People v. Prather

225 N.E.3d 1

2022 IL App (4th) 210609

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.David W. PRATHER, Defendant-Appellant.

NO. 4-21-0609

Appellate Court of Illinois, Fourth District.

Filed December 21, 2022

Appeal from thè Circuit Court of Woodford County, No. 20CF103, Honorable Michael L. Stroh, Judge Presiding.

James E, Chadd, Catherine K. Hart, and Natalia Galica, of State Appellate Defender’s Office, of Springfield, for appellant.

Gregory ?. Minger, State’s Attorney, of Eureka (Patrick Delfino, David J. Robinson, and John Connor, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

JUSTICE CAVANAGH delivered the judgment of the court, with opinion.

¶ 1 The circuit court of Woodford County sentenced defendant, David W. Prather, to an extended prison term of eight years for aggravated driving under the influence of alcohol (DUI). See 625 ILCS 5/11-501(a), (d)(2)(B) (West 2020); 730 ILCS 5/5-5-3.2(b)(1) (West 2020). He appeals, challenging the sentence on two grounds.

¶ 2 First, he disputes his eligibility for an extended prison term. We find this sentencing issue to be procedurally forfeited. Further, because we are unconvinced that extended-term sentencing was a clear or obvious error in this case, the doctrine of plain error, invoked by defendant, does not avert the forfeiture. This lack of a clear or obvious error likewise defeats his alternative claim that defense counsel rendered ineffective assistance by causing the forfeiture.

¶ 3 Second, defendant contends that, in the sentencing hearing, the circuit court abused its discretion by ignoring six mitigating factors. This sentencing issue also is procedurally forfeited. Defendant accuses defense counsel of rendering ineffective assistance by causing this forfeiture as well. To prove this claim of ineffective assistance, defendant would have to show a reasonable probability that the six allegedly mitigating factors, had they been raised to the circuit court, would have resulted in a lighter sentence. We find no such reasonable probability.

¶ 4 Therefore, we affirm the judgment.

¶ 5 I. BACKGROUND

¶ 6 The State charged that on July 6, 2020, in Woodford County, defendant committed a Class 2 felony, aggravated DUI. See 625 ILCS 5/11-501(a), (d)(2)(B) (West 2020). The DUI was aggravated, the State alleged—and hence was a Class 2 felony instead of a Class A misdemeanor (see id. § 11-501(c)(1))—because defendant previously committed two offenses of DUI in Mississippi. The nonextended term of imprisonment for a Class 2 felony was not less than three years and not more than seven years. 730 ILCS 5/5-4.5-35(a) (West 2020). The extended term was not less than 7 years and not more than 14 years. Id. The prosecution notified the defense of its intention to seek extended-term sentencing;

¶ 7 The prosecution and the defense disagreed on whether defendant, if convicted of aggravated DUI, could be sentenced to an extended term of imprisonment. The prosecution maintained that because defendant had a prior conviction of attempted aggravated assault from 2012 in Mississippi (see Miss. Code Ann. § 97-3-7(2)(b) (West 2012)), section 5-5-3.2(b)(1) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b)(1) (West 2020)) made him eligible for an extended term. That section provided as follows:

"(b) The following factors, related to all felonies, may be considered by the court as reasons to impose an extended term sentence under Section 5-8-2 [(id. § 5-8-2)] upon any offender:

(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois or any other jurisdiction of the same or similar class felony or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time, spent in custody, and such charges are separately brought and tried and arise out of different series of acts[.]" Id. § 5-5-3.2(b)(1).

According to the defense, that statute was inapplicable. The defense argued that, under the appellate court’s interpretation of section 5-5-3.2(b)(1) in People v. Bailey, 2015 IL App (3d) 130287, 395 Ill.Dec. 862, 39 N.E.3d 329, the attempted aggravated assault was not a "similar class felony." 730 ILCS 5/5-5-3.2(b)(1) (West 2020). In a preplea motion titled "Motion For Deter- mination of Sentencing Range," the original defense counsel requested a ruling, on the authority of Bailey, that defendant was "not extended-term eligible." A hearing on this motion was scheduled, but after the substitution of new defense counsel, the hearing was called off and was never rescheduled.

¶ 8 Represented by new defense counsel, defendant pleaded guilty to unaggravated DUI and waived his right to a jury trial. In his written guilty plea, the following qualification was penned in: "Defendant does not waive requirement for State to prove prior convictions which he has been given notice of pursuant to 725 ILCS 5/111-3 (Enhanced Sentencing)." When admonishing defendant on his guilty plea, the circuit court explained to him that, actually, it was the commission of two prior offenses of DUI that would elevate simple DUI to aggravated DUI and that prior convictions of DUI would not have to be proven. After conferring with defense counsel, defendant persisted in his guilty plea. The court accepted the guilty plea to unaggravated DUI, ordered a presentence investigation report, and set the matter for sentencing.

¶ 9 In the sentencing hearing, the circuit court inquired if any corrections needed to be made to the presentence investigation report. Defense counsel answered that he disputed the part of the report listing 'two previous convictions of DUI. According to defense counsel, "[t]hey were not adjudicated as guilty in either of those two counties in Mississippi." Defense counsel did not dispute the authenticity of the certified court records the prosecutor had obtained from Benton and Tippah Counties, Mississippi. Defense counsel insisted, however, that those records were insufficient on their face because they failed to show convictions. "I am not contesting he was arrested for those two offenses," defense counsel explained, "but he was not adjudicated in any way, shape, or form guilty of those offenses in Tippah of Benton Counties." To reinforce this distinction, defense counsel called defendant to the stand. Defendant testified that, in the Benton County case, he received a ticket for DUI but that, in lieu of conviction, the authorities "gave [him] the option to go to school, so [he] went to a school." He likewise denied having been convicted in the Tippah County case. "I never went to court on it," he recounted. "It was, like that was it. It was an under-the-table kind of thing." The defense presented a certified copy of defendant’s driving record from Mississippi, which lacked any mention of DUI.

¶ 10 The circuit court reiterated, however, that the aggravated DUI statute spoke of violations, not convictions. The statute read, "A third violation of this Section or a similar provision is a Class 2 felony." (Emphasis added.) 625 ILCS 5/11-501(d)(2)(B) (West 2020). The certified court records from Mississippi appeared to presuppose commissions of DUI. The records from Benton County, for example, included a document, signed by defendant, in which he "waived my right to an attorney in justice court, knowing this to be my 1st offense on DUI charges." In that document, the judge ordered defendant to "attend [Mississippi Alcohol Safety Education Program] school." Also, the records from Tippah County included a traffic ticket, in which the issuing police officer stated under oath that defendant had been driving with an "alcohol concentration" of "[0].13%," a test result that exceeded the legal limit of "[0].08%." In addition, there was an order, signed by a Tippah County judge, stating that defendant had pleaded guilty to DUI, for which was sentenced to time served. In the circuit court’s view, the records tended to prove, if not convictions, then at least two commissions of DUI in Mississippi: a violation in Benton County and another violation in Tippah County. Consequently, the court determined that the present DUI was aggravated, a Class 2 felony. See id.

¶ 11 The circuit court further determined (without further explanation) that defendant was "eligible for extended-term sentencing *** based upon the aggravated assault from 2012 in Tippah County, Mississippi "

¶ 12 Next, the circuit court scrutinized the factors in mitigation and aggravation. The court said, "In looking at factors in mitigation this court believes applies to this case[,] the court finds none." But the court found three factors in aggravation. First, the court found that "defendant’s conduct threatened serious physical harm to others, including himself." The arresting police officer, Illinois State Trooper Andrew Krusz, had testified in the sentencing hearing that defendant "blew a [0].138" (to quote from Krusz’s testimony). Also, Krusz had authenticated a squad car video of defendant driving through a construction zone while his driving ability evidently was impaired. According to the court; this video

"showed the defendant’s vehicle careening through a construction zone while a worker was present holding up a yield sign[,] knocking over a barrel that was a mere feet away from the construction worker in the construction zone, and by the grace of God missing that individual and not hitting anything else."

Second, defendant had a "rather extensive" criminal history, which included "several offenses of violence." Third, the court perceived a need to deter other drivers from driving while intoxicated and endangering construction workers. Considering these aggravating factors, the lack of any mitigating factors, and "the nature and circumstances of the offender and the offender’s conduct," the court imposed a sentence of eight years’ imprisonment. This sentence was an extended prison term that was...