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                                Appellate Court                          Date: 2017.08.16
                                                                         13:00:20 -05'00'




                     People v. King, 2017 IL App (1st) 142297



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



District & No.     First District, Fifth Division
                   Docket No. 1-14-2297



Filed              May 12, 2017
Rehearing denied   June 19, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 12-CR-5344; the
Review             Hon. Gregory Robert Ginex, Judge, presiding.



Judgment           Affirmed in part; vacated in part.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Ann B. McLennan, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Leslie Billings, and Ashley Behncke, Assistant State’s Attorneys, of
                   counsel), for the People.



Panel              PRESIDING JUSTICE GORDON delivered the judgment of the
                   court, with opinion.
                   Justices Lampkin and Reyes concurred in the judgment and opinion.
                                              OPINION

¶1        Following a bench trial, defendant Lavona King was found guilty of home invasion,
     residential burglary, aggravated battery, and aggravated unlawful restraint. She was sentenced
     to eight years in the Illinois Department of Corrections for home invasion, five years for
     residential burglary, three years for aggravated battery, and two years for aggravated unlawful
     restraint. All sentences were to be served concurrently. On appeal, defendant contends that the
     trial court failed to conduct an inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984),
     into her claims that trial counsel “ignored” one witness and failed to impeach another.
     Defendant further contends that certain convictions must be vacated pursuant to the one-act,
     one-crime rule. We affirm in part and vacate in part.
¶2        Following a February 19, 2012, incident, defendant was charged with, inter alia, home
     invasion and residential burglary. Specifically, defendant was charged with home invasion in
     that she:
              “not being a police officer acting in the line of duty, without authority, knowingly
              entered the dwelling place of another, to wit: Sage O’Harrow, and she remained in such
              dwelling place until she knew or had reason to know that one or more persons were
              present, and while armed with a dangerous weapon, to wit: a bludgeon, she used force
              or threatened the imminent use of force upon Sage O’Harrow, within such dwelling
              place, whether or not injury occurred.”
     Defendant was also charged with residential burglary in that she “knowingly and without
     authority, entered the dwelling place of Sage O’Harrow, located at 421 North Oak Park
     Avenue *** with the intent to commit therein a felony, to wit: kidnapping.”
¶3        At trial, Oak Park police officer Michael Kelly testified that on the morning of January 23,
     2012, he responded to a “custody dispute call” at 421 North Oak Park Avenue. When he
     arrived, defendant was “nervous and upset” about her children who were “staying” at that
     address. He then spoke to defendant’s sister, Sage O’Harrow, and mother, Robin O’Harrow,
     and learned that defendant had a visitation scheduled with her children at 5 p.m. Kelly further
     learned that the visit could still take place if defendant left. Although defendant left, Kelly was
     called back to the location less than an hour later. Defendant was then removed from the
     location.
¶4        Maya King, defendant’s daughter, testified that in February 2012, she was 13 years old and
     lived with her grandmother Robin O’Harrow, her aunt Sage O’Harrow, and her 5-year-old
     brother Solomon. Maya lived with Robin because defendant “was not able to take care of [her]
     at the time.” They lived on the first floor of a two-flat, and Sage had an apartment in the
     basement.
¶5        On the morning of February 18, 2012, Maya heard “like a glass breaking noise.” She
     thought it was construction noise and went back to sleep. A few minutes later defendant
     walked in and said, “I am taking you and we have to go look for Solomon.” Maya first said no
     but then left the bed and followed defendant. She observed defendant proceed toward Sage’s
     basement “apartment area.” Maya then heard “a lot of yelling and ruckus.” Specifically, she
     heard defendant say that defendant was going to murder Sage. Maya grabbed an iron skillet.
     She then “thought better of it,” put the skillet down, and called her grandmother and the police.
     She waited in her room until the police arrived and then let officers inside. At this point, she


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       observed defendant and Sage on the stairs and heard Sage calling for help. Sage was sitting on
       top of defendant. Defendant was facedown and was holding a wrench. Defendant was taken
       into custody by police officers. Maya was scared because defendant was not scheduled to be at
       the house.
¶6         Sage O’Harrow, defendant’s sister, testified that when she woke up defendant was
       standing over her with a “black and silver wrench.” Sage told defendant that she should not “be
       here.” When defendant asked where Solomon was, Sage replied that he was not there.
       Defendant then “started swinging the wrench” at Sage and hit her in the head, hand, elbow, and
       arm. Defendant also pulled Sage’s hair. As they struggled, defendant said she was going to kill
       Sage. At one point, Sage pulled defendant onto the stairs and defendant fell. Sage got on top of
       defendant and “started screaming” to Maya to call the police.
¶7         Robin O’Harrow, defendant’s mother, testified that the Department of Children and
       Family Services (DCFS) placed Maya and Solomon with her in January 2012. Defendant was
       to have supervised visitation at a DCFS office. Defendant did not have a key to Robin’s home
       and was told that she was not allowed inside. In January 2012, defendant came to the home.
       The police were called, and defendant was told to leave. Defendant did not have permission to
       enter the home on February 18, 2012. When Robin left that morning, the doors to the house
       were locked. When she later returned, she noticed that the glass in her bedroom door was
       broken.
¶8         Oak Park police officer Holly Smith testified that she arrived at 421 North Oak Park
       Avenue and proceeded to the basement stairs. There, she observed Sage on top of defendant.
       Defendant was holding a wrench. Smith told defendant 10-12 times to let go of the wrench.
       Ultimately, defendant was taken into custody.
¶9         Defendant testified that she went to visit her children at her mother’s house. She had a key
       to the house. She became worried when no one answered the door. Defendant then walked to
       her mother’s restaurant to ask about her mother. Defendant thought her mother was missing
       because her mother was not answering the phone. She went back to her mother’s house and
       walked inside through the unlocked back door. Defendant found Maya, who was asleep, and
       awakened her to get dressed. Defendant asked Maya where everyone was, and after learning
       that Sage was downstairs sleeping, defendant went to talk to Sage. Defendant opened the door
       to the basement and called out to Sage. Defendant denied holding a wrench. Sage “like shot
       up” and asked what defendant was “doing here.” Sage then left the bed and began screaming at
       and pushing defendant. As they approached the stairs, Sage picked up a wrench. Defendant
       tripped on the stairs and Sage “fell on top” of her. Defendant never had control of the wrench
       and did not bring it with her. She went to the house because she was supposed to have a visit
       with her children. Although the wrench belonged to her, she had left it at her mother’s house.
¶ 10       The trial court found defendant guilty of home invasion, residential burglary, aggravated
       domestic battery, and aggravated unlawful restraint. At sentencing, the following exchange
       took place:
                   “THE DEFENDANT: There was no evidence to support my end of this deal. I
               don’t understand why this happened at all. My sister took my dog, broke into my house.
               She took my dog.
                   THE COURT: [Defendant], I will caution you. You already testified.
                   THE DEFENDANT: There was one call. I mean I have a witness.


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                    THE COURT: I considered your testimony.
                    THE DEFENDANT: A witness wasn’t called.
                    THE COURT: If you have any questions—
                    THE DEFENDANT: This is ridiculous.
                                                      ***
                    THE DEFENDANT: I don’t understand this at all. She is—she has a background.
                    THE COURT: Very well.
                    THE DEFENDANT: She is on medication.”
¶ 11        The parties then made arguments in aggravation and mitigation. When the trial court asked
       defendant if there was anything she wished to tell the court, defendant responded:
                    “I don’t know what else to say. These are my kids. It was like domestic insanity
                going on. I have like a little 13 year old that wanted to run around with my 21-year old
                sister.
                    I asked her to pull her medical background, her criminal background. She has
                heroin possession charges.
                    I didn’t want her in the house with my sister. We were fighting like a month
                straight. She robbed my house. She took my dog. She has my daughter turned against
                me.”
¶ 12        Ultimately, the trial court sentenced defendant to eight years in prison for home invasion,
       five years for residential burglary, three years for aggravated battery and two years for
       aggravated unlawful restraint. All sentences were to be served concurrently.
¶ 13        On appeal, defendant first contends that the trial court failed to conduct a preliminary
       inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), into her claims that she was
       denied the effective assistance of counsel by counsel’s failure to call a witness and to impeach
       Sage with a prior conviction and her use of medication and heroin. The State responds that no
       Krankel inquiry was necessary because defendant’s claims were ambiguous and pertained only
       to matters of trial strategy.
¶ 14        Our supreme court, beginning with Krankel, has instructed that when a defendant presents
       a pro se posttrial claim of ineffectiveness of counsel, the trial court should conduct an inquiry
       to examine the factual basis of the claim. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). If a
       defendant’s pro se allegations of ineffective assistance of counsel show possible neglect, new
       counsel is appointed to represent the defendant in a full hearing on her claims. Id. at 78.
¶ 15        If a defendant does not make a valid ineffective assistance claim, she does not trigger the
       need for the trial court to inquire. People v. Taylor, 237 Ill. 2d 68, 75-77 (2010). Although the
       pleading requirements for raising a pro se claim of ineffectiveness of counsel are “somewhat
       relaxed,” a defendant must still satisfy minimum requirements to trigger a Krankel inquiry by
       the trial court. People v. Washington, 2015 IL App (1st) 131023, ¶ 11. “Mere awareness by a
       trial court that defendant has complained of counsel’s representation imposes no duty on the
       trial court to sua sponte investigate defendant’s complaint [citation]; however, when defendant
       presents a pro se claim of ineffective assistance, the trial court should first examine the factual
       basis of defendant’s claim [citation].” Id. Whether the trial court properly conducted a Krankel
       inquiry presents a legal question and is subject to de novo review. People v. Jolly, 2014 IL
       117142, ¶ 28.


                                                    -4-
¶ 16        Recently, in People v. Ayres, 2017 IL 120071, our supreme court considered whether the
       defendant’s bare allegation of “ineffective assistance of counsel” contained in a posttrial
       motion to withdraw his guilty plea and vacate his sentence triggered the trial court’s duty to
       conduct a preliminary Krankel inquiry, even though that allegation lacked any explanation or
       supporting facts. The court concluded a defendant’s “clear claim asserting ineffective
       assistance of counsel, either orally or in writing, *** is sufficient to trigger the trial court’s duty
       to conduct a Krankel inquiry.” Id. ¶ 18.
¶ 17        Thus, the question before this court is whether defendant did enough to trigger the trial
       court’s duty to inquire further, that is, did defendant “bring [her] claim to the court’s attention.”
       Id. ¶ 24. Defendant admits that her “claims were not specifically couched in terms of a formal
       document claiming ineffective assistance of counsel” but argues that the trial court was still
       “obligated” to take notice and inquire. However, in the case at bar, defendant’s statements fall
       short of a clear claim of ineffective assistance of counsel that would trigger the trial court’s
       duty to conduct a preliminary Krankel inquiry.
¶ 18        Initially, we note, as defendant concedes, that at no point in the proceedings did defendant
       state, orally or in writing, that counsel was ineffective. With regard to defendant’s allegation
       on appeal that a witness was not presented at trial, the record reveals that during sentencing
       defendant stated that Sage broke into her house and stole her dog. Defendant further stated that
       “[t]here was one call” and that she had a “witness.” Based upon the record, we cannot
       determine whether the witness to which defendant referred witnessed the alleged break-in and
       theft of defendant’s dog or the events at issue in this case. Although defendant’s statement
       makes it clear that she is upset with Sage and did not understand “why this happened at all,” it
       is not clear that defendant is complaining about counsel. In other words, defendant failed to
       make a “clear claim asserting ineffective assistance of counsel, *** sufficient to trigger the
       trial court’s duty to conduct a Krankel inquiry.” Id. ¶ 18.
¶ 19        Defendant also stated, after the trial court asked if she had anything that she wished to tell
       the court before the court imposed sentence, that:
                     “I don’t know what else to say. These are my kids. It was like domestic insanity
                going on. I have like a little 13 year old that wanted to run around with my 21-year old
                sister.
                     I asked her to pull her medical background, her criminal background. She has
                heroin possession charges.
                     I didn’t want her in the house with my sister. We were fighting like a month
                straight. She robbed my house. She took my dog. She has my daughter turned against
                me.”
¶ 20        Defendant made these statements in allocution, and they can be interpreted to explain
       defendant’s actions, that is, defendant considered Sage to be a bad influence on Maya and
       blamed Sage for turning Maya against defendant. Although defendant stated that she “asked
       her,” presumably trial counsel, to pull “her,” presumably Sage’s, medical and criminal
       background and certainly expressed that she was unhappy with Sage and Sage’s influence on
       her daughter, she did not specifically state that she was unhappy with trial counsel’s
       representation. See Washington, 2015 IL App (1st) 131023, ¶ 11 (the trial court’s “[m]ere
       awareness” that the defendant has complained about counsel’s representation imposes no duty
       on the trial court to sua sponte investigate her complaint). While defendant may have
       insinuated that counsel did not investigate Sage to defendant’s satisfaction, defendant did not

                                                      -5-
       assert a clear claim that trial counsel was ineffective. Absent defendant asserting a clear claim
       of ineffective assistance of counsel, the trial court’s duty to conduct a Krankel inquiry was not
       triggered. See Ayres, 2017 IL 120071, ¶ 18 (a defendant’s “clear claim asserting ineffective
       assistance of counsel, either orally or in writing, *** is sufficient to trigger the trial court’s duty
       to conduct a Krankel inquiry”).
¶ 21       Defendant next contends that certain convictions must be vacated pursuant to the one-act,
       one-crime rule. Although defendant did not raise this error before the trial court, arguments
       relating to the one-act, one-crime doctrine are reviewed under the second prong of the
       plain-error rule because the potential for a surplus conviction implicates the integrity of the
       judicial process. People v. Nunez, 236 Ill. 2d 488, 493 (2010).
¶ 22       Under the one-act, one-crime rule, multiple convictions may not be based on the same
       physical act. See People v. King, 66 Ill. 2d 551, 566 (1977). Since multiple convictions cannot
       be based on precisely the same physical act, “a court first determines whether a defendant’s
       conduct consisted of separate acts or a single physical act.” People v. Rodriguez, 169 Ill. 2d
       183, 186 (1996). An “act” is defined as “any overt or outward manifestation which will support
       a different offense.” King, 66 Ill. 2d at 566. The question of whether a defendant’s conviction
       violates the one-act, one-crime rule is subject to de novo review. Nunez, 236 Ill. 2d at 493.
¶ 23       Defendant first contends that her convictions for home invasion and residential burglary
       violate the one-act, one-crime rule. She relies on People v. McLaurin, 184 Ill. 2d 58 (1998), to
       argue that her conviction for residential burglary must be vacated because both her home
       invasion and residential burglary convictions were based upon the same act, that is, her entry
       into the residence at 421 North Oak Park Avenue.
¶ 24       To determine whether simultaneous convictions violate the one-act, one-crime rule, this
       court performs a two-step analysis. People v. Miller, 238 Ill. 2d 161, 165 (2010). First, we
       determine whether the defendant’s conduct in committing the two offenses consisted of
       multiple physical acts or a single physical act. Id. If it took multiple physical acts to commit the
       two offenses, both convictions can stand even if the acts were interrelated. Rodriguez, 169 Ill.
       2d at 188-89. “Multiple convictions are improper,” however, “if they are based on precisely the
       same physical act.” Miller, 238 Ill. 2d at 165.
¶ 25       If the criminal conduct involved multiple physical acts, we proceed to the second step of
       the analysis, which is to ask whether one offense is a lesser included offense of the other
       offense. Id. The one-act, one-crime rule forbids simultaneous convictions of the greater
       offense and the lesser included offense. Id. When deciding whether a charged offense is a
       lesser included offense of another charged offense, we use the abstract-elements approach. Id.
       at 172-73. Under the abstract-elements approach, we compare the statutory elements of the two
       offenses. Id. at 166. If all the elements of one offense are included in the second offense and if
       the first offense contains no element that the second offense lacks, the first offense is a lesser
       included offense of the second. Id. Pursuant to our de novo review (Nunez, 236 Ill. 2d at 493),
       we will apply this two-step analysis to the offenses of home invasion and residential burglary.
¶ 26       First, we must determine whether the conduct by which defendant committed these two
       offenses consisted of “precisely the same physical act” as opposed to multiple physical acts.
       See Miller, 238 Ill. 2d at 165. To commit home invasion, as that offense is defined in section
       19-6(a)(1) of the Criminal Code of 2012 (720 ILCS 5/19-6(a)(1) (West 2012)), defendant had
       to do the following physical acts: (1) “enter[ ] the dwelling place of another” and (2) “use[ ]
       force” against someone in the dwelling place. To commit residential burglary, defendant had to

                                                      -6-
       perform only one physical act, that is, enter a dwelling place. See 720 ILCS 5/19-3(a) (West
       2012).
¶ 27       Accordingly, the conduct comprising home invasion and residential burglary does not
       consist of precisely the same physical act; rather, the conduct consists of multiple physical
       acts, i.e., entering the dwelling place and using force against someone inside. See Rodriguez,
       169 Ill. 2d at 188-89. Therefore, the first step of the Miller analysis does not prevent
       simultaneous convictions for home invasion and residential burglary. See Miller, 238 Ill. 2d at
       165.
¶ 28       The second step of the analysis asks whether residential burglary is a lesser included
       offense of home invasion. Id. A comparison of statutory elements of the two offenses reveals
       that the lesser offense of residential burglary has an element that the greater offense of home
       invasion does not, specifically, having, at the moment of the unauthorized entry or the moment
       of the unauthorized remaining, an “intent to commit therein a felony or theft.” 720 ILCS
       5/19-3(a) (West 2012). Section 19-3(a) provides: “A person commits residential burglary
       when he or she knowingly and without authority enters or knowingly and without authority
       remains within the dwelling place of another, or any part thereof, with the intent to commit
       therein a felony or theft.” 720 ILCS 5/19-3(a) (West 2012).
¶ 29       The statute defining home invasion, on the other hand, does not mention entering or
       remaining in a dwelling place with the intent to commit a felony or theft. Rather, section
       19-6(a)(1) provides that:
                    “(a) A person who is not a peace officer acting in the line of duty commits home
                invasion when without authority he or she knowingly enters the dwelling place of
                another when he or she knows or has reason to know that one or more persons is
                present *** and
                         (1) While armed with a dangerous weapon, other than a firearm, uses force or
                    threatens the imminent use of force upon any person or persons within such
                    dwelling place whether or not injury occurs ***.” 720 ILCS 5/19-6(a)(1) (West
                    2012).
¶ 30       Home invasion, in contrast to residential burglary, does not require that the defendant enter
       the dwelling place with the specific intent to commit a felony or theft inside the dwelling place.
       The only mental state that home invasion requires at the moment of entry is knowledge: i.e.,
       the defendant knows that she is entering the dwelling place, and she knows or has reason to
       know that someone is present in the dwelling place. Residential burglary is not therefore a
       lesser included offense of home invasion, because residential burglary has an element that
       home invasion lacks, namely, entering the residence or remaining in the residence with the
       intent to commit a felony or theft therein. See Miller, 238 Ill. 2d at 166.
¶ 31       Accordingly, the simultaneous convictions of home invasion and residential burglary do
       not violate the one-act, one-crime rule because (1) the criminal conduct that was the basis of
       those offenses consisted of multiple physical acts instead of precisely the same physical act;
       and (2) under the abstract-elements approach, residential burglary is not a lesser included
       offense of home invasion. See id. at 165.
¶ 32       In so holding, we acknowledge that in People v. McLaurin, 184 Ill. 2d 58, 106 (1998), our
       supreme court concluded that the offenses of home invasion and residential burglary were
       “carved from the same physical act of [the] defendant’s entering the dwelling [place]” and that


                                                   -7-
       the residential burglary conviction therefore had to be vacated. However, because the
       McLaurin court did not specifically address the fact that the offense of home invasion requires
       the additional physical act of causing injury to a person in a dwelling, we do not interpret
       McLaurin as foreclosing a determination that home invasion consists of multiple physical acts.
       We also note that panels of this court have similarly distinguished McLaurin. See People v.
       Lee, 2012 IL App (1st) 101851, ¶ 54 (holding residential burglary and home invasion require
       the State to prove different elements for each crime and, thus, do not violate the one-act,
       one-crime rule). See also People v. Price, 2011 IL App (4th) 100311, ¶¶ 27-30 (distinguishing
       McLaurin because the court failed to address (1) its earlier decision in Rodriguez finding that
       where multiple acts are present their interrelationship does not preclude multiple convictions,
       (2) that the offense of home invasion required an additional element, i.e., the physical act of
       intentionally causing injury to a person in the dwelling, and (3) that its determination regarding
       home invasion and residential burglary was inconsistent with its earlier holding in the same
       case regarding the offenses of intentional murder and home invasion). But see, e.g., People v.
       Jones, 2015 IL App (2d) 120717, ¶ 42 (following McLaurin); People v. Johnson, 347 Ill. App.
       3d 570, 577 (2004) (following McLaurin).
¶ 33       We finally note that McLaurin did not expressly overrule those prior cases that held
       residential burglary and home invasion were not carved from the same physical act. See People
       v. Lobdell, 121 Ill. App. 3d 248, 252 (1983) (“Since entry into the victim’s home was only part
       of the home invasion offense and the sole act of the residential burglary offense, the two
       offenses were not carved from the same physical act.”); People v. Jones, 148 Ill. App. 3d 133,
       145 (1986) (following Lobdell); People v. Govednik, 150 Ill. App. 3d 717, 723-24 (1986)
       (following Lobdell). Defendant’s argument must therefore fail.
¶ 34       Defendant finally contends that her convictions for aggravated battery and aggravated
       unlawful restraint violate the one-act, one-crime rule because they are based upon the same
       physical act. The State concedes that defendant’s conviction for aggravated unlawful restraint
       must be vacated pursuant to the one-act, one-crime rule because defendant’s action of
       unlawfully restraining Sage was inherent in the aggravated battery. We therefore vacate
       defendant’s conviction for aggravated unlawful restraint.
¶ 35       For the reasons stated above, we vacate defendant’s conviction for aggravated unlawful
       restraint. We affirm the judgment of the circuit court of Cook County in all other aspects.

¶ 36      Affirmed in part; vacated in part.




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