People v. Anderson

2021 IL App (2d) 190128

195 N.E.3d 1245

457 Ill.Dec. 829

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Michael F. ANDERSON, Defendant-Appellant.

No. 2-19-0128

Appellate Court of Illinois, Second District.

Opinion Filed June 3, 2021

James E. Chadd, Douglas R. Hoff, and Beverly M. Jones, of State Appellate Defender's Office, of Chicago, for appellant.

Tricia L. Smith, State's Attorney, of Belvidere (Patrick Delfino, Edward R. Psenicka, and Katrina M. Kuhn, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Michael F. Anderson, was charged with two counts of aggravated driving while under the influence of alcohol (DUI) ( 625 ILCS 5/11-501(a)(1), (a)(2), (d)(1)(A), (d)(2)(B) (West 2014)). The offenses were elevated to Class 2 felonies because defendant had two prior DUI convictions. Id. § 11-501(d)(2)(B). He pleaded guilty to one count and faced mandatory sentencing as a Class X offender because he had two prior Class 2 felony convictions ( 730 ILCS 5/5-4.5-95(b) (West 2014)). He was sentenced to six years’ imprisonment. On appeal, defendant claims that one of his prior DUI convictions, obtained in case No. 96-DT-17, cannot be used to aggravate his current DUI offense, because he neither was represented by counsel nor had waived his right to counsel when he was convicted of DUI in case No. 96-DT-17. We determine that defendant failed to meet his burden of rebutting the presumption that the DUI conviction in case No. 96-DT-17 was validly obtained. Thus, we affirm the trial court's judgment.

¶ 2 I. BACKGROUND

¶ 3 The two counts charging defendant with aggravated DUI alleged, in relevant part, that defendant was driving "while under the influence of alcohol" (count I) (see 625 ILCS 5/11-501(a)(2) (West 2014)) and "when the alcohol concentration in his blood or breath was 0.08 or more" (count II) (see id. § 11-501(a)(1) ). Each count indicated that the offense was charged as aggravated DUI and elevated to a Class 2 felony because, at the time defendant committed the offense, "[he] had two prior violations of 625 ILCS 5/11-501(a) or a similar provision."

¶ 4 Defendant subsequently pleaded guilty to count II. Before accepting the guilty plea, the trial court advised defendant about the nature of the charge. Specifically, the court stated:

"[T]he count that you're pleading to is Count 2 of the bill of indictment of 14-CF-189 that alleges on or about May 3rd of 2014 here in Boone County you committed the offense of aggravated driving with an alcohol concentration of 0.08 or more. ***

***

*** And that you drove a motor vehicle on Belvidere Road with an alcohol concentration in your blood or breath that was .08 or more based on the definition of blood and breath units in Section 11-501.2, and at the time you had two prior violations of 625 ILCS 5/11-501(a) —that's the DUI statute—or a similar provision in violation of 625 ILCS 5/11-501(a)(1) and (d)(1)(A) and (d)(2)(B) of the Illinois statutes as alleged. That is a Class 2 felony."

The court asked defendant if he "understood the charge," and defendant replied, "Yes, sir." When the trial court asked about the "two priors," the State indicated that, at sentencing, it "will prove up the two priors."

¶ 5 When defendant pleaded guilty, he believed that he was subject to sentencing for a Class 2 felony because he had committed DUI twice previously (see id. § 11-501(d)(2)(B) ). At sentencing, however, it became clear that—because defendant had been previously convicted of robbery, a Class 2 felony (see generally 720 ILCS 5/18-1(a), (c) (West 2018)), and possession of a stolen motor vehicle, also a Class 2 felony (see generally 625 ILCS 5/4-103(a)(1), (b) (West 2018))—he faced mandatory sentencing as a Class X offender ( 730 ILCS 5/5-4.5-95(b) (West 2014) (Class X sentencing applies when a defendant is facing sentencing for a Class 2 felony after having "twice been convicted *** of an offense *** classified *** as a Class 2 or greater Class felony"). Defendant moved to withdraw his guilty plea on this basis, and the trial court granted that motion.

¶ 6 Thereafter, defendant again pleaded guilty to count II of the indictment. Before the trial court accepted defendant's plea, the court advised him about the nature of the charge. Specifically, the court stated:

"At this point the specific count is Count 2 of the bill of indictment that alleges on or about May 3rd of 2014 here in Boone County, you committed the offense of aggravated driving with an alcohol concentration of .08 or more in that you drove a motor vehicle on Belvidere Road, which is a highway here in Boone County, when the alcohol concentration in your blood or breath was .08 or more based upon the definition of blood and breath units in Section 11-501.2, and at the time that you had two prior violations of the DUI statute, 11-501(a), or a similar provision, and that's what makes it the Class 2 in violation of 5/11-501(a)(1) and (d)(1)[(]A) and (d)(2)(B)."

The court also advised defendant of the penalty range for a Class X offense. The court asked defendant if he "[understood] the charge that's involved," and defendant replied, "Yes, sir." After giving a factual basis for the plea, the State advised the court that, if the case "were to proceed to trial," it would "prove at sentencing that defendant has twice been previously convicted for [DUI]." Later, the State filed a "Statement by the State's Attorney," which noted that defendant had two prior DUI convictions, one entered "on 8/1/97, in Boone County, Illinois, Case Number 96DT17," and another entered "on 6/25/98 in Winnebago County, Illinois, Case Number 98DT22078."

¶ 7 At the sentencing hearing, the State introduced certified copies of defendant's prior Class 2 felony convictions. The trial court noted that, if defendant were not eligible for mandatory Class X sentencing, the court would have sentenced defendant, based on the mitigating evidence, to three years’ imprisonment, which was the minimum sentence for a Class 2 felony (id. § 5-4.5-35(a)). The court instead sentenced defendant to six years’ imprisonment, which was the minimum sentence for a Class X offense. Id. § 5-4.5-25(a).

¶ 8 Defendant moved the trial court to reconsider his sentence. Defendant claimed for the first time that the DUI conviction obtained in case No. 96-DT-17 could not be used to elevate his current DUI to a Class 2 felony, because that prior conviction was obtained after defendant waived a jury trial and proceeded to a bench trial without being represented by counsel or having waived his right to counsel. Attached to defendant's motion was, among other things, his affidavit and the docket sheets and presentence investigation report (PSI) from case No. 96-DT-17.

¶ 9 In his affidavit, defendant asserted:

"5. On October 15, 1996, I appeared in Court with the Alternate Public Defender, and I told the Court I wished to hire my own counsel.

6. On January 31, 1997, the Alternate Public Defender was granted leave to withdraw.

7. Without the benefit of counsel and without a Court Reporter present, I signed a jury waiver. I do not remember what the Court told me at the time I signed the paper. I probably was under the influence of alcohol.

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9. On May 23, 1997, I appeared without counsel for [a] bench trial. I was found guilty. The Court ordered a PSI. The order indicates I did not have counsel.

10. On June 27, 1997, [counsel] entered his appearance to represent me for my sentencing hearing.

11. On August 1, 1997, I appeared for sentencing with my attorney, and was sentenced to two years of probation and 90 days in jail, *** with an additional 90 days in jail stayed.

12. On June 11, 1998, I appeared with [counsel] and was sentenced to an additional two years of probation plus 90 days stayed jail.

13. That the State was seeking jail [time,] and[ ] I did not understand I had the right to continue the trial so I could hire an attorney[ ] or obtain the services of another alternate public defender."

¶ 10 The docket sheets attached to defendant's motion revealed that a complaint in case No. 96-DT-17 was filed on January 23, 1996. On February 2, 1996, defendant was advised that the State was seeking jail time. On March 14, 1996, defendant moved for a continuance so that he could hire counsel. The trial court granted the motion, and, at the next court date, defendant again asked for a continuance so that he could hire an attorney. Although the court granted the motion, it also appointed an assistant public defender to represent defendant. On the next several court dates, an assistant public defender represented defendant. That attorney withdrew his representation on October 7, 1996. On the next court date, defendant failed to appear on time, and the court appointed an alternate public defender. When defendant appeared later that day, he was told that an alternate public defender had been appointed to represent him. The alternate public defender appeared with defendant on the next court date, and defendant again advised the court that he wanted to hire private counsel. Defendant subsequently filed two pro se motions. On January 31, 1997, defendant was present with the alternate public defender and asked to proceed on the pro se motions he had filed. The State objected, as defendant was represented by counsel. The alternate public defender was given leave to withdraw, and defendant entered a plea of not guilty, executed a jury waiver, and advised the court that he might file a motion for discovery. A bench trial was set for a future date, and defendant was warned that, if he did not appear, a trial would take place in his absence. On the trial date, defendant appeared late, and the court noted "that it appears the [defendant] has been drinking." Defendant was placed in custody, a new trial date was set, and defendant was again warned about a trial taking place in his absence. On May 23, 1997, defendant was...