People v. Webber

• Decision Date: 30 May 2014
• Docket Number: No. 2–13–0101.,2–13–0101.
• Citation: 2014 IL App (2d) 130101,381 Ill.Dec. 954,11 N.E.3d 890
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellant, v. Nicholas C. WEBBER, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2014 IL App (2d) 130101

11 N.E.3d 890

381 Ill.Dec. 954

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

v.Nicholas C. WEBBER, Defendant–Appellee.

No. 2–13–0101.

Appellate Court of Illinois,

Second District.

May 30, 2014.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa A. Hoffman and Edward R. Psenicka, Assistant State's Attorneys, of counsel), for the People.

Thomas A. Lilien and Sherry R. Silvern, both of State Appellate Defender's Office, of Elgin, for appellee.

OPINION

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

¶ 1 The State appeals from an order of the circuit court of Du Page County dismissing count I of an indictment against defendant, Nicholas C. Webber, which charged him with felony driving while his license was revoked (DWLR) (625 ILCS 5/6–303(d–2) (West 2012)). Count I alleged that “defendant drove or was in actual physical control of a motor vehicle on a highway in Illinois at a time when his driver's license, permit, or privilege to operate a motor vehicle was revoked, where the revocation was based upon defendant's conviction [of driving under the influence of alcohol or other drugs (DUI) ( 625 ILCS 5/11–501(a) (West 2012)) ], said defendant having been previously convicted two times of Driving While License Revoked or Driving While License Suspended.” Defendant moved to dismiss on the basis that his license had been revoked in 1996 because of a violation of section 4–102 of the Illinois Vehicle Code (Code) (625 ILCS 5/4–102 (West 1996)), which proscribes, inter alia, damaging, tampering, or removing parts from a motor vehicle. Although defendant's driving record indicated that his license was later revoked for DUI, defendant noted that he had never received a new license after the 1996 revocation. He argued that, pursuant to People v. Heritsch, 2012 IL App (2d) 090719, 361 Ill.Dec. 820, 972 N.E.2d 305, the revocation for DUI that appeared on his driving record was of no effect and therefore could not be the basis for enhancing DWLR to a felony. The State argues on appeal that Heritsch was decided incorrectly. We agree, and we therefore reverse the dismissal order and remand for further proceedings.

¶ 2 As pertinent here, section 6–303(a) of the Code (625 ILCS 5/6–303(a) (West 2012)) provides that “any person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person's driver's license, permit or privilege to do so or the privilege to obtain a driver's license or permit is revoked or suspended as provided by this Code or the law of another state, except as may be specifically allowed by a judicial driving permit issued prior to January 1, 2009, monitoring device driving permit, family financial responsibility driving permit, probationary license to drive, or a restricted driving permit issued pursuant to this Code or under the law of another state, shall be guilty of a Class A misdemeanor.” Pursuant to section 1–176 of the Code, “revocation” of a driver's license means “[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 2012).

¶ 3 At the time of the alleged offense in this case, subsections (d–2), (d–3), (d–4), and (d–5) of section 6–303 provided for escalating penalties based on the number of prior convictions “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–2), (d–3), (d–4), (d–5) (West 2012). ¹ Section 11–401 imposes certain duties on motorists involved in accidents and, as noted, section 11–501 is the DUI statute. Under section 11–501.1, the so-called “ implied consent law,” a motorist operating a vehicle on a public highway in Illinois is deemed to have consented, if arrested for DUI, to chemical testing to determine his or her blood alcohol level. Refusal to undergo testing, or submission to a test that reveals a blood alcohol level of 0.08 or more, results in the summary suspension of the motorist's driving privileges. Defendant was charged under section 6–303(d–2), which provided that a defendant convicted of a third violation of section 6–303(a) was guilty of a Class 4 felony. 625 ILCS 5/6–303(d–2) (West 2012).

¶ 4 In Heritsch, the defendant's conviction of DWLR was enhanced to a Class 2 felony under section 6–303(d–5). The offense occurred in 2008. Heritsch's license had been revoked in 1991 because he had used a motor vehicle to commit a drug-related felony. Heritsch never obtained a new driver's license. However, the abstract of Heritsch's driving record showed that, in 2001, he had violated section 11–501 of the Code— i.e., he had committed the offense of DUIC—and the Secretary of State revoked his license for that reason. Because the 1991 revocation was not for one of the reasons that triggered an enhanced sentence under section 6–303(d–5), the validity of Heritsch's felony conviction depended on whether he was eligible for an enhanced sentence on the basis of the 2001 revocation for DUI. The Heritsch majority in essence concluded that, because his license had been revoked in 1991 and he never applied for a new license, there was no license that could be revoked when Heritsch committed DUI in 2001. Therefore, according to the majority, “the Secretary's 2001 formal administrative sanction of revocation had no effect.” Heritsch, 2012 IL App (2d) 090719, & 9, 361 Ill.Dec. 820, 972 N.E.2d 305.

¶ 5 As noted, the State urges us to depart from the Heritsch majority's holding. Defendant, after summarizing the majority opinion in Heritsch, asserts it was “well-reasoned and supported by statute and case law.” The major premise of defendant's argument, however, is simply that principles of stare decisis dictate that we adhere to Heritsch's holding.

¶ 6 We note that in People v. Smith, 2013 IL App (2d) 121164, 376 Ill.Dec. 634, 999 N.E.2d 809, which was decided during the pendency of this appeal, a different panel of this court had occasion to consider the same issue presented in Heritsch and in this case. The Smith court concluded that the holding in Heritsch was incorrect. The Smith court prefaced its analysis with the following observation:

“[A]lthough the trial court was required to follow Heritsch [citation], we are not bound to do so. Our supreme court has noted:

‘ “ ‘[ S]tare decisis requires courts to follow the decisions of higher courts, but does not bind courts to follow decisions of equal or inferior courts.’ ” [Citation.] Thus, the opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels. [Citation.]' ” Id. ¶ 7 (quoting O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill.2d 421, 440, 323 Ill.Dec. 2, 892 N.E.2d 994 (2008)).

¶ 7 In Smith, the defendant was charged with, inter alia, driving while his license was suspended (DWLS) (625 ILCS 5/6–303(a) (West 2012)). That offense was charged as a Class 2 felony pursuant to section 6–303(d–5). The charging instrument originally alleged that on or about January 25, 2012, Smith “ ‘operated a motor vehicle upon a road in North Aurora * * * at a time when [his] driver's license was suspended or revoked for a violation of Illinois Compiled Statutes Chapter 625, Act 5, Section 11–501 and after having fourteen or more prior violations for the offense of driving while license was revoked or suspended.’ ” Smith, 2013 IL App (2d) 121164, ¶ 2, 376 Ill.Dec. 634, 999 N.E.2d 809. The State was subsequently permitted to amend the indictment to allege that Smith was driving while a statutory summary suspension of his license (see 625 ILCS 5/11–501.1 (West 2012)) was in effect. Smith moved for dismissal of the charge. At the hearing on the motion, he relied on an abstract of his driving record to establish that the statutory summary suspension was entered at a time when his driver's license had already been revoked. Relying on Heritsch, Smith argued that the statutory summary suspension was a nullity and therefore could not be used to enhance the DWLS charge to a felony.

¶ 8 Observing that the question presented was one of statutory interpretation, the Smith court recited the familiar principle that “[w]hen the language of a statute is clear and unambiguous, courts may not depart from the language by incorporating exceptions, limitations, or conditions that the General Assembly did not express.” Smith, 2013 IL App (2d) 121164, ¶ 9, 376 Ill.Dec. 634, 999 N.E.2d 809. The court added, however, that “ ‘[a] literal interpretation is not controlling where the spirit and intent of the General Assembly in enacting a statute are clearly expressed, its objects and purposes are clearly set forth, and a literal interpretation of a particular clause would defeat the obvious intent [citation]; where literal enforcement of a statute will result in great injustice that was not contemplated by the General Assembly [citation]; or where a literal interpretation would lead to an absurd result [citation].’ ” Id. (quoting Grever v. Board of Trustees of the Illinois Municipal Retirement Fund, 353 Ill.App.3d 263, 266–67, 288 Ill.Dec. 713, 818 N.E.2d 401 (2004)).

¶ 9 The Smith court acknowledged that “[i]f the statutory definition of ‘revocation’—the ‘ termination * * * of a person's license or privilege to operate a motor vehicle’ (emphasis added) [citation]—is given its most literal meaning, the argument that revocation is a singular occurrence might appear to be an ontological truism: after one's license or privilege to...