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1-99-1631 

First Division
March 30, 2001

JUSTICE COHEN delivered the opinion of the court:

Defendant Larry McDonald was indicted on two counts of theClass X felony of armed robbery and one count of the Class 3 felony ofaggravated battery. 720 ILCS 5/18-2(a)(2) (West Supp. 1999); 720 ILCS5/12-4(b)(10) (West 1998). The State nol-prossed the aggravated batterycharge prior to trial. Following a bench trial, the trial court convictedMcDonald of two counts of the Class 1 felony of aggravated robbery. 720 ILCS5/18-5 (West 1998). Based on McDonald's prior criminal record, the trial courtsentenced McDonald to an extended prison term of 28 years. 730 ILCS5/5-5-3.2(b)(1), 5-8-2(a)(3) (West 1998). McDonald's posttrial motion forreduction of sentence was denied as untimely.

On appeal, McDonald contends that the trial court violatedhis right to due process of law by convicting him of aggravated robbery whereaggravated robbery was neither a charged offense nor sufficiently alleged in theindictment against him. McDonald urges: (1) that we review this issue as amatter of plain error; (2) that we reduce his convictions to the Class 2 felonyof robbery (720 ILCS 5/18-1 (West 1998)); and (3) that we remand the cause for anew sentencing hearing.

On November 13, 2000, we issued an order in this matterpursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23). McDonald petitioned forrehearing. The order of November 13, 2000, was subsequently withdrawn to allowconsideration of the petition for rehearing, as well as McDonald's motion forleave to cite additional authority, both of which are taken with the case. Wehereby grant McDonald's motion for leave to cite additional authority and denyhis petition for rehearing.

1. Sufficiency of Charging Instrument

In requesting that we review this matter under principles ofplain error, McDonald concedes that because he failed to challenge hisindictment either at trial or in a posttrial motion, he has otherwise waived theerror. People v. Nathan, 282 Ill. App. 3d 608, 610 (1996). Plain error is

"marked by 'fundamental [un]fairness' [which] occurs only in situations which 'reveal breakdowns in the adversary system,' as distinguished from 'typical trial mistakes.' [Citation.] Put differently, what must be affected by the asserted error must be something 'fundamental to the integrity of the judicial process.' [Citation.] Essentially, the fairness of the trial must be undermined." People v. Keene, 169 Ill. 2d 1, 17 (1995).

 

Under the circumstances before us, McDonald's convictions areindeed the result of plain error and must be reversed.

It is axiomatic that no one may be convicted of an offensenot expressly charged unless that offense is a lesser included offense of thatwhich is expressly charged. People v. Hamilton, 179 Ill. 2d 319,323 (1997); People v. Novak, 163 Ill. 2d 93, 105 (1994); People v.Jones, 293 Ill. App. 3d 119, 127 (1997), leave to appeal denied, 176Ill. 2d 584 (1998). The trial court convicted McDonald of two counts ofaggravated robbery, an uncharged Class 1 felony. 720 ILCS 5/18-5 (West 1998).These convictions may only be upheld if we find aggravated robbery to be alesser included offense of the charged offense of armed robbery. Hamilton,179 Ill. 2d at 323; Jones, 293 Ill. App. 3d at 127. In Jones, weaddressed the question of whether aggravated robbery is a lesser includedoffense of armed robbery in the context of whether the defendant was entitled toa lesser included offense jury instruction:

"In considering whether a crime is a lesser included offense of another, Illinois follows a 'charging instrument' analysis. [Citation.] Under this approach, an offense is determined to be a lesser included offense, not by analyzing the statutory elements of the crimes involved and the possible theoretical ways in which [the] charged offense and alleged lesser included offense could be committed, but rather by comparing the charging instrument to the alleged lesser included offense to see whether the charging instrument sufficiently describes the 'foundation' or 'main outline' of that offense. [Citation.]" Jones, 293 Ill. App. 3d at 128, citing Novak, 163 Ill. 2d at 107, 112.

 

Therefore, aggravated robbery may be found to be alesser included offense of armed robbery in any given prosecution: the preciselanguage of the charging instrument is determinative. In order to supportMcDonald's aggravated robbery convictions, the indictment against him must befound to sufficiently allege the "foundation" or "mainoutline" of the offense of aggravated robbery. Jones, 293 Ill. App.3d at 128.

Armed robbery and aggravated robbery require differentelements of proof. The elements of the offenses differ in that armed robberyrequires that a defendant "carr[y] on or about his or her person or [be]otherwise armed with a firearm," while aggravated robbery requires that adefendant "indicat[e] verbally or by his or her actions to the victim thathe or she is presently armed with a firearm or other dangerous weapon." 720ILCS 5/18-2(a)(2) (West Supp. 1999); 720 ILCS 5/18-5(a) (West 1998).

The indictment in Jones alleged armed robbery asfollows:

" 'Robert Jones committed the offense of armed robbery in that he, by the use of force or by threatening the imminent use of force while armed with a dangerous weapon, to wit: a handgun[,] took United States currency from the person or presence of Elaine Ramos *** .' " Jones, 293 Ill. App. 3d at 129.

 

We held that "[a]lthough this indictment does allege theuse of a firearm, an allegation sufficient to meet part of the third element ofthe aggravated robbery statute, it clearly does not allege that the gun was everdisplayed to Ramos or that the defendant implied to Ramos that he possessed agun." Jones, 293 Ill. App. 3d at 129. We found such an allegation tobe a "necessary 'foundation' or 'main element' " of the aggravatedrobbery charge, and, following the reasoning of our supreme court in Novak,held that such an allegation could not be inferred from the remainingallegations of the indictment. Jones, 293 Ill. App. 3d at 129; Novak,163 Ill. 2d at 114. We therefore affirmed the trial court's refusal to tenderthe defendant's requested jury instruction on aggravated robbery. Jones,293 Ill. App. 3d at 129.

McDonald was charged with two counts of armed robbery bymeans of the following indictment:

"LAWRENCE MCDONALD committed the offense of ARMED ROBBERY in that HE, BY THE USE OF FORCE OR BY THREATENING THE IMMINENT USE OF FORCE WHILE ARMED WITH A DANGEROUS WEAPON, TO WIT: A GUN[,] TOOK UNITED STATES CURRENCY FROM THE PERSON OR PRESENCE OF ROSEMARY NAPIER * * *."

 

McDonald's second armed robbery indictment was identical tothe first, except that the name "DALE GRASS" was substituted for thatof "ROSEMARY NAPIER." Aside from the names, the sole differencebetween the indictments against McDonald and the indictment we considered in Jonesis that McDonald's indictment uses the word "gun," as opposed tothe use of the word "handgun" in Jones. We see no reason toalter our analysis: under Jones, the indictment against McDonald did notsufficiently allege the "foundation" or "main outline" ofthe offense of aggravated robbery