                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Brunner, 2012 IL App (4th) 100708




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     DAVID D. BRUNNER, Defendant-Appellant.



District & No.              Fourth District
                            Docket No. 4-10-0708


Filed                       April 3, 2012
Rehearing denied            May 16, 2012


Held                        Defendant’s sentence to 55 years’ imprisonment for first degree murder
(Note: This syllabus        was upheld over his arguments that the evidence did not show that he
constitutes no part of      personally killed the victim and that he was abused and unwanted as a
the opinion of the court    child and had mental illnesses, since the jury could have concluded
but has been prepared       beyond a reasonable doubt that defendant personally killed the victim in
by the Reporter of          the course of robbing her and taking her van, defendant’s claim that he
Decisions for the           was convicted of first degree murder under a theory of accountability was
convenience of the          unpersuasive, and defendant’s mental or psychological impairment was
reader.)
                            not inherently mitigating.


Decision Under              Appeal from the Circuit Court of Sangamon County, No. 06-CF-518; the
Review                      Hon. Peter C. Cavanagh, Judge, presiding.



Judgment                    Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Martin J. Ryan, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, Robert
                           J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE STEIGMANN delivered the judgment of the court, with
                           opinion.
                           Justices Pope and Cook concurred in the judgment and opinion.




                                             OPINION

¶1          In May 2010, a jury convicted defendant, David D. Brunner, of four counts of first degree
        murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2006)), robbery (720 ILCS 5/18-1(a)
        (West 2006)), and possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2006)).
¶2          Following an August 2010 hearing, the trial court merged defendant’s first degree murder
        convictions and sentenced him to the following concurrent prison sentences: 55 years for first
        degree murder, 6 years for robbery, and 6 years for possession of a stolen vehicle.
¶3          Defendant appeals, arguing only that the trial court’s imposition of a 55-year prison
        sentence was excessive. Specifically, defendant contends that the court abused its discretion
        by imposing that sentence because (1) the evidence did not show that defendant personally
        killed the victim and (2) defendant “was abused and unwanted as a child and has had
        substantial and long-standing mental illnesses.” We disagree and affirm.

¶4                                       I. BACKGROUND
¶5                                      A. The State’s Charges
¶6          Shortly after the police discovered Judy Schermerhorn’s strangled body in her home in
        April 2006, the State charged defendant as follows: (1) first degree murder in that defendant
        intended to kill Schermerhorn (720 ILCS 5/9-1(a)(1) (West 2006)) (count I); (2) first degree
        murder in that defendant knew that his acts would cause her death (720 ILCS 5/9-1(a)(1)
        (West 2006)) (count II); (3) first degree murder in that defendant knew that his acts created
        a strong probability of her death (720 ILCS 5/9-1(a)(2) (West 2006)) (count III); (4) first
        degree murder in that while committing a forcible felony (robbery), defendant caused her
        death (720 ILCS 5/9-1(a)(3) (West 2006)) (count IV); (5) robbery (720 ILCS 5/18-1(a) (West
        2006)) (count V); and (6) possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West
        2006)) (count VI).

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¶7                                   B. Defendant’s Trial
¶8        Because defendant is not challenging the sufficiency of the evidence to sustain his
       convictions following his May 2010 jury trial, the facts relevant to this appeal are as follows.

¶9                              1. The Evidence Presented by the State
¶ 10       Megan Wanless testified that she was introduced to defendant in the early morning hours
       of April 29, 2006, by defendant’s cousin, Terry Fairclough. Because defendant had crack
       cocaine and cannabis, Wanless decided to “hang out” and “party” with him. Several hours
       after driving to a lake to consume drugs, defendant drove to a local pawnshop where he sold
       silver flatware that he retrieved from the car’s trunk. Thereafter, defendant drove to a home.
       While in the driveway of that home, defendant told Wanless that two days earlier, he had an
       argument with the owner of the home that ended when he strangled her to death. (Wanless
       later identified an exhibit that depicted Schermerhorn’s home as the home she visited.)
¶ 11       Wanless entered the home with defendant, explaining that she did not believe defendant’s
       story. Once inside, defendant searched for money and jewelry. Wanless followed defendant
       into a bedroom and noticed a lump on the bed that she believed was a pile of blankets.
       Defendant eventually found $30 in a checkbook. Defendant then drove Wanless to a motel
       where he rented a room, and they consumed drugs. The next morning, defendant returned to
       the home. As she sat in the car, Wanless later observed defendant leave the home, carrying
       jewelry and “egg-shaped” ornaments. After selling jewelry to a pawnshop, defendant drove
       Wanless to her friend’s home. After a short time there, defendant became upset because
       Wanless would not show him the drugs she had received. As defendant left the home without
       Wanless, he backed the rear end of the car into a pole, shifted the car into drive, and hit a
       stop sign and a fence.
¶ 12       Police responded to a dispatch regarding defendant’s accident, and upon arriving,
       observed defendant–who appeared unconscious–in the driver’s seat. A preliminary
       investigation revealed that the car defendant had been driving was registered to
       Schermerhorn but displayed stolen license plates. As police continued their investigation,
       defendant exited the car and fled, but police quickly apprehended him. Paramedics later
       transported defendant to a hospital.
¶ 13       Wanless gave the police defendant’s driver’s license, explaining that she had it because
       defendant kept losing it during the two days she was with him. Wanless then asked if she
       could retrieve her possessions from the car. When an officer opened the car’s trunk to
       retrieve Megan’s poncho, he found two bags of jewelry, flatware, figurines, and
       Schermerhorn’s driver’s license. Concerned that Schermerhorn may have been burglarized,
       officers drove to the address on Schermerhorn’s license. After their knocks at the front door
       went unanswered, officers entered the home through an unlocked window and found
       Schermerhorn’s decomposing body on a bedroom mattress wrapped tightly in blankets. After
       an officer removed a portion of the blankets, he testified that Schermerhorn’s head was
       wrapped in a plastic bag as if she was wearing a shower cap and that she had been gagged.
¶ 14       A forensic pathologist testified that (1) Schermerhorn’s hands and feet were separately

                                                 -3-
       bound by cloth material; (2) an electrical cord and cloth material were wrapped around her
       neck; (3) she was gagged by a piece of cloth that wrapped around her face, ending in a knot
       located at the back of her head; and (4) her entire body was wrapped in layers of blankets and
       bedding secured by electrical cords and a sash. The pathologist opined that Schermerhorn’s
       death was caused by “ligature strangulation,” with the possibility that the plastic bag placed
       over her head had contributed to her death by depriving her of oxygen.
¶ 15       The State elicited testimony from several witnesses that corroborated Wanless’s
       testimony and showed that on April 28, 2006, defendant sold Fairclough a computer in
       exchange for drugs. The State’s evidence also revealed that the computer defendant sold
       belonged to Schermerhorn, and a deoxyribonucleic acid (DNA) analysis could not exclude
       defendant as the contributor of DNA recovered from a sash used to secure a blanket to
       Schermerhorn’s torso.
¶ 16       Thereafter, the trial court admitted three digital recordings of interviews police conducted
       with defendant. In those interviews, defendant provided the police with differing
       explanations regarding Schermerhorn’s death, and he did so in the following order: (1)
       Schermerhorn had received threats from a man she hired who eventually stole her
       prescription pills; (2) during late April 2006, defendant often stopped by Schermerhorn’s
       home and each time that she was not there, he would steal her belongings–including a
       computer–to support his drug habit; (3) defendant and his friend, “Lorenzo,” devised a plan
       to rob Schermerhorn to cover his drug debts, which resulted in her unintentional death; and
       (4) defendant strangled Schermerhorn and tied her up because she threatened to use her
       organized-crime connections to harm his former girlfriend. (The digital recordings were
       played for the jury.)

¶ 17                         2. The Evidence Presented by Defendant
¶ 18        Defendant testified that he met Schermerhorn in February 2006 through his former
       girlfriend, who cleaned Schermerhorn’s home. Schermerhorn worked from home, selling
       cosmetic products, and planned to sell jewelry over the Internet. Over the next two months,
       defendant became friends with Schermerhorn, assisting her by performing landscaping and
       home maintenance jobs. On April 27, 2006, Schermerhorn told defendant that a large amount
       of her jewelry was missing. Defendant admitted to her that he took the jewelry. To make
       amends, defendant stated that he entered into an agreement with Schermerhorn to defraud
       her homeowner’s insurance provider by claiming that she had been robbed. Before defendant
       left Schermerhorn’s home to return a van he borrowed from his cousin, Joey Brunner, she
       insisted that he return that night so that they could finalize their plans.
¶ 19        After smoking crack cocaine with Joey, defendant and Joey returned to Schermerhorn’s
       home where they finalized a plan to tie Schermerhorn up, ransack her home, and
       anonymously report the burglary to the police. Defendant would then sell the stolen items out
       of state and provide Schermerhorn a portion of the proceeds to financially support her until
       her insurance check arrived. Defendant stated that after Schermerhorn agreed with the plan,
       he started rummaging through her home while Joey tied her up. A short time later, defendant
       informed Schermerhorn that they were leaving and she responded with a “muffled” sound.


                                                 -4-
¶ 20       Defendant recounted that as he drove away, Joey “flipped out” unexpectedly, and begged
       him to forget about reporting the robbery because Joey thought he may have killed
       Schermerhorn when he tied her up. Instead of calling 9-1-1, defendant drove Joey back to his
       home, returned to check on Schermerhorn, and confirmed that she was dead. Defendant then
       wrapped Schermerhorn’s body in blankets to prevent her dog from “feeding” on her body.
¶ 21       Defendant explained that initially, he did not want to implicate Joey because he was
       “family” but after “sobering up” and “realizing exactly what just happened,” he decided that
       “it’s not fair to [Schermerhorn], to have who really killed her runnin[g] around.” Defendant
       also (1) claimed that his videotaped explanations were lies and (2) acknowledged that he
       continued stealing from Schermerhorn’s home after her death.

¶ 22               3. The Trial Court’s Instruction to the Jury on Accountability
¶ 23       In addition to the jury instructions the trial court provided regarding the propositions the
       State was mandated to prove beyond a reasonable doubt to sustain guilty verdicts on the
       counts charged, the court also instructed the jury on Illinois Pattern Jury Instructions,
       Criminal, No. 5.03A (4th ed. 2000), entitled, “Accountability–Felony Murder.” Specifically,
       the court informed the jury as follows:
               “To sustain the charge of first degree murder, it is not necessary for the State to show
           that it was or may have been the original intent of the defendant or one for whose
           conduct he is legally responsible to kill the deceased, *** Schermerhorn.
               It is sufficient if the jury believes from the evidence beyond a reasonable doubt that
           the defendant or one for whose conduct he is legally responsible, combined to do an
           unlawful act, such as to commit Robbery, and that the deceased was killed by one of the
           parties committing that unlawful act.”

¶ 24                                  4. The Jury’s Verdict
¶ 25      On this evidence, the jury returned guilty verdicts on all six counts.

¶ 26                             C. Defendant’s Sentencing Hearing
¶ 27                           1. The Evidence Presented by the State
¶ 28       At defendant’s August 2010 sentencing hearing, a retired police officer testified that in
       January 1992, defendant stabbed Kenneth Logan–a person he had known for about a
       year–twice in the stomach. In March 1992, defendant pleaded guilty to aggravated battery
       and was later sentenced to 30 months’ probation.
¶ 29       Detective Ryan Simms, the officer who investigated Schermerhorn’s death, testified that
       in August 2006, defendant’s cousin, Nicole Meredith, provided him a letter that defendant
       wrote to her. In his letter, defendant asked Meredith to contact his lawyer to confirm a story
       he heard while in jail that Joey bragged to Meredith how Joey had murdered Schermerhorn.
       The letter provided a detailed account of the story Joey purportedly told Meredith regarding
       Schermerhorn’s death. (Defendant’s written account of Joey’s admission mirrored his May
       2010 trial testimony.) Defendant also requested that Meredith not discuss his letter with

                                                 -5-
       anyone but his lawyer and to destroy the letter after she finished reading it. Simms also
       described the content of a second letter defendant wrote to Meredith in July 2010, in which
       defendant expressed his rage upon learning that Meredith provided Simms the August 2006
       letter. (Simms had earlier read defendant’s August 2006 and July 2010 letters to the jury, and
       the trial court later admitted those letters into evidence.)
¶ 30        Defendant’s August 2010 presentence investigation report (PSI) listed the following
       felony convictions, which were in addition to defendant’s 1992 conviction for aggravated
       battery: (1) in March 2000, four years in prison for three separate felony theft convictions;
       (2) in July 2002, three years in prison for felony theft; and (3) in May 2004, 4 1/2 years in
       prison for theft by deception.
¶ 31        Defendant’s PSI also provided the following synopsis of his “mental or emotional”
       condition:
            “The defendant has had a psychiatric history with conduct disorders, problems as an
            adolescent[,] and a continuous issue with depression. His history of depression has
            caused sleep disturbances and past suicidal thoughts. He was first admitted to a
            psychiatric hospital at approximately age 12 or 13 *** for behavioral problems. At
            approximately 16 or 17, the defendant was again hospitalized *** for overdosing on
            [a]spirin due to being very depressed. On February 1, 1998, the defendant *** received
            a diagnosis for a Major Depressive disorder with substance abuse problems. To date, the
            defendant reported that he currently takes Wellbutrin for his depression and has received
            approximately 3 months of counseling for depression while in custody.”

¶ 32                          2. The Evidence Presented by Defendant
¶ 33       The trial court admitted a forensic psychiatric evaluation conducted by Terry M. Killian,
       clinical assistant professor of psychiatry at Southern Illinois University School of Medicine.
       Killian’s “principal diagnosis” was that defendant suffered from chronic and severe cocaine
       dependency. In his written evaluation, Killian recommended to the court that defendant’s
       “life has been significantly disrupted by many things[,] which should be kept in mind in
       disposition [sic] of this case.” Killian suggested that the court take into account the following
       “mitigation issues”: (1) the abuse and neglect defendant suffered during his childhood, (2)
       defendant’s undiagnosed attention deficit hyperactivity disorder, (3) defendant’s lifetime
       history of depression, (4) defendant’s mild post-traumatic stress disorder, (5) defendant’s
       severe and chronic cocaine dependence, and (6) defendant’s severe impairment at the time
       of the crime.

¶ 34                      3. The Sentenced Imposed by the Trial Court
¶ 35       At the sentencing hearing, the trial court stated that it had considered (1) the evidence
       presented at defendant’s May 2010 trial, (2) the PSI, (3) the victim-impact statements, (4)
       the evidence and exhibits presented at the sentencing hearing, and (5) the parties’ arguments.
       In addition, the court noted that it had carefully considered Killian’s psychiatric report
       regarding defendant’s childhood, abuse, and depression. The court then stated the following:


                                                 -6-
              “[The court] note[s] that it was argued that the Defendant was very clearly given a
          chance, but it is clear from the Defendant’s statement that *** Schermerhorn gave the
          Defendant *** more than one chance, and in fact, *** the jury found that it was clear that
          *** you were driven by an addiction, in that in your time of need, time of desperation,
          you went straight over to [Schermerhorn’s] house to seek out help, and she was the one
          person, the one friend *** you thought might still be there for you, who might potentially
          help you. What’s clear is that when you did go to *** Schermerhorn’s house, the door
          was always open, you’ll recall saying. [Despite] her response ***, you did turn on her,
          and you took her life. The jury had found that, and you then proceeded to systematically
          loot her home and drive around in her car over the next couple of days as if these were
          your items and your car, and that absolutely nothing was wrong, as *** Schermerhorn
          lay dead in her own bed. So that’s what was proved at trial, and [Schermerhorn] was the
          one person who admittedly gave you a chance.”
       Thereafter, the court imposed the following concurrent prison sentences: 55 years for first
       degree murder (count I), 6 years for robbery, and 6 years for possession of a stolen vehicle.
       (The court did not sentence defendant on count II, III, or IV, finding that those counts had
       merged into his conviction on count I.)
¶ 36      This appeal followed.

¶ 37                          II. THE TRIAL COURT’S SENTENCE
¶ 38       Defendant appeals, arguing only that the trial court’s imposition of a 55-year prison
       sentence was excessive. Specifically, defendant contends that the court abused its discretion
       by imposing that sentence because (1) the evidence did not show that defendant personally
       killed Schermerhorn and (2) defendant “was abused and unwanted as a child and has had
       substantial and long-standing mental illnesses.” Defendant maintains that the court did not
       sufficiently consider these contentions and that they constitute mitigating factors against the
       imposition of such a harsh sentence. We address defendant’s contentions in turn.

¶ 39                                 A. The Standard of Review
¶ 40       The sentence imposed by a trial court is granted great deference because the court is
       generally in a better position than a reviewing court to weigh factors such as the defendant’s
       credibility, demeanor, general moral character, mentality, social environment, and habits.
       People v. Calabrese, 398 Ill. App. 3d 98, 126, 924 N.E.2d 6, 29 (2010). This deference
       provides a trial court the latitude to impose a sentence that falls within the statutory range
       prescribed for the offense. People v. Perkins, 408 Ill. App. 3d 752, 763, 945 N.E.2d 1228,
       1238 (2011). A sentence that is within statutory limits is excessive and, thus, an abuse of the
       court’s discretion only when it is greatly at variance with the spirit and purpose of the law,
       or manifestly disproportionate to the nature of the offense. See People v. Luna, 409 Ill. App.
       3d 45, 52, 946 N.E.2d 1102, 1110 (2011).




                                                 -7-
¶ 41                     B. The Statutory Aggravating and Mitigating Factors
¶ 42                              1. The Statutory Mitigating Factors
¶ 43       Section 5-5-3.1 of the Unified Code of Corrections (Unified Code), entitled, “Factors in
       Mitigation,” provides the following sentencing guidance:
                “(a) The following grounds shall be accorded weight in favor of withholding or
           minimizing a sentence of imprisonment:
                    (1) The defendant’s criminal conduct neither caused nor threatened serious
                physical harm to another.
                    (2) The defendant did not contemplate that his criminal conduct would cause or
                threaten serious physical harm to another.
                    (3) The defendant acted under a strong provocation.
                    (4) There were substantial grounds tending to excuse or justify the defendant’s
                criminal conduct, though failing to establish a defense.
                    (5) The defendant’s criminal conduct was induced or facilitated by someone other
                than the defendant.
                    (6) The defendant has compensated or will compensate the victim of his criminal
                conduct for the damage or injury that he sustained.
                    (7) The defendant has no history of prior delinquency or criminal activity or has
                led a law-abiding life for a substantial period of time before the commission of the
                present crime.
                    (8) The defendant’s criminal conduct was the result of circumstances unlikely to
                recur.
                    (9) The character and attitudes of the defendant indicate that he is unlikely to
                commit another crime.
                    (10) The defendant is particularly likely to comply with the terms of a period of
                probation.
                    (11) The imprisonment of the defendant would entail excessive hardship to his
                dependents.
                    (12) The imprisonment of the defendant would endanger his or her medical
                condition.
                    (13) The defendant was mentally retarded as defined in Section 5-1-13 of [the
                Unified] Code.
                (b) If the court, having due regard for the character of the offender, the nature and
           circumstances of the offense and the public interest finds that a sentence of imprisonment
           is the most appropriate disposition of the offender, or where other provisions of this Code
           mandate the imprisonment of the offender, the grounds listed in paragraph (a) of this
           subsection shall be considered as factors in mitigation of the term imposed.” 730 ILCS
           5/5-5-3.1 (West 2006).
       Thus, section 5-5-3.1 of the Unified Code requires a trial court to consider the 13
       aforementioned mitigating factors listed, if present, in mitigation.

                                                -8-
¶ 44                           2. The Statutory Aggravating Factors
¶ 45       Section 5-5-3.2(a) of the Unified Code, entitled “Factors in Aggravation,” sets forth 22
       factors that a trial court is required to consider, if present, in aggravation. In particular,
       section 5-5-3.2(a) provides, in part, the following:
               “(a) The following factors shall be accorded weight in favor of imposing a term of
           imprisonment or may be considered by the court as reasons to impose a more severe
           sentence under Section 5-8-1:
                   (1) the defendant’s conduct caused or threatened serious harm;
                   (2) the defendant received compensation for committing the offense;
                   (3) the defendant has a history of prior delinquency or criminal activity;
                   (4) the defendant, by the duties of his office or by his position, was obliged to
               prevent the particular offense committed or to bring the offenders committing it to
               justice;
                   (5) the defendant held public office at the time of the offense, and the offense
               related to the conduct of that office;
                   (6) the defendant utilized his professional reputation or position in the community
               to commit the offense, or to afford him an easier means of committing it;
                   (7) the sentence is necessary to deter others from committing the same crime;
                                                 ***
                   (12) the defendant was convicted of a felony committed while he was released
               on bail *** pending trial for a prior felony and was convicted of such prior felony,
               or the defendant was convicted of a felony committed while he was serving a period
               of *** mandatory supervised release ***;
                   (13) the defendant committed or attempted to commit a felony while he was
               wearing a bulletproof vest.” 730 ILCS 5/5-5-3.2(a) (West 2006).
       The majority of the remaining 13 statutory aggravating factors listed under section 5-5-3.2(a)
       of the Unified Code pertain either to the (1) age, medical condition, race, gender, or
       employment status of the victim; (2) the defendant’s personal or professional relationship to
       the victim; or (3) where the crime was committed, which includes, in part, churches, nursing
       homes, or day-care facilities. 730 ILCS 5/5-5-3.2(a) (West 2006).

¶ 46                        C. Defendant’s Excessive-Sentence Claims
¶ 47                  1. Defendant’s Claim That the Evidence Did Not Show
                               That He Personally Killed the Victim
¶ 48       As previously stated, defendant contends that the trial court abused its discretion by
       imposing a 55-year sentence because the evidence did not show that defendant personally
       killed the victim. Specifically, defendant asserts that the absence of direct evidence that he
       planned to kill Schermerhorn or personally kill her was a mitigating factor that the court did
       not sufficiently consider and militated against the imposition of such a harsh sentence. We

                                                -9-
       reject defendant’s contention.
¶ 49       Although the plain language of sections 5-5-3.1 and 5-5-3.2(a) of the Unified Code
       mandates that, if present, the trial court must consider the enumerated 13 mitigating and 22
       aggravating factors, respectively, in determining a sentence of imprisonment, those factors
       are not an exclusive listing that prohibits a court from considering any other relevant
       sentencing factor.
¶ 50       In People v. Ward, 113 Ill. 2d 516, 525, 499 N.E.2d 422, 425 (1986), the supreme court
       rejected the defendant’s argument that the trial court erred by considering his claims of
       innocence as an aggravating factor. In so doing, it provided the following guidance:
               “The imposition of a criminal sentence should not be reduced to a litany of accepted
           and approved but meaningless words and phrases. In determining the appropriate
           sentence, the trial judge must consider all matters reflecting upon the defendant’s
           personality, propensities, purposes, tendencies, and indeed every aspect of his life
           relevant to the sentencing proceeding. [Citations.] In some instances and under certain
           factual circumstances, a continued protestation of innocence and a lack of remorse may
           convey a strong message to the trial judge that the defendant is an unmitigated liar and
           at continued war with society. Such impressions garnered by the trial judge from the
           entire proceeding are proper factors to consider in imposing sentence. This court has held
           that it was not improper for the trial court to consider its perception of the defendant’s
           perjury in fixing the penalty to be imposed. [Citation.] We believe that the impact of the
           defendant’s testimony and statement upon the trial judge, assessed in light of the other
           information revealed during the course of the trial and the sentencing hearing, can hardly
           be said to be irrelevant to an appraisal of the defendant’s character and his prospects for
           rehabilitation.” (Emphasis added.) Ward, 113 Ill. 2d at 527-28, 499 N.E.2d at 426.
       See People v. Dowding, 388 Ill. App. 3d 936, 943, 904 N.E.2d 1022, 1029 (2009) (in
       determining the appropriate sentence to impose, a trial court may consider as an aggravating
       factor the degree of harm to the victim, the manner in which the victim’s death was brought
       about, as well as the seriousness, nature, and circumstances of the offense); Perkins, 408 Ill.
       App. 3d at 763, 945 N.E.2d at 1238 (citing Ward approvingly for the proposition that a trial
       court should not arbitrarily consider a claim of innocence as an aggravating sentencing factor
       but under other circumstances, a defendant’s lack of remorse or denial of guilt may be
       properly considered by the court with regard to the defendant’s prospects for rehabilitation).
¶ 51       Defendant concedes that he is accountable for Schermerhorn’s murder, but claims that
       “who actually killed [Schermerhorn] has relevance to the sentence imposed.” Defendant
       posits further, as follows:
               “The harsh 55-year prison sentence imposed *** would have been appropriate had
           [defendant] personally killed (or planned to kill) *** [Schermerhorn]. However, there
           is no suggestion in the record that [defendant] personally killed her, despite the court’s
           erroneous finding at sentencing that [defendant] took [Schermerhorn’s] life.”
¶ 52       Defendant’s analysis regarding the sentence the trial court imposed is consistent with
       Ward. We agree that the court could have considered–as an aggravating sentencing
       factor–that defendant, a lifetime drug abuser, had callously murdered Schermerhorn, stolen

                                                -10-
       her possessions to support his drug habit, and then continually lied about the circumstances
       surrounding her death. Indeed, the legislature had addressed this issue, albeit in the context
       of the death penalty statute under section 9-1(b)(6)(a)(i) of the Criminal Code of 1961
       (Criminal Code), which stated that a defendant who had been found guilty of first degree
       murder may be sentenced to death if the murdered individual was killed in the course of
       another felony if the murdered individual “was actually killed by the defendant.” 720 ILCS
       5/9-1(b)(6)(a)(i) (West 2006). We note that the list of death-penalty-eligibility factors was
       listed in section 9-1(b) of the Criminal Code under the heading “Aggravating Factors.” 720
       ILCS 5/9-1(b) (West 2006).
¶ 53        First, we find unpersuasive defendant’s underlying claim that the jury found him guilty
       of Schermerhorn’s death solely under the theory of accountability. On this record, the jury
       could easily have drawn the inferences necessary to conclude beyond a reasonable doubt that
       defendant personally killed Schermerhorn. See People v. Washington, 2012 IL 110283, ¶ 60
       (the jury’s function is to assess witness credibility, weigh the evidence, resolve conflicting
       evidence, and draw reasonable inferences therefrom).
¶ 54        More significantly, the fatal flaw in defendant’s argument that the trial court erred by
       imposing a 55-year sentence is his proposed treatment of the absence of an aggravating
       factor. Even if we were to accept defendant’s claim that the jury convicted him of first degree
       murder under an accountability theory, which we have already concluded we do not, we
       reject defendant’s suggestion that the absence of evidence that he personally killed
       Schermerhorn–in other words, the absence of a possible aggravating factor–must be
       considered by the court as a mitigating factor, resulting in the downward departure from the
       sentence the court would have otherwise imposed.

¶ 55                2. Defendant’s Claim That His Sentence Was Excessive
                                  Given His Personal History
¶ 56       Defendant also contends that the trial court abused its discretion by imposing a 55-year
       sentence because he “was abused and unwanted as a child and has had substantial and long-
       standing mental illnesses.” We disagree, noting that the supreme court has previously
       considered and rejected such arguments.

¶ 57                 a. The Supreme Court’s Decisions in Shatner and Coleman
¶ 58       In People v. Shatner, 174 Ill. 2d 133, 137, 673 N.E.2d 258, 260 (1996), a jury convicted
       the defendant of first degree murder, robbery, and arson. After the defendant waived his right
       to a jury at his sentencing hearing, the trial court found (1) the defendant was eligible for the
       death penalty based on the aggravating factor that he killed the victim in the course of
       committing another felony and (2) that no mitigating factors were present to prevent the
       imposition of that ultimate penalty. Shatner, 174 Ill. 2d at 138, 673 N.E.2d at 260. Thereafter
       the court sentenced the defendant to death. Shatner, 174 Ill. 2d at 138, 673 N.E.2d at 260.
       The defendant appealed, arguing, in pertinent part, that the court erred by considering his
       history of drug abuse solely in aggravation. Id.


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¶ 59       In rejecting the defendant’s claim, the supreme court stated the following:
           “Defendant does not claim that the sentencing judge refused to hear or believed he was
           somehow precluded from viewing the drug abuse history evidence as mitigating. Rather,
           defendant essentially asserts that the sentencer should have found that defendant’s drug
           abuse history in part explained his criminal behavior. Underlying this premise is that
           since drugs are partly to blame for his actions, the defendant is somehow less culpable
           and should not suffer the ultimate penalty for his criminal behavior. Simply stated, the
           sentencing judge was under no legal obligation to subscribe to this suggestion. To the
           contrary, the sentencing judge was free to conclude, under the circumstances, that
           defendant’s drug history simply had no mitigating value but was, in fact, aggravating.”
           Shatner, 174 Ill. 2d at 160, 673 N.E.2d at 270.
¶ 60       In People v. Coleman, 183 Ill. 2d 366, 401, 701 N.E.2d 1063, 1081 (1998), another
       death-penalty case, the defendant claimed ineffective assistance of counsel during his
       sentencing hearing because defense counsel failed to investigate potential sources of
       mitigation. In support of his postconviction petition, the defendant attached several affidavits
       from family members, each essentially claiming that the defendant was “the product of an
       impoverished, chaotic household in which he was subjected to chronic abuse and neglect”
       that eventually caused the defendant to develop a long-term dependence on drugs. Id. The
       defendant also attached a psychological evaluation and social history investigation report that
       detailed the impairment of his emotional development as a result of his long-term drug use.
       Coleman, 183 Ill. 2d at 401-02, 701 N.E.2d at 1081.
¶ 61       In rejecting the defendant’s ineffective-assistance-of-counsel claim, the supreme court
       stated that it, as well as other courts, had noted that a history of substance abuse is a “double-
       edged sword at the aggravating/mitigating phase of the penalty hearing.” Coleman, 183 Ill.
       2d at 404, 701 N.E.2d at 1082. In this regard, the supreme court continued, as follows:
               “With respect to the proffered evidence of the impairment of defendant’s emotional
           development, this court has repeatedly held that ‘information about a defendant’s mental
           or psychological impairment is not inherently mitigating.’ [Citation.] As we explained
           in [People v. Tenner, 175 Ill. 2d 372, 382, 677 N.E.2d 859, 864-65 (1997)], ‘[a]t
           sentencing, a judge or jury considering evidence of this nature might view the
           information as either mitigating or aggravating, depending, of course, on whether the
           individual hearing the evidence finds that it evokes compassion or demonstrates possible
           future dangerousness.’ ” Coleman, 183 Ill. 2d at 406, 701 N.E.2d at 1083.

¶ 62                    b. The Substance of Defendant’s Mitigation Claim
¶ 63       Defendant concedes in his brief to this court that he had “a role in [Schermerhorn’s]
       death,” but asserts that because he experienced an abusive childhood that he exacerbated by
       continually abusing drugs throughout his life, which adversely impacted his mental health,
       the trial court should not have imposed a 55-year sentence. Defendant’s assertion is
       unpersuasive.
¶ 64       We first note that defendant’s claimed mitigating factors of an abusive childhood,
       mental-health problems, and substance-abuse issues are not set forth in the list of mitigating

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       factors in section 5-5-3.1(a) of the Unified Code that “shall be accorded weight in favor of
       withholding or minimizing a sentence of imprisonment.” 730 ILCS 5/5-5-3.1(a) (West 2006).
       Indeed, our review of the 13 mitigating factors reveals that none would apply under the
       circumstances in this case. Given that the General Assembly has twice amended section 5-3-
       3.1 since the supreme court’s decisions in Shatner and Coleman and has not seen fit to
       include a defendant’s mental-health issues among the listed mitigating factors (see Pub. Act
       86-903, § 1, eff. Jan. 1, 1990 (1989 Ill. Laws 5001); Pub. Act 91-357, § 247, eff. July 29,
       1999 (1999 Ill. Laws 3647, 4588)), we conclude that this omission is no oversight.
¶ 65       As the supreme court noted in Shatner and reaffirmed in Coleman, defendant’s claims
       regarding his dire circumstances present a double-edged sword–that is, although defendant
       claims that his specific circumstances are mitigating factors, the trial court could have also
       considered all, some, or none as mitigating or aggravating factors.
¶ 66       Defendant’s mitigation claim is essentially a plea to this court to give him another chance
       by vacating his sentence and remanding for the imposition of a shorter period of
       imprisonment because–as in Shatner–he is less culpable as a result of his dismal life history.
       Despite his urging to the contrary, however, the following factors support the trial court’s
       imposition of a 55-year prison sentence, especially given that defendant has continually
       demonstrated–by his criminal history–that he cannot conform his behavior to societal norms:
       defendant’s (1) abusive childhood, which defendant cannot change; (2) mental-health issues,
       which Killian documented will continue to exist throughout defendant’s life; and (3) severe
       and chronic drug dependence, which defendant has demonstrated his unwillingness to curb.

¶ 67                                   III. CONCLUSION
¶ 68      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 69      Affirmed.




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