People v. Carter

1

2024 IL App (2d) 230234

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON CARTER, Defendant-Appellant.

No. 2-23-0234

Court of Appeals of Illinois, Second District

November 22, 2024

Appeal from the Circuit Court of Kane County. No. 19-CF-1167 Honorable Alice C. Tracy, Judge, Presiding.

Attorneys for Appellant: James E. Chadd, Christopher McCoy and Sade V. Edwards, of State Appellate Defender's Office, of Elgin, for appellant.

Attorneys for Appellee: Jamie L. Mosser, State's Attorney, of St. Charles (Patrick Delfino, Edward R Psenicka, and David S. Friedland, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Birkett and Kennedy concurred in the judgment and opinion.

OPINION

HUTCHINSON, JUSTICE

¶ 1 Following a jury trial in the circuit court of Kane County, defendant, Jason Carter, was convicted of two counts of home invasion (720 ILCS 5/19-6(a)(6) (West 2018)) and a single count of criminal sexual assault (id. § 11-1.20(a)(2)). Defendant argues on appeal that (1) under the one-act, one-crime rule, the criminal sexual assault conviction and one of the home invasion convictions must be vacated; (2) the trial court erred in ordering him to serve 85% of his sentence; and, (3) because his criminal sexual assault conviction must be vacated, the trial court erred in ordering him to register as a sex offender. We vacate one of defendant's home invasion convictions and his criminal sexual assault conviction. We also vacate that portion of the sentencing order requiring him to serve 85% of his sentence. However, because defendant was convicted of home invasion predicated on a sex offense, we affirm the judgment requiring him to register as a sex offender.

¶ 2 I. BACKGROUND

¶ 3 As pertinent here, defendant was charged by indictment with two counts of home invasion (counts I and II) and one count of criminal sexual assault (count III). Count I alleged that defendant "knowingly and without authority entered the dwelling place of another, *** when he knew or had reason to know that another person was present *** and while within said dwelling, committed the offense of criminal sexual assault against S.M." Count II alleged that defendant "knowingly and without authority entered the dwelling place of another, *** and remained in said dwelling until he knew or had reason to know that one or more persons was present, and while inside said dwelling committed the offense of criminal sexual assault against S.M." Count III alleged that defendant placed his penis in S.M.'s mouth, knowing that she was unable to understand the nature of the act or give consent.

¶ 4 At trial, S.M. testified that, on the evening of June 15, 2019, she and her roommates went to some bars in St. Charles for a bachelorette party. S.M. drank alcohol during the outing. At some point, she met up with her boyfriend, Vance Conroyd, and they went to his home in St. Charles. S.M. was intoxicated at that point and fell asleep on a couch. She testified that she woke to find defendant's penis in her mouth. S.M. was acquainted with defendant, who was Conroyd's nextdoor neighbor. After S.M. woke up, defendant removed his penis from her mouth, zipped up his pants, and left. Conroyd testified that, on the date in question, he lived in a unit in a duplex. Defendant lived in the other unit.

¶ 5 Defendant testified that, at about 9 p.m. on June 15, 2019, he met with some friends to celebrate his birthday. They went to a couple of bars. After no more than about two hours, defendant went home. According to defendant, there was an "open door" policy at the duplex where he and Conroyd lived. Defendant explained: "there's a screen door and then a door, so if the door is open, you can just come in, if you saw somebody." It was common for defendant and Conroyd to enter each other's property without knocking or ringing the doorbell. When defendant arrived at the duplex after his birthday celebration, he entered Conroyd's unit to "see what they were up to." Once inside, he saw a person lying on the couch. The person was facing the back of the couch. He believed that the person was Maria Batka, with whom defendant was involved in a physical relationship. Defendant touched the person on the shoulder, and she started to fondle his crotch. He then exposed his penis, and she immediately turned toward him and put it in her mouth. They then "both looked at each other," and defendant realized the woman was not Batka.

¶ 6 After the jury returned guilty verdicts on all three counts of the indictment, the matter was continued for posttrial motions and sentencing. Defendant filed a motion for a new trial, in which he argued that the State failed to prove his guilt beyond a reasonable doubt and that the trial court erred in barring him from testifying about his alcohol consumption before the incident. The trial court denied defendant's motion and sentenced defendant to a seven-year prison term, noting that, upon release, he would have to register as a sex offender for life. The court indicated that defendant would receive day-for-day credit toward his sentence. In addition, the court stated that "[t]he criminal sexual assault and one home invasion count will merge into the first home invasion count." However, the written sentencing order indicated that defendant was to serve 85% of his sentence and that a separate conviction had been entered on the criminal sexual assault count and on each home invasion count. Defendant filed a timely notice of appeal.

¶ 7 II. ANALYSIS

¶ 8 Defendant raises three contentions on appeal, none of which, he admits, was brought in the trial court. We first consider whether defendant's criminal sexual assault conviction and one of his two home invasion convictions must be vacated. Although, during sentencing, the trial court indicated that counts II (home invasion) and III (criminal sexual assault) merged into count I (home invasion), the court ultimately entered separate judgments of conviction on all three counts.

¶ 9 Defendant acknowledges that he forfeited the issue by failing to raise it in his posttrial motion. See People v. Enoch, 122 Ill.2d 176, 185-86 (1988). However defendant asks us to review the issue under the plain-error rule, which allows appellate review of an unpreserved error when

"(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill.2d 551, 565 (2007).

"[O]ne-act, one-crime violations fall within the second prong of the plain error doctrine as an obvious error so serious that it challenges the integrity of the judicial process." People v. Coats, 2018 IL 121926, ¶ 10. The one-act, one-crime rule bars surplus convictions and sentences by prohibiting convictions of more than one offense carved from the same physical act. People v. King, 66 Ill.2d 551, 566 (1977). In cases involving multiple acts, convictions of more than one offense are permissible unless some offenses are, by definition, lesser included offenses. Id. As defendant observes, under these principles, a single unauthorized entry into a dwelling will support only one home invasion conviction, regardless of the number of victims involved. See, e.g., People v. Carr-McKnight, 2020 IL App (1st) 163245, ¶ 113. Here, there was only one unauthorized entry into Conroyd's dwelling, so one of defendant's home invasion convictions must be vacated.

¶ 10 The question remains: which home invasion conviction should be vacated? The following principles apply:

"When two convictions violate the one-act, one-crime doctrine, the sentence should be imposed on the more serious offense, and the less serious offense should be vacated. [Citation.] Where the punishments are the same for both offenses, *** the sentence should be imposed on the offense that 'has the more culpable mental state.' [Citation.]" Id. ¶ 114.

Here, the two home invasion counts were equally serious and were based on the same mental state. In such instances, a reviewing court may remand the matter to the trial court to determine which conviction should be vacated. People v. Millsap, 2012 IL App (4th) 110668, ¶ 20. In this case, however, because the trial court indicated during sentencing that count II merged into count I, we can vacate the conviction on count II.

¶ 11 We also agree with defendant that, because the home invasion charge was predicated on criminal sexual assault, the latter is a lesser included offense of the former. So, the criminal sexual assault conviction (count III) must also be vacated. See People v. Reveles-Cordova, 2020 IL 124797, ¶ 21. The State acknowledges that we may address the issue as plain error and that the trial court should have merged his convictions into a single home invasion conviction. We accept the State's concession.

¶ 12 We next consider whether the trial court erred in ordering defendant to serve 85% of his sentence for home invasion (count I). Subject to numerous exceptions, an offender serving a prison sentence is entitled to one day of sentence credit for each day served. 730 ILCS 5/3-6-3(a)(2.1) (West 2018). One exception provides that an offender serving a sentence for home invasion is eligible for no more than 4.5 days of sentence credit per month served if the trial court "has made and entered a finding *** that the conduct leading to conviction...