Appeal from the Circuit Court of Cook County No. 95 CR 27116 Honorable Reginald Baker, Judge Presiding.
The opinion of the court was delivered by: Justice Cerda
Following a bench trial in July 1997, defendant, Harry Bowens, was convicted of attempt (first degree murder) (count I of the indictments) (720 ILCS 5/8-4(a); 5/9-1 (West 1992)), and armed violence predicated upon the offense of aggravated battery causing permanent disability (counts IV and VII of the indictments) (720 ILCS 5/33A-1; 5/12-4(a); 5/12-3 (West 1992)), in connection with the stabbing and beating of John Dijiulio on September 3, 1995. Defendant was sentenced in accordance with the "truth-in-sentencing" law codified in section 3-6-3(a)(2)(ii) of the Unified Code of Corrections (Code) (730 ILCS 5/3-6-3(a)(2)(ii) (West 1996)), and received concurrent terms of 30 years' imprisonment for both offenses. On appeal, defendant argues he should not be subject to the provisions of the "truth-in-sentencing" law because its enacting legislation, Public Act 89-404, violates the single-subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)), and therefore is unconstitutional. The State, in addition to defending the validity of Public Act 89-404, contends the case must be remanded for resentencing because the trial court erred by imposing concurrent sentences when the imposition of consecutive sentences was mandated by the Code.
In his reply brief, defendant did not respond to the State's contention that a remand for resentencing is necessary, but simply addressed the State's position concerning the validity of the "truth-in-sentencing" law. This court ordered defendant to respond to the State's resentencing argument. We further advised defendant to address the issue of whether his convictions were carved from the same physical act in violation of the "one act-one crime" rule announced in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). Defendant filed a supplemental reply brief discussing the foregoing issues, and the State followed by filing a surreply brief.
During the pendency of this appeal, the Illinois supreme court in People v. Reedy, Nos. 85191 and 85297 cons., slip opn. at 12 (January 22, 1999), found the "truth-in-sentencing" law as enacted by Public Act 89-404 unconstitutional. The court noted that our General Assembly passed amendatory legislation, Public Act 90-592, which deleted and recodified the truth-in-sentencing law. The court specifically found Public Act 90-592 cured the effect of the earlier act's invalidation. Reedy, slip opn. at 11. The court, however, held the amendatory legislation was intended to apply prospectively and would cover offenses committed only on or after June 19, 1998. Reedy, slip opn. at 12.
In this case, defendant's unlawful conduct occurred in September 1995. Defendant is therefore not subject to the reenacted truth-in-sentencing provisions. Accordingly, we modify the trial court's sentencing mittimus to reflect defendant's eligibility for day-to-day good-time credit as provided in section 3-6-3(a)(2) of the Code prior to the enactment of Public Act 89-404. See 730 ILCS 5/3-6-3(a)(2) (West 1994).
We now consider whether the entry of multiple convictions against defendant were proper. The State's evidence at trial established that in the early morning hours of September 3, 1995, defendant and the victim were sitting on a porch sharing a beer. At some point, the victim stood up and walked away. Defendant approached the victim from behind and suddenly stabbed him in the throat. Defendant then pushed the victim to the ground and repeatedly kicked him in the area of his head and neck. Defendant then fled the scene. As a result of the attack, the victim is paralyzed from the chest down.
Defendant argues his conviction for armed violence should be vacated because it was based on the same physical act as his conviction for attempt murder in contravention of the principles enunciated in King. In King, our supreme court considered the propriety of multiple convictions for offenses committed during the same transaction, and held:
"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. 'Act,' when used in this sense, is intended to mean any overt or outward manifestation, which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.
Defendant asserts his stabbing and subsequent kicking of the victim represented a single physical act under King. In support of this proposition, defendant cites People v. Ellis, 143 Ill. App. 3d 892, 493 N.E.2d 739 (1986), which utilized a series of factors to determine whether the defendant's conduct in that particular case constituted separate physical acts or merely distinct parts of one act. These factors included: (1) the prosecutorial intent, shown by the wording of the charging instruments, as reflective upon whether the State attempted to differentiate between the conduct supporting the charges involved; (2) whether the defendant's acts were interposed by an intervening event; (3) the time interval between the successive parts of the defendant's conduct; (4) the identity of the victim; (5) the similarity of the acts performed; (6) and whether the conduct occurred at the same location. Ellis, 143 Ill. App. 3d at 896-97, 493 N.E.2d at 742. A number of other appellate court cases have relied on the foregoing factors when determining if a defendant's conduct represented a single physical act for purposes of King. See People v. Moss, 274 Ill. App. 3d 77, 83, 654 N.E.2d 248, 252 (1995); People v. Zarate, 264 Ill. App. 3d 667, 677, 637 N.E.2d 1044, 1051-52 (1994); People v. Cobern, 236 Ill. App. 3d 300, 303, 603 N.E.2d 693, 695 (1992); People v. Guzman, 208 Ill. App. 3d 525, 535, 567 N.E.2d 500, 507-08 (1990); People v. Crum, 183 Ill. App. 3d 473, 490, 539 N.E.2d 196, 207 (1989); People v. Baity, 125 Ill. App. 3d 50, 52-53, 465 N.E.2d 622, 623-25 (1984).
Defendant urges this court to apply the above factors in this case to find that his convictions were improperly based on the same physical act. We decline to do so. In People v. Rodriguez, 169 Ill. 2d 183, 661 N.E.2d 305 (1996), the supreme court recently revisited the King decision, and specifically referenced the use of the six-part test traditionally employed by the appellate courts. In Rodriguez, the court enunciated a two-part approach for applying its ruling in King. First, the court must determine whether the defendant's conduct consisted of separate acts or a single physical act. If multiple convictions are predicated on precisely the same physical act, then the convictions are improper. If the court finds the defendant committed separate acts each sufficient to support multiple convictions, it must then decide whether any of the offenses are lesser included offenses. If so, multiple convictions are improper; if not, then multiple convictions may be entered. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306-07.
The Rodriguez court then noted that the appellate court in that case used the six-part test to determine whether the accused's conduct consisted of a single act under King. Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 307. Without addressing the merits of this test, and while not explicitly adopting or rejecting its application, the court cautioned that "a court must not lose sight of the forest for the trees." Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 307. The court followed by stressing that "[t]he definition of the term 'act' under the King doctrine remains simply what [the] court stated in King: 'any overt or outward manifestation which will support a different offense.'" Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 307, citing King, 66 Ill. 2d at 566, 363 N.E.2d at 845.
Since the Rodriguez decision neither expressly endorses nor rejects the six-factor test fashioned by the appellate courts, the supreme court's position regarding the test's application in cases like the instant matter remains unclear. Notwithstanding, a clear import of the supreme court's decision, particularly in light of its cautionary note, is that the six-part test should not be the focal point of the court's analysis. Instead, a court must carefully examine the nature of the particular defendant's conduct as shown by the evidentiary record, and then determine whether that conduct can be broken down into separate parts, i.e., distinct and identifiable "overt or outward manifestations," that would, by themselves, support multiple convictions.
The court's recent decision in People v. Harris, 182 Ill. 2d 114, 695 N.E.2d 447 (1998), illustrates this approach. There, the accused, who was convicted of first degree murder and attempted armed robbery, argued his convictions were improperly based on the same physical act, namely his shooting of the victim. The evidence showed the accused and several other persons were driving in a Mercedes discussing carjackings immediately prior to the victim's murder. After the Mercedes pulled into a parking lot where the victim was sitting in his car, one of the vehicle's occupants, Antoine Moore, exited and approached the victim's car. Moore attempted to open the victim's door, and when the door did not open, Moore ordered the victim out. The victim refused, and Moore returned to the Mercedes. At that point the accused exited the Mercedes and fired a shot at the victim's car window, shattering it. The accused then fired a second shot that fatally struck the victim in the head.
In rejecting the accused's contention that he was improperly convicted of multiple offenses, the court noted the evidence showed that the accused fired two gunshots at the victim's car. The first shot shattered the car window but did not strike the victim, while the second shot struck the victim in the head, killing him. The court found that while the accused's conviction for first degree murder must be based on the second, fatal shot, his conviction for attempted armed robbery could have been based on the first shot. Harris, 182 Ill. 2d at 134, 695 N.E.2d at 457. The court held that the accused's convictions were proper because "discrete physical acts underlie[d] each offense." Harris, 182 Ill. 2d at 134, 695 N.E.2d at 457. Notably, the Harris court neither mentioned the six-part test nor applied any of its factors in determining that the accused's conduct consisted of multiple acts. Instead, the court simply focused on whether the accused's "manifestations," i.e., the acts of firing two gunshots, were sufficiently separate to support both convictions. See also People v. Melton, 282 Ill. App. 3d 408, 421-22, 667 N.E.2d 1371, 1381 (1996) (being "mindful of the supreme court's cautionary note in Rodriquez," the court declined to apply the six-part test, and instead elected to focus solely on the defendant's particular conduct to conclude multiple convictions ...