Docket No. 89520–Agenda 9–January 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

								TERRELL W. BELL, JR., Appellant.

Opinion filed May 24, 2001.

	JUSTICE McMORROW delivered the opinion of the court:

	In this appeal, we determine the proper test for ascertaining

whether offenses arise from an unrelated course of conduct for

purposes of imposing extended-term sentences under section

5–8–2(a) of the Unified Code of Corrections. 730 ILCS

5/5–8–2(a) (West 1998).

BACKGROUND

	Evidence produced at trial established the following facts. On

August 20, 1996, defendant and two friends, Ronald Smith and

Andre Anderson, visited Chuck and Charlie’s Tavern in Quincy,

Illinois. Terry Powell, an acquaintance of defendant, was also

present at the tavern. When Powell left the tavern, defendant,

Smith, and Anderson followed him into an alley and attacked him.

The men hit and kicked Powell, and defendant struck him several

times with a pool cue stick or a mop handle. At some point during

the beating, defendant took money from Powell’s trousers. The

men then continued to hit and kick Powell. The entire beating

lasted approximately 15 minutes.

	Defendant was subsequently apprehended and charged with

armed robbery (720 ILCS 5/18–2(a) (West 1998)), robbery (720

ILCS 5/18–1(a) (West 1998)) and two counts of aggravated

battery (720 ILCS 5/12–4(a), (b)(1) (West 1998)).1 On January 14, 1998, a jury in the circuit court of Adams County convicted

defendant of one count of armed robbery, one count of robbery

and two counts of aggravated battery. At defendant’s sentencing

hearing on February 20, 1998, the State sought a total sentence of

30 to 50 years’ imprisonment. Defendant requested leniency, due to his age of 24 years and his rehabilitative potential. The circuit

court sentenced defendant to a term of 20 years’ imprisonment for

the armed robbery conviction. The circuit court also imposed an

extended-term sentence of 10 years’ imprisonment pursuant to

section 5–8–2(a) of the Unified Code of Corrections (730 ILCS

5/5–8–2(a) (West 1998)) for the aggravated battery conviction.

The sentences were ordered to run concurrently pursuant to

section 5–8–4(a) of the Unified Code of Corrections (730 ILCS

5/5–8–4(a) (West 1998)) because the court found that the armed

robbery and aggravated battery were the result of a “single course

of conduct.”

	Defendant appealed. On appeal, defendant argued that: (1) the

trial court’s sentences were an abuse of discretion in light of

defendant’s rehabilitative potential; and (2) the trial court erred in

imposing an extended-term sentence for defendant’s aggravated

battery conviction. With respect to his second argument, defendant

contended that, because his convictions arose from a single course

of conduct, he was eligible to receive an extended-term sentence

only on the more serious class offense of armed robbery.

	The appellate court held that the trial court did not abuse its

discretion when sentencing defendant. 313 Ill. App. 3d 280, 283.

The appellate court also rejected defendant’s argument that he was

ineligible to receive an extended-term sentence for the aggravated

battery conviction. 313 Ill. App. 3d at 286. The appellate court

stated that, according to this court’s decision in People v. Jordan, 103 Ill. 2d 192 (1984), a defendant convicted of multiple offenses

may be sentenced to an extended-term sentence, pursuant to

section 5–8–2(a), only on those offenses within the most serious

class. 313 Ill. App. 3d at 283. The appellate court further noted,

however, that under section 5–8–2(a), extended-term sentences

may be imposed on differing classes of  offenses that arise from

“unrelated courses of conduct.” 313 Ill. App. 3d at 283, citing

People v. Coleman, 166 Ill. 2d 247, 257 (1995). In this case, the appellate court determined that defendant’s armed robbery and

aggravated battery convictions arose from an “unrelated course of

conduct,” and, therefore, he was eligible to receive an extended-

term sentence for the aggravated battery conviction pursuant to

section 5–8–2(a). 313 Ill. App. 3d at 286.

	In holding that defendant was eligible to receive an extended-

term sentence, the appellate court reasoned that there were two

possible tests for determining if a defendant’s offenses arise from

an “unrelated course of conduct.” 313 Ill. App. 3d at 285. One test

is derived from section 5–8–4(a) of the Code (730 ILCS

5/5–8–4(a) (West 1998)), which controls the imposition of

consecutive sentences for multiple convictions. Section 5–8–4(a)

states:

		“The court shall not impose consecutive sentences for

offenses which were committed as part of a single course

of conduct during which there was no substantial change

in the nature of the criminal objective, unless, one of the

offenses for which defendant was convicted was a Class X

or Class 1 felony and the defendant inflicted severe bodily

injury, or where the defendant was convicted of a violation

of Section 12–13, 12–14, or 12–14.1 of the Criminal Code

of 1961 ***.” 730 ILCS 5/5–8–4(a) (West 1998).

Therefore, generally, under section 5–8–4(a) consecutive sentences

will not be imposed where a defendant commits offenses that were

part of a “"single course of conduct during which there was “no

substantial change in the nature of the criminal objective.” 730

ILCS 5/5–8–4(a) (West 1998). This test is frequently referred to

as the “independent motivation” test. See, e.g., People v. Kagan, 283 Ill. App. 3d 212, 220 (1996); People v. Fritz, 225 Ill. App. 3d 624, 629 (1992); People v. Harris, 220 Ill. App. 3d 31, 32 (1991); People v. Ingram, 84 Ill. App. 3d 495, 498 (1980); People v. Siglar, 18 Ill. App. 3d 381, 383 (1974).

	The second test considered by the appellate court was the

“multiple acts test” (313 Ill. App. 3d at 285), which was originally

discussed in the context of extended-term sentences in a special

concurrence by Justice Cook in People v. Keene, 296 Ill. App. 3d 183, 191 (1998) (Cook, J., specially concurring).2 Under the “multiple acts test,” offenses arise from an “unrelated course of conduct” when the offenses are supported by more than one

physical act, unless one offense is an included offense. 313 Ill. App.

3d at 284-85.

	Examining the two tests, the appellate court concluded that

the section 5–8–4(a) test–whether there was a “substantial change

in the nature of [a defendant’s] criminal objective”–“has potential

for confusion and gives less guidance to trial courts.” 313 Ill. App.

3d at 285. The court rejected that test and, instead, adopted the

multiple acts test for the purpose of determining whether multiple

offenses arise from an “unrelated course of conduct” under section

5–8–2(a).

	Applying the multiple acts test to the case at bar, the appellate

court held that defendant’s offenses of armed robbery and

aggravated battery were supported by more than one physical act

and, therefore, were part of an “unrelated course of conduct.” 313

Ill. App. 3d at 285. The court noted that the evidence showed

defendant struck and kicked Powell before reaching into his

trousers and taking money. Defendant then struck and kicked

Powell again. Based on these facts, the court found that

“[d]efendant’s act of armed robbery, taking money from Powell’s

pants while armed with a dangerous weapon, was a separate and

distinct act from defendant’s act of striking and kicking [the

victim]. The act of reaching into Powell’s pants and taking his

money was a separate act from the act of striking and kicking [the

victim].” 313 Ill. App. 3d at 285-86. The court held that, although

the “acts had some connection to each other, *** [defendant]

committed two separate acts and two separate crimes.” 313 Ill.

App. 3d at 286. The appellate court concluded that defendant was

eligible for an extended-term sentence for aggravated battery and,

therefore, was properly sentenced. 313 Ill. App. 3d at 286.

	We granted defendant’s petition for leave to appeal. 177 Ill. 2d

R. 315(a).

ANALYSIS

	Before this court, defendant contends that he was not eligible

for an extended-term sentence under section 5–8–2(a) of the

Unified Code of Corrections (730 ILCS 5/5–8–2(a) (West 1998)) because his offenses of armed robbery and aggravated battery were

not part of an “unrelated course of conduct.”

	Section 5–8–2(a) of the Unified Code of Corrections governs

the imposition of an extended-term sentence and provides:

			“A judge shall not sentence an offender to a term of

imprisonment in excess of the maximum sentence

authorized by Section 5–8–1 for the class of the most

serious offense of which the offender was convicted unless

the factors in aggravation set forth in paragraph (b) of

Section 5–5–3.2 were found to be present.” 730 ILCS

5/5–8–2(a) (West 1998).

In Jordan, 103 Ill. 2d 192, we interpreted section 5–8–2(a) to mean that a defendant who is convicted of multiple offenses may

be sentenced to an extended-term sentence only on those offenses

whichthat are within the most serious class. Jordan, 103 Ill. 2d at 205- 06. However, extended-term sentences may be imposed “on

separately charged, differing class offenses that arise from

unrelated courses of conduct.” (Emphasis added.) Coleman, 166 Ill. 2d at 257.

	This court has not yet adopted a test to determine whether

multiple offenses arise from an “unrelated course of conduct” for

purposes of extended-term sentencing under section 5–8–2(a).

Defendant argues that we should adopt the section 5–8–4(a) test,

used to determine whether offenses arise from a “single course of conduct,” for purposes of consecutive sentencing, to determine the

similar question of whether multiple offenses arise from an

“unrelated course of conduct” for purposes of extended-term sentencing under section 5–8–2(a). Generally, under section

5–8–4(a), consecutive sentences will not be imposed “for offenses

which were committed as part of a single course of conduct during

which there was no substantial change in the nature of the criminal

objective.” Thus, defendant contends that the section 5–8–4(a)

test–whether there was a “substantial change in the nature of

[defendant’s] criminal objective”–should be used to determine

whether multiple offenses are part of an “unrelated course of

conduct” under section 5–8–2(a). According to defendant, the

adoption of a different test to interpret “unrelated courses of

conduct” and “single courses of conduct” will lead to confusion in the trial courts. Defendant thus contends that the appellate court

erred in adopting the multiple acts test to determine whether

offenses are part of an “unrelated course of conduct.”

	The State, in response, argues that the appellate court

correctly adopted the multiple acts test to determine whether

multiple offenses arise from an “unrelated course of conduct.”

Under the multiple acts test, when two or more offenses are

supported by more than one physical act, the offenses arise from an

“unrelated course of conduct,” unless one offense is an included

offense. 313 Ill. App. 3d at 284-85. The State argues that the

multiple acts test provides courts with more guidance and less

confusion than the section 5–8–4(a) test by giving courts a “clear

standard” to determine whether multiple offenses arise from an

“unrelated course of conduct.” In addition, the State contends that

whether offenses arise from a “single” or separate course of

conduct for purposes of consecutive sentencing under section

5–8–4(a) is a separate issue from whether the offenses arise from

an “unrelated course of conduct” for purposes of extended-term

sentencing under section 5–8–2(a). According to the State, the

legislature’s decision to draft two separate provisions for a

consecutive sentencing determination and an extended-term

sentencing determination indicates that the two sentencing

determinations require different standards. We disagree with the

State’s contentions.

	We hold that the section 5–8–4(a) test–whether there was a

“substantial change in the nature of [defendant’s] criminal

objective”–is the proper test for determining whether multiple

offenses arise from an “unrelated course of conduct” pursuant to

section 5–8–2(a). We do so for two reasons.

	First, in adopting the section 5–8–4(a) test to determine

whether offenses arise from an “unrelated course of conduct,” we

minimize any confusion that may result in the trial courts if two

different tests were required to determine whether offenses are part

of a “single” or separate course of conduct under section 5–8–4(a)

and whether they are part of an “unrelated course of conduct”

under section 5–8–2(a). As we discuss below, if we were to adopt

the multiple acts test, a court could find that a defendant’s offenses

were part of a “single course of conduct” and impose consecutive sentences pursuant to section 5–8–4(a), and then find that those

same offenses were part of an “unrelated course of conduct” and

impose an extended-term sentence on a lesser class offense

pursuant to section 5–8–2(a).

	The case at bar provides an example of the confusion that

could result. Here, the trial court specifically found that

defendant’s offenses were part of a “single course of conduct” and,

accordingly, sentenced him to concurrent sentences under section

5–8–4(a). The trial court then sentenced defendant to an extended-

term sentence for the lesser class offense of aggravated battery.

Although neither defendant nor the State contested the trial court’s

finding that defendant’s offenses were part of a “single course of

conduct” under section 5–8–4(a), defendant did appeal the trial

court’s imposition of an extended-term sentence. On appeal, the

appellate court applied the multiple acts test to determine whether

defendant was eligible for an extended-term sentence and found

that defendant’s offenses were part of an “unrelated course of

conduct.” Thus, under the appellate court’s reasoning, defendant’s

offenses were, at the same time, part of a “single” yet “unrelated”

course of conduct. In adopting the same test to determine whether

offenses were part of a “single course of conduct” and whether the

same offenses were part of an “unrelated course of conduct,” we

avoid the possibility of such an absurd result.

	Second, under the multiple acts test, virtually all offenses will

be “unrelated,” because different offenses generally require proof

of different physical acts. Indeed, the State conceded at oral

argument that, under the multiple acts test, it is “a possibility” that

any two crimes would be considered unrelated, such that an

extended-term sentence would be appropriate in nearly every

situation. The only example the State could offer as to when a

court would be prohibited from imposing an extended-term

sentence on a lesser class offense would be a case in which a

defendant shoots a bullet into one person, and the bullet exits the

body of that person and enters another person, thereby killing both

persons.

	We do not believe that 5–8–2(a) should or was intended to

address such limited situations, especially because, even under the

State’s “single bullet” scenario, an extended-term sentence would not be possible. In People v. Segara, 126 Ill. 2d 70 (1988), we held that “ ‘if exactly the same physical act does form the basis for more

than one offense, a defendant may still be prosecuted for each

offense, but only one conviction and sentence may be imposed.’ ” Segara, 126 Ill. 2d at 77, quoting H. Eisenberg, Multiple Punishments for the “Same Offense” in Illinois, 11 S. Ill. U. L.J. 217, 237 (1987). Thus, where two offenses result from the same

physical act, there would be no need to determine whether those

offenses are part of an “unrelated course of conduct,” because only one conviction and sentence will be imposed. It appears then that an extended-term sentence would be permissible in essentially

every situation under the multiple acts test. However, as we have

held, imposition of an extended-term sentence on a lesser class

offense is not appropriate in every situation but, rather, is

appropriate only where offenses arise from an “unrelated course of

conduct.”

	The State relies upon People v. King, 66 Ill. 2d 551 (1977), in which this court found problematic the use of the section 5–8–4(a)

test to determine whether a defendant convicted of multiple

offenses may have concurrent sentences imposed. King, 66 Ill. 2d at 564. In King, we adopted the multiple acts test for determining whether concurrent sentences are appropriate. King, 66 Ill. 2d at 566. However, we observed a “distinction” between the imposition

of consecutive and concurrent sentences and held that a defendant

is prejudiced if he receives “consecutive sentences for crimes

arising from multiple acts motivated by essentially the same

criminal objective.” King, 66 Ill. 2d at 565. We noted that a defendant’s criminal objective is relevant in determining whether

consecutive sentences may be imposed. King, 66 Ill. 2d at 565. The issue in the case at bar, whether a defendant is eligible for an

extended-term sentence, is more akin to a determination of whether

a defendant can receive consecutive sentences than it is to a

determination of whether multiple convictions and concurrent

sentences may be imposed. Indeed, we have previously relied on

section 5–8–2(a), which governs extended-term sentencing, in

construing section 5–8–4(a), which governs consecutive

sentencing. See People v. Terrell, 132 Ill. 2d 178, 229 (1989) (“Although the statute we are discussing authorizes the imposition of consecutive sentences, rather than extended terms of

imprisonment, it too concerns a sentence of ‘imprisonment’ ”).

Therefore, the State’s reliance on King is misplaced.

	We hold that, in determining whether a defendant’s multiple

offenses are part of an “unrelated course of conduct” for the

purpose of his eligibility for an extended-term sentence under

section 5–8–2(a), courts must consider whether there was a

substantial change in the nature of the defendant’s criminal

objective. If there was a substantial change in the nature of the

criminal objective, the defendant’s offenses are part of an

“unrelated course of conduct” and an extended-term sentence may

be imposed on differing class offenses. If, however, there was no

substantial change in the nature of the criminal objective, the

defendant’s offenses are not part of an unrelated course of

conduct, and an extended-term sentence may be imposed only on

those offenses within the most serious class.

	Having adopted the section 5–8–4(a) test for determining

whether multiple offenses are part of an “unrelated course of

conduct” pursuant to section 5–8–2(a), we apply that test to the

case at bar. Here, the trial court found that defendant’s offenses of

armed robbery and aggravated battery were the result of a “single

course of conduct” under section 5–8–4(a). Because this finding

was not contested by either party, we accept it for the purpose of

this appeal. Based on the trial court’s finding that defendant’s

offenses were part of a “single course of conduct,” those offenses

cannot be part of an “unrelated course of conduct.” Consequently,

defendant is eligible for an extended-term sentence only on the

most serious class offense. Aggravated battery is a Class 3 felony

and is a less serious class of offense than armed robbery, a Class X

felony. 720 ILCS 5/12–4(e), 18–2(b) (West 1998). Therefore, the

trial court erred in imposing an extended-term sentence on

defendant’s aggravated battery conviction.

CONCLUSION

	For the foregoing reasons, the judgment of the appellate court

is reversed. We vacate the circuit court’s imposition of an

extended-term sentence for defendant’s aggravated battery conviction. We remand the matter to the circuit court with

directions to resentence defendant for the aggravated battery

conviction pursuant to section 5–8–1(a)(6) of the Unified Code of

Corrections (730 ILCS 5/5–8–1(a)(6) (West 1998)).

Appellate court judgment reversed;

circuit court judgment vacated in part;

cause remanded with directions.

	JUSTICE GARMAN took no part in the consideration or

decision of this case.