THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHE BLAIR, a/k/a CHE’R BLAIR, Defendant-Appellant.
Nos. 4-13-0307, 4-13-0308 cons.
Appellate Court of Illinois, Fourth District
June 30, 2015
2015 IL App (4th) 130307
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.
Appeal from the Circuit Court of Sangamon County, Nos. 12-CF-542, 12-CF-543; the Hon. Peter C. Cavanagh, Judge, presiding. Judgment Affirmed.
Counsel on Appeal
John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
¶ 1 In January 2013, defendant, Che Blair, a/k/a Che’r Blair, entered an open guilty plea to the Class 4 offense of driving while license suspended or revoked (
¶ 2 In this consolidated appeal, defendant asserts that (1) his convictions should be reduced to Class A misdemeanors because the evidence was insufficient to support his Class 3 and Class 4 felony convictions where his driver’s license had already been revoked at the time of the statutory summary suspension; (2) his 7-year sentence in case No. 12-CF-543 is excessive; and (3) he is entitled to an additional 249 days of sentencing credit in case No. 12-CF-543 for time served in an unrelated case.
I. BACKGROUND
¶ 4 On June 26, 2012–while defendant was in custody on an unrelated charge–the State charged defendant by complaint with the Class 3 felony offense of driving while license suspended or revoked (
¶ 5 On January 8, 2013, defendant entered an open plea of guilty to driving while license suspended or revoked in Sangamon County case No. 12-CF-542. As part of the agreement, the State announced in court that it amended the information to reflect the charge was a Class 4 felony (
¶ 6 On March 5, 2013, defendant’s jury trial for the Class 3 felony offense of driving while license suspended or revoked in Sangamon County case No. 12-CF-543 commenced.
¶ 7 Jeffrey Coker, a Springfield police officer, testified that at approximately 3 a.m. on March 17, 2012, he was on patrol when he noticed a red Ford Crown Victoria driving without its headlights. Coker initiated a traffic stop and identified defendant as the driver of the vehicle. After determining that defendant’s driver’s license was revoked, he issued defendant citations for driving while license revoked and driving without headlights.
¶ 8 Christopher Bax, a court liaison with the Secretary of State’s office, testified regarding defendant’s driving abstract, which was admitted into evidence. Bax testified that defendant was issued a statutory summary suspension after he was stopped for driving under the influence of alcohol (DUI) on January 22, 2007, and that on March 17, 2012, defendant’s driver’s license was suspended, “at least in
¶ 9 Defendant testified on his own behalf and admitted that he was driving on March 17, 2012, at a time when he knew he did not have a valid driver’s license.
¶ 10 At the close of evidence, defendant was found guilty of driving while license suspended or revoked.
¶ 11 On March 6, 2013, defendant filed a motion for acquittal or, in the alternative, a motion for a new trial in case No. 12-CF-543. On March 19, 2013, the trial court denied defendant’s motion and proceeded to sentencing in both cases. The court sentenced defendant to concurrent prison terms of seven years in case No. 12-CF-543 and three years in case No. 12-CF-542. Defendant was awarded 16 days of sentence credit for the period from March 4, 2013, through March 19, 2013. On March 20, 2013, defendant filed a motion to reconsider his sentence in both cases, which the court denied on April 11, 2013. Also on April 11, 2013, the court denied defendant’s motion to withdraw his guilty plea in case No. 12-CF-542. On May 2, 2013, defendant filed a motion to amend the sentencing judgment, asserting that he was entitled to a total of 266 days of credit for time served in custody for the period of June 19, 2012, through March 19, 2013. Defendant’s motion to amend the sentencing judgment was filed after his April 18, 2013, notice of appeal and was not ruled on in the trial court.
¶ 12 This appeal followed.
II. ANALYSIS
¶ 14 In this consolidated appeal, defendant asserts that (1) his convictions should be reduced to Class A misdemeanors because the evidence was insufficient to support his Class 3 and Class 4 felony convictions where his driver’s license had already been revoked at the time he was assessed a statutory summary suspension; (2) his 7-year sentence in case No. 12-CF-543 is excessive; and (3) he is entitled to an additional 249 days of sentencing credit in case No. 12-CF-543 for time spent in custody in an unrelated case.
A. Sufficiency of the Evidence
¶ 16 Defendant first asserts that his Class 3 and Class 4 felony convictions for driving while license suspended or revoked should be reduced to Class A misdemeanors (see
¶ 17 Resolution of this issue requires us to determine whether the statute under which defendant was convicted allows for a statutory summary suspension to be assessed
¶ 18 The statutes under which defendant was convicted provide, in relevant part, as follows:
“Any person convicted of a fourth, fifth, sixth, seventh, eighth, or ninth violation of this Section is guilty of a Class 4 felony and must serve a minimum term of imprisonment of 180 days if the revocation or suspension for a violation of Section 11-401 or 11-501 of this Code, *** or a statutory summary suspension or revocation under Section 11-501.1 of this Code.”
625 ILCS 5/6-303(d-3) (West 2010).“Any person convicted of a tenth, eleventh, twelfth, thirteenth, or fourteenth violation of this Section is guilty of a Class 3 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 statutory summary suspension or revocation under Section 11-501.1 of this Code.”
625 ILCS 5/6-303(d-4) (West 2010).
¶ 19 Initially, we note the State argues defendant cannot challenge the legal sufficiency of the evidence against him in case No. 12-CF-542 because he pleaded guilty. See People v. Hunter, 331 Ill. App. 3d 1017, 1025, 772 N.E.2d 380, 386-87 (2002) (a defendant may not question the legal sufficiency of the evidence against him following a guilty plea). Defendant counters that “both he and his attorney made it clear that [he] was only pleading guilty to driving, not to the sentencing enhancement.” To support his contention, defendant points to discussions that occurred with the trial court on February 19, 2013. However, our review of the transcript from defendant’s open guilty plea on January 8, 2013, reveals that defendant pleaded guilty with full knowledge he was pleading guilty to a Class 4 felony. Although initially charged as a Class 3 felony, the State amended the information prior to defendant’s guilty plea. The February 19, 2013, discussions cited by defendant mainly concerned a proposed negotiated agreement in case No. 12-CF-543–a case in which defendant eventually proceeded to trial after the court ruled a conviction would subject defendant to Class 3 felony penalties. Based on the above, defendant clearly pleaded guilty to the Class 4 felony offense of driving while license suspended or revoked in case No. 12-CF-542.
¶ 20 Defendant next contends that if he did plead guilty to the enhanced offense, the sentence was void and therefore may be challenged at any time. According to defendant, the sentence was void “because his suspension or revocation was not issued pursuant to a DUI or statutory summary suspension.” Whether the sentence was authorized and valid depends on whether the statutory summary suspension
¶ 21 Defendant relies heavily on Heritsch, a Second District case which is factually similar to this case. In Heritsch, the defendant was convicted of aggravated driving with a revoked or suspended license (
¶ 22 Justice Birkett dissented from the Heritsch majority. In his opinion, the majority’s interpretation of “the revocation” language in section 6-303(d-5) of the Illinois Vehicle Code (Code) (
¶ 23 In Smith, 2013 IL App (2d) 121164, 999 N.E.2d 809, the Second District was faced with a similar issue as was presented in Heritsch. The Smith defendant was charged with driving while license suspended (
¶ 24 The Smith court observed that the question before it was one of statutory
¶ 25 Relying on these principles, the Smith court noted as follows:
“If the statutory definition of ‘revocation’–the ‘termination *** of a person’s license or privilege to operate a motor vehicle’ (emphasis added) (
625 ILCS 5/1-176 (West 2012))–is given its most literal meaning, the argument that revocation is a singular occurrence might appear to be an ontological truism: after one’s license or privilege to operate a vehicle is terminated, it no longer exists and therefore cannot again be terminated. By the same logic, a revoked license could not be suspended either. It is reasonably clear from examination of the Code as a whole, however, that the General Assembly did not intend for the term ‘revocation’ to be read so literally. To the contrary, ‘revocation’ appears to be used, in part, as a term of art that refers to a formal act of the Secretary and its attendant legal consequences. Thus, section 6-205(a) places no express limitation on the number of times the Secretary may revoke a driver’s license. Nor does section 6-205(a) expressly limit revocation to cases where no prior revocation is in effect.” Id. ¶ 11, 999 N.E.2d 809.
¶ 26 The Smith court found support for its conclusion that a revocation of a driver’s license does not preclude future revocations or suspensions of the same license in other sections of the Code, noting terms and phrases which would be rendered superfluous or meaningless if revocation was considered a singular occurrence (see
¶ 27 In People v. Webber, 2014 IL App (2d) 130101, 11 N.E.3d 890,
¶ 28 The Smith and Webber courts noted that during the pendency of the respective appeals before them, the General Assembly amended section 6-303 of the Code, adding subsection (a-10), which provides as follows:
“A person’s driver’s license, permit, or privilege to obtain a driver’s license or permit may be subject to multiple revocations, multiple suspensions, or any combination of both simultaneously. No revocation or suspension shall serve to negate, invalidate, cancel, postpone, or in any way lessen the effect of any other revocation or suspension entered prior or subsequent to any other revocation or suspension.” Pub. Act 98-418, § 5 (eff. Aug. 16, 2013); Pub. Act 98-573, § 5 (eff. Aug. 27, 2013).
See Webber, 2014 IL App (2d) 130101, ¶ 12, 11 N.E.3d 890; Smith, 2013 IL App (2d) 121164, ¶ 17, 999 N.E.2d 809.
¶ 29 Both courts determined that the General Assembly crafted the amendment to clarify its intent regarding the former version of the statute and to repudiate the interpretation of the statute adopted by the Heritsch majority. Id.; Webber, 2014 IL App (2d) 130101, ¶ 13, 11 N.E.3d 890. “ ‘An amendment, which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act, where the amendment was adopted soon after the controversy arose concerning the proper interpretation of the statute.’ ” In re Detention of Lieberman, 201 Ill. 2d 300, 323, 776 N.E.2d 218, 231 (2002) (quoting 1A Norman J. Singer, Sutherland on Statutory Construction § 22.31, at 379-80 (6th ed. 2000)).
¶ 30 In light of the General Assembly’s declaration of the meaning of the former act, we agree with the Smith and Webber courts’ interpretation of section 6-303 of the Code as the law existed at the time of the subject offenses, and we specifically find the prior revocation of defendant’s driving privileges did not render his subsequent statutory summary suspension a nullity for purposes of the enhanced driving while license suspended or revoked charges. Accordingly, we conclude that the evidence was sufficient to support defendant’s Class 3 and Class 4 felony convictions where his driving abstract reveals that his driver’s license was under a statutory summary suspension at the time of
B. Excessive Sentence
¶ 32 Defendant next asserts that his seven-year sentence in case No. 12-CF-543 is excessive.
¶ 33 In imposing sentence, the Illinois Constitution requires the trial court to balance the defendant’s potential for rehabilitation with the seriousness of the offense.
“A reasoned sentence must be based on the particular circumstances of each case.” Id. We afford great deference to the trial court’s sentencing judgment “[b]ecause of the trial court’s opportunity to assess a defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age.” Id. We review a trial court’s sentencing decision for an abuse of discretion. Id. “An abuse of discretion may be found even if the sentence is within the statutory limitations if the sentence is greatly at variance with the purpose and spirit of the law.” People v. Kenton, 377 Ill. App. 3d 239, 245, 879 N.E.2d 402, 407 (2007).
¶ 34 According to defendant, the trial court’s decision to sentence him to seven years in prison in case No. 12-CF-543 cannot be reconciled with the factors a trial court must consider in sentencing a defendant. Citing People v. Calhoun, 404 Ill. App. 3d 362, 389, 935 N.E.2d 663, 686 (2010), defendant notes that the seriousness of the crime is the single most important factor in fashioning an appropriate sentence. Defendant concludes–without argument or citation to authority–that his offense was not of such a serious nature as to justify a seven-year prison sentence. Defendant then cites a number of mitigating factors which, in his opinion, should have been given more weight by the court, including the following: (1) he did not intend to threaten or cause harm to anyone; (2) he drove only because his two companions were too intoxicated to drive; and (3) his incarceration creates an excessive hardship on his two small children. See
¶ 35 A Class 3 felony normally carries a sentencing range of 2 to 5 years; however, due to defendant’s criminal history, he was eligible for an extended-term sentence ranging from 5 to 10 years.
¶ 36 Prior to imposing sentence, the trial court indicated it had considered the arguments of the parties, the testimony, defendant’s driving abstract, defendant’s statement in allocution, as well as “the factors of aggravation and mitigation that apply in
¶ 37 Based on the above, we find that the trial court properly considered the relevant sentencing factors in this case. Therefore, the court did not abuse its discretion in sentencing defendant to seven years in prison in case No. 12-CF-543.
¶ 38 Defendant also asserts the trial court erroneously considered his prior convictions for driving with a revoked or suspended license in sentencing him at the upper end of the sentencing range because those same convictions served as the basis to elevate the instant offense in case No. 12-CF-543 to a Class 3 felony. However, as pointed out by the State, defendant did not raise this claim in his motion to reconsider the sentence, and thus, he has forfeited it. People v. Harris, 366 Ill. App. 3d 1161, 1164, 853 N.E.2d 912, 915 (2006). Even if the issue was not so forfeited, our review of the record does not support defendant’s contention. In sentencing defendant, the court stated, “with a criminal record such as this, the Court has to sentence you appropriately,” but it did not go on to specifically identify any prior offenses. Given that defendant’s criminal record included multiple offenses unrelated to driving, his argument is without merit.
C. Sentencing Credit
¶ 40 Last, defendant contends that he is entitled to an additional 249 days of sentencing credit in case No. 12-CF-543 for the time spent in custody following his arrest in an unrelated case. The State disagrees, asserting that the trial court ordered a recognizance bond in the instant case on June 26, 2012, and that the bond was neither surrendered nor revoked until March 5, 2013. Although the State stipulates that defendant was taken into custody on June 19, 2012, for an unrelated offense and remained in custody through sentencing in the instant case, it asserts that defendant is only entitled to the 16 days of credit he was awarded by the trial court. In the alternative, defendant asserts that his trial counsel was ineffective for failing to move to withdraw his bond in the instant case.
¶ 41 Section 5-4.5-100(b) of the Unified Code of Corrections (
¶ 42 Here, defendant was already in custody on an unrelated matter on June 26, 2012, the date he was charged with the instant offense. On June 26, 2012, the trial court ordered a $5,000 recognizance bond on each of the driving while license suspended charges and informed defendant, “[y]ou will not be held in custody on these cases.” The bond was eventually revoked at the State’s request on March 5, 2013, following defendant’s conviction.
1. Effect of the Recognizance Bond
¶ 44 In People v. Arnhold, 115 Ill. 2d 379, 383, 504 N.E.2d 100, 101 (1987), the Illinois Supreme Court concluded that “a defendant who is out on bond on one charge, and who is subsequently
2. Ineffective Assistance of Counsel Claim
¶ 46 Defendant argues in the alternative that his trial counsel was ineffective for failing to promptly move to withdraw his bond so that he would receive simultaneous sentence credit. Defendant cites People v. DuPree, 353 Ill. App. 3d 1037, 820 N.E.2d 560 (2004), and People v. Centeno, 394 Ill. App. 3d 710, 916 N.E.2d 70 (2009), for the proposition that “there is no reason for counsel failing to withdraw bond in the instant case.” In DuPree, the Fifth District concluded that counsel should have moved to withdraw the bond posted in order to allow the defendant to earn simultaneous credit. DuPree, 353 Ill. App. 3d at 1049, 820 N.E.2d at 570. Likewise, in Centeno, the Third District majority noted that “[h]ad [the defendant] received effective assistance, counsel would have moved to surrender the defendant in exoneration of his bond.” Centeno, 394 Ill. App. 3d at 714, 916 N.E.2d at 73. Justice Schmidt dissented, noting that defendant’s ineffective assistance of counsel claim was not supported by the record where the record was silent regarding defendant’s or counsel’s positions on whether to seek exoneration of the bond, and he opined that defendant’s claim would be more appropriately addressed in a postconviction petition, where a sufficient record could be developed. Id. at 715, 916 N.E.2d at 74 (Schmidt, J., dissenting).
¶ 47 Although we can identify no apparent reason in the record for trial counsel’s failure to withdraw defendant’s bond in the instant case, the lack of such evidence does not foreclose the possibility that counsel had a legitimate reason for not withdrawing defendant’s bond. Thus, we decline to rule on defendant’s ineffective assistance of counsel claim as it would be better brought under the Post-Conviction Hearing Act (
III. CONCLUSION
¶ 49 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 50 Affirmed.