                                                                         Digitally signed by
                                                                         Reporter of Decisions
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                                                                         of this document
                               Appellate Court                           Date: 2017.01.11
                                                                         12:13:26 -06'00'




                  People v. Winchester, 2016 IL App (4th) 140781



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            MARK N. WINCHESTER, Defendant-Appellant.



District & No.     Fourth District
                   Docket No. 4-14-0781



Filed              November 30, 2016



Decision Under     Appeal from the Circuit Court of Champaign County, No.
Review             13-CF-1192; the Hon. Richard P. Klaus, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Ellen J. Curry, and Ian C. Barnes (argued), of
Appeal             State Appellate Defender’s Office, of Mt. Vernon, for appellant.

                   Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                   Robinson, and Julia Kaye Wykoff (argued), of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              PRESIDING JUSTICE KNECHT delivered the judgment of the court,
                   with opinion.
                   Justices Steigmann and Appleton concurred in the judgment and
                   opinion.
                                             OPINION

¶1        A jury convicted defendant, Mark N. Winchester, of aggravated driving under the
     influence of alcohol (aggravated DUI) (625 ILCS 5/11-501(d)(2)(B) (West 2012)), and the
     trial court sentenced him to six years’ imprisonment. Defendant appeals, claiming the trial
     court erred when it (1) denied his motion to suppress evidence and (2) relied on improper
     aggravating factors already inherent in the charged offense when it sentenced him. We affirm.

¶2                                       I. BACKGROUND
¶3       On July 24, 2013, the State charged defendant by information with one count of aggravated
     DUI (625 ILCS 5/11-501(d)(2)(B) (West 2012)). The information alleged defendant drove or
     was in actual physical control of a motor vehicle at a time when he was under the influence of
     alcohol and he had two prior driving under the influence (DUI) convictions. The charges arose
     from an encounter with University of Illinois police officer Ryan Snow. The facts are
     undisputed for purposes of this appeal.

¶4                      A. Motion “To Quash Arrest” and Suppress Evidence
¶5       On September 19, 2013, defendant filed a motion “to quash arrest” and suppress evidence,
     arguing he was unlawfully seized by Snow. At the hearing on the motion, Snow provided the
     following testimony.
¶6       Snow testified that on July 2, 2013, at approximately 1:20 a.m., he was on duty, in uniform,
     armed, and in an unmarked patrol car. Driving westbound on Kirby Avenue, he observed a
     Ford Explorer driving eastbound. The vehicle caught Snow’s attention because it was the only
     vehicle on the road. While passing the Ford Explorer, Snow observed defendant “[with] both
     hands on the wheel, *** griping tightly, leaning forward in [his] seat, and looking straight
     ahead” (described as “tunnel vision”). Snow turned off a side street and ended up two blocks
     behind the Ford Explorer. Snow followed the vehicle for over a mile, until it pulled into an
     apartment complex parking lot. Snow pulled into an adjacent lot to turn around and exit the
     area. No traffic violations had occurred.
¶7       No one exited the vehicle, and Snow decided he would “wait and see why that person
     would not exit their vehicle after parking in an area like that.” After five minutes, Snow exited
     his patrol car and approached the Ford Explorer. He approached the vehicle and observed
     defendant slumped over the driver’s seat with keys in his right hand and a bottle of tea in his
     left hand. He attempted to wake defendant by knocking on the window and yelling. He
     received no response. Snow radioed for an assisting officer to set up his response time because
     he did not know if defendant “had a medical emergency at that time.” Snow continued to
     knock on the window and could not wake defendant.
¶8       Snow testified defendant eventually started to move around. At this time, Snow was still
     unsure of his status or health. Defendant then held up his right hand, still grasping the keys,
     raised his middle finger, and said, “no policia.” Snow asked defendant to open the door so he
     could speak to him. Snow remained concerned about defendant’s medical status. When
     defendant opened the door, Snow detected the odor of an alcoholic beverage emitting from the
     vehicle. Defendant attempted to exit the vehicle. Defendant was lethargic and slow moving,



                                                 -2-
       slurred his speech, and had difficulty standing. Snow asked defendant to sit back down because
       he was concerned defendant would fall.
¶9         In his motion “to quash arrest” and suppress evidence, defendant argued he did not consent
       to the interaction with Snow and Snow did not have a legal basis for conducting the stop.
       Further, defendant argued the community caretaking exception was inapplicable because
       Snow was investigating a crime “on a mere hunch *** [d]efendant had committed, was in the
       process of committing, or was about to commit a crime or traffic violation.” Defendant
       requested the stop and all that followed be suppressed.
¶ 10       The trial court denied the motion. The court stated, in relevant part, as follows:
               “When [Snow] decided to follow the [d]efendant’s vehicle, [he] was engaged in what
               police officers do. The [d]efendant took an unusual route, although that phrase has not
               been described here, it certainly is on the video, a fact with which I agree, to get to
               where he got to. At no time did the officer attempt to effectuate a stop. He probably
               wouldn’t have had a basis at that [point] to effectuate a stop. He simply followed him.
               That’s what police officers do.
                   The [d]efendant pulled into a parking lot. The police officer pulled into a different
               lot and watched. Also, what police officers do. He never effectuated a stop ***. All he
               did was watch. And nothing happened for five minutes. At that point, he decided that at
               1:30 in the morning, nobody’s exited the vehicle, he’s going to check on the welfare of
               the [d]efendant.
                   You can call it a consensual stop, you can call it a community caretaker function.
               The Illinois Supreme Court’s not wild about the latter phrasing, but having said that, he
               walks up to the vehicle and he sees a citizen slumped over the wheel. And there’s been
               no testimony to the contrary, that the [d]efendant was either unconscious or asleep or
               whatever, in a vehicle. He then proceeded to do exactly what he’s supposed to do,
               which is, check on the welfare of the citizen.
                   At that point, there’s been no seizure. At that point, there’s been no Terry stop [see
               Terry v. Ohio, 392 U.S. 1 (1968)]. At that point, all the officer has engaged in is a
               consensual encounter situation, in the Court’s opinion.”

¶ 11                                             B. Trial
¶ 12       Snow testified at defendant’s trial with only slight variations. Snow testified defendant’s
       driving route led him to believe he was attempting to elude him. Once defendant awakened,
       defendant extended his middle finger and said, “f*** you, no policia.” When defendant opened
       his door, he explained his girlfriend was driving the car and she went inside the apartment.
       Defendant argued he was not in the driver’s seat (Snow questioned defendant as he was sitting
       in the driver’s seat). When Snow’s assisting officer arrived, he asked defendant to step to the
       rear of the vehicle to perform field sobriety tests to make sure he was okay. Snow believed
       defendant was driving under the influence. Snow administered three tests: the horizontal gaze
       nystagmus, walk-and-turn, and one-legged stand. Defendant had difficulty following
       instructions and could not successfully complete any of the tests. Snow placed him under
       arrest, and defendant refused to submit to a Breathalyzer. The jury convicted defendant of
       aggravated DUI (625 ILCS 5/11-501(d)(2)(B) (West 2012)).



                                                   -3-
¶ 13                                       C. Posttrial Motion
¶ 14       On August 20, 2014, defendant filed a posttrial motion, arguing the trial court erred when it
       denied his motion to suppress evidence. Defendant argued, among other things, Snow
       followed his vehicle because he believed the driver was leaning forward and focused
       extremely hard on the task of driving, and this was not a valid basis for Snow to follow him and
       eventually approach his vehicle (citing People v. Swisher, 207 Ill. App. 3d 125, 128-29, 565
       N.E.2d 281, 283 (1990)). The court denied the motion.

¶ 15                                           D. Sentencing
¶ 16       The State recommended defendant be sentenced to the maximum term of seven years’
       imprisonment. The State argued, “the statutory factor in aggravation is the [d]efendant’s
       criminal history. The [d]efendant is not here for the first or second time that he’s done this but
       the third time he has committed the offense of driving under the influence. Most notably the
       last time was 2010 *** and the time before that was 2005. Both times previously he was
       granted terms of probation in those cases.” The State went on to discuss defendant’s prior theft
       conviction with multiple petitions to revoke and his eventual prison sentence. It concluded,
       “[g]iven his criminal history and the [d]efendant’s repeated violation of the DUI statute, I’d
       ask that the [d]efendant be sentenced to a period of seven years in [prison].”
¶ 17       The trial court sentenced defendant to six years’ imprisonment. In imposing its sentence,
       the court stated it considered “the presentence report, the drug and alcohol evaluation, the
       evidence submitted in advance in mitigation, [the parties’] arguments, [and] the [d]efendant’s
       exercise of his right of allocution.” The court also detailed defendant’s “record of criminality”
       and stated:
               “The State articulated that one of the factors in aggravation present is the [d]efendant’s
               record of criminality. I would note in 2004, a conviction was entered as to Class 3 theft
               in Vermilion County and that he was originally placed on 24 months of probation, that
               a [petition to revoke] was filed, that he was ultimately resentenced to 30 months of
               probation and as part of that probation *** [he] was ordered to obtain an alcohol and
               drug abuse evaluation and complete treatment. He was ultimately then subject to
               another petition to revoke in the same case, resentenced to an additional term of
               probation, ultimately another [petition to revoke was] filed in the same case and then
               [he] was sentenced to three months in the Department of Corrections.
                   The [d]efendant has shown an inability to follow court orders and to obey the terms
               of a community-based sentence. The [d]efendant has continued to drive without a
               license. The [d]efendant has continued to drink and drive without a license. The
               [d]efendant is a danger to the public and must be deterred from the conduct that he has
               engaged in and a message of deterrence must also be used to prevent similarly situated
               people from engaging in this offense.” (Emphasis added.)
¶ 18       This appeal followed.

¶ 19                                       II. ANALYSIS
¶ 20       On appeal, defendant raises two main arguments. First, defendant contends the trial court
       erred when it denied his motion to suppress evidence because he was unlawfully seized by
       Snow and the community caretaking exception is inapplicable. Second, defendant argues the


                                                   -4-
       trial court relied on improper aggravating factors inherent in the offense when it sentenced
       him. The State maintains the trial court properly denied defendant’s motion because the
       community caretaking exception applied and court did not err when it sentenced him. We
       address each contention in turn.

¶ 21                                 A. Motion To Suppress Evidence
¶ 22        Defendant titled his motion as a “Motion to Quash Arrest and Suppress Evidence.” This
       title is improper because defendant is not challenging his arrest as void but challenging
       whether the arresting officer had probable cause or reasonable suspicion. A proper title for
       such a motion is “motion to suppress evidence.” See People v. Hansen, 2012 IL App (4th)
       110603, ¶ 63, 968 N.E.2d 164 (“defendants should stop filing such motions and should instead
       file only motions to suppress evidence”). We will treat it as a motion to suppress, but we
       believe the issue deserves additional comment. The motion was improper in form, defendants
       should stop filing such motions, and trial courts should no longer accept such motions.
¶ 23        Four-and-a-half years ago, this court in Hansen pointed out filing a “motion to quash
       arrest” was meaningless when the defendant was really filing a motion to suppress evidence
       based upon the defendant’s claim that the arresting officer improperly stopped the defendant’s
       vehicle. In Hansen, this court explained suppressing the evidence obtained by the police as a
       result of an improper stop is the entirety of the relief to which a defendant is entitled and the
       only relief provided for in section 114-12 of the Code of Criminal Procedure of 1963 (Criminal
       Code) (725 ILCS 5/114-12 (West 2010)), which is titled, “Motion to Suppress Evidence
       Illegally Seized.” We concluded our discussion in Hansen by noting a “motion to quash arrest”
       (1) is unnecessary to achieve a defendant’s goal of suppressing evidence, (2) adds nothing to
       an analysis of whether a motion to suppress based upon an allegedly illegal search or stopping
       should be granted, and (3) only adds confusion to such an analysis. Hansen, 2012 IL App (4th)
       110603, ¶ 63, 968 N.E.2d 164.
¶ 24        Since writing in Hansen of our disapproval of “motions to quash arrest,” this court has
       frequently cited Hansen and reiterated that criticism. See People v. Carroll, 2012 IL App (4th)
       110028-U, ¶ 97; People v. Hart, 2012 IL App (4th) 110738-U, ¶ 20; People v. Raithel, 2012 IL
       App (4th) 110712-U, ¶ 22; People v. Cartmill, 2013 IL App (4th) 120820-U, ¶ 7; People v.
       Gaytan, 2013 IL App (4th) 120217, ¶ 5, 992 N.E.2d 17, rev’d on other grounds, 2015 IL
       116223, 32 N.E.3d 641; People v. Allen, 2013 IL App (4th) 120818-U, ¶ 38; People v.
       Campbell, 2016 IL App (4th) 131083-U, ¶¶ 30-31.
¶ 25        In People v. Ramirez, 2013 IL App (4th) 121153, ¶ 59, 996 N.E.2d 1227, this court again
       addressed that subject and, quoting extensively from Hansen, explained what a motion to
       suppress filed pursuant to section 114-12 of the Criminal Code “must clearly set forth at a
       minimum” (emphasis in original)—namely, (1) the title of the motion should be “motion to
       suppress evidence,” (2) the motion to suppress must clearly identify the evidence sought to be
       suppressed, and (3) the motion must state facts showing wherein the search and seizure were
       unlawful.
¶ 26        In the present case, defendant filed a “motion to quash arrest” in September 2013, instead
       of filing a proper “motion to suppress evidence.” That improper motion was filed almost 1½
       years after our decision in Hansen. It appears this court’s message is not getting out regarding
       the inappropriateness of filing “motions to quash arrest.”


                                                   -5-
¶ 27       One way to get defense counsel to stop filing “motions to quash arrest” when they really
       mean to file “motions to suppress evidence” is for trial courts to sua sponte reject such motions
       on their face and to direct defense counsel to file a proper motion to suppress if counsel wishes
       to do so. This court previously took that action where counsel were filing improper motions to
       dismiss in civil cases.
¶ 28       In Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 120207, 978 N.E.2d 1132, this court
       addressed the ongoing problem of improper motions to dismiss being filed under section
       2-619.1 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-619.1 (West 2010)). We
       noted section 2-619.1 of the Civil Code permitted counsel to file a combined motion to dismiss
       under section 2-615 and section 2-619 of the Civil Code but required each part of such a
       motion be limited to—and specify that it is made under—section 2-615 or section 2-619.
       Howle, 2012 IL App (4th) 120207, ¶ 72, 978 N.E.2d 1132. Section 2-619.1 of the Civil Code
       also requires each part of such a combined motion to “also clearly show the points or grounds
       relied upon under the Section upon which it is based.” 735 ILCS 5/2-619.1 (West 2010).
¶ 29       In recognition of the ongoing problem and potential for confusion, this court wrote, “trial
       courts should not—and need not—accept for consideration combined motions under section
       2-619.1 that do not meet these statutory requirements. To avoid unnecessary complications
       and confusion ***, trial courts should sua sponte reject such motions and give the defendants
       who filed them the opportunity (if they wish) to file a section 2-619.1 motion that meets the
       statutory requirements.” Howle, 2012 IL App (4th) 120207, ¶ 73, 978 N.E.2d 1132; see also
       Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 21, 988 N.E.2d 984
       (recommending trial courts take similar measures as those described in Howle); Lavite v.
       Dunstan, 2016 IL App (5th) 150401, ¶ 21, 58 N.E.3d 1270 (recommending trial courts take
       similar measures as those described in Reynolds).
¶ 30       The trial courts that hear criminal cases should do the same thing. If a trial court receives a
       “motion to quash arrest,” it should not accept it for consideration and should point out to
       counsel the motion is inappropriate for the reasons this court explained in Hansen and
       Ramirez. The court should then give the counsel who filed the inappropriate motion the
       opportunity to file a proper motion to suppress under section 114-12 of the Criminal Code.
       Motion practice is sometimes complicated, but it need not be. “Motion to quash arrest” is an
       arcane phrase that has a ring of authenticity but is actually meaningless verbiage.
¶ 31       Next, we address the proper standard of review for motions to suppress evidence. “[W]e
       review a trial court’s ruling on a motion to suppress under a two-part standard: the trial court’s
       factual findings will be reversed only if they are against the manifest weight of the evidence,
       but the trial court’s ultimate ruling on whether suppression is warranted is reviewed de novo.”
       People v. Chambers, 2016 IL 117911, ¶ 76, 47 N.E.3d 545.
¶ 32       Police-citizen encounters have been divided into three tiers: (1) arrests of a citizen, which
       must be supported by probable cause; (2) brief investigative detentions (Terry stops) supported
       by a reasonable, articulable suspicion of criminal activity; and (3) consensual encounters,
       which do not involve coercion or detention. People v. Luedemann, 222 Ill. 2d 530, 544, 857
       N.E.2d 187, 196 (2006). Defendant argues he was unlawfully seized as (1) Snow did not have
       probable cause, (2) Snow did not have a reasonable, articulable suspicion of criminal activity,
       and (3) he declined Snow’s encounter. In determining whether defendant’s fourth amendment
       rights were violated, we must first determine whether he was seized.


                                                    -6-
¶ 33                                              1. Seizure
¶ 34        Defendant argues he was seized when Snow asked him to open his car door. A person is
       seized for fourth amendment purposes when an officer, by means of physical force or show of
       authority, has restrained the individual’s liberty. People v. Gherna, 203 Ill. 2d 165, 177, 784
       N.E.2d 799, 807 (2003). The parties cite different tests to determine whether an individual is
       seized for fourth amendment purposes. The State suggests the appropriate test is whether a
       reasonable person would have believed he was not free to leave, citing United States v.
       Mendenhall, 446 U.S. 544, 554 (1980). Defendant argues the proper test is whether a
       reasonable person, taking into account all the circumstances of the incident, would feel free to
       decline the officer’s requests or otherwise terminate the encounter, citing Luedemann, 222 Ill.
       2d at 550-51, 857 N.E.2d at 200.
¶ 35        Our supreme court has held “in situations in which the person’s freedom of movement is
       restrained by some factor independent of police conduct the ‘free to leave’ test is inapplicable
       and ‘the appropriate inquiry is whether a reasonable person would feel free to decline the
       [officer’s] requests or otherwise terminate the encounter.’ ” Luedemann, 222 Ill. 2d at 550, 857
       N.E.2d at 200 (quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)). When a person is seated
       in a parked vehicle, the appropriate test to determine if an individual has been seized is
       “whether a reasonable person in defendant’s position would have believed he was free to
       decline [the officer’s] requests or otherwise terminate the encounter.” Luedemann, 222 Ill. 2d
       at 550-51, 857 N.E.2d at 200. “The analysis requires an objective evaluation of the police
       conduct in question and does not hinge upon the subjective perception of the person involved.”
       Luedemann, 222 Ill. 2d at 551, 857 N.E.2d at 200.
¶ 36        There are four factors indicating a seizure may have occurred: “(1) the threatening
       presence of several officers; (2) the display of a weapon by an officer; (3) some physical
       touching of the person of the citizen; and (4) the use of language or tone of voice indicating
       that compliance with the officer’s request might be compelled.” Luedemann, 222 Ill. 2d at 553,
       857 N.E.2d at 201. These factors are not exhaustive, and a seizure can be found based on
       similar coercive police behavior. Luedemann, 222 Ill. 2d at 557, 857 N.E.2d at 203.
¶ 37        Defendant relies on Gherna for his assertion he was seized when Snow asked him to open
       his car door. In Gherna, two uniformed officers were on bicycle patrol and observed two
       females sitting in a parked pickup truck in an apartment complex parking lot. Gherna, 203 Ill.
       2d at 168, 784 N.E.2d at 801. Officer Wasson testified, as he and his partner passed the truck,
       he saw a bottle of beer in the center console. Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 801.
       Wasson stated the passenger appeared to be young, and he suspected possible underage
       drinking. Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 801. The officers stopped to identify the
       two females. Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 801. Wasson approached the driver’s
       side of the truck, and the other officer approached the passenger side of the truck. Gherna, 203
       Ill. 2d at 185, 784 N.E.2d at 811. The defendant, the driver of the truck, was over the age of 21,
       and the passenger was her 13-year-old daughter. Gherna, 203 Ill. 2d at 168, 784 N.E.2d at
       801-02. The officers examined the beer bottle and determined it was unopened and in its
       original container. Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 802. The officers began
       “ ‘casually talking’ ” with defendant, and Wasson observed defendant became “ ‘very
       nervous.’ ” Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 802.
¶ 38        As Wasson conversed with the defendant, he noticed an item resembling a credit card
       under her left thigh. Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 802. He asked the defendant

                                                   -7-
       about the card, and she showed it to him. Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 802.
       Wasson identified the card as an Illinois Link card, which was in the name of Lowell Briggs.
       Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 802. Wasson asked the defendant how she came into
       possession of the card, and she claimed she did not know how the card got into her vehicle.
       Gherna, 203 Ill. 2d at 168, 784 N.E.2d at 802. Wasson then asked the defendant to step out of
       the vehicle to speak with him outside of the presence of her 13-year-old daughter. Gherna, 203
       Ill. 2d at 169, 784 N.E.2d at 802. Wasson asked the defendant if there were any additional
       items in the vehicle belonging to Lowell Briggs. Gherna, 203 Ill. 2d at 169, 784 N.E.2d at 802.
       The defendant told Wasson the officers were “ ‘free to look.’ ” Gherna, 203 Ill. 2d at 169, 784
       N.E.2d at 802. The officers did not search the vehicle at this time. Gherna, 203 Ill. 2d at 169,
       784 N.E.2d at 802. Wasson asked the defendant if she had any illegal drugs or narcotics, to
       which she responded in the negative. Gherna, 203 Ill. 2d at 169, 784 N.E.2d at 802. Wasson
       paused for about 10 seconds, and the defendant began emptying her pockets, at which point a
       small, clear bag, which contained several yellowish-white rocks later tested and identified as
       cocaine, fell on the ground. Gherna, 203 Ill. 2d at 169, 784 N.E.2d at 802. The defendant was
       arrested and charged with unlawful possession of a controlled substance. Gherna, 203 Ill. 2d at
       167, 784 N.E.2d at 801.
¶ 39        The defendant filed a motion to suppress evidence, alleging her fourth amendment rights
       were violated because she was searched without a warrant and without probable cause.
       Gherna, 203 Ill. 2d at 169, 784 N.E.2d at 802. More specifically, the defendant argued the
       officers’ initial stop amounted to a Terry stop and, once the officers determined there was no
       underage drinking or open alcohol violations, their investigation should have ceased. Gherna,
       203 Ill. 2d at 169, 784 N.E.2d at 802. The State argued the entire encounter was consensual
       and, therefore, the defendant’s fourth amendment rights were not implicated. Gherna, 203 Ill.
       2d at 172, 784 N.E.2d at 804. The trial court granted the defendant’s motion and concluded her
       continued detention post-Terry stop constituted an unlawful seizure. Gherna, 203 Ill. 2d at
       172, 784 N.E.2d at 804. The trial court noted:
               “ ‘Upon asking the defendant to leave the car so as to conduct a conversation outside
               the presence of her daughter, the defendant was unlawfully detained. The court rejects
               the State’s position that this was a mere request because a person in the defendant’s
               position could reasonably believe that upon being asked to step away from the car, she
               was not free to leave. Accepting the testimony that the defendant thereafter gave her
               consent to search, the court finds such consent was tainted as a product of that unlawful
               detention.’ ” Gherna, 203 Ill. 2d at 172-73, 784 N.E.2d at 804.
¶ 40        On appeal, the trial court’s judgment was reversed. The appellate court found the entire
       encounter between the defendant and the officers was consensual and, therefore, defendant
       was not seized. Gherna, 203 Ill. 2d at 173, 784 N.E.2d at 804. The Illinois Supreme Court
       reversed the appellate court’s decision, concluding the trial court was correct. The supreme
       court explained:
                   “Under the totality of the circumstances at bar, we conclude that the presence and
               positioning of the officers with their bicycles on either side of defendant’s vehicle,
               combined with Officer Wasson’s request to defendant to produce the bottle of beer for
               examination after questioning defendant and her daughter about their identities,
               constituted an official show of authority to which a reasonable innocent person would
               feel compelled to submit. At the time Officer Wasson asked defendant to hand him the

                                                   -8-
                bottle of beer, a reasonable innocent person in defendant’s position would not have felt
                ‘free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.]
                At that instant, defendant’s movement was restricted: the positioning of the officers
                and their bicycles prevented defendant from either exiting the vehicle or driving the
                vehicle away from the scene. This blocked movement, combined with the request to
                examine the bottle of beer on the heels of other questioning, would ‘ “have
                communicated to a reasonable person that he was not at liberty to ignore the police
                presence and go about his business.” ’ [Citations.]” Gherna, 203 Ill. 2d at 180, 784
                N.E.2d at 808.
¶ 41        Defendant suggests his case is similar to Gherna because “he was left with the dilemma of
       either complying with the officer’s request or sitting awkwardly in his vehicle with an officer
       standing just outside of it.” Additionally, he argues, similar to Gherna, Snow never told him he
       was free to go or otherwise free to not comply with his request. Defendant suggests his case has
       an additional factor demonstrative of a seizure in that he expressed in unequivocal terms he did
       not want to speak or interact with Snow when he extended his middle finger and said “no
       policia.” He argues Snow persisted after being told he was not welcome, which conveyed a
       message compliance with his request was required (citing Bostick, 501 U.S. at 437). In
       response, the State does not argue whether defendant was seized, but it suggests if he was, the
       community caretaking exception applies.
¶ 42        We first address whether defendant was seized before addressing whether the community
       caretaking exception applies. See Luedemann, 222 Ill. 2d at 548, 857 N.E.2d at 198-199
       (“[T]he ‘community caretaking’ doctrine *** is invoked to validate a search or seizure as
       reasonable under the fourth amendment. It is not relevant to determining whether police
       conduct amounted to a seizure in the first place.”).
¶ 43        We disagree with the trial court’s conclusion this was a consensual encounter and no
       seizure occurred. Based on the record, it appears defendant was seized when Snow asked him
       to open the door to his vehicle. Nothing in the record indicates this was a consensual encounter.
       As stated in Gherna, “an individual is not seized for fourth amendment purposes when police
       ask questions of that individual, including a request for identification, so long as the officers do
       not convey by their words or actions to the person being questioned that compliance with their
       requests is required.” Gherna, 203 Ill. 2d at 179, 784 N.E.2d at 807.
¶ 44        Defendant, while seated in his vehicle, declined Snow’s encounter by his words and
       actions, by saying “no policia” or “f*** you, no policia” and extending his middle finger.
       Defendant’s vehicle was parked between two cars, and Snow was between defendant’s
       driver’s side door and the vehicle parked next to it. Similarly to Gherna, where there was an
       officer on each side of the truck, Snow was outside defendant’s door, the only reasonable
       means for defendant to egress. Gherna, 203 Ill. 2d at 185, 784 N.E.2d at 811. Snow proceeded
       to ask defendant to open the door to his vehicle, even after defendant said “no policia” or “f***
       you, no policia” and extended his middle finger. Snow’s request for defendant to open his door
       after he declined the encounter demonstrates his compliance was required. See Gherna, 203
       Ill. 2d at 179, 784 N.E.2d at 807.
¶ 45        Although there was only one officer, no display of a weapon, no physical touching of
       defendant’s person, and no use of language or tone indicating compliance with Snow’s request
       was required, other actions by Snow indicated compliance was required. Luedemann, 222 Ill.
       2d at 553, 857 N.E.2d at 201. Even though Snow “asked” defendant to open his door, Snow’s

                                                    -9-
       location and persistence after defendant declined the encounter were coercive, and we cannot
       say a reasonable person would feel free to decline Snow’s request to open the door or make a
       second attempt to terminate the encounter. See Luedemann, 222 Ill. 2d at 557, 857 N.E.2d at
       203. Since we determined defendant was seized for fourth amendment purposes, we must
       address whether Snow had a reasonable, articulable suspicion or probable cause to justify the
       seizure as reasonable. See People v. Butler, 2015 IL App (1st) 131870, ¶ 29, 47 N.E.3d 332
       (the fourth amendment only protects against unreasonable searches and seizures; a search or
       seizure is reasonable if it is supported by either probable cause or reasonable suspicion).

¶ 46                          2. Probable Cause and Reasonable Suspicion
¶ 47       Next, defendant argues his seizure was unreasonable because it was not supported by
       probable cause or reasonable suspicion. The State does not address this argument and instead
       continues to rely on the community caretaking exception, if any seizure occurred at all. The
       facts known to Snow at the time of the seizure did not amount to probable cause. Snow
       admitted he did not have knowledge of a traffic violation or criminal offense up to the moment
       he asked defendant to open his car door. Snow testified his reason for approaching defendant’s
       vehicle was to see why someone would not exit their car five minutes after parking at an
       apartment complex and if there was a medical emergency. After defendant opened the car
       door, Snow smelled alcohol and suspected defendant had been driving while intoxicated. The
       seizure was not supported by probable cause.
¶ 48       Similarly, we find Snow did not have reasonable suspicion to justify the seizure. “[A]n
       officer may, within the parameters of the fourth amendment, conduct a brief, investigatory stop
       of a citizen when the officer has a reasonable, articulable suspicion of criminal activity, and
       such suspicion amounts to more than a mere ‘hunch.’ ” Gherna, 203 Ill. 2d at 177, 784 N.E.2d
       at 806 (citing Terry, 392 U.S. at 27). Snow admitted he did not have any knowledge of a traffic
       violation or criminal offense when he asked defendant to open his car door. Therefore, the
       seizure was not supported by reasonable suspicion.

¶ 49                               3. Community Caretaking Exception
¶ 50       The State argues, if this court determines defendant was seized for fourth amendment
       purposes, we should find Snow’s actions fall within the community caretaking exception.
       Defendant argues Snow was not performing a community caretaking function when he seized
       him because it was clear he was not in need of medical assistance.
¶ 51       Community caretaking refers to “a capacity in which the police act when they are
       performing some task unrelated to the investigation of crime.” Luedemann, 222 Ill. 2d at 545,
       857 N.E.2d at 197. “[P]olice spend relatively less time than is commonly thought investigating
       violations of the criminal law and spend a good deal of time performing functions as
       responding to heart attack victims, helping children find their parents, helping inebriates find
       their way home, responding to calls about missing persons or sick neighbors, mediating noise
       disputes, responding to calls about stray or injured animals, investigating premises left open at
       night, taking lost property into their possession, and removing abandoned property.” (Internal
       quotation marks omitted.) Luedemann, 222 Ill. 2d at 545-46, 857 N.E.2d at 197.
¶ 52       The community caretaking exception is used to uphold searches or seizures as reasonable
       under the fourth amendment as long as (1) “law enforcement officers [were] performing some
       function other than the investigation of a crime” and (2) “the search or seizure [was]

                                                  - 10 -
       reasonable because it was undertaken to protect the safety of the general public.” People v.
       McDonough, 239 Ill. 2d 260, 272, 940 N.E.2d 1100, 1109 (2010). Historically, courts have
       used the community caretaking exception to describe consensual encounters. See Luedemann,
       222 Ill. 2d at 544, 857 N.E.2d at 196. In 2006, the Illinois Supreme Court clarified the
       community caretaking exception is “analytically distinct from consensual encounters and is
       invoked to validate a search or seizure as reasonable under the fourth amendment.”
       Luedemann, 222 Ill. 2d at 548, 857 N.E.2d at 198-99.
¶ 53        The Third District addressed the community caretaking exception with a similar set of facts
       in People v. Carlson, 307 Ill. App. 3d 77, 716 N.E.2d 1249 (1999). The Third District’s
       opinion was pre-Luedemann and considered the community caretaking exception analogous to
       consensual encounters; however, this difference does not affect its conclusion. In Carlson,
       Deputy Nichols observed the defendant’s vehicle parked on the side of the road. Carlson, 307
       Ill. App. 3d at 79, 716 N.E.2d at 1251. Nichols activated his emergency lights and approached
       the vehicle. Carlson, 307 Ill. App. 3d at 79, 716 N.E.2d at 1251. He observed the defendant
       was unconscious in the driver’s seat and could not determine whether he was alive or dead.
       Carlson, 307 Ill. App. 3d at 79, 716 N.E.2d at 1251. The keys were still in the ignition, but the
       car was not running. Carlson, 307 Ill. App. 3d at 79, 716 N.E.2d at 1251. Nichols tapped on the
       window, and the defendant woke up. Carlson, 307 Ill. App. 3d at 79, 716 N.E.2d at 1251. The
       defendant moved his hand, and it appeared he attempted to smoke a cigarette that was not
       there. Carlson, 307 Ill. App. 3d at 79, 716 N.E.2d at 1251.
¶ 54        Nichols asked the defendant to roll down the window. Carlson, 307 Ill. App. 3d at 79, 716
       N.E.2d at 1251. The defendant complied, and Nichols immediately detected a strong odor of
       alcohol. Carlson, 307 Ill. App. 3d at 79, 716 N.E.2d at 1251. After the defendant identified
       himself, Nichols requested him to step outside of the vehicle and produce a driver’s license.
       Carlson, 307 Ill. App. 3d at 79, 716 N.E.2d at 1251. Nichols observed the defendant had
       difficulty locating his license, had bloodshot eyes, was unsteady and confused, and appeared to
       have wet himself. Carlson, 307 Ill. App. 3d at 79, 716 N.E.2d at 1251. Nichols eventually
       arrested the defendant, and the defendant failed a Breathalyzer test. Carlson, 307 Ill. App. 3d at
       79, 716 N.E.2d at 1251.
¶ 55        The Third District held, when Nichols initially approached the defendant, including the
       request for defendant to roll down his window, he was performing under the community
       caretaking function. Carlson, 307 Ill. App. 3d at 81, 716 N.E.2d at 1252. Once the window was
       down, Nichols detected the odor of alcohol, which provided him with a reasonable, articulable
       suspicion defendant was driving under the influence. Carlson, 307 Ill. App. 3d at 79, 716
       N.E.2d at 1251. The court concluded defendant was not seized because there was no evidence
       of coercive circumstances and Nichols was functioning as a community caretaker. Carlson,
       307 Ill. App. 3d at 80-81, 716 N.E.2d at 1251.
¶ 56        In the case at bar, Snow was acting in his community caretaking capacity when he
       approached defendant’s vehicle out of concern no one exited the vehicle after five minutes at
       1:20 a.m. Even though Snow followed defendant because it appeared defendant was
       “extremely focused on driving,” this is of no consequence. This is not remarkable. After Snow
       followed defendant, Snow pulled into an adjacent parking lot to turn around and exit the area
       after he observed no traffic violations had occurred. When Snow noticed no one exited the
       vehicle, he stopped and waited for five minutes. Snow was concerned as to why no one would
       exit the vehicle at this time and place and decided to check on the driver. Snow’s motive for

                                                   - 11 -
       approaching defendant’s vehicle was divorced from detention, investigation, or acquisition of
       evidence.
¶ 57       Snow’s concern legitimately increased when he found defendant slumped over the driver’s
       seat. Snow continued to act in his community caretaking capacity as he attempted to wake
       defendant and radioed for an assisting officer to step up his response time. Snow testified he
       did not know what defendant was experiencing medically. When defendant awakened, he
       raised his middle finger and said either “f*** you, no policia” or “no policia.” This
       communication, coupled with defendant falling asleep within minutes after parking his car,
       taking an unusual route, and Snow’s observation defendant was “extremely focused on
       driving,” raised concerns about his medical status. Considering the totality of the
       circumstances, Snow was acting in his capacity as community caretaker when he seized
       defendant by asking him to open his car door to speak after defendant declined the encounter.
       Defendant’s actions were unusual and gave rise to serious concerns regarding his medical
       status. When defendant opened his car door, Snow detected the odor of an alcoholic beverage,
       and defendant exhibited symptoms of being intoxicated, providing Snow with a reasonable,
       articulable suspicion. At this point, Snow was no longer functioning as a community caretaker,
       and a DUI investigation began.
¶ 58       Similarly to Carlson, after Snow awakened defendant, he asked defendant to open his car
       door (the defendant in Carlson was asked to roll his window down). Carlson, 307 Ill. App. 3d
       at 79, 716 N.E.2d at 1251. The Third District found the officer’s request was part of his
       community caretaking function. Carlson, 307 Ill. App. 3d at 81, 716 N.E.2d at 1252. The main
       difference with the case at bar is defendant declined Snow’s encounter. However, Snow’s
       request for defendant to open his door, which resulted in a seizure, was aligned with his interest
       in defendant’s medical status. Based on the aforementioned circumstances, the seizure was
       reasonable and justified under the community caretaking exception because (1) Snow did not
       have an investigatory purpose and (2) his actions were taken for defendant’s safety.
¶ 59       Nonetheless, defendant cites the Fifth District’s opinion, People v. Robinson, 368 Ill. App.
       3d 963, 859 N.E.2d 232 (2006), to support his contention Snow’s actions were not to check on
       his well-being. In Robinson, Officer Stevens responded to a call to check on the well-being of
       a man in a parked car who appeared to be slumped over the steering wheel. Robinson, 368 Ill.
       App. 3d at 965, 859 N.E.2d at 237. When Stevens approached the car, he noticed the car was
       running, and the man appeared to be unconscious. Robinson, 368 Ill. App. 3d at 966, 859
       N.E.2d at 238. Stevens then tapped on the driver’s window about six times in an attempt to
       wake the driver. Robinson, 368 Ill. App. 3d at 967, 859 N.E.2d at 238. Stevens discovered the
       driver’s door was unlocked, opened it, and spoke to the driver in an attempt to wake him up.
       Robinson, 368 Ill. App. 3d at 967, 859 N.E.2d at 238. The driver did not wake up, and Stevens
       grabbed his jacket and moved his body back and forth to try to wake him. Robinson, 368 Ill.
       App. 3d at 967, 859 N.E.2d at 239.
¶ 60       Stevens dispatched for an ambulance and continued to move the defendant back and forth.
       Robinson, 368 Ill. App. 3d at 968, 859 N.E.2d at 239. The defendant became responsive and
       was mumbling. Robinson, 368 Ill. App. 3d at 968, 859 N.E.2d at 239. Stevens observed the
       defendant had dilated eyes, exhibited slurred and mumbled speech, and had a strong odor of an
       alcoholic beverage on his breath. Robinson, 368 Ill. App. 3d at 968, 859 N.E.2d at 239. Stevens
       asked the defendant if he was okay, which he answered in the positive. Robinson, 368 Ill. App.
       3d at 968, 859 N.E.2d at 240. Stevens then asked if he had anything to drink that night, and the

                                                   - 12 -
       defendant said he had too much to drink. Robinson, 368 Ill. App. 3d at 969, 859 N.E.2d at 240.
       The defendant was charged with aggravated DUI. Robinson, 368 Ill. App. 3d at 964, 859
       N.E.2d at 236.
¶ 61       The Fifth District held Stevens was acting as a community caretaker by waking the
       defendant and asking for his identification. Robinson, 368 Ill. App. 3d at 973, 859 N.E.2d at
       243. Since Stevens was responding to a 911 call, he had a basis to check on the defendant’s
       well-being. Robinson, 368 Ill. App. 3d at 973, 859 N.E.2d at 243. While Stevens was
       performing this community caretaking function, he made observations that arose to a
       reasonable, articulable suspicion the defendant was driving while under the influence of
       alcohol. Robinson, 368 Ill. App. 3d at 973, 859 N.E.2d at 244. In the present case, defendant
       argues the officer in Robinson had a valid reason to check on the well-being of the defendant,
       while Snow “offered no actual impetus for why he approached the vehicle.” Further, defendant
       suggests “the vast majority of Snow’s conduct was not undertaken with the goal of checking on
       [his] well-being.” However, defendant overemphasizes the importance of the fact the officer in
       Robinson responded to a 911 call. A police officer need not wait for a 911 call to perform as a
       community caretaker.
¶ 62       Snow followed defendant because he noticed defendant was driving with what he
       described as “tunnel vision.” Once Snow determined no traffic violations occurred, he pulled
       into in an adjacent lot to exit the area. However, Snow became concerned about defendant’s
       well-being when he did not immediately exit the car. Snow’s concern increased, and after five
       minutes, he decided to approach the vehicle. Snow’s concerns were validated as he approached
       the vehicle and observed defendant passed out and slumped over in the driver’s seat. Nothing
       in the record indicates Snow was investigating a crime or was acting in a role other than as a
       community caretaker. Waiting for five minutes to exit a vehicle does not necessarily give rise
       to an issue of a person’s well-being, but considering the time of day and the circumstances in
       their totality, it was objectively reasonable for Snow to approach defendant’s vehicle, and then
       to rule out a medical emergency.
¶ 63       The trial court did not err when it denied defendant’s motion to suppress evidence, as Snow
       was reasonably functioning as a community caretaker when defendant was seized.

¶ 64                                     B. Aggravating Factors
¶ 65       Defendant argues the trial court imposed an impermissible double enhancement by
       considering his prior DUI convictions as aggravating factors. Defendant did not file a motion
       to reconsider the sentence, and he asks this court to review the issue under the second prong of
       the plain-error doctrine. Alternatively, defendant argues, if this court will not review his
       challenge to his sentence, defense counsel was ineffective for failing to preserve the issue in a
       motion to reconsider the sentence. The State contends defendant’s argument is forfeited
       because he failed to properly preserve the issue and, alternatively, the court did not consider
       any improper factors when it sentenced him and we should decline to address defendant’s
       ineffective assistance argument.

¶ 66                                           1. Forfeiture
¶ 67       Defendant acknowledges he has forfeited this argument by not filing a motion to
       reconsider the sentence in the trial court or objecting at the sentencing hearing. For an issue to
       be preserved for review on appeal, the record must show (1) a contemporaneous objection to

                                                   - 13 -
       the trial court’s error was timely made and (2) the issue was contained in a written posttrial
       motion. People v. Rathbone, 345 Ill. App. 3d 305, 308-09, 802 N.E.2d 333, 336 (2003). The
       forfeiture rule is intended to bar claims from review when they are not first considered by the
       trial court. Rathbone, 345 Ill. App. 3d at 310, 802 N.E.2d at 337. However, defendant requests
       his sentence be reviewed for plain error.

¶ 68                                    2. The Plain-Error Doctrine
¶ 69       The forfeiture rule is not absolute, and Illinois Supreme Court Rule 615(a) (eff. Jan. 1,
       1967) provides that a court of review may review plain errors that affect substantial rights. The
       plain-error doctrine is a narrow and limited exception to the forfeiture rule and allows a
       reviewing court to consider unpreserved error when a clear and obvious error occurred and
       (1) “the evidence is so closely balanced that the error alone threatened to tip the scales of
       justice against the defendant, regardless of the seriousness of the error” or (2) “that error is so
       serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
       judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d
       551, 565, 870 N.E.2d 403, 410-11 (2007). Under this analysis, the defendant bears the burden
       of persuasion. People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d 467, 480 (2005). We begin
       our plain-error analysis by first determining whether any error occurred at all. People v.
       Sargent, 239 Ill. 2d 166, 189, 940 N.E.2d 1045, 1059 (2010).

¶ 70                                     3. Double Enhancement
¶ 71       “A reasoned judgment as to the proper sentence to be imposed must be based upon the
       particular circumstances of each individual case.” People v. Perruquet, 68 Ill. 2d 149, 154, 368
       N.E.2d 882, 884 (1977). These circumstances include the defendant’s criminal history, the
       defendant’s potential for reform, and the recognized interest in protecting the public and
       providing a deterrent. People v. Hestand, 362 Ill. App. 3d 272, 281, 838 N.E.2d 318, 326
       (2005). However, a factor implicit in the offense for which the defendant has been convicted
       cannot be used as an aggravating factor. See People v. Phelps, 211 Ill. 2d 1, 11-12, 809 N.E.2d
       1214, 1220 (2004) (“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” (internal
       quotation marks omitted)). When such a factor is used for a dual purpose, it is referred to as a
       double enhancement. Phelps, 211 Ill. 2d at 12, 809 N.E.2d at 1220.
¶ 72       “The prohibition against double enhancements is based on the assumption that, in
       designating the appropriate range of punishment for a criminal offense, the legislature
       necessarily considered the factors inherent in the offense.” Phelps, 211 Ill. 2d at 12, 809
       N.E.2d at 1220. Whether a trial court considered an improper factor when sentencing a
       defendant is a question of law, which we review de novo. People v. Abdelhadi, 2012 IL App
       (2d) 111053, ¶ 8, 973 N.E.2d 459. There is a strong presumption the trial court based its
       sentencing judgment on proper legal reasoning. People v. Dowding, 388 Ill. App. 3d 936,
       942-43, 904 N.E.2d 1022, 1028 (2009).
¶ 73       Defendant argues the trial court improperly relied on his two prior DUI convictions when it
       sentenced him because they were already inherent in the offense of aggravated DUI. The State
       argues the court properly considered defendant’s prior convictions when it sentenced him to
       explain why a community-based sentence would be inappropriate.


                                                   - 14 -
¶ 74       Defendant relies upon Dowding and Abdelhadi for his assertion his prior DUI convictions
       were improperly used as a double enhancement. In Dowding, the defendant challenged the
       sentence on his aggravated DUI conviction and argued the court improperly considered the
       fact his conduct caused the death of another (a factor inherent in the offense). Dowding, 388 Ill.
       App. 3d at 941, 904 N.E.2d at 1027. At sentencing, the State requested the maximum term of
       14 years’ imprisonment and stated five times the defendant had “ ‘killed someone’ ” or
       “ ‘caused the death of someone.’ ” Dowding, 388 Ill. App. 3d at 943, 904 N.E.2d at 1029. The
       State set forth the following aggravating factors: “(1) the defendant’s conduct caused or
       threatened serious harm; (2) the defendant has a history of prior delinquency or criminal
       activity; and (3) the sentence is necessary to deter others from committing the same crime.”
       Dowding, 388 Ill. App. 3d at 943, 904 N.E.2d at 1029. The trial court considered a number of
       factors at sentencing and stated, “ ‘The factors in aggravation that I do find apply in this case
       are, Number 1, that the defendant’s conduct caused or threatened serious harm. No question,
       this defendant’s conduct in this offense caused the greatest harm there could be, that is the
       death of another person.’ ” Dowding, 388 Ill. App. 3d at 943, 904 N.E.2d at 1029. On review,
       the Second District held the trial court improperly considered the victim’s death as an
       aggravating factor when it expressly stated causing the victim’s death was an aggravating
       factor on which the sentence was based. Dowding, 388 Ill. App. 3d at 943-44, 904 N.E.2d at
       1029 (finding the trial court’s sentence mirrored the State’s argument). The defendant’s
       sentence was reversed, and the court remanded for a new sentencing hearing. Dowding, 388 Ill.
       App. 3d at 946, 904 N.E.2d at 1031.
¶ 75       In Abdelhadi, the defendant challenged the sentence on his aggravated arson conviction
       and argued the trial court improperly considered the threat of harm to others because it was a
       factor inherent in the offense. Abdelhadi, 2012 IL App (2d) 111053, ¶ 6, 973 N.E.2d 459. The
       State argued the following factors in aggravation: “(1) the defendant’s acts endangered or
       could have endangered the lives of one or more people inside the building; (2) the defendant
       had a criminal history; and (3) the defendant was on probation when the crime was
       committed.” Abdelhadi, 2012 IL App (2d) 111053, ¶ 3, 973 N.E.2d 459. When issuing its
       sentence, the trial court stated, “ ‘Specifically in aggravation the Court has considered that the
       conduct caused by the defendant did, in fact, endanger the lives of individuals. That he was on
       probation at the time of the event. Court has considered his criminal history in aggravation.’ ”
       Abdelhadi, 2012 IL App (2d) 111053, ¶ 4, 973 N.E.2d 459.
¶ 76       The Second District found its decision in Dowding controlling. The court held, “we find
       that the trial court’s reference to the defendant’s threat of harm to others, with no elaboration or
       description of that factor, did not amount to merely a mentioning within the ‘nature and
       circumstances’ of the crime. Instead, the mirroring between the factors the State argued in
       aggravation and the factors used by the trial court in sentencing shows that there was, in fact,
       reliance by the trial court on the implicit factor.” Abdelhadi, 2012 IL App (2d) 111053, ¶ 14,
       973 N.E.2d 459. The court found reversing the defendant’s sentence and remanding for a new
       sentencing hearing was proper because it was unclear how much weight the trial court placed
       on the improper factor. Abdelhadi, 2012 IL App (2d) 111053, ¶¶ 20-21, 973 N.E.2d 459.
¶ 77       Defendant argues his case is indistinguishable from Dowding and Abdelhadi because the
       State argued his prior DUI convictions in aggravation, similar to the harm caused or threat of
       harm caused elements considered in Dowding and Abdelhadi, respectively. Defendant points
       out, “the State went on to explain that [defendant] had a 2010 and 2005 DUI conviction, as


                                                    - 15 -
       well as a prior theft conviction, before asking the court to sentence [him] to seven years, the
       maximum possible sentence, because of [his] ‘criminal history and [his] repeated violation of
       the DUI statute.’ ” Defendant suggests the trial court adopted the State’s argument when it
       said, “the State has articulated that one of the factors in aggravation present is the [d]efendant’s
       record of criminality.” The court’s only direct statement referencing defendant’s two prior
       DUI convictions was, “[d]efendant has continued to drink and drive without a license.”
¶ 78       Although not cited by either party, we find People v. Morrow, 2014 IL App (2d) 130718,
       39 N.E.3d 44, instructive on this issue, as it addressed both Dowding and Abdelhadi in a
       factually similar case. In Morrow, the defendant was convicted of aggravated DUI (with at
       least five prior DUI convictions), a Class X felony. Morrow, 2014 IL App (2d) 130718, ¶ 1, 39
       N.E.3d 44. The defendant argued the trial court erred when it used his prior DUI convictions in
       aggravation when the convictions were used to elevate the offense to a Class X felony.
       Morrow, 2014 IL App (2d) 130718, ¶ 1, 39 N.E.3d 44. At sentencing, the State presented
       evidence the defendant had 7 DUI convictions between 1987 and 1995, had 10 total DUI
       arrests (two were reduced to reckless driving), was sentenced to prison twice for aggravated
       DUI, and had an alcohol-related conviction of violation of an order of protection in 2003 and
       an arrest for criminal damage to state property in 2009. Morrow, 2014 IL App (2d) 130718,
       ¶ 4, 39 N.E.3d 44. The State referred to the defendant’s prior DUI incidents and argued he was
       a danger to the public. The State requested he be sentenced to 15 years’ imprisonment.
       Morrow, 2014 IL App (2d) 130718, ¶ 5, 39 N.E.3d 44.
¶ 79       Before issuing its sentence, the trial court stated, “there are a number of people in this
       society that are abused as children and they don’t go out to repeatedly violate the driving under
       the influence of alcohol laws of this state or any state on a repeated basis.” (Internal quotation
       marks omitted.) Morrow, 2014 IL App (2d) 130718, ¶ 7, 39 N.E.3d 44. The Second District
       quoted the trial court and stated, in relevant part, as follows:
                “[T]he vast majority of offenders ‘are so impacted by that one arrest, either the public
                shame or self-reflection how they got there, they never, ever put themselves in that
                position again. But yet you find yourself here for the eighth violation, the eighth time.’
                Reciting defendant’s previous DUI convictions, along with his other convictions, the
                court stated that all the trips to prison did not slow defendant down. Indicating a
                concern for public safety and citing the need for deterrence, the court sentenced
                defendant to 13 years’ incarceration.” (Emphasis added.) Morrow, 2014 IL App (2d)
                130718, ¶ 8, 39 N.E.3d 44.
¶ 80       The Second District held Morrow was distinguishable from Dowding and Abdelhadi. It
       found the trial court’s statements went only to the nature and circumstances of the offense and
       to other proper factors. Morrow, 2014 IL App (2d) 130718, ¶ 19, 39 N.E.3d 44. Unlike
       Dowding and Abdelhadi, the court did not solely rely on the fact defendant had at least five
       prior DUI convictions. Morrow, 2014 IL App (2d) 130718, ¶ 8, 39 N.E.3d 44. The trial court
       never specifically stated it was considering the prior convictions in aggravation, and the State
       did not ask it to. Morrow, 2014 IL App (2d) 130718, ¶ 8, 39 N.E.3d 44. The State’s arguments
       showed that it was discussing the prior convictions to address recidivism, inability to learn
       from prior punishments, deterrence, and the protection of society. Morrow, 2014 IL App (2d)
       130718, ¶ 8, 39 N.E.3d 44.
¶ 81       We find our case more comparable to Morrow and conclude the trial court did not
       improperly consider defendant’s prior DUI convictions at sentencing. The State in this case did

                                                    - 16 -
       not focus solely on defendant’s DUI convictions when it discussed his criminal history. When
       the court stated, “The State articulated that one of the factors in aggravation present is the
       [d]efendant’s record of criminality,” it was not improper. The court went on to discuss
       defendant’s prior theft conviction and the multiple petitions to revoke that were filed,
       evidencing his inability to comply with a community-based sentence. Additionally, similarly
       to Morrow, the discussion regarding defendant’s prior DUI convictions went only to the nature
       and circumstances of the offense and other proper factors. Morrow, 2014 IL App (2d) 130718,
       ¶ 19, 39 N.E.3d 44; see People v. Thomas, 171 Ill. 2d 207, 227-28, 664 N.E.2d 76, 87 (1996)
       (finding “while the fact of a defendant’s prior convictions determines his eligibility for a Class
       X sentence, it is the nature and circumstances of these prior convictions which, along with
       other factors in aggravation and mitigation, determine the exact length of that sentence”
       (emphases in original)).
¶ 82       The State presented defendant’s criminal history to show defendant’s lack of rehabilitative
       potential, the need for deterrence, and the concern it had over the public’s safety. After
       reviewing the record as a whole, no evidence indicated the court improperly considered
       defendant’s prior DUI convictions. Because no error occurred, defendant cannot establish
       plain error. Since we disposed of defendant’s double-enhancement argument under plain error,
       we need not address whether counsel was ineffective for failing to properly preserve the issue
       for appellate review.

¶ 83                                       III. CONCLUSION
¶ 84       We affirm the trial court’s judgment. As part of our judgment, we award the State its $75
       statutory assessment against defendant as costs of this appeal.

¶ 85      Affirmed.




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