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November 22, 1996


Appeal from Circuit Court of Piatt County. No. 95TR955. Honorable John P. Shonkwiler, Judge Presiding.

Released for Publication November 22, 1996. As Corrected January 3, 1997.

Honorable Robert W. Cook, P.j., Honorable Frederick S. Green, J. - Concur, Honorable Robert J. Steigmann, J. - Special Concurrence. Presiding Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

Defendant Kyle Jones pleaded guilty to driving under the influence of alcohol (DUI) in violation of section 11-501(a)(1) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(1) (West 1994)) and was sentenced to 10 months' conditional discharge. Defendant appeals his sentence, alleging the trial judge abused his discretion by denying a sentence of court supervision because of the trial judge's personal belief that supervision is never appropriate for DUI offenders. We reverse and remand.

Defendant was arrested for DUI in May 1995. He submitted to a breath test which indicated a blood-alcohol concentration (BAC) of 0.13. Defendant was charged with (count I) DUI in violation of section 11-501(a)(2) of the Code (625 ILCS 5/11-501(a)(2) (West 1994)), and (count II) DUI in violation of section 11-501(a)(1) of the Code (625 ILCS 5/11-501(a)(1) (West 1994)). Pursuant to a plea agreement, the State dismissed count I and defendant pleaded guilty to count II. The presentence report showed that defendant was 20 years old at the time of his arrest. Defendant had no prior criminal record, but had a 1993 speeding ticket.

According to the presentence report, the night of defendant's arrest, he had attended a small party and consumed five beers. Defendant regretted leaving the party and acknowledged that he should have acted more responsibly, but, according to the presentence report, "does not feel he was under the influence of alcohol and was capable of driving *** home." At his sentencing hearing, defendant stated that, when he left the party on the night of his arrest, he believed he was sober enough to drive. He explained that he now knew that driving under those conditions "was the wrong thing to do."

Defendant described his arrest as a "real eye-opener" and stated that he did not consume any alcohol between the date of his arrest and his twenty-first birthday. Defendant reported that he had never used any illegal drugs. Defendant stated that he would never again operate a motor vehicle after drinking alcohol, nor would he ever be a passenger in a car being driven by a person who had been drinking. Defendant also reported that he had been evaluated at Piatt County Mental Health Center. Defendant received a Level I classification. This means defendant is characterized as a "Minimal Risk." See 92 Ill. Adm. Code ยง 1001.410, at 92-1001-13 (1996). As a result of this evaluation, it had either been recommended or mandated that defendant attend 10 hours of remedial education, but defendant had not done so because "they were busy." He was planning on completing that program over the semester break and before returning to school at Eastern Illinois University (EIU) in Charleston.

At the time of his sentencing hearing, defendant had received his associate's degree and was pursuing a bachelor's degree in physical education with a minor in English at EIU. Defendant hoped to work as an English teacher and a coach, eventually obtaining either a master's degree or a Ph.D. in sports psychology. Defendant volunteered as an assistant at basketball workshops, teaching second- through fifth-grade students the fundamentals of the game. At his sentencing hearing, defendant expressed his concerns that a DUI conviction would have a negative impact upon his ability to get a job.

The probation officer who had prepared defendant's presentence report recommended defendant be sentenced to six months' conditional discharge with certain conditions. The assistant State's Attorney noted that "there is no question that the defendant has been doing some good things in his community, [he] has enrolled in school which we also like to see, [and he] has plans for the future. Again, in a contrast to many of the people that come through the court system." The State asked the court to sentence defendant to 12 months' conditional discharge, impose a $400 fine, and force defendant to comply with the conditions recommended by the probation officer.

In determining defendant's sentence, the judge noted that defendant had not completed the Piatt County Mental Health Center educational program. The trial judge also stated that he had read the report of the alcohol evaluator, and that the report stated that defendant's answers to the evaluator "were not reliably consistent and were evasive." The trial court sentenced defendant to 10 months' conditional discharge. Defendant was ordered to pay a fine of $350 plus costs and a monthly probation fee. Additionally, defendant was required to (1) complete all counseling as recommended by the probation office, (2) complete alcohol treatment, and (3) attend a victim-impact panel. Defendant filed a motion to reconsider sentence.

In the motion to reconsider sentence filed December 27, 1995, defense counsel first noted the decision in People v. Bolyard, 61 Ill. 2d 583, 338 N.E.2d 168 (1975). In Bolyard, the supreme court found that the trial judge had abused his discretion by arbitrarily denying probation because the defendant fell within the trial judge's category of disfavored offenders. Bolyard, 61 Ill. 2d at 587, 338 N.E.2d at 170. Defense counsel next noted this court's decision in People v. Foster, No. 4-94-0451 (1994) (unpublished order under Supreme Court Rule 23), rev'd on other grounds, 171 Ill. 2d 469, 665 N.E.2d 823, 216 Ill. Dec. 565 (1996). At the trial court level, Foster was decided by the same judge as in the present case. This court dismissed Foster's appeal for noncompliance with Rule 604(d) (145 Ill. 2d R. 604(d)), but noted that if this were not the result, the case would need to be remanded for resentencing before a different judge because the judge's comments reflected a belief that supervision was never an appropriate sentence for a DUI offender.

Defense counsel noted that since the trial court's sentencing of Foster in May 1994, the same judge had heard three DUI cases in which the defendant asked for court supervision. In all three cases, the judge denied the request. He cited People v. Wright, No. 94-TR-524 (Cir. Ct. Piatt Co.), People v. Gibbs, No. 94-TR-990 (Cir. Ct. Piatt Co.), and People v. Marlow, No. 94-TR-943 (Cir. Ct. Piatt Co.), rev'd, No. 4-94-1028 (June 30, 1995) (unpublished order under Supreme Court Rule 23). In Marlow, this court quoted its discussion of the sentencing issue in Foster at length before noting that defendant Marlow was denied supervision, in part, due to "the trial judge's antagonism to the law of supervision." Marlow, No. 4-94-1028, slip order at 8 (June 30, 1995) (unpublished order under Supreme Court Rule 23). The case was remanded for resentencing before a different judge.

Defendant's motion to reconsider also noted that since May 1994, supervision had been granted in nine Piatt County DUI cases, all of which had been heard by other judges. Finally, defense counsel noted that since May 1994, motions to substitute judges had been filed in 15 separate DUI ...

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