2021 IL App (1st) 181506-U 

No. 1-18-1506 

Order filed September 2, 2021

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, ) Appeal from the Circuit 

 ) Court of Cook County 

Plaintiff-Appellee, ) 

 ) 

 v. ) No. 14 CR 13552 (01) 

 ) 

NICHOLAS WALKER, ) 

 ) Honorable Allen F. Murphy, 

Defendant-Appellant. ) Judge, Presiding 

 

 JUSTICE MARTIN delivered the judgment of the court. 

 Presiding Justices Gordon and Reyes concurred in the judgment. 

ORDER

¶ 1 Held: Defendant did not meet burden to demonstrate plain error when the circuit court did not 

 abuse its discretion by sentencing defendant to 25 years for armed robbery and 8 years 

for aggravated discharge of a firearm. The circuit court abused its discretion in 

ordering that the sentences run consecutive. Defendant was not deprived of the effective 

assistance of counsel when counsel did not argue that the State had failed to prove 

predicate convictions for armed habitual criminal in support of a motion for 

directed finding when the State was permitted to reopen the evidence to present proof of 

predicate convictions.

¶ 2 Nicholas Walker appeals his sentence following his convictions for armed robbery with a 

firearm, aggravated discharge of a firearm, and armed habitual criminal (AHC). He also appeals 
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his convictions for AHC contending his counsel was ineffective for not arguing in a motion for 

directed finding that the State had failed to prove convictions for the predicate offenses.1

¶ 3 I. BACKGROUND

¶ 4 Codefendants Nicholas Walker and Ventreal Lewis2 were tried jointly before the bench.

As to Walker, the State proceeded on two counts of AHC, one count of armed robbery, one count 

of aggravated discharge of a firearm, and one count of aggravated assault. 

¶ 5 Allen Ross testified that he drove to his aunt’s house in Dolton, Illinois in the late evening 

of June 1, 2014, to pick up an air mattress. He parked in front of the home but left the windows 

down and the car running while he went inside. He spoke briefly with his aunt and her boyfriend 

before deciding he should return to his car as he noticed two men walking by across the street. 

Ross walked toward his car carrying the air mattress box over one shoulder and holding his cell 

phone in the other hand, which he was using to talk to his girlfriend, Michele. When he reached 

the sidewalk, he noticed the two men had come from across the street and were approaching him 

from either side. They both repeatedly stated, “What you got?” Ross then saw the man to his right, 

who he identified in court as Lewis, was holding a chrome revolver. Ross replied that he did not 

have anything, only the box he was holding. Lewis reached into Ross’s pocket and pulled out his 

keys. Lewis then opened the passenger door of Ross’s car. Wanting to fight him off, Ross moved 

toward Lewis but the other individual, who Ross identified in court as Walker, pulled a black 

revolver and said, “get back.” Walker then took the box and cell phone from Ross. Ross put his 

hands up. Walker and Lewis, seeming to ascertain that Ross had nothing they found worth stealing, 

started arguing with each other. 

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. 

2

Lewis has appealed separately.
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¶ 6 Ross ran back inside his aunt’s home and found her calling the police. Looking outside, 

Ross observed Walker and Lewis run down the street. Ross decided to follow them in his car. 

Walker and Lewis ran to a blue car parked down the street. Lewis entered the driver seat and 

Walker the passenger seat. They drove off and Ross pursued them. After a few turns, Ross saw 

and heard 4 or 5 shots fired from the passenger side of the blue car. As the chase continued, a 

marked police vehicle joined the pursuit following the blue car but ahead of Ross’s. Eventually, 

the blue car pulled to the right side of the street and came to a stop. The police vehicle stopped just 

behind it. Ross pulled to the left side of the street and stopped two car lengths behind. Ross saw 

Walker and Lewis run from the car on foot in opposite directions. 

¶ 7 Additional police officers arrived at the location where the cars stopped. Ross used an 

officer’s phone to call Michele. Michele informed Ross she was still on the line with his phone 

that Walker had taken and asked him to call her back on a different phone. A while later, Michele 

arrived at the scene and handed her phone to the police. Ross walked with officers down a nearby

alley where he saw a canine officer with their dog enter a garage and then emerge with Walker. 

Ross identified Walker as one of the men who robbed him. As he was being led to an ambulance, 

Walker told Ross, “this was nothing, [I]’ll be out soon, look [me] up on Facebook” and gave his 

name, Nick Walker. Police searched the garage and recovered Ross’s cell phone. 

¶ 8 The next day, Ross identified Walker in both a photo array and then a lineup. While at the 

police station, Walker used Michele’s phone to view Walker’s Facebook page. Upon viewing 

photos on Walker’s Facebook page, Ross recognized Lewis and informed police he was the second 

robber. The next day, Ross identified Lewis in a photo array. On June 18th, Ross identified Lewis 

in a lineup. 
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¶ 9 Michele Ross3 testified she was speaking with Ross by phone on the night of June 1, 2014. 

She heard Ross depart from his aunt’s house. Moments later she heard Ross say, “What’s up bro?” 

and a different voice say, “What you got?” and “Run your pockets.” She then heard Ross say he 

did not have anything. Another voice said, “Is this your car?” She then heard a scratching noise 

for some time, followed by car doors opening and closing. That was followed by the sound of a 

car struggling to start. Eventually, a running engine could be heard, and a voice said, “Drive, drive 

he behind us.” Michele continued to listen and was able to make out two people talking to each 

other and arguing about which way to turn. Michele heard gunfire and then what sounded like one 

side of a conversation in which the speaker was telling another person they would report their car 

stolen tomorrow but needed to get somewhere safe. Over a loudspeaker, she heard police direct 

the green Monte Carlo (Ross’s car) to stop chasing. She heard someone say they will pull over in 

a minute and run. Michele heard the scratching noise again. 

¶ 10 A short time later, Michele received a call from Allen and went to the location of the cars. 

She handed her phone to a police officer and explained it was on the line with Ross’s phone. Later, 

she saw a person being led to an ambulance. He said to look him up on Facebook, his name was 

Nick Walker, he will be out, and “this [is] what [I] do.” 

¶ 11 Dolton Police Officer Patrick Carr testified he was on patrol in a marked squad car around 

11:40 p.m. on June 1, 2014, when he received a call of an armed robbery in progress. As he headed 

toward the reported location, he saw two cars, a blue car followed by a green car, coming in the 

opposite direction at high speed. The cars turned left in front of Officer Carr. The passenger of the 

blue car pointed a handgun at Officer Carr. Through a series of turns, Officer Carr was able to 

maneuver behind the blue car and activated his lights and sirens. The blue car eventually stopped 

3

Michele and Allen married in between the time of the robbery and the trial.
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and the occupants “bailed,” running in different directions. Officer Carr stopped his vehicle and 

exited. Allen Ross arrived driving the green car that had been following. 

¶ 12 Officer Carr learned that Ross’s cell phone had been stolen. The police “pinged” Ross’s 

phone and went with a canine unit to search its location. The canine officer went into a garage and 

Walker was escorted out. An ambulance was called because Walker had been bitten on the arms

during his apprehension. Officer Carr went into the garage and found Ross’s cell phone. Officer 

Carr returned to the blue Impala and searched it. There, he found two handguns underneath the 

passenger’s seat, one chrome and one black. 

¶ 13 Dolton Police Detective Dave Crudup testified he went to the location of the abandoned 

blue Impala. Detective Crudup took custody of two revolvers from under the front passenger seat.

One was a stainless steel .38 caliber Smith & Wesson; the other a .22 caliber blue steel (black)

Regent revolver. The Regent revolver contained four live rounds and four discharge cartridge 

casings. Detective Crudup explained live rounds still contain a bullet while discharge cartridge 

casings remain after a bullet is fired. The Smith & Wesson revolver had four live rounds, but no 

empty cartridge casings. He identified both revolvers, live rounds, and discharge casings in court. 

¶ 14 The State rested after Detective Crudup’s testimony and admission of the exhibits 

presented. Walker’s counsel moved for a directed finding of acquittal arguing the State had failed 

to prove “the offenses” beyond a reasonable doubt. Counsel then added a specific argument 

regarding the count alleging the aggravated assault of Officer Carr. The trial court found that even 

in the light most favorable to the State, the evidence did not establish beyond a reasonable doubt 

that Walker pointed a handgun at Officer Carr. The court granted Walker’s motion on the 

aggravated assault count but denied it for all other counts. 
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¶ 15 Lewis called a witness, Sergeant Allbritton of the Dolton Police Department, to testify in 

his defense, but Walker did not present any witnesses or other evidence. Neither defendant elected 

to testify. The court asked the State if it wished to present any evidence in rebuttal. The State 

sought to admit two certified copies of Walker’s prior felony convictions. The court asked if the 

State was seeking to reopen its case in chief to present those exhibits because they were not rebuttal 

evidence. The State answered “yes,” and the court allowed the exhibits to be admitted in the State’s 

reopened case in chief over the objections of defense counsel. The court found Walker guilty of 

armed robbery with a firearm, aggravated discharge of a firearm, and two counts of AHC. 

¶ 16 At sentencing, defense counsel submitted that Walker had a supportive upbringing, 

graduated high school, had taken college courses, and was tutoring other inmates to obtain their

GED. Counsel described the crime as “stupidity at the greatest level,” but not reflective of who 

Walker is. He further noted that no one was hurt and “it was pretty much a run-of-the-mill armed 

robbery.” The court indicated it read the presentence report and noted Walker had a decent family 

background. But the court observed Walker’s criminal activity was escalating. He had prior felony 

convictions for driving with a suspended license, attempted residential burglary, and unlawful use 

of a weapon by a felon. The court did not find the robbery “run-of-the-mill” because Walker 

teamed up with Lewis and gunshots were fired as they tried to get away. The court then sentenced 

Walker to 10 years in prison for armed robbery plus a mandatory enhancement of 15 years because 

a firearm was used in the offense; a concurrent term of 10 years for AHC with the second AHC 

count merged; and a consecutive term of 8 years for aggravated discharge of a firearm.

¶ 17 Walker filed a motion to reconsider sentence, arguing that the court had not made the 

requisite finding that consecutive sentences were necessary to protect the public; nor would the 

record support such a finding. The court observed that Ross’s decision to pursue Walker and Lewis 
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was not smart, but the discharge of a firearm from the car during their getaway took the offense

“up a notch.” The court remarked, “Robbing somebody is one thing, gun shooting is another.” The 

court then concluded “because they fired a weapon during their getaway, I believe * * * that a 

consecutive sentence is needed to protect the public from further criminal conduct of these 

Defendants.” Thus, the court denied the motion to reconsider sentence. This appeal followed. 

¶ 18 On appeal, Walker argues the trial court abused its discretion by failing to consider his 

youth and personal history in mitigation and by imposing consecutive sentences. He further claims 

his trial counsel failed to render effective assistance by not moving for a directed finding on the 

AHC counts at the close of the State’s case in chief.

¶ 19 II. ANALYSIS

¶ 20 A. Sentencing 

¶ 21 Walker asserts two claims to argue that the trial court abused its discretion in imposing a 

33-year aggregate sentence: first, that the court failed to adequately consider the mitigating effects 

of his youth and personal history; and second, that the trial court improperly found consecutive 

sentences were warranted. On either basis, he requests this court to reduce his sentence under our 

authority provided in Supreme Court Rule 615(b)(4) or to remand for a new sentencing hearing in 

the circuit court.

¶ 22 1. Mitigation and Rehabilitative Potential

¶ 23 To support his first claim, Walker submits that he was 23 years old at the time of the 

offenses; he was ages 18 and 20 at the time of his prior felony offenses; the trial court did not 

mention his age at sentencing; scientific research shows the parts of the brain involved in behavior 

control are still developing into the mid-20s; courts have recognized that “youthful” offenders are 

less culpable than adults and have greater rehabilitative potential; and the 33-year aggregate 
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sentence is “only” seven years less than a de facto life-without-parole term. In addition, Walker 

argues the trial court did not give proper weight to mitigating factors and his rehabilitative potential 

as shown by his education, work experience, and future aspirations. Further, Walker avers his prior 

offenses were not violent and he had never been sentenced to prison before. As to this offense, 

Walker submits there was no finding that he personally fired a handgun or that the shots fired 

resulted in injury to a person or property. 

¶ 24 The State argues Walker forfeited his first sentencing claim by failing to raise the issues 

with specificity in his motion to reconsider sentence. To preserve a claim of sentencing error, the 

defendant must make a contemporaneous objection and raise the issue in a postsentencing motion. 

People v. Hillier, 237 Ill. 2d 539, 544 (2010). Walker replies that he did raise these issues in his 

motion to reconsider sentence because the motion stated that the court failed to properly consider 

his background. Alternatively, Walker urges us to review the claim under the plain error doctrine. 

¶ 25 We do not believe the motion to reconsider sentence raised these issues and, therefore, the 

contentions were not preserved for review. In Walker’s motion to reconsider sentence, the only 

assertion arguably addressing these issues stated “[t]he sentence is excessive in view of 

defendant’s background and his participation in the offense.” Although personal background 

naturally includes a person’s age and other details, the motion did not set forth any assertions like 

those presented on appeal necessary for us to conclude the claim was presented with the requisite

specificity to preserve the issue for review. See People v. Woods, 214 Ill. 2d 455, 470 (2005) 

(failure to specifically raise an issue in a posttrial motion forfeits the issue for review). Thus, the 

trial court was not alerted that Walker was making this argument simply by the broad reference to 

background. See People v. Jones, 2015 IL App (1st) 121016, ¶ 106, vacated on other grounds (a 
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“boilerplate phrase” lacking specificity does not preserve a contention for appeal). Therefore, 

Walker’s first sentencing claim is forfeited.

¶ 26 When a defendant seeks review of an unpreserved claim of error, the plain error doctrine 

allows us to consider the claim when the defendant first shows a “clear or obvious error” occurred. 

People v. Naylor, 229 Ill. 2d 548, 593 (2008). Upon showing a clear or obvious sentencing error, 

a defendant must then show “either that (1) the evidence at the sentencing hearing was closely 

balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing.” 

Hillier, 237 Ill. 2d at 545, citing People v. Hall, 195 Ill.2d 1, 18 (2000). The defendant bears the 

burden of persuasion under both prongs of the plain error doctrine. Naylor, 229 Ill. 2d at 593. The 

first step is to discern whether any clear or obvious error occurred at sentencing at all. People v. 

Eppinger, 2013 IL 114121, ¶ 19. Absent any error, there can be no plain error and the defendant’s 

forfeiture will be honored. Id. 

¶ 27 To assess whether an error occurred here, we observe an important distinction in Walker’s

first claim. While the claim appears under a single heading, it sets forth two distinct lines of 

argument. One centers on his age alone, relies on authority regarding constitutional considerations 

for juvenile offenders, and contends similar considerations should apply in sentencing young 

adults because “brain development has not reliably reached adult levels of functioning until well 

into the third decade of life.” The other line of argument centers on mitigating factors specific to 

the offense or Walker’s individual background and were contained in his presentence report or 

otherwise presented at his sentencing hearing. 

¶ 28 Walker’s age-related line of argument is not specific to him as an individual and, by its 

own assertions, would apply for young adults as a class. It also relies on authority rooted in the 

eighth amendment to the United States Constitution and the proportionate penalties clause of the 
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Illinois Constitution regarding constitutional limits on sentencing for juvenile offenders. Namely, 

the eighth amendment prohibits mandatory life-without-parole for juvenile offenders (Miller v. 

Alabama, 567 U.S. 460 (2012)) or a term of years that amounts to the functional equivalent, 

referred to as de facto life, which is a prison term greater than 40 years (People v. Buffer, 2019 IL 

122327, ¶ 41) unless the court gives special consideration to a juvenile’s youth and its attendant 

circumstances (People v. Holman, 2017 IL 120655, ¶¶ 43-44; People v. Lusby, 2020 IL 124046, 

¶¶ 33, 52). But the United States and Illinois Supreme Courts have only recognized these 

protections for juvenile offenders, that is persons under age 18 at the time of their offense. People 

v. Harris, 2018 IL 121932, ¶ 61. Plainly, Walker was not under age 18 at the time of this robbery.

Some appellate court decisions have allowed young adults to assert similar age-based claims 

challenging their sentences as applied under the proportionate penalties clause. See, e.g., People 

v. Minniefield, 2020 IL App (1st) 170541 (remanding for 19-year-old offender to develop the 

record in postconviction proceedings to demonstrate how the evolving science of brain 

development in young adults may affect his 50-year sentence). But these considerations have not 

been extended to offenders who were over age 21. See People v. Rivera, 2020 IL App (1st) 171430, 

¶¶ 25-27 (declining the same for offenders over 21). Thus, with Walker being age 23 at the time 

of the robbery, our precedent does not support that the trial court was required to give special 

consideration to his youth and its attendant circumstances in sentencing. Furthermore, even if these 

constitutional protections did extend to a 23-year-old offender, Walker’s sentence is below the 

40-year threshold that triggers such protections. For these reasons, the circuit court was not 

required to give special consideration to Walker’s age and, therefore, did not err on this basis. 

¶ 29 For the remaining part of Walker’s claim based on factors specific to him, we review the 

trial court’s sentencing decision for an abuse of discretion. People v. Alexander, 239 Ill. 2d 205, 
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211 (2010). A sentence is considered an abuse of discretion where it is “greatly at variance with 

the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.”

(Internal quotation marks omitted.) Id. The trial court has broad discretion when imposing a 

sentence, and its sentencing decisions are given great deference because the trial judge, having 

observed the defendant and the proceedings, is in a better position to consider the defendant’s 

credibility, demeanor, moral character, mentality, social environment, habits, and age. Id. at 212-

13. 

¶ 30 Walker argues the trial court abused its discretion in sentencing because the court made no 

remarks concerning factors in mitigation and failed to consider evidence of his rehabilitative 

potential. He also argues mitigating factors and his rehabilitative potential render his sentence 

excessive. Specifically, Walker notes there was no finding that he fired a weapon; no one was 

injured; his prior offenses were not violent; he had never been incarcerated before; and substance 

abuse may have contributed to his criminality. He submits his “high” rehabilitative potential is 

shown by his completion of high school; taking college courses; work history; drug treatment; and 

tutoring of other detainees working to obtain their GEDs. 

¶ 31 We presume that the trial court considered all relevant factors and any mitigation evidence 

presented. People v. Brewer, 2013 IL App (1st) 072821, ¶ 55. The trial court “has no obligation to 

recite and assign value to each factor.” People v. Perkins, 408 Ill. App. 3d 752, 763 (2011). When 

a defendant argues the court failed to take certain factors into consideration, the defendant “must 

make an affirmative showing the sentencing court did not consider the relevant factors.” People v. 

Burton, 2015 IL App (1st) 131600, ¶ 38. Apart from noting the trial court did not specifically 

mention mitigating factors or his rehabilitative potential, Walker makes no showing that the court 

did not consider them. Rather, he reiterates the mitigation evidence presented in his presentence 
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report and at the sentencing hearing to assert his sentence is excessive. We find this insufficient to 

make an affirmative showing that the trial court failed to consider these factors. As noted, the trial 

court is not required to recite each factor and we presume it considered all relevant information, 

including information presented in a presentence report. People v. Sauseda, 2016 IL App (1st) 

140134, ¶ 20. Thus, the trial court’s lack of specific remarks is not a basis to find it abused its 

discretion. 

¶ 32 We next address Walker’s contention that his sentence is excessive. A sentence should 

reflect the “seriousness of the offense” and “the objective of restoring the offender to useful 

citizenship.” Ill. Const. 1970, art. I, § 11; People v. Jones, 2015 IL App (1st) 142597, ¶ 38. But 

the most important factor in sentencing involves the seriousness of an offense, not mitigating 

evidence. People v. Harmon, 2015 IL App (1st) 122345, ¶ 123. A sentence within statutory 

guidelines is presumptively valid. People v. Hauschild, 226 Ill. 2d 63, 70 (2007). Walker’s 25-year 

sentence for armed robbery with a firearm falls well within the statutory range of 21 to 45 years 

(6 to 30 years as a class X offense plus a mandatory 15-year enhancement). 720 ILCS 5/18-2 (West 

2014); 730 ILCS 5/5-4.5-25(a) (West 2014). Likewise, his 8-year sentence for aggravated 

discharge of a firearm falls within the statutory range of 4 to 15 years. 720 ILCS 5/24-1.2(b) (West 

2014); 730 ILCS 5/5-4.5-30(a) (West 2014). With consecutive sentences, Walker faced up to 60 

years in prison and a minimum of 25. 

¶ 33 Thus, Walker’s sentences are far closer to the minimum than the maximum, especially for 

armed robbery with a firearm, his most serious conviction. “The phrase ‘excessive sentence’ is 

reserved for a sentence within the statutory range but without regard for a particular defendant’s 

rehabilitative potential.” (Internal quotation marks omitted.) People v. McKinley, 2020 IL App 

(1st) 191907, ¶ 71. As noted, we presume the trial court considered evidence of Walker’s 
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rehabilitative potential and he has not made an affirmative showing to the contrary. The existence

of mitigating factors does not require the trial court to sentence close to the minimum. People v. 

Flores, 404 Ill. App. 3d 155, 158 (2010). And “[e]ven if no aggravating factors are present, [a] 

defendant is not necessarily entitled to a minimum sentence.” People v. Cook, 279 Ill. App. 3d 

718, 727 (1995). Nor is a defendant entitled to a near minimum sentence when a mandatory 

enhancement applies. People v. Harvey, 162 Ill. App. 3d 468, 475 (1987). Accordingly, we do not 

find the sentences imposed here to be greatly at variance with the spirit and purpose of the law or 

manifestly disproportionate to the nature of the offenses. Walker’s argument effectively asks us to 

reweigh the mitigating factors and substitute our judgment for that of the trial court, which we will 

not do. People v. Jones, 2015 IL App (1st) 142597, ¶ 40. Therefore, we find no abuse of discretion 

and, thus, no error. 

¶ 34 Finally, because we find no error occurred, Walker has not met his burden on the first prong 

of plain error, and we honor the forfeiture of his first sentencing claim. 

¶ 35 2. Consecutive sentences 

¶ 36 We turn to Walker’s preserved claim of error regarding consecutive sentences. Walker 

argues the trial court abused its discretion in finding that consecutive sentences were necessary to 

protect the public from his further criminal conduct. 

¶ 37 In cases where consecutive sentences are, as here, not mandatory, concurrent sentences 

must be imposed, unless, considering the nature and circumstances of the offense and the history 

and character of the defendant, consecutive sentences “are required to protect the public from 

further criminal conduct by the defendant.” 730 ILCS 5/5-8-4(c)(1) (West 2014). Consecutive 

sentences should be imposed sparingly (People v. Buckner, 2013 IL App (2d) 130083, ¶ 35), and 

are reserved for exceptional cases (People v. Phagan, 2019 IL App (1st) 153031, ¶ 116). To impose 
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discretionary consecutive sentences, the trial court need not use any particular words so long as 

the record indicates it believed consecutive sentences were necessary to protect the public. 

Buckner, ¶ 37. Nevertheless, the trial court must adequately articulate the basis for that conclusion. 

Id. ¶ 35. A “boilerplate” ruling (Phagan, ¶ 125) or perfunctory references to the defendant’s 

background and the trial proceedings are insufficient (People v. Dorosz, 217 Ill. App. 3d 1016, 

1022-23 (1991)). We review the trial court’s imposition of consecutive sentence for an abuse of 

discretion. Buckner, ¶ 36. An abuse of discretion has occurred if the record does not support the 

trial court’s determination that consecutive sentences were necessary to protect the public. Id. 

¶ 38 Here, the trial court did not set forth its basis for imposing consecutive sentences at 

Walker’s sentencing hearing. Only after Walker raised the issue in his motion to reconsider 

sentence did the trial court make an express finding that consecutive sentences were necessary to 

protect the public from Walker’s future criminal conduct. The court stated its basis for that 

conclusion was that the defendants fired a handgun during the getaway as Ross pursued them. 

¶ 39 While the trial court made an express finding that consecutive sentences were necessary to 

protect the public, we find the asserted basis insufficient for that conclusion. The finding was little 

more than a “boilerplate” conclusion based on the fact a firearm was discharged. The court did not 

articulate why the discharge of a firearm in this case made consecutive sentences necessary to 

protect the public from Walker’s future criminal activity or provide any other basis. 

¶ 40 In addition, the fact that a handgun was fired is inherent in the offense of aggravated 

discharge of a firearm. Generally, “a factor implicit in the offense for which the defendant has 

been convicted cannot be used as an aggravating factor in sentencing for that offense.” People v. 

Phelps, 211 Ill. 2d 1, 11 (2004). This rule is not intended to apply rigidly, as sentences vary in 

accordance with the circumstances of the particular case. People v. Williams, 2019 IL App (1st) 
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173131, ¶ 24. For example, the degree of harm inflicted on the victim may be considered as an 

aggravating factor in imposing a sentence even when serious bodily harm is implicit in the offense. 

Sauseda, 2016 IL App (1st) 140134, ¶ 17. But the reasoning here is not like that. Rather, the court 

relied on the mere fact that a firearm was discharged, not any circumstances that aggravated this 

discharge of a firearm. “The defendant bears the burden of establishing that a sentence was based 

on an improper consideration, and we will not vacate a sentence based upon an improper factor if 

we can determine from the record that the weight placed on the improperly considered factor was 

so insignificant that it did not lead to a greater sentence.” People v. Sherman, 2020 IL App (1st) 

172162, ¶ 52. Here, the court clearly imposed a greater sentence based on an improper factor. 

¶ 41 Moreover, the trial court’s finding does not reflect a “sparing” imposition of consecutive 

sentences. A substantial minimum sentence already applied due to the 15-year mandatory 

enhancement applied for the use of a firearm in the offense of armed robbery. The court had already 

considered aggravating factors in its sentencing determination on the individual offenses. And the 

discharge of a firearm was inherent in the offense for which the sentence was ordered to run 

consecutive. Under these circumstances, we believe the sparing imposition of consecutive 

sentences requires more exceptional rationale than the mere fact a handgun was fired. No such 

basis was stated, nor is one apparent from the record. 

¶ 42 For these reasons, we find the record does not support the trial court’s determination that 

consecutive sentences were necessary to protect the public from Walker’s future criminal activity. 

Accordingly, the trial court’s imposition of consecutive sentences was an abuse of discretion. 

Under our authority provided in Supreme Court Rule 615(b)(4), we modify Walker’s consecutive 

sentence for aggravated discharge of a firearm to run concurrent to his other convictions in this 

case.
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¶ 43 B. Directed finding on armed habitual criminal

¶ 44 Last, Walker argues his counsel was ineffective for not moving for a directed finding on 

the AHC counts at the close of the State’s case in chief. The record shows Walker’s counsel moved 

for a directed finding on “the offenses” but only offered a specific argument regarding the 

aggravated assault of Officer Carr. Counsel did not specifically request an acquittal on the AHC 

counts based on the State’s failure to prove predicate convictions to sustain an AHC conviction. 

Indeed, the State had not presented evidence of predicate convictions by that time. But the State 

later requested to reopen the evidence. Over objection, the circuit court permitted the State to 

present certified copies of Walker’s prior convictions. 

¶ 45 To establish that a defendant was deprived of his constitutional right to the effective 

assistance of counsel, the defendant must satisfy the two-pronged Strickland test: he must show 

(1) counsel’s performance fell below an objective standard of reasonableness and (2) a reasonable 

probability the result of the proceeding would have been different, but for counsel’s errors. People 

v. Peterson, 2017 IL 120331, ¶ 79, citing Strickland v. Washington, 466 U.S. 668 (1984). 

¶ 46 We believe the motion for directed finding on behalf of Walker included the AHC counts 

despite the lack of a specific argument given in support. Counsel stated he was requesting acquittal 

for “all offenses” and the court clearly understood the motion to include all counts. It expressly 

denied the motion on all other counts after granting it with respect to the aggravated assault count.

Thus, the record rebuts that Walker’s counsel failed to move for a directed finding on the AHC 

counts. At most, he failed to offer a specific argument on the AHC counts. But failure to make an 

argument in support of a directed finding does not violate a defendant’s right to effective assistance 

of counsel. People v. Davis, 228 Ill. App. 3d 123, 129 (1992). 
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¶ 47 Even if Walker’s counsel had not moved for a directed finding on the AHC counts, we 

could not conclude the decision was objectively unreasonable or prejudicial since the trial court 

had discretion to reopen the evidence for the State to cure the deficiency in its case. In fact, 

refraining from requesting a directed finding may be a reasonable strategy in those circumstances. 

See People v. Bennett, 331 Ill. App. 3d 198, 204-05 (2002) (Kuehn, J. specially concurring). The 

motion would call attention to the defect and counsel could expect most courts to be inclined to 

permit additional evidence. Id. Likewise, a decision to nevertheless move for a directed finding 

under these circumstances may also be reasonable strategy. People v. Berrier, 362 Ill. App. 3d 

1153, 1166-68 (2006). 

¶ 48 To be sure, “[t]he trial court retains discretion to grant a motion to reopen the evidence 

even after a motion for directed finding, and absent an abuse of that discretion, its decision will 

not be overturned on appeal.” Id. at 202. Factors to consider on a motion to reopen the proofs

include: (1) whether the failure to introduce the evidence was inadvertent; (2) any surprise or unfair 

prejudice to the other party; (3) the importance of the new evidence; and (4) any cogent reasons 

that would have justified denying the motion to reopen. People v. Gonzalez-Carrera, 2014 IL App 

(2d) 130968, ¶ 21. In this case, the State’s failure to introduce evidence of Walker’s predicate 

convictions appears to have been inadvertent and he does not contend otherwise. Nor could Walker 

have been surprised or unfairly prejudiced since he does not dispute the validity of the predicate 

convictions. The certified copies of conviction were important because they prove an element of 

AHC. And Walker does not submit any cogent reason that would have justified denying a motion 

to reopen the proofs. Thus, even if counsel had made arguments in support of a directed finding 

on the AHC counts, the trial court would have likely permitted the State to present additional 

evidence of the predicate convictions. Consequently, there is no reasonable probability that Walker 
No. 1-18-1506 

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would not have been convicted of the AHC counts and, therefore, he cannot establish that he was 

deprived of the effective assistance of counsel.

¶ 49 III. CONCLUSION

¶ 50 Based on the foregoing, we find the trial court did not abuse its discretion in sentencing

Walker to the terms imposed for each offense, but we find the court erred in ordering the sentence 

for aggravated discharge of a firearm to run consecutive. We also find that Walker was not 

deprived of the effective assistance of counsel. We affirm the judgment of the circuit court but 

modify the sentences to run concurrently. 

¶ 51 Affirmed as modified.