Appeal from Circuit Court of Sangamon County No. 11CF594 Honorable Leslie J. Graves, Judge Presiding.
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Turner concurred in the judgment and opinion.
¶ 1 In February 2012, a jury convicted defendant, John J. Halerewicz, of driving under the influence of alcohol (DUI), aggravated DUI with a revoked license, and driving while his driver's license was revoked. In April 2012, the trial court sentenced defendant to concurrent terms of 10 years' imprisonment for aggravated DUI and 3 years for driving while his license was revoked.
¶ 2 Defendant appeals, arguing (1) the trial court erred in refusing to define the term "ordinary care" for the jury, (2) Class X sentencing was improper where it only applies to six or more aggravated DUI convictions and defendant's instant aggravated DUI conviction was not his sixth such conviction, and (3) the court abused its discretion in sentencing defendant to a term of imprisonment. We affirm.
¶ 3 I. BACKGROUND
¶ 4 The State charged defendant with (1) DUI (count I), (2) aggravated DUI with a revoked license (count II), and (3) driving while his license was revoked (count III).
¶ 5 During defendant's February 28, 2012, jury trial, Springfield police officer Mark Marinelli testified he was performing a premises check at a gas station when he observed a silver van strike the curb as it pulled into the parking lot. An individual exited the vehicle and tripped over a curb as he entered the gas station. Because a passing train obscured Marinelli's view, he did not observe the individual reenter the van. However, Marinelli called other officers to help search for the van. Officers located the van a few blocks away approximately five to seven minutes later. Once the van was relocated, Marinelli observed it rolling through a stop sign. According to Marinelli, the van did not make a complete stop until after the white line. The driver of the van also failed to properly use his turn indicator. At that point, Marinelli initiated a stop of the vehicle.
¶ 6 Marinelli identified defendant as the driver of the van. Marinelli observed defendant had "glassy eyes" and "slurred speech." Marinelli also smelled a "strong odor of alcohol coming from inside the vehicle." Marinelli testified defendant admitted consuming five or six beers. At that point, Marinelli turned the traffic stop over to Ryan Maddox, a DUI officer, who was already assisting with the stop.
¶ 7 Officer Maddox testified he responded to Marinelli's request to look for the van because he believed the driver was possibly impaired. Once Maddox located the vehicle, he "paced" it "traveling 20 in a 30 mile an hour zone." Maddox also testified defendant failed to signal a right turn 100 feet prior to the turn as required. Instead, defendant signaled the turn "very close to 10 feet" before the turn. Once the vehicle was stopped, Maddox observed the driver, whom he identified as defendant, had glassy, bloodshot eyes. Defendant's eyelids were "heavy" and he displayed slow, slurred speech. Maddox testified the smell of alcohol on defendant's breath was "overwhelming." Defendant's head was swaying back and forth while he was sitting in the driver's seat.
¶ 8 Defendant stated he was coming from a bar where he worked and had consumed "five or six beers." Defendant admitted his driver's license was revoked. The State then introduced a certified copy of defendant's driving abstract, which showed defendant's license was revoked at the time of the stop. Defendant refused to take any field-sobriety tests, stating it was not in his best interest to do so. When Maddox asked why defendant did not want to take the tests, defendant told him he did not know if he would be able to pass them. When Maddox asked defendant if it "wasn't that good of a decision [for him] to drive, " defendant stated, "probably."
¶ 9 Maddox observed defendant was "very slow" in exiting the van. Maddox testified "it appeared he was trying to gain his balance." In addition, defendant's "walking gait was very slow" and his body was noticeably "swaying back and forth as he stood." At that point, Maddox arrested defendant for DUI. The State introduced a video taken from Maddox's squad car, which was played for the jury. While at the jail, defendant refused to take a Breathalyzer test, stating it would not be in his best interest to do so.
¶ 10 Thereafter, the jury convicted defendant of DUI, aggravated DUI, and driving while his license was revoked.
¶ 11 On March 14, 2012, defendant filed a posttrial motion, which the trial court denied.
¶ 12 During defendant's April 10, 2012, sentencing hearing, the trial court found because this was defendant's sixth DUI offense, he was eligible for Class X sentencing. Counts I (DUI) and II (aggravated DUI) merged for sentencing purposes, and the court sentenced defendant as stated.
¶ 13 On April 18, 2012, defendant filed a motion for reduction of sentence, arguing (1) the trial court erred in finding he violated section 11-501(a)(1) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501(a)(1) (West 2010)) for the sixth time, and (2) the sentence was excessive where the court failed to adequately consider imprisonment would endanger his medical condition.
¶ 14 Following an April 23, 2012, hearing, the trial court denied defendant's motion for reduction of sentence. During the hearing, the court noted defendant could have received a lesser sentence had he provided any indication he understood the danger he posed to the community and the consequences of his actions. Instead, the court observed defendant's attitude demonstrated a "lack of remorse" and the sense he "was a victim in this situation."
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant argues (1) the trial court erred in refusing to define the term "ordinary care" for the jury, (2) Class X sentencing was improper where it only applies to six or more aggravated DUI convictions and defendant's instant aggravated DUI conviction was not his sixth such conviction, and (3) the court abused it discretion in sentencing defendant to a term of imprisonment.
¶ 18 A. Jury-Instruction Claim
¶ 19 Defendant argues the trial court erred in refusing to define the term "ordinary care" for the jury. Defendant concedes his trial counsel failed to object and preserve the issue in his posttrial motion. Thus, absent plain error, defendant has forfeited review of the issue on appeal. However, defendant urges us to review the issue for plain error.
¶ 20 Under the plain-error doctrine, we will review an otherwise forfeited issue where a clear and obvious error occurs and either (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) the "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. Sargent, 239 Ill.2d 166, 189, 940 N.E.2d 1045, 1058 (2010). "If error is found, the court then proceeds to consider whether either of the two prongs of the plain-error doctrine have been satisfied. Under both prongs, the burden of persuasion rests with the defendant." Sargent, 239 Ill.2d at 189-90, 940 N.E.2d at 1059. Before we can decide if there was plain error, however, we must first determine if any error occurred at all. For the following reasons, we conclude because there was no error, there can be no plain error. See People v. Johnson, 218 Ill.2d 125, 139, 842 N.E.2d 714, 722 (2005).
¶ 21 Prior to deliberations, the trial court instructed the jury as follows: "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). During deliberations, the jury asked the court to define the term "ordinary care." Thereafter, the following colloquy took place between the court, the State, and defendant's trial counsel:
"THE COURT: We have a question. [']How do you define ["]ordinary care?["]['] Okay, what I usually say in these circumstances, [is] [']it is for you to determine the definition of ordinary care based on your experiences in life, based on your common sense and ...