No. 3--06--0605
_________________________________________________________________
Filed September 30, 2008-CORRECTION
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 06--CF--47
)
HERSHEL MORGAN, ) Honorable
) J. Peter Ault,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
_________________________________________________________________
Pursuant to a fully negotiated plea agreement, the trial
court found the defendant, Hershel Morgan, guilty of, among other
things, four counts of home invasion (720 ILCS 5/12--11(a) (West
2004)). The court sentenced the defendant to four concurrent 30-
year prison terms for these offenses. On appeal, the defendant
argues that three of his home invasion convictions and sentences
should be vacated under one-act, one-crime principles. We agree,
and accordingly, we vacate three of the defendant's convictions
and sentences for home invasion.
I. BACKGROUND
The State charged the defendant with having committed seven
offenses on December 20, 2005. The State alleged that the
defendant committed four counts of home invasion by entering a
residence in Tazewell County and: (1) threatening K. M. with a
knife; (2) threatening Corey Buhs with a knife; (3) committing
aggravated criminal sexual assault against K. M. by placing his
penis in her mouth; and (4) committing aggravated criminal sexual
assault against K. M. by placing his penis in her vagina. He was
also charged with having committed two counts of aggravated
criminal sexual assault, as described above. Additionally, the
State submitted that the defendant committed a residential
burglary during the incident.
The defendant agreed to plead guilty to these seven offenses
in exchange for the State: (1) recommending specific sentences;
(2) agreeing not to charge the defendant for other offenses in
Tazewell County that were under investigation; and (3) dismissing
a felony charge in Peoria County. After the State presented the
factual basis for the seven counts, the court accepted the
defendant's guilty plea and the terms of the negotiated
agreement. The court sentenced the defendant to: (1) two
consecutive 22½-year prison terms for the sexual assault
offenses; (2) four concurrent 30-year prison terms for the home
invasion offenses; and (3) 15 years of imprisonment for the
burglary offense. The sentences for the home invasion and
burglary offenses were to run concurrently both with each other
and with the two consecutive sentences.
2
The defendant filed a timely motion to withdraw the guilty
plea in which he did not specifically argue that three of his
home invasion convictions and sentences should be vacated under
one-act, one-crime principles. During the hearing on the motion,
the defendant also did not explicitly raise this argument. The
trial court denied the motion, and the defendant appealed.
II. ANALYSIS
A. One-act, One-crime
The defendant contends that we should vacate three of his
home invasion convictions and sentences under one-act, one-crime
principles, pursuant to which more than one offense may not be
carved out of a single physical act. See People v. King, 66 Ill.
2d 551, 363 N.E.2d 838 (1977). The Illinois Supreme Court has
repeatedly held that, under one-act, one-crime principles, the
home invasion statute will support only a single conviction for a
single entry to a residence, regardless of the number of persons
present or the number of persons harmed by the defendant. See
People v. Hicks, 181 Ill. 2d 541, 693 N.E.2d 373 (1998); People
v. Cole, 172 Ill. 2d 85, 665 N.E.2d 1275 (1996); People v. Sims,
167 Ill. 2d 483, 658 N.E.2d 413 (1995). In other words,
according to our supreme court, the home invasion statute (720
ILCS 5/12--11(a) (West 2004)) does not authorize multiple
convictions for a single entry to a home.
3
The State does not challenge the fact that this is the law
of Illinois, and does not deny that the defendant only made a
single entry to the residence. Rather, the State questions our
authority to correct the error of the defendant's multiple
convictions on appeal. The State submits that the defendant has
forfeited or waived this argument both by: (1) failing to raise
it in the trial court; and (2) pleading guilty to the offenses.
B. Forfeiture or Waiver
1. Failure to Raise the Issue in the Trial Court
In the instant case, the defendant did not argue in the
trial court that three of his home invasion convictions should be
vacated under one-act, one-crime principles. We will consider
whether we may reach the defendant's argument despite his failure
to raise it with the trial court. Generally, a defendant's
argument is forfeited on appeal if it was not raised in the trial
court. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988).
In this case, the defendant failed to raise his one-act, one-
crime argument in the trial court. Therefore, it is forfeited on
appeal.
Although the defendant's one-act, one-crime issue is
forfeited, plain errors affecting substantial rights may be
reviewed by an appellate court despite forfeiture. 134 Ill. 2d
R. 615(a). The plain error doctrine allows a reviewing court to
consider errors affecting a defendant's substantial rights if
4
either: (1) the evidence was closely balanced; or (2) the error
was so serious that it affects the integrity of the judicial
process. People v. Herron, 215 Ill. 2d 167, 830 N.E.2d
467 (2005).
In the instant case, our consideration of the closeness of
the evidence is inapplicable because the defendant was convicted
following a guilty plea. Because the defendant's convictions
resulted from a plea proceeding rather than a trial, the State
offered a factual basis for the plea rather than evidence per se.
However, we will analyze whether the erroneous imposition of
multiple home invasion convictions was so serious that it may
affect the integrity of the judicial process. See Herron, 215
Ill. 2d 167, 830 N.E.2d 467.
In Hicks, 181 Ill. 2d at 545,693;N.E.2d at 375,the Illinois
Supreme Court ruled that the question whether the defendant could
be convicted of two home invasions, overcame waiver (forfeiture)
under the goals of obtaining a just result and maintaining a
sound body of precedent. Likewise, in People v. Lee, 213 Ill. 2d
218,226,821 N.E.2d 307,312 (2004), our supreme court stated that
the defendant's one-act, one-crime argument was not barred on
appeal by failing to raise it in the trial court. Citing People
v. Harvey, 211 Ill. 2d 368, 813 N.E.2d 181 (2004), the Lee court
said that a one-act, one-crime violation affects the integrity of
the judicial process and, therefore, invokes the plain error
5
rule. See Lee, 213 Ill. 2d at 226, 821 N.E.2d at 312. In this
case, under Hicks, Harvey, and Lee, we are authorized to consider
the defendant's one-act, one-crime argument for plain error.
Additionally, we may analyze the defendant's one-act, one-
crime argument for plain error because it implicates
constitutional double jeopardy principles. The double jeopardy
clause of the United States Constitution provides that no person
shall "be subject for the same offence to be twice put in
jeopardy of life or limb" and is applicable to the states through
the fourteenth amendment. U.S. Const., amends. V, XIV. The
Illinois Constitution similarly states that "[n]o person shall
*** be twice put in jeopardy for the same offense." Ill. Const.
1970, art. I, §10.
The constitutional prohibition against double jeopardy bars
three specific governmental actions, which are: (1) prosecution
for the identical offense after an acquittal; (2) prosecution for
the identical offense after a conviction; and (3) the imposition
of more than one punishment for the same offense. People v.
Gray, 214 Ill. 2d 1, 6, 823 N.E.2d 555,558 (2005). The one-act,
one-crime rule is used to enforce the third prohibition of double
jeopardy, which is that a person should not suffer multiple
punishments for the same act. People v. Price, 369 Ill. App. 3d
395,404, 867 N.E.2d 972,980 (2006). Therefore, the defendant's
one-act, one-crime issue is a type of double jeopardy argument.
6
"[T]he seriousness of a double jeopardy issue and the
[intimate] relationship of the issue to the integrity and
fairness of judicial proceedings warrant considering the issue as
plain error." People v. Billops, 125 Ill. App. 3d 483, 485, 466
N.E.2d 304, 306 (1984), quoting People v. Valentine, 122 Ill.
App. 3d 782, 784, 461 N.E.2d 1388, 1389 (1984).1 Therefore,
based on Billops, we may reach the defendant's one-act, one-crime
issue, as a form of double jeopardy argument, under the second
aspect of the plain error doctrine.
Additionally, we note that the concurrent sentences for the
defendant's four home invasion convictions raise double jeopardy
considerations. Even though the defendant would not serve
additional prison time for his three excess convictions, such
additional sentences are forbidden because of their potential for
adverse collateral consequences. See Rutledge v. United States,
517 U.S. 292, 302, 134 L. Ed. 2d 419,429; 116 S. Ct. 1241, 1248
(1996). These consequences may include: (1) the defendant's
eligibility for parole; (2) an increased sentence under a
recidivist statute for a future offense; (3) impeachment of the
1
We note that Valentine was overruled by Price, 369 Ill.
App. 3d 395, 867 N.E.2d 972, on other grounds. However, Billops
has not been overturned. We also observe that the Billops court
misquoted Valentine by substituting the word "infinite" for the
word "intimate."
7
defendant's testimony in a future trial; and (4) the societal
stigma accompanying any criminal conviction. Ball v. United
States, 470 U.S. 856, 84 L. Ed. 2d 740, 105 S. Ct. 1668 (1985).
Additionally, the excess sentences may affect the setting of
bond, if the defendant has a future encounter with the criminal
justice system. People v. Davis, 156 Ill. 2d 149, 160, 619
N.E.2d 750, 756 (1993). Thus, we also should consider the
defendant's one-act, one-crime argument because, under double
jeopardy principles, there are potential adverse collateral
consequences to his excess concurrent convictions. Such
potential adverse collateral consequences certainly concern the
integrity of the judicial process and, therefore, implicate the
plain error rule.
2. Guilty Plea
The State contends that the defendant has waived or
forfeited his one-act, one-crime argument by entering a guilty
plea. The State cites People v. Jackson, 199 Ill. 2d 286, 769
N.E.2d 21 (2002), for the proposition that when a defendant
voluntarily pleads guilty, he waives all nonjurisdictional errors
or irregularities. We would note, however, that it has been
said, "[u]nless there is plain error, a voluntary guilty plea
waives all non-jurisdictional errors including violations of
constitutional rights[.]" Billops, 125 Ill. App. 3d at 484, 466
8
N.E.2d at 305. In this case, we have found plain error
implicated.
As a preliminary matter, we note that in People v. Blair,
215 Ill. 2d 427, 443, 831 N.E.2d 604, 615 (2005), the Illinois
Supreme Court observed that Illinois law has tended to use the
terms "waiver" and "forfeiture" interchangeably. The Blair
court, however, pointed out important distinctions between these
two terms, when used correctly. "Waiver" means the voluntary
relinquishment of a known right. Blair, 215 Ill. 2d at 444, FN2,
831 N.E.2d at 615 FN2. "Forfeiture" is defined as the failure to
raise an issue in a timely manner, thereby barring its
consideration on appeal. Blair, 215 Ill. 2d 427,444, 831 N.E.2d
604, 615.
In People v. Townsell, 209 Ill. 2d 543, 547-548, 809 N.E.2d
103, 105 (2004), our supreme court explained that by pleading
guilty, a defendant "waives" nonjurisdictional errors, in the
sense of voluntarily relinquishing known rights. The Townsell
court emphasized that the term "waiver," as used in cases
regarding Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a))
concerning plain error, has nothing to do with the voluntary
relinquishment of known rights. To the contrary, according to
the Townsell court, the term "waiver," as applied to Rule 615(a),
concerns failure to bring an issue to the attention of the trial
court. Although the Townsell court did not explicitly say so,
9
the term "waiver," in the plain error context, actually means
"forfeiture."
The Townsell court, therefore, noted that the "waiver"
referred to in Jackson, regarding guilty pleas, concerned the
voluntary relinquishment of a known right rather than the failure
to raise an issue in the trial court. Townsell, 209 Ill. 2d at
547, 809 N.E.2d at 105. The courts in both Townsell and Jackson
ruled that the defendants voluntarily relinquished a known due
process right concerning an Apprendi sentencing issue by pleading
guilty.
However, we cannot assume the present defendant voluntarily
and knowingly pled guilty to improper excess convictions, without
something in the record suggesting that he voluntarily
relinquished a known right by agreeing to these impermissible
excess convictions. Therefore, we cannot say that the defendant
"waived" his one-act, one-crime argument by pleading guilty.
The State also cites People v. Peeples, 155 Ill. 2d 422, 616
N.E.2d 294 (1993), for the proposition that a constitutional
right, like any other right of a defendant, may be waived.
Again, we note that the term "waived," as used in Peeples,
concerns the voluntary relinquishment of a known right. In
Peeples, the court ruled that the defendant voluntarily
relinquished his known right to a fair and impartial jury
10
concerning a Batson issue by pleading guilty. Thus, Peeples is
inapplicable to the present case for the same reason that
Jackson is inapposite.
Additionally, the State contends that the defendant is
estopped from making his current argument under the contract
theory of plea agreements announced by the Illinois Supreme Court
in People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996).
However, we find Evans to be procedurally and factually
distinguishable from the present case. In Evans, the defendants
were convicted and sentenced pursuant to negotiated pleas. They
then filed motions to reduce their sentences. Using contract
analysis, the Evans court held that defendants who enter into
negotiated pleas must move to withdraw their guilty pleas, rather
than move to reduce their sentences. In this case, the defendant
did not negotiate a plea and then seek to reduce his sentence.
On the contrary, the State negotiated a plea with the defendant,
which included improper excess home invasion convictions.
Arguably, these negotiations violated contract principles of good
faith and fair dealing, absent a showing in the record that the
defendant knew the three convictions at issue would be
impermissible excess convictions. But, whatever the situation,
in the instant case, the defendant properly preserved his right
to appeal by filing a motion to withdraw the guilty plea, rather
than a motion to reduce the sentence. Therefore, because the
11
present case is procedurally and factually distinguishable from
Evans, we find the contract analysis of Evans to be inapplicable.
C. Summary
The State does not contest that three of the defendant's
convictions for home invasion violate one-act, one-crime
principles because the defendant made a single entry to the
residence. Instead, the State argues that we may not reach this
issue on appeal. Neither party argues that the matter should be
remanded. We hold that we may consider the question on review,
for the reasons stated above, and consequently vacate three of
the defendant's home invasion convictions. See Hicks, 181 Ill.
2d 541, 693 N.E.2d 373; Cole, 172 Ill. 2d 85, 665 N.E.2d 1275;
Sims, 167 Ill. 2d 483, 658 N.E.2d 413.
III. CONCLUSION
For the foregoing reasons, we vacate three of the
defendant's convictions and sentences for home invasion imposed
by the Tazewell County circuit court.
Vacated in part.
O’BRIEN, J. concurring and MCDADE, P. J. specially
concurring.
No. 3--06--0605
_________________________________________________________________
Filed September 30, 2008 CORRECTION
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 06--CF--47
)
HERSHEL MORGAN, ) Honorable
) J. Peter Ault,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
PRESIDING JUSTICE McDADE, specially concurring:
_________________________________________________________________
The majority has vacated three of defendant’s four convictions for home invasion based
on one-act, one-crime principles. I agree that those convictions must be vacated and I, therefore,
concur in the judgment.
13
The difficulty in this case has not been deciding whether three of the convictions and the
sentences imposed for them were proper – it is clear that they were not. Rather, the difficulty has
been how to overcome principles of waiver and forfeiture which the State has raised to forestall
our correction of this clear error.
The majority has utilized a complex analysis involving plain error and violation of the
constitutional principles of double jeopardy to conclude that the imposition of these sentences
reflects so significantly on the integrity of our judicial system that they cannot be allowed to
stand. I am in fundamental agreement with that analysis, although I am troubled by the reliance
on double jeopardy inasmuch as it has not been raised by the parties either in the circuit court or
in this appeal.
I write separately because I believe the supreme court has articulated an analytical basis
for finding additional convictions, such as the three at issue in this case, to be void and therefore
appealable without consideration of waiver, forfeiture or guilty plea. I hope to persuade the court
to take that step.
Generally, a defendant's argument is forfeited on appeal if it was not raised in the trial
court. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). However, a judgment that was
not authorized by statute is void, and a defendant may challenge it at any time, even where the
judgment was imposed as part of a negotiated plea. People v. Brown, 225 Ill. 2d 188, 199, 866
N.E.2d 1163, 1169 (2007); People v. Palmer, 218 Ill. 2d 148, 154, 843 N.E.2d (2006)2.
2
I acknowledge that neither Brown nor Palmer dealt with convictions for home invasion,
and they do not provide specific authority that convictions of more than one count of home
invasion premised on a single entry would be void. Brown concerns reliance on a statute found
unconstitutional for violation of the single subject rule of legislative enactments. Palmer raised
the question of whether a sentence not allowed by the relevant sentencing statute is void and thus
14
Under one-act, one-crime principles, more than one offense may not be carved out of a
single physical act. People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). The Illinois Supreme
Court has repeatedly held that, under such principles, the home invasion statute will support only
a single conviction for a single entry to a residence, regardless of the number of persons present
or the number of persons harmed by the defendant. See People v. Hicks, 181 Ill. 2d 541, 693
N.E.2d 373 (1998); People v. Cole, 172 Ill. 2d 85, 101-02, 665 N.E.2d 1275, 1282-83 (1996);
People v. Sims, 167 Ill. 2d 483, 658 N.E.2d 413 (1995). In Cole, the supreme court cited with
approval six appellate court cases concluding that ?the home invasion statute will support only a
single conviction in the circumstances shown here. See, e.g., People v. Palacio, 240 Ill. App. 3d
1078, 1088-89, [607 N.E.2d 1375] (1993); People v. McDarrah, 175 Ill. App. 3d 284, [529
N.E.2d 808] (1988); People v. Parker, 166 Ill. App. 3d 123, [519 N.E.2d 703] (1988); People v.
Yarbrough, 156 Ill. App. 3d 643, [509 N.E.2d 747] (1987); People v. Morrison, 137 Ill. App. 3d
171, 177-78, [484 N.E.2d 329] (1985); People v. Ammons, 120 Ill. App. 3d 855, [458 N.E.2d
1031] (1983).” Cole, 172 Ill. 2d at 101-02.
The Cole court stated:
?The rationale for this view is found in the legislature’s description
of the elements of the offense: the home invasion statute speaks of
a defendant’s entry of, or presence in, a dwelling when the
defendant knows or has reason to know ‘that one or more persons
not subject to forfeiture by the defendant. I rely on Brown and Palmer for their articulation of the
general principle that judgments entered without statutory authority are void and a challenge to
such judgments is not waived but can be raised at any time even when the conviction/sentence
results from a guilty plea.
15
is present’ and, further, of the defendant’s use or threat of force
while armed ‘upon any person or persons’ in the dwelling, and of
the defendant’s intentional injury of ‘any person or persons’ in the
dwelling. 720 ILCS 5/12/-11 (West 1992). These references to
one or more persons in the dwelling signify that a single entry will
support only a single conviction, regardless of the number of
occupants. We find this reasoning persuasive, and we agree with
the defendant that he cannot be convicted of more than one count
of home invasion in this case. Accordingly, we must vacate one of
the convictions and sentences for that offense.” Cole, 172 Ill. 2d at
102, 665 N.E. 2d at 1283.
In other words, under the above rulings, the statute does not authorize multiple convictions for
home invasion under such circumstances. I think it fair to restate those rulings as holding that
more than one conviction for home invasion when there has been but a single entry is without
statutory authority.3
Thus, I believe that because the home invasion statute does not authorize multiple
convictions for a single entry to a residence, the surplus convictions are without statutory
authority and should be deemed void.4 Void convictions may be challenged at any time, even
3
Despite the clarity of these holdings, prosecutors continue to seek – either by multiple
count complaints or indictments or through plea negotiations – and courts continue to impose
multiple convictions and sentences for single-entry home invasion.
4
I believe that, because home invasion is a creation of statute, there is also no alternate
source of authority for the imposition of multiple convictions based on a single entry.
16
where the convictions were imposed as part of a negotiated plea.5 See Brown, 225 Ill. 2d 188,
866 N.E.2d 1163. Furthermore, sentences that were imposed without statutory authority are void
and are not subject to a defendant's forfeiture. People v. Palmer, 218 Ill. 2d 148, 154, 843 N.E.2d
292 (2006). Whether a judgment is void is a question of law, which we review de novo. People
v. Rodriguez, 355 Ill. App. 3d 290, 823 N.E.2d 224 (2005).
In this case, the defendant was convicted of and sentenced for four counts of home
invasion based on a single entry to a residence. Under one-act, one-crime principles, the
defendant could only be convicted of and sentenced for one count of home invasion. Three of
the defendant's convictions and sentences for home invasion were thus void because our supreme
court has found in multiple cases cited above (Hicks, Cole, and Sims) that they were not
authorized by statute. Because these judgments of conviction and sentences were void, they
could be challenged by the defendant at any time, regardless of the fact that the judgments were
imposed as part of a negotiated plea. See Palmer, 218 Ill. 2d 148, 843 N.E.2d 292; Brown, 225
Ill. 2d 188, 866 N.E.2d 1163.
The State cites People v. Jackson, 199 Ill. 2d 286, 769 N.E.2d 21 (2002), for the
proposition that when a defendant voluntarily pleads guilty, he forfeits all nonjurisdictional errors
or irregularities. While the instant defendant's argument does not concern a jurisdictional error or
irregularity, I believe the Illinois Supreme Court's more recent pronouncement in Brown renders
Jackson inapposite to the instant case. Furthermore, a judgment deemed void because it is
unauthorized by statute is analogous to a judgment that is void because the trial court issued it
5
As importantly, when the statute provides no authority for more than one conviction, it
would seem that the State cannot offer and the court cannot accept a plea which includes the
unauthorized punishment, and that the plea agreement, too, would be void.
17
without jurisdiction. Thus, by analogy, the void judgments at issue in this case, which I believe
are void, would not be forfeited under Jackson.
The State has also cited People v. Peeples, 155 Ill. 2d 422, 616 N.E.2d 294 (1993), for the
proposition that a constitutional right, like any other right of a defendant, may be forfeited. The
holding of Peeples is also inapposite here because the argument on this particular issue concerns
a statutory rather than a constitutional question.
For the foregoing reasons, I believe three of the defendant’s four convictions for home
invasion should be found void, that we could thus reach his challenge on review, and that those
convictions would have to be vacated on that basis.
18