People v. Davis
State: Illinois
Court: 5th District Appellate
Docket No: 5-94-0386
Case Date: 02/20/1997
Rule 23 Order filed
January 24, 1997;
Motion to publish granted
February 20, 1997. NO. 5-94-0386
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 94-CF-41
)
JOEL E. DAVIS, ) Honorable
) William A. Schuwerk,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE RARICK delivered the opinion of the court:
Defendant, Joel Davis, was charged in the circuit court of
Randolph County with improper lane usage, illegal transportation of
alcohol, and driving at a time when his license was revoked because
of a prior conviction for driving under the influence of alcohol,
after he had previously been convicted of driving while his license
was suspended. At Davis's bench trial the State dismissed the
illegal transportation of alcohol charge, and Davis stipulated to
the facts on the improper lane usage and that he had operated a
motor vehicle at a time when his license was revoked for driving
under the influence of alcohol. Davis argued, however, that he was
guilty only of misdemeanor driving while license revoked, rather
than felony driving while license revoked, because his suspension
was pursuant to section 11-501.1 of the Illinois Vehicle Code
(Vehicle Code) (625 ILCS 5/11-501.1 (West 1994)) and was not one of
the elements which could be used to enhance the offense of driving
while license revoked to a felony. The trial court disagreed and
found Davis guilty of the felony charge. Davis was sentenced to,
inter alia, a two-year term of conditional discharge.
On appeal, Davis first argues that his stipulated bench trial
was tantamount to a guilty plea and that the trial court was
therefore required to admonish him pursuant to Supreme Court Rule
402 (134 Ill. 2d R. 402). Davis contends that because the trial
court failed to so admonish him, his conviction violated his right
to due process and must be reversed.
In People v. Horton, 143 Ill. 2d 11, 570 N.E.2d 320 (1991),
our supreme court addressed the issue of when a stipulated bench
trial was tantamount to a guilty plea and when Rule 402
admonishments were required. The defendant in Horton was charged
with three counts of armed robbery and two counts of aggravated
battery. Prior to trial the defendant filed a motion to suppress
identification evidence and quash his arrest. This motion was
denied and the defendant subsequently filed a motion to sever the
multiple counts against him because the charges arose from three
separate incidents. This motion was granted. During the pretrial
hearing before the defendant's first stipulated bench trial,
defense counsel stated that the purpose of the stipulated bench
trial was "to preserve a prior motion to quash arrest and suppress
identification ***," and defense counsel stated that the defendant
was not contesting the sufficiency of the evidence" (emphasis added
by Horton court). Horton, 143 Ill. 2d at 16, 570 N.E.2d at 322.
After trial and during closing argument, defense counsel stated,
"The defendant[] [is] not contesting the sufficiency of the
evidence to convict ***" (emphasis added by Horton court), and "The
purpose of the stipulation is to preserve appeal on the previously
denied motions to quash arrest and suppress the lineup." Horton,
143 Ill. 2d at 17, 570 N.E.2d at 322. During the defendant's
second stipulated bench trial, defense counsel stated that the
defendant acknowledged that there was sufficient evidence to
convict him of armed robbery and aggravated battery. Horton, 143
Ill. 2d at 17, 570 N.E.2d at 322.
Our supreme court held that the defendant's first stipulated
bench trial was not tantamount to a guilty plea, but that the
second one was, and that Rule 402 admonishments were therefore
required. With respect to the first stipulated bench trial, our
supreme court noted that while defense counsel stipulated to the
sufficiency of the evidence, he did not stipulate to the
sufficiency of the evidence to convict. The court expressed its
belief that counsel realized that the defendant's only viable
defense theory was the suppression of the identification, and that
he opted to proceed through a stipulated bench trial, thereby
enjoying the benefits and conveniences of a guilty plea procedure
without waiving the suppression issue. In so holding, the court in
Horton adopted the rule that a stipulated bench trial is not
tantamount to a guilty plea if the defendant preserved and
presented a defense. Horton, 143 Ill. 2d at 22, 570 N.E.2d at 324-
25.
In Horton, with respect to the defendant's second stipulated
bench trial, the court found that defense counsel not only conceded
the sufficiency of the evidence but in fact stipulated to the
sufficiency of the evidence to convict. "Thus," the court stated,
"even though defendant presented and preserved a defense in his
second stipulated bench trial, Smith applies and defendant should
have `be[en] afforded the protections set forth in Rule 402.' See
[People v.] Smith [(1974)], 59 Ill. 2d [236,] 243, 319 N.E.2d 760."
Horton, 143 Ill. 2d at 22, 570 N.E.2d at 325.
In the present case, the following exchange took place during
Davis's bench trial:
"THE PROSECUTOR: I guess it's -- I guess the point of the
hearing is that while he is guilty of the misdemeanor driving
while license revoked, the defendant's contention is he is not
guilty of felony driving while license revoked because it
can't be elevated for the driving while license suspended
conviction.
THE COURT: Okay. Well, here. Let me state it and then you
tell me if this is the stipulation between the two of you.
That on February 7th of '94, the defendant, Joel Davis,
operated a motor vehicle in the 100 block of South Maple
Street in Sparta, Randolph County, Illinois, at a time when
the defendant's license, permit, or privilege to operate a
motor vehicle was revoked because of a conviction for
operating a motor vehicle while under the influence of
alcohol.
Are you stipulating to that, [defense counsel]?
DEFENSE COUNSEL: Yes.
THE COURT: State stipulating to that fact?
THE PROSECUTOR: Yes, your Honor.
THE COURT: Okay. Now I take it --
THE PROSECUTOR: And also the improper lane usage,
that he committed the offense of improper lane
usage at that time.
THE COURT: That he was driving outside the proper
lane he should have been in.
DEFENSE COUNSEL: Yes. Well, he was driving the
wrong way on a one-way street.
THE COURT: All right. Okay. Is that the full
effect of the stipulation then?
DEFENSE COUNSEL: Yes."
It is apparent from the foregoing exchange that Davis did not
stipulate that the evidence was sufficient to convict, although
neither did he object when the prosecutor stated that Davis was
stipulating that he was guilty of a misdemeanor. Reviewing the
record, however, it is clear that Davis did not present or preserve
any defense. The sole issue presented was whether a prior summary
suspension could be used to enhance the offense of driving while
license revoked to a felony. The State contends that the prior
suspension was an element of the offense of "felony driving while
license revoked." The State's position is without merit. The
elements of the offense of driving while license revoked are set
forth in section 6-303(a) of the Vehicle Code, and the felony-
enhancement factors in section 6-303(d) are not elements thereof.
625 ILCS 5/6-303(a),(d) (West 1994); see People v. Bowman, 221 Ill.
App. 3d 663, 583 N.E.2d 114 (1991).
It is evident from the record that Davis conceded the
sufficiency of the evidence to convict him of the offense of
driving while license revoked. The only issue contested was
whether he was guilty of a misdemeanor or a felony. We conclude
that his stipulated bench trial was tantamount to a guilty plea and
that Rule 402 admonishments were therefore required. The necessary
admonishments were not given, nor did the trial court substantially
comply with Rule 402. See People v. Bond, 257 Ill. App. 3d 746,
629 N.E.2d 197 (1994); People v. Jones, 212 Ill. App. 3d 570, 571
N.E.2d 278 (1991).
Davis next argues that his felony conviction must be vacated
and the cause must be remanded for resentencing on a misdemeanor,
because at the time of the offense statutory summary suspension was
not a felony-enhancing factor. Our disposition of his first
argument makes it unnecessary to address this issue, but we choose
to do so nevertheless.
The offense in question occurred on February 7, 1994. At that
time section 6-303 of the Vehicle Code provided in subsection (a):
"Any person who 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 or the
privilege to obtain a driver's license or permit is revoked or
suspended as provided by this Code or any other law *** shall
be guilty of a Class A misdemeanor." 625 ILCS 5/6-303(a)
(West 1992).
Subsection (d) provided:
"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, or a similar provision
of a local ordinance, or a violation of Section 9-3 of the
Criminal Code of 1961, as amended, relating to the offense of
reckless homicide." 625 ILCS 5/6-303(d) (West 1992).
Section 11-401 of the Vehicle Code prohibits leaving the scene of
an accident involving death or personal injury (625 ILCS 5/11-401
(West 1994)), and section 11-501 of the Vehicle Code prohibits
driving under the influence of alcohol and/or drugs (625 ILCS 5/11-
501 (West 1994)).
Davis maintains that at the time the offense, his license was
suspended pursuant to section 11-501.1 of the Vehicle Code, which
provides for statutory summary suspension (625 ILCS 5/11-501.1
(West 1994)), and that suspension pursuant to section 11-501.1 was
not one of the factors which could enhance the offense to a felony.
Davis advanced this argument to the trial court; but the trial
court rejected it, concluding that the term "suspension" in section
6-303(d) must necessarily relate to statutory summary suspension.
The trial court reasoned that because a conviction under either
section 11-401 or section 11-501 of the Vehicle Code or section 9-3
of the Criminal Code mandated revocation, the reference to
"suspension" in section 6-303(d) must necessarily apply to
statutory suspension. The trial court's analysis was incomplete,
however, in that it failed to consider the "or a similar provision
of a local ordinance" language in section 6-303. The legislature
could well have anticipated that a local government might enact an
ordinance similar to sections 11-401 and/or 11-501 of the Vehicle
Code and provide for suspension as a penalty for a violation
thereof.
Reference to a prior suspension for a violation of section 11-
501.1 of the Vehicle Code was added to section 6-303(d) as an
enhancing factor, effective January 1, 1995. The State maintains
that the amendment adding the reference to section 11-501.1 was
merely a clarification of existing law rather than a change in the
law. Subsection (d) was added to section 6-303 by Public Act 84-
272, effective January 1, 1986. At that time section 11-501.1 and
the provisions therein relating to statutory summary suspension
were in existence, but the legislature saw fit not to include a
prior suspension for a violation of section 11-501.1 as one of the
enhancing factors in section 6-303(d). Subsequent to the addition
of subsection (d), section 6-303 was amended by Public Act 84-1394,
effective September 18, 1986, and by Public Act 88-383, effective
January 1, 1994. In both instances, the legislature had the
opportunity to "clarify" the law but declined to do so. The
references to statutory summary suspension were added to
subsections (c) and (d) of section 6-303 by Public Act 88-680,
effective January 1, 1995. Nothing in either Public Act 85-680 or
the floor debates thereon indicates that the purpose of such
additions was to "clarify" the law. This legislative history
demonstrates that the exclusion of a reference to section 11-501.1
from section 6-303(d) prior to January 1, 1995, was not an
oversight but rather was a conscious and deliberate decision by the
legislature.
For the foregoing reasons, the judgment of the circuit court
of Randolph County is reversed, and the cause is remanded for a new
trial.
Reversed and remanded.
WELCH, J., and MAAG, J., concur. NO. 5-94-0386
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 94-CF-41
)
JOEL E. DAVIS, ) Honorable
) William A. Schuwerk,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________
Rule 23 Filed: January 24, 1997
Motion to Publish Granted: February 20, 1997
Opinion Filed: February 20, 1997
___________________________________________________________________________
Justices: Honorable Philip J. Rarick, J.
Honorable Thomas M. Welch, J.
Honorable Gordon E. Maag, J.
Concur
___________________________________________________________________________
Attorneys Daniel M. Kirwan, Deputy Defender; Larry R. Wells, Assistant
for Defender; Office of the State Appellate Defender, Fifth
Appellant Judicial District, Route 15 East, P. O. Box 2430, Mt.
Vernon, IL 62864
___________________________________________________________________________
Attorneys Hon. Darrell Williamson, State's Attorney, Randolph County
for Courthouse, Chester, IL 62233
Appellee
Norbert J. Goetten, Director; Stephen E. Norris, Deputy
Director; Craig J. Jensen, Of Counsel; Office of the State's
Attorneys Appellate Prosecutor; Route 15 East, P. O. Box
2249, Mt. Vernon, IL 62864
___________________________________________________________________________
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