People v. Borowski , 2015 IL App (2d) 141081 ( 2015 )

2015 IL App (2d) 141081
No. 2-14-1081
Opinion filed August 5, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 08-CF-571
)
WAYNE A. BOROWSKI, ) Honorable
) C. Robert Tobin III,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Justices Birkett and Spence concurred in the judgment and opinion.
OPINION
¶1 On December 8, 2008, a Boone County grand jury indicted defendant, Wayne A.
Borowski, on a single count of driving while his license was suspended (DWLS), in violation of
section 6-303 of the Illinois Vehicle Code (Code) (625 ILCS 5/6-303 (West 2008)). The offense,
which allegedly occurred on October 16, 2008, was charged as a Class 4 felony pursuant to
section 6-303(d) of the Code, which provides, in pertinent part, that “[a]ny person convicted of a
second violation of [section 6-303] shall be guilty of a Class 4 felony *** if the *** suspension
was for a violation of *** [section] 11-501 of this Code *** or a statutory summary suspension
under Section 11-501.1 of this Code.” 625 ILCS 5/6-303(d) (West 2008). Defendant entered a
nonnegotiated guilty plea to DWLS, but the classification of the offense as a misdemeanor or a
2015 IL App (2d) 141081
felony was reserved for sentencing. Following defendant’s sentencing hearing, the trial court
entered a conviction of Class 4 felony DWLS, sentenced defendant to 18 months’ conditional
discharge, and ordered him to perform 300 hours of community service. Defendant
unsuccessfully moved for reconsideration of his sentence, maintaining that he had no prior
conviction of a violation of section 6-303 and that he was thus guilty of a misdemeanor rather
than a felony. The trial court denied the motion, and this appeal followed. We affirm.
¶2 In 1987, defendant was arrested for driving under the influence. That arrest led to the
statutory summary suspension of defendant’s driving privileges. In March 1994, defendant was
charged with DWLS in McHenry County. The charge was prosecuted by the Village of
Richmond. Defendant failed to appear on that charge, and a bond-forfeiture judgment was
entered. When defendant entered his guilty plea in the present case, he was represented by an
assistant Boone County public defender. Prior to sentencing, a privately retained attorney
appeared as substitute counsel for defendant and filed a motion to withdraw defendant’s guilty
plea. The motion appears to have been premised on the mistaken belief that defendant had
pleaded guilty to felony DWLS. As noted, the classification of the offense was reserved for
sentencing. The motion alleged that an “updated” abstract of defendant’s driver’s license
showed no prior conviction of DWLS. A certified abstract of defendant’s driver’s license dated
April 24, 2014, was attached to the motion as an exhibit. The trial court heard and denied the
motion on July 18, 2014.
¶3 At sentencing, the State proffered a certified abstract of defendant’s driver’s license dated
November 13, 2008, showing that a bond-forfeiture judgment was entered in the McHenry
County DWLS prosecution on September 20, 1994. Defendant proffered a certified copy of an
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order entered in the McHenry County prosecution on November 7, 2013, stating, in pertinent
part, as follows:
“The above-captioned matter coming on to be heard for oral argument on
defendant’s petition to vacate judgment―bond forfeiture and motion to schedule trial, all
parties present, the court being fully advised in the premises and having jurisdiction,
hereby finds [and] orders:
1) Petition to vacate bond forfeiture is denied. Bond remains forfeited for
failure to appear.
2) The underlying DWLS misdemeanor charge being open without
disposition, the [Village of Richmond] moves to nolle pros.
3) DWLS *** is nolle prossed and case closed.”
Both documents were admitted into evidence. The trial court concluded that the bond forfeiture
in the McHenry County DWLS prosecution constituted a prior conviction and that the present
offense was therefore a felony.
¶4 Pursuant to section 6-303(d) of the Code, whether the offense in this case is a
misdemeanor or a felony depends on whether it is defendant’s first or second conviction of a
violation of section 6-303. See 625 ILCS 5/6-303(d) (West 2008). In People v. Smith, 345 Ill.
App. 3d 179 (2004), this court observed that several provisions of the Code define “conviction”
to include a bond-forfeiture judgment. Id. at 185-86 (citing 625 ILCS 5/6-100(b), 6-204(c), 6-
500, 6-700(c) (West 2000)). We held that “under the *** Code, a conviction that stems from a
bond forfeiture is equivalent to any other conviction” and that “[a] conviction is necessarily a
violation.” Id. at 186. We further considered the argument that the use of a bond-forfeiture
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judgment as a sentencing enhancement factor ran afoul of the holding in Apprendi v. New Jersey,
530 U.S. 466 (2000). Rejecting the argument, we reasoned as follows:
“In Apprendi, the United States Supreme Court held that any fact, other than a prior
conviction, that increases the penalty for an offense beyond the statutory maximum must
be submitted to the jury and proved beyond a reasonable doubt. [Citation.] The Supreme
Court reasoned that prior convictions do not implicate Apprendi because they involve
proceedings equipped with procedural safeguards. [Citation.] ***
Again, for purposes of the *** Code, a conviction that results from a bond
forfeiture is functionally equivalent to any other conviction. Although [defendant] argues
otherwise, bond forfeiture proceedings are not devoid of procedural safeguards. We note
that when a defendant fails to appear on charges under the Vehicle Code and
consequently sustains a conviction by way of a bond forfeiture, the defendant may move
to vacate that conviction. However, when a defendant fails to avail himself of this
safeguard, the legislature has permitted courts to infer that the defendant has committed
the offense. [Citation.] This inference passes constitutional muster. Highway driving is
a privilege and not a right. [Citation.] When a person obtains a driver’s license, he
consents to the conditions imposed by the legislature in exchange for that privilege.
[Citation.] One such condition is that a conviction that arises from a bond forfeiture is
like any other conviction upon which a court may rely in imposing an enhanced
sentence.” Smith, 345 Ill. App. 3d at 187.
¶5 Defendant maintains, however, that he availed himself of the procedural safeguards
discussed in Smith when he “appeared in the Circuit Court of McHenry County to resolve the
underlying misdemeanor DWLS charge against him.” Defendant contends that, based upon the
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dismissal of that charge, “the Illinois Secretary of State expunged and removed the judgment
bond forfeiture conviction from Borowski’s driving abstract.” The argument is without merit.
The circuit court of McHenry County denied defendant’s petition to vacate the bond forfeiture.
It is not apparent why, notwithstanding the denial of that petition, the notation of the bond
forfeiture was absent from the abstract of defendant’s driver’s license dated April 24, 2014. A
certified copy of the abstract of a motorist’s driver’s license is prima facie evidence of the facts
stated therein. 625 ILCS 5/2-123(g)(6) (West 2012); People v. Minor, 197 Ill. App. 3d 500, 502
(1990). Prima facie evidence is “[e]vidence that will establish a fact or sustain a judgment
unless contradictory evidence is produced.” (Emphasis added.) Black’s Law Dictionary 598
(8th ed. 2004). To the extent that the abstract dated April 24, 2014, was prima facie evidence
that there was no subsisting bond-forfeiture judgment against defendant, it was clearly
contradicted by the certified copy of the actual order denying the petition to vacate the bond
forfeiture and confirming that “[b]ond remains forfeited for failure to appear.”
¶6 In an apparent effort to avoid the effect of the certified copy of the order of the circuit
court of McHenry County, defendant argues that “based upon the Separation of Powers doctrine,
the Boone County judge must respect the administrative decision-making of the co-equal
Executive branch of government, being the Illinois Secretary of State, to vacate Borowski’s
judgment of bond forfeiture conviction.” Suffice it to say that, because defendant has cited no
authority in support of this argument, he has forfeited our review of this issue. Department of
Human Services v. Porter, 396 Ill. App. 3d 701, 719 (2009).
¶7 Defendant has likewise forfeited his alternative argument that, if, for purposes of section
6-303(d) of the Code, the bond-forfeiture judgment was a conviction as a matter of law, he
should have been admonished that a guilty plea would result in a felony conviction. Defendant
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cites no authority in support of this argument. Moreover, the argument is essentially a challenge
to his guilty plea. As such, appellate review is subject to compliance with Illinois Supreme
Court Rule 604(d) (eff. Feb. 6, 2013), which provides, in pertinent part, that “[n]o appeal from a
judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the
date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if
only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw
the plea of guilty and vacate the judgment.” (Emphasis added.) A motion filed prior to
sentencing does not satisfy Rule 604(d) for purposes of appeal. People v. Ramage, 229 Ill. App.
3d 1027, 1031 (1992). Defendant moved to withdraw his plea before sentencing. After
sentencing, he moved for reconsideration of his sentence and did not renew his motion to
withdraw his plea. Accordingly, the challenge to the plea is not properly before us.
¶8 For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed.
As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for
this appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill. 2d 166, 179
(1978).
¶9 Affirmed.
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