2021 IL App (1st) 171510-U

No. 1-17-1510 

Order filed April 15, 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,

Plaintiff-Appellee, 

 v. 

MARKEEM SCOTT, 

 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Cook County. 

No. 13 CR 1069 

Honorable 

William T. O’Brien, 

Judge, presiding. 

JUSTICE LAMPKIN delivered the judgment of the court.

Justice Reyes concurred in the judgment. 

Justice Martin specially concurred.

ORDER

¶ 1 Held: We affirm defendant’s conviction for robbery and sentence of four years’ probation 

over his contentions that the evidence was insufficient to sustain his conviction and 

that his sentence was excessive.

¶ 2 Following a bench trial, defendant Markeem Scott was convicted of robbery (720 ILCS 

5/18-1(a) (West 2012)) and sentenced to four years of probation, subject to conditions of the 

probation program supervised by the Gang Intervention Unit of the Cook County Adult Probation 
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Department. On appeal, he contends that his conviction must be reversed because there was 

insufficient identification evidence to prove beyond a reasonable doubt that he was the offender. 

He also claims that the court erred in sentencing him to “gang probation” and that the four-year 

term of probation is excessive. For the following reasons, we affirm.1

¶ 3 Defendant was charged in two separate cases (13 CR 1068 and 13 CR 1069) for crimes 

against separate victims on the night of November 30, 2012. Although there was a joint bench trial 

for both cases, only one of those cases (13 CR 1069) is at issue in this appeal.

2 In that case,

defendant was charged by indictment with robbery (count I), and two counts of aggravated battery 

(counts II and III) for offenses against Allison Helliwell. The State elected to proceed on count I 

and II and nol-prossed count III.

¶ 4 At trial, Helliwell testified that at approximately 9:35 p.m. on November 30, 2012, she left

her Damen Avenue apartment in Wicker Park to go to her car. Her boyfriend had last parked the 

car, so she knew the vehicle’s general vicinity but not its exact location. She walked down an alley 

and saw a car parked near a viaduct that looked similar to hers, but then saw it had a different

license plate. As she continued to search, an individual came walking from the direction of the 

viaduct on the other side of the street and said “hey.” She identified the individual as defendant. 

She was not looking at him before he spoke to her, but she turned to face him after he spoke. 

¶ 5 Asked about the lighting conditions when she saw defendant, Helliwell said there was a 

street light and lights under the viaduct. As defendant approached her, she saw a second individual, 

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 Case 13 CR 1068 concerned alleged offenses against Jennessa Berg and Sofia Becker, who also 

testified at trial but whose testimony is not relevant to this appeal. Defendant was found not guilty of 

those offenses.
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who was wearing a mask, come from the area of the viaduct. The two individuals came up to her 

quickly as she backed up. Helliwell testified: “I had my car keys in my hand and my bag like this, 

and they just came up right next to me, took my car keys from my hand and took my bag off.”

Asked how close defendant came to her, she stated “very close” and testified that he was facing 

her. Defendant took her bag, while the other man took her keys. Defendant then grabbed her jacket 

and threw her on the ground. After she was on the ground, she was looking at defendant, who

called her a “stupid f***ing bitch.” Defendant and the masked person then ran away. Helliwell ran 

back to her apartment, called 911, and described the offenders. She testified that she described 

defendant as an African American male, medium complexion, wearing all black with his hair in 

short dreadlocks. She described the other offender as wearing a mask and black clothing.

¶ 6 Helliwell spoke with police officers who arrived at her apartment. After “not very much 

time had passed,” police told her that they had a suspect in custody. Helliwell went to a police 

station and an officer escorted her near a parked police car, where officers “pulled the defendant 

out of the back seat and shined a light on him.” She positively identified defendant. 

¶ 7 On cross-examination, Helliwell acknowledged that it was dark outside but that she was in 

a well-lit alley. She estimated the incident lasted about 30 seconds and agreed that she spoke to 

police immediately after it happened. She agreed that the offender who pushed her down and spoke 

to her was right next to her. When she identified defendant, she estimated she was standing about 

four feet away from the police car. She acknowledged that she did not view a photo array or 

physical lineup. 
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¶ 8 The State introduced certain photographs (People’s Exhibits 1 through 9) into evidence, 

which included photographs of Helliwell, defendant, and defendant’s clothing from the night of 

his arrest.

3 The State rested, and defendant’s motion for directed verdict was denied.

¶ 9 Detective Joseph Finegan testified that he spoke with Helliwell after responding to a 

robbery call. Helliwell told that him that the first offender was wearing a black top, blue jeans, 

with braids and the second person was wearing a black ski-mask type hat and blue jeans. He did 

not recall her saying that either man was wearing a black hoodie with a red graphic. Finegan was 

present when Helliwell identified defendant later that evening; he estimated that the distance 

between Helliwell and defendant was 30 feet. Finegan testified that defendant was wearing a black 

sweater, sweatshirt, and blue jeans.

¶ 10 On cross-examination, Finegan agreed that Helliwell described the person who pushed her 

to the ground as being about five feet eight inches tall, 190 pounds, about 18 years old, with black 

hair, brown eyes, braids-style hair and a medium-brown complexion. He agreed that defendant 

was illuminated by squad lights during the identification, and that Helliwell positively and 

unequivocally identified him.

¶ 11 Defendant testified that as of November 30, 2012 he was 18 years old and a high school 

senior. That evening, he went to an electronics store called Micro Center to study. He was wearing 

a black hoodie with red graphics in the front and dark green pants with green graphics; he identified

Defense Exhibit 1 as the hoodie he was wearing, and described it as having graphics that look like 

red horseshoes. Defendant denied that his hair was in braids on that day. He left Micro Center at 

approximately 8:30 p.m. and went to a nearby Vitamin Shoppe, and then to a McDonald’s 

3 After the parties submitted their briefing in this appeal, defendant supplemented the record on 

appeal with People’s Exhibits 1 through 9, which this court has reviewed.
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restaurant. He left the restaurant at approximately 10 p.m., planning to take a bus home. He noticed 

a police car, and an officer inside asked him to approach. The police questioned him, searched him

and told him to get into the car. The police eventually pulled over, told him to get out of the car, 

and shined a light on him. Defendant denied robbing anyone.

¶ 12 Following argument, the trial court found defendant guilty. The trial court explicitly 

recognized the factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), regarding the assessment

of identification testimony and found that the factors weighed in favor of Helliwell’s testimony.

The court also remarked that it “didn’t believe [defendant’s] story” that he was studying at a retail 

store that evening.

¶ 13 Defendant filed a motion for a new trial. At a posttrial hearing, defense counsel argued that 

was no evidence of injury to Helliwell to maintain the finding of guilt on aggravated battery (count 

II). The court agreed, vacating the finding of guilt on count II but maintaining the finding of guilt 

for robbery (count I).

¶ 14 Defendant’s presentence investigative report (PSI) indicated that he was born in 1994 and 

had one juvenile arrest for burglary in 2008. He had no prior adult convictions or other pending 

cases. Defendant had graduated from high school, expected to receive an associate’s degree in 

2017, and planned to continue his studies. The PSI indicated that since 2013 he had been employed 

at the GAIA Movement, a non-for-profit organization. Defendant also submitted a number of 

letters from coworkers, supervisors, and relatives attesting to his good character.

¶ 15 In aggravation, the State emphasized that Helliwell was alone and that he not only robbed 

her, but “physically abused” her by pushing her to the ground and “emotionally abuse[d]” her by 

calling her a “f***ing bitch.” The State also referenced the evidence of the alleged robbery against
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Berg and Becker, acknowledging that the court had found him not guilty beyond a reasonable 

doubt, but arguing that it was “more probably true than not.” 

¶ 16 In mitigation, defense counsel emphasized that defendant was only 18 years old at the time

of the offense and was now 22 years old, attending college, and employed. Counsel referenced the

letters submitted on defendant’s behalf. Counsel emphasized that defendant had no prior 

convictions and had never been a gang member despite living in a “crime-infested neighborhood 

where gang activity is rampant.” Counsel argued that defendant was on the “right path,” had “put 

education first” and was working to support himself. Counsel also noted that defendant had spent 

nine months in jail in connection with this case, until his father posted bond.

¶ 17 Defendant declined to address the court in allocution. In imposing sentence, the court 

stated:

“Court has considered the presentence investigation, and it’s been 

supplemented by several letters, and I have reviewed those letters. Also, [the] Court 

has made itself aware again [and] been reacquainted with the facts of the case, the 

statutory factors in mitigation, as well as the arguments presented in mitigation. 

The Court has also considered the statutory factors in aggravation, as well as those 

arguments presented in aggravation.

And, therefore, on the charge of robbery, the Court is going to sentence you 

to four years gang probation. You must follow all the terms and conditions of gang 

probation, as well as the adult probation department, and the drug and alcohol 

evaluation, follow all treatment recommendations of the evaluation. I’m also going 

to give you 20 days of Sheriff’s Work Alternative Program, as well as periodic

random urine drops, and mandatory fees and costs.” 
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¶ 18 After warning defendant that he could be resentenced to up to seven years’ imprisonment 

if he violated the terms of probation, the court also told defendant: 

 “THE COURT: This case involved someone that you are with. And for that 

guy, he decided he was going to wear the mask, and you didn’t get a mask. And my 

inkling on this is that you were along for the ride. You need to find new friends. 

Because all the information that I received, despite the fact that you are in an area 

that as somebody characterized [was] infested with crime, that’s the deal. It’s not 

an excuse. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: So, again, I’m taking a chance on you. I really abhor when 

people accost people on the street. You have changed lives forever. And I think that 

- - I don’t care where you’re raised, or who you are, you know that you’re not 

supposed to do that. It’s not a thing of education; it’s upbringing, and I know your 

folks raised you better than that that.

So, it will be four years gang probation, drug and alcohol evaluation, follow 

all treatment recommendations of that evaluation, 20 days Sheriff’s Work 

Alternative program, periodic random urine drops, and mandatory fees and costs.”

¶ 19 Defendant did not file a motion to reconsider sentence. He filed a timely notice of appeal. 

¶ 20 On appeal, defendant first argues that his conviction for robbery must be reversed because

the State failed to prove his guilt beyond a reasonable doubt. Specifically, he asserts that 

Helliwell’s identification testimony was “highly unreliable” and that he gave “unrebutted” 

testimony that he was elsewhere at the time of the robbery. Defendant also notes the lack of other 
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evidence connecting him to the robbery. Accordingly, he asks that we reverse his conviction

outright. 

¶ 21 “When reviewing a challenge to the sufficiency of the evidence, this court considers 

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.” (Emphasis in 

original and internal quotation marks omitted.) People v. Wheeler, 226 Ill. 2d 92, 114 (2007). In a 

bench trial such as the instant case, “it is for the trial judge, sitting as the trier of fact, to determine 

the credibility of witnesses” and to “resolve any conflicts in the evidence.” People v. SiguenzaBrito, 235 Ill. 2d 213, 228 (2009). 

¶ 22 A reviewing court “will not retry the defendant or substitute its judgment for that of the 

trier of fact on questions involving the weight of the evidence, conflicts in the testimony, or the 

credibility of witnesses. [Citation.]” People v. Corral, 2019 IL App (1st) 171501, ¶ 71. “Only 

where the evidence is so improbable or unsatisfactory as to create reasonable doubt of the

defendant’s guilt will a conviction be set aside. [Citation.]” Id. ¶ 72. 

¶ 23 In this case, to prove defendant guilty of robbery, the State had to prove that he knowingly 

took property from Helliwell by the use of force or by threatening the imminent use of force. 

720 ILCS 5/18-1(a) (West 2012). In this court, defendant does not challenge proof of any particular

element of the offense, but rather contests Helliwell’s identification testimony.

¶ 24 “Identification evidence which is vague or doubtful is insufficient to support a conviction. 

[Citation.] A single witness’ identification of the accused, however, is sufficient to sustain a 

conviction if the witness viewed the accused under circumstances permitting a positive 

identification.” People v. Joiner, 2018 IL App (1st) 150343, ¶ 47. This court has explained:
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“In assessing identification testimony, we consider the following five factors set 

forth in Neil v. Biggers, 409 U.S. 188 (1972): (1) the witness’ opportunity to view 

the defendant during the offense; (2) the witness’ degree of attention at the time of 

the offense; (3) the accuracy of the witness’ prior description of the defendant; 

(4) the witness’ level of certainty at the subsequent identification; and (5) the length 

of time between the crime and the identification. [Citation.]” Id. 

None of these factors alone is dispositive; “rather, the trier of fact is to take all of the factors into 

consideration.” Id. (citing Biggers, 409 U.S. at 199-200). Further, we keep in mind that 

“[e]yewitness testimony is insufficient only if the record compels the conclusion that no reasonable 

person could accept the testimony beyond a reasonable doubt. [Citation.]” People v. Charles, 

2018 IL App (1st) 153625, ¶ 25. 

¶ 25 Defendant urges that application of the five Biggers factors establishes that Helliwell’s 

“weak and uncorroborated identification testimony” was insufficient to support his conviction. 

For the following reasons, we disagree. 

¶ 26 With respect to the first factor—the opportunity to observe the offender—he suggests the 

“stress of this extremely brief incident” prevented Helliwell from getting a “good look at the 

offender” as her attention must have been “split between two people.” However, Helliwell testified

that she turned to face defendant after he approached and spoke to her. At no point did Helliwell 

suggest that she could not see defendant’s face. Indeed, she testified that the area was well-lit and 

that defendant was not wearing a mask. See People v. Macklin, 2019 IL App (1st) 161165, ¶ 30 

(victims “certainly had an adequate opportunity to view [defendant] *** as there was sufficient 

artificial lighting and [defendant’s] face was not covered.”). Nor did Helliwell testify that the 

second offender kept her from getting a good look at defendant. Rather, she testified that it was 
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defendant who pushed her down and called her a “bitch.” Further, this court has held that even 

identifications made during brief encounters may be found credible. See, e.g., Macklin, 2019 IL 

App (1st) 161165, ¶ 30 (trial court could find witness had adequate opportunity to view defendant 

even assuming opportunity “lasted seconds rather than minutes”); People v. Petermon, 2014 IL 

App (1st) 113536, ¶ 32 (identification testimony credible despite fact that the “entire incident took 

less than a minute”); People v. Parks, 50 Ill. App. 3d 929, 932-33 (1977) (identification from attack 

lasting “five to ten seconds” sufficient to sustain conviction)).

¶ 27 With respect to the second factor, defendant primarily argues that Helliwell’s degree of 

attention was “insufficient to yield a reliable identification” because of the “highly stressful 

situation” of being robbed and pushed to the ground. He cites the Supreme Court of New Jersey 

decision, State v. Henderson, 208 N.J. 208 (2011) for the proposition that stress can diminish an 

eyewitness’s ability to recall and make an accurate identification. Defendant also contends that 

“[n]umerous scientific studies have confirmed that high levels of stress” can negatively impact a 

witness’ ability to make an accurate identification, citing academic articles. Notably, he does not 

cite any Illinois precedent suggesting that we must discount reliability of a witness’ identification 

in a stressful situation. Further, we note that he did not make such a scientific argument in the trial 

court, through expert testimony or otherwise. See People v. Tomei, 2013 IL App (1st) 112632, 

¶ 56 (rejecting scientific argument regarding fourth Biggers factor; since “defendant did not 

present expert testimony, we do not find defendant’s argument persuasive that the fourth factor 

*** should be given little weight.”).

¶ 28 In any event, nothing in the record suggests that the stress of the encounter interfered with 

Helliwell’s ability to pay attention. Instead, she offered detailed testimony about the incident, 

including defendant’s appearance, actions, and words to her. The trial court was certainly entitled 
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to find that this indicated a sufficient degree of attention. See People v. Blankenship, 2019 IL App 

(1st) 171494, ¶ 29 (finding that second Biggers factor favored the State where witness “was able 

to give a detailed account of the events of the robbery and the physical descriptions of both 

defendant and gun.”).

¶ 29 Defendant nonetheless contends that the “lack of specificity of Helliwell’s description” 

“shows that her degree of attention was low.” He claims that the “entirety of Helliwell’s description 

of the unmasked offender was that he was African-American, had a medium complexion, short 

dreadlocks and was wearing all black.” We disagree, as defendant ignores Finegan’s testimony 

that she additionally described defendant’s weight, height, and estimated him to be about 18 years 

in age. 

¶ 30 Similarly, we reject defendant’s suggestion that Helliwell’s degree of attention was 

insufficient because her description was “missing significant details.” He points out that Helliwell 

did not mention the red horseshoes on his sweatshirt, and that she described him as wearing black 

pants or jeans when, in fact, he was wearing green pants with a logo on them. He also claims a

discrepancy between her testimony that his hair was in short dreads, and Finegan’s testimony that 

she described him as having braids. We reiterate that we do not substitute our judgment for that of 

the trier of fact, who is responsible for assessing what weight should be afforded to any 

discrepancies in the evidence. People v. Sutherland, 223 Ill. 2d 187, 242 (2006) (the weight to be 

given witness testimony, including “resolution of inconsistences and conflicts in the evidence,” is 

the responsibility of the trier of fact. [Citations.]”). In this case, the alleged minor discrepancies or 

omissions did not preclude the trial court from crediting Helliwell’s identification. See People v. 

Slim, 127 Ill. 2d 302, 309 (1989) (“The presence of discrepancies or omissions in a witness’ 
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description of the accused do not in and of themselves generate a reasonable doubt as long as a 

positive identification has been made. [Citation.]”). 

¶ 31 For the same reasons, we reject defendant’s suggestion that the third Biggers factor— 

accuracy of the prior description—weighed against Helliwell’s identification. On that factor, 

defendant restates his contention that Helliwell’s description was too general and did not include

significant details such as the red graphics on his clothing. As discussed, the court heard evidence 

that Helliwell described several aspects of defendant’s appearance to police, including his height, 

weight, complexion, and approximate age. See Blankenship, 2019 IL App 171494, ¶ 31 

(in discussing third factor, noting that victim identified “not only defendant’s clothing but also his 

height, build and complexion.”). Moreover, Helliwell unequivocally testified that she viewed 

defendant’s face. See id. (“even though [witness] gave police only a general description of the 

robber, his identification of defendant as the robber based on his recognition of defendant’s face 

supports the accuracy of his identification.” (citing Tomei, 2013 IL App (1st) 112632, ¶¶ 51-52)). 

¶ 32 With respect to the fourth Biggers factor, defendant does not dispute Helliwell’s certainty

in her identification. Rather, he argues that this is “the least important” of the Biggers factors, as 

it has been “discredited” by a “large body of social science research” disputing the relationship 

between a witness’ confidence and the accuracy of identification. However, defendant did not 

present expert testimony at trial on this subject; in such situations “[t]his court has found 

defendant’s argument unpersuasive where no such evidence was presented to support a finding 

that the witness’s certainty should be given little weight.” Blankenship, 2019 IL App (1st) 171494, 

¶ 32 (citing Tomei, 2013 IL App (1st) 112632, ¶ 56).

¶ 33 Defendant acknowledges, and we agree, that the fifth and final Biggers factor—the length 

of time between the crime and the identification—supports Helliwell’s identification. However, 
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he argues this factor is “more than offset by the extremely suggestive nature” of the initial showup 

identification. In setting forth this argument, defendant does not cite any case suggesting that the 

fifth Biggers factor should be discounted in cases involving a showup identification. Importantly, 

our supreme court has “approved showups near the scene of the crime as acceptable police 

procedure designed to aid police in determining whether to continue or end the search for the 

culprits.” Jones, 2017 IL App (1st) 143766, ¶ 27 (quoting People v. Lippert, 89 Ill. 2d 171, 188 

(1982)).

¶ 34 In sum, the five Biggers factors support the trial court’s decision to find Helliwell’s 

identification to be credible and reliable. We reiterate that a single witness’ identification “is 

sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting 

a positive identification.” People v. Joiner, 2018 IL App (1st) 150343, ¶ 47; see also SiguenzaBrito, 235 Ill. 2d at 228 (“the testimony of a single witness, if positive and credible, is sufficient

to convict, even though it is contradicted by the defendant.”). Here, the record does not compel the 

conclusion that no reasonable person could accept Helliwell’s testimony beyond a reasonable 

doubt. See Charles, 2018 IL App (1st) 153625, ¶ 25. Accordingly, we find the evidence presented 

sufficient to sustain defendant’s conviction. 

¶ 35 In reaching this conclusion, we reject defendant’s claim that the trial court’s 

“misremembrance of the evidence” contributed to its reliance on Helliwell’s identification. 

Specifically, he claims the trial court incorrectly stated that Helliwell was “looking at the first 

offender as he approached her” when “[i]n fact, Helliwell testified that she did not look at this 

person until he was next to her” and “[i]t was only when this person spoke to her that she turned

to face him.” After reviewing the transcript, we agree with the State that the trial court did not 

“misremember” the evidence. In discussing Helliwell’s testimony, the trial court stated: 
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“She saw a man walking from that viaduct toward her. He was on the sidewalk, and 

he said, hey, to her. She looked at him, and *** the man seemed to be -- seemed 

like he wanted to ask a question or direction. She was now looking at him as he 

approached.” 

Although Helliwell may not have explicitly testified that she faced defendant as he approached, 

this could be reasonably inferred from her testimony that she turned toward defendant after she 

heard him speak to her. In any event, this alleged “misrememberance” is at most a minor 

misstatement that could not constitute error. See People v. Williams, 2017 IL App (1st) 150795, 

¶ 39 (“if a trial court’s ‘minor misstatement’ of the evidence did not affect the basis of the ruling, 

it does not violate due process.” (citing People v. Schuit, 2016 IL App (1st) 150312, ¶ 107)).

¶ 36 Likewise, we reject defendant’s arguments that the trial court was “arbitrary” in declining 

to accept defendant’s “unrebutted” testimony about his activities on the evening of the robbery.

Clearly, his testimony was not “unrebutted” in light of Helliwell’s unequivocal identification of 

him. It was the responsibility of the trial court, sitting asthe trier of fact, to determine the credibility 

of the witnesses and resolve conflicts in the evidence. Siguenza-Brito, 235 Ill. 2d at 228. Defendant 

essentially asks us to substitute our judgment for that of the trial court with respect to witness

credibility, which we cannot do. Id. at 224-25. 

¶ 37 Defendant next challenges his sentence of four years of “gang probation,” i.e., the adult 

probation program overseen by the Gang Intervention Unit of the Adult Probation Department,

which entailed certain conditions beyond those of standard probation. Specifically, the record 

reflects that defendant was subject to special conditions, including: disassociating from all known 

gang members and refraining from gang activity; refraining from possession of gang paraphernalia 

or clothing; complying with a 7 p.m. curfew; submitting to searches when requested by the 
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probation officer; submitting to breath, urine, or blood tests for drugs or alcohol; not leaving the 

state without permission; performing 130 hours of community service; verifying employment 

monthly; and attending counseling, treatment or educational programs as directed by probation 

officers.

¶ 38 Defendant’s challenge to his sentence raises two distinct arguments. First, he claims that 

“gang probation” is inappropriate because there was no evidence that he was a gang member, as 

necessary to “qualify” him for that particular program. Separately, he argues that the four-year 

probation period was excessive in consideration of mitigating factors and his rehabilitative 

potential, as well as the fact that he had already spent nine months in pretrial custody. On these 

grounds, he requests that we reduce his sentence or remand for resentencing. 

¶ 39 Defendant acknowledges that he did not preserve these arguments for review because he 

did not move to reconsider his sentence. See People v. Hillier, 237 Ill. 2d 539, 545 (2010) 

(to preserve a claim of sentencing error, both a contemporaneous objection and a written 

postsentencing motion raising the issue are required). Nonetheless, he urges application of the 

plain-error doctrine, which “bypasses normal forfeiture principles and allows a reviewing court to 

consider unpreserved claims of error in specific circumstances.” People v. Thompson, 238 Ill. 2d 

598, 613 (2010). Alternatively, defendant contends that his trial counsel’s failure to preserve his 

sentencing claims constitutes ineffective assistance of counsel.

¶ 40 To obtain relief under the plain-error doctrine, “a defendant must first show that a clear or 

obvious error occurred. [Citation.] In the sentencing context, 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. [Citation.]” Hillier, 237 Ill. 2d at 545. 

Defendant contends that he is entitled to relief under either prong. However, “[t]he first step of 
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plain-error review is determining whether any error occurred.” Thompson, 238 Ill. 2d at 613. Thus, 

we first consider whether the trial court erred. Here, we find no error.

¶ 41 We first reject defendant’s contention that the court was not empowered to impose 

conditions of “gang probation” because of lack of proof that he was in a gang. Defendant 

emphasizes that his probation was supervised by the Gang Intervention Unit and refers us to 

language (formerly) appearing on the Circuit Court of Cook County website stating that the Gang 

Intervention Unit serves “probationers who are gang members.”4 However, as the State points out, 

no statute prevents that unit from supervising defendant’s probation, or requires proof of gang 

activity as a prerequisite to imposing such conditions. Rather, a trial court’s imposition of 

particular probation conditions is discretionary. 

¶ 42 Section 5-6-3(b) of the Unified Code of Corrections enumerates a number of permitted 

conditions of probation which may be imposed “in addition to other reasonable conditions relating 

to the nature of the offense or the rehabilitation of the defendant as determined for each defendant 

in the proper discretion of the Court.” 730 ILCS 5/5-6.3 (West 2016). Thus, “[t]he statute gives 

the trial court the discretion to impose additional conditions of probation provided that they are 

reasonable.” People v. Meyer, 176 Ill. 2d 372, 378 (1997)). “Generally, the trial court is afforded 

wide discretion in fashioning the conditions of probation for a particular defendant. [Citation.]” 

Id. A trial court abuses its discretion only where its ruling is arbitrary, fanciful, or unreasonable or 

4 According to defendant’s opening brief and the material included in its appendix, as of April 

2019, the website for the circuit court included a separate description for the adult probation program 

overseen by the Gang Intervention Unit, stating that “The Gang Intervention Unit provides intensive 

supervision *** for probationers who are gang members.” However, as of December 24, 2020 the 

website no longer includes a separate discussion of particular probation program. See 

http://www.cookcountycourt.org/ABOUT-THE-COURT/Office-of-the-Chief-Judge/ProbationDepartments/Probation-for-Adults/Adult-Probation-Department/Programs.
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where no reasonable person would take the view adopted by the trial court. People v. Tolefree, 

2011 IL App (1st) 100689, ¶ 53. 

¶ 43 Given these authorities, we find no merit to defendant’s contention that he does not 

“qualify” for “gang probation.” We also cannot say that any of the probation conditions imposed 

are unreasonable, given the serious nature and circumstances of the offense, i.e. that he and another 

person robbed Helliwell and pushed her to the ground.

5

 

¶ 44 Having rejected defendant’s preliminary argument that he did not qualify for “gang 

probation,” we turn to his claim that the length of his sentence was otherwise excessive. In making 

this argument, he claims that the four-year term of probation did not reflect his “clear rehabilitative 

potential” and numerous mitigating circumstances, including his young age at the time of the 

offense, his lack of criminal history, his education and work history, and the letters submitted on 

his behalf attesting to his good character. He also notes that he spent nine months in custody. 

¶ 45 A trial court must impose a sentence that balances the seriousness of the offense and the 

defendant’s rehabilitative potential. People v. Knox, 2014 IL App (1st) 120349, ¶ 46. In doing so, 

the court must consider aggravating and mitigating factors including “the nature and circumstances 

of the crime, the defendant’s conduct in the commission of the crime and the defendant’s personal 

history, including his age, demeanor, habits, mentality, credibility, criminal history, general moral 

character, social environment and education.” Id. Because the trial court is in the best position to 

weigh these factors, the sentence imposed will not be reversed absent an abuse of discretion. Id.

The reviewing court “must not substitute its judgment for that of the trial court merely because it 

5 We further note that defense counsel specifically mentioned that defendant grew up in a “crimeinfested neighborhood where gang activity is rampant,” which could reasonably have raised the court’s 

concern that he was susceptible to the influence of gangs.
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would have weighed these factors differently.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). 

“A sentence within statutory limits will not be deemed excessive 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. Busse, 2016 IL App (1st) 142941, ¶ 20. 

¶ 46 After reviewing the record, we find defendant’s sentence, which was well within statutory 

limits, was not excessive or an abuse of discretion. Defendant was convicted of robbery, a Class 2 

offense. 720 ILCS 5/18-1(c) (West 2016). A Class 2 felony is subject to a determinate sentencing 

range of three years to seven years’ imprisonment and is subject to a period of probation not 

exceeding four years. 730 ILCS 5/5-4.5-35(b), (d) (West 2016).

¶ 47 Defendant received four years of probation, rather than any determinate prison sentence. 

As his sentence was well within the statutory range, it is presumably proper and will not be 

disturbed absent an affirmative showing that it was “at variance with the purpose and spirit of the 

law or is manifestly disproportionate to the nature of the offense.” Knox, 2014 IL App (1st) 

120349, ¶ 46. 

¶ 48 Defendant cannot make that showing. He notes that he “does not seek to minimize the 

seriousness of the offense.” Nonetheless, he contends the four-year term of probation fails to give 

adequate consideration to his youth, lack of criminal history, and rehabilitative potential, as well 

as the time he previously spent in pretrial custody in connection with this case.

¶ 49 However, the record reflects that the court did take into account various mitigating factors 

in exercising its discretion not to impose any prison term. Indeed, the trial court commented that 

it was “taking a chance” on defendant by only imposing probation. In imposing sentence, the court 

also specifically noted that it had considered the contents of the PSI and the letters submitted in 

support of defendant. These materials included the complained-of factors set forth by defendant, 
No. 1-17-1510 

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i.e., his youth, lack of criminal history, and rehabilitative potential. Given this record, defendant 

essentially asks us to reweigh the sentencing factors to conclude that the trial judge abused its 

discretion in awarding a four-year term of probation, notwithstanding the seriousness of the 

offense. This we cannot do, even assuming that we would have assessed the relevant factors 

differently. Stacey, 193 Ill. 2d at 209.

¶ 50 As we have rejected defendant’s claims of error regarding his sentence, we need not 

additionally discuss whether either prong of plain error review applies. See People v. Williams, 

2017 IL App (1st) 150795, ¶ 40 (“There was no error, let alone ‘plain’ error, and so we need not 

go further in the plain error analysis.”).

¶ 51 Similarly, we reject defendant’s suggestion that his trial counsel was ineffective for failing 

to properly preserve his sentencing challenges. A defendant alleging ineffective assistance of 

counsel must prove prejudice, such that “absent counsel’s deficient performance there is a 

reasonable probability that the result of the proceeding would have been different.” People v. 

Evans, 209 Ill. 2d 194, 219-20 (2004) (citing Strickland v. Washington, 466 U.S. 668 (1984)). 

As we have rejected his claims of error with respect to sentencing, defendant cannot demonstrate 

any reasonable probability that the result would have been different, even had his trial counsel 

preserved these challenges. See, e.g., People v. Brown, 2017 IL App (1st) 142877, ¶ 66 (counsel 

not ineffective for failing to file motion to reconsider sentence where there was no reasonable 

probability that the sentence would have been different even if motion had been filed). 

As defendant cannot demonstrate prejudice, his claim of ineffective assistance is without merit. 

¶ 52 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. 

¶ 53 Affirmed.
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¶ 54 JUSTICE MARTIN, specially concurring:

¶ 55 I wholly concur with my colleague’s well-reasoned decision. I specially concur to point 

out the importance that the trial court make a sufficient record to support its reasoning when 

sentencing defendants. It is well settled that courts have broad discretion in imposing conditions 

of probation. People v. Meyer, 176 Ill. 2d 372, 378 (1997). However, our supreme court has 

determined that this discretion is not without limitation. In re J.W., 204 Ill. 2d 50, 77 (2003). 

Special conditions of probation must be reasonably tailored to the nature of the offense for which 

the probationer was convicted. See People v. Goossens, 2015 IL 118347, ¶ 15. Here, Scott 

complains that he was sentenced to “gang probation,” despite there being no indication he was 

involved with gangs. The court, referencing a statement by defense counsel, stated: “despite the 

fact that you are in an area that somebody characterized, infested with crime, that’s the deal.” 

Nothing else in the record seems to support the court’s determination that “gang probation” was 

warranted for this probationer. While acknowledging the broad discretion possessed by the trial 

court when sentencing, trial judges are encouraged to make certain the record supports the 

imposition of any special conditions of probation.