                                         2014 IL App (1st) 130020
                                            No. 1-13-0020
                                     Opinion filed October 29, 2014
                                                                       Third Division
     ______________________________________________________________________________

                                                IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT

     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,                )      Appeal from the Circuit Court
                                                         )      of Cook County.
            Plaintiff-Appellee,                          )
                                                         )
     v.                                                  )      No. 11 CR 10027
                                                         )
     KRYSTAL SPENCER,                                    )
                                                         )      The Honorable
            Defendant-Appellant.                         )      Nicholas Ford,
                                                         )      Judge, presiding.
     ______________________________________________________________________________

            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Lavin and Mason concurred in the judgment and opinion.


                                                 OPINION

¶1           Defendant, Krystal Spencer, fraudulently acquired cellular telephones from T-Mobile

     and then sold them. During a sale of phones to Jesus Ruiz, he was robbed. The State accused

     Spencer of setting up the sale with Ruiz and then working with three individuals to stage Ruiz's

     robbery. The defense claimed Spencer's roommate, who was with her at the time of the robbery,

     set up the robbery without her knowledge. After a bench trial, Spencer was convicted of armed

     robbery with a dangerous weapon other than a firearm and aggravated unlawful restraint based

     on accountability.
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¶2          Spencer contends the trial court violated her right to due process by convicting her of the

     uncharged offense of armed robbery with "a dangerous weapon other than a firearm" (720 ILCS

     5/18-2(a)(1) (West 2010)), because the offense was not a lesser-included offense of the charged

     offense of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)). We agree. The

     elements of the two offenses markedly differ. We vacate her conviction, enter judgment on the

     appropriate lesser-included offense of robbery, and remand for sentencing on that conviction.

¶3          Additionally, Spencer claims, and the State concedes, that her conviction for aggravated

     unlawful restraint must be vacated because it was based on the same physical act used to obtain

     her armed robbery conviction. We vacate Spencer's conviction and sentence for aggravated

     unlawful restraint, the lesser offense, as a violation of the one-act, one-crime rule.

¶4                                            BACKGROUND

¶5          The State charged Spencer by information with armed robbery while armed with a

     firearm and aggravated unlawful restraint. Under section 18-2(a)(2) of the Criminal Code of

     1961 (Code) (720 ILCS 5/18-2(a)(2) (West 2010)), the information alleged Spencer, based on an

     accountability theory, knowingly took property—cash, wallet, credit cards and cell phone—from

     Ruiz "by the use of force or by threatening the imminent use of force and she carried on or about

     her person or was otherwise armed with a firearm."

¶6          At trial, Jesus Ruiz testified he bought and sold electronics, including cellular telephones,

     as a side business. He often answered advertisements on Craig's List. Ruiz contacted the sellers

     by phone or text message, agreed on a price, and then would meet to complete the transaction.

     On April 4, 2011, Ruiz went to a parking lot on West Roosevelt to meet Spencer and purchase

     cell phones from her. Ruiz testified that earlier that day, Spencer text messaged him that she had

     phones she was willing to sell. The two agreed on a price and decided to meet. Ruiz arrived at


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     the agreed location with his girlfriend, Veronica Delgado, at 12:30 p.m. He text messaged

     Spencer he was there. When Spencer arrived around 1:15 p.m., she approached Ruiz's car. He

     did not recall meeting Spencer before that day but testified he meets a lot of people in his

     business.

¶7          Ruiz testified Spencer held a bag with some boxes in it and that when he moved toward

     her to look at the phones, she said she had more in her car. She pointed to a blue Oldsmobile,

     which was parked about two lanes away. Spencer told Ruiz, "let's go to my car." He walked

     over with her. A female was in the driver's seat of the Oldsmobile. Ruiz entered the front

     passenger seat of the car and asked where the other phones were. When he sat down, he noticed

     the driver had a bat and a wooden stick with her. Ruiz left the car door open "just in case."

     Spencer came back from the trunk area and got in the backseat, behind the driver. Ruiz looked at

     Spencer to see what phones she had.

¶8          While looking at Spencer, Ruiz felt someone grab him from outside the passenger side of

     the car. The person grabbed Ruiz with one hand and pointed a gun at his chest. Ruiz testified he

     saw two black males. Ruiz testified the gun was pointed at his chest and he could feel it because

     it was heavy. Ruiz described the gun as "hard like metal." He testified he could see the chamber

     and the wooden handle. Ruiz described the gun as a seven-inch-long revolver. With the gun at

     Ruiz's chest, the men told him to give them "everything he had." They took his cash and his

     wallet with his credit cards. The woman in the driver's seat took his cell phone. The men yelled

     at him to get out of the car, which he did. Spencer remained in the backseat and said nothing as

     the men got into the car and drove away with Ruiz's belongings.

¶9          Ruiz returned to his car and called 911. Ruiz testified the entire incident lasted five

     minutes. He identified Spencer from a photographic array and in a lineup.


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¶ 10           During cross-examination, Ruiz said he exchanged text messages with Spencer 15 to 20

       times while they were setting up the April 4 sale. Ruiz then reviewed telephone records, which

       showed he received calls from Spencer's phone on Christmas Day in 2010. Ruiz could not recall

       the purpose of those calls. The phone records showed Ruiz and Spencer exchanged a total of 86

       text messages between December 24, 2010, and April 4, 2011. Ruiz denied that he met Spencer

       30 or 35 times to buy phones from her. He testified that he bought phones from 200 different

       people during the two-year period. He did not know if the cell phones Spencer sold him were

       stolen. She told him she obtained them from her account.

¶ 11           Veronica Delgado testified consistently with Ruiz's version of what happened. Delgado

       watched as Ruiz went with Spencer to the Oldsmobile. Delgado saw two black men walking

       quickly toward Spencer's car at the same time. Delgado testified she looked at Spencer, who was

       "kind of like shaking her head," like she was saying "no" and that is when the two men stopped

       approaching. Delgado then lost sight of Spencer and Ruiz. When Ruiz returned five minutes

       later, he was pale and nervous. When she asked him what was wrong, he said he had been

       robbed. Ruiz called 911. Delgado identified Spencer from a lineup.

¶ 12           The State rested and defense counsel moved for a directed finding, which the court

       granted, in part:

                           "I'm going to grant it as it relates to the firearm. I don't believe at this time

                       that I can find—no weapon was recovered—beyond a reasonable doubt that a

                       firearm was in use during the course of this offense. So that aggravated factor

                       which would enhance her sentence to a minimum of 21 years is now not present."




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¶ 13          Spencer testified that before her arrest in this case, she was living with a friend, Summer

       Smith. She denied taking part in the robbery and explained that she had met Ruiz 30 to 40 times

       to sell him cell phones, normally meeting him at the BP gas station at State and Roosevelt.

¶ 14          According to Spencer, the cell phones she resold were obtained by misrepresenting

       herself to T-Mobile as a representative to get existing customers' account numbers. She would

       then order the phones from T-Mobile and charge them to the accounts she misrepresented she

       was calling on behalf of. She had the phones delivered to her address. Spencer testified she kept

       all of the information and account numbers in a notebook at her apartment to which Smith had

       access. Sometimes Smith would order phones so that the voice would be different in case the

       same T-Mobile employee answered. Spencer did not advertise she sold phones, but Ruiz found

       her. She testified he advertised that he was a buyer of 3G HTC phones and he set the prices he

       would pay for certain phones. Spencer first sold phones to Ruiz in June 2010 and made between

       $6,000 and $7,000 from him. She claimed she usually contacted him by text message. Spencer

       reviewed the phone records and testified that she called Ruiz on Christmas to sell him two

       phones, so she could have holiday money. She recalled that they met on Christmas for the

       transaction.

¶ 15          Spencer's text messages to Ruiz on April 4, 2011, between 8 and 11 a.m. were not from

       Spencer because she had left her cell phone in her roommate's room to charge. Spencer testified

       her roommate, Smith, knew how to contact Ruiz because Smith normally drove her to meet Ruiz.

       The morning of April 4, Smith asked Spencer if she wanted to go shopping. Spencer told Smith

       she wanted to go to a PetSmart in Aurora. Smith insisted they go to a certain FedEx store to get

       directions beforehand. When they arrived at the parking lot for the FedEx store, Spencer got out

       of the car and walked toward the store. She saw Ruiz, who asked if she had any phones. At


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       trial, Spencer claimed she was surprised to see Ruiz. She testified she told him she would not

       have anything for him until the end of the week. He responded that he had received text

       messages from her and she had called to schedule a meeting with him in the parking lot. Spencer

       testified she told Ruiz she did not text him and she did not know what he was talking about.

       Spencer claimed she told Ruiz her roommate had her phone and she was "fitting to go concern

       her about it."

¶ 16            Spencer then walked back to Smith's car and Ruiz followed. She asked Smith if she had

       text messaged Ruiz and Smith replied that she had. Smith told Spencer she had cell phones in

       the trunk for Ruiz. Spencer went to the trunk while Ruiz sat in the front passenger seat. Spencer

       got a bag out of the trunk and then got into the car behind the driver. She testified that as she

       looked in the bag, two black males, whom she had never seen, approached and started taking

       Ruiz's belongings.    She testified the two men pinned Ruiz and went through his pockets.

       Spencer claimed she just sat back, shocked by the whole incident. The men then pulled Ruiz out

       of the car, got in and Smith drove out of the parking lot. Spencer testified that she was not able

       to get out of the car until it stopped at a gas station. When it did, she got out, took a bus to her

       apartment, packed her things and went to live with her grandmother. Spencer testified the last

       time she saw Smith was on April 5, 2011, when she went back to their apartment to get her

       phone.

¶ 17            During cross-examination, Spencer admitted that she and Smith did not pay rent for the

       apartment they shared. She also admitted she was unemployed. Spencer described it as just a

       coincidence that she saw Ruiz in the parking lot on April 4 and claimed she never walked up to

       his car. She also denied telling Ruiz to follow her to Smith's car. She explained that she did not

       say anything while the two men robbed Ruiz because she was scared and believed they were all


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       being robbed. She did not see the men with a gun or weapon, and did not hear the men say

       anything. As they drove away, Smith asked the two men what they got from Ruiz. Spencer

       admitted she never contacted the police or Ruiz after the incident.

¶ 18          During closing, defense counsel argued Spencer was set up by her roommate. Counsel

       argued it did not make sense for Spencer to orchestrate the robbery of Ruiz when he was a "cash

       cow" for her cell phone sales. The State argued that under an accountability theory, Spencer was

       guilty of armed robbery because she set Ruiz up.

¶ 19          The trial court convicted Spencer of armed robbery. In doing so, the court said her

       testimony "really failed from a credibility standpoint profoundly so." The trial court called

       Spencer's version "preposterous." Commenting on the evidence, the trial court stated:

                          "What I'm going to find today happened beyond a reasonable doubt. What I

                      believe the State's evidence is that Mr. Ruiz met for this clandestine wholesale

                      was that he was robbed by Ms. Spencer and a group of people with whom she was

                      working. So there will be a finding of guilt as to the offense of armed robbery. I

                      already indicated previously I'm not going to find that firearm enhancement. No

                      weapon was recovered in this case. I couldn't find beyond a reasonable doubt that

                      there was a weapon used. And I will also find her guilty of aggravated unlawful

                      restraint."

¶ 20          Before sentencing, the State requested that the presentence investigation (PSI) be

       corrected because the charge listed the offense as "Armed Robbery with a Firearm," rather than

       "Armed Robbery with a Dangerous Weapon." The court responded, "Right. No gun was

       recovered in the case. Very fortunate for Ms. Spencer and as a result of [counsel's] excellent




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       cross-examination of the witnesses did not find that a firearm had been used in this case beyond

       a reasonable doubt. "

¶ 21          The court sentenced Spencer to eight years' imprisonment for armed robbery with a

       dangerous weapon other than a firearm and three years' for aggravated unlawful restraint, to run

       concurrently.

¶ 22                                               ANALYSIS

¶ 23                   Conviction for Armed Robbery with Dangerous Weapon other than Firearm

¶ 24            Spencer argues her conviction for armed robbery with a dangerous weapon other than a

       firearm must be vacated because the offense was neither charged in the information nor a lesser-

       included offense of armed robbery with a firearm, which was charged. The State responds that

       Spencer has forfeited this claim by failing to object to the trial court's finding of guilt and failing

       to include the error in her posttrial motion. Spencer acknowledges she failed to preserve the

       issue for review, but requests that we review the issue under the plain error doctrine or,

       alternatively, find that trial counsel provided ineffective assistance of counsel by failing to object

       to the court's finding of guilt on the uncharged offense.

¶ 25          The State contends we should not review this error as it is invited error. The State

       speculates trial counsel chose not to object to Spencer's conviction for armed robbery with a

       weapon other than a firearm because an objection would have led the court to overturn its

       acquittal of the charged offense—armed robbery with a firearm.

¶ 26          The doctrine of invited error does not apply. Under the doctrine, "an accused may not

       request to proceed in one manner and then later contend on appeal that the course of action was

       in error." People v. Carter, 208 Ill. 2d 309, 319 (2003). For the doctrine to apply, the defendant

       must affirmatively request or agree to proceed in a certain way. People v. Harvey, 211 Ill. 2d


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       368, 385 (2004) (distinguishing between a defendant's failure to object and a defendant's active

       participation in direction of proceedings).

¶ 27           Defense counsel failed to object to the trial court's ruling, but counsel did not

       affirmatively request or accept the conviction for the uncharged offense. Counsel argued for a

       general acquittal, contending the State failed to prove Spencer guilty of any crime. Counsel

       never argued the court should convict Spencer of armed robbery with a dangerous weapon other

       than a firearm rather than the charged offense. Counsel's failure to object to the court's finding is

       forfeiture, not invited error.

¶ 28           When a defendant fails to object to an error at trial and include the error in a posttrial

       motion he or she forfeits ordinary appellate review of that error. People v. Johnson, 238 Ill. 2d

       478, 484 (2010) (citing People v. Enoch, 122 Ill. 2d 176, 186 (1988)). Consequently, Spencer

       forfeited her challenge to this issue by failing to object and raise the claim in a posttrial motion.

¶ 29           Under Illinois's plain error doctrine, a reviewing court may consider a forfeited claim

       when " '(1) a clear or obvious error occurred and the evidence is so closely balanced that the

       error alone threatened to tip the scales of justice against the defendant, regardless of the

       seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it

       affected the fairness of the defendant's trial and challenged the integrity of the judicial process,

       regardless of the closeness of the evidence.' " Johnson, 238 Ill. 2d at 484 (quoting People v.

       Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)).

¶ 30         The doctrine is intended to ensure a defendant receives a fair trial, but it does not

       guarantee a perfect trial. Johnson, 238 Ill. 2d at 484. The doctrine does not operate as a general

       savings clause but, instead, constitutes a narrow and limited exception to the typical forfeiture

       rule applicable to unpreserved claims. Id.


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¶ 31             We typically undertake plain error analysis by first determining whether error occurred

       at all before proceeding to consider whether either prong of the doctrine has been satisfied.

       People v. Sargent, 239 Ill. 2d 166, 189-90 (2010). The burden of persuasion rests with the

       defendant under both prongs of the plain error doctrine. Id. at 190.

¶ 32             In arguing there was no error, the State acknowledges Spencer was not charged with

       armed robbery with a dangerous weapon other than a firearm. The State claims, however, that

       under the charging instrument approach, armed robbery with a dangerous weapon other than a

       firearm is a lesser-included offense of armed robbery with a firearm and, therefore, Spencer's

       conviction is proper.

¶ 33             Due process prohibits a defendant from being convicted of an uncharged offense unless

       that offense is a lesser-included offense of a charged offense. People v. Kolton, 219 Ill. 2d 353,

       360-61 (2006). The Code provides that a lesser-included offense is "established by proof of the

       same or less than all of the facts or a less culpable mental state (or both), than that which is

       required to establish the commission of the offense charged." 720 ILCS 5/2-9 (West 2010); see

       also People v. Hamilton, 179 Ill. 2d 319, 324 (1997). Whether an uncharged offense is a lesser-

       included offense of a charged offense is a question of law we review de novo. Kolton, 219 Ill. 2d

       at 361.

¶ 34             Seeking reversal, Spencer relies on People v. Barnett, 2011 IL App (3d) 090721, in

       which the Third District held that a charge of robbery while armed with a dangerous weapon

       other than a firearm (720 ILCS 5/18-2(a)(1) (West 2008)) was not a lesser-included offense of

       armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2008)). The Barnett

       court found the two offenses to be mutually exclusive. The court found the offenses contain

       different elements and, therefore, the offense of robbery while armed with a dangerous weapon


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       other than a firearm cannot be a lesser-included offense of armed robbery with a firearm.

       Barnett, 2011 IL App (3d) 090721, ¶ 38. The court noted that had the State elected to charge the

       defendant with both offenses, the conviction for armed robbery would have been affirmed.

       Barnett, 2011 IL App (3d) 090721, ¶ 34.

¶ 35          The State responds that under the charging instruction approach set forth in People v.

       Kolton, 219 Ill. 2d 353 (2006), Spencer was properly convicted of a lesser-included offense of

       the charged offense.

¶ 36          In Kolton, our supreme court expanded the application of the charging instrument

       approach to allow any charge that can "reasonably be inferred" from the charging instrument to

       be considered a lesser-included offense of the charged offense. Kolton, 219 Ill. 2d at 367. The

       defendant was charged with predatory criminal sexual assault of a child and acquitted of the

       charged offense because the State failed to prove sexual penetration occurred. Kolton, 219 Ill. 2d

       at 356. The defendant was then convicted of the uncharged offense of aggravated criminal

       sexual abuse, which, unlike the charged offense, does not require penetration but does require the

       act to be committed "for the purpose of sexual gratification or arousal." Id. at 369. The

       defendant argued aggravated criminal sexual abuse was not a lesser-included offense of

       predatory criminal sexual assault of a child because the charged offense contained no

       requirement that sexual penetration be committed for the purpose of sexual gratification. Id. at

       369-70. The supreme court disagreed with the defendant's reading of the two charges and found

       that the requirement of sexual gratification was implicit in "sexual penetration." Id. at 369-71.

       The court found it "appropriate to allow for such an inference to be drawn in instances such as

       this because the element—that a defendant acted 'for the purpose of sexual gratification'—is




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       something that is typically inferred from the circumstances used to prove the alleged act." Id. at

       370-71.

¶ 37          The State claims that just as sexual gratification is implicit in sexual penetration, armed

       robbery with a dangerous weapon is implicit in the charge of armed robbery with a firearm.

¶ 38          Defendant argues the State's position is "nonsensical" because the charge of armed

       robbery with some weapon other than a firearm "specifically excludes" the charged offense of

       armed robbery with a firearm. (Emphasis in original.). Recognizing the supreme court in Kolton

       found that sexual penetration nearly always involves an intent to receive sexual gratification,

       defendant argues, in contrast, "an item that is not a firearm is never an item that is a firearm."

       (Emphasis in original.).

¶ 39          The plain language of the armed robbery statute and the charging instrument

       demonstrates that armed robbery with a dangerous weapon other than a firearm is a separate and

       distinct offense from armed robbery with a firearm—not a lesser-included offense. See Barnett,

       2011 IL App (3d) 090721, ¶ 37.

¶ 40          Using the approach outlined in Kolton, we agree with Spencer that is it not reasonable to

       infer that when the State charged her with possessing a firearm, she should have anticipated that

       the State could prove the opposite—that the item was a dangerous weapon other than a firearm.

       A firearm cannot simultaneously be a firearm and something other than a firearm in the same

       way that a square cannot simultaneously be a circle and something other than a circle. It is

       logically impossible.

¶ 41          The State also relies on People v. Washington, 2012 IL 107993, for its contention that

       armed robbery with a dangerous weapon other than a firearm is a lesser-included offense of

       armed robbery with a firearm. The State's reliance, however, is misplaced. Washington relies on


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       an earlier version of the armed robbery statute, before the legislature divided armed robbery with

       a dangerous weapon other than a firearm and armed robbery with a firearm into two different

       crimes. Washington, 2012 IL 107993, ¶¶ 5-9 (defendant was charged under pre-2000 version of

       armed robbery statute which required State prove only that defendant carried a "dangerous

       weapon"); see also People v. McBride, 2012 IL App (1st) 100375, ¶¶ 25-26 (decisions

       interpreting pre-2000 version of statute offer no guidance as to post-2000 version).

¶ 42          We analyzed the current statute in Barnett and held that armed robbery with a dangerous

       weapon other than a firearm is not a lesser-included offense of armed robbery with a firearm.

       Barnett, 2011 IL App (3d) 090721, ¶ 38. A conviction under section 18-2 (a)(1) requires proof

       that the weapon was dangerous. This is not a factor under section 18-2(a)(2), which requires

       only that the State prove the weapon was a firearm. Id. ¶¶ 37-38. The Barnett court reasoned

       that if a defendant is charged with armed robbery with a dangerous weapon other than a firearm

       under section 18-2(a)(1), the weapon cannot be a firearm because the clear language of the

       statute directs that those sections are mutually exclusive of each other. Id.

¶ 43          The State's argument that Spencer was adequately apprised of the charge against her

       when she was charged with armed robbery with a firearm under section 18-2(a)(2) of the statute,

       but convicted of armed robbery with a dangerous weapon other than a firearm under section 18-

       2(a)(1), is unpersuasive. The information charging Spencer referred only to armed robbery with

       a firearm. A dangerous weapon other than a firearm cannot be reasonably inferred from the

       information.    Hence, the trial court improperly considered sua sponte whether Spencer

       committed armed robbery with a dangerous weapon other than a firearm.

¶ 44          Having found error, we must determine whether Spencer satisfied either prong for the

       plain error doctrine, such that the error may be considered. Spencer does not argue plain error


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       under the first prong—that the evidence is so closely balanced that the guilty verdict may have

       resulted from the error—rather, she contends the court's error affected the fairness of her trial and

       challenged the integrity of the judicial process—the second prong.

¶ 45          The State argues Spencer has not satisfied the second prong of the plain error doctrine

       because the claimed error was not structural. We agree.

¶ 46          An error is reversible under the second prong of the plain error doctrine only when the

       error is "structural, i.e., a systemic error which serves to erode the integrity of the judicial

       process and undermine the fairness of the defendant's trial." (Internal quotation marks omitted.)

       People v. Thompson, 238 Ill. 2d 598, 613-14 (2010). Structural errors are rare and have only

       been recognized in cases involving "a complete denial of counsel, trial before a biased judge,

       racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial

       of a public trial, and a defective reasonable doubt instruction." Id. at 609. Accordingly, even

       though the trial court erred by considering sua sponte whether Spencer committed armed robbery

       with a dangerous weapon other than a firearm, the error is not reversible under the second prong

       of the plain-error doctrine.

¶ 47                                            Ineffective Counsel

¶ 48          Spencer's conviction, however, must be vacated. Not because the court's error affected

       the integrity of the trial process, but because trial counsel was ineffective for failing to object to

       the trial court's improper finding of guilt on the uncharged offense.

¶ 49          Claims of ineffective assistance of counsel are resolved under the standard set forth in

       Strickland v. Washington, 466 U.S. 668 (1984). People v. Albanese, 104 Ill. 2d 504, 525 (1984).

       Under Strickland, a defendant must show that counsel's performance was deficient and that he or

       she was prejudiced because of it. Strickland, 466 U.S. at 687. To show deficient representation,


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       a defendant must establish that counsel's performance fell below an objective standard of

       reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001). To establish prejudice, the

       defendant must show there is a reasonable probability that, but for counsel's deficient

       representation, the result of the proceeding would have been different. "A reasonable probability

       is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694;

       see People v. Spann, 332 Ill. App. 3d 425, 437 (2002) (motion to quash arrest and suppress

       evidence would have had a reasonable probability of success and, therefore, counsel's failure to

       present one was ineffective); see also People v. Gallagher, 2012 IL App (1st) 101772, ¶29 (trial

       counsel found ineffective for failing to request an instruction on a lesser-included offense where

       evidence supported it).

¶ 50          The State could have charged Spencer with both types of robbery. If the State had done

       so, a conviction for armed robbery with a dangerous weapon other than a firearm could—if

       proven—have been proper. In light of the State's failure to charge Spencer with committing a

       robbery with a dangerous weapon other than a firearm, however, the court's only option was to

       find Spencer guilty of robbery. Trial counsel's failure to object when the trial court improperly

       found Spencer guilty of an uncharged offense that was not a lesser-included offense of the

       charged offense was not reasonable. Had counsel objected to the trial court's improper finding,

       the result of the proceeding would not have been Spencer being found guilty but, rather, a

       conviction of the actual lesser-included offense, i.e. robbery.        Hence, Spencer received

       ineffective assistance of counsel and, as such, the error requires that her conviction for armed

       robbery with a dangerous weapon other than a firearm be vacated and that the matter be

       remanded for resentencing.




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¶ 51          Accordingly, we vacate Spencer's conviction for armed robbery, reduce it to robbery (720

       ILCS 5/18-1(a) (West 2010), a lesser-included offense of the charged offense, and remand the

       cause for a new sentencing hearing.

¶ 52                                         One Act, One Crime

¶ 53          Spencer contends, and the State concedes, that her conviction for aggravated unlawful

       restraint should be vacated under the one-act, one-crime rule because both her convictions were

       carved from the same physical act—the robbery of Ruiz. We agree with the parties.

¶ 54          Under the one-act, one-crime rule, a defendant may not be convicted of multiple offenses

       based on the same physical act. If a defendant is so convicted, the conviction for the less serious

       offense must be vacated. People v. Johnson, 237 Ill. 2d 81, 97 (2010). Accordingly, we vacate

       Spencer's conviction and sentence for aggravated unlawful restraint. Ill. S. Ct. R. 615(b) (1);

       People v. McCray, 273 Ill. App. 3d 396, 403 (1995).

¶ 55                                            CONCLUSION

¶ 56          We exercise our authority under Illinois Supreme Court Rule 615(b)(3) and reduce

       Spencer's conviction to the lesser-included offense of robbery (720 ILCS 5/18-1(a) (West 2010))

       and remand the matter to the trial court for sentencing.

¶ 57          Under the one-act, one-crime rule, we vacate Spencer's conviction and sentence for

       aggravated unlawful restraint.

¶ 58          Convictions vacated, new conviction of lesser-included offense of robbery entered, and

       case remanded for sentencing.




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