People v. Hunter

2022 IL App (4th) 210602-U
NOTICE
This Order was filed under
FILED
December 1, 2022
Supreme Court Rule 23 and is NO. 4-21-0602
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
BRIAN HUNTER, ) No. 20CF216
Defendant-Appellant. )
) Honorable
) Jennifer Hartmann
) Bauknecht,
) Judge Presiding.

JUSTICE BRIDGES delivered the judgment of the court.
Justices Steigmann and Zenoff concurred in the judgment.

ORDER

¶1 Held: There was sufficient evidence to prove defendant guilty beyond a reasonable
doubt of armed violence, and the trial court did not abuse its discretion in
sentencing him to 20 years’ imprisonment on that count. However, we vacate
defendant’s conviction of possession of methamphetamine under the one-act,
one-crime rule. We also vacate defendant’s conviction of aggravated unlawful use
of a weapon because the portion of the statute under which defendant was charged
has been held unconstitutional. We therefore affirm in part and vacate in part.

¶2 Following a bench trial, defendant, Brian Hunter, was convicted of armed

violence (720 ILCS 5/33A-2(a) (West 2020); 720 ILCS 646/60 (West 2020)) (count I),

possession of a firearm with defaced identification marks (720 ILCS 5/24-5(b) (West 2020))

(count II), possession of methamphetamine (720 ILCS 646/60(a) (West 2020)) (count IV),

aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(2), (a)(3)(B) (West 2020)) (count

V), and unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2020)) (count
VI). The trial court sentenced him to 20 years’ imprisonment. On appeal, defendant argues that

he was not proven guilty of armed violence beyond a reasonable doubt. He alternatively argues

that his conviction of possession of methamphetamine should be vacated under the one-act,

one-crime rule; that his conviction of aggravated unlawful use of a weapon should be vacated

because the underlying statute for the offense was held unconstitutional in People v. Mosley,

2015 IL 115872; and that his 20-year sentence is excessive.

¶3 We conclude that defendant was proven guilty beyond a reasonable doubt of

armed violence but that his convictions of possession of methamphetamine and aggravated

unlawful use of a weapon should be vacated. We further conclude that the trial court did not

abuse its discretion in sentencing defendant to 20 years’ imprisonment. We therefore affirm in

part and vacate in part.

¶4 I. BACKGROUND

¶5 On August 31, 2020, defendant was charged in a six-count information with the

aforementioned counts as well as possession of a firearm without the requisite firearm owner’s

identification (FOID) card (430 ILCS 65/2(a)(1) (West 2020)) (count III).

¶6 Defendant’s bench trial took place on May 3, 2021. We summarize the testimony

of Matthew Howard of the Livingston County Sheriff’s Department. Howard was driving in

Streator on August 28, 2020, at about 4:30 p.m., when he noticed a silver BMW with California

plates and a cracked windshield. Howard followed the car to South Post Guns Store. He ran the

registration of the car, which came back to defendant. The Livingston County Sheriff’s

Department had previously received an e-mail from the Streator police to be on the lookout for

defendant and his vehicle, with information about him possessing methamphetamine and

firearms.

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¶7 Defendant went into the gun store for about 10 minutes, returned to his car for a

little while, retrieved a backpack, and went back into the store. Defendant was in the store for a

few minutes and then began walking east. Howard stopped defendant four or five blocks away,

and the recording from the squad car was played for the trial court.

¶8 The recording shows Howard asking defendant for his identification. Defendant

puts his backpack on the ground, walks a few feet towards Howard, and gives him his

identification. Howard says that he was going to stop defendant previously because the car’s

windshield was cracked. He also says that it was suspicious that defendant went into the gun

store twice and then left his vehicle in the parking lot. Deputy Sam Fitzpatrick arrives, and

defendant moves closer to his position, which is closer to the backpack. Howard goes back to his

squad car to check the identification. While they are speaking, defendant and Fitzpatrick walk

several yards away from the backpack. A police officer arrives and joins them. Howard then

arrests defendant for driving on a revoked license and handcuffs him. Defendant tells Howard

that there is a gun clip in his pocket and a gun in his backpack.

¶9 Deputy Howard testified that a search of defendant’s backpack revealed a Glock

handgun and a Springfield pistol, both with loaded magazines. The serial numbers on the Glock

were scratched off. The backpack also contained drug paraphernalia, an additional magazine, 50

rounds of ammunition, and multiple cell phones, one of which had what appeared to be

methamphetamine in the battery compartment.

¶ 10 Forensic testing showed that the drugs totaled 3.4 grams of methamphetamine.

¶ 11 Detective Zachary Benning of the Livingston County Sheriff’s Department

testified that he spoke to defendant in a recorded interview on September 9, 2020, after having

spoken to him two times prior. The recording was played in open court. In the interview,

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defendant admitted possessing the guns and methamphetamine, though he said that the cell

phone with the methamphetamine was in the car. Defendant stated that he had been living out of

his car in California and was using the Glock for protection. Defendant further stated that the

Springfield gun belonged to a friend, and defendant had been planning to return it to him.

¶ 12 The trial court found defendant guilty of all counts except possession of a firearm

without a FOID card. On the subject of aggravated unlawful use of a weapon, the trial court

noted that the evidence showed that there were two handguns, several magazines, ammunition,

and methamphetamine in the backpack that defendant was carrying with him, stating, “[N]ot

only did [defendant] have the weapon uncased in the bag, but the ammunition for that weapon

was immediately accessible from the bag.” Defendant said that there was methamphetamine in

the car, but there was also methamphetamine in the smoking pipes which were located in the

backpack with the weapons. To the extent that defendant’s statements conflicted with the

statements of law enforcement officers, the trial court found that the officers’ testimony was

more credible.

¶ 13 Defendant filed a motion for a new trial on June 7, 2021, arguing that the

evidence was insufficient and that the trial court improperly considered that the drug pipes were

found in the same bag as the guns, as the pipes were not tested for drugs. The trial court denied

the motion on June 24, 2021.

¶ 14 Defendant’s sentencing hearing took place on August 9, 2021. The trial court

stated as follows. In aggravation, defendant had a prior criminal record, which included driving

under the influence and unlawful use of a weapon. Here, the weapon was in close proximity to

methamphetamine, ammunition, and magazines. There was a threat of harm because “[w]hen

you are walking around completely high out of your mind with a weapon and ammunition, bad

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things can happen.” There was no actual violence here, but there was certainly a threat of harm

involved. Deterrence was also a strong factor. In mitigation, defendant had a drug habit, had

been living out of his car, and had returned to Illinois to reestablish a connection with his

daughter. The minimum sentence for armed violence was 15 years, but a minimum sentence was

not appropriate based on the aggravating factors. Rather, 20 years was a reasonable sentence, and

defendant was eligible for 50% good time credit plus another six months of good time credit.

The trial court imposed a sentence of five years’ imprisonment on counts II and IV, and three

years’ imprisonment on count V, to run concurrently. It stated that count VI was a misdemeanor

on which it would enter a conviction plus costs.

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 A. Sufficiency of the Evidence for Armed Violence Conviction

¶ 18 Defendant first argues that the State failed to prove beyond a reasonable doubt

that he was guilty of armed violence, where the evidence established that there was no imminent

threat of violence.

¶ 19 When examining the sufficiency of the evidence, we must determine whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). The trier of

fact has the responsibility to assess witnesses’ credibility, weigh their testimony, resolve

inconsistencies and conflicts in the evidence, and draw reasonable inferences from the evidence.

People v. Sutherland, 223 Ill. 2d 187, 242 (2006). We will not reverse a criminal conviction

based on insufficient evidence unless the evidence is so unreasonable, improbable, or

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unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Murray, 2019

IL 123289, ¶ 19.

¶ 20 A person commits armed violence when, while “armed with a dangerous

weapon,” he commits a felony, with certain exceptions not relevant here. 720 ILCS 5/33A-2(a)

(West 2020). A person is armed with a dangerous weapon if he or she “carries on or about his or

her person or is otherwise armed with a Category I, Category II, or Category III weapon.” 720

ILCS 5/33A-1(c)(1) (West 2020). A handgun is a category I weapon. 720 ILCS 5/33A-1(c)(2)

(West 2020). Our supreme court has defined “otherwise armed” to mean the person had

immediate access to or timely control over a weapon. People v. Condon, 148 Ill. 2d 96, 110

(1992). Defendant was charged with armed violence for knowingly possessing

methamphetamine while armed with a handgun.

¶ 21 The legislative findings of the armed violence statute state that the use of a

dangerous weapon in committing a felony creates a much greater threat to the public health,

safety, and general welfare than when a weapon is not used; “the use of a firearm greatly

facilitates the commission of a criminal offense because of the more lethal nature of a firearm

and the greater perceived threat produced in those confronted by a person wielding a firearm,”

including victims, bystanders, and “the law enforcement officers whose duty is to confront and

apprehend the armed suspect”; and the legislature had created greater penalties for felonies

committed while in possession of a firearm because it deems such acts more serious. 720 ILCS

5/33A-1(a) (West 2020).

¶ 22 Our courts have also discussed the reasons behind the armed violence statute. The

purpose of the armed violence statute is to deter felons from using dangerous weapons so as to

minimize the deadly consequences if a felony victim resists. People v. Smith, 191 Ill. 2d 408,

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411-12 (2000). That is, a “felon with a weapon at his or her disposal is forced to make a

spontaneous and often instantaneous decision to kill without time to reflect on the use of such

deadly force.” Condon, 148 Ill. 2d at 109. “The purpose of the armed-violence statute is to

minimize the potential for such violence by disarming felons, thus eliminating the need for them

to decide, in the heat of the moment, whether to resort to deadly force.” People v. Loggins, 2019

IL App (1st) 160482, ¶ 23.

¶ 23 Defendant cites Smith, 191 Ill. 2d at 408. There, the defendant dropped an

unloaded gun out of his apartment window as the police approached the building to execute a

search warrant on the defendant’s apartment. Id. at 410. The police recovered the gun outside

and found drugs inside the apartment. Id. The supreme court reversed the defendant’s conviction

of armed violence on the basis that he did not have immediate access to and timely control over

the gun when the police entered, as he had already dropped the gun out of the window. The court

stated that for the same reasons, the defendant did not have intent and capability to maintain

control over the weapon. Id. at 412. The court stated that:

“Permitting an armed violence conviction to stand against a felon such as

[the] defendant, who exhibited no propensity to violence and dropped the

unloaded gun out of the window as the police approached his apartment to search

for drugs, would not serve, but rather would frustrate, the statute’s purpose of

deterring criminals from involving themselves and others in potentially deadly

situations.” Id. at 412-13.

See also Condon, 148 Ill. 2d at 110 (reversing the defendant’s conviction of armed violence

where there were guns in the house but not on the defendant or in the kitchen where he was

found).

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¶ 24 Defendant contrasts Smith with People v. Harre, 155 Ill. 2d 392 (1993). In Harre,

the defendant was next to the passenger side door of a car, where the window was more than half

open. Id. at 395. There were two guns in the car’s front seat. The supreme court stated that the

defendant’s conviction of armed violence was supported by the testimony of two officers that the

guns were within the defendant’s immediate reach. Id. at 396. Further, the defendant had taken

two steps towards the car door and was parallel to it when he stopped due to an officer’s

command, such that he was just about to open the car door and have unrestricted access to the

weapons. Id. at 400-01. The supreme court rejected the defendant’s argument that he was not

guilty of armed violence because he did not reach for the guns. The court stated that “the

determination of whether a defendant is armed is not made at the moment of arrest,” but rather

that “armed violence occurs if a defendant commits a felony while having on or about his person

a dangerous weapon or if a defendant is otherwise armed.” (Emphases in original.) Id. at 401.

¶ 25 Defendant argues that in this case, there was no evidence that he intended to use a

weapon or that he had a propensity for violence. Defendant maintains that he was cooperative

with the officers and displayed no aggressive or threatening behavior. Defendant argues that,

most tellingly, he put the backpack on the ground when Howard first made contact with him and

then walked several yards away from the bag when Howard checked his identification.

Defendant argues that he also informed the officers that he had a weapon in his backpack as soon

as he was arrested for driving on a revoked license.

¶ 26 Defendant contends that, therefore, “the danger that the armed violence statute

seeks to curb was not present” (People v. Neylon, 327 Ill. App. 3d 300, 309 (2002)) in this case.

Defendant argues that as in Smith, he relieved himself of the weapons upon the approach of the

police. Defendant argues that the fact that the weapons were in a zipped bag is significant, as in

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People v. Shelato, 228 Ill. App. 3d 622, 624, 627 (1992) (insufficient evidence of armed violence

where the gun was in a zippered duffle bag, wrapped in a rag, and underneath 68 bags of

marijuana). Defendant asserts that he would have had to move his body, unzip the bag, and

rummage through the contents to access the guns and create a dangerous environment. Defendant

argues that the idea that he could have done so “under the watchful eye” of police officers

“simply defies common sense” (Shelato, 228 Ill. App. 3d at 628). Defendant maintains that such

a deliberate and drawn-out retrieval of a weapon is not the “spontaneous” and “instantaneous”

decision to use deadly force that lawmakers were concerned about in creating the armed violence

statute. See Condon, 148 Ill. 2d at 109.

¶ 27 Defendant additionally argues that he was not involved in a dangerous criminal

activity that the armed violence statute was intended to target. He argues that he was not a drug

dealer, the 3.4 grams of methamphetamine he possessed was sufficient only for personal use, and

the drug paraphernalia in his bag indicated that he was using the drugs himself. Defendant

maintains that it would not make sense to use the armed violence statute to punish an individual

for substance abuse when he posed no threat to the community. He notes that if he had been

carrying a bottle of liquor instead of methamphetamine, he could not even be charged with

armed violence.

¶ 28 The State argues that because defendant admitted to possessing both the

methamphetamine and the two firearms in his backpack that he was carrying on his person when

he was stopped by a police officer, the State presented sufficient evidence that defendant, while

armed with a dangerous handgun, committed the felony of possessing methamphetamine. The

State argues that although defendant asserts that he was several yards away from the backpack,

the dash camera shows that defendant had the backpack in his immediate possession at the

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beginning of the encounter and had the ability to immediately access the backpack and firearms

for several minutes before he was arrested.

¶ 29 We note that although defendant focuses on the lack of evidence in the case that

he intended to use a gun or that he had a propensity for violence, intent is not an element of the

armed violence statute. See 720 ILCS 5/33A-2 (West 2020). Rather, “it is the possibility of

violence, and not the defendant’s actual intent to commit or threaten violence, that is crucial.”

People v. Scott, 2011 IL App (2d) 100990, ¶ 20. A defendant may be found guilty of armed

violence even if the gun is unloaded and no ammunition is found in the gun or on the defendant’s

person. People v. Anderson, 364 Ill. App. 3d 528, 542 (2006); see also People v. Orsby, 286 Ill.

App. 3d 142, 149 (1996) (the statute does not require that a handgun be loaded to qualify as a

dangerous weapon).

¶ 30 Defendant also emphasizes that he put the backpack on the ground and moved

away from it, and that when he was arrested, he informed the officers that he had a weapon.

However, as the supreme court stated in Harre, 155 Ill. 2d at 401, “the determination of whether

a defendant is armed is not made at the moment of arrest.” Similarly, in Loggins, 2019 IL App

(1st) 160482, ¶ 42, the court stated that even if the defendant had distanced himself from the gun,

“it was too late for him to escape liability for armed violence.” The court stated that “[a]s long as

he was ‘otherwise armed’ at some point during his confrontation with the police, which he was,

he committed the offense—even if he abandoned the handgun soon after that.” (Emphasis in

original.) Id.; see also People v. Calloway, 2019 IL App (1st) 160983, ¶ 52. As Loggins

explained, the purpose of the armed violence statute is to deter felons from carrying weapons so

that there is no need for the felon to instantaneously decide whether to use deadly force, thereby

decreasing the potential for violence. Loggins, 2019 IL App (1st) 160482, ¶ 23.

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¶ 31 This case is distinguishable from Shelato, 228 Ill. App. 3d at 627. There, the gun

was wrapped in a rag and underneath 68 bags of drugs, so it was not immediately accessible to or

within the timely control of the defendant. This case is also inapposite to Smith because the

defendant in that case had dropped the gun out of the window and would not have been able to

access it “when the police entered.” Smith, 191 Ill. 2d at 412. Here, defendant was carrying the

backpack for about 15 seconds from the time Howard stopped the police car and was still

holding it when Howard approached him, and additionally defendant was within a few feet of the

bag for over two minutes afterwards. Defendant therefore had immediate access to or timely

control over the guns and was thus “otherwise armed” within the meaning of the armed violence

statute while committing the felony of possessing methamphetamine. Accordingly, there was

sufficient evidence to prove defendant guilty of armed violence beyond a reasonable doubt.

¶ 32 B. One-Act, One-Crime Rule

¶ 33 Defendant alternatively argues that his conviction of possession of

methamphetamine should be vacated under the one-act, one-crime rule enunciated in People v.

King, 66 Ill. 2d 551 (1977). Under this rule, multiple convictions are improper if they are based

on the exact same physical act. People v. Coats, 2018 IL 121926, ¶ 11. A violation of the

one-act, one-crime rule constitutes plain error and may be addressed for the first time on appeal.

Id. ¶ 10. Whether such a violation has occurred is a question of law that we review de novo. Id.

¶ 12.

¶ 34 Defendant argues that his convictions of armed violence and possession of

methamphetamine arose from the same physical act because possession of methamphetamine

was a critical element in both offenses. Defendant cites People v. Curry, 2018 IL App (1st)

152616, ¶ 28, where the reviewing court stated that the trial court erred in convicting the

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defendant of intent to deliver heroin and armed violence, as the two convictions arose out of the

same physical act and the drug conviction was a lesser-included offense of the armed violence

conviction. It therefore vacated the drug conviction under the one-act, one-crime rule. Id. ¶ 33.

¶ 35 The State concedes that defendant’s conviction of possession of

methamphetamine should be vacated pursuant to the one-act, one-crime doctrine, and we agree.

As in Curry, defendant’s possession of methamphetamine was an element of his conviction of

armed violence, and the two convictions arose out of the same physical act. We therefore vacate

defendant’s conviction of possession of methamphetamine, as well as the sentence for that

offense.

¶ 36 C. Aggravated Unlawful Use of a Weapon

¶ 37 Defendant argues that his conviction of aggravated unlawful use of a weapon, as

charged, should also be vacated because the underlying statute for the offense was held

unconstitutional. Defendant initially cites People v. Aguilar, 2013 IL 112116. There, our

supreme court examined a portion of the aggravated unlawful use of a weapon statute,

specifically the class 4 form of subsection 24-1.6(a)(1), (a)(3)(A), (d) of the Criminal Code (720

ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)). Aguilar, 2013 IL 112116, ¶ 15. That part of the

statute stated that a person commits aggravated unlawful use of a weapon if he or she knowingly

“carries on or about his or her person or in any vehicle or concealed on or about his or her person

except when on his or her land or in his or her abode or fixed place of business any pistol,

revolver, stun gun or taser or other firearm,” and “the firearm possessed was uncased, loaded and

immediately accessible at the time of the offense.” Id. Our supreme court held that the class 4

form of this portion of the statute was facially unconstitutional because it “categorically prohibits

the possession and use of an operable firearm for self-defense outside the home,” contrary to the

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second amendment right to keep and bear arms. Id. ¶ 20. In People v. Burns, 2015 IL 117387,

¶ 25, the supreme court expanded its holding in Aguilar and stated that the discussed portion of

the statute was facially unconstitutional without limitation to class 4 felonies.

¶ 38 Defendant additionally cites Mosley, 2015 IL 115872, ¶¶ 3, 25, in which the

supreme court, consistent with Aguilar, held that section 24-1.6(a)(2), (a)(3)(A) of the Criminal

Code (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)), which prohibited carrying an uncased,

loaded, and immediately accessible firearm on a public way (as compared to in a vehicle or one’s

person as in Aguilar), was also unconstitutional.

¶ 39 Defendant points out that he was convicted under section 24-1.6(a)(2), (a)(3)(B),

which bars possession of an unloaded gun and ammunition on a public way as opposed to the

loaded gun in a public way at issue in Mosley. Defendant argues that as subsection (a)(3)(A) is

unconstitutional, subsection (a)(3)(B) must also be unconstitutional, as it would be illogical to

conclude that the possession of a loaded gun is constitutionally protected but the possession of an

unloaded gun is not.

¶ 40 The State agrees with defendant’s reasoning and that his conviction of aggravated

unlawful use of a weapon pursuant to subsection (a)(3)(B) should be vacated. We agree as well.

We additionally note that in People v. Daniels, 2017 IL App (1st) 142130-B, ¶ 12, the court held

that Aguilar’s rationale extended to section 24-1.6(a)(2), (a)(3)(B) (720 ILCS 5/24-1.6(a)(2),

(a)(3)(B) (West 2004)), which is the same section at issue in this case. The Daniels court stated

that “[u]pholding a conviction under subsection (a)(3)(B) would illogically prohibit the

possession of an unloaded gun in the same situation where, under Aguilar, the possession of a

loaded gun is constitutionally protected.” (Emphases in original.) Id. “A conviction pursuant to a

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facially unconstitutional statute must be vacated.” Id. ¶ 14. We therefore vacate defendant’s

conviction of aggravated unlawful use of a weapon and its corresponding sentence.

¶ 41 D. Sentencing

¶ 42 Last, defendant argues that the trial court abused its discretion in sentencing him

to 20 years’ imprisonment, which is 5 years more than the minimum 15-year sentence.

Defendant argues both that the trial court considered improper aggravating factors and that the

sentence is excessive in light of the nature of the offenses and his minimal criminal history.

¶ 43 Regarding improper aggravating factors, defendant argues that the trial court had

the mistaken belief that the legislature wanted it to impose a harsher sentence because the

offense was non-probationary. Defendant highlights that the court stated that the lack of

probation as a sentencing option meant that the “legislature want[ed] [it] to take this crime,

armed violence, very seriously and give a stronger penalty than usual for most other offenses.”

Defendant argues that the trial court’s unsupported assumption about the legislature’s intent

makes little sense and leads to absurd results, as the minimum sentence could never be imposed

for any offenses which are non-probationary. Defendant maintains that the legislature’s intent to

impose a “stronger penalty” for armed violence is reflected by the fact that the minimum

sentence is 15 years.

¶ 44 Defendant argues that the trial court also considered as an improper aggravating

factor that his prior conviction of unlawful use of a weapon was a “violent offense” by “its own

nature.” Defendant argues that this is simply untrue considering that unlawful use of a weapon

on its own is strictly a victimless, possession offense. See 720 ILCS 5/24-1(a)(4) (West 2020).

¶ 45 Defendant recognizes that he did not preserve these alleged errors for review

because he did not include them in his motion to reconsider sentence (see People v. Enoch, 122

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Ill. 2d 176, 186 (1988)), but he argues that they constitute plain error or ineffective assistance of

counsel.

¶ 46 Defendant additionally argues that his sentence was excessive. He maintains that

the statute criminalizing armed violence was not intended to target nonviolent individuals such

as himself, as he was not about to engage in any dangerous criminal activity when the police

pulled him over and had only a small amount of drugs. Defendant notes that he was cooperative

during the police encounter and advised them about the guns when he was arrested. Defendant

argues that he had been crime-free for 10 years before this incident and that all of his prior

convictions (two misdemeanors for driving under the influence of alcohol from 2006 to 2010,

one misdemeanor for possession of cannabis from 2002, one felony for unlawful use of a weapon

from 1998, and one misdemeanor for consumption of alcohol by a minor from 1998) largely

involved substance abuse and consisted of victimless offenses. Defendant argues that this instant

offense was similar, and his unfortunate life circumstances explained why he turned to drugs.

Defendant points to his statement to the court that he had been employed as a hospital equipment

technician but lost work due to the pandemic; that he returned to Illinois to be with his daughter;

and that when he was not allowed to see his daughter, he became depressed and started hanging

out with “old friends with bad habits” and using methamphetamine. Defendant argues that

neither the facts of the offense nor his background warrants a sentence 5 years above the

minimum sentence of 15 years’ imprisonment.

¶ 47 A trial court has wide latitude in sentencing a defendant as long as it does not

ignore relevant mitigating factors or consider improper aggravating factors. People v. McGee,

2020 IL App (2d) 180998, ¶ 8. The weight to be given to these factors depends on the

circumstances of each case. People v. Ferguson, 2021 IL App (3d) 200041, ¶ 12. A reviewing

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court gives substantial deference to the trial court’s sentencing decision because the trial court

has observed the defendant and the proceedings and is therefore in a much better position to

consider the sentencing factors. People v. Brown, 2018 IL App (1st) 160924, ¶ 9. We therefore

accord great deference to a sentence within the appropriate sentencing range. People v. Colon,

2018 IL App (1st) 160120, ¶ 66. We will not disturb the trial court’s sentencing decision absent

an abuse of discretion, which occurs only where the sentence is greatly at variance with the law’s

spirit and purpose, or manifestly disproportionate to the nature of the offense. Brown, 2018 IL

App (1st) 160924, ¶ 9. We may not substitute our judgment for that of the trial court just because

we would have weighed sentencing factors differently. Colon, 2018 IL App (1st) 160120, ¶ 66.

Whether a trial court relied on an improper aggravating factor in sentencing is a question of law

that we review de novo. People v. Matute, 2020 IL App (2d) 170786, ¶ 53.

¶ 48 Defendant also invokes the plain error doctrine, which allows a reviewing court to

consider an unpreserved error where either (1) a clear error occurs and the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant, or (2) a

clear error occurs that is so serious that it affected the trial’s fairness and challenged the integrity

of the judicial process. People v. Sebby, 2017 IL 119445, ¶ 48. The first step in a plain error

analysis is to determine whether a clear or obvious error occurred. People v. Jackson, 2022 IL

127256, ¶ 21.

¶ 49 We first examine the alleged improper aggravating factors. “When we review a

sentence for an alleged error based upon the consideration of an improper factor in aggravation,

we consider the record as a whole and do not focus merely on a few words or statements from

the trial judge.” People v. Brown, 2019 IL App (5th) 160329, ¶ 18. We conclude that the record

as a whole shows that in mentioning a “stronger penalty,” the trial court was commenting on the

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legislature’s decision to make the crime non-probationary and have a 15-year minimum

sentence. The trial court stated:

“And here even though there are mitigating factors, this is not a minimum

sentence case, despite the fact that the minimum is 15 years which I recognize is a

very stiff sentence. So I do think given the aggravating factors in this case that the

sentence of 20 years as recommended by the State is a reasonable sentence.”

Accordingly, the trial court recognized that it could impose a 15-year sentence but stated that the

minimum sentence was not appropriate given the aggravating factors, and it ultimately agreed

with the State’s recommendation of a 20-year sentence.

¶ 50 As for defendant’s prior conviction of unlawful use of a weapon, defendant takes

issue with the trial court’s statement that “whenever you are talking about weapons, possession

of weapons without the appropriate FOID card and other documentation that’s needed that that is

by its own nature a violent offense. It’s a weapon.” In context, the trial court was commenting

that offenses with weapons create a threat of harm. The trial court was allowed to consider

defendant’s prior record as an aggravating factor (see 730 ILCS 5/5-5-3.2(a)(3) (West 2020)),

and it did not use the prior conviction at issue as an improper aggravating factor.

¶ 51 As we have found that the trial court did not consider any erroneous aggravating

factors, there can be no plain error (People v. Rodriguez, 2022 IL App (1st) 200315, ¶ 108

(stating where there is no error, there can be no plain error)) or ineffective assistance of counsel

for not raising an unmeritorious issue (People v. Sims, 2022 IL App (2d) 200391, ¶ 162).

¶ 52 Finally, we hold that the trial court did not abuse its discretion in sentencing

defendant to 20 years’ imprisonment. We have already concluded that there was sufficient

evidence to prove defendant guilty beyond a reasonable doubt of armed violence, despite his

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alleged lack of intent of violence and the fact that no violent actions took place. The trial court

determined that the minimum sentence of 15 years was not appropriate given defendant’s

criminal history, which included a weapons offense. The trial court also noted that in the specific

facts here, the weapons were in close proximity to methamphetamine, ammunition, and

magazines, which created the potential for defendant to have access to the weapons when he was

under the influence of drugs, leading to a threat of harm. The trial court further pointed to the

factor of deterrence. The trial court recognized the presence of various mitigating factors,

including defendant’s drug habit, that he had been living out of his car, and that he had returned

to Illinois to see his daughter. As the imposition of the 20-year sentence was in the trial court’s

decision and supported by the record, there is no basis to reverse the sentence on appeal.

¶ 53 III. CONCLUSION

¶ 54 For the reasons stated, we affirm in part and vacate in part the judgment of the

Livingston County circuit court.

¶ 55 Affirmed in part and vacated in part.

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