People v. Carron

August 24, 1998

                               NO. 5-97-1067

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, )  Appeal from the
                                     )  Circuit Court of
     Plaintiff-Appellee,             )  St. Clair County.  
                                     )  
v.                                   )  No. 95-CF-937
                                     )  
WILLIAM CARRON,                      )  Honorable
                                     )  James W. Campanella, 
     Defendant-Appellant.            )  Judge, presiding.  

_________________________________________________________________

     JUSTICE HOPKINS delivered the opinion of the court:  
     The defendant, William Carron, was charged by indictment with
two counts of aggravated reckless homicide and two counts of
reckless homicide.  The jury also was instructed on the lesser-
included offense of driving while under the influence of alcohol
(DUI), a misdemeanor (625 ILCS 5/11-501(a)(1) (West 1994)).  The
jury found defendant not guilty of the felony offenses and guilty
of the  DUI. The court sentenced defendant to serve a periodic term
of imprisonment of 364 days in the county jail (730 ILCS 5/5-7-1(a)
(West 1996)), which allowed defendant's release during the day to
enable him to continue his employment, and to pay a $1,000 fine. 
The court denied defendant the good-behavior allowance as provided
in the County Jail Good Behavior Allowance Act (730 ILCS 130/1 et
seq. (West 1996)), because the trial court specifically found "that
physical harm upon another person was committed during the course
of the DUI."  See 730 ILCS 130/3 (West 1996).  On appeal, defendant
contends as follows:  (1) the trial court erred in admitting
victim-impact statements at the sentencing hearing, (2) the trial
court erred in failing to specify on the record the particular
evidence, information, factors in mitigation and aggravation, or
other reasons that led to the sentencing determination, (3) the
sentence was excessive, and (4) the trial court abused its
discretion by imposing a sentence which did not provide for an
allowance for good behavior.  
     Although defendant's appeal addresses only sentencing issues,
a brief statement of the facts is necessary to understand this
case.  On May 24, 1995, at approximately 7:30 p.m., a two-vehicle
collision occurred on Illinois Highway 158 near Millstadt,
Illinois.  Kara Morton, the driver of a Chevrolet automobile, and
her two-year-old daughter, Lauren, died in the accident.  Defendant
was the driver of the other vehicle.  Evidence was presented that
defendant's blood-alcohol level was .247 at the time of the
accident.  Testimony from defendant's treating physician and a
nurse in the emergency room of the hospital, as well as the
testimony of the radiology technician who administered defendant's
CAT scans the night of the accident, established that defendant
emitted a strong odor of alcohol that night.  Conversely, other
evidence was presented that there was no indication of defendant's
intoxication.  Conflicting evidence was presented concerning the
location of the accident.  One officer testified that the accident
occurred in the center of the road, while another officer testified
that the collision occurred in defendant's lane of traffic. 
Lastly, evidence was presented that Kara may have taken evasive
action immediately prior to the collision.  
     Defendant first contends that the court erred in admitting
victim-impact statements at sentencing because the jury determined,
through defendant's acquittal on the felony charges, that defendant
was not the proximate cause of the accident, because the victims
who made statements were not "crime victims" as defined in the
statute, and because this was not a "violent crime" as defined in
the statute.  See 725 ILCS 120/3(a),(c) (West 1996).  We disagree
with defendant's reading of the statute.  
     Section 3(a) of the Bill of Rights for Victims and Witnesses
of Violent Crime Act defines a "victim" in pertinent part as
follows:
     "(3) *** the spouse, parent, child[,] or sibling of a person
     killed as a result of a violent crime perpetrated against the
     person killed ***."  725 ILCS 120/3(a) (West 1996).
Additionally, section 3(c) of the Bill of Rights for Victims and
Witnesses of Violent Crime Act defines a "violent crime" in
pertinent part as follows:
          "`Violent Crime' means *** any violation of *** Section
     11-501 of the Illinois Vehicle Code, or a similar provision of
     a local ordinance, if the violation resulted in personal
     injury or death ***."  725 ILCS 120/3(c) (West 1996).  
     When construing the meaning of a statute, a court must
ascertain and give effect to the intent of the legislature.  People
v. Robinson, 172 Ill. 2d 452 (1996).  One of the most reliable
indicators of the legislature's intent is the language of the
statute itself, and the statute's language must be given its plain
and ordinary meaning.  Robinson, 172 Ill. 2d  at 457.  If the
language of the statute is clear and unambiguous, no further
construction aids are needed to apply the statute.  Robinson, 172 Ill. 2d  at 457.
     Defendant would have this court find that the jury's acquittal
on the manslaughter/reckless homicide charges leads to the
irrefutable conclusion that Kara's death was in no way the result
of defendant's violation of section 11-501(a) of the Illinois
Vehicle Code (625 ILCS 5/1-101 et seq. (West 1994)).  Therefore,
defendant argues, his conviction for a misdemeanor DUI does not
qualify as a violent crime under the clear and unambiguous language
of the statute.  Defendant's position is an untenable effort to
require the trial court, and this court, to ignore the forest of
logic by exclusively concentrating on the trees of the different
verdicts.  The evidence of DUI as presented herein, and accepted by
the jury in its conviction for DUI, was that the defendant suffered
the impairment to his driving skills of nearly 2« times the
statutory definition of intoxication.  We therefore find that there
was a sufficient relationship between defendant's crime of DUI and
Kara's death to permit the application of sections 3(a) and (c) of
the Bill of Rights for Victims and Witnesses of Violent Crime Act
and allow the trial court to consider Kara's parents and two
brothers as "victims."  The statutory definition of "crime victim"
clearly applied to them.  At the sentencing hearing, only Kara's
mother and father read their statements into the record.  The trial
court's admittance of the victim-impact statements at defendant's
sentencing hearing was not error.  
     Defendant contends that the court erred when it failed to
specify on the record the basis for his sentence, as required by
section 5-4-1(c) of the Unified Code of Corrections (730 ILCS 5/5-
4-1(c) (West 1996)).  Section 5-4-1(c) applies to defendant, since
that section applies to sentencing for a violent crime, which
includes a DUI conviction wherein someone sustains personal injury. 
However,  we find that defendant has waived this provision.  At the
sentencing hearing, defendant failed to request a statement of the
court's reasons for the sentence.  The failure to make a request at
sentencing waives the requirement.  People v. Burton, 121 Ill. App.
3d 182 (1984).  Further, the court stated in its sentencing order
that the sentence was based "upon consideration of the
pre[]sentence investigation report, facts in evidence, statements
by both attorneys, and the defendant having been given an
opportunity to make a statement in his own behalf ***."  This was
an adequate specification of its reasons for the sentencing
determination.  
     Defendant also argues that the sentence imposed was excessive,
as the court failed to consider that defendant qualified for court
supervision under section 5-6-1(c) of the Unified Code of
Corrections (Code) or conditional discharge under section 5-6-1(a),
of the Code (730 ILCS 5/5-6-1(a),(c) (West 1996)), and that the
only evidence considered in aggravation was the victim-impact
statements that were erroneously admitted.  Further, defendant
claims that the court did not consider that he is gainfully
employed, a homeowner, and a "family man who supported his
dependents" and that the court did not consider the hardship that
a term of imprisonment would impose on his dependents.  
     A trial judge is in a better position to determine the
punishment to be imposed than a reviewing court.  People v. Streit,
142 Ill. 2d 13 (1991); People v. Perruquet, 68 Ill. 2d 149 (1977). 
A proper sentence is based upon the particular circumstances of
each individual case and depends upon such factors as a defendant's
credibility, demeanor, general moral character, mentality, social
environment, habits, and age.  Streit, 142 Ill. 2d  at 19;
Perruquet, 68 Ill. 2d  at 154.  A trial court's determination of a
proper sentence is entitled to great deference and weight; thus,
absent an abuse of discretion, a trial court's sentence will not be
overturned on review.  Streit, 142 Ill. 2d  at 18; Perruquet, 68 Ill. 2d  at 154.  Also, a court may consider other criminal conduct
at sentencing even where the defendant has been acquitted of that
conduct.  People v. Robinson, 286 Ill. App. 3d 903 (1997).  Where
a sentence is within statutory limits, it will not be deemed
excessive unless the sentence varies greatly with the purpose and
the spirit of the law or is manifestly disproportionate to the
nature of the offense.  People v. Davis, 291 Ill. App. 3d 552
(1997).  It is presumed that the trial court considered evidence
offered in mitigation at sentencing.  Davis, 291 Ill. App. 3d at
557.
     We find that the court properly considered all pertinent
evidence at trial and at the sentencing hearing before imposing its
sentence.  The sentencing judge heard all the evidence presented at
trial:  that Kara and Lauren died in the accident, that defendant
had an alcohol content of .247 that night, and that there was
evidence that suggested defendant was at fault, even if the jury
exercised leniency and gave him the benefit of the doubt in
exonerating him on the felony charges.  The court also was aware of
the impact on Kara's family.  In addition, the presentence
investigation revealed that defendant had a prior out-of-State
conviction for a DUI in 1978.  These factors in aggravation were
appropriate considerations in sentencing.  
     Similarly, the court also considered the factors in mitigation
that defendant was employed, that he supported his child, and that
he did not have an extensive criminal history.  The periodic
imprisonment imposed by the court reflects that it considered
defendant's employment and the financial hardship that defendant's
incarceration would otherwise impose.  The court considered all of
the evidence before it, and we cannot conclude that the court
abused its discretion in imposing defendant's sentence.    
      We next consider the issue of good-behavior credit.  At
sentencing, the trial court disallowed the good-behavior credit
because it found that Kara's and Lauren's deaths occurred during
the course of defendant's DUI, i.e., that defendant thereby
inflicted "physical harm upon another person in committing the
offense for which he is confined ***" (730 ILCS 130/3 (West 1996)). 
Defendant contends that the denial of a good-behavior allowance
under this provision was erroneous as the jury found him not guilty
of the reckless homicide counts, felonies that involve an element
of death or bodily harm to the victims, thus acquitting him of the
proximate cause of physical harm to Kara and Lauren. 
     Section 3 of the County Jail Good Behavior Allowance Act
provides that good behavior shall be denied to any person serving
a sentence for an offense wherein a person is physically harmed. 
730 ILCS 130/3 (West 1996); People v. Nesbitt, 216 Ill. App. 3d
1023, 1026 (1991).  Here, defendant was confined for driving under
the influence of alcohol, and Kara's and Lauren's deaths occurred
during the commission of this offense.  Even if defendant were
acquitted on other charges, he still committed and was confined for
an offense wherein two persons were physically harmed.  This was
sufficient to deny defendant credit for good behavior under the
statute.  The trial court could have reasoned that if defendant had
not been intoxicated, he could have taken evasive action to avoid
or lessen the force of the collision.  
     In addition, under section 3 of the County Jail Good Behavior
Allowance Act, a defendant serving a sentence of periodic
imprisonment "shall only be eligible to receive good behavior
allowance if authorized by the sentencing judge."  730 ILCS 130/3
(West 1996).  This language gives the trial court the discretion to
deny good-behavior credit when a periodic sentence is imposed, as
it was here.  Thus, unless the judge abused its discretion when
denying the good-behavior credit, his disallowance will not be
overturned on appeal.  We have already held that the trial court's
discretion was not abused when it imposed defendant's sentence;
therefore, for the same reasons that applied to defendant's
sentence, we find that the trial court did not abuse its discretion
in denying defendant good-behavior credit.  
                                CONCLUSION
     For the foregoing reasons, the judgment of the circuit court
of St. Clair County is affirmed.

     Affirmed.  

     CHAPMAN and RARICK, JJ., concur.