                       Illinois Official Reports

                               Appellate Court



                  People v. Arbuckle, 2015 IL App (3d) 121014



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           AARON M. ARBUCKLE, Defendant-Appellant.




District & No.    Third District
                  Docket No. 3-12-1014




Filed             April 21, 2015




Decision Under    Appeal from the Circuit Court of Bureau County, No. 11-CF-37; the
Review            Hon. Cornelius J. Hollerich, Judge, presiding.




Judgment          Affirmed.




Counsel on        Joel C. Wessol, of State Appellate Defender’s Office, of Springfield,
Appeal            for appellant.

                  Patrick J. Herrmann, State’s Attorney, of Princeton (Dawn D. Duffy,
                  of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.
     Panel                    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,
       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.

                                                  -2-
       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 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 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.



                                                    -3-
¶ 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
       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.

                                                   -4-
¶ 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 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 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

          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).

                                                    -5-
       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 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
¶ 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

                                                    -6-
       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
       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 that 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 nor 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
       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

                                                    -7-
       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 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).
¶ 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.

                                                    -8-
       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
       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.
¶ 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

          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.”

                                                   -9-
       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
¶ 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
       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 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.

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       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 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. Ferguson, 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 determined 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 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

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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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