Armed Violence Statute

The gist behind the armed violence offense in Illinois is to create a more serious felony offense anytime a person commits a felony while armed with a weapon.

Dangerous Weapon

The Illinois armed violence statute is found at 720 ILCS 5/33A-2(a)(1) of the Criminal Code of 2012. It states:

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except [certain excluded offenses].”

720 ILCS 5/33A-2(a).

Discharges A Firearm

Section (b) covers using a firearm:

A person commits armed violence when he or she personally discharges a firearm that is a Category I or Category II weapon while committing any felony defined by Illinois law, except [certain excluded offenses].”

720 ILCS 5/33A-2(b)

Causes Great Bodily Harm

Section (c) covers causing bodily harm with a firearm:

“A person commits armed violence when he or she personally discharges a firearm that is a Category I or Category II weapon that proximately causes great bodily harm, permanent disability, or permanent disfigurement or death to another person while committing any felony defined by Illinois law, except [certain excluded offenses.]”

720 ILCS 5/33A-2(c)

Weapon Categories Definition

The definitions section under 720 ILCS 5/33A-1(c) defines the various categories of weapons as follows:

Category I Weapon

A Category I weapon is a

* Handgun* Sawed-off shotgun* Sawed-off rifle* Firearm small enough to be concealed upon the person* Semiautomatic firearm* Machine Gun.

Category II Weapon

A Category II weapon is a

* Any other rifle* Shotgun* Spring gun* Other firearm, stun gun or taser * Knife with a blade of at least 3 inches in length* Dagger* Dirk* Switchblade knife* Stiletto* Axe* Hatchet* Other deadly or dangerous weapon or instrument of like character.

Category III Weapon

A Category III weapon is a

* Bludgeon* Black-jack* Other Dangerous weapon of like character.

Armed Violence Is A Class X Felony

A person convicted of an armed violence has essentially committed a Class X Felony. The sentencing statute for armed violence creates certain minimum number of years a person must serve if convicted.

See 720 ILCS 5/33A-3(a), (a-5), (b). Sentence:

TypeCategoryMinimumDangerous WeaponCategory I15 yrsDangerous WeaponCategory II10 yrsDangerous WeaponCategory IIIClass 2 Felony

The more serious forms of armed violence involve discharging a fir...

People v. Tatera, 2018 IL App (2d) 160207 (May). Episode 498 (Duration 7:21)

9th DUI for this guy; 8 years seems about right.

Gist

This is defendant’s 9th DUI. He got 8 years.

HGN Issue

There were no fields and no blow but the video showed him all dazed and confused and not following instructions. Defendant argues that the trial court abused its discretion by allowing the jury to see a portion of the administration of the HGN test in the arrest video.

Defendant argues that, because the State agreed that the HGN test was improperly conducted, the jury should have been precluded from seeing any footage of the administration of the test.

What The Jury Saw

The trial court, over defendant’s objections, admitted a portion of the recording because it showed defendant disobeying the officer’s instructions to keep his hands at his sides and out of his pockets.

Defendant contends that, under People v. McKown, 236 Ill. 2d 278, 306 (2010), the recording was completely inadmissible.

People v. McKown

In McKown, the supreme court held that, for the results of an HGN test to be admitted at trial, a proper foundation must be laid, including the officer’s proper training and administration of the test. The supreme court held that the administration of the HGN test in that case did not meet the standards that the court had enunciated, so the admission of any testimony concerning the test and its results was reversible error. 

Analysis

Here, defendant argues that the officer did not correctly perform the HGN test, so the admission of the recording was likewise erroneous, and that, given the closeness of the evidence, the error cannot be deemed harmless beyond a reasonable doubt.

In McKown, by contrast, the officer testified about the test and the conclusions he drew from the defendant’s performance. Here, Kresen did not testify at all about the test—either his administration of the test or defendant’s performance of the test; likewise, the State made absolutely no argument about the test.

Thus, in this respect, McKown is significantly distinguishable.

The question remains, however, whether the jury should have observed the portion of the recording admitted to illustrate defendant’s inability or refusal to comply with Kresen’s instructions. See People v. King, 2014 IL App (2d) 130461. We then held that “a motorist’s failure to follow directions on a particular field sobriety test does not lose all relevance simply because the test might not have been designed for the precise purpose of gauging the ability to follow directions.” Id. ¶ 12.

Thus, we determined that our holding did not imply that, where the State is aware that the HGN test was not conducted properly and, thus, that the results were inadmissible, the officer’s otherwise relevant and material observations could or should have been characterized as part of the administration of an HGN or other field sobriety test.

That the defendant did not follow the officer’s instructions was separate and apart from any scientific evidence that would have been associated with the HGN test (and which neither the officer nor the State commented upon).

In This Case…

Here, the State conceded that the HGN test was improperly conducted.

Unlike in King, the officer did not even mention the HGN test; rather, he testified that defendant did not follow his instructions,

Episode 496 (Duration 13:26) Here’s a quick summary of 5 recent “pat down” cases.

5 Illinois Pat Down Search Cases That Explain When You Can Pat & When You Can’t

3 Go for the State, and 2 come out in favor of the defense.

In This Episode…

We discuss the following cases:

* People v. Richardson, 2017 IL App (1st) 130203-B (May)* People v. Evans, 2017 IL App (4th) 140672 (March)* In re Jarrell C., 2017 IL App (1st) 170932 (December)* People v. Gomez, 2018 IL App (1st) 150605 (April)* In re D.L., 2017 IL App (1st) 171764 (December)

…and the bonus:

* People v. Timmsen, 2016 IL 118181 (March)

People v. Richardson

Fidgeting With Your Waistband At The Wrong Time Gonna Get You Patted Down.

This pat down was justified after Defendant was fidgeting with his waistband and reaching for something after he was told to show them his hands.

Facts

Officers stop a car matching the general description of a stolen car.

Officer Akinbusuyi approached the vehicle from the passenger’s side while Officer Johnson approached the driver’s side.

Officer Johnson requested that the driver exit the vehicle after the driver was unable to produce a driver’s license or insurance information. As the driver exited the vehicle, Officer Akinbusuyi observed the defendant mumbling and reaching “into the center console with his right hand but with his left hand it was stuffing something in his waistband.”

Kind of Fishy

Officer Akinbusuyi testified that he found the defendant’s actions unusual, because “he had no reason to be doing that after I verbally told him let me see your hands.”

Officer Akinbusuyi testified that his “best judgment was that he was hiding something in his waistband.”

Based on his experience, he believed that “[i]t was mostly likely a weapon, drugs or something he didn’t want me to find.”

Defendant Ordered Out

Officer Akinbusuyi asked the defendant to exit the vehicle, and the defendant complied.

Officer Akinbusuyi handcuffed the defendant, “patted down the area” and discovered a handgun in the defendant’s waistband.

The officers subsequently searched the vehicle and found the victim’s culinary tools confirming it was the stolen car.

Issue

Defendant contends that his motion to suppress evidence and quash arrest should have been granted because the arresting officer’s pat-down search was unconstitutional.

Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018). Episode 495 (Duration 11:20)

Police need a warrant to search a vehicle on private property.

Issue

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.

Facts

Police were aware of a man speeding on an orange and black motorcycle but were unable to catch him. Officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.

It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.

From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph.

No Warrant

Officer Rhodes, who did not have a warrant, exited his car and walked toward the house.

He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

In order “to investigate further,” Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen.

After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.

Defendant Gets Home

Shortly thereafter, Collins returned home.

Officer Rhodes walked up to the front door of the house and knocked. Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title.

Officer Rhodes then arrested Collins.

Charges

Collins was indicted by a Virginia grand jury for receiving stolen property.

Automobile Exception v. Warrant Requirement

This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.

Automobile Exception

The Court has held that the search of an automobile can be reasonable without a warrant.

The Court first articulated the so-called automobile exception in Carroll v. United States, 267 U. S. 132 (1925). The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney, 471 U. S. 386, 390 (1985) (citing, e.g., Cooper v. California, 386 U. S. 58, 59 (1967); Chambers v. Maroney, 399 U. S. 42, 51–52 (1970)).

Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U. S., at 392. As the Court explained in South Dakota v. Opperman, 428 U. S. 364 (1976):

“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements.

People v. Gomez, 2018 IL App (1st) 150605 (April). Episode 492 (Duration 8:05)

Police roll up on a parked car and order everyone out; they find a gun.

Gist

Defendant was sentenced to 7 years for a gun.

The Car

3 officers are in an unmarked squad car when they notice the same Grand Marquis driving around the neighborhood. Eventually, the car pulls over. Defendant is in the back seat with another guy. The police talk to the driver window to window from the cars.

He asked the driver “what he was doing, [and] if he lived around there.” They did not box in the car.

The driver initially responded that he lived down the street; however, the driver admitted that he did not live down the street, but resided somewhere on the “other side of Pulaski.”

Rear Seat Passenger

As he spoke to the driver of the Grand Marquis, Detective Amato was able to observe defendant, who was seated directly behind the driver in the rear of the vehicle. When the conversation began, defendant was “seated upright” with his torso visible to the officers.

As the conversation proceeded, however, defendant began “slouching down in the car.

He just kept on like steadily slouching down as the officers were talking to the driver. So his head was, you could only see like his head at one point in time.

That seemed suspicious.

Cops Had Enough

The cops get out of their car.

As a detective stood by the driver’s side of the Grand Marquis, he observed defendant leaning away from him and toward the middle portion of the seat with his right forearm covering the waistband of his pants. Defendant’s right hand was actually under his shirt.

The detective again found defendant’s behavior to be “suspicious,” and as a result, he asked to see defendant’s hands.

Initially, defendant only raised his left hand into the air and continued positioning his right arm and hand along his waistband. He then started showing his right hand, while still attempting to use his right forearm to shield the waistband of his pants.

He Has A Gun

Based on his observations of defendant’s behavior, the detective believed that defendant had a weapon on him and ordered all three occupants of the Grand Marquis to exit the vehicle. As defendant was exiting the vehicle, he still had his arm over his waistband.

After he completely extricated himself from the car, however, he then immediately turned around and he bent his entire body over the rear of the car. In response, the Sergeant grabbed defendant by his arms and stood him upright.

When he did so, a handgun dislodged from defendant’s waistband and fell to the ground. The detective immediately recovered the gun, which was loaded, and defendant was then placed into custody.

Statements About The Gun

After the police recovered defendant’s weapon, defendant “spontaneously” explained that he had just discovered the gun in a garbage can and asked the officers to “give [him] a break.” At the police station defendant admitted that he “was holding the gun for S.D.’s from 59th Street.”

Defendant and the two other occupants of the Grand Marquis were not acting aggressively toward the officers before they were ordered out of the vehicle.

3 Tiers Of Police Contact

Courts evaluating the nature and propriety of police-citizen encounters have grouped those interactions into three tiers:

(1) an arrest or detention of an individual supported by probable cause;

(2) brief investigative stops, commonly referred to as “Terry stops,” supported by a reasonable, articulable suspicion of criminal activity; and

(3) consensual encounters involving neither coercion nor detention and do not implicate the fourth amendment.

See People v. Luedemann, 222 Ill.

People v. Gill, 2018 IL App (3d) 150594 (April). Episode 491 (Duration 5:33)

Police had a nurse confiscate defendant’s clothes for them.

Gist

Defendant was charged with aggravated arson of a home when people were in it. He ends up at the hospital where a nurse gathers his clothes and gives it to the police.

Defendant was a suspect, due to an altercation between him and an occupant of the house earlier that morning. He was angry at a women who took $310 of drugs from him.

Issue

Defense counsel filed a motion to quash the seizure of defendant’s clothing from the Pekin hospital and suppress the clothing as evidence, arguing that the seizure did not meet any exceptions to the warrant requirement.

Facts

An officer at the scene of the home smelled gasoline and saw a Jeep in the driveway. Inside the house, the fire had originated in the kitchen, against an exterior wall.

Inside the Jeep, he noticed a gas can and white rags similar to the rags found in Defendant’s truck at Denny’s. The Jeep belonged to the women’s roommate.

Later the next day at the hospital, the nurses told police that defendant was admitted smelling badly of gasoline. The nurse then gave defendant’s clothing to police. The nurse did this because she was asked by police to put his clothes aside and save it for them. A dog was allowed to sniff the clothes and the dog alerted.

Police never secured a warrant for the clothes.

Surveillance video of the truck captured it near the scene of the crime. The truck was towed to the East Peoria Police Department without a warrant. Eventually, a warrant was obtained for the truck to be searched.

The Video

A neighbor turned over surveillance footage from their home security system.

A dark figure can be seen moving about the vicinity of the house across the street. Twenty-one seconds later, that house erupts into fire. An individual carrying a burning object runs into the street from the area of the house and runs down the street, to the right from the perspective of the camera. After running down the street for about 12 seconds, the individual throws the burning object from his person and continues running off screen.

A small fire where the discarded fiery object was thrown remains on screen. Investigators found the burnt debris along with a bic lighter. Police also found an abandoned grey sweatshirt with burn arm sleeves and a Bic lighter in the pocket.

After the defendant’s truck was confiscated and towed. The search revealed a Bic lighter under the truck’s front seat.

The Clothes

The accelerant-detecting canine, Rusty, can alert to the presence of ignitable liquids. Rusty performed a sniff of defendant’s clothing at the Pekin hospital, alerting to a pair of blue jeans. Arndt also took Rusty into defendant’s hospital room, where Rusty alerted to defendant’s hands. Police testified that they could smell the gasoline on defendant’s clothing when conducting the sniff with Rusty.

The grey sweatshirt also had defendant’s blood and DNA on it.

A forensic scientist testified that the white rag and gas can found in the Jeep, as well as debris from the house all tested positive for gasoline.

She also testified that defendant’s clothing tested positive for gasoline, but she could not identify if the gasoline was on an individual piece of clothing, as the clothing was collected in the same container.

Verdict & Sentence

Defendant was found guilty by a jury and sentenced to 12 years. Defendant next contends that the seizure of his clothing from the hospital was illegal on multiple grounds, and that the circuit court therefore erred in failing to suppress evidence stemming from that seizure.

State Action

First,

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22)

Involuntary confession and improper closing arguments lead to this Illinois wrongful murder conviction.

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Gist

In 2013 Maniac Latin Disciples, encountered several members of the Sureños, a rival street gang that operates in Wheeling.

Four gunshots rang out.

One person gets hit in the back and dies.

Holding

The court reversed the conviction due to the insufficiency of the evidence.

We hold that section 103-2.1 required the court to suppress the video recorded statements of Sanchez, made after police initiated unrecorded custodial questioning in a murder investigation, when police had not informed Sanchez of his Miranda rights. Police induced an involuntary, unreliable confession. The trial court erred when it denied the motion to quash the illegal arrest and the motion to suppress statements.

Analysis

Around 9:30 p.m. the police encountered the defendant and a codefendant being chased by Sureños. The Sureños said these two knew something about the shooting.

Defendant is handcuffed and arrested right away. This arrest was illegally and without probable cause.

After the illegal arrest, police questioned Sanchez twice about the murder, without advising Sanchez of his Miranda rights. Police also failed to record the questioning, in violation of section 103-2.1(b) of the Code of Criminal Procedure (Code). 725 ILCS 5/103­ 2.1(b).

The Code expressly places on the prosecution the burden of showing that an exception excuses them from the rule requiring recording of interrogations. 

People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 (Duration 7:09)

Defendant is getting arrested for disorderly conduct when recedes further into his house to prevent arrest, police follow him in and arrest him.

Gist

Police were responding to a noise complaint at a trailer park. Defendant gets arrested for Disorderly Conduct.

A jury found the defendant guilty of possession of methamphetamine and disorderly conduct. He got 5 years.

Complainant

The complainant indicated that someone inside the trailer next door was banging on its walls, while yelling and cursing.

As the officers were speaking, they too were able to hear the noise coming from inside the trailer. The complainant agreed to sign a complaint for discorderly conduct because this was not the first time the police had been called out. 

The officers proceeded next door to the defendant’s residence to arrest him for disorderly conduct.

Defendant Says

Originally, defendant refused to come outside when police knocked on the defendant’s door. The officers assured the defendant that they just needed to talk to him.

The defendant testified that when the officers knocked on his front door, he told them three times not to enter his house without a warrant. He assured the police officers he “would cease and desist as far as the noise was concerned.”

The officers told the defendant they would not enter his home.

The Old Standing In The Doorway Ruse

Nevertheless, when he opened the door, an officer informed the defendant that he was under arrest and reached out to grab the defendant by the hand.

The door opened outwards and the officer stepped in front of it so it could not be closed.

Defendant was asked to come outside. That’s when he told the police he wasn’t coming outside.

He told them 3 times not to come into his house without a warrant.

Then It Got Physical

The defendant then testified that when the officer reached out to grab him, he ran inside his trailer. The defendant stated that when he ran,

“They chased me from my porch into my living room.”

One of the officers tazed the defendant in his living room before placing him under arrest.

Little Taser Action

When they entered the kitchen area, the defendant threatened an officer with a two-liter plastic bottle.

That’s when they tased him.

The officers then placed the defendant under arrest.

Controlled Substance Discovered

A search of the defendant’s person incident to his arrest yielded a hypodermic needle and a wadded-up coffee filter that ultimately proved to contain a small amount of methamphetamine.

Constitution Protects The Home

The chief evil against which the fourth amendment to the United States Constitution is directed is the physical entry into the home. People v. Wear, 229 Ill. 2d 545, 562 (2008). To protect against the unjustified entry by law enforcement into the home, the fourth amendment has “drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590 (1980); People v. Davis, 398 Ill. App. 3d 940, 948 (2010).

Thus, the warrantless entry by police officers into a home and seizures inside the home are presumptively unreasonable under the fourth amendment, even with probable cause. Wear, 229 Ill. 2d at 562. Police need a warrant to cross the threshold of a private citizen’s home, unless exigent circumstances justify the intrusion.

Hot Pursuit

“Hot pursuit” doctrine says a person cannot defeat a public arrest simply by retreating to the safety of their home. See United States v. Santana, 427 U.S. 38, 42 (1976) (women standing at the threshold of her ap...

People v. Allard, 2018 IL App (2d) 160927 (February). Episode 486 (Duration 9:35)

Lake County State Attorney didn’t sign the applications for the recorded phone calls so they are invalid.

Gist

Defendants were indicted for racketeering conspiracy, racketeering, criminal drug conspiracy, street gang criminal drug conspiracy, controlled substances trafficking, and unlawful possession of a controlled substance with the intent to deliver.

It was investigation involving the Four Corner Hustlers.

Wiretap Evidence

As part of an investigation into gang activity, the Lake County State’s Attorney’s Office obtained authorization to intercept private communications involving certain telephone numbers.

Issue

The circuit court of Lake County authorized the nonconsensual electronic surveillance, pursuant to article 108B of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/108B), based on applications signed and presented by two assistant state’s attorneys (ASAs), not by the elected state’s attorney (SA).

Defendants joined in a motion to suppress the evidence, arguing that the SA’s failure to personally apply for the wiretap orders violated Article 108B as well as the federal wiretap statute set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2522 (2012)), better known as “Title III.”

They argued that, pursuant to Illinois and federal law, an application for a wiretap order must be personally authorized, in writing, by the elected SA, in this case SA Nerheim, or a person designated by the SA in writing or authorized by law to act for him in his absence. Defendants asserted that neither ASA Mathews nor ASA Fisz was so authorized and that, therefore, the orders entered pursuant to the applications were invalid.

Turns Out

The chief of the gang and narcotics prosecution division of the Lake County State’s Attorney’s Office the chief of the felony trial division were signing these warrants. Consistent with the applications, each order noted that the application was made, under oath, by either ASA Mathews or, in one instance, ASA Fisz, “on behalf of Michael G. Nerheim, State’s Attorney of Lake County.

The applications included orders and extension orders for nonconsensual telephone interceptions of the gang.

The investigation was being conducted by the Federal Bureau of Investigation (FBI); the Lake County Metropolitan Enforcement Group; and the police departments of Waukegan, North Chicago, and Zion.

Turns out SA Nerheim did not personally sign or present the wiretap applications.

The Illinois Overhear Statute

Section 108B-2(a) governs “request[s] for application for interception.” 725 ILCS 5/108B-2(a). This is an authorized eavesdropping recording.

The statute provides that “[a] State’s Attorney may apply for an order authorizing interception of private communications in accordance with the provisions of this Article.”  725 ILCS 5/108B-2(a).

In turn, section 108B-3(b) provides that

“[t]he State’s Attorney or a person designated in writing or by law to act for the State’s Attorney and to perform his or her duties during his or her absence or disability, may authorize, in writing, an ex parte application to the chief judge of a circuit court for an order authorizing the interception of a private communication when no party has consented to the interception and the interception may provide evidence of, or may assist in the apprehension of a person who has committed, is committing or is about to commit,

People v. Lawson, 2018 IL App (4th) 170105 (March). Episode 483 (Duration 8:25)

Defendant had a rare blood condition, that was not considered an extraordinary circumstance.

Gist

Defendant drove on a suspended license a “silver Nissan” around 1:30 a.m., after consuming alcohol that evening.

The Accident

An accident reconstructionist would testify defendant approached the intersection of Washington and Main Streets, in Bloomington, Illinois, at a speed of 47 miles per hour.

Due to her intoxication, defendant struck a man and a women as they walked across the intersection. Defendant did not stop her vehicle at the scene of the accident and failed to report she was in an accident to law enforcement officials.

The women died.

Defendant’s BAC

Testing revealed defendant’s blood alcohol concentration to be 0.265 and also indicated the presence of tetrahydrocannabinol (THC), or cannabis.

What The State Wanted

The State recommended a sentence of 12 years in prison for aggravated driving under the influence of alcohol (count I), a sentence of 9 years in prison for failure to report an accident involving death (count II), and a sentence of 364 days in jail for driving while license suspended (count XI).

Rare Disease

Defendant requested probation, characterizing her “extreme chronic and serious medical condition” as “extraordinary circumstances” requiring probation.

She had immune thrombocytopenic purpura (ITP) which required monthly blood transfusions.

The Sentence

Mitigation

In mitigation, the trial court considered defendant’s lack of a prior felony conviction and hardship on her children.

It also considered defendant’s “medical condition” and remorse.

Aggravation

In aggravation, the court considered the many “shattered lives” left in the wake of defendant’s “reckless conduct” and defendant’s failure to stop after hitting the pedestrians. The court also considered defendant “continually lied” to law enforcement officers after she was arrested, causing “additional work” for officers.

Deprecate Seriousness of Offense

The court noted the need to deter others from committing similar crimes. The trial court stated that a sentence of probation would deprecate the seriousness of defendant’s conduct and no extraordinary circumstances warranted probation “even with [defendant’s] medical condition.”

12 Years

The court sentenced defendant to eight years in prison for aggravated driving under the influence of alcohol (count I), four years in prison for failure to report an accident involving death (count II), and a sentence of “court costs plus conviction” for driving while license suspended (count XI).

Defendant’s sentences were “mandatory consecutive” bringing her total time to 12 years.

Issue

Defendant argued her “severe and unusual medical condition” and “the presumption for probation where there is no significant criminal history” were “extenuating circumstances” warranting probation.

Defendant first argues the trial court abused its discretion in sentencing her for aggravated driving under the influence of alcohol where it failed to find extraordinary circumstances existed, requiring she receive a sentence of probation.

Appellate Court Can’t Give Probation

Our supreme court has twice stated we categorically do not have the authority to reduce a prison sentence to a sentence of probation. See Bolyard, 61 Ill. 2d at 588 (“Rule 615 does not grant a reviewing court the authority to reduce a sentence of imprisonment to a sentence of probation.