                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                            People v. Hill, 2012 IL App (5th) 100536




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ROSS ADAM HILL, Defendant-Appellant.



District & No.             Fifth District
                           Docket No. 5-10-0536


Rule 23 Order filed        April 11, 2012
Motion to publish
granted                    May 2, 2012


Held                       Defendant’s four-year sentence for aggravated driving under the influence
(Note: This syllabus       that resulted in the death of a passenger in defendant’s vehicle was
constitutes no part of     affirmed over defendant’s contentions that the provision of the statute
the opinion of the court   allowing probation for such a conviction only when “extraordinary
but has been prepared      circumstances” are found is unconstitutionally vague and that the trial
by the Reporter of         court abused its discretion in finding no “extraordinary circumstances” in
Decisions for the          his case, since defendant failed to rebut the presumption that the statute
convenience of the         was constitutional and the trial court did not abuse its discretion in
reader.)
                           assessing the circumstances.


Decision Under             Appeal from the Circuit Court of Williamson County, No. 07-CF-332;
Review                     the Hon. John Speroni, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Johannah B. Weber, and Lawrence J. O’Neill, all of
Appeal                     State Appellate Defender’s Office, of Mt. Vernon, for appellant.

                           Charles Garnati, State’s Attorney, of Marion (Patrick Delfino, Stephen E.
                           Norris, and Sharon Shanahan, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
                           Presiding Justice Donovan and Justice Spomer concurred in the judgment
                           and opinion.



                                              OPINION

¶1          Defendant appeals from the four-year sentence on his conviction for aggravated driving
        under the influence. Probation for a conviction is only allowable when extraordinary
        circumstances are found. 625 ILCS 5/11-501(d)(2)(G) (West 2008). On appeal, defendant
        contends that the term “extraordinary circumstances” is unconstitutionally vague. Defendant
        alternatively argues that the trial court’s application of the statute was improper, because the
        evidence he presented at his sentencing hearing warranted probation.

¶2                                              FACTS
¶3          On July 16, 2007, defendant and two of his friends, Broady Harding and Greg Wyatt,
        were drinking beer at Greg Wyatt’s home. Between 11 p.m. and midnight, after he finished
        his work shift, Justin Dodd went to Wyatt’s home. According to defendant, Justin Dodd
        advised the men that he had argued with his father, and he wanted to start drinking. However,
        Justin did not want to stay at Greg’s home. He allegedly suggested that the men go for a ride,
        buy beer, and drink while driving around. Both Broady Harding and Greg Wyatt confirmed
        in testimony at the sentencing hearing that Justin Dodd wanted to drink alcohol and that he
        offered to pay for gas and to buy the beer. The record on appeal is unclear about how many
        people were with defendant in the vehicle that night. Defendant, Justin Dodd, and Greg
        Wyatt were in the vehicle. Whether Broady Harding and an individual simply identified as
        Carly were present in the vehicle is not clear from the record. Defendant was driving the
        vehicle. That night, while drinking and driving, defendant lost control of the vehicle and the
        vehicle rolled over. Defendant claims that he swerved to avoid a deer and went off the road.
        At the hospital that night, defendant was told that the accident resulted in the loss of Justin
        Dodd’s life.
¶4          On August 10, 2007, the State filed its information charging defendant with the offense
        of aggravated driving under the influence of alcohol in violation of section 11-501(d)(1)(F)
        of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(1)(F) (West 2006)).

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¶5         Defendant entered into an open guilty plea on September 22, 2008.
¶6         The presentence investigation revealed no past criminal history, but a fairly large number
       of traffic violations.
¶7         At sentencing on January 23, 2009, defendant advanced his argument in mitigation that
       the victim, Justin Dodd, induced or facilitated defendant’s conduct–in that Justin Dodd asked
       to drive around while drinking and went so far as to pay for the gasoline and the beer in order
       to accomplish that goal. At the conclusion of the sentencing hearing, the court took the
       matter under advisement. On January 30, 2009, the trial court sentenced defendant to four
       years after concluding that no extraordinary circumstances existed that would require or
       support a sentence of probation. Defendant’s motion to reconsider this sentence was denied
       by the trial court on April 1, 2009.
¶8         On appeal to this court, we vacated the denial of defendant’s motion to reconsider his
       sentence because the court did not comply with Illinois Supreme Court Rule 604(d) (eff. July
       1, 2006). People v. Hill, No. 5-09-0189 (2010) (unpublished summary order under Illinois
       Supreme Court Rule 23(c)(2) (eff. May 30, 2008)).
¶9         On remand to the trial court, defendant filed a new motion to reconsider sentence on
       September 13, 2010. The motion was argued on October 26, 2010, and the court took the
       motion under advisement. On October 29, 2010, the trial court denied the motion.
¶ 10       Defendant appeals.

¶ 11                                   LAW AND ANALYSIS
¶ 12                            Statute Is Unconstitutionally Vague
¶ 13        Defendant argues that the term “extraordinary circumstances” is impermissibly and
       unconstitutionally vague.
¶ 14        Statutory language is presumptively constitutional. People v. Waid, 221 Ill. 2d 464, 480,
       851 N.E.2d 1210, 1219 (2006). The burden to rebut this presumption of constitutionality lies
       with the party challenging the validity of the statute. People v. Greco, 204 Ill. 2d 400, 406,
       790 N.E.2d 846, 851 (2003). We review the constitutionality of a statute on a de novo basis.
       People v. Fisher, 184 Ill. 2d 441, 448, 705 N.E.2d 67, 71-72 (1998).
¶ 15        Due process mandates that criminal statutes have clear definitions. People v. Maness, 191
       Ill. 2d 478, 483, 732 N.E.2d 545, 549 (2000). Ambiguity in a criminal statute must be
       resolved in a manner favoring the accused. People v. Jones, 223 Ill. 2d 569, 581, 861 N.E.2d
       967, 975 (2006). If a sentencing provision fails to sufficiently clarify the consequences of
       violating a criminal statute, the sentencing provision can be found to be void for vagueness.
       See People v. Taher, 329 Ill. App. 3d 1007, 1015-16, 769 N.E.2d 1021, 1027-28 (2002). In
       order to pass a test for vagueness, it is important for guidelines to be set that govern the
       statute’s enforcement. Kolender v. Lawson, 461 U.S. 352, 358 (1983).
¶ 16        The precise language of section 11-501 of the Illinois Vehicle Code states:
                “(d) Aggravated driving under the influence of alcohol, other drug or drugs, or
            intoxicating compound or compounds, or any combination thereof.
                                                ***

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                  (2) ***
                                                 ***
                    (G) A violation *** of this subsection (d) is a Class 2 felony, for which the
                defendant, unless the court determines that extraordinary circumstances exist and
                require probation, shall be sentenced to: (i) a term of imprisonment of not less than
                3 years and not more than 14 years if the violation resulted in the death of one
                person[.]” 625 ILCS 5/11-501(d)(2)(G) (West 2008).
¶ 17       Defendant contends that the term “extraordinary circumstances” is unconstitutionally
       vague, but the Illinois Appellate Court in People v. Winningham, 391 Ill. App. 3d 476, 909
       N.E.2d 363 (2009), has ruled on the constitutionality of the term and held that the term is not
       vague. We turn to this case.
¶ 18       The factual background and application of the sentencing statute in People v.
       Winningham are strikingly similar to this case. Derek Winningham was involved in a motor
       vehicle accident that resulted in the death of one person. Id. at 477, 909 N.E.2d at 365. As
       a result of the accident, Winningham was charged with aggravated driving under the
       influence. Id. In an open plea, Winningham pled guilty. Id. at 478, 909 N.E.2d at 365. At
       sentencing, the court learned that Winningham had no criminal history, was employed as a
       firefighter and had saved numerous lives while working in that capacity, had completed
       alcohol counseling, and had expressed extreme remorse and regret that his actions led to the
       death of the victim. Id., 909 N.E.2d at 366. Evidence was also introduced that Winningham
       was assisting the victim’s family in the dramshop civil action against the tavern where he had
       been drinking. Id. Additionally, his attorney introduced between 80 and 90 letters at
       sentencing from family, friends, and fellow firefighters describing Winningham’s positive
       impact on their lives. Id. at 479, 909 N.E.2d at 366. Winningham asked the court to find that
       his assistance with the dramshop suit amounted to extraordinary circumstances warranting
       a sentence of probation. Id. The trial court found that while Winningham had been assisting
       the victim’s family, this assistance did not rise to an extraordinary level. Id. Winningham was
       sentenced to a three-year term of imprisonment. Id.
¶ 19       Winningham did not argue that the statute impacted his first amendment rights.
       Accordingly, the court explained that when a statute does not impact first amendment
       freedoms, the statute will not be held to be unconstitutionally vague on its face unless the
       statute is incapable of any valid application–“unless under no set of circumstances would the
       statute be valid.” Id. at 481, 909 N.E.2d at 368 (citing People v. Izzo, 195 Ill. 2d 109, 112,
       745 N.E.2d 548, 551 (2001)).
¶ 20       The court explained that by arguing that the term “extraordinary circumstances” is
       undefined and subject to arbitrary application, Winningham was unavoidably conceding that
       the statute could be validly applied in some situations–even if on occasion the statute’s
       application was arbitrary. Id. An uncertain application of the sentencing statute was not the
       definitive test for vagueness. Id. Therefore, the court rejected Winningham’s argument that
       the use of the “extraordinary circumstances” term rendered the sentencing statute
       unconstitutionally vague on its face.
¶ 21       Winningham next argued that the sentencing statute was unconstitutionally vague

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       because it is subject to arbitrary and discriminatory application. Id. The appellate court stated
       as follows:
            “A statute satisfies due process if ‘(1) the statute’s prohibitions are sufficiently definite,
            when measured by common understanding and practices, to give a person of ordinary
            intelligence fair warning as to what conduct is prohibited; and (2) the statute marks
            boundaries sufficiently distinct for judges and juries to administer the law fairly in
            accordance with the intent of the legislature.’ ” Id. at 482, 909 N.E.2d at 368 (quoting
            People v. Ramos, 316 Ill. App. 3d 18, 26, 735 N.E.2d 1094, 1100-01 (2000)).
       Contrary to Winningham’s argument that the term was vague because the legislature
       neglected to define the term, the court explained that the Illinois Vehicle Code provided
       clear, definite standards for a trial court to fairly administer the law. Id. at 483, 909 N.E.2d
       at 369. The legislature recognized the fact that there would be certain factual scenarios where
       the sentence range of 3 to 14 years would not be appropriate–that in those circumstances,
       probation would be more appropriate. Id.
            “Thus, as a matter of legislative grace and lenity, the General Assembly determined that
            it would not entirely eliminate the trial court’s discretion to impose a sentence of
            probation. However, the General Assembly also determined that a court may do so only
            under extraordinary circumstances, which is entirely consistent with the great danger that
            drunk drivers impose upon our society, as shown by the tragic circumstances of this very
            case. Thus, the challenged provision’s clear purpose was to substantially limit the
            discretion that a trial court possesses to impose a sentence of probation when a
            defendant’s DUI offense proximately caused the death of another person.” Id. (citing
            People v. Maldonado, 386 Ill. App. 3d 964, 973, 897 N.E.2d 854, 863 (2008)).
       The fact that the legislature empowered sentencing courts with discretion in determining
       what circumstances could be considered extraordinary did not render the statute
       unconstitutionally vague. Id.
¶ 22        As pointed out by the appellate court in People v. Winningham, similar phrases in
       sentencing statutes have been upheld by our supreme court. See People v. Davis, 205 Ill. 2d
       349, 379, 793 N.E.2d 552, 570 (2002) (consideration of “ ‘any other reason’ ” in aggravation
       does not render the death-penalty statute unconstitutionally vague); People v. Williams, 192
       Ill. 2d 548, 590, 736 N.E.2d 1001, 1024 (2000) (consideration of aggravating factor of
       “ ‘cold, calculated[,] and premeditated manner’ ” does not render the death-penalty statute
       unconstitutionally vague); People v. Rissley, 165 Ill. 2d 364, 407, 651 N.E.2d 133, 153
       (1995) (jury’s consideration of nonstatutory aggravating factors does not result in an arbitrary
       imposition of the death penalty); People v. Lucas, 132 Ill. 2d 399, 444, 548 N.E.2d 1003,
       1022 (1989) (consideration of aggravating factor of “ ‘exceptionally brutal or heinous
       behavior’ ” does not render the death-penalty statute unconstitutionally vague); People v.
       McCreadie, 223 Ill. App. 3d 316, 319-20, 584 N.E.2d 839, 841 (1991) (the phrase
       “ ‘exceptionally brutal or heinous behavior indicative of wanton cruelty’ ” does not render
       the natural-life-sentencing provision unconstitutionally vague).
¶ 23        The arguments advanced by defendant in this case virtually mirror those of defendant
       Winningham. We agree with the analysis and holding of the Fourth District Appellate Court.


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       Defendant’s citation to various dictionary definitions and equating those definition
       differences with vagueness misses the mark. While the term is not specifically defined, the
       intent of the legislature was to grant deference to the trial court. We hold that defendant has
       failed to overcome his burden to rebut the presumption that the sentencing statute challenged
       is constitutionally sound.

¶ 24                       Trial Court Abused Its Discretion in Sentencing
¶ 25        Defendant next argues that the trial court abused its discretion in not construing the facts
       of this case as presenting extraordinary circumstances warranting probation rather than a
       term of imprisonment.
¶ 26        The trial court has very broad discretion when imposing sentence. People v. Stacey, 193
       Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000). That discretion is not without limits. Id. The
       punishment ordered by the trial court must be just and equitable. People v. Blumstengel, 61
       Ill. App. 3d 1016, 1021, 378 N.E.2d 401, 404 (1978). However, if the sentence imposed is
       within the statutory limits, there is a rebuttable presumption that the sentence is appropriate,
       and that presumption can only be overturned if the sentence imposed varies greatly from the
       purpose and spirit of the law. People v. Chambers, 258 Ill. App. 3d 73, 92, 629 N.E.2d 606,
       620 (1994). On appeal, the court will not interfere with the sentence imposed, unless the
       record reflects that the sentence is excessive and not justified under any reasonable review.
       People v. Smith, 214 Ill. App. 3d 327, 338, 574 N.E.2d 784, 791-92 (1991).
¶ 27        In this case, the trial court found no extraordinary circumstances warranting probation.
       The trial court found that defendant’s lack of a criminal history was a mitigating factor. The
       trial court found no merit to defendant’s proposed factor in mitigation–that he was induced
       to drink alcohol and drive while intoxicated by the victim’s suggestion. The trial court noted
       that a sentence of imprisonment was necessary for deterrence purposes.
¶ 28        The extraordinary circumstances required for probation are matters for the trial court’s
       discretion. Winningham, 391 Ill. App. 3d at 483, 909 N.E.2d at 369. Upon careful review of
       this record, we concur with the trial court’s assessment that extraordinary circumstances were
       lacking. Defendant’s attempt to blame the victim for his own choices on that night is without
       merit and is not worthy as a mitigating factor. Defendant’s behavioral choices that evening
       in July 2007 led to Justin Dodd’s death. Justin Dodd did not mandate the actions taken by
       defendant. With probation not being appropriate, the minimum sentence is three years. We
       conclude that the trial court’s sentence of four years does not amount to an abuse of
       discretion and is in keeping with the purpose and spirit of the law.

¶ 29                                    CONCLUSION
¶ 30       For the foregoing reasons, the judgment of the circuit court of Williamson County is
       hereby affirmed.

¶ 31       Affirmed.



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