Illinois Official Reports 

Appellate Court

People v. Stutzman, 2015 IL App (4th) 130889

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOS, Plaintiff-Appellee, v. 

DARYLL G. STUTZMAN, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-13-0889

Filed August 4, 2015

Decision Under 

Review

Appeal from the Circuit Court of Livingston County, No. 12-CF-17; 

the Hon. Jennifer H. Bauknecht, Judge, presiding.

Judgment Affirmed in part and vacated in part; cause remanded with directions.

Counsel on

Appeal

Michael J. Pelletier, Jacqueline L. Bullard, and Kelly M. Weston, all 

of State Appellate Defender’s Office, of Springfield, for appellant.

Seth Uphoff, State’s Attorney, of Pontiac (Patrick Delfino, David J. 

Robinson, and Aimee Sipes Johnson, all of State’s Attorneys 

Appellate Prosecutor’s Office, of counsel), for the People.
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Panel JUSTICE STEIGMANN delivered the judgment of the court, with 

opinion.

Justices Holder White and Appleton concurred in the judgment and 

opinion.

 OPINION 

¶ 1 In June 2013, defendant, Daryll G. Stutzman, pleaded guilty pursuant to a negotiated guilty 

plea agreement to (1) reckless homicide (720 ILCS 5/9-3(a) (West 2010)) and (2) aggravated 

driving under the influence (aggravated DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)). In 

August 2013, the trial court imposed concurrent sentences of three years for each offense. 

¶ 2 Defendant appeals, arguing that (1) his convictions violated the one-act, one-crime 

doctrine; and (2) the trial court abused its discretion by failing to find extraordinary 

circumstances existed to impose a sentence of probation. Because we agree with defendant’s 

first argument, we vacate his conviction for reckless homicide and remand with directions. 

¶ 3 I. BACKGROUND 

¶ 4 A. The State’s Charges

¶ 5 In January 2012, the State charged defendant with (1) reckless homicide (count I), (2) 

aggravated DUI (count II), and (3) two counts of DUI (625 ILCS 5/11-501(a)(1) (West 2010)) 

(counts III and IV). 

¶ 6 In count I, the State alleged the following: 

“[D]efendant, on or about *** September 11, 2011, *** while acting in a reckless 

manner, performed acts likely to cause death of, or great bodily harm to, some 

individual in that he operated *** a yellow, 2000 Jeep Wrangler *** at a time when his 

blood-alcohol content was above .08, with an unrestrained, intoxicated front seat 

passenger in a vehicle with detached doors, and turned *** at a speed which was 

greater than was reasonable and proper with regard to existing conditions, causing Lisa 

Loyer to fall from the vehicle, thereby causing [her] death ***.”

¶ 7 In count II, the State alleged the following: 

“[D]efendant on or about *** September 11, 2011, *** drove a motor vehicle, a yellow 

2000 Jeep Wrangler, *** while the alcohol concentration in such person’s blood or 

breath was .08 or more *** was involved in a motor vehicle accident that resulted in the 

death of Lisa Loyer ***.”

¶ 8 B. Defendant’s Guilty Plea Hearing 

¶ 9 At a June 2013 hearing, defendant pleaded guilty to counts I and II. In exchange for 

defendant’s guilty plea, the State dismissed the remaining counts but did not make any 

sentencing recommendations. After appropriately admonishing defendant in accordance with 

Illinois Supreme Court Rule 402 (eff. July 1, 2012), the trial court considered the State’s 

factual basis and the parties’ stipulation that Loyer was unrestrained at the time of the accident. 
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Thereafter, the court (1) accepted defendant’s guilty plea and (2) ordered the probation office 

to prepare a presentence investigation report (PSI). 

¶ 10 C. Defendant’s Sentencing Hearing

¶ 11 1. The Evidence Presented

¶ 12 At defendant’s August 2013 sentencing hearing, the trial court considered (1) a drug and 

alcohol evaluation report provided by the Illinois Department of Human Services; and (2) 

defendant’s PSI, which provided a section entitled, “Circumstances of Offense,” that was 

substantially similar to the factual basis the State provided at defendant’s June 2013 guilty plea 

hearing. The evidence presented at defendant’s sentencing hearing showed the following.

¶ 13 On the evening of September 11, 2011, defendant, a corrections officer at Dwight 

Correctional Center, was at Banger’s Bar, a business that he co-owned. One of defendant’s 

patrons that night was Loyer, a fellow corrections officer. Sometime prior to 11 p.m., 

defendant observed that Loyer’s alcohol consumption had rendered her unable to drive. 

Defendant asked Loyer for her car keys, intending to drive her home. After Loyer complied, 

defendant assisted Loyer to her Jeep–which did not have a driver or passenger door. While 

driving Loyer home, defendant attempted a left turn. As he did so, Loyer fell out of the Jeep, 

struck her head on the roadway, and later died from her injuries. 

¶ 14 Responding Illinois State trooper Matthew Frizzell noticed a “moderate” odor of alcohol 

coming from defendant’s breath. Defendant admitted that he had been drinking “every now 

and then over the course of [three to four] hours” while bartending, but he refused to submit to 

a Breathalyzer test or have his blood drawn. Defendant also claimed that the half-full bottle of 

“Mike’s Hard Lemonade” another trooper found upright on the driver’s side floorboard of the 

Jeep must have been Loyer’s. Because of the serious nature of Loyer’s injuries, Frizzell had 

defendant’s blood drawn involuntarily. Testing later revealed that defendant’s blood-alcohol 

content (BAC) was 0.124. Responding to a tip provided by a retired police officer, police later 

viewed the surveillance tapes of a local convenience store, which showed that just prior to the 

accident, defendant bought a bottle of Mike’s Hard Lemonade and returned to Loyer’s Jeep.

¶ 15 Five character witnesses called on defendant’s behalf–defendant’s supervisor at Dwight 

Correctional Center, a correctional center coworker, a family friend, Loyer’s twin sister, and 

Loyer’s mother–testified generally about defendant’s exceptional work ethic, willingness to 

assist others, and overwhelming remorse over Loyer’s death. Loyer’s twin sister and mother 

added that they held no animosity toward defendant because Loyer’s death was a tragic 

accident. 

¶ 16 2. Closing Arguments

¶ 17 The parties’ closing arguments concentrated on section 11-501(d)(2)(G) of the Illinois 

Vehicle Code (625 ILCS 5/11-501(d)(2)(G) (West 2010)), which allows the trial court to 

impose a term of probation for an aggravated DUI conviction if “extraordinary circumstances 

exist.” The State argued that extraordinary circumstances did not exist and asked the court to 

impose a six-year prison sentence. Defendant requested that the court impose a probationary 

term, emphasizing (1) his exemplary performance as a corrections officer and (2) the level of 

empathy and understanding exhibited by Loyer’s family as factors that constituted such 

extraordinary circumstances. 
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¶ 18 3. The Trial Court’s Judgment

¶ 19 After a short recess, the trial court found as follows: 

“[The court] certainly recognize[s] that [defendant is] a great neighbor, a very strong, 

hard worker. You’re a good person. A bad thing happened. But in [the court’s] mind 

when [the court is] thinking of extraordinary mitigating circumstances, *** there was 

another option that night; and the other option was take the keys from [Loyer] and call 

both of you a ride home. 

 * * * 

And [the court] understand[s] the victim’s position. [The court] understand[s] the 

family’s position. [The court is] glad that [defendant has] that support. But when [the 

court] consider[s] protection of the public and the message that it sends to the public, 

*** unfortunately we have a lot of good people in this community that makes mistakes. 

It happens. They make mistakes. 

 *** Does that rise to the level of extraordinary mitigating circumstances? [The 

court does not] think so. [The court does not] know what would. But in [the court’s] 

mind, this does not. Had the legislature intended a situation like this to be probation 

eligible[, the court] think[s] there would be a way to do that; but here [the court does] 

not believe that the circumstances rise to the level of *** extraordinary, mitigating 

circumstances. 

*** Even though the incident is different than a lot of DUI’s, it’s the same as every 

DUI. [Defendant] made a decision to drive when [he] shouldn’t have; and 

unfortunately nobody can take it back; and [the court] know[s] that you want to take it 

back; but you can’t; and [the court’s] job is now to punish you for that; and [the court 

has] taken into consideration everything that [the court has] heard; but [the court does] 

think that under this circumstance these are not extraordinary mitigating 

circumstances.”

Thereafter, the court imposed concurrent sentences of three years on both counts. 

¶ 20 This appeal followed. 

¶ 21 II. ANALYSIS 

¶ 22 A. Defendant’s Convictions

¶ 23 Defendant argues that his convictions violated the one-act, one-crime doctrine. 

Specifically, defendant contends that this court should vacate his reckless homicide conviction 

because it was based on the same physical act as his aggravated DUI conviction. We agree. 

¶ 24 1. The One-Act, One-Crime Doctrine

¶ 25 In People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977), the supreme court 

articulated the one-act, one-crime doctrine, as follows: 

“Prejudice results to the defendant only in those instances where more than one 

offense is carved from the same physical act. Prejudice, with regard to multiple acts, 

exists only when the defendant is convicted of more than one offense, some of which 

are, by definition, lesser included offenses. Multiple convictions and concurrent 
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sentences should be permitted in all other cases where a defendant has committed 

several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is 

intended to mean any overt or outward manifestation which will support a different 

offense. We hold, therefore, that when more than one offense arises from a series of 

incidental or closely related acts and the offenses are not, by definition, lesser included 

offenses, convictions with concurrent sentences can be entered.”

Under King, “[m]ultiple convictions are improper if they are based on precisely the same 

physical act.” People v. Rodriguez, 169 Ill. 2d 183, 186, 661 N.E.2d 305, 306 (1996). Whether 

multiple convictions violate the one-act, one-crime doctrine presents a question of law that we 

review de novo. People v. Shines, 2015 IL App (1st) 121070, ¶ 44. 

¶ 26 2. The Plain-Error Doctrine

¶ 27 Defendant acknowledges the forfeiture of his one-act, one-crime claim by failing to 

properly preserve it for our review, but he nonetheless urges this court to excuse his forfeiture 

and consider his claim under the plain-error doctrine. 

¶ 28 “To preserve a claim for review, a defendant must both object at trial and include the 

alleged error in a written posttrial motion.” People v. Thompson, 238 Ill. 2d 598, 611, 939 

N.E.2d 403, 412 (2010). Failure to do so results in the forfeiture of that claim on appeal. Id. at 

612, 939 N.E.2d at 412. A defendant can avoid the harsh consequences of forfeiture under the 

plain-error doctrine. Id. at 613, 939 N.E.2d at 413. 

¶ 29 The plain-error doctrine permits a reviewing court to reach a forfeited error affecting 

substantial rights in the following two circumstances: “(1) a clear or obvious error occurred 

and the evidence is so closely balanced that the error alone threatened to tip the scales of justice 

against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error 

occurred and that error is so serious that it affected the fairness of the defendant’s trial and 

challenged the integrity of the judicial process, regardless of the closeness of the evidence.” 

People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007). 

¶ 30 As a matter of convention, reviewing courts typically undertake plain-error analysis by first 

determining whether error occurred at all. People v. Sargent, 239 Ill. 2d 166, 189, 940 N.E.2d 

1045, 1059 (2010). See also People v. Bowens, 407 Ill. App. 3d 1094, 1108, 943 N.E.2d 1249, 

1264 (2011) (where this court held that “the usual first step in plain-error analysis is to 

determine whether any error occurred”). “If error is found, the court then proceeds to consider 

whether either of the [aforementioned] two prongs of the plain-error doctrine have been 

satisfied.” Sargent, 239 Ill. 2d at 189-90, 940 N.E.2d at 1059. In this case, “ ‘an alleged 

one-act, one-crime violation and the potential for a surplus conviction and sentence affects the 

integrity of the judicial process, thus satisfying the second prong of the plain[-]error rule.’ ” 

People v. Artis, 232 Ill. 2d 156, 167-68, 902 N.E.2d 677, 684 (2009) (quoting People v. 

Harvey, 211 Ill. 2d 368, 389, 813 N.E.2d 181, 194 (2004)). Therefore, we will consider 

defendant’s claim under the plain-error doctrine. 

¶ 31 3. Defendant’s One-Act, One-Crime Claim

¶ 32 Defendant asserts that this court should vacate his reckless homicide conviction because it 

was based on the same physical act as his aggravated DUI conviction–namely, that at the 

moment of Loyer’s death he drove while intoxicated.
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¶ 33 In support of that assertion, defendant relies on People v. Latto, 304 Ill. App. 3d 791, 710 

N.E.2d 72 (1999). In Latto, the defendant was driving southbound when his car crossed the 

center lane of traffic and struck a car travelling northbound. Id. at 794, 710 N.E.2d at 75. The 

impact seriously injured the driver and killed the passenger of the northbound car. Id. at 793, 

710 N.E.2d at 75. Shortly after the accident, the responding officer noticed that the defendant’s 

behavior indicated impairment. Id. at 795, 710 N.E.2d at 76. Subsequent testing revealed that 

the defendant had a 0.074 BAC and traces of the narcotic pain reliever Vicodin in his system. 

Id. Following a bench trial, the trial court found defendant guilty of two counts of (1) reckless 

homicide and (2) aggravated DUI. Id. at 794, 710 N.E.2d at 75. The court then sentenced 

defendant to a single five-year term for reckless homicide and three concurrent nine-year terms 

of imprisonment on his remaining convictions. Id. 

¶ 34 On appeal, the appellate court concluded that the trial court’s sentence did not conform to 

the one-act, one-crime doctrine announced in King. Specifically, the appellate court stated, as 

follows: 

“Here, it is apparent that count II [(reckless homicide)], alleging defendant drove 

his vehicle ‘while under the influence of alcohol to a degree which rendered him 

incapable of safely driving’ causing the death of [the passenger], and count VII 

[(aggravated DUI)], alleging defendant drove his vehicle ‘while under the influence of 

alcohol, and he was involved in a motor vehicle accident that resulted in great bodily 

harm to [the passenger],’ were based on the same acts: defendant’s operation of his 

vehicle which resulted in [the passenger’s] death. Accordingly, only one conviction 

and sentence should stand.” Id. at 806-07, 710 N.E.2d at 83-84. 

Thereafter, the court vacated the defendant’s conviction and sentence on count VII (aggravated 

DUI), finding that it was the less serious offense. See Artis, 232 Ill. 2d at 170, 902 N.E.2d at 

686 (“[U]nder the one-act, one-crime doctrine, sentence should be imposed on the more 

serious offense and the less serious offense should be vacated.”).

¶ 35 The State attempts to distinguish Latto by claiming that defendant misstates the trial 

court’s ruling in that case. Specifically, the State posits that the Latto court dismissed the 

defendant’s aggravated DUI conviction as a lesser included offense of his reckless homicide 

conviction. We do not agree with the State’s characterization.

¶ 36 In Latto, the appellate court’s ruling was clearly based on what it considered a violation of 

the one-act, one-crime doctrine. Latto, 304 Ill. App. 3d at 806-07, 710 N.E.2d at 83-84. After 

making that determination, the Latto court stated, alternatively, that “[e]ven were we to 

determine that the convictions for counts II and VII were based upon multiple acts, [the] 

defendant’s conviction for aggravated DUI *** must be vacated as a lesser-included offence of 

reckless homicide.” Id. at 807, 710 N.E.2d at 84. 

¶ 37 As already noted, under King, the definition of an “act” is “any overt or outward 

manifestation which will support a different offense.” King, 66 Ill. 2d at 566, 363 N.E.2d at 

844-45. The State responds that defendant’s convictions were not based on the same physical 

act, but instead, were based on two separate acts. In this regard, the State contends that “the 

aggravated [DUI] conviction was based upon defendant’s act of driving while intoxicated, 

while the reckless homicide conviction was based on his intoxication and the additional act of 

defendant ‘turn[ing] *** at a speed which was greater than was reasonable and proper with 

regard to existing conditions.’ ” Simply stated, the State posits that the act of driving a car 
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while intoxicated is a separate and distinct act from turning a car at an excessive speed while 

intoxicated. We are not persuaded. 

¶ 38 In this case, which we find analogous to Latto, we begin our analysis by noting that the 

offenses of aggravated DUI and reckless homicide the State charged against defendant 

pertained to Loyer’s death on the night of September 11, 2011. Because causing the death of 

another was an indispensable element of defendant’s convictions for aggravated DUI and 

reckless homicide, both offenses were completed at the exact same moment in time–namely, 

when Loyer died. 

¶ 39 Narrowing our focus to the precise moment preceding that death, the only “overt or 

outward manifestation” that occurred was defendant’s indefensible act of driving Loyer’s 

yellow 2000 Jeep Wrangler recklessly and while intoxicated. It cannot be said that defendant 

committed two separate acts to cause Loyer’s death. That sole physical act–that is, driving in 

such a manner that would cause death–constituted the basis for the State’s charges and 

defendant’s resulting convictions for aggravated DUI and reckless homicide, which we agree 

violated the clear intent of the one-act, one-crime doctrine. Accordingly, we vacate 

defendant’s conviction and sentence for reckless homicide, which is the less serious offense, 

and remand with directions that the trial court correct defendant’s sentencing order.

¶ 40 In so concluding, we clarify the following misperception defendant apparently has 

regarding a reviewing court’s ability to reduce a sentence imposed by a trial court. Citing 

Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967), defendant argues in the alternative 

that “[i]f this court should disagree with [defendant’s one-act, one-crime] argument, then his 

three year sentence for count I should also be reduced to probation” due to his lack of criminal 

history and the extraordinary circumstances surrounding Loyer’s death. However, “this court 

has no authority under *** Rule 615(b) [citation] to reduce a sentence of imprisonment to a 

sentence of probation.” People v. Bruer, 335 Ill. App. 3d 422, 428, 780 N.E.2d 1128, 1132 

(2002) (citing People v. Bolyard, 61 Ill. 2d 583, 588, 338 N.E.2d 168, 170 (1975) (“Rule 615 

does not grant a reviewing court the authority to reduce a sentence of imprisonment to a 

sentence of probation.”)).

¶ 41 B. Defendant’s Sentence 

¶ 42 Defendant argues that the trial court abused its discretion by failing to find extraordinary 

circumstances existed to impose a sentence of probation. We disagree. 

¶ 43 A conviction for aggravated DUI is a Class 2 felony for which a trial court can impose a 

prison sentence of not less than 3 years but not more than 14 years, “unless the court 

determines that extraordinary circumstances exist and require probation.” 625 ILCS 

5/11-501(d)(2)(G) (West 2010). “The plain language of the statute creates the presumption that 

a convicted defendant shall serve a term of imprisonment.” People v. Hambrick, 2012 IL App 

(3d) 110113, ¶ 21, 973 N.E.2d 1060. 

¶ 44 “A trial court is given great deference when making sentencing decisions, and if a sentence 

falls within the statutory guidelines, it will not be disturbed on review unless the court abused 

its discretion and the sentence is manifestly disproportionate to the nature of the case.” People 

v. Grace, 365 Ill. App. 3d 508, 512, 849 N.E.2d 1090, 1093-94 (2006). Absent an abuse of 

discretion, a trial court’s sentence will not be disturbed on appeal merely because this court 

might have weighed the mitigating and aggravating factors differently. Id. at 512, 849 N.E.2d 

at 1094. 
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¶ 45 Defendant directs our attention to the (1) “circumstances surrounding” Loyer’s death and 

(2) his character as a “hard-working member of society” as proof that extraordinary 

circumstances existed in this case to warrant a sentence of probation. However, the trial court 

properly considered those factors during defendant’s August 2013 sentencing hearing, noting 

that those factors did not constitute extraordinary circumstances. 

¶ 46 In this case, the trial court sentenced defendant to a three-year term of imprisonment for 

aggravated DUI based, in part, on its assessment that Loyer’s death was entirely preventable in 

that defendant could have called for a cab instead of making a conscious decision to drive 

Loyer home while he was intoxicated. Despite defendant’s claim to the contrary, we agree with 

the court’s keen assessment that the circumstances surrounding Loyer’s death began as most 

DUI cases begin–that is, with a person’s knowing decision to drive drunk. In this regard, we 

reaffirm the following long-held stance of this court: 

“Illinois law does not prohibit drinking and driving; it prohibits drinking and 

driving drunk. There is a big difference between these two, and Illinois drivers are 

expected to understand that difference and conduct themselves accordingly. Thus, we 

agree with the trial court and the legislature that those who drive drunk must be on 

notice that, absent extraordinary circumstances, the penalty for depriving a person of 

her life as a result of drunk driving will be imprisonment. 

 In so concluding, we acknowledge that defendant, in the aftermath of this terrible 

case, expressed his sincere sorrow and heartfelt regret for what has transpired as a 

result of his conduct. Nonetheless, this sorrow and regret come too late. In this regard, 

we reiterate our comments from People v. Martin, 289 Ill. App. 3d 367, 376-77, 682 

N.E.2d 460, 466 (1997), in which this court stated the following: 

‘DUI is not only deterrable, it is one of the most deterrable offenses because of the 

drinking required–and the time this drinking requires–before the drinker becomes 

drunk. Typically, the potential DUI defendant–sip by sip, swallow by swallow, 

drink by drink–becomes intoxicated with the full understanding and expectation 

that, at some point, he will get behind the steering wheel, drive drunk, and perhaps 

kill someone.’ ” (Emphasis in original.) People v. Winningham, 391 Ill. App. 3d 

476, 486, 909 N.E.2d 363, 372 (2009). 

¶ 47 Essentially, defendant requests that this court reweigh the aggravating and mitigating 

factors the trial court considered and substitute our judgment for that of the court. Given our 

highly deferential standard of review, however, we decline to do so. Instead, we conclude that 

the court’s imposition of a statutory minimum prison sentence of three years for defendant’s 

aggravated DUI conviction was (1) not an abuse of its discretion and (2) entirely reasonable. 

¶ 48 III. CONCLUSION 

¶ 49 For the reasons stated, we (1) affirm defendant’s conviction and sentence on his aggravated 

DUI conviction, (2) vacate his conviction and sentence on his reckless homicide conviction, 

and (3) remand to the trial court with directions to correct defendant’s sentencing order.

¶ 50 Affirmed in part and vacated in part; cause remanded with directions.