No. 3–07–0043

______________________________________________________________________________ Filed January 18, 2008 IN TH E AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2008 THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the Circuit Court Plaintiff-Appellee, ) for the 1 4th Judicial Circuit, ) Henry

County , Illi

nois ) v. ) No. 06–CF–443 ) JON R. BLOOMBERG, ) Honorab le Defend ant-App ellant. ) Ted J. Hamer ) Judge, Presiding

______________________________________________________________________________ JUSTICE O’BRI EN delive

red the o pinion of t

he court :

______________________________________________________________________________ Follow ing a stipulated bench trial, defendant Jon Bloomberg was f ound guilty of driving while license suspended (DWLS). 625 IL CS 5/6-303 (West 2006). He was sentenced for a fe lony under the felo ny s entenci

ng provisions of se ction 6-3 03(d) of the I llinois Ve

hicle Code

(Vehicl e Code) to a term of 30 months’ conditional discharge and 300 hours of commun ity service , and ordered to pay various costs and

fines. 62 5 IL CS 5/6-303( d) (West 20 06). He a ppealed his sentence. We affirm. FACTS Defendant

Jon Bloomberg was arrested on Novembe

r 16, 2006 , for dri

ving whi le his lice

nse

was suspende d in

violation of section 6-303 of the Vehicle Code. 625 ILCS 5/6-303 (West 2006). Bloomberg’s license had been summarily suspended on October 30, 2006, under section 11-501.1 of the Vehicle Code. 625 ILCS 5/11-501.1 (West 2006) (statutory summary suspension). Following2

a stipulated bench trial in December 2006, Bloomberg was found guilty

of DWLS. The State sought felony sentencing based on a prior DWL S offense committed by Bloomberg

in 1998. At that time, Bloomberg

had pled guilty to DWL S and was sentenced to court supervision. Bloomberg

success fully

served his term of supervision and the 1998 DWLS char ge was dismissed. The record indicates that the 1998 suspension was not an enhanced suspension. Inthe instant case, Bloomberg contended in the tria l court that he should not be sentenced for felony D WLS pursuant to section 6-303(d) but for misdemeanor DWLS pursuant to section 6- 303(a) as a first-time offender. 625 IL CS 5/6-303(a), (d) (West 2006). After taking the issue under adviseme nt, the trial court disagreed with Bloomberg and sentenced him under the felony provisions to a term of 30 months’ conditiona l disch arge and 300 hours of community service, and assessed costs and fines. He was further require d to submit DN A samples for the national database. Bloomberg followed with this appeal. ANA LYSIS The sole issue

on appea

l is whether the trial court erred when it sentenced B loomberg pursuant to the fe lony

provision s as set forth in

section 6-303(d) of the Vehicle Code. 625 I LCS 5/6- 303(d) (West 2006). Bloomberg complains that he was improperly sentenced under the felony sentencingprovisions. He argues that because his 1998 DWL S resulted in a sentence of court supervisionwhich he successfully served, it cannot be considered a first offe nse, and he should

have been sentenced in the instant case under the misdemea nor provisions. Section 6-303 of the Vehicle Code, defining the offe nse of driving while license suspended, provides , in rele

vant par t: “(a) Any person

who drives or is in actual phy sical control of3 a motor veh

icle on a ny h ighway of this State at a

time when such person’s driver’s license *** is revoked or suspended as provided by this Code *** shall be guilty of a Class A misdemea nor.

*** (d) Any person c onvicted of a second violation of

this Section shallbe guilty of a

Class 4 felony and

shall serve a minimum term of imprisonmentof 30 days or 300 hours of community service, a s determined

by the court, if the revocation or suspension was for ***

a statutory summary

suspension under Section 11-501.1 of this Code [625 ILCS 5/11-501.1].” 625 I LCS 5/6-303 (West 2006). This case involves an issue of statutory construction, which

is a question of law we review de novo . People v. Smith , 345 Ill. App. 3d 179, 185, 802 N.E.2d 876, 880 (2004). The car dinal rule of statutory construction is to ascertain and give effe ct to the intent of the legislature. Smith , 345 Ill. App. 3d at

184, 802 N .E.2d at 8 80. The be st indi cator o f the l egisla ture’ s int ent is the la nguage of the statute, which should be given its plain and ordinary meaning. Smith , 345 Ill. App. 3d at 184, 802 N.E.2d at

880. In determining the leg islature’s intent, a court should also consider the reason the law was enacted, theproblems it is intended to remedy, and the objects a nd purpos es soug

ht with its enactment. Smith , 345 I ll. App. 3d at 185, 802 N.E.2d at 880. Where the legisla ture ame nds a statute, stri king wo rds, i t is t o be co nclud ed tha t it d elibe ratel y intende d to ch ange the law. People

v. Bradle y M. , 352 I ll. App. 3d

291, 296, 8 15 N.E.2d

1209, 1213 (2004). I

t should also be presumed that an amendme nt is m ade for some purpose and effec t should be given to the amendment in a matter consiste nt w ith that purp ose. Bradle y M. , 352 Ill. App. 3d at 296, 815 N.E.2d at 1213.4

Sect ion 6-3 03(d) provides that a DWLS offender with a prior conviction for DWLS may be sentenced as a Class 4 felon if the revocation was based o n, inter al ia , a statutory summary suspension. 625 I LCS 5/6 -303(d)(West 2006 ); Smith , 345 Ill. App. 3d at 185, 802 N.E.2d

at 880. The purpose of

section 6 -303(d)of the Ve hicle Code is to punish repeat offenders more severely than first-time offenders. Smith , 345 Ill. App. 3d at 185, 802 N.E.2d at 880. Bloomberg

contends that

the trial court’s interpretation of section 6-303(d) was not aligned with the leg islative i

ntent of the statute

and lead s to absur

d and unju st

results. He points to the prior versionof the statute a s support f or his con tention tha

t the tria l court’s interpre tation impr

operly allows h im to be sentenced for a felony for his first DWLS conviction following an enhan ce d suspension if he had any

past DWLS violation, regardless of its basis. The trial court correctly

interpreted the statute’s plain language in sentencing Bloomberg as

a felon. Pr

ior to its a

mendment

effec tive Aug

ust 1, 2001, section 6-303(d) provided that any one convicted of a second or

subseque nt violation of DWL S would be g uilty of a Class 4 felony if the original suspension was for an enha nced viol ation, suc

h as statu tory summary

suspension. All parties agree that

under that version of

the statute, Bloomberg would not be eligible to be sente nced

as a felon because his original suspension was not for a n enhanced violation. Amend ment o f the statute included , in part, deleti on of “original” (suspension). By amending the statute in that manner, the legislature intended to broaden the scope of felony sentenc ing to ind ividu als whose second DWLS occurred while they were s uspen ded for one of the enumera ted enha ncement s, including statutory summary suspension. Because Bloomberg was convicted o f DW LS in Dece mber 20 06, and his license had been suspended pursuant to section 11-501.1 of the Ve hicle Code, th e felony sentenc ing prov

isions app ly to

him under a plain reading of

the statute. Had the legislature5

notintended

to focus on a party ’s curr ent suspe nsion to de

termine i f it

was for an

enumerated enhancement, it would not have deleted “origina l” when amending the statute. The Fourth District

recently a

ddressed the instant issue in People v. Kennedy , 372 Ill. App. 3d 306, 867 N.E.2d 1154 (2007). The Kennedy court analyzed se ction 3-606, describing it as constituting two sets of penal ty schemes. K ennedy , 372 Ill. App. 3d at 308, 867 N.E.2d at 1156. The first set concerns individuals who have one or more DWL S convictions and a sus pension o r revocation

wh ich was not the result of an enumerated enhanc ement such as statutory summar y

s uspension. Ken nedy , 372 Ill. App. 3d at 308, 867 N.E.2d at 1156. The second se t of penalties applies to person s w ho h ave DWL S convicti ons and the suspension or revo cation r esulted f rom a violation of the enhancements. Kennedy , 372 Ill. App. 3d at 309, 867 N.E.2d at 1156. I n the instant case, Bloomberg

was conv

icted of DWLS in

Decemb er 2006 a

nd his suspe

nsion at th e time of h

is DW LS offense

was a statutory summary suspension, one of

the enume

rated e nhance ments. Giving effect to the 2001 amendment, the statute’s plain language nece ssitates that Bloomberg be subject to the felony sentenc ing provisions. Bloomberg

fur th er a ss ert s t hat hi s 19 98 D WLS should not be considered his first offense for sentencing pu

rpose s becau se he s uccess fully com plete d his court super visi on, re sult ing in a dismissa l of the charge. Accor

ding to Bloomberg, counting his 1998 DWL S as a first of fense is contrar y to the court supervision

statutes because successful completion of court supervision does not result in an adjudication of guilt. “Supervision” is defined in the Unified Code of Corrections (Corre ctions Co de) as “a disposition of conditional and revocable release w ithout proba tion ary super vision, *** at the successful conclusion of

which disposition the defendant is discharged and a judgment dismissing6

the charges is entered.” 730 ILCS 5/5-1-21 (West 2006). When a defendant is placed on supervision, judgme nton the charges and all further pr oceedings are defer

red until the period of super visio n concludes. Kirwan v. Welch , 133 Ill. 2d 163, 166, 549 N.E.2d 348, 349 (1989). Section 5- 6-3.1 of t

he Corre ctions Code

provides : “(e) At the conclusion of the period of supervision, if the court determines that the d

efenda nt has suc cessful ly c omplied wi t h a ll of the conditions of supervision, the court shall discharge the defe ndant and enter a judgment dismissing the charg es. (f) Dischar

ge and dismissal u

pon a suc cessful

conclusi o n o f

a disposition

of super vision sha

ll be deemed

without adjudication of guilt and shall

not be te rmed a conviction for purposes of disqualificationor disabilities imposed by law upon conviction of

a crime. Two year

s after the discharge and

dismissal u

nder this Section

*** a person may

have his record of

arrest sealed

or expunged as may be provided by law .” 730 IL CS 5/5-6-3.1(e), (f) (West 2006). The phrase “shall not

be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime” is interpreted to include only the rights and privileges statutori ly d

enied toa convicted offender. People v. Hightower , 138 Ill. App. 3d 5, 9, 485 N.E.2d 452, 455 (1 985), quot ing People v. Talach , 114 Ill. App. 3d 813, 826, 448 N.E.2d 638, 647 (1983). Examples of the affected rights and privileg es include the rights to vote, poss ess a fir

earm, a nd hold public office. Talach , 114 Ill App. 3d at 826, 448 N.E.2d at 647. In People v. Sheehan , 168 Ill. 2d 298, 301, 659 N.E.2d 1339, 1340 (1995), the court7

considered

the defendants’ argument that their driving under the in flu enc e (D UI) offenses resulting insuccess fully com

pleted terms of supervision could not be used to enhance a later charge. The Sheehan court determined that the legislature’s use of the term “committed” in the felony DU I statute, rather than “convicted,” mandated a broader interpretation and include d prior offenses for whichthe defendants successfu lly c omple ted court supervision. Sheehan , 168 Ill. 2d at 306, 659 N.E.2d at 1343. It further noted that had the legislature intended

enhanc ing off

enses to i nclude on ly those resulting from con

victions, it would ha

ve so stated. Sheehan , 168 Ill. 2d at 307, 659 N.E.2d at 1343. Based on the languag e of the felony DUI statute, the

Sheehan court also concluded that the

use of a “committed” o ffense that resu lted in suc cessful

supervis ion to enhan ce a sub seque nt cha rge

was not contrary to the supe rvision statute’s provision that supervision is “without adjudicationof guilt.” Sheehan , 168 Ill. 2d at 308, 659 N. E.2 d at 134 3. In the court’s view, a defendant not adjudica te d gu il ty as a result of successful supervision does not mean that the defe ndant did not commit the offense for which he served a term of supervision. Sheehan , 168 Ill. 2d at 308, 659 N.E.2d at 1344. In People v. Jones , 306 Ill App. 3d 793, 80 2, 715 N.E.2d 256, 262-63 (1999), the court distinguished

“conviction” from “violation,” in construing whether the de fendant, who had been charged with, but not convicted of, prior offenses of domestic battery , was properly

sentenced under the domestic battery fe lon y senten cing pr ovisions a

pplicabl e to second and sub sequent o ffende rs. The court compared the definition of “conviction” with “violation,” construing “v iolation” to be broader in scope and inclusive of the defendant’s prior domestic batter y arre sts. Jones , 306 Ill App. 3d at 802, 715 N.E.2d at 262. In Smith , 345 Ill. App. 3d at 182, 802 N .E.2d at 8 78, at issue was whether the trial court8

could co nsider, in imposing an enhanced sentence, a DUI conviction resulting f rom a bond forfe iture

. Construing sect ion 6-303(d) of the Vehicle Code, the court held that the felony enhancement was proper, determin

ing that the term “ convicti on” as se t forth in t he applic able provisions of the Vehic le Code included convictions that resulted from a bond forfeiture. Smith , 345 Ill. App. 3d at 186, 802 N.E.2d at 882. The Smith

court, like the court in Jones , differ entiated the terms “conviction” and “violation,” also determining that “violation” was broader in scope than “conviction.” Smith , 345 Ill. App. 3d at 186, 802 N.E.2d at 882. Section 6-303(d) states that “any person convicted

of a second

violation o f this Sec tion shall be guilty of a

Class 4 fe lony .” The sta tute does not require that the person be twice convicted but rather convict ed of a second

violation. As noted in Sheehan , the fact that Bloomberg was not adjudicated guilty

as a result of his successful completion of court supervision does not mean that he did not violate the DWLS statute. As discussed in Jones and Smith , had the legislature intended the enhancing offenses to include only those subsequent offenses for which a defe ndant was convicted, it would have used “conviction” instead of the broader “ violation.” As defined

insection 6-100 of the Vehicle Code, conviction is “a final adjudication of g uilty by a court of

compete nt jurisdiction either after a

bench trial, trial by jury

, plea of guilty, order

of forfeiture, or default.” 625 IL CS 5/6-1 00 (W est 2006) . Violation is not def ined in se ction 6-1 00 but has b een pre viously define d as an ‘ “[i]njury; infringeme nt; breach of right, duty

or law; ravishment; seduction. The act of breaking, infringing , or transgressing the law.’ ” Jones , 306 Ill App. 3d at 802, 715 N.E.2d at 262-63, q uoting B lack’s L

aw Dictionary

1570 (6th ed. 1990). The record is clear that Bloomberg did in fact commit a breach of lawwit h hi s 19 98 D WLS offense, notwithsta

nding his succe ssful comp letion of c ourt supe rvision. A s the 1998 o ffense9

constitutes a violation, he was properly sentenced under

the felony sente

ncing provisions for secondtime offenders. Based on the plain lang uage of section 6-303(d), the trial court properly applied the felony sentencing provisions to Bloomberg. For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed. Affirmed. SCHMIDT, J., concurs. JUSTICE HOLDRIDGE, dissenting: At issue is whether a successfully completed court supervision constitutes a prior conviction for purposes of section 6-303(d) of the Illinois Vehicle Code (625 ILCS 5/6-303 (West 2006). Because I believe that it cannot, I respectfully dissent. Sect ion 6-303(d) of the Vehicle Code requires that "[a]ny person convicted of a second violation of this Section shall be guilty of a Class 4 felon y." (Emphasis added.) Simply put, in order to be convicted of a second violation under section 6-303(d)

a defendant must have been convicted of a first violation under this section. The record is clear that the instant offense is the defendant’s first conviction under the Act. His previous arrest, for which he su ccessfully completed a term of court supervision, was discharged "without adjudication of guilt." (730 ILCS 5/5-6- 3.1(f)(West 2006). A conv iction is statutorily defined as "a judgment of conviction or sentence entered upon a plea of guilt y or upon a10

verdict or finding of guilty of an offense." 730 ILCS 5/2-5 (West 2006). For there to be a conviction, there must have been a judgment of conviction or sentence. Here, the defend ant, h aving successfully completed a term of court supe rvi sion, there is no judgment of conviction. Thus, he was not convicted of a previous violation. The majority’s focus on the dependent clause "and shall not be termed a conviction for purposes of disqualific ation or disabilities imposed by law upon conviction of a crime," is misplaced. That phrase may, as th e majority notes, speak to the issue whether successful completion of supervision affects rights such as the right to vote. However, such is not the issue in this matter. The phrase quoted by the majority does not negate the fact that completion of supervision is not a conviction. The statute clearly states that completion of supervision is not an adjudication of guilt ( i . e ., a conviction) and shall not be termed

a conviction for purposes of disqualification or disability imposed by other law. I also disagree with the ma jority’s reading of People v. Sheehan , 168 Ill. 2d 298, 301 (1995). "There can be no dispute that the term "committed," in its ordinary sense, has a broader scope than the term "convicted." Sheehan , 168 Ill. 2d at 3 06. Here, the statute at issue, unlike the one at issue in Sheehan , provides for felony status only where the defendant was previously11

"convicted" of the same offense, not where he had "committed" the same offense. For the foregoing reasons, I would reverse the defendant’s conviction an d re mand for further proceedings. I therefore, respectfully, dissent.