                                                                   FIRST DIVISION
                                                                   December 31, 2009




No. 1-08-1090


THE PEOPLE OF THE STATE OF ILLINOIS,                           )   Appeal from the
                                                               )   Circuit Court of
                Plaintiff-Appellee,                            )   Cook County
                                                               )
       v.                                                      )
                                                               )   No. 99 CR 26204
ABRAHAM GARCIA,                                                )
                                                               )   Honorable
                Defendant-Appellant.                           )   Jorge Luis Alonso,
                                                               )   Judge Presiding.
                                                               )

       JUSTICE LAMPKIN delivered the opinion of the court:

       Following a bench trial, defendant Abraham Garcia was found guilty of three counts of

aggravated battery and was sentenced to three extended 90-month prison terms, to be served

concurrently. On appeal, defendant asserts his three convictions violate the one-act, one-crime

doctrine and his extended-term sentences are void.

       On November 16, 1999, defendant and codefendant Raul Tovar, who is not a party to this

appeal, were charged with attempted murder and four counts of aggravated battery based on an

incident occurring on August 31, 1999, in which Roberto Rios was the victim.

       Defendant was arraigned on November 29, 1999. On July 13, 2000, the trial court issued

a bond forfeiture warrant when defendant failed to appear in court, but the court subsequently

granted defense counsel’s motion to vacate that warrant. On November 21, 2000, the court

issued a second bond forfeiture warrant when defendant failed to appear in court. A judgment
1-08-1090

was entered on the bond forfeiture on December 27, 2000. Defendant was not arrested until

November 15, 2006, and the next hearing did not occur until November 28, 2006, almost six

years after defendant had failed to appear in court.

       At trial in 2008, defendant was found guilty of three counts of aggravated battery based

on evidence showing that at about 11 a.m. on August 31, 1999, Roberto and his wife Sylvia Rios

were driving to a restaurant when two cars stopped in the middle of the street and obstructed

traffic for several minutes. When Roberto honked his horn, defendant exited one of the two cars,

approached Roberto and swore at him. Roberto then swore back at defendant. After defendant

unsuccessfully tried to hit Roberto through his open window, the car in front of him began to

move and Roberto drove to the restaurant, where only he, Sylvia, a waitress, and the restaurant’s

owner were present. Shortly after Roberto and Sylvia had arrived, defendant entered with

another man who carried a four-foot pipe. Defendant said, “nobody fucks with me,” and held

Roberto so he could not move. Defendant’s companion then used the pipe to hit Roberto in the

leg, forehead, back and arm, breaking his arm in multiple places. After Roberto was hit about 15

times, he and defendant fell to the floor and defendant broke a glass “blender” against Roberto’s

face. Defendant then rubbed the broken blender against Roberto’s face. After the incident,

Roberto received stitches for the 15 cuts on his face and a cast was placed on his arm. He also

had scars and was missing a piece of skin.

       The trial court found defendant not guilty of attempted first degree murder “despite the

brutality of the attack” and found him guilty of three counts of aggravated battery (counts II, III,

and IV).


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          On April 2, 2008, the court proceeded to sentencing. The court stated that defendant’s

offenses were Class 3 felonies (720 ILCS 5/12-4(e) (West 1998)), with a sentencing range of

between two and five years’ imprisonment (730 ILCS 5/5-8-1(a)(6) (West 1998)). However, the

court and the parties agreed that based on defendant’s prior Class 2 possession of a stolen motor

vehicle conviction (PSMV) (625 ILCS 5/4-103(b) (West 1992)), defendant was subject to an

extended-term sentence of between 5 and 10 years’ imprisonment (730 ILCS 5/5-8-2(a)(5) (West

1998)). The presentence investigation report (PSI) reflected that on November 1, 1993,

defendant was sentenced to one year of probation for PSMV, and that his probation was

terminated as satisfactory on October 31, 1994. The court found the three aggravated battery

counts were “all separate theories” and sentenced defendant to three extended 90-month prison

terms, to be served concurrently.

          On April 8, 2008, defendant filed a motion to reconsider his sentence, arguing that his

prior PSMV conviction did not qualify him to receive an extended-term sentence because this

prior conviction did not occur within 10 years of his present conviction excluding time spent in

custody, as required by section 5-5-3.2(b)(1) of the Unified Code of Corrections (730 ILCS 5/5-

5-3.2(b)(1) (West 1998)). Defendant argued that the statute contained no provision tolling the

10-year period where a defendant causes delay, and the State has other remedies available when a

defendant violates the conditions of his bail bond.

          At a hearing on April 9, 2008, defendant presented substantially the same argument and

the State acknowledged it was not aware of any case providing for the tolling of the 10-year

period.


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       Following further argument by defendant on April 18, 2008, the court entered a written

order denying defendant’s motion to reconsider. The court acknowledged that there were no

cases directly on point but found that the 6-year delay from 2000 to 2006 was attributable to

defendant, thereby tolling the 10-year period and rendering him eligible for an extended-term

sentence.

       On appeal, defendant first asserts his three convictions for aggravated battery were based

on a single act, in violation of the one-act, one-crime doctrine. Specifically, he contends his

convictions were all based on one act of beating Roberto about the body. The State responds that

defendant committed three separate acts when (1) defendant, through his accomplice, beat

Roberto with the pipe; (2) defendant hit Roberto in the head with the pitcher; and (3) defendant

rubbed the pitcher on Roberto’s face.

       We review de novo whether a defendant’s convictions violate the one-act, one-crime

doctrine (People v. Tabb, 374 Ill. App. 3d 680, 694 (2007)), which prohibits a defendant from

receiving multiple convictions carved from the same act (People v. King, 66 Ill. 2d 551, 566

(1977)). One-act, one-crime analysis involves two steps, the first of which is to determine

whether a defendant’s conduct consisted of one physical act or separate physical acts. People v.

Harvey, 211 Ill. 2d 368, 389 (2004). An “act” is “ ‘ “any overt or outward manifestation which

will support a different offense.” ’ [Citation.]” People v. Isunza, No. 2-07-0360, slip op. at 9

(2009). However, if more than one conviction could be supported by the defendant’s conduct,

the indictment must indicate that the State intends to treat such conduct as multiple acts

warranting multiple convictions. People v. Crespo, 203 Ill. 2d 335, 342-45 (2001). A defendant


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is prejudiced where the State treats closely related acts as one in the indictment and during trial,

but changes its course on appeal to contend there were separate acts supporting separate

convictions. People v. Bishop, 218 Ill. 2d 232, 245-46 (2006). Furthermore, counts charging a

defendant with the same conduct under different theories of criminal culpability are insufficient

to differentiate the charges. See Crespo, 203 Ill. 2d at 342. If a reviewing court determines a

defendant committed multiple physical acts, it must then decide whether any of the offenses are

lesser-included offenses, thereby rendering multiple convictions improper. Harvey, 211 Ill. 2d at

389.

       Here, defendant was convicted of counts II, III and IV of aggravated battery based on

closely related acts occurring on the same day, as charged in the information. Compare Bishop,

218 Ill. 2d at 236, 245-46 (the defendant was charged with eight counts based on sexually

assaulting his daughter between 1998 and 2000). Count II charged that defendant and

codefendant “intentionally or knowingly without legal justification caused bodily harm to

Roberto Rios, to wit: beat Roberto Rios about the body, while using a deadly weapon, other than

by the discharge of a firearm, to wit: a pitcher.” (Emphasis added.) See 720 5/12-4(b)(1) (West

1998). In addition, count III charged that they “intentionally or knowingly caused great bodily

harm to Roberto Rios, to wit: beat Roberto Rios about the body.” (Emphasis added.) See 720

ILCS 5/12-4(a) (West 1998). Count IV further charged that they “intentionally or knowingly

caused permanent disfigurement to Roberto Rios, to wit: beat Roberto Rios about the body.”

(Emphasis added.) See 720 ILCS 5/12-4(a) (West 1998). Thus, the counts as charged

distinguished between the act of beating Roberto with a pitcher and the act of beating Roberto


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1-08-1090

with something other than a pitcher, notwithstanding that the latter counts did not specifically

identify a pipe.

       Nonetheless, we agree with defendant that the counts did not distinguish defendant’s

conduct in breaking the pitcher from his conduct in rubbing the broken pitcher on Roberto’s face.

Based on the evidence available, the State could have charged and argued such conduct as

separate acts, but it did not do so. Rather, only one count charged that defendant used a pitcher

and the other two counts were implicitly based on beating Roberto with a pipe. Contrary to the

State’s assertion, it did not sufficiently distinguished between two acts involving a pitcher at trial

either. In it’s opening statement, the State argued only that defendant was injured when struck

with a metal pipe and was injured when struck in the face with a glass pitcher. Compare Bishop,

218 Ill. 2d at 247-49 (the defendant was properly convicted of three counts of aggravated

criminal sexual assault where the State focused on three acts of penetration throughout trial). In

addition, the trial court’s finding that Roberto was injured by the lead pipe and generic reference

to “the pitcher to the face” as the most brutal part of the attack shows that the court distinguished

only between the injuries resulting from the pipe and those resulting from the pitcher. We further

observe that a different result does not obtain merely because the three counts charged different

theories of culpability under the aggravated battery statute, i.e., using a deadly weapon other than

by discharging a firearm, intentionally or knowingly causing great bodily harm, or intentionally

or knowingly causing disfigurement. 720 ILCS 5/12-4 (West 1998); see also People v. Curtis,

367 Ill. App. 3d 143, 147-48 (2006).

       Having determined that defendant’s conduct as charged and tried consisted of two acts,


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1-08-1090

the one-act, one-crime analysis ordinarily requires examining whether either of defendant’s

offenses is a lesser-included offense of the other. However, defendant does not represent that his

aggravated battery offenses involve a lesser-included offense. Accordingly, we must determine

which conviction based on defendant’s use of the pipe in the beating should be vacated.

        Pursuant to the one-act, one-crime doctrine, a reviewing court must vacate the less serious

offense, which is determined by comparing the relevant punishments for the offenses. People v.

Artis, 232 Ill. 2d 156, 170 (2009). However, where punishments are identical, reviewing courts

must consider which offense requires the more culpable mental state. In re Samantha V., 234 Ill.

2d 359, 379 (2009). Where a reviewing court cannot determine which offense is more serious,

the cause must be remanded for the trial court to determine which conviction should be vacated.

Artis, 232 Ill. 2d at 177.

        Here, defendant’s Class 3 aggravated battery convictions based on beating defendant with

a pipe required the same mental state of “intentionally or knowingly,” pursuant to section 12-4(a)

(720 ILCS 5/12-4(a) (West 1998)). Because we cannot determine which offense is more serious,

we must remand for the trial court to determine which conviction should be vacated.

        Next, defendant asserts his extended-term sentences were void. Specifically, he asserts

that the sentencing statute authorizes an extended-term sentence based on a prior conviction

within 10 years, and observes that more than 14 years passed between his PSMV conviction and

the present conviction. He also asserts the statute does not contain a tolling provision based on

delay caused by a defendant and the State had other recourse. The State responds that the court

properly found the 10-year period was tolled because defendant delayed proceedings for almost 6

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1-08-1090

years.

          A sentencing judge cannot impose a penalty that is not authorized by the relevant

sentencing statute. People v. Palmer, 218 Ill. 2d 148, 154 (2006). In addition, a portion of a

sentence that is not authorized is void. People v. Thompson, 209 Ill. 2d 19, 23 (2004). Whether

a judgment is void and matters of statutory construction present legal questions which we review

de novo. People v. Hauschild, 226 Ill. 2d 63, 72 (2007); People v. Diggins, 235 Ill. 2d 48, 54

(2009).

          The primary objective in statutory construction is to ascertain and give effect to the

legislature's intent. People v. Galan, 229 Ill. 2d 484, 529 (2008). The best indicator of such

intent is the statute’s language, which must be given its plain and ordinary meaning. Diggins,

235 Ill. 2d at 54. Where a statute’s language is unambiguous it must be given effect without

resorting to other aids for construction. People v. Richardson, 348 Ill. App. 3d 796, 806 (2004).

We also presume the legislature did not intend inconvenience, absurdity or injustice. Galan, 229

Ill. 2d at 529. However, a reviewing court will not depart from a statute’s plain language by

reading into it limitations, exceptions or conditions which conflict with the express legislative

intent. Galan, 229 Ill. 2d at 529. Criminal statutes must be strictly construed in favor of a

defendant and nothing should be taken by implication or intendment beyond the statute’s obvious

or literal meaning. People v. Taylor, 221 Ill. 2d 157, 162 (2006). We cannot remedy an apparent

legislative oversight under the guise of statutory construction by rewriting a statute in a manner

which is inconsistent with the statute’s unambiguous language. Taylor, 221 Ill. 2d at 162-63.

          Section 5-5-3.2(b)(1) provides that a trial court may impose an extended-term sentence

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1-08-1090

pursuant to section 5-8-2 (730 ILCS 5/5-8-2 (West 1998)) under the following circumstance:

                      “When a defendant is convicted of any felony, after having

               been previously convicted in Illinois or any other jurisdiction of the

               same or similar class felony or greater class felony, when such

               conviction has occurred within 10 years after the previous

               conviction, excluding time spent in custody, and such charges are

               separately brought and tried and arise out of different series of

               acts.” 730 ILCS 5/5-5-3.2.(b)(1) (West 1998)).

The purpose of the statute is to impose harsher sentences on offenders who have shown their

resistance to correction through their repeated convictions, but the extended-term provision is a

penal statute and should be strictly construed. People v. Robinson, 89 Ill. 2d 469, 475-76 (1982).

Under section 5-5-3.2(b)(1), the date of a defendant’s conviction is the date when his sentence

was entered. Robinson, 89 Ill. 2d at 476-77; see also People v. Lemons, 191 Ill. 2d 155, 159-60

(2000) (when a defendant’s original sentence of probation is revoked and he is resentenced, his

“previous conviction,” as used in the statute, occurs when the final sentence is imposed).

       Here, defendant was sentenced to probation for his PSMV conviction on November 1,

1993. Because he successfully completed that probation, that date remains the date of his prior

conviction. In the present case, defendant was sentenced on April 2, 2008. Thus, more than 14

years passed between defendant’s PSMV conviction and the present conviction. Although

defendant’s prior conviction was well within the requisite 10-year period when he was arraigned,

we adhere to our supreme court’s holding that conviction occurs upon entry of a defendant’s

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sentence. In addition, it is undisputed that section 5-5-3.2(b)(1)’s exclusion of time spent in

custody would not change the result here.

       We also find the unambiguous plain language of the statute provides no tolling provision

when a defendant causes a delay in proceedings, thereby preventing a prior conviction from

being a qualifying offense. In addition, the State cites to no statutory language whatsoever that

could be read to encompass such a provision. Compare In re Detention of Lieberman, 201 Ill. 2d

300, 307, 309-12, 317-18, 323-24 (2002) (finding that the statutory language “sexually violent

offense” included rape although the offense was not specifically enumerated in the statute);

People v. Harden, 113 Ill. 2d 14, 21-22 (1986) (finding that “convict[ed] in Illinois” included

convictions in federal and state courts in Illinois); see also Lemons, 191 Ill. 2d at 159-60

(interpreting “previous conviction”). Rather, the State essentially asks this court to rewrite the

statute to include the desired provision.

       The State contends that to allow defendant to escape from an extended-term sentence

under these circumstances would interfere with the legislature’s intent to impose harsher

sentences on offenders who have shown their resistence to correction. The State also contends

that a policy exists in favor of not rewarding a defendant who wrongfully absents himself from

court, thereby causing a delay, and observes that the legislature has on other occasions provided a

tolling provision where a delay in proceedings is attributable to the defendant. See 725 ILCS

5/103-5(f) (West 2008); People v. Rievia, 307 Ill. App. 3d 846, 850, 852-53 (1999); see also

People v. Taylor, 247 Ill. App. 3d 321, 322 (1993) (an appellate court may dismiss a defendant’s

appeal if he is a fugitive from justice during the pendency of his appeal). However, here, the

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legislature has apparently chosen not to implement a tolling provision to achieve the objective of

extended-term sentencing and we cannot graft such a provision on to the statute where the

legislature has not seen fit to do so. To the extent this is the result of legislative oversight, it

cannot be remedied by this court. Nonetheless, in light of other recourse that was available to the

State when defendant disappeared for six years, we cannot say the absence of a tolling provision

or the result here is absurd.

        Although the State correctly observes that the prosecutor has broad discretion in deciding

what charges to file (People v. Burton, 100 Ill. App. 3d 1021, 1025 (1981)), the State could have

charged defendant with a violation of bail bond (720 ILCS 5/32-10 (West 2000)). As defendant

was admonished at his arraignment on November 29, 1999, the State could have also tried and

sentenced defendant in his absence when he failed to appear. See People v. Phillips, No. 1-04-

2655, slip op. at 3-4 (September 30, 2009); 725 ILCS 5/113-4(e), 115-4.1 (West 2000). Had the

State done so, defendant’s PSMV conviction would likely have been a qualifying offense.

        Here, defendant was not eligible for an extended-term sentence because his prior PSMV

conviction was not a qualifying offense. Thus, defendant was eligible to be sentenced for his

Class 3 offense (720 ILCS 5/12-4(e) (West 1998)), to terms of between two and five years in

prison (730 ILCS 5/5-8-1(a)(6) (West 1998)). To the extent defendant’s sentence exceeded five

years’ imprisonment, it is void.

        For all the foregoing reasons, we remand the cause to the trial court to determine whether

to vacate count III or IV. We vacate the 2½ year extended-term portion of his sentences as void.

We affirm the judgment in all other respects.

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1-08-1090

      Affirmed in part and vacated in part; cause remanded with directions.

      HALL, P.J., and GARCIA, J., concur.




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            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT




                   THE PEOPLE OF THE STATE OF ILLINOIS,


                                  Plaintiff-Appellee,
                                           v.
                                ABRAHAM GARCIA,


                                Defendant-Appellant.




                                   No. 1-08-1090
                               Appellate Court of Illinois
                            First District, FIRST DIVISION
                                  December 31, 2009

             Justice Bertina E. Lampkin authored the opinion of the court:
                    Presiding Justice Hall and Justice Garcia concur.

                    Appeal from the Circuit Court of Cook County.
                     The Hon. Jorge Luis Alonso, Judge Presiding.

                          COUNSEL FOR APPELLANT
            Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
                           Patricia Unsinn, Deputy Defender
                             OF COUNSEL: Deborah Nall


                            COUNSEL FOR APPELLEE
            Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602
            OF COUNSEL: James E. Fitzgerald and Michele Grimaldi Stein




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