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                              Appellate Court                            Date: 2018.02.22
                                                                         10:53:26 -06'00'



                  People v. McGuire, 2017 IL App (4th) 150695



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CODY R. McGUIRE, Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-15-0695



Filed             November 22, 2017



Decision Under    Appeal from the Circuit Court of Macoupin County, No. 11-CF-65;
Review            the Hon. Joshua Aaron Meyer, Judge, presiding.



Judgment          Affirmed in part and vacated in part.


Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and Susan M. Wilham, of
Appeal            State Appellate Defender’s Office, of Springfield, for appellant.

                  Jennifer Watson, State’s Attorney, of Carlinville (Patrick Delfino,
                  David J. Robinson, and Luke McNeill, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE STEIGMANN delivered the judgment of the court, with
                  opinion.
                  Justices Knecht and Appleton concurred in the judgment and opinion.
                                              OPINION

¶1        In April 2011, the State charged defendant, Cody R. McGuire, with attempted first degree
     murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)), aggravated battery with a firearm (720
     ILCS 5/12-4.2(a)(1) (West 2010)), aggravated battery (720 ILCS 5/12-4(a) (West 2010)), and
     first degree murder (720 ILCS 5/9-1(a)(1) (West 2010)). Jury selection for defendant’s trial
     began in March 2015. During voir dire, the trial court asked whether the prospective jurors
     “disagreed” with the Zehr principles as codified in Illinois Supreme Court Rule 431(b) (eff.
     July 1, 2012). The court asked the State and defense counsel whether they believed that the
     prospective jurors had “been properly admonished as far as Zehr principles.” See People v.
     Zehr, 103 Ill. 2d 472, 476, 469 N.E.2d 1062, 1063-64 (1984). The State and defense counsel
     responded in the affirmative.
¶2        In March 2015, the jury found defendant guilty of second degree murder and aggravated
     battery with a firearm and not guilty of aggravated battery.
¶3        In May 2015, the trial court vacated defendant’s conviction for second degree murder as
     a lesser-included offense of aggravated battery with a firearm and sentenced him to 17 years
     in prison for aggravated battery with a firearm. The court did not impose any specific fines
     when sentencing defendant. Nonetheless, the circuit clerk assessed against defendant a $20
     violent-crime fee, a $50 anti-crime-fund fine, a $10 medical-costs fine, a $15
     state-police-operations fee, and a $5 court-assessment fee.
¶4        Defendant appeals, arguing that (1) the trial court failed to properly question the jurors on
     the relevant Zehr principles, (2) his sentence was excessive, and (3) the fines imposed by the
     circuit clerk were improper. We conclude that (1) defendant affirmatively waived the
     improper questioning of the prospective jurors on the relevant Zehr principles, (2) the trial
     court did not abuse its discretion when sentencing defendant, and (3) the fines imposed by
     the circuit clerk must be vacated. Accordingly, we affirm in part and vacate in part.

¶5                                        I. BACKGROUND
¶6                                      A. The State’s Charges
¶7       In April 2011, the State charged defendant with attempted first degree murder,
     aggravated battery with a firearm, aggravated battery, and first degree murder. Defendant
     originally pleaded guilty to first degree murder and aggravated battery. However, defendant
     appealed and was allowed to withdraw his guilty plea because his sentence for first degree
     murder was void. People v. McGuire, 2014 IL App (4th) 130083-U, ¶ 24. With his guilty
     plea withdrawn, defendant proceeded to a jury trial.

¶8                                           B. Voir Dire
¶9      Jury selection for defendant’s trial began in March 2015. During voir dire, the trial court
     addressed prospective jurors as follows:
                “THE COURT: The last group of questions that I’m going to ask are some
            principles that I have to read you by law, and I need for you all to listen closely
            because these are important.
                The [d]efendant is presumed innocent until the jury determines after deliberation
            that the [d]efendant is guilty beyond a reasonable doubt.

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                   Does anyone disagree with this, and if you do[,] please raise your hand?
                [The record] will show all fifteen [prospective jurors] were given an opportunity and
               none of them raised their hand.
                   The State has the burden of proving the [d]efendant guilty beyond a reasonable
               doubt. Does anyone disagree with this rule of law? If you do, please raise your hand?
                   [The record] will show all fifteen have not raised their hand.
                   The [d]efendant does not have to present any testimony at all and may rely on the
               presumption of innocence.
                   Does anyone disagree with this rule of law, and if you do, please raise your hand.
                   [The record] will show all fifteen were given an opportunity, and they did not
               raise their hand.
                   The [d]efendant does not have to testify. Would any of you hold the fact that the
               [d]efendant did not testify at this trial against the [d]efendant, and if the answer is yes,
               please raise your hand?
                   [The record] will show that all fifteen were given the opportunity, and they did
               not raise their hand.
                   Do the State and defense believe that the venire has been properly admonished as
               far as the Zehr principles?
                   MR. SCROGGINS [(defense attorney)]: Yes, Your Honor.
                   MS. WATSON [(State’s Attorney)]: Yes, Your Honor.”
       The trial court used this style of questioning throughout the entire jury selection process. The
       court always asked whether “the State and defense counsel believe that [the prospective
       jurors] have been properly admonished as far as [the] Zehr principles.” The State and defense
       counsel always confirmed that they believed the prospective jurors had been properly
       admonished of the Zehr principles.

¶ 10                                          C. The Trial
¶ 11       Defendant’s trial began in March 2015. The State introduced evidence that defendant, his
       brother, and other individuals—including Andrea Griep, Kendra Mellenthin, and Bayleigh
       Hartman—were at a party. Griep and Mellenthin testified that defendant and his brother
       attacked Jason Walton, the victim, and that Walton was not fighting back. Griep and
       Mellenthin testified that defendant shot Walton three times. Griep, Mellenthin, and Hartman
       testified that they never saw Walton threaten, punch, or attempt to strike defendant or his
       brother and that defendant was not defending himself or his brother.
¶ 12       Defendant argued that he acted in self-defense. David McGuire, the defendant’s brother,
       testified that Walton arrived at the party and started a fight with him. David testified that
       defendant intervened in the fight. David stated that, after the fight ended, Walton told
       defendant that defendant had better kill him or that he would return with a gun and kill
       everyone. Defendant then shot Walton.
¶ 13       The jury found defendant guilty of second degree murder and aggravated battery with a
       firearm and also found defendant not guilty of aggravated battery.




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¶ 14                                           D. Sentencing
¶ 15        At the May 2015 sentencing hearing on defendant’s conviction of the Class X offense of
       aggravated battery with a firearm, the State introduced the testimony of Dean Plovich, who
       was the superintendent of the Macoupin County jail. He testified that defendant, while in
       presentence incarceration, fought with another inmate. Plovich also testified that defendant
       bullied other inmates. Corrections officer James McLaughlin testified that defendant was
       involved in a fight with another inmate. Mike Kostich, who maintained the secure phone
       system in the jail, testified that defendant threatened individuals over the jail telephone. The
       State also introduced a victim impact statement from the victim’s father. The State asked the
       trial court to sentence defendant to the maximum sentence of 30 years in prison.
¶ 16        Defendant argued for eight years in prison, two years greater than the statutory minimum
       sentence. Defendant highlighted his rough upbringing, including his stepfather’s threats of
       violence, his mother’s threats of suicide, and the challenges of growing up in foster care.
       Defendant also argued that the facts that led to the shooting were unlikely to reoccur and that
       he was a young man when the shooting occurred.
¶ 17        The trial court took the issue of sentencing under advisement and later in May 2015
       delivered its sentence in a written order. The court vacated defendant’s conviction for second
       degree murder (because it was a lesser-included offense of aggravated battery with a firearm)
       and then sentenced defendant to 17 years in prison for aggravated battery with a firearm. The
       court explicitly rejected the State’s recommendation of 30 years because it ignored some
       mitigating factors in favor of defendant, including his lack of criminal convictions and
       possibility for rehabilitation. The court also rejected defendant’s recommendation of eight
       years because a harsher sentence was required to deter others from committing the same
       crime. The court stated that it considered the following evidence when sentencing defendant:
       (1) the evidence presented at trial; (2) the presentence investigation report and the financial
       impact of incarceration; (3) aggravation and mitigation evidence offered by both parties
       pursuant to statute; (4) jail phone calls made by defendant; (5) defendant’s credibility,
       demeanor, moral character, mentality, social environment, and age; (6) the nature and
       circumstances of the offense; (7) the parties’ arguments; (8) defendant’s statement; (9) victim
       impact statements; and (10) “all relevant factors, even if not specifically mentioned in this
       written decision today.”
¶ 18        In July 2015, defendant filed a motion to reconsider his sentence. Defendant argued that
       the sentence was excessive and that the trial court failed to consider certain mitigating
       factors. The court, in denying defendant’s motion, noted that although the court “emphasized
       specific evidence and arguments, its decision was not limited to those factors. Defendant fails
       to show that this [c]ourt’s sentence was excessive or that it improperly considered,
       weighed[,] or ignored relevant factors.”

¶ 19                                        E. Fines and Fees
¶ 20      The trial court did not impose any specific fines when sentencing defendant. Nonetheless,
       the circuit clerk assessed a $20 violent-crime fee, a $50 anti-crime-fund fine, a $10
       medical-costs fine, a $15 state-police-operations fee, and a $5 court-assessment fee.
¶ 21      This appeal followed.



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¶ 22                                         II. ANALYSIS
¶ 23       On appeal, defendant argues that (1) the trial court failed to properly question the jurors
       on the relevant Zehr principles, (2) his sentence was excessive, and (3) the fines imposed by
       the circuit clerk must be vacated. We address these arguments in turn.

¶ 24                                     A. The Zehr Principles
¶ 25        Citing the Illinois Supreme Court’s recent decision in People v. Sebby, 2017 IL 119445,
       ¶ 8, defendant first argues that his conviction should be reversed and remanded for a new
       trial because the trial court failed to properly question the jurors on the relevant Zehr
       principles. Defendant originally argued that this claim was forfeited but could be reviewed
       under the plain-error doctrine. The State countered that, rather than mere forfeiture,
       defendant affirmatively waived this argument and that plain-error review is not available. We
       agree with the State and conclude that defendant affirmatively waived this argument.
       Accordingly, we decline to review his argument under the plain-error doctrine.

¶ 26                               1. The Zehr Principles and Rule 431(b)
¶ 27       Illinois Supreme Court Rule 431(b) was adopted to ensure compliance with the
       requirements of Zehr, 103 Ill. 2d at 476, 469 N.E.2d at 1063-64. Ill. S. Ct. R. 431(b) (eff.
       July 1, 2012). Rule 431(b) requires that a trial judge ask all potential jurors whether they both
       “understand” and “accept” that (1) the defendant is presumed innocent, (2) the State bears the
       burden of proving the defendant guilty beyond a reasonable doubt, (3) the defendant has no
       obligation to present evidence, and (4) the defendant’s choice to not testify cannot be held
       against him. Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

¶ 28                                  2. Plain Error and Waiver
¶ 29       Plain-error analysis applies to cases involving procedural default, not affirmative
       acquiescence. People v. Bowens, 407 Ill. App. 3d 1094, 1101, 943 N.E.2d 1249, 1258 (2011);
       People v. Townsell, 209 Ill. 2d 543, 547-48, 809 N.E.2d 103, 105 (2004). When defense
       counsel affirmatively acquiesces to actions taken by the trial court, any potential claim of
       error on appeal is waived, and a defendant’s only available challenge is to claim he received
       ineffective assistance of counsel. Bowens, 407 Ill. App. 3d at 1101, 943 N.E.2d at 1258;
       People v. Young, 2013 IL App (4th) 120228, ¶¶ 25-26, 996 N.E.2d 671; People v. Dunlap,
       2013 IL App (4th) 110892, ¶ 12, 992 N.E.2d 184.

¶ 30                                        3. Facts of This Case
¶ 31       In this case, the trial court merely asked whether the prospective jurors “disagree[d]” with
       the Zehr principles. The court did not ask, as is required under Rule 431(b), whether the
       prospective jurors understood and accepted the Zehr principles. Ill. S. Ct. R. 431(b) (eff. July
       1, 2012). This was clear error. Id.; Sebby, 2017 IL 119445, ¶ 8; People v. Wilmington, 2013
       IL 112938, ¶ 32, 983 N.E.2d 1015; People v. Thompson, 238 Ill. 2d 598, 607, 939 N.E.2d
       403, 409-10 (2010).
¶ 32       Nevertheless, as defendant concedes, his counsel affirmatively acquiesced to this style of
       questioning. Here, the trial court always asked whether “the State and defense counsel
       believe that [the prospective jurors] have been properly admonished as far as Zehr

                                                   -5-
       principles.” Defense counsel always responded in the affirmative. This acquiescence by
       defense counsel prevents defendant from arguing this error on appeal. Young, 2013 IL App
       (4th) 120228, ¶¶ 25-26.

¶ 33                                        4. Distinguishing Sebby
¶ 34        In Sebby, 2017 IL 119445, ¶¶ 8, 80, the Illinois Supreme Court reversed and remanded a
       conviction when the trial court merely asked whether the prospective jurors “believed in” or
       “[h]ad any problems with” the Zehr principles, instead of asking whether they “understood”
       and “accepted” them. Sebby was decided pursuant to the plain-error doctrine because counsel
       failed to object to the improper questioning. See Sebby, 2017 IL 119445, ¶¶ 8, 48. This is in
       contrast to the facts of the present case in which defense counsel acquiesced regarding the
       trial court’s improper questioning. Thus, Sebby is distinguishable.
¶ 35        Our conclusion does not lift the requirement that trial judges must strictly comply with
       Rule 431(b). That rule ensures that members of the jury understand and accept the bedrock
       principles of Anglo-American criminal law. Failing to comply with Rule 431(b) could
       threaten the integrity of the jury’s verdict or, at the very minimum, cast doubt on any guilty
       verdict a jury might return. Trial courts must exercise diligence when instructing the jury of
       the Zehr principles as codified in Rule 431(b) and must not deviate in any way from the
       precise language chosen by the Illinois Supreme Court to be in that rule. Likewise, in order to
       protect the record, prosecutors must be aware of the strict requirements of Rule 431(b), so
       that they can alert the trial court to any improper deviation from that rule.

¶ 36                                           B. Sentencing
¶ 37       Alternatively, defendant argues that his sentence was excessive and requests that we
       vacate his sentence and remand for a new sentencing hearing. Defendant asserts that the trial
       court abused its discretion by failing (1) to note several statutory factors in mitigation that
       apply to this case and (2) to consider defendant’s young age. We disagree.
¶ 38       The sentence imposed by the trial court is entitled to great deference and will not be
       reversed on appeal absent an abuse of discretion. People v. Abrams, 2015 IL App (1st)
       133746, ¶ 34, 47 N.E.3d 295. “A sentence within the statutory limits will not be deemed
       excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly
       disproportionate to the nature of the offense.” People v. Higgins, 2016 IL App (3d) 140112,
       ¶ 29, 51 N.E.3d 1012; People v. Fern, 189 Ill. 2d 48, 54, 723 N.E.2d 207, 210 (1999). When
       imposing a sentence, the trial court must consider statutory factors in mitigation and
       aggravation, but the court need not recite and assign a value to each factor it has considered.
       People v. Nussbaum, 251 Ill. App. 3d 779, 781, 623 N.E.2d 755, 757 (1993).
¶ 39       In this case, we conclude that the trial court did not abuse its discretion. The court
       explicitly rejected the State’s request for a 30-year sentence and instead sentenced defendant
       to 17 years in prison. This sentence was well within the statutory limits and was not at great
       variance with the spirit or purpose of the law or the nature of the offense committed. Fern,
       189 Ill. 2d at 54, 723 N.E.2d at 210.
¶ 40       Likewise, in the trial court’s well-reasoned sentencing order, the court stated that it
       considered (1) the evidence presented at trial; (2) the presentence investigation report and the
       financial impact of incarceration; (3) aggravation and mitigation evidence offered by both


                                                  -6-
       parties pursuant to statute; (4) jail phone calls made by defendant; (5) defendant’s credibility,
       demeanor, moral character, mentality, social environment, and age; (6) the nature and
       circumstances of the offense; (7) the parties’ arguments; (8) defendant’s statement; (9) victim
       impact statements; and (10) “all relevant factors, even if not specifically mentioned in this
       written decision today.” Further, when denying defendant’s motion to reconsider sentence,
       the trial court stated that although the court “emphasized specific evidence and arguments, its
       decision was not limited to those factors.” The record clearly demonstrates that the trial court
       did not abuse its discretion when sentencing defendant.

¶ 41                                          C. Fines and Fees
¶ 42       Last, defendant argues that the circuit court clerk improperly fined him and that these
       fines must be vacated without remand. We agree.
¶ 43       In Illinois, the trial court may impose fines as a part of defendant’s sentence. People v.
       Smith, 2014 IL App (4th) 121118, ¶ 18, 18 N.E.3d 912. Circuit clerks lack the judicial
       authority to impose a fine. Id.; People v. Larue, 2014 IL App (4th) 120595, ¶ 56, 10 N.E.3d
       959. When presented with improper fines assessed by the clerk, an appellate court should
       vacate the fines. See Smith, 2014 IL App (4th) 121118, ¶ 18.
¶ 44       In this case, the trial court did not impose any specific fines when sentencing defendant.
       However, the circuit clerk assessed a $20 violent-crime fee, a $50 anti-crime-fund fine, a $10
       medical-costs fine, a $15 state-police-operations fee, and a $5 court-assessment fee. The
       State concedes that those assessments were fines that were improperly imposed by the circuit
       clerk. We accept the State’s concession and vacate those assessments.

¶ 45                                       III. CONCLUSION
¶ 46       For the reasons stated, we affirm defendant’s conviction and his sentence. We vacate the
       $20 violent-crime fee, the $50 anti-crime-fund fine, the $10 medical-costs fine, the $15
       state-police-operations fee, and the $5 court-assessment fee. We award the State its $75
       statutory assessment against defendant as the cost of this appeal. 55 ILCS 5/4-2002 (West
       2014).

¶ 47      Affirmed in part and vacated in part.




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