People v. Syverson , 293 Ill. App. 3d 199 ( 1997 )

JUSTICE HOMER

delivered the opinion of the court:

Following a jury trial, defendant Ralph H. Syverson was found guilty of home invasion (720 ILCS 5/12 — 11(a)(1) (West 1994)) and guilty but mentally ill of second degree murder (720 ILCS 5/9— 2(a)(1) (West 1994)). Following a sentencing hearing, the trial court concluded that consecutive sentences were mandatory. The court then sentenced the defendant to a 15-year term of imprisonment for home invasion and a consecutive 10-year term for second degree murder. The defendant appeals, arguing that the trial court erred in concluding that consecutive sentences were mandatory. We affirm.

FACTS

At trial, it was established that the defendant was an Illinois state trooper. In 1976, he married Marianne Wielgopolan, and the couple had one child. In May of 1994, Marianne told the defendant that she had been seeing another man and wanted a divorce. Approximately one week later, Marianne moved out of the marital home.

Over the next few months, the defendant attempted to reconcile with Marianne. In late July of 1994, Marianne agreed to go to joint counseling with the defendant. She also told the defendant that she was leaving her paramour, Gale Rapp. However, a few days later Marianne began to see Rapp again. When she informed the defendant, he became angry.

On August 14, 1994, the defendant arrived at Marianne’s apartment in the early morning. He brought doughnuts and asked Marianne to give him another chance. After about an hour, the defendant left.

The next day, Rapp came over to Marianne’s apartment. The two went to bed around midnight. They awoke in the early morning to find the defendant standing in the bedroom doorway. Marianne said, "How in the hell did you get in here?” The defendant then walked over to the bed and said: "Gale Rapp, I am — I am here to kill you, Gale Rapp. You ruined my life. We were going to go to joint counseling.”

At that point, the defendant brought out his service revolver. Marianne and Rapp both reached for the gun and a struggle ensued. The defendant fired a shot and Rapp fell back, muttering something. The defendant fired a few more shots and Marianne ran out of the bedroom to the kitchen. After a while, the defendant stopped shooting, came out of the bedroom, and put his gun on a bar stool in the living room. He then telephoned the Ottawa police, who arrived at the scene shortly thereafter.

The defendant was found guilty of home invasion and guilty but mentally ill of second degree murder. A sentencing hearing was held at which the trial court found that consecutive sentences were mandatory. The court then imposed a 15-year term of imprisonment for home invasion and a consecutive 10-year term of imprisonment for second degree murder.

ANALYSIS

On appeal, the defendant argues that the trial court erred in finding that consecutive sentences were mandatory. The defendant correctly notes that consecutive sentences are mandatory if: (1) the offenses "were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective”; and (2) one of the offenses "was a Class X or Class 1 felony and the defendant inflicted severe bodily injury.” 730 ILCS 5/5 — 8— 4(a) (West 1994). The defendant contends that neither of these prerequisites was met in the instant case.

I

The defendant first argues that he did not commit the home invasion and the murder "as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.”

After reviewing the applicable case law, it is apparent that there is some uncertainty regarding the meaning of "a single course of conduct during which there was no substantial change in the nature of the criminal objective.” 730 ILCS 5/5 — 8—4(a) (West 1994). Some cases have suggested this language is unclear. See People v. Bole, 155 Ill. 2d 188, 193, 613 N.E.2d 740, 742 (1993) ("It is unclear from the statute whether the additional language, 'during which there is no substantial change in the nature of the criminal objective,’ is meant to define, or describe, the phrase 'single course of conduct,’ or whether it is intended instead to limit that phrase”).

Other cases have used various tests in attempting to explain what constitutes a "single course of conduct.” See, e.g., People v. Harris, 220 Ill. App. 3d 31, 32, 580 N.E.2d 903, 904 (1991) (using an "independent motivation” test); People v. Fritz, 225 Ill. App. 3d 624, 629, 588 N.E.2d 307, 310-11 (1992) (using an "overarching criminal objective” test); People v. Kagan, 283 Ill. App. 3d 212, 220, 669 N.E.2d 1239, 1245 (1996) (using both "independent criminal motivation” language and "overarching criminal objective” language). Recently, the merits of these tests have been called into question. People v. Strickland, 283 Ill. App. 3d 319, 324, 668 N.E.2d 1201, 1204 (1996) ("appellate courts have not developed any consistent or coherent analysis of when courses of conduct are 'related’ as opposed to 'separate’ ”); People v. Guzman, 276 Ill. App. 3d 750, 759, 658 N.E.2d 1268, 1275 (1995) ("The appropriate test for determining what constitutes a single course of conduct under section 5 — 8—4 is somewhat unclear”).

The problem with the above-noted tests is that they place undue emphasis on a rather amorphous concept, a defendant’s motivation, while deemphasizing other relevant factors. We believe it is better to consider the totality of the circumstances, with the defendant’s motive being only one of several factors the court should consider. See, e.g., People v. Bilyeu, 102 Ill. App. 3d 130, 132, 429 N.E.2d 912, 913 (1981); People v. Lee, 41 Ill. App. 3d 502, 505, 354 N.E.2d 543, 546 (1976). Among the other factors the court should consider are: (1) the time lapse between each offense (People v. Bole, 155 Ill. 2d 188, 613 N.E.2d 740 (1993)); (2) the proximity in location of the offenses (People v. Paino, 137 Ill. App. 3d 645, 484 N.E.2d 1106 (1985)); and (3) the number of victims (People v. Lindsay, 67 Ill. App. 3d 638, 384 N.E.2d 793 (1978)).

Although each of these factors should be considered by the trial court, no single factor is necessarily determinative. See, e.g., People v. Embry, 249 Ill. App. 3d 750, 619 N.E.2d 246 (1993) (sexual assaults with multiple victims found to be a single course of conduct); Bole, 155 Ill. 2d 188, 613 N.E.2d 740 (sexual assaults involving only one victim found to be more than a single course of conduct). Moreover, the trial court’s determination will be upheld as long as there is evidence to support it. People v. Morris, 237 Ill. App. 3d 140, 603 N.E.2d 1196 (1992).

In the case at hand, the record reveals that both offenses: (1) occurred seconds apart; (2) occurred in a single location; (3) were committed against a single victim, Gale Rapp; and (4) appeared to have a single motivation, the desire to eliminate Gale Rapp as a threat to the defendant’s marriage. Under these circumstances, we find that there was substantial evidence supporting the trial court’s determination that the defendant committed both offenses during a "single course of conduct during which there was no substantial change in the nature of the criminal objective.”

II

The defendant also contends that the second prerequisite for mandatory consecutive sentences was lacking because it was not established that "one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury.” 730 ILCS 5/5 — 8—4(a) (West 1994).

The defendant argues that the home invasion, while a Class X felony, could not be used as the "triggering” felony because it did not "involve” the infliction of severe bodily injury. That offense was complete, the defendant contends, when the defendant entered his wife’s apartment and threatened her and Rapp.¹ Since that offense did not involve injury to anyone, it does not satisfy the second prerequisite, argues the defendant. Likewise, the second degree murder conviction, a Class 1 felony, fails to qualify, contends the defendant, because "severe bodily injury” is an inherent element of the offense. The defendant succeeds with his argument only if this court finds that neither of the defendant’s convictions qualify as a triggering Class X or Class 1 felony requiring consecutive sentencing in this case.

First we consider whether the Class X home invasion qualifies. The defendant fails to cite, and we have not found, any authority for his position.² The plain language of the statute does not require that the injury be inflicted as part of the triggering felony. So long as a Class X or Class 1 felony is committed and severe bodily injury is inflicted during a single course of conduct, consecutive sentences are required. Having already determined that the defendant committed both offenses during a single course of conduct, we find that the defendant’s conduct fell squarely within the requirement of section 5 — 8—4(a) that the defendant commit a "Class X or Class 1 felony and [inflict] severe bodily injury.” Having so decided, it becomes unnecessary for us to consider the defendant’s additional argument that his Class 1 felony second degree murder conviction could not be used as the triggering felony. The trial judge was correct in his position that consecutive sentences were required in this instance.

CONCLUSION

For the reasons set forth above, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

SLATER, J., concurs.

1 The indictment charged that the defendant "[k]nowingly and without authority entered the dwelling place of Marianne Syverson *** and while armed with [a firearm] threatened the imminent use of force upon persons within such dwelling place.”

2 The case cited by the defendant in support of his argument that the home invasion was not a triggering felony, People v. Porter, 277 Ill. App. 3d. 194, 660 N.E.2d 118 (1995), is distinguishable from the instant case. In Porter, the defendant was convicted of one count of first degree murder and four counts of attempted first degree murder, involving five separate victims. Two of the attempted murder victims were unharmed. The defendant did not dispute the applicability of section 5 — 8—4(a). The issue before the court was whether all five of the sentences must run consecutively or only those for the three felonies that involved severe bodily harm to the victims. The appellate court determined that consecutive sentencing was not applicable for the two offenses not involving severe bodily injury to a victim. In the instant case, Rapp, the individual receiving "severe bodily injury,” was the victim of both the felonies.