People v. Garcia
Annotate this Case
People v. Garcia, Wallace and O'Neal, Nos. 81246, 81248,
81274 cons.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior to
issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in
the Official Reports advance sheets following final action by the
Court.
Docket Nos. 81246, 81248, 81274 cons.--Agenda 9--May
1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
VICTOR GARCIA, Appellant.--THE PEOPLE OF THE
STATE OF ILLINOIS, Appellee, v. ROGER WALLACE,
Appellant.--THE PEOPLE OF THE STATE OF ILLINOIS,
Appellee, v. AARON O'NEAL, Appellant.
Opinion filed October 23, 1997.
JUSTICE MILLER delivered the opinion of the court:
Victor Garcia, Roger Wallace, and Aaron O'Neal,
defendants in these consolidated cases, were convicted of
numerous crimes in the circuit court of Cook County for the
gang rape of an 18-year-old female victim. In sentencing
defendants, the trial judge failed to enter consecutive sentences
on several convictions as required under section 5--8--4(a) of the
Unified Code of Corrections (730 ILCS 5/5--8--4(a) (West
1992)). The relevant portion of section 5--8--4(a) provides:
"The 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, unless,
one of the offenses for which defendant was convicted
was a Class X or Class 1 felony and the defendant
inflicted severe bodily injury, or where the defendant
was convicted of a violation of Section 12--13 or 12--14
[aggravated criminal sexual assault] of the Criminal
Code of 1961, in which event the court shall enter
sentences to run consecutively." 730 ILCS 5/5--8--4(a)
(West 1992).
The appellate court found that the trial judge's imposition
of several concurrent sentences in violation of section 5--8--4(a)
rendered those sentences void. 281 Ill. App. 3d 602, 613. The
court vacated all of defendants' sentences and remanded to the
trial court for resentencing. 281 Ill. App. 3d at 615, 617.
Defendants, Victor Garcia (cause No. 81246), Roger
Wallace (cause No. 81248), and Aaron O'Neal (cause No.
81274), each filed a petition for leave to appeal. 155 Ill. 2d R.
315(a); 134 Ill. 2d R. 612(b). We allowed defendants' petitions
and consolidated them for purposes of this appeal.
BACKGROUND
The victim (S.B.) had been dating Victor Garcia for about
one week. On the afternoon of June 2, 1992, S.B. and her friend
Jessica met Garcia, Roger Wallace, Aaron O'Neal, and Richard
Walters (a codefendant not a party to this appeal) at a park.
Without S.B.'s knowledge, the four males had decided to initiate
S.B. as a "Deucette"--a member of the female branch of the
Insane Deuces street gang. A Deucette's initiation consists of
engaging in sex with a number of male gang members.
After meeting at the park, S.B. agreed to go with Garcia,
Wallace, O'Neal, and Walters to Walters' apartment in order to
drink some alcoholic beverages. Jessica could not attend and left
to pick up her sister. Once at the apartment, the group played a
drinking game in which S.B. consumed approximately five to
eight shots of alcohol in a short amount of time.
Following the drinking game, Garcia led S.B. to the
bedroom of the apartment and asked S.B. to engage in
consensual sex. S.B. refused. Despite S.B.'s refusal, Garcia
removed S.B.'s clothing and penetrated S.B.'s vagina with his
penis. When S.B. screamed for Garcia to stop, Garcia hit her
several times and told her to shut up. Garcia then left the
bedroom.
O'Neal and Walters entered the bedroom. O'Neal penetrated
S.B.'s vagina with his penis. When S.B. screamed, O'Neal hit
her. Walters penetrated S.B.'s mouth with his penis. Then,
following O'Neal's instruction that Walters have intercourse
with S.B., Walters either penetrated or touched S.B.'s vagina
with his penis. Throughout this episode, S.B. was crying and
screaming for them to stop. When O'Neal and Walters exited
the bedroom, Walters was carrying a handgun.
Next, Wallace entered the bedroom. Wallace either
penetrated or touched S.B.'s vagina with his penis. S.B.
continued to cry and scream. In order to quiet S.B., Wallace hit
her. Wallace then exited the bedroom.
Later, S.B. and the mattress from the bedroom were brought
into the living room of the apartment. Pursuant to an instruction
from O'Neal, Wallace penetrated or touched S.B.'s vagina with
his penis. In order to quiet S.B.'s screams, Garcia held a gun to
her head and threatened to kill her if she did not shut up.
Wallace then penetrated S.B.'s mouth with his penis.
Garcia, O'Neal, and Wallace discussed whether S.B. should
be killed. Following this discussion, but prior to any attempt on
S.B.'s life, Walters left the apartment. Garcia and Wallace then
choked S.B. with a plastic belt. S.B. went unconscious and
urinated. However, the belt broke during the strangulation and
S.B. survived.
The next morning, Garcia, O'Neal, and Wallace instructed
S.B. not to tell her parents or the police what had happened.
Defendants fabricated a story so that S.B. could explain her
injuries without implicating defendants. Defendants quizzed S.B.
regarding the story. Garcia and Wallace walked S.B. to a bus
stop so that she could get home. Before the bus arrived, Garcia
and Wallace left. After arriving at home, S.B. told her friend
Jessica, her mother, the police, and emergency room medical
personnel what had happened and not the story fabricated by
defendants.
Later, Garcia, Wallace, O'Neal, and Walters were arrested
and charged by indictment. Garcia, Wallace, and O'Neal were
tried simultaneously in severed trials. Garcia and O'Neal were
tried before separate juries. Wallace was tried in a bench trial.
Richard Walters agreed to be a witness for the State in exchange
for his plea of guilty and a 10-year prison sentence. Richard
Walters is not a party to this appeal.
Cause No. 81246
Victor Garcia was 16 years old at the time of the crimes.
Garcia was charged as an adult in a 56-count indictment. Prior
to trial, the State nol-prossed 47 counts of the indictment. The
State initially proceeded against Garcia on three counts of
aggravated criminal sexual assault based on Garcia's penetration
of S.B.'s vagina (counts 1, 9, 17). The counts were premised on
three distinct aggravating factors: using a dangerous weapon;
causing the victim bodily harm; and threatening the victim's
life. 720 ILCS 5/12--14(a)(1), (a)(2), (a)(3) (West 1992).
The State also proceeded against Garcia on three counts of
aggravated criminal sexual assault under a theory of
accountability based on Wallace's penetration of S.B.'s vagina
(counts 3, 11, 21). These counts were premised on the same
three aggravating factors. In addition, the State proceeded
against Garcia on one count of conspiracy (720 ILCS 5/8--2
(West 1992)) to commit aggravated criminal sexual assault
(count 41); one count of criminal sexual assault (720 ILCS 5/12-
-13(a)(1) (West 1992)) based on Garcia's penetration of S.B.'s
vagina (count 45); and one count of aggravated unlawful
restraint (720 ILCS 5/10--3.1 (West 1992)) (count 56).
The jury found Garcia guilty of two acts of sexual
penetration: his own penetration of S.B.'s vagina and, under a
theory of accountability, Wallace's penetration of S.B.'s vagina.
The jury also found Garcia guilty of the conspiracy, criminal
sexual assault, and aggravated unlawful restraint charges.
At sentencing, the trial judge merged Garcia's convictions
for the lesser included offenses of criminal sexual assault (count
45) and aggravated unlawful restraint (count 56) into Garcia's
other convictions. No sentences were entered on these counts.
The judge sentenced Garcia to 30 years' imprisonment for
aggravated criminal sexual assault based on count 1. The judge
then sentenced Garcia to four, 30-year terms of imprisonment
for aggravated criminal sexual assault based on counts 2, 9, 11,
and 21 to be served concurrent with each other and concurrent
with count 1. The judge sentenced Garcia on count 2 despite the
fact that count 2 had been nol-prossed prior to trial. The judge
failed to enter a sentence on count 3, a count submitted to the
jury. Apparently, the judge transposed these two counts when
imposing Garcia's sentences.
In addition, the judge sentenced Garcia to a 15-year
concurrent term of imprisonment for conspiracy to commit
aggravated criminal sexual assault (count 41). Finally, the judge
sentenced Garcia to a 20-year term of imprisonment for
aggravated criminal sexual assault (count 17) that was to run
consecutively to counts 1, 2, 9, 11, 21, and 41. Taken together,
the concurrent 30-year terms and the consecutive 20-year term
totaled 50 years of imprisonment.
Garcia appealed his convictions and sentences. The
appellate court stated that Garcia waived review of his sentences
through his failure to challenge them in the trial court with a
written motion pursuant to section 5--8--1(c) of the Unified
Code of Corrections (730 ILCS 5/5--8--1(c) (West Supp. 1993)).
Nevertheless, the court addressed Garcia's sentences because the
sentences were related to the propriety of Garcia's convictions
and because of our holding in People v. Arna, 168 Ill. 2d 107
(1995). In Arna, we found that an order imposing concurrent
terms of imprisonment is void when consecutive terms of
imprisonment are required by section 5--8--4(a). Arna, 168 Ill. 2d at 112-13.
The appellate court vacated Garcia's conviction and
sentence for conspiracy to commit aggravated criminal sexual
assault (count 41). The court stated that no person may be
convicted of both the inchoate and the principal offense. See
720 ILCS 5/8--5 (West 1992). The appellate court also vacated
Garcia's sentence for aggravated criminal sexual assault based
on count 2 because the jury did not return a verdict of guilty on
count 2.
In addition, the appellate court found that Garcia was
improperly convicted on multiple counts arising from two single
acts. See People v. Riley, 219 Ill. App. 3d 482, 493 (1991).
Counts 1, 9, and 17 concern the act of Garcia penetrating S.B.'s
vagina. Counts 11 and 21 concern the act of Wallace penetrating
S.B.'s vagina. However, the court did not remand to the trial
court for a determination as to which two of the five convictions
for aggravated criminal sexual assault Garcia was to be
sentenced on. See People v. Segara, 126 Ill. 2d 70, 78 (1988).
Instead, the court affirmed the convictions on counts 1 and 11
and vacated Garcia's convictions on counts 9, 17, and 21.
The appellate court found that because the sentences entered
on counts 1 and 11 were concurrent, the sentences violated
section 5--8--4(a) and were therefore void under Arna. The court
vacated these sentences and remanded to the trial court so that
two consecutive sentences could be entered on counts 1 and 11
in conformity with section 5--8--4(a).
The appellate court did not address Garcia's convictions for
the lesser included offenses of criminal sexual assault (count 45)
and aggravated unlawful restraint (count 56). The trial judge had
merged these counts into Garcia's other convictions.
Cause No. 81248
Roger Wallace was 22 years old at the time of the crimes.
Wallace was charged by a 56-count indictment. Prior to trial, the
State nol-prossed three counts of the indictment (counts 42, 43,
44). The State proceeded on 40 counts of aggravated criminal
sexual assault (counts 1 through 40). These counts were based
on Wallace's penetration of S.B.'s vagina and mouth as well as
his accountability for the similar sexual assaults committed by
Garcia, Walters, and O'Neal. These counts were premised on
five aggravating factors: using a dangerous weapon; causing the
victim bodily harm; threatening the victim's life; endangering
the victim's life; and committing the sexual assault during the
course of another felony (armed robbery). 720 ILCS 5/12--
14(a)(1), (a)(2), (a)(3), (a)(4) (West 1992).
In addition, the State proceeded against Wallace on one
count of conspiracy to commit aggravated criminal sexual
assault (count 41); eight counts of criminal sexual assault based
on Wallace's penetration of S.B.'s vagina and mouth as well as
his accountability for the similar sexual assaults committed by
Garcia, Walters, and O'Neal (counts 45 through 52); two counts
of aggravated battery (720 ILCS 5/12--4(a) (West 1992)) (counts
53, 54); one count of compelling organizational membership
(720 ILCS 5/12--6.1 (West 1992)) (count 55); and one count of
aggravated unlawful restraint (count 56).
Following a bench trial, Wallace was found guilty of 40
counts of aggravated criminal sexual assault (counts 1 through
40); one count of conspiracy (count 41); eight counts of criminal
sexual assault (counts 45 through 52); two counts of aggravated
battery (counts 53, 54); and one count of aggravated unlawful
restraint (count 56). In addition, the trial judge found Wallace
guilty of one count of armed violence (720 ILCS 5/33A--2
(West 1992)) predicated on aggravated battery despite the fact
that the State had nol-prossed this count prior to trial (count 44).
Wallace was found not guilty of compelling organizational
membership (count 55). Wallace was also found not guilty of
armed robbery (720 ILCS 5/18--2 (West 1992)) even though the
State had nol-prossed the armed robbery count prior to trial
(count 43).
At sentencing, the trial judge merged Wallace's convictions
for the lesser included offenses of criminal sexual assault
(counts 45 through 52) and aggravated unlawful restraint (count
56) into Wallace's other convictions. No sentences were entered
on these counts.
The judge sentenced Wallace to concurrent 30-year terms
of imprisonment for aggravated criminal sexual assault based on
counts 1 through 34. The judge then sentenced Wallace to six,
10-year terms of imprisonment for aggravated criminal sexual
assault based on counts 35 through 40 to be served concurrently
with each other. These six concurrent terms were to be served
consecutively to the 30-year terms based on counts 1 through
34.
Next, the judge sentenced Wallace to a 15-year term of
imprisonment for conspiracy to commit aggravated criminal
sexual assault (count 41) to be served concurrently with the 30-
year terms entered on counts 1 through 34. The judge also
sentenced Wallace to a concurrent 30-year term of imprisonment
for armed violence even though the armed violence count had
been nol-prossed prior to trial (count 44). Finally, the judge
sentenced Wallace to a five-year term of imprisonment for
aggravated battery (counts 53, 54) to be served concurrently
with counts 1 through 34. Taken together, the concurrent 30-
year terms and the consecutive 10-year terms totaled 40 years
of imprisonment.
Wallace appealed his convictions and sentences. The
appellate court stated that Wallace waived review of his
sentences through his failure to challenge them in the trial court
with a written motion pursuant to section 5--8--1(c).
Nevertheless, the court addressed Wallace's sentences because
the sentences were related to the propriety of Wallace's
convictions and because of our holding in Arna.
The appellate court vacated Wallace's conviction and
sentence for conspiracy to commit aggravated criminal sexual
assault (count 41). See 720 ILCS 5/8--5 (West 1992). The court
also vacated Wallace's conviction and sentence for armed
violence (count 44) because the State nol-prossed this count
prior to trial.
In addition, the appellate court found that no evidence was
presented at trial demonstrating that either Garcia's or O'Neal's
penis penetrated S.B.'s mouth. Accordingly, Wallace's
convictions for aggravated criminal sexual assault based on a
theory of accountability for Garcia's and O'Neal's penetration
of S.B.'s mouth were not supported by the evidence. The court
vacated these convictions and their corresponding sentences
(counts 5, 8, 13, 16, 25, 26, 31, 32, 37, 40).
Next, the appellate court found that the charge of armed
robbery against Wallace had been nol-prossed prior to trial
(count 43). Notwithstanding the nolle prosequi, the trial judge
found Wallace not guilty of armed robbery. However, the trial
judge did find Wallace guilty of eight counts of aggravated
criminal sexual assault premised on the aggravating factor that
the sexual assault was committed during an armed robbery. The
appellate court vacated Wallace's convictions and sentences for
aggravated criminal sexual assault premised on armed robbery
(counts 33 through 40).
The appellate court also found that Wallace was improperly
convicted on 24 counts of aggravated criminal sexual assault
when he was only responsible for six acts of penetration:
vaginal penetrations by Wallace, Garcia, O'Neal, and Walters;
and oral penetrations by Wallace and Walters. The redundant
convictions violated the one-act, one-crime rule. The court noted
that Wallace and the State concurred that convictions on counts
1, 2, 3, 4, 6, and 7 should remain while the other 18 counts
(counts 9, 10, 11, 12, 14, 15, 17 through 24, and 27 through 30)
were to be vacated.
The appellate court found that the trial judge's failure to
enter six consecutive sentences on Wallace's six convictions for
aggravated criminal sexual assault violated section 5--8--4(a).
Thus, Wallace's concurrent terms of 30 years' imprisonment
based on counts 1 through 34 were void under Arna. The court
vacated these sentences and remanded for the imposition of six
consecutive sentences for aggravated criminal sexual assault in
conformity with section 5--8--4(a).
The appellate court did not address Wallace's convictions
for the lesser included offenses of criminal sexual assault
(counts 45 through 52) and aggravated unlawful restraint (count
56). The trial judge had merged these counts into Wallace's
other convictions. In addition, the court did not address
Wallace's convictions or sentence for aggravated battery (counts
53, 54).
Cause No. 81274
Aaron O'Neal was 27 years old at the time of the crimes.
O'Neal was charged by a 57-count indictment. Prior to trial, the
State nol-prossed 43 counts of the indictment. The State
proceeded against O'Neal on one count of aggravated criminal
sexual assault based on his penetration of S.B.'s vagina and
causing her bodily harm (count 12). The State also proceeded on
seven counts of aggravated criminal sexual assault based on
O'Neal's accountability for the penetration of S.B.'s vagina and
mouth by Garcia, Walters, and Wallace (counts 3, 9, 10, 11, 14,
17, 20). These counts were premised on three aggravating
factors: using a dangerous weapon; causing the victim bodily
harm; and threatening the victim's life.
The State also proceeded against O'Neal on one count of
conspiracy to commit aggravated criminal sexual assault (count
41) and four counts of criminal sexual assault: O'Neal's
penetration of S.B.'s vagina (count 48); O'Neal's accountability
for the penetration of S.B.'s vagina by Garcia (count 45); and
O'Neal's accountability for the penetration of S.B.'s vagina and
mouth by Walters (counts 46, 50). Finally, the State proceeded
on one count of aggravated unlawful restraint (count 56).
The jury found O'Neal guilty of five acts of aggravated
criminal sexual assault: his own penetration of S.B.'s vagina;
and under a theory of accountability, Garcia's penetration of
S.B.'s vagina; Walter's penetration of S.B.'s vagina and mouth;
and Wallace's penetration of S.B.'s vagina. The jury also found
O'Neal guilty of the conspiracy, criminal sexual assault, and
aggravated unlawful restraint charges.
At sentencing, the trial judge merged O'Neal's convictions
for the lesser included offenses of criminal sexual assault
(counts 45, 46, 48, 50) and aggravated unlawful restraint (count
56) into O'Neal's other convictions. No sentences were entered
on these counts.
The judge sentenced O'Neal to 30 years' imprisonment for
aggravated criminal sexual assault based on count 3. The judge
then sentenced O'Neal to six, 30-year terms of imprisonment for
aggravated criminal sexual assault based on counts 9, 10, 11, 14,
17, and 21 to be served concurrent with each other and with
count 3.
The judge also sentenced O'Neal to a 15-year concurrent
term of imprisonment for conspiracy to commit aggravated
criminal sexual assault (count 41). Finally, the judge sentenced
O'Neal to a 30-year term of imprisonment for aggravated
criminal sexual assault (count 12) that was to be served
consecutively to counts 3, 9, 10, 11, 14, 17, 21, and 41. Taken
together, the concurrent 30-year terms and the consecutive 30-
year term totaled 60 years of imprisonment.
O'Neal appealed his convictions and sentences. The
appellate court stated that O'Neal waived review of his
sentences through his failure to challenge them in the trial court
with a written motion pursuant to section 5--8--1(c).
Nevertheless, the court addressed O'Neal's sentences because
the sentences were related to the propriety of O'Neal's
convictions and because of our holding in Arna.
The appellate court vacated O'Neal's conviction and
sentence for conspiracy to commit aggravated criminal sexual
assault (count 41). See 720 ILCS 5/8--5 (West 1992). Unlike
Garcia and Wallace, however, several of O'Neal's convictions
did not run afoul of the one-act, one-crime rule. O'Neal was
convicted on only one count of aggravated criminal sexual
assault for his penetration of S.B.'s vagina (count 12), for
Walter's penetration of S.B.'s vagina (count 10), and for
Walter's penetration of S.B.'s mouth (count 14). These
convictions properly reflect one conviction per criminal act.
However, O'Neal was convicted twice for Garcia's
penetration of S.B.'s vagina (counts 9, 17) and three times for
Wallace's penetration of S.B.'s vagina (counts 3, 11, 21).
Instead of remanding for a determination as to which two of
these five counts O'Neal was to be sentenced on (see Segara,
126 Ill. 2d at 78), the appellate court itself determined that
counts 3 and 9 should be affirmed while the convictions on
counts 11, 17, and 21 should be vacated.
The appellate court found that the sentences entered on
counts 3, 9, 10, 12, and 14 were not consecutive. Thus, these
sentences did not conform with section 5--8--4(a) and were void
under Arna. The court vacated these sentences and remanded to
the trial court for the imposition of five consecutive sentences
in conformity with section 5--8--4(a).
The appellate court did not address O'Neal's convictions for
the lesser included offenses of criminal sexual assault (counts
45, 46, 48, 50) and aggravated unlawful restraint (count 56).
The trial judge had merged these counts into O'Neal's other
convictions.
DISCUSSION
Prior to our discussion of the sentencing issues raised in
this appeal, we address several of defendants' convictions and
sentences that are not contested on the merits by the parties. A
preliminary resolution of these concerns will serve to clarify a
somewhat complicated assortment of indictment counts,
convictions, and sentences.
As a general matter, the State has renewed here its
argument made in the appellate court that defendants have
waived review of any sentencing errors that occurred in the trial
court by failing to file section 5--8--1(c) motions challenging
their sentences. The appellate court agreed with the State and
found that defendants had waived review of any sentencing
issues. Despite this finding of waiver, the court still considered
defendants' sentencing claims because those claims were related
to the propriety of each defendant's convictions. See 281 Ill.
App. 3d at 613. Because the State has not contested the
judgment of the appellate court, we will not review the State's
waiver claim here.
The appellate court did not address defendants' convictions
for the lesser included offenses of criminal sexual assault and
aggravated unlawful restraint (Garcia, counts 45, 56; Wallace,
counts 45 through 52, and 56; O'Neal, counts 45, 46, 48, 50,
56). The trial judge had merged these counts into defendants'
other convictions and did not enter sentences on these counts.
The parties do not raise any issues regarding these convictions.
These convictions are not before us and we do not consider
them.
The appellate court also did not address Wallace's
convictions and sentence for aggravated battery (counts 53, 54).
The trial judge had sentenced Wallace to a five-year concurrent
term of imprisonment for these convictions. The parties do not
raise any issues regarding the aggravated battery counts.
Wallace's aggravated battery convictions are not before us and
we do not consider them.
A person may not be convicted of both the inchoate and the
principal offense. See 720 ILCS 5/8--5 (West 1992); People v.
St. Pierre, 146 Ill. 2d 494, 519 (1992). In the trial court, each
defendant was found guilty and sentenced for the inchoate
offense of conspiracy to commit aggravated criminal sexual
assault as well as the principal offense of aggravated criminal
sexual assault. The appellate court vacated the convictions and
sentences on the conspiracy counts. The parties do not address
the merits of this issue. We affirm the appellate court's finding
that the convictions and sentences for conspiracy imposed on
Garcia (count 41), Wallace (count 41), and O'Neal (count 41)
should be vacated.
The trial judge sentenced Garcia on one count of aggravated
criminal sexual assault based on his accountability for Walter's
penetration of S.B.'s vagina (count 2). However, the State nol-
prossed this count prior to trial. The appellate court vacated the
sentence on count 2. The parties do not address the merits of
this issue. We affirm the appellate court's finding that Garcia's
sentence for aggravated criminal sexual assault based on count
2 should be vacated.
The trial judge found Wallace guilty of one count of armed
violence predicated on aggravated battery even though the State
had nol-prossed this count prior to trial. The appellate court
vacated Wallace's conviction and sentence for armed violence.
The parties do not address the merits of this issue. We affirm
the appellate court's finding that Wallace's conviction and
sentence for armed violence should be vacated (count 44).
Additionally, no evidence was presented at trial
demonstrating that Garcia's or O'Neal's penis penetrated S.B.'s
mouth. The appellate court found that Wallace's convictions for
aggravated criminal sexual assault based on a theory of
accountability for Garcia's and O'Neal's penetration of S.B.'s
mouth were not supported by the evidence. The appellate court
vacated these convictions and their corresponding sentences. The
parties do not address the merits of this issue. We affirm the
appellate court's finding that Wallace's convictions and
sentences for aggravated criminal sexual assault based on the
penetration of S.B.'s mouth by Garcia and O'Neal should be
vacated (counts 5, 8, 13, 16, 25, 26, 31, 32, 37, 40).
The charge of armed robbery against Wallace was nol-
prossed prior to trial (count 43). Notwithstanding this fact, the
trial judge found Wallace not guilty of armed robbery. However,
the judge found Wallace guilty of eight counts of aggravated
criminal sexual assault premised on the aggravating factor that
the sexual assault was committed during an armed robbery. The
appellate court vacated Wallace's convictions and sentences for
aggravated criminal sexual assault premised on armed robbery.
See Riley, 219 Ill. App. 3d at 491. The parties do not address
the merits of this issue. We affirm the appellate court's finding
that Wallace's convictions and corresponding sentences for
aggravated criminal sexual assault premised on armed robbery
should be vacated (counts 33 through 40).
Furthermore, the parties do not take issue with the
proposition that multiple convictions cannot be carved from the
same physical act. See People v. King, 66 Ill. 2d 551, 566
(1977). However, Garcia and O'Neal argue that the appellate
court erred in its application of the one-act, one-crime rule.
They argue that the appellate court improperly determined which
of several convictions for aggravated criminal sexual assault
should be vacated and which convictions should have sentences
entered on them. The State argues that the appellate court
correctly determined which convictions should be vacated and
which should have sentences entered on them.
When multiple convictions of greater and lesser offenses are
obtained for offenses arising from a single act, a sentence
should be imposed on the most serious offense and the
convictions on the less serious offenses should be vacated. See
People v. Cardona, 158 Ill. 2d 403, 411 (1994). However, when
multiple convictions for aggravated criminal sexual assault are
obtained from a single act of penetration, there is no way to
determine the most serious conviction because none of the
convictions involve either a more or less culpable mental state.
See People v. Calva, 256 Ill. App. 3d 865, 870 (1993). In such
cases, reviewing courts have remanded to the trial court for a
determination as to which "counts of aggravated criminal sexual
assault are retained." Segara, 126 Ill. 2d at 78; see also Calva,
256 Ill. App. 3d at 870 (following Segara); People v. Bell, 217
Ill. App. 3d 985, 1012 (1991) (following Segara).
We therefore reverse the appellate court's determinations
regarding which of Garcia's and O'Neal's convictions for
aggravated criminal sexual assault should have sentences entered
on them and which should be vacated. On remand, the judge is
to determine which of Garcia's convictions for aggravated
criminal sexual assault are to have sentences entered on them
for his penetration of S.B.'s vagina (count 1, 9, or 17) and for
his accountability for Wallace's penetration of S.B.'s vagina
(count 11 or 21). The judge is also to determine which of
O'Neal's convictions for aggravated criminal sexual assault are
to have sentences entered on them for his accountability for
Garcia's penetration of S.B.'s vagina (count 9 or 17) and his
accountability for Wallace's penetration of S.B.'s vagina (count
3, 11, or 21). The sentences imposed on Garcia's and O'Neal's
redundant convictions should be vacated.
We note that neither Wallace nor the State take issue with
the application of the one-act, one-crime rule in Wallace's case.
In the appellate court, the court noted that Wallace and the State
concurred that convictions on counts 1, 2, 3, 4, 6, and 7 should
remain while the other 18 counts (counts 9, 10, 11, 12, 14, 15,
17 through 24, and 27 through 30) were to be vacated. Given
Wallace's and the State's concurrence, and the fact that neither
party addresses this point on the merits, we affirm the appellate
court's finding as to Wallace.
Garcia's two convictions for aggravated criminal sexual
assault, Wallace's six convictions for aggravated criminal sexual
assault, and O'Neal's five convictions for aggravated criminal
sexual assault trigger the consecutive sentencing provision of
section 5--8--4(a). See 730 ILCS 5/5--8--4(a) (West 1992).
Defendants do not dispute that section 5--8--4(a) requires this
result. Accordingly, on remand, once the trial judge has
determined which of defendants' convictions for aggravated
criminal sexual assault shall have sentences entered on them, the
judge is directed to enter consecutive sentences on these
convictions in conformity with section 5--8--4(a).
The remaining issues arise from the imposition of
consecutive sentences on remand. In remanding, the appellate
court "allow[ed] the circuit court, in its discretion, either to
increase the total sentence [imposed on a defendant] or to
impose a total sentence equal to the total of the vacated
sentences." 281 Ill. App. 3d at 615. Defendants argue that the
appellate court's remand instructions violate: (1) Supreme Court
Rule 615(b) (134 Ill. 2d R. 615(b)) which describes the powers
of a reviewing court; (2) section 5--8--1(c) of the Unified Code
of Corrections which governs a defendant's motion to reduce a
sentence; (3) the statute on resentencing (730 ILCS 5/5--5--4
(West 1992)); and (4) defendants' federal due process rights.
In this appeal, however, we need not reach these issues.
Because the concurrent sentences imposed on various counts
were imposed in some instances in violation of section 5--8--
4(a) requiring consecutive sentences, those sentences are void.
Arna, 168 Ill. 2d at 112-13. The sentences to be imposed on
those counts on remand, therefore, will not be greater than, less,
or equal to defendants' original sentences. See People v. Roth,
Inc., 412 Ill. 446, 450 (1952) ("a void decree has no legal
effect"); Arna, 168 Ill. 2d at 113 (because order imposing
concurrent terms was void, appellate court not prohibited from
increasing defendant's sentence on review). Thus, defendants'
resentencing arguments based on Rule 615(b), section 5--8--1(c)
of the Unified Code of Corrections, and the statute on
resentencing are inapplicable because they are premised on the
erroneous assumption that there is a valid sentence to increase.
Defendants also argue that an increased sentence on remand
would violate their federal due process rights. Defendants rely
on the prophylactic rule announced in North Carolina v. Pearce,
395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969),
designed to protect a defendant on retrial from the potential
vindictiveness of a resentencing judge. Pearce held that if an
increased sentence is imposed following a retrial, reasons for the
increased sentence must appear on the record and be based on
objective information regarding the defendant's conduct
subsequent to the imposition of the original sentence. Pearce,
395 U.S. at 726, 23 L. Ed. 2d at 670, 89 S. Ct. at 2081.
However, the Supreme Court has explained that "[w]hile the
Pearce opinion appeared on its face to announce a rule of
sweeping dimension, our subsequent cases have made clear that
its presumption of vindictiveness `do[es] not apply in every case
where a convicted defendant receives a higher sentence on
retrial.' " Alabama v. Smith, 490 U.S. 794, 799, 104 L. Ed. 2d 865, 872, 109 S. Ct. 2201, 2204 (1989) (second alteration in
original), quoting Texas v. McCullough, 475 U.S. 134, 138, 89 L. Ed. 2d 104, 110, 106 S. Ct. 976, 978 (1986). Thus, the
Supreme Court has stated that "vindictiveness of a sentencing
judge is the evil the Court sought to prevent rather than simply
enlarged sentences after a new trial." McCullough, 475 U.S. at
138, 89 L. Ed. 2d at 110, 106 S. Ct. at 978.
Defendants argue that the imposition of an increased
sentence on remand would violate Pearce's prophylactic rule.
We do not agree. The Supreme Court has stated that Pearce's
prophylactic rule has been limited in its application to
circumstances in which there is a reasonable likelihood that an
increase in sentence is the product of actual judicial
vindictiveness. See Smith, 490 U.S. at 799, 104 L. Ed. 2d at
872-73, 109 S. Ct. at 2204-05. "Where there is no such
reasonable likelihood, the burden remains upon the defendant to
prove actual vindictiveness." Smith, 490 U.S. at 799, 104 L. Ed. 2d at 873, 109 S. Ct. at 2205.
We believe that the correction of a void sentence under
Arna fails to present circumstances in which there is a
reasonable likelihood that a sentence imposed on remand will be
the product of judicial vindictiveness against a defendant. As a
general rule, defendants will not be raising Arna errors. Instead,
the State and reviewing courts will be the parties pointing to a
trial judge's error. Thus, it is not a defendant who runs the risk
of inciting the potential for judicial vindictiveness.
Of course, as the Supreme Court has noted, "Where the
prophylactic rule of Pearce does not apply, the defendant may
still obtain relief if he can show actual vindictiveness ***."
McCullough, 475 U.S. at 138, 89 L. Ed. 2d at 111, 106 S. Ct. at 979.
CONCLUSION
Based on the foregoing, the appellate court judgment is
affirmed in part and reversed in part. The circuit court judgment
is affirmed in part and reversed in part. These causes (Nos.
81246, 81248, 81274) are remanded to the circuit court. The
circuit court is directed to determine which of defendants'
convictions should have sentences entered on them in
conformity with this opinion. Those convictions upon which no
sentences are entered should be vacated. The circuit court is
directed to sentence defendants consistent with this opinion and
section 5--8--4(a) of the Unified Code of Corrections (730 ILCS
5/5--8--4(a) (West 1992)).
Nos. 81246, 81248, and 81274--
Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed in part
and reversed in part;
causes remanded.
JUSTICE NICKELS, dissenting:
This appeal raises the question of whether the circuit court
may impose consecutive sentences on remand where the circuit
court initially imposed concurrent sentences on certain offenses.
The majority holds that the initial sentences were "void" and
therefore the circuit court may impose consecutive sentences.
This holding allows the circuit court to lengthen the aggregate
sentence for each defendant. Because this holding, in effect,
penalizes defendants for appealing their sentences, I dissent.
In reaching its conclusion, the majority relies heavily on
People v. Arna, 168 Ill. 2d 107 (1995). In Arna, the defendant
was convicted of two counts of attempted first degree murder.
He was sentenced to concurrent terms of 30 and 45 years in
prison, as opposed to consecutive terms. This court held that the
circuit court erred in sentencing and that consecutive sentences
were required. Although the State was not entitled to appeal the
sentencing issue, this court found that the issue was reviewable.
In justifying this action, the Arna majority reasoned that "[a]
sentence which does not conform to a statutory requirement is
void" and is therefore reviewable at any time. Arna, 168 Ill. 2d
at 113.
I dissented in Arna and I still believe Arna was wrongly
decided. See Arna, 168 Ill. 2d at 115-17 (Nickels, J., dissenting).
Supreme Court Rule 604(a) is specific in providing when the
State may appeal in criminal cases. It does not allow the State
to appeal sentencing issues. See 145 Ill. 2d R. 604(a). In the
majority's discussion, the majority notes that "the State and
reviewing courts will be the parties pointing to a trial judge's
error." Slip op. at 16. Because the State may not appeal
sentencing issues, it is also prohibited on a defendant's appeal
from "pointing to" sentencing errors made in the circuit court.
In addition, Rule 615(b) sets forth the powers of a reviewing
court. It does not give a reviewing court the power to increase
a sentence on appeal. See 134 Ill. 2d R. 615(b). In the instant
case, the majority essentially authorizes an increase in
defendants' aggregate sentences.
In addition to requiring consecutive sentences on remand,
the majority finds that, because the original sentences imposed
on the various counts were void, the sentences imposed on
remand "will not be greater than, less, or equal to defendants'
original sentences." Slip op. at 15. The majority apparently
holds that the circuit court may impose a longer sentence for
each individual offense. This is simply incorrect. Section 5--5--4
of the Unified Code of Corrections provides:
"Where a conviction or sentence has been set aside on
direct review or on collateral attack, the court shall not
impose a new sentence for the same offense or for a
different offense based on the same conduct which is
more severe than the prior sentence less the portion of
the prior sentence previously satisfied unless the more
severe sentence is based upon conduct on the part of the
defendant occurring after the original sentencing." 730
ILCS 5/5--5--4 (West 1992).
This statute places a limitation on resentencing. The statute
applies to the instant case because defendants' sentences have
been "set aside" on appeal. Pursuant to the statute, a more
severe sentence can be imposed for each individual offense only
if it is based on conduct that occurs after sentencing.
In their briefs, defendants argue against the imposition of
more severe sentences on remand. They rely extensively on
People v. Kilpatrick, 167 Ill. 2d 439 (1995), and People v.
Jones, 168 Ill. 2d 367 (1995), two recent cases from this court.
Although these cases were discussed in the appellate court and
raised in the briefs to this court, the majority ignores them.
In Kilpatrick, the circuit court imposed consecutive
sentences of six and nine years for two offenses. On
reconsideration, the circuit court determined that consecutive
sentences were not appropriate under the sentencing statute and
vacated the consecutive sentences. It then imposed longer terms
of 15 years for each offense, to be served concurrently. In
Kilpatrick, this court held that this action resulted in an
impermissible increase in sentencing because section 5--8--1(c)
of the Unified Code of Corrections (730 ILCS 5/5--8--1(c)
(West 1992)) prohibited the circuit court from increasing a
sentence after it was imposed. Thus, on reconsideration, the
circuit court could not impose a more severe sentence for each
individual offense. This court employed the same reasoning in
Jones, 168 Ill. 2d 367.
In Kilpatrick and Jones, this court found that section 5--8--
1(c) limited the circuit court's discretion in resentencing after
the defendants filed motions to reconsider in the circuit court.
Similarly, in the instant case, section 5--5--4 limits the circuit
court's discretion in resentencing where a reviewing court has
set aside the original sentences on appeal. It is inconsistent to
hold that a sentence cannot be increased after a motion to
reconsider the sentence but may be increased on resentencing
following an appeal. Given these similar statutory prohibitions
and given the reasoning of Kilpatrick and Jones, the circuit
court cannot impose a more severe sentence on each individual
offense.
The majority fails to address the foregoing statutes and case
law. According to the majority, because the original sentences
were "void," there are no limitations on the circuit court on
remand. The majority holds that the circuit court is free to
impose any sentence for each individual offense, even if it is
greater than the original sentence.
I believe that there is a fundamental inconsistency between
Arna, which the majority relies on in the instant case, and
Kilpatrick and Jones. Under the majority's reasoning, the
defendants' original sentences in Kilpatrick and Jones would
have been just as void as those involved here because there was
no statutory authorization for the original sentences. Under this
reasoning, any time a trial judge does not correctly follow a
sentencing statute and makes an erroneous decision, the sentence
is void. In effect, this reasoning eliminates many of the statutory
protections and rules that safeguard defendants on resentencing.
Such a result raises grave due process concerns.
In my view, the best solution is to recognize that Arna was
wrongly decided and to overrule it. In the instant case, the
circuit court may have applied the sentencing statute incorrectly,
but this error does not make its determination "void." Sentences
were imposed for each defendant. They appealed their
convictions and sentences and were partially successful in their
appeals. On remand, however, they may suffer the consequences
of longer sentences as a result of pursuing their right to appeal.
Given such consequences, defendants in future cases will
face a difficult choice. They may choose to appeal in the belief
that they have meritorious legal arguments requiring reversal. It
may be wiser, however, to forgo an appeal because defendants
will subject themselves to the risk of increased punishment by
appealing. Certainly, such a scenario will have a chilling effect
on every defendant's right to appeal and clearly flies in the face
of Rule 615(b) and section 5--5--4 of the Unified Code of
Corrections. Defendants should not be required to make such a
choice. For the foregoing reasons, I dissent.
JUSTICES HARRISON and McMORROW join in this
dissent.
81274 cons.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior to
issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in
the Official Reports advance sheets following final action by the
Court.
Docket Nos. 81246, 81248, 81274 cons.--Agenda 9--May
1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
VICTOR GARCIA, Appellant.--THE PEOPLE OF THE
STATE OF ILLINOIS, Appellee, v. ROGER WALLACE,
Appellant.--THE PEOPLE OF THE STATE OF ILLINOIS,
Appellee, v. AARON O'NEAL, Appellant.
Opinion filed October 23, 1997.
JUSTICE MILLER delivered the opinion of the court:
Victor Garcia, Roger Wallace, and Aaron O'Neal,
defendants in these consolidated cases, were convicted of
numerous crimes in the circuit court of Cook County for the
gang rape of an 18-year-old female victim. In sentencing
defendants, the trial judge failed to enter consecutive sentences
on several convictions as required under section 5--8--4(a) of the
Unified Code of Corrections (730 ILCS 5/5--8--4(a) (West
1992)). The relevant portion of section 5--8--4(a) provides:
"The 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, unless,
one of the offenses for which defendant was convicted
was a Class X or Class 1 felony and the defendant
inflicted severe bodily injury, or where the defendant
was convicted of a violation of Section 12--13 or 12--14
[aggravated criminal sexual assault] of the Criminal
Code of 1961, in which event the court shall enter
sentences to run consecutively." 730 ILCS 5/5--8--4(a)
(West 1992).
The appellate court found that the trial judge's imposition
of several concurrent sentences in violation of section 5--8--4(a)
rendered those sentences void. 281 Ill. App. 3d 602, 613. The
court vacated all of defendants' sentences and remanded to the
trial court for resentencing. 281 Ill. App. 3d at 615, 617.
Defendants, Victor Garcia (cause No. 81246), Roger
Wallace (cause No. 81248), and Aaron O'Neal (cause No.
81274), each filed a petition for leave to appeal. 155 Ill. 2d R.
315(a); 134 Ill. 2d R. 612(b). We allowed defendants' petitions
and consolidated them for purposes of this appeal.
BACKGROUND
The victim (S.B.) had been dating Victor Garcia for about
one week. On the afternoon of June 2, 1992, S.B. and her friend
Jessica met Garcia, Roger Wallace, Aaron O'Neal, and Richard
Walters (a codefendant not a party to this appeal) at a park.
Without S.B.'s knowledge, the four males had decided to initiate
S.B. as a "Deucette"--a member of the female branch of the
Insane Deuces street gang. A Deucette's initiation consists of
engaging in sex with a number of male gang members.
After meeting at the park, S.B. agreed to go with Garcia,
Wallace, O'Neal, and Walters to Walters' apartment in order to
drink some alcoholic beverages. Jessica could not attend and left
to pick up her sister. Once at the apartment, the group played a
drinking game in which S.B. consumed approximately five to
eight shots of alcohol in a short amount of time.
Following the drinking game, Garcia led S.B. to the
bedroom of the apartment and asked S.B. to engage in
consensual sex. S.B. refused. Despite S.B.'s refusal, Garcia
removed S.B.'s clothing and penetrated S.B.'s vagina with his
penis. When S.B. screamed for Garcia to stop, Garcia hit her
several times and told her to shut up. Garcia then left the
bedroom.
O'Neal and Walters entered the bedroom. O'Neal penetrated
S.B.'s vagina with his penis. When S.B. screamed, O'Neal hit
her. Walters penetrated S.B.'s mouth with his penis. Then,
following O'Neal's instruction that Walters have intercourse
with S.B., Walters either penetrated or touched S.B.'s vagina
with his penis. Throughout this episode, S.B. was crying and
screaming for them to stop. When O'Neal and Walters exited
the bedroom, Walters was carrying a handgun.
Next, Wallace entered the bedroom. Wallace either
penetrated or touched S.B.'s vagina with his penis. S.B.
continued to cry and scream. In order to quiet S.B., Wallace hit
her. Wallace then exited the bedroom.
Later, S.B. and the mattress from the bedroom were brought
into the living room of the apartment. Pursuant to an instruction
from O'Neal, Wallace penetrated or touched S.B.'s vagina with
his penis. In order to quiet S.B.'s screams, Garcia held a gun to
her head and threatened to kill her if she did not shut up.
Wallace then penetrated S.B.'s mouth with his penis.
Garcia, O'Neal, and Wallace discussed whether S.B. should
be killed. Following this discussion, but prior to any attempt on
S.B.'s life, Walters left the apartment. Garcia and Wallace then
choked S.B. with a plastic belt. S.B. went unconscious and
urinated. However, the belt broke during the strangulation and
S.B. survived.
The next morning, Garcia, O'Neal, and Wallace instructed
S.B. not to tell her parents or the police what had happened.
Defendants fabricated a story so that S.B. could explain her
injuries without implicating defendants. Defendants quizzed S.B.
regarding the story. Garcia and Wallace walked S.B. to a bus
stop so that she could get home. Before the bus arrived, Garcia
and Wallace left. After arriving at home, S.B. told her friend
Jessica, her mother, the police, and emergency room medical
personnel what had happened and not the story fabricated by
defendants.
Later, Garcia, Wallace, O'Neal, and Walters were arrested
and charged by indictment. Garcia, Wallace, and O'Neal were
tried simultaneously in severed trials. Garcia and O'Neal were
tried before separate juries. Wallace was tried in a bench trial.
Richard Walters agreed to be a witness for the State in exchange
for his plea of guilty and a 10-year prison sentence. Richard
Walters is not a party to this appeal.
Cause No. 81246
Victor Garcia was 16 years old at the time of the crimes.
Garcia was charged as an adult in a 56-count indictment. Prior
to trial, the State nol-prossed 47 counts of the indictment. The
State initially proceeded against Garcia on three counts of
aggravated criminal sexual assault based on Garcia's penetration
of S.B.'s vagina (counts 1, 9, 17). The counts were premised on
three distinct aggravating factors: using a dangerous weapon;
causing the victim bodily harm; and threatening the victim's
life. 720 ILCS 5/12--14(a)(1), (a)(2), (a)(3) (West 1992).
The State also proceeded against Garcia on three counts of
aggravated criminal sexual assault under a theory of
accountability based on Wallace's penetration of S.B.'s vagina
(counts 3, 11, 21). These counts were premised on the same
three aggravating factors. In addition, the State proceeded
against Garcia on one count of conspiracy (720 ILCS 5/8--2
(West 1992)) to commit aggravated criminal sexual assault
(count 41); one count of criminal sexual assault (720 ILCS 5/12-
-13(a)(1) (West 1992)) based on Garcia's penetration of S.B.'s
vagina (count 45); and one count of aggravated unlawful
restraint (720 ILCS 5/10--3.1 (West 1992)) (count 56).
The jury found Garcia guilty of two acts of sexual
penetration: his own penetration of S.B.'s vagina and, under a
theory of accountability, Wallace's penetration of S.B.'s vagina.
The jury also found Garcia guilty of the conspiracy, criminal
sexual assault, and aggravated unlawful restraint charges.
At sentencing, the trial judge merged Garcia's convictions
for the lesser included offenses of criminal sexual assault (count
45) and aggravated unlawful restraint (count 56) into Garcia's
other convictions. No sentences were entered on these counts.
The judge sentenced Garcia to 30 years' imprisonment for
aggravated criminal sexual assault based on count 1. The judge
then sentenced Garcia to four, 30-year terms of imprisonment
for aggravated criminal sexual assault based on counts 2, 9, 11,
and 21 to be served concurrent with each other and concurrent
with count 1. The judge sentenced Garcia on count 2 despite the
fact that count 2 had been nol-prossed prior to trial. The judge
failed to enter a sentence on count 3, a count submitted to the
jury. Apparently, the judge transposed these two counts when
imposing Garcia's sentences.
In addition, the judge sentenced Garcia to a 15-year
concurrent term of imprisonment for conspiracy to commit
aggravated criminal sexual assault (count 41). Finally, the judge
sentenced Garcia to a 20-year term of imprisonment for
aggravated criminal sexual assault (count 17) that was to run
consecutively to counts 1, 2, 9, 11, 21, and 41. Taken together,
the concurrent 30-year terms and the consecutive 20-year term
totaled 50 years of imprisonment.
Garcia appealed his convictions and sentences. The
appellate court stated that Garcia waived review of his sentences
through his failure to challenge them in the trial court with a
written motion pursuant to section 5--8--1(c) of the Unified
Code of Corrections (730 ILCS 5/5--8--1(c) (West Supp. 1993)).
Nevertheless, the court addressed Garcia's sentences because the
sentences were related to the propriety of Garcia's convictions
and because of our holding in People v. Arna, 168 Ill. 2d 107
(1995). In Arna, we found that an order imposing concurrent
terms of imprisonment is void when consecutive terms of
imprisonment are required by section 5--8--4(a). Arna, 168 Ill. 2d at 112-13.
The appellate court vacated Garcia's conviction and
sentence for conspiracy to commit aggravated criminal sexual
assault (count 41). The court stated that no person may be
convicted of both the inchoate and the principal offense. See
720 ILCS 5/8--5 (West 1992). The appellate court also vacated
Garcia's sentence for aggravated criminal sexual assault based
on count 2 because the jury did not return a verdict of guilty on
count 2.
In addition, the appellate court found that Garcia was
improperly convicted on multiple counts arising from two single
acts. See People v. Riley, 219 Ill. App. 3d 482, 493 (1991).
Counts 1, 9, and 17 concern the act of Garcia penetrating S.B.'s
vagina. Counts 11 and 21 concern the act of Wallace penetrating
S.B.'s vagina. However, the court did not remand to the trial
court for a determination as to which two of the five convictions
for aggravated criminal sexual assault Garcia was to be
sentenced on. See People v. Segara, 126 Ill. 2d 70, 78 (1988).
Instead, the court affirmed the convictions on counts 1 and 11
and vacated Garcia's convictions on counts 9, 17, and 21.
The appellate court found that because the sentences entered
on counts 1 and 11 were concurrent, the sentences violated
section 5--8--4(a) and were therefore void under Arna. The court
vacated these sentences and remanded to the trial court so that
two consecutive sentences could be entered on counts 1 and 11
in conformity with section 5--8--4(a).
The appellate court did not address Garcia's convictions for
the lesser included offenses of criminal sexual assault (count 45)
and aggravated unlawful restraint (count 56). The trial judge had
merged these counts into Garcia's other convictions.
Cause No. 81248
Roger Wallace was 22 years old at the time of the crimes.
Wallace was charged by a 56-count indictment. Prior to trial, the
State nol-prossed three counts of the indictment (counts 42, 43,
44). The State proceeded on 40 counts of aggravated criminal
sexual assault (counts 1 through 40). These counts were based
on Wallace's penetration of S.B.'s vagina and mouth as well as
his accountability for the similar sexual assaults committed by
Garcia, Walters, and O'Neal. These counts were premised on
five aggravating factors: using a dangerous weapon; causing the
victim bodily harm; threatening the victim's life; endangering
the victim's life; and committing the sexual assault during the
course of another felony (armed robbery). 720 ILCS 5/12--
14(a)(1), (a)(2), (a)(3), (a)(4) (West 1992).
In addition, the State proceeded against Wallace on one
count of conspiracy to commit aggravated criminal sexual
assault (count 41); eight counts of criminal sexual assault based
on Wallace's penetration of S.B.'s vagina and mouth as well as
his accountability for the similar sexual assaults committed by
Garcia, Walters, and O'Neal (counts 45 through 52); two counts
of aggravated battery (720 ILCS 5/12--4(a) (West 1992)) (counts
53, 54); one count of compelling organizational membership
(720 ILCS 5/12--6.1 (West 1992)) (count 55); and one count of
aggravated unlawful restraint (count 56).
Following a bench trial, Wallace was found guilty of 40
counts of aggravated criminal sexual assault (counts 1 through
40); one count of conspiracy (count 41); eight counts of criminal
sexual assault (counts 45 through 52); two counts of aggravated
battery (counts 53, 54); and one count of aggravated unlawful
restraint (count 56). In addition, the trial judge found Wallace
guilty of one count of armed violence (720 ILCS 5/33A--2
(West 1992)) predicated on aggravated battery despite the fact
that the State had nol-prossed this count prior to trial (count 44).
Wallace was found not guilty of compelling organizational
membership (count 55). Wallace was also found not guilty of
armed robbery (720 ILCS 5/18--2 (West 1992)) even though the
State had nol-prossed the armed robbery count prior to trial
(count 43).
At sentencing, the trial judge merged Wallace's convictions
for the lesser included offenses of criminal sexual assault
(counts 45 through 52) and aggravated unlawful restraint (count
56) into Wallace's other convictions. No sentences were entered
on these counts.
The judge sentenced Wallace to concurrent 30-year terms
of imprisonment for aggravated criminal sexual assault based on
counts 1 through 34. The judge then sentenced Wallace to six,
10-year terms of imprisonment for aggravated criminal sexual
assault based on counts 35 through 40 to be served concurrently
with each other. These six concurrent terms were to be served
consecutively to the 30-year terms based on counts 1 through
34.
Next, the judge sentenced Wallace to a 15-year term of
imprisonment for conspiracy to commit aggravated criminal
sexual assault (count 41) to be served concurrently with the 30-
year terms entered on counts 1 through 34. The judge also
sentenced Wallace to a concurrent 30-year term of imprisonment
for armed violence even though the armed violence count had
been nol-prossed prior to trial (count 44). Finally, the judge
sentenced Wallace to a five-year term of imprisonment for
aggravated battery (counts 53, 54) to be served concurrently
with counts 1 through 34. Taken together, the concurrent 30-
year terms and the consecutive 10-year terms totaled 40 years
of imprisonment.
Wallace appealed his convictions and sentences. The
appellate court stated that Wallace waived review of his
sentences through his failure to challenge them in the trial court
with a written motion pursuant to section 5--8--1(c).
Nevertheless, the court addressed Wallace's sentences because
the sentences were related to the propriety of Wallace's
convictions and because of our holding in Arna.
The appellate court vacated Wallace's conviction and
sentence for conspiracy to commit aggravated criminal sexual
assault (count 41). See 720 ILCS 5/8--5 (West 1992). The court
also vacated Wallace's conviction and sentence for armed
violence (count 44) because the State nol-prossed this count
prior to trial.
In addition, the appellate court found that no evidence was
presented at trial demonstrating that either Garcia's or O'Neal's
penis penetrated S.B.'s mouth. Accordingly, Wallace's
convictions for aggravated criminal sexual assault based on a
theory of accountability for Garcia's and O'Neal's penetration
of S.B.'s mouth were not supported by the evidence. The court
vacated these convictions and their corresponding sentences
(counts 5, 8, 13, 16, 25, 26, 31, 32, 37, 40).
Next, the appellate court found that the charge of armed
robbery against Wallace had been nol-prossed prior to trial
(count 43). Notwithstanding the nolle prosequi, the trial judge
found Wallace not guilty of armed robbery. However, the trial
judge did find Wallace guilty of eight counts of aggravated
criminal sexual assault premised on the aggravating factor that
the sexual assault was committed during an armed robbery. The
appellate court vacated Wallace's convictions and sentences for
aggravated criminal sexual assault premised on armed robbery
(counts 33 through 40).
The appellate court also found that Wallace was improperly
convicted on 24 counts of aggravated criminal sexual assault
when he was only responsible for six acts of penetration:
vaginal penetrations by Wallace, Garcia, O'Neal, and Walters;
and oral penetrations by Wallace and Walters. The redundant
convictions violated the one-act, one-crime rule. The court noted
that Wallace and the State concurred that convictions on counts
1, 2, 3, 4, 6, and 7 should remain while the other 18 counts
(counts 9, 10, 11, 12, 14, 15, 17 through 24, and 27 through 30)
were to be vacated.
The appellate court found that the trial judge's failure to
enter six consecutive sentences on Wallace's six convictions for
aggravated criminal sexual assault violated section 5--8--4(a).
Thus, Wallace's concurrent terms of 30 years' imprisonment
based on counts 1 through 34 were void under Arna. The court
vacated these sentences and remanded for the imposition of six
consecutive sentences for aggravated criminal sexual assault in
conformity with section 5--8--4(a).
The appellate court did not address Wallace's convictions
for the lesser included offenses of criminal sexual assault
(counts 45 through 52) and aggravated unlawful restraint (count
56). The trial judge had merged these counts into Wallace's
other convictions. In addition, the court did not address
Wallace's convictions or sentence for aggravated battery (counts
53, 54).
Cause No. 81274
Aaron O'Neal was 27 years old at the time of the crimes.
O'Neal was charged by a 57-count indictment. Prior to trial, the
State nol-prossed 43 counts of the indictment. The State
proceeded against O'Neal on one count of aggravated criminal
sexual assault based on his penetration of S.B.'s vagina and
causing her bodily harm (count 12). The State also proceeded on
seven counts of aggravated criminal sexual assault based on
O'Neal's accountability for the penetration of S.B.'s vagina and
mouth by Garcia, Walters, and Wallace (counts 3, 9, 10, 11, 14,
17, 20). These counts were premised on three aggravating
factors: using a dangerous weapon; causing the victim bodily
harm; and threatening the victim's life.
The State also proceeded against O'Neal on one count of
conspiracy to commit aggravated criminal sexual assault (count
41) and four counts of criminal sexual assault: O'Neal's
penetration of S.B.'s vagina (count 48); O'Neal's accountability
for the penetration of S.B.'s vagina by Garcia (count 45); and
O'Neal's accountability for the penetration of S.B.'s vagina and
mouth by Walters (counts 46, 50). Finally, the State proceeded
on one count of aggravated unlawful restraint (count 56).
The jury found O'Neal guilty of five acts of aggravated
criminal sexual assault: his own penetration of S.B.'s vagina;
and under a theory of accountability, Garcia's penetration of
S.B.'s vagina; Walter's penetration of S.B.'s vagina and mouth;
and Wallace's penetration of S.B.'s vagina. The jury also found
O'Neal guilty of the conspiracy, criminal sexual assault, and
aggravated unlawful restraint charges.
At sentencing, the trial judge merged O'Neal's convictions
for the lesser included offenses of criminal sexual assault
(counts 45, 46, 48, 50) and aggravated unlawful restraint (count
56) into O'Neal's other convictions. No sentences were entered
on these counts.
The judge sentenced O'Neal to 30 years' imprisonment for
aggravated criminal sexual assault based on count 3. The judge
then sentenced O'Neal to six, 30-year terms of imprisonment for
aggravated criminal sexual assault based on counts 9, 10, 11, 14,
17, and 21 to be served concurrent with each other and with
count 3.
The judge also sentenced O'Neal to a 15-year concurrent
term of imprisonment for conspiracy to commit aggravated
criminal sexual assault (count 41). Finally, the judge sentenced
O'Neal to a 30-year term of imprisonment for aggravated
criminal sexual assault (count 12) that was to be served
consecutively to counts 3, 9, 10, 11, 14, 17, 21, and 41. Taken
together, the concurrent 30-year terms and the consecutive 30-
year term totaled 60 years of imprisonment.
O'Neal appealed his convictions and sentences. The
appellate court stated that O'Neal waived review of his
sentences through his failure to challenge them in the trial court
with a written motion pursuant to section 5--8--1(c).
Nevertheless, the court addressed O'Neal's sentences because
the sentences were related to the propriety of O'Neal's
convictions and because of our holding in Arna.
The appellate court vacated O'Neal's conviction and
sentence for conspiracy to commit aggravated criminal sexual
assault (count 41). See 720 ILCS 5/8--5 (West 1992). Unlike
Garcia and Wallace, however, several of O'Neal's convictions
did not run afoul of the one-act, one-crime rule. O'Neal was
convicted on only one count of aggravated criminal sexual
assault for his penetration of S.B.'s vagina (count 12), for
Walter's penetration of S.B.'s vagina (count 10), and for
Walter's penetration of S.B.'s mouth (count 14). These
convictions properly reflect one conviction per criminal act.
However, O'Neal was convicted twice for Garcia's
penetration of S.B.'s vagina (counts 9, 17) and three times for
Wallace's penetration of S.B.'s vagina (counts 3, 11, 21).
Instead of remanding for a determination as to which two of
these five counts O'Neal was to be sentenced on (see Segara,
126 Ill. 2d at 78), the appellate court itself determined that
counts 3 and 9 should be affirmed while the convictions on
counts 11, 17, and 21 should be vacated.
The appellate court found that the sentences entered on
counts 3, 9, 10, 12, and 14 were not consecutive. Thus, these
sentences did not conform with section 5--8--4(a) and were void
under Arna. The court vacated these sentences and remanded to
the trial court for the imposition of five consecutive sentences
in conformity with section 5--8--4(a).
The appellate court did not address O'Neal's convictions for
the lesser included offenses of criminal sexual assault (counts
45, 46, 48, 50) and aggravated unlawful restraint (count 56).
The trial judge had merged these counts into O'Neal's other
convictions.
DISCUSSION
Prior to our discussion of the sentencing issues raised in
this appeal, we address several of defendants' convictions and
sentences that are not contested on the merits by the parties. A
preliminary resolution of these concerns will serve to clarify a
somewhat complicated assortment of indictment counts,
convictions, and sentences.
As a general matter, the State has renewed here its
argument made in the appellate court that defendants have
waived review of any sentencing errors that occurred in the trial
court by failing to file section 5--8--1(c) motions challenging
their sentences. The appellate court agreed with the State and
found that defendants had waived review of any sentencing
issues. Despite this finding of waiver, the court still considered
defendants' sentencing claims because those claims were related
to the propriety of each defendant's convictions. See 281 Ill.
App. 3d at 613. Because the State has not contested the
judgment of the appellate court, we will not review the State's
waiver claim here.
The appellate court did not address defendants' convictions
for the lesser included offenses of criminal sexual assault and
aggravated unlawful restraint (Garcia, counts 45, 56; Wallace,
counts 45 through 52, and 56; O'Neal, counts 45, 46, 48, 50,
56). The trial judge had merged these counts into defendants'
other convictions and did not enter sentences on these counts.
The parties do not raise any issues regarding these convictions.
These convictions are not before us and we do not consider
them.
The appellate court also did not address Wallace's
convictions and sentence for aggravated battery (counts 53, 54).
The trial judge had sentenced Wallace to a five-year concurrent
term of imprisonment for these convictions. The parties do not
raise any issues regarding the aggravated battery counts.
Wallace's aggravated battery convictions are not before us and
we do not consider them.
A person may not be convicted of both the inchoate and the
principal offense. See 720 ILCS 5/8--5 (West 1992); People v.
St. Pierre, 146 Ill. 2d 494, 519 (1992). In the trial court, each
defendant was found guilty and sentenced for the inchoate
offense of conspiracy to commit aggravated criminal sexual
assault as well as the principal offense of aggravated criminal
sexual assault. The appellate court vacated the convictions and
sentences on the conspiracy counts. The parties do not address
the merits of this issue. We affirm the appellate court's finding
that the convictions and sentences for conspiracy imposed on
Garcia (count 41), Wallace (count 41), and O'Neal (count 41)
should be vacated.
The trial judge sentenced Garcia on one count of aggravated
criminal sexual assault based on his accountability for Walter's
penetration of S.B.'s vagina (count 2). However, the State nol-
prossed this count prior to trial. The appellate court vacated the
sentence on count 2. The parties do not address the merits of
this issue. We affirm the appellate court's finding that Garcia's
sentence for aggravated criminal sexual assault based on count
2 should be vacated.
The trial judge found Wallace guilty of one count of armed
violence predicated on aggravated battery even though the State
had nol-prossed this count prior to trial. The appellate court
vacated Wallace's conviction and sentence for armed violence.
The parties do not address the merits of this issue. We affirm
the appellate court's finding that Wallace's conviction and
sentence for armed violence should be vacated (count 44).
Additionally, no evidence was presented at trial
demonstrating that Garcia's or O'Neal's penis penetrated S.B.'s
mouth. The appellate court found that Wallace's convictions for
aggravated criminal sexual assault based on a theory of
accountability for Garcia's and O'Neal's penetration of S.B.'s
mouth were not supported by the evidence. The appellate court
vacated these convictions and their corresponding sentences. The
parties do not address the merits of this issue. We affirm the
appellate court's finding that Wallace's convictions and
sentences for aggravated criminal sexual assault based on the
penetration of S.B.'s mouth by Garcia and O'Neal should be
vacated (counts 5, 8, 13, 16, 25, 26, 31, 32, 37, 40).
The charge of armed robbery against Wallace was nol-
prossed prior to trial (count 43). Notwithstanding this fact, the
trial judge found Wallace not guilty of armed robbery. However,
the judge found Wallace guilty of eight counts of aggravated
criminal sexual assault premised on the aggravating factor that
the sexual assault was committed during an armed robbery. The
appellate court vacated Wallace's convictions and sentences for
aggravated criminal sexual assault premised on armed robbery.
See Riley, 219 Ill. App. 3d at 491. The parties do not address
the merits of this issue. We affirm the appellate court's finding
that Wallace's convictions and corresponding sentences for
aggravated criminal sexual assault premised on armed robbery
should be vacated (counts 33 through 40).
Furthermore, the parties do not take issue with the
proposition that multiple convictions cannot be carved from the
same physical act. See People v. King, 66 Ill. 2d 551, 566
(1977). However, Garcia and O'Neal argue that the appellate
court erred in its application of the one-act, one-crime rule.
They argue that the appellate court improperly determined which
of several convictions for aggravated criminal sexual assault
should be vacated and which convictions should have sentences
entered on them. The State argues that the appellate court
correctly determined which convictions should be vacated and
which should have sentences entered on them.
When multiple convictions of greater and lesser offenses are
obtained for offenses arising from a single act, a sentence
should be imposed on the most serious offense and the
convictions on the less serious offenses should be vacated. See
People v. Cardona, 158 Ill. 2d 403, 411 (1994). However, when
multiple convictions for aggravated criminal sexual assault are
obtained from a single act of penetration, there is no way to
determine the most serious conviction because none of the
convictions involve either a more or less culpable mental state.
See People v. Calva, 256 Ill. App. 3d 865, 870 (1993). In such
cases, reviewing courts have remanded to the trial court for a
determination as to which "counts of aggravated criminal sexual
assault are retained." Segara, 126 Ill. 2d at 78; see also Calva,
256 Ill. App. 3d at 870 (following Segara); People v. Bell, 217
Ill. App. 3d 985, 1012 (1991) (following Segara).
We therefore reverse the appellate court's determinations
regarding which of Garcia's and O'Neal's convictions for
aggravated criminal sexual assault should have sentences entered
on them and which should be vacated. On remand, the judge is
to determine which of Garcia's convictions for aggravated
criminal sexual assault are to have sentences entered on them
for his penetration of S.B.'s vagina (count 1, 9, or 17) and for
his accountability for Wallace's penetration of S.B.'s vagina
(count 11 or 21). The judge is also to determine which of
O'Neal's convictions for aggravated criminal sexual assault are
to have sentences entered on them for his accountability for
Garcia's penetration of S.B.'s vagina (count 9 or 17) and his
accountability for Wallace's penetration of S.B.'s vagina (count
3, 11, or 21). The sentences imposed on Garcia's and O'Neal's
redundant convictions should be vacated.
We note that neither Wallace nor the State take issue with
the application of the one-act, one-crime rule in Wallace's case.
In the appellate court, the court noted that Wallace and the State
concurred that convictions on counts 1, 2, 3, 4, 6, and 7 should
remain while the other 18 counts (counts 9, 10, 11, 12, 14, 15,
17 through 24, and 27 through 30) were to be vacated. Given
Wallace's and the State's concurrence, and the fact that neither
party addresses this point on the merits, we affirm the appellate
court's finding as to Wallace.
Garcia's two convictions for aggravated criminal sexual
assault, Wallace's six convictions for aggravated criminal sexual
assault, and O'Neal's five convictions for aggravated criminal
sexual assault trigger the consecutive sentencing provision of
section 5--8--4(a). See 730 ILCS 5/5--8--4(a) (West 1992).
Defendants do not dispute that section 5--8--4(a) requires this
result. Accordingly, on remand, once the trial judge has
determined which of defendants' convictions for aggravated
criminal sexual assault shall have sentences entered on them, the
judge is directed to enter consecutive sentences on these
convictions in conformity with section 5--8--4(a).
The remaining issues arise from the imposition of
consecutive sentences on remand. In remanding, the appellate
court "allow[ed] the circuit court, in its discretion, either to
increase the total sentence [imposed on a defendant] or to
impose a total sentence equal to the total of the vacated
sentences." 281 Ill. App. 3d at 615. Defendants argue that the
appellate court's remand instructions violate: (1) Supreme Court
Rule 615(b) (134 Ill. 2d R. 615(b)) which describes the powers
of a reviewing court; (2) section 5--8--1(c) of the Unified Code
of Corrections which governs a defendant's motion to reduce a
sentence; (3) the statute on resentencing (730 ILCS 5/5--5--4
(West 1992)); and (4) defendants' federal due process rights.
In this appeal, however, we need not reach these issues.
Because the concurrent sentences imposed on various counts
were imposed in some instances in violation of section 5--8--
4(a) requiring consecutive sentences, those sentences are void.
Arna, 168 Ill. 2d at 112-13. The sentences to be imposed on
those counts on remand, therefore, will not be greater than, less,
or equal to defendants' original sentences. See People v. Roth,
Inc., 412 Ill. 446, 450 (1952) ("a void decree has no legal
effect"); Arna, 168 Ill. 2d at 113 (because order imposing
concurrent terms was void, appellate court not prohibited from
increasing defendant's sentence on review). Thus, defendants'
resentencing arguments based on Rule 615(b), section 5--8--1(c)
of the Unified Code of Corrections, and the statute on
resentencing are inapplicable because they are premised on the
erroneous assumption that there is a valid sentence to increase.
Defendants also argue that an increased sentence on remand
would violate their federal due process rights. Defendants rely
on the prophylactic rule announced in North Carolina v. Pearce,
395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969),
designed to protect a defendant on retrial from the potential
vindictiveness of a resentencing judge. Pearce held that if an
increased sentence is imposed following a retrial, reasons for the
increased sentence must appear on the record and be based on
objective information regarding the defendant's conduct
subsequent to the imposition of the original sentence. Pearce,
395 U.S. at 726, 23 L. Ed. 2d at 670, 89 S. Ct. at 2081.
However, the Supreme Court has explained that "[w]hile the
Pearce opinion appeared on its face to announce a rule of
sweeping dimension, our subsequent cases have made clear that
its presumption of vindictiveness `do[es] not apply in every case
where a convicted defendant receives a higher sentence on
retrial.' " Alabama v. Smith, 490 U.S. 794, 799, 104 L. Ed. 2d 865, 872, 109 S. Ct. 2201, 2204 (1989) (second alteration in
original), quoting Texas v. McCullough, 475 U.S. 134, 138, 89 L. Ed. 2d 104, 110, 106 S. Ct. 976, 978 (1986). Thus, the
Supreme Court has stated that "vindictiveness of a sentencing
judge is the evil the Court sought to prevent rather than simply
enlarged sentences after a new trial." McCullough, 475 U.S. at
138, 89 L. Ed. 2d at 110, 106 S. Ct. at 978.
Defendants argue that the imposition of an increased
sentence on remand would violate Pearce's prophylactic rule.
We do not agree. The Supreme Court has stated that Pearce's
prophylactic rule has been limited in its application to
circumstances in which there is a reasonable likelihood that an
increase in sentence is the product of actual judicial
vindictiveness. See Smith, 490 U.S. at 799, 104 L. Ed. 2d at
872-73, 109 S. Ct. at 2204-05. "Where there is no such
reasonable likelihood, the burden remains upon the defendant to
prove actual vindictiveness." Smith, 490 U.S. at 799, 104 L. Ed. 2d at 873, 109 S. Ct. at 2205.
We believe that the correction of a void sentence under
Arna fails to present circumstances in which there is a
reasonable likelihood that a sentence imposed on remand will be
the product of judicial vindictiveness against a defendant. As a
general rule, defendants will not be raising Arna errors. Instead,
the State and reviewing courts will be the parties pointing to a
trial judge's error. Thus, it is not a defendant who runs the risk
of inciting the potential for judicial vindictiveness.
Of course, as the Supreme Court has noted, "Where the
prophylactic rule of Pearce does not apply, the defendant may
still obtain relief if he can show actual vindictiveness ***."
McCullough, 475 U.S. at 138, 89 L. Ed. 2d at 111, 106 S. Ct. at 979.
CONCLUSION
Based on the foregoing, the appellate court judgment is
affirmed in part and reversed in part. The circuit court judgment
is affirmed in part and reversed in part. These causes (Nos.
81246, 81248, 81274) are remanded to the circuit court. The
circuit court is directed to determine which of defendants'
convictions should have sentences entered on them in
conformity with this opinion. Those convictions upon which no
sentences are entered should be vacated. The circuit court is
directed to sentence defendants consistent with this opinion and
section 5--8--4(a) of the Unified Code of Corrections (730 ILCS
5/5--8--4(a) (West 1992)).
Nos. 81246, 81248, and 81274--
Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed in part
and reversed in part;
causes remanded.
JUSTICE NICKELS, dissenting:
This appeal raises the question of whether the circuit court
may impose consecutive sentences on remand where the circuit
court initially imposed concurrent sentences on certain offenses.
The majority holds that the initial sentences were "void" and
therefore the circuit court may impose consecutive sentences.
This holding allows the circuit court to lengthen the aggregate
sentence for each defendant. Because this holding, in effect,
penalizes defendants for appealing their sentences, I dissent.
In reaching its conclusion, the majority relies heavily on
People v. Arna, 168 Ill. 2d 107 (1995). In Arna, the defendant
was convicted of two counts of attempted first degree murder.
He was sentenced to concurrent terms of 30 and 45 years in
prison, as opposed to consecutive terms. This court held that the
circuit court erred in sentencing and that consecutive sentences
were required. Although the State was not entitled to appeal the
sentencing issue, this court found that the issue was reviewable.
In justifying this action, the Arna majority reasoned that "[a]
sentence which does not conform to a statutory requirement is
void" and is therefore reviewable at any time. Arna, 168 Ill. 2d
at 113.
I dissented in Arna and I still believe Arna was wrongly
decided. See Arna, 168 Ill. 2d at 115-17 (Nickels, J., dissenting).
Supreme Court Rule 604(a) is specific in providing when the
State may appeal in criminal cases. It does not allow the State
to appeal sentencing issues. See 145 Ill. 2d R. 604(a). In the
majority's discussion, the majority notes that "the State and
reviewing courts will be the parties pointing to a trial judge's
error." Slip op. at 16. Because the State may not appeal
sentencing issues, it is also prohibited on a defendant's appeal
from "pointing to" sentencing errors made in the circuit court.
In addition, Rule 615(b) sets forth the powers of a reviewing
court. It does not give a reviewing court the power to increase
a sentence on appeal. See 134 Ill. 2d R. 615(b). In the instant
case, the majority essentially authorizes an increase in
defendants' aggregate sentences.
In addition to requiring consecutive sentences on remand,
the majority finds that, because the original sentences imposed
on the various counts were void, the sentences imposed on
remand "will not be greater than, less, or equal to defendants'
original sentences." Slip op. at 15. The majority apparently
holds that the circuit court may impose a longer sentence for
each individual offense. This is simply incorrect. Section 5--5--4
of the Unified Code of Corrections provides:
"Where a conviction or sentence has been set aside on
direct review or on collateral attack, the court shall not
impose a new sentence for the same offense or for a
different offense based on the same conduct which is
more severe than the prior sentence less the portion of
the prior sentence previously satisfied unless the more
severe sentence is based upon conduct on the part of the
defendant occurring after the original sentencing." 730
ILCS 5/5--5--4 (West 1992).
This statute places a limitation on resentencing. The statute
applies to the instant case because defendants' sentences have
been "set aside" on appeal. Pursuant to the statute, a more
severe sentence can be imposed for each individual offense only
if it is based on conduct that occurs after sentencing.
In their briefs, defendants argue against the imposition of
more severe sentences on remand. They rely extensively on
People v. Kilpatrick, 167 Ill. 2d 439 (1995), and People v.
Jones, 168 Ill. 2d 367 (1995), two recent cases from this court.
Although these cases were discussed in the appellate court and
raised in the briefs to this court, the majority ignores them.
In Kilpatrick, the circuit court imposed consecutive
sentences of six and nine years for two offenses. On
reconsideration, the circuit court determined that consecutive
sentences were not appropriate under the sentencing statute and
vacated the consecutive sentences. It then imposed longer terms
of 15 years for each offense, to be served concurrently. In
Kilpatrick, this court held that this action resulted in an
impermissible increase in sentencing because section 5--8--1(c)
of the Unified Code of Corrections (730 ILCS 5/5--8--1(c)
(West 1992)) prohibited the circuit court from increasing a
sentence after it was imposed. Thus, on reconsideration, the
circuit court could not impose a more severe sentence for each
individual offense. This court employed the same reasoning in
Jones, 168 Ill. 2d 367.
In Kilpatrick and Jones, this court found that section 5--8--
1(c) limited the circuit court's discretion in resentencing after
the defendants filed motions to reconsider in the circuit court.
Similarly, in the instant case, section 5--5--4 limits the circuit
court's discretion in resentencing where a reviewing court has
set aside the original sentences on appeal. It is inconsistent to
hold that a sentence cannot be increased after a motion to
reconsider the sentence but may be increased on resentencing
following an appeal. Given these similar statutory prohibitions
and given the reasoning of Kilpatrick and Jones, the circuit
court cannot impose a more severe sentence on each individual
offense.
The majority fails to address the foregoing statutes and case
law. According to the majority, because the original sentences
were "void," there are no limitations on the circuit court on
remand. The majority holds that the circuit court is free to
impose any sentence for each individual offense, even if it is
greater than the original sentence.
I believe that there is a fundamental inconsistency between
Arna, which the majority relies on in the instant case, and
Kilpatrick and Jones. Under the majority's reasoning, the
defendants' original sentences in Kilpatrick and Jones would
have been just as void as those involved here because there was
no statutory authorization for the original sentences. Under this
reasoning, any time a trial judge does not correctly follow a
sentencing statute and makes an erroneous decision, the sentence
is void. In effect, this reasoning eliminates many of the statutory
protections and rules that safeguard defendants on resentencing.
Such a result raises grave due process concerns.
In my view, the best solution is to recognize that Arna was
wrongly decided and to overrule it. In the instant case, the
circuit court may have applied the sentencing statute incorrectly,
but this error does not make its determination "void." Sentences
were imposed for each defendant. They appealed their
convictions and sentences and were partially successful in their
appeals. On remand, however, they may suffer the consequences
of longer sentences as a result of pursuing their right to appeal.
Given such consequences, defendants in future cases will
face a difficult choice. They may choose to appeal in the belief
that they have meritorious legal arguments requiring reversal. It
may be wiser, however, to forgo an appeal because defendants
will subject themselves to the risk of increased punishment by
appealing. Certainly, such a scenario will have a chilling effect
on every defendant's right to appeal and clearly flies in the face
of Rule 615(b) and section 5--5--4 of the Unified Code of
Corrections. Defendants should not be required to make such a
choice. For the foregoing reasons, I dissent.
JUSTICES HARRISON and McMORROW join in this
dissent.
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