People v. Cunningham ( 2006 )

NOTICE NO. 5-04-0320
Decision filed 05/09/06. The text of
this decision may be changed or IN THE
corrected prior to the filing of a
Petition for Rehearing or the APPELLATE COURT OF ILLINOIS
disposition of the same.
FIFTH DISTRICT
_________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 01-CF-471
)
TAFFIA CUNNINGHAM, ) Honorable
) Kimberly L. Dahlen,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE McGLYNN delivered the opinion of the court:
Taffia Cunningham, the defendant, was convicted of home invasion, armed violence (based
on residential burglary), and residential burglary and was sentenced to two concurrent 20-year prison
sentences. After making a finding that the defendant's conduct caused great bodily harm, the trial
court also ruled that pursuant to section 3-6-3(a)(2)(iii) of the Unified Code of Corrections (730
ILCS 5/3-6-3(a)(2)(iii) (West 2000)), the defendant must serve 85% of her sentence before she is
eligible for mandatory supervised release. On appeal, the defendant argues that her convictions for
armed violence and residential burglary must be vacated, and she also argues that she should not be
required to serve at least 85% of her sentence, because it was her coconspirator who suffered "great
bodily harm," not the actual victim in this case. For the foregoing reasons, we affirm in part and
vacate in part.
The defendant was a graduate student at Southern Illinois University in Carbondale. On
September 8, 2001, the defendant, her twin brotherBTyree Cunningham, a graduate student friend,
and two other friends got together and decided to go over to a local drug dealer's house and steal
money and drugs. After the drug dealer opened the door without ascertaining who was there, Tyree
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entered the house wearing dark clothes and a face mask and carrying a shotgun. Tyree yelled at the
drug dealer to get down or be killed, and the drug dealer shot Tyree and killed him. The defendant
and the rest of the would-be thieves fled the scene. Since the drug dealer was hesitant, to say the
least, to call the police, he and his friends removed Tyree's body from the house and dumped it along
a country road. After the body was found, the defendant was charged with first-degree felony
murder, home invasion, armed violence based on residential burglary, and residential burglary,
based upon her accountability for the crimes. A first trial ended with the jury hopelessly
deadlocked, and a mistrial was declared. The second jury trial ended with the jury concluding that
the defendant was guilty on all the charges but felony murder.
Despite the defendant's crime-free past and glowing recommendations from her graduate
school professors, the trial judge imposed concurrent 20-year sentences on the home invasion and
armed violence charges. The trial court also found that since great bodily harm had been inflicted,
the defendant would not be eligible for mandatory supervised release until she had served at least
85% of her sentences. The defendant now appeals, arguing (1) that her conviction for home
invasion is based upon the same acts as her conviction for armed violence, (2) that her conviction for
residential burglary must be vacated since she received no sentence for the crime, and (3) that her
brother was a coconspirator and not a "victim" for purposes of the "truth-in-sentencing" statute.
We first address the second point, which the State concedes. There is no dispute that the
defendant's conviction for residential burglary was a lesser-included offense which merged into her
conviction for armed violence based on the residential burglary. Thus, the trial court was correct in
not imposing a sentence on the charge. See People v. Cooper, 283 Ill. App. 3d 86, 93, 669 N.E.2d
637, 642-43 (1996) (citing People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977)). Without a
sentence, however, the conviction is incomplete and must be vacated. Cooper, 283 Ill. App. 3d at
93, 669 N.E.2d at 643. Without the imposition of a sentenceBor a final judgment on the charge, an
appeal should not be entertained. Cooper, 283 Ill. App. 3d at 93, 669 N.E.2d at 643 (citing People v.
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Turnipseed, 274 Ill. App. 3d 527, 531, 653 N.E.2d 1258, 1260-61 (1995)). Nevertheless, this case is
properly before us on the defendant's appeal of the home invasion and armed violence convictions.
Thus, we are authorized under Supreme Court Rule 366 (155 Ill. 2d R. 366) to vacate the incomplete
judgment entered on the residential burglary verdict. Cooper, 283 Ill. App. 3d at 93, 669 N.E.2d at
643. Accordingly, we vacate the judgment of conviction for the lesser-included offense of
residential burglary. Cooper, 283 Ill. App. 3d at 93, 669 N.E.2d at 643.
The defendant makes a similar argument in her first point on appeal. The defendant contends
that her conviction and sentence for armed violence also must be vacated because the conviction is
based upon the same act as her conviction for home invasionBthe act of entering the drug dealer's
apartment with a shotgun. After de novo review (People v. Boyd, 307 Ill. App. 3d 991, 998, 719
N.E.2d 306, 311 (1999)), we disagree. 1
1
Although the defendant failed to raise this issue in the trial court, we find that the
issue is one of plain error, which may be raised in the appellate court. See People v. Barraza,
253 Ill. App. 3d 850, 857, 626 N.E.2d 275, 280 (1993).
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A person commits the crime of home invasion when he or she (1) knowingly enters a
dwelling without authorization to do so, (2) while armed with a dangerous weapon, (3) with the
knowledge that someone is present in the dwelling, and (4) commits or threatens violence against
someone in the dwelling. 720 ILCS 5/12-11(a)(3) 2 (West 2000). A person "commits armed
violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois
[l]aw." 720 ILCS 5/33A-2(a) (West 2000). The defendant's charge of armed violence is based on
the felony of residential burglary. A person commits residential burglary when he or she (1)
knowingly enters a dwelling without authorization to do so, (2) with the intent to commit a felony or
theft. 720 ILCS 5/19-3(a) (West 2000).
The Illinois Supreme Court has long held that when more than one offense arises from a
series of closely related acts and the offenses are not, by definition, lesser-included offenses,
multiple convictions with concurrent sentences may be entered. People v. Hawkins, 125 Ill. App. 3d
520, 521, 466 N.E.2d 299, 300 (1984) (relying on People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d
838, 845 (1977)). In order to make this determination, we must look at the charging instrument and
ascertain whether the greater offense, as pled by the State, sets out the main outline of the lesser
offense. Hawkins, 125 Ill. App. 3d at 521, 466 N.E.2d at 300; People v. McLaurin, 184 Ill. 2d 58,
104, 703 N.E.2d 11, 33 (1998) (stating the Illinois Supreme Court's preference for the "charging-
instrument" approach in identifying lesser-included offenses).
"[T]o be a lesser[-]included offense, the greater offense must include every element in the
lesser offense plus one or more elements; the lesser offense cannot have any element that is
not included in the greater one. In other words, it is impossible to commit the greater offense
2
The information in this case used the term "dangerous weapon" and cited to
subsection 12-11(a)(3) of the Criminal Code of 1961. While subsection 12-11(a)(3) uses the
term "firearm," it was a shotgun that was involved in this case.
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without necessarily committing the lesser also." (Emphasis in original.) Hawkins, 125 Ill.
App. 3d at 522, 466 N.E.2d at 300.
In this case, the State alleged that the defendant committed home invasion by entering the
drug dealer's house without his permission with the knowledge that he was there and, while armed
with a weapon, threatened imminent harm. On the other hand, the State alleged that the defendant
committed armed violence by entering the drug dealer's house without his permission "with the
intent to commit a theft therein."
Although the act of entering the house is the same for each charge, the armed violence charge
based on the felony of residential burglary required an intent to commit a theft, which is not a
requirement of the greater offense of home invasion. Clearly, the defendant could have committed
home invasion without committing armed violence in this case by entering the drug dealer's house
without the intent to commit a theft. Therefore, every element of armed violence (based on
residential burglary) is not included in the offense of home invasion in this case. Thus, armed
violence is not a lesser-included offense of home invasion in this case. Accordingly, the facts of this
case support separate convictions for home invasion and armed violence.
In her last point on appeal, the defendant argues that the trial court erred in finding that great
bodily harm had been inflicted upon a victim during the commission of home invasion. After de
novo review (People v. Whitney, 188 Ill. 2d 91, 98, 720 N.E.2d 225, 229 (1999)), we agree.
If a defendant is convicted of home invasion and the trial court makes a finding, as it did in
this case, that the conduct leading to the conviction resulted in great bodily harm to a "victim," the
defendant shall receive no more than 4.5 days of good-conduct credit for each month of his or her
sentence of imprisonment. 730 ILCS 5/3-6-3(a)(2)(iii) (West 2000). In this case, the drug dealer
was alleged in the information to be the "victim" of the home invasion. There is no dispute,
however, that the drug dealer was uninjured and that Tyree was the only person who suffered bodily
injury during the commission of the crimes at issue. Therefore, the trial court must have considered
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Tyree the "victim" for sentencing purposes. Whether Tyree qualifies as a "victim" lies in the
meaning of the statute.
In article 1 of chapter III of the Unified Code of Corrections, the term "victim" has the
meaning ascribed to it in the Bill of Rights for Victims and Witnesses of Violent Crime Act, now
entitled the Rights of Crime Victims and Witnesses Act (the Act) (725 ILCS 120/3(a) (West 2000)).
730 ILCS 5/3-1-2(n) (West 2000). Under the Act at the time of the offenses herein, a "crime
victim" was defined as follows:
"(1) a person physically injured in this State as a result of a violent crime perpetrated
or attempted against that person or (2) a person who suffers injury to or loss of property as a
result of a violent crime perpetrated or attempted against that person or (3) a single
representative who may be the spouse, parent, child[,] or sibling of a person killed as a result
of a violent crime perpetrated against the person killed or the spouse, parent, child[,] or
sibling of any person granted rights under this Act who is physically or mentally incapable of
exercising such rights, except where the spouse, parent, child[,] or sibling is also the
defendant or prisoner or (4) any person against whom a violent crime has been committed or
(5) any person who has suffered personal injury as a result of a violation of Section 11-501
of the Illinois Vehicle Code, or of a similar provision of a local ordinance, or of Section 9-3
of the Criminal Code of 1961, as amended[.]" 725 ILCS 120/3(a) (West 2000).
After applying this definition to TyreeBthe only physically injured person in this case, we
find that Tyree does not fall under any of the categories listed above. Although it is conceivable that
Tyree could fall under subsection (4), as the State suggests, we must resolve any ambiguity in this
regard in favor of the defendant pursuant to our policy of lenity. See Whitney, 188 Ill. 2d at 98, 720
N.E.2d at 228-29; People v. Alejos, 97 Ill. 2d 502, 512, 455 N.E.2d 48, 52 (1983). Certainly, the
occupant of the house had a constitutional right to defend himself, even with the use of deadly force,
when confronted with an armed invader. That act, in and of itself, cannot be considered a crime and
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the armed invader a victim because he was slower on the draw. Therefore, Tyree cannot be found to
be a "victim" for sentencing purposes. Because Tyree was the only person who suffered any injury
in this case (and the "victim" listed in the indictment was uninjured), we vacate the portion of the
trial court's sentencing order that requires the defendant to serve at least 85% of her sentence before
attaining eligibility for mandatory supervised release.
For the foregoing reasons, we affirm the trial court's sentencing order with regard to armed
violence and home invasion. We vacate the judgment of conviction on the lesser-included offense of
residential burglary. Since we also find that no "victim" suffered great bodily injury, we also vacate
the portion of the trial court's sentencing order which requires the defendant to serve at least 85% of
her sentence before attaining eligibility for mandatory supervised release.
Affirmed in part and vacated in part.
GOLDENHERSH and HOPKINS, JJ., concur.
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NO. 5-04-0320
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 01-CF-471
)
TAFFIA CUNNINGHAM, ) Honorable
) Kimberly L. Dahlen,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: May 9, 2006
___________________________________________________________________________________
Justices: Honorable Stephen P. McGlynn, J.
Honorable Richard P. Goldenhersh, J., and
Honorable Terrence J. Hopkins, J.,
Concur
___________________________________________________________________________________
Attorneys Daniel M. Kirwan, Deputy Defender, E. Joyce Randolph, Assistant Defender,
for Office of the State Appellate Defender, Fifth Judicial District, 117 North Tenth
Appellant Street, Suite 300, Mt. Vernon, IL 62864
___________________________________________________________________________________
Attorneys Hon. Michael Wepsiec, State's Attorney, Jackson County Courthouse, 1001
for Walnut Street, Murphysboro, IL 62966; Norbert J. Goetten, Director, Stephen
Appellee E. Norris, Deputy Director, Sharon Shanahan, Contract Attorney, Office of the
State's Attorneys Appellate Prosecutor, 730 E. Illinois Highway 15, Suite 2,
P. O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________