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.
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)). 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 ...