Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois, No. 05-CF-31 Honorable Scott A. Madson, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Lytton
Defendant Robert T. Lucas was found guilty of driving while his license was revoked (DWLR) (625 ILCS 5/6-303(a), (d) (West 2004)), unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2004)) and armed violence (720 ILCS 5/33A-2(a) (West 2004)). The trial court sentenced him to 30 years in prison. On appeal, defendant argues that his conviction for armed violence should be vacated because (1) a conviction for enhanced DWLR cannot serve as a predicate felony for armed violence and (2) if enhanced DWLR can be used as a predicate felony, it must be proven to the jury beyond a reasonable doubt. Defendant also claims that his sentence should be vacated because it is (1) unconstitutional, (2) an abuse of the court's discretion and (3) violates one-act, one-crime principles. We affirm.
Defendant was charged by information with DWLR, unlawful use of a weapon by a felon and armed violence. The indictment provided that defendant had a previous conviction for DWLR and that the prior revocation was based on a conviction for driving under the influence (DUI) (see 625 ILCS 5/11-501 (West 2004)). The indictment further alleged that defendant, while armed with a switchblade knife, committed the offense of driving while his license was revoked.
At trial, Officer Gary Becket testified that on May 1, 2005, he was on patrol near downtown De Pue. At approximately 12:30 a.m., he observed defendant's vehicle cross the center line two times. Becket initiated his emergency lights and attempted to stop defendant's vehicle. Defendant continued driving and pulled into the driveway of a residence. He then exited the vehicle and started running toward the house. Becket yelled at defendant to stop. Defendant ran around the side of the house and disappeared inside.
Becket called for backup before attempting to remove defendant from the house. When other officers arrived, they entered the home and ordered defendant to come out of a locked bathroom. The officers heard a toilet flush, and then defendant emerged from the bathroom. After defendant was handcuffed, he asked for his lighter. The officers searched the bathroom and found defendant's wallet, some cash, and a cigarette lighter in a pile on the sink. The lighter contained a spring-loaded switchblade knife. Both residents of the apartment testified that they had never seen the lighter before that night.
The State then introduced a certified record indicating that defendant's drivers' license was revoked on the date of his arrest. Following closing arguments, the jury returned a verdict of guilty on all three counts.
At sentencing, the trial court considered the presentencing investigation report. Defendant was forty-one and had been convicted of numerous offenses between 1981 and 1996, including carrying an uncased weapon, DUI, three felony convictions for possession of a controlled substance, resisting arrest, reckless driving, attempting to elude a police officer, leaving the scene of an accident, and theft. In 1997, defendant was charged with unlawful use of a weapon by a felon, aggravated battery of a peace officer, armed violence, DUI, reckless driving and aggravated fleeing from a police officer. Defendant was sentenced to a 12-year term and was released on parole in September 2002. In July of 2003, while still on parole, he was convicted of resisting a peace officer and domestic battery. He was returned to prison and was again released on parole in September of 2003. He was later found guilty of illegal transportation of alcohol and was on probation when he was arrested for this offense.
Becket testified that upon arrest, defendant was slurring his speech and appeared to be impaired. He blew 0.00 on a Breathalyzer test. He refused to take a urine test. He also had $1,279 in cash when he was arrested. Jail Officer Jeremy Roush testified that after defendant's arrest, defendant told him that if he could get close enough to State's Attorney Patrick Herrmann, he would snap Herrmann's neck.
Officer Smith testified regarding a 1997 incident that lead to defendant's conviction for aggravated battery of an officer. Smith had stopped defendant for a traffic violation. During the stop, defendant leaned forward. Smith saw a handgun tucked in the back of defendant's waistband. Smith attempted to grab the gun. Defendant leaned back, trapped Smith's arm, and proceeded to drive away with Smith attached to the car. Smith was drug several feet and then released. Defendant was captured 24 miles later. During the chase, officers believed defendant was shooting at them. After the chase, police found a loaded handgun and several bags of drugs in defendant's vehicle. They also found numerous bags of cocaine strewn along the chase route. Defendant was convicted of armed violence, aggravated battery of a police officer, unlawful use of a weapon by a felon, driving under the influence, aggravated fleeing and eluding, and reckless driving.
In mitigation, several letters were submitted by defendant's friends, family and church members. Defendant had obtained his GED and had a ten-year-old son. A local employer testified that defendant had done some work for him in the past and was able to complete the job as requested.
During arguments, the State presented a certified record which indicated that defendant's driver's license was revoked following a DUI conviction in 1983. Defendant was convicted of DWLR in 1987. His license was reinstated. It was again revoked in 1997 and was still revoked as of May 1, 2005.
The trial judge found that defendant had committed a Class 4 felony of DWLR. He sentenced defendant to concurrent terms of 30 years for armed violence and 5 years for unlawful use of a weapon by a felon.
Defendant contends that his conviction for armed violence must be vacated because a DWLR conviction, which has been increased to a Class 4 felony based on a prior conviction for DWLR, cannot be used as a predicate felony for an armed violence conviction. He claims that enhancement of DWLR from a misdemeanor to a felony is for sentencing purposes only and not as a predicate felony for an armed violence charge.
A person commits armed violence when, "while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except first degree murder, attempted first degree murder, intentional homicide of an unborn child, predatory criminal sexual assault of a child, aggravated criminal sexual assault, aggravated kidnaping, aggravated battery of a child, home invasion, armed robbery, or aggravated vehicular hijacking." 720 ILCS 5/33A-2(a) (West 2004). In addition to those felonies that have been exempted by the legislature, the Illinois supreme court, under certain circumstances, has limited the type of felonies contemplated by the "any felony" language of the armed violence statute. For example, the offenses of voluntary and involuntary manslaughter cannot serve as predicate felonies for an armed violence conviction because the legislature did not intend for the statute to apply to conduct that is not a deliberate or deterrable offense. People v. Alejos, 97 Ill. 2d 502 (1983); People v. Fernetti, 104 Ill. 2d 19 (1984). However, if the decision to use a weapon is not forced upon a defendant or is not the result of a spontaneous decision, then the defendant's conduct can be deterred and the purpose of the armed violence statute is satisfied. People v. Becker, 315 Ill. App. 3d 980 (2000).
Defendant's DWLR charge, which served as the predicate felony for the armed violence conviction, was for a violation of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/1-101 et seq. (West 2004)). The purpose of the DWLR statute is to punish those people who drive a motor vehicle at a time when their license is suspended or revoked. The statute provides that "[a]ny 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 *** is revoked *** shall be guilty of a Class A misdemeanor." 625 ILCS 5/6-303(a) (West 2002). The statute further states that "[a]ny person convicted of a second violation of this [s]ection shall be guilty of a Class 4 felony *** if the revocation or suspension was for a violation of [s]ection 11-401 or 11-501 of this Code." 625 ILCS 5/6-303(d) (West 2004). Section 11-501 of the Code involves the offense of driving while under the influence of alcohol. See 625 ILCS 5/11-501 (West 2004).
The fundamental rule of statutory construction is to ascertain and give effect to the intention of the legislature. People v. Woodard, 175 Ill. 2d 435 (1997). Since the language used by the legislature is the best indication of legislative intent, courts look first to the words of the statute. Nottage v. Jeka, 172 Ill. 2d 386 (1996). When the language of the statute is plain and unambiguous, courts will not read in exceptions, limitations, or other conditions. People v. Daniels, 172 Ill. 2d 154 (1996).
Here, the plain language of section 6-303(a) and (d) of the Code states that any person convicted of a second violation of DWLR, when that person has been previously convicted of DWLR and the revocation was for DUI, "shall be guilty of a Class 4 felony." At trial, the State introduced a certified record from the Secretary of State indicating that defendant's license was revoked. Evidence was also presented at sentencing demonstrating that defendant had a prior conviction for DWLR and that his license had been previously revoked for driving under the influence of alcohol. Thus, according to the statutory language of section 5/6-303(d), defendant was properly charged and convicted of a Class 4 felony for driving with a revoked license.
Defendant argues that felony DWLR should be exempt as a predicate offense for armed violence because such a felony does not further the statute's purpose. Defendant admits that DWLR is not an undeterrable offense but claims that using felony DWLR as a predicate felony would deter the carrying of weapons "in all instances for whatever purposes people wish to carry them." See Alejos, 97 Ill. 2d at 510. We disagree.
In Alejos, the court noted that the presence of a weapon enhances the danger that any felony that is committed will have deadly consequences should the victim offer resistence. Thus, the stiff punishment mandated by the armed violence statute "is intended not only to punish the criminal and protect society from him but also to deter his conduct-that of carrying the weapon while committing a felony." Alejos, 97 Ill. 2d at 509. Using DWLR as a predicate felony furthers that legislative purpose. Using DWLR as a predicate felony does not deter any person from carrying a weapon while driving, an otherwise legal activity. Using DWLR as a predicate felony deters individuals from carrying a weapon while they are committing the felony of driving while their license is revoked. It is therefore a proper predicate offense for armed violence.
II. Proof of Predicate Felony at Trial
Defendant claims that the State failed to prove beyond a reasonable doubt, as elements of his crimes, that his license was revoked for the grounds set forth in section 6-303(d) (625 ILCS 5/6-303(d) (West 2004)) and section 11-501(a) (625 ILCS 5/11-501(a) (West 2004)) of the Vehicle Code. Defendant maintains that to be convicted of a Class 4 felony DWLR, the State was required to prove beyond a reasonable doubt, as an element of the crime at trial, that the "enhancing" factors were present. The State claims that it was prevented from producing such evidence at trial under section 5/111-3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c) (West 2004)).
Section 5/111-3(c) of the Code provides:
"When the State seeks an enhanced sentence 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. However, the fact of such prior conviction and the State's intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial ***. For the purposes of this section, 'enhanced sentence' means a sentence which is increased by a prior conviction form one classification of offense to another higher level classification of offense set forth in Section 5-5-1 of the [Code] ***; it does not include an increase in the sentence applied within the same level of classification of offense."
This provision of the Code applies to those situations where the State intends to enhance the charge by raising the classification of the offense due to a prior conviction. The language explicitly excludes situations where the sentence is increased because of a prior conviction but the classification of the offense remains the same. People v. Contreras, 241 Ill. App. 3d 1023 (1993).
In this case, defendant was charged with and convicted of DWLR. Due to his prior convictions for DWLR and DUI, section 5/6-303 (d)of the Vehicle Code mandated the elevation of the offense from a Class A misdemeanor to a higher-level classification, a Class 4 felony. See 625 ILCS 5/6-303(d) (West 2004). Because the prior conviction enhanced the "classification" of the offense, rather than just the sentence, section 5/111-3(c) applied. Therefore, the State was prohibited from proving the prior commissions of DWLR and DUI as an element of the Class 4 felony DWLR. People v. DiPace, 354 Ill. App. 3d 104 (2004); People v. Braman, 327 Ill. App. 3d 1091 (2002); People v. Bowman, 221 Ill. App. 3d 663 (1991). Instead, the existence of the predicate offenses was properly used after defendant's conviction to increase the classification of his crime at sentencing. See People v. Thompson, 328 Ill. App. 3d 360 (2002); Bowman, 221 Ill. App. 3d 663 (State not required to show defendant's prior conviction, or the grounds ...