People v. Gully

2020 IL App (1st) 180275

177 N.E.3d 710

448 Ill.Dec. 654

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

v.Bernard GULLY, Defendant-Appellant.

Nos. 1-18-0275 & 1-18-0306 (cons.)

Appellate Court of Illinois, First District, Sixth Division.

Filed June 26, 2020

Rehearing denied August 21, 2021

James E. Chadd, Patricia Mysza, and Karl H. Mundt, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Matthew Connors, Assistant State's Attorneys, of counsel, and Summer Moghamis, law school graduate), for the People.

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

¶ 1 Following a 2017 jury trial, defendant Bernard Gully was convicted of the Class 1 felony offense of driving on a revoked license and sentenced as a mandatory Class X offender to 12 years' imprisonment. On appeal, defendant contends that his sentence violates Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the elements or facts that elevated his offense from a Class A misdemeanor to a Class 1 felony were not presented to or found by the jury but were facts other than the fact of a prior conviction. For the reasons stated below, we affirm.

¶ 2 I. JURISDICTION

¶ 3 On November 13, 2017, a jury found defendant guilty of driving on a revoked license. On December 15, 2017, the court sentenced him to 12 years' imprisonment. Defendant filed a motion to reconsider his sentence on January 10, 2018, which the court denied on January 24, 2018. Defendant filed notices of appeal on January 4 and 24, 2018, commencing cases No. 1-18-0275 and No. 1-18-0306 respectively, which have been consolidated. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017), governing appeals from a final judgment of conviction in a criminal case.

¶ 4 II. BACKGROUND

¶ 5 Defendant was charged in relevant part with driving on a suspended or revoked license for allegedly, on or about August 9, 2016, driving a motor vehicle on a highway while his driver's license was revoked. The charge asserted that the State would seek a Class 1 felony sentence upon allegations that defendant committed the instant offense and had two prior convictions for driving on a suspended or revoked license, while his license was revoked for reckless homicide.

¶ 6 Defendant represented himself from before trial through the sentencing hearing. The court told defendant before trial that he would receive a Class X sentence if convicted because the instant Class 1 felony offense and his prior convictions made him a mandatory Class X offender. The court also told defendant that the only issue for the jury would be whether he drove a motor vehicle on a highway while his license was revoked.

¶ 7 At trial, police officer George Marks testified that, just before 11 p.m. on August 9, 2016, he and another officer were on duty when they stopped a black 1999 GMC Jimmy after Marks saw it make a right turn from one public street to another without using a turn signal. The two officers walked up to the vehicle, and Marks saw that the sole occupant was defendant in the driver's seat. When defendant was asked for his license and proof of insurance, he replied that he had neither. Marks then noticed an open container of beer inside the vehicle. The officers had defendant exit the vehicle for sobriety testing, but the test that was conducted did not show impairment. A check of defendant's name in computerized police records indicated that his driver's license had been revoked, so defendant was arrested.

¶ 8 Craig Turton, an employee of the Illinois Secretary of State (Secretary), testified that he produced from the Secretary's records a statement certifying that, on August 9, 2016, defendant's driver's license had been revoked. The statement was entered into evidence at trial and was included in the record on appeal. In the statement, the Secretary certifies that, pursuant to the Secretary's records, defendant's driver's license was revoked as of November 2, 1986, and was in revoked status as of August 9, 2016.

¶ 9 The State rested, and the court denied a directed verdict.

¶ 10 Officer Marks testified for the defense that, on the night in question and in the area where defendant was stopped, Marks and his partner were engaged in traffic enforcement with about 10 other teams of officers as part of an initiative to increase police presence in areas with increased crime. Another team stopped a vehicle but did not cite the driver near defendant's stop about 15 minutes later, but that was not defendant's stop. Marks and his partner began following defendant when they saw him turn without signaling and stopped him when he again turned without signaling. In between, he stopped properly at a stop sign.

¶ 11 Defendant testified that he was driving on the night in question when he encountered a checkpoint or blockade, and he turned to avoid it. When he turned, there was no vehicle behind him. On cross-examination, defendant reiterated that he was driving that night and admitted that his driver's license was revoked at the time.

¶ 12 In rebuttal, as impeachment evidence, the State entered defendant's prior convictions in January 2016 for aggravated battery in case No. 13 CF 2517 and in June 2010 for attempted burglary in case No. 09 CR 14345.

¶ 13 The jury was instructed in relevant part that a person commits driving on a revoked license by being in actual physical control of a motor vehicle on a highway while his driver's license is revoked. Following deliberations, the jury found defendant guilty of driving on a revoked license.

¶ 14 Defendant filed no posttrial motion.

¶ 15 The presentencing investigative report (PSI) indicated in relevant part that defendant had convictions for attempted burglary, with two years' imprisonment, in case No. 09 CR 14345; burglary, with four years' imprisonment, in case No. 92 CR 27094; a controlled substance offense, with six years' imprisonment, in case No. 87 CR 11904; and reckless homicide, with 27 months' imprisonment, after violating an original sentence of probation in case No. 86 CR 14921.

¶ 16 At sentencing, the State noted defendant's 1986 conviction for reckless homicide, asserted that his convictions for burglary and aggravated battery were Class 2 felonies, noted that the State had certified copies of those convictions, and argued that defendant was a mandatory Class X offender. The State also noted that defendant had multiple prior convictions for driving on a suspended or revoked license and that three convictions, including the instant case, followed the revocation of his license for reckless homicide. The State entered into evidence the abstract of defendant's driving record. Following arguments in aggravation and mitigation, the court found defendant to be a mandatory Class X offender for the instant Class 1 felony and sentenced him to 12 years' imprisonment.

¶ 17 The record on appeal includes certified copies of defendant's convictions for reckless homicide in case No. 86 CR 14921, the Class 2 felony offense of burglary in case No. 92 CR 27094, attempted burglary in case No. 09 CR 14345, and the Class 2 felony offense of aggravated battery in Will County case No. 13 CF 2517.

¶ 18 The record also includes defendant's driving abstract from the Secretary. From 1982 to 1999, defendant had various revocations and suspensions of his license, including his first revocation in November 1986, and various convictions for driving on a suspended or revoked license. The abstract reflects that defendant was arrested for reckless homicide in October 1986 with a conviction in June 1989 and that revocation of his license for reckless homicide resulting from operation of a motor vehicle was entered effective October 2001. Defendant had convictions for driving on a suspended or revoked license in 2002 and 2015, and he was issued a restricted driving permit in October 2013 that was cancelled in February 2014.

¶ 19 Counsel, appointed for defendant after sentencing, filed a motion to reconsider the sentence that did not raise an Apprendi claim. The court denied the motion, and this appeal followed.

¶ 20 III. ANALYSIS

¶ 21 On appeal, defendant contends that his Class X prison sentence of 12 years violates Apprendi because the elements or facts that elevated his offense from a Class A misdemeanor to a Class 1 felony were not presented to, or found by, the jury but were facts other than the fact of a prior conviction, as provided in Apprendi .

¶ 22 As a threshold matter, we note that defendant raised no Apprendi claim in the trial court. It is axiomatic that the plain error doctrine allows a reviewing court to consider unpreserved error when a clear or obvious error occurred and either (1) the evidence was so closely balanced that the error alone threatened to tip the scales of justice against the defendant or (2) the error was so serious that it affected the fairness of the defendant's trial and the integrity of the judicial process. People v. Jones , 2016 IL 119391, ¶ 10, 409 Ill.Dec. 44, 67 N.E.3d 256. For plain error, an Apprendi claim requires a showing of prejudice. Id. There is no prejudice, and thus no plain error, from an alleged Apprendi violation if undisputed evidence shows that the State could have proven the sentence-enhancing facts beyond a reasonable doubt. People v. Fernandez , 2014 IL App (1st) 120508, ¶ 31, 384 Ill.Dec. 55, 16 N.E.3d 151. The first step of plain error analysis is determining whether an error occurred at all. Jones , 2016 IL 119391, ¶ 10, 409 Ill.Dec. 44, 67 N.E.3d 256.

¶ 23 Driving on a suspended or revoked license is generally a Class A misdemeanor. 625 ILCS 5/6-303(a) (West 2016). However, a third conviction for said offense is a Class 1 felony if the instant offense and the prior convictions ...