2016 IL App (2d) 140357
No. 2-14-0357
Opinion filed May 9, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 12-CF-2614
)
KODY WALSH, ) Honorable
) John R. Truitt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices McLaren and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Kody Walsh, while seated in the Ford Explorer of Ebert Davison, a friend of
his, shot Lori Daniels in the back of the head. He then, at gunpoint, made Davison continue
driving; forced Davison out of the car once they arrived at Davison’s house in Beloit; led police on
a high-speed chase, taking a selfie while doing so; and shot at police after crashing Davison’s car
and while fleeing the scene. Based on these facts, a jury found defendant guilty of numerous
offenses, including first-degree murder (720 ILCS 5/9-1(a)(1) (West 2012)), and he was sentenced
to an aggregate term of 110 years’ imprisonment. On his murder conviction, the court sentenced
defendant to 55 years’ imprisonment and imposed an additional 45-year term based on the fact that
defendant personally discharged a firearm that caused Daniels’ death (firearm add-on) (see 730
2016 IL App (2d) 140357
ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)). Defendant moved the court to reconsider his sentence,
arguing that it was excessive, and the court denied the motion. In this timely appeal, defendant
argues that the court erred in imposing the 45-year firearm add-on, because (1) that term was based
on unrelated firearm offenses, not the murder of Daniels; and (2) the court had already considered
those offenses in assessing the 55-year sentence for the murder. For the reasons that follow, we
affirm.
¶2 I. BACKGROUND
¶3 At the sentencing hearing, the court stated that it considered the evidence presented at trial,
the presentence investigation report (PSI) and its addendum, the evidence presented at the
sentencing hearing, counsels’ arguments, defendant’s statement in allocution, and all of the
applicable factors in aggravation and mitigation. With regard to the factors in aggravation and
mitigation, the court noted that it would “comment on some.”
¶4 In mitigation, the court observed, “there isn’t much.” In fact, the only factor the court
mentioned was that defendant’s imprisonment would “entail excessive hardship to his
dependents,” including defendant’s five-year-old daughter.
¶5 In aggravation, the court noted, “the greatest factor in aggravation is not only some of the
charged and uncharged conduct that the Court heard testimony from various witnesses today but
the defendant’s history of prior delinquency or criminal activity.” The court continued “that that
factor, in and of itself, supports a sentence greater than the mandatory minimum, both with regard
to the sentence on first[-]degree murder, the 25 to life range for personally discharg[ing] a firearm
causing death,” and other convictions for which defendant was being sentenced.
¶6 The court then gave a chronological account of some of the crimes with which defendant
was involved. The court observed that defendant’s criminal activity began 3 months after he
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turned 13. At that time, he committed an aggravated battery, he was given probation, and his
probation was revoked when he failed to comply with numerous conditions of his probation.
During the next year or so, defendant was convicted of mob action, two aggravated batteries,
aggravated assault, and resisting a peace officer. He was given probation in those cases and again
failed to follow the conditions of probation.
¶7 Three months after defendant turned 18, he was convicted of domestic battery. During
that year, he also was convicted of aggravated unlawful use of a weapon, theft, and attempted
aggravated discharge of a firearm. When defendant was 21, he was convicted of another
domestic battery, and then, a little over one year later, defendant murdered Daniels. Regarding
that background, the court observed that “defendant’s been involved in the system involving
criminal activity *** for almost half of his entire life.”
¶8 The court then commented on the fact that, while in custody, defendant broke a sprinkler
head that was part of the jail’s fire-sprinkler system. Evidence presented at the sentencing
hearing revealed that, after defendant broke the sprinkler head, he was placed in a restraint chair
for security purposes. The court also noted that items related to the murder of Daniels were found
in the basement of the home of Destynee Joesten, defendant’s girlfriend. Evidence presented at
the sentencing hearing revealed that, several hours after Daniels was murdered, defendant went to
Joesten’s house with a partially full box of live ammunition. Defendant hid the box in Joesten’s
basement; drove off in Davison’s vehicle, which still contained Daniels’ body; and called Joesten
to say a prayer and express his remorse for Daniels’ death.
¶9 Thereafter, the court asserted:
“[T]he facts surrounding the shooting of the vehicle; although quite frankly, that
weapons[-]related offense and the recovery of the AK-47 with live ammunition are going
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to be factors which the Court is considering when imposing a sentence on the additional
allegation, 25 to life. For purposes of the sentencing on the murder, in and of itself, the
Court is considering the fact that the defendant has this prior criminal history.”
¶ 10 Evidence presented at the sentencing hearing shed light on what the “shooting of the
vehicle” and “recovery of the AK-47 with live ammunition” incidents were. The shooting
incident occurred in August 2008, when defendant was 18. Defendant, who was with his gang at
the time, shot six times at a car that contained two or three adults and a baby. Based on those
facts, defendant pleaded guilty to attempted aggravated discharge of a firearm and was sentenced
to four years’ imprisonment. 1 The AK-47 incident occurred one week after Daniels was killed.
At that time, authorities in Illinois were advised that defendant was apprehended in Memphis after
leading the police there on a vehicle chase. Recovered from the car that defendant was driving
was a Draco AK-47U and a 40-round magazine that was fully loaded with ammunition. The
AK-47 had been reported stolen in Rockford.
¶ 11 In imposing the 55-year sentence for murder, the court mentioned the “horrendous” facts
presented at trial, noting that this offense could be described only as “an evil, inexplicable, and
cowardly act of shooting *** Daniels.” The jury had found that defendant’s conduct was
exceptionally brutal, making him eligible for 20 years to life. Moreover, the court observed that it
needed to fashion a sentence that would protect the public from defendant and that it could do so
only by imposing a sentence that would ensure that defendant would never be released from
prison. In selecting a 45-year firearm add-on, the court reiterated that the “two weapons[-]related
offenses are the reason why the Court believes that a sentence more than the 25, *** as far as the
1
This is the same attempted aggravated discharge of a firearm that the court mentioned as
aggravating.
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additional allegation, is warranted.” At no point during the sentencing hearing did defendant take
issue with the 45-year firearm add-on.
¶ 12 Within 30 days after sentencing, defendant moved the court to reconsider his sentence. In
his motion, defendant asked the court to “reconsider the sentence of 110 years” and “reduce said
sentence pursuant to [section 5-8-1 of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1
(West 2012))].” In support of the motion, defendant simply claimed that his “sentence is
excessive in light of the nature and circumstances of the offense and history and character of the
defendant”; that he “had no previous history of adult criminal activity except as noted in the
[PSI]”; and that “the Court’s sentence failed to take into consideration the rehabilitative potential
of the Defendant[] and the statutory factors in mitigation.”
¶ 13 At the hearing on the motion, when the court asked defendant if there was “anything else
that [he] care[d] to speak to with regard to the motion,” defendant replied “[n]o” and asserted that
he “would just rely upon the arguments that were previously made” at the sentencing hearing.
After the State indicated that it, too, would rely on the arguments it presented at the sentencing
hearing, the court denied the motion, stating that it “appropriately considered the facts of the case,
all factors in aggravation and mitigation, and [it] gave them their—not only their consideration,
but their due weight.”
¶ 14 II. ANALYSIS
¶ 15 On appeal, defendant argues that the 45-year firearm add-on was improper, because, in
imposing that term, the court (1) considered two unrelated weapons offenses, not the facts
surrounding Daniels’ death, and (2) had already considered those two unrelated weapons offenses
in fashioning the 55-year sentence for murder, which amounted to an improper double
enhancement. After making these arguments, defendant briefly asserts that the issues are not
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forfeited and that, even if they are, this court should consider them under the plain-error rule.
Accordingly, we consider first whether the issues are properly before us.
¶ 16 It is well settled that, to preserve a claim of sentencing error, both a contemporaneous
objection and a written postsentencing motion raising the issue are required. People v. Bannister,
232 Ill. 2d 52, 76 (2008); People v. Ramirez, 2015 IL App (1st) 130022, ¶ 19; see also 730 ILCS
5/5-4.5-50(d) (West 2012) (“A defendant’s challenge to the correctness of a sentence or to any
aspect of the sentencing hearing shall be made by a written motion filed *** within 30 days
following the imposition of sentence.”). Here, defendant never objected to the 45-year firearm
add-on at the sentencing hearing or in his motion to reconsider, a fact that he admitted at oral
argument.
¶ 17 Nevertheless, recognizing now that the issues were not properly preserved, defendant asks
this court to consider his claims pursuant to the plain-error rule. Plain error is a limited and
narrow exception to the general forfeiture rule. People v. Hampton, 149 Ill. 2d 71, 100 (1992).
To obtain relief under the plain-error rule, a defendant must show that a clear or obvious error
occurred. People v. Hillier, 237 Ill. 2d 539, 545 (2010). If a clear or obvious error is identified,
a defendant may obtain relief if the error complained of meets either prong of the two-pronged
plain-error rule. Id. That is, “[i]n the sentencing context, a defendant must *** show either that
(1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious
as to deny the defendant a fair sentencing hearing.” Id.; see also Ramirez, 2015 IL App (1st)
130022, ¶ 21. In advancing a plain-error argument, “[t]he defendant bears the burden of
persuasion and the procedural default will be honored if the defendant fails to meet that burden.”
Ramirez, 2015 IL App (1st) 130022, ¶ 22. “[P]lain-error review is forfeited when a defendant
fails to present an argument on how either prong of the plain-error doctrine is satisfied.” Id.
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¶ 18 Here, although defendant’s two-sentence generic argument in support of why the
plain-error rule should be invoked certainly does not aid this court in any way in determining
whether the rule applies, and we caution defendant to be more thorough in the future, we will
consider whether error arose when the court imposed the 45-year firearm add-on. See People v.
Miller, 2014 IL App (2d) 120873, ¶ 17 (“[T]he first step in determining whether the plain-error
doctrine applies is to determine whether any reversible error occurred.”).
¶ 19 Turning to whether there was error, we must consider whether, in imposing a firearm
add-on, a court is limited to considering only the facts surrounding the offense. In resolving that
issue, we begin by reiterating that defendant was convicted of first-degree murder (720 ILCS
5/9-1(a)(1) (West 2012)). A defendant convicted of first-degree murder ordinarily faces a prison
sentence between 20 and 60 years. 730 ILCS 5/5-4.5-20(a)(1) (West 2012). However, Public
Act 91-404 amended the penalty provisions of several statutes, including the provisions for
first-degree murder, by adding what have been referred to as the “ ‘15/20/25-to-life’ ” provisions.
People v. Sharpe, 216 Ill. 2d 481, 484 (2005) (citing Pub. Act 91-404, § 5 (eff. Jan. 1, 2000)).
Under those provisions, a mandatory enhancement is added to a defendant’s sentence if the
defendant used a firearm in the commission of the offense. People v. Moss, 206 Ill. 2d 503, 506
(2003). The length of the enhancement depends on how the firearm was used. Id. For
example, a 15-year term shall be added if the defendant was merely armed with a firearm, while a
20-year term shall be added if the defendant personally discharged the firearm. 730 ILCS
5/5-8-1(a)(1)(d)(i), (ii) (West 2012).
¶ 20 Here, Public Act 91-404 increased the sentence defendant faced by amending section
5-8-1(a)(1)(d)(iii) of the Code, which provides:
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“(a) Except as otherwise provided in the statute defining the offense or in Article
4.5 of Chapter V, a sentence of imprisonment for a felony shall be a determinate sentence
set by the court under this Section, according to the following limitations:
(1) for first degree murder,
***
[(d)](iii) if, during the commission of the offense, the person
personally discharged a firearm that proximately caused great bodily harm,
permanent disability, permanent disfigurement, or death to another person,
25 years or up to a term of natural life shall be added to the term of
imprisonment imposed by the court.” 730 ILCS 5/5-8-1(a)(1)(d)(iii)
(West 2012).
Accordingly, because defendant discharged a firearm that caused Daniels’ death, he faced, in
addition to a sentence for first-degree murder, a mandatory term between 25 years and natural life
in prison.
¶ 21 Defendant takes no issue with the fact that he was subject to section 5-8-1(a)(1)(d)(iii) of
the Code. Rather, he challenges what evidence a court may consider in selecting a term within the
range of 25 years to natural life in prison. Specifically, defendant claims that, in imposing a
firearm add-on, the court may consider only the facts of the murder. Because the issue defendant
raises presents a pure question of law, our review is de novo. See McElwain v. Office of the
Illinois Secretary of State, 2015 IL 117170, ¶ 11.
¶ 22 In addressing the issue, we first construe section 5-8-1(a)(1)(d)(iii) of the Code. In
construing this provision of the Code, we must keep in mind the well-settled rules of statutory
construction. The primary objective in construing a statute is to ascertain and give effect to the
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legislature’s intent. People v. Martino, 2012 IL App (2d) 101244, ¶ 25. The surest and most
reliable indicator of this intent is the language of the statute itself. Id. When the language is
clear and unambiguous, we must apply the statute without resorting to any extrinsic aids of
construction. Id. Moreover, we must construe the statute to avoid rendering any part of it
meaningless or superfluous, and we cannot view words and phrases in isolation. Id. ¶ 26.
Rather, we must consider the words and phrases in light of other relevant provisions. Id. We
also may consider the consequences that would result from construing the statute one way or the
other, and, in doing so, we must presume that the legislature did not intend absurd, inconvenient,
or unjust results. Id.
¶ 23 The plain language of section 5-8-1(a)(1)(d)(iii) of the Code provides that, when a
defendant commits first-degree murder, the court shall impose, in addition to a sentence for the
murder conviction, a term between 25 years and life in prison if, during the commission of the
murder, the defendant discharged a firearm that proximately harmed or killed the victim.
Nowhere in the statute does it indicate that in imposing the firearm add-on the court may consider
only the facts surrounding the murder, and we will not read into it such a requirement. Id.
¶ 24 Moreover, it would be absurd to conclude that, in imposing a sentence for first-degree
murder, the trial court may consider any and all of the aggravating and mitigating sentencing
factors (see 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2012)), but that, in imposing the firearm add-on,
the court may consider only the facts surrounding the offense. The purpose of the firearm-add-on
provisions, which we may consider even though the statute is unambiguous (see Hathaway v.
Standard Mutual Insurance Co., 285 Ill. App. 3d 67, 71 (1996)), is “to promote public health and
safety, and to impose severe penalties that will deter the use of firearms in the commission of
felonies.” People v. Butler, 2013 IL App (1st) 120923, ¶ 36; see also Sharpe, 216 Ill. 2d at
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531-32. In our view, that objective is not satisfied if a court is limited to considering only the
facts surrounding the offense. Although such facts will certainly guide the court in selecting an
appropriate term within the range, consideration of other facts, such as the defendant’s use of
firearms in the past, also serves to meet the statute’s objective. Indeed, it would be illogical to
conclude that a defendant who has never used a firearm in the past should face the same firearm
add-on as a defendant convicted of the same crime who has a history of committing crimes with
firearms. In our view, giving the second defendant a longer firearm add-on better serves the
purpose of, among other things, protecting the public.
¶ 25 In saying that in imposing a firearm add-on a court may consider a fact like a defendant’s
prior use of weapons, we of course are in no way suggesting that such a fact is the only one that the
court may consider. Rather, the unique circumstances of each case and all of the applicable
sentencing factors, both in mitigation and aggravation, should guide the court in determining what
sentence to impose. Moreover, although we recognize, as have other courts, that confusion could
be avoided if courts were given explicit guidance in selecting a term within the firearm-add-on
range (see, e.g., Butler, 2013 IL App (1st) 120923, ¶ 42), we cannot say that, in the absence of such
guidance, we should limit the facts a court may consider. Any change in section
5-8-1(a)(1)(d)(iii) of the Code should come from the legislature, not the courts.
¶ 26 Citing Sharpe, Butler, and People v. Thompson, 2013 IL App (1st) 113105, defendant
argues that, “while the statute does not outright state that the judge should base the length of the
firearm enhancement on the case on which the defendant is being sentenced, the case law shows
that the basis of the sentence enhancement should be the ‘circumstances of each case’ and [that]
the law is intended to punish the conduct that occurs during the case for which the defendant is
being sentenced.” We believe that defendant has misconstrued what these cases say.
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¶ 27 None of the cases on which defendant relies addressed the issue raised here. Rather, in
each of those cases, the court was asked to decide whether the firearm-add-on provisions were
constitutional. In doing so, while it is true that the courts used terms such as “during the
commission of a serious felony” (Sharpe, 216 Ill. 2d at 531), “unique circumstances of each case”
(Butler, 2013 IL App (1st) 120923, ¶ 41), and “ ‘types of injuries’ ” (Thompson, 2013 IL App (1st)
113105, ¶ 120 (quoting Butler, 2013 IL App (1st) 120923, ¶ 41), the courts did not use such
phrases to say that, when a court imposes a firearm add-on, it is limited to considering the facts
surrounding the charged crime. Rather, the cases used these terms in discussing why the
firearm-add-on provisions were enacted, i.e., to address the general danger inherent when
defendants use firearms during the commission of crimes, and in no way did these courts seek to
limit what courts may consider in imposing firearm add-ons. Sharpe, 216 Ill. 2d at 531; Butler,
2013 IL App (1st) 120923, ¶ 41; Thompson, 2013 IL App (1st) 113105, ¶ 120.
¶ 28 Having concluded that a court may consider any relevant sentencing factors in imposing a
firearm add-on, we now consider defendant’s claim that it was improper for the court to consider
defendant’s prior bad acts in assessing both the 55-year sentence for first-degree murder and the
45-year firearm add-on. 2 Defendant claims that doing so amounted to an improper “double
enhancement.”
¶ 29 “Double enhancement occurs when a factor already used to enhance an offense or penalty
is reused to subject a defendant to a further enhanced offense or penalty.” People v. Thomas, 171
Ill. 2d 207, 223 (1996). The prohibition against double enhancements is a rule of statutory
2
Our review of the record reveals that the only prior bad act that the court might have
considered twice was the incident in which defendant shot at the car that contained two or three
adults and an infant. This technicality does not affect our analysis.
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construction. People v. Rissley, 165 Ill. 2d 364, 390 (1995). We review de novo whether there
has been a double enhancement. People v. Phelps, 211 Ill. 2d 1, 12 (2004).
¶ 30 Here, no double enhancement occurred. As defendant’s prior offenses were not elements
of first-degree murder, they did not expose him to the initial sentencing range of 20 to 60 years’
imprisonment. Further, they did not expose him to the firearm add-on of 25 years to life, which
instead was the product of his having killed Daniels. Thus, the trial court considered the prior
offenses only in exercising its discretion to select appropriate terms within those ranges. To the
extent that the court used the prior offenses a second time in selecting the firearm add-on, “this
‘second use’ of defendant’s prior [offenses] does not constitute an enhancement, because the
discretionary act of a sentencing court in fashioning a particular sentence tailored to the needs of
society and the defendant, within the available parameters, is a requisite part of every
individualized sentencing determination. [Citation.] The judicial exercise of this discretion, in
fashioning an appropriate sentence within the framework provided by the legislature, is not
properly understood as an ‘enhancement.’ ” Thomas, 171 Ill. 2d at 224-25. Consideration of
defendant’s prior offenses thus did not “enhance” his sentence.
¶ 31 III. CONCLUSION
¶ 32 For these reasons, the judgment of the circuit court of Winnebago County is affirmed. As
part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this
appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill. 2d 166, 179 (1978).
¶ 33 Affirmed.
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