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12/21/95 PEOPLE STATE ILLINOIS v. HENRY SHEEHAN ET

December 21, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
HENRY SHEEHAN ET AL., APPELLEES.



Appeal fro the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. Timothy Q. Sheldon, Judge, presiding.

The Honorable Justice Miller delivered the opinion of the court: Justice Harrison, dissenting:

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Section 11-501(d)(1) of the Illinois Vehicle Code provides that a defendant must have committed at least two prior driving under the influence (DUI) violations before the classification of a subsequent DUI offense may be aggravated from a misdemeanor to a felony. (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(d)(1).) At issue in each of these consolidated cases is whether an aggravated DUI charge was properly dismissed on the defendant's pretrial motion when the State alleged a prior DUI violation resulting in supervision as one of the two required enhancing offenses.

The defendants, Henry Sheehan and Victor Pall, were separately charged in the circuit court of Kane County with aggravated driving under the influence of alcohol, a Class 4 felony. (Ill. Rev. Stat. 1991, ch. 95 1/2, pars. 11-501(a)(2), (d)(1).) The aggravated charge is brought for a third or subsequent DUI offense, and the complaints here alleged that the defendants had been found guilty of DUI on two prior occasions. Each defendant subsequently moved to dismiss his felony DUI charge for failure to state an offense (Ill. Rev. Stat. 1991, ch. 38, par. 114-1(a)(8)). In their motions, the defendants argued that a DUI offense resulting in a successfully completed term of supervision may not be used to enhance a later charge. The defendants relied on the provision in the supervision statute, section 5-6-3.1(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-6-3.1(f)), which states that discharge after the completion of a term 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." Each defendant averred that he had successfully completed the term of supervision imposed for his initial DUI offense. Defendant Pall further argued that the legislature had intended that only DUI offenses resulting in convictions could be used to enhance a later charge, and he cited a portion of the legislative history of the felony DUI statute in support of that contention.

In response, the State maintained that the aggravated charges were valid and could be predicated on prior offenses for which the defendants had completed terms of supervision. The State argued that the plain language of the felony DUI statute, which requires that the accused have "committed" prior offenses, was the most reliable indication of legislative intent and was sufficiently broad to include within its scope offenses for which supervision had been imposed. The State also observed that supervision may not be imposed unless a defendant stipulates to facts supporting the charge or pleads guilty or is found guilty.

The same judge heard the defendants' pretrial motions separately on the same day and, following argument, dismissed the felony DUI charge against each defendant. The judge believed that use of a prior charge for which supervision had been completed was inconsistent with the statutory language limiting an offender's disqualifications or disabilities following discharge from supervision. In addition, the judge found that the legislative history cited by defendant Pall established that the General Assembly had intended that only convictions could support a penalty enhancement under the felony DUI statute.

The State in both cases elected to appeal from the dismissal orders (see 145 Ill. 2d R. 604(a)(1)) rather than proceed on the pending charges against the defendants as unenhanced Class A misdemeanors. The cases were then consolidated for purposes of appeal. With one justice dissenting, the appellate court affirmed the orders dismissing the felony DUI charges against the defendants. (261 Ill. App. 3d 325.) Unlike the trial judge, the appellate court did not believe that only offenses resulting in convictions could be used to enhance a subsequent DUI charge. The appellate court did agree with the trial judge, however, that dismissal of the charges was necessary in these cases. Although the proceedings against the two defendants had not advanced beyond the pleading stage, the appellate court considered, on its own initiative, a number of questions concerning the proof of prior offenses under the felony DUI statute. The court believed that a DUI offense resulting in supervision did not alone "conclusively prove" the commission of a DUI offense for enhancement purposes. The court found here that the State had failed to sufficiently corroborate the evidence of the defendants' prior commissions of the offense of DUI or to show that the defendants had the benefit of counsel in the prior proceedings that resulted in dispositions of supervision. (261 Ill. App. 3d at 331-34.) The dissenting justice would have found that a prior DUI offense resulting in supervision establishes, without more, that a defendant "committed" the prior act for enhancement purposes, and thus would have reversed the circuit court's dismissals. 261 Ill. App. 3d at 335-37 (Doyle, J., dissenting).

We granted the State's petition for leave to appeal (145 Ill. 2d Rules 315(a), 604(a)(2)), and we now reverse the judgments of the appellate and circuit courts. Although defendant Sheehan has not filed an appellee's brief before this court, we believe that his case may properly be decided on the merits. ( First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.) The two cases consolidated here arose from identical circumstances and involve the same issues, and thus we will consider the arguments made by defendant Pall in his appellee's brief as applicable to Sheehan's case as well.

As we have noted, the felony DUI charges in these cases were challenged by the defendants in pretrial motions and were dismissed by the trial judge because they failed to properly allege felony DUI offenses. (See Ill. Rev. Stat. 1991, ch. 38, par. 111-3.) The purpose of a motion to dismiss for failure to state an offense is to challenge the sufficiency of the allegations in the complaint, not the sufficiency of the evidence. ( People v. Finley (1991), 209 Ill. App. 3d 968, 974, 154 Ill. Dec. 412, 568 N.E.2d 412.) An appeal from such a ruling requires the reviewing court to determine whether the complaint complies with the statutory requirements that a charge be in writing, that it set forth the nature and elements of the offense, and that it allege the provision violated, the name of the accused, and the date and county of commission. ( People v. Meyers (1994), 158 Ill. 2d 46, 51, 196 Ill. Dec. 646, 630 N.E.2d 811; see Ill. Rev. Stat. 1991, ch. 38, par. 111-3(a).) Moreover, when the State seeks to increase the classification of an offense "because of a prior conviction," the charge "shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant." (Ill. Rev. Stat. 1991, ch. 38, par. 111-3(c).) Although the preceding provision speaks in terms of a "prior conviction," we may assume that a similar pleading requirement would apply even if the predicates for a felony DUI charge are not limited to formal judgments of conviction. The complaints against the present defendants alleged their prior offenses, and the issue properly raised on appeal, then, is whether a DUI charge for which a defendant successfully completed a term of supervision may serve to enhance a subsequent charge of the same offense.

As a preliminary matter, we note that several other districts of the appellate court have construed the felony DUI statute when presented with the same issue raised here. The appellate court in those cases has held that the term "committed" as used in the felony 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 used as automatic enhancing offense); People v. Lambert (3d Dist. 1993), 249 Ill. App. 3d 726, 729-30, 188 Ill. Dec. 909, 619 N.E.2d 534 (term "committed" as used in felony DUI statute unambiguous and permits use of prior DUI offenses resulting in supervision); People v. Winkler (1st Dist. 1993), 248 Ill. App. 3d 954, 957, 188 Ill. Dec. 91, 618 N.E.2d 661 (while supervision is not a conviction, term "committed" as used in felony DUI statute permits use of prior DUI offenses resulting in supervision); but cf. People v. Harrison (5th Dist. 1992), 225 Ill. App. 3d 1018, 1024, 168 Ill. Dec. 12, 588 N.E.2d 1256 (although use of DUI offense resulting in supervision as enhancing offense was not at issue, court stated that felony DUI statute requires two prior convictions to enhance offense).) As we explain below, we agree with the appellate court decisions that have held that the term "committed" permits the use of a DUI offense resulting in supervision as an enhancing offense under the felony DUI statute.

Defendant Pall first argues that the trial judge correctly held that the term "committed," as used in the felony DUI provision, is limited to formal judgments of conviction. The question is one of statutory construction, and our role here is to ascertain and give effect to the intent of the legislature. ( Ruva v. Mente (1991), 143 Ill. 2d 257, 263, 157 Ill. Dec. 424, 572 N.E.2d 888; People v. Boykin (1983), 94 Ill. 2d 138, 141, 68 Ill. Dec. 321, 445 N.E.2d 1174.) To determine legislative intent, we must first consider the statutory language itself. ( Boykin, 94 Ill. 2d at 141.) When the language is clear, "it will be given effect without resorting to other aids for construction." People v. Robinson (1982), 89 Ill. 2d 469, 475-76, 60 Ill. Dec. 632, 433 N.E.2d 674.

The felony DUI statute, which is found in section 11-501(d)(1) of the Illinois Vehicle Code, provides as follows:

"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 ...


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