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People v. Mischke

Court of Appeals of Illinois, Second District

July 30, 2018

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.

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

          OPINION

          BIRKETT JUSTICE.

         ¶ 1 Defendant, Donald J. Mischke Jr., appeals from the judgment of the circuit court of Lake County resentencing him upon remand to consecutive terms of 26 years and 7 years in prison. Because the trial court did not abuse its discretion in resentencing defendant, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Following a bench trial, defendant was found guilty of, among other things, one count of first-degree murder (720 ILCS 5/9-1(a)(3) (West 2010)) and one count of aggravated driving while under the influence (DUI) with cocaine in his urine (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)).[1] The charges arose out of defendant's killing another driver while fleeing from a retail store into which he had intentionally driven his vehicle and from which he had stolen a television. Defendant was sentenced to concurrent terms of imprisonment of 26 years on the murder conviction and 7 years on the DUI conviction.

         ¶ 4 In imposing the original sentences, the trial court noted that it had considered the trial evidence, the aggravating and mitigating evidence, all aggravating and mitigating factors, and the presentence investigation report (PSR). The court commented that defendant's criminal history was "certainly not terribly significant" and that his lack of a violent history indicated that he "possess[ed] the tools to work toward restoring himself *** to useful citizenship." However, the court added that defendant's actions "evinced a callous disregard for anything or anyone that got in his way" and "caused a family unimaginable loss."

         ¶ 5 Defendant appealed, and this court vacated his sentences, as they were required to be consecutive (see 730 ILCS 5/5-8-4(d)(1) (West 2010)), and remanded for resentencing. See People v. Mischke, 2014 IL App (2d) 130318, ¶¶ 23, 25. In doing so, we noted that any increase in the aggregate sentence resulting from the sentences being made consecutive would not be improper. See Mischke, 2014 IL App (2d) 130318, ¶ 23 n.3 (citing People v. Harris, 366 Ill.App.3d 1161, 1165-66 (2006)).

         ¶ 6 Upon remand, the trial court conducted a new sentencing hearing, at which the State offered no new evidence. Defendant submitted a letter, in which he explained how the death of the victim was the catalyst for his spiritual transformation and prison ministry. In allocution, defendant reiterated the positive impact the incident had on his life.

         ¶ 7 In imposing sentence, the trial court noted that it had carefully listened to the parties' arguments, reviewed the PSR and the record of the original sentencing, considered all aggravating and mitigating factors, and considered defendant's letter and allocution. The court commented that, although it was "considerably impressed" with defendant's efforts to make his life useful, it could see no reason to deviate from the original sentences. It added that to reduce either sentence would "seriously diminish and detract from the crimes that [defendant was] convicted of and the sentence [that the court] intended to impose." Thus, the court resentenced defendant to consecutive terms of 26 years' imprisonment on the murder conviction and 7 years' imprisonment on the DUI conviction.

         ¶ 8 Defendant filed a motion to reconsider his sentences. At that hearing, defendant noted that he was not contending that the imposition of the same individual sentences was per se improper. Instead, defendant asserted that, in light of the new mitigating evidence and the increase in the aggregate sentence from 26 to 33 years, the individual sentences were excessive. The trial court denied the motion to reconsider, and defendant filed this timely appeal.

         ¶ 9 II. ANALYSIS

         ¶ 10 On appeal, defendant contends that the trial court abused its discretion in imposing the same sentence for each offense when the aggregate sentence of 33 years exceeded the original aggregate of 26 years, he submitted additional mitigating evidence, and the State presented no new aggravating evidence. We disagree.

         ¶ 11 Generally, under section 5-5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5-4(a) (West 2014)), a trial court at resentencing may not impose a more severe sentence. However, when a trial court is required to resentence a defendant to consecutive sentences, section 5-5-4(a) applies only to the individual sentences, not the aggregate sentence. Harris, 366 Ill.App.3d at 1165. Indeed, our supreme court has stated that each conviction results in a discrete sentence that must be assessed individually. People v. Carney, 196 Ill.2d 518, 530 (2001). As such, consecutive sentences do not constitute a single sentence and cannot be combined as though they were one sentence for one offense. Carney, 196 Ill.2d at 530. Thus, regardless of any increase in the aggregate sentence, an individual sentence on remand does not violate ...


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