People v. Peacock

• Decision Date: 19 July 2005
• Docket Number: No. 4-03-0605.,4-03-0605.
• Citation: 833 N.E.2d 396
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian S. PEACOCK, Defendant-Appellant.
• Court: Illinois Supreme Court

833 N.E.2d 396

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian S. PEACOCK, Defendant-Appellant.

No. 4-03-0605.

Appellate Court of Illinois, Fourth District.

July 19, 2005.

COPYRIGHT MATERIAL OMITTED

Daniel D. Yuhas (Court-appointed), Colleen Morgan, Assistant Defender, Office of the State Appellate Defender, Springfield, for Brian S. Peacock.

Julia Rietz, State's Attorney, Norbert J. Goetten, Director, Robert Biderman, Deputy Director, James C. Majors, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice APPLETON delivered the opinion of the court:

A jury found defendant, Brian S. Peacock, guilty of home invasion (720 ILCS 5/12-11(a)(2) (West 2002)), aggravated battery (720 ILCS 5/12-4(b)(1) (West 2002)), and domestic battery with a previous domestic-battery conviction (720 ILCS 5/12-3.2(a)(1) (West 2002)). The trial court sentenced him to concurrent terms of imprisonment. The sentences on the latter two convictions were extended terms.

Defendant appeals on five grounds. First, he argues his convictions violated the one-act, one-crime rule. Second, the extended-term sentences were unauthorized by statute and, therefore, void. Third, the domestic-battery statute (720 ILCS 5/12-3.2(a)(1) (West 2002)) is unconstitutionally vague as applied to him. Fourth, the trial court failed to inquire into his pro se posttrial allegations of ineffective assistance of counsel. Fifth, he was entitled to an additional 21 days of presentence credit.

We find no violation of the one-act, one-crime rule. We find no vagueness in the domestic-battery statute. We agree, however, with defendant's remaining contentions. Therefore, we vacate the extended-term portions of the sentences for aggravated battery and domestic battery, we grant 21 additional days of presentence credit, and we remand this case with directions to issue an amended judgment at sentence and to perform the preliminary investigation required by People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), and its progeny.

I. BACKGROUND

The evidence at trial showed that defendant and Kelly Slade had been dating off and on for about eight years. In the summer of 2002, they became engaged, but Slade broke off the engagement some months before the incident in this case. Defendant still overnighted at her apartment now and then and used it as his mailing address, but he did not live there.

Late at night on October 19, 2002, Slade was asleep in her apartment when she was awakened by a telephone call. It was defendant, and he wanted to come in. She rose from the couch and looked through the peephole of her door: defendant was standing in the hall. She refused to let him in and told him to go away. He called back immediately, and while she was on the line with him, he removed the screen of a living-room window and climbed into her apartment.

Defendant snatched the telephone out of Slade's hand, threw it across the room, and yanked the telephone cord out of the wall. Then he proceeded to administer a beating that, according to Slade, lasted about two hours. He punched and slapped her in the face. He dragged her by the hair and kicked her in the arms and legs. He choked her with his hands and with a towel, telling her he loved her and wanted to marry her and would not let her break up with him. At some point, he picked up her son's aluminum baseball bat (her son was staying overnight at a friend's house) and hit her in the arms, legs, and stomach with it — not "full blows" but hard enough to "get [her] attention" and inflict pain — all the while telling her the "[s]ame stuff": "[']I love you. You can't do this to me. Don't leave me.[']" Eventually, Slade persuaded him to desist from beating her by saying she needed to go the emergency room. He reluctantly agreed to let her go on condition that she not report him to the police. The jury found defendant guilty of all three counts of the information.

On May 28, 2003, after conviction but before sentencing, defendant filed the following letter:

"Judge Ford[,]

My name is Brian Scott Peacock. [M]y trial was in your courtroom on [May 21, 2003,] and I was found guilty of [the] charges[.] [T]he reason I[am] writing you this letter is because my attorney[,] John Taylor[,] did not represent [me] to the full[e]st of his ability[.] [T]he reason I say that is because he did not send out any [subpoenas] for all my [witnesses] and he also did not cross[-]examine the [witnesses] to prove [whether] their test[i]mony was cred[i]ble or not. [H]e would not ask any of the questions I wanted him to ask or show how the victim told the police and investigators two different stories in the motion of discovery. [He failed to elicit] the fact that I still lived in the house until the day I turned myself [in to] the Champaign County jail[.] [F]or that reason[,] I would like for you to grant me a new trial so I can have all of these things brought forth."

On May 29, 2003, defense counsel filed a posttrial motion raising other issues.

In a hearing on July 7, 2003, the trial court denied defense counsel's posttrial motion and, without responding to defendant's letter, proceeded to sentencing. After considering the presentence report and the arguments of counsel regarding an appropriate sentence, the court told defendant: "[Y]ou have the right to make a statement to the [c]ourt, state anything you wish to state, anything * * * you think that the [c]ourt should know before you are sentenced." Defendant made a statement in allocution, in which he did not mention his letter to the court. The court asked defendant if he had anything else to say. Defendant said no. For home invasion, the trial court sentenced him to 22 years' imprisonment. On the other two convictions, the court imposed maximum extended terms of imprisonment: 10 years for aggravated battery and 6 years for domestic battery. The court allowed 196 days of presentence credit.

This appeal followed.

II. ANALYSIS

A. The One-Act, One-Crime Rule

1. Were the Convictions Based on the Same Physical Act?

Defendant argues the one-act, one-crime rule in People v. King, 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838, 844-45 (1977), requires us to vacate the convictions of aggravated battery and domestic battery. We consider this issue de novo. People v. Dryden, 349 Ill.App.3d 115, 124, 285 Ill.Dec. 61, 811 N.E.2d 302, 310 (2004).

The one-act, one-crime rule requires us to ask two questions. The first question is "whether [the] defendant's conduct consisted of separate acts or a single physical act." People v. Rodriguez, 169 Ill.2d 183, 186, 214 Ill.Dec. 451, 661 N.E.2d 305, 306 (1996). One cannot carve multiple convictions out of "precisely the same physical act." Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d at 306. If we find multiple acts, we ask a second question: "whether any of the offenses are lesser[-]included offenses." Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d at 306. One cannot convict a defendant of both the greater offense and the lesser-included offense. Rodriguez, 169 Ill.2d at 186, 214 Ill.Dec. 451, 661 N.E.2d at 306-07.

In People v. Tate, 106 Ill.App.3d 774, 779, 62 Ill.Dec. 522, 436 N.E.2d 272, 276 (1982), we disagreed that the convictions of home invasion and aggravated battery in that case had been "`carved' from the same act." The knifing of the victim in Tate was the entire basis of the aggravated battery but only part of the basis of the home invasion, which included an additional act: the defendant's unauthorized entry into the dwelling place. We reasoned that "the entry by the assailant in[to] the * * * home was a separate act which was an important and required part only of the home invasion offense." Tate, 106 Ill.App.3d at 778, 62 Ill.Dec. 522, 436 N.E.2d at 275.

Arguably, Tate is distinguishable because, as we remarked in that case, the defendant cited no authority for the proposition that two convictions had been carved out of the same physical act if the act served as the complete basis of one conviction but only part of the basis of the other conviction. Tate, 106 Ill.App.3d at 778-79, 62 Ill.Dec. 522, 436 N.E.2d at 276. In the present case, defendant cites two cases that appear to stand for precisely that proposition. In People v. Monigan, 204 Ill.App.3d 686, 690, 149 Ill.Dec. 662, 561 N.E.2d 1358, 1360-61 (1990), and People v. Bell, 327 Ill.App.3d 238, 243, 261 Ill.Dec. 936, 764 N.E.2d 551, 555 (2002), the Third District held that home invasion and aggravated battery were based on the same "act" and, therefore, King required the vacation of the conviction for aggravated battery. The Third District reasoned that "a conviction for aggravated battery could not stand where it was based upon the same act as that involved in the injury element of home invasion." (Emphasis added.) Monigan, 204 Ill.App.3d at 690, 149 Ill.Dec. 662, 561 N.E.2d at 1360-61.

We have difficulty reconciling Monigan and Bell with People v. Lobdell, 121 Ill.App.3d 248, 252, 76 Ill.Dec. 623, 459 N.E.2d 260, 263 (1983), in which the Third District reasoned as follows: "Since entry into the victim's home was only part of the home invasion offense and the sole act of the residential burglary offense, the two offenses were not carved from the same physical act." See also People v. Marston, 353 Ill.App.3d 513, 519, 289 Ill.Dec. 58, 818 N.E.2d 1261, 1266 (2004), appeal denied, No. 99750, 214 Ill.2d 544, 294 Ill.Dec. 6, 830 N.E.2d 6 ("convictions of aggravated battery and home invasion do not violate one-act, one-crime principles[,] despite the infliction of only one injury[,] because [the] defendant's entry into the home was a separate act on which the home invasion charge was based"); People v. Damico, 309 Ill.App.3d 203, 217, 242 Ill.Dec. 705, 722 N.E.2d 194, 206 (1999) (same).

We also have difficulty reconciling Monigan and Bell with the supreme court's decision in People v. McLaurin, ...