People v. Merriweather

2024 IL App (5th) 230180-U

Opinion

NOTICE 2024 IL App (5th) 230180-U NOTICE Decision filed 09/18/24. The This order was filed under text of this decision may be NO. 5-23-0180 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) No. 21-CF-1145 ) MARCUS MERRIWEATHER, ) Honorable ) Adam M. Dill, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: We affirm the defendant’s conviction for aggravated driving under the influence where the defendant is estopped from challenging the claimed error on appeal.

¶2 The defendant, Marcus Merriweather, was convicted after a jury trial of driving under the

influence (DUI) of alcohol, which was elevated to aggravated DUI based on the defendant’s prior

DUI violations. On appeal, the defendant argues that the State failed to prove him guilty of

aggravated DUI, where it did not present any evidence at trial establishing that he had prior DUI

violations but proved the prior DUI violations at sentencing. The defendant requests this court

reduce his conviction to a Class A misdemeanor DUI. For the following reasons, we affirm the

judgment of the trial court of Champaign County.

1 ¶3 I. BACKGROUND

¶4 The relevant facts of this case are not in dispute. On September 24, 2021, the State charged

the defendant with three counts of aggravated DUI (counts I through III) in violation of section

11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2) (West 2020)) and one

count of driving while license suspended (count IV) in violation of section 6-303(a) of the Code

(id. § 6-303(a)). With respect to counts I through III, each count alleged the defendant violated

section 11-501(a)(2) of the Code (id. § 11-501(a)(2)) in that, on or about September 23, 2021, he

drove or was in actual physical control of a motor vehicle while under the influence of alcohol.

Count I further alleged the defendant’s unlawful conduct constituted an aggravated offense, which

subjected him to an elevated sentencing classification, a Class 2 felony, in that it occurred when

he had three prior DUI violations. Id. § 11-501(a)(2), (d)(1)(A). Count II alleged the defendant’s

unlawful conduct constituted an aggravated offense, which subjected him to an elevated sentencing

classification, a Class 4 felony, in that it occurred when his driving privileges were revoked for a

DUI violation. Id. § 11-501(a)(2), (d)(1)(G). Count III alleged the defendant’s unlawful conduct

constituted an aggravated offense, which subjected him to an elevated sentencing classification, a

Class 4 felony, in that it occurred at a time when the defendant knew or should have known that

the vehicle he was driving was not covered by a liability insurance policy. Id. § 11-501(a)(2),

(d)(1)(I). The State dismissed counts II through IV prior to trial.

¶5 The defendant filed a motion in limine on May 19, 2022, which requested, inter alia, to

prevent the State from introducing evidence of his three prior DUI violations at trial. The defendant

argued that his criminal history, including the prior DUIs, was substantially more prejudicial than

probative and requested the trial court to “prohibit the [S]tate from introducing evidence of the

defendant’s prior convictions or eliciting such evidence in their direct case, or on cross-

examination.” The State agreed to the defendant’s motion in part, agreeing to the defendant’s 2 request that the State refrain from introducing evidence of the defendant’s prior DUI violations at

trial, and filed a motion of intent to offer only the defendant’s two prior theft convictions for

purposes of impeachment. The trial court confirmed with the State that the defendant’s prior DUI

violations would only be offered during sentencing, and the defendant raised no objection.

¶6 The matter proceeded to a jury trial on May 24 and 25, 2022. On appeal, the defendant

does not dispute that the evidence was sufficient to prove him guilty of DUI, but rather argues that

the State was required to prove the aggravating factor of his three prior DUI violations at trial,

rather than at sentencing. Therefore, we only briefly discuss the facts of the underlying DUI. On

September 23, 2021, Chief Levingston, of the Tolono Police Department, responded to a call about

a truck striking a dumpster. Upon arrival, he discovered the defendant slumped over in the driver’s

seat of a truck. The defendant smelled of alcohol and had slurred speech. In the vehicle, Chief

Levingston noticed two opened bottles of vodka. After any potential medical issues were ruled

out, the defendant was taken to the jail, where he was given three opportunities to submit to a

breathalyzer test to determine his blood alcohol concentration. The defendant never provided a

sufficient breath sample, which was marked as a refusal by the breathalyzer operator.

¶7 The jury found the defendant guilty of DUI. A sentencing hearing was held on July 14,

2022. During the hearing, the parties confirmed the accuracy of the defendant’s presentence report,

which showed that the defendant had at least three prior DUI violations. The defendant was

sentenced to seven years’ imprisonment in the Illinois Department of Corrections for the Class 2

felony aggravated DUI, with a one-year term of mandatory supervised release. The defendant filed

a pro se late notice of appeal with this court on March 24, 2023, claiming that the late filing was

due to his lack of access to the necessary materials and procedures due to a COVID quarantine

restriction. The defendant’s motion to file a late notice of appeal was granted on May 8, 2023,

pursuant to Illinois Supreme Court Rule 606(c) (eff. Mar. 12, 2021). The State Appellate Defender 3 was appointed to represent the defendant on appeal and filed a brief in support of the defendant’s

notice of appeal.

¶8 II. ANALYSIS

¶9 On appeal, the defendant argues that the State failed to prove him guilty of aggravated DUI

beyond a reasonable doubt. The defendant does not contest that the State had proved he was in

physical control of a motor vehicle while he was under the influence of alcohol. Instead, the

defendant claims that the structure of the aggravated DUI statute indicates a clear legislative intent

to make prior violations of DUI an element of the offense of aggravated DUI. Thus, the defendant

argues that the State was required, but failed, to prove his prior DUI violations to the trier of fact

beyond a reasonable doubt. Where the State failed to do so, the defendant argues that he could not

be proven guilty of aggravated DUI, and thus, his conviction should be reduced to a Class A

misdemeanor DUI.

¶ 10 The State responds that the defendant forfeited this argument on appeal by failing to raise

it at trial or in his posttrial motions, and that the defendant cannot prove plain error. Further, the

State contends that the defendant invited what he now asserts as error. The State argues,

alternatively, that prior DUI violations are a sentencing enhancement under the statute, and as

such, the State is not required to present evidence of the defendant’s prior DUI violations at trial.

¶ 11 The defendant concedes that he did not raise this issue at trial or in any posttrial motion;

however, he argues that an argument relating to the sufficiency of the evidence at trial cannot be

forfeited. See People v. Walker, 7 Ill. 2d 158, 160 (1955) (arguments that the State failed to prove

defendant guilty beyond a reasonable doubt are not subject to the normal rules of forfeiture and

may be raised for the first time on appeal). When presented with a challenge to the sufficiency of

the evidence, our inquiry is “whether, after viewing the evidence in the light most favorable to the

4 prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” People v. Jackson, 2020 IL 124112, ¶ 64.

¶ 12 In this case it is undisputed that the State did not present any evidence at trial to establish

that the defendant had prior DUI violations at the time he committed the offense. The dispute,

instead, concerns whether the existence of the prior DUI violations were essential elements of the

charged offenses, which the State was required to prove at trial, as opposed to proving at

sentencing.

¶ 13 The defendant was convicted of aggravated DUI under section 11-501(a)(2), and the

offense was aggravated pursuant to section 11-501(d)(1)(A) of the Code. 625 ILCS 5/11-501(a)(2),

(d)(1)(A) (West 2020). Section 11-501(a)(2) states, in pertinent part: “A person shall not drive or

be in actual physical control of any vehicle within this State while: *** under the influence of

alcohol[.]” Id. § 11-501(a)(2). The subsection for aggravated DUI relevant to the defendant,

section 11-501(d)(1)(A), reads as follows:

“(d) Aggravated driving under the influence of alcohol, other drug or drugs, or

intoxicating compound or compounds, or any combination thereof.

(1) Every person convicted of committing a violation of this Section shall

be guilty of aggravated driving under the influence of alcohol, other drug or drugs,

or intoxicating compound or compounds, or any combination thereof if:

(A) the person committed a violation of subsection (a) or a similar

provision for the third or subsequent time[.]” Id. § 11-501(d)(1)(A).

¶ 14 The defendant acknowledges that our supreme court and several other districts of this court

have found that evidence of prior DUI violations only need to be proven at sentencing as an

enhancement factor, not as an element of aggravated DUI to be proven to the trier of fact. People

v. May, 2021 IL App (4th) 190893, ¶ 34. In People v. Homme, the defendant made the same 5 arguments that the defendant makes in the present case, relying on People v. Zimmerman, 239 Ill.

2d 491 (2010), People v. Martin, 2011 IL 109102, People v. Mumaugh, 2018 IL App (3d) 140961,

and People ex rel. Glasgow v. Carlson, 2016 IL 120544. People v. Homme, 2022 IL App (4th)

190490-U, ¶¶ 45-55. The Homme court rejected the defendant’s position that the State was

required to present evidence at trial establishing his prior DUI violations to prove him guilty of

aggravated DUI. See id. ¶ 55. The defendant asks this court to depart from the line of cases holding

that aggravated DUI and DUI are not separate offense with separate elements. He additionally asks

this court to determine that May, 2021 IL App (4th) 190893, and People v. Robinson, 2019 IL App

(1st) 170503-U, were wrongly decided and invites this court to compare the aggravated DUI statute

to the aggravated robbery statute, where the simple and aggravated offenses are included in the

same section.

¶ 15 In the present case, however, the trial and sentencing hearing proceeded in a fashion

consistent with the defendant’s own request. As such, we find that the defendant is estopped from

any claimed error regarding his prior DUI convictions under the doctrine of invited error. The

doctrine of invited error is a form of procedural default or estoppel. People v. Liekis, 2012 IL App

(2d) 100774, ¶ 24 (citing Gaffney v. Board of Trustees of the Orlando Fire Protection District,

2012 IL 110012, ¶ 33). The doctrine provides that a party may not request that the court proceed

in one manner and then argue on appeal that the requested action resulted in error. Id. It would be

unfair to grant a party relief based on error that he introduced into the proceedings. Id.

¶ 16 The defendant argues that the doctrine of invited error does not apply to the sufficiency of

the evidence arguments raised on direct appeal. He cites to People v. Wilson, 215 Ill. App. 3d 966,

970 (1991), for the proposition that failure to prove a material allegation of an indictment beyond

a reasonable doubt may be raised for the first time upon review. Wilson, however, addresses

forfeiture for failure to raise an issue by objection or in a posttrial motion, not invited error. Our 6 courts have applied the invited error rule to aggravated DUI cases. See People v. Bowman, 221 Ill.

App. 3d 663, 666 (1991) (holding that the defendant agreed to introduce the prior convictions at

sentencing only and, as such, is estopped from asserting it as error). Further, even where the State

is required to prove the defendant’s prior conviction at trial, as in the case of retail theft, we have

held that, where the defendant acquiesces to the State’s request to prove a prior conviction at

sentencing, “fairness requires application of the waiver rule.” See People v. Rice, 137 Ill. App. 3d

285, 286-87 (1985).

¶ 17 In People v. Benson, 2022 IL App (2d) 200038-U, the defendant filed a motion in limine

to bar the State from introducing evidence of the aggravating factor, that the defendant committed

the offense of DUI while his license was suspended based on a violation of section 11-501.1(a) of

the Code. Id. ¶ 27. The motion requested that “ ‘the State be barred from introducing evidence of

the basis for Defendant’s license being suspended or revoked. That information is irrelevant and

more prejudicial than probative.’ ” Id. ¶ 5. Thus, the language of the request in the motion in limine

resulted in an expressly invited error. Id. ¶¶ 27-29.

¶ 18 In the present case, the defendant filed a motion in limine to exclude the use of the

defendant’s prior DUI convictions at trial. The motion specifically stated: “[t]hat the Defendant

has the following prior convictions,” and listed, inter alia, the defendant’s three prior DUI

violations. The defendant’s motion requested that the State be prohibited from using those

violations for impeachment purposes, and further requested that the trial court “prohibit the [S]tate

from introducing evidence of the defendant’s prior convictions or eliciting such evidence in their

direct case, or on cross-examination of the Defendant should the Defendant testify.” This request

shows the defendant intended to have the State barred from introducing evidence of his prior

convictions completely, not just for impeachment purposes. The defendant expressly invited the

error through his motion in limine. 7 ¶ 19 The defendant additionally acquiesced the error by not objecting to the proceedings. A

defendant may not observe irregular proceedings without objection and afterwards seek relief on

those same irregularities. People v. Ford, 19 Ill. 2d 466, 478-79 (1960). A party may not claim

error in the procedure employed by the court if the party willingly participated in that procedure

without objection. People v. McBride, 2022 IL App (4th) 220301, ¶ 31 (citing People v. Schmitt,

131 Ill. 2d 128, 137 (1989)). In People v. Bowman, the parties agreed that the aggravating factor

in the defendant’s enhanced driving while license revoked charge, that the defendant’s revocation

rested upon a prior conviction for DUI, would only be used for sentencing purposes and not

presented to the jury. Bowman, 221 Ill. App. 3d at 665-66. As a result, the Bowman court

commented that the defendant was estopped from asserting the error on appeal, as he invited or

agreed to the procedure. Id. Similarly in People v. Benson, defense counsel also did not object to

the trial court stating that the aggravating factor would only be used for sentencing purposes, and

this resulted in acquiescence of the claimed error. Benson, 2022 IL App (2d) 200038-U, ¶ 27.

¶ 20 In this matter, during the hearing on the motion in limine, the trial court noted the State’s

motion for intent to offer, filed May 23, 2022, which indicated that the State intended to offer two

theft cases for purposes of impeaching the defendant, should he choose to testify. The trial court

indicated that based on the motion for intent, it was evident that the State was not objecting to the

motion in limine from the defendant as to the defendant’s prior DUI violations. When asked by

the trial court if that was accurate, the State stated: “Yes, Your Honor.” The trial court

acknowledged that the State confessed the defendant’s motion in limine as to the DUI cases,

leaving only two other cases in dispute. Defense counsel agreed that was an accurate statement of

the procedural posture. The trial court then confirmed with the State that it intended to prove the

prior DUI violations at sentencing, to which defense counsel raised no objection. The trial court

stated as follows: 8 “THE COURT: *** well, certainly, the prior DUI’s, if we reach sentencing, that’s

something you would prove up at sentencing; correct?

[THE STATE]: Correct.”

The jury trial then proceeded in accord with the agreed-upon procedure, and after a finding of

guilty to the DUI charge, the State proved the prior DUI offences at sentencing to enhance the

defendant’s DUI from a misdemeanor to a felony. The defendant did not object to this procedure

during the hearing on his motion in limine and invited the claimed error via acquiescence.

¶ 21 Accordingly, because the defendant expressly invited and acquiesced the claimed error, he

is estopped from challenging it on appeal. Further, we will not depart from the long list of cases

establishing that prior DUI violations are sentencing enhancements and not elements of the

offense.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, the defendant is estopped from arguing the alleged claim and we

affirm the defendant’s felony conviction of aggravated driving under the influence.

¶ 24 Affirmed.