balanced and does not

       assert that the issue of his extended-term eligibility is reviewable pursuant to this first prong.

¶ 36          Our supreme court has held that the second prong of the plain error doctrine is triggered

       where "the error was so serious that it affected the fairness of the defendant's trial and challenged

       the integrity of the judicial process." Herron, 215 Ill. 2d at 187; see also Piatkowski, 225 Ill. 2d

       at 565 (using the same language). The court has referred to this as the "substantial rights" prong.

       Herron, 215 Ill. 2d at 186. At sentencing, the second prong is triggered where "the error was so

       egregious as to deny the defendant a fair sentencing hearing." Hillier, 237 Ill. 2d at 545.

¶ 37          In recent years, the supreme court has elaborated on the meaning of the second prong of


                                                         10
       plain error analysis, equating the second prong with the concept of "structural error." People v.

       Thompson, 238 Ill. 2d 598, 613-14 (2010). In Thompson, the court described a structural error as

       one which erodes the integrity of the judicial process and undermines the fairness of a trial—

       language almost identical to the court's formulation of the second prong of plain error. Id. More

       recently, the court has simply held that "[i]n order to obtain relief [under the second prong of

       plain error], defendant must demonstrate not only that a clear or obvious error occurred

       [citation], but that the error was a structural error." People v. Eppinger, 2013 IL 114121, ¶ 19.

       Errors such as denial of counsel, trial before a biased judge, denial of self-representation at trial,

       and trial by a biased jury fall into the category of a "structural error." Thompson, 238 Ill. 2d at

       608-09 (listing cases of structural error).

¶ 38          Defendant relies primarily on Myrieckes, 315 Ill. App. 3d 478, in arguing that the present

       issue is reviewable under the second prong of plain error. While Myrieckes is distinguishable on

       its facts from the present case, that court's decision that the error committed triggered second-

       prong plain error analysis is relevant here. On appeal in that case, the State argued that the issue

       of defendant's extended-term eligibility had been waived. The court decided that it could be

       reviewed under plain error: "[B]ased upon our review of the record in this case, we find that a

       substantial right of defendant has been affected. [Citation.] Therefore, we will review the

       alleged error under the plain error doctrine." Id. at 483. In Hurley, 277 Ill. App. 3d at 686, the

       Second District found the same error reviewable under similar facts. Defendant contends that,

       "[f]ollowing the reasoning in Myrieckes," the issue of the court's misapprehension of his

       extended-term eligibility is reviewable under the second prong of plain error.

¶ 39          Neither Myrieckes and Hurley, however, offers any justification for the finding that the

       issue was reviewable. In each case, the courts baldly assert that the trial court's mistaken belief


                                                         11
       affected a substantial right of the defendants. Neither court explained how the trial court's error

       affected the fairness of the proceedings or challenged the integrity of the judicial process.

       Indeed, following Herron, the mere affecting of a substantial right is not a justification for

       review under the second prong. See Herron, 215 Ill. 2d at 177 (finding that plain error doctrine

       "is not 'a general saving clause preserving for review all errors affecting substantial rights' "

       (quoting People v. Precup, 73 Ill. 2d 7, 16 (1978))). To the extent that Myrieckes is applicable to

       the case at hand, we refuse to follow it and find that the error in this case does not trigger review

       under the second prong of plain error.

¶ 40          The court here sentenced defendant within the standard sentencing range for a Class 3

       felony. In fact, defendant was sentenced to a term of imprisonment well within that range.

       Despite the numerous aggravating factors identified by the court, including multiple prior

       convictions for domestic battery and a Class 2 burglary conviction, the court sentenced defendant

       only to a term of four years' imprisonment. This term of imprisonment is one year (or 20%) less

       than the maximum nonextended sentence. Given the restraint shown by the trial court, we

       cannot find that its belief that defendant was extended-term eligible "was so egregious as to deny

       the defendant a fair sentencing hearing." Hillier, 237 Ill. 2d at 545.

¶ 41          It is also important to point out that Myrieckes and Hurley were decided 14 and 18 years

       ago, respectively, and plain error jurisprudence has evolved significantly in the intervening

       years. Only in the last five years has our supreme court clarified that the second prong of plain

       error should be equated with the concept of structural error. Structural errors tend to be those

       egregious errors where a fundamental right has been violated, such as the right to counsel. While

       any error in a criminal trial may be said to affect a "substantial right"—the defendant's right to

       freedom—the supreme court has significantly narrowed the second prong by holding that only


                                                         12
       structural errors constitute plain error. A court's belief that a defendant is extended-term

       eligible—where the defendant is ultimately sentenced to a term of imprisonment well within the

       nonextended range—does not rise to the intolerable level of structural error.

¶ 42          Finally, we must heed our supreme court's advice that the plain error doctrine is to be

       invoked only in limited circumstances. "A fair trial *** is different from a perfect trial[,]" and

       plain error should not act as a general saving clause. Herron, 215 Ill. 2d at 177. Indeed, plain

       error is a narrow path to relief, narrowed even further by Illinois Supreme Court Rule 604(d)

       (eff. Feb. 6, 2013), which requires a defendant who pleads guilty to file certain postsentence

       motions to perfect any appeal. To find second-prong plain error in the situation here presented

       would be to completely undermine the requirements of contemporaneous objection and

       postsentencing motion, including those requirements codified in Supreme Court Rule 604(d). It

       would turn the plain-error exception into a general saving clause. If any error were committed in

       this case, it would not constitute plain error; we will honor defendant's forfeiture.

¶ 43                                  B. Ineffective Assistance of Counsel

¶ 44          Defendant also argues that the assistance he received from counsel was ineffective for

       counsel's failure to raise the issue of defendant's extended-term eligibility. Whether counsel

       provided ineffective assistance turns on the well established two-pronged test of Strickland v.

       Washington, 466 U.S. 668, 687 (1984). See also People v. Albanese, 104 Ill. 2d 504, 526-27

       (1984) (adopting the Strickland test in Illinois). To establish that counsel was ineffective, a

       defendant must show that: (1) counsel's performance was objectively unreasonable; and (2) the

       defendant suffered prejudice as a result. Strickland, 466 U.S. at 687. The failure to satisfy either

       prong of the Strickland test precludes a finding of ineffective assistance of counsel. People v.

       Colon, 225 Ill. 2d 125, 135 (2007).


                                                        13
¶ 45          To satisfy the prejudice prong of the Strickland test, a defendant must demonstrate that

       there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the

       proceeding would have been different." Strickland, 466 U.S. at 694. In the present case,

       defendant would have to show that, had counsel objected to the proposition that defendant was

       extended-term eligible, a reasonable probability exists that defendant would have received a

       lesser sentence. Defendant has not met that burden.

¶ 46          Defendant used a broken golf club to stab Reuter, who had come to her friend's aid. For

       this, defendant was sentenced only to a term of four years' imprisonment. This was despite a list

       of aggravating factors that the trial court found to greatly outnumber any mitigating factors. As

       discussed supra, the four-year sentence was not in the extended range, nor was it even the

       maximum allowable sentence within the standard sentencing range. We find no reasonable

       probability that the trial court could have been any more lenient in its sentencing.

¶ 47                                          II. Great Bodily Harm

¶ 48          Defendant next contends that the trial court erred in considering the harm done to

       Zimmerlein as an aggravating factor at sentencing. Because "great bodily harm" is a necessary

       element of aggravated domestic battery, 2 defendant argues, consideration of the harm as an

       aggravating factor serves as an improper double enhancement. Whether a court relied on an

       improper factor at sentencing is a question of law that we review de novo. People v. Mauricio,

       2014 IL App (2d) 121340, ¶ 15. The weight given to any aggravating factor, however, is a



              2
                  Aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2010)) is committed when

       "[a] person who, in committing a domestic battery, intentionally or knowingly causes great

       bodily harm, or permanent disability or disfigurement."


                                                         14
       matter of the trial court's sound discretion, and will not be disturbed absent an abuse of that

       discretion. See People v. Gooch, 2014 IL App (5th) 120161, ¶ 11.

¶ 49          In People v. Saldivar, 113 Ill. 2d 256 (1986), our supreme court addressed this issue

       directly. The court stated:

                      "Certain criminal conduct may warrant a harsher penalty than other

                      conduct, even though both are technically punishable under the

                      same statute. Likewise, the commission of any offense, regardless

                      of whether the offense itself deals with harm, can have varying

                      degrees of harm or threatened harm. The legislature clearly and

                      unequivocally intended that this varying quantum of harm may

                      constitute an aggravating factor." (Emphasis added.) Id. at 269.

       Furthermore, the court found:

                       "[T]he severity of the sentence depends upon the degree of harm

                      caused to the victim and as such may be considered as an

                      aggravating factor in determining the exact length of a particular

                      sentence, even in cases where serious bodily harm is arguably

                      implicit in the offense for which a defendant is convicted."

                      (Emphases in original.) Id.

¶ 50          The Saldivar court nevertheless found that the trial court, in sentencing the defendant for

       voluntary manslaughter, improperly considered the death of the victim as an aggravating factor.

       Saldivar, 113 Ill. 2d at 272. Defendant relies on the result in Saldivar, rather than the supreme

       court's expression of the law, in making his argument here.




                                                        15
¶ 51          Saldivar, however, is distinguishable from the case at bar, just as the offense of voluntary

       manslaughter is distinguishable from aggravated domestic battery. The offense of voluntary

       manslaughter is plainly one in which the harm caused—that is, death of the victim—does not

       occur in varying degrees. 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.

¶ 52          Apparently recognizing that "great bodily harm" may come in varying degrees, defendant

       argues that the harm he caused in the present case is not of a sufficient degree to merit

       consideration at sentencing. Defendant cites to People v. Rader, 272 Ill. App. 3d 796, 808

       (1995), in support of the proposition that injuries must "far exceed" the statutory definition of

       great bodily harm in order to be properly considered as an aggravating factor. In Rader, the

       victim suffered from legal blindness, loss of hearing, partial paralysis, brain damage, and

       seizures.

¶ 53          We agree that the degree of great bodily harm must rise above a baseline level before a

       court may consider the harm as an aggravating factor. We do not agree, however, that the

       grievous injuries suffered by the victim in Rader somehow sets this standard. In the present

       case, defendant shattered Zimmerlein's arm with a golf club. Zimmerlein's own description of

       the injury, confirmed by medical reports, was graphic and compelling. The bone had failed to

       mend despite extensive treatment and therapy. Zimmerlein suffered from continued pain that

       affected her on a day-to-day basis, and the injury still required further surgery. The court's

       finding that Zimmerlein's injury constituted a degree of harm beyond what is required to fall

       under the aggravated domestic battery statute was neither an abuse of discretion, nor against the

       manifest weight of the evidence.

¶ 54                                          III. Mitigating Factors


                                                        16
¶ 55          Finally, defendant contends that the trial court erred by ignoring certain mitigating factors

       at sentencing, resulting in an excessive sentence. Specifically, defendant argues that the court

       failed to consider that defendant did not contemplate that his conduct would cause physical

       harm, nor did it consider his employment history or family ties. Defendant asks that we reduce

       his "excessive" sentence.

¶ 56          A trial court has broad discretion in sentencing a criminal defendant, and its sentencing

       decisions are given great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Such

       deference is necessary because the trial court is in a far better position than the reviewing court

       to weigh certain factors. " 'The trial judge has the opportunity to weigh such factors as the

       defendant's credibility, demeanor, general moral character, mentality, social environment, habits,

       and age. [Citations.] Consequently, the reviewing court must not substitute its judgment for that

       of the trial court merely because it would have weighed these factors differently.' " Id. at 213

       (quoting People v. Stacey, 193 Ill. 2d 203, 209 (2000)). "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.' " Alexander, 239 Ill. 2d at 212 (quoting

       Stacey, 193 Ill. 2d at 210).

¶ 57          "There is a presumption that a trial court considered all relevant factors in determining a

       sentence, and that presumption will not be overcome without explicit evidence from the record

       that the trial court did not consider mitigating factors." People v. Flores, 404 Ill. App. 3d 155,

       158 (2010). In the present case, defendant is unable to make such a showing. The trial court

       stated explicitly that it had reviewed all reports, statements, and the PSI. It also reviewed all

       factors in aggravation and mitigation, including those which it did not single out for extended




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       discussion at the sentencing hearing. Each of the mitigating factors defendant identifies here as

       being ignored were, in fact, covered in the trial court's review.

¶ 58          We also note that defendant argues that his problems with alcohol should be considered

       in mitigation, as his intoxication at the time of the batteries prohibited him from contemplating

       the harm that he was inflicting. Alcohol abuse, however, may be properly be considered as an

       aggravating factor. People v. Scott, 225 Ill. App. 3d 938, 941 (1992) ("A defendant's history of

       alcoholism may also be considered as evidence that his conduct is likely to recur."). Further,

       though defendant claimed his alcohol-induced hallucinations caused him to think he was

       protecting his girlfriend, he still knew that swinging the golf club would cause serious harm. The

       hallucination would merely tend to justify or excuse his actions, a mitigating factor the court did

       discuss.

¶ 59                                             CONCLUSION

¶ 60          For the foregoing reasons, the judgment of the circuit court of Bureau County is affirmed.

¶ 61          Affirmed.

¶ 62          JUSTICE LYTTON, specially concurring.

¶ 63          I concur in the judgment affirming defendant's sentence because the trial court did not

       commit error in sentencing defendant, even though the court mistakenly believed defendant was

       extended-term eligible. However, I write separately to indicate my concern with the majority's

       implied position that where the defendant is not sentenced to an extended term, enhanced-

       eligibility sentencing errors do not fall into the category of a "structural error." See Thompson,

       238 Ill. 2d at 608-09.

¶ 64          In People v. Glasper, 234 Ill. 2d 173 (2009), our supreme court defined a "structural

       error" as "a systemic error which serves to 'erode the integrity of the judicial process and

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       undermine the fairness of the defendant's trial.' " Glasper, 234 Ill. 2d at 197-98 (quoting Herron,

       215 Ill. 2d at 186). The sentencing issue here was not error, but enhanced-eligibility sentencing

       errors may be systemic, structural errors, reviewable under plain error. See People v. McBride,

       395 Ill. App. 3d 204, 208 (2009) (improper increase in sentencing in a matter affecting

       substantial rights); People v. Lindsay, 247 Ill. App. 3d 518, 535 (1993) (court imposed an

       unauthorized extended-term sentence reviewable under plain error); People v. Fuergeson, 132

       Ill. 2d 86, 99 (1989) (imposition of an extended-term sentence constituted improper double

       enhancement subject to plain error review). I do not agree with the majority's assertion that in

       light of recent "structural error" case law, issues involving improper consideration of enhanced-

       sentencing eligibility, in which substantial rights are impacted, are not reviewable under the

       second prong of plain error.

¶ 65          In Myrieckes and Hurley, the trial court mistakenly believed that the defendant was

       extended-term eligible. In both cases, the appellate court determine that a substantial right of the

       defendant had been affected and that it was necessary to remand for resentencing because the

       reviewing court could not say with certainty that the improper factor (the court's

       misapprehension as to extended-term sentencing eligibility) did not affect the sentence imposed.

       Myrieckes, 315 Ill. App. 3d at 483; Hurley, 277 Ill. App. 3d at 686.

¶ 66          Here, the trial court's statements at the sentencing hearing demonstrated that the trial

       court sentenced defendant based on the nature and seriousness of the two crimes, particularly the

       seriousness of the injury to Zimmerlein.       The court mentioned the State's argument that

       defendant was extended-term eligible, but did not rely on that factor in determining an

       appropriate sentence for each offense.      By contrast, in Myrieckes and Hurley, the court's

       misapprehension that the defendant was extended-term eligible could not be ruled out as a factor


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that may have been considered in sentencing. Consideration of such a factor, even if the

defendant is not sentenced to an extended term, serves to erode the integrity of the judicial

process. See People v. Conover, 84 Ill. 2d 400 (1981); see also Herron, 215 Ill. 2d at 186. We

may be presented with other cases in which the trial court's misapprehension as to extended-term

eligibility was a factor that influenced the sentencing decision, or at least arguably so, although

the defendant was sentenced to a nonextended term. In such cases, the holdings in Myrieckes

and Hurley are still good law and should be followed.




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