                                                                            FIFTH DIVISION
                                                                            February 26, 2010


Nos. 1-08-0862, 1-08-1025 cons.


THE PEOPLE OF THE STATE OF ILLINOIS,                         )      Appeal from the
                                                             )      Circuit Court of
               Plaintiff-Appellee,                           )      Cook County.
                                                             )
       v.                                                    )      No. 04 CR 24248
                                                             )
DAVON MABRY,                                                 )      Honorable
                                                             )      Marcus Salone,
                                                             )      Judge Presiding.
               Defendant-Appellant.                          )


       JUSTICE LAVIN delivered the opinion of the court:

       In the wake of an armed robbery that resulted in the shooting death of a store owner on

South Halsted Street in the city of Chicago, defendant Devon Mabry was arrested, charged with

first degree murder, armed robbery and burglary. He was tried and found guilty of first degree

murder and armed robbery by a jury and was initially sentenced by the trial judge to a period of

75 years’ imprisonment for the murder, to be served concurrently with 30 years’ imprisonment

for armed robbery. After defendant had filed his notice of appeal, the trial court apparently

recognized a sentencing error and altered the term to 44 years’ imprisonment for murder and 25

years for discharging a firearm, to be served consecutively with 6 years for armed robbery. For

the several reasons detailed below, we affirm defendant’s convictions for first degree murder and

armed robbery, but vacate the sentences and remand to the trial court for resentencing.

                                        BACKGROUND

       Defendant Devon Mabry, James Higgins, and Andre Howard were charged with first
Nos. 1-08-0862, 1-08-1025 cons.

degree murder and armed robbery for the shooting death of In Hwang on September 10, 2004, at

his place of business at 93rd and Halsted in Chicago. While in custody, defendant made a

videotaped statement to Assistant State’s Attorney (ASA) Robert Robertson. Defendant’s

motion to suppress his inculpatory statements was denied and his videotaped statement was

published for the jury at trial.

        In the videotape, defendant explained that on September 10, 2004, around 2 p.m., he,

Higgins, and Howard met outside an apartment building. There they discussed Higgins’ dream

that the three of them had robbed Hwang’s beauty supply store. Because the dreamed criminal

venture was successful, the three thought they could do it in real life. Thus began their planning

of the robbery, the main feature of which was the use of use two guns– a .22-caliber revolver and

a BB gun that resembled a .45-caliber automatic.

        Fantasy became an unfortunate and fatal reality when the three men entered the victim’s

store, armed and intent on robbery. The then 18-year-old defendant walked in first, pulled the

revolver out of his pocket, stood about five feet from Hwang, and pointed the gun at Hwang’s

chest. Higgins and defendant asked Hwang to open the register, but Hwang said he could not

open it. Defendant walked around to the other side of the counter, seeking to impel Hwang to

open the register by putting his gun against the victim’s neck. Defendant said he began to get

upset because the robbery was going according to neither the dream nor their plan. Howard

grabbed some T-shirts from the racks and ran out of the store. After failing in his attempt to get

the victim to open the register, defendant elected to steal everything out of Hwang’s pockets,

which basically consisted of a small amount of cash in a wallet and the victim’s cell phone. At


                                                 2
Nos. 1-08-0862, 1-08-1025 cons.

that point, Hwang told defendants that he knew their faces and where they hung out.

       Defendant and Higgins then began to leave, but upon reaching the door, defendant

considered Hwang’s statement about his ability to identify the perpetrators and then decided to

shoot the store owner to eliminate the potential witness because he was frustrated by the botched

robbery and was scared Hwang would call the police.

       Prior to trial, defendant filed a motion to suppress his custodial statements. At the

motion- to-suppress hearing, a number of witnesses were called regarding the events surrounding

defendant’s arrest and subsequent interrogation. Officer Shannon testified that he, Officer

Maulin, and Officer Flagg arrested defendant at 12:12 p.m. on September 11, 2004, the day after

the shooting and robbery. Upon arresting defendant, Officer Shannon said that he read defendant

his Miranda rights. According to Shannon, defendant acknowledged that he understood his

rights and stated that he did not wish to answer any questions. The three arresting officers

arrived at Area 2 police headquarters at 1 p.m., placed defendant in an interview room, and

turned him over to homicide detectives Filipiak and Fitzmaurice.

       Detective Filipiak testified that he and Detective Fitzmaurice spoke with defendant

around 1 p.m. Detective Filipiak, who testified that he was unaware that the arresting officer was

told that defendant had invoked his right to remain silent, then advised defendant of his Miranda

rights. According to Filipiak, defendant acknowledged that he understood each right, but then

defendant provided an exculpatory statement. Defendant denied receiving his Miranda rights on

either the occasion of his arrest by Officer Shannon or by any of the investigating detectives.

       Detective Filipiak testified that the detectives interviewed defendant again at 1:45 p.m.–


                                                 3
Nos. 1-08-0862, 1-08-1025 cons.

this time at defendant’s request– and Mirandized defendant. Detective Filipiak stated that

defendant waived his Miranda rights and inculpated himself. Again, defendant denied being

advised his Miranda rights. Detectives Fitzmaurice and Filipiak spoke with defendant again at

6:45 p.m. According to Detective Filipiak, defendant waived his Miranda rights and made

another inculpatory statement. Again, defendant denied receiving his Miranda rights.

       Detective Spagnola testified that he and Detectives Harrison and Pacelli interviewed

defendant on September 12, 2004, at 3:35 a.m. Detective Spagnola stated that defendant was

wearing sports-style attire. Detective Spagnola testified that Detective Harrison read defendant

his rights, and defendant understood his rights and gave an inculpatory statement. Detective

Spagnola then called the felony review unit, prompting the later arrival of ASA Robertson.

       ASA Robertson testified that he interviewed defendant in Detective Spagnola’s presence

and that he read defendant his Miranda rights. After this conversation with ASA Robertson,

defendant gave a videotaped statement. In the statement, defendant acknowledged that ASA

Robertson Mirandized him prior to their first conversation and that he waived those rights.

Defendant signed a consent to videotape. Defendant also stated that he was treated “very fairly”

by the police and that he had no complaints about his treatment.

       At the hearing on the motion to suppress, defendant testified that the police approached

him around noon on September 11, 2004, put him on their car, handcuffed him, placed him in the

backseat of the car, and transported him to the police station. Once there, the officers placed him

in an interview room on a steel bench and handcuffed him to a ring on the wall for five to six

hours, during which time the police officers entered and asked him questions without informing


                                                 4
Nos. 1-08-0862, 1-08-1025 cons.

him of his rights. Defendant testified that he was dressed in basketball attire, which was

unsuitable to the temperature of the air-conditioned room, and that he was cold, uncomfortable,

and unable to move around to keep warm because he was seated on a metal bench and

handcuffed to a metal ring on the wall. Defendant testified that he asked the police to turn the air

conditioning down, to provide him with more clothes, and to allow him to make a phone call, but

that each request was denied.

       Defendant further testified that after speaking with Detective Spagnola, the detective

walked him back toward the interview room, grabbed him in a forceful manner, pushed him into

the room, and handcuffed him to the wall. Defendant stated that ASA Robertson was the first to

read him his Miranda rights, but denied that ASA Robertson told him he had the right to remain

silent or that anything he said could be used against him. Defendant testified that the first time

he talked to anyone about the murder was on the videotape. Significant for our discussion,

defendant did not testify that he EVER invoked his right to remain silent.

       Defendant moved to suppress his custodial statements on multiple grounds, first asserting

that he never received his Miranda warnings prior to the time that the ASA got involved.

Second, defendant argued that his inculpatory statements were obtained as a result of physical,

psychological, and mental coercion in violation of the fifth and fourteenth amendments. Third,

defendant argued that the inculpatory statements were obtained as the result of a warrantless

arrest in violation of the fourth amendment. At the end of the evidence, the trial court denied

defendant’s motion to suppress, finding “that [defendant] has not been truthful here today.

There’s no showing that the defendant’s willpower was overborne in any way. There’s


                                                 5
Nos. 1-08-0862, 1-08-1025 cons.

absolutely no showing that [defendant’s] statement was anything less than voluntary.” Defendant

again raised this issue in his motion for a new trial.

        During voir dire, the trial court asked a group of 60 to 80 potential jurors to indicate by a

show of hands whether they would give the testimony of a police officer greater credibility than

that of any other witness simply because that person is a police officer. The trial court then asked

if anybody would give the testimony of police officers less credibility than that of any other

witness. Two jurors responded to these questions. Defendant requested that the trial court ask

each potential juror individually the questions regarding police officer credibility, but the trial

court refused to do so.

        The trial court then called potential jurors in three separate venire groups for individual

questioning. Defendant again requested the trial court individually question each potential juror

on the issue of police officer credibility, but the court refused to do so. Instead, the trial court re-

asked the first venire as a group if they would afford greater or less weight to police officer

testimony. The court also asked the second and third venire the questions regarding police

officer credibility as a group, but did not ask the questions to each individual juror.

        At the conclusion of the trial, the jury returned guilty verdicts for first degree murder and

armed robbery. Defendant did not request separate verdict forms for first degree murder. After a

sentencing hearing, the trial court declined to impose the death penalty and instead sentenced

defendant to 75 years’ imprisonment. Defendant filed a notice of appeal on March 11, 2008. On

March 20, 2008, the trial court granted the State’s motion to correct the mittimus to specify the

respective sentences for armed robbery and for first degree murder. Over objection for lack of


                                                   6
Nos. 1-08-0862, 1-08-1025 cons.

jurisdiction, the trial court sentenced defendant to 69 years’ imprisonment for murder to run

consecutively with 6 years’ imprisonment for armed robbery.

        On appeal, defendant contends that: (1) he received ineffective assistance of counsel

when trial counsel failed to move to suppress his inculpatory statements based on alleged

violations of his allegedly invoked right to remain silent; (2) trial counsel’s failure to preserve

defendant’s right to remain silent constitutes plain error for the purposes of appellate review; (3)

the trial court denied defendant a fair trial by jury because it failed to properly and adequately

determine during voir dire whether potential jurors would afford testifying police officers greater

credibility than other witnesses; (4) the trial court erred in failing to provide separate first degree

murder verdict forms for each theory of first degree murder; (5) remand is required because the

trial court modified defendant’s sentence without jurisdiction; and (6) the trial court failed to

consider defendant’s rehabilitative potential and imposed an excessive sentence. For the reasons

expressed below, we reject each of the claimed errors but for one aspect of sentencing.

                                             ANALYSIS

        The first issue on appeal is the claim that defendant received ineffective assistance of

counsel when trial counsel failed to move to suppress defendant’s inculpatory statements based

on an alleged violation of defendant’s right to remain silent. To determine whether a defendant

received ineffective assistance of counsel, we apply the two-pronged test established in

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail,

defendant must show both that: (1) counsel's representation was so deficient as to fall below an

objective standard of reasonableness, and (2) the deficient performance so prejudiced defendant


                                                   7
Nos. 1-08-0862, 1-08-1025 cons.

as to deny him a fair trial. People v. Perry, 224 Ill. 2d 312, 341 (2007).

        Under the first prong, there is a strong presumption that trial counsel's action or inaction

resulted from sound trial strategy. Perry, 224 Ill. 2d at 341-42. To overcome this strong

presumption, defendant must demonstrate trial counsel’s decision was so unreasonable and

irrational that no reasonably effective defense attorney faced with similar circumstances would

pursue that strategy. People v. King, 316 Ill. App. 3d 901, 916 (2000). The question of whether

to file a motion to suppress evidence is traditionally considered a matter of trial strategy and

should be left to the trial counsel's discretionary judgment. People v. Morris, 229 Ill. App. 3d

144, 157 (1992). Thus, reviewing courts should avoid the temptation of using hindsight to

second-guess counsel’s strategy. People v. Hill, 308 Ill. App. 3d 691, 707 (1999). Under the

second prong of the Strickland test, defendant must prove there is a reasonable probability that,

but for counsel's errors, the result of the proceeding would have been different. Perry, 224 Ill. 2d

at 342. If either prong of the Strickland test is not met, defendant's claim must fail. Perry, 224

Ill. 2d at 342.

        Defendant submits that trial counsel’s failure to raise any argument regarding his

invocation of his right to remain silent constitutes ineffective assistance of counsel, despite the

multipronged motion to suppress that was filed and argued. Defendant further contends that the

State cannot plausibly dispute that defendant invoked his right to remain silent upon arrest, given

that the State’s own witness, Officer Shannon, testified to that effect. In this regard, the present

case is analogous to People v. Reed, 298 Ill. App. 3d 285 (1998), where defendant argued that

trial counsel provided ineffective assistance during the hearing on his motion to suppress. In


                                                  8
Nos. 1-08-0862, 1-08-1025 cons.

Reed, counsel at trial argued that since the arresting officers failed to give defendant his Miranda

warnings, the court should have suppressed any statements he made while at the police station.

Reed, 298 Ill. App. 3d at 298. On appeal, however, defendant contended his counsel was

ineffective for failing to argue that the police had denied defendant's request to have an attorney

present during questioning. Reed, 298 Ill. App. 3d at 298. The court found no ineffective

assistance, noting that “presumably, after interviewing the defendant and other witnesses, counsel

determined that defendant did not invoke his right to counsel during any of the interrogation

sessions.” Reed, 298 Ill. App. 3d at 298. The court held that “counsel provided reasonable

professional assistance by proceeding on the theory that the detectives failed to give defendant

Miranda warnings.” Reed, 298 Ill. App. 3d at 298.

       In the case at bar, defendant testified that the police officers never read him his Miranda

rights and that it was not until ASA Robertson arrived, prior to his videotaped statement, that he

first received his Miranda warnings. The gravamen of defendant’s testimony instead focused on

the conditions of his custody and interrogation, claiming that he was physically abused, kept in

an uncomfortable position in a cold interrogation room for many hours and was not allowed to

make any phone calls to his family members. Trial counsel’s motion to suppress veritably

tracked the defendant’s testimony during the hearing. First, trial counsel asserted that defendant

never received his Miranda warnings. Trial counsel argued that defendant’s inculpatory

statements were obtained as a result of physical, psychological, and mental coercion in violation

of the fifth and fourteenth amendments. Trial counsel also argued that the inculpatory statements

were obtained as the result of a warrantless arrest in violation of the fourth amendment. The trial


                                                 9
Nos. 1-08-0862, 1-08-1025 cons.

court was not persuaded that the statement should have been suppressed.

        Given the above, we find nothing unreasonable or irrational with this trial strategy, even

if it proved unsuccessful. People v. Palmer, 162 Ill. 2d 465, 482 (1994). In light of defendant’s

own testimony, trial counsel presumably determined that defendant did not receive Miranda

warnings and did not invoke his right to remain silent. “The reasonableness of counsel's actions

must be evaluated from counsel's perspective at the time of the alleged error, and without

hindsight, in light of the totality of circumstances, and not just on the basis of isolated acts.”

People v. Nowicki, 385 Ill. App. 3d 53, 82, (2008). We decline defendant’s invitation to use

hindsight to second-guess trial counsel’s strategy or the ways in which he implemented that

strategy. In view of our disposition of the first prong of the Strickland analysis, we need not

address whether defendant suffered prejudice as a result of defense counsel's alleged deficiencies.

People v. Rodriguez, 312 Ill. App. 3d 920, 926 (2000).

        The next, related issue relates to the claim that counsel was ineffective for failing to

preserve the issue of the failure of the police to honor the defendant’s right to remain silent; but

as noted above, according to both the written motion and the defendant’s suppression hearing

testimony, he was not advised of his Miranda rights after he was arrested. Defendant also made

no claim at the suppression hearing that he had invoked his right to remain silent at the time of

his arrest. See People v. Andras, 241 Ill. App. 3d 28, 35 (1992). For the first time on appeal,

defendant argues that Officer Shannon’s testimony establishes that he did, in fact, invoke his

right to remain silent and that the police officers did not scrupulously honor that decision.

Defendant’s failure to raise this assertion in the trial court constitutes forfeiture. Andras, 241 Ill.


                                                  10
Nos. 1-08-0862, 1-08-1025 cons.

App. 3d at 36; People v. Womack, 216 Ill. App. 3d 540 (1991). Nonetheless, defendant requests

that we review whether the admission of defendant’s inculpatory videotaped statement after he

invoked his right to remain silent constitutes plain error.

        This court will review unpreserved error when a clear and obvious error occurs and: (1)

the evidence is closely balanced; or (2) that error is so serious that it affected the fairness of the

defendant's trial and challenged the integrity of the judicial process. People v. Bannister, 232 Ill.

2d 52, 65 (2008). In addressing defendant’s plain error contention, we must first determine

whether there was any error at all. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

        Although only mentioned in a footnote in his counsel’s appellate brief, defendant

suggests that this error warrants reversal because it is so fundamental and of such magnitude that

defendant would be denied the right to a fair trial without this court’s consideration of the issue.

We are not persuaded that any such error occurred. As discussed in detail above, trial counsel

provided effective assistance when he moved to suppress defendant’s inculpatory statements on

three separate grounds. Having found that trial counsel did not err in failing to argue that

defendant’s allegedly invoked right to remain silent was violated, there can be no plain error.

People v. Bannister, 232 Ill. 2d 52, 72 (2008). Therefore, defendant was not denied a fair trial by

his trial counsel’s failure to move to suppress his inculpatory statements based on violations of

his right to remain silent.

        Next, defendant claims the trial court abused its discretion in the method that it employed

in determining whether potential jurors might afford police officers greater credibility than other

witnesses in the trial. Defendant suggests that the trial court abused its discretion after it

                                                   11
Nos. 1-08-0862, 1-08-1025 cons.

discovered that certain potential jurors did not understand or did not hear the court’s question

regarding the credibility they would afford police officer testimony and nevertheless failed to

individually reexamine those jurors who were ultimately empaneled.

       It is axiomatic that the manner and scope of voir dire rest within the sound discretion of

the trial court. People v. Dixon, 382 Ill. App. 3d 233, 243 (2008). In conducting the voir dire,

the trial court is accorded broad discretion in determining which questions will be asked and

which procedures will be followed. People v. Morgan, 152 Ill. App. 3d 97, 101 (1987). The trial

court should always exercise its discretion in a manner that is consistent with the goals of voir

dire – to assure the selection of an impartial jury, free from bias or prejudice, and grant counsel

an intelligent basis on which to exercise peremptory challenges. Dixon, 382 Ill. App. 3d at 243.

Upon review, the standard for evaluating a court's exercise of discretion during the voir dire is

whether the questions and procedures created reasonable assurance that any prejudice or bias

would be discovered. Morgan, 152 Ill. App. 3d at 101.

       Here, we find no abuse of discretion by the trial court. The record indicates that two

prospective jurors responded to the trial court's group questions regarding the credibility of police

officers. See Morgan, 152 Ill. App. 3d at 101 (record indicated that individual prospective jurors

responded to the court’s group questions and that their responses were given careful

consideration by the court). When a potential juror did not hear the question asked, the trial court

repeated the question a second time. Upon defendant’s objection, the trial judge explained that

he was satisfied since he “raised the question, and [he was] convinced that everyone in the

courtroom, a courtroom full of people, heard it.”

                                                 12
Nos. 1-08-0862, 1-08-1025 cons.

       Thereafter, the trial court called three separate venire panels of potential jurors. The trial

court did not ask the first venire as a whole the questions regarding police officer credibility, but

did ask the question to the second and third venire groups. Defendant contends that during this

first venire group, five jurors were improperly empaneled without being asked the questions

regarding police officer credibility. We disagree. The record indicates that the trial court asked

or permitted the parties to ask appropriate follow-up questions to potential jurors from the first

venire group. In fact, the State asked follow-up questions to three potential jurors about whether

they would be able to judge police testimony the same as any other testimony. When a fourth

potential juror indicated that her niece was a police officer, the trial court asked her if that would

affect her previous response to the questions regarding police officer credibility. A fifth potential

juror mentioned that she needed to change her answer regarding police officer credibility because

her brother was beaten by police officers in the past. The trial court then asked her about the

incident with her brother. Also, the trial court asked each potential juror whether there was

anything else they would like to add that was not touched upon. Therefore, we conclude that the

trial court did not abuse its discretion and that the questions posed to the venire, in whole or in

part, were sufficient to have disclosed any prejudice or bias.

       Next, defendant claims the trial court erred in failing to provide separate first degree

murder verdict forms. The State charged defendant by indictment with first degree murder under

three different theories: intentional or knowing, strong probability, and felony murder. 720 ILCS

5/9–1(a)(1) through (3) (West 2004). The State also charged defendant with armed robbery and

burglary. 720 ILCS 5/18–2(a)(4), 5/19–1(a) (West 2004). The trial court submitted to the jury a


                                                  13
Nos. 1-08-0862, 1-08-1025 cons.

general verdict form for first degree murder, allowing the jury to find defendant guilty of first

degree murder without specifying the theory upon which the jury relied. Defendant did not

request separate verdict forms and did not object to the use of a general verdict form, but did

include the objection in posttrial motions. As such, defendant contends that this court should

review the issue as ineffective assistance of counsel or in the alternative as plain error.

       Defendant submits that this failure constitutes ineffective assistance of counsel. We

recently addressed this issue in People v. Braboy, 393 Ill. App. 3d 100, 108 (2009), in which

defendant was charged with multiple counts of murder, home invasion, and armed robbery.

Defendant was charged with first degree murder based upon three theories: intentional or

knowing, strong probability, and felony murder. Braboy, 393 Ill. App. 3d at 101-02. Defendant

contended that he was denied the effective assistance of counsel where trial counsel did not

request separate verdict forms for the various theories of first degree murder under which

defendant was charged. Braboy, 393 Ill. App. 3d at 104. In that case, the defendant relied

heavily on our supreme court’s finding in People v. Smith, 233 Ill. 2d 1, 23 (2009) (where

“specific findings by the jury with regard to the offenses charged could result in different

sentencing consequences, favorable to the defendant, specific verdict forms must be provided

upon request and the failure to provide them is an abuse of discretion”). We, however, found

Smith inapposite, noting that because counsel did not request separate verdict forms, the trial

court was not asked to rule on whether separate verdict forms should be provided to the jury.

Braboy, 393 Ill. App. 3d at 108. In Braboy, we explained that “the Smith case as it stands today

is limited to situations in which the trial court actually denied a request for separate verdict


                                                  14
Nos. 1-08-0862, 1-08-1025 cons.

forms.” Braboy, 393 Ill. App. 3d at 108. Similarly, in the case at bar, we decline to extend

Smith to situations where trial counsel did not request separate verdict forms. As such, we

conclude that trial counsel did not provide ineffective assistance where he did not request

separate verdict forms.

        Next, defendant contends that it was plain error for the trial court to submit the general

verdict form. The present case is analogous to People v. Davis, 233 Ill. 2d 244 (2009). In Davis,

the defendant was charged with aggravated battery, armed robbery and first degree murder.

Davis, 233 Ill. 2d at 247. The first degree murder charge was brought under three different

theories: intentional murder, strong probability murder, and felony murder. Davis, 233 Ill. 2d at

247. A general verdict form was submitted to the jury and it returned a general verdict of guilty

of first degree murder. Davis, 233 Ill. 2d at 263. Defendant did not object to the general verdict

form. Davis, 233 Ill. 2d at 263. The Davis court explained, “It is well settled that when an

indictment alleges three forms for a single murder-intentional, knowing and felony murder-and a

general verdict is returned, the net effect is that the defendant is guilty as charged in each count

and there is a presumption that the jury found that the defendant committed the most serious of

the crimes alleged, which is intentional murder.” Davis, 233 Ill. 2d at 263.

        Nonetheless, the Davis court conducted a plain error analysis due to defendant’s lack of

an objection to the general verdict form at trial. Davis, 233 Ill. 2d at 274. As previously

indicated, this court will review unpreserved error when a clear and obvious error occurs and: (1)

the evidence is closely balanced; or (2) that error is so serious that it affected the fairness of the

defendant's trial and challenged the integrity of the judicial process. Bannister, 232 Ill. 2d at 65.

                                                   15
Nos. 1-08-0862, 1-08-1025 cons.

Moreover, “the defendant has the burden to persuade the court that the error was prejudicial, that

is, defendant must show that the evidence was so closely balanced that the error alone threatened

to tip the scales of justice against him.” Davis, 233 Ill. 2d at 274. The Davis court held that “the

evidence of intentional and strong probability murder based on accountability was not closely

balanced, and therefore any error in instructing the jury on felony murder was harmless.” Davis,

233 Ill. 2d at 275.

        In this case, the record indicates that defendant told ASA Robertson that prior to exiting

the store, he stopped, turned back, looked at the victim, and shot him because he feared the

victim would identify him to the police. Defendant said he was frustrated that the robbery had

failed. Under these circumstances, similar to Davis, we find that the evidence of intentional

murder was not closely balanced. Therefore, it was not plain error to submit a general verdict

form for first degree murder, and the trial court properly entered judgments on the counts of

intentional murder and armed robbery.

        The final issues on appeal relate to sentencing by the trial court. Defendant argues that

his sentence was improperly entered where the trial court modified it without jurisdiction. At the

sentencing hearing, defendant was sentenced to 75 years’ imprisonment for first degree murder

(which included an enhancement for discharge of a firearm) to be served concurrently with 30

years’ imprisonment for armed robbery. After defendant filed his notice of appeal, the State

moved to correct the mittimus since both parties agreed that the sentence for armed robbery must

run consecutively to the sentence for first degree murder. The trial court then specified a 69-year

sentence for first degree murder (44 years and a 25-year enhancement) to run consecutively to a


                                                 16
Nos. 1-08-0862, 1-08-1025 cons.

6-year term for armed robbery.

       In this case, defendant was subject to mandatory consecutive sentences. 730 ILCS

5/5–8–4(i) (West 2004). Where sentences are mandatorily consecutive and the defendant is

sentenced to concurrent sentences, the sentences are void. People v. Harris, 203 Ill. 2d 111, 121

(2003). The trial court’s attempt to correct its mistake was improper because it had already been

divested of its jurisdiction. People v. Foster, 309 Ill. App. 3d 1, 16-17 (1999) (when the notice of

appeal is filed, the appellate court’s jurisdiction attaches instanter, and the cause is beyond the

jurisdiction of the trial court). Although the parties agree that defendant’s initial sentence is void

and that the second sentence was improper because the trial court was divested of its jurisdiction,

the State urges this court to correct defendant’s initial sentence by imposing the consecutive

sentences later set forth by the trial court: 69 years imprisonment for first degree murder to be

served consecutively with 6 years for armed robbery.

       The State directs us to People v. Arna, 168 Ill. 2d 107, 113 (1995), where our supreme

court held that because the trial court order imposing concurrent terms was void, the appellate

court had the authority to correct it at any time. However, our supreme court upheld the appellate

court’s finding that the concurrent sentences should be vacated and the cause remanded to the

trial court for determination of the appropriate sentences to be imposed consecutively. Arna, 168

Ill. 2d at 112, 115. Similarly, in People v. Harris, 203 Ill. 2d 111, 121 (2003), our supreme court

held that the trial court's imposition of concurrent sentences violated section 5/5–8–4 of the

Unified Code of Corrections (730 ILCS 5/5–8–4 (West 1998)) and affirmed the decision of the

appellate court vacating the sentence and remanding for the imposition of consecutive sentences.


                                                  17
Nos. 1-08-0862, 1-08-1025 cons.

Therefore, because the trial court’s initial sentence is void, we vacate the sentence and remand

for the imposition of consecutive sentences.

       Because we have vacated the sentence, we need not address defendant’s remaining

arguments concerning whether the trial court abused its discretion and imposed an excessive

sentence.

                                         CONCLUSION

       For the foregoing reasons, we affirm defendant’s convictions, vacate the concurrent

sentences, and remand to the trial court for the imposition of consecutive sentences.

       Affirmed in part, vacated in part, and remanded for resentencing.

       TOOMIN, P.J., and FITZGERALD SMITH, J., concur.




                                                18
