FOURTH DIVISION
May 22, 2003

Following a bench trial, defendant Paul McCormick was found guilty of aggravateddriving under the influence of alcohol (DUI) and felony driving with a revoked or suspendedlicense and sentenced, based on his criminal history, to an extended prison term of five years. Onappeal, defendant contends that he was not proven guilty beyond a reasonable doubt because theevidence was insufficient to support a finding that he was driving the vehicle at the time of hisarrest. He further contends that the trial court erred when it sentenced him to an extended termfor aggravated DUI.

BACKGROUND

Defendant's conviction arose from an incident on December 17, 2000, in whichdefendant was involved in a car accident with another vehicle.

At trial, Chicago police officer Patrick Rooney testified that he and his partner, OfficerThomas Barrett, were on a routine patrol at the time of the accident. While stopped at a red lightat 31st Street, facing southbound on Wentworth Avenue, Officer Rooney heard a collision. Helooked forward and saw two vehicles, a red car and a van, "spinning out." The vehicles wereacross the street, approximately 30 feet from Officer Rooney's police car. When the vehiclescame to a stop, Officer Rooney turned on his lights and sirens and proceeded through theintersection. Officer Rooney stated that he saw defendant exit the driver's side of the red car,walk around the car, stumble to the passenger's door, and enter the passenger's side of the car.

Officer Rooney initially saw defendant in the driver's seat when the police car was 5 to10 feet from the red car and there was nothing obstructing Officer Rooney's view. Whendefendant opened the passenger's side door, he pushed the woman in the passenger's seat andslid underneath her, but defendant could not close the door completely. Officer Rooneyapproached the car and described the woman as "handicapped," "a midget," and bleeding fromthe top of her head. Officer Rooney saw that the car's windshield was "spider webbed" on thepassenger's side where it appeared that the woman had hit her head. The police officers calledfor an ambulance and asked defendant to exit his car.

When defendant exited the car, Officer Rooney noticed that defendant had bloodshoteyes, slurred speech, smelled of alcohol, and stumbled, using cars for support. Defendant firsttold Officer Rooney that he was not hurt, but once defendant was placed under arrest, he said hewanted to go to the hospital. Defendant was taken to the hospital by ambulance and OfficerRooney arrived at the hospital later. In a conversation in the emergency room at 7 p.m.,defendant was read his Miranda rights, and he told Officers Rooney and Barrett that he had beendriving the car. Defendant admitted to drinking two beers, and he stated that he remembered thecollision.

Officer Rooney also met with Lisa McCauley, the female occupant of the car, at 7 p.m.while he was at the hospital. He noticed that she smelled of alcohol, her eyes were bloodshot,and her speech was slurred. Officer Rooney stated that he never saw McCauley in the driver'sseat of the car. Officer Rooney further stated that the occupants of the van involved in thecollision were treated at the hospital. He recalled that the driver's name was Ruben and therewere two civilian witnesses named Janice and Tysha.

On cross-examination, Officer Rooney stated that he did not see defendant driving priorto the accident. The first time Officer Rooney saw defendant, defendant was exiting the driver'sside of the car. Officer Rooney stated that he did not sign any accident reports. He did not seethe accident, but he stated that it occurred at dusk. Officer Rooney stated that he had looked atthe interior of the red car, but he did not look at the gas or brake pedals. He stated that McCauleywas sitting in the passenger's seat, sprawled out with her head toward the driver's seat, when hefirst saw her. When Officer Rooney asked McCauley about her injuries, she moaned withoutcommunicating an answer. Defendant did not admit to driving the car at the scene or when hewas initially asked following his arrest.

On redirect examination, Officer Rooney stated that defendant maintained he had notbeen driving the car when he was asked at the scene of the accident. Officer Rooney describeddefendant as being "very combative," yelling, and evading questions at the scene.

The parties stipulated that defendant was admitted to the hospital at 6:35 p.m. onDecember 17, 2000. A blood sample was collected within an hour of defendant's admission, andthe results of the testing indicated that defendant's blood-alcohol level was .231 grams perdeciliter.

The parties also stipulated that defendant was arrested on January 17, 1984, for drivingunder the influence of alcohol and he was placed on supervision for that violation. Defendantwas then arrested and convicted for driving under the influence of alcohol on September 6, 1987,June 21, 1991, and March 31, 1992. Defendant was also convicted of driving while his driver'slicense was suspended or revoked on March 31, 1992. On June 15, 1999, defendant was arrestedand convicted of driving on a revoked or suspended license.

The parties further stipulated that on the date of this collision, December 17, 2000,defendant's driver's license was revoked.

Chicago police officer Thomas Barrett testified for the defense that he was with OfficerRooney and he did not see the car accident occur. After the impact, Officer Barrett looked to thecar and saw defendant behind the wheel of the car. Officer Barrett prepared and signed theaccident report after speaking with defendant and McCauley. The report indicated that defendantwas a driver in the accident.

When Officer Barrett saw defendant run over to McCauley's side of the vehicle, heassumed that she was severely injured and defendant was assisting her. Officer Barrett statedthat McCauley was "highly intoxicated," and he described her as being a "very short midget,possibly a dwarf." When Officer Barrett first saw McCauley, she was on the passenger's side ofthe car. According to Officer Barrett, McCauley was "crushed into the seat" so that the firedepartment had to cut her out, and defendant was in the passenger's seat with McCauley. OfficerBarrett viewed the inside of defendant's car and did not notice any special equipment.

Officer Barrett stated that he spoke with the driver of the van involved in the collision. When Officer Barrett asked defendant if he had been driving, defendant denied driving.Defendant did not appear injured, and he did not tell Officer Barrett that he was injured, butdefendant left the scene in an ambulance.

Lisa McCauley testified that she was driving her own car at the time of the accident, anddefendant was a passenger. She further stated that defendant was her fiancé. She stated that hercar had extensions attached to the gas and brake pedals, which were bolted in place at the time ofthe accident. She stated that she never saw defendant drive her car and that a person ofdefendant's height could not safely drive a car with such adaptations. She stated that after theimpact, her body moved to the passenger's side of the car, landing on top of defendant. Shemaintained that she told the police officers several times that she was the driver.

On cross-examination, McCauley stated she was not wearing a seatbelt during theaccident. She stated that her head hit the windshield and then her upper body landed on thedashboard. McCauley said that she consumed two or three alcoholic beverages earlier in the day,around 2:30 p.m.

Defendant testified that he was a passenger in McCauley's car during the accident. Hestated that he exited the passenger's side of the car, walked around the car to the driver's side todislodge McCauley, and then he went "back around."

On cross-examination, defendant stated that he had at least two beers while he was homeprior to the accident and a few mixed drinks earlier with lunch in the mid-afternoon. Defendantstated that he spoke with police officers at the hospital, where he received pain medication for aninjured knee. He did not recall telling the police that he was driving "head-on" at the time of theaccident.

In rebuttal for the State, Janice Benson testified that she was a passenger in the secondrow of the van involved in the collision. Just prior to the collision, Benson saw a small womanin the passenger's seat of the car that the van collided with. Benson identified this woman incourt to be McCauley.

In surrebuttal for defendant, Ruben Reeves testified that he was the driver of the van, andhe could not positively say who was driving the car that collided with his van. He had seen thecar before the accident, and the car had been traveling eastbound on 31st Street. Reeves hadbeen driving westbound on 31st Street and he stopped to make a left turn. The car came straighttowards Reeves' van and nothing was blocking his view of the car.

In finding defendant guilty, the trial court stated that there was "no doubt *** that thedriver of the vehicle on December 17th was the defendant, as charged in the indictment." Thecourt relied on the testimony of Officer Rooney, and the circumstantial evidence of the brokenwindshield which it found to corroborate the State's position that McCauley was the passenger. It also relied on defendant's admission of drinking and driving provided at the hospital. Although Officer Rooney did not see defendant driving or behind the wheel, the court found itreasonable to infer that defendant had been driving the car. The stipulated evidence regardingdefendant's blood-alcohol level confirmed Officer Rooney's conclusion that defendant was underthe influence of alcohol.

Additionally, the trial court found that Officer Barrett corroborated the evidenceintroduced by the State. The trial court found that McCauley was "not credible at all" as she had"an obvious bias." Defendant's testimony was "absolutely incredible" in contrast to the physicalevidence, testimony of the two officers, and the testimony of Benson that McCauley had been inthe passenger's seat prior to the impact.

At the sentencing hearing, defendant presented witnesses in mitigation. The State offereddefendant's prior DUI violations into evidence, which under section 11-501(d)(1)(A) of theIllinois Vehicle Code (the Vehicle Code), enhanced the offense from a Class A misdemeanor to aClass 4 felony (625 ILCS 5/11-501(d)(1)(A) (West 2000)). The court then sentenced defendantto five years in prison, citing his "1997 Class 2 or greater felony conviction" for possession of astolen motor vehicle as the basis for the extended term.

ANALYSIS

Defendant contends that he was not proven guilty beyond a reasonable doubt because theevidence was insufficient to support a finding that he was driving the car involved in thecollision.

He argues that no rational trier of fact could have found beyond a reasonable doubt that he wasthe driver of McCauley's car.

In reviewing the sufficiency of the evidence, the relevant question is whether, consideringthe evidence in the light most favorable to the State, any rational trier of fact could have foundthe essential elements of the crime beyond a reasonable doubt. People v. Cox, 195 Ill. 2d 378,387, 748, 166 Ill. 2d 172 (2001). A reviewing court is not permitted to substitute its judgmentfor that of the trier of fact. People v. Ortiz, 196 Ill. 2d 236, 259, 752 N.E.2d 410, 424 (2001).

It is the function of the trier of fact to determine the credibility of the witnesses and the weight tobe given their testimony, to resolve conflicts in the evidence and to draw reasonable inferencesfrom the evidence. Ortiz, 196 Ill. 2d at 259, 752 N.E.2d at 424. Although the determinations ofthe trier of fact are not conclusive, they are entitled to great deference and a conviction will beoverturned only where the evidence "is so unreasonable, improbable, or unsatisfactory as tojustify a reasonable doubt of defendant's guilt." Ortiz, 196 Ill. 2d at 259, 752 N.E.2d at 424.

Here, the trial judge properly determined that Officer Rooney was a credible witnessbased on his trial testimony, and it accepted the inferences flowing from the State's evidence.Officer Rooney stated that he saw defendant exit the driver's side of the car and he saw that thewindshield was broken on the passenger's side. Officer Rooney's belief that defendant drove thecar and that McCauley was sitting in the passenger's seat was corroborated by defendant'sadmission, Officer Barrett's testimony, and the testimony of a passenger in the van. Viewing theevidence in a light most favorable to the prosecution, there was ample evidence from which atrier of fact could have found all of the essential elements of the crime beyond a reasonabledoubt.

Defendant next contends that the trial court erred in sentencing him to an extended termfor aggravated DUI. He argues that the sentence it imposed is in excess of that which is providedfor in section 11-501(d)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(2) (West 2000)),relying on People v. Mathews, 304 Ill. App. 3d 514, 520, 711 N.E.2d 435, 438 (1999). InMathews, the defendant was sentenced to an extended term of six years' imprisonment foraggravated DUI, and he argued that the language of section 11-501(d)(2) precluded extended-term sentencing for the offense of aggravated DUI.

Section 11-501(d)(2) provides in pertinent part:

"Aggravated driving under the influence of alcohol, otherdrug or drugs, or intoxicating compound or compounds, or anycombination thereof is a Class 4 felony for which a person, ifsentenced to a term of imprisonment, shall be sentenced to not lessthan one year and not more than 3 years for a violation ofsubparagraph (A), (B) or (D) of paragraph (1) of this subsection (d)and not less than one year and not more than 12 years for aviolation of subparagraph (C) of paragraph (1) of this subsection(d)." 625 ILCS 5/11-501(d)(2) (West 2000).

The Fifth District Appellate Court concluded that the language of section 11-501(d)(2) was clearand unambiguous. Mathews, 304 Ill. App. 3d at 519-20, 711 N.E.2d at 439. The court noted thatsection 11-501(d)(2) provides that aggravated DUI is a Class 4 felony "and then goes on tospecify a sentence range." Mathews, 304 Ill. App. 3d at 520, 711 N.E.2d at 439. The courtreasoned that this departure from the normal sentencing scheme, which is generally provided insection 5-8-1 of the Unified Code of Corrections (730 ILCS 5/5-8-1 (West 2000)), and theinclusion of a sentencing range within the Illinois Vehicle Code must mean that the legislatureintended that the sentence for the offense of aggravated DUI be different from that normallyapplicable to Class 4 felonies. Mathews, 304 Ill. App. 3d at 520, 711 N.E.2d at 439. Therefore,the court concluded that "[a] person guilty of aggravated DUI and sentenced to a term ofimprisonment shall be sentenced to a term of not less than one and not more than three years. The language of the statute precludes the imposition of an extended-term sentence." Mathews,304 Ill. App. 3d at 520, 711 N.E.2d at 439.

We believe the fifth district appellate court's holding that the legislature intended topreclude imposition of extended-term sentences for aggravated DUI creates an anomalousinterpretation of both section 11-501(d)(2) and the extended-term statute, and that when properlyviewed in the context of the entire sentencing scheme, section 11-501(d)(2) does not preclude theapplication of an extended-term sentence. See People v. Granados, 172 Ill. 2d 358, 666 N.E.2d1191 (1996) (supreme court affirmed extended-term sentence imposed upon defendant convictedof aggravated DUI due to prior felony convictions); People v. Niemeyer, 243 Ill. App. 3d 875,612 N.E.2d 975 (1993) (extended-term sentence was proper where defendant was convicted ofaggravated DUI and also had prior felony burglary conviction).

We agree with Mathews that the cardinal rule of statutory construction is to ascertain andgive effect to the intention of the legislature. People v. Woods, 193 Ill. 2d 483, 487, 739 N.E.2d493, 495 (2000). However, we do not agree that the mere fact that the sentencing range isdefined in the Vehicle Code clearly establishes that it precludes the imposition of an extended-term sentence. Instead, we are guided by the principle that where there is any ambiguity, statutesare to be read in pari materia, which means that two legislative acts that address the same subjectare to be considered with reference to one another, so that they may be given harmonious effect. Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414, 422, 781 N.E.2d 249, 254(2002). Thus, where both the Illinois Vehicle Code and the Uniform Code of Corrections areinstructive on the issue of sentencing, they must be read in pari materia as part of an overallsentencing scheme for aggravated DUI.

Section 11-501(d)(1)(A) of the Vehicle Code enhances a misdemeanor DUI offense toaggravated DUI if "the person committed a violation of this Section * * * for the third orsubsequent time." 625 ILCS 5/11-501(d)(1)(A) (West 2000). Section 11-501(d)(2) of theVehicle Code further provides that aggravated DUI is a Class 4 felony and specifically sets fortha sentencing range of not less than one year and not more than three years' imprisonment. 625ILCS 5/11-501(d)(2)(West 2000). Additionally, pursuant to section 5-5-3.2(b)(1) of our UnifiedCode of Corrections (730 ILCS 5/5-5-3.2(b)(1)(West 2000)), an extended-term sentence may beimposed when a defendant:

"[I]s convicted of any felony, after having been previouslyconvicted * * * of the same or similar class felony or greater classfelony, when such previous conviction has occurred within 10years after the previous conviction, excluding time spent incustody, and such charges are separately brought and tried andarise out of different series of acts." (Emphasis added). 730 ILCS5/5-5-3.2(b)(1)(West 2000).

In People v. Hicks, 164 Ill. 2d 218, 223, 647 N.E.2d 257, 260 (1995), our supreme court held thatthe plain language of the extended-term sentencing provision explicitly states that it applies to"any felony," and that the words "any felony" are broad in scope. The statutory provision makesno exception for felonies arising out of the Vehicle Code. Thus, once any felony offense hasbeen committed, the extended-term statutory provisions may be invoked. Under this analysis,unlike Mathews, both statutes are given effect and both function in a harmonious manner.

Furthermore, this statutory interplay is consistent with the objectives that underlie theenactment of the extended-term statute. As stated in Hicks, "[o]ur extended-term sentencingprovision is designed to increase the length of imprisonment, where the defendant has a criminalrecord of prior felonies, in order to punish and deter recidivist behavior." Hicks, 164 Ill. 2d at224, 647 N.E.2d at 260. There is nothing in this objective that is at odds with the inclusion ofaggravated DUI within the purview of the extended-term sentencing provision. Additionally,when construing a statute, courts must assume that the legislature did not intend an absurd result. People v. Bennett, 329 Ill. App. 3d 502, 517, 769 N.E.2d 117, 129 (2002). To exempt third andsubsequent DUI offenses from the possibility of an extended term sentence would give recidivistdrunk drivers assurances that no increased penalties could be incurred for any subsequentconvictions following a third DUI offense. The legislature could not have intended such a result.

The recent legislative amendments to section 11-501(d)(2) (Pub. Act. 92-420, effectiveAugust 17, 2001) lend further support to our holding. Under the amended statute, the legislaturehas deleted the language which provides that the sentence for a felony DUI conviction shall benot less than one and no more than three years. Speaking in support of the amendment, SenatorDillard explained:

"This amends the Vehicle Code by deleting language limiting asentence of a term of imprisonment for a felony DUI conviction toone to three years and makes certain defendants who are convictedof a felony DUI [are] eligible for an extended-term sentence. Whatwe're doing here is clarifying something that came out of anappellate court decision. This is an initiative of the DuPageCounty State's Attorney, and essentially we're trying to clarify whatI think a number of State's Attorneys believed was already the law. And there's been a limited reading by one appellate court, and wejust want to clarify it." 92nd Ill. Gen. Assem., SenateProceedings, May 15, 2001, at 81 (statements of Senator Dillard).

It is evident from these comments that the legislature never intended to preclude the impositionof extended-term sentences for aggravated DUI offenses and has sought to clarify any ambiguityor misreading of section 11-501(d)(2).

Lastly, we note that defendant was convicted on all five counts in the indictment,including felony driving with a revoked or suspended license pursuant to section 6-303 of theVehicle Code. 625 ILCS 5/6-303 (West 2000). That section, like section 11-501(d)(1)(A),enhances the offense to a Class 4 felony, but unlike section 11-501(d)(2), does not specify asentencing range. Thus, had the trial court chosen to sentence defendant for felony driving with arevoked or suspended license, there would be no question that he would be eligible for anextended-term sentence. We see no rational reason why the legislature would allow extended-term sentencing to apply to felony driving with a revoked or suspended license, but preclude itsimposition for aggravated DUI.

For all of these reasons, we disagree with the limited decision by the Fifth DistrictAppellate court in Mathews. Rather, we hold that where there is no dispute that defendant wasconvicted of aggravated DUI, a Class 4 felony, and that he had previously been convicted ofpossession of a stolen motor vehicle, a Class 2 felony, within the last 10 years, he was eligible foran extended-term sentence of not less than three years and not more than six years. 730 ILCS5/5-5-3.2(b)(1), 5/5-8-2 (West 2000). Thus, his five-year sentence was properly imposed by thetrial court.

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

HARTMAN and KARNEZIS, J.J., concur.