No. 3--03--0102

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Jason Hummel pled guilty to burglary (720 ILCS 5/19--1(a)(West 2000)) and was convicted of aggravated battery following abench trial (720 ILCS 5/12-4(a) (West 2000)). The courtsentenced the defendant to an extended term of ten year'simprisonment for aggravated battery and a consecutive six-yearterm for burglary. On appeal, the defendant maintains that,because the two offenses were committed as part of a singlecourse of conduct, the trial court erred in imposing an extendedsentence for aggravated battery and a consecutive sentence forburglary. We affirm.

On December 2, 2001, the defendant and two femaleaccomplices spent the day stealing items from several grocery anddrug stores in the Morris, Illinois area. At each location, thedefendant acted as the getaway driver after his accomplicesdeparted the stores without paying for items they had concealedin their clothing.

On the last attempt of the day, the accomplices entered thestore and placed several small items in their clothing and headedfor the exit. As in the previous capers, the defendant waitedinside his car, parked just outside the store, with the enginerunning. This time, the security system sounded as the twoaccomplices exited the store, and they quickly jumped into thecar. Two employees, alerted by the security alarm, chased thetwo felons out the door. One of the employees positioned herselfin front of the defendant's car before he could get away. Thedefendant shouted at the employee to get out of his way. Theemployee refused and insisted that the defendant stop the car. Instead, the defendant accelerated slowly toward the employee. The employee stood her ground and was either struck by the car orrolled onto the hood. Once on the hood, the employee hung ontothe hood of the car with each hand. The defendant then swervedthe car back and forth in an attempt to dislodge the employee. Eventually. the defendant succeeded in dislodging the employeefrom the hood of the car, and she slid off and struck her head onthe pavement. The defendant then sped away but was stopped onlya few blocks away by police who had been alerted by a call fromthe store.

Following closing arguments, the defendant was found guiltyof aggravated battery of the store employee. At the sentencinghearing, the trial court found that the two offenses did notoccur as part of a single course of conduct. Thus, the defendantwas eligible for an extended-term sentence on the lesser classoffense of aggravated battery, and his sentences for aggravatedbattery and burglary could be ordered to run consecutively. Thetrial court denied the defendant's motion to reconsider hissentence, and the defendant then filed a timely notice of appeal.

The defendant challenges both the extended-term sentence forthe aggravated battery conviction and the imposition of the twosentences consecutively.

Generally, an extended-term sentence may only be imposed on anoffense within the highest class designation of those crimes ofwhich the defendant is convicted. 730 ILCS 5/5-8-2(a) (West 200);People v. Jordan, 103 Ill. 2d 192 (1984). However, where lesserand greater class offenses are not committed as part of a singlecourse of conduct, an extended term may be imposed on a lesseroffense. People v. Bell, 196 Ill. 2d 343 (2001). Similarly, ifmultiple offenses were not committed as part of a single course ofconduct, the sentences for those offenses may be ordered to runconsecutively. 730 ILCS 5/5-8-4(b) (West 2000); Bell, 196 Ill. 2dat 352. Thus, in the instant matter, both sentencing issues aregoverned by the same determination: whether the two offenses ofwhich the defendant stands convicted (burglary and aggravatedbattery) were committed as "part of a single course of conduct." The trial court held that each crime was not part of a singlecourse of conduct and thus imposed the sentences from which thedefendant now appeals.

The determination of whether a defendant's actions constitutea single course of conduct is a question of fact for the trialcourt to determine and a reviewing court will defer to the trialcourt's conclusion unless that conclusion is against the manifestweight of the evidence. People v. Sergeant, 326 Ill. App. 3d 974(2001). However, consecutive sentences are to be imposedsparingly, and a reviewing court will vacate such sentences if therecord does not support their imposition. People v. Arrington, 297Ill. App. 3d 1, 5 (1998).

In order to determine whether the defendant's crimes were partof a single course of conduct, a court must determine whether theacts constituting each crime were "independently motivated" orwhether each was "part of course of conduct guided by an'overarching criminal objective.'" Arrington, 297 Ill. App. 3d at5, quoting People v. Kagan, 283 Ill App. 3d 212, 220 (1996); seealso, People v. Fritz, 225 Ill. App. 3d 624, 629 (1992).

The defendant maintains that Arrington controls the instantmatter. In Arrington, the defendant entered a grocery store andattempted to rob a store clerk at gunpoint. When the clerk foiledthe defendant's robbery attempt, the defendant hurried for theexit. A store manager attempted to prevent the defendant's escape,but the defendant struck the manager with the gun as he wasattempting to leave the store. Arrington, 297 Ill. App. 3d at 2. The defendant was convicted of attempted robbery and aggravatedbattery. At sentencing, the court concluded that the two offenseswere not committed as part of a single course of conduct and thusordered the defendant's sentences to run consecutively. Arrington,297 Ill. App. 3d at 3.

On appeal, the appellate court reversed, finding that theattempted robbery and the aggravated battery were indeed committedas part of a single course of conduct. The court noted:

"We believe that inherent in any plan to rob a store isalso an intention for the robber to escape from thepremises with the purloined proceeds. The evidence showsthat defendant battered the manager only after he blockeddefendant's escape route. Defendant's motivation forstriking the manager was not a newly conceived intentionto inflict harm, but an attempt to complete his originalplan, namely, the robbery of and escape from the store." Arrington, 297 Ill. App. 3d at 5.

Here, there are some similarities to Arrington. The evidenceshows that the defendant herein, just like the defendant inArrington, battered the employee only after she blocked thedefendant's escape route. However, we cannot agree with thecourt's conclusion in Arrington that any acts committed while adefendant is attempting to escape from the scene of a robbery isnecessarily part of the same overarching criminal objective. Rather, we find that one must look to the circumstances of theoccurrence to determine whether the objective changed when the useof force became necessary in order to effectuate the escape. See,People v. Harris, 39 Ill. App. 3d 1043, 1052-53 (1976) (substantialchange in criminal objective occurs where shoplifting suspectemploys violence to avoid apprehension).

In Harris, the defendant committed a battery of a securityofficer who confronted Harris leaving a department store withoutpaying for products concealed in a shopping bag. As in the instantmatter, the confrontation between suspect and employee occurredjust outside the entrance to the store. Harris, 39 Ill. App. 3d at1045. When the security guard confronted Harris, he stuck theguard in the face and fled on foot. Harris was later apprehendeda few blocks from the store. He was convicted of theft andbattery, with sentences to run concurrently. Harris, 39 Ill. App.3d at 1045.

Although the issue in Harris was not whether the defendant'sbattery and theft were committed as part of a single course ofconduct for purposes of determining the applicability ofconsecutive sentences, the court nonetheless addressed thequestion, albeit in dicta.

"In our case the defendant's original objective was toshoplift some merchandise from the store. Shoplifting isa crime of stealth and not of violence where theperpetrator intends to take merchandise without theowner's knowledge rather than to take it by force whichwould lead to his identification. * * * We are of theopinion that the battery inflicted upon [the securityguard] resulted from a 'substantial change in the natureof the criminal objective' and was a departure from a'single course of conduct' * * * " Harris, 39 Ill. App.3d at 1052 (citing People v. Williams, 60 Ill. 2d 1, 15(1975) (robbers who killed armed victim to avoidapprehension departed from a single course of conduct andwere thus properly given consecutive sentences for armedrobbery and murder).

Here, we are convinced that there was a substantial change inthe criminal objective of the defendant at the point the employeeblocked the defendant's car. We find that the battery was adeparture from the single course of conduct surrounding theburglary. The manifest weight of the evidence indicates that thedefendant's original objective was to stealthily obtain items ofmerchandise from the store, without the need for confrontation orviolence. Once the defendant's cohorts were discovered and thestore employees gave chase, the objective changed from merelyavoiding detection to avoiding apprehension. See, Williams, 60 Ill.2d at 15. More significantly, once the store employee placedherself in front of the defendant's car and refused the defendant'scommand to let him pass, the defendant's actions were directedspecifically at that individual rather than at the store he hadintended to rob. At that point, if not before, the defendant'scourse of conduct in committing the battery was unrelated to theobjective in committing a burglary against the store.

For the foregoing reasons, the judgment of the Grundy Countycircuit court is affirmed.

Affirmed.

SCHMIDT and LYTTON, JJ., concur.