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June 7, 1996


Appeal from the Circuit Court of Du Page County. No. 93-CF-602. Honorable Eugene A. Wojcik, Judge, Presiding.

Released for Publication July 8, 1996.

Presiding Justice McLAREN delivered the opinion of the court: Geiger and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

The defendant, Christopher Tross, appeals his sentence of five years' imprisonment stemming from his guilty plea to reckless homicide (720 ILCS 5/9--3(a) (West 1994)). We affirm.

The record reveals that the defendant was charged with two alternative counts of reckless homicide (720 ILCS 5/9--3(a) (West 1994)) and two violations of the Illinois Vehicle Code (625 ILCS 5/11--501.2 (West 1994); 625 ILCS 5/11--501(a)(1) (West 1994)). The indictment alleged that on March 11, 1993, the defendant drove an automobile under the influence of alcohol and performed acts that were likely to cause death or great bodily harm. Specifically, it was alleged that the defendant drove on the shoulder of the I-355 expressway and caused the death of the victim, James Szach.

On May 4, 1994, the parties informed the court that the defendant wished to enter a plea of guilty to count I of the indictment, charging him with reckless homicide, and that the other charges against the defendant would be nol prossed.

The prosecutor then presented the factual basis for the plea. He stated that the evidence would show that, on March 11, 1993, between 7:30 and 8 p.m., the victim had an automobile accident on I-355 and pulled his car onto the center median. Subsequently, a tow truck arrived. Mr. Stark, from the towing company, would testify that he saw the defendant's car, travelling south, go onto the median and hit the victim while the victim was behind the tow truck and car.

Trooper Smith of the Illinois State Police would testify that, following the accident, he observed that the defendant emitted a strong smell of alcohol and had glassy red eyes and slurred speech. Trooper Smith also observed a half-full half-pint bottle of Jack Daniels whiskey in the defendant's car.

According to the factual basis presented by the prosecutor, the defendant was given a blood test after he had been taken to the hospital for his own injuries sustained in the collision. When blood was drawn at 8:40 p.m., the defendant's blood-alcohol reading was 0.27. Two hours later, when blood was drawn for the investigation at the request of police officers, the blood-alcohol reading was 0.15.

On March 22, 1993, the defendant admitted during questioning that he had been at a party on March 11, where he had drunk three beers. According to the defendant, he left the party to take his girlfriend home. The defendant stated that his sister was initially driving, but she encountered difficulty in adjusting the driver's seat, so she and the defendant switched seats and the defendant drove. The defendant started driving at Route 53 and North Avenue. The defendant stated that, after he was on I-355, he was adjusting the radio knob when his sister said, "watch out for that tow truck." The defendant later admitted that he had consumed at least six beers and had also been drinking directly from a vodka bottle.

After defense counsel stipulated that there was a factual basis, the court found the defendant guilty, and the matter proceeded to sentencing, whereupon both sides presented evidence. In mitigation, the defendant presented evidence that he had problems with alcohol. Testimony from the sentencing hearing indicated that prior to the March 11, 1993, incident, the defendant had been convicted of driving under the influence (DUI). Subsequent to the March 11, 1993, incident, evidence was presented that the defendant still committed crimes while under the influence of alcohol, including testimony that the defendant, on one occasion, drove while intoxicated. No evidence was presented that the defendant had recently sought treatment for his alcohol problems.

In pronouncing the sentence, the trial court noted that it had considered the statutory factors in aggravation (730 ILCS 5/5--5--3.2 (West 1994)) and mitigation (730 ILCS 5/5--5--3.1 (West 1994)). The court specifically mentioned that the defendant did not have a substantial criminal background, notwithstanding a prior DUI conviction, but had committed the offenses of theft and domestic violence while the instant case was pending. The court stated that it found it "troubling," in the light of the defendant's prior DUI conviction:

"That the defendant was aware of his drinking problem. *** Instead of dealing with that problem ***, he went on to commit this offense with a blood alcohol content of .27, was ...

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