People v. Jones

Annotate this Case
NO. 4-96-0038




Plaintiff-Appellee, ) Circuit Court of
v. ) Piatt County
KYLE A. JONES, ) No. 95TR955
Defendant-Appellant. )
) Honorable
) John P. Shonkwiler,
) Judge Presiding.

PRESIDING JUSTICE COOK delivered the opinion of the


Defendant Kyle Jones pleaded guilty to driving under
the influence of alcohol (DUI) in violation of section 11-
501(a)(1) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-
501(a)(1) (West 1994)) and was sentenced to 10 months' condi-
tional discharge. Defendant appeals his sentence, alleging the
trial judge abused his discretion by denying a sentence of court
supervision because of the trial judge's personal belief that
supervision is never appropriate for DUI offenders. We reverse
and remand.
Defendant was arrested for DUI in May 1995. He submit-
ted to a breath test which indicated a blood-alcohol concentra-
tion (BAC) of 0.13. Defendant was charged with (count I) DUI in
violation of section 11-501(a)(2) of the Code (625 ILCS 5/11-
501(a)(2) (West 1994)), and (count II) DUI in violation of section 11-501(a)(1) of the Code (625 ILCS 5/11-501(a)(1) (West
1994)). Pursuant to a plea agreement, the State dismissed count
I and defendant pleaded guilty to count II. The presentence
report showed that defendant was 20 years old at the time of his
arrest. Defendant had no prior criminal record, but had a 1993
speeding ticket.
According to the presentence report, the night of
defendant's arrest, he had attended a small party and consumed
five beers. Defendant regretted leaving the party and acknowl-
edged that he should have acted more responsibly, but, according
to the presentence report, "does not feel he was under the
influence of alcohol and was capable of driving *** home." At
his sentencing hearing, defendant stated that, when he left the
party on the night of his arrest, he believed he was sober enough
to drive. He explained that he now knew that driving under those
conditions "was the wrong thing to do."
Defendant described his arrest as a "real eye-opener,"
and stated that he did not consume any alcohol between the date
of his arrest and his 21st birthday. Defendant reported that he
had never used any illegal drugs. Defendant stated that he would
never again operate a motor vehicle after drinking alcohol, nor
would he ever be a passenger in a car being driven by a person
who had been drinking. Defendant also reported that he had been
evaluated at Piatt County Mental Health Center. Defendant
received a Level I classification. This means defendant is
characterized as a "Minimal Risk." See 92 Ill. Adm. Code
1001.410, at 92-1001-13 (1996). As a result of this evaluation,
it had either been recommended or mandated that defendant attend
10 hours of remedial education, but defendant had not done so
because "they were busy." He was planning on completing that
program over the semester break and before returning to school at
Eastern Illinois University (EIU) in Charleston.
At the time of his sentencing hearing, defendant had
received his associate's degree and was pursuing a bachelor's
degree in physical education with a minor in English at EIU.
Defendant hoped to work as an English teacher and a coach,
eventually obtaining either a master's degree or a Ph.D. in
sports psychology. Defendant volunteered as an assistant at
basketball workshops, teaching second- through fifth-grade stu-
dents the fundamentals of the game. At his sentencing hearing,
defendant expressed his concerns that a DUI conviction would have
a negative impact upon his ability to get a job.
The probation officer who had prepared defendant's
presentence report recommended defendant be sentenced to six
months' conditional discharge with certain conditions. The
assistant State's Attorney noted that "[t]here is no question
that the defendant has been doing some good things in his commu-
nity, [he] has enrolled in school which we also like to see, [and
he] has plans for the future. Again, in a contrast to many of
the people that come through the court system." The State asked
the court to sentence defendant to 12 months' conditional dis-
charge, impose a $400 fine, and force defendant to comply with
the conditions recommended by the probation officer.
In determining defendant's sentence, the judge noted
that defendant had not completed the Piatt County Mental Health
Center educational program. The trial judge also stated that he
had read the report of the alcohol evaluator, and that the report
stated that defendant's answers to the evaluator "were not
reliably consistent and were evasive." The trial court sentenced
defendant to 10 months' conditional discharge. Defendant was
ordered to pay a fine of $350 plus costs and a monthly probation
fee. Additionally, defendant was required to (1) complete all
counseling as recommended by the probation office, (2) complete
alcohol treatment, and (3) attend a victim-impact panel. Defen-
dant filed a motion to reconsider sentence.
In the motion to reconsider sentence filed December 27,
1995, defense counsel first noted the decision in People v.
Bolyard, 61 Ill. 2d 583, 338 N.E.2d 168 (1975). In Bolyard, the
supreme court found that the trial judge had abused his discre-
tion by arbitrarily denying probation because the defendant fell
within the trial judge's category of disfavored offenders.
Bolyard, 61 Ill. 2d at 587, 338 N.E.2d at 170. Defense counsel
next noted this court's decision in People v. Foster, No. 4-94-
0451 (1994) (unpublished order under Supreme Court Rule 23),
rev'd on other grounds, 171 Ill. 2d 469, 665 N.E.2d 823 (1996).
At the trial court level, Foster was decided by the same judge as
in the present case. This court dismissed Foster's appeal for
noncompliance with Rule 604(d) (145 Ill. 2d R. 604(d)), but noted
that if this were not the result, the case would need to be
remanded for resentencing before a different judge because the
judge's comments reflected a belief that supervision was never an
appropriate sentence for a DUI offender.
Defense counsel noted that since the trial court's
sentencing of Foster in May 1994, the same judge had heard three
DUI cases in which the defendant asked for court supervision. In
all three cases, the judge denied the request. He cited People
v. Wright, No. 94-TR-524 (Cir. Ct. Piatt Co.), People v. Gibbs,
No. 94-TR-990 (Cir. Ct. Piatt Co.), and People v. Marlow, No. 94-
TR-943 (Cir. Ct. Piatt Co.), rev'd, No. 4-94-1028 (June 30, 1995)
(unpublished order under Supreme Court Rule 23). In Marlow, this
court quoted its discussion of the sentencing issue in Foster at
length before noting that defendant Marlow was denied supervi-
sion, in part, due to "the trial judge's antagonism to the law of
supervision." Marlow, No. 4-94-1028, slip order at 8 (June 30,
1995) (unpublished order under Supreme Court Rule 23). The case
was remanded for resentencing before a different judge.
Defendant's motion to reconsider also noted that since
May 1994, supervision had been granted in nine Piatt County DUI
cases, all of which had been heard by other judges. Finally,
defense counsel noted that since May 1994, motions to substitute
judges had been filed in 15 separate DUI cases where the instant
judge had been originally assigned to hear the case.
At the hearing on defendant's motion to reconsider
sentence, the trial judge distinguished Bolyard on the grounds
that the trial judge there had announced a fixed policy of
denying probation for defendants convicted of sexual offenses.
Defense counsel asked the court to take judicial notice of the
Rule 23 decisions of this court in Foster and Marlow and suggest-
ed this court therein had relied upon Bolyard to find that the
trial judge had a policy that he "couldn't give supervision in
DUI cases." Defense counsel asked the court to take judicial
notice of a number of cases referenced in the motion to reconsid-
er and brought into evidence through the individual docket sheets
maintained by the circuit clerk. The trial judge denied having
any such policy, stating that the "only thing the court is doing
is looking at the supervision statute [730 ILCS 5/5-6-1(c) (West
1994)] and applying the statute literally." The trial judge
further stated that he was "somewhat disappointed" that the
appellate court suggested that he had an antagonistic feeling
toward supervision, and that he was only trying to follow the
The trial court then pointed to section 6-205(a)(2) of
the Code, which provides for the mandatory suspension of driving
privileges for anyone convicted of DUI. 625 ILCS 5/6-205(a)(2)
(West 1994). The trial judge noted that the Code does not have a
supervision statute, and that section 6-205(a)(2) was enacted to
enhance public safety and welfare on the highways. The trial
judge then asked defense counsel whether he thought that "the
supervision statute in any way, or an order of supervision
attempts to evade the policy of" section 6-205(a)(2) of the Code.
Defense counsel replied, "Absolutely not," noting that the
supervision statute contains language denying supervision to a
person who, within the last 10 years, has already been convicted
of DUI. See 730 ILCS 5/5-6-1(c) (West 1995).
Focusing on the requirement that a defendant needs to
show that the public interest would best be served by an order of
supervision (see 730 ILCS 5/5-6-1(c) (West 1994)), the trial
judge asked defense counsel if he thought that "the public is
best served by the court not following the public policy of
safety and public welfare as set forth in the [V]ehicle [C]ode in
6-205(a)(2)." Defense counsel replied that he thought public
policy is best served by applying all of the statutes. The trial
judge stated that he may be misinterpreting the supervision
statute, and noted that the appellate court "has not addressed
the specific concerns of that statute in its remands back to this
court. And it would hope that it would do so in this case." The
trial court denied defendant's motion to reconsider; defendant
The imposition of a sentence is a matter of judicial
discretion, and the standard of review to determine whether a
sentence is excessive is whether a trial court abused that
discretion. People v. McCain, 248 Ill. App. 3d 844, 850, 617 N.E.2d 1294, 1299 (1993). Where a sentence falls within the
statutory guidelines, it will not be disturbed on review unless
it is manifestly disproportionate to the nature of the case.
People v. Nussbaum, 251 Ill. App. 3d 779, 783, 623 N.E.2d 755,
758 (1993). However, a trial court must in fact exercise its
discretion and may not refuse to consider an alternative simply
because the defendant is in a class disfavored by the court. See
People v. Zemke, 159 Ill. App. 3d 624, 628, 512 N.E.2d 374, 377
(1987); Bolyard, 61 Ill. 2d at 587, 338 N.E.2d at 170. Under
certain circumstances, the trial court may grant supervision if
it finds that (1) the offender is not likely to commit further
crimes; (2) the defendant and the public would best be served if
the defendant were not to receive a criminal record; and (3) in
the best interests of justice an order of supervision is more
appropriate than a sentence otherwise permitted under the Unified
Code of Corrections (Unified Code). 730 ILCS 5/5-6-1(c) (West
Defendant argues that the trial judge, notwithstanding
his comments to the contrary, has a personal policy against
granting court supervision in DUI cases. Defendant also argues
that the trial court "has stubbornly continued in its belief that
the court supervision statute does not apply to DUI offenders,"
and that the trial judge has done so in contravention of the
recent Rule 23 orders of this court. As evidence, defendant
points to the Piatt County DUI cases mentioned in his motion to
reconsider sentence. Defendant also argues that, at the very
least, the trial court has misapplied the law, and that this
application creates an absurd result that could not have been
intended by the legislature.
It is not clear that the trial judge continues to have
a personal policy against granting court supervision in DUI
cases. The trial judge expressly stated that he does not have a
personal policy against granting court supervision in DUI cases.
We choose to take him at his word. A trial court has a duty to
follow the decisions of the appellate court. See State Farm Fire
& Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539, 605 N.E.2d 539,
542 (1992). In the absence of evidence to the contrary, we will
assume the trial court properly fulfilled its duties.
In the present case, the trial judge expressed his
consternation that this court had not "addressed the specific
concerns of that statute in its remands back to this court." We
assume "that statute" is section 6-205(a)(2) of the Code. 625
ILCS 5/6-205(a)(2) (West 1994). A fair reading of the transcript
shows that the trial judge reads section 6-205(a)(2) of the Code
as overriding section 5-6-1 of the Unified Code. In other words,
it appears as though this judge has denied court supervision in
DUI cases because, in his opinion, section 6-205(a)(2) of the
Code sets forth a public policy (keeping drunk drivers off the
road) that will always outweigh the public's best interests in
seeing that a defendant does not have a permanent criminal
record. Under this logic, section 6-205(a)(2) of the Code
creates a barrier to court supervision that is impossible for a
defendant to surmount. We do not believe this is a correct
reading of the statute.
If the trial court is convinced that a DUI defendant is
not likely to commit another offense (one of the requirements for
court supervision), then the public policy considerations evinced
by section 6-205(a)(2) of the Code are significantly lessened.
At that point, it may well be in the public's best interests that
a one-time offender not have a permanent criminal record. The
propriety of supervision is within the domain of the legislature,
not the judiciary. The legislature has provided persons con-
victed of DUI, under certain circumstances, with a second chance
to keep their criminal record clean and nonexistent. The courts
of this State should not use countervailing public policies to
preclude supervision in all instances.
The trial judge, believing that the public policies
evinced in section 6-205(a)(2) of the Code preclude the granting
of court supervision in DUI cases, misapplied the law. Since the
trial judge believed, as a matter of law, that court supervision
could not be granted, we cannot say he exercised discretion in
fashioning defendant's sentence. Accordingly, we vacate
defendant's sentence and remand the cause for a new sentencing
Vacated and remanded.
GREEN, J., concurs.
STEIGMANN, J., specially concurs.
JUSTICE STEIGMANN, specially concurring:
Although I agree that reversal is appropriate in this
case, I disagree with much of what the majority has said, as well
as the appropriateness of saying it.
After defendant pleaded guilty to DUI, he asked the
trial court to sentence him to court supervision pursuant to
section 5-6-1 of the Unified Code (730 ILCS 5/5-6-1 (West 1994)).
However, the court denied defendant's request and sentenced him
instead to conditional discharge, indicating it believed that
section 6-205(a)(2) of the Code--which provides for the mandatory
suspension of driving privileges upon a DUI conviction--somehow
trumped the availability of supervision for a defendant convicted
of DUI. 625 ILCS 5/6-205(a)(2) (West 1994). The court noted
that the Code did not contain its own specific supervision provi-
sion and that section 6-205(a)(2) was enacted to enhance public
safety and welfare on the highways.
I agree with the majority that the trial court miscon-
strued section 6-205(a)(2) of the Code insofar as it held that
section precluded--or even limited--the trial court's granting of
supervision in DUI cases. Because this misconstruction by the
court clearly affected the court's exercise of its discretion in
determining whether to sentence defendant to supervision in this
case, we should vacate the court's sentence of conditional
discharge and remand for a further sentencing hearing in accor-
dance with the views expressed herein. The trial court would
then be expected to appropriately exercise its discretion regard-
ing whether supervision should be the sentence in this case, free
from the court's erroneous construction of section 6-205(a)(2) of
the Code. I would say no more.
First, this court's holding in this case is our con-
struction of the relationship between section 6-205(a)(2) of the
Code and section 5-6-1 of the Unified Code: one does not affect
the other. Having so held, everything else the majority says is
obiter dicta, including (1) how this particular trial court may
have sentenced other DUI offenders in the past, (2) the mitigat-
ing evidence defendant presented at the sentencing hearing, and
(3) the particular dialogue between the trial court and counsel
at the sentencing hearing, except for the discussion regarding
the court's analysis of section 6-205(a)(2) of the Code.
Had this court limited itself as suggested above,
construing section 6-205(a)(2) of the Code, that action would
have provided defendant with all the relief to which he is
entitled (or has even requested) from this court--namely, having
his sentence vacated and the case remanded for a new sentencing
On remand, it is at least possible that the trial court
would sentence defendant to supervision. Assuming the trial
court imposes a sentence of supervision on remand, then one won-
ders: what was the point of the rest of this court's opinion?
It is regrettable that the majority has chosen to
include all of this unnecessary dicta when the trial court, in
its remarks at the sentencing hearing, acknowledged that it could
have misconstrued section 6-205(a)(2) of the Code and specif-
ically requested this court to address the issue.
As a last matter, I note that defendant in this case
was not yet 21 years of age when he committed DUI. That means
that defendant could not lawfully consume alcoholic beverages to
begin with, much less drive while drunk. In my judgment, a trial
court may consider--as a significant factor in its decision to
deny a defendant's request for supervision in a DUI case--that he
was underage to consume alcohol when he committed DUI. Minors
who drink to excess, in violation of the law, and then drive, are
poor candidates for supervision.