People v. MitokPeople v. Mitok
Decision Under Review: Appeal from the Circuit Court of Will County, No. 16-CF-911; the Hon. Amy M. Bertani-Tomczak, Judge, presiding.
Judgment: Vacated. Cause remanded.
Counsel on Appeal: James E. Chadd, Peter A. Carusona, and James Wozniak, of State Appellate Defender‘s Office, of Ottawa, for appellant. James W. Glasgow, State‘s Attorney, of Joliet (Patrick Delfino, David J. Robinson, and Nicholas A. Atwood, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
OPINION
¶ 1 Defendant, John M. Mitok, appeals following his conviction for aggravated driving under the influence (DUI). He argues that the circuit court applied an improper double enhancement when the same prior felony that was an element of his offense was also considered as a predicate offense making him eligible for mandatory Class X sentencing. Thus, he argues that the court committed plain error when it sentenced him as a Class X offender rather than as a Class 2 offender. We vacate the court‘s sentence and remand for resentencing.
FACTS
¶ 2 ¶ 3 The State charged defendant by indictment with aggravated DUI (
¶ 4 Following a bench trial, the circuit court found defendant guilty of the charged offense. The presentence investigation report (PSI) prepared for defendant‘s sentencing listed defendant‘s three previous convictions for DUI: a Will County misdemeanor violation in 1987, a Cook County misdemeanor violation in 1991, and a 2015 Class 2 felony aggravated DUI in Will County. The PSI also indicated that defendant was convicted of a Class 2 felony robbery in 1994.
¶ 5 At sentencing, the State asserted that defendant was eligible for mandatory Class X sentencing based on his two prior Class 2 felony convictions. See
ANALYSIS
¶ 6 ¶ 7 On appeal, defendant contends that his subjugation to Class X sentencing represented an improper double enhancement where the same prior offense—his 2015 felony aggravated DUI was used both as an element of the charged offense and also to make him eligible for Class X sentencing. He concedes that he did not preserve the error below, but urges this court to review the issue under the rubric of plain error.
¶ 8 The first step in any plain-error analysis is to determine whether a clear, obvious, or plain error has been committed. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). If the reviewing court finds that a clear or obvious error has occurred, it is the defendant‘s burden to demonstrate that the error was prejudicial and thus reversible. See People v. Thompson, 238 Ill. 2d 598, 613 (2010). While a defendant can make this showing under the first or second prong of plain error (e.g., People v. Darr, 2018 IL App (3d) 150562, ¶¶ 49-50), only the second prong is at issue in the present case. In the context of sentencing, an error is reversible under the second prong where that error “was so egregious as to deny the defendant a fair sentencing hearing.” People v. Hillier, 237 Ill. 2d 539, 545 (2010). More generally, the second prong applies where the error committed “was so serious it affected the fairness of the trial and challenged the integrity of the judicial process.” People v. Sebby, 2017 IL 119445, ¶ 50.
¶ 9 “[A] single factor cannot be used both as an element of an offense and as a basis for imposing ‘a harsher sentence than might otherwise have been imposed.’ [Citation.] Such dual use of a single factor is often referred to as a ‘double enhancement.‘” People v. Phelps, 211 Ill. 2d 1, 11-12 (2004) (quoting People v. Gonzalez, 151 Ill. 2d 79, 84 (1992)). Our supreme court has explained that the bar on double enhancements stems from the presumption that the legislature has necessarily considered such factors in setting the appropriate range of punishment for the offense. Id. at 12.
¶ 10 In this case, the State charged defendant with aggravated DUI under section
¶ 12 In People v. Martin, 119 Ill. 2d 453, 458 (1988), our supreme court found that the consideration of a factor inherent in the offense as an aggravating factor “clearly affected the defendant‘s fundamental right to liberty.” Relying on Martin, this court found second-prong plain error based on the same improper double enhancement. People v. Sanders, 2016 IL App (3d) 130511, ¶ 17. To be sure, the type of double enhancement error committed in this case is not identical to those in Martin and Sanders. In those cases, the factor in question was improperly considered in aggravation, thus impacting the defendants’ actual sentences. Here, the fact of defendant‘s 2015 aggravated DUI conviction was used improperly to elevate the sentencing range.
¶ 13 The facts of this case, however, plainly demonstrate that this is a distinction without a difference. The circuit court stated explicitly that it saw “no reason to sentence [defendant] to anything other than the minimum” and that “[t]here is nothing necessarily aggravating about the case itself.” Thus, this is not a case where we are forced to speculate as to the impact of the circuit court‘s mistaken impression as to the sentencing range. Following the improper double enhancement, that minimum was six years’ imprisonment.
¶ 14 In reaching this result, we necessarily reject the State‘s contention that we should follow the holdings in McGath and Tatera. Those cases are actually of no help to the State‘s case. First, in McGath, the Fourth District adhered to a line of cases from that district standing for the proposition that simply alleging a violation of one‘s “fundamental right to liberty” is insufficient to bring purported sentencing errors under plain-error review. McGath, 2017 IL App (4th) 150608, ¶¶ 68-69. The McGath court reiterated that the denial of a fair sentencing hearing remained the touchstone for second-prong plain error claims at sentencing. Id. ¶ 69. McGath is wholly inapplicable to the case before us, as defendant here has properly asserted the denial of a fair sentencing hearing.
CONCLUSION
¶ 16 ¶ 17 The sentence of the circuit court of Will County is vacated and the matter is remanded.
¶ 18 Vacated.
¶ 19 Cause remanded.