People v. Jackson , 2016 IL App (1st) 133823 ( 2016 )

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People v. Jackson, 2016 IL App (1st) 133823
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RODNEY CHANEY JACKSON, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-13-3823
Filed October 27, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-18677; the
Review Hon. Luciano Panici, Judge, presiding.
Judgment Affirmed in part and vacated in part; remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Ginger Leigh Odom, of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, and John J. Sviokla II, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE ELLIS delivered the judgment of the court,
with opinion.
Justices McBride and Burke concurred in the judgment and opinion.
OPINION
¶1 A jury found defendant Rodney Chaney Jackson guilty of two counts of aggravated
vehicular hijacking, two counts of attempted armed robbery, one count of unlawful use of a
weapon by a felon, and one count of aggravated assault. The trial court sentenced him to 25
years in prison for each of the aggravated vehicular hijackings, 19 years in prison for one
attempted armed robbery, 7 years in prison for the other attempted armed robbery, and 7 years
in prison for unlawful use of a weapon by a felon, all to be served concurrently.
¶2 On appeal, defendant contends that (1) the trial court erred in declining his proposed jury
instruction defining the defense of compulsion where the evidence at trial entitled him to the
instruction and the court’s decision was based on a mistake of fact, (2) this court should vacate
one of his aggravated vehicular hijacking convictions based on the one-act, one-crime
doctrine, (3) this court must vacate his sentences for aggravated vehicular hijacking and
attempted armed robbery because they included firearm-sentencing enhancements that were
not in effect at the time his offenses occurred, (4) the 15-year firearm sentencing enhancement
does not apply to attempted armed robbery, and (5) his mittimus must be corrected to reflect
the jury’s verdicts.
¶3 We affirm defendant’s convictions in part and vacate in part. Defendant was not entitled to
an instruction on the defense of compulsion, where there was no evidence that the individual
with whom defendant hijacked the car made an impending threat of violence toward
defendant. Although defendant’s co-offender testified that, while carrying a gun, he ordered
defendant to get into the hijacked car, that evidence, even if believed by the jury, was
insufficient to establish compulsion.
¶4 But we agree with defendant that one of his convictions for aggravated vehicular hijacking
must be vacated under the one-act, one-crime doctrine. Although more than one individual was
present during the hijacking, the presence of multiple victims does not change the fact that
defendant committed only one criminal act—the taking of a single car—which cannot support
multiple convictions.
¶5 We also agree, as does the State, with defendant’s argument that he must be resentenced
because the trial court applied an unconstitutional sentence enhancement to his aggravated
vehicular hijacking sentence and his 19-year attempted armed robbery sentence.1 We remand
for resentencing and for the issuance of a corrected mittimus.
¶6 I. BACKGROUND
¶7 The State charged defendant with two counts of aggravated vehicular hijacking (counts 4
and 5), two counts of attempted armed robbery (counts 10 and 11), one count of unlawful use
of a weapon by a felon (count 12), and one count of aggravated assault (count 16).
¶8 Prior to trial, defendant’s original defense counsel filed multiple answers to discovery. In
one, dated July 27, 2010, counsel attached a statement from codefendant Leonard Moore, who
had pled guilty to the same aggravated vehicular hijacking and is not a party to this appeal. The
statement said that, on the morning in question, defendant did not rob anyone, did not
1
Defendant’s seven-year sentence for attempted armed robbery is not at issue in this appeal.
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encourage Moore to rob anyone, did not take the vehicle by force or threat of force, and did not
possess any weapons.
¶9 Another answer to discovery, dated November 1, 2010, indicated that defendant might
assert the affirmative defenses of necessity and compulsion. Counsel named Moore as a
possible witness and cited Moore’s previous statement. The State subsequently filed a motion
to disqualify counsel for violating the witness-advocate rule because he was the only witness
present for Moore’s statement. The court granted the motion, finding it foreseeable that
counsel could be called as a witness to Moore’s statement.
¶ 10 Defendant retained new counsel, who filed an answer to discovery on November 28, 2012,
asserting that defendant would “rely on the State’s inability to prove guilt beyond a reasonable
doubt, lack of intent, and lack of knowledge” as his defense. The answer listed Moore as a
possible witness. On October 15, 2013, the first day of trial, counsel filed another answer to
discovery, again asserting that defendant would “rely on the State’s inability to prove guilt
beyond a reasonable doubt, lack of intent, and lack of knowledge” and listing Moore as a
possible witness. Counsel also filed a motion for a continuance based on Moore’s absence,
with Moore’s statement appended to the motion, as well as a motion to “Adopt and Incorporate
All Prior Pleadings Filed by Former Counsel.” The court denied the motion for a continuance
and did not rule on the motion to adopt prior counsel’s pleadings.
¶ 11 At trial, the evidence showed that at approximately 4:30 a.m. on July 28, 2007, Jamie Fair
and Aleah Cooper were with James Brown, Brandon Lewis, and Reginald Burrell in a White
Castle parking lot in Dolton, Illinois. They all were either inside or standing outside Fair’s
vehicle, a black Toyota Solera, with the vehicle’s front doors open. Fair stood outside the
driver’s side door, Brown sat in the driver’s seat, Lewis sat in the passenger’s seat with Cooper
on his lap, and Burrell stood outside on the passenger’s side. Brown’s green Pontiac
Bonneville was parked directly to the right of Fair’s vehicle and was running.
¶ 12 Fair observed two men, defendant and Moore, approach. Moore asked for a cigarette
lighter, and Brown responded they did not have one. Moore then approached Fair, pulled out a
firearm and said, “You are not going nowhere. Give us what you got.” Cooper, whose back
was to the driver’s seat, only heard someone say, “Give up your s***.” She thought it was a
joke until she turned around and saw Moore holding a firearm. Fair testified that Brown gave
Moore his “dog tags” and $65.
¶ 13 Fair testified that defendant approached the passenger’s side of the car. Cooper heard
someone say, “Get out the car,” and slowly began to get out. After Cooper got out, she saw
defendant next to Burrell, “digging” his hands inside Burrell’s pockets. Subsequently, both
Cooper and Fair witnessed Burrell and defendant fight, though Fair did not recall if she told
this to the police. Burrell managed to get away from defendant and ran out of Cooper’s sight.
As Burrell fled, Cooper slowly walked backward and eventually escaped. Cooper said that, at
some point during the incident, defendant told her to empty her pockets and give him her
“s***.”
¶ 14 Fair also tried to escape, but defendant came around the vehicle and said, “No, Shorty, you
ain’t going nowhere.” Defendant motioned toward his waist, which Fair understood as a
gesture that he had a firearm. But Fair acknowledged that she never saw defendant with a gun.
¶ 15 Fair testified that defendant got into the driver’s seat of the running Bonneville and Moore
got into the passenger’s seat. No one had given defendant or Moore permission to get into the
car. As the men drove away into an adjacent parking lot, both Cooper and Fair said that they
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saw gunshots being fired into the air from the vehicle, though neither saw defendant fire any
shots. Cooper and Fair ran into the White Castle and alerted a security guard to what had
happened. Shortly thereafter, the police arrived on the scene.
¶ 16 That morning, Dolton police Detective Major Coleman and his partner, Officer Joe
McNeal, were in their unmarked car near the intersection of 148th Street and Dorchester
Avenue when a green Pontiac Bonneville traveling at a “high rate of speed” nearly hit them.
They activated their lights and sirens and pursued the Bonneville. After Coleman and McNeal
chased the car for about five minutes, the Bonneville crashed into a parked car.
¶ 17 Coleman stopped just behind the Bonneville and got out. Coleman testified that defendant
got out of the Bonneville from the driver’s side and pointed a black handgun at him. Both
Coleman and McNeal drew their guns and fired at defendant multiple times. Defendant fled,
but Coleman eventually found him bleeding in a yard. Coleman did not find a gun on
defendant. McNeal arrested Moore at the scene of the crash.
¶ 18 Later that day, both Fair and Cooper separately viewed photo arrays and identified
defendant as one of the men they saw that morning.
¶ 19 At the conclusion of the State’s case, the parties stipulated that defendant had previously
been convicted of a felony in case No. 05 CR 14459.
¶ 20 Leonard Moore testified for defendant. Moore said that he was in prison for armed robbery
and “vehicular carjacking.” Moore said he went to the White Castle on July 28, 2007, with
defendant and a man named “Do-Do.” Moore admitted to robbing the group of people because
he was high on “[a]lcohol, weed, marijuana, [and] ecstasy” and “pressed for money.” Moore
“took it upon [himself] to rob” the group of people using an unloaded gun. Moore identified
the gun that Detective Coleman said defendant had as the gun he brought to the White Castle.
¶ 21 When Moore robbed the group, defendant stood 15 feet away, outside Do-Do’s car. Moore
testified that defendant did not know that Moore planned to rob anyone. He testified that
defendant did not take anything from anyone, did not have a gun, did not encourage Moore to
rob anyone, and did not have a fight with anyone.
¶ 22 After Moore robbed the group, he decided to get into the green Bonneville because Do-Do
had left. Moore told defendant to “get in the car,” but defendant was reluctant. Moore then told
defendant to “get the f*** in the car.”
¶ 23 Moore testified that defendant got into the driver’s seat while Moore sat on the passenger
side. Moore denied that they fired any gunshots as they drove away.
¶ 24 Moore said that, soon after they left the scene, the police began to follow them. Defendant
was “nervous,” and Moore told him to “keep it moving.” During the drive, Moore held the
firearm in his lap. Defendant never had the weapon, and Moore did not give it to him. Moore
acknowledged that he never threatened defendant with the firearm but said that he
“intimidated” defendant.
¶ 25 Eventually, defendant crashed the car, and Moore saw defendant hop out of the driver’s
side window. Moore testified that, when defendant left the car, there was “nothing in his
hands.” Moore “ducked down” in the car and tried to hide the gun, but the police arrested him.
The gun remained beside him in the vehicle the entire time.
¶ 26 Moore said that he pled guilty to aggravated vehicular hijacking because he “sponsored it”
without defendant’s help. Moore said that defendant only drove the vehicle because he told
him to. Moore also said he had known defendant for two years and previously intimidated him,
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but defendant still “h[u]ng out” with Moore. Moore maintained he “made [the crimes] happen”
and that defendant would not have driven the vehicle unless Moore had told him to because
Moore “intimidate[d]” defendant.
¶ 27 Defendant elected not to testify.
¶ 28 In rebuttal, the State called Dolton police officer Curtis Ranson, Sr., who testified that, on
the morning in question, he saw Officer McNeal putting Moore into handcuffs. Ranson also
saw a gun about 20 to 25 feet behind the Bonneville on the ground.
¶ 29 At the jury instructions conference, defense counsel tendered multiple proposed
instructions to the court, including an instruction defining the affirmative defense of
compulsion. After the court asserted that there had been no prior notice of the defense, which
the State confirmed, defense counsel said that he believed notice had been given by
defendant’s prior defense counsel. The court maintained it did not have any prior notice of the
defense. Defense counsel responded that he had previously filed a motion to incorporate all
prior pleadings from defendant’s prior defense counsel. The court replied:
“I am not denying that. I mean if I—had I seen it, I would give it. That is why—I’d
anticipated that that was going to be the testimony yesterday, and I went through the
file. I didn’t find anything. So there has been no notice; so I am not giving it. Refused.”
¶ 30 The jury found defendant guilty on all counts. Defendant filed an unsuccessful motion for a
new trial, arguing, inter alia, that the trial court erred “in denying [his] proposed jury
instructions,” failing to give a jury instruction on the definition of immediate presence as it
relates to aggravated vehicular hijacking, and failing to give the jury his proposed instruction
on the definition of immediate presence.
¶ 31 The trial court sentenced defendant to 25 years in prison for each of the aggravated
vehicular hijackings (counts 4 and 5), 19 years in prison for one attempted armed robbery
(count 10), 7 years for the other attempted armed robbery (count 11), and 7 years for the
unlawful use of a weapon by a felon (count 12), all to be served concurrently. The court did not
mention a sentence for count 16, the aggravated assault conviction. However, a criminal
disposition sheet in the record reflects that defendant received a one-year sentence for
aggravated assault. The mittimus reflects defendant’s 25-year sentences for aggravated
vehicular hijacking and the 19-year sentence for attempted armed robbery but states that
defendant received 5 years in prison for two convictions of unlawful use of a weapon by a
felon. This appeal followed.
¶ 32 II. ANALYSIS
¶ 33 A. Compulsion Instruction
¶ 34 Defendant first argues that the trial court erred in refusing to instruct the jury on the
affirmative defense of compulsion where the court’s decision was based on a factual error
regarding notice of the defense and there was evidence that Moore compelled defendant to take
the vehicle.
¶ 35 Initially, the State claims that defendant forfeited this argument because he failed to object
to the trial court’s refusal of his proffered instruction and his posttrial motion was not specific
enough. We decline to reach the issue of defendant’s forfeiture because, even if the issue was
forfeited, our result would be the same. That is because defendant argues that the denial of the
instruction was plain error, and when we conduct a plain-error analysis, the first question we
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typically ask is whether any error occurred. People v. Eppinger, 2013 IL 114121, ¶ 19. For the
reasons we set out below, we find that the trial court did not err in denying the instruction,
making a discussion of forfeiture unnecessary.
¶ 36 Defendant argues that the trial court’s refusal to tender his instruction on compulsion was
an error based on a mistaken belief that he had not given the State prior notice of his intent to
raise compulsion as an affirmative defense. He asserts that his original attorney provided the
requisite notice to the State in an amended answer to discovery filed on November 1, 2010.
The State responds that the requisite notice was not given because defendant’s new counsel
filed two answers to discovery, never asserting his intention to raise compulsion as a defense.
Rather, in those two answers, counsel said that he would rely on the State’s inability to prove
defendant guilty, his lack of knowledge, and his lack of intent.
¶ 37 Although the parties dispute the issue of notice, the underlying question remains whether
defendant was entitled to a compulsion instruction at all. We examine that question first. See,
e.g., People v. Houser, 305 Ill. App. 3d 384, 389-90 (1999) (discussing whether defendant was
entitled to have jury instructed on defense of necessity before discussing discovery-notice
issue related to defense).
¶ 38 The threshold for giving an instruction is low. People v. Washington, 2012 IL 110283,
¶ 43. When “there is [any] evidence *** however slight” to support a defense, a defendant is
entitled to an instruction on that theory. Id. In deciding whether the evidence supports an
instruction, the court does not weigh the evidence presented at trial; it simply determines
whether there is some evidence supporting the instruction. People v. Jones, 175 Ill. 2d 126, 132
(1997).
¶ 39 Although the trial court implied that, had there had been prior notice of the compulsion
defense, it would have given the jury an instruction on compulsion, the court ultimately denied
the instruction based on notice, not on the substantive evidentiary question of whether
defendant would have been entitled to the instruction. Because the court never made a ruling
on the substantive issue, we apply de novo review to that question. See People v. Kirklin, 2015
IL App (1st) 131420, ¶ 104 (“Where there is no ruling below for us to review, our legal
consideration is made on a blank slate or de novo.”).
¶ 40 Section 7-11(a) of the Criminal Code of 1961 (720 ILCS 5/7-11(a) (West 2006)), which
defines the affirmative defense of compulsion, provides:
“A person is not guilty of an offense *** by reason of conduct which he performs under
the compulsion of threat or menace of the imminent infliction of death or great bodily
harm, if he reasonably believes death or great bodily harm will be inflicted upon him if
he does not perform such conduct.”
To establish compulsion, the defendant must show that he was under “an impending, imminent
threat of great bodily harm together with a demand that the person perform the specific
criminal act for which he is eventually charged.” People v. Unger, 66 Ill. 2d 333, 339 (1977);
see People v. Scherzer, 179 Ill. App. 3d 624, 644 (1989) (“The threat must be of imminent
death or great bodily harm.” (Emphasis in original.)).
¶ 41 Here, the evidence presented at trial, specifically Moore’s testimony, was insufficient to
support an instruction on compulsion because the evidence did not establish that defendant
entered the Bonneville under threat of great bodily harm or death. Moore testified that he
ordered defendant to get into the car but did not say that he coupled his demand with an
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imminent threat of great bodily harm or death if he failed to do so. Moore acknowledged that
he did not threaten defendant. Nor did Moore testify that he pointed the firearm at defendant.
Absent any contemporaneous threat of death or great bodily harm, defendant could not assert a
compulsion defense. See, e.g., People v. Orasco, 2016 IL App (3d) 120633-B, ¶ 29 (finding no
evidence warranting compulsion instruction where, although defendant repeatedly stated that
“he was just doing what he was told,” there was no “impending threat of great bodily harm”
despite co-offender “pretty much point[ing] the gun” at defendant and telling defendant that if
he “tried to run off *** he would kill” defendant); People v. Williams, 97 Ill. App. 3d 394, 403
(1981) (no compulsion instruction warranted where, although defendant was ordered to drive
getaway vehicle, there was no evidence defendant was threatened with “death or serious
physical harm if she refused to cooperate or that defendant reasonably believed that death or
harm would be inflicted if she refused”).
¶ 42 Defendant argues that no explicit threat was necessary because Moore was armed with a
firearm, implying that orders carried the threat of force. But this court has rejected the notion
that mere possession of a firearm, absent a threat directed to the action in question, is sufficient
evidence to warrant a compulsion instruction. See, e.g., Orasco, 2016 IL App (3d) 120633-B,
¶ 29; People v. Milton, 182 Ill. App. 3d 1082, 1092-93 (1989) (no compulsion instruction
warranted where defendant’s acts were performed because of the codefendant’s “mere
possession of [a] gun, not because he actually threatened defendant *** with the gun”).
Because Moore did not couple his demand that defendant get in the car with a threat of death or
great bodily harm, defendant would not have been able to establish compulsion. Consequently,
even if the trial court erred in denying defendant’s instruction based on a lack of notice to the
State, there would have been no error in denying the instruction.
¶ 43 Defendant maintains that no explicit threat was required because section 7-11(a) of the
Code includes the “menace” of death or great bodily harm. 720 ILCS 5/7-11(a) (West 2006).
And, citing a dictionary definition of “menace” as “a dangerous or possibly harmful person or
thing” (Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/menace
(last visited Sept. 12, 2016)), he argues that Moore presented the menace of death or great
bodily harm by his possession of a firearm. But defendant has cited no case that has adopted
this definition of “menace” and has not argued that our cases holding that someone’s mere
possession of a firearm is insufficient to prove compulsion are wrongly decided. See Milton,
182 Ill. App. 3d at 1092-93. We decline to depart from our precedent. We hold that defendant
was not entitled to a compulsion instruction. The trial court did not err in denying that
instruction, much less commit plain error.
¶ 44 B. One-Act, One-Crime
¶ 45 Next, defendant contends that his two convictions for aggravated vehicular hijacking
cannot simultaneously stand under the one-act, one-crime doctrine because they are based on
his single act of taking one car. The State responds that defendant could be convicted of
multiple counts of aggravated vehicular hijacking because, even though he took one car, his
conduct affected multiple victims.
¶ 46 For several reasons, we conclude that defendant could not be convicted of two offenses for
the act of stealing a single car, even if two people were present during the crime.
¶ 47 First, the plain language of the statute supports defendant’s position. Aggravated vehicular
hijacking occurs when a defendant commits vehicular hijacking and an aggravating factor—in
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this case, defendant’s use of a firearm—is present. 720 ILCS 5/18-4(a)(3) (West 2006). The
vehicular hijacking statute, in turn, states:
“A person commits vehicular hijacking when he or she takes a motor vehicle from the
person or the immediate presence of another by the use of force or by threatening the
imminent use of force.” (Emphasis added.) 720 ILCS 5/18-3(a) (West 2006).
¶ 48 Thus, the act of vehicular hijacking occurs when the offender takes a vehicle from
“another.” The vehicle can be taken “from the person *** of another” or, as in this case, “from
*** the immediate presence of another.” Id.; see, e.g., In re Ricardo A., 356 Ill. App. 3d 980,
991 (2005), overruled on other grounds by In re Samantha V., 234 Ill. 2d 359 (2009) (evidence
sufficient to prove that car taken from immediate presence of victim where “evidence showed
that [victim] was 5 to 10 feet away and even 1 foot away” from car).
¶ 49 The reference to the victim as “another” is significant because it is a defined term. The
Criminal Code defines “[a]nother” as “a person or persons as defined in this Code other than
the offender.” (Emphasis added.) 720 ILCS 5/2-3 (West 2006). So “another” can mean more
than one person. It follows that taking a vehicle from “the immediate presence of another” can
include taking a vehicle from the immediate presence of multiple people. Contrary to the
State’s position, the fact that multiple victims were present during the hijacking of a single
vehicle does not convert a single criminal act into multiple criminal acts; if only one vehicle is
hijacked, only one crime is committed, regardless of the number of victims present during that
act.
¶ 50 Our conclusion is supported by case law interpreting the armed robbery statute. Like
aggravated vehicular hijacking, armed robbery occurs when a defendant “takes property ***
from the person or presence of another.” 720 ILCS 5/18-1, 18-2(a) (West 2006). The language
of these statutes is so similar that vehicular hijacking could be fairly described, for all practical
purposes, as robbery of a specific kind of property, a motor vehicle. Given the similarity in
language, this court has previously analogized to the robbery statute when interpreting the
vehicular hijacking statute. See People v. Aguilar, 286 Ill. App. 3d 493, 497 (1997) (looking to
case law on robbery statute in interpreting vehicular hijacking statute because robbery statute
“contains language virtually identical to that at issue in the vehicular hijacking statute”).
¶ 51 In People v. Mack, 105 Ill. 2d 103, 134-35 (1984), vacated on other grounds, 479 U.S.
1074 (1987), the Illinois Supreme Court held that the defendant should have been convicted of
only one count of armed robbery, where the evidence showed that the defendant shot a bank
security guard and ordered the bank’s loan officer to sit on the floor while his accomplices
jumped behind the bank counter and took money. The defendant was charged with the armed
robbery of both the guard and the loan officer, and both charges alleged that the property taken
was the money from behind the counter. Id. The court distinguished its precedent involving
“multiple takings from multiple victims” (id. at 135) and adopted the rationale of several
appellate court cases, all of which held that only one conviction for armed robbery may stand
when a defendant took money from a cash register in an establishment occupied by more than
one person. Id. at 135-36 (citing People v. Palmer, 111 Ill. App. 3d 800 (1982), People v.
Hunter, 42 Ill. App. 3d 947 (1976), and People v. Scott, 23 Ill. App. 3d 956 (1974)). Because
there “was but one taking of money,” the court held that only one conviction of armed robbery
could stand. Id. at 136.
¶ 52 Consistent with Mack, this court has held that “multiple armed robbery convictions cannot
lie when there is a single taking of property, even when multiple individuals are present and
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threatened.” People v. Scott, 2015 IL App (1st) 133180, ¶ 16; see also People v. Moore, 214 Ill.
App. 3d 938, 944-45 (1991) (holding robberies of two business establishments, which
involved two complaining witnesses each, sufficient to support only two armed robbery
convictions); Hunter, 42 Ill. App. 3d at 951-52 (defendant could not be convicted of multiple
armed robberies where defendant robbed cash register in presence of two people and did not
take additional property from either person).
¶ 53 In light of the similarities between the armed robbery statute and the aggravated vehicular
hijacking statute, it would be incongruous to hold that, under one statute, a defendant who
commits one taking in the presence of multiple victims may only be convicted of one offense,
but under the other statute, a defendant may be convicted of as many offenses as there are
victims. The statutes are essentially the same, differing only in the type of property taken by
the defendant.2
¶ 54 Notably, in the same public act that created the offense of vehicular hijacking, the
legislature also “amended the robbery statute to exclude motor vehicles covered by vehicular
hijacking.” People v. McGee, 326 Ill. App. 3d 165, 169 (2001) (citing Pub. Act 88-351, § 5
(eff. Aug. 13, 1993) (adding 720 ILCS 5/18-3, 18-4)). And at the time of passage of the
vehicular-hijacking legislation, Mack had already been decided. Because the legislature
borrowed nearly verbatim the language of the robbery statute, which our supreme court had
already interpreted in Mack, for the vehicular hijacking statute, we presume that it intended to
incorporate the supreme court’s interpretation of that language. See People v. Coleman, 227
Ill. 2d 426, 438 (2008) (“[W]hen a court interprets a statute and the legislature does not amend
it ***, we presume that the legislature has acquiesced in the court’s understanding of
legislative intent.”).
¶ 55 In this case, the evidence showed that defendant took only one car from the immediate
presence of multiple people. Under the plain language of the aggravated vehicular hijacking
statute and the supreme court’s reasoning in Mack, only one of defendant’s convictions for
aggravated vehicular hijacking may stand.
¶ 56 We respectfully disagree with another decision from this court that reached the opposite
conclusion. As the State notes, in People v. Pryor, 372 Ill. App. 3d 422 (2007), this court held
that a defendant may be convicted of multiple counts of aggravated vehicular hijacking when
more than one victim is involved, even if the defendant takes only one car. First of all, we
cannot square Pryor with the supreme court’s decision in Mack. Second, we do not read the
relevant statutory language the same as the court did in Pryor.
¶ 57 In Pryor, the defendant was convicted of aggravated vehicular hijacking and vehicular
hijacking based on the same single act of taking one vehicle from two people. Id. at 425, 429.
The court focused on the same relevant language as do we—that vehicular hijacking is the
taking of a motor vehicle “ ‘from the person or immediate presence of another’ ” by the use or
threat of force. (Emphasis in original.) Id. at 435 (quoting 720 ILCS 5/18-3(a) (West 2002)).
But the court reached a markedly different conclusion.
2
The only other difference between the robbery and vehicular hijacking statutes is that the latter
statute requires that the taking occur within the “immediate presence” of the victim, not merely within
the “presence” of the victim, a distinction that is not relevant to our discussion. Compare 720 ILCS
5/18-3 (West 2006), with 720 ILCS 5/18-1 (West 2006); see McGee, 326 Ill. App. 3d at 170 (noting this
difference between two statutes).
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¶ 58 The court in Pryor recognized (as do we) that the word “another” could mean more than
one victim (id.) and even went so far as to suggest that the defendant would be correct that only
one act of hijacking was committed “if the vehicular hijacking statute were phrased as being
committed against “ ‘one or more persons ***.’ ” Id. at 435-36. We believe that the word
“another” should have led the court to that precise conclusion—that the single act of hijacking
could be committed against multiple victims. But the court in Pryor reached the opposite
conclusion, primarily based on the fact that the word “person” in the phrase at issue is defined
as “an individual.” Id. (citing 720 ILCS 5/2-15 (West 2002) (defining “person”)). Reading the
definitions of “person” and “another” together, the court in Pryor concluded that the vehicular
hijacking statute only referred to a single individual as a victim. Id.
¶ 59 The court in Pryor reasoned that the word “another” in the statute refers to an individual
separate and apart from the individual (“the person”) from whom the car is taken. The court
wrote:
“Tamika [(one of the victims)] is the ‘person’ *** from whom the car was taken
because it was her car and she was threatened. The car was also taken from the presence
of ‘another’ and that was Marquis [(the other victim)].” Id. at 436.
¶ 60 While on one level we can appreciate the court’s reasoning, its analysis cannot be squared
with a plain reading of the statute. The language “from the person or immediate presence of
another” does not refer to two separate people, “the person” and “another.” The word “person”
in the challenged language does not refer to an individual at all; the word “person” is used here
in a different context, as part of a phrase. As discussed above, the only reference to victims in
the statute is the word “another”—defined as one or more than one person—and the language
preceding that word describes two different ways someone could be robbed of their car: having
it taken from their “person” or from their “immediate presence.”
¶ 61 The phrase “the person” or “the person of another” is by no means foreign to criminal
statutes. Long ago and even at the common law, robbery referred only to a “taking from the
person of another.” See, e.g., People v. Braverman, 340 Ill. 525, 530-31 (1930) (interpreting
the phrase “taking from the person of another” in robbery statute). The current theft statute
refers to the “[t]heft of property from the person.” 720 ILCS 5/16-1 (West 2004); see People v.
Pierce, 226 Ill. 2d 470, 473 (2007) (deciding “whether one commits the offense of theft ‘from
the person’ in Illinois when he steals property that is not in physical contact with the person”).
Battery has been defined as “the willful touching of the person of another.” People v. Grieco,
44 Ill. 2d 407, 411 (1970).
¶ 62 Accordingly, we cannot agree with the court in Pryor that the language in the vehicular
hijacking statute, referring to property taken “from the person or immediate presence of
another,” was intended to refer to two separate victims, “the person” and “another.” The only
reference to a victim in that statute is the word “another,” which is expressly defined as
including one or more than one victim.
¶ 63 We also respectfully disagree with Pryor’s reliance on three Illinois Supreme Court
cases—People v. Shum, 117 Ill. 2d 317 (1987), People v. Thomas, 67 Ill. 2d 388 (1977), and
People v. Butler, 64 Ill. 2d 485 (1976)—for the proposition that, whenever multiple victims are
involved, multiple convictions must be entered. None of those cases involved a single taking of
property in the presence of multiple victims.
¶ 64 In Shum, 117 Ill. 2d at 363, the court held that the defendant could stand convicted of both
murder and feticide, where the defendant shot and killed a pregnant woman and her unborn
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child. Shum is patently distinguishable, as murder and feticide are offenses that criminalize a
particular type of harm to a person, not the taking of property from a person’s presence.
Because the offenses at issue in Shum criminalized harm—not a taking of property—it makes
sense that multiple harms to different people should lead to multiple convictions.
¶ 65 And in Thomas and Butler, the defendants were convicted of multiple counts of robbery for
taking multiple items from multiple victims. See Thomas, 67 Ill. 2d at 389 (defendants took
money from five different people); Butler, 64 Ill. 2d at 487 (defendant and codefendant each
took money from separate victims). Indeed, the supreme court in Mack, in finding that only
one count of armed robbery could lie against the defendant for stealing the bank’s money in the
presence of two individuals, specifically distinguished both Thomas and Butler in this regard.
See Mack, 105 Ill. 2d at 135 (distinguishing Butler and Thomas because “[i]n those cases there
were multiple takings from multiple victims”). Consequently, none of the precedent relied on
by the court in Pryor established that, when an offense criminalizes the taking of property, a
defendant may be convicted of multiple offenses for a single taking.
¶ 66 The supreme court’s decision in Mack lays to rest any notion that the taking of a single
piece of property is anything but a single crime, regardless of how many victims are present
during the taking. We respectfully disagree with the holding in Pryor and decline to follow it.
But even if we agreed with it, to follow it would be to read the vehicular hijacking statute
inconsistently with the supreme court’s interpretation of a robbery statute that contains
substantively identical language. We cannot prefer the holding of an appellate court over that
of our supreme court.
¶ 67 We hold that a defendant may not be convicted of multiple counts of aggravated vehicular
hijacking where he takes only one vehicle, even if multiple individuals are present. One of
defendant’s convictions for aggravated vehicular hijacking must be vacated.3
¶ 68 When multiple convictions violate the one-act, one-crime rule, we must vacate the less
serious of the two convictions. People v. Artis, 232 Ill. 2d 156, 170 (2009). But “when it cannot
be determined which of two or more convictions based on a single physical act is the more
serious offense, the cause will be remanded to the trial court for that determination.” Id. at 177.
In order to determine whether one offense is more serious than another, we look to the possible
punishments for the two offenses and which offense has the more culpable mental state. Id. at
170-71. Here, the two charges alleged the same offense against two different victims, which
had the same mental states and carried the same penalties. We cannot determine which of the
two is more serious and remand to the trial court for that determination.
¶ 69 C. Firearm Sentence Enhancements
¶ 70 Defendant next contends, and the State agrees, that we should vacate his sentences for
aggravated vehicular hijacking and attempted armed robbery because they include
firearm-sentencing enhancements that were unconstitutional at the time of defendant’s
offenses. We note the court applied the 15-year sentencing enhancement to only one attempted
armed robbery conviction (count 10).
3
While defendant did not object below to both convictions or include the issue in a posttrial motion,
a violation of the one-act, one-crime doctrine amounts to plain error exempt from forfeiture. Artis, 232
Ill. 2d at 167-68. There is no procedural bar to vacating one of defendant’s convictions.
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¶ 71 Although defendant acknowledges that he failed to raise the issue at sentencing or in a
motion to reconsider sentence, he argues we may address the issue as plain error. The State
does not contest the error but asserts that we may reach the issue because the sentencing statute
itself was facially unconstitutional. We agree with the State. See People v. Thompson, 2015 IL
118151, ¶ 32 (“A second type of voidness challenge that is exempt from forfeiture and may be
raised at any time involves a challenge to a final judgment based on a facially unconstitutional
statute that is void ab initio.”).
¶ 72 At the time defendant committed his offenses, July 28, 2007, the firearm-sentencing
enhancement for aggravated vehicular hijacking and armed robbery had been declared
unconstitutional in People v. Andrews, 364 Ill. App. 3d 253, 275 (2006), and People v.
Hauschild, 226 Ill. 2d 63, 86-87 (2007), respectively, as violating the proportionate penalties
clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Subsequently, the General
Assembly enacted curative legislation to the problems articulated in both cases. See Pub. Act
95-688 (eff. Oct. 23, 2007) (amending 720 ILCS 5/33A-2, 33A-3); People v. Williams, 2012
IL App (1st) 100126, ¶ 52. Thus, as of October 23, 2007, the constitutional infirmities in the
statutes for aggravated vehicular hijacking and armed robbery disappeared. Williams, 2012 IL
App (1st) 100126, ¶ 52.
¶ 73 But defendant’s offenses occurred prior to the curative legislation, meaning that his
enhanced sentences are unconstitutional. People v. Taylor, 2015 IL 117267, ¶ 17.
Accordingly, we must remand the matter to the trial court for resentencing under the statutes as
they existed prior to the adoption of the sentencing enhancement.4 Id. ¶ 19.
¶ 74 Defendant also asks us to find that, as a matter of statutory construction, attempted armed
robbery cannot be subject to the firearm-sentencing enhancement. But we have already held
that the firearm enhancement should not apply to defendant’s conviction because it was void at
the time of his offense. This renders his argument regarding the applicability of the
enhancement moot, and we will not issue an advisory opinion on its possible application in
other scenarios. See People v. Dunmore, 2013 IL App (1st) 121170, ¶ 12. Here, the proper
remedy for a defendant sentenced to enhanced sentences pursuant to a facially unconstitutional
statute is remandment to the trial court for resentencing under the statutes as they existed prior
to the adoption of the sentencing enhancement. Taylor, 2015 IL 117267, ¶ 19.
¶ 75 D. Mittimus
¶ 76 Defendant finally contends, and the State agrees, that his mittimus does not conform to the
jury’s verdicts. Defendant was convicted of six offenses: two counts of aggravated vehicular
hijacking, two counts of attempted armed robbery, one count of unlawful use of a weapon by a
felon, and one count of aggravated assault. His mittimus, however, reflects the following
convictions: two counts of aggravated vehicular hijacking, one count of attempted armed
robbery, and two counts of unlawful use of a weapon by a felon. Additionally, the mittimus
reflects the two convictions for unlawful use of a weapon by a felon with sentences of five
years in prison, despite the trial court orally pronouncing a sentence of seven years in prison
for a single conviction for unlawful use of a weapon by a felon.
4
As noted above, because the trial court applied the 15-year sentencing enhancement to only one
attempted armed robbery conviction (count 10), defendant shall only be resentenced on that attempted
armed robbery count. His other attempted armed robbery count is not at issue.
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¶ 77 When the mittimus does not correctly reflect the jury’s verdicts and the court’s oral
pronouncement of the defendant’s sentences, the proper remedy is to amend the mittimus to
conform to the judgment and oral pronouncement. People v. Carlisle, 2015 IL App (1st)
131144, ¶¶ 87-88; Pryor, 372 Ill. App. 3d at 438. As we have remanded the matter for
resentencing and for a determination of which of defendant’s two aggravated vehicular
hijacking convictions is more serious, we direct the trial court to issue an accurate mittimus on
resentencing.
¶ 78 III. CONCLUSION
¶ 79 For the reasons stated, we affirm defendant’s convictions for aggravated vehicular
hijacking, vacate one of his convictions for aggravated vehicular hijacking pursuant to the
one-act, one-crime doctrine, remand for a determination of which of those convictions are less
serious and should be vacated, and remand for resentencing and with instructions to issue an
accurate mittimus.
¶ 80 Affirmed in part and vacated in part; remanded.
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