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People v. Fender
Citation: Not availableDocket: 5-00-0227 Rel
Court: Appellate Court of Illinois; September 27, 2001; Illinois; State Appellate Court
Justin Fender appeals his conviction for armed robbery, for which he received a 16-year prison sentence on November 5, 1999. The trial court determined that the victim endured great bodily harm, mandating that Fender serve 85% of his sentence under section 3-6-3(a)(2)(iii) of the Unified Code of Corrections. Fender's appeal raises two main arguments: first, that his right to a fair trial was compromised due to the admission of evidence regarding his attempted solicitation to kill a key witness; second, that the 85% sentencing provision is unconstitutional based on the precedent set by the U.S. Supreme Court in Apprendi v. New Jersey. The trial evidence included testimony from Sherry Garner, a customer at Zink's convenience store, who observed a suspicious individual outside the store shortly before the robbery. Elizabeth Pearce, the store clerk, detailed the armed robbery that occurred around 9:45 p.m. on March 1, 1999, when a man in dark clothing pointed a revolver at her. Pearce described the robber's threats and actions, including demanding she open the cash register and subsequently hitting her on the head with the gun, resulting in injuries. The robber fled after taking money from the register. Bridgett Lane testified regarding her relationship with the defendant, who was her boyfriend since February 1999. On March 1, 1999, they were at the Motel 45 in Louisville, Illinois, with Lane's 16-month-old daughter. Lane described their activities, including watching television and playing with the child, while noting that the defendant was pacing and mentioned a plan to rob Zink's, which she initially dismissed. After showering and changing into black pants, a black hooded sweatshirt, and new black tennis shoes, the defendant cleaned and loaded a black handgun, which Lane described as having a brown handle. He also donned bandanas, sunglasses, and hospital gloves. At approximately 9:45 p.m., the defendant left the motel with the gun in his sweatshirt pocket. He returned shortly thereafter, claiming there were too many people at Zink's to proceed with the robbery. After a brief interval, he left again, returning 10 to 15 minutes later, visibly nervous and out of breath, and threw a brown bank bag containing about $500 in cash on the floor. Following the robbery, he disposed of his disguise in a motel dumpster, changed into boots and a black T-shirt, and instructed Lane to leave the motel with him and the stolen money. While driving away, they noticed a car Lane believed was a police vehicle, prompting the defendant to discard the tennis shoes out of the window. They then went to the defendant's parents' house, where he went inside, leaving Lane in the car. After 15 minutes, they drove to a gas station to refuel before returning to the motel, where they encountered police cars. The defendant expressed concern that the police had identified him. He eventually parked at the motel and spoke with an officer outside his room. Lane waited nearly two weeks to report information about a robbery due to threats from the defendant, who warned her that he would kill her if they broke up because she knew about the robbery. She testified that these threats escalated from targeting her alone to threatening both her and her daughter after the robbery occurred. Ultimately, Lane decided to come forward, citing a moral obligation regarding the victim of the robbery. During cross-examination, Lane maintained that the defendant's threats influenced her delay in reporting and her decisions during the robbery. Witnesses observed a man matching the defendant's description near the crime scene shortly before the robbery. Kelly Greenman, working at a nearby gas station, interacted with the defendant after the robbery and noted that he appeared calm and mentioned plans to go out partying. Sheriff Lee Ryker testified that Lane revealed the defendant had discarded the shoes he wore during the robbery. The sheriff found these shoes based on her information. When questioned, the defendant denied ownership of the shoes but acknowledged they had been his before trading them to a friend, Scott Jones, for a knife. Jones confirmed the exchange and testified about their frequent trading of items. James Michael Welty, a former cellmate of the defendant, recounted that the defendant expressed a desire to harm Lane and her daughter, implying he would pay someone to do so. Initially hesitant, Welty later clarified that the defendant threatened retribution against Lane even years later and admitted to discarding the shoes from the robbery. Welty acknowledged that the defendant never confessed to committing the robbery, instead expressing concern about his tennis shoes being held by the Clay County sheriff's department. The defendant detailed his financial situation leading up to March 1, 1999, including receiving two paychecks totaling nearly $400, a subsequent $50 to $60 paycheck, selling a car for $300, and receiving $200 from his sister's tax refund. He identified black tennis shoes recovered by Sheriff Ryker as similar to ones he previously owned but was unsure if they were his. The defendant recognized a gun recovered from Scott Jones as previously belonging to him, which he had in his possession at Motel 45 on March 1, 1999, for protection against J.R. Dalton. The defendant claimed he did not commit the Zink's robbery, stating he and Lane, along with her daughter, were at the motel from approximately 5 p.m. until 9:30 p.m. on March 1, 1999. After visiting his parents' home to retrieve a video game, he returned to warn them about the robbery. Upon returning to the motel, he encountered police nearby. The defendant and Lane maintained a relationship for a few days before he broke up with her to reconcile with a former girlfriend, while Lane ended the relationship due to wanting to work things out with her husband. The defendant asserted he owed no rent upon moving out, although the motel manager claimed he owed 16 days of rent, which he had been asked to pay before the robbery. The defendant argued that the trial court improperly admitted testimony regarding his alleged solicitation of Lane and her daughter’s murder, asserting it was overly prejudicial and detrimental to his right to a fair trial. He recognized that the admission of Welty's testimony regarding his request to "take care of" Lane and her daughter was relevant to demonstrate consciousness of guilt, but he contended that excessive details inflamed the jury's bias against him. While evidence of unrelated crimes is generally inadmissible to show a defendant's propensity for crime, it can be admitted if it serves a relevant purpose without being unduly prejudicial. Defendant has waived the issue of improper evidence admission due to a lack of contemporaneous objections during the trial and failure to raise the issue in a posttrial motion. This waiver prevents appellate review of the evidence in question, as established in People v. Enoch. The defendant acknowledged that some of the evidence was admissible, complicating the evaluation of prejudice on appeal. While the defendant contends that certain details regarding a solicitation to murder Lane were admissible, he argues that those concerning Lane's daughter were not. He further suggests that the admission of other-crimes evidence should qualify as plain error under Supreme Court Rule 615(a). However, the plain error rule applies only in cases of closely balanced evidence or significant errors that risk a fair trial. The court found the evidence against the defendant, including testimonies from 31 witnesses, compelling enough that the challenged evidence did not alter the trial's outcome. The trial court had discretion to admit Welty's testimony regarding the defendant’s threats, as it could demonstrate the defendant’s consciousness of guilt. Additionally, the court could allow the State to corroborate Lane's claims about the threats, especially since the defense heavily questioned Lane about them during cross-examination. Illinois law states that a defendant cannot complain about evidence that their own tactics invited. Lastly, the claim of ineffective assistance of counsel is dismissed as the defense strategy involved using the alleged threats to undermine Lane's credibility, rather than failing to object to the evidence. Lane's testimony regarding the defendant's threats was supported by Welty's, which was deemed largely cumulative. Defense counsel strategically chose to object to this testimony while focusing on the credibility issues of both witnesses, a decision that is generally respected as a matter of trial strategy and does not constitute ineffective assistance. The defendant did not demonstrate any prejudice from this representation, leading to the failure of his ineffective-assistance-of-counsel argument. Consequently, the doctrine of plain error does not apply to claims regarding the admission of other-crimes evidence, and the defendant has waived further review of this issue. Regarding sentencing, the defendant was convicted of armed robbery, which necessitated a judicial finding on whether the crime resulted in great bodily harm to the victim. The trial court made such a finding, limiting the defendant's good conduct credit to 4.5 days per month, requiring him to serve 85% of his 16-year sentence. The defendant contended that this sentencing structure was unconstitutional under the Supreme Court's ruling in Apprendi v. New Jersey, which mandates that any facts increasing a penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt. However, the defendant's argument that the judge's finding of great bodily harm unlawfully elevated his sentence was ultimately unsuccessful. Defendant’s 16-year prison sentence for armed robbery, a Class X felony, complies with the maximum penalty as established by Illinois law. The Apprendi ruling does not limit the legislature's authority to dictate how a sentence within the statutory range is to be served. The decision in Apprendi referenced McMillan v. Pennsylvania, where a mandatory minimum sentence was upheld, emphasizing that such a scheme does not exceed the maximum penalty nor create a new offense. The current case's statutory framework, which mandates that the defendant serve a minimum of 85% of his sentence, similarly does not alter the maximum penalty and restricts judicial discretion within the existing sentencing range. The appellate court affirms that the defendant’s eligibility for a maximum of 4.5 days of good-conduct credit per month is constitutional, aligning with prior rulings by the Supreme Court and the Fourth District Appellate Court. The conviction and sentence are thus affirmed.