Illinois Official Reports
Appellate Court
People v. Mischke, 2014 IL App (2d) 130318
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DONALD J. MISCHKE, JR., Defendant-Appellant.
District & No. Second District
Docket No. 2-13-0318
Filed December 29, 2014
Held Where defendant was convicted of first-degree murder and aggravated
(Note: This syllabus driving under the influence and sentenced to concurrent terms and he
constitutes no part of the appealed from the denial of his motion to reconsider his sentences, the
opinion of the court but trial court vacated his concurrent sentences and remanded the cause
has been prepared by the for the imposition of consecutive sentences and resentencing on each
Reporter of Decisions conviction individually, since section 5-8-4(d)(1) of the Unified Code
for the convenience of of Corrections mandates consecutive sentences when defendant is
the reader.) convicted of one count of first-degree murder.
Decision Under Appeal from the Circuit Court of Lake County, No. 11-CF-142; the
Review Hon. Mark L. Levitt, Judge, presiding.
Judgment Vacated and remanded.
Counsel on Michael J. Pelletier, Thomas A. Lilien, and Bruce Kirkham, all of
Appeal State Appellate Defender’s Office, of Elgin, for appellant.
Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M.
Bauer and Marshall M. Stevens, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices McLaren and Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Donald J. Mischke, Jr., appeals from the judgment of the circuit court of Lake
County sentencing him to concurrent terms of 26 years in prison for first-degree murder (720
ILCS 5/9-1(a)(3) (West 2010)) and 7 years in prison for aggravated driving while under the
influence (DUI) (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)). Because consecutive
sentences were required, we vacate both sentences and remand for resentencing.
¶2 I. BACKGROUND
¶3 Following a bench trial, defendant was found guilty of, among other things, one count of
first-degree murder (felony murder) (720 ILCS 5/9-1(a)(3) (West 2010)) and one count of
aggravated DUI with cocaine in his urine (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)).
Defendant was sentenced to concurrent terms of 26 years’ imprisonment on the first-degree
murder conviction and 7 years’ imprisonment on the aggravated DUI conviction.1
¶4 Defendant filed a motion to reconsider his sentences. The trial court denied the motion to
reconsider, and defendant filed a timely notice of appeal.
¶5 II. ANALYSIS
¶6 On appeal, defendant raises three contentions: (1) that the trial court erred in imposing
concurrent sentences when the sentences were statutorily required to be consecutive; (2) that
the court erred in sentencing him for aggravated DUI as a Class 2 felony when his prior two
DUI offenses were nonaggravated; and (3) that this court should remand for a new
sentencing hearing. The State concedes that the trial court erred in imposing concurrent
sentences. However, it contends that defendant was properly sentenced for a Class 2 felony,
because, under the applicable statutory provision, the prior DUI offenses need not have been
aggravated.
¶7 We begin with the contention that the trial court erred in imposing concurrent, as opposed
to consecutive, sentences. Whether sentences are mandatorily consecutive is a matter of
statutory construction, which we review de novo. See People v. Harris, 203 Ill. 2d 111, 116
(2003).
¶8 Section 5-8-4(d)(1) of the Unified Code of Corrections mandates consecutive sentences
when one of the offenses of which a defendant was convicted was first-degree murder. 730
ILCS 5/5-8-4(d)(1) (West 2010). Therefore, because defendant was convicted of first-degree
1
The trial court merged into the first-degree murder conviction defendant’s convictions of
aggravated fleeing and eluding, burglary, and retail theft, all of which were charged in a separate case.
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murder, the court erred in imposing concurrent sentences. Because the concurrent sentences
were imposed in violation of section 5-8-4(d)(1), they are void. See People v. Garcia, 179 Ill.
2d 55, 73 (1997).
¶9 Next, we address the issue of whether the trial court correctly sentenced defendant for
aggravated DUI as a Class 2 felony. Defendant contends that he should have been sentenced
for a Class 4 felony because his prior two DUI offenses were nonaggravated.
¶ 10 When construing a statute, our primary objective is to ascertain and give effect to the
legislature’s intent. People v. Perez, 2014 IL 115927, ¶ 9. The best and most reliable
indicator of that intent is the plain and ordinary meaning of the statutory language. Perez,
2014 IL 115927, ¶ 9. A court must view the statute as a whole and construe words and
phrases, not in isolation, but in light of other relevant provisions. Perez, 2014 IL 115927, ¶ 9.
The court may consider the reason for the law, the problems it seeks to remedy, its purposes,
and the consequences of construing it one way or another. Perez, 2014 IL 115927, ¶ 9. The
court presumes that the legislature did not intend absurdity, inconvenience, or injustice when
it enacted a particular statute. Perez, 2014 IL 115927, ¶ 9. When the language is
unambiguous, we must apply it without resorting to aids of construction. Village of Bull
Valley v. Zeinz, 2014 IL App (2d) 140053, ¶ 15. We may not depart from the plain language
by reading in exceptions, limitations, or conditions. Zeinz, 2014 IL App (2d) 140053, ¶ 15.
¶ 11 Section 11-501(d)(2)(A) of the Illinois Vehicle Code provides that a person convicted of
aggravated DUI is guilty of a Class 4 felony. 625 ILCS 5/11-501(d)(2)(A) (West 2010).
Subsection (d)(2)(B), however, provides, in relevant part, that a “third violation of this
Section *** is a Class 2 felony.” (Emphasis added.) 625 ILCS 5/11-501(d)(2)(B) (West
2010).
¶ 12 The parties do not cite, nor are we aware of, any cases interpreting those provisions for
the purpose of deciding whether the two prior DUI offenses must be aggravated for a
defendant to be considered to have committed a Class 2 felony under subsection (d)(2)(B). A
recent decision from the Fourth District Appellate Court, however, has interpreted a closely
related subsection of section 11-501.
¶ 13 In People v. Halerewicz, 2013 IL App (4th) 120388, ¶ 29, the defendant argued that the
trial court erred in sentencing him as a Class X offender. In that regard, he maintained that
subsection (d)(2)(E) (625 ILCS 5/11-501(d)(2)(E) (West 2010)), which enhances to a Class
X felony a “sixth or subsequent violation of this Section,” required that the prior offenses be
aggravated DUI and not nonaggravated DUI. Halerewicz, 2013 IL App (4th) 120388, ¶ 29.
¶ 14 In addressing that issue, the court first looked to the plain language of subsection
(d)(2)(E), which provided that the enhancement applied to a sixth violation of “this Section.”
The court interpreted the plain meaning of that term as referring to section 11-501 in its
entirety, as opposed to merely subsection (d)(2)(E). It did so, in part, because section 11-501
referred to “subsection (d)” throughout as opposed to using the term “section.” Halerewicz,
2013 IL App (4th) 120388, ¶ 34. Therefore, because section 11-501 distinguished between
the terms “subsection” and “section,” the court concluded that the legislature, had it intended
to limit the application of the enhancement to prior aggravated DUI offenses only, could
have done so by using the narrower term “subsection” instead of the broader term “section.”
Halerewicz, 2013 IL App (4th) 120388, ¶ 34. The court also found persuasive the
legislature’s decision to capitalize the term “Section.” Halerewicz, 2013 IL App (4th)
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120388, ¶ 34. In sum, the court held that nonaggravated DUI offenses may be used to elevate
an offense to a Class X felony. Halerewicz, 2013 IL App (4th) 120388, ¶ 36.
¶ 15 Notably, the court rejected an argument that such an interpretation would lead to absurd
results. Halerewicz, 2013 IL App (4th) 120388, ¶ 35. In arguing that it would, the defendant
pointed out that, for example, under subsection (d)(2)(B), there would be a “ ‘sudden jump’ ”
from a Class A misdemeanor for a first or second DUI offense to a Class 2 felony for a third
such offense. Halerewicz, 2013 IL App (4th) 120388, ¶ 35. The court decided, however, that
such an escalation in penalty merely demonstrated a legislative intent to severely punish
repeat offenders. Halerewicz, 2013 IL App (4th) 120388, ¶ 35.
¶ 16 Although the provision at issue in Halerewicz was not the one at issue here, both are
found in subsection (d)(2), both address enhancements for multiple DUI offenses, and both
contain the same language referring to “this Section.” Therefore, Halerewicz strongly
supports the same interpretation of subsection (d)(2)(B).
¶ 17 In accordance with Halerewicz, we hold that the plain language of the statute shows that
the legislature intended to base the enhancement under subsection (d)(2)(B) on any prior DUI
offense under section 11-501. That intent is reflected in the use of the term “subsection”
when referring to the various parts of section 11-501. Had the legislature intended to limit the
enhancement to prior aggravated DUI offenses only, it readily could have referred to
subsection (d). Instead, it opted to use the broader term “Section.” Such use clearly refers to
section 11-501 in its entirety, which necessarily includes nonaggravated DUI offenses.
¶ 18 Additionally, the legislature chose to capitalize the word “Section” but not the word
“subsection.” In doing so, the legislature clearly wanted to differentiate the terms “Section”
and “subsection.” That differentiation shows that when it used the term “Section” the
legislature meant to refer to section 11-501 as a whole rather than merely the subsection in
which the word “Section” is located.
¶ 19 Further, our interpretation of the word “Section” does not conflict with subsection
(d)(2)(A), which states that “[e]xcept as provided otherwise, a person convicted of
aggravated driving under the influence *** is guilty of a Class 4 felony.” 625 ILCS
5/11-501(d)(2)(A) (West 2010). The operative words in subsection (d)(2)(A) are “[e]xcept as
provided otherwise.” 625 ILCS 5/11-501(d)(2)(A) (West 2010). Subsections (d)(2)(B)
through (J), in turn, provide for various exceptions that call for the defendant to be sentenced
more severely than as a Class 4 offender. Of course, that includes subsection (d)(2)(B),
which provides for a Class 2 penalty in the case of three DUI offenses. Therefore, we read
subsection (d)(2)(B) and subsection (d)(2)(A) harmoniously.
¶ 20 Moreover, the alternative interpretation offered by defendant is not reasonable. We
cannot accept that in this one instance the legislature varied from its use of the term
“subsection” and used the word “Section” instead in referring to subsection (d). We further
agree with Halerewicz that the severe punishment of repeat offenders is not absurd or unjust.
¶ 21 Because the statute is not subject to any other reasonable interpretation, it is not
ambiguous. See People v. Webber, 2014 IL App (2d) 130101, ¶ 11. Therefore, it is not
subject to the rule of lenity. See Webber, 2014 IL App (2d) 130101, ¶ 11.
¶ 22 For all of these reasons, we interpret subsection (d)(2)(B) of section 11-501 to require
that a person with two prior nonaggravated DUI offenses be sentenced, upon his third DUI
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offense, as a Class 2 offender. Thus, we hold that the trial court did not err in sentencing
defendant as a Class 2 felon.
¶ 23 That leaves the question of resentencing defendant. In that regard, defendant contends
that this court should not simply convert the concurrent sentences that were imposed to
consecutive sentences, because to do so would result in an aggregate sentence of 33 years.
Thus, defendant argues that we should remand for resentencing because, based on the
applicable sentencing ranges of 20 to 60 years in prison (first-degree murder) (730 ILCS
5/5-4.5-20(a) (West 2010)) and 3 to 7 years in prison (Class 2 felony) (730 ILCS
5/5-4.5-35(a) (West 2010)),2 the trial court could impose consecutive sentences that would
total less than 33 years. The State does not disagree with the case being remanded for
resentencing.3 See People v. Trotter, 2013 IL App (2d) 120363, ¶ 58. Therefore, we remand
for the imposition of consecutive sentences and for resentencing on each conviction
individually.
¶ 24 III. CONCLUSION
¶ 25 For the foregoing reasons, we vacate the judgment of the circuit court of Lake County
sentencing defendant to concurrent sentences and remand for the imposition of new
consecutive sentences.
¶ 26 Vacated and remanded.
2
Defendant concedes, for purposes of this argument only, that he would be resentenced as a Class 2
felon for aggravated DUI.
3
Although the State suggests that defendant has argued that upon remand the trial court cannot
sentence him to more than the original aggregate sentence of 26 years in prison, we do not understand
defendant to be making that argument. Even if he did, it would fail. See People v. Harris, 366 Ill. App.
3d 1161, 1165-66 (2006) (citing People v. Carney, 196 Ill. 2d 518, 529-30 (2001)).
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