Appeal from the Circuit Court of Cook County. No. 98 CR 19923 The Honorable Ralph Reyna, Judge Presiding.
The opinion of the court was delivered by: Justice Cohen
Defendant Larry McDonald was indicted on two counts of the Class X felony of armed robbery and one count of the Class 3 felony of aggravated battery. 720 ILCS 5/18-2(a)(2) (West Supp. 1999); 720 ILCS 5/12-4(b)(10) (West 1998). The State nol-prossed the aggravated battery charge prior to trial. Following a bench trial, the trial court convicted McDonald of two counts of the Class 1 felony of aggravated robbery. 720 ILCS 5/18-5 (West 1998). Based on McDonald's prior criminal record, the trial court sentenced McDonald to an extended prison term of 28 years. 730 ILCS 5/5-5-3.2(b)(1), 5-8-2(a)(3) (West 1998). McDonald's posttrial motion for reduction of sentence was denied as untimely.
On appeal, McDonald contends that the trial court violated his right to due process of law by convicting him of aggravated robbery where aggravated robbery was neither a charged offense nor sufficiently alleged in the indictment against him. McDonald urges: (1) that we review this issue as a matter of plain error; (2) that we reduce his convictions to the Class 2 felony of robbery (720 ILCS 5/18-1 (West 1998)); and (3) that we remand the cause for a new sentencing hearing.
On November 13, 2000, we issued an order in this matter pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23). McDonald petitioned for rehearing. The order of November 13, 2000, was subsequently withdrawn to allow consideration of the petition for rehearing, as well as McDonald's motion for leave to cite additional authority, both of which are taken with the case. We hereby grant McDonald's motion for leave to cite additional authority and deny his petition for rehearing.
1. Sufficiency of Charging Instrument
In requesting that we review this matter under principles of plain error, McDonald concedes that because he failed to challenge his indictment either at trial or in a posttrial motion, he has otherwise waived the error. People v. Nathan, 282 Ill. App. 3d 608, 610 (1996). Plain error is
"marked by 'fundamental [un]fairness' [which] occurs only in situations which 'reveal breakdowns in the adversary system,' as distinguished from 'typical trial mistakes.' [Citation.] Put differently, what must be affected by the asserted error must be something 'fundamental to the integrity of the judicial process.' [Citation.] Essentially, the fairness of the trial must be undermined." People v. Keene, 169 Ill. 2d 1, 17 (1995).
Under the circumstances before us, McDonald's convictions are indeed the result of plain error and must be reversed.
It is axiomatic that no one may be convicted of an offense not expressly charged unless that offense is a lesser included offense of that which is expressly charged. People v. Hamilton, 179 Ill. 2d 319, 323 (1997); People v. Novak, 163 Ill. 2d 93, 105 (1994); People v. Jones, 293 Ill. App. 3d 119, 127 (1997), leave to appeal denied, 176 Ill. 2d 584 (1998). The trial court convicted McDonald of two counts of aggravated robbery, an uncharged Class 1 felony. 720 ILCS 5/18-5 (West 1998). These convictions may only be upheld if we find aggravated robbery to be a lesser included offense of the charged offense of armed robbery. Hamilton, 179 Ill. 2d at 323; Jones, 293 Ill. App. 3d at 127. In Jones, we addressed the question of whether aggravated robbery is a lesser included offense of armed robbery in the context of whether the defendant was entitled to a lesser included offense jury instruction:
"In considering whether a crime is a lesser included offense of another, Illinois follows a 'charging instrument' analysis. [Citation.] Under this approach, an offense is determined to be a lesser included offense, not by analyzing the statutory elements of the crimes involved and the possible theoretical ways in which [the] charged offense and alleged lesser included offense could be committed, but rather by comparing the charging instrument to the alleged lesser included offense to see whether the charging instrument sufficiently describes the 'foundation' or 'main outline' of that offense. [Citation.]" Jones, 293 Ill. App. 3d at 128, citing Novak, 163 Ill. 2d at 107, 112.
Therefore, aggravated robbery may be found to be a lesser included offense of armed robbery in any given prosecution: the precise language of the charging instrument is determinative. In order to support McDonald's aggravated robbery convictions, the indictment against him must be found to sufficiently allege the "foundation" or "main outline" of the offense of aggravated robbery. Jones, 293 Ill. App. 3d at 128.
Armed robbery and aggravated robbery require different elements of proof. The elements of the offenses differ in that armed robbery requires that a defendant "carr[y] on or about his or her person or [be] otherwise armed with a firearm," while aggravated robbery requires that a defendant "indicat[e] verbally or by his or her actions to the victim that he or she is presently armed with a firearm or other dangerous weapon." 720 ILCS 5/18-2(a)(2) (West Supp. 1999); 720 ILCS 5/18-5(a) (West 1998).
The indictment in Jones alleged armed robbery as follows:
" 'Robert Jones committed the offense of armed robbery in that he, by the use of force or by threatening the imminent use of force while armed with a dangerous weapon, to wit: a handgun[,] took United States currency from the person or ...