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07/26/96 PEOPLE STATE ILLINOIS v. JOE MEDRANO

July 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOE MEDRANO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Earl B. Hoffenberg, Judge Presiding.

Released for Publication August 29, 1996.

Presiding Justice Zwick delivered the opinion of the court. McNAMARA, J. and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

On June 9, 1992, defendant, Jose Medrano, was charged by indictment with attempt first degree murder, aggravated unlawful restraint, armed robbery, aggravated criminal sexual abuse, criminal sexual assault, armed violence, and multiple counts of aggravated kidnapping. Following a jury trial, defendant was convicted of attempt first degree murder, armed robbery, aggravated criminal sexual abuse, aggravated kidnapping, aggravated criminal sexual assault, and aggravated battery. The aggravated battery conviction was merged by the trial court with the attempted murder conviction and defendant was subsequently sentenced to concurrent terms of imprisonment of sixty years for the attempt murder and fifteen years for the aggravated kidnapping and two concurrent terms each of thirty years for the aggravated criminal sexual assault and armed robbery. The two concurrent terms of thirty years were to be served consecutive to the two concurrent terms of sixty and fifteen years (total of 90 years). Defendant now appeals.

Of the issues raised, only the claims regarding defendant's aggravated criminal sexual assault convictions and sentencing meet the criteria for publication under Supreme Court Rule 23(a) (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23(a) eff. July 1, 1994). Accordingly, pursuant to Illinois Supreme Court Administrative Order No. 10343, we have omitted our discussion of all but these issues in our published opinion.

[The following material is nonpublishable pursuant to Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

We turn to the defendant's claim that judgment was improperly entered on the charges of aggravated criminal sexual assault. The jury returned a verdict finding defendant guilty of three counts of aggravated criminal sexual assault pursuant to 720 ILCS 5/12-14(a), subsections (1) dangerous weapon; (2) bodily harm; and (3) threatening or endangering life. The trial judge stated that he was "going to enter judgment" on all counts of guilty charges, but the mittimus reflects that he sentenced defendant on only one of the three counts of aggravated sexual assault, i.e., the count based on subsection (1) dangerous weapon.

Defendant claims that three convictions based on the three separate guilty verdicts of aggravated criminal sexual assault arose from the same act of penetration. Defendant interprets the record as demonstrating that judgment was entered on all three guilty verdicts. Defendant requests that this court vacate the judgment as to two of these guilty verdicts. The State does not dispute that defendant was found guilty of three counts of aggravated criminal sexual assault based on one act, but argues that defendant was only sentenced based on one count of aggravated criminal sexual conduct, and so final judgment was entered properly on only one count. The State claims that by not sentencing defendant on the other two guilty verdicts of aggravated sexual assault, the trial court implicitly recognized that the two counts underlying those verdicts merged with the third count for purposes of final judgment.

The law is clear that multiple convictions cannot be carved from the same physical act. People v. King, 66 Ill. 2d 551, 363 N.E.2d 838, 6 Ill. Dec. 891 (1977). King concerned guilty verdicts resulting in sentences. The issue presented here is what constitutes a "conviction," -- a verdict of guilt, a pronouncement of judgment, or the imposition of a sentence?

"Conviction" means a judgment of conviction or sentence entered upon a plea of guilty or a finding or guilty of an offense, rendered by a legally constituted jury or by a court without a jury. Criminal Code, 720 ILCS 5/2-5, Code of Corrections, 730 ILCS 5/5-1-5 (West 1992); see also People v. Robinson, 267 Ill. App. 3d 900, 907, 642 N.E.2d 1317, 205 Ill. Dec. 200 (1994); People v. Young, 116 Ill. App. 3d 984, 990, 452 N.E.2d 718, 72 Ill. Dec. 465 (1983). "Judgment" means an adjudication by the court that the defendant is guilty or not guilty, and if the adjudication is guilty, it includes the sentence pronounced by the court. 725 ILCS 5/102-14, 730 ILCS 5/5-1-12 (West 1992); see also People v. Allen, 71 Ill. 2d 378, 381, 375 N.E.2d 1283, 16 Ill. Dec. 941 (1978). The final judgment in a criminal case is the imposition of sentence. People v. Dixon, 91 Ill. 2d 346, 438 N.E.2d 180, 63 Ill. Dec. 442 (1982); Robinson, 267 Ill. App. 3d at 907; Young, 116 Ill. App. 3d at 990. The sentence is a necessary part of a complete judgment of guilt. People v. Vaughn, 92 Ill. App. 3d 913, 416 N.E.2d 681, 48 Ill. Dec. 408 (1981). In the absence of a sentence, a judgment of conviction is not final. In re J.N., 91 Ill. 2d 122, 435 N.E.2d 473, 61 Ill. Dec. 776 (1992); People v. Warship, 59 Ill. 2d 125, 319 N.E.2d 507 (1974).

Defendant relies on People v. Smith, 111 Ill. App. 3d 494, 444 N.E.2d 565, 67 Ill. Dec. 329 (1982), and People v. Hernandez, 229 Ill. App. 3d 546, 593 N.E.2d 1123, 171 Ill. Dec. 303 (1992). While the issue here was not squarely presented in these decisions, Smith did treat a guilty verdict in the absence of sentencing thereon as a conviction for purposes of the King rule. Smith, 111 Ill. App. 3d at 500-01. And Hernandez refers to "judgments of convictions" on two charges where only one sentence was imposed. Hernandez, accordingly, vacated one "conviction" for purposes of the King rule. Hernandez, 229 Ill. App. 3d at 559-60.

The case of People v. Cruz, 196 Ill. App. 3d 1047, 554 N.E.2d 598, 143 Ill. Dec. 663 (1990), is more helpful. Relying on the former version of 720 ILCS 5/2-5, Cruz held that in the absence of a judgment formally entered or a sentence imposed, there is no "conviction." A jury verdict does not equal a judgment of conviction for purposes of applying King's rule against multiple convictions. Cruz, 196 Ill. App. 3d at 1052.

However, the entry of a judgment is only a ministerial act. Once a jury renders its verdict, it remains for the trial court to accept the verdict and pronounce its judgment. While imposition of a sentence completes the judgment and makes it final for purposes of an appeal, a judgment of conviction is rendered once the trial court adjudicates a defendant guilty.

In the present case, although the trial judge stated that he was "going to" enter judgment on all counts of the guilty charges, we construe his statement to indicate the pronouncement of judgment on all counts, which a clerk would then enter.

The State's argument that the two additional guilty convictions "merged" into the single judgment of conviction based on use of a deadly weapon does not change the fact that these were convictions.

We therefore find that defendant was convicted of three counts of aggravated criminal sexual assault, which the State has conceded was based on one physical act. The rule against multiple convictions requires that the two convictions for aggravated criminal sexual assault based on ...


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