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People v. Mischke

Court of Appeals of Illinois, Second District

December 29, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DONALD J. MISCHKE, JR., Defendant-Appellant

Appeal from the Circuit Court of Lake County. No. 11-CF-142. Honorable Mark L. Levitt, Judge, Presiding.

SYLLABUS

Where defendant was convicted of first-degree murder and aggravated driving under the influence and sentenced to concurrent terms and he appealed from the denial of his motion to reconsider his sentences, the trial court vacated his concurrent sentences and remanded the cause for the imposition of consecutive sentences and resentencing on each conviction individually, since section 5-8-4(d)(1) of the Unified Code of Corrections mandates consecutive sentences when defendant is convicted of one count of first-degree murder.

Michael J. Pelletier, Thomas A. Lilien, and Bruce Kirkham, all of State Appellate Defender's Office, of Elgin, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and Marshall M. Stevens, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.

OPINION

BIRKETT, JUSTICE.

Page 1130

[¶1] Defendant, Donald J. Mischke, Jr., appeals from the judgment of the circuit court of Lake County sentencing him to concurrent terms of 26 years in prison for first-degree murder (720 ILCS 5/9-1(a)(3) (West 2010)) and 7 years in prison for aggravated driving while under the influence (DUI) (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)). Because consecutive sentences were required, we vacate both sentences and remand for resentencing.

[¶2] I. BACKGROUND

[¶3] Following a bench trial, defendant was found guilty of, among other things, one count of first-degree murder (felony murder) (720 ILCS 5/9-1(a)(3) (West 2010)) and one count of aggravated DUI with cocaine in his urine (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)). Defendant was sentenced to concurrent terms of 26 years' imprisonment on the first-degree murder conviction and 7 years' imprisonment on the aggravated DUI conviction.[1]

[¶4] Defendant filed a motion to reconsider his sentences. The trial court denied the motion to reconsider, and defendant filed a timely notice of appeal.

[¶5] II. ANALYSIS

[¶6] On appeal, defendant raises three contentions: (1) that the trial ...


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