                                          2018 IL App (3d) 160743

                                 Opinion filed December 6, 2018
       _____________________________________________________________________________

                                                   IN THE

                                     APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2018

       THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
       ILLINOIS,                                       )       of the 12th Judicial Circuit,
                                                       )       Will County, Illinois,
              Plaintiff-Appellee,                      )
                                                       )       Appeal No. 3-16-0743
              v. 	                                     )       Circuit No. 16-CF-911

                                                       )

       JOHN M. MITOK,                                  )       Honorable

                                                       )       Amy M. Bertani-Tomczak,
              Defendant-Appellant.                     )       Judge, Presiding.
       _____________________________________________________________________________

             JUSTICE McDADE delivered the judgment of the court, with opinion 

             Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion. 

       _____________________________________________________________________________

                                                 OPINION

¶1            Defendant, John M. Mitok, appeals following his conviction for aggravated driving under

       the influence (DUI). He argues that the circuit court applied an improper double enhancement

       when the same prior felony that was an element of his offense was also considered as a predicate

       offense making him eligible for mandatory Class X sentencing. Thus, he argues that the court

       committed plain error when it sentenced him as a Class X offender rather than as a Class 2

       offender. We vacate the court’s sentence and remand for resentencing.

¶ 2	                                               FACTS
¶3          The State charged defendant by indictment with aggravated DUI (625 ILCS 5/11­

     501(a)(2), (d)(2)(C) (West 2016)). The indictment alleged that the present offense would be

     defendant’s fourth DUI violation and listed each of the previous three offenses, including a 2015

     violation in Will County. The indictment specifically cited subsection (d)(2)(C) of the DUI

     statute as the portion that defendant violated. Id. § 11-501(d)(2)(C).

¶4          Following a bench trial, the circuit court found defendant guilty of the charged offense.

     The presentence investigation report (PSI) prepared for defendant’s sentencing listed defendant’s

     three previous convictions for DUI: a Will County misdemeanor violation in 1987, a Cook

     County misdemeanor violation in 1991, and a 2015 Class 2 felony aggravated DUI in Will

     County. The PSI also indicated that defendant was convicted of a Class 2 felony robbery in 1994.

¶5          At sentencing, the State asserted that defendant was eligible for mandatory Class X

     sentencing based on his two prior Class 2 felony convictions. See 730 ILCS 5/5-4.5-95(b) (West

     2016) (providing than an offender convicted of a Class 1 or Class 2 felony shall be sentenced as

     a Class X offender where he has been twice previously convicted of Class 2 or greater felonies).

     Defense counsel agreed with the State’s assertion. In imposing sentence, the court commented:

     “Well, I’m bound by the law. It has to be 6 to 30, but I see no reason to sentence you to anything

     other than the minimum. There is nothing necessarily aggravating about the case itself, so I’m

     going to sentence you to the six years in prison.”

¶6                                              ANALYSIS

¶7          On appeal, defendant contends that his subjugation to Class X sentencing represented an

     improper double enhancement where the same prior offense—his 2015 felony aggravated DUI—

     was used both as an element of the charged offense and also to make him eligible for Class X




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       sentencing. He concedes that he did not preserve the error below, but urges this court to review

       the issue under the rubric of plain error.

¶8             The first step in any plain-error analysis is to determine whether a clear, obvious, or plain

       error has been committed. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). If the reviewing

       court finds that a clear or obvious error has occurred, it is the defendant’s burden to demonstrate

       that the error was prejudicial and thus reversible. See People v. Thompson, 238 Ill. 2d 598, 613

       (2010). While a defendant can make this showing under the first or second prong of plain error

       (e.g., People v. Darr, 2018 IL App (3d) 150562, ¶¶ 49-50), only the second prong is at issue in

       the present case. In the context of sentencing, an error is reversible under the second prong where

       that error “was so egregious as to deny the defendant a fair sentencing hearing.” People v.

       Hillier, 237 Ill. 2d 539, 545 (2010). More generally, the second prong applies where the error

       committed “was so serious it affected the fairness of the trial and challenged the integrity of the

       judicial process.” People v. Sebby, 2017 IL 119445, ¶ 50.

¶9             “[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.’ [Citation.] Such dual

       use of a single factor is often referred to as a ‘double enhancement.’ ” People v. Phelps, 211 Ill.

       2d 1, 11-12 (2004) (quoting People v. Gonzalez, 151 Ill. 2d 79, 84 (1992)). Our supreme court

       has explained that the bar on double enhancements stems from the presumption that the

       legislature has necessarily considered such factors in setting the appropriate range of punishment

       for the offense. Id. at 12.

¶ 10           In this case, the State charged defendant with aggravated DUI under section (d)(2)(C) of

       the DUI statute. That section holds that “A fourth violation of this Section or a similar provision

       is a Class 2 felony ***.” 625 ILCS 5/11-501(d)(2)(C) (West 2016). Accordingly, the State listed



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       defendant’s three prior DUI convictions in the charging instrument. When the court subsequently

       used one of those three convictions—namely, the 2015 Class 2 felony aggravated DUI—as one

       of two predicate felonies making defendant Class X sentencing eligible, it committed a clear

       violation of the prohibition of double enhancements. In other words, once the 2015 felony had

       been used to elevate defendant’s offense to a “fourth violation” under section (d)(2)(C) of the

       DUI statute, it could not be used again to further increase his sentencing range. Indeed, the State

       concedes that the court erred in applying an improper double enhancement.

¶ 11            The only dispute in this appeal is whether the application of an improper double

       enhancement rises to the level of second-prong plain error. Defendant insists that he has a

       “fundamental right to be sentenced by a judge who is aware of the correct minimum and

       maximum sentences for an offense.” The State simply cites to recent decisions from the Second

       and Fourth Districts (People v. Tatera, 2018 IL App (2d) 160207, ¶ 71; People v. McGath, 2017

       IL App (4th) 150608, ¶¶ 68, 72), in which those courts found that the present error is not subject

       to plain-error review, and urges us to follow those cases.

¶ 12            In People v. Martin, 119 Ill. 2d 453, 458 (1988), our supreme court found that the

       consideration of a factor inherent in the offense as an aggravating factor “clearly affected the

       defendant’s fundamental right to liberty.” Relying on Martin, this court found second-prong

       plain error based on the same improper double enhancement. People v. Sanders, 2016 IL App

       (3d) 130511, ¶ 17. To be sure, the type of double enhancement error committed in this case is not

       identical to those in Martin and Sanders. In those cases, the factor in question was improperly

       considered in aggravation, thus impacting the defendants’ actual sentences. Here, the fact of

       defendant’s 2015 aggravated DUI conviction was used improperly to elevate the sentencing

       range.



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¶ 13          The facts of this case, however, plainly demonstrate that this is a distinction without a

       difference. The circuit court stated explicitly that it saw “no reason to sentence [defendant] to

       anything other than the minimum” and that “[t]here is nothing necessarily aggravating about the

       case itself.” Thus, this is not a case where we are forced to speculate as to the impact of the

       circuit court’s mistaken impression as to the sentencing range. Following the improper double

       enhancement, that minimum was six years’ imprisonment. 730 ILCS 5/5-4.5-25(a) (West 2016).

       Had the court acted properly, however, defendant would have faced a minimum sentence of only

       three years in prison. Id. § 5-4.5-35(a) (prescribing a sentence of not less than three years and not

       more than seven years’ imprisonment for Class 2 felonies). Where the court’s double

       enhancement error results in a defendant being sentenced to three additional years of

       imprisonment, there can be no doubt that the defendant’s sentencing hearing was fundamentally

       unfair. See Hillier, 237 Ill. 2d at 545; see also People v. Owens, 377 Ill. App. 3d 302, 305-06

       (2007) (vacating double-enhanced sentence following plain-error review). Accordingly, we find

       that the circuit court’s improper double enhancement of defendant’s sentence is reversible under

       the second prong of plain error, vacate defendant’s sentence, and remand for resentencing.

¶ 14          In reaching this result, we necessarily reject the State’s contention that we should follow

       the holdings in McGath and Tatera. Those cases are actually of no help to the State’s case. First,

       in McGath, the Fourth District adhered to a line of cases from that district standing for the

       proposition that simply alleging a violation of one’s “fundamental right to liberty” is insufficient

       to bring purported sentencing errors under plain-error review. McGath, 2017 IL App (4th)

       150608, ¶¶ 68-69. The McGath court reiterated that the denial of a fair sentencing hearing

       remained the touchstone for second-prong plain error claims at sentencing. Id. ¶ 69. McGath is




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       wholly inapplicable to the case before us, as defendant here has properly asserted the denial of a

       fair sentencing hearing.

¶ 15          Tatera is even less relevant to the present case. There, the defendant raised an

       unpreserved claim of double enhancement, but rather than argue for plain error, he contended

       that the court should relax forfeiture due to purported deficiencies in the circuit court’s appeal

       admonitions. Tatera, 2018 IL App (2d) 160207, ¶¶ 67-69. The Second District rejected that

       contention and held the issue forfeited. Id. ¶ 70. The Tatera opinion contained absolutely no

       discussion of plain error.

¶ 16                                             CONCLUSION

¶ 17          The sentence of the circuit court of Will County is vacated and the matter is remanded.

¶ 18          Vacated.

¶ 19          Cause remanded.




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