People v. Shoemaker , 2022 IL App (3d) 210216-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210216-UOrder filed October 21, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-21-0216
v. ) Circuit No. 19-CF-18
)
JOANNE MARGARET SHOEMAKER, ) Honorable
) Norma Kauzlarich,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
PRESIDING JUSTICE O’BRIEN delivered the judgment of the court.
Justices McDade and Daugherity concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The State presented insufficient evidence at sentencing to support the imposition of
a Class 4 felony sentence on defendant’s driving while license revoked offense.
¶2 Defendant, Joanne Margaret Shoemaker, appeals her conviction for driving while license
revoked (DWLR). She argues that the State presented insufficient evidence at sentencing to
establish that her DWLR offense was subject to a Class 4 felony sentence. We vacate in part and
modify the judgment.
¶3 I. BACKGROUND
¶4 The State charged defendant, by information, with DWLR, a Class 4 felony (625 ILCS 5/6-
303(d-2) (West 2018)). The information alleged that defendant’s license was revoked for driving
under the influence (DUI) in violation of section 11-501 of the Illinois Vehicle Code (Code) (625
ILCS 5/11-501 (West 2018)) and that she had previously been convicted of DWLR for a violation
under the Code on two prior occasions.
¶5 At defendant’s jury trial, deputy Russel Beaulieu testified that on January 7, 2019, he
effectuated a traffic stop on defendant’s vehicle for failing to use her turn signal. During the stop,
Beaulieu learned that defendant’s license was revoked. The State entered a page of defendant’s
driving abstract that stated “revocation was in effect on” January 7, 2019. The exhibit does not
state the basis for the revocation or indicate when the revocation was instated. The State did not
enter any other pages of defendant’s driving abstract.
¶6 Defense counsel moved for a directed verdict, arguing that the State had not presented
“evidence to the Court relating to [defendant’s] prior driving revoked to upgrade it to a Class 4
felony from a Class A misdemeanor.” The court stated that it “saw the charging instrument, and
*** took judicial notice of her prior conviction.” 1 The jury found defendant guilty, and the matter
proceeded to sentencing.
¶7 Defendant’s presentence investigation report (PSI) listed her prior criminal history, which
included convictions in Iowa for DUI in 2010. 2 In Illinois, defendant received one conviction for
1
Following the allegation that defendant had two prior DWLR offenses, the information states
“(RICO 1900209).” It is unclear whether this notation refers to a prior offense or the nature of that offense.
The record is absent any report of proceedings at the time the information was filed, and thus, there is no
indication that the State presented two prior convictions necessary to support the charge.
2
Iowa’s statute for operating while intoxicated (Iowa Code § 321J.2 (2010)) is the legal equivalent
of DUI in Illinois (625 ILCS 5/11-501 (West 2010)).
2
driving while license suspended (DWLS), a Class A misdemeanor, in 2011, and two convictions
for DWLS in 2018. The DWLS offenses were resolved by a fine only. The PSI contained no other
information regarding the status of defendant’s driver’s license, the basis for defendant’s prior
license suspensions, or the basis for the present revocation. The State did not enter any additional
evidence regarding defendant’s driving abstract or prior offenses, suspensions, or revocations.
¶8 The court sentenced defendant to two years’ imprisonment. Defendant appealed.
¶9 II. ANALYSIS
¶ 10 Defendant argues that the State failed to prove, by a preponderance of the evidence, the
sentence enhancing factor that the present DWLR was defendant’s third DWLR due to a prior DUI
conviction or DUI-based license revocation. Defendant concedes that she did not preserve the error
below but asks this court to review the issue under the second prong of the plain error analysis.
See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve an issue for appellate review, a
defendant must both object to the issue at trial and include it in a written posttrial motion).
¶ 11 The first step of the plain error analysis is to determine whether a clear, obvious, or plain
error has been committed. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). If the reviewing court
finds that a clear or obvious error has occurred, it is defendant’s burden to demonstrate that the
error is reversible under either the first or second prong of the plain error doctrine. See People v.
Hillier, 237 Ill. 2d 539, 545 (2010). In the context of sentencing, an error is reversible under the
second prong where that error “was so egregious as to deny the defendant a fair sentencing
hearing.” Id.¶ 12 Defendant was charged with DWLR under section 6-303(d-2) of the Code, which required
that the State prove a “third violation of this Section” to warrant the imposition of a Class 4 felony
sentence. 625 ILCS 5/6-303(d-2) (West 2018). Specifically,
3
“(1) the current violation occurred when the person’s driver’s license was
suspended or revoked for a violation of Section *** 11-501 of this Code, or a
similar out-of-state offense, *** or a statutory summary suspension or revocation
under Section 11-501.1 of this Code; and
(2) the prior convictions under this Section occurred while the person’s
driver’s license was suspended or revoked for a violation of Section *** 11-501 of
this Code, a similar out-of-state offense, *** or a statutory summary suspension or
revocation under Section 11-501.1 of this Code.” Id. § 6-303(d-2)(1), (2). 3
¶ 13 Section 6-303(d-2) is a substantive provision that allows the State to seek an enhanced
sentence based on a defendant’s prior offenses. See People v. Lucas, 231 Ill. 2d 169, 180 (2008).
The prior offenses are not elements of the offense that the State must prove at trial. Id. at 181.
Instead, the prior offenses are “ ‘factors in aggravation’ ” that the State must prove at sentencing
by a preponderance of the evidence. People v. Owens, 2016 IL App (4th) 140090, ¶ 37 (quoting
People v. Thompson, 328 Ill. App. 3d 360, 365 (2002)); People v. Brown, 229 Ill. 2d 374, 385
(2008). The basis for defendant’s revocation and her prior offenses can be established by certified
copies of defendant’s prior DWLS or DWLR convictions, defendant’s driving abstract, or
defendant’s PSI. See People v. DiPace, 354 Ill. App. 3d 104, 115 (2004); see also 625 ILCS 5/6-
303(f) (West 2018).
¶ 14 Here, the State only proved that defendant’s license was revoked on the date of the offense
by admitting a single page of her driving abstract. The driving abstract does not provide the basis
for or date of the revocation. Defendant’s PSI shows a 2010 DUI conviction but does not indicate
3
Under the Code, section 11-501 applies to DUI violations and section 11.501.1 applies to driver’s
license suspensions and revocations related to DUI’s.
4
whether defendant’s license was suspended or revoked following that conviction or when the
suspension or revocation was instated. Cf. Owens, 2016 IL App (4th) 140090, ¶¶ 35, 43 (defendant
properly received a felony DWLR enhancement where his PSI established that following two DUI
convictions defendant received a mandatory license revocation and the PSI did not show that
defendant’s license was reinstated following the revocation). The PSI also does not show the basis
for the suspensions causing her 2013 and 2018 DWLS convictions, basis for the present
revocation, nor any convictions for DWLR. Therefore, the State failed to present any evidence to
support the felony enhancement of the offense. We find that this sentencing error deprived
defendant of her right to a fair sentencing hearing and is a reversible second prong plain error. See
Hillier, 237 Ill. 2d at 545. Accordingly, we vacate defendant’s felony DWLR conviction and enter
a judgment of conviction on the charge of misdemeanor DWLR (625 ILCS 5/6-303(a) (West
2018)). Ill. S. Ct. R. 615(b)(3). Because the two-year sentence ordered by the circuit court exceeds
the maximum sentence allowed for a Class A misdemeanor, we reduce defendant’s sentence to
365 days. See People v. Lipscomb, 2013 IL App (1st) 120530, ¶¶ 12-13.
¶ 15 III. CONCLUSION
¶ 16 The judgment of the circuit court of Rock Island County is vacated in part and a modified
judgment is entered.
¶ 17 Vacated in part; judgment modified.
5