                                       2017 IL App (1st) 143875


                                                                             FIFTH DIVISION
                                                                             September 15, 2017

No. 1-14-3875

                                                                 )    Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                             )    Circuit Court of
                                                                 )    Cook County
                Plaintiff-Appellee,                              )
                                                                 )
v.                                                               )    No. 13 CR 8303
                                                                 )
DANIEL NEASOM,                                                   )
                                                                 )    Honorable
                Defendant-Appellant.                             )    James B. Linn,
                                                                 )    Judge Presiding.


       PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
       Justice Gordon and Justice Lampkin concurred in the judgment and opinion.


                                            OPINION

¶1     Following a bench trial, defendant Daniel Neasom was convicted of first degree murder

(720 ILCS 5/9-1(a)(1) (West 2010)) and sentenced to 27 years’ imprisonment. Defendant

appeals his conviction, arguing that his trial counsel was ineffective for failing to advance a

theory of second degree murder. Defendant also contends that his 27-year prison sentence is

excessive. For the reasons set forth herein, we affirm the judgment of the trial court.

¶2     Defendant was charged with two counts of first degree murder (720 ILCS 5/9-1(a)(1), (2)

(West 2010)). Defendant waived his right to a jury trial and, on July 29, 2014, and the case

proceeded to a bench trial.

¶3     At trial, Calvin Sperling testified that, on the morning of July 23, 2011, he and his co-

worker Jonathan Schutt were traveling southbound on South Kedzie Avenue after leaving a
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worksite. As he drove his truck through the 5800 block of South Kedzie, Sperling heard the

sound of breaking glass and a woman’s voice screaming for help. Schutt, who was a passenger in

Sperling’s vehicle, stuck his head out of the truck’s window and informed Sperling that a woman

was hanging out of the window of a nearby building. Seconds later, Schutt exclaimed, “Oh, my

god, she just fell from the window.” Sperling called 911 to report the incident and drove his

vehicle to an area one block north of the scene to wait for the police to arrive.

¶4     When the police arrived, Sperling and Schutt told officers what they had observed. As

Sperling was speaking to police officers, he observed a man climb out of a window located

above the woman’s body. The man was hanging from a ledge and attempted to scale the wall “as

if he was Spiderman.” The man lost his grip and fell backward onto the sidewalk below. On

cross-examination, Sperling explained that he did not observe the woman hanging out of the

window but did hear the glass break and woman scream.

¶5     Schutt testified that morning he left a worksite at the intersection of 55th Street and South

Kedzie Avenue with Calvin Sperling. As they were traveling in the 5800 block of South Kedzie,

Sperling told Schutt that he heard the sound of breaking glass, and Schutt stuck his head out of

the passenger side window to investigate the sound. Schutt noticed broken glass on the sidewalk

outside an apartment building. He looked up and observed a woman hanging headfirst out of a

window. The woman’s upper torso was completely out of the window, her arms were flailing,

and she was screaming for help. Ten to fifteen seconds later, Schutt observed the woman fall

from the window and land head-first on the sidewalk. Schutt told Sperling to call 911, and

Sperling drove his truck to a location just north of the scene.

¶6     When police arrived at the scene, Sperling and Schutt approached the officers and

described the incident. Schutt then observed a man hanging from the window out of which the



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woman had fallen. Schutt turned away because he did not want to see another person fall from

the building, but he heard the sound of the man hitting the ground.

¶7     On cross-examination, Schutt admitted that he did not observe anyone push the woman

out of the window and did not observe anyone else near the window at that time.

¶8     Michael Divorski testified that he was the brother of the woman who had fallen out of the

window, whom he identified as Cynthia Barnes. Divorski talked to Barnes the night before her

death. Barnes was homeless at the time, and told Divorski that she was going to try to find

somewhere to stay that night because it was raining.

¶9     Officer Hector Fuentes testified that, on July 23, 2011 he was conducting routine patrol

with his partner Officer Peter Gurskis. At 5:17 a.m., the officers received a “person down” call at

the location at South Kedzie Avenue. When they arrived on the scene, Fuentes observed the

body of a female, whom Gurskis recognized as Cynthia Barnes, lying on the ground, surrounded

by broken glass. Her body was located in front of an apartment building with retail units on the

first floor. Fuentes looked up and observed a shattered window on the third floor, directly above

the body. He could hear someone moving around inside the apartment building. He remained on

the sidewalk while Gurskis went inside the building to investigate. Moments later, fire

department personnel followed Gurskis into the building with a sledgehammer.

¶ 10   Fuentes could hear Gurskis and fire department personnel using the sledgehammer. He

then heard glass shatter, and looked up to observe defendant shattering a window with a clothes

iron. Defendant, who was not wearing any clothes, exited the building through the window.

Fuentes shouted at defendant, telling him to go back inside the building, and defendant climbed

back through the window. A few seconds later, defendant climbed out of the previously shattered

window directly above the body. Defendant was wearing a pair of sweat pants, and he attempted



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to climb down the building wall. Fuentes observed defendant fall from the wall, and land head-

first on the sidewalk. Paramedics rushed to assist defendant, placed him on a stretcher, and

placed him inside an ambulance.

¶ 11   Officer Fuentes heard the paramedics calling for help from inside the ambulance. He ran

to the ambulance and observed defendant flailing his arms and trying to get off the stretcher.

Fuentes assisted in holding defendant down while the paramedics restrained him. The

paramedics then transported defendant to a hospital.

¶ 12   Officer Gurskis testified that he and Officer Fuentes were on routine patrol on July 23,

2011, when they received a “woman down” call and drove to South Kedzie Avenue. There,

Gurskis observed the body of Cynthia Barnes lying on the sidewalk in front of an apartment

building. She had blood in her hair and was surrounded by broken glass. Gurskis looked up and

observed a broken window on the third floor of the building. He entered the building and

attempted to enter apartment 304, but the door was locked. He could hear someone walking on

the wooden floor of the apartment. After attempts to kick in the door failed, Gurskis called for

the fire department to come to the apartment with tools to open the door.

¶ 13   Fire department personnel arrived at the apartment door with a sledgehammer and a

prying tool. When the door was opened, the responders had to move a refrigerator that had been

placed in front of the door. Gurskis described the apartment as “in complete disarray,” with

blood all over the apartment and broken glass near the windows. After observing that nobody

was in the immediate living area, Gurskis headed toward an area of the apartment where a door

had been barricaded by a box spring and bed frame. After removing the barricades, he entered a

bedroom, where he observed two windows, one of which was broken. The broken window had

blood on it, and was situated directly above the victim’s body. After finding a large knife with



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blood on it, Gurskis left the apartment and drove to the hospital where paramedics had taken

defendant. Two days later, on July 25, 2011, Gurskis arrested defendant at the hospital.

Defendant was released without being charged, but was rearrested after DNA and toxicology

tests were completed.

¶ 14   Detective Keith Smith testified he arrived at South Kedzie Avenue to investigate the

death of Cynthia Barnes. When he arrived, Barnes’s body was still lying on the sidewalk. While

walking through the apartment, he noticed that the bedroom had two windows, one of which was

broken and situated directly above Barnes’s body.

¶ 15   Doctor Adrienne Segovia testified that she was an assistant Cook County medical

examiner and had conducted the autopsy of Cynthia Barnes. Segovia detailed numerous external

injuries that Barnes had sustained and classified them as sharp force injuries, blunt force injuries,

and injuries that had characteristics of both blunt and sharp force trauma. Notable sharp force

injuries were consistent with injuries inflicted by glass, and included: a cut on the top of Barnes’s

head and incised wounds on her face, left forearm, left wrist, left hand, and left thigh. Notable

blunt force injuries included: a star shaped wound on the top of Barnes’s head, lacerations on the

inside of her lips, bleeding of her left eye and ear, and bruises and scrapes on her face, neck,

chest, abdomen, arms, legs and feet.

¶ 16   Regarding internal injuries, Dr. Segovia detailed hemorrhages, a broken sternum, broken

ribs, dislocation and fracturing of the spine, and a fractured skull. Dr. Segovia determined that

the cause of death was multiple injuries due to a fall from a large height. She also concluded that

the manner of death was homicide.

¶ 17   On cross-examination, Dr. Segovia testified that she based her initial opinion regarding

the manner of death on information that she had at the time. Specifically, she based her opinion



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on the fact that the apartment had been barricaded, the fact that there was a knife in the

apartment, and the fact that Barnes fell out of a window. She learned this information by viewing

a police report and photographs taken by one of the medical examiner’s investigators.

¶ 18   On April 10, 2014, Dr. Segovia met with defendant’s counsel and another assistant public

defender and viewed photographs of the crime scene taken by the Chicago police department.

She had not viewed these photographs before she rendered her opinion as to the manner of death

on July 31, 2011. The photographs were marked as exhibits and shown to Dr. Segovia at trial.

¶ 19   Dr. Segovia testified that the photographs showed the apartment “in disarray,” a broken

apartment door, the outside of the apartment door marked with blood, and a knife that was found

inside the apartment. Based on these photographs, Dr. Segovia opined that Barnes was not

barricaded in the apartment.

¶ 20   Dr. Segovia also reviewed an Illinois State Police lab report which indicated that two

DNA profiles were found on the blade of the knife, from which Barnes could not be excluded.

The report also indicated that the DNA profile found on the handle of the knife matched Barnes.

This information, paired with photographs of defendant appearing to show that he had been

stabbed in the thigh two times, led Dr. Segovia to reevaluate the cause of the cuts on Barnes’s

hand. Instead of being cut by glass, it was possible that Barnes’s hand was cut when the handle

of the knife slipped out of her hand.

¶ 21   Defense counsel introduced a photograph, taken from outside the apartment building,

which showed three windows situated above a sign that was anchored to the building. Dr.

Segovia testified that the left-most window in the picture was closed. The window in the middle

of the group appeared to be open and was situated directly above the sign hanging from the

building. The window on the right was broken, and a clothes iron sat on the window sill. This



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photograph matched other photos depicting the crime scene which showed that a fourth window

had also been broken. The fourth window was separate from and situated to the right of the three

windows.

¶ 22   Based on this new evidence, which she had not considered before, Dr. Segovia changed

her opinion as to manner of death from homicide to undetermined. When asked if she had an

opinion as to the window from which Cynthia Barnes had fallen, Dr. Segovia testified that the

fracture and dislocation of Barnes’s spine could have been caused by her impacting the sign

while falling from the middle, open and unbroken, window. She clarified that this injury would

not likely have occurred if Barnes had simply fallen and hit the ground. Segovia admitted she did

not know from which window Barnes had fallen, and could not determine whether she had

fallen, jumped, or was pushed out the window.

¶ 23   After the State rested, the trial court denied defendant’s motion for a directed finding.

Defendant then proceeded by way of stipulation. First, the parties stipulated that, if called to

testify, Doctor Ellen Omi would testify that defendant had three stab wounds on his right thigh

when he was admitted to the hospital on July 23, 2011. Second, the parties stipulated that the

handle of the knife found in the apartment contained a female DNA profile that matched

Barnes’s DNA profile. A sample taken from the blade of the knife contained two DNA profiles,

one of which matched defendant. Barnes could not be excluded from the other profile. Finally,

the parties stipulated that a toxicological analysis of a blood sample from Barnes tested positive

for cocaine.

¶ 24   During closing argument, defense counsel mentioned that defendant had been stabbed

three times in the leg and that Barnes’s blood was found on the handle of the knife. She referred

to Barnes as “the attacker.” The trial court then interrupted counsel, and the following exchange



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took place:

               “THE COURT: I want to make sure I understand what you’re arguing. Are you

       saying that something happened in self-defense?

               [DEFENSE COUNSEL]: No.

               THE COURT: Are you asking this court to consider lesser included offenses?

               [DEFENSE COUNSEL]: No.

               THE COURT: Okay.”

¶ 25   Defendant’s counsel continued, arguing that Barnes climbed out the window to get away

after she stabbed defendant. The court again interrupted:

               “THE COURT: Again, I want to ask you. I want to make sure I understand you

       exactly. You’re saying she stabbed him before she went out the window. Are you asking

       for consideration of lesser included offenses, are you saying there is some sort of self-

       defense element going on here?

               [DEFENSE COUNSEL]: No, Judge.

               THE COURT: You are sure. All right.”

¶ 26   Defense counsel’s theory of the case was that Barnes either accidently fell out of or was

trying to climb out of the window. Counsel argued that both Barnes and defendant were high on

drugs at the time and that “there is no accounting for what that can cause someone to do.” She

ultimately argued that there was no evidence that defendant pushed Barnes out the window.

¶ 27   Near the end of the State’s argument in rebuttal, the court interrupted, saying:

               “THE COURT: [Defense Counsel] was not arguing that [defendant’s stab wounds

       were] self-inflicted. Her argument is that they were caused by Ms. Barnes prior to her

       falling out the window. And she is also telling me emphatically that she does not want me



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       to consider any kind of self-defense theory or lesser included offense.”

¶ 28   After passing the case so that defense counsel could speak to defendant regarding the

theory of the case, the court continued the case to another date so that defense counsel could

confer with defendant and possibly reargue the case.

¶ 29   On September 5, 2014, the trial court allowed defense counsel to reopen her closing

argument to clarify her strategy and address the court’s questions and concerns. Counsel argued

that there was circumstantial evidence that Cynthia Barnes stabbed defendant, but that the

evidence was “very, very scarce” and that if the case were being tried by a jury, she “would not

even get the [second degree murder] instruction. There is just not the evidence there.” Counsel

noted that in cases where a second degree murder instruction based on provocation was given to

a jury, there was some testimony about a fight, struggle, or mutual combat. Stating that there was

no such testimony, counsel declared that “[a]s an officer of the Court, I can’t in good faith stand

before your honor and argue for second degree, because to do so, I would have to create a story

that included self-defense and included provocation and I can’t do that because the evidence

doesn’t support it.” Noting that the State had to prove first degree murder before second degree

murder could be considered, counsel argued that the State had failed to prove defendant guilty of

first degree murder beyond a reasonable doubt.

¶ 30   In rebuttal, the State argued that the only explanation consistent with the evidence was

that defendant pushed Barnes out of the broken window and held her out the window for a period

of 10 seconds. The trial court found defendant guilty of both counts of first degree murder. It

reviewed the evidence and determined that, after some sort of quarrel, Cynthia Barnes came out

of a window head first and:

       “was held for about 10 seconds, and there’s no way this woman is going to maneuver



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       herself like some kind of circus performer for that period of time hanging by her toes of

       her own volition, or even recklessly. The only way she could have got there is that

       somebody pushed her out through the window. The only person up there was

       [defendant].”

The court concluded “[t]here was some kind quarrel that happened, but whatever happened in

this case, since I’m being told not to consider any provocation or self-defense, the only way that

this woman got out the window is because [defendant] pushed her out the window.”

¶ 31   Defense counsel filed motions to reconsider and for a new trial, arguing that, even in the

face of her argument against consideration of second degree murder, the trial court could have

exercised its discretion to, sua sponte, find defendant guilty of a lesser mitigated offense.

Counsel requested that the court reconsider the facts that supported the finding of second degree

murder. The trial court declined to reconsider its finding of first degree murder. It made this

decision “in light of the fact that I was told that I couldn’t even instruct the jury on second degree

murder, and that if this were a jury trial, that she wouldn’t want that, and she would have the

absolute right *** to proceed in that fashion.” It concluded by stating “I have a woman coming

out of a window under circumstances that could only be explained by the finding of first degree

murder based on the evidence heard.”

¶ 32   At the sentencing hearing, the State presented live testimony regarding two separate

occasions in which defendant had engaged in violence against women. Regarding first instance,

Officer Collado testified that, on August 23, 2010, officers observed defendant repeatedly punch

and hit a victim as she was lying on the ground, going in and out of consciousness. Regarding the

second instance, Officer Rosalyn Sutton testified that, on June 19, 2009, she responded to a call

regarding “a naked woman hanging out of a car window.” When she arrived at the scene, she



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found a naked woman lying on the ground, covered in blood “from head to toe.” The woman,

Ericka Jackson, was rushed to a hospital. Ericka Jackson testified at the sentencing hearing that

defendant had driven her to a store to buy liquor. After drinking some of the liquor and falling

sleep, Jackson awoke to defendant beating her and threatening to kill her. Defendant forced

Jackson to engage in oral sex, and she attempted to escape the car. 1 Jackson testified that she

jumped out the window of the car, and stated that defendant kicked or pushed her as she fell out

of the car. Ericka’s sister Monica Jackson testified at the hearing that Ericka was unrecognizable

at the hospital as she was covered in blood and her face was swollen and covered with stab

wounds. After Ericka left the hospital, Monica and her family had to care for her for a week or

two, including feeding her in bed and helping her to the bathroom.

¶ 33    The State introduced victim impact statements from Cynthia Barnes’s mother, daughter,

son, and brother. Arguing in aggravation, the State noted that defendant’s criminal history

showed that defendant could not conform his conduct to the law and that the live testimony

regarding the assault of Ericka Jackson demonstrated that he was a clear and present danger to

the public. Focusing on defendant’s violent past and lack of remorse, the State requested that the

court sentence defendant to a “significant time period.”

¶ 34    Defense counsel introduced “a stack” of approximately 15 letters written by members of

the community in support of defendant. Counsel argued that, though defendant had a criminal

background, none of his convictions were for felonies and most of his convictions were related to

drugs or alcohol. At the time of his incarceration, he was suffering from alcohol and crack

cocaine addiction.

¶ 35    Counsel noted that defendant had “a very extensive” family support system, which


1
 The parties later stipulated that Ericka Jackson never told detectives that defendant forced her to perform
oral sex.
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consisted of his mother, father, sister, and aunts, all of whom had been in court for a portion of

the proceedings. He was pursuing his GED while being held in this case and maintained

employment as a factory worker and painter before he was incarcerated.

¶ 36   Defendant expressed his remorse in an allocution. He also mentioned that he was now

being treated for clinical depression and that the medication was working.

¶ 37   Noting that the sentencing range for first degree murder was 20 to 60 years’

imprisonment, and considering defendant’s age, lack of felony criminal history, factors in

aggravation, and factors in mitigation, the trial court sentenced defendant to 27 years’

imprisonment. On November 20, 2014, the court denied defendant’s motion to reconsider his

sentence.

¶ 38   Defendant appeals, arguing that his counsel was ineffective for failing to advance a

theory of second degree murder. Alternatively, defendant contends that his 27-year sentence for

first degree murder was excessive.

¶ 39   Second degree murder is not a lesser-included offense of first degree murder. People v.

Wilmington, 2013 IL 112938, ¶ 48. Rather, it is more accurately described as a lesser-mitigated

offense of first degree murder. Id. A defendant can only be found guilty of second degree murder

if the State has first proven all the elements of first degree murder. 720 ILCS 5/9-2(a), (c) (West

2010); Wilmington, 2013 IL 112938, ¶ 48. Then the defendant has the burden of proving a

mitigating factor by a preponderance of the evidence. 720 ILCS 5/9-2(c) (West 2010); People v.

Fort, 2017 IL 118966, ¶ 33. However, the burden remains on the State to prove beyond a

reasonable doubt each of the elements of first degree murder and, where relevant, the absence of

circumstances justifying or exonerating the killing. 720 ILCS 5/9-2(c) (West 2010).

¶ 40   There are two possible mitigating factors: an unreasonable belief that self-defense is



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justified or the presence of an intense passion resulting from serious provocation by the victim.

720 ILCS 5/9-2(a)(1), (a)(2) (West 2010). Illinois courts have held that serious provocation may

arise from substantial physical injury or substantial physical assault, mutual quarrel or combat,

illegal arrest, and adultery with the offender’s spouse. People v. Tijerina, 381 Ill. App. 3d 1024,

1031 (2008).

¶ 41   Defendant contends counsel was ineffective in failing to advance a second degree murder

theory as her chosen strategy was based on a misapprehension of the law, specifically that only

direct evidence of mitigating factors would support a second degree murder finding.

¶ 42   “To show ineffective assistance of counsel, a defendant must demonstrate that ‘his

attorney’s representation fell below an objective standard of reasonableness and that there is a

reasonable probability that, but for counsel’s errors, the result of the proceeding would have been

different.’ ” People v. Simpson, 2015 IL 116512, ¶ 35 (quoting People v. Patterson, 192 Ill. 2d

93, 107 (2000)). A defendant must satisfy both prongs of this test, and a failure to satisfy either

prong precludes a finding of ineffectiveness. Id. Reviewing courts measure counsel’s

performance by an objective standard of competence under prevailing professional norms.

People v. Spiller, 2016 IL App (1st) 133389, ¶ 36. To establish deficient performance, defendant

must overcome the strong presumption that the challenged action or inaction might have been the

product of sound trial strategy. Id.

¶ 43   Defendant’s ineffective assistance claim fails, as he is unable to show that his counsel’s

performance was deficient. It is nearly axiomatic that counsel’s choice of trial strategy is

“ ‘virtually unchallengeable’ and will generally not support an ineffective assistance of counsel

claim.” People v. Walton, 378 Ill. App. 3d 580, 589 (2007) (quoting People v. Palmer, 162 Ill. 2d

465, 476 (1994)). Furthermore, counsel’s decision to advance an all-or-nothing defense has been



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recognized as a valid trial strategy “ ‘and is generally not unreasonable unless that strategy is

based upon counsel’s misapprehension of the law.’ ” Spiller, 2016 IL App (1st) 133389, ¶ 39

(quoting Walton, 378 Ill. App. 3d at 589). This court has held that “counsel cannot be found

ineffective for failing to request that the trial court consider second degree murder, as the trial

court was empowered to consider this lesser offense regardless of counsel’s arguments.” Spiller,

2016 IL App (1st) 133389, ¶ 40.

¶ 44   Here, the trial court gave counsel multiple opportunities to clarify her theory of the case

and reevaluate her strategy of not asking the court to consider second degree murder. It even

continued the case so that counsel could confer with defendant about trial strategy. After

examining the case law and speaking with defendant, counsel decided that holding the State to its

burden of proof and arguing for a finding of not guilty was a valid trial strategy. She set out her

reasons for pursuing this trial strategy in great detail, maintaining that there was no direct

evidence that defendant laid his hands on Barnes, let alone pushed her out of a window. Counsel

argued that any scenario regarding what happened in the apartment was pure speculation and

thus insufficient to support a guilty finding.

¶ 45   Counsel correctly told the court that “you don’t even get to a second degree analysis until

and unless” the State proved first degree murder. Counsel argued the court, therefore, could not

find defendant guilty of first or second degree murder based on provocation as there was no

evidence that defendant caused Barnes’s death. On this record before us, we find that counsel’s

strategy was not based on a misapprehension of the law. See Spiller, 2016 IL App (1st) 133389,

¶ 40 (holding that counsel’s statement that “there is no compromise. There is no second degree in

this case” was not a misapprehension of the law, but an indication that he considered and

rejected a dual strategy). We find counsel’s defense was a valid trial strategy and her



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performance was not deficient. As defendant fails to meet the deficient performance prong of the

Strickland test, his claim of ineffective assistance fails.

¶ 46    Defendant also contends that his 27-year sentence for first degree murder was excessive

in light of his struggle with drug addiction, lack of felony convictions, and rehabilitative

potential. He also contends that the trial court erred by failing to consider evidence of Barnes’s

provocation and the financial impact on the state.

¶ 47    A trial court has broad discretionary powers in imposing a sentence, and its sentencing

decisions are entitled to great deference on review. People v. Alexander, 239 Ill. 2d 205, 212

(2010). This is because a trial court has a superior opportunity “to weigh such factors as the

defendant’s credibility, demeanor, general moral character, mentality, social environment, habits,

and age.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). As such, reviewing courts will not alter a

defendant’s sentence absent an abuse of discretion. Alexander, 239 Ill. 2d at 212. Our supreme

court has noted that a “ ‘reviewing court must not substitute its judgment for that of the trial

court merely because it would have weighed these factors differently.’ ” Id. at 213 (quoting

Stacey, 193 Ill. 2d at 209).

¶ 48    A sentence should reflect both the seriousness of the offense and the objective of

restoring the defendant to useful citizenship. Ill. Const. 1970, art. I, § 11; People v. McWilliams,

2015 IL App (1st) 130913, ¶ 27. The trial court is presumed to have considered all relevant

factors and any mitigation evidence (People v. Jackson, 2014 IL App (1st) 123258, ¶ 48), but has

no obligation to recite each factor and the weight it is given at a sentencing hearing. People v.

Wilson, 2016 IL App (1st) 141063, ¶11. “ ‘A sentence within statutory limits will not be deemed

excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly

disproportionate to the nature of the offense.’ ” People v. Brown, 2015 IL App (1st) 130048, ¶ 42



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(quoting People v. Fern, 189 Ill.2d 48, 54(1999)).

¶ 49   Here, defendant was convicted of first degree murder, an offense with a sentencing range

of 20 to 60 years’ imprisonment. 730 ILCS 5/5-4.5-20(a)(West 2010). The trial court sentenced

defendant to 27 years’ imprisonment. As the sentence is within the prescribed sentencing range,

it is therefore presumed to be proper. Brown, 2015 IL App (1st) 130048, ¶ 43.

¶ 50   In sentencing, contrary to defendant’s argument, the trial court expressly considered

defendant’s struggles with drug addiction, his lack of felony background, and his family and

community support system. The court then properly weighed these factors against the severity of

his crime and the “most violent death” of Cynthia Barnes.

¶ 51   Further, the court was presented with evidence of other criminal activity demonstrating

defendant’s history of violence against women, hearing from numerous witnesses the details of

his assaults on Ericka Jackson and a second, unnamed, female victim. See People v. Raney, 2014

IL App (4th) 130551, ¶43 (“ ‘[C]riminal conduct for which there has been no prosecution or

conviction may be considered in sentencing. Such evidence, however, should be presented by

witnesses who can be confronted and cross-examined, rather than by hearsay allegations in the

presentence report, and the defendant should have an opportunity to rebut the testimony.’ ”)

(quoting People v. Jackson, 149 Ill. 2d 540, 548 (1992). Although defendant had no prior felony

convictions, the extensive witness testimony at the sentencing hearing demonstrated that

defendant had previously displayed extremely violent behavior. As such, given defendant’s

background, we believe that the trial court’s imposition of a 27-year sentence for first degree

murder was not an abuse of discretion.

¶ 52   Finally, defendant asserts that the trial court failed to consider evidence of provocation

and the financial impact of defendant’s incarceration on the state. As noted above, a trial court is



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presumed to have considered all relevant factors in mitigation unless there is some indication to

the contrary. This presumption also applies to a court’s consideration of financial impact

statements. People v. Sauseda, 2016 IL App (1st) 140134, ¶ 22. Further, the court was aware of

the evidence of provocation, as demonstrated by its findings at trial that there had been “some

kind of quarrel” in the apartment. As defendant points to nothing in the trial record that indicates

the trial court did not consider evidence of provocation or the financial impact statement at

sentencing, we operate under the presumption that it did. Id.

¶ 53   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 54   Affirmed.




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