{ "id": 3833600, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN PALMER, Defendant-Appellant", "name_abbreviation": "People v. Palmer", "decision_date": "2004-03-26", "docket_number": "No. 2-02-0592", "first_page": "942", "last_page": "957", "citations": [ { "type": "official", "cite": "346 Ill. App. 3d 942" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "334 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 522022 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "318" }, { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0311-01" ] }, { "cite": "331 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209189 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "386" }, { "page": "386-87", "parenthetical": "between two convictions for aggravated criminal sexual assault predicated upon one act of sexual penetration, conviction that has as its aggravating factor the display of a dangerous weapon is less serious than conviction based upon causing bodily harm" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0380-01" ] }, { "cite": "172 Ill. 2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55994 ], "year": 1996, "pin_cites": [ { "page": "102", "parenthetical": "a single entry will support only a single conviction, regardless of the number of occupants with respect to the home invasion statute" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0085-01" ] }, { "cite": "183 W. Va. 25", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8575007 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "28", "parenthetical": "multiple convictions rendered on the same day should be treated as a single conviction for purposes of the habitual criminal statute, and multiple convictions can be enhanced under the statute only once for purposes of sentencing" }, { "page": "666", "parenthetical": "multiple convictions rendered on the same day should be treated as a single conviction for purposes of the habitual criminal statute, and multiple convictions can be enhanced under the statute only once for purposes of sentencing" } ], "opinion_index": 0, "case_paths": [ "/w-va/183/0025-01" ] }, { "cite": "686 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11886565 ], "year": 1998, "pin_cites": [ { "page": "839", "parenthetical": "in the event of simultaneous multiple-felony convictions and a finding of habitual offender status, trial courts must impose the resulting penalty enhancement upon only one of the convictions and must specify the conviction to be so enhanced" } ], "opinion_index": 0, "case_paths": [ "/ne2d/686/0834-01" ] }, { "cite": "181 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498998 ], "year": 1989, "pin_cites": [ { "page": "628", "parenthetical": "Illinois courts have long followed the principle of statutory construction that specific statutory provisions control over general statutory provisions" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0621-01" ] }, { "cite": "178 Ill. 2d 509", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385578 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "538" }, { "page": "515" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0509-01" ] }, { "cite": "135 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256644 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "106" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0078-01" ] }, { "cite": "252 Ill. App. 3d 547", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2965481 ], "year": 1993, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/252/0547-01" ] }, { "cite": "165 Ill. 2d 235", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483556 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0235-01" ] }, { "cite": "199 Ill. 2d 130", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58928 ], "year": 2002, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0130-01" ] }, { "cite": "308 Ill. App. 3d 943", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261337 ], "year": 1999, "pin_cites": [ { "page": "948" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0943-01" ] }, { "cite": "191 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229719 ], "year": 2000, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0493-01" ] }, { "cite": "201 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477020 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "307" }, { "page": "307" }, { "page": "308" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0300-01" ] }, { "cite": "315 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980671 ], "year": 2000, "pin_cites": [ { "page": "1050-51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/1049-01" ] }, { "cite": "203 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799372 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "345", "parenthetical": "supplemental opinion filed March 31, 2003" }, { "parenthetical": "supplemental opinion filed March 31, 2003" }, { "page": "344" }, { "page": "342" }, { "page": "345" }, { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0335-01" ] }, { "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": "203 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799372 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "344" }, { "page": "343" }, { "page": "344" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/203/0335-01" ] }, { "cite": "203 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799372 ], "year": 2001, "pin_cites": [ { "page": "344" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/203/0335-01" ] } ], "analysis": { "cardinality": 1089, "char_count": 34804, "ocr_confidence": 0.761, "pagerank": { "raw": 5.283736356691492e-08, "percentile": 0.33113011608012666 }, "sha256": "ae6d58e1bf175f796a38f5b59b54afdba29af9aa50cbbd893aa7c15232150eef", "simhash": "1:73a9db2c595686c9", "word_count": 5731 }, "last_updated": "2023-07-14T19:44:33.584383+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. NATHAN PALMER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Nathan Palmer, was convicted of one count of attempted first degree murder (720 ILCS 5/8 \u2014 4(a), 9 \u2014 1(a)(1) (West 2002)), two counts of home invasion (720 ILCS 5/12 \u2014 11 (West 2002)), one count of armed robbery (720 ILCS. 5/18\u2014 2(a) (West 2002)), and four counts of aggravated criminal sexual assault (720 ILCS 5/12 \u2014 14(a)(1), 14(a)(2) (West 2002)). Adjudged an habitual criminal, defendant was sentenced to seven consecutive life sentences. On appeal, defendant argues that the court erred in imposing consecutive life sentences, because section 33B \u2014 1(c) of the Criminal Code of 1961 (the habitual criminal statute) (720 ILCS 5/33B \u2014 1(c) (West 2002)) mandates that convictions connected with the same transaction be counted as one conviction (720 ILCS 5/33B\u2014 1(c) (West 2002)). In addition, defendant argues that two of the convictions violate the one-act, one-crime rule set forth in People v. King, 66 Ill. 2d 551, 566 (1977), and that the indictment failed to differentiate between separate acts of criminal sexual assault, as required under People v. Crespo, 203 Ill. 2d 335, 345 (2001) (supplemental opinion filed March 31, 2003). We affirm in part, reverse in part, and vacate in part.\nIn an amended indictment filed on March 22, 2000, defendant was charged with two counts of home invasion, one count of attempted murder, four counts of aggravated criminal sexual assault, and one count of armed robbery. Count I alleged that defendant entered the dwelling place of M.J. and used force or threatened the use of force while armed with a dangerous weapon. Count II alleged that defendant entered the dwelling place of D.J. and intentionally caused him injury by slashing his throat. Count III alleged that defendant intended to kill D.J. by strangling him with an electrical cord and slashing his throat. Counts IV and V alleged that defendant, while displaying a knife, placed his penis in the mouth and vagina of M.J. by the use of force. Counts VI and VII alleged that defendant caused bodily harm to M.J. by placing his penis in her mouth and vagina. Count VIII alleged that defendant, while armed with a knife, took cash and a ring from M.J. by the use of force or by threatening the use of force.\nOnly a brief recitation of the facts is necessary for the purposes of this appeal. On July 18, 1999, at approximately 12:30 p.m., defendant knocked on the door of M.J. and D.J.\u2019s two-bedroom apartment. M.J., D.J., and their two children were inside the apartment at the time. Defendant asked M.J. if she wanted to buy a newspaper, and M.J. replied that she did not. D.J., who was sitting on the couch at the time, also indicated that he did not wish to buy a newspaper. At this point, defendant was standing inside the apartment, although M.J. had not invited him to enter.\nDefendant took out a steak knife and placed it against M.J.\u2019s neck. Defendant instructed M.J. and D.J. to get M.J.\u2019s purse, and defendant was given $50. While the children were in the living room, defendant then directed M.J. and D.J. into the bedroom, where he took M.J.\u2019s wedding ring. Defendant then tied D.J.\u2019s hands with an extension cord and had M.J. place a pillow case over D.J.\u2019s head. Defendant threatened to kill D.J. if M.J. refused to comply.\nNext, defendant unzipped his shorts and told M.J. to \u201csuck\u201d his penis. Defendant made M.J. get on her knees before \u201cshov[ing] it in [her] mouth\u201d for about 20 minutes. During this time, defendant held the knife at M.J.\u2019s back. Defendant failed to ejaculate. When the children came to the bedroom door, defendant instructed M.J. to make them return to the living room. Defendant then had M.J. suck his penis again, although he did not ejaculate. At this point, defendant had M.J. remove her clothes, get on the bed, and \u201cplay with her genitals.\u201d Defendant fondled himself but again failed to ejaculate.\nDefendant then directed D.J. to get on the bed, and told M.J. to \u201csuck\u201d D.J.\u2019s penis. At trial, M.J. testified that defendant also placed his penis or his fingers into her vagina for a minute or two. After reviewing her taped statement to police regarding the incident, M.J. testified that she had told police that defendant inserted his penis into her vagina.\nNext, defendant and M.J. went into the kitchen and defendant took some beer out of the refrigerator. Upon returning to the bedroom, defendant \u201cshoved\u201d his penis into M.J.\u2019s mouth, causing her to vomit. After defendant forced M.J. to clean up the vomit, he had her sit on a chair where he tied her wrists with an electrical cord. Defendant again forced his penis into her mouth for about 15 minutes. After failing to ejaculate, defendant placed a pillow case over M.J.\u2019s head, hit her in the face, put a towel in her mouth, and put her in the bathroom.\nWhile in the bathroom, M.J. removed the pillow case from her head and observed defendant and D.J. struggling in the bedroom. According to D.J., defendant attempted to strangle him with the extension cord, and D.J. pretended that he was dying. After learning that D.J. was trying to trick him, defendant took the knife and slit his throat. M.J. then ran screaming out of the apartment, defendant exited via the stairwell, and a 911 operator was called.\nThe jury found defendant guilty on all eight counts and judgment was entered on February 27, 2002. On May 14, 2002, the State filed a petition to have defendant adjudicated an habitual criminal. On May 30, 2002, defendant filed a motion for a new trial and a motion to declare the habitual criminal statute (720 ILCS 5/33B \u2014 1 (West 2002)) unconstitutional. The court denied these motions.\nAt the hearing on the petition, the State presented certified copies of convictions showing that defendant was convicted of criminal sexual assault on October 14, 1987, and aggravated criminal sexual assault on March 25, 1994. Defendant stipulated that this information was accurate and that he met the statutory requirements necessary to be adjudicated an habitual criminal. The court adjudged defendant an habitual criminal on May 30, 2002. The court then ordered that counts I and II as to home invasion would merge for the purposes of sentencing. Defendant was sentenced to seven consecutive life sentences for counts II through VIII.\nOn appeal, defendant contends that the court erred in imposing consecutive life sentences. As a preliminary matter, we note that the State argues that this issue was waived because it was not raised at trial. However, pursuant to Supreme Court Rule 615(a), we may review plain errors affecting substantial rights even where they were not brought to the attention of the trial court. 134 Ill. 2d R. 615(a). Because sentencing issues are regarded as matters affecting a defendant\u2019s substantial rights and are thus excepted from the doctrine of waiver, we consider the merits of defendant\u2019s argument. See People v. Baaree, 315 Ill. App. 3d 1049, 1050-51 (2000).\nAccording to defendant, the court erred in imposing seven consecutive life sentences, because the habitual criminal statute prohibits the imposition of more than one sentence of life imprisonment when all of the convictions \u201care connected with the same transaction, or result from offenses committed at the same time\u201d (720 ILCS 5/33B \u2014 1(c) (West 2002)). Defendant maintains that, because all of his convictions were connected with the same transaction, section 33B \u2014 1(c) mandated that they be treated as \u201cone conviction\u201d for the purposes of sentencing. Thus, based on this \u201cone conviction,\u201d only one life sentence should have been imposed. As this is an issue of statutory construction, our review is de novo. In re Detention of Lieberman, 201 Ill. 2d 300, 307 (2002).\nOur primary objective in construing the meaning of a statute is to ascertain and give effect to the intention of the legislature. Lieberman, 201 Ill. 2d at 307. In order to determine legislative intent, we examine the language of the statute, which is \u201c \u2018the most reliable indicator of the legislature\u2019s objectives in enacting a particular law.\u2019 \u201d Lieberman, 201 Ill. 2d at 308, quoting Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). The statutory language is to be afforded its plain, ordinary, and popularly understood meaning. Lieberman, 201 Ill. 2d at 308. If the language of the statute is unambiguous, the court must not depart from the language and read into it exceptions, limitations, or conditions. People v. Patterson, 308 Ill. App. 3d 943, 948 (1999). Moreover, \u201ccriminal or penal statutes are to be strictly construed in favor of the accused, and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute.\u201d People v. Davis, 199 Ill. 2d 130, 135 (2002).\nThis case hinges upon the interpretation of section 33B \u2014 1(c) of the habitual criminal statute, which states, in pertinent part:\n\u201c(a) Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault, aggravated kidnapping or first degree murder, and is thereafter convicted of a Class X felony, criminal sexual assault or first degree murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.\n(b) The 2 prior convictions need not have been for the same offense.\n(c) Any convictions which result from or are connected with the same transaction, or result from offenses committed at the same time, shall be counted for the purposes of this Section as one conviction.\n(e) Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment.\u201d 720 ILCS 5/33B \u2014 1 (West 2002).\nAdjudication as an habitual criminal subjects a defendant to a mandatory sentence of natural life imprisonment. The question before us is whether an habitual criminal may receive consecutive life sentences for offenses that were connected with the same transaction. While the habitual criminal statute has withstood numerous constitutional attacks (see People v. Dunigan, 165 Ill. 2d 235 (1995)), our research has revealed no cases addressing this particular issue.\nIt is the State\u2019s position that the trial court properly imposed consecutive life sentences in this case. The State does not dispute that defendant\u2019s convictions were connected with the same transaction. Rather, the State asserts that the word \u201cconvictions\u201d in section 33B\u2014 1(c) necessarily refers to \u201cprior convictions,\u201d and not to the offenses committed by defendant in the present case. The State further asserts that the term \u201cconviction\u201d cannot apply to defendant\u2019s present offenses since a \u201cconviction\u201d requires imposition of a sentence. We reject both of these arguments.\nAs stated previously, section 33B \u2014 1(c) of the habitual criminal statute explicitly states that \u201c[a]ny convictions which result from or are connected with the same transaction, or result from offenses committed at the same time, shall be counted for the purposes of this Section as one conviction.\u201d 720 ILCS 5/33B \u2014 1(c) (West 2002). In construing the sections of the statute together as a whole, as we are bound to do, we note that the language in sections 33B \u2014 1(a) and (b) explicitly refers to a defendant\u2019s \u201c2 prior convictions.\u201d However, the words \u201c2 prior\u201d are noticeably absent in section 33B \u2014 1(c). Rather, that section expressly states that \u201c[a]ny convictions *** shall be counted for the purposes of this Section as one conviction.\u201d 720 ILCS 5/33B \u2014 1(c) (West 2002). When the legislature used certain words in one instance and different words in another, different results were intended and the terms cannot be interpreted as equivalents. Costello v. Governing Board of Lee County Special Education Ass\u2019n, 252 Ill. App. 3d 547, 558 (1993). Absent any reference to \u201c2 prior convictions,\u201d the plain language of section 33B \u2014 1(c) explicitly mandates that \u201c[a]ny convictions\u201d be counted as one conviction. Moreover, had the legislature intended that section 33B \u2014 1(c) apply only to a defendant\u2019s \u201c2 prior convictions,\u201d as posited by the State, it easily could have said so. However, the principles of statutory construction compel us to strictly construe criminal statutes in favor of the accused and not read into them exceptions, limitations, or conditions.\nNor are we persuaded by the State\u2019s argument that defendant\u2019s current offenses may not be considered \u201cconvictions\u201d for purposes of the statute. According to the State, \u201cconvictions\u201d encompass a finding of guilty and a sentence. Because defendant here was found guilty on eight counts, but never sentenced except pursuant to the habitual criminal statute, the State argues that the term \u201cconvictions\u201d cannot apply to the present offenses. We disagree.\nThe term \u201cconviction\u201d is defined as \u201ca judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.\u201d 720 ILCS 5/2 \u2014 5 (West 2002). According to the principles of statutory construction, material to either side of the disjunctive \u201cor\u201d must be viewed separately. People v. Franklin, 135 Ill. 2d 78, 106 (1990). Thus, the plain language of the definition itself indicates that \u201ca judgment of conviction\u201d and \u201ca sentence\u201d are separate and distinct. Franklin, 135 Ill. 2d at 106. As a result, defendant was \u201cconvicted\u201d of the present offenses when the trial court entered a judgment on the verdict of guilty, and section 33B \u2014 1(c) applies.\nThe State also contends that the trial court was required to sentence defendant to consecutive life sentences pursuant to section 5 \u2014 8\u20144(a) of the Unified Code of Corrections. Section 5 \u2014 8\u20144(a) provides:\n\u201cWhen multiple sentences of imprisonment are imposed on a defendant at the same time, *** the sentences shall run concurrently or consecutively as determined by the court. *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless:\n(i) one of the offenses for which defendant was convicted was *** a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or\n(ii) the defendant was convicted of a violation of Section 12 \u2014 13, 12 \u2014 14, or 12 \u2014 14.1 of the Criminal Code of 1961, ***\nin which event the court shall enter sentences to run consecutively.\u201d 730 ILCS 5/5 \u2014 8\u20144(a) (West 2002).\nBecause all of the offenses committed by defendant were Class X felonies, and because defendant inflicted severe bodily injury to both M.J. and D.J., it is the State\u2019s position that consecutive sentences in this case were mandatory. We disagree.\nIn imposing seven consecutive life sentences, the trial court indicated that it relied on section 5 \u2014 8\u20144(a) and People v. Curry, 178 Ill. 2d 509 (1997). However, the court\u2019s reliance on Curry was misplaced. In Curry, the court held that consecutive sentences are mandatory only for those offenses that trigger the application of section 5 \u2014 8\u20144(a). Curry, 178 Ill. 2d at 538. There, the defendant was convicted of one count of residential burglary, a nontriggering offense, and two counts of criminal sexual assault, a triggering offense. Curry, 178 Ill. 2d at 515. The court held that section 5 \u2014 8\u20144(a) must be construed so that any consecutive sentences imposed for triggering offenses be served prior to, and independent of, any sentences imposed for nontriggering offenses. Curry, 178 Ill. 2d at 539. However, Curry did not involve the habitual criminal statute and is therefore inapposite to the case at bar.\nAdditionally, we do not believe that section 5 \u2014 8\u20144(a) mandates consecutive sentences in this case. Section 5 \u2014 8\u20144(a) concerns the imposition of concurrent or consecutive terms when a defendant receives multiple sentences of imprisonment. Because the habitual criminal statute precludes defendant from receiving multiple sentences in this case, that section is not triggered. As we have already determined, section 33B \u2014 1(c) of the habitual criminal statute mandates that defendant\u2019s convictions be counted as \u201cone conviction\u201d since they were all connected with the same transaction. Because defendant can be sentenced for only \u201cone conviction,\u201d section 5 \u2014 8\u2014 4(a) does not apply Moreover, the court was required to adjudge defendant an habitual criminal, and the provisions of that statute govern. See Antunes v. Sookhakitch, 181 Ill. App. 3d 621, 628 (1989) (Illinois courts have long followed the principle of statutory construction that specific statutory provisions control over general statutory provisions).\nThe State\u2019s final argument is that defendant should not be sentenced for one conviction when he committed multiple offenses, all of which trigger the habitual criminal statute. While the legislative history is silent as to the language currently contained in section 33B \u2014 1(c) (the language was originally part of subsection (b)), our research has revealed that other state courts treat multiple, related convictions as one conviction for purposes of habitual offender enhancements. See Carter v. State, 686 N.E.2d 834, 839 (Ind. 1998) (in the event of simultaneous multiple-felony convictions and a finding of habitual offender status, trial courts must impose the resulting penalty enhancement upon only one of the convictions and must specify the conviction to be so enhanced); Hutchinson v. Dietrich, 183 W. Va. 25, 28, 393 S.E.2d 663, 666 (1990) (multiple convictions rendered on the same day should be treated as a single conviction for purposes of the habitual criminal statute, and multiple convictions can be enhanced under the statute only once for purposes of sentencing). It is the province of the legislature, and not this court, to declare and define conduct constituting a crime and to determine the nature and extent of a criminal sentence. Dunigan, 165 Ill. 2d at 244. Consequently, defendant\u2019s multiple convictions should be treated as one conviction for the purposes of sentencing under the habitual criminal statute. As such, we vacate the trial court\u2019s sentencing order imposing seven consecutive life sentences. Pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we reduce defendant\u2019s term to one life sentence.\nAs a final matter, defendant asks this court to vacate the following: (1) the conviction of home invasion (count I); (2) the conviction of and sentence for aggravated criminal sexual assault (count V); and (3) the conviction of and sentence for aggravated criminal sexual assault (count IV). The State confesses error as to all three counts. Under the facts of this particular case, we agree and vacate counts I, IV and V\nDefendant first requests that the conviction on count I be vacated under the one-act, one-crime doctrine. Defendant was convicted of two counts of home invasion. Count I alleged that defendant entered the dwelling place of M.J. and used force or threatened the use of force against her while armed with a dangerous weapon. Count II alleged that defendant entered the dwelling place of D.J. and intentionally caused him injury by slashing his throat. While the court merged counts I and II for the purposes of sentencing, defendant argues that th\u00e9 court should have vacated the conviction on count I as well. We agree. See People v. Cole, 172 Ill. 2d 85, 102 (1996) (a single entry will support only a single conviction, regardless of the number of occupants with respect to the home invasion statute). Accordingly, we vacate the conviction on count I.\nDefendant also requests us to vacate the conviction on count V under the one-act, one-crime doctrine. Defendant was convicted of two counts of aggravated criminal sexual assault against M.J. by forcibly placing his penis into her vagina. Count V alleged that defendant committed the assault while displaying a dangerous weapon, and count VII alleged that defendant inflicted bodily harm to M.J. while committing the assault. Defendant maintains that the conviction for count V was based on the same incident of penile penetration as alleged in count VII, thereby violating the one-act, one-crime rule set forth in King, 66 Ill. 2d at 566. We agree.\nMultiple convictions cannot be carved from the same physical act. King, 66 Ill. 2d at 566. Thus, defendant cannot be convicted of two counts of aggravated criminal sexual assault where there was only one act of sexual penetration. People v. Daniels, 331 Ill. App. 3d 380, 386 (2002). The State concedes that there was only one incident involving the penile penetration of M.J. Therefore, we vacate the conviction of aggravated criminal sexual assault based upon the display of a dangerous weapon. See Daniels, 331 Ill. App. 3d at 386-87 (between two convictions for aggravated criminal sexual assault predicated upon one act of sexual penetration, conviction that has as its aggravating factor the display of a dangerous weapon is less serious than conviction based upon causing bodily harm). Accordingly, defendant\u2019s conviction on count V is vacated.\nLast, defendant requests this court to vacate the conviction on count IV based upon People v. Crespo, 203 Ill. 2d 335 (2001) (supplemental opinion filed March 31, 2003). Defendant was convicted of two counts of aggravated criminal sexual assault based upon defendant placing his penis in M.J.\u2019s mouth by the use of force. Count IV alleged that defendant displayed a dangerous weapon while committing the offense, and count VI alleged that defendant caused M.J. bodily harm while committing the offense. Defendant does not dispute that there were multiple instances of forcible sex in this case. As a result, defendant is not arguing a violation of the one-act, one-crime rule set forth in King. Rather, defendant maintains that the conviction on count IV should be vacated because counts IV and VI did not distinguish the acts in a way that notified him that the State was seeking separate convictions rather than merely relating alternative theories of liability for one act.\nDefendant\u2019s argument is based on Crespo, a recent decision by our supreme court. In Crespo, the defendant stabbed the victim three times, and each stabbing could have been the basis of a separate conviction. Crespo, 203 Ill. 2d at 344. However, the counts as charged did not differentiate between the separate stab wounds, but merely offered different theories of criminal culpability. Crespo, 203 Ill. 2d at 342. In reiterating a defendant\u2019s fundamental right to be informed of the nature and cause of the criminal accusations against him so that he may prepare a defense, the court noted that the defendant would not have known until the cause was on appeal that the State considered each of the separate stabs to be a separate offense. Crespo, 203 Ill. 2d at 345. Accordingly, the court held that an indictment must indicate that the State intends to treat the conduct of a defendant as multiple acts in order for multiple convictions to be sustained. Crespo, 203 Ill. 2d at 345.\nIn a subsequent case, the Appellate Court, Fourth District, held that three counts of aggravated criminal sexual assault were sufficiently distinguished to sustain separate convictions and consecutive sentencing for each count. People v. Olivieri, 334 Ill. App. 3d 311, 318 (2002). However, the Olivieri majority noted that the defendant was notified prior to trial at a preliminary hearing that the State intended to seek multiple convictions. Olivieri, 334 Ill. App. 3d at 315.\nDefendant urges us to reject the reasoning in Olivieri and determine that counts IV and VI in this case did not distinguish the acts in a way that apprised him that separate convictions rather than alternative theories were intended by the State. The State confesses error on this point. We agree. Like Crespo and unlike Olivieri, defendant was not apprised, prior to trial, that the State intended to prosecute him for separate acts.\nFor the above reasons, we vacate defendant\u2019s convictions on counts I, IVJ and V Of defendant\u2019s remaining convictions, they are to be counted as \u201cone conviction\u201d for the purposes of sentencing under the habitual criminal statute. As a result, we reverse the trial court\u2019s judgment imposing seven consecutive life sentences and sentence defendant to one term of life imprisonment based upon the most serious conviction, of attempted first degree murder.\nFor the foregoing reasons, we affirm in part, reverse in part, and vacate in part the judgment of the circuit court of Kane County.\nAffirmed in part, reversed in part, and vacated in part.", "type": "majority", "author": "JUSTICE McLAREN" }, { "text": "JUSTICE GILLERAN JOHNSON,\nspecially concurring:\nAlthough I agree with the result reached by my colleague, I write separately to explain my view that, under the unique facts of this case, the defendant\u2019s conviction of aggravated criminal sexual assault under count IV of the indictment should be vacated.\nIn Crespo, our supreme court held that in order to sustain multiple convictions, the State must inform the defendant that it intends to treat his or her conduct as separate acts. Crespo, 203 Ill. 2d at 344. Although the Crespo court stated that the notice to the defendant should be through the indictments, it did not foreclose notice in some other manner prior to trial. Crespo, 203 Ill. 2d at 343. Furthermore, the Crespo court placed great emphasis on presenting separate acts to the jury. Crespo, 203 Ill. 2d at 344.\nIn this case, the State conceded, both in its appellate brief and during oral argument, that the defendant here was not sufficiently informed that the State was charging him with two separate acts of forcible oral sex. In the State\u2019s view, it was not unreasonable for the defendant to believe that he was being charged with the same crime, based on alternate theories. In making its confession of error, the State admits that it did not properly argue separate acts to the jury and concedes that the trial court did not sufficiently instruct the jury that the charges were based on separate acts. I agree. The defendant here was charged with two counts of forcible oral sex, under counts IV and V of the indictment. However, during its closing argument, the State failed to explain that the defendant\u2019s acts were separate. Instead of arguing that the defendant committed two separate acts of forcible oral sex, the State argued that it was proceeding on \u201ctwo different theories.\u201d The State further argued that \u201cthe defendant committed an act of sexual penetration, both by entering [the victim\u2019s] mouth with his penis, as well as by entering her vagina with his penis.\u201d Finally, the trial court instructed the jury as if the State were proceeding on alternate theories. The trial court explained to the jury that the defendant was charged \u201cin different ways\u201d with the offense of aggravated sexual assault.\nIn conclusion, I believe that the State did not properly represent to the jury that the defendant was being charged with two separate acts of forcible oral sex. Furthermore, the trial court did not sufficiently instruct the jury that the defendant was being charged with separate acts of forcible oral sex. Accordingly, as the lesser count of the two, I agree with my colleague that the defendant\u2019s conviction of aggravated criminal sexual assault based on count IV of the indictment must be vacated.", "type": "concurrence", "author": "JUSTICE GILLERAN JOHNSON," }, { "text": "JUSTICE BOWMAN,\ndissenting in part:\nI respectfully dissent. Specifically, I -disagree with the conclusion that defendant\u2019s conviction of aggravated criminal sexual assault (count IV) should be vacated. With respect to the indictment, I believe that defendant was on notice of the need to defend against multiple charges of aggravated criminal sexual assault. In all, defendant was charged with four counts of aggravated criminal sexual assault. While two of the counts alleged vaginal penetration, the other two alleged oral penetration. Count IV alleged that defendant, while displaying a knife, forcibly placed his penis in M.J.\u2019s mouth. Count VI alleged that defendant caused her bodily harm by forcibly placing his penis in her mouth. Unlike the charges in Crespo and Olivieri, the aggravated criminal sexual assault charges here specifically referenced the sexual penetration. Based on these facts, it is my opinion that the charging instrument was sufficiently specific to put defendant on notice that he was being charged with two separate offenses qf forcible oral sex. Consequently, I believe that the indictment in this case satisfied Crespo, and I disagree with Justice McLaren\u2019s conclusion that defendant here did not have notice prior to trial that he was being charged with multiple offenses.\nIn addition, I do not believe that a detailed notice of a defendant\u2019s specific acts prior to trial is the only manner in which to satisfy Crespo\u2019s due process requirement. Justice McLaren appears to place great weight on the preliminary hearing in Olivieri to support his position that Crespo requires that a defendant have notice prior to trial that the State is seeking separate convictions. In his view, there was no preliminary hearing in this case and Olivieri is therefore distinguishable on that basis alone. However, I believe that this interpretation ignores the analysis in both Crespo and Olivieri discussing the State\u2019s treatment of the crime at trial.\nIn my opinion, Crespo allows consideration of the State\u2019s treatment of the crime at trial. In Crespo, it is clear that the court based its decision on the indictments as well as the way in which the crime was argued to the jury. Crespo, 203 Ill. 2d at 344. Similarly, in Olivieri, the court considered the charging instruments and the preliminary hearing, as well as the State\u2019s presentation of evidence to the jury, in finding that the defendant had fair notice that the State was prosecuting for three separate acts. Accordingly, in determining whether a defendant was informed of the nature and cause of the criminal accusations against him, it is appropriate to consider the indictments, as well as the State\u2019s treatment of the crime both before and during trial.\nHere, I believe that the State\u2019s treatment of the crime at trial informed defendant that he was being prosecuted for separate acts. First, in the opening statement, the State stated that defendant \u201cpull[ed] out his penis and he force[d] [M.J.] to give him oral sex.\u201d The State continued that defendant took M.J. to the kitchen, where he grabbed two beers, and then returned to the bedroom. \u201cAnd then he goes to [M.J.] again and says, make me come, and again he takes out his penis and again forces it into [M.J.\u2019s] mouth. But this time she throws up and she throws up all over his shorts.\u201d\nSecond, in its closing argument, the State treated defendant\u2019s conduct as separate acts. For example, the prosecutor stated the following:\n\u201cThe last offenses I will talk about are those of Aggravated Criminal Sexual Assault, and once again, there are four counts of Aggravated Criminal Sexual Assault; and in relation to those four counts, there are two different theories and I will also talk about the verdict forms that go with the theories.\nClearly \u2014 I talked about this already and I apologize if I keep repeating myself \u2014 threats were issued from the point that he put the cord around [D.J.\u2019s] wrists and put the pillow case over his head. That\u2019s when he began demanding [M.J.] to perform oral sex on him, and that\u2019s when the defendant began saying, I am going to kill you if you don\u2019t \u2014 kill your husband if you don\u2019t do it, I am going to kill you, I am going to kill your children, I am going to have sex with your children.\nIn this case there are two different types of sexual penetration that are charged: one, penis to mouth; and, two, penis to vagina. The evidence here is overwhelming that the defendant, while displaying the knife, repeatedly forced [M. J.] to perform oral sex on him. She started to cry initially. That\u2019s when he started to threaten. He, numerous times, placed his penis in her mouth; even on one occasion causing her to throw up, causing her to vomit in his shorts. The evidence is clear and overwhelming that the defendant committed acts of sexual penetration, in that he placed his penis in her mouth while displaying a weapon.\u201d (Emphasis added.)\nIn support of her position, Justice Gilleran Johnson isolates individual comments made by the State that are not reflective of the overall treatment of defendant\u2019s conduct at trial. When viewed in its entirety, the State\u2019s closing argument clearly treated defendant\u2019s conduct as separate acts.\nFinally, the jury was carefully instructed by the trial court regarding all four counts of aggravated criminal sexual assault. Specifically, the verdict form submitted to the jury with respect to counts IV and VI stated as follows:\n\u201cWe, the jury, find the [defendant] not guilty of Aggravated Criminal Sexual Assault, displaying dangerous weapon and placed penis in the mouth of [M.J.]; we, the jury, find the [defendant] guilty of Aggravated Criminal Sexual Assault, displaying dangerous weapon and placed penis in mouth of [M.J.],\nWe, the jury find the [defendant] not guilty of Aggravated Criminal Sexual Assault, caused bodily harm to [M.J] and placed penis in mouth of [M.J.]; and we, the jury, find the [defendant] guilty of Aggravated Criminal Sexual Assault, caused bodily harm to [M.J.] and placed penis in mouth of [M.J.].\u201d\nThus, I disagree with Justice Gilleran Johnson\u2019s conclusion that the trial court did not sufficiently instruct the jury that defendant was being charged with two separate acts of forcible oral sex. Moreover, as mentioned previously, isolating individual statements made by the State or the trial court results in an inaccurate view of the overall treatment of defendant\u2019s conduct at trial.\nIn sum, both counts IV and VI specifically referenced the sexual penetration, and the State presented and argued the case to the jury as separate acts of forcible oral sex. For these reasons, I believe that defendant was informed that the acts were being treated as separate offenses, and I would affirm the convictions on both counts.", "type": "dissent", "author": "JUSTICE BOWMAN," } ], "attorneys": [ "G. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Meg Gorecki, State\u2019s Attorney, of St. Charles (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and John R. Roe, of Chicago, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN PALMER, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 02\u20140592\nOpinion filed March 26, 2004.\nGILLERAN JOHNSON, J., specially concurring.\nBOWMAN, J., dissenting in part.\nG. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMeg Gorecki, State\u2019s Attorney, of St. Charles (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and John R. Roe, of Chicago, for the People." }, "file_name": "0942-01", "first_page_order": 960, "last_page_order": 975 }