{ "id": 132334, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY McDONALD, Defendant-Appellant", "name_abbreviation": "People v. McDonald", "decision_date": "2001-03-30", "docket_number": "No. 1\u201499\u20141631", "first_page": "470", "last_page": "475", "citations": [ { "type": "official", "cite": "321 Ill. App. 3d 470" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "316 Ill. App. 3d 1139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096572 ], "year": 2000, "pin_cites": [ { "page": "1141-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/1139-01" ] }, { "cite": "144 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3501088 ], "year": 1986, "pin_cites": [ { "page": "1034" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/1027-01" ] }, { "cite": "226 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238160 ], "year": 1992, "pin_cites": [ { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0771-01" ] }, { "cite": "259 Ill. App. 3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871346 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "452" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0445-01" ] }, { "cite": "154 Ill. App. 3d 214", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3646180 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "216" }, { "page": "216-17" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0214-01" ] }, { "cite": "313 Ill. App. 3d 76", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186469 ], "year": 2000, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0076-01" ] }, { "cite": "176 Ill. 2d 584", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 119", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847549 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "127" }, { "page": "127" }, { "page": "128" }, { "page": "129" }, { "page": "129" }, { "page": "129" }, { "page": "129" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0119-01" ] }, { "cite": "163 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477642 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "105" }, { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0093-01" ] }, { "cite": "179 Ill. 2d 319", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801345 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "323" }, { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0319-01" ] }, { "cite": "169 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909174 ], "year": 1995, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0001-01" ] }, { "cite": "282 Ill. App. 3d 608", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159526 ], "year": 1996, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0608-01" ] } ], "analysis": { "cardinality": 551, "char_count": 11359, "ocr_confidence": 0.797, "pagerank": { "raw": 1.2435277599634017e-07, "percentile": 0.6084924256201809 }, "sha256": "bb5a13f6d07bf0a8ba143a85a68608ebaabcfba2700486f5c2d8d302f330a26a", "simhash": "1:47abb9236379d4f7", "word_count": 1891 }, "last_updated": "2023-07-14T16:50:01.734981+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. LARRY McDONALD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COHEN\ndelivered the opinion of the court:\nDefendant Larry McDonald was indicted on two counts of the Class X felony of armed robbery and one count of the Class 3 felony of aggravated battery. 720 ILCS 5/18\u20142(a)(2) (West Supp. 1999); 720 ILCS 5/12\u20144(b)(10) (West 1998). The State nol-prossed the aggravated battery charge prior to trial. Following a bench trial, the trial court convicted McDonald of two counts of the Class 1 felony of aggravated robbery. 720 ILCS 5/18\u20145 (West 1998). Based on McDonald\u2019s prior criminal record, the trial court sentenced McDonald to an extended prison term of 28 years. 730 ILCS 5/5\u20145\u20143.2(b)(1), 5\u20148\u20142(a)(3) (West 1998). McDonald\u2019s posttrial motion for reduction of sentence was denied as untimely.\nOn appeal, McDonald contends that the trial court violated his right to due process of law by convicting him of aggravated robbery where aggravated robbery was neither a charged offense nor sufficiently alleged in the indictment against him. McDonald urges: (1) that we review this issue as a matter of plain error; (2) that we reduce his convictions to the Class 2 felony of robbery (720 ILCS 5/18\u20141 (West 1998)); and (3) that we remand the cause for a new sentencing hearing.\nOn November 13, 2000, we issued an order in this matter pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23). McDonald petitioned for rehearing. The order of November 13, 2000, was subsequently withdrawn to allow consideration of the petition for rehearing, as well as McDonald\u2019s motion for leave to cite additional authority, both of which are taken with the case. We hereby grant McDonald\u2019s motion for leave to cite additional authority and deny his petition for rehearing.\n1. Sufficiency of Charging Instrument\nIn requesting that we review this matter under principles of plain error, McDonald concedes that because he failed to challenge his indictment either at trial or in a posttrial motion, he has otherwise waived the error. People v. Nathan, 282 Ill. App. 3d 608, 610 (1996). Plain error is\n\u201cmarked by \u2018fundamental [un]fairness\u2019 [which] occurs only in situations which \u2018reveal breakdowns in the adversary system,\u2019 as distinguished from \u2018typical trial mistakes.\u2019 [Citation.] Put differently, what must be affected by the asserted error must be something \u2018fundamental to the integrity of the judicial process.\u2019 [Citation.] Essentially, the fairness of the trial must be undermined.\u201d People v. Keene, 169 Ill. 2d 1, 17 (1995).\nUnder the circumstances before us, McDonald\u2019s convictions are indeed the result of plain error and must be reversed.\nIt is axiomatic that no one may be convicted of an offense not expressly charged unless that offense is a lesser included offense of that which is expressly charged. People v. Hamilton, 179 Ill. 2d 319, 323 (1997); People v. Novak, 163 Ill. 2d 93, 105 (1994); People v. Jones, 293 Ill. App. 3d 119, 127 (1997), appeal denied, 176 Ill. 2d 584 (1998). The trial court convicted McDonald of two counts of aggravated robbery, an uncharged Class 1 felony. 720 ILCS 5/18\u20145 (West 1998). These convictions may only be upheld if we find aggravated robbery to be a lesser included offense of the charged offense of armed robbery. Hamilton, 179 Ill. 2d at 323; Jones, 293 Ill. App. 3d at 127.\nIn Jones, we addressed the question of whether aggravated robbery is a lesser included offense of armed robbery in the context of whether the defendant was entitled to a lesser included offense jury instruction:\n\u201cIn considering whether a crime is a lesser included offense of another, Illinois follows a \u2018charging instrument\u2019 analysis. [Citation.] Under this approach, an offense is determined to be a lesser included offense, not by analyzing the statutory elements of the crimes involved and the possible theoretical ways in which [the] charged offense and alleged lesser included offense could be committed, but rather by comparing the charging instrument to the alleged lesser included offense to see whether the charging instrument sufficiently describes the \u2018foundation\u2019 or \u2018main outline\u2019 of that offense. [Citation.]\u201d Jones, 293 111. App. 3d at 128, citing Novak, 163 IE. 2d at 107, 112.\nTherefore, aggravated robbery may be found to be a lesser included offense of armed robbery in any given prosecution: the precise language of the charging instrument is determinative. In order to support McDonald\u2019s aggravated robbery convictions, the indictment against him must be found to sufficiently allege the \u201cfoundation\u201d or \u201cmain outline\u201d of the offense of aggravated robbery. Jones, 293 Ill. App. 3d at 128.\nArmed robbery and aggravated robbery require different elements of proof. The elements of the offenses differ in that armed robbery requires that a defendant \u201ccarr[y] on or about his or her person or [be] otherwise armed with a firearm,\u201d while aggravated robbery requires that a defendant \u201cindicat[e] verbally or by his or her actions to the victim that he or she is presently armed with a firearm or other dangerous weapon.\u201d 720 ILCS 5/18\u20142(a)(2) (West Supp. 1999); 720 ILCS 5/18\u20145(a) (West 1998).\nThe indictment in Jones alleged armed robbery as follows:\n\u201c \u2018Robert Jones committed the offense of armed robbery in that he, by the use of force or by threatening the imminent use of force while armed with a dangerous weapon, to wit: a handgun[,] took United States currency from the person or presence of Elaine Ramos ***.\u2019 \u201d Jones, 293 Ill. App. 3d at 129.\nWe held that \u201c[although this indictment does allege the use of a firearm, an allegation sufficient to meet part of the third element of the aggravated robbery statute, it clearly does not allege that the gun was ever displayed to Ramos or that the defendant implied to Ramos that he possessed a gun.\u201d Jones, 293 Ill. App. 3d at 129. We found such an allegation to be a \u201cnecessary \u2018foundation\u2019 or \u2018main element\u2019 \u201d of the aggravated robbery charge and, following the reasoning of our supreme court in Novak, held that such an allegation could not be inferred from the remaining allegations of the indictment. Jones, 293 Ill. App. 3d at 129; Novak, 163 Ill. 2d at 114. We therefore affirmed the trial court\u2019s refusal to tender the defendant\u2019s requested jury instruction on aggravated robbery. Jones, 293 Ill. App. 3d at 129.\nMcDonald was charged with two counts of armed robbery by means of the following indictment:\n\u201cLAWRENCE MCDONALD committed the offense of ARMED ROBBERY in that HE, BY THE USE OF FORCE OR BY THREATENING THE IMMINENT USE OF FORCE WHILE ARMED WITH A DANGEROUS WEAPON, TO WIT: A GUN[,] TOOK UNITED STATES CURRENCY FROM THE PERSON OR PRESENCE OF ROSEMARY NAPIER ***.\u201d\nMcDonald\u2019s second armed robbery indictment was identical to the first, except that the name \u201cDALE GRASS\u201d was substituted for that of \u201cROSEMARY NAPIER.\u201d Aside from the names, the sole difference between the indictments against McDonald and the indictment we considered in Jones is that McDonald\u2019s indictment uses the word \u201cgun,\u201d as opposed to the use of the word \u201chandgun\u201d in Jones. We see no reason to alter our analysis: under Jones, the indictment against McDonald did not sufficiently allege the \u201cfoundation\u201d or \u201cmain outline\u201d of the offense of aggravated robbery\u2014that McDonald \u201cindicat[ed] verbally or by his *** actions to the victim[s] that he [was] presently armed with a firearm or other dangerous weapon.\u201d 720 ILCS 5/18\u20145(a) (West 1998); see Jones, 293 Ill. App. 3d at 128. Under the language of the indictments before us, aggravated robbery cannot be considered a lesser included offense of the charged offense of armed robbery. Therefore, these indictments cannot support McDonald\u2019s aggravated robbery convictions. The trial court committed plain error in convicting McDonald of an uncharged offense that was not a lesser included offense of the charged offense of armed robbery. McDonald\u2019s convictions violate due process and must be reversed. People v. Fitzgerald, 313 Ill. App. 3d 76, 79 (2000).\n2. Double Jeopardy Concerns\nIt could be argued that the trial court impliedly acquitted McDonald of armed robbery and that double jeopardy would bar a new trial on this charge. U.S. Const., amend. V; Ill. Const. 1970, art. I, \u00a7 10. (\u201cNo person shall be *** twice put in jeopardy for the same offense\u201d). We disagree.\nAt sentencing, the trial court stated the following: \u201cIn regard to the case of People versus Lawrence McDonald\u2019s apparent two Counts [sic] of armed robbery, finding of guilty to the charge of aggravated robbery.\u201d\n\u201cOrdinarily, when a conviction is overturned because of trial error, the State is free to retry the defendant until he is convicted in an error-free trial; of course, once he is acquitted, whether or not in an error-free proceeding, that is the end of the proceedings and the bar of double jeopardy descends. [Citation.] Therefore, to invoke double jeopardy defendant must somehow find an acquittal in these convictions.\u201d People v. Hill, 154 Ill. App. 3d 214, 216 (1987).\nThe defendant cannot \u201cfind an acquittal\u201d in his conviction by means of the implied acquittal rule. \u201cThere is an implied acquittal of an offense where there is a guilty verdict on a lesser offense and silence as to the charged offense.\u201d People v. Fisher, 259 Ill. App. 3d 445, 452 (1994). However, because the implied acquittal rule applies only to convictions on lesser included offenses, the rule has no effect in the case at bar. Fisher, 259 Ill. App. 3d at 452; People v. Donnelly, 226 Ill. App. 3d 771, 776 (1992).\nFurthermore, absent the mechanism of the implied acquittal rule, we have no basis from which to infer whether the trial court intended to acquit McDonald of armed robbery by entering a judgment of conviction on aggravated robbery. Thus, we decline to infer from this confused verdict, in the face of the trial court\u2019s silence on the matter, any actual finding that McDonald was innocent of armed robbery. \u201cThe verdict[ ] in the case at bar [was] a confusion from which no findings of fact should be inferred. Hence, the verdict! ] provide[s] no basis for collaterally estopping the government to retry defendant for [armed robbery].\u201d Hill, 154 Ill. App. 3d at 216-17. See also People v. Batson, 144 Ill. App. 3d 1027, 1034 (1986).\nBoth the State (in preparing its charging instruments) and the trial courts (in rendering their verdicts) must endeavor to maintain an acute awareness of potential lesser included offenses and whether, under our case law, guilty verdicts on such offenses would find support in the language of the offense as charged.\nWe cannot afford McDonald his requested relief: no convictions remain for us to reduce under Rule 615(b)(3). 134 Ill. 2d R. 615(b)(3); People v. Finn, 316 Ill. App. 3d 1139, 1141-42 (2000).\nFor the foregoing reasons, the judgment of the trial court is reversed, and the cause is remanded for a new trial.\nReversed and remanded for new trial.\nMcNULTY, P.J., and O\u2019MARA FROSSARD, J., concur.", "type": "majority", "author": "JUSTICE COHEN" } ], "attorneys": [ "Michael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Susan Schierl Sullivan, and Kathryn A. Schierl, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY McDONALD, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201499\u20141631\nOpinion filed March 30, 2001.\nRehearing denied May 4, 2001.\nMichael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Susan Schierl Sullivan, and Kathryn A. Schierl, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0470-01", "first_page_order": 488, "last_page_order": 493 }