{
  "id": 511414,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH DAVIS, Defendant-Appellant",
  "name_abbreviation": "People v. Davis",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH DAVIS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE TULLY\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Kenneth Davis was found guilty of first degree murder and sentenced to 55 years in prison. He appeals, raising as issues whether: (1) his sentence was proper; (2) the victim impact statements were properly admitted at sentencing; (3) Public Act 89\u2014404 (Pub. Act 89\u2014404, eff. August 20, 1995) violates the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, \u00a7 8(d)); and (4) the mittimus was in error. We affirm defendant\u2019s conviction and sentence and correct the mittimus.\nThe following evidence was adduced at trial. Around midnight on August 25, 1995, Charles Brown died from multiple gunshot wounds. Xenobia Anderson testified that she was standing on the front porch of her house on 59th street in Chicago, across from Hermitage Park on August 25, 1995, at midnight. She saw a man run toward her house from the park and heard someone yell, \u201cget the mother------.\u201d She recognized the man from the neighborhood and later identified him as Charles Brown. Another man chased Brown from the park and threw a stick at him. Brown continued running west on 59th Street. Anderson ran into her house and saw and heard gunfire as she looked out her front door. The gunshots came from the parking lot of an abandoned Jewel store, located at the corner of 59th and Woods Streets. When Anderson went to investigate, she found Brown lying facedown in the parking lot.\nLeroy Litzey was sitting on the steps of his house, located across the street from the Jewel parking lot. Around midnight, he heard someone yell \u201cget the mother------\u201d and saw three men chase a man. As the man ran through the parking lot, Litzey heard two gunshots and saw the man fall facedown. Then Litzey saw one of the other men stand over the victim and shoot him twice more in the back.\nRonald Gavin testified that he and defendant were playing basketball in Hermitage Park on August 25, 1995, until the lights went out around 10:30 or 11 p.m. Brown came by the park around 10 p.m. Gavin said \u201c[W]hat\u2019s up Charley?\u201d and told him that he \u201clooked like a dick boy,\u201d which meant that he looked like a detective. Brown left the park but returned 10 minutes later with a knife. He told Gavin, \u201cI got your dick boy,\u201d and cut Gavin\u2019s arm with the knife. Gavin then ran out of the park. When he saw that Brown was chasing him, he hid behind the abandoned Jewel. He yelled for help but was unsure if anyone responded.\nAt trial, Gavin was shown his signed written statement, but he stated that it was not what he told the police. According to Gavin, in his statement to the police he said that he yelled to defendant for help and saw defendant chasing the victim with a gun. He had also stated that when he spoke with defendant a few days after the shooting, defendant told him he had \u201cgotten the guy\u201d and that a friend of theirs had gotten rid of the gun. In his grand jury testimony, Gavin related that he saw defendant carrying and firing a chrome .38-caliber gun at Brown. At trial, he explained that he remembered stating that he saw defendant and others chasing Brown through the park, but did not remember admitting that he saw defendant carrying a gun. He further testified that he only heard the shots but did not see them being fired.\nAssistant State\u2019s Attorney Mitchell Cohen testified that defendant gave a handwritten statement on September 18, 1995. Defendant said that on August 25, 1995, he was playing basketball in the park with his friends. Brown stopped by and argued with Gavin. Brown left but returned and chased Gavin around the park. Gavin called to defendant for help. Defendant chased Brown out of the park and toward the Jewel parking lot. Defendant saw Gavin get away from Brown, but defendant still continued chasing Brown into the parking lot. When defendant was within 6 to 10 feet of Brown, he pulled out his gun and fired twice. Defendant saw Brown arch his back and stop running, then stagger and fall face forward. Defendant walked over to Brown and, when he was two feet away, he shot him twice more in the back.\nThe jury found defendant guilty. At sentencing, three victim impact statements were read by the assistant State\u2019s Attorney from Barbara Garner, Brown\u2019s sister; Timothy Lamont Brown, Brown\u2019s brother; and Maurice Clegg, Brown\u2019s brother. They asked the trial judge for a harsh penalty and expressed their grief and anger. Brown\u2019s mother, Neicy Brown, testified that Brown had been a good person and had been active in his church, and she expressed grief over his loss. After hearing all the evidence, the trial court sentenced defendant to 55 years\u2019 imprisonment. The trial court stated that a change in the statute for crimes committed after August 20, 1995, made defendant ineligible for any good-conduct credit.\nDefendant first contends that the trial court abused its discretion in sentencing him because it gave insufficient weight to the mitigating factors. In order to challenge the correctness of the sentence or any aspect of the sentencing hearing, a written motion must be filed within 30 days of sentencing. People v. Reed, 177 Ill. 2d 389, 696 N.E.2d 584 (1997), citing 730 ILCS 5/5\u20148\u20141(c) (West 1994). When defendant failed to file a postsentencing motion, he waived the issue for purposes of appeal. \u201cPlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d 134 Ill. 2d R. 615(a). \u201c[P]lain error is applicable, for example, where consecutive or extended sentences are imposed without legal justification.\u201d People v. Reed, 282 Ill. App. 3d 278, 281, 668 N.E.2d 51 (1996). The sentencing range of imprisonment for first degree murder is 20 to 60 years. 730 ILCS 5/5\u20148\u20141(a)(1)(a) (West 1994). Defendant was sentenced within the statutory range to 55 years in prison. There is no basis in this case for application of the plain error exception. Accordingly, section 5\u20148\u20141(c)\u2019s specific requirements, along with goals of judicial economy and a record which includes a sentencing court\u2019s reasoned judgment, demand application of the waiver rule.\nDefendant next asserts that he was prejudiced by the admission of four victim impact statements at sentencing, in violation of the Rights of Crime Victims and Witnesses Act. 725 ILCS 120/1 et seq. (West 1994). Defendant claims that the trial court\u2019s error in considering these statements requires the court to grant him a new sentencing hearing. The statutory definition of a \u201ccrime victim\u201d includes \u201ca single representative who may be the spouse, parent, child or sibling of a person killed as a result of a violent crime perpetrated against the person killed.\u201d 725 ILCS 120/3(a)(3) (West 1994). Defendant argues that the trial court erred because, instead of considering the victim impact statement of \u201ca single representative,\u201d it considered the victim impact statements from four people. The four people, qualified as crime victims under section 3(a)(3).\nThe Rights of Crime Victims and Witnesses Act states: \u201cNothing in this Act shall create a basis for vacating a conviction or a ground for appellate r\u00e9lief in any criminal case.\u201d 725 ILCS 120/9 (West 1994). The Act \u201cwas intended as a shield to protect the rights of victims and witnesses forced, through no fault of their own, to participate in the criminal justice system.\u201d People v. Benford, 295 Ill. App. 3d 695, 700, 692 N.E.2d 1285 (1998). Furthermore, \u201cits provisions may not be used as a sword by criminal defendants seeking appellate relief.\u201d Benford, 295 Ill. App. 3d at 700. Accordingly, we reject defendant\u2019s contention that he is entitled to a new sentencing hearing.\nDefendant also asserts that he should not be subject to the Illinois \u201ctruth-in-sentencing\u201d provisions contained in Public Act 89\u2014404 and codified in section 3\u20146\u20143(a)(2)(ii) of the Unified Code of Corrections (730 ILCS 5/3\u20146\u20143(a)(2) (ii) (West 1996)) because Public Act 89\u2014404 violates the single subject rule of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV \u00a7 8(d)). Our supreme court has recently struck down Public Act 89\u2014404 on this ground. People v. Reedy, 186 Ill. 2d 1 (1999). Accordingly, defendant is correct in his assertion that he is entitled to day-for-day good conduct credit in conformity with the terms of section 3\u20146\u20143(a)(2) (730 ILCS 5/3\u20146\u20143(a)(2) (West 1994)). Recalculation of the sentence credit to which defendant is entitled is a matter for the Illinois Department of Corrections.\nFinally, defendant contends, and the State agrees, that the mittimus incorrectly reflects that defendant was convicted of two counts of first degree murder. Defendant was charged with two counts of first degree murder; however, he was only convicted of one count of first degree murder. Pursuant to Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we correct the mittimus to reflect defendant\u2019s one conviction for first degree murder in violation of section 9\u20141(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9\u20141(a)(1) (West 1996)).\nFor the foregoing reasons, we affirm the defendant\u2019s conviction for first degree murder and correct the mittimus.\nAffirmed and mittimus corrected.\nO\u2019BRIEN, EJ., and O\u2019HARA FROSSARD, J., concur.",
        "type": "majority",
        "author": "JUSTICE TULLY"
      }
    ],
    "attorneys": [
      "Michael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.",
      "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle and Lisa Preston, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH DAVIS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201497\u20142729\nOpinion filed March 15, 1999.\nMichael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle and Lisa Preston, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0684-01",
  "first_page_order": 702,
  "last_page_order": 707
}