                                        2016 IL App (3d) 130511

                                 Opinion filed June 13, 2016
     ____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2016

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 10th Judicial Circuit,
                                                     )       Peoria County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-13-0511
            v.                                       )       Circuit No. 10-CF-500
                                                     )
     DOMINICK M. SANDERS,                            )       Honorable
                                                     )       Kevin Lyons,
            Defendant-Appellant.                     )       Judge, Presiding.
     ____________________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court with opinion.
           Presiding Justice O'Brien and Justice Carter concurred in the judgment and opinion.
     ____________________________________________________________________________

                                                OPINION

¶1          A jury found the defendant, Dominick M. Sanders, guilty of first degree murder (720

     ILCS 5/9-1(a)(1) (West 2010)), aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1)

     (West 2010)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(1) (West 2010)),

     aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2010)), and unlawful

     possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)). After a hearing, the trial

     court sentenced the defendant to 45 years' imprisonment for first degree murder, plus a 25-year

     firearm enhancement, and a consecutive term of 25 years' imprisonment for aggravated battery

     with a firearm. The court also sentenced the defendant to concurrent terms of 10 years'
     imprisonment for aggravated discharge of a firearm and 7 years' imprisonment for aggravated

     unlawful use of a weapon. 1 No sentence was entered on the unlawful possession of a weapon by

     a felon count.

¶2          On appeal, the defendant argues that: (1) the trial court erred when it considered a factor

     inherent in the offense during sentencing, overemphasized the defendant's nonviolent criminal

     history, and failed to consider the defendant's relative youth during sentencing; and (2) his DNA

     fee must be vacated because his DNA was previously registered, and his cost assessments are

     subject to multiple errors.

¶3                                                  FACTS

¶4          The evidence at the defendant's jury trial showed that Nick Renfro and his brother,

     Davon, got into an argument with Willie Wilson and a second individual named "Willard" or

     "Willis." The argument escalated into a physical altercation. After the fight, Nick's and Davon's

     mother, Joyce Renfro, got into an argument with a woman named "Patrice" who was the mother

     of Wilson's child. Patrice summoned the defendant who came out of a nearby apartment. The

     defendant was dressed in black and started shooting an automatic firearm. Nick pushed Joyce

     into her apartment, and Joyce received a gunshot wound to the leg. Nick was shot in the back

     and died on the way to the hospital. A forensic pathologist testified that Nick had received

     several gunshot wounds, the most significant of which was one to the back of the upper right

     shoulder. The fragments of the round struck Nick's right lung, aorta, and esophagus and caused

     massive bleeding.



            1
                On appeal, the defendant does not challenge his sentences for aggravated discharge of a

     firearm and aggravated unlawful use of a weapon.


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¶5          The jury found the defendant guilty of all of the charges and that the defendant had

     personally discharged a firearm that proximately caused the death of another person. Thereafter,

     the cause proceeded to a sentencing hearing.

¶6          After the parties presented their arguments on the sentencing alternatives, the trial court

     considered the factors in aggravation and mitigation. In aggravation the trial court stated:

                      "[A]mong other things, the defendant's conduct did cause or threaten serious

                      harm. It may be inherent in the actual fact that he committed a murder, but it did

                      occur, and that the defendant has a history of prior delinquency of criminal

                      activity. And that the sentence is necessary to deter others from committing the

                      same crime, and that the defendant was convicted of a felony while he was

                      serving a period of probation."

     In mitigation, the court said that it had "a hard time to find anything." The court sentenced the

     defendant to 45 years' imprisonment for first degree murder, plus an additional 25-year firearm

     enhancement, and a consecutive term of 25 years' imprisonment for aggravated battery with a

     firearm. The trial court also sentenced the defendant to concurrent terms of 10 years'

     imprisonment for aggravated discharge of a firearm and 7 years' imprisonment for aggravated

     unlawful use of a weapon. No sentence was entered on the unlawful possession of a weapon by

     a felon count.

¶7          The defendant filed a motion to reconsider sentence arguing that he did not have a history

     of significant criminal activity that would justify such a long sentence and he had a strong

     possibility of rehabilitation given his young age. After a hearing, the court denied the

     defendant's motion. The defendant filed a notice of appeal.




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¶8            On July 20, 2015, we affirmed the defendant's prison sentence, vacated his DNA fee and

       the remaining costs and remanded the cause with directions for the trial court to expressly

       impose any and all fines and the circuit clerk to specifically impose all fees in a written order.

       Subsequently, the defendant filed a petition for rehearing arguing that our affirmance of his

       prison sentences was in error because, under People v. Martin, 119 Ill. 2d 453, 458-60 (1988),

       the consideration of a factor inherent in the offense is reversible under the second prong of the

       plain error analysis. We granted rehearing.

¶9                                                  ANALYSIS

¶ 10                                                 I. Sentence

¶ 11          The defendant argues that the trial court improperly considered a factor inherent in the

       offense of first degree murder, while sentencing the defendant. Specifically, the court found that

       the defendant's conduct caused or threatened serious harm. The defendant acknowledges that he

       did not properly preserve this issue for appellate review, but contends that it is reversible under

       the second prong of the plain error doctrine. 2

¶ 12          To overcome a claim of forfeiture, we must determine whether the alleged errors can be

       reviewed under the plain error doctrine. The first step in a plain error analysis is to determine

       whether a "plain error" occurred. People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). "The

       word 'plain' here is synonymous with 'clear' and is the equivalent of 'obvious.' " Id. at 565 n.2.

¶ 13          Generally, a trial court may not consider as an aggravating factor in sentencing a fact that

       is inherent in the offense with which the defendant was charged. People v. Thomas, 171 Ill. 2d

       207, 226-27 (1996). This rule is not meant to apply rigidly because public policy dictates that a

              2
                  The defendant does not argue that this issue may be reversed under the first prong of the

       plain error doctrine.


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       sentence be varied in accordance with the circumstances of the offense. People v. Cain, 221 Ill.

       App. 3d 574, 575 (1991). The court may consider the nature and circumstances of an offense,

       including the nature and extent of each element of the offense as committed by the defendant.

       People v. James, 255 Ill. App. 3d 516, 532 (1993). The cause must be remanded for

       resentencing where a reviewing court is unable to determine the weight given to an improper

       factor. People v. Beals, 162 Ill. 2d 497, 509 (1994). Remand is unnecessary where a reviewing

       court can determine from the record that the trial court placed insignificant weight upon the

       improper aggravating factor. Id. at 509-10.

¶ 14           Here, the trial court expressly stated, in aggravation, that the defendant's conduct did

       cause harm and acknowledged that this fact was inherent in the offense of murder, but reasserted

       that the conduct "did occur." Supra ¶ 6. Because the court noted this improper factor,

       acknowledged that it was inherent in the offense, and then indicated that it was still considering

       the factor in aggravation, we find that the court erroneously gave improper weight to the double

       enhancing factor.

¶ 15           The defendant argues that the court's error was reversible under the second prong of the

       plain error doctrine because consideration of an improper factor in aggravation affected his

       fundamental right to liberty. Our supreme court has equated the second prong of the plain error

       doctrine with structural error. People v. Thompson, 238 Ill. 2d 598, 613-14 (2010). Under this

       analysis, "automatic reversal is only required where an error is deemed 'structural,' i.e., a

       systemic error which serves to 'erode the integrity of the judicial process and undermine the

       fairness of the defendant's trial.' " People v. Glasper, 234 Ill. 2d 173, 197-98 (2009) (quoting

       People v. Herron, 215 Ill. 2d 167, 186 (2005)). The Thompson court noted that "[t]he Supreme

       Court has recognized an error as ' "structural" ' only in a ' "very limited class of cases." ' "


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       Thompson, 238 Ill. 2d at 609 (citing Glasper, 234 Ill. 2d at 198, quoting Neder v. United States,

       527 U.S. 1, 8 (1999); quoting Johnson v. United States, 520 U.S. 461, 468 (1997)). "Those cases

       include a complete denial of counsel, trial before a biased judge, racial discrimination in the

       selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a

       defective reasonable doubt instruction." Id. (citing Washington v. Recuenco, 548 U.S. 212, 218

       n.2 (2006).

¶ 16           In our original order, we applied the Thompson structural error language as a strict

       limitation on the categories of plain error that are reversible under the second prong. We then

       concluded that consideration of a factor inherent in the charged offense was not one of these

       select errors. However, since our decision, the supreme court clarified that "although [its]

       decisions in Glasper and Thompson equated second-prong plain error with structural error, [it]

       did not restrict plain error to the types of structural error that have been recognized by the

       Supreme Court." People v. Clark, 2016 IL 118845, ¶ 46.

¶ 17           In light of Clark, the defendant argues on rehearing that the consideration of a factor

       inherent in the charged offense is reversible under the second prong. See Martin, 119 Ill. 2d at

       458-60. In Martin, our supreme court found that both prongs of the plain error doctrine applied

       to this issue. Id. Regarding the second prong, the supreme court noted that:

                       "[t]he trial judge's consideration of the fact that the defendant's conduct caused

                       serious harm to [the victim], resulting in his death, as a factor in aggravation in

                       sentencing clearly affected the defendant's fundamental right to liberty (see

                       Ingraham v. Wright, 430 U.S. 651, 674-74 (1977)) and impinged on her right not

                       to be sentenced based on improper factors (see People v. Conover, 84 Ill. 2d 400,

                       405 (1981) (sentence based on improper factors will not be affirmed unless the


                                                           6
                      court can determine from the record that the weight placed on the improperly

                      considered aggravating factor was so insignificant that it did not lead to a greater

                      sentence))." Id. at 458.

       We find that the Martin rationale controls the outcome of this case. Specifically, the trial court's

       express finding that the defendant's conduct caused or threatened serious harm, a factor inherent

       in the offense of first degree murder, impinged on the defendant's right not to be sentenced based

       on an improper factor and affected his fundamental right to liberty. See id. Therefore, we

       reverse the defendant's sentence under the second prong of the plain error analysis, and we

       remand the cause for resentencing.

¶ 18                                             II. Fines and Fees

¶ 19          The defendant raises two issues with regard to the imposition of his fines and fees. First,

       the court erroneously imposed a DNA analysis fee when the defendant was previously subject to

       the fee because of his prior felony conviction. See People v. Marshall, 242 Ill. 2d 285, 303

       (2011). Second, the case payment sheet includes several errors, which includes the omission of

       his $5-per-day presentence incarceration credit. We find that our resolution of the first issue has

       rendered these cost issues moot. However, on remand, we note that the defendant should not be

       subject to the DNA analysis fee as the record establishes that his DNA was previously recorded.

       See id. We further order that all fines and fees imposed shall comply with the following

       directions: (1) the trial court shall expressly impose any and all fines; (2) the circuit clerk may

       impose any individual fee or court cost; (3) the amount of each fine, fee, assessment or court cost

       the defendant has been ordered to pay as part of the sentence shall be set forth in a written order

       bearing the court's signature; (4) the written order shall provide the statutory authority for each




                                                         7
       individual financial charge; and (5) the trial court shall calculate and offset the defendant's fines

       by the appropriate amount of $5-per-day presentence incarceration credit.

¶ 20                                             CONCLUSION

¶ 21          The judgment of the circuit court of Peoria County is reversed and remanded with

       directions.

¶ 22          Reversed and remanded with directions.




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