{ "id": 2461888, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "1990-07-25", "docket_number": "No. 5\u201489\u20140270", "first_page": "1018", "last_page": "1023", "citations": [ { "type": "official", "cite": "200 Ill. App. 3d 1018" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "335 N.E.2d 53", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2708898 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0744-01" ] }, { "cite": "147 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "13 Ill. 2d 63", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2776029 ], "weight": 2, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/13/0063-01" ] }, { "cite": "537 N.E.2d 351", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "353-54" } ], "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 660", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499056 ], "weight": 4, "pin_cites": [ { "page": "663-64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0660-01" ] }, { "cite": "291 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926001 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0101-01" ] }, { "cite": "460 N.E.2d 866", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "870" } ], "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3522749 ], "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0070-01" ] }, { "cite": "529 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "221" }, { "page": "221" } ], "opinion_index": 0 }, { "cite": "124 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218603 ], "weight": 2, "pin_cites": [ { "page": "103" }, { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0093-01" ] }, { "cite": "477 N.E.2d 759", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 828", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3442392 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0828-01" ] }, { "cite": "544 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "188 Ill. App. 3d 155", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2688941 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0155-01" ] }, { "cite": "435 N.E.2d 477", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "91 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091996 ], "weight": 4, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0164-01" ] } ], "analysis": { "cardinality": 479, "char_count": 9102, "ocr_confidence": 0.75, "pagerank": { "raw": 1.42652444343063e-07, "percentile": 0.6500550804313302 }, "sha256": "73df1a01c1d9f29ee6a14fbef53c55adef84aa925412d0da41214f233dba89a0", "simhash": "1:3b7c7cc6efd7ad56", "word_count": 1494 }, "last_updated": "2023-07-14T19:01:37.473766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOWERTON\ndelivered the opinion of the court:\nUnhappy with the outcome of a two-on-two basketball game, defendant got a gun and shot his opponent. Injured, the opponent lived.\nDefendant was charged with armed violence, attempted murder, and aggravated battery.\nThere was a jury trial. After defendant had heard the testimony of five State\u2019s witnesses, he withdrew his plea of not guilty and pleaded guilty to armed violence and aggravated battery. The attempted murder charge was dismissed as agreed.\nA factual basis was given. It was clear; defendant had fired only once.\nThe circuit court of St. Clair County honored the plea agreement and sentenced defendant to concurrent prison terms of 13 years for armed violence and five years for aggravated battery.\nOne shot. One injury. Two convictions.\nDefendant filed a pro se motion to withdraw his guilty pleas, claiming that a 13-year sentence was excessive and that his trial counsel had been ineffective.\nCounsel was appointed, who then filed an amended motion, claiming that the factual basis was insufficient and that defendant had not been properly admonished.\nBoth motions were denied.\nOn appeal, defendant argues that the aggravated battery conviction must be vacated because it is based on the same act as the armed violence conviction. We agree and vacate defendant\u2019s aggravated battery conviction and five-year sentence thereon.\nIn Illinois, it is well established that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges. People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.\nThe elements of the offense of armed violence are simply stated: \u201cA person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 33A \u2014 2.) Therefore, \u201c[o]ne cannot violate the armed violence statute without first committing a felony. The alleging of that felony in the armed violence charge has the effect, upon conviction, of making it a necessarily included offense.\u201d People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479.\nHere, there was only one act, a single shot. The convictions for both armed violence and aggravated battery, therefore, were improper, and the aggravated battery conviction must be vacated. People v. Bridges (1989), 188 Ill. App. 3d 155, 544 N.E.2d 40; People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477; People v. Kujawa (1985), 132 Ill. App. 3d 828, 477 N.E.2d 759.\nOn appeal, the State does not argue that defendant\u2019s aggravated battery conviction and five-year sentence are proper, but instead argues that this issue has not been preserved for appellate review, that it has been waived because: (1) defendant failed to include this issue in his motions to withdraw his guilty plea; and (2) defendant\u2019s conviction and sentence were the result of an agreement voluntarily entered into by defendant. We do not accept either argument.\nIllinois Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) provides that, \u201c[u]pon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.\u201d\nIn People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221, the supreme court of Illinois noted that the purpose of Rule 604(d) is both to insure that a defendant\u2019s constitutional rights are protected and to avoid abuses by a defendant. The court expressly stated that rules such as Rule 604(d) \u201cconcerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions.\u201d People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221.\nThere is an exception to the waiver rule, however. Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), commonly known as the \u201cplain error rule,\u201d allows a reviewing court, in its discretion, to rule on plain errors or defects which affect substantial rights. People v. Smalley (1984), 122 Ill. App. 3d 70, 77, 460 N.E.2d 866, 870.\nMultiple convictions for the same act are plain error. People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1.\nAnd, besides being plain error, the conviction and sentence on the\nlesser offense are void, which allows a defendant to attack the void judgment entered thereon, notwithstanding his failure to satisfy Rule 604(d). People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351.\nIn People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351, we held that when the judgment of the circuit court is void, it can be attacked at any time. Specifically, we stated:\n\u201c[T]he argument that a judgment in a criminal case is void is, as we have indicated, a matter which can be raised at any time. This is so regardless of whether the argument was properly preserved for review.\u201d Perruquet, 181 Ill. App. 3d at 663-64, 537 N.E.2d at 353-54.\nIs defendant\u2019s aggravated battery conviction void?\nIn People v. Schlenger (1958), 13 Ill. 2d 63, 147 N.E.2d 316, a defendant was convicted of both armed robbery and grand larceny. On appeal, our supreme court recognized that because armed robbery necessarily involved an unlawful taking, defendant\u2019s grand larceny conviction was \u201cunnecessary\u201d and \u201csuperfluous.\u201d The court, therefore, reversed the grand larceny conviction because it could prejudice defendant\u2019s parole opportunities. (People v. Schlenger (1958), 13 Ill. 2d 63, 66, 147 N.E.2d 316, 318.) While Schlenger used the words \u201cunnecessary\u201d and \u201csuperfluous\u201d to describe the grand larceny conviction, the term \u201cvoid\u201d was absent.\nSince more than one conviction cannot result from the same physical act, where courts improperly have imposed multiple convictions, appellate courts have vacated the improper conviction. (See, e.g., People v. Bridges (1989), 188 Ill. App. 3d 155, 544 N.E.2d 40; People v. Kujawa (1985), 132 Ill. App. 3d 828, 477 N.E.2d 759; People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) However, those cases which vacate the improper convictions do not use the term \u201cvoid.\u201d\nAccording to Black\u2019s Law Dictionary, to \u201cvacate\u201d means \u201c[t]o render an act void.\u201d (Black\u2019s Law Dictionary 1388 (5th ed. 1979).) Therefore, we hold that where a defendant receives multiple convictions for both armed violence and the underlying felony, and a single physical act is the basis for both offenses, the underlying felony conviction is void and, therefore, must be vacated.\nHere, we hold that defendant\u2019s aggravated battery conviction is void. Because the aggravated battery conviction is void, defendant can attack the circuit court\u2019s void judgment at any time, even though defendant did not include the objection in his motion to withdraw the guilty plea. People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351.\nThe State also argues that because defendant agreed to plead guilty to the aggravated battery charge as well as to the more serious charge of armed violence, defendant now cannot complain of the aggravated battery conviction, and relies on People ex rel. Bassin v. Isreal (1975), 31 Ill. App. 3d 744, 335 N.E.2d 53.\nIsreal does not apply. It is distinguishable. It also is limited to its own facts.\nIn Isreal, defendant plea bargained for a reduced sentence in return for a plea of guilty to attempted voluntary manslaughter, an offense that does not exist. The court held that defendant received a benefit \u2014 a reduced and certain sentence \u2014 by giving up a jury trial and an uncertain result. The basis of the bargain was a plea to a nonexistent crime. Therefore, the benefit received caused the court to hold defendant to his bargain. The result is not surprising. Had the conviction been reversed, it is doubtful that Isreal could have been recharged with any meaningful offense.\nIn short, Isreal stands for the proposition that it is not unlawful for the State and the defendant to bargain for a plea of guilty to a nonexistent crime, if defendant gets a benefit.\nIn contrast, in the case at bar, defendant did not plead to a nonexistent crime in return for a reduced sentence. Therefore, the theory that supports the result in Isreal is not here present. Instead this case is governed by the principle that multiple convictions for the same act are unlawful, and therefore, defendant\u2019s consent cannot cure the improper nature of multiple convictions. People v. Kujawa (1985), 132 Ill. App. 3d 828, 477 N.E.2d 759.\nDefendant's conviction and five-year concurrent sentence for aggravated battery are vacated.\nDefendant did not pursue his claim of ineffective assistance of counsel.\nJudgment vacated in part.\nRARICK and HARRISON, JJ., concur.", "type": "majority", "author": "JUSTICE HOWERTON" } ], "attorneys": [ "Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "John Baricevic, State\u2019s Attorney, of Belleville, and Steven J. Della Rose, of Riverdale (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD JOHNSON, Defendant-Appellant.\nFifth District\nNo. 5\u201489\u20140270\nOpinion filed July 25, 1990.\nDaniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nJohn Baricevic, State\u2019s Attorney, of Belleville, and Steven J. Della Rose, of Riverdale (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1018-01", "first_page_order": 1040, "last_page_order": 1045 }