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06/16/89 the People of the State of v. Donald L. Sharp

June 16, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD L. SHARP, DEFENDANT-APPELLANT

THE RESTITUTION ORDER WAS MADE PURSUANT TO SECTION 5-5-6(B) OF THE UNIFIED CODE OF CORRECTIONS (CODE) (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 1005-5-6(B)), WHICH STATES, IN PERTINENT PART:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

541 N.E.2d 689, 185 Ill. App. 3d 340, 133 Ill. Dec. 478 1989.IL.901

Appeal from the Circuit Court of Madison County; the Hon. Charles W. Chapman, Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. WELCH, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

Defendant, Donald L. Sharp, appeals from an order of the circuit court of Madison County sentencing him to 30 months' probation, with the first 12 months being intensive probation, seven consecutive days in the county jail, to attend alcohol treatment as recommended by the Department of Probation, to serve 18 months of periodic imprisonment in the Madison County jail with credit for time served and to pay decedent's widow a minimum of $600 per month for five years as restitution. In this cause, defendant raises the following issues: (1) whether the trial court abused its discretion in ordering defendant to pay $600 per month as well as 50% of any overtime earnings for five years to the victim's spouse as restitution; (2) whether the trial court erred in admitting evidence at the sentencing hearing that the victim was killed; and (3) whether the sentence of 18 months' periodic imprisonment was excessive.

Because the instant case rests upon defendant's plea of guilty, we take our facts from the probation report and the sentencing hearing. In the early morning of July 10, 1985, a motorcycle driven by Charles Wiley, victim, was struck from behind by an auto driven by defendant. The accident occurred on Illinois Route 111. Defendant stopped at the scene for a brief time, reentered his vehicle, and left the scene. Defendant then abandoned his car and "popped" the ignition so as to make it look as though his vehicle had been stolen. Defendant then reported to the Pontoon Beach police department that his car had been stolen. The victim, Charles Wiley, age 56, was hospitalized with injuries and subsequently died. Defendant was identified as the driver on July 12, 1985, by a witness to the accident. Defendant initially stated that he had no knowledge of the fatal accident. He then admitted that he had not seen the motorcycle before he hit it. He stated that he stayed at the scene until someone arrived, but panicked and left the scene.

Defendant was originally charged by the State with failing to file an accident report within 48 hours of an accident involving personal injury or death. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-401(b).) On November 13, 1985, defendant pleaded guilty and after a sentencing hearing was sentenced to 30 months' probation, the first 12 months to be intensive probation, to pay decedent's widow $50,000 as restitution, to serve 18 months' periodic imprisonment in the Madison County jail, and to receive alcohol and drug testing and/or counseling as required. On March 24, 1986, defendant filed a motion to withdraw his guilty plea, which was granted on July 1, 1986. On October 11, 1986, the State filed an amended information charging defendant with two counts of reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9-3(a)), failure to report a motor vehicle accident involving personal injury or death (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-401(b)), driving while license revoked (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303(a)), and failure to decrease speed to avoid an accident (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-601(a)). On December 1, 1986, defendant pleaded guilty to failure to report an accident, driving while license revoked, and failure to decrease speed to avoid an accident. In exchange for defendant's plea of guilty, the State dismissed the two counts of reckless homicide. Defendant was then sentenced to 30 months' probation with the first 12 months to be intensive; seven consecutive days' incarceration for driving while license revoked; to attend alcohol treatment as recommended by the Probation Department; to serve 18 months of periodic imprisonment with credit for time served; to pay $600 per month for five years to the victim's widow as restitution; and if defendant had an opportunity to work overtime, to pay 50% of these net earnings as additional restitution to the victim's widow.

Defendant's first issue on appeal is whether the restitution order was an appropriate exercise of judicial discretion. Specifically, defendant argues that the trial court abused its discretion in ordering defendant to pay $600 per month as well as 50% of any overtime earnings for five years to the victim's spouse. Defendant submits that restitution can only be ordered for the named victim's funeral expenses and medical bills and further contends that the trial court was wrong to consider the victim left a widow who was deprived of a husband and support.

"(b) In fixing the amount of restitution to be paid in cash, the court shall allow credit for property returned in kind, for property damages ordered to be repaired by the defendant, and for property ordered to be restored by the defendant; and after granting such credit, the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant, and insurance carriers who have indemnified the named victim or other victims for such out-of-pocket expenses, losses, damages, or injuries, provided that in no event shall restitution be ordered to be paid on account of pain and suffering."

The term "victim" is defined by section 5-1-22 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005-1-22) as having "the meaning ascribed to it in subsection (a) of Section 3 of the Bill of Rights for Victims and Witnesses of Violent Crime Act. [Ill. Rev. Stat. 1987, ch. 38, par. 1403.]" Therein, the term "victim" is defined as including "the spouse, parent, child or sibling of a person killed as a result of a violent crime perpetrated against the person killed." (Ill. Rev. Stat. 1987, ch. 38, par. 1403(a)(3).) A violent crime is defined as "any felony in which force or threat of force was used against the victim or any misdemeanor which results in death or great bodily harm to the victim." (Ill. Rev. Stat. 1987, ch. 38, par. 1403(c).) Under these definitions, we find that Charles Wiley's spouse qualifies as a victim of a violent crime.

Defendant's actions were the cause of Charles Wiley's death. Defendant's driving while his license was revoked, a Class A misdemeanor, and failure to reduce speed to avoid an accident, another Class A misdemeanor, can be considered violent crimes inasmuch as had defendant not been driving and had defendant reduced his speed and avoided the accident, the victim would not have been hit from behind and killed. Moreover, a review of the House of Representatives floor debate on the bill (House Bill 67 (1983)) which amended sections of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1003-1-1 et seq.) makes it clear that it was the legislative intent to allow victims not named in a complaint to receive restitution. Having decided that decedent's spouse is a victim under Illinois law, we must now consider whether the trial court's order of $600 per month plus 50% of any overtime defendant works for five years is justified under section 5-5-6(b) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-6(b)).

Trial courts are given wide discretion to determine the penalty appropriate to the circumstances of each case. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) In the instant case, the statute under which restitution was ordered provides for "actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered" but fails to define these terms. We find no Illinois precedent to guide us in this matter.

At the first sentencing hearing, there was testimony by decedent's eldest stepson concerning decedent's income prior to his death.

"THE COURT: What was your father's earnings?

A. The last -- Well, my father was a machinist. Good Lord. That's -- With the children my father never really spoke that much about his money. My Mom had something about some taxes from the year before on my dad, and I think they was somewhere that particular year my father made thirty-two thousand dollars. Now, that was two years ago."

This was the extent of any Discussion of decedent's income. No tax forms were introduced into evidence. As to decedent's spouse, there was some testimony that she was forced to quit ...


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