                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Millsap, 2012 IL App (4th) 110668




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ADAM J. MILLSAP, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-11-0668


Filed                      November 29, 2012


Held                       Defendant’s convictions for two counts of aggravated battery were
(Note: This syllabus       remanded for vacation of one of the convictions under the one-act, one-
constitutes no part of     crime rule after the trial court determines which conviction is less serious,
the opinion of the court   as well as for modification of the assessments imposed.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Livingston County, No. 10-CF-261; the
Review                     Hon. Jennifer H. Bauknecht, Judge, presiding.



Judgment                   Affirmed in part as modified; cause remanded with directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Janieen R. Tarrance, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                            Thomas J. Brown, State’s Attorney, of Pontiac (Patrick Delfino, Robert
                           J. Biderman, and Thomas R. Dodegge, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Presiding Justice Turner and Justice Steigmann concurred in the
                           judgment and opinion.




                                             OPINION

¶1          On October 8, 2010, defendant, Adam J. Millsap, was charged in a three-count
        information with aggravated battery. After a bench trial, he was convicted of two counts of
        aggravated battery (720 ILCS 5/12-4(a), (b)(8) (West 2010)) and sentenced to serve
        concurrent terms of four years in the Illinois Department of Corrections. The trial court also
        ordered defendant to pay various assessments including a Violent Crime Victims Assistance
        Fund (VCVA) assessment (725 ILCS 240/10(b) (West 2010)) and a Children’s Advocacy
        Center (CAC) assessment (55 ILCS 5/5-1101(f-5) (West 2010)).
¶2          On appeal, defendant argues that (1) under the one-act, one-crime rule, one of his
        convictions for aggravated battery must be vacated; (2) the $40 CAC assessment should be
        reduced; and (3) the $25 VCVA assessment should be reduced to $4. We affirm as modified
        and remand with directions.

¶3                                        I. BACKGROUND
¶4          On the evening of October 6, 2010, there was a pickup football game at the practice field
        across from the Pontiac Township High School in Pontiac, Illinois. At the end of the game,
        the victim and Devon Millsap, defendant’s brother, began fighting. According to Stefanie
        Johnson, who witnessed the incident, defendant stated to his brother during the fight: “Knock
        him out. If you don’t take care of him, I will.” She further testified that after the fight
        between the victim and Devon ended, the victim turned around and defendant punched him
        in the jaw. The victim then fell to the ground and began bleeding from the mouth. Soon
        thereafter, the victim was taken to the emergency room and treated for a broken jaw.
¶5          On October 8, 2010, defendant was charged in a three-count information with aggravated
        battery. In count I, defendant was charged with knowingly causing bodily harm to the victim
        in that he “struck [the victim], on or about a public place at Pontiac Township High School,

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       *** in violation of 720 ILCS 5/12-4(b)(8), a Class 3 Felony.” In count II, defendant was
       charged with knowingly making physical contact of an insulting or provoking nature with
       the victim in that he “struck [the victim], on or about a public place at Pontiac Township
       High School, *** in violation of 720 ILCS 5/12-4(b)(8), a Class 3 Felony.” In count III,
       defendant was charged with knowingly causing great bodily harm to the victim in that he
       “knowingly struck [the victim] and broke his jaw, on or about a public place at Pontiac
       Township High School, *** in violation of 720 ILCS 5/12-4(a), a Class 3 Felony.”
¶6         On December 20, 2010, defendant waived his right to a jury trial.
¶7         On February 7, 2011, a bench trial was held. After hearing testimony from two witnesses,
       the trial was continued to March 15, 2011.
¶8         On March 15, 2011, the trial resumed. After hearing evidence and argument, the trial
       court found defendant guilty of aggravated battery and scheduled a sentencing hearing for
       May 2, 2011.
¶9         On March 23, 2011, defendant filed a motion for a new trial.
¶ 10       On May 2, 2011, the trial court denied defendant’s motion for a new trial and continued
       the sentencing hearing to June 6, 2011.
¶ 11       At the sentencing hearing on June 6, 2011, the trial court sentenced defendant on counts
       I and III of the information, with count II merging with count I, to concurrent terms of four
       years in the Illinois Department of Corrections. The court also gave defendant 243 days’
       credit for time served from October 7, 2010, to June 6, 2011. Last, the court ordered
       defendant to pay court costs, a VCVA assessment, and a $40 CAC assessment on the two
       counts of aggravated battery. The circuit clerk’s fees and fines information contained in the
       supplemental record indicates that defendant was assessed, among others, a $25 VCVA
       assessment and a $5 State Police operations assistance assessment.
¶ 12       On June 9, 2011, defendant filed a motion for reconsideration, alleging that the sentence
       imposed was unduly harsh and punitive under the circumstances presented. The trial court
       denied the motion.
¶ 13       This appeal followed.

¶ 14                                     II. ANALYSIS
¶ 15      On appeal, defendant argues that (1) under the one-act, one-crime rule, one of his
       convictions for aggravated battery must be vacated; (2) the $40 CAC assessment should be
       reduced; and (3) the $25 VCVA assessment should be reduced to $4.

¶ 16                               A. One-Act, One-Crime Rule
¶ 17       Defendant acknowledges that he failed to preserve for appeal the issue of whether the
       one-act, one-crime rule was violated because he did not raise the issue before the trial court.
       However, in People v. Harvey, 211 Ill. 2d 368, 389, 813 N.E.2d 181, 194 (2004), the Illinois
       Supreme Court determined that a violation of the one-act, one-crime rule affects the integrity
       of the judicial process, thereby satisfying the second prong of the plain-error analysis. We
       review de novo the issue of whether there was a violation of the one-act, one-crime rule.

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       People v. Johnson, 368 Ill. App. 3d 1146, 1163, 859 N.E.2d 290, 305 (2006).
¶ 18       The one-act, one-crime rule prohibits multiple convictions when the convictions are
       based on precisely the same physical act. People v. Miller, 238 Ill. 2d 161, 165, 938 N.E.2d
       498, 501 (2010). If the same physical act forms the basis for two separate offenses charged,
       a defendant could be prosecuted for each offense, but only one conviction and sentence may
       be imposed. People v. Segara, 126 Ill. 2d 70, 76-77, 533 N.E.2d 802, 805 (1988). However,
       if guilty verdicts are obtained for multiple counts arising from the same act, then a sentence
       should be imposed on the most serious offense. See People v. Donaldson, 91 Ill. 2d 164, 170,
       435 N.E.2d 477, 479-80 (1982). In In re Samantha V., 234 Ill. 2d 359, 379, 917 N.E.2d 487,
       500 (2009), the Illinois Supreme Court held that to determine the most serious offense, a
       reviewing court should “consider the plain language of the statutes, as common sense
       dictates that the legislature would prescribe greater punishment for the offense it deems the
       more serious. [Citations.]” The supreme court further held that if the punishments are
       identical, then the reviewing court must determine which offense has the more culpable
       mental state. Samantha V., 234 Ill. 2d at 379, 917 N.E.2d at 500.
¶ 19       The State concedes that one of defendant’s convictions for aggravated battery should be
       vacated because both convictions were premised upon the same physical act. We agree. Both
       counts I and III of the information are based upon defendant striking the victim once in the
       face. Count I alleges that defendant knowingly caused bodily harm to the victim in that he
       “struck [the victim], on or about a public place.” Count III alleges that defendant knowingly
       caused great bodily harm to the victim in that he “struck [the victim] and broke his jaw, on
       or about a public place.”
¶ 20       Next, we must determine which of the two offenses is more serious. In Samantha V., the
       supreme court remanded to the trial court the determination as to whether aggravated battery
       on a public way or aggravated battery that causes great bodily harm is the more serious
       offense. Samantha V., 234 Ill. 2d at 379-80, 917 N.E.2d at 500. The supreme court found that
       the more serious offense could not be determined because the punishment and mental state
       requirement for aggravated battery on a public way and aggravated battery that causes great
       bodily harm are identical. See Samantha V., 234 Ill. 2d at 379, 917 N.E.2d at 500 (aggravated
       battery on a public way and aggravated battery that causes great bodily harm are both Class
       3 felonies that require that the accused acted intentionally and knowingly). In accordance
       with the supreme court’s decision in Samantha V., we remand the matter to the trial court to
       determine the less serious offense, and order that conviction vacated.

¶ 21                                  B. CAC Assessment
¶ 22       Defendant failed to preserve for appeal the issue of whether the CAC assessment should
       be reduced; however, a sentence that does not conform to a statutory requirement is void and
       may be attacked at any time. See People v. Thompson, 209 Ill. 2d 19, 24-25, 805 N.E.2d
       1200, 1203 (2004).
¶ 23       “The propriety of court-ordered fines and fees presents a question of statutory
       interpretation, which we review de novo. [Citation.]” People v. Elcock, 396 Ill. App. 3d 524,
       538, 919 N.E.2d 984, 995 (2009).

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¶ 24       Under section 5-1101(f-5) of the Counties Code, the maximum CAC fee that may be
       imposed is $30. See 55 ILCS 5/5-1101(f-5) (West 2010). Section 5-1101(f-5) of the Counties
       Code provides, in relevant part, as follows:
               “In each county in which a Children’s Advocacy Center provides services, the county
           board may adopt a mandatory fee of between $5 and $30 to be paid by the defendant on
           a judgment of guilty or a grant of supervision under Section 5-9-1 of the Unified Code
           of Corrections for a felony; for a Class A, Class B, or Class C misdemeanor; for a petty
           offense; and for a business offense.” 55 ILCS 5/5-1101(f-5) (West 2010).
       The $40 CAC assessment imposed on defendant for the two counts of aggravated battery
       exceeds the statutory maximum. Accordingly, we remand the matter to the trial court to
       determine the fine associated with the less serious offense and order that fine vacated.

¶ 25                                     C. VCVA Assessment
¶ 26        Defendant failed to preserve for appeal the issue of whether the VCVA assessment
       should be reduced; however, a sentence that does not conform to a statutory requirement is
       void and may be attacked at any time. See Thompson, 209 Ill. 2d at 24-25, 805 N.E.2d at
       1203.
¶ 27        “The propriety of court-ordered fines and fees presents a question of statutory
       interpretation, which we review de novo. [Citation.]” Elcock, 396 Ill. App. 3d at 538, 919
       N.E.2d at 995.
¶ 28        Defendant argues the $25 VCVA assessment should be reduced to $4 because the CAC
       fee and State Police operations assistance fee are actually fines. The State concedes that the
       VCVA assessment should be reduced.
¶ 29        Under section 10(c)(1) of the Violent Crime Victims Assistance Act, a $25 VCVA
       assessment is to be imposed only if the defendant is convicted of a qualifying felony and no
       other fine is imposed. See 725 ILCS 240/10(c)(1) (West 2010). If another fine is imposed,
       then, under section 10(b) of the Violent Crime Victims Assistance Act (725 ILCS 240/10(b)
       (West 2010)), defendant is subject to “an additional penalty of $4 for each $40, or fraction
       thereof, of fine imposed.”
¶ 30        Notwithstanding the statutory label of fee, the CAC fee is actually a fine. People v. Jones,
       397 Ill. App. 3d 651, 660, 921 N.E.2d 768, 775 (2009). As the First District pointed out in
       Jones, the CAC fee is a fine because the charge is mandatory for a convicted defendant and
       does not reimburse the State for money it expended in prosecuting the defendant. Jones, 397
       Ill. App. 3d at 660, 921 N.E.2d at 775.
¶ 31        Despite its statutory label, the State Police operations assistance fee is also a fine. Under
       section 27.3a(1.5) of the Clerks of Courts Act, a circuit clerk in any county that imposes a
       fee for maintaining automated record keeping systems pursuant to section 27.3a(1) of the
       Clerks of Courts Act must collect an additional fee, the State Police operations assistance fee,
       to be paid by the defendant in any felony, traffic, misdemeanor, or local ordinance violation
       upon a judgment of guilty or grant of supervision. See 705 ILCS 105/27.3a(1.5) (West 2010).
       Section 27.3a(5) requires that the circuit clerk remit the fees collected under section


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       27.3a(1.5) to the State Treasurer to be deposited into the State Police Operations Assistance
       Fund. 705 ILCS 105/27.3a(5) (West 2010). Moneys in the State Police Operations Assistance
       Fund may be used by the Illinois Department of State Police to “finance any of its lawful
       purposes or functions.” 30 ILCS 105/6z-82(b) (West 2010) (text of section as added by
       Public Act 96-1029 (eff. July 13, 2011)). Additionally, the legislature subsequently amended
       section 27.3a, effective August 19, 2011, to allow the Director of the State Police to use State
       Police operations assistance fees for homeland security purposes. See 705 ILCS 105/27.3a(6)
       (West Supp. 2011). Accordingly, we find that the State Police operations assistance fee does
       not reimburse the State for costs incurred in defendant’s prosecution.
¶ 32       Under section 10(b) of the Violent Crime Victims Assistance Act, the VCVA assessment
       needs to be recalculated to account for the two additional fines assessed against defendant.
       The State Police operations assistance assessment is $5 and the CAC assessment, to be
       determined on remand, cannot exceed the $30 statutory maximum set forth in section 5-
       1101(f-5) of the Counties Code. See 55 ILCS 5/5-1101(f-5) (West 2010). Thus, defendant’s
       VCVA assessment should be modified to $4 because the total amount of the State Police
       operations assistance assessment and the CAC assessment cannot exceed $35. See 725 ILCS
       240/10(b) (West 2010).

¶ 33                                    III. CONCLUSION
¶ 34       For the foregoing reasons, we remand to the trial court with directions to (1) determine
       the less serious conviction for aggravated battery and vacate that conviction and (2) vacate
       the CAC assessment associated with the less serious aggravated battery conviction; and (3)
       we reduce the VCVA assessment to $4.

¶ 35      Affirmed in part as modified; cause remanded with directions.




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