People ex rel. Glasgow v. Kinney

ILLINOIS OFFICIAL REPORTS
Supreme Court
People ex rel. Glasgow v. Kinney, 2012 IL 113197
Caption in Supreme THE PEOPLE ex rel. JAMES W. GLASGOW, Petitioner, v. GERALD
Court: R. KINNEY, Judge, Respondent.
Docket No. 113197
Filed May 24, 2012
Held The Vehicle Code prohibition on probation for a fourth DUI conviction
(Note: This syllabus could not be avoided merely because one of the earlier DUIs used for
constitutes no part of such enhancement was an uncounseled misdemeanor—mandamus for
the opinion of the court sentencing in accordance with statute.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Original action for mandamus.
Review
Judgment Judgment of mandamus awarded.
Counsel on Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Appeal Solicitor General, and Michael M. Glick and Katherine Doersch
Saunders, Assistant Attorneys General, of Chicago, of counsel), for
petitioner.
Stephanie Speakman, of Mokena, and Jeffery Tomczak, of Joliet, for
respondent Michael Drew.
Justices CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Justices Freeman, Thomas, Garman, Karmeier, Burke, and Theis
concurred in the judgment and opinion.
OPINION
¶1 Petitioner, James W. Glasgow, State’s Attorney of Will County, seeks mandamus against
respondent, the Honorable Gerald R. Kinney, judge of the circuit court of Will County. See
Ill. Const. 1970, art. VI, § 4(a). The petitioner requests mandamus compelling respondent to:
(1) vacate his order granting the motion of defendant, Michael W. Drew, to strike his Bureau
County driving while under the influence (DUI) conviction; (2) vacate his sentencing order;
(3) deny defendant’s motion to “strike”; and (4) sentence defendant in accordance with
section 11-501(d)(2)(C) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(2)(C) (West
2008)), and section 5-4.5-35 of the Unified Code of Corrections (730 ILCS 5/5-4.5-35 (West
2008)). For the following reasons, we award mandamus.
¶2 I. BACKGROUND
¶3 In August 2009, defendant, Michael W. Drew, was charged by indictment with
aggravated DUI (625 ILCS 5/11-501(d)(2)(C) (West 2008)), a nonprobationable Class 2
felony. The indictment alleged that on August 7, 2009, defendant committed DUI and that
he had three prior DUI violations: (1) a 1985 Will County DUI; (2) a 1990 Cook County
DUI; and (3) a 2000 Bureau County DUI. Defendant pleaded guilty to aggravated DUI as
charged in the indictment.
¶4 At the plea hearing, defendant was permitted to file a motion in limine seeking to “strike”
his 2000 Bureau County conviction. Citing People v. Finley, 209 Ill. App. 3d 968 (1991),
defendant argued that his 2000 Bureau County DUI guilty plea was made without legal
counsel and, therefore, could not be used to enhance his sentence to a nonprobationable Class
2 felony. In Finley, the court held that a prior uncounseled misdemeanor conviction could
not be used to enhance a current offense. Finley, 209 Ill. App. 3d at 973. In response, the
State argued that Finley was no longer valid because it was based on Baldasar v. Illinois, 446
U.S. 222 (1980), and Baldasar was overruled in Nichols v. United States, 511 U.S. 738
(1994).
¶5 Respondent concluded that he was bound to follow Finley, granted defendant’s motion
in limine, and sentenced him to 48 months of probation. Respondent denied the State’s
subsequent motion to vacate the sentencing order. The State filed a motion with this court
for leave to file a complaint seeking mandamus. Ill. S. Ct. R. 381(a) (eff. Dec. 29, 2009). We
allowed the State’s motion for leave to file the complaint.
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¶6 II. ANALYSIS
¶7 Before this court, the State contends that respondent erred, as a matter of law, in barring
the use of defendant’s Bureau County misdemeanor DUI conviction, and it seeks mandamus
relief from this court. Article VI, section 4(a), of the Illinois Constitution confers
discretionary original jurisdiction upon this court to hear mandamus cases. Ill. Const. 1970,
art. VI, § 4(a). “Mandamus is an extraordinary remedy used to compel a public official to
perform a purely ministerial duty where no exercise of discretion is involved.” People ex rel.
Alvarez v. Skryd, 241 Ill. 2d 34, 38 (2011). This court will award mandamus only when “the
petitioner establishes a clear right to the relief requested, a clear duty of the public official
to act, and clear authority in the public official to comply.” Alvarez, 241 Ill. 2d at 39.
¶8 Section 11-501(d)(2)(C) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(2)(C) (West
2008)) prohibits a court from imposing a probationary sentence for an offender who has three
prior DUI violations. Section 11-501(d)(2)(C) provides, in relevant part:
“A fourth violation of this Section or a similar provision is a Class 2 felony, for
which a sentence of probation or conditional discharge may not be imposed.” 625
ILCS 5/11-501(d)(2)(C) (West 2008).
¶9 In this case, respondent believed that, under Finley, defendant’s uncounseled Bureau
County misdemeanor DUI conviction could not be used to enhance his current offense to a
nonprobationable Class 2 felony. In Finley, the appellate court held that the use of a
defendant’s prior uncounseled DUI conviction to enhance his current DUI offense is
prohibited by Baldasar. Although Baldasar was overruled in Nichols, the respondent
concluded he was bound to follow Finley. The respondent believed he was bound to follow
Finley because Finley was never expressly overruled.
¶ 10 Our decision is instructed by the law surrounding this issue. In Scott v. Illinois, 440 U.S.
367 (1979), the United States Supreme Court held that a defendant charged with a
misdemeanor has no constitutional right to counsel when no sentence of imprisonment is
imposed. A year after the Scott decision, a majority of the Court held in Baldasar that a prior
uncounseled misdemeanor conviction, while constitutional under Scott, could not be
collaterally used to convert a subsequent misdemeanor conviction into a felony under the
applicable Illinois sentencing enhancement statute. Baldasar, 446 U.S. at 224, 227-28.
Baldasar was a per curiam opinion that provided no single rationale for its result, instead
referring to three different concurring opinions to support its judgment. Subsequently, in
Nichols, the Supreme Court continued its adherence to Scott, but overruled Baldasar and,
instead, adopted the Baldasar dissent, holding that an uncounseled conviction that is valid
under Scott may be relied upon to enhance the sentence for a subsequent offense. Nichols,
511 U.S. at 746-48. The Nichols court reasoned:
“Enhancement statutes, whether in the nature of criminal history provisions *** or
recidivist statutes that are commonplace in state criminal laws, do not change the
penalty imposed for the earlier conviction.” Nichols, 511 U.S. at 747.
¶ 11 Defendant contends that Nichols is inapplicable here because it only addressed enhanced
sentences and did not address whether a prior uncounseled conviction could be used to
support a sentence of mandatory imprisonment. We disagree.
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¶ 12 Nichols drew no distinction between enhancements that lengthen a term of imprisonment
and enhancements that result in a mandatory term of imprisonment. To the contrary, Nichols
held that “an uncounseled conviction valid under Scott may be relied upon to enhance the
sentence for a subsequent offense, even though that sentence entails imprisonment.”
(Emphasis added.) Nichols, 511 U.S. at 746-47. Nichols recognized that enhancement
statutes, or “recidivist statutes that are commonplace in state criminal laws, do not change
the penalty imposed for the earlier conviction.” Nichols, 511 U.S. at 747. In fact, the
Supreme Court “consistently has sustained repeat-offender laws as penalizing only the last
offense committed by the defendant.” (Internal quotation marks omitted.) Nichols, 511 U.S.
at 747.
¶ 13 Nichols plainly held that “an uncounseled misdemeanor conviction, valid under Scott
because no prison term was imposed, is also valid when used to enhance punishment at a
subsequent conviction.” Nichols, 511 U.S. at 749. Section 11-501(d)(2)(C) is precisely the
type of recidivist statute contemplated by the Nichols decision, providing enhanced sentences
for repeat offenders. We therefore reject defendant’s argument that Nichols did not address
whether a prior uncounseled conviction could be used to support a sentence of mandatory
imprisonment.
¶ 14 In accordance with Nichols, we conclude that a valid uncounseled misdemeanor
conviction is also valid when used to enhance punishment in a subsequent conviction.
Finley’s holding was based entirely on Baldasar, and Baldasar was expressly overruled by
Nichols. Thus, we overrule Finley.
¶ 15 III. CONCLUSION
¶ 16 For the foregoing reasons, we award mandamus and order respondent to: (1) vacate his
order granting the motion of defendant, Michael W. Drew, to “strike” his Bureau County
DUI conviction; (2) vacate his sentencing order; (3) deny defendant’s motion to strike; and
(4) sentence defendant in accordance with section 11-501(d)(2)(C) of the Illinois Vehicle
Code (625 ILCS 5/11-501(d)(2)(C) (West 2008)) and section 5-4.5-35 of the Unified Code
of Corrections (730 ILCS 5/5-4.5-35 (West 2008)).
¶ 17 Judgment of mandamus awarded.
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