                         No. 3--06--0605
_________________________________________________________________
Filed September 30, 2008-CORRECTION
                              IN THE

                    APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2008

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 10th Judicial Circuit,
                                ) Tazewell County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 06--CF--47
                                )
HERSHEL MORGAN,                 ) Honorable
                                ) J. Peter Ault,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

          JUSTICE CARTER delivered the opinion of the court:
_________________________________________________________________


     Pursuant to a fully negotiated plea agreement, the trial

court found the defendant, Hershel Morgan, guilty of, among other

things, four counts of home invasion (720 ILCS 5/12--11(a) (West

2004)).   The court sentenced the defendant to four concurrent 30-

year prison terms for these offenses.    On appeal, the defendant

argues that three of his home invasion convictions and sentences

should be vacated under one-act, one-crime principles.   We agree,

and accordingly, we vacate three of the defendant's convictions

and sentences for home invasion.

                           I. BACKGROUND

     The State charged the defendant with having committed seven

offenses on December 20, 2005.   The State alleged that the
defendant committed four counts of home invasion by entering a

residence in Tazewell County and: (1) threatening K. M. with a

knife; (2) threatening Corey Buhs with a knife; (3) committing

aggravated criminal sexual assault against K. M. by placing his

penis in her mouth; and (4) committing aggravated criminal sexual

assault against K. M. by placing his penis in her vagina.     He was

also charged with having committed two counts of aggravated

criminal sexual assault, as described above.   Additionally, the

State submitted that the defendant committed a residential

burglary during the incident.

     The defendant agreed to plead guilty to these seven offenses

in exchange for the State: (1) recommending specific sentences;

(2) agreeing not to charge the defendant for other offenses in

Tazewell County that were under investigation; and (3) dismissing

a felony charge in Peoria County.    After the State presented the

factual basis for the seven counts, the court accepted the

defendant's guilty plea and the terms of the negotiated

agreement.   The court sentenced the defendant to: (1) two

consecutive 22½-year prison terms for the sexual assault

offenses; (2) four concurrent 30-year prison terms for the home

invasion offenses; and (3) 15 years of imprisonment for the

burglary offense.   The sentences for the home invasion and

burglary offenses were to run concurrently both with each other

and with the two consecutive sentences.


                                 2
     The defendant filed a timely motion to withdraw the guilty

plea in which he did not specifically argue that three of his

home invasion convictions and sentences should be vacated under

one-act, one-crime principles.   During the hearing on the motion,

the defendant also did not explicitly raise this argument.    The

trial court denied the motion, and the defendant appealed.

                          II. ANALYSIS

                      A. One-act, One-crime

     The defendant contends that we should vacate three of his

home invasion convictions and sentences under one-act, one-crime

principles, pursuant to which more than one offense may not be

carved out of a single physical act.   See People v. King, 66 Ill.

2d 551, 363 N.E.2d 838 (1977).   The Illinois Supreme Court has

repeatedly held that, under one-act, one-crime principles, the

home invasion statute will support only a single conviction for a

single entry to a residence, regardless of the number of persons

present or the number of persons harmed by the defendant.    See

People v. Hicks, 181 Ill. 2d 541, 693 N.E.2d 373 (1998); People

v. Cole, 172 Ill. 2d 85, 665 N.E.2d 1275 (1996); People v. Sims,

167 Ill. 2d 483, 658 N.E.2d 413 (1995).   In other words,

according to our supreme court, the home invasion statute (720

ILCS 5/12--11(a) (West 2004)) does not authorize multiple

convictions for a single entry to a home.




                                 3
     The State does not challenge the fact that this is the law

of Illinois, and does not deny that the defendant only made a

single entry to the residence.   Rather, the State questions our

authority to correct the error of the defendant's multiple

convictions on appeal.   The State submits that the defendant has

forfeited or waived this argument both by: (1) failing to raise

it in the trial court; and (2) pleading guilty to the offenses.

                       B. Forfeiture or Waiver

          1. Failure to Raise the Issue in the Trial Court

     In the instant case, the defendant did not argue in the

trial court that three of his home invasion convictions should be

vacated under one-act, one-crime principles.     We will consider

whether we may reach the defendant's argument despite his failure

to raise it with the trial court.     Generally, a defendant's

argument is forfeited on appeal if it was not raised in the trial

court.    People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988).

In this case, the defendant failed to raise his one-act, one-

crime argument in the trial court.     Therefore, it is forfeited on

appeal.

     Although the defendant's one-act, one-crime issue is

forfeited, plain errors affecting substantial rights may be

reviewed by an appellate court despite forfeiture.     134 Ill. 2d

R. 615(a).    The plain error doctrine allows a reviewing court to

consider errors affecting a defendant's substantial rights if


                                  4
either: (1) the evidence was closely balanced; or (2) the error

was so serious that it affects the integrity of the judicial

process.   People v. Herron, 215 Ill. 2d 167, 830 N.E.2d

467 (2005).

     In the instant case, our consideration of the closeness of

the evidence is inapplicable because the defendant was convicted

following a guilty plea.   Because the defendant's convictions

resulted from a plea proceeding rather than a trial, the State

offered a factual basis for the plea rather than evidence per se.

However, we will analyze whether the erroneous imposition of

multiple home invasion convictions was so serious that it may

affect the integrity of the judicial process.   See Herron, 215

Ill. 2d 167, 830 N.E.2d 467.

     In Hicks, 181 Ill. 2d at 545,693;N.E.2d at 375,the Illinois

Supreme Court ruled that the question whether the defendant could

be convicted of two home invasions, overcame waiver (forfeiture)

under the goals of obtaining a just result and maintaining a

sound body of precedent.   Likewise, in People v. Lee, 213 Ill. 2d

218,226,821 N.E.2d 307,312 (2004), our supreme court stated that

the defendant's one-act, one-crime argument was not barred on

appeal by failing to raise it in the trial court.   Citing People

v. Harvey, 211 Ill. 2d 368, 813 N.E.2d 181 (2004), the Lee court

said that a one-act, one-crime violation affects the integrity of

the judicial process and, therefore, invokes the plain error


                                 5
rule.   See Lee, 213 Ill. 2d at 226, 821 N.E.2d at 312.    In this

case, under Hicks, Harvey, and Lee, we are authorized to consider

the defendant's one-act, one-crime argument for plain error.

     Additionally, we may analyze the defendant's one-act, one-

crime argument for plain error because it implicates

constitutional double jeopardy principles.   The double jeopardy

clause of the United States Constitution provides that no person

shall "be subject for the same offence to be twice put in

jeopardy of life or limb" and is applicable to the states through

the fourteenth amendment.   U.S. Const., amends. V, XIV.   The

Illinois Constitution similarly states that "[n]o person shall

*** be twice put in jeopardy for the same offense."     Ill. Const.

1970, art. I, §10.

     The constitutional prohibition against double jeopardy bars

three specific governmental actions, which are: (1) prosecution

for the identical offense after an acquittal; (2) prosecution for

the identical offense after a conviction; and (3) the imposition

of more than one punishment for the same offense.     People v.

Gray, 214 Ill. 2d 1, 6, 823 N.E.2d 555,558 (2005).    The one-act,

one-crime rule is used to enforce the third prohibition of double

jeopardy, which is that a person should not suffer multiple

punishments for the same act.   People v. Price, 369 Ill. App. 3d

395,404, 867 N.E.2d 972,980 (2006).   Therefore, the defendant's

one-act, one-crime issue is a type of double jeopardy argument.


                                 6
     "[T]he seriousness of a double jeopardy issue and the

[intimate] relationship of the issue to the integrity and

fairness of judicial proceedings warrant considering the issue as

plain error."     People v. Billops, 125 Ill. App. 3d 483, 485, 466

N.E.2d 304, 306 (1984), quoting People v. Valentine, 122 Ill.

App. 3d 782, 784, 461 N.E.2d 1388, 1389 (1984).1      Therefore,

based on Billops, we may reach the defendant's one-act, one-crime

issue, as a form of double jeopardy argument, under the second

aspect of the plain error doctrine.

     Additionally, we note that the concurrent sentences for the

defendant's four home invasion convictions raise double jeopardy

considerations.    Even though the defendant would not serve

additional prison time for his three excess convictions, such

additional sentences are forbidden because of their potential for

adverse collateral consequences.       See Rutledge v. United States,

517 U.S. 292, 302, 134 L. Ed. 2d 419,429; 116 S. Ct. 1241, 1248

(1996).    These consequences may include: (1) the defendant's

eligibility for parole; (2) an increased sentence under a

recidivist statute for a future offense; (3) impeachment of the

     1
         We note that Valentine was overruled by Price, 369 Ill.

App. 3d 395, 867 N.E.2d 972, on other grounds.      However, Billops

has not been overturned.    We also observe that the Billops court

misquoted Valentine by substituting the word "infinite" for the

word "intimate."

                                   7
defendant's testimony in a future trial; and (4) the societal

stigma accompanying any criminal conviction.     Ball v. United

States, 470 U.S. 856, 84 L. Ed. 2d 740, 105 S. Ct. 1668 (1985).

Additionally, the excess sentences may affect the setting of

bond, if the defendant has a future encounter with the criminal

justice system.     People v. Davis, 156 Ill. 2d 149, 160, 619

N.E.2d 750, 756 (1993).    Thus, we also should consider the

defendant's one-act, one-crime argument because, under double

jeopardy principles, there are potential adverse collateral

consequences to his excess concurrent convictions.    Such

potential adverse collateral consequences certainly concern the

integrity of the judicial process and, therefore, implicate the

plain error rule.



                            2. Guilty Plea

     The State contends that the defendant has waived or

forfeited his one-act, one-crime argument by entering a guilty

plea.   The State cites People v. Jackson, 199 Ill. 2d 286, 769

N.E.2d 21 (2002), for the proposition that when a defendant

voluntarily pleads guilty, he waives all nonjurisdictional errors

or irregularities.    We would note, however, that it has been

said, "[u]nless there is plain error, a voluntary guilty plea

waives all non-jurisdictional errors including violations of

constitutional rights[.]"     Billops, 125 Ill. App. 3d at 484, 466


                                   8
N.E.2d at 305.   In this case, we have found plain error

implicated.

     As a preliminary matter, we note that in People v. Blair,

215 Ill. 2d 427, 443,    831 N.E.2d 604, 615 (2005), the Illinois

Supreme Court observed that Illinois law has tended to use the

terms "waiver" and "forfeiture" interchangeably.      The Blair

court, however, pointed out important distinctions between these

two terms, when used correctly.    "Waiver" means the voluntary

relinquishment of a known right.       Blair, 215 Ill. 2d at 444, FN2,

831 N.E.2d at 615 FN2.   "Forfeiture" is defined as the failure to

raise an issue in a timely manner, thereby barring its

consideration on appeal.    Blair, 215 Ill. 2d 427,444, 831 N.E.2d

604, 615.

     In People v. Townsell, 209 Ill. 2d 543, 547-548, 809 N.E.2d

103, 105 (2004), our supreme court explained that by pleading

guilty, a defendant "waives" nonjurisdictional errors, in the

sense of voluntarily relinquishing known rights.      The Townsell

court emphasized that the term "waiver," as used in cases

regarding Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a))

concerning plain error, has nothing to do with the voluntary

relinquishment of known rights.    To the contrary, according to

the Townsell court, the term "waiver," as applied to Rule 615(a),

concerns failure to bring an issue to the attention of the trial

court.   Although the Townsell court did not explicitly say so,


                                   9
the term "waiver," in the plain error context, actually means

"forfeiture."

     The Townsell court, therefore, noted that the "waiver"

referred to in Jackson, regarding guilty pleas, concerned the

voluntary relinquishment of a known right rather than the failure

to raise an issue in the trial court.   Townsell, 209 Ill. 2d at

547, 809 N.E.2d at 105.   The courts in both Townsell and Jackson

ruled that the defendants voluntarily relinquished a known due

process right concerning an Apprendi sentencing issue by pleading

guilty.

     However, we cannot assume the present defendant voluntarily

and knowingly pled guilty to improper excess convictions, without

something in the record suggesting that he voluntarily

relinquished a known right by agreeing to these impermissible

excess convictions.   Therefore, we cannot say that the defendant

"waived" his one-act, one-crime argument by pleading guilty.

     The State also cites People v. Peeples, 155 Ill. 2d 422, 616

N.E.2d 294 (1993), for the proposition that a constitutional

right, like any other right of a defendant, may be waived.

Again, we note that the term "waived," as used in Peeples,

concerns the voluntary relinquishment of a known right.   In

Peeples, the court ruled that the defendant voluntarily

relinquished his known right to a fair and impartial jury




                                10
concerning a Batson issue by pleading guilty.    Thus, Peeples is

inapplicable to the present case for the same reason that

Jackson is inapposite.

     Additionally, the State contends that the defendant is

estopped from making his current argument under the contract

theory of plea agreements announced by the Illinois Supreme Court

in People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996).

However, we find Evans to be procedurally and factually

distinguishable from the present case.    In Evans, the defendants

were convicted and sentenced pursuant to negotiated pleas.    They

then filed motions to reduce their sentences.    Using contract

analysis, the Evans court held that defendants who enter into

negotiated pleas must move to withdraw their guilty pleas, rather

than move to reduce their sentences.    In this case, the defendant

did not negotiate a plea and then seek to reduce his sentence.

On the contrary, the State negotiated a plea with the defendant,

which included improper excess home invasion convictions.

Arguably, these negotiations violated contract principles of good

faith and fair dealing, absent a showing in the record that the

defendant knew the three convictions at issue would be

impermissible excess convictions.   But, whatever the situation,

in the instant case, the defendant properly preserved his right

to appeal by filing a motion to withdraw the guilty plea, rather

than a motion to reduce the sentence.    Therefore, because the


                               11
present case is procedurally and factually distinguishable from

Evans, we find the contract analysis of Evans to be inapplicable.

                             C. Summary

     The State does not contest that three of the defendant's

convictions for home invasion violate one-act, one-crime

principles because the defendant made a single entry to the

residence.    Instead, the State argues that we may not reach this

issue on appeal. Neither party argues that the matter should be

remanded. We hold that we may consider the question on review,

for the reasons stated above, and consequently vacate three of

the defendant's home invasion convictions.   See Hicks, 181 Ill.

2d 541, 693 N.E.2d 373; Cole, 172 Ill. 2d 85, 665 N.E.2d 1275;

Sims, 167 Ill. 2d 483, 658 N.E.2d 413.

                           III. CONCLUSION

     For the foregoing reasons, we vacate three of the

defendant's convictions and sentences for home invasion imposed

by the Tazewell County circuit court.

     Vacated in part.

     O’BRIEN, J. concurring and MCDADE, P. J. specially

concurring.

                           No. 3--06--0605

_________________________________________________________________

Filed September 30, 2008 CORRECTION

                               IN THE
                            APPELLATE COURT OF ILLINOIS



                                      THIRD DISTRICT



                                         A.D., 2008



THE PEOPLE OF THE STATE                         )    Appeal from the Circuit Court

OF ILLINOIS,                                    )    of the 10th Judicial Circuit,

                                                )    Tazewell County, Illinois,

       Plaintiff-Appellee,                      )

                                                )

       v.                                       )    No. 06--CF--47

                                                )

HERSHEL MORGAN,                                 )    Honorable

                                                )    J. Peter Ault,

       Defendant-Appellant.                     )    Judge, Presiding.

_________________________________________________________________



       PRESIDING JUSTICE McDADE, specially concurring:

_________________________________________________________________



       The majority has vacated three of defendant’s four convictions for home invasion based

on one-act, one-crime principles. I agree that those convictions must be vacated and I, therefore,

concur in the judgment.

                                               13
        The difficulty in this case has not been deciding whether three of the convictions and the

sentences imposed for them were proper – it is clear that they were not. Rather, the difficulty has

been how to overcome principles of waiver and forfeiture which the State has raised to forestall

our correction of this clear error.

        The majority has utilized a complex analysis involving plain error and violation of the

constitutional principles of double jeopardy to conclude that the imposition of these sentences

reflects so significantly on the integrity of our judicial system that they cannot be allowed to

stand. I am in fundamental agreement with that analysis, although I am troubled by the reliance

on double jeopardy inasmuch as it has not been raised by the parties either in the circuit court or

in this appeal.

        I write separately because I believe the supreme court has articulated an analytical basis

for finding additional convictions, such as the three at issue in this case, to be void and therefore

appealable without consideration of waiver, forfeiture or guilty plea. I hope to persuade the court

to take that step.

        Generally, a defendant's argument is forfeited on appeal if it was not raised in the trial

court. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). However, a judgment that was

not authorized by statute is void, and a defendant may challenge it at any time, even where the

judgment was imposed as part of a negotiated plea. People v. Brown, 225 Ill. 2d 188, 199, 866

N.E.2d 1163, 1169 (2007); People v. Palmer, 218 Ill. 2d 148, 154, 843 N.E.2d (2006)2.


        2
        I acknowledge that neither Brown nor Palmer dealt with convictions for home invasion,
and they do not provide specific authority that convictions of more than one count of home
invasion premised on a single entry would be void. Brown concerns reliance on a statute found
unconstitutional for violation of the single subject rule of legislative enactments. Palmer raised
the question of whether a sentence not allowed by the relevant sentencing statute is void and thus

                                                 14
       Under one-act, one-crime principles, more than one offense may not be carved out of a

single physical act. People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). The Illinois Supreme

Court has repeatedly held that, under such principles, the home invasion statute will support only

a single conviction for a single entry to a residence, regardless of the number of persons present

or the number of persons harmed by the defendant. See People v. Hicks, 181 Ill. 2d 541, 693

N.E.2d 373 (1998); People v. Cole, 172 Ill. 2d 85, 101-02, 665 N.E.2d 1275, 1282-83 (1996);

People v. Sims, 167 Ill. 2d 483, 658 N.E.2d 413 (1995). In Cole, the supreme court cited with

approval six appellate court cases concluding that ?the home invasion statute will support only a

single conviction in the circumstances shown here. See, e.g., People v. Palacio, 240 Ill. App. 3d

1078, 1088-89, [607 N.E.2d 1375] (1993); People v. McDarrah, 175 Ill. App. 3d 284, [529

N.E.2d 808] (1988); People v. Parker, 166 Ill. App. 3d 123, [519 N.E.2d 703] (1988); People v.

Yarbrough, 156 Ill. App. 3d 643, [509 N.E.2d 747] (1987); People v. Morrison, 137 Ill. App. 3d

171, 177-78, [484 N.E.2d 329] (1985); People v. Ammons, 120 Ill. App. 3d 855, [458 N.E.2d

1031] (1983).” Cole, 172 Ill. 2d at 101-02.

       The Cole court stated:

               ?The rationale for this view is found in the legislature’s description

               of the elements of the offense: the home invasion statute speaks of

               a defendant’s entry of, or presence in, a dwelling when the

               defendant knows or has reason to know ‘that one or more persons


not subject to forfeiture by the defendant. I rely on Brown and Palmer for their articulation of the
general principle that judgments entered without statutory authority are void and a challenge to
such judgments is not waived but can be raised at any time even when the conviction/sentence
results from a guilty plea.


                                                 15
                is present’ and, further, of the defendant’s use or threat of force

                while armed ‘upon any person or persons’ in the dwelling, and of

                the defendant’s intentional injury of ‘any person or persons’ in the

                dwelling. 720 ILCS 5/12/-11 (West 1992). These references to

                one or more persons in the dwelling signify that a single entry will

                support only a single conviction, regardless of the number of

                occupants. We find this reasoning persuasive, and we agree with

                the defendant that he cannot be convicted of more than one count

                of home invasion in this case. Accordingly, we must vacate one of

                the convictions and sentences for that offense.” Cole, 172 Ill. 2d at

                102, 665 N.E. 2d at 1283.

In other words, under the above rulings, the statute does not authorize multiple convictions for

home invasion under such circumstances. I think it fair to restate those rulings as holding that

more than one conviction for home invasion when there has been but a single entry is without

statutory authority.3

        Thus, I believe that because the home invasion statute does not authorize multiple

convictions for a single entry to a residence, the surplus convictions are without statutory

authority and should be deemed void.4 Void convictions may be challenged at any time, even



        3
        Despite the clarity of these holdings, prosecutors continue to seek – either by multiple
count complaints or indictments or through plea negotiations – and courts continue to impose
multiple convictions and sentences for single-entry home invasion.
        4
        I believe that, because home invasion is a creation of statute, there is also no alternate
source of authority for the imposition of multiple convictions based on a single entry.

                                                  16
where the convictions were imposed as part of a negotiated plea.5 See Brown, 225 Ill. 2d 188,

866 N.E.2d 1163. Furthermore, sentences that were imposed without statutory authority are void

and are not subject to a defendant's forfeiture. People v. Palmer, 218 Ill. 2d 148, 154, 843 N.E.2d

292 (2006). Whether a judgment is void is a question of law, which we review de novo. People

v. Rodriguez, 355 Ill. App. 3d 290, 823 N.E.2d 224 (2005).

       In this case, the defendant was convicted of and sentenced for four counts of home

invasion based on a single entry to a residence. Under one-act, one-crime principles, the

defendant could only be convicted of and sentenced for one count of home invasion. Three of

the defendant's convictions and sentences for home invasion were thus void because our supreme

court has found in multiple cases cited above (Hicks, Cole, and Sims) that they were not

authorized by statute. Because these judgments of conviction and sentences were void, they

could be challenged by the defendant at any time, regardless of the fact that the judgments were

imposed as part of a negotiated plea. See Palmer, 218 Ill. 2d 148, 843 N.E.2d 292; Brown, 225

Ill. 2d 188, 866 N.E.2d 1163.

       The State cites People v. Jackson, 199 Ill. 2d 286, 769 N.E.2d 21 (2002), for the

proposition that when a defendant voluntarily pleads guilty, he forfeits all nonjurisdictional errors

or irregularities. While the instant defendant's argument does not concern a jurisdictional error or

irregularity, I believe the Illinois Supreme Court's more recent pronouncement in Brown renders

Jackson inapposite to the instant case. Furthermore, a judgment deemed void because it is

unauthorized by statute is analogous to a judgment that is void because the trial court issued it


       5
       As importantly, when the statute provides no authority for more than one conviction, it
would seem that the State cannot offer and the court cannot accept a plea which includes the
unauthorized punishment, and that the plea agreement, too, would be void.

                                                 17
without jurisdiction. Thus, by analogy, the void judgments at issue in this case, which I believe

are void, would not be forfeited under Jackson.

       The State has also cited People v. Peeples, 155 Ill. 2d 422, 616 N.E.2d 294 (1993), for the

proposition that a constitutional right, like any other right of a defendant, may be forfeited. The

holding of Peeples is also inapposite here because the argument on this particular issue concerns

a statutory rather than a constitutional question.

       For the foregoing reasons, I believe three of the defendant’s four convictions for home

invasion should be found void, that we could thus reach his challenge on review, and that those

convictions would have to be vacated on that basis.




                                                     18
