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The People of the State of Illinois v. Kenneth Heritsch

June 28, 2012


Appeal from the Circuit Court of Winnebago County. No. 08-CF-4179 Honorable Richard A. Lucas, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice McLaren concurred in the judgment and opinion.

Justice Birkett dissented, with opinion.


¶ 1 After a stipulated bench trial, defendant, Kenneth Heritsch, was convicted of aggravated driving with a revoked or suspended license (DWLR) (625 ILCS 5/6-303(d-5) (West 2008)). He was sentenced as a Class X offender (see 730 ILCS 5/5-5-3(c)(8) (West 2008)) to six years' imprisonment. Defendant was also convicted of operating an uninsured motor vehicle (625 ILCS 5/3-707 (West 2008)) but was not separately sentenced for that offense. Defendant appeals, arguing that his conviction of aggravated DRL cannot stand, because the State did not prove the aggravating factor, that defendant's license had been revoked for a violation of section 11-501 of the Illinois Vehicle Code (the Code) (625 ILCS 5/11-501 (West 2008)). We agree with defendant, affirm his conviction of operating an uninsured motor vehicle, reduce his conviction of aggravated DRL to DRL (625 ILCS 5/6-303(a) (West 2008)), and remand for sentencing on both convictions.

¶ 2 The indictment against defendant alleged that, on October 18, 2008, he drove on a highway while his license was revoked (625 ILCS 5/6-303(a) (West 2008)) and that, because "said revocation [was] for a violation of 625 ILCS 5/11-501," that is, driving under the influence of alcohol (DUI), and defendant had at least 14 prior convictions of DRL, he had violated section 6-303(d-5) of the Code. Section 6-303(d-5) reads:

"Any person convicted of a fifteenth or subsequent violation of this Section is guilty of a Class 2 felony, and is not eligible for probation or conditional discharge, if the revocation or suspension was for a violation of Section 11-401 or 11-501 of this Code, or a similar out-of-state offense, or a similar provision of a local ordinance, or a statutory summary suspension under Section 11-501.1 of this Code." 625 ILCS 5/6-303(d-5) (West 2008).

¶ 3 At defendant's trial, the parties stipulated that a police officer would testify that, on October 18, 2008, he stopped defendant's car and defendant admitted that he was driving with a revoked license and did not produce proof of insurance. The trial court admitted a copy of defendant's driving abstract. Defendant argued that the abstract did not prove his guilt of aggravated DRL, as it did not show that the revocation was for DUI; rather, it showed that his license had been revoked in 1991 for a controlled-substance offense and had never been reinstated. The trial court held that the issue was for sentencing, not the trial. It found defendant guilty of the two offenses.

¶ 4 At sentencing, the State argued in part that defendant's driving abstract showed that the revocation of his license had been for DUI. Defendant countered that the abstract reflected that, in 1991, his license was revoked because he had used a car to commit a drug-related felony and that, since then, he "never got his license back." Defendant conceded that the abstract also reflected that, on October 11, 2001, his license was revoked because he had recently committed DUI. The basis for each listed revocation was section 6-205(a) of the Code, which, as pertinent here, reads:

"Except as provided in this Section, the Secretary of State shall immediately revoke the license, permit, or driving privileges of any driver upon receiving a report of the driver's conviction of 2. Violation of Section 11-501 of this Code or a similar provision of a local ordinance relating to the offense of operating or being in physical control of a vehicle while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds, or any combination thereof;

3. Any felony under the laws of any State or the federal government in the commission of which a motor vehicle was used[.]" 625 ILCS 5/6-205(a)(2), (a)(3) (West 2008).

¶ 5 Defendant reasoned that, because his license had been revoked continuously since 1991, it could not have been "re-revoked" for the DUI 10 years later. Thus, the revocation in effect as of October 18, 2008, was not for DUI but for the drug offense, so that defendant was guilty only of Class A misdemeanor DWLR. The trial court, without explanation, rejected this argument, held that defendant was guilty of aggravated DWLR, and sentenced him to six years' imprisonment. Defendant moved to reconsider the sentence, again arguing that he could not be convicted of aggravated DWLR as charged. The trial court denied the motion, and defendant timely appealed.

¶ 6 On appeal, defendant contends that the State proved only that he committed DWLR, not that he committed aggravated DWLR. Defendant relies on what he sees as the plain language of section 6-303(d-5) of the Code, as applied to the undisputed facts. He observes that, to obtain a conviction of aggravated DWLR as charged, the State had to prove that he had driven with a revoked license and that the revocation was for DUI. He notes that the evidence is undisputed that, as of October 18, 2008, his license had been revoked continuously since 1991 and that "the revocation" that made this so was based on a drug offense, not DUI. We agree with defendant.

¶ 7 The issue on appeal is primarily one of statutory construction, which raises questions of law that we review de novo. See In re Detention of Hardin, 238 Ill. 2d 33, 40 (2010). Our goal is to ascertain and effectuate the legislature's intent, which is best indicated by the language of the statute itself. Id. However, if a statute's language is unclear, we may resort to similar statutes or other sources to aid our inquiry. See People v. Masterson, 207 Ill. 2d 305, 329 (2003) (citing Mowen v. Holland, 336 Ill. App. 3d 368, 374 (2003)). One such source includes the maxim of in pari materia, under which two statutes, or two parts of one statute, concerning the same subject must be considered together to produce a " 'harmonious whole.' " People v. Rinehart, 2012 IL 111719, ¶ 26 (quoting Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992)).

¶ 8 Both parties agree that section 6-303(d-5) of the Code is not ambiguous, and we find no ambiguity. However, section 6-303(d-5) is silent as it pertains to multiple revocations. Therefore, we must look to other statutes in the Code to aid our inquiry. On October 18, 2008, defendant was cited for DWLR. The Code defines "revocation of driver's license" as "[t]he termination by formal action of the Secretary of a person's license or privilege to operate a motor vehicle on the public highways, which termination shall not be subject to renewal or restoration except that an application for a new license may be presented and acted upon by the Secretary after the expiration of at least one year after the date of revocation." 625 ILCS 5/1-176 (West 2008); see also People v. Suddoth, 52 Ill. App. 2d 355, 359 (1964) (defining "revocation"). A revoked license is terminated from the date of its revocation. Suddoth, 52 Ill. App. 2d at 358. In the present case, defendant's driver's license had been revoked, or terminated, since 1991.

¶ 9 Defendant's driving abstract reflects another revocation of the same license in 2001, based on his recent commission of DUI. However, a revoked driver's license remains revoked until a new license is issued. People v. Morrison, 149 Ill. App. 3d 282, 284 (1986). The Code does not provide any guidance or rules in circumstances, such as here, where the Secretary has imposed additional revocations of an individual's driver's license for additional offenses committed after the original revocation but where the driver has never applied for a new license or where the Secretary has never issued the driver a new license. Therefore, as applied to the facts of this case, the Secretary's 2001 formal administrative sanction of revocation had no effect because the Secretary had never issued defendant a new license.

¶ 10 Reading section 1-176 in conjunction with sections 6-205(a)(3) and 6-303(d-5) of the Code, the legislative intent becomes clear. Section 1-176 provides for only one revocation of an individual's driver's license. The reason for defendant's 1991 revocation was a drug offense, which triggered subsection (3) of section 6-205(a) of the Code, not subsection (2). Section 6-303(d-5) speaks of "the revocation or suspension" (emphasis added) (625 ILCS 5/6-303(d-5) (West 2008)), implying that there is only one pertinent triggering event. Therefore, the 1991 revocation of defendant's license to which section 6-303(d-5) refers was not based on a triggering event in section 6-303(d-5). Accordingly, the State proved that defendant committed only the offense of DWLR and not the offense of aggravated DWLR.

¶ 11 Our holding appears to place defendant in a better position than he would have been had his license not been revoked until 2001, after he committed DUI. However, we cannot escape the plain language and meaning of section 6-303(d-5), and, even if we could ignore the legislature's unambiguous command, it is far from clear that we could construe the statute liberally so as to reach a different conclusion. See People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 81 (2009) (stating that a cardinal rule of statutory construction prohibits courts from rewriting a statute and departing from its plain language by reading into it exceptions, limitations, or conditions not expressed by the legislature) (citing In re Michelle J., 209 Ill. 2d 428, 437 (2004)). The State might have been in a better position had the legislature used inclusive language in drafting section 6-303(d-5) of the Code, e.g., "any revocation," "if the violation was for," or words to that effect, but it apparently declined to do so, and we decline to rewrite the statute or read beyond the statute's plain language. To the extent that the plain meaning of section 6-303(d-5) creates a result that seems unsatisfactory or anomalous, it is up to the legislature to correct that problem.

¶ 12 We note that the trial court ruled that the State needed to prove the enhancing factor not at trial, but only at sentencing. Despite the trial court's ruling, section 6-303(d-5) creates an essential element of a distinct offense, aggravated DWLR. Our resolution of this appeal, however, obviates the need to address the propriety of that ruling. See People v. Campa, 217 Ill. 2d 243, 269-70 (2005) (reviewing court will not render an advisory opinion when it cannot result in appropriate relief to the prevailing party). Accordingly, we affirm defendant's conviction of operating an uninsured motor vehicle; reduce his conviction of aggravated DWLR to simple DWLR; and remand the cause for sentencing on the reduced conviction and on the insurance conviction (see People v. Frantz, 150 Ill. App. 3d 296, 300 (1986)).

¶ 13 Affirmed as modified; cause remanded.

¶ 14 JUSTICE BIRKETT, dissenting.

¶ 15 I respectfully dissent. The initial filing by the Office of the State Appellate Defender in this case was a motion to withdraw as counsel on appeal pursuant to Anders v. California, 386 U.S. 738 (1967). In his memorandum of law in support of his motion to withdraw, counsel argued that it would be frivolous to argue on appeal that defendant was not revoked for DUI in 2001 because, when he was convicted of DUI, he was already revoked for a non-DUI offense. I believe that the motion to withdraw should have been granted because, as I explain below, defendant's argument has no merit.

¶ 16 My colleagues point out that the trial court denied without comment defendant's oral motion to be sentenced for a misdemeanor. In fact, the trial court said that it had considered the motion. What my colleagues fail to acknowledge is that, in the trial court, defense counsel did not cite a single case for the proposition that someone whose privilege to drive has been revoked for one reason cannot have it rerevoked for another reason. He could not cite a case because there is no case anywhere in the country that supports this position. The indictment in this case alleged that defendant drove a motor vehicle upon a highway of this state "at a time when his driving privileges were revoked in violation of 625 ILCS 5/6-303 said revocation being for a violation of 625 ILCS 5/11-501." The trial court said at trial that it was a sentencing issue. During the sentencing hearing the court found defendant to be Class X eligible. Defense counsel filed a motion to reconsider on May 14, 2009. In the motion, defendant merely reasserted that he was "not revoked due to driving under the influence." Again, there was no authority cited.

¶ 17 The majority fails to distinguish cases cited in the State's brief, which I will address. Also, the majority claims that the Code does not provide any guidance or rules for a situation involving a person, like defendant, with multiple revocations who has never applied for or had issued to him a new license. I will demonstrate that just the opposite is true. Finally, the majority fails to apply the first rule of statutory construction, which is to give effect to the intent of the legislature. People v. Smith, 345 Ill. App. 3d 179, 184 (2004).

¶ 18 The majority appears to be stuck on the term "the revocation" in section 6-303(d-5) of the Code (625 ILCS 5/6-303(d-5) (West 2008)) and then applies section 1-176 of the Code (625 ILCS 5/1-176 (West 2008)), concluding that until a new license is issued there can be only one revocation. That narrow interpretation ignores the clear intent of the legislature and it is at odds with numerous provisions of the Code, only some of which I will discuss. It must be remembered that section 6-303(d-5) is a sentencing enhancement. People v. Nunez, 236 Ill. 2d 488, 499 (2010). The State was required to identify "the revocation" in the indictment, along with the requisite number of convictions. The certified abstract introduced into evidence established the DUI revocation and the convictions. Defendant never challenged the abstract's accuracy. In the absence of such a challenge, the abstract's contents are deemed accurate. People v. Meadows, 371 Ill. App. 3d 259, 263 (2007).

¶ 19 The majority acknowledges that the Illinois Secretary of State entered a mandatory order of revocation on his driving record on October 11, 2001 as a result of his August 22, 2001, conviction of DUI (625 ILCS 5/6-205(a)(2) (West 2000)). The abstract reflects that this revocation remained in effect at the time of the instant offenses. Defendant argues that, despite these facts, the unambiguous language of the enhanced sentencing provision of section 6-303(d-5) of the Code (625 ILCS 5/6-303(d-5) (West 2008)) does not apply to him, because the term "the revocation" as used in the provision refers to a single revocation, and, since defendant's driver's license had been revoked for a non-DUI offense at the time of his October 11, 2001, DUI revocation, "there was no driver's license to revoke." Defendant reasons that the statute cannot refer to multiple revocations, because that is "only possible if a revoked driver's license can subsequently be revoked." Alternatively, defendant argues that, if the term "the revocation" as used in section 6-303(d-5) of the Code is ambiguous, the rule of lenity mandates a finding that the enhanced sentencing provision does not apply to him and that his conviction should be modified to misdemeanor DWLR and that he should be sentenced accordingly. Id.

¶ 20 The State agrees with defendant's contention that the language of section 6-303(d-5) of the Code is unambiguous. Id. However, the State contends that the plain language of subsection (d-5) does not support defendant's view. The State, relying on People v. Kennedy, 372 Ill. App. 3d 306 (2007), argues that "the construction of section 6-303(d-5) urged by the defendant revises the plain language of the statute to include a limitation not expressed by the legislature and would defeat the legislative intent, which is to punish those who repeatedly violate section 6-303 more severely."

¶ 21 Defendant's novel argument fails upon review of the overall statutory scheme and relevant case law. When interpreting a statute, our primary objective is to ascertain and give effect to the legislature's intent. People v. Zimmerman, 239 Ill. 2d 491, 497 (2010). Our first step is to examine the language of the statute, which is "the surest and most reliable indicator of legislative intent." People v. Pullen, 192 Ill. 2d 36, 42 (2000). If a statute does not provide a definition indicating a contrary legislative intent, words in the statute are interpreted according to their plain and ordinary meanings. People v. Liberman, 228 Ill. App. 3d 639, 648 (1992). When the language of a statute is clear, it may not be revised to include exceptions, limitations, or conditions that were not expressed by the legislature. People v. Goins, 119 Ill. 2d 259, 265 (1988). The majority ignores our responsibility to construe the statute as a whole so that no part is rendered meaningless or superfluous. See People v. McClure, 218 Ill. 2d 375, 382 (2006). We are required to construe the statute by interpreting words and phrases in light of other relevant provisions in the statute. The majority completely fails to consider the law's purpose, the evils sought to be remedied, and the consequences that would result from construing the statute one way or another. Zimmerman, 239 Ill. 2d at 497. "[W]hen the literal construction of a statute would lead to consequences which the legislature could not have contemplated, the courts are not bound to that construction." People v. Hanna, 207 Ill. 2d 486, 498 (2003).

¶ 22 "When determining the legislative intent of the criminal penalties associated with driving offenses as they relate to driver's license status, our courts have read the licensing provisions together with the penalty provisions." People v. Rosenbalm, 2011 IL App (2d) 100243, ¶ 8; see People v. Sass, 144 Ill. App. 3d 163, 169 (1986); People v. Manikas, 106 Ill. App. 2d 315, 319-20 (1969). Where a statute is amended, striking words, it is to be concluded that the legislature deliberately intended to change the law. People v. Bradley M., 352 Ill. App. 3d 291, 296 (2004). It should also be presumed that an amendment is made for some purpose, and effect must be given to the amendment in a manner consistent with that purpose. Id. We also consider the regulations that guide the return of driving privileges following revocation. These regulations are promulgated by the Secretary of State and have the force and effect of law. Youle v. Edgar, 172 Ill. App. 3d 498, 503-04 (1988).

¶ 23 It is abundantly clear that when he was arrested for DWLR defendant's privilege to drive a motor vehicle was revoked for having been convicted of DUI. The analysis should begin with the language of section 6-303(a) of the Code (the offense language) and section 6-303(d-5) of the Code (the felony enhancement factor). 625 ILCS 5/6-303(a), (d-5) (West 2008). Those sections provide, in pertinent part:

"ยง 6-303. Driving while driver's license, permit or privilege to operate a motor vehicle ...

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