People v. Lavallier

August 10, 1998
                               NO. 5-96-0540

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, )  Appeal from the 
                                     )  Circuit Court of 
     Plaintiff-Appellee,             )  Massac County.
                                     )  
v.                                   )  No. 95-CF-124
                                     )  
LARRY LAVALLIER,                     )  Honorable
                                     )  C. David Nelson, 
     Defendant-Appellant.            )  Judge, presiding.  
_________________________________________________________________

     JUSTICE CHAPMAN delivered the opinion of the court:

     The defendant, Larry Lavallier, was convicted by a jury of two
counts of aggravated driving under the influence of alcohol
(aggravated driving) (625 ILCS 5/11-501(d)(1)(C)(2) (West 1994)). 
Each conviction involved a separate victim.  He was sentenced to
concurrent terms of six years' imprisonment and to pay restitution
for medical expenses of $55,818.97 to John Pruett and $15,093.70 to
Kalisa Brewer.  On appeal, defendant contends that (1) one of the
convictions for aggravated driving should be vacated as there was
only one act of driving, (2) the restitution order is not
authorized by statute and, therefore, the restitution portion of
the judgment order is void, and (3) the amendments to the Unified
Code of Corrections (730 ILCS 3-6-3(a)(2)(ii) (West Supp. 1995))
are void because the amendments were part of an act by the General
Assembly, Public Act 89-404, which violated the single-subject rule
of article IV, section 8(d), of the Illinois Constitution (Ill.
Const. 1970, art. IV,  8(d)).
     Defendant first contends that as more than one offense may not
be carved from the same physical act, one of the convictions must
be vacated.  See People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 851 (1977).  He argues that his single act in this instance
was driving the automobile which caused injury to Pruett and
Brewer.  The State has confessed error.  This court is not bound by
the State's confession of error.  See People v. Kelly, 66 Ill. App.
2d 204, 209, 214 N.E.2d 290, 293 (1965).  In the case at bar, two
counts of aggravated driving arose because of separate injuries to
two different people.  Separate victims therefore require separate
convictions and sentences.  See People v. Davis, 105 Ill. App. 3d
129, 135, 434 N.E.2d 13, 17 (1982).
     In People v. Grover, 93 Ill. App. 3d 877, 417 N.E.2d 1093
(1981), the defendant was convicted of reckless homicide and three
counts of reckless conduct arising from an automobile collision. 
The majority of the panel members on the reviewing court rejected
the defendant's argument that since the death and injuries resulted
from his single act of driving, the reckless conduct conviction
must be vacated.  The court noted that a distinction existed
between cases where multiple offenses were committed against single
victims and those where single acts were directed against multiple
victims.  In finding that the defendant was properly convicted of
all four offenses, it noted that the reckless homicide offense and
each of the three reckless conduct offenses required proof of facts
that the others did not:  that injury occurred to separate persons
and their identity.  Grover, 93 Ill. App. 3d at 882-83, 417 N.E.2d 
at 1098; see also People v. Davis, 105 Ill. App. 3d 129, 135, 434 N.E.2d 13, 17 (1982); People v. Washington, 53 Ill. App. 3d 36, 38-
39, 368 N.E.2d 536, 538 (1977); People v. Smith, 86 Ill. App. 3d
575, 585, 408 N.E.2d 743, 751 (1980); People v. Bigsby, 52 Ill.
App. 3d 277, 283, 367 N.E.2d 358, 363 (1977); People v. Thomas, 43
Ill. App. 3d 328, 330, 356 N.E.2d 1362, 1364 (1976).  
     The distinction between acts affecting only one victim and
those affecting multiple victims was also noted in People v.
Butler, 64 Ill. 2d 485, 487-89, 356 N.E.2d 330, 332 (1976).  We
conclude that defendant was properly convicted of two offenses of
aggravated driving while under the influence of alcohol.  See
People v. Mercado, 119 Ill. App. 3d 461, 463, 456 N.E.2d 331, 333,
(1983).  
     Defendant relies on People v. Nelson, 210 Ill. App. 3d 977,
569 N.E.2d 1197 (1991).  Section 11-501(a)(1) of the Illinois
Vehicle Code makes the offense of driving with a blood-alcohol
level at or above 0.08 a separate statutory offense from driving
under the influence of alcohol, as stated in section 11-501(a)(2)
of the Illinois Vehicle Code.  625 ILCS 5/11-501(a)(1),(2) (West
1994); see Nelson, 210 Ill. App. 3d at 983, 569 N.E.2d  at 1201. 
The Nelson court held that a defendant cannot be convicted of two
driving under the influence charges where the offenses are based on
the same physical act.  Nelson, 210 Ill. App. 3d at 983, 569 N.E.2d 
at 1201.  Nelson is distinguishable from the case at bar as there
were not multiple victims in Nelson. 
     In People v. McHugh, 121 Ill. App. 3d 825, 460 N.E.2d 18
(1984), the defendant was convicted of two counts of reckless
homicide.  This court vacated one count; however, in McHugh, there
was only one victim.
     This court is aware of our supreme court's opinion in People
v. Cole, 172 Ill. 2d 85, 665 N.E.2d 1275 (1996), in which our
supreme court construed the home invasion statute as providing for
only one conviction based on one entry regardless of the number of
occupants.  Cole, 172 Ill. 2d  at 102, 665 N.E.2d  at 1283.  Section
12-11 of the Criminal Code of 1961, the home invasion statute,
speaks of a defendant's entry into, or presence in, a dwelling when
the defendant knows or has reason to know "that one or more persons
is present" and, further, of the defendant's use or threat of force
while armed "upon any person or persons" in the dwelling, and of
the defendant's intentional injury of "any person or persons" in
the dwelling.  720 ILCS 5/12-11 (West 1996).  No such reference to
more than one victim occurs in the statute defining aggravated
driving while under the influence of alcohol.
     Defendant next contends that the portion of the judgment order
requiring him to pay restitution is void because it does not state
whether the restitution is to be paid in one lump sum or over a
period of months.  Section 5-5-6(f) of the Unified Code of
Corrections provides, in pertinent part:  
     "Taking into consideration the ability of the defendant to
     pay, the court shall determine whether restitution shall be
     paid in a single payment or in installments ***."  730 ILCS
     5/5-5-6(f) (West 1994).  
The trial court's failure to define a specific payment schedule is
understandable, given that defendant had yet to serve his term and
there were questions about the regularity and amount of his future
income.  See People v. Brooks, 158 Ill. 2d 260, 272, 633 N.E.2d 692, 697 (1994).  This court concludes that the portion of the
judgment which required defendant to pay restitution was not void.
     Finally, defendant contends that the truth-in-sentencing
amendments to the Unified Code of Corrections are void because
those amendments were part of Public Act 89-404 and that public act
violates the single-subject rule of the Illinois Constitution.  In
sentencing defendant, the court said that under the amendments it
was to state approximately how long defendant would be
incarcerated.  The court went on to state that defendant was
eligible to receive day-for-day good-conduct credit and probably
would serve three years' imprisonment.  Section 3-6-3(a)(2)(ii) of
the Unified Code of Corrections, which requires certain defendants
to serve 85% of their sentences, provides:  
          "(2) The rules and regulations on early release shall
     provide, with respect to offenses committed on or after the
     effective date of this amendatory Act of 1995, the following:
               ***
               (ii) that a prisoner serving a sentence for attempt
          to commit first[-]degree murder, solicitation of murder,
          solicitation of murder for hire, intentional homicide of
          an unborn child, predatory criminal sexual assault of a
          child, aggravated criminal sexual assault, criminal
          sexual assault, aggravated kidnapping, aggravated battery
          with a firearm, heinous battery, aggravated battery of a
          senior citizen, or aggravated battery of a child shall
          receive no more than 4.5 days of good[-]conduct credit
          for each month of his or her sentence of imprisonment
          ***."  730 ILCS 5/3-6-3(a)(2)(ii) (West Supp. 1995).  
     Aggravated driving is not listed under this section;
therefore, defendant is not affected by the amendments as to the
amount of time he is to serve in prison.  The amount of good-
conduct credit as it pertains to aggravated driving was not
affected by the amendment.  This court cannot conceive of any
prejudice to defendant by the court's statement that defendant was
eligible for day-for-day good-conduct credit and that it expected
defendant to serve approximately three years' imprisonment.  The
opinions of People v. Reedy, 295 Ill. App. 3d 34, 692 N.E.2d 376
(1998), and People v. Pitts, 295 Ill. App. 3d 182, 691 N.E.2d 1174
(1998), which held that Public Act 89-404 was enacted in violation
of the single-subject rule of the Illinois Constitution, have no
bearing on this case. 

     Affirmed.

     WELCH, P.J., and KUEHN, J., concur.