The opinion
JUSTICE DOYLE, dissenting:
The majority holds today that a prior disposition of supervision does not qualify as a predicate offense for enhancement purposes in the absence of competent corroborative evidence from which the trial court could determine that a defendant who received supervision did in fact commit an act of DUI.
In reaching its conclusion, the majority determined that the felony enhancement provision in the DUI statute is ambiguous because the State and defendant presented reasonably differing interpretations of the word "committed.” Following an examination of the legislative debates relating to the felony enhancement provision, the majority finds no clear expression of legislative intent and therefore concludes that "[s]ince the legislature did not express a clear opinion as to whether a plea to supervision proves a commission for enhancement, it is not for [the majority] to do so.” (261 Ill. App. 3d at 331.) The majority, however, then proceeds to fashion a rule which would require the State to provide competent corroborative evidence from which the trial court could determine whether a defendant did, in fact, commit the previous act of DUI. For the several reasons that follow, I respectfully dissent.
Initially, I disagree with the conclusion that the term "committed” is ambiguous. The majority’s conclusion rests solely on the basis that both parties perceive differing legislative prerogatives underlying the use of the word "committed.” This conclusion, in my opinion, merely begs the question of ambiguity.
Unlike the majority, I perceive the use of the term "committed” as a clear and unambiguous expression of legislative intent, thus making it unnecessary to resort to legislative history (see Nevitt v. Langfelder (1993), 157 Ill. 2d 116, 134 ), which, in any event, the majority ultimately concedes is unavailing. It is a fundamental tenet of statutory construction that where the language of a statute is clear and unambiguous, the only role of the court is in its application. (In re M.M. (1993), 156 Ill. 2d 53 , 69.) Where the language is clear, it will be given effect without resort to other aids for construction. People ex rel. Baker v. Cowlin (1992), 154 Ill. 2d 193, 197 .
In my opinion, the determinations reached by the Appellate Court, First and Third Districts, in People v. Winkler (1993), 248 Ill. App. 3d 954 , and People v. Lambert (1993), 249 Ill. App. 3d 726 , better reveal the legislative intent underlying the enhancement provision of section 11—501. In Winkler, the Appellate Court, First District, rejected the defendant’s argument that he could not be charged with felony DUI because he pleaded guilty and was placed on supervision on one of the two predicate offenses. Finding the relevant statutory language clear and unambiguous, the court found it significant that the provision did not recite that two prior convictions were necessary for enhancement; instead, the legislature chose to employ the broader term "committed.” The court observed that the commission of the prior act is established by a disposition of supervision "because a defendant must have pled guilty or stipulated to the facts supporting the charge before supervision could be imposed.” Winkler, 248 Ill. App. 3d at 957 .
Applying similar reasoning, the Appellate Court, Third District, in Lambert, held that the term "committed” encompassed a prior supervision disposition. (Lambert, 249 Ill. App. 3d at 729-30 .) The court reasoned that had the legislature intended to require two prior convictions as the predicate offenses, it could have easily utilized such language. (Lambert, 249 Ill. App. 3d at 729 .) I agree with the analysis set forth in Winkler and Lambert.
Supervision clearly is not synonymous with conviction. However, inherent in an order of supervision is that some determination of guilt has occurred which authorized that disposition. As recognized in Winkler and Lambert, and expressed by the legislature, a defendant can receive supervision only if he has pleaded guilty, stipulated to the facts supporting the charge, or there has been a finding of guilt. Ill. Rev. Stat. 1991, ch. 38, par. 1005—6—1(c) (now 730 ILCS 5/5—6—1(c) (West 1992)); Winkler, 248 Ill. App. 3d at 956 .
In the present case, Pall and Sheehan both acknowledged that some determination of guilt occurred prior to receiving a disposition of supervision. In his motion to dismiss, Pall stated he pled guilty to DUI on August 25, 1982, and was placed on court supervision. In his motion in limine, Sheehan stated that on or about February 5, 1986, he entered a plea of guilty to the August 31, 1985, offense of driving while under the influence.
In Kirwan v. Welch (1989), 133 Ill. 2d 163 , the court, in examining the nature of supervision, stated:
"A discharge and dismissal upon a successful conclusion of supervision is without an adjudication of guilt and does not result in a conviction for purposes of disqualification or disabilities imposed by law. [Citation.] However, if a defendant violates the conditions of his supervision, the supervision may be revoked and any other sentence available at the time of the initial sentencing may be imposed.” ( 133 Ill. 2d at 166 .)
Implicit in this court’s pronouncement is the notion that a prior determination that a defendant committed a violation of an offense is a necessary prerequisite to the entry of an order of supervision. Otherwise, a defendant could be punished for the violation of his supervision only following a redetermination of guilt by plea, stipulation, or trial before the imposition of an alternate sentence.
Furthermore, although the legislature has determined that "[discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt” (see Ill. Rev. Stat. 1991, ch. 38, par. 1005—6—3.1(f) (now 730 ILCS 5/5—6— 3.1(f) (West 1992))), I am unpersuaded that it intended to preclude an order of supervision as a predicate offense for felony enhancement purposes. The ultimate dismissal of the charge following the satisfactory completion of a supervision period does not, in my view, nullify the judicial determination that the offense was committed. Instead, it merely mitigates the otherwise permanent effect of a judgment of conviction. I must respectfully disagree with the majority’s apparent refusal to recognize any distinction between a judicial determination of guilt and a judgment of conviction. To ignore the commission of a previous DUI violation for penalty enhancement purposes solely because the legislature has provided for the mitigation of the long-term effect of a judgment of conviction runs counter to this State’s extensive efforts to address the problem of intoxicated drivers and serves to undermine the deterrent effect of the felony DUI statute.
The majority expresses a concern that innocent defendants may enter "pleas of convenience” (261 Ill. App. 3d at 332) in order to obtain the more lenient disposition of supervision. It correctly notes that a court, in accepting a guilty plea, is not required to make an independent finding that the evidence would prove guilt beyond a reasonable doubt. It goes on to conclude, "[b]ecause of this lesser quantum of evidence required for the taking of a guilty plea, we may not hold that one who pleads guilty to obtain court supervision will then conclusively be presumed upon a later conviction to have ’committed’ the underlying act of DUI in the case in which he or she received the supervision” (261 Ill. App. 3d at 332). I, on the other hand, have no hesitation whatsoever in entertaining such a presumption for the purpose of establishing the penalty range for an alleged repeat offender. An accused person who stands before the court and, after receiving full admonitions and a supporting factual statement, chooses to voluntarily plead guilty must understand that it is not unreasonable for the court to regard his plea as a determination that he committed the offense.
Citing People v. Finley, the majority would also preclude the use of the previous offenses for enhancement purposes because the State failed to demonstrate that defendants had the benefit of counsel prior to entering the pleas which resulted in supervision. However, unlike the facts of Finley, the issue of whether the pleas were counseled was never raised by defendants in the trial court or on appeal. The record contains no indication that defendants were not represented by counsel when entering their pleas. Although I agree with the court in Finley that when a defendant attacks the use of the underlying conviction or guilty plea on the ground that he was denied his constitutional right to counsel, the burden falls upon the State to rebut the claim or to demonstrate that the defendant waived his right to counsel, I find no support for the majority’s proposition that this court must presume from an incomplete record that a defendant has been denied his right to counsel. Because defendants have not presented this issue, it is understandable that the record before this court would not reflect whether the underlying pleas resulting in dispositions of supervision were counseled.
Accordingly, I would reverse the orders of the circuit court of Kane County dismissing the complaints against Pall and Sheehan.