text:
    The PEOPLE of the State of Illinois, Respondent-Appellee, v. Aisha N. MCCLINTON, Petitioner-Appellant.
    Appeal No. 3-16-0648
    Appellate Court of Illinois, Third District.
    Opinion filed May 10, 2018
    Steven W. Becker and Jennifer L. Blagg, both of Chicago, for appellant.
    James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, Peter A. Carusona, and Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 Petitioner Aisha N. McClinton was convicted of aggravated unlawful use of a weapon (AUUW) ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010) ). This court reversed McClinton's AUUW conviction because the statute under which she was prosecuted was declared unconstitutional by the Illinois Supreme Court. See People v. McClinton , No. 3-11-0455 (Dec. 18, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). McClinton filed a petition for a certificate of innocence, which was denied by the trial court. McClinton appealed, arguing (1) the trial court abused its discretion when it denied the petition for a certificate of innocence, (2) she is entitled to a new judge on remand, and (3) her claim for statutory damages must be resolved in the trial court on remand. We vacate the trial court's judgment and remand this case for issuance of a certificate of innocence.

¶ 2 FACTS

¶ 3 McClinton was charged with aggravated unlawful use of a weapon, bringing a firearm into a penal institution, and bringing cannabis into a penal institution. At the bench trial, the parties stipulated to the following sequence of events. On March 14, 2010, Illinois Department of Corrections Lieutenant Robert Banks and Illinois Department of Natural Resources Conservation Officer Holly Vadbunker were assigned to perform field searches in the front drive of Stateville Correctional Center. Correctional Officer S. Jacobs told Banks that a driver, later identified as McClinton, refused to have her car searched. Banks obtained a stop order through the Illinois Department of Corrections and searched the vehicle while McClinton stood next to the vehicle. During the search, Banks found what appeared to be cannabis under the driver's seat.

¶ 4 Afterward, McClinton returned to the vehicle and sat in the driver's seat, and Banks ordered her to put her hands on the steering wheel. McClinton refused to comply, and Banks called Vadbunker and Jacobs for assistance in removing her from the vehicle. When Vadbunker approached the vehicle, she saw McClinton with both hands behind her back. Vadbunker told McClinton to put her hands where Vadbunker could see them, and she complied with Vadbunker's request. Vadbunker asked McClinton what she was hiding, and McClinton stated " 'a gun' " and that the gun was in her waistband. McClinton was removed from the vehicle, and a 9-millimeter firearm was retrieved from the driver's seat.

¶ 5 McClinton was found guilty of AUUW, and the parties agreed to a sentence of 24 months' probation. However, the court rejected the offer and sentenced McClinton to 24 months' probation and 120 days in jail. McClinton objected to the sentence, and the court agreed to stay the mittimus for two weeks. Thereafter, McClinton filed a motion to reconsider sentence, arguing that she did not have an opportunity to present evidence in mitigation, and the court granted the motion. After the court reviewed the mitigation evidence, it sentenced McClinton to 36 months' probation and 156 days in jail. McClinton received 78 days' credit for time served.

¶ 6 In December 2013, this court reversed McClinton's AUUW conviction on the grounds that her conviction was facially unconstitutional pursuant to People v. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. People v. McClinton , No. 3-11-0455 (Dec. 18, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). The State nol-prossed the remaining charges.

¶ 7 In February 2016, McClinton filed for a certificate of innocence. The State filed an objection to the certificate, arguing that McClinton failed to demonstrate factual innocence as required under section 2-702 of the Code of Civil Procedure. 735 ILCS 5/2-702 (West 2016). In a written order, the trial court denied McClinton's petition, stating:

"The Court, having reviewed petitioner's petition for a certificate of innocence, the People's replies to that pleading, applicable case law and the controlling statutes, hereby denies the petition for a certificate of innocence.
To be perfectly blunt, this defendant was, and is not, innocent of this offense on its facts, which all other procedural rulings (i.e. the statue [sic ] being declared unconstitutional on appeal, and the People ultimately moving to nolle prosequi) aside, remains uncontroverted.
Petitioner and her trial counsel agreed to the truthfulness of the testimony of the witnesses from Stateville Correctional Center, namely that they would testify consistently with the information contained in their police reports. And it is factually accurate that Aisha McClinton had a gun on her person while present on the grounds of Stateville Correctional. Petitioner now wishes this Court to disregard the facts of the case, which she agreed to, and instead grant this petition on the appellate court's declaration of unconstitutionality of the statute alone.
Actual innocence means exactly that-that this petitioner, or any other petitioner for that matter, did not commit the offense and would be thus entitled to the certificate. Petitioner's argument that this certificate should issue because 'the Acts did not constitute a felony or misdemeanor against the State' after the Aguilar decision, is not correct. That is a basis for presentation of the certificate; it remains the law of this state that actual factual innocence must be established for relief sought to be granted and petitioner has not established actual factual innocence.
Petition denied."

¶ 8 McClinton filed a motion to reconsider, which the trial court denied without clarification, and she appealed.

¶ 9 ANALYSIS

¶ 10 We note at the outset that the trial court's assertion that the appellate court declared the statute unconstitutional is wrong. This court did not declare the statute unconstitutional, the supreme court did. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. This is clearly stated in this court's earlier order. People v. McClinton , No. 3-11-0455 (Dec. 18, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). The summary order also stated that, "An unconstitutional statute 'dies as of its inception, rather than being void only as of the date of adjudication.' People v. Gersch , 135 Ill. 2d 384, 397 [142 Ill.Dec. 767, 553 N.E.2d 281] (1990)." The effect of the supreme court's ruling was that the crime with which the petitioner was charged and of which she was convicted did not exist in law. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. Petitioner was, therefore, legally innocent. We now consider whether that fact is a sufficient basis for a certificate of innocence.

¶ 11 I. Certificate of Innocence

¶ 12 McClinton argues that the trial court abused its discretion because it had failed to consider certain provisions within section 2-702(d) and (g) of the Code of Civil Procedure ( 735 ILCS 5/2-702(d), (g) (West 2016) ) when it denied the petition. Specifically, McClinton claims that she did not have to prove her innocence and that section 2-702(d) and (g) provide an additional clause that entitled McClinton to a certificate of innocence when her "acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State." Id. § 2-702(d), (g)(3).

¶ 13 McClinton presents an issue of statutory interpretation. The fundamental rule of statutory interpretation is to ascertain and give effect to the intent of the legislature. People v. Fields , 2011 IL App (1st) 100169, ¶ 18, 355 Ill.Dec. 429, 959 N.E.2d 1162. The most reliable indicator of that intent is the language of the statute itself. Id. If the statutory language is clear and unambiguous, it must be applied as written, without resorting to further aids of statutory interpretation. Id. The issue of statutory interpretation is reviewed de novo . Landis v. Marc Realty, L.L.C. , 235 Ill. 2d 1, 6, 335 Ill.Dec. 581, 919 N.E.2d 300 (2009).

¶ 14 Section 2-702 allows a petitioner "to obtain a finding of innocence so that the defendant may obtain relief against the State for wrongful incarceration through the court of claims." People v. Dumas , 2013 IL App (2d) 120561, ¶ 16, 370 Ill.Dec. 515, 988 N.E.2d 713 (citing 735 ILCS 5/2-702(a) (West 2010) and Betts v. United States , 10 F.3d 1278, 1283 (7th Cir. 1993) ). "Whether or not a petitioner is entitled to a certificate of innocence is generally committed to the sound discretion of the court." (Internal quotation marks omitted.) Id. ¶ 17.

¶ 15 Section 2-702(b) states the limits of which offenses we consider in evaluating whether McClinton is entitled to a certificate of innocence:

"(b) Any person convicted and subsequently imprisoned for one or more felonies by the State of Illinois which he or she did not commit may, under the conditions hereinafter provided, file a petition for certificate of innocence in the circuit court of the county in which the person was convicted. The petition shall request a certificate of innocence finding that the petitioner was innocent of all offenses for which he or she was incarcerated ." (Emphasis added.) 735 ILCS 5/2-702(b) (West 2016).

The only crime at issue in the instant case is the unconstitutional AUUW conviction.

¶ 16 Section 2-702(d) explains the sufficiency of the petition. It states:

"(d) The petition shall state facts in sufficient detail to permit the court to find that the petitioner is likely to succeed at trial in proving that the petitioner is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State of Illinois , and the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction." (Emphasis added.) Id. § 2-702(d).

¶ 17 Section 2-702(g) addresses the elements necessary to obtain a certificate of innocence. It specifies:

"(g) In order to obtain a certificate of innocence the petitioner must prove by a preponderance of evidence that:
(1) the petitioner was convicted of one or more felonies by the State of Illinois and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;
(2)(A) the judgment of conviction was reversed or vacated, and the indictment or information dismissed or, if a new trial was ordered, either the petitioner was found not guilty at the new trial or the petitioner was not retried and the indictment or information dismissed; or (B) the statute, or application thereof, on which the indictment or information was based violated the Constitution of the United States or the State of Illinois ;
(3) the petitioner is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State ; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction." (Emphases added.) Id. § 2-702(g).

¶ 18 The State asserts that McClinton cannot prove she is entitled to a certificate of innocence because she voluntarily caused her conviction in violation of section 2-702(d) and (g)(4) (id. § 2702(d), (g)(4) ). Furthermore, the State cites People v. Holmes , 2017 IL 120407, 418 Ill.Dec. 254, 90 N.E.3d 412, to support its argument that the void ab initio doctrine would not retroactively invalidate evidence of McClinton's guilt, and therefore, she must still prove that she did not voluntarily bring about her conviction.

¶ 19 We find the State's reliance on Holmes is without merit. In Holmes , our supreme court ruled that the void ab initio doctrine had not retroactively invalidated probable cause for petitioner's arrest notwithstanding that probable cause was predicated on conduct prohibited by a statute later declared unconstitutional. Id. ¶ 39. The supreme court in Holmes reasoned that, pursuant to the lockstep doctrine, " '[p]olice are charged to enforce laws' " and that " '[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality.' " Id. ¶ 27 (quoting Michigan v. DeFillippo , 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) ).

¶ 20 Here, the issue before this court is not probable cause; rather, the issue is whether McClinton voluntarily brought about a conviction governed by a statute later held void ab initio . When a statute is held to be facially unconstitutional, as is the situation in this case, the statute is said to be void ab initio or void from the beginning. People v. McFadden , 2016 IL 117424, ¶ 17, 406 Ill.Dec. 470, 61 N.E.3d 74. If the AUUW statute is void from the beginning, McClinton's conduct on March 14 would not have voluntarily brought about a conviction under a statute that was "constitutionally infirm from the moment of its enactment." People v. Blair , 2013 IL 114122, ¶ 30, 369 Ill.Dec. 126, 986 N.E.2d 75. This reasoning further comports with the legislative intent of the statute, which is to "distinguish between a finding of not guilty at retrial and actual innocence of the charged offenses." (Internal quotation marks omitted.) Dumas , 2013 IL App (2d) 120561, ¶ 18, 370 Ill.Dec. 515, 988 N.E.2d 713.

¶ 21 The trial court determined that McClinton's argument that her acts did not constitute a felony or misdemeanor against the State did not exempt her from the requisite showing that she was factually innocent, i.e. , she did not voluntarily bring about her conviction under section 2702(d) and (g). However, the evidence shows that McClinton met the elements of section 2702(d) and (g) because (1) she was convicted of AUUW and served 156 days in jail and 36 months' probation; (2) the statute that she was convicted under was later held unconstitutional pursuant to Aguilar ; (3) her acts charged in the indictment of which she was convicted and for which she was incarcerated did not constitute a felony or misdemeanor against the state because the charge was based on a statute later held unconstitutional; and (4) she did not intentionally cause or bring about her conviction because the statute that criminalized McClinton's actions is void ab initio , and therefore, her actions for which she was charged, convicted, sentenced and incarcerated were not criminal at the time.

¶ 22 Therefore, we find that the trial court's ruling was an abuse of discretion, and we vacate its order and remand the matter to the trial court for entry of a new order awarding McClinton a certificate of innocence. McClinton also contends that she is entitled to substitution of judge on remand. Because we vacate the trial court's decision and remand with explicit instructions, we need not address this issue.

¶ 23 II. Statutory Damages

¶ 24 Lastly, McClinton alleges that this case should be remanded for damages pursuant to section 8(c) of the Court of Claims Act ( 705 ILCS 505/8(c) (West 2016) ). In particular, McClinton argues that section 8(c) states that the trial court has the discretion to grant her an award for wrongful incarceration if she obtains a certificate of innocence.

¶ 25 " Section 2-702 makes available an avenue to obtain a finding of innocence so that the [petitioner] may obtain relief against the State for wrongful incarceration through the court of claims." Dumas , 2013 IL App (2d) 120561, ¶ 16, 370 Ill.Dec. 515, 988 N.E.2d 713. Section 8(c) of the Court of Claims Act states, in relevant part:

"The court shall have exclusive jurisdiction to hear and determine the following matters:
* * *
(c) All claims against the State for time unjustly served in prisons of this State when the person imprisoned received a pardon from the governor stating that such pardon is issued on the ground of innocence of the crime for which he or she was imprisoned or he or she received a certificate of innocence from the Circuit Court as provided in Section 2-702 of the Code of Civil Procedure ; provided, the amount of the award is at the discretion of the court; and provided, the court shall make no award in excess of the following amounts: for imprisonment of 5 years or less, not more than $85,350 *** and provided further, the court shall fix attorney's fees not to exceed 25% of the award granted." (Emphasis added.) 705 ILCS 505/8(c) (West 2016).

¶ 26 The term "the court" refers to the Court of Claims, not the trial court. See 705 ILCS 505/1 (West 2016) ("The Court of Claims, hereinafter called the court, is created."). Thus, section 8(c) provides the Court of Claims exclusive jurisdiction to grant or deny awards in claims where a petitioner received a certificate of innocence from the trial court. Accordingly, we reject McClinton's request to remand this case to the trial court for an award of damages.

¶ 27 CONCLUSION

¶ 28 The judgment of the circuit court of Will County is vacated and the matter remanded for issuance of a certificate of innocence.

¶ 29 Vacated and remanded.

Presiding Justice Carter and Justice Schmidt concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stevie SMITH, Defendant-Appellant.
    No. 1-15-1312
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed June 14, 2018 Rehearing denied July 13, 2018
    Christopher Cronson and Brett Cronson, of Cronson & Cronson, Ltd., of Waukegan, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Marci Jacobs, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 The Illinois Supreme Court entered a supervisory order denying defendant Stevie Smith's petition for leave to appeal and directing this court to vacate its initial judgment ( People v. Smith , 2017 IL App (1st) 151312, 418 Ill.Dec. 177, 89 N.E.3d 1011 ). People v. Smith , No. 123082 (Ill. Mar. 21, 2018) (supervisory order). The supervisory order instructed us to consider the effect of People v. Coats , 2018 IL 121926, 423 Ill.Dec. 13, 104 N.E.3d 1102, on the issue of whether defendant's convictions for robbery and aggravated battery of a senior citizen violate the one-act, one-crime rule. After reconsidering the issue, we again vacate the aggravated battery of a senior citizen conviction and hold that the convictions violate the one-act, one-crime rule, as the basis for both convictions-robbery and aggravated battery of a senior citizen-was Smith's single physical act of punching the victim.

¶ 2 Background

¶ 3 Smith and codefendant Jerry Brown were tried on charges of first degree murder, aggravated battery of a senior citizen, robbery, and aggravated battery.

¶ 4 At trial, Deborah Halloran testified that William Burtner served as the commander of the Veterans of Foreign Wars (VFW) post in Midlothian, where she worked as bar manager. At about 9:30 a.m. on November 16, 2009, Burtner and Halloran prepared money for deposit into accounts the VFW maintained at the local A.J. Smith Bank. Deposits for three accounts were placed into three bank deposit bags. An additional amount was placed inside a cigar box so Burtner could open a new account. Burtner left the VFW post with the three deposit bags and the cigar box and drove to the bank.

¶ 5 A teller at the A.J. Smith Bank, Connie Weimar, testified that at about 10:15 a.m., she looked out the window and saw Burtner walking toward the bank carrying bank deposit bags. As Burtner approached the entrance, he passed behind a wall, and Weimar lost sight of him. Weimar next saw a man wearing a hooded sweatshirt walking quickly past the front of the bank towards Burtner. The hood covered the man's head, and Weimar could not see his face. Nothing was in the man's hands. The man disappeared from Weimar's sight for "a matter of seconds." When she next saw him, he was carrying something, had turned around, and was running to the adjacent Wendy's parking lot. He got into the front passenger seat of a black car that then took off. Weimar yelled, "Call 911." Two bank employees brought Burtner inside the bank and sat him down in a chair. Later, the man wearing the hooded sweatshirt was determined to be Smith.

¶ 6 Bank employee Tamara Esposito heard her supervisor yell, "Call 911, I believe somebody was just robbed." Esposito went to the front door and saw Burtner on the ground. Esposito and a security guard helped Burtner. He asked Esposito to retrieve a cigar box from the ground, which contained money and checks. Esposito saw a black sports car speeding out of the Wendy's parking lot. Esposito and the security guard brought Burtner inside the bank. Burtner was slightly bent over and holding his left side near his rib cage, had labored breathing, and was experiencing difficulty speaking. Burtner told Esposito that he was punched in his left side.

¶ 7 A paramedic treated Burtner at the bank. According to the paramedic, Burtner was holding his left side in his back rib area. Burtner complained of pain in that area and also pain when taking deep breaths. The paramedic administered oxygen and transported Burtner to the hospital. The State presented a stipulation that Burtner told the paramedic that "he was hit from behind, and he fell."

¶ 8 Meanwhile, a high-speed police chase of the black car, driven by codefendant Brown, had ensued. Smith and Brown crashed into another automobile and came to a stop. They ran from in opposite directions. Minutes later, police found Brown hiding underneath a car and placed him in custody. During a custodial search, police recovered over a thousand dollars from his right pocket. The A.J. Smith bank deposit bags and money were found inside the black car. The Illinois State Police crime laboratory tested blood samples taken from the passenger's side of the black car. Results of that testing indicated a DNA match with Smith, and he was arrested on February 5, 2010.

¶ 9 Mary Burtner, William's wife, testified that her husband was treated and released from the hospital on the day of the robbery. When he returned home, he was suffering pain, uncomfortable, and favoring his left side. The next day, he felt worse. The following morning, November 18, although still in a lot of pain, he went to chemotherapy for his lung cancer. At the hospital, he couldn't walk due to the pain and needed a wheelchair. When the couple arrived home at about 3 p.m., her husband was still holding his left side and was unable to get out of the car. She assisted him into their home and to bed. He fell asleep. She checked on him, and around 8:30 p.m., she found her husband unresponsive.

¶ 10 Paramedics arrived and performed CPR, administered cardiac medications, and transferred Burtner to the hospital. There were no signs of life. The State presented the death certificate indicating that Burtner was 65 years old.

¶ 11 An assistant chief medical examiner, Dr. Ponni Arunkumar, performed an autopsy. Burtner had lung cancer, two prior heart attacks, and heart disease, and there were three fractured ribs on the left side of his chest wall. The rib fractures, less than three or four days old, were consistent with being punched. Dr. Arunkumar determined that the cause of death was hypertensive cardiovascular disease, with the fractured ribs due to an assault as a significant contributing factor to a heart attack. In her opinion the cause of death was homicide.

¶ 12 The trial court found that the State failed to prove that Smith and Brown caused Burtner's death and so entered a not guilty on the charge of first degree murder. The trial court, however, found that defendants "certainly" inflicted great bodily harm on Burtner and found both men guilty of aggravated battery of a senior citizen. The trial court also found defendants guilty of robbery and aggravated battery. The aggravated battery counts were merged into the aggravated battery of a senior citizen offense. As Burtner was over the age of 60, the trial court elevated the robbery offense from a Class 2 to a Class 1 felony.

¶ 13 The trial court sentenced Smith to 12 years' imprisonment for robbery and a consecutive term of 6 years' imprisonment for aggravated battery of a senior citizen. The court expressly stated that Smith's criminal history and the nature and circumstances of the offense required consecutive sentences to protect the public from further criminal conduct by Smith.

¶ 14 Analysis

¶ 15 Smith contends that his conviction for aggravated battery of a senior citizen should be vacated because it violates the one-act, one-crime rule, as it is based on the same single physical act as his robbery conviction. Smith argues that the only evidence of a physical act committed against Burtner was the single punch that resulted in fractured ribs. Smith also argues that the single punch cannot serve as the basis for both the aggravated battery and the force element for the robbery.

¶ 16 The State responds that Smith committed two separate acts. The State asserts that the punch was one act and the taking of the deposit bags was a separate act. The State contends that the common act of the punch can serve as the basis of both offenses because there was another separate act for the robbery.

¶ 17 Following remand by our supreme court, the State filed a supplemental brief addressing Coats . Defendant responded to the State's argument in his emergency motion for bond pending appeal, which we will consider as his response. The State replied to that argument in responding to defendant's motion for bond. Both parties maintain that their original arguments are supported by Coats .

¶ 18 As a threshold matter, Smith acknowledges that he forfeited this issue for appeal, as he failed to object to the multiple convictions at trial and did not raise the issue in his posttrial motion. People v. Enoch , 122 Ill. 2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). The parties agree, however, that a one-act, one-crime violation is reviewable under the second prong of the plain error doctrine because it affects the integrity of the judicial process. In re Samantha V. , 234 Ill. 2d 359, 378-79, 334 Ill.Dec. 661, 917 N.E.2d 487 (2009).

¶ 19 Whether a conviction should be vacated under the one-act, one-crime rule presents a question of law, which we review de novo . People v. Johnson , 237 Ill. 2d 81, 97, 340 Ill.Dec. 168, 927 N.E.2d 1179 (2010). Under this rule, Smith cannot be convicted of multiple offenses that are based on precisely the same single physical act, and where he is convicted of two offenses, the conviction for the less serious offense must be vacated. Id. Our supreme court has defined an "act" as "any overt or outward manifestation which will support a different offense." People v. King , 66 Ill. 2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977).

¶ 20 In clarifying the one-act, one-crime rule from King , the supreme court explained that a court must first determine whether a defendant's conduct consisted of a single physical act or separate acts. People v. Rodriguez , 169 Ill. 2d 183, 186, 214 Ill.Dec. 451, 661 N.E.2d 305 (1996). A defendant can be convicted of two offenses where a common act is part of both crimes. Id. at 188, 214 Ill.Dec. 451, 661 N.E.2d 305. But where two offenses share a common act, there must be another separate act to sustain the two convictions. See id. at 188-89, 214 Ill.Dec. 451, 661 N.E.2d 305. " 'As long as there are multiple acts as defined in King , their interrelationship does not preclude multiple convictions * * *.' (Emphasis added.)" Id. at 189, 214 Ill.Dec. 451, 661 N.E.2d 305 (quoting People v. Myers , 85 Ill. 2d 281, 288, 55 Ill.Dec. 389, 426 N.E.2d 535 (1981) ).

¶ 21 The State charged Smith with robbery for taking money from Burtner by the use of force or by threatening the imminent use of force. 720 ILCS 5/18-1(a) (West 2008). The aggravated battery of a senior citizen offense alleged that Smith intentionally and knowingly caused great bodily harm to Burtner, a person 60 years of age or older, by striking him about the body, causing injuries. Id. § 12-4.6(a).

¶ 22 The evidence presented at trial demonstrates that Smith committed one single physical act-a single punch to Burtner's left side. The only evidence of any act by Smith was Esposito's testimony that Burtner told her that he was punched in his left side and the State's stipulation that Burtner told a paramedic that "he was hit from behind, and fell." The single punch was used as the basis for the aggravated battery conviction and as the element of force for the robbery conviction. There was no evidence of any other use of force or threat of force by Smith. There was no evidence of a verbal threat. Indeed, because Burtner was punched from behind, he was likely unaware that Smith was approaching him. Based on this record, we find that Smith committed a single physical act.

¶ 23 The State asserts that the taking of the money from Burtner constituted a separate physical act for the robbery and, thus, the two convictions should stand. The State primarily relies on People v. Pearson , 331 Ill. App. 3d 312, 264 Ill.Dec. 487, 770 N.E.2d 1183 (2002), which it claims is directly on point. In Pearson , the defendant grabbed a woman's purse off her shoulder. Id. at 314, 264 Ill.Dec. 487, 770 N.E.2d 1183. A struggle ensued, knocking the woman to the ground. Id. The defendant was convicted of both robbery and aggravated battery. Id. at 316, 264 Ill.Dec. 487, 770 N.E.2d 1183. On appeal, we concluded that the two convictions did not violate the one-act, one-crime rule, as the defendant committed two separate physical acts: he took the woman's purse, and then he pushed her to the ground. Id. at 322, 264 Ill.Dec. 487, 770 N.E.2d 1183.

¶ 24 We find the facts here distinguishable from Pearson . There, the act of grabbing the woman's purse off her shoulder was, in and of itself, a taking of property by force. Pearson's subsequent act of pushing the woman to the ground was a separate act. Here, however, the evidence demonstrates that Smith committed only one physical act, the punch. There was no evidence that Smith used another act of force to take the money from Burtner. There is no evidence explaining how the taking occurred. There is no evidence of a struggle over the deposit bags. There is no evidence that Smith forcefully removed the deposit bags from Burtner's hand. It is possible that Burtner dropped the bags after he was punched and fell to the ground, as he apparently did with the cigar box. Accordingly, Pearson does not apply.

¶ 25 Based on this record, we find that Smith's convictions for robbery and aggravated battery of a senior citizen were both based on Smith's single physical act of punching Burtner. The two convictions violate the one-act, one-crime rule and cannot stand. The aggravated battery of a senior citizen offense is a Class 2 felony and, thus, less serious than the robbery of a senior citizen, which was elevated to Class 1. Accordingly, we vacate Smith's conviction for aggravated battery of a senior citizen.

¶ 26 We find that our supreme court's opinion in Coats does not change our disposition. In Coats , the defendant was convicted of several offenses, including being an armed habitual criminal and armed violence. Coats , 2018 IL 121926, ¶ 1, 423 Ill.Dec. 13, 104 N.E.3d 1102. The evidence showed that Coats was found holding a handgun in one hand and two bags of drugs in the other. Id. ¶¶ 3-4. On appeal, Coats argued that his convictions for being an armed habitual criminal and armed violence violated the one-act, one-crime rule because they were both predicated on the same physical act of possessing the handgun. Id. ¶ 14. The supreme court found that, although the two offenses shared the common act of possession of the handgun, the armed violence conviction involved a second separate act: possession of the drugs. Id. ¶ 17. The court further found that since possession of the handgun was only part of the conduct that formed the basis for the armed violence conviction, the two offenses were not carved from precisely the same physical act. Id. Thus, the court concluded, the two acts did not violate the one-act, one-crime rule. Id. ¶ 32.

¶ 27 In making its ruling, the supreme court rejected Coats's argument that the King analysis implicitly required a determination of whether the offenses shared a "crucial" act. Id. ¶ 18. Coats claimed that if the two offenses shared a common act that formed the "crux" or "essence" of the crime, multiple convictions could not stand. Id. In rejecting the defendant's construction of King , the court stated that it had never applied the one-act, one-crime rule in this manner. I d. ¶¶ 18-19.

¶ 28 Unlike Coats , here, the evidence showed that the defendant committed only one physical act-Smith's single punch to Burtner's left side. No evidence indicates a second separate act or how the taking of the deposit bags occurred. In addition, we reject the State's argument, raised in its supplemental brief, that this court's analysis "implicitly hints at a 'crux' of the crime type of finding" because the force element was crucial to both offenses. We made no "crux" or "essence" of the crime finding. Simply stated, no evidence of a separate physical act exists to support a second conviction.

¶ 29 We vacate the aggravated battery of a senior citizen conviction and affirm Smith's conviction and sentence for robbery of a senior citizen.

¶ 30 Affirmed in part and vacated in part.

Justices Neville and Pucinski concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald R. GAUGER Jr., Defendant-Appellant.
    No. 2-15-0488
    Appellate Court of Illinois, Second District.
    Opinion filed June 27, 2018
    Michael J. Pelletier, Thomas A. Lilien, and Jack Hildebrand, of State Appellate Defender's Office, of Elgin, for appellant.
    Richard D. Amato, State's Attorney, of Sycamore (Patrick Delfino, David J. Robinson, and Stephanie Hoit Lee, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE SPENCE delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Donald R. Gauger Jr., was convicted of violating an order of protection ( 720 ILCS 5/12-3.4(a) (West 2012) ), stalking (id. § 12-7.3(a)(2) ), and aggravated stalking (id. § 12-7.4(a)(3) ). The trial court merged the lesser convictions and sentenced defendant to five years' imprisonment for aggravated stalking. Defendant appeals, contending that he was convicted under an unconstitutional provision of the aggravated-stalking statute. Because defendant's conviction was proper under another, constitutional, portion of the statute, we affirm.

¶ 2 The aggravated-stalking charge alleged that defendant engaged in a course of conduct directed at Crystal Carswell that defendant knew would cause a reasonable person emotional distress while Carswell had an order of protection against him.

¶ 3 At trial, Carswell testified that she had been married to defendant and that they had two children together. She had an active order of protection against him. On September 9, 2012, she got a Facebook message from someone she knew in high school, asking if she had recently sent him a new "friend" request. After looking at the profile the friend told her about, she realized that an old Facebook account of hers had been reactivated.

¶ 4 At about the same time, she received two Facebook messages that she knew immediately defendant had sent. The first message asked about meeting for a date and the second wished her a happy birthday. The messages were from a Facebook account using the name "Ed Kloog." She knew Ed Kloog, an older man who did not live in Illinois at the time. She contacted him about the messages. Kloog responded that he had only one Facebook account and that he was upset that someone was apparently using his name. Carswell then contacted the De Kalb police and filed a complaint against defendant for sending the messages.

¶ 5 The fictitious Facebook activity frightened Carswell. She felt worried every time she left her building. She would constantly look over her shoulder while driving into town, worried that defendant or someone he knew was "going to pop up." She was upset that defendant was "trying to be friends with [her] friends that [she] went to high school with just to find out some things about [her]."

¶ 6 Detective Angel Reyes testified that he investigated Carswell's complaint. A subpoena was issued to Facebook to obtain the Internet Protocol (IP) address for the fictitious Ed Kloog account. Facebook provided two different IP addresses, both of which belonged to Charter Communications (Charter). A subpoena was issued to Charter seeking the names of the persons assigned to the two IP addresses. Charter's response indicated that one of the IP

addresses was assigned to Raymond Peterson at 610 Stearn Avenue in Genoa.

¶ 7 Reyes contacted the Department of Corrections and learned that defendant had recently been paroled and was living at 610 Stearn Avenue. Reyes talked to defendant's parole officer, who told Reyes that, during a recent parole check at defendant's home, he obtained the IP address of defendant's computer. Reyes testified that the IP address obtained by the parole officer was the same one that Reyes was investigating.

¶ 8 Using this information, Reyes obtained a search warrant for defendant's residence. Defendant's computer was seized during the search. A subsequent forensic analysis revealed an image identical to the image used as the profile picture on the fictitious Ed Kloog Facebook account. A compact disc near that computer contained a Facebook post by Carswell and a picture of one of Carswell's children. Police also found a three-ring binder with a page labeled "Facebook" containing four or five fictitious Facebook pages, passwords, and e-mails.

¶ 9 Melvin Smith, of the Chicago Regional Computer Forensics Laboratory, conducted a forensic examination of the data from the computer and worked with Reyes to "bookmark" data that was deemed important to the investigation.

¶ 10 Reyes reviewed Smith's report. Reyes found on the computer a number of photos and e-mails pertaining to Carswell and her family. The forensic analysis also turned up references to Ed Kloog and a copy of one of the photos associated with the fictitious account. The computer also contained a copy of a photo of Carswell in a Kohl's dressing room. Carswell said that she posted the picture on her Facebook page in November 2012. The computer also contained a copy of a Carswell family photo taken at J.C. Penney's that Carswell posted on Facebook.

¶ 11 Reyes spoke with defendant, who initially denied knowing anything about the fictitious Ed Kloog account. He later acknowledged that he knew about the account, but he claimed that it had been created by a woman named "Debbie." Defendant admitted using the account but only to obtain pictures of his and Carswell's daughter from Carswell's Facebook page. Defendant admitted "accessing" Carswell's Facebook page, but he denied ever sending Carswell any messages.

¶ 12 Officer Michael Stewart testified that he collected evidence from defendant's residence. He found documents from an e-mail account related to Carswell, including some Facebook posts and some unopened messages. Stewart found another document that included Carswell's name, date of birth, and Social Security number. Another document appeared to be from someone logged on to a website called Classmates.com, using Carswell's name and asking, "How do you remember Debbie?" Stewart also found mail addressed to Carswell.

¶ 13 The court found defendant guilty on all three charges. The court found that defendant "knowingly engaged in a course of conduct directed at Crystal Carswell and knew or should have known that this course of conduct would cause a reasonable person to suffer other emotional distress." The court specifically found that the evidence "overwhelmingly establishes that the defendant directly or indirectly through third parties monitored and communicated to or about Ms. Carswell through his Internet activities." The court merged the order-of-protection and stalking counts into the aggravated-stalking count and sentenced defendant to five years' imprisonment. Defendant timely appeals.

¶ 14 In his initial brief, defendant contended that, per People v. Relerford , 2016 IL App (1st) 132531, 404 Ill.Dec. 505, 56 N.E.3d 489, his aggravated-stalking conviction violated due process because it was based not on defendant's culpability but on how a "reasonable person" might perceive his conduct. However, during briefing, the supreme court granted leave to appeal in Relerford and we held the appeal in abeyance pending its decision.

¶ 15 The supreme court affirmed, but on a different basis. The supreme court accepted the defendant's argument, raised for the first time, that Illinois's stalking statute is unconstitutional to the extent that it prohibits communicating " 'to or about' " someone. People v. Relerford , 2017 IL 121094, ¶ 28, 422 Ill.Dec. 774, 104 N.E.3d 341 (quoting 720 ILCS 5/12-7.3(c)(1) (West 2012) ). The court held that the phrase was overbroad and thus impermissibly infringed speech protected by the first amendment. Id. ¶¶ 63, 78. Therefore, the court struck that phrase from the statute. Id. ¶ 78. The court also reversed the defendant's conviction, because it could not be sustained under any other portion of the statute. Id. ¶¶ 65-69.

¶ 16 We ordered the parties to submit supplemental briefs addressing the supreme court's decision in Relerford . In his supplemental brief, defendant argues that, because his aggravated-stalking conviction was based on his Facebook messages to Carswell, it was based on his having communicated "to or about" Carswell and thus, under Relerford , his conviction cannot stand.

¶ 17 The State responds that the trial court also found that defendant "monitored" Carswell (see 720 ILCS 5/12-7.3(c)(1) (West 2012) ) and that this portion of the statute is unaffected by Relerford . The State cites circumstantial evidence that defendant used fictitious Facebook accounts to contact Carswell's friends and to download pictures and information about her that were not available to the general public.

¶ 18 Defendant was convicted of aggravated stalking. To convict him of stalking, as charged here, the State had to prove that defendant knowingly engaged "in a course of conduct directed at" Carswell that he knew or should have known would cause a reasonable person to "fear for his or her safety or the safety of a third person" or "suffer other emotional distress." Id. § 12-7.3(a)(1), (a)(2). The statute defines "course of conduct" as follows:

"2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. A course of conduct may include contact via electronic communications." Id. § 12-7.3(c)(1).

Stalking becomes aggravated stalking if the defendant, inter alia , violates an order of protection. Id. § 12-7.4(a)(3).

¶ 19 Defendant contends that his Facebook messages to Carswell constituted "communicat[ing] to or about" her and that Relerford struck this portion of the definition from the statute. We agree with the State however that, unlike in Relerford , defendant's conviction can be sustained under another, constitutional, portion of the statute. The trial court here specifically found that defendant monitored Carswell. The stalking statute does not define "monitoring," but the dictionary defines "monitor" as "to watch, keep track of, or check usu. for a special purpose." Merriam-Webster's Collegiate Dictionary 750 (10th ed. 2001). Even without the Facebook messages, the evidence showed that defendant created at least one fictitious Facebook account in the name of Carswell's friend, downloaded pictures of her and her family, and apparently even obtained mail addressed to her. This course of conduct satisfies that definition, and the court reasonably found that defendant "knew or should have known that this course of conduct would cause a reasonable person to suffer other emotional distress."

¶ 20 In his supplemental reply brief, defendant does not challenge the trial court's findings. Instead, defendant argues that the State's argument is inconsistent with Relerford . Defendant further contends that the stalking statute defines "non-consensual contact" as requiring a physical presence near the victim or on the victim's property and that thus contact through Facebook does not fit the definition. See 720 ILCS 5/12-7.3(c)(6) (West 2012).

¶ 21 First, the State's argument is consistent with Relerford , which dealt only with the "communicates to or about" language in the statutory definition of "course of conduct." Id. § 12-7.3(c)(1). The court struck that language from the statute, but it did not purport to invalidate any other portion of the statutory definition, which includes monitoring.

¶ 22 Second, we reject defendant's statutory-construction argument. The definition of "course of conduct" concludes with the catchall "other non-consensual contact." The statute then defines "non-consensual contact" by reference to examples that require a physical presence. Id. § 12-7.3(c)(6). Defendant apparently posits that, because the catchall provision refers to "other non-consensual contact" (emphasis added) (id . § 12-7.3(c)(1) ), all of the preceding enumerations of specific conduct must also be "non-consensual contact," which requires a physical presence. We disagree.

¶ 23 Agreeing with defendant that all of the specific types of conduct listed in the definition of "course of conduct" require a physical presence would render meaningless the very next sentence, which specifically states, "[a] course of conduct may include contact via electronic communications."Id. ; see McNamee v. Federated Equipment & Supply Co. , 181 Ill. 2d 415, 423, 229 Ill.Dec. 946, 692 N.E.2d 1157 (1998) (in construing statute, courts should avoid interpretations that would render any portion of statute meaningless).

¶ 24 Accordingly, we affirm the judgment of the circuit court of De Kalb County. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 25 Affirmed.

Presiding Justice Hudson and Justice McLaren concurred in the judgment and opinion.