                                       2017 IL App (1st) 151631

                                             No. 1-15-1631

                                    Opinion filed December 14, 2017 


                                                                           FOURTH DIVISION

                                                 IN THE


                                  APPELLATE COURT OF ILLINOIS


                                            FIRST DISTRICT



     THE PEOPLE OF THE STATE OF                      )      Appeal from the Circuit Court
     ILLINOIS,                                       )      of Cook County.
                                                     )
          Plaintiff-Appellee,	                       )
                                                     )
          v. 	                                       )      Nos. 01 CR 28427; 01 CR 28428
                                                     )
     NATHANIEL STEPHENS,                             )      The Honorable
                                                     )      Angela Munari Petrone,
          Defendant-Appellant.                       )      Judge, presiding.


            JUSTICE GORDON delivered the judgment of the court, with opinion. 

            Presiding Justice Burke and Justice McBride concurred in the judgment and opinion. 




                                              OPINION


¶1               After a bench trial in Cook County circuit court, defendant Nathaniel Stephens, who

       was 19 years old at the time of the offense in 2001, was convicted of the first degree murder

       and aggravated battery of a 4-month-old infant. For reasons that we discuss below, defendant

       was sentenced three times. At the third and most recent sentencing on April 16, 2015,

       defendant was sentenced to a total of 29 years with the Illinois Department of Corrections

       (IDOC). On this appeal, defendant raises challenges only to his 29-year sentence and asks

       this court (1) to reduce his sentence to the minimum, which is 26 years; (2) to remand for
     No. 1-15-1631


        resentencing before a different judge; or (3) to order the reinstatement of his first sentence,

        which consisted of two concurrent 25-year sentences for his first degree murder and

        aggravated battery convictions. For the following reasons, we affirm.

¶2                                           BACKGROUND

¶3             In a prior opinion, we summarized the facts of this case as follows:

                     “During 2001, defendant was the sometime-live-in boyfriend of Trenatta

               Richardson, the mother of the four-month-old victim. On October 25, 2001, while

               defendant babysat her, the victim suffered a broken leg. The victim died from blunt

               trauma injuries on November 2, 2001, after being in defendant’s care. On November

               3, 2001, in a videotaped confession, defendant admitted to hitting the victim’s head

               into a door frame three times and punching the victim in the ribs three times on

               November 2, 2001, to stop the victim from crying.

                     Defendant was charged in separate indictments with: (1) aggravated battery to a

               child for the incident on October 25, 2001, when the victim suffered a broken leg; and

               (2) first degree murder for the incident on November 2, 2001, when the victim died

               from blunt force trauma injuries.” People v. Stephens, 2012 IL App (1st) 110296,

               ¶¶ 5-6.

¶4             In our prior opinion, we described in detail the evidence at trial, and we incorporate

        that opinion by reference. Stephens, 2012 IL App (1st) 110296, ¶¶ 38-60 (description of

        evidence at trial). Since there are no issues on this appeal regarding the evidence at trial,

        there is no need to repeat that description here.




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¶5              As noted above, defendant was sentenced three times. After the bench trial, defendant

        was sentenced on August 30, 2005, to two concurrent sentences of 25 years with IDOC. 1

        This is the initial sentence that defendant would now like restored.

¶6              At the sentencing hearing on August 30, 2005, the State entered into evidence two

        certified statements of conviction, for possession of a stolen motor vehicle and possession of

        a controlled substance with intent to deliver, and then stated that it had “nothing further in

        terms of evidence for sentencing.”

¶7              In mitigation, defense counsel argued that defendant was only 19 years old at the time

        of the offense and suffered from “mental retardation and mental handicaps” and thus

        deserved imposition of the minimum sentence. In response, the State argued that it had not

        “been established to any certainty that the defendant is, in fact, mentally retarded.” The State

        observed that there were IQ tests in the record and conceded that the defense could argue

        diminished capacity but not mental retardation. The State also argued that this case marked

        defendant’s fifth felony conviction, which, “at his young age” of 22, “makes him a career

        criminal.” The State did not argue for a particular sentence or even a particular sentencing

        range but asked only for “an appropriate sentence.”

¶8              The trial court then observed that defendant was convicted “of the offense of

        aggravated battery of a child which is a Class X offense with a range of sentence anywhere

        from six years to thirty years and also the offense of first degree murder on this child that

        carries with it a range of sentence beginning at 20 years.”

            1
              The trial court entered two sentencing orders on August 30, 2005. In case No. 01 CR 2842701
     which concerned murder, the trial court entered a sentencing order stating that defendant’s 25-year
     sentence for that offense shall “be concurrent with the sentence imposed in case number(s) 01 CR
     28428021.” Similarly, in case No. 01 CR 284201 which concerned aggravated battery of a child, the trial
     court entered a sentencing order stating that defendant’s 25-year sentence for the aggravated battery
     offense shall “be concurrent with the sentence imposed in case number(s) 01 CR 28427001.”
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¶9                 As noted, after considering the factors in aggravation and mitigation, the trial court

           sentenced defendant to two concurrent 25-year sentences, with credit for time served.

¶ 10               After defendant received this sentence, the State argued on direct appeal that the trial

           court erred in sentencing defendant to concurrent sentences when consecutive sentences were

           statutorily required. 2 Stephens, 2012 IL App (1st) 110296, ¶ 64. On December 24, 2009, this

           court affirmed his convictions but agreed with the State that consecutive sentences were

           mandatory and that his concurrent sentences must be vacated. 3 People v. Stephens, No. 1-05­

           3365 (2009) (unpublished order under Supreme Court Rule 23). We explained: “When a trial

           court imposes concurrent sentences but consecutive sentences are mandatory, the sentencing

           order is void and the appellate court has the authority to correct the sentence ‘at any time.’ ”

           Stephens, slip order at 27 (citing People v. Arna, 168 Ill. 2d 107, 113 (1995)). 4 Concerning

           the resentencing, we instructed the trial court that “[i]t is within the trial court’s discretion to

           determine the length of each sentence to be imposed, within the permissible statutory

           sentencing range.” Stephens, slip order at 30. Our remand resulted in defendant’s second

           sentence. Specifically on June 9, 2010, the trial court sentenced him to two consecutive 25­

           year sentences with IDOC.


               2
                  The State argued that consecutive sentences were mandatory pursuant to People v. Arna, 168 Ill.
       2d 107, 112 (1995), which had held that consecutive sentences were mandatory if one of the offenses was
       a Class X offense and the defendant inflicted severe bodily injury. In the case at bar, both offenses were
       Class X offenses, and both inflicted severe bodily injury to the victim, thereby qualifying as triggering
       offenses for mandatory consecutive sentences. People v. Causey, 341 Ill. App. 3d 759, 773 (2003) (“first
       degree murder can serve as a triggering offense”); 720 ILCS 5/12-4.3(b) (West 2000) (aggravated battery
       of a child is a Class X felony).
                3
                  Defendant cites in his brief to this court both (1) the State’s brief on direct appeal and (2) our
       Rule 23 order that decided the appeal, but he fails to include them in our record and fails to provide
       record citations to these documents in his brief. It is the appellant’s burden to provide a sufficiently
       complete record to support his or her claims. People v. Chatman, 2016 IL App (1st) 152395, ¶ 66.
                4
                  The void sentence rule set forth in Arna was later “abolish[ed]” by the Illinois Supreme Court in
       People v. Castleberry, 2015 IL 116916, ¶ 1. See People v. McDaniel, 2016 IL App (2d) 1141051, ¶ 4
       (“Castleberry *** overturned Arna”). We discuss at length why this change does not affect the outcome
       of the case at bar. Supra ¶¶ 65-72.
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       No. 1-15-1631


¶ 11             However, the trial court issued this sentence without defendant or his counsel being

          present. Stephens, 2012 IL App (1st) 110296, ¶ 67. The entire proceeding consisted of the

          following statement by the trial court:

                       “ ‘THE COURT: These are the cases of Nathaniel Stephens. The defendant is not

                 in court. For both the cases the Appellate Court mandate has been issued and the

                 mandate—and the mandamus, excuse me, shall be spread of record on each of the

                 cases. The mittimus is corrected.

                       Defendant sentenced to 25 years consecutive and it is nunc pro tunc to August

                 30th, 2005. Actually, let me phrase it this way: One case is 28427 and the other case

                 is 28428. On 27 the sentence is 25 years Illinois Department of Corrections. On

                 28428 the sentence is 25 years Illinois Department of Corrections consecutive to 01

                 CR 28427. Both sentences are nunc pro tunc. Let me just add this little part too, on

                 28427, that sentence is on Count 3. And it will be off call.’ ” Stephens, 2012 IL App

                 (1st) 110296, ¶ 121.

¶ 12             Subsequently, defendant filed a pro se postconviction petition, which was summarily

          dismissed. On the postconviction appeal, this court affirmed the dismissal of defendant’s

          petition but vacated his two consecutive 25-year sentences due to the trial court’s failure to

          hold a sentencing hearing. Stephens, 2012 IL App (1st) 110296, ¶ 123. We remanded for

          resentencing, observing that section 5-5-3(d) of the Unified Code of Corrections (Code) (730

          ILCS 5/5-5-3(d) (West 2004)) provides in relevant part:

                 “ ‘In any case in which a sentence originally imposed is vacated, the case shall be

                 remanded to the trial court. The trial court shall hold a hearing under Section 5-4-1 of

                 the Unified Code of Corrections which may include evidence of the defendant’s life,


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       No. 1-15-1631


                    moral character and occupation during the time since the original sentence was

                    passed. The trial court shall then impose sentence upon the defendant.’ ” Stephens,

                    2012 IL App (1st) 110296, ¶ 123 (quoting 730 ILCS 5/5-5-3(d) (West 2004)).

¶ 13                Since it is this third sentencing that is at issue on this appeal, we describe it here in

          detail.

¶ 14                After we remanded the case a second time, it was assigned to a new trial judge

          pursuant to defendant’s petition for substitution of judge. At the subsequent sentencing

          hearing held in 2015, the State did not call any witnesses but relied, in aggravation, on the

          seriousness of the offense and defendant’s prior criminal history. Defendant’s criminal

          history consisted of a total of five convictions, which were for the two convictions in the

          instant appeal, as well as three convictions for (1) possession of a stolen motor vehicle in

          1999, (2) possession of a controlled substance in 2000, and (3) another possession of a

          controlled substance in 2001.

¶ 15                In mitigation, defendant called five witnesses: (1) Ewenell McCulough, a correctional

          agent with the Cook County sheriff’s department; (2) Norlandi Young, a correctional agent at

          the Cook County jail; (3) Sheteila Allen, defendant’s sister; (4) Melanie Porter, the mother of

          defendant’s three children; and (5) Mary Porter, Melanie’s mother and the grandmother of

          defendant’s children.

¶ 16                Ewenell McCullough testified that he was a correctional sergeant with the Cook

          County sheriff’s department and that he has worked at the Cook County jail for 24 years.

          McCullough was assigned for over a year to division one of the jail, where defendant was

          detained. The division one assignment was from “roughly” June 2013 through July 2014.

          During that time, defendant worked for McCullough cleaning up “the tier” and feeding the


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       No. 1-15-1631


          other detainees. McCullough described defendant as follows: “He was always cooperative. I

          never had a problem with him. I never gave him a disciplinary. He was always respectful and

          did his job.”

¶ 17             Norlandi Young testified that she was also a correctional sergeant with the Cook

          County sheriff’s department, where she had been employed for 17½ years. Young had

          worked in division one for three years and had known defendant for about two years. During

          that time, defendant had worked “for the tier” where he will “[c]lean the showers, clean the

          day room, mop, sweep the floors.” Young described defendant as “[v]ery respectful, never

          had any problems with him.” To her knowledge, defendant had not had a disciplinary action

          or ticket issued against him since he had been in division one.

¶ 18             On cross-examination, Young was asked whether, of the 1200 detainees in division,

          one, it was “fair to say that many are respectful?” Young responded: “It’s not many.” She

          explained that more detainees were disrespectful than respectful to the correctional officers.

          On redirect examination, Young testified that she would classify defendant’s behavior as

          unusual and that, while tickets may be issued for many reasons including minor infractions,

          defendant did not have any tickets at the Cook County jail. Young testified that the Cook

          County jail was not an easy place to live and that inmates have altercations with each other

          but that she had never observed defendant in an altercation with anyone.

¶ 19             Sheteila Allen, defendant’s sister, testified that she was 30 years old and had been

          employed for almost 10 years in housekeeping at the Fairmount Hotel. In school, defendant

          was in special education for a learning disability and had difficulty with reading and math

          and completing his homework. Her parents had told her that, when defendant was born, he

          had excess fluid on his brain. When defendant was a child, he had an unusually large head.


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       No. 1-15-1631


¶ 20             Allen testified that their mother and aunt shared a two-flat building and over 15

          children lived there. Their mother was addicted to heroin and also used cocaine when Allen

          was five or six years old and continuing into Allen’s teen years. Sometimes there was no

          food, and defendant “would go outside and do the things, like, maybe sell drugs or whatever

          to provide for us, to make sure that we ate” or had clothes or shoes. Although defendant

          received Social Security when he was a child, their mother received the money and would

          sometimes use it for her drug habit.

¶ 21             Allen testified that defendant had children who also had special needs and learning

          disabilities and who could not count well and were behind in school.

¶ 22             On cross-examination, Allen testified that defendant attended a regular Chicago

          public high school, from which he was expelled when he was arrested. When her parents

          lived together when she was younger, her family was close, and they went to a restaurant or

          movie once a month. Allen and her sisters and brothers did not have a good upbringing, and

          it was not “peaceful” due to heroin and cocaine use by her mother, sisters, and brothers.

¶ 23             On redirect, Allen testified that defendant was protective of their mother and

          considered it disrespectful to say bad things about her in public and, in particular, about her

          drug addiction.

¶ 24             Mary Porter testified that she was the mother of defendant’s girlfriend and the

          grandmother of their three children. Porter first met defendant in 1997, when he was a

          teenager. When she first met him, she thought he was “slow” because “it just look like

          something, you know, was wrong with him.” She “found out later, that something had

          happened to him when he was born.” Since he had been in jail, defendant had called Porter

          twice a month, because he felt like his own mother had deserted him. Porter paid for the


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       No. 1-15-1631


          calls. Defendant’s children would spend the night with Porter and speak to defendant when

          he called. During these calls, she told him to go to church and pray, and when he called back,

          he confirmed that he had gone to church. Porter stated that defendant was “very nice” and

          “very respectful” and that she never had “any trouble out of him.”

¶ 25              Melanie Porter, the mother of defendant’s three children, testified that she was 32

          years old at the time of the hearing and that she first met defendant when she was 15 years

          old and they both attended the same high school. Defendant was in special education, and she

          was not. They had one class together, and defendant “couldn’t catch on like the other kids,”

          and she would try to help him. When Melanie 5 went to defendant’s home, she observed

          defendant’s mother and her friends in the kitchen smoking cocaine “rocks.” Melanie was

          aware that defendant received Social Security disability checks when he was in high school.

¶ 26              Melanie testified that, as a result of her first pregnancy, she and defendant had twin

          boys and Melanie and defendant were trying to figure out how to support them. The payee

          for defendant’s Social Security checks was his mother, and his mother would give defendant

          less than half of the money. Melanie would ask defendant to ask his mother for more of the

          money, but he did not want to ask for more. Before Melanie had children, she was aware that

          defendant and his siblings would often lack food due to the mother’s drug problem, and

          Melanie would let them eat at her house. Sometimes defendant would call his father, who

          would come over and bring a couple of dollars and leave.

¶ 27              Melanie testified that defendant always took his mother’s side, he respected his

          mother, and he never did anything to hurt her feelings. The same was true of his father, who

          also had a drug problem. When defendant had money, he helped Melanie and the children. In

              5
               Since Melanie and her mother share the same name, we refer to her mother as Porter and to
       Melanie by her first name.
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       No. 1-15-1631


          2015, at the time that Melanie testified at the hearing, the twin boys were 15 years old, and

          their daughter was 14 years old. All three have learning disabilities, similar to their father.

¶ 28             On cross-examination, Melanie testified that, despite the problems, defendant had a

          close family, his needs were addressed, and it was a peaceful existence. On redirect, Melanie

          testified that sometimes they lacked electricity and heat. Their building was family-owned,

          but defendant’s mother was not able to maintain it. In addition to defendant’s mother, other

          relatives used drugs in the home. Melanie testified that their family life was peaceful

          because, despite all their problems, they still loved each other. As for her own employment,

          Melanie had a seasonal job at Macy’s from August to this past January and she was also self-

          employed as a hairdresser.

¶ 29             During closing argument, the State reviewed the evidence presented at trial. The State

          conceded that defendant had a low IQ and diminished capacity and lacked “an ideal life

          growing up” but argued that it was still not “okay to kill a child a four—not a child, an infant,

          your Honor. It doesn’t allow him to kill this four-month and 3-week old infant, because she’s

          screaming while he’s playing video games.”

¶ 30             During closing argument, the defense observed, among other things, that the

          mitigation report submitted to the court showed that defendant had encephalitis when he was

          two years old and presently had an IQ of 64. Defendant asked the trial court to sentence

          defendant to the same sentence he had received originally, which was a total of 25 years.

          Counsel argued:

                       “DEFENSE COUNSEL: What sentence should he receive, Judge?

                       If you take into account who he is, Judge, which—and I might just note to the

                 Court that, when Judge Moran sentenced [defendant], he sentenced him concurrently;


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       No. 1-15-1631


                 and having the benefit of practicing in front of Judge Moran, that—that was not a

                 mistake.

                       He knew exactly what he was doing.

                       He knew what the appropriate time was for this young man to spend in custody.

                       Judge, you can duplicate that sentence here today. It is possible with the

                 sentencing range you have[.]***

                       What he was given, was appropriate; and it is not possible for the Court to give

                 him less. Otherwise, I would ask you for that; but it’s not possible.” (Emphasis

                 added.)

          After hearing oral argument, the trial court stated that it needed time to review the case.

¶ 31             On April 16, 2015, the trial court stated that it had reviewed all the records and

          summarized them for close to twenty pages. The trial court concluded:

                       “THE COURT: When left to care for a 4 month old who would not stop crying

                 and interrupted his playing a video game, the defendant became angry and snapped.

                 The testimony also was that he punched the baby in addition to banging the baby’s

                 head against the door frame.

                       The defendant said the crying was unlike any other he had heard from his own

                 children. And I would suggest most likely because the child had a broken leg and

                 fractured ribs from the defendant’s actions to her just a week before.

                       I’m suspecting the child was in a great deal of pain. The defendant lied about

                 what happened until confronted by police and faced with a polygram [sic] exam.




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No. 1-15-1631


                I do show that defendant has shown little responsibility for himself, his children

         or the 4 month old victim in this case. The defendant was not abused as a child even

         though his childhood was not ideal.

                People close to the defendant suffered from drug abuse. The testimony was that

         one way the defendant chose to make money was to sell drugs. The defendant’s sister

         with the same mother and father was steadily employed and did not have a criminal

         record.

                The defendant made a choice to go another route. At age 19 he was already a

         multi-convicted felon. Sentences of probation did nothing to help him stay in school,

         get his GED, find employment or stay out of trouble.

                Having said that I do not believe that the defendant planned his actions that

         caused such pain to 4 month old Destiny Nelson. I do believe that the defendant

         snapped like he said he did.

                But the harm is so irreparable. Destiny Nelson is dead. And she can never be

         brought back. Judge Moran originally sentenced the defendant to 25 years, Illinois

         Department of Corrections total for first degree murder and aggravated battery.

                When Judge Hill gave two, 25-year consecutive sentences that made the sentence

         50 years Illinois Department of Corrections. Having considered all of the above, all of

         the mitigation as well as the aggravation, I do believe that the sentence of 50 years

         Illinois Department of Corrections is high for this offense.

                I do believe that a lesser sentence is proper because the defendant did not intend

         to [sic] this action. However, I am considering all of the aggravation as just outlined

         above as well.


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       No. 1-15-1631


                       I believe the proper sentence here would be 23 years in the Illinois Department of

                  Corrections for first degree murder, Count 3, case number 01 CR 28427.

                       And consecutive sentence of six years in the Illinois Department of Corrections

                  for aggravated battery to a child on case number 01 CR 28429 which is a total of 29

                  years in the Illinois Department of Corrections followed by three years mandatory

                  supervised release.”

¶ 32              After announcing the sentence, the trial court asked defendant if he wanted to address

          the court. When defendant indicated that he did, the trial court stated: “All right. Please step

          up. And I’ll see if that’s going to change the sentence in any way. If it does, I’ll give you a

          different sentence. I don’t think it would affect it.”

¶ 33              After hearing that his sentence was cut from 50 to 29 years, defendant thanked the

          court “for everything” and asked the Lord “to bless everybody that had something to do with

          it:”

                       “DEFENDANT: I just want to thank you for giving my attorney the time to put

                  up litigation for me and for everybody that had something to do with the whole

                  process of going on since I been here.

                       Thank you for your time that I have been here two years. Got a chance to visit my

                  family, my father I haven’t saw [sic] him since 2005. *** And I just want to thank

                  you for everything. And god bless everybody that had something to do with it.”

¶ 34              The trial court responded: “Mr. Stephens, that does not change my sentence. I think I

          made the appropriate sentence, Mr. Stephens. You don’t have the 25 years that Judge Moran

          gave you. But you certainly don’t have the 50 years that Judge Hill gave you. So you’re

          going to be getting out. I don’t think you’re a bad person.”


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       No. 1-15-1631


¶ 35             On April 30, 2015, defendant filed a motion to reconsider sentence, arguing (1) that

          defendant’s 29-year total sentence was “excessive in view of the Defendant’s background

          and the nature of his participation in the offense,” (2) that the trial court “improperly

          considered in aggravation matters that are implicit in the offense,” and (3) that the “sentence

          improperly penalized Defendant for exercising his right to trial.” At the hearing on the

          motion on May 7, 2015, defense counsel stated: “And I have no argument. I just stand on the

          written motion.” The trial judge stated as follows:

                       “THE COURT: I don’t have the court file in front of me, I wasn’t given a copy of

                 anything from the Clerk’s Office for today either; however, I can rule on this now.

                       I do remember this case. [Defendant] was given by another court a sentence of 50

                 years. Upon reconsideration[,] hearing the mitigation and arguments, [defendant] is

                 sentenced to 23 years. I do believe it was not excessive, it was on the low end of the

                 sentencing range. Respectfully, your motion is denied.”

          In the quote above, the trial judge’s reference to a 50-year sentence “given by another court”

          was a reference to the total sentence imposed at the second sentencing by another judge.

          However, the judge’s reference above to “23 years” was a reference to only the murder

          sentence imposed by her at the third sentencing. The total sentence imposed at the third

          sentencing, by this same judge, was 29 years, and as quoted above, the motion to reduce this

          total sentence was denied.

¶ 36             On May 7, 2015, defendant filed a timely notice of appeal, and this appeal followed.

¶ 37                                             ANALYSIS

¶ 38             On this appeal, defendant challenges his 29-year total sentence and asks this court

          (1) to reduce his total sentence to the minimum, which is 26 years, (2) to remand for


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       No. 1-15-1631


          resentencing before a different judge, or (3) to order the reinstatement of his first sentence,

          which consisted of two concurrent 25-year sentences for his first degree murder and

          aggravated battery convictions.

¶ 39             As the trial court observed prior to defendant’s initial sentencing, defendant was

          convicted of (1) aggravated battery of a child, which is a Class X offense with a sentencing

          range of 6 to 30 years (730 ILCS 5/5-8-1(a)(3) (West 2002)), and (2) first degree murder

          with a sentencing range of 20 to 60 years (730 ILCS 5/5-8-1(a)(1) (West 2002)).

          Subsequently, this court found that consecutive sentences were mandatory under section 5-8­

          4(a)(i) of the Code (730 ILCS 5/5-8-4(a)(i) (West 2000)), and Arna, 168 Ill. 2d at 112.

          Stephens, slip order at 28 (“We vacate the concurrent sentences and remand to the trial court

          for the imposition of consecutive sentences.”).

¶ 40             After this court’s finding, the minimum total sentence that defendant could have

          received was 26 years, and he was sentenced to 29 years at his third sentencing. Defendant

          acknowledges on this appeal that any sentence imposed by the trial court during his third

          sentencing had to result in an increase from the 25-year sentence first imposed.

¶ 41             However, defendant’s 29-year sentence was on the very low end of what he could

          have received. Since the maximum sentence for his murder conviction was 60 years (730

          ILCS 5/5-8-1(a)(1) (West 2002) (for first degree murder, “a term shall be not less than 20

          years and not more than 60 years)) and the maximum sentence for the aggravated battery

          charge was 30 years (730 ILCS 5/5-8-1(a)(3) (West 2002) (“for a Class X felony, the

          sentence shall be not less than 6 years and not more than 30 years”)), the total maximum

          sentence that defendant could have received was 90 years. Thus, the aggregate sentencing

          range was 26 to 90 years at the third sentencing, and defendant received 29 years.


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       No. 1-15-1631


¶ 42               On this appeal, defendant argues, first, that his third sentence and his most recent

           sentencing hearing were unfair because the trial court did not properly consider mitigating

           evidence, such as his young age and troubled childhood, and because the court gave

           defendant the opportunity to speak only after first pronouncing defendant’s sentence. As

           relief, defendant seeks a remand for resentencing before a different judge 6 who, we observe,

           could sentence defendant to 90 years with IDOC.

¶ 43               Although defendant filed a motion to reconsider his sentence, he did not object at

           sentencing. As a result, the State argues that his claim is forfeited for our review. To preserve

           a sentencing claim for appeal, a defendant must make a contemporaneous objection at the

           sentencing hearing and raise the issue in a postsentencing motion. People v. Fort, 2017 IL

           118966, ¶ 18; People v. Hillier, 237 Ill. 2d 539, 544 (2010) (“It is well settled that, to

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

           postsentencing motion raising the issue are required.”). This principle encourages a

           defendant to raise issues before the trial court, thereby allowing the court to correct its own

           errors. People v. Downs, 2015 IL 117934, ¶ 13. However, even if a defendant has forfeited an

           issue by either failing to object or make a motion, we may still review for plain error. See

           People v. Jones, 2016 IL 119391, ¶ 9; Downs, 2015 IL 117934, ¶ 14. “The plain error

           doctrine is a narrow and limited exception to the general rule of procedural default.” Downs,

           2015 IL 117934, ¶ 15.

¶ 44               The plain error doctrine applies when either (1) a clear or obvious error occurred and

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



               6
                 We observe that, prior to the sentencing hearing at issue, the trial court did grant defendant’s
       petition for substitution of judge and the hearing proceeded before a different judge from the judge who
       had issued defendant’s 50-year sentence. Thus, defendant is seeking the same relief, a second time.
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       No. 1-15-1631


          against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error

          occurred and that error is so serious that it affected the fairness of the proceeding and

          challenged the integrity of the judicial process, regardless of the closeness of the evidence.

          People v. Clark, 2016 IL 118845, ¶ 42; Hillier, 237 Ill. 2d at 545 (these two prongs are also

          applied “[i]n the sentencing context”).

¶ 45              With respect to the second prong, although some of our supreme court’s decisions

          have “equated second-prong plain error with structural error,” our supreme court has more

          recently explained that it “did not restrict” second-prong plain error “to the [six] types of

          structural error that have been recognized by the [United States] Supreme Court.” People v.
                                                                                                          7
          Clark, 2016 IL 118845, ¶ 46. In the case at bar, defendant seeks reversal under both prongs.

¶ 46              Under both prongs, the first step of plain error review is to determine whether any

          clear or obvious error occurred. See Jones, 2016 IL 119391, ¶ 10. “ ‘[T]he term “plain” as

          used in the plain-error rule is synonymous with “clear” or “obvious”; error is not plain if the

          law was “unclear at the time of the trial but becomes clear on appeal because the applicable

          law has been clarified.” ’ ” People v. Fort, 2017 IL 118966, ¶ 39 (quoting In re M.W., 232 Ill.

          2d 408, 431 (2009), quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

¶ 47               The defendant has the burden of persuasion on both the threshold question of

          whether there was a clear or obvious error and the question of whether he is entitled to relief

          as a result of it. In re M.W., 232 Ill. 2d at 431.

¶ 48              In addition to plain error, defendant argues that his trial counsel was ineffective for

          failing to properly preserve this issue. Both the United States and Illinois Constitutions

          guarantee criminal defendants the right to the effective assistance of counsel. People v. Hale,

              7
                Although defendant’s appellate brief states that he seeks reversal for this claim under both
       prongs, it makes no argument concerning the second prong.
                                                         17 

       No. 1-15-1631


          2013 IL 113140, ¶ 15 (citing U.S. Const., amends. VI, XIV, and Ill. Const. 1970, art. I, § 8).

          In general, the standard of review for determining whether an individual’s sixth amendment

          right to effective counsel has been violated is de novo. Hale, 2013 IL 113140, ¶ 15. “A

          de novo review entails performing the same analysis a trial court would perform.” Khan v.

          BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 49             In determining whether defendant was denied effective assistance of counsel, we

          apply the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668

          (1984), and adopted by the Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504

          (1984). People v. Cherry, 2016 IL 118728, ¶ 24. Under the Strickland test, a defendant must

          show both that counsel’s performance was objectively unreasonable under prevailing

          professional norms and that there is a reasonable probability that, but for counsel’s

          unprofessional errors, the result of the proceeding would have been different. People v.

          Downs, 2015 IL 117934, ¶ 13. Since a defendant must satisfy both prongs of the Strickland

          test, the failure to establish either prong bars his claim. Cherry, 2016 IL 118728, ¶ 24. As for

          the first prong in a claim of ineffectiveness, counsel’s performance “must be evaluated based

          on the entire record.” (Internal quotation marks omitted.) People v. Kirklin, 2015 IL App

          (1st) 131420, ¶ 114; People v. Flores, 128 Ill. 2d 66, 107 (1989) (“[C]ounsel’s performance

          must be evaluated [based on] the entire record and not on isolated instances of alleged

          incompetence called into question by defendant.”). In the case at bar, defendant argues in his

          brief to this court that his trial counsel “submitted a plethora of mitigating evidence and

          mitigating witnesses” at the third sentencing hearing. In light of this concession, we do not

          understand how defendant could possibly satisfy the first prong of the Strickland test that his




                                                      18 

       No. 1-15-1631


          counsel’s performance at the hearing was objectively unreasonable under prevailing

          professional norms.

¶ 50                Turning then to the first step of the plain error doctrine, we do not find that defendant

          has carried his burden to show clear or obvious error. A trial court’s sentencing decision is

          reviewed only for an abuse of discretion. People v. Geiger, 2012 IL 113181, ¶ 27. “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.’ ” Geiger, 2012 IL 113181, ¶ 27 (quoting People v. Alexander, 239 Ill. 2d 205, 212

          (2010).

¶ 51                We do not find persuasive defendant’s argument that the trial court committed a clear

          and obvious error and abused its discretion by allegedly failing to consider mitigating

          evidence, when the trial court meticulously discussed the record for over 20 pages, including

          the mitigating evidence presented by defendant, and then sentenced defendant to the very

          lowest end of the possible sentencing range. Although the trial court did not give factors such

          as defendant’s age, troubled childhood, and conduct during incarceration the degree of

          deference that defendant believes they deserved, that is far different from saying that the trial

          court failed to consider them.

¶ 52                Defendant is correct that the trial court should have offered defendant an opportunity

          to speak prior to pronouncing sentence. Section 5-4-1 of the Unified Code of Corrections

          provides, in relevant part, that “[a]t the hearing the court shall *** afford the defendant the

          opportunity to make a statement on his own behalf.” 730 ILCS 5/5-4-1(a)(6) (West 2014). In

          the case at bar, the trial court did offer defendant an opportunity at the hearing, although after




                                                         19 

       No. 1-15-1631


           it had already pronounced a sentence. The trial court did state that, if defendant’s statement

           affected the court’s determination, “I’ll give you a different sentence.” 8

¶ 53               After defendant heard that his sentence was reduced from 50 to 29 years, defendant

           used his opportunity to speak, not to challenge his sentence, but to thank everyone involved

           in the proceedings.

¶ 54               As defendant acknowledges on this appeal, the failure to offer this opportunity prior

           to sentencing does not automatically require a remand for resentencing. People v. Lenius, 293

           Ill. App. 3d 519, 543 (1997) (“The failure of the trial court to ask a defendant if he wished to

           make a statement is a technical error which does not require reversal.”). As this court has

           previously observed, “the trial court’s failure to invite allocution is a technical error that can

           be harmless,” particularly where “[d]efense counsel had ample opportunity to present

           mitigating arguments on defendant’s behalf during the sentencing hearing.” People v.

           Boclair, 225 Ill. App. 3d 331, 336-37 (1992). In the case at bar, where defendant

           acknowledges on appeal that his counsel “submitted a plethora of mitigating evidence and

           mitigating witnesses” on his behalf, where the trial court afforded defendant an opportunity

           to speak before finalizing the sentence, and where defendant used this opportunity to thank

           everyone for apparently cutting his sentence almost in half, we cannot find that the trial

           court’s failure to offer defendant a prior opportunity to speak requires a remand for a fourth

           sentencing hearing.



               8
                  Defendant stresses that the trial court followed this comment by stating: “I don’t think it would
       affect it.” “When determining the correctness of a sentence, the reviewing court should not focus on a few
       words or statements made by the trial court, but should consider the record as a whole. [Citation.] An
       isolated remark made in passing, although improper, does not necessarily require that defendant be
       resentenced.” People v. Cervantes, 2014 IL App (3d) 120745, ¶ 44. In the case at bar, the transcript of the
       sentencing hearing shows that the trial court listened to what defendant stated and then concluded that
       defendant’s words of praise and thanks did not adversely impact the trial court’s determination.
                                                           20 

       No. 1-15-1631


¶ 55               Defendant’s second claim on this appeal is that the trial court abused its discretion on

           remand by increasing defendant’s sentence by four years over his initial sentence, where the

           State presented no new evidence in aggravation and the defense presented new evidence in

           mitigation, including evidence of his model behavior while incarcerated, his troubled

           childhood, and his mental health and lack of maturity at the time of the offense. For this

           claim, the relief defendant seeks is either a 3-year reduction by this court in his 29-year total

           sentence or a remand for resentencing before a different trial judge.

¶ 56               This claim, for the most part, is merely a repackaging of his first claim where he

           asserted that the trial court abused its discretion by not properly considering mitigating

           evidence, and it fails for largely the same reasons already discussed above. Supra ¶ 51.

¶ 57               In support, defendant cites North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969),

           which found that the due process clause bars a sentencing court from imposing a longer

           sentence after a retrial, if the purpose of the longer sentence is to punish a defendant for his

           success on appeal.

¶ 58               Like defendant’s first claim, this claim concerning Pearce is also forfeited for our

           review and may be reviewed only for plain error. We set forth the plain error doctrine above

           and will not repeat it here. In sum, we must, as a first step, find a clear and obvious error. For

           the following reasons, we can find none here.

¶ 59               First, whether you regard defendant’s total sentence as a 4-year increase or a 21-year

           decrease depends on whether you measure it against his first or second sentence. 9 When


               9
                 The State argues that, under People v. Carney, 196 Ill. 2d 518 (2001), and related cases, the
       sentences imposed at defendant’s third sentencing marked a decrease, even when measured against his
       first sentences, since his original 25-year sentence for murder was decreased to 23 years, and his original
       25-year sentence for aggravated battery was reduced to six years. See Carney, 196 Ill. 2d at 531 (rejecting
       defendant’s argument that, under Apprendi, consecutive sentences must be treated as a single sentence).
                                                           21 

       No. 1-15-1631


           defendant heard that the total for his second sentence was decreased by 21 years, he thanked

           “everybody that had something to do with” it, thanked the judge “for everything,” and then

           stated that he hoped “everybody that had something to do with it” would be blessed.

¶ 60               Second, Pearce does not apply to defendant’s case, as we explain below.

¶ 61               In Pearce, the United States Supreme Court held:

                       “Due process of law, then, requires that vindictiveness against a defendant for

                   having successfully attacked his first conviction must play no part in the sentence he

                   receives after a new trial. And since the fear of such vindictiveness may

                   unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally

                   attack his first conviction, due process also requires that a defendant be freed of

                   apprehension of such a retaliatory motivation on the part of the sentencing judge.

                       In order to assure the absence of such a motivation, we have concluded that

                   whenever a judge imposes a more severe sentence upon a defendant after a new trial,

                   the reasons for his doing so must affirmatively appear. Those reasons must be based

                   upon objective information concerning identifiable conduct on the part of the

                   defendant occurring after the time of the original sentencing proceeding. And the

                   factual data upon which the increased sentence is based must be made part of the

                   record, so that the constitutional legitimacy of the increased sentence may be fully

                   reviewed on appeal.” (Emphasis added.) Pearce, 395 U.S. at 725-26.

           We italicize above the portion quoted by defendant.




       However, Pearce, upon which defendant relies, focused on the total, aggregate sentence. Pearce, 395
       U.S. at 714-15 (discussing the “longer total sentence” and the “aggregating” prison terms). Since we find
       defendant’s reliance on Pearce misplaced for other reasons, we do not address this argument by the State.
                                                          22 

       No. 1-15-1631


¶ 62                However, twenty years later, in Alabama v. Smith, 490 U.S. 794, 799 (1989), the

           United States Supreme Court discussed Pearce and stated: “we have limited its application.”

           The Smith court explained that, in the 20 years since Pearce had been decided, the Court had

           limited Pearce’s application to “circumstances *** in which there is a ‘reasonable

           likelihood’ [citation], that the increase in sentence is the product of actual vindictiveness on

           the part of the sentencing authority. Where there is no such reasonable likelihood, the burden

           remains upon the defendant to prove actual vindictiveness.” Smith, 490 U.S. at 799-800;

           Texas v. McCullough, 475 U.S. 134, 138 (1986) (“vindictiveness of a sentencing judge is the

           evil the Court sought to prevent rather than simply enlarged sentences after a new trial”). See

           also People v. Garcia, 179 Ill. 2d 55, 74 (1997) (“Pearce’s prophylactic rule has been limited

           in its application to circumstances in which there is a reasonable likelihood that an increase

           in sentence is the product of actual judicial vindictiveness.”).

¶ 63                In the case at bar, defendant makes no claims of actual vindictiveness on the part of

           the third sentencing judge nor can we find any evidence of vindictiveness in the record of the

           third sentencing hearing. 10 Cervantes, 2014 IL App (3d) 120745, ¶ 44 (“When determining

           the correctness of a sentence,” we consider “the record as a whole.”). See also People v.

           Covington, 395 Ill. App. 3d 996, 1009 (2009) (allegedly erroneous findings are insufficient

           reasons to believe that a trial court has a personal bias for or against a litigant). Thus,

           according to Smith, this case does not present the type of circumstances to which Pearce still

           applies. In addition, we observe that the trial court readily granted defendant’s petition for

           substitution of judge before this hearing was held.

               10
                 The State argues that our supreme court has found that there is no reasonable likelihood of
       vindictiveness by a trial judge against a defendant when it is the State who seeks a remand to impose
       consecutive sentences. Garcia, 179 Ill. 2d at 75. This argument would apply to the second sentencing
       where it was the State who sought the remand, but it does not apply to the third sentencing, which is the
       proceeding at issue before us.
                                                          23 

       No. 1-15-1631


¶ 64              Defendant’s third claim is that the trial court’s imposition of a four-year increase in

          his aggregate sentence violated due process where the State did not present evidence of

          conduct “occurring after the time of the original sentencing.” Pearce, 395 U.S. at 725-26. We

          already discussed this quote from Pearce above and explained why we do not find this

          argument persuasive.

¶ 65              Defendant’s fourth claim is that, because the Illinois Supreme Court eliminated the

          void sentence rule in People v. Castleberry, 2015 IL 116916, ¶ 1, we should not have vacated

          his first sentence and remanded for his second sentencing and that, if we had not remanded

          for his second sentencing, we would not have remanded for his third sentencing and,

          therefore, we should vacate his third sentence and reinstate his first sentence. For the

          following reasons, we do not find defendant’s argument persuasive.

¶ 66             In Castleberry, as in our case, the defendant received a sentence that, the appellate

          court found, did not conform to statutory requirements. Castleberry, 2015 IL 116916, ¶ 6. In

          Castleberry, as in our case, the appellate court vacated the sentence as void and remanded for

          resentencing. Castleberry, 2015 IL 116916, ¶ 6. However, unlike our case, before a second

          sentencing occurred in Castleberry, our supreme court reversed, abandoning the void

          sentence rule. Castleberry, 2015 IL 116916, ¶ 1. The supreme court in Castleberry held that

          the appellate court “had no authority *** to vacate the circuit court’s sentencing order in

          response to the State’s argument,” and thus, the supreme court affirmed the trial court’s one

          and only sentencing order. Castleberry, 2015 IL 116916, ¶¶ 25, 31.

¶ 67             Defendant argues that our facts are similar. In the case at bar, the State argued on

          direct appeal that the first trial court erred in sentencing defendant to concurrent sentences

          and, as a result, the trial court’s 2005 sentencing order was void. In 2009, this court agreed,


                                                      24 

       No. 1-15-1631


          observing that, when a trial court imposes concurrent sentences when consecutive sentences

          are statutorily required, the resulting sentencing order is void and may be corrected at any

          time, pursuant to our supreme court’s 1995 decision in Arna, 168 Ill. 2d at 113. Stephens, No.

          1-05-3365.

¶ 68              In 2015, six years after our Rule 23 order, the supreme court in Castleberry, 2015 IL

          116916, ¶ 1, abandoned the void-sentence rule from Arna. On this appeal, defendant argues

          that, as a result of our supreme court’s 2015 Castleberry decision, this court was without

          authority in 2009 to remand for his second sentencing and thus we must reinstate his original

          2005 sentences.

¶ 69              What defendant overlooks is that we vacated his second sentences—which totaled 50

          years—at his request and remanded for a third sentencing. Stephens, 2012 IL App (1st)

          110296, ¶ 120. By contrast, in Castleberry, there was only one sentencing, not three as in our

          case. Thus, in the case at bar, it is the validity and fairness of this third sentencing that is

          before us now.

¶ 70              Based on Castleberry, defendant asks this court, in essence, to vacate the 2009 and

          2012 decisions of this court, as well as the third sentencing order of the trial court, and turn

          the clock back over 12 years to the first sentencing order in 2005.

¶ 71              However, in its subsequent Price opinion, our supreme court explained that the

          primary purpose behind Castleberry was to “preserv[e] the finality of judgments.” People v.

          Price, 2016 IL 118613, ¶ 28. Based on Price, we do not believe it was our supreme court’s

          intent to undo the finality of an eight-year old appellate decision, 11 upon which both the




             11
               Stephens, No. 1-05-3365.
                                                      25 

       No. 1-15-1631


          parties and subsequent appellate and trial courts have relied, particularly when the result

          would be to reinstate a decades-dormant, statutorily invalid sentence.

¶ 72               In essence, defendant argues that our 2009 order was void. However, our order was

          perfectly valid when issued and conformed to then-existing supreme court precedent. In

          Price, our supreme court held:

                   “After Castleberry, *** a defendant may no longer rely on the void sentence rule to

                   overcome forfeiture of a claimed sentencing error or to challenge a statutorily

                   nonconforming sentence in perpetuity [citation].” Price, 2016 IL 118613, ¶ 17.

          There is no dispute on appeal that defendant’s third sentence conformed to statute, while his

          first sentence—the one he asks us to reinstate—did not. If, after Castleberry, a defendant

          may not “challenge a statutorily nonconforming sentence in perpetuity,” then our supreme

          court did not intend Castleberry to become a vehicle by which a defendant could challenge

          as void an eight-year old appellate decision which ordered a statutorily conforming sentence,

          such as the one at bar. Price, 2016 IL 118613, ¶ 17. Thus, based on our supreme court’s

          recent decision in Price, we do not find defendant’s fourth claim persuasive.

¶ 73               In their briefs, the parties argue about whether the appellate court’s decision in People

          v. Cole, 2016 IL App (1st) 141664, was wrongly or rightly decided, but that is not an issue

          we need to address in order to resolve the issues before us. In Cole, 2016 IL App (1st)

          141664, the appellate court affirmed the trial court’s imposition of consecutive sentences at a

          second sentencing because (1) there was no “increase” if one looked at the individual

          sentences instead of the aggregate 12 and (2) the appellate court’s first order, finding the

          original concurrent sentences “void,” had become the law of the case. However, whether

              12
                 See footnote 8 supra for a discussion of case law concerning whether an increase is measured
       against the aggregate or individual sentences.
                                                        26 

       No. 1-15-1631


          Cole was rightly or wrongly decided, our facts go beyond those in Cole. Our case involves a

          third sentencing, not a second, and we vacated that second sentencing at defendant’s request.

          We would need to vacate two appellate court decisions, including one in defendant’s favor.

          Even if we were to accept defendant’s argument that Cole was wrongly decided, we would

          still need to decide how far back we were willing to reach and how many decisions we were

          willing to vacate—in order to reimpose a legally incorrect sentence. More importantly, Cole

          was decided before our supreme court’s decision in Price, and thus, our supreme court’s

          subsequent decision in Price controls our decision here, not the earlier appellate court

          decision.

                 Thus, we do not find defendant’s fourth claim, based on Castleberry, persuasive.

¶ 74                                         CONCLUSION

¶ 75             For the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 76             Affirmed.




                                                     27 

