                                  Illinois Official Reports

                                          Appellate Court



                              People v. Daly, 2014 IL App (4th) 140624



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      KATHERYN J. DALY, Defendant-Appellant.


District & No.               Fourth District
                             Docket No. 4-14-0624


Filed                        December 1, 2014


Held                         The trial court abused its discretion in sentencing defendant to 3½
(Note: This syllabus         years in prison for reckless homicide based on the death of her
constitutes no part of the   19-year-old cousin in an accident that occurred when the all-terrain
opinion of the court but     vehicle defendant was driving around her family’s rural property with
has been prepared by the     her cousin as a passenger slipped on gravel and overturned, since the
Reporter of Decisions        record showed that although defendant admitted she drank alcohol
for the convenience of       earlier in the evening, there was no evidence she was intoxicated, she
the reader.)                 had no criminal history, she had great rehabilitative potential, the State
                             agreed to a guilty plea and a sentence to probation, and the evidence in
                             mitigation was overwhelming, but the trial court’s comments showed
                             that defendant’s history, character, and rehabilitative potential were
                             ignored; therefore, defendant’s sentence was reduced to probation, the
                             cause was remanded to a different judge for the imposition of
                             conditions of probation, all fines were vacated, and the cause was
                             remanded for the imposition of the mandated fines in effect at the time
                             of the offense, defendant was awarded two days’ monetary credit
                             against her creditable fines for her presentence incarceration, and an
                             amended sentencing order was directed to issue.


Decision Under               Appeal from the Circuit Court of Champaign County, No.
Review                       13-CF-1853; the Hon. Richard P. Klaus, Judge, presiding.
     Judgment                 Sentence reduced; cause remanded with directions.


     Counsel on               Mark D. Lipton, of Meyer Capel, of Champaign, for appellant.
     Appeal
                              Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                              Robinson, and Linda Susan McClain, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.



     Panel                    PRESIDING JUSTICE POPE delivered the judgment of the court,
                              with opinion.
                              Justices Knecht and Turner concurred in the judgment and opinion.


                                               OPINION


¶1         In March 2014, defendant, Katheryn J. Daly, entered an open plea of guilty to one count of
       reckless homicide (720 ILCS 5/9-3(a) (West 2012)). In May 2014, the trial court sentenced
       defendant to 3½ years in prison. Defendant appeals, arguing the court abused its discretion in
       rejecting probation, which was requested by defendant and recommended by the State, and
       sentencing defendant to 3½ years’ imprisonment. On appeal, the State concedes the court
       abused its discretion. We reduce defendant’s sentence and remand with directions.

¶2                                           I. BACKGROUND
¶3         In the early hours of October 6, 2013, following a family birthday party, defendant, then 24
       years old, was driving four relatives around the family’s rural property on a John Deere Gator,
       which is an all-terrain-style vehicle (ATV). Seated next to defendant was her 19-year-old
       cousin, Annie Daly. Defendant made a right turn, and the ATV skidded on wet gravel and
       overturned. Annie fell off the ATV, suffered internal injuries, and later died. Defendant
       admitted drinking alcohol earlier in the evening.
¶4         On November 7, 2013, the State charged defendant with two counts of aggravated driving
       under the influence of alcohol (aggravated DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2012)).
       At the March 20, 2014, pretrial conference, defendant advised the trial court she had reached a
       plea agreement with the State and requested a plea date. The court stated it would “not continue
       [the case] past today’s date.” According to the court, defendant’s only choices were to either
       enter a plea that day or go to trial at 1 p.m. on March 31, 2014. The following exchange then
       took place:
                   “MR. LIPTON [(defendant’s trial counsel)]: We have–and I was trying to tell the
               Court that we have a plea agreement and we didn’t want to do it today because we don’t
               have all the materials to present to the Court. It could be [ready] next week.


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                 THE COURT: I’m not here next week, Mr. Lipton. The choices are a plea today or
             March 31 at 1:00 o’clock for trial.
                 MR. LIPTON: March 31, Judge.
                 THE COURT: Cause is allotted on the trial setting March 31 at 1:00 o’clock.
                 MR. LIPTON: I’m sorry. 1:00 o’clock?
                 THE COURT: 1:00 o’clock, Mr. Lipton, and it is set for trial that date. I will expect
             the parties to be ready for trial that date.
                 MR. LIPTON: Is the Court saying that the Court will not accept a plea agreement
             that day?
                 THE COURT: Mr. Lipton, what I am saying is now that it is set for trial you will
             plead open or you will go to trial on March 31.”
     The court then agreed with counsel’s request to take up the matter again at the end of that day’s
     call.
¶5       At the end of the March 20, 2014, trial call, Julia Rietz, the Champaign County State’s
     Attorney, appeared personally and requested the court set a plea date. Rietz advised the
     victim’s family members wanted to read victim-impact statements to the court but were not
     prepared that day to do so. The following exchange then took place:
                 “THE COURT: The question is why aren’t they prepared.
                 MS. RIETZ: Because they’re not.
                 THE COURT: Ms.–
                 MS. RIETZ: I can’t–
                 THE COURT: –Rietz–
                 MS. RIETZ: –They haven’t–
                 THE COURT: –two pre-trials in a row and you were not present. Both of those
             pre-trials I informed your attorney and Mr. Lipton that I would not continue this case
             past today’s date. Two pre-trials in a row. Sixty days.
                 Why?
                 MS. RIETZ: Because they are not prepared to proceed today.
                 THE COURT: Are they here?
                 MS. RIETZ: They are here, your Honor.
                 THE COURT: Then they can make an oral statement to the Court today.
                 MS. RIETZ: Your Honor, they’re not prepared to proceed today; and we’re asking
             the Court to set it for a plea date.
                 THE COURT: Mr. Lipton, your continuance would be to tomorrow at 9:00 o’clock.
             Otherwise it’s a plea today. Otherwise it’s open on the date of trial or [a] trial.”
¶6       The next morning, the State and defendant presented a negotiated plea agreement whereby
     defendant would plead guilty to one newly charged count of reckless homicide (count III) in
     exchange for the dismissal of the two aggravated DUI counts (counts I and II) and the State’s
     sentencing recommendation of 30 months’ probation and 180 days in jail, to be served on
     electronic house detention. The State offered the following factual basis for the plea:
                 “Your [H]onor, on Sunday, October 6 of 2013[,] at approximately 3:00 o’clock in
             the morning deputies were called out to the intersection of 600 and 1700E in Philo

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             regarding an accident with injuries. When they arrived there, they found Annie Daly
             age[ ] 19 who had suffered injuries. Katie Daly, the Defendant was present. She had
             performed [cardiopulmonary resuscitation (CPR)] on Annie and had revived her. She
             admitted that she had been driving the family’s [ATV] with Annie in the front seat and
             three other relatives in the backseat on the family property. They were traveling
             to–back from a bonfire after a family birthday party. When they approached the
             intersection, she turned right and skidded on some wet gravel overturning the [ATV]
             into the ditch. Annie fell out of the [ATV]. She suffered internal injuries. Later in the
             night at [the hospital] she died [from] those injuries. The defendant admitted to
             having–drinking alcohol earlier that evening and that the individuals in the [ATV] were
             not wearing seatbelts at the time they were driving.”
¶7       The trial court then rejected the plea agreement, emphasizing the public policy of the
     aggravated DUI statute required a defendant to serve a period of incarceration. Specifically,
     the court stated the following:
                  “Counsel, she’s now charged with a third count and you’re asking me to accept the
             plea to the third count for probation. You can’t ignore the public policy embedded in
             the statute for which she is charged in Count I [(aggravated DUI)]. Public policy and
             the law that’s embedded in the statute indicates that unless the Court determines that
             extraordinary circumstances exist and require probation the Defendant shall be
             sentenced–shall be sentenced to serve a period of incarceration in the Illinois
             Department of Corrections between 3 and 14 years. The Court does not concur in this
             sentence.
                  The cause is allotted for trial on March 31 at 1:00 o’clock.” (Emphasis added.)
¶8       At the beginning of the March 31, 2014, hearing, counsel for defendant stated he “assumed
     the court was intent on its position of no negotiated plea,” noting “the court had previously
     stated that today was either an open plea or trial.” The trial court responded in the affirmative.
     Defendant then entered an open plea of guilty to one count of reckless homicide in exchange
     for the dismissal of the two aggravated DUI counts. The State noted it did not object to impact
     incarceration if a term of years was imposed.
¶9       The State offered the following factual basis for the plea:
                  “You [H]onor, if this case were called for trial, the evidence would be that on
             Sunday, October 6, 2013, at approximately 3:00 in the morning deputies were called
             out to the intersection of 1600 and 1700E in Philo regarding an accident with injuries.
                  When they arrived there they found Annie Daly, age 19, who had suffered injuries.
             Defendant, Katie Daly, was present. She had performed CPR on Annie and had revived
             her.
                  She admitted that she had been driving the family’s [ATV] with Annie in the front
             seat and three other relatives in the backseat on the family property.
                  They were traveling back from a bonfire after a family birthday party. When they
             approached the intersection, she turned right and skidded on some wet gravel
             overturning the [ATV] into the ditch.
                  Annie fell out of the [ATV]. She suffered internal injuries and later that night at [the
             hospital] she died [from] those injuries.



                                                   -4-
                    [Defendant] admitted to having drunk alcohol earlier that evening. And the
                individuals in the [ATV] were not wearing seatbelts at the time.”
       The trial court found a factual basis shown for defendant’s plea. The court then accepted the
       plea and set the matter for sentencing.
¶ 10       The presentence investigation report (PSI) showed defendant was 24 years old, had a
       20-month-old son, lived with her son’s father, with whom she had been in a relationship for
       nine years, and had been employed as a registered nurse for the past three years. She had no
       prior criminal convictions and only two minor traffic offenses. Although she did not present a
       history of substance abuse, defendant completed a DUI risk evaluation and 10 educational
       hours. While the probation officer answered “Yes” to the “Present Offense Alcohol Related”
       form question in the PSI, the PSI did not include any specific information indicating defendant
       was intoxicated on the night in question.
¶ 11       At the May 16, 2014, sentencing hearing, the trial court stated it had considered the PSI.
       The State presented no evidence in aggravation. The State requested the victim’s family be
       allowed to read two victim-impact statements. Leo Daly, Annie’s brother, read a statement on
       behalf of the victim’s siblings. According to the statement, “the family [has] never once
       blamed [defendant] for this accident” and “taking [defendant] away from us, her family[,] and
       her son, would be heart breaking.” Leo stated, they had “lost one sibling and couldn’t stand to
       lose another.” On behalf of Annie’s siblings, Leo requested the court consider their feelings
       and allow defendant to remain with them.
¶ 12       Sue Daly, Annie’s mother, also read a statement on behalf of Annie’s parents. She noted
       defendant and Annie were friends and considered defendant “as another daughter.” Annie’s
       mother explained, “to take [defendant] away from us would be like taking another daughter
       from us.” She asked the court to be lenient and not impose a prison sentence because defendant
       “will live with this accident for the rest of her life, and the guilt she carries is punishment
       enough.”
¶ 13       Defendant presented over 200 pages of documents in mitigation. She also called nine
       witnesses to testify on her behalf. Dr. Robert Bane, an orthopedic surgeon at Carle Hospital,
       testified defendant was an excellent nurse, kind, compassionate, and very thorough. Casey
       Shroyer, a physician assistant at Carle Hospital, testified every experience she had with
       defendant had been positive and she never had a single complaint about defendant. Carmen
       Zych, an associate professor of nursing at Parkland College, testified defendant provides a
       great service to her community as a nurse. Zych added defendant “is a wonderful mother to her
       son” and putting her in prison “would just break everyone’s heart.” Gina Johnson, defendant’s
       mental-health therapist, testified defendant had absolutely expressed responsibility for her
       cousin’s death. Johnson indicated she did not see substance abuse as a problem in this case.
       Defendant suffered from post-traumatic stress disorder, was taking an antidepressant and
       antianxiety medication, and was fully engaged in counseling.
¶ 14       In her statement in allocution, defendant expressed remorse and took responsibility for her
       actions.
¶ 15       As part of its sentencing recommendation, the State explained:
                    “[Defendant] is here on a sentencing on the charge of reckless homicide, which
                carries a range of two to five years of incarceration in the Illinois Department of
                Corrections, and it is a probationable offense. As the court is well aware, the original


                                                   -5-
                 charge was aggravated driving under the influence of alcohol, and that charge required
                 that the court make a finding of extraordinary circumstances in order to enter a
                 sentence of probation. And this court in a previous hearing indicated that you could not
                 make that finding. And while I respectfully *** disagree[,] *** that finding is not
                 required for a probation sentence under this charge for the offense of reckless
                 homicide.
                     Reckless homicide has no such requirement. Under the Criminal Code, 730 ILCS
                 5/5-6-1, the law tells us that except where specifically prohibited by other provisions of
                 this code, the court shall impose a sentence of probation or conditional discharge upon
                 an offense, unless having regard to the nature and circumstances of the offense, and to
                 the history, character and condition of the offender, the court is of the opinion that, one,
                 imprisonment is necessary for the protection of the public; two, probation or
                 conditional discharge would deprecate the seriousness of the offender’s conduct and be
                 inconsistent with the ends of justice; or three, drug court is necessary for the protection
                 of the public and rehabilitation of the offender.
                     So in this case under the statute, because there is no specific prohibition otherwise,
                 the statute says the court shall impose a community-based sentence. There is no
                 requirement of incarceration. It is an option, probation is, an entirely appropriate
                 sentence based on the decisions of the legislature for this offense.”
¶ 16        According to the State, defendant’s character, attitude, and history showed she was
       unlikely to commit another crime. Defendant had no criminal history and “led a law abiding
       life.” It was the State’s opinion defendant’s criminal conduct “is absolutely unlikely” to recur.
       The State also noted defendant is likely to comply with the terms of a period of probation and
       had already completed many probation requirements on her own. Defendant had already
       completed counseling, was engaged in individual therapy, and volunteered for public service.
       She had not consumed alcohol since October 6, 2013. The State then recommended a sentence
       of probation with, if the court found it necessary, a jail term. The State contended a prison
       sentence would cause excessive hardship on defendant’s infant son. Although it hoped
       imprisonment would not be the sentence, the State indicated it had no objection to impact
       incarceration and a minimum sentence.
¶ 17        Defendant’s counsel agreed with the State’s argument and recommendation and asked the
       trial court to reconsider the terms of the original negotiated plea in light of all the information it
       now had before it. Defendant’s counsel also noted the following:
                     “[Defendant] is remorseful. She is saddened. She has suffered a loss as has her
                 entire family. She acknowledges her responsibility for that loss, and I’m asking the
                 court to try to fashion a sentence that achieves the societal ends of deterrence, without
                 throwing her in prison, which I think would be so damaging to the family, so damaging
                 to [defendant,] so damaging to [her infant son].”
¶ 18        In sentencing defendant, the trial court rejected both parties’ recommendations and alluded
       again to the public policy of the aggravated DUI statute. Specifically, the court stated the
       following:
                     “[THE COURT]: Counsel, I have considered your arguments, the defendant’s
                 exercise of her right of allocution. I have considered all of the documentary evidence
                 that has been submitted to the court. I have considered the testamentary [sic] evidence


                                                     -6-
                that has been submitted today in mitigation. I have considered the victim impact
                statements. I have considered the statutory factors in aggravation and mitigation.
                    I, too, [(addressing defendant’s trial counsel)] have spent a significant amount of
                time thinking about this case, especially since the guilty plea was entered. I have
                thought about what I have done over the last nine years, and I tried to come up with a
                number in my mind of defendants that I have sentenced as a result of either a death or
                great bodily harm from the result of drinking. And the best that I could do [was to]
                come up with a number of somewhere between fifteen and twenty individuals. The one
                that sticks most recently in my mind is the fact that within the last couple of weeks in
                this courtroom, there was an agreed plea for a sentence of six years to the Department
                of Corrections for a Champaign firefighter whose life has been utterly and completely
                ruined by someone who made the choice to drink and drive. This is not new; this is
                something I deal with every day in this courtroom.
                    I read all of the material in mitigation that you provided to the court. I started
                counting the number of times that the individuals who wrote letters described this as an
                accident. I gave up at sixty. The word accident was underlined on occasion, it was
                highlighted on occasion, it was even defined at least once. I’m not the first judge in this
                courtroom and unfortunately I will undoubtably [sic] not be the last judge in this
                courthouse to say this. This was not an accident.
                    The defendant made a choice to drink. The defendant made a choice to drive. As a
                result of those actions, someone died. It’s not an accident, it’s a crime. Under the law, it
                is not a mitigating factor that a family member died. The loss to society is the same
                whether Annie was killed by a family member or a total stranger. This is absolutely a
                deterrable crime, and it must be deterred. It is the duty of the court to see that it is
                deterred. If anything positive can come from this crime, let it be this. Let this be the
                clarion message. If you make the choice to drink and drive and you kill someone,
                regardless of your station in life, you will face the consequences of your actions in this
                court.
                    The court is of the opinion that a sentence of probation would deprecate the
                seriousness of the offense. The defendant is ordered incarcerated and the defendant is
                ordered to serve a period of incarceration of three and a half years in the Illinois
                Department of Corrections. The defendant is remanded into the custody of the sheriff
                instanter. There will be no further relief entered by the court. That is the court’s order.
                    MR. LIPTON: And no impact incarceration.
                    THE COURT: No. You are remanded into the custody of the sheriff to be
                transported to the Illinois Department of Corrections. This court is in recess.”
¶ 19        On May 30, 2014, defendant filed a motion to reconsider the sentence, arguing the trial
       court erred where (1) it improperly considered the public policy of the aggravated DUI statute;
       (2) the sentence imposed was inconsistent with the public policy of section 5-6-1 of the Unified
       Code of Corrections (Unified Code) (730 ILCS 5/5-6-1 (West 2012)), favoring a
       community-based sentence; (3) it improperly considered death and alcohol as aggravating
       factors; and (4) it was biased against defendant based on the original charges filed.
¶ 20        At the July 7, 2014, hearing on defendant’s motion, the State continued to stand on its
       argument made at sentencing. The trial court denied defendant’s motion, stating the following:


                                                     -7-
                  “As I indicated I have read the Motion to Reconsider and the motion–and the
             memorandum in support. There were extensive arguments and rulings made, and I’m
             not going to revisit those.
                  I would note for the record that it has long been the black letter law in this state that
             it is not evidence of bias by the trial court that you lose a ruling. Someone always loses
             in court.
                  The Motion to Reconsider is denied.”
¶ 21      This appeal followed.

¶ 22                                          II. ANALYSIS
¶ 23                                   A. Excessive-Sentence Claim
¶ 24        On appeal, defendant argues the trial court abused its discretion in sentencing her to 3½
       years in prison. Specifically, defendant contends the court: (1) improperly focused on the
       public policy of imprisoning individuals convicted of aggravated DUI instead of focusing on
       the public policy of community-based sentences for individuals convicted of reckless
       homicide; (2) demonstrated a predisposition against probation; (3) erred in considering the
       victim’s death as a factor in aggravation because it was an element of the offense of reckless
       homicide; (4) improperly considered alcohol as an aggravating factor where no evidence was
       presented tying alcohol to the accident in this case; (5) erred in sentencing defendant in relation
       to other cases; and (6) cannot sentence for the sole purpose of punishing a defendant.
       Defendant requests, inter alia, we reduce her sentence to probation.
¶ 25        The offense of reckless homicide is a Class 3 felony (720 ILCS 5/9-3(d)(2) (West 2012)
       punishable by a sentence of between two and five years’ imprisonment (730 ILCS 5/5-4.5-40
       (West 2012)). It is a probationable offense. The trial court’s 3½-year sentence is within the
       statutorily allowed sentencing range. However, it is not enough for the sentence to be within
       the permissible range. A sentence outside the range is void, not excessive. People v.
       Thompson, 209 Ill. 2d 19, 24, 805 N.E.2d 1200, 1203 (2004); People v. Pinkonsly, 207 Ill. 2d
       555, 569, 802 N.E.2d 236, 245 (2003). Thus, the phrase “excessive sentence” contemplates
       something else. It is reserved for a sentence within the statutory range but without regard for a
       particular defendant’s rehabilitative potential. See People v. Perruquet, 68 Ill. 2d 149, 154-55,
       368 N.E.2d 882, 884 (1977).
¶ 26        The Illinois Constitution provides penalties are to be determined both according to the
       seriousness of the offense and with the objective of restoring the offender to useful citizenship.
       Ill. Const. 1970, art. I, § 11; Perruquet, 68 Ill. 2d at 154-55, 368 N.E.2d at 884. This
       constitutional mandate calls for balancing the retributive and rehabilitative purposes of
       punishment, and the process requires careful consideration of all factors in aggravation and
       mitigation. People v. Quintana, 332 Ill. App. 3d 96, 109, 772 N.E.2d 833, 845 (2002). A
       reasoned sentence must be based on the particular circumstances of each case. Perruquet, 68
       Ill. 2d at 154, 368 N.E.2d at 884. Because of the trial court’s opportunity to assess a
       defendant’s credibility, demeanor, general moral character, mentality, social environment,
       habits, and age, deference is afforded its sentencing judgment. People v. Stacey, 193 Ill. 2d
       203, 209, 737 N.E.2d 626, 629 (2000). However, the appellate court was never meant to be a
       rubber stamp for the sentencing decisions of trial courts. A reviewing court may disturb a



                                                    -8-
       sentence within statutory limits if the trial court abused its discretion in imposing a sentence.
       Stacey, 193 Ill. 2d at 209-10, 737 N.E.2d at 629.
¶ 27       In its appellee brief, the State explicitly concedes defendant’s arguments and argues itself
       the trial court “abused its discretion in rejecting probation and sentencing defendant to
       three-and-a-half years’ imprisonment for reckless homicide” where (1) an individual convicted
       of reckless homicide should be given a community-based sentence unless certain statutory
       exceptions, not applicable in this case, apply; (2) the court demonstrated a predisposition
       against probation; (3) the court improperly considered death and alcohol as factors in
       aggravation; (4) the court erred in sentencing defendant in relation to other cases; (5) the court
       cannot sentence for the sole purpose of punishment; and (6) the court rejected the succinct
       recommendation of the prosecutor. In the alternative, the State argues, “even if this court finds
       no abuse of discretion, equity and justice require a new sentencing hearing.” (Emphases
       added.)
¶ 28       Generally, the Unified Code creates a presumption in favor of probation. People v.
       Vasquez, 2012 IL App (2d) 101132, ¶ 64, 971 N.E.2d 38 (citing 730 ILCS 5/5-6-1(a) (West
       2006)). It is undisputed defendant in this case was eligible for probation. See 730 ILCS
       5/5-5-3(c)(2) (West 2012). As the State correctly pointed out, section 5-6-1(a) of the Unified
       Code requires a sentence of probation unless the court finds a prison sentence is necessary for
       the protection of the public or if probation would deprecate the seriousness of the offender’s
       conduct. 730 ILCS 5/5-6-1(a) (West 2012). Specifically, section 5-6-1(a) provides, in relevant
       part, the following:
                     “(a) Except where specifically prohibited by other provisions of this Code, the
                [trial] court shall impose a sentence of probation or conditional discharge upon an
                offender unless, having regard to the nature and circumstance of the offense, and to the
                history, character and condition of the offender, the court is of the opinion that:
                         (1) his imprisonment or periodic imprisonment is necessary for the protection
                     of the public; or
                         (2) probation or conditional discharge would deprecate the seriousness of the
                     offender’s conduct and would be inconsistent with the ends of justice ***[.]” 730
                     ILCS 5/5-6-1(a) (West 2012).
¶ 29       In this case, the trial court stated, “a sentence of probation would deprecate the seriousness
       of the offense.” However, in making this determination, the court was statutorily required to
       consider “the nature and circumstance of the offense” and “the history, character and condition
       of the offender” in doing so. 730 ILCS 5/5-6-1(a) (West 2012). The appellate court presumes
       the trial court considered only appropriate factors in sentencing unless the record affirmatively
       shows otherwise. Quintana, 332 Ill. App. 3d at 109, 772 N.E.2d at 845.
¶ 30       Our review of the record in this case shows little to indicate the trial court considered “the
       nature and circumstance of the offense,” “the history, character and condition of the offender,”
       or defendant’s rehabilitative potential in fashioning its sentence. Instead, the record shows the
       court considered the nature and circumstances of an offense to which defendant did not plead
       guilty.
¶ 31       For example, in sentencing defendant, the trial court emphasized, “[i]f you make the choice
       to drink and drive and you kill someone *** you will face the consequences of your actions in
       this court.” The court also stated, “the defendant made a choice to drink,” “the defendant made


                                                   -9-
       a choice to drive,” and “as a result of those actions, someone died.” However, the court
       accepted defendant’s guilty plea for reckless homicide. While the evidence submitted by the
       State as its factual basis for the plea included the fact defendant “admitted to having drunk
       alcohol earlier that evening,” the factual basis offered did not state defendant was intoxicated
       or otherwise imply she drove while under the influence of alcohol. In fact, no evidence was
       presented to even suggest defendant was speeding while operating the ATV. According to the
       factual basis accepted by the court, defendant “turned right and skidded on some wet gravel
       overturning the [ATV] into the ditch.” The victim “fell out of the [ATV],” “suffered internal
       injuries,” and later that night “died [from] those injuries.” The court’s comments suggest it
       ignored “the nature and circumstance of the offense” of reckless homicide. The court’s
       comments instead suggest it was sentencing defendant as if she pleaded guilty to aggravated
       DUI.
¶ 32        While the trial court stated this “was absolutely a deterrable crime and it must be deterred,”
       the supreme court has found deterrence to be of little significance where, as here, the court is
       sentencing a defendant for an offense involving unintentional conduct. People v. Martin, 119
       Ill. 2d 453, 459, 519 N.E.2d 884, 887 (1988). The court also stated, “a sentence of probation
       would deprecate the seriousness of the offense.” However, again the court’s comments suggest
       it was referring to aggravated DUI and not reckless homicide. The record also shows the court
       never considered probation as an option in this case. Further, the seriousness of the offense in
       question, i.e., recklessly making a right turn on wet gravel and causing the ATV to tip over,
       would not be deprecated by a community-based sentence.
¶ 33        The trial court’s comments also showed it ignored the “history, character and condition” of
       this defendant as well as her rehabilitative potential. The overwhelming amount of evidence
       presented in mitigation in this case, including the testimony at sentencing, showed defendant
       was a good nurse who lacked reckless tendencies. The evidence also demonstrated a great deal
       of rehabilitative potential. Defendant was 24 years old at the time of the offense. She had never
       previously been convicted of a criminal offense and had only two prior minor traffic violations.
       The significance of the State’s position, as well as the victim-impact statements from Annie’s
       family members, particularly her parents, cannot be overstated. The record does not
       demonstrate defendant had a problem with drugs or alcohol and the evidence presented by the
       State did not indicate the accident was the direct result of alcohol use. Defendant also provided
       for the needs of her 20-month-old son. Defendant had both family and community support.
       The information before the court provided little indication of any need to incarcerate defendant
       to protect the public.
¶ 34        Although the trial court was required to consider “the nature and circumstance of the
       offense” and “the history, character and condition of the offender,” the court did not reference
       the specific facts of this case at sentencing. Indeed, an examination of the record as a whole
       raises questions on which offense the court was actually imposing sentence. For example, in
       rejecting the initial negotiated plea, the trial court emphasized it could not ignore the public
       policy of the aggravated DUI statute, which required a sentence of 3 to 14 years in prison
       unless extraordinary circumstances required probation. See 625 ILCS 5/11-501(d)(2)(G)
       (West 2012). However, as stated, the proposed plea in this case was for the offense of reckless
       homicide. As part of the agreement, the aggravated DUI counts were to be dismissed. (Those
       counts were ultimately dismissed as part of the plea the court accepted.)



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¶ 35       The trial court also appeared to be sentencing defendant as if she had been convicted of
       aggravated DUI when it compared her case to prior cases. The court stated, “I tried to come up
       with a number in my mind of defendants that I have sentenced as a result of either a death or
       great bodily harm from the result of drinking.” (Emphasis added.) The court specifically
       referenced one case, stating, “there was an agreed plea within the last couple weeks in this
       courtroom *** for a sentence of six years to the Department of Corrections for a Champaign
       firefighter whose life has been utterly and completely ruined by someone who made the choice
       to drink and drive.” As defendant points out, the case referenced by the court was People v.
       Paquin (Champaign County case No. 13-CF-1751) (hereinafter, Paquin). Not only are the
       court’s comments regarding that case confusing, but the defendant in Paquin was sentenced for
       an aggravated DUI conviction and not a reckless homicide offense. “[A] proper sentence must
       be based upon the particular facts and circumstances of each individual case.” People v. Jeter,
       247 Ill. App. 3d 120, 130, 616 N.E.2d 1256, 1264 (1993). A sentencing court cannot compare
       one criminal case to another unless “all of the facts” are “substantially identical,” which “will
       rarely, if ever, occur.” (Emphases omitted.) People v. Bien, 277 Ill. App. 3d 744, 755, 661
       N.E.2d 511, 519 (1996).
¶ 36       The trial court’s comments at sentencing also demonstrate a predisposition against
       probation for certain types of offenders. However, a trial judge “may not refuse to consider an
       alternative [sentence] simply because the defendant is in a class disfavored by the court.”
       People v. Jones, 284 Ill. App. 3d 975, 980, 673 N.E.2d 456, 459 (1996). The court’s rejection
       of the original plea points to a predisposition against probation. The court’s comments at
       sentencing also imply if an offender drinks and drives and kills someone that offender will not
       receive probation regardless of how the offense is charged and without regard for the specific
       facts of the case. Such a position results in an arbitrary denial of probation and frustrates the
       intent of the legislature to provide for a range of sentencing possibilities under the Unified
       Code. See People v. Bolyard, 61 Ill. 2d 583, 587, 338 N.E.2d 168, 170 (1975) (where the
       record shows the trial judge denied probation because the defendant fell within the judge’s
       category of disfavored offenders, the defendant is entitled to a new sentencing hearing).
¶ 37       Finally, it is well established a trial court may not consider a factor inherent in an offense as
       an aggravating factor in sentencing. See Martin, 119 Ill. 2d at 459-60, 519 N.E.2d at 887;
       People v. Saldivar, 113 Ill. 2d 256, 271-72, 497 N.E.2d 1138, 1144 (1986); People v. Conover,
       84 Ill. 2d 400, 404, 419 N.E.2d 906, 908 (1981). In fact, a trial court abuses its discretion in
       sentencing when it relies on an element of an offense as a factor in aggravation. See Conover,
       84 Ill. 2d at 404-05, 419 N.E.2d at 908-09. This is because it is reasonable to presume the
       legislature already considered the factor in establishing the penalty for the offense. Conover,
       84 Ill. 2d at 405, 419 N.E.2d at 909. Had the legislature intended the victim’s death to be
       considered a second time, it would have clearly so stated. See Martin, 119 Ill. 2d at 460, 519
       N.E.2d at 887 (citing Saldivar, 113 Ill. 2d at 267-68, 497 N.E.2d at 1142).
¶ 38       “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.” People v. Dowding, 388 Ill. App. 3d 936, 943,
       904 N.E.2d 1022, 1028 (2009). In Saldivar, the supreme court held the trial court erred in
       sentencing the defendant for voluntary manslaughter when it considered in aggravation 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


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       which is implicit in the offense.” Saldivar, 113 Ill. 2d at 272, 497 N.E.2d at 1144. Similarly in
       Martin, the supreme court concluded the trial court improperly considered the victim’s death
       as an aggravating factor where, before imposing sentence, it stated, “ ‘in committing the felony
       [(involuntary manslaughter)] the defendant inflicted serious bodily injury to another resulting
       in death.’ ” Martin, 119 Ill. 2d at 461, 519 N.E.2d at 888.
¶ 39       In this case, the trial court’s comments at sentencing show it imposed a greater sentence
       because defendant’s actions resulted in Annie’s death. In sentencing defendant the trial court
       emphasized, “[i]f you make the choice to drink and drive and you kill someone *** you will
       face the consequences of your actions in this court.” The court also stated it “tried to come up
       with a number *** of defendants [it] sentenced as a result of either a death or great bodily
       injury.” The court stated, “defendant made the choice to drive” and “as a result of those
       actions, someone died.” According to the court, “it’s not a mitigating factor that a family
       member died.” The court also clearly included Annie’s death as part of its “clarion message” in
       imposing defendant’s sentence for reckless homicide. Thus, the court did more than merely
       mention Annie’s death in passing. It clearly focused on her death in sentencing defendant.
       Doing so was error. See Dowding, 388 Ill. App. 3d at 943, 904 N.E.2d at 1029 (the trial court
       may not consider the end result, i.e., the victim’s death, as a factor in aggravation where death
       is implicit in the offense).
¶ 40       A reviewing court is empowered under Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1,
       1967) to reduce a sentence where, as here, the trial court abused its discretion in sentencing a
       defendant. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353 (1991); People v.
       Alexander, 239 Ill. 2d 205, 212, 940 N.E.2d 1062, 1065-66 (2010); People v. Clark, 374 Ill.
       App. 3d 50, 75, 869 N.E.2d 1019, 1042 (2007). In light of the circumstances presented in this
       case and under the authority of Rule 615(b)(4), we reduce defendant’s sentence to probation.
       We remand the matter to the trial court with directions to impose appropriate conditions of
       probation and to withdraw and amend the sentencing judgment accordingly. In view of the
       comments made by the court at sentencing, we conclude, to remove any suggestion of
       unfairness, this case should be assigned to a different judge on remand. See People v. Heider,
       231 Ill. 2d 1, 25, 896 N.E.2d 239, 253 (2008) (citing People v. Dameron, 196 Ill. 2d 156, 179,
       751 N.E.2d 1111, 1125 (2001)).

¶ 41                                        B. Fines and Fees
¶ 42       In addition to conceding defendant’s position on appeal, the State argues this court should
       vacate fines improperly imposed by the circuit clerk and remand to the trial court for those
       fines to be reimposed. See People v. Montag, 2014 IL App (4th) 120993, ¶ 37, 5 N.E.3d 246.
       The trial court did not mention any fines at sentencing and the May 16, 2014, docket entry
       indicates a “Cost Only Fee” of $2,912. Thereafter, a number of fines were imposed by the
       circuit clerk. In light of our holding in this case, we vacate all fines and remand for their
       reimposition. We admonish the trial court to impose mandatory fines, as the circuit clerk lacks
       any authority to do so. Montag, 2014 IL App (4th) 120993, ¶ 37, 5 N.E.3d 246; People v.
       Larue, 2014 IL App (4th) 120595, ¶ 56, 10 N.E.3d 959 (“fines imposed by the circuit clerk are
       void from their inception”).
¶ 43       The State also notes, although defendant was given two days’ sentence credit for the time
       she spent in custody prior to sentencing, she did not receive any monetary credit for that time
       against her fines. Pursuant to section 110-14 of the Code of Criminal Procedure of 1963 (725

                                                  - 12 -
       ILCS 5/110-14(a) (West 2012)), defendant is entitled to two days’ credit ($5 per day for a total
       credit of $10) against her creditable fines for time served in presentence detention. Thus, two
       days’ monetary credit should be given to defendant upon remand.

¶ 44                                        III. CONCLUSION
¶ 45       For the reasons stated, we (1) reduce defendant’s sentence to probation, (2) remand for the
       imposition of appropriate conditions of probation before a different judge, (3) vacate all fines,
       (4) remand for the trial court to impose fines mandated by statute in effect at the time of the
       offense, (5) award defendant two days’ monetary credit against creditable fines for time spent
       in presentence custody, and (6) order the issuance of an amended sentencing judgment so
       reflecting.

¶ 46      Sentence reduced; cause remanded with directions.




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