People v. Horrell ( 2008 )

No. 3--06--0295
_________________________________________________________________
Filed April 9, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 05--CF--116
)
PHILLIP L. HORRELL, ) Honorable
) Kathy S. Bradshaw Elliott,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
_________________________________________________________________
The defendant, Phillip L. Horrell, pled guilty to six counts
of forgery (720 ILCS 5/17--3(a)(1), (2) (West 2004)) concerning
three checks. The trial court sentenced the defendant to five
concurrent five-year terms of imprisonment on counts I to V, and
one year of probation on count VI. On appeal, the defendant
argues that three of the six counts for which he was convicted
must be vacated under one-act, one-crime principles. We affirm
and modify the sentence with regard to count VI.
BACKGROUND
In counts I, III, and V, the State charged the defendant
with making three forged checks (720 ILCS 5/17--3(a)(1) (West
2004)). In counts II, IV, and VI, the State charged him with
delivering the same three checks, knowing the checks to have been
made (720 ILCS 5/17--3(a)(2) (West 2004)). Counts I and II
concerned one check, counts III and IV concerned a second check,
and counts V and VI concerned a third check. The court accepted
the defendant's blind plea, and found him guilty of the six
counts.
In the court's written sentencing order, the court imposed
concurrent five-year terms of imprisonment for counts I to V.
This document, however, does not mention count VI. At the
sentencing hearing, the judge said, "I'm gonna put you on
probation when you get out [of prison]." When the judge
pronounced sentence, she stated,
"As to *** all the counts you pled to, *** and they're
gonna run concurrent--on all of the counts, *** with
the exception of Count 6, you are sentenced to five
years in [the] Department of Corrections. And then,
Count 6, you are sentenced to *** one year reporting
probation."
The court denied the defendant's motion to reconsider the
sentences, and the defendant appealed.
ANALYSIS
The defendant contends that we must vacate three of his six
convictions under one-act, one-crime principles because he only
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committed three physical acts of forgery regarding three checks.
The defendant acknowledges that he did not raise this issue in
his motion to reconsider, and thus he has forfeited it on appeal.
Consequently, he asks us to consider this issue for plain error.
In order to preserve an issue for appeal, a defendant must
raise it in a written posttrial motion. People v. Lewis, 223
Ill. 2d 393, 860 N.E.2d 299 (2006). An issue that is not so
preserved is forfeited on review. People v. Woods, 214 Ill. 2d
455, 828 N.E.2d 247 (2005). However, we may consider a forfeited
issue for plain error. 134 Ill. 2d R. 615(a). The plain error
rule permits review of a forfeited question where (1) the
evidence was closely balanced; or (2) the error was so
substantial that it would affect the fundamental fairness of the
proceeding and the integrity of the judicial process. People v.
Hall, 194 Ill. 2d 305, 743 N.E.2d 521 (2000).
In this case, the defendant failed to preserve his argument
by raising it in his motion to reconsider. Therefore, the issue
is forfeited on appeal. Nonetheless, we will consider the
defendant's question for plain error because it concerns the
fundamental fairness of the proceedings and the integrity of the
judicial process. See Hall, 194 Ill. 2d 305, 743 N.E.2d 521.
The relevant portions of the Illinois forgery statute at
issue in this case state the following:
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"(a) A person commits forgery when, with intent to
defraud, he knowingly:
(1) makes or alters any document apparently
capable of defrauding another in such manner that it
purports to have been made by another or at another
time, or with different provisions, or by authority of
one who did not give such authority; or
(2) issues or delivers such document knowing
it to have been thus made or altered." 720 ILCS
5/17--3(a)(1), (2) (West 2004).
The defendant submits that with regard to each check for
which he was convicted under both sections 17--3(a)(1) and 17--
3(a)(2), we should vacate one conviction under one-act, one-crime
principles. The one-act, one-crime rule prohibits multiple
convictions where more than one offense is based on the same
physical act. People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117
(2001); People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977).
This court has found no Illinois case that is directly on
point concerning the defendant's argument. Thus, our application
of the one-act, one-crime rule to sections 17--3(a)(1) and 17--
3(a)(2) of the forgery statute appears to be a case of first
impression.
Prior to the Illinois Supreme Court's ruling in King, 66
Ill. 2d 551, 363 N.E.2d 838, the court considered whether
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multiple convictions should result from multiple acts under the
"independent motivation" test articulated in People v. Stewart,
45 Ill. 2d 310, 259 N.E.2d 24 (1970). In King, however, the
court rejected its previous "independent motivation" test in
favor of the one-act, one-crime rule. The King court defined an
"act" as "any overt or outward manifestation which will support a
different offense." King, 66 Ill. 2d at 566, 363 N.E.2d at 844-
45.
In Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117, our supreme
court reviewed several cases that had occurred since its King
ruling in which it had applied the one-act, one-crime rule. In
People v. Myers, 85 Ill. 2d 281, 426 N.E.2d 535 (1981), the court
held that each of several stab wounds alternately inflicted on
two victims constituted separate physical acts. In People v.
Dixon, 91 Ill. 2d 346, 438 N.E.2d 180 (1982), the court rejected
the defendant's argument that striking the victim several times
with a club constituted one physical act of beating the victim.
Furthermore, the Crespo court declined to apply a six-factor test
concerning multiple convictions for multiple acts that had
developed in various Illinois Appellate Court cases. The Crespo
court reemphasized the simplicity of the King definition of an
act.
In this case, we are called upon to interpret the language
of sections 17--3(a)(1) and 17--3(a)(2) of the forgery statute
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under the one-act, one-crime rule. The cardinal rule of
statutory interpretation is to give effect to the intent of the
legislature. People v. Howard, 374 Ill. App. 3d 705, 870 N.E.2d
959 (2007). The best indication of legislative intent is the
language of the statute, which must be given its plain and
ordinary meaning. Howard, 374 Ill. App. 3d 705, 870 N.E.2d 959.
In the instant case, the defendant was charged under section
17--3(a)(1) with the physical act of making the checks. Under
section 17--3(a)(2), the defendant was charged with the separate
physical act of delivering the forged checks. The act of making
the checks was a different outward or overt manifestation from
the act of delivering the checks. These separate physical acts
support different offenses. Thus, we hold that under the one-
act, one-crime rule articulated in King, 66 Ill. 2d 551, 363
N.E.2d 838, and reaffirmed in subsequent cases, such as Crespo,
203 Ill. 2d 335, 788 N.E.2d 1117, the trial court did not commit
plain error by convicting the defendant of six counts of forgery
concerning the making and delivering of three checks.
We are mindful that an accused, such as the present
defendant, who both makes and delivers the same forged documents,
theoretically could be convicted of three offenses under the
plain language of the forgery statute. Section 17--3(a)(1)
concerns making or altering documents. Section 17--3(a)(3)
concerns possessing such documents with intent to deliver or
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issue them (720 ILCS 5/17--3(a)(3) (West 2004)). Section 17--
3(a)(2) concerns actually delivering or issuing the documents.
We note that in this case, the trial court's sentencing
order did not mention count VI. However, during the sentencing
hearing, the court said that the sentence for count VI was a one-
year term of probation, and "I'm gonna put you on probation when
you get out [of prison]." Furthermore, the court's phrase, "with
the exception of Count 6," ambiguously could have modified either
the concurrent or the five-year aspects of the prison sentences.
The parties submit that the court's oral pronouncement meant that
count VI was to be served consecutively to the defendant's prison
sentences. We disagree.
Under the first sentence of the applicable probation
statute, a court has the authority to make a term of probation
consecutive to a prison term, but only if the total sentence
would not exceed the maximum prison sentence. 730 ILCS 5/5--6--
2(f) (West 2004). Additionally, under the second sentence of the
statute, the court may order a defendant's probation to begin
during his period of mandatory supervised release (MSR). 730
ILCS 5/5--6--2(f) (West 2004).
Forgery is a Class 3 felony. 720 ILCS 5/17--3(d) (West
2004). The sentencing range for a Class 3 felony is from two to
five years. 730 ILCS 5/5--8--1(a)(6) (West 2004). The period of
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mandatory supervised release for a Class 3 felony is one year.
730 ILCS 5/5--8--1(d)(3) (West 2004).
In this case, the trial court stated that the defendant's
term of probation was to begin when he got out of prison. This
oral pronouncement could have meant either that the probation
term was to be served (1) consecutively to his prison sentence;
or (2) during his one-year period of MSR. If the court's
pronouncement concerned a consecutive term of probation, it would
be void, as unauthorized by statute, under the first sentence of
section 5--6--2(f) because the total term would exceed the
maximum five-year prison sentence. See People v. Thompson, 209
Ill. 2d 19, 805 N.E.2d 1200 (2004). However, if the court
intended the defendant's term of probation to begin during his
period of MSR, the court's pronouncement was authorized by the
second sentence of section 5--6--2(f). This second alternative,
regarding serving probation during MSR, is the only alternative
that is authorized by statute. Therefore, we modify the trial
court's sentencing order by making the sentence for count VI a
one-year term of probation to be served during the defendant's
MSR. See 730 ILCS 5/5--6--2(f) (West 2004). Our modification of
the sentence is pursuant to Supreme Court Rule 615(b)(1). 134
Ill. 2d R. 615(b)(1).
Additionally, we note that the State contends that we must
vacate the defendant's conviction for count VI because the
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sentence for count VI was made consecutive to the prison
sentences. For the reasons articulated above, the State's
assertion is both factually and legally incorrect. Thus, we need
not consider it further.
CONCLUSION
For the foregoing reasons, we (1) affirm the judgment of
conviction imposed by the Kankakee County circuit court
concerning counts I through VI; (2) affirm the court's sentences
regarding counts I through V; and (3) modify the sentencing order
by making the sentence for count VI a one-year term of probation
to be served during the defendant's MSR.
Affirmed as modified.
LYTTON and O’BRIEN J. J. concurring.
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