People v. Avelar

2017 IL App (4th) 150442, 81 N.E.3d 607

• Court: Appellate Court of Illinois
• Decided: July 12, 2017
• Docket: 4-15-0442
• Status: Unpublished

Opinion

FILED July 12, 2017 2017 IL App (4th) 150442 Carla Bender 4th District Appellate NO. 4-15-0442 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County LUIS H. AVELAR, ) No. 14CM118 Defendant-Appellant. ) ) Honorable ) Mark S. Goodwin, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Harris and Appleton concurred in the judgment and opinion.

OPINION

¶1 In January 2015, the State charged defendant, Luis H. Avelar, with three counts of

violation of an order of protection. The order of protection at issue prohibited defendant from

being within 200 feet of his ex-girlfriend, L.H., and their children, E.A., P.A., and O.A. At the

March 2015 jury trial, the evidence showed that defendant picked up two of his children from

L.H.’s home in Watseka and took them to Hoopeston, where defendant lived. Defendant then

called L.H. and told her that he and the children were at the McDonald’s in Hoopeston. When

L.H. went to McDonald’s to pick up the kids, she and defendant argued. Police later arrested de-

fendant for violating the order of protection. The jury found defendant guilty of all three counts

of violating the order of protection. The trial court later sentenced defendant to two years’ proba-

tion.

¶2 On appeal, defendant argues that two of his convictions for violation of an order of protection must be vacated because they violate the one-act, one-crime doctrine. We disagree

and affirm.

¶3 I. BACKGROUND

¶4 Because the parties do not dispute the facts of this case, we provide only the fac-

tual background necessary to place defendant’s claim in context.

¶5 In August 2013, the trial court entered a plenary order of protection against de-

fendant. The petitioner was L.H.—defendant’s ex-girlfriend and the mother of three of his chil-

dren. The petition sought to protect L.H. and L.H.’s daughter—S.M.—along with the children of

defendant and L.H.—E.A., P.A., and O.A. The order of protection required, among other things,

that defendant stay 200 feet from (1) L.H., (2) S.M., (3) E.A., (4) P.A., and (5) O.A. The order

was effective until August 2015.

¶6 In February 2014, the State filed an information against defendant, which the

State amended in January 2015. The amended information charged defendant with three counts

of violating an order of protection (720 ILCS 5/12-3.4(a)(1)(i) (West 2014)), alleging that de-

fendant “had contact” with L.H., E.A., and P.A., respectively.

¶7 At the March 2015 jury trial, the evidence showed that on February 16, 2014, de-

fendant picked up E.A. and P.A. from their home in Watseka, where they lived with L.H., and

took them to Hoopeston, where defendant lived. Defendant later called L.H., told her he was

with the children, and asked her to meet him at the McDonald’s in Hoopeston so L.H. could take

the children back to her home. L.H. met defendant and the children at McDonald’s, where an ar-

gument began. Police were called, and defendant was arrested for violating the order of protec-

tion. During closing argument, the State argued that defendant had violated the order of protec-

tion three times, in that “defendant was there at the *** McDonald’s *** in Hoopeston. *** [H]e

-2- came and got the kids and drove ’em, drove ’em there.”

¶8 The jury found defendant guilty of all three counts of violating an order of protec-

tion. The trial court sentenced him to two years’ probation.

¶9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 Defendant argues that we should vacate two of his convictions for violating an

order of protection because they violate the one-act, one-crime doctrine. For the reasons that fol-

low, we disagree and affirm.

¶ 12 A. Plain Error

¶ 13 Defendant concedes that he forfeited his argument by failing to raise it in the trial

court. The parties agree that a forfeited one-act, one-crime claim is reviewable under the second

prong of the plain-error doctrine, as a clear or obvious error “so serious that it affected the fair-

ness of the defendant’s trial and challenged the integrity of the judicial process.” People v. Artis,

232 Ill. 2d 156, 165, 902 N.E.2d 677, 683 (2009). In this case, we choose to determine first

whether a one-act, one-crime violation occurred at all. See People v. Vesey, 2011 IL App (3d)

090570, ¶ 21, 957 N.E.2d 1253 (explaining that although courts generally determine, as the first

step of a plain-error analysis, whether error occurred at all, courts are not bound to conduct the

analysis in that sequence).

¶ 14 B. Statutory Language

¶ 15 When analyzing whether a one-act, one-crime violation occurred, a court should

first answer the prerequisite question of whether the statutory language in question permitted

multiple convictions in the manner alleged and proved by the State. See People v. Almond, 2015

IL 113817, ¶ 33, 32 N.E.3d 535 (“We must first determine whether the [unlawful use of a weap-

-3- on (UUW)] by a felon statute authorizes separate offenses to be charged for the simultaneous

possession of a firearm and ammunition ***.”).

¶ 16 The defendant in Almond argued that his multiple weapons convictions—

(1) armed habitual criminal for possession of a firearm and (2) UUW by a felon for possession of

ammunition inside that firearm (720 ILCS 5/24-1.1(e) (West 2008))—violated the one-act, one-

crime doctrine. Almond, 2015 IL 113817, ¶ 32, 32 N.E.3d 535. As the court explained, “ ‘one-

act, one-crime principles apply only if the statute is construed as permitting multiple convictions

for simultaneous possession.’ ” Id. ¶ 33 (quoting People v. Carter, 213 Ill. 2d 295, 301, 821

N.E.2d 233, 237 (2004)). The UUW by a felon statute provided that “[t]he possession of each

firearm or firearm ammunition in violation of this Section constitutes a single and separate viola-

tion.” 720 ILCS 5/24-1.1(e) (West 2008). Relying on that language, the Almond court held that

the UUW by a felon statute “authorizes separate convictions for the simultaneous possession of a

firearm and ammunition in a single loaded firearm.” Almond, 2015 IL 113817, ¶ 43, 32 N.E.3d

535. The court then went on to determine that the multiple convictions were supported by sepa-

rate acts and, therefore, no one-act, one-crime violation occurred. Id. ¶ 50.

¶ 17 In Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 808 N.E.2d 525 (2004),

the Second District engaged in a similar process of statutory interpretation, despite describing

that process somewhat differently than did the supreme court in Almond. In Rich, the defendant

was charged with multiple violations of Sugar Grove’s noise ordinance (Sugar Grove Village

Code § 4-5-1 (1998)). Rich, 347 Ill. App. 3d at 691, 808 N.E.2d at 528. The noise ordinance pro-

hibited excessive noise that annoyed or disturbed “others within the limits of the Village.” Sugar

Grove Village Code § 4-5-1 (1998). The ordinance provided further that “[e]ach day such viola-

tion is committed or permitted to continue shall constitute a separate offense and shall be punish-

-4- able as such under this Chapter” (Sugar Grove Village Code § 4-5-4 (1998)). The charges levied

against the defendant included multiple violations of the noise ordinance based on separate vic-

tims who were annoyed by noise that was created on the same day. Rich, 347 Ill. App. 3d at 692,

808 N.E.2d at 528. For instance, “[t]he defendant was convicted of violating the ordinance on

June 15, 2002, at 8:39 p.m., 9 p.m., 10:10 p.m., and 10:16 p.m.” Id. at 698, 808 N.E.2d at 533.

¶ 18 The Rich court held that the language of the noise ordinance prohibited multiple

violations for intermittent noise created on the same day. Id. As the ordinance provided, “[e]ach

day such a violation is committed or permitted to continue shall constitute a separate offense.”

Sugar Grove Village Code § 4-5-4 (1998). Therefore, the court determined that noise made on

the same day could support only one conviction under the noise ordinance. The Rich court fur-

ther held that the ordinance’s prohibition of excessive noise that disturbs “others within the limits

of the Village” (Suger Grove Village Code § 4-5-1 (1998)) meant that a single violation of the

noise ordinance contemplates multiple victims and that the ordinance therefore does not support

multiple convictions for multiple victims. Rich, 347 Ill. App. 3d at 698-99, 808 N.E.2d at 533-

34.

¶ 19 The Rich court described its holding in terms of the one-act, one-crime doctrine,

holding that “[b]y the terms of the Village’s ordinance, the defendant’s convictions were based

on the same physical act.” Id. at 698, 808 N.E.2d at 533. However, in light of the supreme

court’s subsequent analysis in Almond, we find it more accurate to read Rich as holding that the

ordinance in question prohibited the State from charging multiple violations as it did and as

avoiding the question of whether the multiple convictions were based on “an act” in violation of

the one-act, one-crime doctrine.

¶ 20 In this case, defendant was charged with multiple counts of violation of an order

-5- of protection (720 ILCS 5/12-3.4(a)(1)(i) (West 2014)). The statute provides that a person com-

mits a violation of an order of protection when “[h]e or she knowingly commits an act which was

prohibited by a court *** in violation of” “a valid order of protection.” Id. Unlike in Almond and

Rich, this statute contains no explicit language about whether multiple, simultaneous violations

of a single order of protection may be charged as multiple offenses or, instead, must be charged

as a single offense. Instead, the statute merely contemplates that an offense occurs when a de-

fendant commits “an act” that was in violation of a valid order of protection. Id. We therefore

hold that the language of the statute does not prohibit the State from charging separate offenses

for multiple, simultaneous violations of the same order of protection. As a result, we proceed to

analyze defendant’s claim under one-act, one-crime principles.

¶ 21 C. One-Act, One-Crime

¶ 22 Under the one-act, one-crime doctrine, “a defendant may not be convicted of mul-

tiple offenses based on the same physical act.” Almond, 2015 IL 113817, ¶ 47, 32 N.E.3d 535.

Our supreme court “has noted that the one-act, one-crime rule has never been viewed as a rule of

constitutional dimension.” Artis, 232 Ill. 2d at 164, 902 N.E.2d at 683; but see People v. Gray,

214 Ill. 2d 1, 6, 823 N.E.2d 555, 558 (2005) (holding that double jeopardy principles of the fed-

eral and Illinois constitutions bar, among other things, imposing “more than one punishment for

the same offense”). An “act” is defined as “any overt or outward manifestation that will support

a separate offense.” People v. Crespo, 203 Ill. 2d 335, 341, 788 N.E.2d 1117, 1120 (2001).

¶ 23 The long-established test for determining whether a one-act, one-crime violation

has occurred involves a two-step process. First, the court should determine whether the defend-

ant’s conduct consists of one physical act or several acts. People v. Rodriguez, 169 Ill. 2d 183,

186, 661 N.E.2d 305, 306 (1996). If the defendant has committed only one physical act,

-6- “[m]ultiple convictions are improper.” Id.

¶ 24 If, on the other hand, the defendant has committed multiple acts, the court should

then determine whether any of the charged offenses are lesser included offenses of another

charged offense. If so, then “multiple convictions are improper; if not, then multiple convictions

may be entered.” Id. at 186, 661 N.E.2d at 306-07. If a court determines that multiple convictions

are improper, the court should vacate the less serious offense or offenses. In re Samantha V., 234

Ill. 2d 359, 379, 917 N.E.2d 487, 500 (2009).

¶ 25 “[T]he one-act, one-crime rule only applies to multiple convictions for acts

against a single victim.” People v. Leach, 2011 IL App (1st) 090339, ¶ 30, 952 N.E.2d 647.

“Multiple convictions are proper when there are multiple victims.” Id.; see also People v. Shum,

117 Ill. 2d 317, 363, 512 N.E.2d 1183, 1201 (1987) (“[S]eparate victims require separate convic-

tions and sentences.”).

¶ 26 In this case, even if we construe defendant’s alleged behavior as a single act, no

one-act, one-crime violation exists because the State charged defendant with three counts of vio-

lation an order of protection against three different victims: L.H., E.A., and P.A. All three were

protected persons under the order of protection, and defendant violated the order of protection as

to all three. Because this case involves three separate victims, we need not determine whether

defendant’s activity as charged in this case constituted a single act or multiple acts.

¶ 27 Defendant attempts to distinguish the offense of violation of an order of protec-

tion as an offense against the court, arguing that the offense has no “victims” and therefore can-

not support the exception to the one-act, one-crime rule for multiple victims. We disagree.

¶ 28 In support of his argument that the offense of violation of an order of protection

has no “victim,” defendant cites People v. Hardin, 2012 IL App (1st) 100682, 976 N.E.2d 1083.

-7- In Hardin, the defendant was convicted of two counts of aggravated discharge of a firearm under

section 24-1.2(a)(4) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.2(a)(4) (West

2008)), which made it a crime to discharge a firearm in the direction of a vehicle known to be

occupied by a peace officer. Defendant argued that the one-act, one-crime doctrine prohibited

him from receiving two convictions under that subsection when he discharged a firearm toward a

vehicle only once, despite the fact that the vehicle was occupied by two peace officers. Hardin,

2012 IL App (1st) 100682, ¶¶ 23-25, 976 N.E.2d 1083.

¶ 29 The First District agreed with the defendant and vacated one of his convictions.

Id. ¶ 39. In reaching that decision, the court rejected the State’s argument that defendant was ap-

propriately convicted of two counts because he fired at a vehicle containing two peace officers.

Id. ¶ 27. The court distinguished section 24-1.2(a)(4) of the Code from section 24-1.2(a)(3) of

the Code , which prohibited discharging a firearm “ ‘in the direction of a person he or she knows

to be a peace officer.’ ” (Emphasis in original.) Hardin, 2012 IL App (1st) 100682, ¶¶ 26-27, 976

N.E.2d 1083 (quoting 720 ILCS 5/24-1.2(a)(3) (West 2008)). The court reasoned that the de-

fendant was convicted of an offense “directed against the vehicle,” not against the officers. Id.

¶ 31. As a result, the existence of multiple officers in the vehicle did not mean there were multi-

ple victims that could support multiple convictions.

¶ 30 In this case, the offense of violation of an order of protection proscribed commit-

ting “an act which was prohibited by a court *** in violation of” “a valid order of protection.”

720 ILCS 5/12-3.4(a)(1)(i) (West 2014). Defendant committed an act that violated the order of

protection in three ways, as to three separate victims. The language of the statute contains no

language suggesting that the legislature intended to prohibit multiple convictions based on multi-

ple victims, in contrast to the statutory language at issue in Rich and Hardin. Therefore, because

-8- defendant violated the protective order as to three separate people, his three convictions are not

prohibited by the one-act, one-crime doctrine. As a result, we affirm defendant’s convictions.

¶ 31 III. CONCLUSION

¶ 32 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 33 As part of our judgment, we award the State its $50 statutory assessment against

defendant as costs of this appeal. 55 ILCS 5/4-2002 (West 2016).

¶ 34 Affirmed.

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