{ "id": 5433391, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOBIAS L. DRYDEN, Defendant-Appellant", "name_abbreviation": "People v. Dryden", "decision_date": "2004-06-08", "docket_number": "No. 2-02-0999", "first_page": "115", "last_page": "126", "citations": [ { "type": "official", "cite": "349 Ill. App. 3d 115" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "197 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2484660 ], "year": 1990, "pin_cites": [ { "page": "918-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0907-01" ] }, { "cite": "172 Ill. 2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55994 ], "year": 1996, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0085-01" ] }, { "cite": "181 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821402 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "545" }, { "page": "545" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0541-01" ] }, { "cite": "169 Ill. 2d 183", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909165 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "186" }, { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0183-01" ] }, { "cite": "344 Ill. App. 3d 663", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3776937 ], "year": 2003, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0663-01" ] }, { "cite": "206 Ill. 2d 503", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1578268 ], "weight": 10, "year": 2003, "pin_cites": [ { "page": "524" }, { "page": "524-25" }, { "page": "525-26" }, { "page": "526" }, { "page": "525-26" }, { "page": "527" }, { "page": "527" }, { "page": "530" }, { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/206/0503-01" ] }, { "cite": "343 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3718257 ], "year": 2003, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0331-01" ] }, { "cite": "199 Ill. 2d 440", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58947 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "452" }, { "page": "454" }, { "page": "454" }, { "page": "454" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0440-01" ] }, { "cite": "199 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58927 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "394" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0392-01" ] }, { "cite": "339 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468995 ], "year": 2003, "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0792-01" ] }, { "cite": "193 Ill. 2d 413", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963706 ], "year": 2000, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0413-01" ] }, { "cite": "149 Ill. 2d 288", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599993 ], "year": 1992, "pin_cites": [ { "page": "297", "parenthetical": "holding that \"either intent, knowledge or recklessness is an element of robbery even though the statutory definition of robbery does not expressly set forth a mental state\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0288-01" ] }, { "cite": "46 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899528 ], "year": 1970, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0348-01" ] }, { "cite": "299 Ill. App. 3d 951", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221424 ], "year": 1998, "pin_cites": [ { "page": "957" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0951-01" ] }, { "cite": "272 Ill. App. 3d 178", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 251751 ], "year": 1995, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0178-01" ] }, { "cite": "312 Ill. App. 3d 428", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411672 ], "year": 2000, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0428-01" ] }, { "cite": "294 Ill. App. 3d 962", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35407 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "973" }, { "page": "973" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0962-01" ] }, { "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" ] } ], "analysis": { "cardinality": 947, "char_count": 24830, "ocr_confidence": 0.762, "pagerank": { "raw": 9.613656678499473e-08, "percentile": 0.526765653132673 }, "sha256": "d513c05b3b1cd8327e538d94a03ca814750e966ac182d1c0d6b77d4b3a136d00", "simhash": "1:bb80eb39f10656b1", "word_count": 4135 }, "last_updated": "2023-07-14T17:18:36.100393+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McLAREN and KAPALA, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOBIAS L. DRYDEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Kane County, defendant, Tobias L. Dryden, was convicted of two counts of home invasion (720 ILCS 5/12 \u2014 11 (a)(3) (West 2000)) and one count of unlawful use of a weapon by a felon (720 ILCS 5/24 \u2014 1.1 (West 2000)). He was acquitted of two counts of armed robbery. 720 ILCS 5/18 \u2014 2 (West 2000). Defendant was sentenced to 21 years\u2019 imprisonment. His sentence included a 15-year enhancement, which was triggered by his possession of a firearm during the commission of the home invasion. See 720 ILCS 5/12 \u2014 11(a)(3), (c) (West 2000). Defendant now appeals, raising three issues. First, he asserts that he was not proven guilty of home invasion beyond a reasonable doubt. Second, he contends that section 12 \u2014 11(a)(3) and section 12 \u2014 11(c) of the Criminal Code of 1961 (Code) (720 ILCS 5/12 \u2014 11(a)(3), (c) (West 2000)), which together mandated the addition of 15 years to his sentence, violate the Illinois Constitution. Finally, he argues that one of his convictions of home invasion must be vacated pursuant to the one-act, one-crime rule (see People v. King, 66 Ill. 2d 551, 566 (1977)). We agree with defendant regarding his latter two contentions. Accordingly, we vacate one of defendant\u2019s home-invasion convictions and we reverse his sentence and remand for a new sentencing hearing.\nI. BACKGROUND\nDefendant\u2019s two convictions of home invasion stem from an incident occurring on September 23, 2001. Defendant testified that he went to the apartment of Isaac Gonzalez to purchase marijuana. He knocked on the door, and Raechel Peters, Gonzalez\u2019s girlfriend, answered. Defendant and Gonzalez went to the kitchen. Defendant added that he was nervous because he owed Gonzalez money. Defendant told Gonzalez how much marijuana he wanted. Gonzalez told defendant to show him his money. Defendant showed Gonzalez a $100 bill. Gonzalez gave defendant $20 worth of marijuana and attempted to keep the rest of the money. Defendant grabbed the $100 bill and told Gonzalez that he would settle his debt later. Defendant stated that he then attempted to leave the apartment. Gonzalez said something to a man in the living room, and they followed defendant out of the apartment.\nRaechel Peters testified that, on September 23, 2001, she was-watching television in her and Gonzalez\u2019s apartment. Someone knocked at the door, and Gonzalez answered. Gonzalez admitted defendant into the apartment. After defendant entered, Peters observed him do something to the door lock. Defendant then followed Gonzalez into the kitchen. After about two minutes, defendant came out of the kitchen. Peters stated that two men then entered the apartment. One of them grabbed Gonzalez by the neck and held a gun to him. Defendant was holding a silver gun. The man holding Gonzalez patted down Gonzalez\u2019s pockets, and Gonzalez stated that he had already given everything to defendant. The man attempted to pull Gonzalez into the hallway outside the apartment, but Gonzalez managed to close the door as defendant and the two other men left. Travis Young and Linda Paredes were also present in the apartment. They confirmed portions of Peters\u2019 testimony, with some minor discrepancies.\nFinally, Gonzalez testified. He stated that he, Paredes, Young, and Peters were watching wrestling when he heard a knock at the door. Gonzalez answered and admitted defendant into the apartment. Gonzalez and defendant went to the kitchen. Gonzalez testified that he looked away briefly and when he looked back, defendant had a gun. Gonzalez stated that he tried to give some money to defendant. Defendant went to the apartment\u2019s door, opened it, and two other men entered. One of the men grabbed Gonzalez by the shirt and pointed a gun at his stomach. Gonzalez gave them some additional money. The men then tried to drag Gonzalez into the hall. As soon as they got o\u00fat in the hall, defendant and one of the men ran away. Gonzalez managed to break free from the third man and ran back inside.\nThe jury convicted defendant of two counts of home invasion (720 ILCS 5/12 \u2014 11(a)(3) (West 2000)) and one count of unlawful use of a weapon by a felon (720 ILCS 5/24 \u2014 1.1 (West 2000)). The trial court initially sentenced defendant to 11 years\u2019 imprisonment. The State moved to vacate the sentence because it did not include a 15-year enhancement as mandated by sections 12 \u2014 11(a)(3) and 12 \u2014 11(c) of the Code. The trial court granted the motion and imposed a 21-year sentence. Defendant now appeals.\nII. SUFFICIENCY OF THE EVIDENCE\nDefendant first contends that he was not proven guilty beyond a reasonable doubt of home invasion. Defendant points out that, to sustain a conviction of home invasion, the State must prove that he entered the victim\u2019s dwelling \u201cwithout authority.\u201d 720 ILCS 5/12\u2014 11(a) (West 2000). The evidence showed that the victim admitted defendant into his dwelling. Defendant recognizes that the limited-authority doctrine provides an exception where, though he was admitted into the dwelling, he may still be convicted of home invasion. Specifically, the doctrine holds that where a defendant possessed a criminal intent at the time of the entry, the victim\u2019s consent to the entry is vitiated on the theory that, had the victim known the defendant\u2019s true intentions, the victim would not have allowed the entry. See, e.g., People v. Hill, 294 Ill. App. 3d 962, 973 (1998). Defendant argues that the State failed to prove that he possessed a criminal intent at the time the victim admitted him into the victim\u2019s dwelling. We disagree.\nIn assessing a challenge to the sufficiency of the evidence, we must determine \u201cwhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.\u201d People v. Young, 312 Ill. App. 3d 428, 430 (2000). A criminal conviction will not be set aside unless the evidence is so unsatisfactory as to create a reasonable doubt regarding the defendant\u2019s guilt. People v. O\u2019Neill, 272 Ill. App. 3d 178, 180 (1995). Viewing the record in the light most favorable to the State, defendant has failed to meet this standard.\nDefendant challenges the jury\u2019s verdict as it pertains to whether he possessed a criminal intent when he entered the victim\u2019s home. Thus, the relevant inquiry focuses upon whether there is evidence in the record from which the jury could draw such a conclusion. Such evidence does exist. Two co-perpetrators initially waited in the hall while defendant entered. The victim\u2019s girlfriend testified that she saw defendant turn around and play with the lock on the door after he entered. Defendant\u2019s cohorts entered the apartment after defendant had been inside for a short time. From this evidence, the jury could reasonably conclude that the crime had been planned in advance. Particularly relevant here is the testimony that defendant did something with the lock on the door, from which the jury could infer that he insured that the door was unlocked so his accomplices could enter. Obviously, if the crime was planned before defendant entered the dwelling, defendant possessed the intent to commit it at the time of the entry.\nDefendant also contends that the verdict cannot stand because, although the jury found him guilty of home invasion, it acquitted him of two counts of armed robbery (720 ILCS 5/18\u20142 (West 2000)). Defendant contends that these acquittals amount to a finding that he did not intend to rob the victim. Defendant does not use the term, but, in essence, he is advancing an inconsistent-verdict argument. See, e.g., People v. Rhoden, 299 Ill. App. 3d 951, 957 (1998). However, verdicts of acquittal and conviction are not inconsistent where the crimes at issue involve different elements. People v. Hairston, 46 Ill. 2d 348, 362 (1970). With respect to a charge of home invasion, the limited-authority doctrine requires that defendant \u201cpossessed the intent to perform a criminal act *** at the time of entry.\u201d Hill, 294 Ill. App. 3d at 973. A robbery charge requires the State to prove a mental state of at least recklessness. People v. Jones, 149 Ill. 2d 288, 297 (1992) (holding that \u201ceither intent, knowledge or recklessness is an element of robbery even though the statutory definition of robbery does not expressly set forth a mental state\u201d). In fact, the armed-robbery indictment charged that defendant knowingly took the victim\u2019s property. Because two different mental states were at issue in the home-invasion and armed-robbery counts, defendant cannot prevail on this argument.\nTherefore, we cannot say that the evidence regarding defendant\u2019s intent at the time of the entry is so unsatisfactory as to create a reasonable doubt of his guilt. Defendant was proven guilty beyond a reasonable doubt, and the judgment of the trial court is affirmed on this point. As we explain below, however, one of the convictions of home invasion must be vacated pursuant to the one-act, one-crime rule.\nIII. THE CONSTITUTIONALITY OF THE 15-YEAR SENTENCE ENHANCEMENT\nDefendant next argues that sections 12 \u2014 11(a)(3) and 12 \u2014 11(c) of the Code (720 ILCS 5/12 \u2014 11(a)(3), (c) (West 2000)) violate the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 11). Section 12 \u2014 11(a)(3) applies when, during the commission of a home invasion, a defendant either threatens or uses force and possesses a firearm. 720 ILCS 5/12 \u2014 11(a)(3) (West 2000). Section 12 \u2014 11(c) mandates a 15-year sentence enhancement under such circumstances. 720 ILCS 5/12 \u2014 11(c) (West 2000). Defendant contends that, although the punishment for home invasion while possessing a firearm is more severe than the punishment for aggravated battery with a firearm (720 ILCS 5/12 \u2014 4.2(a)(1) (West 2000)), the latter crime requires that the firearm actually be discharged and an injury result, whereas the former crime requires only that a person possess a firearm and either threaten to use or actually use force. Aggravated battery with a firearm is a Class X felony, carrying a term of 6 to 30 years. 720 ILCS 5/12 \u2014 4.2(a)(1)(b) (West 2000); 730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2000). Home invasion as defined by section 12 \u2014 11(a)(3) mandates a sentence of 21 to 45 years, including the 15-year sentence enhancement. 720 ILCS 5/12 \u2014 11(a)(3), (c) (West 2000); 730 ILCS 5/5 \u2014 8\u2014 1(a)(3) (West 2000). The constitutionality of a statute is a matter subject to de novo review. People v. Malchow, 193 Ill. 2d 413, 418 (2000). Additionally, statutes are presumed to be constitutional; hence, the party challenging a statute bears the burden of demonstrating its unconstitutionality. People v. Grant, 339 Ill. App. 3d 792, 803 (2003). If a statute reasonably can be construed in a manner such that it is constitutional, a court has a duty to do so. People v. Walden, 199 Ill. 2d 392, 394 (2002).\nThe 15-year enhancement that defendant challenges was created when the legislature enacted Public Act 91 \u2014 404 (Pub. Act 91\u2014 404, eff. January 1, 2000 (amending 720 ILCS 5/12 \u2014 11(a)(3), (c) (West 2000))). This act added section 12 \u2014 11(a)(3) to the home-invasion statute, which specifies that a person commits home invasion when a person enters or remains without authorization in a dwelling place, knowing or having reason to know someone is present and \u201c[w]hile armed with a firearm uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs.\u201d 720 ILCS 5/12 \u2014 11(a)(3) (West 2000). It also modified section 12 \u2014 11(c) to read, in relevant part, \u201cA violation of subsection (a)(3) is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court.\u201d 720 ILCS 5/12\u2014 11(c) (West 2000).\nThe proportionate penalties clause provides that \u201c[a] 11 penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.\u201d Ill. Const. 1970, art. I, \u00a7 11. Our supreme court has articulated three ways in which a violation of this clause could occur:\n\u201cFirst, a penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. Second, a penalty is invalid under the proportionate penalties clause where similar offenses are compared, and conduct that creates a less serious threat to the public health and safety is punished more severely. Third, there is a violation of the proportionate penalties clause when identical offenses are given different sentences.\u201d People v. Hill, 199 Ill. 2d 440, 452 (2002).\nDefendant bases his argument on the second prong of the test.\nDetermining whether the proportionate penalties clause has been violated based on the second prong requires a two-step inquiry. Hill, 199 Ill. 2d at 454. First, we must consider whether the chailenged statute and the statute to which it is being compared share a common purpose. Hill, 199 Ill. 2d at 454. When the statutes were enacted for two different purposes, it is presumed that the legislature weighed different factors in setting punishments, and we will defer to its judgment. People v. Moore, 343 Ill. App. 3d 331, 344 (2003). If the purpose is similar, then we must consider whether the offense with the harsher penalty is, in fact, more serious than the offense with the lesser penalty. In determining whether one offense is more serious than another, the degree of harm is not the sole consideration. Hill, 199 Ill. 2d at 454. Additional factors, such as the frequency of the commission of the offense, the risk of bodily harm, or the need to stem an increase in the commission of the crime, are also relevant. Hill, 199 Ill. 2d at 454.\nThus, we must begin our inquiry with a comparison of the purposes of the statutes defining aggravated battery with a firearm (720 ILCS 5/12 \u2014 4.2(a)(1) (West 2000)) and home invasion while possessing a firearm, the offense of which defendant was convicted. We find this case controlled by People v. Moss, 206 Ill. 2d 503 (2003), a recent Illinois Supreme Court case that held unconstitutional several sentencing enhancements enacted in Public Act 91 \u2014 404. In Moss, the supreme court addressed the constitutionality of such enhancements pertaining to armed robbery (720 ILCS 5/18 \u2014 2 (West 2000)), aggravated kidnaping (720 ILCS 5/10 \u2014 2 (West 2000)), and aggravated vehicular hijacking (720 ILCS 5/18 \u2014 4 (West 2000)). The 15-year enhancement at issue in this case was also enacted in Public Act 91\u2014 404 and is virtually identical to some of the enhancements at issue in Moss.\nThe State attempts to avoid the effect of Moss, first asserting that the supreme court expressly limited its holding to the statutes before it. We find no such limiting language in the supreme court\u2019s opinion, and, in any event, we see no reason that the rationale of Moss should not apply to the instant case.\nThe State argues that the statutes defining home invasion and aggravated battery with a firearm do not share a common purpose. The State contends that the purpose of the home-invasion statute \u201cis to protect people in their homes from intruders carrying firearms.\u201d The aggravated-battery-with-a-firearm statute, the State explains, exists to \u201cprevent the knowing and intentional discharge of a firearm which causes injury to the victim.\u201d This argument is foreclosed by Moss.\nIn that case, the State advanced a similar argument, contending that the proper analysis should focus upon the underlying offenses, such as armed robbery, rather than the amendments that created the sentencing enhancements. Moss, 206 Ill. 2d at 524. The State continued:\n\u201c[Tjhe purpose of the armed robbery with a firearm statute, for example, \u2018is to deter/punish the unauthorized, forcible taking of another\u2019s property.\u2019 Similarly, the purpose of the aggravated vehicular hijacking statute, the State argues, is \u2018to deter/punish the unauthorized taking of another\u2019s motor vehicle.\u2019 Noting that these offenses \u2018do[ ] not necessarily involve firearms,\u2019 the State maintains that the purposes of these statutes differ from those of the aggravated battery with a firearm and aggravated discharge of a firearm statutes, which focus on the use of firearms. Because of this difference in purpose, the State argues that comparative proportionality review is inappropriate here, and the circuit court should not have proceeded to the second stage of this review.\u201d Moss, 206 Ill. 2d at 524-25.\nThe supreme court disagreed. It noted that the legislature expressly set forth the purpose of Public Act 91 \u2014 404, which is to \u201cdeter the use of firearms in the commission of a felony offense.\u201d 720 ILCS 5/33A\u2014 1(b)(1) (West 2000). Moreover, the court observed that in People v. Walden, 199 Ill. 2d 392, 396 (2002), it had already held that the purpose of the amended version of the armed-robbery statute was the same as the purpose of Public Act 91 \u2014 404 as articulated by the legislature. Moss, 206 Ill. 2d at 525-26. Accordingly, the Moss court rejected the State\u2019s contention that the purpose of the amended statutes at issue in that case should be determined by looking to the underlying offenses. Moss, 206 Ill. 2d at 526. The State provides us with no persuasive reason that we should not apply the same logic in this case and determine the purpose of section 12 \u2014 11(a)(3) by reference to the legislature\u2019s plain statement regarding the purpose of Public Act 91 \u2014 404 (see 720 ILCS 5/33A \u2014 1(b)(1) (West 2000)). Accordingly, we conclude that the purpose of section 12 \u2014 11(a)(3) is \u201cto deter the use of firearms in the commission of a felony offense\u201d (720 ILCS 5/33A \u2014 1(b)(1) (West 2000)) and that this purpose is sufficiently similar to the purpose of the aggravated-battery-with-a-firearm statute to allow for a comparison. See Moss, 206 Ill. 2d at 525-26.\nThe State also argues that \u201chome invasion with a firearm is not a less serious offense that is punished more severely than aggravated battery with a firearm.\u201d This follows, according to the State, because home invasion is a serious offense in itself. In Moss, the supreme court considered whether the offenses amended by Public Act 91 \u2014 404 are actually more serious than comparable offenses because \u201cthey involve elements in addition to firearm conduct.\u201d Moss, 206 Ill. 2d at 527. The court noted that, \u201c[ajrmed robbery with a firearm, for example, requires the possession of a firearm while committing the offense of robbery.\u201d Moss, 206 Ill. 2d at 527. Ultimately, the supreme court rejected this argument, stating:\n\u201cWe agree with the circuit court that the additional elements in aggravated battery with a firearm (injury resulting from the intentional discharge of a firearm) and aggravated discharge of a .firearm (discharge of a firearm in the direction of another person) render these offenses a greater \u2018threat to the public health and safety\u2019 [citations] than the corresponding Public Act 91 \u2014 404 offenses, which, with respect to the firearm, require only its possession or its discharge.\u201d Moss, 206 Ill. 2d at 530.\nThe supreme court also rejected the notion that it defer to the legislature\u2019s judgment that the offenses amended by Public Act 91\u2014 404 are more serious, despite such deference being the norm. Moss, 206 Ill. 2d at 530. Indeed, if we were to defer to the legislature on all such judgments, there would be no effective judicial review of a claimed proportionate penalties clause violation.\nThus, the State\u2019s argument that the offense at issue in the present case is more serious because it involves a home invasion in addition to the possession of a firearm is ill taken. Such reasoning has already been rejected by Moss. We agree with the State that the invasion of a home is a serious matter; however, the offenses at issue in Moss were also of a serious nature. In sum, we have little difficulty concluding that shooting someone with a firearm is more serious than merely possessing a firearm, regardless of the circumstances under which the firearm is possessed.\nFinally, the conduct proscribed by section 12 \u2014 11(a)(3) is punished more harshly than aggravated battery with a firearm. The former, including the 15-year enhancement, carries a sentence of 21 to 45 years (720 ILCS 5/12 \u2014 11(a)(3), (c) (West 2000); 730 ILCS 5/5 \u2014 8\u2014 1(a)(3) (West 2000)); the latter mandates only 6 to 30 years\u2019 imprisonment (720 ILCS 5/12 \u2014 4.2(a)(1), (b) (West 2000); 730 ILCS 5/5 \u2014 8\u2014 1(a)(3) (West 2000)). Therefore, the proportionate penalties clause has been violated. Ill. Const. 1970, art. I, \u00a7 11. We vacate defendant\u2019s sentence and remand this cause for a new sentencing hearing.\nIII. THE ONE-ACT, ONE-CRIME RULE\nDefendant\u2019s final contention is that his multiple convictions of home invasion violate the one-act, one-crime rule. See People v. King, 66 Ill. 2d 551, 566 (1977). We review this claim de novo. People v. Carter, 344 Ill. App. 3d 663, 667 (2003). Generally, only one offense may be carved from one physical act. King, 66 Ill. 2d at 566. To determine whether the rule has been violated, we must first inquire as to whether defendant\u2019s conduct constituted a single act. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). The next step is to determine whether any of the offenses of which defendant stands convicted are lesser included offenses. Rodriguez, 169 Ill. 2d at 186. If either step yields an affirmative answer, the conviction in question must be vacated. Rodriguez, 169 Ill. 2d at 186. In the instant case, the first step is dispositive.\nBefore proceeding, we address the State\u2019s claim that defendant has waived this issue by failing to include it in his posttrial motion. Defendant contends that we should review it as plain error. In People v. Hicks, 181 Ill. 2d 541, 545 (1998), the supreme court noted that \u201c[t]he imposition of an unauthorized sentence affects substantial rights.\u201d Plain-error review extends to such matters. Hicks, 181 Ill. 2d at 545. Accordingly, we will review defendant\u2019s claim of error.\nDefendant contends that he could be convicted of only one count of home invasion because he made only one entry into the dwelling. The State initially points out that one of the home-invasion counts of which defendant was convicted (count III) alleged that defendant used force, while the other (count IV) alleged that he threatened the use of force. This observation is irrelevant. In People v. Cole, 172 Ill. 2d 85, 102 (1996), the supreme court flatly held that \u201ca single entry will support only a single conviction\u201d of home invasion even though the defendant inflicted harm on two occupants of a dwelling. In the present case, defendant made only one entry, and the rule set forth in Cole bars multiple convictions even though separate harms occurred following that single entry.\nThe State argues that, in addition to his own entry, defendant is accountable for the entry of his accomplices. In Hicks, 181 Ill. 2d at 544, the supreme court held that the defendant could be convicted of only one count of home invasion where he and an accomplice simultaneously entered the victim\u2019s dwelling. See also People v. Brown, 197 Ill. App. 3d 907, 918-19 (1990). That defendant here entered shortly before his cohorts, rather than all three simultaneously, is of no moment. It appears obvious that all of the entries were part of a single course of conduct designed to rob the victim; in other words, there was one crime. Allowing a defendant to be convicted of two offenses where the entries of multiple accomplices were temporally proximate but not where the entries were actually simultaneous would create an incredibly arbitrary rule. Accordingly, we reject the State\u2019s argument based on defendant\u2019s accountability for his accomplices. Given Cole and Hicks, defendant\u2019s multiple convictions cannot stand. We therefore vacate the conviction based on count IV of the indictment.\nIV CONCLUSION\nIn light of the foregoing, we affirm defendant\u2019s convictions of home invasion on count III and unlawful use of a weapon by a felon; however, we vacate his home-invasion conviction on count IV and his sentence as well. The cause is remanded so that a new sentencing hearing can be held.\nAffirmed in part and vacated in part; cause remanded.\nMcLAREN and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE GROMETER" } ], "attorneys": [ "Charles M. Schiedel and Allen H. Andrews, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Meg Gorecki, State\u2019s Attorney, of St. Charles (Martin E Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Kristine A. Karlin, of Mt. Prospect, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOBIAS L. DRYDEN, Defendant-Appellant.\nSecond District\nNo. 2\u201402\u20140999\nOpinion filed June 8, 2004.\nCharles M. Schiedel and Allen H. Andrews, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nMeg Gorecki, State\u2019s Attorney, of St. Charles (Martin E Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Kristine A. Karlin, of Mt. Prospect, for the People." }, "file_name": "0115-01", "first_page_order": 133, "last_page_order": 144 }