Digitally signed by
Reporter of Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2017.08.24
09:05:34 -05'00'
People v. Avelar, 2017 IL App (4th) 150442
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LUIS H. AVELAR, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-15-0442
Filed July 12, 2017
Decision Under Appeal from the Circuit Court of Vermilion County, No. 14-CM-118;
Review the Hon. Mark S. Goodwin, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Akshay Mathew, of
Appeal State Appellate Defender’s Office, of Springfield, for appellant.
Jacqueline M. Lacy, State’s Attorney, of Danville (Patrick Delfino,
David J. Robinson, and Luke McNeill, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Harris and Appleton concurred in the judgment and opinion.
OPINION
¶1 In January 2015, the State charged defendant, Luis H. Avelar, with three counts of
violation of an order of protection. The order of protection at issue prohibited defendant from
being within 200 feet of his ex-girlfriend, L.H., and their children, E.A., P.A., and O.A. At the
March 2015 jury trial, the evidence showed that defendant picked up two of his children from
L.H.’s home in Watseka and took them to Hoopeston, where defendant lived. Defendant then
called L.H. and told her that he and the children were at the McDonald’s in Hoopeston. When
L.H. went to McDonald’s to pick up the kids, she and defendant argued. Police later arrested
defendant for violating the order of protection. The jury found defendant guilty of all three
counts of violating the order of protection. The trial court later sentenced defendant to two
years’ probation.
¶2 On appeal, defendant argues that two of his convictions for violation of an order of
protection must be vacated because they violate the one-act, one-crime doctrine. We disagree
and affirm.
¶3 I. BACKGROUND
¶4 Because the parties do not dispute the facts of this case, we provide only the factual
background necessary to place defendant’s claim in context.
¶5 In August 2013, the trial court entered a plenary order of protection against defendant. The
petitioner was L.H.—defendant’s ex-girlfriend and the mother of three of his children. The
petition sought to protect L.H. and L.H.’s daughter—S.M.—along with the children of
defendant and L.H.—E.A., P.A., and O.A. The order of protection required, among other
things, that defendant stay 200 feet from (1) L.H., (2) S.M., (3) E.A., (4) P.A., and (5) O.A.
The order was effective until August 2015.
¶6 In February 2014, the State filed an information against defendant, which the State
amended in January 2015. The amended information charged defendant with three counts of
violating an order of protection (720 ILCS 5/12-3.4(a)(1)(i) (West 2014)), alleging that
defendant “had contact” with L.H., E.A., and P.A., respectively.
¶7 At the March 2015 jury trial, the evidence showed that on February 16, 2014, defendant
picked up E.A. and P.A. from their home in Watseka, where they lived with L.H., and took
them to Hoopeston, where defendant lived. Defendant later called L.H., told her he was with
the children, and asked her to meet him at the McDonald’s in Hoopeston so L.H. could take the
children back to her home. L.H. met defendant and the children at McDonald’s, where an
argument began. Police were called, and defendant was arrested for violating the order of
protection. During closing argument, the State argued that defendant had violated the order of
protection three times, in that “defendant was there at the *** McDonald’s *** in Hoopeston.
*** [H]e came and got the kids and drove ’em, drove ’em there.”
¶8 The jury found defendant guilty of all three counts of violating an order of protection. The
trial court sentenced him to two years’ probation.
¶9 This appeal followed.
-2-
¶ 10 II. ANALYSIS
¶ 11 Defendant argues that we should vacate two of his convictions for violating an order of
protection because they violate the one-act, one-crime doctrine. For the reasons that follow, we
disagree and affirm.
¶ 12 A. Plain Error
¶ 13 Defendant concedes that he forfeited his argument by failing to raise it in the trial court.
The parties agree that a forfeited one-act, one-crime claim is reviewable under the second
prong of the plain-error doctrine, as a clear or obvious error “so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process.” People v.
Artis, 232 Ill. 2d 156, 165, 902 N.E.2d 677, 683 (2009). In this case, we choose to determine
first whether a one-act, one-crime violation occurred at all. See People v. Vesey, 2011 IL App
(3d) 090570, ¶ 21, 957 N.E.2d 1253 (explaining that although courts generally determine, as
the first step of a plain-error analysis, whether error occurred at all, courts are not bound to
conduct the analysis in that sequence).
¶ 14 B. Statutory Language
¶ 15 When analyzing whether a one-act, one-crime violation occurred, a court should first
answer the prerequisite question of whether the statutory language in question permitted
multiple convictions in the manner alleged and proved by the State. See People v. Almond,
2015 IL 113817, ¶ 33, 32 N.E.3d 535 (“We must first determine whether the [unlawful use of a
weapon (UUW)] by a felon statute authorizes separate offenses to be charged for the
simultaneous possession of a firearm and ammunition ***.”).
¶ 16 The defendant in Almond argued that his multiple weapons convictions—(1) armed
habitual criminal for possession of a firearm and (2) UUW by a felon for possession of
ammunition inside that firearm (720 ILCS 5/24-1.1(e) (West 2008))—violated the one-act,
one-crime doctrine. Almond, 2015 IL 113817, ¶ 32, 32 N.E.3d 535. As the court explained,
“ ‘one-act, one-crime principles apply only if the statute is construed as permitting multiple
convictions for simultaneous possession.’ ” Id. ¶ 33 (quoting People v. Carter, 213 Ill. 2d 295,
301, 821 N.E.2d 233, 237 (2004)). The UUW by a felon statute provided that “[t]he possession
of each firearm or firearm ammunition in violation of this Section constitutes a single and
separate violation.” 720 ILCS 5/24-1.1(e) (West 2008). Relying on that language, the Almond
court held that the UUW by a felon statute “authorizes separate convictions for the
simultaneous possession of a firearm and ammunition in a single loaded firearm.” Almond,
2015 IL 113817, ¶ 43, 32 N.E.3d 535. The court then went on to determine that the multiple
convictions were supported by separate acts and, therefore, no one-act, one-crime violation
occurred. Id. ¶ 50.
¶ 17 In Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 808 N.E.2d 525 (2004), the Second
District engaged in a similar process of statutory interpretation, despite describing that process
somewhat differently than did the supreme court in Almond. In Rich, the defendant was
charged with multiple violations of Sugar Grove’s noise ordinance (Sugar Grove Village Code
§ 4-5-1 (1998)). Rich, 347 Ill. App. 3d at 691, 808 N.E.2d at 528. The noise ordinance
prohibited excessive noise that annoyed or disturbed “others within the limits of the Village.”
Sugar Grove Village Code § 4-5-1 (1998). The ordinance provided further that “[e]ach day
such violation is committed or permitted to continue shall constitute a separate offense and
-3-
shall be punishable as such under this Chapter” (Sugar Grove Village Code § 4-5-4 (1998)).
The charges levied against the defendant included multiple violations of the noise ordinance
based on separate victims who were annoyed by noise that was created on the same day. Rich,
347 Ill. App. 3d at 692, 808 N.E.2d at 528. For instance, “[t]he defendant was convicted of
violating the ordinance on June 15, 2002, at 8:39 p.m., 9 p.m., 10:10 p.m., and 10:16 p.m.” Id.
at 698, 808 N.E.2d at 533.
¶ 18 The Rich court held that the language of the noise ordinance prohibited multiple violations
for intermittent noise created on the same day. Id. As the ordinance provided, “[e]ach day such
a violation is committed or permitted to continue shall constitute a separate offense.” Sugar
Grove Village Code § 4-5-4 (1998). Therefore, the court determined that noise made on the
same day could support only one conviction under the noise ordinance. The Rich court further
held that the ordinance’s prohibition of excessive noise that disturbs “others within the limits
of the Village” (Suger Grove Village Code § 4-5-1 (1998)) meant that a single violation of the
noise ordinance contemplates multiple victims and that the ordinance therefore does not
support multiple convictions for multiple victims. Rich, 347 Ill. App. 3d at 698-99, 808 N.E.2d
at 533-34.
¶ 19 The Rich court described its holding in terms of the one-act, one-crime doctrine, holding
that “[b]y the terms of the Village’s ordinance, the defendant’s convictions were based on the
same physical act.” Id. at 698, 808 N.E.2d at 533. However, in light of the supreme court’s
subsequent analysis in Almond, we find it more accurate to read Rich as holding that the
ordinance in question prohibited the State from charging multiple violations as it did and as
avoiding the question of whether the multiple convictions were based on “an act” in violation
of the one-act, one-crime doctrine.
¶ 20 In this case, defendant was charged with multiple counts of violation of an order of
protection (720 ILCS 5/12-3.4(a)(1)(i) (West 2014)). The statute provides that a person
commits a violation of an order of protection when “[h]e or she knowingly commits an act
which was prohibited by a court *** in violation of” “a valid order of protection.” Id. Unlike in
Almond and Rich, this statute contains no explicit language about whether multiple,
simultaneous violations of a single order of protection may be charged as multiple offenses or,
instead, must be charged as a single offense. Instead, the statute merely contemplates that an
offense occurs when a defendant commits “an act” that was in violation of a valid order of
protection. Id. We therefore hold that the language of the statute does not prohibit the State
from charging separate offenses for multiple, simultaneous violations of the same order of
protection. As a result, we proceed to analyze defendant’s claim under one-act, one-crime
principles.
¶ 21 C. One-Act, One-Crime
¶ 22 Under the one-act, one-crime doctrine, “a defendant may not be convicted of multiple
offenses based on the same physical act.” Almond, 2015 IL 113817, ¶ 47, 32 N.E.3d 535. Our
supreme court “has noted that the one-act, one-crime rule has never been viewed as a rule of
constitutional dimension.” Artis, 232 Ill. 2d at 164, 902 N.E.2d at 683; but see People v. Gray,
214 Ill. 2d 1, 6, 823 N.E.2d 555, 558 (2005) (holding that double jeopardy principles of the
federal and Illinois constitutions bar, among other things, imposing “more than one
punishment for the same offense”). An “act” is defined as “any overt or outward manifestation
-4-
that will support a separate offense.” People v. Crespo, 203 Ill. 2d 335, 341, 788 N.E.2d 1117,
1120 (2001).
¶ 23 The long-established test for determining whether a one-act, one-crime violation has
occurred involves a two-step process. First, the court should determine whether the
defendant’s conduct consists of one physical act or several acts. People v. Rodriguez, 169 Ill.
2d 183, 186, 661 N.E.2d 305, 306 (1996). If the defendant has committed only one physical
act, “[m]ultiple convictions are improper.” Id.
¶ 24 If, on the other hand, the defendant has committed multiple acts, the court should then
determine whether any of the charged offenses are lesser included offenses of another charged
offense. If so, then “multiple convictions are improper; if not, then multiple convictions may
be entered.” Id. at 186, 661 N.E.2d at 306-07. If a court determines that multiple convictions
are improper, the court should vacate the less serious offense or offenses. In re Samantha V.,
234 Ill. 2d 359, 379, 917 N.E.2d 487, 500 (2009).
¶ 25 “[T]he one-act, one-crime rule only applies to multiple convictions for acts against a single
victim.” People v. Leach, 2011 IL App (1st) 090339, ¶ 30, 952 N.E.2d 647. “Multiple
convictions are proper when there are multiple victims.” Id.; see also People v. Shum, 117 Ill.
2d 317, 363, 512 N.E.2d 1183, 1201 (1987) (“[S]eparate victims require separate convictions
and sentences.”).
¶ 26 In this case, even if we construe defendant’s alleged behavior as a single act, no one-act,
one-crime violation exists because the State charged defendant with three counts of violation
an order of protection against three different victims: L.H., E.A., and P.A. All three were
protected persons under the order of protection, and defendant violated the order of protection
as to all three. Because this case involves three separate victims, we need not determine
whether defendant’s activity as charged in this case constituted a single act or multiple acts.
¶ 27 Defendant attempts to distinguish the offense of violation of an order of protection as an
offense against the court, arguing that the offense has no “victims” and therefore cannot
support the exception to the one-act, one-crime rule for multiple victims. We disagree.
¶ 28 In support of his argument that the offense of violation of an order of protection has no
“victim,” defendant cites People v. Hardin, 2012 IL App (1st) 100682, 976 N.E.2d 1083. In
Hardin, the defendant was convicted of two counts of aggravated discharge of a firearm under
section 24-1.2(a)(4) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.2(a)(4) (West
2008)), which made it a crime to discharge a firearm in the direction of a vehicle known to be
occupied by a peace officer. Defendant argued that the one-act, one-crime doctrine prohibited
him from receiving two convictions under that subsection when he discharged a firearm
toward a vehicle only once, despite the fact that the vehicle was occupied by two peace
officers. Hardin, 2012 IL App (1st) 100682, ¶¶ 23-25, 976 N.E.2d 1083.
¶ 29 The First District agreed with the defendant and vacated one of his convictions. Id. ¶ 39. In
reaching that decision, the court rejected the State’s argument that defendant was appropriately
convicted of two counts because he fired at a vehicle containing two peace officers. Id. ¶ 27.
The court distinguished section 24-1.2(a)(4) of the Code from section 24-1.2(a)(3) of the Code,
which prohibited discharging a firearm “ ‘in the direction of a person he or she knows to be a
peace officer.’ ” (Emphasis in original.) Hardin, 2012 IL App (1st) 100682, ¶¶ 26-27, 976
N.E.2d 1083 (quoting 720 ILCS 5/24-1.2(a)(3) (West 2008)). The court reasoned that the
defendant was convicted of an offense “directed against the vehicle,” not against the officers.
-5-
Id. ¶ 31. As a result, the existence of multiple officers in the vehicle did not mean there were
multiple victims that could support multiple convictions.
¶ 30 In this case, the offense of violation of an order of protection proscribed committing “an act
which was prohibited by a court *** in violation of” “a valid order of protection.” 720 ILCS
5/12-3.4(a)(1)(i) (West 2014). Defendant committed an act that violated the order of protection
in three ways, as to three separate victims. The language of the statute contains no language
suggesting that the legislature intended to prohibit multiple convictions based on multiple
victims, in contrast to the statutory language at issue in Rich and Hardin. Therefore, because
defendant violated the protective order as to three separate people, his three convictions are not
prohibited by the one-act, one-crime doctrine. As a result, we affirm defendant’s convictions.
¶ 31 III. CONCLUSION
¶ 32 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 33 As part of our judgment, we award the State its $50 statutory assessment against defendant
as costs of this appeal. 55 ILCS 5/4-2002 (West 2016).
¶ 34 Affirmed.
-6-