Docket No. 105751.
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MAURICE A. ARTIS, Appellee.
Opinion filed January 23, 2009.
JUSTICE GARMAN delivered the judgment of the court, with
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
The issues in this appeal are whether this court should abandon
the one-act, one-crime doctrine of People v. King, 66 Ill. 2d 551
(1977), and if not, whether the State should be allowed to exercise its
prosecutorial discretion on appeal to choose which conviction should
survive and which should be vacated, where both offenses are of the
same legislative classification.
In September 2003, defendant, Maurice A. Artis, entered a plea
of guilty in the circuit court of Will County to two counts of
aggravated criminal sexual assault, perpetrated during the course of
residential burglary and home invasion (720 ILCS 5/12–14(a)(4)
(West 2002)), and one count each of home invasion (720 ILCS
5/12–11(a)(2) (West 2002)), residential burglary (720 ILCS 5/19–3(a)
(West 2002)), and unlawful restraint (720 ILCS 5/10–3(a) (West
The State’s factual basis for the guilty plea was that in the early
morning hours of April 1, 2003, defendant broke into the home of
A.W. When A.W. confronted defendant, he demanded that she give
him $100, which she did. Stating that $100 was not enough,
defendant forced A.W. into her bedroom, where he sexually assaulted
her. He then tied her to a chair, but she was able to free her hands and
The trial court sentenced defendant to concurrent terms of 20
years’ imprisonment on the aggravated criminal sexual assault
convictions, to be served consecutively to concurrent terms of 15
years for home invasion, 12 years for residential burglary, and an
extended-term sentence of 6 years for unlawful restraint. Defendant
filed postplea motions, which were denied. The appellate court
affirmed defendant’s convictions for aggravated criminal sexual
assault based on home invasion, and his convictions for residential
burglary and unlawful restraint. The court vacated the convictions for
aggravated criminal sexual assault based on residential burglary and
for home invasion. The court also vacated the extended-term sentence
for unlawful restraint and reduced the sentence to the maximum
nonextended term of three years. 377 Ill. App. 3d 216.
In the appellate court, defendant argued for the first time that the
conviction for aggravated criminal sexual assault based on residential
burglary should be vacated because it was based upon the same act of
penetration as the sexual assault conviction based on home invasion.
Defendant reasoned that the latter conviction was the more serious
and, thus, under the one-act, one-crime doctrine, the conviction based
upon residential burglary should be vacated. Defendant also argued
that his conviction for home invasion should be vacated as a lesserincluded offense of aggravated criminal sexual assault committed
during the course of home invasion. The State conceded before the
appellate court that one of the sexual assault convictions should be
vacated based on one-act, one-crime principles; however, the State
argued that the sexual assault conviction based upon residential
burglary was the more serious conviction and that, in any case, the
State should be allowed to elect which conviction should be vacated,
based upon prosecutorial discretion.
The appellate court rejected the State’s argument as to the relative
seriousness of the sexual assault convictions, noting that (1) home
invasion is a Class X offense with a possible sentencing range of 6 to
30 years, whereas residential burglary is a Class 1 offense with a
possible sentence of 4 to 15 years, and (2) the elements of the offense
of home invasion, as compared with those of residential burglary,
demonstrate that home invasion is a more serious offense than
residential burglary. The court concluded, based upon existing case
law, that the State lacked prosecutorial discretion to elect to vacate
what the court viewed as the more serious charge. 377 Ill. App. 3d at
221. We allowed the State’s petition for leave to appeal. 210 Ill. 2d
I. Standard of Review
Where, as here, the issues raised are ones purely of law, our
review is de novo. People v. Daniels, 187 Ill. 2d 301, 307 (1999).
II. One-Act, One-Crime Doctrine
The one-act, one-crime doctrine was articulated by this court in
People v. King, 66 Ill. 2d 551 (1977) as follows:
“Prejudice results to the defendant only in those instances
where more than one offense is carved from the same physical
act. Prejudice, with regard to multiple acts, exists only when
the defendant is convicted of more than one offense, some of
which are, by definition, lesser included offenses. Multiple
convictions and concurrent sentences should be permitted in
all other cases where a defendant has committed several acts,
despite the interrelationship of those acts. ‘Act,’ when used in
this sense, is intended to mean any overt or outward
manifestation which will support a different offense. We hold,
therefore, that when more than one offense arises from a
series of incidental or closely related acts and the offenses are
not, by definition, lesser included offenses, convictions with
concurrent sentences can be entered.” King, 66 Ill. 2d at 566.
The State argues that this court should abolish the one-act, onecrime doctrine because the rationale for the doctrine no longer exists.
That rationale, according to the State, is found in this court’s decision
in People v. Schlenger, 13 Ill. 2d 63 (1958). There, the defendant was
convicted of one count of armed robbery and one count of grand
larceny. Both charges arose from a taking of money from the same
person at the same place and time. The defendant entered pleas of
guilty to both counts and received concurrent sentences. On appeal,
the defendant argued that he should have been convicted of only one
crime, that of armed robbery, and that the sentence for grand larceny
was void. He argued that the additional sentence was prejudicial
because it might adversely impact his opportunity for parole. This
court observed that, based on its prior decisions, it would normally
hold that, while the sentence for grand larceny was unnecessary and
superfluous, the two sentences must run concurrently and would
therefore not be prejudicial. Noting that the question presented was
one of first impression, this court relied on three decisions from the
state of Indiana in agreeing with the defendant that the second
conviction would be prejudicial to his chances for parole. Schlenger,
13 Ill. 2d at 66-67.
Prior to Schlenger, this court had consistently held that a
defendant was not prejudiced by multiple convictions and concurrent
sentences for offenses committed during the same transaction. King,
66 Ill. 2d at 560. This court noted in King that the result in Schlenger
was “predicated solely” on the defendant’s argument in that case that
multiple convictions arising from a single act might adversely affect
his chances for parole. King, 66 Ill. 2d at 564. The State points out
that the General Assembly abolished parole for all felons sentenced
after February 1, 1978, and replaced it with mandatory supervised
release, the length of which is determined according to the class of
the offense or by the specific offense itself. 730 ILCS 5/5–8–1(d)
(West 2002). With the exception of those prisoners serving a term of
natural life imprisonment, prisoners now must serve the full term of
their sentences, less time credit for good behavior. 730 ILCS
5/3–3–3(c) (West 2002). Thus, according to the State, since the
rationale for the doctrine no longer exists, it has outlived its
usefulness and should be “jettisoned.”
The State also argues that (1) the doctrine is not constitutionally
mandated; (2) it interferes with the trial court’s sentencing discretion;
(3) applicable statutes authorize multiple concurrent convictions and
sentences arising out of the same conduct when that conduct
establishes more than one offense; (4) the doctrine produces
confusing results and is not amenable to consistent application; and
(5) it consumes resources that are better spent elsewhere in the
criminal justice system.
Defendant, on the other hand, argues that the doctrine is sound
and that the State has failed to show it should be abandoned under the
principles of stare decisis. He further argues that the doctrine is
rooted in principles of double jeopardy, is reasonable and workable
in practice, and protects the substantial rights of defendants.
Initially, we address defendant’s argument that the State has
forfeited its contention that the one-act, one-crime doctrine should be
abandoned by conceding in the appellate court that one of defendant’s
convictions for aggravated criminal sexual assault must be vacated
under one-act, one-crime principles. In the alternative, defendant
argues that the State should be estopped from urging the
abandonment of the King rule because of its tacit agreement in the
appellate court that King is still good law.
The State argues that, as the appellee in the appellate court, it may
make any argument supported by the record to sustain the trial court’s
judgment. Since the trial court imposed sentence on each of
defendant’s convictions for aggravated criminal sexual assault,
according to the State, its argument in favor of abrogating the King
doctrine supports that judgment.
We reject defendant’s forfeiture and estoppel arguments. It is well
settled that where the appellate court reverses the judgment of the
trial court, and the appellee in that court brings the case to this court
as appellant, that party may raise any issues properly presented by the
record to sustain the judgment of the trial court, even if the issues
were not raised before the appellate court. Gallagher v. Lenart, 226
Ill. 2d 208, 232 (2007). In addition, we note that the one-act, onecrime doctrine was established by this court in King. The appellate
court lacks authority to overrule decisions of this court, which are
binding on all lower courts. See Rickey v. Chicago Transit Authority,
98 Ill. 2d 546, 551-52 (1983). Thus, presentation of an argument by
the State in the appellate court urging the abandonment of the one-act,
one-crime doctrine would have been futile. Under these
circumstances, we decline to find that the State is barred by forfeiture
or estoppel from arguing that this court should abandon the King
Turning to the merits, we agree with the State that the King
doctrine is not constitutionally mandated. Its genesis in Schlenger, as
this court acknowledged in King, was to prevent prisoners from being
prejudiced in their parole opportunities by multiple convictions and
sentences carved from a single physical act. Citing Blockburger v.
United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932),
King noted that multiple convictions and consecutive sentences have
been permitted against claims of double jeopardy where offenses are
based on a single act but require proof of different facts. King, 66 Ill.
2d at 565. Further, this court has noted that the one-act, one-crime
rule has never been viewed as a rule of constitutional dimension.
People v. Henry, 204 Ill. 2d 267, 290 (2003).
This court reaffirmed and clarified the King rule in People v.
Rodriguez, 169 Ill. 2d 183 (1996). The court there noted that, under
King, a court first must determine whether a defendant’s conduct
consists of one act or several acts. Multiple convictions are improper
if they are based on precisely the same physical act. If the defendant’s
conduct is based on more than one physical act, a court must then
determine whether any of the offenses are lesser-included offenses.
If they are, then multiple convictions are improper. Notably, in
Rodriguez, the State argued that this court should abandon the King
doctrine. The court summarily declined the State’s suggestion.
Rodriguez, 169 Ill. 2d at 186. Rodriguez also extended the King
doctrine to consecutive sentences, noting that, although King spoke
in terms of multiple convictions and concurrent sentences, the
legislature had amended section 5–8–4(a) of the Unified Code of
Corrections (Corrections Code) (730 ILCS 5/5–8–4(a) (West 2002))
to mandate consecutive sentences in certain cases. Thus, the court
stated that the King doctrine applied to those cases as well.
Rodriguez, 169 Ill. 2d at 187.
Although the genesis of the one-act, one-crime doctrine arose
from concerns about adverse effects on parole opportunities, the fact
that parole has been abolished does not inevitably lead to the
conclusion that the doctrine should be abandoned. In the two decades
since King was decided, this court has had occasion to address the
impact of a one-act, one-crime violation on a defendant, quite apart
from any effect on parole. In so doing, this court has found a one-act,
one-crime violation to qualify for review under the second prong of
the plain-error rule. Under that portion of the rule, a court may
disregard forfeiture where a clear or obvious error occurs and that
error is so serious that it affected the fairness of the defendant’s trial
and challenged the integrity of the judicial process. See People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007). The second prong of the
plain-error rule is “invoked only in those exceptional circumstances
where, despite the absence of objection, application of the rule is
necessary to preserve the integrity and reputation of the judicial
process.” People v. Harvey, 211 Ill. 2d 368, 387 (2004).
In People v. Davis, 156 Ill. 2d 149 (1993), the defendant was
convicted of unlawful possession of cannabis and unlawful
possession with intent to deliver cannabis. The trial court imposed a
single sentence. No appeal was taken and the defendant did not raise
any issue of an improper conviction in his postconviction petition.
The trial court denied his petition following an evidentiary hearing.
The appellate court found the conviction for unlawful possession of
cannabis to be a lesser-included offense of unlawful possession with
intent to deliver and determined that the conviction for the lesser
offense was void. The court remanded to the trial court with
instructions to vacate the judgment for the lesser-included offense.
This court held that the improper conviction was voidable and that the
defendant had not preserved a claim of error as to that conviction.
The court further noted that the plain-error rule may not be invoked
to save procedurally defaulted claims in postconviction proceedings.
However, regardless of the defendant’s forfeiture, this court exercised
its supervisory authority, stating:
“Despite our conclusion that defendant has waived the
improper-conviction issue, in the exercise of our supervisory
authority, we vacate defendant’s conviction on the lesser
offense of possession. We do so out of an awareness that the
effects of the improper conviction are not confined to this trial
and sentence. Defendant may be subject to future prejudice as
a result of the improper convictions. In the unfortunate event
of a future encounter with the criminal justice system, the
improper conviction could likely affect decisions with respect
to the setting of bond and sentencing, as well as parole
opportunities. This is so regardless of whether an improper
sentence has also been imposed. Significantly, the improper
conviction appears on defendant’s presentence investigation
report as well as on the court’s record sheet.
Because of the prejudicial effect on defendant, we vacate
the erroneous conviction and sentence of unlawful possession
of cannabis. Further, as we are unable to discern what portion
of defendant’s sentence impermissibly pertains to the lesser
offense, we remand this cause to the trial court for
resentencing.” Davis, 156 Ill. 2d at 160.
Though Davis involved convictions for a greater- and a lesserincluded offense, the same rationale has been applied where a
defendant was convicted of two non-lesser-included offenses that
were based upon a single physical act. For example, in Harvey,
defendant Barefield was charged with four counts of unlawful
possession of four stolen motor vehicles and one count of aggravated
possession of the same four stolen vehicles. Barefield was convicted
of all five counts and received concurrent sentences on each
conviction. On appeal, Barefield argued, inter alia, that his four
convictions for simple possession of the motor vehicles should be
vacated because those offenses were based on the same physical act
that formed the basis for the aggravated possession conviction. The
appellate court found that Barefield had forfeited the issue and that,
in any event, there was no one-act, one-crime violation, noting that
the two statutes at issue specifically stated that a conviction under
either statute would not be deemed to constitute a lesser-included
offense of the other. Harvey, 211 Ill. 2d at 377.
In addressing Barefield’s one-act, one-crime argument, this court
agreed with the appellate court that Barefield had forfeited the issue
because he had raised it for the first time on appeal. Nonetheless, the
court observed that plain errors affecting substantial rights may be
reviewed on appeal, despite forfeiture. The court further noted that
“an alleged one-act, one-crime violation and the potential for a
surplus conviction and sentence affects the integrity of the judicial
process, thus satisfying the second prong of the plain error rule.”
Harvey, 211 Ill. 2d at 389.
This court has also applied the King doctrine in a juvenile case.
In In re W.C., 167 Ill. 2d 307 (1995), the minor was adjudicated
delinquent on two counts of first degree murder of one victim, based
on accountability; the trial court committed him to the juvenile
division of the Department of Corrections for an indeterminate
period. The trial court merged the two counts into one finding of
delinquency and imposed only one sentence. One of the minor’s
arguments when his appeal reached this court was that it was
fundamentally unjust to allow the record to reflect that he was
accountable for two murders. This court reached the issue despite the
minor’s forfeiture of his argument. The court noted that, although
only one finding of delinquency was made and one sentence imposed,
the dispositional order incorrectly reflected two offenses of first
degree murder. This court agreed with the State that any possible
prejudice to the minor in the event of any future juvenile or criminal
proceeding could be averted by resort to the record, which showed
that only one murder was committed. However, “in the interests of
justice and judicial economy” and to “avoid the possibility of future
confusion or adverse effect to respondent,” this court modified the
dispositional order to reflect that the minor’s commitment was based
on a single offense of first degree murder. In re W.C., 167 Ill. 2d at
In light of this court’s treatment of one-act, one-crime violations
as adversely affecting the integrity of the judicial process under the
second prong of the plain-error rule, we decline to abandon the King
doctrine. Accordingly, we find it unnecessary to address the State’s
other arguments for the rule’s abrogation.
III. Prosecutorial Discretion
The State argues that if this court determines not to abandon the
one-act, one-crime doctrine, the State should be permitted to exercise
prosecutorial discretion to elect which of defendant’s aggravated
criminal sexual assault convictions should survive. The State notes
that the appellate court has, in some cases, allowed the State the
discretion to choose the surviving conviction where the multiple
offenses have the same legislative classification. The State urges this
court to adopt this rule, describing it as a corollary of (1) prosecutorial
discretion to nol-pros a charge and (2) the discretion granted the State
to frame the number of charges for one-act, one-crime purposes. The
State wishes to retain defendant’s conviction for aggravated criminal
sexual assault based on residential burglary and have his sexual
assault conviction based upon home invasion vacated, along with the
lesser-included offense of residential burglary.
Defendant, on the other hand, argues that the State’s request to
exercise its prosecutorial discretion to vacate the more serious offense
is contrary to established law. Rather, he argues, the State’s discretion
should be limited to those situations in which it is not possible to
determine which offense is the most serious. Defendant argues that
the appellate court correctly looked to the aggravating factors of home
invasion and residential burglary for the purpose of determining
which of the aggravated criminal sexual assault offenses is the most
A nolle prosequi is the formal entry of record of a prosecuting
attorney of his or her unwillingness to prosecute a case. People v.
Norris, 214 Ill. 2d 92, 104 (2005). The appellate court has held that
the power of the prosecutor to nol-pros a charge extends throughout
the trial proceedings up until sentence is imposed. See People v.
Williams, 315 Ill. App. 3d 22, 30 (2000); People v. Olson, 128 Ill.
App. 3d 560, 562 (1984); People v. Baes, 94 Ill. App. 3d 741, 746
(1981). As stated previously, some appellate cases have allowed the
State to use its prosecutorial discretion even on appeal to choose the
surviving conviction in one-act, one-crime situations. The State notes
that the term “prosecution” is defined in the Criminal Code as “all
legal proceedings by which a person’s liability for an offense is
determined, commencing with the return of the indictment or the
issuance of the information, and including the final disposition of the
case upon appeal.” 720 ILCS 5/2–16 (West 2002).
This court has “always held” that under the one-act, one-crime
doctrine, sentence should be imposed on the more serious offense and
the less serious offense should be vacated. People v. Lee, 213 Ill. 2d
218, 226-27 (2004). Accordingly, we first address the question of
whether the seriousness of the offense of aggravated criminal sexual
assault is properly determined by the aggravating factor for the
offense. The State argues that when a defendant is convicted of
multiple counts of aggravated criminal sexual assault, it has the
prosecutorial discretion to choose which conviction survives because
the crimes are all Class X felonies and therefore of equal severity.
In determining which offense is the more serious, a reviewing
court compares the relative punishments prescribed by the legislature
for each offense. See People v. Duszkewycz, 27 Ill. 2d 257, 261
(1963) (comparing the respective range of penalties for rape and
incest and determining that rape, which carried the longer possible
sentence, was the more serious offense). In doing so, a court relies on
the plain language of the statutes to determine which offense is more
serious; common sense dictates that the General Assembly would
mandate greater punishment for offenses it deems more serious. Lee,
213 Ill. 2d at 228. Where the offenses provide for identical
punishments, this court has remanded to the trial court to determine
which convictions should be retained. People v. Garcia, 179 Ill. 2d
55, 71 (1997). However, in situations where the degree of the
offenses and their sentencing classifications are identical, this court
has also considered which of the convictions has the more culpable
mental state. In People v. Mack, 105 Ill. 2d 103 (1984), vacated on
other grounds, 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266
(1987), the defendant was convicted of first degree murder for the
killing of one person, based on (1) intentionally and knowingly
shooting the victim, (2) shooting the victim knowing that the shooting
created a strong probability of death or great bodily harm, and (3)
shooting the victim while committing the forcible felony of armed
robbery. Noting that the maximum punishment for all three offenses
was death, this court looked to the mental states involved and
determined that the intentional and knowing conviction was the more
serious because it required a more culpable mental state than the
others. Mack, 105 Ill. 2d at 137.
The appellate court in the instant case used the aggravating factors
of residential burglary and home invasion to determine which of
defendant’s aggravated criminal sexual assault convictions would
survive, concluding that the aggravating factor of home invasion
involved a more culpable mental state than residential burglary. 377
Ill. App. 3d at 220-21. This court has not used aggravating factors to
determine which of multiple aggravated criminal sexual assault
convictions based upon a single physical act is the most serious. For
example, the offenses in Garcia were based upon multiple counts of
aggravated criminal sexual assault, some premised on personal
culpability of the defendants and others based on accountability for
the actions of others. The charges were variously based on several
distinct aggravating factors, including (1) using a dangerous weapon,
(2) causing the victim bodily harm, (3) threatening the victim’s life,
(4) endangering the victim’s life, and (5) committing the sexual
assault in the course of committing another felony (armed robbery).
Noting that there was no way to determine the most serious
conviction because none of the convictions involved a more or less
culpable mental state, this court remanded to the trial court to
determine which of the convictions should be retained. Garcia, 179
Ill. 2d at 71-72.
We conclude that we should continue to adhere to Garcia and
hold that where there are multiple convictions for aggravated criminal
sexual assault based upon the same physical act, none of the offenses
are more serious than any other. As the Garcia court stated, it is not
possible to tell which is the more serious offense because none of the
offenses involve a more culpable or less culpable state. In that event,
rather than remanding to the trial court to determine which conviction
must be vacated, the State would like to make that decision.
In the appellate court, the State relied on four appellate court
cases to support its argument that it should be allowed to use its
prosecutorial discretion in cases where multiple offenses have the
same legislative classification. In People v. Schultz, 73 Ill. App. 3d
379 (1979), the defendant was convicted of multiple offenses against
three persons. The State conceded on appeal that some of the offenses
should be vacated under the one-act, one-crime doctrine. The
appellate court, without elaboration, allowed the State to pursue
certain offenses and cease prosecution on other offenses. There is no
indication in the appellate court’s decision that the defendant raised
any objection to this procedure. Schultz, 73 Ill. App. 3d at 382.
In People v. Rayford, 104 Ill. App. 3d 124, 126 (1982), the
appellate court, without discussion, allowed the State to choose which
of two Class X felonies it would pursue on appeal.
People v. Eubanks, 279 Ill. App. 3d 949, 963 (1996), relied on a
decision of this court, People v. Holman, 103 Ill. 2d 133 (1984), in
allowing the State to choose which of three convictions for
aggravated criminal sexual assault should be retained. People v.
McColler, 363 Ill. App. 3d 81 (2005), relied on Eubanks in allowing
the State to elect which of the defendant’s convictions for attempt
(aggravated criminal sexual assault) should be retained. The State
elected to retain the conviction that was based on displaying a knife,
rather than the conviction based on home invasion. The appellate
court noted the general rule that sentence should be imposed on the
most serious offense and it agreed that the conviction chosen by the
State to be retained was the most serious. The court distinguished this
court’s decision in Garcia, which remanded to the trial court to
decide which of the defendant’s three aggravated criminal sexual
assault convictions should be retained, noting that, in Garcia, there
was no way to determine which offense was the more serious. In
contrast, the appellate court noted that this court in Rodriguez, 169 Ill.
2d at 190, determined that aggravated criminal sexual assault based
on display of a dangerous weapon was a more serious offense than
the same offense based on home invasion. Accordingly, the McColler
court found it unnecessary to remand to the trial court. McColler, 363
Ill. App. 3d at 91-92.
The McColler court’s reading of Rodriguez was mistaken. In
Rodriguez, the defendant was charged with eight counts of aggravated
criminal sexual assault, one count of home invasion, and two counts
of intimidation. Some of the sexual assault counts were based on the
defendant’s displaying or threatening to use a dangerous weapon and
others were based on the defendant’s committing the offense during
a home invasion. The jury returned three general verdicts of guilty,
one for each offense. The appellate court affirmed the defendant’s
convictions for aggravated criminal sexual assault and intimidation,
but vacated the home invasion conviction as a lesser-included offense
of aggravated criminal sexual assault. Rodriguez, 169 Ill. 2d at 185.
On appeal to this court, the State argued that the appellate court
misapplied the King doctrine. This court determined that the two
offenses were based on separate acts, although a common
act–threatening the victim with a gun–was a part of both offenses. In
addition, the court noted that the appellate court had erroneously
assumed that, since the defendant was convicted of home invasion,
the jury’s general verdict on the sexual assault offense applied only
to the counts based on home invasion. This court found that
assumption to be erroneous because a general verdict of guilty is
presumed to be based on any good count of the indictment to which
the proof is applicable. Based on these principles, this court observed
that the defendant was equally guilty of each count of aggravated
criminal sexual assault. Further, the court stated its assumption that
the defendant was convicted of aggravated criminal sexual assault
based on the more serious offense of displaying or threatening to use
a dangerous weapon. Home invasion is not a lesser-included offense
of that offense. Thus, the defendant was properly convicted of both
offenses. Rodriguez, 169 Ill. 2d at 190-91.
It is apparent from a reading of Rodriguez that it was not this
court’s intent to state or imply that the severity of convictions for
aggravated criminal sexual assault for one-act, one-crime purposes
may be determined by looking at their aggravating factors. The
reference to the aggravating factors was made in the context of
addressing the appellate court’s belief that the defendant must have
been convicted only of aggravated criminal sexual assault based on
home invasion. Further, we note that this court’s decision in Garcia
was filed more than a year after Rodriguez was decided.
The State also relies on Holman, where the defendant was
convicted of four counts of intentional murder and three counts of
felony murder, all involving one victim. On appeal to this court, the
parties agreed that three of the four convictions for intentional murder
must be vacated, as well as two of the felony murder convictions
based on burglary. The defendant argued that the remaining felony
murder conviction based on armed robbery should be vacated and the
remaining intentional murder conviction retained. The State
disagreed, arguing that the felony murder conviction should stand
because the aggravating factor on which the State relied in seeking
the death penalty was that the murder took place in the course of an
armed robbery. This court acknowledged that the cause would have
to be remanded for a new sentencing hearing and that because any of
the murder convictions might support a death sentence under the facts
of the case, the State had the right to elect which of the convictions
should be retained. Holman, 103 Ill. 2d at 158-59.
The appellate court in the instant case distinguished the above
cases, noting that Holman involved a remand for a new sentencing
hearing and this court wanted the State to have the ability to elect
which convictions should be retained. The court also noted that there
was no discussion in Eubanks as to whether the vacated conviction
involved the more serious charge and the McColler court concluded
that it was in fact vacating the conviction on the less serious offense.
Instead, the appellate court noted, in the instant case, the State wanted
to vacate the more serious conviction. The court concluded that under
the relevant case law, the State lacked discretion to do so. 377 Ill.
App. 3d at 221. Instead, the court relied in part on People v. Daniels,
331 Ill. App. 3d 380, 386 (2002), where the court vacated a
conviction for aggravated criminal sexual assault based on display of
a dangerous weapon as requiring a less culpable mental state than the
same offense based on bodily harm to the victim. At the time Daniels
was decided, the penalties for both offenses were the same.
The State argues that the appellate court erred in distinguishing
this court’s decision in Holman. However, Holman does not support
the State’s position. All four of the defendant’s murder convictions
in that case were equally serious in that they each would support a
sentence of death. Because of this court’s disposition of other issues
in the case, it was necessary to remand to the trial court for a new
sentencing hearing. Thus, this court determined that the State should
have the right on remand to elect which of the murder convictions
should be retained. Holman, 103 Ill. 2d at 159.
Holman does not stand for the proposition that the State should
be allowed to exercise its prosecutorial discretion whenever a one-act,
one-crime violation occurs and it cannot be determined which of the
offenses is the more serious. Rather, the Holman court’s decision to
allow the State to decide on remand which conviction should be
retained is consistent with the notion that the power of the prosecutor
to nol-pros a charge extends throughout the trial proceedings up until
the time sentence is imposed. The new sentencing hearing would be
part of those proceedings.
The State argues that it would be unfair to it to allow defendant
to “circumvent the People’s discretion not to proceed on counts in the
trial court because there, defendant did not object to judgment being
entered on those crimes.” However, defendant did not circumvent the
State’s discretion; rather, the State chose not to exercise its discretion
in the trial court. The record of defendant’s guilty plea proceeding
shows that the prosecutor acknowledged that both counts of
aggravated criminal sexual assault were based on a single physical act
and that sentence should be imposed on only one count. In fact, prior
to allowing his client to plead guilty, defendant’s trial counsel sought
and received the prosecutor’s concession that, although defendant
would plead guilty to both counts, sentence should be imposed on
only one of the sexual assault convictions. Instead, at the sentencing
hearing, the prosecutor requested that concurrent sentences be
imposed on both counts. The fact that defense counsel failed to bring
the matter to the trial court’s attention at the sentencing hearing did
not prevent the State from using its power of nolle prosequi in the
We conclude that the better course is to continue to adhere to the
principle that when it cannot be determined which of two or more
convictions based on a single physical act is the more serious offense,
the cause will be remanded to the trial court for that determination.
IV. Supervisory Authority
In the alternative, the State requests that this court use its
supervisory authority to reinstate defendant’s conviction for
aggravated criminal sexual assault based on residential burglary and
remand for resentencing on both sexual assault convictions because
the two sexual assaults were based upon different acts. The State
admits that it forfeited this argument because it conceded in the
appellate court and in its petition for leave to appeal to this court that
one of defendant’s convictions for aggravated criminal sexual assault
should be vacated under one-act, one-crime principles. The State
argues, however, that this court’s supervisory authority may override
its procedural default.
The State has indeed forfeited this argument. In the appellate
court, the State conceded that, under the one-act, one-crime doctrine,
one of defendant’s sexual assault convictions must be vacated.
Further, in its petition for leave to appeal to this court, the State did
not argue that the convictions were based upon different acts. Its
arguments were that the appellate court erred in not allowing the State
to exercise its prosecutorial discretion to choose the surviving sexual
assault conviction and that this court should abandon the one-act,
one-crime rule. We note that the rules of forfeiture in criminal
proceedings are applicable to the State as well as to the defendant.
People v. Williams, 193 Ill. 2d 306, 347 (2000).
In support of its argument for the exercise of this court’s
supervisory authority, the State cites People v. Normand, 215 Ill. 2d
539 (2005). However, the State’s reliance on that case is misplaced.
Normand involved a prosecution for possession of child pornography.
The statutory definition of “child” included depictions of a person
who appeared to be under the age of 18. While the defendant’s appeal
was pending in the appellate court, this court filed its decision in
People v. Alexander, 204 Ill. 2d 472 (2003), in which we held
unconstitutional the “appears to be” language in the definition of
“child” in the statute. The defendant in Normand argued before this
court that the trial court had erroneously relied on that statutory
definition and that the State had failed to prove that the children
depicted in the photographs were real. The State argued that the
defendant had forfeited this argument by not raising the issue in the
trial court. This court declined to find forfeiture because the
Alexander decision was not filed until well after the defendant’s trial
had concluded. Normand, 215 Ill. 2d at 543-44.
Here, the State had the opportunity to argue to the appellate court
that there was no one-act, one-crime violation and that defendant was
properly convicted of both sexual assault offenses. Instead, the State
chose to concede that one of defendant’s convictions must be vacated
under one-act, one-crime principles. Further, the State failed to raise
the issue in its petition for leave to appeal. We find no basis for
ignoring the State’s forfeiture or for exercising our supervisory
authority under these circumstances.
We decline the State’s request to abandon the one-act, one-crime
doctrine. We hold that the appellate court erred in finding defendant’s
aggravated criminal sexual assault conviction based on home
invasion to be the more serious offense and in vacating the sexual
assault conviction based on residential burglary. We remand this
cause to the trial court for a determination as to which sexual assault
conviction will be retained and for resentencing in accordance with
section 5–8–4 of the Corrections Code (730 ILCS 5/5–8–4 (West
2002)). We affirm the remainder of the appellate court’s judgment.
Appellate court judgment affirmed in part
and reversed in part; cause remanded.