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People v. Barcik6/2/2005
Defendant, Victor M. Barcik, and his fiancée's evening of drinking and bowling ended unpleasantly when defendant was once again arrested for driving under the influence (DUI). After a jury trial, defendant was convicted of two counts each of aggravated DUI (625 ILCS 5/11-- 501(a)(2), (c--1)(3) (West 2002)) and enhanced driving while his license was revoked (DWLR) (625 5/6--303(a), (d) (West 2002)). Defendant was sentenced to seven years' imprisonment for DUI to run concurrently with a six-year sentence for DWLR. In this consolidated appeal, defendant argues that (1) his multiple convictions for each of his crimes violate the "one-act, one-crime" rule; (2) his extended sentence for DWLR is improper; and (3) the trial court erred in summarily dismissing his post-conviction petition. For the reasons that follow, we vacate one of defendant's convictions of both DUI and DWLR, remand his case for resentencing on the remaining count of DWLR, and dismiss his appeal from the dismissal of his post-conviction petition.
Shortly after midnight on March 1, 2003, defendant was pulled over by Sgt. Charles Yanz of the Wheaton police department, after Sgt. Yanz watched defendant's car, which had one headlight out, veer off the road, go onto a curb, go over the curb, and then crash back down onto the road. When Sgt. Yanz approached defendant's car, he smelled a strong odor of alcohol. In the car with defendant were his fiancée, Anita Mazzochi, and two other men. Defendant explained that he and his companions were coming from the Wheaton Bowl, a local bowling alley, and that he was driving because the others were too "messed up" to drive. As it turned out, after defendant failed several field sobriety tests, Sgt. Yanz arrested him for DUI.
At trial, defendant claimed that he was sober at the time of the arrest and that he was forced to drive because everyone else was drunk. Apparently unconvinced, the jury found him guilty of DUI. And because defendant's license was already revoked at the time of the incident, the jury also found him guilty of DWLR. In all, defendant was convicted of the following: (1) driving drunk when his license was revoked for reckless homicide; (2) driving drunk when his license was revoked for three or more DUI convictions; (3) driving with a revoked license when his license had been revoked for DUI; and (4) driving with a revoked license when his license had been revoked for reckless homicide.
On September 15, 2003, the trial court sentenced defendant to seven years for DUI concurrent with six years for DWLR. Two days later, on September 17, defendant filed a timely notice of appeal (No. 2--03-- 1045).
After defendant filed his notice of appeal, on September 18, the trial court held another hearing in defendant's case. At that hearing, the trial court sua sponte vacated one of defendant's convictions of DUI and both of his convictions of DWLR and merged all of defendant's convictions into the sole remaining DUI conviction.
About seven months later, in April 2004, defendant filed in the trial court a petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)). In his petition, defendant claimed that it was his lawyer's fault that he had been convicted of DUI. On April 9, the trial court dismissed defendant's petition as frivolous and patently without merit. See 725 ILCS 5/122--2.1(a)(2) (West 2002). Over 30 days later, on May 11, defendant filed a notice of appeal (No. 2--04--0476) to which he attached a handwritten note. In the upper right-hand corner of that note the notation "5-5-04" appears.
On October 25, 2004, this court granted defendant's motion to consolidate his appeals. We will
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