People v. Mischke, 2018 IL App (2d) 160472 (July). Episode 520 (Duration 8:14)
Defendant was resentenced to an aggregate sentence larger than his original sentence.
Defendant, appeals from the judgment of the circuit court of Lake County resentencing him upon remand to consecutive terms of 26 years and 7 years in prison.
Following a bench trial, defendant was found guilty of, among other things, one count of first-degree murder (720 ILCS 5/9-1(a)(3)) and one count of aggravated driving while under the influence (DUI) with cocaine in his urine (625 ILCS 5/11-501(a)(6), (d)(1)(A).
The charges arose out of defendant’s killing another driver while fleeing from a retail store into which he had intentionally driven his vehicle and from which he had stolen a television.
Defendant was sentenced to concurrent terms of imprisonment of 26 years on the murder conviction and 7 years on the DUI conviction.
In a prior appeal this court vacated his sentences, as they were required to be consecutive (see 730 ILCS 5/5-8-4(d)(1)), and remanded for resentencing. See People v. Mischke, 2014 IL App (2d) 130318, ¶¶ 23, 25.
Upon resentencing the trial judge did not budge.
Thus, the court resentenced defendant to consecutive terms of 26 years’ imprisonment on the murder conviction and 7 years’ imprisonment on the DUI conviction.
The New Appeal
On appeal, defendant contends that the trial court abused its discretion in imposing the same sentence for each offense when the aggregate sentence of 33 years exceeded the original aggregate of 26 years.
The General Rule
Generally, under section 5-5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5 4(a)), a trial court at resentencing may not impose a more severe sentence.
Specifically, the code says:
Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing.
See also 730 ILCS 5/5-4.5-50(d), which imposes the same restriction on a trial judge after a motion to reduce sentence is filed. It says:
“…The court may not increase a sentence once it is imposed…”
Our supreme court has long held that “a harsher sentence imposed after a successful appeal or motion to reconsider is only proper if it is based on additional bad conduct performed by the defendant after the original sentencing.” People v. Moore, 177 Ill. 2d 421, 433 (1997). A defendant should not have to run the risk that challenging a sentence might result in a longer sentence and should not be penalized for his efforts to seek relief from the sentence he received. People v. McBride, 395 Ill. App. 3d 204, 209 (2009).
What About Consecutive Sentences?
However, when a trial court is required to resentence a defendant to consecutive sentences, section 5-5-4(a) applies only to the individual sentences, not the aggregate sentence. People v. Harris, 366 Ill. App. 3d 1161, 1165-66 (2006).
Indeed, our supreme court has stated that each conviction results in a discrete sentence that must be assessed individually. People v. Carney, 196 Ill. 2d 518, 530 (2001). As such, consecutive sentences do not constitute a single sentence and cannot be combined as though they were one sentence for one offense.
Thus, regardless of any increase in the aggregate sentence, an individual sentence on remand does not violate section 5-5-4(a), provided that it does not, in the absence of any new aggravating evidence, exceed the original individual sentence. Harris, 366 Ill. App. 3d at 1165-66; People v. Sanders, 356 Ill. App. 3d 998, 1005 (2005).
Thus, defendant’s reliance on the increase in the aggregate of the sentences is misplaced.
Here the trial judge explained that the appropriate sentence for each offense remained the same as originally imposed and that to shorten either sentence would deprecate the seriousness of the offense.