Illinois Official Reports 

Appellate Court

People v. Palen, 2016 IL App (4th) 140228

Appellate Court 

Caption

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

SCOTT PALEN, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-14-0228

Filed September 30, 2016

Decision Under 

Review

Appeal from the Circuit Court of Sangamon County, No. 12-CF-745; 

the Hon. Leslie J. Graves, Judge, presiding.

Judgment Affirmed in part and vacated in part; cause remanded with directions.

Counsel on

Appeal

Michael J. Pelletier, Jacqueline L. Bullard, and Ryan R. Wilson 

(argued), all of State Appellate Defender’s Office, of Springfield, for 

appellant.

John Milhiser, State’s Attorney, of Springfield (Patrick Delfino, 

David J. Robinson, and John M. Zimmerman (argued), all of State’s 

Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE POPE delivered the judgment of the court, with opinion.

Justice Holder White concurred in the judgment and opinion.

Justice Steigmann dissented, with opinion.
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 OPINION 

¶ 1 Following a September 2012 incident at a Springfield apartment building, the State 

charged defendant, Scott Palen, with attempt (residential burglary) (720 ILCS 5/8-4(a), 19-3(a) 

(West 2010)) and possession of burglary tools (720 ILCS 5/19-2(a) (West 2010)). Defendant’s 

first trial began on September 30, 2013. Two assistant State’s Attorneys, Karen Tharp and 

Steven McClure, represented the State. Prior to the trial’s evening recess, the trial court swore 

eight jurors. Before trial resumed the next day, Tharp’s father died. Prior to the resumption of 

jury selection, the court noted the somber circumstances, Tharp’s resultant absence, and 

McClure’s comparative inexperience, and then sua sponte declared a mistrial. 

¶ 2 In November 2013, the trial court began jury selection for defendant’s second trial. 

Defendant never filed a motion to dismiss pursuant to section 114-1(a)(2) of the Code of 

Criminal Procedure of 1963 (Procedural Code) (725 ILCS 5/114-1(a)(2) (West 2012)) based 

on double jeopardy principles. The second jury convicted defendant of attempt (residential 

burglary) and possession of burglary tools. Defendant filed a posttrial motion raising the 

double jeopardy issue by arguing the court erred in declaring a mistrial in the first case. 

Thereafter the trial court denied defendant’s posttrial motion and sentenced defendant to 

concurrent sentences of 10 and 6 years in prison. 

¶ 3 Defendant appeals, arguing (1) the trial court abused its discretion by declaring a mistrial 

unmerited by a manifest necessity, and, as a result, double jeopardy barred his retrial; (2) his 

prior burglary conviction was improperly admitted; (3) the court erred in sentencing where 

(a) it made improper findings, (b) it failed to adequately consider the evidence presented in 

mitigation, and (c) his six-year sentence for possession of burglary tools violates the 

prohibition against imposing an extended-term sentence on a lesser class felony offense; and 

(4) the matter should be remanded to allow the court to conduct an ineffective-assistanceof-counsel inquiry pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). We 

affirm in part, vacate in part, and remand with directions. 

¶ 4 I. BACKGROUND 

¶ 5 On September 20, 2012, the State charged defendant by information with attempt 

(residential burglary) (720 ILCS 5/8-4(a), 19-3(a) (West 2010)) and possession of burglary 

tools (720 ILCS 5/19-2(a) (West 2010)), based on an incident on September 5, 2012. 

¶ 6 On June 26, 2013, the State filed a motion seeking to introduce defendant’s prior 

conviction for residential burglary of an apartment. The State argued defendant’s 2009 

conviction would establish his intent, motive, knowledge, modus operandi, and absence of 

mistake for the charged conduct in this case. 

¶ 7 On July 8, 2013, the State filed a notice of intent to impeach defendant with prior 

convictions for residential burglary and felony disorderly conduct. 

¶ 8 During the September 13, 2013, hearing on the State’s motions, the State argued the facts 

underlying the prior residential burglary conviction were substantially similar to those of the 

instant case, and therefore, the prior conviction was highly probative. In the prior case, 

defendant broke a window and entered the apartment while the occupant was home. The State 

maintained the prior conviction showed defendant had, in the past, “the intent to break in 

despite someone being home.” Defendant argued there are only so many ways a residential 
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burglary can occur. Defendant pointed out individuals committing residential burglary often 

attempt to gain entry through windows at night. 

¶ 9 At the conclusion of the hearing, the trial court granted the State’s request to admit 

defendant’s prior conviction. The court noted it would provide the jury with an instruction 

limiting consideration of the prior conviction to the issue of intent and knowledge. The court 

also found the State could use defendant’s prior disorderly conduct convictions for 

impeachment if defendant chose to testify but barred the State from using the prior residential 

burglary conviction for impeachment purposes. 

¶ 10 On September 30, 2013, defendant’s first trial began. Prior to voir dire, the trial court 

described how jury selection would proceed, stating, “we’ll continue the process until we have 

12 jurors plus [2] alternates.” During voir dire, defendant and assistant State’s Attorneys Karen 

Tharp and Steven McClure agreed on eight jurors, who were sworn by the trial court before the 

proceedings recessed for the evening. Before the trial resumed the next day, Tharp’s father 

died. Prior to the resumption of jury selection, the court noted Tharp’s resultant absence and, 

addressing the somber circumstances, stated, “While I appreciate Mr. McClure being here, I’m 

not sure this would be the best way for him to do his first felony trial by himself. So due to very 

unfortunate circumstances, I’m going to call a mistrial in this matter.”

¶ 11 After speculating that Tharp would likely return to work within several days, the trial court 

continued, “I’m going to give [defendant] a court date. I apologize for the [in]convenience. 

This is obviously something that we have no control over.” 

¶ 12 We note the trial court declared a mistrial without eliciting the position or advice of defense 

counsel or assistant State’s Attorney McClure. After the court declared a mistrial, defendant 

acknowledged the court’s action and replied, “Yes, ma’am.” 

¶ 13 Defendant’s second trial began on November 13, 2013. During trial, Melissa Morgan 

testified she heard banging on the side of her apartment near her bedroom window on 

September 5, 2012, shortly after 10 p.m. Morgan assumed it was just neighborhood kids 

making noise outside, which she characterized as a common occurrence. A short time later, 

Morgan’s telephone rang. At about the same time, someone started flashing a light in her 

bedroom window. Morgan testified she did not immediately answer the phone because she was 

in bed with her one-year-old daughter and was scared. When Morgan returned the call, a 

member of the police department explained an officer was outside her apartment. Morgan met 

with the officer, who explained someone had tried to force open her bedroom window. Morgan 

observed, from the outside, the window appeared “pried open.” When Morgan returned inside 

the apartment, she noticed the window lock was broken. Morgan testified she always checks 

all the windows to make sure they are locked prior to going to bed. The lock was not broken 

when she went to bed that night. 

¶ 14 Ryan Alexander and Corey Roberts each testified they were at Morgan’s apartment 

complex at approximately 10 p.m. on September 5, 2012. Alexander testified he observed a 

truck parked on the side of the one of the apartment buildings. A man, whom Alexander and 

Roberts both identified as defendant, got out of the truck. Defendant was wearing a “hoodie” 

and shorts. Alexander testified defendant walked around the apartment buildings. Alexander 

and Roberts followed him. Alexander observed defendant stop near Morgan’s apartment and 

stand on an air conditioning unit. Roberts climbed onto the roof of an adjacent shed to watch 

defendant. Both Alexander and Roberts observed defendant remove a flat bar from inside his 

“hoodie” and attempt to force open the window with it. Alexander and Roberts both heard a 
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“loud pop” sound. After defendant saw Alexander looking at him, defendant walked away 

from the apartments down a nearby road. Alexander followed defendant. While he lost sight of 

defendant for a moment, Alexander observed defendant walking back to the apartments. 

Defendant returned to his truck and drove it “recklessly,” cutting through the grass and out of 

the apartment complex without turning on the truck’s headlights. By that point, Roberts had 

already called the police and provided them with a description of the truck and its license plate 

number. Alexander testified he chased the truck on foot until he saw two police cars stop the 

truck. Both Alexander and Roberts identified defendant to police as the man they earlier 

observed in the apartment complex. 

¶ 15 Springfield police officer Jennifer Wallace testified, although she was unable to find any 

latent fingerprints around Morgan’s bedroom window, she observed a shoe print on the air 

conditioner which had a similar pattern to the soles of the shoes worn by defendant. 

¶ 16 Springfield police officer Todd Schwehr testified he was responding to a suspicious 

persons call at Morgan’s apartment complex. When he arrived at the complex, he observed a 

truck leaving the parking lot at a high rate of speed. Schwehr identified defendant as the driver 

of that truck. Schwehr testified defendant, who was wearing shorts but no shirt, was “sweating 

profusely” and “breathing heavily.” Police recovered a pair of gloves and a flat pry bar from 

inside the cab of the truck. 

¶ 17 The trial court then read the jury an instruction explaining the State was going to introduce 

evidence regarding other prior bad acts defendant committed. That instruction limited the 

jury’s consideration of the other acts to defendant’s intent and knowledge.

¶ 18 The State then called Springfield police officer Mark Terecki to testify. According to 

Terecki’s testimony, on April 26, 2009, at approximately 2:20 a.m., he was investigating a 

report someone kicked in a window and entered an apartment. Terecki shined his flashlight 

into the apartment and saw defendant running toward the exit. A woman was sleeping in an 

adjacent room. Defendant was arrested and found with $40, which had been taken from inside 

the apartment. Defendant confessed and pleaded guilty to residential burglary. 

¶ 19 Prior to its deliberations, the trial court instructed the jury on attempt (residential burglary), 

attempt (criminal trespass to a residence), and possession of burglary tools. 

¶ 20 Thereafter, the second jury convicted defendant of attempt (residential burglary) and 

possession of burglary tools. 

¶ 21 On December 11, 2013, defendant’s trial counsel filed a posttrial motion arguing, 

inter alia, double jeopardy barred his retrial and the trial court erred in allowing the 

other-crimes evidence. 

¶ 22 On February 4, 2014, the trial court denied defendant’s posttrial motion and sentenced him 

to concurrent terms of 10 and 6 years in prison, respectively. 

¶ 23 On March 3, 2014, defendant filed a motion to reconsider his sentence, arguing his 10-year 

sentence was “too high” and “did not properly take into account all of the factors in 

mitigation.”

¶ 24 On March 18, 2014, the trial court denied defendant’s motion to reconsider his sentence. 

The court stated it carefully considered the factors in mitigation and aggravation, as well as 

defendant’s family circumstances and his history. The court believed the sentence “was quite 

fair.” At the conclusion of the hearing, defendant’s counsel asked the court to direct the clerk to 

file a notice of appeal on defendant’s behalf. 
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¶ 25 On March 20, 2014, the circuit clerk’s office received a pro se correspondence from 

defendant, which was addressed to the “Appeals Clerk.” Along with a notice of appeal, 

defendant included a letter addressed “To whom it may concern.” According to that letter, 

defendant wanted to “inform the Appellate Court and anyone else it may concern” of errors he 

believed were made during his trial. Specifically, defendant alleged, inter alia, he received 

ineffective assistance from his trial counsel. Defendant did not raise any of those allegations at 

the hearing two days earlier despite his presence at that hearing. 

¶ 26 This appeal followed. 

¶ 27 II. ANALYSIS 

¶ 28 On appeal, defendant argues (1) the trial court abused its discretion by declaring a mistrial 

absent a manifest necessity and, accordingly, the double jeopardy clause barred his retrial; 

(2) his prior burglary conviction was improperly admitted; (3) the court erred in sentencing 

where (a) it made improper findings, (b) it failed to adequately consider the evidence presented 

in mitigation, and (c) his six-year sentence for possession of burglary tools violates the 

prohibition against imposing an extended-term sentence on a lesser class felony offense; and 

(4) the matter should be remanded to allow the court to conduct a Krankel inquiry. 

¶ 29 A. Double Jeopardy Claim 

¶ 30 Defendant’s primary argument is the trial court abused its discretion by declaring a mistrial

absent a manifest necessity and, accordingly, the double jeopardy clause barred his retrial. 

Originally, neither party raised the issue of whether double jeopardy applied when only eight 

jurors had been sworn. Instead, their briefs assumed jeopardy had attached and simply argued 

whether a manifest necessity existed to allow a second trial. This court, on its own motion, 

ordered the parties to file supplemental briefs to address whether the swearing of a partial jury 

was sufficient to invoke double jeopardy principles. We also directed the parties to address 

whether defendant forfeited his double jeopardy argument by failing to file a motion to dismiss 

pursuant to section 114-1(a)(2) of the Procedural Code (725 ILCS 5/114-1(a)(2) (West 2012)) 

and section 3-4(a)(3) of the Criminal Code of 1961 (720 ILCS 5/3-4(a)(3) (West 2010)). 

Thereafter, we set this case for oral argument. 

¶ 31 1. Forfeiture

¶ 32 Before turning to the merits of defendant’s double jeopardy claim, we address the State’s 

contention defendant forfeited his argument because it was not raised until his posttrial motion. 

While defendant concedes he did not file a motion to dismiss the charges on double jeopardy 

grounds prior to trial, he maintains the issue is still reviewable under the plain-error doctrine. 

We agree. 

¶ 33 Upon a written motion made prior to trial, a trial court may dismiss charges barred by 

double jeopardy. See 720 ILCS 5/3-4(a)(3) (West 2010) (“A prosecution is barred if the 

defendant was formerly prosecuted for the same offense, based upon the same facts, if that 

former prosecution *** was terminated improperly after the jury was impaneled and sworn 

***.”). “Our supreme court has held that ‘[t]he constitutional right to not be twice put in 

jeopardy for the same offense is a personal privilege which may be [forfeited]’ where the 

accused ‘does not raise the defense of former jeopardy before judgment in the trial court.’ ” 
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People v. Brown, 2015 IL App (1st) 134049, ¶ 26, 36 N.E.3d 306 (quoting People v. Scales, 18 

Ill. 2d 283, 285, 164 N.E.2d 76, 77 (1960) (failure to raise the defense of double jeopardy 

before judgment in the trial court forfeits the defense)). However, the supreme court has also 

held a procedurally defaulted double jeopardy claim may still be reviewed on appeal under the 

plain-error doctrine. Id. ¶ 27 (citing People v. Mink, 141 Ill. 2d 163, 172-73, 565 N.E.2d 975, 

979 (1990)). 

¶ 34 The plain-error doctrine provides a narrow exception to the general rule of forfeiture. 

People v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009). It allows a reviewing court 

to reach an unpreserved error in two circumstances: (1) where the evidence is closely balanced, 

regardless of the nature of the error, or (2) where the error is so serious that the defendant was 

denied a substantial right and a fair trial, regardless of the closeness of the evidence. People v. 

Herron, 215 Ill. 2d 167, 178-79, 830 N.E.2d 467, 475 (2005). Prior to determining whether 

plain error occurred, however, we first determine whether error occurred at all. People v. 

Lewis, 234 Ill. 2d 32, 43, 912 N.E.2d 1220, 1227 (2009). If error did occur, we then consider 

whether either prong of the plain-error doctrine has been satisfied. People v. Sargent, 239 Ill. 

2d 166, 189-90, 940 N.E.2d 1045, 1059 (2010). To determine whether any error occurred, we 

examine whether defendant was improperly subjected to double jeopardy. Brown, 2015 IL 

App (1st) 134049, ¶ 27, 36 N.E.3d 306. 

¶ 35 2. Standard of Review

¶ 36 Ordinarily, we review a trial court’s judgment on the question of whether double jeopardy 

attaches for an abuse of discretion. See People v. Brener, 357 Ill. App. 3d 868, 870, 830 N.E.2d 

692, 693 (2005) (trial court’s denial of a motion to dismiss on double jeopardy grounds 

reviewed for an abuse of discretion). “However, where, as here, neither the facts nor the 

credibility of witnesses is at issue, we address a purely legal question, and our standard of 

review is de novo.” In re Gilberto G.-P., 375 Ill. App. 3d 728, 730, 873 N.E.2d 534, 537 (2007) 

(citing Brener, 357 Ill. App. 3d at 870, 830 N.E.2d at 693). 

¶ 37 3. Merits of Defendant’s Claim

¶ 38 The constitutions of the United States and Illinois protect the accused from being placed in 

jeopardy twice for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10. 

Jeopardy begins or attaches “when the accused has been arraigned and the jury impaneled and 

sworn.” People v. Friason, 22 Ill. 2d 563, 565, 177 N.E.2d 230, 231 (1961). However, the bar 

against double jeopardy does not apply in every case where jurors are sworn. See United States 

v. Perez, 22 U.S. 579, 580 (1824) (stating “the law has invested Courts *** with the authority 

to discharge a jury from giving any verdict, whenever, in their opinion, taking all the 

circumstances into consideration, there is a manifest necessity for the act, or the ends of public 

justice would otherwise be defeated”). The Illinois Supreme Court’s decision in Dreyer v. 

People, 188 Ill. 40, 47, 58 N.E. 620, 622 (1900), similarly established a trial court may 

discharge a jury without the consent of the defendant as necessity requires. However, this 

necessity is weighed against the constitutionally guaranteed rights of the defendant: “[t]he 

doctrine of manifest necessity commands a trial judge not to foreclose a defendant’s right to 

have a particular tribunal decide his fate unless the ends of justice would be defeated by 

continuing the proceedings.” People v. LaFond, 343 Ill. App. 3d 981, 985, 799 N.E.2d 518, 

521 (2003). On the other hand, if jeopardy did not attach to the swearing of only eight jurors, 
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we need not reach the issue of whether a manifest necessity existed to declare a mistrial. 

Illinois v. Somerville, 410 U.S. 458, 468 (1973). 

¶ 39 Defendant contends the trial court placed him in jeopardy when it swore in eight jurors. As 

the United States Supreme Court has explained, its “cases have repeatedly stated the 

bright-line rule that ‘jeopardy attaches when the jury is empaneled and sworn.’ ” Martinez v. 

Illinois, 572 U.S. ___ , ___, 134 S. Ct. 2070, 2072 (2014) (quoting Crist v. Bretz, 437 U.S. 28, 

35 (1978)). In Martinez, the Supreme Court of Illinois permitted the defendant to be retried 

under a theory the defendant was not “subjected to the hazards of trial and possible 

conviction,” and thus jeopardy did not attach, when the prosecution refused to participate in his 

first trial. Id. The United States Supreme Court reversed and reiterated the rule, “[a] jury trial 

begins, and jeopardy attaches, when the jury is sworn.” Id. Noting the court had stated a 

bright-line rule in every case, the United States Supreme Court stated, “Jeopardy attaches 

when ‘a defendant is “put to trial,” ’ and in a jury trial, that is ‘when a jury is empaneled and 

sworn.’ ” Id. (quoting Serfass v. United States, 420 U.S. 377, 388 (1975)). 

¶ 40 The United States Supreme Court’s decision in Crist is one of the court’s seminal double 

jeopardy cases. As Justice Stewart explained in the first paragraph of Crist, “The precise issue 

is whether the federal rule governing the time when jeopardy attaches in a jury trial is binding 

on Montana through the Fourteenth Amendment. The federal rule is that jeopardy attaches 

when the jury is empaneled and sworn; a Montana statute provides that jeopardy does not 

attach until the first witness is sworn.” Crist, 437 U.S. at 29. Ultimately, the Court concluded, 

“[W]e explicitly hold *** [t]he federal rule that jeopardy attaches when the jury is empaneled 

and sworn is an integral part of the constitutional guarantee against double jeopardy.” Id. at 38. 

“The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in 

the need to protect the interest of an accused in retaining a chosen jury. *** [T]he defendant’s 

‘valued right to have his trial completed by a particular tribunal’ is now within the protection of 

the constitutional guarantee against double jeopardy, since it is that ‘right’ that lies at the 

foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn. 

[Citations.]” Id. at 35-36. 

¶ 41 Later, the United States Supreme Court, citing Crist, stated, “There are few if any rules of 

criminal procedure clearer than the rule that ‘jeopardy attaches when the jury is empaneled and 

sworn.’ ” Martinez, 572 U.S. at ___, 134 S. Ct. at 2074 (quoting Crist, 437 U.S. at 35). While 

the court has not defined the term “empaneled and sworn,” it cited with approval 6 Wayne R. 

LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 25.1(d) (3d ed. 

2007). That section is now found at 6 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & 

Orin S. Kerr, Criminal Procedure § 25.1(d) (4th ed. 2015) and is basically unchanged from the 

version cited in Martinez.

¶ 42 In describing the holding in Crist, LaFave’s treatise states, “In Crist, the Court held that the 

point at which jeopardy attaches is the moment at which the entire jury has been selected and 

has taken the oath required for service at trial.” Id. The treatise goes on to state jeopardy 

attaches in a jury trial only after jury selection is complete and the judge has sworn the entire 

jury, including any alternate jurors. Id.

¶ 43 Although neither party cited any case involving facts similar to those presented in this case, 

i.e., swearing jurors prior to completion of the selection process, our research has uncovered 

multiple cases addressing the issue of whether jeopardy attaches when only part of a jury has 

been sworn. Most are out-of-state authorities, but People v. Boaz, 222 Ill. App. 3d 363, 583 
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N.E.2d 714 (1991), is an Appellate Court, Fifth District, opinion. In that case, voir dire was 

completed, and the trial judge sent the prospective jurors to lunch. Id. at 364, 583 N.E.2d at 

715. Over the lunch hour, counsel selected 12 jurors and 1 alternate. Id. After lunch, 11 jurors 

and the alternate were sworn, the twelfth juror not having returned on time. Id. Before the 

twelfth juror returned, the defendant moved to confine the State to prove the allegations in the 

bill of particulars, i.e., the offense occurred on March 30, 1989, not March 5, 1989. Id. The 

State moved to amend its bill, but the defendant argued the State could not amend because the 

trial had already begun. Id. 

¶ 44 The trial court ruled because only 11 jurors had been sworn, the trial had not yet begun, and 

it allowed the State leave to amend. Id. The defendant moved for a mistrial. Id. The court 

granted a mistrial but ruled jeopardy had not attached and the defendant was subject to retrial. 

Id. at 364-65, 583 N.E.2d at 715. The appellate court held jeopardy attaches in a jury trial once 

the jury is empaneled and sworn. Id. (citing Crist, 437 U.S. 28, and Ill. Rev. Stat. 1989, ch. 38, 

¶ 3-4(a)(3)). The court went on to hold the jury had not yet been empaneled and sworn because 

the twelfth juror had not been sworn. Id. 

¶ 45 Turning to the out-of-state cases, in State v. Hedgspeth, 974 So. 2d 150, 154 (La. Ct. App. 

2008), a jury trial began on January 9, 2006. Ten of twelve jurors were selected and sworn. Id. 

The next day, the State moved for a continuance because, unbeknownst to it, deoxyribonucleic 

acid (DNA) testing had not been conducted. Id. The defendant objected on the grounds 10 

jurors were already selected and sworn and he had a right to be tried before the jurors already 

selected. Id.

¶ 46 The Hedgspeth court found as follows: “The right to have one’s trial completed by a 

particular tribunal is within the protection of the constitutional guarantee against double 

jeopardy, since it is that ‘right’ that lies at the foundation of the rule that jeopardy attaches 

when the whole jury is empaneled and sworn.” (Emphasis added.) Id. at 154-55 (citing Crist, 

437 U.S. 28). However, in the instant case, that “right” had not yet attached when the trial court 

granted the State’s motion to dismiss the partial jury. The Hedgspeth court went on to say, “It 

is clear that double jeopardy did not attach when the trial court dismissed the partial jury.” Id.

at 155. The court further noted the public has an interest in affording the State one full and fair 

opportunity to present its evidence to an impartial jury. Id. (citing Somerville, 470 U.S. 458).

¶ 47 In State v. Albert, 430 So. 2d 1279, 1281 (La. Ct. App. 1983), six jurors had been selected 

and sworn when the prosecutor nol-prossed the charges. The defendant contended jeopardy 

attached in a jury trial when the first juror was sworn. Id. at 1282. Citing the federal rule under 

Crist, the court stated jeopardy attaches when the jury is empaneled and sworn. Id. Noting 

Crist does not address the issue of partial jury selection, the court cited the Louisiana Supreme 

Court case of State v. Sermon, 404 So. 2d 261 (La. 1981), where the supreme court found the 

selection and swearing of three jurors was insufficient to trigger double jeopardy. Albert, 430 

So. 2d at 1282. The court rejected the defendant’s contention jeopardy attached in a jury trial 

when the first juror is sworn, finding no authority whatsoever for that argument. Id.; see also 

State v. Saltzman, 128 So. 3d 1060 (La. Ct. App. 2013); State v. Tuckson, 781 So. 2d 807 (La. 

Ct. App. 2001).

¶ 48 California courts have also addressed this issue. In In re Mendes, 592 P.2d 318, 319 (Cal. 

1979) (en banc) (superseded by statute on other grounds), the California Supreme Court held 

selection of a jury in a criminal case is not completed and jeopardy does not attach until all of 

the jurors, including any alternate jurors, are sworn.
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¶ 49 In Mendes, 12 jurors were chosen and sworn, and the venire was exhausted at the end of the 

day before an alternate could be selected. Id. at 320. The trial court announced, “ ‘We’re going 

to go ahead without an alternate, and you can put that on the record.’ ” Id. Before counsel 

arrived the next morning, a juror informed the court her brother died during the night, and the 

court excused her from jury duty. Id. When counsel returned, the court relayed what happened 

and suggested counsel choose a replacement juror and two alternates. Id. Defendant moved for 

a mistrial on double jeopardy grounds. Id.

¶ 50 The California Supreme Court concluded selection of the jury had not been completed 

because alternate jurors had not been chosen and sworn. Id. at 321. It further held, where a 

court indicates the trial will be conducted with alternates, empanelment of the jury is not 

deemed complete until alternates are selected and sworn. Id. Noting Crist does not define 

“jury” or “empaneled and sworn,” the court could not conclude Crist mandated a different 

result. Id. at 322. The court went on to find the trial court intended to select alternates and 

further, even if the trial court’s comment about proceeding without alternates was accepted, the 

supreme court noted the trial court had the right to change its mind about selecting alternates. 

Id. at 835-36.

¶ 51 In People v. McDermott, 51 P.3d 874, 899 (Cal. 2002), the California Supreme Court held, 

where a court has indicated it intends to select alternates, empanelment is not complete until 

alternates are selected and sworn. The supreme court further concluded its decision did not 

conflict with Crist and declined the defendant’s request to overrule Mendes. Id.; see also 

United States v. Trigg, 988 F.2d 1008, 1010 (9th Cir. 1993) (dismissal of 3 of 12 sworn jurors 

for unavailability before selection of alternate jurors did not violate the defendant’s right to 

retain a chosen jury as recognized in Crist); People v. Hernandez, 64 P.3d 800, 802-06 (Cal. 

2003) (discussing policies underlying double jeopardy principles and protecting the interest of 

the accused in retaining a chosen jury).

¶ 52 Here, the trial court announced its intention to select 12 jurors and 2 alternate jurors. Only 

eight jurors had been selected and sworn at the time the court declared a mistrial. Thus, jury 

selection had not been completed, a jury had not been “empaneled and sworn,” and therefore, 

jeopardy had not yet attached. Because jeopardy had not attached, we need not reach the issue 

of whether manifest necessity supported the granting of a mistrial. 

¶ 53 We suggest the better practice for trial courts is to wait to swear jurors until the entire 

panel, including alternates, has been selected. This would preclude any argument jeopardy had 

attached. Further, in this case, while the trial judge’s assessment of the situation persuaded her 

to sua sponte declare a mistrial, she should have consulted with the remaining prosecutor to see 

if he was able to try the case or whether he could try the case with further assistance from other 

experienced assistants in the State’s Attorney’s office. The judge could also have consulted 

with the parties about suspending the proceedings until assistant State’s Attorney Tharp was 

able to resume her duties. Instead, there was a second trial and an appeal on an avoidable issue, 

and defendant was incarcerated while awaiting retrial. 

¶ 54 4. The Dissent

¶ 55 We note the dissent fails to cite a single case to support its theory swearing some but not all 

of the jurors constitutes empanelment of a jury. In fact, every case uncovered dealing with this 

issue holds the opposite. While we recognize the importance of a defendant having his case 

tried by a particular jury, there was no “particular jury” yet chosen in this case. The dissent 
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promotes the idea a bright line is needed. However, the bright line already exists. It occurs once 

the entire jury is empaneled and sworn. 

¶ 56 B. Other-Crimes Evidence 

¶ 57 Defendant argues his prior burglary conviction was improperly admitted as evidence of his 

intent and knowledge. Defendant contends his prior conviction was used as improper 

propensity evidence where the State failed to introduce any other evidence of his intent to 

commit attempt (residential burglary). We disagree. 

¶ 58 Other-crimes evidence shows “a crime took place and that the defendant committed it or 

participated in its commission.” People v. Pikes, 2013 IL 115171, ¶ 15, 998 N.E.2d 1247. 

Other-crimes evidence is inadmissible to show a defendant’s propensity to commit crime. Id.

¶ 16; Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). However, “ ‘[i]t is well settled under the common 

law that evidence of other crimes is admissible if relevant for any other purpose than to show a 

defendant’s propensity to commit crimes.’ ” People v. Patterson, 2013 IL App (4th) 120287, 

¶ 58, 2 N.E.3d 642 (quoting People v. Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d 1119). 

Other purposes include “proof of motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). The 

admissibility of evidence rests within the sound discretion of the trial court, and the court’s 

decision will not be disturbed absent an abuse of that discretion. Pikes, 2013 IL 115171, ¶ 12, 

998 N.E.2d 1247. 

¶ 59 In this case, the State presented a single prior residential burglary conviction for the limited 

purpose of showing knowledge and intent. The trial court specifically stated during the 

proceedings the prior conviction was received on the issue of defendant’s intent and 

knowledge and may be considered by the jury only for that limited purpose. In addition, the 

State’s argument was limited to telling the jury the prior conviction showed defendant’s intent 

to commit a theft in Morgan’s apartment. Finally, the jury was properly instructed to limit its 

consideration of the prior conviction to the issue of knowledge and intent. While defendant 

argues the State failed to introduce any other evidence to show his intent, the jury was entitled 

to infer defendant’s intent to commit residential burglary from his conduct. See People v. 

Lattimore, 2011 IL App (1st) 093238, ¶ 44, 955 N.E.2d 1244 (intent may be inferred from the 

defendant’s conduct surrounding the act and from the act itself).

¶ 60 Both Alexander and Roberts testified they observed defendant climb onto the air 

conditioning unit with a flat pry bar and attempt to open the apartment window. Alexander 

testified he followed defendant from the time he saw him trying to open the window until 

defendant was stopped by police. According to Alexander’s testimony, defendant recklessly 

sped away from the apartment complex through the grass without turning on his headlights. 

After the police stopped the truck, they discovered a flat pry bar inside. Thus, even assuming, 

arguendo, the other-crimes evidence was improperly admitted, the result would not change, as 

the evidence against defendant was overwhelming. See People v. Hall, 194 Ill. 2d 305, 339, 

743 N.E.2d 521, 541 (2000) (“Although the erroneous admission of other-crimes evidence 

ordinarily calls for reversal, the evidence must have been a material factor in the defendant’s 

conviction such that, without the evidence, the verdict likely would have been different.”). 

Accordingly, defendant’s argument the trial court erred in admitting the other-crimes evidence 

fails. 
- 11 - 

¶ 61 C. Defendant’s Sentencing Claims

¶ 62 Defendant next argues the trial court erred in sentencing where (1) it “made findings which 

defy the record,” (2) it failed to adequately consider the evidence presented in mitigation, and 

(3) his six-year sentence for possession of burglary tools violates the prohibition against 

imposing an extended-term sentence on a lesser class felony offense. 

¶ 63 “A reviewing court gives substantial deference to the trial court’s sentencing decision 

because the trial judge, having observed the defendant and the proceedings, is in a much better 

position to consider factors such as the defendant’s credibility, demeanor, moral character, 

mentality, environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36, 959 N.E.2d 

656. Because a trial court has broad discretion in imposing a sentence, this court will not 

overturn the sentence absent an abuse of discretion. People v. Chester, 409 Ill. App. 3d 442, 

450, 949 N.E.2d 1111, 1118-19 (2011). “A sentence will be deemed an abuse of discretion 

where the sentence is ‘greatly at variance with the spirit and purpose of the law, or manifestly 

disproportionate to the nature of the offense.’ ” People v. Alexander, 239 Ill. 2d 205, 212, 940 

N.E.2d 1062, 1066 (2010) (quoting People v. Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 629 

(2000)). 

¶ 64 1. Sentencing Factors

¶ 65 Defendant argues the trial court erred by discounting the impact incarceration would have 

on his family when it found others would step up to fill the void. However, the trial court did 

not solely base its sentencing decision on that statement. In sentencing defendant, the court 

stated, in relevant part, the following: 

“I have read the letters and I agree with [the State] that having—being in a situation 

where there’s an elderly parent involved, the void that will be created by you going to 

prison will be filled by somebody. There are people out there. They may appreciate the 

fact that you’re doing it for them, but there are people out there that will take care of 

your loved ones. 

What I always find interesting in these situations when people say it’s not for him, 

it’s for the people he is taking care of *** is in looking at your [presentence 

investigation report [(PSI)] if, in fact, the reason why you turned to criminal behavior 

was in response to losing your father at 16 or 17, and now you’re asking you to be given 

a lighter sentence because you want to help your mother. 

 Did you help your mother at 17 by getting arrested, at 18 by getting arrested twice, 

[at] 19 getting arrested once? Did you help your mother when you were sent to Boot 

Camp or the Department of Corrections? Do you think all those things—and this is not 

an actual question—do you think all those things helped your mother? Did you help 

your mother at any of these times? No, you did not because you were putting your 

wants before her needs. So that argument is a wash, doesn’t work for me.” 

¶ 66 On review, we are not to focus on a few words or sentences of the sentencing court but, 

rather, should consider the record as a whole. See People v. Andrews, 2013 IL App (1st) 

121623, ¶ 15, 2 N.E.3d 1137. Indeed, our review of the entire sentencing hearing reveals the 

trial court did not base its sentencing decision on speculation or mistaken beliefs. Instead, the 

record shows the trial court considered the factors in aggravation and mitigation and the PSI 

and based defendant’s sentence on his extensive criminal history, as well as the danger he 
- 12 - 

presented to the community. The remarks cited by defendant show the trial court was simply 

responding to defense counsel’s argument defendant should receive a lesser sentence because 

he took care of his mother. The trial court, noting the number of letters it considered in 

mitigation from family members, felt the fact he helped his mother did not outweigh the 

severity of defendant’s actions and criminal record such that he should receive a lesser 

sentence. The court’s comments were entirely appropriate in the context of the arguments 

made at sentencing. 

¶ 67 Defendant similarly contends the trial court erred when it found the offenses were not 

related to defendant’s drug addiction. However, the trial court made no such finding. Instead, it 

merely addressed defense counsel’s argument defendant’s drug use should be considered in 

sentencing. Defendant also discussed his drug use in his letter, which was considered by the 

court in mitigation. Notably, however, defendant states in that letter, “the 2009 residential 

burglary was the only time [he] allowed [his] addiction to heroin to influence [him] to commit 

an offense of that nature, and severity, and [it] remains the only time to this day.” 

¶ 68 In addressing the argument at sentencing, the trial court stated, in relevant part, the 

following: 

“There is a very, very scary pattern that seems to have escalated from when you 

first started this. *** 

 I have to look at what has happened. I have to look at your history. I have to look at 

this case, and I believe without hesitation that you’re a danger to this community. I 

believe that you have a very, very serious problem and that you have not accepted that. 

 Drugs may be an issue with you. I don’t think drugs are your problem. I’m not a 

doctor. Hopefully you will see one when you are in prison. I don’t know, but you’ve 

got some serious problems when it comes to knowing boundaries, and there is—if you 

say it’s because of drugs, maybe the drugs caused you to forget where those boundaries 

are. I’m not sure, but you have got a serious problem.

And I tell you what, you’re somewhat lucky that you haven’t been killed in the 

process of doing this because that’s absolutely a possibility for you. [There are] a whole 

lot of people that are addicted to drugs that don’t do the things you’re doing, so I don’t 

buy that either. 

 You can[ ]not seem to follow the rules. [You’ve] successfully completed Boot 

Camp, but after you got out you broke the law again, so that’s really not successful as 

far as I’m concerned. Your record is replete with reasons to not give you a shorter 

sentence, and I’m not going to.” 

¶ 69 It is clear from our review of the entire sentencing hearing, the trial court was stating its 

belief drugs may or may not have been a factor while rejecting drug use as an outright excuse 

for defendant’s behavior. The court’s other statements at sentencing make it clear it did not 

base its sentencing decision on the drug-use issue. Accordingly, defendant’s argument in this 

regard fails. 

¶ 70 Finally, defendant maintains the trial court erred in failing to adequately consider the 

evidence presented in mitigation. As evidence of his belief, defendant cites the fact his 10-year 

sentence for attempt (residential burglary) was “far closer to the maximum allowable 

sentence.”
- 13 - 

¶ 71 Upon reviewing the record, however, we find the trial court stated it considered the 

evidence presented in mitigation and aggravation. “[T]he reviewing court must not substitute 

its judgment for that of the trial court merely because it would have weighed these factors 

differently.” Stacey, 193 Ill. 2d at 209, 737 N.E.2d at 629. The court was presented with 

defendant’s PSI, a number of letters from family members, and a letter from defendant. A trial 

court is presumed to have considered any evidence in mitigation before it. People v. Partin, 

156 Ill. App. 3d 365, 373, 509 N.E.2d 662, 666 (1987). Moreover, there is no indication from 

the record the court failed to consider the evidence presented in mitigation. 

¶ 72 Here, defendant was eligible for a maximum extended term of 14 years in prison. See 730 

ILCS 5/5-4.5-35(a) (West 2012). The trial court weighed the factors in aggravation and 

mitigation and fashioned a 10-year sentence. This sentence was clearly within the guidelines 

and neither at variance with the spirit and purpose of the law, nor manifestly disproportionate 

to the offense. Stacey, 193 Ill. 2d at 210, 737 N.E.2d at 629. Finally, while defendant may have 

shown some rehabilitative potential, such potential “ ‘is not entitled to greater weight than the 

seriousness of the offense.’ ” Alexander, 239 Ill. 2d at 214, 940 N.E.2d at 1067 (quoting 

People v. Coleman, 166 Ill. 2d 247, 261, 652 N.E.2d 322, 329 (1995)). Accordingly, the court 

did not abuse its discretion in sentencing defendant to an extended term of 10 years in prison 

for his attempt (residential burglary) conviction. 

¶ 73 2. Extended-Term Sentence

¶ 74 Defendant also argues the trial court erred in imposing a six-year extended-term sentence 

for the Class 4 felony of possession of burglary tools. Defendant contends that six-year 

sentence violates the prohibition against imposing an extended-term sentence on a lesser class 

felony offense. Defendant maintains because he was also convicted of residential burglary, 

which is a Class 2 felony offense, he was ineligible for an extended sentence on the possession 

of burglary tools conviction. 

¶ 75 The State argues defendant has forfeited review of the issue because he failed to raise it in 

the trial court. In reply, defendant urges this court’s review of the issue under the plain-error 

doctrine. See supra ¶ 34. The State concedes, absent forfeiture, the trial court erred and the 

sentence should be modified to a three-year term. As stated above, before we reach the issue of 

plain error, we first determine whether any error occurred. See Lewis, 234 Ill. 2d at 43, 912 

N.E.2d at 1227.

¶ 76 A defendant convicted of multiple offenses of differing classes may be sentenced to an 

extended-term sentence pursuant to section 5-8-2(a) of the Unified Code of Corrections (730 

ILCS 5/5-8-2(a) (West 2012)) only on those offenses within the most serious class. People v. 

Jordan, 103 Ill. 2d 192, 205-06, 469 N.E.2d 569, 575 (1984). “[W]hen a defendant has been 

convicted of multiple offenses of differing classes, an extended-term sentence may be imposed 

only on the conviction within the most serious class.” People v. Thompson, 209 Ill. 2d 19, 23, 

805 N.E.2d 1200, 1201 (2004). An exception allowing the imposition of extended-term 

sentences on differing class offenses exists if the offenses arise from unrelated courses of 

conduct in which there was a substantial change in the nature of the defendant’s criminal 

objective. People v. Bell, 196 Ill. 2d 343, 354, 751 N.E.2d 1143, 1149 (2001). 

¶ 77 In this case, the State did not argue and the trial court did not find the charges arose from 

unrelated conduct. Indeed, the record indicates both charges originated from a single course of 

conduct. Thus, the trial court should not have sentenced defendant to an extended, six-year 
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term for the Class 4 offense of possession of burglary tools as that offense was not the most 

serious conviction. The most serious conviction was the Class 2 offense of attempt (residential 

burglary). The court was only statutorily authorized to impose an extended term on the 

conviction with the most serious class. Jordan, 103 Ill. 2d at 205-06, 469 N.E.2d at 575; 730 

ILCS 5/5-8-2(a) (West 2012). Imposing an extended term on the Class 4 possession of 

burglary tools conviction was therefore error. 

¶ 78 Having found error, we turn now to whether either prong of the plain-error doctrine has 

been satisfied. Sargent, 239 Ill. 2d at 189-90, 940 N.E.2d at 1059. Here, “the [trial] court’s 

misapplication of the law amounted to plain error because it affected defendant’s fundamental 

right to liberty.” People v. Smith, 2016 IL App (1st) 140496, ¶ 15, 51 N.E.3d 21. Accordingly, 

we vacate that sentence and remand for resentencing. See id.

¶ 79 D. Defendant’s Krankel Claim 

¶ 80 Defendant argues the trial court erred by not inquiring into his posttrial pro se complaints 

of ineffective assistance of trial counsel. Specifically, defendant claims he was entitled to some 

inquiry by the court into the allegations contained in his posttrial letter addressed to the 

“Appeals Clerk.” Defendant argues the court’s failure in this regard violated Krankel and its 

progeny. We disagree. 

¶ 81 Pursuant to Krankel, when a defendant raises a pro se posttrial claim of ineffective 

assistance of counsel, “ ‘the trial court should first examine the factual basis of the defendant’s 

claim. If the trial court determines that the claim lacks merit or pertains only to matters of trial 

strategy, then the court need not appoint new counsel and may deny the pro se motion. 

However, if the allegations show possible neglect of the case, new counsel should be 

appointed.’ ” People v. Jolly, 2014 IL 117142, ¶ 29, 25 N.E.3d 1127 (quoting People v. Moore, 

207 Ill. 2d 68, 77-78, 797 N.E.2d 631, 637 (2003)). 

¶ 82 We acknowledge, for Krankel purposes, a pro se defendant is not required to do any more 

than bring his ineffective-assistance claim to the trial court’s attention. Moore, 207 Ill. 2d at 79, 

797 N.E.2d at 638. However, that was not done in this case. While the letter was sent to the 

circuit clerk’s office, it was not addressed to the trial court. Instead, the envelope was 

addressed to the “Appeals Clerk.” In addition to the letter, the envelope contained a notice of 

appeal, a copy of his previously filed posttrial motion, and various other documents. The clerk 

stamped the documents, including the letter, which are part of the record on appeal. The letter 

itself was addressed “To whom it may concern.” In the body of the letter, defendant stated he 

wanted to “inform the Appellate Court and anyone else it may concern” of errors he believed 

were made during his trial. Neither his trial counsel nor the State received copies of that letter. 

Indeed, the trial court, defendant’s trial counsel, and the State were unaware of the mailing. 

The record does not reflect any follow-up with the trial court on defendant’s part with regard to 

the letter or the claims therein. Thus, defendant did not bring the letter containing his 

ineffective-assistance claims to the court’s attention.

¶ 83 Moreover, the mailing was received by the clerk’s office on March 20, 2014. Defendant 

made no mention of his ineffective-assistance claims to the trial court despite appearing in 

person two days before, on March 18, 2014. See People v. Lewis, 165 Ill. App. 3d 97, 109, 518 

N.E.2d 741, 749 (1988) (finding the defendant forfeited his posttrial ineffective-assistance 

claims where the trial court, defendant’s counsel, and the State were all unaware of defendant’s 

letter and the defendant did not himself raise the claims despite appearing personally in court 
- 15 - 

after sending the letter). While a pro se defendant is not required to do any more than bring his 

claim to the trial court’s attention, in this case defendant failed to do so. Accordingly, we find 

defendant has forfeited his pro se ineffective-assistance-of-counsel claim. Thus, he is not 

entitled to remand on that issue. 

¶ 84 III. CONCLUSION 

¶ 85 For the reasons stated, we vacate the trial court’s imposition of an extended-term sentence 

on defendant’s possession of burglary tools conviction and remand for resentencing consistent 

with this opinion. We otherwise affirm the trial court’s judgment. As part of our judgment, we 

award the State its $75 statutory assessment against defendant as costs of this appeal. 

¶ 86 Affirmed in part and vacated in part; cause remanded with directions. 

¶ 87 JUSTICE STEIGMANN, dissenting. 

¶ 88 Although I agree with most of what my distinguished fellow panelists in the majority have 

written, I disagree with their ultimate conclusion that defendant was not placed in jeopardy 

when the trial court swore in eight jurors and then declared a mistrial in the absence of any 

necessity for doing so. Accordingly, I respectfully dissent. 

¶ 89 The majority correctly quotes Professor LaFave’s treatise (supra ¶ 42), but with all due 

respect to Professor LaFave and his preeminent position as a scholar of criminal law and 

procedure, I conclude his treatise overstates the holding in Crist. In his treatise, Professor 

LaFave writes the following: “In Crist, the [Supreme] Court held that the point at which 

jeopardy attaches is the moment at which the entire jury has been selected and has taken the 

oath required for service at trial.” 6 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin 

S. Kerr, Criminal Procedure § 25.1(d) (4th ed. 2015). Professor LaFave erred in his analysis of 

Crist when he wrote that, supposedly according to that case, jeopardy attaches the moment 

“the entire jury has been selected” and sworn. (Emphasis added.) Id. In fact, not only does the 

word entire not appear in Crist, but the facts of that case do not at all support the notion that the 

entire jury must be selected. 

¶ 90 As Justice Stewart explained in the first paragraph of Crist, “The precise issue is whether 

the federal rule governing the time when jeopardy attaches in a jury trial is binding on Montana 

through the Fourteenth Amendment. The federal rule is that jeopardy attaches when the jury is 

empaneled and sworn; a Montana statute provides that jeopardy does not attach until the first 

witness is sworn.” Crist, 437 U.S. at 29. Ultimately, the Supreme Court concluded, “[W]e 

explicitly hold *** [t]he federal rule that jeopardy attaches when the jury is empaneled and 

sworn is an integral part of the constitutional guarantee against double jeopardy.” Id. at 38. 

Interestingly, for purposes of the present case, the Court earlier in that case wrote the 

following: 

“The reason for holding that jeopardy attaches when the jury is empaneled and 

sworn lies in the need to protect the interest of an accused in retaining a chosen jury. 

*** 

*** [T]he defendant’s ‘valued right to have his trial completed by a particular 

tribunal’ is now within the protection of the constitutional guarantee against double 

jeopardy, since it is that ‘right’ that lies at the foundation of the federal rule that 
- 16 - 

jeopardy attaches when the jury is empaneled and sworn. [Citations.]” (Emphasis 

added.) Id. at 35-36. 

That statement suggests that an accused’s interest in retaining as a chosen jury those jurors who 

have been empaneled and sworn would apply just as much to the 8 jurors who were empaneled 

and sworn in the present case as to all 12 jurors who ultimately might have been empaneled 

and sworn. 

¶ 91 The majority is correct that the decision of the Appellate Court, Fifth District, in Boaz is 

consistent with its conclusion in this case, but I do not believe that Boaz should be followed. 

The peculiar circumstances in Boaz concerning jury selection were described in that case as 

follows: 

“[P]rospective jurors were assembled, voir dire was conducted, and the State’s 

Attorney, defendant’s counsel and the circuit judge recessed to chambers to select 12 

jurors and one alternate. Before recessing, however, the judge told the prospective 

jurors that they were free to break for lunch. After lunch, the names of the persons 

selected were announced. Eleven jurors and one alternate were sworn. The twelfth 

juror, whose name had been announced, had not yet returned from lunch, and so had 

not yet been sworn. Before the twelfth juror returned, defendant moved to confine the 

State to prove the allegations as specified in the bill of particulars, namely[,] that the 

offense occurred on March 30, 1989, not March 5, 1989. The State moved to amend, 

but defendant argued that the State could not amend because the trial had already 

begun. [Citation.] The circuit court ruled that since only 11 jurors had been sworn, the 

twelfth having not yet returned from lunch, the trial had not yet begun, and the court 

granted the State leave to amend. Defendant moved for a mistrial. The circuit court 

granted it but ruled that jeopardy had not attached and that defendant was subject to 

retrial.” Boaz, 222 Ill. App. 3d at 364-65, 583 N.E.2d at 715. 

¶ 92 On these facts, the Fifth District concluded (with one judge dissenting) that jeopardy 

“would not have attached until the twelfth juror had been sworn.” Id. at 365, 583 N.E.2d at 

715. However, in support of this conclusion, the Fifth District cited only Crist, which, as noted, 

says nothing at all about swearing in the entire jury before jeopardy would attach. Id. 

¶ 93 This court should decline to follow Boaz for the following reasons: (1) the double jeopardy 

clause is serious business, appearing in the constitution itself, and is not merely some inference 

the courts have drawn from constitutional language; (2) a clear, bright line should govern the 

courts’ handling of this important constitutional right; (3) the United States Supreme Court has 

held that once a jury is empaneled and sworn, jeopardy attaches; (4) the United States Supreme 

Court has never said—nor is there any reason for it to say—that empaneling and swearing less 

than an entire jury somehow no longer causes jeopardy to attach; (5) the language in Crist

(cited earlier in this dissent) suggests empaneling and swearing a partial jury implicates a 

defendant’s interests sufficiently for jeopardy to attach; and (6) what occurred in this case was 

entirely unnecessary because a trial court is never under any obligation to empanel and swear a 

partial jury, as happened here. I agree with the majority that a court’s doing so is entirely 

ill-advised and unnecessary. 

¶ 94 My only other disagreement with the majority is its conclusion that the plain-error doctrine 

applies in this case regarding the trial court’s imposing an extended-term sentence on the less 

serious offense of possession of burglary tools, a Class 4 felony. Supra ¶ 78. The majority is 

correct that the trial court erred by doing so because the court was statutorily authorized to 
- 17 - 

impose an extended-term sentence only on the conviction of the most serious offense, which in 

this case was defendant’s conviction of attempt (residential burglary), a Class 2 felony. The 

10-year sentence the court imposed upon that conviction was an extended term. However, the 

court’s error regarding the less serious offense did not constitute plain error.

¶ 95 Although the majority concludes that the trial court’s imposition of an extended-term 

sentence upon defendant for his conviction of the less serious offense “ ‘amounted to plain 

error because it affected defendant’s fundamental right to liberty’ ” (supra ¶ 78 (quoting Smith, 

2016 IL App (1st) 140496, ¶ 15, 51 N.E.3d 21)), that conclusion is demonstrably not correct. 

No matter what the trial court does on remand for resentencing on the less serious offense, 

defendant’s “fundamental right to liberty” is not at issue. Indeed, it cannot even be affected. 

That is because the majority affirmed defendant’s 10-year sentence, which will stand 

regardless of any sentence on the less serious offense the court imposes on remand.