No. 3--00--0423

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

A jury found the defendant, Shawn Earl Bell, guilty of homeinvasion (720 ILCS 5/12--11(a)(2) (West 1998)), aggravated battery(720 ILCS 5/12--4(b)(1) (West 1998)), and unlawful possession of afirearm by a felon (720 ILCS 5/24--1.1(a) (West 1998)). He wassentenced to 25 years' imprisonment for the home invasionconviction and 5 years' imprisonment for the firearm possessionconviction to be served concurrently. He was not sentenced foraggravated battery. We vacate his aggravated battery conviction,but otherwise affirm.

BACKGROUND

The testimony at trial indicated that at approximately 3:30a.m. on March 16, 1999, the defendant kicked in the front door ofan apartment occupied by Chemacy Irby, her two children and herboyfriend, La Earl McBride. Naked and unarmed, McBride left thebedroom to investigate.

Police officers responded to a call and found McBridecrouching in a corner, naked, with blood covering his face. Thedefendant was standing over McBride with a revolver in his righthand. An officer ordered the defendant to drop the gun. He did,and the officers took him into custody.

The defendant was charged by an indictment in three counts. Count I charged the defendant with home invasion. Counts II andIII charged him with aggravated battery and unlawful possession ofa firearm by a felon respectively.

The jury found the defendant guilty of all three counts, buthe was sentenced only on counts I and III.

Additional facts will be discussed as they pertain toindividual issues.

ANALYSIS

I. Defendant's Name

The defendant argues that the State failed to prove oneelement of the crime of unlawful possession of a firearm by afelon. He contends that the State did not prove beyond areasonable doubt that he was the same "Shawn Bell" named in acertified copy of a 1992 conviction for attempted armed robbery. He was named in his indictment as "Shawn Earl Bell AKA: Bell, ShawnE" and the State presented no evidence beyond the certified copy ofthe conviction linking the defendant to the 1992 conviction.

At trial, but out of the presence of the jury, the prosecutorindicated that he had spoken with defense counsel about raising theissue of the defendant's prior conviction. The judge asked ifthere would be any objection to the certified copy of thedefendant's prior conviction. Defense counsel replied, "No. I'vegone over it. I know [the prosecutor] can prove it up." The judgesuggested that the prosecutor mark the certified copy as an exhibitand offer it in evidence. He proposed that when the State offeredthe certified copy in evidence without objection, he would admitit. Defense counsel said, "It's going to avoid calling NancyMermelstein up, going through all that, Judge." The judge offeredto inform the jury that in a Peoria County case, the defendant wasconvicted of two counts of attempted armed robbery on December 7,1992. The judge said he would tell the jurors that they mayconsider the certified copy as evidence and give it whatever weightthey thought it deserved. The judge asked if handling the priorconviction in that way was acceptable. Defense counsel agreed,saying, "I can't think of a better way, Judge."

At the conclusion of the State's case in chief, the prosecutoroffered the certified copy of the defendant's prior conviction inevidence. When the judge asked if there was any objection, defensecounsel said there was not. The judge admitted the certified copyas "People's Exhibit No. 9" and advised the jury as stated above. "People's Exhibit #9" indicates that an attorney named"Mermelstein" represented the State when "Shawn Bell" pled guiltyto two counts of attempted armed robbery on December 7, 1992.

When an appellate court reviews a challenge to the sufficiencyof the evidence, the question is whether, viewing the evidence inthe light most favorable to the prosecution, any reasonable jurycould have found the defendant guilty beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985). It isunlawful for a person knowingly to possess any firearm if theperson has been convicted of a felony under Illinois law. 720 ILCS5/24--1.1(a) (West 1998).

The defendant relies upon this court's recent decision inPeople v. Brown, No. 3--00--0669 (November 1, 2001). In Brown, thedefendant, John E. Brown, argued that the State failed to provethat he was the same John Brown named in a certified copy ofconviction. At trial, the defendant contended that he was not, infact, the same John Brown. The State presented no evidenceconnecting the John Brown in the certified copy of the convictionwith the defendant. We found that under those facts, the Statemust submit additional proof linking the defendant to the priorconviction.

Brown is readily distinguishable from this case. Here, thedefendant did not object to the State's introduction of thecertified copy of conviction. On the contrary, he accepted thejudge's suggested manner of handling this evidence and never arguedthat he was not the person named in the certified copy ofconviction. Brown is inapposite to this case.

A defendant may not ask the trial court to proceed in acertain manner and then contend in a court of review that thejudgment he obtained was in error. People v. Segoviano, 189 Ill.2d 228, 725 N.E.2d 1275 (2000). Here, the defendant asked thetrial court to proceed with the introduction of the State'scertified copy of conviction in a certain manner, conceding thatthe State could "prove it up." He opted to dispense with thetestimony of Attorney Mermelstein, the State's witness whopresumably would have linked him to the prior conviction. Onappeal, the defendant may not now contend that the trial court wasin error by doing what he asked at trial.

Taking the evidence in the light most favorable to theprosecution, the jury reasonably could have found beyond areasonable doubt that the defendant was a felon. The trial courtdid not err by convicting him of unlawful possession of a firearmby a felon.

II. Constitutionality of Truth-in-Sentencing

The trial judge stated that he was imposing truth-in-sentencing to the defendant's 25-year prison sentence for homeinvasion because the victim suffered great bodily harm. On appeal,the defendant argues that the truth-in-sentencing provision ofsection 3--6--3(a)(2)(iii) violates his due process and jury trialrights under the holding of Apprendi v. New Jersey, 530 US 466, 147Led.2d 435, 120 Sct. 2348 (2000).

The constitutionality of a statute is a question of law, whichwe review de novo. People v. Rhoades, 323 Ill. App. 3d 644, 753N.E.2d 537 (2001). Defendants receive one day of good conductcredit for each day of his or her sentence of imprisonment for alloffenses not enumerated in section 3-6-3(a)(2). 730 ILCS5/3-6-3(a)(2.1)(West 2000). Home invasion is not a listed offensein section 3-6-3(a)(2). However, when a court has found that thedefendant's conduct resulted in great bodily harm to a victim, adefendant convicted of home invasion shall receive no more than 4.5days of good conduct credit for each month of his prison sentence. 730 ILCS 5/3--6--3(a)(2)(iii) (West 2000).

Except for a prior conviction, any fact that increases thepenalty for a crime beyond the statutory maximum must be submittedto the jury and proved beyond a reasonable doubt. Apprendi, 530U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348. Recently, theIllinois Appellate Court, Fourth District, ruled that thetruth-in-sentencing provision of section 3--6--3(a)(2)(iii) doesnot violate the rule of Apprendi because the statute does notchange the prescribed maximum penalty imposed for offenses such ashome invasion. People v. Garry, 323 Ill. App. 3d 292, 752 N.E.2d1244 (2001). We agree with the reasoning in Garry. Since themaximum penalty under section 3-6-3(a)(2) is not increased, thetruth-in-sentencing provision of section 3--6--3(a)(2)(iii) is notunconstitutional under Apprendi.III. One-act, One-crime

At the sentencing hearing, the judge said, "Because theaggravated battery charge is also the basis for the injury ascontained in the home invasion charge, the Court does not feel it'sappropriate to impose a sentence for both offenses." The court'swritten sentencing order states, "No sentence imposed on Count II,"the aggravated battery count. The defendant contends that hisaggravated battery conviction should be vacated under the one-act,one-crime principles.

Multiple convictions are improper if they are based onprecisely the same physical act. People v. Pulgar, 323 Ill. App.3d 1001, 752 N.E.2d 585 (2001). Where a defendant is not sentencedfor a conviction because of one-act, one-crime principles, thatconviction should be vacated by the appellate court. People v.Horton, 314 Ill. App. 3d 1039, 733 N.E.2d 701 (2000).

The State cites People v. Kraus, 318 Ill. App. 3d 774, 743N.E.2d 198 (2000), for the proposition that the defendant'saggravated battery conviction need not be vacated. In Kraus, therecord indicated that the trial court merged two convictions anddid not impose sentence on one conviction that merged into anotherconviction. Since the defendant's aggravated battery convictionwas not merged with his home invasion conviction, Kraus does notapply to this case.

Although the judge did not use the term, "one-act, one-crime,"he did say that he would not impose a sentence for the defendant'saggravated battery conviction because it was based on the samephysical act as the home invasion conviction. This languageinvoked the one-act, one-crime rule regarding the two convictions. Therefore, we vacate the defendant's aggravated battery convictionin conformity with the holding in Horton.

CONCLUSION

We vacate the defendant's aggravated battery conviction, butotherwise affirm the judgment of the Peoria County circuit court.

Affirmed in part and vacated in part.

HOLDRIDGE and McDADE, JJ., concur.