## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Harris , 2013 IL App (1st) 120498

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DAVI D HARRI S, Defe ndant-Appe llant.

District & N o. First District, Second D ivision Docke t No. 1-12-0498

Filed September 10, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On appea l from the new sentenc es imposed on defe ndant for first degree murder a nd attempted ar

med robbe ry

followingthe commutation of the death sentenc e imposed for first degree murder, the ap p el late court reje cted defe ndant’s contentions that the trial court err ed in ex cl u d ing evidenc e of his innocenc e, that consec utive sentenc es wer e im p ro p erly imposed, that the m urder sentenc e was exc es s i v e and that the ex tended
term viol ated Apprendi
, since claims of innocenc e should have been raised in a suc c e s s iv e p o s tc o nv ic tion petition, consec utive sentenc es wer e approp ri at e wher e the victim was shot during an attempted arme d robber y , the 90-year sentenc e for murder was not disproportionate to the offe nse, and any Apprendi violation based on the victim’s ag e was harmless.

Dec ision Under Review Appea l fro m t h e Circuit Court of Cook County
, No. 93-CR-15879; the Hon. Thomas V. Ga iner, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Dar rel F. Oman, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and J anet C. Mahoney
, Assistant State’s Attorney s, of counsel), for the People.

Panel PRES I DI NG J USTI CE QUI

NN delivere d the judgme nt of the court, with opinion.
J ustices Har

ris and Connors conc urre d in the judgme nt and opinion.

OP INION

¶ 1 In 1995, defe ndant David Har ris was found guilty of first degree murder and attempted

arme d robber

y

. He was sentenc ed to death for the murder conviction, and his conviction and
sentenc e we re a ffirme d on direc t appea l. People v . Harris , 182 I ll. 2d 114 (1998). ¶ 2 There afte r, defe ndant soug ht relief pursuant to the Post-Convi ction Heari n g Act (A ct) (725 I L CS 5/122-1 et seq. (West 2010)). The circ uit court summarily dismiss ed his petitions; howeve r, the supreme court reve rsed in part and rema nded t h e cause for an evidentiar y hear ing on the issue of trial counsel’s alleg ed failure to investigate and prese nt e vidence in mitigation at the capital sentenc ing hearing. P eo p l e v. Harris
, 206 I ll. 2d 293 (2002). On J anuar y 10, 2003, howeve r, befor e a hearing was held, the then-Gove rnor commuted defe ndant’s death sentenc e to a term of natura l life imprisonment without the possibili ty of parole

. The circ uit court then, on motion of the State, dismiss ed defe ndant’s postconviction petitions on the g rounds that the Gover nor’s act of commutation rende red moot defe ndant’s claim of ineffe ctive assistance of counsel. This court simil arly dismiss ed defe ndant’s appea l, citing People v . W

atson , 347 I ll. App. 3d 181 (2004), and the num erous other ca ses which had found that any and all sentenc ing issues raised by a commuted defe ndant are re ndere d
moot by the Gover

nor’s act of commutation. People v. Harris
, 357 I ll. App. 3d 330, 332-34 (2005). ¶ 3 Defen d an t n ex t i nitiated fede ral habeas corpus proce eding s, and on J une 5, 2008, the United States District Court for th e No rt h ern District of I llinois g rante d defe ndant an evidentiar y hear ing on his c laim that trial counsel was ineffe ctive for failing to investigate and prese nt mitigating evidenc e at his capital sentenc ing hearing. United States ex rel. Harris

v. McCann
, 558 F. Supp. 2 d 8 2 6 (N

. D. I ll. 2008). On August 8, 2008, the district court enter ed a conditional wri t o f h a b ea s corpus , order ing that defe ndant be g iven a new sentenc ing he aring

. ¶ 4 Following a new sentenc ing hear ing, defe ndant was sentenc ed to consec utive t erms of 90 y ear s’ impri sonment for first degree murder and 15 y ear s’ imprisonment for attempted

-2-arme d robber y

. He now appea ls, contending : (1) t h at t h e t ri al court err ed in excluding discovery and evidenc e indicating that he was fac tually innocent of the char g es ag ainst him; (2) that the trial court err ed in imposing consec utive sentenc es wher e no bodily injury

occur red dur ing the commission of the trigg eringoffe nse; (3) that his 90-y ear sentenc e for first degree murder is excessive in light of cer tain mitigating fac tors; and (4) that the trial court sentenced him to an ex tended term in violation of Apprendi v. N ew Jerse y , 530 U.S. 466 (2000). F or the followingrea sons, we af firm.

¶ 5 I . BA CKGROUND ¶ 6 A. Evidenc e at Tr ial ¶ 7 The recor d shows, in rele vant part, that on t h e ev ening of J une 7, 1993, defe ndant and

s ev er al companions wer e riding in a car driven by Howar d McClinton and discussing a movie about car

jacking
, called “Mena ce I I Society ,” when McClinton pulled into a parking lot near 79th and Calumet Streets to speak with some g irls. It turned out that the g irls did not want to speak with him; howeve r, McClinton identified a potential carjacking victim, Clifford Chase, who was leaving the Chatham Food Center at t h e t i m e. As Chase was enter in g h i s car , McClinton pulled up near him and handed a gun to another passeng er, Antoine Moore, te lling him to “Jack him.” Moore then went and tapped on the w indow of Chase’s car , but Cha se did not open the door and started the ignition instead. At that point, Moore told Chase to g et out of the car and tapped on his window with the gun, but Chase tried to back up. Moore then said, “B ust him,” and defe ndant jumped out of the car and shot Chase twice. As the g roup fled, they laughed about the shooting. Clifford Chase ultimately died as a result of a

gunshot wound to the head. 1

¶ 8 B. The Capital SentencingHea ring ¶ 9 A f

te r the jury found defe ndant guilty of first degree murder and attempted arme d robber y , a capital sentenc ing hear ing was held befor e the trial court. At that heari n g, the State introduced a cer

tified birth cer

tificate of defe ndant showing that he was over 18 y ear s old at the time of the offe nse and the signe d jury verdic t forms for intentional and knowing murder and attempted arme d robber y

. Def endant stipulated to his elig ibilit y for the death pen alty
, and the c ourt also found that he was e ligible f or a se ntence of dea

th. ¶ 10 In ag gravation, the State initially introduced victim impact statem en t s fr o m Clifford Chase’s widow, Be rnice
, and his two daughters Nona Ocloo and Olivia Chase. It then called multip le w it

n e s s e s wh o testified about defe ndant’s past criminal activity
, which included two incidents apiec e of a

rmed c arja ckingand drugpossession. The State ente red into evidenc e

a cer tified statement of conviction showing that on J une 24, 1992, defe ndant pleade d guilty in one of the drug possession case s and rec eived 1 3 months’ probation. The State further
prese nted testimony conce rning multipl e rules violations by defe ndant during his

T he f o r e go i ng fa ct s ar e con ta ine d, in great er det ai l, in the sup re m e cou rt ’s opi nio n in 1 Peop le v. Ha rri s , 182 I ll . 2d 114 (19 98)

.
-3-incar cer ati o n

. T h ese incidents rang ed from essentially innocuous violations, like moving

b ac k and forth betwee n differ ent cells and interfe ring with the count, to very s er i o u s violations, such as possessing homemade knives in his cell and, in one instance, participating in “jumping” another

inmate. ¶ 11 The State lastly ca l l ed As s i s t an t S t at e’ s At t o rn ey (ASA) Peg gy Chiampas, who interviewe d defe ndant and was prese nt for the court-r eporte d statement he g ave on J une 15, 1993. She testified that defe ndant never expressed remorse for shooting Clifford Chase and that his demea

nor when admitting to the shooting was “[c]ool, calm and collecte d.” She also

rea d into the rec ord a portion of defe ndant’s court-r eporte d statement in which defe ndant stated that he had been a member of the Gang ster Disciples for about five y ear s and held the rank of assistant reg ent. Def endant state d that his duty was to make sure l aws and policies

wer e not broke n and to impose discipline in the event that they wer e, and he descr ibed the
rang e of discipline a s follows: “At the lea st Iwould do is a verba l warningand at the most I would do is to violate or beat them up.” Def endant stated t h at h e car

ried a “.38” that he obtained from a dope fiend for $50, that the gun was loaded with five bullets when he boug ht it, and that he fire d it twice to test it. ¶ 12 In mitigation, the defe nse did not prese nt any witnesses, but the parties stipulated that a police repor

t prepa red in connec tion with the arme d car jacking of Edwina Har

rison, one of the car jacking s mentioned in a g g ravation, described the gunman as 28 year s old and 5 fee t 6 inches tall. At th e t ime of t hat carjac king, defe ndant was 18 y ear s old and about 6 fee t 1 inch tall. Counsel also submitt ed 17 lett er s wr i t t en by defe ndant’s friends and family in

2 which the authors ref

lected on defe ndant’s positive qualities and expressed disbelief that he could have committed mur d er

. I n allocution, defe ndant stated that he had been “wr ong ly

acc used of doing a crime that I did not commit” and lamented that he would be taken awa y from his family

. ¶ 13 The trial court ultimately found no sufficie nt mitigating fac tor to prec lude the impositi on of the death penalty and thus sentenc ed defe ndant to death for the murder of Clifford Chase. The c ourt did not impose a sentenc e on def endant’ s attempted ar

med robbe ry

conviction.

¶ 14 C. Resentencing ¶ 15 As noted above, on August 8, 2008, the United S t ates District Court for the Northe rn District of I llinois order ed that defe ndant be g iven a new sentenc ing hearing. Be fore t hat hear ing was held, the trial court on rema nd ruled that it would rea d and co n s i d er t he
transcr ipts from defe ndant’s orig inal sentenc ing he aring

. ¶ 16 At the rese ntencing hear ing, Olivia Chase testified in ag g ravation that her fa t h er was about 70 y ear s old when he was murdere d. She also descr ibed the deter iorating condition of Be rnice Chase, Clifford’s widow, afte r his murder and noted that Be rnice died the previous sprin g

. She and her sister, Nona Ocloo, prepa red new victim impact statements for the

rese ntencinghear ing.

T his is def

end ant ’s hei ght in th e pr ese nte nce in vesti gatio n r epo rt

. 2

-4-¶ 17 Edwina Harrison an d former ASA Peg gy Chiampas, who i s now an associate judge of

the circuit court of Cook County , also testified ag ain at the rese ntencing hearing. Harr ison reiter ated her testimony from the previous sentenc ing hearing reg arding defe ndant’s theft of her car at gu np o i nt on J une 5, 1993. J udg e Chiampas testified that on J une 15, 1993, she int erv i ewed defe ndant for about 40 minutes, and that defe ndant agree d to g ive a courtrepor ted s t at ement. She also identified a Polaroid photogr aph taken of defe ndant in the interview room at Are a 2, which fairly and acc urate ly portrayed the way he appea red during the interview and at the time he signe d the court-r eporte d statement. On cross-e x amination, J udg e Chiampas stated that she did not notice an y injuries on defe ndant. On redire ct, she testified that she spoke to de fenda nt a lone while she was waiting for the cour t reporte r and that he did not complain to her at all about how he ha d been tr eate d. ¶ 18 In mitigation, the def ense c alled numer ous witnesses on defe ndant’s beha lf, including : friends and family who testified about his childhood g rowing up in bad neighborhoods with a father who was a

n intravenous dr

uguser; individuals who would employ defe ndant if he

wer e re lease d on parole ; former death r ow i nmates who testified a bout how defe ndant had matured; and a licensed clinical social worke r for the Offic e of the State Appellate Def ender who testified about defe ndant’s social and medical history

. The defe nse als o p re s ented a stipulation that defe ndant’s artwor k was featured in a prison art show at the Chicag o Cultural Center and that a video interview was made of him in connec tion with the show. The defe nse furnished a binder of materia ls for the court’s consideration, which included, inter alia
, the video interviewand some of his a rtwork. ¶ 19 At one point during the prese ntation of mitigation evidenc e, defe nse counsel attempted
to raise a claim of actua l innocenc e based on newly discovere d evidenc e. Citi ng section 5-5-4 of the Unified Code of Correc tions (Code) (730 I L CS 5/5-5-4 (West 2010)), counsel claimed that it was in the court’s discretion to hear an actua l innocenc e claim at the sentenc ing hear ing. The trial court reje cted this arg ument, howeve r, and found that section 5-5-4 of the Code did not authorize it to hol d a hea ringon actua l innocence . The c ourt stated: “The only way that I could possibly enter an order of actua l innoce n ce i s i f the conviction would have been set aside on collater al attack. That’s not what happene d here

. The conviction has alway s been affir med. I t was the s en t en cing hearing that posed t he problem, okay .” The court noted that if defe ndant “wa nts to g et up here and testify that he didn’t do this crime and that he was coer ced into confe ssing, that is something that I will listen to in mitigation.” Howeve r, the court stated that it was “not g oing to re- litigate motions to suppress that wer e a longtime ag o litigated, [and] affir med on appe al in his case.” ¶ 20 After the defe nse rested in mitigation, the parties prese nted ar gu m ent. Def endant then spoke in allocution and apolog ized “for what the Chase family has been throug h *** the loss that they have suffe red beca use of ignor ance and stupidit y ,” and “for all the things [he had] done back then.” He also expressed regret that he had n o t b ee n around to take car e of his family

. ¶ 21 In announcing sentenc e, the trial court noted that the defe ndant who appea red befor e the orig inal sentenc ing judge was a “ver y , very bad man,” and that it did not think that “anyone

-5-could say that the char acte r and the attitude of the defe ndant would indicate that h e was

unlikely to commit another crime.” Howeve r, the court n o t ed t h at it had signific ant mitigating evidenc e befor e it and “now believe[d] that the defe ndant’s criminal conduct was the result of circ u m s t an ces unlikely to rec ur.” That said, the court noted that its finding s “[did] not in any way lessen the fac t that t h i s d ef en d ant ended the life of an otherwise healthy
, h ap p y 7 3 -y ea r- old man who had jus t treated hi mself t o a new car beca use he was about t o retire .” The court also pointed out the eff ects on the vic tim’s family and noted: “I still have y et to he ar you say or find any evidenc e from any source that you regret shooting and killing Clifford Cha se.” The court then sentenc ed defe ndant to a n extended term of 90
y ear s’ imprisonment for first degree murder based on the fac t that the victi m wa s o v er 60
y ear s of ag e, and a consec utive term of 15 year s’ imprisonment for attempted arme d robber y

.

¶ 22 I I . ANALYSI S ¶ 23 Def

endant first contends th at t h e t ri al court err ed in excluding from his resente ncing hear ing dis co very and evidenc e indicating that he was fac tually innocent of the char g es ag ainst him. He cl ai m s t hat section 5-5-4(b) of the Code “expressly instructs the court to consider evidence of actual innoce n ce , ” t h oug h he acknowledg es t hat t here is no case law interpre ting this section. ¶ 24 The S tate responds that the trial co u rt p ro perly followed the mandate of the re viewing
court and limit ed the scope of the proce eding s on rema nd to a sentenc ing hearing. The State also responds that section 5-5-4 only allows the court that sets aside a sentenc e, in this case the fede ral district court, to d et er m i n e whether defe ndant was fac tually innocent of the char g es. ¶ 25 To deter

mine whether the trial court was require d to g rant defe ndant discovery and allow him to prese nt evidenc e of his fac tual innocenc e at his rese ntencing hearing, we look to the languag e of section 5 -5 -4 (b) of the C ode. I n doing so, we observe that “[t] he cardinal rule of statutory construction is to asce rtain and g ive eff ect to the leg islature’s intent.” People v. Comage
, 241 I ll. 2d 139, 144 (2011). T h at intent is best indicated by g iving the statutory languag e its plain and ordinary meaning

. Comage
, 241 I ll. 2d at 144. “To deter mine the plain meaning
, we must consider the statute in its entirety and be m i n d fu l o f the subject it addre sses.” Comage
, 241 I ll. 2d at 144. Our revie w is de novo

. Comage
, 241 I ll. 2d at 144. ¶ 26 Section 5-5-4(b) of the Code provides:

“I f a conviction or sentenc e has been set aside on direc t revie w or on collater al attack and the court deter

mines by clea

r and convincing evidenc e that the defe ndant was fac tually innocent of the char g e, the court shall enter an order expunging the rec ord of arr est from the officia l rec ords of the arr esting authority and order that the rec ords of the cler k of the circ uit court and Depa

rtment of State Police be seale d until further o rder of the court upon g ood cause shown or as otherwise provided here in, and the name of the defe ndant obliterated from the official index reque sted to be kept by the circuit court cler k under Section 16 of the Clerks of Courts Act in conne ction with the arr est and c onviction for the offe nse but the order shall not aff ect any index issued by the circ uit court cler k befor e the entry of the orde r.” 730 I L CS 5/ 5-5-4(b) (West 2010).

-6-¶ 27 Her e, contra ry to defe ndant’s claim, we find nothing in the languag e of section 5-5-4(b) of t he C ode that require s a trial court to allow defendant to conduct disco v er y an d prese nt evidenc e of fac tual innocenc e on a rema nd for rese ntencing

. Rather, section 5-5-4(b) mere ly states what is to happe n in the event that a conviction or sentenc e is set aside by a cour t of

re v iew or by a court in a collateral procee ding and a deter mination is made that defe nd an t

was fac tually innocent of the char g e. That said, it makes sense that this s t at u t e, which
g overns r esente nces, w ould not address the pr ocedur es for raisingand litigating a

claim of
actua l innocenc e. The Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq. (West 2010)), of which defe ndant is clea rly awa re, alre ady provides a compre hensive proce dure for pursuing such claims. Under defe ndant’s proposed rea ding of section 5-5-4(b), howeve r, any defe ndant whose sentenc e has been fortuitously overturne d on a sentenc ing err or would be allowed a full-blown evidentiar y hearing on the issue of actua l innocenc e at his rese ntencing hear ing. Meanwhile, all other criminal defe ndants would be require d to file a postconviction petition in compliance with the Act. We find no indication that such separ ate treatment was intended by the leg islature. We there fore conclude that the plain languag e of section 5-5-4(b) of t he C ode does not require a trial court to allow defendant to prese nt evidenc e of fac tual innocenc e on a remand for rese ntencing and, accor dingly
, that the t rial court d id not err in decliningdefe ndant’s re quest to prese nt such evidenc e in this case. ¶ 28 During his rese ntencing evidentiar y hearing, defe ndant called his brother, Rashid Harr is, who testified that defe ndant confe ssed as a result of being beate n while in cu s t o d y

. The circ uit court allowed this testimony

. Prior to his trial, defe ndant did file a motion to suppress his statements, alleg ing the y wer e the r esult of coer cion. The trial court denied this motion afte r an evidentiar

y hear ing. In his direc t appea l to our supreme court, defe nse counsel argued that defe ndant’s statements should have been suppressed beca use defe ndant was remove d from Cook County jail and taken to Are a 2 to be interviewe d, arguing that this violated the I llinois Habeas Corpus Act (735 I L CS 5/10-131 (West 1994)). The defe ndant did not raise
on appea l his assertion that his statements were c oerc ed. People v . Harris , 182 I ll. 2d 114, 147-50 (1998). The supreme court a ls o a f f ir me d d e f e n d a n t’ s c o n victions for attempted arme d robber y , reje cting his argument that it was improperly based on the same phy sical act as the murder. Harris , 182 I ll. 2d at 133-34. ¶ 29 Def

endant subsequently

filed two postconviction petitions. A judge other than the trial judge denied these petitions without an evide ntiary hearing. Defe ndant argued that he was entitled to an evidentiary h earing beca use he was actua lly innocent. Def endant attache d aff idavits from his brothers Rashid and Dar rell, who stated that defe ndant was at home with them watching a movi e at the t ime of t he shoot i n g. T h e d ef endant also attache d aff

idavits from two of his codef

endants in which they aver red t h at d ef

en d an t was not prese nt at the time of the shooting. The supreme court aff irmed the circ uit court’s dismiss al of defe ndant’s claim of actua l innocenc e without an evidentiary hearing. The court held that defe ndant’s brothers’ aff

idavits did not constitute newly discovere d evidenc e. People v. Harris
, 206 I ll. 2d 293, 301 (2002). The supreme court fu rt her held that the defe ndant’s codef endants’ aff idavits “[were ] not of such a conclusive char acte r that they would probably chang e the
outcome on retria l.” Harris
, 206 I ll. 2d at 302. Howeve r, the supreme cou rt did find that defe ndant made a substantial showing that he rec eived ineffe ctive assistance of counsel for

-7-failing to investigate and prese nt mitigation evidenc e in his capital sentenc ing h ea ri ng

.

Har r is , 2 0 6 I l l. 2d at 304-06. The supreme court rema nded the case to the circ uit court to addre ss this i ssue. ¶ 30 Be fore the circ uit court could hold an evidentiar y hearing on this issue, Gover nor Ge org e Ry an commuted h i s d ea t h sentenc e and imposed a sentenc e of natura l life without the possibili ty of parole

. The circ uit court then dismiss ed defe ndant’s postconviction petition as moot beca

use the issues raised addre ss ed only sentenc ing issues. This court aff irmed the dismiss al
, h o lding that the Gover nor’s commutation conver ted defe ndant’s “judicially imposed sentenc e” into “an essentially u n re v i ewable ex ecutively imposed one.” People v. Harris
, 357 I ll. App. 3d 330, 333-36 (2005). The supreme court denied defe ndant’s petition for lea ve to appe al. ¶ 31 Def

endant then filed a habeas co r p u s petition in fede ral district court pursuant to 28 U.S.C. § 2254(d)( 1). United States ex rel. Harris v. McCann
, 558 F. Supp. 2d 826 (N.D. I ll. 2008). In his petition, defe ndant raised five all ega t i o n s of ineffe ctive assistance of trial counsel and four al l ega t i ons not involving ineffe ctive assistance of trial counsel. None of these alleg ations involved any alleg ations of coer cion, nor did defe ndant alleg e that his trial, appellate , or postconviction counsel was ineffe ctive for not a sserting that his statements to
t h e p o lice wer e coer ced. The district court considere d all nine of the issues rais ed b y defe ndant in his habeas corpus petition and conclude d “the Court g rants Har ris’ reque st for

an evidentiar

y hear ing on the issue of whether his attorney p rovided constitutionally ineffe ctive assistance of counsel for failing to investigate and prese nt mitigation evidenc e at the sec ond stag e of his ca pital sentencinghearing.” Harris , 558 F. Supp. 2d at 842. ¶ 32 The district c ourt specific ally reje cted sever al contentions raised in de fenda nt’s fede ral petition which defe ndant raised in his rese ntencing hearing. The court agree d wi t h t he

s upreme court’s holding that: “ ‘[t] he verdic ts returne d by the jury clea rly estab l i s h ed t h e defe ndant’s commission of the murder in the course of attempted arme d robber y .’ ” Harris
, 558 F. Supp. 2d at 844 (quoting Harris
, 182 I ll. 2d at 155). The district court reje cted defe ndant’s asser

tion that the I llinois Supreme Cou rt ’s re jection of defe ndant’s postconvict i o n as s er tion of an alibi was err oneous. Harris
, 558 F. Supp. 2d at 847. The district court also reje cted defe ndant’s as s ertion that his statements should have been suppressed beca

use he was improperly remove d from the Cook County jail. Harris
, 558 F. Supp. 2d at 848-49. In the instant case , both our supreme court and the fede ral district court considere d and reje cted defe ndant’s claims reg arding actua l innocenc e. Section 5-5-4(b) of the Code does not provide a basis for the defe ndant to reope n this issue. Any claims of actua l innocenc e asser

ted by defe ndant must be brought t o t h e circ uit court’s attention throug h filing a succe ssive postconviction petition pur suant to the require ments of section 122-1(f ) of the Ac t, demonstratingcause and pre judice. 725 I L CS 5/ 122-1(f ) (West 2010). ¶ 33 Def

endant next contends that the trial court err ed in impos i n g co n s ec u t i v e sentenc es pursuant to section 5-8-4 of the Code (730 I L CS 5/5-8-4 (West 1992))

. C i t i n g P eople v. W hitney , 188 I ll. 2d 91 (1999), he claims that only concur rent sente nces c ould be imposed wher e no bodily injury occur red during the comm ission of the trig g ering offe nse, i.e.
, attempted ar

med robbe ry . The State re sponds that defe ndant’s consecutive sentences were
proper beca

use he did, in fac t, inflict g reat bodily harm during the commission of attempted

-8-arme d robber y

. ¶ 34 Section 5-8-4 of the Code provides:
“The court shall not impose consec utive sentenc es for offe nses which we re c ommitt ed

as part of a single course of conduct during which there was no substantial chang e in the
nature of the criminal objective, unless, one of the o ff en ses for which defe ndant was convicted was a Class X or Class 1 felony and the defe ndant i n fl i ct ed sever e bodily injury ***.” 730 I L CS 5/ 5-8-4( a) ( West 1992).
In W hitney
, our supreme court interpre ted this provision to require t he imposit ion of

consec utive sentenc es only “whe re the defe ndant has been convicted of either a Class X or Class 1 felony and wher e he had inflicted sever e bodily injury during the commission of that felony .” (Empha sis added.) W hitney , 188 I ll. 2d at 98-99. ¶ 35 Her e, ther e is no dispute betwee n the par ties that defe ndant’s convic tion of the Class 1 felony of attempted arme d robber y serve s as a trig g ering offe nse under section 5 -8-4. 720 I L CS 5/8-4(c) (2), 18-2 (West 1992). The only dispute is whether he inflicted sever e bodily injury duringthe commission of that offe nse. ¶ 36 In addre ssing this issue, we find People v. Thompson
, 331 I ll. App

. 3 d 9 4 8 (2 0 02) instructive. I n Thompson
, 331 I ll. App. 3 d at 950, defe ndant and his acc omplice devised a plan to rob someone or steal a car

. The acc omplice flag g ed down a cab, and they direc ted the driver to an address near 119th and L owe Stree ts, in Chicag o. Thompson
, 331 I ll. App. 3d at 950. The accomplice then s hot the driver in the back of t he head, and defe ndant go t o ut of the car , opened the driver- side door, and took some money from the victim’s front pocket. Thompson
, 331 I ll. App. 3d at 950. He was sentenc ed to consec utive, respe ctive terms of 70 and 35 y ear s’ imprisonment for murder and arme d robber y , but subsequently maintained that

a consec utive sentenc e was not authorized under section 5-8-4( a). Thompson
, 331 I ll. App. 3d at 950, 955. This court a ffirme d his consecutive se ntence , noting:
“In the prese nt case , the require ment that the bodily injury be inflicted on the victim of t he trigg ering

felony is satisfied si nce there was onl y one victim

. Wit h reg ard to the

nece ssary connec tion betwee n the t rig g ering offe nse and t h e v ictim’s bodily harm, the evidenc e shows defe ndant and [hi s acc omplice] planned to rob the victi m prior to enter ing the victim’s cab. Upon being driven to the desig nated addre ss, [t he acc omplice] shot the victim in the head, prompting defe ndant to take a small amount of money from the victim’s person and then flee the scene with his acc omplice. Notably
, this c ourt has

rec ognized that while murder itself is not a trig g ering felony under the version of section 5-8-4( a) applicable here, the death of a victim during the commi ssion of t he trigg ering offe nse may provide the basis for a finding of sever e bodily injury

. [C itations.] Ba sed on the evidenc e, we conclude the victim’s death, i.e.
, the sever e bodily injury
, occurred essentially simult aneously with the arme d robber y and, hence
, the victim’s death

occur red during the commiss i o n o f the trig g ering crime as direc ted by W hitney ***.” Thompson , 331 I ll. App. 3d at 956-57. ¶ 37 Her e, as in Thompson
, Chase was the only victim of the trig g ering felony

. There was a lso

a conn ec t ion betwee n his death and the attempted arme d robber y wher e he was shot by defe ndant afte r Antoine Moore was unsucce ssful in g etting him out of his car at gunpoint and

-9-said, “B ust him.” Moreove r, the death and the attempted arme d robber y occur red essentially simult aneously

. Under the circ umstances, we co n cl u d e that the trial court did not err in imposing conse cutive sente nces. Thompson , 331 I ll. App. 3d at 956-58. ¶ 38 Def

endant nonetheless takes issue with this conclusion and claims that the supreme c ourt has already held “that the m urder and the attempted armed robbery we re separate acts and that the attempted arme d robber y occur red prior to the victim’s death.” He claims that “the
two shots wer e lega lly separ ate actions for sentenci n g p urposes, and the result of one shot cannot simply be transferred t o t h e o t her shot.” For clar ity
, we note that the porti on of t he
supreme c ourt’s opinion on direct a ppeal r elied upon by

defe ndant is as follows:
“The defe ndant makes the related contention that h i s convictions for first degree murder and attempted arme d robber y wer e improper ly

based on the s ame phy sical act, the shooting of the victim by the defe ndant. Citi ng People v. King
, 66 I ll. 2d 551 (1977), the defe ndant contends that multipl e convictions may not be based on the same act. What the defe ndant overlooks, howeve r, is that he fire d two shots at the victim: the first shot shat t er ed the car window but did not strike the victim, and the second shot struck the victim in the head, killing him. Whil e the defe ndant’s conviction for first degree murder
must be based on the second, fata l shot, his conviction for attempted arme d robber y may be based on the first shot, as our prec eding discussion makes clea r. *** The defe ndant’s
separ ate convictions for murder and attempted arme d robber y are there fore proper in this

case .” Harris , 182 I ll. 2d at 133-34. ¶ 39 Contrary to defe ndant’s claim, we find it insignifica nt for purposes of section 5-8-4 that the supreme court considere d the two shots fired by defe ndant t o b e separ ate acts for
purposes of the one act, one crime rul e. The issue is whether defe ndant inflicted sever e bodily injury during the commission of the trig g ering offe nse, i.e.
, attempted arme d robber y

. As noted above, the rec ord shows that Clifford Chase was shot and killed essentially simult aneously with the attempted arme d robber y

. There fore
, in acc ordanc e with Thompson
, we find that Chase’s death occur red du ring the commission of the trig g ering offe nse and aff irm defe ndant’s conse cutive sentence. W e note that this is t he same conclusion re ache d by the fe dera l district court. Harris , 558 F. Supp. 2d at 844. ¶ 40 Next
, defe ndant contends that the t rial court abused its discretion in sentenc ing him to 90 y ear s’ i m p ri s onment for first degree murder. The State responds that the trial court proper ly sentenc ed defe ndant afte r considering all of t h e fac tors in ag gravation and mitigation. ¶ 41 It is well settled that a revie wing court will not disturb the sentenc e imposed by the trial
court absent an abuse of discretion. People v. Cabrera
, 116 I ll. 2d 474, 494 (1987). Where,

as here
, the sentenc e falls within the presc ri b ed s t atut ory limit s, it will not be disturbed unless it is g reatly at varia nce with the purpose and spirit of t h e law or is manifestly disproportionate to the offe nse. Cabrera
, 116 I ll. 2d at 493-94. A sentenc e will not be found disproportionate where it is commensurate wit h the s eriousness of the crime and adequate consideration wa s g iv e n to a ny r e le v a nt mi ti g a ti n g circ umstances, including the reha bilitative potential of def

endant. People v . Perez , 108 I ll. 2d 70, 93 (1985). ¶ 42 Her e, defe ndant claims that his 90- y ear sentenc e for first degree murder is e x cessive in

-10-light of cer tain mitigating circ umstances; namely
, that he was 18 y ear s old at the time of the offe nse, had no prior violent convictions, and was found by the trial court to be reha bilitated and u n l i k el y t o reof

fend. Howeve r, we note that the trial court is presumed to have considere d defe nd a

nt’ s a g e and criminal history in making its sentenc ing deter mination, both of which wer e in the prese ntence investigation repor t. People v. Partin
, 156 I ll. App. 3d 365, 373 (1987). It was also not re quired to g ive greater weight to the reha bilitative potential of defe ndant than to the seriousness of the offe nse. People v. Gomez
, 2011 I L App (1st) 092185, ¶ 87. Essentially
, in reque sting a reduc tion in sentence, d ef en d an t is asking this court to reba lance the appropr iate fac tors and independe ntly conclude that his sentenc e is excessive; howeve r, that is not our function. People v. Burke
, 164 I ll. App. 3d 889, 902 (1987) (citing People v . Cox , 82 I ll. 2d 268, 280 (1980)). ¶ 43 In this case , defe ndant was convicted of first degree murder and elig ible for an extendedterm sentenc e of betwee n 60 and 100 year s’ imprisonment beca use the victim was 60 y ear s of ag e or older at the time of the offe nse. 730 I L CS 5/5-5 -3

. 2 (b )( 4 )( i i), 5-8-2( a)( 1) (West 1992). The 90-year sentenc e imposed by the trial court fell within this presc ribed rang e and

wa s not disproportionate to the offe nse wher e defe ndant shot and killed the elder l y M r. Chase as he was try

ing to f lee a n arme d robber

y attempt, then l aughed about it af terwa rds. Under the circ umstances, we find no abuse of discretion in the term imposed to pe rmit a ny modification by

this court. People v . Almo , 108 I ll. 2d 54, 70 (1985). ¶ 44 Def

endant lastly contends that his e xten d e d

- ter m s e nten c e f

o r f irst degree murder violate s Apprendi v. New Jerse

y , 530 U.S. 466 (2000), beca use the ag g ravating fac tor of the victim’s
ag e was not proper ly submitt ed to a jury and proved beyond a rea sonable doubt. Our supreme court has noted that “[a]n Apprendi violation is not per se reve rsible err or and may be subject
to a harmless-e rror analy sis.” People v. Jones
, 219 I ll. 2d 1, 36 (2006). Her e, t here was a stipulation betwee n the parties at trial establishing th at Dr

. Ba rry L ifschultz, the assistant medical examiner who per formed the autopsy on Clifford Chase, would have testified that Chase “appe ar[ed] the stated ag e of seventy y ear s old.” At defe ndant’s rese ntencing hear ing, Clifford Chase’s daughter, Olivia Chase, also testified that her fathe r was about 70 y ear s old when he was murdere d. This testimony went uncontested. Under the circ umstances, we find that any Apprendi violation based on the victim’s ag e in this case was harmless err or. Jones
, 219 I ll. 2d at 36. ¶ 45 Fo r t h e re as o n s s t at ed
, we af fi rm defe ndant’s consec utive sentenc es of 90 y ear s’ imprisonment for first degree murder, and 15 y ear s’ imprisonment fo r att empted arme d robber y

.

¶ 46 Affir

med.

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