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The People of the State of Illinois v. Theron W. Vlahon

October 11, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
THERON W. VLAHON,
DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County No. 09CF647 Honorable John Madonia, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Steigmann and Cook concurred in the judgment and opinion.

OPINION

¶ 1 Following a November 2010 jury trial, defendant, Theron W. Vlahon, was convicted of home invasion, aggravated domestic battery, violating an order of protection, and aggravated battery. The trial court merged the aggravated-battery conviction with the aggravated-domestic-battery conviction and entered judgment of conviction for home invasion, aggravated domestic battery, and violating an order of protection. In March 2011, the court sentenced defendant to concurrent prison terms of 23 years for home invasion, 7 years for aggravated domestic battery, and 364 days for violating an order of protection. A term of four years' mandatory supervised release (MSR) attached to defendant's aggravated-domestic-battery conviction.

¶ 2 Defendant appeals, arguing (1)(a) he was denied his right to elect under which statute he should have been sentenced in violation of the ex post facto doctrine or (b) trial counsel was ineffective for failing to ensure defendant was aware of his right to elect; (2) he is entitled to per diem credit against his fines; and (3) he is entitled to a recalculation of his violent-crime-victim-assistance (VCVA) assessment.

¶ 3 We affirm as modified and remand with directions.

¶ 4 I. BACKGROUND

¶ 5 On July 22, 2009, the State charged defendant with home invasion, a Class X felony (count I) (720 ILCS 5/12-11(a)(1), (c) (West 2008)); aggravated domestic battery, a Class 2 felony (count II) (720 ILCS 5/12-3.3(a), (b) (West 2008)); criminal damage to property, a Class 4 felony (count III) (720 ILCS 5/21-1(1)(a), (2) (West 2008)); interfering with reporting domestic violence, a Class A misdemeanor (count IV) (720 ILCS 5/12-6.3(a), (c) (West 2008)); and a violation of an order of protection, a Class A misdemeanor (count V) (720 ILCS 5/12-30(a)(1), (d) (West 2008)). On July 27, 2009, the State added a charge of aggravated battery, a Class 1 felony (count VI) (720 ILCS 5/12-4(a), (e)(3) (West 2008)). All charges stemmed from a July 20, 2009, incident where defendant entered his wife's residence through a window and inflicted physical injuries upon her resulting in her hospitalization for five days. Her injuries included a broken nose, hyoid bone, and C1 vertebra, as well as a concussion and neck hematomas.

¶ 6 In November 2010, defendant's jury trial on all charges commenced. Prior to the close of evidence, the State dismissed count III, criminal damage to property. The jury found defendant guilty of home invasion (count I), aggravated domestic battery (count II), violating an order of protection (count V), and aggravated battery (count VI), and not guilty of interfering with the reporting of domestic violence (count IV). The trial court merged the aggravated-battery conviction with the aggravated-domestic-battery conviction and entered judgment of conviction on home invasion (count I), aggravated domestic battery (count II), and violation of an order of protection (count V).

¶ 7 On March 8, 2011, defendant's December 2010 posttrial motion was heard and denied by the trial court. Following denial of defendant's motion, the court conducted the sentencing hearing. The State asked for a 30-year prison sentence with a finding of great bodily harm, and noted "because of the conviction for [a]ggravated [d]omestic [b]attery, the MSR, upon release, would be four years." Defense counsel requested a prison sentence in the 10-year range. The court sentenced defendant to concurrent terms of 23 years in prison for home invasion, 7 years for aggravated domestic battery, and 364 days for violating the order of protection. The court noted defendant would be required to serve four years on MSR at the conclusion of his imprisonment.

¶ 8 On March 11, 2011, a hearing was held to determine whether defendant should be required to pay restitution. The trial court ordered defendant to pay $440 in restitution to his wife and imposed fines and costs of $560. No post-sentencing motion was filed.

¶ 9 This appeal followed.

¶ 10 II. ANALYSIS

ΒΆ 11 On appeal, defendant argues (1)(a) he was denied his right to elect under which statute he should have been sentenced in violation of the ex post facto doctrine or (b) trial counsel was ineffective for failing to ensure defendant was aware of his right to elect; (2) he is entitled to per diem credit ...


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