People v. Arrington

June 16, 1998
No. 2--96--1317
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
) No. 96--CF--306
v. )
)
EDWARD J. ARRINGTON, ) Honorable
) Frederick J. Kapala,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE RATHJE delivered the opinion of the court:
Defendant, Edward Arrington, was convicted of attempted robbery
(720 ILCS 5/8--4(a), 18--1(a) (West 1996)) and aggravated battery
(720 ILCS 5/12--4(b)(1) (West 1996)) and was sentenced to two
consecutive nine-year prison terms. Defendant appeals, arguing that
(1) we must grant him a new trial because the trial court failed to
appoint a special prosecutor; and (2) the trial court erred in
imposing consecutive sentences.
While armed with a nonfunctioning replica of a pistol,
defendant entered Logli's Supermarket, handed a bag to Lori
Livingston, who was at the service desk counter, and told her that
he wanted to make a withdrawal. Livingston left the counter and
alerted the manager. Defendant turned to leave, and the manager
ordered him to stop. Defendant continued, and the manager attempted
to block defendant's path. Defendant pulled out the replica pistol
and hit the manager over the head, causing a minor injury. The
manager and other employees eventually subdued defendant.
The trial court denied defendant's posttrial motion and, after
reviewing defendant's presentence report, concluded that defendant's
past convictions rendered him eligible for extended-term sentences
(see 730 ILCS 5/5--5--3.2(b)(1) (West 1996)). The trial court also
found that, for purposes of section 5--8--4(a) of the Unified Code
of Corrections (Unified Code) (730 ILCS 5/5--8--4(a) (West 1996)),
defendant's crimes were not committed as part of a single course of
conduct during which there was no substantial change in the nature
of the criminal objective. The trial court then turned to section
5--8--4(b) of the Unified Code (730 ILCS 5/5--8--4(b) (West 1996))
and concluded that defendant's "persistent and resolute pattern of
criminal behavior" required the imposition of consecutive sentences
in order to protect the public from defendant's further criminal
conduct. The trial court denied defendant's motion to reconsider
his sentence, and defendant filed a timely notice of appeal.
Defendant first contends that he must receive a new trial
because the trial court failed to appoint a special prosecutor to
resolve the conflict of interest that arose as a result of the
State's Attorney's personal interest in the store where the crimes
occurred. Section 3--9008 of the Counties Code (55 ILCS 5/3--9008
(1996)), which governs the appointment of a special prosecutor,
provides, in relevant part: "Whenever the State's attorney *** is
interested in any cause or proceeding, civil or criminal, which it
is or may be his duty to prosecute or defend, the court in which
said cause or proceeding is pending may appoint some competent
attorney to prosecute or defend such cause or proceeding ***." 55
ILCS 5/3--9008 (1996). The provision's purpose is "to prevent any
influence upon the discharge of the duties of the State's Attorney
by reason of personal interest." People v. Morley, 287 Ill. App.
3d 499, 503-04 (1997). The decision to appoint a special prosecutor
lies within the trial court's discretion. Morley, 287 Ill. App. 3d
at 504. The test for deciding whether to appoint a special
prosecutor varies depending upon whether the nature of the alleged
interest is personal or professional. Morley, 287 Ill. App. 3d at
504.
Here, defendant alleges that the Winnebago County State's
Attorney, Paul Logli, was interested in this action because Logli's
cousins own the store that defendant attempted to rob. Defendant
further contends that Logli's interest lay in the fear that an
acquittal would allow defendant to sue the store and perhaps recover
damages for the injuries he suffered during the scuffle. This
interest thus involves Logli's personal relationship with his
cousins.
When the alleged interest is personal, a defendant must show
either (1) that the relationship involves significant emotional
ties; or (2) that defendant suffered "actual and substantial
prejudice." People v. Polonowski, 258 Ill. App. 3d 497, 502 (1994);
see also Baxter v. Peterlin, 156 Ill. App. 3d 564, 566 (1987) (party
seeking appointment of special prosecutor bears the burden of
proving that the State's Attorney is interested in a proceeding).
Defendant argues, however, that he does not bear the burden of
demonstrating the State's Attorney's interest, but rather that the
State bears the burden of proving that a special prosecutor is not
needed. We disagree. The case defendant relies upon, People v.
Courtney, 288 Ill. App. 3d 1025 (1997), involved an attorney who had
previously represented a defendant charged with sexual assault.
Subsequently, the attorney withdrew from representing the defendant
and was appointed State's Attorney. The attorney served as State's
Attorney while his office continued to prosecute the defendant for
sexual assault. On appeal, the court held that the trial court
should have appointed a special prosecutor. Courtney, 288 Ill. App.
3d at 1034. In reaching this conclusion, the court explained that
a per se conflict of interest arose when the defendant's former
attorney was appointed State's Attorney. Courtney, 288 Ill. App.
3d at 1032. In light of this per se conflict of interest, the court
held that the State bore the burden of proving that a special
prosecutor should not be appointed. Courtney, 288 Ill. App. 3d at
1034.
We believe that such a standard is proper when a court faces
a per se conflict of interest. That, however, is not the situation
here. Here, defendant has alleged only that Logli's cousins own the
store that defendant attempted to rob. This clearly does not rise
to the level of a per se conflict of interest. Moreover, defendant
has presented no evidence that would support a conclusion that
Logli's relationship with the store involves such significant
emotional ties that his personal interests influenced the discharge
of his duties. Also, defendant has presented no evidence that the
alleged interest has caused him actual and substantial prejudice.
Indeed, the only evidence that defendant has produced is that the
State's Attorney and the store share the same name and that
defendant believes that the State's Attorney's cousins own the
store. After reviewing the record, we must conclude that the trial
court did not abuse its discretion in concluding that a special
prosecutor was not needed.
We turn now to defendant's contention that the court erred in
imposing consecutive extended-term nine-year sentences. Defendant
raises no challenge to the imposition of the extended-term
sentences. Sections 5--8--4(a) and 5--8--4(b) of the Unified Code
(730 ILCS 5/5--8--4(a), (b) (West 1996)) govern when a trial court
may impose consecutive sentences.
Section 5--8--4(a) provides, in relevant part, that a court
"shall not impose consecutive sentences for offenses which were
committed as part of a single course of conduct during which there
was no substantial change in the nature of the criminal objective."
730 ILCS 5/5--8--4(a) (West 1996). Section 5--8--4(b) allows the
court to impose consecutive sentences for crimes that are not
governed by section 5--8--4(a), if the court finds that consecutive
terms are necessary "to protect the public from further criminal
conduct by the defendant." 730 ILCS 5/5--8--4(b) (West 1996). The
trial court made the findings required by section 5--8--4(b). Thus,
defendant's consecutive sentences are proper unless section 5--8--
4(a) precludes the application of section 5--8--4(b). See People
v. Kagan, 283 Ill. App. 3d 212, 222-23 (1996) (holding that if
section 5--8--4(a) applies the court may not impose consecutive
sentences pursuant to section 5--8--4(b)).
We must therefore determine whether defendant's crimes were
committed as part of a single course of conduct during which there
was no substantial change in the nature of his criminal objective.
In order to decide this, we must determine whether defendant's acts
were independently motivated, or whether they were "part of a course
of conduct guided by an 'overarching criminal objective.' " Kagan,
283 Ill. App. 3d at 220, quoting People v. Fritz, 225 Ill. App. 3d
624, 629 (1992). Consecutive sentences are to be imposed sparingly,
and we will modify such sentences if the record does not support
their imposition. Kagan, 283 Ill. App. 3d at 220.
Here, the jury's verdict clearly shows that defendant's
criminal objective was to rob the store. We believe that inherent
in any plan to rob a store is also an intention for the robber to
escape from the premises with the purloined proceeds. The evidence
shows that defendant battered the manager only after he blocked
defendant's escape route. Defendant's motivation for striking the
manager was not a newly-conceived intention to inflict harm, but an
attempt to complete his original plan, namely the robbery of and
escape from the store.
In finding that the attempted robbery and the aggravated
battery involved a substantial change in defendant's criminal
objective, the trial court relied upon People v. Stokes, 172 Ill.
App. 3d 534 (1988). We find Stokes distinguishable. In Stokes, the
defendant was convicted of armed robbery and attempted murder. The
defendant's armed robbery conviction arose from his robbery of a
grocery store. The attempted murder conviction arose from his act
of shooting at a person several minutes after the armed robbery
occurred and after the defendant had already escaped from the store.
Both the trial and appellate courts concluded that the removal of
the attempted murder from the time and place of the armed robbery
indicated a different criminal motivation. Stokes, 172 Ill. App.
3d at 536-37. Here, that is not the case. The aggravated assault
occurred immediately after and only a few feet from the attempted
robbery. Moreover, defendant committed the aggravated battery
merely to effectuate his original intent to rob the store and escape
from the premises.
In this appeal, the State relies upon People v. Magnus, 262
Ill. App. 3d 362 (1994), which we also find distinguishable. In
Magnus, the defendant's motivation for shooting the first victim
arose from his unreasonable belief that such an action was necessary
to protect his brother. Magnus, 262 Ill. App. 3d at 370. The
defendant's motivation for shooting the second victim, however, was
his desire to execute a rival gang member. Magnus, 262 Ill. App.
3d at 370. Thus, the nature of the defendant's criminal objective
was different with regard to each victim.
After the briefing in this action was complete, we granted the
State's motion to cite supplemental authority. In its motion, the
State asserted that it believed that the supreme court's recent
opinion in People v. Dennis, No. 79042 (Ill. February 20, 1998),
could offer guidance in deciding this matter. After reviewing
Dennis, we believe that it addresses an issue different from the one
raised here. The question raised in Dennis was "whether escape
forms a part of the offense of armed robbery for purposes of
accountability." Dennis, slip op. at 7. In reaching its decision,
the court's emphasis was on determining when the offense of armed
robbery ended. That, however, is not the question we face. Whether
defendant had completed his attempted robbery before he struck the
manager does not control our determination of whether the crimes
involved a substantial change in the nature of defendant's criminal
objective. Even if one crime is completed before a second is
started, both may still be part of a single course of conduct
without a substantial change in the nature of the criminal
objective. See Kagan, 283 Ill. App. 3d at 221 (solicitation of
murder for hire and attempted murder were part of a single course
of conduct). Thus we believe that we need not determine whether
defendant's attempted robbery had yet to be completed when he
committed aggravated battery.
After reviewing all of the attendant facts, we are unable to
agree with the trial court's conclusion that the attempted robbery
and the battery were separately motivated crimes. Instead, we
believe that the record supports only the conclusion that the
attempted robbery and the battery were part of the same course of
conduct and that no substantial change in the nature of the criminal
objective occurred. Thus, the trial court erred in imposing
consecutive sentences. Pursuant to the authority granted by Supreme
Court Rule 615(b) (134 Ill. 2d 615(b)), we affirm the judgment and
modify defendant's sentences to run concurrently rather than
consecutively.
The judgment of the circuit court of Winnebago County is
affirmed as modified.
Affirmed as modified.
BOWMAN and THOMAS, JJ., concur.