People v. Isaacson

NO. 4-09-0965 Opinion Filed 5/20/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
DANIEL PAUL ISAACSON, ) No. 09CF426
Defendant-Appellant. )
) Honorable
) Paul G. Lawrence,
) Judge Presiding.
_________________________________________________________________

JUSTICE TURNER delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice Cook concurred in
the judgment and opinion.

OPINION
In May 2009, a grand jury indicted defendant, Daniel

Paul Isaacson, with one count of driving while license suspended

in violation of section 6-303(a) of the Illinois Vehicle Code

(Vehicle Code) (625 ILCS 5/6-303(a) (West 2008) (text of section

effective until June 1, 2009)), as increased to a Class 4 felony

under section 6-303(c-3) of the Vehicle Code (625 ILCS 5/6-303(c-

3) (West 2008) (text of section effective until June 1, 2009)).

In August 2009, defendant filed a motion to dismiss the indict-

ment, asserting he could not have violated section 6-303(c-3)

because he was ineligible for a monitoring device driving permit

(MDDP) when he drove during his summary suspension. After a

September 2009 hearing, the McLean County circuit court denied

defendant's motion. At a November 2009 stipulated bench trial,

the court found defendant guilty, sentenced him to 24 months of
conditional discharge, 60 days in jail with credit for 32 days

served, and ordered him to pay a $200 deoxyribonucleic acid (DNA)

fine and a $200 contribution to the Crime Detection Network.

Defendant filed a motion to reconsider, again asserting he could

not have violated section 6-303(c-3), and the court denied the

motion.

Defendant appeals, contending (1) his felony driving-

while-license-suspended conviction must be vacated because the

trial court misinterpreted section 6-303(c-3), (2) he is entitled

to an additional day of sentencing credit, and (3) he is entitled

to a $5 credit per day in presentence custody under section 110-

14(a) of the Code of Criminal Procedure of 1963 (Procedure Code)

(725 ILCS 5/110-14(a) (West 2008)) against his fines. We affirm

as modified and remand with directions.

I. BACKGROUND

According to a document in the record filed by the

State, defendant was arrested for driving under the influence

(DUI) on January 4, 2009, which led to People v. Isaacson, No.

09-DT-13 (Cir. Ct. McLean Co.) (hereinafter case No. 13). At the

time of his arrest in case No. 13, defendant consented to a

"blood/urine draw," for which the results were completed on

February 27, 2009. On January 31, 2009, defendant was again

arrested for DUI, which led to People v. Isaacson, No. 09-DT-86

(Cir. Ct. McLean Co.) (hereinafter case No. 86). In case No. 86,

defendant consented to a Breathalyzer and had a blood-alcohol

content of 0.122. In a document filed February 17, 2009, the

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Secretary of State informed defendant of a six-month summary

suspension in case No. 86 that was effective March 18, 2009. The

document stated defendant was a first offender. On March 4,

2009, defendant opted out of an MDDP, and a copy of the opt-out

document was placed in the files of both the cases. In a docu-

ment filed March 30, 2009, the Secretary of State informed

defendant of a 12-month summary suspension in case No. 13 that

was effective April 25, 2009. That document stated defendant was

not a first offender.

On May 9, 2009, defendant was arrested for driving

while license suspended. Two days later, the State charged

defendant under section 6-303(c-3) of the Vehicle Code. On June

10, 2009, a grand jury indicted him on the same charge.

In August 2009, defendant filed a motion to dismiss the

indictment, asserting he was ineligible to receive an MDDP when

he allegedly committed the charged offense. The State filed a

response, setting forth some of the facts of defendant's two DUI

cases and asserting eligibility is determined at the time the

summary suspension is imposed. After a September 2009 hearing,

the trial court denied defendant's motion, agreeing with the

State's interpretation of section 6-303(c-3).

On November 4, 2009, the trial court held a stipulated

bench trial. The parties stipulated to the evidence, but defen-

dant preserved his argument that section 6-303(c-3) did not apply

to his situation. The parties also presented the court with a

joint sentencing recommendation. After complying with Illinois

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Supreme Court Rule 402 (eff. July 1, 1997), the court found

defendant guilty and accepted the parties' sentencing recommenda-

tion. The court stated defendant's sentence was 24 months of

conditional discharge, 60 days in jail with credit for 32 days

served, a $200 DNA fine, and a $200 contribution to the Crime

Detection Network. The written conditional-discharge order did

not expressly list any additional fines but did order defendant

to pay any mandatory assessments, including one under the Violent

Crime Victims Assistance Act (725 ILCS 240/10 (West 2008)), that

were set forth on a form by the circuit clerk. The circuit

clerk's "notice to party" document lists, inter alia, the $200

DNA fine, the $200 Crime Detection Network contribution, a $15

children's-advocacy-center assessment, and a $10 drug-court

assessment but does not list a fine under the Violent Crime

Victims Assistance Act.

On November 12, 2009, defendant filed a motion to

reconsider, again challenging the application of section

6-303(c-3) to his situation. After a November 23, 2009, hearing,

the court denied defendant's motion to reconsider. On December

21, 2009, defendant filed a notice of appeal in sufficient

compliance with Illinois Supreme Court Rule 606 (eff. Mar. 20,

2009) that stated he was appealing (1) his sentence and (2) the

denial of his motion to reconsider that addressed his conviction.

While the parties and trial court agreed defendant's stipulation

was tantamount to a guilty plea, it was, in fact, not since

defendant just stipulated to the evidence that would be presented

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if the case proceeded to a trial and preserved a defense. See

People v. Thompson, 404 Ill. App. 3d 265, 270, 936 N.E.2d 195,

199 (2010) (noting "a stipulated bench trial is tantamount to a

guilty plea if the defendant either: (1) stipulates that the

evidence is sufficient for a finding of guilty beyond a reason-

able doubt, or (2) does not present or preserve a defense").

Accordingly, Illinois Supreme Court Rule 604(d) (eff. July 1,

2006) does not apply here, and this court has jurisdiction of

defendant's conviction and sentence under Illinois Supreme Court

Rule 603 (eff. July 1, 1971). See Netto v. Goldenberg, 266 Ill.

App. 3d 174, 178, 640 N.E.2d 948, 952 (1994) (indicating the

notice of appeal may list either the order disposing of the

posttrial motion or the order entering the judgment), overruled

on other grounds by Holton v. Memorial Hospital, 176 Ill. 2d 95,

118-19, 679 N.E.2d 1202, 1212 (1997).

II. ANALYSIS

Defendant first argues his felony conviction under

section 6-303(c-3) of the Vehicle Code must be vacated because he

was ineligible for an MDDP at the time of his arrest in this

case. The State responds section 6-303(c-3) refers to eligibil-

ity for an MDDP at the time the summary suspension is imposed.

This issue involves a matter of statutory interpretation, which

we review de novo. See People v. Williams, 239 Ill. 2d 503, 506,

942 N.E.2d 1257, 1260 (2011).

When interpreting a statute, our primary objective

is to ascertain and give effect to the legislature's intent.

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People v. Zimmerman, 239 Ill. 2d 491, 497, 942 N.E.2d 1228, 1232

(2010). The most reliable indicator of the legislature's intent

is the statute's language, which we must give its plain and

ordinary meaning. Moreover, we construe the statute as a whole

by interpreting words and phrases in light of other relevant

provisions in the statute. Additionally, the court may consider

the law's purpose, the evils sought to be remedied, and the

consequences that would result from construing the statute one

way or another. Also, we presume the legislature did not intend

absurdity, inconvenience, or injustice. Zimmerman, 239 Ill. 2d

at 497, 942 N.E.2d at 1232.

This case involves section 6-303 of the Vehicle Code,

which states, in pertinent part, the following:

"(a) Except as otherwise provided in

subsection (a-5), 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 specifi-

cally allowed by a judicial driving permit

issued prior to January 1, 2009, [MDDP],

family financial responsibility driving per-

mit, probationary license to drive, or a

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 restricted driving permit issued pursuant to

this Code or under the law of another state,

shall be guilty of a Class A misdemeanor.

* * *

(c-3) Any person convicted of a viola-

tion of this Section during a period of sum-

mary suspension imposed pursuant to Section

11-501.1 when the person was eligible for a

MDDP shall be guilty of a Class 4 felony and

shall serve a minimum term of imprisonment of

30 days.

(c-4) Any person who has been issued a

MDDP and who is convicted of a violation of

this Section as a result of operating or

being in actual physical control of a motor

vehicle not equipped with an ignition inter-

lock device at the time of the offense shall

be guilty of a Class 4 felony and shall serve

a minimum term of imprisonment of 30 days."

625 ILCS 5/6-303 (West 2008) (text of section

effective until June 1, 2009).

Defendant does not explain how he arrives at his

interpretation of the statute but simply asserts the plain

language of the statute indicates he must have been eligible for

an MDDP when he violated section 6-303. On the other hand, the

State explains the phrase "when the person was eligible for a

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MDDP" applies to "imposed" as the legislature used a past-tense

verb in the phrase. Thus, the plain language of the statute

punishes a violation of section 6-303 during a statutory suspen-

sion for which the person was eligible at the time the suspension

was imposed. When eligibility for the MDDP is determined for the

purposes of section 6-303(c-3) is a matter of first impression.

In determining what a phrase qualifies, our supreme

court has utilized the last antecedent doctrine, which is a

long-recognized grammatical canon of statutory construction. See

In re E.B., 231 Ill. 2d 459, 467, 899 N.E.2d 218, 223 (2008).

The last antecedent doctrine provides the following:

"[R]elative or qualifying words, phrases, or

clauses are applied to the words or phrases imme-

diately preceding them and are not construed as

extending to or including other words, phrases, or

clauses more remote, unless the intent of the

legislature, as disclosed by the context and read-

ing of the entire statute, requires such an exten-

sion or inclusion." E.B., 231 Ill. 2d at 467, 899

N.E.2d at 223.

In section 6-303(c-3), the phrase "when the person was eligible

for a MDDP" is closer to "imposed" than "violation." Only the

phrase "pursuant to Section 11-501.1" separates "imposed" from

the phrase at issue, and the phrase at issue clearly does not

apply to the "pursuant to" phrase. Moreover, a full reading of

the statute does not indicate an extension of the phrase to

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"violation." In describing the aggravating factor in subsection

(c-4) (625 ILCS 5/6-303(c-4) (West 2008)), the legislature used

the term "at the time of the offense," which it did not use in

subsection (c-3).

Additionally, section 6-206.1 of the Vehicle Code (625

ILCS 5/6-206.1 (West 2008)) addresses the reasoning behind the

MDDP and states, in pertinent part, the following:

"It is hereby declared a policy of the State

of Illinois that the driver who is impaired

by alcohol, other drug or drugs, or intoxi-

cating compound or compounds is a threat to

the public safety and welfare. Therefore, to

provide a deterrent to such practice, a stat-

utory summary driver's license suspension is

appropriate. It is also recognized that

driving is a privilege and therefore, that

the granting of driving privileges, in a

manner consistent with public safety, is

warranted during the period of suspension in

the form of a [MDDP]."

The State's interpretation of the statute is more consistent with

the purpose of MDDPs to provide driving privileges in a manner

consistent with public safety. By determining eligibility at the

time the summary suspension is imposed, the statute punishes

those who initially had the opportunity to get an MDDP and drive

in a manner consistent with public safety but drove anyway during

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the summary suspension without one. On the other hand, eligibil-

ity at the time of the violation would allow defendants who lost

the ability to obtain an MDDP to receive a less severe punishment

than those who did not lose the privilege, which is an absurd

result.

Accordingly, we hold section 6-303(c-3) of the Vehicle

Code applies to individuals who are convicted of violating

section 6-303 during a summary suspension, for which the individ-

ual was eligible for an MDDP at the time the suspension was

imposed. Thus, we disagree with defendant his guilty finding was

based on a misinterpretation of section 6-303(c-3) as the trial

court applied the proper construction of the statute. Addition-

ally, we note defendant does not raise any other challenges to

his conviction.

B. Sentencing Credit

As to his sentence, defendant asserts he is entitled to

an additional day of sentencing credit under section 5-8-7(b) of

the Unified Code of Corrections (730 ILCS 5/5-8-7(b) (West

2008)). Specifically, defendant argues he was in custody from

May 9 to May 11, 2009, and September 29, 2009, to October 28,

2009. Moreover, defendant contends he has not waived this issue

because the statute is mandatory and the normal waiver rules are

inapplicable. See People v. Williams, 328 Ill. App. 3d 879, 887,

767 N.E.2d 511, 519 (2002). However, this court has held "[a]

defendant has the right to first request sentencing credit at any

time unless, as here, he agreed to forego it as part of a plea or

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other sentencing agreement." People v. Williams, 384 Ill. App.

3d 415, 417, 892 N.E.2d 129, 131 (2008). Since defendant's

sentencing credit was part of a sentencing agreement, he has

forfeited this issue. See People v. Snyder, 387 Ill. App. 3d

1094, 1102, 904 N.E.2d 625, 631-32 (2009) (finding the defendant

forfeited his sentencing-credit claim because his sentencing

credit was part of a sentencing agreement presented to the trial

court). Even absent forfeiture, defendant would not be entitled

to an extra day of credit because the record indicates defendant

was released from custody on October 27, 2009, not October 28.

C. Per Diem Credit

Defendant last asserts he is entitled to a $5 per diem

credit against his fines under section 110-14(a) of the Procedure

Code (725 ILCS 5/110-14(a) (West 2008)) for his days in

presentence custody, which was 32 days under the parties' sen-

tencing agreement. In raising his issue, defendant lists four

fines. However, the trial court only expressly ordered defendant

to pay two fines at sentencing. We recognize that, in its

written conditional-discharge order, the court ordered defendant

to "[p]ay all fines, restitution, costs, fees and mandatory

assessments, including VCVA, as set forth in the fine/cost sheet

provided by the McLean County Circuit Clerk." Since two of the

fines were not specifically mentioned by the trial court, we must

first address defendant's fines before analyzing his credit

request.

In People v. Swank, 344 Ill. App. 3d 738, 747-48, 800

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N.E.2d 864, 871 (2003), this court explained the proper roles of

judicial and nonjudicial members in imposing statutory fines as

follows:

"The imposition of a fine is a judicial

act. The clerk of a court is a nonjudicial

member of the court and, as such, has no

power to impose sentences or levy fines.

[Citation.] Instead, the circuit clerk has

authority only to collect judicially imposed

fines. [Citation.]" (Internal quotation

marks omitted.)

In this case, the trial court expressly imposed a $200

DNA fine and a $200 contribution to the Crime Detection Network

and then ordered defendant to pay whatever mandatory assessments,

including the fine under the Violent Crime Victims Assistance Act

(725 ILCS 240/10 (West 2008)), that were listed by the circuit

clerk. The record contains no evidence the court itself deter-

mined the mandatory fines that applied to defendant's conviction

and the appropriate amounts of those fines. The conditional-

discharge order erroneously abdicated that task to the circuit

clerk. Regarding the $15 children's-advocacy-center and the $10

drug-court assessments, this court has found both of those fines

are mandatory. See People v. Folks, 406 Ill. App. 3d 300, 305,

943 N.E.2d 1128, 1132 (2010). Since the two assessments are

fines, the circuit clerk did not have authority to impose them.

Folks, 406 Ill. App. 3d at 306, 943 N.E.2d at 1133. When pre-

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sented with mandatory fines assessed by the clerk, we may vacate

the fines and reimpose them ourselves. People v. Schneider, 403

Ill. App. 3d 301, 305, 933 N.E.2d 384, 389 (2010). Thus, we

vacate the $15 children's-advocacy-center and the $10 drug-court

assessments and reimpose them.

While the trial court ordered defendant to pay a

Violent Crime Victims Assistance Act fine in the conditional-

discharge order, it did not determine the proper amount of that

fine. Under the Violent Crime Victims Assistance Act, if no

other fines are imposed, the penalty to be collected is $25 for

crimes of violence and $20 for any other felony. See 725 ILCS

240/10(c)(1), (c)(2) (West 2008). If other fines are imposed,

the penalty is "$4 for each $40, or fraction thereof, of fine

imposed." 725 ILCS 240/10(b) (West 2008). Here, defendant's

fines total $425, and thus his fine under section 10(b) of the

Violent Crime Victims Assistance Act is $44. Because the fine is

mandatory, we remand the cause for the trial court to expressly

impose the amount of the fine. See People v. Scott, 152 Ill.

App. 3d 868, 873, 505 N.E.2d 42, 46 (1987).

As to the per diem credit, section 110-14(a) of the

Procedure Code (725 ILCS 5/110-14(a) (West 2008)) provides the

following:

"Any person incarcerated on a bailable of-

fense who does not supply bail and against

whom a fine is levied on conviction of such

offense shall be allowed a credit of $5 for

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 each day so incarcerated upon application of

the defendant. However, in no case shall the

amount so allowed or credited exceed the

amount of the fine."

While defendant did not raise this issue in the trial court, the

issue is not forfeited. See People v. Watson, 318 Ill. App. 3d

140, 143, 743 N.E.2d 147, 149 (2000). The State concedes defen-

dant is entitled to $160 credit based on defendant's 32 days of

pretrial custody. The credit is available to offset defendant's

fines, except for the $44 Violent Crime Victims Assistance Act

fine, which is not subject to offset (725 ILCS 240/10(b) (West

2008)). Thus, on remand, when the trial court enters an amended

sentencing judgment, the court should include the $160 credit

under section 110-14(a).

III. CONCLUSION

For the reasons stated, we affirm as modified the trial

court's judgment and remand the cause to the McLean County

circuit court for the entry of an amended sentencing judgment

that includes the $15 children's-advocacy-center fine, the $10

drug-court fine, the $44 Violent Crime Victims Assistance Act

fine, and a credit of $160. As part of our judgment, we award

the State its $50 statutory assessment against defendant as costs

of this appeal.

Affirmed as modified and remanded with directions.

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