Opinion
No. 1-15-0897
08-25-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ITEZ SHIELDS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 13 CR 2769
Honorable Joseph Michael Claps, Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court.
Justices Hall and Lampkin concurred in the judgment.
ORDER
¶ 1 Held: Defendant's convictions for aggravated battery and aggravated unlawful restraint are affirmed where each offense was based on a separate act. Defendant's mittimus is corrected to reflect a sentence of five years' imprisonment for aggravated unlawful restraint.
¶ 2 Following a bench trial, defendant Itez Shields was convicted of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2012)) and aggravated unlawful restraint while using a dangerous weapon (720 ILCS 5/10-3.1 (West 2012)). He was sentenced to respective,
concurrent terms of 20 and 5 years' imprisonment. On appeal, defendant contends that his conviction for aggravated unlawful restraint must be vacated under the one-act, one-crime rule because it was based on the exact same physical act as his aggravated battery conviction. Alternatively, he contends that his mittimus should be corrected to reflect that he was sentenced to five years' imprisonment for aggravated unlawful restraint. For the reasons set forth herein, we affirm the judgment of the trial court and correct the mittimus.
¶ 3 Defendant and codefendant Eric Gill were charged in a seven-count indictment with five counts of attempted first degree murder, one count of aggravated battery with a firearm, and one count of aggravated unlawful restraint with a dangerous weapon. On January 21, 2015, both defendants waived their right to a jury trial and the case proceeded to simultaneous bench trials. As defendant does not challenge the sufficiency of the evidence of either conviction, we recount the facts to the extent necessary to resolve the issue raised on appeal.
¶ 4 Antonio Williams testified that, on the evening of December 28, 2012, he stopped at the Milky Way convenience store at the intersection of 16th Street and Komensky Avenue. Inside of the store, Williams was approached by a man, whom he identified in court as codefendant Gill, who told him to come outside of the store. Williams was not familiar with Gill and did not go outside with him. Williams made a purchase and talked on his cell phone before exiting the store. As he exited the store, Gill and another man, whom Williams identified in court as defendant, approached him in the vestibule between the store and the sidewalk. Defendant pointed a gun at Williams's head and began talking "all in [his] face." When defendant pointed the gun at his face, Williams pushed the gun away by waving his hands in front of his face. Defendant then shot Williams in the stomach and Gill punched him in the face. Defendant, Gill, and Williams
then "fell out" through the door and onto the ground outside of the vestibule. Defendant shot toward Williams a second time, but the bullet missed him. Defendant and Gill then fled the scene.
¶ 5 Williams was able to make it to his automobile and was driven to a hospital by his son's mother. On January 5, 2013, Williams met with two detectives at his house. After signing advisory forms and viewing two separate photo arrays, Williams identified defendant as the man who had shot him and Gill as the man who first approached him in the convenience store. He did not view surveillance footage from the convenience store before viewing the photo arrays.
¶ 6 Surveillance video from the convenience store was played in open court and admitted into evidence. Notably, the surveillance video shows that, as Williams went to leave the vestibule, which led out of the the convenience store, a man ran into the vestibule while pointing a gun at him. The man then lowered his weapon and pinned Williams up against the wall, while keeping his body in close proximity to Williams. A scuffle ensued as Williams attempted to maneuver around the man to leave the vestibule. The man then pushed Williams against a locked door and drew the gun. When Williams raised his hand to move the gun out of his face, the man discharged the gun towards Williams. Fifteen seconds elapsed between the time the man ran into the vestibule and the time he discharged the gun. After the shooting, the man with the gun grabbed Williams and prevented him from leaving the vestibule. He then held Williams in place while another man repeatedly punched Williams in the face.
¶ 7 After argument, the trial court found defendant guilty of aggravated battery and aggravated unlawful restraint and told the parties to be prepared to discuss one-act, one-crime principles at sentencing. The court denied defendant's motion for a new trial.
¶ 8 At sentencing, both parties addressed the issue of whether the aggravated battery and aggravated unlawful restraint convictions arose from the same act. In sentencing defendant to concurrent terms of 20 years' and 5 years' imprisonment, the trial court noted:
"[g]enerally speaking, an aggravated battery, if you're striking someone, that can only happen if you hold them to strike them, detain them and strike them. You can't strike them on the run, usually. I mean, you might be able to chase them and then from behind; but that's not the case here. The case here is there were significant times in the video where the victim was being restrained by both individuals. The shooting happened separately. And so I don't think they merge. I think they're separate offenses, separate sentences."
The trial court denied defendant's motion to reconsider sentence, and defendant filed a timely notice of appeal.
¶ 9 Defendant appeals, arguing that his conviction for aggravated unlawful restraint violated the one-act, one-crime rule because it was based on the exact same physical act as his conviction for aggravated battery.
¶ 10 In setting forth this argument, defendant acknowledges that he failed to raise this issue in the trial court, but contends, the State concedes, and we agree, that unpreserved claims regarding violations of the one-act, one-crime rule implicate the integrity of the judicial process and may be reviewed under second prong of the plain-error doctrine. People v. Nunez, 236 Ill. 2d 488, 493 (2010); People v. Artis, 232 Ill. 2d 156, 167-68 (2009); see also Ill. S. Ct. R. 615(a) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court."). However, before considering whether the plain-error exception to
the rule of forfeiture applies, we must first determine whether any error occurred. People v. Herron, 215 Ill. 2d 167, 187 (2005). Here, we find that it did not.
¶ 11 Under the one-act, one-crime rule, a defendant may not be convicted of multiple offenses based on the same physical act. People v. Almond, 2015 IL 113817, ¶ 47. To determine whether simultaneous convictions violate the one-act, one-crime rule, this court performs a two-step analysis. People v. Miller, 238 Ill. 2d 161, 165 (2010). First, we determine whether the defendant's conduct in committing the two offenses consisted of multiple physical acts or a single physical act. "Multiple convictions are improper if they are based on precisely the same physical act." Miller, 238 Ill. 2d at 165. An "act" is defined as any overt or outward manifestation which will support a different offense. People v. King, 66 Ill 2d 551, 566 (1977). If we determine that the offenses stem from separate acts, we move on to the second step of the analysis and determine whether any of the offenses are lesser-included offenses. Miller, 238 Ill. 2d at 166. We review de novo claims that separate convictions violate the one-act, one-crime rule. Almond, 2015 IL 113817, ¶ 47.
¶ 12 In this case, defendant does not argue that aggravated unlawful restraint is a lesser-included offense of aggravated battery. Rather, he solely argues that his aggravated unlawful restraint conviction must be vacated because it was based on the same physical act as his conviction for aggravated battery.
¶ 13 Initially, we note that, contrary to defendant's argument that the State did not attempt to distinguish two separate acts necessary to sustain a conviction for each offense, the record shows that the State charged defendant with aggravated battery and aggravated unlawful restraint based on different physical acts. Specifically, count VI of the indictment charged defendant with
aggravated battery in that he "knowingly discharged a firearm *** and caused injury to another person, to wit: shot Antonio Williams about the body." Count VII of the indictment charged defendant with aggravated unlawful restraint in that he "knowingly, without legal authority, detained Antonio Williams, while using a deadly weapon, to wit: a firearm." As such, we decline defendant's invitation to deem that his convictions arose from the same physical act. See People v. Crespo, 203 Ill. 2d 335, 343-45 (2001) (even if the State could have carved out multiple acts, where the indictment alleges the same act or series of acts, the convictions are deemed to have arisen from the same act). Rather, we consider the evidence presented at trial to determine whether defendant's convictions were based on the same physical act.
¶ 14 Here, we find that the trial court did not err in convicting defendant of both aggravated battery and aggravated unlawful restraint where the convictions arose out of separate physical acts. The record shows that defendant's act of using the firearm to detain Williams in the vestibule was separate from his subsequent act of pulling the trigger to discharge the gun and cause injury to Williams. As noted by the trial court, the surveillance video shows that defendant's act of restraining Williams and shooting him happened separately. In the video, defendant's restraint of Williams began about 15 seconds before, and continued for some time after, the offense of aggravated battery was completed, i.e., defendant shot Williams. The video shows that defendant restrained Williams while pointing a gun at him. Defendant then lowered the weapon and pinned Williams against the wall of the vestibule. As Williams attempted to flee, defendant again drew his weapon. When Williams raised his hand to move the gun away from his face, defendant discharged the gun. After discharging the gun, defendant grabbed Williams and prevented him from leaving the vestibule. He also held him in place while another man
repeatedly punched him in the head. As such, defendant's convictions were based on separate acts and, thus, the trial court did not err in convicting defendant of both offenses. See People v. Alvarado, 235 Ill. App. 3d 116, 117 (1992) ("While the offense of unlawful restraint is often committed in conjunction with other offenses, it is punishable as a separate crime if the restraint is independent of the other offenses and arose out of separate acts.").
¶ 15 In reaching this conclusion, we are not persuaded by defendant's reliance on People v. Yeast, 236 Ill. App. 3d 84 (1992). Defendant argues that the force he used to detain Williams merely constituted the force necessary to complete the aggravated battery. In Yeast, the defendant was convicted of unlawful restraint and criminal sexual abuse for lying on top of the victim while she slept and fondling her breasts. Yeast, 236 Ill. App. 3d at 86. The victim attempted to push the defendant off of her five times before she was successful. Yeast, 236 Ill. App. 3d at 86. The appellate court vacated the defendant's unlawful restraint conviction for violating the one-act, one-crime principles, finding that this restraint "was slight" and "that the conduct alleged to constitute unlawful restraint was only that inherent in every case of sexual abuse by force." Yeast, 236 Ill. App. 3d at 91. Here, defendant's restraint of Williams was not inherent in every case of aggravated battery. Rather, as mentioned, defendant's restraint of Williams began 15 seconds before, and continued for some time after, the offense of aggravated battery was completed.
¶ 16 In sum, because defendant's convictions for aggravated battery and aggravated unlawful restraint were not based on the same physical act, the trial court did not err in convicting him of both offenses. As there was no error, there can be no plain error, and, thus, defendant has forfeited his argument on appeal.
¶ 17 In the alternative, defendant argues, the State concedes, and we agree, that his mittimus should be corrected to reflect that the trial court sentenced him to five years' imprisonment on his aggravated unlawful restraint conviction. At sentencing, the trial court sentenced defendant to five years' imprisonment for aggravated unlawful restraint to run concurrently with his 20-year sentence for aggravated battery. However, his mittimus reflects a sentence of seven years' imprisonment for his aggravated unlawful restraint conviction. "When the oral pronouncement of the court and the written order are in conflict, the oral pronouncement controls." People v. Jones, 376 Ill. App. 3d 372, 395 (2007). As we may correct the mittimus without remanding the cause to the trial court (People v. Smith, 2016 IL App (1st) 140039, ¶ 19), we direct the clerk of the circuit court to correct the mittmus to reflect defendant's sentence of five years' imprisonment for aggravated unlawful restraint.
¶ 18 Affirmed; mittimus corrected.