ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Brunner, 2012 IL App (4th) 100708

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

DAVID D. BRUNNER, Defendant-Appellant.

 District & No. Fourth District

Docket No. 4-10-0708

Filed

Rehearing denied

April 3, 2012

May 16, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s sentence to 55 years’ imprisonment for first degree murder

was upheld over his arguments that the evidence did not show that he

personally killed the victim and that he was abused and unwanted as a

child and had mental illnesses, since the jury could have concluded

beyond a reasonable doubt that defendant personally killed the victim in

the course of robbing her and taking her van, defendant’s claim that he

was convicted of first degree murder under a theory of accountability was

unpersuasive, and defendant’s mental or psychological impairment was

not inherently mitigating.

Decision Under 

Review

Appeal from the Circuit Court of Sangamon County, No. 06-CF-518; the

Hon. Peter C. Cavanagh, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Karen Munoz, and Martin J. Ryan, all of State

Appellate Defender’s Office, of Springfield, for appellant.

John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, Robert

J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE STEIGMANN delivered the judgment of the court, with

opinion.

Justices Pope and Cook concurred in the judgment and opinion.

OPINION

¶ 1 In May2010, a juryconvicted defendant, David D. Brunner, of four counts of first degree

murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2006)), robbery (720 ILCS 5/18-1(a)

(West 2006)), and possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2006)).

¶ 2 Following an August 2010 hearing, the trial court merged defendant’s first degree murder

convictions and sentenced him to the following concurrent prison sentences: 55 years for first

degree murder, 6 years for robbery, and 6 years for possession of a stolen vehicle.

¶ 3 Defendant appeals, arguing only that the trial court’s imposition of a 55-year prison

sentence was excessive. Specifically, defendant contends that the court abused its discretion

by imposing that sentence because (1) the evidence did not show that defendant personally

killed the victim and (2) defendant “was abused and unwanted as a child and has had

substantial and long-standing mental illnesses.” We disagree and affirm.

¶ 4 I. BACKGROUND

¶ 5 A. The State’s Charges

¶ 6 Shortly after the police discovered Judy Schermerhorn’s strangled body in her home in

April 2006, the State charged defendant as follows: (1) first degree murder in that defendant

intended to kill Schermerhorn (720 ILCS 5/9-1(a)(1) (West 2006)) (count I); (2) first degree

murder in that defendant knew that his acts would cause her death (720 ILCS 5/9-1(a)(1)

(West 2006)) (count II); (3) first degree murder in that defendant knew that his acts created

a strong probability of her death (720 ILCS 5/9-1(a)(2) (West 2006)) (count III); (4) first

degree murder in that while committing a forcible felony (robbery), defendant caused her

death (720 ILCS 5/9-1(a)(3) (West 2006)) (count IV); (5) robbery(720 ILCS 5/18-1(a)(West

2006)) (count V); and (6) possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West

2006)) (count VI).

-2-
¶ 7 B. Defendant’s Trial

¶ 8 Because defendant is not challenging the sufficiency of the evidence to sustain his

convictions following his May 2010 jury trial, the facts relevant to this appeal are as follows.

¶ 9 1. The Evidence Presented by the State

¶ 10 Megan Wanless testified that she was introduced to defendant in the earlymorning hours

of April 29, 2006, by defendant’s cousin, Terry Fairclough. Because defendant had crack

cocaine and cannabis, Wanless decided to “hang out” and “party” with him. Several hours

after driving to a lake to consume drugs, defendant drove to a local pawnshop where he sold

silver flatware that he retrieved from the car’s trunk. Thereafter, defendant drove to a home.

While in the driveway of that home, defendant told Wanless that two days earlier, he had an

argument with the owner of the home that ended when he strangled her to death. (Wanless

later identified an exhibit that depicted Schermerhorn’s home as the home she visited.)

¶ 11 Wanless entered the home with defendant, explaining that she did not believe defendant’s

story. Once inside, defendant searched for money and jewelry. Wanless followed defendant

into a bedroom and noticed a lump on the bed that she believed was a pile of blankets.

Defendant eventually found $30 in a checkbook. Defendant then drove Wanless to a motel

where he rented a room, and they consumed drugs. The next morning, defendant returned to

the home. As she sat in the car, Wanless later observed defendant leave the home, carrying

jewelry and “egg-shaped” ornaments. After selling jewelry to a pawnshop, defendant drove

Wanless to her friend’s home. After a short time there, defendant became upset because

Wanless would not show him the drugs she had received. As defendant left the home without

Wanless, he backed the rear end of the car into a pole, shifted the car into drive, and hit a

stop sign and a fence.

¶ 12 Police responded to a dispatch regarding defendant’s accident, and upon arriving,

observed defendant–who appeared unconscious–in the driver’s seat. A preliminary

investigation revealed that the car defendant had been driving was registered to

Schermerhorn but displayed stolen license plates. As police continued their investigation,

defendant exited the car and fled, but police quickly apprehended him. Paramedics later

transported defendant to a hospital.

¶ 13 Wanless gave the police defendant’s driver’s license, explaining that she had it because

defendant kept losing it during the two days she was with him. Wanless then asked if she

could retrieve her possessions from the car. When an officer opened the car’s trunk to

retrieve Megan’s poncho, he found two bags of jewelry, flatware, figurines, and

Schermerhorn’s driver’s license. Concerned that Schermerhorn may have been burglarized,

officers drove to the address on Schermerhorn’s license. After their knocks at the front door

went unanswered, officers entered the home through an unlocked window and found

Schermerhorn’s decomposingbodyon a bedroom mattress wrapped tightlyin blankets. After

an officer removed a portion of the blankets, he testified that Schermerhorn’s head was

wrapped in a plastic bag as if she was wearing a shower cap and that she had been gagged.

¶ 14 A forensic pathologist testified that (1) Schermerhorn’s hands and feet were separately

-3-
bound by cloth material; (2) an electrical cord and cloth material were wrapped around her

neck; (3) she was gagged by a piece of cloth that wrapped around her face, ending in a knot

located at the back of her head; and (4) her entire body was wrapped in layers of blankets and

bedding secured by electrical cords and a sash. The pathologist opined that Schermerhorn’s

death was caused by “ligature strangulation,” with the possibility that the plastic bag placed

over her head had contributed to her death by depriving her of oxygen.

¶ 15 The State elicited testimony from several witnesses that corroborated Wanless’s

testimony and showed that on April 28, 2006, defendant sold Fairclough a computer in

exchange for drugs. The State’s evidence also revealed that the computer defendant sold

belonged to Schermerhorn, and a deoxyribonucleic acid (DNA) analysis could not exclude

defendant as the contributor of DNA recovered from a sash used to secure a blanket to

Schermerhorn’s torso.

¶ 16 Thereafter, the trial court admitted three digital recordings ofinterviews police conducted

with defendant. In those interviews, defendant provided the police with differing

explanations regarding Schermerhorn’s death, and he did so in the following order: (1)

Schermerhorn had received threats from a man she hired who eventually stole her

prescription pills; (2) during late April 2006, defendant often stopped by Schermerhorn’s

home and each time that she was not there, he would steal her belongings–including a

computer–to support his drug habit; (3) defendant and his friend, “Lorenzo,” devised a plan

to rob Schermerhorn to cover his drug debts, which resulted in her unintentional death; and

(4) defendant strangled Schermerhorn and tied her up because she threatened to use her

organized-crime connections to harm his former girlfriend. (The digital recordings were

played for the jury.)

¶ 17 2. The Evidence Presented by Defendant

¶ 18 Defendant testified that he met Schermerhorn in February 2006 through his former

girlfriend, who cleaned Schermerhorn’s home. Schermerhorn worked from home, selling

cosmetic products, and planned to sell jewelry over the Internet. Over the next two months,

defendant became friends with Schermerhorn, assisting her by performing landscaping and

home maintenance jobs. On April 27, 2006, Schermerhorn told defendant that a large amount

of her jewelry was missing. Defendant admitted to her that he took the jewelry. To make

amends, defendant stated that he entered into an agreement with Schermerhorn to defraud

her homeowner’s insurance provider byclaiming that she had been robbed. Before defendant

left Schermerhorn’s home to return a van he borrowed from his cousin, Joey Brunner, she

insisted that he return that night so that they could finalize their plans.

¶ 19 Aftersmoking crack cocaine with Joey, defendant and Joey returned to Schermerhorn’s

home where they finalized a plan to tie Schermerhorn up, ransack her home, and

anonymously report the burglary to the police. Defendant would then sell the stolen items out

of state and provide Schermerhorn a portion of the proceeds to financially support her until

her insurance check arrived. Defendant stated that after Schermerhorn agreed with the plan,

he started rummaging through her home while Joey tied her up. A short time later, defendant

informed Schermerhorn that they were leaving and she responded with a “muffled” sound.

-4-
¶ 20 Defendant recounted that as he drove away, Joey “flipped out” unexpectedly, and begged

him to forget about reporting the robbery because Joey thought he may have killed

Schermerhorn when he tied her up. Instead of calling 9-1-1, defendant drove Joey back to his

home, returned to check on Schermerhorn, and confirmed that she was dead. Defendant then

wrapped Schermerhorn’s body in blankets to prevent her dog from “feeding” on her body.

¶ 21 Defendant explained that initially, he did not want to implicate Joey because he was

“family” but after “sobering up” and “realizing exactly what just happened,” he decided that

“it’s not fair to [Schermerhorn], to have who really killed her runnin[g] around.” Defendant

also (1) claimed that his videotaped explanations were lies and (2) acknowledged that he

continued stealing from Schermerhorn’s home after her death.

¶ 22 3. The Trial Court’s Instruction to the Jury on Accountability

¶ 23 In addition to the jury instructions the trial court provided regarding the propositions the

State was mandated to prove beyond a reasonable doubt to sustain guilty verdicts on the

counts charged, the court also instructed the jury on Illinois Pattern Jury Instructions,

Criminal, No. 5.03A (4th ed. 2000), entitled, “Accountability–FelonyMurder.” Specifically,

the court informed the jury as follows:

“To sustain the charge of first degree murder, it is not necessary for the State to show

that it was or may have been the original intent of the defendant or one for whose

conduct he is legally responsible to kill the deceased, *** Schermerhorn.

It is sufficient if the jury believes from the evidence beyond a reasonable doubt that

the defendant or one for whose conduct he is legally responsible, combined to do an

unlawful act, such as to commit Robbery, and that the deceased was killed by one of the

parties committing that unlawful act.”

¶ 24 4. The Jury’s Verdict

¶ 25 On this evidence, the jury returned guilty verdicts on all six counts.

¶ 26 C. Defendant’s Sentencing Hearing

¶ 27 1. The Evidence Presented by the State

¶ 28 At defendant’s August 2010 sentencing hearing, a retired police officer testified that in

January 1992, defendant stabbed Kenneth Logan–a person he had known for about a

year–twice in the stomach. In March 1992, defendant pleaded guilty to aggravated battery

and was later sentenced to 30 months’ probation.

¶ 29 Detective Ryan Simms, the officer who investigated Schermerhorn’s death, testified that

in August 2006, defendant’s cousin, Nicole Meredith, provided him a letter that defendant

wrote to her. In his letter, defendant asked Meredith to contact his lawyer to confirm a story

he heard while in jail that Joey bragged to Meredith how Joey had murdered Schermerhorn.

The letter provided a detailed account of the story Joey purportedly told Meredith regarding

Schermerhorn’s death. (Defendant’s written account of Joey’s admission mirrored his May

2010 trial testimony.) Defendant also requested that Meredith not discuss his letter with

-5-
anyone but his lawyer and to destroy the letter after she finished reading it. Simms also

described the content of a second letter defendant wrote to Meredith in July 2010, in which

defendant expressed his rage upon learning that Meredith provided Simms the August 2006

letter. (Simms had earlier read defendant’s August 2006 and July 2010 letters to the jury, and

the trial court later admitted those letters into evidence.)

¶ 30 Defendant’s August 2010 presentence investigation report (PSI) listed the following

felony convictions, which were in addition to defendant’s 1992 conviction for aggravated

battery: (1) in March 2000, four years in prison for three separate felony theft convictions;

(2) in July 2002, three years in prison for felony theft; and (3) in May 2004, 4 1/2 years in

prison for theft by deception.

¶ 31 Defendant’s PSI also provided the following synopsis of his “mental or emotional”

condition:

“The defendant has had a psychiatric history with conduct disorders, problems as an

adolescent[,] and a continuous issue with depression. His history of depression has

caused sleep disturbances and past suicidal thoughts. He was first admitted to a

psychiatric hospital at approximately age 12 or 13 *** for behavioral problems. At

approximately 16 or 17, the defendant was again hospitalized *** for overdosing on

[a]spirin due to being very depressed. On February 1, 1998, the defendant *** received

a diagnosis for a Major Depressive disorder with substance abuse problems. To date, the

defendant reported that he currently takes Wellbutrin for his depression and has received

approximately 3 months of counseling for depression while in custody.”

¶ 32 2. The Evidence Presented by Defendant

¶ 33 The trial court admitted a forensic psychiatric evaluation conducted byTerry M. Killian,

clinical assistant professor of psychiatry at Southern Illinois University School of Medicine.

Killian’s “principal diagnosis” was that defendant suffered from chronic and severe cocaine

dependency. In his written evaluation, Killian recommended to the court that defendant’s

“life has been significantly disrupted by many things[,] which should be kept in mind in

disposition [sic] of this case.” Killian suggested that the court take into account the following

“mitigation issues”: (1) the abuse and neglect defendant suffered during his childhood, (2)

defendant’s undiagnosed attention deficit hyperactivity disorder, (3) defendant’s lifetime

history of depression, (4) defendant’s mild post-traumatic stress disorder, (5) defendant’s

severe and chronic cocaine dependence, and (6) defendant’s severe impairment at the time

of the crime.

¶ 34 3. The Sentenced Imposed by the Trial Court

¶ 35 At the sentencing hearing, the trial court stated that it had considered (1) the evidence

presented at defendant’s May 2010 trial, (2) the PSI, (3) the victim-impact statements, (4)

the evidence and exhibits presented at the sentencing hearing, and (5) the parties’ arguments.

In addition, the court noted that it had carefully considered Killian’s psychiatric report

regarding defendant’s childhood, abuse, and depression. The court then stated the following:

-6-
“[The court] note[s] that it was argued that the Defendant was very clearly given a

chance, but it is clear from the Defendant’s statement that *** Schermerhorn gave the

Defendant *** more than one chance, and in fact, *** the jury found that it was clear that

*** you were driven by an addiction, in that in your time of need, time of desperation,

you went straight over to [Schermerhorn’s] house to seek out help, and she was the one

person, the one friend *** you thought might still be there for you, who might potentially

help you. What’s clear is that when you did go to *** Schermerhorn’s house, the door

was always open, you’ll recall saying. [Despite] her response ***, you did turn on her,

and you took her life. The jury had found that, and you then proceeded to systematically

loot her home and drive around in her car over the next couple of days as if these were

your items and your car, and that absolutely nothing was wrong, as *** Schermerhorn

lay dead in her own bed. So that’s what was proved at trial, and [Schermerhorn] was the

one person who admittedly gave you a chance.”

Thereafter, the court imposed the following concurrent prison sentences: 55 years for first

degree murder (count I), 6 years for robbery, and 6 years for possession of a stolen vehicle.

(The court did not sentence defendant on count II, III, or IV, finding that those counts had

merged into his conviction on count I.)

¶ 36 This appeal followed.

¶ 37 II. THE TRIAL COURT’S SENTENCE

¶ 38 Defendant appeals, arguing only that the trial court’s imposition of a 55-year prison

sentence was excessive. Specifically, defendant contends that the court abused its discretion

by imposing that sentence because (1) the evidence did not show that defendant personally

killed Schermerhorn and (2) defendant “was abused and unwanted as a child and has had

substantial and long-standing mental illnesses.” Defendant maintains that the court did not

sufficiently consider these contentions and that they constitute mitigating factors against the

imposition of such a harsh sentence. We address defendant’s contentions in turn.

¶ 39 A. The Standard of Review

¶ 40 The sentence imposed by a trial court is granted great deference because the court is

generally in a better position than a reviewing court to weigh factors such as the defendant’s

credibility, demeanor, general moral character, mentality, social environment, and habits.

People v. Calabrese, 398 Ill. App. 3d 98, 126, 924 N.E.2d 6, 29 (2010). This deference

provides a trial court the latitude to impose a sentence that falls within the statutory range

prescribed for the offense. People v. Perkins, 408 Ill. App. 3d 752, 763, 945 N.E.2d 1228,

1238 (2011). A sentence that is within statutory limits is excessive and, thus, an abuse of the

court’s discretion only when it is greatly at variance with the spirit and purpose of the law,

or manifestly disproportionate to the nature of the offense. See People v. Luna, 409 Ill. App.

3d 45, 52, 946 N.E.2d 1102, 1110 (2011).

-7-
¶ 41 B. The Statutory Aggravating and Mitigating Factors

¶ 42 1. The Statutory Mitigating Factors

¶ 43 Section 5-5-3.1 of the Unified Code of Corrections (Unified Code), entitled, “Factors in

Mitigation,” provides the following sentencing guidance:

“(a) The following grounds shall be accorded weight in favor of withholding or

minimizing a sentence of imprisonment:

(1) The defendant’s criminal conduct neither caused nor threatened serious

physical harm to another.

(2) The defendant did not contemplate that his criminal conduct would cause or

threaten serious physical harm to another.

(3) The defendant acted under a strong provocation.

(4) There were substantial grounds tending to excuse or justify the defendant’s

criminal conduct, though failing to establish a defense.

(5) The defendant’s criminal conduct was induced or facilitated bysomeone other

than the defendant.

(6) The defendant has compensated or will compensate the victim of his criminal

conduct for the damage or injury that he sustained.

(7) The defendant has no history of prior delinquency or criminal activity or has

led a law-abiding life for a substantial period of time before the commission of the

present crime.

(8) The defendant’s criminal conduct was the result of circumstances unlikely to

recur.

(9) The character and attitudes of the defendant indicate that he is unlikely to

commit another crime.

(10) The defendant is particularly likely to comply with the terms of a period of

probation.

(11) The imprisonment of the defendant would entail excessive hardship to his

dependents.

(12) The imprisonment of the defendant would endanger his or her medical

condition.

(13) The defendant was mentally retarded as defined in Section 5-1-13 of [the

Unified] Code.

(b) If the court, having due regard for the character of the offender, the nature and

circumstances of the offense and the public interest finds that a sentence of imprisonment

is the most appropriate disposition of the offender, or where other provisions of this Code

mandate the imprisonment of the offender, the grounds listed in paragraph (a) of this

subsection shall be considered as factors in mitigation of the term imposed.” 730 ILCS

5/5-5-3.1 (West 2006).

Thus, section 5-5-3.1 of the Unified Code requires a trial court to consider the 13

aforementioned mitigating factors listed, if present, in mitigation.

-8-
¶ 44 2. The Statutory Aggravating Factors

¶ 45 Section 5-5-3.2(a) of the Unified Code, entitled “Factors in Aggravation,” sets forth 22

factors that a trial court is required to consider, if present, in aggravation. In particular,

section 5-5-3.2(a) provides, in part, the following:

“(a) The following factors shall be accorded weight in favor of imposing a term of

imprisonment or may be considered by the court as reasons to impose a more severe

sentence under Section 5-8-1:

(1) the defendant’s conduct caused or threatened serious harm;

(2) the defendant received compensation for committing the offense;

(3) the defendant has a history of prior delinquency or criminal activity;

(4) the defendant, by the duties of his office or by his position, was obliged to

prevent the particular offense committed or to bring the offenders committing it to

justice;

(5) the defendant held public office at the time of the offense, and the offense

related to the conduct of that office;

(6)the defendant utilized his professional reputation or position in the community

to commit the offense, or to afford him an easier means of committing it;

(7) the sentence is necessary to deter others from committing the same crime;

* * *

(12) the defendant was convicted of a felony committed while he was released

on bail *** pending trial for a prior felony and was convicted of such prior felony,

or the defendant was convicted of a felony committed while he was serving a period

of *** mandatory supervised release ***;

(13) the defendant committed or attempted to commit a felony while he was

wearing a bulletproof vest.” 730 ILCS 5/5-5-3.2(a) (West 2006).

The majorityof the remaining 13 statutoryaggravating factors listed under section 5-5-3.2(a)

of the Unified Code pertain either to the (1) age, medical condition, race, gender, or

employment status of the victim; (2) the defendant’s personal or professional relationship to

the victim; or (3) where the crime was committed, which includes, in part, churches, nursing

homes, or day-care facilities. 730 ILCS 5/5-5-3.2(a) (West 2006).

¶ 46 C. Defendant’s Excessive-Sentence Claims

¶ 47 1. Defendant’s Claim That the Evidence Did Not Show

That He Personally Killed the Victim

¶ 48 As previously stated, defendant contends that the trial court abused its discretion by

imposing a 55-year sentence because the evidence did not show that defendant personally

killed the victim. Specifically, defendant asserts that the absence of direct evidence that he

planned to kill Schermerhorn or personally kill her was a mitigating factor that the court did

not sufficiently consider and militated against the imposition of such a harsh sentence. We

-9-
reject defendant’s contention.

¶ 49 Although the plain language of sections 5-5-3.1 and 5-5-3.2(a) of the Unified Code

mandates that, if present, the trial court must consider the enumerated 13 mitigating and 22

aggravating factors, respectively, in determining a sentence of imprisonment, those factors

are not an exclusive listing that prohibits a court from considering any other relevant

sentencing factor.

¶ 50 In People v. Ward, 113 Ill. 2d 516, 525, 499 N.E.2d 422, 425 (1986), the supreme court

rejected the defendant’s argument that the trial court erred by considering his claims of

innocence as an aggravating factor. In so doing, it provided the following guidance:

“The imposition of a criminal sentence should not be reduced to a litany of accepted

and approved but meaningless words and phrases. In determining the appropriate

sentence, the trial judge must consider all matters reflecting upon the defendant’s

personality, propensities, purposes, tendencies, and indeed every aspect of his life

relevant to the sentencing proceeding. [Citations.] In some instances and under certain

factual circumstances, a continued protestation of innocence and a lack of remorse may

convey a strong message to the trial judge that the defendant is an unmitigated liar and

at continued war with society. Such impressions garnered by the trial judge from the

entire proceeding are properfactors to consider in imposing sentence. This court has held

that it was not improper for the trial court to consider its perception of the defendant’s

perjury in fixing the penalty to be imposed. [Citation.] We believe that the impact of the

defendant’s testimony and statement upon the trial judge, assessed in light of the other

information revealed during the course of the trial and the sentencing hearing, can hardly

be said to be irrelevant to an appraisal of the defendant’s character and his prospects for

rehabilitation.” (Emphasis added.) Ward, 113 Ill. 2d at 527-28, 499 N.E.2d at 426.

See People v. Dowding, 388 Ill. App. 3d 936, 943, 904 N.E.2d 1022, 1029 (2009) (in

determining the appropriate sentence to impose, a trial court may consider as an aggravating

factor the degree of harm to the victim, the manner in which the victim’s death was brought

about, as well as the seriousness, nature, and circumstances of the offense); Perkins, 408 Ill.

App. 3d at 763, 945 N.E.2d at 1238 (citing Ward approvingly for the proposition that a trial

court should not arbitrarily consider a claim of innocence as an aggravating sentencing factor

but under other circumstances, a defendant’s lack of remorse or denial of guilt may be

properly considered by the court with regard to the defendant’s prospects for rehabilitation).

¶ 51 Defendant concedes that he is accountable for Schermerhorn’s murder, but claims that

“who actually killed [Schermerhorn] has relevance to the sentence imposed.” Defendant

posits further, as follows:

“The harsh 55-year prison sentence imposed *** would have been appropriate had

[defendant] personally killed (or planned to kill) *** [Schermerhorn]. However, there

is no suggestion in the record that [defendant] personally killed her, despite the court’s

erroneous finding at sentencing that [defendant] took [Schermerhorn’s] life.”

¶ 52 Defendant’s analysis regarding the sentence the trial court imposed is consistent with

Ward. We agree that the court could have considered–as an aggravating sentencing

factor–that defendant, a lifetime drug abuser, had callously murdered Schermerhorn, stolen

-10-
her possessions to support his drug habit, and then continually lied about the circumstances

surrounding her death. Indeed, the legislature had addressed this issue, albeit in the context

of the death penalty statute under section 9-1(b)(6)(a)(i) of the Criminal Code of 1961

(Criminal Code), which stated that a defendant who had been found guilty of first degree

murder may be sentenced to death if the murdered individual was killed in the course of

another felony if the murdered individual “was actually killed by the defendant.” 720 ILCS

5/9-1(b)(6)(a)(i) (West 2006). We note that the list of death-penalty-eligibility factors was

listed in section 9-1(b) of the Criminal Code under the heading “Aggravating Factors.” 720

ILCS 5/9-1(b) (West 2006).

¶ 53 First, we find unpersuasive defendant’s underlying claim that the jury found him guilty

of Schermerhorn’s death solely under the theory of accountability. On this record, the jury

could easily have drawn the inferences necessary to conclude beyond a reasonable doubt that

defendant personally killed Schermerhorn. See People v. Washington, 2012 IL 110283, ¶ 60

(the jury’s function is to assess witness credibility, weigh the evidence, resolve conflicting

evidence, and draw reasonable inferences therefrom).

¶ 54 More significantly, the fatal flaw in defendant’s argument that the trial court erred by

imposing a 55-year sentence is his proposed treatment of the absence of an aggravating

factor. Even if we were to accept defendant’s claim that the jury convicted him of first degree

murder under an accountability theory, which we have already concluded we do not, we

reject defendant’s suggestion that the absence of evidence that he personally killed

Schermerhorn–in other words, the absence of a possible aggravating factor–must be

considered by the court as a mitigating factor, resulting in the downward departure from the

sentence the court would have otherwise imposed.

¶ 55 2. Defendant’s Claim That His Sentence Was Excessive

Given His Personal History

¶ 56 Defendant also contends that the trial court abused its discretion by imposing a 55-year

sentence because he “was abused and unwanted as a child and has had substantial and longstanding mental illnesses.” We disagree, noting that the supreme court has previously

considered and rejected such arguments.

¶ 57 a. The Supreme Court’s Decisions in Shatner and Coleman

¶ 58 In People v. Shatner, 174 Ill. 2d 133, 137, 673 N.E.2d 258, 260 (1996), a jury convicted

the defendant of first degreemurder, robbery, and arson. Afterthe defendant waived his right

to a jury at his sentencing hearing, the trial court found (1) the defendant was eligible for the

death penalty based on the aggravating factor that he killed the victim in the course of

committing another felony and (2) that no mitigating factors were present to prevent the

imposition of that ultimate penalty. Shatner, 174 Ill. 2d at 138, 673 N.E.2d at 260. Thereafter

the court sentenced the defendant to death. Shatner, 174 Ill. 2d at 138, 673 N.E.2d at 260.

The defendant appealed, arguing, in pertinent part, that the court erred by considering his

history of drug abuse solely in aggravation. Id.

-11-
¶ 59 In rejecting the defendant’s claim, the supreme court stated the following:

“Defendant does not claim that the sentencing judge refused to hear or believed he was

somehow precluded from viewing the drug abuse history evidence as mitigating. Rather,

defendant essentially asserts that the sentencer should have found that defendant’s drug

abuse history in part explained his criminal behavior. Underlying this premise is that

since drugs are partly to blame for his actions, the defendant is somehow less culpable

and should not suffer the ultimate penalty for his criminal behavior. Simply stated, the

sentencing judge was under no legal obligation to subscribe to this suggestion. To the

contrary, the sentencing judge was free to conclude, under the circumstances, that

defendant’s drug history simply had no mitigating value but was, in fact, aggravating.”

Shatner, 174 Ill. 2d at 160, 673 N.E.2d at 270.

¶ 60 In People v. Coleman, 183 Ill. 2d 366, 401, 701 N.E.2d 1063, 1081 (1998), another

death-penalty case, the defendant claimed ineffective assistance of counsel during his

sentencing hearing because defense counsel failed to investigate potential sources of

mitigation. In support of his postconviction petition, the defendant attached several affidavits

from family members, each essentially claiming that the defendant was “the product of an

impoverished, chaotic household in which he was subjected to chronic abuse and neglect”

that eventually caused the defendant to develop a long-term dependence on drugs. Id. The

defendant also attached a psychological evaluation and social historyinvestigation report that

detailed the impairment of his emotional development as a result of his long-term drug use.

Coleman, 183 Ill. 2d at 401-02, 701 N.E.2d at 1081.

¶ 61 In rejecting the defendant’s ineffective-assistance-of-counsel claim, the supreme court

stated that it, as well as other courts, had noted that a history of substance abuse is a “doubleedged sword at the aggravating/mitigating phase of the penalty hearing.” Coleman, 183 Ill.

2d at 404, 701 N.E.2d at 1082. In this regard, the supreme court continued, as follows:

“With respect to the proffered evidence of the impairment of defendant’s emotional

development, this court has repeatedly held that ‘information about a defendant’s mental

or psychological impairment is not inherently mitigating.’ [Citation.] As we explained

in [People v. Tenner, 175 Ill. 2d 372, 382, 677 N.E.2d 859, 864-65 (1997)], ‘[a]t

sentencing, a judge or jury considering evidence of this nature might view the

information as either mitigating or aggravating, depending, of course, on whether the

individual hearing the evidence finds that it evokes compassion or demonstrates possible

future dangerousness.’ ” Coleman, 183 Ill. 2d at 406, 701 N.E.2d at 1083.

¶ 62 b. The Substance of Defendant’s Mitigation Claim

¶ 63 Defendant concedes in his brief to this court that he had “a role in [Schermerhorn’s]

death,” but asserts that because he experienced an abusive childhood that he exacerbated by

continually abusing drugs throughout his life, which adversely impacted his mental health,

the trial court should not have imposed a 55-year sentence. Defendant’s assertion is

unpersuasive.

¶ 64 We first note that defendant’s claimed mitigating factors of an abusive childhood,

mental-health problems, and substance-abuse issues are not set forth in the list of mitigating

-12-
factors in section 5-5-3.1(a) of the Unified Code that “shall be accorded weight in favor of

withholding or minimizing a sentence ofimprisonment.” 730 ILCS 5/5-5-3.1(a) (West 2006).

Indeed, our review of the 13 mitigating factors reveals that none would apply under the

circumstances in this case. Given that the General Assembly has twice amended section 5-3-

3.1 since the supreme court’s decisions in Shatner and Coleman and has not seen fit to

include a defendant’s mental-health issues among the listed mitigating factors (see Pub. Act

86-903, § 1, eff. Jan. 1, 1990 (1989 Ill. Laws 5001); Pub. Act 91-357, § 247, eff. July 29,

1999 (1999 Ill. Laws 3647, 4588)), we conclude that this omission is no oversight.

¶ 65 As the supreme court noted in Shatner and reaffirmed in Coleman, defendant’s claims

regarding his dire circumstances present a double-edged sword–that is, although defendant

claims that his specific circumstances are mitigating factors, the trial court could have also

considered all, some, or none as mitigating or aggravating factors.

¶ 66 Defendant’s mitigation claim is essentially a plea to this court to give him another chance

by vacating his sentence and remanding for the imposition of a shorter period of

imprisonment because–as in Shatner–he is less culpable as a result of his dismal life history.

Despite his urging to the contrary, however, the following factors support the trial court’s

imposition of a 55-year prison sentence, especially given that defendant has continually

demonstrated–byhis criminal history–that he cannot conform his behaviorto societal norms:

defendant’s (1) abusive childhood, which defendant cannot change; (2) mental-health issues,

which Killian documented will continue to exist throughout defendant’s life; and (3) severe

and chronic drug dependence, which defendant has demonstrated his unwillingness to curb.

¶ 67 III. CONCLUSION

¶ 68 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we

award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 69 Affirmed.

-13-