People v. Sheehan

• Decision Date: 26 April 1994
• Docket Number: Nos. 2-92-0725,2-92-0726,s. 2-92-0725
• Citation: People v. Sheehan, 633 N.E.2d 151, 261 Ill.App.3d 325, 198 Ill.Dec. 689 (Ill. App. 1994)
• Parties: , 198 Ill.Dec. 689 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Henry SHEEHAN et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 151

633 N.E.2d 151

261 Ill.App.3d 325, 198 Ill.Dec. 689

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v.Henry SHEEHAN et al., Defendants-Appellees.

Nos. 2-92-0725, 2-92-0726.

Appellate Court of Illinois Second District.

April 26, 1994.

David R. Akemann, Kane Co. State's Atty., St. Charles, William L. Browers, Deputy Director, Cynthia N. Schneider, State's Attorney Appellate Prosecutor, Elgin, for People.

Moroni & Handley, James J. Moroni, Carol Stream, for Henry Sheehan.

Dreyer, Foote, Streit, Furgason & Slocum, P.A., Richard C. Slocum, Jonathan B. Shanower, Aurora, for Victor Pall.

Justice McLARENdelivered the opinion of the court:

The State appeals from two orders of the circuit court of Kane County dismissing aggravated driving while under the influence (DUI) charges against the defendants, Victor Pall and Henry Sheehan.In this consolidated appeal, the State raises the sole issue of whether a disposition of supervision may be used as one of the predicate offenses to enhance a DUI charge from a misdemeanor to a Class 4 felony.(SeeIll.Rev.Stat.1991, ch. 95 1/2, par. 11-501(d)(1)(now 625 ILCS 5/11-501(d)(1)(West 1992)).)For the following reasons, we affirm.

In No. 91-CF-2008, Victor Pall was charged with felony DUI.(Ill.Rev.Stat.1991, ch. 95 1/2, pars. 11-501(a)(2), (d)(1)(now 625 ILCS 5/11-501(a)(2), (d)(1)(West 1992)).)The complaint alleged that Pall drove while under the influence of alcohol after having been previously found guilty of driving under the influence of alcohol on August 25, 1982, and July 14, 1986.

Pall moved to dismiss the charge on the ground that an earlier order of supervision did not satisfy the statutory predicate for enhancing a misdemeanor DUI charge to a Class 4 felony.In his motion, Pall stated that following his guilty plea to the August 25, 1982, charge he was placed on supervision and that he satisfactorily completed the supervision period on February 25, 1983.Approximately three years later, he was again arrested for driving while under the influence and convicted of that charge on July 14, 1986.Approximately five years after his conviction on the second charge, Pall was arrested for driving while under the influence and charged in the present case with felony DUI.

Relying on a statutory section which provides, in part, that "[d]ischarge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt"(seeIll.Rev.Stat.1991, ch. 38, par. 1005-6-3.1(f)(now 730 ILCS 5/5-6-3.1(f)(West 1992))), the trial court dismissed the felony DUI charge against Pall.Rather than proceed on the misdemeanor DUI charge, the State dismissed the charge and filed a timely certificate of impairment and notice of appeal.

In No. 92-CF-477, Henry Sheehan was charged with aggravated DUI.(Ill.Rev.Stat.1991, ch. 95 1/2, pars. 11-501(a)(2), (d)(1)(now 625 ILCS 5/11-501(a)(2), (d)(1)(West 1992)).)The felony DUI complaint charged that Sheehan drove while under the influence of alcohol after previously having been found guilty of DUI on February 5, 1986, and December 19, 1989.

In addition to a motion in limine to exclude the use of certain driving records Sheehan moved to dismiss the felony DUI charge, contending that the State's complaint failed to state the minimum statutory predicate for enhancement of misdemeanor DUI to a Class 4 felony.Sheehan asserted that following his plea of guilty on February 5, 1986, to driving while under the influence, the court imposed a period of supervision.Adopting its earlier ruling and reasoning in People v. Pall (Cir.Ct. Kane Co.), No. 91-CF-2008, the trial court dismissed the felony information.The State filed a timely certificate of impairment and notice of appeal, and both cases were consolidated for appeal.

As a preliminary matter, we note that Sheehan has not filed an appellee's brief with this court.Nevertheless, we will proceed to the merits because the record is simple and the claimed error is such that this court can decide it without the aid of an appellee's brief.SeeFirst Capitol Mortgage Corp. v. Talandis Construction Corp.(1976), 63 Ill.2d 128, 133, 345 N.E.2d 493.

We first note that the complaints for preliminary hearing filed by the State against both defendants states that they drove under the influence of alcohol "after having previously been found guilty of driving under the influence."(Emphasis added.)As the supervision statute clearly states that the successful completion of supervision "shall be deemed without adjudication of guilt"(Ill.Rev.Stat.1991, ch. 38, par. 1005-6-3.1(f)(now 730 ILCS 5/5-6-3.1(f)(West 1992))) and both defendants completed supervision successfully, they obviously were not "found guilty," as the State's complaints charge.

However, we will look beyond the language of the complaint and address the core question of whether, and to what extent, a successfully completed supervision may be counted when applying the enhancement statute.

Enacted as a deterrent to repeat offenders, the felony DUI statute provides for an enhanced penalty when a defendant has committed a DUI violation for the third or subsequent time.Section 11-501 provides, in relevant part:

"(d) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol or drugs or a combination of both which shall be a Class 4 felony if:

(1) such person committed a violation of paragraph (a) for the third or subsequent time."(Emphasis added.)Ill.Rev.Stat.1991, ch. 95 1/2, par. 11-501(d)(1)(now 625 ILCS 5/11-501(d)(1)(West 1992)).

The State maintains that the use of the word "committed" evinces the legislature's intent that an order of supervision should automatically qualify and conclusively prove a predicate offense.The defendant responds that the State must show two prior convictions as the predicate necessary for enhancement to a felony DUI charge.

"The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature."People v. Boykin(1983), 94 Ill.2d 138, 141, 68 Ill.Dec. 321, 445 N.E.2d 1174.

The first place that a court of review will look to ascertain that intent is the language employed in the statute, and such language should be accorded its plain or ordinary and popularly understood meaning.(Collins v. Board of Trustees of the Firemen's Annuity & Benefit Fund(1993), 155 Ill.2d 103, 111, 183 Ill.Dec. 6, 610 N.E.2d 1250.)When the language is clear, it will be given effect without resort to other aids for construction.(People ex rel. Baker v. Cowlin(1992), 154 Ill.2d 193, 197, 180 Ill.Dec. 738, 607 N.E.2d 1251.)Conversely, "[i]f the language is capable of being understood by reasonably well-informed persons in two or more different senses, an ambiguity exists, and it is proper to examine sources other than the statute's language to ascertain the legislative intent.(Costello v. Governing Board of Lee County Special Education Association(1993), 252 Ill.App.3d 547, 557, 191 Ill.Dec. 376, 623 N.E.2d 966.)Published legislative history is an appropriate source to determine the legislature's intent when an ambiguity exists.People v. Kezerian(1978), 63 Ill.App.3d 610, 614, 20 Ill.Dec. 178, 379 N.E.2d 1246.To "commit" means "[t]o perpetrate, as a crime; to perform as an act."(Black's Law Dictionary 273 (6th ed. 1990).)This definition hardly answers the question before us: whether "commit," as used in the context of section 11-501, necessarily includes a disposition of supervision.The dissent accepts the State's conclusory argument that because the legislature did not use the word "convict," it must surely have meant that the scrap of paper which demonstrates that a case ended in a disposition of supervision is proof that a person who received the supervision actually committed the offense of DUI.We are constrained to follow established law regarding proof of a commission of an offense rather than adopt the State's unfounded position.

As our ultimate goal in statutory interpretation is to give the words the meaning intended by the legislature, and because the State and the defendant present reasonable interpretations of the word "committed" that differ, we will examine the legislative history, which the dissent is reluctant to do, perhaps because the history demonstrates quite conclusively that the legislature never expressed its intent as to the meaning of "committed."

The dissent misstates our reasons for finding that "committed" as used in section 11-501 is ambiguous.The dissent claims that we base our determination "solely on the basis that both parties perceive differing legislative prerogatives underlying the use of the word 'committed.' "We base our finding of ambiguity on our dual concern for discovering the true intent of the legislature, which must always be the touchstone of statutory construction, and our belief that the defendant and the State present reasonable interpretations that differ, which is an appropriate basis for making such a determination.(Costello, 252 Ill.App.3d at 557, 191 Ill.Dec. 376, 623 N.E.2d 966.)The dissent claims that we"beg the question of ambiguity."We respectfully submit that it is the dissent which begs the question by concluding without citation to authority or serious analysis that the disposition of supervision unambiguously constitutes proof of a commission rather than consider whether the incident upon which the supervision was based was intended to be included within the meaning of "committed."

The DUI enhancement provision was added to section 11-501 by House Bill 2700 during the 1987 session of the General Assembly.A published legislative history of House Bill 2700 covers 27 pages of House and Senate debate.It discloses that the lawmakers never directly considered the question we face...