Case Information
*1
Order filed December 30, 2020
Third Division NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of Respondent-Appellee, ) Cook County ) v. ) No. 12 1247418 ) KEVIN SROGA, ) Honorable
) Diann K. Marsalek, Petitioner-Appellant. ) Judge presiding.
JUSTICE BURKE delivered the judgment of the court.
Presiding Justice Howse and Justice Ellis concurred in the judgment.
ORDER Held : Where section 4-104(a)(4) of the Illinois Vehicle Code (625 ILCS 5/4-104(a)(4)
(West 2012)) does not contain the same elements as section 3-703 of the Illinois Vehicle Code (625 ILCS 5/3-703 (West 2012)), section 4-104(a)(4) does not violate the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Years after petitioner Kevin Sroga was convicted and sentenced to 12 months’ probation
for violating section 4-104(a)(4) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/4- 104(a)(4) (West 2012)) by affixing to his vehicle a license plate not registered for use on the vehicle, he filed a section 2-1401 petition challenging his conviction and sentence. Upon the State’s motion, the circuit court dismissed his petition. Sroga now appeals that dismissal and contends that section 4-104(a)(4) violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), where the offense contains the same elements as an offense described in section 3-703 of the Vehicle Code (625 ILCS 5/3-703 (West 2012)), but is punished more severely. For the reasons that follow, we affirm the circuit court’s dismissal. I. BACKGROUND The State charged Sroga with a Class A misdemeanor for possession of unauthorized registration on a vehicle for affixing to his vehicle a license plate not registered for use on the vehicle in violation of section 4-104(a)(4) of the Vehicle Code (625 ILCS 5/4-104(a)(4) (West 2012)). Sroga’s case proceeded to a jury trial, where the State’s evidence showed that, in October 2012, a Chicago police officer observed an unoccupied Ford Crown Victoria parked on the sidewalk. While writing a citation for the parking infraction, the officer ran the vehicle’s license plate through a police database and learned that the license plate affixed to the vehicle was registered to another vehicle, which Sroga owned. A short time later, Sroga appeared and attempted to move the Ford, which he also owned. The officer informed Sroga that his license plate was not registered to the Ford to which Sroga responded “you got me on the plates.” The jury found Sroga guilty of the offense. Thereafter, he filed an unsuccessful motion for new trial, and on October 6, 2014, the trial court sentenced him to 12 months’ probаtion. Sroga did not appeal his conviction or sentence. On October 6, 2016, Sroga filed a pro se petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)) and requested that his conviction and sentence be vacated. He argued that he had a possessory right to the license plate on the Ford and suggested that his conduct would have been more appropriately charged as a violation of section 3-703 of the Vehicle Code (625 ILCS 5/3-703 (West 2012)) for improper use of evidence of registration. In response, the State filed a motion to dismiss, contending that his petition failed to show he was entitled to relief and was also barred by res judicata . Ultimately, the circuit court granted the State’s motion to dismiss, finding that res judicata barred the relief Sroga sought because he had raised the same arguments in his posttrial motion for new trial. ¶ 6 This appeal followed.
¶ 7 II. ANALYSIS Sroga contends that section 4-104(a)(4) of the Vehicle Code (625 ILCS 5/4-104(a)(4)
(West 2012)), which is punishable as a Class A misdemeanor, violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because the identical conduct also constitutes a violation of section 3-703 of the Vehicle Code (625 ILCS 5/3-703 (West 2012)), which is punishable only as a Class C misdemeanor. A. Procedural Default and Mootness At the outset, we must address two issues that could potentially preclude us from reaching
the merits of Sroga’s challenge under the proportionate penalties clause. First, Sroga raised his
specific claim of a violation of the proportionate penalties clause for the first time on appeal from
the dismissal of his section 2-1401 petition. Generally, the normal rules that require preservation
of error would prevent us from reviewing his claim. See
People v. Thompson
,
normal rules governing such petitions, he was required to file his petition within two years after
the entry of the order of judgment, to present a meritorious defense and to show diligence in
presenting the court with that defense.
People v. Vincent
, 226 Ill. 2d 1, 7 (2007). Given the
circumstances of this case, it is arguable that Sroga did not act diligently in presenting his petition.
However, the normal requirement of diligence in presenting a section 2-1401 petition does not
preclude us from reviewing his challenge because his claim is that section 4-104(a)(4) violates the
proportionate penalties clause and thus is void
ab initio.
See
Thompson
,
penalties challenge is whether his challenge is moot, as the State argues. “A case is moоt if the
issues involved in the trial court have ceased to exist because intervening events have made it
impossible for the reviewing court to grant effectual relief to the complaining party.”
People v.
Roberson
,
clause, the proper remedy would be to reduce Sroga’s conviction from a Class A misdemeanor to a Class C misdemeanor consistent with section 3-703. And in doing so, under normal circumstances, the State asserts that the case would be remanded to the trial court for resentencing. Yet, according to the State, because Sroga has already served the greater Class A misdemeanor sentence of 12 months’ probation, which was imposed more than six years ago, his substantive claim is moot and we cannot provide any real relief to him. Sroga, however, argues that, if section 4-104(a)(4) were to violate the proportionate
penalties clause, the proper remedy would be to reverse his conviction. Sroga posits that, when an amended sentencing statute has been found to violate the proportionate penalties clause, the proper remedy is a remand for resentencing consistent with the pre-amended version of the statute. Sroga, though, asserts that no prior version of section 4-104(a)(4) has ever had a constitutionally proportionate sentence and thus no constitutional sentence ever existed for the offense. Sroga therefore claims that the State never had the authority to charge him with an offense for violating section 4-104(a)(4) and thus reversal is the only appropriate remedy. Although the parties disagree about the ultimate remedy if we were to find that section 4-
104(a)(4) violates the proportionate penalties clause, both nevertheless agree that Sroga would
have been convicted of a Class A misdemeanor—the most severe misdemeanor—improperly. See
730 ILCS 5/5-4.5-55 to 5-4.5-65 (West 2012). In other words, a successful proportionate penalties
challenge by Sroga would at the very least result in his conviction being reduced from a Class A
misdemeanor to a Class C misdemeanor, consistent with the comparator statute of section 3-703.
That is potentially real relief to him and therefore, we find this appeal is not moot. See
People v.
Yaworski
,
shall be determined both according to the seriousness of the offense and with the objective of
restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. In analyzing a
constitutional challenge under the clause, we must determine whether our legislature has set a
sentence consistent with the gravity of the offense.
Ligon
, 2016 IL 118023, ¶ 10. One way a
sentence can violate the clause is where a sentence “is greater than the sentence for an offense with
identical elements.”
Id.
“If the legislature determines that the exact same elements merit two
different penalties, then one of these penalties has not been set in accordance with the seriousness
of the offense.”
People v. Sharpe
, 216 Ill. 2d 481, 522 (2005). The expectation that identical
conduct will result in identical penalties comports with logic and common sense, and where it does
not, “the penalties [are] unconstitutionally disproportionate and the greater penalty [cannot] stand.”
Ligon
,
104(a)(4) of the Vehicle Code (625 ILCS 5/3-703, 4-104(a)(4) (West 2012)), and determine
whether they contain identical elements. When we interpret a statute, our primary objective to
determine and give effect to the intent of our legislature.
People v. Clark
,
determining whether two provisions of the Vehicle Code prohibiting trespass to a vehicle were absolute liability offenses. Neither section contained an explicit culpable mental state and in determining whether one should be implied, the court compared the provisions to a similar provision in the Criminal Code of 1961 that also prohibited trespass to a vehicle. Id. at 549. In doing so, the court observed that the trespass statute found in the Criminal Code of 1961 contained the culpable mental state of knowledge whereas the trespass provisions found in the Vehicle Code did not. Id. at 549-50. The court found the inclusion of a culpable mental state in the Criminal Code of 1961 and exclusion of one in the Vehicle Code indicative of a legislative intent that no culpable mental state should be implied in the trespass provisions of the Vehicle Code. Id. at 550. To find otherwise, according to our supreme court, would render the mental state of knowledge in the trespass provision of the Criminal Code of 1961 “ ‘meaningless surplusage.’ ” C. The Statutes At Issue With these principles of statutory construction in mind, we turn to the two statutes at issue in this appeal, which are both found in different chapters of the Vehicle Code. The first statute at issue is section 4-104(a)(4) (625 ILCS 5/4-104(a)(4) (West 2012)), under which defendant was charged and convicted. The provision makes it unlawful for:
“[a] person to display or affix to a vehicle any certificate of title, manufacturеrs statement of origin, salvage certificate, junking certificate, display certificate, temporary registration permit, registration card, license plate or registration sticker not authorized by law for use on such vehicle.”
Id. A first violation is considered a Class A misdemeanor (625 ILCS 5/4-104(b)(3) (West 2012)), which is punishable by a sentence of imprisonment of up to 364 days and a fine not to exceed $2500. 730 ILCS 5/5-4.5-55(a), (e) (West 2012). Meanwhile, section 3-703 (625 ILCS 5/3-703 (West 2012)) contains various prohibitions related to evidence of vehicle registration and certificates of title. Pertinent to this appeal, section 3-703 provides in part that:
“nor shall any person display upon a vеhicle any registration card, registration sticker or digital registration sticker, registration plate or digital registration plate or other evidences of proper registration not issued for such vehicle or not otherwise lawfully used thereon under this Code.” A violation is considered a Class C misdemeanor ( id. ), which is punishable by up to 30 days’
imprisonment and a fine of up to $1500. 730 ILCS 5/5-4.5-65(a), (e) (West 2012). Both statutes are virtually the same today as they were when Sroga committed his offense. See 625 ILCS 5/3- 703, 4-104(a)(4) (West 2020); 625 ILCS 5/3-703, 4-104(a)(4) (West 2012). And the punishments for Class A and Class C misdemeanors remain the same today as when Sroga committed the offense. See 730 ILCS 5/5-4.5-55, 5-4.5-65 (West 2020); 730 ILCS 5/5-4.5-55, 5-4.5-65 (West 2012). Initially, we note that section 4-104(a)(4) utilizes the term “license plate” whereas section
3-703 utilizes the term “registration plate.” See 625 ILCS 5/3-703; 4-104(a)(4) (West 2012). But
previous decisions from Illinois courts have used the term “license plate” and “registration plate”
interchangeably. See generally
People v. Gaytan
,
provisions of the Vehicle Code more succinctly for purposes of this appeal. To this end, section 4- 104(a)(4) makes it unlawful for “[a] person to display оr affix to a vehicle any *** license plate *** not authorized by law for use on such vehicle.” 625 ILCS 5/4-104(a)(4) (West 2012). Conversely, section 3-703 makes it unlawful for a person to “display upon a vehicle any *** registration plate *** not issued for such vehicle or not otherwise lawfully used thereon.” 625 ILCS 5/3-703 (West 2012). Despite the similar language and prohibition, the State argues that the provisions do not share the same culpable mental state. Although the State acknowledges no culpable mental state is explicitly required by either provision, it asserts that, because section 4- 104(a)(4) is punishable as a Class A misdemeanor compared to section 3-703 being punishаble as a Class C misdemeanor, a knowing mental state should be implied into section 4-104(a)(4) whereas section 3-703 should be construed as an absolute liability offense. An absolute liability offense is an offense in which culpability is not an element. People v.
Kite
,
determine whether it is an absolute liability offense. A first violation of section 4-104(a)(4) is a
Class A misdemeanor (625 ILCS 5/4-104(b)(3) (West 2012)), which is punishable by a sentence
of imprisonment of up to 364 days and a fine not to exceed $2500. 730 ILCS 5/5-4.5-55(a), (e)
(West 2012). A subsequent violation of section 4-104(a)(4) is a Class 4 felony (625 ILCS 5/4-
104(b)(3) (West 2012)), which is punishable by one to three years’ imprisonment. 730 ILCS 5/5-
4.5-45(a) (West 2012). Given that a first violation, as was the case with petitioner, is punishable
as a Class A misdemeanor with potential imprisonment and a $2500 fine, possession of
unauthorized registration on a vehicle could only be an absolute liability offense if there was a
clear legislative intent to impose absolute liability. See 720 ILCS 5/4-9 (West 2012);
People v.
Sito
,
determining when a statute clearly indicates a legislative purpose to impose absolute liability for the conduct described. In the сase, the court had to determine whether sections 4-104(a)(1) and (a)(2) of the Vehicle Code were absolute liability offenses. at 287-88. At the time, those sections made it unlawful for:
“1. A person to possess without authority any manufacturers statement of origin, certificate of title, salvage certificate, junking certificate, display certificate of title, registration card, license plate, registration sticker or temporary registration permit, whether blank or otherwise;
2. A person to possess any manufacturers certificate of origin, salvage certificate, junking certificate, certificate of title, display certificate without complete assignment.”
Ill. Rev. Stat. 1987, ch. 95 ½, ¶ 4-104(a)(1), (2). And a violation of either subsection was punishable as a Class 4 felony. Ill. Rev. Stat. 1987, ch. 95 ½, ¶ 4-104(b)(1). Our supreme court first observed that neither section 4-104(a)(1) or 4-104(a)(2) contained
a culpable mental state, and, as a result, it had to determine whether there was a strong legislative
intent to make the offenses absolute liability offenses.
Gean
,
4-104(a)(1) and 4-104(a)(2) were punishable as Class 4 felonies that carried a “substantial pеnalty”
of up to three years’ imprisonment.
Id.
at 288. The court remarked that “ ‘[i]t would be unthinkable
to subject a person to a long term of imprisonment for an offense he might commit unknowingly.’
” at 287 (quoting
People v. Valley Steel Products Co.
,
4-104(a)(3) contains the culpable mental state of knowledge yet section 4-104(a)(4) contains no
culpable mental state. And gеnerally, “by employing certain language in one instance and wholly
different language in another, the legislature indicates that different results were intended.”
In re
K.C.
,
misdemeanor punishable by up to 364 days of imprisonment as well as a fine up to $2500, and the fact that section 4-104(a)(4) does not clearly indicate a legislative purpose to impose absolute liability, possession of unauthorized registration on a vehicle is not an absolute liability offense. See 720 ILCS 5/4-9 (West 2012). In light of this conclusion, we must determine which mental state should be implied into
the statute. When a statute does not provide a culpable mental state applicable to an element of the
offense, any of the mental states of intent, knowledge or recklessness may apply. 720 ILCS 5/4-
3(b) (West 2012). In
Gean
,
reason for a mental state more culpable than knowledge to be applicable, and therefore, we find the mental state of knowledge appropriate. Therefore, as relevant to this case, section 4-104(a)(4) makes it unlawful for a person to display or affix a license plate to a vehicle knowing that it is not authorized by law for use on such vehicle. E. Section 3-703 of the Vehicle Code Having concluded that section 4-104(a)(4) of the Vehicle Code requires an implied mental
state of knowledge, we next turn to section 3-703 to determine whether it is an absolute liability
offense. As noted, in relevant part, this section provided that: “nor shall any person display upon
a vehicle any *** registration plate *** not issued for such vehicle or not otherwise lawfully used
thereon.” 625 ILCS 5/3-703 (West 2012). A violation of this section is a Class C misdemeanor
(
id.
), which is punishable by up to 30 days’ imprisonment and a fine of up to $1500. 730 ILCS
5/5-4.5-65(a), (e) (West 2012). Given these potential consequences, improper use of evidence of
registration could only be an absolute liability offense if there was a clear legislative intent to
impose absolute liability. See 720 ILCS 5/4-9 (West 2012);
Sito
,
[1] At the time of the O’Brien decision, section 4-9 of the Criminal Code of 1961 provided that an absolute liability offense could only exist if “the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500 , or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” (Emphasis added.) 720 ILCS 5/4-9 (West 1998).
uninsured motor vehicle could only be an absolute liability offense if section 3-707 clearly indicated a legislative purpose to impose absolute liability. Id. at 92. In concluding that there was such a clear legislative intent, our supreme court highlighted
three sources of intent.
Id.
at 92-95. First, our supreme court highlighted the word “shall” in section
3-707 and found that indicative of a clear “legislative intent to impose a mandatory obligation.”
Id.
at 93. Second, the court emphasized the “minor penalty” for violations of section 3-707,
observing that the offense was not punishable by imprisonment and only a fine between $501 and
$1000, barely above the threshold for absolute liability offenses at the time.
Id.
at 93-94. The court
remarked that, where “the penalty is not severe, the likelihood of a legislative intent to impose
absolute liability is enhanced.”
Id.
at 94. And third, the court “discern[ed] a clear legislative
purpose to impose absolute liability” when considering section 3-707 in the context of other related
provisions of the Vehicle Code, in particular several other provisions of chapter 3, article VII, that
contained the culpable mental state of knowledge.
Id.
at 94-95 (citing 625 ILCS 5/3-701(1) (West
1998); 625 ILCS 5/3-702(a)(1) (West 1998); 625 ILCS 5/3-702(b) (West 1998); 625 ILCS 5/3-
703 (West 1998); 625 ILCS 5/3-710 (Wеst 1998)). Given that these related provisions contained
the culpable mental state of knowledge and section 3-707 did not, the court found it “must presume
that, by specifically including a culpable mental state in the numerous [related] statutes ***, the
legislature’s omission of a culpable mental state in section 3-707 ‘indicates that different results
were intended.’ ”
Id.
at 95 (quoting
In re K.C.
,
a legislative purpose to impose absolute liability for improper use of evidence of registration. First,
just like
O’Brien
, the relevant prohibition in section 3-703 contains the word “shall,” which
demonstrates a clear “legislative intent to impose a mandatory obligation.” at 93. Second, the
punishment for violating section 3-703 is not so severe. While a Class C misdemeanor is more
serious than a petty offense that does not subject a violator to imprisonment (730 ILCS 5/5-1-17
(West 2012);
People v. Studley
,
section clearly indicates a legislative purpose to impose absolute liability for improper use of evidence of registration. Unlike in Gean and our conclusion with respect to section 4-104(a)(4), the punishment for violating section 3-703 is not so severe that we may disregard the general rule of statutory construction that “by employing certain language in one instance and wholly different language in another, the legislature indicates that different results were intended.” In re K.C. , 186 Ill. 2d at 549-50. Thus, we find evidence of legislative intent to impose absolute liability by examining other provisions of chapter 3, article VII of the Vehicle Code. Notably, a different prohibition in section 3-703 itself provides that:
“No person shall lend to another any certificate of title, registration card, registration plate or digital registration plate, registration sticker or digital registration sticker, special plate or permit or other evidences of proper registration issued to him if the person desiring to borrow the same would not be entitled to the use thereof, nor shall any person knowingly permit the use of any of the same by one not entitled thereto.”
(Emphasis added). 625 ILCS 5/3-703 (West 2012). Amongst the various prohibitions in section 3-
703, the aforementioned one is the only prohibition where an explicit culpable mental state
appears. Because of our legislature’s use of the mental state of knowledge in one prohibition in
section 3-703 but not anywhere else, in particular the prohibition relevant to this appeal, we must
presume that different results were intended. See
O’Brien
,
¶ 40 Our conclusion is buttressed by a review of other relevant sections in chapter 3, article VII
of the Vehicle Code, where our legislature explicitly included the culpable mental state of
knowledge. See 625 ILCS 5/3-701, 3-702, 3-710 (West 2012). Just as in
O’Brien
, we cannot ignore
these deliberate indications of legislative intent. Consequently, the relevant prohibition in section
3-703 clearly indicates a legislative purpose to impose absolute liability, and we will not imply a
culpable mental state for the specific offense of improper use of evidence of registration.
¶ 41 In sum, section 4-104(a)(4) contains an implied mental state of knowledge whereas the
pertinent prohibition in section 3-703 is an absolute liability offense. As such, these offenses do
not share the same elements and there is no violation of the proportionate penalties clause of the
Illinois Constitution. See
Ligon
,