People v. Deleon

Docket No. 103777.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

MIGUEL DELEON, Appellant.

Opinion filed January 25, 2008.

CHIEF JUSTICE THOMAS delivered the judgment of the court,

with opinion.

Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and

Burke concurred in the judgment and opinion.

OPINION

Following a bench trial, defendant, Miguel Deleon, was convicted

of first degree murder (720 ILCS 5/9–1(a)(1) (West 1996)) and

attempted first degree murder (720 ILCS 5/8–4, 9–1(a)(1) (West

1996)). The trial court sentenced him to a mandatory life term for the

first degree murder and a consecutive 30-year term for the attempted

first degree murder. Defendant appealed, and the appellate court

affirmed both the convictions and the sentences. People v. Deleon,

No. 1–99–0028 (2000) (unpublished order under Supreme Court Rule

23). Later, defendant filed a postconviction petition arguing that the

mandatory life term must be vacated because the statute authorizing

it was invalidated in People v. Wooters, 188 Ill. 2d 500 (1999). The

trial court summarily dismissed the petition. Defendant appealed, and

the appellate court vacated defendant’s life sentence and remanded for

a new sentencing hearing. People v. Deleon, No. 1–01–2469 (2003)

(unpublished order under Supreme Court Rule 23). At the

resentencing hearing, the trial court imposed a 100-year extended-

term sentence for the first degree murder and again imposed a

consecutive 30-year sentence for the attempted first degree murder.

Defendant appealed, and the appellate court affirmed the sentences.

No. 1–04–2934 (unpublished order under Supreme Court Rule 23).

We allowed defendant’s petition for leave to appeal. 210 Ill. 2d R.

315(a).

BACKGROUND

Defendant was a member of the Imperial Gangsters, a rival gang

of the Latin Kings. On the afternoon of April 4, 1997, defendant met

with some of his fellow gang members in “the Jungle,” a

neighborhood located near the intersection of Mannheim Road and

Crown Road in Franklin Park. Defendant was providing “security” for

the Imperial Gangsters that day, which means he carried a gun in the

event of an altercation with the Latin Kings. At some point, defendant

and his cohorts noticed a red Ford Mustang driving westward on

Crown Road. Because the car bore a Stone Park registration sticker

and contained a “crown air freshener,” the Imperial Gangsters

surmised that it belonged to a Latin King. When someone yelled

“flakes,” a term meaning “rival gang member,” defendant and another

Imperial Gangster ran through an apartment complex to intercept the

Mustang on Schiller Street. When the Mustang appeared on Schiller

Street, defendant and one of his fellow gang members stepped into the

street and stopped the car. An altercation ensued, and, from a distance

of three feet, defendant fired two shots through the driver’s side

windshield. One of those shots hit the driver, Jose Sanchez, in the

chest. Sanchez sped away toward Mannheim Road, passing an ice

cream truck surrounded by children. Defendant continued firing at

Sanchez, and seven-year-old Juana Nieto, who was standing beside

the ice cream truck, was shot and killed. A three-year-old boy and the

ice cream truck driver also sustained injuries.

At trial, Sanchez testified that, after hearing the initial gunshots,

he felt a “burning in [his] chest.” As he sped toward Mannheim Road,

Sanchez noticed an ice cream truck that was parked on Schiller Street

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and surrounded by children. When he reached Mannheim Road,

Sanchez drove to a gas station located at the corner of Mannheim

Road and Grand Avenue, a distance of approximately 1,500 feet from

the scene of the shooting.1 At the gas station, Sanchez continued to

feel the burning in his chest and “felt something running in the back.”

As he exited the Mustang, Sanchez recovered the bullet “from [his]

back.” When asked directly whether the bullet “went through” his

body, Sanchez answered “yes.” Similarly, Sanchez answered “yes”

when asked whether the bullet “exited” his body and when asked

whether the bullet “[came] out of” his back. After recovering the

bullet, Sanchez went inside the gas station and asked for help. When

the police arrived, Sanchez handed the bullet to an officer. Sanchez

was then taken by ambulance to Loyola University Hospital.

Photographs taken at the hospital depict a bullet wound in the left

center of Sanchez’s chest.

The trial court found defendant guilty of the first degree murder

of Juana Nieto and the attempted first degree murder of Jose Sanchez.

At the same time, the trial court acquitted defendant of the attempted

first degree murders of the three-year-old boy and the ice cream truck

driver, both of whom sustained wounds during the shooting.

Following a sentencing hearing, the trial court imposed a mandatory

life term for the first degree murder conviction, based on the fact that

defendant was 17 years old at the time of the offense and the victim

was under the age of 12. See 730 ILCS 5/5–8–1(a)(1)(c)(ii) (West

1996). For the attempted first degree murder conviction, the trial

court imposed a consecutive sentence of 30 years in prison. See 730

ILCS 5/5–8–4(a) (West 1996). In the course of imposing these

sentences, the trial court specifically found that Sanchez “was struck

through the chest” and that “the bullet went through his chest and in

fact exited his back.” The court also noted that, as a result of

defendant’s conduct, “the individual who was driving the ice cream

truck was struck and injured” and “another child on the street was

struck in the neck and injured.”

1

Although this distance is not a part of the record on appeal, this court

may take judicial notice of the distances between two locations. See Dawdy

v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177-78 (2003).

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Defendant appealed, and the appellate court affirmed both the

convictions and the sentences. Deleon, No. 1–99–0028 (unpublished

order under Supreme Court Rule 23). Later, defendant filed a

postconviction petition arguing that his mandatory life term must be

vacated because Public Act 89–203, which enacted the relevant

mandatory sentencing provision, was invalidated in People v. Wooters,

188 Ill. 2d 500 (1999). The trial court summarily dismissed the

petition, and defendant appealed. Citing Wooters, the appellate court

vacated defendant’s life sentence and remanded for resentencing under

the law that was in effect prior to the enactment of Public Act 89–203.

Deleon, No. 1–01–2469 (unpublished order under Supreme Court

Rule 23).

Following the remand, defendant was appointed new counsel. In

hopes of ascertaining new mitigation evidence, defense counsel

subpoenaed defendant’s records from the Illinois Department of

Corrections (hereinafter, Corrections). Because such records “shall be

confidential” (730 ILCS 5/3–5–1(b) (West 1996)), the trial court

examined defendant’s Corrections file in camera. Following the

examination, the trial court offered the following summary in open

court:

“The positive part of the documents is one page which

would show that Mr. Deleon passed his G.E.D. test. The other

documents I think, unfortunately, well, I won’t go any further.

That’s the only document”

The trial court then offered to make that single page available to

defense counsel, and defense counsel responded, “That would be

sufficient, Judge.”

Defendant’s resentencing hearing was held several weeks later. At

the start, defense counsel acknowledged that he had received a copy

of defendant’s new presentencing investigation (PSI) report and that

he had reviewed that report with defendant. Among other things, the

PSI report noted that defendant had obtained his G.E.D. while

incarcerated, had been working steadily since arriving in prison and

even received a promotion, and was housed in the “very low

aggressive cell house.” The report also included a long statement of

remorse from defendant, in which he explained that he was “young at

the time,” that he “never intended to hurt her,” and that he “wish[ed]

he could take it all back.” Defendant also stated that Juana Nieto’s

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murder “haunts me every day” and “is something I have to live with

for the rest of my life.” Elsewhere in the PSI report, defendant asks

the court to understand that he “didn’t do it,” that he’s “still young,”

and that all he wants is the “chance to be young and free and with my

family.”

In aggravation, the State recounted the facts of the case. At one

point, the trial court interjected that it recalled the case well and

offered the following summary of the relevant facts:

“As I remember it, we had a [gang member] who was over

in Franklin Park who saw an individual who is driving through

what is called *** the jungle of Franklin Park. And he chased

the car, shot the individual. That individual received a shot in

the chest. And he drove to an emergency facility where the

bullet fell out of his back and he survived. But during that

same shooting, there were some children over by an ice cream

truck. And it was the shooting as he ran around the car [that]

affected the children there, killing the twelve year old,

wounding the three year old, and, in fact, I believe, striking the

driver of the ice cream truck.”

The State then asked the trial court once again to impose a

consecutive 30-year sentence for the attempted murder conviction. In

so doing, the State reminded the trial court of its previous finding that

the gunshot wound to Sanchez’s chest was a severe bodily injury. For

the first degree murder conviction, the State requested an extended-

term sentence of 100 years, based upon the victim’s age. See 730

ILCS 5/5–5–3.2(b)(4)(i), 5–8–2(a)(1) (West 1996).

In response, defense counsel focused primarily on the United

States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.

466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Defense counsel

argued strenuously that Apprendi precluded the imposition of an

extended-term sentence for defendant’s first degree murder conviction

because the relevant statutory aggravating factor–that Juana Nieto

was under the age of 12 at the time of the offense–was neither pled in

the indictment nor proven beyond a reasonable doubt. In addition,

defense counsel asked the court to consider the information contained

in the PSI report, including “defendant’s statement in that report of

some remorse.”

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Before imposing sentence, the trial court stated that it had

reviewed “the transcripts and the facts of the case,” as well as the PSI

report. The trial court then imposed an extended-term sentence of 100

years in prison for the first degree murder conviction and a

consecutive sentence of 30 years in prison for the attempted first

degree murder conviction. Three weeks later, defense counsel filed a

motion to reconsider the sentence in which he reiterated his Apprendi

argument. Specifically, defense counsel argued that “the Court did

not, at the time of trial, specifically find that the age of the victim was

proven beyond a reasonable doubt.” Defense counsel also

acknowledged, however, that he was “working without the benefit of

a transcript of the Court’s original finding.” The trial court denied the

motion to reconsider sentence, and defendant appealed.

On appeal, defendant argued, inter alia, that (1) his new defense

counsel was ineffective because he neither obtained nor reviewed the

trial transcripts prior to the resentencing hearing; (2) the trial court

erred by not allowing defense counsel to examine the nonconfidential

portions of defendant’s Corrections records; and (3) the evidence did

not support the trial court’s finding that, for consecutive sentencing

purposes, Sanchez’s gunshot wound was a “severe bodily injury.” The

appellate court rejected each of these arguments and affirmed

defendant’s sentences. No. 1–04–2934 (unpublished under Supreme

Court Rule 23).

In addition to his brief, defendant filed a motion asking the

appellate court to conduct an independent review of defendant’s

Corrections file “to ascertain the correctness of the trial court’s ruling

regarding the existence of mitigation evidence.” At the conclusion of

that motion, defendant informed the court that, “[b]ecause the

[Corrections] file is in the hands of [Corrections], defendant cannot

obtain the record himself and have it certified as a supplemental

record.” Although the State advised the appellate court that it had no

objection to defendant’s request, the appellate court entered an order

denying defendant’s motion without comment.

We allowed defendant’s petition for leave to appeal. 210 Ill. 2d R.

315(a).

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DISCUSSION

Severe Bodily Injury

Defendant’s first argument is that the trial court erred in imposing

a consecutive sentence for the attempted first degree murder

conviction. The governing statute on this point is section 5–8–4(a) of

the Unified Code of Corrections, which at the relevant time stated:

“The court shall not impose consecutive sentences for offenses

which were committed as part of a single course of conduct

during which there was no substantial change in the nature of

the criminal objective, unless, one of the offenses for which

defendant was convicted was a Class X or Class 1 felony and

the defendant inflicted severe bodily injury *** in which

event the court shall enter sentences to run consecutively.”

(Emphasis added.) 730 ILCS 5/5–8–4(a) (West 1996).

According to defendant, the imposition of consecutive sentences in

this case is unwarranted because, although attempted first degree

murder is undeniably a Class X felony, the record does not support the

trial court’s finding that defendant inflicted “severe bodily injury”

upon Jose Sanchez.

As a preliminary matter, we must determine the appropriate

standard of review for a trial court’s determination that, for

consecutive sentencing purposes, a bodily injury is “severe.”

Defendant argues that such review requires interpreting the statutory

phrase “severe bodily injury” and that a de novo standard is therefore

warranted.2 The State responds that whether a particular injury is

“severe” is a question of fact and that a manifest weight standard is

therefore warranted. We agree with the State. In People v. Crespo,

203 Ill. 2d 335, 344 (2001), this court held that what constitutes

“great bodily harm” under the aggravated battery statute (see 720

ILCS 5/12–4(a) (West 2006)) is a question properly left to the fact

2

In his opening brief, defendant maintains that a de novo standard is

likewise warranted because “this case involves application of section

5–8–4(a) to undisputed facts in the record.” In his reply brief, however,

defendant concedes that one of the principal facts relevant to this

issue–whether the bullet fired into Sanchez’s chest exited through Sanchez’s

back–is in dispute.

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finder. We see no reason to treat the question of what constitutes

“severe bodily injury” any differently. If the fact finder can be trusted

to sort out which bodily harms are “great,” it can certainly be trusted

to sort out which bodily injuries are “severe.” Accordingly, we hold

that a trial court’s determination that a bodily injury is “severe” for

purposes of consecutive sentencing may be reversed only if it is

against the manifest weight of the evidence.

A finding is against the manifest weight of the evidence only if the

opposite conclusion is clearly evident or if the finding itself is

unreasonable, arbitrary, or not based on the evidence presented. In re

D.F., 201 Ill. 2d 476, 498 (2002). Under the manifest weight

standard, we 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. D.F., 201 Ill. 2d at 498-99. A reviewing

court 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. D.F., 201 Ill. 2d at 499.

Here, the evidence is more than sufficient to support the trial

court’s finding that Sanchez sustained a “severe bodily injury.” One

of defendant’s fellow gang members testified that defendant shot

Sanchez in the chest from a distance of approximately three feet. The

photographs introduced by the State reveal a bullet wound to the left

center of Sanchez’s chest. Sanchez testified that, after being shot, he

felt a “burning in [his] chest.” And while the photographs do not

depict an exit wound, the State asked Sanchez three different times,

and in three different ways, whether the bullet passed through his body

and exited through his back. Each time, he responded “yes.” Given

this evidence, the trial court was entirely justified in concluding that

Sanchez “was struck through the chest,” that “the bullet went through

his chest and in fact exited his back,” and that such an injury is

sufficiently “severe” to justify a consecutive sentence.

In opposition to this result, defendant makes two arguments. First,

defendant points to the following exchange between the prosecutor

and Sanchez:

“Q. Where did the bullet go through your body? At what

point did it come out?

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A. It came out–it didn’t go all the way through because I

had a sweater. When I got out on the street, it started running

down. I got it in my hand when I got out of the car.”

According to defendant, Sanchez’s statement that “it didn’t go all the

way through because I had a sweater” confirms that the bullet did not

pass through Sanchez’s body but instead only “graz[ed] his chest.”

Consequently, defendant argues, the trial court’s findings that Sanchez

“was struck through the chest” and that “the bullet went through his

chest and in fact exited his back” are not supported by the evidence.

Defendant reads too much into this isolated, and at best

ambiguous, piece of testimony. According to defendant, when

Sanchez stated that “it didn’t go all the way through because I had a

sweater,” Sanchez must have meant that the bullet did not go all the

way through his body. But it is also possible that Sanchez meant that

the bullet did not pass through his sweater. Indeed, Sanchez was

asked not only where the bullet had passed through his body, but also

where the bullet had “come out.” Sanchez’s response begins with the

statement “It came out.” Only then does Sanchez add that “it didn’t

go all the way through because I had a sweater.” It is certainly

reasonable to read this answer as saying “it came out of my body but

was caught by my sweater,” which, after all, comports with Sanchez’s

three unequivocal affirmations that the bullet did in fact pass through

his body and exit his back. At the very least, we cannot say that the

foregoing exchange renders the trial court’s understanding of

Sanchez’s testimony “unreasonable, arbitrary, or not based on the

evidence presented.”

Second, defendant argues that Sanchez’s behavior after being shot

confirms that he did not sustain a “severe bodily injury.” Specifically,

defendant points out that, despite his gunshot wound, Sanchez was

able to drive away from the scene, notice an ice cream truck

surrounded by children, get himself to a nearby gas station, collect the

bullet from his sweater, enter the gas station and ask for help, and wait

for the police to arrive. Moreover, defendant notes that, although

Sanchez was taken to the hospital for the treatment of his gunshot

wound, the State presented no evidence concerning the length of his

hospital stay, the nature of his treatment, or the intensity of his pain.

According to defendant, these facts confirm that Sanchez’s injury was

“not the type of debilitating or extreme injury contemplated by the

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legislature that warrants the mandatory imposition of consecutive

sentences.”

We disagree. We have already concluded that the evidence

adequately supports the trial court’s findings that Sanchez “was struck

through the chest” and that “the bullet went through his chest and in

fact exited his back.” Irrespective of the victim’s postshooting

behavior, we would have no difficulty affirming that a wound of that

nature constitutes “severe bodily injury.” That said, defendant’s

argument on this point is severely undermined by this court’s decision

in People v. Johnson, 149 Ill. 2d 118 (1992), which the State cites and

defendant does not address. In Johnson, this court found that “severe

bodily injury” was sufficiently proven where, after being shot once in

the shoulder, the victim walked out of the apartment where the

shooting occurred, flagged down a passing motorist, told the driver

there had been a robbery and a shooting, and had the motorist drive

him to a hospital. See Johnson, 149 Ill. 2d at 128-29, 159. Sanchez’s

postshooting behavior is not materially different from the Johnson

victim’s, and there is no reason to believe that Sanchez’s gunshot

wound was any less “severe” than the Johnson victim’s gunshot

wound. Accordingly, we reject any suggestion that Sanchez’s

postshooting conduct renders benign his through-and-through gunshot

wound to the chest.

Ineffective Assistance

Defendant next argues that defense counsel provided ineffective

assistance at the resentencing hearing. This argument takes two basic

forms, and we will address each in turn.

Failure to Read the Record and Transcripts

Defendant first argues that his resentencing counsel was per se

ineffective because the record establishes that counsel, who did not

represent defendant at the original trial and sentencing hearing, never

read the original trial and sentencing transcripts. In support of this

argument, defendant points to the following statement, which

appeared in the motion to reconsider sentence that counsel filed on

defendant’s behalf:

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“Counsel for defendant maintains, that the Court did not, at

the time of trial, specifically find that the age of the victim was

proven beyond a reasonable doubt, while acknowledging that

counsel is working without the benefit of a transcript of the

Court’s original finding.” (Emphasis added.)

According to defendant, this statement makes it “apparent that

[counsel] never read Deleon’s trial transcripts in preparation for the

[resentencing] hearing.” Moreover, given the gravity of such an

omission, defendant insists that he “should not be required to prove

the prejudicial effect of this error.”

The State responds that defendant’s argument rests on a faulty

factual premise. According to the State, the above statement in no

way proves that counsel “never read Deleon’s trial transcripts in

preparation for the [resentencing] hearing.” On the contrary, the

above statement appeared in counsel’s motion for reconsideration of

sentence, which was filed three weeks after both the resentencing

hearing and the imposition of sentence. Thus, the State maintains, the

most it proves is that counsel prepared that motion without the benefit

of a trial transcript. The State also notes that the original trial and

sentencing transcripts were available to counsel prior to the

resentencing hearing, and there are other comments from counsel that

suggest a working familiarity with the trial record.

We agree with the State. The record simply does not support

defendant’s claim. In relation to one of the factual assertions

contained in the motion to reconsider sentence, counsel conceded that

he was “working without the benefit of a transcript.” From this

concession, defendant asks this court to infer that counsel had been

“working without the benefit of a transcript” all along, even prior to

the resentencing hearing itself. Like the appellate court, we are

unwilling to draw such an inference, as it dramatically exceeds the

scope of counsel’s concession. All that reasonably can be inferred

from counsel’s concession is that he was “working without the benefit

of a transcript” at the time he prepared the motion to reconsider

sentence. The concession appears exclusively in that motion, and

nothing about it implicates counsel’s performance at or before the

resentencing hearing itself. Of course, this is no way proves that

counsel actually read the original trial and sentencing transcripts prior

to the resentencing hearing. On the record before us, as with most

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appellate records, we have no way of knowing one way or the other.

But that is sufficient to defeat defendant’s claim, as “[a] defendant

cannot rely on speculation or conjecture to justify his claim of

incompetent representation.” People v. Pecoraro, 175 Ill. 2d 294, 324

(1997).

Other Ineffectiveness Claims

Defendant’s second ineffectiveness claim is different but related.

Essentially, defendant argues that counsel’s failure to review the

original trial and sentencing transcripts caused counsel to commit a

series of prejudicial errors at the resentencing hearing. As we will

discuss more fully below, these alleged “errors” were not in fact

errors. Before getting to that, however, we wish to reiterate that the

record in no way supports defendant’s repeated assertion that counsel

failed to review the original trial record. Consequently, to the extent

that defendant attributes counsel’s alleged failings to a lack of

familiarity with the record, we reject his argument out of hand.

In determining whether a defendant was denied the effective

assistance of counsel, we apply the familiar two-prong test set forth

in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.

Ct. 2052 (1984), and adopted by this court in People v. Albanese, 104

Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance of

counsel, a defendant must show both that counsel’s performance was

deficient and that the deficient performance prejudiced the defendant.

Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064

(1984). More specifically, the defendant must demonstrate that

counsel’s performance was objectively unreasonable under prevailing

professional norms and that there is a “reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,

104 S. Ct. at 2068. The failure to satisfy either prong of the Strickland

test precludes a finding of ineffective assistance of counsel. Strickland,

466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

Defendant’s first claim is that counsel failed to correct the trial

court’s mistaken belief that an extended-term sentence was mandatory

in this case. In support of this claim, defendant points to the trial

court’s statement at the resentencing hearing that defendant was

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“entitled to” an extended-term sentence. According to defendant, the

use of the phrase “entitled to” suggests that the trial court “was not

aware that the imposition of an extended term was discretionary.” In

fact, the phrase “entitled to” suggests no such thing. As defined by

Webster’s, “entitle” means “to qualify (one) for something.”

Webster’s Third New International Dictionary 758 (1993). Similarly,

Black’s defines “entitle” as “to *** qualify for.” Black’s Law

Dictionary 573 (8th ed. 2004). Clearly, defendant was “qualified for”

an extended-term sentence, as he stood convicted of murdering a

seven-year-old girl. The trial court’s statement merely reflects this

obvious reality, and counsel therefore was under no obligation to say

otherwise.

Defendant’s second claim is that counsel was ineffective for failing

to argue defendant’s youth, remorse, and good prison behavior as

mitigating factors. Again, this claim is contradicted by the record. The

record shows that counsel specifically argued defendant’s remorse as

a mitigating factor, and defendant personally expressed his remorse to

the trial court just prior to sentencing. As for defendant’s age and

positive prison record, all of that was set forth in the PSI report,

which the trial court read and which counsel specifically asked the trial

court to take into account when arguing against an extended-term

sentence.3

Defendant’s third claim is that counsel was ineffective for failing

to argue that Jose Sanchez did not suffer a severe bodily injury and

that consecutive sentences were therefore impermissible. On this

point, there is an obvious lack of prejudice, as we have already

determined that the evidence more than supports the trial court’s

severe bodily injury finding. Moreover, counsel reasonably could have

concluded that any such argument was futile. The trial court

determined at the original sentencing hearing that Jose Sanchez

sustained a severe bodily injury, and the only reason for the remand

was that defendant’s other sentence was invalid. Under these

circumstances, counsel had little reason to expect that the trial court

3

Admittedly, counsel’s sentencing presentation focused far more on

Apprendi than it did on the mitigating evidence described above. But that is

not defendant’s argument. Defendant’s argument is that counsel “failed to

make any arguments in mitigation,” and that simply is not the case.

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would reverse itself, and his decision not to contest the severe bodily

injury finding therefore was reasonable.

Defendant’s final claim is that counsel was ineffective for failing

to correct the trial court’s “implication” that defendant was “adjudged

responsible for” shooting and wounding the three-year-old boy and

the ice cream truck driver. In support, defendant points to the trial

court’s observation at the resentencing hearing that, after shooting

Sanchez in the chest, defendant continued firing, “killing the twelve

year old [sic], wounding the three-year-old, and, in fact, I believe,

striking the driver of the ice cream truck.” According to defendant,

counsel should have reminded the trial court that defendant was

actually acquitted of the attempted murder charges that arose from

those two shootings, thereby ensuring that the trial court “did not

consider these findings in resentencing Deleon.”

Defendant’s argument is without merit. It is well established that

“evidence of criminal conduct can be considered at sentencing even if

the defendant previously had been acquitted of that conduct.” People

v. Jackson, 149 Ill. 2d 540, 549-50 (1992). Here, there is no dispute

that the trial court acquitted defendant of the attempted murder

charges arising from the shooting and wounding of the three-year-old

boy and the ice cream truck driver. Nevertheless, it is equally clear

that the trial court remained convinced that defendant did in fact shoot

and wound both the boy and the driver. At defendant’s original

sentencing hearing, which was held just 30 days after the trial court

acquitted defendant of the two attempted murder counts, the trial

court specifically found that, as a result of defendant’s conduct, “the

individual who was driving the ice cream truck was struck and

injured” and “another child on the street was struck in the neck and

injured.” The trial court then repeated these findings at the

resentencing hearing. Under Jackson, these findings were perfectly

proper, and the trial court was fully entitled to take them into account

when fashioning defendant’s sentences. Counsel had nothing to

correct and no basis to object.

Defendant’s Corrections File

Defendant’s final argument is that the appellate court erred in

refusing to conduct an independent review of defendant’s Corrections

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file and “ascertain the correctness of the trial court’s ruling regarding

the existence of mitigation evidence.” According to defendant, that

refusal “effectively denied Deleon review of the trial court’s ruling,

thereby infringing his *** constitutional right to appeal.” By way of

remedy, defendant asks this court to conduct its own review of

defendant’s Corrections records and to remand the cause for a new

sentencing hearing if the file contains additional potentially mitigating

evidence.

There is a fatal problem with defendant’s argument, and it relates

to the concession that defendant made in his appellate court motion:

defendant’s Corrections file is not part of the record on appeal.

Rather, the file was returned to the Department of Corrections after

the resentencing hearing, and with Corrections it remains. Though the

appellate court did not give a reason for denying defendant’s motion,

this is almost certainly it. The relevant records were not part of the

record, and the appellate court therefore had nothing to review, even

if it were so inclined.

In this court, the State directs our attention to Supreme Court

Rules 415(e) and 415(f) (134 Ill. 2d Rs. 415(e), (f)). In relevant part,

Rule 415(e) states that “[m]aterial excised pursuant to judicial order

shall be sealed, impounded and preserved in the records of the court,

to be made available to the reviewing court in the event of an

appeal.”134 Ill. 2d R. 415(e). Similarly, Rule 415(f) states that, “[i]f

the court enters an order granting relief following a showing in

camera, the entire record of such showing shall be sealed, impounded,

and preserved in the records of the court, to be made available to the

reviewing court in the event of an appeal.” 134 Ill. 2d R. 415(f). The

State argues that, having failed to ensure that the undisclosed portion

of his Corrections file was “sealed, impounded, and preserved in the

records of the court,” defendant has waived any right to review of the

trial court’s reading of that file. Defendant responds that “nothing in

the language of these rules puts the burden on the defendant to assure

compliance with this procedure.” Rather, “[a]s only the trial court had

access to the documents, it was its burden to comply with Supreme

Court Rule 415.”

Defendant’s argument is precluded by this court’s decision in

People v. Coates, 109 Ill. 2d 431 (1985). In that case, the defendant

sought to subpoena certain records from the Department of Children

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and Family Services for purposes of impeachment. Because such

records ordinarily are kept confidential, the trial court conducted an

in camera inspection of the records. As in this case, neither the State

nor defense counsel was present for the inspection. Following the

inspection, the trial court allowed the defendant to use only certain

portions of the Department’s records, keeping the remainder under

seal. On appeal, the defendant argued, inter alia, that the trial court

erred in failing to comply with Rule 415(f), “in that it made no record

of the proceedings in camera and failed to seal, impound and preserve

the records involved.” Coates, 109 Ill. 2d at 438. This court rejected

that argument, stating that “[t]he record fails to show that defendant

requested any such action, and under the circumstances, there is

nothing before us for review.” Coates, 109 Ill. 2d at 438. In other

words, and contrary to defendant’s argument, the burden “to assure

compliance with this procedure” does rest with the complaining party,

at least in the first instance. And absent a request for such compliance,

any deficiency in the record will be attributable that party.

The bottom line is that it is the appellant’s burden to present a

sufficiently complete record of the proceedings below to support a

claim of error and, in the absence of a complete record on appeal, it

will be presumed that the order entered by the circuit court was in

conformity with the law and had a sufficient factual basis. People v.

Fair, 193 Ill. 2d 256, 264 (2000). Here, defendant is asking this court

to review the accuracy of the trial court’s reading of defendant’s

Corrections file. However, that file is not part of the record, and

defendant never requested that it be made part of the record.

Consequently, as in Coates, “there is nothing before us for review.”

CONCLUSION

For the foregoing reasons, the judgment of the appellate court is

affirmed.

Affirmed.

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