People v. Carter

2024 IL App (2d) 230234

Opinion

2024 IL App (2d) 230234 No. 2-23-0234 Opinion filed November 22, 2024 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 19-CF-1167 ) JASON CARTER, ) Honorable ) Alice C. Tracy, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Birkett and Kennedy concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial in the circuit court of Kane County, defendant, Jason Carter, was

convicted of two counts of home invasion (720 ILCS 5/19-6(a)(6) (West 2018)) and a single count

of criminal sexual assault (id. § 11-1.20(a)(2)). Defendant argues on appeal that (1) under the one-

act, one-crime rule, the criminal sexual assault conviction and one of the home invasion

convictions must be vacated; (2) the trial court erred in ordering him to serve 85% of his sentence;

and, (3) because his criminal sexual assault conviction must be vacated, the trial court erred in

ordering him to register as a sex offender. We vacate one of defendant’s home invasion convictions

and his criminal sexual assault conviction. We also vacate that portion of the sentencing order

requiring him to serve 85% of his sentence. However, because defendant was convicted of home 2024 IL App (2d) 230234

invasion predicated on a sex offense, we affirm the judgment requiring him to register as a sex

offender.

¶2 I. BACKGROUND

¶3 As pertinent here, defendant was charged by indictment with two counts of home invasion

(counts I and II) and one count of criminal sexual assault (count III). Count I alleged that defendant

“knowingly and without authority entered the dwelling place of another, *** when he knew or had

reason to know that another person was present *** and while within said dwelling, committed

the offense of criminal sexual assault against S.M.” Count II alleged that defendant “knowingly

and without authority entered the dwelling place of another, *** and remained in said dwelling

until he knew or had reason to know that one or more persons was present, and while inside said

dwelling committed the offense of criminal sexual assault against S.M.” Count III alleged that

defendant placed his penis in S.M.’s mouth, knowing that she was unable to understand the nature

of the act or give consent.

¶4 At trial, S.M. testified that, on the evening of June 15, 2019, she and her roommates went

to some bars in St. Charles for a bachelorette party. S.M. drank alcohol during the outing. At some

point, she met up with her boyfriend, Vance Conroyd, and they went to his home in St. Charles.

S.M. was intoxicated at that point and fell asleep on a couch. She testified that she woke to find

defendant’s penis in her mouth. S.M. was acquainted with defendant, who was Conroyd’s next-

door neighbor. After S.M. woke up, defendant removed his penis from her mouth, zipped up his

pants, and left. Conroyd testified that, on the date in question, he lived in a unit in a duplex.

Defendant lived in the other unit.

¶5 Defendant testified that, at about 9 p.m. on June 15, 2019, he met with some friends to

celebrate his birthday. They went to a couple of bars. After no more than about two hours,

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defendant went home. According to defendant, there was an “open door” policy at the duplex

where he and Conroyd lived. Defendant explained: “there’s a screen door and then a door, so if

the door is open, you can just come in, if you saw somebody.” It was common for defendant and

Conroyd to enter each other’s property without knocking or ringing the doorbell. When defendant

arrived at the duplex after his birthday celebration, he entered Conroyd’s unit to “see what they

were up to.” Once inside, he saw a person lying on the couch. The person was facing the back of

the couch. He believed that the person was Maria Batka, with whom defendant was involved in a

physical relationship. Defendant touched the person on the shoulder, and she started to fondle his

crotch. He then exposed his penis, and she immediately turned toward him and put it in her mouth.

They then “both looked at each other,” and defendant realized the woman was not Batka.

¶6 After the jury returned guilty verdicts on all three counts of the indictment, the matter was

continued for posttrial motions and sentencing. Defendant filed a motion for a new trial, in which

he argued that the State failed to prove his guilt beyond a reasonable doubt and that the trial court

erred in barring him from testifying about his alcohol consumption before the incident. The trial

court denied defendant’s motion and sentenced defendant to a seven-year prison term, noting that,

upon release, he would have to register as a sex offender for life. The court indicated that defendant

would receive day-for-day credit toward his sentence. In addition, the court stated that “[t]he

criminal sexual assault and one home invasion count will merge into the first home invasion

count.” However, the written sentencing order indicated that defendant was to serve 85% of his

sentence and that a separate conviction had been entered on the criminal sexual assault count and

on each home invasion count. Defendant filed a timely notice of appeal.

¶7 II. ANALYSIS

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¶8 Defendant raises three contentions on appeal, none of which, he admits, was brought in the

trial court. We first consider whether defendant’s criminal sexual assault conviction and one of his

two home invasion convictions must be vacated. Although, during sentencing, the trial court

indicated that counts II (home invasion) and III (criminal sexual assault) merged into count I (home

invasion), the court ultimately entered separate judgments of conviction on all three counts.

¶9 Defendant acknowledges that he forfeited the issue by failing to raise it in his posttrial

motion. See People v. Enoch, 122 Ill. 2d 176, 185-86 (1988). However, defendant asks us to review

the issue under the plain-error rule, which allows appellate review of an unpreserved error when

“(1) a clear or obvious error occurred and the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill.

2d 551, 565 (2007).

“[O]ne-act, one-crime violations fall within the second prong of the plain error doctrine as an

obvious error so serious that it challenges the integrity of the judicial process.” People v. Coats,

2018 IL 121926, ¶ 10. The one-act, one-crime rule bars surplus convictions and sentences by

prohibiting convictions of more than one offense carved from the same physical act. People v.

King, 66 Ill. 2d 551, 566 (1977). In cases involving multiple acts, convictions of more than one

offense are permissible unless some offenses are, by definition, lesser included offenses. Id. As

defendant observes, under these principles, a single unauthorized entry into a dwelling will support

only one home invasion conviction, regardless of the number of victims involved. See, e.g., People

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v. Carr-McKnight, 2020 IL App (1st) 163245, ¶ 113. Here, there was only one unauthorized entry

into Conroyd’s dwelling, so one of defendant’s home invasion convictions must be vacated.

¶ 10 The question remains: which home invasion conviction should be vacated? The following

principles apply:

“When two convictions violate the one-act, one-crime doctrine, the sentence should

be imposed on the more serious offense, and the less serious offense should be vacated.

[Citation.] Where the punishments are the same for both offenses, *** the sentence should

be imposed on the offense that ‘has the more culpable mental state.’ [Citation.]” Id. ¶ 114.

Here, the two home invasion counts were equally serious and were based on the same mental state.

In such instances, a reviewing court may remand the matter to the trial court to determine which

conviction should be vacated. People v. Millsap, 2012 IL App (4th) 110668, ¶ 20. In this case,

however, because the trial court indicated during sentencing that count II merged into count I, we

can vacate the conviction on count II.

¶ 11 We also agree with defendant that, because the home invasion charge was predicated on

criminal sexual assault, the latter is a lesser included offense of the former. So, the criminal sexual

assault conviction (count III) must also be vacated. See People v. Reveles-Cordova, 2020 IL

124797, ¶ 21. The State acknowledges that we may address the issue as plain error and that the

trial court should have merged his convictions into a single home invasion conviction. We accept

the State’s concession.

¶ 12 We next consider whether the trial court erred in ordering defendant to serve 85% of his

sentence for home invasion (count I). Subject to numerous exceptions, an offender serving a prison

sentence is entitled to one day of sentence credit for each day served. 730 ILCS 5/3-6-3(a)(2.1)

(West 2018). One exception provides that an offender serving a sentence for home invasion is

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eligible for no more than 4.5 days of sentence credit per month served if the trial court “has made

and entered a finding *** that the conduct leading to conviction for the enumerated offense

resulted in great bodily harm to a victim.” Id. § 3-6-3(a)(2)(iii). Here, the trial court made no such

finding. Although defendant did not raise the error in a motion to reconsider his sentence, he

correctly observes that the issue is reviewable under the plain-error rule. See People v. Burns, 2020

IL App (3d) 170103, ¶ 76. Here, too, the State concedes that the trial court erred and that the error

is reviewable. Accordingly, that portion of the trial court’s order requiring defendant to serve 85%

of his sentence is vacated.

¶ 13 The remaining issue is whether the trial court erred in ordering defendant to register as a

sex offender. Defendant acknowledges that trial counsel did not challenge this aspect of the trial

court’s judgment and that the issue is arguably forfeited. Defendant does not seek review under

the plain-error rule. Instead, he argues that he is entitled to relief because, by failing to preserve

the issue for review, trial counsel violated defendant’s right to the effective assistance of counsel.

See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

¶ 14 Strickland requires a showing that counsel’s performance “fell below an objective standard

of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. We conclude that a challenge

to the order that defendant register as a sex offender would have been meritless. Accordingly, trial

counsel’s failure to raise such a challenge engendered no prejudice within the meaning of

Strickland.

¶ 15 Section 3 of the Sex Offender Registration Act (Act) (730 ILCS 150/3 (West 2018))

requires a “sex offender” to register with and provide certain information to local law enforcement

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authorities. Under section 2 of the Act, (id. § 2(A)(1)(a)), a person is a sex offender when they

have been convicted of a “sex offense.”

¶ 16 Criminal sexual assault is among the offenses defined as a “sex offense” in section 2(B) of

the Act (id. § 2(B)(1)). Home invasion is not. See id. Although defendant was found guilty of

criminal sexual assault, that conviction merged with his home invasion conviction, as we have

determined. Thus, defendant argues that he was not convicted of a “sex offense” that would require

registration as a sex offender. We disagree.

¶ 17 Defendant is correct that, under the plain language of sections 2(A) and 2(B), home

invasion is not a listed “sex offense” such that registration is required for all home invasion

convictions. However, neither the statutes nor our analysis ends there. As with felony murder and

armed violence, home invasion involves the commission of specific predicate offenses (720 ILCS

5/19-6(a)(1)-(6) (West 2020) (formerly section 12-11(a)(1)-(6) (see 720 ILCS 5/12-11(a)(1)-(6)

(West 2010)))). Each of the alternative acts or predicates are “construed as separately proscribed

offenses.” Reveles-Cordova, 2020 IL 124797, ¶ 20. Sex offenses, such as criminal sexual assault,

are included among those predicates, and the only reason defendant does not stand convicted of

that offense separately is because he committed it in another person’s home.

¶ 18 As others have observed, it is “theoretically and practically impossible” (People v. Skaggs,

2019 IL App (4th) 160335, ¶ 39) to somehow commit home invasion predicated on a sex offense

under section 19-6(a)(6), without committing the underlying sex offense on which the home

invasion charge was based. See Reveles-Cordova, 2020 IL 124797, ¶ 21; see also Whalen v. United

States, 445 U.S. 684, 691-92, 694 n.8 (1980) (“[w]e have simply concluded that, [under the

relevant statute], Congress intended rape to be considered a lesser offense included within the

offense of a killing in the course of rape”). Moreover, the Act specifically provides that a qualifying

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conviction of a registerable “sex offense” includes a violation of any former state law, or a

violation of any law, including that of a foreign country, that is “substantially equivalent to any

offense listed” in the Act. See 730 ILCS 150/2(B)(2), (C) (West 2018). The Act provides that

“[c]onvictions that result from or are connected with the same act, or result from offenses

committed at the same time, shall be counted for the purpose of this Article as one conviction.” Id.

§ 2(A).

¶ 19 Contrary to defendant’s argument, we find there is no legislative “oversight” for us to

correct. We determine that home invasion based on criminal sexual assault is unquestionably a

registerable sex offense under the Act. To the extent defendant suggests this result is somehow

“absurd” or a “double enhancement,” we find neither description is apt. Sex offender registration

is, constitutionally, a world apart from enhanced sentencing penalties. Registration “is merely a

collateral consequence of the defendant’s conviction” (People v. Presley, 2012 IL App (2d)

100617, ¶ 28), rather than part of the punishment of his sentence. See People v. Cornelius, 213 Ill.

2d 178, 209 (2004) (noting the nonpunitive purposes of the Act and related notification laws).

¶ 20 The primary purpose of registration and notification is, of course, the protection of the

public. Id.; see also People v. Pearse, 2017 IL 121072, ¶ 41. We note that there is a national

consensus on sex offender registration and public notification. See Reynolds v. United States, 565

U.S. 432, 434 (2012). Consequently, under federal law, the term “sex offense” means inter alia all

offenses “involving a sexual act or sexual contact with another.” 34 U.S.C. § 20911(5)(A)(i)

(2018); see Gundy v. United States, 588 U.S. 128, 132-34 (2019) (plurality opinion) (noting

“[s]uch an individual must register *** in every State where he resides, works, or studies”).

¶ 21 We fail to see how a strained reading of our state’s Act—one that would require registration

when a person commits a sex offense, say, on a public way, but not for an offender who broke into

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a person’s home and committed the very same offense—would aid the General Assembly in its

efforts to deter crime and promote public safety in Illinois. We therefore hold that defendant is

indeed a sex offender subject to registration under the Act.

¶ 22 Although not discussed by the parties, we observe that the court’s decision in People v.

Profit, 2021 IL App (1st) 170744, provides a helpful backdrop in this case. There, the court

analyzed “whether a finding of guilt on an unsentenced offense” required registration under the

related Murderer and Violent Offender Against Youth Registration Act (730 ILCS 154/1 et seq.

(West 2016)). (Emphasis added.) Profit, 2021 IL App (1st) 170744, ¶ 39. There, at sentencing, the

State conceded that a registration offense should merge into a greater nonregistration offense and

the court held that registration could not be premised on the conviction of the merged offense.

Profit, 2021 IL App (1st) 170744, ¶ 44. Here, however, our conclusion is that defendant must

register under SORA based on the offense he was convicted of—home invasion based on the

commission of a sex offense, to wit, criminal sexual assault. Accordingly, Profit is distinguishable.

¶ 23 III. CONCLUSION

¶ 24 For the reasons stated, we vacate defendant’s criminal sexual assault conviction (count III)

and one of his home invasion convictions (count II). We also vacate that portion of the sentencing

order requiring defendant to serve 85% of his sentence. In all other respects, we affirm the

judgment of the circuit court of Kane County.

¶ 25 Affirmed as modified.

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People v. Carter, 2024 IL App (2d) 230234

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 19-CF- 1167; the Hon. Alice C. Tracy, Judge, presiding.

Attorneys James E. Chadd, Christopher McCoy, and Sade V. Edwards, of for State Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, and David S. Friedland, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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