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                               Appellate Court                         Date: 2019.08.28
                                                                       17:29:38 -05'00'



                   People v. Phagan, 2019 IL App (1st) 153031



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



District & No.      First District, Second Division
                    Docket No. 1-15-3031



Filed               April 30, 2019
Supplemental and
modified opinion
upon denial of
rehearing filed     July 16, 2019



Decision Under      Appeal from the Circuit Court of Cook County, Nos. 11-CR-17961,
Review              11-CR-17962; the Hon. Mary M. Brosnahan, Judge, presiding.



Judgment            Affirmed in part and vacated in part.


Counsel on          James E. Chadd, Patricia Mysza, and Stephen L. Gentry, of State
Appeal              Appellate Defender’s Office, of Chicago, for appellant.

                    Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                    Joseph Alexander, and Nina Kelly, Assistant State’s Attorneys, of
                    counsel), for the People.
     Panel                     JUSTICE HYMAN delivered the judgment of the court, with opinion.
                               Presiding Justice Mason and Justice Pucinski concurred in the
                               judgment and opinion.


                                               OPINION

¶1         Shortly after Terrell Phagan had stolen a green van at gunpoint, he tried to elude Chicago
      and Illinois State Police officers during an 11-mile chase through the streets of Chicago. During
      the officers’ pursuit, Phagan shot at them several times. Eventually, officers arrested Phagan
      after pinning the van between one of their cars and a pole.
¶2         The State brought two cases against Phagan. In No. 11 CR 17961, the State charged Phagan
      with offenses related to the car chase and his use of a gun against the officers. In No. 11 CR
      17962, the State charged Phagan with offenses relating to his theft of the van and his use of a
      gun. The trial court joined the cases for a jury trial.
¶3         In case number 17961, the jury found Phagan guilty of two counts of aggravated discharge
      of a firearm and two counts of attempted murder of a peace officer. The trial court merged the
      aggravated discharge counts into the attempted murder counts and sentenced Phagan to two
      concurrent terms of 50 years. That sentence consisted of a 30-year base sentence for the
      attempted murder of a peace officer coupled with a 20-year firearm add-on. See 720 ILCS 5/8-
      4(c)(1)(A), (C) (West 2014).
¶4         In case number 17962, the jury found Phagan guilty of armed robbery, aggravated
      vehicular hijacking, and aggravated possession of a stolen motor vehicle. The trial court
      imposed concurrent 21-year sentences for each of the three offenses.
¶5         The trial court then ordered the concurrent 50-year sentences from one case and concurrent
      21-year sentences from the other to run consecutively, bringing Phagan’s sentence to a total of
      71 years.
¶6         Phagan’s brief contains no argument that the State failed to prove him guilty beyond a
      reasonable doubt, and at oral argument his counsel confirmed that he is not challenging the
      sufficiency of the evidence against him. But he raises four arguments about the fairness of the
      trial proceedings and sentencing: (i) the State made a series of improper arguments in closing
      statements and rebuttal that deprived him of a fair trial; (ii) the 20-year firearm enhancement
      does not apply to attempted murder of a peace officer; (iii) the trial court erred by imposing
      discretionary consecutive sentences; and (iv) Phagan’s 71-year sentence is excessive.
¶7         We find no error in the conduct of closing arguments or in the imposing of consecutive
      sentences. We do, however, find error in applying both the 20-year firearm enhancement and
      the enhanced sentencing range for attempted murder of a peace officer and vacate the 20-year
      firearm enhancement. We do not fault the trial judge, who followed published decisions from
      this district in arriving at her decision. But on de novo review of the statutory text, we disagree
      with the decisions of our court for reasons we explain. We vacate the 20-year firearm
      enhancement but otherwise affirm Phagan’s conviction and sentence.




                                                   -2-
¶8                                              Background
¶9         At about 2 a.m. on October 10, 2011, Anthony Wilson was at his aunt’s house waiting for
       his child’s mother to arrive. He was in the driver’s seat of a green 1999 Chevrolet Savannah
       van, talking through the window with a friend. A gray Chevrolet Malibu drove up on the
       driver’s side and “asked did [they] have any loud,” a term used for marijuana. Wilson told the
       passenger of the Malibu that he had no marijuana, and the Malibu drove away, turning left
       onto South Normal Avenue.
¶ 10       Wilson’s friend left to go across the street to his house, and the gray Malibu returned. The
       same man who had asked about the marijuana got out, walked up to Wilson’s window, and
       pointed “like a silver .38 or .357” revolver at him. While Wilson was still seated in the van,
       the man took about $100 and Wilson’s debit card. Wilson identified Phagan in court as that
       man.
¶ 11       Phagan then told Wilson to get out, which he did. The driver of the Malibu started looking
       through the van. Phagan told Wilson to open up the back, revealing six speaker boxes that
       “covered up the back, back door.” After seeing the speakers, Phagan told Wilson to “go on
       down the street,” and Wilson ran four or five houses down as he “hollered [his] cousin’s name”
       so that someone would come outside. As he ran he heard a gunshot, saw a flash from a gun in
       Phagan’s direction, and heard “a ding” of metal hit the gate of a fence nearby.
¶ 12       Wilson saw Phagan and the driver get back in the Malibu, so he started to run back to his
       van. But the Malibu made a U-turn toward the van, and Wilson ran to his friend’s house, where
       he hid behind some bushes. Wilson watched Phagan get out of the Malibu and into his van,
       driving up Normal and turning onto 100th Street. Wilson called the police.
¶ 13       Chicago police officers Sean Carroll and Michael Pantano, on patrol nearby in an
       unmarked car, received a call for a “robbery in progress that was reading like a carjacking.”
       On their way to the call, they saw the van and Malibu described by the dispatcher. The officers
       followed both onto the entrance ramp of Interstate 57 located at 99th Street and Halsted Street.
       The van and Malibu took the split toward Interstate 94 heading to Indiana; they were traveling
       next to each other going 15 to 20 miles per hour below the speed limit. Eventually, the officers
       activated their emergency lights, and both the van and the Malibu pulled over.
¶ 14       Officer Carroll got out of the car, and as soon as he set foot on the pavement, both the van
       and the Malibu drove away. The Malibu continued on I-94, and the van took the feeder ramp
       off I-94 onto Stony Island Avenue. The officers stayed with the van. At the intersection of
       Stony Island and 95th Street the van attempted a U-turn. As the van turned, Carroll could see
       the driver and identified him in court as Phagan. The van then headed back toward I-94, and
       Carroll saw “an object which appeared to be a gun come out of the driver’s side window of the
       van pointing directly back at [their] patrol vehicle.” Carroll heard “two loud pop sounds, which
       [he] associated with—as being shots fired.” Concrete shot up into the air, which Carroll
       believed was a result of a bullet impacting the street.
¶ 15       Carroll and Pantano followed the van back onto I-94 toward downtown. At about 87th
       Street, Carroll saw the back driver’s side window of the van shatter “with the sound of a loud
       pop.” He was able to see the driver’s right hand “come back up towards the front of the [van]
       holding what appeared to be the gun.” The officers continued following the van as it exited I-
       94 at 71st Street. Other responding officers joined Carroll and Pantano. Carroll and Pantano
       maintained their position as the lead pursuit car, zig-zagging through the streets of Chicago
       heading in a generally northeast direction. Carroll and Pantano eventually lost sight of the van

                                                  -3-
       near the intersection of Pershing Road (39th Street) and Vincennes Avenue. Neither Carroll
       nor Pantano fired their weapons.
¶ 16       Sergeant James Walsh, who had arrived at Pershing and Vincennes, watched the chase
       unfold and saw “the individual in the van stick his arm out” holding what appeared to be a
       weapon. Walsh fired twice at the driver, who was the only person he could see in the van,
       causing the van to move around him to head east on Pershing.
¶ 17       Chicago police officers Steve Jarosz and Ryan Harty also monitored the progress of the
       chase on the radio; they relocated to 38th Place and Vincennes and saw police cars following
       a green van. Eventually, at about 38th Place and Langley Avenue, Jarosz and Harty took over
       as lead car. At the time they were able to see that someone was in the driver’s seat, but not the
       individual’s face.
¶ 18       While Jarosz and Harty were still on Langley, “[a]t that point, it was one shot, and that
       shot, just by [Jarsoz’s] experience, and the echo came right at [them], at [their] car, above
       [their] car. [Jarosz] didn’t know where the shot went, but that’s what happened, and the car
       continued *** southbound on Langley.” Jarosz could tell that the shot came from directly in
       front of them and could not see any cars other than the van. Jarosz heard shots from other
       directions. The van turned east onto Pershing, and Jarosz and Harty pulled back from their
       pursuit. Neither officer fired.
¶ 19       Officer Jaysen Orkowski had been parked directly across a small grassy area from where
       Jarosz and Harty joined the chase. He saw the van turn south onto Langley from 38th Place,
       and his partner “floored it” to try to intercept the van. Orkowski saw the driver “stick out a
       gun,” a silver revolver, over his left shoulder pointing it at the car behind the van. Orkowski
       fired three times, but the van did not stop. Orkowski and his partner, while not the lead car,
       joined the chase as the van turned east onto Pershing.
¶ 20       Officers Eric Taylor and Ayokunle Akinbusuyi arrived at the intersection of Pershing and
       Langley. Taylor and Akinbusuyi started to turn north onto Langley when Taylor saw the driver
       in the van “reach over out of the window” with what appeared to be a gun and heard what he
       believed to be a gunshot. Taylor and Akinbusuyi backed up onto Pershing; the van started
       driving toward them. Taylor saw the van’s driver reach his arm toward an open window “and
       [he] believe[d] [he] heard a gunshot.” Despite Taylor firing six shots and Akinbusuyi firing
       three to five shots, the van did not stop and continued east on Pershing.
¶ 21       The van reached 750 East Pershing, where Sergeant James Walsh was parked. Walsh heard
       “a large amount of gunfire” and saw the van coming toward him “a matter of seconds” later.
       Walsh also fired into the van, but the van did not stop.
¶ 22       Less than a block away, Officer Angelo New and his partner had arrived at the intersection
       of Pershing and Cottage Grove Avenue. After hearing “multiple gunshots to the west,” New
       saw the van driving toward him at a “high rate of speed.” New fired one round from his gun
       into the van, which caused the driver to almost lose control but ultimately did not deter him.
       New watched as the van and “a barrage of police cars” continued driving east.
¶ 23       Lieutenant Christopher Kapa, who had been parked next to New and his partner, took over
       as the lead pursuit car. The van went from Pershing onto Lake Shore Drive, eventually taking
       the exit for the Interstate 55 ramp going west. Instead of continuing on the interstate, the van
       exited at State Street, turning south. After zig-zagging from State Street, to 26th Street, to



                                                   -4-
       Martin Luther King Jr. Drive, to 29th Street, the van eventually came to a stop in a parking lot
       at 3001 S. Vernon Avenue.
¶ 24       Officer Pablo Mariano’s vehicle, driven by Sergeant Lopez, had become the lead pursuer
       at about 31st Street and Lake Shore Drive. As the van exited I-55 at State Street, he saw the
       driver “motion[ ] several times with his right hand an object, chrome object, which he was
       driving, he was attempting to aim at us several times.” Mariano fired twice at the van to no
       avail. As the van turned from 26th Street onto Martin Luther King Jr. Drive, Lopez attempted
       to bump it with his car. The van wobbled but continued to the S. Vernon parking lot, where
       Lopez bumped the van again, this time wedging it between his car and a pole. Lopez testified
       that he pulled Phagan out of the driver’s seat and placed him under arrest.
¶ 25       Chicago police forensic investigator Carl Brasic arrived at the scene and collected evidence
       from the interior of the van. He recovered “a six-inch barreled 357-magnum revolver on the
       floor of the driver’s seat.” Five of the six bullets had been fired. Brasic also swabbed the gun
       for DNA. The parties stipulated that Illinois State Police forensic analyst Ryan Paulsen would
       testify that the DNA on the revolver was a mix of at least two people but was “potentially
       incomplete and not suitable for comparison.”
¶ 26       Through a combination of testimony and stipulations, the record indicates that (i) no
       fingerprints suitable for comparison were found on the cartridge casings from the revolver in
       the van; (ii) DNA swabs from inside the van revealed a mixture of at least three people and
       one profile from which Phagan could be excluded; (iii) gunshot residue (GSR) tests of
       Phagan’s hands indicated that he “may not have discharged a firearm” and, if he did, “then the
       particles were removed by activity, not deposited, or not detected”; (iv) the GSR test to the
       front driver area of the van indicated that the area had come into contact with GSR or was in
       the environment of a discharged firearm; and (v) officers recovered two shirts from Phagan,
       one of which was negative for GSR and one of which had GSR particles in the shirt’s upper
       area. (The presence of GSR does not necessarily mean that a person fired a gun.)
¶ 27       Forensic analysis also went to each location on the route of the chase where officers had
       fired their guns. In total, at least 18 cartridge casings and bullets were traced to the various
       officers’ firearms. Of those, five bullets were found in the van. Four were conclusively linked
       to officer firearms, and one was consistent with a 9 millimeter/.38 caliber, but could not be
       definitely traced to an officer’s gun.
¶ 28       Phagan testified in his own defense. He explained that he was in the area of 10010 South
       Normal at about 2 a.m. on October 10, 2011, to buy a McDonald’s Monopoly game piece from
       a man he knew only as “Black Boy.” Black Boy had arranged the purchase of the highly
       coveted Boardwalk playing piece from an unknown woman for $2500 to $3500. Phagan
       arrived in the gray Malibu with his friend Jay, but the woman had not yet appeared.
¶ 29       After being told to wait for 20 to 30 minutes, Jay started playing dice with the five or six
       other men that were gathered there, including Anthony Wilson. After Jay won some money
       and it became apparent that the woman with the Monopoly piece was not coming, Phagan and
       Jay tried to leave. One of the men, apparently disgruntled over Jay’s success at dice, told them
       they could not leave, pulled out a gun, and held it to Phagan.
¶ 30       Phagan was able to push the man with the gun away and run behind a car. As soon as
       Phagan pushed him, the man fired a shot. As Phagan hid, he heard tires screeching and saw the
       gray Malibu drive away. Thinking Jay had left him, Phagan got into the green van because he
       “felt like it was [his] only way off the block.” As Phagan attempted to maneuver the van, he

                                                  -5-
       heard another shot, and the passenger window blew out. Phagan was able to put the van into
       drive when the man with the gun came up to the passenger side, put his arm in the van, and
       fired the gun again.
¶ 31       Phagan pulled onto 100th Street and saw the gray Malibu parked there, Jay in the driver’s
       seat. They both drove off and eventually made it to the expressway where they were pulled
       over by the police. After one of the officers got out of the police car, Phagan drove off again.
       Asked to explain why he fled from police he said: “I was thinking when I had pulled off the
       block when the guy stuck his arm in the window and I heard a thump, I thought I had ran, like,
       maybe his leg over or something ***. So when I was on the expressway and the police pulled
       me over, I’m thinking, like, okay, I don’t want to go back to jail.” Phagan explained that, during
       the time the police were chasing him, he was able to hear sirens and “some shots” but he did
       not remember most of the chase. Phagan denied ever shooting at the officers and testified that
       the gun found in the van was the same gun that the man had used to shoot at him back on South
       Normal.
¶ 32       During closing arguments, while discussing the firearm evidence collected, the State
       argued: “The Defendant is literally caught at 3001 South King in the stolen vehicle with a
       smoking gun.” Defense counsel objected, and the court overruled him. Defense counsel then
       presented his closing argument to the jury, repeatedly arguing that the officers have “got to be
       justified taking 25 shots at the van.” Counsel argued that many of the officers’ explanations
       about hearing gunshots from the van were to “justify [the officers’] actions” because “when
       they’re [sic] shots fired, and the officers get into position pretty much have a green light to fire
       shots and that’s what it comes down to.” In rebuttal, the State argued that it did not matter that
       there were minor inconsistencies in some of the officers’ testimony because “[w]ouldn’t it be
       suspect if it was all exactly the same, if everybody saw the same thing[?] They’re just doing
       their job. They’re out there serving and protecting. We ask them to do that. We need the
       police.” Again, defense counsel objected, and the trial court overruled his objection. Finally,
       in regard to Phagan’s testimony, the State argued in rebuttal: “Again make absolutely no
       mistake about it. It’s ridiculous what he told you. Don’t believe it for a second. He has so much
       to lose. That’s why he’s doing it.” Again, the trial court overruled defense counsel’s objection.
¶ 33       In case number 17961, the jury found Phagan guilty of attempted first degree murder of
       Officers Carroll and Pantano. The jury also found, in response to a special jury question, that
       the State had proved that Phagan personally discharged a firearm during each of those offenses.
       The jury also found Phagan guilty of two counts of aggravated discharge of a firearm, again as
       to Officers Carroll and Pantano.
¶ 34       In case number 17962, the jury found Phagan guilty of armed robbery and aggravated
       vehicular hijacking of Anthony Wilson, but the jury found that the State had not proven that
       Phagan personally discharged a firearm during those offenses. The jury also found Phagan
       guilty of aggravated possession of a stolen motor vehicle.
¶ 35       In a motion for a new trial, Phagan reasserted the argument that he had made before trial
       that it was error to allow the State to seek enhancements for attempted murder based on both
       the status of the victims as peace officers and the discharge of a firearm. The motion also
       argued that the State improperly referred to a “smoking gun” during its closing argument and
       improperly bolstered the credibility of the police officers’ testimony during rebuttal. The
       motion made no mention of defense counsel’s objection to the State’s comments about
       Phagan’s testimony. After hearing argument, the court denied the motion.

                                                    -6-
¶ 36        At sentencing, Phagan’s mother testified that she and Phagan’s grandmother had shared
       the responsibility of raising him. Phagan had made it to eighth grade and then dropped out. He
       worked for his uncle doing landscaping for about two-and-a-half years. At the end, she asked
       the judge to be lenient because “Terrell made a mistake, and I think we are all entitled to make
       a mistake.”
¶ 37        The State, in aggravation, called Detective Grossman from the Sauk Village Police
       Department. He testified that in July of 2008, he went to a gas station in response to a call
       about a stolen vehicle in the parking lot. When he got there, he tried to get the two occupants
       out of the car, but they refused and drove off. The driver drove erratically, including through
       construction zones, sometimes at speeds “[i]n excess of 110 miles an hour.” The passenger
       leaned out and fired a gun at the officer, causing him to lose control of his car and crash. The
       second police car also eventually dropped out of the pursuit. Officers found the stolen car
       abandoned in Chicago. After Phagan was arrested, he admitted to officers that he had been the
       driver of the fleeing car and knew that it had been stolen. Phagan also admitted that he knew
       the passenger had a gun.
¶ 38        Referring to Phagan’s 2008 case, the court considered it “eerily similar to the one here
       before the court” and noted that Phagan had been on parole for that offense when he committed
       this one. And the court could not say that Phagan’s conduct would be unlikely to recur.
       Accordingly, the trial court found that Phagan’s behavior put “countless people” in harm’s way
       and that Phagan made “decision after decision” to keep going even though he could have
       stopped at any time.
¶ 39        In case number 17961, the court imposed a 50-year sentence on each count of attempted
       first degree murder. Each sentence consisted of 30 years for the attempted murder of a peace
       officer plus a 20-year firearm enhancement for Phagan’s personal discharge of a firearm. The
       court ordered each 50-year sentence to run concurrently. The court previously had merged the
       aggravated discharge offenses into the attempted murder offenses.
¶ 40        In case number 17962, for each of the three offenses on which the trial court found Phagan
       guilty, the court imposed a 21-year sentence to run concurrently.
¶ 41        The trial court found that “[Phagan’s] actions ha[ve] put countless individuals in danger,
       both from what occurred in 2008 and certainly with the continuing course of criminal conduct
       in this case. So it is the court’s view that consecutive sentences in this case are required to
       protect the public from further criminal conduct by the defendant.” The court ordered the 50-
       year sentence in case number 17961 to run consecutively to the 21-year sentence in case
       number 17962, leading to a total sentence of 71 years in the Department of Corrections.
       Phagan’s motion to reconsider sentence was denied.

¶ 42                                            Analysis
¶ 43                                    Prosecutorial Misconduct
¶ 44       Phagan takes issue with three statements the prosecutor made during closing arguments.
       He claims that the State misstated the evidence when it argued “[t]he Defendant is literally
       caught at 3001 South King Drive in the stolen vehicle with the smoking gun.” He claims that
       the State, in rebuttal, improperly vouched for its police officer witnesses when it argued
       “[t]hey’re just doing their job. They’re out there serving and protecting. We ask them to do
       that. We need the police.” Finally, he claims that the State improperly disparaged his own


                                                  -7-
       testimony when it argued “it’s ridiculous what [Phagan] told you. Don’t believe it for a second.
       He has so much to lose. That’s why he’s doing it.”
¶ 45       The State contends that all of its closing arguments were proper and any error would be
       deemed harmless. As to the “smoking gun” argument, the State asserts that the term was used
       figuratively and was supported by the evidence because Phagan was found with a gun after
       officers saw him fire one. As to Phagan’s bolstering claim, the prosecutor was simply stating
       common knowledge supported by the facts and in response to defense counsel’s argument
       implying that the officers had lied to justify their actions. Finally, as to Phagan’s claim that the
       State disparaged his testimony, the State initially argues that Phagan forfeited the claim by not
       including it in Phagan’s posttrial motion; on the merits, the State contends commenting on a
       defendant’s credibility is fair game and material inconsistencies in the testimony supported the
       comments.

¶ 46                                          Standard of Review
¶ 47        Both parties acknowledge that there is a “conflict” or “split in authority” surrounding the
       standard of review for claims of prosecutorial misconduct in closing argument. In 2007, the
       Illinois Supreme Court said, “Whether statements made by a prosecutor at closing argument
       were so egregious that they warrant a new trial is a legal issue this court reviews de novo.”
       People v. Wheeler, 226 Ill. 2d 92, 121 (2007). Before that, our supreme court had said “[t]he
       regulation of the substance and style of the closing argument is within the trial court’s
       discretion, and the trial court’s determination of the propriety of the remarks will not be
       disturbed absent a clear abuse of discretion.” (Internal quotation marks omitted.) People v.
       Blue, 189 Ill. 2d 99, 128 (2000). These seemingly contradictory statements have led to
       differences of opinion among the appellate court districts as to which decision controls. See
       People v. Green, 2017 IL App (1st) 152513, ¶ 80 (collecting cases).
¶ 48        Phagan argues that under any standard of review the prosecutor’s arguments constitute
       error. The State argues that any errors were harmless and asks us to adopt an abuse of discretion
       standard to review the initial question of whether there was error at all. We agree that the abuse
       of discretion standard is the correct one and join the decisions of other courts that have held
       similarly. E.g., People v. Averett, 381 Ill. App. 3d 1001, 1007 (2008); People v. Love, 377 Ill.
       App. 3d 306, 313 (2007).
¶ 49        Because both Blue (abuse of discretion) and Wheeler (de novo) are decisions from our
       supreme court, we must explain our decision to choose one over the other. It cannot be
       understated that, in the context of alleged impropriety in argument, the pedigree for an abuse
       of discretion standard spans more than a hundred years. E.g., People v. McCann, 247 Ill. 130,
       170-71 (1910); Bulliner v. People, 95 Ill. 394, 405-06 (1880). Of the many cases decided
       around the turn of the twentieth century, North Chicago Street Ry. Co. v. Cotton, 140 Ill. 486
       (1892), provides one of the most comprehensive accounts of the reasons courts apply the abuse
       of discretion standard in this context. We note that Cotton was a civil case but has since been
       incorporated by citation into many criminal decisions. E.g., People v. Smothers, 55 Ill. 2d 172,
       176 (1973).
¶ 50        The court in Cotton, adopting an abuse of discretion standard, focused on the presence of
       the trial judge during the entirety of the proceedings. 140 Ill. at 502. Because the trial judge is
       present for the entire trial, he or she has the benefit of “hearing the remarks of counsel on both
       sides” and is better situated to determine whether anything that happened or was said justifies

                                                    -8-
       the challenged remark. Id. “Every reasonable presumption must be indulged in that the trial
       judge has performed his [or her] duty, and has properly exercised the discretion vested in him
       [or her] ***.” Id. at 503. We add to Cotton’s observations that the trial judge is also in a
       superior position to observe the tone of the advocates, the apparent impression of the remarks
       on the jurors, and the rhetorical impact that a passing remark may or may not have had in the
       broader context of counsel’s entire argument. As judges of a reviewing court, the “dry” record
       provides us with none of these benefits.
¶ 51        A claim that a de novo standard of review applies does not enjoy similar historical support.
       In Wheeler, 226 Ill. 2d at 121, our supreme court pointed to People v. Graham, 206 Ill. 2d 465
       (2003), as authority for announcing a de novo standard of review. But, as precedents go,
       Graham is far from helpful. There, the defendant claimed both that he had been denied a fair
       trial because the State elicited testimony about his postarrest silence at trial and that the
       prosecutor erred in bringing that silence up during closing arguments. Id. at 474. The court
       then said, “We review this legal issue de novo,” making no differentiation between the distinct
       claims the defendant had raised. Id.
¶ 52        That would be confusing enough, but the court declined to conduct an analysis on the merits
       of either of those arguments. The defendant had forfeited both claims by failing to object to
       either the testimony or the State’s closing argument. Id. at 475. The court found that neither
       prong of plain error saved the defendant from forfeiture. Id. at 475-76. Ultimately, the question
       the court answered was whether the defendant’s forfeiture could be excused on the ground that
       counsel had performed ineffectively, and the court concluded that counsel had performed
       effectively. Id. at 476-77. Questions of ineffective assistance of counsel are reviewed de novo.
       People v. Demus, 2016 IL App (1st) 140420, ¶ 27. Reading Graham, therefore, provides no
       clarity as to whether it applied a de novo standard of review to the prosecutorial misconduct
       claims—claims it did not decide—or to the ultimate ineffective assistance claim that it did
       decide.
¶ 53        Assuming that Graham was applying a de novo standard of review to the prosecutorial
       misconduct claim, it would be the last link in a remarkably brief chain of precedent. The case
       on which Graham relied for its finding of a de novo standard of review had nothing to do with
       claims of prosecutorial misconduct. See People v. Carlson, 185 Ill. 2d 546, 551 (1999). Rather,
       that case raised the question of whether the trial court erred in denying a defendant’s motion
       to suppress evidence. Id. Again, like claims of ineffective assistance of counsel, the
       determination of whether suppression is warranted presents a question of law requiring de novo
       review. People v. Colyar, 2013 IL 111835, ¶ 24. The ultimate source of Wheeler’s conclusion
       about the standard of review involved a case examining a distinct substantive area of law.
¶ 54        We conclude that Blue, applying an abuse of discretion standard to claims of prosecutorial
       misconduct in closing argument, properly invoked over a century of Illinois Supreme Court
       precedent. Wheeler, applying a de novo standard of review, imported that standard with no
       explanation from cases that are either unclear or that analyze dissimilar claims. We follow Blue
       and review claims of prosecutorial misconduct in closing arguments under the abuse of
       discretion standard.

¶ 55                                     Misstatement of Evidence
¶ 56       Phagan first claims that the prosecutor misstated the evidence in closing argument by
       saying “[t]he defendant is literally caught at 3001 South King Drive in the stolen vehicle with

                                                   -9-
       the smoking gun.” While a prosecutor has wide latitude to make closing arguments, those
       arguments cannot be based on a misstatement of the evidence. People v. Jackson, 2012 IL App
       (1st) 102035, ¶ 18. A single misstatement does not necessarily deprive a defendant of a fair
       trial unless the remark “ ‘result[s] in substantial prejudice to the defendant and constitute[s] a
       material factor in his conviction.’ ” Id. (quoting People v. Brooks, 345 Ill. App. 3d 945, 951
       (2004)).
¶ 57        The parties’ dispute centers on competing readings of Jackson, and we find resolving their
       dispute resolves this issue. In Jackson, the defendant was convicted of aggravated unlawful
       use of a weapon, which required the police to prove that he knowingly possessed a firearm. Id.
       ¶¶ 1, 19. Officers pulled Jackson over for a traffic stop, and one of them saw a bag of cannabis
       in the center console. Id. ¶ 6. When they asked Jackson to step out of the car, Jackson “made
       an aggressive, quick motion,” started the car, and tried to put it in drive. Id. ¶ 9. The officers
       ordered him out of the car again, and after he and the passenger complied, they found a gun on
       the driver’s side of the car under the floor mat along with a larger bag of cannabis. Id. ¶¶ 7, 10.
       Jackson testified that he did not know about the gun in his car and had never seen it there. Id.
       ¶ 13. During rebuttal, the prosecutor argued that in “ ‘Defendant[’s] own words, he told the
       officers he found a gun in his car.’ ” Id. ¶ 18.
¶ 58        The court found the prosecutor’s argument to be an obvious misstatement of the evidence,
       seeing as the defendant had repeatedly denied knowing about the gun in his car. Id. ¶¶ 17, 20.
       The court went on to find prejudice because the question at the heart of Jackson’s case was not
       only whether a gun was in the car but whether Jackson knew about it. Id. ¶¶ 19-20. The only
       evidence of knowledge was circumstantial evidence based on the officer’s testimony that
       Jackson had turned his car back on and tried to put it in drive. Id. ¶ 19. That testimony was
       disputed too. Id. In short, no direct or physical evidence showed that Jackson knew the gun
       was in his car. Id. ¶¶ 17, 20.
¶ 59        Phagan and the State initially dispute whether the prosecutor actually misstated the
       evidence. Jackson guides us because there the prosecutor made a claim (the defendant
       confessed to knowing about the gun) that was directly contradictory to the defendant’s
       testimony and his entire theory of the case (he did not know about the gun). Id. ¶¶ 19-20. Here,
       the alleged inaccuracy is less clear. As the State points out, citing Merriam Webster’s online
       dictionary, the term “smoking gun” carries a widely known colloquial meaning. Indeed the
       only definitions of the phrase provided are “something that serves as conclusive evidence or
       proof (as of a crime or scientific theory)” or “a piece of evidence that clearly proves who did
       something or shows how something happened.” See Merriam-Webster’s Online Dictionary,
       https://www.merriam-webster.com/dictionary/smoking%20gun (last visited Apr. 18, 2019)
       [https://perma.cc/NLY9-J7WD].
¶ 60        We are not persuaded by Phagan’s argument that the prosecutor misstated the evidence
       because the gun was not currently hot or issuing smoke when the officers discovered it. The
       jurors heard the testimony about the points during the chase at which the driver fired the gun.
       They were well aware that the driver was not observed firing the gun immediately before the
       chase ended. The plain meaning of the prosecutor’s argument, under any reasonable
       interpretation, was figurative: the police officers found a gun at the feet of the driver’s seat in
       the van where, several moments before, the driver was seen firing a gun. Based on the evidence
       presented, the State was entitled to argue to the jury that the discovery of the gun was


                                                   - 10 -
       “conclusive evidence or proof” of the officers’ testimony that they had seen the driver of the
       van fire the gun.
¶ 61        Even if we were to find that the prosecutor misstated the evidence by using the phrase
       “smoking gun,” we would not find any prejudice like the court did in Jackson. Unlike the court
       in Jackson, we are not evaluating proof of a subjective mental state that can only be shown by
       circumstantial evidence. The prosecutor’s argument spoke to one question: Did Phagan fire the
       gun found in his car? Multiple witnesses testified that they saw the driver of the van shoot at
       them. Officer Pantano even testified that, at the time the driver shot at him and Officer Carroll,
       he could see the driver, whom he identified as Phagan. Additionally, even if the witnesses who
       saw the driver fire a gun could not see his face, it is undisputed that only Phagan occupied the
       van during the chase.
¶ 62        Additionally, unlike Jackson, we are not confronted with a complete lack of physical
       evidence surrounding the disputed remark. Illinois State Police analyst Ellen Chapman testified
       that she found gunshot residue from the driver area. She also found gunshot residue on
       Phagan’s white short-sleeved T-shirt. We acknowledge that Chapman testified that the
       presence of gunshot residue does not necessarily mean the person came in contact with it by
       firing a gun. But the gunshot residue testimony must be taken in conjunction with the facts that
       officers saw the driver firing the gun and it is undisputed that Phagan was the driver.
¶ 63        The gun was not literally smoking; it was “smoking gun” evidence, and we find no error.
       Regardless, any error that may exist would not have prejudiced Phagan.

¶ 64                                             Bolstering
¶ 65       Phagan next argues that the prosecutor committed misconduct by improperly bolstering the
       credibility of the State’s witnesses. During rebuttal the State argued, referring to the police
       officers: “They’re just doing their job. They’re out there serving and protecting. We ask them
       to do that. We need the police.” According to Phagan, the prosecutor’s argument “attempted
       to bolster the credibility of the State’s witnesses based solely on their status as officers,
       resulting in grave prejudice to Phagan, as the entire case hinged on the jury’s credibility
       determinations.”
¶ 66       The State counters that the prosecutor did not bolster its witnesses because the prosecutor
       did not inject personal beliefs and instead “made benign, accurate, common knowledge
       statements about the job of police officers.” As an alternative argument, the State says that the
       defense counsel’s argument “provoked or invited” the prosecutor’s rebuttal.
¶ 67       The hallmark of improper bolstering involves an expression of a prosecutor’s personal
       belief in the credibility of a witness. See People v. Rogers, 172 Ill. App. 3d 471, 476 (1988);
       People v. Townsend, 136 Ill. App. 3d 385, 394 (1985) (improper to “place[ ] the weight of the
       State’s Attorney’s office behind the credibility of the State’s witnesses”). Even where a
       prosecutor does not explicitly state his or her personal beliefs about witness credibility,
       “repeated references to [a witness’s] status as a police officer and a sworn deputy” nonetheless
       can amount to improper bolstering. See People v. Ford, 113 Ill. App. 3d 659, 662 (1983).
¶ 68       Phagan argues that the prosecutor’s comments during rebuttal were “very similar to those
       that were found to be reversible error in Ford and Rogers.” We disagree. In Ford the prosecutor
       compared one of the officers involved to the defendant, describing the officer as a person “ ‘of
       impecable [sic] credentials’ ” and the defendant as a person who “ ‘her own community didn’t


                                                   - 11 -
       trust.’ ” Id. at 661. The prosecutor went on to ask the jury, “ ‘Why would [the officer], a sworn
       Warren County Deputy, pull a charade like this and lie and perjure herself for a lousy 15 gram
       purchase of marijuana?’ ” Id. at 662. The court found these comments “exceeded the
       boundaries of proper argument.” Id. The prosecutor in Ford directly linked the witness’s status
       as an officer and her credibility.
¶ 69        The prosecutor went further in Rogers, arguing, “ ‘What can I say about [the officers],
       seasoned veterans on the police force. Credibility untouchable. Important testimony.’ ” 172 Ill.
       App. 3d at 476. Again, like in Ford, the prosecutor in Rogers directly linked the witnesses’
       status as officers with their credibility: “ ‘You take all the evidence in consideration and look
       at the testimony of the witnesses and believe me you look at [the officers] and they won’t get
       on the stand and lie and make up something.’ ” Id. at 477. “[T]aken in context,” according to
       the opinion, the State had improperly attempted to inject its personal views about the credibility
       of its officer witnesses. Id.
¶ 70        When we view the prosecutor’s statements in Phagan’s case, particularly when we view
       them in context, we do not find similar error. The entire paragraph of transcript containing the
       disputed statements reads:
                     “The pursuit is fluid. The officers see different things at different times. Everybody
                sees different things at different times. Wouldn’t it be suspect if it was all exactly the
                same, if everybody saw the same thing[?] They’re just doing their job. They’re out
                there serving and protecting. We ask them to do that. We need the police.”
       In context, the prosecutor appears to be attempting to explain the reason that officers would
       testify with slight variations even though they viewed the same event. We cannot say, in light
       of the guidance offered by Rogers and Ford, that the prosecutor’s comments amount to
       improper bolstering. We do not, however, share the State’s view that these comments embody
       entirely “benign, accurate, common knowledge statements about the job of police officers.” In
       particular, the addition of “[w]e ask them to do that” and “[w]e need the police” to the end of
       this portion of the argument carries the risk of implying to the jury that they should take the
       officers’ testimony more seriously because officers perform critical societal functions.
¶ 71        While we could say that the prosecutor’s comments verged on the improper when read on
       their own, we also agree with the State that defense counsel’s argument invited the remarks.
       See, e.g., People v. Vargas, 409 Ill. App. 3d 790, 797 (2011) (“prosecutor’s remarks on rebuttal
       will not be deemed improper where the record reveals they were the product of defense
       counsel’s provocation or invitation”). Defense counsel’s theme sought to demonstrate the
       officers only said that there were shots fired from the van to justify their own decisions to shoot
       their weapons. When referring to the shots fired by Officers Taylor and Akinbusuyi, counsel
       argued that “you got to say that you see something in order to justify these actions” and went
       on to argue, “[the officers] don’t see any muzzle flashes from the van. They don’t see any
       flashes of light. But they’re firing away because you got to justify your actions.” Immediately
       after that argument, this time referring to Officer New, counsel argued he heard shots fired and
       “when [he] saw the van, [he] fired off a shot. Got to justify [his] actions. Got to say something.”
       Counsel rounded out the argument: “Basically when they’re [sic] shots fired, and the officers
       get into position pretty much have a green light to fire shots and that’s what it comes down to.”
¶ 72        Phagan’s counsel’s entire characterization of the officers’ testimony sought to convey that
       the officers only testified as to what they saw and that they heard shots from the van to justify


                                                    - 12 -
       the shots they took; in other words, the officers lied to avoid getting in trouble for shooting at
       the van.
¶ 73       In light of defense counsel’s characterization of the officers’ testimony, we do not find
       statements like “[t]hey’re out there serving and protecting,” “[w]e ask them to do that,” and
       “[w]e need the police,” to establish improper bolstering. If anything, the State engaged in an
       attempt to rehabilitate the officers after defense counsel strongly implied that they lied to save
       themselves from some kind of liability. More importantly, we find that overruling Phagan’s
       objection to this line of argument was not an abuse of discretion.

¶ 74                                         Phagan’s Credibility
¶ 75       Phagan maintains that the prosecutor improperly “attack[ed]” Phagan’s credibility by
       arguing, “it’s ridiculous what [Phagan] told you. Don’t believe it for a second. He has so much
       to lose. That’s why he’s doing it.” In particular, Phagan claims that these remarks referenced
       his possible punishment, which a prosecutor cannot do. See People v. Cisewski, 118 Ill. 2d
       163, 177 (1987). The State initially responds that the claim has been forfeited, having not been
       specifically listed in the posttrial motion. The State goes on to argue that the claim fails on the
       merits because the prosecutor may permissibly comment on any witness’s credibility, even the
       defendant’s when the defendant chooses to testify. See People v. Kirchner, 194 Ill. 2d 502, 549
       (2000) (“State may challenge a defendant’s credibility and the credibility of his theory of
       defense in closing argument when there is evidence to support such a challenge”).
¶ 76       We agree with the State that Phagan forfeited this argument by failing to include it in his
       posttrial motion. To preserve an issue for review, a defendant must object to the alleged error
       when it occurs and raise the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186
       (1988). In terms of claims about prosecutorial misconduct in argument, a defendant must
       include each claimed error in the posttrial motion not just a general claim of misconduct. See
       Love, 377 Ill. App. 3d at 312-13 (distinguishing between alleged errors that were and were not
       included in defendant’s posttrial motion). Defense counsel certainly objected to the State’s
       comments about Phagan’s credibility during the rebuttal argument, but those comments are not
       claimed errors in the motion for a new trial. Strictly applying Enoch, Phagan’s claim has been
       forfeited.
¶ 77       We could excuse Phagan’s forfeiture and consider this claim on the merits (see People v.
       Perry, 2014 IL App (1st) 122584, ¶ 20 (forfeiture a limit on parties, not court)), but defense
       counsel on appeal does not use his reply brief to respond to the State’s forfeiture argument or
       contend that there are any grounds on which we could excuse his forfeiture. See People v.
       Ramsey, 239 Ill. 2d 342, 412 (2010) (proper to raise plain error for first time in reply brief). At
       a minimum, counsel has forfeited any response to the State’s forfeiture argument. See Ill. S.
       Ct. R. 341(h)(7) (eff. May 25, 2018). Because trial counsel’s failure to include this claim in
       Phagan’s posttrial motion results in forfeiture and because appellate counsel does not ask us to
       excuse that forfeiture, we decline to address this claim on the merits.
¶ 78       In sum, the trial court did not abuse its discretion when it overruled Phagan’s objections to
       the prosecutor’s arguments about “smoking gun” evidence and the officers’ motives for
       testifying. Phagan’s claim that the prosecutor improperly disparaged his testimony has been
       forfeited and counsel makes no argument that we can review that claim for plain error. Finding
       no error in the prosecutor’s argument, we affirm Phagan’s convictions.


                                                   - 13 -
¶ 79                                        Firearm Enhancement
¶ 80        Phagan goes on to mount several attacks on his sentence, first claiming that the 20-year
       firearm add-on imposed on his sentence for attempted murder of a peace officer does not apply
       to that offense. The statute defining attempt offenses in Illinois contains a separate provision
       outlining specific sentencing requirements for attempted first degree murder. As a baseline,
       the statute requires attempted first degree murder to be sentenced as a Class X offense, carrying
       a sentencing range of 6 to 30 years. 720 ILCS 5/8-4(c)(1) (West 2014); 730 ILCS 5/5-4.5-25(a)
       (West 2014).
¶ 81        If the victim is a peace officer, the statute extends the sentencing range to 20 to 80 years.
       720 ILCS 5/8-4(c)(1)(A); 9-1(b)(1) (West 2014). If the defendant personally discharges a
       firearm during the commission of the offense, the statute requires the imposition of an
       additional 20 years. Id. § 8-4(c)(1)(C).
¶ 82        Phagan argues that the 20-year enhancement for personally discharging a firearm does not
       apply to his conviction for attempted first degree murder of a peace officer because the plain
       language of the attempt statute only allows the court to impose one enhancement or the other,
       not both. Phagan relies on a decision of this court, People v. Douglas, 371 Ill. App. 3d 21, 26
       (2007), which held that once a court applies the status-based enhancement in subsection (A),
       it cannot apply any of the others. Phagan acknowledges that, since Douglas, two other panels
       of this court have rejected it and held that both the status-based and firearm-based
       enhancements can be applied to a single sentence. People v. Smith, 2012 IL App (1st) 102354,
       ¶¶ 107-16; People v. Tolentino, 409 Ill. App. 3d 598, 603-06 (2011). He asks us to depart from
       those decisions.
¶ 83        The State asks that we follow Smith and Tolentino and find that the plain language of the
       statute allows for imposing both the status-based and firearm-based enhancements to attempted
       first degree murder. According to the State, no language in the statute indicates that these
       enhancements are mutually exclusive, and applying both keeps with the General Assembly’s
       intent to punish offenses more harshly when the offender uses a gun.
¶ 84        Before the filing of the State’s brief and Phagan’s reply brief, another panel of this court
       weighed in. The court in People v. Jackson, 2018 IL App (1st) 150487, joined Smith and
       Tolentino to reject the reasoning in Douglas. We disagree with the conclusion in Jackson
       because we find its statutory analysis to be incomplete. We also disagree with the conclusions
       in Smith and Tolentino because both cases analyzed the statute as it existed before the General
       Assembly made a consequential amendment.
¶ 85        We agree with the court’s conclusion in Douglas, though for different reasons. We hold
       that the plain language of section 8-4(c)(1) of the attempt statute does not allow for imposing
       more than one of the exceptions in subsections (A) through (E). Therefore, we vacate the
       application of the 20-year firearm enhancement in subsection (C) to Phagan’s sentence for
       attempted first degree murder.
¶ 86        We begin our analysis with a significant point that the parties do not dispute: the statutory
       subsections are sentencing enhancements and do not lay out unique elements for separate
       offenses. We pause to explain our agreement with that proposition due to Douglas, on which
       Phagan relies, possibly suggesting that the enhancements are elements of unique offenses. In
       Douglas, the court discussed the legislative purpose behind the enhancements for attempted
       murder of a peace officer and described the General Assembly’s enactment as “creating a Class
       X offense carrying 20 to 80 years” and said that subsections (B), (C), and (D) are “each a

                                                   - 14 -
       different offense.” 371 Ill. App. 3d at 26. To the extent the court in Douglas meant to advance
       this interpretation, we conclude the decision is incorrect.
¶ 87       As a general rule, if a statute lays out the elements of a criminal offense and then separately
       provides sentencing classifications based on other factors, those additional factors do not create
       new offenses. People v. Owens, 2016 IL App (4th) 140090, ¶ 33 (citing People v. Van Schoyck,
       232 Ill. 2d 330, 337 (2009)). Instead, those additional factors serve only to enhance the ultimate
       punishment. Id. The attempt statute expressly sets out the elements of the offense under a
       heading bearing that specific language. See 720 ILCS 5/8-4(a) (West 2014) (“Elements of the
       offense.”). Then the separate factors are laid out in a subsection labeled “Sentence.” See id.
       § 8-4(c). The structure of the statute makes plain that we are dealing, not with separate
       offenses, but with additional factors that provide exceptions to the general Class X sentence
       imposed for attempted first degree murder.
¶ 88       We are mindful that, under Apprendi v. New Jersey, 530 U.S. 466, 495 (2000), labeling an
       additional factor an “enhancement” does not diminish the State’s burden to prove that factor
       beyond a reasonable doubt. But the General Assembly has accounted for this constitutional
       rule and has placed strict limits on the ability to charge and obtain a conviction based on
       nonelement sentencing enhancements. The Code of Criminal Procedure provides that, where
       the State alleges a nonelement fact that increases the range of penalties beyond the statutory
       maximum that could otherwise be imposed, the State must notify the defendant before trial,
       submit the enhancement to the fact finder, and prove it beyond a reasonable doubt. 725 ILCS
       5/111-3(c-5) (West 2014).
¶ 89       Here, the State both amended the indictment and submitted a written motion seeking the
       relevant enhancements. The jury instructions included the victims’ status as peace officers as
       propositions that the State had to prove, and the State submitted special jury questions
       regarding the proof of personal discharge of a firearm beyond a reasonable doubt. Thus, we
       are presented with nonelement sentencing enhancements that have been proven in a manner
       consistent with the constitutional rule of Apprendi. Cf. Jackson, 2018 IL App (1st) 150487,
       ¶¶ 55-59.
¶ 90       Turning to whether both enhancements can apply to attempted first degree murder, we are
       confronted with a question of statutory interpretation. Our objective in construing a statute is
       to give effect to the General Assembly’s intent, which we do by looking to the language in the
       statute and ascribing its plain and ordinary meaning. Id. ¶ 48. Unless the language of the statute
       is ambiguous, we do not resort to extrinsic aids of statutory construction. Id. (citing People v.
       Glisson, 202 Ill. 2d 499, 505 (2002)). We employ the de novo standard of review when
       construing a statute. Id. ¶ 47.
¶ 91       The sentencing provision of the attempt statute, section 8-4(c)(1), states:
                    “(c) Sentence.
                    A person convicted of attempt may be fined or imprisoned or both not to exceed
                the maximum provided for the offense attempted but, except for an attempt to commit
                the offense defined in Section 33A-2 of this Code:
                        (1) the sentence for attempt to commit first degree murder is the sentence for a
                    Class X felony, except that
                            (A) an attempt to commit first degree murder when at least one of the
                        aggravating factors specified in paragraphs (1), (2), and (12) of subsection (b)


                                                   - 15 -
                       of Section 9-1 is present is a Class X felony for which the sentence shall be a
                       term of imprisonment of not less than 20 years and not more than 80 years;
                           (B) an attempt to commit first degree murder while armed with a firearm is
                       a Class X felony for which 15 years shall be added to the term of imprisonment
                       imposed by the court;
                           (C) an attempt to commit first degree murder during which the person
                       personally discharged a firearm is a Class X felony for which 20 years shall be
                       added to the term of imprisonment imposed by the court;
                           (D) an attempt to commit first degree murder during which the person
                       personally discharged a firearm that proximately caused great bodily harm,
                       permanent disability, permanent disfigurement, or death to another person is a
                       Class X felony for which 25 years or up to a term of natural life shall be added
                       to the term of imprisonment imposed by the court; and
                           (E) if the defendant proves by a preponderance of the evidence at sentencing
                       that, at the time of the attempted murder, he or she was acting under a sudden
                       and intense passion resulting from serious provocation by the individual whom
                       the defendant endeavored to kill, or another, and, had the individual the
                       defendant endeavored to kill died, the defendant would have negligently or
                       accidentally caused that death, then the sentence for the attempted murder is the
                       sentence for a Class 1 felony[.]” 720 ILCS 5/8-4(c)(1)(A)-(E) (West 2014).
¶ 92       As we have alluded to, the bulk of the relevant cases provide little help because they were
       not confronted with the applicable text. The statute’s 2010 amendments changed the period at
       the end of subsection (D) into a semicolon and added everything from “and” to the end of
       subsection (E). Pub. Act 96-710 (eff. Jan. 1, 2010) (amending 720 ILCS 5/8-4). Douglas,
       decided in 2007, interpreted the version of the statute in effect in 2000. 371 Ill. App. 3d at 26.
       Smith and Tolentino, decided in 2012 and 2011 respectively, also interpreted versions of the
       statute in effect before the amendment. See Smith, 2012 IL App (1st) 102354, ¶ 107 (citing
       720 ILCS 5/8-4(c) (West 2004)); Tolentino, 409 Ill. App. 3d at 604 (citing 720 ILCS 5/8-4(c)
       (West 2006)). Only one case, which neither party cites but was addressed during oral argument,
       interprets the postamendment version—Jackson, 2018 IL App (1st) 150487, ¶ 49 (citing 720
       ILCS 5/8-4(c) (West 2010)). We will, accordingly, begin our analysis with Jackson although,
       as we will explain, that analysis only gets us so far.
¶ 93       Jackson points to section 8-4(c) as stating a general rule: attempted first degree murder is
       a Class X offense carrying a sentencing range of 6 to 30 years in prison. Id. ¶ 50. The statute
       then goes on to list exceptions, beginning with subsection (A), which allows for an enhanced
       sentencing range of 20 to 80 years when the victim is, among others, a peace officer. Id.
       Jackson’s analysis focuses on what comes next: a semicolon. Because a series of subsections
       punctuated by semicolons follow subsection (A), ordinary principles of grammar would
       suggest that these are “related but separate concept[s].” Id. ¶ 51. Ordinarily this means we
       would read subsections (A) through (E) disjunctively, that is, only one could apply at a time.
       Id.
¶ 94       Jackson went on to find that the “and” transition from subsection (D) to subsection (E)
       disrupted the usual inference that we would derive from a semicolon. Id. The court reasoned
       that, by inserting “and” at the end of a list punctuated by semicolons, the General Assembly
       expressed an intent that the subsections apply conjunctively, meaning that more than one can

                                                   - 16 -
       apply to a given defendant at a given time. Id. The court in Jackson found this to be a natural
       reading because subsections (B) through (D) add a term of years onto the new sentencing range
       required when subsection (A) applies. Id. ¶ 52.
¶ 95       Absent from the analysis in Jackson (and from the parties’ briefs before us) is a discussion
       of the effect of the addition of subsection (E) on the analysis. Certainly, we must interpret
       statutes to give every section its intended effect. People v. Stoecker, 2014 IL 115756, ¶ 25
       (“every clause of a statute must be given a reasonable meaning, if possible, and should not be
       rendered meaningless or superfluous”). Additionally, we interpret statutes as a whole, rejecting
       an interpretation that exalts one provision of a statutory scheme over another. People v. Miles,
       2017 IL App (1st) 132719, ¶ 25 (“When interpreting a statute, we do not read a portion of it in
       isolation; instead, we read it in its entirety, keeping in mind the subject it addresses and the
       drafters’ apparent objective in enacting it.”). When we adhere to these principles and take
       account of subsection (E), reading these provisions conjunctively, as the court did in Jackson,
       brings about an unworkable result.
¶ 96       Subsection (E) borrows language that is “substantially similar to the statutory language for
       one of the grounds for second degree murder.” People v. Lauderdale, 2012 IL App (1st)
       100939, ¶ 23 (citing 720 ILCS 5/9-2(a)(1) (West 2010)). Because the court in Lauderdale
       found that the defendant had failed to prove the existence of facts justifying mitigation under
       subsection (E), the court expressly declined to decide whether the 25-year firearm
       enhancement in subsection (D) could be applied if the mitigating circumstances in subsection
       (E) also were found. Id. ¶ 35.
¶ 97       We are aware that our supreme court has said, “under the Illinois attempt statute, no crime
       of attempted second degree murder exists.” People v. Lopez, 166 Ill. 2d 441, 451 (1995). As
       we have said, subsections (A) through (E) do not create new offenses; they provide exceptions
       to the default Class X sentencing range for attempted first degree murder. That said, we
       examine the differences between first and second degree murder to further our understanding
       of the relationship between subsections (A) through (E) in the attempt statute.
¶ 98       Under our law, while it is listed in its own statute, Illinois has no separate offense of second
       degree murder. See People v. Jeffries, 164 Ill. 2d 104, 122 (1995) (second degree murder is
       not lesser-included offense of first degree murder but, rather, a lesser-mitigated offense of first
       degree murder). In other words, finding a defendant guilty of second degree murder means he
       or she must have committed acts that establish every element of first degree murder. Lopez,
       166 Ill. 2d at 447. Then, once the State has proven the elements of first degree murder, the
       defendant has the opportunity to prove one of two mitigating circumstances by a
       preponderance of the evidence. Id.; see also 720 ILCS 5/9-2(a)(1)-(2) (West 2014). By its plain
       terms, the statute codifying second degree murder only allows a defendant to present mitigating
       circumstances if he or she allegedly committed nonaggravated first degree murder. See 720
       ILCS 5/9-2(a) (West 2014) (citing id. § 9-1(a)(1)-(2)). Hence, there cannot be, for instance,
       second degree murder of a peace officer.
¶ 99       With these base principles in mind, we turn to the sentencing exceptions in section 8-
       4(c)(1)(A) through (E). To receive the enhancement for attempted murder of a peace officer,
       the defendant must attempt an act that, if he or she had succeeded, would be first degree murder
       of a peace officer. See id. §§ 8-4(c)(1)(A); 9-1(b)(1). To receive the mitigation of a Class 1
       sentence based on serious provocation, the defendant must have attempted an act that, if he or
       she had succeeded, would have been second degree murder (first degree plus a mitigating

                                                    - 17 -
        circumstance). See id. § 8-4(c)(1)(E). These two exceptions to the base Class X sentencing
        range for attempted first degree murder cannot exist together because, if the defendant
        attempted the aggravated form of first degree murder, the defendant cannot also have attempted
        first degree murder plus a mitigating circumstance. We know this because, as we have
        explained, the mitigating circumstances that allow for a second degree murder conviction do
        not apply to the aggravated versions of first degree murder.
¶ 100        Jackson relied on the word “and” to support its conjunctive interpretation of the subsections
        without taking account of what came after the “and.” One simply cannot read subsection (A)
        and subsection (E) conjunctively. Applying the conjunctive reading proposed in Jackson to the
        remainder of the subsections would require us to acquiesce in an impossible reading of the
        statutory scheme as a whole, an absurd result we are obligated to avoid. See In re Andrew B.,
        237 Ill. 2d 340, 348 (2010) (we presume legislature did not intend absurd results).
¶ 101        Accounting for subsection (E), as we must, leads to absurd results. But reading the statute
        conjunctively leads to another absurdity that existed even before the amendment of the attempt
        statute. Phagan points out that reading the subsections conjunctively would allow the trial court
        to impose the 15-year, 20-year, and 25-year enhancements in subsections (B), (C), and (D)
        respectively, on top of each other as long as the State proved the factual predicate for the most
        serious of the three. In Jackson, the court dismissed this concern as “unfounded” because of
        the rule that the court is to interpret statutes so as to prohibit multiple enhancements absent
        clear legislative intent to the contrary. 2018 IL App (1st) 150487, ¶ 53. We cannot reconcile
        this assurance with Jackson’s finding of a clear legislative intent to read the statute
        conjunctively. It cannot both be true that the legislature wanted the subsections to apply
        conjunctively, which would require the imposition of every subsection that applied, but at the
        same time did not intend multiple enhancements.
¶ 102        The State’s attempt to save this reading of the statute fares no better. In contrast to Jackson,
        at oral argument the State embraced the multiple-enhancement interpretation and assured us
        that trial courts simply are not sentencing defendants under every enhancement that applies.
        We have similarly been unable to find any case in which a court has applied more than one of
        the enhancements in subsections (B) through (D). But the State’s assurance that trial courts are
        not applying these enhancements on top of one another raises another interpretive problem: the
        enhancements under subsections (B) through (D) are mandatory. Each subsection states that
        the term of years “shall be added” if the trial court finds the requisite facts. If subsections (B)
        through (D) are to be read conjunctively and the imposition of each subsection to be mandatory,
        then trial courts (or at least the trial court in this case) are acting contrary to the mandates of
        the statute.
¶ 103        We have explained the problems a conjunctive interpretation of the statute poses. It is
        impossible to read subsection (A) and subsection (E) conjunctively because the attempt offense
        described in each subsection cannot both have been committed by the same person at the same
        time. We cannot read subsections (B) through (D) conjunctively because doing so appears to
        sanction an unintended multiple enhancement. Both problems are at once solved by a
        disjunctive reading of subsections (A) through (E).
¶ 104        Further support comes from the statutory amendment. Douglas was the only opinion
        interpreting the former version of section 8-4(c). When we interpret amended statutes, we
        presume that the General Assembly knows of appellate and supreme court decisions
        interpreting those statutes at the time of the amendment. People v. Gliniewicz, 2018 IL App

                                                     - 18 -
        (2d) 170490, ¶ 38. If the legislature leaves the statute unchanged in spite of our decision, we
        presume that the legislators acquiesced in our interpretation. See Bruso v. Alexian Brothers
        Hospital, 178 Ill. 2d 445, 458-59 (1997). Other provisions of the Criminal Code of 2012
        demonstrate the General Assembly’s ability to make the compound application of status- and
        firearm-based enhancements unmistakable. For example, the aggravated assault offense
        delineates separate offenses based on the location of the offense (720 ILCS 5/12-2(a) (West
        2014)), based on victim status (id. § 12-2(b)(1)-(10)), and based on the use of a firearm (id.
        § 12-2(c)(1)-(9)). The sentencing provision then sets out separate classes of offense for each
        enumerated subsection. Id. § 12-2(d). That provision further provides additional enhancements
        for certain status-based offenses when a Category I, II, or III weapon is used. Id. The General
        Assembly, through this statutory scheme, makes plain that the status and weapon aggravating
        factors are distinct, going on to include separate subsections where it obviously intends
        enhancements to be based on the use of a weapon and victim status combined.
¶ 105        Another example, slightly more analogous, involves the statute criminalizing predatory
        criminal sexual assault of a child. See id. § 11-1.40. There, the legislature set out specific
        elements that create the offense. Id. § 11-1.40(a)(1)-(2). The first element depends purely on
        the child’s age. Id. § 11-1.40(a). The second element is based on the age of the child and then
        nests within it certain additional factors, including the presence or discharge of a firearm. Id.
        § 11-1.40(a)(2)(A)-(B). Then, in the sentencing section, the statute delineates distinct
        sentencing ranges and enhancements for each subsection.
¶ 106        These statutory provisions provide evidence that the General Assembly has the ability to
        impose status-plus-firearm enhancements when it intends to do so. We cannot read that intent
        here, however, particularly when we must presume the legislature was aware of Douglas when
        it amended the attempt statute. The General Assembly could have easily expressed its intent to
        interpret the statute in the way the State would like by nesting subsections (B) through (D)
        under subsection (A), but it chose not to. If this is the reading the legislature intended, the
        General Assembly should amend the statute to make that clear.
¶ 107        We find that the attempted first degree murder statute found in section 8-4(c)(1)(A)-(E), as
        it is currently written, does not allow for the imposition of the 20- to 80-year extended
        sentencing range combined with the 20-year firearm enhancement. See id. § 8-4(c)(1)(A)-(E).

¶ 108                                            Remedy
¶ 109        Phagan argues that we should “either vacate the 20-year sentencing enhancements or
        remand this cause for resentencing.” The State takes no position on remedy, simply asking us
        to affirm. While Phagan does not cite any authority or offer any explanation as to why we
        would vacate the firearm enhancement as opposed to the peace officer enhancement, we agree
        that vacating the 20-year firearm enhancement is the proper course.
¶ 110        We have found no authority directly on point in the context of sentencing enhancements,
        but the law is well settled in the analogous context of one-act, one-crime violations. Our
        supreme court has “always held” that, when the entry of two convictions violates the one-act,
        one-crime rule, the less serious offense must be vacated. People v. Lee, 213 Ill. 2d 218, 226-
        27 (2004). We are permitted to make that determination for ourselves, without remand to the
        trial court, when we are able to determine the more serious offense. People v. Grant, 2017 IL
        App (1st) 142956, ¶ 33. In the one-act, one-crime context, we determine the more serious
        offense by looking at the possible punishments—the greater the penalty, the more serious the

                                                   - 19 -
        offense. People v. Artis, 232 Ill. 2d 156, 170 (2009). If the punishments are identical, we can
        also look to the mental state required—the more culpable the mental state, the more serious
        the offense. Id. at 170-71.
¶ 111        These principles are easily applicable to Phagan’s case, even though we are dealing with
        sentencing enhancements, not separate offenses. The peace officer sentencing enhancement
        increases the sentencing range from 6-30 years to 20-80 years. 720 ILCS 5/8-4(c)(1)(A), 9-
        1(b)(1) (West 2014). The firearm enhancement, applied separately as we now hold it must be,
        increases the sentencing range from 6-30 years to 26-50 years. See id. § 8-4(c)(1)(C) (adding
        20 years to base Class X range). The peace officer sentencing enhancement increases the
        possible penalty far beyond the firearm sentencing enhancement and appears to be the
        enhancement the General Assembly viewed as the more serious.
¶ 112        We go on to analyze the mens rea for each enhancement, however, because of the
        substantial overlap between the two sentencing ranges. The firearm sentencing enhancement,
        by its plain text, imposes no additional mental state requirement beyond the base attempted
        murder offense. It is enough that the defendant committed attempted murder while discharging
        a firearm. The peace officer enhancement, on its own terms, also does not add a mental state
        requirement. But the peace officer enhancement does directly cross-reference to the underlying
        offense. See id. § 8-4(c)(1)(A) (citing id. § 9-1(b)(1)). The underlying offense requires the
        defendant to have knowledge that the victim was a peace officer. Id. § 9-1(b)(1). So we know
        that a defendant who attempts to murder a peace officer must know that he is attempting to
        murder a peace officer. We conclude that the peace officer enhancement requires a more
        culpable mens rea than the firearm enhancement.
¶ 113        Because the firearm enhancement is the less serious enhancement, based both on the
        possible penalties associated with it and the lesser mental state required, we vacate the trial
        court’s imposition of the 20-year firearm enhancement.

¶ 114                               Discretionary Consecutive Sentences
¶ 115       Phagan argues that the trial court erred by ordering his sentence for attempted murder to
        run consecutively to his other concurrent sentences. He argues that the independently lengthy
        prison terms are sufficient to protect the public because, despite his criminal background, this
        case did not result in any injuries or damage. The State responds that the trial court properly
        found that Phagan’s conviction for a 2008 case was “eerily similar” to this one and that Phagan
        put numerous lives at risk by his conduct, making a consecutive sentence necessary to protect
        the public. We agree with the State and find, given the extreme danger caused by Phagan’s
        conduct and his apparent penchant to be involved in this kind of behavior, the trial court did
        not abuse its discretion by imposing consecutive sentences.
¶ 116       The Unified Code of Corrections allows for the imposition of discretionary consecutive
        sentences where, “having regard to the nature and circumstances of the offense and the history
        and character of the defendant,” the court believes that consecutive sentences “protect the
        public from further criminal conduct by the defendant.” 730 ILCS 5/5-8-4(c)(1) (West 2014).
        Consecutive sentences should be imposed in exceptional cases, and the record must show that
        the trial court has adequately balanced mitigating factors and rehabilitative potential against
        the need to protect the public. People v. O’Neal, 125 Ill. 2d 291, 298-301 (1988); see also
        People v. Buckner, 2013 IL App (2d) 130083, ¶ 36. Given the fact-intensive balancing required
        from the trial court, we follow an abuse of discretion standard. O’Neal, 125 Ill. 2d at 297-98.

                                                   - 20 -
¶ 117       The trial court relied heavily on the danger to the public and the police caused by Phagan’s
        behavior. The record supports this conclusion. Ample testimony attests to Phagan repeatedly
        driving over the speed limit, ignoring traffic control devices, and driving off-road. In pursuit,
        the officers also had to drive at high speeds and sometimes in the wrong lane of traffic. While
        it was early morning, and the videos of the chase show little traffic, the trial court correctly
        found that the chase posed a significant risk of danger to anyone in the vicinity, including
        Phagan and the pursuing officers. That would be danger enough, but Phagan compounded that
        danger by firing at the officers. In response, several officers fired at least 17 shots.
¶ 118       Even more significantly, the trial court found Phagan’s actions to be both deliberate and
        likely to be repeated. The trial judge, when considering mitigation, rejected the idea that
        Phagan’s conduct “did not contemplate” the possibility of serious physical harm to another.
        The court noted that at every turn Phagan could have made a choice to reduce the possibility
        of injury by complying with the police when they attempted to pull him over. Instead, he led a
        “high speed chase with basically shootouts at three different points.” Phagan undoubtedly
        understood that he “could cause or threaten serious physical harm certainly to civilians that
        were around, as well as responding officers.”
¶ 119       As we laid out in the facts, Phagan committed this offense while on mandatory supervised
        release (parole) for a 2008 offense that bears striking similarities. A Sauk Village police officer
        found Phagan and a codefendant in a car that had been stolen four days before. After
        unsuccessful efforts to arrest them, Phagan sped off, at times “[i]n excess of 110 miles an
        hour,” driving erratically. The codefendant, the passenger, leaned out and fired at the pursuing
        officers causing one squad car to crash and another to abandon the pursuit. The trial court
        described this offense as “eerily similar” to this one, and we agree. Phagan has shown, twice
        now, complete disregard for the safety of the citizens of Chicago, the police, and himself. We
        find the trial court’s judgment, that this aggravation is “incredibly, incredibly significant,” to
        not be an abuse of discretion.
¶ 120       Phagan fails to identify any record facts that the trial court should have considered in
        mitigation and did not. Instead, he recites a series of Illinois cases reversing the imposition of
        consecutive sentences for “far more serious crimes” than his, including O’Neal, People v.
        Rucker, 260 Ill. App. 3d 659 (1994), and People v. Brown, 258 Ill. App. 3d 544 (1994). We
        find these cases distinguishable, each for slightly different reasons.
¶ 121       In O’Neal, the trial court ordered the murder sentence to run consecutively to the
        concurrent sentences for rape and aggravated kidnapping. 125 Ill. 2d at 293-94. The defendant
        and another offender had forced their way into victim’s car. Id. at 294-95. They drove to an
        alley where they put the victim’s boyfriend in the trunk and the defendant raped the victim. Id.
        at 295. After the defendant was done, the other offender got on top of the victim; the defendant
        then shot the other offender and fled. Id. The defendant was 19, the youngest of six children to
        a mother on public aid. Id. at 300. The defendant had left home while he was still in grammar
        school, and his only conviction had been a robbery for which he had received probation. Id.
        The defendant also testified that he was afraid of the other offender, who had previously forced
        him to participate in other crimes and to perform sexual acts at gunpoint. Id. at 296.
¶ 122       The Illinois Supreme Court affirmed the judgment of the appellate court reversing the
        imposition of consecutive sentences. Id. at 301. Central to its analysis was the determination
        that the trial court had considered the evidence in aggravation, but there was “no indication
        that the trial court gave serious consideration to [the] defendant’s youth and other evidence in

                                                    - 21 -
        mitigation, namely, his desire to free himself from [the other offender’s] oppressive deviate
        sexual practices.” Id. at 300. Phagan’s sentencing hearing does not present us with the same
        deficiencies. The trial court went through the statutory mitigating factors and explained why
        each one did not apply. Of particular relevance, contrary to the court’s reasoning in O’Neal,
        the trial court found that Phagan’s conduct was not the result of provocation, inducement, or
        some other excuse. O’Neal presented an uncommon set of facts and a trial court unwilling to
        consider them; that is not Phagan’s situation.
¶ 123        In Rucker, the trial court imposed consecutive sentences for two separate counts of armed
        robbery despite the presence of a deluge of mitigating evidence. There, the 17-year-old
        defendant and two of his friends placed orders for pizza. Rucker, 260 Ill. App. 3d at 660. Both
        times the same delivery person arrived. Id. The first time the boys brandished a metal pipe and
        took the pizza without paying; the second time, the boys hit the delivery person with baseball
        bats, causing a skull fracture and shattered elbow, and took money from him. Id. at 660-61. At
        sentencing the State argued the severity of the offense in aggravation. Id. In contrast, the
        mitigation evidence showed that the defendant had been a well-performing student until his
        grandmother died and his girlfriend broke up with him, at which point he was hospitalized for
        severe depression and never successfully treated. Id. at 661. The defendant, though he
        explained the offense as another boy’s idea, expressed remorse and a willingness to pay
        restitution to the victim. Id. at 661-62.
¶ 124        The appellate court reversed the consecutive sentences, finding that, while a lengthy
        sentence was appropriate, consecutive sentences of 6 and 14 years was an abuse of discretion
        in light of the facts. Id. at 663. None of the mitigation present in Rucker exists here. Phagan
        was not a young boy, cajoled into crime by peer pressure. There is no evidence of trauma that
        would have caused a behavioral spiral. Similarly, because Phagan did not speak in allocution,
        there is no affirmative evidence that he expressed any remorse. Indeed, most of his trial
        testimony was nothing but an elaborate exercise in blame-shifting, and a futile one at that—
        the jury did not accept any of his excuses. We cannot say that Rucker supports reversal.
¶ 125        The court in Brown confronted a confluence of reasons to justify a reversal of consecutive
        sentences. The defendant had been convicted of aggravated criminal sexual assault, aggravated
        criminal sexual abuse, and armed robbery. Brown, 258 Ill. App. 3d at 545. As in O’Neal, the
        appellate court described the trial court’s consecutive sentences decision as “boilerplate.” Id.
        at 554. As in Rucker, significant mitigating evidence was presented, including that the
        defendant was 19, had no criminal history, had been employed, and lived with his family. Id.
        In addition, the defendant in Brown faced a different application of the consecutive sentencing
        statute. By the statute’s text, his sentences for aggravated criminal sexual assault and armed
        robbery were required to run consecutively, and the defendant did not challenge that aspect of
        his sentence. Id. at 553. Those sentences alone amounted to 20 years. Id. at 554. The appellate
        court found it unnecessary to add an additional discretionary consecutive sentence of five
        years. Id. As before, we are not presented with significant mitigation or with a “boilerplate”
        ruling from the trial court or with sentences already running consecutively by operation of law.
¶ 126       The trial court’s decision did not amount to an abuse of discretion. Phagan does not claim
        that the trial court failed to consider mitigating evidence. The trial court carefully considered
        the potential for harm caused by Phagan’s conduct and, given Phagan’s criminal history, the
        substantial likelihood that he might do something like this again. We agree that the record


                                                   - 22 -
        supports the trial court’s conclusion. We affirm the imposition of consecutive sentences.

¶ 127                                     Excessiveness of Sentence
¶ 128       Phagan also challenges his sentence as excessive. We address this issue without remanding
        because, as we read Phagan’s brief, we understand his challenge to be only to the concurrent
        30-year sentences for attempted murder of a peace officer irrespective of his challenges to the
        20-year firearm enhancement or the consecutive sentence in his other case. While Phagan’s
        brief does complain about his “71-year aggregate sentence,” the remedy he seeks is exclusively
        related to his 30-year attempted murder sentence. Specifically, he asks only that we “reduce
        [his] sentences for attempt[ed] first degree murder to the minimum of 20 years” or remand for
        resentencing. This task is the same regardless of our conclusions as to the other aspects of his
        sentence, so we undertake it now.
¶ 129       Phagan makes three basic arguments as to the excessiveness of his 30-year attempted
        murder sentences: (i) his sentence had no deterrence value because, as the trial court
        acknowledged, the case had not received “substantial visibility”; (ii) the sentence serves no
        rehabilitative purpose because Phagan had rehabilitative potential but received a de facto life
        sentence; and (iii) the trial court’s sentence was disproportionate to the nature of the offense.
        The State responds to each claim, but the theme of the State’s argument is that on balance the
        seriousness of Phagan’s offense significantly outweighs any possible mitigation and justifies
        his sentence, which was within the applicable sentencing range. We ultimately agree with the
        State.
¶ 130       Phagan briefly reiterates the trial court’s point that his sentence would not serve the interest
        in general deterrence because the case was not widely publicized. We note some courts have
        expressed doubt that publicity is a necessary component of general deterrence. See United
        States v. Robinson, 778 F.3d 515, 521 (6th Cir. 2015) (“A court should not require evidence of
        likely publicity before taking into account the Congressional sentencing goal of deterrence
        ***.”). Indeed, general deterrence concerns maintaining the faith that our judicial system
        adequately punishes wrongdoing as much as it does about preventing others from committing
        the precise crime of which a defendant is convicted. Cf. United States v. Martin, 455 F.3d
        1227, 1240 (11th Cir. 2006). It would be impossible to advance this goal if we consistently
        sanctioned relatively lenient punishment for serious offenses just because those cases did not
        achieve public infamy. We find that, even if Phagan’s offense had not been widely known, his
        sentence demonstrates the trial court’s commitment to punishing defendants sufficiently for
        bad acts and fosters a culture of deterrence that our system values.
¶ 131       Phagan further argues that he is “not beyond rehabilitation” because he was only 23 years
        old at the time of the offense, had a supportive family, had purportedly left the gang with which
        he had been involved, and had struggled with poverty and his mother’s substance abuse.
        Defense counsel made these same arguments to the trial court. We presume that the trial court
        considered this evidence unless affirmative proof shows the contrary. People v. Brewer, 2013
        IL App (1st) 072821, ¶ 55. The trial court expressly considered the statutory mitigating factor
        related to Phagan’s attitude and likelihood to commit another crime as well as potential
        hardship to his family members caused by a long sentence. The existence of mitigating factors
        does not require the trial court to sentence close to the minimum. People v. Flores, 404 Ill.
        App. 3d 155, 158 (2010).


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¶ 132       Despite the trial court’s authority to substantially depart from the minimum—even with
        the existence of mitigating factors—the court did not do so for the base sentence for attempted
        murder. As a result, we cannot say that his sentence is “disproportionate to the nature of the
        offense,” as Phagan argues. The permissible range for Phagan’s sentence is 20 to 80 years. 720
        ILCS 5/8-4(c)(1)(A) (West 2014). Phagan’s base sentence is 10 years beyond the minimum
        and 50 years shy of the maximum. We have already set out, in great detail, the danger caused
        by Phagan’s offense and his having committed similar offenses. Given the deference we owe
        to sentences within the statutory range (see People v. Vega, 2018 IL App (1st) 160619, ¶ 64),
        coupled with the trial court’s careful consideration of the factors in aggravation and mitigation,
        we do not see a justification to disturb the trial court’s sentencing judgment.

¶ 133      Affirmed in part and vacated in part.

¶ 134              SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

¶ 135       Mr. Phagan has filed a pro se petition for rehearing. His arguments focus on our rejection
        of two of his claims of prosecutorial misconduct. He claims that we improperly characterized
        the State’s argument about the “smoking gun” as a well-known figure of speech where earlier
        in the sentence counsel for the State used the word “literally.” (Internal quotation marks
        omitted.) Supra ¶¶ 55-63. In other words, he asks us to read “literally” literally. He also claims
        that we improperly honored his forfeiture of his argument about the State’s characterization of
        his credibility. Supra ¶¶ 74-78. As part of that argument, he suggests that his appellate counsel
        was ineffective for failing to address the State’s forfeiture argument in the reply brief.
¶ 136       As to Phagan’s first argument, he cites the dictionary definition of “literally” and urges us
        to find that any plain reading of the State’s argument about the smoking gun could not be
        figurative. Again, the whole phrase the State said was, “[t]he defendant is literally caught at
        3001 South King Drive in the stolen vehicle with the smoking gun.” There is a grammatical
        ambiguity in this sentence. “Literally” could modify “caught at 3001 South King drive,” but
        not the following prepositional phrases. Or “literally” could modify “caught at 3001 South
        King Drive in the stolen vehicle,” but not “with the smoking gun.” Both of these interpretations
        would be literally true in light of the trial evidence. Or as Phagan argues, “literally” could
        modify everything that follows it.
¶ 137       Our original opinion set out at some length that we review claims of prosecutorial
        misconduct for an abuse of discretion. Part of that review involves deference to the trial court’s
        assessment of counsel’s tone. Here, the emphasis the State placed on different words in the
        sentence could have provided some clue as to the contextual meaning of “literally.” The trial
        court is also in the best position to gauge the impact of a particular argument in the context of
        the whole argument. Our discussion of the multiple permissible interpretations of the
        prosecutor’s argument, when read on paper, is precisely why we vest the trial court with
        discretion to determine the propriety of counsel’s arguments. In light of the standard of review
        and the inherent ambiguity in the State’s one-sentence argument, we decline to modify our
        original holding.
¶ 138       We similarly reject Phagan’s request to excuse his forfeiture of his claim about the
        prosecutor’s comments on his credibility during closing argument for the reasons we have
        already stated. Supra ¶ 77. We will, however, briefly address his argument about ineffective

                                                    - 24 -
        assistance of his appellate counsel for failing to argue plain error in reply. We typically do not
        allow litigants to raise new arguments in petitions for rehearing (Ill. S. Ct. R. 341(h)(7) (eff.
        May 25, 2018)), but we have softened the requirement of compliance with this rule in
        appropriate circumstances. People v. Patterson, 2016 IL App (1st) 101573-B, ¶¶ 23, 27
        (addressing two new arguments from State’s petition for rehearing where they spoke to the
        court’s jurisdiction and a conflict in precedent, respectively).
¶ 139        We could invoke Rule 341 and suggest to Phagan that he raise his claim of ineffective
        assistance of appellate counsel in a postconviction petition. See People v. Veach, 2017 IL
        120649, ¶ 31 (collecting cases). In Veach, however, the Illinois Supreme Court instructed us
        that ineffectiveness claims are better suited to collateral proceedings only when “the record is
        incomplete or inadequate for resolving the claim.” Id. ¶ 46. We can resolve Phagan’s
        ineffective assistance of counsel claim easily on the record before us, and so judicial economy
        would be poorly served by sending him to postconviction proceedings to do so instead.
¶ 140        Ineffective assistance of appellate counsel claims are governed by the familiar standard in
        Strickland v. Washington, 466 U.S. 668 (1984), and require a defendant to show both that his
        counsel’s performance was deficient and that the deficiency prejudiced the defendant. People
        v. Golden, 229 Ill. 2d 277, 283 (2008). In this context, “[u]nless the underlying issue has merit,
        a defendant cannot be considered to have suffered prejudice from appellate counsel’s failure
        to brief the issue.” People v. Makiel, 358 Ill. App. 3d 102, 113 (2005). We have already said
        that the underlying issue about the State’s comments on Phagan’s credibility were forfeited
        (supra ¶ 76), and so the alleged error must have amounted to plain error in order for us to find
        appellate counsel’s failure to raise it prejudicial.
¶ 141        A defendant can show plain error in two ways. Under “first-prong” plain error, “a
        reviewing court must decide whether the defendant has shown that the error was so closely
        balanced the error alone severely threatened to tip the scales of justice.” People v. Sebby, 2017
        IL 119445, ¶ 51. Under this prong, a defendant must show that the error is prejudicial by
        demonstrating that the evidence is closely balanced. Id. Under “second-prong” plain error, we
        must also decide “whether the defendant has shown that the error was so serious it affected the
        fairness of the trial and challenged the integrity of the judicial process,” but if the defendant
        makes that showing we presume prejudice regardless of the closeness of the evidence. Id. ¶ 50.
¶ 142        Under either prong of plain error we typically ask first whether there was clear or obvious
        error at all. Id. ¶ 49. But here, even assuming (without deciding) the prosecutor’s argument
        was improper, neither prong of plain error would save Phagan from his forfeiture. As to the
        first prong, the evidence here was not closely balanced. Unlike Sebby, which turned on the
        resolution of a contest of credibility (id. ¶ 63), the State’s case was corroborated by physical
        evidence. Supra ¶¶ 25-27. The court in Sebby cited its previous decision in People v. Naylor,
        229 Ill. 2d 584 (2006), with approval where the court emphasized that first-prong plain error
        covers cases with “ ‘opposing versions of events’ ” but where there is “ ‘no extrinsic evidence
        *** to corroborate or contradict either version.’ ” Sebby, 2017 IL 119445, ¶ 63 (quoting
        Naylor, 229 Ill. 2d at 607). Here we have extrinsic evidence corroborating a host of State
        witnesses. The evidence was not closely balanced, and the prosecutor’s error, assuming there
        was one, was not first-prong plain error.
¶ 143        Phagan has not explained how the prosecutor’s passing comment about credibility amounts
        to second-prong plain error, and our review of the record does not reveal a trial that was unfair.
        We highlight that the State’s attempt to downplay Phagan’s credibility was not necessarily a

                                                    - 25 -
        successful one. The jury found Phagan not guilty of several counts related to the chase overall
        and, more relevant to Phagan’s testimony, not guilty of one of the counts related to the taking
        of Anthony Wilson’s car. Whatever effect the prosecutor’s argument had on the jury, it does
        not appear to have affected its ability to carefully and fairly weigh the evidence and decide on
        Phagan’s guilt or lack thereof. Importantly, Phagan offers no concrete argument to the
        contrary.
¶ 144       We find that, even if it was error for the prosecutor to comment on Phagan’s credibility, it
        was not plain error. Because it was not plain error, counsel’s failure to argue that it was in the
        reply brief did not prejudice Phagan. We reject his argument of ineffective assistance of
        appellate counsel. We deny Phagan’s petition for rehearing and, with the additions mentioned
        here, adhere to our original opinion.




                                                    - 26 -
