People v. Tinkham

Decision Date23 August 1994
Docket NumberNo. 4-93-0876,4-93-0876
Citation639 N.E.2d 917,203 Ill.Dec. 358,266 Ill.App.3d 391
Parties, 203 Ill.Dec. 358 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kermin A. TINKHAM, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Richard M. Kash, Jr. (argued), Fruin & Garst, Paris, for appellant.

Allan F. Lolie, Jr., State's Atty., Paris, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, David E. Mannchen (argued), Staff Atty., Springfield, for appellee.

Justice GREEN delivered the opinion of the court:

Section 11-501 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501 (West 1992)) creates the offense of driving a motor vehicle while under the influence of alcohol or drugs (DUI) and provides for penalties. Section 11-501(d)(1) of the Vehicle Code states:

"(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) [DUI offense] for the third or subsequent time." (Emphasis added.) 625 ILCS 5/11-501(d)(1) (West 1992).

On April 26, 1993, the State charged defendant Kermin A. Tinkham in the circuit court of Edgar County with the offense of aggravated DUI occurring on April 25, 1993. The first of the two factors aggravating the offense were alleged in words as follows:

"[T]he defendant having previously committed the same offense in Edgar County on April 25, 1986, and having been convicted of a second offense in Edgar County on April 17, 1987." (Emphasis added.)

Defendant moved to dismiss on the basis that the conduct alleged to have been committed on April 25, 1986, resulted in a supervisory order which was not a conviction and thus failed to qualify as the first factor which would enhance the offense charged to aggravated DUI. The State concedes that such a supervisory order was entered. The motion to dismiss was denied.

A bench trial was held and, on August 2, 1993, the circuit court found defendant guilty of aggravated DUI and sentenced him to two years of probation with 180 days to be served in the Edgar County jail. Defendant has appealed making the sole contention that the alleged April 26, 1986, episode which resulted in a supervisory order for DUI was erroneously considered as a factor which enhanced the offense of DUI, which he admittedly committed, to the offense of aggravated DUI. We disagree with this contention and affirm.

The supervisory order resulting from defendant's conduct on April 25, 1986, was entered pursuant to section 5-6-1(c) of the Unified Code of Corrections (Unified Code) which, at all times pertinent, has stated that upon a "plea of guilty" to a criminal charge or upon a stipulation of the existence of facts supporting such a charge, the court, under certain circumstances, may place the person charged under an order of supervision. (Ill.Rev.Stat.1985, ch. 38, par. 1005-6-1(c).) At all such times sections 5-6-3.1(d), (e), and (f) of the Unified Code have stated the following in regard to orders of supervision:

"(d) The court shall defer entering any judgment on the charges until the conclusion of the supervision.

(e) At the conclusion of the period of supervision, if the court determines that the defendant has successfully complied with all of the conditions of supervision, the court shall discharge the defendant and enter a judgment dismissing the charges.

(f) Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime." (Emphasis added.) (Ill.Rev.Stat.1985, ch. 38, pars. 1005-6-3.1(d), (e), (f).)

Section 5-6-3.1(f) of the Unified Code also provides a procedure where one subject to a supervisory order may eventually have that order sealed or expunged.

The dispute centers upon the meaning of the words "committed a violation of paragraph (a)" contained in section 11-501(d)(1) of the Vehicle Code. Defendant maintains that the word "committed" is ambiguous and generally ambiguities in legislation enhancing criminal penalties should be resolved in favor of the accused. (People v. Alejos (1983), 97 Ill.2d 502, 512, 74 Ill.Dec. 18, 22, 455 N.E.2d 48, 52; People v. Carlock (1981), 102 Ill.App.3d 1100, 1102, 58 Ill.Dec. 270, 272, 430 N.E.2d 212, 214.) Defendant then points out that an order of supervision does not involve entry of a judgment until the period of supervision is completed and where, as here, it is successfully completed the judgment is a dismissal of the charges which does not amount to a conviction or adjudication of guilt "for purposes of disqualification or disabilities imposed by law upon conviction of a crime." Ill.Rev.Stat.1985, ch. 38, par. 1005-6-3.1(f).

Defendant maintains that under Alejos and Carlock, and considering the characteristics of an order of supervision just described, we should interpret the word "committed" as it appears in section 11-501(d)(1) of the Vehicle Code to mean "convicted" or, in the alternative, treat the characteristics of the order of supervision as being inconsistent with enhancement. Three appellate court decisions of this State have dealt directly with enhancement through an order of supervision to aggravate a DUI and all of them hold that section 11-501(d)(1) of the Vehicle Code does not require a DUI conviction to aggravate the DUI offense. These cases are People v. Winkler (1993), 248 Ill.App.3d 954, 188 Ill.Dec. 91, 618 N.E.2d 661, People v. Lambert (1993), 249 Ill.App.3d 726, 188 Ill.Dec. 909, 619 N.E.2d 534, and People v. Sheehan (1994), 261 Ill.App.3d 325, 198 Ill.Dec. 689, 633 N.E.2d 151. We agree with the decisions in the first two of those cases and with part of the analysis in the last case.

The Winkler court concluded that the language of section 11-501(d)(1) of the Vehicle Code should be given its plain and ordinary meaning (see Cunningham v. Huffman (1993), 154 Ill.2d 398, 405, 182 Ill.Dec. 18, 21-22, 609 N.E.2d 321, 324-25) and that proof of the commission of a violation of section 11-501 of the Vehicle Code did not require proof of a conviction of that section. The court reasoned that, although placement of a person on supervision does not constitute an adjudication the person has committed the offense involved, a person placed on supervision has either pleaded the commission of the offense or stipulated to facts constituting the offense. Winkler, 248 Ill.App.3d at 957, 188 Ill.Dec. at 92-93, 618 N.E.2d at 662-63.

The Lambert court cited Cunningham and relied upon the plain meaning of section 11-501(d)(1) of the Vehicle Code as being that a person need not have been convicted of DUI to have "committed" the offense. Both decisions upheld convictions of aggravated DUI where the original commission of DUI was shown by an order of supervision.

The Sheehan court agreed that conviction of both prior enhancing DUI offenses was not necessary to elevate the third offense to aggravated DUI. Nonetheless, the majority opinion held that an enhancing offense could not be proved by a supervisory order for a prior DUI offense alone. Accordingly, the dismissal of charges which relied entirely upon a supervisory order to show an enhancing offense was affirmed in two consolidated appeals. The Sheehan majority opinion was comprehensive. It noted that a supervisory order is admissible against that defendant in a civil case but is not conclusive upon the question upon which it is admitted. (See Wright v. Stokes (1988), 167 Ill.App.3d 887, 891-92, 118 Ill.Dec. 853, 856, 522 N.E.2d 308, 311.) The Sheehan majority, as does defendant here, relied upon the stated characteristics of a supervisory order set forth in sections 5-6-3.1(d), (e), and (f) of the Unified Code in concluding such an order is also nonconclusive when presented for enhancement in a criminal case.

The Sheehan majority does envision the case of a supervisory order as some evidence of the commission of an enhancing DUI offense in a case where aggravated DUI is charged. However, to be admissible that majority would require the State to prove that the defendant had opportunity for counsel before making the plea and that a factual basis existed for the plea.

The Sheehan majority looked to the legislative history of House Bill 2700 enacted during the 1987 session of the General Assembly (85th Ill.Gen.Assem., House Bill 2700, 1987 Sess.), which added the aggravated DUI provisions to section 11-501 of the Vehicle Code. The majority found that the legislative history was inconclusive as to the use of an order of supervision in enhancing a DUI offense to a Class 4 felony. We agree with that assessment.

The Sheehan majority then applied the rule that when legislative intent is unclear, the court should select a construction which is logical and useful (Check Inn Lounge, Inc. v. Kozubowski (1987), 164 Ill.App.3d 1023, 1030, 115 Ill.Dec. 917, 921, 518 N.E.2d 442, 446), and avoid a construction making the legislation meaningless. (Yellow Equipment & Terminals, Inc. v. Lewis (1976), 35 Ill.App.3d 875, 879, 342 N.E.2d 426, 429.) The opinion agreed with the State that the word "committed" in section 11-501(d)(1) of the Vehicle Code is intended to be a more inclusive enhancing factor than would be the case if the word "convicted" had been used.

We agree with the analysis of the Sheehan majority up to and including the conclusion that the General Assembly intended for the word "committed" to have a broader scope than the word "convicted." The Sheehan majority then envisioned a procedure whereby in the proof of the enhancement of the offense the State could offer the plea in the earlier proceeding, where supervision was granted, as some evidence of enhancement and the...

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5 cases
  • People v. Sheehan
    • United States
    • Illinois Supreme Court
    • December 21, 1995
    ...DUI statute permits the use of an offense resulting in supervision as an enhancing offense. (People v. Tinkham (4th Dist.1994), 266 Ill.App.3d 391, 396, 203 Ill.Dec. 358, 639 N.E.2d 917 (use of term "committed" allowed prior DUI violation resulting in unexpunged order of supervision to be u......
  • People v. Laskowski
    • United States
    • United States Appellate Court of Illinois
    • April 4, 1997
    ...of the offense. Sheehan, 168 Ill.2d at 303-09, 213 Ill.Dec. at 694-97, 659 N.E.2d at 1341-44; People v. Tinkham, 266 Ill.App.3d 391, 396, 203 Ill.Dec. 358, 361, 639 N.E.2d 917, 920 (1994); People v. Lambert, 249 Ill.App.3d 726, 729-30, 188 Ill.Dec. 909, 911, 619 N.E.2d 534, 536 (1993); Peop......
  • Stewart v. Gramley
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 27, 1996
    ...N.E.2d 1118, 1132-33 (1989), refused to carve an exception for sentences of supervision. See also People v. Tinkham, 266 Ill.App.3d 391, 203 Ill.Dec. 358, 363, 639 N.E.2d 917, 922 (1994). The main issue on appeal is the competence of Stewart's original lawyers. He claims that they made an i......
  • People v. Fauber
    • United States
    • United States Appellate Court of Illinois
    • September 30, 1994
  • Request a trial to view additional results
1 books & journal articles
  • § 1.9 Elements
    • United States
    • Illinois DUI and Traffic-Related Decisions Section 1 Felony Driving Under the Influence of Alcohol
    • Invalid date
    ...1.9 Elements People v. Tinkham, 266 Ill. App. 3d 391, 639 N.E.2d 917, 203 Ill. Dec. 358 (4th Dist. 1994). Defendant was charged with felony DUI on April 23, 1993 based on a supervision for DUI received April 25, 1986 and a conviction for DUI on April 17, 1987. The trial court properly denie......

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