                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Hambrick, 2012 IL App (3d) 110113




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     BARBARA HAMBRICK, Defendant-Appellant.



District & No.              Third District
                            Docket No. 3-11-0113


Filed                       July 24, 2012


Held                        The three-year prison term imposed for aggravated driving while under
(Note: This syllabus        the influence of alcohol that resulted in the death of the passenger in
constitutes no part of      defendant’s car was upheld, despite defendant’s contention that
the opinion of the court    extraordinary circumstances warranted probation.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Kankakee County, No. 08-CF-436; the
Review                      Hon. Clark E. Erickson, Judge, presiding.



Judgment                    Affirmed.
Counsel on                 Bryon Kohut, of State Appellate Defender’s Office, of Ottawa, for
Appeal                     appellant.

                           John J. Boyd, State’s Attorney, of Kankakee (Terry A. Mertel and Nadia
                           L. Chaudhry, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE CARTER delivered the judgment of the court, with opinion.
                           Justices McDade and Wright concurred in the judgment and opinion.



                                             OPINION

¶1          After a jury trial, the defendant, Barbara Hambrick, was found guilty of two counts of
        aggravated driving while under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(F)
        (West 2008)). The trial court merged count II into count I and sentenced the defendant to
        three years’ imprisonment. The defendant appeals her sentence, arguing that the trial court:
        (1) applied the wrong legal standard in sentencing; and (2) abused its discretion in sentencing
        her to a prison term when extraordinary circumstances required a sentence of probation. For
        the following reasons, we affirm.

¶2                                               FACTS
¶3          On July 11, 2008, the defendant was charged by indictment with two counts of
        aggravated DUI. The case proceeded to a jury trial, which ended in a mistrial. In November
        2010, the case was called for a second jury trial. The trial evidence showed that on August
        22, 2007, the defendant had consumed between three and eight shots of alcohol and part of
        a mixed drink at Heather’s Tap in Kankakee. The defendant testified that she and the victim,
        Greg Kirkton, left Heather’s Tap around 9 p.m. to return to her farm in Manteno, where the
        victim rented a room.
¶4          The defendant testified that during the trip, the victim allegedly began speaking of his
        deceased wife and attempted to jump out of the car. The defendant and the victim were
        traveling in a convertible, with the top down, and the victim purportedly grabbed the steering
        wheel while trying to climb out of the moving car. The defendant next remembered that the
        car veered off the road and struck an embankment. The force of the collision ejected the
        victim from the car. The Kankakee County coroner testified that the victim died from neck
        injuries sustained in the accident.
¶5          Immediately after the accident, the defendant was transported to the hospital where her
        injuries were treated. A hospital blood draw indicated that the defendant had a blood alcohol
        content of 0.137.


                                                  -2-
¶6         The jury found the defendant guilty of two counts of aggravated DUI.
¶7         On January 7, 2011, the case proceeded to a sentencing hearing. At the hearing, the State
       introduced evidence of the defendant’s driving abstract, which only contained the statutory
       summary suspension and revocation related to this case. Teryn Robinson, the victim’s niece,
       read a victim impact statement. Robinson felt that the defendant was responsible for the
       victim’s death and did not believe the defendant’s testimony that the victim was acting
       suicidal. She did not plead for a particular punishment but trusted that the court would set
       an appropriate sentence.
¶8         Defense counsel began its case with a letter from the defendant’s daughter, Amelia Ann
       Brodie. In the letter, Brodie stated that the defendant was a loving person who cared for her
       five daughters while she maintained a prosperous business. Brodie was concerned that a
       harsh sentence would cause her family financial hardship and have a grave impact on her
       younger siblings, who were 9 and 10 years old. Brodie noted that the girls had lost their
       father in 2003.
¶9         Wanda Christenson testified that she was the defendant’s mother and that she was very
       close to the defendant, who was helping her during her cancer treatment. Wanda stated that
       she and her husband would do their best to take care of the defendant’s minor children, but
       that it would be difficult because of her cancer treatment and her husband’s age. At the time,
       Wanda was 75 years old and her husband was 80 years old. Wanda noted that she and her
       husband were not in a position to financially maintain the family farm. Wanda stated that
       there were three houses on the farm and that she and her husband occupied one house.
       Ashley Christenson, the defendant’s oldest daughter, and her eight-year-old son lived in the
       second house, and Wanda’s son and his family lived in the third house.
¶ 10       Following Wanda’s testimony, Ashley read a prepared statement to the court. In the
       statement, she expressed concern that a prison sentence would traumatize her two younger
       siblings, who lost their father in 2003. Ashley said that she, too, was dependant on the
       defendant for financial support because she was a single mother who was pregnant with
       twins and she had an eight-year-old son. As a result of her high-risk pregnancy, Ashley could
       not work full time and would be out of work for several months after she gave birth. Ashley
       pleaded for her mother to receive a sentence of probation, as a prison sentence would
       negatively impact her entire family.
¶ 11       The defendant read a prepared statement to the court in which she apologized for the
       suffering that she had caused her family and the victim’s family. She reemphasized that her
       children had already lost their father and that she had moved off the family farm so that her
       parents could financially provide for her brother. During arguments, defense counsel stated
       that the defendant would not be entitled to receive social security payments, resulting from
       her husband’s death, while imprisoned.
¶ 12       On January 14, 2011, the case was called for the pronouncement of the defendant’s
       sentence. The court merged the defendant’s two aggravated DUI counts into a single count.
       The court first determined whether extraordinary circumstances existed to justify a sentence
       of probation, as otherwise the only sentence available under the statute was a term of
       imprisonment. The court admitted that a prison sentence would entail hardship, but it did not


                                                -3-
       find that extraordinary circumstances existed to justify a sentence of probation. The court
       reasoned that the defendant had a large extended family to support the defendant’s minor
       children and that the children would continue to receive social security payments while the
       defendant was incarcerated, so long as the payee was changed from the defendant to the
       children. As a result, it did not “find as a matter of law, upon reviewing the circumstances
       *** that extraordinary circumstances *** exist which require *** probation.”
¶ 13       In sentencing the defendant, the court considered the factors in mitigation and
       aggravation. In particular, the court noted that the defendant did not have a prior criminal
       record, but it felt that a prison sentence was necessary for deterrence. However, the court
       acknowledged that a sentence of more than three years would entail excessive hardship to
       the defendant’s dependents. Therefore, the court sentenced the defendant to three years in
       prison.
¶ 14       On January 20, 2011, the defendant filed a motion to reconsider her sentence. The court
       found that although a prison sentence posed a significant harm to the defendant’s family, it
       did not “as a matter of law” find that the defendant’s circumstances rose to the level of
       extraordinary circumstances which required probation. The court denied the defendant’s
       motion and restated its hope that her sentence would have a deterrent effect. The defendant
       filed a notice of appeal.

¶ 15                                        ANALYSIS
¶ 16                                     I. Legal Standard
¶ 17       On appeal, the defendant first argues that the trial court applied an incorrect legal
       standard in sentencing. During sentencing, and at the motion to reconsider, the court stated
       that it did not “find as a matter of law” that extraordinary circumstances existed. The
       defendant argues that the determination of whether to impose a period of probation was
       discretionary and not a purely legal decision in which no discretion is exercised. See People
       v. Winningham, 391 Ill. App. 3d 476 (2009). As a result, the defendant asks that we review
       the present case de novo because the trial court failed to exercise its discretion. See People
       v. Newborn, 379 Ill. App. 3d 240 (2008).
¶ 18       In response, the State contends that the defendant misconstrues the court’s statement and
       the correct standard of review is an abuse of discretion. People v. Stacey, 193 Ill. 2d 203
       (2000). We agree. Despite the court’s misstatements, we find that it exercised discretion in
       reviewing the evidence and pronouncing the defendant’s sentence. Therefore we review the
       case for an abuse of discretion.

¶ 19                                   II. Abuse of Discretion
¶ 20       The defendant next argues that the trial court abused its discretion in sentencing her to
       a prison term when extraordinary circumstances required a sentence of probation. The
       defendant contends that the nature of the offense and the character of the offender did not
       warrant a prison sentence and that her extended family did not have the ability or the
       financial means to care for her two minor daughters and her older daughter, Ashley, who was


                                                -4-
       financially dependent on her. As a result, the defendant asks that we vacate her sentence and
       remand the matter for resentencing.
¶ 21        Initially, we note that the defendant was convicted of aggravated DUI, a Class 2 felony.
       625 ILCS 5/11-501(d)(2)(G) (West 2008). This conviction carries a sentence of “not less
       than 3 years and not more than 14 years if the violation resulted in the death of one person”
       unless the trial court “determines that extraordinary circumstances exist and require
       probation.” 625 ILCS 5/11-501(d)(2)(G) (West 2008). The plain language of the statute
       creates the presumption that a convicted defendant shall serve a term of imprisonment. 625
       ILCS 5/11-501(d)(2)(G) (West 2008); see also People v. Vasquez, 2012 IL App (2d) 101132
       (not released for publication as of July 20, 2012). However, a trial court may override this
       presumption when it determines, in its discretion, that “extraordinary circumstances” require
       probation. Vasquez, 2012 IL App (2d) 101132. The legislature intended for the
       “extraordinary circumstances” language to limit the discretion of a trial court to impose a
       sentence of probation. See People v. Maldonado, 386 Ill. App. 3d 964 (2008).
¶ 22        We may not alter a sentence unless the trial court abused its discretion, i.e., the sentence
       is “ ‘greatly at variance with the spirit and purpose of the law, or manifestly disproportionate
       to the nature of the offense.’ ” People v. Alexander, 239 Ill. 2d 205, 212 (2010) (quoting
       People v. Stacey, 193 Ill. 2d 203, 210 (2000)). A trial court’s sentencing decision is entitled
       to great deference, and we may not substitute our judgment for the trial court’s merely
       because we might have weighed the sentencing factors differently. Alexander, 239 Ill. 2d
       205. In the instant case, we cannot conclude that the trial court abused its discretion.
¶ 23        We note, as did the trial court, that any prison sentence entails hardship to the defendant
       and the defendant’s family. We agree that the defendant’s circumstances, although tragic, did
       not rise to the level of “extraordinary circumstances,” as envisioned by the legislature to
       justify a sentence of probation. Although the legislature did not define the precise boundaries
       of “extraordinary circumstances,” it intended that a trial court exercise its discretion to
       override the presumption of incarceration only in limited circumstances. See Vasquez, 2012
       IL App (2d) 101132. In the present case, a sentence of probation would deprecate the
       seriousness of the offense. Moreover, we agree with the trial court that the harm to the
       defendant’s dependent daughters is limited because her extended family is in a position to
       care for her children while she is incarcerated, and that her minor daughters will continue to
       receive financial support from their social security payments.
¶ 24        Finally, we note that the trial court explicitly addressed the factors in mitigation and
       aggravation, and it concluded that a sentence of three years’ imprisonment would have a
       deterrent effect and minimize the hardship posed to the defendant’s family. Based on the
       foregoing, we find that the trial court’s sentence was not an abuse of discretion.

¶ 25                                    CONCLUSION
¶ 26       For the foregoing reasons, the judgment of the circuit court of Kankakee County is
       affirmed.

¶ 27       Affirmed.

                                                 -5-
