specially concurring:
The majority has vacated three of defendant’s four convictions for home invasion based on one-act, one-crime principles. I agree that those convictions must be vacated and I, therefore, concur in the judgment.
The difficulty in this case has not been deciding whether three of the convictions and the sentences imposed for them were proper — it is clear that they were not. Rather, the difficulty has been how to overcome principles of waiver and forfeiture which the State has raised to forestall our correction of this clear error.
The majority has utilized a complex analysis involving plain error and violation of the constitutional principles of double jeopardy to conclude that the imposition of these sentences reflects so significantly on the integrity of our judicial system that they cannot be allowed to stand. I am in fundamental agreement with that analysis, although I am troubled by the reliance on double jeopardy inasmuch as it has not been raised by the parties either in the circuit court or in this appeal.
I write separately because I believe the supreme court has articulated an analytical basis for finding additional convictions, such as the three at issue in this case, to be void and therefore appealable without consideration of waiver, forfeiture or guilty plea. I hope to persuade the court to take that step.
Generally, a defendant’s argument is forfeited on appeal if it was not raised in the trial court. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). However, a judgment that was not authorized by statute is void, and a defendant may challenge it at any time, even where the judgment was imposed as part of a negotiated plea. People v. Brown, 225 Ill. 2d 188, 199, 866 N.E.2d 1163, 1169 (2007); People v. Palmer, 218 Ill. 2d 148, 154, 843 N.E.2d (2006).2
Under one-act, one-crime principles, more than one offense may not be carved out of a single physical act. People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). The Illinois Supreme Court has repeatedly held that, under such principles, the home invasion statute will support only a single conviction for a single entry to a residence, regardless of the number of persons present or the number of persons harmed by the defendant. See People v. Hicks, 181 Ill. 2d 541, 693 N.E.2d 373 (1998); People v. Cole, 172 Ill. 2d 85, 101-02, 665 N.E.2d 1275, 1282-83 (1996); People v. Sims, 167 Ill. 2d 483, 658 N.E.2d 413 (1995). In Cole, the supreme court cited with approval six appellate court cases concluding that “the home invasion statute will support only a single conviction in the circumstances shown here. See, e.g., People v. Palacio, 240 Ill. App. 3d 1078, 1088-89[, 607 N.E.2d 1375] (1993); People v. McDarrah, 175 Ill. App. 3d 284[, 529 N.E.2d 808] (1988); People v. Parker, 166 Ill. App. 3d 123[, 519 N.E.2d 703] (1988); People v. Yarbrough, 156 Ill. App. 3d 643[, 509 N.E.2d 747] (1987); People v. Morrison, 137 Ill. App. 3d 171, 177-78[, 484 N.E.2d 329] (1985); People v. Ammons, 120 Ill. App. 3d 855[, 458 N.E.2d 1031] (1983).” Cole, 172 Ill. 2d at 101-02, 665 N.E.2d at 1283.
The Cole court stated:
“The rationale for this view is found in the legislature’s description of the elements of the offense: the home invasion statute speaks of a defendant’s entry of, or presence in, a dwelling when the defendant knows or has reason to know ‘that one or more persons is present’ and, further, of the defendant’s use or threat of force while armed ‘upon any person or persons’ in the dwelling, and of the defendant’s intentional injury of ‘any person or persons’ in the dwelling. 720 ILCS 5/12 — 11 (West 1992). These references to one or more persons in the dwelling signify that a single entry will support only a single conviction, regardless of the number of occupants. We find this reasoning persuasive, and we agree with the defendant that he cannot be convicted of more than one count of home invasion in this case. Accordingly, we must vacate one of the convictions and sentences for that offense.” Cole, 172 Ill. 2d at 102, 665 N.E.2d at 1283.
In other words, under the above rulings, the statute does not authorize multiple convictions for home invasion under such circumstances. I think it fair to restate those rulings as holding that more than one conviction for home invasion when there has been but a single entry is without statutory authority.3
Thus, I believe that because the home invasion statute does not authorize multiple convictions for a single entry to a residence, the surplus convictions are without statutory authority and should be deemed void.4 Void convictions may be challenged at any time, even where the convictions were imposed as part of a negotiated plea.5 See Brown, 225 Ill. 2d 188, 866 N.E.2d 1163. Furthermore, sentences that were imposed without statutory authority are void and are not subject to a defendant’s forfeiture. People v. Palmer, 218 Ill. 2d 148, 154, 843 N.E.2d 292 (2006). Whether a judgment is void is a question of law, which we review de novo. People v. Rodriguez, 355 Ill. App. 3d 290, 823 N.E.2d 224 (2005).
In this case, the defendant was convicted of and sentenced for four counts of home invasion based on a single entry to a residence. Under one-act, one-crime principles, the defendant could only be convicted of and sentenced for one count of home invasion. Three of the defendant’s convictions and sentences for home invasion were thus void because our supreme court has found in multiple cases cited above {Hicks, Cole, and Sims) that they were not authorized by statute. Because these judgments of conviction and sentences were void, they could be challenged by the defendant at any time, regardless of the fact that the judgments were imposed as part of a negotiated plea. See Palmer, 218 Ill. 2d 148, 843 N.E.2d 292; Brown, 225 Ill. 2d 188, 866 N.E.2d 1163.
The State cites People v. Jackson, 199 Ill. 2d 286, 769 N.E.2d 21 (2002), for the proposition that when a defendant voluntarily pleads guilty, he forfeits all nonjurisdictional errors or irregularities. While the instant defendant’s argument does not concern a jurisdictional error or irregularity, I believe the Illinois Supreme Court’s more recent pronouncement in Brown renders Jackson inapposite to the instant case. Furthermore, a judgment deemed void because it is unauthorized by statute is analogous to a judgment that is void because the trial court issued it without jurisdiction. Thus, by analogy, the void judgments at issue in this case, which I believe are void, would not be forfeited under Jackson.
The State has also cited People v. Peeples, 155 Ill. 2d 422, 616 N.E.2d 294 (1993), for the proposition that a constitutional right, like any other right of a defendant, may be forfeited. The holding of Peeples is also inapposite here because the argument on this particular issue concerns a statutory rather than a constitutional question.
For the foregoing reasons, I believe three of the defendant’s four convictions for home invasion should be found void, that we could thus reach his challenge on review, and that those convictions would have to be vacated on that basis.
I acknowledge that neither Brown nor Palmer dealt with convictions for home invasion, and they do not provide specific authority that convictions of more than one count of home invasion premised on a single entry would be void. Brown concerns reliance on a statute found unconstitutional for violation of the single subject rule of legislative enactments. Palmer raised the question of whether a sentence not allowed by the relevant sentencing statute is void and thus not subject to forfeiture by the defendant. I rely on Brown and Palmer for their articulation of the general principle that judgments entered without statutory authority are void and a challenge to such judgments is not waived but can be raised at any time even when the conviction/ sentence results from a guilty plea.
Despite the clarity of these holdings, prosecutors continue to seek— either by multiple-count complaints or indictments or through plea negotiations — and courts continue to impose multiple convictions and sentences for single-entry home invasion.
4I believe that, because home invasion is a creation of statute, there is also no alternate source of authority for the imposition of multiple convictions based on a single entry.
5As importantly, when the statute provides no authority for more than one conviction, it would seem that the State cannot offer and the court cannot accept a plea which includes the unauthorized punishment, and that the plea agreement, too, would be void.