People v. Curry, 2018 IL App (1st) 152616 (February). Episode 467 (Duration 8:24)

The possession with intent to deliver should have been vacated when he was convicted of armed violence (lesser included offense counts as same act).

Gist

Following a bench trial, the defendant-appellant, Jarrod Curry, was convicted of armed violence (count I), possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin (count II), and possession of a controlled substance with intent to deliver less than 1 gram of cocaine within 100 feet of a park (count III).

Search Warrant Case

It was a search warrant and defendant fled when the cops broke in. Police saw him throw away a gun and some drugs as he ran away.

Issue

The defendant argues that this court must vacate his conviction and sentence for possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin.

He claims that this conviction arose out of the same physical act as his conviction for armed violence, which violates the one-act, one crime rule.

More Illinois sentencing issues and case law can be found here.

One Act – One Crime Principle

Under the one-act, one-crime rule, “a defendant may not be convicted of multiple offenses that are based upon precisely the same single physical act.”

First, the reviewing court determines whether the defendant’s conduct consisted of a single physical act or separate acts. If one physical act was undertaken, then multiple convictions are improper.

Second, if the defendant committed multiple acts, the court determines whether any of the convictions are for lesser-included offenses. Multiple convictions for lesser-included offenses are also impermissible.

In other words…

Lesser Included

Our supreme court has long held that the predicate offense for another crime is a lesser-included offense of the other crime.

Here, the defendant’s armed violence conviction is predicated upon his intent to deliver drugs while armed with a dangerous weapon. This was based on evidence that the defendant possessed a gun while also possessing drugs. He could not have violated the armed violence statute without committing the underlying felony of possessing drugs with the intent to deliver.

Thus, the two convictions clearly arise out of the same physical act.

State Is Wrong

The State responds that in 2009, the legislature changed the sentencing statute (730 ILCS 5/5-8-4(d) (West 2012)), creating clear legislative intent to provide for separate convictions for armed violence and possession of a controlled substance with intent to deliver, and so there is no violation of the one-act, one-crime rule.

“From [reading the armed violence statute,] it cannot be said that the legislature clearly intended to provide for the imposition of multiple convictions and sentences based on a single act. It is reasonable to say that the legislature intended only to increase or enhance the minimum penalty upon conviction of a felony when the violator was in possession of a dangerous weapon while committing the felony. *** If it were its intention the legislature could have expressly provided for separate convictions and sentences on charges of armed violence and its predicate or underlying felony.”

The statute is expressly directed to sentencing. It contains nothing to suggest intent to permit multiple convictions. The plain reading of the sentencing statute states that when there is an armed violence conviction predicated upon certain enumerated felonies, it triggers mandatory consecutive sentencing, such that any other convictions for which a defendant was sentenced must be served consecutively to the armed violence conviction. This in inapplicable to the defendant’s convictions.

Holding

We find that there was an error here because it was improper for the trial court to convict the defendant for possession of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of heroin, as it was the lesser-included offense of his armed violence conviction.

Affirmed in part, vacated in part, and mittimus corrected.

See Also

Episode 466 – People v. Coats, 2018 IL 121926 (January) (armed violence does not merge with being an armed habitual criminal because possession of drugs and guns are different acts)

Episode 451 – People v. Smith, 2017 IL App (1st) 151312 (October) (a single punch to the gut constituted one act)

People v. Witherspoon, 379 Ill.App.3d 298 (4th Dist. 2008) (under one-act one crime principles separate acts are established by language in the charge, notice given pretrial, argument to the jury, verdict sheets, and the JI )