People v. Luckett

No. 3--97--0183
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) for the 10th Judicial Circuit
) Peoria County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 96--CF--685
)
ROBERT D. LUCKETT, ) Honorable
) Robert A. Barnes, Jr.
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________

PRESIDING JUSTICE McCUSKEY delivered the opinion of the court:
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Following a jury trial, the defendant, Robert D. Luckett,
was found guilty of second degree murder (720 ILCS 5/9--2(a)
(West 1996)). He was sentenced to 20 years in the Illinois
Department of Corrections (DOC). On appeal, the defendant
contends: (1) the jury's verdicts of guilty of second degree
murder and not guilty of aggravated battery with a firearm (720
ILCS 5/12--4.2(a) (West 1996)) are legally inconsistent; (2) the
trial court erred in sentencing the defendant under the Unified
Code of Corrections (Code) rather than the Juvenile Court Act of
1987 (Act); and (3) his counsel was ineffective for failing to
file a post-sentencing motion. After carefully reviewing the
record on appeal, we affirm.
At trial, the evidence showed that on August 7, 1996, the
defendant and several of his friends were loitering around a
convenience store when the victim pulled his truck into a nearby
alley. The defendant and his friends approached the truck and
began a conversation with the victim. One of the defendant's
friends looked toward the defendant who said to sell the victim
some rock cocaine, he's "OK." The victim then purchased $20 of
rock cocaine. At the end of the transaction, the defendant
pulled a gun and fired a shot into the truck. The bullet struck
the victim, killing him. According to the defendant, the victim
owed him money from a previous drug sale. When the defendant
reminded the victim of the debt, the victim bent over and ap-
peared to be reaching for something under the seat in the vehi-
cle. The defendant then jumped back from the window of the truck
and fired into the cab to scare the victim.
The defendant was charged with first degree murder (720 ILCS
5/9--1(a)(2) (West 1996)), armed violence (720 ILCS 5/33A (West
1996)) and aggravated battery with a firearm (720 ILCS 5/12--
4.2(a) (West 1996)). In addition to these offenses, the jury was
instructed on second degree murder (720 ILCS 5/9--2 (West 1996))
and involuntary manslaughter (720 ILCS 5/9--3 (West 1996)). The
jury found the defendant not guilty of armed violence and aggra-
vated battery with a firearm but guilty of second degree murder.
Following the trial, the State moved to sentence the defen-
dant as an adult rather than a juvenile. The State's motion was
granted over the defendant's objection.
At the sentencing hearing, the presentence report indicated
that the defendant was 15 years old. He had been expelled from
eighth grade for non-attendance. However, the defendant was
performing well in the freshman-level classes he was taking at
the juvenile detention center. The report showed that the
defendant's sole prior conviction was for a traffic offense.
In aggravation, the State presented the testimony of several
individuals. One witness testified that the defendant had stolen
his bicycle. Another witness testified that the defendant had
stolen her car. Other witnesses testified concerning the
defendant's involvement in another drug-related shooting death.
At the conclusion of the hearing, the trial judge sentenced the
defendant to 20 years in the DOC.
The defendant initially argues on appeal that the jury
rendered legally inconsistent verdicts when it found the
defendant guilty of second degree murder and not guilty of
aggravated battery with a firearm. The defendant claims that
these inconsistent verdicts cannot be reconciled under the law of
the State of Illinois.
Legally inconsistent verdicts occur when the charged
offenses arise out of the same set of facts and, by acquitting
the defendant of one offense while convicting him of the other,
the jury necessarily finds both the existence and nonexistence of
an identical element of each offense. People v. Austin, 264 Ill.
App. 3d 976, 979, 637 N.E.2d 585, 587 (1994). As a general rule,
verdicts that convict and acquit a defendant of crimes composed
of different elements, but arising out of the same set of facts,
are not legally inconsistent. People v. Klingenberg, 172 Ill. 2d 270, 274, 665 N.E.2d 1370, 1373 (1996).
A defendant commits the offense of second degree murder when
he commits the offense of first degree murder but acts under a
sudden or intense passion resulting from serious provocation or
an unreasonable belief that the circumstances justified his
conduct. 720 ILCS 5/9--2(a) (West 1996). A defendant commits
first degree murder when he: (1) performed the act which caused
the death of the victim without lawful justification; and (2)
knew that his act created a strong probability of death or great
bodily harm to the victim. 720 ILCS 5/9--1(a)(2) (West 1996).
A defendant commits aggravated battery with a firearm when he "in
committing a battery, knowingly or intentionally by means of the
discharging of a firearm *** causes any injury to another per-
son." 720 ILCS 5/12--4.2(a) (West 1996).
It is clear that the offenses of second degree murder and
aggravated battery with a firearm contain at least one differing
element. Aggravated battery with a firearm requires the
defendant to knowingly cause an injury to the victim. Second
degree murder does not require the defendant to know that he has
or will injure the victim; it requires only that he know that his
act creates a strong probability of death or great bodily harm.
In addition, second degree murder requires that the defendant's
act be the result of sudden and intense passion or an unreason-
able belief that the defendant's acts were justified.
Here, in the instant case, it appears that the jury believed
the defendant's story about shooting into the cab for the sole
purpose of scaring the victim. The jury apparently believed that
the defendant was not aware that his shot would injure or harm
the victim. As a consequence, the jury found the defendant not
guilty of aggravated battery with a firearm. Nevertheless, the
defendant did know that shooting a bullet into the truck created
a strong probability of death or great bodily harm even if the
defendant maintained his unreasonable belief that his conduct was
justified. Moreover, in this case, the defendant's act of
shooting into the cab caused the victim's death. As a result,
the jury properly found the defendant guilty of second degree
murder. From our review, we conclude that the jury verdicts of
not guilty of aggravated battery with a firearm and guilty of
second degree murder are not legally inconsistent under the
applicable law of this state.
Next, the defendant contends that the trial court erred in
sentencing him as an adult pursuant to the Code instead of as a
juvenile under the Act. The defendant notes that one of the
charges against him--first degree murder--was the basis for
trying him as an adult rather than as a juvenile. See 705 ILCS
405/5--4(6)(a) (West 1996). He contends, however, that because
he was acquitted of the offense for which he was tried as an
adult, it was error for the trial judge to sentence him as an
adult.
Section 5--4(6)(a) of the Act provides that a minor who was
at least 15 years old at the time of the offense and is charged
with first degree murder shall be prosecuted as an adult. 705
ILCS 405/5--4(6)(a) (West 1996). Moreover, even if the minor is
not convicted of first degree murder but is instead convicted of
a lesser offense, the conviction remains valid although he was
tried as an adult. 705 ILCS 405/5--4(6)(c)(ii) (West 1996).
However, in that situation, the minor must be sentenced as a
juvenile unless the State moves to sentence the minor as an adult
and the trial court finds that such sentencing is appropriate.
705 ILCS 405/5--4(6)(c)(ii) (West 1996). In making its determi-
nation on the State's motion to sentence a minor as an adult, the
court shall consider: (a) whether there is evidence that the
offense was committed in an aggressive and premeditated manner;
(b) the minor's age; (c) the minor's previous history; (d)
whether there are facilities particularly available to the
juvenile court or the juvenile division of the Department of
Corrections for the rehabilitation and treatment of the minor;
(e) whether the best interest of the minor and the security of
the public require the minor to be sentenced as an adult; and (f)
whether the minor possessed a deadly weapon while committing the
offense. 705 ILCS 405/5--4(6)(c)(ii) (West 1996).
The trial court is bound to consider the specific criteria
set forth in the Act. People v. Ollins, 231 Ill. App. 3d 243,
247, 606 N.E.2d 192, 196 (1992); see also People v. Clark, 119 Ill. 2d 1, 12, 518 N.E.2d 138, 143 (1987). However, no one
factor is determinative nor must each factor be given equal
weight. See People v. Martin, 285 Ill. App. 3d 623, 631, 674 N.E.2d 90, 95 (1996). Moreover, not all of the statutory
criteria must be resolved against the minor to justify treating
him as an adult. See People v. Sistrunk, 259 Ill. App. 3d 40,
48, 630 N.E.2d 1213, 1219 (1994). Where the record shows that
the trial court considered all the factors and its determination
is not an abuse of discretion, then the ruling will be affirmed
on appeal. See Martin, 285 Ill. App. 3d at 631, 674 N.E.2d at
95.
Here, the record shows that the State properly moved to
sentence the defendant as an adult. Thereafter, the trial court
reviewed the evidence relating to the statutory factors. Consid-
ering the first factor, the evidence showed that the defendant
approached the victim with a loaded gun during a drug transac-
tion. The defendant instigated an argument with the victim
regarding an alleged drug debt. When the victim made what the
defendant thought was a suspicious movement, the defendant fired
his weapon into the cab of the truck. From these facts, the
trial court could properly find the defendant committed the crime
in an aggressive and premeditated manner.
The trial court reviewed the second and third factors of the
Act. The evidence showed that, at the time of the shooting, the
defendant was 15 years old with no prior criminal record other
than a traffic offense. In making its ruling, the trial court
did not specifically refer to the fourth factor, which is the
availability of treatment or rehabilitation services in the
juvenile court or the juvenile division of the DOC. However, the
fourth factor was mentioned to the trial judge by both the
prosecutor and defense counsel. As far as the fifth factor, the
defendant's actions clearly indicate a need to protect the public
by sentencing the defendant as an adult. Finally, under the
sixth factor, the evidence showed that the defendant had used a
deadly weapon while committing the offense.
From our review of the record on appeal, we conclude that
the trial court properly considered the statutory factors
contained in the Act. We further conclude that the trial court
did not abuse its discretion when it determined the defendant
should be sentenced as an adult.
In conclusion, the defendant contends that his trial counsel
was ineffective for failing to file a post-sentencing motion.
Both parties agree that no post-sentencing motion was ever filed.
Because no post-sentencing motion was filed below, the defendant
cannot argue on appeal that his sentence was an abuse of discre-
tion. See People v. Reed, 177 Ill. 2d 389, 394, 686 N.E.2d 584,
586 (1997).
The law is clear that ineffective assistance of counsel is
proven when: (1) counsel's representation falls below an objec-
tive standard of reasonableness such that the trial results were
unreliable; and (2) the defendant is prejudiced by the unprofes-
sional conduct. People v. Albanese, 125 Ill. 2d 100, 106, 531 N.E.2d 17, 19 (1988). If the court on review can determine that
the defendant suffered no prejudice, then it need not consider
whether counsel's representation was deficient. Albanese, 125 Ill. 2d 100, 106, 531 N.E.2d 17, 19.
The statutory sentencing range for second degree murder is 4
to 20 years. 730 ILCS 5/5--8--1(a)(1.5) (West 1996). Sentencing
is a matter of judicial discretion; a sentence imposed by the
trial court will not be disturbed on review absent an abuse of
that discretion. People v. Streit, 142 Ill. 2d 13, 18-19, 566 N.E.2d 1351, 1353 (1991). A sentence which falls within the
statutory guidelines will not be overturned on appeal unless it
is manifestly disproportionate to the nature of the offense.
People v. Nussbaum, 251 Ill. App. 3d 779, 783, 623 N.E.2d 755,
758 (1993).
Here, in the instant case, the evidence showed that the
defendant was deeply involved in the business of illegal drug
trafficking. In fact, on the night of the victim's murder, the
defendant was apparently in charge of determining who could buy
drugs from the individuals who were conducting street sales.
In the course of the drug transactions on the night in question,
the defendant produced a loaded gun in an effort to scare the
victim. Instead of scaring him, the defendant shot and killed
the victim. Also, the State produced evidence at the sentencing
hearing linking the defendant to a second drug-related murder.
Moreover, the State produced further evidence that the defendant
had stolen from others and appeared nonchalant about his criminal
activities. In light of these facts, we cannot say that the
trial court's sentence was manifestly disproportionate to the
nature of the offense. Consequently, we find no abuse of
discretion. Additionally, we find that the defendant was not
prejudiced by his attorney's failure to file a post-sentencing
motion. From our review of the entire record, we conclude that
the defendant was not deprived of his constitutional right to the
effective assistance of counsel.
For the reasons stated, the judgment of the circuit court of
Peoria County is affirmed.
Affirmed.
SLATER and LYTTON, JJ., concurring.