People v. Hughey , 2022 IL App (4th) 210379-U ( 2022 )

NOTICE FILED
This Order was filed under 2022 IL App (4th) 210379-U April 26, 2022
Supreme Court Rule 23 and is Carla Bender
not precedent except in the
NO. 4-21-0379 4th District Appellate
limited circumstances allowed
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
ALAN M. HUGHEY, ) No. 19CF1387
Defendant-Appellant. )
) Honorable
) Ronda D. Holliman,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Presiding Justice Knecht and Justice Cavanagh concurred in the judgment.
ORDER
¶1 Held: Defendant is entitled to vacatur of one of his aggravated DUI convictions under
the one-act, one-crime rule, but he did not establish error as to his remaining
conviction and sentence.
¶2 In September 2019, the State charged defendant, Alan M. Hughey, by information
with two counts of aggravated driving under the influence (DUI) of alcohol (625 ILCS
5/11-501(d)(2)(C) (West 2018)), a Class 2 felony, based on defendant having three prior DUI
convictions. After a March 2021 jury trial, the jury found defendant guilty of both counts.
Defendant filed a motion for acquittal or, in the alternative, a new trial. At a joint July 2021
hearing, the Champaign County circuit court denied defendant’s posttrial motion and then
addressed sentencing. The State presented evidence of defendant’s three prior DUI convictions,
and the parties agreed defendant was subject to Class 2 sentencing, which is a sentencing range
of three to seven years in prison (730 ILCS 5/5-4.5-35(a) (West 2018)). After hearing the
parties’ arguments, the court sentenced defendant to two concurrent prison terms of five years.
Defendant filed a motion to reconsider his sentence, which the court denied.
¶3 Defendant appeals, contending (1) the State’s evidence was insufficient to prove
him guilty beyond a reasonable doubt of aggravated DUI; (2) one of his aggravated DUI
convictions should be vacated under the one-act, one-crime rule; and (3) the trial court erred by
failing to consider a statutory mitigating factor in sentencing him. We affirm in part and remand
in part.
¶4 I. BACKGROUND
¶5 The State’s two charges alleged defendant committed the offense of aggravated
DUI under section 11-501(d)(2)(C) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS
5/11-501(d)(2)(C) (West 2018)), when he was driving or in actual physical control of a motor
vehicle on July 12, 2019. The charges also asserted defendant had three times previously
committed violations of the DUI statute or a similar provision. Specifically, count I contended
defendant was under the influence of alcohol when he drove or was in control of a motor vehicle
(625 ILCS 5/11-501(a)(2) (West 2018)), and count II alleged defendant had an alcohol
concentration in his blood or breath of 0.08 or more when he drove or was in control of a motor
vehicle (625 ILCS 5/11-501(a)(1) (West 2018)).
¶6 In March 2021, the trial court held a jury trial on the two charges. The State did
not present any evidence regarding defendant’s prior DUI convictions, and the jury instructions
were for DUI with no mention of the prior DUI convictions (see Illinois Pattern Jury
Instructions, Criminal, Nos. 23.17 through 23.20 (approved Dec. 8, 2011)). The jury found
defendant guilty of both counts. After the verdict, the State moved to revoke defendant’s bond,
noting defendant had been found guilty of nonprobationable Class 2 felonies. Defense counsel
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objected but did recognize the minimum sentence was three years’ imprisonment. The court
granted the State’s motion to revoke defendant’s bond, noting the offense was nonprobationable.
Defendant filed a timely posttrial motion.
¶7 On May 13, 2021, the trial court held a joint hearing on defendant’s posttrial
motion and sentencing. After hearing the parties’ arguments, the court denied defendant’s
posttrial motion. The court began the sentencing hearing by having the State provide evidence of
defendant’s prior DUI convictions. The court admitted the State’s exhibits, which included
defendant’s certified driving abstracts for Illinois and Tennessee. Defendant raised no objections
to the State’s exhibits. He also presented a letter from Jim Pierce, who described defendant as a
good friend and a hard worker. The presentence investigation report stated defendant was 66
years old. Defendant described his current physical condition as “ ‘fair’ ” and reported he had
been suffering from a hernia since November 2020 because of some heavy lifting. He was
taking ibuprofen as needed while in jail for the hernia pain. Defendant did not report taking any
medications prescribed by a doctor or any history of serious illnesses.
¶8 The State argued defendant should receive the maximum sentence of seven years
and noted his conduct threatened serious harm, his criminal record, and his drinking problem
which he would not acknowledge. The State also argued a lengthy sentence was needed to deter
others from repeatedly driving while impaired. Defense counsel asked the court to sentence
defendant to the minimum sentence of three years’ imprisonment. He noted defendant’s hernia
had worsened since his incarceration. Defense counsel also stated defendant had a difficult
childhood, was a hard worker, and was not a career criminal.
¶9 Defendant spoke in allocution and stated he was 67 years old. He noted his hernia
was getting much worse, and he took two ibuprofen tablets twice a day to keep the swelling
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down. The prison doctor told defendant the hernia needed to be “stitched up.” Defendant also
had an issue with his teeth and still needed surgery so his dentures would fit properly. Moreover,
due to exposure to chemicals during his various jobs, defendant had some breathing issues.
Defendant also explained he had a good work history and a good driving record as a truck driver.
¶ 10 After hearing all the arguments and evidence, the trial court sentenced defendant
to two concurrent prison terms of five years. The court believed neither the minimum nor the
maximum sentence was appropriate. It noted the maximum was not appropriate when giving
due consideration to all the factors in mitigation, such as defendant’s long history of
employment, his age, the fact he had never committed a DUI while truck driving, his long
history of successful truck driving, and the fact he was a good friend to Pierce. The court did not
find any statutory mitigating factors applied.
¶ 11 On June 7, 2021, defendant filed a timely motion to reconsider his sentence,
asserting his sentence was excessive in light of his medical issues. He also argued the trial court
gave inadequate consideration to his health condition as a mitigating factor. After a July 1, 2021,
hearing, the court denied defendant’s motion to reconsider his sentence.
¶ 12 On July 1, 2021, defendant filed his timely notice of appeal in compliance with
Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). Accordingly, this court has jurisdiction of
defendant’s appeal under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013).
¶ 13 II. ANALYSIS
¶ 14 A. Sufficiency of the Evidence
¶ 15 Defendant contends the State’s evidence was insufficient to prove beyond a
reasonable doubt he committed the offense of aggravated DUI because the State failed to present
any evidence of his prior DUI convictions at trial. Specifically, he argues the structure of the
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DUI statute, which contains a separate subsection for aggravated DUI (see 625 ILCS 5/11-501(d)
(West 2018)), indicates a clear legislative intent to make a defendant’s prior convictions
necessary elements of the offense of aggravated DUI. Defendant recognizes, in People v. May,
2021 IL App (4th) 190893, leave to appeal denied, No. 127737 (Ill. Jan. 26, 2022), this court
construed subsection (d) of the DUI statute, as setting forth sentencing enhancement factors and
not essential elements of the charged offenses. See May, 2021 IL App (4th) 190893, ¶ 32.
However, he asserts May and another case, People v. Robinson, 368 Ill. App. 3d 963, 859 N.E.2d
232 (2006), were wrongly decided. The State disagrees and contends it was not required to
present evidence at defendant’s trial of defendant’s prior DUI convictions. Since defendant is
raising a matter of statutory interpretation, we review the matter de novo. See May, 2021 IL App
(4th) 190893, ¶ 28.
¶ 16 Only one of the cases defendant cites addresses subsection (d)(2) of the DUI
statute (625 ILCS 5/11-501(d)(2) (West 2018)), which is at issue in this case. In People ex rel.
Glasgow v. Carlson, 2016 IL 120544, ¶ 1, 72 N.E.3d 340, the Illinois Supreme Court awarded
mandamus and compelled the trial judge to, inter alia, classify the defendant’s third violation of
the DUI statute as a Class 2 felony under section 11-501(d)(2)(B) (625 ILCS 5/11-501(d)(2)(B)
(West 2014)). In that case, the trial judge found the defendant guilty of aggravated DUI but
continued sentencing and postponed its review of the defendant’s prior DUI convictions and
additional criminal history. Glasgow, 2016 IL 120544, ¶ 4. At the sentencing hearing, the trial
judge expressed skepticism about whether the defendant’s DUI conviction should be classified as
a Class 2 felony for sentencing purposes. Glasgow, 2016 IL 120544, ¶ 5. In response, the State
first provided the judge with certified copies of the defendant’s prior DUI convictions. Glasgow,
2016 IL 120544, ¶ 6. The judge ultimately sentenced the defendant as a Class 4 offender.
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Glasgow, 2016 IL 120544, ¶ 10. In granting mandamus, the supreme court concluded the
defendant’s third DUI conviction constituted aggravated DUI and must be treated as a Class 2
felony under the plain language of section 11-501(d)(2)(B). Glasgow, 2016 IL 120544, ¶ 30.
Given the State presented evidence of the defendant’s prior DUI convictions at the sentencing
hearing, we disagree with defendant the Glasgow decision suggests the prior convictions are
elements of the crime that must be proved at trial.
¶ 17 After reviewing the other cases cited by defendant and considering his arguments,
we continue to follow our decision in May and find the State was not required to prove
defendant’s prior DUI convictions at defendant’s jury trial.
¶ 18 B. One-Act, One-Crime Rule
¶ 19 Defendant next asserts his aggravated DUI conviction for count II should be
vacated for violating the one-act, one-crime rule. He recognizes he did not preserve this issue
and requests we review it under the second prong of the plain-error doctrine (Ill. S. Ct. R. 615(a)
(eff. Jan. 1, 1967)). See May, 2021 IL App (4th) 190893, ¶ 53 (excusing the defendant’s
forfeiture under the second prong of the plain-error doctrine for a violation of the one-act, one-
crime rule). The State agrees one of defendant’s aggravated DUI convictions should be vacated
and the issue is reviewable under the second prong of the plain-error doctrine. However, the
State believes we should vacate count I because count II seems to be the more culpable offense.
¶ 20 “The one-act, one-crime rule prohibits convictions for multiple offenses that are
based on precisely the same physical act.” People v. Smith, 2019 IL 123901, ¶ 13, 155 N.E.3d
396. For the purpose of the one-act, one-crime rule, our supreme court has defined an “act” as
“any overt or outward manifestation which will support a different offense.” People v. King, 66
Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977). We review de novo an alleged violation of the
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one-act, one-crime rule. Smith, 2019 IL 123901, ¶ 15.
¶ 21 Illinois courts have interpreted the one-act, one-crime rule to prohibit convicting a
defendant of the following: (1) multiple counts of reckless homicide, premised on drunken
driving, where a single victim was killed; or (2) multiple counts of DUI brought under multiple
subsections of the DUI statute for a single instance of driving; or (3) multiple counts of an
aggravated offense based on the same aggravating circumstance. People v. Cook, 2011 IL App
(4th) 090875, ¶ 35, 957 N.E.2d 563. In Cook, 2011 IL App (4th) 090875, ¶ 36, this court found
the one-act, one-crime rule applied where all three counts of DUI were based on a single death
resulting from a single instance of driving. Cook, 2011 IL App (4th) 090875, ¶ 36. Here, both
DUI counts were based on a single act of defendant’s driving under the influence, and thus we
agree with the parties the one-act, one-crime rule applies.
¶ 22 Our supreme court has “always held” that, under the one-act, one-crime doctrine,
a court should impose the sentence on the more serious offense and vacate the less serious
offense. (Internal quotation marks omitted.) People v. Artis, 232 Ill. 2d 156, 170, 902 N.E.2d
677, 686 (2009). In determining which offense is the most serious, the supreme court has
instructed courts to consider the plain language of the statutes because the legislature prescribes
greater punishment for the offense it deems the more serious. Artis, 232 Ill. 2d at 170, 902
N.E.2d at 686. Where the offenses provide for identical punishments, the supreme court has
remanded the cause to the trial court to determine which conviction should be retained. Artis,
232 Ill. 2d at 170, 902 N.E.2d at 686. “However, in situations where the degree of the offenses
and their sentencing classifications are identical, this court has also considered which of the
convictions has the more culpable mental state.” Artis, 232 Ill. 2d at 170-71, 902 N.E.2d at 686.
¶ 23 Here, the State asserts count II, which requires a blood or breath alcohol
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concentration above 0.08, is the more culpable offense but does not specifically address mental
state. We note DUI is an absolute liability offense (People v. Avery, 277 Ill. App. 3d 824, 830,
661 N.E.2d 361, 366 (1995)), and thus neither offense can have a more culpable mental state.
Citing Cook, 2011 IL App (4th) 090875, ¶ 36, where this court vacated the counts the defendant
requested, defendant contends his preference on which count to vacate should control. However,
the Cook court did not explain its departure from the principle set forth in Artis, generally
requiring remand when the multiple offenses have identical punishments. We note our supreme
court has followed that principle in Artis even when the sentencing order did not need to be
amended because only one sentence was imposed for two guilty findings. See In re Samantha
V., 234 Ill. 2d 359, 379-80, 917 N.E.2d 487, 500 (2009) (remanding the cause for the trial court
to determine the count to vacate where the juvenile defendant was found guilty of two counts and
ordered to serve a single term of probation). Thus, we remand the cause to the circuit court to
determine which count of aggravated DUI is the less serious one, vacate the conviction on that
offense, and amend the sentencing judgment to reflect only one conviction and sentence for
aggravated DUI.
¶ 24 C. Sentencing
¶ 25 Last, defendant contends the trial court erred by failing to consider the statutory
mitigating factor that imprisonment of the defendant would endanger his or her medical
condition (see 730 ILCS 5/5-5-3.1(a)(12) (West 2018)) in sentencing him. Defendant asserts he
is entitled to resentencing. The State asserts defendant has forfeited this issue, and in the
alternative, contends the trial court adequately considered defendant’s physical health at
sentencing.
¶ 26 The trial court possesses wide latitude in both determining and weighing factors
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in mitigation and aggravation when exercising its discretion and imposing sentence, and the
reviewing court gives the trial court’s ruling great weight and deference. People v. Solis, 2019
IL App (4th) 170084, ¶ 23, 138 N.E.3d 247. When, as in this case, the imposed sentence falls
within the statutory sentencing range, the reviewing court will not disturb the trial court’s
sentence unless its imposition constitutes an abuse of discretion. Solis, 2019 IL App (4th)
170084, ¶ 23. A trial court abuses its discretion when its decision is “arbitrary, fanciful, or
unreasonable to the degree that no reasonable person would agree with it.” People v. McDonald,
2016 IL 118882, ¶ 32, 77 N.E.3d 26.
¶ 27 Section 5-5-3.1(a) of the Unified Code of Corrections (730 ILCS 5/5-5-3.1(a)
(West 2018)) lists 16 factors for which the trial court accords “weight in favor of withholding or
minimizing a sentence of imprisonment.” In this case, the court found none applied, and on
appeal, defendant argues the court should have found his imprisonment would endanger his
medical condition. The State asserts defendant has forfeited this issue. We agree with the State.
¶ 28 “A defendant’s challenge to the correctness of a sentence or to any aspect of the
sentencing hearing shall be made by a written motion filed with the circuit court clerk within 30
days following the imposition of sentence.” 730 ILCS 5/5-4.5-50(d) (West 2018). Moreover,
sentencing errors not raised in the trial court are forfeited for review. People v. Rathbone, 345
Ill. App. 3d 305, 308-10, 802 N.E.2d 333, 336-37 (2003).
¶ 29 In both his presentence report and his statement of allocution, defendant
mentioned some of his ongoing health issues, including a hernia. In sentencing defendant, the
circuit court noted it considered, inter alia, the statement defendant made in allocution and found
the maximum sentence was not appropriate given due consideration to all factors in mitigation.
In fact, in his motion to reconsider, defendant argued “the [c]ourt gave inadequate consideration
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to *** [d]efendant’s health condition as a mitigating factor.” (Emphasis added.) Thus, this is
not a case where the trial court failed to consider certain evidence as mitigating, like the cases
cited by defendant (see People v. Markiewicz, 246 Ill. App. 3d 31, 56, 615 N.E.2d 869, 886
(1993); People v. Calhoun, 404 Ill. App. 3d 362, 386, 935 N.E.2d 663, 683 (2010)).
¶ 30 Not all mitigating evidence rises to the level of a statutory mitigating factor.
While defendant presented evidence of his hernia and other medical issues, defense counsel did
not specifically assert at the sentencing hearing the statutory mitigating factor imprisonment
would endanger defendant’s medical condition (730 ILCS 5/5-5-3.1(a)(12) (West 2018)) applied
in defendant’s case. Moreover, defense counsel did not make that assertion in either defendant’s
motion to reconsider his sentence or the hearing on the motion to reconsider. In the trial court,
defendant’s contention was the court failed to give adequate consideration to his health
condition. Thus, we agree with the State defendant has forfeited his claim the court erred by not
finding the statutory mitigation factor imprisonment would endanger defendant’s medical
condition applied to defendant’s case.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we remand the cause to the Champaign County circuit
court to determine which count of aggravated DUI should be vacated and affirm the judgment in
all other respects.
¶ 33 Affirmed in part and remanded in part.
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