NO. 4-96-0677
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Logan County
JESSE EARL LASKOWSKI, ) No. 95CF213
Defendant-Appellant. )
) Honorable
) Wayne C. Townley, Jr.,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Following a bench trial in the circuit court of Logan
County, defendant Jesse Earl Laskowski was found guilty of driving
while under the influence of alcohol (DUI), which the trial court
found to be enhanced to aggravated driving under the influence of
alcohol. 625 ILCS 5/11-501(d)(1)(A) (West 1994). Defendant was
sentenced to 30 months' probation and 60 consecutive Sundays of
periodic imprisonment. As part of his sentence, he was ordered to
pay a $1,000 fine plus $295 court costs, and refrain from the use
of drugs or alcohol during probation, undergo alcohol counseling,
and follow the counselor's recommendations. On appeal, defendant
argues his sentence should be reversed because the State failed to
prove by competent evidence the prior convictions used to enhance
his sentence in this case. We affirm.
DUI is enhanced to aggravated DUI when the defendant
commits DUI, or violates a substantially similar provision, for the
third or subsequent time. 625 ILCS 5/11-501(d)(1)(A) (West 1994).
The statute does not provide a time limit for the use of prior
commissions. The information in this case charged defendant with
"the offense of Aggravated Driving Under the
Influence of Alcohol, a Class 4 Felony in
Violation of Section 5/11-501(d)(1), Chapter
625, Illinois Compiled Statutes, in that the
said defendant drove a motor vehicle while
under the influence of alcohol, said defendant
having previously committed violations of 625
ILCS 5/11-501(a) in McLean County in 1968, in
Tazewell County in 1969, and in McLean County
in 1971."
It placed defendant on notice of the State's intention to seek an
enhanced sentence. Aggravated DUI is a Class 4 felony. 625 ILCS
5/11-501(d)(2) (West 1994). Generally, DUI is a Class A misdemean-
or. 625 ILCS 5/11-501(c) (West 1994).
Section 11-501(d)(1) of the Illinois Vehicle Code
involves the increase in the classification of an offense to seek
an enhanced sentence, thus requiring compliance with section 111-
3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/111-3(c) (West 1994)). People v. Sheehan, 168 Ill. 2d 298, 303-
04, 659 N.E.2d 1339, 1341-42 (1995). Under section 111-3(c) of the
Code, evidence of the prior commission of two or more DUIs need not
be proved by the State as an element of the offense of aggravated
DUI. 725 ILCS 5/111-3(c) (West 1994). See People v. Bowman, 221
Ill. App. 3d 663, 666, 583 N.E.2d 114, 116 (1991).
At the sentencing hearing in this case, the trial court
considered the presentence investigation report, which referred to
the following prior convictions for driving while intoxicated (DWI)
under predecessor statutes:
Case No.
Date of
Offense
Date of
Disposition
Disposition
McLean County
case No. 68-5768
8/13/68
Unavailable
$100 fine, plus costs
McLean County
case No. 68-8207
10/31/68
Unavailable
7 days in jail, plus
costs
Tazewell County
case No. 69-TR-
6/20/69
7/18/69
7 days in jail,
"amended" July 31,
1969 to 12 days in
jail
McLean County
case No. 71-0406
1/18/71
Unavailable
31 days in jail, $250
fine, plus costs
At the time of these prior convictions, DWI was a misdemeanor.
See, e.g., Ill. Rev. Stat. 1967, ch. 95½, par. 144(c); Ill. Rev.
Stat. 1967, ch. 95½, par. 144(i); Ill. Rev. Stat. 1967, ch. 38,
par. 2-11; Ill. Rev. Stat. 1967, ch. 38, par. 2-7.
Defendant objected to the consideration of these prior
offenses listed in the presentence report and to the form of the
State's exhibits offered to establish the prior commission of these
offenses. People's exhibit No. 1 included the certificate of Pam
Gardner, clerk of the circuit court of Tazewell County, indicating
that, in Tazewell County case No. 69-TR-4681, involving "DWI,"
defendant was sentenced to 30 days in jail on July 18, 1969, but
that order was set aside, and on July 31, 1969, he was sentenced to
12 days in jail. Gardner's affidavit indicated the official
records of this traffic case were destroyed, without copies being
retained, pursuant to permission from the Administrative Office of
the Illinois Courts, in accordance with the Uniform Manual on
Recordkeeping adopted by the Supreme Court of Illinois. Adminis-
trative Office of the Illinois Courts, Manual on Recordkeeping,
§4000 et seq., at 70 (1972).
Similarly, in People's exhibit No. 2, Sandra K. Parker,
clerk of the circuit court of McLean County, advised she was unable
to produce copies of the defendant's McLean County convictions.
However, she did certify copies of pages of the McLean County
circuit court Traffic Fee Book indicating payments made by
defendant in McLean County case Nos. 68-5768, 68-8207, and 71-0406,
all having notations of "D.W.I."
People's exhibit No. 3 was a printout of defendant's
driving record prepared by the Secretary of State's Office. That
document referred to convictions for DWI on (1) September 12, 1968,
following an arrest on August 13, 1968; (2) December 9, 1968,
following an arrest on October 31, 1968; (3) July 18, 1969,
following an arrest on June 20, 1969; and (4) January 18, 1971,
following an arrest on January 16, 1971.
Defendant argues that these exhibits are insufficient
because they nowhere indicate whether defendant was afforded
counsel or waived counsel in the prior cases. The enhancing event
for DUI is not prior "convictions," but prior "commissions" of the
offense. Sheehan, 168 Ill. 2d at 303-09, 659 N.E.2d at 1341-44;
People v. Tinkham, 266 Ill. App. 3d 391, 396, 639 N.E.2d 917, 920
(1994); People v. Lambert, 249 Ill. App. 3d 726, 729-30, 619 N.E.2d
534, 536 (1993); People v. Winkler, 248 Ill. App. 3d 954, 957, 618
N.E.2d 661, 662-63 (1993). As a result, the exhibits must be
analyzed to determine whether they establish a prior commission,
not a prior conviction.
The documents submitted by the State are sufficient to
establish the commission of the DUIs. Just as an order of suspen-
sion is an indication of the commission of the offense, though not
a conviction, the payment of fees and fines by defendant in the
McLean County cases is an acknowledgement of the commission of
those offenses, even though a certified copy of the record of
conviction was not submitted by the State. This case involves a
question of what is the best evidence of the prior commission.
Although submitting certified copies of records of conviction is
one method of proving prior commission (see People v. Robinson, 167
Ill. 2d 53, 75-76, 656 N.E.2d 1090, 1100 (1995)), it is not the
only method (see People v. Davis, 65 Ill. 2d 157, 164, 357 N.E.2d
792, 795-96 (1976)), particularly where those records have been
destroyed in the ordinary course of court business. Informal
presentation of defendant's prior record is not erroneous per se.
People v. Hurst, 42 Ill. 2d 217, 222, 247 N.E.2d 614, 618 (1969).
At sentencing, the State need not prove the prior commissions of
DUI beyond a reasonable doubt, and the trial court may consider any
relevant and reliable evidence, taking care to ensure the accuracy
of information and to shield itself from the prejudicial effect of
improper material. People v. Williams, 149 Ill. 2d 467, 490-92,
599 N.E.2d 913, 924 (1992); People v. Yeast, 236 Ill. App. 3d 84,
92, 601 N.E.2d 1367, 1372 (1992).
In this case, defendant has never asserted he was not
represented by counsel or did not waive counsel in the prior
proceedings. Instead, defendant argues that the State failed to
prove representation by counsel or waiver. We agree with the
State's argument that unless defendant offers some evidence to
affirmatively raise the question of whether he was not represented
by counsel and did not waive counsel at the time of the prior
convictions, defendant cannot shift the burden to the State to
prove representation or waiver. In essence, the State has
presented its evidence in aggravation and the defendant has done
nothing to call its reliability into question except to argue its
insufficiency.
In People v. Finley, 209 Ill. App. 3d 968, 972, 568
N.E.2d 412, 414 (1991), defendant filed an affidavit stating he
could not afford to have counsel for the prior case and he was
informed he had no right to counsel and none would be appointed
since the State was not seeking a jail term. No such affidavit was
presented in this case. Nor did defendant testify at sentencing
that he was uncounseled at the prior proceedings and did not waive
his right to counsel. To the extent that Finley can be read to
place an affirmative burden on the State to demonstrate representa-
tion or waiver of counsel in the prior cases, even without any
evidence by defendant, we decline to follow it. The failure of
defendant to make any affirmative statement cannot only be deemed
a waiver of the issue, but may be considered by the trial court as
creating an inference that either defendant was represented by
counsel at the earlier proceedings or he waived representation by
counsel in those proceedings.
The sixth amendment to the United States Constitution
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right *** to have the Assistance of Counsel for his
defence." U.S. Const., amend. VI. In Gideon v. Wainwright, 372
U.S. 335, 339-45, 9 L. Ed. 2d 799, 802-06, 83 S. Ct. 792, 794-97
(1963), the sixth amendment right to counsel in felony cases was
applied to the states through the fourteenth amendment (U.S.
Const., amend. XIV). Subsequently, the right to counsel was
extended to misdemeanor cases so that no person may be imprisoned
unless afforded the right to counsel. Scott v. Illinois, 440 U.S.
367, 373-74, 59 L. Ed. 2d 383, 389, 99 S. Ct. 1158, 1162 (1979);
Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530, 538, 92
S. Ct. 2006, 2012 (1972). The Supreme Court has stated a prior
uncounseled felony conviction may not be used to support guilt, and
an uncounseled felony conviction may not be used to enhance a
sentence following a subsequent conviction (Burgett v. Texas, 389
U.S. 109, 115, 19 L. Ed. 2d 319, 325, 88 S. Ct. 258, 262 (1967)),
and subsequent sentences based in part on prior invalid convictions
must be set aside (see United States v. Tucker, 404 U.S. 443, 447-
49, 30 L. Ed. 2d 592, 596-97, 92 S. Ct. 589, 592 (1972)).
Finley relied on the Supreme Court decision of Baldasar
v. Illinois, 446 U.S. 222, 227-28, 64 L. Ed. 2d 169, 175, 100 S.
Ct. 1585, 1588 (1980), which apparently decided that an uncounseled
misdemeanor conviction could not be used to increase the term of
imprisonment in a subsequent offense. Finley, 209 Ill. App. 3d at
970, 568 N.E.2d at 413. However, the Supreme Court has recently
resolved the confusion created by Baldasar and adopted the dissent
in Baldasar, holding that a sentencing court may consider a prior
uncounseled misdemeanor conviction in sentencing for a subsequent
offense even though the prior misdemeanor conviction resulted in a
sentence of imprisonment. See Nichols v. United States, 511 U.S.
738, 746-47, 128 L. Ed. 2d 745, 754, 114 S. Ct. 1921, 1927 (1994).
The court reasoned that since sentencing courts may consider
conduct that did not result in conviction, they could surely
consider a prior conviction that must have been proved beyond a
reasonable doubt. Nichols, 511 U.S. at 747, 128 L. Ed. 2d at 754-
55, 114 S. Ct. at 1928. Defendant's contention on appeal is not a
bar to the use of the conviction in McLean County case No. 68-5768,
in which defendant only received a $100 fine.
The key question in this case, however, is how must the
issue be raised. In Nichols, the defendant argued that the prior
conviction was uncounseled, and the district court agreed.
Nichols, 511 U.S. at 741, 128 L. Ed. 2d at 750, 114 S. Ct. at 1924.
In Baldasar, the record of the prior proceeding indicated the
defendant was not represented by counsel and he did not formally
waive the right to counsel. Baldasar, 446 U.S. at 223, 64 L. Ed.
2d at 172, 100 S. Ct. at 1585. In Tucker, the fact the prior
convictions were uncounseled was "conclusively determined" in a
collateral proceeding several years after the imposition of the
enhanced sentence. Tucker, 404 U.S. at 444-45, 30 L. Ed. 2d at
595, 92 S. Ct. at 590. In Burgett, the certified records of the
prior conviction were contradictory, one saying the defendant was
without counsel and the other silent on that point. Burgett, 389
U.S. at 112, 19 L. Ed. 2d at 323, 88 S. Ct. at 260. The Burgett
court stated that the records of the prior conviction "on their
face raise a presumption