2014 IL App (2d) 130101 No. 2-13-0101 Opinion filed May 30, 2014

___________________________________________________ ___________________________ IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

___________________________________________________ ___________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit C ourt OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellant, ) ) v. ) No. 12-CF-1205 ) NICHOLAS C. WEBBER, ) Honorable ) Daniel P. Guerin, Defendant-Appellee. ) Judge, Presiding.

___________________________________________________ ___________________________ JUSTICE SCHOSTOK delivered the judgment of the cour t, with opinion. Presiding Justice Burke concurred in the judgment a nd opinion. Justice McLaren dissented, with opinion.

OPINION ¶ 1 The State appeals from an order of the circuit cour t of Du Page County dismissing count I of an indictment against defendant, Nicholas C. Web ber, which charged him with felony driving while his license was revoked (DWLR) (625 ILCS 5/6- 303(d-2) (West 2012)). Count I alleged that “defendant drove or was in actual physical con trol of a motor vehicle on a highway in Illinois at a time when his driver’s license, permit, or pri vilege to operate a motor vehicle was revoked, where the revocation was based upon defendant’s con viction [of driving under the influence of alcohol or other drugs (DUI) (625 ILCS 5/11-501(a) (West 2012))], said defendant having been previously convicted two times of Driving While Lic ense Revoked or Driving While License2014 IL App (2d) 130101

- 2 -

Suspended.” Defendant moved to dismiss on the basi s that his license had been revoked in 1996

because of a violation of section 4-102 of the Illi nois Vehicle Code (Code) (625 ILCS 5/4-102 (West 1996)), which proscribes, inter alia , damaging, tampering, or removing parts from a mot or vehicle. Although defendant’s driving record indic ated that his license was later revoked for DUI, defendant noted that he had never received a n ew license after the 1996 revocation. He argued that, pursuant to People v. Heritsch , 2012 IL App (2d) 090719, the revocation for DUI t hat appeared on his driving record was of no effect and therefore could not be the basis for enhancing DWLR to a felony. The State argues on appeal that Heritsch was decided incorrectly. We agree,

and we therefore reverse the dismissal order and re mand for further proceedings. ¶ 2 As pertinent here, section 6-303(a) of the Code (62 5 ILCS 5/6-303(a) (West 2012)) provides that “any person who drives or is in actua l 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 permi t is revoked or suspended as provided by this Code or the law of another state, except as may be specifically allowed by a judicial driving permit issued prior to January 1, 2009, monitoring device driving permit, family financial responsibility driving permit, probationary license to drive, or a restricted driving permit issued pursuant to this Code or under the law of another state, shall be gu ilty of a Class A misdemeanor.” Pursuant to section 1-176 of the Code, “revocation” of a driver ’s license means “[t]he termination by formal action of the Secretary of a person’s license or pr ivilege to operate a motor vehicle on the public highways, which termination shall not be subject to renewal or restoration except that an application for a new license may be presented and acted upon by the Secretary after the expiration of at least one year after the date of revocation.” 625 ILCS 5/1-176 (West 2012).2014 IL App (2d) 130101

- 3 -

¶ 3 At the time of the alleged offense in this case, su bsections (d-2), (d-3), (d-4), and (d-5) of section 6-303 provided for escalating penalties bas ed on the number of prior convictions “if the revocation or suspension was for a violation of Sec tion 11-401 or 11-501 of this Code, or a similar out-of-state offense, or a similar provision of a l ocal ordinance, or a statutory summary suspension

or revocation under Section 11-501.1 of this Code.” 625 ILCS 5/6-303(d-2), (d-3), (d-4), (d-5) (West 2012). 1 Section 11-401 imposes certain duties on motorist s involved in accidents and, as noted, section 11-501 is the DUI statute. Under se ction 11-501.1, the so-called “implied consent law,” a motorist operating a vehicle on a public hi ghway in Illinois is deemed to have consented, if arrested for DUI, to chemical testing to determine his or her blood alcohol level. Refusal to undergo testing, or submission to a test that revea ls a blood alcohol level of 0.08 or more, results i n the summary suspension of the motorist’s driving pr ivileges. Defendant was charged under section 6-303(d-2), which provided that a defendant convicted of a third violation of section 6-303(a) was guilty of a Class 4 felony. 625 ILCS 5/6-303(d-2) (West 2012). ¶ 4 In Heritsch , the defendant’s conviction of DWLR was enhanced t o a Class 2 felony under section 6-303(d-5). The offense occurred in 2008. Heritsch’s license had been revoked in 1991

because he had used a motor vehicle to commit a dru g-related felony. Heritsch never obtained a

1 At present, each of the prior convictions must als o have occurred while the defendant’s license was suspended or revoked for one of these r easons. See Pub. Act 98-0418, § 5 (eff. Aug. 16, 2013) (amending 625 ILCS 5/6-303(d-2), (d-3), ( d-4), (d-5)); Pub. Act 98-0573, § 5 (eff. Aug. 27, 2013) (amending 625 ILCS 5/6-303(d-2), (d-3), ( d-4), (d-5)). We note that, under Illinois law, “[i]f any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected , be applied to any judgment pronounced after the new law takes effect.” 5 ILCS 70/4 (West 2012)

.2014 IL App (2d) 130101

- 4 -

new driver’s license. However, the abstract of Her itsch’s driving record showed that, in 2001, he

had violated section 11-501 of the Code

C i.e. , he had committed the offense of DUI

C and the Secretary of State revoked his license for that rea son. Because the 1991 revocation was not for one of the reasons that triggered an enhanced sente nce under section 6-303(d-5), the validity of Heritsch’s felony conviction depended on whether he was eligible for an enhanced sentence on the

basis of the 2001 revocation for DUI. The Heritsch majority in essence concluded that, because

his license had been revoked in 1991 and he never a pplied for a new license, there was no license

that could be revoked when Heritsch committed DUI i n 2001. Therefore, according to the majority, “the Secretary’s 2001 formal administrati ve sanction of revocation had no effect.”

Heritsch , 2012 IL App (2d) 090719, & 9. ¶ 5 As noted, the State urges us to depart from the Heritsch majority’s holding. Defendant, after summarizing the majority opinion in Heritsch , asserts it was “well-reasoned and supported by statute and case law.” The major premise of def endant’s argument, however, is simply that principles of stare decisis dictate that we adhere to Heritsch ’s holding. ¶ 6 We note that in People v. Smith , 2013 IL App (2d) 121164, which was decided during the pendency of this appeal, a different panel of this court had occasion to consider the same issue presented in Heritsch and in this case. The Smith court concluded that the holding in Heritsch

was incorrect. The Smith court prefaced its analysis with the following obs ervation: “[A]lthough the trial court was required to follow Heritsch [citation], we are not bound to do so. Our supreme court has noted:

‘ “ ‘ [S]tare decisis requires courts to follow the decisions of higher courts, but does not bind courts to follow decisions of equal o r inferior courts.’ ” [Citation.] Thus, the opinion of one district, division, or pan el of the appellate court is not2014 IL App (2d) 130101

- 5 - binding on other districts, divisions, or panels. [Citation.]’ ” Id. ¶ 7 (quoting O’Casek v. Children’s Home & Aid Society of Illinoi s , 229 Ill. 2d 421, 440 (2008)). ¶ 7 In Smith , the defendant was charged with, inter alia , driving while his license was suspended (DWLS) (625 ILCS 5/6-303(a) (West 2012)). That offense was charged as a Class 2 felony pursuant to section 6-303(d-5). The chargin g instrument originally alleged that on or about January 25, 2012, Smith “ ‘operated a motor v ehicle upon a road in North Aurora *** at a time when [his] driver’s license was suspended or r evoked for a violation of Illinois Compiled Statutes Chapter 625, Act 5, Section 11-501 and aft er having fourteen or more prior violations for the offense of driving while license was revoked or suspended.’ ” Smith , 2013 IL App (2d) 121164, ¶ 2. The State was subsequently permitted to amend the indictment to allege that Smith was driving while a statutory summary suspension of his license (see 625 ILCS 5/11-501.1 (West 2012)) was in effect. Smith moved for dismissal of the charge. At the hearing on the motion, he relied on an abstract of his driving record to esta blish that the statutory summary suspension was

entered at a time when his driver’s license had alr eady been revoked. Relying on Heritsch , Smith argued that the statutory summary suspension was a nullity and therefore could not be used to enhance the DWLS charge to a felony. ¶ 8 Observing that the question presented was one of st atutory interpretation, the Smith court recited the familiar principle that “[w]hen the lan guage of a statute is clear and unambiguous, courts may not depart from the language by incorpor ating exceptions, limitations, or conditions that the General Assembly did not express.” Smith , 2013 IL App (2d) 121164, ¶ 9. The court added, however, that “ ‘[a] literal interpretation is not controlling where the spirit and intent of the General Assembly in enacting a statute are clea rly expressed, its objects and purposes are2014 IL App (2d) 130101

- 6 -

clearly set forth, and a literal interpretation of a particular clause would defeat the obvious intent [citation]; where literal enforcement of a statute will result in great injustice that was not contemplated by the General Assembly [citation]; or where a literal interpretation would lead to an absurd result [citation].’ ” Id. (quoting Grever v. Board of Trustees of the Illinois Municip al

Retirement Fund , 353 Ill. App. 3d 263, 266-67 (2004)). ¶ 9 The Smith court acknowledged that “[i]f the statutory defini tion of ‘revocation’—the

‘ termination *** of a person’s license or privilege to operate a motor vehicle’ (emphasis added) [citation]—is given its most literal meaning, the a rgument that revocation is a singular occurrence might appear to be an ontological truism : after one’s license or privilege to operate a vehicle is terminated, it no longer exists and ther efore cannot again be terminated.” Id. ¶ 11. However, the court rejected that interpretation: “It is reasonably clear from examination of the Cod e as a whole *** that the General Assembly did not intend for the term ‘revocation’ t o be read so literally. To the contrary, ‘revocation’ appears to be used, in part, as a term of art that refers to a formal act of the Secretary and its attendant legal conseq uences. Thus, section 6-205(a) places no express limitation on the number of times the Se cretary may revoke a driver’s license. Nor does section 6-205(a) expressly limit revocatio n to cases where no prior revocation is

in effect.” Id. The court identified provisions of the Code that wo uld be either meaningless or at least partly superfluous unless the Code contemplated multiple r evocations. Id. ¶ 12. ¶ 10 The Smith court also identified absurd results that would fl ow from a literal reading of “revocation” as a singular occurrence that foreclos ed the possibility of either a future revocation or a future suspension:2014 IL App (2d) 130101

- 7 -

“[A] driver whose license is revoked and never reis sued would have no incentive to comply with the implied consent law. Such a driver , if arrested for DUI, could, without consequence, refuse the chemical testing provided f or by the implied consent law and could theoretically apply for a new driver’s licens e during the period when an otherwise similarly situated licensed driver would be prohibited from driving. It is in conceivable that the General Assembly intended such an utterly incongruous result. Moreover, *** a DUI conviction in such a case would not preclude the defendant from immediately applying for a new license. Such a result ‘makes a mockery of the law.’ [Citation.]” (Emphasis in original.) Id. ¶ 15. ¶ 11 The dissent contends that this approach “treat[s] t he law as if it were ambiguous” but then fails to apply the rule of lenity, as would be requ ired by such ambiguity. Infra ¶ 27. This is simply not the case. Like the court in Smith (and as agreed by everyone—both parties, the majority, and the dissent—in Heritsch ), we find the statute unambiguous. Ambiguity exis ts where a statute is capable of two or more reasonabl e interpretations. Nowak v. City of Country

Club Hills , 2011 IL 111838, ¶ 11. Moreover, in determining w hether the words of a statute are ambiguous, the statute must be read as a whole. People ex rel. Madigan v. Kole , 2012 IL App (2d) 110245, ¶ 31. Thus, the mere act of reading t he various parts of the Code together in no way implies that the statute is ambiguous. For the reasons stated in Smith , we find that the

Heritsch majority’s reading of the statute was not reasonab le and agree that the statute is not ambiguous. Accordingly, the rule of lenity is not applicable here. ¶ 12 The Smith decision is not the only significant development t hat occurred during the pendency of this appeal. In addition, our General Assembly amended section 6-303. See Pub.2014 IL App (2d) 130101

- 8 -

Act 98-0418, § 5 (eff. Aug. 16, 2013); Pub. Act 98- 0573, § 5 (eff. Aug. 27, 2013). Among other things, the General Assembly added subsection (a-10), which provides: “A person’s driver’s license, permit, or privilege to obtain a driver’s license or permit may be subject to multiple revocations, multiple su spensions, or any combination of both simultaneously. No revocation or suspension shall serve to negate, invalidate, cancel, postpone, or in any way lessen the effect of any ot her revocation or suspension entered prior or subsequent to any other revocation or susp ension.” Pub. Act 98-0418, § 5 (eff. Aug. 16, 2013); Pub. Act 98-0573, § 5 (eff. Aug. 27 , 2013). ¶ 13 The defendant in Smith contended that the amendment represented the Gener al Assembly’s “ ‘tacit acceptance of the [ Heritsch ] majority’s interpretation of the statute, insofar as the legislature took efforts to correct what it perceived to be a defect in the statute.’ ” Smith , 2013 IL App (2d) 121164, ¶ 17. The Smith court disagreed: “[A]lthough amendatory acts are ordinarily presumed to change the law, ‘that presumption is overcome where the nature of [the] a mendment suggests that its drafters intended to interpret or clarify the original statu te.’ [Citation.] The nature of the amendment in this case suggests clarification of th e General Assembly’s preexisting intent and a repudiation of the interpretation adop ted by the Heritsch majority.” (Emphasis in original.) Id. ¶ 14 We agree with the analysis in Smith and therefore decline to follow Heritsch

. Accordingly, we reverse the judgment of the circuit court of Du Page County and remand for further proceedings. ¶ 15 Reversed and remanded. ¶ 16 JUSTICE McLAREN, dissenting.2014 IL App (2d) 130101

- 9 -

¶ 17 The majority does not believe that the legislature means what it says, even when the legislature defines what it says. Because the majority goes out of it s way to make sure that the legislature means what the majority says, I must dissent. ¶ 18 Quoting Smith , 2 the majority maintains that “ ‘ “revocation” ’ ” i s a “ ‘term of art that refers to a formal act of the Secretary and its att endant legal consequences.’ ” S upra ¶ 9 (quoting Smith , 2013 IL App (2d) 121164, ¶ 9). However, neither Smith nor the majority here enlightens us with any rationale as to why this sho uld be so. A term of art has “a specific, precise meaning in a given specialty, apart from its general meaning in ordinary contexts

. ” (Emphasis added.) Black’s Law Dictionary 1483 (7th ed. 1999). As this court noted in

Heritsch , the Code defines “revocation of driver’s license” as “[t]he termination by formal action of the Secretary of a person’s license or privilege to operate a motor vehicle on the public highways, which termination shall not be subject to renewal or restoration except that an application for a new license may be presented and acted upon by the Secretary after the expiration of at least one year after the date of r evocation.” 625 ILCS 5/1-176 (West 2012); see

Heritsch , 2012 IL App (2d) 090719, ¶ 8. Webster’s defines “revocation” in part as “the act by which one having the right annuls something previou sly done, a power or authority given, or a license, gift, or benefit conferred.” Webster’s Th ird New International Dictionary 1944 (1993). Black’s defines “revocation” as “[a]n annulment, ca ncellation, or reversal, usu. of an act or power.” Black’s Law Dictionary 1321 (7th ed. 1999) . All of these definitions involve the same concepts: termination, annulment, cancellation . There is nothing in the statutory definition that gives “revocation of driver’s licen se” any specific, precise meaning apart from its

2 Indeed, the majority does little more than quote fr om Smith and note its agreement with

Smith ’s analysis.2014 IL App (2d) 130101

- 10 -

general meaning in ordinary contexts. By definitio n, the statutory definition of “revocation,” which is in accord with its common dictionary defin ition, is not a term of art. ¶ 19 The fundamental rule of statutory construction is t o give effect to the legislature’s intent, the best indication of which is the statutory langu age, given its plain and ordinary meaning

. People v. Davison , 233 Ill. 2d 30, 40 (2009). To give such meaning to words means to construe them with reference to the average, ordinary, norma l, reasonable person. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 115 (1992). In my opinion, both Smith and the majority here fail to relate to the plain and ordin ary meaning of the word “revocation” because they perceive and define it based upon the understa nding of licensed attorneys and jurists. They have law licenses; a reasonable person does not. I t is an oxymoron to claim that the plain and ordinary meaning of a word is a term of art. The m ajority, in stating that the word that it is defining is a “term of art,” illustrates the oxymor on: it is applying to a plainly and ordinarily defined term an unorthodox meaning that a reasonabl e person not familiar with the unordinary meaning would not understand. For example, “the te rm ‘joint custody’ is really an oxymoron that somehow has obtained legislative approval.” In re Marriage of Wycoff , 266 Ill. App. 3d 408, 419 (1994) (Steigman, J., dissenting). So, too, has “r evocation” obtained judicial approval by certain jurists. ¶ 20 I also find curious the majority’s assertion that, “[f]or the reasons stated in Smith , we find

that the Heritsch majority’s reading of the statute was not reasonab le and agree that the statute is not ambiguous.” Supra ¶ 11. First, nowhere in Smith was the Heritsch court’s reading

described as “not reasonable” or “unreasonable.” S econd, the majority does not explain how applying a word as it is defined by statute and in accord with the plain and ordinary meanings provided in common-usage dictionaries can be unreas onable. Revocations are authorized in other2014 IL App (2d) 130101

- 11 -

sections of the Illinois Compiled Statutes. U nder circumstances enumerated in section 8 of the Firearm Owner’s Identification Card Act (430 ILCS 6 5/8 (West 2012), the Department of State Police has the authority to “revoke and seize a Fir earm Owner’s Identification Card previously issued”; is such a revocation also a mere “formal a ct” on the part of the Department of State Police? If a person’s card is revoked for a felony conviction, may it subsequently be revoked because the person becomes addicted to narcotics, e ven though the person has never even sought to obtain another card? See 430 ILCS 65/8(c), (d) (West 2012). Is the revocation of a card nothing more than an “ontological truism” or does i t have a concrete meaning and real consequences? ¶ 21 The majority mentions in passing Smith ’s claim that certain provisions of the Code would be “either meaningless or at least partly superfluo us unless the Code contemplated multiple

revocations.” Supra ¶ 9. Smith contended: “[S]ection 6-208(b)(1.5) of the Code formerly provi ded, ‘If the person is convicted of a

violation of Section 6-303 of this Code committed w hile his or her driver’s license, permit, or privilege was revoked because of a viola tion of Section 9-3 of the Criminal Code of 1961, relating to the offense of reckless h omicide, or a similar provision of a law of another state, the person may not make applicati on for a license or permit until the expiration of 3 years from the effective date of the most recent revocation. ’ (Emphasis added.) 625 ILCS 5/6-208(b)(1.5) (West 2008). The words ‘most recent’ would have been superfluous if the revocation of a driver’s li cense were a singular occurrence.”

Smith , 2013 IL App (2d) 121164, ¶ 12.

“[F]ormerly provided”? Section 208(b)(1.5) was ame nded, effective January 1, 2008, removing the phrase “effective date of the most recent revoc ation” and replacing it with the phrase “date of2014 IL App (2d) 130101

- 12 -

the conviction.” Pub. Act 95-377, § 5 (eff. Jan. 1 , 2008) (amending 625 ILCS 5/6-208(b)(1.5) (West 2006)). ¶ 22 It is very interesting that a panel of this court w ould use an out-of-date statutory provision to support its current interpretation of a statute. It is puzzling that the panel would use an out-of-date statutory provision that had been amend ed to specifically delete the very words upon which the panel relied in its analysis to support its position and affirm a criminal conv iction. No words of section 6-208(b)(1.5) as it existed when t he defendant in Smith was charged and when the opinion was written would have been rendered “super fluous” by the Heritsch analysis. Smith ’s casual toss-in of “formerly provided” is negligent, at best. ¶ 23 Smith also argued that section 6-205(c)(2) of the Code ( 625 ILCS 6-205(c)(2) (West 2012)), involving ignition interlock devices and re stricted driving permits for individuals “revoked *** due to 2 or more convictions,” would be “meanin gless” if Heritsch prevailed. Smith , 2013 IL App (2d) 121164, ¶ 12. Sauce for the goose being s auce for the gander, I assert that nothing in section 6-205 of the Code as it formerly provided w ould be offended or rendered meaningless by

Heritsch . See 625 ILCS 6-205 (West 2000). In fact, sectio n 6-205(h) provided for ignition interlock devices when granting “driving relief” to “individuals who have been arrested [not revoked] for a second or subsequent offense.” (Emp hasis added.) 625 ILCS 6-205(h) (West 2000). ¶ 24 The claims that absurd results must ensue from the application of the Heritsch definition (see Smith , 2013 IL App (2d) 121164, ¶ 13; Heritsch , 2012 IL App (2d) 090719, ¶ 30 (Birkett, J., dissenting)) suggest that a defendant whose license was revoked because of a DUI would be inclined to apply for a license with impunity. 3 Such an enthymeme is valid only if it is

3 The State’s additional claim here that the charge w ill always remain a misdemeanor2014 IL App (2d) 130101

- 13 -

completed with the additional premise that any appl ication would be granted by the Secretary of State. Curiously, Smith implicitly assumes, contrary to law, that such an application would be successful. The Secretary is not required to issue a license to everyone who applies; the Secretary shall issue a license “to every qualifying applicant.” (Emphasis added.) 625 ILCS 5/6-110(a) (West 2012). Section 6-103 of the Code (625 ILCS 5/6-103 (West 2012)) even provides a lengthy list of persons who “shall not” be licensed. Most importantly to the discussion here, the Secretary is not to issue a li cense to a person whose license to drive has been

revoked: “unless and until such person has had a hearing pu rsuant to this Code and the appropriate administrative rules and the Secretary is satisfied , after a review or investigation of such person, that to grant the privilege of driving a mo tor vehicle on the highways will not endanger the public safety or welfare.” 625 ILCS 5 /6-208(b)(5) (West 2012). I submit that we would not see our roads clogged wi th hordes of dangerous and/or ineligible licensed drivers even if such persons were not stat utorily dissuaded from applying to the Secretary. Even more absurd is the fact that the l egislature has not imposed a penalty for filing a premature application for a new license, short of the applicant perjuring himself by making a false application or affidavit. See 625 ILCS 5/6-3 02 (West 2012). In any event, application of

the Heritsch definition would not create the havoc claimed by Smith , because the Secretary is not likely to rubber-stamp these alleged myriad applica tions. Neither the Smith court nor the majority here has perfected a proof that establishes that the cle ar language of the statute results in absurdity. See People v. Moreland , 2011 IL App (2d) 100699, ¶ 12 (State’s contention that

under Heritsch fails. If a subsequent conviction is for the same charge as the original revocation, then it is a felony.2014 IL App (2d) 130101

- 14 -

failure to reverse trial court would “encourage def endants to manipulate the process for rescission hearings” was “true only if trial courts allow it”). ¶ 25 Additionally, Smith ’s claim that a literal reading of revocation would lead to absurd results as applied to the implied consent law is a non sequitur . See supra ¶ 10 (quoting Smith , 2013 IL App (2d) 121164, ¶ 15). Whether a driver’s license is revoked once or a dozen times, such a driver has the same incentive to comply (or not com ply) with the implied consent law. Also, the claims regarding such a driver’s theoretic and immediate applications for a new license again run into the actual reality that the Secretary of S tate does not have to grant such an application.

The fears of Smith and the majority here are hyperbolic. ¶ 26 I believe that Heritsch was correctly decided and controls the outcome of this case. I say this based not upon the ratio decidendi of the Heritsch majority. I say this because Smith , upon which the majority here relies, incorrectly cr iticized Heritsch . The State in Smith claimed

that the dissent in Heritsch was the correct position and that the holding in Heritsch should be abrogated. 4 However, the State failed to recognize that, in Heritsch , both it and the defendant agreed that the statute was clear and unambiguous o n its face. See Heritsch , 2012 IL App (2d) 090719, ¶ 8. The State did not argue the alternati ve—that the statute was ambiguous and needed outside sources for interpretation. 5

4 The Smith majority rightly recognized that it lacked the pow er to grant the State’s request. See Smith , 2013 IL App (2d) 121164, ¶ 7.

5 However, the defendant in Heritsch did argue in the alternative and claimed that the rule of lenity would apply if the statute were ambi guous: “Alternatively, defendant argues that,

if the term ‘the revocation’ as used in section 6-3 03(d-5) of the Code is ambiguous, the rule of lenity mandates a finding that the enhanced sentenc ing provision does not apply to him and that his2014 IL App (2d) 130101

- 15 -

¶ 27 The majority in Heritsch decided the merits of the case based upon the part ies’ agreement that the statute was clear and unambiguous. Curiou sly, while the dissent in Heritsch noted the State’s agreement with the defendant (see Heritsch , 2012 IL App (2d) 090719, ¶ 20 (Birkett, J., dissenting)), it concluded that the contrary result was required; in doing so, it disregarded the parties’ agreement, treated the law as if it were a mbiguous (despite the statutory definition and the plain and ordinary meaning of the term “revocat ion”), and proceeded in that manner to conclude differently from the majority. However, t he dissent failed to consider, in light of its disagreement with the majority’s analysis and concl usion, whether the law was ambiguous such that the rule of lenity should apply. See People v. Carter , 213 Ill. 2d 295, 302 (2004) (“Where a criminal statute is capable of two or more construc tions, courts must adopt the construction that operates in favor of the accused.”). Had the disse nt considered the rule of lenity in its analysis, I

submit that it should have come to the same result as the majority, as lenity should have been applied. ¶ 28 In Smith , Justice Birkett, who also authored the dissent in Heritsch , made no attempt to distinguish Heritsch even though, in Smith , the parties neither mentioned nor discussed the possible ambiguity of the penal statute and the pro per application of the rule of lenity. The State argued that Heritsch should be abrogated, without either acknowledging its prior position that the statute was unambiguous or considering tha t the rule of lenity would apply based upon

its claim that outside sources would be needed to e stablish the reasonableness of the Heritsch

dissent’s conclusion. Stare decisis means that precedent should normally be followed; “a question once deliberately examined and decided sho uld be closed to further argument, ensuring

conviction should be modified to misdemeanor DWLR a nd that he should be sentenced accordingly.” Heritsch , 2012 IL App (2d) 090719, ¶ 19 (Birkett, J., disse nting).2014 IL App (2d) 130101

- 16 -

that the law will develop in a ‘principled, intelli gent fashion,’ immune from erratic changes.” 6 People v. Clemons , 2012 IL 107821, ¶ 9 (quoting People v. Colon , 225 Ill. 2d 125, 146 (2007)). However, if a prior decision is distinguishable, it is not precedent, and stare decisis is not implicated. People v. Trimarco , 364 Ill. App. 3d 549, 556 (2006) (McLaren, J., di ssenting). Thus, the arguments raised by the parties in Smith (and here) are inappropriate. Rather, what should have been addressed, if Smith and the majority here have decided that the argume nts in

Heritsch were either abandoned or procedurally defaulted, w as, at minimum, the applicability of the rule of lenity to the ambiguity of a penal stat ute. As the majority acknowledges, defendant claims that the interpretation in Heritsch was reasonable. Assuming, arguendo , that defendant would concede that the majority’s analysis here is reasonable, there would be more than one reasonable interpretation that can be given to a pe nal statute, and lenity would apply. Thus, the majority is only partially correct in claiming that the parties agree that lenity in not an issue, especially since defendant did not know of the Smith decision when he filed his reply brief. ¶ 29 In his dissent in Heritsch , Justice Birkett propagated the State’s truncated analysis, and he repeated it in Smith , where the court determined that the clear languag e of section 6-303(d-5) of

the Code would create absurd results. Therefore, Smith interpreted the law so as to suggest that the “ontological truism” of the statutory language should not be followed. Smith , 2013 IL App (2d) 121164, ¶ 11. The cardinal rule of statutory construction is to ascertain and give effect to the legislature’s intent; the best indication of that intent is the language used in the statute, which must be given its plain and ordinary meaning. People v. McClure , 218 Ill. 2d 375, 381-82 (2006).

6 While Smith and the majority here point out that stare decisis does not make the opinion of one panel of an appellate court binding on anoth er panel ( supra ¶ 6), they fail to note our supreme court’s preference for principled, intellig ent development of the law.2014 IL App (2d) 130101

- 17 -

“When the statutory language is unambiguous, courts must construe the statute as written, without resorting to other aids of construction.” Moreland , 2011 IL App (2d) 100699, ¶ 7 (citing People v. Bywater, 223 Ill.2d 477, 481 (2006)). And that is what was done by the majority in Heritsch

and not done by the dissent in Heritsch . Unfortunately, neither Smith nor the majority here seems to recognize that simple distinguishing fact, or that, even if the statute were ambiguous, the ambiguity should have resulted in lenity. The dissent in Heritsch and the analysis in Smith do little more than suggest that, because other sta tutes are more precisely written, the courts are to adopt the most punitive interpretation. That is a perversion of both the rule of lenity and the application of the plain and ordinary language cont ained in a statute, with a bias in favor of the

State. ¶ 30 In Heritsch , we noted that the legislature could have used “in clusive language” such as “ ‘any revocation’ ” instead of “ ‘the revocation’ ” in drafting section 6-303(d-5) “but i t apparently declined to do so.” Heritsch , 2012 IL App (2d) 090719, ¶¶ 10, 11. To the exten t that the plain meaning of the statute created “unsa tisfactory or anomalous” results, “it is up to the legislature to correct that problem.” Id

. The legislature has now done so, amending section 6-303 to add subsection (a-10), which provides:

“A person’s driver’s license, permit, or privilege to obtain a driver’s license or permit may be subject to multiple revocations, mult iple suspensions, or any combination of both simultaneously. No revocation or suspensio n shall serve to negate, invalidate, cancel, postpone, or in any way lessen the effect o f any other revocation or suspension entered prior or subsequent to any other revocation or suspension.” Pub. Act 98-0418, § 5 (eff. Aug. 16, 2013); Pub. Act 98-0573, § 5 (ef f. Aug. 27, 2013).2014 IL App (2d) 130101

- 18 -

¶ 31 Thus, the legislature has now determined that a dri ver’s license may be revoked or suspended even when it does not exist because it wa s already revoked. It has clearly shown that it wishes to adopt the term of art that the majority i s prematurely applying here on the basis that the legislature was merely attempting to clarify its “p reexisting intent” and repudiate the Heritsch interpretation. Smith , 2013 IL App (2d) 121164, ¶ 17. If the legislatur e originally intended something other than the plain and ordinary languag e that a reasonable person without a law license would understand, it could have enacted thi s definition of “revocation” instead of the definition that it did enact originally. ¶ 32 I submit that the majority is either unwilling or u nable to see the forest for the trees. It has used multiple faulty rationales to conclude that th e plain and ordinary meaning of “revocation” is a term of art. According to the majority, the interp retation in Heritsch is unreasonable. I submit that the interpretation in Heritsch is the plain and ordinary meaning , based upon what a reasonable person without extensive experience of the “practic al oxymoron” would understand. The majority is not only applying what licensed attorne ys and present jurists deem to be “plain and ordinary”; it is either unwilling or unable to acce pt that the amendment, which the majority claims does not depart from prior law, is a clarification only if one disregards the original statutory definition of “revocation” and disregards the ontol ogical truism that a revocation is a singular termination. The fact that the legislature decided to alter the statutory definition of “revocation” from its original definition of a single act to a d efinition of multiple acts does not undermine the reasonableness of the holding in Heritsch ; it confirms it. ¶ 33 As the supreme court pointed out in People v. Petrenko , 237 Ill. 2d 490, 510 (2010), the legislature may pass legislation that flies in the face of ontological truisms and natural science if it clearly intends to enact legislation that does n ot comport with common sense and the everyday2014 IL App (2d) 130101

- 19 -

experiences in life. It is not unconstitutional fo r the legislature to reshape concepts or redefine words even though such an undertaking is impractica l or illogical. In Petrenko , the court overruled a portion of its decision in People v. Palmer , 218 Ill. 2d 148 (2006), and concluded that it was not impermissible, under either statuto ry or natural law, to sentence a defendant to serve a 10-year term in prison consecutive to a ter m of natural life; as the legislature had authorized such sentencing in the Unified Code of C orrections, courts are to enforce the statute “without regard to the practical impossibility of s erving the sentences it yields.” Petrenko , 237 Ill. 2d at 506-07. The legislature may, in its wis dom, legislate the absurd or the unnatural; if it does so in unambiguous language that, given its pla in and ordinary meaning, demonstrates the legislature’s intent, we must give effect to that i ntent. As of August 2013, such a legislative intent has been expressed, but it is applicable onl y to offenses committed after the effective date of the statutory amendment! ¶ 34 Defendant was charged before the unambiguous langua ge in the amendment demonstrated the existence of such an unnatural legislative inte nt. The amendment shows that the legislature knows how to specifically authorize multiple, concu rrent revocations and suspensions of a person’s driving privileges. In the absence of suc h an authorization before August 2013, defendant should be entitled to the protection of t he logical interpretation of the clear expression o f a natural legislative intent that existed when he w as charged. See Carter , 213 Ill. 2d at 303-04. Thus, the trial court’s judgment should be affirmed

.