                          NO. 4-09-0302             Filed 12/23/09

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellant,         )    Circuit Court of
          v.                           )    Edgar County
CLINTON T. EASTIN,                     )    No. 08TR866
          Defendant-Appellee.          )
                                       )    Honorable
                                       )    Steven L. Garst,
                                       )    Judge Presiding.
_________________________________________________________________

           JUSTICE McCULLOUGH delivered the opinion of the court:

           In March 2009, defendant, Clinton T. Eastin, entered a

guilty plea to one count each of driving with a suspended license

and driving under the influence (DUI).    In April 2009, the trial

court vacated defendant’s conviction for driving with a suspended

license on the grounds it was an included offense of aggravated

DUI.   The State appeals, arguing (1) driving with a suspended

license is not an included offense of aggravated DUI and (2)

defendant has forfeited his right to challenge his driving-while-

suspended conviction because he received the benefit of a

negotiated guilty plea.   We reverse and remand with directions.

           In May 2008, defendant was arrested for DUI (625 ILCS

5/11-501(a)(2) (West Supp. 2007)) and driving with a suspended

license (625 ILCS 5/6-303(a) (West Supp. 2007)).   In July 2008,

the State charged defendant by information with DUI while driving

with a suspended license, a Class 4 felony (625 ILCS 5/11-

501(a)(2), (c-1)(1) (West Supp. 2007) (count I).   For simplicity,

we refer to count I as aggravated DUI.
          On May 18, 2009, defendant filed a motion for an

advisory opinion from the trial court, arguing driving with a

suspended license was an included offense of aggravated DUI.     The

court recharacterized defendant’s motion as a motion to dismiss.

On May 27, 2009, after hearing and argument, the court denied

defendant’s motion.

          On May 30, 2009, defendant pleaded guilty to aggravated

DUI and driving with a suspended license.   The trial court

sentenced defendant to two years’ conditional discharge and 30

days in the Edgar County jail, subject to work release.    The

court also ordered defendant to complete 75 hours of counseling

and to pay costs, a $500 fine, and the $1,000 DUI-equipment-fund

assessment.   The court’s docket entry states the sentence was

"pursuant to agreement."   The court then continued sentencing on

the driving-while-suspended conviction.

          In April 2009, the trial court granted defendant’s

motion to vacate his guilty plea on the charge of driving with a

suspended license and dismiss the complaint.   The court

apparently held that driving with a suspended license is an

included offense of aggravated DUI.

          This appeal followed.

          Defendant has not filed an appellee’s brief with this

court.   Nonetheless, we elect to decide the appeal on the merits

pursuant to the principles set forth in First Capitol Mortgage

Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345

N.E.2d 493, 495 (1976) (reviewing court may exercise discretion


                               - 2 -
to decide appeal on the merits where appellee has not filed a

brief).

          Turning to the merits, we agree with the State that

driving with a suspended license is not an included offense of

aggravated DUI.    The supreme court has explained as follows:

                  "Under the plain language of [section

          11-501 of the Illinois Vehicle Code (625 ILCS

          5/11-501 (West Supp. 2007))], there is only

          one offense of driving under the influence.

          [Citation.]    Subsection (a) sets forth the

          elements for the offense and classifies the

          offense as a Class A misdemeanor.    The

          enhancing factors in subsection (c) do not

          create a new offense, but rather serve only

          to enhance the punishment."     People v. Van

          Schoyck, 232 Ill. 2d 330, 337, 904 N.E.2d 29,

          32-33 (2009).

          In Van Schoyck, the supreme court also stated that

section 111-3(c) of the Code of Criminal Procedure of 1963 (725

ILCS 5/111-3(c) (West 2008)) applies to prosecutions in which the

State seeks to enhance the applicable sentencing range with proof

of a prior conviction of a different criminal statute.    Van

Schoyck, 232 Ill. 2d at 337-39, 904 N.E.2d at 33-34 (discussing

the effect of driving-with-a-revoked-license conviction on DUI

sentencing).   The court further stated that "[u]nder section 111-

3(c), a prior conviction such as the revoked license in this case


                                 - 3 -
is not an element of the underlying offense."   Van Schoyck, 232

Ill. 2d at 339, 904 N.E.2d at 34.

           The holding in Van Schoyck controls the outcome of this

case.   Defendant’s conviction for driving with a suspended

license is not an element of the offense of aggravated DUI.

Instead, the driving-while-suspended conviction constitutes an

aggravating factor that the State must prove at sentencing to

enhance defendant’s sentence from a Class A misdemeanor to a

Class 4 felony.   Therefore, driving with a suspended license

cannot, as a matter of law, constitute an included offense of

aggravated DUI.

           Defendant cites People v. Miller, 339 Ill. App. 3d 990,

992, 791 N.E.2d 1145, 1147 (2003) (Third District), for the

proposition that driving with a suspended license is an included

offense of aggravated DUI.   We note the State conceded the error

in Miller, 339 Ill. App. 3d at 992, 791 N.E.2d at 1147.   However,

to the extent Miller conflicts with Van Schoyck, we find the

supreme court implicitly overruled Miller’s holding.

           Because we have determined the trial court erred when

it vacated defendant’s conviction for driving with a suspended

license, we do not reach the State’s argument that defendant is

estopped from repudiating the terms of his negotiated guilty plea

with the State.

           For the reasons stated, we reverse the trial court’s

judgment and remand with directions to reinstate defendant’s

conviction for driving with a suspended license and proceed to


                               - 4 -
sentencing.

          Reversed and remanded.

          KNECHT and TURNER, JJ., concur.




                              - 5 -
