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People v. O'Brien

Court of Appeals of Illinois, Second District

July 18, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ROGER C. O'BRIEN, Defendant-Appellant.

          Appeal 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.

          OPINION

          SCHOSTOK, JUSTICE

         ¶ 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 conviction.

         ¶ 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 Clarner.

         ¶ 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 5/12-3.05(d)(1)."

         Significantly, 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 indictment.

         ¶ 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 ...


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