                              2015 IL App (2d) 141081
                                 No. 2-14-1081
                           Opinion filed August 5, 2015
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Boone County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 08-CF-571
                                       )
WAYNE A. BOROWSKI,                     ) Honorable
                                       ) C. Robert Tobin III,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

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

                                           OPINION

¶1     On December 8, 2008, a Boone County grand jury indicted defendant, Wayne A.

Borowski, on a single count of driving while his license was suspended (DWLS), in violation of

section 6-303 of the Illinois Vehicle Code (Code) (625 ILCS 5/6-303 (West 2008)). The offense,

which allegedly occurred on October 16, 2008, was charged as a Class 4 felony pursuant to

section 6-303(d) of the Code, which provides, in pertinent part, that “[a]ny person convicted of a

second violation of [section 6-303] shall be guilty of a Class 4 felony *** if the *** suspension

was for a violation of *** [section] 11-501 of this Code *** or a statutory summary suspension

under Section 11-501.1 of this Code.” 625 ILCS 5/6-303(d) (West 2008). Defendant entered a

nonnegotiated guilty plea to DWLS, but the classification of the offense as a misdemeanor or a
2015 IL App (2d) 141081


felony was reserved for sentencing. Following defendant’s sentencing hearing, the trial court

entered a conviction of Class 4 felony DWLS, sentenced defendant to 18 months’ conditional

discharge, and ordered him to perform 300 hours of community service.                    Defendant

unsuccessfully moved for reconsideration of his sentence, maintaining that he had no prior

conviction of a violation of section 6-303 and that he was thus guilty of a misdemeanor rather

than a felony. The trial court denied the motion, and this appeal followed. We affirm.

¶2     In 1987, defendant was arrested for driving under the influence. That arrest led to the

statutory summary suspension of defendant’s driving privileges. In March 1994, defendant was

charged with DWLS in McHenry County.            The charge was prosecuted by the Village of

Richmond. Defendant failed to appear on that charge, and a bond-forfeiture judgment was

entered. When defendant entered his guilty plea in the present case, he was represented by an

assistant Boone County public defender.       Prior to sentencing, a privately retained attorney

appeared as substitute counsel for defendant and filed a motion to withdraw defendant’s guilty

plea. The motion appears to have been premised on the mistaken belief that defendant had

pleaded guilty to felony DWLS. As noted, the classification of the offense was reserved for

sentencing.   The motion alleged that an “updated” abstract of defendant’s driver’s license

showed no prior conviction of DWLS. A certified abstract of defendant’s driver’s license dated

April 24, 2014, was attached to the motion as an exhibit. The trial court heard and denied the

motion on July 18, 2014.

¶3     At sentencing, the State proffered a certified abstract of defendant’s driver’s license dated

November 13, 2008, showing that a bond-forfeiture judgment was entered in the McHenry

County DWLS prosecution on September 20, 1994. Defendant proffered a certified copy of an




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2015 IL App (2d) 141081


order entered in the McHenry County prosecution on November 7, 2013, stating, in pertinent

part, as follows:

               “The above-captioned matter coming on to be heard for oral argument on

       defendant’s petition to vacate judgment―bond forfeiture and motion to schedule trial, all

       parties present, the court being fully advised in the premises and having jurisdiction,

       hereby finds [and] orders:

                      1) Petition to vacate bond forfeiture is denied. Bond remains forfeited for

               failure to appear.

                      2) The underlying DWLS misdemeanor charge being open without

               disposition, the [Village of Richmond] moves to nolle pros.

                      3) DWLS *** is nolle prossed and case closed.”

Both documents were admitted into evidence. The trial court concluded that the bond forfeiture

in the McHenry County DWLS prosecution constituted a prior conviction and that the present

offense was therefore a felony.

¶4     Pursuant to section 6-303(d) of the Code, whether the offense in this case is a

misdemeanor or a felony depends on whether it is defendant’s first or second conviction of a

violation of section 6-303. See 625 ILCS 5/6-303(d) (West 2008). In People v. Smith, 345 Ill.

App. 3d 179 (2004), this court observed that several provisions of the Code define “conviction”

to include a bond-forfeiture judgment. Id. at 185-86 (citing 625 ILCS 5/6-100(b), 6-204(c), 6-

500, 6-700(c) (West 2000)). We held that “under the *** Code, a conviction that stems from a

bond forfeiture is equivalent to any other conviction” and that “[a] conviction is necessarily a

violation.” Id. at 186. We further considered the argument that the use of a bond-forfeiture




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2015 IL App (2d) 141081


judgment as a sentencing enhancement factor ran afoul of the holding in Apprendi v. New Jersey,

530 U.S. 466 (2000). Rejecting the argument, we reasoned as follows:

       “In Apprendi, the United States Supreme Court held that any fact, other than a prior

       conviction, that increases the penalty for an offense beyond the statutory maximum must

       be submitted to the jury and proved beyond a reasonable doubt. [Citation.] The Supreme

       Court reasoned that prior convictions do not implicate Apprendi because they involve

       proceedings equipped with procedural safeguards. [Citation.] ***

              Again, for purposes of the *** Code, a conviction that results from a bond

       forfeiture is functionally equivalent to any other conviction. Although [defendant] argues

       otherwise, bond forfeiture proceedings are not devoid of procedural safeguards. We note

       that when a defendant fails to appear on charges under the Vehicle Code and

       consequently sustains a conviction by way of a bond forfeiture, the defendant may move

       to vacate that conviction. However, when a defendant fails to avail himself of this

       safeguard, the legislature has permitted courts to infer that the defendant has committed

       the offense. [Citation.] This inference passes constitutional muster. Highway driving is

       a privilege and not a right. [Citation.] When a person obtains a driver’s license, he

       consents to the conditions imposed by the legislature in exchange for that privilege.

       [Citation.] One such condition is that a conviction that arises from a bond forfeiture is

       like any other conviction upon which a court may rely in imposing an enhanced

       sentence.” Smith, 345 Ill. App. 3d at 187.

¶5     Defendant maintains, however, that he availed himself of the procedural safeguards

discussed in Smith when he “appeared in the Circuit Court of McHenry County to resolve the

underlying misdemeanor DWLS charge against him.” Defendant contends that, based upon the



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2015 IL App (2d) 141081


dismissal of that charge, “the Illinois Secretary of State expunged and removed the judgment

bond forfeiture conviction from Borowski’s driving abstract.” The argument is without merit.

The circuit court of McHenry County denied defendant’s petition to vacate the bond forfeiture.

It is not apparent why, notwithstanding the denial of that petition, the notation of the bond

forfeiture was absent from the abstract of defendant’s driver’s license dated April 24, 2014. A

certified copy of the abstract of a motorist’s driver’s license is prima facie evidence of the facts

stated therein. 625 ILCS 5/2-123(g)(6) (West 2012); People v. Minor, 197 Ill. App. 3d 500, 502

(1990). Prima facie evidence is “[e]vidence that will establish a fact or sustain a judgment

unless contradictory evidence is produced.” (Emphasis added.) Black’s Law Dictionary 598

(8th ed. 2004). To the extent that the abstract dated April 24, 2014, was prima facie evidence

that there was no subsisting bond-forfeiture judgment against defendant, it was clearly

contradicted by the certified copy of the actual order denying the petition to vacate the bond

forfeiture and confirming that “[b]ond remains forfeited for failure to appear.”

¶6     In an apparent effort to avoid the effect of the certified copy of the order of the circuit

court of McHenry County, defendant argues that “based upon the Separation of Powers doctrine,

the Boone County judge must respect the administrative decision-making of the co-equal

Executive branch of government, being the Illinois Secretary of State, to vacate Borowski’s

judgment of bond forfeiture conviction.” Suffice it to say that, because defendant has cited no

authority in support of this argument, he has forfeited our review of this issue. Department of

Human Services v. Porter, 396 Ill. App. 3d 701, 719 (2009).

¶7     Defendant has likewise forfeited his alternative argument that, if, for purposes of section

6-303(d) of the Code, the bond-forfeiture judgment was a conviction as a matter of law, he

should have been admonished that a guilty plea would result in a felony conviction. Defendant



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2015 IL App (2d) 141081


cites no authority in support of this argument. Moreover, the argument is essentially a challenge

to his guilty plea. As such, appellate review is subject to compliance with Illinois Supreme

Court Rule 604(d) (eff. Feb. 6, 2013), which provides, in pertinent part, that “[n]o appeal from a

judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the

date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if

only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw

the plea of guilty and vacate the judgment.”        (Emphasis added.) A motion filed prior to

sentencing does not satisfy Rule 604(d) for purposes of appeal. People v. Ramage, 229 Ill. App.

3d 1027, 1031 (1992).        Defendant moved to withdraw his plea before sentencing.         After

sentencing, he moved for reconsideration of his sentence and did not renew his motion to

withdraw his plea. Accordingly, the challenge to the plea is not properly before us.

¶8        For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed.

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).

¶9        Affirmed.




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