People v. Horsman

• Citation: 943 N.E.2d 139,406 Ill.App.3d 984,347 Ill.Dec. 849
• Decision Date: 25 February 2011
• Docket Number: No. 2–09–0554.,2–09–0554.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Brian HORSMAN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

406 Ill.App.3d 984

943 N.E.2d 139

347 Ill.Dec. 849

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

v.Brian HORSMAN, Defendant–Appellant.

No. 2–09–0554.

Appellate Court of Illinois, Second District.

Jan. 28, 2011.Rehearing Denied Feb. 25, 2011.

Thomas A. Lilien (Court-appointed), Deputy Defender, R. Christopher White (Court-appointed), Office of the State Appellate Defender, for Brian Horsman.John E. Farrell, DeKalb County State's Attorney, Lawrence M. Bauer, Deputy Director, Edward R. Psenicka, State's Attorneys Appellate Prosecutor, for People of the State of Illinois.

[347 Ill.Dec. 850 , 406 Ill.App.3d 985] OPINION

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

On May 26, 2009, the trial court sentenced defendant, Brian Horsman, to 30 months' conditional discharge and 180 days' incarceration in the De Kalb County jail upon his plea of guilty to the offense of felony driving while his license was revoked

[347 Ill.Dec. 851 , 943 N.E.2d 141]

(625 ILCS 5/6–303(a), (d–3) (West 2006)). Defendant appeals, contending that the trial court erred in refusing his request for a sentence of electronic home monitoring instead of jail. We affirm.

BACKGROUND

On November 20, 2007, the State charged defendant with felony driving while his license was revoked, alleging that he had committed six prior such violations. Defendant entered an open plea of guilty to the charge on November 10, 2008. At a sentencing hearing on February 17, 2009, defendant requested that he be placed on electronic home monitoring as a means of fulfilling the statutory requirement that he be sentenced to imprisonment. The trial court rejected the argument that electronic home monitoring fulfilled the imprisonment requirement, and the court sentenced defendant to 180 days' incarceration in the De Kalb County jail. The sentencing order reflects that defendant was given work release. On May 26, 2009, the trial court denied defendant's motion to reconsider his sentence, and defendant filed a timely appeal.

ANALYSIS

In pleading guilty to the charge, defendant admitted that his driver's license had been revoked due to a conviction of driving under the influence (DUI) and that he had at least four prior “violations” for driving while his license was revoked. Section 6–303(d–3) of the Illinois Vehicle Code (Code) applied and provided as follows:

“Any person convicted of a fourth [or subsequent] violation of this Section is guilty of a Class 4 felony and must serve a minimum term of imprisonment of 180 days if the revocation 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 under Section 11–501.1 of this Code.” 625 ILCS 5/6–303(d–3) (West 2006).

Accordingly, defendant admits that he had to be sentenced to a minimum of 180 days' imprisonment.¹ He contends that electronic home monitoring as an alternative to jail is allowed under section 6–303(d–3).

We first address whether this issue is moot. The parties concede mootness because defendant has completed his jail sentence. Nevertheless, both parties contend that the public interest exception to the doctrine of mootness applies. We agree.

The public interest exception allows the court to consider an otherwise moot case when (1) the question presented is of a public nature; (2) there is a need for an authoritative determination for the future guidance of public officers; and (3) there is a likelihood of future recurrence of the question. In re Alfred H.H., 233 Ill.2d 345, 355, 331 Ill.Dec. 1, 910 N.E.2d 74 (2009). The public interest exception is narrowly construed and requires a clear showing of each criterion. Alfred H.H., 233 Ill.2d at 355–56, 331 Ill.Dec. 1, 910 N.E.2d 74. In Alfred H.H., our supreme court held that the sufficiency-of-the-evidence issue raised there was not of sufficient breadth, or of broad enough public interest, to satisfy the first prong. However, the court gave examples of types of issues that fulfill the first requirement, which

[347 Ill.Dec. 852 , 943 N.E.2d 142]

included a question about a statutorily required notice. Alfred H.H., 233 Ill.2d at 356–57, 331 Ill.Dec. 1, 910 N.E.2d 74. Here, the issue involves statutory construction, which is of broad public interest and therefore of a public nature. The second prong is met here because this is an issue of first impression, and there does not appear to be any authoritative determination within Illinois law. In re Charles K., 405 Ill.App.3d 1152, 1162, 347 Ill.Dec. 711, 719–20, 943 N.E.2d 1, 9–10 (2010). Consequently, there is a “pressing need” for this court to issue an advisory opinion. See Felzak v. Hruby, 226 Ill.2d 382, 393, 315 Ill.Dec. 338, 876 N.E.2d 650 (2007). Regarding the third prong, there is a likelihood of future recurrence of the question because, as the record in this case reveals, two different trial judges in the same circuit ruled differently on the question in two separate cases. Accordingly, we hold that the public interest exception applies, and we proceed to consider the merits of defendant's argument.

The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. JB4 Air LLC v. Department of Revenue, 388 Ill.App.3d 970, 973, 328 Ill.Dec. 776, 905 N.E.2d 310 (2009). The best indication of legislative intent is the plain and ordinary meaning of the statutory language. JB4 Air, 388 Ill.App.3d at 973, 328 Ill.Dec. 776, 905 N.E.2d 310. When the language of a statute is clear and unambiguous, it must be applied without the use of other aids of construction. JB4 Air, 388 Ill.App.3d at 973, 328 Ill.Dec. 776, 905 N.E.2d 310. However, if a statute is capable of being understood by reasonably well-informed persons in two or more different ways, the statute will be deemed ambiguous, and the court may consider extrinsic aids of construction to discern the legislature's intent. Solon v. Midwest Medical Records Ass'n, 236 Ill.2d 433, 440, 338 Ill.Dec. 907, 925 N.E.2d 1113 (2010). Questions of pure statutory construction are reviewed de novo. Jorgensen, 216 Ill.2d at 363, 297 Ill.Dec. 289, 837 N.E.2d 69.

At issue is the definition of the word “imprisonment” in section 6–303(d–3). Defendant contends that nothing in the statute precludes electronic home monitoring. Defendant's argument is based on a syllogism. He argues that “imprisonment” requires that a person be in custody; electronic home monitoring is a form of custody; therefore, electronic home monitoring satisfies the “imprisonment” condition of section 6–303(d–3). Alternatively, defendant argues that, if the statute is ambiguous, we are required to apply the rule of lenity.

The statute does not supply a definition of “imprisonment.” When a statute contains undefined terms, it is appropriate to use a dictionary to ascertain the plain and ordinary meaning of those terms. People v. Davison, 233 Ill.2d 30, 40, 329 Ill.Dec. 347, 906 N.E.2d 545 (2009). Webster's Third New International Dictionary defines “imprisonment” as “the act of imprisoning or the state of being imprisoned.” Webster's Third New International Dictionary 1137 (1986). “Imprison” means “to put in prison: confine in a jail.” Webster's Third New International Dictionary 1137 (1986). This is the beginning of our inquiry.

Legislative intent can also be ascertained from the use of the term in other sections of the same or other Illinois statutes. In re Application of the County Collector, 356 Ill.App.3d 668, 670, 292 Ill.Dec. 515, 826 N.E.2d 951 (2005). While the legislature did not define the term “imprisonment” in section 6–303(d–3), it defined it in the Unified Code of Corrections as follows:

[943 N.E.2d 143 , 347 Ill.Dec. 853]

“ ‘Imprisonment’ means incarceration in a correctional institution under a sentence of imprisonment and does not include ‘periodic imprisonment’ under Article 7.” 730 ILCS 5/5–1–10 (West 2008).

The State relies on this definition for its position that the word “imprisonment” in section 6–303(d–3) unambiguously means incarceration in a correctional institution rather than confinement by electronic home monitoring. Yet, our analysis cannot end with section 5–1–10, because we must examine defendant's argument that the Electronic Home Detention Law recognizes that electronic home monitoring is a form of imprisonment.

Section 5–8A–3 of the Electronic Home Detention Law (Law) (730 ILCS 5/5–8A–3 (West 2008)) allows for certain individuals serving terms of imprisonment to be released from a correctional institution and placed in an electronic home detention program. A person serving a sentence for a conviction of a Class 1 felony, other than an excluded offense,² may be placed in an electronic home detention program for a period not to exceed the last 90 days of incarceration. 730 ILCS 5/5–8A–3(b) (West 2008). A person serving a sentence for a conviction of a Class X felony, other than an excluded offense, may be placed on electronic home detention for a period not to exceed the last 90 days of incarceration, provided that the person was sentenced after the effective date of the Law and was not prohibited from the program in the sentencing order. 730 ILCS 5/5–8A–3(c) (West 2008). Subsection (e) provides that a person serving a sentence for a conviction of a Class 2, 3, or 4 felony offense that is not an excluded offense may be placed in the program pursuant to Department of Corrections administrative directives. 730 ILCS 5/5–8A–3(e) (West 2008). The Law attaches other conditions to release into an electronic home detention program, including that the person is 55 years of age or older, the person is serving a determinate sentence, and the person has served at least 25% of the sentenced prison term. 730 ILCS 5/5–8A–3(d) (West 2008). Section 5–8A–4.1 of the Law then makes a person who fails to comply with a condition of the program in one of the ways described subject to...