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FIRST DIVISION

October 13, 1998

No. 1-96-2845

JUSTICE O'BRIEN delivered the opinion of the court:

Following a jury trial, defendant, Joel Mayoral, was foundguilty of first-degree murder and sentenced to an extended term of75 years in prison. On appeal, he argues: (1) the trial courterred by barring the testimony of a witness who would have providedevidence corroborating defendant's theory of self defense; (2)defendant's court-reported statement was obtained in violation ofhis fifth and sixth amendment constitutional rights; (3) the trialcourt erred by failing to hold a fitness hearing; (4) the State didnot prove him guilty beyond a reasonable doubt; (5) the trial courtabused its discretion in sentencing him; and (6) his trial counselprovided ineffective assistance. We affirm.

At trial, Santiago Gutierrez testified that in May 1993, he,Jesus Rodriguez, Juan Guzman, and Omar Vaca lived together in abasement apartment at 2327 South Drake. On the evening of May 7,1993, Omar borrowed his father's car and drove his three roommatesto a nightclub. They left the club about 2:45 a.m. Juan drove thecar home, with Jesus in the front passenger seat, and Santiago andOmar in back.

Juan dropped Jesus and Santiago off at home, and Santiago gaveJuan some money to buy food. Juan and Omar then drove toward arestaurant at 26th and Kedzie. When Juan returned a few minuteslater, he had blood on him and he told Santiago and Jesus that Omarhad been shot. Santiago went out to the car, where he saw Omarlying in the rear passenger seat. The police arrived about fiveminutes later.

Detective Patrick Foley testified that on May 7, 1993, hereceived a radio call of a man shot at 2327 South Drake. When hearrived at the scene, several police officers were already thereand an ambulance was about to take Omar Vaca to the hospital, wherehe later died. Detective Foley examined the vehicle and saw bulletholes in the trunk lid, the area between the trunk lid and the rearwindow, the speedometer, the armrest, and the front windshield. Healso recovered a 36-inch broomstick from the driver's side of thecar.

Detective Michael Gerhardstein testified that he and DetectiveHoginson interviewed defendant at Area 4 police headquarters atapproximately 7 p.m. on November 21, 1994. They gave defendant hisMiranda rights, and he agreed to talk with them. DetectiveGerhardstein told defendant that his name had come up in connectionwith the murder of Omar Vaca. Defendant initially responded bydenying any role in the shooting.

Detective Gerhardstein then showed defendant some hand-writtenstatements from persons implicating defendant in the shooting. After reading the letters, defendant gave a court-reportedstatement in the presence of Detective Gerhardstein and AssistantState's Attorney Fahey.

In the statement, defendant said he was a member of the LatinKings street gang. At about 4 a.m. on May 7, 1993, Tom Perez, thehead of the 25th Street Latin Kings, gave defendant a gun and toldhim to "play security" for their gang at 2505 South Trumbull; "playsecurity" meant that defendant was to keep a look-out for membersof rival gangs.

A little while later, defendant saw a car pull up in front ofthe house at 2505 South Trumbull. One of the Latin Kings yelledthat the car contained members of the Disciples gang, which was arival gang to the Latin Kings. Defendant took the gun and went outfront, where he saw several members of the Latin Kings run up tothe car and throw bricks at it.

Fellow gang member Francisco Franco pounded on the car anddemanded that the people inside get out and identify themselves. Defendant then saw the passenger in the back of the car pull out a"stick." Next, he saw the car door open, and he heard Franco yell"he's reaching for something, he's reaching for something." Francoran for cover, and Tom Perez screamed out "shoot, shoot." Defendant fired a shot, and then Tom Perez yelled to keep shooting,so defendant continued to shoot towards the car even as it spedoff.

After the shooting, defendant ran to an alley and tried tothrow his gun on the roof of a garage. Then he ran back home andtook a nap.

Francisco Franco testified that in May 1993, he and defendantwere members of the Latin Kings. The 2500 block of Trumbull wasLatin Kings territory. At about 3:30 a.m. on May 7, 1993, Francosaw a car drive three times by 25th and Trumbull. The first timethe car drove by, the occupants of the car were both seated infront. The second and third times the car drove by, one of theoccupants sat in back.

The third time the car went by, the driver flashed a handsignal of a gang allied with the Latin Kings. However, the backseat passenger flashed a signal of an enemy gang. The conflictinghand signals aroused Franco's suspicions that the occupants of thecar might be enemies of the Latin Kings.

The car eventually stopped on Trumbull. Franco and some otherLatin Kings approached the car, and Franco yelled at the passengerin the back seat to get out and identify himself. The driver'sside door opened, and Franco saw the back-seat occupant reach downand come up with an object that looked like a shotgun or a rifle. Franco yelled out "he has a gun," then ran and hid between somecars.

Franco heard three or four gunshots, looked up and saw thatdefendant was the shooter. Franco and defendant then ran from thescene.

Defendant testified on his own behalf that in May 1993 he wasa member of the Latin Kings. At 3:30 a.m. on May 7, 1993, he wasat 25th and Trumbull with Tom Perez, Francisco Franco, and othermembers of the Latin Kings, when he observed a car drive by. Fiveminutes later, the car drove by again, and then it returned aboutfive minutes after that. Defendant saw the driver of the car givehand signals of a gang friendly with the Latin Kings, while theperson in the back seat gave signs of a rival gang. Defendantsuspected that the occupants of the car were going to do a drive-byshooting, so he went to the back of the house at 2507 SouthTrumbull and retrieved a gun.

When defendant returned from getting the gun, he saw the carstopped in the street. Members of the Latin Kings were approachingthe car, and Franco was standing near the driver's side of thevehicle. Defendant approached the car on the passenger side.

Defendant saw the back-seat passenger (Vaca) open the door,and he heard Franco yell at Vaca "what are you reaching for[?]" Defendant saw Vaca "come up with something long," which he "figured*** was a shotgun or rifle." Someone yelled "he's got a gun." Defendant then fired five or six shots at the car.

After his arrest, defendant learned that a 36-inch broomstickwas the only "long object" recovered from the car; no weapons werefound.

The jury convicted defendant of first-degree murder, and thetrial court sentenced him to an extended term of 75 years inprison. Defendant filed this timely appeal.

First, defendant argues the trial court erred by barring

a witness, Ansellmo Gallardo, from testifying about a violentencounter he had with Juan and Omar a few minutes before theshooting occurred, in an alley a block away from 25th and Trumbull. Defendant contends that the trial court should have admittedGallardo's testimony to support his argument that Juan and Omarwere the initial aggressors in the shooting. In support, defendantcites People v. Lynch, 104 Ill. 2d 194 (1984), which held thatevidence of the victim's aggressive and violent tendencies isrelevant and admissible to support defendant's assertion that thevictim was the aggressor where there are conflicting accounts ofwhat happened. Lynch, 104 Ill. 2d at 200.

Lynch is inapposite to the present case. The record indicatesthat Gallardo would have testified to a violent encounter he hadwith Juan a few minutes before the shooting; however, there is noindication that Gallardo would have testified he ever saw Omar, letalone had a violent altercation with him. Thus, Gallardo'stestimony was not admissible under Lynch, since it would have shedno light on Omar's (the victim's) allegedly aggressive behavior.

Defendant argues that evidence of a third party's (Juan's)aggressive tendencies is admissible where, as here, the third partyand the victim acted in concert during the confrontation with thedefendant. We disagree, as the cases defendant cites in support,People v. De Oca, 238 Ill. App. 3d 362 (1992), People v. Robinson,163 Ill. App. 3d 754 (1987), and In re W.D., 194 Ill. App. 3d 686(1990), are inapposite. In De Oca, the court determined that thevictim and a third person instigated the initial confrontation withthe defendant in which the victim was killed. De Oca, 238 Ill.App. 3d at 367-68. De Oca did not involve the admission ofevidence concerning the third party's prior aggressive behavior,and thus it has no bearing on the present case.

In Robinson, the defendant allegedly committed an act of self-defense against his attacker, during which a third person waskilled. The court held that evidence of the third person's priorthreats and acts of violence against defendant were admissible toshow defendant's state of mind while allegedly acting in self-defense. Robinson, 163 Ill. App. 3d at 774.

In W.D., the victim and a third person (John) were jointlyacting as aggressors against defendant's relative (Robert), anddefendant claimed that he stabbed the victim in defense of Robert.W.D., 194 Ill. App. 3d at 707. The trial court precluded a policeofficer from testifying whether defendant stated that John wasarmed with a bottle or threatened Robert with a bottle immediatelyprior to and during the fight. The trial court also precluded theofficer from testifying whether the defendant had stated that Johnhad a gun. W.D., 194 Ill. App. 3d at 707. The appellate courtfound reversible error, holding that "[t]he testimony sought bydefense counsel could hardly have been less remote or more relevantto the question of whether [defendant] was justifiably acting indefense of [Robert] at the instant he decided to use the knife." W.D., 194 Ill. App. 3d at 707.

Like Robinson, the testimony in W.D. concerned defendant'spersonal knowledge of a third-party's aggressive tendencies, andsaid testimony was admissible to show defendant's state of mindwhile allegedly acting in self-defense during an altercation inwhich the third party was present. See W.D., 194 Ill. App. 3d at707-08. By contrast, in the present case, Gallardo would havetestified to a violent altercation with Juan that occurred a blockaway from the shooting incident and that defendant never witnessednor had any personal knowledge of. Thus, unlike Robinson and W.D.,Gallardo's testimony was about an event remote from the shootingand not material or relevant to the issue of whether defendantacted in self-defense at the time he shot Omar. Accordingly, thetrial court did not abuse its discretion by barring Gallardo'stestimony.

Defendant argues that the State "opened the door" to theadmission of Gallardo's testimony by presenting evidence that Juanand Omar were "innocent passersby" who were merely driving to getsome food when the Latin King gang members attacked them. Defendant contends that the trial court should have admittedGallardo's testimony to counter said evidence and show that Juanand Omar were in fact driving into Latin King territory looking fortrouble. In support, defendant cites People v. Melock, 149 Ill. 2d423, 465 (1992)("[f]undamental justice requires that the defendanthave every opportunity to controvert the State's proof"), andPeople v. Wilbert, 15 Ill. App. 3d 974, 984 (1973) (when a partyopens the door to an issue by presenting evidence on that issue,"an opponent may reply with similar evidence if it is needed toeradicate an unfair prejudice which might ensue from the originalevidence").

Here, though, the trial court admitted substantial evidencecountering the State's evidence that Juan and Omar were "innocentpassersby"; in particular, defendant and Francisco Franco testifiedthat Omar and Juan drove by 25th and Trumbull three times andflashed contradictory gang signals, and that such behavior wasindicative of rival gang members who were about to commit a drive-by shooting. Given the admission of said evidence, Gallardo'stestimony was not needed to "controvert the State's proof" of Juanand Omar's innocent behavior (Melock, 149 Ill. 2d at 465) or"eradicate an unfair prejudice [ensuing] from the originalevidence." Wilbert, 15 Ill. App. 3d at 484. Rather, Gallardo'stestimony, of a violent altercation he had with Juan at a differenttime and place from the shooting, would have been collateral to thematerial issue here, i.e., whether defendant committed murder whenhe shot Omar. Therefore, the trial court did not abuse itsdiscretion in barring Gallardo's testimony. See People v. Batac,259 Ill. App. 3d 415, 426 (1994)(the trial court has the discretionto exclude evidence that is collateral to a material issue).

Next, defendant argues the trial court erred when it deniedhis motion to suppress his court-reported statement on the groundsthat the statement was not voluntarily given. To determine thevoluntariness of a statement, the court must look at the totalityof the circumstances surrounding the making of the statement,including the existence of threats, promises, or physical coercion,the length and intensity of the interrogation, and the age,intelligence and physical condition of the defendant. People v.Hernandez, 267 Ill. App. 3d 429, 432 (1994).

Application of these factors shows that defendant voluntarilygave his statement. At the time of his arrest, defendant was a 21-year-old who had completed two years of college. He had priorexperience with the criminal justice system and had been questionedduring prior arrests.

Defendant argues his statement was involuntary because it wastaken after police detained him for 17 hours. We disagree. Testimony at the hearing on the motion to suppress established thatdefendant was arrested around 11:30 a.m. on November 21, 1994, andtransported to the tenth district police station, where he wasbooked. Officers transported him to Area 4 police headquartersaround 4 p.m, at which time Detective Gerhardstein was notifiedthat defendant was in custody. Before questioning defendant,Detective Gerhardstein read the reports on the case and talked withan assistant State's Attorney. At around 7:30 p.m., DetectiveGerhardstein had a 45-minute conversation with defendant, duringwhich defendant gave an alibi for his whereabouts at the time ofthe shooting. Detective Gerhardstein then left defendant at Area4 police headquarters and talked with various persons in an attemptto verify the alibi. Detective Gerhardstein next talked todefendant at around 1 a.m., at which time defendant made an oraladmission of guilt. That conversation lasted about 45 minutes. The final conversation between Detective Gerhardstein and defendantoccurred at 4 a.m, when a court reporter transcribed defendant'sconfession.

Thus, defendant's lengthy detention period was due in largepart to Detective Gerhardstein's attempt to verify defendant'salibi, which defendant gave during his initial conversation withthe detective. Further, the duration of each interrogation sessionwas reasonable; the first two sessions lasted only 45 minutes each,and the last one lasted only as long as it took defendant to givehis court-reported statement. Accordingly, we determine that thelength of defendant's detention was not so unreasonable as torequire suppression of his statement. See also People v. House,141 Ill. 2d 323, 379-80 (1990) (statements taken after 25 and 37hours of detention held admissible).

Defendant argues that the repeated interrogations he wassubjected to during his time in custody rendered his subsequentstatement involuntary. Specifically, defendant contends that,during those interrogations, police officers threatened andphysically abused him. Detective Gerhardstein denied that he orany other officer in his presence threatened or harmed defendant,and Assistant State's Attorney Fahey testified that defendant toldher that the officers had treated him "fine." The court found thetestimony of Detective Gerhardstein and the assistant State'sAttorney to be credible, and we will not substitute our judgmenttherefor. People v. Young, 206 Ill. App. 3d 789, 800 (1990).

Defendant argues the officers tricked him into giving astatement by showing him the hand-written statements of his friendsnaming him as the shooter and by telling him that he shouldimplicate his friends so he would not "go down" alone. Defendantadmitted he read the statements and that they truthfully stated hewas the shooter. Defendant points to no evidence that his friends'statements were fabricated or made up by the officers. Accordingly, we reject defendant's argument that he was trickedinto giving a statement.

Defendant contends that, at the time of his statement, he wasin poor physical condition as a result of an earlier fall from aroof. Defendant argues that his physical condition rendered saidstatement involuntary. We disagree. The record indicates thatdefendant did not complain of injury or seek medical attention whenhe was questioned by Detective Gerhardstein, nor did the detectiveobserve any injury that would render defendant incapable of givinga statement.

Defendant also argues that the trial court should havesuppressed his statement because it was elicited by the police inviolation of his fifth and sixth amendment rights to counsel. Wedisagree. Under either amendment, the admonishment of Mirandarights generally suffices to render any subsequent waiver bydefendant of his right to counsel valid as a matter of law. Patterson v. Illinois, 487 U.S. 285, 296-97, 101 L. Ed. 2d 261,275, 108 S. Ct. 2389, 2397 (1988); People v. Lane, 256 Ill. App. 3d38, 51 (1993). The officers here testified that they gavedefendant his Miranda warnings, and that he waived his right tocounsel. The court found the officers' testimony credible, and asdiscussed above, we will not substitute our judgment therefor. Young, 206 Ill. App. 3d at 800.

For all the foregoing reasons, the trial court's order denyingdefendant's motion to suppress was not manifestly erroneous, whichis the standard of review we use when, as here, the motion turns onthe weight and credibility of the evidence. People v. Carter, 288Ill. App. 3d 658, 662 (1997).

Next, defendant argues the trial court erred by failing tohold a fitness hearing. Due process bars prosecution of a personwho is not fit to stand trial. People v. Birdsall, 172 Ill. 2d464, 474-75 (1996). Fitness to stand trial refers to defendant'sability to understand the nature and purpose of the proceedings andto assist in his defense. People v. Kinkead, 168 Ill. 2d 394, 407(1995). Although a defendant is presumed fit to stand trial (725ILCS 5/104-10 (West 1992)), the circuit court has a duty to ordera fitness hearing whenever a bona fide doubt exists as to thedefendant's ability to understand the charges and participate inhis defense. Kinkead, 168 Ill. 2d at 407.

Defendant argues that prior to trial, he was stabbed in aprison riot. As a result of the stabbing, defendant becameparalyzed and is confined to a wheelchair. Defendant contends thatthe seriousness of his disabling injuries, which were brought tothe attention of the trial court prior to trial, raised a bona fidedoubt as to his fitness.

Fitness speaks only to defendant's ability to function withinthe context of the trial; it does not refer to competence in otherareas. People v. Edmonds, 143 Ill. 2d 501, 519-20 (1991). Thefact defendant was paralyzed and confined to a wheelchair is notsufficient, in and of itself, to establish a bona fide doubt thathe was unable to understand the nature of the proceedings againsthim or participate in his defense. In fact, when apprising thecourt prior to trial about the nature of defendant's injuries,counsel made no claim that defendant's physical condition renderedhim unfit. Further, the record indicates that defendantparticipated in his defense and gave cogent testimony at trial. See People v. Burgess, 176 Ill. 2d 289, 304 (1997) (citing evidenceof defendant's testimony and the trial court's observation ofdefendant in determining fitness). Thus, the evidence hereindicates that defendant's injury and resulting paralysis did notraise a bona fide doubt as to his fitness.

Defendant's next argument, made for the first time on appeal,is that he was entitled to a fitness hearing because he ingestedthe psychotropic drug Elavil during his trial and sentencing. Defendant relies on section 104-21(a) of the Illinois Code ofCriminal Procedure of 1963 then in effect (725 ILCS 5/104-21(a)(West 1994)), which provided that "[a] defendant who isreceiving psychotropic drugs or other medications under medicaldirection is entitled to a hearing on the issue of his fitnesswhile under medication." 725 ILCS 5/104-21(a)(West 1994).⁽¹⁾

In a series of cases construing section 104-21(a) then ineffect, our supreme court held that a defendant who is takingpsychotropic drugs under medical direction at or near the time oftrial is entitled to a fitness hearing. See People v. Brandon, 162Ill. 2d 450 (1994); People v. Gevas, 166 Ill. 2d 461 (1995); Peoplev. Kinkead, 168 Ill. 2d 394 (1995) (Kinkead I); People v. Birdsall,172 Ill. 2d 464 (1996); People v. Nitz, 173 Ill. 2d. 151 (1996). The court held that the failure to hold such a hearing necessitatedreversal of defendant's conviction and remandment for furtherproceedings. Brandon, 162 Ill. 2d 450; Gevas, 166 Ill. 2d 461;Birdsall, 172 Ill. 2d 464; Nitz, 173 Ill. 2d 151. In one casewhere the record indicated defendant had been taking psychotropicmedication, but the details of his treatment could not beascertained from the record, the supreme court remanded to thecircuit court for the limited purpose of clarifying the schedule oftreatment and determining whether factual grounds for a fitnesshearing existed at the time of defendant's trial and sentencing. Kinkead I, 168 Ill. 2d at 417.

In People v. Burgess, 176 Ill. 2d 289 (1997), People v. Neal,179 Ill. 2d 541 (1997), People v. Cortes, 181 Ill. 2d 249 (1998),and People v. Kinkead, 182 Ill. 2d 316 (1998) (Kinkead II), thesupreme court modified the automatic reversal rule of Brandon andits progeny. Burgess, Neal, Cortes and Kinkead II held that adefendant denied his right to a fitness hearing is notautomatically entitled to a new trial if evidence presented to thecourt in a posttrial proceeding establishes that defendant did notsuffer impairment as a result of his ingestion of psychotropicmedication.

Defendant argues that since no such posttrial proceedingoccurred here, we should either reverse his conviction and remandfor a new trial pursuant to Brandon and its progeny, or remand fora Kinkead I hearing to determine whether factual grounds for afitness hearing existed at the time of trial or sentencing.

Defendant's argument fails because, unlike in Brandon orKinkead I, there is no indication anywhere in the record supportingdefendant's assertion that he used the psychotropic drug Elavil. People v. Kidd, 175 Ill. 2d 1 (1996), is instructive. In Kidd,defendant argued that he used Elavil, and therefore he was entitledto a fitness hearing. The supreme court rejected defendant'sargument, noting that there was no evidence in the record that hewas taking the psychotropic drug at any point near the time oftrial or sentencing. Rather, his references to psychotropictreatment predated by substantial periods the beginning ofdefendant's trial. Kidd, 175 Ill. 2d at 20. The court refused toremand the case for development of a further evidentiary recordconcerning the medication because to do so "would mean that aremand must be available in every case in which the record containssome reference to the defendant's long-ago treatment with apsychotropic drug." Kidd, 175 Ill. 2d at 20. Here, there is noevidence or indication in the record that defendant took Elavil atany time, and thus defendant has even less cause than Kidd to arguefor reversal or remandment. Further, since no evidence supportsdefendant's assertion that he took Elavil, said assertion isoutside the record and must be disregarded. See Service AdhesiveCo. v. Industrial Comm'n, 226 Ill. App. 3d 356, 366 (1992).

Defendant also argues for a section 104-21(a) fitness hearingbased on his taking two prescription drugs, Ibuprofen and Baclofen,seven months before trial. However, our supreme court has heldthat section 104-21(a) then in effect, which provides for a fitnesshearing for defendants "receiving psychotropic drugs or othermedications under medical direction," applies only when defendanttakes psychotropic drugs. 725 ILCS 5/104-21(a)(West 1994). Thus,treatment with nonpsychotropic drugs is not sufficient to triggerthe statute. People v. Britz, 174 Ill. 2d 163, 196-97 (1996);Kidd, 175 Ill. 2d at 18. Neither Ibuprofen or Baclofen is a psychotropic drug⁽²⁾; rather, Ibuprofen is an anti-inflammatoryagent, and Baclofen is a muscle relaxant and antispastic. SeePhysician's Desk Reference 1389, 1634 (51st ed. 1997). Thus,neither drug is the type that affects one's ability to understandthe charges against him or assist in his defense; accordingly,defendant's ingestion of those drugs does not raise a bona fidedoubt of fitness.

Further, the time lapse between defendant's ingestion of thedrugs and the time of trial provides yet another reason forrejecting his argument that he was entitled to a fitness hearing.

See Kidd, 175 Ill. 2d at 20.

Next, defendant argues the State failed to prove him guiltybeyond a reasonable doubt because he acted in self-defense. Onreview, this court will not reverse a criminal conviction unlessthe evidence is so improbable that a reasonable doubt ofdefendant's guilt is justified. People v. Moore, 171 Ill. 2d 74,94 (1996). The relevant inquiry is whether, after viewing theevidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements ofthe crime beyond a reasonable doubt. People v. Collins, 106 Ill.2d 237, 261 (1985).

A defendant who raises self-defense must establish someevidence of each of the following elements: (1) force isthreatened against defendant; (2) defendant is not the aggressor;(3) the danger of harm was imminent; (4) the threatened force wasunlawful; (5) defendant actually and subjectively believed a dangerexisted that required the use of the force applied; and (6)defendant's beliefs were objectively reasonable. (Emphasis added.) People v. Jeffries, 164 Ill. 2d 104, 128 (1995). Defendant's claimfails if the State negates any one of the self-defense elements. Jeffries, 164 Ill. 2d at 128.

Viewing the evidence in the light most favorable to theprosecution, the jury could have concluded that defendant was theaggressor here for arming himself with a gun, following his fellowLatin King members as they converged on the car, and firing at thecar even as it sped away. Thus, the evidence was not soimprobable, impossible or unsatisfactory as to raise a reasonabledoubt of guilt.

Defendant also argues that he satisfied his burden undersection 9-2(a)(2) of the Criminal Code of 1961 (720 ILCS 5/9-2(a)(2)(West 1996)), which reduces a first-degree murder convictionto second-degree if defendant proves by a preponderance of theevidence that at the time of the killing he had an unreasonablebelief in self-defense. We disagree. Since there was evidencefrom which the jury could conclude that defendant was theaggressor, this form of second-degree murder is unavailable to him. People v. Tenner, 157 Ill. 2d 341, 373 (1993); People v. Sloan, 111Ill. 2d 517, 521 (1986).

Next, defendant argues the trial court abused its discretionwhen it sentenced him to an extended term of 75 years in prison. Defendant contends the trial court failed to give adequateconsideration to his rehabilitative potential.

Defendant waived this issue by failing to file apostsentencing motion. People v. Reed, 177 Ill. 2d 389 (1997). Even choosing to address the issue on the merits, we find no error.

The trial court expressly stated that it had examined thepresentence report and the statutory factors in mitigation, andthus we may presume that the court took into account defendant'spotential for rehabilitation. People v. McCain, 248 Ill. App. 3d844, 853 (1993); People v. Grisset, 288 Ill. App. 3d 620, 635(1997). Defendant's argument to the contrary is that the courtnever commented on the issue of rehabilitative potential. However,the court is not obligated to recite and assign value to eachfactor it relies upon, nor does it need to place greater weight ondefendant's rehabilitative potential than on the seriousness of theoffense or the need to protect the public. McCain, 248 Ill. App.3d at 854. The trial court here found that the statutoryaggravating factors "far outweigh[ed]" any mitigating factors,specifically noting that defendant's conduct caused serious harm(730 ILCS 5/5-5-3.2(a)(1)(West 1996)), that defendant had a historyof criminal activity (730 ILCS 5/5-5-3.2(a)(3)(West 1996)),specifically, a prior conviction for attempted murder, and that thesentence was necessary to deter others from committing the samecrime (730 ILCS 5/5-5-3.2(a)(7) (West 1996)). The court correctlynoted that defendant was eligible for an extended 75-year sentencebecause his conviction for first-degree murder occurred within 10years after a previous conviction for attempted first-degreemurder. 730 ILCS 5/5-5-3.2(b)(7)(West 1996). We find no abuse ofdiscretion.

Finally, defendant argues his trial counsel providedineffective assistance. To establish a claim of ineffectiveassistance, defendant must show that counsel's performance fellbelow an objective standard of reasonableness and that counsel'sdeficient performance prejudiced defendant. People v. Albanese,104 Ill. 2d 504, 525 (1984).

Defendant contends his counsel was ineffective for failing tomove for a fitness hearing. We reject this argument. As discussedabove, no evidence existed that indicated a bona fide doubt as todefendant's fitness.

Defendant contends his counsel was ineffective for failing toobject to the State's motion to exclude explanation of howdefendant was injured, and for failing to seek a jury instructionexplaining the reason defendant was confined to a wheelchair. Wefind no ineffective assistance, as counsel correctly determinedthat the nature and reason for defendant's injuries were notrelated to the murder charge and, thus, were not a properconsideration for the jury.

Defendant also contends his counsel was ineffective forfailing to offer certain evidence in mitigation regarding hisrelationship with his mother and girlfriend. We find noineffective assistance. The mitigation evidence was included inthe presentence report. Trial counsel cannot be faulted forfailing to introduce mitigating evidence that was already includedin that report. People v. Hampton, 149 Ill. 2d 71, 110 (1992).

Defendant contends his counsel was ineffective for failing tofile a postsentencing motion. We disagree, as no prejudiceresulted from counsel's failure to file the motion.

For the foregoing reasons, we affirm the trial court. As partof our judgment, we assess defendant $150 as costs for this appeal.

Affirmed.

TULLY and GALLAGHER, J.J., concur.

1. ¹Following defendant's trial and sentencing, the legislatureamended the statute to provide: "[a] defendant who is receivingpsychotropic drugs shall not be presumed to be unfit to standtrial solely by virtue of the receipt of those drugs ormedications." 725 ILCS 5/104-21(a) (West 1996). The amendedstatute does not apply retroactively here. See People v.Kinkead, 182 Ill. 2d 316 (1998).

2. ²Britz, 174 Ill. 2d at 198, and Kidd, 175 Ill. 2d at 18,adopted the definition of psychotropic medication found insection 1-121.1 of the Mental Health and DevelopmentalDisabilities Code (405 ILCS 5/1-121.1 (West 1996)). Under thatdefinition, psychotropic medication is "medication whose use forantipsychotic, antidepressant, antimanic, antianxiety, behavioralmodification or behavioral management purposes is listed in AMADrug Evaluations, latest edition, or Physician's Desk Reference,latest edition, or which are administered for any of thesepurposes."