                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Yaworski, 2011 IL App (2d) 090785




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     GLENN A. YAWORSKI, Defendant-Appellant.



District & No.              Second District
                            Docket No. 2-09-0785


Rule 23 Order filed         September 12, 2011
Rule 23 Order
withdrawn                   September 23, 2011
Opinion filed               September 23, 2011
Modified upon denial
of rehearing                October 14, 2011
Held                        Defendant’s conviction for driving while under the influence of alcohol
(Note: This syllabus        as enhanced to a Class 2 felony based on the fact that the DUI was a
constitutes no part of      fourth or subsequent DUI committed while his license was revoked for
the opinion of the court    a violation of section 11-501(a) of the Illinois Vehicle Code was affirmed
but has been prepared       and his conviction for driving while his license was revoked, which was
by the Reporter of          vacated as a lesser included offense of his Class 2 felony DUI, was
Decisions for the           reinstated on the ground that it was not a lesser included offense, and the
convenience of the          appellate court imposed a sentence of three years for the reinstated
reader.)
                            conviction to be served concurrently with the DUI sentence.


Decision Under              Appeal from the Circuit Court of De Kalb County, No. 05-CF-661; the
Review                      Hon. Robbin J. Stuckert, Judge, presiding.
Judgment                   Affirmed as modified.


Counsel on                 Thomas A. Lilien and Paul J. Glaser, both of State Appellate Defender’s
Appeal                     Office, of Elgin, for appellant.

                           Clay Campbell, State’s Attorney, of Sycamore (Lawrence M. Bauer and
                           Scott Jacobson, both of State’s Attorneys Appellate Prosecutor’s Office,
                           of counsel), for the People.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justices Burke and Birkett concurred in the judgment and opinion.




                                            OPINION

¶1          Following a jury trial in the circuit court of De Kalb County, defendant, Glenn A.
        Yaworski, was found guilty of driving under the influence of alcohol (DUI) in violation of
        section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2) (West
        2004)). Defendant was also found guilty of driving while his license was revoked (DWLR)
        (625 ILCS 5/6-303(a) (West 2004)). The trial court imposed a Class 2 felony sentence of 3½
        years’ imprisonment pursuant to section 11-501(c-1)(3) of the Code (625 ILCS 5/11-501(c-
        1)(3) (West 2004)) for the DUI conviction. As pertinent here, that provision makes a fourth
        or subsequent DUI a nonprobationable Class 2 felony if the offense occurred when the
        offender’s driving privileges were suspended or revoked for a violation of section 11-501(a).
        The trial court concluded that DWLR was a lesser included offense of Class 2 felony DUI;
        accordingly, the trial court vacated the DWLR conviction. Defendant argues on appeal that
        the enhancement of the offense to a Class 2 felony was error because (1) there was no
        reliable evidence that he had the requisite number of DUI convictions and (2) although the
        State offered evidence that defendant’s license was revoked at the time of the offense, there
        was no evidence concerning the basis for the revocation. The State maintains that the
        evidence was sufficient to sustain the enhancement of the offense but argues that the trial
        court erred in vacating the DWLR conviction. We affirm defendant’s Class 2 felony DUI
        conviction. We reinstate defendant’s conviction of DWLR and enter a sentence of three
        years’ imprisonment for that offense, to be served concurrently with the sentence for DUI.
¶2          After the jury returned its verdict, the trial court ordered the preparation of a
        presentencing investigation report (PSI). According to the PSI, defendant had a lengthy
        criminal history that included 6 prior DUI convictions and 35 convictions of other offenses.

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     At defendant’s sentencing hearing, the prosecutor acknowledged that a 2003 conviction for
     a DUI that occurred in Kane County had been reversed on appeal. The other five DUI
     convictions were for offenses that occurred between 1983 and 1989. According to the PSI,
     one DUI occurred in Cook County on April 14, 1989, and another occurred in McHenry
     County on October 30, 1989. The PSI lists dispositions of “revocation” on dates in August
     2005. At the sentencing hearing, defense counsel stated that defendant claimed he had not
     been convicted of 24 of the offenses listed in the PSI, including the 1989 Cook County DUI.
     Defendant did not dispute the remaining four DUI convictions.
¶3       Both at trial and at sentencing, the State offered what it identified as “Exhibit 2.” At both
     points, the prosecutor identified the exhibit as defendant’s driving abstract. We note that the
     record on appeal contains two documents marked “People Exhibit #2.” One is essentially a
     redacted certified copy of defendant’s driving abstract. It consists of a single page stating,
     “Revocation was in effect on 10-30-2005.” It does not list any traffic offenses committed by
     defendant or any actions taken with respect to his driving privileges. The other document
     marked “People’s Exhibit #2” is defendant’s complete certified driving abstract, detailing
     numerous convictions for traffic offenses. The only reasonable conclusion to be drawn from
     the presence of these two documents bearing the same exhibit number is that the redacted
     driving abstract was admitted at trial in order to prove the DWLR charge without improperly
     exposing the jury to inadmissible evidence of defendant’s prior traffic convictions, whereas
     the complete abstract was admitted at the sentencing hearing, at which defendant’s criminal
     history was a relevant factor in determining an appropriate penalty.
¶4       Defendant argues that the criminal history set forth in the PSI is unreliable. He notes that
     he specifically disputed the Cook County DUI for which his license was purportedly revoked
     in 2005. Defendant contends that, because the conviction was for an offense that occurred
     in 1989, “one has further reason to question the accuracy of that listing.” Defendant notes
     that the McHenry County DUI that resulted in a disposition of revocation in 2005 was also
     based on an incident that occurred in 1989. According to defendant, “[t]he unlikelihood of
     DUI tickets languishing for 16 years before dispositions gives reason to doubt the accuracy
     of both listings specifically, and the rest of the listings in general.” Defendant contends that
     the trial court’s reliance on unreliable information violated his constitutional right to a fair
     sentencing hearing.
¶5       As the State notes, defendant did not raise this issue in his motion for reconsideration of
     his sentence. “Normally, any sentencing issues not raised in a motion to reconsider the
     sentence are forfeited.” In re Angelique E., 389 Ill. App. 3d 430, 432 (2009). Defendant seeks
     review under the plain-error rule, which permits a reviewing court to consider a forfeited
     issue where the evidence in a case is so closely balanced that the outcome may have resulted
     from the error and not the evidence (People v. Herron, 215 Ill. 2d 167, 178 (2005)), or where
     the error is so serious that the defendant was denied a substantial right, and thus a fair
     hearing (id. at 179). “The first step of plain-error review is determining whether any error
     occurred.” People v. Thompson, 238 Ill. 2d 598, 613 (2010). Here, no error occurred.
¶6       In challenging the reliability of the PSI, defendant makes no mention of the full driving
     abstract that appears in the record on appeal and that we have concluded was admitted into
     evidence at sentencing. The driving abstract indicates that defendant was convicted of DUI

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     on five prior occasions corresponding to the DUI convictions set forth in the PSI, except for
     the 2003 conviction in the circuit court of Kane County that was reversed on appeal. A
     driving abstract is prima facie evidence of the facts set forth therein and may be admitted in
     a prosecution under the Code as proof of a prior conviction. 625 ILCS 5/2-123(g)(6) (West
     2008).
¶7        Moreover, even if we were to agree with defendant that the recitation in the PSI and the
     driving abstract of the McHenry County and Cook County DUI convictions is somehow
     suspect, there is no reason to doubt the accuracy of those documents with respect to
     defendant’s other three DUI convictions. Hence he has the requisite number of prior
     convictions to enhance this one–his fourth–to a Class 2 felony. Defendant did not dispute
     those convictions and there is nothing suspect about them from the face of the PSI or the
     driving abstract. If defendant did not commit those prior offenses, he was obliged to speak
     up at the sentencing hearing. Under the circumstances, defendant’s belated challenge to the
     overall reliability of the PSI is insufficient to establish that the trial court committed
     reversible error. There can be no plain error unless a reversible error has occurred. People
     v. Cosby, 231 Ill. 2d 262, 273 (2008).
¶8        To enhance the offense to a Class 2 felony, the State was obligated to establish not
     merely that defendant had at least three prior DUI convictions, but also that the present
     offense occurred while his driving privileges were suspended or revoked for a violation of
     section 11-501(a). In this regard, defendant argues as follows:
          “[T]he only evidence the State presented regarding the status of [defendant’s] driver’s
          license at the time of the offense here was a certified driving abstract that states, in its
          entirety: ‘REVOCATION WAS IN EFFECT ON 10-30-2005.’ *** Without any
          evidence whatsoever on the cause of the revocation, the State failed to prove that his
          license was revoked on the date of the offense due to a prior violation of the DUI
          statute.”
     Defendant apparently refers to the redacted abstract discussed above. However, the full
     abstract plainly shows that on August 6, 2005, and again on August 12, 2005, defendant’s
     license was revoked pursuant to section 6-205(a)(2) of the Code, which provides that, upon
     receipt of a report of a driver’s DUI conviction, the Secretary of State shall immediately
     revoke the driver’s license. 625 ILCS 5/6-205(a)(2) (West 2004). The abstract also indicates
     that the revocations remained in effect. Accordingly the argument is without merit.
¶9        We turn now to the State’s argument that the trial court erred in vacating defendant’s
     conviction of DWLR. That offense had been charged as a Class 4 felony–for which a prison
     term of one to three years is an authorized sentence (730 ILCS 5/5-8-1(a)(7) (West
     2004))–on the basis that defendant’s driving privileges had been revoked for DUI and he had
     been convicted of DWLR on three prior occasions. See 625 ILCS 5/6-303(d-3) (West 2004).
     Defendant moved to vacate the DWLR conviction pursuant to People v. Miller, 339 Ill. App.
     3d 990 (2003), which held that DUI, when enhanced to a Class 4 felony because of the
     suspension of the defendant’s license (see 625 ILCS 5/11-501(c-1)(1) (West 2000)), includes
     all of the elements of driving with a suspended license. The Miller court therefore concluded
     that driving with a suspended license was a lesser included offense of, and merged into, Class


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       4 felony DUI. The State offered no argument in response to the motion, although it easily
       could have objected based on our decision in People v. DiPace, 354 Ill. App. 3d 104, 117
       (2004). In DiPace we held that felony DWLR (as charged in that case) was not a lesser
       included offense of felony DUI, because the former required proof of a prior DWLR
       conviction (see 625 ILCS 5/6-303(d) (West 2002)) whereas the latter did not. DiPace, 354
       Ill. App. 3d at 114. We concluded that Miller was distinguishable because different offenses
       were involved. The same reasoning and the same distinction would have applied in this case.
¶ 10        During the pendency of this appeal, our supreme court decided People v. Nunez, 236 Ill.
       2d 488 (2010), which held–contrary to Miller–that factors that merely enhance DUI from a
       misdemeanor to a felony are not elements of DUI for purposes of identifying lesser included
       offenses. In light of Nunez, Miller is no longer good law, and despite the State’s inexplicable
       failure to cite DiPace or otherwise object during the proceedings below to the vacatur of the
       DWLR conviction, the State now contends that the trial court erred and that the conviction
       must be reinstated. In People v. Scott, 69 Ill. 2d 85 (1977), cited by the State, our supreme
       court held that, in an appeal by the defendant, the reviewing court may correct an erroneous
       trial court ruling that one offense merges into another and may remand for sentencing on the
       former offense so that a complete judgment will have been entered. Although in this case the
       State forfeited the issue by failing to raise it below (see, e.g., People v. Estrada, 394 Ill. App.
       3d 611, 626 (2009)), “it is well settled that forfeiture represents a limitation upon the parties
       and not courts of review” (People v. Adams, 404 Ill. App. 3d 405, 417 (2010)). Society has
       an interest in seeing convictions entered for offenders whose guilt has been proved beyond
       a reasonable doubt after a fair trial. We believe that, when that interest has been frustrated
       by the trial court’s misapplication of the sometimes nebulous rules concerning merger of
       convictions, relaxation of the forfeiture doctrine is appropriate. We therefore reinstate
       defendant’s conviction of DWLR. Rather than remanding the case for sentencing for DWLR,
       we choose to impose a sentence of three years’ imprisonment for DWLR, to be served
       concurrently with the sentence for DUI.
¶ 11        For the foregoing reasons, we modify the judgment of the circuit court of De Kalb
       County by reinstating defendant’s conviction of DWLR and sentencing defendant to three
       years’ imprisonment, to be served concurrently with his sentence for DUI. In all other
       respects, the judgment of the circuit court of De Kalb County is affirmed. We award the State
       its fee of $50 pursuant to section 4-2002 of the Counties Code. 55 ILCS 5/4-2002(a) (West
       2008).

¶ 12       Affirmed as modified.




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