from the Circuit Court of Champaign County, No. 13-CF-1192;
the Hon. Richard P. Klaus, Judge, presiding.
Michael J. Pelletier, Ellen J. Curry, and Ian C. Barnes
(argued), of State Appellate Defender's Office, of Mt.
Vernon, for appellant.
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.
PRESIDING JUSTICE KNECHT delivered the judgment of the court,
with opinion. Justices Steigmann and Appleton concurred in
the judgment and opinion.
KNECHT, PRESIDING JUSTICE
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
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
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
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
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"
"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 ...