People v. Donnelly , 226 Ill. App. 3d 771 ( 1992 )

JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant Mark Donnelly was convicted of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12—11(a)(2)) and sentenced to 10 years’ imprisonment. He now appeals his conviction, claiming (1) the State did not prove him guilty beyond a reasonable doubt of entering the victim’s home without authority and, therefore, he could not be convicted of home invasion; (2) he was denied his sixth amendment right to effective assistance of counsel because his trial counsel failed to tender an instruction for the lesser offenses of battery or aggravated battery; and (3) he is entitled to 84 days’ credit against his prison sentence for time spent in jail, rather than 81 days’ credit as granted by the trial court.

Evidence at trial showed that at approximately 2:30 a.m. on August 20, 1990, the victim Alonzo Lemons and his girlfriend Lisa Gad-dis were sitting in the living room of their residence watching television. Their child was asleep in one of the bedrooms. The screen door leading into the living room was closed, but the main door was open. It would have been apparent to someone standing at the door that the home was occupied. Gaddis testified she saw defendant and two companions standing at the door. Defendant entered the home, followed by the others, without knocking or seeking permission to enter. She told Lemons (who was dozing) that they had company. Defendant then walked up to Lemons and began striking him. Gaddis’ child began to cry and she went into the bedroom, followed by one of defendant’s companions. Lemons called to her to telephone the police. When she attempted to do so, one of the men kicked in the bedroom door and tore the phone off the wall. After the men left, she observed that the living room was in disarray, with papers scattered around and vases broken. Lemons’ bedroom door had also been damaged and a mirror in the bedroom broken. Lemons himself had a broken nose, his face was bruised and cut, and one of his eyes was swollen nearly shut.

Lemons’ testimony regarding the incident was similar to that of Gaddis. He testified the screen door was closed and the main door was open. He said some friends of his had just left the house. Defendant simply walked into the house without an invitation and without knocking. Upon entering, defendant began hitting him. Defendant wanted some papers that Lemons had. When Lemons went into his bedroom to get the papers, defendant and one of the other men followed and continued to hit him. Defendant found the papers he wanted, and he and the others then left. The papers were letters Lemons had received from Lillian Donnelly, the widow of defendant’s brother John. John Donnelly had been killed, and Lillian was either a suspect or was charged with the killing. Lemons had had an affair with Lillian while she was married to John, and Lemons had revealed this fact to defendant. About a week prior to the incident, Lemons had told defendant that he had some letters Lillian had written to him (Lemons) that the prosecutor might find useful. Defendant asked Lemons to take these letters to the prosecutor himself. At the time of the attack, Lemons had not done so. There had been some tension between defendant and Lemons over the letters prior to the attack. Lemons testified that when he saw defendant that night, he had a feeling he knew why defendant was there.

Much of the testimony centered on the question of whether defendant had authority to simply walk into Lemons’ house without knocking and waiting for an invitation. Lisa Gaddis testified that one or two people had license to walk in without knocking, and she mentioned a specific friend of Lemons, Derrick Rice, who she said had such authority. She also testified that she was not alarmed when defendant walked into the house. Lemons testified he was friendly with defendant, and that defendant had been at his house on prior occasions. Both he and Gaddis indicated defendant had not been there for at least a month prior to the incident. Lemons testified defendant did not have authority to walk into his home without knocking first, and that he had not done so on prior occasions unless Lemons knew he was coming over. Defendant was not invited to his house the night of the incident. Lemons testified the only persons allowed to walk in without knocking were Derrick Rice and Lisa Gaddis.

Defendant did not testify, but a statement he gave to law enforcement authorities after his arrest was admitted into evidence. When asked why he and his companions had gone to Lemons’ house that night, defendant responded they had gone there just to talk to Lemons, to see whether he had gone to the police station to tell them what he knew about Lillian Donnelly. The statement included the following questions and answers as to the issue of consent for defendant to enter the Lemons home:

“[By detective]: When you arrived at the house, did you knock on the door?

[By defendant]: I tapped on the door.

[Detective]: When you tapped on the door, what happened?

[Defendant]: He looked at us as a look as to why did we tap.

[Detective]: Did he tell you to come in?

[Defendant]: Not verbally.

[Detective]: Did he tell you non-verbally to come in?

[Defendant]: I guess yeah.

[Detective]: How did he do that?

[Defendant]: It was more or less like a look as to why are you standing out there[.]

[Detective]: So what you are saying is that he never asked you verbally or non-verbally to come inside of the house, is that correct?

[Defendant]: It was[] more like a past agreement where I didn[’]t have to knock.”

Defendant’s aunt and mother testified that, in a conversation they had with Lemons after the incident, he told them he had invited defendant and his companions to his home that night. Lemons denied making this statement. Defendant’s mother also testified she had taken her son to Lemons’ house at least three times in the last year and had watched him walk in the door without knocking or ringing a doorbell. Lemons testified in response to this that if there were occasions when defendant would enter his house without knocking, it was because Lemons knew he was coming over, saw him at the door, and signaled him to enter.

We first address defendant’s contention that the State did not establish beyond a reasonable doubt that he entered Lemons’ house without authority and, therefore, he could not be convicted of home invasion. He further argues, should this court find he did have consent or authority from Lemons to enter his home in the manner he did, that we should not follow the “limited authority” doctrine espoused by some of our sister districts. This doctrine holds that even if a defendant has consent to enter, the consent is limited to the purpose for which defendant is granted entry. Exceeding the scope of that authority by threatening or injuring an occupant may render the perpetrator guilty of home invasion. See People v. Hudson (1983), 113 Ill. App. 3d 1041, 1044-45, 448 N.E.2d 178, 181; People v. Racanelli (1985), 132 Ill. App. 3d 124, 134-35, 476 N.E.2d 1179, 1186.

In order to prove defendant guilty of home invasion, one element the State had to prove beyond a reasonable doubt was that he entered Lemons’ residence without authority. Defendant believes the evidence demonstrated he had authority to enter the house. He points to testimony of Lisa Gaddis and Lemons that certain people customarily entered the house without knocking. He also admits, however, that both Gaddis and Lemons testified he was not invited into the house that night. Also, he refers to testimony of his mother and aunt that Lemons told them he had invited defendant to his house that night; he points out the denial by Lemons that he made this statement. In short, defendant sets out various conflicts in the testimony concerning what authority he had, if any, to simply walk into Lemons’ house. However, therein lies the problem. It is not the job of a reviewing court to weigh the evidence and reach a verdict; this is the exclusive province of the jury. Where sufficiency of the evidence is challenged, the task of a reviewing court is to decide whether, taking all evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense proved beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U. S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Resolution of factual disputes and assessment of credibility of witnesses is for the jury to decide. A reviewing court may not reverse a conviction, unless the evidence is so unsatisfactory or improbable that a reasonable doubt remains as to defendant’s guilt. People v. Yates (1983), 98 Ill. 2d 502, 518-19, 456 N.E.2d 1369, 1377-78; People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138; People v. Watson (1982), 103 Ill. App. 3d 992, 995, 431 N.E.2d 1350, 1353.

Viewing it in a light most favorable to the State, we cannot say that, after considering all the evidence, we have any reasonable doubt as to the State’s proof on this element of the offense. Therefore, we find there was sufficient evidence for the jury to find defendant guilty of home invasion.

Having decided the jury could have found beyond a reasonable doubt that defendant had no authority from Lemons to simply walk into his home, we need not reach defendant’s further argument urging us not to follow the “limited authority” doctrine regarding consent to enter an occupied residence.

We turn now to defendant’s second claim of error, in which he argues he was denied effective assistance of counsel because his attorney failed to tender a jury instruction on the lesser offenses of battery or aggravated battery. He maintains he was prejudiced by this failure because of the closeness of the evidence. The State disputes this claim, saying that battery and aggravated battery are not included offenses of the crime of home invasion and, therefore, defense counsel was not ineffective in not tendering such instructions. Alternatively, the State argues that even if defense counsel erred in not tendering such instructions, defendant was not prejudiced because the evidence clearly showed he was guilty of home invasion and it is unlikely the jury would have acquitted him of that crime and found him guilty of only aggravated battery.

Defendant claims an accused is entitled to a jury instruction on a lesser offense when the charge sets out the main outline of that lesser offense. In this case, defendant points out the information charging him with home invasion also included an allegation that he intentionally inflicted injuries on Lemons. He also points out that the charge, as well as the evidence at the trial, would have supported jury instructions on battery or aggravated battery.

Where an accused is charged with a single offense, he cannot be convicted of an uncharged offense, unless that offense is an included offense of the one charged. (People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319; People v. Schmidt (1988), 126 Ill. 2d 179, 533 N.E.2d 898.) An included offense is one established by proof of the same or less than all of the facts, or a less culpable mental state, or both, than that which is necessary to establish commission of the charged offense. (Ill. Rev. Stat. 1989, ch. 38, par. 2—9.) In order for an offense to be an included offense, it must not have any elements that are not also present in the greater offense, so that it is impossible to commit the greater offense without also committing the in-eluded offense. People v. Williams (1989), 191 Ill. App. 3d 269, 547 N.E.2d 608.

This court held in People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272, that aggravated battery is not an included offense of home invasion. It was observed that the aggravated battery statute involves the element of “great bodily harm” (Ill. Rev. Stat. 1989, ch. 38, par. 12—4), whereas the home invasion statute requires only an infliction of any injury. In addition, entry of a residence is an element of home invasion, while such entry is not an element of aggravated battery. (Tate, 106 Ill. App. 3d at 778, 436 N.E.2d at 275; see also People v. Triplett (1985), 138 Ill. App. 3d 1070, 487 N.E.2d 39 (first district citing Tate with approval).) Applying the rationale of Tate to this issue, we find that battery is not an included offense of home invasion. As Tate has pointed out, the element of entry into a dwelling, which is required for a home-invasion conviction, is not an element of battery.

However, even were we to find that battery is an included offense of home invasion, we could not conclude that defendant was prejudiced by his counsel’s failure to tender such instructions. In order to sustain a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient, and that this deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) A defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

In the instant case, the evidence was not particularly close on the question of whether defendant had authority or consent from Lemons to enter his home. Lemons testified defendant did not have permission to simply walk into his house. Lemons’ girlfriend also testified defendant was not invited into the house, and that he did not have a standing invitation to walk into the house at any time. The only real conflict in testimony came from defendant’s aunt and mother, who both testified Lemons told them after the incident that he had invited defendant to the house that night. Lemons denied this. The jury could have considered the testimony of defendant’s aunt and mother to be suspect, given their relationship to defendant. We also note that defendant’s own statement to the police, which was introduced into evidence, did not indicate he had been invited to Lemons’ house. This further puts the testimony of his aunt and mother in doubt. The jury could easily have found from all the evidence presented that defendant had no authority to enter Lemons’ house and that he was, in fact, guilty of home invasion. We believe it unlikely that the jury would have acquitted defendant of home invasion and found him guilty of battery, even if an instruction on battery had been given.

We turn to defendant’s final assignment of error, which relates to the number of days of credit which should be given against his sentence “for time spent in custody as a result of the offense for which the sentence was imposed,” under section 5 — 8—7(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—7(b)). The sentencing order of the trial court in the present case fixed 81 days of credit for time served. Defendant claims 84 days would be the correct number, and the State contends 83 days would be the correct number.

Alleged error of this type is commonly presented in criminal appeals before this court. Most often the alleged errors have not been brought to the trial court’s attention prior to the appeal. Because of this continuing problem, we deem it necessary to suggest certain procedures to the various trial courts of this district.

In the present case, the presentence report indicated: “Jail Time 8/22/90 to 9/18/90 and 2/7/91 to present.” The sentence was entered on April 2, 1991. The defendant is entitled to credit under the authority of section 5 — 8—7(b) of the Code for any part of any day he is in custody. People v. Compton (1990), 193 Ill. App. 3d 896, 904, 550 N.E.2d 640, 645.

CALCULATION OF DEFENDANT’S DAYS OF CREDIT

August 1990 (subtract 21 from 31 — 21 must be used so credit for August 22 is given): = 10 days

September 1990: = 18 days

February 1991 (subtract 6 from 28): = 22 days

March 1991: = 31 days

April 1991: - 2 days

Total days of credit earned as of day of sentencing: = 83 days

Additional time will be added for days defendant is held in the county jail after sentencing and before transfer to the Department of Corrections (DOC). The DOC has sufficient information as to additional time served after sentencing and prior to transfer to the penitentiary, and it makes the appropriate additional credit applicable to defendant’s sentence.

Section 5 — 8—7(b) of the Code is absolute, and there is no room for discretion. Credit must be given, and computation of the credit is basically an administrative function, but sentencing itself is a judicial function. The credit time is usually shown in the “Judgment and Sentence,” and is part of the “Mittimus for State Penal Institutions.” This document is often dated, as in the present case, some days after the sentencing hearing and may not be seen by the defendant. It is, however, a part of the record on appeal.

Because of the statutory right to the credit, we hold that the error in computing the credit is not waived by failure of the defendant in this case to call the error to the trial court’s attention. However, proper trial-court practice at the time of sentencing would include taking a few additional minutes to discuss credit-time computation with the prosecutor, defense counsel, and defendant — and then fix the number of days. From our experience, that effort might well avoid the loss of labor necessitated in the appellate process and the remandment process.

Defendant’s conviction is affirmed. The cause is remanded to the circuit court for amendment of the order of judgment and sentence to grant defendant credit for 83 days against his sentence for time served, including the date of sentencing.

Affirmed and cause remanded with directions.

McCullough, j., concurs.