People v. Cox , 2022 IL App (5th) 200398 ( 2022 )

Rule 23 order filed 2022 IL App (5th) 200398November 2, 2022.
Motion to publish granted NO. 5-20-0398
November 28, 2022.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Effingham County.
)
v. ) No. 18-CF-447
)
TROYT A. COX, ) Honorable
) Allan F. Lolie,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court, with opinion.
Justices Welch and Cates concurred in the judgment and opinion.
OPINION
¶1 The defendant, Troyt A. Cox, was convicted, following a jury trial in the circuit court of
Effingham County, of driving while license revoked. He was thereafter sentenced to a term of 30
months of imprisonment in the Illinois Department of Corrections, to be followed by one year of
mandatory supervised release. This is his direct appeal from his conviction and sentence. For the
following reasons, we affirm.
¶2 I. BACKGROUND
¶3 Because the defendant’s sole argument on appeal involves a strictly legal issue, rather than
a factual one, we provide only those facts necessary to an understanding of the defendant’s
argument. On November 21, 2018, the defendant was charged, by information, with one count of
driving while license revoked. The information alleged, inter alia, that on that date, the defendant
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“drove a motor vehicle” while his driving privileges were “revoked by the Secretary of State of
Illinois, for a violation of Driving Under the Influence of Alcohol.” The information further alleged
“that the [d]efendant committed the violation of Driving While License Revoked or a similar
provision for the *** second or subsequent time,” which made the offense a Class 4 felony.
¶4 On December 12, 2018, the defendant was indicted for the same offense. The charging
language in the indictment was identical to the charging language in the information. On August
13, 2020, the defendant, acting pro se, filed a motion to dismiss the charge against him, contending,
in essence, that both the information and the indictment in this case failed to strictly comply with
the notice requirements of section 111-3(c) of the Code of Criminal Procedure of 1963 (725 ILCS
5/111-3(c) (West 2018)) because they did not identify the particular prior conviction or convictions
that the State wished to use to enhance his offense from a misdemeanor to a felony. He further
contended that none of his prior convictions met the requirements for enhancement of the offense
in this case.
¶5 On August 18, 2020, a hearing was held on the motion. After hearing argument from the
defendant, the trial judge denied the first portion of the defendant’s motion to dismiss, agreeing
with the State that the charging instrument did not need to list any particular prior convictions, and
instead needed only to state that there were qualifying prior convictions. He thereafter denied the
second portion of the defendant’s motion to dismiss as well, although he did not specify in detail
his reasons for so doing.
¶6 On August 27, 2020, the defendant, pro se, filed a second motion to dismiss, in which he
again contended, inter alia, that he had not been provided with adequate notice of the prior
convictions the State wished to use to enhance his offense. Prior to testimony beginning that
morning in the defendant’s jury trial, the trial judge addressed the motion. After hearing argument
from the defendant, the trial judge asked if the defendant had been provided, in discovery, with a
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copy of his driving abstract. The State contended that it had provided him with a copy, whereas
the defendant contended that he had not received one. The trial judge then ensured that the
defendant was provided with a copy. The trial judge thereafter ruled that the charge against the
defendant “was pled sufficiently although not the way I prefer to plead it. Not the way I used to
plead it. However, I think it was sufficient to put you on notice that it is a Class 4 felony. And that
they are going to be seeking a Class 4 sentence, if you are convicted based on allegation.” He
thereafter stated to the defendant, “Sir, the issue *** is whether or not you were currently a revoked
driver. The issue of whether *** it’s a misdemeanor or a felony is going to be reserved for
sentencing, if you’re convicted.”
¶7 At trial, the arresting officer testified for the State, and the State introduced into evidence
a redacted copy of the defendant’s driving abstract, which stated that the revocation of the
defendant’s driver’s license was in effect on the date of the alleged offense, November 21, 2018.
The defendant testified on his own behalf. Thereafter, the jury deliberated for approximately 10
minutes, then found the defendant guilty of the offense of driving while license revoked.
¶8 On September 28, 2020, the defendant filed a posttrial motion. He did not renew the
arguments raised in his previous motions to dismiss about receiving notice that was adequate under
section 111-3(c) of the Code of Criminal Procedure. A sentencing hearing was held on October
30, 2020. Therein, inter alia, the State, at the request of the trial judge, introduced into evidence a
certified copy of the defendant’s driving abstract. The trial judge thereafter noted that the defendant
had convictions for driving under the influence in 1991, 1997, and 1999, which “resulted in
revocation of [the defendant’s] driver’s license after 1999.” He explained to the defendant that for
sentencing purposes, “[t]he State alleges that you were convicted of driving while revoked. This
would be the second time. Meaning the one we are here on today. They would have to show that
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your 2010 Class 4 felony driving while revoked or your [2018] driving while revoked caused this.”
He thereafter added:
“My review of your abstract shows you have never been reinstated from that revocation.
So I will let you make your record. You’re driving while—you’re revoked from prior DUIs
and I do have documentary evidence that you have a prior conviction for DUI making this
a Class 4 felony. The only issue is whether or not it’s a third one or not. And I will have to
check the dates on that. Either way it’s going to be a Class 4 felony.”
¶9 Following additional argument from the defendant, the trial judge ruled that the defendant
was “clearly put on notice what [the State was] alleging and now they proved it up at sentencing.”
The parties presented arguments in aggravation and in mitigation, and the defendant offered a
statement in allocution. Thereafter, the trial judge sentenced the defendant to 30 months of
imprisonment in the Illinois Department of Corrections, to be followed by one year of mandatory
supervised release. The defendant noted that his September 28, 2020, posttrial motion had not been
ruled upon. Following arguments from the parties, the trial judge denied the motion. Subsequent
to the October 30, 2020, hearing, the defendant made various other pro se filings, all of which
eventually were denied, and none of which are relevant to this appeal, which was timely filed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, the defendant’s sole argument is that his conviction should be reduced from a
Class 4 felony to a Class A misdemeanor because, according to the defendant, “the charging
instruments failed to strictly comply with the notice requirements of [section] 111-3(c) of the Code
of Criminal Procedure by failing to identify the prior convictions being used [to] enhance the
sentence.” Specifically, he takes issue with the indictment in this case, which is the charging
instrument upon which he was tried. He acknowledges that this court reviews de novo the legal
question of whether a charging instrument such as an indictment is sufficient. See, e.g., People v.
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Carey, 2018 IL 121371, ¶ 19. He argues that pursuant to the plain language of section 111-3(c), in
order for the charging instrument to give adequate notice to the defendant, the charging instrument
was required to “state” the prior conviction or convictions being used to enhance his sentence,
which he interprets to mean that the charging instrument had to list a particular prior conviction or
convictions with more specificity than happened in this case. He notes that he has already served
his 30-month sentence, and therefore asks that this court reduce his conviction to a Class A
misdemeanor, rather than remanding for further proceedings in the circuit court. In support of his
substantive argument, the defendant asks us to consider, as persuasive authority, the unpublished
order of our colleagues in the First District in People v. Lyke, 2021 IL App (1st) 170371-U.
¶ 12 The State responds that it believes the indictment did strictly comply with the requirements
of section 111-3(c), because “the indictment fulfilled the notice requirement by stating that [the]
defendant committed a Class 4 felony, in violation of section 6-303(d) of the Vehicle Code (625
ILCS 5/6-303(d) (West 2018)),” which states, of relevance to this case, that anyone who violates,
a second or subsequent time, the section’s prohibition against driving while license revoked is
guilty of a Class 4 felony. The State contends that because “[t]he indictment expressly referenced
the relevant section under the Vehicle Code, and stated that [the] defendant committed the offense
of driving while license revoked ‘for a second or subsequent time,’ ” there was no lack of strict
compliance, and thus, no error. The State further contends that Lyke is not relevant to this case,
because in Lyke, the charging instrument did in fact list a particular prior conviction, including its
trial court case number, but when that prior conviction was subsequently vacated, the State asked
to use a different prior conviction, for a different offense—which was not listed at all in the
charging instrument—to enhance the defendant’s sentence, whereas “the indictment in the present
case gave proper notice to [the] defendant that the State intended to seek an enhanced sentence
due to [the] defendant’s prior [driving while license revoked] or similar driving convictions.” The
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State adds that in this case, “the indictment correctly notified [the] defendant of the existence of
the predicate *** convictions,” whereas “[n]o such notice of a valid predicate conviction was given
in Lyke, where the particular felony conviction stated in the indictment was void ab initio and had
been vacated prior to the defendant’s sentencing hearing, and the indictment did not identify
another basis for the enhancement.”
¶ 13 In his reply brief, the defendant contends that in this case, “the indictment’s general
allegation” of a qualifying predicate felony conviction is simply not the same thing, in terms of
strict compliance, as identifying the particular prior felony conviction or convictions the State
wishes to use to enhance the defendant’s sentence. He argues that section “111-3(c)’s first
requirement to give notice of the State’s intention to seek an enhanced sentence based on a prior
conviction already gives the defendant notice that a valid predicate conviction may exist,” because
“the State would not be seeking to enhance the sentence based on a prior conviction unless a prior
conviction existed.” He adds that “the second requirement to ‘state such prior conviction’
necessarily must require something more, otherwise that portion of the statute would be
superfluous.” He also opines that the State’s efforts to distinguish Lyke are not convincing, and
that pursuant to Lyke, there was no strict compliance in this case.
¶ 14 Having recounted the positions of the parties on appeal, we turn to the law at issue in this
case. Section 111-3(c) of the Code of Criminal Procedure of 1963 states, in relevant part, that
“[w]hen the State seeks an enhanced sentence because of a prior conviction, the charge shall also
state the intention to seek an enhanced sentence and shall state such prior conviction so as to give
notice to the defendant.” 725 ILCS 5/111-3(c) (West 2018). The Illinois Supreme Court has held,
on multiple occasions, that section 111-3(c) was enacted by the Illinois General Assembly to
ensure that a defendant receives notice, prior to that defendant’s trial, of the offense or offenses
with which the defendant is charged, and has also held that “the notice provision applies only when
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the prior conviction that would enhance the sentence is not already an element of the offense.”
People v. Easley, 2014 IL 115581, ¶¶ 18-19. Moreover, as the defendant points out, the Illinois
Supreme Court has held that “when an indictment or information is challenged before trial, the
indictment or information must strictly comply with the pleading requirements of section 111-3,”
and if it does not do so, “the proper remedy is dismissal.” People v. Espinoza, 2015 IL 118218,
¶ 23.
¶ 15 The parties have provided this court with no binding precedential authority—and no
persuasive authority other than Lyke—that discusses what “strict compliance” means in terms of
the level of descriptive detail about a prior conviction that must be provided for a charging
instrument to adequately meet section 111-3(c)’s requirement that “[w]hen the State seeks an
enhanced sentence because of a prior conviction, the charge shall also state the intention to seek
an enhanced sentence and shall state such prior conviction so as to give notice to the defendant.”
725 ILCS 5/111-3(c) (West 2018). Indeed, as explained below, even the Lyke decision does not
address that particular question.
¶ 16 In Lyke, the defendant was charged, by indictment, with one count of unlawful use of a
weapon by a felon and two counts of aggravated unlawful use of a weapon. 2021 IL App (1st)
170371-U, ¶ 7. The first count was based upon the defendant’s prior conviction for “ ‘the felony
offense of aggravated unlawful use of a weapon, under case number 11 CR 18974,’ ” while the
latter two counts “announced the State’s intention ‘to sentence [the defendant] as a Class 2 offender
in that he has been previously convicted of the offense of aggravated unlawful use of weapon under
case number 11 CR 18974.’ ” Id. At trial, the State introduced into evidence, inter alia, a certified
copy of the defendant’s conviction in 11 CR 18974. Id. ¶ 22. Ultimately, the defendant was
convicted at trial of both counts of aggravated unlawful use of a weapon. Id. At his subsequent
sentencing hearing, the defendant notified the trial judge that his 2011 conviction for aggravated
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unlawful use of a weapon was vacated in January of 2017. Id. ¶ 23. After the trial judge stated that
he would not take the defendant’s vacated conviction into consideration, the State informed the
court that the defendant had a 2010 conviction for possession of a controlled substance, and the
trial judge ultimately imposed a Class 2 felony sentence. Id.
¶ 17 Our colleagues in the First District observed, as have we, that the language of section 111-
3(c) states that when an enhancement is sought, “the charge shall also state the intention to seek
an enhanced sentence and shall state such prior conviction so as to give notice to the defendant.”
(Internal quotation marks omitted.) Id. ¶ 55. The Lyke court thereafter stated that “[a]s indicated
by the ‘and’ in this sentence, both are required,” because “[t]o interpret the statute in any other
manner would be to render the word meaningless and insignificant, which we must not do.” Id.
¶ 56. The court subsequently stated that “section (c) also requires that the charging instrument state
which prior conviction is serving as the basis of the enhancement.” (Emphasis in original.) Id. ¶ 61.
Ultimately, the court ruled that the trial judge improperly enhanced the defendant’s sentence from
Class 4 to Class 2 on the basis of the 2010 conviction for possession of a controlled substance,
because the indictment gave notice only of the State’s intent to sentence the defendant as a Class
2 offender on the basis of his prior conviction for aggravated unlawful use of a weapon in case No.
11 CR 18974—which the court reiterated had been vacated pursuant to Illinois Supreme Court
precedent and accordingly was considered void ab initio—and because, therefore, the indictment
did not provide “proper notice pursuant to section 111-3(c), where the State effectively failed to
‘state such prior conviction so as to give notice to the defendant.’ ” Id.
¶ 18 Thus, Lyke addressed the question of whether, if the charging instrument has alleged a
particular prior conviction as a basis for enhancement of the defendant’s sentence, the State can,
at the time of sentencing, replace that particularly-described—and subsequently vacated—
conviction with a different prior conviction, for an entirely different offense. The Lyke court ruled
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that, at least in situations where the original prior conviction was vacated and deemed to be void
ab initio—and thus the indictment could not be said to “state” any valid prior conviction at all—
the answer was no. The Lyke court was not asked to address, and in fact did not address, the
question of what “strict compliance” means in terms of the level of descriptive detail about a prior
conviction that must be provided in all cases for a charging instrument to adequately meet section
111-3(c)’s requirement that “[w]hen the State seeks an enhanced sentence because of a prior
conviction, the charge shall also state the intention to seek an enhanced sentence and shall state
such prior conviction so as to give notice to the defendant.” Accordingly, we agree with the State
that the Lyke decision is of limited usefulness to our resolution of that question.
¶ 19 We reiterate that the Illinois Supreme Court, in Easley and in other cases, has held that
section 111-3(c) was enacted by the Illinois General Assembly to ensure that a defendant receives
notice, prior to that defendant’s trial, of the offense or offenses with which the defendant is
charged. See 2014 IL 115581, ¶ 18. In light of that holding, we conclude that in this case, the
indictment—which, as described above, alleged for purposes of the proposed enhancement “that
the [d]efendant committed the violation of Driving While License Revoked or a similar provision
for the *** second or subsequent time”—was specific enough to provide adequate notice and
therefore to strictly comply with section 111-3(c). The indictment told the defendant that if he was
found guilty of the charged offense, his sentence would be enhanced because he had previously
violated—on one or more occasions—the prohibition against driving while his license was
revoked, or had previously violated—on one or more occasions—a similar provision. We fail to
see how this notice was inadequate to apprise the defendant of the charge and the basis of the
possible sentencing enhancement, or how it otherwise fails to strictly comply with section 111-
3(c). We also fail to see how it is analogous to the situation in Lyke, where the State, at sentencing,
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relied upon an entirely different offense than that listed in the indictment for its proposed
enhancement.
¶ 20 With regard to the defendant’s argument that section 111-3(c) has two requirements—that
the State give notice of its intent to seek enhancement based upon a prior conviction or convictions
and that it “state such prior conviction”—we agree that this is true, but we do not agree that this
cannot be done in a concise manner, such as in a single sentence, as occurred here, and we do not
agree that in this case “stating” such prior convictions required anything other than using language
such as that used in this case: “that the [d]efendant committed the violation of Driving While
License Revoked or a similar provision for the *** second or subsequent time.” Our conclusion is
supported by a comparison of section 111-3(c) to section 111-3(a). Section 111-3(a) sets out the
specific requirements for criminal charges, stating that they “shall be in writing and allege the
commission of an offense by” the following:
“(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused
by any name or description by which [the accused] can be identified with reasonable
certainty.” 725 ILCS 5/111-3(a) (West 2018).
¶ 21 When this detailed language is compared to section 111-3(c)’s straightforward directive
that “[w]hen the State seeks an enhanced sentence because of a prior conviction, the charge shall
also state the intention to seek an enhanced sentence and shall state such prior conviction so as to
give notice to the defendant,” it is clear that the General Assembly has demonstrated that when a
certain level of descriptive detail is required for the charging instrument to be in strict compliance
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with section 111-3(c), the General Assembly will specify what that level of descriptive detail is.
We conclude that because in section 111-3(c), the General Assembly provided no such
specifications with regard to how to “state” prior convictions, it is reasonable to conclude that strict
compliance with section 111-3(c) does not require anything more than what the State provided in
this case, which, as noted above, apprised the defendant of the convictions that could be used to
enhance his sentence in this case.
¶ 22 III. CONCLUSION
¶ 23 For the foregoing reasons, we affirm the defendant’s conviction and sentence.
¶ 24 Affirmed.
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People v. Cox, 2022 IL App (5th) 200398Decision Under Review: Appeal from the Circuit Court of Effingham County, No. 18-
CF-447; the Hon. Allan F. Lolie, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Brian W. Carroll, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino, Patrick D. Daly, and Timothy D. Berkley, of
for State’s Attorneys Appellate Prosecutor’s Office, of Mt. Vernon,
Appellee: for the People.
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