from the Circuit Court of De Kalb County. No. 15-CF-281
Honorable William P. Brady, Judge, Presiding.
Attorneys for Appellant: James E. Chadd, Thomas A. Lilien,
and Phyllis J. Perko, of State Appellate Defender's
Office, of Elgin, for appellant.
Attorneys for Appellee: Richard D. Amato, State's
Attorney, of Sycamore (Patrick Delfino, David J. Robinson,
and Sally A. Swiss, of State's Attorneys Appellate
Prosecutor's Office, of counsel), for the People.
JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion. Justice Jorgensen concurred in the judgment and
opinion. Justice Hutchinson dissented, with opinion.
1 Defendant, Roger C. O'Brien, appeals from his
convictions of aggravated battery (720 ILCS 5/12-3.05(a)(4)
(West 2014)) and aggravated domestic battery (id.
§ 12-3.3(a)). He argues on appeal that (1) the
prosecution was barred by the prohibition against double
jeopardy, (2) the prosecution deprived him of the benefit of
a plea agreement with the State, and (3) one of his
convictions must be vacated pursuant to the one-act,
one-crime rule. We affirm in part and remand to the trial
court with directions to vacate defendant's lesser
2 I. BACKGROUND
3 A De Kalb County grand jury returned a four-count
indictment against defendant. Count I charged defendant with
aggravated battery, specifying section 12-3.05(d)(1) of the
Criminal Code of 2012 (Code) (id. §
12-3.05(d)(1)) as the statutory basis for the charge. Count
II charged defendant with aggravated domestic battery
(id. § 12-3.3(a)), a probationable Class 2
felony (id. § 12-3.3(b)). Counts III and IV
charged defendant with domestic battery (id. §
12-3.2(a)(1)). All four counts arose from an altercation
between defendant and his 80-year-old stepfather, Robert
4 Defendant and the State entered into an agreement pursuant
to which defendant would plead guilty to count I of the
indictment and the remaining counts would be dismissed. Count
I of the indictment stated, in pertinent part, as follows:
"ROGER C. O'BRIEN committed the offense of
AGGRAVATED BATTERY (Class 2 FELONY), in that said defendant
KNOWINGLY CAUSED GREAT BODILY HARM TO ROBERT CLARNER IN THAT
SAID DEFENDANT STRUCK ROBERT CLARNER MULTIPLE TIMES IN THE
FACE WITH HIS FISTS CAUSING LACERATIONS AND NOSE FRACTURES,
AT A TIME WHEN SAID DEFENDANT KNEW ROBERT CLARNER TO BE A
PERSON 60 YEARS OF AGE OR OLDER, in violation of Chapter 720,
section 12-3.05(d)(1) of the Code requires proof that the
defendant committed a battery with knowledge that the victim
was 60 years of age or older; it does not require proof of
great bodily harm. Id. § 12-3.05(d)(1).
Although the indictment stated that the offense was a Class 2
felony, a violation of section 12-3.05(d)(1) is actually a
Class 3 felony. Id. § 12-3.05(h). On the other
hand, the factual allegations of count I set forth the
elements of aggravated battery as defined in section
12-3.05(a) (4) of the Code (id. § 12-3.05(a)
(4) (a person commits aggravated battery when, in committing
a battery, he or she knowingly" [c]auses great bodily
harm *** to an individual 60 years of age or older")),
which is a Class 2 felony (id. §
12-3.05(h)). Furthermore, probation is not an authorized
sentence for a violation of section 12-3.05(a) (4). 730 ILCS
5/5-5-3 (c)(2)(I) (West 2014).
5 Defendant entered his guilty plea on January 29, 2016.
Before he did so, the trial court admonished him that the
sentencing range "begins at placing you on some form of
probation and it can go all the way up to the most serious
charge, which is commitment to the Illinois Department of
Corrections for a period of time not less than three, no more
than seven years." After defendant entered his guilty
plea, the trial court dismissed counts II, III, and IV of the
6 On March 28, 2016, the State moved to amend count I of the
indictment by changing the statutory citation therein from
section 12-3.05(d) (1) of the Code to section 12-3.05(a) (4).
For the reasons discussed above, the amendment would make
defendant ineligible for a sentence of probation. The trial
court granted the motion over defendant's objection.
However, the trial court concluded that, because defendant
had been admonished that probation was an authorized
sentence, he was entitled to withdraw his plea and proceed to
trial. Defendant chose to do so, and counts II, III, and IV
were reinstated. The matter proceeded to a bench trial, at
which the trial court found defendant guilty on all four
counts of the indictment. The trial court entered a judgment
of conviction on only counts I ...