People v. Lucas, 104558.

CourtSupreme Court of Illinois
Citation897 N.E.2d 778,231 Ill.2d 169
Docket NumberNo. 104558.,104558.
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Robert T. LUCAS, Jr., Appellant.
Decision Date17 October 2008
897 N.E.2d 778
231 Ill.2d 169
The PEOPLE of the State of Illinois, Appellee,
Robert T. LUCAS, Jr., Appellant.
No. 104558.
Supreme Court of Illinois.
October 17, 2008.

[897 N.E.2d 779]

Robert Agostinelli, Deputy Defender, Fletcher P. Hamill, Assistant Defender, Office of the State Appellate Defender, Ottawa, for appellant.

Lisa Madigan, Attorney General, Springfield, Patrick J. Herrmann, State's Attorney, Princeton (Michael A. Scodro, Solicitor General, Michael M. Glick, Garson Fischer, Assistant Attorneys General, Chicago, of counsel), for the People.


Justice GARMAN delivered the judgment of the court, with opinion:

Following a jury trial in the circuit court of Bureau County, defendant, Robert T. Lucas, Jr., was convicted of driving while his driver's license was revoked (625 ILCS 5/6-303(d) (West 2004)), unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2004)), and armed violence (720 ILCS 5/33A-2(a) (West 2004)). The appellate court affirmed defendant's convictions and sentences. 372 Ill.App.3d 279, 310 Ill.Dec. 96, 865 N.E.2d 420.


Count I of the indictment, charging defendant with driving while license revoked, subsequent offense, alleged that on May 1, 2005, defendant drove his motor vehicle while his driver's license was revoked, "said revocation having been entered on December 27, 1983, as a result of a conviction of Driving While Under The Influence of Alcohol, and the defendant had been previously convicted of [driving while license revoked] on August 26, 1987 in Bureau County Cause Number 87-TR-2961." Count II of the indictment charged defendant with unlawful possession of a weapon by a felon, based on defendant's possession of a switchblade knife. Count III charged defendant with armed violence, alleging that he, while armed with a dangerous weapon, committed driving while license revoked, subsequent offense, a Class 4 felony.

897 N.E.2d 780

At defendant's trial, the evidence showed that Deputy Gary Becket observed a car twice cross the center line of the street. Becket activated his emergency lights, but the car did not stop. Instead, the driver continued driving for a short distance, eventually pulling into the driveway of a residence. A man Becket recognized as defendant exited the car and ran around to the back of the house. When defendant did not obey Becket's shouted command to stop, Becket gave chase. Becket did not see defendant when he arrived at the rear of the house. He knocked on the door of the house and Richard Yuvan answered. Although Yuvan had in fact allowed defendant into his house, he told Becket that he and his wife, Susan, were the only people in the house. At that point, Susan appeared and told Becket that defendant was in the house and she wanted him out.

Prior to entering the house, Becket called for backup. When Deputy Patrick Linder arrived, he and Becket went into the house. Susan told the officers that defendant had locked himself in the bathroom. After the officers ordered defendant out of the bathroom, they heard the toilet flush. Then defendant emerged. The officers observed various items on the bathroom vanity, including money, cell phones, and a lighter. The officers declined defendant's request to keep his lighter. When they examined the lighter, they discovered that it housed a spring-loaded switchblade knife. Becket acknowledged that he had no direct evidence that the knife had been in defendant's car. However, Richard and Susan Yuvan testified that the knife was not theirs, they had never seen it before, and it was not in the bathroom before defendant arrived at their home that night.

Defendant presented no evidence. The jury convicted him on all charges.

At the sentencing hearing, the State introduced into evidence a certified copy of defendant's driving abstract, showing that in 1983, defendant was convicted of driving under the influence of alcohol. His driver's license was revoked later that year. He was convicted in 1987 of driving while license revoked. His license was reinstated in 1996. Defendant was again convicted of driving under the influence of alcohol in 1997 and his license was revoked that same year. That revocation remained in effect on the date of his arrest in the instant case. Based upon this record, the prosecutor asked the circuit court to find that defendant committed the offense of driving while license revoked, subsequent offense. The prosecutor noted that defendant's "prior record was not proved up to the jury by operation of Illinois law which prevents a jury from knowing about the prior convictions for driving While License Revoked. We're asking the court to make that proper finding today so we can proceed to sentencing on that offense." The circuit court made the requested finding and sentenced defendant to concurrent terms of 30 years' imprisonment on the armed violence conviction and 5 years' imprisonment on the unlawful possession of a weapon conviction.

Defense counsel filed a posttrial motion and a motion to reconsider sentence, both of which the circuit court denied.

On appeal, defendant argued, inter alia, that driving while license revoked, subsequent offense, cannot be used as a predicate felony for a charge of armed violence. He argued that the enhancement of driving while license revoked from a misdemeanor to a felony was intended for sentencing purposes only. The appellate court relied on the plain language of the armed violence statute in rejecting defendant's argument, holding that the phrase "any felony" encompassed all felonies not

897 N.E.2d 781

specifically excluded by the statute. Defendant also argued that the prosecution had failed to prove him guilty of all the elements of driving while license revoked, subsequent offense, noting that the State had not proved to the jury defendant's prior conviction, which elevated his offense to a felony. The appellate court noted that the State was prevented from presenting such proof to the jury by section 111-3(c) of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/111-3(c) (West 2004)), which provides that the fact of a prior conviction of the charged offense and the State's intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial. The court noted that this section applies only when the classification of the offense is to be raised due to the prior conviction. In this case, the classification of defendant's offense was raised from a Class A misdemeanor to a Class 4 felony by reason of his prior conviction. Accordingly, section 111-3(c) applied. 372 Ill.App.3d at 285, 310 Ill.Dec. 96, 865 N.E.2d 420.

We granted defendant's petition for leave to appeal. 210 Ill.2d R. 315.


Defendant makes two arguments in this appeal: (1) he was improperly convicted of armed violence based on driving while license revoked, subsequent offense; and (2) his armed violence conviction and 30-year prison sentence violate the proportionate penalties clause of the Illinois constitution (Ill. Const.1970, art. I, § 11). We address only the first argument.


The issue of whether the offense of driving while license revoked, subsequent offense, may serve as a predicate felony under the armed violence statute involves the interpretation of Illinois statutes, which is a question of law, which we review de novo. See People v. Caballero, 228 Ill.2d 79, 82, 319 Ill.Dec. 364, 885 N.E.2d 1044 (2008). In addition, because the facts are not in dispute, the question of whether defendant's guilt of driving while license revoked, subsequent offense, was established is a question of law subject to de novo review. People v. Smith, 191 Ill.2d 408, 411, 247 Ill.Dec. 458, 732 N.E.2d 513 (2000).


Initially, the State argues that defendant is estopped from challenging his armed violence conviction on the ground that driving while license revoked, subsequent offense, cannot be a predicate felony because he did not preserve this argument for review. Indeed, notes the State, defendant's trial counsel affirmatively agreed that defendant did commit the offense of armed violence. What the State is really arguing is that defendant invited the alleged error. The doctrine of invited error is sometimes referred to as "estoppel." People v. Harvey, 211 Ill.2d 368, 385, 286 Ill.Dec. 124, 813 N.E.2d 181 (2004). Under the doctrine of invited error, a defendant "`may not request to proceed in one manner and then later contend on appeal that the course of action was in error.'" Harvey, 211 Ill.2d at 385, 286 Ill.Dec. 124, 813 N.E.2d 181, quoting People v. Carter, 208 Ill.2d 309, 319, 280 Ill.Dec. 664, 802 N.E.2d 1185 (2003). Here, the State's only citation to the record references the sentencing hearing. There, trial counsel did tell the judge that what defendant did constituted armed violence. However, the State does not point to anyplace in the record showing that defendant's trial counsel made any such concession during trial. Therefore, we reject the State's argument.

897 N.E.2d 782

The State also argues that defendant forfeited the issue that he was wrongly convicted of driving while license revoked, subsequent offense, for armed violence purposes. We note that the State admits it failed to raise the issue of forfeiture in the appellate court. The doctrine of forfeiture applies to the State as well as to the defendant and the State may forfeit an argument that the defendant forfeited an issue by not properly preserving it for review. People v. Williams, 193 Ill.2d 306, 347, 250 Ill.Dec. 692, 739 N.E.2d 455 (2000). In addition, we note that one of defendant's arguments is that the State failed to prove him guilty of driving while license revoked, subsequent offense, beyond a reasonable doubt. Such arguments are not subject to the normal rules of forfeiture and may be raised for the first time on appeal. People v. Walker, 7 Ill.2d 158, 160, 130 N.E.2d 182 (1955). Accordingly,...

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