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                              Appellate Court                             Date: 2016.08.18
                                                                          14:50:18 -05'00'




                  People v. Alvarez, 2016 IL App (2d) 140364



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JESSE ALVAREZ, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-14-0364



Filed             June 20, 2016



Decision Under    Appeal from the Circuit Court of Kane County, No. 10-CF-2260; the
Review            Hon. Susan Clancy Boles, Judge, presiding.



Judgment          Affirmed in part and vacated in part; cause remanded.



Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Steven E. Wiltgen, all of
Appeal            State Appellate Defender’s Office, of Elgin, for appellant.

                  Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                  Bauer and David A. Bernhard, both of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                  Presiding Justice Schostok and Justice McLaren concurred in the
                  judgment and opinion.
                                             OPINION

¶1       Following a bench trial, defendant, Jesse Alvarez, was convicted of five counts of
     attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), two counts of
     aggravated battery with a firearm (720 ILCS 5/12-4.2(a) (West 2008)), and one count of armed
     violence (720 ILCS 5/33A-2(a) (West 2008)). The trial court sentenced defendant to a total of
     88 years’ imprisonment on the five attempted first degree murder convictions. For two of those
     convictions, the court determined that consecutive sentencing was mandatory pursuant to
     section 5-8-4(d)(1) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-4(d)(1) (West
     2008)).
¶2       On appeal, defendant challenges the portions of the sentencing orders that required
     consecutive sentences as to the convictions of attempted first degree murder. He contends that
     the court erred in imposing the consecutive sentences, because the evidence was insufficient to
     support a finding that he inflicted severe bodily injury on the victim, Alexander Carrera, during
     the commission of attempted first degree murder as charged in counts I and II. We affirm in
     part, vacate in part, and remand.

¶3                                        I. BACKGROUND
¶4       Defendant was charged in an eight-count indictment with five counts of attempted first
     degree murder (counts I through V), two counts of aggravated battery with a firearm (counts
     VI and VII), and one count of armed violence based on criminal damage to property (count
     VIII). Pertinent to this appeal, count I alleged attempted first degree murder in that defendant
     personally discharged a firearm causing great bodily harm, permanent disability, or permanent
     disfigurement to Carrera by shooting him in the hip area. Count II alleged attempted first
     degree murder in that defendant personally discharged a firearm causing great bodily harm,
     permanent disability, or permanent disfigurement to Carrera by shooting him in the thigh.
     Counts III, IV, and V alleged attempted first degree murder in that defendant fired three other
     shots in Carrera’s direction, but those shots did not hit him.
¶5       Defendant’s bench trial commenced in September 2013. The State’s first witness, Samuel
     Sosa, testified that he and defendant were both members of the Latin Kings in Aurora, Illinois.
     The shooting took place on July 1, 2009; before that date, Sosa had possession of a Latin Kings
     “nation’s gun,” a .45-caliber semi-automatic handgun. Sosa had observed that this gun was
     loaded with seven or eight rounds, which included a mix of standard rounds and what Sosa
     described as “shotgun rounds.” Sosa gave this gun to defendant “a couple days” before July 1,
     2009. After July 1, 2009, defendant returned the gun to Sosa, saying that he had used the gun to
     shoot a “Maniac” (Maniac Latin Disciple) in the back of the leg.
¶6       Azael Ramirez, another member of the Latin Kings, testified that he had seen the gun
     before July 1, 2009, and had been sufficiently curious about the nonstandard rounds to empty
     the gun’s magazine to look at them. He testified that the magazine contained eight rounds, four
     of which were the nonstandard ones containing shot. When he finished looking at the rounds,
     he reloaded the magazine, alternating the standard rounds and the shot rounds. After the
     shooting, defendant came to Ramirez and spoke with him. Defendant said that Carrera was
     trying to go back into his house when defendant started firing.



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¶7         Carrera testified that he was at his house on the night of July 1, 2009, when he went outside
       to throw away a cigarette. He then noticed that someone, whom he later identified as
       defendant, was standing about 20 feet away at the bottom of the steps, his arms concealed
       behind him. Defendant asked, “What do you claim, dog?”—meaning, “State your gang
       affiliation.” Defendant’s question and posture prompted Carrera to turn around to try to run
       back into his house. Defendant fired multiple shots at Carrera, hitting him twice, once in the
       upper thigh and once near his knee. He felt a sting and fell to the floor, where he stayed until
       the police arrived. (An Aurora police officer, who was the first person to respond to the scene
       of the shooting, testified that Carrera walked out of the house when he arrived. However, the
       officer called an ambulance after seeing blood on Carrera’s leg.)
¶8         Carrera further testified that, in the period between the July 2009 shooting and the
       September 2013 trial, he had felt occasional pain in his leg during cold weather. This most
       recently happened two winters before the trial. He described the injury to his knee as a bullet
       graze. He also identified photographs showing his upper leg with numerous small wounds and
       his knee with a small wound. Some bullet fragments initially remained in the wounds; some
       came out on their own on the day of the shooting, and others fell out later. He believed that the
       last fragment came out after four or five months. Carrera testified that he had scars from the
       wounds, but he did not specify where. He also identified photographs showing firearm damage
       to his house.
¶9         On cross-examination, Carrera testified that he had an unrelated “altercation” with a
       12-year-old boy before the July 1, 2009, shooting. During that altercation, the 12-year-old boy
       shot at Carrera with a BB gun, striking him in the leg. In response to the State’s objection to
       that line of questioning, defense counsel responded that he was attempting to prove that the BB
       gun shot was the source of Carrera’s injuries.
¶ 10       The parties entered into a stipulation concerning Carrera’s medical treatment, as follows:
                    “1. That on July 1, 2009, Alexander Carrera was admitted at approximately 12:59
                A.M. and was treated in the emergency department of Provena Mercy Center hospital.
                    2. That ***Alexander Carrera was treated for puncture wounds to the upper left hip
                and thigh, and the lower left leg areas ***.
                    3. That *** the damage to Alexander Carrera’s upper hip and left thigh area were
                approximately 20, 2x2 mm wounds in a cluster at the left hip and thigh area that
                resembled a shotgun pattern.
                    4. That x-rays of Carrera’s upper left hip and buttock region showed multiple
                rounded metallic bullet fragments/buck shot fragments that are compatible with a
                gunshot injury. A few metallic bullet fragments clearly identified within the anterior
                subcutaneous tissues.
                    5. That x-rays of Carrera’s left hip showed two metallic densities which project
                over the left lower side of the abdomen that are compatible with a gunshot wound
                injury.
                    6. There were also two metallic densities which project in the medial tissues about
                the left knee joint compatible with a gunshot wound injury.
                    7. That Alexander Carrera was treated and released from Provena Mercy Center
                hospital approximately 8:10 A.M. on July 1, 2009 with the instructions to clean the



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                wounds three times a day with soap and water, apply bacitracin, and return if there are
                any signs of infection.”
¶ 11       Defendant rested without presenting evidence.
¶ 12       In its ruling, the court found defendant guilty on all eight counts. As to counts I and II, the
       court specifically found that the State proved beyond a reasonable doubt that defendant had
       caused “great bodily harm and permanent disfigurement” to Carrera, thereby requiring a
       25-year enhancement to any sentence imposed on each of those counts (720 ILCS
       5/8-4(c)(1)(D) (West 2008)). Additionally, because of the “seriousness of the victim’s
       injuries,” the court rejected defendant’s suggestion that the injury to Carrera’s knee area might
       have been the result of the shot from the BB gun. The court made no other findings as to the
       extent of Carrera’s injuries, and it did not make a finding as to whether Carrera suffered
       “severe bodily injury.”
¶ 13       At the subsequent sentencing hearing, the State argued that, because the court had made a
       finding of “severe bodily harm,” the sentences for counts I and II had to be served
       consecutively. Defendant did not dispute the State’s assertion that the court had made that
       finding, nor did he attempt to explain that the proper finding needed for the imposition of
       consecutive sentences was “severe bodily injury,” not “harm.”
¶ 14       Before imposing the sentences, the court stated that, “as previously found” (emphasis
       added), defendant had personally discharged a firearm and the resulting injuries constituted
       severe bodily injury to Carrera. It ruled that consecutive sentences were thus mandatory
       pursuant to section 5-8-4(d)(1) of the Code. The court sentenced defendant to 31 years’
       imprisonment on count I, to be served consecutively to 31 years’ imprisonment on count II.
       Both sentences included 25-year enhancements. The court imposed a 26-year sentence on each
       of counts III, IV, and V, which were to run concurrently with one another but consecutively to
       the sentences on counts I and II. The court determined that counts VI, VII, and VIII (two
       counts of aggravated battery with a firearm and one count of armed violence) merged into the
       attempted first degree murder counts. Defendant did not file a postsentencing motion, but he
       filed a timely notice of appeal.

¶ 15                                          II. ANALYSIS
¶ 16       Defendant argues that the court erred in imposing consecutive sentences on counts I and II.
       The State responds that defendant forfeited the issue by failing to object before the trial court to
       the imposition of consecutive sentences. Defendant concedes that he did not raise the issue
       below, but he argues that we should review the issue nonetheless.
¶ 17       To properly preserve an issue for appellate review, a party must raise the issue both at trial
       and in a posttrial motion. People v. Durham, 312 Ill. App. 3d 413, 420 (2000). The improper
       imposition of consecutive sentences, however, might violate a defendant’s fundamental rights.
       Durham, 312 Ill. App. 3d at 420. Thus, we may review the issue to determine whether the
       imposition of consecutive sentences constitutes plain error. Durham, 312 Ill. App. 3d at 420;
       see also Ill. S. Ct. R. 615(a) (“[D]efects affecting substantial rights may be noticed although
       they were not brought to the attention of the trial court.”).
¶ 18       As a general rule, when a court imposes multiple sentences at the same time, the sentences
       must run concurrently. 730 ILCS 5-8-4(a) (West 2008). An exception to that rule can be found
       in section 5-8-4(d)(1) of the Code, which mandates consecutive sentencing when a defendant


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       has been convicted of a Class X felony and inflicted “severe bodily injury” during the
       commission of that felony. 730 ILCS 5/5-8-4(d)(1) (West 2008). If a defendant’s convictions
       bring him or her within the purview of that exception, consecutive sentences must be imposed.
       People v. Stanford, 2011 IL App (2d) 090420, ¶ 47.
¶ 19       As a preliminary matter, we must determine the appropriate standard of review of a trial
       court’s determination that a bodily injury is “severe” for consecutive-sentencing purposes.
       Defendant suggests that this is a matter of statutory interpretation and that thus the standard of
       review is de novo. Our supreme court in People v. Deleon, 227 Ill. 2d 322 (2008), however,
       rejected that argument. Deleon, 227 Ill. 2d at 331-32. Whether a particular injury is “severe” is
       a question of fact, and thus the manifest-weight standard is appropriate. Deleon, 227 Ill. 2d at
       332. Accordingly, a trial court’s determination that an injury is severe for purposes of
       consecutive sentencing may be reversed only if it is against the manifest weight of the
       evidence. Deleon, 227 Ill. 2d at 332. A finding is against the manifest weight of the evidence
       only if the opposite conclusion is clearly evident or if the finding is unreasonable, arbitrary, or
       not based on the evidence presented. Deleon, 227 Ill. 2d at 332.
¶ 20       Here, the court initially found that the State proved beyond a reasonable doubt that
       defendant committed attempted first degree murder and caused “great bodily harm and
       permanent disfigurement” to Carrera by shooting him in the hip and knee. At the sentencing
       hearing, the court stated that, “as previously found,” defendant had inflicted “severe bodily
       injury” on Carrera, thus requiring consecutive sentences pursuant to section 5-8-4(d)(1) of the
       Code. The court, however, had never made an explicit finding that Carrera’s injuries
       constituted severe bodily injury.
¶ 21       Defendant contends that, although the trial court found that he caused “great bodily harm
       and permanent disfigurement,” those findings were insufficient to support a finding of severe
       bodily injury under section 5-8-4(d)(1) for purposes of consecutive sentencing, because they
       are two different standards.
¶ 22       The State responds that we should uphold the trial court’s imposition of consecutive
       sentences, because there is no practical difference between the terms “great bodily harm” and
       “severe bodily injury.” We disagree. The State relies on People v. Witherspoon, 379 Ill. App.
       3d 298 (2008), where the trial court deferred to the jury’s finding of great bodily harm as the
       basis for concluding that the victim sustained severe bodily injury, thus requiring the
       imposition of consecutive sentences. Witherspoon, 379 Ill. App. 3d at 303-04, 308. The Fourth
       District Appellate Court upheld the trial court’s imposition of consecutive sentences.
       Witherspoon, 379 Ill. App. 3d at 310. The court reasoned that the “difference between ‘great
       bodily harm’ and ‘severe bodily injury’ is merely semantic; no meaningful distinction can be
       made between ‘great’ and ‘severe’ or between ‘harm’ and ‘injury.’ ” Witherspoon, 379 Ill.
       App. 3d at 308.
¶ 23       We instead find persuasive the analysis in People v. Williams, 335 Ill. App. 3d 596 (2002),
       in which the First District noted that the use of the two different terms “great bodily harm” and
       “severe bodily injury” was intended by the legislature to achieve different results. Williams,
       335 Ill. App. 3d at 599-600; see also People v. Russell, 143 Ill. App. 3d 296, 303 (1986) (“One
       of the canons of statutory construction is that where the legislature uses certain words in one
       instance and different words in another, different results were intended.”). Specifically, the
       legislature chose to use the phrase “great bodily harm” in defining the offense of aggravated
       battery, while it used “severe bodily injury” in section 5-8-4. See Williams, 335 Ill. App. 3d at

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       600. The Williams court explained: “[b]ecause ‘great bodily harm’ defines an offense, while
       ‘severe bodily injury’ mandates consecutive sentencing, we conclude ‘severe bodily injury’
       requires a degree of harm to the victim that is something more than that required to create the
       aggravated battery offense.” Williams, 335 Ill. App. 3d at 600.
¶ 24        Similarly, these two concepts involve distinct considerations as they pertain to attempted
       first degree murder convictions. A finding of either is entitled to deference on review;
       however, whether a defendant inflicted “great bodily harm” determines whether a sentencing
       enhancement applies (see 720 ILCS 5/8-4(c)(1)(D) (West 2008)), whereas whether a
       qualifying offense resulted in “severe bodily injury” determines whether sentences must be
       consecutive (see 730 ILCS 5/5-8-4(d)(1) (West 2008)). Simply stated, we cannot agree with
       the suggestion in Witherspoon that there is no practical difference between these terms. A
       finding of “great bodily harm” does not necessarily or automatically result in a finding of
       “severe bodily injury” for purposes of consecutive sentencing. Had the legislature intended
       such a result, it could have so provided. See Williams, 335 Ill. App. 3d at 599-600 (“Where the
       legislature uses certain words in one instance and different words in another, different results
       were intended.”). Thus, without the trial court’s explicit finding of “severe bodily injury,” we
       decline to uphold the imposition of consecutive sentences pursuant to section 5-8-4(d)(1) of
       the Code solely on its finding of “great bodily injury” in connection with a sentencing
       enhancement.
¶ 25        Defendant suggests that we should simply modify his sentences to make them run
       concurrently, but we must instead vacate the portions of the trial court’s sentencing orders that
       imposed consecutive sentences and remand for reconsideration of whether consecutive
       sentences should be imposed.
¶ 26        Williams is again instructive. In Williams, the defendant was convicted of first degree
       murder and three counts of aggravated battery with a firearm. Williams, 335 Ill. App. 3d at 597.
       The trial court imposed consecutive sentences on the counts of aggravated battery with a
       firearm, but it did so without making any findings or observations about the severity of the
       wounds suffered by the victims. Williams, 335 Ill. App. 3d at 597, 599. The appellate court
       noted that there was “no question” that one victim suffered severe bodily injury where the
       gunshot wound to her arm resulted in emergency surgery and a hospital stay of 19 days.
       Williams, 335 Ill. App. 3d at 601. The other two victims, however, suffered gunshot wounds to
       their legs but did not receive immediate medical attention; one victim spent five or six hours at
       the hospital, and the other was released immediately after being treated. Williams, 335 Ill. App.
       3d at 601. Since the trial court made no factual findings as to those victims, the consecutive
       sentences imposed on those convictions were vacated and the case remanded for a “great
       bodily harm [v.] severe bodily injury inquiry.” Williams, 335 Ill. App. 3d at 601.
¶ 27        As in Williams, the trial court did not make any findings or observations about the severity
       of Carrera’s wounds. Although the court stated that it had “previously found” that Carrera’s
       injuries constituted severe bodily injury, it had never actually made such a finding. Instead,
       besides finding “great bodily harm,” the court had merely commented that it considered the
       “seriousness of the victim’s injuries” in rejecting defendant’s argument that the injuries
       occurred when Carrera was shot by a BB gun. This isolated comment about the “seriousness”
       of Carrera’s injuries cannot serve as the basis for upholding the court’s imposition of
       consecutive sentences.


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¶ 28        Without findings to review, we must not engage in our own assessment of the facts and the
       evidence to determine whether consecutive sentences were required under section 5-8-4(d)(1)
       of the Code. See Deleon, 227 Ill. 2d at 332 (a reviewing court will “give deference to the trial
       court as the finder of fact because it is in the best position to observe the conduct and demeanor
       of the parties and witnesses,” and it “will not substitute its judgment for that of the trial court
       regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences
       to be drawn”); Williams, 335 Ill. App. 3d at 601 (“It is true the trial judge is in the best position
       to determine the appropriate sentence, severity of injury being factual in nature.”).1
¶ 29        Because the trial court failed to actually make the requisite findings of severe bodily injury
       before imposing consecutive sentences, we vacate the imposition of consecutive sentences on
       counts I and II, as well as the court’s judgment requiring the concurrent sentences on counts
       III, IV, and V to be served consecutively to counts I and II. We remand the matter to the trial
       court. Specifically, on remand, the trial court shall determine whether defendant inflicted
       “severe bodily injury” during the commission of the offenses charged in counts I and II, so as
       to require the imposition of consecutive sentences pursuant to section 5-8-4(d)(1).

¶ 30                                       III. CONCLUSION
¶ 31       As defendant does not challenge any of his eight convictions or the length of his sentence
       on any of the individual counts, we affirm each conviction and the length of each sentence. We
       vacate the trial court’s judgment only to the extent that the court ordered certain of defendant’s
       sentences to be served consecutively, and we remand the matter for a determination on that
       aspect of defendant’s sentences.

¶ 32       Affirmed in part and vacated in part; cause remanded.




           1
            People v. Bailey, 2013 IL 113690, is also instructive. Although that case did not involve a
       determination of severe bodily injury for consecutive-sentencing purposes, the court held that it was
       not the proper role of the reviewing court to make a finding that a murder was exceptionally brutal
       and heinous so as to warrant a natural life sentence, even though the evidence might have supported
       such a finding. Bailey, 2013 IL 113690, ¶¶ 31-35.

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