Opinion
No. 1-15-0828
08-28-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEEF CORNIEL, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. 14 CR 7499 Honorable James M. Obbish, Judge Presiding. PRESIDING JUSTICE CONNORS delivered the judgment of the court.
Justices Harris and Simon concurred in the judgment.
ORDER
¶ 1 Held: The State met its burden of proving defendant guilty beyond a reasonable doubt of aggravated DUI when it presented officer testimony establishing that defendant drove at a high rate of speed, ignored a traffic signal, had slurred speech and bloodshot eyes, walked in an unstable manner, behaved belligerently, and urinated on himself while in police custody; the trial court erred during defendant's sentencing hearing when it considered in aggravation a felony that was actually a misdemeanor; and the State gave proper notice of its intention to sentence defendant as a class 2 offender; affirmed and remanded with directions. ¶ 2 Defendant, Steef Corniel, was charged with aggravated driving under the influence of alcohol (aggravated DUI), after he was observed speeding and ignoring a traffic signal by Chicago police officers. After a bench trial, Defendant was convicted, and sentenced to five years in prison as a result of his status as a class 2 offender based on his prior convictions for driving under the influence. Defendant appeals, arguing that the State failed to prove him guilty beyond a reasonable doubt, that his five-year sentence was in error when the trial court mistakenly referred to one of his prior convictions as a felony, when it was actually a misdemeanor, and that the charging instrument did not sufficiently list his prior convictions so as to provide the notice required under the applicable statute. For the reasons that follow, we remand this matter to the circuit court for the limited purpose of directing the trial court to determine whether the mistaken belief that the prior crime was a felony affected the length of the sentence.
¶ 3 BACKGROUND
¶ 4 On April 30, 2014, Defendant was charged by information with five counts of aggravated DUI for violating section 11-501(a)(2) of the Illinois Criminal Code (Code) (625 ILCS 5/11-501(a)(2) (West 2012)). Each of the five counts of the information stated that defendant had driven or was in actual physical control of a motor vehicle within the State of Illinois while under the influence of alcohol. The first count of the information further stated that:
"THE STATE SHALL SEEK TO SENTENCE HIM AS A CLASS 2 OFFENDER PURSUANT TO SECTION (d) (1) (A) / (2) (C), IN THAT HE HAS COMMITTED THREE PREVIOUS VIOLATIONS OF CHAPTER 625 OF THE ILLINOIS COMPILED STATUTES ACT 5 SECTION 11-501 (a) OR A SIMILAR PROVISION."The second count also sought to sentence defendant as a class 2 offender and was identical to count 1, except that it stated that defendant had committed 2 previous violations, rather than 3. Counts 3 and 4 sought to sentence defendant as a class 4 offender. Count 5 alleged that defendant did not possess a driver's license or permit at the time of his arrest, but did not specify which class was at issue.
¶ 5 Bench Trial
¶ 6 Defendant's case proceeded to a bench trial on December 16, 2014. The State called two witnesses, Officer Rhianna Jones and Officer Hina Jafri of the Chicago police department and defendant called one witness, Robert Hernandez. ¶ 7 Officer Jones testified that at approximately 11:15 p.m. on December 14, 2013, she and her partner, Officer Jafri, were on duty in a marked squad car in the 11th district around the area of Flournoy and Sacramento. Officer Jones was driving and Officer Jafri was in the passenger seat. Officer Jones stated that while facing eastbound at the intersection of Flournoy and Sacramento, she "saw a large van traveling northbound, at a high rate of speed, pass several vehicles on the right." She then turned on her emergency equipment and attempted to pull over the van. She testified that she saw the van disregard a stop sign and continue to drive northbound where it then came to a stop at a red light at Harrison and Sacramento. Officer Jones testified that her partner, who was in uniform, exited the squad car and approached the passenger side of the van while it was stopped at the red light. She further stated that, "[w]hen my partner approached the vehicle on the passenger side, after the light turned green, that vehicle sped off. And continued northbound on Sacramento." Officer Jones then followed the van and alerted other 11th district units that the van had taken off at a traffic stop. Officer Jones stated that she continued to follow the van until it finally pulled over, approximately four blocks from the original location. ¶ 8 Officer Jones further testified that once the vehicle was curbed, she approached and opened the driver's side door and requested license and insurance from the driver. When asked if she noticed anything unusual when she opened the door of the van, Officer Jones stated that she "noticed a strong smell of alcohol. When he began to speak to me, after I asked for license and insurance, I noticed that his voice was mumbled and his speech was slurred." Also, she stated that after she asked defendant to get out of the vehicle, he stumbled a little and she noticed a large, wet stain on the front of defendant's coveralls in the crotch area. Officer Jones testified she also noticed that defendant's eyes were bloodshot. She stated that defendant was not able to produce a license and insurance. She also stated that she held onto defendant's coveralls in order to lead him to the rear of the van because he "walked sideways" and was "unable to maintain his balance." Officer Jones then placed defendant into custody for DUI investigation and after a custodial search, marijuana was recovered from the inside pocket of defendant's coveralls. The officer further testified that defendant was then taken back to the police station and when asked what happened there, she stated:
"In the station, he was very argumentative with my partner. His speech continued to slur. He was refusing to cooperate as far as doing any field sobriety test. She was able to complete one test, but the rest he refused. And he refused the breathalyzer.Officer Jones testified that she knew defendant had urinated because she "noticed a puddle forming underneath [defendant] on the floor." ¶ 9 On cross-examination, Officer Jones testified that on the night in question, it was cold outside and although there was snow and ice on the ground, the streets were not full of snow. She also testified that in addition to her partner (Officer Jafri) there was another officer in the car, and that when she stopped her car behind defendant's van at the red light on Harrison, Officer Jafri and the other officer got out of the vehicle. Officer Jones stated that after defendant drove away when the light turned green, she followed him alone. She also testified that she did not recall finding any open alcohol containers or anything of that sort in defendant's van. When asked whether she had mentioned that defendant stumbled in any of the reports she prepared, Officer Jones responded, "No, I did not." Further, after seeing the alcohol and drug influence report that she prepared, Officer Jones acknowledged that she indicated that defendant had a physical problem that may interfere with the sobriety test, namely, that his legs were uneven. Officer Jones also testified that she never looked for paint thinner in defendant's van. She further recognized that the smell of alcohol does not indicate how many drinks a person has had, and that bloodshot eyes could result from a person's exhaustion. ¶ 10 Officer Jafri testified that on December 14, 2013, at approximately 11:15 p.m., she was working with Officer Jones when she saw a white vehicle heading northbound at a high rate of speed at the intersection of Polk and Sacramento. Officer Jafri also stated that she saw the vehicle disregard the traffic control device on Sacramento and Flournoy, and that she and Officer Jones then attempted to curb the vehicle. Officer Jafri testified that the van then accelerated and fishtailed. She stated that the van stopped at Harrison and Sacramento because there was a red light. Officer Jafri testified that she and the third officer in the car, Officer Priscilla Johnson, got out to go talk to the driver. Officer Jafri specifically testified that, while in uniform, she "knocked on the window of the van" and "told him to roll down the window" but the driver disobeyed her order and drove off northbound on Sacramento. She then radioed-in that a van that they had attempted to curb had taken off. Officer Jafri stated that someone picked her up from where Officer Jones left her and took her to Officer Jones's subsequent location. At the location where the van had eventually been curbed, Officer Jafri saw defendant being assisted out of his vehicle by Officer Jones. Officer Jafri stated that she helped Officer Jones walk defendant to the back of the van because he was unstable. ¶ 11 Regarding unusual patterns in defendant's speech, Officer Jafri testified that she only remembered his "slur." She also stated that she could smell alcoholic beverage on defendant's breath, and that she was able to do observe this smell "[b]ecause the way [defendant] was speaking, we were leaning in to listen to what he was saying." Officer Jafri testified that she noticed "a wet spot right by his crotch area." At the police station, defendant allowed Officer Jafri to conduct the Nystagmus test, which required defendant to follow the tip of a pen with his eyes, but refused the one-leg stand and the walk and turn tests. Officer Jafri stated that although she became aware that defendant had leg unevenness, his condition was not brought up in his refusal to participate in the other testing. When describing defendant's demeanor, Officer Jafri testified that he was "belligerent," cursed at her and Officer Jones, and was very aggressive at times. Officer Jafri further stated that she noticed defendant had urinated on himself in the processing room. When asked whether she formed an opinion as to whether defendant was under the influence of alcohol while he was driving, Officer Jafri responded that "[h]e was definitely under alcohol impairment." ¶ 12 On cross-examination, when asked about when she approached defendant's passenger-side window, Officer Jafri stated that defendant "actually turned, looked at me, and then took off." Officer Jafri also testified that she stands five foot, three inches tall, and that she was not sure how much of her defendant had seen. Officer Jafri admitted that she that did not use the word "belligerent" in her report, but had described defendant as "very argumentative." ¶ 13 The State then introduced into evidence a certified abstract showing that defendant did not have a valid license on the date of his arrest. The parties stipulated to defendant's birth date and the State rested. ¶ 14 For his case-in-chief, defendant called Robert Hernandez, who testified that on December 14, 2013, he was the supervisor on the construction jobsite at 111th and Kedzie, where defendant worked that day. The work unit that day consisted of Hernandez, defendant, and two other men. Hernandez stated that they worked a double shift that started at 7 a.m. The men took a long lunch because they knew they had a long day, and left the jobsite at about 10 p.m. Hernandez stated that the jobsite at issue consisted of "[m]ainly construction of these units. Paneling, cement painting. Whatever it took. Rehabbing the whole place, electrical and everything." On the particular day in question, Hernandez stated that defendant did "patching," "hanging up cabinets," and "painting and drywall." Hernandez acknowledged that defendant worked with paint thinner, and that paint thinner was in the company van that defendant drove from the jobsite. When asked if he recalled defendant drinking on the job that day, Hernandez responded "Nobody is allowed to drink on the job. They would be terminated." Hernandez further stated that he did not observe defendant appear intoxicated. ¶ 15 On cross-examination, Hernandez testified that the last time he saw defendant on the night at issue was at 10 p.m. when he left the jobsite. On re-direct, Hernandez testified that he lives in Cicero and it usually takes home 45 minutes to get home from the jobsite. However, on that night, it took between one and a half and two hours because "the snow was coming down." The defense then rested its case. ¶ 16 The State waived its closing argument, and reserved rebuttal. In its closing, the defense argued that a not guilty verdict was proper where there was not enough evidence of intoxication. Defense counsel specifically contended that defendant's driving was "not particularly terrible" because he merely ran one stop sign, and may not have seen Officer Jafri's uniform when she approached his passenger side window. Further, the defense emphasized the following factors: the weather was bad; there were no field tests conducted; the paint thinner fumes could have accounted for the smell of alcohol; and defendant's bloodshot eyes could have been due to exhaustion. ¶ 17 In rebuttal, the State characterized the events in question as defendant "fleeing from the police when they had their strobe lights on and their sirens going." The State argued that defendant driving off when the light turned green, coupled with his muddled speech, his inability to balance himself, his belligerence at the police station, his urination on himself, and his refusal to participate in further testing are all indicative of someone who is under the influence of alcohol. The State acknowledged that perhaps standing alone, each of these examples of defendant's conduct would not be enough to show intoxication, but when taken together, they amount to sufficient evidence to meet the State's burden. ¶ 18 The trial court found defendant guilty of aggravated DUI on all counts. The trial court recognized both of the State's witnesses and defendant's witness as being credible. However, the court also noted that Hernandez was with defendant for a substantial part of the day, but was not present when defendant was pulled over. In reaching its ultimate decision, the trial court stated:
He also urinated while seated in the processing room, on himself and the floor inside the processing room."
"The [d]efendant, when speaking to the officers, has slurred speech. And mumbled as well. When he's asked to step out of the van that he'd been driving, officers see that he's got a large wet stain in the crotch of his pants. Leading to the reasonable
inference that he's urinated on himself while he was driving the van. Or as he was being pulled over by the police.
When he steps out, he starts stumbling. He's walking sideways. Again, his speech is slurred. He has to be assisted. Officers had to actually grab the coveralls he's wearing to support him. He's taken into custody, based on his inability to produce a driver's license or proof of insurance.
He's taken to the station. He's belligerent. He refuses certain field tests that were offered to him by the police. Again, while he's in the processing room of the Chicago Police station, he urinates on himself a second time. A puddle forms underneath him as he's sitting there. He doesn't ask to go to the bathroom. No evidence that he asked anybody to go to the bathroom. No evidence that he was refused. He sits there, and urinates on himself.
There is some suggestion that he has some sort of physical condition that might have prevented him from complying with some of that testing, but there is no evidence to that. There is some suggestion. He said that at some point in time, but there is no evidence that that's the reason he refused.
***
But I can't imagine somebody urinating on themselves, at least once. And I think the only reasonable inference is that he did it twice. Once in his company van and once while he's sitting in the police station. That to me is pretty strong evidence that the officer's testimony that in her opinion he was under the influence is a pretty solid opinion."
¶ 19 Posttrial Motion and Sentencing
¶ 20 On January 14, 2015, defendant filed a motion for a new trial, arguing that the State failed to prove him guilty beyond a reasonable doubt. The motion also asserted that the court erred when it commented on defendant's lack of evidence during its ruling, which was improper burden-shifting. ¶ 21 On February 5, 2015, the State filed a memorandum in support of defendant being found guilty of aggravated DUI, asking that the court confirm that the State was not required to prove defendant's prior DUIs, and that defendant's designation as a class 2 felony offender would be determined at sentencing. ¶ 22 On February 9, 2015, the defense filed its sentencing memorandum, alleging that an Apprendi violation occurred here because the State did not disclose information to the defense about the specific dispositions of defendant's alleged prior violations. Defendant, therefore, argued that the State should not be able to present evidence of the prior convictions at sentencing where it did not give adequate notice pursuant to section 111-3(c) of the Code. ¶ 23 Also on February 9, 2015, the court conducted a hearing on defendant's motion for a new trial. Prior to this hearing, a presentence investigation (PSI) report was prepared. In relevant part, the PSI reflected that in 1999, defendant was sentenced to two years' probation for attempted tampering with a motor vehicle. In support of his motion for a new trial, defense counsel argued that there was no evidence of open alcohol found in defendant's van. The defense also pointed out that the court "commented on the lack of evidence as to a physical incapability of [defendant]," and argued that because defendant did not assert any affirmative defenses, the court improperly shifted the burden onto defendant. The court reviewed the transcript from its ruling after the bench trial and denied the motion for new trial, stating that it had not shifted the burden onto defendant, but instead, was merely referring to the suggestion made by defense counsel on his cross-examination of one of the officers that defendant could not have possibly performed the other sobriety tests due to his physical condition. ¶ 24 The court then addressed defendant's sentencing memorandum, which contained two issues. Regarding the first issue, defense counsel argued that defendant should be sentenced as a class 4 offender because the charging document only states that defendant committed three previous violations, but does not say what those violations were or give a case number. Defense counsel asserted that the second issue involved an Apprendi violation because the State had not even provided the case numbers for the two Florida convictions that it was seeking to use to enhance defendant's sentence. The defense represented to the court that it was unable to confirm that both Florida convictions were, in fact, defendant's because one of the convictions was not listed under his name in the county clerk's office records. The court stated that, "[i]f the parties need more time to investigate the circumstances surrounding prior convictions, I think that would [be] an appropriate motion to say we need more time and ask for it, and I think I would grant it, I think already have granted it, but I will grant it again." The court noted that, "I don't think that the State is obligated beyond informing the defendant in the charging instrument that they are, in fact, seeking to sentence him to something that would be extended or above the norm based on what the State alleges ultimately they will be able to prove at a sentencing hearing." ¶ 25 The State then produced a certified copy of defendant's driving abstract from Florida that reflected two previous violations. Defense counsel argued that driving abstracts are often incorrect, which is why it was important to determine the nature of the discrepancy between the clerk's office and the DMV. Specifically, the defense noted that although the driving abstract only showed defendant's name, the county clerk's automated system reflected that one of the violations listed on the abstract was associated with a person named "Cliff Knoxhound," not Steef Corniel. The following exchange subsequently occurred:
"THE COURT: I guess I sort of misconstrued some of your previous comments. I thought maybe the abstract was in a different name. But what I'm seeing obviously from Florida is everything in the name of Corniel Steef.The court then granted defense counsel a short continuance. ¶ 26 This case ultimately proceeded to sentencing on February 26, 2015. In aggravation, the State presented certified driving abstracts from Illinois, reflecting one previous DUI, and from Florida, reflecting two previous DUIs. The State also pointed out that defendant does not seem to have much insight into his alcohol consumption because he denies that he drinks at all. Thus, the State asked that defendant receive a sentence greater than the minimum. In mitigation, the defense stated that defendant is engaged and grew up in Chicago. The defense further stated that "other than DUIs, other than the alcohol history, he doesn't have any other criminal history." The court responded, "[h]e got a felony conviction, tampering with a motor vehicle, in 1999, two years['] probation." After speaking with defendant, defense counsel apologized to the court and stated that defendant recalled that case and did get two years' probation for it. The defense also argued in mitigation that although defendant's family is in the Dominican Republic, defendant's brother that he is close with lives here. Also, defense counsel stated that defendant has three teenage children, a significant work history, and is not in good physical condition. The defense requested the minimum sentence. ¶ 27 Defendant spoke in allocution, stating that he realized he has a mental issue, and that his behavior was what made this case happen. Specifically, defendant stated: "So now I know, all I have to do is just blow and this would have been done and over with a long time ago." When asked why it would have been over if he had done a breathalyzer test, defendant stated, "[b]ecause it would have came back negative. I wouldn't have no alcohol in my system." ¶ 28 In handing down defendant's sentence, the court told defendant that he was convicted because the State proved him guilty beyond a reasonable doubt. The court went on to state that it had never had a DUI case where the driver urinated on himself in the police station. Thus, the court stated that defendant's assertion that had he taken the breathalyzer he would have blown zeros was "absurd." All of the counts were merged and defendant was ultimately sentenced to five years in prison. The court specifically stated:
MS. NEWTON [Assistant Public Defender]: Just according to the department of motor vehicles. It appears the department of motor vehicles and the clerk's office in [the] same county have different information.
THE COURT: As we're well aware, many individuals use factitious [sic] names when they get arrested sometimes to avoid law enforcement and the court system being aware of his background. But they have listed or at least Florida decided that those other DUI situations were Corniel Steef. And Illinois in their certified copy of his driving abstract also seems to put down Mr. Steef.
I guess I might give you a continuance. But isn't this something that [can] be readily obtained by you speaking with Mr. Steef here? ***
MS. NEWTON: He is not an accurate historian, your Honor.
THE COURT: You're going to take a continuance to try to show that it's not him and it's him, that's not exactly mitigating in my mind."
"The defendant will be sentenced, based on his prior felony conviction and the fact that he refuses to try to protect society from himself, because he just continues to drive under the influence of alcohol, whether it's Florida or Chicago, even though he was so polluted because he couldn't control his bladder, five years in the Department of Corrections."¶ 29 When admonishing defendant regarding his appellate rights, the court stated:
"Sir, you have a right to appeal the sentence of this court. You have a right to appeal my decision when I found you guilty. You have to file a [n]otice of [a]ppeal within 30 days of today's date. In order to do that, it has to be in writing filed with the [c]lerk of the [c]ircuit [c]ourt.Defendant responded in the affirmative. Defense counsel then asked leave to file their motion to reconsider sentence. The court reviewed the motion, and denied it. The defense then asked leave to file its notice of appeal, which was granted. Thus, defendant filed his timely notice of appeal on February 26, 2015.
If you want to appeal the sentence, before you can do that, you first have to file a motion asking me to reconsider the sentence. Once that has been ruled upon, you have 30 days to file your notice of appeal.
If you don't file the motion to reconsider the sentence in writing, then your 30 days to file your [n]otice of [a]ppeal begins today.
Do you understand your post trial and appellate rights, sir?"
We note that the PSI, in fact, reads "attempt temper with motor vehicle." However, based on the parties' briefs and the record on appeal, it is clear that this should read tamper, not temper.
¶ 30 ANALYSIS
¶ 31 Defendant raises three primary arguments on appeal: (1) the State failed to prove defendant guilty beyond a reasonable doubt; (2) defendant's sentence was due to a mistake of fact because the judge found aggravating a supposed prior felony that was actually a misdemeanor, which requires resentencing; and (3) the charging instrument failed to specify the prior offenses that would allow defendant's sentence to be enhanced to the class 2 range, which also requires resentencing. We address each issue in turn.
¶ 32 Defendant's Guilt Beyond a Reasonable Doubt
¶ 33 Defendant first argues that the State failed to prove beyond a reasonable doubt that he drove while intoxicated. "To sustain a conviction for aggravated driving under the influence of alcohol, the prosecution at trial must prove the defendant (1) drove a vehicle, and (2) did so while under the influence of alcohol." People v. Robinson, 368 Ill. App. 3d 963, 983 (2006). "Where a defendant challenges the sufficiency of the evidence to sustain his conviction, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Ciechanowski, 379 Ill. App. 3d 506, 516 (2008). The appellate court's job is not to second-guess the trial court or re-try the defendant on appeal. Robinson, 368 Ill. App. 3d at 983. ¶ 34 "Credible testimony from the arresting officer is sufficient to sustain a conviction for driving under the influence of alcohol; no scientific proof of intoxication need be offered in order to sustain the conviction." Id. Additionally, examples of relevant evidence regarding the defendant's mental and physical impairment include: testimony by an officer as to the defendant's appearance, speech or conduct, testimony that the officer smelled alcohol on the defendant's breath, and testimony that the defendant failed a sobriety test. Id. ¶ 35 In this case, defendant argues that the State failed to prove that he was under the influence of alcohol. Specifically, defendant asserts that the State did not meet its burden where the two officers' testimony only presented circumstantial evidence of intoxication and the defense's witness, who was found credible, provided alternate reasons for defendant's behavior. The State responds that the evidence established defendant's guilt beyond a reasonable doubt where the police officers observed defendant engage in the following conduct: drove off during a traffic stop, stumbled out of his vehicle, walked in an unstable manner, had a wet stain above his crotch upon exiting his vehicle, had slurred speech, had breath that smelled of alcohol, and urinated on himself while in the police station. ¶ 36 We find that the record sufficiently demonstrates evidence beyond a reasonable doubt that defendant was under the influence of alcohol when he was pulled over on December 14, 2013. We find that the testimony of either Officer Jones or Officer Jafri, standing alone, was sufficient to prove defendant's guilt. Contrary to defendant's assertion that the officers could not keep their stories straight, each officer was found to have testified credibly by the trial court. Additionally, we do not agree with defendant's contention that the officers' testimony was not clear and consistent. Each officer observed defendant drive at a high rate of speed, fail to curb his vehicle, slur his words, smelled alcohol on his breath, observed his inability to walk from the front of the van to the back without assistance, observed his belligerent and aggressive behavior at the police station, and observed the wet stain on defendant's coveralls when he exited the vehicle and subsequently observed the puddle that resulted from defendant's second urination at the police station. All of this conduct is relevant evidence regarding defendant's mental and physical impairment. See Robinson, 368 Ill. App. 3d at 983. As a result, the State clearly presented sufficient evidence of defendant being under the influence of alcohol to prove his guilt beyond a reasonable doubt. ¶ 37 Although defendant presented credible testimony from Hernandez that supported an alternate theory, we do not find that his testimony lessens the sufficiency of the overwhelming evidence presented by the State. Defendant argues that Hernandez's testimony establishes that defendant did not have time to stop for drinks on his way home. Defendant also points out that no open alcohol containers were found in the van. We recognize that this could be viewed as circumstantial evidence that defendant was not drinking when he was pulled over but it does not take away from the State's abundant evidence that defendant was, in fact, under the influence of alcohol, regardless of when it was consumed. Merely because the officers did not find an open container does not negate their observations of defendant's slurred speech, scent of alcohol, inability to walk in a stable manner, belligerent attitude, and apparent urination on himself on more than one occasion. Defendant could have drank during his work day or he could have drank in his van on his way home and thrown the containers out the window as he drove. Hernandez's testimony, while credible, does not definitively establish that defendant did not drink on the day in question. Unlike the representations made in the statement of facts presented in both parties' briefs, Hernandez never expressly testified that he did not observe defendant drinking on the job that day. Instead, when asked if he recalled defendant drinking on the job that date, Hernandez actually responded, "[n]obody is allowed to drink on the job. They would be terminated." This is not responsive to the question of whether he remembered defendant drinking that day. Instead, Hernandez's answer seems to describe the jobsite policy regarding the consumption of alcohol. The only other question that Hernandez was asked regarding defendant's drinking that day was if he observed defendant appear intoxicated and Hernandez responded, "[n]ot at all." Although we would have found the State's evidence beyond sufficient to convict even if Hernandez had specifically stated he did not see defendant drink, we nonetheless point out the actuality of his trial testimony for purposes of clarity. ¶ 38 As a final matter on this issue, defendant, for the first time one appeal, sets forth the argument that according to Hernandez's testimony, defendant could have been suffering from exposure to toluene, a neurotoxin that is a major component of paint thinner, which could have impaired his memory or cognitive functions. We recognize that Hernandez testified that defendant worked with paint thinner that day, and that there was paint thinner in the van that defendant drove. We also recognize that in its closing argument, the defense stated, "we also have that he was working with paint thinner, which could account for the smell of alcohol." However, unlike the argument advanced by defendant on appeal, the defense never argued at trial that toluene exposure was the cause of defendant's impairment. "The purpose of appellate review is to evaluate the record presented in the trial court, and review must be confined to what appears in the record." People v. Canulli, 341 Ill. App. 3d 361, 367-68 (2003). Defendant's closing argument suggested that the paint thinner was, perhaps, the reason the officers smelled alcohol, but outside of the arguments presented in defendant's opening brief, the record on appeal contains no indication that defense ever raised the argument or presented any testimony to support its contention regarding toluene exposure as being a cause of defendant's impairment. As a result, we need not consider defendant's newly-raised contentions on this matter.
In defendant's opening brief he states, "Hernandez never saw Corniel drinking or intoxicated." In the State's response brief, it asserts, "Mr. Hernandez confirmed he was on site all day and that he did not observe defendant drinking on the job." --------
¶ 39 Factors Considered in Aggravation During Sentencing
¶ 40 Next, defendant argues that his sentence rests on the trial judge's mistake of fact, namely that his prior conviction for tampering with a motor vehicle was a misdemeanor, not a felony, as the judge had stated when he sentenced defendant to five years' imprisonment. "[A] sentence based on improper factors may be affirmed where the reviewing court can determine from the record that the weight placed on such an improperly considered aggravating factor was so insignificant it resulted in no increase in the defendant's sentence." People v. Whitney, 297 Ill. App. 3d 965, 971 (1998). ¶ 41 Defendant acknowledges that this issue is likely forfeited due to his trial counsel's failure to object and include this argument in his postsentencing motion, but nevertheless argues that we should address this claim on the merits for three reasons: the court violated Rule 605(a) when it admonished defendant regarding his appellate rights; plain error occurred; or trial counsel rendered ineffective assistance under Strickland. A party forfeits review of an issue "by failing to object at the hearing or specifically include the alleged errors in a posttrial motion." People v. Walker, 2012 IL App (1st) 083655, ¶ 29 (citing People v. Kitchen, 159 Ill. 2d 1, 42-43 (1994)). In this case, defendant's trial counsel did not object during the sentencing hearing when the court qualified his prior misdemeanor as a felony and defendant did not include any such argument in his post-sentencing motion; therefore, we find that defendant forfeited this issue on review, but reach the merits on his alternative arguments. See Whitney, 297 Ill. App. 3d at 969 ("a defendant has a right not to be sentenced based upon improper factors in aggravation, and a trial judge's reliance upon an improper factor in sentencing impinges upon a defendant's fundamental right to liberty.") (Internal quotation marks omitted.) ¶ 42 We first address defendant's alternative argument that the court's consideration of an improper aggravating factor during sentencing requires remand pursuant to the plain error doctrine. "The right to be lawfully sentenced is a substantial right[;]" therefore, "impermissible or illegal sentences may be attacked on appeal as plainly erroneous even though no post-sentencing motion was filed." Id. at 967; see also Ill. S. Ct. R. 615(a) (eff. Jan., 1, 1967) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.") ¶ 43 It is well-established that the plain-error doctrine is a narrow and limited exception. People v. Hillier, 237 Ill. 2d 539, 545 (2010). The first hurdle a defendant must overcome is showing that a clear or obvious error occurred. Id. Then, defendant must show that either: (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing. Id. "Under both prongs of the plain-error doctrine, the defendant has the burden of persuasion." Id. ¶ 44 Regarding the threshold inquiry of whether a clear or obvious error occurred, defendant argues that the trial court erred when, in aggravation, it relied on a conviction as a felony, when it was actually a misdemeanor. The State responds that defendant cannot show that any error occurred because the trial court weighed all of the proper factors in aggravation and mitigation, and properly exercised its discretion in sentencing defendant within the parameters of section 5-4.5-35(a) of the Code, which requires that a class 2 conviction result in a sentence of not less than 3 years, and no more than 7 years. 730 ILCS 5/5-4.5-35(a) (West 2012). ¶ 45 We agree with defendant and find that the trial court erred when it referred to defendant's "prior felony conviction," which did not exist. As an initial matter, we find it important to point out that the record on appeal does not contain the certified copies of defendant's driving abstracts from either Florida or Illinois that the trial court referenced in the transcript of the sentencing hearing. Notwithstanding this omission, the State acquiesces to defendant's contention that his prior conviction was actually a misdemeanor, not a felony. Further, the record contains a copy of the information used to charge defendant with tampering with a motor vehicle pursuant to section 4-102(a)(2) of the Illinois Vehicle Code, which is for misdemeanors. See 625 ILCS 5/4- 102(a)(2) (West 1998). The record also contains a copy of the PSI, which does not expressly reference the tampering conviction as either a misdemeanor or felony, but instead only states the case number (99CR1143701), and that defendant was sentenced to two years' probation. Based on this record evidence and because the State does not dispute that defendant's prior conviction was a misdemeanor, we proceed with our analysis on the merits assuming that defendant was, in fact, convicted of misdemeanor tampering with a motor vehicle. ¶ 46 Assuming that defendant was convicted of a misdemeanor, rather than a felony, the trial court committed error at defendant's sentencing hearing. On February 26, 2015, at defendant's sentencing hearing, the trial court stated that, "defendant will be sentenced, based on his prior felony conviction and the fact that he refuses to try to protect society from himself, because just continues to drive under the influence of alcohol." Additionally, during mitigation, defense counsel stated that, "other than DUIs, other than the alcohol history, he doesn't have any other criminal history." The court responded, "[h]e got a felony conviction, tampering with a motor vehicle, in 1999, two years['] probation." After speaking with defendant, defense counsel apologized to the court and stated that defendant recalled that case and did get two years' probation for it. Thus, the court twice made reference to defendant's previous conviction for felony tampering with a motor vehicle even though no such felony conviction actually existed. As a result, we find it is clear that the court committed error when it referenced a non-existent felony conviction during defendant's sentencing hearing. ¶ 47 As to the next step in plain error review, we find that the trial court's error denied defendant a fair sentencing hearing. Specifically, we find this case similar to Whitney, which defendant relies on as support for his position. In Whitney, the defendant argued that the trial court improperly considered an erroneous prior conviction in aggravation in his sentencing. Whitney, 297 Ill. App. 3d at 966. At the defendant's sentencing hearing, the State offered in aggravation the fact that the defendant was on probation for a prior burglary but the defense argued that the defendant's PSI reflected that he had no prior convictions. Id. at 969. In handing down defendant's sentence, the trial court expressly stated that it was taking into consideration the defendant's prior conviction. Id. On appeal, the State argued that even if the trial judge considered an improper factor, remand was not necessary where the trial court placed an insignificant amount of weight on the prior conviction. Id. at 970-71. Rejecting the State's contention, the court recognized that, "a sentence based on improper factors may be affirmed where the reviewing court can determine from the record that the weight placed on such an improperly considered aggravating factor was so insignificant it resulted in no increase in the defendant's sentence." Id. at 971. However, the court went on to explain that, "we are not prepared to say that, on the record before us, the weight placed upon defendant's nonexistent conviction by the trial court was negligible. Not only did the trial judge specifically state on the record he was considering the conviction, but the prior conviction was also the first factor specifically mentioned by the judge in handing down his sentence." Id. As a result, the case was remanded. Id. ¶ 48 The State argues that Whitney is distinguishable because in that case, the trial court considered a prior conviction in sentencing the defendant when the defendant did not have any prior convictions. The State also asserts that unlike Whitney, the trial court did not mention defendant's erroneous felony tampering conviction as the first factor in sentencing. The State points to "almost an entire page of transcript in which the trial court addressed the arguments made by defense counsel." We disagree with the State's characterization of the court's comments in sentencing. Our review of the record indicates that when handing down defendant's sentence, in a manner nearly identical to the sequence described in Whitney, the trial court here expressly stated that defendant was to be sentenced, "based on his prior felony conviction." The court then went on to explain the other reasons for defendant's five-year sentence. Nonetheless, the court mentioned defendant's supposed felony conviction first. ¶ 49 We reiterate that although a sentence may be affirmed where we can determine from the record that the weight placed on an improperly considered aggravating factor was so insignificant that it did not result in an increase in defendant's sentence. See Whitney, 297 Ill. App. 3d at 971. However, in this case, as in Whitney, we are unable to determine what weight the trial court placed on its mistaken belief that defendant's prior conviction was a felony. Although the trial court talked in more length about defendant's refusal to protect society from himself than it did regarding his prior felony conviction, we cannot determine from the record whether the trial court's erroneous belief that that defendant's prior conviction was a felony did not result in an increase in defendant's sentence. The court mentioned defendant's purported prior felony as the first factor in its explanation of why it was sentencing defendant to five years' imprisonment, and addressed defendant's purported felony twice during the sentencing hearing. As a result, defendant has satisfied the requirements of plain error by establishing that an error occurred and showing that the error denied him a fair sentencing hearing. Because the record before us does not aid in our determination of the weight given to the trial court's mistaken belief that defendant had a prior felony conviction for tampering with a motor vehicle, when in fact, he did not, we must remand this case with directions to the trial court to determine whether the mistaken belief that the prior crime was a felony affected the length of the sentence. ¶ 50 Based on the foregoing, we need not address defendant's alternative arguments regarding the court's purported Rule 605(a) violation or his trial counsel's alleged ineffectiveness as they also relate to the trial court's reliance on an improper sentencing factor.
¶ 51 Sufficiency of Notice in Charging Instrument
¶ 52 Although this matter is being remanded, we address defendant's final argument to make clear that the only issue to be addressed on remand is whether the mistaken belief that the prior crime was a felony affected the length of the sentence. See Pielet v. Pielet, 2012 IL 112064, ¶ 56 ("When appropriate, a reviewing court may address issues that are likely to recur on remand in order to provide guidance to the lower court and thereby expedite the ultimate termination of the litigation.") We, therefore, address defendant's third argument- that this court should order resentencing because the charging instrument failed to provide the requisite notice of the State's intention to sentence defendant as a class 2 offender. ¶ 53 In relevant part, section 111-3(c) of the Code of Criminal Procedure provides: "When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant." 725 ILCS 5/111-3(c) (West 2012). The sufficiency of a charging instrument presents a question of law, so our review is de novo. People v. Espinoza, 2015 IL 118218, ¶ 15. ¶ 54 On April 30, 2014, defendant was charged by information with five counts of aggravated DUI. Count 1 stated:
"THE STATE SHALL SEEK TO SENTENCE HIM AS A CLASS 2 OFFENDER PURSUANT TO SECTION (d) (1) (A) / (2) (C), IN THAT HE HAS COMMITTED THREE PREVIOUS VIOLATIONS OF CHAPTER 625 OF THE
ILLINOIS COMPILED STATUTES ACT 5 SECTION 11-501 (a) OR A SIMILAR PROVISION."Count 2 was nearly identical, with the only difference being that count 2 stated that defendant had committed 2 previous violations, rather than 3. ¶ 55 The defense did not argue that the notice provided in the information was deficient in a postsentencing motion, and in light of the State's anticipated forfeiture argument makes alternative assertions based on the trial court's alleged 605(a) violation, plain error, and ineffective assistance of counsel. The State's response brief, however, appears to acquiesce to defendant's possible forfeiture by failing to argue that defendant did not preserve the claim. Our review of the record evidences that defendant's counsel objected in a sentencing memorandum, filed on February 9, 2015. Defendant's memorandum argued that the notice provided in counts 1 and 2 of the information was wholly insufficient. Defense counsel also raised this issue during the hearing on the posttrial motion and sentencing. Thus, we find that this issue was sufficiently preserved. See Walker, 2012 IL App (1st) 083655, ¶ 29. ¶ 56 Our supreme court has recognized that, "the timing of a challenge to the indictment has been considered significant in determining whether a defendant is entitled to reversal of his conviction on that ground." (Internal quotation marks omitted.) People v. Davis, 217 Ill. 2d 472, 478-79. When an information is attacked for the first time on appeal, the defendant must show prejudice in the preparation of his defense. Id. at 479. Conversely, if the information is challenged before trial, the information must strictly comply with the pleading requirements of the Code. People v. Thingvold, 145 Ill. 2d 441, 448 (1991). In this case, defendant did not challenge the information before trial, thus he is required to show prejudice. ¶ 57 Defendant argues that the charging instrument prejudiced him by failing to specify the prior convictions that increased the sentencing range. Defendant points out that the information reflected that the State was seeking an enhanced sentence, but did not name the prior convictions, and therefore did not "state such prior conviction so as to give notice to the defendant." See 725 ILCS 5/111-3(c) (West 2012). As a result, defendant asserts that the lack of notice prejudiced him because his counsel was forced to request a continuance, which annoyed the judge, who then "threatened" to retaliate with more prison time. ¶ 58 The State responds that defendant cannot show prejudice, because his counsel was not forced into requesting a continuance, the trial court did not display animosity toward defendant, and the judge never threatened defendant. We agree with the State and find that the notice was sufficient and defendant was not prejudiced thereby. ¶ 59 As the State points out, defendant is essentially asking this court to interpret section 111-3(c) of the Code to require the State to provide a defendant of the particulars of the prior convictions used to enhance a defendant's sentence. Defendant has not cited and we have not found any cases that require such particulars. Instead, looking to the language of section 111-3(c), it is clear that the State is only required to "state such prior conviction so as to give notice to the defendant." 725 ILCS 5/111-3(c) (West 2012). In this case, the information expressly stated that the State was seeking an enhanced sentence based on defendant's commission of three (count 1) or two (count 2) previous violations of section 11-501(a) of the Code or a similar provision. Section 11-501(a) of the Code is titled "Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof." 625 ILCS 5/11-501(a) (West 2012). Thus, a simple glance at the statute would have sufficiently provided defendant notice that the prior violations that the State was relying on were two or three prior DUIs, either in Illinois or another state with a similar statutory provision. Defendant does not argue that he was ever unaware of his three prior DUIs and there is nothing in the record to circumstantially suggest that defendant was unaware of his three previous DUI convictions. Thus, we find that the language used in the information stated such prior convictions as to give sufficient notice to defendant pursuant to section 111-3(c) of the Code. ¶ 60 Even assuming the notice was insufficient, which it was not, defendant also cannot show he was prejudiced by the notice. Defendant's contention that he was prejudiced because his counsel was "forced" to request a continuance, which made the judge angry and retaliatory, has no support in the record. The information in this case was filed on April 30, 2014. Defendant's counsel asked to continue the sentencing hearing on February 9, 2015. Thus, the defense was aware that the State was seeking an enhanced sentence for almost a year before sentencing. We are unsure how defendant can now reasonably argue that his counsel was "forced" to request a continuance based on the State's failure to give proper notice in the information, when the defense was aware that an enhanced sentence was being sought for almost a year prior. ¶ 61 Further, defendant contends that the request for the continuance upset the trial court, which led to the judge giving defendant a longer sentence. Specifically, defendant points to the court's characterization of counsel's request for a continuance as "not exactly mitigating" as being indicative of a threat to raise defendant's sentence. The State responds that defendant's contention is ludicrous and unsupported by the record. We agree with the State. Looking at the entirety of the transcript from the February 9, 2015, court date, it is apparent that the trial court actually agreed to provide additional time for defense counsel to investigate defendant's Florida driving record before counsel requested a continuance. The trial court stated, "[i]f the parties need more time to investigate the circumstances surrounding prior convictions, I think that would [be] an appropriate motion to say we need more time and ask for it, and I think I would grant it, I think I already have granted it, but I will grant it again." Additionally, the court asked defense counsel if a continuance was necessary, as defendant's driving history could be confirmed by asking defendant, to which defense counsel responded that defendant was not "an accurate historian." The court subsequently advised defense counsel that requesting a continuance to show that it was not defendant on the Florida driving abstract when it was him was "not exactly mitigating." This language by the trial court does not convince this court that the trial court, in any way, prejudiced defendant. In light of the court's earlier acknowledgement that it would grant a continuance, the meaning of its statement regarding a continuance not being "mitigating" is dubious at best. Defendant puts forth a narrative that is founded on assumption and conjecture. There is simply no evidence that defendant suffered prejudice as a result of the sentence enhancement notice provided in the information. As stated previously, we find the notice was sufficient, and even if we had found it insufficient, which we did not, defendant cannot show prejudice.
¶ 62 CONCLUSION
¶ 63 Based on the foregoing, we remand this case to the trial court so that it may determine whether the mistaken belief that the prior crime was a felony affected the length of the sentence, and affirm on all other grounds. ¶ 64 Affirmed and remanded with directions.