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No. 2--03--0441

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

The issue before us is the meaning of section 11--501(c--1)(2) of the Illinois Vehicle Code(Code) (625 ILCS 5/11--501(c--1)(2) (West 2000)). In appealing the partial dismissal of hispostconviction petition, defendant, Thomas J. Roland, argues that his conviction of violating section11--501(c--1)(2) is invalid because the statute is ambiguous. We disagree, and thus we affirm.

Defendant pleaded guilty to two counts of Class 3 felony driving under the influence ofalcohol (DUI) (625 ILCS 5/11--501(c--1)(2) (West 2000)), one count of Class 4 felony DUI (625ILCS 5/11--501(d)(1)(A) (West 2000)), one count of driving while his license was suspended (625ILCS 5/6--303(d) (West 2000)), and one count of unlawful possession of cannabis (720 ILCS550/4(c) (West 2000)). The Class 3 DUIs were based on the fact that defendant had two previousDUI convictions and the present violations occurred while his license was revoked. See 625 ILCS5/11--501(c--1)(2) (West 2000). The trial court sentenced defendant to concurrent sentences of 5years' imprisonment for the Class 3 DUIs, 3 years' imprisonment for the Class 4 DUI, 3 years'imprisonment for driving with a suspended license, and 364 days' imprisonment for possession ofcannabis. Defendant did not appeal his sentence.

Defendant later filed a pro se postconviction petition pursuant to the Post-Conviction HearingAct (725 ILCS 5/122--1 et seq. (West 2000)). In his petition, defendant alleged that he had receivedineffective assistance of counsel because his attorney advised him to plead guilty to the Class 3 DUIs. He asserted that he should not have been charged with these offenses because his previous DUIviolations had not occurred while his license was revoked or suspended. He also argued that basedon the "one-act, one-crime" doctrine, he should have been convicted of only one of the three DUIcounts. The State moved to dismiss the petition, the court appointed defendant counsel, anddefendant filed a written response to the State's motion. Following a hearing, the court vacateddefendant's convictions of the Class 4 DUI and one of the Class 3 DUIs. However, the court foundthat defendant's remaining Class 3 DUI conviction should stand, because section 11-501(c-1)(2)required only that defendant's license be revoked or suspended at the time of the third DUI, not atthe time of the two prior violations. Defendant appealed.

Defendant argues that section 11--501(c--1)(2) of the Code is ambiguous. Section 11--501(c--1)(2) provides:

"A person who violates this Section a third time during a period in which his or herdriving privileges are revoked or suspended where the revocation or suspension was for aviolation of this Section, Section 11--501.1, paragraph (b) of Section 11--401, or Section 9--3of the Criminal Code of 1961 is guilty of a Class 3 felony." 625 ILCS 5/11--501(c--1)(2)(West 2000).

Defendant contends that section 11--501(c--1)(2) has two possible meanings: (1) that all threeviolations must have occurred while the defendant's license was revoked or suspended, or (2) thatonly the third violation must have occurred while the defendant's license was revoked or suspended. Defendant further argues that because the section is ambiguous, we must construe it in his favor, andthus follow the first interpretation. See People v. Whitney, 188 Ill. 2d 91, 98 (1999).

The primary rule of statutory construction is to ascertain and give effect to the legislature'sintent. People v. Donoho, 204 Ill. 2d 159, 171 (2003). The best indicator of legislative intent is theplain language of the statute. Donoho, 204 Ill. 2d at 171. "A statute is ambiguous if it is subject totwo or more reasonable interpretations." Donoho, 204 Ill. 2d at 172. Where, however, the statutorylanguage is clear and unambiguous, its plain meaning will be given effect. Whitney, 188 Ill. 2d at 97.We review de novo the interpretation of a statute. Donoho, 204 Ill. 2d at 172.

We hold that section 11--501(c--1)(2) of the Code is not ambiguous. The plain language ofthe statute reveals that the phrase "during a period in which his or her driving privileges are revokedor suspended" qualifies the phrase "violates this Section a third time." Thus, only the third DUIviolation must occur while the individual's license is revoked or suspended. In order for defendant'salternate reading of the statute to make sense, we would have to interpret the term "this Section" tomean "subsection 11--501(c--1)(1)."⁽¹⁾ However, the term "this Section" clearly means section 11--501. See People v. Elizalde, 344 Ill. App. 3d 678, 680 (2003) ("A third violation of section 11--501is a Class 3 felony under section 11--501(c--1)(2) of the Code" (emphasis added)). Had thelegislature intended to condition a Class 3 felony on the commission of three violations of subsection11--501(c--1)(1), it easily could have done so. Indeed, in other parts of section 11--501, thelegislature explicitly conditioned penalties on violations of specific subsections of section 11--501. See 625 ILCS 5/11--501(c--4)(3) (West 2000) ("[a] person who is convicted of violating subsection(a) of Section 11--501 of this Code *** is guilty of a Class 4 felony"); 625 ILCS 5/11--501(c--4)(4)(West 2000) ("[a] person who is convicted of violating this subsection (c--4) a fourth or subsequenttime is guilty of a Class 2 felony"). In section 11--501(c--1)(2) of the Code, however, it did not doso.

We also find support for our decision in People v. Smith, 345 Ill. App. 3d 179 (2004). There,the defendant was convicted of a violation of section 11--501(c--1)(3), a subsection identical tosection 11--501(c--1)(2), except that it requires three prior DUI violations. The defendant appealed,arguing that the trial court had improperly considered a previous DUI conviction that had resultedfrom a bond forfeiture. We affirmed. Although we did not address whether section 11--501(c--1)(3)was ambiguous, we did reason that pursuant to that section "a DUI offender with three or more priorDUI offenses may be sentenced as a Class 2 felon if the offender has committed the present offensewhile his or her driver's license was revoked or suspended for a violation of the DUI statute." (Emphasis added.) Smith, 345 Ill. App. 3d at 188. We therefore held that the trial court properlysentenced the defendant because he had three prior DUI convictions and the present convictionoccurred while his license was revoked. Smith, 345 Ill. App. 3d at 188-89.

Accordingly, section 11--501(c--1)(2) provides that an individual with two prior violationsof any provision of section 11--501, whose third DUI violation occurs while the individual's licenseis revoked or suspended, is guilty of a Class 3 felony. Here, it is undisputed that defendant had twoprior violations of section 11--501 and that his third DUI violation occurred while his license wasrevoked because of a DUI violation. This is a violation of section 11--501(c--1)(2). Thus, the trialcourt properly dismissed the ineffective assistance of counsel claim in defendant's postconvictionpetition.

The judgment of the circuit court of Jo Daviess County is affirmed.

Affirmed.

BYRNE and CALLUM, JJ., concur.

1. Section 11--501(c--1)(1) of the Code provides: "A person who violates this Section during a period in which his or her driving privileges are revoked or suspended, where the revocation or suspension was for a violation of this Section, Section 11--501.1, paragraph (b) of Section 11--401, or Section 9--3 of the Criminal Code of 1961 is guilty of a Class 4 felony." 625 ILCS 5/11--501(c--1)(1) (West 2000).