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

Illinois Official Reports
Appellate Court
People v. Borowski, 2015 IL App (2d) 141081
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption WAYNE A. BOROWSKI, Defendant-Appellant.
District & No. Second District
Docket No. 2-14-1081
Filed August 5, 2015
Decision Under Appeal from the Circuit Court of Boone County, No. 08-CF-571; the
Review Hon. C. Robert Tobin III, Judge, presiding.
Judgment Affirmed.
Counsel on Daniel J. Regna (argued), of Woodstock, for appellant.
Appeal
Michelle J. Courier, State’s Attorney, of Belvidere (Lawrence M.
Bauer and Victoria E. Jozef (argued), both of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel 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 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
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.
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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
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
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
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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
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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