                                                                            FOURTH DIVISION
                                                                            MAY 22, 2008




Nos. 1-06-3753 and 1-07-0912 (Consolidated)


THE PEOPLE OF THE STATE OF ILLINOIS,                 )     Appeal from the
                                                     )     Circuit Court of
       Plaintiff-Appellee,                           )     Cook County.
                                                     )
               v.                                    )     Nos. 06 CR 12142,
                                                     )          06 CR 12143
                                                     )
ABDUL ROBINSON,                               )      Honorable
                                                     )     John A. Wasilewski.
       Defendant-Appellant.                          )     Judge Presiding.


       JUSTICE CAMPBELL delivered the opinion of the court:

       Defendant Abdul Robinson was charged in two separate incidents occurring on May 9

and 13, 2006. Following a jury trial on all charges, defendant was found guilty of armed robbery

and aggravated vehicular hijacking of Jamie Jenkins on May 9, and guilty of two counts of armed

robbery and vehicular invasion involving Kelitha Nelson and Shamari Stewart on May 13. The

trial court sentenced defendant to two concurrent 25-year terms in prison on the convictions for

the May 9 armed robbery and aggravated vehicular hijacking, and to concurrent terms of 25 and

15 years on one count apiece of the May 13 armed robbery and vehicular invasion. Defendant

now appeals.

       The following facts were adduced at trial. Jenkins testified that just after midnight on

May 9, 2006, she was walking near her home at 5353 S. Aberdeen Street in Chicago, when she

noticed defendant walking across the street at the same pace as her. Jenkins testified that as she
1-06-3753 and 1-07-0912 (Consolidated)


turned to return to her house, defendant crossed the street toward her, grabbed her sweatshirt and

said, "Bitch, what you got?" Jenkins testified that defendant was carrying a silver object that

looked like a hammer. Jenkins testified that defendant then took a $5 bill from her pocket.

       Jenkins tried to turn away from defendant, but he came up behind her and hit her in her

head and back with the hammer, while trying to get her keys from her pocket. Jenkins also

testified that defendant bit her stomach. According to Jenkins, her husband's cousin--whom she

knew only as "Gary"--pulled defendant away from her. Jenkins headed for her mother-in-law's

house, which was nearby, to telephone the police. En route, Jenkins saw the defendant backing

her car from where it was parked into the street. Jenkins testified that at the time of the attack,

she was three houses away from her car, which she had parked four hours earlier when she had

come home from work.

       Jenkins further testified that the police telephoned her on the evening of May 13 or 14,

2006, to inform her that they had recovered her car and to ask her to view a lineup. Jenkins

identified defendant as the man she identified at the lineup.

       Stewart, an E-3 Navy officer, testified on the afternoon of May 13, 2006, he and Nelson

were driving his vehicle in the vicinity of 51st Street and Ashland, trying to sell approximately

25 pairs of expensive athletic shoes for extra money. Stewart testified that defendant approached

them about buying a pair, but ultimately did not buy any. Later, after Stewart and Nelson

relocated to the vicinity of 55th Street and Ashland, two girls looked at the shoes and took a

business card with Stewart's cellular telephone number.

       Soon thereafter, Stewart received a telephone call from the girls, stating that they wanted

to buy some shoes and asking to meet them at the 6200 block of South Winchester Ave. Upon



                                                  2
1-06-3753 and 1-07-0912 (Consolidated)


reaching the corner of that block, one of the girls directed them into the alley, where one of the

girls asked them to wait while they got the money.

       Stewart testified that defendant appeared and reached inside the car, trying to remove the

keys. Stewart attempted to drive away, but a struggle ensued, during which defendant punched

Stewart and struck him with a pipe. Defendant struck Stewart four times, including below the

eye, the top of his head, the right side of his forehead and above an ear. According to Stewart,

defendant ordered that they give him the shoes, whereupon Nelson gave defendant shoes from

the back of the car, while defendant removed shoes from the trunk. Stewart testified that he saw

defendant putting the shoes in a garage. Stewart testified that defendant told them to leave or he

would kill them, whereupon they drove away. The pair drove to Nelson's house, where Nelson's

mother phoned the police.

       Nelson testified that after Stewart was taken to the hospital, she returned to the crime

scene with Chicago police officer Haytham Mohammad and his partner, Officer Romanowski.

Nelson identified defendant at the scene, wearing a brand new pair of shows that appeared to be

one of the pairs stolen.

       Officer Mohammad testified that defendant was exiting a black Pontiac when he, his

partner and Nelson arrived at the crime scene. Officer Mohammad testified that defendant

attempted to flee when approached, but was ultimately apprehended. Officer Mohammad also

ran the license plates on the Pontiac and discovered the car was owned by Jenkins. Officer

Mohammad testified that he did not recover anything from the Pontiac. Officer Romanowski

testified that a metal pipe was recovered from the driver's side of Stewart's car. The police also

found empty shoe boxes in the alley.



                                                 3
1-06-3753 and 1-07-0912 (Consolidated)


       At the close of the State's case, defendant moved for a directed finding. The trial court

denied the motion. Defendant presented no witnesses. Following closing argument and jury

deliberations, the jury found defendant guilty of armed robbery and aggravated vehicular

hijacking of Jamie Jenkins on May 9, and guilty of two counts of armed robbery and vehicular

invasion involving Kelitha Nelson and Shamari Stewart on May 13. The trial court sentenced

defendant to two concurrent 25-year terms in prison on the convictions for the May 9 armed

robbery and aggravated vehicular hijacking, and to concurrent terms of 25 and 15 years on one

count apiece of the May 13 armed robbery and vehicular invasion. The trial court further found

that defendant must serve 85% of the latter sentences because he inflicted great bodily harm on

Stewart.

                                                  I

       On appeal, defendant first argues that the State failed to prove him guilty beyond a

reasonable doubt of aggravated vehicular hijacking and vehicular hijacking because there was no

evidence that Jenkins was in the "immediate presence" of her car at the time it was forcibly taken

from her. In considering a respondent's challenge to the sufficiency of the evidence, the relevant

question is whether, after viewing all of the evidence in the light most favorable to the State, any

rational trier of fact could have found the respondent guilty beyond a reasonable doubt. People v.

Tenney, 205 Ill. 2d 411, 427 (2002). However, where the facts are not in dispute, a defendant's

guilt is a question of law, which is reviewed de novo. People v. Smith, 191 Ill. 2d 408, 411

(2000). "A person commits vehicular hijacking when he or she takes a motor vehicle from the

person or the immediate presence of another by the use of force or by threatening the imminent

use of force." 720 ILCS 5/18-3(a) (West 2004).



                                                 4
1-06-3753 and 1-07-0912 (Consolidated)


       Defendant relies primarily on two cases that discuss the meaning of "immediate presence"

as used in the vehicular hijacking statute: People v. Cooksey, 309 Ill. App. 3d 839 (1999), and

People v. McGee, 326 Ill. App. 3d 165 (2001). In Cooksey, as the victim left a mall entrance,

preparing to make a bank deposit, she was jumped by the defendant. Cooksey, 309 Ill. App. 3d

at 842. She dropped the deposit bag and ran for help. The defendant caught up with her, stuck

"something" in her back, and demanded her car keys. The victim gave her keys to the defendant

and then ran into the mall. A short time later she returned to the parking lot and her car was

gone. Cooksey, 309 Ill. App. 3d at 842. The defendant was convicted of vehicular hijacking and

argued on appeal that the State failed to prove him guilty of that offense, specifically, that the

victim was in the "immediate presence" of the vehicle when it was taken. Cooksey, 309 Ill. App.

3d at 846. Noting that the case was one of first impression since no Illinois case had interpreted

the term "immediate presence," the Cooksey court first looked to the legislative debates, finding

they made it clear that the driver or passenger must be in the "immediate vicinity of the car" at

the time it is taken to constitute "immediate presence." Cooksey, 309 Ill. App. 3d at 848. The

Cooksey court concluded that the State failed to prove the defendant guilty of vehicular hijacking

because the undisputed evidence showed that at no time did the victim approach her car, she was

25 feet away from it when the defendant first jumped her, and, when she ran, she fled away from

the car, not toward it. Cooksey, 309 Ill. App. 3d at 848.

       In McGee, the defendant was convicted of aggravated vehicular hijacking and maintained

on appeal that the State failed to prove him guilty beyond a reasonable doubt because it failed to

prove he took the victim's car from her "immediate presence." McGee, 326 Ill. App. 3d at 166.

The evidence showed that the victim was attacked inside a home, at which time her attackers



                                                  5
1-06-3753 and 1-07-0912 (Consolidated)


took her car keys. McGee, 326 Ill. App. 3d at 167. They then fled from the home in her car,

leaving her behind in the house. McGee, 326 Ill. App. 3d at 167. The McGee court ruled that

"immediate presence" meant that the "vehicle is within the immediate control of the alleged

victim at the time of the occurrence." McGee, 326 Ill. App. 3d at 170. The McGee court

reasoned:

               "Here, as in Cooksey, the victim's keys were taken by force or

               threat of force when the victim's vehicle was located some distance

               from the occurrence. While such conduct may constitute robbery

               or some other offense, it does not constitute the offense of

               vehicular hijacking. In this instance, the victim's car was in the

               driveway outside the residence in which she was assaulted and her

               keys were taken. This factual scenario is similar to one in which a

               car is taken in a mall parking lot some distance from the victim, or

               one in which a car is taken while the victim is in a store." McGee,

               326 Ill. App. 3d at 170.

Accordingly, this court held that the State failed to prove the defendant guilty of aggravated

vehicular hijacking because the victim's keys were taken from her by force when her vehicle was

located some distance from that occurrence. McGee, 326 Ill. App. 3d at 170.

       In contrast, the State relies on In re Ricardo A., 356 Ill. App. 3d 980 (2005). In that case,

Jimmy Fernandez testified that he was driving his father's care when he was waved into a

driveway by one of the minor respondents. Fernandez had exited the car and had his car keys

with him when he was beaten by six people. Ricardo A., 356 Ill. App. 3d at 983. As the



                                                 6
1-06-3753 and 1-07-0912 (Consolidated)


attackers started to disburse, he was walking away when he heard his car start and then saw it

drive past him, whereupon he had words with the driver. Fernandez testified that he was 20 to 25

feet away from the car when it started, 5 to 10 feet away as the car was taken, and ultimately

about a foot away as it drove past him. Ricardo A., 356 Ill. App. 3d at 984.

       The Ricardo A. court stated:

                         "Neither Cooksey nor McGee is instructive in the instant

               case. Cooksey is distinguishable because it is clear the victim there

               was never less than 25 feet from her car, whereas here, the

               evidence showed that Fernandez was 5 to 10 feet away and even 1

               foot away. McGee is also distinguishable since the victim was

               inside a house and nowhere near her car when it was taken.

               Moreover, neither case defines 'immediate,' nor gives guidance in

               that regard. 'Immediate' means 'being near at hand: not far apart or

               distant.' Webster's Third New International Dictionary 1129

               (1993).

                         While it is true Fernandez testified that he walked away

               from the car after he was beaten, he also testified that he turned

               around thereafter. Although respondents rely on Fernandez's

               testimony that he was 20 to 25 feet away when the car started, there

               are problems with this testimony. First, where respondent's

               counsel obtained the distance of 20 feet is not evident from the

               record. Nowhere prior to this time was there any testimony from



                                                  7
1-06-3753 and 1-07-0912 (Consolidated)


               Fernandez in connection with a distance of 20 feet. Second, in

               stating the distance for the record, the distance of 20 to 25 feet was

               respondent's attorney's estimation, not words out of Fernandez's

               mouth. In any event, despite this testimony, Fernandez positively

               stated on direct examination that he was within 5 to 10 feet of the

               car when it was taken from him. Additionally, as he was talking to

               Ricardo through the window, Fernandez stated he was within one

               foot of the car when Ricardo drove by. We find that this distance

               is not far apart or distant and fulfills the definition of 'being near or

               at hand,' particularly since Fernandez stated he could have touched

               the car. Obviously, this is at hand. Reviewing the evidence in the

               light most favorable to the State, we find that the evidence was

               sufficient for a rational trier of fact to find respondents guilty

               beyond a reasonable doubt on the charges of aggravated vehicular

               hijacking and vehicular hijacking." Ricardo A., 356 Ill. App. 3d at

               991-92.

       In this case, the only testimony regarding "immediate presence" is the testimony from

Jenkins that at the time of the attack, she was three houses away from her car. There does not

appear to be any evidence as to how close or distant Jenkins was when the car was taken. There

appears to be no evidence that Jenkins was in "immediate vicinity of the car" as the Cooksey

court would require, or that the vehicle was "within the immediate control of the victim at the

time of the occurrence," as the McGee court would require. Nor does there appear that the car



                                                   8
1-06-3753 and 1-07-0912 (Consolidated)


was "near or at hand" to Jenkins under Ricardo A., as the court there focused on a distance of

under 20 feet.

       In short, the State failed to prove defendant guilty beyond a reasonable doubt of

aggravated vehicular hijacking as to the Jenkins incident. Defendant's conviction on this charge

is reversed and the accompanying sentence is vacated. Defendant raises no issue as to the

sufficiency of the evidence to support the remaining convictions.

                                                 II

       Defendant next contends that the trial judge erred in imposing truth-in-sentencing on the

defendant's sentence for armed robbery because the victim suffered great bodily harm. On

appeal, the defendant argues that the truth-in-sentencing provision of section 3-6-3(a)(2)(iii) of

the Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2)(iii) (West 2004)) violates his due

process and jury trial rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120

S. Ct. 2348 (2000), which holds that (except for a prior conviction) any fact that increases the

penalty for a crime beyond the statutory maximum must be submitted to the jury and proved

beyond a reasonable doubt.

       This court has repeatedly rejected this argument, as the statute does not change the

prescribed maximum penalty of the underlying offense. People v. Bell, 327 Ill. App. 3d 238,

241-42 (2002); People v. Newbolds, 325 Ill. App. 3d 192, 195-96 (2001); People v. Garry, 323

Ill. App. 3d 292, 299 (2001). Nevertheless, defendant contends this court should not follow these

precedents in light of the United States Supreme Court opinions in Cunningham v. California,

549 U.S. ____, ____, 166 L. Ed. 2d 856, 868-69, 127 S. Ct. 856, 863-64 (2007), and Blakely v.

Washington, 542 U.S. 296, 304-05, 159 L. Ed. 2d 403, 414, 124 S. Ct. 2531, 2537-38 (2004).



                                                 9
1-06-3753 and 1-07-0912 (Consolidated)


However, the sentencing statutes in those cases involved judicial fact-finding as to the sentence

imposed. In contrast, our truth-in-sentencing law may well affect the sentence defendant

ultimately serves, but it does not affect the sentence imposed; moreover, given that it concerns

good-conduct credit, its application is not definite, immediate, or automatic. See People v.

Frison, 365 Ill. App. 3d 932, 934 (2006). Accordingly, defendant's argument is unpersuasive.

                                                  III

       Finally, defendant contends that the trial court abused its discretion in all of its sentencing

by inadequately considering mitigating factors and his potential for rehabilitation. Generally,

sentencing decisions are a matter entirely within the discretion of the circuit court which

reviewing courts will not disturb absent an abuse of that discretion. People v. Rogers, 197 Ill. 2d

216, 223 (2001).

       In this case, the sentences imposed were within the statutory limits. When mitigating

evidence is before the court, it is presumed that the judge considered the evidence, absent some

indication, other than the sentence imposed, to the contrary. People v. Canet, 218 Ill. App. 3d

855, 864 (1991). In this case, the trial court specifically stated that it considered the mitigating

factors, including those not mentioned by statute, but raised by defense counsel at the sentencing

hearing. However, given our decision to reverse defendant's conviction and vacate his sentence

for aggravated vehicular hijacking, this court considers whether remandment is required for

resentencing on the remaining convictions. There is some case law suggesting that where it

cannot be determined with certainty that the vacated counts did not influence the judge's

sentencing decision, resentencing is required. See People v. Guajardo, 262 Ill. App. 3d 747, 772-

73 (1994). On the other hand, where the trial court simply considered the acts of violence



                                                  10
1-06-3753 and 1-07-0912 (Consolidated)


involved, as opposed to the fact of a conviction, no remand is required. See People v. Aleman,

355 Ill. App. 3d 619, 627-28 (2005). In this case, the transcript shows that the trial court focused

on the violence of the underlying acts and did not refer to the conviction for aggravated vehicular

hijacking. Accordingly, this court need not remand the case to the circuit court for resentencing.

       For all of the aforementioned reasons, defendant's conviction for aggravated vehicular

hijacking is reversed and the sentence for that offense is vacated. Defendant's remaining

convictions and sentences stand.

       Reversed and vacated in part; affirmed in part.

       NEVILLE, P.J., and O'BRIEN, J., concur.




                                                11
