                                  No. 2--06--0140    Filed: 1-14-09
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 04--CF--3278
                                       )
JOHNATHAN J. ROMERO,                   ) Honorable
                                       ) Richard W. Vidal,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

                                Modified on Denial of Rehearing

       PRESIDING JUSTICE ZENOFF delivered the opinion of the court:

       Defendant, Johnathan Romero, appeals his conviction of first degree murder (720 ILCS 5/9--

1(a)(2) (West 2004)) and his subsequent sentence of 50 years' imprisonment in connection with an

incident in which he fatally stabbed another young man, Eric Flynn, at a bonfire party. On appeal,

defendant argues that (1) the evidence that defendant acted under an unreasonable belief in the

necessity of deadly force in self-defense warrants our reducing his conviction to second degree

murder; (2) his conviction should be reversed and the cause remanded for retrial due to the

prosecutor's allegedly improper statements during closing rebuttal argument; (3) his sentence was

excessive; and (4) the judgment must be corrected to reflect the three years of mandatory supervised

release (MSR) statutorily authorized instead of the four years actually imposed. The State concedes

the latter point. For the reasons that follow, we affirm as modified.
No. 2--06--0140


       Defendant's trial took place between November 18 and November 29, 2005. The State's first

witness, Flynn's mother, testified that Flynn came home from work on October 2, 2004, shortly after

9 p.m. but left home again at approximately 10:30 or 10:45 p.m. When he left he was wearing blue

jeans and a gray sweatshirt.

       John Peppers testified next for the State. He testified that October 2 was the night of Auburn

High School's homecoming dance and that his younger brother Jeff was planning a bonfire party for

that night. Shortly after 10 p.m., after the party had started and after John, who was 21 years old at

the time, purchased some alcohol, he picked Flynn up and drove him to the party. When they arrived

at John's house, they discovered that John's parents were breaking up the party. The group decided

to join another bonfire party at the home of Eric Ellis.

       Though there were no streetlights in the area and the pathway leading up to the bonfire area

was dark, the bonfire clearing was "pretty bright," and, "as soon as you got into the clearing, *** you

could definitely see." John recognized most of the people at the Ellis party as either friends or

"friend[s] of friend[s]" whom he had met that night, but he did not know defendant and did not see

him at the party. Even though the majority of the partygoers were high school students, most of them

were drinking. John stayed at the bonfire for approximately one hour before leaving to meet another

friend and also to purchase more alcohol for the party. Flynn remained at the party during John's

absence. When John eventually returned to the party, the atmosphere was "panicked," and "[t]here

were a lot of cars kinda speeding away." John was informed by the partygoers that Flynn had been

stabbed.

       Chris Peppers, John's younger brother, testified that he arrived at the Ellis party at

approximately 11 p.m. on October 2, after his parents had broken up his party, which had included



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his friend Mitch Heaslip and some of Heaslip's friends from Wisconsin. Chris drank five beers over

the course of the night, but, though there were "a lot of people" using marijuana at the Ellis party,

Chris testified that he did not take any drugs that night. Chris saw his brother John leave after

approximately one-half hour in order to purchase more beer, and, after two more of his friends left

the party 15 minutes later, Chris wandered away from the bonfire and toward the road. There, he

saw an acquaintance named Christina and a person he recognized named Adan arrive with a small

group of one girl and three boys whom Chris did not recognize. Chris followed the group back to

the bonfire, but he was suspicious of the unknown boys because they were not interacting with the

other partygoers but were instead standing to the side of the party.

       A short time later, Chris again walked away from the bonfire and toward the road. While he

was away, he "started hearing a bunch of noise, yelling and screaming." He ran back to the bonfire

and saw what "looked like fifteen people *** just in a big brawl." Chris could not identify any

specific people in the brawl, but he noted that the group of unknown boys was no longer standing

where he had last seen them. On cross-examination, Chris recalled that, during the fight, he saw

Ryan Hatfield standing on a spool, with a six-foot-long metal pole in his hand.

       Chris joined a group of people sitting behind some nearby cars and observed the fight from

a safe distance. At some point, the group of unknown boys came rushing toward Chris, "screaming

and yelling, saying 'We gotta get out of here.' " Chris ran and jumped into a nearby ditch, and from

there he saw two cars leave. According to Chris, his brother John arrived at the party within a

minute thereafter.

       Peter Miller testified next for the State. On October 2, 2004, he and several friends had

traveled from Wisconsin to visit Mitch Heaslip, who took them first to the Peppers party and, after



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that party was broken up, to the Ellis party. At some point during the Ellis party, a group of people

with whom Miller was not familiar arrived; the group did not mingle with the other partygoers.

Miller "decide[d] to socialize with them," and thus approached them. Then, "this black dude asked

[Miller] what [his] colors were *** or asked [him] what [his] problem was." When Miller attempted

to respond with a joke, it did not appear that the stranger "took it as a joke," and "a confrontation

happened." One of the boys in the group of strangers "flicked" Miller's hat off into the fire, and

Miller shoved him. Miller exchanged cross words with the group as his friends from Wisconsin and

some people from Rockford rushed in to break up the fight. Miller and the group reconciled, but,

a short time later, he saw a "verbal" argument break out between "the guy in the hoodie and that

group." Some people were pulling back the "guy in the hoodie," who Miller later learned was Eric

Flynn, when the group "kinda bull rushed him." (When asked what it meant when someone "gets

bull rushed," Miller answered, "Self-defense, running back, trying to protect himself, he's in the

defensive.") A large fight, involving what Miller estimated on cross-examination as "fifteen, twenty

people," broke out. The next time Miller saw Eric Flynn was "[w]hen he *** pulled his hand off of

his shirt and said *** 'help' or something" before falling to the ground, bleeding. Miller "could hear

him breathing hard and *** could see blood squirting out."

       Eric Stone, another partygoer from Wisconsin, was the next witness for the State. He

testified that, after Miller's confrontation with the group that was not interacting with the other

partygoers, he saw Flynn "standing there" when a "chair [was] thrown right by him and a Mexican

started rushing after him, and he was kinda running backwards and stuff." Stone later testified that

two people approached Flynn--one wearing an orange shirt and one wearing a gray shirt. Stone

testified that the confrontation was "about fifteen, twenty feet away," and that he could "pretty much



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see" or could see "pretty clearly." When Flynn was being rushed, he was "rushing backwards," and

Stone's imitation of his hand movements was described as follows: "his palms are up at sort of

shoulder height with the palms facing out." During redirect examination, Stone indicated that Flynn

swung at the two adversaries with the palms of his hands up and his elbows in front of his face. It

appeared as if one of Flynn's assailants, who was wearing a gray shirt and gray pants, was punching

him in an "awkward," "downward sideways motion" while Flynn "struck out with his fists, probably

to block them, trying to get them off of him." Stone was distracted by noises behind him, and, when

he turned back around, he saw Flynn, who was on the ground, get up, "take[] like four or five steps

*** and fall[] on his face." On cross-examination, Stone agreed that he was intoxicated at the time

of the altercations. He also agreed on cross-examination that he never saw a knife.

       Brian Coy, another Wisconsin partygoer, testified that he saw the confrontation between

Miller and the group of strangers during the Ellis party and that he "kind of stepped forward, [to]

make sure nothing was going to happen." When he turned around, he saw "someone stand on [a

nearby wooden spool] with a gray sweatshirt on saying everyone needs to respect everybody." Then,

"[s]omeone pushed the spool over and he fell down," and three people began "kicking him, beating

him up" while he was on the ground. Though he testified that he was not intoxicated at the time of

the incident, Coy stated that he could not "really see" who was involved in the altercations that

followed, because it was dark and the three people had their backs turned to him. When next he saw

the person in the gray sweatshirt (which he also described as a hooded sweatshirt) approximately 10

minutes later, the person "stumbled over by [him] and fell over by [his] feet."

       John Gillitzer, yet another partygoer from Wisconsin, testified that he met Flynn, who was

wearing a gray hooded sweatshirt, that night at the Ellis party. After Miller's confrontation with the



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group of strangers, Gillitzer saw someone yelling at the group, " 'Don't disrespect me, we're here to

have fun.' " Gillitzer testified that he then saw two of the strangers push someone off the wooden

spool, but he could not tell who was pushed off the spool. On cross-examination, Gillitzer stated

that Flynn was not the person who was pushed off the spool but was the person who told others not

to disrespect him. Gillitzer did not see Flynn during the altercations that followed, and, the next time

Gillitzer saw Flynn, he saw a Hispanic male wearing an orange shirt "hit him in the face and then

that same guy came back and hit him in the chest." Gillitzer looked away, and Flynn came up to him

"gasping for air."

        One of Flynn's friends, Ryan Hatfield, testified that Flynn was wearing a dark gray hooded

sweatshirt at the Ellis party on October 2, 2004. Hatfield recalled that, during the Ellis party, a group

of strangers arrived with a person he knew named Adan, and the group did not interact with the

remaining partygoers. At some point during the party, Hatfield saw Flynn arguing with the group,

and Hatfield tried to remove Flynn from the argument. Hatfield recalled that, "as [they] were

walking [away from the confrontation,] the group of people came after [him] and [Flynn]." Hatfield

was punched in the nose during the encounter. Hatfield recalled that, "[a]fter everybody scattered

away from that [,] [Hatfield] walked back over by the fire and Adan grabbed [Hatfield] and threw

[him] into the trees and had [him] around by [his] neck, and then one of [Adan's] buddies came and

grabbed [Adan] off [Hatfield] and said *** ['] we got to go[.']" Hatfield recalled under cross-

examination that he grabbed a nearby metal pole after Adan had been pulled off of him. Also on

cross-examination, Hatfield estimated that his encounter with Adan likely lasted less than one

minute. Once Adan and Hatfield were separated, the strangers left, and Hatfield saw Flynn being

lifted onto a truck to be taken to the hospital. Hatfield stated that he had stood atop a wooden spool



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at one point during the party and that he did not see anyone else on the wooden spool during the

party.

         After the testimony of the police officer who collected physical evidence related to the case,

the State called Daniel Romero, defendant's brother, to testify. He recalled that he and defendant,

along with two girls and four other boys, went to a bonfire party on the night of October 2, 2004.

Daniel wore gray pants and a gray T-shirt to the party. Daniel testified that someone wearing a

strange hat approached his group to ask for drugs, and an argument between Adan and the person

ensued. According to Daniel's testimony, a fight between defendant and another boy broke out at

that point, but Daniel did not see any of that fight because his attention was directed toward Adan.

Under further questioning, Daniel agreed that he had told police that the other boy had gotten in

defendant's face, that Daniel had tried to keep the two apart using his arms, and that defendant took

out a knife for protection, but Daniel asserted that he was "just agreeing" to those statements because

they were what the police were telling him. When asked if he told police that defendant cut him

while he was trying to keep the two people apart, Daniel answered that "[t]hat's what the police said."

However, upon being shown pictures of him and of his clothing from that night, Daniel agreed that

he had an injury on his arm and that his clothes had blood on them. Daniel testified later that he did

not know how he got the injury to his arm. Later under direct examination, Daniel agreed when

asked if he was "the only person that stepped between [defendant] and the [Flynn]." Daniel also

agreed that, while he was standing between defendant and Flynn, Flynn did not have anything in his

hands and did not hit defendant. Daniel recalled seeing blood on defendant's butterfly knife once

they had returned to their car to leave the party. On cross-examination, Daniel stated that during the

car ride home defendant said that he stabbed the other person "because they were jumping him."



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        Detective Vincent Lindberg, who questioned Daniel on the day after the incident, testified

next for the State. He testified that Daniel at first said that he had been asleep by 8 p.m. the previous

night, but, when Lindberg confronted Daniel by indicating that he knew about Daniel's whereabouts

the previous night, Daniel told Lindberg that Flynn had gotten "in his brother's face," that he tried

to separate the two, that defendant pulled out a butterfly knife and stabbed Flynn, and that defendant

cut him as he was trying to separate Flynn and defendant. Lindberg took two written statements

from Daniel. Both statements were consistent with Lindberg's testimony regarding Daniel's

responses during questioning, but, in the second statement, Daniel added that, though none of the

other partygoers appeared to have any weapons, defendant may have wielded his knife because he

anticipated that two other people would join Flynn in fighting him. Lindberg testified that, though

he and not Daniel handwrote the first statement and typed the second, Daniel confirmed the accuracy

of the statements.

        After testimony from a police officer who went with a prosecutor to speak with Daniel, an

officer who collected a DNA swab from Daniel, and the court reporter who transcribed Daniel's

grand jury testimony, the State called Officer Frank Ingardona of the Rockford police department

to testify. Ingardona testified regarding his extensive training in martial arts, and he stated that he

was familiar with butterfly knives. Ingardona said that one would not be able to open a butterfly

knife safely with one hand without practice and that it took him "quite awhile" to learn how to do

so himself.

        After the testimony of a crime scene technician, the State elicited testimony from three

forensics specialists and entered a stipulation regarding the testimony of another. One of the

specialists, a pathologist, testified that Flynn suffered up to five stab wounds (one of Flynn's wounds



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might have been made during medical treatment), including a through-and-through knife wound that

produced two cuts on Flynn's left arm, a fatal knife wound that pierced "all the way through the left

ventrical [sic] and *** through the posterior portion of the heart," and a potentially fatal knife wound

to the lung. The pathologist stated that the heart wound was inflicted by "a deliberate force," akin

to the force required to stab a knife through a roast. The pathologist also testified that Flynn died

with a blood alcohol level of 0.081. After the pathologist's testimony, the State rested its case.

        Defendant's first witness, David Cruz, testified that, on October 2, 2004, he and a group of

six other boys, including defendant and defendant's brother, and some girls went together to a bonfire

party. Cruz stated that nobody in the group was wearing an orange shirt and that defendant was

wearing blue jeans and a blue plaid shirt. When they arrived at the party, Flynn walked up to the

group and, in a tone that struck Cruz as "upset," asked them who they were. Once the girls

introduced their group, "everything was fine." The girls from the group mingled, but the boys in the

group stayed to themselves until someone approached the group to ask for drugs and one of the

group members "smacked" the hat off his head. After that, Cruz saw fights break out, but he did not

see Flynn during the fighting.

        Danielle Zobal, one of the girls who traveled to the party with defendant, testified that she

was talking to someone when she looked over and saw someone retrieving his hat from the bonfire

after it had been knocked off his head. Zobal recalled that "everything was fine for a couple

minutes" afterwards. She walked with Cruz away from the crowd, and, when they returned,

"everybody was arguing, and then after that everybody just started fighting." She did not see

defendant or Flynn fighting, but she did see Flynn lying on the ground with a stab wound shortly

thereafter. As she and her group drove away from the party, Zobal saw that "all of them" had



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"bruises an [sic] scrapes" and the corduroy sweatshirt defendant was wearing was torn. She also

recalled seeing scratches on defendant's hands.

       After the testimony of a private investigator for the defense who had difficulty obtaining an

interview with a prosecution witness, Travis Triplett testified for the defense. Triplett was another

member of the group that accompanied defendant to the Ellis party. Fifteen minutes after the group

arrived at the party, one of the partygoers approached Triplett to try to acquire drugs, and "somebody

proceeded to knock his hat off his head and throw it into the bonfire." Just when tempers cooled,

Triplett saw Flynn standing atop a wooden spool, yelling that the group needed to watch what they

were doing and not disrespect him or the party. According to Triplett, Flynn told the group, " [']you

don't know what we can do to you, we're going to basically fuck you up.['] " One of Flynn's friends

grabbed him to remove him in order to ease tensions, but Triplett heard Flynn say, " [']You heard

what I said, get out or you're going to get your ass whooped.['] " Then, Triplett recalled, "the guys

that were in our group go running towards all the guys in their group." Triplett tried to break up the

ensuing fights and leave with his group. As he was leaving, he saw Flynn fall to the ground. Triplett

stayed to help Flynn while the rest of his group left.

       Defendant next testified on his own behalf. He testified that, on October 2, his brother

Daniel and a friend picked him up at his house. Defendant was wearing blue jeans and a flannel

plaid shirt; he did not recall anyone from their group wearing anything orange. When he entered the

car, he had in his pocket a butterfly knife, which Daniel had bought him, that he had been "playing

around with" and "[o]pening" and "flipping" earlier in the day. They went to Adan Ibarra's house,

where they met Adan, David Cruz, and three girls, including Danielle Zobal. They left for the

bonfire party and picked up Travis Triplett on the way. When they arrived at the party, a "[c]ouple



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guys came up and told [them] to come on in the party [sic] after they were talking to some of the

girls." Defendant and his group had been at the party for approximately 20 or 25 minutes when

someone walked up to the group to ask for drugs and a member of the group knocked off that

person's hat. Defendant recalled that Adan then began yelling at the person who asked for drugs,

because Adan believed him to be a "snitch," "[a]nd then Adan started getting into it with [Flynn]."

As Adan and Flynn argued, Daniel joined a group of people trying to separate the two, and defendant

tried to "grab [Daniel] to get away." Defendant continued: "They started walking away, and

everybody somehow moved toward the other side of the bonfire and another fight started going on."

According to defendant, the next thing he remembered was "looking over and [his] brother was

getting jumped by two guys." Defendant "went over, pushed [those] guys off of [his] brother."

Defendant stated that Flynn was one of Daniel's two adversaries. After defendant pushed Flynn off

of Daniel, Flynn started "coming after [defendant]" and "raised his fist." Defendant "pulled out the

knife and then [Flynn] struck [defendant]" "in the face area." Defendant stated that he pulled out the

knife because two people were coming at him and he "thought [he] was going to get hurt."

Defendant "tr[ied] to get away from him" by "sticking him with the knife" "[t]wo or three" times.

Though defendant believed that stabbing Flynn would cause him harm, defendant was not trying to

kill Flynn. When defendant stabbed Flynn, the altercation stopped, and defendant and his group left

to return to Adan's house. Defendant threw the knife into a river and returned home later that night.

       Police arrived at defendant's house the next morning and took him to the police department

for questioning. At trial, defendant admitted that he initially lied to police about whether he stabbed

Flynn, even after police confronted him with Daniel's statement that defendant had stabbed Flynn,




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but defendant eventually told police that he had stabbed Flynn and gave them a statement to that

effect.

          On cross-examination, defendant agreed that he had played with the butterfly knife a number

of times before that night, that he did not cut himself at all when he was playing with the weapon,

that he had no problem flipping it open, and that he could bounce it off of his hand "pretty easily."

He also agreed that his mother had implored him and his brother not to carry knives with them, but

defendant asserted that the advice was directed more toward his brother, who "always collected

knives." Defendant further agreed that, when he saw Flynn raise his hand or fist, he did not see

anything in Flynn's hand, but defendant said that he did not know if Flynn had anything in his hand,

because it was dark. Defendant agreed that there was no apparent injury to his face as a result of

Flynn's punching him. Defendant acknowledged that, in his written statement to police, he indicated

that one of the two people who attacked him "took off" when he drew his knife. Defendant testified

that he thought the second person took off, because he did not know where the person was

afterwards, but defendant asserted that he "didn't know for sure if [the person] kept on coming at

[him]."

          The defense rested after defendant's testimony, and, after the testimony of three rebuttal

witnesses regarding statements made to the police (including testimony that defendant did not

mention in interviews just after the incident that he had acted in self-defense or that he had been

struck before stabbing Flynn), both sides presented closing arguments. The jury found defendant

guilty of first degree murder, and the trial court subsequently sentenced him to 50 years'

imprisonment and a 4-year term of MSR. Defendant timely appeals.




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       Defendant's first argument is that his conviction must be reduced to a conviction of second

degree murder because the evidence showed that he acted with an unreasonable belief that there were

circumstances present to justify his use of deadly force against Flynn. Pursuant to section 9--2 of

the Criminal Code of 1961 (Code):

               "(a) A person commits the offense of second degree murder when he commits the

       offense of first degree murder *** and either of the following mitigating factors are present:

                       ***

                       (2) At the time of the killing he believes the circumstances to be such that, if

               they existed, would justify or exonerate the killing [as self-defense], but his belief is

               unreasonable.

               ***

               (c) When a defendant is on trial for first degree murder and evidence of either of the

       mitigating factors *** has been presented, the burden of proof is on the defendant to prove

       either mitigating factor by a preponderance of the evidence ***. However, the burden of

       proof remains on the State to prove beyond a reasonable doubt each of the elements of first

       degree murder and, when appropriately raised, the absence of circumstances at the time of

       the killing that would justify or exonerate the killing under the principles stated in Article 7

       of this Code. In a jury trial for first degree murder in which evidence of either of the

       mitigating factors *** has been presented and the defendant has requested that the jury be

       given the option of finding the defendant guilty of second degree murder, the jury must be

       instructed that it may not consider whether the defendant has met his burden of proof with

       regard to second degree murder until and unless it has first determined that the State has



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        proven beyond a reasonable doubt each of the elements of first degree murder." 720 ILCS

        5/9--2 (West 2004).

        The parties disagree as to the standard of appellate review applicable to defendant's claim that

the trier of fact erred in finding him guilty of first degree murder rather than second degree murder.

Defendant argues that, while we normally review the sufficiency of the evidence to support a

criminal conviction by determining whether any rational trier of fact could have found the elements

of the crime proven beyond a reasonable doubt, we should employ the manifest-weight-of-the-

evidence standard to review the jury's finding that defendant's guilt should not be mitigated to

second, rather than first, degree murder. The State initially disputed defendant's position and insisted

that "a defendant's conviction for first-degree murder should not be modified to second-degree

murder unless a rational trier of fact, after viewing the evidence in the light most favorable to the

prosecution, could not have found the elements of first-degree murder and could not have found,

beyond a reasonable doubt, that defendant did not act in self defense. People v. Lee, 213 Ill. 2d 218,

224 [(2004)]." However, at oral argument, the State conceded that defendant is correct on this point.

We disagree.

        For its original position, the State relied on Lee, a case in which the supreme court articulated

the standard of review for a jury's determination that the defendant did not act in self-defense under

section 7--1 of the Code. See Lee, 213 Ill. 2d at 225, citing 720 ILCS 5/7--1 (West 1998). Here,

however, the question is not whether defendant acted in self-defense so as to justify his actions. The

question is whether he possessed an unreasonable belief that self-defense was justified, so as to

mitigate his guilt but not "justify or exonerate the killing." The difference in this context is that lack

of self-defense, when self-defense is raised, is an element of first or second degree murder. See 720



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ILCS 5/7--14 (West 2004) ("A defense of justifiable use of force *** is an affirmative defense"); 720

ILCS 5/3--2(b) (West 2004) (where affirmative defense is raised, "the State must sustain the burden

of proving the defendant guilty beyond a reasonable doubt as to [the affirmative defense] together

with all the other elements of the offense"). By contrast, the presence of a mitigating factor is not

an element of second degree murder--it mitigates culpability on the already established elements of

first degree murder. Or, as stated in People v. Jerome, 206 Ill. App. 3d 428, 436 (1990):

               "When a defendant is charged with first-degree murder, the State is required to prove

       death, causation and intent ***. [Citation.] The defendant then has the opportunity to prove

       provocation or unreasonable belief in justification to reduce the offense to second-degree

       murder. [Citation.] The existence of provocation or an unreasonable belief in justification,

       however, will not diminish or negate any of the proved elements of first-degree murder. The

       mitigating factor is a separate issue the existence of which the State is willing to recognize

       as a circumstance affecting the degree of culpability or the severity of punishment."

       While due process requires that the State bear the burden of proving beyond a reasonable

doubt all of the elements of a crime in order to obtain a conviction (In re Winship, 397 U.S. 358,

364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970)), due process does not require that the State

disprove mitigating factors beyond a reasonable doubt where their absence is not an element of the

crime. Patterson v. New York, 432 U.S. 207, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977).1 Nor does


       1
      Due process also does not require that the State disprove
affirmative defenses beyond a reasonable doubt where their
absence is not an element of the crime. Patterson, 432 U.S. at
211, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327. However, Illinois
law provides that, where a defendant raises an affirmative
defense other than insanity, the State must disprove it beyond a
reasonable doubt just as it must prove the elements of the crime
beyond a reasonable doubt. 720 ILCS 5/3--2(b) (West 2004).

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Illinois law. Once the State has met its burden to prove the elements of first degree murder, the

burden shifts to the defendant wishing to mitigate the offense to second degree murder to prove the

existence of one of the statutory mitigating factors by a preponderance of the evidence. Lopez, 166

Ill. 2d at 447; see 720 ILCS 5/9--2(c) (West 2004).

       Our research has uncovered published Illinois decisions that support the notion that the State

bears the burden to disprove any mitigating circumstances beyond a reasonable doubt in order to

obtain a conviction of first, rather than second, degree murder. See People v. Thompson, 354 Ill.

App. 3d 579, 586 (2004) ("Once the defendant carries his burden of proving any of the factors in

mitigation, the burden shifts back to the State to prove the absence of the implicated mitigating

factors beyond a reasonable doubt"); People v. Izquierdo-Flores, 332 Ill. App. 3d 632, 638 (2002)

("If the defendant meets [the burden to prove the presence of a mitigating factor by a preponderance

of the evidence], then the State must disprove beyond a reasonable doubt any mitigating factor that

the defendant has raised"); People v. Golden, 244 Ill. App. 3d 908, 919 (1993) (if the defendant

presents mitigating evidence, "the State must disprove those factors beyond a reasonable doubt");

People v. Buckner, 203 Ill. App. 3d 525, 534 (1990) (if the trier of fact finds that the defendant has

established a mitigating factor by a preponderance of the evidence, "the State must disprove such

factor(s) by proof beyond a reasonable doubt"). These cases misstate the law. Illinois's statutory

scheme nowhere provides that the State must disprove a mitigating factor beyond a reasonable doubt

after a defendant has established a mitigating factor by a preponderance of the evidence. Section 9--

2(c) provides that the State must disprove "the absence of circumstances at the time of the killing

that would justify or exonerate the killing under the principles stated in Article 7 of this Code" (720

ILCS 5/9--2(c) (West 2004)), but it does not say the same for circumstances that would mitigate an



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offense from first degree murder to second degree murder. Instead, section 9--2(c) provides that "the

burden of proof is on the defendant to prove either mitigating factor by a preponderance of the

evidence before the defendant can be found guilty of second degree murder." 720 ILCS 5/9--2(c)

(West 2004). In fact, section 9--2(c) has withstood numerous constitutional challenges raised

precisely because it shifts the burden to the defendant to prove the existence of a mitigating factor

instead of requiring the State to disprove it beyond a reasonable doubt. See People v. Jeffries, 164

Ill. 2d 104, 114-19 (1995); People v. Hooker, 249 Ill. App. 3d 394, 406 (1993) (collecting cases);

People v. Guidry, 220 Ill. App. 3d 406, 412 (1991) (collecting cases); People v. Cook, 217 Ill. App.

3d 299, 301-05 (1991); People v. Brown, 218 Ill. App. 3d 890, 895-97 (1991); Buckner, 203 Ill. App.

3d at 529-34.2

       Further, the approach specified in Izquierdo-Flores and Buckner, which both state that the

State must disprove mitigating circumstances beyond a reasonable doubt after the defendant

establishes them by a preponderance of the evidence, does not reflect current practice. In a jury trial,

the way to determine if mitigating factors had been proven by a preponderance of the evidence would

be to submit the question to the jury. Thus, under Izquierdo-Flores and Buckner, all second degree

murder trials would be bifurcated so that the jury would return a verdict of guilty (with mitigating

circumstances proven by a preponderance of the evidence), and then proofs would be reopened for




       2
      We note that the decision in Buckner is particularly odd,
because it rejects the defendant's argument that section 9--2
"improperly shifted the burden of proof to him" (Buckner, 203
Ill. App. 3d at 529) yet still misstates the law by saying,
without supporting authority, that, if the trier of fact finds
mitigating factors to have been established by a preponderance of
the evidence, "the State must disprove such factor(s) by proof
beyond a reasonable doubt" (Buckner, 203 Ill. App. 3d at 534).

                                                 -17-
No. 2--06--0140


the State to make its case to disprove the mitigating factors beyond a reasonable doubt. Again, this

is not the law.

        In an appeal challenging a factual determination that no mitigating factor was present, the

question presented is not whether a reasonable fact finder could have found that the State disproved

the mitigating factor beyond a reasonable doubt but, rather, whether the fact finder correctly

concluded that the defendant did not prove the existence of a mitigating factor by a preponderance

of the evidence. The question of whether a defendant's actions were committed under mitigating

circumstances--here, the question of whether defendant unreasonably believed that circumstances

justifying the use of lethal force were present--presents a question of fact. Cf. People v. Urdiales,

225 Ill. 2d 354, 428 (2007) ("As is the case when a defendant raises a defense of insanity, for which

a defendant also bears the burden of proof, the existence of 'mental illness' *** is a question of fact").

Normally, we would not overturn the decision of the trier of fact on such a factual issue unless the

finding is against the manifest weight of the evidence. See Urdiales, 225 Ill. 2d at 428 (invoking

manifest weight review where defendant challenged a finding that he did not prove his mental illness

by a preponderance of the evidence); People v. Johnson, 146 Ill. 2d 109, 128-29 (1991) (same for

insanity). However, in two more recent cases, our supreme court has applied the standard that,

where a defendant argues that he presented sufficient evidence to prove a mitigating factor in a first

or second degree murder case, the reviewing court must consider "whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

that the mitigating factors were not present." People v. Blackwell, 171 Ill. 2d 338, 358 (1996); see

also People v. Reid, 179 Ill. 2d 297, 308 (1997) (citing Blackwell for the same proposition). We




                                                  -18-
No. 2--06--0140


must follow our supreme court's most recent pronouncements on the issue, and we therefore apply

the standard articulated in Blackwell and continued in Reid.

        In pressing his argument that the evidence established that he acted with an unreasonable

belief that circumstances existed to justify his use of force, defendant emphasizes evidence that there

was brawling at the party and that Flynn had threatened defendant's group. He also points to

testimony that two boys, including Flynn, attacked his brother and later attacked him, and he notes

that the testimony that it was dark outside at the time of the incident lends credence to his claim that

he could not see if Flynn was brandishing a weapon. Finally, defendant relies on his relative youth

and the rapid nature of the encounter as factors that limited his ability to fully and rationally consider

the situation before reacting. We agree with defendant that all of the above evidence could be

interpreted to support his claim of unreasonable self-defense. However, contrary to defendant's

argument, there was also evidence to negate his claim of unreasonable self-defense. Miller testified

that defendant's group "bull rushed" Flynn while Flynn was being pulled back and was "in the

defensive." Stone testified that two people from defendant's group "rush[ed] after" Flynn while

Flynn was "running backwards" and in a defensive position. Though he did not witness the stabbing,

Hatfield testified that defendant's group was the aggressor in the confrontation with Flynn. Triplett

testified that people from defendant's group went "running towards" other partygoers.

        Defendant disputes this evidence by emphasizing that no witness directly stated that he was

among the group who rushed toward Flynn. However, even without testimony directly identifying

defendant as being among the initial aggressors, the evidence nevertheless presented the strong

implication that defendant was among the group. Defendant also observes that Stone described the

clothing of the people he saw rush Flynn and that neither of his descriptions matched other witnesses'



                                                  -19-
No. 2--06--0140


descriptions of defendant's clothing that night. (Stone recalled that the two partygoers who

approached Flynn were wearing an orange shirt and a gray shirt; other testimony indicated that

defendant was wearing a blue shirt.) However, much of the testimony describing the events

surrounding the stabbing was either hazy or irreconcilable with other witnesses' accounts. In

attempting to sort the testimony, the jury could reasonably have discarded Stone's recollection of the

details of the combatants' attire. In sum, while defendant presented some testimony to support his

assertion that he acted in unreasonable self-defense (and while he highlights some evidence that

could be seen to undercut the State's position), there was also testimony to support the State's

position that he did not act in unreasonable self-defense.

       It is the responsibility of the trier of fact to determine the credibility of witnesses, the weight

to be given to their testimony, and the reasonable inferences to be drawn from the evidence. People

v. Brisbon, 106 Ill. 2d 342, 360 (1985). Thus, it was within the province of the jury to find the

testimony of the above witnesses more credible than the testimony of defendant. Indeed, the record

reveals several reasons the jury may have reasonably discredited defendant's testimony. Defendant

testified that he stabbed Flynn in part because he thought he was going to be "jumped" by two

people. However, defendant's written statement indicated that the person standing next to Flynn ran

away as soon as defendant drew his knife. Defendant testified that Flynn had hit him in the face, yet

defendant bore no physical indicia of such a blow immediately after the incident. The jury could

have interpreted this evidence as discrediting defendant's claim that Flynn punched him. Or, on the

contrary, defendant testified that he thought Flynn's raised hand may have carried a weapon, but

defendant did not stab Flynn until after Flynn punched him. The jury could have inferred that Flynn

punched defendant but that Flynn's punching defendant would have revealed that Flynn was not



                                                  -20-
No. 2--06--0140


wielding a weapon.3 Defendant also acknowledged giving misinformation to the police. Likewise,

defendant's brother, who testified in a manner generally favorable to defendant, acknowledged

misleading police on this case and also contradicted written statements he had given police.

       Based on the record before us, we conclude that the combined testimony of all of the

witnesses provided ample evidentiary support for the conclusion that defendant did not act under an

unreasonable belief in the need for self-defense. Accordingly, we hold that, viewing the evidence

in the light most favorable to the prosecution, a rational trier of fact could have found that defendant

failed to prove a mitigating circumstance, and we reject defendant's argument to the contrary.

       Defendant's second argument on appeal is that his conviction should be reversed and this

cause remanded for retrial due to the prosecutor's allegedly improper statements during closing

rebuttal argument. A prosecutor is afforded wide latitude in making closing arguments. People v.

Blue, 189 Ill. 2d 99, 127 (2000). In closing arguments, the State may comment on the evidence and

all of the reasonable inferences arising from the evidence. Blue, 189 Ill. 2d at 127. Closing

arguments are to be viewed in their entirety, and any allegedly improper argument must be viewed

in its context within the closing argument as a whole. Blue, 189 Ill. 2d at 128.

       Defendant highlights two aspects of the State's closing rebuttal argument as improper. First,

defendant argues that the prosecutor misstated the law on second degree murder by telling the jury



       3
      We recognize the inconsistency between the notion that the
jury may not have believed defendant because it did not believe
that Flynn punched him and the notion that the jury did not
believe defendant because it believed Flynn's punching him
discredited defendant's claim that he thought Flynn had a weapon.
However, our role in examining the evidence requires us to
examine all the reasonable inferences to be drawn from the
evidence to determine if there is evidentiary support for any
ground upon which the jury may have rested its finding.

                                                 -21-
No. 2--06--0140


that defendant's belief was irrelevant. For this contention, defendant relies on the following passages

from the State's rebuttal argument:

        "His belief was clear, reasonable or unreasonable, it doesn't matter, it's not enough, it [sic]

was     unjustified in using deadly force."

And: "Nothing he believed justified his crimes."

        The defense did not object to these comments when the State made them. Though a

defendant's failure to raise both a contemporaneous objection and a posttrial objection normally

results in his waiver of the same objection on appeal (People v. Enoch, 122 Ill. 2d 176, 186 (1988)

(in order to preserve an issue on appeal, a defendant must both raise a contemporaneous objection

and raise it in his posttrial motion)), defendant urges that we review this issue as plain error. See 134

Ill. 2d R. 615(a). "[T]he plain-error doctrine allows a reviewing court to consider unpreserved error

when (1) a clear or obvious error occurs and the evidence is so closely balanced that the error alone

threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error,

or (2) a clear or obvious error occurs and that error is so serious that it affected the fairness of the

defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of

the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

        The first step of the inquiry under the plain error doctrine is to determine if the challenged

comment constituted error. Piatkowski, 225 Ill. 2d at 565. If so, then we proceed to determine

whether either of the two prongs is satisfied: whether the error affected the fairness of the trial

process or whether the evidence was closely balanced. Piatkowski, 225 Ill. 2d at 566. The State

argues that, when the above quotes are considered in their full context, they do not demonstrate error,

much less plain error. We agree with the State.



                                                  -22-
No. 2--06--0140


       The above statements from the prosecutor's closing rebuttal argument appear in context as

follows:

               "As to the Defendant's theory, you might call it mistaken self-defense. If things were

       as this defendant thought they were, the question is was he entitled to use deadly force. If

       he made an unreasonable assumption about the facts, a mistake, is he excused from his

       conduct so that the crime is reduced to second degree murder?

               [DEFENSE COUNSEL]: Objection, Your Honor.

               THE COURT: Overruled.

               I'll give you what the instructions are. I'll read them to you. Be sure if the attorneys

       misstate the instructions in any way, pay attention what [sic] I tell you and give you in way

       [sic] of written instructions.

               Proceed.

               [STATE'S ATTORNEY]: I'll read it too. *** [A] mitigating factor[] exists so as to

       reduce the offense of first degree murder to the lesser offense of second degree murder if at

       the time of the killing the defendant believes that circumstances exist which would justify

       the deadly force he uses, but his belief that such circumstances exist is unreasonable.

               So ask yourself what are the circumstances that this defendant believed were going

       on at the time. *** When you evaluate the defendant's claim, pay special attention to the

       instruction on justification and when someone is justified in using deadly force, because what

       the instruction says is a person is justified *** only if he reasonably believes that such force

       is necessary to prevent death or great bodily harm to himself.




                                                -23-
No. 2--06--0140


               The burden is on the defendant to show this mitigating factor, that this defendant's

       fear was so great, that his fear of this tall, skinny kid was so great ***, that he was justified

       in using deadly force. And remember what this defendant failed to say. We know what his

       state of mind is because he told us. All he said was he was afraid of being hurt. *** And,

       Ladies and Gentlemen, without more it doesn't meet the burden. Fear is not a justification.

       Chaos is not a justification. Size is not a justification. What this defendant actually believed

       at the time was that he was going to stab Eric Flynn. He told you that. *** His belief was

       clear, reasonable or unreasonable, it doesn't matter, it's not enough, it [sic] was unjustified

       in using deadly force.

                                                 ***

               Nobody hit this defendant. Nobody came to this defendant with a weapon. This

       defendant told [police] what happened. 'When he got close enough to me, I took my knife

       and stuck him in the chest two times, maybe more.' Nothing he believed justified his

       crimes." (Emphases added.)

       In their full context, the above emphasized comments convey the prosecutor's argument that

defendant offered no evidence of a belief, reasonable or not, that would justify his use of lethal force

against Flynn. The prosecutor was not arguing that, if defendant believed circumstances existed that

would justify his use of lethal force, that belief was irrelevant. Rather, the prosecutor was arguing

that the particular circumstances defendant testified he believed were present would not have

justified his stabbing Flynn, regardless of whether defendant reasonably or unreasonably believed

that those circumstances existed. This argument does not misstate the law. We therefore find no

error, plain or otherwise, based on the above passages.



                                                 -24-
No. 2--06--0140


       The second allegedly improper prosecution statement is the following characterization of

defendant's actions: "These were not the mistaken flailings of a frightened boy, these were the cold,

determined, and deliberate acts of an experienced knife fighter." (Emphasis in original.) Again, we

consider the quote in its full context:

       "He stabbed Eric Flynn, and the defendant wants you to believe that in a panic he pulls out

       his trusty butterfly knife, flips it open safely, and then in the heat of a fearsome attack he

       sticks this butterfly knife through Eric Flynn's upper arm ***. *** Two of this Defendant's

       knife thrusts landed exactly where this practiced knife-wielder intended, in the core of Eric

       Flynn's body. In spite of his fear, in spite of the chaos, in spite of his impulse he accurately

       lands a three-inch stab wound into the upper chest of Eric Flynn's body puncturing his lung

       three inches deep. He deliberately lands another blow in the center of Eric's chest piercing

       Eric's heart through and through. These were not the mistaken flailings of a frightened boy,

       these were the cold, determined, and deliberate acts of an experienced knife fighter."

       (Emphasis added.)

       The full context of the above quote casts the emphasized portion as part of a proper rebuttal

to the assertion that defendant stabbed Flynn out of fear. However, the crux of defendant's objection

is not the emphasized sentence as a whole, but instead the prosecutor's characterization of defendant

as "an experienced knife fighter." Defendant's argument on this point has two prongs: first, he

argues that the evidence did not support the assertion that he was an experienced knife fighter, and,

second, he argues that, even if he were an experienced knife fighter, the statement was unduly

prejudicial because it implied that defendant had been involved in similar stabbing incidents. We

consider each point in turn.



                                                -25-
No. 2--06--0140


       First, we consider whether the prosecutor's statement mischaracterized the evidence. As

noted above, in closing arguments, the State may comment on the evidence and all of the reasonable

inferences arising from the evidence. Blue, 189 Ill. 2d at 127. Defendant asserts that there was

"absolutely no evidence presented in this case from which one could reasonably infer that

[defendant] was an experienced knife fighter, or that he had ever been in a knife fight in the past."

We disagree with defendant's approach. Read in its full context, the prosecutor's description of

defendant as an "experienced knife fighter" does not beg a literal interpretation. Rather, the

comment came as part of a rebuttal to an argument that defendant acted out of panicked fear; the

comment emphasized defendant's advantage in the fight with Flynn.

       Further, we are not convinced that the prosecutor's comment strayed unduly from the

evidence. The State elicited testimony from Officer Ingardona that it took him some time to acquire

an expertise in using a butterfly knife; that testimony could support an inference that defendant's

ability to wield a butterfly knife (and to handle one, as defendant testified he did casually on the day

of the incident) exceeded that of the average person. Also, as the prosecutor pointed out in closing

rebuttal argument, the nature of Flynn's wounds--even in the midst of the excitement of the incident,

defendant was able to stab Flynn twice "in the core of [his] body"--could certainly support an

inference that defendant was capable in handling the knife. Though the further inference that

defendant had experience in knife fighting may have been weaker, we do not believe that, in context,

the prosecutor's reference to defendant's being an "experienced knife fighter" was meant to be taken

as literally as defendant would now have it. In short, we view the prosecutor's comment as a

dramatic way of emphasizing the evidence that defendant was skilled with a knife, in the context of

arguing that defendant enjoyed a clear advantage during the encounter.



                                                 -26-
No. 2--06--0140


       Second, we consider whether the prosecutor's statement was unduly prejudicial because it

implied that defendant had been involved in similar stabbing incidents. We do not agree with

defendant that the import of the prosecutor's statement was that defendant had committed other bad

acts and thus likely committed a bad act here. Again, in our view, the prosecutor's statement

advanced the argument that defendant was not panicked or overmatched during the confrontation

but instead set out to stab Flynn without subjective justification. Thus, we disagree with defendant

that the above statement was used to "emphasize that *** defendant has committed a similar crime

in order to prove that the defendant committed the crime charged."

       For this reason, we distinguish the current case from People v. Tenny, 224 Ill. App. 3d 53

(1991), a case that defendant argues is closely analogous to the current case. In Tenny, the defendant

was convicted of murder for his part in an incident in which a group of five people met at a pool hall,

traveled to a home, and killed the two people inside the home. During closing argument, the

prosecutor told the jury that three of the five accomplices, including the defendant, " 'entered [the

pool hall] together and that indicated and is evidence of the fact that they were working together that

night as a sophisticated, experienced team of killers.' " Tenny, 224 Ill. App. 3d at 63. The court,

which had already reversed and remanded the cause on an unrelated issue, deemed the prosecutor's

statement improper because it was "designed to convince the jury that the defendant had participated

in other killings with [the two other men]." Tenny, 224 Ill. App. 3d at 63. The defendant's principal

argument was that he did not participate in the killings at issue. Tenny, 224 Ill. App. 3d at 59. The

prosecutor's statement that the defendant was part of a "sophisticated, experienced team of killers"

therefore could not have been meant to rebut any assertion that the defendant was overmatched or

afraid--its context reveals it as a gratuitous comment that suggested an impermissible and irrelevant



                                                 -27-
No. 2--06--0140


inference. Here, by contrast, as we explained above, the full context of the prosecutor's description

of defendant as an "experienced knife fighter" suggests that it was not meant to imply literally that

defendant had been involved in previous knife fights. Rather, the statement served the purpose of

emphasizing defendant's advantage in the fight and thus rebutting his assertion that he acted out of

fear. For this reason, we deem Tenny inapposite, and we reject defendant's arguments regarding the

prosecutor's closing argument. As we hold that none of the prosecutor's statements during closing

rebuttal argument were improper, we reject defendant's argument that his conviction must be

reversed due to prosecutorial misconduct.

       Defendant's third argument on appeal is that his sentence was excessive. Before addressing

that argument, we recount the evidence presented at defendant's sentencing hearing. The State's first

witness at the sentencing hearing, Marcus Elmore, testified that defendant and a group of people

damaged property at Elmore's house. Elmore testified that defendant "had [a] bat and started

banging on the door; busted a couple windows out of the house, knocked down the mailbox and the

front gate." Sonja Robles, who lived in the same house, testified that, for several weeks after

defendant beat on her house, she saw defendant in a black car driving past her house three or four

times a week.

       Gary Anderson, a corrections officer, testified regarding an incident in which defendant and

another inmate entered into a fight. Anderson recalled that defendant was agitated and yelling and

that he was struggling with the two other corrections officers who were trying to restrain him. It

became necessary for the officers to restrain defendant by "forcing him into a wall." Anderson

agreed that, according to a statement defendant later gave, the fight did not start until the other

inmate had taken off his handcuffs and begun moving toward defendant. Another corrections



                                                -28-
No. 2--06--0140


officer, Matthew Bunk, testified that defendant admitted to having placed gang graffiti on prison

walls and also admitted to being part of a particular street gang.

       Mike Tischman, defendant's former juvenile probation officer, testified that he referred

defendant to an anger management program, which defendant "barely attended," and two drug and

alcohol programs, one of which defendant did not attend and one of which defendant completed

successfully. Tischman also referred defendant to a mentoring program, but defendant did not

participate in the program. Tischman recalled that defendant had several behavioral problems at

school during the 16 months Tischman served as his probation officer. Jodee Hungness, the

probation officer who took over defendant's case from Tischman, testified that defendant made

progress at a drug and alcohol program Tischman had referred him to, but that upon release

defendant had a relapse that caused Hungness to refer him to another program. Defendant attended

that program, but he did not complete an anger management program to which Hungness referred

him. Defendant's attendance at school was also sporadic. Hungness was never told that defendant

was having trouble finding transportation to any programs.

       After Flynn's parents testified regarding their loss and read a victim impact statement, the

defense called defendant's aunt, who testified that defendant's legal troubles began shortly after the

death of his grandfather, that defendant's father was an alcoholic, and that defendant had a good

relationship with his young daughter.       Melanie Romero, defendant's mother,         testified that

defendant's father was an abusive alcoholic and that the death of defendant's grandfather affected him

adversely. She further testified that defendant was unable to participate in some of the programs his

probation officers had recommended, because they were unable to find transportation.




                                                -29-
No. 2--06--0140


       The presentence report indicated that defendant, who was born in 1986, had been adjudged

a delinquent minor in 1999 for criminal damage to property, in 2001 for disorderly conduct, and in

2001 for aggravated battery. His probation was revoked in 2003 for failure to comply with the terms,

and, also in 2003, he admitted to three counts of criminal damage to property from a January 2002

incident. The report also indicated that defendant admitted to having been a member of a street gang

from 2000 to 2002.

       After hearing argument from the parties and defendant's statement in allocution, the trial

court imposed sentence as follows, in pertinent part:

               "Court in determining sentence has considered evidence in the case, considered the

       Presentence Reports, consider[ed] the financial impact of incarceration ***, considered

       evidence of aggravation and mitigation, the positive and negative things about [defendant's]

       background. ***

                                                ***

               Impact on the victim's family is the first factor I note. ***

                                                ***

               I am mindful also there is [sic] mitigating factors and certainly an impact on

       [defendant's] family. And it is tragic to a lesser degree. It is a young man who will be

       incarcerated for a very long time. There are positive things the court has noted. He is very

       young. Very young at the time of the incident. [Defendant] did complete [drug/alcohol

       treatment]. He completed an inpatient abuse program showing the ability for rehabilitation

       in that instance. [Defendant] has a dependent daughter, a young child who [sic] he has a




                                                -30-
No. 2--06--0140


      good relationship with. [Defendant] has shown remorse by expressing his apologies to the

      victim. ***

              The crime itself was not premeditated. It was spontaneous.

              *** I feel that the State has presented insufficient evidence to use gang membership

      as an aggravating factor ***.

              The defendant has a close family relationship. ***

              [Defendant has] been *** disadvantaged to the extent of [his] father's role in [his]

      life. That's a mitigating factor. ***

                                               ***

              I have considered in aggravation the baseball bat incident of August of 2004. I find

      it has been proven in demonstrating the violent nature of the defendant.

              I do rely on the December 28, 2005, evidence. And even assuming the fight involved

      in jail was mutual and that [defendant was] not at fault for starting the fight, I find that [he]

      was combative and uncooperative with corrections officers. Once again, that impacts the

      court's evaluation of whether *** [defendant has] any rehabilitative potential.

              [Defendant was] uncooperative with juvenile probation service[s]. *** [Defendant

      was] provided with substantial juvenile court assistance and services. And [he] didn't attend.

      [He] turned [his] back on it. Again affecting whether [defendant] will be a candidate for

      rehabilitation.

              [Defendant] had poor behavior in school and poor attendance, finally dropping out.

      [Defendant has] a substantial history of prior delinquency including a sentence to the

      Department of Corrections as a juvenile.



                                                -31-
No. 2--06--0140


                                                ***

               And I look now to the nature of the offense. And I have to say that I reject

       [defendant's] self-defense position that [he has] taken in this case.

               I am going to talk about the things [he] didn't do. First of all, [he] didn't leave the

       knife at home. What [he] also didn't do is [he] didn't leave it in [his] pocket and say look,

       I've got a knife, stay away from me. *** [He] didn't take the knife out of [his] pocket and

       say I've got a knife, stay[] away from me. [He] didn't slash in the air at someone and say stay

       away from me ***. [He] didn't slash at someone in a nonlethal way to warn them that way.

       *** [He] didn't only strike once. What [he] did is [he] struck three times in a lethal area of

       the body in a stabbing motion to kill somebody.

               *** And I feel it was motivated not by self-defense but by the effects of rage. And

       that's been [defendant's] constant companion in life, rage. So the nature of the offense is also

       [a] substantial basis for which the court must decide the sentence. I feel that a substantial

       sentence to the Department of Corrections is necessary so as not to deprecate the serious

       nature of the offense. I feel that a substantial sentence *** is necessary to deters [sic] others

       in this kind of conduct. And I so then sentence [defendant] to fifty years in the Department

       of Corrections."

       Defendant argues that his sentence violates the constitutional mandate that "[a]ll penalties

shall be determined both according to the seriousness of the offense and with the objective of

restoring the offender to useful citizenship." Ill. Const. 1970, art. I, §11. As the State notes, "[a]

sentence within statutory limits will not be deemed excessive unless it is greatly at variance with the

spirit and purpose of the law or manifestly disproportionate to the nature of the offense." People v.



                                                 -32-
No. 2--06--0140


Fern, 189 Ill. 2d 48, 54 (1999). A reviewing court must afford great deference to the trial court's

judgment regarding sentencing because the trial judge, having observed the defendant and the

proceedings, has a far better opportunity to consider such factors as the defendant's credibility,

demeanor, general moral character, mentality, social environment, and habits. Fern, 189 Ill. 2d at

53. Thus, "[i]n considering the propriety of a sentence, the reviewing court must proceed with great

caution and must not substitute its judgment for that of the trial court merely because it would have

weighed the factors differently" (Fern, 189 Ill. 2d at 53), and it may not reduce a defendant's sentence

unless the sentence constitutes an abuse of the trial court's discretion (People v. Streit, 142 Ill. 2d 13,

19 (1991)).

        Defendant first notes that his actions occurred in the midst of a "big brawl" and thus were not

premeditated but were taken in the face of provocation. The evidence at trial does not support this

conclusion. Although Hatfield described seeing an argument between Flynn and defendant's group,

and other witnesses testified to a brawl or a fight involving 15 or more people, no one testified to any

acts of provocation by Flynn or his associates specifically directed at defendant. None of the

witnesses testified that defendant was directly involved in the argument or brawl. Presumably,

defendant was present and saw the action. But without evidence that defendant was directly taunted

or threatened, the record does not support his claim that he was provoked. Moreover, the two

persons closest to the action when Flynn was stabbed, defendant and his brother Daniel, both said

they saw no weapon in Flynn’s hand, which makes it less likely that defendant pulled out the knife

in response to a personal attack. While defendant testified that Flynn hit him in the head, Daniel

stated to the police that he did not see Flynn strike defendant, again making it less likely that

defendant reacted to a personal attack. Defendant did not have any visible marks on his body from



                                                   -33-
No. 2--06--0140


allegedly being struck by Flynn, which calls into question defendant’s version of events. Defendant

admitted he did not attempt to run away from Flynn instead of stabbing him. Based on the evidence,

we do not see any provocation of defendant by Flynn or anyone associated with him, much less any

provocation sufficient to change the nature of the offense as the trial court viewed it and warrant a

reduced sentence.

       The trial court found that the killing was not premeditated. The evidence bears this out to

the extent that defendant did not show up at the bonfire party with a preconceived plan to kill Flynn.

However, "premeditation" is "a legal term of art meaning nothing more than ' "having made the

choice to kill." ' [Citation]." People v. Williams, 193 Ill. 2d 1, 29 (2000). Flynn suffered five stab

wounds. All but one were made by a double-edged blade that was consistent with defendant’s

butterfly knife. The one that was different, located under Flynn’s left clavicle, could have been made

in the course of medical treatment. The pathologist described a through-and-through knife wound

that produced two separate cuts on Flynn’s left arm. The pathologist could not determine whether

those were defensive wounds. Another knife wound pierced the left lung. The pathologist testified

that the fourth knife wound went through the sac covering the heart, into the left ventricular wall,

"all the way through the left ventrical [sic] and actually went through the posterior portion of the

heart." This wound was fatal and was delivered with "a deliberate force." The pathologist likened

the force used to that needed to stab a knife through a roast. The pathologist testified, "[a]s any

muscle, [the heart is] very tight, compact, so it takes deliberate force to do that." The pathologist

opined that it also took deliberate force to pierce the lung, "although not as much."

       We believe that the trial court inferred from the medical evidence that defendant, at some

point before he stabbed Flynn, made the choice to kill and that thus his act, while spontaneous, was



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calculated. That defendant did not premeditate the crime, in that he did not act pursuant to a

preconceived plan or scheme, does not in our view reduce the seriousness of his actions in choosing

to fatally stab Flynn through the heart rather than to deter Flynn (assuming deterrence was

necessary) some other way. The trial court recognized this when it addressed defendant at the

sentencing hearing and said:

       "You didn’t go for a nonlethal area of the body. You didn’t do that. You didn’t only strike

       once. What you did is you struck three times in a lethal area of the body in a stabbing motion

       to kill somebody."

       Defendant’s actions after he fatally stabbed Flynn do not bear out his claim that he stabbed

Flynn as a reaction to provocation. He ran from the scene, threw the knife in the river, and lied to

the police about stabbing Flynn. The trial court, in sentencing defendant, recognized that the

circumstances did not dictate defendant’s actions when he killed Flynn:

       "You say to me bad things happen and you blame bad things. No. It’s you. You brought the

       knife. You brought it out. You stabbed. It’s not the circumstances. You can’t blame that.

       So the nature of the offense is also [a] substantial basis for which the court must decide the

       sentence."

       To support his argument that the circumstances of the offense warranted a lower sentence,

defendant relies on four cases: People v. Steffens, 131 Ill. App. 3d 141 (1985); People v. Treadway,

138 Ill. App. 3d 899 (1985); People v. Newell, 196 Ill. App. 3d 373 (1990); and People v. Nolan,

291 Ill. App. 3d 879 (1997). Each of those cases is distinguishable.

       The murder of Eric Flynn was unlike the murder that occurred in Steffens, where the

confrontation was initiated by the victim and the murder was ultimately the result of a sudden



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escalation of the encounter between the defendant and the victim's family. Steffens, 131 Ill. App.

3d at 152. In our case, although multiple witnesses testified to the chaos at the bonfire party, none

of them except defendant himself and defendant's brother saw what led to Flynn's murder. Daniel's

trial testimony was significantly impeached by his prior statements, and defendant's testimony that

Flynn struck him was incredible. In the absence of credible eyewitness testimony that defendant was

part of the confrontation, Steffens offers no support for defendant's position. Moreover, as the trial

court pointed out, Flynn's death could have been avoided had defendant not chosen to bring the knife

to the party and to take it out and go for lethal blows to Flynn's body.

       Treadway is also distinguishable from the instant case, because it involved the imposition

of three extended-term 60-year sentences for attempt murder, armed violence, and aggravated

battery.       In Newell, the defendant was mentally retarded, he was among a group of people

involved in the shooting, someone else brought the gun used in the shooting, and the defendant did

not know of the presence of the gun. Newell, 196 Ill. App. 3d at 383.

       Finally, the victim in Nolan was the aggressor, and the defendant was attempting to back

away and extricate himself from the situation when the gun in the defendant's possession discharged

and killed the victim. Nolan, 291 Ill. App. 3d at 887. Nolan is also distinguishable from our case

because it involved an extended term.

       In sum, given the lack of credible evidence that Flynn provoked the attack and given the

medical evidence, the trial court's conclusion that the circumstances of the crime were serious

enough to warrant the sentence imposed was not unreasonable. See People v. Moreira, 378 Ill. App.

3d 120, 132 (2007).




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       Defendant next argues that the trial court failed to give adequate consideration to defendant's

rehabilitative potential in light of defendant's "relative" lack of criminal history and his youth. We

disagree. The trial court carefully considered defendant's rehabilitative potential and concluded that

it was minimal. The record demonstrates that defendant had a lengthy juvenile history, including

offenses of criminal damage to property, felony disorderly conduct, and aggravated battery while on

probation. The record also discloses that defendant did not cooperate with his probation in that he

failed to have contact with his probation officer, failed to attend classes, failed to attend anger

management groups, and failed to follow through on a Rosecrance referral. The trial court

considered these failures in assessing defendant's rehabilitative potential and stated:

       "You were uncooperative with juvenile probation service[s]. So often I sit here and say a

       young man did not have the opportunity for services, we didn't intercede to help him, and he

       ended up in this court. But in your case the system didn't fail you. You failed the system.

       You were provided with substantial juvenile court assistance and services. And you didn't

       attend. You turned your back on it. Again affecting whether you will be a candidate for

       rehabilitation. You had poor behavior in school and poor attendance, finally dropping out.

       You have a substantial history of prior delinquency including a sentence to the Department

       of Corrections as a juvenile. Although you are very young, you have limited work history

       considering you weren't in school and you have a dependent child."

The trial court also considered a fight defendant had while in jail, finding that he was "combative

and uncooperative with correction officers." The court additionally considered as reflecting on

defendant's potential for rehabilitation the "baseball bat incident" of August 2004, in which

defendant attacked a home with a baseball bat, smashing windows, a door, and the mailbox.



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        Defendant downplays the violence he used in the "baseball bat incident" by referring to it as

"an uncharged property offense." The true import of the "baseball bat incident" was not lost on the

trial court, however, which stated, "I find it has been proven in demonstrating the violent nature of

the defendant." The trial court considered defendant's "substantial history of prior delinquency

including [a] sentence to the Department of Corrections as a juvenile," along with defendant's

demonstrated violent nature, in assessing whether defendant had "any" rehabilitative potential. The

50-year sentence of imprisonment reflects not only the trial court's findings with regard to the

seriousness of the offense, but also the court's apparent conclusion that defendant possessed little

rehabilitative potential.

        Nor do we believe defendant's age merits a sentence reduction. We find People v. Evans, 373

Ill. App. 3d 948 (2007), closer to the facts in this case than the Steffens, Treadway, Newell, and

Nolan cases cited by defendant. In Evans, the appellate court upheld the defendant's aggregate 100-

year sentence for first degree murder despite the fact that the defendant was 19 years old when he

committed the murder and despite his lack of an adult criminal record. Evans, 373 Ill. App. 3d at

969. The defendant in Evans, as in our case, had a juvenile history. Evans, 373 Ill. App. 3d at 968.

Also as in our case, the killing occurred during a melee in which, the defendant claimed, he killed

the victim in self-defense. Evans, 373 Ill. App. 3d at 955. The jury was instructed on first degree

murder, self-defense, and second degree murder. Evans, 373 Ill. App. 3d at 955. In upholding the

100-year sentence (55 years for first degree murder and 45 consecutive years for discharging a

firearm), the appellate court pointed out that the sentence was well within the statutory limits and

that the trial court properly considered all factors in sentencing the defendant. Evans, 373 Ill. App.

3d at 969.



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       We agree with the dissent that People v. Stacey, 193 Ill. 2d 203 (2000), held that an appellate

court may reduce a sentence that is within statutory limits only where it is so out of line with the

spirit and purpose of the law as to constitute an abuse of discretion by the trial judge. Stacey, 193

Ill. 2d at 210. The dissent relies on the cases cited by defendant in support of his argument that his

sentence was excessive, to buttress its position that defendant's sentence here should be reduced.

We have already distinguished those cases.

       While the dissent appropriates Stacey's analysis, where the court held that the "level of

seriousness of the offense[]" did not warrant the sentence imposed (Stacey, 193 Ill. 2d at 211), in fact

the dissent would have us substitute our judgment for that of the trial court. Apparently, this is

because the dissent sees defendant's actions in murdering Flynn during the course of a heated melee

at a homecoming bonfire party as not so serious. The trial court weighed the facts and circumstances

surrounding the offense, but (unlike the dissent) it also simultaneously weighed the other prong of

the constitutional limitation on sentencing, that is, defendant's rehabilitative potential. While we do

not quarrel with the dissent's representation of the constitutional analysis that Stacey applied, the

facts in Stacey were quite different from those here, and, in our view, do not suggest that a similar

result should obtain.

       In Stacey, the trial court imposed two consecutive 25-year sentences for momentarily

touching the breasts of two young girls, over their clothing. Stacey, 193 Ill. 2d at 208. The sentences

resulted from the defendant's prior Class 2 convictions, which made him eligible for Class X

sentencing. Stacey, 193 Ill. 2d at 210. Our supreme court made a point of noting the classes of the

crimes of which the defendant was actually convicted. Indeed, the trial court meted out such severe

sentences for crimes that were only Class 2 felonies (one of which was an enhanced Class 2 felony),



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No. 2--06--0140


which under other circumstances would not have carried such great punishment. In reducing the

defendant's sentences, our supreme court held, "Although such behavior is appalling and harmful,

it is not severe enough to warrant a 25-year sentence." Stacey, 193 Ill. 2d at 210. The unique facts

that resulted in the excessive sentences in Stacey are not present in our case. Accordingly, we affirm

defendant's sentence.

       Defendant's final argument on appeal is that the trial court erred in imposing four years of

MSR at the end of defendant's sentence. As the State concedes, the trial court was statutorily

authorized to impose only a three-year term of MSR. See 730 ILCS 5/5--8--1(d)(1) (West 2004).

We therefore agree with defendant that his sentence should be modified to reflect the statutorily

authorized period of MSR.

       For the foregoing reasons, we affirm as modified the judgment of the circuit court of

Winnebago County.

       Affirmed as modified.

       BURKE, J., concurs.

       JUSTICE O'MALLEY, concurring in part and dissenting in part:

       I disagree with the majority's decision to affirm defendant's sentence. For the reasons that

follow, I would reduce defendant's sentence to 35 years' imprisonment.

       As the majority notes, our constitution requires that "[a]ll penalties shall be determined both

according to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship." Ill. Const. 1970, art. I, §11. Also as the majority notes, "[i]n considering the propriety

of a sentence, the reviewing court must proceed with great caution and must not substitute its

judgment for that of the trial court merely because it would have weighed the factors differently"



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(Fern, 189 Ill. 2d at 53), and it may not reduce a defendant's sentence unless the sentence constitutes

an abuse of the trial court's discretion (People v. Streit, 142 Ill. 2d 13, 19 (1991)).

        The deference to be given a trial court's sentencing decision is well illustrated by our supreme

court's decision in Streit. There, a defendant who had no prior criminal history, was gainfully

employed, and showed remorse for her actions pled guilty to two counts of benefits fraud, which she

had perpetrated in part to help make house payments and pay for clothes for her children. Streit, 142

Ill. 2d at 17. The State recommended that she be sentenced to 30 months' probation. However, the

trial court imposed a sentence of two years' imprisonment. Streit, 142 Ill. 2d at 18. The appellate

court reduced the sentence because, in its view, the trial court abused its discretion by "ignor[ing]

compelling mitigating circumstances" and "rel[ying] on only one aggravating factor." Streit, 142 Ill.

2d at 19. The supreme court reinstated the trial court's sentence. In so doing, the supreme court

offered no independent discussion of the factors in mitigation and aggravation, but instead simply

observed that the trial court had considered several of each type of factor and that "it is the province

of the trial court to balance these factors and make a reasoned decision as to the appropriate

punishment in each case." Streit, 142 Ill. 2d at 20-21. Thus, Streit implies very strongly that a

sentencing decision must be upheld on review so long as the trial court considers factors in

mitigation and aggravation, regardless of what relative weight the trial court places on those factors.



        However, even though the supreme court has indicated that a reviewing court has virtually

no oversight over a trial court's weighing of the sentencing factors, it has also indicated that the trial

court's discretion in sentencing "is not without limitation." People v. Stacey, 193 Ill. 2d 203, 209

(2000). As noted above, notwithstanding the discretion afforded the trial court in sentencing matters,



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No. 2--06--0140


a sentence within the statutory limits "will be deemed excessive and the result of an abuse of

discretion by the trial court where the sentence is greatly at variance with the spirit and purpose of

the law, or manifestly disproportionate to the nature of the offense." Stacey, 193 Ill. 2d at 210.

Under those circumstances, a reviewing court is empowered under Supreme Court Rule 615(b)(4)

(134 Ill. 2d R. 615(b)(4)) to reduce the sentence imposed by the trial court, because Illinois courts

"must adhere to our constitution's mandate that penalties be determined according to the seriousness

of the offense." Stacey, 193 Ill. 2d at 210-11; see Ill. Const. 1970, art I, §11 (sentences must be

determined "both according to the seriousness of the offense and with the objective of restoring the

offender to useful citizenship").

       In Stacey, the supreme court invoked the constitutional mandate to reduce a defendant's

excessive sentences. In reaching its holding, the court relied exclusively on "the nature of the

crimes" to determine that the defendant's sentences were unconstitutionally excessive, and it

expressly stated that it was not reweighing "any aggravating or mitigating factors." Stacey, 193 Ill.

2d at 210. The rule from Streit and Stacey, then, is that a reviewing court may not reduce a sentence

based on the relative strength of the mitigating and aggravating sentencing factors but may reduce

a sentence when, based on the nature of the crimes or the circumstances of the case, the sentence

violates article I, section 11, of the Illinois Constitution. The question here becomes when a sentence

within the statutory limits may be deemed so excessive as to trigger a reviewing court's constitutional

obligation to provide relief. Defendant directs us to several cases that provide guidance.

       In People v. Steffens, 131 Ill. App. 3d 141 (1985), the defendant and the eventual murder

victim "had a verbal altercation regarding the speed of [the] defendant's car" outside the victim's

home. Steffens, 131 Ill. App. 3d at 142. After the altercation, the defendant drove away, and the



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No. 2--06--0140


victim entered his house. Steffens, 131 Ill. App. 3d at 142-43. However, the defendant later

returned, and the victim and several members of his family went outside. Steffens, 131 Ill. App. 3d

at 143. Though there was some conflict in the testimony, it generally showed that, after a short

confrontation, the victim started to walk away from the defendant's car and the defendant

accelerated, swerved toward the victim, hit the victim, and dragged him under the car for an

appreciable distance (the victim died as a result). See Steffens, 131 Ill. App. 3d at 143-45. The trial

court imposed a 30-year sentence (the midpoint of the then applicable 20- to 40-year range).

Steffens, 131 Ill. App. 3d at 151. The appellate court reduced the sentence to 20 years. It reasoned

as follows:

       "In the present case, the offense was not a calculated murder. The confrontation between

       [the] defendant and the victim was initiated by the victim, and, even though [the] defendant

       returned to the scene apparently to cause some sort of trouble, the murder itself was the result

       of a sudden escalation of the encounter between [the] defendant and the victim's family. We

       particularly note the short period of time which elapsed, and, taken in context, the offense

       did not approach [a premeditated attack]." Steffens, 131 Ill. App. 3d at 152.

The court also noted the defendant's rehabilitative potential based on his youth (he was 16 at the time

of the offense), his desire to continue his education, and his lack of a violent criminal history.

Steffens, 131 Ill. App. 3d at 152-53.

       In People v. Treadway, 138 Ill. App. 3d 899 (1985), the defendant was convicted of and

sentenced for attempted murder, armed violence, and aggravated assault in connection with an

incident in which he forced a female bar patron into a back alley, stabbed her repeatedly, and also

slashed a man who came to her aid. The appellate court reduced the defendant's two concurrent 60-



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No. 2--06--0140


year sentences to 30 years apiece, based primarily on the defendant's rehabilitative potential.

Treadway, 138 Ill. App. 3d at 905. The court noted that the defendant was only 24 years old, had

suffered from a drug and alcohol problem since a young age but was taking steps to improve, had

only a "minor" criminal history (the court did not further describe the defendant's criminal history),

had earned a high school diploma while awaiting trial, and was the father of a young child.

Treadway, 138 Ill. App. 3d at 905. The court also briefly considered the nature of the offenses,

which it concluded were "perpetrated in a fleeting moment of intoxicated rage upon a stranger."

Treadway, 138 Ill. App. 3d at 905.

       In People v. Newell, 196 Ill. App. 3d 373 (1990), the defendant was with a group of people

who chartered a limousine and murdered the driver. The defendant was sentenced to 60 years'

imprisonment, but the appellate court reduced the sentence to 30 years. The first expressed rationale

the appellate court offered for reducing the sentence was that the nature and circumstances of the

offense did not justify the penalty. The court summarized the point as follows:

               "[I]n the instant case, [the] defendant was amongst a group of people involved in a

       shooting, another member of the group brought the gun used in the shooting, and [the]

       defendant has repeatedly stated that he did not know a member of the group carried a gun the

       day of the murder. Taken in its proper context, we believe the defendant's actions do not

       compare to a calculated, premeditated murderer." Newell, 196 Ill. App. 3d at 383.

The court also noted that the defendant's age (he was 17 at the time of the offense) was an indicator

of rehabilitative potential. Newell, 196 Ill. App. 3d at 383.

       In People v. Nolan, 291 Ill. App. 3d 879 (1997), the defendant was convicted of second

degree murder in connection with an incident in which he fatally shot a shopkeeper who suspected



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the defendant of shoplifting and aggressively approached him, yelled at him, grabbed his wrist, and

may have tried to search his pockets. In reducing the defendant's sentence from 30 years to 15, the

appellate court reasoned as follows:

               "As the defendant contends, the 'factual matrix surrounding the shooting' does not

       warrant a 30-year prison term. It is clear that [the shopkeeper] was the aggressor in the

       encounter ***. The evidence consistently showed that [the defendant] was attempting to

       back away from the encounter and extract himself from the situation. The shooting was not

       an act of plan or premeditation. Although [the defendant] was unable to prove [the

       shopkeeper] reached for the gun and the gun went off accidentally, this was a close case and

       [the defendant] carried his burden of proving mitigating factors that reduced the offense to

       second degree murder." Nolan, 291 Ill. App. 3d at 887.

The court also briefly observed that the defendant's two prior felony convictions did not indicate that

he was "a dangerously aggressive criminal." Nolan, 291 Ill. App. 3d at 887.

       The nature and circumstances of defendant's crime share many parallels with the above cases.

Most significantly, the courts in Steffens, Newell, and Nolan specifically relied on the fact that the

defendants' actions were not premeditated, and the court in Treadway relied in part on the idea that

the defendant's actions were perpetrated in a "fleeting moment" of rage. Likewise here, though the

evidence did not demonstrate facts sufficient to mitigate his crime to second degree murder, as the

trial court noted, the evidence did not show that the act was premeditated in the sense that defendant

conceived it before the brawl commenced. Nor was his act performed in cold blood--the testimony

uniformly describes the escalating tensions among groups at the bonfire party. Like the defendant

in Steffens, defendant here had suffered some provocation from either the victim or someone



                                                 -45-
No. 2--06--0140


associated with the victim, even if that provocation was insufficient to provide legal justification for

defendant's actions. Further, like the defendant in Nolan and likely the defendant in Steffens, there

was at least some threat of physical violence made towards defendant before he acted. While none

of this serves to justify defendant's actions, it does serve to distinguish his crime from those that

warrant maximum or near-maximum sentences. Defendant's 50-year sentence, which rests on the

high end of the 20- to 60-year statutory range (see 730 ILCS 5/5--8--1(a)(1)(a) (West 2004)), is not

commensurate with the circumstances; though all first degree murder cases are both tragic and

reprehensible, I struggle to envision what factual scenario would justify a sentence lower than 50

years if this one does not.

       In my view, the unique circumstances of this case compel the conclusion that the trial court's

imposition of a 50-year term of imprisonment violates the constitutional limitations on criminal

sentencing, as defendant's sentence is manifestly disproportionate to the nature of the offense.

Pursuant to our power under Rule 615(b)(4), I would reduce defendant's sentence from 50 years to

35.

       In so stating, I briefly address some points raised by the majority. The majority very strongly

argues that, even if defendant did not "premeditate" the murder here, he "made the choice to kill"

before stabbing Flynn. Slip op. at 33. Of course, I agree that defendant made the choice to kill or

inflict serious harm--that conclusion is implicit, and required, in my agreement to affirm defendant's

conviction of first degree murder. My point is that the circumstances of this murder do not warrant

the sentence imposed. Thus, the majority does not undercut my position when it makes several

statements directed at the ideas that the circumstances here do not excuse defendant's crime or that

defendant acted with deliberate force. See slip op. at 32 ("both said they saw no weapon in Flynn's



                                                 -46-
No. 2--06--0140


hand, which makes it less likely that defendant pulled out the knife in response to a personal attack");

slip op. at 32 ("Defendant admitted he did not attempt to run away from Flynn instead of stabbing

him"); slip op. at 33 ("defendant, at some point before he stabbed Flynn, made the choice to kill, and

thus his act, while spontaneous, was calculated"). In response, I repeat that, if I disagreed with any

of these statements, I would not vote to affirm defendant's conviction of first degree murder. The

question I discuss above is whether the sentence imposed by the trial court was warranted; I would

hold that it was not.

       The majority also takes issue with the idea that defendant suffered some provocation,

because, according to the majority, there was no credible evidence that there was any provocation

"specifically directed at defendant." Slip op. at 32. However, the point that defendant suffered

provocation is not that defendant confronted a direct threat (again, that would raise a serious question

regarding whether we should affirm his first degree murder conviction), but that he was part of a

group that became involved in an immediate and escalating, "in your face" confrontation with other

partygoers, thus making this tragedy markedly different from, e.g., a drive-by shooting.

       I understand that the majority considers a wider range of factors in affirming defendant's

sentence than I do in arguing that it should be reduced. I offer two explanations for my more narrow

analysis. First, I confine my analysis to the constitutional limitation applied in Stacey; I do not

engage in a review of the trial court's overall sentencing determination based on all of the

aggravating and mitigating factors the trial court was compelled to consider. My approach mirrors

the approach taken in Stacey, where our supreme court held a sentence to be unconstitutionally

excessive based solely on the nature of the offenses. See Stacey, 193 Ill. 2d at 210-11. Second, as

noted above, our constitution provides two limitations on criminal sentencing: sentences must be



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No. 2--06--0140


determined "both according to the seriousness of the offense and with the objective of restoring the

offender to useful citizenship." Ill. Const. 1970, art. I, §11. A sentence must succeed on both of

these tests in order to pass constitutional muster. I would hold that the sentence here fails the first

test, regardless of how it measures on the second test.4

       Based on the above analysis, I would reduce defendant's sentence to 35 years.




       4
      That said, I observe that there are indicia of defendant's
rehabilitative potential sufficient to refute any argument that
defendant's sentence, even if excessive in light of only the
seriousness of the offense, was justified by his lack of
rehabilitative potential. Here, just as in Steffens and Newell,
defendant was very young at the time of the incident. Further,
though defendant had a history of juvenile adjudications, I note
that the only previous adjudication that could by its label be
considered a result of violence, his aggravated battery
adjudication, was aggravated not because it involved a weapon but
because it took place on a public way. See 720 ILCS 5/12--
4(b)(8) (West 2000). Additionally, like the defendant in
Treadway, defendant is the father of a young child and had taken
some positive steps (though, as the dissent notes, not all
possible positive steps) in alcohol and drug treatment programs.
Under applicable truth-in-sentencing laws, defendant is required
to serve 100% of his sentence without any credit for good
conduct. See 730 ILCS 5/3--6--3 (West 2004). Thus, if
defendant's 50-year sentence were to stand, defendant would be
released at age 68, having spent almost three-fourths of his life
in prison. Such a sentence does not advance the constitutional
objective of returning offenders to useful citizenship.

                                                 -48-
