                            2015 IL App (2d) 131266
                                   No. 2-13-1266
                          Opinion filed December 23, 2015
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of McHenry County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 08-CF-695
                                       )
RICKY L. McGUIRE,                      ) Honorable
                                       ) Gordon E. Graham,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUDSON delivered the judgment of the court, with opinion.
       Justices McLaren and Birkett concurred in the judgment and opinion.

                                            OPINION

¶1     Defendant, Ricky L. McGuire, appeals from the dismissal of his pro se petition under the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On appeal, rather

than contending that his postconviction petition was dismissed in error, defendant contends that

his conviction is void and must be reversed. We affirm.

¶2                                      I. BACKGROUND

¶3     Following a jury trial, defendant was convicted of aggravated operating a watercraft

under the influence of alcohol in violation of section 5-16(A)(1) of the Boat Registration and

Safety Act (the Boat Act) (625 ILCS 45/5-16(A)(1) (West 2008)). On November 12, 2010, the

trial court sentenced him to a 10-year prison term.
2015 IL App (2d) 131266


¶4      On direct appeal, defendant argued that he was denied due process when the jury

received conflicting instructions on proximate cause and that his sentence was excessive. People

v. McGuire, 2011 IL App (2d) 101248-U. We affirmed. We found that defendant forfeited the

instruction issue because he failed to provide a complete record on appeal and that defendant

forfeited plain-error review by failing to ask for it. Id. ¶¶ 15-16. Nevertheless, we found that, to

the extent that the instruction at issue was error, it was harmless. Id. ¶ 17. We noted that, to

prove defendant guilty of Class 2 felony operating a watercraft while under the influence, the

State was not required to prove that defendant’s act was the proximate cause of the victim’s

death; rather, it was required to prove only that defendant’s act “ ‘result[ed] in the death of a

person.’ [Citation.]” Id. Thus, we found that any error favored defendant because it required the

jury to find the additional element of proximate cause, which was not required under the statute.

Id. ¶ 18.

¶5      Defendant filed a pro se petition for leave to appeal, which was denied. People v.

McGuire, No. 113689 (Ill. Mar. 28, 2012).

¶6      On June 21, 2013, defendant filed a pro se postconviction petition under the Act (725

ILCS 5/122-1 et seq. (West 2012)). The State moved to dismiss. On November 22, 2013, the

trial court dismissed the petition, finding that the petition was untimely and that defendant failed

to allege sufficient facts to establish that any delay was not due to his culpable negligence. See

725 ILCS 5/122-1(c) (West 2012). The court further found that seven of defendant’s eight

claims were barred by res judicata and that his remaining claim, alleging ineffectiveness, failed

due to lack of prejudice.

¶7      Defendant timely appealed.

¶8                                      II. ANALYSIS



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¶9      On appeal, rather than contending that his postconviction petition was dismissed in error,

defendant contends that his conviction is void and must be reversed. Specifically, defendant

maintains that section 5-16(A)(1) of the Boat Act was impliedly repealed by the more recently

amended section 11-501 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501 (West

2008)), which “speak to the operation of a watercraft” and “irreconcilably conflicts” with the

relevant provisions of the Boat Act. Thus, according to defendant, his conviction is void.

¶ 10    In response, the State first contends that defendant’s petition was properly dismissed as

untimely under the Act and, further, that defendant forfeited his present argument by failing to

raise it in his petition. On the merits, the State argues that the two provisions do not conflict, as

they do not relate to the same subject matter.

¶ 11    Defendant concedes that his petition was properly dismissed as untimely, but he contends

that he may properly challenge his conviction as void for the first time on appeal. The State

argues (assuming that defendant’s substantive argument has merit) that the judgment here is not

void, because, even if the court had “made a mistake” in entering a conviction, the court’s error

did not divest it of jurisdiction.

¶ 12    Very recently, in People v. Castleberry, 2015 IL 116916, the supreme court made clear

that, even in a criminal case, a judgment is void only if the court lacked jurisdiction, which

consists of only two elements: subject matter jurisdiction and personal jurisdiction. Id. ¶ 12.

Subject matter jurisdiction, which is the element at issue here, “refers to a court’s power to hear

and determine cases of the general class to which the proceeding in question belongs.

[Citation.]” (Internal quotation marks omitted.) Id. More specifically, an Illinois circuit court

has subject matter jurisdiction over any “justiciable matter, i.e., a controversy appropriate for

review by the court, in that it is definite and concrete, as opposed to hypothetical or moot,



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2015 IL App (2d) 131266


touching upon the legal relations of parties having adverse legal interests. [Citation].” (Internal

quotation marks omitted.) Id. ¶ 15. “[W]hile the legislature can create new justiciable matters

by enacting legislation that creates rights and duties, the failure to comply with a statutory

requirement or prerequisite does not negate the circuit court’s subject matter jurisdiction.

[Citation].” (Internal quotation marks omitted.) Id.

¶ 13   Here, it is arguable that the State’s charge that defendant committed aggravated operating

a watercraft under the influence of alcohol presented a “justiciable matter,” i.e., a definite and

concrete controversy appropriate for review by the court, regardless of whether the statute

defining that offense was valid. But it is arguable also that the charge presented a “justiciable

matter” only because, by enacting section 5-16(A)(1) of the Boat Act, the legislature created that

justiciable matter, which, if that statute were repealed, no longer existed. We need not decide

this issue, however. As we explain, section 5-16(A)(1) of the Boat Act was not repealed. Thus,

in any event, the trial court had subject matter jurisdiction and its judgment is not void.

¶ 14   Defendant argues that section 5-16(A)(1) of the Boat Act irreconcilably conflicts with

section 11-501(d)(1)(F) of the Vehicle Code, as “both provisions *** punish the operation of a

watercraft under the influence, where a death occurs, as a Class 2 offense, but only one [(section

11-501(d)(1)(F) of the Vehicle Code)] requires proof that the offense proximately caused the

death of another.” Thus, according to defendant, section 5-16(A)(1) of the Boat Act was

repealed by implication.

¶ 15   “Our primary objective in construing a statute is to ascertain and give effect to the

intention of the legislature, and to this end all other rules of construction are subordinate.

[Citations.] We determine intent by reading the statute as a whole and considering all relevant

parts. [Citation.] When the language is unambiguous, the law is to be enforced as enacted by



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2015 IL App (2d) 131266


the legislature. [Citation.] Where two statutes are allegedly in conflict, a court has a duty to

interpret the statutes in a manner that avoids an inconsistency and gives effect to both statutes,

where such an interpretation is reasonably possible. [Citation.]” Barragan v. Castco Design

Corp., 216 Ill. 2d 435, 441-442 (2005). This court presumes that the legislature would not enact

a law that completely contradicts an existing law without expressly repealing the existing law.

Moore v. Green, 219 Ill. 2d 470, 479 (2006). “ ‘For a later enactment to operate as a repeal by

implication of an existing statute, there must be such a manifest and total repugnance that the

two cannot stand together.’ ” Id. (quoting Jahn & Troy Fire Protection District, 163 Ill. 2d 275,

280 (1994)).

¶ 16   We begin by setting out the relevant language of each provision. First, at the time of the

offense, section 5-16(A)(1)(a) of the Boat Act provided in pertinent part as follows:

       “(A)(1) A person shall not operate or be in actual physical control of any watercraft

       within this State while:

                      (a) The alcohol concentration in such person’s blood or breath is a

               concentration at which driving a motor vehicle is prohibited under subdivision (1)

               of subsection (a) of Section 11-501 of the Illinois Vehicle Code[.]” (Emphasis

               added.) 625 ILCS 45/5-16(A)(1)(a) (West 2008).

Section 5-16(A)(5) of the Boat Act further provided:

               “(5) Every person convicted of violating this Section shall be guilty of a Class 2

       felony if the offense results in the death of a person. A person guilty of a Class 2 felony

       under this paragraph 5, if sentenced to a term of imprisonment, shall be sentenced to a

       term of not less than 3 years and not more than 14 years.” (Emphasis added.) 625 ILCS

       45/5-16(A)(5) (West 2008).



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2015 IL App (2d) 131266


¶ 17   Section 11-501 of the Vehicle Code, which had been amended more recently than the

Boat Act, provided, in pertinent part, as follows:

               “(a) A person shall not drive or be in actual physical control of any vehicle within

       this State while:

                       (1) the alcohol concentration in the person’s blood or breath is 0.08 or

               more based on the definition of blood and breath units in Section 11-501.2;

                                               ***

               (d) Aggravated driving under the influence of alcohol, other drug or drugs, or

       intoxicating compound or compounds, or any combination thereof.

                       (1) Every person convicted of committing a violation of this Section shall

               be guilty of aggravated driving under the influence of alcohol, other drug or

               drugs, or intoxicating compound or compounds, or any combination thereof if:

                                               ***

                              (F) the person, in committing a violation of subsection (a), was

                       involved in a motor vehicle, snowmobile, all-terrain vehicle, or watercraft

                       accident that resulted in the death of another person, when the violation of

                       subsection (a) was a proximate cause of the death;

                                               ***

                              [(2)] (G) A violation of subparagraph (F) of paragraph (1) of this

                       subsection (d) is a Class 2 felony, for which the defendant, unless the

                       court determines that extraordinary circumstances exist and require

                       probation, shall be sentenced to: (i) a term of imprisonment of not less

                       than 3 years and not more than 14 years if the violation resulted in the



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2015 IL App (2d) 131266


                      death of one person; or (ii) a term of imprisonment of not less than 6 years

                      and not more than 28 years if the violation resulted in the deaths of 2 or

                      more persons.” (Emphasis added.) 625 ILCS 5/11-501 (West 2008).

¶ 18   Defendant contends that, because both section 5-16(A)(5) of the Boat Act and section 11-

501(d)(1)(F) the Vehicle Code “speak to the operation of a watercraft” with a resulting death,

there is no reason to suppose that the legislative intent concerning a proximate-cause requirement

differs with respect to the Boat Act.      According to defendant, by “specifically covering”

watercraft accidents resulting in death in section 11-501(d)(1)(F) of the Vehicle Code, and by

including a proximate-cause element, the legislature implicitly superseded and repealed section

5-16(A)(5) of the Boat Act.

¶ 19   The State responds that the statutes do not irreconcilably conflict, because the plain

language of section 11-501(a) of the Vehicle Code makes clear that, contrary to defendant’s

argument, it does not govern the operation of a watercraft. We agree. A person violates section

11-501(a) of the Vehicle Code if he drives or is in actual physical control of “any vehicle” while

under the influence of alcohol. 625 ILCS 5/11-501(a) (West 2008). “Vehicle” is defined in

section 1-127 of the Vehicle Code as:

       “Every device, in, upon or by which any person or property is or may be transported or

       drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this

       Code, except devices moved by human power, devices used exclusively upon stationary

       rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety

       Act.” 625 ILCS 5/1-217 (West 2008).

As the State points out, a person or property could be transported or drawn upon a highway by a

watercraft on a trailer, but not by a watercraft alone. Further, a watercraft does not require a



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2015 IL App (2d) 131266


certificate of title under section 3-101(d) of the Vehicle Code, as that section applies to all-terrain

vehicles or off-highway motorcycles purchased on or after January 1, 1998. See 625 ILCS 5/3-

101(d) (West 2008). Moreover, a watercraft has its own definition. Section 1-2 of the Boat Act

defines “watercraft” as follows:

       “ ‘Watercraft’ means every description of watercraft used or capable of being used as a

       means of transportation on water, except a seaplane on the water, innertube, air mattress

       or similar device, and boats used for concession rides in artificial bodies of water

       designed and used exclusively for such concessions.” 625 ILCS 45/1-2 (West 2008).

Although “watercraft” are not specifically excluded from the definition of “vehicle” as are

snowmobiles, we see no reason why it would need to be, given the fact that watercraft do not fall

under the definition. The plain language of the statute makes clear that watercraft are not

vehicles. To the contrary, a snowmobile, but for the exclusion, would fall under the definition of

vehicle as it is capable of transporting a person upon a highway.

¶ 20   Nevertheless, according to defendant, the critical flaw in the State’s argument is its

failure to explain how a vehicle on a highway could be involved in a “watercraft accident,” as

expressly set out in section 11-501(d)(1)(F) of the Vehicle Code. 625 ILCS 5/11-501(d)(1)(F)

(West 2008). Admittedly, it is not clear how a vehicle could be involved in a “watercraft

accident,” but it is worth noting that section 11-501(d)(1)(F) also references “snowmobile”

accidents, when snowmobiles are specifically excluded. In any event, we must presume that the

legislature would not enact a conflicting law without expressly repealing an existing law. It is

our duty to interpret the statutes to give effect to both. Given that the plain language of section

11-501(a) of the Vehicle Code makes clear that watercraft do not fall under the definition of

vehicle and thus that it does not govern the operation of watercraft, the reference to “watercraft



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2015 IL App (2d) 131266


accident” in section 11-501(d)(1)(F) does not establish a conflict with section 5-16(A)(5) of the

Boat Act such that both cannot stand.

¶ 21                                    III. CONCLUSION

¶ 22   For the reasons set forth above, we find that defendant’s conviction is not void, and we

affirm the dismissal of his postconviction petition. As part of our judgment, we grant the State’s

request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West

2014); see also People v. Nicholls, 71 Ill. 2d 166, 179 (1978).

¶ 23   Affirmed.




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