People v. Hicks

Annotate this Case
People v. Hicks, No. 82979 (3/26/98)

Docket No. 82979--Agenda 7--November 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOEY
HICKS, Appellant.
Opinion filed March 26, 1998.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Joey Hicks, was charged by indictment with two counts of
home invasion. 720 ILCS 5/12--11 (West 1992). Following a jury trial,
defendant was found guilty on both counts and sentenced to a single six-
year term of imprisonment. The appellate court affirmed defendant's
conviction and remanded the cause to the trial court for the entry of an
additional sentence because the trial court failed to sentence defendant on
the second conviction. 286 Ill. App. 3d 588. We granted defendant's
petition for leave to appeal (166 Ill. 2d R. 315), and now reverse the
decision of the appellate court.

BACKGROUND
The details which led to defendant's arrest and conviction are fully set
forth in the appellate court's opinion. See 286 Ill. App. 3d 588. However,
we will summarize the relevant facts necessary to dispose of the issue
presented. According to trial testimony, defendant and a friend, John
Davis, pursued Michael Stewart, who had allegedly just stolen a necklace
from defendant's girlfriend, Donna Hedge. Stewart rode his bike to the
home of a friend, David Edmonds, entered the house, and locked the door.
Defendant, Davis, and Hedge, having followed Stewart, demanded that
Stewart come out of the house. When Stewart refused to come out,
defendant and Davis began kicking and pushing on the door, eventually
forcing their way inside. Once inside, Edmonds asked defendant and Davis
to leave. Defendant then threw Stewart into a bedroom and battered him
while Davis battered Edmonds in the next room.
Subsequent to his arrest, defendant was charged with two counts of
home invasion. Both counts were based on his unauthorized entry into
Edmonds' home. Count I of the indictment was based on Davis' infliction
of injuries on Edmonds, and count II was based on defendant's infliction
of injuries on Stewart.
The jury found defendant guilty of both counts of home invasion and
the trial judge entered judgments on the convictions. The trial judge
sentenced defendant to a single six-year term of imprisonment. However,
the trial court did not specify for which count the sentence was being
imposed. On appeal, the appellate court affirmed both convictions and
remanded the cause for the imposition of an additional sentence because
there were two convictions but only one sentence. 286 Ill. App. 3d at 596.
One justice dissented, however, stating that only one conviction for home
invasion should stand because defendant's and Davis' conduct constituted
only one entry for the purpose of the home invasion statute. 286 Ill. App.
3d at 596-97 (Geiger, P.J., concurring in part and dissenting in part).

ANALYSIS
The sole question presented for review in this case is whether
defendant can be convicted of two counts of home invasion where one
count was based on his own entry and the other count was based on his
accomplice's simultaneous entry into the home. For the reasons expressed
below, we hold that defendant can be convicted of only one entry and,
therefore, one count of his home invasion conviction must be vacated.
We note that, initially, the State argues that defendant has waived this
issue for review because he failed to object at trial and to include this
issue in his post-trial motion. Issues not raised at trial and not presented
in a written post-trial motion are ordinarily deemed waived on review.
People v. Enoch, 122 Ill. 2d 176 (1988). However, issues concerning
substantial rights may be considered by a reviewing court even if not
properly preserved in the trial court. 134 Ill. 2d R. 615(a); People v.
Brandon, 162 Ill. 2d 450, 457-58 (1994). The imposition of an
unauthorized sentence affects substantial rights. See People v. Brown, 197
Ill. App. 3d 907 (1990). Furthermore, we note that the waiver rule is a rule
of administrative convenience rather than jurisdiction, and the goals of
obtaining a just result and maintaining a sound body of precedent may
sometimes override considerations of waiver. People v. Farmer, 165 Ill. 2d 194, 200 (1995). Consequently, we will address the merits of
defendant's claim.
Simply put, the defendant asks that we answer the following question:
When two or more individuals simultaneously enter a residence, how many
unlawful entries are there within the meaning of the home invasion statute?
The elements of home invasion include: (1) an unauthorized entry into the
dwelling of another where the defendant knows or has reason to know that
one or more persons is present; and (2) defendant intentionally causes
injury or while armed with a dangerous weapon, defendant uses or
threatens force upon any persons within the dwelling. See 720 ILCS 5/5--2
(West 1992).
The appellate court in this case held that defendant's convictions for
home invasion must stand because "[d]efendant and Davis each committed
a home invasion; each of them entered a dwelling and caused injury to a
person within the dwelling. Defendant was convicted of one count of home
invasion based on his attack on Stewart and another count based on his
accountability for Davis' attack on Edmonds." 286 Ill. App. 3d at 595. The
court concluded that both of defendant's convictions were based on two
different entries, and thus the one act, one crime rule was not implicated.
286 Ill. App. 3d at 596.
We note that the First District of the appellate court in People v.
Brown, 197 Ill. App. 3d 907 (1990), has decided the same issue as is
presented in the case sub judice. In Brown, the defendant was a guest in
the victim's home when defendant allowed two men to enter into the
victim's apartment in order to rob the victim. Defendant was charged and
convicted of two counts of home invasion based on her accomplices'
unauthorized entries into the victim's home. The State argued that the
incident involved separate actions performed by two different offenders,
and that defendant must be held accountable for the actions of both men.
The appellate court disagreed, noting that the home invasion statute had
been interpreted to reflect the legislative intent to impose only one count
of home invasion for one unlawful entry of one dwelling. Specifically, the
court stated:
"Accordingly, had each of the men involved in the incident in the
present case been charged, tried and convicted, each man would
only have been convicted of one count of home invasion since each
man made only one unlawful entry into the apartment. The State
argues that defendant can be convicted on a separate count for each
man. We disagree. Accountability is a legal theory whereby a
defendant is held responsible for a crime which he personally did
not commit, but which was committed by his accomplice. (People
v. Skiles (1983), 115 Ill. App. 3d 816, 825, 450 N.E.2d 1212.) If the
law places upon the accountable defendant all the liabilities arising
from the acts of the accomplice, the law should also afford the
accountable defendant the protections which would be afforded the
accomplice, since the accountable defendant stands in the shoes of
the accomplice. (People v. Skiles, 115 Ill. App. 3d at 826.) In
People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, the supreme
court prohibited multiple convictions where more than one offense
was carved from the same physical act. Because each of defendant's
accomplices in the instant case made only one unlawful entry into
complainant's apartment, each could have been convicted of only
one count of home invasion. Recognizing that defendant has the
same protections provided under People v. King, (66 Ill. 2d 551, 363
N.E.2d 838) as do her accomplices, defendant cannot be convicted
of two counts of home invasion." Brown, 197 Ill. App. 3d at 919.
The appellate court in this case expressly declined to follow Brown
because it was based on "flawed reasoning and incorrect assumptions." 286
Ill. App. 3d at 596. The court stated that in Brown, as in the case sub
judice, each entrant could have been convicted of one count of home
invasion based on his own entry and an additional count based on his
accountability for the other person's entry. We disagree.
The accountability statute states in relevant part:
"A person is responsible for conduct which is an element of an
offense if the conduct is either that of the person himself, or that of
another and he is legally accountable for such conduct as provided
in Section 5--2, or both." 720 ILCS 5/5--1 (West 1992).
"A person is legally accountable for the conduct of another
when:
* * *
(c) Either before or during the commission of an offense, and
with the intent to promote or facilitate such commission, he solicits,
aids, abets, agrees or attempts to aid, such other person in the
planning or commission of the offense." 720 ILCS 5/5--2 (West
1992).
A charge based on accountability must necessarily flow from the
principal crime at issue. People v. Stanciel, 153 Ill. 2d 218, 233 (1992).
Accountability is not in and of itself a crime. Rather, the statute is a
mechanism through which a criminal conviction may be reached. Stanciel,
153 Ill. 2d at 233. In essence, accountability provides an alternative basis
of liability, not an additional basis for liability. Once a defendant's guilt
as a principal has been established through his own conduct or behavior,
there is no longer any need to base a conviction for the same crime on the
doctrine of accountability. We do not believe that the legislature intended
to convict a defendant as a principal and an accomplice for the same
crime. Therefore, we affirm the holding and reasoning set forth in Brown.
This court had the opportunity to interpret the home invasion statute
regarding a similar issue in People v. Cole, 172 Ill. 2d 85 (1996). In Cole,
the defendant was charged and convicted of two counts of home invasion,
both stemming from his entry into one of the victims' home. One count of
home invasion was based on the infliction of injuries on one victim and
an additional count was based on the infliction of injuries on a second
victim. We held that the home invasion statute will support only a single
conviction, regardless of the number of persons present or harmed. See
People v. Sims, 167 Ill. 2d 483 (1995); see also People v. Ammons, 120 Ill.
App. 3d 855 (1983); People v. Parker, 166 Ill. App. 3d 123 (1988); People
v. Yarbrough, 156 Ill. App. 3d 643 (1987); People v. Smith, 275 Ill. App.
3d 207 (1995); People v. Criss, 169 Ill. App. 3d 926 (1988); People v.
Triplett, 138 Ill. App. 3d 1070 (1985).
It is evident that under the reasoning in Cole, defendant here could
only be convicted of one count of home invasion, although there were two
persons present in the home. The appellate court in the instant case,
however, declared that the rule set forth in Cole does not apply to
defendant because he and Davis both entered the residence; each entry was
a separate and distinct entry. In Cole, there was only one assailant, thus
one entry. 286 Ill. App. 3d at 595.
We do not believe that rule set forth in Cole was intended to be read
so narrowly. In fact, we have held that only one conviction can stand for
one entry even where there have been multiple defendants. For example,
in People v. Sims, 167 Ill. 2d 483 (1995), the defendants were convicted
of two counts of home invasion. The defendant and codefendant entered
a dwelling, where the defendant knocked one victim unconscious with a
brick. The codefendant stabbed another victim and then stabbed the
unconscious victim. Defendant's convictions were based on his entry and
his threatened use of force against each victim. The State conceded that
one of defendant's home invasion convictions must be vacated because the
evidence had proved only one illegal entry. Although Sims couched its
holding in terms of the rule barring multiple counts for multiple victims,
we believe the holding implies that multiple counts are equally barred
where there are multiple entrants. Otherwise, each defendant in Sims would
have been accountable for his own and the other's entry, and the two home
invasion convictions would have been sustained. See Ammons, 120 Ill.
App. 3d at 861; Criss, 169 Ill. App. 3d at 931-32; Triplett, 138 Ill. App.
3d at 1074.
The State argues that permitting additional convictions based on
additional separate entries into a home is appropriate because the potential
for danger increases as the number of assailants increase. However, the
State ignores the purpose of the home invasion statute, which is to protect
the safety of persons in their homes. If the number of persons present in
a home does not increase the number of convictions, we do not believe
that the number of entrants into a home provides a valid basis for
increasing the number of convictions. Accordingly, we hold that the
defendant in the instant case can only be convicted of one count of home
invasion based on his own entry into Edmonds' home. Because defendant
can only be convicted for his own entry into the home, his multiple
convictions also violated the one-act, one-crime rule set forth in King.
For the foregoing reasons, we vacate one of defendant's home invasion
convictions and reverse the judgment of the appellate court. In view of the
fact that six years is the minimum sentence for the offense of home
invasion (see 720 ILCS 5/12--11(c) (West 1992); 730 ILCS 5/5--8--1(a)(3)
(West 1992)), we find it unnecessary to remand this cause for
resentencing.

Appellate court judgment reversed;
circuit court judgment affirmed
in part and reversed in part.


JUSTICE BILANDIC, dissenting:
The only issue in this appeal is whether defendant's two convictions
for home invasion can stand. I would hold that they can.
The State's evidence showed that defendant and his accomplice forced
their way inside a home. Once inside, defendant beat a person named
Stewart while the accomplice beat another person named Edmonds. The
jury convicted defendant of one count of home invasion for his entry and
beating of Stewart. The jury also convicted defendant of a second count
of home invasion based on his accountability for his accomplice's entry
and beating of Edmonds.
As the majority correctly notes, the offense of home invasion includes
the following elements: (1) an unauthorized entry into the dwelling of
another where the defendant knows or has reason to know that one or
more persons is present; and (2) the defendant intentionally causes injury
or, while armed with a dangerous weapon, the defendant uses or threatens
force upon any persons within the dwelling. The facts of the present case
warrant two convictions for home invasion. Defendant is responsible for
his own unlawful entry and his beating of Stewart. Defendant is also
legally responsible for his accomplice's unlawful entry and beating of
Edmonds. The one act, one crime rule is not implicated under these
circumstances because the two offenses are carved from wholly different
physical acts. See People v. King, 66 Ill. 2d 551, 566 (1977) (holding that
no more than one offense can be carved from the same physical act).
The majority relies upon People v. Cole, 172 Ill. 2d 85 (1996), and
People v. Sims, 167 Ill. 2d 483 (1995), in support of its conclusion that
defendant's second conviction for home invasion is prohibited. Those
cases, however, are distinguishable from the present case.
Cole established the rule that where one defendant unlawfully enters
a home and intentionally causes injury to two or more persons inside the
home, that defendant has committed only one act of home invasion
because there was only one entry. Cole, 172 Ill. 2d at 101-02. In Cole,
there was only one defendant and, thus, only one entry. The Cole rule has
no application here, where there was more than one entry. Defendant was
convicted of one count of home invasion for his illegal entry and beating
of Stewart. He was convicted of his second count of home invasion based
upon his accountability for his accomplice's illegal entry and beating of
Edmonds.
The majority's reliance on Sims is also unavailing. In Sims, the
defendant and his accomplice unlawfully entered a home and, once inside,
two deaths resulted. Sims, 167 Ill. 2d at 491, 523. Although the facts in
Sims may be considered similar to the facts of this case, Sims is inapposite
nonetheless. On appeal in Sims the defendant argued that one of his two
home invasion convictions must be vacated because the evidence had
proved only one illegal entry into the dwelling. Sims, 167 Ill. 2d at 522-23.
He contended that " `a defendant can stand convicted of only one count of
home invasion where there was only one entry regardless of the number
of victims.' " Sims, 167 Ill. 2d at 523, quoting People v. McDarrah, 175
Ill. App. 3d 284, 300 (1988). The State conceded error on this point, and
this court vacated one count of home invasion. Sims, 167 Ill. 2d at 523. In
Sims, however, there is no indication that the parties raised or that this
court considered the issue of whether there could be two separate entries
based on an accomplice liability theory. Unlike in Sims, the jury in the
case at bar was given clear instructions and argument regarding
defendant's accountability for the criminal actions of his accomplice. The
issue in this case thus goes beyond the scope of the issue set forth in Sims.
Therefore, Sims does not support the majority's holding.
For the reasons stated above, defendant's two convictions for home
invasion are proper. The appellate court's judgment should be affirmed.

JUSTICE HARRISON joins in this dissent.