People v. Graening

2022 IL App (3d) 210052-U

• Court: Appellate Court of Illinois
• Decided: February 17, 2022
• Docket: 3-21-0052
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 210052-U

Order filed February 17, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) La Salle County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0052 v. ) Circuit No. 17-CF-6 ) SCOTT V. GRAENING, ) Honorable ) Cynthia M. Raccuglia, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HAUPTMAN delivered the judgment of the court. Justices Holdridge and Schmidt concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court did not err by sentencing defendant to 12 years’ imprisonment where the court adequately considered all factors in mitigation.

¶2 Defendant, Scott V. Graening, appeals his concurrent sentences of 12 years’

imprisonment for failure to report an accident and aggravated driving under the influence of

alcohol (DUI). Defendant argues the La Salle County circuit court abused its discretion by not

adequately considering mitigating factors. We affirm. ¶3 I. BACKGROUND

¶4 Defendant pled guilty to failure to report an accident, a Class 1 felony (625 ILCS 5/11-

401(b) (West 2016)), and aggravated DUI (625 ILCS 5/11-501(d)(2)(G) (West 2016)), a Class 2

felony, that by statute carried a special sentencing range of 3 to 14 years’ imprisonment due to

the accident causing a death. In exchange for his plea, the State dismissed several other charges.

Defendant’s plea included no agreement as to the sentence.

¶5 The factual basis for the plea established that on October 16, 2016, officers responded to

a call that a motorcycle had gone off the roadway, into a field, and through a ditch. Witnesses

saw defendant pulling the motorcycle upright and leaving the scene. Defendant was later found

with the motorcycle and transported to the hospital, where a blood test revealed a blood alcohol

content over the legal limit. The next day, law enforcement received multiple reports that a

passenger may have been on the motorcycle at the time of the accident. Officers returned to the

scene and found the body of Kerstin Bobst.

¶6 At sentencing, the State argued that defendant should receive 14 years’ imprisonment.

The State’s argument was based on five aggravating factors: (1) the victim was over 60; (2) the

sentence would deter others; (3) defendant’s criminal history outlined in the presentence

investigation report; (4) prior court-ordered treatment plans had not stopped defendant from

drinking; and (5) the serious harm caused by defendant’s actions. The State pointed to

defendant’s history of traffic offenses and DUI charges to support its argument.

¶7 Defendant countered that he did not know that someone was on the motorcycle with him,

that he had a support system to care for him, and that he was a veteran. Defendant also submitted

a written statement in allocution to the court, which he read at the hearing. In his statement

2 defendant expressed remorse for what had happened and told the court that he stopped drinking

as a result of the accident. Defendant asked for the minimum sentence.

¶8 Before announcing its sentencing decision, the court stated there were certain factors it

must take into consideration at every sentencing hearing. Specifically, the court noted:

“But there’s some things I do know. And when the justice system in the United

States makes a decision, a hard decision, I am obligated to rely on certain factors

in the statute called aggravation and mitigation, and I have to rely on those factors

to somehow give me the insight into what a proper sentence would be.”

¶9 The court stated that the strongest factors in mitigation were that defendant pled guilty

and he claimed to have remorse, though the court did not believe defendant expressed enough

remorse, stating,

“I can tell remorse. I expected you to have more remorse, frankly. Everything else

I said I was prepared to say, but I really expected you to have more remorse. And

what’s interesting is in your statement you again are concentrating on I, I, I. I

need to help my parents. I need to—I have this problem. This is what I did. This is

what I said. When really, the focus of your conduct should be that you understand

how tragic this was, that you have done everything you can to not let it happen

again, and that is missing, too.

***

*** You said you were sorry, so I’ll consider that. But I don’t give a lot of

weight to your remorse because I just didn’t see it in your statement. What I saw

in your statement is you trying to explain what you did, only about you and why

you did not do wrong, why you should be—why I should give you leniency.

3 That’s not remorse. That’s just basic not wanting to be punished, and there’s a

difference.”

¶ 10 Additionally, the court noted that while defendant claimed to have remained sober during

the pendency of his case, he did not receive professional treatment, nor did he provide the court

with a plan for continued sobriety after sentencing. The court ultimately agreed with the factors

in aggravation argued by the State and sentenced defendant to 12 years’ imprisonment for each

count, to be served concurrently.

¶ 11 Defendant filed a motion to vacate his guilty plea on May 24, 2017. The State responded

with a motion to strike, arguing that the motion did not contain any new facts or law that would

give the court grounds to vacate defendant’s plea. Defendant appeared in court on June 15, 2017,

and withdrew his motion.

¶ 12 On June 12, 2020, defendant filed a petition for postconviction relief that argued he was

entitled to a motion to reconsider his sentence. In the petition, defendant alleged that the circuit

court advised him that if he was unhappy with his sentence his only option would be to file a

motion to vacate his plea. The petition also alleged that counsel did not adequately prepare for

the sentencing hearing and then improperly filed a motion to vacate instead of a motion to

reconsider sentence. Defendant argued that his due process rights were violated by the

misinformation given by the court and by his counsel failing to file the right postsentence

motion.

¶ 13 The court granted postconviction relief, stating that defendant was entitled to have his

motion to reconsider sentence heard by the court. The court held a hearing on the motion to

reconsider on January 8, 2021, where defendant presented testimony from family members that

4 after the accident and up until his prison sentence, he remained sober. Defendant’s family also

testified to his attempts to find treatment programs that were unsuccessful.

¶ 14 The court, referring to the transcripts from the original sentencing hearing, indicated that

it had taken everything into consideration at that time, and that nothing had changed to alter its

ruling. Regarding the prior ruling, the court stated,

“Here’s what the evidence tells me. That the justice system—you know, we

don’t—we do a presentence investigation for a reason. A judge doesn’t sentence

in a vacuum. I made it very clear to [defendant] here that he has been lucky since

1984. Fortunate so much so that he was able to drive while revoked again the

night of this incident without having a care in the world or concern for

consequences. Here’s what I said then.

That the justice system since about 1984 *** while you were violating the

law and drinking and getting into trouble, community service, the evidence in this

case suggests that you have been in denial. The treatment suggested for all these

traffic offenses, the evidence shows that he in no way made any effort to deal with

an alcohol problem which caused him to be in the position he was the day this

woman died.

The evidence in this case suggests—and you have to remember his

statement is of record to me. He didn’t testify. He gave me a statement. It’s of

record to me. And he still was in denial of having any alcohol problem. He said to

me he still doesn’t know how the accident happened. I said in my sentencing. The

evidence suggested you were drunk, and you have had no serious consequences

your entire life for your past drunken behavior.

5 ***

And I said, here—yes, you cried, he did, he cried, and I said by his

demeanor, which I have a right to observe, and I did, and his statements are in this

record. I said, I think why you’re so sad is that—is that you are sad that you may

have to go to prison and you—he already said with I’s to all the reasons he can’t

go to prison.

And what I said here. But you did not even make an effort. *** In his

statement I tell him—I’m talking to him—I say, But you did not even make an

effort to give me a plan. So he couldn’t get in. I know all of this. I knew all of

this. He presented he didn’t have any money. He presented that his family didn’t

have any money. He—I gave him the benefit of the doubt by saying this.

But you didn’t even make an effort to give me a plan as to why there

would be no reason for me to imprison you and think you were in danger of the

public by telling me you will never drink again, never.

Well, a trial judge has many factors in aggravation, many factors in

mitigation, and the whole reason I’m reading what I said is I keep saying in

summary, in perspective. I’m doing my job by weighing the factors. One isn’t

more important than the other.”

¶ 15 The court denied defendant’s motion to reconsider. Defendant appeals.

¶ 16 II. ANALYSIS

¶ 17 Defendant argues his sentence is excessive because the circuit court failed to sufficiently

consider the applicable mitigating factors. The State submits the court adequately considered and

6 properly balanced all the factors in mitigation and aggravation before announcing its sentencing

decision.

¶ 18 A circuit court’s sentencing decision is entitled to great deference because it is in a better

position to consider the aggravating and mitigating factors. People v. Alexander, 239 Ill. 2d 205,

212 (2010). A reviewing court will not substitute its judgment for the circuit court merely

because it would have weighed the factors differently. People v. Stacey, 193 Ill. 2d 203, 209

(2000). It is not our duty on appeal to reweigh the factors involved in the circuit court’s

sentencing decision. People v. Coleman, 166 Ill. 2d 247, 261-62 (1995). The reviewing court will

not alter a defendant’s sentence without a finding of abuse of discretion by the circuit court.

Stacey, 193 Ill. 2d at 209; People v. Jackson, 375 Ill. App. 3d 796, 801 (2007).

¶ 19 From our review of the record, the circuit court did not abuse its discretion in sentencing

defendant to 12 years’ imprisonment. As an initial matter, defendant’s sentence falls well within

the 3- to 14-year sentencing range that accompanies an aggravated DUI conviction and the 4- to

15-year range for a Class 1 felony. See 625 ILCS 5/11-501(d)(2)(G) (West 2016); 730 ILCS 5/5-

4.5-30(a) (West 2016). Moreover, because the sentence is within the applicable range, it is

presumptively valid, and defendant bears the burden to rebut this presumption. See People v.

Busse, 2016 IL App (1st) 142941, ¶ 27.

¶ 20 We reject defendant’s argument that the court failed to seriously consider defendant’s

lack of criminal history, remorse, sobriety, attempts to obtain treatment, and familial hardships.

“When mitigating factors are presented to the court, there is a presumption that the trial court

considered them, absent some contrary evidence.” People v. Payne, 294 Ill. App. 3d 254, 260

(1998). During sentencing, counsel argued that defendant should receive a low sentence, largely

due to evidence of defendant’s remorse and continued sobriety since the accident. The court

7 indicated that it considered the arguments of both parties and found the State’s arguments more

persuasive. Additionally, the court specifically stated, in both the original sentencing hearing and

the motion to reconsider, that it considered all statutorily required factors when making its

sentencing decision. Thus, we presume that the court considered this mitigating evidence.

¶ 21 Defendant argues that his sentence is excessive given his lack of significant criminal

history. While lack of a significant criminal history is an important mitigating factor, it is not the

sole factor the court must consider. People v. Oravis, 81 Ill. App. 3d 717, 719 (1980); 730 ILCS

5/5-5-3.1(a)(7) (West 2016). It is clear from the record that the court considered this factor when

determining defendant’s sentence. It is also clear that the court considered and determined that it

was significant that defendant in fact had a lengthy history of traffic offenses, including prior

DUI and driving on revoked license charges, that did little to change defendant’s sobriety before

the accident. The court acknowledged that defendant never had a felony conviction but

determined that carried little weight compared to the litany of traffic charges he had received.

¶ 22 Defendant also argues the court ignored that he was remorseful. The record indicates,

however, that the court did consider this factor and chose not to give it much weight. The court

acknowledged defendant said he was remorseful but did not see it in his statements to the court.

The circuit court is in a better position to consider such factors as defendant’s credibility,

demeanor, and character, and we must therefore give the court’s opinions on defendant’s

statements of remorse great deference. See People v. Colon, 2018 IL App (1st) 160120, ¶ 66.

¶ 23 Finally, the court considered defendant’s rehabilitative potential when it discussed his

contention that he had been sober since the accident. The court determined that the defendant’s

claim of sobriety was not credible, and that it should be given little weight given the fact that

defendant never entered a treatment program and failed to provide the court with a plan for his

8 continued sobriety. Therefore, we find that the court adequately considered the relevant factors

in mitigation, and we decline defendant’s request to, in essence, “reweigh the factors involved in

[the court’s] sentencing decision.” Alexander, 239 Ill. 2d at 214.

¶ 24 In conclusion, defendant’s sentence is neither greatly at variance with the spirit and

purpose of the law, nor is it manifestly disproportionate to the nature of the offense. See id. at

212. Accordingly, the court did not abuse its discretion by sentencing defendant to 12 years’

imprisonment.

¶ 25 III. CONCLUSION

¶ 26 The judgment of the circuit court of La Salle County is affirmed.

¶ 27 Affirmed.