People v. Patrick

No. 2-08-0745 Filed: 7-27-10
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 07--CF--2274
)
TYRON L. PATRICK, ) Honorable
) George Bridges,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Tyron L. Patrick, was convicted of reckless homicide (720 ILCS 5/9--3(a) (West

2006)) and four counts of failing to report an accident involving injury or death (625 ILCS 5/11--

401(b) (West 2006)). On May 16, 2008, he was sentenced to nine years' imprisonment for count I,

failing to report an accident involving a death, and five years' imprisonment for counts II through IV,

failing to report an accident involving an injury, which were to be served concurrently. He was also

sentenced to nine years' imprisonment for the reckless homicide conviction, which was to be served

consecutively. In addition, the trial court ordered that defendant was to serve 85% of the reckless

homicide sentence. Defendant moved to reduce his sentences on June 10, 2008. On June 24, 2008,

defendant filed a pro se motion for appointment of new counsel and a motion for a new trial. The

trial court found defendant's pro se motions untimely and would not consider them. On August 1,

2008, the trial court denied the motion to reduce his sentences. Defendant timely appealed.
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On appeal, defendant argues that: (1) the State failed to prove all elements of section 11--

401(b) of the Vehicle Code (625 ILCS 5/11--401(b) (West 2006)), requiring this court to reduce his

convictions on counts I through IV to the lesser included offense of leaving the scene of an accident

(625 ILCS 5/11--401(a) (West 2006)); (2) convicting him of four counts of failing to report an

accident involving injury or death violated the one-act, one-crime rule, requiring this court to vacate

three of those convictions; (3) if we do not reduce his convictions on counts I through IV to the

lesser included offense, his extended-term sentence for reckless homicide must be reduced; (4) the

order to serve 85% of his sentence must be vacated because the trial court lacked statutory

authorization to enter it; (5) the trial court did not comply with Supreme Court Rule 431(b) (Official

Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), thus warranting a new

trial; and (6) the trial court improperly failed to consider his allegations of ineffective assistance of

counsel in his two pro se motions filed while his motion to reduce his sentences was pending. We

affirm in part, vacate in part, and remand the cause for resentencing.

I. BACKGROUND

On July 18, 2007, defendant was indicted for several offenses relating to a traffic accident on

May 20, 2007, that killed Holly Graham and injured Tiara Langston, Gary Nixon, and Jauqtel Foster.

In count I, defendant was charged with failing to report an accident involving the death of Graham

pursuant to section 11--401(b) of the Vehicle Code. In counts II, III, and IV, defendant was charged

with failing to report an accident involving the injuries of Langston, Nixon, and Foster. Count V

charged defendant with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West

2006)), but that charge was later nol-prossed by the prosecution. Later, defendant was indicted on

a sixth count, reckless homicide, pursuant to section 9--3(a) of the Criminal Code of 1961 (Criminal

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Code) (720 ILCS 5/9--3(a) (West 2006)), for driving his vehicle between 91 and 95 miles per hour

on a residential street with a 30-mile-per-hour limit.

On February 26, 2008, the jury selection process began. In the presence of 35 potential

jurors, the trial court stated:

"I shall at this time touch upon certain, broad fundamental principles of law that apply

to all criminal cases, and they specifically apply to the criminal case that is before me and now

before all of you. ***

***

It is absolutely essential as we select this jury that each of you understands and

embraces these fundamental principles and they are: The defendant is presumed innocent of

the charge that brings him before you, that the State has the burden of proof, the State must

prove the charges here beyond a reasonable doubt, the defendant does not have to prove his

innocence, he does not have to testify, he does not have to call any witnesses, he does not

have to present any evidence at all. He and his attorneys can simply sit there and rely upon

what they believe is going to be the State's inability to prove him guilty beyond a reasonable

doubt. And should that happen, you will have to decide this case on the basis of the evidence

presented by the State.

The fact that the defendant may not testify in these proceedings is not to be considered

by you in any way in arriving at your verdict. ***

***

The bottom line however is that under our system of laws, the defendant is not

required to prove his innocence. That rests squarely with the State and they must prove the

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defendant guilty beyond a reasonable doubt."

The court ultimately impaneled jurors 352, 274, 70, 40, 96B, 307, 149, 330, 96A, 46, 387, and 27.

We review the questioning of these jurors only as relevant to our Rule 431(b) analysis.

The court first called the following 12 potential jurors into the jury box: 46, 96A, 149, 307,

288, 64, 387, 312, 330, 96B, 274, and 352. The following ensued:

"THE COURT: You heard me talk about those fundamental principles of law that

govern and apply to this case, the fact that the defendant is presumed innocent of the charges

here, that the State has the burden of proof, the State has to prove the charges beyond a

reasonable doubt, the defendant does not have to prove his innocence, he does not have to

testify or call any witnesses. Do you understand and accept those principles?

JUROR #352: Yes, I do.

THE COURT: Do you disagree with any one of those principles?

JUROR #352: No, I don't."

Jurors 70, 40, 96B, 149, 307, 330, 96A, 46, and 387 were asked a question that named the

identical principles that were included in Juror 352's question. They responded in a likewise manner.

Juror 274 was asked the following:

"You heard me talk about those fundamental principles of law that apply to all

criminal cases, the fact that the defendant is presumed innocent of the charges here, the State

has the burden of proof, the State has to prove the charges beyond a reasonable doubt, the

defendant does not have to prove his innocence, he does not have to call any witnesses as I

indicated earlier. He and his attorney can simply sit there and rely upon what they believe will

be the State's inability to prove him guilty beyond a reasonable doubt. Do each of you

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understand and accept these principles?"

Juror 274 replied yes and said that he did not disagree with any of those principles.

Juror 27 was asked and answered in the following manner:

"And talking about those principles that govern this case, you heard me indicate that

the defendant is presumed innocent, that he doesn't have to call witnesses, he doesn't have to

testify or present any evidence. Do you agree with that?

JUROR #27: Yes, I do.

THE COURT: And you promise you will not require him to prove his innocence?

JUROR #27: Yes.

THE COURT: Anything about either of those principles that causes you concern that

you may or cannot follow them?

JUROR #27: No.

THE COURT: And you understand that the State has the burden of proof, the State

in this case must prove the charges here beyond a reasonable doubt. Do you understand and

accept those principles?

JUROR #27: Yes.

THE COURT: Do you have any disagreement at all with them?

JUROR #27: No."

Jurors 177 and 112 were selected as alternate jurors. The court stated:

"Under our system of laws, the State has the burden in [the] case here. They have to

prove this charge or the charges here beyond a reasonable doubt. The defendant is presumed

innocent. He does not have to testify or call any witnesses. Do both of you understand and

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accept those principles?"

The alternates responded "yes," and they responded "no" when asked if they disagreed with

any of those principles.

The State first called Langston. In the early morning hours of May 20, 2007, Langston was

coming home from a gathering with friends. Graham was driving the car. Nixon and Foster were

sitting in the backseat. Langston recalled that she was talking to Foster and heard Nixon say "watch

out." Langston then blacked out. She remembered next waking up in Lake Forest Hospital with

broken ribs, bruised lungs, and a bruised kidney.

Foster testified that he was seated in the backseat of Graham's car. He did not remember

anything after the car traveled toward 12th and Jackson Streets in North Chicago. He did not recall

being thrown from the vehicle. He recalled waking up the next day in Condell Medical Center with

stitches above his right eye, a broken pelvis, collapsed lungs, and broken ribs.

Nixon testified that he was seated behind Graham. As they approached 12th and Jackson

Streets, he told Graham that he loved her and then saw bright lights coming from the left. The next

thing he recalled was waking up in Victory Hospital with broken ribs, a cracked pelvis, a punctured

lung, and a punctured spleen. Nixon was paralyzed for three days, had two surgeries on his mouth,

had split both ears, and had breathing problems.

The parties stipulated that Graham owned the car involved in the crash and that she died as

a result of the crash, on May 20, 2007, at age 19.

Lieutenant Richard Theis of the North Chicago police department testified that while on

general patrol on May 20, around 12:30 a.m., he observed a black vehicle traveling at a high rate of

speed out of the 1800 block of Jackson. The vehicle was bouncing and made a hard right-hand turn

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on eastbound 18th Street. Theis followed the vehicle but it was accelerating through a residential

area. He radioed for backup. The intersection at 14th and Jackson is offset and Theis could not see

the vehicle there. Two other patrol units approached Theis at that intersection. The police vehicles

continued north on Jackson and saw what appeared to be an accident scene near 12th Street. Theis

observed the black vehicle stopped in the southbound lanes of Jackson. A white car was up against

a tree on the parkway. The black vehicle had no occupants. Theis stated that it was about one to

two minutes from when he lost sight of the black vehicle to when he arrived at the scene of the

accident.

Vernice Wright, defendant's mother, testified that on May 19, 2007, she purchased a black

2007 Monte Carlo and parked it in back of her home in the 1800 block of Jackson. In the early

morning hours of May 20, her stepson called her and asked where the Monte Carlo was. Wright,

who was out with a friend, drove to her home and saw that the car was gone. She went to see if her

other car was in front, and an acquaintance drove up and told her that there was a bad accident up

the road and that it looked like her son was there. She went to the scene but was not allowed to

verify if her car was there. Police verified that her son was not at the scene.

Officer Donald Florance of the North Chicago police department testified that he responded

to Theis's call for backup on the morning of May 20. He met Theis near the intersection of 14th and

Jackson, where he observed a cloud of smoke and lights in the distance to the north. The officers

continued in that direction and observed the accident scene. The black Monte Carlo had no

occupants. Three people were in the white car, a Mercury. On May 7, 2007, Florance was patrolling

an area of 22nd Street. He observed defendant standing outside a gray Cadillac. Defendant got into

the car and drove off, and Florance followed and activated his lights in order to make a traffic stop.

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Defendant began traveling 50 to 60 miles per hour in a 25-mile-per-hour speed zone. Florance

pursued but stopped near Green Bay Road, where defendant was accelerating up to 90 miles per

hour.

Officer Morris Wade of the North Chicago police department testified that he was assigned

to investigate the crash. On May 22, defendant called and spoke to Wade. Defendant asked what

kind of charges he would be facing if he turned himself in. Wade informed defendant that he was

unsure because the investigation was incomplete. Defendant advised that he would be turning himself

in shortly. Wade asked if defendant had gotten medical treatment for any injuries, and defendant

stated that he was not hurt. Wade admitted that defendant did not identify himself as the driver of

the black vehicle.

Sergeant Salvatore Cecala of the North Chicago police department testified that he was part

of the department's accident reconstruction team and was assigned to the May 20 crash. Cecala

identified a photograph of the Monte Carlo's driver's deployed air safety bag with blood on it. The

manner in which the blood was smeared on the air bag caused Cecala to believe that it could have

come only from the driver. He also identified some blood splatter on the rail where a person would

climb into the car, near the carpet. Cecala recovered from the front passenger floorboard a purse

with identification of Tarielle Walls. Another purse was recovered from the rear driver's-side

floorboard. A cell phone was hooked up to the back console. Another cell phone was on the

floorboard of the driver's side and another on the floorboard of the passenger side. One phone had

a "Monique" nameplate. Based on the skidmarks, Cecala estimated that the Monte Carlo had been

traveling at 95 miles per hour.

Dr. Eupil Choi testified regarding Graham's fatal injuries. Kenneth Pfoser, a forensic scientist

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with the Northeastern Illinois Regional Crime Laboratory, testified that the DNA from the air bag

blood matched defendant's DNA.

Defendant called Tarielle Walls. On the night of May 19, Walls was "partying" with her

sisters, Marielle and Monique, and a cousin at the Rainbow Club in Waukegan when they met up with

defendant and a man named "D." "D" was a short, dark-skinned man with a low haircut. They left

the club in defendant's white Monte Carlo. Defendant was driving and Walls was in the front

passenger seat. "D" was in the backseat. They drove to defendant's home in North Chicago.

Defendant went inside his home and returned with some car keys. They then got into a new, black

Monte Carlo. "D" drove, Walls was in the front passenger seat, and defendant was in the backseat

on the passenger side. When they got to 12th and Jackson, a white car pulled out from a stop sign,

and "D" swerved but the cars collided. "D" jumped out of the car, defendant spoke to Walls, and

then he also left the vehicle. Walls got out of the car with the assistance of a neighbor and sat on the

curb until the police came. She denied that the car had been traveling 90 miles per hour. She

identified her purse and her sister's purse, which had been recovered from the vehicle.

At the close of evidence, the trial court ruled on jury instructions. The State requested Illinois

Pattern Jury Instructions, Criminal, No. 23.05 (4th ed. 2000) (hereinafter IPI Criminal 4th). Defense

counsel objected to IPI Criminal 4th No. 23.05 because it differed from the actual charges against

defendant, which included the element of failing to provide notice to the police within 30 minutes of

leaving the accident scene. The State's response was merely that the IPI instructions often differ. The

court ruled that it would provide IPI Criminal 4th No. 23.05.

IPI Criminal 4th No. 23.05 provides:

"A person commits the offense of leaving the scene of an accident involving death or

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personal injury when he is the driver of a vehicle involved in a motor vehicle accident

resulting in death or personal injury to any person and, with knowledge that an accident has

occurred, and with knowledge that the accident involved another person, he fails to

immediately stop his vehicle at the scene of the accident and remain there until he has

performed the duty to give information and render aid." IPI Criminal 4th No. 23.05.

Defense counsel also objected to IPI Criminal 4th No. 23.06, which provides:

"To sustain the charge of leaving the scene of an accident involving death or personal

injury, the State must prove the following propositions:

First Proposition: That the defendant was the driver of a vehicle involved in a motor

vehicle accident; and

Second Proposition: That the motor vehicle accident resulted in a death or personal

injury; and

Third Proposition: That the defendant knew an accident occurred; and

Fourth Proposition: That the defendant knew that the accident involved another

person; and

Fifth Proposition: That the defendant failed to immediately stop his vehicle at the

scene of the accident and remain at the scene of the accident until he had performed the duty

to give information and render aid.

If you find from your consideration of all of the evidence that each one of these

propositions has been proved beyond a reasonable doubt, you should find the defendant

guilty.

If you find from your consideration of all of the evidence that any one of these

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propositions has not been proved beyond a reasonable doubt, you should find the defendant

not guilty." IPI Criminal 4th No. 23.06.

After closing arguments, the trial court admonished the jury that defendant was presumed

innocent, that the State carried the burden of proving defendant's guilt beyond a reasonable doubt,

that defendant was not required to prove his innocence, that he did not have to testify, and that the

jury must not consider the fact that defendant did not testify in arriving at its verdict. The trial court

then read through the remaining jury instructions. The jury returned guilty verdicts on all charges.

On March 20, 2008, defendant filed a motion for judgment notwithstanding the verdict

(n.o.v.) or alternatively for a new trial. An amended motion was filed on April 10, 2008. On May

16, 2008, the trial court denied the motion. The matter continued to sentencing. After the trial court

heard the witnesses and arguments, it sentenced defendant to an extended term of nine years'

imprisonment for reckless homicide, a Class 3 offense, and nine years' imprisonment for failing to

report an accident involving a death, a Class 2 offense, to be served consecutively. For each of the

three counts of failing to report an accident involving an injury, a Class 3 offense, the trial court

sentenced defendant to five years' imprisonment, to be served concurrently. The court ordered that

defendant would serve 85% of the reckless homicide sentence. Additionally, defendant would serve

the two years' mandatory supervised release period for the Class 2 offense and one year for the Class

3 offenses.

On June 10, 2008, defendant filed a motion to reduce his sentences. On June 24, defendant

filed a pro se motion titled "Motion for Appointment of Counsel Outside the Office of the Lake

County Public Defender." Within that motion, defendant challenged the competency of his trial

counsel and alleged several instances of ineffectiveness, including the following: (1) counsel did not

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inform him that she was licensed; (2) counsel colluded with the State's Attorney's office by advising

defendant that if he did not cooperate, there would be additional charges; (3) counsel forgot to bring

several large exhibits to the second day of trial; (4) counsel failed to challenge the consecutive

sentences; (5) counsel failed to file posttrial motions arguing that the police failed to fingerprint the

black car to determine that defendant was not the driver; (6) counsel deprived him of a fair and

speedy trial; (7) counsel failed to raise in a posttrial motion that a juror who fell asleep was allowed

to continue to serve despite the juror's informing the court of a sleep apnea condition; and (8) counsel

failed to present an expert witness on defendant's behalf.

On June 24, 2008, defendant also filed a pro se motion for a judgment n.o.v. or alternatively

for a new trial. In that motion, defendant made similar allegations of ineffective assistance of counsel.

On June 25, 2008, defense counsel appeared but defendant was not in court. Defense counsel was

unaware of the pro se motions. The court stated that it "admonished the Defendant, so [his motions]

will not be considered by the Court. [They are] untimely." The court then heard the motion to

reduce his sentences. It continued the matter so it could consider the law. On August 1, 2008, the

court stated that it believed that it could sentence defendant for both reckless homicide and failing

to report an accident because those were two acts. It believed that the first act was the reckless

homicide and that the second act was failing to report. The court therefore denied the motion.

Defendant timely appealed.

II. ANALYSIS

On appeal, defendant makes several arguments, some of which the State concedes. We first

briefly address those conceded points.

A. Sufficiency of the Evidence and Lesser Included Offenses

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Counts I through IV charged defendant with failing to report the accident within one-half hour

of the accident, pursuant to section 11--401(b) of the Vehicle Code. Defendant argues that the State

was required to prove that: (1) defendant was the driver of a vehicle involved in the accident; (2) the

accident resulted in a death or personal injury; (3) he knew the accident occurred; (4) he knew the

accident involved another person; (5) he failed to immediately stop and remain at the scene until he

performed his duty to give information and render aid; and (6) he failed to report the accident within

one-half hour after the accident, at a nearby police station or sheriff's office. Defendant does not

challenge the evidence concerning whether he was the driver, whether the accident involved personal

injury or death, whether he knew an accident occurred that involved other people, or whether he

failed to stop and remain at the scene. Defendant does argue that the State failed to establish the sixth

element: that he failed to report the accident within one-half hour after the accident. Further, he

points to IPI Criminal 4th No. 23.07 and IPI Criminal 4th No. 23.08, which include the element of

reporting the accident within one-half hour, as evidence that the sixth element was required to be

proven and should have been provided to the jury in the instructions. The State concedes that it did

not prove this element. Accordingly, defendant argues that we should reverse his four convictions

of Class 2 and Class 3 offenses as defined by section 11--401(b) and enter convictions of the lesser

included Class 4 offense of leaving the scene of an accident, as defined by section 11--401(a) of the

Vehicle Code.

When reviewing the sufficiency of the evidence, the reviewing court must determine whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. People v. DeFilippo,

235 Ill. 2d 377, 384-85 (2009). The critical inquiry on review is not simply whether the jury was

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properly instructed but whether the record evidence could reasonably support a finding of guilt

beyond a reasonable doubt. People v. Wheeler, 226 Ill. 2d 92, 114 (2007). A conviction will be

reversed where the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a

reasonable doubt of the defendant's guilt. Wheeler, 226 Ill. 2d at 115.

Section 11--401(a) of the Vehicle Code provides:

"The driver of any vehicle involved in a motor vehicle accident resulting in personal

injury to or death of any person shall immediately stop such vehicle at the scene of such

accident, or as close thereto as possible and shall then forthwith return to, and in every event

shall remain at the scene of the accident until the requirements of Section 11--403 have been

fulfilled. Every such stop shall be made without obstructing traffic more than is necessary."

625 ILCS 5/11--401(a) (West 2006).

Section 11--401(b) provides:

"Any person who has failed to stop or to comply with the requirements of paragraph

(a) shall, as soon as possible but in no case later than one-half hour after such motor vehicle

accident, or, if hospitalized and incapacitated from reporting at any time during such period,

as soon as possible but in no case later than one-half hour after being discharged from the

hospital, report the place of the accident, the date, the approximate time, the driver's name

and address, the registration number of the vehicle driven, and the names of all other

occupants of such vehicle, at a police station or sheriff's office near the place where such

accident occurred. No report made as required under this paragraph shall be used, directly

or indirectly, as a basis for the prosecution of any violation of paragraph (a)." 625 ILCS

5/11--401(b) (West 2006).

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Section 11--401(c) provides that any person failing to comply with section 11--401(a) shall

be guilty of a Class 4 felony. 625 ILCS 5/11--401(c) (West 2006). Section 11--401(d) provides that

any person failing to comply with section 11--401(b) shall be guilty of a Class 3 felony if the accident

does not result in the death of any person. If a death is involved, then the person shall be guilty of

a Class 2 felony, for which the person, if sentenced to a term of imprisonment, shall be sentenced to

a term of not less than 3 years and not more than 14 years. 625 ILCS 5/11--401(d) (West 2006).

In this case, defendant was indicted for violating section 11--401(b), and we agree with the

parties that the State failed to present any evidence that defendant failed to report the accident within

one-half hour of the accident, which was a required element to support a section 11--401(b)

conviction. Further, the State did not address in any arguments defendant's failure to report the

accident within one-half hour of the accident. Additionally, the instructions given to the jury did not

address this element. Therefore, we reverse those convictions on counts I through IV and enter Class

4 convictions of violating section 11--401(a), the lesser included offense. See People v. Rowell, 229

Ill. 2d 82, 97-98 (2008) (holding that a defendant may be convicted of an offense not expressly

included in the charging instrument if that offense is a lesser included offense of the charged crime;

reviewing court has authority under Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)) to

reduce the degree of the offense when the evidence fails to prove beyond a reasonable doubt an

element of the greater offense).

B. One Act, One Crime

Defendant argues that because all four convictions of leaving the scene of an accident arose

out of a single physical act, the trial court erred in convicting and sentencing defendant on all four

counts. Specifically, defendant argues that his convictions on counts II, III, and IV should be

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vacated. Defendant also argues that although this issue was not raised in the trial court, the plain-

error rule permits review. The State concedes on these points, and we agree.

Whether a defendant was improperly convicted of multiple crimes based on the same act is

a question of law, which we review de novo. People v. Lee, 325 Ill. App. 3d 643, 652 (2001). An

alleged violation of the one-act, one-crime rule is reviewable under the plain-error doctrine because

the defendant's convictions and sentences affect his substantial rights. People v. Carter, 213 Ill. 2d

295, 299 (2004). Therefore, we agree with the parties that we may review this issue despite the fact

that defendant failed to raise it in the trial court.

The supreme court established the one-act, one-crime rule in People v. King, 66 Ill. 2d 551

(1977). King provided that a criminal defendant may not be convicted of, or sentenced for, more than

one offense carved from a single physical act. King, 66 Ill. 2d at 566. "Multiple convictions and

concurrent sentences should be permitted in all other cases where a defendant has committed several

acts, despite the interrelationship of those acts." King, 66 Ill. 2d at 566. "Act" is intended to mean

any "overt or outward manifestation which will support a different offense." King, 66 Ill. 2d at 566.

In People v. Sleboda, 166 Ill. App. 3d 42, 44 (1988), the defendant was indicted on three

counts of leaving the scene of an accident and three counts of reckless homicide. The defendant was

found guilty and was sentenced to concurrent terms of 364 days for each leaving-the-scene-of-an-

accident conviction and four years for each reckless homicide conviction. Sleboda, 166 Ill. App. 3d

at 44. The defendant argued that the trial court erred in entering judgment on three convictions of

leaving the scene of an accident under section 11--401(a).1 Sleboda, 166 Ill. App. 3d at 57. The

1
Although section 11--401 has been amended since Sleboda, the changes do not affect the

holding in Sleboda.

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court agreed, finding that the statute indicated that an individual could be convicted only once for

leaving the scene of an accident, since the focus was on remaining at the scene of the accident.

Sleboda, 166 Ill. App. 3d at 57-58. The court focused on the fact that section 11--401 requires that

the driver fulfill obligations under section 11--403, which refers to " 'persons entitled to

information,' " and found that the statute recognizes that there may be several persons injured in an

accident. Sleboda, 166 Ill. App. 3d at 58, quoting Ill. Rev. Stat. 1981, ch. 95½, par. 11--403.

However, "while there may be several persons injured in an accident, there is only one accident scene

at which the driver has a duty to remain." Sleboda, 166 Ill. App. 3d at 58.

We agree with Sleboda. Section 11--403 states that the driver of any vehicle involved in an

accident resulting in injury or death to any person shall provide the necessary information to the

"person struck or the driver or occupant" of the other vehicle and shall render assistance to any

person injured. 625 ILCS 5/11--403 (West 2006). Section 11--403 further states that "[i]f none of

the persons entitled to information pursuant to this Section is in condition to receive and understand

such information and if no police officer is present, such driver after rendering reasonable assistance

shall forthwith report such motor vehicle accident at the nearest office of a duly authorized police

authority, disclosing the information required by this Section." 625 ILCS 5/11--403 (West 2006).

Further, there is only one accident scene, despite the number of injured or dead, for a defendant to

leave. Like in Sleboda, there is no dispute that only one collision occurred in this case and, thus, only

one scene from which defendant left. Counts I through IV of defendant's convictions are based on

the same physical act of leaving the scene of an accident. Therefore, we agree with the parties and

vacate defendant's convictions on counts II through IV, as they violate the one-act, one-crime rule

annunciated in King, and we remand the cause for resentencing.

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C. Sentencing

Because we agreed with defendant's arguments and reduced his Class 2 (failing to report an

accident involving death) and Class 3 (failing to report an accident involving injury) convictions to

one Class 4 conviction (leaving the scene of an accident involving a death), we need not address

whether the trial court erred in sentencing him to an extended term for reckless homicide, which is

a Class 3 offense. Defendant concedes that once we reduce his other convictions to Class 4, the

extended term on the reckless homicide conviction is proper because then the reckless homicide is

the most serious offense.

Regardless of the extended-term sentence issue, defendant argues that the trial court lacked

statutory authority to order that he serve 85% of the reckless homicide sentence. Section 3--6--

3(a)(2.1) of the Unified Code of Corrections (730 ILCS 5/3--6--3(a)(2.1) (West 2006)) provides:

"For all offenses *** other than the offense of reckless homicide as defined in

subsection (e) of Section 9--3 of the Criminal Code of 1961 committed on or after January

1, 1999, *** the rules and regulations shall provide that a prisoner who is serving a term of

imprisonment shall receive one day of good conduct credit for each day of his or her sentence

of imprisonment or recommitment under Section 3--3--9. Each day of good conduct credit

shall reduce by one day the prisoner's period of imprisonment or recommitment under Section

3--3--9."

Section 3--6--3(a)(2.3) of the Unified Code of Corrections (730 ILCS 5/3--6--3(a)(2.3) (West 2006))

provides:

"The rules and regulations on early release shall provide that a prisoner who is serving

a sentence for reckless homicide as defined in subsection (e) of Section 9--3 of the Criminal

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Code of 1961 committed on or after January 1, 1999, *** shall receive no more than 4.5 days

of good conduct credit for each month of his or her sentence of imprisonment."

Defendant was convicted of reckless homicide pursuant to section 9--3(a) of the Criminal Code,

which applies to individuals who kill using a motor vehicle. 720 ILCS 5/9--3(a) (West 2006). Thus,

defendant is entitled to one day of good-conduct credit for each day of his sentence, pursuant to

section 3--6--3(a)(2.1) of the Unified Code of Corrections. 730 ILCS 5/3--6--3(a)(2.1) (West 2006).

Moreover, subsection (e) of section 9--3 of the Criminal Code has been deleted and has read "blank"

since 2003. The fact that defendant did not raise the issue in the trial court does not mean that the

issue has been forfeited, as a sentence that does not conform to a statutory requirement is void and

may be challenged at any time. See People v. Arna, 168 Ill. 2d 107, 113 (1995). The State concedes

that ordering defendant to serve 85% of the reckless homicide sentence was improper. Accordingly,

we vacate the order imposing that defendant serve 85% of the reckless homicide sentence and we

order that, upon remand, defendant receive one day of good-conduct credit for each day of his

imprisonment, pursuant to section 3--6--3(a)(2.1) of the Unified Code of Corrections.

D. Rule 431(b)

On a point that is not conceded by the State, defendant argues that the trial court did not

comply with Rule 431(b) requirements during voir dire. Defendant argues that because of the

violation, he is entitled to a new trial. The State argues that the trial court's failure to fully comply

with Rule 431(b) was not so serious that defendant was deprived of a fair trial.

Defendant neither objected at the time of voir dire nor raised this issue in his posttrial motion.

Regardless, we may review a forfeited error under the plain-error rule if either the evidence is so

closely balanced that the jury's verdict may have resulted from the error and not the evidence or the

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error was so serious that the defendant was denied a substantial right and thus a fair trial. People v.

Calabrese, 398 Ill. App. 3d 98, 119 (2010). We must first determine whether an error occurred.

People v. Blair, 395 Ill. App. 3d 465, 467 (2009).

Rule 431(b) provides:

"The court shall ask each potential juror, individually or in a group, whether that juror

understands and accepts the following principles: (1) that the defendant is presumed innocent

of the charge(s) against him or her; (2) that before a defendant can be convicted the State

must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not

required to offer any evidence on his or her own behalf; and (4) that the defendant's failure

to testify cannot be held against him or her; however, no inquiry of a prospective juror shall

be made into the defendant's failure to testify when the defendant objects.

The court's method of inquiry shall provide each juror an opportunity to respond to

specific questions concerning the principles set out in this section." Official Reports Advance

Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.2

Here, the trial court addressed each of the four principles when it broadly addressed all

potential jurors. In the individual questioning, however, the trial court failed to address the fourth

principle, that defendant's failure to testify could not be held against him. Such failure was error.

We next determine whether we may review this forfeited error by determining whether (1)

the evidence is so closely balanced that the jury's guilty verdict may have resulted from the error and

not the evidence, or (2) the error is so serious that defendant was denied a substantial right and thus

2
Defendant did not object on the fourth principle relating to his right not to testify; therefore,

we proceed on the premise that the trial court was required to admonish jurors on all four principles.

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a fair trial. Blair, 395 Ill. App. 3d at 467. As the supreme court explained in People v. Herron, 215

Ill. 2d 167, 186 (2005), "the closely balanced evidence prong of the plain-error test guards against

errors that could lead to the conviction of an innocent person *** while the substantial rights prong

guards against errors that erode the integrity of the judicial process and undermine the fairness of the

defendant's trial." Defendant does not argue that the closely-balanced-evidence prong applies but

rather argues only that the second prong applies. Defendant relies on Blair, People v. Graham, 393

Ill. App. 3d 268 (2009), and People v. Blanton, 396 Ill. App. 3d 230 (2009), for his position that the

trial court's failure to comply with Rule 431(b) was an error so substantial that he was denied a fair

trial and that thus reversal is warranted. The State admits that the trial court did not fully comply

with Rule 431(b) and thus admits that error occurred. However, the State counters that the plain-

error rule does not apply because the trial court's failure to strictly comply with Rule 431(b) does not

constitute an error so serious that defendant was denied a fair trial. Thus, the State submits that

reversal is not warranted, relying on People v. Glasper, 234 Ill. 2d 173 (2009), People v. Russell, 395

Ill. App. 3d 926 (2009), and People v. Magallanes, 397 Ill. App. 3d 72 (2009).

In People v. Zehr, 103 Ill. 2d 472, 477-78 (1984), the supreme court held that a trial court

abused its discretion in refusing defense counsel's request to ask specific questions in voir dire. Rule

431(b) embodies the four principles addressed in Zehr and, prior to the 2007 amendment, required

a trial court to ask about the Zehr principles during voir dire only when requested by the defendant.

See 177 Ill. 2d R. 431(b). Effective May 1, 2007, Rule 431(b) was amended to impose upon the trial

court a sua sponte duty to ask jurors about the Zehr principles.

Glasper dealt with the pre-2007 version of Rule 431(b), in which the defendant was required

to ask the court to question the jurors about the Zehr principles during voir dire. Defense counsel

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No. 2--08--0745

in Glasper asked the court to question the jurors and specifically reminded the court to ask about the

defendant's right not to testify. Glasper, 234 Ill. 2d at 188. The court responded that it did not need

to ask about that because that principle would be given to them later. Glasper, 234 Ill. 2d at 188.

The court provided all venire members the four Zehr principles but, when questioning individual

venire members, the court did not ask them if they accepted that the defendant's decision not to testify

could not influence their verdict. Glasper, 234 Ill. 2d at 189.

The question in Glasper was whether the trial court's error in violating a supreme court rule

required the reviewing court to presume prejudice and automatically reverse the defendant's

conviction, or whether the error was subject to harmless-error analysis. Glasper, 234 Ill. 2d at 189.

The supreme court stated that the violation of a supreme court rule does not mandate reversal in

every case. Glasper, 234 Ill. 2d at 193. In part, the supreme court cited to Rivera v. Illinois, 556

U.S. ___, 173 L. Ed. 2d 320, 330-31, 129 S. Ct. 1446, 1455 (2009), which affirmed its decision in

People v. Rivera, 227 Ill. 2d 1, 14 (2007), to apply the harmless-error doctrine to errors stemming

from the violation of its rule regarding peremptory challenges. See Rivera, 556 U.S. at ___, 173 L.

Ed. at 330-31, 129 S. Ct. at 1455 (Supreme Court typically designates an error as "structural" and

requiring automatic reversal only when the error necessarily renders a criminal trial fundamentally

unfair or an unreliable vehicle for determining guilt or innocence; a violation of a state-law-created

right, such as the peremptory challenges at issue in Rivera, did not necessarily constitute a structural

error and the Illinois Supreme Court did not err in applying the harmless-error doctrine).

Likewise, the Glasper court determined that the defendant's constitutional rights were not

compromised by the trial court's Rule 431(b) violation, as a defendant's "right" to such questioning

in Illinois courts is the product of the supreme court's inherent power to make rules regulating the

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conduct of the trial courts. Glasper, 234 Ill. 2d at 196. Similar questioning as required in Rule

431(b), the supreme court noted, was not uniformly required in other state and federal jurisdictions.

Glasper, 234 Ill. 2d at 198-99. Further, automatic reversal was not required in other cases where a

defendant's constitutional rights had been affected. See Glasper, 234 Ill. 2d at 198 (identifying cases

where automatic reversal was not required where prosecution made erroneous reference to a

defendant's decision to exercise his constitutional right to remain silent). Thus, the Glasper court

determined that the trial court's error in failing to question the jury as required by Rule 431(b) did not

rise to the level of structural error, and it stated, "we decline to find that a violation of Rule 431(b)

is per se reversible in light of the language and history of the rule." Glasper, 234 Ill. 2d at 200.

However, the Glasper court limited its holding to the version of Rule 431(b) in effect at the

time of its defendant's trial, and it recognized that under that version, a trial court was not mandated

to question jurors on the Zehr principles unless requested by the defendant. Glasper, 234 Ill. 2d at

200. It stated that its holding would not necessarily apply to subsequent versions of the rule and that

its holding was not that a Rule 431(b) violation could never result in reversible error. Glasper, 234

Ill. 2d at 200. The supreme court, under its facts, had merely determined that there was no evidence

that the trial court's Rule 431(b) violation led to the defendant being tried before a biased tribunal,

especially given that the jury had been admonished and instructed against forming an adverse

inference against the defendant based on his decision not to testify. Glasper, 234 Ill. 2d at 200-01.

We first note that Glasper involved harmless-error analysis, and not plain-error analysis, which

is implicated in this case.3 Naturally, the latter language in Glasper has led the appellate courts

3
"A plain-error analysis applies where the defendant fails to make a timely objection in the

trial court, while a harmless-error analysis applies where the defendant timely objects to the error."

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No. 2--08--0745

addressing the subsequent version of Rule 431(b) to inconsistent outcomes on the question of

whether a violation of the amended rule results in reversal. We further note that People v.

Thompson, No. 1--07--2891 (2009) (unpublished order under Supreme Court 23), appeal allowed,

234 Ill. 2d 547 (2009), is currently pending before the supreme court. In Thompson, the First District

held that a violation of Rule 431(b) constituted plain error under the second prong and triggered

automatic reversal. See People v. Wheeler, No. 1--08--1370, slip op. at 14 (March 31, 2010). As

the supreme court has yet to issue an opinion in Thompson or otherwise provide more guidance on

this issue, we hold that the trial court's violation of Rule 431(b) was not plain error under the second

prong.

In Wheeler, slip op. at 9-10, the First District determined that the trial court violated Rule

431(b) by failing to individually question jurors during voir dire, though it had mentioned all four Zehr

principles before the questioning commenced. The defendant did not raise the issue in a posttrial

motion and argued that the appellate court could review under the second prong of the plain-error

doctrine. The Wheeler court recognized two lines of cases on the issue. Wheeler, slip op. at 13-14.

The Wheeler court found that the reasoning in Glasper applied with equal force "against a

presumption-of-prejudice finding that a second-prong plain error would trigger in this case."

Wheeler, slip op. at 19. The court explained that it found that the defendant had failed to persuade

it to find that full compliance with the 2007 version of Rule 431(b) was indispensable to a fair trial

(second-prong plain error) when the trial court's erroneous denial of the defendant's request in

Glasper was not indispensable to a fair trial under the similar harmless-error analysis. Wheeler, slip

op. at 19-20. Thus, the court held that the error did not trigger automatic reversal. Wheeler, slip op.

People v. Roberson, No. 4--07--0864, slip op. at 6 (May 13, 2010).

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No. 2--08--0745

at 20.

We agree with Wheeler and similar cases that have determined that a Rule 431(b) violation

does not always constitute an error so serious that the defendant was deprived of a fair trial. See

People v. Haynes, No. 1--08--0805 (March 30, 2010); People v. Nugen, No. 1--07--2506 (March

8, 2010); People v. Hammonds, No. 1--08--0194 (February 11, 2010); Magallanes, 397 Ill. App. 3d

72; People v. Chester, 396 Ill. App. 3d 1067 (2010); People v. Amerman, 396 Ill. App. 3d 586

(2009); People v. Alexander, 396 Ill. App. 3d 563 (2009) (finding automatic reversal not warranted

under plain-error analysis for violations of amended Rule 431(b)). The Magallanes court explained

that the same type of inquiry is involved in both plain-error and harmless-error analyses with the

difference being that the burden of persuasion rests with the defendant in the former and the State in

the latter. Magallanes, 397 Ill. App. 3d at 99. We find persuasive the Magallanes court's commentary

that it was incongruous that the defendant in Glasper, who did everything in his power to address the

error, would not be entitled to a new trial, but that a defendant who failed to object would be entitled

to a new trial. Magallanes, 397 Ill. App. 3d at 99. Accordingly, in light of the facts of this case, we

decline to follow this district's Blair decision and similar cases where reversal was granted. See

People v. Anderson, No. 1--07--1768 (March 29, 2010); People v. Yusuf, No. 4--08--0034 (February

4, 2010); Blanton, 396 Ill. App. 3d 230; Graham, 393 Ill. App. 3d 268 (violation of amended Rule

431(b) triggered reversal under second prong of plain-error doctrine).

In Blair, as here, the trial court failed to question any individual juror regarding all four Zehr

principles. This court decided that "[i]n light of the mandatory language of amended Rule 431(b) and

given the nature of the error in this case," the error "denied defendant a substantial right, undermined

the fairness of his trial, and impacted the integrity of the judicial process." Blair, 395 Ill. App. 3d at

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No. 2--08--0745

478. The Blair court reversed the defendant's conviction and remanded the matter for a new trial.

While the court did not state that every violation of Rule 431(b) should result in automatic reversal,

it found that the trial court's noncompliance with the rule compromised the defendant's right to a fair

trial even where the jury had been informed of all the Zehr principles and instructed that by law it was

obligated to follow them. The dissent in Blair argued that the majority failed to adhere to Glasper

in that the error was not structural and did not require reversal under the plain-error doctrine. Blair,

395 Ill. App. 3d at 487-88 (Schostok, J., dissenting).

We agree with Wheeler and the dissent in Blair that the 2007 amendment did not alter the

right to Zehr questioning during voir dire, a right that Glasper considered to be "neither 'a

fundamental right, [nor] even a constitutional protection.' " Wheeler, slip op. at 19, quoting Glasper,

234 Ill. 2d at 193. We too find that the Glasper reasoning applies to the current version of Rule

431(b) with equal force and that a similar analysis under the plain-error doctrine as under harmless-

error analysis is required before reversing a defendant's conviction. The similarity in the analyses

being that either the State (harmless-error analysis) or the defendant (plain-error analysis) must

establish that the respective error was or was not so prejudicial that the defendant was denied a fair

trial. See People v. Thurow, 203 Ill. 2d 352, 363 (2003). Acknowledging the diverging opinions on

this issue, we maintain that the purpose of Rule 431(b) is not diminished by our finding that the

violation in this case does not satisfy the second prong of the plain-error doctrine. In cases where

the facts suggest that the defendant was tried before a biased jury, a Rule 431(b) violation may still

result in reversal under the second prong of the plain-error analysis, as the Glasper court indicated

was likewise possible under a harmless-error analysis. See People v. Schaefer, 398 Ill. App. 3d 963

(2010) (unlike in Blair, where jurors were admonished on and instructed to follow the Zehr principles,

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the prospective jurors in Schaefer were not admonished as to the Zehr principles, were not

individually questioned, and were not provided such instructions prior to deliberating; thus, the

defendant was entitled to reversal under the second prong of the plain-error doctrine).

In this case, defendant does not argue, nor do we find any evidence in the record to support,

that he was prejudiced by the trial court's failure to individually ask prospective jurors whether they

accepted the principle that in delivering a verdict they could not use against him defendant's decision

not to testify. The record shows that prospective jurors were informed of all four Zehr principles

before individual questioning commenced. When individually questioning each juror, the trial court

either reminded the juror of the principles of law it spoke of earlier or admonished the juror that

defendant did not have to testify or both. Each juror responded that he or she understood and

accepted these principles. Further, the jury was instructed verbally and given IPI Criminal 4th No.

2.04, which provided that in arriving at the verdict it must not consider in any way the fact that

defendant did not testify. Accordingly, we find that the second prong of the plain error analysis, that

the error in this case was so serious that defendant was denied a fair trial, was not met.

E. Motion Alleging Ineffective Assistance of Counsel

Defendant's final claim on appeal is that the trial court erred in failing to inquire into his

allegations of ineffective assistance of counsel. Defendant filed a pro se motion entitled "Motion for

Appointment of Counsel Outside the Office of the Lake County Public Defender," in which he made

several allegations of ineffective assistance by his trial counsel. He raised similar claims in a pro se

motion for a new trial. On June 25, 2008, without hearing evidence or argument or making any

comment on defendant's allegations, the trial court found the pro se motions untimely and refused to

consider them. The State contends that the motions were untimely, having been filed 119 days after

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the verdict and 40 days after the final judgment. Defendant argues that when a defendant files a pro

se challenge to trial counsel's performance, the trial court is to inquire into and examine the matters

underlying the defendant's claims.

When a defendant is represented by counsel, he generally has no authority to file pro se

motions, and the court should not consider them. People v. Serio, 357 Ill. App. 3d 806, 815 (2005).

Defendants have the right either to have counsel represent them or to represent themselves, but they

do not have the right to both. Serio, 357 Ill. App. 3d at 815. Therefore, a defendant represented by

counsel may not file pro se motions. Serio, 357 Ill. App. 3d at 815. An exception to this rule permits

a defendant represented by counsel to raise pro se claims of ineffective assistance of counsel if they

include supporting facts and specific claims. Serio, 357 Ill. App. 3d at 815. Here, we conclude that

defendant's claims of ineffective assistance of counsel in his pro se motions were sufficiently detailed

so as to fall into this exception.

We next consider whether defendant's pro se motions were untimely, as the State contends.

Defendant argues that the trial court had continuing jurisdiction because defendant's motion to reduce

his sentences, which was filed by counsel, was pending, and thus the pro se motions were timely. We

agree with the State, as defendant's pro se motions were filed beyond 30 days of the final sentencing

order. The trial court did not state it did not have jurisdiction to hear the motions but rather denied

the motions as untimely, which was not error. Despite the fact that defendant's motion to reduce his

sentences was pending, the purpose of a hearing conducted pursuant to People v. Krankel, 102 Ill.

2d 181 (1984), is to prevent a situation where defense counsel would have to argue his own

ineffectiveness at trial in a motion for a new trial. See People v. Moore, 207 Ill. 2d 68, 78 (2003).

That risk was not present in this case, where defendant's motion for a new trial had already been

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No. 2--08--0745

argued and denied prior to his allegations. Accordingly, the trial court was not obligated to further

inquire into defendant's allegations of ineffective assistance of counsel.

We do note that the only allegation pertaining to sentencing was defendant's claim that

counsel failed to challenge the order that made his sentences consecutive, which arguably could have

presented a conflict for counsel. However, as the State points out, section 5--8--4(a)(iv) of the

Unified Code of Corrections (730 ILCS 5/5--8--4(a)(iv) (West 2006)) mandates that a trial judge

impose consecutive sentences if the defendant was convicted of leaving the scene of an accident

involving death or personal injury and of reckless homicide. To the extent that the trial court may

have been obligated to inquire into that claim and appoint new counsel to argue the motion to reduce

the sentences, we find that error to be harmless since there was no reason for counsel to object to this

portion of the sentence. See Moore, 207 Ill. 2d at 80 ("A trial court's failure to appoint new counsel

to argue a defendant's pro se posttrial motion claiming ineffective assistance of counsel can be

harmless beyond a reasonable doubt"). We note that defendant may still make his claims of

ineffective assistance of counsel in a postconviction petition. See 725 ILCS 5/122--1 et seq. (West

2008).

III. CONCLUSION

In conclusion, we (1) vacate defendant's convictions on counts II, III, and IV, as they violate

the one-act, one-crime rule; (2) reduce his conviction on count I from a Class 2 violation of section

11--401(b) of the Vehicle Code to a Class 4 violation of section 11--401(a) of the Vehicle Code; (3)

vacate the order that defendant serve 85% of his reckless homicide sentence and order that upon

remand defendant receive one day of good-conduct credit for each day of imprisonment, pursuant

to section 3--6--3(a)(2.1) of the Unified Code of Corrections (730 ILCS 5/3--6--3(a)(2.1) (West

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No. 2--08--0745

2006)); (4) deny defendant's request for a new trial for the trial court's Rule 431(b) violation as that

error was forfeited and not reversible under the plain-error rule; and (5) affirm the trial court's

dismissal as untimely of defendant's motions alleging ineffective assistance of counsel. We remand

the cause for resentencing.

Affirmed in part and vacated in part; cause remanded.

BURKE, J., concurs.

JUSTICE HUDSON, dissenting:

The majority acknowledges that the trial court's failure to comply with Supreme Court Rule

431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007)

constituted error, but concludes that this error does not require reversal. For the reasons set forth

in People v. Schaefer, 398 Ill. App. 3d 963 (2010), and People v. Blair, 395 Ill. App. 3d 465 (2009),

I respectfully dissent.

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