                                                                       FIFTH DIVISION
                                                                       December 28, 2007




No. 1-06-1663

                                                                  )
THE PEOPLE OF THE STATE OF ILLINOIS,                              )    Appeal from the
                                                                  )    Circuit Court of
                Plaintiff-Appellee,                               )    Cook County
                                                                  )
       v.                                                         )
                                                                  )
PATRICK GORDON,                                                   )    Honorable
                                                                  )    Garritt E. Howard,
                Defendant-Appellant.                              )    Judge Presiding.
                                                                  )

       JUSTICE O’MARA FROSSARD delivered the opinion of the court:

       Defendant, Patrick Gordon after a bench trial was convicted of three counts of aggravated

driving under the influence of alcohol, aggravated possession of a stolen motor vehicle, felony driving

while his license was suspended or revoked and aggravated fleeing or attempting to elude the police.

Defendant was sentenced to 8 years in the Illinois State Penitentiary for aggravated possession of a

stolen motor vehicle and 3 years concurrent on all the other felony convictions. Defendant appeals

and contends as follows: (1) that the State did not prove defendant guilty beyond a reasonable doubt

based on witness testimony and a horizontal gaze nystagmus (HGN) sobriety test; (2) the circuit court

erred in admitting the HGN test without a proper foundation and without conducting a hearing to

determine that the test is scientifically reliable pursuant to Frye v. United States, 293 F. 1013 (D.C.

Cir. 1923) (Frye hearing); (3) defendant is entitled to a credit of $1,744 toward the $1,000 DUI fine,

the $1,000 DUI subsequent offense fine, and the $100 Trauma Fund fine; (4) the mittimus should
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reflect a conviction for misdemeanor, not felony aggravated fleeing or attempting to elude the police;

and (5) the mittimus should be corrected to reflect that the three felony aggravated driving under the

influence convictions should merge under the one act/one crime rule. We affirm.

                                         BACKGROUND

       On June 28, 2005, Bedford Hayes drove his car to work. Mr. Hayes parked his car in

front of his place of work, put the keys in the car’s ashtray, and left the car unlocked. When Mr.

Hayes returned to his parking space around 12 p.m. that same day, he noticed that his vehicle was

gone and immediately notified the Evanston police department.

       Mr. James DeClet was at his parent’s house on June 28, 2005, in Skokie, Illinois, when he

noticed defendant’s vehicle. Mr. DeClet noticed that the defendant was driving erratically: first

driving slowly, then accelerating quickly, and then stopping suddenly. Mr. DeClet decided to

follow this vehicle and call 911 to report that defendant was possibly driving under the influence.

Mr. DeClet was able to see in the front seat of defendant’s car and testified that he believed that

defendant was drunk because defendant’s head was bobbing up and down and his eyes were

bloodshot. Mr. DeClet then made a second call to 911 to report that defendant’s car was

zigzagging. Mr. DeClet also gave the 911 dispatcher the license plate number of the vehicle he

was following and the dispatcher confirmed that the license plate number matched that of a

vehicle that had been reported stolen earlier that day.

       Officer Panizo, a police officer for 4½ years, was on street patrol on the date of the

incident. Officer Panizo received a radio call from the police dispatcher about a possibly

intoxicated driver in a car that had been reported stolen in Evanston earlier that day. Officer

Panizo looked for the stolen car and located it stopped at a traffic light. He positioned his car

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behind defendant’s vehicle and, after activating his lights, exited his squad car and approached the

defendant’s vehicle from the driver’s side. Officer Panizo was dressed in his ordinary police

uniform with his badge clearly visible. He ordered the defendant out of this vehicle, but the

defendant did not listen. The defendant then proceeded to make a right turn and drive away from

Officer Panizo. Officer Panizo immediately returned to his squad car and pursued the defendant

with his siren sounding. The pursuit lasted for approximately one mile. Office Panizo testified

that, during this chase, the defendant drove the speed limit and obeyed whatever traffic signals, if

any, were present.

       After Officer Panizo caught up with the defendant, Officer Panizo curbed the defendant’s

car and stopped in front of defendant’s vehicle. By this time, Officer Olkowski had joined Officer

Panizo and pulled up behind the defendant’s vehicle. Just when Officer Panizo was about to exit

his squad car, the defendant accelerated his vehicle and struck the right rear quarter panel of the

squad car. After this impact, Officer Panizo exited his squad car and ordered the defendant out of

his car. The defendant remained in his car, forcing Officer Panizo and Officer Olkowski to

physically remove the defendant from the car. The officers then handcuffed the defendant and

confirmed from the license plate of the defendant’s vehicle that it had been reported stolen.

Officer Panizo noticed that defendant’s eyes were bloodshot and watery, he had a strong odor of

alcoholic beverage about him, he swayed back and forth when he tried to walk toward the squad

car, and his speech was mumbled when he talked to the officers. Officer Panizo then noticed

empty beer cans on the floor of the defendant’s car. Officer Panizo then took defendant to the

Skokie police station and performed the HGN test.



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       During the trial, Officer Panizo testified that he had administered the HGN test at least 25

to 30 times and that he had received hands-on training as to the proper way to administer the test.

He then explained how an officer performs the HGN test on a person who is suspected of being

intoxicated. The test is performed by having the suspect focus on a stimulus, usually a pen,

placed 12 to 15 inches in front of the suspect’s face. The officer then moves the stimulus in

different directions and has the suspect follow the movement with his eyes. The object of this test

is to detect nystagmus, or jerking of the eyes, and whether the eyes track equally. A suspect is

regarded as failing the test if he receives a score of four or more decision points (nystagmus or

jerking points).

       When Officer Panizo gave the defendant the HGN test, the defendant scored six decision

points. The defendant then refused to take any other field sobriety tests. Defendant did agree to

take a Breathalyzer test to determine his blood alcohol level, but Officer Olkowski was not able to

register a reading because the defendant would not blow into the Breathalyzer long enough for

the machine to obtain a reading.

       During his career as a police officer, Officer Panizo has witnessed between 50 and 100

people under the influence of alcohol. He has made between 10 and 15 arrests for driving under

the influence. Based on his extensive experience, the observations that he made when he pulled

over the defendant, and the defendant’s failure of the HGN test, Officer Panizo determined that

the defendant was under the influence of alcohol.

       Defendant did not testify or present any witnesses to rebut the evidence introduced by the

State. Defendant was found guilty of three counts of aggravated driving under the influence of

alcohol, aggravated possession of a stolen motor vehicle, felony driving while his license was

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suspended or revoked and aggravated fleeing or attempting to elude the police. Defendant was

sentenced to 8 years for the aggravated possession of a stolen motor vehicle charge and

concurrent terms of three years on each of the remaining felonies.

                                            ANALYSIS

                                     I. Sufficiency of Evidence

       Defendant’s first contention on appeal is that the State failed to prove him guilty beyond a

reasonable doubt of felony aggravated driving under the influence of alcohol. In support of that

contention, defendant argues that the court found that Officer Panizo’s observations of defendant

alone were “borderline” in terms of being adequate proof of defendant’s intoxication, the only

sobriety test performed was the horizontal gaze nystagmus test, and James DeClet, the only other

witness who testified defendant was under the influence of alcohol, did not have sufficient time or

ability to observe defendant and did not identify defendant in court.

       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 prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443

U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). The Jackson standard

applies in all criminal cases, regardless of the nature of the evidence. People v. Pollock, 202 Ill.

2d 189, 217 (2002). “In conducting this inquiry, the reviewing court must not retry the

defendant.” People v. Cunningham, 212 Ill. 2d 274, 279 (2004). Rather, the reviewing court

must examine the record, keeping in mind that it was the trier of fact who saw and heard the

witness. Cunningham, 212 Ill. 2d at 280. Testimony may be found insufficient under the Jackson

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standard only where it is clear from the record that no reasonable person could have found the

elements of the crime proven beyond a reasonable doubt. Cunningham, 212 Ill. 2d at 280.

       Section 11-501(a)(2) of the Illinois Vehicle Code provides that an individual “shall not

drive or be in actual physical control of any vehicle within this State while” such individual is

“under the influence of alcohol.” 625 ILCS 5/11-501(a)(2) (West 2004). Accordingly, the

prosecution was required to establish that defendant “was in actual physical control” of his car

while he was “under the influence.” See People v. Long, 316 Ill. App. 3d 919, 926 (2000). “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). A defendant is guilty

of driving under the influence if the prosecution proves that a driver was under the influence of a

drug or alcohol to a degree that rendered him incapable of driving safely. People v. Workman,

312 Ill. App. 3d 305 (2000).

       Defendant acknowledges in his brief, relying on People v. Janik, 127 Ill. 2d 453, 461

(1988), that “a conviction for the offense of driving under the influence may be sustained based

solely on the testimony of the arresting officer, but that testimony must be credible.” However,

defendant contends the prosecution failed to prove beyond a reasonable doubt that he was under

the influence of alcohol. To prove defendant was under the influence of alcohol, the prosecution

must establish that defendant was “ ‘less able, either mentally or physically, or both, to exercise

clear judgment, and with steady hands and nerves operate an automobile with safety to himself

and to the public.’ ” People v. Bostelman, 325 Ill. App. 3d 22, 34 (2001), quoting People v.

Seefeldt, 112 Ill. App. 3d 106, 108 (1983). Scientific proof of intoxication is unnecessary to

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sustain a conviction for driving under the influence where there is credible testimony from the

arresting officer. People v. Elliott, 337 Ill. App. 3d 275 (2003).

       The record reflects that Officer Panizo and civilian witness James DeClet testified credibly.

Each witness corroborated each other’s testimony. On a whole their testimony was consistent,

believable and unrebutted. James DeClet observed defendant driving in an erratic manner through

the alleys in Skokie. Mr. DeClet not only described the erratic driving of defendant as he

followed him, but also described defendant’s head bobbing up and down. Mr. DeClet gave the

police a description of the blue Chevrolet station wagon and the number of the license plate,

which matched the car stolen from Mr. Hayes.

       Officer Panizo testified as to defendant’s appearance, speech, conduct and an odor of an

alcoholic beverage on his breath. Officer Panizo indicated he has seen approximately 50 to 100

people under the influence of alcohol during his career as a police officer and has made 10 to 15

DUI arrests. Defendant crashed into Officer Panizo’s car but refused to get out of the vehicle,

even after ordered to do so by Officer Panizo.

       The record contradicts defendant’s contention that neither Officer Panizo nor James

DeClet observed any driving infraction by defendant. In a phone call to the police, Mr. DeClet

told the 911 dispatcher that he saw defendant “blow a stop sign” near Christiana and Lee Streets.

Moreover, Officer Panizo observed defendant crash his vehicle into his marked squad car, which

was parked directly in front of defendant.

       Defendant relies on People v. Clark, which reversed defendant’s conviction and held that

the uncorroborated evidence that defendant smelled of alcohol was insufficient to sustain a

conviction. People v. Clark, 123 Ill. App. 2d 41, 44 (1970). Unlike Clark, in the instant case,

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Officer Panizo and James DeClet corroborated one another.

       After the bench trial the trial court indicated that the testimony of Officer Panizo and

eyewitness James DeClet taken together was sufficient to prove beyond a reasonable doubt that

defendant was in actual control of the vehicle while under the influence of alcohol. The

experienced trial court noted as follows:

                       “The felony DUI counts rest in large part on the driving that

               was observed by Mr. DeClet. And the Defense is correct that Mr.

               DeClet never made an in-court identification of the defendant.

               However, I find that Mr. DeClet’s testimony was sufficiently linked

               to the defendant in that the license number of the car that the officer

               testified to seeing the defendant in is the same license plate number

               that Mr. DeClet observed. Evidently he did not get close enough to

               get a good enough look at the driver to say that this defendant was

               driving that motor vehicle. But the car was only out of his sight for

               a matter of minutes. I suppose it’s possible somebody else could

               have jumped into that car and then got pulled over, but that’s not

               likely at all. I think the State has proven that the person that was

               driving the car when Mr. DeClet was making his observations was

               in fact the defendant.

                       The officer’s testimony alone regarding intoxication would

               be a borderline case in my mind. But when I combine what the

               officer observed and what Mr. DeClet observed relative to the

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               defendant’s driving, this is some very strange driving that the

               defendant was doing. He was all over the place, going through

               alleys, going north, south, east and west, slowing down, speeding

               up. When I combine what Mr. DeClet observed relative to the

               defendant’s driving habits with the officer’s observations, it’s clear

               to me that Mr. Gordon had no reason being behind the wheel of a

               car because he was in no condition to be behind the wheel of a car

               and be driving because he was in fact intoxicated. So I think the

               State has proven the aggravated DUI counts beyond a reasonable

               doubt.”

       The record supports the trial judge’s conclusion that defendant was proven guilty beyond

a reasonable doubt. Viewing the evidence as a whole, we cannot conclude that no reasonable

trier of fact could have found defendant guilty beyond a reasonable doubt.

       Defendant further contends that “reasonable doubt also arises from Panizo’s testimony

regarding the HGN test he administered to Gordon.” We address that contention in the following

section.

                               II. Horizontal Gaze Nystagmus Test

                                         A. Frye Hearing

       The defendant argues that the circuit court erred in admitting the HGN test as scientific

evidence without first holding a Frye hearing. A Frye hearing is used to determine whether the

HGN test has been generally accepted in the scientific community as a reliable indicator of

intoxication. People v. McKown, 226 Ill. 2d 245, 254 (2007). During the last several years the

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appellate districts in Illinois became divided on the general acceptance of HGN testing. People v.

Wiebler, 266 Ill. App. 3d 336 (3rd Dist. 1994), and People v. Buening, 229 Ill. App. 3d 538 (5th

Dist. 1992) took judicial notice of the general acceptance of the reliability of the HGN test as an

indicator of alcohol impairment. However, the Fourth District in People v. Kirk, 289 Ill. App 3d

326 (1997), challenged the reasoning of Buening and Wiebler and declined to determine general

acceptance based on judicial notice alone. The court in Kirk concluded that “HGN evidence is

scientific evidence that must meet the Frye standard before it is admissible.” Kirk, 289 Ill. App.

3d at 332.

       On September 27, 2007, the Supreme Court of Illinois addressed this issue. People v.

McKown, 226 Ill. 2d 245 (2007). The court in McKown stated that a scientific principle or

methodology is proven to be generally accepted in one of two ways: “(1) based on the results of a

Frye hearing; or (2) by taking judicial notice of unequivocal and undisputed prior judicial

decisions or technical writings on the subject.” McKown, 226 Ill. 2d at 254. After reviewing a

large number of judicial decisions, the court recognized that the HGN test is a scientific test

because it is based on a “scientific principle that is not common knowledge, i.e., consumption of

alcohol causes the type of nystagmus measured by the HGN test.” McKown, 226 Ill. 2d at 255.

Regarding the scientific nature of the HGN test, the McKown court further indicated as follows:

               “We agree with those jurisdictions that hold HGN testing to be

               scientific. The average person understands the effect that alcohol

               has on a person’s balance and motor skills. For this reason, the

               average person can draw his own conclusion from the results of

               field-sobriety tests such as the walk-and-turn and the stand-on-one-

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               leg. As such, the results of those tests are not deemed scientific

               evidence. In contrast, the results of an HGN test are meaningless

               to an average person unless accompanied by expert testimony about

               what those results mean and what conclusion may be drawn from

               them. This expert testimony comes from police officers, who must

               be trained to administer and interpret the HGN test. Because the

               results of an HGN test require expert interpretation, we join the

               majority of courts and hold that the results of HGN testing are

               scientific evidence.” McKown, 226 Ill. 2d at 256-57.

       The court in McKown further recognized that a Frye hearing is necessary before evidence

is admitted if that evidence is scientific and novel. McKown, 226 Ill. 2d at 256. The court in

McKown found that the HGN test is still novel in Illinois because no Frye hearing has been

conducted in Illinois to determine whether the HGN test has been generally accepted as a reliable

indicator of alcohol impairment. McKown, 226 Ill. 2d at 257. The court further found the test to

be novel because there have been many recent legal challenges to the admissibility of the HGN

test in this and other states, which demonstrates that the novelty issue is still unresolved.

McKown, 226 Ill. 2d at 257-58.

       Finally, the Illinois Supreme Court resolved the issue of whether the trial and appellate

court in the McKown case “erred in taking judicial notice of the general acceptance of the

reliability of the HGN test as an indicator of alcohol impairment.” McKown, 226 Ill. 2d at 258-

59. In resolving this issue the McKown court took into consideration not only cases from Illinois

and around the nation, but also various technical writings. McKown, 226 Ill. 2d at 259. The

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court in McKown described in detail how the Fifth District in Buening analyzed the rulings of

various other jurisdictions regarding HGN tests and “held that a proper foundation should consist

of describing the education and experience of the officer who administered the test and by a

showing that the procedure was properly administered.” McKown, 226 Ill. 2d at 259-60, citing

Buening, 229 Ill. App. 3d at 546. However, the McKown court noted that the Buening analysis

was questioned in Kirk, 289 Ill. App. 3d 326. In discussing Kirk, the court in McKown

recognized that while Buening took judicial notice of the general acceptance of the reliability of

the HGN test, four of the cases from other jurisdictions that Buening relied on had “deemed HGN

test results to be nonscientific evidence that did not need to satisfy the Frye standard.” McKown,

226 Ill. 2d at 264, citing Kirk, 289 Ill. App. 3d at 333.

        Finally, the court in McKown looked at decisions from several states that require a Frye

hearing and found that the issue was still unsettled. McKown, 226 Ill. 2d at 266. Accordingly,

the court held that this evidence does not create the unequivocal or undisputed viewpoint upon

which a court can take judicial notice. McKown, 226 Ill. 2d at 272. The court in McKown

rejected the State’s additional argument that judicial notice of the general acceptance of the HGN

test results can be based on technical writings currently in existence on the subject. The court in

McKown found that the technical writings “reveal a dichotomy in the scientific community, rather

than the unequivocal or undisputed viewpoint necessary for us to take judicial notice.” McKown,

226 Ill. 2d at 275.

        The court in McKown concluded that a Frye hearing must be held before the results of an

HGN test can be admitted into evidence and explained its holding as follows:



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               “Our holding today does not purport to decide whether the HGN

               test has been generally accepted as a reliable indicator of alcohol

               impairment. Rather, we find that this issue cannot be resolved in

               Illinois on judicial notice alone. In light of the disparate resolutions

               of the issue in foreign jurisdictions, the varying opinions expressed

               in articles on the subject, the fact that a Frye hearing has never been

               held on the matter in Illinois, and the fact that, as far as we are

               aware, the last Frye hearing held on this controversial methodology

               was held in Washington in 2000, we hold that a Frye hearing must

               be held to determine if the HGN test has been generally accepted as

               a reliable indicator of alcohol impairment.” McKown, 226 Ill. 2d at

               275.

       In the factual context of the instant case, we follow the precedent of the Illinois Supreme

Court and conclude that a Frye hearing is required before the results of an HGN test can be

admitted into evidence. Such a hearing is necessary to determine if the HGN test has been

generally accepted as a reliable indicator of alcohol impairment. See McKown, 226 Ill. 2d at 275.

                 B. Admissibility of Results of Horizontal Gaze Nystagmus Test

       Defendant argues that the court erred when it admitted the results of the horizontal gaze

nystagmus test in defendant’s trial without a proper foundation and without a determination that

the HGN test was scientifically reliable. The prosecution contends that defendant has forfeited his

argument that the court erroneously admitted HGN evidence and failed to conduct a Frye hearing

before admitting HGN evidence because defendant never objected to the admission of the

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evidence and never requested a Frye hearing.

       Defendant responds that he has not forfeited these issues because the evidence was closely

balanced and his trial counsel was ineffective for not challenging the foundation for the HGN test

results and for not requesting a Frye hearing. We are mindful that the plain error doctrine allows

review of a forfeited error affecting substantial rights under certain circumstances as delineated by

the Illinois Supreme Court in People v. Herron, as follows:

                       “[T]he plain-error doctrine bypasses normal forfeiture

               principles and allows a reviewing court to consider unpreserved

               error when either (1) the evidence is close, regardless of the

               seriousness of the error, or (2) the error is serious, regardless of the

               closeness of the evidence. In the first instance, the defendant must

               prove ‘prejudicial error.’ That is, the defendant must show both

               that there was plain error and that the evidence was so closely

               balanced that the error alone severely threatened to tip the scales of

               justice against him. The State, of course, can respond by arguing

               that the evidence was not closely balanced, but rather strongly

               weighted against the defendant. In the second instance, the

               defendant must prove there was plain error and that the error was

               so serious that it affected the fairness of the defendant’s trial and

               challenged the integrity of the judicial process. [Citation.]

               Prejudice to the defendant is presumed because of the

               importance of the right involved, ‘regardless of the strength of the

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               evidence.’ (Emphasis in original.) [Citation.] In both instances,

               the burden of persuasion remains with the defendant.” People v.

               Herron, 215 Ill. 2d 167, 186-87 (2005).

       The court in Herron went on to note that, “[i]n Illinois, the closely balanced evidence

prong of the plain-error test guards against errors that could lead to the conviction of an innocent

person [citation], while the substantial rights prong guards against errors that erode the integrity

of the judicial process and undermine the fairness of the defendant’s trial [citations].” Herron,

215 Ill. 2d at 186. In the instant case, defendant argues for review of the forfeited error under the

first prong of the plain error doctrine. Defendant contends he has not forfeited these issues

because he “has shown the evidence at trial was closely-balanced.”

       Applying the plain error test as articulated in Herron, we first determine whether error

occurred in the instant case. Specifically, whether the trial court committed error in admitting the

HGN evidence without the State providing an adequate foundation and by failing to conduct a

Frye hearing. For the reasons previously discussed, under the principles articulated by the Illinois

Supreme Court in McKown, we believe error occurred. A Frye hearing should have been held

before the results of defendant’s HGN test could be admitted into evidence. We note for the

record, however, that the experienced trial judge did not have the benefit of the McKown opinion

and our appellate court had divergent opinions on this issue.

       Having determined that admitting HGN evidence without an adequate foundation and

failing to conduct a Frye hearing was error, we must next determine whether defendant met his

burden to show the error was prejudicial. Herron, 215 Ill. 2d at 193. Specifically, did defendant

show the evidence presented by the State against defendant at trial was “so closely balanced that

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the errors threatened to tip the scales of justice against him?” Herron, 215 Ill. 2d at 187.

Whether the evidence is closely balanced is a question separate and distinct from whether the

evidence is sufficient to sustain a conviction on review against a reasonable doubt challenge. For

the reasons previously discussed, we find the evidence sufficient to sustain a conviction beyond a

reasonable doubt. However, at this point in our analysis, the issue under plain error review is

whether the evidence is closely balanced.

       Defendant argues that the evidence was closely balanced because the evidence was far

from overwhelming and Officer Panizo’s testimony about his observations of the defendant’s

condition did not prove beyond a reasonable doubt that defendant was intoxicated. Defendant

relies on a statement made by the trial judge that defendant interprets as an indication by the trial

judge of the judge not being convinced that Officer Panizo’s testimony proved guilt beyond a

reasonable doubt. We are mindful that testimony from an arresting officer is sufficient to sustain a

conviction for driving under the influence of alcohol and that no scientific proof of intoxication

needs to be offered to sustain the conviction. People v. Elliott, 337 Ill. App. 3d 275, 281 (2003).

However, in the instant case, the trial judge did not solely rely on the testimony of the arresting

officer. Rather, the experienced trial judge considered the totality of the evidence, including

Officer Panizo’s testimony together with Mr. DeClet’s testimony, in concluding the evidence was

sufficient to prove defendant’s guilt beyond a reasonable doubt. The record reflects the trial was

not so closely balanced that the error in admitting the HGN test threatened to tip the scales of

justice against the defendant. Rather, the testimony of a trained officer, corroborated by an

independent eyewitness, provided proof beyond a reasonable doubt even without the trial judge

taking into consideration the results of the HGN test.

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                          III. Defense Counsel Provided Effective Assistance

          The defendant further argues that his trial counsel’s failure to request a Frye hearing and

failure to challenge the foundation for the HGN evidence constituted ineffective assistance of

counsel. A defendant has the constitutional right to effective assistance of counsel. U.S. Const.,

amends. VI, XIV; Ill. Const. 1970, art. I, §8. Strickland v. Washington, 466 U.S. 668, 687-89,

80 L. Ed. 2d 674, 693-95, 104 S. Ct. 2052, 2064-65 (1984); People v. Gaines, 105 Ill. 2d 79, 86

(1984).

          In determining whether a defendant was denied effective assistance of counsel, we apply

the two-prong test set forth in Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at

2064, and adopted by the Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504 (1984).

First, defendant must show that counsel’s representation fell below a reasonable standard,

effectively denying him the sixth amendment right to counsel guaranteed in the United States

Constitution. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Second,

defendant must establish that the ineffective representation resulted in prejudice. Strickland, 466

U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Both prongs of the Strickland test must be

satisfied to establish ineffective assistance of counsel. Albanese, 104 Ill. 2d at 525-27.

          Defense counsel’s performance is deficient if it fails to satisfy an objective standard of

reasonableness. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To prove

the first prong of the Strickland test, the defendant must show that the record demonstrates that

his attorney did not provide effective assistance based on prevailing professional norms. People v.

Caballero, 126 Ill. 2d 248, 259 (1989). Defendant must overcome the “strong presumption that

the challenged action or lack of action might be the product of ‘ “sound trial strategy.” ’

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[Citation.]” Caballero, 126 Ill. 2d at 260. The reviewing court must remember to give great

deference to the performance of counsel and not to second-guess a particular decision or

omission. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. Such deference

to counsel’s conduct should be given within the context of trial and without the benefit of

hindsight. King, 316 Ill. App. 3d at 913, citing Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694,

104 S. Ct. at 2065. Competence of counsel determinations are to be made from a consideration

of the totality of counsel’s conduct, not from isolated incidents. People v. Morris II, 335 Ill. App.

3d 70, 76 (2002). A reviewing court will also “ ‘not extend its inquiry into areas involving the

exercise of judgment, discretion, trial tactics or strategy.’ [Citation.]” People v. Jones, 302 Ill.

App. 3d 892, 898 (1998). The Illinois Supreme Court has stated that decisions regarding “ ‘what

matters to object to and when to object’ ” are matters of trial strategy. People v. Perry, 224 Ill.

2d 312, 344 (2007), quoting People v. Pecoraro, 175 Ill. 2d 294, 327 (1997).

        In the instant case, the question is whether defense counsel’s failure to request a Frye

hearing or to object to the HGN test being admitted into evidence demonstrates ineffective

assistance of counsel because it fails to satisfy an objective standard of reasonableness. A

defendant is entitled to competent, not perfect, representation. People v. Odle, 151 Ill. 2d 168,

173 (1992). When looking at the totality of the circumstances, the record reflects trial counsel

provided defendant effective assistance. The defendant must overcome the strong presumption

that he had effective counsel, which the defendant has not done. Deciding not to object to the

admission of the HGN test results is a matter of trial strategy, and it is not for this court to

second-guess that tactical move. Also, at the point in time when the trial took place there were


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conflicting decisions as to the need for a Frye hearing before admitting the results of an HGN test.

Moreover, defense counsel did not have the benefit of the McKown opinion, which postdated the

trial of the instant case and resolved this conflict.

        Finally, defendant does not meet the second prong of the Strickland test by demonstrating

prejudice. A defendant is prejudiced if there is a reasonable probability that the outcome of the

trial would have been different or that the result of the proceeding was unreliable or fundamentally

unfair. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Evans,

209 Ill. 2d 194, 220 (2004). Such a reasonable probability “is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S.

Ct. at 2069. Where a defendant fails to satisfy Strickland’s second prong by failing to show

prejudice, the reviewing court need not determine whether Strickland’s first prong of deficient

performance has been met. People v. Grant, 339 Ill. App. 3d 792, 799 (2003). The failure to

satisfy either prong of the Strickland test precludes a finding of ineffective assistance of counsel.

Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

        The defendant did not suffer prejudice from the alleged error made by his counsel by not

requesting a Frye hearing or not objecting to the admission of the HGN test results. As explained

earlier in this opinion, the State had produced enough evidence even without the HGN test results

to convict defendant 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. Such

evidence in the instant case was further corroborated by an independent eyewitness. Moreover,

the circuit court never mentioned the HGN test in its findings. The officer’s testimony, together


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with Mr. DeClet’s testimony, was more than sufficient to prove beyond a reasonable doubt that

the defendant was guilty of aggravated driving under the influence. Therefore, because the court

had sufficient evidence to prove guilt beyond a reasonable doubt without the HGN test results

even being considered, defendant fails to demonstrate that the outcome of his trial would have

been different if counsel had not made the alleged error. Moreover, the record does not reflect

the result of the trial was unreliable or fundamentally unfair. For the reasons previously discussed,

defendant has not satisfied either prong of the Strickland test.

           We further conclude that the erroneous admission of the HGN test results was harmless

beyond a reasonable doubt. The competent evidence in the record proves defendant guilty

beyond a reasonable doubt and retrial without the erroneous admission of the HGN evidence

would produce no different result. People v. Arna, 131 Ill. 2d 115, 124 (1989) (erroneous

admission of evidence is harmless error when competent evidence establishes guilt beyond a

reasonable doubt and retrial without the improperly admitted evidence would produce no different

result).

                                               IV. Fines

           Defendant argues he is entitled to a credit of $1,755 toward various fines imposed. He

was assessed a $1,000 DUI fine under section 5-9-1(a)(2) of the Unified Code of Corrections

(Code). 730 ILCS 5/5-9-1(a)(2) (West 2004). He was also assessed a $1,000 DUI subsequent

offense fine under section 11-501(j) of the Illinois Vehicle Code (625 ILCS 5/11-501(j) (West

2004)) and a $100 fine for the Trauma Fund under section 5-9-1(c-5) of the Code. 730 ILCS

5/5-9-1(c-5) (West 2004). Relying on section 110-14 of the Code of Criminal Procedure of 1963


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(725 ILCS 5/110-14 (West 2004)), he requests a $5-per-day presentence credit for the 351 days

he spent in custody prior to sentencing.

        Section 110-14(a), credit for incarceration on bailable offense, provides as follows:

                “Any person incarcerated on a bailable offense who does not supply

                bail and against whom a fine is levied on conviction of such offense

                shall be allowed a credit of $5 for each day so incarcerated upon

                application of the defendant. However, in no case shall the amount

                so allowed or credited exceed the amount of the fine.” 725 ILCS

                5/110-14(a) (West 2004).

        In People v. Jones, 223 Ill. 2d 569 (2006), the Illinois Supreme Court held the Trauma

Fund charge and the drug assessment charge are “fines” and accordingly any defendant assessed

such fines is entitled to the $5-per-day credit. The DUI charges in the instant case are similar to

the drug assessment charge and for the reasons articulated in Jones will be considered “fines.”

Accordingly, defendant is due a credit of $1,755 against his fines and the sentencing order shall be

modified to reflect this credit.

                     V. Mittimus Corrected to Reflect Misdemeanor Conviction

        Defendant contends his mittimus should be corrected to reflect his conviction of the Class

A misdemeanor charge of fleeing or attempting to elude a police officer, rather than the

aggravated felony charge of aggravated fleeing or attempting to elude a police officer. The

prosecution has no objection to this correction and the record reflects defendant was in fact

convicted of the misdemeanor, not the felony, offense. Accordingly, we order that the mittimus

be corrected to reflect a conviction for misdemeanor fleeing or attempting to elude a police

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officer.

                                     VI. One-Act, One-Crime Rule

           Defendant requests his mittimus be corrected to reflect that the three convictions of felony

aggravated DUI have merged because they are all based on the same act of driving under the

influence of alcohol. Defendant was charged and convicted of three counts of felony aggravated

driving under the influence of alcohol. The judgment order reflects all three convictions. We are

mindful that the one-act, one-crime rule prohibits multiple convictions when more than one

offense is based on the same physical act. People v. Crespo, 203 Ill. 2d 335 (2001); People v.

King, 66 Ill. 2d 551, 566 (1977). All three of defendant’s convictions are based on the same

underlying act of driving under the influence of alcohol, and accordingly, counts III and IV should

merge with count II. We order the mittimus corrected to reflect a single conviction on count II

and counts III and IV merge with count II.

                                             CONCLUSION

           For the reasons previously discussed, the State proved defendant guilty beyond a

reasonable doubt and the erroneous admission of the HGN test results was harmless error.

Defendant’s sentencing order should be corrected to reflect a credit of $1,755 toward his fines.

The mittimus should be corrected to reflect a conviction for misdemeanor fleeing or attempting to

elude the police and further corrected to reflect a single conviction on count II with counts III and

IV merging into count II.

           Affirmed, mittimus corrected.

           FITZGERALD SMITH, P.J., and GALLAGHER, J., concur.



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