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
- 2 - 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
- 3 - 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
- 4 - 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.
- 5 - 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
- 6 - 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
- 7 - 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
- 8 - "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
- 9 - 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
- 10 - 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
- 11 - 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-
- 12 - 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
- 13 - 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.
- 14 -