People v. Cox

2022 IL App (5th) 200398-U

Opinion

2022 IL App (5th) 200398-U NOTICE NOTICE Decision filed 11/02/22. The This order was filed under text of this decision may be NO. 5-20-0398 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Effingham County. ) v. ) No. 18-CF-447 ) TROYT A. COX, ) Honorable ) Allan F. Lolie, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.

ORDER

¶1 Held: We affirm the defendant’s conviction and sentence, because there is no merit to the defendant’s contention that his conviction for driving while license revoked should be reduced from a Class 4 felony to a Class A misdemeanor. We do not agree that the charging instrument in this case did not strictly comply with the notice requirements of section 111-3(c) of the Code of Criminal Procedure of 1963 by failing to identify the prior convictions being used to enhance the defendant’s sentence.

¶2 The defendant, Troyt A. Cox, was convicted, following a jury trial in the circuit court of

Effingham County, of driving while license revoked. He was thereafter sentenced to a term of 30

months of imprisonment in the Illinois Department of Corrections, to be followed by one year of

mandatory supervised release. This is his direct appeal from his conviction and sentence. For the

following reasons, we affirm.

1 ¶3 I. BACKGROUND

¶4 Because the defendant’s sole argument on appeal involves a strictly legal issue, rather than

a factual one, we provide only those facts necessary to an understanding of the defendant’s

argument. On November 21, 2018, the defendant was charged, by information, with one count of

driving while license revoked. The information alleged, inter alia, that on that date, the defendant

“drove a motor vehicle” while his driving privileges were “revoked by the Secretary of State of

Illinois, for a violation of Driving Under the Influence of Alcohol.” The information further alleged

“that the [d]efendant committed the violation of Driving While License Revoked or a similar

provision for the *** second or subsequent time,” which made the offense a Class 4 felony.

¶5 On December 12, 2018, the defendant was indicted for the same offense. The charging

language in the indictment was identical to the charging language in the information. On August

13, 2020, the defendant, acting pro se, filed a motion to dismiss the charge against him, contending,

in essence, that both the information and the indictment in this case failed to strictly comply with

the notice requirements of section 111-3(c) of the Code of Criminal Procedure of 1963 (725 ILCS

5/111-3(c) (West 2018)) because they did not identify the particular prior conviction or convictions

that the State wished to use to enhance his offense from a misdemeanor to a felony. He further

contended that none of his prior convictions met the requirements for enhancement of the offense

in this case.

¶6 On August 18, 2020, a hearing was held on the motion. After hearing argument from the

defendant, the trial judge denied the first portion of the defendant’s motion to dismiss, agreeing

with the State that the charging instrument did not need to list any particular prior convictions, and

instead needed only to state that there were qualifying prior convictions. He thereafter denied the

second portion of the defendant’s motion to dismiss as well, although he did not specify in detail

his reasons for so doing. 2 ¶7 On August 27, 2020, the defendant, pro se, filed a second motion to dismiss, in which he

again contended, inter alia, that he had not been provided with adequate notice of the prior

convictions the State wished to use to enhance his offense. Prior to testimony beginning that

morning in the defendant’s jury trial, the trial judge addressed the motion. After hearing argument

from the defendant, the trial judge asked if the defendant had been provided, in discovery, with a

copy of his driving abstract. The State contended that it had provided him with a copy, whereas

the defendant contended that he had not received one. The trial judge then ensured that the

defendant was provided with a copy. The trial judge thereafter ruled that the charge against the

defendant “was pled sufficiently although not the way I prefer to plead it. Not the way I used to

plead it. However, I think it was sufficient to put you on notice that it is a Class 4 felony. And that

they are going to be seeking a Class 4 sentence, if you are convicted based on allegation.” He

thereafter stated to the defendant, “Sir, the issue *** is whether or not you were currently a revoked

driver. The issue of whether *** it’s a misdemeanor or a felony is going to be reserved for

sentencing, if you’re convicted.”

¶8 At trial, the arresting officer testified for the State, and the State introduced into evidence

a redacted copy of the defendant’s driving abstract, which stated that the revocation of the

defendant’s driver’s license was in effect on the date of the alleged offense, November 21, 2018.

The defendant testified on his own behalf. Thereafter, the jury deliberated for approximately 10

minutes, then found the defendant guilty of the offense of driving while license revoked.

¶9 On September 28, 2020, the defendant filed a posttrial motion. He did not renew the

arguments raised in his previous motions to dismiss about receiving notice that was adequate under

section 111-3(c) of the Code of Criminal Procedure. A sentencing hearing was held on October

30, 2020. Therein, inter alia, the State, at the request of the trial judge, introduced into evidence a

certified copy of the defendant’s driving abstract. The trial judge thereafter noted that the defendant 3 had convictions for driving under the influence in 1991, 1997, and 1999, which “resulted in

revocation of [the defendant’s] driver’s license after 1999.” He explained to the defendant that for

sentencing purposes, “[t]he State alleges that you were convicted of driving while revoked. This

would be the second time. Meaning the one we are here on today. They would have to show that

your 2010 Class 4 felony driving while revoked or your [2018] driving while revoked caused this.”

He thereafter added:

“My review of your abstract shows you have never been reinstated from that revocation.

So I will let you make your record. You’re driving while—you’re revoked from prior DUIs

and I do have documentary evidence that you have a prior conviction for DUI making this

a Class 4 felony. The only issue is whether or not it’s a third one or not. And I will have to

check the dates on that. Either way it’s going to be a Class 4 felony.”

¶ 10 Following additional argument from the defendant, the trial judge ruled that the defendant

was “clearly put on notice what [the State was] alleging and now they proved it up at sentencing.”

The parties presented arguments in aggravation and in mitigation, and the defendant offered a

statement in allocution. Thereafter, the trial judge sentenced the defendant to 30 months of

imprisonment in the Illinois Department of Corrections, to be followed by one year of mandatory

supervised release. The defendant noted that his September 28, 2020, posttrial motion had not been

ruled upon. Following arguments from the parties, the trial judge denied the motion. Subsequent

to the October 30, 2020, hearing, the defendant made various other pro se filings, all of which

eventually were denied, and none of which are relevant to this appeal, which was timely filed.

¶ 11 II. ANALYSIS

¶ 12 On appeal, the defendant’s sole argument is that his conviction should be reduced from a

Class 4 felony to a Class A misdemeanor because, according to the defendant, “the charging

instruments failed to strictly comply with the notice requirements of [section] 111-3(c) of the Code 4 of Criminal Procedure by failing to identify the prior convictions being used [to] enhance the

sentence.” Specifically, he takes issue with the indictment in this case, which is the charging

instrument upon which he was tried. He acknowledges that this court reviews de novo the legal

question of whether a charging instrument such as an indictment is sufficient. See, e.g., People v.

Carey, 2018 IL 121371, ¶ 19. He argues that pursuant to the plain language of section 111-3(c), in

order for the charging instrument to give adequate notice to the defendant, the charging instrument

was required to “state” the prior conviction or convictions being used to enhance his sentence,

which he interprets to mean that the charging instrument had to list a particular prior conviction or

convictions with more specificity than happened in this case. He notes that he has already served

his 30-month sentence, and therefore asks that this court reduce his conviction to a Class A

misdemeanor, rather than remanding for further proceedings in the circuit court. In support of his

substantive argument, the defendant asks us to consider, as persuasive authority, the unpublished

order of our colleagues in the First District in People v. Lyke, 2021 IL App (1st) 170371-U.

¶ 13 The State responds that it believes the indictment did strictly comply with the requirements

of section 111-3(c), because “the indictment fulfilled the notice requirement by stating that [the]

defendant committed a Class 4 felony, in violation of section 6-303(d) of the Vehicle Code (625

ILCS 5/6-303(d) (West 2018)),” which states, of relevance to this case, that anyone who violates,

a second or subsequent time, the section’s prohibition against driving while license revoked is

guilty of a Class 4 felony. The State contends that because “[t]he indictment expressly referenced

the relevant section under the Vehicle Code, and stated that [the] defendant committed the offense

of driving while license revoked ‘for a second or subsequent time,’ ” there was no lack of strict

compliance, and thus, no error. The State further contends that Lyke is not relevant to this case,

because in Lyke, the charging instrument did in fact list a particular prior conviction, including its

trial court case number, but when that prior conviction was subsequently vacated, the State asked 5 to use a different prior conviction, for a different offense—which was not listed at all in the

charging instrument—to enhance the defendant’s sentence, whereas “the indictment in the present

case gave proper notice to [the] defendant that the State intended to seek an enhanced sentence

due to [the] defendant’s prior [driving while license revoked] or similar driving convictions.” The

State adds that in this case, “the indictment correctly notified [the] defendant of the existence of

the predicate *** convictions,” whereas “[n]o such notice of a valid predicate conviction was given

in Lyke, where the particular felony conviction stated in the indictment was void ab initio and had

been vacated prior to the defendant’s sentencing hearing, and the indictment did not identify

another basis for the enhancement.”

¶ 14 In his reply brief, the defendant contends that in this case, “the indictment’s general

allegation” of a qualifying predicate felony conviction is simply not the same thing, in terms of

strict compliance, as identifying the particular prior felony conviction or convictions the State

wishes to use to enhance the defendant’s sentence. He argues that section “111-3(c)’s first

requirement to give notice of the State’s intention to seek an enhanced sentence based on a prior

conviction already gives the defendant notice that a valid predicate conviction may exist,” because

“the State would not be seeking to enhance the sentence based on a prior conviction unless a prior

conviction existed.” He adds that “the second requirement to ‘state such prior conviction’

necessarily must require something more, otherwise that portion of the statute would be

superfluous.” He also opines that the State’s efforts to distinguish Lyke are not convincing, and

that pursuant to Lyke, there was no strict compliance in this case.

¶ 15 Having recounted the positions of the parties on appeal, we turn to the law at issue in this

case. Section 111-3(c) of the Code of Criminal Procedure of 1963 states, in relevant part, that

“[w]hen 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 6 notice to the defendant.” 725 ILCS 5/111-3(c) (West 2018). The Illinois Supreme Court has held,

on multiple occasions, that section 111-3(c) was enacted by the Illinois General Assembly to

ensure that a defendant receives notice, prior to that defendant’s trial, of the offense or offenses

with which the defendant is charged, and has also held that “the notice provision applies only when

the prior conviction that would enhance the sentence is not already an element of the offense.”

People v. Easley, 2014 IL 115581, ¶¶ 18-19. Moreover, as the defendant points out, the Illinois

Supreme Court has held that “when an indictment or information is challenged before trial, the

indictment or information must strictly comply with the pleading requirements of section 111-3,”

and if it does not do so, “the proper remedy is dismissal.” People v. Espinoza, 2015 IL 118218,

¶ 23.

¶ 16 The parties have provided this court with no binding precedential authority—and no

persuasive authority other than Lyke—that discusses what “strict compliance” means in terms of

the level of descriptive detail about a prior conviction that must be provided for a charging

instrument to adequately meet section 111-3(c)’s requirement that “[w]hen 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.”

725 ILCS 5/111-3(c) (West 2018). Indeed, as explained below, even the Lyke decision does not

address that particular question.

¶ 17 In Lyke, the defendant was charged, by indictment, with one count of unlawful use of a

weapon by a felon and two counts of aggravated unlawful use of a weapon. 2021 IL App (1st)

170371-U, ¶ 7. The first count was based upon the defendant’s prior conviction for “ ‘the felony

offense of aggravated unlawful use of a weapon, under case number 11 CR 18974,’ ” while the

latter two counts “announced the State’s intention ‘to sentence [the defendant] as a Class 2 offender

in that he has been previously convicted of the offense of aggravated unlawful use of weapon under 7 case number 11 CR 18974.’ ” Id. At trial, the State introduced into evidence, inter alia, a certified

copy of the defendant’s conviction in 11 CR 18974. Id. ¶ 22. Ultimately, the defendant was

convicted at trial of both counts of aggravated unlawful use of a weapon. Id. At his subsequent

sentencing hearing, the defendant notified the trial judge that his 2011 conviction for aggravated

unlawful use of a weapon was vacated in January of 2017. Id. ¶ 23. After the trial judge stated that

he would not take the defendant’s vacated conviction into consideration, the State informed the

court that the defendant had a 2010 conviction for possession of a controlled substance, and the

trial judge ultimately imposed a Class 2 felony sentence. Id.

¶ 18 Our colleagues in the First District observed, as have we, that the language of section 111-

3(c) states that when an enhancement is sought, “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.”

(Internal quotation marks omitted.) Id. ¶ 56. The Lyke court thereafter stated that “[a]s indicated

by the ‘and’ in this sentence, both are required,” because “[t]o interpret the statute in any other

manner would be to render the word meaningless and insignificant, which we must not do.” Id.

The court subsequently stated that “section (c) also requires that the charging instrument state

which prior conviction is serving as the basis of the enhancement.” (Emphasis in original.) Id. ¶ 61.

Ultimately, the court ruled that the trial judge improperly enhanced the defendant’s sentence from

Class 4 to Class 2 on the basis of the 2010 conviction for possession of a controlled substance,

because the indictment gave notice only of the State’s intent to sentence the defendant as a Class

2 offender on the basis of his prior conviction for aggravated unlawful use of a weapon in case No.

11 CR 18974—which the court reiterated had been vacated pursuant to Illinois Supreme Court

precedent and accordingly was considered void ab initio—and because, therefore, the indictment

did not provide “proper notice pursuant to section 111-3(c), where the State effectively failed to

‘state such prior conviction so as to give notice to the defendant.’ ” Id. 8 ¶ 19 Thus, Lyke addressed the question of whether, if the charging instrument has alleged a

particular prior conviction as a basis for enhancement of the defendant’s sentence, the State can,

at the time of sentencing, replace that particularly-described—and subsequently vacated—

conviction with a different prior conviction, for an entirely different offense. The Lyke court ruled

that, at least in situations where the original prior conviction was vacated and deemed to be void

ab initio—and thus the indictment could not be said to “state” any valid prior conviction at all—

the answer was no. The Lyke court was not asked to address, and in fact did not address, the

question of what “strict compliance” means in terms of the level of descriptive detail about a prior

conviction that must be provided in all cases for a charging instrument to adequately meet section

111-3(c)’s requirement that “[w]hen 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.” Accordingly, we agree with the State

that the Lyke decision is of limited usefulness to our resolution of that question.

¶ 20 We reiterate that the Illinois Supreme Court, in Easley and in other cases, has held that

section 111-3(c) was enacted by the Illinois General Assembly to ensure that a defendant receives

notice, prior to that defendant’s trial, of the offense or offenses with which the defendant is

charged. See 2014 IL 115581, ¶ 18. In light of that holding, we conclude that in this case, the

indictment—which, as described above, alleged for purposes of the proposed enhancement “that

the [d]efendant committed the violation of Driving While License Revoked or a similar provision

for the *** second or subsequent time”—was specific enough to provide adequate notice and

therefore to strictly comply with section 111-3(c). The indictment told the defendant that if he was

found guilty of the charged offense, his sentence would be enhanced because he had previously

violated—on one or more occasions—the prohibition against driving while his license was

revoked, or had previously violated—on one or more occasions—a similar provision. We fail to 9 see how this notice was inadequate to apprise the defendant of the charge and the basis of the

possible sentencing enhancement, or how it otherwise fails to strictly comply with section 111-

3(c). We also fail to see how it is analogous to the situation in Lyke, where the State, at sentencing,

relied upon an entirely different offense than that listed in the indictment for its proposed

enhancement.

¶ 21 With regard to the defendant’s argument that section 111-3(c) has two requirements—that

the State give notice of its intent to seek enhancement based upon a prior conviction or convictions,

and that it “state such prior conviction”—we agree that this is true, but we do not agree that this

cannot be done in a concise manner, such as in a single sentence, as occurred here, and we do not

agree that in this case “stating” such prior convictions required anything other than using language

such as that used in this case: “that the [d]efendant committed the violation of Driving While

License Revoked or a similar provision for the *** second or subsequent time.” Our conclusion is

supported by a comparison of section 111-3(c) to section 111-3(a). Section 111-3(a) sets out the

specific requirements for criminal charges, stating that they “shall be in writing and allege the

commission of an offense by” the following:

“(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;

(4) Stating the date and county of the offense as definitely as can be done; and

(5) Stating the name of the accused, if known, and if not known, designate the accused

by any name or description by which [the accused] can be identified with reasonable

certainty.” 725 ILCS 5/111-3(a) (West 2018).

¶ 22 When this detailed language is compared to section 111-3(c)’s straightforward directive

that “[w]hen the State seeks an enhanced sentence because of a prior conviction, the charge shall 10 also state the intention to seek an enhanced sentence and shall state such prior conviction so as to

give notice to the defendant,” it is clear that the General Assembly has demonstrated that when a

certain level of descriptive detail is required for the charging instrument to be in strict compliance

with section 111-3(c), the General Assembly will specify what that level of descriptive detail is.

We conclude that because in section 111-3(c), the General Assembly provided no such

specifications with regard to how to “state” prior convictions, it is reasonable to conclude that strict

compliance with section 111-3(c) does not require anything more than what the State provided in

this case, which, as noted above, apprised the defendant of the convictions that could be used to

enhance his sentence in this case.

¶ 23 III. CONCLUSION

¶ 24 For the foregoing reasons, we affirm the defendant’s conviction and sentence.

¶ 25 Affirmed.