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People v. Thompson

March 08, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN M. THOMPSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 99-CF-2583 Honorable George J. Bakalis, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

Released for publication March 13, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN M. THOMPSON, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Du Page County. No. 99-CF-2583 Honorable George J. Bakalis, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

PUBLISHED

 In October 1999, the defendant, John M. Thompson, was charged by indictment with aggravated driving under the influence of alcohol. The indictment alleged, in pertinent part, that the defendant committed driving under the influence of alcohol (DUI), "having previously committed two or more violations of Driving under The Influence in violation of 625 ILCS 5/11--501," a statutory provision that, among other things, sets out various offenses of driving under the influence of alcohol or drugs (625 ILCS 5/11--501 (West 1998)). The indictment further alleged that the defendant had violated sections 11--501(a)(2) and 11--501(d)(2) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11--501(a)(2), (d)(2) (West 1998)).

Section 11--501(a)(2) is the statutory provision pertaining to the misdemeanor offense of DUI. Section 11--501(d)(2) is the statutory penalty provision that makes aggravated DUI a Class 4 felony and provides for a prison sentence of one to three years' imprisonment based on a defendant's commission of a third or subsequent DUI. By referring to the previous commissions of DUI, the defendant's indictment charged a violation of section 11--501(d)(1)(A), which provides that a person convicted of DUI is guilty of aggravated DUI if "(A) the person committed a violation of this Section *** for the third or subsequent time [.]" (Emphasis added.) 625 ILCS 5/11--501(d)(1)(A) (West 1998).

Following a bench trial, the defendant was found guilty of the offense charged. The trial court denied the defendant's motion for a new trial. At the sentencing hearing, the trial court considered the defendant's prior disposition of supervision for the commission of one prior DUI in 1983 and a sentence of probation for another DUI conviction in 1985 (collectively, commissions or priors). These priors were stated in the presentence report, and the defendant did not challenge their validity or the accuracy of the report. The court also considered factors in mitigation and sentenced the defendant to a term of 24 months' probation with certain conditions attached. A judgment of conviction and sentence was entered on the Class 4 felony. The defendant timely appeals.

On appeal, the defendant argues that, since no evidence of the two prior commissions of DUI was offered at trial but was only considered at sentencing and the trial court nevertheless found the defendant guilty of aggravated DUI, the defendant was not proved guilty of the offense beyond a reasonable doubt as required by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He seeks a reversal of the felony conviction and a remand for resentencing on the lesser-included misdemeanor offense of DUI. We affirm.

In Apprendi, the defendant pleaded guilty to certain firearms violations, and the prosecutor sought an enhanced or extended sentence based on New Jersey's hate-crime statute. Under that statute, the judge was called upon to extend the sentence if the judge found by a preponderance of the evidence that, in committing the crime, the defendant acted with a purpose to intimidate the victim based on a racial motive or some similar factor enumerated in the hate-crime statute. This fact was then used to enhance the sentence well beyond the normal maximum term.

The Supreme Court characterized the defendant's mental state as an element of the substantive offense rather than as a sentencing factor. The Court ruled: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis added.) Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. The Court concluded that the New Jersey procedure was an unacceptable departure from the jury tradition and that it defeated a defendant's right to have a jury determine that he is guilty of every element of the offense beyond a reasonable doubt. The Court stated that its decision was foreshadowed by Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999) (under fifth amendment due process clause and notice and jury trial guarantees of sixth amendment, any fact other than prior conviction that increases maximum penalty for crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt).

The Apprendi Court specifically excluded the consideration of prior convictions (i.e., recidivism) from the rule of law it announced, and this recidivism exception has been applied in recent Illinois cases to extend a defendant's prison sentence beyond the normal maximum term without violating the Apprendi rule. See, e.g., People v. Pulgar, 323 Ill. App. 3d 1001 (2001); People v. Landrum, 323 Ill. App. 3d 664 (2001); People v. Dillard, 319 Ill. App. 3d 102 (2001).

In People v. Lathon, 317 Ill. App. 3d 573 (2000), the defendant received a mandatory Class X felony sentencing enhancement based on his prior felony convictions. In affirming the judgment, the Lathon court examined the policy considerations underlying the Apprendi rule and noted that the Apprendi Court had reviewed its decision in ...


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