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                               Appellate Court                             Date: 2017.12.21
                                                                           12:01:23 -06'00'




                  People v. Johnson, 2017 IL App (4th) 160853



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MARCUS A. JOHNSON, Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-16-0853



Filed             October 19, 2017



Decision Under    Appeal from the Circuit Court of Champaign County, No. 14-CF-383;
Review            the Hon. Heidi N. Ladd, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and Sheril J. Varughese, of
Appeal            State Appellate Defender’s Office, of Springfield, for appellant.

                  Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                  Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE HOLDER WHITE delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Turner and Justice Harris concurred in the judgment
                  and opinion.
                                               OPINION

¶1          In May 2014, defendant, Marcus A. Johnson (born September 28, 1996), waived his right
       to juvenile court jurisdiction and entered into an open guilty plea to aggravated robbery. See
       705 ILCS 405/5-130(b)(i) (West 2014); 720 ILCS 5/18-1(b)(1) (West 2014). In July 2014, the
       trial court sentenced defendant to a term of 24 years’ imprisonment, followed by a two-year
       term of mandatory supervised release (MSR). In September 2014, the court denied defendant’s
       motion to reconsider the sentence but, on its own motion, reconsidered that denial in October
       2014. Accordingly, in October 2014, the court sentenced defendant to a term of 16 years’
       imprisonment followed by a two-year term of MSR.
¶2          Defendant appealed, and this court docketed the case as No. 4-14-0869 and entered an
       order summarily remanding for strict compliance with Illinois Supreme Court Rule 604(d)
       (eff. Mar. 8, 2016). Defendant thereafter filed a second motion to reconsider his sentence,
       which the trial court denied.
¶3          Defendant appeals, arguing that the trial court erred by considering, as an aggravating
       factor at sentencing, that defendant indicated he had a firearm, which was a factor inherent in
       the offense of aggravated robbery. For the following reasons, we affirm.

¶4                                          I. BACKGROUND
¶5                                             A. Guilty Plea
¶6         On May 16, 2014, defendant waived juvenile court jurisdiction and entered an open plea to
       a count of aggravated robbery. The factual basis showed the charge arose out of a March 2014
       incident in which two teenaged males, later identified as defendant and his codefendant (Erion
       Davis-Murdock), forced their way into Rebecca Runge’s residence. Runge’s daughter
       responded to a knock at the door, and one of the males pushed his way into the home and
       walked through the living room. The other male pushed Runge’s daughter onto the couch,
       grabbed a cordless telephone from her, and pointed what she perceived to be a gun at her
       forehead.
¶7         Runge, aged 71, heard a loud noise and male voices, which drew her to the front room of
       the residence where she saw the two males yelling at her daughter. Runge’s daughter grabbed a
       cordless telephone to call the police and one of the males, Davis-Murdock, took the phone
       from her. Runge then went into the bathroom to call the police on her red, flip-style cellular
       phone. One of the males, later identified as defendant, came into the bathroom, displayed what
       Runge perceived to be a small black gun, and took the cellular phone from her. Defendant was
       found two blocks away, hiding under a pickup truck where officers also found Runge’s red,
       flip-style cellular phone. Officers never located guns, ammunition, or objects that appeared to
       be guns or ammunition.
¶8         The trial court found a factual basis and accepted defendant’s guilty plea to one count of
       aggravated robbery. The court noted the charge was a Class 1 felony eligible for extended-term
       sentencing because the felony was committed against a person over the age of 60.

¶9                                      B. Sentencing Hearing
¶ 10      In July 2014, the trial court held a sentencing hearing. Prior to the hearing, defendant
       submitted additions to the presentence investigation report (PSI), which the court stated it

                                                  -2-
       considered in making its sentencing determination. Those documents disclosed that defendant
       was born with cocaine in his system and went to live with his adoptive mother at seven days
       old. In 2009, defendant’s adoptive father and sister passed away. A 2011 psychiatric
       evaluation indicated past sexual abuse, but defendant declined to discuss the incident.
       Defendant was diagnosed with attention deficit hyperactivity disorder, but he did not take his
       medication regularly. Another 2011 mental-health assessment indicated defendant had
       ongoing mental-health issues and at times heard voices calling to him when he was angry.
       Defendant reported his involvement with a gang and struggled with choosing between gang
       influences and making good choices.
¶ 11       The PSI showed defendant was adjudicated in 2011 for possessing cannabis with the intent
       to sell on school grounds in Champaign County case No. 11-JD-37. Defendant was sent to the
       Department of Juvenile Justice on an interim commitment. That order was vacated in July
       2011, and defendant was placed on probation. One month later, the State filed a petition to
       revoke defendant’s probation. Defendant failed to appear at the hearing to revoke his
       probation, but he was eventually apprehended on a warrant. His probation was revoked and he
       was resentenced to the Department of Juvenile Justice. Defendant was also sentenced to the
       Department of Juvenile Justice for a 2012 burglary charge (Champaign County case No.
       12-JD-17) and a 2013 criminal damage to property charge (Champaign County case No.
       13-JD-60).
¶ 12       At the sentencing hearing, the State introduced into evidence three letters defendant wrote
       in April 2014 while a detainee of the juvenile detention center. The letters contained various
       references to defendant’s gang, “Only the Dawgz.” In one of the letters, defendant asked the
       intended recipient to pass along gang-related threats. The letters also contained references to
       the news coverage of defendant’s case and comments about the crime. For example, in one
       letter, defendant wrote, “An[d] you know me an[d] my lil’ brother made the news paper!!! Ask
       my mom[,] it was saying how we put guns to the family head and shyt [sic] but stuff happens.”
       Defendant also asked the intended recipients of the letters to post threats and messages of
       support on social media.
¶ 13       Officer Timothy Atteberry testified that he acted as the juvenile officer the night defendant
       was arrested and sat in while police interviewed defendant. Following the interviews,
       Atteberry transported defendant and Davis-Murdock to the juvenile detention center. The State
       played an audio and video recording of defendant and Davis-Murdock while Atteberry
       transported them. The recording, made a few hours after the offenses were committed, depicts
       defendant and Davis-Murdock laughing, joking, and making gang references.
¶ 14       The State argued that defendant had little rehabilitative potential, pointing to his prior
       offenses, continued criminality, and escalation of violence. The State emphasized the
       seriousness of the offense and the impact it had on Runge and her daughter. Based on the
       recording and defendant’s intercepted letters after his arrest, the State argued he showed no
       remorse and intended to continue his gang affiliation and activity. Accordingly, the State asked
       for an extended-term sentence of 24 years’ imprisonment.
¶ 15       Counsel for defendant emphasized the fact he was only 17 years old and argued that
       Davis-Murdock was the leader on the night they entered Runge’s home. Counsel argued that
       the commission of the crime and the laughing and joking afterward was bravado and not who
       defendant truly was. Defendant had been in the detention center for three months and reports
       showed he was behaving himself. Counsel asserted defendant’s life had been tumultuous,

                                                   -3-
       having been adopted at seven days old but maintaining contact with his biological parents.
       Counsel also noted the loss of defendant’s adoptive father and sister in 2009. Defendant was
       not a member of a gang but had a close group of friends who decided to give their clique a
       name. Counsel asked for a minimal sentence.
¶ 16       The trial court stated, in part, it considered all relevant statutory factors, including (1) the
       nature and circumstances of the offense and (2) the evidence and applicable factors in
       aggravation and mitigation. The court engaged in a lengthy discussion regarding defendant’s
       prior criminal history, his opportunities and upbringing, his attitude, and his gang membership.
       The court then turned to the nature and circumstances of the offense and noted defendant and
       Davis-Murdock forced their way into a 71-year-old woman’s home. The court discussed the
       offense as follows:
               “They then confronted first the daughter. When she attempted to call for help, they
               grabbed the phone from her. This defendant was the one who pushed her down on the
               sofa. There is nothing in the factual basis that he attempted to stop what was going on
               or to withdraw or that he was reluctant. He was an active participant. He pointed the
               gun at her forehead. She believed it was a real gun. The weapons were never recovered,
               although the conversation references to the weapons in the notes certainly make it
               sound like they existed, whatever they were, real or not, and in this case since he pled
               guilty to aggravated robbery, I will consider only that he acted like he had a weapon.
               But it for all purposes appeared real to the victims. And this gun was literally pointed at
               the forehead first of the fifteen year old and then at Mrs. Runge while she was trying to
               go back to the bathroom to check on her granddaughter and call on a different phone for
               help.”
¶ 17       The trial court noted defendant showed no remorse in his conduct following the offense,
       laughing and joking in the squad car, and then writing letters that threatened future
       gang-related retaliation and violence. The court observed defendant appeared enamored with
       the gang lifestyle and described him as “riveted” and “rather self satisfied” while watching the
       video from the squad car. The victim impact statements showed how terrified Runge and her
       daughter were by the incident.
¶ 18       Finally, the trial court stated that the factors in aggravation far outweighed those in
       mitigation. Although defendant’s age was a factor in mitigation, his criminal history, including
       four felony convictions of increasing seriousness, weighed against this factor. The court then
       said, “He did threaten—his conduct did threaten violence. Well, that’s inherent in the charge.
       The fact that it was visited upon the victims in their own home is not, and that’s a factor in
       aggravation.” The court found defendant was likely to engage in similar dangerous behavior
       based on his attitude and his embrace of his lifestyle. The court found an extended-term
       sentence appropriate and sentenced defendant to a term of 24 years’ imprisonment.
¶ 19       Defendant timely filed a motion to reconsider his sentence. At the September 3, 2014,
       hearing on the motion to reconsider defendant’s sentence, the trial court made the following
       relevant comments: “[T]he [c]ourt considered the fact that this happened in the home. *** [N]o
       gun or ammunition were ever found, and neither suspect discharged, fired[,] or loaded any
       weapon. And so, the [c]ourt did not consider that beyond what would define the elements of
       the offense.” The court also stated, “the suggestion that there may not have been a gun and that,
       simply, the [d]efendant was indicating by his actions he had a gun to the victims is exactly


                                                    -4-
       what he pled guilty to and that’s exactly what he was sentenced for.”

¶ 20                                C. Remaining Procedural History
¶ 21      We summarize the following procedural background necessary to resolve a jurisdictional
       argument raised by the State:
                 On July 17, 2014, following the guilty plea and sentencing, defendant timely filed a
             motion to reconsider his sentence.
                 On September 3, 2014, following a hearing, the trial court denied defendant’s
             motion to reconsider the sentence.
                 On September 4, 2014, defendant filed a notice of appeal (identifying the May 16,
             July 2, and July 17 judgments), which this court docketed as No. 4-14-0782.
                 On September 26, 2014, the trial court notified the parties of its intent, in light of
             defendant’s codefendant receiving a 12-year sentence, to reconsider the September 3,
             2014, denial of defendant’s motion to reconsider. The court wished to reconsider the
             denial of the motion to reconsider the sentence based on Davis-Murdock’s negotiated
             plea for 12 years’ imprisonment for the same offense. Accordingly, on the court’s own
             motion, the matter was set for further hearing on October 2, 2014. The court further
             directed the office of the State Appellate Defender to withdraw the appeal in case No.
             4-14-0782 to allow jurisdiction to return to the trial court.
                 On September 29, 2014, this court allowed defendant’s motion to dismiss the
             appeal in case No. 4-14-0782. On September 30, 2014, the appellate court mandate was
             filed in the circuit court.
                 On October 2, 2014, the trial court held a hearing to reconsider the September 3,
             2014, denial of defendant’s motion to reconsider the sentence. That same day, the court
             entered an amended judgment sentencing defendant to 16 years’ imprisonment and a
             2-year term of MSR.
                 On October 3, 2014, defendant filed a notice of appeal (identifying the October 2
             sentencing judgment), which this court docketed as No. 4-14-0869.
                 On May 24, 2016, the trial court entered a second amended judgment sentencing
             defendant to 24 years’ imprisonment. The record contains no related transcripts or
             motions.
                 On August 1, 2016, this court, based on defendant’s agreed motion for summary
             remand, remanded the matter to the trial court for strict compliance with Illinois
             Supreme Court Rule 604(d) (eff. Mar. 8, 2016).
                 On August 26, 2016, defendant filed a second motion to reconsider his sentence.
                 In September 2016, following a hearing on the second motion to reconsider the
             sentence, the trial court denied the motion and entered a third amended judgment
             sentencing defendant to 16 years’ imprisonment and a 2-year term of MSR. That same
             month, defendant filed a notice of appeal in the present case, which this court docketed
             as No. 4-16-0853.
¶ 22      This appeal followed.




                                                  -5-
¶ 23                                        II. ANALYSIS
¶ 24       On appeal defendant argues the trial court erred by considering, as an aggravating factor at
       sentencing, that defendant indicated he had a firearm, which was a factor inherent in the
       offense of aggravated robbery. We turn first to a jurisdictional issue raised by the State.

¶ 25                                            A. Jurisdiction
¶ 26        The State contends defendant’s September 4, 2014, notice of appeal (docketed as No.
       4-14-0782) deprived the trial court of jurisdiction to reconsider the denial of the motion to
       reconsider sentence and enter the October 2014 amended sentencing order. According to the
       State, the dismissal of appeal No. 4-14-0782 did not return jurisdiction to the trial court
       because this court did not specifically remand the matter to the trial court. Based on this lack of
       jurisdiction to enter the October 2, 2014, order, the State asserts the order was void and asks
       this court to vacate it. However, the State argues that this court had jurisdiction over appeal No.
       4-14-0869, which was filed October 3, 2014, because that was the thirtieth day following the
       trial court’s September 3, 2014, denial of defendant’s motion to reconsider his sentence. After
       remand in case No. 4-14-0869 for strict compliance with Rule 604(d), defendant filed another
       motion to reconsider his sentence, which the court denied, and defendant again appealed.
       Therefore, the State contends this court has jurisdiction over this appeal.
¶ 27        The jurisdictional question before this court is narrow. We must determine whether the
       trial court had jurisdiction to enter the October 2, 2014, order where the court, on its own
       motion, reconsidered its previous denial of defendant’s motion to reconsider his sentence. That
       order was entered within 30 days of the denial of the motion to reconsider defendant’s
       sentence—a period during which the court retains jurisdiction. A trial court generally loses
       jurisdiction “at the end of the 30-day window following the entry of a final judgment.” People
       v. Bailey, 2014 IL 115459, ¶ 8, 4 N.E.3d 474.
¶ 28        As noted above, the State contends the dismissal of appeal No. 4-14-0782 did not return
       jurisdiction to the trial court because this court did not remand the matter to the trial court. In
       support, the State cites Bank of Viola v. Nestrick, 94 Ill. App. 3d 511, 418 N.E.2d 515 (1981),
       and People v. Vasquez, 339 Ill. App. 3d 546, 791 N.E.2d 33 (2003). In Bank of Viola, a trial
       was held and judgment was entered in favor of the defendant. Bank of Viola, 94 Ill. App. 3d at
       512, 418 N.E.2d at 517. The bank appealed, and the appellate court reversed in an opinion filed
       on May 31, 1979, and the mandate from the appellate court was filed in the circuit court on July
       30, 1979. Id. In June 1979, prior to the filing of the mandate (i.e., prior to reinstatement of
       jurisdiction in the trial court and while the appellate court retained jurisdiction), the trial court
       allowed a motion to withdraw as defense counsel. Id. Apparently based on the appellate court
       opinion, although the mandate had not yet been filed, the bank filed a notice to schedule a trial
       date. Id. On July 18, 1979, the trial court held a hearing and set a date for a trial on the merits.
       Id. “That the circuit court had proceeded with the withdrawal motion and with the motion to set
       a trial date at a time prior to the return of the mandate was apparently the result of clerical
       error.” Id.
¶ 29        The trial court held a hearing on the merits on September 12, 1979, after the appellate court
       mandate was filed in the circuit court, reinstating jurisdiction. Id. at 513, 418 N.E.2d at 517.
       However, the appellate court determined reversal was required because “significant matters
       affecting the case were decided by the trial court during a time when it had no jurisdiction over
       the case.” Id. at 514, 418 N.E.2d at 518. Specifically, the appellate court held (1) the hearing to

                                                     -6-
       set a trial date was held when the court had no jurisdiction, (2) the order permitting defense
       counsel to withdraw and the order setting the matter for a trial date were entered when the
       circuit court had no jurisdiction, and (3) the “court’s actions, taken when it ha[d] no
       jurisdiction over a case, [had] no effect and are null and void.” Id. at 514, 418 N.E.2d at
       518-19. Accordingly, the appellate court vacated the trial court’s judgment and reversed and
       remanded for further proceedings. Id. at 516, 418 N.E.2d at 520.
¶ 30        Unlike Bank of Viola, the present case does not involve actions taken during the pendency
       of an appeal. Here, defendant filed a notice of appeal, but then filed a motion to dismiss the
       appeal within 30 days after the filing of the circuit court’s final judgment denying the motion to
       reconsider defendant’s sentence. Bank of Viola does not address such a situation. Rather, it
       focuses on actions taken by the circuit court prior to the filing of the appellate mandate
       remanding and reinstating jurisdiction in the circuit court. Accordingly, we do not find Bank of
       Viola instructive in the present case.
¶ 31        In Vasquez, on May 28, 1996, the trial court denied the defendant’s motion for a new trial
       and sentenced the defendant, in absentia, to 19 years’ imprisonment. Vasquez, 339 Ill. App. 3d
       at 548, 791 N.E.2d at 34. The trial court said it would “continue” the case to hear a motion to
       reconsider the sentence once the defendant was returned to custody. Id. Also on May 28, 1996,
       the defendant filed a timely notice of appeal. Id. On April 3, 1997, on the State’s motion, the
       appellate court dismissed the defendant’s direct appeal. Id. In July 1999, the defendant was
       arrested on an outstanding warrant and the trial court entered judgment on the 1996 sentence.
       Id. at 548-49, 791 N.E.2d at 34. Thereafter, defense counsel filed motions to reduce the
       sentence and for a new trial. Id. at 549, 791 N.E.2d at 34-35. In February 2001, the court held a
       sentencing hearing and reduced the defendant’s sentence to 17 years’ imprisonment. Id. at 549,
       791 N.E.2d at 35. A subsequent motion to reduce or modify the sentence was denied and, on
       March 9, 2001, the defendant filed a second notice of appeal. Id.
¶ 32        The Vasquez court determined that the trial court lost jurisdiction upon the May 28, 1996,
       filing of the first notice of appeal. Id. at 550, 791 N.E.2d at 35. Under the fugitive rule, the
       appellate court dismissed that appeal on April 3, 1997. Id. However, “[t]hat dismissal did not,
       as [the] defendant implie[d], reinvest the trial court with jurisdiction to hear the series of
       motions filed in 1999 upon [the] defendant’s return.” Id. at 550, 791 N.E.2d at 35-36. The
       appellate court rejected the defendant’s attempt to rely on the absentia statute (725 ILCS
       5/115-4.1(e) (West 2000)), and held the trial court’s February 2001 order reducing the
       defendant’s sentence was void for lack of jurisdiction. Id. at 551, 791 N.E.2d at 36.
¶ 33        We find Vasquez distinguishable. As discussed above, the Vasquez court held that the
       dismissal of an appeal under the fugitive rule almost one year after the filing of the notice of
       appeal did not reinvest the trial court with jurisdiction to hear motions filed more than three
       years after the defendant’s conviction and sentence became final. In the present case, the
       appeal was dismissed within 30 days of the circuit court’s denial of the motion to reconsider
       defendant’s sentence. Under these circumstances, we think the dismissal of appeal No.
       4-14-0782 and the subsequent hearing to reconsider the denial of defendant’s motion to
       reconsider his sentence is more appropriately treated as a request for reconsideration of a
       ruling on a postjudgment motion. When a court denies a postjudgment motion, the final
       judgment remains intact. Gibson v. Belvidere National Bank & Trust Co., 326 Ill. App. 3d 45,
       48, 759 N.E.2d 991, 994 (2001). In such a case, “further motions for reconsideration may be


                                                   -7-
       filed within 30 days of the denial, but they will not stay the time for filing a notice of appeal.”
       Id. at 48-49, 759 N.E.2d at 994.
¶ 34        Our research has revealed no case that considers a trial court’s jurisdiction over a matter
       where an appeal from the denial of a postjudgment motion is dismissed within 30 days of the
       entry of the denial. Clearly, if the appeal were dismissed after the expiration of the 30 days
       following the denial, the trial court would not have jurisdiction, as in Vasquez. The court’s
       motion to reconsider the denial of defendant’s motion to reconsider his sentence is not a timely
       postjudgment motion as contemplated by Illinois Supreme Court Rule 606(b) (eff. Dec. 11,
       2014), where a notice of appeal is of no effect when a circuit court has continuous jurisdiction
       because the defendant’s timely filed postjudgment motion remained pending. See People v.
       Fuller, 2013 IL App (3d) 110391, ¶ 28, 990 N.E.2d 882. However, when defendant sought
       dismissal of his appeal in No. 4-14-0782 and the appellate court dismissed the appeal and filed
       the mandate with the circuit court, we do not see why jurisdiction would not return to the
       circuit court for the remainder of the 30-day period following the denial of defendant’s motion.
       The State cites no clearly contrary authority. Rather, we conclude the trial court retained
       jurisdiction for the remainder of the 30 days following its denial of defendant’s motion to
       reconsider his sentence.
¶ 35        Although not precisely on point, we find some guidance in People v. Miraglia, 323 Ill.
       App. 3d 199, 753 N.E.2d 398 (2001). In Miraglia, the defendant filed a motion to reconsider
       the judgment of guilty. Id. at 201, 753 N.E.2d at 400. On November 9, 1999, the trial court
       denied the motion and sentenced the defendant. Id. That same date, the defendant filed a notice
       of appeal. Id. On November 23, 1999, new defense counsel filed an amended notice of appeal.
       Id. On December 8, 1999, defense counsel filed a second posttrial motion, which the trial court
       denied on December 13, 1999. Id. at 201-02, 753 N.E.2d at 400. Although the appellate court
       questioned the filing of this second repetitious postjudgment motion, it acknowledged the trial
       court had jurisdiction to rule upon the motion because it was filed within 30 days of the final
       sentencing judgment. Id. at 204, 753 N.E.2d at 402. The court reasoned that because the filing
       of the second motion rendered the original notice of appeal ineffectual, and the denial of the
       second motion was final when the court denied it on December 13, 1999, the 30-day period for
       filing an appeal began anew. Id.
¶ 36        Following the December 13, 1999, denial of the second postjudgment motion, “no new
       notice of appeal was filed until after the ruling on the third motion, on January 20, 2000, a date
       well beyond the prescribed 30-day period for appeal.” Id. at 204, 753 N.E.2d at 403. The
       appellate court determined that the trial court did not have the “authority to extend the time for
       appeal, under the guise of hearing a successive, amended motion after ruling on the prior
       motion—by allowing yet another posttrial motion to be filed on January 11 and ruling on it on
       January 20, 2000.” Id. at 204-05, 753 N.E.2d at 403. The appellate court was clear: “a trial
       court cannot permit a defendant to file a postjudgment motion directed against the final
       judgment, rule on it, and then rule on a motion to reconsider the denial of that posttrial motion
       and thereby extend its jurisdiction and the time for appeal.” Id. at 205, 753 N.E.2d at 403.
¶ 37        To the extent that the reconsideration of the denial of the motion to reconsider defendant’s
       sentence was similar to a successive postjudgment motion, we find what occurred here is not in
       conflict with Miraglia. The trial court entered its final order denying defendant’s motion to
       reconsider his sentence on September 3, 2014. On October 2, 2014, after appeal No. 4-14-0782
       was dismissed and the mandate from the appellate court was filed in the circuit court, the trial

                                                    -8-
       court modified its denial of defendant’s motion to reconsider his sentence and, instead, granted
       the motion and reduced defendant’s sentence to 16 years’ imprisonment. This modification
       was made within the 30 days the court retained jurisdiction to modify its final order. Defendant
       appealed on October 3, 2014, also within the 30-day period for the filing of an appeal from a
       final order. The court did not impermissibly rule on a postjudgment motion “then rule on a
       motion to reconsider the denial of that posttrial motion and thereby extend its jurisdiction and
       the time for appeal.” (Emphasis added.) Id. The trial court did not extend its jurisdiction
       beyond the 30-day period following the denial of the postjudgment motion, nor did it extend
       the time for defendant to file an appeal. Accordingly, we conclude the trial court had
       jurisdiction where the original notice of appeal was dismissed, the mandate was filed in the
       circuit court, the circuit court modified its judgment, and defendant filed a new notice of appeal
       within the 30-day period following the denial of defendant’s motion. Accordingly, we decline
       to vacate the court’s October 2, 2014, modification of its September 3, 2014, final order.

¶ 38                                              B. Sentencing
¶ 39        Turning to the merits of this appeal, defendant asserts the trial court erred by considering,
       as an aggravating factor, that defendant indicated he had a firearm because that was a factor
       inherent in the offense. The State contends defendant has procedurally defaulted this issue by
       failing to raise it before the trial court. However, defendant asks this court to review this claim
       under the plain-error doctrine.
¶ 40        The threshold question in plain-error analysis is whether there was error at all. People v.
       Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007).
                “[T]he plain-error doctrine allows a reviewing court to consider unpreserved error
                when (1) a clear or obvious error occurred 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 occurred 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.” Id. at 565, 870
                N.E.2d at 410-11.
       However, relief is only available under the plain-error doctrine if the defendant can “first show
       that a clear or obvious error occurred.” People v. Hillier, 237 Ill. 2d 539, 545, 931 N.E.2d
       1184, 1187 (2010).
¶ 41        Defendant contends the trial court improperly considered, in aggravation, that defendant
       indicated he had a firearm. Defendant asserts this was error because it was a factor inherent in
       the offense of aggravated robbery, in that defendant took property from Runge by the use of
       force or threatening the imminent use of force while indicating verbally or by his actions to the
       victim that he was armed with a firearm. We disagree.
¶ 42        The trial court, in relevant part, made the following comments at sentencing regarding the
       nature and circumstances of the offense:
                “He pointed the gun at her forehead. She believed it was a real gun. The weapons were
                never recovered, although the conversation references to the weapons in the notes
                certainly make it sound like they existed, whatever they were, real or not, and in this
                case since he pled guilty to aggravated robbery, I will consider only that he acted like
                he had a weapon. But it for all purposes appeared real to the victims. And this gun was


                                                     -9-
               literally pointed at the forehead first of the fifteen year old and then at Mrs. Runge
               while she was trying to go back to the bathroom to check on her granddaughter and call
               on a different phone for help.”
       The court also said, “He did threaten—his conduct did threaten violence. Well, that’s inherent
       in the charge. The fact that it was visited upon the victims in their own home is not, and that’s
       a factor in aggravation.”
¶ 43       The court may consider “the nature and circumstances of the offense, including the nature
       and extent of each element of the offense as committed by the defendant.” (Internal quotation
       marks omitted.) People v. Saldivar, 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, 1143 (1986).
       “Certain criminal conduct may warrant a harsher penalty than other conduct, even though both
       are technically punishable under the same statute.” Id. at 269, 497 N.E.2d at 1143.
       Consequently, the degree of harm caused to the victim may be taken into account in
       determining the length of a particular sentence. Id.
¶ 44       Here, the trial court considered the degree of harm caused by the fact the offense occurred
       within the victims’ home—a place where one’s feeling of safety and security is
       paramount—and the terror the victims experienced at having what they believed to be a
       firearm pointed at them, including the fact the gun was pointed directly at the 15-year-old
       victim’s forehead. The court specifically noted the threat of violence was inherent in the
       offense and emphasized its consideration of factors in aggravation related to this event
       occurring in the home and the terror felt by the victims. Additionally, the court considered
       defendant’s obvious lack of remorse, failure to take advantage of previous opportunities for
       rehabilitation, and the likelihood defendant would reoffend based on his attitude and embrace
       of a gang lifestyle. Accordingly, we conclude the court properly considered the nature and
       circumstances of the offense and did not err by improperly considering a factor inherent in the
       offense in considering aggravating factors. Because we find no clear or obvious error, we
       decline to review defendant’s claim under the plain-error doctrine. Hillier, 237 Ill. 2d at 545,
       931 N.E.2d at 1187.

¶ 45                                       III. CONCLUSION
¶ 46       For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $75 statutory assessment against defendant as costs of this appeal. 55 ILCS
       5/4-2002 (West 2016).

¶ 47      Affirmed.




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