People v. Winningham

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 4th District Appellate » 2009 » People v. Winningham

State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0572 Rel

Case Date: 06/05/2009

Preview:Filed 6/5/09

NO. 4-08-0572 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEREK L. WINNINGHAM, Defendant-Appellant.

) Appeal from ) Circuit Court of ) Sangamon County ) No. 07CF1061 ) ) Honorable ) Robert J. Eggers, ) Judge Presiding. _________________________________________________________________ JUSTICE STEIGMANN delivered the opinion of the court: In April 2008, defendant, Derek L. Winningham, pleaded guilty to aggravated driving under the influence of alcohol (aggravated DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2006)). Following a July 2008 sentencing hearing, the trial court sentenced defendant to three years in prison. Defendant appeals, arguing that (1) the statutory sentencing provision requiring a trial court to find that "extraordinary circumstances" existed before the court may impose a sentence of probation is unconstitutionally vague and (2) assuming the statute is not unconstitutionally vague, the court abused its discretion by failing to find extraordinary circumstances existed. We disagree and affirm. I. BACKGROUND In September 2007, the State charged defendant with two counts of aggravated DUI under section 11-501(d)(1)(F) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501(d)(1)(F) (West 2006)). In April 2008, defendant pleaded guilty to count

II, which alleged that defendant had committed aggravated DUI in that, while in actual physical control of a Chevy Silverado, he had a blood-alcohol concentration (BAC) of 0.08 or more, in violation of section 11-501(a)(1) of the Vehicle Code (625 ILCS 5/11-501(a)(1) (West 2006)), and he was involved in a motorvehicle accident that was a proximate cause of Teresa Borero's death. Other than the State's dismissal of count I, which was based on the same accident, defendant entered an open guilty plea to count II--that is, he pleaded guilty without any agreement with the State. The trial court (1) accepted defendant's guilty

plea and (2) ordered the probation office to prepare a presentence investigation report (PSI). At defendant's July 2008 sentencing hearing, the trial court considered the PSI; the State's factual basis for defendant's guilty plea (as stated by the prosecutor at the April 2008 guilty-plea hearing); and the evidence the parties presented at the hearing, which showed the following. Shortly after midnight on September 2, 2007, a threecar accident occurred in Williamsville. The vehicles involved

included (1) a Chevy Silverado driven by defendant; (2) a Plymouth Voyager driven by Teresa with her husband, Alfred Borero, as the only passenger; and (3) a Ford F-150, driven by Teresa's brother, John Matthews, with Teresa's nephew, Robert Getman, as the only passenger. After purchasing gas, the Ford, followed by the Plym- 2 -

outh, missed the turn leading back to the Interstate highway. Both vehicles pulled off the road and onto the shoulder intending to turn around. As they waited on the shoulder of the road,

defendant's vehicle approached them from behind at 81 miles per hour in a 55-mile-per-hour zone and struck the Plymouth, which then struck the Ford, causing the Ford to overturn. As a result of the accident, John and Robert sustained head injuries that required hospitalization. In addition, Robert

injured his back, required stitches to repair a scalp laceration, and sustained severe trauma to his ear. Alfred suffered two

collapsed lungs, had surgery to repair his knee, and required prolonged physical therapy for his injured back. Teresa later

died as a result of the injuries she sustained in the accident. Defendant had been drinking prior to the accident, had a strong odor of alcohol on his breath, and his eyes were red and glassy. Defendant submitted to and failed a field sobriety test.

He submitted to a BAC test that showed his BAC was .227 (almost three times the legal limit). Defendant (1) did not have a criminal record, (2) was employed as a Williamsville fire department lieutenant, and (3) had saved numerous lives as a firefighter. After the accident,

defendant (1) completed 50 hours of alcohol counseling and (2) continually expressed his sincere remorse and regret that his actions caused Teresa's death and her relatives' injuries. At

defendant's request, the trial court admitted into evidence (1) a letter from counsel for Teresa's estate, which showed defendant's - 3 -

willingness to assist counsel's pursuit of a dramshop suit against the tavern where defendant had been drinking and (2) approximately 80 to 90 letters from family, friends, and firefighters describing defendant's positive impact on their lives. At the close of evidence, defendant asked the trial court to sentence him to probation. Defendant acknowledged that

the sentencing statute mandated a 3- to 14-year sentence, but he noted that the legislature had recently amended the statute to permit a sentence of probation if the court determined that "extraordinary circumstances" existed. Defendant emphasized his

voluntary assistance with the dramshop civil suit and asserted that his specific situation constituted such extraordinary circumstances. Prior to sentencing defendant, the trial court stated, in pertinent part, the following: "[The court] believe[s] that the efforts that [defendant] has engaged in since the time of the plea, and in fact, pleading guilty certainly [has] influenced the [c]ourt with the sentence, but *** [the court] can't find that the efforts that [defendant] has made to assist *** the decedent's family in their dramshop efforts rise to the level of extraordinary, and that leaves [the court] with *** [its] obligation *** to sentence *** - 4 -

[d]efendant to a term of imprisonment in the Department of Corrections [DOC]. It isn't

that [the court has not] given any consideration to the extraordinary life--[the court] shouldn't use that term, that's asking for reversal. It isn't that [the court has not]

given any consideration to the circumstances surrounding [defendant's] life to this point. As [the court] indicated earlier, he has done a good job. this point. He has been a good citizen to But it always seems that we come

back in these cases to the rock-bottom issue, and that is the need of deterrence and whether or not, [the court] believe[s], that any sentence other than a sentence to [DOC] would deprecate the seriousness of this offense, and [the court] believe[s] that it does. [The court] believe[s] that for the folks out there who aren't in this room, whose attitude about alcohol abuse and driving may be altered by these circumstances, that maybe people [who] read about this sentence in the newspaper will understand that if you drink and drive and somebody is killed, that at least *** you should be expecting a sentence to [DOC]." - 5 -

Thereafter, the trial court denied defendant's request for probation and sentenced him to three years in prison. This appeal followed. II. ANALYSIS A. Constitutionality of the Sentencing Statute Defendant argues that the statutory sentencing provision requiring a trial court to find that "extraordinary circumstances" existed before it may impose a sentence of probation is unconstitutionally vague (1) on its face and (2) because it is subject to arbitrary and discriminatory application. defendant's contentions in turn. 1. The Applicable Statutes and Standard of Review Section 11-501(a)(1) of the Vehicle Code, which pertains to DUI, provides as follows: "(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (1) the alcohol concentration in the person's blood or breath is 0.08 or more." 625 ILCS 5/11We address

501(a)(1) (West 2006). Section 11-501(d)(1)(F) of the Vehicle Code--the statute defendant was convicted under--states as follows: "(d)(1) Every person convicted of committing a violation of this [s]ection shall be guilty of aggravated [DUI] *** if: - 6 -

* * * (F) the person, in committing a violation of [section 11-501(a) of the Vehicle Code], was involved in a motor vehicle *** accident that resulted in the death of another person, when the violation of [section 11-501(a) of the Vehicle Code] was a proximate cause of the death." 625 ILCS 5/11-501(d)(1)(F)

(West 2006). Section 11-501(d)(2) of the Vehicle Code--the statute under which defendant was sentenced and the subject of this appeal--provides, in pertinent part, as follows: "Aggravated driving under the influence [(section 11-501(d)(1)(F) of the Vehicle Code)] is a Class 2 felony, for which the defendant, unless the court determines that extraordinary circumstances exist and require probation, shall be sentenced to *** a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person[.]" phasis added.) (Em-

625 ILCS 5-11-501(d)(2) (West

2006) (text as amended by Pub. Act 94-0113,

Download People v. Winningham.pdf