2022 IL App (1st) 210254-U

No. 1-21-0254 

Order filed June 23, 2022 

Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

ROBERT KING, 

Defendant-Appellant. 

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) 

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Appeal from the

Circuit Court of

Cook County. 

No. 14 CR 8586 

Honorable 

Joseph M. Claps, 

Judge, presiding. 

JUSTICE LAMPKIN delivered the judgment of the court.

Presiding Justice Reyes and Justice Rochford concurred in the judgment. 

ORDER

¶ 1 Held: Defendant’s conviction and sentence are affirmed where: (1) defendant was proved 

guilty beyond a reasonable doubt of armed habitual criminal, (2) defendant failed 

to establish an ineffective assistance claim regarding trial counsel’s failure to file a 

motion to suppress evidence, and (3) the trial court did not abuse its discretion in 

sentencing defendant to 11 years’ imprisonment. 

¶ 2 Defendant Robert King appeals his conviction for armed habitual criminal and his sentence 

of 11 years’ imprisonment. On appeal, defendant argues that the State failed to prove him guilty 

of armed habitual criminal beyond a reasonable doubt, that trial counsel was ineffective for failing 
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to file a motion to suppress evidence, and that his 11-year sentence was the result of an abuse of 

discretion. 

¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.1 

¶ 4 I. BACKGROUND

¶ 5 Defendant was charged by information with one count of armed habitual criminal (720 

ILCS 5/24-1.7(a) (West 2014)), one count of unlawful possession of a weapon by a felon (720 

ILCS 5/24-1.1(a) (West 2014)), and two counts of aggravated unlawful use of a weapon (720 ILCS 

5/24-1.6(a)(1-2)(3)(C) (West 2014). Prior to trial, defendant filed a motion to suppress evidence 

alleging that his arrest and detention violated the first and fourteenth amendments of the United 

States Constitution. Defendant later withdrew the motion and demanded a bench trial. 

¶ 6 At trial, Chicago Police Sergeant Shawn Rellinger testified that he was part of a three-car 

detail in the proximity of 7744 North Paulina Street on May 3, 2014, at around 1:00 a.m. The detail 

was present because of “numerous shootings” in the area. Gunshots rang out approximately a block 

and a half north of Rellinger’s location. Rellinger then proceeded north on Paulina. Rellinger saw 

individuals running in different directions. Rellinger stopped one individual who was running 

towards him and determined that the individual was not involved in the shooting. 

¶ 7 Rellinger then had to detour into the alley because a vehicle was blocking his route on 

northbound Paulina. Rellinger exited the alley and saw defendant walking toward him. Defendant 

was walking while others were running in fear. Rellinger decided to stop defendant, but defendant 

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), 

this appeal has been resolved without oral argument upon the entry of a separate written order.
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did not obey Rellinger’s verbal commands. When Rellinger exited his vehicle, defendant took off 

running. 

¶ 8 Rellinger gave chase and called his actions in over the radio. As Rellinger chased 

defendant, he noticed that defendant had an object in his left hand and was holding his pants up 

with his right hand. Defendant then tossed the object in his left hand and dropped something from 

his right hand. Rellinger was approximately 10-15 feet from defendant when he discarded the two 

items. The item tossed from defendant’s left hand sounded like glass when it hit the ground. 

Rellinger later saw a bottle in that location. The item defendant dropped with his right hand was a 

“dark object” that made a “metallic sound” when it hit the ground. After discarding the two items, 

defendant’s pants fell and he tripped and fell to the ground. 

¶ 9 Rellinger then jumped on top of defendant to detain him. Defendant resisted Rellinger’s 

efforts. Assistance arrived seconds later and the officers were able to get defendant under control. 

After defendant was under control, Rellinger was informed that another officer recovered a firearm 

from right behind Rellinger’s and defendant’s feet. 

¶ 10 On cross examination, Rellinger admitted that he could not testify that the object dropped 

from defendant’s right hand was a gun. The gun was not subjected to any fingerprint or DNA 

testing. 

¶ 11 Chicago Police Sergeant Escalante2 testified that he and a partner responded to Sergeant 

Rellinger’s call for assistance. Escalante observed Rellinger and another officer attempting to place 

defendant into custody. Escalante observed a handgun inches from defendant’s feet. Escalante 

recovered the firearm and identified People’s Exhibit 1 as the firearm he recovered. 

2 Sergeant Escalante’s first name does not appear in the record.
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¶ 12 The parties then stipulated that defendant had prior convictions of residential burglary and 

burglary. The parties also stipulated that on May 3, 2014, defendant did not possess a valid Firearm 

Owner’s Identification card or a Conceal Carry License. The trial court denied defendant’s motion 

for a directed verdict.

¶ 13 Defendant testified that in the early morning hours of May 3, 2014, he went to multiple 

corner stores to buy cigarette papers and a pint of vodka. Defendant purchased vodka at the first 

corner store and then cigarette papers at a second corner store around 1 a.m. Defendant then 

proceeded down Juneway Terrace. Defendant parked his car, exited, and walked to the sidewalk. 

Defendant then heard screeching tires and saw an unmarked blue and white truck. Defendant saw 

Sergeant Rellinger in the truck with a white shirt on. 

¶ 14 Defendant testified that he was only carrying his car keys. Defendant was holding his pants 

up with his right hand because he was not wearing a belt. The liquor bottle was in his back pocket.

Defendant testified that he did not have a gun. Defendant testified that Rellinger was “cussing and 

calling [him] names” and telling defendant to come to him. Rellinger was about 20 feet away and

defendant told him “no,” “I don’t think so,” and to “have a goodnight.” Defendant then kept 

walking. 

¶ 15 Around a minute later, Rellinger came from between some cars and tried to clothesline3

defendant. As Rellinger tried to tackle defendant, defendant braced himself and asked, “Sarge, 

what’s wrong? What happened, man? What’s the problem?” Rellinger then accused defendant of 

shooting up a party. Rellinger also hit defendant in the back of his ear with an object. Rellinger 

3 To “clothesline” is to “knock down (a football player) by catching by the neck with an 

outstretched arm.” Merriam-Webster’s Collegiate Dictionary 217 (10th ed. 1998). 
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then took defendant’s pants and boxers down to his ankles. Rellinger searched defendant, taking 

defendant’s money, wallet, keys, and his iPhone out of his pockets. Defendant then explained 

injuries to his face and shoulder, which were the result of Rellinger pushing him to the ground and 

stomping on his shoulder. Defendant testified that he had never seen the recovered firearm. 

¶ 16 The trial court found defendant guilty on all counts. The trial court found that the two 

officers testified “clearly and convincingly.” The trial court rejected defendant’s version of events. 

The trial court merged all counts into the armed habitual criminal conviction and sentenced 

defendant to 11 years’ imprisonment. Defendant was sentenced on March 30, 2017. Defendant did 

not file a motion to reconsider sentence, but he did file a notice of appeal on the day he was 

sentenced.

¶ 17 Defendant filed a postconviction petition in August 2017. On appeal from the second-stage 

dismissal of his petition, the parties became aware that defendant’s March 2017 notice of appeal 

was not properly transmitted. Defendant’s notice of appeal was then properly transmitted. This is 

a direct appeal of the trial court’s judgment. 

¶ 18 II. ANALYSIS

¶ 19 Defendant first argues that the State failed to prove that he possessed a firearm beyond a 

reasonable doubt. Defendant points out that no eyewitness testified that they saw defendant with 

the firearm. Defendant argues that Sergeant Rellinger could not even offer a general description 

of the object in defendant’s hand and never described the size or shape of the object, only stating 

that it was dark. Defendant also notes that no physical or forensic evidence connected him to the 

firearm. The State responds that Sergeant Rellinger’s testimony established that defendant had 

actual possession of the firearm in his right hand while fleeing. The State cites defendant’s 
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“headlong flight” and the firearm’s proximity to defendant after he fell as additional facts 

supporting a conclusion that defendant possessed the firearm. 

¶ 20 The standard of review for a challenge to the sufficiency of the evidence is “whether, 

viewing the evidence in the light most favorable to the State, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” People v. Collins, 106 Ill. 

2d 237, 261 (1985). This standard applies whether the evidence is direct or circumstantial. People 

v. Wheeler, 226 Ill. 2d 92, 114 (2007). The trier of fact is responsible for resolving conflicts in the 

testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate 

facts. People v. Brown, 2013 IL 114196, ¶ 48. The reviewing court must allow all reasonable 

inferences from the record in favor of the prosecution (People v. Cunningham, 212 Ill. 2d 274, 280 

(2004)) and will not reverse a criminal conviction unless the evidence is “unreasonable, 

improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” People 

v. Jackson, 232 Ill. 2d 246, 281 (2009).

¶ 21 Defendant was convicted of one count of armed habitual criminal in violation of 720 ILCS 

5/24-1.7(a) (West 2014). To sustain its burden of proof on the armed habitual criminal charge, the 

State needed to prove that defendant possessed a firearm after having been convicted two or more 

times of certain enumerated offenses. 720 ILCS 5/24-1.7(a) (West 2014). The parties stipulated 

that defendant had prior convictions of residential burglary and burglary. Defendant does not 

contest that those two convictions sufficed to prove that he had twice been convicted of qualifying 

offenses. Thus, the sole issue on appeal is whether defendant possessed a firearm. 

¶ 22 “Possession of contraband may be actual or constructive.” People v. Anderson, 2018 IL 

App (4th) 160037, ¶ 31. “Actual possession is the exercise by the defendant of present personal 
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dominion over the [contraband]” and “exists when an individual exercises immediate and 

exclusive dominion or control over the [contraband].” People v. Schmalz, 194 Ill. 2d 75, 82 (2000).

“To establish constructive possession, the State must prove beyond a reasonable doubt that a 

defendant (1) knew a firearm was present; and (2) exercised immediate and exclusive control over 

the area where the firearm was found.” People v. Sams, 2013 IL App (1st) 121431, ¶ 10. “The trier 

of fact may rely upon reasonable inferences of possession and knowledge.” People v. Wright, 2013 

IL App (1st) 111803, ¶ 25. “Circumstantial evidence may be used to prove possession and 

knowledge.” Id. 

¶ 23 The State proved defendant guilty beyond a reasonable doubt. It is true that “[m]ere 

proximity is not sufficient evidence of actual possession.” Schmalz, 194 Ill. 2d at 81. But here there 

was proximity plus corroboration. A comparison to cases in this area establishes that there was 

sufficient evidence of possession to prove defendant’s guilt beyond a reasonable doubt. 

¶ 24 In People v. Sims, this court reversed a defendant’s conviction because the State had not 

proven possession beyond a reasonable doubt. People v. Sims, 2013 IL App (1st) 121431, ¶ 16. 

The defendant had been seen exiting a house where a firearm was later found. Id. ¶ 13. The 

defendant did not live at the residence, had not been seen in the room where the firearm was found, 

and no physical evidence connected the defendant to the firearm. Id. ¶ 16. Under these facts, this 

court could not conclude that the State had proved the “defendant had knowledge of the presence 

of the firearm or exercised immediate and exclusive control over the area where the firearm was 

found.” Id. 

¶ 25 Similarly, in People v. Wright, this court reversed the defendant’s conviction based on a 

lack of proof of possession. People v. Wright, 2013 IL App (1st) 111803, ¶ 26. There, the defendant 
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and another individual fled downstairs into a basement as police began to execute a search warrant. 

Id. at ¶¶ 6, 26. The police gave chase and the other individual fell over defendant as the two went 

down the stairs. Id. ¶ 26. A firearm was recovered from underneath the defendant at the bottom of 

the stairs. Id. Along with defendant and the individual who fell over him, there were three other

people in the basement. Id. No witness “saw a gun in [the] defendant’s hands or noticed him make 

any actions that would indicate that [the] defendant was discarding a gun.” Id. ¶ 26. The defendant 

did not live at the residence. Id. This court held that the State failed to provide sufficient evidence 

of the defendant’s guilt because it did not prove the defendant constructively possessed the gun 

attributed to him. Id.

¶ 26 In contrast, in People v. Anderson, the Fourth District held that sufficient evidence existed 

to support a finding of possession beyond a reasonable doubt. People v. Anderson, 2018 IL App 

(4th) 160037, ¶ 36. There, the defendant fled after being confronted by police. Id. ¶ 4. The 

defendant’s hands were tucked inside towards the front of his waistband as he fled from the police. 

Id. ¶ 33. The defendant was ultimately apprehended, and “while he was still on the ground being 

secured, the gun was found two to three feet away.” Id. The court concluded that it was “reasonable 

for the jury to believe [the] defendant was armed with the handgun while he was being pursued by 

the police.” Id. 

¶ 27 The facts here are much closer to Anderson. In fact, the State here presented a stronger case 

than in Anderson. There was not only the flight and the proximity of the weapon to where 

defendant was apprehended, but Sergeant Rellinger specifically testified that moments before 

defendant fell, he discarded a “dark object” that made a “metallic sound” as it hit the ground. See

People v. Howard, 29 Ill. App. 3d 387, 389 (1975) (explaining that dominion can be established 
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where a defendant is “seen throwing [the contraband] away”); contra Wright, 2013 IL App (1st) 

111803, ¶ 26 (explaining that no witness saw the defendant “make any actions that would indicate 

that [he] was discarding a gun”). Defendant fled from police, discarded a “dark object” that made 

a “metallic sound” when hitting the ground, and was apprehended inches away from a handgun.

The totality of these circumstances support the reasonable inference that defendant possessed a 

firearm as he ran from police. Thus, he was proven guilty of armed habitual criminal beyond a 

reasonable doubt. 

¶ 28 Defendant’s next argument is that trial counsel was ineffective because trial counsel failed 

to file a motion to suppress evidence “where the police stopped [defendant] without reasonable 

suspicion and his flight from the police did not convert the encounter into a valid and legal stop.”

Defendant argues that the firearm was discovered while he was seized and after his flight. The 

State responds that any motion to suppress would have been futile because defendant dropped the 

firearm prior to any seizure. 

¶ 29 Claims of ineffective assistance of counsel are evaluated under the two-pronged test

announced in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court 

in People v. Albanese, 104 Ill. 2d 504, 525 (1984). Under Strickland, a defendant must show that 

his counsel’s representation fell below an objective standard of reasonableness and that the 

deficient performance prejudiced his defense. Strickland, 466 U.S. at 687; Albanese, 104 Ill. 2d at 

52.

¶ 30 Under the first prong of Strickland, a defendant must prove that counsel made errors so 

serious, and that counsel’s performance was so deficient, that counsel was not functioning as the 

“counsel” guaranteed by the sixth amendment. People v. Griffin, 178 Ill. 2d 65, 73-74 (1997). 
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Counsel’s performance is measured using an objective standard of competence under prevailing

professional norms. The defendant must overcome the strong presumption that the challenged 

action or lack of action might have been the product of sound trial strategy. People v. Sanchez, 169

Ill. 2d 472, 487 (1996). 

¶ 31 Under the second prong of Strickland, the defendant must establish prejudice. The 

defendant must prove that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. People v. Patterson, 2014 IL 

115102, ¶ 81. A reasonable probability is one that is sufficient to undermine confidence in the 

outcome. People v. Hale, 2013 IL 113140, ¶ 18.

¶ 32 Defendant’s ineffective assistance claim fails because a motion to suppress would have 

been futile. “[T]he failure to file a motion to suppress or the withdrawal of such a motion prior to 

trial does not establish incompetent representation when it turns out that the motion would have 

been futile.” People v. Givens, 237 Ill. 2d 311, 331 (2010). The merits of a motion to suppress in 

this case can be resolved by answering two questions: (1) When was defendant seized? and (2) 

Did defendant discard the firearm prior to the point he was seized? We conclude that defendant 

was seized when Sergeant Rellinger jumped on him, and that defendant discarded the firearm in 

the moments before he was seized. Because the firearm was discarded prior to any seizure, the 

fourth amendment was not implicated and a motion to suppress would have been futile.4

¶ 33 The fourth amendment guarantees the “right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. 

4 The parties also dispute whether defendant’s flight and the surrounding circumstances provided 

reasonable suspicion for Sergeant Rellinger to detain defendant. However, we can resolve the merits of 

defendant’s ineffective assistance claim without reaching that issue. 
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A seizure occurs when an officer, “by means of physical force or show of authority, has in some 

way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Generally, a 

“person has been seized within the meaning of the fourth amendment only when, in view of all the 

circumstances surrounding the incident, a reasonable person would have believed that he or she 

was not free to leave.” People v. Thomas, 198 Ill. 2d 103, 111 (2001). 

¶ 34 The United States Supreme Court has resolved whether a seizure occurs when a defendant 

takes flight instead of submitting to a show of authority. In California v. Hodari D., the Court 

stated the issue and resolution as follows: “The narrow question before us is whether, with respect 

to a show of authority ***, a seizure occurs even though the subject does not yield. We hold that 

it does not.” California v. Hodari D., 499 U.S. 621, 626 (1991). The Court applied that holding to 

a situation very similar to the situation in this case, where the Court stated that a seizure does not 

occur when an officer yells “ ‘Stop, in the name of the law!’ at a fleeing form that continues to 

flee.” Id. The respondent in Hodari D. fled in the face of an officer’s show of authority, discarding 

a baggie of cocaine before being tackled. Id. at 629. The Court held that the “cocaine abandoned 

while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence 

of it was properly denied.” Id. 

¶ 35 Illinois courts have applied Hodari D. on multiple occasions. See People v. Thomas, 198 

Ill. 2d 103, 112 (2001) (“Here, the defendant was not seized by Officer Melton’s attempted 

roadblock because he refused to halt and, instead, chose to run. He was seized only when physical 

force was applied after he was caught.”); People v. Cherry, 2020 IL App (3d) 170622, ¶ 30 (“In 

cases where a defendant flees immediately from an attempt to effectuate a stop or seizure, such 

as Hodari D. or Thomas, it is clear that there has been no submission to authority and thus no 
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fourth amendment encounter.”). Our supreme court has extended Hodari D. to situations where an 

initial illegal seizure occurs followed by a defendant’s flight wherein contraband is discarded. 

People v. Henderson, 2013 IL 114040, ¶ 44. In that situation, assuming the officer’s initial 

misconduct is not flagrant, the flight interrupts the causal connection between the initial illegality 

and the discovery of the contraband. Id. at ¶ 50. Thus, the discovered contraband is not the product 

of a fourth amendment violation. Id. 

¶ 36 Here, there was no seizure until defendant fell to the ground and Sergeant Rellinger jumped 

on him. By that time defendant had already discarded the firearm later located inches from his feet. 

Sergeant Rellinger clearly testified on this point, contrary to defendant’s assertion that “there was 

no evidence here that [defendant] abandoned or relinquished the gun during the chase or prior to 

the seizure.” The following colloquy occurred during Sergeant Rellinger’s direct examination: 

“Q. After the defendant tossed the item, dropped the item, what happened next? 

A. His pants fell down, and he tripped and fell to the ground.” 

Rellinger’s testimony, which the trial court found credible, established that defendant dropped the 

firearm before he fell to the ground. Thus, under Hodari D. and Thomas, there was no seizure 

when the gun was discarded and the fourth amendment was not implicated. Contra People v. 

McClendon, 2022 IL App (1st) 163406, ¶ 27 (holding that a motion to suppress should have been 

granted where the defendant “dropped the gun” after he “submitted to the officers’ authority, 

completing the seizure”).

¶ 37 Finally, in reply defendant argues that the evidence “suggests, at most, that [the firearm] 

fell from his waist or he dropped it when he tripped.” Defendant notes that the firearm was found 
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inches from his feet, negating any claim that he intended to abandon the firearm. Defendant 

concludes that the series of events “does not equate to an affirmative or intentional abandonment.”

¶ 38 Defendant cites no authority distinguishing between the intentional relinquishment or 

unintentional dropping of contraband during flight. Ill. S. Ct. R. 341(h)(7), (eff. October 1, 2020) 

(explaining that the argument section of the brief “shall contain the contentions of the appellant 

and the reasons therefor, with citation of the authorities and the pages of the record relied on”). In 

our view, it does not matter whether contraband is discarded intentionally or whether the 

contraband is accidentally dropped during flight. In either scenario, the defendant has lost control 

of the contraband prior to seizure, which is the moment when the fourth amendment is implicated. 

Thus, even assuming for the sake of argument that defendant accidentally dropped the firearm as 

he fell, the fourth amendment was not implicated at that time because defendant tripping, falling, 

and losing possession of the firearm was not caused by Sergeant Rellinger’s “physical force or 

show of authority.” Terry, 392 U.S. at 19 n.16. As a result, trial counsel was not ineffective for 

filing what would have been a futile motion.

¶ 39 Defendant’s final argument is that his 11-year sentence resulted from an abuse of the trial 

court’s discretion. Defendant argues that the “sentence is disproportionate to the nature of the 

offense” where the underlying act was “simple gun possession” and defendant “did not cause or 

threaten harm to anyone” or “use the firearm in a dangerous manner.” Defendant also points to the 

age of his criminal history, his employment, and the support of his family. Defendant asks that we 

reduce his sentence to a more appropriate term or remand for resentencing. 

¶ 40 The State responds that defendant forfeited his sentencing claim because he failed to object 

at the sentencing hearing or file a post-sentencing motion. The State further argues that the trial 
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court “properly reviewed and considered all of the mitigation submitted by defendant and imposed 

a sentence 19 years below the maximum.” The State concludes that the trial court did not abuse its 

discretion. 

¶ 41 The Illinois Constitution requires that sentences reflect the seriousness of the offense and

the objective of restoring the offender to useful citizenship. Ill. Const. 1970, art. I, § 11. A trial 

court’s sentencing decision is entitled to great deference, and it will not be disturbed on appeal 

unless the trial court abused its discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). A 

sentence will generally not be found to be an abuse of discretion if it is within the permissible 

statutory sentencing range for the offense, unless “it is greatly at variance with the spirit and 

purpose of the law or manifestly disproportionate to the nature of the offense.” People v. Fern, 

189 Ill. 2d 48, 54 (1999). The sentence imposed is entitled to great deference and weight because 

a trial court is in a better position to consider the defendant’s credibility, character, demeanor, 

mentality, age, social environment, and habits. Stacey, 193 Ill. 2d at 209. Because it is the trial 

court’s responsibility to weigh the competing factors, we cannot substitute our judgment for that 

of the trial court simply because we might balance the factors differently. People v. Streit, 142 Ill. 

2d 13, 19 (1991).

¶ 42 Defendant was sentenced on one count of armed habitual criminal, which is a Class X 

felony. 720 ILCS 5/24-1.7(b) (West 2014). The sentencing range for a Class X felony is “not less 

than 6 years and not more than 30 years.” 730 ILCS 5/5-4.5-25(a) (West 2014). Defendant’s 

11-year sentence is presumed proper because it falls within the permissible statutory range. People 

v. Knox, 2014 IL App (1st) 120349, ¶ 47. 
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¶ 43 Defendant neither objected to the trial court’s oral sentencing order nor did he file a motion 

to reconsider sentence. “The failure to file such a motion has been held to constitute a waiver of 

sentencing issues on appeal because it denies the circuit court the opportunity to correct any error 

that may have occurred and instead burdens the appellate court with the processing of 

potentially needless appeals.” People v. Gomez, 247 Ill. App. 3d 68, 70 (1993). Defendant 

recognizes this waiver and asks this Court to review the issue for plain error and ineffective 

assistance of counsel. 

¶ 44 Plain error is a narrow and limited exception to the general forfeiture rule. The exception 

is to be invoked only where a clear or obvious error occurred and: (1) the evidence is so closely 

balanced that the error alone threatened to tip the scales of justice against the defendant, regardless 

of the seriousness of the error, or (2) the error is so serious that it affected the fairness of 

defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of 

the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Under both prongs, defendant 

bears the burden of persuasion. People v. Hillier, 237 Ill. 2d 539, 545 (2010). The first step 

of plain error review is determining whether a clear or obvious error occurred.

¶ 45 Defendant faces an uphill battle in rebutting the presumption that his sentence is proper 

where no record was made below to establish an abuse of discretion. Defendant also faces 

numerous legal propositions that weigh against his claim. First, “the trial court is presumed to have 

considered the mitigating evidence contained in the record.” People v. Means, 2017 IL App (1st) 

142613, ¶ 16. On top of the general presumption, the trial court here expressly stated that it 

considered the “factors in aggravation and mitigation, the information in the presentence 

investigation, the arguments, [and] the statement made by the defendant.” All the information 
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defendant points to as mitigation on appeal was presented to the trial court and the trial court 

specifically stated that it considered the evidence in mitigation. 

¶ 46 Second, as a corollary, a defendant must make an affirmative showing to establish that a 

trial court failed to consider evidence in mitigation. People v. Brown, 2018 IL App (1st) 160924, 

¶ 23. Here, defendant has not made that affirmative showing and, instead, defendant relies on the 

sentence itself to make his excessive sentence claim. However, “[w]here mitigating evidence is 

presented to the trial court, it is presumed, absent some indication to the contrary, other than 

the sentence itself, that the court considered it.” People v. Sauseda, 2016 IL App (1st) 140134,

¶ 19. Because the mitigating evidence was presented to the trial court, and nothing in the record 

says otherwise, we presume the trial court considered the mitigating evidence. 

¶ 47 Finally, unable to point to any affirmative error in the trial court’s sentence, defendant’s 

argument boils down to a request that we reweigh the aggravating and mitigating evidence and 

reduce his sentence. We are prohibited from doing so. People v. Stacey, 193 Ill. 2d 203, 209 (2000) 

(“[T]he reviewing court must not substitute its judgment for that of the trial court merely because 

it would have weighed these factors differently.”). There was certainly evidence on both sides of 

the spectrum, and it was the trial court’s duty to weigh that evidence. However, defendant’s 

11-year sentence, which is closer to the minimum than it is the middle of the range, is not “greatly 

at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of 

the offense.” Fern, 189 Ill. 2d at 54. 

¶ 48 In short, we cannot find an abuse of discretion in the trial court’s sentencing judgment. 

Without error, there can be no plain error. And because preservation of the sentencing issue would 

not have changed the outcome of the appeal, defendant has failed to establish an ineffective 
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assistance claim. See People v. Rutledge, 409 Ill. App. 3d 22, 26 (2011) (explaining that without 

error a “defendant can establish neither plain error *** nor ineffective assistance of counsel”). 

¶ 49 III. CONCLUSION

¶ 50 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 51 Affirmed.