People v. Sumler

2015 IL App (1st) 123381

• Court: Appellate Court of Illinois
• Decided: February 11, 2015
• Docket: 1-12-3381
• Status: Unpublished

Opinion

2015 IL App (1st) 123381 No. 1-12-3381 Opinion filed February 11, 2015

FOURTH Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 10CR16938 ) HUBERT SUMLER, ) The Honorable ) Daniel J. Porter, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, defendant Hubert Sumler was found guilty of aggravated kidnapping,

violation of an order of protection, and domestic battery. Defendant was sentenced to 28

years' imprisonment for aggravated kidnapping, 3 years' imprisonment for violation of an

order of protection, and 3 years' imprisonment for domestic battery, all sentences to run

concurrently. On appeal, defendant contends: (1) his aggravated kidnapping conviction

should be reduced to kidnapping where the State failed to introduce evidence during trial of

his prior domestic battery conviction that enhanced his domestic battery to a felony; (2) the 1-12-3381

State failed to prove him guilty of aggravated kidnapping where the asportation of the victim

was so brief that it was merely a part of the commission of the separate offense of domestic

battery; (3) this court should order a new sentencing hearing; and (4) his domestic battery

conviction should be vacated as a lesser included offense of aggravated kidnapping, which

was predicated on the same domestic battery. The State properly concedes that his domestic

battery conviction should be vacated as a lesser included offense of aggravated kidnapping.

For the following reasons, we affirm defendant's convictions for aggravated kidnapping and

violation of an order of protection, and vacate his conviction for domestic battery; in

addition, we otherwise affirm his sentence, with the modification that his second 3-year term

for his conviction for domestic battery, accordingly, vacated.

¶2 I. BACKGROUND

¶3 Defendant was charged with aggravated kidnapping, vehicular hijacking, vehicular

invasion, kidnapping, eight counts of violation of an order of protection, and eight counts of

domestic battery for an incident that occurred on March 30, 2010. The following evidence

was adduced at trial.

¶4 The victim, S.M., testified that she and defendant had three children together. At the

time of trial, the children were ages 18, 14, and 4. She had known defendant for 19 years,

but they never married. On the day of the incident at issue here, March 30, 2010, S.M. had a

no-contact order of protection in effect against defendant, requiring him to stay away from

her house and her job. Defendant was present when the order of protection was issued.

¶5 At approximately 5 a.m. on March 30, 2010, S.M. returned home alone a vehicle. She

parked on the street directly in front of her house on the 300 block of West 43rd Street. She

opened the door slightly as she was preparing to exit the vehicle. Defendant suddenly

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appeared at the driver's side door and began punching her in the face and head. S.M.

attempted to flee by climbing into the passenger seat with the hope of escaping out the

passenger door. She was bleeding from her face. Defendant climbed into the driver's seat as

he was hitting her and drove away before S.M. was able to exit the vehicle.

¶6 Defendant was driving rapidly. He drove down 43rd Street, and then took Wallace

Avenue to 39th Street and Pershing Avenue. He turned toward the expressway. Once they

were about 1 1/2 blocks from the expressway, S.M. began kicking the dashboard and

screaming, "hoping somebody would see what was going on." S.M. testified she "was

panicking" because she "thought he might have got on the expressway. I didn't want to get

on the expressway." S.M. testified she did not agree to go anywhere with defendant, and she

did not know where he was taking her.

¶7 As they reached 39th Street and Princeton Avenue, with S.M. kicking and screaming,

defendant unlocked the car doors, opened the passenger door, and pushed S.M. out of the

vehicle at a stop sign. S.M. was able to grab her purse as she fell from the vehicle.

Defendant drove away.

¶8 S.M. walked to a nearby gas station and called the police. An ambulance arrived and

transferred her to Mercy Hospital, where she was treated and released several hours later.

S.M.'s friend took photographs of S.M.'s injuries.

¶9 S.M. testified that the next day, one of defendant's friends, Jakeima Brooks, came to

her house. Brooks handed S.M. the keys to S.M.'s vehicle and told her defendant had asked

him to give her the keys.

¶ 10 S.M. also testified to other incidents of physical abuse by defendant. The court

admonished the jury that this evidence was "being received on the issue of the defendant's

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state of mind, motive, and intent and it may be considered by you only for that limited

purpose." S.M. testified that, on October 18, 2008, S.M. and defendant got into a "heated

argument" and defendant punched S.M. in the face, head, and body. Their two eldest sons

broke up the fight, defendant left the house, and S.M. contacted the police. The court issued

a no-contact order of protection against defendant on October 31, 2008, as a result of that

incident. Defendant was present in court when that order was entered. It was in effect on

March 30, 2010, the date of the present incident.

¶ 11 On October 31, 2009, S.M. was walking with defendant near her home at

approximately 3:45 a.m. when they had another argument. Defendant punched S.M. in the

face. Defendant's friend broke up the fight. S.M. called the police.

¶ 12 On March 10, 2010, S.M. exited a gas station on 42nd Street and Wentworth Avenue

and saw defendant in a van with another man and two women. As S.M. approached her

vehicle, defendant called her a "bitch" and punched her in the face and head. S.M. sustained

a black eye. Defendant ran when S.M.'s eye swelled and started to bleed.

¶ 13 Just days after the incident at issue here, on April 1, 2010, S.M. fell to the ground

while at a party. S.M. looked up from the floor and saw defendant's foot coming toward her.

Defendant kicked her in the back of the head. He then bent over and punched S.M. with both

fists and stomped on her back. Defendant ran away before the police arrived. S.M. suffered

an abrasion on her forehead, two black eyes, and a broken nose.

¶ 14 At approximately midnight on June 29, 2010, S.M. was walking toward her house.

Defendant appeared out of the darkness and hit S.M. She fell to the ground from the blow.

Defendant then hit her in the back of the head and stomped his foot on her back. S.M. yelled.

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A neighbor heard the commotion and opened a door, asking defendant what he was doing.

Defendant fled. S.M. went to the police station and reported the attack.

¶ 15 On cross-examination, S.M. admitted she had attempted suicide sometime in the

1990s. S.M. was hospitalized for three days following her suicide attempt. S.M. denied ever

having approached Jennifer, the woman defendant was dating in 2008, with a gun. She

admitted having spoken with defendant in March 2012, but denied asking defendant to date

her again or offering to drop the charges. She explained that she contacted defendant on

behalf of their son, who was incarcerated.

¶ 16 Paramedic Eric Rodriguez testified he gave S.M. an ice pack and towel for a bleeding

lip laceration on March 30, 2010, at the gas station, and then transported her to Mercy

Hospital.

¶ 17 Dr. Sudhir Kelkar testified that he was an attending physician at Mercy Hospital on

March 30, 2010. He treated S.M. after she reported having been hit in the face with a fist.

Dr. Kelkar observed a laceration on the inside of S.M.'s upper lip and testified that this injury

was consistent with S.M. having been hit with a closed fist. Although other causes were

possible, Dr. Kelkar testified that this type of injury was a blunt trauma injury.

¶ 18 The State rested.

¶ 19 Brooks testified on defendant's behalf, explaining that he had known defendant and the

victim for two or three years. He denied having given the car keys back to S.M. in March

2010 and testified that defendant never asked him to give her anything. Brooks

acknowledged he had two prior felony convictions for possession of a controlled substance in

2008 and 2011.

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¶ 20 Jennifer Merideth also testified on defendant's behalf. She met S.M. in 2004 and

defendant in 2006. She began dating defendant after S.M. and defendant ended their

relationship. S.M. and Merideth did not get along once Merideth and defendant began to

date. She described a number of instances when, after Merideth started dating defendant,

S.M. allegedly attacked her. This included attempting to hit Merideth with her car, breaking

Merideth's home's windows with a gun, spraying Merideth with mace, spitting on Merideth,

and attempting to attack her at a gas station. She did not require medical treatment after

these incidents. She testified that she lived with defendant and they moved apartments after

S.M. broke their windows. Merideth testified that she obtained a one-year order of

protection against S.M. Merideth and defendant have a child together who was born in

March 2011.

¶ 21 Defendant testified on his own behalf. He admitted he knew there was an order of

protection against him at the time of the incident in question. He denied that he attacked

S.M. on March 20, 2010. He testified he did not get into a car with her and denied having

driven her anywhere on that day.

¶ 22 The defense rested. Following arguments by both parties, the jury found defendant

guilty of aggravated kidnapping, violation of an order of protection, and domestic battery. At

a subsequent sentencing hearing, the court sentenced defendant to 28 years' imprisonment for

aggravated kidnapping, 3 years' imprisonment for violation of an order of protection, and 3

years' imprisonment for domestic battery, all sentences to run concurrently.

¶ 23 Defendant appeals.

¶ 24 II. ANALYSIS

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¶ 25 A. The Felony Classification

¶ 26 On appeal, defendant first contends that his aggravated kidnapping conviction should

be reduced to kidnapping because the State failed to introduce evidence of his prior domestic

battery conviction that enhanced his domestic battery to a felony during the trial.

Specifically, defendant argues that the jury was only given opportunity to find defendant

guilty of misdemeanor domestic battery and not of felony domestic battery and, therefore,

defendant's domestic battery conviction cannot satisfy aggravated kidnapping's "another

felony" element. For the following reasons, we disagree.

¶ 27 It is the purview of the legislature to determine what is considered criminal conduct, to

assign penalties for that conduct, and to enact statutory provisions which enhance a criminal

offense or enhance the applicable range of punishment for an offense. People v. Thomas,

171 Ill. 2d 207, 223 (1996). We are mindful that the primary rule of statutory construction is

to ascertain and give effect to the intent of the legislature. People v. McChriston, 2014 IL

115310, ¶ 15; People v. Ramirez, 214 Ill. 2d 176, 179 (2005). The most reliable indicator

and best evidence of legislative intent is the language used in the statute itself, and where the

statutory is clear and unambiguous, its plain and ordinary meaning will be given effect.

Ramirez, 214 Ill. 2d at 179. Although the trial court has discretion to impose a sentence, we

review the issue de novo because it involves a question of law. People v. Chaney, 379 Ill.

App. 3d 524, 527 (2008); see also People v. Harris, 203 Ill. 2d 111, 116 (2003) (the

construction of a statute is a question of law for which review is de novo).

¶ 28 A person commits the offense of kidnapping when, in pertinent part, he knowingly and

secretly confines another against her will; or by force or threat of imminent force carries

another from one place to another with intent secretly to confine that other person against her

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will. 720 ILCS 5/10-1 (West 2010). A person commits the offense of aggravated

kidnapping when, in pertinent part, at the time he commits the offense of kidnapping, he

commits another felony upon his victim. 720 ILCS 5/10-2(a)(3) (West 2010).

¶ 29 A person commits the offense of domestic battery if, in pertinent part, he knowingly

without legal justification by any means causes bodily harm to any family or household

member. 720 ILCS 5/12-3.2 (a)(1) (West 2010). Domestic battery is a Class A

misdemeanor. 720 ILCS 5/12-3.2(b) (West 2010). However, domestic battery is a Class 4

felony if the defendant has any prior conviction for domestic battery. 720 ILCS 5/12-3.2(b)

(West 2010). Specifically, section 12-3.2(b) of the Criminal Code of 1961 (Code) sets forth

the possible classifications and sentences for this offense:

"(b) Sentence. Domestic battery is a Class A misdemeanor.

Domestic battery is a Class 4 felony if the defendant has any prior

conviction under this Code for domestic battery (Section 12-3.2) or

violation of an order of protection (Section 12-3.4 or 12-30), or any prior

conviction under the law of another jurisdiction for an offense which is

substantially similar." (Emphasis added.) 720 ILCS 5/12-3.2(b) (West

2010).

¶ 30 Section 111-3(a) of the Code of Criminal Procedure of 1963 sets forth what must be

included in a criminal charge:

"Form of charge.

(a) A charge shall be in writing and allege the commission of an

offense by:

(1) Stating the name of the offense;

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(2) Citing the statutory provision alleged to have been

violated;

(3) Setting forth the nature and elements of the offense

charged;

(4) Stating the date and county of the offense as definitely as

can be done; and

(5) Stating the name of the accused, if known, and if not

known, designate the accused by any name or description by which

he can be identified with reasonable certainty." 725 ILCS 5/111-

3(a) (West 2010).

¶ 31 Here, the charging instruments read, in pertinent part:

"The State's Attorney of Cook County now appears before the Circuit

Court of Cook County and in the name and by the authority of the People

of the State of Illinois states that on or about March 30, 2010 at and within

the County of Cook

Hubert Sumler

committed the offense of AGRAVATED KIDNAPING

in that in that [sic] HE, KNOWINGLY AND BY FORCE OR THREAT

OF IMMINENT FORCE CARRIED [S.M.] FROM ONE PLACE TO

ANOTHER WITH INTENT SECRETLY TO CONFINE [S.M.]

AGAINST HER WILL, AND HE COMMITTED ANOTHER FELONY

UPON [S.M.], TO WIT: DOMESTIC BATTERY,

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IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 10-2(a)(3) OF

THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND

Contrary to the Statute and against the peace and dignity of the same

People of the State of Illinois." (Count I)

¶ 32 And:

"The State's Attorney of Cook County now appears before the Circuit

Court of Cook County and in the name and by the authority of the People

of the State of Illinois states that on or about March 30, 2010 at and within

committed the offense of VIOLATION OF AN ORDER OF

PROTECTION

in that HE, KNOWINGLY OR INTENTIONALLY, COMMITTED AN

ACT WHICH WAS PROHIBITED BY THE CIRCUIT COURT OF

COOK COUNTY OR FAILED TO COMMIT AN ACT WHICH WAS

ORDERED BY THE COURT, IN A VALID ORDER OF PROTECTION

UNDER CASE NUMBER 08144541401, IN VIOLATION OF A

REMEDY AUTHORIZED UNDER PARAGRAPH 1 OF SUBSECTION

(b) OF SECTION 214 OF THE ILLINOIS DOMESTIC VIOLENCE ACT

OF 1986, TO WIT: STRUCK [S.M.] ABOUT THE BODY, AND SUCH

VIOLATION OCCURRED AFTER HUBERT SUMLER HAD BEEN

SERVED WITH NOTICE OF THE CONTENTS OF THE ORDER OF

PROTECTION OR HAD OTHERWISE ACQUIRED KNOWLEDGE OF

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THE CONTENTS OF THE ORDER, AND HE HAS BEEN

PREVIOUSLY CONVICTED OF THE OFFENSE OF DOMESTIC

BATTERY, UNDER CASE NUMBER 08144541401,

IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 12-30(a) OF THE

ILLINOIS COMPILED STATUTES 1992 AS AMENDED AND

Contrary to the Statute and against the peace and dignity of the same

People of the State of Illinois." (Count V)

¶ 33 And:

"The State's Attorney of Cook County now appears before the Circuit

Court of Cook County and in the name and by the authority of the People

of the State of Illinois states that on or about March 30, 2010 at and within

committed the offense of DOMESTIC BATTERY

in that HE, INTENTIONALLY OR KNOWINGLY WITHOUT LEGAL

JUSTIFICATION BY ANY MEANS CAUSED BODILY HARM TO

[S.M.], TO WIT: STRUCK [S.M.] ABOUT THE BODY, AND [S.M.]

WAS A FAMILY OR HOUSEHOLD MEMBER AS DEFINED IN

SUBSECTION (3) OF SECTION 112a-3 OF THE CODE OF

CRIMINAL PROCEDURE OF 1963 AS AMENDED, TO WIT: THEY

HAVE HAD A DATING RELATIONSHIP, AND HE HAS BEEN

PREVIOUSLY CINVICTED OF DOMESTIC BATTERY UNDER

CASE NUMBER 08144541401,

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IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 12-3.2(a)(1) OF

THE ILLIONIS COMPILED STATUTES 1992 AS AMENDED AND

contrary to the Statute and against the peace and dignity of the same

People of the State of Illinois." (Count XIII)

¶ 34 These charging instruments complied with section 111-3 in that each included: the

name of the offense, that is, aggravated kidnapping, violation of an order of protection, and

domestic battery. Each cited the statutory provisions alleged to have been violated, that is,

"Chapter 720 Act 5 Section 10-2(a)(3) of the Illinois Compiled Statutes 1992 as amended";

"Chapter 720 Act 5 Section 12-30 (a) of the Illinois Compiled Statutes 1992 as amended";

and "Chapter 720 Act 5 Section 12-3.2(a)(1) of the Illinois Compiled Statutes 1992 as

amended." Each stated the nature and elements of the offense charged, that is, "he,

knowingly by force of threat of imminent force carried [S.M.] from one place to another with

intent secretly to confine [S.M.] against her will, and he committed another felony upon

[S.M.], to wit: domestic battery"; he "struck [S.M.] about the body, and such violation

occurred after Hubert Sumler had been served with notice of the contents of the order of

protection or had otherwise acquired actual knowledge of the contents of the order, and he

has been previously convicted of the offense of domestic battery, under case number

08144541401"; and "he, intentionally or knowingly without legal justification by any means

caused bodily harm to [S.M.], to wit: struck [S.M.] about the body, and [S.M.] was a family

or household member as defined in subsection (3) of section 112A-3 of the Code of Criminal

Procedure of 1963 as amended, to wit: they have had a dating relationship, and he has been

previously convicted of domestic battery under case number 08144541401." Each also stated

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the date and county of the offense, as well as stated defendant's name as that of the accused.

See 725 ILCS 5/111-3(a) (West 2010).

¶ 35 Section 111-3(c) additionally provides, in pertinent part:

"(c) When the State seeks an enhanced sentence because of a prior

conviction, the charge shall also state the intention to seek an enhanced

sentence and shall state such prior conviction so as to give notice to the

defendant. However, the fact of such prior conviction and the State's

intention to seek an enhanced sentence are not elements of the offense and

may not be disclosed to the jury during trial unless otherwise permitted by

issues properly raised during such trial. For the purposes of this Section,

'enhanced sentence' means a sentence which is increased by a prior

conviction from one classification of offense to another higher level

classification of offense set forth in Section 5-4.5-10 of the Unified Code

of Corrections (730 ILCS 5/5-4.5-10); it does not include an increase in

the sentence applied within the same level of classification of offense."

725 ILCS 5/111-3(c) (West 2010).

¶ 36 Our supreme court has stated, "[t]he legislature enacted section 111-3(c) to ensure that

a defendant received notice, before trial, of the offense with which he is charged." (Emphasis

in original.) People v. Jameson, 162 Ill. 2d 282, 290 (1994). In construing a statute, we look

to the language of the statute itself, as the language ordinarily provides the best evidence of

the legislature's intent. Jameson, 162 Ill. 2d at 290.

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¶ 37 Our supreme court recently determined that when a prior conviction is already a

required element of the offense as alleged in the charging instrument, notice of enhancement

under section 111-3(c) is not required. People v. Easley, 2014 IL 115581, ¶¶ 19, 22-26.

¶ 38 In Easley, the defendant was convicted of unlawful use of a weapon by a felon (UUW

by a felon) based on his possession of a handgun and his previous conviction for UUW by a

felon. Easley, 2014 IL 115581, ¶ 10. The court sentenced the defendant under the Class 2

version of the UUW by a felon offense to nine years in prison. Easley, 2014 IL 115581, ¶¶

10-11. In this court, the defendant argued he was improperly sentenced as a Class 2 offender

because the State failed to notify him that it intended to charge him with an " 'enhanced'

Class 2 offense." Easley, 2014 IL 115581, ¶ 11. The appellate court agreed, concluding that

the defendant's Class 2 sentence violated section 111-3(c); the court then vacated the

defendant's sentence and remanded with instructions to impose a Class 3 sentence on the

defendant. Easley, 2014 IL 115581, ¶ 11.

¶ 39 On appeal to our supreme court, the court first observed that section 111-3(c) was

enacted to " 'ensure that a defendant receive notice, before trial, of the offense with which he

is charged.' (Emphasis in original.)" Easley, 2014 IL 115581, ¶ 18 (quoting Jameson, 162 Ill.

2d at 290). Our supreme court then held:

"In construing the language of section 111-3(c), it is clear that the

notice provision applies only when the prior conviction that would

enhance the sentence is not already an element of the offense. The

language of section 111-3(c) states that 'the fact of such prior conviction

and the State's intention to seek an enhanced sentence are not elements of

the offense and may not be disclosed to the jury during trial unless

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otherwise permitted by issues properly raised during such trial.'

(Emphasis added.) [Citation.] This language necessarily implies that

section 111-3(c) applies only when the prior conviction is not an element

of the offense. We therefore agree with the State and conclude that notice

under section 111-3(c) is not necessary when the prior conviction is a

required element of the offense. Under these circumstances, only one

class of felony conviction is possible for the offense as alleged in the

charging instrument." Easley, 2014 IL 115581, ¶ 19.

¶ 40 Applying the above reasoning to the facts of the case before it, the court noted that the

UUW by a felon statute specifically provides that a second or subsequent violation of the

section " 'shall be a Class 2 felony.' " (Emphasis omitted.) Easley, 2014 IL 115581, ¶ 21

(quoting 720 ILCS 5/24-1.1(e) (West 2008)). The court continued:

"The indictment in this case alleged that defendant was guilty of

unlawful use of a weapon by a felon in that he was previously convicted of

unlawful use of a weapon by a felon. The section 111-3(c) notice

provision clearly does not apply in this case because the State did not seek

to enhance defendant's sentence with his prior conviction. Rather, as

alleged in the indictment, defendant's Class 2 sentence was the only

statutorily allowed sentence under [the UUW by a felon statute].

Defendant could not have been given a Class 3 sentence under the

applicable sentencing statute." (Emphasis added.) Easley, 2014 IL

115581, ¶ 22.

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¶ 41 The court also found People v. Nowells, 2013 IL App (1st) 113209, also a UUW by a

felon case, persuasive. Easley, 2014 IL 115581, ¶ 25 ("We also find [Nowells] persuasive on

this issue. Nowells similarly held that the notice provisions of section 111-3(c) are

inapplicable when the prior conviction is a required element of the offense."). In Nowells,

the defendant was convicted of UUW by a felon and sentenced to a Class 2 sentence.

Nowells, 2013 IL App (1st) 113209, ¶ 1. On appeal, the defendant argued that "the trial court

erred in sentencing him as a Class 2 felon for [UUW] by a felon where the State had charged

him with the Class 3 offense of [UUW] by a felon and did not give [him] proper notice that it

was charging him with an enhanced Class 2 offense." Nowells, 2013 IL App (1st) 113209,

¶ 17. The court considered the Section 111-3(c) notice provision and determined that "notice

is not necessary when the prior conviction is a required element of the offense, such that only

one class of felony conviction is possible for that offense as alleged in the charging

instrument." Nowells, 2013 IL App (1st) 113209, ¶ 26.

¶ 42 The Nowells court explained that the charging instrument in that cause alleged the

defendant had committed the offense of UUW by a felon in that he was found in possession

of a firearm after having previously been convicted of a felony offense, delivery of a

controlled substance. Nowells, 2013 IL App (1st) 113209, ¶ 27. The court concluded that

the "section 111-3(c) notice provision does not apply in the instant case because the State did

not seek to enhance [the] defendant's sentence; as alleged in the indictment, defendant's Class

2 sentence was the only statutorily allowed sentence available in this situation." (Emphasis

in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27.

¶ 43 While we recognize that Easley involved a conviction for UUW by a felon, and the

case at bar involves convictions for aggravated kidnapping predicated on domestic battery,

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domestic battery, and violation of an order of protection, we nonetheless find the Easley

reasoning instructive.

¶ 44 Here, defendant had a previous conviction for domestic battery at the time he

committed the domestic battery at issue in this cause. Thus, when defendant was charged

with domestic battery, only a felony was statutorily available. 720 ILCS 5/12-3.2(b) (West

2010); see also Easley, 2014 IL 115581, ¶ 22. Defendant was also charged with aggravated

kidnapping, which charge alleged kidnapping under an asportation theory and enhanced by

the additional felony offense of domestic battery, that is, "he, knowingly by force of threat of

imminent force carried [S.M.] from one place to another with intent secretly to confine

[S.M.] against her will, and he committed another felony upon [S.M.], to wit: domestic

battery." As in Easley, the State was not seeking an enhanced sentence, but rather, the

imposition of the only sentence statutorily permissible for this offense. See Easley, 2014 IL

115581, ¶ 22; see also Nowells, 2013 IL App (1st) 113209, ¶ 27.

¶ 45 Defendant does not dispute the facts supporting his convictions, but argues that the

jury was only given opportunity to find defendant guilty of misdemeanor domestic battery

and not of felony domestic battery and, therefore, defendant's domestic battery conviction

cannot satisfy aggravated kidnapping's "another felony" element. We disagree, where the

State proved defendant committed kidnapping where he confined S.M. in a vehicle and

transported her to another location against her will. The State also proved defendant

committed domestic battery beyond a reasonable doubt where it established defendant

knowingly caused bodily harm to S.M., with whom he had three children. This domestic

battery conviction was a felony because, where defendant had a prior conviction for domestic

battery, he could not be charged with or convicted of anything less than the felony.

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Accordingly, the State proved defendant committed felony domestic battery while also

committing aggravated kidnapping.

¶ 46 In compliance with Easley and section 111-3(c), the State did not disclose defendant's

prior domestic battery conviction to the jury at trial. The jury was properly instructed:

"A person commits the offense of domestic battery when he

knowingly and by any means causes bodily harm to any family or

household member." Illinois Pattern Jury Instructions, Criminal, No. 11.11

(4th ed. 2000).

¶ 47 The jury found defendant guilty of domestic battery. The State then presented

defendant's prior conviction for domestic battery at the sentencing hearing, along with

certified copies of defendant's previous convictions for possession of a controlled substance

and for attempted murder. The trial court then sentenced defendant as a Class 4 felon for the

offense of aggravated kidnapping.

¶ 48 Our analysis here shows that, in line with our supreme court's opinion in Easley,

defendant was charged with and convicted of felony domestic battery as a matter of law.

Felony domestic battery was the only conviction possible for the offense of domestic battery

as alleged in the charging instrument ("he, intentionally or knowingly without legal

justification by any means caused bodily harm to [S.M.], to wit: struck [S.M.] about the

body, and [S.M.] was a family or household member as defined in subsection (3) of section

112A-3 of the Code of Criminal Procedure of 1963 as amended, to wit: they have had a

dating relationship, and he has been previously convicted of domestic battery under case

number 08144541401"). The domestic battery statute is clear that a domestic battery offense

is a Class 4 felony when the defendant has one or two prior convictions for domestic battery

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under section 12-3.2. 720 ILCS 5/12-3.2(b) (West 2010). Therefore, the legislature has

determined that defendant committed a Class 4 felony offense based on his prior domestic

battery conviction.

¶ 49 Starting from the fact, then, that the domestic battery conviction is properly a felony

conviction, we move on to the aggravated kidnapping statute. Under that statute, a person

commits the offense of aggravated kidnapping when, in pertinent part, at the time he commits

the offense of kidnapping, he commits another felony upon his victim. 720 ILCS 5/10-

2(a)(3) (West 2010). Where the State proved defendant committed felony domestic battery

at the same time he committed a kidnapping, and defendant does not contest the underlying

facts of the crime, as a matter of law, the State proved defendant guilty of aggravated

kidnapping. We affirm the decision of the trial court in this regard.

¶ 50 B. The Asportation of the Victim

¶ 51 Next, defendant contends that his conviction for aggravated kidnapping should be

reduced to unlawful restraint where the asportation was incidental to the offense of domestic

battery, the asportation was brief, and pushing S.M. out of the vehicle demonstrated that he

did not intend to kidnap her. We disagree.

¶ 52 Before we consider the merits of defendant's claim, we must first resolve a dispute

between the parties regarding the proper standard of review to be applied here. Defendant

maintains that a de novo standard of review is appropriate in this case because he does not

contest the facts supporting his conviction but, rather, raises a question of law as to whether

or not the victim's asportation was incidental to the domestic battery. The State, however,

argues that a sufficiency of the evidence standard should apply.

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¶ 53 This court has previously settled the question of the proper standard of review to be

applied in a similar circumstance. In People v. McCarter, 2011 IL App (1st) 092864, the

defendant argued for the reversal of his aggravated kidnapping conviction on the grounds

that the asportation of the victim was incidental to another crime committed. McCarter,

2011 IL App (1st) 092864, ¶ 59. Like the instant defendant, the McCarter defendant argued

for a de novo standard of review because the facts were not in dispute. McCarter, 2011 IL

App (1st) 092864, ¶ 60. The reviewing court, however, noted: "[W]hen a defendant

challenges incriminating inferences that may have been drawn by the trier of fact from the

evidence, the challenge constitutes a claim against the sufficiency of the evidence."

McCarter, 2011 IL App (1st) 092864, ¶ 60. In McCarter, we held that "[b]ecause the

defendant's challenge is directed at the quantum of evidence presented against him, the

correct standard of review is that which applies to the sufficiency of the evidence challenge."

McCarter, 2011 IL App (1st) 092864, ¶ 60. We agree with the court in McCarter that the

proper standard of review is that which applies to a challenge to the sufficiency of the

evidence.

¶ 54 When considering a challenge to the sufficiency of the evidence, a reviewing court

must determine whether, after viewing the evidence in the light most favorable to the State, a

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt. People v. Campbell, 146 Ill. 2d 363, 374 (1992). The trier of fact

determines the credibility of witnesses and the weight to be given their testimony, resolves

conflicts in the evidence, and draws reasonable inferences from the evidence. People v.

Ortiz, 196 Ill. 2d 236, 259 (2001). We will not substitute our judgment for that of the trier of

fact. Ortiz, 196 Ill. 2d at 259. A reviewing court must construe all reasonable inferences

20 1-12-3381

from the evidence in favor of the prosecution. People v. Bush, 214 Ill. 2d 318, 326 (2005).

We will not set aside a criminal conviction unless the evidence is so unreasonable,

improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. Ortiz,

196 Ill. 2d at 259.

¶ 55 As noted above, the Code provides that a person is guilty of aggravated kidnapping

when he commits the offense of kidnapping and also commits another felony upon his

victim. 720 ILCS 5/10-2(a)(3) (West 2010). A person commits the offense of kidnapping

when, in pertinent part, he knowingly and secretly confines another against her will; or by

force or threat of imminent force carries another from one place to another with intent

secretly to confine that other person against her will. 720 ILCS 5/10-1 (West 2010).

¶ 56 To determine whether an asportation or detention rises to the level of kidnapping as a

separate offense, this court considers the following four factors: (1) the duration of the

asportation or detention; (2) whether the asportation or detention occurred during the

commission of a separate offense; (3) whether the asportation or detention that occurred is

inherent in the separate offense; and (4) whether the asportation or detention caused a

significant danger to the victim independent of that posed by the separate offense. People v.

Smith, 91 Ill. App. 3d 523, 529 (1980). This determination depends on the particular facts

and circumstances of each case. People v. Ware, 323 Ill. App. 3d 47, 54 (2001).

¶ 57 Considering these factors, we first look at the duration of the asportation. Defendant

argues that the detention of the victim was for such a short period of time and for only a few

blocks that we should not consider it sufficient for "asportation" purposes. We disagree, " 'it

is well settled that "a kidnaping conviction is not precluded by the brevity of the asportation

or the limited distance of the movement." ' " People v. Watson, 342 Ill. App. 3d 1089, 1099

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(2003) (quoting People v. Jackson, 331 Ill. App. 3d 279, 294 (2002), quoting Ware, 323 Ill.

App. 3d at 54). "Indeed, this court has previously held that an asportation of less than one

block and a detention of a few minutes were sufficient to support a separate kidnaping

conviction." Jackson, 331 Ill. App. 3d at 294.

¶ 58 As to the second factor, the record also shows that the asportation of the victim

occurred after the commission of the separate offense of domestic battery. The evidence at

trial showed that defendant repeatedly hit the victim before entering the vehicle. He then

closed and locked the car with the victim inside, and forcibly drove away with the victim

inside, screaming for help. The domestic battery was complete prior to defendant driving

away with the victim in the car. This satisfies the second Smith factor.

¶ 59 As to the third factor, we find that the asportation was not inherent in the separate

offense of domestic battery. "[I]n order for the asportation or detention to be inherent in a

separate offense, it must constitute an element of that offense." People v. Quintana, 332 Ill.

App. 3d 96, 108 (2002). Here, the separate offense was domestic battery. A person commits

domestic battery when, in pertinent part, he knowingly without legal justification by any

means causes bodily harm to any family or household member. 720 ILCS 5/12-3.2 (West

2010). Because asportation and detention of the victim are not elements of the offense of

domestic battery, they are not "inherent" for purposes of this third factor.

¶ 60 Finally, we consider the fourth factor, whether the asportation or detention that

occurred created a significant danger to the victim independent of that posed by the separate

offense. In other words, did defendant's trapping the victim in her car, driving rapidly

through city streets while the victim screamed for help, and eventually shoving her out of the

vehicle create a significant danger to the victim independent of that posed by defendant

22 1-12-3381

hitting the victim while he was standing by her car? Defendant would have us believe that

the "asportation did not create a significant danger to [the victim] independent of that posed

by the separate offense of domestic battery [because the victim] was harmed when

[defendant] punched her and not by being driven a few blocks and released near a manned

gas station." We disagree. At minimum, defendant forced the victim to ride in a vehicle at a

high rate of speed through city streets, away from her home. She was subject to the

possibility that an accident could have occurred, that she could have injured herself in

attempting to escape from the speeding vehicle, or she could have injured herself when he

shoved her out of the car, leaving her alone and bleeding on a city street. Defendant forcibly

taking control of the victim's vehicle and driving her around as he did created a potential risk

to the victim that was substantially increased above the risk present in the initial domestic

battery itself. Having considered all the necessary factors, we conclude that defendant's

aggravated kidnapping conviction was not merely incidental to the domestic battery that

occurred.

¶ 61 Defendant also argues that the fact he pushed the victim out of the vehicle

demonstrates he did not intend to kidnap her. Again, we disagree. As stated above, there is

no minimum amount of time the victim must be confined or distance the aggressor must

travel with the victim in order to constitute a kidnapping. Rather, as here, to be guilty of

kidnapping, the defendant must, in pertinent part, by force or threat of imminent force carry

the victim from one place to another with intent to secretly confine that other person against

her will. 720 ILCS 5/10-1 (West 2010). The fact that defendant eventually released the

victim from the car does not negate the fact that he intended to confine her.

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¶ 62 Here, after viewing the evidence in the light most favorable to the State, we find that a

rational trier of fact could have found the facts and circumstances in this case show the

asportation and detention of the victim were independent from the offense of domestic

battery. The evidence was sufficient to find that the elements of this separate offense were

established beyond a reasonable doubt. The record shows defendant approached the victim's

parked vehicle from the driver's side while the victim's back was turned. Defendant

repeatedly hit her about the face and head. In order to attempt to escape through the

passenger door, the victim climbed into the passenger seat. However, defendant climbed in

after her and sat in the driver's seat. Defendant prevented her escape by driving quickly

away. Defendant drove rapidly for a number of city blocks. The victim screamed and kicked

the dashboard during this time in an effort to get other motorists' attention. Defendant did

not stop the vehicle. Defendant steered the vehicle toward the expressway, with the victim

screaming all the while. As they approached the expressway, defendant unlocked the car

doors, opened the passenger door, and pushed the victim out of the vehicle at a stop sign.

Defendant drove away, leaving the victim bleeding on the side of the road. Defendant's

conviction of aggravated kidnapping is affirmed.

¶ 63 C. Defendant's Sentence

¶ 64 Next, defendant contends that he is entitled to a new sentencing hearing. Specifically,

defendant argues that trial court erred when imposing his sentence "under the mistaken

belief" that defendant would only have to serve one-half of the sentence and that, had the trial

court understood he would be required to serve at least 85% of his sentence, it would have

imposed a lesser sentence.

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¶ 65 The State initially argues, and the defendant concedes, that he has forfeited this issue

for purposes of appeal by failing to object to it at trial and failing to raise it in his posttrial

motion. In order to preserve an issue for appeal, a defendant must first make an objection to

the alleged error at trial, and then raise it in a posttrial motion. People v. Enoch, 122 Ill. 2d

176, 186 (1988); see also People v. Allen, 222 Ill. 2d 340, 352 (2006) (noting that "even

constitutional errors can be forfeited"). Defendant nevertheless asks this court to review his

claim under the plain error doctrine, arguing that his he was deprived of his "substantive right

to fair and accurate sentencing proceedings." See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967)

("any error, defect, irregularity, or variance which does not affect substantial rights shall be

disregarded. Plain errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the trial court."); People v. Herron, 215 Ill. 2d 167, 186-

87 (2005).

¶ 66 Generally, and as defendant notes, the plain error doctrine allows us to consider a

forfeited error when either the evidence is close or when the error is of sufficient seriousness.

See Herron, 215 Ill. 2d at 186-87. Under the first prong, a defendant must prove a

prejudicial error occurred, namely, that there was plain error and that the evidence was so

closely balanced that this error alone severely threatened to tip the scales of justice against

him. See Herron, 215 Ill. 2d at 187; accord People v. Piatkowski, 225 Ill. 2d 551, 565

(2007). The second prong of the plain error doctrine examines the seriousness of the error,

regardless of the closeness of the evidence. See Herron, 215 Ill. 2d at 187; accord

Piatkowski, 225 Ill. 2d at 565. The defendant must prove that there was plain error and that

the error was so serious that it affected the fairness of his trial and challenged the integrity of

the judicial process. See Herron, 215 Ill. 2d at 187. Ultimately, before a plain error analysis

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may be undertaken, the defendant must show that an error occurred, for, absent error, there

can be no plain error. See People v. McGee, 398 Ill. App. 3d 789, 794 (2010) (citing Herron,

215 Ill. 2d at 187); see also Piatkowski, 225 Ill. 2d at 565 ("the first step is to determine

whether error occurred").

¶ 67 The plain error doctrine is a narrow and limited exception to the general rule of

forfeiture. People v. Bowman, 2012 IL App (1st) 102010, ¶ 29 (citing Herron, 215 Ill. 2d at

177). Under either prong of the plain error doctrine, the burden of persuasion remains on the

defendant. Bowman, 2012 IL App (1st) 102010, ¶ 30 (citing People v. Lewis, 234 Ill. 2d 32,

43 (2009)).

¶ 68 "The first step of plain-error review is to determine whether any error occurred."

Lewis, 234 Ill. 2d at 43; see also People v. Wilson, 404 Ill. App. 3d 244, 247 (2010) ("There

can be no plain error if there was no error at all ***."). This requires "a substantive look" at

the issue raised. (Internal quotation marks omitted.) People v. Johnson, 208 Ill. 2d 53, 64

(2003). We will therefore first review the defendant's claim to determine if there was any

error before considering it under plain error.

¶ 69 A trial court has broad discretion in determining an appropriate sentence. People v.

Patterson, 217 Ill. 2d 407, 448 (2005). A reviewing court will reverse the trial court's

sentencing determination only where the trial court has abused its discretion. Patterson, 217

Ill. 2d at 448. A sentence within the statutory range does not constitute an abuse of

discretion unless it varies greatly from the purpose of the law or is manifestly

disproportionate to the nature of the offense. People v. Henderson, 354 Ill. App. 3d 8, 19

(2004). The trial court may appropriately consider the defendant's credibility, demeanor,

general moral character, mentality, social environment, habits, and age when sentencing a

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defendant. People v. Fern, 189 Ill. 2d 48, 53 (1999). Where mitigating evidence is presented

to the trial court, it is presumed, absent some indication other than the sentence itself to the

contrary, that the court considered it. People v. Benford, 349 Ill. App. 3d 721, 735 (2004).

When determining the propriety of a particular sentence, we cannot substitute our judgment

for that of the trial court simply because we would weigh the sentencing factors differently.

Fern, 189 Ill. 2d at 53.

¶ 70 In the case at bar, the trial court held a sentencing hearing during which it heard

arguments from counsel in aggravation and mitigation. The State provided the court with

certified copies of convictions for domestic battery, Class 4 possession of a controlled

substance, and attempted murder. The victim presented a victim impact statement in which

she recounted a history of being beaten by defendant. The State argued in aggravation that

defendant had been repeatedly in and out of prison, that defendant at the time of this crime

had an order of protection against him which he ignored, and that defendant continued to

abuse the victim even after the incident in the case at bar. The State argued defendant was a

"dangerous person" with a prior history including a 1995 possession of a firearm and three

prior domestic battery convictions with the same victim. The State asked for an extended

sentence of over 30 years' imprisonment.

¶ 71 Defense counsel admitted to a 1999 Class M conviction, but disagreed that there was a

Class X conviction. Defense counsel argued that there had been a "long hateful relationship

between" the victim and defendant "from both sides." He said the victim was angry because

defendant had a new girlfriend. Defense counsel asked for a sentence in the "mid-range."

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¶ 72 In elocution, defendant said only "I would like to say that I would like to apologize to

her for the things that happened during the course of our relationship. So that's all there is,

your Honor. That's all there is."

¶ 73 After hearing arguments, the court stated:

"THE COURT: I find the following factors in aggravation and

mitigation to be appropriate. In aggravation the defendant has a prior

criminal record consisting of four prior domestic battery convictions, an

attempted murder conviction, and carrying a firearm, and possession of a

controlled substance as laid out in the pre-sentence investigation, which

may be filed with the amendments made today.

In aggravation the sentence is necessary for the protection of the

public and specifically for the protection of the victim in this case. And in

aggravation the sentence is necessary also for the rehabilitation of the

defendant should such a thing be possible.

In mitigation, to be honest with you, Mr. Sumler, I don't find a

whole lot to be in mitigation here, quite frankly. And in your whole life

here you have some educational ability, apparently, and you have

discontinued your drug use, apparently, so I will consider those in

mitigation. You've apparently been getting along well in the jail since I

haven't heard anything about that.

And in mitigation, the victim in this was not severely injured as a

result of this. When I say 'severely injured,' I'm talking about requiring

28 1-12-3381

extensive hospitalization, and that for that reason alone I don't think an

extended term would be appropriate at this time.

So now based upon your, having considered your nature and

circumstances of the offense, the arguments of counsel the statement of

the defendant, and the pre-sentence investigation with the amendments

made here today, it is the judgment and sentence of the court, Mr. Sumler,

that on Count 1, the aggravated [kidnapping] you will be sentenced to 28

years in the Illinois Department of Corrections."

¶ 74 The court also sentenced defendant to three years' imprisonment for the violation of the

order of protection, and three years' imprisonment for the domestic battery conviction, all

sentences to run concurrently. It is the aggravated kidnapping sentence with which defendant

takes issue here.

¶ 75 Defendant was convicted of aggravated kidnapping, a Class X offense with a

sentencing range of 6 to 30 years' imprisonment. 720 ILCS 5/10-2(b) (West 2010); 730

ILCS 5/5-4.5-25(a) (West 2010). Based on his criminal history, including a prior Class X

felony conviction for attempted murder, defendant was also eligible for an extended-term

sentence of up to 60 years. 730 ILCS 5/5-4.5-25(a) (West 2010). Defendant's sentence for

aggravated kidnapping of 28 years, therefore, is within the sentencing parameters for that

crime. In aggravation, the court specifically mentioned defendant's criminal history,

including prior convictions for domestic battery, attempted murder, carrying a firearm, and

possession of a controlled substance. In mitigation, although the court stated it did not find

many mitigating factors, it did acknowledge defendant's education, his effort to discontinue

drug use, the assumption that he had been getting along well in jail, and the fact that the

29 1-12-3381

victim's injuries did not require extensive hospitalization. The court also explained that it

considered the nature and circumstances of the offense, the character and background of the

defendant, arguments of counsel, defendant's elocution statement, and the presentence

investigation report when determining defendant's sentence. It also stated that the sentence

was necessary for the protection of the victim and the public, as well as necessary for

defendant's potential rehabilitation. From the record before us it is clear that the court

considered proper aggravating and mitigating factors prior to imposing a sentence, and

crafted a sentence within the proper sentencing range.

¶ 76 Defendant, however, argues the court sentenced him to 28 years' imprisonment for

aggravated kidnapping in error. Defendant argues that the court was "under the mistaken

belief that [defendant] would be required to serve half of that sentence when in fact truth-in-

sentencing requires him to serve 85 percent of the term." Therefore, argues defendant, the

sentence is a result of an abuse of the court's discretion and he is entitled to a new sentencing

hearing.

¶ 77 Section 3-6-3(a)(2.1) of the Unified Code of Corrections sets forth the general rule

that those imprisoned will be entitled for day-for-day good-conduct credit against their

sentences. 730 ILCS 5/3-6-3(a)(2.1) (West 2010). The term "truth-in-sentencing" refers to a

change in the statutory method that the Department of Corrections uses to calculate the

amount of good-conduct credit. People v. Davis, 405 Ill. App. 3d 585, 602 (2010); People v.

Salley, 373 Ill. App. 3d 106, 109 (2007). Under the truth-in-sentencing provisions, a person

convicted of certain enumerated offenses, including aggravated kidnapping, would receive no

more than 4.5 days of credit for each month of his sentence. 730 ILCS 5/3-6-3(a)(2)(ii)

(West 2010); Davis, 405 Ill. App. 3d at 602. Thus, defendant must serve at least 85% of his

30 1-12-3381

sentence and does not receive normal day-for-day good-conduct credit. Salley, 373 Ill. App.

3d at 109.

¶ 78 At the end of the sentencing hearing in the case at bar, after the court announced

defendant's sentence, the following question-answer took place, on which defendant relies:

"Q. [DEFENSE COUNSEL:] Your Honor, is that at the 85 percent or is

that at the 50?

A. THE COURT: That aggravated kidnapping?

Q. The aggravated kidnapping.

A. No, that's at 50."

¶ 79 We agree it appears the trial court may have misapprehended the amount of time

defendant would have to serve. However, there is nothing before us to show that the court

based defendant's sentence on that mistaken belief. On the record before us, defendant is

unable to show that the trial court considered the potential for good time credit when

determining defendant's sentence. Defendant is unable to show error where the record

reflects that the trial court considered appropriate factors including aggravation, mitigation,

and defendant's potential for rehabilitation when crafting a sentence that was within the

sentencing range.

¶ 80 Nonetheless, even if this were error, defendant's claim would still fail where the

evidence presented at the sentencing hearing was not closely balanced, and any error was not

so egregious as to deny defendant a fair sentencing hearing. See Piatkowski, 225 Ill. 2d at

565 (the plain error doctrine is a narrow and limited exception to the general rule of forfeiture

and it "allows a reviewing court to consider unpreserved error when (1) a clear or obvious

error occurred and the evidence is so closely balanced that the error alone threatened to tip

31 1-12-3381

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") (citing Herron, 215 Ill. 2d at 186-87). At the sentencing hearing,

as quoted above, the trial court specifically noted that there were not many mitigating factors

in defendant's favor, stating:

"THE COURT: In mitigation, to be honest with you, Mr. Sumler, I don't

find a whole lot to be in mitigation here, quite frankly.

¶ 81 It went on to list the mitigating factors, including defendant's education, his effort to

discontinue his drug use, the fact that defendant apparently was "getting along well in jail,"

and the fact that the victim's injuries did not require extensive hospitalization.

¶ 82 In aggravation, however, the court mentioned many factors, including defendant's

criminal background of four domestic battery convictions involving the same victim, an

attempted murder, possession of a firearm, and possession of a controlled substance. The

court stated that it believed defendant's sentence was necessary to protect the public, protect

the victim, and for any potential rehabilitation of defendant. Because the evidence presented

at this sentencing hearing was not closely balanced, defendant is unable to overcome the

"closely balanced" prong of the plain error analysis.

¶ 83 Neither was any error that occurred at the sentencing hearing so egregious as to deny

defendant a fair sentencing hearing. Specifically, the court's understanding of the truth-in-

sentencing applicability to defendant's sentencing did not impact the sentence it imposed.

See, e.g., People v. Frison, 365 Ill. App. 3d 932, 934 (2006) (In the context of a guilty plea,

"though the truth-in-sentencing law may well affect the sentence defendant ultimately serves,

32 1-12-3381

it does not affect the sentence imposed by the trial court. Moreover, given that it concerns

good-conduct credit, its application is not definite, immediate, or automatic."). In addition, a

defendant is not guaranteed the award of good-conduct credit under the truth-in-sentencing

law, as such good-conduct award is not automatic, but is contingent upon a defendant's

behavior in prison. People v. Castano, 392 Ill. App. 3d 956, 959-60 (2009). Any credit

defendant may receive remains unknown and was not a matter the trial court could have

determined. Defendant is unable to show any relationship between error at sentencing and

the result of this case and is, therefore, also unable to overcome the second prong of the plain

error analysis.

¶ 84 In the alternative, defendant argues that he was denied the effective assistance of trial

counsel where counsel failed to preserve this error for review by objecting at trial. Defendant

argues that "reasonable counsel familiar with the Code of Corrections would have corrected

the trial court's misapprehension that truth-in-sentencing did not apply to Hubert's aggravated

kidnapping conviction" and there "is a reasonable probability that the trial court would have

sentenced Hubert to a substantially shorter sentence if counsel had informed the court that

Hubert would be required to serve 85 percent of his aggravated kidnapping sentence."

¶ 85 To establish a claim of ineffective assistance of counsel, a defendant must show that:

(1) his attorney's representation fell below an objective standard of reasonableness; and (2)

he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668,

687-88 (1984); People v. Palmer, 162 Ill. 2d 465, 475 (1994). Failure to make the requisite

showing of either deficient performance or sufficient prejudice defeats the claim. Palmer,

162 Ill. 2d at 475-76. Defendant's claim fails because, just as he is unable to show resulting

prejudice under a plain error analysis, he is unable to show resulting prejudice under an

33 1-12-3381

ineffective assistance of counsel analysis. In holding with our analysis above, the evidence

was not closely balanced and defendant did not suffer prejudice as a result of any error.

¶ 86 D. One Act, One Crime

¶ 87 Defendant next contends his conviction for domestic battery must be vacated.

Specifically, he argues that his conviction for domestic battery violated the one-act, one-

crime doctrine because it was a lesser included offense of aggravated kidnapping predicated

on domestic battery. As the State concedes, defendant is correct.

¶ 88 Although defendant failed to properly preserve this issue by raising it in the trial court,

our supreme court has considered such claim under the substantial rights prong of the plain

error rule. People v. Harvey, 211 Ill. 2d 368, 389 (2004). Consistent with Harvey, we

address defendant’s claim.

¶ 89 Briefly, we note that our state supreme court set forth the one-act, one-crime doctrine

in People v. King, 66 Ill. 2d 551, 566 (1977), which held that multiple convictions are

improper if they are based on precisely the same physical act and, since then, our courts have

made clear that a defendant may not be convicted of multiple offenses based on the same act.

See People v. Johnson, 237 Ill. 2d 81, 97 (2010); accord People v. Burney, 2011 IL App (4th)

100343, ¶ 86 (where a single act is involved, multiple convictions are improper); see also

People v. Miller, 238 Ill. 2d 161, 165 (2010).

¶ 90 In deciding whether one of defendant’s convictions must be vacated, we first

determine whether defendant’s conduct constituted a single act or separate acts. People v.

Rodriguez, 169 Ill. 2d 183, 186 (1996). If the conduct in question constituted a single act, the

conviction in question must be vacated. Rodriguez, 169 Ill. 2d at 186. Under the one-act,

34 1-12-3381

one-crime rule, an “act” is defined as “any overt or outward manifestation which will support

a different offense.” King, 66 Ill. 2d at 566.

¶ 91 When a defendant is convicted of two crimes for the same act, the lesser offense is

merged into the greater offense. People v. Artis, 232 Ill. 2d 156, 170 (2009); People v. Lee,

213 Ill. 2d 218, 227 (2004).

¶ 92 Here, defendant was convicted of both aggravated kidnapping and domestic battery. In

charging defendant with aggravated kidnapping, the State alleged that defendant knowingly

and by force of threat or imminent force carried S.M. from one place to another with the

intent to secretly confine her against her will, and that he committed domestic battery. In

charging defendant with domestic battery, the State alleged that defendant caused bodily

harm to S.M., with whom he had a dating relationship. Because the aggravated kidnapping

charge was predicated on the offense of domestic battery, all of the elements of domestic

battery were included in the charge of aggravated kidnapping predicated on domestic battery.

The domestic battery charge did not contain any elements that were not included in the

aggravated kidnapping predicated on domestic battery charge. Therefore, the charge of

domestic battery was a lesser included offense of aggravated kidnapping.

¶ 93 Therefore, and in line with the State’s concessions on this issue, we hold that

defendant’s conviction for domestic battery violated the one-act, one-crime doctrine.

Therefore, defendant's sentence for aggravated kidnapping should be upheld and the

conviction for domestic battery should be vacated. Artis, 232 Ill. 2d at 170 (when a

defendant is convicted of two crimes for the same act, the lesser offense is merged into the

greater offense); Lee, 213 Ill. 2d at 227.

35 1-12-3381

¶ 94 Therefore, as defendant's mittimus reflects one 28-year term for his aggravated

kidnapping conviction and a second 3-year term for his domestic battery conviction, we

correct the mittimus to vacate the latter conviction and sentence.

¶ 95 III. CONCLUSION

¶ 96 Accordingly, we vacate the judgment entered on defendant's conviction of domestic

battery; order the clerk of the court to correct the mittimus to reflect convictions for

aggravated kidnapping and violation of an order of protection, and affirm the judgment of the

trial court in all other respects.

¶ 97 Affirmed in part and vacated in part. Mittimus corrected.