People v. Visor, No. 2-98-1202
2nd District, 23 May 2000
| THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDALL J. VISOR, Defendant-Appellant. | Appeal from the Circuit Court of Du Page County. No. 97--CF--2215 Honorable John T. Phillips, Judge, Presiding. |
JUSTICE McLAREN delivered the opinion of the court:
After a jury trial, the defendant, Randall J. Visor, was found guilty of six counts of reckless homicide (720 ILCS 5/9--3(a)(West 1996)). The trial court sentenced the defendant on two counts to two concurrent terms of 13 years' imprisonment. Thedefendant appeals his convictions and sentence. We affirm in part, vacate in part, reverse in part, and remand the cause.
The following facts are taken from the record. On October 21, 1997, the defendant was arrested, taken into custody, andcharged with 16 counts of reckless homicide in connection with an automobile accident that resulted in the death of fourwomen. Subsequently, the defendant's bond was reduced and on November 26, 1997, the defendant was released on bondwith the following restrictions:
"[A]s a condition of the defendant's bond, he is to remain at his residence *** and is allowed to leave to meet with hisattorneys and those working with his attorneys and other professionals and to attend court."
Before trial, all but six counts were nol-prossed by the State. The first remaining count, count I, alleged that the defendantcommitted the offense of reckless homicide in that the defendant:
"[W]hile under the influence of alcohol to a degree which rendered him incapable of safely driving and while actingin a reckless manner, performed acts likely to cause the death or great bodily harm to some individual, in that heoperated a motor vehicle *** at a speed which was greater than reasonable and proper with regard to the existingtraffic conditions and the safety of persons upon the roadway and entered into the intersection of Eola Road indisobedience to the steady red traffic control lights at that intersection causing his motor vehicle to strike anothervehicle, thereby causing the death of Allison Matzdorf, Jenni Linn Anderson and Jennifer Roberts."
Count II was identical to count I except that it named only Ana Pryor (a passenger in the defendant's car) as the victim.Count VII, the next remaining count, was similar to count I, but it omitted the element of the influence of alcohol. CountVIII was identical to count VII but named only Pryor as the victim. Count XI was identical to count I but added, "whileunder the influence of alcohol, with an alcohol concentration in his blood of 0.08 or more." Count XII, the last remainingcount, was identical to count XI but named only Pryor as the victim.
The following evidence was uncontroverted at trial. In the early morning of October 13, 1997, Matzdorf, Anderson, andRoberts, all 16 years of age, left their homes to engage in homecoming weekend activities. In particular, the girls weregoing to "toilet paper" or "T.P." the home where the homecoming float was stored. Allison Matzdorf drove the other girls inher family's white Toyota Camry. Anderson sat in the front passenger seat and Roberts sat in the back seat. All three girlswore seatbelts. At approximately 4 a.m., the girls' white Camry was struck by the defendant's car at the intersection of Eolaand New York Roads in Aurora, Illinois, when the defendant ran a red light, driving 75 miles per hour in a 45-mile-an-hourzone. All three teenagers died as a result of injuries caused by the collision. Ana Pryor, the defendant's friend who was apassenger in the defendant's car, also died as a result of injuries caused by the collision. Pryor, whose husband had died theprevious year in another traffic accident, was the mother of three young children.
Stephen Peterson testified that, while stopped in his car at the intersection of Eola and New York Roads, he saw thedefendant's car strike the driver's side of the girls' white Camry at a 90-degree angle. The Camry became airborne andlanded in a ditch. The defendant's car was halfway in the ditch and the driveway of a nearby gas station. Petersonimmediately pulled into the gas station and asked someone to call the police.
Aurora police officer Ron Hinterlong testified that he arrived at the accident scene at approximately 4 a.m. All four womenappeared dead. The traffic signals functioned properly. The defendant asked Hinterlong, "Am I going to jail?" and "Isanybody as bad as I am?" Hinterlong noticed nothing unusual about the defendant's speech and was not close enough tosmell the defendant's breath.
The defendant was taken to a nearby hospital. At 5 a.m., approximately one hour after the collision, the defendant's bloodwas drawn. A toxicology test revealed that the defendant's blood- alcohol concentration (BAC) was 0.172. This test was runon serum rather than whole blood. The defendant's serum blood BAC converted to a whole blood BAC of 0.14 to 0.15.Pryor's BAC was 0.0836. Another blood draw performed at 7:20 the same morning yielded a 0.097 BAC test result for thedefendant. The three teenaged girls tested negative for chemicals in their blood except for Matzdorf, who tested positive forcaffeine.
Just after the collision, the defendant's car contained the following items: on the passenger-side floor board, a partly fullbottle of Special Brew, a brown paper bag containing a broken bottle of an alcoholic beverage called St. Ides, a liquor storereceipt from the previous evening, and, on the driver's-side floor board, an open, party full bottle of Canadian Mist. TheSpecial Brew contained 6% ethanol, and the Canadian Mist contained 42% ethanol.
Two employees of the Hollywood Casino in Aurora testified that they both served the defendant Long Island iced teas at10:50 p.m., on October 16, 1997, the evening before the accident, and at 1 or 1:30 a.m. on the morning of the accident. TheLong Island iced teas contained tequila, rum, vodka, cognac, and gin. Pryor drank a daiquiri. Twenty minutes after thedefendant ordered his second Long Island iced tea, he ordered a shot of Hennessy but then canceled the order. NeitherHollywood Casino employee saw any signs that the defendant was intoxicated.
Tim Rueckert, an Illinois police officer employed by the Illinois Gaming Board, testified that he shared an elevator with thedefendant at the casino at about 1 o'clock on the morning of the accident. The defendant did not have a drink with him at thetime. Rueckert saw the defendant again at about 2:30 a.m. The defendant finished drinking a half-full 10-ounce cup ofbrown beverage and left the casino building. The defendant told Rueckert that Pryor was upset because their friends had leftwithout them. Rueckert noticed no signs that the defendant was impaired by alcohol.
Sunshine Latham, a server at an Aurora Denny's restaurant, testified that she served the defendant breakfast atapproximately 3:20 on the morning of the accident. The defendant ordered and ate two pancakes, two eggs, two sausages,and two strips of bacon. After eating that, the defendant ordered and ate four more eggs and four more sausages. Thedefendant was loud, rude, and smelled of alcohol. In response to the defendant's question, Latham told the defendant shecould not serve alcohol. The defendant then told Latham that he did not want "the f---ing water." Latham testified that, asthe defendant left the restaurant, he staggered and leaned on Pryor's shoulder. However, Deborah Porter, an Aurora policeofficer, testified that, during an interview, Latham did not use the word "staggered." Instead, Latham said that the defendanthad had trouble walking.
Officer Hinterlong testified that he briefly saw the defendant and Pryor at the Denny's restaurant about half an hour earlierthat morning. The defendant was eating breakfast. Hinterlong did not notice anything unusual about the defendant at thattime.
Two expert witnesses provided the following opinions after analyzing the accident scene and the defendant's car. Theaccident was not caused by any defect or malfunction associated with the defendant's car. The car driven by Matzdorf wastraveling 43 miles per hour and the defendant's car was traveling 75 miles per hour just prior to impact.
The jury found the defendant guilty of all six counts. On August 14, 1998, the trial court denied the defendant's posttrialmotion. During the sentencing hearing, the prosecutor asked that the probation officer's calculation that the defendant hadspent 302 days in custody awaiting trial be disregarded because the defendant was out on bond for most of that time. Thetrial court agreed with the prosecutor, stating:
"[A]s I recall the bond in this case, it was in essence a 24 hour curfew as far as the bond after release from the jail,after posting bond; is that correct?"
Defense counsel agreed.
During the sentencing hearing, the State presented one witness in aggravation, Aurora police officer Mark J. Butler. Butlertestified that, on September 27, 1997, he stopped and arrested the defendant for driving 84 miles per hour in a 30-mile-per-hour zone. The defendant did not have his driver's license at the time because he was driving on a ticket for another movingviolation. Butler stated that the defendant was very agreeable.
The presentence report indicated that the defendant had three prior convictions of misdemeanor battery and one convictionof criminal trespass to residence, all in 1992 and 1993. Alcohol was a factor in these incidents. The defendant had threeorders of protection entered against him for three different women. The defendant had two pending battery charges forarrests made in May and August 1997. The defendant also had been convicted of speeding in 1996 in Texas and Oklahoma.After interviewing the defendant, an alcoholism evaluator diagnosed the defendant as a "Significant Risk."
Several of the victims' family members spoke of their grief and loss. Two witnesses testified on behalf of the defendant. Aformer coworker and a longtime friend of the defendant testified that the defendant was not a violent person and showed nosigns of an alcohol problem. The defendant also presented letters of support written by longtime friends of the defendant,indicating that the defendant had a good character. The defendant then apologized to the victims' families, stating, "[I]f Icould take the place of the victims, I would."
In imposing sentence the court recognized the defendant's good work record and that he had started an alcohol abuseprogram. The trial court also noted the serious harm caused by the accident, the defendant's history of three batteryconvictions and traffic offenses, the number of people killed, and the need to deter others. The trial court then sentenced thedefendant to two concurrent terms of 13 years' imprisonment for the convictions entered on counts I and II. The trial courtentered judgment on the remaining four counts but did not sentence the defendant for the convictions.
The trial court also ordered the defendant to pay restitution to the victims' families for emergency medical service costs andfuneral and burial expenses in one lump sum within two years of his release. Because the State did not present proof of thecosts and expenses, the trial court ordered the State to obtain proof of expenses and prepare a restitution order within 14days. This order was entered August 14, 1998.
On August 24, 1998, the defendant filed a motion to reconsider sentence, arguing that the term was excessive. The trialcourt denied the motion, and, on September 22, 1998, the defendant filed a notice of appeal.
On January 14, 1999, the trial court ordered the defendant to pay the victims' family members a total of $27,870.98 "in asingle installment within two years of the Defendant's release." The order concluded, "Entered at Waukegan Illinois, NuncPro Tunc, August 14, 1998, this 14th day of January, 1999."
On appeal, the defendant first argues that the sentence of two concurrent 13-year terms is excessive given his highrehabilitative potential and unextraordinary nature of the offense. The State argues that the trial court did not abuse itsdiscretion in sentencing the defendant. We agree with the State.
Reckless homicide is normally a Class 3 felony (720 ILCS 5/9-3(d)(2) (West 1996)), but it becomes a Class 2 felony whenthe defendant commits the offense while under the influence of alcohol (720 ILCS 5/9-3(e) (West 1996)). The sentencingrange for a term of imprisonment for a Class 2 reckless homicide conviction is 3 to 14 years. 720 ILCS 5/9-3(e) (West1996).
When sentencing a defendant, the trial court must carefully weigh both the mitigating and aggravating factors to reach a fairand just result based on the particular circumstances of the offense and the defendant. People v. Palmer, 162 Ill. 2d 465,483-84 (1994). We will not deem a sentence within the statutory range excessive unless it varies greatly with the spirit andpurpose of the law or is manifestly disproportionate to the nature of the offense. Because the trial court is in the bestposition to create a sentence that balances the need to protect society with the rehabilitation of the defendant, we will notdisturb a trial court's sentencing decision unless it is an abuse of that discretion. People v. Spencer, 303 Ill. App. 3d 861,871 (1999).
After carefully reviewing the record of the sentencing hearing, we conclude that the trial court properly considered theappropriate factors in aggravation, such as the defendant's repeated history of speeding and violent behavior while under theinfluence of alcohol. The trial court also appropriately considered the seriousness of the offense and the fact that four peopledied as a result of the defendant's conduct. The defendant's sentence was less than the 14-year statutory maximum for theoffense, even though the defendant caused the death of four people. Therefore, we find no abuse of discretion in the trialcourt's sentencing decision. See People v. Barker, 298 Ill. App. 3d 751, 755 (1998) (a 13-year sentence for recklesshomicide held not to be an abuse of discretion when the defendant, while under the influence of alcohol and traveling 70miles per hour, ran a red light, striking and killing a woman in another vehicle).
The defendant argues that his sentence is excessive because he did nothing more than make two common driving errors,speeding and running a red light, and there would have been no accident "[i]f the Toyota had not been in the intersection atthe precise moment that it was." These arguments are absurd at best and disingenuous at worst. It is like arguing that amurder would not have happened if the victim had not been standing in front of a loaded gun aimed and shot in hisdirection.
Next, the defendant, citing section 5--8--7(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5--8--7(b) (West1996)), urges this court to remand this case to allow the trial court to determine whether the defendant should have receivedcredit for the time he spent out on bond awaiting trial with the condition that he remain in his home. The defendantacknowledges that defense counsel failed to raise the issue, but he argues that this constituted ineffective assistance ofcounsel or that the trial court should have considered the issue sua sponte. We disagree with the defendant.
The record indicates that the trial court did consider the issue and properly determined that its previous order that thedefendant remain at home while released on bond was a condition of his release and not custodial. During the sentencinghearing, the prosecutor requested that the probation officer's calculation that the defendant spent 302 days in custodyawaiting trial be disregarded because the defendant was released on November 24, 1997, 34 days after his arrest. Afterdiscussing the issue, the trial court agreed with the prosecutor, and then defense counsel agreed with the trial court.
Further, we determine that the trial court did not err in finding that the defendant was not entitled to credit for the time hespent at home after his release on bond.
Section 5--8--7(b) provides:
"The offender shall be given credit on the determinate sentence or maximum term and the minimum period ofimprisonment for time spent in custody as a result of the offense for which the sentence was imposed, at the ratespecified in Section 3--6--3 of this Code. Except when prohibited by subsection (d), the trial court may give credit tothe defendant for time spent in home detention *** if the court finds that the detention or confinement was custodial."(Emphases added.) 730 ILCS 5/5--8--7(b) (West 1996).
Although section 5--8--7 does not define "home detention," section 5--8A--2(C) of the Electronic Home Detention Law(730 ILCS 5/5--8A--2(C) (West 1996)) makes clear that the defendant in this case was not on home detention within themeaning of the Code. Home detention is defined as:
"[T]he confinement of a person convicted or charged with an offense to his or her place of residence under the termsand conditions established by the supervising authority." 730 ILCS 5/5--8A--2(C) (West 1996).
A supervising authority is an "officer or agency charged with authorizing and supervising the home detention." 730 ILCS5/5--8A--2(E) (West 1996). Because the defendant in this case was released on his own and not under the supervisingauthority of any officer or agency or even electronically monitored, the requirement that he remain at home was a conditionof his release and not custodial. Therefore, the trial court did not err by failing to give the defendant credit for this time.
Next, the defendant argues that his convictions for counts VII, VIII, XI, and XII must be vacated under the one-act-one-crime rule. Judgments of conviction were entered for these counts as well as counts I and II. However, the defendant wassentenced only for counts I and II. The State argues that the defendant waived this issue by failing to raise it below. Yet, theState concedes that, notwithstanding waiver, the trial court should have vacated these convictions.
We agree with the State that the defendant has waived this argument because he failed to raise the issue at trial and in awritten posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, we choose to address the argumentunder the plain error doctrine because the defendant's convictions affect his substantial rights. See People v. Smith, 183 Ill.2d 425, 430 (1998).
It is uncontroverted that the defendant's convictions for counts VII, VIII, XI, and XII were based on the same physical act asthe convictions for counts I and II. Thus, we vacate the convictions for counts VII, VIII, XI, and XII. See People v. Duncan,261 Ill. App. 3d 957, 959 (1994).
Finally, the defendant argues that the trial court erred by ordering him to pay $27,870.98 in a lump sum in restitutionwithout properly considering his ability to pay. The State contends that the trial court did not abuse its discretion. We agreewith the defendant.
When deciding whether a defendant must pay restitution, a trial court need not consider the defendant's ultimate ability topay. However, the trial court must consider the defendant's ability to pay when determining the method and time ofpayment. People v. Sams, 238 Ill. App. 3d 825, 829 (1992); People v. Mitchell, 241 Ill. App. 3d 1094, 1098-99 (1993); 730ILCS 5/5--5--6(f) (West 1996). Section 5--5--6(f) of the Code provides:
"Taking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall bepaid in a single payment or in installments, and shall fix a period of time not in excess of 5 years, not includingperiods of incarceration, within which payment of restitution is to be paid in full. However, if the court deems itnecessary and in the best interest of the victim, the court may extend beyond 5 years the period of time within whichthe payment of restitution is to be paid. If the defendant is ordered to pay restitution and the court orders thatrestitution is to be paid over a period greater than 6 months, the court shall order that the defendant make monthlypayments; the court may waive this requirement of monthly payments only if there is a specific finding of good causefor waiver." 730 ILCS 5/5--5--6(f) (West 1996).
Here, on August 14, 1998, the trial court ordered the defendant to pay the victims for medical and burial expenses withoutknowing the amount of such costs. At the time of this order, the State had not submitted proof of these costs and expenses.Yet, the trial court ordered the defendant to pay the unknown amount in one lump sum within two years of his release fromprison. It was well after the trial court denied the defendant's posttrial motion that the State presented the court with proofof the victims' costs and expenses. The trial court then ordered the defendant to pay the victims' families $27,870.98. Thisorder was entered "Nunc Pro Tunc, August 14, 1998, this 14th day of January, 1999." Thus, the trial court did not know theamount of the victims' costs and expenses when it first ordered the defendant to make restitution within two years of hisrelease from prison. Without knowing the amount to be repaid, the trial court could not have considered the defendant'sability to pay. Accordingly, we remand this cause for a hearing regarding the defendant's ability to pay the victims' costsand expenses. We note that, on remand, the trial court is not limited in setting the amount of payment or the time period inwhich it must be paid.
We also note that the order was improper as a nunc pro tunc order because the January 14, 1999, order did not make therecord speak for something that was done previously. See In re Marriage of Breslow, 306 Ill. App. 3d 41, 53-54 (1999).Rather, it added new findings into the record.
The State claims that the defendant waived this issue by failing to raise it in a posttrial motion. We find this claim whollywithout merit. More than 30 days had passed between the date of final judgment in this case and the date on which the Statepresented the court with proof of the victims' costs and expenses. Thus, the State's claim of waiver fails.
We also find People v. Brooks, 158 Ill. 2d 260 (1994), a case cited by the State, completely distinguishable. In Brooks, thedefendant argued only that the time period for repayment ordered by the trial court did not comply with the time limitationset forth in section 5--5--6(f) of the Code. Further, unlike the case at bar, there is no indication that the Brooks court did notknow the amount of restitution to be paid before entering its order. Thus, Brooks is not controlling here.
For these reasons, we affirm the decision of the circuit court of Du Page County regarding the sentencing of the defendant;we vacate the defendant's convictions of Counts VII, VIII, XI, and XII; and we reverse the trial court's January 14, 1999,order regarding the amount, time, and manner of the payment of restitution and remand the cause for a hearing regardingthe defendant's ability to pay.
Affirmed in part, vacated in part, and reversed in part; cause remanded.
GEIGER and RAPP, JJ., concur.