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People v. Wilson

Court of Appeals of Illinois, First District, Fifth Division

August 19, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DRASHUN WILSON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 12-CR-19490; the Hon. Thaddeus L. Wilson, Judge, presiding.

         Affirmed.

          Michael J. Pelletier, Patricia Mysza, and Meredith N. Baron, of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Tasha Marie Kelly, Kathryn A. Schierl, and Mary P. Needham, Assistant State's Attorneys, of counsel), for the People.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Gordon and Burke concurred in the judgment and opinion.

          OPINION

          LAMPKIN JUSTICE

         ¶ 1 Following a jury trial, defendant, Drashun Wilson, was found guilty of attempted first degree murder and aggravated battery with a firearm. The jury found that, during the attempted first degree murder, defendant personally discharged a firearm and proximately caused great bodily harm. Defendant was 17 years old at the time of the offense. He was subject to the 25-years-to-life firearm enhancement (720 ILCS 5/8-4(a), (c)(1)(D) (West 2012)) and was sentenced to the mandatory minimum 31 years' imprisonment. On appeal, defendant contends (1) the newly enacted Public Act 99-69 (eff. Jan. 1, 2016) has retroactive application and entitles him to remand for a resentencing hearing, (2) the exclusive jurisdiction statute violates the eighth amendment, and (3) the 25-year mandatory firearm enhancement and truth-in-sentencing provision violate the eighth amendment and proportionate penalties clause. Based on the following, we affirm.

         ¶ 2 FACTS

         ¶ 3 Briefly stated, the trial evidence demonstrated that, in the afternoon of September 23, 2012, defendant was with at least one other male near 59th Street and Wabash Avenue in Chicago, Illinois, when he raised a handgun and shot toward 59th Street. Defendant was wearing a blue Cubs jacket, a black skull cap, and blue jeans. At the time, Alvin Thomas was standing next to the alley adjacent to his apartment building located at 5927 South Wabash Avenue. Thomas observed the shooting. The State introduced video surveillance footage of the location and date in question. Thomas identified defendant as the individual on the video raising his hands and shooting and then turning and running down the alley.

         ¶ 4 Floyd Fulton also testified that he was walking near 59th Street and Wabash Avenue at the time in question. When Fulton arrived at the alley of 59th Street, he observed "some little kids playing" in the alley. Fulton then observed an individual point at him. According to Fulton, he heard "bang, bang, bang" and saw "a little flash, " so he ran down 59th Street toward Wabash Avenue. While running, Fulton felt something hot on his tongue and, after spitting an object out of his mouth, discovered that he was "bleeding compulsively." The police arrived minutes later and Fulton was transported to the hospital for treatment of a gunshot wound to the left cheek, which resulted in "comminuted fractures" of the middle and back corner of the sinus and skull bone.

         ¶ 5 Fulton was not able to identify the perpetrator of the offense, but Thomas positively identified defendant as the shooter during a show-up identification. Defendant was arrested and transported to the police station. A discharged bullet was recovered from the scene and defendant's hands tested positive for gunshot residue. Defendant later provided an incriminating police statement.

         ¶ 6 Assistant State's Attorney Sarah Karr testified that defendant agreed to provide a typed statement. In his statement, defendant provided that, around 2:30 p.m. on September 23, 2012, he was with some friends in the neighborhood. He did not possess a weapon at the time; however, while they were walking in an alley near 59th Street and Wabash Avenue, someone named "Inkey" handed him a loaded handgun. As defendant walked down the alley, he observed an individual wearing all black pass the alley and "then c[o]me back and [start] looking down the alley at [defendant] and the group of people he was with." According to the statement, defendant was instructed by his friends to shoot the individual. Defendant stated that he had never shot a gun prior to the date in question, so he used both hands and aimed at the individual. Defendant shot the gun four times. Defendant stated that the individual ran, as did everyone in defendant's group. Defendant ran down the alley toward Wabash Avenue, at which point "he just threw the gun and kept going."

         ¶ 7 Defendant testified at trial that the typed police statement was false, denying any involvement in the shooting. Defendant acknowledged that, on the date in question, he was wearing a Cubs jacket and black skull cap. Defendant additionally acknowledged that the individual in the surveillance video also wore a Cubs jacket and black skull cap, but he denied that the individual in the video was him.

         ¶ 8 As stated, the jury found defendant guilty of attempted first degree murder, during which he personally discharged a firearm and proximately caused great bodily harm, and aggravated battery with a firearm. In subsequently sentencing defendant to the statutory minimum of 31 years' imprisonment on the attempted first degree murder count (the aggravated battery with a firearm count merged therein), the trial court stated that it considered:

"the evidence at trial, the gravity of the offense, the presentence investigation report, the financial impact of incarceration, all evidence, information, and testimony in aggravation and mitigation, any substance abuse issues and treatment, the potential for rehabilitation, the possibility of sentencing alternatives, and all hearsay presented deemed relevant and reliable."

         This timely appeal followed.

         ¶ 9 ANALYSIS

         ¶ 10 I. Public Act 99-69

         ¶ 11 Defendant first contends he is entitled to have his case remanded to the trial court for a resentencing hearing pursuant to the recently enacted Public Act 99-69. More specifically, defendant argues that Public Act 99-69, which became effective on January 1, 2016, should be applied retroactively to his case because its effective date was after his sentencing but while his appeal was pending.

         ¶ 12 Public Act 99-69 provides:

"(a) On or after the effective date of this amendatory Act of the 99th General Assembly, when a person commits an offense and the person is under 18 years of age at the time of the commission of the offense, the court, at the sentencing hearing conducted under Section 5-4-1, shall consider the following additional factors in mitigation in determining the appropriate sentence:
(1) the person's age, impetuosity, and level of maturity at the time of the offense, including the ability to consider the risks and consequences of behavior, and the presence of ...

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