¹ As noted earlier, prior to trial, defendant filed a notice of intent to rely upon the affirmative defenses of justifiable use of force in defense of a dwelling pursuant to sections 7- 2(a)(1) and 7-2(a)(2) of the Code (720 ILCS 5/7-2(a)(1), (a)(2) (West 2016)). We note, however, that the tendered instruction tracks only section 7-2(a)(1) of the Code (720 ILCS 5/7-2(a)(1) (West 2016)). - 14 - 2022 IL App (2d) 200119-U best, there was evidence that Peterson and defendant “were having some sort of verbal exchange, perhaps it was yelling, perhaps it was not,” but there was no evidence that Peterson tried to unlawfully enter defendant’s garage or home, much less that he did so in a tumultuous manner. The trial court sustained the State’s objection, ruling that there was insufficient evidence “to give rise to an attempted entry of a violent or riotous or tumultuous manner by Mr. Peterson or the other persons present.” Although the court denied the defense-of-a-dwelling instruction, it agreed to give defendant’s requested self-defense instruction. The defense did not ask for an imperfect self- defense instruction. ¶ 34 Following deliberations, the jury found defendant guilty of all seven offenses with which he was charged. The jury also found that defendant was armed with a firearm and that he personally discharged a firearm that proximately caused great bodily harm, permanent disability, or permanent disfigurement. ¶ 35 On July 17, 2019, defendant filed a motion for judgment notwithstanding the verdict and a motion for a new trial. In the former motion, defendant argued that he presented numerous witnesses to support his statement that he was acting in self-defense and the State failed to prove beyond a reasonable doubt that defendant did not act in self-defense. Thus, defendant reasoned, the evidence was insufficient to support a finding of guilty even if taken in the light most favorable to the State. In the latter motion, defendant argued, inter alia, that the trial court erred in failing to give his requested instruction on the use of force in defense of a dwelling. Following oral argument, the trial court denied both motions. The court then determined that, under one-act, one-crime principles, all the offenses of which defendant was convicted merged into count 4 of the indictment, which charged attempt (first-degree murder) in that defendant personally discharged a - 15 - 2022 IL App (2d) 200119-U firearm which proximately caused great bodily harm, permanent disability, or permanent disfigurement. ¶ 36 B. Sentencing ¶ 37 Defendant’s sentencing hearing was held on August 2, 2019. At the hearing, the State presented the testimony of Kelly Blum, Peterson’s mother. Blum testified regarding the changes to Peterson following the shooting. Blum testified that Peterson’s speech pattern is slower, he has difficulty getting out what he wants to say, he cannot walk, and his personality is not as vibrant as it was prior to the shooting. Further, Blum testified that Peterson is missing a portion of the right side of his brain, resulting in cognitive deficits and short-term memory problems. Blum also testified that Peterson is frustrated because he is unable to do normal things with his daughter, such as pick her up, make her dinner, give her a bath, or chase after her. Following Blum’s testimony, the State introduced into evidence pictures of Peterson before and after the accident. Thereafter, Blum, Peterson, Peterson’s father, and Peterson’s two sisters read victim-impact statements into the record. Defendant presented letters written from various family members and friends. The parties then presented oral argument, during which they discussed the statutory factors in mitigation and aggravation (730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2016)) and made sentence recommendations. The State requested a sentence of 50 years’ imprisonment (25 years for attempt (first-degree murder) plus a 25-year firearm enhancement). The defense requested a sentence of 31 years’ imprisonment (6 years for attempt (first-degree murder) plus a 25-year firearm enhancement). Defendant declined the opportunity to make a statement in allocution. ¶ 38 In pronouncing sentence, the court stated that it had considered the factors in aggravation and mitigation, the arguments of counsel, the applicable law, the financial impact of incarceration, the evidence introduced at the sentencing hearing, and the presentence investigation (PSI) report. - 16 - 2022 IL App (2d) 200119-U The court reviewed defendant’s family history, noting that he was raised primarily by his mother, has one brother and three stepsiblings, is not married, and has no children. The court also noted that defendant is a high-school graduate, has been gainfully employed most of his adult life, and has no health problems. In addition, the court noted that defendant has continued his education while in jail and obtained certificates of study. The court reviewed the PSI report, noting that defendant’s prior criminal history included a driving-under-the-influence (DUI) conviction from six years earlier as well as some other offenses that were older than the DUI. With respect to defendant’s attitude regarding the offense at issue, defendant told a probation officer that he provided several warnings before discharging the gun and that he was defending himself and his property. However, the court found that there was no evidence to suggest that defendant warned Peterson before shooting him in the face. Defendant also told the probation officer that he had been “railroaded,” and that the conviction was “way overdone.” The court found defendant had not been “railroaded,” and characterized his attitude as “troubling.” The court noted that whereas defendant can walk, Peterson “has been sentenced to a lifetime in a wheelchair” and was “robbed *** of the opportunity to be a meaningful father” to his daughter. ¶ 39 With respect to the statutory factors in mitigation, the court characterized defendant’s history of prior delinquency or criminal activity as “minor, and most of it is extremely old.” See 730 ILCS 5/5-5-3.1(a)(7) (West 2016). The court also found that defendant’s criminal conduct was a result of circumstances unlikely to recur. See 730 ILCS 5/5-5-3.1(a)(8) (West 2016). In this regard, the court stated that “the situation that occurred as [defense counsel] described it in terms of what was going on that day, the alcohol consumed, the situation involving the women that were there, I do think created a unique circumstance.” The court found that the remaining factors in mitigation did not apply. See 730 ILCS 5/5-5-3.1 (West 2016). With respect to the factors in - 17 - 2022 IL App (2d) 200119-U aggravation, the court found that defendant’s conduct caused or threatened serious harm. 730 ILCS 5/5-5-3.2(a)(1) (West 2016). The court remarked that Peterson “has suffered about as extreme amount of great bodily harm as a person could suffer without losing his life.” The court pointed out that Peterson lost an eye and a portion of his skull and he is paralyzed. Regarding whether the sentence is necessary to deter others from committing the same crime (730 ILCS 5/5-5-3.2(a)(7) (West 2016)), the court remarked: “I don’t think people sit there and say to themselves well, I’m not going to do this because I saw the sentence that [defendant] got, and so therefore, even though I’ve been drinking all night, and even though I’m upset about something that’s occurred, I’m not going to shoot this guy in the face ***. I don’t know that that necessarily deters anybody. That being said, I think that the Court is duty bound to at least acknowledge and make sure the community understands that when people get involved in this activity, this type of activity, there are going to be significant consequences that arise out of that, and so I do think *** [this factor] does apply.” Ultimately, the trial court sentenced defendant to a prison term of 45 years, which included a mandatory 25-year firearm enhancement. 720 ILCS 5/8-4(c)(1)(D) (West 2016). Defendant subsequently filed a motion to reconsider sentence, which the trial court denied on February 10, 2020. This appeal ensued. ¶ 40 II. ANALYSIS ¶ 41 On appeal, defendant raises three distinct issues. First, he argues that he was denied the effective assistance of counsel where counsel failed to request an instruction on the unreasonable belief in self-defense concerning the attempt (first-degree murder) charges. Second, he argues that the trial court abused its discretion when it refused to instruct the jury on defense of dwelling - 18 - 2022 IL App (2d) 200119-U because there was some evidence presented at trial to support such an instruction. Third, he argues that the sentence imposed by the trial court was excessive. We address each issue in turn. ¶ 42 A. Ineffective Assistance of Counsel ¶ 43 Defendant initially asserts that he received ineffective assistance of counsel because his trial attorneys failed to request an instruction on the unreasonable belief in self-defense. According to defendant, if the jury found that he unreasonably believed that he needed to act in self-defense, there is a reasonable probability that the jury would have acquitted him of the attempt (first-degree murder) charges as an unreasonable belief in self-defense negates the specific intent to commit an unjustified killing that is an element of attempt (first-degree murder). Consequently, defendant urges this court to reverse his conviction of attempt (first-degree) murder and remand the matter for a new trial before a properly instructed jury. In so arguing, defendant acknowledges that in People v. Guyton, 2014 IL App (1st) 110450, the court held that a defendant acting in unreasonable self-defense can still be convicted of attempt (first-degree murder) because there is no offense of attempt (second-degree murder) in Illinois. However, defendant contends that Guyton was wrongly decided and that its rationale is undermined by the supreme court’s holdings in People v. Lopez, 166 Ill. 2d 441 (1995), and People v. Reagan, 99 Ill. 2d 238 (1983). ¶ 44 In response, the State asserts that defendant’s argument should be rejected for two reasons. Relying on Guyton, 2014 IL App (1st) 110450, the State first contends that defense counsel’s performance was not deficient where the law does not support defendant’s proposed instruction. Second, the State contends that defendant cannot establish prejudice where the evidence supporting an actual belief in self-defense was nonexistent. As such, the State concludes that defendant has not established ineffective assistance of counsel and his conviction of attempt (first- degree murder) should be affirmed. - 19 - 2022 IL App (2d) 200119-U ¶ 45 A criminal defendant is guaranteed the right to the effective assistance of counsel by both the United States and Illinois Constitutions. U.S. Const., amend. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Peterson, 2017 IL 120331, ¶ 79. Claims that counsel provided ineffective assistance are evaluated under the familiar two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504, 526-27 (1984). To prevail on an ineffective-assistance-of-counsel claim, a defendant must demonstrate that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance resulted in prejudice. Strickland, 466 U.S. at 687-88; People v. Johnson, 2021 IL 126291, ¶ 52. A defendant must satisfy both prongs of the Strickland test to prevail on a claim of ineffective assistance of counsel. People v. Flores, 153 Ill. 2d 264, 283 (1992). Reviewing courts measure counsel’s performance by an objective standard of competence under prevailing professional norms. People v. Spiller, 2016 IL App (1st) 133389, ¶ 36. To establish deficient performance, defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. Spiller, 2016 IL App (1st) 133389, ¶ 36. To show prejudice, a defendant must establish that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Johnson, 2021 IL 126291, ¶ 52. Where, as here, the claim of ineffective assistance of counsel was not raised in the trial court, our review is de novo. People v. Lofton, 2015 IL App (2d) 130135, ¶ 24. ¶ 46 Pursuant to section 8-4(a) of the Code, “[a] person commits the offense of attempt when, with intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense.” 720 ILCS 5/8-4(a) (West 2016). In this case, the State charged defendant with attempt (first-degree murder). A defendant commits first-degree murder if - 20 - 2022 IL App (2d) 200119-U he or she kills an individual without lawful justification and, in performing the acts which caused the death, the defendant intended to kill or do great bodily harm or knew that his acts created a strong probability of death or great bodily harm to that individual. 720 ILCS 5/9-1(a)(1), (a)(2) (West 2016); Guyton, 2014 IL App (1st) 110450, ¶ 37. Thus, the State was required to prove that defendant “performed an act that constituted a substantial step toward the commission of first- degree murder and that [he] did so with the specific intent to kill the victim.” 720 ILCS 5/8-4(a) (West 2016); People v. Reynolds, 2021 IL App (1st) 181227, ¶ 34; People v. Viramontes, 2017 IL App (1st) 142085, ¶ 52. In this case, the jury rejected defendant’s self-defense claim, found that the State met its burden of proof, and convicted defendant of attempt (first-degree murder). ¶ 47 Defendant points out that an offender may mitigate the offense of first-degree murder to second-degree murder by proving the existence of a statutory mitigating factor by a preponderance of the evidence. 720 ILCS 5/9-2(c) (West 2016). The statutory mitigating factors to which defendant refers are serious provocation or imperfect self-defense. 720 ILCS 5/9-2(a) (West 2016); People v. Jeffries, 164 Ill. 2d 104, 112-13 (1995). The imperfect self-defense form of second- degree murder occurs when there is sufficient evidence that the defendant believed that he was acting in self-defense, but his belief was objectively unreasonable. 720 ILCS 5/9-2(a) (West 2016); Jeffries, 164 Ill. 2d at 113. Defendant suggests that because the legislature allows for mitigation from first-degree murder to second-degree murder where there is evidence of an unreasonable belief in the need to use deadly force in self-defense, a defendant should also be allowed to mitigate a charge of attempt (first-degree murder). According to defendant if he believed he was acting lawfully in self-defense when he shot Peterson, even if his belief was unreasonable, he lacked the specific intent to kill without justification, which is required for attempt (first-degree murder). Thus, defendant reasons, his attorneys should have requested an instruction on imperfect self- - 21 - 2022 IL App (2d) 200119-U defense to the attempt (first-degree murder) charges, instructing the jury to acquit him if it found that he acted with an unreasonable belief in the need for self-defense. ¶ 48 As noted, defendant relies on Reagan, 99 Ill. 2d 238, and Lopez, 166 Ill. 2d 441, in support of his position. In Reagan, the supreme court held that there was no crime of attempt (voluntary manslaughter) based on an unreasonable belief in self-defense. Reagan, 99 Ill. 2d at 240. The court explained that the attempt statute provides that “ ‘[a] person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.’ ” Reagan, 99 Ill. 2d at 240 (quoting Ill. Rev. Stat. 1979, ch. 38, par. 8-4(a)). Based on that statute, attempt (voluntary manslaughter), however, would require the defendant to specifically intend to kill without lawful justification and with an unreasonable belief in the need to use deadly force in self-defense. Reagan, 99 Ill. 2d at 240. Because it is impossible to intend an unreasonable belief, the court held that attempt (voluntary manslaughter) based on imperfect self-defense could not exist. Reagan, 99 Ill. 2d at 240. ¶ 49 In Lopez, 166 Ill. 2d 441 (1995), the defendant was charged with, inter alia, attempt (first- degree murder). He requested an instruction on attempt (second-degree murder) based on imperfect self-defense, i.e., the unreasonable belief in the need to use deadly force. The trial court rejected the instruction, finding there was no crime of attempt (second-degree murder) in Illinois. The jury returned a verdict of guilty, and the defendant appealed. On appeal, the defendant argued that the trial court erred in rejecting his requested instruction because attempt (second-degree murder) is an offense recognized in Illinois. The supreme court affirmed. The court noted that for a defendant to commit attempt, he must intend to commit a specific offense. Lopez, 166 Ill. 2d at 448. The court further noted that to commit second-degree murder, a defendant must have acted under a sudden and intense passion due to serious provocation or an unreasonable belief in the - 22 - 2022 IL App (2d) 200119-U need to use deadly force. Lopez, 166 Ill. 2d at 448. The court determined that a person cannot intend either of these things, and so, under the Illinois attempt statute, no crime of attempt (second- degree murder) exists. Lopez, 166 Ill. 2d at 449. ¶ 50 More recently, in Guyton, 2014 IL App (1st) 110450, the court held that a defendant could not mitigate an attempt (first-degree murder) conviction based on an unreasonable belief in the need for self-defense. In that case, the State charged the defendant with various offenses, including first-degree murder of one victim and attempt (first-degree murder) of another victim. At trial, the defendant argued that he acted in self-defense when he shot the two victims. As to the victim that died, the jury found the defendant guilty of second-degree murder based on an imperfect self- defense, i.e., an unreasonable belief in the need to use deadly force in self-defense. As to the victim that survived, the jury found the defendant guilty of attempt (first-degree murder). ¶ 51 On appeal, the defendant contended that because he fired simultaneously at the two victims, he could not have had an unreasonable belief in the need for self-defense as to the victim that was killed, but not as to the victim that survived. Thus, the defendant contended, his conviction of attempt (first-degree murder) must be vacated. The Guyton court rejected the defendant’s argument. The court observed that the mental state required to prove attempt (first-degree murder) and second-degree murder are the same. Guyton, 2014 IL App (1st) 110450, ¶ 41. Although second-degree murder requires the presence of a mitigating circumstance, the court noted that the presence of a mitigating factor does not negate the mental state of murder because mitigating factors are not elements of the crime. Guyton, 2014 IL App (1st) 110450, ¶ 41. The court further explained: “The evidence established, and the jury found, the intent required to sustain an attempted first-degree murder conviction. The determination by the jury that mitigating - 23 - 2022 IL App (2d) 200119-U circumstances existed allowed for a conviction of a lesser second degree murder offense because of defendant’s unreasonable belief in the need to defend does not invalidate the attempted murder conviction.” Guyton, 2014 IL App (1st) 110450, ¶ 46. The court further found that, pursuant to Lopez, 166 Ill. 2d 441 (1995), there is no offense of attempt (second-degree murder) in Illinois. Guyton, 2014 IL App (1st) 110450, ¶ 42. The court also observed that, in response to Lopez, the legislature could have addressed the issue of whether imperfect self-defense constitutes a mitigating factor for attempted murder, but chose not to. Guyton, 2014 IL App (1st) 110450, ¶ 45. Thus, the court reasoned, the legislature’s inaction suggested agreement with the judicial interpretation of Lopez. Guyton, 2014 IL App (1st) 110450, ¶ 45. In short, the court determined that even though the jury’s verdict on second-degree murder revealed that it found the defendant acted in imperfect self-defense, the jury could not have been instructed on and could not have found the defendant guilty of attempted second-degree murder. Guyton, 2014 IL App (1st) 110450, ¶ 46. ¶ 52 Thus, pursuant to Guyton, when a jury finds that the evidence establishes that the defendant committed the offense of attempt (first-degree murder), as in the instant case, a defendant’s ability to establish his unreasonable belief in the need for self-defense is irrelevant because the attempt statute does not provide for mitigation based on imperfect self-defense. Stated differently, under the current statutory scheme, the legislature has not provided for the affirmative defense of unreasonable belief in self-defense in cases of attempt (first-degree murder). Defense counsel recognized as much at the sentencing hearing, noting the “odd dichotomy in cases like this” in that if Peterson had died, “there would have been an argument for second-degree murder, in that his belief in defense, though held, was not reasonable.” - 24 - 2022 IL App (2d) 200119-U ¶ 53 Defendant suggests that Guyton was wrongly decided, citing Reagan, 99 Ill. 2d 238 (1983), and Lopez, 166 Ill. 2d 441 (1995), as support. However, neither Reagan nor Lopez stands for the proposition that a defendant who established an unreasonable need in self-defense cannot be convicted of attempt (first-degree murder). To the contrary, when a jury finds sufficient evidence to convict a defendant of attempt (first-degree murder), it necessarily finds that the defendant had the specific intent to commit first-degree murder, which cannot then be mitigated by the defendant’s unreasonable belief in the need for self-defense. Guyton, 2014 IL App (1st) 110450, ¶ 46. ¶ 54 We also point out that the legislature has not chosen to allow a defendant to mitigate the offense of attempt (first-degree murder) based on an imperfect self-defense claim, although it amended the attempt (first-degree murder) statute to allow a defendant to mitigate the offense if it resulted from provocation. See Pub. Act 96-710 (eff. Jan. 1, 2010) (amending 720 ILCS 5/8-4). Specifically, under section 8-4(c)(1)(E) of the Code, a defendant convicted of attempt (first-degree murder) is allowed to prove at sentencing, by a preponderance of the evidence, that the mitigating factor of provocation was present, so as to reduce the class of the offense from Class X to Class 1. 720 ILCS 5/8-4(c)(1)(E) (West 2016); Guyton, 2014 IL App (1st) 110450, ¶¶ 44, 61. As the court in Guyton observed, the legislature has, by its inaction, provided that a defendant acting under imperfect self-defense can nonetheless be convicted of attempt (first-degree murder). Guyton, 2014 IL App (1st) 110450, ¶¶ 45-46. More than seven years has elapsed since the Guyton court made these observations, yet the legislature has yet to amend the attempt statute to allow proof of imperfect self-defense as a basis for mitigation of a sentence for the crime of attempt (first-degree murder). See Guyton, 2014 IL App (1st) 110450, ¶ 45 (inviting the legislature to amend the attempt statute should it disagree with judicial interpretation). Thus, we reject defendant’s assertion that - 25 - 2022 IL App (2d) 200119-U the holdings in Reagan and Lopez necessitate a different outcome in this case, as the holding in Guyton is not inconsistent with either case. ¶ 55 Given the foregoing, we reject defendant’s contention that his trial attorneys were ineffective. As discussed above, a defendant cannot mitigate an attempt (first-degree murder) charge based on an unreasonable belief in the need for self-defense. Consequently, counsel’s decision not to request an instruction informing the jury that defendant should be acquitted if it found that he acted with an unreasonable belief in self-defense was reasonable. See Guyton, 2014 IL App (1st) 110450, ¶ 46. Because both prongs of the Strickland test must be satisfied, defendant’s failure to establish that trial counsel’s performance fell below an objective standard of reasonableness is fatal to his ineffective assistance of counsel claim. Flores, 153 Ill. 2d at 283. ¶ 56 B. Defense-of-A-Dwelling Instruction ¶ 57 Next, defendant argues that the trial court abused its discretion when it refused to instruct the jury on use of force in defense of a dwelling. “The purpose of jury instructions is to provide jurors with correct principles of law that apply to the evidence that has been submitted to them.” People v. Bauer, 393 Ill. App. 3d 414, 423 (2009). A defendant is entitled to an instruction on his or her theory of the case where there is some foundation for the instruction in the evidence. People v. Jones, 219 Ill. 2d 1, 21 (2006). The threshold of evidence required to raise an affirmative defense is low. People v. Kite, 153 Ill. 2d 40, 45 (1992). Generally, the defendant bears the burden to present evidence in support of his or her theory of the case, and where the defendant does not present supporting evidence, the proffered instruction should be refused. Kite, 153 Ill. 2d at 45. However, where the evidence presented by the State raises the issue of the affirmative defense, the defendant will be excused from presenting any evidence thereon. People v. Jones, 175 Ill. 2d 126, 132 (1997). The trial court’s decision to give a jury instruction is reviewed for an abuse of - 26 - 2022 IL App (2d) 200119-U discretion. Jones, 175 Ill. 2d at 132. An abuse of discretion occurs when “ ‘the trial court’s decision is arbitrary, fanciful, or unreasonable, to the degree that no reasonable person would agree with it.’ ” People v. Fane, 2021 IL 126715, ¶ 48 (quoting People v. King, 2020 IL 123926, ¶ 35); People v. Najar, 2018 IL App (2d) 160919, ¶ 18. ¶ 58 As noted, defendant argues that the trial court abused its discretion when it refused his tendered instruction on use of force in defense of a dwelling. Defendant argues that evidence was presented that he was standing in his garage at the time of the shooting, tensions were high after he was asked to leave Schroeder’s garage, Peterson went to his open garage uninvited to confront him about his conduct towards Melendez earlier in the evening, and Schroeder, Imel, and Millz stood nearby in Schroeder’s driveway “apparently as reinforcements for [Peterson] if needed.” According to defendant, this evidence was sufficient to put the question of defense of dwelling before the jury because it constituted evidence of “tumult” coupled with a reasonable fear of an assault or use of violence in the dwelling. Defendant therefore insists that the trial court abused its discretion when it refused to instruct the jury on the use of force in defense of a dwelling. ¶ 59 The State’s response is two-fold. First, the State argues that there was “zero evidence” adduced at trial to establish either of the necessary prongs to warrant a use-of-force-in-defense-of- a-dwelling instruction. Second, the State contends that because the defense theories of self-defense and of defense of dwelling were so intertwined, and because the jury was instructed on and rejected defendant’s self-defense claim, any error in the trial court’s decision not to give the use-of-force- in-defense-of-a-dwelling instruction was harmless. ¶ 60 Defendant’s proposed instruction tracked section 7-2(a)(1) of the Code (720 ILCS 5/7-2(a) (West 2016)), which provides: - 27 - 2022 IL App (2d) 200119-U “(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if: (1) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling.” 720 ILCS 5/7-2(a)(1) (West 2016). The supreme court has distilled the requirements of this statutory defense into two requirements. Sawyer, 115 Ill. 2d at 192. First, the victim’s entry or attempted entry must be made in a “violent, riotous, or tumultuous manner.” 720 ILCS 5/7-2(a)(1) (West 2016); Sawyer, 115 Ill. 2d at 192. Second, the defendant’s subjective believe that force is necessary to prevent an assault upon, or an offer of personal violence to, him or another in the dwelling must be reasonable. 720 ILCS 5/7- 2(a)(1) (West 2016); Sawyer, 115 Ill. 2d at 192. All the surrounding circumstances are relevant in assessing whether a defendant’s beliefs regarding defense of a dwelling were reasonable. Sawyer, 115 Ill. 2d at 193. ¶ 61 We hold that the trial court did not abuse its discretion in refusing defendant’s proposed instruction on defense of dwelling because there was not even slight evidence to support this affirmative defense. To begin, there was no evidence that Peterson or anyone else entered or attempted to enter defendant’s dwelling unlawfully. Peterson approached defendant simply to tell him that he did not appreciate the remarks defendant had made to Melendez. At the time, Peterson was outside defendant’s garage while defendant was standing just inside the garage. The distance - 28 - 2022 IL App (2d) 200119-U between the two men was between two and five feet. There was no evidence that Peterson tried to enter defendant’s home or that he made any movements toward defendant or the home prior to the shooting. Likewise, there was no evidence that either Schroeder, Belmore, Melendez, Imel, or Millz tried to enter defendant’s home or made any threatening movements toward defendant or the home prior to the shooting. Defendant insists that the question of whether Peterson attempted to enter his dwelling was a factual question for the jury to decide. However, there must be at least some evidence of an entry or attempted entry before the issue becomes a factual question for the jury. Kite, 153 Ill. 2d at 46. In this case, there was no evidence of any entry or attempted entry by Peterson or anyone else. Thus, there was no factual issue for the jury to resolve. ¶ 62 Additionally, there was no evidence of any “violent, riotous, or tumultuous” behavior by Peterson or any of the other individuals present. As noted above, Peterson approached defendant simply to tell him that he did not appreciate the remarks defendant had made to Melendez. Peterson testified that when he approached defendant, he did not have a gun or any other type of weapon with him. Peterson’s testimony that he was unarmed was corroborated by several of the State’s other witnesses and by Officer Marcellis, who testified that she did not see any weapons on or near Peterson’s body at the scene. Similarly, the evidence reflects that neither Schroeder, Belmore, Melendez, Imel, nor Millz were armed with a weapon. In addition, the State’s witnesses testified that they did not hear any yelling or shouting between Peterson and defendant prior to the shooting and that no one threatened defendant, walked towards him, or rushed him. Despite this record, defendant, relying on a dictionary definition of “tumult” (Merriam-Webster’s Dictionary and Thesaurus (2007), 854), insists that when Peterson approached him, the circumstances presented “a state of commotion, excitement or agitation, particularly where [Peterson] had reinforcements standing just feet away at the ready.” We disagree. As noted above, prior to the shooting, there - 29 - 2022 IL App (2d) 200119-U was no evidence of any yelling or shouting between Peterson and defendant. Nor was there evidence that Peterson, Schroeder, Belmore, Melendez, Imel, or Millz was armed, that anyone made any threats to defendant, or that anyone made any sudden movements toward defendant. Although Weiss described the tone of Peterson’s and defendant’s voices as “aggressive,” he also stated that it did not look as if there was a fight. Quite simply, the record is devoid of evidence of the type of commotion, excitement, or agitation to which defendant refers. ¶ 63 Failure to prove an entry or an attempted entry made in a violent, riotous, or tumultuous manner obviates the need to conduct an inquiry into the second prong of the defense. Nevertheless, there was no evidence that defendant had a reasonable, subjective belief that deadly force was necessary to prevent an assault upon, or an offer of personal violence to, him. Sawyer, 115 Ill. 2d at 192. The only evidence of defendant’s actual subjective belief came from Officer Rominski’s testimony. Rominski testified that as the officers attempted to handcuff defendant at the scene, he resisted and stated that he was “defending himself” because “four cars rolled up, 20 deep, and they were Mexican gangbangers that came to jump him and break into his house.” However, there was no evidence to corroborate defendant’s statements. Rominski testified that he arrived within three minutes of being dispatched and did not see carloads of people leaving or “20 Mexican gangbangers.” Similarly, Weiss, a neighbor, denied seeing “four carloads of people” or “20 Mexican gangbangers” in the area. Weiss further testified that prior to the shooting, he did not see any cars other than those being used by the neighbors who were moving in. Schroeder testified that there were only three cars in his driveway near the time of the shooting—his car, Belmore’s car, and the car driven by Imel. Schroeder further testified that no other cars arrived at his house prior to the shooting and no other persons arrived. Imel’s testimony corroborated that of Schroeder. - 30 - 2022 IL App (2d) 200119-U ¶ 64 Defendant nevertheless insists that because Peterson “confronted him” about Melendez and Schroeder, Imel, and Millz were standing just feet away in Schroeder’s driveway, there were “renewed tensions and conduct that placed [him] in reasonable apprehension of receiving a battery.” As noted above, however, there was no evidence that Peterson approached defendant in a confrontational manner. Peterson simply told defendant that he did not appreciate how defendant talked to Melendez. There was no yelling or shouting between the men. Further, there was no evidence that Peterson was carrying a gun, that he threatened defendant in any way, or that he made any sudden movements toward defendant prior to the shooting. Likewise, there was no evidence that Schroeder, Imel, or Millz was carrying a weapon, had threatened defendant, or rushed toward defendant prior to the shooting. ¶ 65 Citing to People v. Stombaugh, 52 Ill. 2d 130, 137-38 (1972), defendant contends that an intruder’s entry or attempted entry need not be forcible and that a person is justified in using deadly force to defend his dwelling before the intruder reaches the dwelling to prevent his entry. Defendant’s reliance on Stombaugh is misplaced for two principal reasons. First, the shooting in Stombaugh occurred after the intruder forcibly entered the dwelling. Stombaugh, 52 Ill. 2d at 134. In this case, there was no evidence that Peterson or anyone else entered or attempted to enter defendant’s dwelling unlawfully. Second, the intruder in Stombaugh had a history of violence against his wife and the shooter. This history included stalking, violent attacks against the wife and shooter, and repeated threats to kill both the wife and the shooter. Stombaugh, 52 Ill. 2d at 132-135. Defendant points to no such conduct by Peterson, Schroeder, or anyone else in this case that would give defendant reason to believe that shooting Peterson was necessary to prevent an assault upon, or offer of personal violence to, him. - 31 - 2022 IL App (2d) 200119-U ¶ 66 In sum, because defendant failed to provide even some evidence warranting the issuance of a defense-of-dwelling instruction, we conclude that the trial court did not abuse its discretion when it did not instruct the jury on the affirmative defense of defense of dwelling. ¶ 67 C. Sentencing ¶ 68 Finally, defendant contends that the 45-year sentence imposed by the trial court was excessive. Defendant maintains that there was no reason for the trial court to sentence him to more than the minimum 6-year sentence for attempt (first-degree murder) plus the 25-year firearm enhancement, for a total of 31 years’ imprisonment, where he had no prior serious criminal background, he had been gainfully employed his entire adult life, he had strong support from family and friends who vouched for his character, and his criminal conduct was a result of circumstances unlikely to recur. The State responds that the trial court did not abuse its discretion in sentencing defendant to a term of 45 years’ imprisonment given the seriousness of the offense. ¶ 69 A trial court has broad discretion in imposing a sentence, and its sentencing decisions are entitled to great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). As such, sentences within the permissible statutory range may be deemed an abuse of discretion only where they are greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. Alexander, 239 Ill. 2d at 212. The trial court’s responsibility is to balance the relevant factors and make a reasoned decision as to the appropriate punishment in each case. People v. Latona, 184 Ill. 2d 260, 272 (1998). The trial court has a far better opportunity to weigh such factors as the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. Alexander, 239 Ill. 2d at 213. A sentence must be based on the particular circumstances of each case and depends on many factors, including a defendant’s criminal history and the need to protect the public and deter crime. People v. McGee, 2020 IL App - 32 - 2022 IL App (2d) 200119-U (2d) 180998, ¶ 8. The reviewing court must not substitute its judgment for that of the trial court merely because it would have weighed the sentencing factors differently. Alexander, 239 Ill. 2d at 213. ¶ 70 Moreover, in imposing a sentence, the weight to be attributed to each factor in aggravation and mitigation depends upon the circumstances of the case. People v. Kozlow, 301 Ill. App. 3d 1, 8 (1998). While a sentencing court “ ‘may not refuse to consider relevant evidence presented in mitigation’ ” (People v. Calhoun, 404 Ill. App. 3d 362, 386 (2010) (quoting People v. Heinz, 391 Ill. App. 3d 854, 865 (2009)), it “has no obligation to recite and assign value to each factor presented at a sentencing hearing” (People v. Hill, 408 Ill. App. 3d 23, 30 (2011)). Where mitigating evidence was before the court, we presume that the sentencing judge considered the evidence, absent some indication to the contrary other than the sentence itself. People v. Allen, 344 Ill. App. 3d 949, 959 (2003). ¶ 71 In this case, defendant was convicted of attempt (first-degree murder). 720 ILCS 5/8-4, 9- 1 (West 2016). A defendant convicted of that offense faces a prison term between 6 and 30 years. 720 ILCS 5/8-4(c)(1) (West 2016); 730 ILCS 5/5-4.5-25(a) (West 2016). In addition, because the jury determined that defendant personally discharged a firearm that proximately caused great bodily harm, permanent disability, or permanent disfigurement during the commission of the offense, defendant was subject to an enhancement of 25 years or up to a term of natural life. 720 ILCS 5/8-4(c)(1)(D) (West 2016). Thus, defendant was subject to a prison term of between 31 years and natural life. Defendant’s sentence of 45 years’ imprisonment fell towards the lower end of this range. ¶ 72 Indeed, in fashioning the sentence imposed in this case, the trial court stated that it had considered the arguments of counsel at the sentencing hearing, the applicable law, the cost of - 33 - 2022 IL App (2d) 200119-U incarceration, the evidence introduced at the sentencing hearing, and the PSI report. The court referenced defendant’s family history, his marital status, his education level, his employment history, and the fact that he had furthered his education in jail and obtained certificates of study. However, the court characterized defendant’s attitude, as referenced in the PSI report, as “troubling.” The court noted, for instance, that while defendant told the probation officer that he provided several warnings before shooting Peterson, there was no evidence to support this claim. Similarly, the court found no evidence to support defendant’s claims that he had been “railroaded” and that the conviction was “way overdone.” The trial court also considered the factors in mitigation and aggravation. See 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2016). In mitigation, the court noted that while defendant had a history of prior criminal activity, it was “minor” and most of it was “extremely old.” 730 ILCS 5/5-5-3.1(a)(7) (West 2016). Citing the “unique circumstance” of the offenses, the court also determined that defendant’s criminal conduct was a result of circumstances unlikely to recur. 730 ILCS 5/5-5-3.1(a)(8) (West 2016). The court determined that there were no other mitigating factors that applied. In aggravation, the court found that the sentence was necessary to deter others from committing the same crime (730 ILCS 5/5-5-3.2(a)(7) (West 2016)) and that defendant’s conduct caused serious harm (730 ILCS 5/5-5-3.2(a)(1) (West 2016)). Regarding the latter aggravating factor, defendant shot Peterson in the head. The court found that Peterson “has suffered about as extreme amount of great bodily harm as a person could suffer without losing his life.” The shooting left Peterson paralyzed and resulted in him losing an eye and a portion of his skull. In addition, Peterson suffers from cognitive deficits, short-term memory problems, diabetes insipidus, and seizures. The seriousness of the offense and the degree or harm caused by the defendant are the most important factors in fashioning a defendant’s sentence. People v. Saldivar, 113 Ill. 2d 256, 263 (1986); People v. Watt, 2013 IL App (2d) 120183, ¶ 50. - 34 - 2022 IL App (2d) 200119-U Based on the evidence presented at the sentencing hearing, we cannot say that the sentence imposed by the trial court is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense. ¶ 73 Defendant nevertheless argues that the court abused its discretion by imposing a sentence for attempt (first-degree murder) that was over three times the minimum sentence. In support of his claim that his sentence is excessive, defendant cites evidence that: (1) he does not have a “prior serious criminal background;” (2) he has been gainfully employed his entire adult life; (3) he has strong support from family and friends who vouched for his character; and (4) his criminal conduct was a result of circumstances unlikely to occur. Defendant is, in essence, asking us to reweigh the evidence presented to the trial court and assign greater weight to the evidence he cites than did the trial court. However, as noted above, as a reviewing court, we simply are not permitted to do this. Alexander, 239 Ill. 2d at 213. ¶ 74 In short, given the trial court’s careful consideration of the evidence presented by the parties at the sentencing hearing, we hold that the trial court did not abuse its discretion in sentencing defendant to 45 years’ imprisonment. ¶ 75 III. CONCLUSION ¶ 76 For the reasons set forth above, we affirm the judgment of the circuit court of DeKalb County. ¶ 77 Affirmed. - 35 -