Illinois Official Reports

Appellate Court

People v. Cruz, 2019 IL App (1st) 170886

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

JOSE CRUZ, Defendant-Appellant.

District & No. First District, Sixth Division 

No. 1-17-0886

Filed October 25, 2019

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 16-CR-6375; the 

Hon. James Karahalios, Judge, presiding.

Judgment Affirmed in part, modified in part, and remanded.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Elizabeth A. Botti, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, 

Noah Montague, and Justin R. Erb, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justices Cunningham and Connors concurred in the judgment and 

opinion. 
- 2 -

OPINION

¶ 1 Following a jury trial, defendant Jose Cruz was convicted of aggravated driving under the 

influence of alcohol (DUI) and driving while his license was revoked or suspended (DWR). 

He was sentenced to concurrent prison terms of 16 years for aggravated DUI and 6 years for 

DWR. Defendant now appeals, arguing that (1) he was denied a fair trial because the State’s 

closing argument mentioned facts not in evidence, (2) his aggravated DUI sentence was 

excessive, (3) the trial court erred by imposing an extended-term sentence for DWR, and 

(4) the case should be remanded to the circuit court so that he may challenge the imposition of 

certain fines and fees and the calculation of his per diem credit. We affirm defendant’s 

conviction and sentence for aggravated DUI, reduce his sentence for DWR, and remand the 

matter so that defendant may file a motion raising his fines and fees arguments.

¶ 2 JURISDICTION

¶ 3 Defendant filed a motion to reconsider his sentence, which the trial court granted. 

Defendant was resentenced on April 3, 2017. He filed his notice of appeal that same day. 

Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois 

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 

2013) and Rule 606 (eff. Dec. 11, 2014), governing appeals from a final judgment of conviction 

in a criminal case entered below.

¶ 4 BACKGROUND

¶ 5 After a traffic stop in April 2016, defendant was charged by indictment with aggravated 

DUI (625 ILCS 5/11-501(a)(2) (West 2016)) and DWR (id. § 6-303(a)). Based on previous 

convictions for similar offenses, the State sought to sentence defendant as a Class X offender 

for aggravated DUI and as a Class 4 offender for DWR.

¶ 6 Prior to trial, defendant agreed to participate in a plea discussion conference pursuant to 

Illinois Supreme Court Rule 402 (eff. July 1, 2012). The court admonished defendant on the 

nature and potential consequences of a Rule 402 conference, which, through a Spanish 

interpreter, defendant stated he understood. After the conference, which was conducted off the 

record, defense counsel informed the court that defendant claimed he had not understood the 

court’s preconference admonishments because he did not receive his medication in jail that 

morning. Personally addressing the court, defendant then explained that he normally took 

sleeping pills at night and the antidepressant Zoloft in the morning but did not receive his 

Zoloft that morning because he left for court before the jail nurse arrived.

¶ 7 The court issued an order requesting defendant’s medication records, which showed that 

defendant was prescribed to take acetaminophen twice a day and the antidepressant 

mirtazapine at night. The records also indicated that defendant had received all of his 

prescribed doses on the day of and the day preceding the Rule 402 conference. When 

confronted with the records, defendant apologized to the court and claimed that the jail staff 

sometimes dispensed his medications incorrectly. The court stated for the record that defendant 

addressed the court in “perfect” English and that the Spanish interpreter was “absolutely not 

needed.” However, defendant continued to use an interpreter throughout the proceedings. 
- 3 -

¶ 8 The State next filed a motion in limine requesting the court to take judicial notice of and 

instruct the jury on section 1286.40 of Title 20 of the Illinois Administrative Code (20 Ill. Adm. 

Code 1286.40 (2015)), which explains that the concentration of alcohol in a person’s blood 

serum should be divided by 1.18 to calculate that person’s whole blood alcohol concentration 

(BAC). Defense counsel objected, arguing that the State should be required to have an expert 

witness testify to the calculation because it was “not something that the average individual 

knows and could calculate properly.”1 The court granted the State’s motion over the objection. 

¶ 9 At trial, Elk Grove police officer Christopher Palmese testified that he was on patrol in a 

marked squad car on the morning of April 3, 2016. At around 2:30 a.m., Palmese stopped at a 

red traffic light at the intersection of Elmhurst and Higgins Roads. He was in the innermost of 

two left turn lanes and was directly behind another driver, later identified as defendant. When 

defendant made the left turn, Palmese observed “[t]he majority, if not [all]” of his vehicle drift 

into the outermost turn lane before veering back into its original lane. Palmese followed 

defendant, who was “swerving within in [his] lane,” for another 200 feet before activating his 

emergency lights. Defendant activated his right turn signal and, although there was space on 

the right shoulder, pulled left into the “median” separating directions of traffic. Palmese 

approached defendant’s vehicle and noticed that his eyes were “glassy.” Defendant informed 

Palmese that he was coming from an alcohol-serving establishment and that he had been 

drinking there. Palmese requested defendant’s driver’s license, but he was unable to produce 

one. Instead, defendant provided Palmese with his name and date of birth. Palmese returned to 

his squad car, called for assistance, and entered defendant’s information into a computer 

database. 

¶ 10 When another officer arrived, Palmese requested that defendant submit to field sobriety 

testing. As defendant exited his vehicle for the tests, Palmese noticed that he smelled of alcohol 

and was “unsure” and “very hesitant” in his gait. Palmese first administered the horizontal gaze 

nystagmus test, which required defendant to track a pen with his eyes without moving his head. 

During the first phase of the test, defendant was unable to smoothly follow the pen and 

exhibited a “distinct and sustained” nystagmus in his left eye. During the second phase of the 

test, defendant simply “stare[d] straight ahead” each time despite Palmese’s repeated 

instructions to follow the pen with his eyes. Palmese concluded the test after several 

unsuccessful attempts. Based on defendant’s performance, Palmese concluded that he had been 

drinking. 

¶ 11 Palmese next administered the “walk-and-turn test,” which required defendant to take nine 

quick, heel-to-toe steps in a straight line while counting them aloud. After the nine steps, 

defendant was to turn around and repeat the process in the opposite direction. Palmese 

explained and demonstrated how to perform the test properly. When defendant attempted the 

test, he instead took 14 slow “baby steps” without counting aloud or turning around. 

¶ 12 Finally, Palmese administered the “one-legged stand test,” which required defendant to 

stand on one leg with the other raised in front of him while counting aloud for 30 seconds. 

1

Defense counsel also objected on the grounds that the proper conversion factor could be anywhere 

between 1.12 and 1.20. However, the court noted on the record that counsel withdrew the argument in 

an off-the-record conversation because defendant’s whole BAC would have exceeded the legal limit 

under any of the conversion factors. 
- 4 -

Palmese explained and demonstrated how to perform the test. After several attempts, defendant 

was only able to hold his leg in the air for three to four seconds. 

¶ 13 After the testing, Palmese handcuffed defendant, who “kind of resisted at first” and 

“plead[ed]” with the officers not to arrest him. The officers then had to assist defendant into 

the back of Palmese’s squad car. Once inside, defendant stated that he “only had three beers” 

and that the officers were “killing [him].” Palmese informed defendant of the Miranda rights 

(see Miranda v. Arizona, 384 U.S. 436 (1966)), and defendant “quieted down.” On the 10-

minute drive to the police station, Palmese noticed that defendant “wobbl[ed] around” in the 

back seat, “kept putting his head down,” and “almost *** fell asleep.” Palmese testified that 

defendant spoke English throughout the encounter and was understandable despite having 

“slurred and delayed” speech. 

¶ 14 The State published footage of the traffic stop captured by cameras within Palmese’s squad 

car. The video begins after defendant’s lane violation and does not clearly show the results of 

the nystagmus test, but it corroborates Palmese’s testimony in all other material aspects. 

¶ 15 At the police station, Palmese read defendant a warning form explaining that the refusal to 

submit to a breath test would result in a longer suspension of his driver’s license than if the test 

determined him to be intoxicated. Even so, defendant refused the breath test. 

¶ 16 On cross-examination, Palmese acknowledged that it was cold, dark, and windy outside at 

the time of the stop. Defendant was not wearing a coat and repeatedly put his hands in his 

pockets to stay warm. Palmese did not ask defendant whether he had any physical impairments 

or whether he was on medication before the sobriety testing. Defendant was not instructed on 

how to perform the tests in Spanish. 

¶ 17 Dr. Ellen Magas-Papadimitriou testified that she treated defendant at Alexian Brothers 

Medical Center at around 6:51 a.m. on the day of his arrest. She identified defendant’s medical 

records from that day, which included the results of a routine blood test performed by the 

hospital’s in-house laboratory. The blood draw was not requested by law enforcement. 

According to the test results, defendant’s blood serum alcohol concentration was 190 

milligrams per deciliter. 

¶ 18 On cross-examination, Dr. Magas-Papadimitriou testified that she did not personally draw 

defendant’s blood but was in the room at the time. Although she was not “100 percent certain,” 

she stated that it would be “highly unlikely” that an alcohol swab was used as a disinfectant. 

She did not personally transport defendant’s blood to and from the laboratory and did not 

personally ensure that the laboratory equipment was properly calibrated. 

¶ 19 The State then entered a certified copy of defendant’s driving abstract, which showed that 

his license was revoked at the time of the traffic stop and that he had numerous previous 

convictions for DUI and DWR. 

¶ 20 The case proceeded to a jury instruction conference, where the State proposed instructing 

the jury that: 

“It is a judicially noticed fact that the blood serum *** alcohol concentration result 

will be divided by 1.18 to obtain a whole blood equivalent. You may, but are not 

required to, accept as conclusive any fact judicially noticed.” 

Defense counsel objected, renewing her argument that the conversion formula was an 

inappropriate subject for judicial notice. 
- 5 -

¶ 21 Counsel also objected to the State’s proposal to instruct the jury that, in accordance with 

Illinois Pattern Jury Instructions, Criminal, No. 23.30 (approved Dec. 8, 2011):

“If you find that at the time the defendant drove a vehicle that the amount of alcohol 

concentration in the defendant’s blood or breath was 0.08 or more, you may presume 

that the defendant was under the influence of alcohol. You never are required to make 

this presumption. It is for the jury to determine whether the presumption should be 

drawn. You should consider all of the evidence in determining whether the defendant 

was under the influence of alcohol.” 

¶ 22 The court agreed to give both instructions over the defense’s objections, and the defense 

rested without presenting evidence.

¶ 23 Prior to closing arguments, the court admonished the jury that “the things which are said 

in closing arguments are not evidence and cannot be considered by you as evidence. For the 

umpteenth time, the only things that you can use as evidence to determine the facts are the 

sworn testimony of the witnesses and the exhibits ***.” 

¶ 24 During the State’s argument, the prosecutor told the jury that, among other things, the court 

would instruct them that “[t]he term alcohol concentration means *** grams of alcohol per 100 

milliliters of blood.” The prosecutor then recalled the testimony that defendant’s blood serum 

alcohol concentration was 190 milligrams per deciliter and explained that, “as a matter of 

math,” that was equivalent to 0.19 grams per 100 milliliters. The prosecutor further explained 

that, if the jury were to accept the judicially noticed conversion formula, they would divide the 

blood serum concentration by 1.18 to arrive at defendant’s whole BAC of 0.16. 

¶ 25 In response, defense counsel attacked the blood draw as “absolutely irrelevant” and a “red 

herring,” arguing that it was unreliable because Dr. Magas-Papadimitriou did not draw 

defendant’s blood, could not say that it was not “contaminated” from various sources, and did 

not confirm that the laboratory equipment was properly calibrated. Counsel also argued that 

“[y]ou heard nothing about any mathematical equations. You heard nothing about whole blood 

or blood serum or percentages.” 

¶ 26 After arguments, the court admonished the jurors, inter alia, that they were to consider 

only the testimony of the witnesses, the trial exhibits, and judicially noticed facts. The court 

also reminded the jury that “[y]ou may, but are not required to, accept as conclusive any facts 

judicially noticed” and that “any statement or argument made by the attorneys which is not 

based on the evidence should be disregarded.” Consistent with the prosecutor’s statements 

during closing argument, the court then instructed the jury that a person’s whole BAC is 

expressed in terms of “grams of alcohol per 100 milliliters of blood” and that it was a judicially 

noticed fact that a person’s whole BAC is calculated by dividing the blood serum alcohol 

concentration by 1.18. Finally, the court instructed the jurors that, if they found that 

defendant’s whole BAC was 0.08 or greater at the time he was driving, they were permitted, 

but not required, to presume that defendant was under the influence of alcohol at that time. 

¶ 27 The jury found defendant guilty of DUI and DWR. Defendant filed a motion for a new 

trial, which the court denied. 

¶ 28 The case proceeded to a sentencing hearing, where the court acknowledged receipt of 

defendant’s presentence investigation (PSI) report. According to the report, defendant’s 

criminal history included five previous DUI convictions and two DWR convictions. The report 

also stated that defendant was born in El Salvador and dropped out of school after the sixth 
- 6 -

grade to help support his family. Defendant was drafted into the Salvadoran army at age 13, 

where he served as a lieutenant and combat foreman until being honorably discharged. He 

immigrated to the United States in 1983 and had been employed as a laborer in the years 

preceding his arrest in the present case. Although defendant had not seen a mental health 

professional prior to his most recent arrest, he believed that he suffered from posttraumatic 

stress disorder because of his time in the military. He was diagnosed with depression and 

prescribed psychotropic medication after a postarrest suicide attempt. 

¶ 29 With respect to substance abuse, defendant reported that he drank alcohol on “rare social 

occasions,” usually consuming 8 to 10 beers per month. He acknowledged having three DUI 

arrests but stated that he had never been treated or evaluated for alcohol abuse. Documents in 

the record also showed that defendant was diagnosed with “alcohol abuse disorder” after the 

present offense and had completed a substance abuse treatment program while the case was 

pending. 

¶ 30 In aggravation, the State emphasized defendant’s criminal history, noting that he was on 

conditional discharge for his most recent DWR conviction at the time of the present offense. 

In reference to the substance abuse section of the PSI report, the State argued that defendant 

was “in denial about his drinking and driving problem” and noted that he had been arrested for 

DUI six times, not three. The prosecutor also expressed skepticism that defendant had never 

been evaluated for his alcohol abuse, asserting, “I’m sure there was some court-ordered 

treatment” associated with the three previous occasions on which defendant received 

conditional discharge for DUI. 

¶ 31 In mitigation, defendant’s wife testified that defendant supported the family financially 

because she was on disability after breaking her ribs in a work accident. She feared that she 

would be unable to complete household chores and cover the family’s expenses if defendant 

was sent to prison. 

¶ 32 Defense counsel emphasized that defendant’s conduct did not cause any injuries or 

property damage. In addressing the State’s points about the substance abuse section of the PSI 

report, counsel admitted that she was unaware whether defendant had ever received alcohol 

treatment but asserted that defendant would not have received such treatment in prison after 

2003. In response, the court recalled the incident in which defendant “apologized for lying 

[and] admitted that he lied” about not understanding the Rule 402 conference because of his 

medication. Thus, the court opined that defendant “is not always known as being truthful.” 

¶ 33 In allocution, defendant stated that he “appreciate[d]” his time in alcohol treatment during 

the pendency of the present case and that he “need[ed] one more time and that’s it.” 

¶ 34 In announcing defendant’s sentence, the court stated that it reviewed the trial evidence, the 

arguments presented in mitigation and aggravation, and defendant’s allocution. The court 

noted that defendant had numerous convictions for DUI and DWR over the past 24 years and 

that his driving abstract was also “littered” with other traffic violations such as leaving the 

scene of an accident and failing to carry insurance. Consequently, the court sentenced 

defendant to concurrent sentences of 22 years in prison for aggravated DUI and 6 years in 

prison for DWR. In order to leave “no question about why [it was] imposing this sentence,” 

the court stated that it believed defendant posed a “very extreme danger” to public safety and 

that a lengthy prison sentence was the only way to prevent defendant from driving while 

intoxicated. Upon defendant’s motion to reconsider the sentences, the court reduced the 
- 7 -

aggravated DUI sentence to 16 years in prison.

¶ 35 ANALYSIS

¶ 36 On appeal, defendant first argues that the State’s closing argument deprived him of a fair 

trial because the prosecutor mentioned facts not in evidence. In particular, defendant alleges 

that the prosecutor erred by explaining to the jury (1) how to convert his blood serum alcohol 

concentration into its whole blood equivalent and (2) how to convert that figure from 

milligrams per deciliter into grams per 100 milliliters. 

¶ 37 Defendant acknowledges that he forfeited the argument by failing to include it in a posttrial 

motion but contends that we may nevertheless review the issue under the plain error doctrine 

or as a matter of ineffective assistance of counsel. 

¶ 38 The plain error doctrine is a narrow and limited exception to the general forfeiture rule that 

allows a reviewing court to consider an unpreserved issue if the defendant can show that a 

clear or obvious error occurred and either (1) the evidence was “ ‘so closely balanced that the 

error alone threatened to tip the scales of justice against the defendant’ ” or (2) the error was 

so serious as to deny him a fair trial. People v. Thompson, 238 Ill. 2d 598, 613 (2010) (quoting 

People v. Piatkowksi, 225 Ill. 2d 551, 565 (2007)). “Before invoking the plain error exception, 

however, we determine whether any error occurred.” People v. Chapman, 194 Ill. 2d 186, 226 

(2000). 

¶ 39 Similarly, a defendant asserting ineffective assistance of counsel must show both that 

(1) his counsel’s performance was objectively unreasonable and (2) there is a reasonable 

probability that the result of the proceeding would have been different but for counsel’s 

unreasonable performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under either 

theory, a reviewing court must first determine whether the defendant can establish that a clear 

error occurred. People v. Cox, 2017 IL App (1st) 151536, ¶ 52.

¶ 40 The parties disagree about the proper standard under which we should determine whether 

an error occurred. Defendant notes that, after analyzing our supreme court’s decisions in 

People v. Blue, 189 Ill. 2d 99, 128 (2000) (applying an abuse of discretion standard), and 

People v. Wheeler, 226 Ill. 2d 92, 121 (2007) (reviewing de novo whether the prosecutor’s 

intentional misconduct warranted a new trial), this court has held that (1) the propriety of 

remarks during closing argument is reviewed for abuse of discretion and (2) whether the 

improper remarks, if any, require a new trial is reviewed de novo. See People v. Cook, 2018 

IL App (1st) 142134, ¶ 64. However, defendant argues that we should review the prosecutor’s 

comments de novo because, as defendant did not object to the remarks, the trial court did not 

actively exercise its discretion to decide whether they were proper. The State, citing People v. 

Phagan, 2019 IL App (1st) 153031, ¶ 48, argues that the proper standard is abuse of discretion. 

In this case, we would reach the same result under any standard of review.

¶ 41 Although the State is afforded “wide latitude” during closing arguments, it may not 

misstate the facts or argue facts not in evidence. People v. Glasper, 234 Ill. 2d 173, 204 (2009). 

However, the State is entitled to comment on the evidence and any reasonable inferences drawn 

therefrom. Id. Moreover, the State is permitted to remark upon matters of common knowledge 

and experience during closing arguments. People v. Runge, 234 Ill. 2d 68, 146 (2009). An 

improper closing argument warrants a new trial only if it “engender[ed] substantial prejudice 

against a defendant such that it is impossible to say whether or not a verdict of guilt resulted 

from them.” Wheeler, 226 Ill. 2d at 123. 
- 8 -

¶ 42 Turning to the present case, defendant first challenges the prosecutor’s statements 

converting his blood serum alcohol concentration into its whole blood equivalent. Although 

defendant is correct that no testimony established how to perform this conversion, the formula 

for doing so was presented to the jury when the court took judicial notice of the fact that a 

person’s whole BAC is calculated by dividing that person’s blood serum alcohol concentration 

by 1.18. See 20 Ill. Adm. Code 1286.40 (2015). Defendant does not challenge the propriety of 

the court’s decision to take judicial notice of the formula, but instead asserts that the State was 

required to “establish the converted number” either through expert testimony or through a 

stipulation between the parties. However, “[e]xpert testimony is proper when the subject matter 

of the inquiry is such that only a person with skill or experience in that area is capable of 

forming a judgment.” People v. Leahy, 168 Ill. App. 3d 643, 649 (1988). Here, all that was 

required was to divide two given numbers. This is a matter of basic arithmetic and did not 

necessitate the use of expert testimony. See People v. Becker, 239 Ill. 2d 215, 235 (2010) 

(expert testimony not required “on matters of common knowledge unless the subject is difficult 

to understand and explain”). 

¶ 43 The cases cited by defendant do not support his position that expert testimony or a 

stipulation was required. See People v. Hamerlinck, 2018 IL App (1st) 152759, ¶¶ 48-49 

(parties stipulated to the defendant’s whole BAC by dividing his blood serum alcohol 

concentration by 1.18); People v. Stipp, 349 Ill. App. 3d 955, 956-57 (2004) (same); People v. 

Thoman, 329 Ill. App. 3d 1216, 1218-20 (2002) (reversing the defendant’s conviction where 

the jury “was presented with no evidence of the conversion factor” between blood serum 

alcohol concentration and whole BAC). At best, these cases stand for the proposition that the 

State may establish a defendant’s BAC through stipulation or expert testimony. However, 

nothing in those opinions suggests that the State is required to do so. Indeed, the Thoman court 

stated that “[t]he State could have proved the [defendant’s] whole blood alcohol concentration 

through expert testimony regarding the conversion factor or through asking the trial court to 

take judicial notice of, and instruct the jury on, the appropriate conversion factor.” (Emphasis 

added.) Thoman, 329 Ill. App. 3d at 1220. Here, the State did just that, establishing 

(1) defendant’s blood serum alcohol concentration through Dr. Magas-Papadimitriou’s 

testimony and (2) the whole-blood conversion formula through judicial notice. Given the two 

numbers, the arithmetic was rudimentary. Thus, the prosecutor did not err in converting 

defendant’s blood serum alcohol concentration into its whole blood equivalent during closing 

argument.

¶ 44 Relatedly, defendant also contends that the prosecutor erred by telling the jury that 

defendant’s blood serum alcohol concentration of 190 milligrams per deciliter was equivalent 

to 0.19 grams per 100 milliliters. Defendant concedes that, without the challenged comments, 

the jurors still would have divided 190 (his blood serum alcohol concentration expressed in 

milligrams per deciliter) by 1.18 (the judicially noticed conversion factor) to arrive at a whole 

BAC of roughly 161 milligrams per deciliter. However, defendant contends that the jurors 

would not have performed the additional step of converting that number into grams per 100 

milliliters. 

¶ 45 This argument is pure speculation, as the jury was properly instructed that a person’s BAC 

referred to the number of grams of alcohol per 100 milliliters of that person’s blood. Thus, the 

jurors would have known that they needed to convert the 161 milligrams per deciliter if they 

wanted to apply the presumption that a defendant is intoxicated when his BAC exceeds 0.08 
- 9 -

grams per 100 milliliters. Although defendant doubts the jurors’ ability to understand or 

perform such a conversion, we see no basis to conclude that they could not have done so. See 

People v. Redman, 135 Ill. App. 3d 534, 540-41 (1985) (“Given the intelligence of those 

selected for jury duty in this society, it would appear strange to call a statement such as made 

here by the prosecutor error, when the jury on its own, by a simple mathematical calculation, 

could arrive at the same conclusion.”). The calculation is made all the easier by the fact that 1 

deciliter is equivalent to 100 milliliters. We also note that, had the jury miscalculated as 

defendant speculates, it would still have determined that his BAC far exceeded the legal limit. 

Thus, under defendant’s theory, the jury still could have chosen to apply the presumption that 

he was intoxicated. 

¶ 46 Moreover, even assuming, arguendo, that an error occurred, we would still affirm 

defendant’s convictions. As noted, the first prong of the plain error doctrine requires a 

defendant to establish that the evidence was so closely balanced that the error alone could have 

changed the outcome of the trial. People v. Sebby, 2017 IL 119445, ¶ 51. However, even 

putting the blood draw aside, the evidence of defendant’s guilt was overwhelming. Palmese 

testified that he observed defendant commit a traffic violation and initiated a traffic stop. 

Defendant activated his right turn signal but pulled over to the left and parked in the area 

between directions of traffic. His speech was “slurred and delayed,” he smelled of alcohol, and 

his eyes were “glassy.” Defendant also admitted to drinking three beers and failed all three 

field sobriety tests that Palmese administered. Afterwards, Palmese and another officer had to 

assist defendant into the back of a squad car, and defendant “almost *** fell asleep” during the 

10-minute drive to the police station. Palmese’s testimony was corroborated by the video from 

his squad car. Thus, the evidence was not closely balanced, and review under the first prong 

of the plain error doctrine would not entitle defendant to relief.

¶ 47 Nor can defendant obtain relief under the second prong of the plain error doctrine. Under 

that prong, a defendant must show that the error was “so serious that it affected the fairness of 

[his] trial and challenged the integrity of the judicial process.” People v. Clark, 2016 IL 

118845, ¶ 44. Defendant concedes that the prosecutor’s calculations, which showed that his 

BAC was twice the legal limit several hours after the traffic stop, were correct. As noted, the 

jurors could have easily reached this conclusion on their own notwithstanding the challenged 

remarks. Moreover, the jury was repeatedly instructed that (1) it should only consider the 

testimony, trial exhibits, and judicially noticed facts and (2) closing arguments were not 

evidence and should be disregarded to the extent not supported by the evidence. Similarly, the 

jury was properly instructed that they were not required to accept the judicially noticed 

conversion formula or apply any presumption based on defendant’s BAC. Thus, we cannot say 

that the State’s closing argument rendered defendant’s trial fundamentally unfair. See Glasper, 

234 Ill. 2d at 215 (improper comment during closing argument not second-prong plain error 

where the jury was instructed to base its verdict solely on the evidence).

¶ 48 Additionally, as the evidence of defendant’s guilt was overwhelming, he cannot show a 

reasonable probability that he was prejudiced by his counsel’s failure to object to the State’s 

closing argument. His claim of ineffective assistance of counsel is therefore meritless. See 

People v. Enoch, 122 Ill. 2d 176, 202 (1988). 

¶ 49 Next, defendant argues that the trial court erred by imposing an aggravated DUI sentence 

that was greatly disproportionate to the nature of the offense and “ignor[ed]” his rehabilitative 

potential. In particular, defendant argues that his sentence was excessive because (1) he did 
- 10 -

not cause injury or property damage and (2) it did not account for mitigating factors such as 

his “non-violent background, strong work history, [and] strong family ties.” 

¶ 50 The Illinois Constitution requires that all sentences be imposed according to both the 

seriousness of the offense and the goal of restoring the offender to useful citizenship. Ill. Const. 

1970, art. I, § 11; People v. Rizzo, 2016 IL 118599, ¶ 28. A trial court has broad discretionary 

powers in imposing a sentence, and its decision is entitled to great deference. People v. 

Alexander, 239 Ill. 2d 205, 212 (2010). Because the trial court is in the superior position to 

evaluate factors such as the defendant’s credibility, habits, age, demeanor, and general moral 

character, a reviewing court will not substitute its own judgment merely because it would have 

weighed the factors differently. People v. Stacey, 193 Ill. 2d 203, 209 (2000). Moreover, a 

sentence within the statutory guidelines is presumed proper (People v. Knox, 2014 IL App (1st) 

120349, ¶ 46) and will not be reduced unless the trial court abused its discretion (Alexander, 

239 Ill. 2d at 212). 

¶ 51 As committed here, aggravated DUI is a Class X felony punishable by a mandatory term 

of 6 to 30 years in prison. 625 ILCS 5/11-501(d)(2)(E) (West 2016); 730 ILCS 5/5-4.5-25(a) 

(West 2016). Thus, defendant’s 16-year sentence is presumed proper and will not be 

overturned unless he affirmatively shows that it is greatly disproportionate to his offense. See 

People v. Burton, 2015 IL App (1st) 131600, ¶ 36. However, all of the factors cited by 

defendant on appeal were presented to the trial court and are presumed to have been considered 

appropriately. Although defendant asserts that the trial court “ignored” his potential for 

rehabilitation, he also correctly notes that the court “believed that [he] had no chance of 

rehabilitation” based on his numerous prior offenses. Thus, defendant’s argument is actually 

that the court did not weigh his potential for rehabilitation heavily enough. We decline to 

substitute our own judgment on the weight of such factors for that of the trial court. Stacey, 

193 Ill. 2d at 209. The trial court was not required to assign more weight to defendant’s 

rehabilitative potential than to the seriousness of the offense, which is the most important 

sentencing factor. People v. Wilson, 2016 IL App (1st) 141063, ¶ 11. 

¶ 52 We also disagree with defendant’s contention that the trial court “retaliated” against him 

by imposing a lengthy sentence because it mistakenly believed that he lied about his 

medication after the Rule 402 conference. As noted, the State suggested in aggravation that 

defendant made false statements in the PSI report by (1) denying he had a drinking problem, 

(2) denying ever being evaluated or treated for alcohol abuse, and (3) claiming that he had only 

three DUI arrests. When defense counsel admitted that she was unaware whether defendant 

had previously been treated for alcohol use, the court opined that defendant was “not always 

known as being truthful” because he lied to the court about not understanding the Rule 402 

conference due to not receiving his depression medication that morning. 

¶ 53 Initially, defendant maintains that he was not untruthful to the court and that the exchange 

was simply a misunderstanding due to his difficulty speaking English. However, it was the 

trial court’s role to determine defendant’s credibility for sentencing purposes. People v. Colon, 

2018 IL App (1st) 160120, ¶ 66. We cannot say that the trial court abused its discretion by 

discrediting defendant’s self-serving explanation of his statements. Although defendant told 

the court that he took a sleeping pill at night and Zoloft in the morning, the medical records 

obtained by the court showed that defendant took a different antidepressant at night and only 

acetaminophen in the morning. The records did not mention that defendant took a sleeping pill. 

Additionally, while defendant claims that a language barrier was the source of the confusion, 
- 11 -

the trial court noted for the record that defendant addressed the court in “perfect” English 

despite having a Spanish interpreter available in the courtroom during the proceeding. Palmese 

also testified at trial that defendant was able to communicate in English. Thus, it is far from 

clear that defendant was not dishonest with the court.

¶ 54 Regardless, defendant still bears the burden of affirmatively establishing that the court 

relied upon improper considerations. People v. Dowding, 388 Ill. App. 3d 936, 943 (2009). In 

determining the rationale behind the trial court’s sentencing decision, we must interpret the 

record as a whole rather than focus on isolated comments. Id. Although the court made a single 

reference to the Rule 402 conference at sentencing, the record clearly shows that the court did 

not base its sentence on the medication issue. Instead, the record demonstrates that the court 

placed significant weight on defendant’s lengthy history of driving while intoxicated and on a 

revoked license. Indeed, in order to leave “no question” about why it imposed the sentence, 

the court specifically stated that it believed a substantial period of incarceration was the only 

way to quell the “very extreme danger” that defendant’s repeated offenses posed to the public. 

Thus, we cannot conclude that the court relied on improper aggravating factors in fashioning 

defendant’s sentence.

¶ 55 In short, defendant has not overcome the presumption that his aggravated DUI sentence 

was proper. Accordingly, he has not proven that the trial court abused its discretion in imposing 

the sentence, which was well below the statutory maximum. 

¶ 56 Defendant next argues, and the State concedes, that the trial court improperly imposed an 

extended-term sentence for DWR. The parties acknowledge that defendant failed to preserve 

the issue but contend that we may review it as a matter of plain error. We agree and will 

therefore consider defendant’s argument on its merits. See People v. Palen, 2016 IL App (4th) 

140228, ¶¶ 74-78 (misapplication of an extended-term sentence may be reviewed under the 

second prong of the plain error doctrine). 

¶ 57 Here, because of defendant’s criminal history, his DWR conviction was a Class 4 felony. 

625 ILCS 5/6-303(d-3) (West 2016). A Class 4 felony generally carries a sentence of one to 

three years’ imprisonment, with a possible extended term of three to six years. 730 ILCS 5/5-

4.5-45(a) (West 2016). Thus, defendant’s six-year sentence fell within the extended term 

range. However, when, as here, multiple convictions stem from related courses of conduct, a 

defendant may only be sentenced to an extended-term sentence for the most serious 

classification of offense. Id. § 5-8-2(a); People v. Reese, 2017 IL 120011, ¶ 83. Defendant’s 

aggravated DUI conviction was a Class X felony, a more serious offense than Class 4 DWR. 

Thus, an extended-term sentence for DWR was improper. 

¶ 58 Although the parties agree that the extended-term DWR sentence was erroneously 

imposed, they disagree about the proper remedy. The State argues that this court should reduce 

the DWR sentence to the maximum nonextended term of three years in prison and leave the 

aggravated DUI sentence undisturbed. Defendant argues that the cause should be remanded 

for resentencing on both offenses because the error might have influenced the court’s sentence 

for aggravated DUI. Alternatively, defendant requests that his DWR sentence be reduced to 

the nonextended maximum of three years. 

¶ 59 We find it unnecessary to remand for resentencing, as it is clear that the DWR sentence did 

not affect the aggravated DUI sentence. Indeed, the trial court explained that it fashioned the 

aggravated DUI sentence in light of its belief that a lengthy prison term was necessary to 

prevent defendant from creating a “very extreme danger” by driving while intoxicated. 
- 12 -

Similarly, the imposition of the maximum six-year, extended-term sentence for DWR leaves 

us with no doubt that the trial court intended to impose the highest possible sentence on that 

count. Pursuant to our authority under Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 

1967), we therefore reduce defendant’s DWR sentence to the maximum nonextended term of 

three years in prison. See Reese, 2017 IL 120011, ¶ 85 (reducing erroneously imposed 

extended-term sentences to the nonextended maximums where the record showed that the trial 

court intended to impose the maximum sentence available on those counts). 

¶ 60 Finally, the parties also agree that this court should remand to the circuit court so that 

defendant may file a motion challenging the imposition of certain fines and fees and the 

application of his per diem credit. On February 26, 2019, while this appeal was pending, our 

supreme court adopted new Illinois Supreme Court Rule 558, which sets forth the procedure 

in traffic cases for correcting sentencing errors in, among other things, “the imposition or 

calculation or fines [and] fees” and “the application of per diem credit against fines.” Ill. S. Ct. 

R. 558(a)(1), (2) (eff. Mar. 1, 2019). Rule 558 was then amended on May 17, 2019, to provide 

that “[i]n all traffic *** cases pending on appeal as of March 1, 2019, *** in which a party has 

attempted to raise sentencing errors covered by this rule for the first time on appeal, the 

reviewing court shall remand to the circuit court to allow the party to file a motion pursuant to 

this rule.” Ill. S. Ct. R. 558(e) (eff. May 17, 2019). “No appeal may be taken” based on an error 

covered by the rule unless the alleged error “has first been raised in the circuit court.” Ill. S. 

Ct. R. 558(c) (eff. May 17, 2019). We therefore remand to the circuit court so that defendant 

may file a motion pursuant to this rule.

¶ 61 CONCLUSION

¶ 62 For the stated reasons, we affirm defendant’s conviction and sentence for aggravated DUI 

but reduce his sentence for DWR to three years in prison. The matter is remanded to allow 

defendant an opportunity to challenge his fines and fees and per diem credit in the circuit court.

¶ 63 Affirmed in part, modified in part, and remanded.