                           Illinois Official Reports

                                  Appellate Court



                       People v. Scott, 2015 IL App (1st) 131503



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



District & No.        First District, Second Division
                      Docket No. 1-13-1503



Filed                 June 30, 2015
Modified upon
denial of rehearing   September 15, 2015


Decision Under        Appeal from the Circuit Court of Cook County, No. 11-CR-5133; the
Review                Hon. Mary Margaret Brosnahan, Judge, presiding.



Judgment              Affirmed.



Counsel on            Michael J. Pelletier and Patrick F. Cassidy, both of State Appellate
Appeal                Defender’s Office, of Chicago, for appellant.

                      Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                      Mary P. Needham, and Jocelyn M. Schieve, Assistant State’s
                      Attorneys, of counsel), for the People.



Panel                 JUSTICE HYMAN delivered the judgment of the court, with opinion.
                      Justices Pucinski and Mason concurred in the judgment and opinion.
                                             OPINION

¶1       Following a jury trial, defendant Joseph Scott was found guilty of second degree murder
     of Justin Grover and sentenced to 18 years’ incarceration. Scott contends that he was denied
     effective representation because: (i) defense counsel did not present Jermaine Cummings’
     robbery conviction as Lynch character evidence to support Scott’s claim of self-defense
     (People v. Lynch, 104 Ill. 2d 194 (1984)); (ii) defense counsel failed to object to the State’s
     inaccurate statement during rebuttal argument that Scott waited three years to assert
     self-defense; and (iii) defense counsel failed to object to Scott’s impeachment by Scott’s
     prior aggravated unlawful use of a weapon (AUUW) conviction under a statute later ruled
     unconstitutional by the Illinois Supreme Court in People v. Aguilar, 2013 IL 112116.
¶2       We reject each of these contentions. First, Scott’s arguments are forfeited; forfeiture
     aside, we determine that Scott was not prejudiced by counsel’s inactions, and, therefore, his
     ineffective assistance of counsel argument fails the second prong of the Strickland test.
¶3       Scott also argues that in sentencing him to 18 years’ imprisonment, the trial court failed
     to consider statutory mitigating factors and improperly relied on his AUUW conviction as an
     aggravating factor. We conclude that the trial court did not abuse its discretion in sentencing
     Scott. The record reflects that the trial court properly considered mitigation and entered a
     sentence less than the maximum allowed by statute. Furthermore, the trial court specifically
     stated it considered Scott’s record after he was released from parole.

¶4                                        BACKGROUND
¶5       Scott was charged by indictment with 24 counts of first degree murder of Justin Grover
     (720 ILCS 5/9-1(a) (West 2008)); 3 counts of attempted first degree murder of Jermaine
     Cummings (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)); and 1 count of aggravated discharge
     of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2008)). Scott moved to admit evidence of
     various convictions and arrests of Grover and Cummings. Immediately before jury selection,
     the State nol-prossed 17 of 24 counts of first degree murder of Justin Grover and all charges
     related to Cummings. Defense counsel then stated: “We will not call that witness then,”
     apparently referring to the police witness regarding Cummings’ prior convictions.
¶6       Over the defense’s objection, the trial court granted the State’s motion in limine to
     impeach Scott with his AUUW conviction on January 29, 2008, should he testify at trial.
¶7       On the afternoon of May 31, 2009, Scott, Justin Grover, Jermaine Cummings, and Scott’s
     brother, James Scott, were selling marijuana out of a second-floor apartment in a building in
     Chicago’s Englewood neighborhood. An argument among them escalated to a fistfight.
     Henry Scott, another brother who was watching the fight with other bystanders, pulled out a
     gun. The fight ended after Scott grabbed the gun from Henry and shot at Grover and
     Cummings, hitting Grover in the head and thigh. Cummings was not shot. Grover died at the
     scene.
¶8       Jermaine Cummings testified that, in May 2009, he made his living selling “nickel bags”
     of marijuana. On May 31, Cummings and Grover, along with Scott and James, were selling
     marijuana from the apartment when Grover and James began to argue about transactions. The
     argument quickly moved downstairs and outside in front of the building. Cummings followed
     them outside and tried to stop the argument. Scott then came downstairs and also tried to


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       intervene. Grover began to argue with Scott. When Grover and Scott started to shove each
       other, Cummings and James attempted to break up the fight by standing between them.
       Cummings and James began fighting; Cummings pulled out a gun and swung it at James,
       then gave the gun to a bystander and began fistfighting with James. They stopped fighting
       after several minutes. Cummings grabbed Grover and pulled him toward the door of the
       building. Thereafter, Scott and James stood right in front of Cummings and Grover and
       continued arguing with them. Henry then “popped up,” pulled out a gun, and pointed it at
       Cummings. Cummings asked Henry if he was going to shoot the gun, and then Grover told
       him to shoot. Henry said nothing and did not shoot.
¶9         Scott “snatched” the gun from Henry and shot three times. Thinking Grover was next to
       him, Cummings ran away, but when he turned around he noticed Grover lying on the ground
       where they had been standing. Cummings returned to chase James, who had run. Cummings
       caught him and started fighting. The police arrived and took them both to the station.
¶ 10       Cummings denied making threats or threatening movements and testified that he did not
       see Grover make threats or threatening movements.
¶ 11       On cross-examination, Cummings stated he carried a gun for protection. Grover was
       “mad” and threatening James because he thought James had stolen some of his marijuana.
       Cummings did not remember telling two detectives on the day of the shooting that Grover
       “whooped [Scott’s] ass.”
¶ 12       Cummings also testified that he was sentenced to prison in 2011 for the unlawful use of a
       weapon by a felon and, at the time of trial, remained incarcerated; in 2007, he was sentenced
       to three years in prison for possession of a stolen motor vehicle; and in 2003, he was
       sentenced to probation for robbery but in 2004, after violating his probation, the court
       resentenced him to a prison term.
¶ 13       Simone Priest testified that in May 2009 she had been dating Grover for two or three
       years; they had a one-year-old daughter. On May 31, while walking to pick up the daughter,
       she and Amber McCorkle saw Grover and Cummings and spoke to them for a few minutes.
       Ten or fifteen minutes later, on their way back, the women heard arguing and saw
       Cummings, Grover, Scott, James, and Henry standing together. Henry faced Grover,
       Cummings was next to Grover, and James and Scott stood nearby. Priest said she was 10 to
       12 feet away. Henry was pointing a gun at Grover. She heard Grover say “bust it” twice, but
       Henry did not shoot. Scott snatched the gun from Henry and started shooting at Grover.
       Priest heard four or five shots. She ran away, carrying her daughter in her arms, but then gave
       her daughter to someone standing nearby and ran back to Grover, who died shortly after.
¶ 14       Amber McCorkle was walking with Priest after picking up Priest’s daughter when they
       heard male voices arguing. McCorkle saw Grover arguing with Henry and Scott. McCorkle
       heard gunshots but did not see the actual shooting. After the gunshots stopped, McCorkle
       saw Priest tending to the mortally wounded Grover.
¶ 15       The parties stipulated that Henry’s hands tested negative for gunshot residue, indicating
       that he did not shoot a gun.
¶ 16       Scott testified that in May 2009 he was 21 years old, living with his mother, and
       unemployed. He supported himself selling marijuana. On May 31, Scott sold marijuana with
       his younger brother, James, Grover, and Cummings. Grover left the apartment building for a
       short time. While he was gone, he expected James to sell both Grover’s and James’


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       inventory. Grover returned to find that James had sold only his own. Grover became upset
       and started yelling at James. The dispute went outdoors. Scott was protective of James and
       stepped between Grover and James. Grover then punched Scott in the face and they began to
       fistfight. Cummings appeared and pulled a gun from his pocket. James and Cummings then
       argued; Scott did not see Cummings with a gun at that point. Henry stood in the crowd of 70
       to 80 people watching. Grover and Scott stopped fighting but continued to argue when Henry
       pulled out a gun. Cummings was behind Grover. Scott grabbed the gun from Henry and shot
       “two to three times” because Cummings looked like he was going for the gun he had
       brandished earlier.
¶ 17        Scott did not intend to kill Grover or Cummings. He shot at them because in his
       experience, once Henry pulled out the gun, “they’ll shoot their gun.”
¶ 18        After the defense rested, the State introduced a certified statement of Scott’s AUUW
       conviction on January 29, 2008.
¶ 19        The jury was instructed as follows: “[e]vidence that a witness has been convicted of an
       offense may be considered by you only as it may affect the believability of the witness.”
¶ 20        During deliberations, the jury sent a note to the trial court requesting a transcript of
       Scott’s testimony. Neither the State nor Scott objected, and the trial court sent the transcript
       to the jury room.
¶ 21        The jury returned a verdict of guilty of second degree murder.
¶ 22        At Scott’s sentencing hearing, the State introduced Scott’s prior conviction in 2007 on a
       misdemeanor for resisting arrest and a Class 4 felony possession of a controlled substance for
       which he received probation for the felony conviction. Also, the State introduced Scott’s
       2008 probation violation for which he pleaded guilty to AUUW, a Class 4 felony, under the
       statute later found unconstitutional by the Illinois Supreme Court in People v. Aguilar, 2013
       IL 112116. 720 ILCS 5/24-1.6(a)(1) (West 2008). Scott had spent one year imprisoned
       before his release weeks before this incident.
¶ 23        The State read a victim impact statement from Grover’s brother and Simone Priest, both
       addressing the effect of Grover’s death on his young daughter. In mitigation, Scott’s fiancée
       testified that she was pregnant at the time of his arrest and that their daughter had limited
       contact with Scott because of his incarceration.
¶ 24        The trial court sentenced Scott to 18 years’ imprisonment, based on all the factors in
       aggravation and mitigation. The trial court referenced Scott’s revocation of probation that
       resulted in a one-year prison sentence, remarking that Scott had “a very significant and
       escalating criminal background in [a] very short amount of time.”
¶ 25        Scott’s motion to reconsider sentence included an assertion that the trial court improperly
       considered Scott’s AUUW conviction in aggravation.

¶ 26                                            ANALYSIS
¶ 27                                 Ineffective Assistance of Counsel
¶ 28       Under the “strict” test of Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant
       arguing ineffective assistance of counsel must show, in addition to a deficient performance
       below an objective standard of reasonableness, that the defendant suffered prejudice as a
       result. People v. Houston, 226 Ill. 2d 135, 143 (2007). A failure to satisfy both prongs
       precludes a finding of ineffective assistance. People v. Patterson, 192 Ill. 2d 93, 107 (2000).

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       To satisfy the prejudice prong, defendant must show that but for counsel’s deficient
       performance, a reasonable probability exists that the result of the proceeding would have
       been different. People v. Evans, 209 Ill. 2d 194, 219-20 (2004). We may dispose of
       defendant’s ineffective assistance claim by proceeding to the prejudice prong alone. People v.
       Hale, 2013 IL 113140, ¶ 17. Here, even if we assume arguendo that counsel’s inaction
       constitutes deficient performance, we find no prejudice.
¶ 29       Scott alleges three bases for his claim of ineffective representation; the State responds
       that all three were strategic decisions made by defense counsel and did not cause prejudice.

¶ 30                                           Lynch Evidence
¶ 31        Scott’s first assertion of ineffective assistance turns on the failure of defense counsel to
       pursue evidence of Cummings’ violent character. The State charged Scott with first degree
       murder of Justin Grover and attempted murder of Cummings. Before trial, defense counsel,
       in support of Scott’s claim of self-defense, moved that Cummings’ prior robbery conviction
       be admitted to show his aggressive and violent character, as allowed by People v. Lynch, 104
       Ill. 2d 194 (1984). The trial court had yet to rule on this motion when the State nol-prossed
       the charges involving Cummings as a victim. Defense counsel then abandoned the motion.
¶ 32        The Illinois Supreme Court’s opinion in Lynch commands that “when the theory of
       self-defense is raised, the victim’s aggressive and violent character is relevant to show who
       was the aggressor, and the defendant may show it by appropriate evidence.” Id. at 200. This
       evidence may include convictions for crimes of violence. Id. A defendant affirmatively raises
       the issue of self-defense by presenting some evidence regarding: (1) the threat of unlawful
       force against defendant; (2) an imminent danger of harm; (3) an aggressor other than
       defendant; (4) the belief by defendant that danger existed and to avert danger, the kind of
       force used was necessary; and (5) the belief was reasonable. People v. Rivera, 255 Ill. App.
       3d 1015, 1023 (1993). Once defendant presents the facts supporting self-defense, the burden
       of disproving the existence of justification beyond a reasonable doubt passes to the State. Id.
¶ 33        The State characterizes Cummings’ testimony as “nearly identical” to Scott’s and
       maintains their accounts agree. The events leading up to the shooting are not in dispute. An
       argument between two friends migrated outside and then escalated into a fistfight involving
       four individuals. In the course of the argument, Cummings pulled a gun with which he
       attempted to hit James. A crowd of onlookers formed, including Henry, a Scott brother. After
       Henry produced a gun, the mutual combat situation became deadly.
¶ 34        But conflicting testimony emerged regarding whether Cummings had a gun when Scott
       grabbed Henry’s gun. Scott testified that he shot “two to three times” because Cummings,
       who was behind Grover, looked like he was going for the gun Scott saw him with earlier, and
       that Cummings admitted having. Scott stated that he did not intend to kill either Grover or
       Cummings, but that he shot at them because in his experience, once Henry pulled out his
       gun, “they’ll shoot their gun.” On the other hand, Cummings testified that he gave the gun
       away after trying to hit James with it. Thus, the testimony of Scott and Cummings conflicted
       on an essential point and Scott’s claim of self-defense was sufficiently raised.
¶ 35        We turn to the question of defense counsel’s failure to pursue the motion in limine to
       demonstrate Cummings’ violent character with evidence of his armed robbery conviction.
       Scott argues that he was prejudiced by his counsel’s failure. It is true that had defense
       counsel pursued the Lynch motion, and the trial court granted it, the jury would have been

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       informed about Cummings’ armed robbery conviction, and would have received the proper
       instruction regarding its application as evidence of Cummings’ character. While that
       evidence was never presented to the jury, Cummings testified to his being a convicted felon
       who had been imprisoned three different times for different offenses, including violation of
       probation. During cross-examination, Cummings admitted to carrying a gun for protection.
       He also stated that he pulled a gun during the fight and attempted to hit James with it, but
       missed. Grover was “mad” and threatening James. Cummings’ version of the events did
       conflict with Scott’s, as noted above, but the credibility of each witness was for the jury to
       determine. Given this evidence, we find that the jury heard extensive evidence about
       Cummings’ role in the fight. It is the responsibility of the trier of fact to resolve conflicts in
       the testimony, to weigh the evidence, and to draw reasonable inferences therefrom. People v.
       Brown, 2013 IL 114196, ¶ 48. This court does not substitute its judgment for that of the trier
       of fact on issues involving the weight of the evidence or the credibility of the witnesses. Id.
       The jury listened to Cummings and observed his demeanor. We fail to see how defense
       counsel’s pursuit of the Lynch motion, assuming it was successful, would have produced a
       change in the trial’s outcome.
¶ 36       In addition to the testimony about the murder, Cummings testified that he was convicted
       and sentenced to prison in 2011 for the unlawful use of a weapon by a felon and, at the time
       of trial, remained incarcerated. In 2007, he was sentenced to three years in prison for
       possession of a stolen motor vehicle; and in 2003, he was sentenced to probation for robbery
       but in 2004, after violating his probation, the court resentenced him to a prison term. The
       jury’s instruction that “evidence that a witness has been convicted of an offense may be
       considered by you only as it may affect the believability of the witness” limited the evidence
       of Cummings’ prior convictions as probative of his credibility, not as proof of his violent
       character.
¶ 37       Moreover, Scott’s argument that the jury’s note requesting a transcript of Scott’s
       testimony indicated a “reasonable probability” the jury would have found the State did not
       meet its burden of disproving self-defense is mere speculation. We will not assume that this
       request indicates the jury’s indecision as opposed to attention to detail (the “jury’s clear focus
       on Scott’s testimony” as stated in his brief). See People v. Banks, 287 Ill. App. 3d 273, 288
       (1997) (jury’s written query during deliberations could have as easily evidenced its careful
       consideration of all evidence leading to its guilty verdict as it could have indicated jury
       confusion).
¶ 38       Therefore, we do not find any “reasonable probability that the result of the proceeding
       would have been different” had defense counsel pursued the motion in limine seeking to
       introduce Lynch evidence. Evans, 209 Ill. 2d at 220.

¶ 39                                     Scott’s Prior Conviction
¶ 40       In January 2008, Scott was convicted of AUUW, a Class 4 felony, under the statute later
       ruled unconstitutional by the Illinois Supreme Court in People v. Aguilar, 2013 IL 112116.
       720 ILCS 5/24-1.6(a)(1) (West 2008). At trial in 2011, after Scott testified, the State
       introduced a certified copy of the conviction. Over defense counsel’s objection, the trial court
       granted the State’s motion in limine to impeach Scott with his AUUW conviction on January
       29, 2008, but Scott did not preserve his objection in his amended motion for a new trial.


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¶ 41       A contemporaneous objection during the trial will not preserve an issue for review; the
       defendant also must raise the issue in a written posttrial motion so as to give the court an
       opportunity to grant a new trial, if the relief would be warranted. See People v. Lewis, 223 Ill.
       2d 393, 400 (2006); People v. Enoch, 122 Ill. 2d 176, 186 (1988) (“Both a trial objection and
       a written post-trial motion raising the issue are required for alleged errors that could have
       been raised during trial.” (Emphases in original.)). Thus, Scott forfeited the issue. The
       question presented, then, becomes the effect of defense counsel’s failure to include the
       objection in the amended motion for a new trial.
¶ 42       Where the error complained of rises to constitutional magnitude, the error cannot be
       denominated harmless unless it is harmless beyond a reasonable doubt. People v.
       Martin-Trigona, 111 Ill. 2d 295, 304 (1986). In Martin-Trigona, the Illinois Supreme Court
       held that convictions obtained in violation of a constitutional right (e.g., right to counsel)
       cannot be used for impeachment purposes. Impeachment by the use of a void conviction,
       here Scott’s AUUW conviction, cannot be justified; nevertheless, as we explained in People
       v. Woollums, 143 Ill. App. 3d 814 (1986):
                    “We must therefore assume that the introduction of the conviction at trial was
                error, but the more important question is whether it was reversible error. We think
                not. A reviewing court may find that the denial of a Federal constitutional right did
                not contribute to a defendant’s conviction, provided it can determine that the error
                was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18
                ***.) That is precisely the situation here.” Id. at 815-16.
       The jury knew of Scott’s conviction by way of the admission of a certified copy after Scott
       testified and the defense rested. He was not cross-examined about it, nor did the State argue
       that Scott’s credibility had been impeached as a result of the conviction. The jury instruction
       given regarding credibility of witnesses appears general and short, specifically stating that
       evidence of “a defendant’s prior conviction” must not be considered as evidence of guilt of
       the charged offense. Under these circumstances, we are convinced any error was harmless
       beyond a reasonable doubt.

¶ 43                                     Prosecutorial Misconduct
¶ 44       Prosecutors are afforded wide latitude in closing argument. In reviewing comments made
       at closing argument, this court asks whether or not the comments made at closing argument
       “engender substantial prejudice against a defendant such that it is impossible to say whether
       or not a verdict of guilt resulted from them.” People v. Wheeler, 226 Ill. 2d 92, 123 (2007).
       We view the closing arguments of both the prosecutor and the defense attorney as a whole
       for context rather than focus on particular phrases or remarks. See Perry, 224 Ill. 2d at 347.
       To warrant reversal and a new trial, the improper remarks in closing argument must
       constitute a material factor in defendant’s conviction. See Wheeler, 226 Ill. 2d at 123.
¶ 45       Scott asserts prejudicial error occurred during the State’s rebuttal argument when it
       argued that Scott fabricated his self-defense theory at trial three years after the shooting.
       While it is true that the prosecutor’s waiting until rebuttal argument deprived defense counsel
       of the chance to respond, we do not believe this remark constitutes a material factor in the
       jury’s verdict of guilty of second degree murder. See id. The verdict of guilty of second
       degree murder indicates the jury accepted at least one proposition supporting the
       lesser-included offense: either that Scott acted “under a sudden and intense passion resulting

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       from serious provocation by the deceased” or that he believed that circumstances existed
       which would justify the deadly force he used, even if that belief was unreasonable. This,
       together with the jury request for a transcript of Scott’s testimony, necessarily indicates that
       the jury rendered a considered verdict. We do not find substantial prejudice resulted.
¶ 46       In conclusion, Scott has not established prejudice or shown a reasonable probability that,
       but for counsel’s deficient performance, the jury would have acquitted him.

¶ 47                                         Excessive Sentence
¶ 48       The trial court must consider all factors of mitigation and aggravation. People v.
       McWilliams, 2015 IL App (1st) 130913, ¶ 27. Appellate courts treat sentencing decisions
       within the statutory range with great deference. People v. Hill, 408 Ill. App. 3d 23, 29 (2011).
       We reduce a sentence when the record shows that the trial court abused its discretion. People
       v. Streit, 142 Ill. 2d 13, 19 (1991). The reviewing court may not reverse the sentencing court
       just because it would have weighed the factors differently. Id.
¶ 49       The sentencing range for second degree murder is a determinate sentence of not less than
       4 years and not more than 20 years. 730 ILCS 5/5-4.5-30 (West 2010). Scott asks that his
       sentence of 18 years’ imprisonment be reduced because the trial court relied on his void prior
       conviction for AUUW as an aggravating factor. As noted above, Scott had been convicted of
       AUUW under the statute later found unconstitutional by the Illinois Supreme Court. See
       People v. Aguilar, 2013 IL 112116.
¶ 50       On point is the decision in People v. Ware, 2014 IL App (1st) 120485, which held: “based
       on this record, we see no reason to remand for resentencing based on a claim that two of
       defendant’s prior convictions may now be void under Aguilar. Neither of the prior
       convictions for AUUW was an element of the charged offenses (compare People v.
       McFadden, 2014 IL App (1st) 102939), and neither conviction served as a basis for any
       statutory enhancement or extended-term sentence in this case.” Id. ¶ 35. As in Ware, the
       sentencing court considered all statutory factors in mitigation and aggravation, as well as “all
       the information contained in the presentence investigation as it [is] amended.” The trial court
       enumerated the factors in mitigation and aggravation, addressing each in turn.
¶ 51       We find People v. Fischer, 100 Ill. App. 3d 195 (1981), cited by Scott, distinguishable. In
       Fischer, the defendant asserted that the trial court relied on an improper factor in sentencing
       him to seven years’ imprisonment for voluntary manslaughter. Id. at 199. The defendant
       pointed out that, at the sentencing hearing, the court heard that the defendant had a prior
       conviction for possession of marijuana, and that the statute under which the defendant
       previously had been convicted was later declared unconstitutional. Id. at 199-200. The
       Fischer court held that the sentencing court abused its discretion by improperly relying on
       the marijuana conviction. Id. at 200. But, in Fischer, the trial court knew at the time of
       sentencing that the statute had been declared unconstitutional, yet relied on the void
       conviction in sentencing. Id. Scott’s sentence occurred on February 22, 2013, seven months
       before our supreme court issued its decision in Aguilar. Thus, Fischer is inapposite.
¶ 52       Scott also argues that the trial court failed to consider statutory mitigating factors. We
       presume a trial court has considered all of the relevant factors in mitigation before it, and
       without affirmative evidence that the sentencing court failed to consider factors in mitigation,
       that presumption cannot be overcome. People v. McWilliams, 2015 IL App (1st) 130913,
       ¶ 27. We find that the trial court did not refuse or fail to consider the mitigating factors.

                                                  -8-
¶ 53        As already noted, the trial court took the time and effort to give reasons for its ruling
       regarding each mitigating and aggravating factor. Specifically addressing the mitigating
       factors, the trial court explained that in its view “strong provocation” did not exist (730 ILCS
       5/5-5-3.1(a)(3) (West 2008)) because a bar or street fight does not constitute strong
       provocation to mitigate a shooting. The mitigating circumstances of mutual combat and
       self-defense already factored into the jury’s verdict of the lesser offense of second degree
       murder. See People v. Garibay, 366 Ill. App. 3d 1103, 1110 (2006) (defendant’s plea of
       guilty to second degree murder apparently based on theory of mutual combat, one of
       recognized forms of “serious provocation” sufficient to reduce first degree murder to second
       degree murder). In determining an appropriate sentence, “[t]he mere fact that a defendant
       acts under a strong provocation should be entitled to little or no weight because it does not
       differentiate him or her from any other defendant convicted of second degree murder” under
       the statute. (Emphasis omitted.) Id. But, the Garibay court continued: “On the other hand, the
       nature and extent of the provocation in a particular case” could be germane to the sentencing
       decision. (Emphasis in original.) Id. “Consideration of circumstances that are necessarily
       present in every instance of a particular offense–whether aggravating or mitigating–would
       undermine individualized sentencing and would tend to skew sentencing decisions
       systematically toward one end or the other of the range established by the General
       Assembly.” (Emphasis added.) Id.
¶ 54        Scott criticizes Garibay and urges us to follow People v. Hall, 159 Ill. App. 3d 1021
       (1987), decided 20 years earlier. There, we found that the trial court erred in stating that it
       would not consider, for purposes of sentencing, mitigating factors which reduced the murder
       charge to voluntary manslaughter. Id. at 1032. The Hall opinion quoted the trial court’s
       remarks during the sentencing hearing: “ ‘Credit has already been given to Mr. Hall for those
       mitigating factors that reduce this crime down from murder to voluntary manslaughter and it
       is not the intent of this Court to let him use those chips twice.’ ” Id. at 1031. Thus, in Hall,
       the trial court erred when it refused to consider this mitigating factor. That error, however,
       was harmless because the trial court properly considered other mitigating and aggravating
       factors. Id.
¶ 55        Here, the trial court did not find “substantial grounds tending to excuse or justify the
       defendant’s criminal conduct” (730 ILCS 5/5-5-3.1(a)(4) (West 2008)). The record does not
       reflect that the trial court refused to consider this mitigating factor, but elected to give it little
       weight, which, under the circumstances presented here, it was entitled to do. Similarly,
       section 5-5-3.1(a)(7) of the statute addresses whether a defendant has no history of prior
       delinquency or criminal activity or has led a law-abiding life for a substantial period of time
       before the commission of the crime for which he or she is being sentenced (730 ILCS
       5/5-5-3.1(a)(7) (West 2008). The trial court stated that it would not weigh Scott’s
       misdemeanor conviction from 2007 very significantly, noting that Scott received probation
       for a Class 4 possession of a controlled substance conviction, violated his probation with the
       AUUW conviction, was sentenced to prison, and less than two months after his release from
       prison, was charged with murder. The sentencing court placed no emphasis on the AUUW
       conviction itself; rather, it relied on Scott’s pattern of behavior after his release from parole;
       i.e., less than two months later, Scott was selling drugs, admittedly buying guns, and entering
       into a fatal street brawl.



                                                     -9-
¶ 56       Therefore, we find the sentencing court did not abuse its discretion by imposing the
       18-year sentence, even though near the upper range of permissible sentences. As noted in
       Hall, primary factors in sentencing are “the gravity of the offense and the circumstances
       surrounding its commission.” Hall, 159 Ill. App. 3d at 1031. Ultimately, a reviewing court
       may not reweigh aggravating and mitigating factors in reviewing a defendant’s challenge to
       his or her sentence, and it may not substitute its judgment for the trial court merely because it
       could or would have weighed the factors differently. People v. Jones, 376 Ill. App. 3d 372,
       394 (2007). Accordingly, we affirm Scott’s sentence.

¶ 57                                         CONCLUSION
¶ 58      We affirm the circuit court.

¶ 59      Affirmed.




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