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People v. Winchester

Court of Appeals of Illinois, Fourth District

November 22, 2016

MARK N. WINCHESTER, Defendant-Appellant.

         Appeal from Circuit Court of Champaign County No. 13CF1192, Honorable Richard P. Klaus, Judge Presiding.

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

         ¶ 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 ...

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