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01/17/97 PEOPLE STATE ILLINOIS v. MILTON A. CULLY

January 17, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MILTON A. CULLY, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County. No. 95--CF--261. Honorable Conrad F. Floeter, Judge, Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published January 17, 1997. Released for Publication February 20, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Bowman and Rathje, JJ., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Following a jury trial, defendant, Milton A. Cully, Jr., was convicted of practicing medicine without a license in violation of section 50 of the Medical Practice Act of 1987 (Act) (225 ILCS 60/50 (West 1994)). Defendant appeals, contending that (1) it was unconstitutional for the State to use an underlying statute that allows the nonrenewal of a medical license when the licensee has defaulted on an educational loan (20 ILCS 2105/60(5) (West 1994)) in conjunction with section 50 of the Act; (2) the trial court erred when it refused to instruct the jury that knowledge was an element of the offense; and (3) prosecutorial misconduct denied defendant a fair trial.

Defendant was self-employed as a licensed chiropractic physician in Algonquin, Illinois, from July 31, 1989, through July 31, 1993. On April 5, 1993, the Illinois Department of Professional Regulation (Department) sent defendant two documents.

One of the documents was entitled "NOTICE OF ORDER OF REFUSAL TO RENEW " (Nonrenewal Notice). The Nonrenewal Notice provided, in relevant part:

"PLEASE TAKE NOTICE that pursuant to Illinois Revised Statues [sic ] (1991), Chapter 127, Paragraph 60(5) [now 20 ILCS 2105/60(5)] the Director of the Department of Professional Regulation signed the attached ORDER which provides that the Department shall refuse to renew your license because your Illinois Education Loan is in default.

The Department's Order also provides that renewal shall be denied until a satisfactory repayment schedule has been established with the Illinois Student Assistance Commission (ISAC) and approved by the Department. Please contact the ISAC to determine the terms of a repayment schedule.

***

You are hereby advised that you are to cease practice as of July 31, 1993. PRACTICE BEYOND THAT DATE MAY SUBJECT YOU TO CRIMINAL PROSECUTION AND DEPARTMENT PROSECUTION FOR UNLICENSED PRACTICE.

YOU ARE FURTHER NOTIFIED that you have a right to judicial review of all final administrative decisions of this Department, pursuant to the provisions of the 'ADMINISTRATIVE REVIEW ACT', (Illinois Revised Statutes (1991), Chapter 110, Paragraph 3-101 et seq.)."

The second document was entitled "ORDER OF REFUSAL TO RENEW " (Nonrenewal Order). The Nonrenewal Order stated that the Department was ordering the nonrenewal of defendant's license to practice as a chiropractic physician effective July 31, 1993. The Nonrenewal Order also stated that the Department would continue to refuse to renew defendant's license until a satisfactory repayment schedule was established with the ISAC and approved by the Department.

Defendant's license expired on July 31, 1993, and the Department has not renewed it. Nonetheless, defendant continued to practice chiropractic medicine until March 31, 1995, when he was arrested for practicing medicine without a license.

At trial, defendant testified that, in response to the Nonrenewal Notice and the Nonrenewal Order, he met with an ISAC representative for the purpose of stopping the nonrenewal of his license. The balance of defendant's educational loan at that time was $12,025.56. Defendant acknowledged that his monthly payments on the loan were $160, but he had not made any payments. In April 1993, defendant paid the ISAC a total of $800 on the loan. Accrued interest resulted in a loan balance of $11,304.21 following defendant's April 1993 payments. Defendant testified that after the April 1993 payments, he may have made additional payments to the ISAC, but admitted that if he did, "there weren't many of them." Defendant testified that he just did not have enough money to make additional payments on the loan.

Defendant further testified that after going to ISAC and making the payments in April 1993 he thought his license was "in good status." Defendant admitted that he understood that his license was due to expire as of July 31, 1993, but testified that he thought his license would remain in good status after that date because he "was still in dialog" with the ISAC. The trial court did not allow defendant to elaborate as to the details of this dialog, but did allow defendant to testify that he was in regular contact with the ISAC, had brought his financial records to the ISAC representatives, and had contact with the ISAC regarding his license as recently as October 1994.

On cross-examination, defendant acknowledged that his license to practice chiropractic medicine in Illinois expired on July 31, 1993. Defendant also acknowledged that the license which expired July 31, 1993, was the second license he had received from the Department and that prior to its expiration he had displayed the license in his office by framing it and hanging it on a wall.

On cross-examination, defendant also testified as follows:

"Q. Mr. Cully, you knew the Department of Professional Regulations did not renew your license, and in fact, that it was expired on July 31, 1993; is that right?

A. Yes.

Q. You never got anything in the mail and never got a new license; is that right?

A. That's correct.

Q. You never filled out an application and sent in the fee; did you?

A. That's correct."

The jury found defendant guilty of practicing medicine without a license. The offense is a Class 4 felony for the first violation and a Class 3 felony for subsequent violations. 225 ILCS 60/59 (West 1994). The trial court sentenced defendant to 24 months of conditional discharge, fined him $500, ordered him to pay $1,000 in costs for public defender services, and ordered him to perform 200 hours of public service work. Defendant's appeal followed the denial of his motion for a new trial.

On appeal, defendant first raises the issue of whether the State's application of section 50 of the Act to defendant was unconstitutional. Section 50 (225 ILCS 60/50 (West 1994)) describes the offense of practicing medicine without a license. Section 60(5) of Act 2105 of the Civil Administrative Code (Act 2105) (20 ILCS 2105/60(5) (West 1994)) is also relevant. Section 60(5) of Act 2105 allows the Department to deny the renewal of a medical license to any person who has defaulted on an educational loan guaranteed by the ISAC. Defendant contends that the Department's use of section 60(5) of Act 2105 in conjunction with section 50 of the Act was both a violation of equal protection and an unlawful ...


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