People v. Weiser , 2013 IL App (5th) 120055 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Weiser, 2013 IL App (5th) 120055
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MELISSA J. WEISER, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-12-0055
Filed August 7, 2013
Rehearing denied September 5, 2013
Held The appellate court rejected defendant’s contention that the trial court
(Note: This syllabus lacked the authority to sentence her for aggravated DUI based on a
constitutes no part of collision that resulted in multiple deaths and injuries because it failed to
the opinion of the court first enter judgment on her guilty plea, since the record of defendant’s
but has been prepared plea hearing established an adjudication of guilt “apparent of record”
by the Reporter of where the trial court found a factual basis for her plea, determined that
Decisions for the she understood the charges and the rights she was giving up, and made
convenience of the the determination necessary to adjudicate her guilt before sentencing her.
reader.)
Decision Under Appeal from the Circuit Court of Clinton County, No. 09-CF-116; the
Review Hon. Dennis E. Middendorff, Judge, presiding.
Judgment Affirmed as modified.
Counsel on Michael J. Pelletier, Ellen J. Curry, and Lawrence J. O’Neill, all of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
John Hudspeth, State’s Attorney, of Carlyle (Patrick Delfino, Stephen E.
Norris, and Sharon Shanahan, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Presiding Justice Spomer and Justice Stewart concurred in the judgment
and opinion.
OPINION
¶1 The defendant, Melissa J. Weiser, appeals her sentence for aggravated driving under the
influence (aggravated DUI). She argues that (1) the court lacked authority to sentence her
because it did not first enter a judgment of conviction on her guilty plea, (2) her 20-year
sentence is excessive, (3) her convictions on 31 of the 32 counts in the indictment must be
vacated, and (4) she is entitled to a $5-per-day credit against her DUI equipment fund
assessment for the time she spent in custody prior to sentencing. We affirm the defendant’s
sentence, vacate her convictions on the 31 charges on which sentence was not imposed, and
amend the order to reflect a credit against the DUI equipment fund assessment.
¶2 In the early morning hours of May 24, 2009, a vehicle driven by the defendant ran a stop
sign and collided with a Cadillac Escalade carrying seven people. Three of the people in the
Escalade died as a result of their injuries. Four others sustained serious injuries. Chaz
Sargent, the defendant’s boyfriend, was a passenger in the defendant’s vehicle. He was
thrown from the vehicle and died as a result of his injuries. The defendant was also injured.
A blood draw taken at the hospital indicated that she had a blood-alcohol concentration of
.136 at the time of the collision. The blood draw also indicated the presence of THC in her
blood.
¶3 On September 15, 2009, a grand jury indicted the defendant on 32 counts of aggravated
DUI. The indictment charged the defendant with aggravated DUI under four different
theories with respect to each of the eight victims. See 625 ILCS 5/11-501(a)(1), (a)(2), (a)(5),
(a)(6), (d)(1)(F) (West 2008).
¶4 On February 4, 2010, the defendant pled guilty to all 32 counts of the indictment in an
open plea. At the guilty plea hearing, the court went through each count of the indictment and
explained to the defendant what the State would be required to prove if she were to plead not
guilty and insist on going to trial. The court further explained to the defendant what rights
she was giving up by pleading guilty. The court admonished the defendant regarding the
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range of possible sentences. The defendant indicated that she understood the charges and her
trial rights and that she wanted to plead guilty.
¶5 The prosecutor then presented the factual basis for the charges. He told the court that the
testimony of police officers who interviewed the defendant and witnesses who were with her
the day before the accident would show that the defendant had been drinking alcohol and
smoking marijuana that day. An accident reconstructionist would testify that the vehicle
driven by the defendant ran a stop sign and made no attempt to stop before hitting the
Escalade. The accident reconstructionist would further testify that the Escalade was traveling
at approximately 31 miles per hour, while the defendant’s vehicle was traveling at
approximately 57 miles per hour.
¶6 The State’s evidence would further show that the defendant’s passenger, Chaz Sargent,
and three passengers in the Escalade died as a result of their injuries, and the remaining four
passengers in the Escalade sustained serious injuries. In addition, the State would present
evidence that a blood draw taken from the defendant showed a blood-alcohol concentration
of .136 and the presence of THC.
¶7 The court found that a factual basis existed for each charge and accepted the defendant’s
plea. The court scheduled a sentencing hearing and ordered the preparation of a presentence
investigation report (PSI or PSR). A docket entry states: “[The defendant] pleads guilty to
each count. Sentencing hearing on 4/5/10 at 1:00 p.m. PSR ordered.”
¶8 The court held a sentencing hearing on April 5, 2010. The defendant testified that she
never intended to harm anyone. She further testified that she remembered drinking beer,
smoking marijuana, and becoming intoxicated on the day of the collision, but she did not
remember driving that night. Asked by her attorney if she acknowledged that she was, in fact,
driving, she replied, “I don’t know because I don’t remember, but science says I was driving
so I take responsibility for it.” She testified that she had three young children. Prior to being
incarcerated on the charges in this case, she was their caregiver. Now one child lived with
his father, while the other two lived with the defendant’s mother. The defendant
acknowledged on cross-examination that she had five prior convictions of driving without
liability insurance and three prior convictions for driving while her license was suspended.
She also acknowledged that her children were being cared for by people she trusted.
¶9 When given an opportunity to make a statement in allocution, the defendant stated:
“I don’t know if it will reflect on the sentence, but I would like to say I am sorry. I never
meant for any of this to happen. If I could take it back I so would. If I could take
everybody’s physical and emotional pain away I would. I don’t blame the families if they
hate me. I am sorry. That’s it.”
¶ 10 The court also considered the PSI report. The report is lengthy, and we need not set out
its contents in detail. In relevant part, the PSI indicated that the defendant told the probation
officer who prepared the report that she believed she was not driving because Chaz Sargent
ordinarily took her keys from her if she was too intoxicated to drive. The PSI also indicated
that the friends who were with Chaz and defendant prior to the crash stated that both Chaz
and the defendant were intoxicated before they left to get beer and that some of them told the
defendant she was too intoxicated to drive.
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¶ 11 Before pronouncing sentence, the court gave a detailed explanation of its findings with
respect to the relevant factors in mitigation and aggravation. The court first noted that the
defendant likely did not contemplate that her conduct would cause harm (730 ILCS 5/5-5-
3.1(a)(2) (West 2008)). The court stated that “the defendant in all likelihood didn’t
contemplate anything.” The court noted, however, that evidence in the PSI showed that Chaz
Sargent offered to drive and asked the defendant for her keys, and that Sargent as well as
other friends told the defendant that she was too intoxicated to drive. Against this
background, the court concluded that the defendant acted with reckless disregard for the
safety of others.
¶ 12 The court next considered the defendant’s history (730 ILCS 5/5-5-3.1(a)(7) (West
2008)). The court noted that the defendant had never been convicted of any crime of violence
or dishonesty. However, the court also pointed out that the defendant had five convictions
for driving without insurance and “numerous other traffic citations.” The court found that
this history shows “a disregard at least for the traffic code.”
¶ 13 The court next considered whether the charges were the result of circumstances that were
unlikely to recur (730 ILCS 5/5-5-3.1(a)(8) (West 2008)) and whether the character and
attitudes of the defendant indicated that further offenses were unlikely (730 ILCS 5/5-5-
3.1(a)(9) (West 2008)). The court first noted that the defendant’s statements regarding
whether she was driving the car indicate a “limited acceptance of responsibility” for her
actions. The court also considered the defendant’s history of traffic offenses in finding that
the defendant was likely to reoffend and, therefore, neither of these mitigating factors was
applicable.
¶ 14 The court next considered whether a lengthy prison term would impose excessive
hardship on the defendant’s dependants (730 ILCS 5/5-5-3.1(a)(11) (West 2008)). The court
acknowledged that sentencing the defendant to a lengthy prison term would cause hardship
to her three young children. The court noted, however, that the burden on the defendant’s
children would not be greater than the hardship encountered by the dependants of any
criminal defendant sentenced to a prison term.
¶ 15 The court also noted that there were two nonstatutory factors in mitigation for it to
consider–the defendant’s expressions of remorse and the fact that she pled guilty. The court
noted that it was not clear how much of the defendant’s remorse was due to the impact on
the families of the eight victims and how much was due to the impact on her own life. The
court further noted that the mitigating effect of the defendant’s guilty plea was “somewhat
limited” by the fact that she did not take full responsibility for her actions.
¶ 16 The court found two factors in aggravation. First, the court considered the serious bodily
harm suffered by the four people who were injured in the crash but survived (730 ILCS 5/5-
5-3.2(a)(1) (West 2010)). The court noted, however, that the death of two or more victims
is part of the offense. The court explained that it was therefore not considering their deaths
as a factor in aggravation. The court also found that the need to deter others from committing
the same offense warranted a lengthy prison term (730 ILCS 5/5-5-3.2(a)(7) (West 2010)).
In support of this finding, the court noted that there had been numerous newspaper articles
covering the collision at issue in the defendant’s case, but the number of DUI cases before
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the court had not decreased.
¶ 17 In balancing the factors, the court noted that the minimum sentence would not be
appropriate because of the “horrific nature” of the outcome of the collision at issue. The
court also noted, however, that the statutory maximum would be inappropriate due to the
defendant’s limited criminal history. The court sentenced the defendant to 20 years. That
same day, the court entered a written judgment order sentencing the defendant to 20 years
in prison on count III of the indictment.
¶ 18 The defendant filed a pro se motion to withdraw her guilty plea. She alleged that her plea
was not knowing and voluntary due to ineffective assistance of plea counsel. A new attorney
was appointed to represent her. Through counsel, the defendant withdrew her motion to
withdraw her plea and filed a motion to reduce sentence.
¶ 19 At the hearing on that motion, the court clarified its previous findings at the sentencing
hearing with respect to three of the factors it considered–the defendant’s limited acceptance
of responsibility for her actions, her expressions of remorse, and the hardship on her children.
The court emphasized the defendant’s numerous statements regarding whether she was
driving when the crash occurred and explained that these statements indicated that even by
the time of the sentencing hearing, the defendant did not “fully accept that she was driving
the vehicle on the night in question.” The court stated that it was aware that her 20-year
sentence would keep the defendant from raising her three children, but found that the
sentence was still appropriate in light of the nature of the offense.
¶ 20 The court then acknowledged that “perhaps” it did not “express itself clearly enough with
regard to the issue of expressions of remorse by Ms. Weiser.” The court noted that the
defendant “broke down several times” at her plea hearing and “expressed considerable
emotional torment during her sentencing hearing.” The court explained that while it “did and
does recognize [these] expressions of remorse,” this did not alter the court’s conclusion that
a 20-year sentence was appropriate “considering the horrific nature of this offense.” The
court denied the motion. This appeal followed.
¶ 21 The defendant first argues that the court lacked jurisdiction to sentence her because it did
not first enter a judgment of conviction. In support of her contention, she cites this court’s
decision in People v. Vaughn, 92 Ill. App. 3d 913, 416 N.E.2d 681 (1981). There, we held
that a “trial court does not obtain jurisdiction to sentence the defendant until it enters a
judgment of conviction.” Vaughn, 92 Ill. App. 3d at 915, 416 N.E.2d at 683. Resolution of
the defendant’s argument turns on what this court meant by “judgment of conviction” in
Vaughn. For the reasons that follow, we believe she misconstrues this holding.
¶ 22 In Vaughn, the defendant was tried by a jury. In a docket entry, the court stated that the
jury announced in open court that it found him guilty. The court went on to state: “ ‘Jury
discharged. Cause set for sentencing hearing ***.’ ” Vaughn, 92 Ill. App. 3d at 914, 416
N.E.2d at 682. The defendant argued on appeal that the trial court had failed to enter a
judgment on the jury’s verdict (Vaughn, 92 Ill. App. 3d at 913, 416 N.E.2d at 682), while the
State argued that the judgment in a criminal case is the sentence (Vaughn, 92 Ill. App. 3d at
914, 416 N.E.2d at 683).
¶ 23 In agreeing with the defendant, this court noted that the relevant statutes define a
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“judgment” in a criminal trial as “ ‘an adjudication by the court that the defendant is guilty
or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence
pronounced by the court.’ ” Vaughn, 92 Ill. App. 3d at 914, 416 N.E.2d at 683 (quoting Ill.
Rev. Stat. 1979, ch. 38, ¶¶ 102-14, 1005-1-12 (now 725 ILCS 5/102-14 (West 2012) and 730
ILCS 5/5-1-12 (West 2012))). We explained that this means that although the sentence is a
necessary component of a complete judgment of conviction, “it is not sufficient to constitute
the entirety of a judgment.” Vaughn, 92 Ill. App. 3d at 914, 416 N.E.2d at 683. Rather, we
explained, “the court must make an adjudication that the defendant is guilty.” Vaughn, 92
Ill. App. 3d at 915, 416 N.E.2d at 683. In the context of a jury trial, this adjudication means
the court must accept the verdict of the jury. Vaughn, 92 Ill. App. 3d at 914, 416 N.E.2d at
683.
¶ 24 The Vaughn court elaborated further, explaining that the verdict of the jury reflects only
the jury’s factual findings. Before a defendant can actually be adjudicated guilty, the court
must determine whether that verdict is consistent with applicable law and supported by the
evidence, and must rule on any posttrial motions. Vaughn, 92 Ill. App. 3d at 914, 416 N.E.2d
at 683. For this reason, a jury verdict does not become final until the court makes these
determinations and accepts the verdict (Vaughn, 92 Ill. App. 3d at 914, 416 N.E.2d at 683),
and the court is not authorized to impose a sentence until it does (Vaughn, 92 Ill. App. 3d at
915, 416 N.E.2d at 683).
¶ 25 The Vaughn court further explained that the court’s acceptance of the jury’s verdict
“cannot *** come in the form of any further action consistent with the verdict, such as
sentencing the defendant or ruling on post-trial motions, but must be an explicit judgment
apparent of record.” Vaughn, 92 Ill. App. 3d at 914, 416 N.E.2d at 683. However, the
Vaughn decision provides little guidance as to what form that explicit judgment of record
must take. The record on appeal in Vaughn did not include transcripts from any of the
proceedings that took place after the parties gave their closing arguments at trial but before
the sentencing hearing. Vaughn, 92 Ill. App. 3d at 914, 416 N.E.2d at 682. As previously
noted, the record contained a docket entry, which indicated only that the jury had returned
a verdict of guilty and that the court set the matter for a sentencing hearing. Vaughn, 92 Ill.
App. 3d at 914, 416 N.E.2d at 682. There was, then, nothing in the record to indicate whether
the trial court had made the determinations required of it in order to accept the jury’s verdict
and adjudicate the defendant guilty. See Vaughn, 92 Ill. App. 3d at 915, 416 N.E.2d at 683
(explaining that sentencing must follow a “ ‘determination of guilt’ ” (quoting Ill. Rev. Stat.
1979, ch. 38, ¶ 1005-4-1(a) (now 730 ILCS 5/5-4-1(a) (West 2012)))). As such, the court did
not need to determine what was necessary to satisfy the requirement that the trial court make
an “explicit judgment apparent of record.”
¶ 26 We find guidance in this regard from the First District’s decision in People v. Medrano,
282 Ill. App. 3d 887, 669 N.E.2d 114 (1996), overruled on other grounds as recognized by
People v. Thompson, 331 Ill. App. 3d 948, 957, 773 N.E.2d 15, 23-24 (2002). There, a jury
found a defendant guilty of three counts of aggravated criminal sexual assault. The three
charges were based on alternate theories but stemmed from the same act. Medrano, 282 Ill.
App. 3d at 890, 669 N.E.2d at 116. The trial judge stated on the record “that he was ‘going
to enter judgment’ ” on all three charges, but the final written order showed that the
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defendant was sentenced on only one charge. Medrano, 282 Ill. App. 3d at 890, 669 N.E.2d
at 116. The defendant argued that this record showed that judgments of conviction were
entered on all three guilty verdicts, and two had to be vacated pursuant to the one-act, one-
crime rule. Medrano, 282 Ill. App. 3d at 890, 669 N.E.2d at 116. (We note parenthetically
that the defendant in this case makes this same argument regarding the convictions on the 31
other counts of the indictment. The final written judgment order sentencing the defendant
does not indicate that she was convicted on any of the counts of the indictment other than
count III.)
¶ 27 After citing this court’s decision in Vaughn, the Medrano court explained that “[w]hile
imposition of a sentence completes the judgment and makes it final for purposes of an
appeal, a judgment of conviction is rendered once the trial court adjudicates a defendant
guilty.” Medrano, 282 Ill. App. 3d at 891, 669 N.E.2d at 117. The First District concluded
that the trial court’s statement that it was “going to” enter judgment on all three guilty
verdicts was sufficiently explicit to constitute a judgment of the defendant’s guilt on all three
counts. Medrano, 282 Ill. App. 3d at 891, 669 N.E.2d at 117.
¶ 28 Here, as previously noted, a docket entry recorded after the defendant’s plea hearing
merely states that the defendant pled guilty and set a sentencing hearing. Pursuant to Vaughn,
this is not sufficiently explicit to constitute an adjudication of the defendant’s guilt.
However, the transcript of the plea hearing shows that the court expressly found that a factual
basis existed for the defendant’s plea and that the court accepted her plea only after
determining that the defendant understood both the charges against her and the rights she was
giving up by pleading guilty. It is clear from the court’s statements that it made the
determinations necessary to accept the defendant’s plea. Thus, it is apparent from the record
that the court made the determination necessary to adjudicate the defendant guilty before
sentencing her. Under Medrano, then, we find that this constitutes an adjudication of guilt
“apparent of record.” We therefore conclude the court had the authority to sentence the
defendant.
¶ 29 The defendant next argues that the court abused its discretion in sentencing her to 20
years in prison. She argues that the court overlooked mitigating factors such as her youth, her
lack of prior felony convictions, her expressions of remorse, and the hardship a lengthy
prison term would impose on her children. She also argues that the court’s emphasis on the
need to deter others is based on conjecture. We disagree.
¶ 30 Determining the appropriate sentence in a criminal case is a matter involving judicial
discretion. This discretion allows trial courts to take into account the particular circumstances
of each case. People v. O’Neal, 125 Ill. 2d 291, 297, 531 N.E.2d 366, 368 (1988). A trial
court’s sentencing decision is therefore “entitled to great deference,” and we will not alter
or reduce a defendant’s sentence absent an abuse of that discretion. People v. Dominguez,
255 Ill. App. 3d 995, 1002, 626 N.E.2d 775, 781 (1994).
¶ 31 In exercising its discretion, a trial court must consider all relevant factors in mitigation.
730 ILCS 5/5-5-3.1(a) (West 2010) (providing that the statutory factors in mitigation “shall
be accorded weight” (emphasis added)); see also Dominguez, 255 Ill. App. 3d at 1004, 626
N.E.2d at 782 (noting that a court’s decision is entitled to deference unless the court
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“ignore[s] pertinent mitigating factors”). If the record contains evidence of mitigating factors,
we presume that the court considered this evidence unless there is “some indication, other
than the sentence imposed, to the contrary.” People v. Tye, 323 Ill. App. 3d 872, 890, 753
N.E.2d 324, 341 (2001) (citing People v. Morgan, 306 Ill. App. 3d 616, 633, 713 N.E.2d
1203, 1215 (1999)). As long as the court takes into account mitigating evidence before it, it
has broad discretion in weighing and balancing the relevant factors. People v. Madura, 257
Ill. App. 3d 735, 740, 629 N.E.2d 224, 228 (1994). We will not find an abuse of this
discretion merely because we might have balanced the factors differently. Dominguez, 255
Ill. App. 3d at 1002, 626 N.E.2d at 781.
¶ 32 The trial court must also “balance the retributive and rehabilitative purposes of the
punishment.” People v. Cooper, 283 Ill. App. 3d 86, 95, 669 N.E.2d 637, 643-44 (1996).
This balance requires the court to take into account both the seriousness of the offense and
the defendant’s potential for rehabilitation. Cooper, 283 Ill. App. 3d at 95, 669 N.E.2d at
644. However, the court is not required to give more weight to the defendant’s potential for
rehabilitation than it gives to aggravating factors, such as the seriousness of the offense. The
seriousness of the offense is one of the most important factors for the court to consider. Tye,
323 Ill. App. 3d at 890, 753 N.E.2d at 341.
¶ 33 Here, the sentencing range prescribed by statute for aggravated DUI is 6 to 28 years. 625
ILCS 5/11-501(d)(2)(G) (West 2008). When a sentence imposed falls within the statutorily
prescribed range, we will not find it to be excessive or an abuse of the trial court’s discretion
unless the sentence “greatly varies [from] the spirit and purpose of the law or is manifestly
disproportionate to the nature of the offense.” People v. Brazziel, 406 Ill. App. 3d 412, 433-
34, 939 N.E.2d 989, 1008 (2010) (citing People v. Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d
626, 629 (2000)); see also People v. Moore, 41 Ill. App. 3d 3, 4, 353 N.E.2d 191, 192 (1976)
(noting that a sentence within the range prescribed by statute is presumed not to be arbitrary).
However, we may find an abuse of discretion if the sentence imposed “is at odds with the
purpose and spirit of the law” even if it is within the statutory range. People v. Evans, 143
Ill. App. 3d 236, 242, 492 N.E.2d 1036, 1040 (1986).
¶ 34 The defendant contends that the court did not find any evidence in mitigation. Although
the State, in its brief, agrees with this characterization of the record, we do not. Earlier, we
set out in detail the court’s findings at the sentencing hearing. As we discussed, the court
analyzed the statutory factors in mitigation in great detail. The court did find that certain
factors in mitigation were not present–specifically, the court found that there was no
evidence that (1) the defendant’s character and attitudes indicated that further offenses were
unlikely (see 730 ILCS 5/5-5-3.1(a)(9) (West 2008)), (2) the offense took place under
circumstances unlikely to recur (see 730 ILCS 5/5-5-3.1(a)(8) (West 2008)), or (3) the
defendant’s conduct did not result in serious physical harm to anyone (see 730 ILCS 5/5-5-
3.1(a)(1) (West 2008)). However, the court found that other factors were present but that the
mitigating effect of some of these factors was somewhat limited by various facts. As noted,
these factors include the defendant’s guilty plea, her expressions of remorse, the hardship to
her children, and her limited previous criminal history. Thus, we find that the court properly
considered the evidence in mitigation that was presented to it.
¶ 35 The defendant further contends that the court overlooked certain factors. As previously
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discussed, the court expressly considered most of the factors she contends it overlooked–that
is, the court explicitly addressed the defendant’s remorse, her limited prior criminal history,
and the fact that her children would experience hardship as a result of her prison term.
Significantly, the court stated that the maximum sentence permitted by statute would not be
appropriate in light of the defendant’s limited criminal history, but also noted that the
mitigating effect of this factor was offset to some extent because the defendant’s history of
numerous traffic violations indicated a disregard for the laws in the Illinois Vehicle Code.
The court further found that neither the defendant’s expressions of remorse nor the hardship
imposed on her children justified a sentence shorter than 20 years considering the nature of
the offense. We note that there is no requirement that a trial court explicitly assign a weight
or value to each factor it considers. Brazziel, 406 Ill. App. 3d at 434, 939 N.E.2d at 1009. We
find that the court adequately considered each of these factors.
¶ 36 The defendant also contends that the court overlooked her youth and rehabilitative
potential. It is true that the court did not discuss the defendant’s age or use the phrase
“rehabilitative potential.” As previously discussed at length, however, the court did address
evidence relevant to the defendant’s rehabilitative potential. The court considered the extent
to which the defendant took responsibility for her actions, the likelihood that she would
reoffend, and her expressions of remorse. See Evans, 143 Ill. App. 3d at 242, 492 N.E.2d at
1040 (noting that remorse is relevant to a defendant’s rehabilitative potential). As we have
already stated, the court found that the defendant accepted only limited responsibility for her
actions and that she was likely to reoffend based on the evidence in the PSI. The court
considered the defendant’s remorse a factor in mitigation, but did not believe that it required
a sentence of less than 20 years considering the nature of the offense. For the reasons we
have already discussed, we find no abuse of the court’s discretion in reaching these
conclusions.
¶ 37 We likewise find no merit to the defendant’s contention that the court overlooked her
youth. The defendant was 27 years old when the offense occurred and 28 years old when she
was sentenced. She acknowledges that she was “perhaps not youthful, but still young enough
to be restored to productive citizenship.” We do not believe that she was so young that the
court was required to find her actions to be the result of youthful indiscretion. In addition,
many of the other factors considered by the court indicated that the defendant’s rehabilitative
potential was minimal. We find that the court was justified in concluding that any
rehabilitative potential the defendant may have had was outweighed by the seriousness of the
offense.
¶ 38 The defendant also argues that the court’s finding that a lengthy sentence was needed to
deter others from committing the same crime was based on conjecture. The actual deterrent
effect of a sentence is, necessarily, always somewhat speculative. However, it is still a proper
factor to consider. The court gave its reasons for finding a lengthy prison term necessary to
deter others from committing aggravated DUI. We do not find the court’s reliance on this
factor inappropriate. We also note that while the sentence imposed was in the upper half of
the statutory range for the offense, it was eight years below the maximum sentence. In light
of all the circumstances we have discussed, we do not find this sentence to be excessive. We
find no abuse of the trial court’s discretion.
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¶ 39 The defendant next argues that her convictions on 31 of the 32 counts of aggravated DUI
must be vacated for two reasons. First, she contends, the court imposed sentence only on
count III, and a conviction without a sentence is an incomplete judgment which must be
vacated. See People v. Cunningham, 365 Ill. App. 3d 991, 994, 851 N.E.2d 653, 655 (2006).
Moreover, convictions on multiple counts based on the same act violate the one-act, one-
crime rule. See People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977). The
State concedes that the 31 additional convictions must be vacated on the basis of the one-act,
one-crime rule. We agree.
¶ 40 Finally, the defendant argues that she is entitled to a $5-per-day credit against her $500
DUI equipment fund assessment because the assessment is really a fine. See 725 ILCS 5/110-
14(a) (West 2008). She argues that, although the statute under which the assessment was
imposed refers to it as an “assessment” rather than a “fine” (see 625 ILCS 5/11-501.01 (West
2008)), it is in substance a fine because it is intended to be punitive (see People v. Jones, 223
Ill. 2d 569, 582, 861 N.E.2d 967, 975 (2006)). The State concedes that the defendant is
entitled to this relief, and we agree.
¶ 41 For the reasons stated, we affirm the defendant’s sentence on count III of the indictment.
Pursuant to our authority under Illinois Supreme Court Rule 366(a)(1) (eff. Feb. 1, 1994),
we vacate her convictions on the 31 remaining counts of the indictment and amend the
mittimus to reflect a $5-per-day credit for the 224 days the defendant spent in custody prior
to sentencing.
¶ 42 Affirmed as modified.
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