{ "id": 5254755, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD BRACE, Defendant-Appellant", "name_abbreviation": "People v. Brace", "decision_date": "1991-12-18", "docket_number": "No. 3-90-0498", "first_page": "152", "last_page": "156", "citations": [ { "type": "official", "cite": "223 Ill. App. 3d 152" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "319 N.E.2d 764", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "767" } ], "opinion_index": 0 }, { "cite": "59 Ill. 2d 276", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958767 ], "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0276-01" ] }, { "cite": "430 N.E.2d 1346", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1355" } ], "opinion_index": 0 }, { "cite": "88 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083469 ], "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0129-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "543 N.E.2d 324", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "327" } ], "opinion_index": 0 }, { "cite": "187 Ill. 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App. 3d", "case_ids": [ 2667332 ], "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0531-01" ] }, { "cite": "558 N.E.2d 1277", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592673 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0599-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] } ], "analysis": { "cardinality": 629, "char_count": 10264, "ocr_confidence": 0.784, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15696185376058605 }, "sha256": "6b109f36e387247b56915d39e9088a8ee7d349774dac8b5f0a33c2af96d20657", "simhash": "1:da38730f730fa6d5", "word_count": 1759 }, "last_updated": "2023-07-14T19:46:44.574739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD BRACE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SLATER\ndelivered the opinion of the court:\nThe defendant, Donald Brace, was convicted of attempted murder (Ill. Rev. Stat. 1989, ch. 38, par. 8 \u2014 4(a)) and sentenced to 12 years\u2019 imprisonment. On appeal, he contends that the State failed to prove beyond a reasonable double that he was not justified in the use of deadly force in defense of his son and that the trial judge abused his discretion in imposing sentence. We affirm.\nShortly before 2 a.m. on January 1, 1987, St. Anne police officers Steve Abrassart and Michael Caraway observed a blue pickup truck leave the St. Anne American Legion. After it failed to stop at a stop sign, the officers, driving in a marked squad car, activated their lights and siren. The vehicle proceeded several blocks to the defendant\u2019s home before it came to a stop. Paul Brace, the defendant\u2019s 20-year-old son, was the driver of the pickup. Officer Caraway told Paul Brace that he was going to be issued a ticket for running a stop sign. After a brief argument, Paul Brace accompanied the officers to the squad car. Once inside the car, the officers noticed a strong odor of alcohol emanating from Paul Brace. They advised him that he was also under arrest for driving under the influence (DUI). At that point, Paul Brace tried to leave the squad car. Officer Caraway ran around to Brace\u2019s door in an attempt to keep him in the car, but Brace pushed Caraway and began running from the squad car. Officer Abrassart then ran after and tackled Paul Brace. Both men fell to the ground with Abrassart on top of Paul Brace. As they landed on the ground, Paul Brace cut his face on the gravel in the roadway and his forehead began bleeding. Abrassart attempted to handcuff Paul Brace\u2019s hands behind him as Brace struggled. Paul\u2019s parents came out of the house, approached the scene and asked Abrassart what he was doing.\nThe officers told Paul\u2019s parents that their son was under arrest for DUI. As the defendant reached out to push Abrassart off of Paul, Caraway stepped in between. Caraway and the defendant engaged in a shoving match. Pat Brace, defendant\u2019s wife, told the defendant to get his gun. The defendant then said, \u201cI\u2019m going to get my gun and kill these motherfuckers.\u201d He started running for the house.\nAbrassart instructed Caraway to call for backup. Caraway stood at the open driver\u2019s door to the squad car, grabbed the microphone and requested a backup, indicating that they had a fight going on and that he believed a man may be going into the house to get a gun.\nThe defendant then emerged from the front door of his house and stood on the porch with a .22 caliber rifle pointed at Caraway. The defendant fired three shots, and Caraway felt a sharp pain in his right arm. He dropped the microphone, pulled out his service revolver and shot it towards the defendant on the porch. When Abrassart heard Caraway\u2019s weapon clicking and saw that the defendant was still standing on the porch aiming the rifle at Caraway, Abrassart pulled his weapon and fired three shots at the defendant. The defendant was struck once in the hand and twice in the abdomen.\nPat Brace went to the porch to check on her husband and saw a gun there. Defendant told her to move the gun, and she took it into the house. Shortly after the occurrence, People\u2019s exhibit 1, an automatic .22 caliber rifle, was found beneath the bed in defendant\u2019s bedroom.\nExpert testimony adduced at the trial supported the policemen\u2019s version of the occurrence. The bullet that severely injured Caraway\u2019s right arm passed through his body. A second shot also hit Caraway, passing through his vest embedding in his holster. Although it was not clearly identifiable, the forensic scientist believed it to be a .22 caliber bullet or projectile. The bullet removed from the defendant Donald Brace was identified as having come from Officer Abrassart\u2019s weapon. Additionally, two spent .22 caliber casings were found and determined to have come from the defendant\u2019s rifle.\nWe first address the defendant\u2019s contention that the State failed to prove beyond a reasonable doubt that he was not justified in the use of deadly force in defense of his son. Upon review, all of the evidence is to be considered in the light most favorable to the prosecution. The reviewing court has the power to reverse only if it can be concluded that no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In this respect, the trier of fact is responsible for determining the credibility of the witnesses and the weight to be given their testimony. People v. Maloney (1990), 201 Ill. App. 3d 599, 558 N.E.2d 1277.\nThe jury was specifically instructed on the defendant\u2019s theory that he was acting in defense of another. In addition, the jury was specifically instructed that to find the defendant guilty of attempted murder, it must find, beyond a reasonable doubt, that the defendant was not justified in using the force which he used. Thus, the jury was properly instructed that the State had the burden of proving beyond a reasonable doubt that the defendant was not justified in the use of deadly force.\nWhether the defendant\u2019s subjective belief that he was justified in using deadly force was reasonable is a question of fact for the jury to decide. (People v. Collins (1989), 187 Ill. App. 3d 531, 535, 543 N.E.2d 572, 574.) A jury may consider the defendant\u2019s act of arming himself before confronting the victim in rejecting the defendant\u2019s claim that he was acting in self-defense. (People v. Rosas (1977), 52 Ill. App. 3d 555, 557, 367 N.E.2d 986, 988.) A person may use deadly force to protect himself or another only if he reasonably believes that he or the other person is in imminent danger of death or great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, par. 7 \u2014 1.) The test is what the defendant, as a reasonable man, believed under the circumstances. People v. Rodriguez (1989), 187 Ill. App. 3d 484, 489, 543 N.E.2d 324, 327.\nThe defendant observed one police officer struggling with his son in an attempt to handcuff him. Defendant was kept from interfering in the struggle by a second police officer. The defendant admitted that neither police officer had his weapon drawn. Defendant did not directly testify to seeing either officer strike his son. The defendant did not testify that he believed that his son was in imminent danger of death or great bodily harm.\nGiven the circumstances of this case, a rational trier of fact could conclude, beyond a reasonable doubt, that the defendant was not justified in the use of deadly force, i.e., in going into his home, obtaining a loaded rifle, aiming it at one of the police officers, and discharging it at the police officer. Therefore, we will not disturb the jury\u2019s finding.\nThe defendant next argues that the trial court abused its discretion in sentencing him to 12 years\u2019 imprisonment. He notes that at the time of the offense he was 48 years old, was under strong provocation, had a limited criminal record, and was gainfully employed. He also points out that his criminal conduct was the result of circumstances unlikely to recur.\nWe begin by noting that a trial judge\u2019s determination of a proper sentence will not be disturbed absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Furthermore, a reviewing court is not a sentencing court and may not substitute its judgment for that of the trial court merely because it would have balanced the appropriate factors differently. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.\nAttempted murder is a Class X felony, which carries a mandatory term of imprisonment of between 6 and 30 years. (Ill. Rev. Stat. 1989, ch. 38, pars. 8 \u2014 4(c)(1), 1005 \u2014 8\u20141(a)(3).) The defendant was sentenced to a 12-year term of incarceration. This is at the low end of the 6- to 30-year term prescribed for the offense. It is clear from the trial court\u2019s comments at the sentencing hearing that it weighed and considered both the mitigating and aggravating factors. In light of the fact that the defendant caused serious harm to a police officer by shooting him while he was in the performance of his official duties, we find that the trial court did not abuse its discretion.\nFinally, we address the defendant\u2019s argument that the prosecutor erred in recommending a sentence in excess of the minimum allowed for the offense. Prior to trial, the parties entered into a plea agreement in which defendant pleaded guilty to attempted murder in exchange for the minimum sentence of six years. The defendant subsequently withdrew his guilty plea and chose to go to trial. The defendant contends that it was improper for the prosecutor to recommend a longer sentence upon conviction than the parties had agreed to in the earlier plea agreement.\nIt is not improper for a prosecutor to seek a penalty greater than that offered in plea discussions. (People v. Lewis (1981), 88 Ill. 2d 129, 149, 430 N.E.2d 1346, 1355.) Moreover, the fact that the trial judge imposes a sentence greater than that imposed upon the acceptance of a guilty plea does not, standing alone, taint the sentence. (People v. Morgan (1974), 59 Ill. 2d 276, 281, 319 N.E.2d 764, 767.) In the instant case, the prosecutor, having recognized the earlier proffered plea, cited factors in aggravation and asked only that the trial judge impose a \u201cmoderate term of imprisonment.\u201d The trial judge noted that he was not the judge who took the prior plea, that many factors go into a plea negotiation, and that he was imposing sentence based on the individual facts of this case.\nThe judgment of the circuit court of Kankakee County is affirmed.\nAffirmed.\nBARRY and HAASE, JJ., concur.", "type": "majority", "author": "JUSTICE SLATER" } ], "attorneys": [ "Karen Munoz, of State Appellate Defender\u2019s Office, of Springfield, and Joseph N. Ehmann, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "William Herzog, State\u2019s Attorney, of Kankakee (John X. Breslin and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD BRACE, Defendant-Appellant.\nThird District\nNo. 3-90-0498\nOpinion filed December 18, 1991.\nKaren Munoz, of State Appellate Defender\u2019s Office, of Springfield, and Joseph N. Ehmann, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nWilliam Herzog, State\u2019s Attorney, of Kankakee (John X. Breslin and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0152-01", "first_page_order": 176, "last_page_order": 180 }