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04/26/94 PEOPLE STATE ILLINOIS v. HENRY SHEEHAN AND

April 26, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
HENRY SHEEHAN AND VICTOR PALL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. Nos. 92-CF-477, 92-CF-2008. Honorable Timothy Q. Sheldon, Judge, Presiding.

Released for Publication May 27, 1994. Counsel Amended June 30, 1994. Petition for Leave to Allowed Denied October 6, 1994.

McLAREN, Geiger, Doyle

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered 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. (See Ill. 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 "discharge and dismissal upon a successful Conclusion of a Disposition of supervision shall be deemed without adjudication of guilt" (see Ill. 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. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.

We first note that the complaint 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. State 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, "if 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. ...


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