Appeal from the Circuit Court of Williamson County. No. 07-CF-332 Honorable John Speroni, Judge, presiding.
The opinion of the court was delivered by: Justice Chapman
Motion to publish granted
JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Donovan and Justice Spomer concurred in the judgment and opinion.
¶ 1 Defendant appeals from the four-year sentence on his conviction for aggravated driving under the influence. Probation for a conviction is only allowable when extraordinary circumstances are found. 625 ILCS 5/11-501(d)(2)(G) (West 2008). On appeal, defendant contends that the term "extraordinary circumstances" is unconstitutionally vague. Defendant alternatively argues that the trial court's application of the statute was improper, because the evidence he presented at his sentencing hearing warranted probation.
¶ 3 On July 16, 2007, defendant and two of his friends, Broady Harding and Greg Wyatt, were drinking beer at Greg Wyatt's home. Between 11 p.m. and midnight, after he finished his work shift, Justin Dodd went to Wyatt's home. According to defendant, Justin Dodd advised the men that he had argued with his father, and he wanted to start drinking. However, Justin did not want to stay at Greg's home. He allegedly suggested that the men go for a ride, buy beer, and drink while driving around. Both Broady Harding and Greg Wyatt confirmed in testimony at the sentencing hearing that Justin Dodd wanted to drink alcohol and that he offered to pay for gas and to buy the beer. The record on appeal is unclear about how many people were with defendant in the vehicle that night. Defendant, Justin Dodd, and Greg Wyatt were in the vehicle. Whether Broady Harding and another individual simply identified as Carly were present in the vehicle is not clear from the record. Defendant was driving the vehicle. That night, while drinking and driving, defendant lost control of the vehicle and the vehicle rolled over. Defendant claims that he swerved to avoid a deer and went off the road. At the hospital that night, defendant was told that the accident resulted in the loss of Justin Dodd's life.
¶ 4 On August 10, 2007, the State filed its information charging defendant with the offense of aggravated driving under the influence of alcohol in violation of section 11-501(d)(1)(F) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(1)(F) (West 2006)).
¶ 5 Defendant entered into an open guilty plea on September 22, 2008.
¶ 6 The presentence investigation revealed no past criminal history, but a fairly large number of traffic violations.
¶ 7 At sentencing on January 23, 2009, defendant advanced his argument in mitigation that the victim, Justin Dodd, induced or facilitated defendant's conduct--in that Justin Dodd asked to drive around while drinking and went so far as to pay for the gasoline and the beer in order to accomplish that goal. At the conclusion of the sentencing hearing, the court took the matter under advisement. On January 30, 2009, the trial court sentenced defendant to four years after concluding that no extraordinary circumstances existed that would require or support a sentence of probation. Defendant's motion to reconsider this sentence was denied by the trial court on April 1, 2009.
¶ 8 On appeal to this court, we vacated the denial of defendant's motion to reconsider his sentence because the court did not comply with Supreme Court Rule 604(d) (eff. July 1, 2006). People v. Hill, No. 5-09-0189 (2010) (unpublished summary order under Supreme Court Rule 23(c)(2) (eff. May 30, 2008)).
¶ 9 On remand to the trial court, defendant filed a new motion to reconsider sentence on September 13, 2010. The motion was argued on October 26, 2010, and the court took the motion under advisement. ...