People v. Johnson

• Decision Date: 18 December 1990
• Docket Number: No. 2-89-0223,2-89-0223
• Citation: 564 N.E.2d 913,151 Ill.Dec. 458,206 Ill.App.3d 542
• Parties: , 151 Ill.Dec. 458 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 913

564 N.E.2d 913

206 Ill.App.3d 542, 151 Ill.Dec. 458

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie JOHNSON, Defendant-Appellant.

No. 2-89-0223.

Appellate Court of Illinois Second District.

Dec. 18, 1990.

G. Joseph Weller, Deputy Defender, David W. Devinger, Office of the State Appellate Defender, Elgin, for Willie Johnson.

Paul A. Logli, Winnebago County State's Atty., Rockford, William L. Browers, Deputy Director, David A. Bernhard, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice INGLIS delivered the opinion of the court:

Defendant, Willie Johnson, appeals the seven-year sentence of incarceration the trial court imposed upon him after he pleaded guilty to and the court convicted him of the offense of second degree murder (Ill.Rev.Stat.1989, ch. 38, par. 9-2(a)(2)). His sole contention on appeal is that the trial court abused its discretion in imposing the sentence because the court improperly considered, as aggravating factors, that defendant used a weapon in committing the crime and caused a death.

On December 12, 1988, defendant, whom the State originally charged with first degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a)(1)), pleaded guilty to second degree murder. As part of the plea negotiations, the parties agreed that the trial court itself would determine the appropriate sentence. After hearing the factual basis for the plea, which we summarize below, the court accepted the plea of guilty, convicted defendant of second degree murder and, after conducting a sentencing hearing, imposed the seven-year period of imprisonment. The court then denied defendant's motion to reconsider the sentence, and defendant filed a timely notice of appeal.

The incident that led to defendant's conviction and sentence took place in Rockford, Illinois, on August 13, 1988. That evening, David Berry, the murder victim, and his friends, Lavertis Coble and Michael Anderson, were gathered with other friends in a parking lot in front of a housing project. Defendant and two other individuals joined the group; an argument ensued among various individuals but eventually subsided. Shortly thereafter, Lee Lilly and Brian Simmons approached the gathering; Lilly said something to Anderson, and then both Lilly and Simmons punched Anderson in the face.

At that point various individuals commenced fighting while others ran. Lavertis Coble retrieved a .25 caliber handgun that belonged to David Berry, and Coble's friend, Chuckie Owens, began to chase defendant with a club. Defendant pulled out a .38 caliber revolver and pointed it at Owens. Both defendant and Coble then fired their handguns. One of the bullets from defendant's revolver struck David Berry, who was in close proximity to Coble, in the head and caused Berry's death, while one of the slugs from Coble's gun injured Lee Lilly.

According to the statement defendant gave to the police three days later, defendant believed Chuckie Owens was chasing him with a gun. When defendant heard gunshots and saw Coble possessing a gun, defendant shot in the direction of Coble to scare him.

Inasmuch as the gravamen of defendant's appellate argument is that the trial court considered two improper factors in aggravation, we deem it necessary to set forth a summary of the court's remarks during the sentencing hearing that took place on February 6, 1989, as well as the hearing held on February 10, 1989, to adjudicate defendant's motion to reconsider his sentence.

At the outset of the February 6 hearing, the court determined, over defendant's objection, that the State could present a "victim impact statement" (see generally People v. Miller (1989), 193 Ill.App.3d 918, 932-38, 142 Ill.Dec. 247, 552 N.E.2d 988; People v. Scott (1989), 180 Ill.App.3d 418, 424-25, 129 Ill.Dec. 348, 535 N.E.2d 1113) that David Berry's mother prepared. In reaching its decision to consider the impact statement, the court recognized that "in a homicide case where death is always a factor," the aggravating factor that defendant's conduct caused serious harm to another (Ill.Rev.Stat., 1988 Supp., ch. 38, par. 1005-5-3.2(a)(1)) is "pretty much encompassed in the offense itself." However, the court noted that it was appropriate to consider the effect the present offense had on the victim's family.

After hearing the testimony defendant presented in his behalf and the arguments of counsel, the court concluded that a sentence of probation would deprecate the seriousness of the offense and would be inconsistent with the ends of justice (Ill.Rev.Stat., 1988 Supp., ch. 38, par. 1005-6-1(a)(2)). The court stressed that a sentence in the penitentiary was necessary to deter others from committing the same crime (Ill.Rev.Stat., 1988 Supp., ch. 38, par. 1005-5-3.2(a)(7)) and noted that defendant had a history of prior delinquency (Ill.Rev.Stat., 1988 Supp., ch. 38, par. 1005-5-3.2(a)(3)). The presentence report reflects that defendant was adjudged a juvenile delinquent three times between 1983 and 1987 for committing the offenses of disorderly conduct, theft, and criminal damage to property.

The court mentioned that defendant did not intend to commit a murder but rather "got caught up in the situation" and that there was a big difference between the current offense and an intentional murder which the perpetrator facilitated by using a gun. Nonetheless, the court commented twice that defendant had carried a weapon, and the court placed significance on this fact. Emphasizing that defendant did not take advantage of prior opportunities to rehabilitate himself, the court determined that the minimum sentence of four years' imprisonment was inappropriate in light of defendant's prior record. The court then remarked that the offense in question involved a death and that a four-year term of incarceration was the minimum sentence the court could impose. The court then sentenced defendant to seven years' imprisonment in the Department of Corrections.

In considering and denying defendant's motion for reconsideration four days later, the court correctly pointed out that the range of imprisonment for second degree murder, which is a Class 1 felony (Ill Rev.Stat.1989, ch. 38, par. 9-2(d)), is a determinate term of not less than 4 and not more than 15 years (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-1(a)(4)). Observing that a defendant who did not have any prior record might receive a minimum sentence of incarceration, the court stressed that Willie Johnson did have a previous record. Although the trial judge stated that, in fixing an appropriate sentence, he had taken into consideration that defendant did not plan or contemplate the commission of this offense, the judge also remarked he had weighed the fact that defendant had carried a weapon and allowed himself to get involved in the current situation. Too, the court mentioned that it had evaluated the factors in mitigation and aggravation (Ill.Rev.Stat.1987, ch. 38, par. 1005-5-3.1; Ill.Rev.Stat., 1988 Supp., ch. 38, par. 1005-5-3.2) and, again, placed special emphasis on the need to deter others from committing a similar crime. Lastly, the court remarked that it had considered the seriousness of the offense, the taking of a life.

Defendant's contention that the court abused its discretion in imposing the seven-year sentence of imprisonment he received is premised primarily on the argument that the court below improperly considered two factors in aggravation--that defendant caused the death of the victim, David Berry, and employed a gun in committing the second degree murder. In this regard, defendant's argument is twofold. First, relying principally upon People v. Saldivar (1986), 113 Ill.2d 256, 100 Ill.Dec. 776, 497 N.E.2d 1138, and People v. Martin (1988), 119 Ill.2d 453, 116 Ill.Dec. 669, 519 N.E.2d 884, defendant maintains that, in applying in the context of a second degree murder the statutory aggravating factor that defendant's conduct caused serious harm (Ill.Rev.Stat., 1988 Supp., ch. 38, par. 1005-5-3.2(a)(1)), the trial court may not consider the death of the victim, because death is implicit in the offense itself. Second, placing sole reliance on People v. Alejos (1983), 97 Ill.2d 502, 74 Ill.Dec. 18, 455 N.E.2d 48, defendant asserts that the sentencing court may not consider, as a factor in aggravation in a prosecution for second degree murder, that defendant employed a weapon in perpetrating the crime. In a more general sense, defendant also argues that, absent the improper aggravating factors and based upon his potential for rehabilitation, his unfortunate background or poor social environment and his remorse for the death of Mr. Berry, he is entitled to receive a sentence not in excess of four years' imprisonment. Accordingly, he asks this court to exercise its authority pursuant to Supreme Court Rule 615(b)(4) (107 Ill.2d R. 615(b)(4)) and reduce his sentence or, in the alternative, to remand the cause to the trial court for a new sentencing hearing.

As defendant correctly reminds us, the current second degree murder statute is essentially the same as the former voluntary manslaughter law for the purpose of determining whether the trial court properly considered the two aggravating factors in question. (Compare Ill.Rev.Stat.1989, ch. 38, par. 9-2, with Ill.Rev.Stat.1985, ch. 38, par. 9-2; see also People v. Shumpert (1989), 126 Ill.2d 344, 351-52, 128 Ill.Dec. 18, 533 N.E.2d 1106; People v. Moore (1987), 159 Ill.App.3d 1070, 1074 n. 2, 111 Ill.Dec. 841, 513 N.E.2d 87.) Therefore, jurisprudence under the former statute is relevant and helpful to our consideration and resolution of the same legal issue in the context of the second degree murder enactment.

In addressing the argument that the court below improperly considered the death of David Berry as a factor in aggravation pursuant to section 5-5-3.2(a)(1) of the Unified Code of Corrections (Code) (Ill.Rev.Stat., 1988 Supp., ch. 38, par. 1005-5-3.2(a)(1)),...