People v. May

Digitally signed

by Reporter of

Decisions

Reason: I attest to

Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2022.09.21

11:48:34 -05'00'

People v. May, 2021 IL App (4th) 190893

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

Caption ROBERT D. MAY JR., Defendant-Appellant.

District & No. Fourth District

No. 4-19-0893

Filed September 22, 2021

Decision Under Appeal from the Circuit Court of Macon County, No. 18-CF-675; the

Review Hon. Phoebe S. Bowers, Judge, presiding.

Judgment Affirmed in part and vacated in part.

Counsel on James E. Chadd, Catherine K. Hart, and Gregory G. Peterson, of State

Appeal Appellate Defender’s Office, of Springfield, for appellant.

Scott Rueter, State’s Attorney, of Decatur (Patrick Delfino, David J.

Robinson, and Timothy J. Londrigan, of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE KNECHT delivered the judgment of the court,

with opinion.

Justices Turner and Harris concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant, Robert D. May Jr., was convicted of three counts of

aggravated driving under the influence of alcohol (DUI) and one count of driving while his

driver’s license was revoked and then sentenced to four, concurrently imposed terms of four

years’ imprisonment. Defendant appeals, arguing (1) the State failed to prove him guilty of

two of the counts of aggravated DUI, where it did not present any evidence at trial establishing

that he had prior DUI violations and that his license was revoked for a DUI violation at the

time he committed the charged DUI; (2) the trial court erroneously accepted his waiver of his

right to a jury trial, where it did not appropriately admonish him to ensure his waiver was

understandingly made; and (3) his convictions on two of the counts of aggravated DUI violate

the one-act, one-crime rule, where the convictions on the three counts of aggravated DUI stem

from the same physical act. We affirm in part and vacate in part.

¶2 I. BACKGROUND

¶3 A. Information

¶4 In May 2018, the State charged defendant by information with three counts of aggravated

DUI (counts I through III) (625 ILCS 5/11-501(a)(2), (d)(1)(A), (d)(1)(G), (d)(1)(I), (d)(2)(A),

(d)(2)(C) (West 2018)) and one count of driving while his driver’s license was revoked (count

IV) (id. § 6-303(a), (d)). With respect to counts I through III, each of those counts alleged

defendant violated subsection 11-501(a)(2) of the Illinois Vehicle Code (Code) (id. § 11-

501(a)(2)) in that, on or about May 6, 2018, he drove or was in actual physical control of a

motor vehicle while under the influence of alcohol. Count I further alleged defendant’s

unlawful conduct constituted an aggravated offense, which subjected him to an elevated

sentencing classification, a Class 2 felony, and heightened penalties in that it occurred when

he had three prior DUI violations. Id. § 11-501(d)(1)(A), (d)(2)(C). Count II further alleged

defendant’s unlawful conduct constituted an aggravated offense, which subjected him to an

elevated sentencing classification, a Class 4 felony, and heightened penalties in that it occurred

when his driving privileges were revoked for a DUI violation. Id. § 11-501(d)(1)(G), (d)(2)(A).

Count III further alleged defendant’s unlawful conduct constituted an aggravated offense,

which subjected him to an elevated sentencing classification, a Class 4 felony, and heightened

penalties in that it occurred at a time when he knew or should have known the vehicle he was

driving was not covered by a liability insurance policy. Id. § 11-501(d)(1)(I), (d)(2)(A).

¶5 B. Jury Trial Waiver

¶6 In April 2019, the trial court held a hearing, at which defendant appeared with counsel. At

the beginning of the hearing, defense counsel informed the trial court, “Mr. May is wanting to

waive jury trial and set this matter for a bench trial.” The court later examined defendant as

follows:

“THE COURT: All right. Mr. May, you want to come up here for me. Mr. May,

your attorney has indicated that you wish to waive your right to a jury trial. That is your

constitutional right to be—to have a jury trial. Is that what you wish to do today?

THE DEFENDANT: Yes.

THE COURT: And is this your signature on the written jury trial waiver, sir?

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THE DEFENDANT: Yes.

THE COURT: And are you knowingly and voluntarily waiving your right to a jury

trial today?

THE DEFENDANT: Yes.

THE COURT: Show written jury trial waiver on file.”

A copy of count I of the information is contained in the record on appeal and includes an

apparent signature of defendant under language indicating, “I hereby waive the right to a trial

by jury in this cause.” After hearing from defense counsel and defendant and receiving the

written jury trial waiver, the court scheduled a “bench trial” for later that year. In the months

that followed, defendant appeared with counsel at various hearings, during which the court,

the State, and/or defense counsel made references to the upcoming “bench trial.”

¶7 C. Bench Trial

¶8 In October 2019, the trial court held a bench trial. The following is gleaned from the

evidence presented.

¶9 On May 6, 2018, around 1:20 a.m., police officer Eric Havens responded to the scene of a

crashed vehicle in Decatur. The driver of the crashed vehicle, a woman, was injured. Sometime

after his arrival at the scene, Officer Havens noticed defendant. Officer Havens testified

defendant looked “more dressed up” as if he was “coming from an event.”

¶ 10 Officer Havens spoke with defendant, who reported the driver of the crashed vehicle was

his wife. During the conversation, Officer Havens noticed defendant “smelled of alcohol,” had

slurred speech, swayed back and forth, and stumbled. Defendant stated he wanted to go with

his wife to the hospital. Officer Havens asked defendant how he was planning on doing that,

to which defendant stated he was going to follow his wife. Officer Havens asked defendant

how he arrived at the scene, to which defendant told Officer Havens that information was not

important.

¶ 11 Officer Havens spoke with another police officer at the scene about defendant’s condition

and the fact he was unsure how defendant arrived at the scene. Officer Havens testified a

security guard at nearby business, Dana Embrey, then informed him that she observed

defendant arrive in a van, which was parked across the roadway, and that defendant had exited

from the front driver’s side of the vehicle. Officer Havens observed the van, which he testified

was not present when he arrived at the scene.

¶ 12 After speaking with Embrey, Officer Havens went and spoke with other individuals who

were nearby outside. Those individuals reported they heard a crash and then came outside from

their homes to see what happened. Officer Havens then spoke with Embrey again to confirm

her account. During that conversation, Embrey pointed toward defendant and stated she

thought defendant was the person she observed exit the van.

¶ 13 Officer Havens spoke with defendant again. This conversation occurred in front of Officer

Havens’s patrol vehicle and was recorded. An audio and video recording of the conversation

was entered into evidence. During the conversation, defendant swayed back and forth,

struggled with balancing himself, had slurred speech, was unable to get his identification card

out of his wallet, admitted to having a “couple of shots,” and refused field sobriety testing.

Officer Havens again asked defendant how he arrived at the scene, to which defendant reported

his mother had driven him there. Officer Havens then asked defendant where his mother was,

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to which defendant stated she was at home. Defendant called his mother from his cell phone

and placed the call on speakerphone. Defendant asked his mother to pick him up from where

she had dropped him off. Officer Havens testified defendant’s mother “kept saying she didn’t

know where he was at and asked him what he was doing.”

¶ 14 Officer Havens formed the opinion, based upon his training, experience, and observations,

that defendant drove to the scene while impaired by alcohol. Officer Havens arrested

defendant. During a search incident to arrest, the keys to the van were not discovered.

¶ 15 Officer Havens testified about an incident that occurred after defendant was transported to

the jail. Defendant stated he needed to use the restroom, to which Officer Havens told him he

could use it once they entered the “intox room.” Defendant then proceeded to pull down his

pants, expose himself, and indicate he was going to relieve himself. Officer Havens then moved

defendant into the intox room to use the bathroom. An audio and video recording of defendant

inside the intox room was entered into evidence. Defendant refused to take a breath test.

¶ 16 The van at the scene was inventoried and towed. No keys or proof of insurance was

discovered. The van was registered to defendant’s mother.

¶ 17 Embrey testified to observing the van arrive at the scene and believing there were two

people inside the van upon its arrival. Embrey testified she did not see who exited from the

front driver’s side of the vehicle and did not recall Officer Havens asking her about the same.

Embrey spoke with a private investigator in April 2019 and told the investigator she believed

defendant exited the van from the passenger side. Embrey acknowledged she “may not be

exactly correct” on which side she saw defendant exit the van.

¶ 18 Defendant’s mother testified she drove defendant to the scene in her van. After arriving at

the scene, she walked to a friend’s home a couple blocks away, taking the keys to the van with

her. She did not stay with defendant because she did not “see eye to eye” with defendant’s

wife. Defendant’s mother testified she later received a telephone call from defendant but did

not speak with him. After learning her van had been towed, she went and obtained it with her

keys.

¶ 19 The State submitted a certified copy of a driving abstract for defendant, which indicated:

“REVOCATION WAS IN EFFECT ON 05-06-2018.” It did not contain any other information.

¶ 20 Based upon the evidence presented, the trial court found the State had proven defendant

guilty of the charges contained in counts I through IV. With respect to counts I through III, the

court specifically found “the State has proven beyond a reasonable doubt that Mr. May did

drive under the influence of alcohol.”

¶ 21 D. Posttrial Proceedings

¶ 22 Following the bench trial, defendant filed a motion for a new trial, arguing the State failed

to prove that he drove or was in actual physical control of a vehicle. The trial court denied

defendant’s motion and then proceeded to sentencing. At sentencing, the State presented

evidence that defendant had three prior DUI violations and that defendant’s license was

revoked for a DUI violation at the time he committed the charged DUI. The court entered

judgment convicting defendant of counts I through IV and sentencing him to four, concurrently

imposed terms of four years’ imprisonment.

¶ 23 This appeal followed.

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¶ 24 II. ANALYSIS

¶ 25 On appeal, defendant argues (1) the State failed to prove him guilty of counts I and II,

where it did not present any evidence at trial establishing that he had prior DUI violations and

that his license was revoked for a DUI violation at the time he committed the charged DUI;

(2) the trial court erroneously accepted his waiver of his right to a jury trial, where it did not

appropriately admonish him to ensure his waiver was understandingly made; and (3) his

convictions on two of the counts of aggravated DUI violate the one-act, one-crime rule, where

the convictions on the three counts of aggravated DUI stem from the same physical act.

¶ 26 A. Sufficiency of the Evidence

¶ 27 First, defendant argues the State failed to prove him guilty of counts I and II, where it did

not present any evidence at trial establishing that he had prior DUI violations and that his

license was revoked for a DUI violation at the time he committed the charged DUI. The State

disagrees, contending it was not required to present any such evidence at trial to prove

defendant guilty of counts I and II.

¶ 28 When presented with a challenge to the sufficiency of the evidence, our 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. Jackson, 2020 IL 124112, ¶ 64, 162 N.E.3d 223. In this case, it is undisputed the State did

not present any evidence at trial to establish that defendant had prior DUI violations or that

defendant’s license was revoked for a DUI violation at the time he committed the charged DUI.

The dispute, instead, concerns whether the existence of the prior DUI violations and the license

revocation for a DUI violation at the time of the charged DUI were essential elements of the

charged offenses, which the State was required to prove at trial. To resolve this controversy,

we must construe the statute under which defendant was convicted, section 11-501 of the Code

(625 ILCS 5/11-501 (West 2018)). This presents an issue of law, which we review de novo.

People v. Newton, 2018 IL 122958, ¶ 14, 120 N.E.3d 948.

¶ 29 When construing a statute, our primary objective “is to ascertain and give effect to the

legislature’s intent.” People v. Ashley, 2020 IL 123989, ¶ 36, 162 N.E.3d 200. The best

indicator of legislative intent is the language of the statute, given its plain and ordinary

meaning. Id. We further must “view the statute as a whole, construing words and phrases in

light of other relevant statutory provisions and not in isolation.” Id.

¶ 30 Section 11-501 of the Code (625 ILCS 5/11-501 (West 2018)) is titled: “Driving while

under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or

any combination thereof.” It provides as follows:

“(a) A person shall not drive or be in actual physical control of any vehicle within

this State while:

(1) the alcohol concentration in the person’s blood, other bodily substance, or

breath is 0.08 or more based on the definition of blood and breath units in Section

11-501.2;

(2) under the influence of alcohol;

(3) under the influence of any intoxicating compound or combination of

intoxicating compounds to a degree that renders the person incapable of driving

safely;

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(4) under the influence of any other drug or combination of drugs to a degree

that renders the person incapable of safely driving;

(5) under the combined influence of alcohol, other drug or drugs, or intoxicating

compound or compounds to a degree that renders the person incapable of safely

driving;

(6) there is any amount of a drug, substance, or compound in the person’s

breath, blood, other bodily substance, or urine resulting from the unlawful use or

consumption of a controlled substance listed in the Illinois Controlled Substances

Act, an intoxicating compound listed in the Use of Intoxicating Compounds Act,

or methamphetamine as listed in the Methamphetamine Control and Community

Protection Act; or

(7) the person has, within 2 hours of driving or being in actual physical control

of a vehicle, a tetrahydrocannabinol concentration in the person’s whole blood or

other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-

501.2 of this Code. Subject to all other requirements and provisions under this

Section, this paragraph (7) does not apply to the lawful consumption of cannabis

by a qualifying patient licensed under the Compassionate Use of Medical Cannabis

Pilot Program Act who is in possession of a valid registry card issued under that

Act, unless that person is impaired by the use of cannabis.

(b) The fact that any person charged with violating this Section is or has been

legally entitled to use alcohol, cannabis under the Compassionate Use of Medical

Cannabis Pilot Program Act, other drug or drugs, or intoxicating compound or

compounds, or any combination thereof, shall not constitute a defense against any

charge of violating this Section.

(c) Penalties.

(1) Except as otherwise provided in this Section, any person convicted of

violating subsection (a) of this Section is guilty of a Class A misdemeanor.

(2) A person who violates subsection (a) or a similar provision a second time

shall be sentenced to a mandatory minimum term of either 5 days of imprisonment

or 240 hours of community service in addition to any other criminal or

administrative sanction.

(3) A person who violates subsection (a) is subject to 6 months of

imprisonment, an additional mandatory minimum fine of $1,000, and 25 days of

community service in a program benefiting children if the person was transporting

a person under the age of 16 at the time of the violation.

(4) A person who violates subsection (a) a first time, if the alcohol

concentration in his or her blood, breath, other bodily substance, or urine was 0.16

or more based on the definition of blood, breath, other bodily substance, or urine

units in Section 11-501.2, shall be subject, in addition to any other penalty that may

be imposed, to a mandatory minimum of 100 hours of community service and a

mandatory minimum fine of $500.

(5) A person who violates subsection (a) a second time, if at the time of the

second violation the alcohol concentration in his or her blood, breath, other bodily

substance, or urine was 0.16 or more based on the definition of blood, breath, other

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bodily substance, or urine units in Section 11-501.2, shall be subject, in addition to

any other penalty that may be imposed, to a mandatory minimum of 2 days of

imprisonment and a mandatory minimum fine of $1,250.

(d) Aggravated driving under the influence of alcohol, other drug or drugs, or

intoxicating compound or compounds, or any combination thereof.

(1) Every person convicted of committing a violation of this Section shall be

guilty of aggravated driving under the influence of alcohol, other drug or drugs, or

intoxicating compound or compounds, or any combination thereof if:

(A) the person committed a violation of subsection (a) or a similar provision

for the third or subsequent time;

(B) the person committed a violation of subsection (a) while driving a

school bus with one or more passengers on board;

(C) the person in committing a violation of subsection (a) was involved in

a motor vehicle accident that resulted in great bodily harm or permanent

disability or disfigurement to another, when the violation was a proximate cause

of the injuries;

(D) the person committed a violation of subsection (a) and has been

previously convicted of violating Section 9-3 of the Criminal Code of 1961 or

the Criminal Code of 2012 or a similar provision of a law of another state

relating to reckless homicide in which the person was determined to have been

under the influence of alcohol, other drug or drugs, or intoxicating compound

or compounds as an element of the offense or the person has previously been

convicted under subparagraph (C) or subparagraph (F) of this paragraph (1);

(E) the person, in committing a violation of subsection (a) while driving at

any speed in a school speed zone at a time when a speed limit of 20 miles per

hour was in effect under subsection (a) of Section 11-605 of this Code, was

involved in a motor vehicle accident that resulted in bodily harm, other than

great bodily harm or permanent disability or disfigurement, to another person,

when the violation of subsection (a) was a proximate cause of the bodily harm;

(F) the person, in committing a violation of subsection (a), was involved in

a motor vehicle, snowmobile, all-terrain vehicle, or watercraft accident that

resulted in the death of another person, when the violation of subsection (a) was

a proximate cause of the death;

(G) the person committed a violation of subsection (a) during a period in

which the defendant’s driving privileges are revoked or suspended, where the

revocation or suspension was for a violation of subsection (a) or a similar

provision, Section 11-501.1, paragraph (b) of Section 11-401, or for reckless

homicide as defined in Section 9-3 of the Criminal Code of 1961 or the Criminal

Code of 2012;

(H) the person committed the violation while he or she did not possess a

driver’s license or permit or a restricted driving permit or a judicial driving

permit or a monitoring device driving permit;

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(I) the person committed the violation while he or she knew or should have

known that the vehicle he or she was driving was not covered by a liability

insurance policy;

(J) the person in committing a violation of subsection (a) was involved in a

motor vehicle accident that resulted in bodily harm, but not great bodily harm,

to the child under the age of 16 being transported by the person, if the violation

was the proximate cause of the injury;

(K) the person in committing a second violation of subsection (a) or a

similar provision was transporting a person under the age of 16; or

(L) the person committed a violation of subsection (a) of this Section while

transporting one or more passengers in a vehicle for-hire.

(2)(A) Except as provided otherwise, a person convicted of aggravated

driving under the influence of alcohol, other drug or drugs, or intoxicating

compound or compounds, or any combination thereof is guilty of a Class 4

felony.

(B) A third violation of this Section or a similar provision is a Class 2

felony. If at the time of the third violation the alcohol concentration in his or

her blood, breath, other bodily substance, or urine was 0.16 or more based on

the definition of blood, breath, other bodily substance, or urine units in Section

11-501.2, a mandatory minimum of 90 days of imprisonment and a mandatory

minimum fine of $2,500 shall be imposed in addition to any other criminal or

administrative sanction. If at the time of the third violation, the defendant was

transporting a person under the age of 16, a mandatory fine of $25,000 and 25

days of community service in a program benefiting children shall be imposed

in addition to any other criminal or administrative sanction.

(C) A fourth violation of this Section or a similar provision is a Class 2

felony, for which a sentence of probation or conditional discharge may not be

imposed. If at the time of the violation, the alcohol concentration in the

defendant’s blood, breath, other bodily substance, or urine was 0.16 or more

based on the definition of blood, breath, other bodily substance, or urine units

in Section 11-501.2, a mandatory minimum fine of $5,000 shall be imposed in

addition to any other criminal or administrative sanction. If at the time of the

fourth violation, the defendant was transporting a person under the age of 16 a

mandatory fine of $25,000 and 25 days of community service in a program

benefiting children shall be imposed in addition to any other criminal or

administrative sanction.

(D) A fifth violation of this Section or a similar provision is a Class 1 felony,

for which a sentence of probation or conditional discharge may not be imposed.

If at the time of the violation, the alcohol concentration in the defendant’s blood,

breath, other bodily substance, or urine was 0.16 or more based on the definition

of blood, breath, other bodily substance, or urine units in Section 11-501.2, a

mandatory minimum fine of $5,000 shall be imposed in addition to any other

criminal or administrative sanction. If at the time of the fifth violation, the

defendant was transporting a person under the age of 16, a mandatory fine of

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$25,000, and 25 days of community service in a program benefiting children

shall be imposed in addition to any other criminal or administrative sanction.

(E) A sixth or subsequent violation of this Section or similar provision is a

Class X felony. If at the time of the violation, the alcohol concentration in the

defendant’s blood, breath, other bodily substance, or urine was 0.16 or more

based on the definition of blood, breath, other bodily substance, or urine units

in Section 11-501.2, a mandatory minimum fine of $5,000 shall be imposed in

addition to any other criminal or administrative sanction. If at the time of the

violation, the defendant was transporting a person under the age of 16, a

mandatory fine of $25,000 and 25 days of community service in a program

benefiting children shall be imposed in addition to any other criminal or

administrative sanction.

(F) For a violation of subparagraph (C) of paragraph (1) of this subsection

(d), the defendant, if sentenced to a term of imprisonment, shall be sentenced

to not less than one year nor more than 12 years.

(G) A violation of subparagraph (F) of paragraph (1) of this subsection (d)

is a Class 2 felony, for which the defendant, unless the court determines that

extraordinary circumstances exist and require probation, shall be sentenced to:

(i) a term of imprisonment of not less than 3 years and not more than 14 years

if the violation resulted in the death of one person; or (ii) a term of imprisonment

of not less than 6 years and not more than 28 years if the violation resulted in

the deaths of 2 or more persons.

(H) For a violation of subparagraph (J) of paragraph (1) of this subsection

(d), a mandatory fine of $2,500, and 25 days of community service in a program

benefiting children shall be imposed in addition to any other criminal or

administrative sanction.

(I) A violation of subparagraph (K) of paragraph (1) of this subsection (d),

is a Class 2 felony and a mandatory fine of $2,500, and 25 days of community

service in a program benefiting children shall be imposed in addition to any

other criminal or administrative sanction. If the child being transported suffered

bodily harm, but not great bodily harm, in a motor vehicle accident, and the

violation was the proximate cause of that injury, a mandatory fine of $5,000

and 25 days of community service in a program benefiting children shall be

imposed in addition to any other criminal or administrative sanction.

(J) A violation of subparagraph (D) of paragraph (1) of this subsection (d)

is a Class 3 felony, for which a sentence of probation or conditional discharge

may not be imposed.

(3) Any person sentenced under this subsection (d) who receives a term of

probation or conditional discharge must serve a minimum term of either 480 hours

of community service or 10 days of imprisonment as a condition of the probation

or conditional discharge in addition to any other criminal or administrative

sanction.

(e) Any reference to a prior violation of subsection (a) or a similar provision

includes any violation of a provision of a local ordinance or a provision of a law of

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another state or an offense committed on a military installation that is similar to a

violation of subsection (a) of this Section.

(f) The imposition of a mandatory term of imprisonment or assignment of

community service for a violation of this Section shall not be suspended or reduced by

the court.

(g) Any penalty imposed for driving with a license that has been revoked for a

previous violation of subsection (a) of this Section shall be in addition to the penalty

imposed for any subsequent violation of subsection (a).

(h) For any prosecution under this Section, a certified copy of the driving abstract

of the defendant shall be admitted as proof of any prior conviction.” Id.

¶ 31 Applying the principles of statutory construction set forth above, we glean the following

from section 11-501. Subsection (a) sets forth various ways in which a violation of section 11-

501 can be proven. See id. § 11-501(a)(1) to (a)(7). Relevant here, subsection (a)(2) provides

it is a violation of section 11-501 for any person to drive or be in actual physical control of a

vehicle while under the influence of alcohol. Id. § 11-501(a)(2). Subsection (c) sets forth the

sentencing classification and certain penalties for a violation of section 11-501. See id. § 11-

501(c)(1) to (c)(5). It provides a first violation is generally a Class A misdemeanor. Id. § 11-

501(c)(1). Subsection (d) sets forth various ways in which a violation of section 11-501 will

result in an aggravated offense (see id. § 11-501(d)(1)(A) to (d)(1)(L)) and an elevated

sentencing classification and heightened penalties (see id. § 11-501(d)(2) to (d)(3)). Relevant

here, subsection (d)(1)(A) provides that a violation of subsection (a) will result in an

aggravated offense where it is the person’s third or subsequent DUI violation, and subsection

(d)(2)(C) elevates a fourth violation to a Class 2 felony. Id. § 11-501(d)(1)(A), (d)(2)(C). Also

relevant here, subsection (d)(1)(G) provides that a violation of subsection (a) will result in an

aggravated offense where the person committed the violation when driving privileges were

revoked as a result of a prior DUI violation, and subsection (d)(2)(A) elevates that violation to

a Class 4 felony. Id. § 11-501(d)(1)(G), (d)(2)(A).

¶ 32 In our review, section 11-501 establishes a detailed framework for the criminal offense of

DUI. The essential elements of that offense are set forth in subsection (a). See id. § 11-

501(a)(1) to (a)(7). Subsection (d), in turn, sets forth sentencing enhancement factors, which,

if proven, will result in an aggravated offense and an elevated sentencing classification and

heightened penalties. See id. § 11-501(d)(1) to (d)(3). Accordingly, we conclude the existence

of prior DUI violations and a license revocation for a DUI violation at the time of the charged

DUI were not essential elements of the charged offenses that the State was required to prove

at trial but rather sentencing enhancement factors.

¶ 33 To be clear, our interpretation of section 11-501 does not mean the sentencing enhancement

factors set forth in subsection (d) need not be proven. To the contrary, due process requires all

facts necessary to establish the statutory sentencing range within which the defendant’s

sentence falls must be proven beyond a reasonable doubt. People v. Swift, 202 Ill. 2d 378, 383,

781 N.E.2d 292, 295 (2002) (discussing the rule set forth in Apprendi v. New Jersey, 530 U.S.

466, 490 (2000)). Ordinarily, evidence of a sentencing enhancement factor should be presented

to the trier of fact for a determination of the factor’s existence; however, the exception,

applicable here, is where the sentencing enhancement factor is based on a prior conviction, in

which case the evidence should be presented to the trier of law for a determination of the

factor’s existence. 725 ILCS 5/111-3(c-5) (West 2018) (“[I]f an alleged fact (other than the

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fact of a prior conviction) is not an element of an offense but is sought to be used to increase

the range of penalties for the offense beyond the statutory maximum that could otherwise be

imposed for the offense, the alleged fact must be included in the charging instrument or

otherwise provided to the defendant through a written notification before trial, submitted to a

trier of fact as an aggravating factor, and proved beyond a reasonable doubt.”); People v.

Owens, 2016 IL App (4th) 140090, ¶ 39, 59 N.E.3d 187 (finding a license revocation based on

a DUI is the functional equivalent of a prior conviction, which need not be proven to the jury

but instead is reserved for sentencing). Here, evidence of the sentencing enhancement factors

which were based upon prior convictions was properly presented to the trier of law at

sentencing for determinations of the factors’ existence. Defendant does not raise any

complaints with the sufficiency of that evidence or the trial court’s determinations that the

sentencing enhancement factors had been proven.

¶ 34 Defendant acknowledges our interpretation of section 11-501 is supported by a line of cases

that found the existence of prior DUI violations is not an element under section 11-501. See,

e.g., People v. Thompson, 328 Ill. App. 3d 360, 364, 765 N.E.2d 1209, 1212 (2002) (“the prior

convictions are not elements of the [aggravated DUI] offense” (emphasis omitted)); People v.

Robinson, 368 Ill. App. 3d 963, 977, 859 N.E.2d 232, 246 (2006) (“Prior DUI violations are

not an element of an aggravated DUI charge.”); People v. Lush, 372 Ill. App. 3d 629, 635, 867

N.E.2d 1199, 1203 (2007) (“[P]rior DUI convictions do not constitute an element of an

aggravated DUI charge.”). Defendant further does not dispute that, since the above cases were

decided, the legislature has made multiple amendments to section 11-501, none of which

expressed a legislative intent contrary to the positions set forth in those cases. See People v.

Way, 2017 IL 120023, ¶ 27, 89 N.E.3d 355 (“We assume not only that the General Assembly

acts with full knowledge of previous judicial decisions but also that its silence on an issue in

the face of those decisions indicates its acquiescence to them.”).

¶ 35 Nevertheless, defendant contends our interpretation of section of 11-501 and any authority

supporting that interpretation cannot withstand the supreme court’s more recent analysis in

People v. Zimmerman, 239 Ill. 2d 491, 942 N.E.2d 1228 (2010). We disagree. Contrary to

defendant’s assertion, the statute construed in Zimmerman, section 24-1.6 of the Criminal Code

of 1961 (Criminal Code) (720 ILCS 5/24-1.6 (West 2006)), is not structurally similar to section

11-501. Section 24-1.6 sets forth the offense of aggravated unlawful use of a weapon, an

offense separate and distinct from the offense of unlawful use of a weapon set forth in section

24-1 of the Criminal Code (id. § 24-1). Zimmerman, 239 Ill. 2d at 500. Conversely, aggravated

DUI is not a separate and distinct criminal offense from simple or misdemeanor DUI. See

People v. Quigley, 183 Ill. 2d 1, 10, 697 N.E.2d 735, 739-40 (1998) (“[A]ggravated DUI occurs

when an individual commits some form of misdemeanor DUI, in violation of paragraph (a),

and other circumstances are present. The legislature added aggravating factors that change the

misdemeanor DUI to a Class 4 felony. The essential and underlying criminal act, however,

remains the same: driving while under the influence.”). As such, we find the analysis in

Zimmerman does not change our interpretation of section 11-501.

¶ 36 Defendant also contends our interpretation and any authority supporting that interpretation

are illogical, given the supreme court’s previous finding in People v. Martin, 2011 IL 109102,

955 N.E.2d 1058, that subsection (d)(1)(F) sets forth an essential element of the offense of

aggravated DUI, and its previous pronouncement in Zimmerman, 239 Ill. 2d at 500, that “it

would be illogical for the General Assembly to include a sentence-enhancing factor in a list

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with eight other factors which constitute an element of the offense.” We disagree. Contrary to

defendant’s assertion, Martin did not find subsection (d)(1)(F) set forth an essential element;

instead, the court merely found the proximate cause requirement of that subsection was proven

beyond a reasonable doubt. Martin, 2011 IL 109102, ¶¶ 20, 28. As discussed above, sentencing

enhancement factors must be proven beyond a reasonable doubt. In fact, we note the supreme

court in Martin emphasized its position that aggravated DUI is not a separate offense—

“aggravated DUI is simply misdemeanor DUI with an aggravating factor, which turns the

offense into a felony.” Id. ¶ 24.

¶ 37 Defendant further cites People v. Mumaugh, 2018 IL App (3d) 140961, 94 N.E.3d 237, in

support of his contention that the factors set forth in subsection (d)(1) are essential elements.

In that case, the dispute concerned whether the State proved the proximate cause requirement

under section 11-501(d)(1)(C). Id. ¶ 24. In addressing that dispute, the court stated the

proximate cause requirement was an element of the offense of aggravated DUI. Id. ¶¶ 24, 37.

To the extent the court in Mumaugh found section 11-501(d)(1)(C) set forth an essential

element as opposed to a sentencing enhancement factor that had to be proven, we disagree with

that position. In fact, we note another panel of that district issued a recent order rejecting that

position and interpreting section 11-501 in the same manner set forth in this opinion. See

People v. Brose, 2021 IL App (3d) 180630-U, ¶ 18 (“[T]he unambiguous structure reveals the

legislature’s intent that subsections (c) and (d) provide sentence enhancements for successive

DUI convictions rather than additional elements of the offense.”).

¶ 38 In a final attempt to discredit our interpretation, defendant cites the following statement

and parenthetical citation from the supreme court in People ex rel. Glasgow v. Carlson, 2016

IL 120544, ¶ 19, 72 N.E.3d 340:

“[I]t is worth noting that committing a third DUI is only one of several ways to be

guilty of aggravated DUI under section 11-501. See 625 ILCS 5/11-501(d)(1)(B) to

(d)(1)(L) (West 2014) (identifying other circumstances that constitute aggravated DUI,

none predicated on the commission of a third DUI).”

Defendant contends “[a] list of different ‘ways’ that a crime may be committed is a list of

alternative elements of that crime, not a list of sentencing factors.” We disagree. The

characterization of subsection (d)(1) as setting forth a list of different “ways” in which a

defendant can be guilty of aggravated DUI or “circumstances” that can constitute aggravated

DUI is not a pronouncement that those “ways” or “circumstances” are essential elements that

must be proven at trial as opposed to sentencing enhancement factors.

¶ 39 In summary, we reject defendant’s position that the State was required to present evidence

at trial establishing that he had prior DUI violations and that his license was revoked at the

time he committed the charged DUI in order to prove him guilty of counts I and II. Defendant

has otherwise not presented any alternative basis to attack the sufficiency of the evidence to

sustain his convictions.

¶ 40 B. Jury Trial Waiver

¶ 41 Next, defendant argues the trial court erroneously accepted his waiver of his right to a jury

trial, where it did not appropriately admonish him to ensure his waiver was understandingly

made. The State disagrees, contending defendant made a valid waiver of his right to a jury

trial.

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¶ 42 At the outset, defendant concedes he forfeited the issue by failing to raise it before the trial

court but asserts his forfeiture may be excused under the plain-error doctrine. The plain-error

doctrine provides a “narrow and limited exception” to the general rule of forfeiture. People v.

Reese, 2017 IL 120011, ¶ 72, 102 N.E.3d 126. Under the plain-error doctrine, a reviewing

court may disregard a defendant’s forfeiture and consider an unpreserved claim of error in two

circumstances:

“(1) where a clear or obvious error occurred and the evidence is so closely balanced

that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error and (2) where a clear or obvious error occurred

and that error is so serious that it affected the fairness of the defendant’s trial and

challenged the integrity of the judicial process, regardless of the closeness of the

evidence.” (Internal quotation marks omitted.) People v. Harvey, 2018 IL 122325, ¶ 15,

115 N.E.3d 172.

The defendant bears the burden of persuasion in establishing plain error. People v. Wilmington,

2013 IL 112938, ¶ 43, 983 N.E.2d 1015. Our analysis under the plain-error doctrine begins

with whether defendant has shown the occurrence of a clear or obvious error. People v.

Eppinger, 2013 IL 114121, ¶ 19, 984 N.E.2d 475.

¶ 43 The right to a trial by jury is guaranteed by both our federal and state constitutions. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. That right, however, may be waived

by a defendant, so long as it is done knowingly and voluntarily. People v. Bannister, 232 Ill.

2d 52, 65, 902 N.E.2d 571, 581 (2008); see also 725 ILCS 5/103-6 (West 2018) (“Every person

accused of an offense shall have the right to a trial by jury unless *** understandingly waived

by defendant in open court ***.”).

¶ 44 The trial court has the duty of ensuring the validity of a jury trial waiver. Bannister, 232

Ill. 2d at 66. “The determination of whether a jury waiver is valid cannot rest on any precise

formula, but rather depends on the facts and circumstances of each particular case.” Id. “[A]

trial court need not give any specific admonition or advice for a defendant to make an effective

jury waiver.” Id. Where, as here, the facts are not in dispute on review, the validity of a jury

trial waiver is a legal issue, which we review de novo. People v. Bracey, 213 Ill. 2d 265, 270,

821 N.E.2d 253, 255 (2004).

¶ 45 In this case, defense counsel, in defendant’s presence and over no objection from him,

expressed to the trial court defendant’s desire to waive his right to a jury trial. The court then

admonished defendant of his constitutional right to have a jury trial and asked if it was, in fact,

defendant’s desire to waive that right, which defendant confirmed. The court also showed

defendant a written jury trial waiver, which has an apparent signature of defendant under

language indicating, “I hereby waive the right to a trial by jury in this cause,” and defendant

confirmed it was his signature on the written waiver. The court asked defendant whether he

was knowingly and voluntarily waiving his right to a jury trial, to which defendant stated,

“Yes.” The court accepted defendant’s jury trial waiver and scheduled a “bench trial” for later

that year.

¶ 46 While defendant acknowledges his jury waiver was voluntarily made, he disputes whether

it was done knowingly. Specifically, he contends “nothing in the record indicates [he]

understood his decision.” We disagree. “When a defendant waives the right to a jury trial, the

pivotal knowledge that the defendant must understand—with its attendant consequences—is

that the facts of the case will be determined by a judge and not a jury.” Bannister, 232 Ill. 2d

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at 69. Here, the record clearly shows defendant, who was represented by counsel, confirmed

that he had previously signed a written jury trial waiver and that he knowingly wanted to waive

his right to a trial by jury. At no point did defendant, an individual who had substantial

experience with the criminal court system, express a lack of understanding as to his right to a

jury trial, the function of a jury trial, or the function of a bench trial. This record supports a

finding that defendant knowingly waived his right to a jury trial. Accordingly, we find no error

in the trial court’s acceptance of defendant’s jury trial waiver. Defendant has failed to establish

clear or obvious error, and therefore, we hold him to his forfeiture.

¶ 47 Although we find defendant has failed to establish any error with the trial court’s

acceptance of his waiver of his right to a jury trial, we note any claimed error on this issue

could have been avoided by simply asking and eliciting a response from defendant as to

whether he understood that his waiver of a right to a trial by jury meant the facts of the case

will be determined by a judge and not a jury. See People v. Chitwood, 67 Ill. 2d 443, 448-49,

367 N.E.2d 1331, 1334 (1977) (“ ‘It takes but a few moments of a trial judge’s time to directly

elicit from a defendant a response indicating that he understands that he is entitled to a jury

trial, that he understands what a jury trial is, and whether or not he wishes to be tried by a jury

or by the court without a jury. This simple procedure incorporated in the record will reduce the

countless contentions raised in the reviewing courts about jury waivers.’ ” (Emphasis added.)

(quoting People v. Bell, 104 Ill. App. 2d 479, 482, 244 N.E.2d 321, 323 (1968))).

¶ 48 C. One-Act, One-Crime Rule

¶ 49 Last, defendant argues his convictions on two of the counts of aggravated DUI violate the

one-act, one-crime rule, where the convictions on the three counts of aggravated DUI stem

from the same physical act. The State agrees.

¶ 50 Defendant concedes he forfeited the issue by failing to raise it before the trial court but

asserts his forfeiture may be excused under the plain-error doctrine. Again, our analysis under

the plain-error doctrine begins with whether defendant has shown the occurrence of a clear or

obvious error. Eppinger, 2013 IL 114121, ¶ 19.

¶ 51 “The one-act, one-crime rule prohibits convictions for multiple offenses that are based on

precisely the same physical act.” People v. Smith, 2019 IL 123901, ¶ 13, 155 N.E.3d 396. An

“ ‘[a]ct’ ” is defined as “any overt or outward manifestation which will support a different

offense.” People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977). An alleged

violation of the one-act, one-crime rule is reviewed de novo. Smith, 2019 IL 123901, ¶ 15.

¶ 52 In this case, defendant’s convictions on counts I though III are premised on the same

physical act—an instance of driving while under the influence of alcohol on the morning of

May 6, 2018. Accordingly, two of defendant’s three convictions violate the one-act, one-crime

rule. Defendant has established clear and obvious error.

¶ 53 Our analysis under the plain-error doctrine turns next to whether defendant has shown the

evidence is so closely balanced that the error alone threatened to tip the scales of justice against

the defendant, regardless of the seriousness of the error, or that the error is so serious that it

affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,

regardless of the closeness of the evidence. Harvey, 2018 IL 122325, ¶ 15. Our supreme court

has recognized a one-act, one-crime violation is reviewable under the plain-error doctrine

because it affects the integrity of the judicial process. Smith, 2019 IL 123901, ¶ 14.

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Accordingly, we excuse defendant’s forfeiture under the second prong of the plain-error

doctrine and now consider the appropriate relief for the one-act, one-crime violation.

¶ 54 Where, on review, there are multiple convictions based on the same physical act, the

convictions on the less serious offenses should be vacated and the conviction on the more

serious offense should stand. See People v. Artis, 232 Ill. 2d 156, 170, 902 N.E.2d 677, 686

(2009) (“[A] sentence should be imposed on the more serious offense and the less serious

offense should be vacated.”). “In determining which offense is the more serious, a reviewing

court compares the relative punishments prescribed by the legislature for each offense.” Id.

¶ 55 In this case, defendant’s conviction on count I, which is a Class 2 felony, is a more serious

offense than his convictions on counts II and III, which are Class 4 felonies. Accordingly, we

vacate defendant’s convictions on counts II and III.

¶ 56 III. CONCLUSION

¶ 57 We vacate defendant’s convictions on counts II and III but otherwise affirm the trial court’s

judgment.

¶ 58 Affirmed in part and vacated in part.

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