In re Rodney S.

Filed 6/30/10 NO. 4-09-0118

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: RODNEY S., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Logan County
v. ) No. 08JD21
RODNEY S., )
Respondent-Appellant. ) Honorable
) Charles M. Feeney,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

On September 10, 2008, the State filed a petition for

adjudication of wardship as to respondent, Rodney S. (born April

23, 1998), asserting that he was a delinquent minor pursuant to

section 5-105(3) of the Juvenile Court Act of 1987 (Juvenile

Court Act) (705 ILCS 405/5-105(3) (West 2008)). Specifically,

the State alleged that on his way home from school, 10-year-old

Rodney committed two counts of aggravated battery (720 ILCS 5/12-

4(b)(8), (b)(18) (West 2008)) against his bus monitor.

Following an October 2008 bench trial, the trial court

(1) found Rodney guilty of both counts of aggravated battery and

(2) adjudicated Rodney a delinquent minor. In January 2009, the

court placed Rodney in the custody of the Department of Children

and Family Services (DCFS) and sentenced him to probation "until

[he] attains 21 years of age."

Rodney appeals, arguing that (1) he was denied his

right to counsel because his court-appointed lawyer acted as both

his trial attorney and guardian ad litem; (2) this court should
order the trial court to amend its order of adjudication to

reflect one count of aggravated battery pursuant to the one-act,

one-crime rule; and (3) his sentence is (a) void and (b) exces-

sive. Because we agree that (1) under the one-act, one-crime

rule, one of the trial court's delinquency findings entered

against Rodney should be vacated and (2) Rodney's sentence is

void, we affirm in part, vacate in part, and remand with direc-

tions.

I. BACKGROUND

A. The State's Petition for Adjudication of Wardship

On September 10, 2008, the State filed a petition for

adjudication of wardship as to Rodney, asserting that he was a

delinquent minor pursuant to section 5-105(3) of the Juvenile

Court Act (705 ILCS 405/5-105(3) (West 2008)). The State alleged

that prior to his seventeenth birthday, Rodney committed two

counts of aggravated battery (720 ILCS 5/12-4(b)(8), (b)(18)

(West 2008)) by making contact of an insulting and provoking

nature with his bus monitor, Scott Lindley. The charges were

based, respectively, on the State's allegation that Rodney

committed battery (1) on public property--namely, a school van on

a public roadway (720 ILCS 5/12-4(b)(8) (West 2008))--and (2)

upon a school employee in the performance of his duties (720 ILCS

5/12-4(b)(18) (West 2008)). Following a September 25, 2008,

hearing on the State's petition, the trial court appointed an

attorney to represent Rodney.

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 B. Rodney's October 2008 Bench Trial

Lindley testified that as an employee of the Mount

Pulaski school district, he was charged with escorting students

to and from school. (The school district apparently employed

Lindley to ride in a van--which was driven by another school

district employee--to assist students who needed additional help

or supervision to get to and from school.) Lindley said that

Rodney acted appropriately on the way to school but that problems

arose on the ride home. Specifically, Lindley gave the following

account of the incident that led to the petition for adjudication

of wardship in this case.

"[LINDLEY:] *** [T]he driver *** went

out and got the note ***. [(Apparently, the

school had sent a note home with Rodney for

his mother, and Rodney had thrown that note

out of the van while it was in line to leave

the school.)] ***

[THE STATE]: *** While this was going

on, while his note was outside, was Rodney

pleading to get his note?

[LINDLEY:] He was--I wouldn't say plead-

ing. I would say more like ordering, order-

ing myself or the driver to get his note,

and, yes, he would use some off-colored lan-

guage in order to try to pursue that.

[THE STATE:] Did he attempt to go get

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the note?

[LINDLEY:] Yes, he did. At one point he

tried to climb over the seat ***. When that

didn't work, at some point he even laid down

in the seat and kicked the ceiling ***.

[THE STATE:] Subsequently[,] did he,

after the incident with the note, state that

he was going to hit you?

[LINDLEY:] Yes, he had told me he was

going to hit me. He told me he was going to

bite me. He told me that he hated me. ***

[THE STATE:] Okay, and what did he sub-

sequently do after he made those threats?

[LINDLEY:] I mean he did hit me, yes.

He hit me on [a] countless number of occa-

sions in the arm. I mean, once we got him in

his seat belt and got him to latch his seat

belt, I held the seat belt because, first of

all, we couldn't move [the van] unless we had

our seat belt on, and the driver clearly told

him *** to put his seat belt on, which he

didn't want to do. But once he got the seat

belt on, I held my hand over the seat belt.

That's when I received quite a few *** blows

to my upper and lower arm.

[THE STATE:] Okay, and soon thereaf-

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ter[,] did you pick up the other children?

[LINDLEY:] Yeah, we did.

[THE STATE:] And what happened after the

other children were picked up as far as

Rodney's behavior?

[LINDLEY:] It continued. It continued

to disintegrate further from there. ***

* * *

*** [A]t one point Rodney *** [got] down

on the floorboard, and he was looking for

something to hit me with as he indicated ***.

*** Rodney managed to find some stuff down on

the floor. *** He wiped [crushed crackers] on

me. He found a couple of double A batteries

and he threw those at me. *** He pulled [an

armrest] liner out and threw it at me. ***

[THE STATE:] And when you say that he

threw these things at you, did he actually

hit you with them?

[LINDLEY:] Yes, he actually hit me with

them.

[THE STATE:] So he hit you with the

liner and hit you with the batteries?

[LINDLEY:] Yes, and he hit me with his

shoe, and he also wiped his sock on my face

after he pulled his sock off.

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 [THE STATE:] And I'll give you a quote

from the police report. You can tell me if

this is accurate. After he took the sock and

rubbed it in your face, did he state to you,

'Give me my fucking shoe back[,] you bastard.

I don't give a damn what you said.'?

[LINDLEY:] Yes.

* * *

[THE STATE:] And am I correct, he had

struck you with one shoe[,] and you took it

away, and did he subsequently take his other

shoe and strike you?

[LINDLEY:] We're moving down the road.

We're still in Bloomington, *** and he takes

his shoe and his sock off, hits me with it,

then throws it up to the front of the van

between the two students so that I couldn't

get his shoe. So, yes.

* * *

[THE STATE:] [Y]ou said this conduct

continued all the way back to Mount Pulaski.

Is that correct?

[LINDLEY:] That's correct.

[THE STATE:] And did Rodney at some

point strike you in the face?

[LINDLEY:] Yes, he did.

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 [THE STATE:] Okay, and when did that

occur?

[LINDLEY:] You know, that occurred ***

around Heyworth or *** Atlanta ***. If I

would be *** looking straight forward in

front of me he would hit me in the face. ***

[T]he hits became worse when we were in Lin-

coln. I mean, subsequently worse. I mean

where they were direct punches to my face.

At that point, when we were in Lincoln ***.

* * *

[THE STATE:] I just want to clarify, ***

when you were in Lincoln, that's when he

punched you in the face and he asked you if

you liked that, or if that hurt, or something

to that effect?

[LINDLEY:] Yes ***.

Rodney and his mother, Debra S., testified in Rodney's

defense. Rodney's testimony in large part corroborated Lindley's

account of the incident in the van. Debra testified that she (1)

did not know exactly what happened in the van and (2) had been

unsuccessful in her attempts to discipline Rodney.

C. The Trial Court's Findings and Rodney's Sentence

Immediately following Rodney's trial, the trial court

(1) found him guilty of both counts of aggravated battery and (2)

adjudicated him a delinquent minor. Following a January 2009

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sentencing hearing, the court placed Rodney in the custody of

DCFS and sentenced him to probation "until [he] attains 21 years

of age."

This appeal followed.

II. ANALYSIS

Rodney argues that (1) he was denied his right to

counsel because his court-appointed lawyer acted as both his

trial attorney and guardian ad litem; (2) this court should order

the trial court to amend its order of adjudication to reflect one

count of aggravated battery pursuant to the one-act, one-crime

rule; and (3) his sentence is (a) void and (b) excessive. We

address Rodney's contentions in turn.

A. Rodney's Claim That He Was Denied His Right to Counsel

Rodney first contends that he was denied his right to

counsel because his court-appointed lawyer acted as both his

trial attorney and guardian ad litem. Specifically, Rodney

asserts that (1) the due-process clauses of the Illinois and

United States Constitutions and (2) the Juvenile Court Act

require that the trial court appoint an attorney to defend

juveniles and a separate individual to act as guardian ad litem.

Rodney posits, citing several secondary sources, that such dual

representation amounts to a per se conflict and, under the facts

of this case, an actual conflict. We disagree.

1. Section 1-5(1) of the Juvenile Court Act

Section 1-5(1) of the Juvenile Court Act provides, in

pertinent part, as follows:

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 "[T]he minor who is the subject of the

proceeding and his parents *** have the right

to be present, to be heard, to present evi-

dence material to the proceedings, to cross-

examine witnesses, to examine pertinent court

files and records and also, although proceed-

ings under this Act are not intended to be

adversary in character, the right to be rep-

resented by counsel. *** Counsel appointed

for the minor *** shall appear at all stages

of the trial court proceeding ***. ***

No hearing on any petition *** filed

under this Act may be commenced unless the

minor who is the subject of the proceeding is

represented by counsel. Notwithstanding the

preceding sentence, if a guardian ad litem

has been appointed for the minor under

[s]ection 2-17 of this Act [(705 ILCS 405/2-

17 (West 2008))] and the guardian ad litem is

a licensed attorney at law of this State, ***

the court may not require the appointment of

counsel to represent the minor unless the

court finds that the minor's interests are in

conflict with what the guardian ad litem

determines to be in the best interest of the

minor." (Emphasis added.) 705 ILCS 405/1-

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 5(1) (West 2008).

2. Counsel's Obligations in Juvenile Proceedings

Proceedings under the Juvenile Court Act are not

adversarial in the traditional sense. In re B.K., 358 Ill. App.

3d 1166, 1171, 833 N.E.2d 945, 950 (2005). "Unlike a purely

adversarial proceeding, a juvenile case requires the juvenile's

welfare and best interests to be considered." B.K., 358 Ill.

App. 3d at 1171, 833 N.E.2d at 950. In In re Beasley, 66 Ill. 2d

385, 389, 362 N.E.2d 1024, 1026 (1977), the supreme court de-

scribed proceedings under the Juvenile Court Act as follows:

"Although such a proceeding retains certain

adversary characteristics, it is not in the

usual sense an adversary proceeding, but it

is one to be administered in a spirit of

humane concern for and to promote the welfare

of the minor as well as to serve the best

interests of the community."

Put another way, a delinquency proceeding under the Juvenile

Court Act is not a traditional criminal prosecution. A lawyer's

responsibility in a juvenile case is unique because counsel has

to protect the juvenile's best interests even if those interests

do not correspond with the juvenile's wishes. As this court has

previously stated, "[t]he roles of a guardian ad litem and

minor's counsel are not inherently in conflict" because "[b]oth

have 'essentially the same obligations to the minor and to

society.'" In re J.D., 351 Ill. App. 3d 917, 920, 815 N.E.2d 13,

- 10 -
15 (2004), quoting In re R.D., 148 Ill. App. 3d 381, 387, 499

N.E.2d 478, 482 (1986) (also noting that no conflict exists

because the guardian ad litem, like defense counsel, has a duty

of loyalty to the minor, not the State).

We acknowledge the various out-of-state cases and

articles cited in Rodney's brief that challenge the dual role of

counsel and guardian ad litem as a conflict. However, we are

unpersuaded by them. Considering the matter further, we adhere

to the wisdom shown by the cases that we have cited, which we

conclude suggest a commonsense approach to protecting juveniles

in delinquency proceedings. Accordingly, we adhere to our

previously expressed view that the appointment of a lawyer to act

as both a juvenile's trial attorney and guardian ad litem does

not create a per se conflict of interest.

3. The Juvenile Proceedings in This Case

Having concluded that the appointment of a lawyer to

act as both a juvenile's trial attorney and guardian ad litem

does not create a per se conflict of interest, we now turn to

whether Rodney's attorney had an actual conflict in this case.

In support of Rodney's contention that his trial

counsel had a conflict, Rodney notes that his counsel elicited

testimony that had the effect of bolstering the State's case.

Specifically, Rodney's brief to this court states as follows:

"The State's case against Rodney was not

strong. Although there were several wit-

nesses to Rodney's alleged altercation with

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 *** Lindley, including the driver of the van

***, the State presented only Lindley's tes-

timony that Rodney had hit him while the van

passed through Logan County. *** Rather than

exploiting the weakness of the State's case,

however, counsel simply elicited testimony

which bolstered the State's case against his

client. During his 'cross[-]examination' of

Lindley, counsel elicited testimony that

Lindley had not hurt Rodney so as to provoke

the boy's outburst--something which the State

had failed to do in its own examination of

the witness. *** Counsel's case-in-chief was

limited to eliciting testimony from Rodney

which confirmed Lindley's version of events

and presenting evidence that Rodney had lost

privileges at home as a result of the inci-

dent. In light of counsel's actions, it[']s

not surprising that the trial court found the

evidence against Rodney 'overwhelming.'"

The record shows that Rodney's attorney asked Lindley

the following questions on cross-examination:

"Q. [W]ith respect to the first contact

that you made with [Rodney], *** that would

be considered a form of disciplinary action

or restraint?

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 A. The only thing I ever did was hold

his seat belt. That was it.

Q. Okay, there was never any physical

contact you made against him in any fashion?

A. No.

Q. And when you held his seat belt,

were you holding it in a way that put any

pressure on [Rodney]?

A. No.

Q. Was there any part of the seat belt

that in some way could have been injuring

this minor?

A. No.

Q. When you had your hands on this

belt, what part of the belt did you have your

hands on?

A. The actual buckle.

Q. And as part of that process[,] were

you putting any weight on the belt?

A. No. I was *** too far away to actu-

ally do that. Besides, I didn't want to be

any closer than I had to be because if I'd

been any closer, you know, that would have

been too close a contact for the amount of

hits and stuff that I received.

Q. All right--

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 A. I left space between he [sic] and I

[sic], and I honestly put my hand out over to

the seat belt.

Q. Okay. Were there periods of time

that would pass where nothing was happening

other than the fact that you were holding

onto the seat belt?

A. Yeah.

Q. And when things would re-initiate,

is there anything specific that happened, or

tell me--

A. It was still bothering him that I

had my hand on his seat belt, but I couldn't

take my hand off the seat belt because my

concern was that he would be out of the seat

belt, and basically the only part of the seat

belt that was even on him was the lap part.

He refused to have the across-the-chest part,

and--

Q. So that wasn't on his body at all?

A. No. ***

Q. Where was it that the cheese crack-

ers were smeared on your face?

A. That was back at the school.

Q. So at that point the bus was not

moving?

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 A. I should say, the second school ***.

No, the bus was not moving. At that time, we

were trying to *** talk him into getting back

into his seat belt.

Q. So he was free. He had free mobil-

ity at that point?

A. He had free mobility, but he was

throwing a tantrum ***. He was looking for

*** something *** and that's when he found

the cheese crackers.

Q. So how ultimately[,] did he end up

back in the seat belt?

A. *** He finally went back to his

seat. He put his seat belt on, and instantly

took it back off. That's when I came to the

conclusion that the only way to keep the seat

belt on was to keep it closed."

These questions did not create a conflict. To the

contrary, these questions were asked to challenge Lindley's

version of events, as well as the accuracy of his recollection.

That Lindley's answers may have reinforced his direct testimony

does not somehow create a scenario in which Rodney's counsel was

acting as an arm of the prosecution.

There is a reason no ineffective-assistance arguments

have been made here; no question exists that Rodney committed

these acts. When, as here, "counsel ha[s] few favorable facts at

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his disposal, and many unfavorable ones with which to contend"

(People v. Burnett, No. 107807, slip op. at 8 (March 18, 2010),

__ Ill. 2d __, ___, __ N.E.2d __, ___), his duty to his client

and the court is to do the best that he can under the circum-

stances.

We acknowledge that a conflict in a juvenile proceeding

can be significant enough to require dual representation, but

that is clearly not the situation before us. Instead, Rodney's

counsel's representation was carefully crafted to (1) protect

Rodney's interests and (2) assist the court in arriving at an

outcome that would be in Rodney's best interests. We conclude

that under these circumstances, it was both "financially and

functionally prudent to appoint a single attorney to perform both

roles." B.K., 358 Ill. App. 3d at 1174, 833 N.E.2d at 952.

B. Rodney's Claim That His Adjudication
Violates the One-Act, One-Crime Rule

Rodney next contends that his adjudication violates the

one-act, one-crime rule. Specifically, Rodney asserts that this

court should instruct the trial court to amend its order of

adjudication to reflect one count of aggravated battery to comply

with the one-act, one-crime rule because the State failed to

differentiate between each individual strike or blow in the

charging instrument. The State responds that although it did not

differentiate between each individual strike or blow, the State

treated Rodney's conduct as multiple acts. In support of its

position, the State points out that it (1) charged Rodney with

multiple counts of aggravated battery and (2) presented evidence

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to support multiple convictions at trial. For the reasons that

follow, we agree with Rodney.

1. Forfeiture and the Plain-Error Rule

Initially, we note that Rodney has forfeited review of

his one-act, one-crime contention because, as he acknowledges in

his brief, he failed to raise this issue at the trial court

level. See People v. Reed, 177 Ill. 2d 389, 394, 686 N.E.2d 584,

586 (1997) (sentencing issues must be raised in the trial court

to preserve those issues for appellate review). Nonetheless,

Rodney posits that plain-error review is warranted because

violations of the one-act, one-crime rule substantially affect

fundamental fairness, particularly in juvenile proceedings. The

State counters that because no violation of the one-act, one-

crime rule occurred in this case--that is, no error occurred--the

plain-error doctrine does not apply. Because (1) for the reasons

that we explain below, error occurred in this case, and (2) "it

is well established that a one-act, one-crime violation affects

the integrity of the judicial process" (In re Samantha V., 234

Ill. 2d 359, 378, 917 N.E.2d 487, 499 (2009)), we agree with

Rodney.

2. The One-Act, One-Crime Rule

In People v. King, 66 Ill. 2d 551, 363 N.E.2d 838

(1977), the supreme court penned its seminal decision involving

what is often referred to as the one-act, one-crime rule. In

King, the supreme court explained that a defendant may not be

convicted of more than one offense as a result of the same

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physical act. King, 66 Ill. 2d at 566, 363 N.E.2d at 844. More

than two decades later in People v. Crespo, 203 Ill. 2d 335, 788

N.E.2d 1117 (2001), the supreme court noted that, for purposes of

defining the "act" referred to in King, its precedent demon-

strated that separate blows, although closely related, could be

separate acts sufficient to support multiple convictions.

Crespo, 203 Ill. 2d at 341-42, 788 N.E.2d at 1121, citing People

v. Dixon, 91 Ill. 2d 346, 438 N.E.2d 180 (1982). However, to

sustain multiple convictions for closely related separate blows,

the supreme court noted that the State had to apportion those

separate blows at the trial level. Crespo, 203 Ill. 2d at 345,

788 N.E.2d at 1123 (holding that in such cases "the indictment

must indicate that the State intended to treat the conduct of

defendant as multiple acts in order for multiple convictions to

be sustained").

One-act, one-crime analysis involves the following two

steps: (1) the reviewing court must determine whether the defen-

dant's conduct consisted of one physical act or separate physical

acts and, if the court concludes that the conduct consisted of

separate acts, (2) the court must determine whether any of those

offenses are lesser-included offenses. People v. Harvey, 211

Ill. 2d 368, 389, 813 N.E.2d 181, 194-95 (2004). An "act" is

"any overt or outward manifestation which will support a differ-

ent offense." King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45. As

previously stated, separate blows, although closely related, may

constitute separate acts sufficient to support multiple convic-

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tions. Crespo, 203 Ill. 2d at 342, 788 N.E.2d at 1121. However,

a defendant may be prejudiced when the State treats closely

related acts as one but changes its course on appeal to assert

separate acts to support separate convictions. See Crespo, 203

Ill. 2d at 342-43, 788 N.E.2d at 1121-22. To sustain multiple

convictions for closely related separate blows, the State must

provide the defendant notice of its intent to treat each blow as

a separate act by apportioning those separate blows at the trial

level. See Crespo, 203 Ill. 2d at 344-45, 788 N.E.2d at 1122-23.

If the court determines that the State pursued the charges

against the defendant as a single physical act, then multiple

convictions are improper and the reviewing court need not proceed

to the lesser-included step of the one-act, one-crime analysis.

People v. Rodriguez, 169 Ill. 2d 183, 186, 661 N.E.2d 305, 306-07

(1996).

Accordingly, we must first determine whether the State

alleged that Rodney's conduct consisted of separate acts or a

single physical act. As this determination is one of law, we

review it de novo. Samantha V., 234 Ill. 2d at 369, 917 N.E.2d

at 494.

3. The Supreme Court's Decision in Samantha V.

In Samantha V., 234 Ill. 2d at 376-77, 917 N.E.2d at

498, the State filed an amended petition for adjudication of

wardship against Samantha, alleging that she committed two counts

of aggravated battery. The first count alleged as follows:

"'On or about June 10, 2005, *** [respondent]

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 committed the offense of AGGRAVATED BATTERY,'

when she 'knowingly caused great bodily harm

to [the victim], in that the above named

minor struck [the victim] about her head

multiple times, causing a laceration which

required stitches.'" Samantha V., 234 Ill.

2d at 377, 917 N.E.2d at 498.

Similarly, count II alleged as follows:

"'[O]n or about June 10, 2005, *** [respon-

dent] committed the offense of AGGRAVATED

BATTERY, *** while [the victim] was on the

street or sidewalk of *** a public way,' when

she 'knowingly caused bodily harm to [the

victim] in that the above named minor struck

[the victim] about the face and/or body mul-

tiple times causing lacerations to her face

and/or body.'" Samantha V., 234 Ill. 2d at

377, 917 N.E.2d at 498.

Samantha argued that her multiple convictions for aggravated

battery violated the one-act, one-crime rule. Samantha V., 234

Ill. 2d at 375-76, 917 N.E.2d at 498. Specifically, Samantha

asserted that the finding of guilt entered against her for

aggravated battery predicated upon great bodily harm (count I)

was based on the same physical act as her conviction for aggra-

vated battery on a public way (count II). Samantha V., 234 Ill.

2d at 375-76, 917 N.E.2d at 498. The State responded that

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Samantha was charged with and found guilty of those counts based

on separate physical acts that resulted in distinct physical

injuries. Samantha V., 234 Ill. 2d at 376, 917 N.E.2d at 498.

Citing its decision in Crespo, the supreme court

concluded that the counts alleged against Samantha were based on

the same conduct but predicated upon different theories of

criminal culpability. Samantha V., 234 Ill. 2d at 377, 917

N.E.2d at 498-99. The supreme court added that "the State ***

did not differentiate between strikes or blows to the victim when

drafting the charging instrument." Samantha V., 234 Ill. 2d at

377, 917 N.E.2d at 498. Instead, the court noted, "the State

drafted the adjudication petition to include two counts charging

[Samantha] with the same conduct under two different theories."

Samantha V., 234 Ill. 2d at 377, 917 N.E.2d at 498-99.

4. The State's Petition in This Case

In this case, the State filed the petition for adjudi-

cation of wardship against Rodney, alleging that he committed two

counts of aggravated battery against Lindley. The first count

alleged as follows:

"[O]n or about September 3, 2008[,] in Logan

and McLean Counties *** [Rodney] committed

the offense of AGGRAVATED BATTERY, [when he]

knowingly made physical contact of an insult-

ing or provoking nature with *** Lindley, in

that [Rodney] rubbed cheese on *** Lindley's

shirt, threw batteries at Lindley, rubbed a

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 sock in Lindley's face, threw a shoe at

Lindley, and repeatedly punched *** Lindley

in the face with his fists."

Count II alleged as follows:

"[O]n or about September 3, 2008[,] in Logan

and McLean Counties *** [Rodney] committed

the offense of AGGRAVATED BATTERY, [when he]

knowingly made physical contact of an insult-

ing or provoking nature with *** Lindley, in

that [Rodney] rubbed cheese on *** Lindley's

shirt, threw batteries at Lindley, rubbed a

sock in Lindley's face, threw a shoe at

Lindley, and repeatedly punched *** Lindley

in the face with his fists."

Thus, the State alleged that Rodney committed two counts of

aggravated battery based on a closely related series of acts

occurring on the same day. Compare People v. Bishop, 218 Ill. 2d

232, 843 N.E.2d 365 (2006) (series of acts were not closely

related where the State charged the defendant with eight counts

of sexual assault that occurred between 1998 and 2000). As

previously stated, a series of closely related acts may be

considered a single act for purposes of the one-act, one-crime

rule when the State charges the acts as a single course of

conduct. See Samantha V., 234 Ill. 2d at 376-77, 917 N.E.2d at

498-99.

Here, as in Samantha V., the State did not differenti-

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ate between the blows Rodney inflicted on Lindley when it drafted

the charging instrument. Instead, the delinquency petition

included two counts charging Rodney with the same conduct under

two different theories of criminal culpability. That is, the

State's petition alleged that Rodney committed aggravated battery

and used the exact same language to describe the acts as a single

series of events in both counts. The only difference in the two

counts was the language the State used to elevate each battery to

aggravated status--namely, the fact that (1) the battery took

place on public property (720 ILCS 5/12-4(b)(8) (West 2008)) in

count I and (2) Lindley was an employee of a local school dis-

trict (720 ILCS 5/12-4(b)(18) (West 2008)) in count II. The

State charged Rodney under multiple counts for the exact same

conduct--described as a series of acts in its petition--based on

two different theories of criminal culpability.

Because we have determined that the State did not

pursue the charges against Rodney as individual acts, we need not

proceed to the second step in the one-act, one-crime analysis.

Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306-07. Accord-

ingly, we conclude that Rodney's multiple convictions for aggra-

vated battery violated the one-act, one-crime rule.

Although we conclude that Rodney's multiple convictions

for aggravated battery violated the one-act, one-crime rule, we

note, as the supreme court did in Samantha V. and in Crespo

before it, that each blow to Lindley could have supported a

separate finding of guilt for aggravated battery. Samantha V.,

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234 Ill. 2d at 378, 917 N.E.2d at 499; Crespo, 203 Ill. 2d at

345, 788 N.E.2d at 1123. However, multiple convictions may only

be sustained "if the charging document reflects the State's

intent to apportion the accused's conduct and prosecute the

accused for multiple crimes." Samantha V., 234 Ill. 2d at 378,

917 N.E.2d at 499. As drafted, the State's petition alleges that

Rodney committed aggravated battery based on a series of acts

that took place in Logan and McLean counties. Had the State

alleged, for example, that Rodney committed aggravated battery in

one county or the other in each count, or in both counties but

based on separate blows, Rodney's conviction on multiple counts

could withstand one-act, one-crime scrutiny. See People v.

Olivieri, 334 Ill. App. 3d 311, 778 N.E.2d 714 (2002) (holding

that the State's information clearly charged the defendant with

three separate sexual assaults); see also Bishop, 218 Ill. 2d at

247, 843 N.E.2d at 374 (holding that no one-act, one-crime issue

existed where the multicount indictment alleged, in part, alter-

native theories, and, in part, that certain crimes were greater-

and lesser-included offenses).

In summary, we agree that under the one-act, one-crime

rule, one of the trial court's delinquency findings entered

against Rodney should be vacated. See Samantha V., 234 Ill. 2d

at 379-80, 917 N.E.2d at 500. When, as in this case, the punish-

ments are identical and the more serious offense cannot be

determined on appeal, the best course of action is to remand the

cause to the trial court for that determination. See Samantha

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V., 234 Ill. 2d at 379-80, 917 N.E.2d at 500, citing People v.

Artis, 232 Ill. 2d 156, 170, 902 N.E.2d 677, 686 (2009). There-

fore, we direct the court to correct its "Adjudication Order,"

which indicates that Rodney has been found delinquent of "[two]

counts of [a]ggravated [b]attery" once it determines whether

count I or count II is the more serious offense.

C. Rodney's Claim That His Sentence Is Void and Excessive

Rodney next contends that his sentence is void and

excessive. Rodney asserts that his sentence is void because,

under the Juvenile Court Act, the term of probation available to

the trial court was limited to five years, given that the aggra-

vated battery upon which Rodney's adjudication was based did not

constitute a forcible felony. Alternatively, Rodney posits that

"the imposition of a nearly [11]-year term of probation consti-

tuted an abuse of discretion." We agree with Rodney that his

sentence is void.

1. The Standard of Review

Because Rodney's initial challenge to his sentence

requires this court to construe the language of the Juvenile

Court Act, our review is de novo. In re Z.L., 379 Ill. App. 3d

353, 376-77, 883 N.E.2d 658, 677 (2008).

2. Probation Under the Juvenile Court Act

Once a trial court adjudicates a juvenile delinquent,

it may sentence the juvenile to the following period of probation

under section 5-715(1) of the Juvenile Court Act:

"The period of probation *** shall not

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 exceed 5 years or until the minor has

achieved the age of 21 years, whichever is

less, except as provided in this [s]ection

for a minor who is found to be guilty for an

offense which is *** a forcible felony. The

juvenile court may terminate probation ***

and discharge the minor at any time if war-

ranted by the conduct of the minor and the

ends of justice; provided, however, that the

period of probation for a minor who is found

to be guilty for an offense which is *** a

forcible felony shall be at least 5 years."

705 ILCS 405/5-715(1) (West 2008).

3. The Legislature's Definition of a Forcible Felony

The legislature has defined "forcible felony" as

follows:

"'Forcible felony' means treason, first

degree murder, second degree murder, preda-

tory criminal sexual assault of a child,

aggravated criminal sexual assault, criminal

sexual assault, robbery, burglary, residen-

tial burglary, aggravated arson, arson, ag-

gravated kidnaping, kidnaping, aggravated

battery resulting in great bodily harm or

permanent disability or disfigurement and any

other felony which involves the use or threat

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 of physical force or violence against any

individual." 720 ILCS 5/2-8 (West 2008).

4. Rodney's Contention That the Aggravated
Battery Upon Which His Adjudication Was Based
Did Not Constitute a Forcible Felony

Rodney contends that his sentence is void because,

under the Juvenile Court Act, the term of probation available to

the trial court was limited to five years, given that the aggra-

vated battery upon which Rodney's adjudication was based did not

constitute a forcible felony. Specifically, Rodney asserts that

the language defining a forcible felony as an "aggravated battery

resulting in great bodily harm or permanent disability or disfig-

urement" is limiting language. The State responds that Rodney's

sentence is not void because the plain language of the definition

includes "any other felony which involves the use or threat of

physical force or violence against an individual," which includes

aggravated battery. We agree with Rodney.

When interpreting a statute, the reviewing courts must

ascertain and give effect to the legislature's intent. People v.

Jones, 214 Ill. 2d 187, 193, 824 N.E.2d 239, 242 (2005). The

legislature's intent is best ascertained by examining the lan-

guage of the statute itself. People v. Belk, 203 Ill. 2d 187,

192, 784 N.E.2d 825, 827 (2003). Reviewing courts must construe

the language of a penal statute in favor of the accused. In re

Jaime P., 223 Ill. 2d 526, 539, 861 N.E.2d 958, 966 (2006). "In

interpreting a statute, a court should 'consider, in addition to

the statutory language, the reason for the law, the problems to

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be remedied, and the objects and purposes sought.'" People v.

Schmidt, 392 Ill. App. 3d 689, 695, 924 N.E.2d 998, 1005 (2009),

quoting People v. Donoho, 204 Ill. 2d 159, 171-72, 788 N.E.2d

707, 715 (2003).

Recently faced with this issue--namely, whether the

legislature intended to exclude aggravated batteries that did not

result in "great bodily harm or permanent disability or

disfigurement"--the First District Appellate Court held as

follows:

"[B]y using the word 'other' [in section

2-8 (720 ILCS 5/2-8 (West 2008))] after list-

ing 14 specific felonies, the legislature

clearly intended the residual category to

refer to felonies not previously specified.

Where the statute specifically enumerated

aggravated battery resulting in great bodily

harm or permanent disability or disfigure-

ment, 'other felony' must refer to felonies

other than aggravated battery." Schmidt, 392

Ill. App. 3d at 695, 924 N.E.2d at 1006.

We adopt the First District's analysis in Schmidt and

find support for our conclusion, as did that court, in the 1990

amendment to the forcible-felony statute. Before the 1990

amendment, the definition of a forcible felony included all

aggravated batteries. In 1990, the legislature added the phrase

"resulting in great bodily harm or permanent disability or

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disfigurement." See Schmidt, 392 Ill. App. 3d at 696, 924 N.E.2d

at 1006 (noting that the legislature added that phrase via Public

Act 86-291 (Pub. Act 86-291, §1, eff. January 1, 1990 (1989 Ill.

Laws 2183, 2183)) to limit the number and types of aggravated

batteries that would qualify as forcible felonies). We agree

with the First District that "the legislature expressed its

intent to limit the number and types of aggravated batteries that

would qualify as forcible felonies" (Schmidt, 392 Ill. App. 3d at

696, 924 N.E.2d at 1006) when it enacted the 1990 amendment.

Accordingly, while we acknowledge the split in the

appellate court on this issue (see, for example, In re Angelique

E., 389 Ill. App. 3d 430, 433, 907 N.E.2d 59, 62-63 (2009)

(Second District, holding that the forcible-felony statute

includes only aggravated batteries that result in great bodily

harm, permanent disability, or disfigurement); compare People v.

Jones, 226 Ill. App. 3d 1054, 1056, 590 N.E.2d 101, 103 (1992)

(Third District, holding that the legislature intended to include

any aggravated battery in the definition of "forcible felony,"

despite acknowledging that its conclusion in that regard was not

free from doubt)), we conclude that the legislature intended the

residual category of section 2-8 (720 ILCS 5/2-8 (West 2008)) to

refer to felonies not previously specified in the preceding list

of felonies contained within that section. Therefore, we (1)

vacate the trial court's sentence of 11 years of probation

because that sentence exceeded the court's authority and is

therefore void and (2) remand for a new sentencing hearing with

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directions that the trial court sentence Rodney within the 5-year

window for probation provided by section 5-715 of the Juvenile

Court Act.

Because we have vacated Rodney's sentence as void, we

need not address his alternative argument that his sentence was

excessive. However, we note that as part of his excessive-

sentence argument, Rodney claims that the trial court failed to

properly admonish him pursuant to Supreme Court Rule 605(a) (210

Ill. 2d R. 605(a)). Although we do not address Rodney's claim

directly, we remind the trial court that Rule 605(a) requires a

court to admonish a delinquent directly with respect to each of

his rights under Rule 605(a), even when, as in this case, the

delinquent's counsel concedes that he has been properly admon-

ished. Such concessions should not be sought and, when offered,

should be disregarded.

III. CONCLUSION

For the reasons stated, we affirm the judgment of the

trial court in part, vacate in part, and remand with directions

to (1) vacate one finding of delinquency and (2) resentence

Rodney in conformity with this opinion.

Affirmed in part and vacated in part; cause remanded

with directions.

TURNER and POPE, JJ., concur.

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