People v. King

2017 IL App (1st) 142297
No. 1-14-2297
Opinion filed May 12, 2017
Fifth Division
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 5344
)
LAVONA KING, ) Honorable
) Gregory Robert Ginex,
Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Lampkin and Reyes concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Lavona King was found guilty of home invasion,

residential burglary, aggravated battery, and aggravated unlawful restraint. She was sentenced to

eight years in the Illinois Department of Corrections for home invasion, five years for residential

burglary, three years for aggravated battery, and two years for aggravated unlawful restraint. All

sentences were to be served concurrently. On appeal, defendant contends that the trial court

failed to conduct an inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), into her claims

that trial counsel “ignored” one witness and failed to impeach another. Defendant further
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contends that certain convictions must be vacated pursuant to the one-act, one-crime rule. We

affirm in part and vacate in part.

¶2 Following a February 19, 2012, incident, defendant was charged with, inter alia, home

invasion and residential burglary. Specifically, defendant was charged with home invasion in that

she:

“not being a police officer acting in the line of duty, without authority, knowingly entered

the dwelling place of another, to wit: Sage O’Harrow, and she remained in such dwelling

place until she knew or had reason to know that one or more persons were present, and

while armed with a dangerous weapon, to wit: a bludgeon, she used force or threatened

the imminent use of force upon Sage O’Harrow, within such dwelling place, whether or

not injury occurred.”

Defendant was also charged with residential burglary in that she “knowingly and without

authority, entered the dwelling place of Sage O’Harrow, located at 421 North Oak Park Avenue

*** with the intent to commit a therein a felony, to wit: kidnapping.”

¶3 At trial, Oak Park police officer Michael Kelly testified that on the morning of January

23, 2012, he responded to a “custody dispute call” at 421 North Oak Park Avenue. When he

arrived, defendant was “nervous and upset” about her children who were “staying” at that

address. He then spoke to defendant’s sister, Sage O’Harrow, and mother, Robin O’Harrow, and

learned that defendant had a visitation scheduled with her children at 5 p.m. Kelly further learned

that the visit could still take place if defendant left. Although defendant left, Kelly was called

back to the location less than an hour later. Defendant was then removed from the location.

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¶4 Maya King, defendant’s daughter, testified that in February 2012, she was 13 years old

and lived with her grandmother Robin O’Harrow, her aunt Sage O’Harrow, and her 5-year-old

brother Solomon. Maya lived with Robin because defendant “was not able to take care of [her] at

the time.” They lived on the first floor of a two-flat, and Sage had an apartment in the basement.

¶5 On the morning of February 18, 2012, Maya heard “like a glass breaking noise.” She

thought it was construction noise and went back to sleep. A few minutes later defendant walked

in and said, “I am taking you and we have to go look for Solomon.” Maya first said no but then

left the bed and followed defendant. She observed defendant proceed toward Sage’s basement

“apartment area.” Maya then heard “a lot of yelling and ruckus.” Specifically, she heard

defendant say that defendant was going to murder Sage. Maya grabbed an iron skillet. She then

“thought better of it,” put the skillet down, and called her grandmother and the police. She

waited in her room until the police arrived and then let officers inside. At this point, she observed

defendant and Sage on the stairs and heard Sage calling for help. Sage was sitting on top of

defendant. Defendant was face-down and was holding a wrench. Defendant was taken into

custody by police officers. Maya was scared because defendant was not scheduled to be at the

house.

¶6 Sage O’Harrow, defendant’s sister, testified that when she woke up defendant was

standing over her with a “black and silver wrench.” Sage told defendant that she should not “be

here.” When defendant asked where Solomon was, Sage replied that he was not there. Defendant

then “started swinging the wrench” at Sage and hit her in the head, hand, elbow, and arm.

Defendant also pulled Sage’s hair. As they struggled, defendant said she was going to kill Sage.

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At one point, Sage pulled defendant onto the stairs and defendant fell. Sage got on top of

defendant and “started screaming” to Maya to call the police.

¶7 Robin O’Harrow, defendant’s mother, testified that the Department of Children and

Family Services (DCFS) placed Maya and Solomon with her in January 2012. Defendant was to

have supervised visitation at a DCFS office. Defendant did not have a key to Robin’s home and

was told that she was not allowed inside. In January 2012, defendant came to the home. The

police were called, and defendant was told to leave. Defendant did not have permission to enter

the home on February 18, 2012. When Robin left that morning, the doors to the house were

locked. When she later returned, she noticed that the glass in her bedroom door was broken.

¶8 Oak Park police officer Holly Smith testified that she arrived at 421 North Oak Park

Avenue and proceeded to the basement stairs. There, she observed Sage on top of defendant.

Defendant was holding a wrench. Smith told defendant 10-12 times to let go of the wrench.

Ultimately, defendant was taken into custody.

¶9 Defendant testified that she went to visit her children at her mother’s house. She had a

key to the house. She became worried when no one answered the door. Defendant then walked to

her mother’s restaurant to ask about her mother. Defendant thought her mother was missing

because her mother was not answering the phone. She went back to her mother’s house and

walked inside through the unlocked back door. Defendant found Maya, who was asleep, and

awakened her to get dressed. Defendant asked Maya where everyone was, and after learning that

Sage was downstairs sleeping, defendant went to talk to Sage. Defendant opened the door to the

basement and called out to Sage. Defendant denied holding a wrench. Sage “like shot up” and

asked what defendant was “doing here.” Sage then left the bed and began screaming at and

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pushing defendant. As they approached the stairs, Sage picked up a wrench. Defendant tripped

on the stairs and Sage “fell on top” of her. Defendant never had control of the wrench and did not

bring it with her. She went to the house because she was supposed to have a visit with her

children. Although the wrench belonged to her, she had left it at her mother’s house.

¶ 10 The trial court found defendant guilty of home invasion, residential burglary, aggravated

domestic battery, and aggravated unlawful restraint. At sentencing, the following exchange took

place:

“THE DEFENDANT: There was no evidence to support my end of this deal. I

don’t understand why this happened at all. My sister took my dog, broke into my house.

She took my dog.

THE COURT: [Defendant], I will caution you. You already testified.

THE DEFENDANT: There was one call. I mean I have a witness.

THE COURT: I considered your testimony.

THE DEFENDANT: A witness wasn’t called.

THE COURT: If you have any questions—

THE DEFENDANT: This is ridiculous.

***

THE DEFENDANT: I don’t understand this at all. She is—she has a background.

THE COURT: Very well.

THE DEFENDANT: She is on medication.”

¶ 11 The parties then made arguments in aggravation and mitigation. When the trial court

asked defendant if there was anything she wished to tell the court, defendant responded:

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“I don’t know what else to say. These are my kids. It was like domestic insanity

going on. I have like a little 13 year old that wanted to run around with my 21-year old

sister.

I asked her to pull her medical background, her criminal background. She has

heroin possession charges.

I didn’t want her in the house with my sister. We were fighting like a month

straight. She robbed my house. She took my dog. She has my daughter turned against

me.”

¶ 12 Ultimately, the trial court sentenced defendant to eight years in prison for home invasion,

five years for residential burglary, three years for aggravated battery and two years for

aggravated unlawful restraint. All sentences were to be served concurrently.

¶ 13 On appeal, defendant first contends that the trial court failed to conduct a preliminary

inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), into her claims that she was denied

the effective assistance of counsel by counsel’s failure to call a witness and to impeach Sage with

a prior conviction and her use of medication and heroin. The State responds that no Krankel

inquiry was necessary because defendant’s claims were ambiguous and pertained only to matters

of trial strategy.

¶ 14 Our supreme court, beginning with Krankel, has instructed that when a defendant

presents a pro se posttrial claim of ineffectiveness of counsel, the trial court should conduct an

inquiry to examine the factual basis of the claim. People v. Moore, 207 Ill. 2d 68, 77-78 (2003).

If a defendant’s pro se allegations of ineffective assistance of counsel show possible neglect,

new counsel is appointed to represent the defendant in a full hearing on her claims. Id. at 78.

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¶ 15 If a defendant does not make a valid ineffective assistance claim, she does not trigger the

need for the trial court to inquire. People v. Taylor, 237 Ill. 2d 68, 75-77 (2010). Although the

pleading requirements for raising a pro se claim of ineffectiveness of counsel are “somewhat

relaxed,” a defendant must still satisfy minimum requirements to trigger a Krankel inquiry by the

trial court. People v. Washington, 2015 IL App (1st) 131023, ¶ 11. “Mere awareness by a trial

court that defendant has complained of counsel’s representation imposes no duty on the trial

court to sua sponte investigate defendant’s complaint [citation]; however, when defendant

presents a pro se claim of ineffective assistance, the trial court should first examine the factual

basis of defendant’s claim [citation].” Id. Whether the trial court properly conducted a Krankel

inquiry presents a legal question and is subject to de novo review. People v. Jolly, 2014 IL

117142, ¶ 28.

¶ 16 Recently, in People v Ayres, 2017 IL 120071, our supreme court considered whether the

defendant’s bare allegation of “ineffective assistance of counsel” contained in a posttrial motion

to withdraw his guilty plea and vacate his sentence triggered the trial court’s duty to conduct a

preliminary Krankel inquiry, even though that allegation lacked any explanation or supporting

facts. The court concluded a defendant’s “clear claim asserting ineffective assistance of counsel,

either orally or in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel

inquiry.” Id. ¶ 18.

¶ 17 Thus, the question before this court is whether defendant did enough to trigger the trial

court’s duty to inquire further, that is, did defendant “bring [her] claim to the court’s attention.”

Id. ¶ 24. Defendant admits that her “claims were not specifically couched in terms of a formal

document claiming ineffective assistance of counsel” but argues that the trial court was still

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“obligated” to take notice and inquire. However, in the case at bar, defendant’s statements fall

short of a clear claim of ineffective assistance of counsel that would trigger the trial court’s duty

to conduct a preliminary Krankel inquiry.

¶ 18 Initially, we note, as defendant concedes, that at no point in the proceedings did

defendant state, orally or in writing, that counsel was ineffective. With regard to defendant’s

allegation on appeal that a witness was not presented at trial, the record reveals that during

sentencing, defendant stated that Sage broke into her house and stole her dog. Defendant further

stated that “[t]here was one call” and that she had a “witness.” Based upon the record, we cannot

determine whether the witness to which defendant referred witnessed the alleged break-in and

theft of defendant’s dog or the events at issue in this case. Although defendant’s statement makes

it clear that she is upset with Sage and did not understand “why this happened at all,” it is not

clear that defendant is complaining about counsel. In other words, defendant failed to make a

“clear claim asserting ineffective assistance of counsel, *** sufficient to trigger the trial court’s

duty to conduct a Krankel inquiry.” Id. ¶ 18.

¶ 19 Defendant also stated, after the trial court asked if she had anything that she wished to tell

the court before the court imposed sentence, that:

“I don’t know what else to say. These are my kids. It was like domestic insanity

going on. I have like a little 13 year old that wanted to run around with my 21-year old

sister.

I asked her to pull her medical background, her criminal background. She has

heroin possession charges.

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I didn’t want her in the house with my sister. We were fighting like a month

straight. She robbed my house. She took my dog. She has my daughter turned against

me.”

¶ 20 Defendant made these statements in allocution, and they can be interpreted to explain

defendant’s actions, that is, defendant considered Sage to be a bad influence on Maya and

blamed Sage for turning Maya against defendant. Although defendant stated that she “asked

her,” presumably trial counsel to pull “her,” presumably Sage’s, medical and criminal

background and certainly expressed that she was unhappy with Sage and Sage’s influence on her

daughter, she did not specifically state that she was unhappy with trial counsel’s representation.

See Washington, 2015 IL App (1st) 131023, ¶ 11 (the trial court’s “[m]ere awareness” that the

defendant has complained about counsel’s representation imposes no duty on the trial court to

sua sponte investigate her complaint). While defendant may have insinuated that counsel did not

investigate Sage to defendant’s satisfaction, defendant did not assert a clear claim that trial

counsel was ineffective. Absent defendant asserting a clear claim of ineffective assistance of

counsel, the trial court’s duty to conduct a Krankel inquiry was not triggered. See Ayres, 2017 IL

120071, ¶ 18 (a defendant’s “clear claim asserting ineffective assistance of counsel, either orally

or in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry”).

¶ 21 Defendant next contends that certain convictions must be vacated pursuant to the one-act,

one-crime rule. Although defendant did not raise this error before the trial court, arguments

relating to the one-act, one-crime doctrine are reviewed under the second prong of the plain-error

rule because the potential for a surplus conviction implicates the integrity of the judicial process.

People v. Nunez, 236 Ill. 2d 488, 493 (2010).

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¶ 22 Under the one-act, one-crime rule multiple convictions may not be based on the same

physical act. See People v. King, 66 Ill. 2d 551, 566 (1977). Since multiple convictions cannot be

based on precisely the same physical act, “a court first determines whether a defendant’s conduct

consisted of separate acts or a single physical act.” People v. Rodriguez, 169 Ill. 2d 183, 186

(1996). An “act” is defined as “any overt or outward manifestation which will support a different

offense.” King, 66 Ill. 2d at 566. The question of whether a defendant’s conviction violates the

one-act, one-crime rule is subject to de novo review. Nunez, 236 Ill. 2d at 493.

¶ 23 Defendant first contends that her convictions for home invasion and residential burglary

violate the one-act, one-crime rule. She relies on People v. McLaurin, 184 Ill. 2d 58 (1998), to

argue that her conviction for residential burglary must be vacated because both her home

invasion and residential burglary convictions were based upon the same act, that is, her entry into

the residence at 421 North Oak Park Avenue.

¶ 24 To determine whether simultaneous convictions violate the one-act, one-crime rule, this

court performs a two-step analysis. People v. Miller, 238 Ill. 2d 161, 165 (2010). First, we

determine whether the defendant’s conduct in committing the two offenses consisted of multiple

physical acts or a single physical act. Id. If it took multiple physical acts to commit the two

offenses, both convictions can stand even if the acts were interrelated. Rodriguez, 169 Ill. 2d at

188-89. “Multiple convictions are improper,” however, “if they are based on precisely the same

physical act.” Miller, 238 Ill. 2d at 165.

¶ 25 If the criminal conduct involved multiple physical acts, we proceed to the second step of

the analysis, which is to ask whether one offense is a lesser included offense of the other offense.

Id. The one-act, one-crime rule forbids simultaneous convictions of the greater offense and the

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lesser included offense. Id. When deciding whether a charged offense is a lesser included offense

of another charged offense, we use the abstract-elements approach. Id. at 172-73. Under the

abstract-elements approach, we compare the statutory elements of the two offenses. Id. at 166. If

all the elements of one offense are included in the second offense and if the first offense contains

no element that the second offense lacks, the first offense is a lesser included offense of the

second. Id. Pursuant to our de novo review (Nunez, 236 Ill. 2d at 493), we will apply this two-

step analysis to the offenses of home invasion and residential burglary.

¶ 26 First, we must determine whether the conduct by which defendant committed these two

offenses consisted of “precisely the same physical act” as opposed to multiple physical acts. See

Miller, 238 Ill. 2d at 165. To commit home invasion, as that offense is defined in section 19-

6(a)(1) of the Criminal Code of 2012 (720 ILCS 5/19-6(a)(1) (West 2012)), defendant had to do

the following physical acts: (1) “enter[ ] the dwelling place of another” and (2) “use[ ] force”

against someone in the dwelling place. To commit residential burglary, defendant had to perform

only one physical act, that is, enter a dwelling place. See 720 ILCS 5/19-3(a) (West 2012).

¶ 27 Accordingly, the conduct comprising home invasion and residential burglary does not

consist of precisely the same physical act; rather, the conduct consists of multiple physical acts,

i.e., entering the dwelling place and using force against someone inside. See Rodriguez, 169 Ill.

2d at 188-89. Therefore, the first step of the Miller analysis does not prevent simultaneous

convictions for home invasion and residential burglary. See Miller, 238 Ill. 2d at 165.

¶ 28 The second step of the analysis asks whether residential burglary is a lesser included

offense of home invasion. Id. A comparison of statutory elements of the two offenses reveals that

the lesser offense of residential burglary has an element that the greater offense of home invasion

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does not, specifically, having, at the moment of the unauthorized entry or the moment of the

unauthorized remaining, an “intent to commit therein a felony or theft.” 720 ILCS 5/19-3(a)

(West 2012). Section 19-3(a) provides: “A person commits residential burglary when he or she

knowingly and without authority enters or knowingly and without authority remains within the

dwelling place of another, or any part thereof, with the intent to commit therein a felony or

theft.” 720 ILCS 5/19-3(a) (West 2012).

¶ 29 The statute defining home invasion, on the other hand, does not mention entering or

remaining in a dwelling place with the intent to commit a felony or theft. Rather, section 19-

6(a)(1) provides that:

“(a) A person who is not a peace officer acting in the line of duty commits home

invasion when without authority he or she knowingly enters the dwelling place of another

when he or she knows or has reason to know that one or more persons is present *** and

(1) While armed with a dangerous weapon, other than a firearm, uses force

or threatens the imminent use of force upon any person or persons within such

dwelling place whether or not injury occurs ***.” 720 ILCS 5/19-6(a)(1) (West

2012).

¶ 30 Home invasion, in contrast to residential burglary, does not require that the defendant

enter the dwelling place with the specific intent to commit a felony or theft inside the dwelling

place. The only mental state that home invasion requires at the moment of entry is knowledge:

i.e., the defendant knows that she is entering the dwelling place, and she knows or has reason to

know that someone is present in the dwelling place. Residential burglary is not therefore a lesser

included offense of home invasion, because residential burglary has an element that home

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invasion lacks, namely, entering the residence or remaining in the residence with the intent to

commit a felony or theft therein. See Miller, 238 Ill. 2d at 166.

¶ 31 Accordingly, the simultaneous convictions of home invasion and residential burglary do

not violate the one-act, one-crime rule, because (1) the criminal conduct that was the basis of

those offenses consisted of multiple physical acts instead of precisely the same physical act; and

(2) under the abstract-elements approach, residential burglary is not a lesser included offense of

home invasion. See id. at 165.

¶ 32 In so holding, we acknowledge that in People v. McLaurin, 184 Ill. 2d 58, 106 (1998),

our supreme court concluded that the offenses of home invasion and residential burglary were

“carved from the same physical act of [the] defendant’s entering the dwelling [place]” and that

the residential burglary conviction therefore had to be vacated. However, because the McLaurin

court did not specifically address the fact that the offense of home invasion requires the

additional physical act of causing injury to a person in a dwelling, we do not interpret McLaurin

as foreclosing a determination that home invasion consists of multiple physical acts. We also

note that panels of this court have similarly distinguished McLaurin. See People v. Lee, 2012 IL

App (1st) 101851, ¶ 54 (holding residential burglary and home invasion require the State to

prove different elements for each crime and, thus, do not violate the one-act, one-crime rule). See

also People v. Price, 2011 IL App (4th) 100311, ¶¶ 27-30 (distinguishing McLaurin because the

court failed to address (1) its earlier decision in Rodriguez finding that where multiple acts are

present their interrelationship does not preclude multiple convictions, (2) that the offense of

home invasion required an additional element, i.e., the physical act of intentionally causing

injury to a person in the dwelling, and (3) that its determination regarding home invasion and

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residential burglary was inconsistent with its earlier holding in the same case regarding the

offenses of intentional murder and home invasion). But see, e.g., People v. Jones, 2015 IL App

(2d) 120717, ¶ 42 (following McLaurin); People v. Johnson, 347 Ill. App. 3d 570, 577 (2004)

(following McLaurin).

¶ 33 We finally note that McLaurin did not expressly overrule those prior cases that held

residential burglary and home invasion were not carved from the same physical act. See People

v. Lobdell, 121 Ill. App. 3d 248, 252 (1983) (“Since entry into the victim’s home was only part

of the home invasion offense and the sole act of the residential burglary offense, the two offenses

were not carved from the same physical act.”); People v. Jones, 148 Ill. App. 3d 133, 145 (1986)

(following Lobdell); People v. Govednik, 150 Ill. App. 3d 717, 723-24 (1986) (following

Lobdell). Defendant’s argument must therefore fail.

¶ 34 Defendant finally contends that her convictions for aggravated battery and aggravated

unlawful restraint violate the one-act, one-crime rule because they are based upon the same

physical act. The State concedes that defendant’s conviction for aggravated unlawful restraint

must be vacated pursuant to the one-act, one-crime rule because defendant’s action of unlawfully

restraining Sage was inherent in the aggravated battery. We therefore vacate defendant’s

conviction for aggravated unlawful restraint.

¶ 35 For the reasons stated above, we vacate defendant’s conviction for aggravated unlawful

restraint. We affirm the judgment of the circuit court of Cook County in all other aspects.

¶ 36 Affirmed in part; vacated in part.

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