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October 26, 1995


Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. William Hibbler, Judge, presiding.

The Honorable Justice Heiple delivered the opinion of the court: Justice Nickels, dissenting: Justice McMORROW joins in this dissent.

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

After a bench trial, the judge convicted Daniel Arna of two counts of attempted first degree murder for the shootings of Tonya Parks and Whitney Newell and sentenced him to concurrent terms of 30 and 45 years in prison. Defendant appealed, and the appellate court affirmed his convictions. (263 Ill. App. 3d 578.) Additionally, however, the appellate court found consecutive sentences mandatory and ordered the circuit court to impose consecutive sentences on remand. We affirm.

The relevant facts are as follows. Tonya Parks lived with Darrin Newell for four years until she moved out in December of 1990. Within a few months of leaving Newell, Parks met and moved in with defendant. While they lived together, defendant told Parks that if she ever left him he would kill her. Nevertheless, Parks left the defendant in mid-June of 1991 and moved back in with Darrin Newell.

On June 20, Parks, Newell, and their two children, Whitney and Porchia, went to a currency exchange at 422 East 61st Street in Chicago to pick up Parks' public aid check. Parks received her check and turned to use a table. She looked up and saw the defendant standing in the door of the currency exchange. Defendant then pulled out a handgun and shot Whitney twice in the head. As Parks ducked and tried to protect Whitney, the defendant shot her once in the chest. At the time of the shooting, Whitney was two years old.

Defendant then ran away. Newell put Parks and Whitney in his car and began driving to the hospital. En route, Parks told a police officer that her ex-boyfriend Daniel, the defendant, had shot her and Whitney. Later that day, after viewing a lineup, Newell positively identified defendant as the shooter.

Defendant turned himself into police. He claimed that he went to the currency exchange to find Parks, but that an unidentified person pushed him aside and committed the crimes.

While in jail awaiting trial, the defendant re-established contact with Parks. Defendant asked Parks to write him a letter stating that he was not the man who shot her and Whitney. Parks did so in May of 1991. Parks also executed a notarized affidavit which stated that Parks had been essentially coerced into implicating defendant and that Parks knew defendant was not the man who shot her.

Defendant waived his right to a jury trial and received a bench trial. At trial, Parks implicated defendant and stated that her letter and affidavit exculpating him were not true.

The judge found defendant guilty of two counts of attempted first degree murder. The judge stated that he was aware that Parks had changed her story several times, but that "the evidence *** established without any doubt" that defendant committed the crimes. He found defendant's story that he had been pushed aside by an unknown assailant "to be completely without belief."

The judge sentenced defendant to 30 years' imprisonment for the attempted murder of Tonya Parks. He found defendant eligible for an extended term of 30 to 60 years for the attempted murder of Whitney Newell and sentenced defendant to 45 years on that count. The judge specifically stated that the sentences were to run concurrently.

The defendant filed an appeal wherein he made several arguments challenging his convictions. Neither party on appeal objected to the concurrent nature of defendant's sentences. The appellate court first rejected defendant's claims of error and affirmed his convictions. The court went on, however, to hold that consecutive sentences were mandatory under section 5-8-4 of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1992)). The court concluded by ordering that the concurrent sentences be vacated and the cause remanded to the trial court for determination of the "appropriate sentences to be imposed consecutively."

Defendant's first claim of error relates to the propriety of the appellate court's action in sua sponte ordering that consecutive sentences be imposed. Section 5-8-4 of the Code governs the imposition of concurrent and consecutive sentences. (730 ILCS 5/5-8-4 (West 1992).) In both People v. Wittenmyer (1992), 151 Ill. 2d 175, 176 Ill. Dec. 37, 601 N.E.2d 735, and People v. Bole (1993), 155 Ill. 2d 188, 184 Ill. Dec. 423, 613 N.E.2d 740, this court interpreted section 5-8-4(a) of the statute as setting up certain conditions under which either consecutive or concurrent terms are mandatory. The determining criterion is whether the offenses were "committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective." (730 ILCS 5/5-8-4(a) (West 1992).) If these conditions are satisfied then consecutive sentences are mandatory if either: (1) one of the offenses was a Class X or Class 1 ...

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