People v. Guillen

• Decision Date: 25 November 2014
• Docket Number: No. 2–13–1216.,2–13–1216.
• Citation: 23 N.E.3d 402
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellant, v. Luis GUILLEN, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

23 N.E.3d 402

The PEOPLE of the State of Illinois, Plaintiff–Appellant

v.Luis GUILLEN, Defendant–Appellee.

No. 2–13–1216.

Appellate Court of Illinois, Second District.

Nov. 25, 2014.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Edward R. Psenicka, Assistant State's Attorneys, of counsel), for the People.

No brief filed for appellee.

OPINION

Justice SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 The State appeals the order of the circuit court of Du Page County dismissing charges of aggravated driving under the influence (DUI) ( 625 ILCS 5/11–501(d)(1)(D) (West 2012)) on the basis that the charges placed the defendant, Luis Guillen, in double jeopardy. For the following reasons, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 On April 11, 2013, the defendant was arrested and charged by complaint with misdemeanor DUI pursuant to section 11–501(a)(5) of the Illinois Vehicle Code (Code) (625 ILCS 5/11–501(a)(5) (West 2012)) (count I) and disobeying a traffic control device (625 ILCS 5/11–305 (West 2012) ) (count II). The case was docketed as No. 13–DT–1311.

¶ 4 On June 27, 2013, the parties appeared before the trial court (Judge Richard Russo presiding). Defense counsel explained that the case was up on his motion to quash a warrant for failure to appear, and he “would also look to resolve the case.” The prosecutor said that the State would proceed on count I and would enter a nolle prosequi on count II.

¶ 5 The trial court began taking the defendant's plea, stating, “Sir, I am told you wish to plead guilty to County [sic ] 1, driving under the influence of alcohol, a class A misdemeanor, punishable by a minimum of court supervision, a maximum of 364 days in the county jail, a $2,500 fine, plus statutory costs and assessments.” The trial court then corrected itself, noting that the defendant was not eligible for court supervision, because he had a prior DUI from 2004. Accordingly, the minimum would be conditional discharge. The parties agreed. The trial court “amended” the admonishments to reflect that the minimum sentence was conditional discharge, and the defendant told the court that he still wished to plead guilty. The trial court then stated, “there will be an order recalling and quashing the warrant.”

¶ 6 At that point, the State interjected, apologizing and stating that the defendant's blood test showed a blood alcohol concentration (BAC) of 0.208. As a result, the minimum sentence would be 2 days in jail; also, because he was a second-time offender, a minimum sentence of 5 days in jail or 240 hours of community service would apply. Defense counsel objected, saying that the factual basis for the plea did not include the blood test result. The trial court ascertained that the parties did not agree as to the minimum sentence faced by the defendant. The State added that it was asking for a sentence above the minimum anyway, and so they would leave it to the trial court's discretion. The trial court then asked whether, “if we don't agree on anything else, we agree the minimum is conditional discharge, and the maximum is 364 days.” The parties agreed with this statement, and the trial court stated that the previous admonishments would stand.

¶ 7 The trial court then asked the State what sentence it was recommending. The State responded as follows:

“Your Honor, this was [a] case where the Defendant missed an intersection. Intersection lights were out. He trailed into the intersection before stopping his car, alerting police to his vehicle.

When his vehicle was curbed, he admitted to taking 30 antidepressant pills.

He was taken to the hospital, where blood was drawn, where the police officer was told the blood result was. 208.

He does have a 2004 DUI conviction, a felony, great bodily harm case.”

Although the defendant had said earlier that the factual basis for his plea did not include the result of the blood test, the record does not contain any indication that the defendant disputed that his prior DUI had caused great bodily harm.

¶ 8 The State then requested a particular sentence. Defense counsel responded at length, arguing for leniency and no jail time so that the defendant could obtain substance abuse treatment. The trial court stated that it would pass the case so that it could review the defendant's evaluation, and asked whether either side wanted to add anything further at this point. The parties said no.

¶ 9 When the case was called again, the trial court advised the defendant that he had a right to make any statements he would like the court to consider before it imposed sentence. The defendant stated that he took full responsibility for what he did and that he preferred rehabilitation to jail time. The trial court questioned the defendant to confirm that he was currently involved in psychiatric treatment, was being seen by a doctor and prescribed medications, and was “generally in good health.” The court again asked whether either side wanted to add anything further, and the parties said no.

¶ 10 The court then asked the parties whether the defendant had caused any personal injury or accident in this case, and the parties agreed that he had not. The State confirmed this point and repeated its earlier description of the incident, saying, “In this case, there was an intersection where the stop light was out. There was [sic ] stop signs placed in the intersection, and the Defendant did not see[—]well, allegedly, did not see the stop signs, stopped in [the] middle of the intersection, which alerted the officer's attention.”

¶ 11 The trial court then asked whether, on the 2004 conviction, the defendant had been placed on felony probation. The State did not know, but defense counsel stated that the defendant had been incarcerated for three years. The trial court then began asking the defendant questions such as what he had learned as a result of that sentence, whether he had enjoyed his incarceration, and whether he thought that more incarceration would help him get control of his problem. In response to further questioning by the court, the defendant promised that if he received probation he would follow all court-imposed requirements, would comply with “zero tolerance” on taking alcohol and nonprescription drugs, and would not drive at all.

¶ 12 The following exchange then occurred:

“THE COURT: Listen to me very carefully because I am going to give you an opportunity to prove to me that you have learned your lesson and that you are willing to comply with zero tolerance.

THE DEFENDANT: Okay.

THE COURT: If you fail, you'll leave me no choice but to go along with the recommendation of the prosecution and incarcerate you. That's not what I want to do.

I've taken to heart the comments of your attorney, which would lead me to believe that maybe you are in a better place right now. However, it's not going to be an easy sentence.

MR. WHARRIE [State's Attorney]: Your Honor, at this time, before sentence is handed down, the State is asking to withdraw its recommendation and nolle pros [sic ] this case at this time before sentence is rendered.

THE COURT: Why?

MR. WHARRIE: Your Honor, reviewing the aggravating factors of the DUI, I see that with a prior DUI of death or great bodily harm, that is an aggravating factor [that the] State was unaware [sic ] as an element to enhance.

We would—we were not under the impression this was an enhanceable offense. So, based on that—

THE COURT: So, it is enhanceable now?

MR. WHARRIE: We believe based on my reading of the statute.

At this time, we would ask to dismiss the charges, on a later date to refile.”

The trial court then offered the prosecutor the opportunity to consult with a supervisor about his request, saying that if “the facts of this case justify that [felony charges], that's fine,” but the court did not want to have the State nol-pros the current charges, leaving the defendant without any requirement that he obtain counseling, and then refile misdemeanor charges. The prosecutor indicated that he understood and did wish to speak with his supervisor, and the case was again passed.

¶ 13 When the prosecutor returned, he stated that, after speaking with the supervisor, he was moving to nol-pros all counts “for felony enhancement.” Defense counsel objected, arguing that both parties had been asked if they had anything left to present and had said no, and that “prejudice [sic ] should attach.” Noting that it had not pronounced sentence or entered judgment, the trial court stated that it would “allow the defendant to withdraw his plea of guilty” and grant the State's motion to nol-pros all counts. The trial court also stated that it would remove all of the notes it had made on the file.

¶ 14 On July 11, 2013, in case No. 13–CF–1421, the defendant was charged by indictment with two counts of aggravated DUI, a felony, pursuant to section 11–501(d)(1)(D) of the Code (625 ILCS 5/11–501(d)(1)(D) (West 2012)). The indictment alleged that the defendant had previously been convicted of DUI that resulted in great bodily harm to another and that, on April 11, 2013, the defendant had driven while under the influence of alcohol (count I) and while having a blood alcohol concentration of 0.08 or greater (count II).

¶ 15 On July 17, 2013, in the misdemeanor case (No. 13–DT–1311), the defendant filed a motion to reconsider. The defendant argued that the trial court had already accepted his guilty plea and had begun to pronounce a lenient sentence (probation) when the State moved to nol-pros the charges, and the State's motion was an improper attempt to obtain a second opportunity to prosecute him and obtain a harsher sentence. On August 6, 2013, Judge Russo heard argument on the motion and denied it. Judge Russo rejected the defendant's argument that the State sought to nol-pros the charges for improper reasons (such as to forum shop), saying that he recalled the case, and it had appeared to him that the State was reviewing its file as the plea hearing progressed and realized...