People v. Grogg

2022 IL App (3d) 190353-U

• Court: Appellate Court of Illinois
• Decided: September 19, 2022
• Docket: 3-19-0353
• Status: Unpublished

Opinion

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) 190353

Order filed September 19, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the Tenth Judicial Circuit, ) Tazewell County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-19-0353 v. ) Circuit No. 15-CF-214 ) DAVID C. GROGG, ) Honorable ) Frank W. Ierulli, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court. Justices Daugherity and Hauptman concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) The State had no duty to prove beyond a reasonable doubt that defendant had four prior convictions for driving under the influence and (2) defendant’s trial counsel was not ineffective for not filing a motion to suppress.

¶2 Defendant, David C. Grogg, was indicted on charges of aggravated driving under the

influence (DUI) (625 ILCS 5/11-501(d)(1)(A) (West 2014)) and driving while license revoked

(id. § 6-303(a). He was found guilty of both counts in a bench trial. After denying his amended motion for a new trial, the trial court sentenced him to a four-year term of incarceration. He has

challenged both the conviction and the sentence. For the reasons that follow, we affirm both.

¶3 FACTS

¶4 David Grogg was charged with one count of aggravated DUI and one count of driving

while license revoked. The indictment for the aggravated DUI charged Grogg with a Class 1

felony offense and alleged that at the time of the offense, Grogg had a blood alcohol content of

0.16 or greater and had at least four prior DUI violations.

¶5 Grogg hired private counsel to represent him, waived his right to a jury, and proceeded to

a bench trial. On the day that Grogg’s trial was to begin, defense counsel asked for a continuance

because a witness for the defendant had suffered a stroke, could not come to court, and could

barely communicate. The State objected to the continuance, and the trial court ruled that the

State’s case-in-chief would commence, and the defendant’s case would be continued for 60 days

to allow defense counsel time to see if the incapacitated witness would be able to testify.

¶6 During the State’s case, Pekin police officer Cory Mitchell testified to the circumstances

of Grogg’s arrest. Mitchell’s motorcycle was not equipped with a video camera, but a second

officer arrived in a squad car, which was so equipped and recorded the incident. The State

offered that recording, which showed Mitchell administering a field sobriety test to Grogg and

arresting him, into evidence. In the video, Grogg denied driving the vehicle and stated that he

had been in the backseat, but Mitchell told Grogg that he had seen him driving the vehicle.

¶7 On direct examination, Mitchell testified that at around 4:30 p.m. on March 31, 2015, he

was on duty on a motorcycle in Pekin, Illinois. Dispatch notified him that someone had called the

police about a blue van which, after moving very slowly on Court Street, had pulled into a

parking lot near a Gold’s Gym and a Wal-Mart. Mitchell saw a van matching the description in a

2 Wal-Mart parking lot “driving at a 90-degree angle to all the parking lanes in the parking lot,”

and he stopped the van because he did not “want anybody to get into an accident.” There was

another man in the passenger seat of the vehicle. The vehicle was still in drive as Mitchell

approached it, and Mitchell ordered the driver numerous times to place the vehicle in park before

he complied. Mitchell identified Grogg as the driver of the van. Grogg had the odor of alcohol

emanating from him a cup of orange liquid which he placed behind him. He also had difficulty

getting out of the vehicle. Mitchell administered a horizontal gaze nystagmus test to Grogg and

Grogg exhibited six out of the six possible clues of intoxication.

¶8 The defense stipulated that Grogg was intoxicated and that a subsequent blood draw

showed that Grogg had a blood alcohol content of .255 g/dL after his arrest. Counsel informed

the court, however, that the defendant denied he had been the person driving the vehicle. During

cross-examination of Mitchell, the defense played a portion of a video which showed Grogg at

the police station after his arrest. The State introduced a copy of Grogg’s driving abstract

showing that his driver’s license was revoked at the time of his arrest.

¶9 The State rested, and the case was continued to allow the defense an attempt to secure a

witness. The defense case began about six months after the State had rested.

¶ 10 Grogg testified in his own defense. He stated that on March 31, 2015, he was a passenger

in the back of a van driven by John Robinson. Robinson had chosen the parking lot to practice

parallel parking before taking the driving test for renewal of his license. Grogg chose to exit the

van so that he could give Robinson “directional hand signals” to help him parallel park. Because

the handle on the back door was broken, Grogg had to exit from the front. Robinson went to the

passenger side and Grogg was exiting the vehicle on the driver’s side when the police “showed

3 up.” Grogg denied ever driving the van. Grogg admitted that he had been drinking beer that day.

He also admitted that he had “some prior DUI or drunk driving history.”

¶ 11 The defense rested. On May 29, 2018, Grogg was found guilty of aggravated driving

under the influence of alcohol and driving while license revoked. After his trial counsel

withdrew, Grogg was appointed a new public defender who filed a motion to reconsider the

guilty verdict. Grogg then hired two new attorneys who filed an amended motion for a new trial,

alleging his trial counsel was ineffective for (1) failing to secure Robinson as a witness, (2)

losing pictures that showed the van’s windows were tinted, and (3) failing to properly cross-

examine Mitchell. Grogg also argued that on the first day of his trial, he believed that he was in

court for a “402 conference” and not a trial.

¶ 12 A year later, the trial court held a hearing on the amended motion. Grogg testified, stating

that he believed that the first day of the bench trial was a “402 conference.” He expected there

would be “a discussion as to potentially what the judge would impose if [he was] found guilty.”

He claimed he had given photographs of his van and an affidavit from Robinson to his trial

counsel, but counsel either lost the photographs or declined to bring them to court. He admitted

that Robinson was still incapacitated in a nursing home and could only speak very softly. He

explained that the trial strategy was to stipulate that he was intoxicated, and the focus of his

defense would be on his claim that he was not actually driving the van. He believed there was

some pretrial discussion with his trial attorney about whether or not “the approach of the officer

to the vehicle was proper and lawful.” The trial court denied the motion.

¶ 13 The case proceeded to sentencing where the parties stipulated that Grogg had four prior

DUI violations. The trial court sentenced Grogg to four years’ imprisonment in the Illinois

Department of Corrections. On June 19, 2019, Grogg filed a notice of appeal.

4 ¶ 14 ANALYSIS

¶ 15 On appeal, Grogg argues that the State’s evidence was insufficient to prove him guilty of

aggravated DUI. Alternatively, he argues that his trial counsel was ineffective for not filing a

motion to suppress the evidence obtained during his traffic stop. We find his argument without

merit and affirm his conviction.

¶ 16 A. Sufficiency of the Evidence

¶ 17 Grogg was convicted of aggravated DUI, enhanced to a Class 1 felony pursuant to

subsection 11-501 (d)(2)(D) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(2)(D) (West

2014)). Under subsection (a)(2) of the Code, a person commits a Class A misdemeanor DUI by

(1) driving or being in actual physical control of any vehicle (2) while under the influence of

alcohol. (625 ILCS 5/11-501(a)(2) (West 2014)). Subsection (d)(1)(A) elevates a section (a)

violation to an aggravated DUI (a felony) where the defendant has two prior violations. (625

ILCS 5/11-501(d)(1)(A) (West 2014)). Under subsection (d)(2)(D), an aggravated DUI is a Class

1 felony if the defendant has four prior DUI violations. (625 ILCS5/11-501(d)(2)(D) (West

2014)).

¶ 18 The due process clause protects an accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime charged. U.S. Const., amends.

V, XIV; Ill. Const. 1970, art. I, § 2; In Re Winship, 397 U.S. 358, 363 (1970). Grogg contends

that the evidence presented at trial only supports the Class A misdemeanor because the State

presented no evidence of any prior DUI violations. He argues that the prior violations required to

elevate the misdemeanor offense to a felony are elements of subsection (d)(1)(A). He requests

that this Court reduce his conviction and resentence him accordingly.

5 ¶ 19 The prior DUI convictions are not elements of the subsection (d)(1)(A) offense. People v.

Brose, 2021 IL App (3d) 180630, ¶ 19. They are aggravating factors that enhanced his offense.

Id. Grogg’s third violation raised the offense to an aggravated DUI and his fourth offense

elevated the sentencing to a Class 1 felony. “Since prior DUI violations are not an element of

aggravated DUI, the State was not required to prove” them to the trier of fact beyond a

reasonable doubt. Id.

¶ 20 As was done in Brose, Grogg asks that we follow People v. Zimmerman, 239 Ill. 2d 491

(2010), where “the supreme court held that a prior adjudication of delinquency was an element of

the offense of aggravated unlawful use of a weapon.” Id. at ¶ 20. We rejected this argument in

Brose and do so again here. Id. at ¶¶ 20–21. Unlike the aggravated DUI, the aggravated unlawful

use of weapon offense “is an offense distinct and apart from unlawful use of a weapon.” Id. at ¶

21. “Here, the legislature wrote the DUI statute differently. Section 11-501 of the Illinois Vehicle

Code defines the offense of driving while under the influence of alcohol to include factors that

may result in an aggravated charge.” Id.

¶ 21 Moreover, unlike other enhancing factors, the State need not submit prior convictions to

the trier of fact. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). At trial here, the State

introduced a copy of Grogg’s driving abstract showing that his driver’s license was revoked at

the time of his arrest. Grogg then admitted that he had “some prior DUI or drunk driving

history.” At the sentencing hearing, the parties stipulated that Grogg had four prior DUI

violations. Therefore, we find that the evidence at sentencing, taken with the trial testimony, was

sufficient to elevate Grogg’s sentence to a Class 1 felony under the standard set in Apprendi.

¶ 22 B. Ineffective Assistance of Trial Counsel

6 ¶ 23 Alternatively, Grogg argues his trial counsel was ineffective for not filing a motion to

suppress the evidence obtained during his traffic stop. Claims of ineffective assistance of counsel

are reviewed under the two-prong test established in Strickland v. Washington, 466 U.S. 668

(1984). People v. Johnson, 2021 IL 126291, ¶ 52. To prevail on such a claim, a defendant must

show that counsel’s performance was both deficient and prejudicial. People v. Curry, 178 Ill. 2d

509, 518-19 (1997). To establish prejudice from a trial counsel’s failure to file a motion to

suppress, Grogg “must show a reasonable probability that: (1) the motion would have been

granted and (2) the outcome of the trial would have been different had the evidence been

suppressed.” People v. Givens, 237 Ill. 2d 311, 331 (2010) (internal quotation marks and citation

omitted).

¶ 24 Vehicle stops are subject to the fourth amendment’s reasonableness requirement. People

v. Hackett, 2012 IL 111781, ¶ 20. “As a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation has occurred.”

People v. McDonough, 239 Ill.2d 260, 267 (2012). However, as this court has observed, though

traffic stops are frequently supported by “probable cause” to believe that a traffic violation has

occurred, as differentiated from the “less exacting” standard of “reasonable, articulable

suspicion” that justifies an “investigative stop,” the latter will suffice for purposes of the fourth

amendment irrespective of whether the stop is supported by probable cause. Hackett, 2012 IL

111781, ¶ 20.

¶ 25 Grogg argues that there is a reasonable probability that a motion would have been granted

because Officer Mitchell had no basis to stop the van. Mitchell testified that he responded to a

dispatch reporting a blue van moving very slowly on a local street before pulling into a Wal-Mart

parking lot. He saw a van matching the description and “driving at a 90-degree angle to all the

7 parking lanes in the parking lot.” He stopped the van because he did not “want anybody to get

into an accident.” Grogg contends that this testimony does not support a reasonable suspicion

because it does not establish a traffic offense. But he ignores Mitchell’s additional testimony that

upon approaching the van, he smelled alcohol and saw a glass containing a liquid that Grogg

seemingly attempted to conceal.

¶ 26 A police officer may conduct a brief, investigatory stop of a person where the officer can

point to specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant the intrusion. Id. at ¶ 20. The officer’s belief “need not rise to the level

of suspicion required for probable cause.” Id. Here, the dispatch report of a slow-moving vehicle,

taken with Mitchell’s observations, does create a reasonable suspicion that the driver might be

under the influence of illegal substance. Therefore, we find no prejudice, and Grogg’s ineffective

assistance claim fails.

¶ 27 CONCLUSION

¶ 28 The judgment of the circuit court of Tazewell County is affirmed.

¶ 29 Affirmed.