{ "id": 411627, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID MOSHIER, Defendant-Appellant", "name_abbreviation": "People v. Moshier", "decision_date": "2000-04-20", "docket_number": "No. 3 \u2014 99 \u2014 0604", "first_page": "879", "last_page": "883", "citations": [ { "type": "official", "cite": "312 Ill. App. 3d 879" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "660 N.E.2d 548", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "550" }, { "page": "549" } ], "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 29", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172383 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "32" }, { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0029-01" ] }, { "cite": "566 N.E.2d 1351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1353" } ], "opinion_index": 0 }, { "cite": "142 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236660 ], "year": 1991, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0013-01" ] }, { "cite": "688 N.E.2d 57", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "64" } ], "opinion_index": 0 }, { "cite": "179 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801363 ], "year": 1997, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0055-01" ] }, { "cite": "572 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "213 Ill. App. 3d 828", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2604384 ], "year": 1991, "pin_cites": [ { "page": "835" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0828-01" ] }, { "cite": "703 N.E.2d 11", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1998, "pin_cites": [ { "page": "33" }, { "page": "33" }, { "page": "32-33" }, { "page": "33" }, { "page": "33" }, { "page": "33" } ], "opinion_index": 0 }, { "cite": "184 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926989 ], "weight": 7, "year": 1998, "pin_cites": [ { "page": "104-05" }, { "page": "105" }, { "page": "103-05" }, { "page": "104-05" }, { "page": "104-05" }, { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0058-01" ] }, { "cite": "380 N.E.2d 1210", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "1211-12", "parenthetical": "a claim that sentences imposed were excessive necessarily includes the issue of the one-act-one-crime theory" } ], "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 159", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3332085 ], "year": 1978, "pin_cites": [ { "page": "160", "parenthetical": "a claim that sentences imposed were excessive necessarily includes the issue of the one-act-one-crime theory" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0159-01" ] }, { "cite": "617 N.E.2d 431", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "435" }, { "page": "435" } ], "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928870 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "510-11" }, { "page": "510-11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0505-01" ] }, { "cite": "481 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1235" } ], "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 502", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3601165 ], "year": 1985, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0502-01" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "566" }, { "page": "566" }, { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "363 N.E.2d 1208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "1211" } ], "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5638644 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "152" }, { "page": "151-52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0148-01" ] }, { "cite": "184 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926989 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/ill-2d/184/0058-01" ] }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "566" }, { "page": "566" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/66/0551-01" ] } ], "analysis": { "cardinality": 480, "char_count": 9776, "ocr_confidence": 0.777, "pagerank": { "raw": 1.2355813362703457e-07, "percentile": 0.6066492679689047 }, "sha256": "be099f6f6be0be51ab19c278aaa4381bca304661ec961c3e88b611e5d467634b", "simhash": "1:3a0d1ecc1b44ce21", "word_count": 1565 }, "last_updated": "2023-07-14T15:51:04.567640+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. DAVID MOSHIER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nDefendant David Moshier pled guilty to one count of theft (720 ILCS 5/16 \u2014 1(a)(1)(A) (West 1994)) and one count of official misconduct (720 ILCS 5/33 \u2014 3(b) (West 1994)). The trial court sentenced him to concurrent five-year prison terms. Defendant appeals, claiming that his conviction for official misconduct should be vacated on one-act-one-crime principles and that his sentences are excessive. We affirm in part and vacate in part.\nIn 1977, defendant was elected to serve a four-year term as the Indian Point Township supervisor. He was reelected every four years, through 1997. In 1998, the State charged defendant with official misconduct and theft. The indictment alleged that defendant converted \u201cin excess of $100,000.00\u201d in township money. Defendant pled guilty to each charge, and the trial court sentenced him to concurrent terms of five years\u2019 imprisonment. In addition, the court ordered him to pay $150,360.96 in restitution. Defendant filed a motion to reconsider his sentences, which was denied.\nI\nDefendant argues that his conviction for official misconduct should be vacated because it is based on the same conduct underlying his theft conviction. The State responds that defendant waived this issue by failing to file a motion to withdraw his guilty plea. Alternatively, the State claims that it charged defendant with multiple criminal acts.\nIt is well settled that a criminal defendant may not be convicted of more than one offense carved from the same physical act. People v. Hajostek, 49 Ill. App. 3d 148, 152, 363 N.E.2d 1208, 1211 (1977). However, \u201c[mjultiple convictions and concurrent sentences should be permitted *** where a defendant has committed several acts, despite the interrelationship of those acts.\u201d People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844 (1977). The term \u201cact\u201d is defined as \u201cany overt or outward manifestation which will support a different offense.\u201d King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45; People v. Fisher, 135 Ill. App. 3d 502, 505, 481 N.E.2d 1233, 1235 (1985). Objections to surplus convictions, though technically waived, may be considered as plain error. People v. Lee, 247 Ill. App. 3d 505, 510-11, 617 N.E.2d 431, 435 (1993).\nHere, defendant did not file a motion to withdraw his guilty plea for official misconduct. However, he filed a motion to reconsider his sentences, claiming that they were excessive. Therefore, defendant has preserved this issue for appeal. See People v. Jackson, 64 Ill. App. 3d 159, 160, 380 N.E.2d 1210, 1211-12 (1978) (a claim that sentences imposed were excessive necessarily includes the issue of the one-act-one-crime theory). Alternatively, we consider this issue as plain error. See Lee, 247 Ill. App. 3d at 510-11, 617 N.E.2d at 435.\nThe State charged defendant with theft and official misconduct. Count I (official misconduct) alleges that defendant:\n\u201ca public officer, the Indian Point Township Supervisor, while acting in his official capacity as Indian Point Township Supervisor, knowingly performed an act which he knew was forbidden by law to perform, in that while acting as Indian Point Township Supervisor, he committed theft in excess of $100,000.00, in that *** [he] knowingly exerted unauthorized control over the property of Indian Point Township, a body politic, said property being certain checks and money of Indian Point Township, having a total value in excess of $100,000.00, in that said defendant knowingly used the aforesaid checks and money in such a manner so as to deprive Indian Point Township permanently of the use of said property.\u201d\nCount II (theft) alleges that defendant:\n\u201cknowingly exerted unauthorized control over the property of Indian Point Township, a body politic, said property being certain checks and money of Indian Point Township, having a total value in excess of $100,000.00, in that said defendant knowingly used the aforesaid checks and money in such a manner so as to deprive Indian Point Township permanently of the use of said property.\u201d\nThe indictment does not allege any additional acts on the part of defendant. The State, nonetheless, cites People v. McLaurin, 184 Ill. 2d 58, 703 N.E.2d 11 (1998), claiming that multiple convictions are appropriate because defendant committed multiple acts.\nIn McLaurin, the State alleged that the defendant entered the victim\u2019s home and set a fire, which led to the victim\u2019s death. 184 Ill. 2d at 104-05, 703 N.E.2d at 33. A jury convicted the defendant of several offenses, including intentional murder and home invasion. On appeal, the defendant argued that \u201cthe convictions for intentional murder and home invasion resulted from the same physical act, that is, the setting of the fire.\u201d 184 Ill. 2d at 105, 703 N.E.2d at 33. The supreme court rejected this argument, explaining that \u201cthe offense of home invasion involved an additional physical act of entering the dwelling of the victim.\u201d 184 Ill. 2d at 103-05, 703 N.E.2d at 32-33.\nThe crucial difference between McLaurin and the present case derives from the substance of the charging document in each. In McLaurin, the State alleged multiple physical acts, i.e., entering the victim\u2019s home and starting a fire which resulted in death. 184 Ill. 2d at 104-05, 703 N.E.2d at 33. By charging the defendant with the additional act of entering the victim\u2019s home, the State was able to obtain an additional conviction for home invasion. 184 Ill. 2d at 104-05, 703 N.E.2d at 33.\nIn this case, the State also charged defendant with separate crimes. However, both counts of the indictment are based on the same act of converting \u201ccertain checks and money *** having a total value in excess of $100,000.00.\u201d Although the State claims that defendant\u2019s knowledge of wrongdoing as a public official is an additional act, it constitutes neither a physical act (see McLaurin, 184 Ill. 2d at 104-05, 703 N.E.2d at 33) nor an overt or outward manifestation capable of supporting a different offense. See King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45. Accordingly, we reject the State\u2019s argument. See People v. Arbo, 213 Ill. App. 3d 828, 835, 572 N.E.2d 417, 422 (1991); People v. Hajostek, 49 Ill. App. 3d at 151-52, 363 N.E.2d at 1211. Defendant\u2019s conviction for official misconduct is vacated. See People v. Garcia, 179 Ill. 2d 55, 71, 688 N.E.2d 57, 64 (1997).\nII\nDefendant further argues that his sentence for theft is excessive. He claims that his poor health, lack of criminal history, dedication to public service and rehabilitative potential require a lesser sentence.\nA reviewing court will not engage in the reweighing of sentencing factors. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353 (1991). We presume that the trial court considered all mitigating evidence before it, absent a contrary indication other than the sentence. People v. Cagle, 277 Ill. App. 3d 29, 32, 660 N.E.2d 548, 550 (1996). A sentence will not be altered on review unless it amounts to an abuse of discretion. Cagle, 277 Ill. App. 3d at 30, 660 N.E.2d at 549.\nThe sentencing range for defendant\u2019s theft conviction is 4 to 15 years. See 730 ILCS 5/5 \u2014 8 \u2014 1(a)(4) (West 1994). The trial court sentenced him to five years\u2019 imprisonment. In sentencing defendant, the trial court considered defendant\u2019s lack of criminal record, time spent in public office and deteriorating health. The court specifically stated that, but for defendant\u2019s poor health, it may have considered imposing a stiffer sentence. Based on a review of the record, we cannot say that defendant\u2019s five-year sentence is an abuse of discretion. Defendant\u2019s five-year sentence for theft is affirmed.\nDefendant\u2019s conviction for official misconduct is vacated. The judgment of the circuit court of Peoria County is affirmed in part and vacated in part.\nAffirmed in part and vacated in part.\nSLATER, EJ., concurs.\nDefendant also contends that his sentence for official misconduct is excessive, and that the trial court improperly considered compensation as an aggravating factor in relation to the official misconduct conviction. However, we need not address these issues, since we have vacated defendant\u2019s conviction for official misconduct.", "type": "majority", "author": "JUSTICE LYTTON" }, { "text": "JUSTICE HOLDRIDGE,\nconcurring in part and dissenting in part:\nL concur in the majority\u2019s holding that defendant\u2019s sentence for theft was not excessive. However, 1 disagree with the finding that defendant\u2019s conviction for official misconduct should be vacated and 1 dissent from that portion of this disposition.\nMultiple convictions and concurrent sentences are allowed where, as here, the defendant commits several acts, despite their interrelationship. People v. McLaurin, 184 Ill. 2d 58 (1998). The term \u201cact\u201d as the majority notes, includes \u201cany overt or outward manifestation which will support a different offense.\u201d People v. King, 66 Ill. 2d 551, 566 (1977). Official misconduct and theft are separate offenses, with the defendant\u2019s knowledge of his wrongdoing as a public official in committing theft being the additional \u201cact\u201d necessary to support the charging of different offenses. People v. King, 66 Ill. 2d 551, 566 (1977).\nAs I find that the offenses of official misconduct and theft were separate, I would affirm the defendant\u2019s convictions for both official misconduct and theft.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE HOLDRIDGE," } ], "attorneys": [ "Donna K. Kelly (argued), of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Paul Mangieri, State\u2019s Attorney, of Galesburg (John X. Breslin and Robert M. Hansen (argued), 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. DAVID MOSHIER, Defendant-Appellant.\nThird District\nNo. 3 \u2014 99 \u2014 0604\nOpinion filed April 20, 2000.\nHOLDRIDGE, J., concurring in part and dissenting in part.\nDonna K. Kelly (argued), of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nPaul Mangieri, State\u2019s Attorney, of Galesburg (John X. Breslin and Robert M. Hansen (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0879-01", "first_page_order": 899, "last_page_order": 903 }