People v. Daly , 2014 IL App (4th) 140624 ( 2014 )

FILED
2014 IL App (4th) 140624 December 1, 2014
Carla Bender
NO. 4-14-0624 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
KATHERYN J. DALY, ) No. 13CF1853
Defendant-Appellant. )
) Honorable
) Richard P. Klaus,
) Judge Presiding.
____________________________________________________________
PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion.
Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶1 In March 2014, defendant, Katheryn J. Daly, entered an open plea of guilty to one
count of reckless homicide (720 ILCS 5/9-3(a) (West 2012)). In May 2014, the trial court
sentenced defendant to 3 1/2 years in prison. Defendant appeals, arguing the court abused its
discretion in rejecting probation, which was requested by defendant and recommended by the
State, and sentencing defendant to 3 1/2 years' imprisonment. On appeal, the State concedes the
court abused its discretion. We reduce defendant's sentence and remand with directions.
¶2 I. BACKGROUND
¶3 In the early hours of October 6, 2013, following a family birthday party, defendant,
then 24 years old, was driving four relatives around the family's rural property on a John Deere
Gator, which is an all-terrain-style vehicle (ATV). Seated next to defendant was her 19-year-old
cousin, Annie Daly. Defendant made a right turn, and the ATV skidded on wet gravel and
overturned. Annie fell off the ATV, suffered internal injuries, and later died. Defendant
admitted drinking alcohol earlier in the evening.
¶4 On November 7, 2013, the State charged defendant with two counts of aggravated
driving under the influence of alcohol (aggravated DUI) (625 ILCS 5/11-501(d)(1)(F) (West
2012)). At the March 20, 2014, pretrial conference, defendant advised the trial court she had
reached a plea agreement with the State and requested a plea date. The court stated it would "not
continue [the case] past today's date." According to the court, defendant's only choices were to
either enter a plea that day or go to trial at 1 p.m. on March 31, 2014. The following exchange
then took place:
"MR. LIPTON [(defendant's trial counsel)]: We have—and I
was trying to tell the Court that we have a plea agreement and we
didn't want to do it today because we don't have all the materials to
present to the Court. It could be [ready] next week.
THE COURT: I'm not here next week, Mr. Lipton. The
choices are a plea today or March 31 at 1:00 o'clock for trial.
MR. LIPTON: March 31, Judge.
THE COURT: Cause is allotted on the trial setting March 31
at 1:00 o'clock.
MR. LIPTON: I'm sorry. 1:00 o'clock?
THE COURT: 1:00 o'clock, Mr. Lipton, and it is set for trial
that date. I will expect the parties to be ready for trial that date.
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MR. LIPTON: Is the Court saying that the Court will not
accept a plea agreement that day?
THE COURT: Mr. Lipton, what I am saying is now that it is
set for trial you will plead open or you will go to trial on March 31."
The court then agreed with counsel's request to take up the matter again at the end of that day's
call.
¶5 At the end of the March 20, 2014, trial call, Julia Rietz, the Champaign County
State's Attorney, appeared personally and requested the court set a plea date. Rietz advised the
victim's family members wanted to read victim-impact statements to the court but were not
prepared that day to do so. The following exchange then took place:
"THE COURT: The question is why aren't they prepared.
MS. RIETZ: Because they're not.
THE COURT: Ms.—
MS. RIETZ: I can't—
THE COURT: —Rietz—
MS. RIETZ: —They haven't—
THE COURT: —two pre-trials in a row and you were not
present. Both of those pre-trials I informed your attorney and Mr.
Lipton that I would not continue this case past today's date. Two pre-
trials in a row. Sixty days.
Why?
-3-
MS. RIETZ: Because they are not prepared to proceed
today.
THE COURT: Are they here?
MS. RIETZ: They are here, your Honor.
THE COURT: Then they can make an oral statement to the
Court today.
MS. RIETZ: Your Honor, they're not prepared to proceed
today; and we're asking the Court to set it for a plea date.
THE COURT: Mr. Lipton, your continuance would be to
tomorrow at 9:00 o'clock. Otherwise it's a plea today. Otherwise it's
open on the date of trial or [a] trial."
¶6 The next morning, the State and defendant presented a negotiated plea agreement
whereby defendant would plead guilty to one newly charged count of reckless homicide (count
III) in exchange for the dismissal of the two aggravated DUI counts (counts I and II) and the
State's sentencing recommendation of 30 months' probation and 180 days in jail, to be served on
electronic house detention. The State offered the following factual basis for the plea:
"Your [H]onor, on Sunday, October 6 of 2013[,] at
approximately 3:00 o'clock in the morning deputies were called out
to the intersection of 600 and 1700E in Philo regarding an accident
with injuries. When they arrived there, they found Annie Daly age[]
19 who had suffered injuries. Katie Daly, the Defendant was present.
She had performed [cardiopulmonary resuscitation (CPR)] on Annie
-4-
and had revived her. She admitted that she had been driving the
family's [ATV] with Annie in the front seat and three other relatives
in the backseat on the family property. They were traveling to—back
from a bonfire after a family birthday party. When they approached
the intersection, she turned right and skidded on some wet gravel
overturning the [ATV] into the ditch. Annie fell out of the [ATV].
She suffered internal injuries. Later in the night at [the hospital] she
died [from] those injuries. The defendant admitted to having—
drinking alcohol earlier that evening and that the individuals in the
[ATV] were not wearing seatbelts at the time they were driving."
¶7 The trial court then rejected the plea agreement, emphasizing the public policy of
the aggravated DUI statute required a defendant to serve a period of incarceration. Specifically,
the court stated the following:
"Counsel, she's now charged with a third count and you're
asking me to accept the plea to the third count for probation. You
can't ignore the public policy embedded in the statute for which she is
charged in Count I [(aggravated DUI)]. Public policy and the law
that's embedded in the statute indicates that unless the Court
determines that extraordinary circumstances exist and require
probation the Defendant shall be sentenced—shall be sentenced to
serve a period of incarceration in the Illinois Department of
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Corrections between 3 and 14 years. The Court does not concur in
this sentence.
The cause is allotted for trial on March 31 at 1:00 o'clock."
(Emphasis added.)
¶8 At the beginning of the March 31, 2014, hearing, counsel for defendant stated he
"assumed the court was intent on its position of no negotiated plea," noting "the court had
previously stated that today was either an open plea or trial." The trial court responded in the
affirmative. Defendant then entered an open plea of guilty to one count of reckless homicide in
exchange for the dismissal of the two aggravated DUI counts. The State noted it did not object
to impact incarceration if a term of years was imposed.
¶9 The State offered the following factual basis for the plea:
"You [H]onor, if this case were called for trial, the evidence
would be that on Sunday, October 6, 2013, at approximately 3:00 in
the morning deputies were called out to the intersection of 1600 and
1700E in Philo regarding an accident with injuries.
When they arrived there they found Annie Daly, age 19, who
had suffered injuries. Defendant, Katie Daly, was present. She had
performed CPR on Annie and had revived her.
She admitted that she had been driving the family's [ATV]
with Annie in the front seat and three other relatives in the backseat
on the family property.
-6-
They were traveling back from a bonfire after a family
birthday party. When they approached the intersection, she turned
right and skidded on some wet gravel overturning the [ATV] into the
ditch.
Annie fell out of the [ATV]. She suffered internal injuries
and later that night at [the hospital] she died [from] those injuries.
[Defendant] admitted to having drunk alcohol earlier that
evening. And the individuals in the [ATV] were not wearing
seatbelts at the time."
The trial court found a factual basis shown for defendant's plea. The court then accepted the plea
and set the matter for sentencing.
¶ 10 The presentence investigation report (PSI) showed defendant was 24 years old, had
a 20-month-old son, lived with her son's father, with whom she had been in a relationship for
nine years, and had been employed as a registered nurse for the past three years. She had no
prior criminal convictions and only two minor traffic offenses. Although she did not present a
history of substance abuse, defendant completed a DUI risk evaluation and 10 educational hours.
While the probation officer answered "Yes" to the "Present Offense Alcohol Related:" form
question in the PSI, the PSI did not include any specific information indicating defendant was
intoxicated on the night in question.
¶ 11 At the May 16, 2014, sentencing hearing, the trial court stated it had considered the
PSI. The State presented no evidence in aggravation. The State requested the victim's family be
allowed to read two victim-impact statements. Leo Daly, Annie's brother, read a statement on
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behalf of the victim's siblings. According to the statement, "the family [has] never once blamed
[defendant] for this accident" and "taking [defendant] away from us, her family[,] and her son,
would be heart breaking." Leo stated, they had "lost one sibling and couldn't stand to lose
another." On behalf of Annie's siblings, Leo requested the court consider their feelings and
allow defendant to remain with them.
¶ 12 Sue Daly, Annie's mother, also read a statement on behalf of Annie's parents. She
noted defendant and Annie were friends and considered defendant "as another daughter."
Annie's mother explained, "to take [defendant] away from us would be like taking another
daughter from us." She asked the court to be lenient and not impose a prison sentence because
defendant "will live with this accident for the rest of her life, and the guilt she carries is
punishment enough."
¶ 13 Defendant presented over 200 pages of documents in mitigation. She also called
nine witnesses to testify on her behalf. Dr. Robert Bane, an orthopedic surgeon at Carle
Hospital, testified defendant was an excellent nurse, kind, compassionate, and very thorough.
Casey Shroyer, a physician assistant at Carle Hospital, testified every experience she had with
defendant had been positive and she never had a single complaint about defendant. Carmen
Zych, an associate professor of nursing at Parkland College, testified defendant provides a great
service to her community as a nurse. Zych added defendant "is a wonderful mother to her son"
and putting her in prison "would just break everyone's heart." Gina Johnson, defendant's mental-
health therapist, testified defendant had absolutely expressed responsibility for her cousin's
death. Johnson indicated she did not see substance abuse as a problem in this case. Defendant
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suffered from post-traumatic stress disorder, was taking an antidepressant and antianxiety
medication, and was fully engaged in counseling.
¶ 14 In her statement in allocution, defendant expressed remorse and took responsibility
for her actions.
¶ 15 As part of its sentencing recommendation, the State explained:
"[Defendant] is here on a sentencing on the charge of
reckless homicide, which carries a range of two to five years of
incarceration in the Illinois Department of Corrections, and it is a
probationable offense. As the court is well aware, the original charge
was aggravated driving under the influence of alcohol, and that
charge required that the court make a finding of extraordinary
circumstances in order to enter a sentence of probation. And this
court in a previous hearing indicated that you could not make that
finding. And while I respectfully *** disagree[,] *** that finding is
not required for a probation sentence under this charge for the offense
of reckless homicide.
Reckless homicide has no such requirement. Under the
Criminal Code, 730 ILCS 5/5-6-1, the law tells us that except where
specifically prohibited by other provisions of this code, the court
shall impose a sentence of probation or conditional discharge upon an
offense, unless having regard to the nature and circumstances of the
offense, and to the history, character and condition of the offender,
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the court is of the opinion that, one, imprisonment is necessary for the
protection of the public; two, probation or conditional discharge
would deprecate the seriousness of the offender's conduct and be
inconsistent with the ends of justice; or three, drug court is necessary
for the protection of the public and rehabilitation of the offender.
So in this case under the statute, because there is no specific
prohibition otherwise, the statute says the court shall impose a
community-based sentence. There is no requirement of incarceration.
It is an option, probation is, an entirely appropriate sentence based on
the decisions of the legislature for this offense."
¶ 16 According to the State, defendant's character, attitude, and history showed she was
unlikely to commit another crime. Defendant had no criminal history and "led a law abiding
life." It was the State's opinion defendant's criminal conduct "is absolutely unlikely" to recur.
The State also noted defendant is likely to comply with the terms of a period of probation and
had already completed many probation requirements on her own. Defendant had already
completed counseling, was engaged in individual therapy, and volunteered for public service.
She had not consumed alcohol since October 6, 2013. The State then recommended a sentence
of probation with, if the court found it necessary, a jail term. The State contended a prison
sentence would cause excessive hardship on defendant's infant son. Although it hoped
imprisonment would not be the sentence, the State indicated it had no objection to impact
incarceration and a minimum sentence.
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¶ 17 Defendant's counsel agreed with the State's argument and recommendation and
asked the trial court to reconsider the terms of the original negotiated plea in light of all the
information it now had before it. Defendant's counsel also noted the following:
"[Defendant] is remorseful. She is saddened. She has
suffered a loss as has her entire family. She acknowledges her
responsibility for that loss, and I'm asking the court to try to fashion a
sentence that achieves the societal ends of deterrence, without
throwing her in prison, which I think would be so damaging to the
family, so damaging to [defendant,] so damaging to [her infant son]."
¶ 18 In sentencing defendant, the trial court rejected both parties' recommendations and
alluded again to the public policy of the aggravated DUI statute. Specifically, the court stated
the following:
"[THE COURT]: Counsel, I have considered your
arguments, the defendant's exercise of her right of allocution. I have
considered all of the documentary evidence that has been submitted
to the court. I have considered the testamentary [sic] evidence that
has been submitted today in mitigation. I have considered the victim
impact statements. I have considered the statutory factors in
aggravation and mitigation.
I, too, [(addressing defendant's trial counsel)] have spent a
significant amount of time thinking about this case, especially since
the guilty plea was entered. I have thought about what I have done
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over the last nine years, and I tried to come up with a number in my
mind of defendants that I have sentenced as a result of either a death
or great bodily harm from the result of drinking. And the best that I
could do [was to] come up with a number of somewhere between
fifteen and twenty individuals. The one that sticks most recently in
my mind is the fact that within the last couple of weeks in this
courtroom, there was an agreed plea for a sentence of six years to the
Department of Corrections for a Champaign firefighter whose life has
been utterly and completely ruined by someone who made the choice
to drink and drive. This is not new; this is something I deal with
every day in this courtroom.
I read all of the material in mitigation that you provided to
the court. I started counting the number of times that the individuals
who wrote letters described this as an accident. I gave up at sixty.
The word accident was underlined on occasion, it was highlighted on
occasion, it was even defined at least once. I'm not the first judge in
this courtroom and unfortunately I will undoubtably [sic] not be the
last judge in this courthouse to say this. This was not an accident.
The defendant made a choice to drink. The defendant made
a choice to drive. As a result of those actions, someone died. It's not
an accident, it's a crime. Under the law, it is not a mitigating factor
that a family member died. The loss to society is the same whether
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Annie was killed by a family member or a total stranger. This is
absolutely a deterrable crime, and it must be deterred. It is the duty
of the court to see that it is deterred. If anything positive can come
from this crime, let it be this. Let this be the clarion message. If you
make the choice to drink and drive and you kill someone, regardless
of your station in life, you will face the consequences of your actions
in this court.
The court is of the opinion that a sentence of probation
would deprecate the seriousness of the offense. The defendant is
ordered incarcerated and the defendant is ordered to serve a period of
incarceration of three and a half years in the Illinois Department of
Corrections. The defendant is remanded into the custody of the
sheriff instanter. There will be no further relief entered by the court.
That is the court's order.
MR. LIPTON: And no impact incarceration.
THE COURT: No. You are remanded into the custody of
the sheriff to be transported to the Illinois Department of Corrections.
This court is in recess."
¶ 19 On May 30, 2014, defendant filed a motion to reconsider sentence, arguing the trial
court erred where (1) it improperly considered the public policy of the aggravated DUI statute;
(2) the sentence imposed was inconsistent with the public policy of section 5-6-1 of the Unified
Code of Corrections (Unified Code) (730 ILCS 5/5-6-1 (West 2012)), favoring a community-
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based sentence; (3) it improperly considered death and alcohol as aggravating factors; and (4) it
was biased against defendant based on the original charges filed.
¶ 20 At the July 7, 2014, hearing on defendant's motion, the State continued to stand on
its argument made at sentencing. The trial court denied defendant's motion, stating the
following:
"As I indicated I have read the Motion to Reconsider and the
motion—and the memorandum in support. There were extensive
arguments and rulings made, and I'm not going to revisit those.
I would note for the record that it has long been the black
letter law in this state that it is not evidence of bias by the trial court
that you lose a ruling. Someone always loses in court.
The Motion to Reconsider is denied."
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 A. Excessive-Sentence Claim
¶ 24 On appeal, defendant argues the trial court abused its discretion in sentencing her
to 3 1/2 years in prison. Specifically, defendant contends the court: (1) improperly focused on
the public policy of imprisoning individuals convicted of aggravated DUI instead of focusing on
the public policy of community-based sentences for individuals convicted of reckless homicide;
(2) demonstrated a predisposition against probation; (3) erred in considering the victim's death as
a factor in aggravation because it was an element of the offense of reckless homicide; (4)
improperly considered alcohol as an aggravating factor where no evidence was presented tying
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alcohol to the accident in this case; (5) erred in sentencing defendant in relation to other cases;
and (6) cannot sentence for the sole purpose of punishing a defendant. Defendant requests, inter
alia, we reduce her sentence to probation.
¶ 25 The offense of reckless homicide is a Class 3 felony (720 ILCS 5/9-3(d)(2) (West
2012)) punishable by a sentence of between two and five years' imprisonment (730 ILCS 5/5-
4.5-40 (West 2012)). It is a probationable offense. The trial court's 3 1/2-year sentence is within
the statutorily allowed sentencing range. However, it is not enough for the sentence to be within
the permissible range. A sentence outside the range is void, not excessive. People v. Thompson,
209 Ill. 2d 19, 24, 805 N.E.2d 1200, 1203 (2004); People v. Pinkonsly, 207 Ill. 2d 555, 569, 802
N.E.2d 236, 245 (2003). Thus, the phrase "excessive sentence" contemplates something else. It
is reserved for a sentence within the statutory range but without regard for a particular
defendant's rehabilitative potential. See People v. Perruquet, 68 Ill. 2d 149, 154-55, 368 N.E.2d
882, 884 (1977).
¶ 26 The Illinois Constitution provides penalties are to be determined both according to
the seriousness of the offense and with the objective of restoring the offender to useful
citizenship. Ill. Const. 1970, art. I, § 11; Perruquet, 68 Ill. 2d at 154-55, 368 N.E.2d at 884.
This constitutional mandate calls for balancing the retributive and rehabilitative purposes of
punishment, and the process requires careful consideration of all factors in aggravation and
mitigation. People v. Quintana, 332 Ill. App. 3d 96, 109, 772 N.E.2d 833, 845 (2002). A
reasoned sentence must be based on the particular circumstances of each case. Perruquet, 68 Ill.
2d at 154, 368 N.E.2d at 884. Because of the trial court's opportunity to assess a defendant's
credibility, demeanor, general moral character, mentality, social environment, habits, and age,
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deference is afforded its sentencing judgment. People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d
626, 629 (2000). However, the appellate court was never meant to be a rubber stamp for the
sentencing decisions of trial courts. A reviewing court may disturb a sentence within statutory
limits if the trial court abused its discretion in imposing a sentence. Stacey, 193 Ill. 2d at 209-10,
737 N.E.2d at 629.
¶ 27 In its appellee brief, the State explicitly concedes defendant's arguments and argues
itself the trial court "abused its discretion in rejecting probation and sentencing defendant to
three-and-a-half years' imprisonment for reckless homicide" where (1) an individual convicted of
reckless homicide should be given a community-based sentence unless certain statutory
exceptions, not applicable in this case, apply; (2) the court demonstrated a predisposition against
probation; (3) the court improperly considered death and alcohol as factors in aggravation; (4)
the court erred in sentencing defendant in relation to other cases; (5) the court cannot sentence
for the sole purpose of punishment; and (6) the court rejected the succinct recommendation of
the prosecutor. In the alternative, the State argues, "even if this court finds no abuse of
discretion, equity and justice require a new sentencing hearing." (Emphases added.)
¶ 28 Generally, the Unified Code creates a presumption in favor of probation. People v.
Vasquez, 2012 IL App (2d) 101132, ¶ 64, 971 N.E.2d 38 (citing 730 ILCS 5/5-6-1(a) (West
2006)). It is undisputed defendant in this case was eligible for probation. See 730 ILCS 5/5-5-
3(c)(2) (West 2012). As the State correctly pointed out, section 5-6-1(a) of the Unified Code
requires a sentence of probation unless the court finds a prison sentence is necessary for the
protection of the public or if probation would deprecate the seriousness of the offender's conduct.
730 ILCS 5/5-6-1(a) (West 2012). Specifically, section 5-6-1(a) provides, in relevant part, the
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following:
"(a) Except where specifically prohibited by other provisions
of this Code, the [trial] court shall impose a sentence of probation or
conditional discharge upon an offender unless, having regard to the
nature and circumstance of the offense, and to the history, character
and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic
imprisonment is necessary for the protection of the
public; or
(2) probation or conditional discharge would
deprecate the seriousness of the offender's conduct
and would be inconsistent with the ends of justice
***[.]" 730 ILCS 5/5-6-1(a) (West 2012).
¶ 29 In this case, the trial court stated, "a sentence of probation would deprecate the
seriousness of the offense." However, in making this determination, the court was statutorily
required to consider "the nature and circumstance of the offense" and "the history, character and
condition of the offender" in doing so. 730 ILCS 5/5-6-1(a) (West 2012). The appellate court
presumes the trial court considered only appropriate factors in sentencing unless the record
affirmatively shows otherwise. Quintana, 332 Ill. App. 3d at 109, 772 N.E.2d at 845.
¶ 30 Our review of the record in this case shows little to indicate the trial court
considered "the nature and circumstance of the offense," "the history, character and condition of
the offender," or defendant's rehabilitative potential in fashioning its sentence. Instead, the
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record shows the court considered the nature and circumstances of an offense to which defendant
did not plead guilty.
¶ 31 For example, in sentencing defendant, the trial court emphasized, "[i]f you make
the choice to drink and drive and you kill someone *** you will face the consequences of your
actions in this court." The court also stated, "the defendant made a choice to drink," "the
defendant made a choice to drive," and "as a result of those actions, someone died." However,
the court accepted defendant's guilty plea for reckless homicide. While the evidence submitted
by the State as its factual basis for the plea included the fact defendant "admitted to having drunk
alcohol earlier that evening," the factual basis offered did not state defendant was intoxicated or
otherwise imply she drove while under the influence of alcohol. In fact, no evidence was
presented to even suggest defendant was speeding while operating the ATV. According to the
factual basis accepted by the court, defendant "turned right and skidded on some wet gravel
overturning the [ATV] into the ditch." The victim "fell out of the [ATV]," "suffered internal
injuries," and later that night "died [from] those injuries." The court's comments suggest it
ignored "the nature and circumstance of the offense" of reckless homicide. The court's
comments instead suggest it was sentencing defendant as if she pleaded guilty to aggravated
DUI.
¶ 32 While the trial court stated this "was absolutely a deterrable crime and it must be
deterred," the supreme court has found deterrence to be of little significance where, as here, the
court is sentencing a defendant for an offense involving unintentional conduct. People v. Martin,
119 Ill. 2d 453, 459, 519 N.E.2d 884, 887 (1988). The court also stated, "a sentence of probation
would deprecate the seriousness of the offense." However, again the court's comments suggest it
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was referring to aggravated DUI and not reckless homicide. The record also shows the court
never considered probation as an option in this case. Further, the seriousness of the offense in
question, i.e., recklessly making a right turn on wet gravel and causing the ATV to tip over,
would not be deprecated by a community-based sentence.
¶ 33 The trial court's comments also showed it ignored the "history, character and
condition" of this defendant as well as her rehabilitative potential. The overwhelming amount of
evidence presented in mitigation in this case, including the testimony at sentencing, showed
defendant was a good nurse who lacked reckless tendencies. The evidence also demonstrated a
great deal of rehabilitative potential. Defendant was 24 years old at the time of the offense. She
had never previously been convicted of a criminal offense and had only two prior minor traffic
violations. The significance of the State's position, as well as the victim-impact statements from
Annie's family members, particularly her parents, cannot be overstated. The record does not
demonstrate defendant had a problem with drugs or alcohol and the evidence presented by the
State did not indicate the accident was the direct result of alcohol use. Defendant also provided
for the needs of her 20-month-old son. Defendant had both family and community support. The
information before the court provided little indication of any need to incarcerate defendant to
protect the public.
¶ 34 Although the trial court was required to consider "the nature and circumstance of
the offense" and "the history, character and condition of the offender," the court did not reference
the specific facts of this case at sentencing. Indeed, an examination of the record as a whole
raises questions on which offense the court was actually imposing sentence. For example, in
rejecting the initial negotiated plea, the trial court emphasized it could not ignore the public
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policy of the aggravated DUI statute, which required a sentence of 3 to 14 years in prison unless
extraordinary circumstances required probation. See 625 ILCS 5/11-501(d)(2)(G) (West 2012)).
However, as stated, the proposed plea in this case was for the offense of reckless homicide. As
part of the agreement, the aggravated DUI counts were to be dismissed. (Those counts were
ultimately dismissed as part of the plea the court accepted.)
¶ 35 The trial court also appeared to be sentencing defendant as if she had been
convicted of aggravated DUI when it compared her case to prior cases. The court stated, "I tried
to come up with a number in my mind of defendants that I have sentenced as a result of either a
death or great bodily harm from the result of drinking." (Emphasis added.) The court
specifically referenced one case, stating, "there was an agreed plea within the last couple weeks
in this courtroom *** for a sentence of six years to the Department of Corrections for a
Champaign firefighter whose life has been utterly and completely ruined by someone who made
the choice to drink and drive." As defendant points out, the case referenced by the court was
People v. Paquin (Champaign County case No. 13-CF-1751) (hereinafter, Paquin). Not only are
the court's comments regarding that case confusing, but the defendant in Paquin was sentenced
for an aggravated DUI conviction and not a reckless homicide offense. "[A] proper sentence
must be based upon the particular facts and circumstances of each individual case." People v.
Jeter, 247 Ill. App. 3d 120, 130, 616 N.E.2d 1256, 1264 (1993). A sentencing court cannot
compare one criminal case to another unless "all of the facts" are "substantially identical," which
"will rarely, if ever, occur." (Emphases omitted.) People v. Bien, 277 Ill. App. 3d 744, 755, 661
N.E.2d 511, 519 (1996).
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¶ 36 The trial court's comments at sentencing also demonstrate a predisposition against
probation for certain types of offenders. However, a trial judge "may not refuse to consider an
alternative [sentence] simply because the defendant is in a class disfavored by the court." People
v. Jones, 284 Ill. App. 3d 975, 980, 673 N.E.2d 456, 459 (1996). The court's rejection of the
original plea points to a predisposition against probation. The court's comments at sentencing
also imply if an offender drinks and drives and kills someone that offender will not receive
probation regardless of how the offense is charged and without regard for the specific facts of the
case. Such a position results in an arbitrary denial of probation and frustrates the intent of the
legislature to provide for a range of sentencing possibilities under the Unified Code. See People
v. Bolyard, 61 Ill. 2d 583, 587, 338 N.E.2d 168, 170 (1975) (where the record shows the trial
judge denied probation because the defendant fell within the judge's category of disfavored
offenders, the defendant is entitled to a new sentencing hearing).
¶ 37 Finally, it is well established a trial court may not consider a factor inherent in an
offense as an aggravating factor in sentencing. See Martin, 119 Ill. 2d at 459-60, 519 N.E.2d at
887; People v. Saldivar, 113 Ill. 2d 256, 271-72, 497 N.E.2d 1138, 1144 (1986); People v.
Conover, 84 Ill. 2d 400, 404, 419 N.E.2d 906, 908 (1981). In fact, a trial court abuses its
discretion in sentencing when it relies on an element of an offense as a factor in aggravation.
See Conover, 84 Ill. 2d at 404-05, 419 N.E.2d at 908-09. This is because it is reasonable to
presume the legislature already considered the factor in establishing the penalty for the offense.
Conover, 84 Ill. 2d at 405, 419 N.E.2d at 909. Had the legislature intended the victim's death to
be considered a second time, it would have clearly so stated. See Martin, 119 Ill. 2d at 460, 519
N.E.2d at 887 (citing Saldivar, 113 Ill. 2d at 267-68, 497 N.E.2d at 1142).
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¶ 38 "In determining whether the trial court based the sentence on proper aggravating
and mitigating factors, a court of review should consider the record as a whole, rather than
focusing on a few words or statements by the trial court." People v. Dowding, 388 Ill. App. 3d
936, 943, 904 N.E.2d 1022, 1028 (2009). In Saldivar, the supreme court held the trial court
erred in sentencing the defendant for voluntary manslaughter when it considered in aggravation
the defendant's conduct threatened serious harm to the victim, because "the circuit court focused
primarily on the end result of the defendant's conduct, i.e., the death of the victim, a factor which
is implicit in the offense." Saldivar, 113 Ill. 2d at 272, 497 N.E.2d at 1144. Similarly in Martin,
the supreme court concluded the trial court improperly considered the victim's death as an
aggravating factor where, before imposing sentence, it stated, " 'in committing the felony
[(involuntary manslaughter)] the defendant inflicted serious bodily injury to another resulting in
death.' " Martin, 119 Ill. 2d at 461, 519 N.E.2d at 888.
¶ 39 In this case, the trial court's comments at sentencing show it imposed a greater
sentence because defendant's actions resulted in Annie's death. In sentencing defendant the trial
court emphasized, "[i]f you make the choice to drink and drive and you kill someone *** you
will face the consequences of your actions in this court." The court also stated it "tried to come
up with a number *** of defendants [it]sentenced as a result of either a death or great bodily
injury." The court stated, "defendant made the choice to drive" and "as a result of those actions,
someone died." According to the court, "it's not a mitigating factor that a family member died."
The court also clearly included Annie's death as part of its "clarion message" in imposing
defendant's sentence for reckless homicide. Thus, the court did more than merely mention
Annie's death in passing. It clearly focused on her death in sentencing defendant. Doing so was
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error. See Dowding, 388 Ill. App. 3d at 943, 904 N.E.2d at 1029 (the trial court may not
consider the end result, i.e., the victim's death, as a factor in aggravation where death is implicit
in the offense).
¶ 40 A reviewing court is empowered under Illinois Supreme Court Rule 615(b)(4) (eff.
Jan. 1, 1967) to reduce a sentence where, as here, the trial court abused its discretion in
sentencing a defendant. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353 (1991);
People v. Alexander, 239 Ill. 2d 205, 212, 940 N.E.2d 1062, 1065-66 (2010); People v. Clark,
374 Ill. App. 3d 50, 75, 869 N.E.2d 1019, 1042 (2007). In light of the circumstances presented
in this case and under the authority of Rule 615(b)(4), we reduce defendant's sentence to
probation. We remand the matter to the trial court with directions to impose appropriate
conditions of probation and to withdraw and amend the sentencing judgment accordingly. In
view of the comments made by the court at sentencing, we conclude, to remove any suggestion
of unfairness, this case should be assigned to a different judge on remand. See People v. Heider,
231 Ill. 2d 1, 25, 896 N.E.2d 239, 253 (2008) (citing People v. Dameron, 196 Ill. 2d 156, 179,
751 N.E.2d 1111, 1125 (2001)).
¶ 41 B. Fines and Fees
¶ 42 In addition to conceding defendant's position on appeal, the State argues this court
should vacate fines improperly imposed by the circuit clerk and remand to the trial court for
those fines to be reimposed. See People v. Montag, 2014 IL App (4th) 120993, ¶ 37, 5 N.E.3d
246. The trial court did not mention any fines at sentencing and the May 16, 2014, docket entry
indicates a "Cost Only Fee" of $2,912. Thereafter, a number of fines were imposed by the circuit
clerk. In light of our holding in this case, we vacate all fines and remand for their reimposition.
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We admonish the trial court to impose mandatory fines, as the circuit clerk lacks any authority to
do so. Montag, 2014 IL App (4th) 120993, ¶ 37, 5 N.E.3d 246; People v. Larue, 2014 IL App
(4th) 120595, ¶ 56, 10 N.E.3d 959 ("fines imposed by the circuit clerk are void from their
inception").
¶ 43 The State also notes, although defendant was given two days' sentence credit for
the time she spent in custody prior to sentencing, she did not receive any monetary credit for that
time against her fines. Pursuant to section 110-14 of the Code of Criminal Procedure of 1963
(725 ILCS 5/110-14(a) (West 2012)), defendant is entitled to two days' credit ($5 per day for a
total credit of $10) against her creditable fines for time served in presentence detention. Thus,
two days' monetary credit should be given to defendant upon remand.
¶ 44 III. CONCLUSION
¶ 45 For the reasons stated, we (1) reduce defendant's sentence to probation, (2) remand
for the imposition of appropriate conditions of probation before a different judge, (3) vacate all
fines, (4) remand for the trial court to impose fines mandated by statute in effect at the time of
the offense, (5) award defendant two days' monetary credit against creditable fines for time spent
in presentence custody, and (6) order the issuance of an amended sentencing judgment so
reflecting.
¶ 46 Sentence reduced; cause remanded with directions.
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