Court of Appeals of Illinois, First District, First Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 10 CR 16037. Honorable Arthur F. Hill, Jr., Judge Presiding.
Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, IL, (Alan D. Goldberg and James J. Morrissey, of counsel), for APPELLANT.
Anita Alvarez, State's Attorney, County of Cook, Richard J. Daley Center, Chicago, IL, (Alan J. Spellberg, Miles J. Keleher, Douglas P. Harvath and Lisanne Pugliese, of counsel), for APPELLEE.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.
[¶1] Defendant, Zachary Brown, a 16-year-old juvenile at the time of the offense, was tried as an adult pursuant to the mandatory transfer provision of the Juvenile Court Act of 1987. 705 ILCS 405/5-130(1)(a)(ii) (West 2010). A jury convicted him of aggravated battery with a firearm and three counts of attempted first degree murder. In one of the counts for attempted first degree murder, count IV, the jury found that he personally discharged a firearm that proximately caused great bodily harm. 720 ILCS 5/8-4(c)(1)(D) (West 2010). The circuit court merged defendant's convictions into count IV and sentenced him to 50 years' imprisonment, which consisted of a 25-year prison term for attempted first degree murder and a 25-year sentencing enhancement for personally discharging a firearm that proximately caused great bodily harm to another.
[¶2] Defendant raises the following issues for our review: (1) whether the State presented sufficient evidence to support the sentencing enhancement (720 ILCS 5/8-4(c)(1)(D) (West 2010)) he received based on the jury's finding that he personally discharged a firearm that caused great bodily harm; (2) whether the mandatory transfer provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2010)) is constitutionally valid; (3) alternatively, whether his sentence is excessive in light of his age, family support, education, and lack of a violent criminal background; and (4) whether his mittimus needs to be corrected.
[¶3] We hold the State presented sufficient evidence to support the 25-year sentencing enhancement imposed on defendant's conviction for attempted first degree murder by showing that defendant caused great bodily harm. 720 ILCS 5/8-4(c)(1)(D) (West 2010). Pursuant to our supreme court's recent decision in People v. Patterson, 2014 IL 115102, ¶ ¶ 88-111, 388 Ill.Dec. 834, 25 N.E.3d 526, we uphold the constitutionality of the mandatory transfer provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2010)). We hold the circuit court abused its discretion in sentencing defendant to 25 years' imprisonment for attempted first degree murder where the court, in determining the sentence, relied on speculative evidence and where defendant's sentence failed to satisfy the constitutional objective of restoring defendant to useful citizenship. Accordingly, we reduce defendant's sentence for attempted first degree murder to six years' imprisonment. Therefore, defendant's sentence is 6 years' imprisonment for attempted first degree murder, with a 25-year enhancement for personally discharging a firearm that proximately caused great bodily harm to another, for a total prison term of 31 years.
[¶5] The circuit court sentenced defendant on October 11, 2012. Defendant filed a motion to reconsider his sentence on November 2, 2012. The circuit court denied defendant's motion to reconsider his sentence on November 28, 2012. Defendant
timely filed his notice of appeal on the same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. Rs. 603, 606 (eff. Feb. 6, 2013).
[¶7] Defendant was charged by indictment with one count of aggravated battery with a firearm and four counts of attempted first degree murder. The State nol-prossed one of the attempted first degree murder counts, count V. Prior to trial, defendant acknowledged that he rejected the State's offer of an eight-year prison term in exchange for a plea of guilty.
[¶8] At trial, Pearl Colvin, a Pace bus driver, testified that on July 16, 2010, at approximately 4:47 p.m., she was boarding passengers at the 79th and Western Avenue bus terminal in Chicago. There were " at least 12" people on the bus. She noticed " one particular passenger," a young African-American male, " seemed to be nervous about something" and looked back and forth out the door while standing at the front of the bus at the luggage rack. A young African-American male with braids in his hair, wearing dark trousers and a white T-shirt, boarded the bus. Within seconds she heard four gunshots coming from behind her inside the bus and she bent down for safety. When she looked up, she did not see the male with the dark trousers and braided hair. She moved the bus to a safer location and saw that the passenger who had been standing nervously at the luggage rack at the front of the bus had been shot in the leg and was bleeding. She told authorities on the scene that she was not able to identify the shooter because she did not see his face. She confirmed that the bus had at least five cameras taking video footage of the bus which accurately depicted the events that occurred that day.
[¶9] Ian Roy, a college student, testified that at the time of the incident he was waiting at the bus terminal and noticed defendant wearing a white T-shirt and blue jeans standing by a vending machine approximately 25 feet away with a group of young men. Roy made eye contact with defendant. This caused him concern because he was not from the area and the group of young men looked at him in a " crazy" manner. Roy then boarded the bus and as he was walked toward the back of the bus he heard two gunshots. He tried to run to the back and exit the bus. He saw defendant at the front of the bus holding a gun and wearing a mask. He described defendant has having " dreads." Defendant had taken his T-shirt off and used it to cover his face. After unsuccessfully attempting to push the door open at the back of the bus he hid under a seat. He heard two more shots, looked up, and saw defendant standing over him with a gun. Roy described what happened next as follows:
Q. What happened then as [defendant] is standing over you?
A. He shoots two times. He's shooting. He tries to run off. When he runs off, I guess his gun jammed or something and he shot again. I saw that because I had peeked around the side of the chair.
Q. When did you peek around the side?
A. After I felt the gunshots, he shot, pow! Pow! And then he started to run off and I peeked around so I could see if I could get away or something and he's standing at the front and his gun jammed or something. He was playing with it.
Q. Is that when there were two more shots that went off?
A. Yes, sir. After he fixed it or whatever."
Roy had been shot in the left ankle and his right thigh. He did not see where defendant ran to after the shooting. He left the bus and tried to walk away but the police sat him down and placed him in an ambulance. Police brought ...