                                  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


                                                   -4-
       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


                                                    -6-
       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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