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. *2 ¶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
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.
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
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.
***
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
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
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
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.