2014 IL App (1st) 130512 No. 1-13-0152 Opinion filed July 23, 2014 Third Division _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 12 CR 9456 ) JAMES MORRIS, ) ) The Honorable Defendant-Appellant. ) Kevin M. Sheehan, ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.
OPINION
¶1 At around two o’clock in the morning, a Chicago police officer found defendant James
Morris passed out in the front seat of a parked car, the ignition off, the driver’s side door open,
and keys in his right hand. Morris was charged with multiple counts of "actual physical control"
of the car while under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2012)) and 1-13-0152
felony driving with a suspended or revoked driver's license (625 ILCS 5/6-303(a) (West 2012)).
Convicted after a bench trial, Morris received eight years in prison.
¶2 Morris raises three grounds for reversing his convictions: (1) the State failed to prove
beyond a reasonable doubt that he was in actual physical control of the vehicle or under the
influence of alcohol; (2) the phrase "actual physical control" in sections 11-501(a)(2) and 5/6-
303(a) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a) (2), 6-303(a) (West 2012)) is
unconstitutionally vague and ambiguous as applied to him; and (3) his counsel's performance
denied him his constitutional right to effective counsel. Morris also asserts his status as a Class
X felon was improper, and asks for resentencing.
¶3 We affirm Morris's conviction and sentence. First, the State proved beyond a reasonable
doubt that Morris was under the influence of alcohol and had "actual physical control" of the car
under the factors our courts consider and neither Morris's intent nor the fact that the car was
parked and the ignition off defines or explains actual physical control. In addition, regarding
"actual physical control" as unconstitutionally vague and ambiguous as applied to Morris, he has
failed to meet his burden of rebutting the presumption of constitutionality and establishing a
constitutional violation. Next, none of the arguments that Morris advances in support of his
ineffective assistance of counsel claims satisfy the two-part test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Finally, the trial court properly sentenced Morris and his
arguments to the contrary misapprehend his criminal record.
¶4 BACKGROUND
¶5 On April 22, 2012, a Chicago police officer found defendant, James Morris, passed out in
the driver's seat of a parked vehicle with keys in his hand. Morris, who smelled of alcohol, could
not produce any identification or an insurance card. A field sobriety test conducted at the police
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station indicated Morris was impaired. Consequently, he was arrested and charged by indictment
with 5 counts of aggravated driving under the influence of alcohol (625 ILCS 5/11-501(a)(2)
(West 2012)) and 14 counts of felony driving while driver's license is suspended or revoked (625
ILCS 5/6-303(a) (West 2012)). Before trial, the State elected to proceed on the first seven counts
of the indictment—one count of aggravated driving under the influence of alcohol and six counts
of felony driving while driver's license is suspended or revoked—and dismissed the remaining
counts.
¶6 The evidence established that on April 22, 2012, at about 1:55 a.m., Chicago police
officer Rick Nigro, while responding to a call of shots fired in the area of the 4800 block of
North Kostner, came upon a poorly parked car with its driver's door open. On investigation,
Nigro saw Morris slumped over the steering wheel, passed out. Nigro testified he did not see
Morris driving the car; in Morris's right hand were the car keys. A bag of groceries sat on the
curb. Nigro woke Morris up and noticed Morris had bloodshot eyes and reeked of alcohol.
Morris could not produce identification or proof of insurance. Nigro, an 18-year veteran of the
department who had made dozens of arrests for driving under the influence, considered Morris to
be highly intoxicated and called another police officer to take Morris to the police station.
¶7 At the station, officer John Kaporis met with Morris. Kaporis testified he has been a
certified Breathalyzer technician for 10 years and gets recertified every 3 years. Kaporis
performed only the horizontal gaze nystagmus sobriety test (HGN), because Morris told him he
had problems with his knees, and Kaporis did not want to exacerbate the problem. Kaporis
explained that the HGN test is one of three standardized field sobriety tests the police conduct on
DUI suspects. An officer administers the test by holding a stimulus, like a pen, about 15 inches
from the subject's face. The subject focuses on the stimulus and follows it with his or her eyes as
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it is moved slowly to the side and back to the center. The test checks for smooth, continuous
movement of the eyes and nystagmus (involuntary jerkiness of the eyes, a sign of impairment).
Kaporis performed three sweeps on Morris and observed "distinct nystagmus, *** onset
nystagmus, *** involuntary jerkiness of the eyes on all three and vertical nystagmus as well."
After administering the HGN test, Kaporis concluded Morris showed signs of impairment.
Kaporis asked Morris if he wanted to take a Breathalyzer test. Morris refused. Kaporis noticed
Morris had red, bloodshot eyes and that his breath emitted a strong odor of alcohol.
¶8 The parties stipulated to two prior DUI convictions—one in Chicago in 2010 and another
from Wisconsin in 1987. Defense counsel moved for a directed finding, which the trial court
denied.
¶9 After the State rested, Morris called one witness, Jackie Summerlin, who testified that she
and Morris were apartment-sitting for a friend that day, and at about 1:30 a.m., she drove her car
to the grocery store, stopped for gas and groceries, and went to the liquor store and bought two
six-packs of beer and a small bottle of whiskey. On returning to the apartment, Summerlin
parked about a block away, took out some beer and the bottle of whiskey and went upstairs. She
asked Morris to go out to the car for the rest of the items, which she said were in the front
passenger seat. Summerlin said she gave Morris the keys and went to bed.
¶ 10 Summerlin testified she woke up a few hours later and realized Morris and the car were
gone. She said she did not call the police because she did not want to get Morris in any trouble if
he had taken the car. She later learned that Morris had been arrested and her car impounded.
Summerlin admitted that before she went to the liquor store, she had been drinking. A Cook
County investigator went to speak with Summerlin, but, after the investigator told her she did not
have to speak to him if she did not want to, she refused to answer any questions.
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¶ 11 The trial court found Morris guilty of aggravated driving under the influence of alcohol
and felony driving on a suspended or revoked license. In reaching its verdict, the trial court
reviewed the evidence, noting that the HGN test indicated impairment, both police officers
thought Morris was under the influence of alcohol, Morris refused a breathalyzer test, and had
two prior DUI convictions. As for defendant's case, the court stated, "Based on the totality of the
circumstances, the totality of the evidence, the court does find a bit of bias on Ms. Summerland's
[sic] part ***. Some of her testimony strains credibility: Not calling the police when the person
she sent down to get the remaining groceries didn't come back. She fell asleep or passed out.
She admits drinking. The court puts little credence on her testimony for the foregoing
reasoning." The court concluded the State proved the elements of aggravated DUI and driving
on a suspended or revoked license beyond a reasonable doubt.
¶ 12 Morris filed a motion for a new trial arguing, in part, that he was not proven guilty
beyond a reasonable doubt because the State failed to present credible evidence that he drove the
vehicle or had the intention to drive it. The trial court denied the motion. During the sentencing
hearing, the circuit court determined Morris was Class X eligible based on his prior Class 2
felony convictions and sentenced him to eight years in prison. Morris filed a motion to
reconsider his sentence, which the trial court denied. That same day, Morris filed a notice of
appeal.
¶ 13 ANALYSIS
¶ 14 Evidence of Guilt Beyond a Reasonable Doubt
¶ 15 Morris first contends the State failed to prove beyond a reasonable doubt that he was in
"actual physical control" of a vehicle while under the influence of alcohol. Morris does not
contend the State failed to prove beyond a reasonable doubt that he was driving or "in actual
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physical control" of a motor vehicle at a time when his driver's license was revoked or suspended
as prohibited by section 6-303(a) of the Code (625 ILCS 5/6-303(a) (West 2012)), so that part of
the conviction will not be addressed here.
¶ 16 When reviewing a conviction to determine whether the prosecution has satisfied the
reasonable doubt standard, the court must determine whether, after viewing the evidence in the
light most favorable to the State, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 279 (2004). “In
conducting this inquiry, the reviewing court must not retry the defendant.” Id. This standard
recognizes the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence and to draw reasonable inferences from it. People v. Campbell, 146 Ill. 2d 363, 375
(1992). A criminal conviction will be reversed only if the evidence is so unsatisfactory as to
raise a reasonable doubt of defendant's guilt. Id. at 375.
¶ 17 Section 11-501(a) (2) of the Code provides that an individual “shall not drive or be in
actual physical control of any vehicle within this State while under the influence of alcohol.”
625 ILCS 5/11-501(a)(2) (West 2012). Accordingly, the prosecution was required to establish
that Morris was "in actual physical control” of the car and intoxicated. See People v. Long, 316
Ill. App. 3d 919, 926 (2000). "A person need not drive to be in actual physical control of a
vehicle, nor is the person's intent to put the car in motion relevant to the determination of actual
physical control.” City of Naperville v. Watson, 175 Ill. 2d 399, 402 (1997). The issue of actual
physical control is determined on a case-by-case basis, giving consideration to whether the
defendant: (1) possessed the ignition key; (2) had the physical capability to operate the vehicle;
(3) was sitting in the driver's seat; and (4) was alone with the doors locked. People v. Slinkard,
362 Ill. App. 3d 855, 859 (2005). These factors provide a guideline to determine whether the
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defendant had actual physical control of the vehicle; the list is neither exhaustive, nor is the
absence of one individual factor controlling. Id. at 859.
¶ 18 Under the factors, the evidence at trial established that Morris was in "actual physical
control" of the vehicle. First, Morris does not dispute that Officer Nigro found him in the
driver's seat of the vehicle, slumped over the steering wheel. Just because a defendant is asleep
in a vehicle does not mean he or she is not in actual physical control of it. Watson, 175 Ill. 2d at
402 (defendant found asleep in parked vehicle with engine running satisfies actual physical
control); People v. Brown, 175 Ill. App. 3d 676, 677 (1988) (evidence defendant in driver's seat
asleep and slumped over steering wheel with keys in ignition but engine not running sufficient to
establish actual physical control of vehicle for purposes of driving under the influence statute).
And Morris acknowledges he was holding keys in his right hand. (His contention that the State
failed to prove he was capable of starting the car with those keys, which he suggests could have
been apartment keys, contradicts the testimony of his own witness, Morris's friend, Summerlin,
who said she gave Morris the car keys so he could retrieve the groceries she left in the car.)
¶ 19 While it is true, as Morris asserts, that there was no testimony he was alone in the car,
there also was no evidence anyone else was in the car or even in the vicinity. It is also true that
Nigro testified that when he approached the car he saw the driver's side door open. Morris could
easily have woken up, closed the door, and driven away. Hence, looking at the evidence in the
light most favorable to the State, a rational trier of fact could find that Morris, alone in the
driver's seat with keys in his right hand, was in actual physical control of the car.
¶ 20 Morris next contends the State failed to establish beyond a reasonable doubt that he was
under the influence of alcohol. “A person is under the influence of alcohol when, as a result of
drinking any amount of alcohol, his mental or physical faculties are so impaired as to reduce his
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ability to think and act with ordinary care.” Illinois Pattern Jury Instructions, Criminal, No.
23.29 (4th ed. 2000). Intoxication is a question for the trier of fact to resolve on the basis of
having assessed the credibility of the witnesses and the sufficiency of the evidence. People v.
Janik, 127 Ill. 2d 390, 401 (1989). To find the defendant guilty of driving under the influence,
the prosecution must establish that the defendant was under the influence of a drug or alcohol to
a degree that renders him or her incapable of driving safely. People v. Workman, 312 Ill. App.
3d 305, 310 (2000). Circumstantial evidence alone may suffice to prove a defendant guilty of
DUI. People v. Diaz, 377 Ill. App. 3d 339, 345 (2007). Where the arresting officer provides
credible testimony, scientific proof of intoxication is unnecessary. People v. Gordon, 378 Ill.
App. 3d 626, 632 (2007). Specifically, testimony that a defendant's breath smelled of alcohol
and his or her eyes were glassy and bloodshot is relevant and admissible evidence in a DUI
prosecution. People v. Elliott, 337 Ill. App. 3d 275, 281 (2003). A defendant's refusal to submit
to chemical testing shows a consciousness of guilt. People v. Garriott, 253 Ill. App. 3d 1048,
1052 (1993) (refusal to submit to Breathalyzer test is relevant as circumstantial evidence of
defendant's consciousness of guilt).
¶ 21 Officer Nigro testified that when talking to Morris he noticed Morris's bloodshot eyes and
"an extremely strong odor of alcohol beverage coming from him." Nigro further testified that in
his 18 years as a police officer, he had made dozens of DUI arrests and, based on his professional
and personal experience, he thought Morris was under the influence of alcohol.
¶ 22 Officer Kaporis testified to the bloodshot eyes and strong smell of alcohol on Morris's
breath, too. Kaporis, who performed an HGN test, testified that Morris showed signs of
impairment. But, according to Morris, the State failed to lay a proper foundation for Kaporis's
testimony about the results of the HGN test, including evidence of Kaporis's training to be a
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certified administer of the HGN tests in accordance with standards established by the National
Highway Traffic Safety Administration (NHTSA) or that he performed the test on Morris in
accordance with NHTSA protocol. We disagree. Kaporis told the trial judge he was trained to
conduct field sobriety tests and that the HGN test represented one of the three standard field
sobriety tests. Further, even in the absence of the HGN tests results, given the credible testimony
from two police officers, along with Morris's refusal to take a Breathalyzer test, which can be
evidence of consciousness of guilt, the scientific proof of intoxication was unnecessary to sustain
Morris's conviction for driving under the influence of alcohol. People v. Gordon, 378 Ill. App.
3d 626, 632 (2007).
¶ 23 Hence, the trial court did not err in finding Morris guilty of aggravated driving under the
influence.
¶ 24 "Actual Physical Control"
¶ 25 Morris argues the phrase "actual physical control" in sections 11-501(a) and 6-303(a) of
the Code (625 ILCS 5/11-501(a), 6-303 (West 2012)) is unconstitutionally vague and ambiguous
as applied to him. Specifically, Morris insists the Code does not provide sufficient notice as to
what constitutes actual physical control and fails to provide a reasonable standard by which an
ordinary person can gauge or regulate his or her future conduct. Although Morris did not raise
this issue before the trial court, a constitutional challenge to a statute may be raised at any time
and we will consider it. See People v. Bryant, 128 Ill. 2d 448, 454 (1989).
¶ 26 Courts presume a statute is constitutional. People v. Cornelius, 213 Ill. 2d 178, 189
(2004). The party challenging the validity of a statute bears the burden of rebutting the
presumption and establishing a constitutional violation. Id. “Moreover, ‘ “it is our duty to
construe acts of the legislature so as to uphold their constitutionality and validity if it can
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reasonably be done, and, further, that if their construction is doubtful, the doubt will be resolved
in favor of the validity of the law attacked.” [Citations.]’ ” Davis v. Brown, 221 Ill. 2d 435, 442
(2006) (quoting People v. Inghram, 118 Ill. 2d 140, 146 (1987), quoting McKenzie v. Johnson,
98 Ill. 2d 87, 103 (1983)). We review challenges to a statute's constitutionality de novo. People
v. Campbell, 2014 IL App (1st) 112926, ¶ 54.
¶ 27 A vagueness challenge is rooted in due process and examines whether a statute “ ‘give[s]
[a] person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that
he may act accordingly.’ ” (Internal quotation marks omitted.) People v. Greco, 204 Ill. 2d 400,
416 (2003). A statute may be unconstitutionally vague if its “terms are so ill-defined that the
ultimate decision as to [its] meaning rests on the opinions and whims of the trier of fact rather
than any objective criteria or facts.” (Internal quotation marks.) People v. Boclair, 202 Ill. 2d 89,
103 (2002). Vagueness challenges to statutes that do not involve the first amendment, are
examined in light of the particular facts of the case. Greco, 204 Ill. 2d at 416. In other words,
the party challenging the statute must show the statute did not provide effective notice that his or
her conduct was prohibited. People v. Jihan, 127 Ill. 2d 379, 385 (1989).
¶ 28 In Illinois, a vehicle need not be moving or the engine running for the driver to be in
actual physical control for purposes of driving under the influence. See Watson, 175 Ill. 2d 399
(defendant found sleeping across front seat with engine running was in actual physical control);
People v. Davis, 205 Ill. App. 3d 431, 435 (1990) (defendant found sleeping in backseat with
keys in ignition); People v. Cummings, 176 Ill. App. 3d 293, 295 (1988) (defendant found
sleeping in driver's seat with car engine running). As the supreme court noted in Watson, this is
in line with the legislative intent of encouraging those who plan to drink to arrange lodging or
safe transportation home in advance so that a person who embarks on an evening of drinking
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with the intention of sleeping in a car does not make the actual decision after his or her judgment
and alertness have been impaired. Watson, 175 Ill. 2d at 405.
¶ 29 Morris contends that he could not reasonably know that he could be found in actual
physical control of the car when passed out in the driver's seat with the keys in his hand and the
driver's side door open. We disagree. Although Morris may have not actually known that his
conduct constituted actual physical control, ignorance of the law has long been rejected as a
defense. People v. Hollins, 2012 IL 112754, ¶ 34. The case law establishes that to prevent
someone from making the decision to drive a vehicle while lacking clarity of thought due to
alcohol consumption, a defendant will be deemed to be in actual physical control when he or she
"is behind the steering wheel in the driver's seat with the ignition key and physically capable of
starting the engine and moving the vehicle." People v. Heimann, 142 Ill. App. 3d 197, 199
(1986). Although Morris may not have been aware that his conduct might be illegal, that alone
does not render the statute unconstitutionally vague.
¶ 30 Ineffective Assistance of Counsel
¶ 31 Morris contends ineffective assistance of counsel due to his attorney's failure (1) to object
to the admission of the HGN test; (2) to understand applicable law or form a coherent defense;
(3) to hold the State to its burden of proof regarding his prior DUI convictions; (4) to challenge a
witness's inconsistent testimony; and (5) to put Morrison the stand in his defense.
¶ 32 To prove ineffective assistance of counsel, the defendant must allege facts showing
counsel's representation was both objectively unreasonable and counsel's deficiency prejudiced
him. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill. 2d 504,
525 (1984). The defendant bears the burden of demonstrating he received ineffective assistance
of counsel. People v. Burks, 343 Ill. App. 3d 765, 775 (2003). The deficiency prong requires
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showing his counsel's performance was so deficient as objectively measured against prevailing
professional norms that counsel was "not functioning as the 'counsel' guaranteed by the sixth
amendment." People v. Easley, 192 Ill. 2d 307, 317 (2000). "A decision that involves a matter
of trial strategy typically will not sustain a claim of ineffective representation." (Internal
quotation marks omitted.) People v. Redmond, 357 Ill. App. 3d 256, 260 (2005). A defendant
must overcome a strong presumption that counsel's conduct constituted sound trial strategy and
fell within the wide range of reasonable professional assistance. People v. Jackson, 205 Ill. 2d
247, 259 (2001). Further, in determining the adequacy of counsel's representation, “a reviewing
court will not consider isolated instances of misconduct, but rather the totality of the
circumstances.” People v. Lopez, 371 Ill. App. 3d 920, 929 (2007).
¶ 33 To establish prejudice, the defendant must show that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceedings would have been
different.” (Internal quotation marks omitted.) People v. King, 316 Ill. App. 3d 901, 913 (2000).
A reasonable probability sufficiently undermines confidence in the outcome. Id. While the
defendant must satisfy both prongs to prevail, the reviewing court may analyze the facts under
either prong first, and if it deems that the standard for that prong is not satisfied, it need not
consider the other prong. People v. Irvine, 379 Ill. App. 3d 116, 129-30 (2008).
¶ 34 Morris first asserts his trial counsel provided ineffective assistance by failing to challenge
the foundation for the State's admission of the HGN field sobriety test. Although Kaporis
testified he is certified to administer field sobriety tests, the record does not reveal testimony that
he was trained in administering the HGN test in accordance with the NHTSA manual or that he
administered the test according to those guidelines. Morris, however, did not object at trial so
the State had no opportunity to lay a proper foundation. But, even if we assume the State would
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have failed to do so, any error was harmless under the second prong. Morris has not met his
burden because even if the HGN test had been excluded for lack of proper foundation, other
evidence supported defendant's conviction for DUI. Thus any error in admitting the HGN test
was harmless. See People v. McKown, 236 Ill. 2d 278, 311 (2010) (“Error will be deemed
harmless and a new trial unnecessary when 'the competent evidence in the record establishes the
defendant's guilt beyond a reasonable doubt and it can be concluded that retrial without the
erroneous admission of the challenged evidence would produce no different result.' " (quoting
People v. Arman, 131 Ill. 2d 115, 124 (1989)).
¶ 35 As explained earlier, the State produced enough evidence even without the HGN test
results to convict Morris of driving under the influence. A court may rely on the observations of
a trained police officer in making a judgment about the intoxication level of a defendant.
Officers Nigro and Kaporis, who had many years of experience, testified that Morris had a strong
odor of alcohol and bloodshot eyes and they thought he was impaired. In addition, Morris
refused to take a Breathalyzer, which can be evidence of consciousness of guilt. People v. Jones,
214 Ill. 2d 182, 201-02 (2005). This evidence was more than sufficient to find him guilty
beyond a reasonable doubt of aggravated DUI. A new trial without evidence of HGN testing
would not produce a different result. See also People v. Graves, 2012 IL App (4th) 110536, ¶¶
32-33 (concluding that even if evidence of HGN testing was excluded for lack of foundation,
evidence against defendant overwhelmingly proved him guilty beyond a reasonable doubt of
aggravated DUI).
¶ 36 Morris next asserts his trial counsel was ineffective for failing to understand the
applicable law or form a coherent defense. Specifically, Morris contends his attorney did not
understand the distinction between driving a vehicle and being in actual physical control of a
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vehicle, both of which are prohibited under the Illinois Vehicle Code. Thus, maintains Morris,
his attorney failed to argue he was not in actual physical control of the vehicle because he was
sleeping, the driver's side door was open, and the keys in his hand were not in the ignition or
even keys for that vehicle's ignition.
¶ 37 "A weak or insufficient defense does not indicate ineffectiveness of counsel in a case
where a defendant has no defense." (Internal quotation marks omitted.) People v. Nieves, 192 Ill.
2d 487, 496 (2002). As noted, the State presented evidence showing Morris was in actual
physical control of the vehicle and was under the influence of alcohol. Thus, it appears Morris's
trial counsel hoped to show Jackie Summerlin, Morris's friend, drove and parked the vehicle
slightly askew and that Morris went to the vehicle to pick up groceries only and never drove the
car or intended to do so. His lawyer presented testimony from Summerlin that she asked Morris
to get the groceries from the car and established through cross-examination of Nigro that the bag
of groceries was found on the curb on the driver's side of the vehicle. Although as Morris
asserts, intent to drive is not necessary to show actual physical control, his attorney reasonably
determined that his best defense was to argue that the legislature did not intend for the Code to
punish someone like Morris who did not drive or ever have the intent to drive but simply went to
get something out of a vehicle. This creative argument does not constitute deficient
performance, where defense counsel cross-examined the State's witnesses, presented a witness in
support of his defense, and vigorously argued that Morris should be found “not guilty.”
¶ 38 Moreover, we cannot find that a reasonable probability exists that had counsel not
pursued this strategy Morris would have been acquitted. The State presented sufficient evidence
that Morris was in actual physical control of the vehicle and that he was intoxicated. Thus, he
failed to establish any prejudice by the strategy his attorney pursued.
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¶ 39 Morris contends his trial counsel should not have stipulated to his two prior DUI
convictions—one in Illinois and one in Wisconsin—which allowed the trial court to punish him
for a Class 2 felony rather than as a misdemeanor. Morris asserts the only evidence the State
was able to provide the court regarding the Wisconsin conviction was a ticket number and an
approximate date of the violation. He contends the State did not have a certified copy or any
other record of the conviction and his attorney should have forced the State to prove up the
conviction. Because the State would not have been able to do so, Morris says he was prejudiced
by a longer prison sentence as a Class 2 felon.
¶ 40 The mere use of a stipulation does not demonstrate ineffective assistance of counsel.
People v. Smith, 326 Ill. App. 3d 831, 851 (2001). An incorrect or erroneous stipulation may
establish the first prong of the Strickland test. See People v. Coleman, 301 Ill. App. 3d 37, 47
(1998). But to establish that counsel was ineffective for entering into a stipulation, a defendant
must also satisfy the prejudice prong of Strickland and overcome the strong presumption that
counsel's actions arose from trial strategy. Id. at 47.
¶ 41 Trial counsel's stipulations were not incorrect or erroneous. Trial counsel may have
considered the stipulations to be preferable to the possibility of detailed description of the
circumstances of Morris's two DUI convictions. Moreover, Morris's suggestion that because the
State only provided the ticket number and an approximate date of the Wisconsin conviction, it
would not have been able to provide a certified copy of the conviction into evidence is
conjecture. At the close of the State's case, the trial court adjourned to give the State time to
provide the court with the case number of Morris's Wisconsin conviction before the stipulations
could be entered. When the case resumed almost three months later, the court only asked the
State for the ticket number and date of the Wisconsin conviction. That does not mean the State
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did not have a certified copy or other evidence of Morris's conviction. Thus, because Morris
cannot overcome the strong presumption that the stipulation was a reasonable part of counsel's
trial strategy, he fails to establish his counsel's performance was deficient.
¶ 42 Morris next contends his trial counsel was ineffective for failing to impeach officer Nigro
about his supposed inconsistent testimony regarding the location of the grocery bag and key at
the time of the arrest. Morris asserts Nigro testified that Morris was holding keys in his right
hand and on cross-examination he testified the grocery bag was found on the curb on the driver's
side of the car. But the arrest report did not mention the keys and stated that the grocery bag was
"laying on the street." Morris suggests that cross-examination on these two issues may have cast
doubt on Nigro's credibility as well as essential factor in the crime—the location of the keys.
Again, we disagree.
¶ 43 First, it is evident from the record that defense counsel wanted to establish the existence
of the grocery bag to corroborate Summerlin's testimony that she asked Morris to go retrieve
groceries from the car. Cross-examining Nigro about the exact location of the bag would have
done nothing to support that theory. Thus, defense counsel's failure neither constitutes deficient
performance nor prejudice to defendant.
¶ 44 Morris also fails to establish that his trial counsel was ineffective for failing to cross-
examine Nigro about the lack of detail in the arrest report regarding the location of the keys. In
People v. Vasquez, 368 Ill. App. 3d 241 (2006), the defendant was convicted of aggravated
unlawful use of a weapon by a felon after he was observed by a police officer picking up a gun
and keeping it. Id. at 245. The defendant asserted ineffective assistance because his counsel did
not question the police officers about missing details in the arrest report. Id. at 256. The arrest
report did not include details regarding the officer's observation that someone else gave the
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defendant the gun, one of the officers asking defendant to "come here" and a struggle ensuing
between an officer and defendant. Id. The appellate court disagreed and stated that the lack of
detail "did not render the officers' testimony inconsistent, and defense counsel was not
ineffective for failing to impeach the officers about the absent details." Id.
¶ 45 Similarly, the lack of details in the arrest report about the keys was not a basis for
impeaching the officers. Further, part of defense counsel's strategy, as evidenced by
Summerlin's testimony, was to explain why Morris went to the car—not to drive anywhere but to
pick up the groceries Summerlin left in the car. Cross-examining Nigro as to that missing detail
on the arrest report would not have helped to support that theory of the case. Thus, neither prong
of the Strickland test has been satisfied.
¶ 46 Lastly, Morris argues his counsel improperly precluded him from testifying on his own
behalf. He asserts he should have taken the stand because other than officer Nigro, Morris was
the only person at the scene, and thus, presumably could have offered a different version of the
events that evening. He also, he asserts, could have corroborated the testimony of Summerlin
that the only reason he went to the car was to retrieve groceries.
¶ 47 The decision whether to testify on one's own behalf belongs to the defendant (People v.
Thompkins, 161 Ill. 2d 148, 177 (1994)), although this decision should be made with the advice
of counsel. People v. Smith, 176 Ill. 2d 217, 235 (1997). Advice not to testify is a matter of trial
strategy and does not constitute ineffective assistance of counsel unless evidence suggests that
counsel refused to allow the defendant to testify. People v. DeRossett, 262 Ill. App. 3d 541, 546
(1994). Morris presents no evidence and the record does not support a finding that his attorney
refused to allow him to testify.
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¶ 48 Morris also suggests the trial court erred in failing to admonish him of his right to testify.
Our supreme court has firmly established that a defendant seeking reversal of his conviction on
the basis that he was precluded from testifying at trial must demonstrate that he
"contemporaneously asserted his right to testify by informing the trial court that he wished to do
so." Smith, 176 Ill. 2d at 234. Further, our supreme court determined that the trial court is not
required “to advise a defendant of his right to testify, to inquire whether he knowingly and
intelligently waived that right" or to ensure that the record establishes defendant's waiver of that
right. Id. at 235. Nothing in the record shows Morris alerted the trial court that he wanted to
testify. Thus, there was no error to satisfy the first prong of the Strickland test in the absence of
evidence that trial counsel refused to allow Morris to testify or that Morris was denied the
opportunity to testify after informing the trial court that he wished to do so.
¶ 49 Alleged Double Enhancement of Sentence
¶ 50 Morris's final contention is that he is entitled to a new sentencing hearing because the
trial court improperly relied on a single factor—his two prior DUI convictions—to elevate his
aggravated DUI to a Class 2 felony and to enhance his sentence as a class X felon resulting in a
double enhancement. Morris acknowledges he forfeited the issue but asks the court to review it
as plain error. Under the narrow and limited plain error exception to the general forfeiture rule, a
reviewing court may consider forfeited errors where the evidence was closely balanced or where
the error was so egregious that defendant was deprived of a substantial right and thus a fair trial.
People v. Herron, 215 Ill. 2d 167, 178-79 (2005). The burden of persuasion remains with the
defendant, and the first step in plain error review is to determine whether any error occurred.
People v. Lewis, 234 Ill. 2d 32, 43 (2009). For the reasons that follow, we find none to excuse
Morris's forfeiture of this issue.
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¶ 51 Generally, a circuit court may not use a factor implicit in the offense for which the
defendant was convicted as an aggravating factor at sentencing for that offense. People v.
Phelps, 211 Ill. 2d 1, 11 (2004). Stated differently, a single factor cannot be used both as an
element of an offense and as a basis for imposing “a harsher sentence than might otherwise have
been imposed.” People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992). Dual use of a single factor is
referred to as a “double enhancement.” Phelps, 211 Ill. 2d at 12. The double-enhancement rule
is one of statutory construction and the standard of review is de novo. Id.
¶ 52 A third aggravated driving under the influence of alcohol violation under section 11-
501(d)(1)(A) of the Code provides is a Class 2 felony. 625 ILCS 5/11-501(d)(2)(I) (West 2012).
Morris argues the circuit court relied on his two prior DUI convictions to elevate this aggravated
DUI from a misdemeanor to a Class 2 felony under section 11-501(d). He contends the circuit
court then relied on those same two DUI convictions to sentence him as a Class X felon under
section 5-4.5-95(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(b) (West 2012)),
the applicable sentencing enhancement statute. Section 5-4.5-95 provides, in part "when a
defendant *** is convicted of a Class 1 or Class 2 felony, after having twice been convicted in
any state *** of an offense that contains the same elements as an offense now *** classified in
Illinois as a Class 2 or greater Class felony and those charges are separately brought and tried
and arise out of different series of acts, that defendant shall be sentenced as a Class X offender."
730 ILCS 5/5-4.5-95(b) (West 2012). Morris insists the circuit court improperly used his prior
DUI convictions as a double enhancement—to elevate his aggravated DUI from a misdemeanor
to a Class 2 felony and then to sentence him as a Class X felon.
¶ 53 For support, Morris relies on People v. Griham, 399 Ill. App. 3d 1169 (2010). In
Griham, the defendant was charged with unlawful possession of a weapon by a felon. Id.
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Defendant argued the State used the same 1996 conviction under the Illinois Controlled
Substances Act (720 ILCS 570/100 et seq. (West 1996)) to elevate his unlawful possession of a
weapon charge to a felony and to enhance his sentence as a Class X offender. Griham, 399 Ill.
App. 3d at 1171. The appellate court agreed, holding that because the State chose to meet an
essential element of the offense—that defendant was a felon—by establishing he had a felony
conviction under the Controlled Substances Act, it could not use the same conviction to qualify
him for Class X sentencing. Id. at 1172. The court rejected the State's argument that the
defendant's 1993 felony conviction for unlawful possession of a weapon was sufficient to elevate
his current conviction to a Class 2 felony because the State failed to present any evidence to the
jury regarding that conviction. Id. Thus, the court vacated defendant's Class X felony and
remanded for proper sentencing. Id. at 1173.
¶ 54 Unlike Griham, Morris has two prior DUI convictions, which were used to elevate his
aggravated DUI to a Class 2, but the State also presented evidence at the sentencing hearing that
he had a prior convictions for Class 2 burglary in 1995, Class 1 manufacturing and delivery
conviction in 1985, and 18 convictions for driving while his driver's license, permit or privilege
to operate a motor vehicle was suspended or revoked, which upon the 15th conviction became a
Class 2 felony under section 6-303(d-5) of the Code. 625 ILCS 5/6-303(d-5) (West 2012). As
the trial court noted, the 1985 and 1995 convictions (and not the prior DUI convictions) qualified
him as Class X eligible. Thus, no improper double enhancement occurred, and there are no
grounds for vacating Morris's sentence.
¶ 55 We affirm Morris's conviction and sentence.
¶ 56 Affirmed.
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