§ 1.15 Sentencing

• Library: Illinois DUI and Traffic-Related Decisions (2016 Ed.)

§ 1.15 Sentencing

§ 1.15-1 Consecutive Probation Sentence Improper

People v. Brown, 196 Ill. App. 3d 1, 553 N.E.2d 110, 142 Ill. Dec. 760 (2d Dist. 1990). Defendant pled guilty to driving under the influence of alcohol in an accident involving great bodily harm (Class 4 Felony) and leaving the scene of an accident involving personal injury (Class A Misdemeanor). A trial court gave her a probationary sentence for each charge with a condition that the first six months of probation be served in the DuPage County Jail. However, the probations were to run consecutively. The appellate court ruled that pursuant to ch. 38, sec. 1005-6-2, the probationary sentences were to run concurrently and not consecutively.

§ 1.15-2 Consecutive Sentence Proper

People v. McNett, 338 Ill. App. 3d 257, 788 N.E.2d 51, 272 N.E.2d 747 (2d Dist. 2003). Defendant pleaded guilty to two felony DUI counts and a felony driving while license was revoked. Pursuant to the plea agreement, defendant received two concurrent 30-month sentences of imprisonment and a consecutive 30-month sentence of probation with the condition that defendant serve 18 months of periodic imprisonment. Defendant moved to vacate the 18 months periodic imprisonment on the grounds that the sentence was void. The trial judge reduced the periodic imprisonment to 12 months; however the rest of the sentence remained intact. Defendant appealed claiming the trial court lacked authority to impose periodic imprisonment consecutive to a prison term.

The appellate court affirmed. The court noted the purpose of structuring defendant's sentence in this way was to allow defendant to receive treatment for his alcoholism during his stay in the county jail. The appellate court also relied on People v. Wendt, 163 Ill. 2d 346 (1994). In Wendt, the Illinois Supreme Court approved a sentence in which a sentence of probation followed a sentence of prison. This is exactly what happened here. Additionally the appellate court rejected defendant's claim that sec. 5-7-8 of the Criminal Code prohibits a consecutive sentence of periodic imprisonment.

§ 1.15-3 Extended Term Prohibited

People v. Matthews, 304 Ill. App. 3d 514, 711 N.E.2d 435, 238 Ill. Dec. 332 (5th Dist. 1999). The trial judge sentenced defendant to an extended term of six years on a conviction for aggravated DUI. On appeal, the defendant claimed the plain language of the statute precluded a sentence of imprisonment beyond three years. The appellate court modified the sentence. The statute specifically stated that a person sentenced to the penitentiary for aggravated DUI would face a sentence not less than a year and not more than three years. The legislature was determined to have intended that an extended term be precluded for aggravated DUI.

§ 1.15-4 Extended Term Proper

People v. Niemeyer, 243 Ill. App. 3d 875, 612 N.E.2d 975, 184 Ill. Dec. 99 (5th Dist. 1993). Defendant was charged with felony DUI and felony driving while license is revoked. He had previously been convicted of DUI and driving while license was revoked. After a jury trial, a trial court sentenced defendant to an extended term of six years on each charge. These sentences were to run concurrently.

Defendant claimed the trial court improperly imposed the extended term because the charges had originally been enhanced from a misdemeanor to a felony. The appellate court affirmed the sentences. The extended term sentence was premised upon defendant's previous conviction for burglary (Class 2), which had occurred within 10 years of defendant's instant convictions. Relying on People v. Gonzalez, 151 Ill. 2d 79, 600 N.E.2d 1189 (1992), the appellate court determined that the defendant was eligible for the extended term sentence as long as the same prior conviction was not used both to enhance the sentence and serve as a basis for an extended term sentence.

People v. Granados, 172 Ill. 2d 358, 666 N.E.2d 1191, 217 Ill. Dec. 253 (1996). Defendant pled guilty to two charges of felony DUI and two charges of felony Driving While License was Revoked. His sentence was six years imprisonment for each felony. The appellate court found the sentences were improper. It said defendant was not subject to extended-term sentences because the felony charges were originally misdemeanor charges that were enhanced because of a prior DUI and DWLR conviction. The Illinois Supreme Court reversed, finding defendant was properly subject to an extended term sentence

People v. McCormick, 339 Ill. App. 3d 641, 791 N.E.2d 112, 274 Ill. Dec. 316 (1st Dist. 2003). Defendant was convicted of aggravated DUI arising from an accident with another vehicle that occurred on 12/17/00. Defendant's background revealed an arrest for DUI on 1/17/84 that resulted in a sentence of supervision. He was then arrested and convicted of DUI on 9/6/87, 6/21/91, and 4/31/92. He was also convicted for driving while license was suspended or revoked on 4/31/92. On 6/15/99, defendant was arrested and convicted of driving on a revoked or suspended sentence. The trial judge gave defendant an extended term of five years Illinois Department of Corrections. Defendant appealed claiming the sentence imposed was in excess of that which was provided for in section 11-501(d)(2) of the Illinois Vehicle Code.

The appellate court affirmed the extended term sentence. At the time of the accident Sec. 11-501(d)(2) provided in pertinent part:

Aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof is a Class 4 felony for which a person, if sentenced to a term of imprisonment, shall be sentenced to not less than one year and not more than 3 years for a violation of subparagraph (A), (B), or (D) of paragraph (1) of this subsection (d) and not less than one year and not more than 12 years for a violation of subparagraph (C) of paragraph (1) of this subsection (d).

The appellate court declined to follow a previous ruling by the Fifth District Appellate Court in People v. Matthews, 304 Ill. App. 3d 514, 711 N.E.2d 435 (1999). In Matthews, the court determined that sec. 11-501(d)(2) was clear and unambiguous as to what the sentencing range would be for a Class 4 violation under the Illinois Vehicle Code. The court determined the language precluded the imposition of an extended-term sentence.

The First District Appellate Court relied on the principle that if there is any ambiguity, statutes are to be read in pari materia, which means that two legislative acts that address the same subject are to be considered with reference to one another, so that they may be given harmonious effect. Thus the court read the Illinois Vehicle Code and the Uniform Code of Corrections as part of an overall sentencing scheme. The court also relied on Illinois Supreme Court decisions in People v. Granados, 172 Ill. 2d 358 (1996) and the appellate court in People v. Niemeyer, 243 Ill. App. 3d 875 (1993), where extended-term sentences were upheld on aggravated DUI charges due to prior felony convictions. Finally the appellate court noted the legislature amended § 11-501(d)(2), effective 8/17/00, deleting the language which provided that the sentence for a felony DUI conviction shall be not less than one and no more than three years. The sentence by the trial court of five years in prison was properly imposed.

People v. Fish, 381 Ill. App. 3d 906, 885 N.E.2d 1214, 319 Ill. Dec. 534 (3d Dist. 2008). Defendant had two reckless homicide convictions from a crash that occurred in 1998. Two individuals were killed. On October 1, 2005, defendant was charged with three counts of aggravated DUI and one count of DWR stemming from a traffic stop. After a jury trial, he was found guilty on all counts. At sentencing, the trial judge merged the three counts into count II, the most serious one a Class 3 felony. The defendant was sentenced to an extended term of 10 years based upon his DUI conviction when his driving privileges were revoked and he had previously been convicted for two prior DUIs in the 1980s. Defendant on appeal claimed his sentence to an extended term was improper because it was an impermissible "double enhancement" and a violation of state law.

The appellate court affirmed the sentence. When one crime is used to enhance a misdemeanor to a felony and another offense is used to impose an extended-term sentence, the extended term is proper and no improper double enhancement has occurred. In this case the two convictions for reckless homicide constituted two separate offenses and one could be used to enhance the charge from a misdemeanor to a felony and the other could be used to impose an extended term sentence. Defendant's argument that there really was only one conviction for reckless homicide because the two deaths resulted from the same conduct was rejected by the court.

§ 1.15-5 Felony Finding Proper

People v. Thompson, 328 Ill. App. 3d 360, 765 N.E.2d 1209, 262 Ill. Dec. 601 (2d Dist. 2002). Defendant was indicted for aggravated DUI on the basis of committing the offense of DUI after previously committing two or more violations of DUI. Following a bench trial, at a sentencing hearing the trial judge considered defendant's supervision on a DUI in 1983 and defendant's conviction for DUI in 1985. Defendant was sentenced to 24 months probation and a judgment of conviction and sentence was entered on the Class 4 felony. The defendant appealed claiming his conviction for the felony was improper because the State at his trial did not introduce any evidence regarding the two prior commissions of DUI. Defendant claimed the evidence only supported a conviction for misdemeanor DUI.

The appellate court affirmed the conviction finding that prior DUI offenses were not elements of the offense but were factors in aggravation that had to be proved at sentencing. Defendant here was properly notified by way of the indictment that he was charged with the felony and would be subject to enhanced sentencing...