Opinion
No. 2-13-0010
11-18-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN HERRERA, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Kane County.
No. 06-CF-3069
Honorable
Allen M. Anderson,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: In sentencing defendant for aggravated DUI, the trial court did not consider inherent deaths in aggravation; instead it noted those deaths (among the other tragic consequences of defendant's conduct) only in acknowledging the nature and circumstances of the offense. ¶ 2 Defendant, Martin Herrera, pleaded guilty to two counts of aggravated driving under the influence (DUI) (625 ILCS 5/11-501(a), (d)(1)(F) (West 2006)). The trial court sentenced him to 10 years in prison. Following the denial of his motion for reconsideration of his sentence, defendant timely appealed. On appeal, defendant argues that, in imposing sentence, the trial court improperly considered in aggravation the deaths of the victims. He asks that we reduce his sentence to the minimum six-year term. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 On October 2, 2009, defendant pleaded guilty to two counts of aggravated DUI. The factual basis for the plea established the following. At approximately 7:30 p.m., on August 26, 2006, defendant was driving his 1993 Chevy Blazer north over the High Street bridge in Aurora. The bridge was two lanes, one in each direction, divided by a double yellow line. Defendant's blood alcohol content was .096. At the same time, a 1996 Ford Contour was headed south over the bridge. Inside the Contour were four females, all members of the same family. Twenty-five-year-old Rebecca Wilkinson was driving; Rebecca's mother, Bonnie Wilkinson, was sitting in the middle front seat; and Bonnie's mother, 80-year-old Margaret, was sitting next to Bonnie. Rebecca's three-year-old daughter, Elena, was sitting in the back seat. ¶ 5 As defendant's vehicle crossed the bridge, it veered out of the northbound lane, crossed the double yellow line, and struck the Contour head on, causing extensive damage to both vehicles. All three front seat passengers in the Contour were injured. Margaret suffered injuries to her leg and was treated at the hospital. Bonnie was taken from the scene unconscious and treated for head and brain injuries. Bonnie never regained consciousness, and, on January 15, 2008, she was removed from life support. Rebecca suffered a broken arm, several broken ribs, and multiple lacerations to her body, including a severe laceration to her right knee. Rebecca was discharged from the hospital after five days with orders for follow-up care, including surgery. While at home, Rebecca suffered a pulmonary embolism and died. ¶ 6 Defendant agreed to the factual basis presented by the State. The trial court accepted defendant's plea and continued the matter for a sentencing hearing. ¶ 7 The following evidence was presented at the sentencing hearing. The presentence investigation report (PSI) established that defendant was 25 years old. Defendant had been born in Mexico and came to the United States in 2002. He was unmarried and had a young child. Defendant first tried alcohol at age 14. He normally drank a case of beer on weekends, and he occasionally drank during the week. Defendant had no prior criminal history, except for a traffic offense of driving without ever having been issued a license, which had arisen out of this same incident. In a written statement, he acknowledged his responsibility for DUI, although he stated that "the accident was the consequence of trying to save my life." He said that he felt "very responsible [for] having done so much harm to people who did not deserve anything bad to happening [sic] to them," and he asked for forgiveness from the family members. ¶ 8 The State submitted victim impact statements from several family members. In addition, the State presented testimony from Patricia Parker, who was Margaret's daughter, Bonnie's sister, Rebecca's aunt, and Elena's great-aunt. Parker testified that Margaret suffered "horrific injuries," including head trauma and various broken bones in her hands, arms, and legs. After spending about three months in the hospital, Margaret was transferred to a rehabilitation center, where she remained for several months, and then to an assisted-living facility, where she remained for about a year. As a result of the accident, Margaret walked with "a drop to one of her feet" and had trouble moving. She also suffered from pain at night. Parker further testified concerning Elena. According to Parker, prior to the accident, Elena's father had not been involved in Elena's life, and, after the accident, Elena came to live with Parker, where she remained for over a year. However, at some point, Elena's father took custody of Elena, and Parker had not seen her since then. ¶ 9 The State presented two stipulations concerning the injuries suffered by Bonnie and Rebecca. Bonnie had suffered from severe injuries to her brain, a fractured spine, deformity injuries to her right ankle and left knee, fractured lower legs, and facial fractures. She underwent surgeries to repair fractures. She remained in a coma for 17 months after the accident and never regained consciousness. She was treated at various hospitals, rehabilitation centers, and nursing centers until she died on January 15, 2008, at the age of 54. Rebecca had suffered from fractures to her ribs, her right arm, and her right hand. In addition, she had multiple lacerations and contusions about her body. She was discharged from the hospital on September 1, 2006. ¶ 10 Defendant testified that, on August 26, 2006, he drank about six beers at a work party. He left work and, while driving to his "wife's house," he noticed a large car with four occupants behind him. The car followed him and, when he got to High Street, he saw the front-seat passenger point a gun at him. He sped up to get away and tried to pass a truck on the High Street bridge. He remembered stepping on his brakes but remembered nothing after that. ¶ 11 Thereafter, the State argued that the only mitigating factor was the absence of a criminal history. The State asked the court to consider in aggravation the need to deter others from drinking and driving. In addition, the State emphasized the injuries suffered by both victims prior to being "wiped out" of the family. The State further noted the injuries suffered by Margaret, as testified to by Parker, and the fact that Elena was indirectly "wiped out" of the family as a result of defendant's actions. The State asked for a 14-year sentence. ¶ 12 Defendant asked that he be sentenced to probation. Defendant argued that the strongest factor in mitigation was his lack of a criminal history, which indicated that he would be likely to comply with probation. Defendant further argued that his character and attitude indicated that he would be unlikely to commit another crime and that the criminal conduct was the result of circumstances unlikely to recur. Defendant noted that the fact that he pleaded guilty and expressed his remorse weighed in his favor. Finally, defendant argued the existence of extraordinary circumstances, i.e., the fact that he had been chased by someone with a gun. ¶ 13 In allocution, defendant apologized to the victims and their family members. He stated that he "never at any moment wished to do any harm to anybody." He further stated that "[he] was only trying to save [his] life." He asked for "help to be able to leave or stop drinking alcohol." ¶ 14 Thereafter, the court ruled as follows:
"Court is required under the statute to consider factors in aggravation and mitigation, but also the court is required to consider the evidence received supporting charges, also to consider the presentence investigation, consider the financial impact of incarcerating someone in the Department of Corrections, also to consider the evidence and information offered here at today's hearing in aggravation and mitigation, to consider all argument for sentencing alternatives, to afford the defendant an opportunity to make a statement on his own behalf as well as allow the victim impact statements to be considered which are included in the presentence investigation as well as statements by those affected. These are the things that I am required to do and I have done them.¶ 15 On January 11, 2010, defendant moved for reconsideration of his sentence, arguing that the trial court failed to consider his rehabilitative potential. Defendant also argued that the sentence constituted cruel and unusual punishment. The trial court denied the motion, and defendant appealed. ¶ 16 On appeal, we vacated the trial court's order and remanded for new postplea proceedings, because defense counsel failed to strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). People v. Herrera, 2012 IL App (2d) 110009. ¶ 17 On remand, defense counsel filed a new Rule 604(d) certificate but did not file an amended motion to reconsider sentence. The matter proceeded to a hearing on the original motion. Defense counsel argued that the 10-year sentence was excessive, given defendant's lack of a criminal history and his relatively low blood alcohol level. Counsel further stated:
There are always consequences to our actions or for our failures to act responsibly and under the circumstances to consider the risk to others. All of us have this obligation within the community every day.
You, [defendant], put yourself in circumstances as to where you were. Consumption of alcohol, apparent absence of a driver's license that you can argue and claim are secondary to your actions and to the consequences of your actions that you believed that your life was in danger. And the actions you took explain, but not justify, but explain what happened here. Nevertheless, these circumstances, these choices of yours caused the death of two people and injuries to two others which brings us to this moment in time.
You are not charged with the failure to know what the future is. You are here because of your failure to avoid violating the law, a law that does not allow someone to drive while under the influence of alcohol. And that is against the law because of the risk imposed on the community for anyone who drives with impaired skills and mental processes and a factor of driving a car weighing thousands of pounds, a condition and circumstance that is already potentially dangerous and made more dangerous by the presence of alcohol and the lack of control.
There are hundreds of driving under the influence cases in this county every year. Each one of those has a potential for death or injury. Most of them don't cause death or injury but too many of them do.
You, sir, caused the death of two people who are without blame in any sense for what happened in this event. They had the right to expect others including you on the road to
follow the rules of the road, this expectation that I am afraid becomes increasingly less common given the way people drive and the circumstances that we see around us.
You have somewhat eloquently in your presentence investigation statement indicated the hole that is in your life as a result of what brings you to this court, your family, people around you and the people that you care about, but that is a consequence of your choices and your actions. You can review with those people what you did. They can choose to accept your absence. They can make adjustments to get along knowing that you will return possibly to your family and in that way will be able to soften the consequences of the loss of your family that you have suffered. But the hole to the extended Wilkinson family is huge and expands every day for the survivors and the victims, direct and indirect to your actions. Nothing you have said or could say or do will soften that loss for those people or the family members of Bonnie and Rebecca. Those family members will not be able to heal as you and your family will. There will be no return of the lost members. There will be no undoing of the pain and the consequences of what you have done. They will not have the opportunity to settle affairs, to say good-bye or I am sure in their heart of hearts wish that there would have been a delay in time or circumstances or change of plans. None of these things can happen because the past is what it is.
It is true that any sentence imposed will not change the past, will not replace what has been lost to anyone, but a sentence can and should mark the severity of the revulsion that our community has to those who are responsible for the loss and injuries to others. And a sentence must also take into fact who it is and the person who committed this act that has this consequence and that's a balancing test. The legislature has spelled out a range of
punishments and penalties and has given us the aggravation and mitigation standards to apply to that.
There are some people in this community that don't have to sit here and do this, could not imagine anything less than the maximum for the loss of life and I understand that. No matter who in the background is the individual, you take a life, more than one life, there is no floor on the jail or penalty that should be imposed.
On the other hand, there are those in the community that would say that people do suffer for their actions, this by reason of the explanation given, it was not an intentional act as much as it was one of just the circumstances at the moment and it will do no good to imprison you for a substantial period of time. I understand that as well.
In balancing the factors before me, first I do not find that extraordinary circumstances exist that would warrant probation. Of the—again, I would agree the legislature has not said what those are and they are left to the discretion of the court, but I do not find that probation would be appropriate in that I don't find that extraordinary circumstances exist. But I do find from mitigation factors that the defendant does have no history of prior delinquency or criminal activity and from the information that I have has apparently led a substantially—a substantial period of time has led a law-abiding life, at least as far as the court system is concerned.
I do not agree that these are circumstances—criminal conduct are circumstances likely—not likely to recur. While the absence of prior charges sometimes is an indicator, basis and part of the basis of this is alcohol and the use of alcohol. Secondly, I don't find that the defendant is likely to comply with the terms of a period of probation.
By way of aggravation I should say the defendant's conduct caused, threatened serious harm. It's an obvious finding that the sentence is necessary to deter others from committing the same crime and I make those findings in aggravation.
It is the sentence of this court that the defendant be sentenced to ten years in the Illinois Department of Corrections[.]"
"As we pled in our motion, considering in any way the fact that two individuals died as a result of this accident in aggravation would be improper, because those elements of the charges that [defendant] had pled guilty to, those were already considered in the special sentencing range that the legislature imposed, minimum of six years for two deaths."Counsel asked that the sentence be reduced to the minimum sentence. ¶ 18 In response, the State agreed that it would be improper for the trial court to consider the deaths of the victims but stated: "I don't think that you did that." The State emphasized that the court was free to consider the circumstances of those deaths and the pain and suffering that was caused by defendant. The State also noted that it was proper for the court to consider the impact that the offense had on the surviving family members. The State maintained that the sentence should stand. ¶ 19 The trial court denied the motion. The court agreed that it would be improper for it to consider the deaths of the two victims as a reason to increase defendant's sentence and stated, "I didn't do that." The court further stated, "I did consider all that I heard. I did take into account the relative lack of criminal history." The court held, "In weighing these various factors, I am not able to change the sentence." ¶ 20 Defendant timely appealed.
¶ 21 II. ANALYSIS
¶ 22 Defendant argues that the trial court, in sentencing him, improperly considered in aggravation the deaths of the victims, which were inherent in the offense of aggravated DUI. In response, the State argues that defendant has forfeited his argument, because he failed to raise the issue in his motion for reconsideration of his sentence. In the alternative, the State argues that the trial court's comments concerning the deaths of the victims were proper, as they related to only the seriousness of the offense. ¶ 23 We first consider whether defendant has forfeited the issue. Defendant concedes that he did not object to the trial court's alleged consideration of the improper aggravating factor at sentencing or raise the issue in his postsentencing motion. See People v. Hillier, 237 Ill. 2d 539, 544 (2010) (to preserve a claim of sentencing error, the defendant must object at the sentencing hearing and raise the objection in a postsentencing motion). Nevertheless, he argues that it would be unjust to apply forfeiture in this case. We agree with defendant. At the hearing on the motion to reconsider sentence that took place on remand, defense counsel asserted (wrongly) that the motion included the allegation that the trial court had improperly considered in aggravation the deaths of the victims. The State made no objection. Instead, the State responded to defendant's argument, and the trial court addressed the issue. As the claim was brought to the court's attention, argued by the parties, and ruled upon by the court, it would be unjust to apply forfeiture here. See People v. Cervantes, 2013 IL App (2d) 110191, ¶ 21 ("[I]t would be unjust to enforce any forfeiture here, because the trial court gave the State adequate time to respond to defendant's oral argument on his posttrial motion, and the issue was fully presented to the trial court."). ¶ 24 We next address the parties' dispute over our standard of review. Defendant claims that we review the court's sentencing decision de novo, whereas the State claims that we review the decision for an abuse of discretion. It is well settled that "[i]mposition of a sentence is normally within a trial court's discretion [citation], and there is a strong presumption that the trial court based its sentencing determination on proper legal reasoning, such that the trial court's sentencing decision is reviewed with great deference." People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. However, as we noted in Abdelhadi, " the question of whether a court relied on an improper factor in imposing a sentence ultimately presents a question of law to be reviewed de novo." Id. "The burden is on the defendant to affirmatively establish that the sentence was based on improper considerations." People v. Dowding, 388 Ill. App. 3d 936, 943 (2009). Thus, while we afford the trial court's sentencing decision great deference, we consider de novo whether the trial court improperly relied on the victims' death as an aggravating factor. ¶ 25 We turn now to the merits. At the time of the offense, a person committed the offense of aggravated DUI when he violated subsection (a) of Section 11-501 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11-501(a) (West 2006)) by driving while under the influence and, while doing so, "was involved in a motor vehicle *** accident that resulted in the death of another person, when the violation of subsection (a) was a proximate cause of the death." 625 ILCS 5/11-501(d)(1)(F) (West 2006). When the violation resulted in the death of two or more persons, aggravated DUI was classified as a Class 2 felony with a sentencing range of 6 to 28 years. 625 ILCS 5/11-501(d)(2) (West 2006). According to defendant, because the deaths of the victims were inherent in the offense to which he pled guilty, it was error for the court to consider the deaths in aggravation when imposing a sentence four years higher than the minimum allowed. ¶ 26 It is well established that the trial court may not consider a factor inherent in an offense as an aggravating factor in sentencing. See People v. Martin, 119 Ill. 2d 453, 459-60 (1988); People v. Saldivar, 113 Ill. 2d 256, 271 (1986); People v. Conover, 84 Ill. 2d 400, 404 (1981). This is because it is reasonable to presume that the legislature already considered the factor in establishing the penalty for the offense. Conover, 84 Ill. 2d at 405. However, " '[t]he rule that a court may not consider a factor inherent in the offense is not meant to be applied rigidly, because sound public policy dictates that a sentence be varied in accordance with the circumstances of the offense.' " People v. Spicer, 379 Ill. App. 3d 441, 468 (2007) (quoting People v. Cain, 221 Ill. App. 3d 574, 575 (1991)). "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." Dowding, 388 Ill. App. 3d at 943. ¶ 27 Defendant maintains that the trial court's "extensive remarks regarding the loss of Rebecca and Bonnie" established that the court relied on the deaths in aggravation. We disagree. Looking at the record as a whole, it is clear that the court's comments went only to the nature and circumstances of the offense. The deceased were two women from the same family, who suffered serious injuries prior to their deaths. In addition, a third family member was also seriously injured. Numerous victim impact statements were submitted to the court. "[I]t is unrealistic to suggest that the judge in sentencing the defendant must avoid mentioning the fact that someone has died or risk committing reversible error." People v. Green, 209 Ill. App. 3d 233, 248 (1991). Thus, the injuries and losses suffered here deserved acknowledgment. To be sure, "where the trial court expressly states that it was considering the death of the victim, the court errs." People v. McClellan, 232 Ill. App. 3d 990, 1011 (1992). For instance, in Green, the court found that the trial court erred by improperly considering the death of the victim when it stated during sentencing, " 'I am taking into consideration how your conduct caused serious harm, it caused serious harm, the worst possible loss to the victim of the murder, her life was taken.' " Green, 209 Ill. App. 3d at 248. Here, however, the court made no express statement that it was considering the deaths of the victims in aggravation. ¶ 28 Also instructive are Saldivar, Martin, and Dowding. In Saldivar, the supreme court held that the trial court erred in considering, as a factor in aggravation, that 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. In considering the factors in aggravation, the trial court stated: " 'The number one factor in aggravation—there are some that come to a lesser degree, but the one that is probably the most serious is the terrible harm that was caused to the victim. And the victim is dead today.' " Id. In Martin, the supreme court concluded that the trial court improperly considered the victim's death as an aggravating factor where the court, before imposing sentence, stated, " 'in committing the felony [involuntary manslaughter] the defendant inflicted serious bodily injury to another resulting in death.' " Martin, 119 Ill. 2d at 461. In addition, the court added the words " 'resulting in death' " to the signed document indicating the aggravating factors that it considered in imposing the sentence. Id. In Dowding, this court found that the trial court erred in considering the victim's death as an aggravating factor in sentencing the defendant for aggravated DUI, based on the following statement by the trial court: " 'The factors in aggravation that I do find apply in this case are, Number 1, that the defendant's conduct caused or threatened serious harm. No question, this defendant's conduct in this offense caused the greatest harm there could be, that is the death of another person.' " Dowding, 388 Ill. App. 3d at 943. ¶ 29 Again, here, unlike in Saldivar, Martin, and Dowding, the trial court did not specifically identify the victims' deaths as an aggravating factor. In sentencing defendant, the court stated: "By way of aggravation I should say the defendant's conduct caused, threatened serious harm. It's an obvious finding that the sentence is necessary to deter others from committing the same crime and I make those findings in aggravation." Contrary to defendant's claim, this comment does not affirmatively establish that the court considered the end result of the victims' deaths in aggravation. As the State suggests, the court's comment more likely related to the serious injuries suffered by Margaret than to the deaths of the victims. The court was well aware of the circumstances of the offense and the extensive injuries suffered not only by Bonnie and Rebecca but also by Margaret. Parker testified at the sentencing hearing concerning the "horrific injuries" suffered by her elderly mother. The State asked the court to consider the injuries to Margaret in aggravation. ¶ 30 In any event, even if we were to conclude that the trial court's comments were ambiguous, the matter was resolved when defendant raised the issue at the hearing on his motion for reconsideration of his sentence. Our decision in People v. Malin, 359 Ill. App. 3d 257 (2005), is instructive. In Malin, the record showed that the trial court improperly referred to the victims' deaths in imposing sentence. Id. at 260. When the issue was raised at the hearing on the defendant's motion for reconsideration of his sentence, the trial court clarified that the only factor in aggravation that it had considered was the need to deter others from committing similar crimes. Id. at 261. We held that, based on these clarifying comments, it was apparent that the court did not consider the inappropriate factor. Id. at 264. So too here. In denying defendant's motion to reconsider, the trial court agreed that it would have been improper to consider the two deaths as a reason to increase defendant's sentence and stated, "I didn't do that." Given the fact that the trial court had the opportunity to clarify whether it had considered the deaths in aggravation and its express assurance that it did not do so, we find no error.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the judgment of the circuit court of Kane County. ¶ 33 Affirmed.