People v. SrogaPeople v. Sroga
Presiding Justice Howse and Justice Ellis concurred in the judgment.
ORDER
¶ 1 Held: Where section 4-104(a)(4) of the Illinois Vehicle Code (
¶ 2 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) (
¶ 3 I. BACKGROUND
¶ 4 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 (
¶ 5 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 (
¶ 6 This appeal followed.
¶ 7 II. ANALYSIS
¶ 8 Sroga contends that section 4-104(a)(4) of the Vehicle Code (
¶ 9 A. Procedural Default and Mootness
¶ 10 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, 2015 IL 118151, ¶ 39. But if section 4-104(a)(4) violates the proportionate penalties clause, then it is void ab initio (People v. Guevara, 216 Ill. 2d 533, 542 (2005)), meaning “that the statute was constitutionally infirm from the moment of its enactment and, therefore, unenforceable.” Thompson, 2015 IL 118151, ¶ 32. As such, Sroga may attack the allegedly unconstitutional statute at any time in any court, either collaterally or directly. People v. Davis, 2014 IL 115595, ¶ 26; see People v. Ligon, 2016 IL 118023, ¶ 9 (“Voidness challenges stemming from the unconstitutionality of a criminal statute under the proportionate penalties clause may be raised at any time.“). Thus, the fact that Sroga raised his proportionate penalties challenge for the first time on appeal does not preclude us from reviewing his challenge.
¶ 11 Relatedly, because Sroga brought his challenge in a section 2-1401 petition, under the 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, 2015 IL 118151, ¶ 32; Guevara, 216 Ill. 2d at 542.
¶ 12 The second issue we must consider before addressing the merits of Sroga‘s proportionate penalties challenge is whether his challenge is moot, as the State argues. “A case is moot if the issues involved in the triаl 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, 212 Ill. 2d 430, 435 (2004). Where an appeal involves the propriety of a sentence, the appeal is generally moot where the individual has served his sentence. In re Shelby R., 2013 IL 114994, ¶ 15.
¶ 14 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.
¶ 15 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
¶ 16 B. The Proportionate Penalties Clause
¶ 17 The proportionate penalties clause of the Illinois Constitution provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
¶ 18 This case causes us to interpret two statutes, specifically section 3-703 and section 4-104(a)(4) of the Vehicle Code (
¶ 19 For instance, in In re K.C., 186 Ill. 2d 542, 545 (1999), our supreme court was tasked with 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.’ ” Id.
¶ 20 C. The Statutes At Issue
“[a] person to displаy or affix to a vehicle any certificate of title, manufacturers 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.”
“nor shall any person display upon а vehicle 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.”
¶ 22 Initially, we note that section 4-104(a)(4) utilizes the term “license plate” whereas section 3-703 utilizes the term “registration plate.” See
¶ 23 With that initial issue out of the way, we can break down the relevant language of both 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 or affix to a vehicle any *** liсense plate *** not authorized by law for use on such vehicle.”
¶ 24 An absolute liability offense is an offense in which culpability is not an element. People v. Kite, 153 Ill. 2d 40, 44 (1992). The Criminal Code of 2012 allows for an absolute liability offense only where “the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $1,000, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.”
¶ 25 D. Section 4-104(a)(4) of the Vehicle Code
¶ 26 With these principles of absolute liability in mind, we first turn to section 4-104(a)(4) to determine whether it is an absolute liability offense. A first violation of section 4-104(a)(4) is a
¶ 27 Our supreme court in People v. Gean, 143 Ill. 2d 281 (1991), laid out a rubric for determining when a statute clearly indicates a legislative purpose to impose absolute liability for the conduct described. In the case, the court had to detеrmine whether sections 4-104(a)(1) and (a)(2) of the Vehicle Code were absolute liability offenses. Id. 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).
¶ 28 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, 143 Ill. 2d at 287. In arguing that they were absolute liability offenses, the State highlighted section 4-104(a)(3), which made it unlawful to “possess any manufacturer‘s statement of origin, certificate of title, or salvage certificate, etc., ‘knowing it to have been stolen, converted, altered, forged, or counterfeited.’ ” (Emphasis added.) Id. (quoting Ill. Rev. Stat. 1987, сh. 95 ½, ¶ 4-104(a)(3)). Despite the culpable mental state of knowledge being present in section 4-104(a)(3), the court disagreed that the absence of one in sections 4-104(a)(1) and 4-104(a)(2) demonstrated a clear legislative intent to make those sections absolute liability offenses. Id. The court found that, “[a]fter reviewing the legislative history of section 4-104, [it was] unable to find any legislative intent that sections 4-104(a)(1) and (a)(2) [were] absolute liability offenses.” Id.
¶ 29 Buttressing this conclusion, our supreme court further observed that violations of sections 4-104(a)(1) and 4-104(a)(2) were punishable as Class 4 felonies that carried a “substantial penalty” of up to three yeаrs’ 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.’ ” Id. at 287 (quoting People v. Valley Steel Products Co., 71 Ill. 2d 408, 425 (1978)). In light of the legislative history of section 4-104 failing to show any legislative intent to make sections 4-
¶ 30 Turning to the instant case, we acknowledge, as our supreme court did in Gean, that section 4-104(a)(3) contains the culpable mental state of knowledge yet section 4-104(a)(4) contains no culpable mental state. And generally, “by emрloying 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. However, despite this principle of statutory construction, as with Gean, our search of the legislative history of section 4-104 fails to show any clear legislative purpose to impose absolute liability for the conduct described in section 4-104(a)(4). But just as important are the potential punishments for violating section 4-104(a)(4). A first violation of section 4-104(a)(4) is a Class A misdemeanor with a potential imprisonment of nearly one year (
¶ 32 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.
¶ 33 Given that a violation of section 4-104(a)(4) is punishable as a misdemeanor, we see no 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.
¶ 35 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.”
¶ 36 Instructive in determining whether section 3-703 clearly indicates a legislative purpose to impose absolute liability for the conduct described is People v. O‘Brien, 197 Ill. 2d 88, 89 (2001), where a defendant was charged with operating an uninsured motor vehicle pursuant to section 3-707 of the Vehicle Code. The sole issue on appeal was whether the offense was an absolute liability offense. Section 3-707 at the time provided that “[n]o person shall operate a motor vehicle unless the motor vehicle is covered by a liability insurance policy ***.”
¶ 37 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
¶ 39 The less severe punishment for violating section 3-703 leads to the third reason we find the 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).
¶ 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
¶ 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, 2016 IL 118023, ¶¶ 10-11, 25. Accordingly, we affirm the circuit court‘s dismissal of Sroga‘s section 2-1401 petition.
¶ 42 III. CONCLUSION
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 44 Affirmed.