{ "id": 132358, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFERY SMITH, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "2001-03-30", "docket_number": "No. 1\u201498\u20143246", "first_page": "523", "last_page": "538", "citations": [ { "type": "official", "cite": "321 Ill. App. 3d 523" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "587 N.E.2d 1221", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5245265 ], "year": 1992, "pin_cites": [ { "page": "335-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0331-01" ] }, { "cite": "566 N.E.2d 1351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "142 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236660 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "19" }, { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0013-01" ] }, { "cite": "676 N.E.2d 1368", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "286 Ill. App. 3d 903", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 182762 ], "year": 1996, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0086-01" ] }, { "cite": "475 N.E.2d 606", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 141", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3621239 ], "year": 1988, "pin_cites": [ { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0639-01" ] }, { "cite": "308 N.E.2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "56 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404559 ], "year": 1974, "pin_cites": [ { "page": "363-64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0361-01" ] }, { "cite": "636 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "159 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781339 ], "year": 1994, "pin_cites": [ { "page": "42-43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0001-01" ] }, { "cite": "687 N.E.2d 930", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "178 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385536 ], "year": 1997, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0141-01" ] }, { "cite": "554 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "136 Ill. 2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3254843 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "38" }, { "page": "38" }, { "page": "38" }, { "page": "34" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0027-01" ] }, { "cite": "670 N.E.2d 638", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "173 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147596 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "85" }, { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0048-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 1250, "char_count": 37943, "ocr_confidence": 0.773, "pagerank": { "raw": 1.0608380334045151e-07, "percentile": 0.5570707018053949 }, "sha256": "e82093b1a0397bf0fdc86bf151639c4042c6c31c202711cdbd8b51d31d3567ec", "simhash": "1:a378b66e7624c686", "word_count": 6330 }, "last_updated": "2023-07-14T16:50:01.734981+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. JEFFERY SMITH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McBRIDE\ndelivered the opinion of the court:\nFollowing a jury trial on remand from this court, defendant-appellant, Jeffrey Smith, was found guilty of attempted murder and was sentenced to 30 years\u2019 imprisonment on June 25, 1998. Defendant appeals the verdict contending that the trial court denied him his due process right to be present when the court responded to a note the jury sent out during deliberations. Further, defendant claims that the trial court\u2019s response to the note was legally insufficient. He also maintains that the 30-year sentence imposed on him for attempted murder was excessive. The State claims all issues have been waived because defendant failed to object at the time of the alleged error and failed to raise the issues in a posttrial motion.\nDetailed facts related to defendant\u2019s criminal conduct were set out by this court in our order of May 31, 1996, People v. Smith, No. 1\u201494\u20141756 (unpublished under Supreme Court Rule 23). We state only those facts relevant to the issues raised by this appeal. Defendant\u2019s attempted murder conviction arises out of a gang-related drive-by shooting that resulted in the death of a young man and severe injury to a young woman on October 22, 1991. The shooting occurred in the area of 79th Street and Eggleston in Chicago. The evidence at trial established that defendant was the driver of the vehicle used in the drive-by shooting, which was a measure of retaliation against rival gang members who had thrown bricks and bottles at defendant\u2019s car earlier that day. The record r\u00e9veals that up to 20 gunshots from semi-automatic weapons were fired by passengers inside defendant\u2019s automobile. While no gang members were injured as a result of the shooting, Robert Foreman, Jr., age 21, suffered a fatal gunshot wound to the chest and Meeka Johnson, age 17, suffered a severe abdominal injury.\nAt the close of evidence, the jury was given instructions for the crimes of first degree murder with respect to Robert Foreman, Jr., and attempted first degree murder with respect to Meeka Johnson. During jury deliberation on April 13, 1998, the jury sent a note to the judge asking \u201ccan the [defendant] be charged or found with a lesser charge (2nd degree/involuntaiy) [?] \u201d Both defense counsel and defendant were absent from the courtroom at the time the note was sent out, while the assistant State\u2019s Attorneys were physically present in the courtroom. Upon receipt of the note, the trial judge contacted defense counsel via telephone and asked him how he wished to respond to the note. Counsel for both parties and the trial judge agreed on a response and ultimately sent it to the jury. The response stated: \u201cThe law applicable to the case is contained in the instructions you have been given. You are to follow those instructions.\u201d\nBefore actually giving the above response, the trial judge indicated that defendant should be made aware of the note sent from the jury and asked defense counsel how defendant should be notified. Defense counsel said that he would like to talk to defendant. Pursuant to that request, the judge arranged for a private phone line so that defendant could discuss the contents of the note with counsel. The judge further made himself available to defense counsel in the event that he wished to make changes to the response based upon counsel\u2019s conversation with defendant. Defense counsel stated that he had no objection to the language used in the response. The following day, the jury found the defendant guilty of attempted first degree murder and not guilty of the murder charge.\nAt a subsequent hearing the trial judge sentenced defendant to 30 years\u2019 imprisonment. Before imposing sentence, the judge noted that defendant\u2019s conduct caused a severe amount of injury and a great deal of suffering. The judge also said that a sentence of 30 years was a necessary deterrent to others. Further, the judge observed that defendant set in motion the drive-by shooting which caused one death and injury to another person. The judge noted in mitigation that defendant had no prior criminal history, had a good school record, and had adjusted well to prison. Thereafter, defendant was sentenced to 30 years\u2019 imprisonment.\nWe now turn to the question of whether defendant has waived review of the trial judge\u2019s response to the jury\u2019s note on the basis that defense counsel failed to object to the alleged error or to properly raise such error in a posttrial motion. The State claims that because defense counsel neither made an objection at the time of the alleged error nor stated the reason as a basis for error in a posttrial motion, the question has been waived on review. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988); People v. Williams, 173 Ill. 2d 48, 85, 670 N.E.2d 638 (1996); People v. Reid, 136 Ill. 2d 27, 38, 554 N.E.2d 174 (1990). We note that defense counsel did not object to the response given to the jury at the time of the alleged error. Further, defendant did not file any posttrial motion contending that defendant\u2019s absence from the courtroom during the drafting of the response note constituted grounds for a new trial. In Reid, our supreme court stated:\n\u201cIf a party fails to object at trial or to raise the issue in its post-trial motion, the party effectively waives the issue for appellate review. [Citation.] Where a defendant acquiesces in the circuit court\u2019s answer to the jury\u2019s question, the defendant cannot later complain that the circuit court abused its discretion. [Citations.] These waiver rules serve at least two purposes. First, timely objections allow the circuit court to promptly correct any error. [Citation.] Second, a party who fails to object cannot obtain the advantage of receiving a reversal by failing to act. [Citation.]\u201d Reid, 136 Ill. 2d at 38.\nIn this case, when the note in question was sent from the jury, the trial judge contacted defendant\u2019s counsel via telephone. The assistant State\u2019s Attorneys remained with the judge and the following conversation, in relevant part, took place while defendant and his counsel were absent from the courtroom:\n\u201cTHE COURT: Jeffery Smith. Are you there Mr. Heaston [defense attorney]?\nMR. HEASTON: Yes.\nTHE COURT: Can you hear us all right?\nMR. HEASTON: Yes.\nTHE COURT: All right. The note reads: Can the [defendant] be charged or found with a lesser charge (2nd degree/involuntary) [?]\nMR. HEASTON: I got that message.\nTHE COURT: Okay. How do you want me to answer this?\nMR. HEASTON: Well Judge, I think that\u2019s a question of law. That certainly was a given. I didn\u2019t proffer that because I didn\u2019t think that second degree would pertain to this case.\nTHE COURT: I agree with you. So how do you want me to answer this?\nMR. HEASTON: I don\u2019t know. What do you suggest?\nTHE COURT: Well, let\u2019s see. State, how do you want me to answer this?\nMR. MURPHY [Assistant State\u2019s Attorney]: The answer is, no, isn\u2019t it?\n* * *\nMR. HEASTON: I don\u2019t have a pat answer or any thing, judge. I just feel that maybe you should say something to the effect that they have to follow the law as instructed.\n* * *\nTHE COURT: I can\u2014I suppose I can go out in the courtroom and read [defendant] the note and then let you [Mr. Heaston] talk to him on the phone, I suppose.\n^ ^\nTHE COURT: *** How about this;- does either side have any objection to this? The law that is applicable to this case is contained in the instructions you have been given. You are to follow those instructions.\nMR. HEASTON: I would agree with that.\n* * *\nTHE COURT: *** All right. What do you want me to do with your client?\n* * *\nMR. HEASTON: I\u2019d like to talk *** to Jeffrey, if I could.\nTHE COURT: Okay. We can arrange that. Can you hook him [defendant] up out there in the back?\nTHE SHERIFF: I\u2019ll get him [defendant] a private phone just for you, Mr. Heaston.\n* * *\nTHE COURT: *** Take him [defendant] out of the lockup and let him call in the back on that line with you [Mr. Heaston]. And after you talk to him, then I\u2019ll\u2014I\u2019ll bring him out, and I\u2019ll ask him if you discussed this with Mr. Heaston ***.\nTHE COURT: If you want, after talking to him [defendant], if you want to change anything [to the response], *** just tell Mary [the sheriff] that you want to talk to me again, and we\u2019ll change something okay?\nMR. HEASTON: Okay, Judge.\nTHE COURT: Okay. Very good. Otherwise, that\u2019s the way it [the response] will go back. ***\nMR. HEASTON: Okay.\nTHE COURT: No objection?\nMR. HEASTON: No objection.\u201d\nConsidering this dialogue, we find the above language in Reid particularly persuasive because the record reveals that defense counsel stated \u201cno objection\u201d to the language contained in the response to the jury. Further, the trial judge gave defense counsel an opportunity to make any corrections to the response after he conversed with defendont. Defense counsel never stated that he wished to change the response.\nMost significantly, defense counsel never raised an objection that an error had occurred with respect to the response based on defendant\u2019s absence from the courtroom. The record reveals that three subsequent notes were sent from the jury in addition to the note at issue. The trial judge ensured defendant\u2019s presence in the courtroom while the contents of and responses to those notes were discussed. At no time did defense counsel ever object to the fact that defendant had not been present in the courtroom while a response to the first note had been prepared. Because defendant failed to raise an objection and did not file a posttrial motion, he has waived his right to protest the trial court\u2019s response to the jury with regard to the first note. Reid, 136 Ill. 2d at 38.\nNevertheless, defendant claims that his absence from the courtroom at the time the note was discussed was a denial of a substantial right which falls under the plain error rule. He relies upon Illinois Supreme Court Rule 615(a), which states in pertinent part:\n\u201cAny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain 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).\nOur supreme court has held:\n\u201cAn exception to the waiver rule permits review of plain error. [Citation.] However, this exception does not operate as a general savings clause: it may be invoked only when the evidence is closely balanced or the alleged error is so serious that it deprived the defendant of a fair trial. [Citation.]\u201d People v. Cloutier, 178 Ill. 2d 141, 164, 687 N.E.2d 930 (1997).\nIn our view, the evidence in this case was not closely balanced. Several eyewitnesses to the shooting identified defendant as the driver. The most significant testimony favorable to defendant came from Maurice Brumfield, a friend of the defendant since grammar school, who testified that defendant attempted to refrain Robert Short from shooting his weapon from the vehicle. Weighed against the eyewitness testimony and the defendant\u2019s motive for retaliation, however, we conclude that the evidence was not closely balanced.\nThe waiver exception is also limited to cases in which the plain error affected substantial rights. People v. Kitchen, 159 Ill. 2d 1, 42-43, 636 N.E.2d 433 (1994). Based on controlling authority, we conclude that defendant\u2019s absence from the courtroom at the time the first note was sent out by the jury did not deprive defendant of a fair trial and did not affect his substantial rights. Where the defendant or his attorney had knowledge of the court\u2019s communication with the jury at the approximate time of the jury\u2019s inquiry, plain error has not been found and the waiver doctrine has been applied. People v. Pierce, 56 Ill. 2d 361, 363-64, 308 N.E.2d 577 (1974); People v. Lowery, 177 Ill. App. 3d 639, 643, 532 N.E.2d 414 (1988); People v. Patterson, 163 Ill. App. 3d 370, 372-73, 516 N.E.2d 642 (1987). Here, the error defendant now complains of is that he was not present in the courtroom when the jury sent out the first note. The record reveals, however, that defendant\u2019s counsel was immediately made aware of the contents of the note and was allowed to participate in drafting a response. Defense counsel was also permitted to contact the defendant and inform him of the note prior to submission of the response. Because defendant and his counsel were aware of the jury\u2019s note and able to participate in the response, we determine that defendant\u2019s absence from the courtroom did not affect a substantial right. We therefore conclude that defendant has waived his right to raise the error of defendant\u2019s absence as the basis for a new trial.\nWaiver aside, we find the trial court did not err by responding to the note when it stated, \u201c[t]he law applicable to this case is obtained in the instructions you have been given. You are to follow those instructions.\u201d Defendant argues that his constitutional right to be present in person was denied when the trial court responded to the jury\u2019s note. U.S. canst., amends. VI, XIV; Ill. Const. 1970, art. I, \u00a7\u00a7 2, 8. The primary cases relied upon by defendant are People v. Childs, 159 Ill. 2d 217, 636 N.E.2d 534 (1994), and People v. McDonald, 168 Ill. 2d 420, 660 N.E.2d 832 (1995). In Childs, the jury sent out a note to the trial court\u2019s bailiff during jury deliberations. The trial judge was contacted at a restaurant where he was dining with the assistant State\u2019s Attorneys on the case. The note was read to the judge which stated: \u201cCan the defendant be guilty of armed robbery and voluntary manslaughter or involuntary manslaughter or must murder be the only option with armed robbery?\u201d Childs, 159 Ill. 2d at 225. The judge instructed the deputy to give the following response: \u201cYou have received your instructions as to the law, read them and continue to deliberate.\u201d Childs, 159 Ill. 2d at 225. The judge then informed the prosecutors of the question, but made no effort to contact defense counsel. Childs, 159 Ill. 2d at 225.\nIn Childs, the supreme court concluded that \u201c[a] criminal defendant has a constitutional right to a public trial, and to appear and participate in person and by counsel at all proceedings which involve his substantial rights [citation].\u201d (Emphasis added.) Childs, 159 Ill. 2d at 227; McDonald, 168 Ill. 2d at 459. \u201cThat right to be present is violated only when the defendant is excluded at a time when a hearing is being conducted which involves his substantial rights.\u201d People v. Collins, 184 Ill. App. 3d 321, 334, 539 N.E.2d 736 (1989). \u201cA communication between the judge and the jury after the jury has retired to deliberate, except one held in open court and in the defendant\u2019s presence, deprives defendant of those fundamental rights. [Citation.]\u201d Childs, 159 Ill. 2d at 227. Relying on Childs, defendant claims that once a defendant has shown that his right to be present was violated, the burden is on the State to show the error was harmless. Childs, 159 Ill. 2d at 228. Defendant further contends that the presence of his counsel was insufficient to satisfy the absolute requirement that he be present at every critical stage of the proceeding.\nThe State distinguishes Childs on the basis that no ex parte communication occurred in the instant case. According to the State, the trial judge\u2019s effort to contact defense counsel via telephone eliminated any contention that an ex parte communication occurred in this case. We agree. As the State correctly notes, our supreme court has condoned the trial court\u2019s use of a telephone to contact the parties for purposes of determining a response to a jury question. Reid, 136 Ill. 2d at 34. Defendant claims that Reid is distinguishable because the defendant\u2019s presence in the courtroom was not in issue. While we agree with defendant on that point, the significance of Reid is that the supreme court allowed the use of a telephone as an appropriate means of contacting the parties for the purpose of determining a response to a jury\u2019s question.\nWe do not agree with defendant that his absence from the courtroom amounted to plain error. The record reveals that the trial judge contacted defense counsel via telephone upon receipt of the jury\u2019s note. Defense counsel was allowed an adequate opportunity to assist in responding to the note. Further, defense counsel was allowed to discuss the contents of the note with defendant and was given the opportunity to make changes before the trial judge submitted the response to the jury. Defense counsel was also asked if he had an objection to the language in the response and he said no. Under these facts, we fail to see how defendant was prejudiced or how the trial court committed plain error when defense counsel was immediately informed of the contents of the jury note and was permitted to participate in formulating a response. As noted above, the trial judge in Childs unilaterally responded to the jury note. He then informed the assistant State\u2019s Attorneys of his- response and failed to contact counsel representing the defendant. Childs, 159 Ill. 2d at 225. The ex parte communication that occurred in Childs did not occur in this case and defendant was not prejudiced by his absence from the courtroom where his counsel, via telephone, had been informed of the jury note and had assisted in forming a response.\nWe next turn to the question of whether the trial court erred by giving the particular response it gave to the jury\u2019s question. On this point, defendant relies on language set forth in Childs which states:\n\u201cA trial court may exercise its discretion and properly decline to answer a jury\u2019s inquiries where the instructions are readily understandable and sufficiently explain the relevant law, where further instructions would serve no useful purpose or would potentially mislead the jury, when the jury\u2019s inquiry involves a question of fact, or if the giving of an answer would cause the court to express an opinion which would likely direct a verdict one way or another. [Citation.] However, jurors are entitled to have their inquiries answered. Thus, the general rule is that the trial court has a duty to provide instruction where it has posed an explicit question or requested clarification on a point of law arising from the facts about which there is doubt or confusion. [Citation.] *** If the question asked by the jury is unclear, it is the court\u2019s duty to seek clarification of it. [Citations.] The failure to answer or the giving of a response which provides no answer to the particular question of law posed has been held to be prejudicial error.\u201d Childs, 159 Ill. 2d at 228-29.\nDefendant argues that the trial court\u2019s response amounted to plain error because it failed to address the jury\u2019s confusion. Specifically, defendant contends that the jury\u2019s question concerning the applicability of a lesser sentence indicated that it may have been struggling with defendant\u2019s culpability for the conduct of Robert Short. It is undisputed that Short was the shooter while defendant was the driver of the vehicle used in the shooting. Defendant argues that the jury may have questioned his culpability based on testimony offered that he returned to the territory of rival gang members to see a man named \u201cPeanut\u201d who would order rival gang members to stop throwing things at his car. Also, testimony in the record indicated that defendant attempted to pull Short back into the vehicle once he began shooting. Further, defendant notes that the jury\u2019s confusion is illustrated by a logically inconsistent verdict finding defendant not guilty of murder, yet guilty of attempted murder. Based on the principles set forth in Childs, defendant claims that the tried court committed plain error and that his conviction for attempted murder should be reversed.\nDespite the assertions made by defendant, we conclude that the trial court properly exercised its discretion in responding to the jury as it did. The question posed by the jury was whether the defendant could be convicted of a different charge. No instructions were given to the jury on second degree murder or involuntary manslaughter, and the defense agreed that those instructions did not apply to the facts of the case. Instructions on the charges of first degree murder and attempted first degree murder were provided to the jury. When the jury submitted the note, defense counsel himself admitted that, \u201cI didn\u2019t proffer instructions on second degree murder or involuntary manslaughter because I didn\u2019t think that second degree would relate to this case.\u201d \u201cIt is well settled that both an accused and the State are entitled to have the jury instructed as to the law applicable to their respective theories of the case, provided some evidence supports the particular theory.\u201d People v. Brown, 243 Ill. App. 3d 170, 173, 612 N.E.2d 14 (1993). If the trial judge had answered the jury\u2019s question any other way, new theories of second degree murder and involuntary manslaughter would have been introduced. The State points out that no evidence was heard on second degree murder or involuntary manslaughter and that the trial judge\u2019s answer concerning a new charge could have potentially misled the jury. Moreover, we find that a different response would have served no useful purpose, could have misled the jury, and could have caused the court to express an opinion which would have likely directed a verdict one way or another. Childs, 159 Ill. 2d at 228-29. Thus, we agree that the trial judge appropriately exercised his discretion in responding to the jury\u2019s question.\nAlthough the jury was requesting an instruction on how to find defendant guilty of a different charge, we do not find this necessarily indicates jury confusion. This is unlike the question posed by the jury in Childs which clearly indicated jury confusion, \u201cwhether defendant could be found guilty of armed robbery and either voluntary or involuntary manslaughter, or if a finding of guilt of armed robbery mandated a \u2018guilty of murder\u2019 verdict.\u201d Childs, 159 Ill. 2d at 229. In this case, the jury was properly given instructions on the crimes of first degree murder and attempted first degree murder. In its response to the note, the trial court properly advised the jury that the law it had been provided was applicable to the case and that it should continue to deliberate. Although an explicit question was asked in the jury\u2019s note, the trial judge, with the consensus of counsel for defendant and the State, responded that proper instructions had been provided and that the jury should continue deliberations. On these facts, we do not find a plain error made by the trial court because of the response given.\nWe now address whether defendant waived his right to challenge the trial court\u2019s sentence of 30 years\u2019 imprisonment based on his conviction of attempted first degree murder. We apply an abuse of discretion standard of review when evaluating a sentencing order. People v. Maldonado, 240 Ill. App. 3d 470, 485, 608 N.E.2d 499 (1992).\nUnder the Unified Code of Corrections, the applicable sentencing range for first degree attempted murder is between 6 and 30 years in the penitentiary. 720 ILCS 5/8\u20144(c)(1) (West 1996); 730 ILCS 5/5\u2014 8\u20141(a)(3) (West 1996). The State contends that defendant has waived his right to challenge the sentence by failing to raise the issue by objection and by posttrial motion. \u201cThe failure to make a timely objection at trial and to renew it in a post-trial motion operates as a waiver of a right to raise the issue as a ground for reversal on review. [Citation.]\u201d People v. Herrett, 137 Ill. 2d 195, 209, 561 N.E.2d 1 (1990); Enoch, 122 Ill. 2d at 186; Williams, 173 Ill. 2d at 85; Reid, 136 Ill. 2d at 38; People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584 (1997); People v. Center, 198 Ill. App. 3d 1025, 1029, 556 N.E.2d 724 (1990). The record reveals that no objection to the 30-year sentence was made by defense counsel. Further, defendant concedes that he did not file a posttrial motion to reduce the length of the sentence. He contends the failure to file such motion was attributable to the ineffectiveness of his trial counsel. Because of this allegedly deficient representation, defendant claims that he was prejudiced and that the waiver doctrine should not apply to the sentence in this case. In addition, defendant claims that the excessive sentence so adversely effected his substantial rights that the plain error rule applies.\nWe are not persuaded by defendant\u2019s claim that, based on the ineffectiveness of his trial counsel, the waiver doctrine should apply to his sentence of 30 years\u2019 imprisonment. Defendant claims that he was sentenced on June 25, 1998, five years after section 5\u20148\u20141(c) of the Unified Code of Corrections was amended to require a motion to reduce the sentence 30 days after it has been imposed. 730 ILCS 5/5\u2014 8\u20141(c) (West 1996). Because this requirement was in place at the time of sentencing, defendant suggests that his counsel was ineffective for failing to file a motion to preserve the sentencing issue. Defendant relies on People v. Eddmonds, 101 Ill. 2d 44, 65, 461 N.E.2d 347 (1984), where our supreme court elected to consider the impropriety of testimony, to which defendant failed to object and thereby waived, based on the ineffective assistance of counsel. The court recognized that \u201c[i]t should be noted that defendant complains now of incompetency only during the sentencing hearing, and no complaint is raised of ineffective assistance of counsel during the trial.\u201d Eddmonds, 101 Ill. 2d at 69. The court further noted:\n\u201cA defendant is entitled to competent, not perfect, representation. [Citation.] The inadequacy of a defendant\u2019s trial counsel entitles him to a new trial if his appointed counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence resulted in substantial prejudice to the defendant without which the result of his trial would have been different. [Citation.] Competency is determined from the totality of counsel\u2019s conduct at trial. [Citation.]\u201d Eddmonds, 101 Ill. 2d at 69.\nOutside of the allegations submitted in defendant\u2019s brief, the record reveals no evidence that the performance of his duties by defendant\u2019s trial counsel was questioned in this case. Further, there is no evidence suggesting that defendant was substantially prejudiced by the incompetence of his trial counsel where the outcome of the trial would have been different. Therefore, the totality of defense counsel\u2019s conduct at trial suggests that the defendant was not denied effective assistance of counsel. It does not appear that the issue was even raised in the trial court.\nIn addition, the State correctly recognizes:\n\u201cUnder Strickland v. Washington, (1984) 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, defense counsel is ineffective only if: (1) counsel\u2019s performance fell below an objective standard of reasonableness; and (2) counsel\u2019s error prejudiced the defendant. A court need not decide the first prong of this test, whether counsel\u2019s performance was deficient, before analyzing the prejudice component.\u201d People v. Coleman, 158 Ill. 2d 319, 349, 633 N.E.2d 654 (1994).\nIn our view, defendant, in this case, was not prejudiced by the failure of counsel to raise the issue of sentencing in a posttrial motion. He was sentenced within the sentencing range set forth in the Unified Code of Corrections, which is not less than 6 years and not more than 30 years. 730 ILCS 5/5\u20148\u20141(a)(3) (West 1996). Aside from defendant\u2019s claim that counsel was ineffective due to his failure to file a motion to reduce the sentence, the record is barren of any evidence indicating his counsel\u2019s incompetency.\nRegardless, Supreme Court Rule 615(a) permits a defendant to preserve the question of whether his sentence was excessive in the event that the plain error rule is applicable. 134 Ill. 2d R. 615(a). Thus, defendant in this case must demonstrate that the excessive sentence amounted to a plain error in order to circumvent the waiver doctrine.\n\u201cThe plain error rule permits a reviewing court to consider a trial error not properly preserved for review in two circumstances. First, where the evidence in a criminal case is closely balanced, a reviewing court may consider a claimed error not properly preserved so as to preclude argument of the possibility that an innocent man may have been wrongly convicted. [Citation.] A court will examine the record only to see if the evidence is \u2018closely balanced.\u2019 If it is not, there is no need to consider an error which was not properly preserved for review. [Citation.]\nThe plain error rule may also be invoked where the error is so fundamental and of such magnitude that the accused was denied a fair trial. The rule is invoked where it is necessary to preserve the integrity of the judicial process and provide a fair trial.\u201d Herrett, 137 Ill. 2d at 209-10.\nWe find neither of the two circumstances set forth above exists in this case. First, as pointed out above, the evidence in this case was not closely balanced. The testimony of Davon \u201cButter\u201d Thomas, Leon Grant, and Johari Grant, all eyewitnesses to the shooting, identified defendant as the driver of the vehicle. Further, testimony in the record reveals that defendant instigated the drive-by-shooting which led to the death of Foreman and to Johnson\u2019s injury. Second, defendant received a fair trial and his counsel\u2019s failure to file a motion to reduce the sentence within 30 days does not rise to the level of a plain error. As a result, we conclude that defendant has waived his right to challenge the trial court\u2019s sentence of 30 years\u2019 imprisonment.\nWaiver aside, defendant must demonstrate that the trial court abused its discretion in imposing a sentence. As stated by our supreme court, \u201c[o]ur decisions have firmly established that the imposition of a sentence is a matter of judicial discretion and that, absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. [Citations.]\u201d People v. Perruquet, 68 Ill. 2d 149, 153, 368 N.E.2d 882 (1977); Center, 198 Ill. App. 3d at 1032; Maldonado, 240 Ill. App. 3d at 485; People v. Steffens, 131 Ill. App. 3d 141, 151, 475 N.E.2d 606 (1985); People v. Cooper, 283 Ill. App. 3d 86, 95, 669 N.E.2d 637 (1996). Moreover, when the sentence chosen by the trial court falls within the statutory range permissible for the pertinent criminal offense for which the defendant has been convicted, the sentence will not be disturbed absent an abuse of discretion. People v. Jones, 168 Ill. 2d 367, 373-74, 659 N.E.2d 1306 (1995).\nDefendant contends that the trial court abused its discretion in sentencing him to 30 years\u2019 imprisonment for several reasons. First, defendant claims that the trial court improperly considered Smith\u2019s involvement in the murder of Robert Foreman, Jr., despite the fact that the jury acquitted him of that charge. Second, he notes his limited role in the crime as he was convicted on an accountability theory and he alleges that he had no knowledge that the passengers in his vehicle were going to shoot. Third, defendant acknowledges his own remorse for the crime and the testimony of Maurice Brumfield which indicated that defendant attempted to refrain Robert Short from discharging his weapon as the shooting occurred. Fourth, defendant claims that the trial court failed to properly consider his young age of 19 years at the time the offense was committed. He also asserts that he was employed at the time of the shooting and that he had completed IV2 years of community college. Finally, he identifies his strong rehabilitative potential and the fact that he had no criminal history at the time of the shooting.\nAs authority for the proposition that the above mitigating factors warrant a reduction of his sentence, defendant relies on several cases where the trial court was found to have abused its discretion by imposing an excessive sentence. Steffens, 131 Ill. App. 3d at 153 (murder sentence reduced based on defendant\u2019s young age, lack of criminal record, desire to stay in school, and rehabilitative potential); People v. Gibbs, 49 Ill. App. 3d 644, 649, 364 N.E.2d 491 (1977) (murder sentence reduced based on defendant\u2019s young age and lack of criminal record); People v. Bigham, 226 Ill. App. 3d 1041, 1049, 590 N.E.2d 115 (1992) (murder sentence reduced based on defendant\u2019s rehabilitative potential, completion of probation, lack of violent criminal record, and demonstrated control over substance abuse); Brown, 243 Ill. App. 3d at 176 (murder sentence reduced based on young age of defendant, lack of criminal history, and rehabilitative potential); Maldonado, 240 Ill. App. 3d at 484 (murder sentence reduced based on defendant\u2019s young age and no prior felony convictions); People v. Hopkins, 247 Ill. App. 3d 951, 965, 618 N.E.2d 279 (1992) (murder sentence reduced based on defendant\u2019s young age, lack of criminal background, and potential for rehabilitation).\nWhile we have examined the authority cited by defendant above, the supreme court has rejected the use of comparative sentencing from unrelated cases as a basis for claiming that a particular sentence is excessive or that the trial judge abused his discretion. People v. Fern, 189 Ill. 2d 48, 62, 723 N.E.2d 207 (1999). \u201cIf a sentence is appropriate given the particular facts of that case, it may not be attacked on the ground that a lesser sentence was imposed in a similar, but unrelated, case.\u201d Fern, 189 Ill. 2d at 62. Thus, we are not persuaded by the comparison of sentences imposed in the unrelated authority defendant relies on above as a basis for reducing the sentence imposed by the trial judge in this case.\nNonetheless, defendant further claims that the trial court improperly imposed the maximum sentence because of Foreman\u2019s death. Defendant argues that this is evident from the fact that the trial court allowed to be read into the record the victim impact statements of Foreman\u2019s parents, which defendant alleges were irrelevant to the proceedings. Defendant further points out that he was acquitted of the first degree murder charge for the murder of Foreman. As the State correctly notes, however, a trial judge, in aggravation, can consider a defendant\u2019s accountability in the murder. People v. Robinson, 286 Ill. App. 3d 903, 910, 676 N.E.2d 1368 (1997). Thus, we conclude that it was not improper for the trial court to consider Foreman\u2019s death in aggravation. Further, the trial judge stated that the Foremans\u2019 victim statements added very little to the sentencing determination.\nAlso, the trial court specifically noted that the defendant\u2019s conduct caused a severe amount of injury and a great deal of suffering and that, in aggravation, the sentence was necessary to deter others from committing the same offense. The trial judge further told the defendant that defendant \u201cstarted it all in motion, the evidence was that you knew that those people had guns in the car, you knew what they were when you put them in the car, that\u2019s why you went and got them.\u201d Thus, the trial court placed certain emphasis on the fact that defendant was the catalyst for the chain of events that led to the shooting.\nThe record indicates that the trial court also considered several mitigating factors. First, the court heard the mitigation testimony of defendant\u2019s cousin and aunt, who testified that defendant was a nonviolent person and that he had a positive, productive, and constructive future. The trial judge also considered the facts that defendant had no prior criminal record, that he was working, that he had a good school record, and that he had adjusted well to fife inside prison.\nOur supreme court has stated:\n\u201cA trial judge is in a far better position than an appellate court to fashion an appropriate sentence, because such judge can make a reasoned judgment based on firsthand consideration of such factors as \u2018the defendant\u2019s credibility, demeanor, general moral character, mentality, social environment, habits, and age.\u2019 [Citations.]\u201d People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351 (1991).\nIn addition, this court has held that \u201cthe trial court is not required to articulate its consideration of mitigating factors [citation] or to make an express finding that the defendant lacked rehabilitative potential [citation]. Nor is the trial court required to accord greater weight to defendant\u2019s potential for rehabilitation than the seriousness of the crime. [Citations.]\u201d People v. Boclair, 225 Ill. App. 3d 331, 335-36, 587 N.E.2d 1221 (1992).\nIn conformity with the above principles, we are not prepared to disturb the trial court\u2019s imposition of the maximum sentence on defendant under the facts in this case. The record reveals that the trial court, among other things, considered the defendant\u2019s age, lack of criminal history, and rehabilitative potential. These mitigating factors were balanced against the aggravating factors of the seriousness of the offense and the need to deter others from committing such a crime. \u201cA reviewing court may not substitute its judgment for that of a sentencing court merely because it would have weighed the factors differently.\u201d Streit, 142 Ill. 2d at 19. We therefore conclude that the trial court did not abuse its discretion in sentencing defendant to 30 years\u2019 imprisonment for bis conviction of attempted first degree murder.\nThe decision of the trial court is affirmed.\nAffirmed.\nGORDON and COUSINS, JJ., concur.", "type": "majority", "author": "JUSTICE McBRIDE" } ], "attorneys": [ "Michael J. Pelletier and Michael C. Bennett, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Mary L. Boland, and Suzanne T. Collins, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFERY SMITH, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201498\u20143246\nOpinion filed March 30, 2001.\nMichael J. Pelletier and Michael C. Bennett, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Mary L. Boland, and Suzanne T. Collins, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0523-01", "first_page_order": 541, "last_page_order": 556 }