People v. Dowding

• Decision Date: 10 March 2009
• Docket Number: No. 2-06-1217.,2-06-1217.
• Citation: 388 Ill. App. 3d 936,904 N.E.2d 1022
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary E. DOWDING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

904 N.E.2d 1022

388 Ill. App. 3d 936

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary E. DOWDING, Defendant-Appellant.

No. 2-06-1217.

Appellate Court of Illinois, Second District.

March 10, 2009.

Thomas A. Lilien (Court-appointed), Deputy Defender, Jaime L. Montgomery (Court-appointed), Office of the State Appellate Defender, Elgin, for Gary E. Dowding.

John B. Roe, Ogle County State's Attorney, Oregon, Lawrence M. Bauer, Deputy Director, State's Attorney Appellate Prosecutor, Elgin, Alexander Vroustouris, Chicago, for the People.

Justice JORGENSEN delivered the opinion of the court:

Defendant, Gary Dowding, pleaded guilty to reckless homicide (720 ILCS 5/9-3 (a) (West 2004)) and aggravated driving while under the influence of a controlled substance (aggravated DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2004)). He was sentenced to probation on each charge and ordered to pay $3,414 in court costs, fees, and fines. Defendant subsequently pleaded guilty to a probation violation based on testing positive for cocaine. The trial court sentenced defendant to two concurrent 10-year terms of imprisonment. Defendant timely appealed and raises the following issues: (1) whether the trial court, in imposing a 10-year sentence for aggravated DUI, improperly considered in aggravation a factor inherent in the offense, i.e., the fact that defendant's conduct caused the death of another; (2) whether defendant's 10-year sentence for reckless homicide should be reduced where the trial court imposed a sentence that is five years longer than the maximum permissible sentence; and (3) whether various costs, fees, and fines were properly imposed. For the reasons that follow, we affirm in part, reverse in part, and remand with directions.

I. BACKGROUND

On November 15, 2005, defendant was charged by indictment with aggravated DUI, DUI, and two counts of reckless homicide. On March 23, 2006, defendant entered fully negotiated guilty pleas to one count of reckless homicide and aggravated DUI. The remaining charges were nol-prossed. The parties agreed that defendant would be sentenced to 30 months' probation for reckless homicide and 48 months' probation for aggravated DUI, to be served concurrently. Defendant would also serve 140 days in jail with credit for time served.

According to the factual basis for the pleas, various witnesses would testify that, on September 22, 2005, defendant disregarded a stop sign and drove a semitruck through an intersection and struck a vehicle. The driver of the vehicle was pronounced dead at the scene. Defendant's truck "had brakes out of adjustment on axles one, two, and three," and it "had defective and inadequate brake linings in the axles." Further, the truck was "overweight" and was not registered. Tests of defendant's blood and urine revealed the presence of "cocaine metabolites" in defendant's system.

After accepting defendant's guilty pleas, the trial court sentenced defendant in accordance with the parties' agreement. Additionally, with respect to the reckless homicide conviction, the trial court stated: "You are to pay the $10 fee to Crime Stoppers as well as the costs, fees, and penalties in this case." With respect to the aggravated DUI conviction, the trial court stated:

"[Y]ou are to pay a $25 per month probation service fee, a $10 contribution to Crime Stoppers on this case, as well as the court costs on this case.

You are also to pay restitution pursuant to statute in the amount of $2,700 to the Oregon Fire Department, 100 West Washington Street, in Oregon."

In addition, the two sentencing orders each list a $10 "Arrestee's Medical Costs" charge and a $20 "Violent Crime Victim's Assistance" charge.

On July 14, 2006, the State petitioned to revoke defendant's probation, alleging that defendant tested positive for cocaine in a random urinalysis on July 13, 2006, and failed to cooperate with or satisfactorily complete substance abuse counseling as directed by the probation department. On September 29, 2006, the parties appeared before the trial court. Defendant admitted to the first allegation and, in exchange, the second allegation was dismissed. Reciting the factual basis, the State noted that defendant had submitted to a random urinalysis on July 13, 2006, and had tested positive for cocaine. When confronted with the results of the test, defendant admitted using cocaine. Defendant signed in front of his probation officer a written statement admitting that he used cocaine on July 8, 2006. The court found that there was a factual basis for defendant's admission and that it was knowing and voluntary.

A sentencing hearing took place on November 17, 2006. Defendant's probation officer, Brooke Plachno, testified in mitigation. Plachno first met defendant in May 2006. Defendant tested positive for cocaine on July 13, 2006, and she had seen defendant weekly since July 27, 2006. Defendant had never missed an appointment. Plachno recommended to defendant that he "get re-involved in treatment," and she suggested that he participate in "AA or NA." Defendant followed her suggestions. Defendant completed "level three treatment" at the end of September and "started aftercare at the beginning of October." As of October 6, 2006, defendant had been working at Sterling Environmental through a temporary agency. As of the date of the hearing, defendant had been attending AA meetings once per week, but Plachno wanted him to attend at least two or three times per week. She stated: "I believe that a period of incarceration would be appropriate. [Defendant] is working now, I understand that he has to support his family, but maybe that's something, work release is something he could work out with the jail." On cross-examination, Plachno testified that, after defendant tested positive for cocaine, defendant initially told her that he had "used some with friends over the weekend" but then denied using cocaine and told her "that he had actually used his mom's mouthwash, which contained a cocaine derivative."

Defendant testified that he lived with his wife and his 78-year-old mother in his mother's house. His mother's health was "not very good." He felt that he was needed at home. In July 2006, he was working for Sterling Environmental, earning $10 per hour. Defendant was terminated following the positive drug test. Defendant admitted that he used cocaine once while on probation but stated that he had not used any illegal substances since then. He returned to Sterling Environmental about two weeks prior to the hearing, and he "bring[s] home [$]312 a week." He had been paying back the court costs and fines ordered by the trial court. Defendant had completed 75 hours of treatment.

Following counsel's arguments, the trial court stated:

"First of all, the court wants to make sure the record is clear that the range of sentence in this case is potentially a resentencing to a term of probation or conditional discharge. If there's a term of imprisonment, that term of imprisonment, under the statute, is from three to fourteen years in the Department of Corrections. That is the range on each count to which the defendant has been convicted * * *."

The court noted that, from the time of sentencing through the filing of the petition to revoke probation, defendant did not make any payments toward his $3,414 balance. Defendant made two $25 payments in August 2006, a $50 payment in September 2006, and a $50 payment in November 2006, leaving a balance of $3,299 remaining. The court stated:

"Now, why I point that out * * * is, I think that, that is representative to me in a way of the whole way in which you seem to have viewed this case as it has gone along. When you stood before me and pled guilty pursuant to the plea agreement in March, you shed tears and at that time I believed that perhaps you were actually truly remorseful about the pain that you caused to the Kerwin family by causing the accident which caused the death of their son. But as I review everything that has occurred and is before me since that plea on that date, I think that the way you've handled the payment of your fees is simply an analogy for how you have viewed your whole responsibility, with regard to your responsibilities to the Kerwin family and your responsibilities to this court, and your responsibilities to this community and, and to society in general, and I think it's very representative and very telling."

The court noted that defendant has a "lengthy criminal history." It stated:

"And while I realize that there were many, many years during which the Defendant did not violate the law, at least didn't violate the law in serious ways, there are still many traffic violations, and I think there can be an argument made that shows a general disregard for the law, but there weren't serious violations, of the law, but what I find interesting is the length of time and the span of his lifetime that this Defendant has violated the law in very serious ways."

As to the factors in aggravation and mitigation, the court stated as follows:

"I find at this time that there are no factors in mitigation in this case. * * * [W]hile I am sympathetic * * * to your mother's difficulties, I do not find that that issue rises to the level of excessive hardship to a dependent. * * *

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.

I find that the Defendant has a history of prior delinquency or criminal activity. I've outlined that previously, and that history goes over a long, long period of time.

And I find that Number 7 also applies, and that is that this sentence is necessary to deter others from committing the same crime."

After imposing sentence, the trial court admonished defendant that he had a right to appeal. Howe...