938 N.E.2d 498 (Ill. 2010), 107878, People v. Miller

Docket Nº:107878.
Citation:938 N.E.2d 498, 238 Ill.2d 161, 345 Ill.Dec. 59
Opinion Judge:BURKE, Justice
Party Name:The PEOPLE of the State of Illinois, Appellant, v. Johnny L. MILLER, Appellee.
Attorney:Lisa Madigan, Atty. Gen., of Sprindfield, John A. Barsanti, State's Atty., of St. Charles (Michael A. Scodro, Solicitor General, Michael M. Glick, Jonathan J. Silberman, Asst. Attorneys General, of Chicago, Patrick Delfino, Lawrence M. Bauer, Sally A. Swiss, Office of State's Attorneys Appellate ...
Judge Panel:Chief Justice FITZGERALD and Justices FREEMAN, THOMAS, KILBRIDE, GARMAN, and KARMEIER concurred in the judgment and opinion.
Case Date:September 23, 2010
Court:Supreme Court of Illinois
 
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Page 498

938 N.E.2d 498 (Ill. 2010)

238 Ill.2d 161, 345 Ill.Dec. 59

The PEOPLE of the State of Illinois, Appellant,

v.

Johnny L. MILLER, Appellee.

No. 107878.

Supreme Court of Illinois.

September 23, 2010

Page 499

Lisa Madigan, Atty. Gen., of Sprindfield, John A. Barsanti, State's Atty., of St. Charles (Michael A. Scodro, Solicitor General, Michael M. Glick, Jonathan J. Silberman, Asst. Attorneys General, of Chicago, Patrick Delfino, Lawrence M. Bauer, Sally A. Swiss, Office of State's Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender,

Page 500

Deborah K. Pugh, Asst. Appellate Defender, of Office of State Appellate Defender, of Chicago, for appellee.

[345 Ill.Dec. 61] OPINION

BURKE, Justice

In People v. King, 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977), this court held that when the State charges a defendant with multiple offenses that arise " from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses" multiple convictions and sentences can be entered. The question we must decide in this case is whether, in determining when one offense is a lesser-included offense of another under King, a court should employ the " charging instrument" approach or the " abstract elements" approach. For the reasons that follow, we hold that the abstract elements approach is the proper analysis to employ.

Background

On December 16, 2004, the defendant, Johnny L. Miller, entered a Walgreens drugstore in Elgin and was observed placing items in his jacket. Predraqe Mrkalj, a security guard, stopped defendant as he was leaving the store. Defendant agreed to accompany Mrkalj and Jim McElmury, the store manager, to an office within the store. There, defendant removed more than 20 items from his jacket. Defendant then pulled a knife out, pointed it at Mrkalj and McElmury, and fled. A woman in a car outside the store picked up defendant and drove off. However, McElmury was able to obtain the license plate number of the car and defendant was subsequently arrested.

Thereafter, defendant was charged with burglary, retail theft, and aggravated assault. The burglary indictment alleged that " defendant, without authority, knowingly entered a building of Walgreen's * * * with the intent to commit therein a theft." The retail theft indictment alleged that " defendant knowingly took possession of certain merchandise for sale in a retail mercantile establishment, Walgreen's, * * * being certain items, having a total value in excess of $150.00, with the intention of depriving the merchant, Walgreen's, permanently of the possession of such merchandise, without paying the full retail value of such merchandise." The aggravated assault charge stemmed from defendant pointing the knife at Mrkalj and McElmury.

Following a jury trial in the circuit court of Kane County, at which defendant represented himself, the jury returned guilty verdicts on each count. Defendant filed a motion for a new trial, but did not include a claim that retail theft was a lesser-included offense of burglary. The motion was denied. Thereafter, defendant was sentenced to one year of imprisonment on the aggravated assault conviction, seven years on the burglary, and six years on the retail theft, all to run concurrently. Defendant's motion to reduce sentence as excessive was denied.

On direct appeal, defendant argued that his retail theft conviction must be vacated because it is a lesser-included offense of burglary and, pursuant to King, convictions cannot be imposed for both a greater offense and a lesser-included offense. The appellate court agreed and reversed defendant's conviction. No. 2-06-1211 (unpublished order under Supreme Court Rule 23).

The appellate court held that, although defendant did not raise the lesser-included offense claim in his posttrial motion, it would review the alleged error under the plain-error doctrine. Applying the charging instrument approach for deciding when [345 Ill.Dec. 62]

Page 501

an offense is lesser-included, the appellate court concluded that, because the indictment for burglary alleged that defendant entered the store " with the intent to commit a theft therein," it alleged the " main outline" of retail theft and, therefore, that retail theft was a lesser-included offense of burglary. Accordingly, the court held that defendant's conviction for retail theft had to be vacated under King. In reaching this holding, the appellate court declined to follow People v. Poe, 385 Ill.App.3d 763, 324 Ill.Dec. 667, 896 N.E.2d 453 (2008), wherein the court rejected the charging instrument approach and instead applied the abstract elements approach to determine that theft was not a lesser-included offense of burglary under King.

We granted the State's petition for leave to appeal. 177 Ill.2d R. 315.

Analysis

In King, this court set forth what has come to be known as the one-act, one-crime doctrine:

" Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘ Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." King, 66 Ill.2d at 566, 6 Ill.Dec. 891, 363 N.E.2d 838.

Decisions following King have explained that the one-act, one-crime doctrine involves a two-step analysis. People v. Rodriguez, 169 Ill.2d 183, 186, 214 Ill.Dec. 451, 661 N.E.2d 305 (1996). First, the court must determine whether the defendant's conduct involved multiple acts or a single act. Multiple convictions are improper if they are based on precisely the same physical act. Second, if the conduct involved multiple acts, the court must determine whether any of the offenses are lesser-included offenses. If an offense is a lesser-included offense, multiple convictions are improper. Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d 305. The present case is concerned solely with the second step of the King analysis and whether retail theft is a lesser-included offense of burglary.

Section 2-9 of the Criminal Code of 1961 defines a lesser-included offense as an offense established by proof of lesser facts or mental state, or both, than the charged offense. 720 ILCS 5/2-9 (West 2004). This court has noted that this definition provides little guidance because it does not " specify what source to examine in deciding whether a particular offense is a lesser included offense of another." People v. Novak, 163 Ill.2d 93, 106, 205 Ill.Dec. 471, 643 N.E.2d 762 (1994); see also People v. Kolton, 219 Ill.2d 353, 360, 302 Ill.Dec. 386, 848 N.E.2d 950 (2006); People v. Bryant, 113 Ill.2d 497, 505, 101 Ill.Dec. 825, 499 N.E.2d 413 (1986); People v. Mays, 91 Ill.2d 251, 255, 62 Ill.Dec. 945, 437 N.E.2d 633 (1982). In the absence of statutory direction, we have identified three possible methods for determining whether a certain offense is a lesser-included offense of another: (1) the " abstract elements" approach; (2) the " charging instrument" approach; and (3) the [345 Ill.Dec. 63]

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" factual" or " evidence" adduced at trial approach. Novak, 163 Ill.2d at 106, 205 Ill.Dec. 471, 643 N.E.2d 762.

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