## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DAVI D D. B RUNNER, Def endant- Appellant.

District & N o. Four th District Docke t No. 4-10-0708

Filed Rehea ringdenied April 3, 2012

May 16, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s sentenc e to 55 year s’ imprisonment f or first deg ree murder

wa s upheld over his arguments that the evidenc e did not show that h e persona lly killed the victim and that h e was abused and unwanted as a child and had mental illnesses, since the ju ry could have conclude d beyond a rea sonable doubt that defe ndant persona lly killed the victim in the course of robbi n g her and taking her van, defe ndant’s claim that he

was convicted of first degree murder under a theory of acc ountability was unpersua sive, and defe ndant’s mental or psy cholog ical impairment wa s not inherently

mitigating

.

Dec ision Under
Review Appea l from the Circuit Court of Sang amon County
, No. 06-CF- 518; the Hon. Peter C. Cava

nag h, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Martin J

. Ry an, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ohn Milhiser, State’s Attorney
, of Springf ield (Patrick De lfino, Robert J

. Bide rman, and L inda Susan McCla in
, a ll of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustices Pope and Cook conc urre d in the judgme nt and opinion.

OP INION

¶ 1 In May 2010, a jury convicted defe ndant, David D. Br unner, of four counts of first deg ree

m u rd er (720 I L CS 5/9-1(a) (1), (a) (2), (a) (3) (West 2006)), robber y (720 I L CS 5/18- 1 (a ) (West 2006)), and posse ssion of a stolen vehicle (625 I L CS 5/ 4-103(a )(1) (West 2006)). ¶ 2 F o ll o w ing an August 2010 hear ing, the trial court merg ed defe ndant’s first deg ree murd e r convictions a

n d s e nte nced him to the following concur rent prison sentenc es: 55 y ear s for first deg ree murder, 6 year s for robbe ry , and 6 y ear s for possession of a stolen vehicle. ¶ 3 De fe n dant appea ls, arguing only that the trial court’s imposit ion of a 55-y ea r p ri s o n sentenc e was excessive. Specifica lly
, defe ndant contends that the court abused its discretion by imposing that sentenc e beca use (1) the evidenc e did not show that defe ndant persona lly killed the victim and (2) defe ndant “wa s abused and unwanted as a child and has had substantial and long -standingmental illnesses.” We disag ree and af firm.

¶ 4 I . BA CKGROUND ¶ 5 A. The State’ s Charg es ¶ 6 Shortly afte r the police discovere d J udy Scherme rhorn’ s strang led body in he r home in April 2006, the State char g ed defe ndant as follows: (1) first deg ree murder in that defe ndant intended to kill Scherme rhorn (720 I L CS 5/9-1(a) (1) (West 2006)) (count I ); (2) first deg ree murder in that defe ndant knew that his acts would cause her death (720 I L CS 5/9-1(a) (1) (West 2006)) (count I I ); (3) first deg ree murder in that defe ndant knew that his acts cre ated

a strong probability of her death (720 I L CS 5/9-1(a) (2) (West 2006)) (count I I I ); (4) first d egr ee murder in that while committing a forc ible felony (robbe ry ), defe ndant cause d her death (720 I L CS 5/9-1(a) (3) (West 2006)) (count I V); (5) robber y (720 I L CS 5/18-1(a) (West 2006)) (count V); and (6) possessio n of a stolen vehicle (625 I L CS 5/4-103(a) (1) (West 2006)) ( count VI ).

-2-¶ 7 B. D efe ndant’s Tria l

¶ 8 Be cause defe ndant is not challeng ing the sufficie ncy of the eviden ce t o s u s t ai n h i s convictions following his May 2010 jury trial, the fac ts rele vant to this appea l are as follows.

¶ 9 1 . The Evidenc e Prese nted by the State ¶ 10 Meg an Wanless testified that she was introduced to defe ndant in the ear ly morning hours of April 29, 20 0 6
, by defe ndant’s cousin, Terr y Fa ircloug h. Be cause defe ndant had cra ck

coca ine and c annabis, Wanless decided t o “hangout” and “ party” with him. Severa l hours afte r driving to a lake to consume drug s, defe ndant drove to a local pawnshop wher e he sold silver flatwa

re that he retrie ved from the car ’s trunk. There afte r, defe ndant drove to a home. Whil e in the drivewa

y of that home, defe ndant told Wanless that two day s ear lier, he had an argument with the owner

of the home that e nded when he strang led her to de ath. (Wanless later ide ntified an e x hibit that depicted Scher merhorn’ s home as the home she visited.) ¶ 11 Wanless enter ed the home with defe ndant, explaining that she d id n o t b e li e v e d e f endant’ s story

. Once inside, defe ndant sear ched for money and jewelr y

. Wanless followed defe ndant into a bedroo m and noticed a lump on the bed that she believed was a pile of blankets. Def endant eventua lly found $30 in a chec kbook. Def endant then drove Wanless to a motel wher e he rente d a room, and they consumed drug s. The next morning
, defe ndant returne d to the home. As she sat in the car , Wanless later observe d defe ndant leave the home, car rying jewelr y and “eg g -shape d” orname nts. After selling jewelr y to a pawnshop, defe ndant drove W an less to her friend’ s home. After a short time there
, defe ndant beca me upset beca

use Wanless would not show him the drug s she had rec eived. As defe ndant left the home without Wanless, he backe d the rea r end of the car into a pole, shifted the car into dri v e, an d hit a stop sign and a

fenc e. ¶ 12 P o l i ce responded to a dispatch reg arding defe ndant’s acc ident, an d up o n ar ri v i n g, observe d defe ndant–who appea red unconscious–in the driver’ s seat. A preliminary investigation reve aled that the car defe ndant had been driving was reg istered to Scherme rhorn but display ed stolen license plates. As police continued their investigation, defe ndant exit ed the car and fled, but police qu i ckly appre hended him. Parame dics later transporte d defe ndant to a hospital. ¶ 13 Wanless g ave the police defe ndant’s driver’ s license, explaining that she had it because defe ndant kept l o s i n g i t during the two day s she was with him. Wanless then asked if she

co u l d re t ri eve her possessions from the car

. When an office r opened the car ’s trunk to retrie ve Meg an’s poncho, he fo u n d t wo bag s of jewelr y , flatwa re, figurines, and Scherme rhorn’ s driver’ s license. Concerne d that Scherme rhorn may have been burg larized, office rs drove to the addre ss on Scherme rhorn’ s license. After their knocks at the front door
went unanswe red, office rs enter ed the home throug h an unlocked window and found Scherme rhorn’ s deco mp o s in g b o dy on a bedroom mattress wra pped tightly in blankets. After

an office r remove d a portion of th e b l an k ets, he testified that Scherme rhorn’ s head was

wra pped in a plastic ba g as if she was wea ring a shower cap and that she had be en g ag g ed. ¶ 14 A fore nsic patholog ist testified tha t (1) Scher

merhorn’ s hands and fee t w ere separ ately

-3-bound by cloth materia l; ( 2) an elec trical cord and cloth materia l w ere wra pped around her neck; (3) she was g ag g ed by a piece of cloth that wra pped around her fac e, ending in a knot located at the back of her head; and (4) her entire body was wra pped in lay ers of blankets and bedding secur ed by elec trical cords and a sash. The patholog ist opined that Scherme rhorn’ s death was cause d by “lig ature strangulation,” with the possibili ty that the plastic bag place d over he r hea d had contr ibuted to her de ath by deprivingher of

ox yg en. ¶ 15 The State elicited testim o n y fr o m s ev er al wi t n es s es t h at corr oborate d Wanless’s testimon y and showed that on April 28, 2006, defe ndant sold Fa irclough a computer in exchang e for drug s. The State’s evidence also reve aled that the computer defe ndant sold belong ed to Sche rmerhor n, and a deoxy

ribonucleic acid (DNA ) analy sis could not e x clude defe ndant as the contributor of DNA rec overe d from a sash used to secur e a blanket to Scherme rhorn’ s torso. ¶ 16 There afte r, the trial court admitted three digital rec ording s o f in te r v ie w s p o li c e conduc ted with defe ndant. I n those interviews, defe ndant provided the police with differ ing explanations reg arding Sch er m er h orn’s death, and he did so in the following order : (1) Scherme rhorn had rec eived threats from a man she hired who eventua lly stole her
presc ription pills; (2) during late April 2006, defe ndant o ft en stopped by Scherme rhorn’ s home and eac h time that she was not t h ere, he would steal her belong ings–inc luding a computer–to support his drug habit; (3) defe ndant and his friend, “L orenzo,” devised a plan
to rob Scherme rhorn to cover his drug debts, which resulted in her unintentional death; and (4) defe ndant strang led Scherme rhorn and tied h er up b ecause she threatened to use her
org anized-cr ime connec tions to h arm his former g irlfriend. (The digital rec ording s wer e play ed for

the jury .)

¶ 17 2. The Evidenc e Prese nted by De fendant ¶ 18 De fe ndant testified that he met Scherme rhorn in Fe bruar y 2006 through h i s fo rm er g irlfriend, who clea

ned Scherme rhorn’ s home. Scher m erh o rn worke d from home, selling cosmetic products, and planned to sell jewelr y over the Interne t. Over the next two months, defe ndant beca

me friends with Scherme rhorn, assisting her by perf orming landsca

ping and home maintenanc e jobs. On April 27, 2006, Scherme rhorn told d e fenda nt that a larg e amount of her jewelr

y was missing. Def

en d an t admitted to her that he took the jewelr y

. To make amends, defenda

nt stated t hat he enter ed int o an agr eeme nt with S ch ermerhorn to defr aud her homeowner ’s insurance provider by claiming that she had been robbed. Be fore defe ndant left S cher merhorn’ s home t o return a v an he borrowed from his cousin, J oey Br unner, she insisted that he return that night so that they could finalize their plans. ¶ 19 After smoking cra ck coca ine with J oey , defe ndant and J oey returne d to Sche rmerhor n’s home wher e they finalized a plan to tie Scherme rhorn up, ra n s ac k her home, and
anony mously repor

t the burg lary to the police. Def endant would then sell the stolen items out of state and provide Scherme rhorn a portion of the proce eds to financ ially support her until her insurance chec k arrived. Def endant stated that afte r Scherme rhorn ag ree d with the plan, he started rummag ing throug h her home while J oey tied her up. A short time later, defe ndant informed Scherme rhorn that they wer e leaving and she responde d with a “muffle d” sound.

-4-¶ 20 Def endant rec ounted that as he drove awa y , J oey “flipped out” unexpectedly
, and beg g ed him to forg et ab o u t repor ting the robber

y beca use J oey thought he may have killed Scherme rhorn when he tied her up. Instead of calling 9-1-1, defe ndant drove J oey back to his home, returne d to chec k on Scherme rhorn, and confirme d that she was dead. Def endant then

wra pped Scher

merhorn’ s body

in blankets to preve nt her dogfrom “f eeding ” on her

body

. ¶ 21 Def

endant explained that initially
, h e d i d n o t wa n t to implicate J oey beca use he wa s “fa mily ” but afte r “sober ing up” and “re alizing exactly what just happene d,” he decide d that “it’s not fair to [S cher

merhorn], to have who rea lly killed her runnin[g] around.” Def endant also (1) cl ai m ed that his videotaped explanations wer e lies and (2) acknow ledg ed that he continued stea ling f

rom Scherme rhorn’ s home afte r her death.

¶ 22 3. The Trial Court’s Instruction to t he Jury on Acc ountabilit

y ¶ 23 In addition to the jury instructions the trial court provided reg arding the propositions the Stat e wa s mandated to prove beyond a rea sonable doubt to sustain guilty verdic ts on the
counts charg ed, the court also instructed the ju ry on I llinois Pattern J ury Instructions, Criminal, No. 5.03A (4th ed. 2000), entitled, “Ac countability –Fe lony Murder .” Specifica lly
, the cour t informed the jury

as follows:
“To sustain the char g e of first deg ree murder, it is not nece ssary for the State to show that it was or may have been the orig inal intent o f t h e d ef en d ant or one for whose conduct he is leg ally

responsible to kill the dece ased, *** Sche rmerhor n. I t is sufficie nt if the jury believes from the evidenc e beyond a rea sonable doubt that the defe ndant or one for whose conduct he is legal l y re s p o n sible, combined to do an unlawful act, such as to commit Robbery
, and that the dece ased was killed by one of the parties c ommitt ing that unlawful ac t.”

¶ 24 4. The Jury’ s Verdict ¶ 25 On this evidence , the jury returne d g uilty

verdic ts on all six counts.

¶ 26 C. Defe ndant’s Sentenc ing H ear ing ¶ 27 1. The Evidenc e Prese nted by the State ¶ 28 At defe ndant’s August 2010 sentenc ing hear ing, a retire d police office r testified that in J anuar y 1992, defe ndant stab b ed Ke n n et h L og an–a person he had known for about a y ear –twice in the s tomach. In Marc h 1992, def en d an t p leade d guilty to ag g ravated battery and wa s later se ntence d to 30 months’ probation. ¶ 29 Detec tive Ry an Simm s, the office r who investigated Scherme rhorn’ s death, testified that in Aug ust 2006, defenda

nt’s cousin, Nicole Mere dith, pr ovided him a letter tha t defe ndant
wrote to her. In his letter, defe ndant asked Mere dith to contac t his lawyer to confirm a story he hear d while in jail that J oey brag g ed to Mere dith how J oey had murdere d Scherme rhorn. The letter provided a detailed acc ount of the story J oey purportedly told Mere dith reg arding Scherme rhorn’ s death. (De fenda nt’s written acc ount of J oey ’s admission mirrore d his May 2010 trial testimony .) Def endant also reque sted that Mere d i th not discuss his letter with

-5-an y o ne but his lawy er and to destroy the letter afte r she finished rea ding it. Sim m s al s o

descr ibed the content of a second letter defe ndant wrote to Mere dith in J uly 2010, in which defe ndant expressed his rag e upon lear ning that Mere dith provided Simm s the August 2006 letter. (Simms had ear lier rea d defe ndant’s August 2006 and J uly 2010 letters to the jury
, and the trial cour

t later a dmitted those letters into evidence .) ¶ 30 Def

endant’ s August 2010 prese ntence investigation repor t (P S I ) l i s t ed the following felony convictions, which wer e in addit i o n to defe ndant’s 1992 conviction for ag g ravated battery : (1) in Marc h 2000, four year s in prison for three sepa rate felony

theft convic tions; (2) in J uly 2002, three y ear s in prison for felony t h eft; and (3) in May 2004, 4 1/2 y ear s in prison for thef

t by dece ption. ¶ 31 Def

endant’ s PSI also provided the following sy nopsis of his “m en t al o r em o tional” condition: “The defe ndant has had a p s y ch i at ri c history with conduct disorders, problems as an adolesc ent[,] and a continuou s i ssue with depre ssion. His history of depre ssion has

cause d sleep disturbance s an d p as t s uicidal thoughts. He was first admitted to a psy chiatric hospital at approximately ag e 12 or 13 *** for b ehavioral problems. At approximately 1 6 or 17, the defe ndant was ag ain hospitaliz ed *** for overdosing on [a] spirin due to being very depre ssed. On Fe bruar y 1, 1998, the defe ndant *** rec eived

a diag nosis for a Major Depr essive disorder with substance abuse problems. To date, the defe ndant repor

ted that he curr ently takes Wellbutrin for his depre ssion and has rec eived approximately

3 months of counselingfor de pression while in custody .”

¶ 32 2. The Evidenc e Prese nted by De fendant ¶ 33 The trial court admitted a fore nsic psy chiatric evaluation conducte d by Terr y M. Killian, clinical assistant profe ssor of psy chiatry at Southern I llinois University School of Medicine. Killian’s “princ ipal diag nosis” was that defe ndant suffe red from chronic and sever e coca ine depende ncy

. In his written evaluation, Killian rec om m en d ed t o the court that defe ndant’s “l ife has been signific antly disrupted by many things[,] which should be kept in m i n d i n dispositi on [ sic ] of this case .” Killian sug g ested that the court take into acc ount the following “mitigation issues”: (1) the a buse and ne g lect def

endant suff

ere d during his childhood, (2) defe ndant’s undiag nosed attention defic it hy pera ctivity d i s o rder
, (3) defe ndant’s lifetime history of depre ssion, (4) defe ndant’s mild post-traumatic stress disorder, (5) defe ndant’s

sever e and c hronic c ocaine depende nce, and (6) defe ndant’s sever e impairment at the time of the c rime.

¶ 34 3. The Sentenc ed Im posed by theTrial

Court ¶ 35 At the sentenc ing hear ing, the trial court stated that it had considere d (1) the evi d en ce prese nted at defe ndant’s May 2010 trial, (2) the PSI
, (3) the victim-impact s t at em ents , (4) the evidenc e and exhibi ts prese nted at the sentenc ing hear ing, and (5) the parties’ arguments. In addition, the co u rt noted that it had car efully considere d Killian’s psychiatric repor t reg arding defe ndant’s childhood, abuse, and depre ssion. The court then stated the following :

-6-“[The court] note[s] that it was argued that the D ef en dant was very clea

rly g iven a chanc e, but it is clea

r from the Defenda

nt’s statement t hat *** Scherme rhorn ga v e t h e Def endant *** more than one chanc e, and in fac t, *** the jury found that it was clea r that *** y ou wer e driven by an addiction, in that in y our t ime of need, time of despe ration,
y ou went straig ht over to [S cher merhorn’ s] house to seek out help, and she was the one person, the one friend *** y ou thought might still be there for y ou, who might potentially help y ou. What’s clea

r i s that when you did g o to *** Scherme rhorn’ s house, t he door

was a lway s open, you’ll rec all saying. [Despite] her r esponse ***, y ou did turn on her, and you took her life. The jury had found that, and y ou then proce eded to sy stematically loot her home a

nd drive a round in her c ar ove r the ne x t couple of da y s as if these w ere y our i tems and y our ca r, and that absolutely nothing was wrong , as *** Scherme rhorn lay dead in her own bed. So that’s what was proved at trial, and [S cher merhorn] was the
one per son who admittedly g ave y ou a cha nce.” There afte r, t he court imposed t h e following concur rent prison sentenc es: 55 y ear s for first deg ree murder (count I ), 6 y ear s for robber y , and 6 year s for possession of a stolen vehicle. (The court di d not sentenc e defenda nt on count I I
, I I I
, or I V, findi ng that t h o s e counts had
merg ed into his conviction on count I .) ¶ 36 This appea l followed.

¶ 37 I I . THE TRIAL COURT’S SENTENCE ¶ 38 De fe ndant appea ls, arguing only that the trial court’s imposit ion of a 55 -y ea r p ri s o n sentenc e was excessive. Specifica lly
, defe ndant contends that the court abused its discretion by imposing that sentenc e beca use (1) the evidenc e did not show that defe ndant persona lly killed S ch ermerhorn and (2) defe ndant “wa s abused and unwanted as a child and has had substantial and long- standing mental illnesses.” Def endant maintains that the court did not sufficie ntly consider these contentions and that they constitute mitigating fac tors ag ainst the imposit ion of such a ha

rsh sentenc e. We addr ess def endant’ s contentions in turn.

¶ 39 A. The Standa rd of Revie w ¶ 40 Th e s en t ence imposed by a trial court is g rante d g reat defe renc e beca use the court is
g ener ally in a better position than a revie wing court to weig h fac tors such as the defe ndant’s

cre dibilit y , demea

nor, g ener al moral charac ter, mentality
, social environment, and habits. People v. Calabrese
, 398 I ll. App. 3d 98, 126, 924 N.E.2d 6, 29 (2010). This defe renc e provides a trial court the latitude t o i mp o s e a s entenc e that falls wit hin the s tatutory rang e presc ribed for

the offe nse. People v. Perkins
, 408 I ll. App. 3d 752, 763, 945 N.E.2d 1228, 1238 (2011). A sentenc e that is within statutory limit s is excessive and, thus, an abuse of the court’s discretion only when it is g rea tly at var iance with the spirit and purpose of the law,

or manifestly disproportionate to the nature of the offe nse. See People v. Luna
, 409 I ll. App. 3d 45, 52, 946 N.E.2d 1102, 1110 (2011)

.

-7-¶ 41 B. The Statutory Ag g ravating a

nd MitigatingFa ctors ¶ 42 1. The Statutory Mitigati ng Factors ¶ 43 Section 5-5-3.1 of the Unified Code of Correc tions (Unified Code), entitled, “F actor s in Mitigation,” pr ovides the followingsentenc ing guidance : “(a ) The following g rounds shall be acc orded weig ht in favor of withholding or minimi zing a se ntence of imprisonment: (1) The defe ndant’s crimi n al co n duct neither cause d nor threatened serious phy sical har

m to another. (2) The defe ndant did not contemplate that his criminal conduct would cause or threaten serious phy sical har m to another. (3) The defe ndant ac ted under a strongprovocation. (4) There were substantial g rounds t ending to excuse or j ustify the def endant’s criminal conduc t, though f ailing to e stablish a defe nse. (5) The defe ndant’s criminal conduct was induced or fac ili ta te d b y s omeone other than the def

endant. (6) The defe ndant has compensated or will compensa te the victim of his criminal conduct f or the damag e or injury

that he sustained. (7) The defe ndant has no history of prior delinquency or criminal activity or has led a law-a

biding life for a

substantial period of time bef ore the commission of t he
prese nt crime. (8) The defe ndant’s criminal conduct was the result of circ umstances unlikely to

rec ur. (9) The char acter and attitudes of the defe ndant indicate that he is unlikely to commit another c rime. (10) The defe ndant is particula rly likely to c omply with the terms of a period of probation. (11) The imprisonment of the defe ndant would entail ex cessive hardship t o his depende nts. (12) The imprisonment of the defe ndant would endang er his or her medical condition. (13) The defe ndant was mentally reta rded as define d i n S ec tion 5-1-13 of [t he Unified] Code. (b) I f the court, having due re gar d fo r the char acte r of the offe nder, the nature and circ umstances of the offe nse and the public interest finds that a sentenc e of imprisonment is the most appropr iate dispositi on of the offe nder, or wher e other provisions of this Code mandate the imprisonment of the offe nder, the g rounds listed in para gra p h (a) of this subsection shall be considere d as fac tors in mitig ation of the term imposed.” 730 I L CS 5/5-5-3.1 (West 2006). Thus, section 5-5-3.1 of the Unified Code require s a trial co u rt t o co nsider the 13 afor ementioned mitigating f actor s listed, if present, in mitiga tion.

-8-¶ 44 2. The Statutory Aggravating Factors

¶ 45 Section 5-5-3.2( a) of the Unified Code, entitled “F actor s in Ag g ravation,” sets forth 22 fac tors that a trial co u rt is require d to consider, if prese nt, in ag g ravation. In particula r, section 5-5- 3.2(a) provides, in par t, the following : “(a ) The following fac tors shall be accor ded weight in favor of i mposing a term of imprisonment o r m ay be considere d by the court as rea sons to impose a more sever e sentenc e under

Section 5-8-1: (1) the de fenda

nt’s conduct c aused or

threatened se rious harm; (2) the de fenda

nt rec eived c ompensation for c ommitt ing the offe nse; (3) the de fenda

nt has a history

of prior de linquency

or cr iminal activity ; (4) t h e d efe ndant, by the duties of his office or by his position, was oblige d to preve nt the particular offense committ ed or to bring the offender s committing i t to justice; (5) the defe ndan t h eld public office at the time of the offe nse, and the offe nse related to the conduc t of that offic e; ( 6 ) th e d e fenda

nt utiliz ed his profe ssional reputation or position in the c o mm u n it y to commit the offense , or to aff ord him an ea sier mea

ns of committing it; (7) the se ntence is nece ssary to deter othe rs from c ommitt ing the same c rime;
* * * (12) the defe ndant was convicted of a felony committed while h e wa s re lease d

on bail *** pendingtrial for a prior felony and was convicted of such prior felony
, or the defe ndant was convicted of a felony committed while he was serving a period of *** mandatory

supervised r elea se ***; (13) the defe ndant committed or attempted to commit a fe lony while he was

wea ringa bulletproof ve st.” 730 I L CS 5/ 5-5-3.2( a) ( West 2006).
The majority of the rema ining 13 statutory ag g ravating fac tors listed under section 5-5-3.2( a) of the Unified Code perta in either t o t h e (1) ag e, medical condition, rac e, g ender
, or employ ment status of the victim; (2) the defe ndant’s persona l or profe ssional relationship to the victim; or (3) wher e the crime was committed, which includes, in part, churc hes, nursing homes, or day -ca

re f acilities. 730 I L CS 5/ 5-5-3.2( a) ( West 2006).

¶ 46 C. Defe ndant’s Excessive-Sentenc e Claims ¶ 47 1. Defendant’ s Claim T hat the Evidenc e Did Not Show That He Personally Killed the Victim ¶ 48 As previously stated, defe ndant contends t h at t h e t ri al court abused its discretion by imposing a 55-y ear sentenc e beca use the evidenc e did not show that defe ndant persona lly killed the victim. Spec ifically
, defe ndant asser ts that the absenc e of dire ct evidenc e that he planned to kill Scherme rhorn or persona lly kill her was a mitigating fac tor that the court did not suf ficiently consider and milit ated ag ainst the imposit ion of such a ha rsh sentenc e. We

-9-reje ct def endant’ s contention. ¶ 49 Although the plain langu age o f s ec t i o n s 5 -5 -3.1 and 5-5-3.2( a) of the Unified Code mandates that, if prese nt, the trial court must consider the enumer ated 13 mitigating and 22
ag g ravating fac tors, respe ctively
, in de termining a sentenc e of imprisonment, those fac tors

are not an exclusive listi ng that prohibits a court from considering any other rele vant sentenc ing f

actor

. ¶ 50 In People v. W ard
, 113 I ll. 2d 516, 525, 499 N.E.2d 422, 425 (1986), the supreme c ourt reje cted the defe ndant’s argument that the trial court err ed by co nsidering his claims of innocenc e as a

n ag g ravating f

actor . In so doing, it provided the following g uidance : “The imposit ion of a criminal sentenc e should not be reduc ed to a litany of acc epted and approve d but meaning less wor d s and phrase s. In deter mining the appropr iate
sentenc e, the trial judge must consider all m at t er s ref lecting upon the defe ndant’s
persona lity
, propensities, purposes, ten d en ci es, and indeed eve ry aspect of his life relev ant to the se ntencing proce eding

. [C itations.] In some instances and under cer tain fac tual circ umstances, a continued protestation of innocenc e and a lack of remorse may convey a strongmessag e to the trial judg e that the de fenda nt is an unmiti g ated liar and
at conti n u ed war with society

. Such impressions g arne red by the trial judge from the entire proce eding are proper fac tors to consider in imposing sentenc e. This court has held that it was not improper for t he trial court to consider its perc eption of t he defenda nt’s perjury in fix ing the penalty to be imposed. [C itation.] We believe that the impact of the defe ndant’s testimony and st atement upon the trial judge , assessed in light of the other information reve aled during the course of the trial and the sentenc ing hear ing, can hardly be said to be irrele vant to an appra isal of the defe ndant’s char acte r and his prospec ts for reha bilitation.” (Emphasis added.) W ard , 113 I ll. 2d at 527-28, 499 N.E.2d at 426.
See People v. Dowding
, 388 I ll. App. 3d 9 3 6, 943, 904 N.E.2d 1022, 1029 (2009) (in deter mining the appropr iate sentenc e to impose, a trial court may consider as an ag g ravating fac tor the deg ree of harm to the victim, the manner in which the victim’s death was broug ht about, as well as the seriousness, nature , and circ umstances of the offe nse); Perkins
, 408 I ll. App. 3d at 763, 945 N.E.2d at 1238 (citing W ard approving ly for the proposition that a trial
court should not arbitra

rily consider a claim of innocenc e as an ag g ravating sentenc ing fac tor but under other circ umstances, a defe ndant’s lack of remorse or denial o f gu i l t may be
proper ly considere d by the court with reg ard to the defe ndant’s prospec ts for reha bilitation). ¶ 51 Def

endant c oncede s that he is acc ountable for Scherme rhorn’ s murder, but claims that “who actua lly killed [S cher merhorn] has rele vance to the sentenc e imposed.” Def endant posits further, a s follows:
“The harsh 55-y ear

prison sentenc e imposed *** would have been a ppropriate had [defendant] per s o nally killed (or planned to kill) *** [S cher merhorn]. Howeve r, there is no sug g estion in the rec ord that [defendant] persona lly killed her, de spite the court’s

err oneous findingat sentenc ing that [ defe ndant] took [ Scherme rhorn’ s] l ife.” ¶ 52 Def

endant’ s analy sis reg arding the sentenc e the trial cour t i m p o s ed is consistent with W ard. We ag ree that the court could have considere d–as an ag g ravating sentenc in g fac tor–that defe ndant, a lifetime drug abuser
, had callously murdere d Scherme rhorn, stolen

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

surrounding her death. Indeed, the leg islature had addre ssed this issue, albeit in the context of t h e d ea t h p enalty statute under section 9-1(b) (6)( a)( i) of the Criminal Code of 1961 (Criminal Cod e)
, wh i ch stated that a defe ndant who had been found g uilty of first deg ree murder may be sentenc ed to death if the murdere d individual was killed in the course of another felony if the murdere d individual “wa s actua lly killed by the defe ndant.” 720 I L CS 5/9-1(b)( 6)(a )(i) ( West 2006). We note t hat t he li st of death-pena lty -elig ibilit y fac tors was listed in section 9-1(b) of the Criminal Code under the heading “Ag g ravating Fa ctors.” 720 I L CS 5/ 9-1(b) (West 2006). ¶ 53 First, we find unpersua sive defe ndant’s underly ing claim that the jury found him guilty of Scher merhorn’ s death solely under the theory of ac countability . On this recor d, the jury could easily have drawn the infere nces nece ssary to conclude beyond a rea sonable doubt that defe ndant persona lly killed Scherme rhorn. See People v. W ashington
, 2012 I L 110283, ¶ 60 (the jury ’s func tion is t o assess witness cr edibility
, weig h the evidenc e, resolve c onflicting evidenc e, and dr aw r easona ble infer ence s theref

rom). ¶ 54 M o re signific antly
, the fata l flaw in defe ndant’s argument that the trial court err ed b y imposing a 55-y ear sentenc e is his proposed treatment of the absence of an ag g ravating fac tor. Even if we wer e to acc ept defe ndant’s claim that the jury convicted him of first deg ree murder under an acc ountability theory
, which we have alre ady conclude d we do not, we reje ct defe ndant’s s u gges t ion that the absenc e of evidenc e that he persona lly killed Scherme rhorn–in other words, the ab s en ce of a possible ag g ravating fac tor–must be considere d by the court as a mitigating fac tor, resulting in the downwar d depar ture from the
sentenc e the c ourt would have otherwise imposed.

¶ 55 2. Defendant’ s Claim T hat His SentenceW

as Exce ssive Given H is Personal History ¶ 56 Def

endant also contends that the trial court abused its discretion by imposing a 55-y ear sentenc e beca

use he “wa s abused and unwanted as a child and has had substantial and longstanding mental illnesses

. ” We disag ree , noting that the supreme court has previously considere d and re

jected suc h arguments.

¶ 57 a. The Supreme Court’s De cisions in Shatner and Coleman ¶ 58 In People v. Shatner
, 174 I ll. 2d 133, 137, 673 N.E.2d 258, 260 (1996), a jury convicted the defe ndant of first deg ree murder, robber y , and arson. After the defe ndant waived his rig ht
to a jury at his sentenc ing hear ing, the trial court found (1) the defe ndant was elig ible for the death penalty based on the ag g ravating fa ct o r t h at he killed the victim in the course of committing another felony and (2) that no mitigating fac tors wer e present to preve nt the imposit ion of that ultimate penalty

. Shatner
, 174 I ll. 2d at 138, 673 N.E.2d at 260. There afte r the court s en t enced t he defenda nt to death. Shatner
, 174 I ll. 2d at 138, 673 N.E.2d at 260. The defe ndant appea led, arguing, in per t i n en t part, that the court err ed by considering his history of drugabuse solely

in ag g ravation. Id.

-11-¶ 59 In reje ctingthe def endant’ s claim, the supre me cour t stated the following : “De fenda nt does not c laim tha

t the sentenc ing judge ref used to hear or believed he was somehow prec luded from viewing the drug abuse history evidenc e as mitigating

. Rather, defe ndant essentially asser ts that the sentenc er should have found that defe ndant’s drug abuse history in part explained his criminal behavior

. Under lying this premise is that since drug s are partly

to blame for his actions, t he defenda nt is somehow less culpa

ble and should not suffer

the ultimate penalty for his criminal behavior. S imply stated, the
sentenc ing jud ge wa s u n der no leg al obligation to subscribe to this sug g estion. To the contrary , the sentenc ing judge was fre e to conclude
, under the circ umstances, that defe ndant’s drug history simply had no mitigatingvalue but wa s, in f act, ag g ravating.” Shatner , 174 I ll. 2d at 160, 673 N.E.2d at 270. ¶ 60 In People v. Co l em a n , 1 8 3 I ll. 2d 366, 401, 701 N.E.2d 1063, 1081 (1998), a nother death- penalty case , the defe ndant claimed ineffect ive assistance of counsel during his
sentenc ing hear ing beca

use defen s e counsel failed to investigate potential source s of mitigation. In support of his p o s tc o nv iction petition, the defe ndant attache d sever al aff idavits from family members, each essentially claiming that the defendant wa s “the product of an impoverished, cha otic household in which he was subjec ted to chronic abuse a nd neg lect” that eventua lly cause d the defendant to d evelop a long-ter m depende nce on drug s. Id. The defe ndant also attache d a psycholog ical evaluation and social h is to r y in v e s ti g a tion repor t that detailed the impairment of his emotional development as a result of his long- term drug use. Coleman , 183 I ll. 2d at 401-02, 701 N.E.2d at 1081. ¶ 61 In reje cting the defendant’s ineffe ctive-a ssistance-of -coun s el claim, the s upreme court stated that it, as well as other courts, had noted that a history of substance abuse is a “doubleedg ed sword at the ag g ravating/mitigating phase of the penalty hear ing.” Coleman
, 183 I ll. 2d at 404, 701 N.E.2d at 1082. I n this reg ard, the supreme c ourt continued, a s follows:
“With respe ct to the proff ere d evidenc e of the impairment of defe ndant’s emotional development, this court has repe atedly held that ‘information about a defe ndant’s mental
or psy cholog ical im pairment is not inhere ntly mitigating .’ [ Citation.] As we ex plained in [ People v. Tenner
, 175 I ll. 2d 372, 3 8 2
, 6 7 7 N.E.2d 859, 864-65 (1997)], ‘[a]t
sentenc ing, a judge or jury considering evidenc e of this nature might view the information as either mi tigating or ag g ravating, depending
, of course , on whether the individual hear ing the evidenc e finds that it evokes compassion or demonstrates possible future da ng erousne ss.’ ” Coleman , 183 I ll. 2d at 406, 701 N.E.2d at 1083.

¶ 62 b. The Substance of De fenda nt’s Mitigation Claim ¶ 63 De fe n d an t co n ce des in his brief to this court that he had “a role in [ Scherme rhorn’ s ] death,” but asser

ts that beca

use he experience d an abusive childhood that he exacer bated by continually abusing drug s throug hout his life, which adver sely impacted his mental health, the trial court should not h av e imposed a 55-y ear sentenc e. Def endant’ s asser

tion is
unpersua sive. ¶ 64 W e first note that defe ndant’s claimed mitigating fac tors of an ab u s i v e ch i l d h o o d
, mental-he alth problems, and substance- abuse issues are not set forth in the list of mitigating

-12-fac tors in section 5-5-3.1( a) of the Unified Code that “shall be acc orded w eight in favor of

withholding or minimi zi n g a s e nte n c e o f im p r is o nme n

t.” 730 I L CS 5/5-5-3.1(a ) (West 2006). Indee d
, o u r review of the 13 mitigating fac tors reve als that none would apply under the circ umstances in this case

. Given that the Gene ral Assembly has twice amende d section 5-3- 3.1 s i n ce the supreme court’s decisions in Shatner and Coleman and has not seen fit to include a defe ndant’s mental-he alth issues among the listed mitigating fac tors (see Pub. Act 86-903, § 1, eff

. J an. 1, 19 9 0 (1 9 8 9 I ll. L aws 5001); Pub. Act 91-357, § 247, eff

. J uly 29, 1999 (1999 I ll. L aws 3647, 4588)) , we c onclude that this omission i s no oversig ht. ¶ 65 As the s upreme court noted in Shatner and reaff irmed i n Coleman
, defe ndant’s claims
reg arding his dire circ umstances prese nt a double-e dg ed sword–that is, a lthough defe ndant claims that his specific circ umstances are mitigating fac tors, the trial court could have also considere d all, some, or none a s miti g atingor ag g ravating f actor s. ¶ 66 Def

endant’ s mitigation claim is essentially a plea to this court to g ive him another chanc e by vacating his sentenc e and rema nding for the imposit io n o f a s h o rt er period of imprisonment beca

use–as in Shatner

–he is less culpable as a result of his dismal life history

. Despite h i s urg ing to the contra ry , howeve r, the following fac tors support the trial court’s imposit ion of a 55-y ear prison sentenc e, espec ially g iven that defe ndant has continually demonstrated–by his criminal history –that he cannot confor

m his behavior to societal norms: defe ndant’s (1) abusive childhood, wh ich defe ndant cannot chang e; (2) mental-he alth issues, which Killian documented will continue to exis t throug hout defe ndant’s life; and (3) sever e and chronic drug depende nce, which defe ndant has demonstrated his unwillingness to curb.

¶ 67 I I I . CONCLUSI ON ¶ 68 For the rea sons stated, we aff irm the trial court’s judgme nt. As part of our judgme nt, we

awa rd the State its $50 statutory assessment ag ainst defe ndant as c osts of this appeal.

¶ 69 Affir

med.

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