20 2 1 IL App (1st) 1 71510

- U No. 1 -17-1510 Order f iled April 15 , 20 21 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. ) ) ) ) ) ) ) ) ) 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. O RDER ¶ 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 se ntence was excessive. ¶ 2 Follo wing a bench trial, d efendant Markeem Scott was convicted of robbery (7 20 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 ProbationNo. 1 -17-1510

- 2 - Department

. On appeal, he contends that his conviction must be reversed because there was insuff icient 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 Defe ndant was charged in tw o separate ca ses ( 13 CR 1068 and 13 CR 1069 ) for crimes against separate victims on the night of November 30, 2012. Although there wa s a joint bench trial for both cases , o nly one of those ca ses ( 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 Hel l iwell. The State ele cted to proceed on count I and II and nol

- prossed count III. ¶ 4 At trial, Helliwell test ified that at a pproximately 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 lo cation

. She walked down an alley and saw a car parked near a viaduct that looked similar to hers , but then saw it had a di fferent lic ense plate. As she continued to search , an individual came walking f rom the dire ction of the

v iaduct on the o ther 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 tur ned to face h im after he spoke. ¶ 5 Asked about the lighting condi tions when she saw defen dant , Helliwell said ther e wa s a street light an d 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 concerne d 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.No. 1 -17-1510

- 3 - who was wearing a mask, come from the area of the viaduct. The two individuals came up to her quickly a s she backed up. Helliwell testified : “ I had my car ke ys 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 sta ted “very close” and testified that he was facing her. D efendant took her bag, while the other man took her keys. D efendant then grabbed her jacket and threw her on the ground. After she was on the g round , she was looking at defendant , who called her a “stupid f***ing bitch.” D efendant and the masked person then ran away. Helliwell ran back to her ap artment , 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 desc ribed the other offender as wearing a mask and black clothing. ¶ 6 Helliwell spoke with p olice officers who arrived at her apartment

. After “not very much time had passed ,” police told her that they had a suspect in custody

. Helliwell w ent to a police station and a n 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 imm ediately after it happened . She agre ed that the offender who pushed her down and spoke to her was r ight next to her

. When she identified defendant, s he est imated she was standing about four feet away from the police car. She ac know ledged that she di d not view a photo array or physical lineup

.No. 1 -17-1510

- 4 - ¶ 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 d efen dant’s motion for directed verdict was denied. ¶ 9 D etective Joseph Finegan testified that he spoke with Helli well after responding to a robbery call

. Helliw ell told that him that the fir st offen der was wea ri ng a black to p , b lue jean s , with braids and the se cond person was w earing a black ski -m ask type hat and blue jeans. He did not recall her saying that either man was wearin g a black hoodie with a red graphic. Finegan was present when Helliw ell identified defendant later that evening; he estimated that the distance between Helliwell and defendant was 30 feet. Finegan testified that d efendant was wearing a black sweater, sweatshirt, and blue jeans. ¶ 10 On cross

- examination, Finega n agreed that Helli well d escribed the person who pushed her to the ground as being about five feet eight inches tall, 190 p ounds , 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 durin g 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 w ent to a n electronics st ore 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 ident ified Defense E xhibit 1 as the hoodie he was wearing, and des cribed it as having graphics that look like red ho rse shoes. Defendant d e nied that his h air was in braids on that day. He left Micro Center at approximately 8:30 p.m. and went to a nearby Vitamin Shoppe, and th en 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

.No. 1 -17-1510

- 5 - restaurant

. He left the restaurant at appr oximately 10 p.m. , planning to take a bus home. H e noticed a police car, and an officer inside asked him to approach. The police questioned him , searched h im 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 robb ing 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 testimo ny 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 argue d that was no evidence of injury to Helliwell to maintain the fin ding of guilt on aggravated battery (count II). The court agreed , vacat ing the finding of guilt on count II but maintain ing the finding of guilt for robbery (cou nt 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 conviction s or other pending

cases. Defe ndant had graduated from high school , expected to receive an associate’s degree in 2017, and planned to continue his studies. T he PSI indicated that since 2013 he had been employed

at the GAIA Movement, a non -for-p rofit organization. Defendant also submitted a number of letters from coworkers , supervisors, and relatives attesting t o his good character. ¶ 15 In aggravation, the State emphasized t hat Helli well was alone and that he not only robbed her, but “physically abused” her by pushing her t o the ground and “emotionally abuse[d]” her by calling her a “f***ing bitch.” The State also referenced the evidence of the alleged robb ery ag ainstNo. 1 -17-1510

- 6 - Berg and Becker , acknowledg ing that the c ourt had f ound him not gu i lty beyond a reasonable doubt, but arguing t hat it was “mor e pr obably true than not .” ¶ 16 In mitigation, defense counsel em phasized that d efendant was only 18 years old at the time of the offense and was now 22 years old, attending college, and employed. Counsel ref erenced the letters submitted on defendant’s behalf

. Counsel e mphasized that defendant had no prior convictions and had never been a gang member despite living in a “cri me - infest ed neig hborhood where gang activity is ramp ant .” Counse l argued that defendant was on the “rig ht path,” had “put education first” and was working to support h imself

. Counsel also noted that d efendant 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 s entence, the court stated: “Court has considered the pr es entence inv estigation , and it ’s been suppl emented by se veral l etters , 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 mit igation

. The Court has also con sidered the sta tutory fac tors in aggrava tion , as well as those

ar guments 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 gan g probation, as well as the adult probation department, and the drug and a lcohol evaluation, follow all treatment rec o mmen dations of the eva luation. I’m als o going to give you 20 days of Sh eriff’s Work Alt er native Program, as well as period ic random urine drops, and manda tory fees and costs.”No. 1 -17-1510

- 7 - ¶ 18 After warning defen dant that he could be resentenced to up to seven years’ imprisonment if he v io lated the terms of probation , the court also told defendant : “ THE COURT: This case involved some one that y ou are with. An d fo r that
gu y, he decided he was going to wear the mask, and you didn’t get a mask. An d my in kling on this is that you wer e along fo r the ride. You need to find new friends. Because all the infor mation that I re ceived , de spite the fact that you are in an are a that as someb ody c haracterized [was] infeste d with crime, tha t’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 wher e y ou’ re raise d , 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 ma ndatory fees and costs.” ¶ 19 Defendant did not file a motion to reconsider s entence

. 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 Helli w ell’s identification test imony was “highly unreliable” and that he gave “unrebutted” testimony that he was elsewhere at the time of the robbery. Def endant also note s the lack of otherNo. 1 -17-1510

- 8 - evidence connecti ng him to the robber y . Accor ding ly , he ask s that we rev erse his conviction outright. ¶ 21 “When reviewing a challenge to the suffic iency of the evidence, this cour t considers whether, viewing the evidence in the light most favorable to the State, any rational t rier 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 d e termine the credibility of witnesses” and to “resolve any conflicts in the evidence.” People v. Siguenz aBrito , 235 Ill. 2d 213, 228 (2009). ¶ 22 A review ing court “will not retry the defendant or substitute its judgment for that of the

tr ier of fact on questi on s involving the w eight of the evi dence, confli cts in the testimony, o r the credibility of witnesses. [Citation.] ” People v. Corral , 2019 IL App (1st) 171501, ¶ 71. “Only where the evi dence is so impr obable or un satisfactory as to create r easonable doubt of the de fe ndant’s gu ilt will a con viction be set aside. [Citation.] ” Id. ¶ 72. ¶ 23 In this case, to prove defen dant gui lty 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 201 2). In this court, defendant does not c hallenge proof of any p art icular ele ment 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 suffici ent to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification.” Peopl e v. Joiner , 2018 IL App (1st) 150343, ¶ 47. This court has explained:No. 1 -17-1510

- 9 - “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 dur ing 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 I L App (1st) 153625, ¶ 25. ¶ 25 Defendant urges that applic ation of the five Biggers factors e stablishes that Helliwell’s “weak and uncor roborated identification test imony ” was i ns uffic i ent to support his conviction. For the following reasons, we disagree

. ¶ 26 With respect to the first factor

— the opportunity to observe the offender —h e suggests the “stress of this ext remely brief incident ” prevented Helliwell from get ting a “good look at the offender” as her attention must have been “ split between two p eople.” However, Helliwell testi fied that she turned to face defendant after he a pproached and spoke to her . A t 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 “cer tainly had an ade quate opportunity to view [defendant] *** as ther e was suffi cient artificial lig hting and [defendant’s] f ace wa s not covered

. ”)

. Nor did Helliwell testify that the second offender kept her from getting a good look at defendant

. Rather, she testified that it wasNo. 1 -17-1510

- 10 - defendant who pushed her down and called her a “bitch .” Further, this cour t 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”) ; P eople 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, defend ant primarily argues that Helliwell’s degree of attention was “insufficient to yield a rel iable i d entification ” 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 , 2 08 N. J. 208 (2011) fo r th e proposition that stress can d iminish an

e yewitness’s abi lity to recal l and make an accurate identif ication. Defendant also contends that “[n]umerous scientific studies have confirmed that high levels of stress” can negatively imp act a witness’ ab ility to make an acc urate 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 arg ument in the trial

court , t hrough exper t test imony or otherwise

. See People v. Tomei , 2013 IL App (1st) 112632, ¶ 56 (rejecting sci entific argu ment regarding fou rth Biggers factor; since “defendant d id not present expert testimony, we do not find defendant’s argument persuasive that the four th 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 ab ility to pay attention. In stead , she offered detailed testimony about the incident, including defendant’s appearance , actions, and words to her

. The trial court was certainly enti tledNo. 1 -17-1510

- 11 - to find that this indicated a suffic ient degree of attention. See People v. Blankenship , 2019 IL App ( 1st ) 171494, ¶ 29 (finding that second Biggers factor fa vored the State where witness “was able to give a detailed account of the events of the robbery and the physical descr iptions of both d efe ndant and gun

. ”). ¶ 29 Defendant nonetheless contends th at the “lack of specif icity 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 Africa n- American, had a medium complexion, short d readlocks and was wearing all bl a ck.” We disagree, as defendant ignores Finegan’s testimony that she addit ionally 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 insuffi cient 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 we a ring green pants with a logo on them. He also claims a discrepancy between her testimony that his hair was in short dreads , and Fin egan’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. Peop le 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 dis crepancies 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’No. 1 -17-1510

- 12 - description of the accused do not in and of thems elves 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, def endant re states his c ontention that Helliw ell’s des cription was too general and did not include sig nificant d etails such as the r ed graphics on his clothing. As discussed, the court heard evidence that Helliwell described several aspects of de fendant’s appearance to police , inclu ding 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 al so his height , bu ild 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 robb er base d on his re cognition of d efendant’s face
suppor ts the ac curacy of his id entification

. ” (citing Tomei , 2013 IL App (1st) 112632, ¶¶ 51-52)). ¶ 32 With respect to the fourth Biggers factor, defendant does not dispute Helliwell’s certain ty in her identi fication

. Rather, he ar gues that this is “the least imp ortant ” of the Biggers factors, as it has been “disc redited” by a “ large body of socia l s cience research” disputing the relations hip between a witne ss’ confidence and the accuracy of identification

. However, defendant did not present ex pert testi mony at trial on this subject ; i n 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 leng th of tim e between the crime and the identification —supports Hel liwell’s id enti fication

. H owever,No. 1 -17-1510

- 13 - 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 Bigg ers factor should be discounted in cases involving a showup identification

. I mportantly , 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 Hell iwell’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 sing le witness, if pos itive and cr edible , is sufficient

to con vict , e v en tho ugh it is contra dicted by the d efendant.”)

. Here, the record does not compel the conclusion that no reasonable person could accept Helliwell’s testimony beyond a rea sonable 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, w e reject d efendant ’s claim that the t rial court’s “misremembrance of the evidence” co ntributed 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, Hell iwell test ified that she did n ot look at this
perso n unti l he was n ext to her” and “[i]t was only when this per son spo ke to her that she tur ned to face him.” After rev iewing the transcript, we agree with the State th at the trial court did not “misremember” the evidence. In discussing Helliwell’s testimony, the trial court stated :No. 1 -17-1510

- 14 - “She saw a man walking from that viaduct to ward 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 want ed to a sk a quest ion or d irection . She w as now looking at him as he approached.” Although Helliwell may not have expli citly t estif ied that she faced def endant as he approached, this could be reason ably inferred fro m her testi mony that she tu rned to ward defendant after she heard him speak to her. In any event, th is 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 as the 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 th e trial court with res pect to witness credibility, which we cannot do. Id. at 224-25. ¶ 37 Defendant next challenge s his sentence of four years of “ gang probation ,” i.e ., the adult probation program overseen by the Gang Intervention Unit of the Adult Probation Departm ent, which entailed certain conditions beyond those of standard probation. Specif i cally, the record refl ect s that def endant was subject to special conditions, including: d isassociating from all known gang members and refrain ing from gang activity; r efrain ing from possession of gang paraphernalia or clothing ; complying with a 7 p.m. curfew; subm itting to searches when requested by theNo. 1 -17-1510

- 15 - probation officer; submitting to breath, urine, or blood tests for drugs or alcohol; not lea ving the

sta t e with out permission; perfo rming 130 ho urs of communit y service ; verifying employment monthly; and atte nding counseling, tr eatment or edu cational program s as direct ed by probation officers. ¶ 38 Defendant ’s challenge to his sentence raises two distinct arguments

. First, he clai ms that “gang probation” is inapp ropr iate becau se 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 con sideration of mitiga ting factors and his rehabilitative potential , as well as the fact that he had alrea dy spent nine months in pretrial custody. On these grounds, he reques ts th at we redu c e his s entence or remand for res entencing. ¶ 39 Defendant acknowl edges that he did not preserve the se 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

- er ror 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

sentenc ing claim s 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 balan ced, 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 ofNo. 1 -17-1510

- 16 - plain

- error review is determining whether any error occurred.” Thompson , 238 Ill. 2d at 613. Thus, we first consider whether the trial court erre d. Here, we find no error. ¶ 41 We first reject defendant’s contention that the court was not empowered to impose

co nditions of “gang probation” because of lack of proof that he was in a gang. Defe ndant 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 sta ting that the Gang Intervention Unit serves “probationers who are gang members.” 4 However , a s t he State points out , no statute prevents that unit from su pervising defendant’s prob ation, or requires proof of gang activity as a pre requisite to imp osing such conditions. R ather, a trial court’s imposition of particular probation conditions is discret ionary. ¶ 42 Section 5 -6- 3(b) of the Unified Code of Corrections enumerates a number of permitted conditions of pro bation which may be imposed “in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the de fendant as det ermined for ea ch defendant in the pr oper discretion of the Cour t .” 730 ILCS 5/5

- 6.3 (West 2016). Thus, “ [t] he statute gives the trial court the discr etion 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 defenda nt. [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 b y 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 inclu des 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

.No. 1 -17-1510

- 17 - where no reasonable person wou l d take the view adopted by the t rial cour t

. 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 cond ition s imposed

are unr easonable , given the serious nature and circums tances 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 qual ify f or “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 spec ifically mentioned that defendant grew up in a “ crime

infested neighborhood where gang activity is rampant,” which could reasonably have raised the court’s concern that he was sus ce ptible to the influence of gangs.No. 1 -17-1510

- 18 - 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

. Def endant was con victed 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 y ears 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, th e record reflects that the court did take into account various mitigating fact ors in exercising its discretion not to impose a ny prison term. Indeed, the trial court commented that it was “taking a chance” on d efendant by only imposing probation. In imposi ng sentence, t he 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

- 19 - 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 addition ally discuss whether either pron g 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, w e reject defend ant’s suggestion that his trial counsel was ineffective for failing to properly preserve his sentencing challenge s . A defendant alleging ineffective assistance of counsel must prove prejudice, such that “absent counsel’s deficient performance there is a

re asonable 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 w e have rejected his claims of error with respect to sentenci ng , defendant cannot demonstrate any reasonable probability that the result would have been different, even had his trial counsel preserved the se 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 defend ant 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.No. 1 -17-1510

- 20 - ¶ 54 JUSTICE MARTIN, specially concurring: ¶ 55 I wholly concur with my collea gue’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 p robation. 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 natu re 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 f or 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.