People v. Scarbrough

2015 IL App (3d) 130426, 34 N.E.3d 1098

• Court: Appellate Court of Illinois
• Decided: May 13, 2015
• Docket: 3-13-0426
• Status: Unpublished

Opinion

2015 IL App (3d) 130426

Opinion filed May 13, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-13-0426 v. ) Circuit Nos. 12-CM-1506 and ) 12-TR-36534 JAMAR SCARBROUGH, ) ) The Honorable Defendant-Appellant. ) Domenica Osterberger, ) Judge, presiding. _____________________________________________________________________________

PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Carter and Wright concurred in the judgment and opinion.

_____________________________________________________________________________

OPINION

¶1 The defendant, Jamar Scarbrough, entered a blind plea of guilty to driving while his

license was revoked (625 ILCS 5/6-303(a) (West 2012)) and to obstructing identification (720

ILCS 5/31-4.5(a)(2) (West 2012)). The circuit court sentenced him to 12 months of conditional

discharge and to 30 days in the Will County jail, with credit for 25 days served. On appeal, the

defendant argues that he is entitled to a new sentencing hearing because the court erred when it

found that: (1) he was ineligible for court supervision; and (2) he was required to serve a

minimum of 30 days in jail. Alternatively, the defendant argues that he is entitled to a remand for new postplea proceedings because defense counsel failed to comply with Illinois Supreme

Court Rule 604(d) (eff. July 1, 2006). We affirm.

¶2 FACTS

¶3 On April 24, 2012, the defendant received a citation for driving while his license was

revoked (625 ILCS 5/6-303(a) (West 2012)). In connection with the incident, the defendant

furnished a false name, "Jonathon Riggins," to the police officer who conducted the traffic stop.

Accordingly, the defendant was also charged with obstructing identification (720 ILCS 5/31-

4.5(a)(2) (West 2012)).

¶4 On February 25, 2013, the parties appeared in court while they were working on a plea

agreement. The parties asked the court to enter a finding on a dispute they had regarding

whether the defendant was eligible for supervision on the charge of driving while his license was

revoked. The State first pointed out that the defendant had been convicted on February 21, 2003,

for violating section 6-303 of the Illinois Vehicle Code. The State then argued that because the

defendant's most recent violation of section 6-303 allegedly occurred on April 24, 2012, the 2003

conviction was within 10 years such that he was not eligible for supervision under section 5-6-

1(j) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-6-1(j) (West 2012)).

Defense counsel disagreed that the date of the most recent offense was the operative date; rather,

defense counsel argued that the operative date would be the date of disposition on his current

offense. Thus, because the defendant had not been convicted on the current offense within 10

years of the 2003 conviction, defense counsel argued that the defendant was in fact eligible for

supervision. The court continued the case to give the parties time to research the issue.

¶5 Before the hearing was concluded, defense counsel inquired further regarding the

defendant's potential sentence. Defense counsel asked the court that if the defendant was not

2 eligible for supervision, whether he would be eligible to receive community service. The court

stated that the defendant would not be eligible for community service, as "the other relevant

provision of the sentencing code is that number three – it's 4.5 of the disposition statute, which is

5-5-3, says a minimum term of imprisonment of 30 days shall be imposed for a third violation of

subsection C of 6303."

¶6 On March 11, 2013, the parties returned to court. After hearing arguments on the issue of

whether the defendant was eligible for supervision, the circuit court ruled that the operative date

for the prior offense was the date of conviction, as subsections (1) and (2) of section 5-6-1(j)

referred to a conviction or to supervision. Next, the court ruled that the operative date for the

current offense was the date of the charge—not the date of a conviction—because the first

paragraph of section 5-6-1(j) specifically referred to a defendant who was charged with a

violation of section 6-303. The court also reiterated "that section 4.5 of 5-5-3 requires a

minimum term of imprisonment of 30 days to be imposed."

¶7 After the court issued its ruling, the defendant entered a blind plea of guilty to both

charges. The court administered guilty plea admonishments, which included the court

admonishing the defendant that he was not eligible for supervision and that he was facing a

minimum of 30 days in jail. The court accepted the defendant's guilty plea and set the case for

sentencing.

¶8 On April 15, 2013, the circuit court held a sentencing hearing. During the hearing, the

court inquired as to the reason why the defendant's license was revoked at the time of the instant

offense. The prosecutor stated, "[o]n the date of the offense, the statutory summary suspension,

and the bond forfeiture DUI were in effect." The court then clarified with the parties that the

basis for the defendant's revoked license at the time of this offense was a bond forfeiture

3 conviction for driving under the influence (DUI). 1 The prosecutor also stated that the

defendant's criminal history included a statutory summary suspension in 2002 and convictions

for driving while license suspended in both 2002 and 2003.

¶9 During recommendations, defense counsel stated that she believed the defendant was

supervision-eligible, but that if the court disagreed, she recommended 300 hours of community

service work. The court ultimately sentenced the defendant to 12 months of conditional

discharge and to 30 days in the Will County jail, with credit for 25 days served.

¶ 10 On April 18, 2013, the defendant filed a motion to reconsider the sentence. He alleged

that more than 10 years had elapsed since his last violation of section 6-303 of the Code and, as a

result, he was eligible for court supervision, despite the circuit court's finding to the contrary.

¶ 11 On June 11, 2013, defense counsel filed a certificate pursuant to Supreme Court Rule

604(d) (eff. July 1, 2006), which stated:

"1. Counsel has consulted with the Defendant in person to

ascertain the Defendant's contentions of error in the sentence or the

entry of a plea of guilty in this matter.

2. Counsel has examined the trial court file and the report

of proceedings of the plea of guilty.

3. Counsel has made any amendments to the motion

necessary for adequate presentation of any defects in those

proceedings."

1 The court's comments indicated that subsequent to the instant charge, the bond forfeiture was vacated and

the defendant was ultimately found not guilty of DUI after a trial.

4 ¶ 12 Also on June 11, 2013, the circuit court held a hearing on the defendant's motion to

reconsider his sentence, which the court denied. The defendant appealed.

¶ 13 ANALYSIS

¶ 14 I. Eligibility for Court Supervision

¶ 15 On appeal, the defendant initially argues that his sentence should be vacated and the case

should be remanded for a new sentencing hearing because the circuit court erred when it found

that he was ineligible for court supervision. The defendant posits two arguments to support his

position. First, he argues that section 5-6-1(j) of the Unified Code (730 ILCS 5/5-6-1(j) (West

2012)) does not apply to him because his license was not revoked for a violation of one of the

statutes enumerated in section 5-6-1(j).

¶ 16 While sentencing issues are typically reviewed for an abuse of discretion, the question

presented by this issue is one of statutory interpretation; accordingly, our review is de novo.

People v. Anderson, 402 Ill. App. 3d 186, 189 (2010).

¶ 17 In relevant part, section 5-6-1(c) of the Unified Code provides that when a defendant

pleads guilty, the court may defer further proceedings and enter an order for supervision. 730

ILCS 5/5-6-1(c) (West 2012). However, subsection (j) states that subsection (c) does not apply:

"[T]o a defendant charged with violating Section 6-303 of the

Illinois Vehicle Code or a similar provision of a local ordinance

when the revocation or suspension was for a violation of Section

11-501 or a similar provision of a local ordinance or a violation of

Section 11-501.1 or paragraph (b) of Section 11-401 of the Illinois

Vehicle Code if the defendant has within the last 10 years been:

5 (1) convicted for a violation of Section 6-303 of the Illinois

Vehicle Code or a similar provision of a local ordinance; or

(2) assigned supervision for a violation of Section 6-303 of

the Illinois Vehicle Code or a similar provision of a local

ordinance." 730 ILCS 5/5-6-1(j) (West 2012).

¶ 18 In this case, at the sentencing hearing, the circuit court determined that the defendant's

license was revoked at the time of the instant offense due to a bond forfeiture conviction for

DUI. As the defendant points out in his brief, bond forfeitures are civil judgments. See People

v. Woolums, 63 Ill. App. 3d 602, 605-07 (1978); 725 ILCS 5/110-7(g), 110-8(h) (West 2012).

However, the defendant fails to recognize that for the purposes of the Illinois Driver Licensing

Law (625 ILCS 5/6-100 to 6-1013 (West 2012)), bond forfeiture judgments constitute

convictions. 625 ILCS 5/6-100 (West 2012) (defining "conviction" for the Driver Licensing

Law as "[a] final adjudication of guilty by a court of competent jurisdiction either after a bench

trial, trial by jury, plea of guilty, order of forfeiture, or default"); 625 ILCS 5/6-204(c) (West

2012) (stating that "[f]or purposes of this [Vehicle] Code, a forfeiture of bail or collateral

deposited to secure a defendant's appearance in court when forfeiture has not been vacated, or the

failure of a defendant to appear for trial after depositing his driver's license in lieu of other bail,

shall be equivalent to a conviction"); see also People v. Smith, 345 Ill. App. 3d 179, 186 (2004)

(holding that "for the purposes of the offenses outlined in the Vehicle Code, the term 'conviction'

encompasses convictions that resulted from bond forfeitures or default orders").

¶ 19 Because a bond forfeiture for DUI is the equivalent of a conviction for DUI for the

purposes of the Driver Licensing Law, and because the defendant's revocation at the time of the

instant offense was for a violation of section 11-501 of the Vehicle Code, we hold that the

6 defendant's license was in fact revoked for a violation of one of the statutes enumerated in

section 5-6-1(j). Thus, the defendant's first argument in support of his claim that his sentence

should be vacated and the case should be remanded for a new sentencing hearing is without

merit.

¶ 20 The defendant's second argument in support of his claim on this issue is that section 5-6-

1(j) of the Uniform Code does not apply to him because he had not been convicted of a violation

of section 6-303 of the Vehicle Code within the last 10 years. The defendant reasons that: (1)

section 5-6-1(c) applies when a defendant has pled guilty, stipulated to the facts supporting the

charge, or been found guilty; (2) section 5-6-1(j) expressly states that it is an exception to section

5-6-1(c); and (3) accordingly, the 10-year period in section 5-6-1(j) runs backward from the time

when a defendant has pled guilty, stipulated to the facts supporting the charge, or been found

guilty. The defendant also points to another exception to section 5-6-1(c), section 5-6-1(k),

which includes language pertaining to the time of the defendant's arrest. The defendant claims

that section 5-6-1(k) shows that had the legislature intended the 10-year period to run backward

from the date of a defendant's arrest, they would have included such language in section 5-6-1(j).

¶ 21 Our review of section 5-6-1 shows that in general, subsection (c) merely grants the circuit

court the option to order supervision, instead of imposing a sentence, when a defendant pleads

guilty, stipulates to the facts supporting the charge, or is found guilty. 730 ILCS 5/5-6-1(c)

(West 2012). Other subsections in section 5-6-1 that operate as exceptions to subsection (c)

simply remove the option of supervision as a disposition in certain circumstances. One such

circumstance, which is covered by subsection (j), precludes supervision when:

"[A] defendant [is] charged with violating Section 6-303 of the

Illinois Vehicle Code or a similar provision of a local ordinance

7 when the revocation or suspension was for a violation of Section

11-501 or a similar provision of a local ordinance or a violation of

Section 11-501.1 or paragraph (b) of Section 11-401 of the Illinois

Vehicle Code if the defendant has within the last 10 years been:

(1) convicted for a violation of Section 6-303 of the

Illinois Vehicle Code or a similar provision of a local ordinance; or

ordinance." (Emphasis added.) 730 ILCS 5/5-6-1(j) (West 2012).

¶ 22 The best indicator of legislative intent is the statutory language itself, which is given its

plain and ordinary meaning. People v. Ramirez, 214 Ill. 2d 176, 179 (2005). "Where the

language is clear and unambiguous, we will apply the statute without resort to further aids of

statutory construction." Id. With regard to subsection (j), it is important to note that the

legislature used "charged" when describing the circumstance in which supervision is not an

option. 730 ILCS 5/5-6-1(j) (West 2012). If the legislature had intended something other than

the date that a defendant is charged, it presumably would have used different language, as other

subsections show—including subsection (k). 730 ILCS 5/5-6-1(k) (West 2012). Because we

believe subsection (j) is clear and unambiguous, we hold that the operative date from which the

10-year period is to be calculated is the date on which the defendant is charged with a violation

of section 6-303 of the Vehicle Code.

¶ 23 Applying the facts of this case to section 5-6-1(j), it is clear that the defendant was not

eligible for court supervision. The defendant was charged with the instant offense on April 24,

2012. As we held above, his revocation was related to a DUI charge. Further, during plea

8 agreement negotiations, it was established that the defendant had been convicted of violating

section 6-303 of the Vehicle Code on February 21, 2003. Under these circumstances, we hold

that the circuit court did not err when it found that the defendant was ineligible for supervision.

¶ 24 II. 30-Day Jail Requirement

¶ 25 Next, the defendant argues that the circuit court erred when it found that he was required

to serve a minimum of 30 days in jail.

¶ 26 We review questions of statutory interpretation under the de novo standard. Anderson,

402 Ill. App. 3d at 189.

¶ 27 In relevant part, section 6-303(a) of the Vehicle Code provides that "any person who

drives *** a motor vehicle on any highway of this State at a time when such person's driver's

license *** is revoked or suspended *** shall be guilty of a Class A misdemeanor." 625 ILCS

5/6-303(a) (West 2012). In addition, in relevant part, section 6-303(c) of the Vehicle Code

provides that "any person convicted of violating this Section shall serve a minimum term of

imprisonment of 10 consecutive days or 30 days of community service when the person's driving

privilege was revoked or suspended as a result of" either a violation of the DUI statute (625

ILCS 5/11-501 (West 2012)) or a statutory summary suspension or revocation under section 11-

501.1 of the Vehicle Code (625 ILCS 5/11-501.1 (West 2012)). 625 ILCS 5/6-303(c) (West

2012).

¶ 28 Additional statutes can apply to violations of section 6-303 of the Vehicle Code,

including if the defendant has violated that section multiple times. After repeating the minimum

sentence stated in section 6-303(c) of the Vehicle Code, section 5-5-3(c) of the Unified Code

includes, in relevant part, the following two provisions:

9 "(4.4) *** a minimum term of imprisonment of 30 days or

300 hours of community service, as determined by the court, shall

be imposed for a third or subsequent violation of Section 6-303 of

the Illinois Vehicle Code.

(4.5) A minimum term of imprisonment of 30 days shall be

imposed for a third violation of subsection (c) of Section 6-303 of

the Illinois Vehicle Code." 730 ILCS 5/5-5-3(c)(4.4), (4.5) (West

¶ 29 In this case, the circuit court found that section 5-5-3(c)(4.5) applied to the defendant.

The defendant claims that the court's finding was erroneous because the instant offense was not

his third violation of section 6-303(c) of the Vehicle Code.

¶ 30 Our review of the record reveals no error in the circuit court's finding that section 5-5-

3(c)(4.5) applied to the defendant. With regard to the instant offense, the defendant's license was

revoked at the time in connection with a DUI charge, and the defendant's instant offense

therefore met the requirements of section 6-303(c). See 625 ILCS 5/6-303(c)(1) (West 2012). In

addition, at the sentencing hearing, the prosecutor noted that the defendant had a statutory

summary suspension in 2002 and convictions for driving while license suspended in both 2002

and 2003. Accordingly, the defendant's two prior convictions for driving while license

suspended met the requirements of section 6-303(c). See 625 ILCS 5/6-303(c)(3) (West 2012).

Further, given that the defendant had three violations of section 6-303(c), the applicable

sentencing provision under section 5-5-3(c) of the Unified Code was subsection (4.5). Under

these circumstances, we hold that the circuit court properly found that section 5-5-3(c)(4.5)

10 applied to the defendant such that he was subject to a mandatory minimum of 30 days of

imprisonment.

¶ 31 III. Rule 604(d) Compliance

¶ 32 Alternatively, the defendant argues that he is entitled to a remand for new post-plea

proceedings because defense counsel failed to comply with Supreme Court Rule 604(d).

Specifically, the defendant asserts that defense counsel failed to certify that she consulted with

him to ascertain his contentions of error in both the sentence and the entry of the guilty plea.

¶ 33 The principles that guide statutory interpretation also guide the interpretation of our

supreme court's rules. People v. Tousignant, 2014 IL 115329, ¶ 8. The interpretation of a

supreme court rule presents a question of law that we review de novo. Id.

¶ 34 In relevant part, Rule 604(d) provides:

"No appeal from a judgment entered upon a plea of guilty shall be

taken unless the defendant, within 30 days of the date on which

sentence is imposed, files in the trial court a motion to reconsider

the sentence, if only the sentence is being challenged, or, if the

plea is being challenged, a motion to withdraw the plea of guilty

and vacate the judgment. *** The defendant's attorney shall file

with the trial court a certificate stating that the attorney has

consulted with the defendant either by mail or in person to

ascertain defendant's contentions of error in the sentence or the

entry of the plea of guilty, has examined the trial court file and

report of proceedings of the plea of guilty, and has made any

amendments to the motion necessary for adequate presentation of

11 any defects in those proceedings." Ill. S. Ct. R. 604(d) (eff. July 1,

2006).

Defense counsel is required to strictly comply with Rule 604(d), and the failure to do so requires

a remand for compliance with the rule's requirements. People v. Mineau, 2014 IL App (2d)

110666-B, ¶ 8.

¶ 35 In Tousignant, our supreme court held that "or" means "and" in the context of Rule

604(d)'s requirement that defense counsel "ascertain defendant's contentions of error in the

sentence or the entry of the plea of guilty" (emphasis added) (Ill. S. Ct. R. 604(d) (eff. July 1,

2006)). Tousignant, 2014 IL 115329, ¶ 20. Thus, our supreme court stated that counsel is

required to consult with the defendant regarding both the sentence and the entry of the guilty

plea. Id. The court did not make any change to the language to be used in the 604(d) certificate.

¶ 36 Tousignant does not, therefore, address the specific issue raised by the defendant in the

instant case–that defense counsel made no representation in the certificate that he or she had, in

fact, consulted with the defendant on both. Put differently, Tousignant construes what the rule

requires defense counsel to do; the certificate informs the court what he or she actually did.

¶ 37 In this case, defense counsel's Rule 604(d) certificate tracked the rule's language

verbatim. The second district has addressed this issue twice—once pre-Tousignant in People v.

Herrera, 2012 IL App (2d) 110009, ¶ 14 (noting that reciting the rule's language verbatim "is the

better practice"). The court revisited the issue after Tousignant in People v. Mineau, 2014 IL

App (2d) 110666-B, ¶¶ 16, 18 (noting, inter alia, that "[n]othing in Tousignant demonstrates an

intention to change the rule's literal language or to change what a certificate must state"). We are

not in agreement with the second district's conclusions.

12 ¶ 38 The plain language of the rule appears to require defense counsel to file a certificate

stating that: he or she has consulted with the defendant either [choose one] by mail or in person

to ascertain defendant's contentions of error in [choose as many as apply] the sentence or the

entry of the guilty plea [or both], and has examined the trial court file and report of proceedings

of the plea of guilty, and has made any amendments to the motion necessary for adequate

presentation of any defects in those proceedings. To simply recite the language of the rule

verbatim, as Herrera and Mineau find appropriate, leaves the certificate singularly devoid of the

very information it should be imparting.

¶ 39 It is for this reason we do not agree that verbatim recital of the rule "is the better practice"

(Herrera, 2012 IL App (2d) 110009, ¶ 14). Rather we conclude that Tousignant demonstrates a

need for defense counsel's 604(d) certificate to specify what he or she has actually done to

achieve compliance with the rule rather than simply regurgitate the rule's language.

¶ 40 That said, we find in the instant case that the defendant does not contend that he had

objections to the entry of his guilty plea--independent of the sentencing issues that have been

raised--that his counsel failed to include in his post-plea proceedings. Rather he raises only a

claim of a technical semantic defect in the 604(d) certificate.

¶ 41 We agree that the language used in the certificate was insufficiently precise and

technically non-compliant, but defendant has raised no claim of omitted legal contentions or of

prejudice. Accordingly we reject defendant's prayer for a remand for a more compliant 604(d)

certificate.

¶ 42 CONCLUSION

¶ 43 The judgment of the circuit court of Will County is affirmed.

¶ 44 Affirmed.