                             ILLINOIS OFFICIAL REPORTS
                                           Supreme Court




                           People ex rel. Glasgow v. Kinney, 2012 IL 113197




Caption in Supreme            THE PEOPLE ex rel. JAMES W. GLASGOW, Petitioner, v. GERALD
Court:                        R. KINNEY, Judge, Respondent.



Docket No.                   113197
Filed                         May 24, 2012


Held                          The Vehicle Code prohibition on probation for a fourth DUI conviction
(Note: This syllabus          could not be avoided merely because one of the earlier DUIs used for
constitutes no part of        such enhancement was an uncounseled misdemeanor—mandamus for
the opinion of the court      sentencing in accordance with statute.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)

Decision Under                Original action for mandamus.
Review
Judgment                      Judgment of mandamus awarded.


Counsel on                    Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Appeal                        Solicitor General, and Michael M. Glick and Katherine Doersch
                              Saunders, Assistant Attorneys General, of Chicago, of counsel), for
                              petitioner.

                              Stephanie Speakman, of Mokena, and Jeffery Tomczak, of Joliet, for
                              respondent Michael Drew.
Justices                 CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with
                         opinion.
                         Justices Freeman, Thomas, Garman, Karmeier, Burke, and Theis
                         concurred in the judgment and opinion.



                                            OPINION

¶1         Petitioner, James W. Glasgow, State’s Attorney of Will County, seeks mandamus against
      respondent, the Honorable Gerald R. Kinney, judge of the circuit court of Will County. See
      Ill. Const. 1970, art. VI, § 4(a). The petitioner requests mandamus compelling respondent to:
      (1) vacate his order granting the motion of defendant, Michael W. Drew, to strike his Bureau
      County driving while under the influence (DUI) conviction; (2) vacate his sentencing order;
      (3) deny defendant’s motion to “strike”; and (4) sentence defendant in accordance with
      section 11-501(d)(2)(C) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(2)(C) (West
      2008)), and section 5-4.5-35 of the Unified Code of Corrections (730 ILCS 5/5-4.5-35 (West
      2008)). For the following reasons, we award mandamus.

¶2                                      I. BACKGROUND
¶3         In August 2009, defendant, Michael W. Drew, was charged by indictment with
      aggravated DUI (625 ILCS 5/11-501(d)(2)(C) (West 2008)), a nonprobationable Class 2
      felony. The indictment alleged that on August 7, 2009, defendant committed DUI and that
      he had three prior DUI violations: (1) a 1985 Will County DUI; (2) a 1990 Cook County
      DUI; and (3) a 2000 Bureau County DUI. Defendant pleaded guilty to aggravated DUI as
      charged in the indictment.
¶4         At the plea hearing, defendant was permitted to file a motion in limine seeking to “strike”
      his 2000 Bureau County conviction. Citing People v. Finley, 209 Ill. App. 3d 968 (1991),
      defendant argued that his 2000 Bureau County DUI guilty plea was made without legal
      counsel and, therefore, could not be used to enhance his sentence to a nonprobationable Class
      2 felony. In Finley, the court held that a prior uncounseled misdemeanor conviction could
      not be used to enhance a current offense. Finley, 209 Ill. App. 3d at 973. In response, the
      State argued that Finley was no longer valid because it was based on Baldasar v. Illinois, 446
      U.S. 222 (1980), and Baldasar was overruled in Nichols v. United States, 511 U.S. 738
      (1994).
¶5         Respondent concluded that he was bound to follow Finley, granted defendant’s motion
      in limine, and sentenced him to 48 months of probation. Respondent denied the State’s
      subsequent motion to vacate the sentencing order. The State filed a motion with this court
      for leave to file a complaint seeking mandamus. Ill. S. Ct. R. 381(a) (eff. Dec. 29, 2009). We
      allowed the State’s motion for leave to file the complaint.



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¶6                                          II. ANALYSIS
¶7          Before this court, the State contends that respondent erred, as a matter of law, in barring
       the use of defendant’s Bureau County misdemeanor DUI conviction, and it seeks mandamus
       relief from this court. Article VI, section 4(a), of the Illinois Constitution confers
       discretionary original jurisdiction upon this court to hear mandamus cases. Ill. Const. 1970,
       art. VI, § 4(a). “Mandamus is an extraordinary remedy used to compel a public official to
       perform a purely ministerial duty where no exercise of discretion is involved.” People ex rel.
       Alvarez v. Skryd, 241 Ill. 2d 34, 38 (2011). This court will award mandamus only when “the
       petitioner establishes a clear right to the relief requested, a clear duty of the public official
       to act, and clear authority in the public official to comply.” Alvarez, 241 Ill. 2d at 39.
¶8          Section 11-501(d)(2)(C) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(2)(C) (West
       2008)) prohibits a court from imposing a probationary sentence for an offender who has three
       prior DUI violations. Section 11-501(d)(2)(C) provides, in relevant part:
                “A fourth violation of this Section or a similar provision is a Class 2 felony, for
                which a sentence of probation or conditional discharge may not be imposed.” 625
                ILCS 5/11-501(d)(2)(C) (West 2008).
¶9          In this case, respondent believed that, under Finley, defendant’s uncounseled Bureau
       County misdemeanor DUI conviction could not be used to enhance his current offense to a
       nonprobationable Class 2 felony. In Finley, the appellate court held that the use of a
       defendant’s prior uncounseled DUI conviction to enhance his current DUI offense is
       prohibited by Baldasar. Although Baldasar was overruled in Nichols, the respondent
       concluded he was bound to follow Finley. The respondent believed he was bound to follow
       Finley because Finley was never expressly overruled.
¶ 10        Our decision is instructed by the law surrounding this issue. In Scott v. Illinois, 440 U.S.
       367 (1979), the United States Supreme Court held that a defendant charged with a
       misdemeanor has no constitutional right to counsel when no sentence of imprisonment is
       imposed. A year after the Scott decision, a majority of the Court held in Baldasar that a prior
       uncounseled misdemeanor conviction, while constitutional under Scott, could not be
       collaterally used to convert a subsequent misdemeanor conviction into a felony under the
       applicable Illinois sentencing enhancement statute. Baldasar, 446 U.S. at 224, 227-28.
       Baldasar was a per curiam opinion that provided no single rationale for its result, instead
       referring to three different concurring opinions to support its judgment. Subsequently, in
       Nichols, the Supreme Court continued its adherence to Scott, but overruled Baldasar and,
       instead, adopted the Baldasar dissent, holding that an uncounseled conviction that is valid
       under Scott may be relied upon to enhance the sentence for a subsequent offense. Nichols,
       511 U.S. at 746-48. The Nichols court reasoned:
                “Enhancement statutes, whether in the nature of criminal history provisions *** or
                recidivist statutes that are commonplace in state criminal laws, do not change the
                penalty imposed for the earlier conviction.” Nichols, 511 U.S. at 747.
¶ 11        Defendant contends that Nichols is inapplicable here because it only addressed enhanced
       sentences and did not address whether a prior uncounseled conviction could be used to
       support a sentence of mandatory imprisonment. We disagree.

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¶ 12       Nichols drew no distinction between enhancements that lengthen a term of imprisonment
       and enhancements that result in a mandatory term of imprisonment. To the contrary, Nichols
       held that “an uncounseled conviction valid under Scott may be relied upon to enhance the
       sentence for a subsequent offense, even though that sentence entails imprisonment.”
       (Emphasis added.) Nichols, 511 U.S. at 746-47. Nichols recognized that enhancement
       statutes, or “recidivist statutes that are commonplace in state criminal laws, do not change
       the penalty imposed for the earlier conviction.” Nichols, 511 U.S. at 747. In fact, the
       Supreme Court “consistently has sustained repeat-offender laws as penalizing only the last
       offense committed by the defendant.” (Internal quotation marks omitted.) Nichols, 511 U.S.
       at 747.
¶ 13       Nichols plainly held that “an uncounseled misdemeanor conviction, valid under Scott
       because no prison term was imposed, is also valid when used to enhance punishment at a
       subsequent conviction.” Nichols, 511 U.S. at 749. Section 11-501(d)(2)(C) is precisely the
       type of recidivist statute contemplated by the Nichols decision, providing enhanced sentences
       for repeat offenders. We therefore reject defendant’s argument that Nichols did not address
       whether a prior uncounseled conviction could be used to support a sentence of mandatory
       imprisonment.
¶ 14       In accordance with Nichols, we conclude that a valid uncounseled misdemeanor
       conviction is also valid when used to enhance punishment in a subsequent conviction.
       Finley’s holding was based entirely on Baldasar, and Baldasar was expressly overruled by
       Nichols. Thus, we overrule Finley.

¶ 15                                   III. CONCLUSION
¶ 16       For the foregoing reasons, we award mandamus and order respondent to: (1) vacate his
       order granting the motion of defendant, Michael W. Drew, to “strike” his Bureau County
       DUI conviction; (2) vacate his sentencing order; (3) deny defendant’s motion to strike; and
       (4) sentence defendant in accordance with section 11-501(d)(2)(C) of the Illinois Vehicle
       Code (625 ILCS 5/11-501(d)(2)(C) (West 2008)) and section 5-4.5-35 of the Unified Code
       of Corrections (730 ILCS 5/5-4.5-35 (West 2008)).

¶ 17      Judgment of mandamus awarded.




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