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People v. Boand9/30/2005
alleged a death caused by the ingestion of a controlled substance knowingly delivered by defendant. Therefore, the delivery causing the death is the act for which defendant was charged with drug-induced homicide.
In contrast, the involuntary manslaughter charge alleged that defendant recklessly "performed an act likely to cause death or great bodily harm" in that he "failed" to request emergency medical assistance. Although the parties do not raise the issue, we note that the involuntary manslaughter charge incorrectly alleges an omission rather than an affirmative act. Moreover, the charge fails to even mention an unintentional death. Therefore, the charging instrument is deficient. See 720 ILCS 5/9--3(a) (West 2004) (" person who unintentionally kills an individual * commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly" (emphasis added)). Defendant has waived the issue by failing to object. See People v. Davis, 352 Ill. App. 3d 570, 573 (2004). We note that, on remand, defendant may be recharged with involuntary manslaughter as long as the charge mentions the unintentional death and alleges that defendant's failure to request emergency assistance was reckless because his knowing delivery of the controlled substance caused Levin's overdose.
If the involuntary-manslaughter charge is so modified on remand and defendant is found guilty of drug-induced homicide and involuntary manslaughter, the one-act, one-crime rule would preclude multiple convictions because the identical act of knowingly delivering the controlled substance causing the death would be a single act on which the two convictions could not be entered. See Rodriguez, 169 Ill. 2d at 186.
H. Consecutive Sentences
We also address whether a prison term imposed for criminal sexual assault must be served consecutively to another prison term imposed for drug-induced homicide or involuntary manslaughter. The State argues that such consecutive sentences are mandated by section 5--8--4(a)(ii) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5--8--4(a)(ii) (West 2004)). Rather than replying to the merits of the State's argument, defendant argues that the inevitable reversal of his convictions renders the sentencing issue moot. We address the issue because it might arise on remand.
Supreme Court Rule 604(a)(1) provides that the State may appeal only from an order or judgment in a criminal case that results in dismissal of a charge; "arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; suppressing evidence; decertifying a prosecution as a capital case *; or finding that the defendant is mentally retarded." Official Reports Advance Sheet No. 4 (February 16, 2005), R. 604(a)(1), eff. February 1, 2005. Ordering the circuit court to impose consecutive sentences could result in a prohibited expansion of the State's limited right to appeal in a criminal case. See People v. Robinson, 267 Ill. App. 3d 900, 906 (1994). However, in People v. Arna, 168 Ill. 2d 107, 113 (1995), the supreme court held that " sentence which does not conform to a statutory requirement is void," and that the "appellate court had the authority to correct it at any time." The State has raised the issue of mandatory sentencing without filing a cross-appeal, but we may consider the issue if defendant's sentence is void.
Section 5--8--4(a)(ii) of the Code of Corrections provides in relevant part as follows:
"(a) When multiple sentences of imprisonment are imposed on a defendant a
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