Filed 6/30/10 NO. 4-09-0118
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: RODNEY S., a Minor, ) Appeal from THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of Petitioner-Appellee, ) Logan County v. ) No. 08JD21 RODNEY S., ) Respondent-Appellant. ) Honorable ) Charles M. Feeney, ) Judge Presiding. _________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
On September 10, 2008, the State filed a petition for
adjudication of wardship as to respondent, Rodney S. (born April
23, 1998), asserting that he was a delinquent minor pursuant to
section 5-105(3) of the Juvenile Court Act of 1987 (Juvenile
Court Act) (705 ILCS 405/5-105(3) (West 2008)). Specifically,
the State alleged that on his way home from school, 10-year-old
Rodney committed two counts of aggravated battery (720 ILCS 5/12-
4(b)(8), (b)(18) (West 2008)) against his bus monitor.
Following an October 2008 bench trial, the trial court
(1) found Rodney guilty of both counts of aggravated battery and
(2) adjudicated Rodney a delinquent minor. In January 2009, the
court placed Rodney in the custody of the Department of Children
and Family Services (DCFS) and sentenced him to probation "until
[he] attains 21 years of age."
Rodney appeals, arguing that (1) he was denied his
right to counsel because his court-appointed lawyer acted as both
his trial attorney and guardian ad litem; (2) this court should order the trial court to amend its order of adjudication to
reflect one count of aggravated battery pursuant to the one-act,
one-crime rule; and (3) his sentence is (a) void and (b) exces-
sive. Because we agree that (1) under the one-act, one-crime
rule, one of the trial court's delinquency findings entered
against Rodney should be vacated and (2) Rodney's sentence is
void, we affirm in part, vacate in part, and remand with direc-
tions.
I. BACKGROUND
A. The State's Petition for Adjudication of Wardship
adjudication of wardship as to Rodney, asserting that he was a
delinquent minor pursuant to section 5-105(3) of the Juvenile
Court Act (705 ILCS 405/5-105(3) (West 2008)). The State alleged
that prior to his seventeenth birthday, Rodney committed two
counts of aggravated battery (720 ILCS 5/12-4(b)(8), (b)(18)
(West 2008)) by making contact of an insulting and provoking
nature with his bus monitor, Scott Lindley. The charges were
based, respectively, on the State's allegation that Rodney
committed battery (1) on public property--namely, a school van on
a public roadway (720 ILCS 5/12-4(b)(8) (West 2008))--and (2)
upon a school employee in the performance of his duties (720 ILCS
5/12-4(b)(18) (West 2008)). Following a September 25, 2008,
hearing on the State's petition, the trial court appointed an
attorney to represent Rodney.
- 2 - B. Rodney's October 2008 Bench Trial
Lindley testified that as an employee of the Mount
Pulaski school district, he was charged with escorting students
to and from school. (The school district apparently employed
Lindley to ride in a van--which was driven by another school
district employee--to assist students who needed additional help
or supervision to get to and from school.) Lindley said that
Rodney acted appropriately on the way to school but that problems
arose on the ride home. Specifically, Lindley gave the following
account of the incident that led to the petition for adjudication
of wardship in this case.
"[LINDLEY:] *** [T]he driver *** went
out and got the note ***. [(Apparently, the
school had sent a note home with Rodney for
his mother, and Rodney had thrown that note
out of the van while it was in line to leave
the school.)] ***
[THE STATE]: *** While this was going
on, while his note was outside, was Rodney
pleading to get his note?
[LINDLEY:] He was--I wouldn't say plead-
ing. I would say more like ordering, order-
ing myself or the driver to get his note,
and, yes, he would use some off-colored lan-
guage in order to try to pursue that.
[THE STATE:] Did he attempt to go get
- 3 - the note?
[LINDLEY:] Yes, he did. At one point he
tried to climb over the seat ***. When that
didn't work, at some point he even laid down
in the seat and kicked the ceiling ***.
[THE STATE:] Subsequently[,] did he,
after the incident with the note, state that
he was going to hit you?
[LINDLEY:] Yes, he had told me he was
going to hit me. He told me he was going to
bite me. He told me that he hated me. ***
[THE STATE:] Okay, and what did he sub-
sequently do after he made those threats?
[LINDLEY:] I mean he did hit me, yes.
He hit me on [a] countless number of occa-
sions in the arm. I mean, once we got him in
his seat belt and got him to latch his seat
belt, I held the seat belt because, first of
all, we couldn't move [the van] unless we had
our seat belt on, and the driver clearly told
him *** to put his seat belt on, which he
didn't want to do. But once he got the seat
belt on, I held my hand over the seat belt.
That's when I received quite a few *** blows
to my upper and lower arm.
[THE STATE:] Okay, and soon thereaf-
- 4 - ter[,] did you pick up the other children?
[LINDLEY:] Yeah, we did.
[THE STATE:] And what happened after the
other children were picked up as far as
Rodney's behavior?
[LINDLEY:] It continued. It continued
to disintegrate further from there. ***
* * *
*** [A]t one point Rodney *** [got] down
on the floorboard, and he was looking for
something to hit me with as he indicated ***.
*** Rodney managed to find some stuff down on
the floor. *** He wiped [crushed crackers] on
me. He found a couple of double A batteries
and he threw those at me. *** He pulled [an
armrest] liner out and threw it at me. ***
[THE STATE:] And when you say that he
threw these things at you, did he actually
hit you with them?
[LINDLEY:] Yes, he actually hit me with
them.
[THE STATE:] So he hit you with the
liner and hit you with the batteries?
[LINDLEY:] Yes, and he hit me with his
shoe, and he also wiped his sock on my face
after he pulled his sock off.
- 5 - [THE STATE:] And I'll give you a quote
from the police report. You can tell me if
this is accurate. After he took the sock and
rubbed it in your face, did he state to you,
'Give me my fucking shoe back[,] you bastard.
I don't give a damn what you said.'?
[LINDLEY:] Yes.
[THE STATE:] And am I correct, he had
struck you with one shoe[,] and you took it
away, and did he subsequently take his other
shoe and strike you?
[LINDLEY:] We're moving down the road.
We're still in Bloomington, *** and he takes
his shoe and his sock off, hits me with it,
then throws it up to the front of the van
between the two students so that I couldn't
get his shoe. So, yes.
[THE STATE:] [Y]ou said this conduct
continued all the way back to Mount Pulaski.
Is that correct?
[LINDLEY:] That's correct.
[THE STATE:] And did Rodney at some
point strike you in the face?
[LINDLEY:] Yes, he did.
- 6 - [THE STATE:] Okay, and when did that
occur?
[LINDLEY:] You know, that occurred ***
around Heyworth or *** Atlanta ***. If I
would be *** looking straight forward in
front of me he would hit me in the face. ***
[T]he hits became worse when we were in Lin-
coln. I mean, subsequently worse. I mean
where they were direct punches to my face.
At that point, when we were in Lincoln ***.
[THE STATE:] I just want to clarify, ***
when you were in Lincoln, that's when he
punched you in the face and he asked you if
you liked that, or if that hurt, or something
to that effect?
[LINDLEY:] Yes ***.
Rodney and his mother, Debra S., testified in Rodney's
defense. Rodney's testimony in large part corroborated Lindley's
account of the incident in the van. Debra testified that she (1)
did not know exactly what happened in the van and (2) had been
unsuccessful in her attempts to discipline Rodney.
C. The Trial Court's Findings and Rodney's Sentence
Immediately following Rodney's trial, the trial court
(1) found him guilty of both counts of aggravated battery and (2)
adjudicated him a delinquent minor. Following a January 2009
- 7 - sentencing hearing, the court placed Rodney in the custody of
DCFS and sentenced him to probation "until [he] attains 21 years
of age."
This appeal followed.
II. ANALYSIS
Rodney argues that (1) he was denied his right to
counsel because his court-appointed lawyer acted as both his
trial attorney and guardian ad litem; (2) this court should order
the trial court to amend its order of adjudication to reflect one
count of aggravated battery pursuant to the one-act, one-crime
rule; and (3) his sentence is (a) void and (b) excessive. We
address Rodney's contentions in turn.
A. Rodney's Claim That He Was Denied His Right to Counsel
Rodney first contends that he was denied his right to
trial attorney and guardian ad litem. Specifically, Rodney
asserts that (1) the due-process clauses of the Illinois and
United States Constitutions and (2) the Juvenile Court Act
require that the trial court appoint an attorney to defend
juveniles and a separate individual to act as guardian ad litem.
Rodney posits, citing several secondary sources, that such dual
representation amounts to a per se conflict and, under the facts
of this case, an actual conflict. We disagree.
1. Section 1-5(1) of the Juvenile Court Act
Section 1-5(1) of the Juvenile Court Act provides, in
pertinent part, as follows:
- 8 - "[T]he minor who is the subject of the
proceeding and his parents *** have the right
to be present, to be heard, to present evi-
dence material to the proceedings, to cross-
examine witnesses, to examine pertinent court
files and records and also, although proceed-
ings under this Act are not intended to be
adversary in character, the right to be rep-
resented by counsel. *** Counsel appointed
for the minor *** shall appear at all stages
of the trial court proceeding ***. ***
No hearing on any petition *** filed
under this Act may be commenced unless the
minor who is the subject of the proceeding is
represented by counsel. Notwithstanding the
preceding sentence, if a guardian ad litem
has been appointed for the minor under
[s]ection 2-17 of this Act [(705 ILCS 405/2-
17 (West 2008))] and the guardian ad litem is
a licensed attorney at law of this State, ***
the court may not require the appointment of
counsel to represent the minor unless the
court finds that the minor's interests are in
conflict with what the guardian ad litem
determines to be in the best interest of the
minor." (Emphasis added.) 705 ILCS 405/1-
- 9 - 5(1) (West 2008).
2. Counsel's Obligations in Juvenile Proceedings
Proceedings under the Juvenile Court Act are not
adversarial in the traditional sense. In re B.K., 358 Ill. App.
3d 1166, 1171, 833 N.E.2d 945, 950 (2005). "Unlike a purely
adversarial proceeding, a juvenile case requires the juvenile's
welfare and best interests to be considered." B.K., 358 Ill.
App. 3d at 1171, 833 N.E.2d at 950. In In re Beasley, 66 Ill. 2d
385, 389, 362 N.E.2d 1024, 1026 (1977), the supreme court de-
scribed proceedings under the Juvenile Court Act as follows:
"Although such a proceeding retains certain
adversary characteristics, it is not in the
usual sense an adversary proceeding, but it
is one to be administered in a spirit of
humane concern for and to promote the welfare
of the minor as well as to serve the best
interests of the community."
Put another way, a delinquency proceeding under the Juvenile
Court Act is not a traditional criminal prosecution. A lawyer's
responsibility in a juvenile case is unique because counsel has
to protect the juvenile's best interests even if those interests
do not correspond with the juvenile's wishes. As this court has
previously stated, "[t]he roles of a guardian ad litem and
minor's counsel are not inherently in conflict" because "[b]oth
have 'essentially the same obligations to the minor and to
society.'" In re J.D., 351 Ill. App. 3d 917, 920, 815 N.E.2d 13,
- 10 - 15 (2004), quoting In re R.D., 148 Ill. App. 3d 381, 387, 499
N.E.2d 478, 482 (1986) (also noting that no conflict exists
because the guardian ad litem, like defense counsel, has a duty
of loyalty to the minor, not the State).
We acknowledge the various out-of-state cases and
articles cited in Rodney's brief that challenge the dual role of
counsel and guardian ad litem as a conflict. However, we are
unpersuaded by them. Considering the matter further, we adhere
to the wisdom shown by the cases that we have cited, which we
conclude suggest a commonsense approach to protecting juveniles
in delinquency proceedings. Accordingly, we adhere to our
previously expressed view that the appointment of a lawyer to act
as both a juvenile's trial attorney and guardian ad litem does
not create a per se conflict of interest.
3. The Juvenile Proceedings in This Case
Having concluded that the appointment of a lawyer to
act as both a juvenile's trial attorney and guardian ad litem
does not create a per se conflict of interest, we now turn to
whether Rodney's attorney had an actual conflict in this case.
In support of Rodney's contention that his trial
counsel had a conflict, Rodney notes that his counsel elicited
testimony that had the effect of bolstering the State's case.
Specifically, Rodney's brief to this court states as follows:
"The State's case against Rodney was not
strong. Although there were several wit-
nesses to Rodney's alleged altercation with
- 11 - *** Lindley, including the driver of the van
***, the State presented only Lindley's tes-
timony that Rodney had hit him while the van
passed through Logan County. *** Rather than
exploiting the weakness of the State's case,
however, counsel simply elicited testimony
which bolstered the State's case against his
client. During his 'cross[-]examination' of
Lindley, counsel elicited testimony that
Lindley had not hurt Rodney so as to provoke
the boy's outburst--something which the State
had failed to do in its own examination of
the witness. *** Counsel's case-in-chief was
limited to eliciting testimony from Rodney
which confirmed Lindley's version of events
and presenting evidence that Rodney had lost
privileges at home as a result of the inci-
dent. In light of counsel's actions, it[']s
not surprising that the trial court found the
evidence against Rodney 'overwhelming.'"
The record shows that Rodney's attorney asked Lindley
the following questions on cross-examination:
"Q. [W]ith respect to the first contact
that you made with [Rodney], *** that would
be considered a form of disciplinary action
or restraint?
- 12 - A. The only thing I ever did was hold
his seat belt. That was it.
Q. Okay, there was never any physical
contact you made against him in any fashion?
A. No.
Q. And when you held his seat belt,
were you holding it in a way that put any
pressure on [Rodney]?
Q. Was there any part of the seat belt
that in some way could have been injuring
this minor?
Q. When you had your hands on this
belt, what part of the belt did you have your
hands on?
A. The actual buckle.
Q. And as part of that process[,] were
you putting any weight on the belt?
A. No. I was *** too far away to actu-
ally do that. Besides, I didn't want to be
any closer than I had to be because if I'd
been any closer, you know, that would have
been too close a contact for the amount of
hits and stuff that I received.
Q. All right--
- 13 - A. I left space between he [sic] and I
[sic], and I honestly put my hand out over to
the seat belt.
Q. Okay. Were there periods of time
that would pass where nothing was happening
other than the fact that you were holding
onto the seat belt?
A. Yeah.
Q. And when things would re-initiate,
is there anything specific that happened, or
tell me--
A. It was still bothering him that I
had my hand on his seat belt, but I couldn't
take my hand off the seat belt because my
concern was that he would be out of the seat
belt, and basically the only part of the seat
belt that was even on him was the lap part.
He refused to have the across-the-chest part,
and--
Q. So that wasn't on his body at all?
A. No. ***
Q. Where was it that the cheese crack-
ers were smeared on your face?
A. That was back at the school.
Q. So at that point the bus was not
moving?
- 14 - A. I should say, the second school ***.
No, the bus was not moving. At that time, we
were trying to *** talk him into getting back
into his seat belt.
Q. So he was free. He had free mobil-
ity at that point?
A. He had free mobility, but he was
throwing a tantrum ***. He was looking for
*** something *** and that's when he found
the cheese crackers.
Q. So how ultimately[,] did he end up
back in the seat belt?
A. *** He finally went back to his
seat. He put his seat belt on, and instantly
took it back off. That's when I came to the
conclusion that the only way to keep the seat
belt on was to keep it closed."
These questions did not create a conflict. To the
contrary, these questions were asked to challenge Lindley's
version of events, as well as the accuracy of his recollection.
That Lindley's answers may have reinforced his direct testimony
does not somehow create a scenario in which Rodney's counsel was
acting as an arm of the prosecution.
There is a reason no ineffective-assistance arguments
have been made here; no question exists that Rodney committed
these acts. When, as here, "counsel ha[s] few favorable facts at
- 15 - his disposal, and many unfavorable ones with which to contend"
(People v. Burnett, No. 107807, slip op. at 8 (March 18, 2010),
__ Ill. 2d __, ___, __ N.E.2d __, ___), his duty to his client
and the court is to do the best that he can under the circum-
stances.
We acknowledge that a conflict in a juvenile proceeding
can be significant enough to require dual representation, but
that is clearly not the situation before us. Instead, Rodney's
counsel's representation was carefully crafted to (1) protect
Rodney's interests and (2) assist the court in arriving at an
outcome that would be in Rodney's best interests. We conclude
that under these circumstances, it was both "financially and
functionally prudent to appoint a single attorney to perform both
roles." B.K., 358 Ill. App. 3d at 1174, 833 N.E.2d at 952.
B. Rodney's Claim That His Adjudication Violates the One-Act, One-Crime Rule
Rodney next contends that his adjudication violates the
one-act, one-crime rule. Specifically, Rodney asserts that this
court should instruct the trial court to amend its order of
adjudication to reflect one count of aggravated battery to comply
with the one-act, one-crime rule because the State failed to
differentiate between each individual strike or blow in the
charging instrument. The State responds that although it did not
differentiate between each individual strike or blow, the State
treated Rodney's conduct as multiple acts. In support of its
position, the State points out that it (1) charged Rodney with
multiple counts of aggravated battery and (2) presented evidence
- 16 - to support multiple convictions at trial. For the reasons that
follow, we agree with Rodney.
1. Forfeiture and the Plain-Error Rule
Initially, we note that Rodney has forfeited review of
his one-act, one-crime contention because, as he acknowledges in
his brief, he failed to raise this issue at the trial court
level. See People v. Reed, 177 Ill. 2d 389, 394, 686 N.E.2d 584,
586 (1997) (sentencing issues must be raised in the trial court
to preserve those issues for appellate review). Nonetheless,
Rodney posits that plain-error review is warranted because
violations of the one-act, one-crime rule substantially affect
fundamental fairness, particularly in juvenile proceedings. The
State counters that because no violation of the one-act, one-
crime rule occurred in this case--that is, no error occurred--the
plain-error doctrine does not apply. Because (1) for the reasons
that we explain below, error occurred in this case, and (2) "it
is well established that a one-act, one-crime violation affects
the integrity of the judicial process" (In re Samantha V., 234
Ill. 2d 359, 378, 917 N.E.2d 487, 499 (2009)), we agree with
Rodney.
2. The One-Act, One-Crime Rule
In People v. King, 66 Ill. 2d 551, 363 N.E.2d 838
(1977), the supreme court penned its seminal decision involving
what is often referred to as the one-act, one-crime rule. In
King, the supreme court explained that a defendant may not be
convicted of more than one offense as a result of the same
- 17 - physical act. King, 66 Ill. 2d at 566, 363 N.E.2d at 844. More
than two decades later in People v. Crespo, 203 Ill. 2d 335, 788
N.E.2d 1117 (2001), the supreme court noted that, for purposes of
defining the "act" referred to in King, its precedent demon-
strated that separate blows, although closely related, could be
separate acts sufficient to support multiple convictions.
Crespo, 203 Ill. 2d at 341-42, 788 N.E.2d at 1121, citing People
v. Dixon, 91 Ill. 2d 346, 438 N.E.2d 180 (1982). However, to
sustain multiple convictions for closely related separate blows,
the supreme court noted that the State had to apportion those
separate blows at the trial level. Crespo, 203 Ill. 2d at 345,
788 N.E.2d at 1123 (holding that in such cases "the indictment
must indicate that the State intended to treat the conduct of
defendant as multiple acts in order for multiple convictions to
be sustained").
One-act, one-crime analysis involves the following two
steps: (1) the reviewing court must determine whether the defen-
dant's conduct consisted of one physical act or separate physical
acts and, if the court concludes that the conduct consisted of
separate acts, (2) the court must determine whether any of those
offenses are lesser-included offenses. People v. Harvey, 211
Ill. 2d 368, 389, 813 N.E.2d 181, 194-95 (2004). An "act" is
"any overt or outward manifestation which will support a differ-
ent offense." King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45. As
previously stated, separate blows, although closely related, may
constitute separate acts sufficient to support multiple convic-
- 18 - tions. Crespo, 203 Ill. 2d at 342, 788 N.E.2d at 1121. However,
a defendant may be prejudiced when the State treats closely
related acts as one but changes its course on appeal to assert
separate acts to support separate convictions. See Crespo, 203
Ill. 2d at 342-43, 788 N.E.2d at 1121-22. To sustain multiple
convictions for closely related separate blows, the State must
provide the defendant notice of its intent to treat each blow as
a separate act by apportioning those separate blows at the trial
level. See Crespo, 203 Ill. 2d at 344-45, 788 N.E.2d at 1122-23.
If the court determines that the State pursued the charges
against the defendant as a single physical act, then multiple
convictions are improper and the reviewing court need not proceed
to the lesser-included step of the one-act, one-crime analysis.
People v. Rodriguez, 169 Ill. 2d 183, 186, 661 N.E.2d 305, 306-07
(1996).
Accordingly, we must first determine whether the State
alleged that Rodney's conduct consisted of separate acts or a
single physical act. As this determination is one of law, we
review it de novo. Samantha V., 234 Ill. 2d at 369, 917 N.E.2d
at 494.
3. The Supreme Court's Decision in Samantha V.
In Samantha V., 234 Ill. 2d at 376-77, 917 N.E.2d at
498, the State filed an amended petition for adjudication of
wardship against Samantha, alleging that she committed two counts
of aggravated battery. The first count alleged as follows:
"'On or about June 10, 2005, *** [respondent]
- 19 - committed the offense of AGGRAVATED BATTERY,'
when she 'knowingly caused great bodily harm
to [the victim], in that the above named
minor struck [the victim] about her head
multiple times, causing a laceration which
required stitches.'" Samantha V., 234 Ill.
2d at 377, 917 N.E.2d at 498.
Similarly, count II alleged as follows:
"'[O]n or about June 10, 2005, *** [respon-
dent] committed the offense of AGGRAVATED
BATTERY, *** while [the victim] was on the
street or sidewalk of *** a public way,' when
she 'knowingly caused bodily harm to [the
victim] in that the above named minor struck
[the victim] about the face and/or body mul-
tiple times causing lacerations to her face
and/or body.'" Samantha V., 234 Ill. 2d at
377, 917 N.E.2d at 498.
Samantha argued that her multiple convictions for aggravated
battery violated the one-act, one-crime rule. Samantha V., 234
Ill. 2d at 375-76, 917 N.E.2d at 498. Specifically, Samantha
asserted that the finding of guilt entered against her for
aggravated battery predicated upon great bodily harm (count I)
was based on the same physical act as her conviction for aggra-
vated battery on a public way (count II). Samantha V., 234 Ill.
2d at 375-76, 917 N.E.2d at 498. The State responded that
- 20 - Samantha was charged with and found guilty of those counts based
on separate physical acts that resulted in distinct physical
injuries. Samantha V., 234 Ill. 2d at 376, 917 N.E.2d at 498.
Citing its decision in Crespo, the supreme court
concluded that the counts alleged against Samantha were based on
the same conduct but predicated upon different theories of
criminal culpability. Samantha V., 234 Ill. 2d at 377, 917
N.E.2d at 498-99. The supreme court added that "the State ***
did not differentiate between strikes or blows to the victim when
drafting the charging instrument." Samantha V., 234 Ill. 2d at
377, 917 N.E.2d at 498. Instead, the court noted, "the State
drafted the adjudication petition to include two counts charging
[Samantha] with the same conduct under two different theories."
Samantha V., 234 Ill. 2d at 377, 917 N.E.2d at 498-99.
4. The State's Petition in This Case
In this case, the State filed the petition for adjudi-
cation of wardship against Rodney, alleging that he committed two
counts of aggravated battery against Lindley. The first count
alleged as follows:
"[O]n or about September 3, 2008[,] in Logan
and McLean Counties *** [Rodney] committed
the offense of AGGRAVATED BATTERY, [when he]
knowingly made physical contact of an insult-
ing or provoking nature with *** Lindley, in
that [Rodney] rubbed cheese on *** Lindley's
shirt, threw batteries at Lindley, rubbed a
- 21 - sock in Lindley's face, threw a shoe at
Lindley, and repeatedly punched *** Lindley
in the face with his fists."
Count II alleged as follows:
sock in Lindley's face, threw a shoe at
Thus, the State alleged that Rodney committed two counts of
aggravated battery based on a closely related series of acts
occurring on the same day. Compare People v. Bishop, 218 Ill. 2d
232, 843 N.E.2d 365 (2006) (series of acts were not closely
related where the State charged the defendant with eight counts
of sexual assault that occurred between 1998 and 2000). As
previously stated, a series of closely related acts may be
considered a single act for purposes of the one-act, one-crime
rule when the State charges the acts as a single course of
conduct. See Samantha V., 234 Ill. 2d at 376-77, 917 N.E.2d at
498-99.
Here, as in Samantha V., the State did not differenti-
- 22 - ate between the blows Rodney inflicted on Lindley when it drafted
the charging instrument. Instead, the delinquency petition
included two counts charging Rodney with the same conduct under
two different theories of criminal culpability. That is, the
State's petition alleged that Rodney committed aggravated battery
and used the exact same language to describe the acts as a single
series of events in both counts. The only difference in the two
counts was the language the State used to elevate each battery to
aggravated status--namely, the fact that (1) the battery took
place on public property (720 ILCS 5/12-4(b)(8) (West 2008)) in
count I and (2) Lindley was an employee of a local school dis-
trict (720 ILCS 5/12-4(b)(18) (West 2008)) in count II. The
State charged Rodney under multiple counts for the exact same
conduct--described as a series of acts in its petition--based on
two different theories of criminal culpability.
Because we have determined that the State did not
pursue the charges against Rodney as individual acts, we need not
proceed to the second step in the one-act, one-crime analysis.
Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306-07. Accord-
ingly, we conclude that Rodney's multiple convictions for aggra-
vated battery violated the one-act, one-crime rule.
Although we conclude that Rodney's multiple convictions
for aggravated battery violated the one-act, one-crime rule, we
note, as the supreme court did in Samantha V. and in Crespo
before it, that each blow to Lindley could have supported a
separate finding of guilt for aggravated battery. Samantha V.,
- 23 - 234 Ill. 2d at 378, 917 N.E.2d at 499; Crespo, 203 Ill. 2d at
345, 788 N.E.2d at 1123. However, multiple convictions may only
be sustained "if the charging document reflects the State's
intent to apportion the accused's conduct and prosecute the
accused for multiple crimes." Samantha V., 234 Ill. 2d at 378,
917 N.E.2d at 499. As drafted, the State's petition alleges that
Rodney committed aggravated battery based on a series of acts
that took place in Logan and McLean counties. Had the State
alleged, for example, that Rodney committed aggravated battery in
one county or the other in each count, or in both counties but
based on separate blows, Rodney's conviction on multiple counts
could withstand one-act, one-crime scrutiny. See People v.
Olivieri, 334 Ill. App. 3d 311, 778 N.E.2d 714 (2002) (holding
that the State's information clearly charged the defendant with
three separate sexual assaults); see also Bishop, 218 Ill. 2d at
247, 843 N.E.2d at 374 (holding that no one-act, one-crime issue
existed where the multicount indictment alleged, in part, alter-
native theories, and, in part, that certain crimes were greater-
and lesser-included offenses).
In summary, we agree that under the one-act, one-crime
rule, one of the trial court's delinquency findings entered
against Rodney should be vacated. See Samantha V., 234 Ill. 2d
at 379-80, 917 N.E.2d at 500. When, as in this case, the punish-
ments are identical and the more serious offense cannot be
determined on appeal, the best course of action is to remand the
cause to the trial court for that determination. See Samantha
- 24 - V., 234 Ill. 2d at 379-80, 917 N.E.2d at 500, citing People v.
Artis, 232 Ill. 2d 156, 170, 902 N.E.2d 677, 686 (2009). There-
fore, we direct the court to correct its "Adjudication Order,"
which indicates that Rodney has been found delinquent of "[two]
counts of [a]ggravated [b]attery" once it determines whether
count I or count II is the more serious offense.
C. Rodney's Claim That His Sentence Is Void and Excessive
Rodney next contends that his sentence is void and
excessive. Rodney asserts that his sentence is void because,
under the Juvenile Court Act, the term of probation available to
the trial court was limited to five years, given that the aggra-
vated battery upon which Rodney's adjudication was based did not
constitute a forcible felony. Alternatively, Rodney posits that
"the imposition of a nearly [11]-year term of probation consti-
tuted an abuse of discretion." We agree with Rodney that his
sentence is void.
1. The Standard of Review
Because Rodney's initial challenge to his sentence
requires this court to construe the language of the Juvenile
Court Act, our review is de novo. In re Z.L., 379 Ill. App. 3d
353, 376-77, 883 N.E.2d 658, 677 (2008).
2. Probation Under the Juvenile Court Act
Once a trial court adjudicates a juvenile delinquent,
it may sentence the juvenile to the following period of probation
under section 5-715(1) of the Juvenile Court Act:
"The period of probation *** shall not
- 25 - exceed 5 years or until the minor has
achieved the age of 21 years, whichever is
less, except as provided in this [s]ection
for a minor who is found to be guilty for an
offense which is *** a forcible felony. The
juvenile court may terminate probation ***
and discharge the minor at any time if war-
ranted by the conduct of the minor and the
ends of justice; provided, however, that the
period of probation for a minor who is found
to be guilty for an offense which is *** a
forcible felony shall be at least 5 years."
705 ILCS 405/5-715(1) (West 2008).
3. The Legislature's Definition of a Forcible Felony
The legislature has defined "forcible felony" as
follows:
"'Forcible felony' means treason, first
degree murder, second degree murder, preda-
tory criminal sexual assault of a child,
aggravated criminal sexual assault, criminal
sexual assault, robbery, burglary, residen-
tial burglary, aggravated arson, arson, ag-
gravated kidnaping, kidnaping, aggravated
battery resulting in great bodily harm or
permanent disability or disfigurement and any
other felony which involves the use or threat
- 26 - of physical force or violence against any
individual." 720 ILCS 5/2-8 (West 2008).
4. Rodney's Contention That the Aggravated Battery Upon Which His Adjudication Was Based Did Not Constitute a Forcible Felony
Rodney contends that his sentence is void because,
under the Juvenile Court Act, the term of probation available to
the trial court was limited to five years, given that the aggra-
vated battery upon which Rodney's adjudication was based did not
constitute a forcible felony. Specifically, Rodney asserts that
the language defining a forcible felony as an "aggravated battery
resulting in great bodily harm or permanent disability or disfig-
urement" is limiting language. The State responds that Rodney's
sentence is not void because the plain language of the definition
includes "any other felony which involves the use or threat of
physical force or violence against an individual," which includes
aggravated battery. We agree with Rodney.
When interpreting a statute, the reviewing courts must
ascertain and give effect to the legislature's intent. People v.
Jones, 214 Ill. 2d 187, 193, 824 N.E.2d 239, 242 (2005). The
legislature's intent is best ascertained by examining the lan-
guage of the statute itself. People v. Belk, 203 Ill. 2d 187,
192, 784 N.E.2d 825, 827 (2003). Reviewing courts must construe
the language of a penal statute in favor of the accused. In re
Jaime P., 223 Ill. 2d 526, 539, 861 N.E.2d 958, 966 (2006). "In
interpreting a statute, a court should 'consider, in addition to
the statutory language, the reason for the law, the problems to
- 27 - be remedied, and the objects and purposes sought.'" People v.
Schmidt, 392 Ill. App. 3d 689, 695, 924 N.E.2d 998, 1005 (2009),
quoting People v. Donoho, 204 Ill. 2d 159, 171-72, 788 N.E.2d
707, 715 (2003).
Recently faced with this issue--namely, whether the
legislature intended to exclude aggravated batteries that did not
result in "great bodily harm or permanent disability or
disfigurement"--the First District Appellate Court held as
"[B]y using the word 'other' [in section
2-8 (720 ILCS 5/2-8 (West 2008))] after list-
ing 14 specific felonies, the legislature
clearly intended the residual category to
refer to felonies not previously specified.
Where the statute specifically enumerated
aggravated battery resulting in great bodily
harm or permanent disability or disfigure-
ment, 'other felony' must refer to felonies
other than aggravated battery." Schmidt, 392
Ill. App. 3d at 695, 924 N.E.2d at 1006.
We adopt the First District's analysis in Schmidt and
find support for our conclusion, as did that court, in the 1990
amendment to the forcible-felony statute. Before the 1990
amendment, the definition of a forcible felony included all
aggravated batteries. In 1990, the legislature added the phrase
"resulting in great bodily harm or permanent disability or
- 28 - disfigurement." See Schmidt, 392 Ill. App. 3d at 696, 924 N.E.2d
at 1006 (noting that the legislature added that phrase via Public
Act 86-291 (Pub. Act 86-291, §1, eff. January 1, 1990 (1989 Ill.
Laws 2183, 2183)) to limit the number and types of aggravated
batteries that would qualify as forcible felonies). We agree
with the First District that "the legislature expressed its
intent to limit the number and types of aggravated batteries that
would qualify as forcible felonies" (Schmidt, 392 Ill. App. 3d at
696, 924 N.E.2d at 1006) when it enacted the 1990 amendment.
Accordingly, while we acknowledge the split in the
appellate court on this issue (see, for example, In re Angelique
E., 389 Ill. App. 3d 430, 433, 907 N.E.2d 59, 62-63 (2009)
(Second District, holding that the forcible-felony statute
includes only aggravated batteries that result in great bodily
harm, permanent disability, or disfigurement); compare People v.
Jones, 226 Ill. App. 3d 1054, 1056, 590 N.E.2d 101, 103 (1992)
(Third District, holding that the legislature intended to include
any aggravated battery in the definition of "forcible felony,"
despite acknowledging that its conclusion in that regard was not
free from doubt)), we conclude that the legislature intended the
residual category of section 2-8 (720 ILCS 5/2-8 (West 2008)) to
refer to felonies not previously specified in the preceding list
of felonies contained within that section. Therefore, we (1)
vacate the trial court's sentence of 11 years of probation
because that sentence exceeded the court's authority and is
therefore void and (2) remand for a new sentencing hearing with
- 29 - directions that the trial court sentence Rodney within the 5-year
window for probation provided by section 5-715 of the Juvenile
Court Act.
Because we have vacated Rodney's sentence as void, we
need not address his alternative argument that his sentence was
excessive. However, we note that as part of his excessive-
sentence argument, Rodney claims that the trial court failed to
properly admonish him pursuant to Supreme Court Rule 605(a) (210
Ill. 2d R. 605(a)). Although we do not address Rodney's claim
directly, we remind the trial court that Rule 605(a) requires a
court to admonish a delinquent directly with respect to each of
his rights under Rule 605(a), even when, as in this case, the
delinquent's counsel concedes that he has been properly admon-
ished. Such concessions should not be sought and, when offered,
should be disregarded.
III. CONCLUSION
For the reasons stated, we affirm the judgment of the
trial court in part, vacate in part, and remand with directions
to (1) vacate one finding of delinquency and (2) resentence
Rodney in conformity with this opinion.
Affirmed in part and vacated in part; cause remanded
with directions.
TURNER and POPE, JJ., concur.
- 30 -