                                  Illinois Official Reports

                                          Appellate Court



                             People v. Spencer, 2014 IL App (1st) 130020



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      KRYSTAL SPENCER, Defendant-Appellant.


District & No.               First District, Third Division
                             Docket No. 1-13-0020


Filed                        October 29, 2014


Held                         Where defendant was charged with armed robbery with a firearm but
(Note: This syllabus         was convicted of the uncharged offense of armed robbery with a
constitutes no part of the   dangerous weapon other than a firearm after the trial court erred in
opinion of the court but     sua sponte considering the uncharged offense, defendant’s conviction
has been prepared by the     was vacated on the ground that her counsel was ineffective in failing
Reporter of Decisions        to object to the improper finding of guilt on the uncharged offense, and
for the convenience of       the cause was remanded for resentencing on a simple charge of
the reader.)                 robbery, a lesser-included offense of the charged offense; furthermore,
                             her conviction for aggravated unlawful restraint was vacated under the
                             one-act, one-crime rule, since both offenses arose from the single act
                             of robbing the victim and aggravated unlawful restraint was the lesser
                             offense.




Decision Under               Appeal from the Circuit Court of Cook County, No. 11-CR-10027; the
Review                       Hon. Nicholas Ford, Judge, presiding.




Judgment                     Convictions vacated, new conviction of lesser-included offense of
                             robbery entered, and case remanded for sentencing.
     Counsel on               Michael J. Pelletier and Deborah K. Pugh, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Sari London, and Carol L. Gaines, Assistant State’s Attorneys, of
                              counsel), for the People.




     Panel                    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.
¶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.”



                                                  -2-
¶6         At trial, Jesus Ruiz testified he bought and sold electronics, including cellular telephones,
       as a side business. He often answered advertisements on Craigslist. 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 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.
¶ 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.


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¶ 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.”
¶ 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 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

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       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
       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
       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



                                                    -5-
       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
       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.
¶ 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.



                                                     -6-
¶ 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 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 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


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       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 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 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.



                                                     -8-
¶ 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, a defendant must establish that counsel’s performance fell below an objective
       standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 162-63 (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.
¶ 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.


                                                     -9-
¶ 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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