*1 Because we made in to deter- construe statements the evaluation mine whether defendant for treatment substance qualifies as a abuser to be similar to we presentence report, statements made in find error in the court’s aggravating use of those statements in a mitigating determination. Lake
Accordingly, judgment County of the circuit court of de- nying defendant’s motion to guilty withdraw his affirmed. plea
Affirmed. P.J.,
LINDBERG, UNVERZAGT, J., concur. ILLINOIS, THE PEOPLE OF THE STATE Plaintiff-Appellee, OF KEYES, CHRISTOPHER Defendant-Appellant.
Second No. District 2 — 87—0259 7, 1988. Opinion filed November *2 WOODWARD, J., dissenting. Carmody,
G. De- Joseph Appellate Weller and Patrick M. both of State Office, Elgin, appellant. fender’s Foreman,
Fred L. Attorney, Waukegan, State’s and J. Han- Patrick ley, Browers, Chicago (William L. Attorneys Appellate of State’s Prose- Office, counsel), People. cutor’s for the opinion
JUSTICE REINHARD delivered the of the court: Defendant, Christopher Keyes, entered a in the cir plea guilty cuit court of Lake County offense of under felony and, influence of alcohol while committing violation, being this in in motor volved vehicle great accident which resulted in harm bodily A. Cindy 95½, Hanna. Stat. Rev. 501(f).) Following hearing, defendant was sentenced to a three- *3 term of year imprisonment. Defendant raises sentencing various is sues on appeal.
At time the of defendant’s the of guilty plea, facts the stipulated offense August were on at p.m., 6:15 approximately which, defendant was the driver of a vehicle after failing stop to at a stop sign, collided a by with vehicle driven Arick Hanna in which his wife, was a front seat A Cindy, passenger. subsequent blood-alcohol test revealed blood-alcohol concentration to be .12. Defendant’s license time the suspended was the accident. Cindy Hanna suffered injuries, including lacerations, severe two fractured femurs, ankle, a fractured pelvis. and fractured Cindy pregnant was and a fetus was removed full-size stillborn a result of trauma by caused the accident.
The presentence investigation report the sen- (PSI) introduced at tencing hearing further reveals that for Cindy Hanna was hospitalized month, almost one that Cindy undergo long therapy will rehabilitative will permanent scarring and have and Arick Hanna received no injury. serious but suffer total injury, did the loss his vehicle. Two passengers other in the Hanna The injury. vehicle suffered serious PSI indicates that report injured the incurred sub- physically parties stantial medical expenses, some of which are not covered their damage Arick Hanna did not have property
own insurance. The further indicates that report the to his vehicle. PSI to cover loss emotionally to in the Hanna vehicle continue suffer persons all four from the traumatic incident. had no prior felony
The PSI also stated that defendant report convicted record. He had been juvenile previously convictions and license offenses in 1984 and 1985 and his driver’s of several traffic Defendant, single, steadily employed who is had been suspended. the as a landscaper. for the five last two past years, an The PSI further received evalua- report stated defendant Alcoholism and Substance tion from Northern Illinois Council on report, According on 1986. to the PSI (NICASA) September Abuse moderate displayed regular, indicated that defendant evaluation recom- drank to excess on occasion. NICASA drinking pattern and to defend- encourage education in order program mended remedial the evaluation to reduce his level of alcohol which consumption, ant termed problematic. Lake Services also an County Department prepared
The Court supervision evaluation. This stated probation report intensive associated normally not seem to display symptoms defendant does that, to according also problem, with a severe alcohol but stated evaluation, needs further education al- concerning NICASA defendant evaluation probation supervision cohol and its effects. intensive intensive instead placed probation recommended that defendant be penitentiary. sentenced to the being 17, 1987. The sentencing hearing was held on March Defendant’s impact and Arick Hanna’s written victim state- Cindy State submitted of Arick’s objected ments. to submission attorney Defendant’s statement, Both victim im- objection. but the trial court overruled the suffered pain statements mentioned the emotional trauma pact Cindy’s of their ánd severe couple baby as a result the loss he was not Arick’s also mentioned that injuries. statement physical compensate couple from defendant any money receive going or for loss of their car. Defendant medical Cindy’s expenses Hanna for for- that he asked hearing Cindy testified at the attorney the Hannas’ in a he was with cooperating giveness *4 against him. civil suit trial court con improperly first contends
Defendant of Arick Hanna because was impact the victim statement sidered Rights of the Bill of for statute. section 6 not authorized Under (Ill. Rev. Stat. (Act) Crime Act and Witnesses Violent Victims right 38, 1406), of violent crimes have 1987, ch. victims par.
1017 Any sentencing. victim at present impact statements consideration or is a violent DUI offense in death personal injury which results 38, 1987, par. crime Act Rev. Stat. ch. 3(c) (Ill. under section must, was a therefore, whether Arick Hanna 1403(c)). We determine victim Act. 3(a) as that term is defined in section of the states, follows: 3(a) part,
Section of the Act in relevant “ in this State (1) injured ‘Victim’ means a person physically attempted against as a result of a crime or perpetrated violent to or loss of person or a suffers (2) person injury who or at as a result of a violent crime property perpetrated *** against against tempted person (4) any person a violent crime (5) whom has been committed or any person has a personal who suffered as a result of violation of injury Code, section 11—501 of The Blinois pro Vehicle or of similar of a (Ill. 1987, 38, vision local ordinance ***.” ch. 1403(a).) par.
Sections and do not 3(a)(1) (a)(5) apply because there is no evidence in the record that Arick Hanna suffered in the acci injuries dent. 3(aX2) Sections and if (aX4) only the violent crime in apply ques tion was Hanna. perpetrated or committed Arick against The offense in question, driving under the influence of alcohol in becoming and in a volved motor vehicle great accident which causes harm to bodily (Ill. 1985, another Rev. 951/2, Stat. ch. par. only can 501(f)), perpetrated against individuals who great suffer harm bodily accident. Since Arick Hanna did not great suffer harm bodily collision, sections Act 3(aX2) (aX4) are and he inapplicable, cannot be considered a victim as term is defined in the Act.
Nevertheless, Arick right while Hanna not have had the may present Act, this statement his own under of the authority the statement actually was offered State and properly part of the presentation State’s of evidence at the sentencing hearing. (See People v. 292, 294-96, Estrella 170 Ill. 3d (1988), App. 524 707; N.E.2d see also People v. Ellzey (1988), App. Ill. 3d 511, 527 N.E.2d 1058.) State offer may relevant evidence sentencing hearing in aggravation. Rev. Stat. Arick 4—1(a)(3).) Hanna’s statement was relevant and reliable. 1005 —
While it may objectionable have been on the hearsay, basis of such made, objection was as the objection below was that Arick was not a victim, and issue not any hearsay objected to waived for review. (People 533, 542, Rink 2d In (1983), 64.) Ill. 455 N.E.2d event, the statement of Arick Hanna is similar to the substantially recitation in impact the victim of the analysis portion PSI report,
1018 is harm- in admission of the statement
any separate error the possible less. the trial court abused its discretion
Defendant next maintains that three-year the maximum sentence denying probation imposing and alco- against because the court’s comments indicate a (a) personal bias hol; the court considered and defend- (b) inappropriately emphasized court insurance; (c) give ap- ant’s lack of automobile and the failed indicating strong to the propriate weight presented potential. rehabilitative of trial at
We have reviewed the record
the
comments
judge’s
the
he
sentencing hearing and do not find that
indicate
adhered
they
imposing
to a
a maximum
policy
denying probation
sentence
the
that
affirmatively
where alcohol is involved. Where
record
shows
denied
fell
judge arbitrarily
probation
trial
because the defendant
offenders, a defendant
category
within the trial
of disfavored
judge’s
(1975),
v.
61
sentencing hearing. (People Bolyard
is entitled to a new
583,
Ill.
The
is true if the
168.)
judge
2d
338 N.E.2d
same
trial
fell
imposed
maximum sentence because a defendant
arbitrarily
Zemke
People
within the
disfavored offenders.
v.
judge’s category
624, 629,
Ill.
159
3d
The in this case reflects the trial clearly record and upon held about the effect alcohol individuals strong opinions notes, the effects of low levels of alco as defendant society, including, however, that trial indicate, hol The not record does consumption. sen imposed denied and the maximum judge automatically probation tence these mentioned the comments judge because of views. drinker in the NICASA evaluation defendant was moderate not drank to excess. trial did criticize judge who sometimes at time hear drinking during defendant’s habits Instead, driving he defendant for under the influence ing. criticized Furthermore, were of the trial comments judge’s alcohol. while some tragic results sentencing, not to the task of the serious and relevant from admonishment conduct would indicate that some of defendant’s certainly appro concerning dangers court alcohol the trial judge imposed not reflect that the The record does priate. alcohol. of his views about because maximum sentence considered judge improperly that the trial argues Defendant also insurance lack of automobile liability and defendant’s emphasized com- record that the trial did judge a sentence. The shows reaching this fact did indicate of insurance and that ment on defendant’s lack hurt, he persons might care did not about to the that defendant judge inter- defense counsel When passengers. himself and his including had not have may indigent defendant was jected if he it, responded the trial not afford he could because au- an to afford insurance, he should not be able also could not afford tomobile. im to be sentence proper as to judgment
A reasoned case. of each circumstances particular posed upon must be based 1138.) N.E.2d 113 Ill. 2d (1986), (People Saldivar factors, including the relevant many depends upon Such a judgment character, mentality, moral demeanor, general credibility, 268, 497 N.E.2d at habits, Ill. 2d environment, age. (113 social suspended his license was Here, while defendant was 1143.) factors, These insurance. liability have and he did not automobile *6 concentration, disregard indicate of alcohol with his level coupled The fact he might injure. other whom well-being persons for the insurance, under liability without drove an automobile that defendant circumstances, irresponsible could be viewed reasonably these This is well-being public. of the a lack of concern for showing character consideration of defendant’s proper, within the court’s not error. was give trial court failed to contends that the
Finally, defendant strong reha- indicating a weight presented to appropriate the.factors and inten- as the PS I recommendation report such potential, bilitative candidate that he was an showing acceptable sive evaluation probation or adult for or intensive that he had no probation probation, juvenile the inci- convictions, regret he over expressed criminal and that had however, had the PSI re- state, did that he read judge dent. factors, also these and these factors were which mentioned port, arguments. counsel’s to the court’s attention brought to defendant, obligated the trial court is not sentencing In at the each fact in evidence assign presented recite and a value to 1, 8, Ill. 3d (1987), App. v. 164 sentencing hearing. (People Halstead factor or mentions an 667.) aggravating If the trial court 517 N.E.2d mitigation factors, any that the court considered presumed it will be contrary, to the well, indication in the record evidence as absent 158 Ill. (People (1987), of the sentence. v. Ulmer length other than cited two Here, the court 148, 151, 1296.) 510 N.E.2d trial 3d App. actions the fact aggravation: factors compelling 38, 1005— 1987, ch. (Ill. harm to others Rev. Stat. caused serious committing same from and the need to deter others 3.2(a)(1) 5— crime 5—3.2(a)(7)).As rec 38, par. length than the to the other contrary, ord contains no indication the trial court consid- presume we must imposed, sentence 1020 mitigation presented.
ered the evidence Although requires the Illinois Constitution court consider a defendant’s when it potential imposes rehabilitation sentence, require give weight does not the court to more to this fac tor than to the seriousness of the offense. (People (1985), Mack 788, 793, Ill. In App. 445.) light tragic 3d 479 N.E.2d of the conse quences to the Hanna and the serious to the family injuries passen vehicle, in the there can gers question Hanna be that the offense committed serious. very defendant was We cannot that the say trial court failed to give adequate weight defendant’s rehabilitative when it sentence. The trial potential imposed did not his abuse broad discretion in the present People case. See v. Cox (1980), 82 Ill. 2d 541. N.E.2d The of the judgment circuit court of Lake County affirmed. Affirmed.
NASH, J., concurs. WOODWARD,
JUSTICE dissenting: I from the respectfully opinion. dissent It is majority unquestioned that the defendant’s conduct in- caused serious and extensive juries child; however, and the death of an in spite unborn of the rec- ommendation of the Lake County Department of Court Services that defendant placed on intensive probation, imposed court maximum sentence of three in the years penitentiary. trial court i.e., considered improper aggravation, two its own standard *7 of legal intoxication and defendant’s lack of An automobile insurance. of the court’s remarks at the analysis sentencing hearing dem- clearly onstrates that this case should be remanded to the trial court for re- sentencing.
Regarding the court’s in- imposition legal its own standards toxication, the of the are illustrative. After following portions record the defendant’s none of the attorney argued defendant exhibited arrest, indicia of intoxication at his the trial stated: judge is, “I’ll tell what and if I had to write the you my training laws, I you say, danger know what would starts at .05. .05. You what the most is? I’ll a crash course danger give you know .05, in alcohol. .06. to 6 is Did see dangerous. you ever U talking trying where are or to guys parties they busy away wall, on their against they hold their head or lean are up *** sir, a that drinks being Secondly, person to smashed. way these himself to overcome and he educates forms habits already added.) things.” (Emphasis that section 11— stated hearing, judge
Later in the the trial 951/2, of the Illinois Code 501(dX3) Vehicle re of motor vehicle accidents because 501(d)(3)) adopted the legislature He then sulting predicted from alcohol abuse. misdemeanor to sta felony would other traffic offenses from elevate in problems society. tus of the alcohol abuse our because that cigarette next mentioned advertisements judge it smoking supposedly which doctors recommended because would highways. to to near people appear cause relax used billboards judge then stated: anymore suggest- “But don’t see those ads about doctors you relax, it cause to smok- ing you smoke because will because you alcohol, it with ing thing except will kill Well same you. it, to do with but be- society. They try away we have weak marketing making cause of clamor and black public kitchen, hills, in the and in the of the we re- up privacy booze turned to the use of alcohol. And it is abused. quite candidly said disagree things
Now I with some of that have been is, our does not realize thing society about alcohol. The sad you glass your that as soon as to mouth are you first lift door And this is I frown opening danger. why upon to those in the who beverage spend alcohol business hundreds thou- *** sands of dollars for advertising encourage public consume and intoxicated. And from perhaps years become *** of remark making now some will the same judge type I cigarette] as I made about ads because about those ads [the alcohol, am that time the use of will diminish hopefully, sure affected to such a that it is a can- society point because has added.) It is spreading.” (Emphasis cer. is a sore which hearing, Later in the the trial mentioned defendant’s lack of automobile insurance and discussed the financial conse- possible He to the to defendant a DUI conviction. then returned quences insurance, subject stating of automobile as follows: legislators, “Be it the fault of the be it the fault of the courts, it the other this State does agency, or be fault of some vehicle, such insurance So ei- mandatory. not make alcohol, puts the use of or the use of ther under alcohol without who misuses into the hands of that individual weapon a potent sort of accident. it, is involved in some negligence or because through either third negligence being by yourself And the *8 But party. chose not to you have any whatsoever. That was a act voluntary by yourself. And by choosing not to insurance, have it means to me you that don’t care your- about self, you don’t care about the passengers that may be riding with you. You don’t care about the individual who you may hurt or you whose car may or damage, about the public in gen- eral. you So are creating the intention in your mind you that are saying I turn my thumb up society, street corner talk, you in a little say more stronger type of verbiage.” [sic] (Emphasis added.)
At this point, the assistant public defender representing defend- ant stated that a finding indigency had been made by court and it was possible defendant did not have insurance because he could not afford it. The trial judge then made the following state- ment:
“Well, sir, if he cannot insurance, afford that doesn’t give him the right to drive. Let me be a little more blunt. he can- If insurance, not he should not be able to to drive. afford afford He should not be able to afford that automobile.” (Emphasis added.)
The trial judge then analogized driving under the influence of al- cohol to playing with a loaded He gun. stated as follows: car, you
“When had that when you were around with- alcohol, out the use of gun was unloaded. But as soon as you alcohol, started using loaded the you gun. And load- by ing the gun, driving that car when were under the you influ- alcohol, ence of and here it was .12 of one And percent. by tak- ing car, this uninsured were you using that car as a potent weapon to around with toy a life either some form of injury *** some fatality. As soon as you through stop went sign released the you trigger gun. on that And the impact gun vehicle, was the landing bullet into the Hanna or the going through uninsured car that were you driving, hitting the Hanna car.” (Emphasis added.)
It is clear that the trial court considered sentence in light improper factors. The court’s danger (related view “the law, to alcohol) starts at .05” does not with Illinois which de comport 951/2, significant. (Ill. fines the .10 level as legally .05, 501(a)(1).) Under the trial court’s “standard” of the mal defendant, registered feasance of whose concentration blood-alcohol .12, magnified. is wrongly note, offense,
Further, at the time of instant automobile we insurance was not mandatory. stated that defendant’s *9 lack of insurance meant he did not care about passengers his public general and that defendant was “turning up thumb [his] society.” clearly considered the lack of be factor, an aggravating merely not of a factor. mitigating absence As the lack of automobile insurance is not one of the statutory set forth in section 5—5—3.2 the Unified Code of Corrections Rev. 5—3.2), Stat. court con improperly 1005 — sidered this in deciding the sentence. Neither the above-discussed factors should have entered into sentence, court’s determination of this but clearly both affected Therefore, its length. vacated, this sentence should and this case should be remanded resentencing. ILLINOIS, INC.,
WASTE MANAGEMENT Petitioner-Appellant, OF al., THE POLLUTION CONTROLBOARDet Respondents-Appellees. Second District No. 2 — 88—0212 Opinion 7, 1988. Rehearing 8, 1988. filed November denied December