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                               Appellate Court                             Date: 2016.09.21
                                                                           10:39:57 -05'00'




                   People v. Sanders, 2016 IL App (3d) 130511



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            DOMINICK M. SANDERS, Defendant-Appellant.



District & No.     Third District
                   Docket No. 3-13-0511



Filed              June 13, 2016
Rehearing denied   July 27, 2016


Decision Under     Appeal from the Circuit Court of Peoria County, No. 10-CF-500; the
Review             Hon. Kevin Lyons, Judge, presiding.



Judgment           Reversed and remanded with directions.



Counsel on         Michael J. Pelletier and Vicki P. Kouros, both of State Appellate
Appeal             Defender’s Office, of Elgin, for appellant.

                   Jerry Brady, State’s Attorney, of Peoria (Dawn D. Duffy, of State’s
                   Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel              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 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.
¶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.”

        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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       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.
¶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 for 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 error 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
       error 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
       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



           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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       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.” Thompson,
       238 Ill. 2d at 609 (citing Glasper, 234 Ill. 2d at 198, quoting Neder v. United States, 527 U.S. 1,
       8 (1999), and citing 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 error 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
                (1977), 430 U.S. 651, 673-74 ***) and impinged on her right not to be sentenced based
                on improper factors (see People v. Conover (1981), 84 Ill. 2d 400, 405 (sentence based
                on improper factors will not be affirmed unless the 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

                                                    -4-
       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 contains several errors, including 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 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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