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) 200092-U
Order filed October 14, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 9th Judicial Circuit,
) McDonough County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-20-0092
v. ) Circuit No. 18-CF-177
)
MATTHEW T. CUMMINGS, )
) Honorable William E. Poncin,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Presiding Justice O’Brien and Justice McDade concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in considering the aggravating and mitigating
factors when it imposed defendant’s sentence.
¶2 Defendant, Matthew T. Cummings, appeals his conviction and sentence. He contends that
the trial court imposed an excessive sentence when it failed to consider mitigating evidence at
sentencing. We affirm.
¶3 I. BACKGROUND
¶4 On August 2, 2019, the State charged defendant by amended information with aggravated
driving while under the influence (DUI). 625 ILCS 5/11-501(a)(6), (d)(1)(C) (West 2018). The
information alleged that defendant operated a motor vehicle while there were controlled substances
in his system (morphine, codeine, fentanyl, and heroin), and that he caused great bodily harm or
permanent disability to the victim, Troy Shirrell.
¶5 The cause proceeded to a stipulated bench trial. The parties stipulated that the State would
present the following evidence. On August 10, 2010, a concerned citizen approached Macomb
police officer Zach Hill and Officer Troy Shoudel informing them of a traffic accident. Upon
arrival, the officers found a motorcycle lodged underneath a Jeep Wrangler. The officers identified
defendant as the driver of the Jeep and the victim as the driver of the motorcycle. The officers
found the victim laying in the street. Shirrell’s left leg appeared broken at the ankle. The leg
appeared to be attached by only a small flap of flesh between the foot and the leg. Shirrell was
transported to the hospital. He underwent several surgeries, but doctors amputated his left leg
below the knee due to the nature and extent of the injury.
¶6 Based on the crash scene investigation and witnesses accounts, officers determined that at
the time of the accident, defendant drove his vehicle west on East Jackson Street and the victim
drove his motorcycle east on East Jackson Street. Defendant turned left onto Candy Lane without
yielding, striking the victim’s motorcycle in the intersection. Defendant’s failure to yield
proximately caused the accident and the victim’s injury.
¶7 Officer Hill read defendant the traffic crash “Warning to Motorists” at the scene of the
accident. Defendant refused to provide blood and urine samples. Officers obtained a search warrant
for samples of defendant’s blood and urine. An analysis of defendant’s urine sample revealed the
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presence of morphine, codeine, fentanyl, and heroin in defendant’s system. It was not lawful for
the defendant to use the controlled substances found in his urine at the time of the accident.
¶8 At the conclusion of the stipulated bench trial, the trial court found defendant guilty of
aggravated DUI.
¶9 The presentence investigation report (PSI) detailed defendant’s criminal history that
included the following convictions: (1) DUI in 2006, (2) reckless driving in 2007, (3) disorderly
conduct in 2008, (4) forgery in 2009, (5) two separate convictions for unlawful delivery of a
controlled substance (heroin) in 2010, (6) retail theft in 2010, (7) attempted armed robbery (knife)
in 2011, (8) unlawful possession of a controlled substance in 2011, and (9) retail theft and unlawful
possession of drug paraphernalia in 2014. Defendant also received 11 traffic citations. The PSI
detailed defendant’s history of drug abuse and numerous unsuccessful attempts to complete drug
abuse programs. Defendant denied being on drugs at the time of the accident in this case, but he
did admit to using heroin the night before the accident.
¶ 10 At the sentencing hearing, the State called Officer Shoudel to testify. In relevant part,
Shoudel testified that based on his experience, defendant may have been under the influence of
some kind of substance at the time of the accident. Defendant answered simple questions slowly
and continually shuffled his weight from one foot to the other. Shoudel, however, agreed that
defendant may have been shaken in light of the severity of the accident.
¶ 11 Witnesses informed Shoudel that they observed defendant using a cell phone prior to the
accident. Defendant initially consented to a search of his cell phone. The search revealed ingoing
and outgoing messages at the approximate time of the crash. Shortly thereafter, defendant revoked
his consent to examine the phone. Shoudel could not recall if defendant ever inquired into the
victim’s well-being.
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¶ 12 Defendant’s mother also testified. According to her, defendant fought drug addiction for
17 years. He became addicted to prescription pain medicine after an injury in high school. Over
the years, defendant unsuccessfully attempted seven drug rehabilitation programs. He also had
several overdoses and two suicide attempts. She and her husband relied on defendant’s help with
basic household chores.
¶ 13 Defendant made a statement in allocution. He was sorry for what he did and for what his
family has gone through. Defendant was shocked when he learned that fentanyl was in his system
and that he “would never knowingly take Fentanyl.” At the time of the accident, defendant tried
to “detox” himself from his prescribed methadone and ingested what he believed to be “Xanax”
the night before the accident. Defendant later learned that the Xanax he took actually contained
fentanyl, heroin, and other opioids. Defendant denied being impaired at the time of the accident.
He claimed he caused the accident “due to heavy traffic,” the “sun shining in [his] eyes,” and
“answering a cell phone call[.]”
¶ 14 Following the evidence, the State made its argument in aggravation. The State emphasized
defendant’s criminal record and his failure to successfully complete drug rehabilitation. The State
asked the court to impose a maximum 12-year sentence.
¶ 15 The defense described the defendant’s situation as a “classic case of opioid dependency
which started with a prescription in [defendant’s] early [twenties].” Defense counsel argued that
defendant was not impaired at the time of the accident, and that his use of the cell phone caused
the accident. Further, the defense argued that “[defendant]’s actions in this matter were neither
premeditated nor malicious. It did not involve vengeance or passion. There was no intent to harm
anyone or break the law.”
¶ 16 Following the arguments, the court began its sentencing decision by stating:
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“The Court having considered the evidence at the stipulated bench
trial, the presentence investigation, the history, character and
attitude of the defendant, the evidence presented here today and the
arguments of counsel, the defendant’s statement in allocution and
statutory matters in aggravation and mitigation will begin by finding
that none of the statutory factors in mitigation are applicable.”
As to the factors in aggravation, the court noted defendant’s long history of criminal activity and
the need to deter others from committing the same offense. The court found it unlikely that
defendant would comply with the terms or conditions of probation, given that defendant had a
history of prior probations and supervisions that were revoked or terminated unsatisfactorily.
Defendant’s history showed an endless addiction to drugs, despite having a family who cared about
him emotionally and invested significant resources in his care. The court noted that the PSI
indicated defendant failed to succeed in approximately 16 drug treatment programs. The court
ultimately sentenced defendant to 11 years’ imprisonment.
¶ 17 Defendant filed a motion to reconsider his sentence. He argued that the court imposed an
excessive sentence where defendant “did not contemplate that his conduct, the use of his cell phone
while driving, would cause physical harm to anyone.”
¶ 18 At the hearing on the motion, the defense again argued that defendant did not drive while
impaired. Instead, defendant caused the accident by his distracted use of his cell phone. Defendant
did not intend to cause any harm to the victim.
¶ 19 The State responded by arguing that defendant was found guilty of aggravated DUI, not
aggravated use of a cell phone. Thus, the State believed defendant’s intent was not relevant. The
State also argued that the factors in aggravation supported the sentence imposed.
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¶ 20 The court responded,
“In one hand the testimony of Officer Shoudel seems to
suggest that the Defendant had some sign of impairment ***. That’s
not as clear. But the Court can say definitively that there were no
signs of impairment.”
However, the court again emphasized defendant’s criminal history, drug addiction, and the injuries
suffered by the victim in this case. The court did amend the sentencing order to recommend
defendant’s placement in a substance abuse program, but otherwise denied defendant’s motion to
reconsider.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant contends that his sentence is excessive. He claims the trial court
abused its discretion by failing to consider a mitigating factor during sentencing. The State
contends that defendant forfeited this sentencing issue by failing to make an objection during the
court’s pronouncement of the sentence. To preserve an issue for appeal, a defendant must make a
contemporaneous objection at trial and raise the issue in his posttrial motion. See People v. Harvey,
2018 IL 122325, ¶ 15. We find a contemporaneous objection is not required in this case.
¶ 23 In People v. Saldivar, 113 Ill. 2d 256 (1986), defendant was found guilty of voluntary
manslaughter. When imposing the sentence, the court considered defendant’s conduct caused
death and “terrible harm that was caused to the victim” as an aggravating factor. Id. at 264.
Defendant did not object. On appeal, defendant argued the trial court improperly considered an
element of the offense as an aggravating factor at sentencing. The State argued that defendant
forfeited the issue by failing to make a contemporaneous objection or raise the issue in a posttrial
motion. The supreme court rejected the argument. The supreme court focused on defense counsel’s
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argument at the sentencing hearing, in which counsel preemptively argued that the victim’s death
is inherent in the offense. The court found the circumstances were not,
“a proper case for the application of the waiver rule. *** To
preserve any error of the court made at that time, it was not
necessary for counsel to interrupt the judge and point out that he was
considering wrong factors in aggravation, especially in light of the
argument that had preceded the ruling.” Id. at 266.
¶ 24 In this case, defense counsel specifically argued “[defendant]’s actions in this matter were
neither premeditated nor malicious. It did not involve vengeance or passion. There was no intent
to harm anyone or break the law.” This argument alerted the court to consider this evidence in
mitigation. An objection during the pronouncement of the sentence would accomplish nothing
under these circumstances. Defendant’s motion to reconsider his sentence also raised the argument
that defendant did not intend to cause harm to the victim. The court held a hearing to specifically
address the issue. The purpose of preserving errors is to apprise the trial court of the specific claim
of error raised on appeal and to provide the court with an opportunity to address it. That occurred
here. Consequently, like Saldivar, defendant in this case preserved the issue for review.
¶ 25 Turning to the merits of defendant’s sentencing argument. Defendant claims the trial court
erred in failing to consider one factor in mitigation: that he did not contemplate his criminal
conduct would cause or threaten serious physical harm to another. See 730 ILCS 5/5-5-3.1(a)(2)
(West 2018); People v. Steppan, 105 Ill. 2d 310, 323 (1985). This court will not disturb a sentence
absent an abuse of discretion. People v. Illgen, 145 Ill. 2d 353, 379 (1991).
¶ 26 Defendant notes that there is no evidence of his impairment at the time of the accident. He
claims he did not intend to cause the injury. Instead, he describes the injury to the victim as an
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accident caused by his distracted driving. Where a defendant presents evidence in mitigation, it is
presumed that the trial court considered said evidence. People v. Pippen, 324 Ill. App. 3d 649, 653
(2001). This presumption is only overcome by some statement in the record, other than the
sentence imposed, which indicates that the court did not do so. People v. White, 237 Ill. App. 3d
967, 970 (1992). In making his argument, defendant calls our attention to the sentencing court’s
statement that “none of the statutory factors in mitigation are applicable.” In defendant’s view, by
finding none of the statutory factors in mitigation “applicable,” the court refused to even consider
the above evidence.
¶ 27 “[S]tating that no statutory factors in mitigation apply is different than stating that the trial
court did not consider a mitigating factor.” (Emphases in original.) People v. Newbill, 374 Ill. App.
3d 847, 854 (2007). In other words, there is a difference between considering mitigating evidence
and the weight the court assigns to that evidence. Defendant presented the above mitigating
evidence during the sentencing hearing. The court stated that it considered the “statutory matters
in aggravation and mitigation” when it pronounced the sentence. When denying defendant’s
motion to reconsider sentence, the court found no evidence of defendant’s impairment at the time
of the accident. Contrary to defendant’s argument, the court did not ignore mitigating evidence.
By finding the mitigating factors do not apply, the court simply afforded no weight to that
evidence. The court is not required to impose a sentence at the low end of the sentencing range
merely because there is some evidence in mitigation. See Pippen, 324 Ill. App. 3d at 652.
¶ 28 Moreover, the court had no obligation to accept defendant’s description of his conduct as
“clearly accidental.” Defendant claimed his cell phone distracted him at the time he crashed into
the victim. It is common knowledge that distracted driving is dangerous. The danger is amplified—
like here—under heavy traffic conditions. The trial court could freely infer that defendant
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contemplated that his distracted driving would cause or threaten serious physical harm to another.
The court did not abuse its discretion when it assigned no weight to this mitigating factor.
Accordingly, we find the trial court did not abuse its discretion when it sentenced defendant to 11
years’ imprisonment.
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court of McDonough
County.
¶ 31 Affirmed.
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