Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 98--CF--579 Honorable Robert A. Barnes, Jr., Judge Presiding
The opinion of the court was delivered by: Justice Lytton
Following a stipulated bench trial, defendant Ronald G. Horton was convicted of four counts of reckless homicide (720 ILCS 5/9--3 (West 1998)) and sentenced to an aggregate term of 12 years' imprisonment. He appeals, claiming that (1) two of his convictions must be vacated under principles of "one-act, one- crime"; and (2) the court erred in imposing consecutive sentences. Defendant requests that this court vacate two convictions and order that the sentences for the remaining convictions be served concurrently. The State concedes the defendant's issues, but requests that the cause be remanded to the trial court for a new sentencing hearing. We vacate in part, affirm in part and modify the sentencing order.
Defendant was indicted in six counts for reckless homicide and aggravated driving under the influence of alcohol (DUI). Count I charged reckless homicide of Edwin Saurbaugh by driving too fast, in disobedience of a traffic control device and while under the influence of alcohol and cannabis. Count II contained the same allegations of reckless homicide of Wayne Crafton. Counts III and IV charged reckless homicide of Saurbaugh and Crafton, respectively, in the same manner as Counts I and II, but left out any reference to alcohol and cannabis. The defendant was charged in counts V and VI with aggravated DUI resulting in great bodily harm to the victims.
Stipulated evidence at trial established that around 4:50 a.m. on June 19, 1998, the defendant drove a Toyota Celica at a high rate of speed northbound on Old Galena Road through a stop light and into the intersection of Old Galena and Cedar Hills Drive, in Peoria County, Illinois. There, he broadsided a Pontiac Parisienne traveling westbound on Cedar Hills Drive. As a result of the collision, defendant's passenger, Crafton, and the driver of the Pontiac, Saurbaugh, were both killed.
Personnel at the emergency room of the hospital where the defendant was delivered noted that defendant smelled strongly of alcohol. Defendant admitted to a nurse that he had had a lot to drink. Chemical analysis of his bodily fluids revealed that defendant's blood-alcohol concentration was .155, and his urine indicated the presence of cannabinoids.
The trial court found defendant guilty and entered convictions on all counts of the indictment. Defendant was subsequently sentenced to concurrent seven-year terms of imprisonment on counts I and III and to concurrent five-year terms of imprisonment on counts II and IV, the five-year terms to run consecutively to the seven-year terms. The court did not impose sentences on the aggravated DUI convictions.
On appeal, the parties agree that defendant's two convictions for reckless homicide as alleged in counts III and IV should be vacated under one-act, one-crime principles. Pursuant to People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977), where all of the elements of one offense are included in another, a conviction for only the more serious offense may stand. See People v. Garcia, 179 Ill. 2d 55, 688 N.E.2d 57 (1997).
In this case, counts I and II are the more serious offenses. These counts included all of the elements of counts III and IV and added that the defendant was under the influence of alcohol and cannabis. As such, counts I and II were punishable as Class 2 felonies for a term of 3 to 14 years (720 ILCS 5/9--3(e) (West 1998)), while the lesser-included offenses were punishable as Class 3 felonies (720 ILCS 5/9--3(d)(2) (West 1998)). Accordingly, we vacate the defendant's reckless homicide convictions and sentences for counts III and IV.
Further, although defendant was not sentenced on his aggravated DUI conviction and the parties have not disputed those convictions, the convictions on counts V and VI should also be vacated under one-act, one-crime principles. People v. Latto, 304 Ill. App. 3d 791, 710 N.E.2d 72 (1999); People v. Green, 294 Ill. App. 3d 139, 689 N.E.2d 385 (1997). We therefore vacate the aggravated DUI convictions. See Garcia, 179 Ill. 2d 55, 688 N.E.2d 57.
Next, the parties agree that the trial court lacked authority to impose consecutive sentences on Counts I and II. Concurrent sentences are required under section 5--8--4(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5--8--4(a) (West 1998)) for multiple convictions of reckless homicide if the offenses were committed as part of a single course of conduct. See People ex rel. Starks v. Frye, 39 Ill. 2d 119, 233 N.E.2d 413 (1968). Clearly, concurrent sentencing was required in this case, and the ...