People v. Arbuckle, 2016 IL App (3d) 121014-B (August). Episode 218 (Duration 7:08)
Bodily harm may be considered an aggravating factor without employing a double enhancement if the injury is above a threshold level.Well known that a death cannot be considered a factor in aggravation in a murder.
This guy whacks his girlfriend with a golf club breaking her arm. Then he jabbed her with the broken end. Her arm was pretty much shattered, a “Grade I open left ulna shaft fracture with comminution involving greater than 5 pieces.”
She couldn’t use it anymore.
Extended Term Issue
Defendant argued the judge improperly thought he was extended term eligible on the class 3 aggravated battery.
He was only extended term eligible on the class 2 aggravated domestic battery. Defendant is right that he was not extended term eligible on the class 3 but there is no evidence the judge thought he was. See 730 ILCS 5/5-8-4(a).
Double Enhancement Issue
Also, the defendant argued he was subjected to a double enhancement because the trial judge considered the victim’s harm as an aggravating factor.
We have some good language on this issue. In People v. Saldivar, 113 Ill. 2d 256 (1986), our supreme court stated:
“Certain criminal conduct may warrant a harsher penalty than other conduct, even though both are technically punishable under the same statute. Likewise, the commission of any offense, regardless of whether the offense itself deals with harm, can have varying degrees of harm or threatened harm. The legislature clearly and unequivocally intended that this varying quantum of harm may constitute an aggravating factor…[T]he severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.”
Death is Different
Death is different because it does not come in various degrees.
The degree of great bodily harm must still rise above a baseline level before a court may consider the harm as an aggravating factor. We were clearly above that baseline level in this case.
The bone had failed to mend despite extensive treatment and therapy. The victim suffered from continued pain that affected her on a day-to-day basis, and the injury still required further surgery.