People v. Cunningham

Opinion

NOTICE NO. 5-04-0320 Decision filed 05/09/06. The text of this decision may be changed or IN THE corrected prior to the filing of a Petition for Rehearing or the APPELLATE COURT OF ILLINOIS disposition of the same. FIFTH DISTRICT _________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jackson County. ) v. ) No. 01-CF-471 ) TAFFIA CUNNINGHAM, ) Honorable ) Kimberly L. Dahlen, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE McGLYNN delivered the opinion of the court:

Taffia Cunningham, the defendant, was convicted of home invasion, armed violence (based

on residential burglary), and residential burglary and was sentenced to two concurrent 20-year prison

sentences. After making a finding that the defendant's conduct caused great bodily harm, the trial

court also ruled that pursuant to section 3-6-3(a)(2)(iii) of the Unified Code of Corrections (730

ILCS 5/3-6-3(a)(2)(iii) (West 2000)), the defendant must serve 85% of her sentence before she is

eligible for mandatory supervised release. On appeal, the defendant argues that her convictions for

armed violence and residential burglary must be vacated, and she also argues that she should not be

required to serve at least 85% of her sentence, because it was her coconspirator who suffered "great

bodily harm," not the actual victim in this case. For the foregoing reasons, we affirm in part and

vacate in part.

The defendant was a graduate student at Southern Illinois University in Carbondale. On

September 8, 2001, the defendant, her twin brotherBTyree Cunningham, a graduate student friend,

and two other friends got together and decided to go over to a local drug dealer's house and steal

money and drugs. After the drug dealer opened the door without ascertaining who was there, Tyree

1 entered the house wearing dark clothes and a face mask and carrying a shotgun. Tyree yelled at the

drug dealer to get down or be killed, and the drug dealer shot Tyree and killed him. The defendant

and the rest of the would-be thieves fled the scene. Since the drug dealer was hesitant, to say the

least, to call the police, he and his friends removed Tyree's body from the house and dumped it along

a country road. After the body was found, the defendant was charged with first-degree felony

murder, home invasion, armed violence based on residential burglary, and residential burglary,

based upon her accountability for the crimes. A first trial ended with the jury hopelessly

deadlocked, and a mistrial was declared. The second jury trial ended with the jury concluding that

the defendant was guilty on all the charges but felony murder.

Despite the defendant's crime-free past and glowing recommendations from her graduate

school professors, the trial judge imposed concurrent 20-year sentences on the home invasion and

armed violence charges. The trial court also found that since great bodily harm had been inflicted,

the defendant would not be eligible for mandatory supervised release until she had served at least

85% of her sentences. The defendant now appeals, arguing (1) that her conviction for home

invasion is based upon the same acts as her conviction for armed violence, (2) that her conviction for

residential burglary must be vacated since she received no sentence for the crime, and (3) that her

brother was a coconspirator and not a "victim" for purposes of the "truth-in-sentencing" statute.

We first address the second point, which the State concedes. There is no dispute that the

defendant's conviction for residential burglary was a lesser-included offense which merged into her

conviction for armed violence based on the residential burglary. Thus, the trial court was correct in

not imposing a sentence on the charge. See People v. Cooper, 283 Ill. App. 3d 86, 93, 669 N.E.2d

637, 642-43 (1996) (citing People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977)). Without a

sentence, however, the conviction is incomplete and must be vacated. Cooper, 283 Ill. App. 3d at

93, 669 N.E.2d at 643. Without the imposition of a sentenceBor a final judgment on the charge, an

appeal should not be entertained. Cooper, 283 Ill. App. 3d at 93, 669 N.E.2d at 643 (citing People v.

2 Turnipseed, 274 Ill. App. 3d 527, 531, 653 N.E.2d 1258, 1260-61 (1995)). Nevertheless, this case is

properly before us on the defendant's appeal of the home invasion and armed violence convictions.

Thus, we are authorized under Supreme Court Rule 366 (155 Ill. 2d R. 366) to vacate the incomplete

judgment entered on the residential burglary verdict. Cooper, 283 Ill. App. 3d at 93, 669 N.E.2d at

643. Accordingly, we vacate the judgment of conviction for the lesser-included offense of

residential burglary. Cooper, 283 Ill. App. 3d at 93, 669 N.E.2d at 643.

The defendant makes a similar argument in her first point on appeal. The defendant contends

that her conviction and sentence for armed violence also must be vacated because the conviction is

based upon the same act as her conviction for home invasionBthe act of entering the drug dealer's

apartment with a shotgun. After de novo review (People v. Boyd, 307 Ill. App. 3d 991, 998, 719

N.E.2d 306, 311 (1999)), we disagree. 1

1 Although the defendant failed to raise this issue in the trial court, we find that the

issue is one of plain error, which may be raised in the appellate court. See People v. Barraza, 253 Ill. App. 3d 850, 857, 626 N.E.2d 275, 280 (1993).

3 A person commits the crime of home invasion when he or she (1) knowingly enters a

dwelling without authorization to do so, (2) while armed with a dangerous weapon, (3) with the

knowledge that someone is present in the dwelling, and (4) commits or threatens violence against

someone in the dwelling. 720 ILCS 5/12-11(a)(3) 2 (West 2000). A person "commits armed

violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois

[l]aw." 720 ILCS 5/33A-2(a) (West 2000). The defendant's charge of armed violence is based on

the felony of residential burglary. A person commits residential burglary when he or she (1)

knowingly enters a dwelling without authorization to do so, (2) with the intent to commit a felony or

theft. 720 ILCS 5/19-3(a) (West 2000).

The Illinois Supreme Court has long held that when more than one offense arises from a

series of closely related acts and the offenses are not, by definition, lesser-included offenses,

multiple convictions with concurrent sentences may be entered. People v. Hawkins, 125 Ill. App. 3d

520, 521, 466 N.E.2d 299, 300 (1984) (relying on People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d

838, 845 (1977)). In order to make this determination, we must look at the charging instrument and

ascertain whether the greater offense, as pled by the State, sets out the main outline of the lesser

offense. Hawkins, 125 Ill. App. 3d at 521, 466 N.E.2d at 300; People v. McLaurin, 184 Ill. 2d 58,

104, 703 N.E.2d 11, 33 (1998) (stating the Illinois Supreme Court's preference for the "charging-

instrument" approach in identifying lesser-included offenses).

"[T]o be a lesser[-]included offense, the greater offense must include every element in the

lesser offense plus one or more elements; the lesser offense cannot have any element that is

not included in the greater one. In other words, it is impossible to commit the greater offense

2 The information in this case used the term "dangerous weapon" and cited to

subsection 12-11(a)(3) of the Criminal Code of 1961. While subsection 12-11(a)(3) uses the term "firearm," it was a shotgun that was involved in this case.

4 without necessarily committing the lesser also." (Emphasis in original.) Hawkins, 125 Ill.

App. 3d at 522, 466 N.E.2d at 300.

In this case, the State alleged that the defendant committed home invasion by entering the

drug dealer's house without his permission with the knowledge that he was there and, while armed

with a weapon, threatened imminent harm. On the other hand, the State alleged that the defendant

committed armed violence by entering the drug dealer's house without his permission "with the

intent to commit a theft therein."

Although the act of entering the house is the same for each charge, the armed violence charge

based on the felony of residential burglary required an intent to commit a theft, which is not a

requirement of the greater offense of home invasion. Clearly, the defendant could have committed

home invasion without committing armed violence in this case by entering the drug dealer's house

without the intent to commit a theft. Therefore, every element of armed violence (based on

residential burglary) is not included in the offense of home invasion in this case. Thus, armed

violence is not a lesser-included offense of home invasion in this case. Accordingly, the facts of this

case support separate convictions for home invasion and armed violence.

In her last point on appeal, the defendant argues that the trial court erred in finding that great

bodily harm had been inflicted upon a victim during the commission of home invasion. After de

novo review (People v. Whitney, 188 Ill. 2d 91, 98, 720 N.E.2d 225, 229 (1999)), we agree.

If a defendant is convicted of home invasion and the trial court makes a finding, as it did in

this case, that the conduct leading to the conviction resulted in great bodily harm to a "victim," the

defendant shall receive no more than 4.5 days of good-conduct credit for each month of his or her

sentence of imprisonment. 730 ILCS 5/3-6-3(a)(2)(iii) (West 2000). In this case, the drug dealer

was alleged in the information to be the "victim" of the home invasion. There is no dispute,

however, that the drug dealer was uninjured and that Tyree was the only person who suffered bodily

injury during the commission of the crimes at issue. Therefore, the trial court must have considered

5 Tyree the "victim" for sentencing purposes. Whether Tyree qualifies as a "victim" lies in the

meaning of the statute.

In article 1 of chapter III of the Unified Code of Corrections, the term "victim" has the

meaning ascribed to it in the Bill of Rights for Victims and Witnesses of Violent Crime Act, now

entitled the Rights of Crime Victims and Witnesses Act (the Act) (725 ILCS 120/3(a) (West 2000)).

730 ILCS 5/3-1-2(n) (West 2000). Under the Act at the time of the offenses herein, a "crime

victim" was defined as follows:

"(1) a person physically injured in this State as a result of a violent crime perpetrated

or attempted against that person or (2) a person who suffers injury to or loss of property as a

result of a violent crime perpetrated or attempted against that person or (3) a single

representative who may be the spouse, parent, child[,] or sibling of a person killed as a result

of a violent crime perpetrated against the person killed or the spouse, parent, child[,] or

sibling of any person granted rights under this Act who is physically or mentally incapable of

exercising such rights, except where the spouse, parent, child[,] or sibling is also the

defendant or prisoner or (4) any person against whom a violent crime has been committed or

(5) any person who has suffered personal injury as a result of a violation of Section 11-501

of the Illinois Vehicle Code, or of a similar provision of a local ordinance, or of Section 9-3

of the Criminal Code of 1961, as amended[.]" 725 ILCS 120/3(a) (West 2000).

After applying this definition to TyreeBthe only physically injured person in this case, we

find that Tyree does not fall under any of the categories listed above. Although it is conceivable that

Tyree could fall under subsection (4), as the State suggests, we must resolve any ambiguity in this

regard in favor of the defendant pursuant to our policy of lenity. See Whitney, 188 Ill. 2d at 98, 720

N.E.2d at 228-29; People v. Alejos, 97 Ill. 2d 502, 512, 455 N.E.2d 48, 52 (1983). Certainly, the

occupant of the house had a constitutional right to defend himself, even with the use of deadly force,

when confronted with an armed invader. That act, in and of itself, cannot be considered a crime and

6 the armed invader a victim because he was slower on the draw. Therefore, Tyree cannot be found to

be a "victim" for sentencing purposes. Because Tyree was the only person who suffered any injury

in this case (and the "victim" listed in the indictment was uninjured), we vacate the portion of the

trial court's sentencing order that requires the defendant to serve at least 85% of her sentence before

attaining eligibility for mandatory supervised release.

For the foregoing reasons, we affirm the trial court's sentencing order with regard to armed

violence and home invasion. We vacate the judgment of conviction on the lesser-included offense of

residential burglary. Since we also find that no "victim" suffered great bodily injury, we also vacate

the portion of the trial court's sentencing order which requires the defendant to serve at least 85% of

her sentence before attaining eligibility for mandatory supervised release.

Affirmed in part and vacated in part.

GOLDENHERSH and HOPKINS, JJ., concur.

7 NO. 5-04-0320

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jackson County. ) v. ) No. 01-CF-471 ) TAFFIA CUNNINGHAM, ) Honorable ) Kimberly L. Dahlen, Defendant-Appellant. ) Judge, presiding. ___________________________________________________________________________________

Opinion Filed: May 9, 2006 ___________________________________________________________________________________

Justices: Honorable Stephen P. McGlynn, J.

Honorable Richard P. Goldenhersh, J., and Honorable Terrence J. Hopkins, J., Concur ___________________________________________________________________________________

Attorneys Daniel M. Kirwan, Deputy Defender, E. Joyce Randolph, Assistant Defender, for Office of the State Appellate Defender, Fifth Judicial District, 117 North Tenth Appellant Street, Suite 300, Mt. Vernon, IL 62864 ___________________________________________________________________________________

Attorneys Hon. Michael Wepsiec, State's Attorney, Jackson County Courthouse, 1001 for Walnut Street, Murphysboro, IL 62966; Norbert J. Goetten, Director, Stephen Appellee E. Norris, Deputy Director, Sharon Shanahan, Contract Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois Highway 15, Suite 2, P. O. Box 2249, Mt. Vernon, IL 62864 ___________________________________________________________________________________