People v. Malin

• Decision Date: 05 August 2005
• Docket Number: No. 2-04-0757.,2-04-0757.
• Citation: 833 N.E.2d 440
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David S. MALIN, Defendant-Appellant.
• Court: Illinois Supreme Court

833 N.E.2d 440

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David S. MALIN, Defendant-Appellant.

No. 2-04-0757.

Appellate Court of Illinois, Second District.

August 5, 2005.

COPYRIGHT MATERIAL OMITTED

Jeffrey J. Altman, Michling, Hofmann, Vinton, Plaza & Wick, P.C., Woodstock, for David S. Malin.

Louis A. Bianchi, McHenry County State's Attorney, Woodstock, Martin P. Moltz, Deputy Director, Elgin, Stephen E. Norris, Deputy Director, Kendra S. Peterson, State's Attorneys Appellate Prosecutor, Mt. Vernon, for the People.

Justice GILLERAN JOHNSON delivered the opinion of the court:

Following a partially negotiated guilty plea, the defendant, David Malin, was convicted of four counts of reckless homicide (720 ILCS 5/9-3(a), (c)(1), (e-5) (West 2002)) and was sentenced to 4 concurrent terms of 10 years' imprisonment. On appeal, the defendant raises numerous challenges to the propriety of his sentence. We affirm.

On March 16, 2002, the defendant was driving east on Highway 12 in Richmond. Shortly before 11:38 p.m., his vehicle crossed the center line of the road, striking a minivan. All four occupants of the minivan were killed. The defendant was intoxicated at the time of the accident, having a blood-alcohol level exceeding .08.

On May 23, 2002, the defendant was charged by indictment with 16 counts of alcohol-related reckless homicide (720 ILCS 5/9-3(a), (c)(1), (e-5) (West 2002)), a Class 2 felony, and 4 counts of aggravated driving under the influence of alcohol (aggravated DUI) (625 ILCS 5/11-501(a) (West 2002)), a Class 4 felony.

In 2003, the Illinois General Assembly amended both the reckless homicide statute and the aggravated DUI statute. Pub. Act 93-213, eff. July 18, 2003. The Illinois General Assembly removed language from the reckless homicide statute that elevated that offense to a Class 2 felony if two or more people were killed in a vehicular accident in which the defendant was under the influence of alcohol. Pub. Act 93-213, eff. July 18, 2003. The Illinois General Assembly placed similar language in the aggravated DUI statute, elevating the offense from a Class 4 felony to a Class 2 felony if two or more fatalities resulted from the offense. Pub. Act 93-213, eff. July 18, 2003. Senator Watson explained why these statutes were being amended:

"[There were] some concerns about a Supreme Court decision that struck down a Section of the reckless homicide statute. And in that particular case, the court found unconstitutional the presumption that any person driving under the influence necessarily drives recklessly in a reckless homicide law. What this does is it amends and addresses the Court's decision by adding a new subsection to the aggravated DUI statute, and this new subsection incorporates the Section of reckless homicide statute that was struck down into the aggravated DUI statute into the Vehicle Code." 93rd Ill. Gen. Assem., Senate Proceedings, April 3, 2003, at 41 (statements of Senator Watson).

Senator Watson later further explained:

"[These changes are] in response to an Illinois Supreme Court decision in regard to a case called People versus Pomykala. And in that case, the court struck down the current DUI reckless homicide statute as unconstitutional. These amendments — the first amendment requires truth in sentencing for a violation of the new aggravated DUI death subsection * * *. It increases the penalties to a limited extent for the violation of a new aggravated DUI statute, and it also eliminates the current reckless homicide statute as it relates to DUI homicides. And this — elimination is needed because the new aggravated DUI section replaces the corresponding reckless homicide Section." 93rd Ill. Gen. Assem., Senate Proceedings, May 31, 2003, at 172 (statements of Senator Watson).

On January 23, 2004, pursuant to a partially negotiated plea agreement, the defendant pled guilty to four counts of reckless homicide as the statute existed at the time of the commission of the offense. 720 ILCS 5/9-3(a), (c)(1), (e-5) (West 2002). In exchange for his plea, the State dismissed the remaining 16 counts pending against the defendant. In announcing the plea agreement, the State explained that the charges the defendant was pleading guilty to were Class 2 felonies. Furthermore, because two or more individuals were killed during a single course of conduct, the trial court had the option of sentencing the defendant to between 6 and 28 years' imprisonment. The trial court could also sentence the defendant to probation or work release. The State also explained that if the defendant were sentenced to a term of imprisonment, the defendant would be required to serve 85% of that sentence. After admonishing the defendant of the rights that he was giving up by pleading guilty, the trial court considered the factual basis of the plea. After considering the factual basis, and finding that the defendant entered his plea freely and voluntarily, the trial court accepted the defendant's guilty plea.

On April 13, 2004, the trial court conducted a sentencing hearing. The trial court considered the defendant's presentence report. This report revealed that the defendant had no prior criminal convictions. The trial court also considered the victim impact statements of the victims' families. In imposing the sentence, the trial court explained that it had considered the applicable factors in mitigation and aggravation. The trial court explained:

"[T]here are very few factors in aggravation, with the exception of a couple of extremely major ones. One factor in aggravation is the defendant inflicted death upon four individuals, and these are not four — see that's the law speaking, four individuals. People's family don't consider them as four individuals, they consider them as four loved family members. And I believe that this sentence is necessary to deter others from committing the same crime."

The trial court then sentenced the defendant to 4 concurrent terms of 10 years' imprisonment.

On June 18, 2004, the defendant filed a motion to reconsider sentence. The defendant argued, among other things, that the trial court had erred in considering the deaths of the four victims in imposing the sentence. The defendant argued that the victims' deaths were implicit in the offenses of reckless homicide. On June 30, 2004, following a hearing, the trial court denied the defendant's motion to reconsider sentence. The trial court clarified its previous determinations, explaining that the only factor in aggravation it had considered in imposing the sentence was the need to deter others from committing similar crimes. Following the trial court's ruling, the defendant filed a timely notice of appeal.

The defendant's first contention on appeal is that the trial court erred in not informing him that he had a right to be sentenced as a Class 3 felon. The basis of the defendant's argument is the change in the law that occurred between when he allegedly committed the offense and when he was sentenced. The defendant notes that in 2002, reckless homicide involving the deaths of two or more people was a Class 2 felony. See 720 ILCS 5/9-3(e-5) (West 2002). However, prior to his being sentenced, the law was changed so that reckless homicide was only a Class 3 felony. See 720 ILCS 5/9-3(d)(2) (West 2004). Based on this change in the law, the defendant argues that the trial court erred in not informing him that he had a choice under which statutory scheme he wanted to be sentenced.

The defendant is correct in asserting that, due to the change in the law, he had a choice under which sentencing scheme he wanted to be sentenced. See People v. Hollins, 51 Ill.2d 68, 71, 280 N.E.2d 710 (1972); People v. Strebin, 209 Ill.App.3d 1078, 1081, 154 Ill.Dec. 420, 568 N.E.2d 420 (1991). In Hollins, the Illinois Supreme Court explained:

"Petitioner * * * was entitled to be sentenced under either the law in effect at the time the offense was committed or that in effect at the time of sentencing [citation], and the record fails to show that he was advised of his right to, or permitted to, make the choice. * * * [W]e hold that in the absence of a showing that he was advised of his right to elect under which statute he should be sentenced, and an express waiver of that right, petitioner was denied due process of law." Hollins, 51 Ill.2d at 71, 280 N.E.2d 710.

We note, however, that the defendant's specific contention is more of an attack on his plea agreement than on his sentence. In exchange for the State dismissing 16 other charges that were pending against him, the defendant pled guilty to four counts of reckless homicide. The State informed the trial court that the crimes the defendant was pleading guilty to were Class 2 felonies. The defendant indicated that he understood that he was pleading guilty to four Class 2 felonies. The defendant also indicated that he understood the sentencing range that accompanied a Class 2 felony. The trial court found that the defendant was entering a knowing and voluntary plea of guilty. Despite entering into a plea agreement where he agreed to be sentenced as a Class 2 felon, the defendant essentially argues now that the trial court erred in not admonishing him that he could be sentenced as a Class 3 felon, thereby giving him the option of receiving a shorter sentence. The defendant fails to understand that by arguing that he should have been so admonished, he is seeking to alter the terms of his plea agreement.

Because the defendant is attacking his plea agreement, the defendant was required to move to withdraw his guilty plea in the trial court. 188 Ill.2d R. 604(d). This is because contract law principles dictate the nature of plea agreements, and the guilty plea and the sentence "go hand in hand" as material elements of the plea bargain. People v. Evans, 174 Ill.2d 320, 332, 220 Ill.Dec. 332, 673 N.E.2d 244 (1996). To allow a defendant to unilaterally modify a plea agreement...