                           Illinois Official Reports

                                   Appellate Court



                      People v. Ramirez, 2015 IL App (1st) 130022



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



District & No.        First District, Third Division
                      Docket No. 1-13-0022



Filed                 April 22, 2015
Modified upon
denial of rehearing   May 27, 2015

Decision Under        Appeal from the Circuit Court of Cook County, No. 11-CR-14064; the
Review                Hon. Matthew E. Coghlan, Judge, presiding.



Judgment              Affirmed; mittimus corrected.


Counsel on            Michael J. Pelletier, Alan D. Goldberg, and Alison L.S. Shah, all of
Appeal                State Appellate Defender’s Office, of Chicago, for appellant.

                      Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                      Christine Cook, and Monique Patton, Assistant State’s Attorneys, of
                      counsel), for the People.



Panel                 JUSTICE MASON delivered the judgment of the court, with opinion.
                      Presiding Justice Pucinski and Justice Hyman concurred in the
                      judgment and opinion.
                                             OPINION

¶1       Following a jury trial, defendant-appellant Daniel Ramirez was convicted of four counts of
     attempted first degree murder and sentenced to four concurrent terms of 40 years in prison. On
     appeal, Ramirez contends that the trial court erred in imposing a sentence of 40 years because
     the court (1) improperly considered the use of a firearm when such use was already the subject
     of a mandatory firearm enhancement and (2) erroneously relied on a fact not in
     evidence–Ramirez’s gang membership–in aggravation. Finding Ramirez’s arguments
     forfeited, we affirm the judgment of the circuit court of Cook County. We further reject the
     State’s contention that the trial court was required to sentence Ramirez to consecutive terms of
     imprisonment on each count of attempted first degree murder.

¶2                                          BACKGROUND
¶3       Because the issues raised on appeal relate only to Ramirez’s sentence, we will limit our
     recitation of the facts to those relevant to the sentencing issues.
¶4       On August 9, 2011, around 3:30 p.m., shortly after the students at Sinclair High School in
     Chicago were dismissed, someone on the street fired multiple shots into a green van that was
     driving north on Paulina Street. Four young people were in the van and one of them, Rebecca
     Magana, a Sinclair student who had just been picked up after school, was shot in the arm. She
     was treated at the hospital and released but the bullet remained lodged in her arm.
¶5       Several days later, after two eyewitnesses identified Ramirez as the shooter in a photo array
     and one later identified him in a police lineup, Ramirez was arrested. He was ultimately
     charged with multiple counts of attempted first degree murder and one count of aggravated
     battery.
¶6       Witnesses at trial included the four occupants of the green van, the school principal, a
     student to whom the principal had been speaking when the shooting occurred, and a student
     who was in her mother’s van parked on the street at the time of the shooting. Magana’s
     boyfriend, Damien Garza, who was also in the green van, was a member of the Latin Saints
     street gang. A group of people standing on the corner of 50th Street and Paulina were members
     of either the Satan Disciples or the Gangster Disciples, both rivals of the Latin Saints.
¶7       According to witnesses, the people standing on the corner were flashing gang signs and
     both the people on the corner and the occupants of the green van were shouting gang-related
     phrases and slogans. One of the eyewitnesses, Christina Garay, testified that she observed a
     group of “gangbangers” standing on the corner as she walked to her mother’s van. She knew
     they were “gangbangers” because she had seen them in her old neighborhood, and specifically
     recognized Ramirez, who was with the group, because she had known him since grammar
     school and used to live across the street from him.
¶8       Once Garay was inside her mother’s van, someone from the group on the corner ran into
     the street and threw a basketball at the green van. Garay then saw someone give Ramirez a gun,
     and Ramirez ran into the street and fired multiple shots at the van. Ramirez was also identified
     as the shooter by Paulina Sanchez, the student who had been talking to the principal at the time
     of the shooting and who knew Ramirez prior to the shooting. Finally, Garza, who looked out
     the back window of the van, identified Ramirez as the person who chased the van and shot at it.



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¶9          Garza testified that as the van drove past, the people standing on the corner were displaying
       the gang sign for the Satan Disciples.1 They also shouted insults disrespecting the Latin Saints
       and Garza responded by shouting insults directed at the Satan Disciples. The individual in the
       passenger seat of the van, who was not a gang member himself, also responded by making
       hand gestures that were intended to disrespect the Disciples.
¶ 10        Ramirez testified that he was not a member of the Gangster Disciples. He was not asked at
       trial whether he was a member of the Satan Disciples or any other street gang.
¶ 11        The jury found Ramirez guilty of four counts of attempted first degree murder while armed
       with a firearm. Ramirez’s motion for a new trial was denied. According to the presentence
       investigation report, Ramirez stated that he grew up in a neighborhood that had “a lot of
       gangs,” but he had never belonged to or been affiliated with any gang. He also denied that any
       of his family members were in gangs. Ramirez reported that he had friends who were in
       “neighborhood gangs, La Raza.”
¶ 12        At the sentencing hearing, the State argued in aggravation that Ramirez be sentenced to
       more than the minimum because he fired a gun multiple times outside of a school at dismissal
       time while students were in the area. The State also pointed out that if the court determined
       Magana suffered severe bodily injury, consecutive sentences would be required on the other
       attempted murder charges, but stated that “the State’s position is 31 to life” and asked the court
       to sentence Ramirez appropriately “based on the egregious nature of the facts.”
¶ 13        In mitigation, defense counsel acknowledged that the judge was bound by the 31-year
       minimum (a minimum of 6 years on attempted first degree murder plus the 25-year statutory
       firearm enhancement) but argued that Ramirez was 19 years old with no criminal background
       and could be a useful and productive citizen. Counsel asked the court to impose only the
       minimum sentence. Defense counsel noted “there’s no question in my mind shooting a gun at
       that time of day and all the facts in this case are aggravating,” but went on to argue that a
       minimum of 31 years was unconscionable even for a serious crime such as this because of
       Ramirez’s age and lack of criminal background.
¶ 14        Ramirez addressed the court and said he knew he was not guilty and that 31 years was too
       much time. Ramirez stated that he knew he could be useful, go back into the community and
       work and have a family.
¶ 15        After noting that he had reviewed the presentence investigation report, the trial judge
       stated:
                    “The most aggravating facts in the case are the facts. The defendant opens up with a
                gun on a van full of four other kids. And he’s lucky that none of them died. *** It’s also
                senseless. The defendant sits here and says he’s not guilty which I certainly do not
                believe. These witnesses who came *** knew him. His identity is not an issue. The
                evidence was overwhelming. So he continues not to take responsibility for his actions.
                *** If he hadn’t been involved in the gangs, he may very well have *** gotten a job,
                been a productive member of society.”

           On cross-examination, Garza was questioned about the Latin Saints’ rivalry with the Gangster
           1

       Disciples and he answered without any reference to the Satan Disciples. Although the two names were
       sometimes used interchangeably, the principal testified that the Gangster Disciples and the Satan
       Disciples were two separate gangs in the neighborhood. At times, the witnesses simply referred to the
       gang members on the street as “Disciples.”

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       The trial judge then explained that he did not believe a life sentence was warranted considering
       the fact that no one was killed. After considering all the factors, the trial judge found that the
       appropriate sentence was 15 years for attempted murder, plus the mandatory 25-year
       enhancement for the use of a firearm, for a total sentence of 40 years on each of the four counts.
       The judge further determined that the sentences for the four counts of attempted murder would
       be served concurrently.
¶ 16       At the conclusion of the sentencing hearing, defense counsel immediately presented his
       motion to reconsider the sentence, which he brought with him to the hearing. The written
       motion stated that the sentence was excessive in view of Ramirez’s background and the court
       improperly considered in aggravation “matters that are implicit in the offense.” Defense
       counsel requested that the court reduce the sentence from 40 years to the minimum of 31 years.
       In denying the motion to reconsider the sentence, the trial judge stated that the sentence was at
       the lower end of the statutory range and that he took into account the fact that nobody was
       killed, Ramirez’s young age and his rehabilitative potential. Ramirez timely filed this appeal.

¶ 17                                              ANALYSIS
¶ 18        The sole issue raised by Ramirez on appeal is whether the trial court erred in sentencing
       him to 15 years for attempted murder for a total of 40 years with the mandatory 25-year firearm
       enhancement. Ramirez contends that the trial court improperly considered the use of a firearm
       as a factor in aggravation when he had already received a mandatory enhanced sentence
       because a firearm was involved. Ramirez further claims that the trial court also considered his
       gang involvement as an aggravating factor when there was no evidence presented that he was a
       gang member.
¶ 19        The State contends and Ramirez acknowledges that the sentencing issue has been forfeited.
       It is well settled that an issue is preserved for appeal by objecting to the purported error at trial
       and including it in a written posttrial motion. People v. Denson, 2014 IL 116231, ¶ 11; People
       v. Enoch, 122 Ill. 2d 176, 186 (1988). A defendant wishing to raise errors that occurred at
       sentencing must follow the same procedure, namely, object at the sentencing hearing and
       include the issues in a written motion to reconsider sentence, or risk forfeiture on appeal.
       People v. Ballard, 206 Ill. 2d 151, 192 (2002) (citing People v. Mahaffey, 166 Ill. 2d 1, 27
       (1995)).
¶ 20        Here, Ramirez did not object to either purported error at the sentencing hearing and his
       motion to reconsider the sentence, which, as noted, was already prepared prior to the hearing,
       only raised the issue of improper consideration in aggravation of nonspecific “matters that are
       implicit in the offense.” Therefore, both grounds raised in Ramirez’s challenge to his sentence
       have been forfeited. Ramirez asks us to consider the error under the plain-error rule.
¶ 21        The plain-error doctrine is a narrow and limited exception to the rule of forfeiture. People
       v. Hillier, 237 Ill. 2d 539, 545 (2010). A defendant may only obtain relief under this doctrine
       by first showing that a clear or obvious error occurred. Id. In the sentencing context, a
       defendant must then show that the evidence at the sentencing hearing was closely balanced or
       that the error was so egregious as to deny the defendant a fair sentencing hearing. Id.
¶ 22        The defendant bears the burden of persuasion and the procedural default will be honored if
       the defendant fails to meet that burden. Id. A defendant who fails to request plain-error review
       obviously cannot meet that burden. Id. Similarly, plain-error review is forfeited when a


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       defendant fails to present an argument on how either prong of the plain-error doctrine is
       satisfied. Id. at 545-46.
¶ 23        Here, although Ramirez asks this court to review the claimed sentencing errors for plain
       error, he does not expressly argue, much less develop the argument that either prong of the
       doctrine is satisfied. Instead, Ramirez merely asserts at the end of his brief that consideration of
       an improper sentencing factor is plain error, citing People v. James, 255 Ill. App. 3d 516
       (1993). In James, this court noted that if a court relies on improper factors in aggravation when
       determining a defendant’s sentence, the second prong of the plain-error doctrine could be
       implicated and thus, plain-error review is appropriate. Id. at 531.
¶ 24        Under the Sprinkle doctrine, the forfeiture rule may also be relaxed in certain
       circumstances, such as “when a trial judge oversteps his or her authority in the presence of the
       jury or when counsel has been effectively prevented from objecting because it would have
       fallen on deaf ears.” (Internal quotation marks omitted.) People v. Thompson, 238 Ill. 2d 598,
       612 (2010) (quoting People v. Hanson, 238 Ill. 2d 74, 118 (2010)). But this doctrine will only
       be applied to excuse the failure to preserve an error in extraordinary circumstances. Id. The
       forfeiture rule should be applied uniformly except in compelling situations “because failure to
       raise a claim properly denies the trial court an opportunity to correct an error or grant a new
       trial, thus wasting time and judicial resources.” Id.
¶ 25        After careful consideration of the record and Ramirez’s arguments on appeal, we conclude
       that Ramirez has forfeited plain-error review of his sentence and the Sprinkle doctrine does not
       apply. Ramirez devotes the majority of the argument section of his brief to explaining why he
       believes the trial court improperly considered factors in aggravation. In a single paragraph at
       the end of the brief, almost as an afterthought, Ramirez acknowledges he did not preserve the
       sentencing issue for review but asks this court to review it for plain error “because
       consideration of an improper sentencing factor is plain error.” Ramirez then includes a citation
       to James, a case that merely stands for the proposition that consideration of an improper factor
       could implicate the second prong of the plain-error doctrine, but Ramirez does not explain why
       the alleged errors satisfy the second prong of plain error in this case.
¶ 26        Ramirez appears to be arguing that consideration of an improper factor always constitutes
       plain error under the second prong, with no citation to relevant authority. Our supreme court
       has noted that errors have satisfied the second prong only in a limited class of cases, e.g., cases
       involving complete denial of counsel, trial before a biased judge, racial discrimination in the
       selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a
       defective reasonable doubt instruction. Id. at 609. “Structural errors are systemic, serving to
       erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.”
       (Internal quotation marks omitted.) Id. at 608-09 (quoting People v. Glasper, 234 Ill. 2d 173,
       197-98 (2009)).
¶ 27        We do not agree that the sentencing errors identified by Ramirez automatically constitute
       plain error under the second prong and we do not decide here whether in an appropriate case
       with argument supported by legal authority consideration of an improper aggravating factor
       could warrant plain error review under the second prong. But to accept Ramirez’s argument (at
       least in its undeveloped form) would mean that whenever a defendant identifies any
       unpreserved sentencing error that he claims results in a longer sentence, the plain-error
       exception would swallow the rule of procedural default. We do no favors to the criminal bar to
       routinely bypass forfeiture to consider forfeited issues on their merits. Habitually excusing the

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       failure to preserve errors for review under the plain-error doctrine (i) minimizes the importance
       of trial counsel’s vigilance to identify and preserve objections in order to facilitate appellate
       review, (ii) undermines the ability of trial courts to address and, if necessary, correct claimed
       errors, and (iii) results in an ever-growing body of largely hypothetical legal analysis, i.e., if
       counsel had timely preserved the error now raised on appeal, then this is how we would resolve
       the issue. The more often we honor the rule of procedural default and the more frequently we
       confine plain-error review to its intentionally “narrow and limited” scope, the better and more
       cogent our analysis of concrete appellate issues will be.
¶ 28       Therefore, we decline to conduct a plain-error analysis. Ramirez has articulated no
       compelling reason to relax the forfeiture rule. No objection was made to the complained-of
       errors at the sentencing hearing, where the trial judge could have corrected the perceived
       errors. Ramirez advances no argument that calling his claimed sentencing errors to the trial
       judge’s attention would have fallen on deaf ears. Ramirez’s motion to reconsider sentence was
       prepared by defense counsel prior to the sentencing hearing and only referenced in generic
       language one of the errors he complains of on appeal. Coupled with Ramirez’s failure to
       develop an argument on appeal as to how the alleged errors constitute structural error in the
       context of this case, we find that Ramirez has forfeited plain-error review of his sentence.
¶ 29       We next address the State’s argument that the trial court erred in sentencing Ramirez to
       concurrent rather than consecutive sentences on the basis that Magana’s injury was sufficient
       to constitute “severe bodily injury” within the meaning of section 5-8-4(d)(1) of the Unified
       Code of Corrections (730 ILCS 5/5-8-4(d)(1) (West 2010)). Section 5-8-4 first sets forth the
       general rule that when a court imposes multiple sentences at the same time, “the sentences
       shall run concurrently unless otherwise determined by the Illinois court under this Section.”
       730 ILCS 5/5-8-4(a) (West 2010). One of the exceptions to the general rule, subsection (d),
       mandates consecutive sentences under a number of circumstances, including when “[o]ne of
       the offenses for which the defendant was convicted was *** a Class X or Class 1 felony and the
       defendant inflicted severe bodily injury.” 730 ILCS 5/5-8-4(d)(1) (West 2010). The State’s
       position on appeal is that because the jury convicted Ramirez of attempted murder involving
       “great bodily harm” to Magana (a Class X felony), the provisions of subsection (d)(1)
       providing for mandatory consecutive sentences for Class X felonies involving “severe bodily
       injury” were triggered. And as clarified at oral argument, it is the State’s position that in any
       case where a jury convicts a defendant of multiple offenses, one of which is a Class X or Class
       1 felony involving great bodily harm, the jury’s determination mandates the imposition of
       consecutive sentences, thus depriving the trial court of any discretion. We disagree.
¶ 30       Characterizing the trial court’s failure to impose consecutive sentences as a “void”
       sentence, the States cites People v. Arna, 168 Ill. 2d 107, 113 (1995), for the proposition that
       this court has the authority to correct a void sentence at any time, notwithstanding rules which
       limit the State’s right to appeal and prohibit this court from increasing a defendant’s sentence
       on review. The State’s contention that Ramirez’s concurrent sentences are void rests on the
       supposition that the difference between “great bodily harm” and “severe bodily injury” is
       “merely semantic” and that there is “no meaningful distinction” between the two phrases. See
       People v. Witherspoon, 379 Ill. App. 3d 298, 308 (2008). And while that is arguably true from
       a purely grammatical perspective, the role that each of these phrases plays in a criminal
       proceeding makes clear that they are, and were intended to be, entirely distinct concepts.



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¶ 31       The State’s argument is premised on a fundamental mischaracterization of the fact finder’s
       function in determining that an offense involves “great bodily harm” for purposes of a
       sentencing enhancement as opposed to a sentencing judge’s role in determining whether the
       qualifying felony entails “severe bodily injury” so that departure from the legislature’s general
       mandate of concurrent sentences is warranted. Both of these determinations are entitled to
       deference on review (see People v. Lopez-Bonilla, 2011 IL App (2d) 100688, ¶ 14 (“as long as
       the evidence was sufficient to support a finding of great bodily harm, the trial court’s
       determination will be affirmed”); People v. Deleon, 227 Ill. 2d 322, 332 (2008) (“trial court’s
       determination that a bodily injury is ‘severe’ for purposes of consecutive sentencing may be
       reversed only if it is against the manifest weight of the evidence”)), and they involve distinct
       considerations. As we noted in People v. Williams, 335 Ill. App. 3d 596, 599-600 (2002):
                “[T]he legislature chose the phrase ‘great bodily harm’ when it enacted the aggravated
                battery statute [citation], while it used ‘severe bodily injury’ in section 5-8-4(a). Where
                the legislature uses certain words in one instance and different words in another,
                different results were intended. [Citation.] Because ‘great bodily harm’ defines an
                offense, while ‘severe bodily injury’ mandates consecutive sentencing, we conclude
                ‘severe bodily injury’ requires a degree of harm to the victim that is something more
                than that required to create the aggravated battery offense.”
¶ 32       Similarly, had the legislature intended that a determination that an attempted murder that
       inflicted great bodily harm on the victim would, without more, mandate the imposition of
       consecutive sentences, it could easily have so provided. Given the clear expression of
       legislative intent that concurrent rather than consecutive sentences are the norm, to sweep all
       cases involving great bodily harm into the severe bodily injury category would greatly increase
       the number of defendants subject to mandatory consecutive sentences, a result we cannot
       harmonize with the general policy favoring concurrent sentences.
¶ 33       Witherspoon is not inconsistent with this conclusion. The court in Witherspoon affirmed
       the trial court’s finding that the injuries sustained by the victim entailed “severe bodily injury”
       and that consecutive sentences were therefore warranted. The court did not conclude that
       because “great bodily harm” and “severe bodily injury” were grammatically similar, a finding
       that an offense inflicted great bodily harm necessarily called for a finding that it likewise
       entailed severe bodily injury. Rather, the Witherspoon court found that the trial court did not
       abuse its discretion when it deferred to the jury’s finding of great bodily harm as a basis for
       concluding that the victim sustained severe bodily injury. Witherspoon, 379 Ill. App. 3d at 308.
       Recognizing the deference afforded the trial court’s decision regarding the imposition of
       consecutive sentences, Witherspoon further observed that cataloging cases in an attempt to
       classify which injuries are severe enough to warrant consecutive sentences was not particularly
       helpful: “[j]ust because the appellate court found no abuse of discretion in the finding that a
       particular injury was not severe, it does not follow that the opposite finding would have been
       an abuse of discretion either. Both findings could have been rationally defensible.” Id. at 310.
       Witherspoon is entirely consistent with the conclusion we reach here that notwithstanding a
       factual finding that a qualifying offense inflicts great bodily harm, the trial court retains the
       discretion to determine separately whether defendant inflicted severe bodily injury for the
       purpose of imposing consecutive sentences.
¶ 34       The record reflects that the State raised this issue at sentencing and thus the trial court was
       aware of the State’s position that Magana’s injury constituted “severe bodily injury”

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       warranting consecutive sentences. The trial court’s decision to impose concurrent sentences
       reflects its determination that although Magana sustained “great bodily harm” in that she
       suffered a piercing bullet wound to her arm, the nature of her injury was not so severe as to
       warrant consecutive 40-year sentences for each of the attempted murders of which Ramirez
       was convicted, particularly since none of the other victims was injured. See Williams, 335 Ill.
       App. 3d at 599 (“Not all gunshot wounds are severe just because they are gunshot wounds.”).
       The evidence at trial showed that although the bullet could not be removed, Magana was
       treated at the hospital following the shooting and released that same day. This supports the trial
       court’s apparent conclusion that although the injury was sufficient to constitute great bodily
       harm for purposes of the firearm enhancement, it was insufficient to constitute severe bodily
       injury for the purpose of imposing consecutive sentences. We therefore reject the State’s
       argument that consecutive sentences were mandatory.
¶ 35        Ramirez also contends and the State concedes that he is entitled to 31 additional days of
       presentence credit for a total of 458 days rather than 427. Pursuant to Illinois Supreme Court
       Rule 615(b)(1), and our authority to correct a mittimus without remand (People v. Magee, 374
       Ill. App. 3d 1024, 1035-36 (2007)), we direct the clerk of the circuit court to correct the
       mittimus to reflect 458 days of presentence credit.

¶ 36                                           CONCLUSION
¶ 37       For the foregoing reasons, the judgment of the circuit court is affirmed. The clerk of the
       circuit court is directed to correct the mittimus to reflect 458 days of presentence credit.

¶ 38      Affirmed; mittimus corrected.




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