People v. Morris , 2014 IL App (1st) 130152 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Morris, 2014 IL App (1st) 130152
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMES MORRIS, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-13-0152
Filed July 23, 2014
Held Defendant’s conviction and sentence for having “actual physical
(Note: This syllabus control” of a car while under the influence of alcohol and felony
constitutes no part of the driving while his license was suspended or revoked were upheld over
opinion of the court but his contentions that the State did not prove beyond a reasonable doubt
has been prepared by the that he was in actual physical control of the car or under the influence
Reporter of Decisions of alcohol, that the phrase “actual physical control” was
for the convenience of unconstitutionally vague as applied to him, that his counsel was
the reader.) ineffective, and that he was improperly classified as a Class X felon,
since the evidence showed defendant was in the driver’s seat slumped
over the steering wheel with the keys to the car in his right hand, a
rational trier of fact could have found he was in control of the car, his
eyes were bloodshot, he smelled of alcohol, and his performance on
one sobriety test indicated he was intoxicated, the record did not
sustain his claim that his counsel was ineffective, and there was no
improper double enhancement involved in elevating defendant’s
sentence to a Class X felony.
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-9456; the
Review Hon. Kevin M. Sheehan, Judge, presiding.
Judgment Affirmed.
Counsel on Michael A. Ficaro and Maura M. McIntyre, both of Ungaretti & Harris
Appeal LLP, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Christine Cook, and Monique Patton, Assistant State’s Attorneys, of
counsel), for the People.
Panel 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 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
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
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the police station indicated Morris was impaired. Consequently, he was arrested and charged
by indictment with 5 counts of aggravated driving under the influence of alcohol (DUI) (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 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
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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.
¶ 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
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.
¶ 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
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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 defendant had actual physical control of the vehicle; the
list is neither exhaustive, nor is the absence of one individual factor controlling. Id.
¶ 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 was
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). 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 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
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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 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
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
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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 omitted.) 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 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 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
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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 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 187, 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
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
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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.
¶ 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.
¶ 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
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not mean the State 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 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,
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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.
¶ 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.
¶ 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, “[w]hen 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
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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. 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 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 fifteenth
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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