People v. Perkins

2025 IL App (2d) 240152-U

Opinion

2025 IL App (2d) 240152-U No. 2-24-0152 Order filed December 26, 2025

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kendall County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-187 ) DANIEL PERKINS, ) Honorable ) Robert P. Pilmer, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices McLaren and Hutchinson concurred in the judgment.

ORDER

¶1 Held: Defendant’s multiple predicate felonies only supported one conviction for armed violence.

¶2 Following a bench trial in the circuit court of Kendall County, defendant, Daniel Perkins,

was found guilty of two counts of armed violence (720 ILCS 5/33A-2(a) (West 2014)) and

sentenced to 20 years in prison. Defendant appeals, arguing (1) that the armed violence statute is

unconstitutional; (2) his multiple predicate felonies only support one conviction for armed robbery;

and (3) his multiple armed violence convictions violate the one-act, one-crime rule. We vacate

defendant’s convictions of two counts of armed violence and remand for additional proceedings. 2025 IL App (2d) 240152-U

¶3 I. BACKGROUND

¶4 On July 29, 2015, the State charged defendant in a multiple-count indictment with

aggravated kidnapping with a firearm (720 ILCS 5/10-2(a)(6) (West 2014)) (Count 1), two counts

of aggravated criminal sexual assault with a firearm (id. § 11-1.30(a)(8)) (Counts 2-3), attempted

aggravated criminal sexual assault with a firearm (id. §§ 8-4(a), 11-1.30(a)(8)) (Count 4), armed

violence related to the unlawful possession of cannabis (id. § 33A-2(a)) (Count 5), armed violence

associated with the possession of cocaine (id.) (Count 6) and armed violence related to the

conversion of a vehicle (id.) (Count 7). On May 27, 2016, defendant moved to sever the drug-

related charges of armed violence from the other counts, arguing that they would be overly

prejudicial if tried alongside his other charges. On October 7, 2016, the trial court granted the

motion to sever Counts 5 and 6.

¶5 On February 9, 2017, following a bench trial, the trial court found defendant guilty of

Counts 1-4 and 7. The trial court subsequently sentenced defendant on four of the five counts, as

the court determined that one of the two counts of aggravated criminal sexual assault with a firearm

merged into the other. Defendant was sentenced to an aggregate of 52 years in prison. Specifically,

defendant was sentenced to 25 years in prison for aggravated kidnapping with a firearm, to be

served consecutively to a 27-year sentence for aggravated criminal sexual assault with a firearm.

Defendant received a 7-year sentence for attempted aggravated criminal sexual assault with a

firearm and a 17-year sentence for armed violence. Both of those sentences were to be served

consecutively to the sentence imposed for aggravated criminal sexual assault with a firearm but

concurrently with the sentence for aggravated kidnapping with a firearm.

¶6 On appeal, this court affirmed. See People v. Perkins, 2020 IL App (2d) 170963 (Perkins

I).

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¶7 On October 31, 2023, the trial court conducted a bench trial on Counts 5 and 6. Defendant

admitted that he had a gun while at his residence before leaving with the victim. The State

introduced evidence that 335 grams of marijuana and .03 grams of cocaine were found in

defendant’s residence. Based on that evidence, the trial court found defendant guilty of Counts 5

and 6, explaining that all the State has to do is prove the elements of the underlying felonies and

that defendant was armed. The trial court thereafter imposed a sentence of 20 years’ imprisonment

for each armed violence conviction to be served concurrently with the sentences for Counts 1, 4,

and 7 that had already been imposed.

¶8 Defendant thereafter filed a timely notice of appeal.

¶9 II. ANALYSIS

¶ 10 On appeal, defendant first argues that the armed violence statute is unconstitutional. We

need not address this issue, however, because defendant’s second issue is dispositive. See In re

Barbara H., 183 Ill. 2d 482, 492, (1998) (“If the case may be decided on other grounds, the

constitutionality of a statute should not be addressed”). Specifically, we only consider defendant’s

argument that his instant convictions for armed violence must be vacated because the armed

violence statute does not authorize multiple convictions for the continuous possession of a single

firearm during a continuous series of events regardless of how many underlying felonies are

committed. Defendant raises this issue in both the context of a “unit of prosecution” analysis and

being a violation of the one-act, one-crime rule of People v. King, 66 Ill. 2d 551 (1977).

¶ 11 At the outset, we note that the State argues that defendant has forfeited this issue by not

timely raising it before the trial court. See People v. Denson, 2014 IL 116321, ¶ 18. Forfeiture

aside, however, we may still consider an unpreserved error under the plain error doctrine where

the evidence was close or the error was so serious as to undermine the integrity of the judicial

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process. People v. Herron, 215 Ill. 2d 167, 187 (2005). A unit of prosecution error is reviewable

under the second prong because “the potential for a surplus conviction and sentence affects the

integrity of the judicial process.” People v. Harvey, 211 Ill. 2d 368, 389 (2004). As such, we will

consider defendant’s argument under the plain error doctrine.

¶ 12 A threshold question to reaching the one-act, one-crime rule is to determine the unit of

prosecution of the offense at issue. People v. Almond, 2015 IL 113817, ¶ 33, (citing People v.

Carter, 213 Ill. 2d 295, 301 (2004)). The unit of prosecution of an offense refers to what act or

course of conduct the legislature has prohibited for purposes of a single conviction and sentence.

People v. Hartfield, 2022 IL 126729, ¶ 67. Here, that requires us to determine whether the offense

of armed violence, by its own terms, commands a single conviction per predicate felony. Framed

differently, the question is whether defendant in this case committed the offense of armed violence

one or three times with his possession of a gun. Only if we conclude that defendant has committed

the offense three times will we move on to consideration of the one-act, one-crime rule. See id.

¶ 13 Determining the unit of prosecution is a question of statutory interpretation. Carter, 213

Ill. 2d at 300-01. The fundamental rule of statutory interpretation is to ascertain and give effect to

the legislature’s intent, and the best indicator of that intent is the statutory language, given its plain

and ordinary meaning. Cooke v. Illinois State Board of Elections, 2021 IL 125386, ¶ 52. The

statute must be viewed as a whole, and as such, this court construes words and phrases not in

isolation but relative to other pertinent statutory provisions. State ex rel. Leibowitz v. Family Vision

Care, LLC, 2020 IL 124754, ¶ 35. We likewise keep in mind the subject addressed by the statute

and the legislature’s apparent intent in enacting it. People ex rel. Madigan v. Wildermuth, 2017

IL 120763, ¶ 17.

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¶ 14 In construing a criminal statute, courts employ the doctrine of lenity to resolve any

ambiguity in criminal statutes in the defendant’s favor. Carter, 213 Ill. 2d at 301 (“Criminal or

penal statutes must be strictly construed in the defendant’s favor, ‘and nothing should be taken by

intendment or implication beyond the obvious or literal meaning of the statute.’ ” (quoting People

v. Davis, 199 Ill. 2d 130, 135 (2002))). Our courts will apply the doctrine of lenity where the unit

of prosecution is unclear. Hartfield, 2022 IL 126729, ¶ 69.

¶ 15 In People v. White, 2015 IL App (1st) 131111, ¶¶ 44-48, the Illinois Appellate Court, First

District, addressed the precise issue now before us. There, the defendant was found guilty of two

counts of armed violence based on simultaneous possession of two different illegal drugs while

armed with a gun. The White court considered whether the armed violence statute’s language,

requiring that the defendant commit “any felony,” permits multiple convictions for the

simultaneous commission of two different felonies. Id. ¶ 45. The White court noted that in Carter,

the Illinois Supreme Court had observed that the term “any” can be singular or plural. Id. ¶ 45

(citing Carter, 213 Ill. 2d at 301-02). As a result, the supreme court determined that the statute for

unlawful use of weapons by a felon (UUWF), which stated that it was unlawful for a felon to

possess “any firearm or any firearm ammunition” (720 ILCS 5/24–1.1 (West 1996)), was

ambiguous because it did not adequately define the allowable unit of prosecution. Id. (citing

Carter, 213 Ill. 2d at 302). Accordingly, the supreme court held that the simultaneous possession

of multiple firearms or ammunition constituted only one offense. Id. (citing Carter, 213 Ill. 2d at

306). The White court further observed that, following Carter, the legislature amended the UUWF

statute to state that “[t]he possession of each firearm or firearm ammunition in violation of this

Section constitutes a single and separate violation.” Id. ¶ 47 (quoting 720 ILCS 5/24-1.1(e) (West

2008)).

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¶ 16 Based on Carter, the White court then expounded:

“Similar to the pre-amendment UUWF statute, section 33A-2 provides that armed

violence occurs where an armed person commits “any” felony. 720 ILCS 5/33A-2 (West

2012). It is unclear whether the legislature intended for any felony to be singular or plural.

Accordingly, the statute is ambiguous as to whether the commission of each underlying

felony supports a separate armed violence conviction. We further note that the armed

violence statute contains no provision similar to the post-Carter UUWF amendment

specifying that the commission of each felony constitutes a single and separate armed

violence offense. See Id. Accordingly, we must construe this ambiguity in defendant’s

favor and hold that the statute does not authorize multiple armed violence convictions for

multiple, simultaneous, underlying felonies.” Id. ¶ 48.

¶ 17 Here, defendant was convicted of three counts of armed violence based on his commission

of three simultaneous predicate felonies—possession of cannabis, possession of cocaine, and

conversion of vehicle—while armed with a gun. As explained in White, only one of defendant’s

convictions for armed violence can stand. Further, as defendant’s conviction for armed violence

based on a conversion of a vehicle has already been affirmed in Perkins I, we therefore vacate both

of his convictions (Counts 5 and 6) for armed violence based on drug possession.

¶ 18 In so ruling, we reject the State’s argument that we need not follow White because (1) it is

contrary to the supreme court’s decision in People v. Coats, 2018 IL 121926; and (2) it is contrary

to the clear intent of the armed violence statute to discourage firearm use during the commission

of felony offenses. Coats is not applicable to the case at bar. There, the defendant was convicted

of several offenses, including being an armed habitual criminal and armed violence. Coats, 2018

IL 121926, ¶ 1. On appeal, the defendant argued that his convictions for being an armed habitual

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criminal and armed violence violated the one-act, one-crime rule because they were both

predicated on the same physical act of possessing the handgun. Id. ¶ 14. Notably, the defendant

did not raise a unit of prosecution argument. The supreme court observed this as well, stating “In

this case, multiple counts of the same offense are not at issue. Thus, those types of legislative

considerations [involved in a unit of prosecution argument] are not applicable here.” Id. ¶ 24. As

such, the supreme court’s determination that the defendant’s convictions under two different

statutes did not violate the one-act, one-crime rule is of little assistance to us here.

¶ 19 Secondly, we do not believe that White contravenes the legislature’s clear intent of the

armed violence statute—that being to discourage gun violence during the commission of a felony.

See 720 ILCS 5/33A-1(b)(1) (West 2016). As the White court noted, after the supreme court

determined in Carter that the term “any” was ambiguous as used in the UUWF and therefore the

defendant could only be convicted of one offense under that Act, the legislature amended the

UUWF so as to allow multiple convictions under that statute. However, the legislature did not act

in a similar fashion after the White court’s decision—which was 10 years ago—and amend the

armed violence statute. As such, we presume that the legislature agrees with how the armed

violence statute has been judicially interpreted. See Board of Education of City of Chicago v.

Moore, 2021 IL 125785, ¶ 30 (where the legislature chooses not to amend terms of a statute after

judicial construction, it will be presumed that it has acquiesced in the court’s statement of

legislative intent).

¶ 20 Finally, as we are vacating defendant’s armed violence convictions predicated on

possession of cannabis and cocaine (Counts 5 and 6), we remand for the trial court to impose a

sentence for the possession of those two substances. See White, 2015 IL App (1st) 131111, ¶ 49.

¶ 21 III. CONCLUSION

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¶ 22 For the reasons stated, we vacate the judgment of the circuit court of Kendall County and

remand for proceedings consistent with this decision.

¶ 23 Vacated and remanded for additional proceedings.

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