Illinois Official Reports

Appellate Court

People v. Martinez, 2021 IL App (1st) 182553

Appellate Court 

Caption

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

RAUL MARTINEZ, Defendant-Appellant. 

District & No. First District, Sixth Division 

No. 1-18-2553

Filed September 24, 2021

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 16-CR-8493; the 

Hon. Alfredo Maldonado, Judge, presiding.

Judgment Affirmed in part, vacated in part, and remanded with directions.

Counsel on

Appeal

James E. Chadd, Douglas R. Hoff, and Michael H. Orenstein, of State 

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

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg 

and Phyllis Warren, Assistant State’s Attorneys, of counsel), for the 

People.

Panel JUSTICE ODEN JOHNSON delivered the judgment of the court, with 

opinion.

Presiding Justice Pierce and Justice Mikva concurred in the judgment 

and opinion. 
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OPINION

¶ 1 Defendant Raul Martinez was convicted of first degree murder and unlawful use of a 

weapon by a felon (UUWF) following a jury trial. He was sentenced to an aggregate, 

consecutive prison term of 105 years for murder, 25 years for a firearm enhancement, and a 

Class X sentence of 30 years for UUWF. On appeal, defendant contends that (1) the trial court 

erred in denying his motion in limine to present Lynch evidence of decedent’s 2006 robbery 

conviction to support defendant’s self-defense claim (see People v. Lynch, 104 Ill. 2d 194 

(1984)) and (2) his Class X sentencing for UUWF was improper because it rests on an improper 

double enhancement and an offense that is no longer criminal. For the following reasons, we 

affirm in part and remand for resentencing on defendant’s UUWF conviction.

¶ 2 I. BACKGROUND

¶ 3 As defendant’s issues raised on appeal concern questions of law, we will only recite such 

facts as are necessary to decide this appeal. Defendant’s convictions and sentences stem from 

the shooting death of Robert Roseneau (decedent) on May 2, 2016. Defendant did not dispute 

that he shot and killed decedent; rather, he contended at trial that it was self-defense rather than 

first degree murder as alleged by the State.

¶ 4 A. Pretrial Proceedings

¶ 5 Prior to trial, both the State and defendant filed motions in limine, and a hearing was held 

on April 6, 2018. The State moved to impeach defendant with three prior convictions: UUWF, 

possession of a stolen motor vehicle (PSMV), and a 2009 robbery. The trial court did not allow 

the introduction of the UUWF for impeachment, finding that it was too prejudicial. However, 

the trial court allowed the introduction of the PSMV and robbery convictions.

¶ 6 Defendant moved to admit Lynch evidence of decedent’s prior convictions in support of 

the self-defense answer he filed on February 28, 2018. Specifically, he moved to admit 

decedent’s prior convictions for aggravated battery of a peace officer in 2012 and a May 22, 

2006, robbery conviction. That offense stemmed from an incident on February 14, 2006, where 

decedent grabbed a woman’s purse and struggled with her before pushing her to the ground 

and absconding with her purse. The trial court allowed the introduction of decedent’s 

conviction for aggravated battery of a peace officer but disallowed introduction of the robbery 

conviction. The trial court found that the robbery conviction was too remote and additionally 

that the force used in pushing the woman to the ground was “motivated for gain and not just 

simply a propensity of violence.” The matter then proceeded to trial.

¶ 7 B. Trial Proceedings

¶ 8 Briefly stated, the evidence presented at trial established that defendant shot and killed 

decedent just before 10:30 p.m. on May 2, 2016, near Pulaski Road and Armitage Avenue in 

Chicago. The State presented the testimony of decedent’s sister, who identified a photo of 

decedent as well as an image of him captured on video that night. The State also presented the 

testimony of several Chicago police officers who investigated the shooting and arrested 

defendant. Specifically, Officer Chris Meilinger testified that he and Officer Przemyslaw 

Worwa were on routine patrol near the area in a marked SUV that was equipped with a 
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dashboard camera and an inside camera system. As they drove west on Armitage Avenue 

towards Pulaski Road, Officer Meilinger heard multiple gunshots coming from north of their 

location. He saw a group of people at a Shell gas station (Shell) “ducking and diving for cover.” 

When they turned north on Pulaski Road, Officer Meilinger saw defendant approximately five 

feet from where decedent’s body was discovered before he ran west across Pulaski Road and 

into the alley north of Armitage Avenue. As defendant ran with the officers in pursuit, he 

dropped a 45-caliber semiautomatic handgun to the ground. Defendant ran south into a fencedin area behind Trier Lads Bar (Trier) located at 4010 West Armitage Avenue, where he was 

subsequently arrested.

¶ 9 The State published several video clips during its case-in-chief from (1) Shell’s “Camera 

5,” (2) Shell’s “Camera 7,” (3) the Redflex red light camera on Armitage Avenue, (4) the dash 

camera video from Meilinger’s vehicle, (5) Trier’s camera, and (6) the police vehicle’s rear 

passenger camera. Among other things, the Shell videos captured decedent interacting with 

people at Shell, defendant walking north across the front of Shell’s store, Officer Meilinger’s 

vehicle turning north on Pulaski Road from Armitage Avenue, decedent walking west through 

Shell and turning towards 2015 North Pulaski Road, defendant walking towards the same area 

that decedent went to, and defendant running back west across Pulaski Road and into the alley 

north of Armitage Avenue with the police in pursuit. The red-light camera captured defendant 

walking west on Armitage Avenue and turning into Shell and walking past the store, as well 

as Officer Meilinger’s vehicle turning north on Pulaski Road from Armitage Avenue. The dash 

camera captured defendant’s flight down the alley and his arrest. Trier’s camera also captured 

defendant’s arrest, and the rear passenger camera captured defendant inside the police vehicle 

after his arrest.

¶ 10 The evidence technician, Detective Abdalla Abuzanat, testified that he processed the crime 

scene and recovered seven fired cartridge cases and two fired bullet fragments from the 

sidewalk in front of 2015 North Pulaski Road and Shell’s adjacent alley. He saw two bags of 

suspect cannabis and possible blood stains in the area of the fired fragments. Detective 

Abuzanat also recovered defendant’s gun from the alley behind 4010 West Armitage Avenue 

and subsequently recovered defendant’s black hoodie.

¶ 11 Detective Richard Green administered a gunshot residue test to both of defendant’s hands, 

which established the presence of gunpowder. Dr. Timothy Fagan, the medical examiner, 

testified that he supervised decedent’s autopsy. He opined that decedent died from multiple 

gunshot wounds: (1) two different bullets entered a “combined” entrance wound on the left 

side of the victim’s chest; one traveled through the diaphragm and the heart before lodging in 

the lower right lung, and the other traveled through the diaphragm and into the abdominal 

cavity, where it was recovered from the loop of the small bowel; (2) a “through and through” 

gunshot wound to the back of the right forearm where the bullet exited the front right forearm; 

(3) a “through and through” gunshot wound to the back of the left forearm where the bullet 

exited the front left forearm; (4) a gunshot wound to the left buttock, which exited the inside 

of the left thigh; (5) a gunshot wound to the back of the right thigh with the bullet recovered 

from inside the thigh; (6) a graze wound to the inside right thigh; (7) a gunshot wound to the 

back of the right thigh, which exited the front; and (8) a “through and though” gunshot wound 

to the penis. Additionally, Dr. Fagan testified that a bullet from a prior shooting was recovered

from decedent’s back and there was cocaine in his system. On cross-examination, he stated 
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that decedent was 5 feet, 11 inches tall and weighed 269 pounds, agreed that a possible side 

effect of cocaine was aggression, and agreed that there was no evidence of close-range firing.

¶ 12 The State also presented testimony from Justyna Cioch, a firearms expert, who examined 

the gun, shell casings, bullets and bullet fragments that were recovered. Five of the six bullets 

recovered from decedent’s body were fired from the recovered gun, as were the shell casings 

and bullet jacket fragment. Additionally, the magazine recovered with the gun had a total 

capacity of seven rounds.

¶ 13 Officer Russell Zagorski testified that he responded to a call of a gunshot victim on May 

2, 2016, at approximately 10:30 p.m. near 2015 North Pulaski Road. When he arrived, he saw 

a small crowd around decedent’s body. He did not see any weapons in the area around the 

victim, nor did he observe anyone in the crowd with a weapon. On cross-examination, Officer 

Zagorski agreed that he did not know if anyone in the crowd removed anything from decedent 

prior to his arrival and further stated that the crowd was “uncooperative” and “talking over 

each other.”

¶ 14 The parties stipulated that defendant had three previous felony convictions and provided 

the case numbers in open court.

¶ 15 After the trial court denied defendant’s motion for a directed verdict, Chicago police officer 

Jason Cloherty testified on defendant’s behalf. He testified that on April 30, 2011, when other 

officers brought the “highly agitated” decedent to the police station, he went to the processing 

room as backup for the search of decedent. Decedent refused to be searched and pushed Officer 

Steven Gregory in the chest and punched him in one of his ears. In response, Officer Gregory 

struck decedent, who fell to the floor. While on the floor, decedent kicked Officer Cloherty in 

the shins before being tased by another officer. 

¶ 16 Officer Gregory testified consistent with Officer Cloherty about the 2011 incident at the 

police station. He initially stopped decedent at a gas station on Pulaski Road and Armitage 

Avenue for having tinted windows. Officer Gregory, who had previous encounters with 

decedent, arrested him and took him to the police station after learning that decedent was 

driving on a suspended license. Because decedent was “very agitated,” he asked Officer 

Cloherty to assist in conducting a custodial search.

¶ 17 Defendant testified that at approximately 10 p.m. on May 2, 2016, he was walking near

Diversey Avenue and Harding Avenue, leaving from his aunt’s house, and heading to Cortland 

Street and Pulaski Road where his girlfriend lived. She lived approximately 10 blocks away, 

but he did not remember all the street names in the area. He admitted that he had a gun and 

stated that he carried it for his “safety and protection.” Defendant turned south on Hamlin 

Avenue from Diversey Avenue and began walking towards Cortland Street. As he approached 

Armitage Avenue, he saw a group of people across the street. According to defendant, they 

were looking at him and said something that he could not hear, and then two people started 

walking towards him. To avoid them, defendant turned right on Armitage Avenue, toward 

Pulaski Road. When he reached Pulaski Road, defendant cut through the Shell to the adjacent 

alley and put his hood on as he walked west down the alley toward the Pulaski Road sidewalk.

¶ 18 He intended to walk down Pulaski Road to Dickens Avenue, Dickens Avenue to Hamlin 

Avenue and then Hamlin Avenue back to Diversey Avenue. Defendant did not see anyone at 

the mouth of the alley as he walked down it, and he turned to look at the gas station to see if 

anyone from the group had followed him.
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¶ 19 As he looked forward, defendant saw a man (decedent) from eight feet away come out of 

nowhere. Decedent was “real big and heavy”; defendant was 5 feet, 5 inches tall, and weighed 

150 pounds. He stated that decedent walked towards him and said, “motherf***, what are you 

doing over here. I’m going to smoke your b*** a***.” Defendant understood that to mean that 

decedent was going to kill him. He stated that decedent’s hands were by his waist, and he 

“thought” he saw a gun in decedent’s hands. Decedent approached him, and he was afraid. 

Defendant took his gun from his waistband and began shooting at decedent. When he fired his 

gun the first time, decedent was six feet away. Defendant started running after he fired the first 

shot and kept shooting as he ran because he was scared and thought decedent was going to kill 

him. Defendant stated that he did not see where he was shooting and did not know how many 

times he fired his gun. Defendant ran west across Pulaski Road and into an alley. As he ran, he 

heard a car following him and saw that it was a police car when he looked back. He dropped 

the gun and tried to get as far as he could from it. Defendant was arrested shortly thereafter.

¶ 20 On cross-examination, defendant testified that he lived at 1458 South Canal and took the 

train to visit his aunt earlier that day near Diversey Avenue and Harding Avenue. When he got 

off the train, he went to Monticello Avenue and Argyle Street, a few blocks from his aunt’s 

house, to retrieve his gun from a gangway next to an empty house. Defendant stated that he 

bought the gun two months earlier for $250 from a drug user for his protection. He never 

checked to see if the gun was loaded and denied buying ammunition for it. Defendant left the 

gun in the gangway because he “did not want to have it on [him] all the time.” He 

acknowledged that he was shown in the Shell videos but denied that he was covering his face 

in the video. He also acknowledged that the video showed decedent “calmly” walking around 

the gas station parking lot and talking with a woman who was getting into a car. Defendant 

also acknowledged that the video showed him walking west through the gas station’s alley, 

heading in the same direction that decedent walked in earlier. He further admitted that less than 

10 seconds later, the video showed him running west across Pulaski Road and into the alley. 

Defendant also stated that he did not see a gun in decedent’s hands and that decedent was not 

facing him when he shot him the first time. He denied that decedent turned away as defendant 

was shooting at him and further stated that he was 10 feet from the victim when he stopped 

shooting. When defendant turned south in the alley into the fenced-in area behind Trier, there 

was nowhere else to go. According to defendant, when he spoke with detectives the following 

morning, he did not remember running from the police and did not remember anything due to 

having blackouts. 

¶ 21 Also on cross-examination, defendant admitted that he could have continued walking down 

Pulaski Road instead of cutting through the gas station and that he knew how to avoid the 

people he encountered on the corner of Armitage Avenue and Hamlin Avenue. He also 

admitted that the police dash camera video did not show a group of people on Armitage 

Avenue. Defendant also stated that he encountered decedent in front of a building located at 

2015 North Pulaski Road but agreed that he could see through the fence around the yard at that 

location and further that as he walked west through the alley, he could see the sidewalk area 

before he reached it.

¶ 22 On redirect examination, defendant stated that he put his hood up after he saw the group 

on Armitage Avenue to cause less attention. He also testified that the shooting happened in a 

matter of seconds and he did not know exactly where he fired the gun. Defendant further stated 

that he told the police that he did not remember what happened and that he had blackouts 
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because he was scared and did not know what happened to decedent. Defendant reiterated that, 

when decedent threatened him, his hands were at his side.

¶ 23 After defendant’s testimony, the parties stipulated that decedent was convicted of 

aggravated battery to a police officer.

¶ 24 In rebuttal, the State called Officer Kurt Catalan, who testified that at approximately 10:30 

p.m. on May 2, 2016, he was near North and Grand Avenues, and he responded to a call of 

shots fired near Armitage Avenue and Pulaski Road. He arrived at the scene less than a minute 

later, and as he turned north on Pulaski Road, two other police vehicles drove in front of him, 

and his vehicle was the fourth to arrive there. He did not observe anyone run from the scene, 

and his dash camera video was published to the jury. Officer Catalan further testified that the 

quickest route to Cortland Street and Pulaski Road from Diversey Avenue and Harding Avenue 

would be to take Pulaski Road south; it would not make sense to walk north on Pulaski Road 

from Armitage Avenue, as that would be in the opposite direction of Cortland Street.

¶ 25 Defendant’s certified convictions for robbery and PSMV were admitted into evidence. 

During the jury instructions conference, the trial court denied defendant’s request for an 

instruction on involuntary manslaughter but agreed to instruct the jury on second degree 

murder and self-defense. After closing arguments and deliberation, the jury returned verdicts 

for two counts of first degree murder and three counts of UUWF.

¶ 26 C. Posttrial Proceedings

¶ 27 Defendant’s motion for a new trial was denied; in it, he alleged that the trial court erred in 

denying his request to introduce evidence of decedent’s 2006 robbery conviction as Lynch 

evidence.

¶ 28 At sentencing on November 6, 2018, the State indicated that defendant’s UUWF sentence 

had to be Class X based on his background, without objection by defense counsel. The trial 

court noted that this was not a self-defense case but a “cold, calculated murder, absolutely 

murder.” Defendant was subsequently sentenced to 50 years’ imprisonment for murder plus a 

25-year firearm enhancement. The second murder count merged. Based on defendant’s prior 

criminal history, defendant was sentenced as a Class X offender to 30 years’ imprisonment on 

one count of UUWF (count VII), predicated on a prior UUWF conviction under case number 

13 CR 21751. The remaining UUWF counts merged into count VII, and all sentences were 

consecutive, for an aggregate sentence of 105 years’ imprisonment. Defendant’s motion to 

reconsider his sentence was denied,1 and this timely appeal followed.

¶ 29 II. ANALYSIS

¶ 30 On appeal, defendant contends that (1) the trial court erred by denying his motion in limine

to introduce evidence of decedent’s robbery conviction to support defendant’s self-defense 

claim and (2) his Class X sentencing for UUWF was improper because it rests on an improper 

double enhancement and an offense that is no longer criminal.

1

The motion to reconsider sentence did not raise any issue concerning defendant’s Class X sentence 

for UUWF.
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¶ 31 A. Lynch Evidence

¶ 32 Defendant first contends that the trial court erred in denying his motion in limine to use 

decedent’s 2006 robbery conviction as Lynch evidence to support his self-defense theory. He 

argues that the trial court incorrectly found the evidence too remote because the 10-year limit 

should have properly excluded time in prison, which the court failed to consider. He cites 

People v. Montgomery, 47 Ill. 2d 510 (1971), as support for this argument. Additionally, 

defendant argues that, contrary to the trial court’s finding, decedent did have something to 

gain—when he threatened defendant after saying “What are you doing over here”; this 

suggested an effort to enforce turf or a drug sale location. He asserts that the proffered evidence 

showed decedent’s violent character and propensity for violence. Defendant contends that, 

because the State presented no direct evidence and the jury needed the Lynch evidence to 

properly evaluate the State’s circumstantial case, the error was not harmless and he should be 

granted a new trial.

¶ 33 Contrary to defendant’s assertions, the State contends that the trial court properly exercised 

its discretion by excluding the proffered Lynch evidence of a robbery that decedent committed 

more than 10 years prior to his death. The State maintains that the remoteness of the conviction 

as well as the type of force and motive behind it, namely a push to the ground to gain control 

of a purse, supported the court’s decision, especially where other evidence of decedent’s 

violent and aggressive character was admitted at trial. The State notes that defendant did not 

introduce evidence of decedent’s release date for the robbery conviction but instead opines on 

appeal that “with day-for-day credit, [decedent] would have served 18 months; even with 180 

more good-conduct days, he would still have served a full year.” However, the State argues 

that, absent such evidence, a trial court must not resort to any presumptions regarding a release 

date and must use the date of the conviction, which was May 22, 2006. See People v. Naylor, 

229 Ill. 2d 584, 597 (2008). Regarding defendant’s reliance on Montgomery, the State asserts 

that its 10-year time limit is not applicable when considering the admissibility of Lynch 

evidence because it was intended solely for impeachment of a testifying witness. See 

Montgomery, 47 Ill. 2d at 516.2 The State further maintains that any error in excluding such 

evidence was harmless beyond a reasonable doubt given the overwhelming evidence 

establishing that defendant was not justified in shooting decedent and the excluded Lynch 

evidence would not have affected the verdict.

¶ 34 The decision to grant or deny a motion in limine rests within the sound discretion of the 

trial court, and that decision will not be disturbed absent an abuse of discretion. People v. Hillis, 

2016 IL App (4th) 150703, ¶ 112. We will find an abuse of discretion only where the trial 

court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable person would 

agree with the position adopted by the trial court. People v. Becker, 239 Ill. 2d 215, 234 (2010).

2This rule has since been codified in Illinois Rule of Evidence 609 (eff. Jan. 1, 2011), which 

provides that:

“(a) *** [f]or the purposes of attacking the credibility of a witness, evidence that the witness 

has been convicted of a crime, *** is admissible only if the crime, (1) was punishable by death or 

imprisonment in excess of one year under the law under which the witness was convicted ***.

(b) *** [e]vidence of a conviction under this rule is not admissible if a period of more than 10 

years has elapsed since the date of conviction or of the release of the witness from confinement, 

whichever is the later date.” 
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¶ 35 In Lynch, our supreme court held that, when the theory of self-defense is raised, the victim’s 

aggressive and violent character is relevant to show who was the aggressor. Lynch, 104 Ill. 2d 

at 200. 

“Lynch was codified in Illinois Rule of Evidence 405(b)(2) (eff. Jan. 1, 2011), which 

states: ‘In criminal homicide or battery cases when the accused raises the theory of selfdefense and there is conflicting evidence as to whether the alleged victim was the 

aggressor, proof may also be made of specific instances of the alleged victim’s prior 

violent conduct.’ ” People v. Martinez, 2019 IL App (2d) 170793, ¶ 73.

¶ 36 Pursuant to Lynch, the evidence of the victim’s violent character may be offered in one or 

both of the following circumstances: 

“First, the defendant’s knowledge of the victim’s violent tendencies necessarily affects 

his perceptions of and reactions to the victim’s behavior. The same deadly force that 

would be unreasonable in an altercation with a presumably peaceful citizen may be 

reasonable in response to similar behavior by a man of known violent and aggressive 

tendencies. One can consider facts one knows, however, and evidence of the victim’s 

character is irrelevant to this theory of self-defense unless the defendant knew of the 

victim’s violent nature ***.

Second, evidence of the victim’s propensity for violence tends to support the 

defendant’s version of the facts where there are conflicting accounts of what happened. 

In this situation, whether the defendant knew of this evidence at the time of the event 

is irrelevant.” Lynch, 104 Ill. 2d at 200.

¶ 37 Having outlined the main legal principles involved, we now turn to defendant’s arguments 

concerning evidence of decedent’s 2006 conviction, which he sought to introduce in support 

of his assertion of self-defense, which the trial court barred. We review the trial court’s 

judgment, not the reasons cited, and we may affirm on any basis supported by the record if the 

judgment is correct. People v. Anderson, 401 Ill. App. 3d 134, 138 (2010). We begin by noting 

that, in any Lynch situation, we must first decide whether the defendant was entitled to 

introduce Lynch at all, namely whether he properly raised a theory of self-defense in his case, 

which merited consideration of the Lynch principles. People v. Figueroa, 381 Ill. App. 3d 828, 

842 (2008).

¶ 38 In the case at bar, defendant filed an answer raising a self-defense theory in which he 

alleged that decedent was the aggressor in the alley, which prompted defendant to shoot him. 

At trial, defendant testified consistent with that theory, stating that decedent threatened him, 

and that, although he did not see a gun, he thought that decedent was reaching for a gun when 

he shot him. Initially, defendant testified that decedent came out of nowhere, but he later 

admitted on cross-examination that he could clearly see the sidewalk area prior to approaching 

it. 

¶ 39 Aside from defendant’s admission to the shooting, the State’s evidence consisted primarily 

of videos that showed decedent entering the alley first, defendant following him shortly 

thereafter, and defendant running from the alley after the shooting. Further, Officer Catalan 

testified in essence that defendant was walking the opposite way of his girlfriend’s house, 

which, according to his testimony, is where he was headed. Moreover, there were no 

eyewitnesses and most of decedent’s wounds were to the back of his body.
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¶ 40 Based on the aforementioned, the question of whether defendant properly raised a theory 

of self-defense is not in dispute. What is in dispute, however, is whether his theory merited 

consideration of the Lynch principles. Defendant basically alleges that decedent was the 

aggressor and threatened him with violence. Accordingly, we find that, although scant, 

defendant’s testimony could serve as support for the admission of Lynch evidence to show 

decedent’s aggressive and violent character. 

¶ 41 Pursuant to Lynch, defendant sought the admission of decedent’s 2006 robbery conviction, 

which was approximately 10 years prior to decedent’s murder, and decedent’s 2012 conviction 

for aggravated battery to a peace officer. The trial court allowed the 2012 conviction but 

disallowed the 2006 conviction. 

¶ 42 Thus, we must determine whether the trial court properly excluded evidence of decedent’s 

2006 conviction. It is clear from the record that decedent’s 2006 conviction was not admissible 

under the first Lynch circumstance because defendant has not alleged, nor have we found in 

our review of the evidence presented at trial, that he was acquainted with decedent or had 

personal knowledge of the victim’s tendencies, violent or otherwise. The record reveals that 

defendant lived at 1458 South Canal Street, while the shooting occurred at 2015 North Pulaski 

Road, which is more than 40 blocks away; so they did not live in the same neighborhood. 

While defendant testified that his aunt and girlfriend lived nearby, there was no evidence 

presented that there was any prior contact or conflict between defendant and decedent.

¶ 43 We now turn our attention to the second Lynch circumstance, evidence of decedent’s prior 

violent acts: again, his 2006 robbery conviction. In Lynch, our supreme court noted that 

convictions for crimes of violence are reliable evidence of a violent character. Lynch, 104 Ill. 

2d at 201. In order for a victim’s prior conviction to be admissible as Lynch evidence, there 

must be conflicting accounts of what happened, the conviction must be for a “crime of 

violence,” and the conviction must not be remote from the incident at issue. Id. at 200-03; 

People v. Ellis, 187 Ill. App. 3d 295, 301-02 (1989).

¶ 44 We have already determined that defendant’s trial testimony could serve as a conflicting 

account of what happened when examined against the State’s evidence. Notwithstanding the 

conflicting versions and contrary to defendant’s assertion, the fact that this evidence may be 

relevant to show decedent’s propensity for violence is not the only factor that a trial court 

should consider when determining whether to admit or exclude Lynch evidence. People v.

Simon, 2011 IL App (1st) 091197, ¶ 72. Rather, in Lynch, our supreme court stated that 

defendant could demonstrate that the victim was the aggressor by “appropriate evidence” and 

discussed whether the convictions at issue amounted to “competent evidence” of violent 

character. Lynch, 104 Ill. 2d at 201, 204. Thus, whether evidence of decedent’s 2006 conviction 

was competent Lynch evidence turns to the nature of the conviction.

¶ 45 At the hearing on defendant’s pretrial motion in limine, review of decedent’s 2006 robbery 

conviction revealed that decedent pushed a woman down to steal her purse after a struggle. 

The trial court excluded evidence of the conviction under Lynch because it determined that 

decedent’s 2006 robbery conviction was too remote in time. Defendant argues on appeal that 

decedent’s prison time should have been excluded when calculating whether the conviction 

was remote. 

¶ 46 Remoteness in time is a valid consideration in determining whether it is reasonable for the 

trial court to allow the admission of evidence regarding the victim’s violent character in a 

prosecution in which the defendant raises a claim of self-defense. People v. Barnes, 2017 IL 
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App (1st) 143902, ¶ 49. As correctly noted by the State, Montgomery is inapplicable to this 

case because decedent was not a testifying witness against whom defendant sought to admit 

evidence of a conviction for impeachment purposes. See Montgomery, 47 Ill. 2d at 516. 

However, even if Montgomery applies, we have previously determined that the trial court has 

discretion to exclude evidence of a conviction that is 10 or more years old. See Ellis, 187 Ill. 

App. 3d at 301-02. 

¶ 47 In this case, decedent’s robbery conviction was on May 22, 2006. Decedent’s shooting 

death occurred on May 2, 2016, just slightly under 10 years since the robbery conviction. The 

record does not indicate that defendant proffered any evidence of decedent’s release date for 

purposes of calculating the remoteness of decedent’s robbery conviction. The trial court in its 

discretion determined that decedent’s conviction was remote, presumably since his shooting 

death occurred just three weeks shy of the 10-year end point set by the Montgomery rule. See 

Naylor, 229 Ill. 2d at 598. In fact, we do not believe that the Montgomery 10-year end point 

was meant to be a bright line test or dispose of the trial court’s discretion where the conviction 

is slightly more or less than 10 years. Accordingly, given the circumstances presented by this 

case, we find that the trial court did not abuse its discretion in disallowing the Lynch evidence 

of decedent’s robbery conviction.

¶ 48 We further note that, even where evidence of the victim’s propensity for violence should 

have been admitted, reversible error does not always occur if a trial court improperly excludes 

it. People v. Armstrong, 273 Ill. App. 3d 531, 536 (1995). We have previously found that such 

error is not reversible when it amounts to harmless error (Figueroa, 381 Ill. App. 3d at 846) 

and such error is harmless when the Lynch evidence is cumulative to other evidence presented 

at trial (see People v. Nunn, 357 Ill. App. 3d 625, 632 (2005)). 

¶ 49 In this case, the jury heard evidence of decedent’s violent and aggressive character, 

specifically that he was convicted in 2012 of aggravated battery of a peace officer, including 

testimony from the police officers involved in that altercation. Thus, we find that any error in 

the exclusion of decedent’s 2006 robbery conviction was harmless where the record shows that 

other evidence was presented from which the jury could have concluded that decedent’s prior 

conduct was violent. See People v. Eshaya, 144 Ill. App. 3d 757, 764 (1986).

¶ 50 B. Class X Sentence for UUWF Conviction

¶ 51 Next, defendant contends that his Class X sentence was improper because it rests on an 

improper double enhancement and an offense that is no longer criminal. In support of his 

contentions, defendant argues that his prior UUWF conviction could not be used to make him 

Class X eligible because it was already used to prove the current charge of UUWF and 

constitutes an impermissible double enhancement. Defendant further argues that his robbery 

conviction occurred when he was a 17-year-old juvenile and is not “presumptively classified 

as a juvenile matter.” Additionally, robbery is not currently classified as a Class 2 felony, so it 

cannot support his Class X sentencing. Defendant concludes that his PSMV conviction alone 

is insufficient to support Class X sentencing.

¶ 52 The State concedes that defendant’s earlier conviction for UUWF could not be used to 

establish his eligibility for Class X sentencing because it was relied upon as an element of the 

offense and such use would be an impermissible double enhancement. However the State 

further responds that defendant’s robbery conviction, committed when he was 17 years old, 

should not be excluded from consideration for Class X sentencing because the fact that the 
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legislature subsequently increased the age limit for juvenile court to 18 years old is irrelevant 

as it had no effect on defendant’s prior conviction. The State notes that defendant was a 

juvenile who was convicted as an adult in criminal court. The State also argues that defendant 

misconstrues section 5-4.5-95(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5-

4.5-95(b) (West 2018)) in that it applies to his previous conviction of a qualifying offense, not 

whether he would now be convicted of the qualifying offense, and his argument should be 

rejected under the plain language of the statute. Further, the State argues that defendant has 

forfeited review of this issue by failing to preserve the issue for appellate review.

¶ 53 Defendant acknowledges that this court has no jurisdiction to review merged or 

unsentenced convictions but asserts that we can review them to decide if any other valid 

convictions would have supported his Class X sentencing or eligibility, citing People v. Dixon, 

91 Ill. 2d 346 (1982), in support. Additionally, defendant acknowledges that this issue was not 

raised in his postsentencing motion but asserts that it is reviewable under the second prong of 

plain error, as it affects his substantial rights. In the alternative, he contends that this court can 

review merged or unsentenced convictions for ineffectiveness of trial counsel where counsel 

failed to object or preserve the issue for review.

¶ 54 The failure to object to alleged error at trial and raise the issue in a posttrial motion 

ordinarily results in forfeiture of the issue on appeal. People v. Thompson, 238 Ill. 2d 598, 611-

12 (2010). However, Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides that “[a]ny 

error, defect, irregularity, or variance which does not affect substantial rights shall be 

disregarded. Plain errors or defects affecting substantial rights may be noticed although they 

were not brought to the attention of the trial court.” 

¶ 55 To establish plain error, a defendant must first show that a clear or obvious error occurred 

(Thompson, 238 Ill. 2d at 613) and 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 (Naylor, 229 Ill. 2d at 593) or that the error was sufficiently grave that it deprived 

defendant of a fair sentencing hearing (People v. Hanson, 2014 IL App (4th) 130330, ¶ 26).

¶ 56 Here, defendant’s claim that his sentence is not statutorily authorized affects his substantial 

rights and is reviewable as second prong plain error. People v. Foreman, 2019 IL App (3d) 

160334, ¶¶ 41, 42. However, before considering application of the plain error doctrine, we 

must determine whether the trial court committed error, and the burden is on defendant to 

establish that an error occurred. Thompson, 238 Ill. 2d at 613. If we find that the trial court 

erred in sentencing defendant, we will consider whether the error rose to the level of plain 

error. Simon, 2011 IL App (1st) 091197, ¶ 75.

¶ 57 Whether defendant’s prior convictions constitute qualifying offenses for purposes of 

mandatory Class X sentencing is a question of statutory construction that we review de novo. 

People v. Baskerville, 2012 IL 111056, ¶ 18.

¶ 58 Here, defendant was sentenced on November 6, 2018, to a Class X sentence of 30 years 

for UUWF based on his prior felony background pursuant to section 5-4.5-95(b) of the Code 

(730 ILCS 5/5-4.5-95(b) (West 2018)). He does not argue that a 30-year sentence for a Class 

X-eligible defendant is improper; rather defendant asserts that he was not eligible for a Class 

X sentence. Thus, our inquiry is whether the trial court erred in sentencing him to a Class X 

sentence for UUWF.

¶ 59 This issue has recently been addressed by this court in three cases, People v. Miles, 2020 

IL App (1st) 180736, People v. Williams, 2020 IL App (1st) 190414, and People v. Reed, 2020 
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IL App (4th) 180533. In all three cases, the defendant was sentenced to a Class X term based 

on prior offenses committed when the defendant was a juvenile, prior to the amendment of 

section 5-120 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-120 (West 2014)). 

Moreover, certain juvenile offenses, including UUWF, were not excluded from juvenile 

jurisdiction under section 5-130 of the Act (see 705 ILCS 405/5-130 (West 2014)). In Miles 

and Williams, we found that the defendant’s prior conviction was not a qualifying offense for 

Class X sentencing (Miles, 2020 IL App (1st) 180736, ¶ 11; Williams, 2020 IL App (1st) 

190414, ¶ 21); however, in Reed, we found that the defendant’s prior conviction committed 

when he was 17 years old could serve as a predicate conviction for Class X sentencing (Reed, 

2020 IL App (4th) 180533, ¶ 29).We also acknowledge this issue is currently pending before 

our supreme court, which granted a petition for leave to appeal in People v. Stewart, 2020 IL 

App (1st) 180014-U, appeal granted, No. 126116 (Ill. Jan. 27, 2021).

¶ 60 It is undisputed that the Act was amended by the legislature in 2013 pursuant to Public Act 

98-61 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120) to raise the maximum age for 

juvenile jurisdiction from 16 to 17 for offenses that were not subject to automatic transfer. This 

amendment vested the juvenile court with exclusive jurisdiction over a defendant who, like 

defendant here, was 17 years old when he committed robbery. Williams, 2020 IL App (1st) 

190414, ¶ 20. We have found that this amendment provided some indication that the legislature 

intended to treat minors who commit certain crimes differently from adults charged with those 

crimes. See Miles, 2020 IL App (1st) 180736, ¶ 21; Williams, 2020 IL App (1st) 190414, ¶ 20.

Additionally, under the 2015 and 2016 amendments, defendants 15 years old and older accused 

of committing a forcible felony in furtherance of an illegal gang activity, and having a prior 

adjudication or conviction, would presumptively be transferred out of juvenile court. See Pub. 

Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-805(2)(a)). 

¶ 61 Turning our attention to the sentencing statute at issue, section 5-4.5-95(b) of the Code 

provides:

“When a defendant over the age of 21 years, is convicted of Class 1 or Class 2 felony, 

*** after having twice been convicted in any state or federal court of an offense that 

contains the same elements as an offense now (the date the Class 1 or Class 2 felony 

was committed) classified in Illinois as a Class 2 or greater Class felony *** and those 

charges are separately brought and tried and arise out of different series of acts, that 

defendant shall be sentenced as a Class X offender.” 730 ILCS 5/5-4.5-95(b) (West 

2018).

¶ 62 The language of section 5-4.5-95(b) has previously been found to be “clear and 

unambiguous.” See Foreman, 2019 IL App (3d) 160334, ¶ 46. Because the statute is 

unambiguous, we need not consider the legislative history. Id. ¶ 43. The proper focus of the 

provision is on the elements of the prior offense. Williams, 2020 IL App (1st) 190414, ¶ 16. 

Additionally, we have held that a previous conviction cannot be used as a predicate offense 

under section 5-4.5-95(b) if it would have been resolved with delinquency proceedings in 

juvenile court rather than criminal proceedings. See Miles, 2020 IL App (1st) 180736, ¶ 11; 

Williams, 2020 IL App (1st) 190414, ¶ 21. 

¶ 63 In the case at bar, defendant was convicted of robbery in criminal court when he was 17 

years old, but a 2014 amendment to the Act has since given the juvenile court exclusive 

jurisdiction over 17-year-old defendants charged with robbery. As Miles and Williams instruct, 

we look at whether the elements of his prior conviction would have been resolved in 
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delinquency proceedings rather than criminal court proceedings and whether his predicate 

offense would have been a juvenile adjudication instead of a Class 2 or greater Class felony

conviction. Section 5-4.5-95(b) is silent as to whether a juvenile adjudication is a conviction 

under its provisions. We note that our supreme court has previously held that juvenile 

adjudications do not constitute convictions. See People v. Taylor, 221 Ill. 2d 157, 176 (2006). 

Accordingly, we find that defendant’s prior robbery conviction is not an offense now classified 

in Illinois as a Class 2 or greater Class felony, and therefore cannot serve as a predicate offense 

for Class X sentencing. 

¶ 64 We recognize that the Fourth District of this court has reached a different result on this 

issue in Reed. However, this court is not bound to follow the decision of another district when 

our own district has decided contrary to that other district or there is a split of authority among 

the districts. People v. Ward, 192 Ill. App. 3d 544, 554 (1989). Each case must be decided on 

its own facts (id.), and given that this court has previously determined this issue, we are not 

obligated to follow Reed.

¶ 65 We now turn to defendant’s contention that his Class X sentence was based on an 

impermissible double enhancement. A double enhancement occurs when either a single factor 

is used both as an element of an offense and as a basement for imposing a harsher sentence 

than might otherwise have been imposed or the same factor is used twice to elevate the severity 

of the offense itself. People v. Owens, 377 Ill. App. 3d 302, 304 (2007). 

¶ 66 As noted above, defendant argues, and the State agrees, that his prior UUWF conviction 

could not be used to make him Class X eligible because it was already used to prove the current 

charge of UUWF, thereby constituting an impermissible double enhancement. We also agree 

that the UUWF cannot be used for Class X eligibility.

¶ 67 While the imposition of a sentence within a statutory sentencing range is reviewed for an 

abuse of discretion (People v. Jones, 168 Ill. 2d 367, 373-74 (1995)), the determination of 

whether a defendant is eligible for Class X sentencing is a question of law mandating de novo

review (People v. Baumann, 314 Ill. App. 3d 947, 948 (2000)). 

¶ 68 Here, defendant’s background included three prior convictions: UUWF, PSMV, and a 2009 

robbery. As just discussed, defendant’s robbery conviction that occurred while he was a 

juvenile cannot serve as a predicate offense for Class X sentencing, and his prior UUWF 

conviction was used as an element of the offense. That only leaves defendant’s PSMV 

conviction, which is only one prior conviction and not the two needed for Class X sentencing 

(730 ILCS 5/5-4.5-95(b) (West 2018)). 

¶ 69 Consequently, we find that defendant’s Class X sentencing was not statutorily authorized 

and was in error. Having found that error occurred, we therefore vacate defendant’s Class X 

sentence for UUWF and remand for resentencing on that conviction.

¶ 70 III. CONCLUSION

¶ 71 For the foregoing reasons, we affirm defendant’s convictions, the trial court’s denial of his 

motion in limine to introduce evidence of decedent’s 2006 robbery conviction as Lynch 

evidence, and his sentences for first degree murder and the firearm enhancement. We vacate 

defendant’s Class X sentence for UUWF and remand for resentencing on that conviction.

¶ 72 Affirmed in part, vacated in part, and remanded with directions.