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People v. Foster

October 20, 2000


Appeal from Circuit Court of McLean County No. 99CF464 Honorable G. Michael Prall, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cook

The charges in this case stem from a beating defendant, Jerry Lee Foster, gave to Vickie Talley, his cohabitant. In the early morning hours of May 2, 1999, Talley was lying on the living room couch of the couple's home. Both she and Foster had been drinking during an earlier family barbeque. Foster attempted to talk to Talley as she lay on the couch, but she declined. Foster then grabbed Talley's wrist and bent her fingers backward. As she rose, he punched her in the nose, breaking it. As Talley headed toward the bathroom, Foster struck her in the back of the head.

Foster was charged in five counts. Count I alleged aggravated battery, a Class 3 felony, based on the punch in the face resulting in the broken nose (720 ILCS 5/12-4(a), (e) (West 1998). Count II, where the jury entered a verdict of not guilty, alleged unlawful restraint, a Class 4 felony (720 ILCS 5/10-3 (West 1998). The next three counts charged Foster with domestic battery--subsequent offense felony, a Class 4 felony (720 ILCS 5/12-3.2(a)(1), (b) (West 1998). Count III was based on the punch in the face and the broken nose. Count IV was based on the grabbing of the wrist and twisting it. Count V was based on the punch in the back of the head. Counts III to V each referred to two prior misdemeanors and two prior felonies.

Foster was sentenced to five years on count I and an extended term of six years on each of counts III to V, all to run concurrent to one another.


Foster first argues that his convictions on counts I and III cannot stand because they are all predicated upon the same physical act, a single punch to Talley's nose. See People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845 (1977). The State does not disagree but argues that count III, upon which Foster received a six-year sentence, should be allowed to stand, and count I, upon which Foster received a five-year sentence, should be vacated, even though count I involved a Class 3 felony and count III involved only a Class 4 felony. Cf. People v. Olson, 128 Ill. App. 3d 560, 563, 470 N.E.2d 1176, 1179 (1984) (only the conviction for the most serious offense can stand). We have previously held that in the unusual situation where the trial court assigns a higher sentence to the offense given a less serious legislative classification, the conviction and sentence for the offense with the highest sentence should stand. People v. Lee, 311 Ill. App. 3d 363, 373, 724 N.E.2d 557, 565 (2000). In the present case, however, the six-year sentence on count III was an extended sentence. Extended sentences are available only for "the class of the most serious offense" of which the offender was convicted. (Emphasis added.) 730 ILCS 5/5-8-2(a) (West 1998). The extended sentence itself was improper here because Class 4 was not the class of the most serious offense of which Foster was convicted. People v. Jordan, 103 Ill. 2d 192, 205-06, 469 N.E.2d 569, 575 (1984). Accordingly, there can be no argument under Lee that count III was the most serious offense because of the greater sentence. Foster's conviction for count III must be vacated.


The State next argues that the remaining extended-term sentences may be upheld because they do not involve related courses of conduct. In People v. Coleman, 166 Ill. 2d 247, 255-56, 652 N.E.2d 322, 326 (1995), the Supreme Court of Illinois, noting the rule that an extended-term sentence may only be imposed for the conviction within the most serious class, considered whether the consolidation of unrelated charges at a plea and sentencing hearing restricts the sentencing alternatives that would otherwise be available in the case of a defendant convicted of multiple, unrelated criminal acts in separate prosecutions, concluding that it did not. This court subsequently determined that the appropriate test to determine whether offenses arise from unrelated courses of conduct for purposes of extended-term sentencing is the least restrictive test, the "multiple acts" test of People v. King. People v. Bell, 313 Ill. App. 3d 280, 285, 729 N.E.2d 531, 535 (2000). Under that test, offenses arise from an unrelated course of conduct whenever offenses are supported by more than one physical act, unless one offense is an included offense. People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845 (1977) (the one-act-one-crime test).

In applying the one-act-one-crime test, it is possible to find more than one act in almost every case. For example, when one individual strikes another, it may be possible to identify the clenching of the fist, the drawing back of the arm, and the forward movement of the fist as separate acts. The same blow may break the victim's jaw, twist the victim's back, and break the victim's arm when he falls to the ground. The factor of time is an additional complication. When a defendant unlawfully restrains an individual at 10:01, 10:02, and 10:03, are there three separate "acts" (or perhaps 180 separate acts if we look at each second)? A realistic view of the one-act-one-crime rule must be applied to comply with Coleman. The offenses in Coleman involved different victims, locations, dates and criminal objectives; thus, the offense clearly involved unrelated courses of conduct. People v. Strickland, 283 Ill. App. 3d 319, 324, 668 N.E.2d 1201, 1203 (1996). We should not apply a rule which defeats the legislative direction that there be an extended sentence only for the class of the most serious offense. 730 ILCS 5/5-8-2(a) (West 1998).

Here, application of the multiple acts test demonstrates that Foster's conviction for aggravated battery and his convictions for domestic battery--subsequent offense involved the same course of conduct. Foster's acts in twisting Talley's hand, punching her nose, and striking her in the back of her head were separated only by moments. They were perpetrated on the same victim, at the same location, and were all acts of battery. There were no intervening events. Foster was engaged in a single course of conduct, the beating of his girlfriend. Extended-term sentencing was therefore available only for the most serious class of offense, count I, the Class 3 aggravated battery. We vacate that portion of the sentences imposed for Foster's convictions on count IV and count V which exceed the nonextended statutory maximum sentence of three years' imprisonment.


The State concedes that the trial court did not hold a hearing before assessing $200 in counsel fees against Foster in conformity with statutory requirements (725 ILCS 5/113-3.1 (West 1998)) and that this part of the trial court's order must therefore be vacated. We vacate the trial court's payment order and remand for further proceedings. People v. Johnson, 297 Ill. App. 3d 163, 165, 696 N.E.2d 1269, 1270 (1998).


Finally, Foster contends that his fine under the Violent Crime Victims Assistance Act (Victims Assistance Act) (725 ILCS 240/10(c)(1) (West 1998)) was improper because it was not levied by judicial order. Foster argues that Public Act 89-688 (Pub. Act 89-688, ยง2, eff. June 1, 1997 (1996 Ill. Laws 3738)), which amends the statute to allow the circuit clerk to assess such penalties, ...

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