No. 3--06--0295

_________________________________________________________________

Filed April 9, 2008

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2008

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of the 21st Judicial Circuit, 

) Kankakee County, Illinois,

Plaintiff-Appellee, )

)

v. ) No. 05--CF--116

)

PHILLIP L. HORRELL, ) Honorable

 ) Kathy S. Bradshaw Elliott,

Defendant-Appellant. ) Judge, Presiding.

_________________________________________________________________

JUSTICE CARTER delivered the opinion of the court:

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The defendant, Phillip L. Horrell, pled guilty to six counts

of forgery (720 ILCS 5/17--3(a)(1), (2) (West 2004)) concerning

three checks. The trial court sentenced the defendant to five

concurrent five-year terms of imprisonment on counts I to V, and

one year of probation on count VI. On appeal, the defendant

argues that three of the six counts for which he was convicted

must be vacated under one-act, one-crime principles. We affirm

and modify the sentence with regard to count VI.

BACKGROUND

In counts I, III, and V, the State charged the defendant

with making three forged checks (720 ILCS 5/17--3(a)(1) (West
2

2004)). In counts II, IV, and VI, the State charged him with

delivering the same three checks, knowing the checks to have been

made (720 ILCS 5/17--3(a)(2) (West 2004)). Counts I and II

concerned one check, counts III and IV concerned a second check,

and counts V and VI concerned a third check. The court accepted

the defendant's blind plea, and found him guilty of the six

counts.

In the court's written sentencing order, the court imposed

concurrent five-year terms of imprisonment for counts I to V. 

This document, however, does not mention count VI. At the

sentencing hearing, the judge said, "I'm gonna put you on

probation when you get out [of prison]." When the judge

pronounced sentence, she stated,

"As to *** all the counts you pled to, *** and they're

gonna run concurrent--on all of the counts, *** with

the exception of Count 6, you are sentenced to five

years in [the] Department of Corrections. And then,

Count 6, you are sentenced to *** one year reporting

probation."

The court denied the defendant's motion to reconsider the

sentences, and the defendant appealed.

ANALYSIS

The defendant contends that we must vacate three of his six

convictions under one-act, one-crime principles because he only
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committed three physical acts of forgery regarding three checks. 

The defendant acknowledges that he did not raise this issue in

his motion to reconsider, and thus he has forfeited it on appeal. 

Consequently, he asks us to consider this issue for plain error.

In order to preserve an issue for appeal, a defendant must

raise it in a written posttrial motion. People v. Lewis, 223

Ill. 2d 393, 860 N.E.2d 299 (2006). An issue that is not so

preserved is forfeited on review. People v. Woods, 214 Ill. 2d

455, 828 N.E.2d 247 (2005). However, we may consider a forfeited

issue for plain error. 134 Ill. 2d R. 615(a). The plain error

rule permits review of a forfeited question where (1) the

evidence was closely balanced; or (2) the error was so

substantial that it would affect the fundamental fairness of the

proceeding and the integrity of the judicial process. People v.

Hall, 194 Ill. 2d 305, 743 N.E.2d 521 (2000).

In this case, the defendant failed to preserve his argument

by raising it in his motion to reconsider. Therefore, the issue

is forfeited on appeal. Nonetheless, we will consider the

defendant's question for plain error because it concerns the

fundamental fairness of the proceedings and the integrity of the

judicial process. See Hall, 194 Ill. 2d 305, 743 N.E.2d 521.

The relevant portions of the Illinois forgery statute at

issue in this case state the following:
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"(a) A person commits forgery when, with intent to

defraud, he knowingly:

(1) makes or alters any document apparently

capable of defrauding another in such manner that it

purports to have been made by another or at another

time, or with different provisions, or by authority of

one who did not give such authority; or

(2) issues or delivers such document knowing

it to have been thus made or altered." 720 ILCS

5/17--3(a)(1), (2) (West 2004).

The defendant submits that with regard to each check for

which he was convicted under both sections 17--3(a)(1) and 17--

3(a)(2), we should vacate one conviction under one-act, one-crime

principles. The one-act, one-crime rule prohibits multiple

convictions where more than one offense is based on the same

physical act. People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117

(2001); People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977).

This court has found no Illinois case that is directly on

point concerning the defendant's argument. Thus, our application

of the one-act, one-crime rule to sections 17--3(a)(1) and 17--

3(a)(2) of the forgery statute appears to be a case of first

impression.

Prior to the Illinois Supreme Court's ruling in King, 66

Ill. 2d 551, 363 N.E.2d 838, the court considered whether
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multiple convictions should result from multiple acts under the

"independent motivation" test articulated in People v. Stewart,

45 Ill. 2d 310, 259 N.E.2d 24 (1970). In King, however, the

court rejected its previous "independent motivation" test in

favor of the one-act, one-crime rule. The King court defined an

"act" as "any overt or outward manifestation which will support a

different offense." King, 66 Ill. 2d at 566, 363 N.E.2d at 844-

45.

In Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117, our supreme

court reviewed several cases that had occurred since its King

ruling in which it had applied the one-act, one-crime rule. In

People v. Myers, 85 Ill. 2d 281, 426 N.E.2d 535 (1981), the court

held that each of several stab wounds alternately inflicted on

two victims constituted separate physical acts. In People v.

Dixon, 91 Ill. 2d 346, 438 N.E.2d 180 (1982), the court rejected

the defendant's argument that striking the victim several times

with a club constituted one physical act of beating the victim. 

Furthermore, the Crespo court declined to apply a six-factor test

concerning multiple convictions for multiple acts that had

developed in various Illinois Appellate Court cases. The Crespo

court reemphasized the simplicity of the King definition of an

act.

In this case, we are called upon to interpret the language

of sections 17--3(a)(1) and 17--3(a)(2) of the forgery statute
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under the one-act, one-crime rule. The cardinal rule of

statutory interpretation is to give effect to the intent of the

legislature. People v. Howard, 374 Ill. App. 3d 705, 870 N.E.2d

959 (2007). The best indication of legislative intent is the

language of the statute, which must be given its plain and

ordinary meaning. Howard, 374 Ill. App. 3d 705, 870 N.E.2d 959.

In the instant case, the defendant was charged under section

17--3(a)(1) with the physical act of making the checks. Under

section 17--3(a)(2), the defendant was charged with the separate

physical act of delivering the forged checks. The act of making

the checks was a different outward or overt manifestation from

the act of delivering the checks. These separate physical acts

support different offenses. Thus, we hold that under the oneact, one-crime rule articulated in King, 66 Ill. 2d 551, 363

N.E.2d 838, and reaffirmed in subsequent cases, such as Crespo,

203 Ill. 2d 335, 788 N.E.2d 1117, the trial court did not commit

plain error by convicting the defendant of six counts of forgery

concerning the making and delivering of three checks.

We are mindful that an accused, such as the present

defendant, who both makes and delivers the same forged documents,

theoretically could be convicted of three offenses under the

plain language of the forgery statute. Section 17--3(a)(1)

concerns making or altering documents. Section 17--3(a)(3)

concerns possessing such documents with intent to deliver or
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issue them (720 ILCS 5/17--3(a)(3) (West 2004)). Section 17--

3(a)(2) concerns actually delivering or issuing the documents. 

We note that in this case, the trial court's sentencing

order did not mention count VI. However, during the sentencing

hearing, the court said that the sentence for count VI was a oneyear term of probation, and "I'm gonna put you on probation when

you get out [of prison]." Furthermore, the court's phrase, "with

the exception of Count 6," ambiguously could have modified either

the concurrent or the five-year aspects of the prison sentences. 

The parties submit that the court's oral pronouncement meant that

count VI was to be served consecutively to the defendant's prison

sentences. We disagree.

Under the first sentence of the applicable probation

statute, a court has the authority to make a term of probation

consecutive to a prison term, but only if the total sentence

would not exceed the maximum prison sentence. 730 ILCS 5/5--6--

2(f) (West 2004). Additionally, under the second sentence of the

statute, the court may order a defendant's probation to begin

during his period of mandatory supervised release (MSR). 730

ILCS 5/5--6--2(f) (West 2004).

Forgery is a Class 3 felony. 720 ILCS 5/17--3(d) (West

2004). The sentencing range for a Class 3 felony is from two to

five years. 730 ILCS 5/5--8--1(a)(6) (West 2004). The period of
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mandatory supervised release for a Class 3 felony is one year. 

730 ILCS 5/5--8--1(d)(3) (West 2004).

In this case, the trial court stated that the defendant's

term of probation was to begin when he got out of prison. This

oral pronouncement could have meant either that the probation

term was to be served (1) consecutively to his prison sentence;

or (2) during his one-year period of MSR. If the court's

pronouncement concerned a consecutive term of probation, it would

be void, as unauthorized by statute, under the first sentence of

section 5--6--2(f) because the total term would exceed the

maximum five-year prison sentence. See People v. Thompson, 209

Ill. 2d 19, 805 N.E.2d 1200 (2004). However, if the court

intended the defendant's term of probation to begin during his

period of MSR, the court's pronouncement was authorized by the

second sentence of section 5--6--2(f). This second alternative,

regarding serving probation during MSR, is the only alternative

that is authorized by statute. Therefore, we modify the trial

court's sentencing order by making the sentence for count VI a

one-year term of probation to be served during the defendant's

MSR. See 730 ILCS 5/5--6--2(f) (West 2004). Our modification of

the sentence is pursuant to Supreme Court Rule 615(b)(1). 134

Ill. 2d R. 615(b)(1).

Additionally, we note that the State contends that we must

vacate the defendant's conviction for count VI because the
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sentence for count VI was made consecutive to the prison

sentences. For the reasons articulated above, the State's

assertion is both factually and legally incorrect. Thus, we need

not consider it further.

CONCLUSION

For the foregoing reasons, we (1) affirm the judgment of

conviction imposed by the Kankakee County circuit court

concerning counts I through VI; (2) affirm the court's sentences

regarding counts I through V; and (3) modify the sentencing order

by making the sentence for count VI a one-year term of probation

to be served during the defendant's MSR.

Affirmed as modified.

LYTTON and O’BRIEN J. J. concurring.