People v. Heritsch

• Decision Date: 28 June 2012
• Docket Number: No. 2–09–0719.,2–09–0719.
• Citation: 361 Ill.Dec. 820,2012 IL App (2d) 090719,972 N.E.2d 305
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Kenneth HERITSCH, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 090719

972 N.E.2d 305

361 Ill.Dec. 820

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Kenneth HERITSCH, Defendant–Appellant.

No. 2–09–0719.

Appellate Court of Illinois,

Second District.

June 28, 2012.

Thomas A. Lilien, Deputy Defender (Court-appointed), Darren E. Miller (Court-appointed), Office of the State Appellate Defender, Elgin, for appellant.

Joseph P. Bruscato, Winnebago County State's Attorney, Rockford (Lawrence M. Bauer, Deputy Director, Barry W. Jacobs, State's Attorneys Appellate Prosecutor, of counsel), for the People.

OPINION

Justice HUTCHINSON delivered the judgment of the court, with opinion.

[361 Ill.Dec. 820]¶ 1 After a stipulated bench trial, defendant, Kenneth Heritsch, was convicted of aggravated driving with a revoked or suspended license (DWLR) ( 625 ILCS 5/6–303(d–5) (West 2008)). He was sentenced as a Class X offender (see 730 ILCS 5/5–5–3(c)(8) (West 2008)) to six years' imprisonment. Defendant was also convicted of operating an uninsured motor vehicle (625 ILCS 5/3–707 (West 2008)) but was not separately sentenced for that offense. Defendant appeals, arguing that his conviction of aggravated DWLR cannot stand, because the State did not prove the aggravating factor, that defendant's license had been revoked for a violation of section 11–501 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11–501 (West 2008)). We agree with defendant, affirm his conviction of operating an uninsured motor vehicle, reduce his conviction of aggravated DWLR to DWLR (625 ILCS 5/6–303(a) (West 2008)), and remand for sentencing on both convictions.

¶ 2 The indictment against defendant alleged that, on October 18, 2008, he drove on a highway while his license was revoked (625 ILCS 5/6–303(a) (West 2008)) and that, because “said revocation [was] for a violation of 625 ILCS 5/11–501,” that is, driving under the influence of alcohol (DUI), and defendant had at least 14 prior convictions of DWLR, he had violated section 6–303(d–5) of the Code. Section 6–303(d–5) reads:

“Any person convicted of a fifteenth or subsequent violation of this Section is guilty of a Class 2 felony, and is not eligible for probation or conditional discharge, if the revocation or suspension was for a violation of Section 11–401 or 11–501 of this Code, or a similar out-of-state offense, or a similar provision of a local ordinance, or a statutory summary suspension or revocation under Section 11–501.1 of this Code.” 625 ILCS 5/6–303(d–5) (West 2008).

¶ 3 At defendant's trial, the parties stipulated that a police officer would testify that, on October 18, 2008, he stopped defendant's car and defendant admitted that he was driving with a revoked license and did not produce proof of insurance. The trial court admitted a copy of defendant's driving abstract. Defendant argued that the abstract did not prove his guilt of aggravated DWLR, as it did not show that the revocation was for DUI; rather, it showed that his license had been revoked in 1991 for a controlled-substance offense and had never been reinstated. The trial court held that the issue was for sentencing, not the trial. It found defendant guilty of the two offenses.

¶ 4 At sentencing, the State argued in part that defendant's driving abstract showed that the revocation of his license had been for DUI. Defendant countered that the abstract reflected that, in 1991, his license was revoked because he had used a car to commit a drug-related felony and that, since then, he “never got his license back.” Defendant conceded that the abstract also reflected that, on October 11, 2001, his license was revoked because he had recently committed DUI. The basis for each listed revocation was section 6–205(a) of the Code, which, as pertinent here, reads:

“Except as provided in this Section, the Secretary of State shall immediately revoke the license, permit, or driving privileges of any driver upon receiving a report of the driver's conviction of * * *:

* * *

2. Violation of Section 11–501 of this Code or a similar provision of a local ordinance relating to the offense of operating or being in physical control of a vehicle while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds, or any combination thereof;

3. Any felony under the laws of any State or the federal government in the commission of which a motor vehicle was used[.]” 625 ILCS 5/6–205(a)(2), (a)(3) (West 2008).

¶ 5 Defendant reasoned that, because his license had been revoked continuously since 1991, it could not have been “re-revoked” for the DUI 10 years later. Thus, the revocation in effect as of October 18, 2008, was not for DUI but for the drug offense, so that defendant was guilty only of Class A misdemeanor DWLR. The trial court, without explanation, rejected this argument, held that defendant was guilty of aggravated DWLR, and sentenced him to six years' imprisonment. Defendant moved to reconsider the sentence, again arguing that he could not be convicted of aggravated DWLR as charged. The trial court denied the motion, and defendant timely appealed.

¶ 6 On appeal, defendant contends that the State proved only that he committed DWLR, not that he committed aggravated DWLR. Defendant relies on what he sees as the plain language of section 6–303(d–5) of the Code, as applied to the undisputed facts. He observes that, to obtain a conviction of aggravated DWLR as charged, the State had to prove that he had driven with a revoked license and that the revocation was for DUI. He notes that the evidence is undisputed that, as of October 18, 2008, his license had been revoked continuously since 1991 and that “the revocation” that made this so was based on a drug offense, not DUI. We agree with defendant.

¶ 7 The issue on appeal is primarily one of statutory construction, which raises questions of law that we review de novo. See In re Detention of Hardin, 238 Ill.2d 33, 40, 342 Ill.Dec. 555, 932 N.E.2d 1016 (2010). Our goal is to ascertain and effectuate the legislature's intent, which is best indicated by the language of the statute itself. Id. However, if a statute's language is unclear, we may resort to similar statutes or other sources to aid our inquiry. See People v. Masterson, 207 Ill.2d 305, 329, 278 Ill.Dec. 351, 798 N.E.2d 735 (2003) (citing Mowen v. Holland, 336 Ill.App.3d 368, 374, 270 Ill.Dec. 605, 783 N.E.2d 180 (2003)). One such source includes the maxim of in pari materia, under which two statutes, or two parts of one statute, concerning the same subject must be considered together to produce a “ ‘harmonious whole.’ ” People v. Rinehart, 2012 IL 111719, ¶ 26, 356 Ill.Dec. 759, 962 N.E.2d 444 (quoting Sulser v. Country Mutual Insurance Co., 147 Ill.2d 548, 555, 169 Ill.Dec. 254, 591 N.E.2d 427 (1992)).

¶ 8 Both parties agree that section 6–303(d–5) of the Code is not ambiguous, and we find no ambiguity. However, section 6–303(d–5) is silent as it pertains to multiple revocations. Therefore, we must look to other statutes in the Code to aid our inquiry. On October 18, 2008, defendant was cited for DWLR. The Code defines “revocation of driver's license” as “[t]he termination by formal action of the Secretary of a person's license or privilege to operate a motor vehicle on the public highways, which termination shall not be subject to renewal or restoration except that an application for a new license may be presented and acted upon by the Secretary after the expiration of at least one year after the date of revocation.” 625 ILCS 5/1–176 (West 2008); see also People v. Suddoth, 52 Ill.App.2d 355, 359, 202 N.E.2d 120 (1964) (defining “revocation”). A revoked license is terminated from the date of its revocation. Suddoth, 52 Ill.App.2d at 358, 202 N.E.2d 120. In the present case, defendant's driver's license had been revoked, or terminated, since 1991.

¶ 9 Defendant's driving abstract reflects another revocation of the same license in 2001, based on his recent commission of DUI. However, a revoked driver's license remains revoked until a new license is issued. People v. Morrison, 149 Ill.App.3d 282, 284, 102 Ill.Dec. 549, 500 N.E.2d 442 (1986). The Code does not provide any guidance or rules in circumstances, such as here, where the Secretary has imposed additional revocations of an individual's driver's license for additional offenses committed after the original revocation but where the driver has never applied for a new license or where the Secretary has never issued the driver a new license. Therefore, as applied to the facts of this case, the Secretary's 2001 formal administrative sanction of revocation had no effect because the Secretary had never issued defendant a new license.

¶ 10 Reading section 1–176 in conjunction with sections 6–205(a)(3) and 6–303(d–5) of the Code, the legislative intent becomes clear. Section 1–176 provides for only one revocation of an individual's driver's license. The reason for defendant's 1991 revocation was a drug offense, which triggered subsection (3) of section 6–205(a) of the Code, not subsection (2). Section 6–303(d–5) speaks of “ the revocation or suspension” (emphasis added) (625 ILCS 5/6–303(d–5) (West 2008)), implying that there is only one pertinent triggering event. Therefore, the 1991 revocation of defendant's license to which section 6–303(d–5) refers was not based on a triggering event in section 6–303(d–5). Accordingly, the State proved that defendant committed only the offense of DWLR and not the offense of aggravated DWLR.

¶ 11 Our holding appears to place defendant in a better position than he would have been had his license not been revoked until 2001, after he committed DUI. However, we cannot escape the plain language and meaning of section 6–303(d–5), and, even if we could ignore the legislature's unambiguous command, it is far from clear that we could construe the statute liberally so as to reach a different conclusion. See People ex rel. Birkett v. Dockery, 235 Ill.2d 73, 81, 335...