{ "id": 4304291, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON N. STRAWBRIDGE, Defendant-Appellant", "name_abbreviation": "People v. Strawbridge", "decision_date": "2010-09-09", "docket_number": "No. 2\u201408\u20140701", "first_page": "460", "last_page": "473", "citations": [ { "type": "official", "cite": "404 Ill. App. 3d 460" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "361 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4258994 ], "year": 2005, "pin_cites": [ { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0901-01" ] }, { "cite": "373 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 35378 ], "year": 1998, "pin_cites": [ { "page": "820", "parenthetical": "making irrelevant defendant's claim that the victim did not testify that she was actually afraid of defendant in this case" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0809-01" ] }, { "cite": "276 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927656 ], "year": 1995, "pin_cites": [ { "page": "341-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0330-01" ] }, { "cite": "354 Ill. App. 3d 312", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3216772 ], "year": 2004, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0312-01" ] }, { "cite": "392 Ill. App. 3d 277", "category": "reporters:state", "reporter": "Ill. 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JASON N. STRAWBRIDGE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HUDSON\ndelivered the opinion of the court:\nDefendant, Jason N. Strawbridge, was convicted of four counts of predatory criminal sexual assault of a child (720 ILCS 5/12 \u2014 14.1(a) (West 2000)) and one count of aggravated stalking (720 ILCS 5/12\u2014 7.4(a)(3) (West 2000)), following a jury trial in the circuit court of Winnebago County. He was sentenced to 12 years\u2019 imprisonment on each of the predatory criminal sexual assault counts (subject to the truth-in-sentencing statute (730 ILCS 5/3 \u2014 6\u20143 (West 2008)) and 2 years\u2019 imprisonment on the stalking count. All sentences run consecutively. Defendant now appeals, raising a number of issues. He first argues that one of his convictions of predatory criminal sexual assault must be vacated in accordance with one-act, one-crime principles. Second, defendant contends that he was not proven guilty of aggravated stalking. Third, he complains of the trial court\u2019s refusal to discharge a juror who was acquainted with the victim. Fourth, defendant alleges error in the trial court\u2019s decision to permit the State to introduce certain pornographic pictures into evidence. Fifth, he asserts that the sentences for two of his convictions of predatory criminal sexual assault must be reduced to nine years, as he had previously been sentenced on these counts before this court vacated an earlier guilty plea. We agree with defendant\u2019s first and fifth contentions; therefore, we vacate his conviction on the first count of predatory criminal sexual assault, reduce his sentence to nine years\u2019 imprisonment on the second count, and otherwise affirm the judgment of the trial court. As the issues raised by defendant are largely discrete, we will not set forth in detail the evidence presented at trial and will instead discuss it as it pertains to defendant\u2019s arguments.\nI. ONE ACT, ONE CRIME\nDefendant\u2019s first contention is that one of his convictions must be vacated pursuant to one-act, one-crime principles. This issue presents a question of law subject to de novo review. Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 698 (2004). The one-act, one-crime rule holds that multiple offenses may not be \u201ccarved from the same physical act.\u201d People v. King, 66 Ill. 2d 551, 566 (1977). Defendant argues that the indictments, jury instructions, and verdict forms for counts I and II differed only in the time periods specified in them. Both counts alleged that defendant \u201cplaced his penis in the vagina of\u2019 the victim. Count I alleged conduct occurring between June 24, 1999, and March 20, 2000. Count II was based on conduct alleged to have occurred on or about March 20, 2000. Thus, defendant points out, the jury could have found that the State had proved one instance of such conduct, but convicted on both counts.\nBefore proceeding further, we note that defendant concedes that this issue was not properly preserved for review. He asks that we reach the merits under the plain-error rule. See 134 Ill. 2d R. 615(a). The plain-error rule permits a court of review to reach an unpreserved error where the evidence is closely balanced or where the error is of such a substantial nature that it implicates the integrity of the judicial process. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). We have little trouble concluding that an error that results in an improper conviction and leads to a 12-year sentence of imprisonment (actually 9, as we discuss later) is of sufficient magnitude to warrant plain-error review. In People v. Harvey, 211 Ill. 2d 368, 369 (2004), our supreme court held that \u201can alleged one-act, one-crime violation and the potential for a surplus conviction and sentence affect[ ] the integrity of the judicial process, thus satisfying the second prong of the plain error rule.\u201d We will therefore reach the merits of defendant\u2019s claim here.\nRegarding the merits, we find the case of People v. Wasson, 175 Ill. App. 3d 851 (1988), to be of considerable guidance in resolving this issue. In that case, the defendant was charged with and convicted of committing aggravated criminal sexual assault between January 1, 1983, and April 24, 1985. Wasson, 175 Ill. App. 3d at 853. The statutory provision under which the defendant was charged, however, became effective on July 1, 1984. Wasson, 175 Ill. App. 3d at 854. The reviewing court determined that, absent a limiting instruction stating that the defendant could not be convicted of conduct occurring before July 1, 1984, \u201cit [was] impossible to know whether the jury instead convicted defendant for an act performed, as alleged in the complaint, during the period which predated the statute under which he was charged.\u201d Wasson, 175 Ill. App. 3d at 859-60. As \u201cthe information charged defendant for an offense which could have occurred before the corresponding statute was legally operative, [the Wasson court found] it necessary to invalidate the entire charging instrument and the resulting conviction.\u201d Wasson, 175 Ill. App. 3d at 860.\nSimilarly, in this case, it is impossible to determine whether the jury found that there was one instance of penile to vaginal contact and yet found defendant guilty with regard to both counts because that instance of conduct took place between June 24, 1999, and March 20, 2000, but also happened to occur on or about March 20, 2000, or if it determined that there were multiple instances of such conduct. We further note that the Wasson court relied in part upon the fact that there was \u201cconflicting testimony as to when the offense was committed\u201d (Wasson, 175 Ill. App. 3d at 860), while in this case, the victim testified to an act of intercourse occurring on March 17, 2000, which is within the time periods described in both counts. The State points out that there is adequate evidence in the record to support convictions on multiple counts. We do not disagree; however, it is not our prerogative to place ourselves in the position of the jurors and try to determine how they arrived at their verdict. The problem here is that we cannot tell what the jury based its verdict on, and it is that verdict that is challenged on appeal. It is, after all, the jury that must convict the defendant. See People v. Walker, 392 Ill. App. 3d 277, 296 (2009). As we cannot say that multiple offenses (and here, multiple convictions) have not been \u201ccarved from the same physical act,\u201d both of defendant\u2019s convictions on counts I and II cannot stand. See King, 66 Ill. 2d at 566. We therefore vacate defendant\u2019s conviction on the first count of the indictment.\nII. AGGRAVATED STALKING \u2014 PROOF BEYOND A REASONABLE DOUBT\nDefendant next contends that he was not proven guilty of aggravated stalking. This offense \u2014 as defendant was charged with it\u2014 required that the State prove he committed stalking and, in the course of so doing, violated an order of protection. See 720 ILCS 5/12\u2014 7.4(a)(3) (West 2000). To prove stalking, as alleged, the State had to prove that defendant placed the victim under surveillance on at least two occasions and placed her in reasonable apprehension of future confinement or restraint. See 720 ILCS 5/12 \u2014 7.3 (West 2000). The stalking statute defines placing a person under surveillance as \u201cremaining present outside the person\u2019s school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant.\u201d 720 ILCS 5/12 \u2014 7.3(d) (West 2000). It has been held that the requirement that a defendant \u201cremain[ ] present outside\u201d does not mean that the defendant must \u201cstop, stay or wait for a set period of time.\u201d People v. Curtis, 354 Ill. App. 3d 312, 318 (2004). Defendant cites a number of cases where this element was satisfied when a defendant actually did remain present for a more extended period of time. See, e.g., People v. Sowewimo, 276 Ill. App. 3d 330, 341-42 (1995). We do not read such cases as establishing as a matter of law a minimum period that a defendant must place a victim under surveillance. Additionally, we use an objective standard to determine whether a victim is placed in \u201creasonable apprehension of future confinement or restraint.\u201d People v. Nakajima, 294 Ill. App. 3d 809, 820 (1998) (making irrelevant defendant\u2019s claim that the victim did not testify that she was actually afraid of defendant in this case). Any history between a defendant and a victim may be relevant to assessing whether a reasonable person in the victim\u2019s position would be in apprehension of future confinement or restraint. See People v. Holt, 271 Ill. App. 3d 1016, 1025 (1995). Thus, the State was required to prove that, on at least two occasions, after an order of protection was in place, defendant placed the victim under surveillance by remaining present outside a place occupied by the victim, thereby placing her in reasonable apprehension of future confinement or restraint.\nWhen faced with a challenge to the sufficiency of the evidence to sustain a conviction, a court of review must determine whether the evidence, construed in the light most favorable to the State, would allow any rational trier of fact to find beyond a reasonable doubt the essential elements of the crime charged. People v. Wheeler, 226 Ill. 2d 92, 114 (2007). All reasonable inferences must be drawn in the State\u2019s favor. People v. Williams, 376 Ill. App. 3d 875, 883 (2007). It is not our role to retry a defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). Further, the trier of fact was in the best position to assess the credibility of witnesses, as it was able to actually hear them testify. Smith, 185 Ill. 2d at 541-42. A conviction will be reversed only if \u201cthe evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of defendant\u2019s guilt.\u201d Wheeler, 226 Ill. 2d at 115.\nIt is undisputed that defendant was served with a temporary order of protection on April 27, 2000, and a permanent one on May 10, 2000. Thus, the State had to prove conduct occurring after April 27, 2000. It is, however, also true that the State \u201cis not bound to prove that the offenses were committed on the particular date stated in the bill of particulars, or in the grand jury indictment.\u201d People v. Sui Wing Eng, 138 Ill. App. 3d 281, 287 (1985). In this case, we find the following testimony by the victim sufficient to sustain defendant\u2019s conviction of aggravated stalking:\n\u201cQ. [State\u2019s Attorney:] After [defendant] was asked to leave the house in March of 2000, do you know if the police were ever called because of him being at the school or near your home?\nA. After I saw him up there and an order of protection was taken out, I was told by my mom and Pat that if I saw him up there, to go and tell the gym teacher. I don\u2019t know if something was done outside of that[,] me personally, I\u2019m not aware of the police being called, because whenever I would go toward the gym teacher he would take off.\u201d\nThis testimony, construed in the light most favorable to the State, obviously refers to more than one instance that occurred after the order of protection was in place. Further, it is also apparent that defendant had remained present for a time, since he would not leave until the victim moved toward the gym teacher. Moreover, it is also clear that the victim was aware of defendant\u2019s presence since it caused her to move toward the gym teacher. Finally, under the totality of the facts and circumstances, a reasonable person in the victim\u2019s position would be in reasonable apprehension of future confinement or restraint. Given the long history of sexual abuse inflicted upon the victim by defendant, the jury could certainly conclude that a reasonable person who was then placed under surveillance by such an abuser would be placed in apprehension of future confinement or restraint. Accordingly, construing the record in the light most favorable to the State, we hold that the State presented sufficient evidence to sustain defendant\u2019s conviction for aggravated stalking\nIII. THE ALLEGEDLY BIASED JUROR\nDefendant also argues that the trial court erred by refusing to remove a juror who was an acquaintance of the victim. A defendant has a fundamental right to an open-minded and unbiased trier of fact. People v. Harris, 384 Ill. App. 3d 551, 560 (2008). Generally, a person is not competent to sit as a juror if his or her state of mind is such that a party will be denied a fair trial. People v. Cole, 54 Ill. 2d 401, 413 (1973). The mere suspicion that a juror is biased is insufficient to warrant disqualifying a juror. People v. Collins, 106 Ill. 2d 237, 274 (1985). The question of whether a particular juror is impartial is for the trial court to answer in the first instance, and we will disturb such a determination only if it is contrary to the manifest weight of the evidence. People v. Harris, 231 Ill. App. 3d 876, 878 (1992). The ultimate decision of whether to replace a juror is a matter within the discretion of the trial court, and it will be disturbed only if that discretion is abused. People v. Hines, 165 Ill. App. 3d 289, 298 (1988).\nDuring a break in her direct testimony, the victim indicated that she knew one of the jurors, Angela LaFew. The victim told the court that she was in a church youth group with LaFew, but that the victim was with the middle-school group and LaFew was with the high-school group. She had not seen LaFew for four or five months. The victim stated that she would say \u201chi\u201d if they passed each other. She met LaFew within the year preceding the trial. She further stated, \u201cI haven\u2019t \u2014 we\u2019ve never actually met, I just know what her name is.\u201d The victim did not recall ever seeing LaFew prior to the previous summer. In total, they had seen each other two or three times.\nAt the conclusion of the victim\u2019s testimony, the court questioned LaFew outside the presence of the other jurors. LaFew acknowledged that she recognized the victim when the victim testified. She knew the victim from church. She stated, however, that she did not know the victim \u201cvery well.\u201d She had not recognized the victim\u2019s name (the victim had changed her last name, and LaFew did know the former name). They never socialized or interacted at school. Primarily, according to LaFew, they interacted at church. LaFew said that the interaction consisted of having \u201cseen her there and chatted with her for a second.\u201d LaFew and the victim shared a mutual friend so they would \u201cstop and say hey to each other.\u201d The trial court then asked whether the fact that she knew the victim would affect LaFew\u2019s ability to be impartial, and LaFew responded negatively. She further indicated that she would give the victim\u2019s testimony neither more nor less weight and that she could judge the victim\u2019s credibility the same way that she would judge the testimony of anyone else. LaFew answered affirmatively when asked if she could be fair. LaFew also stated that she and the victim were \u201cnot close\u201d and that she had never discussed the victim\u2019s \u201csituation\u201d with anyone. LaFew had seen the victim at church \u201cmaybe three times at best.\u201d\nDefense counsel asked that LaFew be removed from the jury, indicating that if he had been aware of the relationship between the victim and LaFew, he would \u201cprobably\u201d have moved to strike her. The trial court declined that request. It first noted that there was no deceit involved during voir dire. It further noted that the victim\u2019s and LaFew\u2019s accounts of their interactions were consistent, including their statements about the number of times they had seen each other. It noted that LaFew did not even know the victim\u2019s last name. The trial court also credited LaFew\u2019s assurances that she could remain impartial and properly evaluate the victim\u2019s testimony. We cannot say that the finding of impartiality is contrary to the manifest weight of the evidence or that the decision to keep LaFew was an abuse of discretion.\nWe find considerable guidance for the resolution of this issue in the supreme court\u2019s opinion in People v. Porter, 111 Ill. 2d 386 (1986). In that case, a juror attended the same church as the mother of the victim. The juror stated that she did not realize this until after \u201c \u2018it had gotten started and everything was going on.\u2019 \u201d Porter, 111 Ill. 2d at 398. The trial court questioned the juror after the trial had concluded. The juror stated that the fact that she and the victim\u2019s mother attended the same church \u201c \u2018didn\u2019t make any difference to\u2019 \u201d her. Porter, 111 Ill. 2d at 397. The trial court denied a subsequent motion for a mistrial. The supreme court noted that all the record showed was that the juror and the victim\u2019s mother attended the same church. Porter, 111 Ill. 2d at 404. This was insufficient to show that the defendant had suffered any prejudice. Porter, 111 Ill. 2d at 404. The evidence in this case is similarly scant. Defendant attempts to distinguish Porter because there is evidence in this case that the victim and LaFew actually knew each other. While this is undeniably true, it is also true that their relationship was fleeting in nature. On two or three occasions, they basically greeted each other. The salient fact in this case, as in Porter, is that they both were members of the same church. Porter teaches that this fact alone is insufficient to mandate the disqualification of a juror, and, though there is scant evidence in this case of an acquaintance, consisting of a small number of interactions between the victim and LaFew, we fail to see how those brief and minimal interactions truly differentiate this case from Porter. Accordingly, we hold that the trial court did not err in refusing to replace LaFew with an alternate juror.\nIV THE ADMISSION OF PORNOGRAPHIC IMAGES\nDefendant next alleges error in the trial court\u2019s decision to allow the State to introduce certain pornographic images that were recovered from his computer. The trial court ruled that the State could elicit testimony about certain pornographic images depicting acts of pedophilia and bestiality and that the photographs would be admitted into evidence but not published to the jury. The trial court explained that this evidence was being admitted \u201cfor the limited purpose of \u2014 well, it\u2019s corroboration. [The victim] testified she was shown these things and the police recovered those items from his computers.\u201d\nDefendant, citing, inter alia, People v. Romero, 66 Ill. 2d 325, 330-32 (1977), asserts that it was error for the trial court to admit this evidence of another bad act simply to bolster the credibility of one of the State\u2019s witnesses. We agree. It is generally improper \u2014 with some exceptions not pertinent here \u2014 to admit evidence of other crimes simply to enhance the credibility of a prosecution witness. People v. Thingvold, 145 Ill. 2d 441, 459 (1991); People v. Turner, 78 Ill. App. 3d 82, 94 (1979) (\u201c[E]vidence of other crimes may not be used to enhance the credibility of a State witness\u201d). Plainly, the trial court erred in allowing the State to elicit testimony about these images.\nHowever, as defendant concedes, this error was not included in his motion for a new trial and would normally be forfeited. People v. Bennett, 281 Ill. App. 3d 814, 823 (1996). He invites us to conduct plain-error review. Our supreme court has explained the plain-error rule as follows:\n\u201c[T]he plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. In the first instance, the defendant must prove \u2018prejudicial error.\u2019 That is, the defendant must show both that there was plain error and that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. The State, of course, can respond by arguing that the evidence was not closely balanced, but rather strongly weighted against the defendant. In the second instance, the defendant must prove there was plain error and that the error was so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process. [Citation.] Prejudice to the defendant is presumed because of the importance of the right involved, \u2018regardless of the strength of the evidence.\u2019 (Emphasis in original.) [Citation.]\u201d People v. Herron, 215 Ill. 2d 167, 186-87 (2005).\nDefendant asserts that it is the second prong of the plain-error doctrine that is applicable here, that is, the admission of the other-crimes evidence was such a fundamental error that we should simply presume he was prejudiced and ignore his forfeiture of it.\nThis would be a strange result indeed, for, in ordinary circumstances where such an error is properly preserved, the issue is amenable to a harmless-error analysis. In People v. Lindgren, 79 Ill. 2d 129, 141 (1980), our supreme court, in assessing whether a conviction could stand where the State introduced evidence of an unrelated arson, stated, \u201ca conviction will be upheld only if the properly admitted evidence is so overwhelming that no fair minded jury could have voted for acquittal [citations] or, to put it another way, only if the record affirmatively shows that the error was not prejudicial.\u201d In People v. Butler, 58 Ill. 2d 45, 49 (1974), the court observed, \u201cWe are not persuaded, however, that the possibility of one or more jurors concluding from these vague and indirect references that defendant had been initially arrested in connection with a different murder could have affected the guilty verdict.\u201d As an error concerning the admission of other-crimes evidence may be deemed harmless in appropriate circumstances, we cannot say that such an error is so fundamental that it necessarily satisfies the second prong of the plain-error doctrine. That is, if such an error is not presumptively prejudicial in ordinary circumstances, we see no reason to deem it presumptively prejudicial here. Hence, we must consider this particular error in the context of the specific facts of this case.\nLooking to its details, we do not view the error to be of sufficient magnitude to have deprived defendant of a fair trial. Quite simply, the victim testified to numerous incidents of sexual contact with defendant that started when she was nine years old and continued until a few months before her thirteenth birthday. She added that these occurred three or four times per week. The victim described various sex acts, including intercourse and oral sex. While the allegation that defendant possessed some deviant pornographic images certainly reflected negatively on defendant, it does not seem to us to be particularly prejudicial in light of the substantial testimony that defendant abused a child for a period of nearly four years. In People v. Nunley, 271 Ill. App. 3d 427 (1995), the defendant was on trial for murder and armed robbery. To help explain to the jury why the defendant confessed, the State presented substantial and gruesome evidence of an earlier crime for which the defendant was in custody. The reviewing court reversed, noting that the other-crimes evidence involved \u201cconduct far more grotesque than that for which [the defendant] was on trial.\u201d Nunley, 271 Ill. App. 3d at 432. In this case, conversely, mere possession of pornographic images is less reprehensible than the crimes for which defendant was on trial. We thus see little prejudice here.\nIn short, the trial court should have excluded the evidence of which defendant complains. Defendant, however, did not properly preserve this error. Additionally, we cannot say that the error was \u201cso serious that it affected the fairness of *** defendant\u2019s trial and challenged the integrity of the judicial process.\u201d Herron, 215 Ill. 2d at 187. We therefore decline to find reversible plain error, and we reject defendant\u2019s argument on this issue.\nV EXCESSIVE SENTENCING\nDefendant finally argues that because he had previously been sentenced to 9 years\u2019 imprisonment on the first two counts of the indictment, it was beyond the power of the trial court to resentence him to 12 years\u2019 imprisonment after this court vacated his earlier convictions on these counts and remanded for further proceedings. See People v. McCutcheon, 68 Ill. 2d 101, 108 (1977). Defendant relies upon section 5 \u2014 5\u20144 of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 5\u20144 (West 2008)), which provides, in relevant part, as follows:\n\u201cWhere a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing.\u201d\nThus, unless the increase in defendant\u2019s sentences was based on conduct occurring after the first time defendant was sentenced, the trial court erred in imposing longer sentences.\nAs an initial matter, the State argues that this issue was not properly preserved and is therefore forfeited. Defendant responds that we should review it for plain error. Generally, however, a sentence that does not comport with applicable statutory guidelines is beyond the power of a trial court and therefore void. People v. Williams, 179 Ill. 2d 331, 336 (1997) (\u201cA sentence not authorized by statute is void\u201d). A void sentence may be challenged at any time. People v. Roberson, 212 Ill. 2d 430, 440 (2004). Moreover, it has been held that \u201c \u2018[t]he imposition of an unauthorized sentence affects substantial rights\u2019 and that plain error review extends to such matters.\u201d People v. Calhoun, 377 Ill. App. 3d 662, 667 (2007), quoting People v. Hicks, 181 Ill. 2d 541, 545 (1998). As defendant\u2019s contention is that his sentence violates the provisions of section 5 \u2014 5\u20144 of the Code, we will review it here.\nWe must look at the trial court\u2019s ruling and see if the increase in sentence was based on conduct that occurred after defendant\u2019s original sentencing hearing. The State points to two considerations to justify the harsher sentences. It first notes the trial judge\u2019s observation that there was \u201cnothing in the defendant\u2019s statement in allocution which would indicate to this court any remorse.\u201d The State also relies upon the testimony of Ann Young, who was involved with defendant\u2019s case when she worked for Family Advocate, an agency that provides case management and counseling services in cases of sexual abuse. Young testified that the fact that defendant \u201cwas now denying his own victimization\u201d made it more likely that defendant would recidivate.\nNeither of these considerations constitutes \u201cconduct on the part of the defendant occurring after the original sentencing\u201d within the meaning of section 5 \u2014 5\u20144 of the Code. 730 ILCS 5/5 \u2014 5\u20144 (West 2008). Our research reveals no case \u2014 nor has any been called to our attention \u2014 that has construed this phrase; hence, we must first construe the statute and ascertain the meaning of the phrase. In construing a statute, our primary goal is to ascertain and give effect to the intent of the legislature. People ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389, 397 (2004). Our primary guide in ascertaining the intent of the legislature in enacting this provision is the plain language of the statute. People v. De Filippo, 387 Ill. App. 3d 322, 334 (2008). Words, unless otherwise defined by the legislature, must be given their \u201cordinary and popularly understood meaning.\u201d Smith, 212 Ill. 2d at 397. Where that language is clear and unambiguous, it must be given effect as it is written. People v. Kasp, 352 Ill. App. 3d 180, 185 (2004). In such cases, we have no occasion to resort to other aids of construction. People v. Pullen, 192 Ill. 2d 36, 42 (2000). We may, nevertheless, consult a dictionary to determine the plain meaning of an \u201c \u2018otherwise undefined word or phase.\u2019 \u201d People v. Fort, 373 Ill. App. 3d 882, 885 (2007), quoting People v. Skillom, 361 Ill. App. 3d 901, 909 (2005).\nSection 5 \u2014 5\u20144 refers to \u201cconduct.\u201d \u201cConduct\u201d is defined as \u201cbehavior in a particular situation or relation or on a specified occasion.\u201d Webster\u2019s Third New International Dictionary 474 (2002). As \u201cconduct\u201d requires \u201cbehavior,\u201d we do not believe that it encompasses holding a certain attitude toward one\u2019s crime or a belief about one\u2019s past. Rather, we hold that, by requiring subsequent conduct, the legislature intended some type of an act on the defendant\u2019s part to qualify under section 5 \u2014 5\u20144. As the State has identified no subsequent conduct to justify the longer sentence imposed by the trial court, we reduce defendant\u2019s sentence on count II to nine years\u2019 imprisonment. Defendant\u2019s argument is moot with respect to the first count, as we have already vacated it. All other aspects of defendant\u2019s sentences are to remain as imposed by the trial court, including that they run consecutively.\nVI. CONCLUSION\nIn light of the foregoing, we vacate defendant\u2019s conviction and sentence with regard to the first count of the indictment. We also reduce defendant\u2019s sentence regarding the second count to nine years\u2019 imprisonment. We otherwise affirm the judgment of the circuit court of Winnebago County.\nVacated in part and affirmed as modified in part.\nMcLAREN, J., concurs.", "type": "majority", "author": "JUSTICE HUDSON" }, { "text": "PRESIDING JUSTICE ZENOFF,\nspecially concurring:\nI agree with the majority\u2019s analysis and result, but I feel constrained to write separately on the excessive-sentencing issue to point out the shortcomings of section 5 \u2014 5\u20144 of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 5\u20144 (West 2008)), which prohibits defendant\u2019s increased sentence. The council commentary summary to that section states that it \u201c[ljimits the use of increased sentences where an original conviction or sentence has been overturned by a higher court.\u201d 730 ILCS Ann. 5/5 \u2014 5\u20144, Council Commentary \u2014 1973, at 968 (Smith-Hurd 2008). The commentary goes on to explain that the provision was adopted to codify the rule set out by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), and followed by Illinois in People v. Baze, 43 Ill. 2d 298 (1969). In Pearce, the Court limited the power of a sentencing court to increase a sentence after reconviction following a new trial. Pearce, 395 U.S. at 725-26, 23 L. Ed. 2d at 669-70, 89 S. Ct. at 2080-81. It held that the fourteenth amendment\u2019s due process clause prevented the increase if it was motivated by the sentencing judge\u2019s vindictiveness. Pearce, 395 U.S. at 725-26, 23 L. Ed. 2d at 669-70, 89 S. Ct. at 2080-81. Later, in Alabama v. Smith, 490 U.S. 794, 802, 104 L. Ed. 2d 865, 874, 109 S. Ct. 2201, 2206 (1989), the Court said that there is no presumption of vindictiveness when a second sentence imposed after a trial is greater than a first sentence imposed after a guilty plea. It reasoned that even where the same judge imposes both sentences, the judge would most likely have greater information available after a trial, and the factors of leniency in consideration of a plea would be absent. Smith, 490 U.S. at 801, 104 L. Ed. 2d at 874, 109 S. Ct. at 2206.\nSection 5 \u2014 5\u20144 of the Code makes no such distinction between a plea and a trial. It just provides that when an appellate court overturns a conviction, the defendant cannot thereafter receive a higher sentence. Moreover, the statute makes no distinction based on the reason that a conviction may have been set aside. The prohibition applies regardless of whether the case is sent back based on faulty admonitions or on an analysis of the substantive issues. The fact that the conviction is set aside on appeal as opposed to at the trial level triggers the application of the provision.\nThus, in People v. McCutcheon, 68 Ill. 2d 101, 104 (1977), when the appellate court vacated the defendant\u2019s guilty plea and the defendant then was convicted after a trial, the parties \u201cagreed\u201d that section 5 \u2014 5\u20144 precluded a higher sentence. To be sure, the supreme court did not expressly approve that agreement; however, as this court has noted, \u201cthe supreme court did not disagree with the premise that McCutcheon could not receive a greater sentence where the appellate court vacated his guilty plea and remanded for him to plead anew.\u201d People v. Miller, 286 Ill. App. 3d 297, 302 (1997); see also People v. Jackson, 299 Ill. App. 3d 104, 116-17 (1998) (reading McCutcheon similarly).\nThis result in essence gives defendant a windfall. Although a defendant usually has an incentive to plead guilty \u2014 to get leniency in sentencing \u2014 the defendant in this scenario has no such incentive. That is, he has nothing to lose by going to trial after the first conviction is vacated by the appellate court regardless of the reasons \u2014 he might get acquitted, but even if he is convicted, he is guaranteed to come out no worse than he did when he pleaded guilty. The trial court is required to give him the same leniency that it gave him when he pleaded guilty, even though, in the end, he did not plead guilty. I think that the General Assembly, in attempting to codify Pearce, overlooked these important distinctions.", "type": "concurrence", "author": "PRESIDING JUSTICE ZENOFF," } ], "attorneys": [ "Thomas A. Lilien and Kathleen Week, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E Bruscato, State\u2019s Attorney, of Rockford (Lawrence M. Bauer, Marshall M. Stevens, and Mary Beth Burns, all of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON N. STRAWBRIDGE, Defendant-Appellant.\nSecond District\nNo. 2\u201408\u20140701\nOpinion filed September 9, 2010.\nZENOFF, EJ., specially concurring.\nThomas A. Lilien and Kathleen Week, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E Bruscato, State\u2019s Attorney, of Rockford (Lawrence M. Bauer, Marshall M. Stevens, and Mary Beth Burns, all of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople." }, "file_name": "0460-01", "first_page_order": 476, "last_page_order": 489 }