                                                                                FILED
                                   2014 IL App (4th) 140624                   December 1, 2014
                                                                                 Carla Bender
                                         NO. 4-14-0624                       4th District Appellate
                                                                                   Court, IL
                                 IN THE APPELLATE COURT

                                         OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, )  Appeal from
         Plaintiff-Appellee,         )  Circuit Court of
          v.                         )  Champaign County
KATHERYN J. DALY,                    )  No. 13CF1853
         Defendant-Appellant.        )
                                     )  Honorable
                                     )  Richard P. Klaus,
                                     )  Judge Presiding.
____________________________________________________________

             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 3 1/2 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 3 1/2 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.

                      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.


                                                -2-
                       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?




                                                -3-
                       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 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


                                                  -4-
              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




                                                -5-
              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.




                                                -6-
                       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.

                       [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


                                                 -7-
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




                                                  -8-
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 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,


                                                -9-
              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.




                                                - 10 -
¶ 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 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


                                                 - 11 -
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


                                  - 12 -
             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 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-


                                              - 13 -
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:

                       "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 3 1/2 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


                                                 - 14 -
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 3 1/2-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,


                                                - 15 -
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 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


                                                - 16 -
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


                                                - 17 -
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 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


                                               - 18 -
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


                                                - 19 -
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.)

¶ 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).




                                               - 20 -
¶ 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).


                                                - 21 -
¶ 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 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


                                               - 22 -
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.


                                                - 23 -
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 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.




                                               - 24 -
