Docket No. 104558.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT T. LUCAS, JR., Appellant.
Opinion filed October 17, 2008.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Following a jury trial in the circuit court of Bureau County,
defendant, Robert T. Lucas, Jr., was convicted of driving while his
driver’s license was revoked (625 ILCS 5/6–303(d) (West 2004)),
unlawful use of a weapon by a felon (720 ILCS 5/24–1.1(a) (West
2004)), and armed violence (720 ILCS 5/33A–2(a) (West 2004)). The
appellate court affirmed defendant’s convictions and sentences. 372
Ill. App. 3d 279.
BACKGROUND
Count I of the indictment, charging defendant with driving while
license revoked, subsequent offense, alleged that on May 1, 2005,
defendant drove his motor vehicle while his driver’s license was
revoked, “said revocation having been entered on December 27,
1983, as a result of a conviction of Driving While Under The
Influence of Alcohol, and the defendant had been previously
convicted of [driving while license revoked] on August 26, 1987 in
Bureau County Cause Number 87–TR–2961.” Count II of the
indictment charged defendant with unlawful possession of a weapon
by a felon, based on defendant’s possession of a switchblade knife.
Count III charged defendant with armed violence, alleging that he,
while armed with a dangerous weapon, committed driving while
license revoked, subsequent offense, a Class 4 felony.
At defendant’s trial, the evidence showed that Deputy Gary
Becket observed a car twice cross the center line of the street. Becket
activated his emergency lights, but the car did not stop. Instead, the
driver continued driving for a short distance, eventually pulling into
the driveway of a residence. A man Becket recognized as defendant
exited the car and ran around to the back of the house. When
defendant did not obey Becket’s shouted command to stop, Becket
gave chase. Becket did not see defendant when he arrived at the rear
of the house. He knocked on the door of the house and Richard
Yuvan answered. Although Yuvan had in fact allowed defendant into
his house, he told Becket that he and his wife, Susan, were the only
people in the house. At that point, Susan appeared and told Becket
that defendant was in the house and she wanted him out.
Prior to entering the house, Becket called for back-up. When
Deputy Patrick Linder arrived, he and Becket went into the house.
Susan told the officers that defendant had locked himself in the
bathroom. After the officers ordered defendant out of the bathroom,
they heard the toilet flush. Then defendant emerged. The officers
observed various items on the bathroom vanity, including money, cell
phones, and a lighter. The officers declined defendant’s request to
keep his lighter. When they examined the lighter, they discovered that
it housed a spring-loaded switchblade knife. Becket acknowledged
that he had no direct evidence that the knife had been in defendant’s
car. However, Richard and Susan Yuvan testified that the knife was
not theirs, they had never seen it before, and it was not in the
bathroom before defendant arrived at their home that night.
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Defendant presented no evidence. The jury convicted him on all
charges.
At the sentencing hearing, the State introduced into evidence a
certified copy of defendant’s driving abstract, showing that in 1983,
defendant was convicted of driving under the influence of alcohol.
His driver’s license was revoked later that year. He was convicted in
1987 of driving while license revoked. His license was reinstated in
1996. Defendant was again convicted of driving under the influence
of alcohol in 1997 and his license was revoked that same year. That
revocation remained in effect on the date of his arrest in the instant
case. Based upon this record, the prosecutor asked the circuit court to
find that defendant committed the offense of driving while license
revoked, subsequent offense. The prosecutor noted that defendant’s
“prior record was not proved up to the jury by operation of Illinois
law which prevents a jury from knowing about the prior convictions
for driving While License Revoked. We’re asking the court to make
that proper finding today so we can proceed to sentencing on that
offense.” The circuit court made the requested finding and sentenced
defendant to concurrent terms of 30 years’ imprisonment on the
armed violence conviction and 5 years’ imprisonment on the unlawful
possession of a weapon conviction.
Defense counsel filed a posttrial motion and a motion to
reconsider sentence, both of which the circuit court denied.
On appeal, defendant argued, inter alia, that driving while license
revoked, subsequent offense, cannot be used as a predicate felony for
a charge of armed violence. He argued that the enhancement of
driving while license revoked from a misdemeanor to a felony was
intended for sentencing purposes only. The appellate court relied on
the plain language of the armed violence statute in rejecting
defendant’s argument, holding that the phrase “any felony”
encompassed all felonies not specifically excluded by the statute.
Defendant also argued that the prosecution had failed to prove him
guilty of all the elements of driving while license revoked, subsequent
offense, noting that the State had not proved to the jury defendant’s
prior conviction, which elevated his offense to a felony. The appellate
court noted that the State was prevented from presenting such proof
to the jury by section 111–3(c) of the Code of Criminal Procedure of
1963 (Procedure Code) (725 ILCS 5/111–3(c) (West 2004)), which
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provides that the fact of a prior conviction of the charged offense and
the State’s intention to seek an enhanced sentence are not elements of
the offense and may not be disclosed to the jury during trial. The
court noted that this section applies only when the classification of
the offense is to be raised due to the prior conviction. In this case, the
classification of defendant’s offense was raised from a Class A
misdemeanor to a Class 4 felony by reason of his prior conviction.
Accordingly, section 111–3(c) applied. 372 Ill. App. 3d at 285.
We granted defendant’s petition for leave to appeal. 210 Ill. 2d R.
315.
ANALYSIS
Defendant makes two arguments in this appeal: (1) he was
improperly convicted of armed violence based on driving while
license revoked, subsequent offense; and (2) his armed violence
conviction and 30-year prison sentence violate the proportionate
penalties clause of the Illinois constitution (Ill. Const. 1970, art. I,
§11). We address only the first argument.
I
The issue of whether the offense of driving while license revoked,
subsequent offense, may serve as a predicate felony under the armed
violence statute involves the interpretation of Illinois statutes, which
is a question of law, which we review de novo. See People v.
Caballero, 228 Ill. 2d 79, 82 (2008). In addition, because the facts are
not in dispute, the question of whether defendant’s guilt of driving
while license revoked, subsequent offense, was established is a
question of law subject to de novo review. People v. Smith, 191 Ill. 2d
408, 411 (2000).
II
Initially, the State argues that defendant is estopped from
challenging his armed violence conviction on the ground that driving
while license revoked, subsequent offense, cannot be a predicate
felony because he did not preserve this argument for review. Indeed,
notes the State, defendant’s trial counsel affirmatively agreed that
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defendant did commit the offense of armed violence. What the State
is really arguing is that defendant invited the alleged error. The
doctrine of invited error is sometimes referred to as “estoppel.”
People v. Harvey, 211 Ill. 2d 368, 385 (2004). Under the doctrine of
invited error, a defendant “ ‘may not request to proceed in one
manner and then later contend on appeal that the course of action was
in error.’ ” Harvey, 211 Ill. 2d at 385, quoting People v. Carter, 208
Ill. 2d 309, 319 (2003). Here, the State’s only citation to the record
references the sentencing hearing. There, trial counsel did tell the
judge that what defendant did constituted armed violence. However,
the State does not point to anyplace in the record showing that
defendant’s trial counsel made any such concession during trial.
Therefore, we reject the State’s argument.
The State also argues that defendant forfeited the issue that he
was wrongly convicted of driving while license revoked, subsequent
offense, for armed violence purposes. We note that the State admits
it failed to raise the issue of forfeiture in the appellate court. The
doctrine of forfeiture applies to the State as well as to the defendant
and the State may forfeit an argument that the defendant forfeited an
issue by not properly preserving it for review. People v. Williams, 193
Ill. 2d 306, 347 (2000). In addition, we note that one of defendant’s
arguments is that the State failed to prove him guilty of driving while
license revoked, subsequent offense, beyond a reasonable doubt. Such
arguments are not subject to the normal rules of forfeiture and may be
raised for the first time on appeal. People v. Walker, 7 Ill. 2d 158, 160
(1955). Accordingly, we will address defendant’s arguments.
The armed violence statute provides in pertinent part as follows:
“(a) A person commits armed violence when, while armed
with a dangerous weapon, he commits any felony defined by
Illinois Law, except first degree murder, attempted first
degree murder, intentional homicide of an unborn child,
predatory criminal sexual assault of a child, aggravated
criminal sexual assault, aggravated kidnaping, aggravated
battery of a child, home invasion, armed robbery, or
aggravated vehicular hijacking.” 720 ILCS 5/33A–2(a) (West
2004).
In the 1980s, this court interpreted the language of the armed
violence statute to exclude certain types of felony offenses. At that
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time, the statute provided that a defendant committed armed violence
when, “while armed with a dangerous weapon, he commits any felony
defined by Illinois Law.” Ill. Rev. Stat. 1979, ch. 38, par. 33A–2. In
People v. Haron, 85 Ill. 2d 261 (1981), this court found that the
General Assembly did not intend the phrase “any felony” to include
a predicate felony that was itself enhanced from a misdemeanor to a
felony by the presence of a weapon. The defendant there had been
convicted of armed violence predicated on aggravated battery. The
battery offense was enhanced due to the defendant’s use of a deadly
weapon. This court found the armed violence charge to be an
impermissible double enhancement. Haron, 85 Ill. 2d at 278.
In People v. Alejos, 97 Ill. 2d 502 (1983), the defendant was
convicted of armed violence predicated on voluntary manslaughter.
This court agreed with the defendant that the legislature did not
intend armed violence to apply to voluntary manslaughter. The court
noted that voluntary manslaughter is an unpremeditated offense,
induced by sudden fear or duress and committed without time for
proper reflection. We looked to the purpose of the armed violence
statute, which was “ ‘to respond emphatically to the growing
incidence of violent crime.’ ” Alejos, 97 Ill. 2d at 507-08, quoting
People v. Graham, 25 Ill. App. 3d 853, 858 (1975). We further noted
that the “stiff punishment” mandated by the armed violence statute
was intended not only to punish the wrongdoer and protect society,
but also to deter the proscribed conduct, i.e., carrying a weapon while
committing a felony. Alejos, 97 Ill. 2d at 509. Because voluntary
manslaughter is committed on the spur of the moment and without
deliberation, the statute cannot fulfill its deterrence function. We
rejected the State’s argument that we could not depart from the plain
language of “any felony” in the statute, observing that a court may
determine the intent of the legislature not only from the language of
the statute, but also from the reason and necessity for the statute, the
evils to be remedied, and the objects and purposes to be obtained. We
also noted the rule of lenity and found its application to be
appropriate where the carrying of a weapon is not a criminal offense
in all instances and the armed violence statute would be unlikely to
deter those who commit voluntary manslaughter. Alejos, 97 Ill. 2d at
512-13.
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We addressed similar arguments in People v. Fernetti, 104 Ill. 2d
19 (1984). Relying on our decision in Alejos, we held that application
of the armed violence statute to the offense of involuntary
manslaughter would not further the intent of the statute. Involuntary
manslaughter is, by its very nature, unintentional. Thus, the
deterrence purpose of the armed violence statute would not be served
by the inclusion of involuntary manslaughter within the phrase “any
felony.” Fernetti, 104 Ill. 2d at 24-25.
Defendant argues that, although driving while license revoked,
subsequent offense, is not an undeterrable offense, it nonetheless
should not be considered a predicate felony under the armed violence
statute because to do so would not serve the purposes of that statute.
Defendant notes that the conduct prohibited by the driving while
license revoked statute, i.e., driving, is not made more dangerous by
the presence of a weapon. Driving is legal when done by the vast
majority of licensed drivers; defendant notes that the only difference
among legal driving, misdemeanor driving while license revoked, and
driving while license revoked, subsequent offense, is the state of the
driver’s driving record.
Defendant also argues that the State failed to prove him guilty
beyond a reasonable doubt of the offense of driving while license
revoked, subsequent offense. He notes that the State was, in fact,
precluded from doing so by section 111–3(c) of the Procedure Code,
which provides:
“When the State seeks an enhanced sentence because of
a prior conviction, the charge shall also state the intention to
seek an enhanced sentence and shall state such prior
conviction so as to give notice to the defendant. However, the
fact of such prior conviction and the State’s intention to seek
an enhanced sentence are not elements of the offense and may
not be disclosed to the jury during trial unless otherwise
permitted by issues properly raised during such trial. For the
purposes of this Section, “enhanced sentence” means a
sentence which is increased by a prior conviction from one
classification of offense to another higher level classification
of offense set forth in Section 5–5–1 of the ‘Unified Code of
Corrections’, approved July 26, 1972, as amended; it does not
include an increase in the sentence applied within the same
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level of classification of offense.” 725 ILCS 5/111–3(c) (West
2004).
The State argues that the language of the armed violence statute
is clear and unambiguous. The statute expressly excludes 10 felonies
from its operation. Any felonies not excluded may therefore serve as
predicate felonies. The State criticizes defendant’s reliance on Haron,
Alejos, and Fernetti, all of which predate the current version of the
armed violence statute. With respect to defendant’s argument that he
was not proved guilty beyond a reasonable doubt of driving while
license revoked, subsequent offense, the State notes that it was
precluded from doing so at the trial by section 3–111(c) of the
Procedure Code. Nonetheless, the State believes that defendant was
properly convicted of driving while license revoked, subsequent
offense, noting that section 6–303(d) of the Illinois Vehicle Code
(625 ILCS 5/6–303(d) (West 2004)) provides that any person
convicted of a second violation of driving while license revoked shall
be guilty of a Class 4 felony if the revocation or suspension was for
a violation of certain enumerated offenses.
After careful consideration, we agree with defendant that driving
while license revoked, subsequent offense, may not serve as a
predicate felony under the armed violence statute.
Due process requires that to sustain a conviction of a criminal
offense, the State must prove a defendant guilty beyond a reasonable
doubt of the existence of every element of the offense. Jackson v.
Virginia, 443 U.S. 307, 316, 61 L. Ed. 2d 560, 571, 99 S. Ct. 2781,
2787 (1979). To prove a defendant guilty of the offense of armed
violence, the State must prove beyond a reasonable doubt that the
defendant committed a felony not excluded by the armed violence
statute and that, while committing the felony, the defendant was
armed with a dangerous weapon. In the instant case, therefore, the
State was required to prove that defendant committed the offense of
driving while license revoked at a time when his driver’s license had
been previously revoked due to a conviction for driving under the
influence of alcohol or drugs. The State, however, only proved
defendant guilty of misdemeanor driving while license revoked at his
trial. The jury instructions confirm this. The jury was told that, to
sustain the charge of armed violence, the State must prove (1) that
defendant committed the offense of driving while license revoked,
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and (2) that when defendant committed the offense, he was
knowingly carrying on or about his person or was otherwise armed
with a switchblade knife. The jury was further told that to sustain the
charge of driving while license revoked, the State must prove (1) that
defendant knowingly drove a motor vehicle on a highway of this
state, and (2) that at the time defendant drove a motor vehicle, his
driver’s license was revoked as provided by Illinois law or by the law
of another state. The conduct described by this last instruction
constitutes the offense of misdemeanor driving while license revoked,
under section 6–303(a) of the Vehicle Code (625 ILCS 5/6–303(a)
(West 2004)), which provides in relevant part:
“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 the law of another
state, except as may be specifically allowed by a judicial
driving permit, family financial responsibility driving permit,
probationary license to drive, or a restricted driving permit
issued pursuant to this Code or under the law of another state,
shall be guilty of a Class A misdemeanor.” 625 ILCS
5/6–303(a) (West 2004).
The State, however, points out that section 6–303(d) of the
Vehicle Code describes the offense of driving while license revoked,
subsequent offense, and provides that any person convicted of a
second violation of that section is guilty of a Class 4 felony. The State
relies on this provision to argue that defendant was properly
convicted of driving while license revoked, subsequent offense. The
State argues it was prevented by section 111–3(c) of the Procedure
Code from presenting proof at defendant’s trial that he had a prior
qualifying conviction and, thus, that he was guilty of a Class 4 felony.
To the extent the State suggests that section 6–303(d) of the
Vehicle Code provides an independent basis on which to convict
defendant of the Class 4 felony of driving while license revoked,
subsequent offense, we reject that argument. We observe that there
are no pattern jury instructions for the offense of driving while license
revoked, subsequent offense. While at one time there were
instructions defining that offense (Illinois Pattern Jury Instructions,
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Criminal, No. 23.41 (4th ed. 2000) (hereinafter IPI Criminal 4th)) and
setting forth the issues for that offense (IPI Criminal 4th No. 23.42),
those instructions have been deleted. The committee comments to
those instructions note the existence of section 3–111(c) of the
Procedure Code and state that the committee “no longer believes that
instructions on this offense are appropriate because of its reliance on
a defendant’s prior convictions.”
Instead, section 6–303(d) of the Vehicle Code, read together with
section 3–111(c) of the Procedure Code, provides the basis for
enhanced sentencing of defendants who commit driving while license
revoked, subsequent offense. Neither section 3–111(c) nor section
6–303(d) operates independently. Section 3–111(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 3–111 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. Therein lies the problem. Section 111–3(c)
applies where the State seeks an enhanced sentence due to a prior
conviction. “Enhanced sentence” means a sentence that is increased
by a prior conviction from one classification of offense to another
higher classification of offense. 725 ILCS 5/111–3(c) (West 2004).
Section 111–3(c) prohibits the use at trial of the fact of the prior
conviction or the State’s intent to seek an enhanced sentence. They
are not elements of the offense and may not be disclosed to the jury.
The existence of the prior conviction is used after a defendant’s
conviction to increase the classification of the crime at sentencing.
People v. DiPace, 354 Ill. App. 3d 104, 114 (2004). However, in this
situation where the State wishes to prove defendant guilty of driving
while license revoked, subsequent offense, for the purpose of using
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that offense as a predicate felony for armed violence purposes, it
cannot do so because of the constraints of section 111–3(c).
A conflict exists among the armed violence statute, which
requires the State to prove a defendant guilty beyond a reasonable
doubt of a predicate felony, section 6–303(d) of the Vehicle Code,
which makes defendant’s driving while license revoked offense a
Class 4 felony, and section 3–111(c) of the Procedure Code, which
prevents the State from proving defendant guilty of a felony where an
offense such as driving while license revoked, subsequent offense, is
sought to be used as the predicate felony.
Where statutes are in conflict, a reviewing court has a duty to
interpret the statutes in a manner that both avoids an inconsistency
and gives effect to each statute, where this is reasonably possible.
Barragan v. Casco Design Corp., 216 Ill. 2d 435, 441-42 (2005). We
find that it is not possible to give effect to all three statutes under the
facts of this case. The statutes cannot be reconciled, as they are
fundamentally at odds with each other. The armed violence statute
requires that the State prove defendant committed a felony not
excluded by the statute; although section 6–303(d) of the Vehicle
Code makes defendant’s offense a Class 4 felony, section 3–111(c)
of the Procedure Code prevents the State from proving all elements
of that felony. We reject the State’s argument that it was somehow
excused by section 3–111(c) from proving defendant guilty beyond
a reasonable doubt of all elements of the predicate felony for armed
violence purposes. As we have stated, due process requires that a
defendant be proved guilty beyond a reasonable doubt of every
element of an offense to secure a conviction of that offense. The jury
here found defendant guilty of armed violence, based on
misdemeanor driving while license revoked. However, no such
offense exists in our criminal code.
Nonetheless, citing Almendarez-Torres v. United States, 523 U.S.
224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), and Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the
State argues that the United States Supreme Court has held that due
process does not require the fact of a prior conviction to be proved to
a jury beyond a reasonable doubt when the State is seeking to enhance
a defendant’s sentence. Neither Almendarez-Torres nor Apprendi is
applicable here. Those cases involved the question of whether the
defendants could be sentenced to prison terms beyond the statutory
maximum by the use of enhancing factors that were not presented to
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the jury and proved beyond a reasonable doubt, but were determined
by the trial judge by a preponderance of the evidence. There was no
question in either case that the defendants were convicted of valid
offenses; only their sentences were in question. Here, defendant’s
prior convictions were not used to enhance his sentence from a Class
A misdemeanor to a Class 4 felony. The prior convictions were used
for the purpose of increasing the classification of defendant’s driving
while license revoked offense to a felony so that it would support a
conviction of armed violence. For the reasons we have stated, this
was impermissible. We, therefore, conclude that under our current
statutory scheme, driving while license revoked, subsequent offense,
may not serve as a predicate felony to support a charge of armed
violence.
Due to our disposition of this case, it is unnecessary to reach the
remainder of the issues raised by defendant.
CONCLUSION
For the reasons stated, we hold that defendant was not properly
convicted of armed violence based upon driving while license
revoked, subsequent offense, and that said offense may not serve as
a predicate felony under the armed violence statute. Accordingly, we
vacate defendant’s armed violence conviction. We affirm defendant’s
conviction and sentence for unlawful possession of a weapon by a
felon. We conclude that the evidence was sufficient to convict
defendant of driving while license revoked and that his sentence may
properly be enhanced due to his prior convictions. Because the circuit
court did not impose any sentence on the driving while license
revoked conviction, we remand to that court for the purpose of
imposing a sentence pursuant to section 111–3(c) of the Procedure
Code.
Appellate court judgment reversed
in part and affirmed in part;
circuit court judgment vacated
in part and affirmed in part;
cause remanded.
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