                             2019 IL App (2d) 170030
                                  No. 2-17-0030
                            Opinion filed July 18, 2019
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of De Kalb County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 15-CF-281
                                       )
ROGER C. O’BRIEN,                      ) Honorable
                                       ) William P. Brady,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justice Jorgensen concurred in the judgment and opinion.
       Justice Hutchinson dissented, with opinion.

                                            OPINION

¶1     Defendant, Roger C. O’Brien, appeals from his convictions of aggravated battery (720

ILCS 5/12-3.05(a)(4) (West 2014)) and aggravated domestic battery (id. § 12-3.3(a)). He argues

on appeal that (1) the prosecution was barred by the prohibition against double jeopardy, (2) the

prosecution deprived him of the benefit of a plea agreement with the State, and (3) one of his

convictions must be vacated pursuant to the one-act, one-crime rule. We affirm in part and

remand to the trial court with directions to vacate defendant’s lesser conviction.

¶2                                      I. BACKGROUND
2019 IL App (2d) 170030


¶3     A De Kalb County grand jury returned a four-count indictment against defendant. Count

I charged defendant with aggravated battery, specifying section 12-3.05(d)(1) of the Criminal

Code of 2012 (Code) (id. § 12-3.05(d)(1)) as the statutory basis for the charge. Count II charged

defendant with aggravated domestic battery (id. § 12-3.3(a)), a probationable Class 2 felony (id.

§ 12-3.3(b)). Counts III and IV charged defendant with domestic battery (id. § 12-3.2(a)(1)).

All four counts arose from an altercation between defendant and his 80-year-old stepfather,

Robert Clarner.

¶4     Defendant and the State entered into an agreement pursuant to which defendant would

plead guilty to count I of the indictment and the remaining counts would be dismissed. Count I

of the indictment stated, in pertinent part, as follows:

       “ROGER C. O’BRIEN committed the offense of AGGRAVATED BATTERY (Class 2

       FELONY), in that said defendant KNOWINGLY CAUSED GREAT BODILY HARM

       TO ROBERT CLARNER IN THAT SAID DEFENDANT STRUCK ROBERT

       CLARNER MULTIPLE TIMES IN THE FACE WITH HIS FISTS CAUSING

       LACERATIONS AND NOSE FRACTURES, AT A TIME WHEN SAID DEFENDANT

       KNEW ROBERT CLARNER TO BE A PERSON 60 YEARS OF AGE OR OLDER, in

       violation of Chapter 720, Section 5/12-3.05(d)(1).”

Significantly, section 12-3.05(d)(1) of the Code requires proof that the defendant committed a

battery with knowledge that the victim was 60 years of age or older; it does not require proof of

great bodily harm. Id. § 12-3.05(d)(1). Although the indictment stated that the offense was a

Class 2 felony, a violation of section 12-3.05(d)(1) is actually a Class 3 felony. Id. § 12-3.05(h).

On the other hand, the factual allegations of count I set forth the elements of aggravated battery

as defined in section 12-3.05(a)(4) of the Code (id. § 12-3.05(a)(4) (a person commits aggravated



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battery when, in committing a battery, he or she knowingly “[c]auses great bodily harm *** to an

individual 60 years of age or older”)), which is a Class 2 felony (id. § 12-3.05(h)). Furthermore,

probation is not an authorized sentence for a violation of section 12-3.05(a)(4). 730 ILCS 5/5-5-

3(c)(2)(I) (West 2014).

¶5     Defendant entered his guilty plea on January 29, 2016. Before he did so, the trial court

admonished him that the sentencing range “begins at placing you on some form of probation and

it can go all the way up to the most serious charge, which is commitment to the Illinois

Department of Corrections for a period of time not less than three, no more than seven years.”

After defendant entered his guilty plea, the trial court dismissed counts II, III, and IV of the

indictment.

¶6     On March 28, 2016, the State moved to amend count I of the indictment by changing the

statutory citation therein from section 12-3.05(d)(1) of the Code to section 12-3.05(a)(4). For the

reasons discussed above, the amendment would make defendant ineligible for a sentence of

probation. The trial court granted the motion over defendant’s objection. However, the trial

court concluded that, because defendant had been admonished that probation was an authorized

sentence, he was entitled to withdraw his plea and proceed to trial. Defendant chose to do so,

and counts II, III, and IV were reinstated. The matter proceeded to a bench trial, at which the

trial court found defendant guilty on all four counts of the indictment. The trial court entered a

judgment of conviction on only counts I and II and sentenced defendant to concurrent five-year

prison terms. The trial court denied defendant’s motions for judgment notwithstanding the

verdict and to reconsider his sentences. This appeal followed.

¶7                                       II. ANALYSIS




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¶8     The fifth amendment to the United States Constitution and article I, section 10, of the

Illinois Constitution provide that no person shall be twice placed in jeopardy for the same

offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10. This prohibition protects the

accused against (1) a second prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments for the same

offense. People v. Cervantes, 2013 IL App (2d) 110191, ¶ 24. When determining whether a

prosecution violated the prohibition against double jeopardy, the first step in the analysis is to

determine when jeopardy attached in the first proceeding. People v. Cabrera, 402 Ill. App. 3d

440, 447 (2010). When a defendant pleads guilty, jeopardy attaches when the trial court accepts

the plea. Id. Once jeopardy has attached, the double jeopardy clause forbids further prosecution

if the initial prosecution terminated improperly. Id. at 449-50.

¶9     As a general rule, a defendant’s withdrawal of his or her guilty plea does not improperly

terminate the prosecution in which the plea was entered. As a federal court has explained:

       “Because ‘ “the Double Jeopardy Clause … does not relieve a defendant from the

       consequences of his voluntary choice,” ’ [citation], it is well-settled that double jeopardy

       does not apply to the original counts in an indictment when a defendant has withdrawn or

       successfully challenged his plea of guilty to lesser charges. [Citations.] The numerous

       cases that consider this issue ‘hold with apparent unanimity that when [the] defendant

       repudiates the plea bargain, either by withdrawing the plea or by successfully challenging

       his conviction on appeal, there is no double jeopardy … obstacle to restoring the

       relationship between defendant and state as it existed prior to the defunct bargain.’

       [Citation.] We agree. Anything else would give rise to intolerable manipulation and

       gamesmanship on the part of defendants. Cf. United States ex rel. Williams v. McMann,



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        436 F.2d 103, 106-07 (2d Cir. 1970) (‘For us to hold that one in [defendant’s] position

        may not be tried and sentenced upon the charge originally brought would encourage

        gamesmanship of a most offensive nature. Defendants would be rewarded for prevailing

        upon the prosecutor to accept a reduced charge and to recommend a lighter punishment in

        return for a guilty plea, when the defendant intended at the time he entered that plea to

        attack it at some future date.’).” United States v. Podde, 105 F.3d 813, 816-17 (2d Cir.

        1997).

¶ 10    A significant qualifier in the above analysis is that the defendant must withdraw or

challenge his plea voluntarily. A decision from a sister state, Banks v. State, 466 A.2d 69 (Md.

Ct. Spec. App. 1983), illustrates this point. In Banks, the defendant’s plea agreement provided

that the State would recommend a 10-year prison sentence and the defendant would be permitted

to argue that a shorter sentence was appropriate. The trial court accepted the plea and initially

committed itself to imposing a sentence no longer than 10 years. However, after reviewing a

presentence report, the trial court indicated that it would not have accepted the State’s

recommendation had it known the severity of the defendant’s criminal history. The trial court

offered the defendant the option of (1) letting his plea stand and receiving a sentence that was not

subject to the 10-year upper limit to which the trial court originally agreed or (2) withdrawing his

plea and proceeding to trial. The defendant reluctantly withdrew his plea and was found guilty at

the ensuing trial.

¶ 11    The Banks court acknowledged decisions from other jurisdictions permitting a trial court

to repudiate its previous acceptance of a guilty plea. Id. at 76 (citing State v. Wenzel, 306

N.W.2d 769 (Iowa 1981), and Barker v. State, 259 So. 2d 200 (Fla. Dist. Ct. App. 1972)).

However, the Banks court declined to follow those decisions. The Banks court concluded that



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there was no proper basis for the trial court’s decision to repudiate the plea agreement. Because

of the improper pressure that the trial court’s decision placed on the defendant, his decision to

withdraw his plea was not voluntary. Id. at 76-77. The Banks court stated:

       “[W]e hold that [the defendant] was placed in jeopardy when his guilty plea was

       accepted. That jeopardy was not removed when he was compelled to withdraw the guilty

       plea against his wishes. Consequently, his subsequent trial violated his right not to be put

       twice in jeopardy. The judgment entered as a result of the trial must be reversed. [The

       defendant’s] guilty plea must be reinstated. He is entitled to be resentenced subject to the

       plea agreement to which the judge committed himself: that is to imprisonment for not

       more than ten years ***.” Id. at 77.

In Banks, the defendant was compelled to withdraw his plea by an improper act on the trial

court’s part. Here, it appears that defendant withdrew his plea only because the trial court

permitted the State to amend the indictment. Applying the Banks court’s reasoning, this would

render the withdrawal of defendant’s plea involuntary if permitting the indictment to be amended

was improper (as was the repudiation of the defendant’s plea agreement in Banks). Otherwise,

there was no coercion of the sort that would warrant departing from the rule that a prosecution

does not terminate improperly when a defendant withdraws his or her plea. Accordingly, we

consider whether the trial court acted improperly when it permitted the State to amend the

indictment.

¶ 12   The factual allegations of the original indictment set forth the elements of the Class 2

felony offense of aggravated battery as defined in section 12-3.05(a)(4) of the Code (720 ILCS

5/12-3.05(a)(4) (West 2014)). However, the indictment specified that the charged offense was a




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violation of section 12-3.05(d)(1) of the Code (id. § 12-3.05(d)(1)). The trial court permitted the

State to amend the indictment so that the statutory citation conformed to the allegations.

¶ 13   In People v. Shipp, 2011 IL App (2d) 100197, ¶ 21, cited by the State, we held that an

amendment correcting the statutory citation for the charged offense was not error. We observed

that amending a charging instrument is permissible “if the change is not material or does not alter

the nature and elements of the charged offense.” Id. According to Shipp, “[f]ormal amendment

is warranted especially where there is no resulting surprise or prejudice to the defendant or where

the record clearly shows that the defendant was otherwise aware of the actual charge.” Id.

Significantly, “ ‘[A]n error in the citation of the statute giving rise to a charge is a mere technical

defect which is subject to amendment [citations], particularly where the sections involved are not

separate and distinct offenses but are simply different ways in which the same offense may be

committed.’ [Citation.]” Id. ¶ 22. Also, “ ‘[a]mendments of statutory provisions have been

allowed where the offense which the grand jury intended to bring was clear and the figures

printed on the indictment were only misprints.’ [Citations.]” Id. A formal amendment may be

made between the entry of a guilty plea and sentencing. People v. Gancarz, 369 Ill. App. 3d

154, 176 (2006), rev’d in part on other grounds, 228 Ill. 2d 312 (2008).

¶ 14   Defendant argues that the amendment here was prejudicial because he believed that he

was pleading guilty to an offense for which probation was an authorized sentence. The argument

is unpersuasive because permitting defendant to withdraw his plea ameliorated any prejudice

resulting from the incorrect statutory citation.

¶ 15   Defendant further argues that Shipp is inapplicable to cases where it is uncertain what

offense the grand jury intended to charge. The Shipp court acknowledged, but distinguished, two

cases—People v. Patterson, 267 Ill. App. 3d 933 (1994), and People v. Betts, 78 Ill. App. 3d 200



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2019 IL App (2d) 170030


(1979)—in which uncertainty arose when the State attempted to amend the factual allegations of

the indictment.   Shipp, 2011 IL App (2d) 100197, ¶ 27.           Here, the amendment left the

indictment’s factual allegations intact. Consequently, Patterson and Betts are inapplicable here

(as they were in Shipp).

¶ 16   Finally, defendant argues that “[t]he *** most important[ ] distinction between Shipp and

the case at bar is that Shipp does not involve the constitutional problem of the attachment and

improper termination of jeopardy.” The argument is circular: a double jeopardy violation occurs

when an indictment is improperly amended, and an indictment is improperly amended when a

double jeopardy violation occurs. We find it unpersuasive.

¶ 17   We therefore conclude that defendant’s trial on an amended charge after he withdrew his

guilty plea did not violate the prohibition against double jeopardy. We next address defendant’s

argument that the trial on the amended charge deprived him of the benefit of the bargain

underlying his guilty plea. According to defendant, the possibility that he would be sentenced to

probation was part of his bargain with the State and he is entitled to specific performance of that

bargain, which would entail restoring his guilty plea to aggravated battery with the possibility of

probation pursuant to section 12-3.05(d)(1) of the Code.

¶ 18   In People v. Whitfield, 217 Ill. 2d 177 (2005), our supreme court explained the benefit-of-

the-bargain rule applicable to plea agreements. In People v. Seyferlich, 398 Ill. App. 3d 989,

992-93 (2010), we summarized Whitfield as follows:

       “In [Whitfield], the defendant entered a negotiated guilty plea to first degree murder. He

       had agreed to serve a 25-year prison term. He claimed, however, that he had not agreed

       to serve the additional three-year term of mandatory supervised release (MSR) that

       became a part of his sentence by operation of law pursuant to section 5-8-1(d)(1) of the



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      Unified Code of Corrections (730 ILCS 5/5-8-1(d)(1) (West 2004)). The defendant did

      not argue that he had been promised he would not serve a term of MSR. Rather, he

      argued that the trial court was required to admonish him about MSR and that, because the

      trial court failed to do so, the plea agreement ‘as evinced by the record’ could not be

      deemed to make MSR part of the negotiated sentence.           [Citation.]   The defendant

      contended that he was entitled to enforce his bargain with the State. Recognizing that the

      MSR term could not legally be stricken, the defendant argued that, in order to best

      approximate his bargain with the State, his prison term should be reduced by three years.

             Our supreme court noted that the ‘benefit-of-the-bargain’ theory espoused by the

      defendant was rooted in Santobello v. New York, [404 U.S. 257 (1971)]. [Citation.] The

      Santobello Court held that ‘when a plea rests in any significant degree on a promise or

      agreement of the prosecutor, so that it can be said to be part of the inducement or

      consideration, such promise must be fulfilled.’ [Citation.] Restating that principle, the

      Whitfield court held that ‘if a defendant shows that his plea of guilty was entered in

      reliance on a plea agreement, he may have a due process right to enforce the terms of the

      agreement.’ [Citation.] The Whitfield court agreed with the defendant’s contention that

      ‘his constitutional right to due process and fundamental fairness was violated because he

      pled guilty in exchange for a specific sentence, but received a different, more onerous

      sentence than the one he agreed to.’ [Citation.]

             In granting the defendant’s request to reduce his prison term, the Whitfield court

      reasoned that ‘adding the statutorily required three-year MSR term to defendant’s

      negotiated 25-year sentence amounts to a unilateral modification and breach of the plea




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       agreement by the State, inconsistent with constitutional concerns of fundamental

       fairness.’ ”

¶ 19   Defendant argues that, because he was admonished that a sentence of probation was

available, his bargain with the State included that sentencing option. The argument fails because

this case is governed not by Whitfield but by our supreme court’s later decision in People v.

Snyder, 2011 IL 111382. In that case, the defendant pleaded guilty to intimidation and criminal

damage to property. In exchange for her plea, other charges were dismissed. As in this case, the

defendant in Snyder reached no agreement with the State about her sentence. Id. ¶ 6. When

admonishing the defendant, the trial court neglected to mention that she might be required to pay

restitution as part of her sentence. The Snyder court held that Whitfield’s benefit-of-the-bargain

theory did not apply:

               “The significant difference between Whitfield and the present case is that

       Whitfield fully negotiated for a specific prison term, whereas, here, defendant pled guilty

       with no promise as to sentencing. She pled guilty in exchange for the State’s agreement

       to drop the remaining charges against her, which the State has done. Therefore, she has

       received the full ‘benefit’ of her bargain. The remedy in Whitfield was fashioned to give

       Whitfield the ‘benefit of the bargain’ he made with the State. In Whitfield, we concluded

       that we should give weight to Whitfield’s preference, rather than simply giving him an

       opportunity to withdraw his plea. [Citation.] However, nothing in Whitfield indicates

       that this specific enforcement remedy is available where, as here, a defendant enters a

       partially negotiated plea. *** Whitfield’s remedy—based on a ‘benefit of the bargain’

       analysis—is inapplicable to defendant’s partially negotiated plea because she received the

       benefit of the bargain she made with the State.” Id. ¶ 30.



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¶ 20   As in Snyder, defendant’s agreement with the State was only that specific charges would

be dismissed. The State kept up its end of the bargain. We therefore conclude that defendant is

not entitled to the restoration of his guilty plea to aggravated battery with the possibility of

probation pursuant to section 12-3.05(d)(1) of the Code.

¶ 21   Defendant finally argues that the one-act, one-crime rule bars convictions of both count I

and count II because they were based on the same physical act. See People v. King, 66 Ill. 2d

551 (1977). The State agrees. The less serious conviction must therefore be vacated. See In re

Samantha V., 234 Ill. 2d 359, 379 (2009). Defendant argues that neither offense is more serious

than the other; as charged here, aggravated battery is nonprobationable, but, for an imprisoned

defendant like defendant here, aggravated domestic battery carries a four-year MSR term (730

ILCS 5/5-8-1(d)(6) (West 2014)) in contrast to the two-year MSR term for aggravated battery

(id. § 5-8-1(d)(2)). The State argues that aggravated battery is more serious simply because it is

nonprobationable. However, the State cites no authority to support its argument. We therefore

remand to the trial court to determine which conviction to vacate. See Samantha V., 234 Ill. 2d

at 379-80.

¶ 22                                   III. CONCLUSION

¶ 23   For the foregoing reasons, we remand to the trial court with directions that it vacate the

less serious of defendant’s two convictions.

¶ 24   Affirmed in part and remanded with directions.

¶ 25   JUSTICE HUTCHINSON, dissenting:

¶ 26   The majority omits several significant details from its summary of the facts relating to

defendant’s plea agreement with the State. The majority also stands on the false premise that

defendant was somehow “permitted” to withdraw his plea, thus ameliorating any prejudice



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resulting from the State’s incorrect statutory citation. Supra ¶ 14. I disagree. I would hold that

the initial prosecution terminated improperly when the trial court granted the State’s motion to

amend the indictment and that the subsequent prosecution was thus barred by the prohibition

against double jeopardy. I therefore dissent.

¶ 27   Defendant was twice admonished—at his arraignment and again before the trial court

accepted his plea—that he faced a range of penalties beginning with probation at the low end.

The second admonishment was consistent with the terms that the parties agreed upon following a

conference that they jointly requested under Illinois Supreme Court Rule 402 (eff. July 1, 2012).

¶ 28   Before defendant entered his plea, defense counsel raised a question about a discrepancy

between the original charging instrument—an information—and the indictment. In count I of the

information, defendant was charged with violating section 12-3.05(d)(1) of the Code, which was

properly classified as a Class 3 felony. In count I of the ensuing indictment, defendant was again

charged with violating section 12-3.05(d)(1), but this time the charge was improperly classified

as a Class 2 felony.

¶ 29   The majority clarifies that a violation of section 12-3.05(d)(1) is properly classified as a

Class 3 felony because it does not require proof of great bodily harm. Supra ¶ 4. This resolves

the issue that was initially raised by defense counsel. However, the majority fails to recognize

that the trial court responded to defense counsel’s query by alerting the State to the issue

surrounding the factual allegations charged in the indictment. Critically, this took place before

the State agreed to the terms of the plea agreement.

¶ 30   In addressing the discrepancy between the classifications in the information and the

indictment, the trial court first noted that count I of the indictment included an allegation that

defendant caused “great bodily harm” to the victim. Second, and more notably for present



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purposes, the trial court explained that “[a]ggravated battery is defined as (a)(4) which is great

bodily harm and over the age of 60 as a Class 2 [felony].” The latter comment put the State on

notice that the factual allegations contained in count I of the indictment corresponded to a

different statutory subsection—(a)(4), as opposed to (d)(1).

¶ 31   The trial court’s comments should have prompted the State to consult the Code and

clarify that the agreement called for a conviction under subsection (a)(4), rather than a conviction

under subsection (d)(1). In turn, this should have prompted the State to discover that probation is

not an authorized sentence for a violation of subsection (a)(4). Neither of these things happened.

Instead the State stood idly by while the trial court admonished defendant of the rights that he

would be waiving by pleading guilty to count I of the indictment, which, as explained above, was

charged under subsection (d)(1), a probationable offense.         After the trial court accepted

defendant’s plea, it granted the State’s request to dismiss the remaining three counts of the

indictment. Two months later, having finally recognized its folly, the State filed a mislabeled

motion seeking to amend the indictment.

¶ 32   The majority maintains that the trial court was correct to allow the amended indictment

because any resulting prejudice to defendant was cured when he was given an opportunity to

withdraw his plea. Supra ¶ 14. This overlooks the procedural posture of the proceedings. The

remaining three counts of the indictment were already dismissed. Therefore, by allowing the

State to amend the indictment (in my mind improperly), the trial court effectively voided the

entire agreement, meaning that defendant’s plea was rendered a nullity and the other three counts

were reinstated. Contrary to the majority’s holding, defendant was not given the option of

somehow keeping his existing plea intact; after his existing plea was repudiated, he was given

the option of entering a new plea under a different statutory subsection involving a different



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sentencing range. If defendant had indeed selected this option, the trial court would have been

required to deliver a new set of admonishments and the State would have been required to once

again request a dismissal of the remaining charges. The majority cannot talk its way around the

reality of this procedural quagmire. Defendant’s plea was not voluntarily withdrawn, it was

ripped up and discarded over his objection. The resulting prejudice is unavoidable.

¶ 33   Defendant is correct to argue that Shipp does not apply, because that case did not involve

a plea agreement and thus did not involve the attachment of jeopardy. The majority dismisses

this argument as “circular” and “unpersuasive.” Supra ¶ 16. This seems rather short shrift for an

issue that is apparently one of first impression, illustrated by the majority’s reliance on Banks, a

decades-old case from a different jurisdiction that neither party cited. In my view, once the trial

court accepted defendant’s plea and dismissed the remaining charges, the ship sailed on allowing

the State to amend the indictment. I would grant defendant’s request to reverse his convictions

and sentences resulting from the trial and dismiss count I of the amended indictment.




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                                   No. 2-17-0030


Cite as:                  People v. O’Brien, 2019 IL App (2d) 170030


Decision Under Review:    Appeal from the Circuit Court of De Kalb County, No. 15-CF-
                          281; the Hon. William P. Brady, Judge, presiding.



Attorneys                 James E. Chadd, Thomas A. Lilien, and Phyllis J. Perko, of State
for                       Appellate Defender’s Office, of Elgin, for appellant.
Appellant:


Attorneys                 Richard D. Amato, State’s Attorney, of Sycamore (Patrick
for                       Delfino, David J. Robinson, and Sally A. Swiss, of State’s
Appellee:                 Attorneys Appellate Prosecutor’s Office, of counsel), for the
                          People.




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