THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE M. OWENS, Defendant-Appellant.
NO. 4-14-0090
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
August 2, 2016
2016 IL App (4th) 140090
JUSTICE POPE delivered the judgment of the court, with opinion.
Presiding Justice Knecht concurred in the judgment and opinion.
Justice Appleton dissented, with opinion.
OPINION
¶ 1 In July 2013, a jury convicted defendant, Andre M. Owens, of driving while his driver‘s license was revoked (
¶ 2 Defendant appeals, arguing his felony conviction must be reduced to a Class A misdemeanor because the State failed to prove the reason for his license revocation beyond a reasonable doubt at trial in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In the alternative, defendant argues the State failed to establish the reason his license was revoked at sentencing. We affirm.
I. BACKGROUND
¶ 3 ¶ 4 On July 11, 2012, the State charged defendant by information with driving while his driver‘s license was revoked, a Class 4 felony (
¶ 5 Prior to trial, defendant filed a motion in limine, arguing, pursuant to Apprendi, to increase the offense of driving with a revoked or suspended license from a Class A misdemeanor (see
¶ 6 During the July 25, 2013, hearing on defendant‘s motion in limine, defendant reiterated the arguments found in his motion. For its part, the State cited a number of cases and argued case law showed felony enhancement was an issue for sentencing and not an element to be proved to the jury. After hearing arguments, the trial court disagreed with defendant‘s interpretation of the case law and denied his motion.
¶ 7 During the trial, Dustin Morgan, a Rantoul police officer, testified he was parked at a four-way intersection in Champaign County on June 11, 2012, around 6:55 p.m., when a vehicle drove by, traveling 31 miles per hour. The speed limit in that area was 20 miles per hour. Morgan followed the car into a driveway. As the driver, whom Morgan identified in court as defendant, was getting out of the car, Morgan rolled down his window and told him, ” ‘[H]ey, I need to talk to you for a minute.’ ” Defendant held up his hand and said, ” ‘[J]ust a minute.’ ” Defendant then shut the car door and sprinted away from the car. Morgan eventually caught up to defendant and asked him, ” ‘[W]hat did you run for?’ ” Defendant replied, ” ‘because I don‘t have a license.’ ”
¶ 8 Defendant then identified himself to Morgan as Andre Owens. Morgan had the dispatcher send him a photograph of defendant to confirm his identity. Because the database indicated defendant‘s driver‘s license had been revoked, Morgan issued him a citation for driving with a revoked license.
¶ 9 Morgan identified People‘s exhibit No. 1 as an abstract of defendant‘s driver‘s license. He testified, according to this
¶ 10 At that point, defendant moved for a directed verdict. Defendant argued, according to his “complete driving abstract” (which he attached to the motion in limine), the Secretary of State revoked his driver‘s license on December 28, 2002, for driving without a valid license or permit, and later, on August 17, 2007, it purported to again revoke defendant‘s driver‘s license, this time “for a DUI offense,” even though the Secretary never had reinstated the license in the interim. Defendant, citing People v. Heritsch, 2012 IL App (2d) 090719, ¶ 9, 972 N.E.2d 305, maintained the August 17, 2007, revocation “ultimately didn‘t have any effect, because [defendant‘s] license was already revoked.”
¶ 11 Defendant also argued, under Apprendi, a revocation for DUI was a fact, other than a previous conviction, that “increased the maximum possible penalty faced by [defendant],” and thus, the revocation for DUI had to be proved, beyond a reasonable doubt, to a jury, which defendant argued the State had not done. According to defendant, “the evidence the People have put on *** has not in any way indicated what the basis for [the] revocation is, and so we would move that the court enter a directed verdict of not guilty on behalf of [defendant].”
¶ 12 In response, the State reiterated its argument the reason for the prior revocation, DUI, was something that should be proved in the sentencing hearing, not during the jury trial. Specifically, the State argued, “these are issues that were discussed during the motions in limine this morning such that the People do not have to prove the underlying DUI conviction. Such things are, these are felony enhancements for sentencing. All we have to prove is that he was driving on the public highways of Champaign County at a time when his license was revoked.”
¶ 13 In denying defendant‘s motion for a directed verdict, the trial court found Heritsch distinguishable and was unconvinced a “status” or an “administrative decision” had to be proved to a jury under Apprendi.
¶ 14 Defendant rested without presenting any evidence.
¶ 15 Thereafter, the jury convicted defendant of driving while his license was revoked.
¶ 16 During the October 2013 sentencing hearing, the State requested a six-year sentence. Defendant‘s attorney asked for a one-year sentence. The presentence investigation report (PSI) showed an extensive criminal history starting in 1997, which included repeated instances of DUI, driving with a suspended license, and driving with a revoked license. The PSI also reflected multiple felony convictions for drugs and battery. Defendant presented a statement in allocution and asked for “just one more chance.”
¶ 17 In sentencing defendant to 18 months’ imprisonment, the trial court stated the following:
“I‘ve heard the statement in allocution, considered the arguments and evidence in this case, and I note from the [PSI] report and addendum thereto that there will be an extensive record of violent offenses, drug offenses, and traffic offenses of the defendant. This being the seventh driving under suspension and revocation case of the defendant, I have already ruled that it is a Class 4 felony.”
¶ 19 Following a January 31, 2014, hearing, the trial court denied defendant‘s posttrial motions.
¶ 20 Thereafter, defendant timely filed his notice of appeal. On August 24, 2015, defendant‘s appellate counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), which this court denied. (We note defendant has since served his sentence and period of mandatory supervised release.)
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant argues the State failed to (1) prove the reason for his license revocation beyond a reasonable doubt at trial in violation of Apprendi and, in the alternative, (2) sufficiently prove the reason for the revocation at sentencing.
¶ 24 A. Effect of Prior Revocation
¶ 25 As an initial matter, we note defendant previously argued the 2007 revocation of his license was ineffective because his license was originally revoked in December 2002 and has never been reinstated. Defendant maintained because his license had never been reinstated, the Secretary of State‘s subsequent suspensions or revocations had no effect. Because defendant included this issue in the factual background of his brief, we address the issue in the context of defendant‘s larger appeal. In support of his position in the trial court, defendant cited the Second District‘s decision in Heritsch, 2012 IL App (2d) 090719, ¶ 9 (finding the Secretary‘s 2001 formal administrative sanction of revocation had no effect where the defendant‘s license had been revoked in 1991 and he never applied for a new license because there was no license that could be revoked when he committed DUI in 2001). Defendant also cites Heritsch in his brief on appeal.
¶ 26 However, Heritsch has since been disavowed by two subsequent Second District decisions, as well as decisions by other districts, including ours. See People v. Smith, 2013 IL App (2d) 121164, ¶ 6, 999 N.E.2d 809 (Second District concluding the holding in Heritsch was incorrect); People v. Webber, 2014 IL App (2d) 130101, ¶ 14, 11 N.E.2d 890 (Second District agreeing with the Smith decision and declining to follow Heritsch); People v. Blair, 2015 IL App (4th) 130307, ¶ 30, 44 N.E.3d 1073 (Fourth District discussing Heritsch and agreeing with Smith and Webber); People v. Viverette, 2016 IL App (1st) 122954, ¶ 18 (First District adopting the reasoning of Smith and Webber).
¶ 27 Moreover, the General Assembly amended section 6-303 of the Vehicle Code following the Heritsch decision, adding subsection (a-10), which specifically provides for multiple revocations even at a time when a person‘s driver‘s license had already been revoked.
¶ 28 B. Defendant‘s Apprendi Claim
¶ 29 Defendant argues his felony conviction must be reduced to a Class A misdemeanor because the State failed to prove the reason for his license revocation beyond a reasonable doubt at trial in violation of Apprendi. Whether an Apprendi violation occurred is a question of law, which we review de novo. People v. Daniel, 2014 IL App (1st) 121171, ¶ 66, 12 N.E.3d 715.
¶ 30 In Apprendi, the Supreme Court held, “[o]ther 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.” Apprendi, 530 U.S. at 490. The Illinois legislature has since codified the Apprendi rule in section 111-3(c-5) of the Code of Criminal Procedure of 1963 (Procedure Code) (
“Notwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be
included in the charging instrument ***, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt. Failure to prove the fact beyond a reasonable doubt is not a bar to a conviction for commission of the offense, but is a bar to increasing, based on that fact, the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for that offense.” (Emphasis added.)
725 ILCS 5/111-3(c-5) (West 2012).
¶ 31 Section 111-3(c) of the Procedure Code explicitly provides, when the State seeks to enhance a defendant‘s sentence based on a prior conviction, “the fact of such prior conviction” is not an element of the offense and “may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial.”
¶ 32 A person commits the offense of driving with a revoked license when he “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 or privilege to do so *** is revoked or suspended as provided by this Code or the law of another state.”
However, driving with a revoked license is a Class 4 felony when a person
¶ 33 Generally, where a statute initially sets forth the elements of an offense and separately provides sentencing classifications based on other factors, the enhancing factors do not create a new offense but serve only to enhance the punishment. People v. Van Schoyck, 232 Ill. 2d 330, 337, 904 N.E.2d 29, 33 (2009). Despite defendant‘s argument to the contrary, however, Illinois courts have found the State is not required to prove, as an element of a defendant‘s enhanced driving with a revoked license offense, the fact that the original revocation of his license was predicated on a DUI conviction.
¶ 34 In People v. Lucas, 231 Ill. 2d 169, 180-81, 897 N.E.2d 778, 785 (2008), our supreme court discussed the interplay between section 6-303(d) of the Vehicle Code and section 111-3(c) of the Procedure Code as follows:
“[S]ection 6-303(d) of the Vehicle Code, read together with section 111-3(c) of the Procedure Code, provides the basis for enhanced sentencing of defendants who commit driving while license revoked, subsequent offense. Neither section 111-3(c) nor section 6-303(d) operates independently. Section 111-3(c) sets forth the procedure that must be followed where the State seeks a more severe sentence due to a defendant‘s prior convictions. Section 6-
303(d) is the substantive provision that allows the State to seek the enhanced sentencing. We note that the legislature amended section 111-3 in 1989 to add subsection (c). Pub. Act 86-964, § 1, eff. July 1, 1990. Prior to this amendment, a defendant‘s prior convictions for driving while license revoked and driving under the influence of alcohol were elements of the felony offense of driving while license revoked, subsequent offense. See People v. Roby, 172 Ill. App. 3d 1060, 1062 (1988) (noting that a prior driving under the influence of alcohol offense, which results in the revocation of a person‘s license, is an element of driving while license revoked, subsequent offense, and the trial court must instruct the jury as to all the elements of the offense charged). Now, with the addition of subsection (c), it is clear that the prior convictions are not elements of the offense that the State must prove to the trier of fact.” (Emphasis added.)
¶ 35 In People v. DiPace, 354 Ill. App 3d 104, 115, 818 N.E.2d 774, 785 (2004), the Second District concluded the State was not required to show the defendant‘s prior convictions or the grounds for those prior convictions until sentencing. In that case, the defendant was convicted of a Class 4 felony (driving while revoked) because he drove with a revoked license, his license was revoked for DUI, and he had previously been convicted of driving with a revoked license. DiPace, 354 Ill. App. 3d at 114, 818 N.E.2d at 784. The Second District rejected the defendant‘s argument the State was required to prove, as an element of his crime, his license was
revoked for DUI. DiPace, 354 Ill. App. 3d at 115, 818 N.E.2d at 784-85. In reaching its conclusion, the court reasoned requiring the State to prove the grounds for the revocation of a defendant‘s license at trial would effectively require the State to prove a prior conviction as an
¶ 36 We note, although DiPace does not discuss Apprendi directly, based on its finding proof of the grounds for a revocation effectively requires the State to prove a prior conviction, it answers the Apprendi issue in the negative, i.e., because the statute effectively requires proof of a prior conviction when showing the basis for a revocation, Apprendi is not violated by omitting proof of such at trial.
¶ 37 Likewise, in People v. Thompson, 328 Ill. App. 3d 360, 361, 765 N.E.2d 1209, 1210 (2002), the defendant challenged his conviction for aggravated DUI under Apprendi when no evidence of his two prior DUI offenses was presented at trial, but only at sentencing. The defendant argued if the two prior commissions of DUI need not be considered by the trier of fact as elements of aggravated DUI, then the statute was unconstitutional under Apprendi. Thompson, 328 Ill. App. 3d at 363-64, 765 N.E.2d at 1212. The Second District rejected this argument as placing form over substance, concluding the defendant‘s prior offenses must be considered the “functional equivalents of prior convictions” under the recidivist exception of Apprendi. Thompson, 328 Ill. App. 3d at 364, 765 N.E.2d at 1212. As such, “[t]hey are not elements of the crime that needed to be proved to the trier of fact beyond a reasonable doubt. Rather, they are
factors in aggravation that had to be proved at sentencing.” Thompson, 328 Ill. App. 3d at 365, 765 N.E.2d at 1213.
¶ 38 Finally, in People v. Braman, 327 Ill. App. 3d 1091, 1092, 765 N.E.2d 500, 502 (2002), the Third District interpreted the aggravated DUI statute in the context of a situation where the aggravation was based on the defendant committing (not being “convicted of“) a violation of the DUI statute for the third or subsequent time. The court found the aggravated DUI terminology referred to an enhanced sentence and the prior violations were not elements of the offense. Braman, 327 Ill. App. 3d at 1094, 765 N.E.2d at 503. The court then determined Apprendi does not apply when a defendant receives an enhanced sentence due to prior convictions, calling the statute a clearly “recidivist” statute designed to enhance punishment for repeat offenders. Braman, 327 Ill. App. 3d at 1094, 765 N.E.2d at 503.
¶ 39 Thus, as discussed above, the plain language of section 111-3(c) of the Procedure Code, as well as the current state of Illinois case law, provide the State is not required to prove to the jury, as an element of a defendant‘s felony driving while revoked offense, the fact the original revocation of his license was predicated on a DUI conviction. That is exactly the situation the instant case presents. As such, we see no principled basis for departing from prior precedent. While defendant maintains the reason for the revocation is something other than a conviction for Apprendi purposes, that argument places form over substance and amounts to a distinction without a difference. See Thompson, 328 Ill. App. 3d at 364, 765 N.E.2d at 1212. Moreover, defendant does not cite a single case supporting the proposition he advances. A revocation based on a DUI is the functional equivalent of a prior conviction for purposes
Ill. App. 3d at 364, 765 N.E.2d at 1212. Instead, it is reserved for sentencing. A finding to the contrary would contravene the plain language of section 111-3(c) and approximately 25 years of case law. Accordingly, the trial court did not err in finding the State was not required to prove the reason underlying the revocation beyond a reasonable doubt to the jury.
¶ 40 C. Defendant‘s Sentencing Claim
¶ 41 Defendant also argues, in the alterative, the State failed to adequately establish his license was revoked for DUI at sentencing. We disagree.
¶ 42 “A court properly may consider a [PSI] to determine a defendant‘s criminal record; such a report is a reliable source for the purpose of inquiring into a defendant‘s criminal history.” DiPace, 354 Ill. App. 3d at 115, 818 N.E.2d at 785 (citing People v. Williams, 149 Ill. 2d 467, 491, 599 N.E.2d 913, 924 (1992)).
¶ 43 In this case, the PSI reflects defendant‘s prior DUI convictions and does not show his license was ever reinstated following those convictions. In fact, during the sentencing hearing, defendant‘s trial counsel conceded, “nowhere in the [PSI] does it indicate [defendant‘s] license was reinstated.” Indeed, a review of the PSI reveals a 2007 mandatory revocation of defendant‘s license following DUI convictions in 2006 and 2007. The license revocation was extended in 2008 and never reinstated. Defendant‘s instant offense occurred in 2012. It is undisputed defendant‘s license remained revoked at that time. As such, it was reasonable for the trial court to infer his license continued to be revoked for DUI at the time of the instant offense. The trial court did not err in enhancing defendant‘s sentence to a Class 4 felony based on his prior criminal history.
III. CONCLUSION
¶ 44 ¶ 45 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.
¶ 46 Affirmed.
¶ 47 JUSTICE APPLETON, dissenting:
¶ 48 I respectfully dissent from the majority‘s decision because the State failed to present any evidence to the jury that the revocation of defendant‘s driver‘s license was for DUI. This was a sentence-enhancing fact in section 6-303(d-3) of the Vehicle Code (
¶ 49 The statute under which defendant was sentenced, section 6-303(d-3), required proof of two facts. The first fact was that he had three or more prior convictions of driving while his driver‘s license was revoked. See
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.))). It also is undisputed that the State adequately proved these prior convictions to the sentencing judge.
¶ 50 But there was a second fact in section 6-303(d-3), which, unlike the first fact, had to be proved to the jury. The second fact, to quote the information, was that “[defendant‘s] license to drive was revoked due to [DUI].” See
¶ 51 Apprendi holds: “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.” Apprendi, 530 U.S. at 490. The ” ‘statutory maximum’ ” for purposes of Apprendi is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis omitted.) Blakely, 542 U.S. at 303. The jury‘s verdict in this case reflects only two propositions, which comprise the offense of misdemeanor driving while license revoked (
correctness of proving one of the sentence-enhancing facts to the sentencing judge instead of to the jury, namely, the fact of his three or more prior convictions of driving while license revoked (
¶ 52 The majority says: “Illinois courts have found the State is not required to prove as an element of a defendant‘s enhanced driving with a revoked license offense the fact the original revocation of his license was predicated on a DUI conviction.” Supra ¶ 33. More precisely, one Illinois court, the Illinois Appellate Court, has so found in DiPace and Bowman. As I will explain, however, some of the reasoning in DiPace and Bowman is problematic, and the remaining cases the majority
¶ 53 Let us take a look at the majority‘s cited cases one at a time, in the order in which they appear in the majority‘s opinion.
¶ 54 I. Lucas
¶ 55 The majority cites Lucas in support of the proposition that, “with the addition of subsection (c) [to section 111-3 of the Procedure Code (
¶ 56 Granted, in Lucas, the State proved to the jury only the misdemeanor offense of driving while license revoked (
(quoting Nix v. Smith, 32 Ill. 2d 465, 470, 207 N.E.2d 460, 463 (1965)). The defendant in Lucas argued only that “the State had not proved to the jury [his] prior conviction [of driving while license revoked], which elevated his offense to a felony.” Lucas, 231 Ill. 2d at 173, 897 N.E.2d at 781. He never argued the State‘s failure to prove to the jury that DUI was why the Secretary had revoked his license. See Lucas, 231 Ill. 2d at 173, 897 N.E.2d at 781. He would have forfeited any points he omitted to argue, including that one. See Ill. S. Ct. R. 341(h)(7) (eff. Mar. 16, 2007) (“Points not argued are waived,” or forfeited).
¶ 57 Thus, Lucas cannot reasonably be interpreted as a case in which, to quote the majority, an “Illinois [court] *** found the State [was] not required to prove[,] as an element of a defendant‘s enhanced driving with a revoked license offense[,] the fact the original revocation of his license was predicated on a DUI conviction.” Supra ¶ 33. That issue was neither raised nor addressed in Lucas.
¶ 58 II. DiPace
¶ 59 In DiPace, the trial court found the defendant guilty, in a bench trial, of two
¶ 60 Section 11-501(c-1)(3) provided as follows:
“(3) A person who violates this Section [(
625 ILCS 5/11-501 (West 2002))] a fourth or subsequent time during a period in which his or her driving privileges are revoked or suspended where the revocation or suspension was for a violation of this Section, Section 11-501.1 [(625 ILCS 5/11-501.1 (West 2002))], paragraph (b) of Section 11-401 [(625 ILCS 5/11-401(b) (West 2002))], or Section 9-3 of the Criminal Code of 1961 [(720 ILCS 5/9-3 (West 2002))] is guilty of a Class 2 felony.”625 ILCS 5/11-501(c-1)(3) (West 2002).
Thus, the Class 2 felony of DUI had the following three elements. First, before committing DUI this time, defendant committed DUI on at least three prior occasions. Second, while committing DUI this time, his driving privileges were revoked or suspended. Third, “the revocation or suspension was for” DUI (
¶ 61 The other section of the Vehicle Code under which the defendant was convicted in DiPace, section 6-303(d), provided as follows:
court, if the revocation or suspension was for a violation of Section 11-401 [(“(d) Any person convicted of a second violation of this Section [(
625 ILCS 5/6-303 (West 2002))] shall be guilty of a Class 4 felony and shall serve a minimum term of imprisonment of 30 days or 300 hours of community service, as determined by the
Thus, the Class 4 felony of driving while license revoked had the following two elements. First, the defendant was convicted a second time of driving while license revoked. Second, “the revocation or suspension [of the defendant‘s driver‘s license] was for” leaving the scene of an accident involving death or personal injury (
¶ 62 In DiPace, the defendant argued “the State [had] failed to prove beyond a reasonable doubt, as elements of his crimes, that his license [had been] revoked for the grounds set forth in section 6-303(d) (
“However, ‘[w]hen the State seeks an enhanced sentence because of a prior conviction,’ ‘the fact of such prior conviction *** [is] not [an] element[ ] of the offense ***. For the purposes of this [s]ection, “enhanced sentence” means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification ***.’
725 ILCS 5/111-3(c) (West 2002). Therefore, the State need not prove prior commissions of driving under the influence beyond a reasonable doubt as an element of Class 2 felony driving under the influence (People v. Thompson, 328 Ill. App. 3d 360, 364-66 (2002)), nor must it prove prior commissions of driving while license revoked as an element of Class 4 felony driving while license revoked (People v. Bowman, 221 Ill. App. 3d 663, 666 (1991)). The existence of these predicate offenses is used after a defendant‘s conviction to increase the classification of his crime at sentencing. Thompson, 328 Ill. App. 3d at 364-66.” DiPace, 354 Ill. App. 3d at 114.
¶ 64 That reasoning does not hold together. By no plausible interpretation did section 111-3(c) bar the State from proving, in the trial, the third sentence-enhancing fact in section 11-501(c-1)(3) and the second sentence-enhancing fact in section 6-303(d): that DUI was why the Secretary had revoked the defendant‘s driver‘s license. That the Secretary cited DUI as his reason for the revocation is a fact, an administrative event, separate from the defendant‘s conviction of DUI. Evidently, the legislature knows how to plainly say so when it intends to make a prior conviction a sentence-enhancing fact. See Brucker v. Mercola, 227 Ill. 2d 502, 532 (2007). In plain terms, section 6-303(d) requires proof of a prior conviction of driving while license revoked, but section 6-303(d) says nothing about a prior conviction of DUI. If, in seeking an enhanced sentence under section 6-303(d), the State presented to the trier of fact a docket entry showing that the defendant previously was convicted of DUI, the State would not obtain an enhanced sentence, because that section requires proof that, when revoking or suspending the defendant‘s driver‘s license, the Secretary did so on any of the specified grounds, not that the defendant was convicted of any of the specified grounds. See
¶ 65 Again, Apprendi holds: “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 490. Likewise, in accordance with Apprendi, section 111-3(c-5) provides: “[I]f an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument ***, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt.”
III. Bowman
¶ 66 ¶ 67 In Bowman—a decision that predates Apprendi—the defendant was convicted of felony driving while license revoked, a violation of section 6-303(d) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, ¶ 6-303(d)). Bowman, 221 Ill. App. 3d at 664, 583 N.E.2d at 115. At the time, that statute provided as follows:
“(d) Any person convicted of a second or subsequent violation of this Section shall be guilty of a Class 4 felony if the original revocation or suspension was for a violation of Section 11-401 or 11-501 of this Code [(Ill. Rev. Stat. 1989, ch. 95½, ¶¶ 11-401, 11-501)], or a similar provision of a local ordinance, or a violation of Section 9-3 of the Criminal Code of 1961 [(Ill. Rev. Stat. 1989, ch. 38, ¶ 9-3)], as amended, relating to the offense of reckless homicide.” Ill. Rev. Stat. 1989, ch. 95½, ¶ 6-303(d).
Thus, section 6-303(d) required proof of two sentence-enhancing facts. The first fact was that the defendant previously was convicted of driving while license revoked. Ill. Rev. Stat. 1989, ch. 95½, ¶ 6-303(d). The second fact was that “the original revocation or suspension was for a violation” of any of the listed statutory provisions, such as DUI. Ill. Rev. Stat. 1989, ch. 95½, ¶ 6-303(d).
¶ 68 In a pretrial conference, “[t]he prosecutor indicated an ability to prove [the] defendant‘s revocation based on a DUI,” but the prosecutor recommended that, to avoid prejudicing the defendant with proof of a prior bad act, the State would prove the reason for the revocation, DUI, in the sentencing hearing instead of in the jury trial. Bowman, 221 Ill. App. 3d at 664-65, 583 N.E.2d at 115. Defense counsel agreed to this recommended procedure, and accordingly, in the jury trial, the State proved misdemeanor driving while license revoked, and in the sentencing hearing, the State proved the two sentence-enhancing facts in section 6-303(d). Bowman, 221 Ill. App. 3d at 665, 583 N.E.2d at 115.
¶ 69 The defendant appealed, arguing that “the State failed to prove, and the jury was not instructed regarding, one of
¶ 70 So, the doctrine of estoppel disposed of the appeal. Bowman, 221 Ill. App. 3d at 665-66, 583 N.E.2d at 116. But we did not stop there. We went on to opine, in dictum, that “the procedure followed by trial counsel and the trial court was both correct *** and required by section 111-3(c) of the [Procedure] Code *** (Ill. Rev. Stat. 1989, ch. 38, par. 111-3(c)).” Bowman, 221 Ill. App. 3d at 666, 583 N.E.2d at 116. This dictum is flawed because section 111-3(c), by its terms, applied to only one of the sentence-enhancing facts in section 6-303(d), namely, the prior conviction of driving while license revoked. Section 111-3(c) did not forbid the disclosure to the jury that DUI was why the Secretary had revoked the defendant‘s license. See Bowman, 221 Ill. App. 3d at 666, 583 N.E.2d at 116 (where Ill. Rev. Stat. 1989, ch. 38, ¶ 111-3(c) is quoted). If, in the course of disclosing the Secretary‘s reason to the jury, the State would have unavoidably disclosed to the jury that the defendant had been convicted of DUI (see Bowman, 221 Ill. App. 3d at 665, 583 N.E.2d at 116), that disclosure would not have violated section 111-3(c), because section 111-3(c) did not forbid the disclosure to the jury of any and all convictions. Rather, it forbade the disclosure to the jury of a prior conviction if “the State[sought] an enhanced sentence because of [that] prior conviction.” Ill. Rev. Stat. 1989, ch. 38, ¶ 111-3(c). Because a prior conviction of DUI was not a sentence-enhancing fact under section 6-303(d), section 111-3(c) did not forbid the disclosure of that prior conviction to the jury.
IV. Thompson
¶ 71 ¶ 72 In Thompson, 328 Ill. App. 3d at 361, 765 N.E.2d at 1209, the defendant was charged with aggravated DUI (
¶ 73 The State presented no evidence of this sentence-enhancing fact in the bench trial. Thompson, 328 Ill. App. 3d at 361, 765 N.E.2d at 1210. Instead, “[a]t 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.” Thompson, 328 Ill. App. 3d at 361, 765 N.E.2d at 1210.
¶ 74 The Second District responded: “We believe that the defendant‘s argument places form over substance and that both of his priors must be considered the functional equivalents of prior convictions under the recidivist exception of Apprendi.” Thompson, 328 Ill. App. 3d at 364, 765 N.E.2d at 1212. (The Second District explained that, although a disposition of supervision was not technically a conviction under Illinois law, it was a conviction for purposes of Apprendi because to receive a disposition of supervision, the defendant had to plead guilty to DUI or had to stipulate to the underlying facts. Thompson, 328 Ill. App. 3d at 365, 765 N.E.2d at 1213.)
¶ 75 Echoing this language from Thompson, the majority says: “While defendant maintains the reason for the revocation is something other than a conviction for Apprendi purposes, that argument places form over substance and amounts to a distinction without a difference.” Supra ¶ 39. This analogy to Thompson is flawed. In Thompson, the commission ofDUI was inherent in the conviction of DUI, such that by proving, in the sentencing hearing, that the defendant was convicted of DUI (as Apprendi allowed the State to do (Apprendi, 530 U.S. at 490)), the State thereby proved he committed the DUI of which he was convicted. A conviction of DUI (if the period for review has run out) estops the defendant from denying he committed the DUI. See People v. Reed, 262 Ill. App. 3d 473, 483-84, 634 N.E.2d 291, 298-99 (1994). But the conviction of DUI does not estop the defendant from denying that DUI was why the Secretary had revoked his license and from requiring the State to prove that allegation beyond a reasonable doubt. The Secretary‘s reason for the revocation is not inherent in the defendant‘s conviction of DUI the way his commission of DUI is. His conviction of DUI and the Secretary‘s use of the conviction as the reason for revoking his driver‘s license are two separate facts, one of them judicial and the other administrative. That the administrative fact would be a highly probable consequence of the judicial fact does not make them “functional equivalents,” or the same fact, in the sense of Thompson. Thompson, 328 Ill. App. 3d at 364, 765 N.E.2d at 1212.
V. Braman
¶ 76 ¶ 77 Braman is essentially the same case as Thompson. The defendant was charged with aggravated DUI (
¶ 78 Evidently, the Third District in Braman regarded the commission of DUI as inherent in the conviction of DUI, as did the Second District in Thompson. Braman and Thompson are inapposite because defendant in the present case was charged with felony driving while license revoked, not aggravated DUI. The present case involves a different statute, with different sentence-enhancing facts. Comparing the sentence-enhancing fact in Braman and Thompson to the different sentence-enhancing fact at issue in the present case is like comparing an apple and an orange.
¶ 79 Instead of resorting to this strained comparison to justify the violation of defendant‘s rights to a jury trial and to proof beyond a reasonable doubt, we should apply section 111-3(c-5) of the Procedure Code according to its plain terms:
“(c-5) Notwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through awritten notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt.”
725 ILCS 5/111-3(c-5) (West 2012).
That the Secretary revoked defendant‘s driver‘s license for DUI is not “the fact of a prior conviction,” and no amount of fancy parsing can make it so.
¶ 80 The majority says: “[D]efendant does not cite a single case supporting the proposition” that “the reason for the revocation is something other than a conviction for Apprendi purposes.” Supra ¶ 39. The lack of precedents is readily explainable: Bowman and DiPace closed the door on that proposition—erroneously, as I have explained. Besides, we are permitted to read and apply section 111-3(c-5) and Apprendi for ourselves. Those two authorities are readily comprehensible, and we need not wait for someone else to mediate them to us. That the Secretary, in his records, stated DUI as the reason for revoking defendant‘s driver‘s license is a fact other than the fact of defendant‘s conviction of DUI, and therefore, under section 111-3(c-5), which codifies Apprendi, that fact had to be proved to the jury beyond a reasonable doubt—as, apparently,