                             2014 IL App (2d) 130718
                                  No. 2-13-0718
                          Opinion filed December 2, 2014
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 11-CF-2464
                                       )
TIMOTHY J. MORROW,                     ) Honorable
                                       ) Brian P. Hughes,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.
       Justices Zenoff and Spence concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant, Timothy J. Morrow, appeals his sentence of 13 years’ incarceration for

aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(2)(E) (West 2010)), a

Class X felony based on at least five prior DUI convictions. He contends that the trial court

wrongly applied his previous convictions in aggravation during sentencing when they had

already elevated the offense to a Class X felony. We determine that the trial court did not apply

the previous convictions in aggravation and instead properly discussed them in relation to the

nature and circumstances of the offense, defendant’s likelihood to reoffend, protection of the

public, and deterrence. Accordingly, we affirm.

¶2                                    I. BACKGROUND
2014 IL App (2d) 130718


¶3     Defendant was arrested on July 30, 2011. On October 22, 2012, a jury trial was held.

Officer Ryan Rodriguez testified that he observed defendant’s vehicle swerve within its lane.

When Rodriguez activated his lights, defendant continued to drive and did not pull over until

Rodriguez activated his siren. An object was thrown from the passenger-side window, and a

partially full can of beer was recovered from the roadside. Defendant exhibited multiple signs of

intoxication and failed multiple field sobriety tests. He refused a Breathalyzer test. The jury

found defendant guilty.

¶4     At sentencing, the State presented evidence that defendant had seven previous DUI

convictions between 1987 and 1995. He had 10 total DUI arrests. Two of those charges, in

2005 and 2006, were reduced to reckless driving. He had been sentenced to prison twice before

for aggravated DUI and driving while his license was revoked. Defendant also had an alcohol-

related conviction of violation of an order of protection in 2003 and an arrest for criminal

damage to state-supported property in 2009. In the 2009 incident, defendant was belligerent,

disruptive, and profane during an arrest for disorderly conduct. He then threw a boot inside the

police station, breaking a ceiling tile. He pleaded guilty to an amended charge of disorderly

conduct and was sentenced to conditional discharge. In 2011, 10 days before he was arrested on

the current charge, his conditional discharge was revoked and he was sentenced to probation. A

petition to revoke probation was pending in that case at the time of sentencing in this case.

Defendant was also arrested in 2010 for an alcohol-related offense, and that case was also

pending at the time of sentencing. Aside from alcohol-related offenses, defendant had a lengthy

history of other offenses.

¶5     Referring to the number of DUI arrests, the State argued that defendant was a danger to

the public, referring to him as “the grim reaper to every driver on the road.” The State noted



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that, beginning as a juvenile, defendant had spent nearly every year of his life being arrested for

offenses related directly or indirectly to alcohol. Pointing to defendant’s overall criminal history,

the State argued that defendant was a habitual offender who had squandered chances to change.

The State argued that there was a need for deterrence against repeat offenders. Thus, it asked for

15 years’ incarceration.

¶6     The defense noted defendant’s good behavior while out on bond. Defendant apologized

and stated that he took responsibility for his actions, but he said that he had simply made

mistakes. He also said that he was abused by his stepfather when he was young. He said that he

wanted to see his 12-year-old son grow up, that he had paid his debt on his past DUI convictions,

and that he had worked for years to get his license back after them. At one point defendant said,

“I’m such a drunk.”

¶7     The trial court noted defendant’s candor and that his abuse could have led him to self-

medicate with alcohol. However, the court also stated that “there are a number of people in this

society that are abused as children and they don’t go out to repeatedly violate the driving under

the influence of alcohol laws of this state or any state on a repeated basis.”           The court,

specifically referring to defendant’s statement that he made mistakes, agreed that everyone

makes mistakes but said that he had “made mistake after mistake after mistake the last 25 years.”

The court then noted defendant’s lengthy criminal history from when he was a teenager until he

was arrested on the current offense just 10 days after being resentenced on another one.

¶8     Noting defendant’s statement that he was “such a drunk,” the court characterized

defendant as perhaps a “ ‘functional alcoholic’ ” who could maintain employment and a home

yet still commit the same mistakes every year. Noting that it was “assessing risk,” the court

further noted that defendant had participated in DUI treatment multiple times, but that it had no



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2014 IL App (2d) 130718


impact on him. Referring again to defendant’s statement that he made mistakes, the court said

that the vast majority of offenders “are so impacted by that one arrest, either the public shame or

self-reflection how they got there, they never, ever put themselves in that position again. But yet

you find yourself here for the eighth violation, the eighth time.” Reciting defendant’s previous

DUI convictions, along with his other convictions, the court stated that all the trips to prison did

not slow defendant down.       Indicating a concern for public safety and citing the need for

deterrence, the court sentenced defendant to 13 years’ incarceration. Defendant appeals.

¶9                                        II. ANALYSIS

¶ 10   Defendant contends that the court wrongly applied his previous DUI convictions in

aggravation during sentencing when they had already elevated the offense to a Class X felony.

Thus, defendant argues that his sentence was improperly enhanced twice by the same prior

convictions. The State contends that the court properly discussed the previous convictions as

part of its consideration of the nature and circumstances of the offense and to address the need

for deterrence and public safety.

¶ 11   Defendant concedes that he did not raise the issue at the time of sentencing or in a motion

to reconsider, but argues that the matter is plain error. Unpreserved errors may be reviewed if

(1) the evidence was so closely balanced that the error alone threatened to tip the scales of justice

against the defendant, regardless of the seriousness of the error; or (2) the error was so

fundamental and of such magnitude that it affected the fairness of the hearing and challenged the

integrity of the judicial process, regardless of the closeness of the evidence.           People v.

Thompson, 238 Ill. 2d 598, 613 (2010). Our first step in plain-error review is to determine

whether error occurred. Id.




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¶ 12   A reasoned judgment as to the proper penalty to be imposed must be based on the

particular circumstances of each individual case. People v. Saldivar, 113 Ill. 2d 256, 268 (1986).

“Such a judgment depends upon many relevant factors, including the defendant’s demeanor,

habits, age, mentality, credibility, general moral character, and social environment [citations], as

well as the nature and circumstances of the offense, including the nature and extent of each

element of the offense as committed by the defendant [citations].” (Emphasis and internal

quotation marks omitted.) Id. at 268-69. These factors also include the defendant’s criminal

history, the defendant’s potential for reform, and the recognized interest in protecting the public

and in providing a deterrent. People v. Wilson, 257 Ill. App. 3d 670, 704-05 (1993). “The trial

court is in the best position to balance the appropriate factors and tailor a sentence to the needs of

the case.” Id. at 704.

¶ 13   However, a factor implicit in the offense of which the defendant has been convicted

cannot be used as an aggravating factor in sentencing for that offense. People v. Ferguson, 132

Ill. 2d 86, 97 (1989). Stated differently, a single factor cannot be used both as an element of an

offense and as a basis for imposing “a harsher sentence than might otherwise have been

imposed.” People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992). This prohibition against double

enhancements is based on the assumption that, in designating the appropriate range of

punishment for an offense, the legislature necessarily considered the factors inherent in the

offense. People v. Rissley, 165 Ill. 2d 364, 390 (1995).

¶ 14   Whether a trial court relied on an improper factor when sentencing a defendant is a

question of law, subject to de novo review. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8.

Nonetheless, there is a strong presumption that the trial court based its sentencing determination

on proper legal reasoning. People v. Dowding, 388 Ill. App. 3d 936, 942-43 (2009). “In



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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.” Id. at 943.

¶ 15   Defendant relies primarily on Dowding and Abdelhadi, which illustrate when a factor has

been improperly used as a double enhancement. In Dowding, the defendant was charged with

aggravated DUI based on the death of another.          At the sentencing hearing, the State, in

requesting the maximum term of imprisonment, stated five times that defendant “ ‘killed

someone’ ” or “ ‘caused the death of someone.’ ” Id. The State argued that three statutory

factors in aggravation applied: (1) the defendant’s conduct caused or threatened serious harm; (2)

the defendant had a history of prior delinquency or criminal activity; and (3) the sentence was

necessary to deter others from committing the same crime. Id. In imposing its sentence, the trial

court stated in part: “ ‘The factors in aggravation that I do find apply in this case are, Number 1,

that the defendant’s conduct caused or threatened serious harm. No question, this defendant’s

conduct in this offense caused the greatest harm there could be, that is the death of another

person.’ ” Id. On appeal, we found that the trial court erred in considering the victim’s death as

an aggravating factor. We stated that the court “acted well within its bounds” to mention the

victim’s death when discussing the defendant’s failure to accept sufficient responsibility for a

serious offense and to comply with the conditions of probation. Id. at 944. “However, the court

erred where it expressly stated that causing the victim’s death was an aggravating factor upon

which the sentence was based.” Id. Observing that the State also argued the harm caused to the

victim as an aggravating factor, we held that “the trial court considered the victim’s death as a

factor in aggravation and did not merely mention the victim’s death in its summary of the

circumstances of the case or in stressing the seriousness of the offense.” Id.



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¶ 16   In Abdelhadi, the defendant pleaded guilty to aggravated arson based on the threat of

harm to others. At sentencing, the State noted that aggravated arson is a Class X felony and

argued that the trial court should consider in aggravation: (1) that the defendant’s acts

endangered or could have endangered other people’s lives; (2) the defendant’s criminal history;

and (3) that the defendant was on probation. In rendering its sentence, the trial court stated:

“ ‘Specifically in aggravation the Court has considered that the conduct caused by the defendant

did, in fact, endanger the lives of individuals. That he was on probation at the time of the event.

Court has considered his criminal history in aggravation.’ ” Abdelhadi, 2012 IL App (2d)

111053, ¶ 4.

¶ 17   The defendant appealed, contending that his sentence was excessive because the “threat

of harm to others” was an improper aggravating factor when that factor was inherent in the

offense of aggravated arson. Id. ¶ 6. Relying on Dowding, we noted that the trial court’s

recitation of aggravating factors mirrored the factors that the State argued in aggravation, which

showed that the trial court did not merely mention the threat of harm to others in its summary of

the circumstances of the case or in stressing the seriousness of the offense. Instead, it showed

that the trial court actually considered the threat of harm as a factor in aggravation. Even in the

presence of other, legitimate aggravating factors, such as the defendant’s being on probation at

the time of the offense and his criminal history, the trial court’s reliance on the threat of harm to

others was improper. Id. ¶ 12.

¶ 18   In comparison, People v. Thomas, 171 Ill. 2d 207 (1996), illustrates when factors inherent

in the offense are properly considered not in aggravation but in assessing other, proper factors.

In Thomas, the trial court considered the defendant’s prior convictions as part of his criminal

history, when those were also used to establish the defendant’s eligibility for Class X sentencing.



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2014 IL App (2d) 130718


Our supreme court held that the consideration of the convictions was proper, stating that “while

the fact of a defendant’s prior convictions determines his eligibility for a Class X sentence, it is

the nature and circumstances of these prior convictions which, along with other factors in

aggravation and mitigation, determine the exact length of that sentence.” (Emphases in original.)

Id. at 227-28 (citing Saldivar, 113 Ill. 2d at 269). The Thomas court found that the trial court

properly “reconsidered” the defendant’s prior convictions in fulfilling its constitutionally

mandated duty to assess his rehabilitative potential in order to fashion an appropriate sentence.

Id. at 229. The court held that “[t]his exercise of judicial discretion was entirely proper and does

not constitute an enhancement.” Id.

¶ 19   Here, defendant contends that the trial court’s repeated remarks regarding his previous

convictions constituted a double enhancement. But looking at the record as a whole, it is clear

that the court’s comments went only to the nature and circumstances of the offense and other

proper factors. Unlike in Abdelhadi and Dowding, the court did not rely on the mere fact that

defendant had at least five previous convictions in aggravation to impose a harsher sentence than

it would have otherwise imposed. Unlike in those cases, where the court specifically stated that

it was considering an element of the offense in aggravation, here the court never specifically

stated that it was using the prior convictions in aggravation. Nor did the State ask the court to do

so. Instead, the State’s arguments to the court and the court’s comments show that it was

discussing the prior convictions in order to address defendant’s likelihood to engage in criminal

activity in the future, his inability to learn from prior punishments, the need for deterrence, and

the protection of society. These were legitimate concerns that the court was entitled to consider

when imposing a sentence.       Indeed, instead of using the prior convictions as a factor in




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aggravation, the court specifically stated that it was “assessing risk” and it tailored its comments

as a response to defendant’s attempts to discount his recidivism as a series of “mistakes.”

¶ 20   As further evidence that the court was not relying on the mere fact that defendant had at

least five previous convictions, the court noted defendant’s entire criminal history, which was

lengthy, including seven previous DUI convictions and additional alcohol-related offenses. “The

mere fact that defendant’s sentence was enhanced to a Class X status because of recidivism does

not automatically entitle him to a near-minimum sentence.” People v. Gomez, 247 Ill. App. 3d

68, 74 (1993). It is also appropriate to impose a longer sentence when the defendant has other

convictions in addition to those that established his Class X eligibility. See id. at 75. Here,

defendant’s recidivism and failure to rehabilitate were particularly relevant factors, and the court

properly considered those to impose an appropriate sentence.

¶ 21                                   III. CONCLUSION

¶ 22   The trial court did not err when it discussed defendant’s prior convictions in relation to

the nature and circumstances of the offense, defendant’s likelihood to reoffend, protection of the

public, and deterrence.    Accordingly, the judgment of the circuit court of Lake County is

affirmed.

¶ 23   Affirmed.




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