People v. Nunez

Docket No. 108189.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JORGE
NUNEZ, Appellant.
Opinion filed March 18, 2010.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Following a bench trial in the circuit court of Cook County,
defendant Jorge Nunez was convicted of one count of aggravated
driving under the influence of a drug or combination of drugs during
a period in which his driver’s license was suspended or revoked
(aggravated DUI), in violation of sections 11–501(a)(4) and
(c–1)(2.1) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS
5/11–501(a)(4), (c–1)(2.1) (West 2006)), and one count of driving
while his driver’s license was suspended or revoked (DWLR), in
violation of section 6–303(d) of the Vehicle Code (625 ILCS
5/6–303(d) (West 2006)). Defendant was sentenced to two concurrent
terms of two years’ imprisonment.
BACKGROUND
On the evening of November 22, 2006, Deputy Sheriff David
Barber was in a parking lot writing parking tickets when a man drove
up, got out of his car, and inspected the passenger side of the car.
Barber identified defendant as the man. Two women then drove up
and told Barber that defendant had struck their car. Just as this was
happening, Barber got a call about a hit-and-run and a vehicle that
fled the scene. Defendant got back into his car and drove off. Barber
followed him and, after defendant ran several stop signs, Barber
activated his emergency lights and pulled defendant’s car over. When
asked for his driver’s license, defendant stated he did not have one.
Barber smelled the odor of cannabis coming from defendant’s car.
When he got out of the car, defendant stumbled and his eyes were
bloodshot and his speech was slurred. Barber detected the faint odor
of alcohol on defendant’s breath. It was Barber’s opinion that
defendant was unable to drive the car due to being under the influence
of drugs and alcohol. Defendant told Barber he was “high” and he
was going to lose his job. After receiving his Miranda warnings,
defendant refused to answer any questions and he refused to take a
breath test. Barber and another officer searched defendant’s car and
found a half-smoked marijuana cigarette under the driver’s seat.
While Barber was still on the scene, the two women drove up and
identified defendant as the driver who hit their car.
Following the conclusion of evidence, the trial court entered
verdicts of guilty on count I (aggravated DUI) and count V (DWLR)
of the information. The trial court sentenced defendant as stated. On
appeal, defendant argued that his conviction for DWLR should be
vacated under one-act, one-crime principles. The State agreed, citing
this court’s decision in People v. King, 66 Ill. 2d 551, 566 (1977). In
a summary order, the appellate court refused the State’s concession,
holding that, although the act of driving was involved in both
offenses, defendant was convicted and sentenced based on two
separate, but simultaneous, acts. The court relied on People v.
DiPace, 354 Ill. App. 3d 104, 115-17 (2004). The appellate court also
amended defendant’s fines, costs, and fees order to reflect a $5-per-
day credit for time spent in custody. No. 1–07–2290 (unpublished
order under Supreme Court Rule 23(c)). This court granted
defendant’s petition for leave to appeal. 210 Ill. 2d R. 315. For the
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reasons that follow, we affirm the appellate court’s judgment,
although we do so on different grounds.
ANALYSIS
Defendant’s aggravated DUI charge was based on the fact that he
committed a violation of section 11–501 of the Vehicle Code for the
third time, during a period in which his driving privileges were
revoked, and the revocation was for two previous violations of
section 11–501, one violation occurring on November 20, 1999, and
the other violation occurring on January 26, 2002. This elevated the
offense to a Class 3 felony. The DWLR charge was based on the fact
that defendant drove his vehicle at a time when his driver’s license
was revoked for a previous violation of section 11–501 of the Vehicle
Code and he had been previously convicted of a violation of section
6–303 of the Vehicle Code on May 10, 2000.
Defendant makes two arguments in this appeal. First, he argues,
as he did in the appellate court, that his conviction for DWLR should
be vacated under one-act, one-crime principles. Secondly, he argues
that if this court rejects his first argument, we should nonetheless find
that his conviction for DWLR must be vacated because that offense
is a lesser-included offense of aggravated DUI.
Whether a defendant has been improperly convicted of multiple
offenses based upon the same act and whether a charge encompasses
another as a lesser-included offense are questions of law that this
court reviews de novo. People v. Artis, 232 Ill. 2d 156, 161 (2009);
People v. Kolton, 219 Ill. 2d 353, 361 (2006).
Before we address the merits of defendant’s first argument, we
observe that the State conceded in the appellate court that both of
defendant’s convictions were based on the same physical act and that,
therefore, the conviction for DWLR must be vacated. In this court,
the State now argues that the appellate court was correct in holding
that no one-act, one-crime violation occurred and it also argues that
it has not “waived” review of this issue. We agree that the State is not
estopped from making its argument in this court. We have recently
noted that a reviewing court is not bound by a party’s concession.
People v. Horrell, 235 Ill. 2d 235, 241 (2009) (citing Beacham v.
Walker, 231 Ill. 2d 51, 60 (2008), and People v. Kliner, 185 Ill. 2d 81,
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116 (1998)).
Defendant acknowledges that his one-act, one-crime argument
was not raised before the trial court and that it is therefore forfeited.
The appellate court did not address the issue of forfeiture and simply
decided the issue as though it had been properly preserved for review.
Defendant asserts that we should address his argument under the
plain-error doctrine and we agree. As we stated in Artis, forfeited one-
act, one-crime arguments are properly reviewed under the second
prong of the plain-error rule because they implicate the integrity of
the judicial process. Artis, 232 Ill. 2d at 167-68, citing People v.
Harvey, 211 Ill. 2d 368, 389 (2004). We now turn to the parties’
arguments.
This court described the one-act, one-crime doctrine in People v.
King, 66 Ill. 2d 551 (1977):
“Prejudice results to the defendant only in those instances
where more than one offense is carved from the same physical
act. Prejudice, with regard to multiple acts, exists only when
the defendant is convicted of more than one offense, some of
which are, by definition, lesser included offenses. Multiple
convictions and concurrent sentences should be permitted in
all other cases where a defendant has committed several acts,
despite the interrelationship of those acts. ‘Act,’ when used in
this sense, is intended to mean any overt or outward
manifestation which will support a different offense. We hold,
therefore, that when more than one offense arises from a
series of incidental or closely related acts and the offenses are
not, by definition, lesser included offenses, convictions with
concurrent sentences can be entered.” King, 66 Ill. 2d at 566.
In People v. Rodriguez, 169 Ill. 2d 183, 186 (1996), this court
clarified the King doctrine, noting that, in a one-act, one-crime
analysis, a court must first determine whether a defendant’s conduct
consists of one act or several acts. Multiple convictions are improper
if they are based on precisely the same physical act. If it is determined
that the defendant committed multiple acts, the court goes on to
determine whether any of the offenses are lesser-included offenses.
If so, then, under King, multiple convictions are improper.
The appellate court in this case relied on DiPace, a 2004 decision
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from the Second District. There, the defendant was convicted of Class
2 felony DUI and Class 4 felony DWLR. On appeal, the defendant
argued that he could not be convicted of both offenses because they
were each based on the single physical act of driving. The appellate
court rejected this argument, noting that there is nothing criminal in
driving, per se. Instead, it is a defendant’s culpable physical act–one
that will support an offense–that is the “act” for one-act, one-crime
purposes. DiPace, 354 Ill. App. 3d at 116.
Defendant argues that DiPace was wrongly decided. He argues
that the only physical act involved in both of his offenses was the
driving of his car. The State argues that it was not just the act of
driving, but rather the act of driving plus the “acts” of being
intoxicated and having no valid license that constitute the multiple
acts underlying defendant’s offenses. The State notes that this court
stated in King that an “act” is “any overt or outward manifestation
which will support a different offense.” (Emphasis added.) King, 66
Ill. 2d at 566. The State believes this means that the simple act of
driving will not support an offense and that some other additional
culpable act is required.
Section 11–501(b–1)(2) of the Vehicle Code controls the
disposition of this case. This section was created by Public Act
93–800 (Pub. Act 93–800, §5, eff. January 1, 2005).
The section provides:
“Any penalty imposed for driving with a license that has
been revoked for a previous violation of subsection (a) of this
Section shall be in addition to the penalty imposed for any
subsequent violation of subsection (a).” 625 ILCS
5/11–501(b–1)(2) (West 2006).
The canons of statutory construction are familiar. A reviewing
court’s objective is to give effect to the intent of the legislature. In re
Madison H., 215 Ill. 2d 364, 372 (2005). The best indication of that
intent is the language of the statute, which must be given its plain and
ordinary meaning. People v. Christopherson, 231 Ill. 2d 449, 454
(2008). When the statutory language is clear and unambiguous, it is
unnecessary to resort to other aids of interpretation. People v. Savory,
197 Ill. 2d 203, 213 (2001).
The plain language of section 11–501(b–1)(2) of the Vehicle
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Code mandates that the penalty for defendant’s DWLR conviction be
in addition to the penalty for his aggravated DUI conviction.
Defendant was convicted of DWLR based on the fact that he drove
his vehicle at a time when his driver’s license was revoked for a
previous violation of section 11–501(a). In addition to the DWLR
offense, defendant violated section 11–501(a)(4) by driving his
vehicle while he was under the influence of a drug or combination of
drugs to a degree that rendered him incapable of driving safely. While
other factors enhanced the offense to aggravated DUI, we have
previously observed that there is but one offense of driving under the
influence. People v. Van Schoyck, 232 Ill. 2d 330, 337 (2009).
Here, there is no ambiguity. The legislature has expressly
provided that the penalty for defendant’s conviction for DWLR shall
be in addition to the penalty for his conviction for aggravated DUI.
Since we are aware of no constitutional principle contravened by the
statute, the legislature’s intent must be given effect.
We now address defendant’s alternative argument that his
conviction for DWLR must be vacated because it is a lesser-included
offense of aggravated DUI, an issue we review de novo. People v.
Kolton, 219 Ill. 2d 353, 361 (2006).
Defendant argues that all of the elements of DWLR are included
in the offense of aggravated DUI. He notes that the information in this
case charged him in count I with driving his vehicle while under the
influence of drugs during a period in which his driver’s license was
revoked and the revocation was for a prior DUI offense. Count V
charged him with driving his vehicle at a time when his driver’s
license was revoked, where the revocation was for a DUI offense and
he had previously been convicted of DWLR.
A lesser-included offense is one that is composed of some, but not
all, of the elements of the greater offense and which does not have
any element not included in the greater offense. People v. Jones, 149
Ill. 2d 288, 293 (1992).
The State argues, and we agree, that DWLR is not a lesser-
included offense of aggravated DUI. In Van Schoyck, this court
addressed the question of whether there are two different DUI
offenses, one a misdemeanor and one a felony. The defendant was
initially charged with three DUI offenses by traffic ticket. Later, the
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State dismissed those charges and recharged the defendant by
information with DUI based on the defendant’s driving with a blood-
alcohol content over 0.08 while driving on a revoked license, which
elevated the DUI offense to a felony. Although the main issue in the
case was whether the defendant’s motion for a speedy trial applied to
the recharged offense or only to the offenses charged by the traffic
ticket, this court’s discussion of the offense of DUI is instructive. The
State argued that there were four charges against the defendant, three
misdemeanors and one felony. The State maintained that the speedy-
trial motion applied only to the misdemeanor charges. This court
rejected that argument, holding that, under the plain language of the
DUI statute, there was only one offense of driving under the
influence. The court noted that the statute designates any violation of
subsection (a) as a misdemeanor. Subsection (c) of the statute
contains a list of factors that enhance the misdemeanor to various
different classes of felonies. Thus, the enhancing factors that elevated
the defendant’s offense to a felony did not create a new offense, but
merely served to enhance the punishment. Citing People v. Quigley,
183 Ill. 2d 1, 10 (1998), this court found that the essential and
underlying criminal act is the same for misdemeanor and felony DUI,
i.e., driving under the influence of alcohol or drugs. Van Schoyck, 232
Ill. 2d at 337. The court also observed that section 111–3(c) of the
Criminal Code of 1961 specifically provides that when the State seeks
an enhanced sentence through the use of a prior conviction, the fact
of the conviction and the State’s intention to seek the enhanced
penalty are not elements of the offense. Thus, because the recharged
DUI in Van Schoyck did not allege a different offense, this court held
the speedy-trial demand was applicable to the recharged offense. Van
Schoyck, 232 Ill. 2d at 338-40.
Defendant contends that Van Schoyck is inapplicable. He
acknowledges that his prior convictions for DUI and DWLR were
sentence enhancements and not elements of the aggravated DUI
offense. He argues, however, that proof that he drove with a revoked
license was an element of both his offenses. He asserts that section
111–3 of the Criminal Code does not apply because revocation of a
driver’s license is “a civil sanction, not a criminal conviction.” Thus,
defendant claims that the State was required to prove “the element
that [his] license was revoked at the time he operated his vehicle
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pursuant to the indictment.”
We reject defendant’s argument. In arguing that section 111–3
does not apply because revocation of a driver’s license is a civil
sanction, defendant cites this court’s decision in People v. Lavariega,
175 Ill. 2d 153 (1997). There, the defendant was charged with DUI.
Following his arrest, he refused to complete a blood-alcohol test and
his driver’s license was summarily suspended under the implied-
consent statute. The trial court refused to rescind the suspension. The
defendant moved to dismiss the DUI charge, arguing that the DUI
prosecution violated double jeopardy and was barred by the
suspension of his license. The trial court denied the motion and the
appellate court affirmed. On further appeal, this court addressed the
question of whether the summary suspension of the defendant’s
driver’s license constituted punishment. The court noted that the
legislature had expressly provided that the summary suspension
proceeding is a civil proceeding. The court also observed that
summary suspension advances the goal of keeping the roads safe
from intoxicated drivers, the courts have traditionally viewed
summary suspension proceedings as remedial and nonpunitive, and
there is no scienter element in the statute, further suggesting that
summary suspension is not intended as punishment. Thus, this court
held that the summary suspension of the defendant’s driver’s license
was not punishment for purposes of double jeopardy. Lavariega, 175
Ill. 2d at 156-58.
Defendant’s reliance on Lavariega is misplaced. That case
concerned summary suspension, which this court held is a civil
proceeding, while the present case involves a criminal proceeding.
Defendant drove while his driver’s license was revoked. He was not
subject to summary suspension. His offense is punishable as a Class
4 felony. That defendant’s driver’s license was revoked at the time he
drove while under the influence of drugs is not an element of the DUI
offense; rather, it was a factor that served to enhance the sentence
classification for the DUI from a misdemeanor to a Class 3 felony.
Thus, as a matter of law, defendant’s DWLR offense was not a lesser-
included offense of aggravated DUI.
CONCLUSION
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We hold that defendant was properly convicted of both
aggravated DUI and DWLR. We further hold that DWLR is not a
lesser-included offense of aggravated DUI. Accordingly, we affirm
the appellate court’s judgment.
Appellate court judgment affirmed.
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