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FIFTH DIVISION
November 30, 2001

No. 1-99-1609

JUSTICE QUINN delivered the opinion of the court:

Defendant, David Sergeant, was charged by indictment withmultiple counts of murder, home invasion and armed robbery. Following a jury trial, where defendant and Dedric Hentz (co-defendant) were simultaneously tried by separate juries, defendantwas found guilty of murder, home invasion and armed robbery.Defendant was sentenced to a term of 60 years' imprisonment formurder, 30 years for home invasion to run concurrently and 30 yearsfor armed robbery to run consecutively. Defendant now timelyappeals.

On appeal, defendant argues that; (1) the trial court admittedinadmissible hearsay; (2) he was denied effective assistance ofcounsel; and (3) his sentence for armed robbery should be modifiedto run concurrently because the armed robbery did not result insevere bodily injury, or, alternatively, because it violatesApprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d435 (2000).

For the following reasons, we affirm defendant's convictionand affirm his sentence for first degree murder, modify hissentence for armed robbery to run concurrently, and remand to thetrial court to enter a consecutive sentence on the home invasionconviction.

I. BACKGROUND

At the defendant's trial, Assistant State's Attorney MikeRogers testified that in October of 1995, he became involved in theinvestigation of the homicide of Scott Tisdale. Rogers stated thatupon belief that defendant was involved in this case, he went tothe Indiana Department of Corrections' Regional Diagnostic Centerin Plainfield, Indiana, on October 30, 1996, to interview thedefendant. Rogers testified that he apprized defendant of hisMiranda rights. Rogers testified that defendant agreed to talk tohim and he wrote out defendant's statement. The statement includedthe following information:

Defendant explained that one of his co-defendantsintroduced him to Loracio Jennings. Defendant statedthat Jennings was the head of a home invasion crew thathe intended to join. Defendant was informed thateverything that he and the crew took out of a "lick" or"job" was to be brought to Jennings. Defendant statedthat on October 6, 1995 the crew met at Jenningsapartment and planned two "licks" for that evening. Thefirst "lick" was supposed to be at 73rd and South ShoreDrive, the second was planned for 93rd and Jeffrey. Defendant stated that he was told that at the second"lick" he or another man would knock on the door andpretend they were buying dope, and then just go in witha Tech 9 weapon, while two of the co-defendants would tiethe people up. Defendant stated that after arriving atthe first "lick", the crew was unable to get into theapartment and it was called off. The crew then went to93rd and Jeffrey. When defendant and the two men went tothe door, the victim opened the door and defendant backedhim into the house with a Tech 9. The victim was told toget down on the ground and Joiner tied him up. At thispoint defendant stated that an old man came up the stairsand Joiner tied him up as well. Defendant stated that heguarded the two men while the others searched the house. Defendant stated that Hentz then took the Tech 9 whiledefendant went to search the house. During his searchdefendant found a loaded pump shotgun under a bed. Defendant stated that he ran downstairs and out to theback yard yelling "I found a gun, I found a gun". Atthis point defendant said he saw the victim and Hentz"tussling" over the Tech 9 so he hit the victim with thebutt part of the shotgun. Defendant said as theystruggled for the weapons, Hentz grabbed the shotgun andhe grabbed the Tech 9. Defendant stated that Hentz thenpoked the victim with the shotgun and the gun went offtwice. The victim grabbed his side. Defendant statedthat he and Hentz ran to the car and proceeded back toJennings apartment. Defendant got 10-15 bags of crackfor the job.

Rogers further testified that the defendant reviewed the statement,made corrections, initialed these corrections and signed thestatement. At the end of the statement defendant acknowledged thatinitially he had said he didn't know anything about "jobs" and"licks," but he figured that Jennings was going to "hang him out"and he did not want to "go down" alone.

Lori Bethany testified that during October 1995 she was thegirlfriend of Michael Perkins. She stated that on October 6, 1995,she and Perkins went to Loracio Jennings' apartment at around 6p.m. Bethany testified that the defendant, codefendant DedricHentz, Michael Joiner, Loracio Jennings and Jerry were all presentat the apartment that night. Bethany testified that Perkinsinstructed her to go into the kitchen with Jerry while Perkins,defendant, Hentz, Joiner and Jennings all went into Jennings'bedroom, where they remained for 15 minutes.

Bethany testified that when they left the apartment, she,Perkins and Jennings got into a Blazer while defendant, Hentz andJoiner got into a white Buick. The cars drove to around 77th or78th and South Shore Drive. She was instructed to wait in the carwhile the men all got out of the cars and went into the building. After 10 minutes, the men got back into the cars and proceeded to93rd and Jeffrey. Bethany testified during direct and cross-examination that she never inquired as to where they were going orwhy. When they arrived, the Buick pulled up next to the Blazer andJennings handed money to someone in that car. Bethany stated thatthe three men in the Buick exited the car and went toward 9320 S.Jeffrey. She did not actually see the men enter the house becausethe Blazer she was in went around the block. Bethany testifiedthat the Blazer parked one block away, where they could see thewhite Buick. Shortly after, Bethany heard two gunshots coming fromthe area of 93rd and Jeffrey. Bethany saw defendant, Hentz, andJoiner come running from an alley to the Buick. At that point theBlazer she was riding in began to drive away. Both cars returnedto Jennings' apartment.

At Jennings' apartment, Bethany was again instructed to gointo the kitchen while defendant, Jennings, Perkins, Joiner andHentz went into the bedroom and shut the door. After the menexited the bedroom, approximately 10 minutes later, they began tosmoke cocaine. When Bethany inquired as to where the drugs hadcome from, Hentz replied "from the move." Defendant was notpresent for this statement. Bethany testified that she understoodthis to mean "the move that just transpired." Bethany stated thatshe and Perkins then left Jennings' apartment and stayed at a motelfor the evening. On direct examination Bethany testified thatafter having a conversation with Perkins at the motel she believeda robbery had occurred at 9320 S. Jeffrey.

Bethany testified that the first time she spoke with thepolice was on the evening of October 10, 1995, when DetectivesWilliam Foster and Ed O'Boyle arrived at her house. Bethany statedPerkins had just pulled up to her house when the detectivesarrived. Bethany testified that she went to Area 2 with theofficers to tell them what she knew. The detectives also tookPerkins to Area 2. Bethany also stated that she accompanied theofficers to point out the location of Jennings' apartment at 68thand Clyde. On the way back from the apartment, Bethany saw Hentzwalking westbound on 67th Street and she pointed him out to theofficers.

Bethany was taken back to Area 2, where she provided a writtenstatement at approximately 5 p.m. on October 11, 1995. Bethanyremained at Area 2 until the morning of October 12, 1995, when shetestified before the grand jury. On cross-examination, Bethanyadmitted that during the month of October 1995 she was a frequentdrug user and Perkins was her drug supplier.

Adrienne Segovia, a forensic pathologist, testified that onOctober 7, 1995, she performed an autopsy on Scott Tisdale. Segovia concluded after her examination that Tisdale died as aresult of a close-range shotgun wound to the abdomen.

Detective William Foster testified that on October 6, 1995,at approximately 8 p.m., he received a call on his radio that a manwas shot at 9320 South Jeffrey and proceeded to the scene. While canvassing the neighborhood, Foster received the names Loracio Polkand Perkins from Larry Williams. Foster later learned that the twomen were Loracio Jennings and Michael Perkins. Foster testifiedthat he was unable to locate these men on the night of theincident.

Foster testified that on October 9, 1995, he learned thatPerkins had a girlfriend, Lori Bethany, who lived at 11717 LongwoodDrive. Late the next evening, Foster located Perkins and Bethanyat Bethany's residence and brought them both to Area 2. Later,Bethany accompanied Foster to point out Jennings' apartment. Foster testified that although they were unable to locate Jenningsthat night, Bethany pointed out Hentz on a sidewalk on 67th Street. At that point Hentz was taken into custody and Bethany was takenback to Area 2.

Finally, the State called James Tisdale. Tisdale testifiedthat on October 6, 1995, he lived at his home at 9320 S. Jeffreywith his son, Scott Tisdale. Tisdale stated that on that eveningat around 8 p.m. he was downstairs watching television in the lower"rec room" when he heard a commotion at the top of the stairs. Heheard a voice say that it was the police and to come upstairs. When Tisdale was at the stairs, he saw an arm holding a machinepistol. He walked up the stairs and was tied up and forced to lieon the floor. Tisdale stated that he saw his son also lying on thefloor. Tisdale admitted that it was dark and he could not see theface of the man with the machine pistol. Tisdale did state that hesaw a man standing over his son holding a bat and wearing a longdark coat. Tisdale identified the defendant in court as the manwith the bat.

Tisdale testified that after a few moments defendant went outof his sight, he heard people upstairs, then someone took his sonout of the room. Tisdale stated that someone came up behind himand took his gold chain from around his neck. He then heardsomeone yelling that they found a shotgun. He then heard the backdoor, which leads out to the garage, open. A few minutes laterTisdale heard gun-shots coming from the direction of the garage. He also heard his son grunt. After hearing people run out of thehouse, Tisdale untied himself and ran out the back door where hesaw his son lying face down on the sidewalk.

Tisdale testified that on October 25, 1996, he was shown aseries of photographs and he recognized one of the photographs asbeing that of the man who stood over his son with the bat. Tisdaleidentified defendant in court as the man in the photograph. Tisdale testified that on April 23, 1997, he went to Area 2 andviewed a lineup where he recognized the man who stood over his sonwith the bat. Tisdale identified defendant in court as the man hepicked out of the lineup.

Anthony Miles testified for the defense that he had known defendant for over 12 years. Miles stated that defendant wouldvisit and often stay at his home for a few days at a time to assisthim because he was disabled. Miles stated that on October 6, 1995,defendant came to stay with him at 66th and Ingleside. Milesstated that it was the middle of the night when defendant arrivedbut he did not know the exact time. Miles stated that defendantstayed a few days.

Defendant then took the stand. Defendant testified that onOctober 6, 1995, he went to Anthony Miles' house at around 6:30p.m. and stayed there all weekend. Defendant admitted that he wasconvicted of felonies in 1992 and 1996. Defendant furthertestified that on October 30, 1996, he was incarcerated at theRegional Diagnostic Center and that Assistant State's AttorneyRogers and two detectives came to see him there. Defendanttestified that the officers inquired about a shooting and he toldthem he did not know anything about it. He stated that while theofficers continued to question him, Rogers was writing something. Defendant testified that he continued to tell the police that hedidn't know anything. Defendant stated that Rogers told him thatif he helped finger Jennings for conspiracy nothing would happen tohim. On cross-examination defendant admitted to knowing Jennings,Hentz, Perkins and Joiner. Defendant denied ever hearing the term"lick" or "job." He admitted that he signed the statement butdenied having read it.

After closing arguments, the jury found defendant guilty ofthe first degree murder of Scott Tisdale, home invasion with ScottTisdale as the victim, home invasion with James Tisdale as thevictim, and the armed robbery of James Tisdale. The courtsentenced defendant to 60 years in prison for murder, 30 years for armed robbery to run consecutively and 30 years on the homeinvasion counts to run concurrently, which the court "merged."

II. ANALYSIS

A. HEARSAY

Defendant first argues that he was denied a fair trial wherethe court improperly allowed the hearsay testimony of Bethany. Specifically, defendant points to the following exchanges:

"Q: Now after you saw those individuals smoke their packets,did you ask any of them any questions about where they got thenarcotics?

A: Yes I did.

Q: Who did you ask?

A: I remember asking Dedric.

Q: And did Dedric provide a response?

A: He said they got it from a move.

Q: When he said move, what did you understand that to mean?

A: The move that just transpired."

And, later during the examination:

"Q: Did you have conversation [with Perkins], don't tellme what he said: Did you have a conversation?

A: I'm sorry. I had a conversation.

Q: After having the conversation, what did you believetranspired at that house?

A: I believed that a robbery had transpired at that house."

Defendant maintains that the elicited testimony was hearsay becauseit was offered to prove the State's theory that defendant wasinvolved in the home invasion.

Defendant failed to properly preserve this issue for appeal. We hold that the defendant has waived this issue as the defendantfailed to object to the comments at trial and the issue was notincluded in his posttrial motion. People v. Parker, 311 Ill. App.3d 80, 91, 724 N.E.2d 203 (1999), citing People v. Enoch, 122 Ill.2d 176, 187, 522 N.E.2d 1124 (1988). The waiver rule serves animportant purpose because a timely objection will allow the circuitcourt to correct any errors and "a party who fails to object cannotobtain the advantage of receiving a reversal by failing to act."People v. Reid, 136 Ill. 2d 27, 38, 554 N.E.2d 174 (1990).

Even if we considered defendant's argument that the statementswere improperly admitted hearsay, any error in this regard washarmless. "This court has previously stated that the admission ofhearsay is not reversible error if there is no reasonableprobability that the jury would have acquitted the defendant if thehearsay testimony had been excluded, such as where properlyadmitted evidence proves the same matter or there is overwhelmingevidence of the defendant's guilt." People v. Rodriguez, 291 Ill.App. 3d 55, 61, 684 N.E.2d 128 (1997).

The evidence in this case is overwhelming. Defendantconfessed to his involvement in the armed robbery and home invasionin a written statement. Lori Bethany testified to being with thedefendant at the address where the murder and armed robberyoccurred that evening. James Tisdale identified the defendant asone of the invaders from a photograph, in a lineup and in court. Defendant's apparent alibi witness testified that defendant came tohis house on October 6, 1995, but he could not remember at whattime. When defendant took the stand he testified that while hesigned and initialed every page of the statement he did not readany of it. Additionally, the evidence that defendant complains ofwas introduced to the jury through properly admitted evidence. Here, James Tisdale testified that an armed robbery occurred anddefendant confessed that there was an armed robbery. Therefore,even if the statements were improperly admitted, their effect onthe jury was minimal in light of the overwhelming evidencesupporting defendant's conviction.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant claims that he was denied effective assistance ofcounsel where counsel questioned the defendant about a felonyconviction after the trial court had barred its admission. Specifically, defendant maintains that after successfully moving tobar the admission of defendant's felony conviction in 1992, counselopened the door for the State to introduce a certified copy of thisconviction. Defendant alleges the following exchange betweendefense counsel and himself allowed the jury to doubt hiscredibility:

"Q. Now, sir, as you sit here today have you ever beenconvicted of a crime? A. Yes, I have. Q. And in 1992 were you convicted of a felony? A. Yes, I was. Q. 1994 were you convicted of a felony? A. No. Q. Strike that. 1994 were you convicted of a felony? A. That is the same one from 1992. That's the same case. Q. 1996 conviction for a felony? A. Yes. Q. Two convictions for felonies? A. Yes."

In reviewing a claim for ineffective assistance of counsel, wemust inquire whether defense counsel's performance was deficientand whether any deficiencies prejudiced defendant. Strickland v.Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.2052, 2064 (1984). Defense counsel's assistance was ineffective ifthe representation fell below an objective standard ofreasonableness and if there is a reasonable probability that theoutcome of the trial would have differed but for defense counsel'serrors. People v. McKenzie, 263 Ill. App. 3d 2d 716, 721, 635N.E.2d 903 (1994).

During the hearing on the motion in limine to bar thedefendant's prior convictions, the court stated:

"What I am going to do, State, is I will let in the 1994Possession of a Controlled Substance with intent todeliver. I will let in the 1996 simple robbery. I willpreclude the 1992 straight possession.

Now what I will do as well is I will let the Stateindicate that [in] 1992 you have been convicted of afelony without regard to the sentence nor the events."

Defendant maintains that this ruling limited the admission of the1992 conviction to allow only the fact that it was a conviction andtherefore it was objectively unreasonable for defense counsel toelicit testimony from the defendant regarding the 1992 conviction. We disagree.

It was a sound trial strategy for defense counsel to choose tofront the convictions. "[F]aced with the prospect that defendantwould be impeached with the prior conviction if he testified, itwas reasonable strategy to inform the jury 'up front' inanticipation of defendant's testimony. This is a common enoughstrategy, and one which would justify the introduction of the priorconviction." People v. Anderson, 272 Ill. App. 3d 566, 570, 653N.E.2d 395 (1995). Counsel merely posited to the defendant, "[I]n1992 were you convicted of a felony?" It was defendant himself,not defense counsel, who chose at this point, rather than admittingthat he had three separate felony convictions, to claim that heonly had two convictions. As the trial court stated when defensecounsel objected to the State's introduction of certified copies ofdefendant's separate 1992 and 1994 convictions in rebuttal:

"The defendant took the stand and said 199--mentionedtwo, and 1994, one in the same counselor. You have nocontrol over what your client said, what he said from thestand, but it is fair rebuttal because the inference isthat--the inference is that these are one in the same.[sic]. He did that."

From the trial court's ruling, it appears that it was allowing theState to put all three of defendant's convictions before the jury. Even if defendant took the ruling to mean that the court was onlyallowing rebuttal evidence as to two convictions, defendant couldnot use this ruling as a basis to falsely testify that he only hadtwo convictions. Therefore, defense counsel's question regardingdefendant's 1992 conviction was not objectively unreasonable.

C. CONSECUTIVE SENTENCE

Defendant argues that the court's ruling that his 30-yearconsecutive sentence for armed robbery should be modified to runconcurrently. In support of his argument, defendant relies upon aninterpretation of section 5-8-4(a) of the Unified Code ofCorrections (the Code) (730 ILCS 5/5-8-4(a) (West 1996)) and theholding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,147 L. Ed. 2d 435.

We first address defendant's argument that his consecutivesentence violated the tenets of Apprendi. Our supreme courtaddressed whether Apprendi is applicable to Section 5-8-4(a) inPeople v. Carney, 196 Ill. 2d 518 (2001). There, the defendant wascharged with intentional murder and felony murder based on a chargeof armed robbery. The jury returned a verdict of guilty of armedrobbery and a general verdict of guilty of first degree murder. The trial court sentenced the defendant to 29 years on murder and10 years on armed robbery, with the sentences to run consecutively. This court reversed the consecutive nature of the sentence as beingviolative of the holding in Apprendi. People v. Carney, 317 Ill.App. 3d 806, 740 N.E.2d 435 (2000). Our supreme court reversedthis aspect of our holding. "[W]e hold that consecutive sentencesimposed under section 5-8-4(a) of the Code do not violate the dueprocess rights of defendants and that the Supreme Court's Apprendidecision does not apply to such sentences." Carney, 196 Ill. 2dat 536. This is because "[c]onsecutive sentences do not expose adefendant to punishment exceeding the statutory maximum for eachconviction." Carney, 196 Ill. 2d at 536. We hold that as both ofdefendant's individual sentences were within the statutory rangeestablished by the legislature, the sentences do not violateApprendi. People v. Wagener, 196 Ill. 2d 269, 283-84 (2001).

We turn next to defendant's argument that his consecutivesentences violate section 5-8-4(a) of the Unified Code ofCorrections (730 ILCS 5/5-8-4(a)(West 1994). The applicablesentencing scheme in effect at the time the offenses werecommitted, provided in pertinent part:

"The court shall not impose consecutive sentences foroffenses which were committed as part of a single courseof conduct during which there was no substantial changein the nature of the criminal objective, unless, one ofthe offenses for which defendant was convicted was aClass X or Class 1 felony and the defendant inflictedsevere bodily injury, or where the defendant wasconvicted of a violation of Section 12-13 [criminalsexual assault] or 12-14 [aggravated criminal sexualassault] of the Criminal Code of 1961, in which event thecourt shall enter sentences to run consecutively. Sentences shall run concurrently unless otherwisespecified by the court." 730 ILCS 5/5-8-4(a) (West 1994).

This section was recently interpreted by our supreme court inPeople v. Whitney, 188 Ill. 2d 91, 720 N.E.2d 225 (1999). InWhitney, the defendant was convicted of first degree murder of onevictim and aggravated discharge of a firearm against a secondvictim, who suffered no injury. The trial court sentenced thedefendant to consecutive terms of imprisonment and the appellatecourt reversed, holding: "[f]irst degree murder, while obviouslysatisfying the 'severe bodily injury' requirement of section 5-8-4,is not a Class X or Class 1 felony under the Code." People v.Whitney, 297 Ill. App. 3d 965, 968, 720 N.E.2d 225 (1998).

The supreme court affirmed the appellate court, holding:

"[W]e construe the first exception under section 5-8-4(a)

as requiring consecutive sentencing where the defendant

has been convicted of either a Class X or Class 1 felony

and where he had inflicted severe bodily injury during

the commission of that felony.***

***

***First degree murder is not a Class X or

Class 1 felony; rather, it is its own class of felony.

730 ILCS 5/5-5-1(b) (West 1994). Aggravated discharge

of a firearm is a Class 1 felony. 720 ILCS 5/24-1.2(a)

(2),(b)(West 1994). Defendant's conduct however, in

committing the offense of aggravated discharge of a

firearm did not result in severe bodily injury to the

victim of that felony, Theodore Macklin. We therefore

hold that the requirements for the first exception under

section 5-8-4(a) have not been satisfied." (Emphasis

added). Whitney, 188 Ill. 2d at 98-100.

Here, defendant was convicted of the first degree murder ofScott Tisdale, two counts of home invasion, one with Scott Tisdaleas the victim and one with James Tisdale as the victim, and onecount of armed robbery with James Tisdale as the victim. The trialcourt sentenced defendant to 60 years for first degree murder, aconsecutive 30-year sentence for the armed robbery of JamesTisdale, and a concurrent 30-year sentence for home invasion.

Defendant maintains that the incidents that occurred onOctober 6 were committed as part of a single course of conductduring which there was no substantial change in the nature of thecriminal act. Specifically, defendant alleges that because theoffenses were part of a single course of conduct, under section 5-8-4(a), the imposition of a consecutive sentence was improperbecause the armed robbery did not result in severe bodily injury toJames Tisdale. Applying the holding of Whitney, as James Tisdaledid not suffer severe bodily injury, defendant's conviction for thearmed robbery of James cannot trigger a consecutive sentencepursuant to section 5-8-4(a).

The State argues that defendant's consecutive sentences may beupheld based on section 5-8-4(b) of the Code. At the time that theoffenses were committed, that section read:

"The court shall not impose a consecutive sentenceexcept as provided for in subsection (a) unless, havingregard to the nature and circumstances of the offense andthe history and character of the defendant, it is of theopinion that such a term is required to protect thepublic from further criminal conduct by the defendant,the basis for which the court shall set forth in therecord." 730 ILCS 5/5-8-4(b) (West 1994).

However, before a court may consider consecutive sentences undersection 5-8-4(b), the court must first determine whether section 5-8-4(a) applies. By its language, section 5-8-4(a) applies to alloffenses that arise out of a single course of conduct. This wasrecognized by the court in Whitney when it held:

"There is no dispute that defendant committed thesecrimes as part of a single course of conduct during whichthere was no substantial change in the nature of thecriminal objective. Consequently, defendant is subjectto consecutive sentences only if either of the exceptionsset forth in section 5-8-4(a) are applicable." (Emphasisadded). People v. Whitney, 188 Ill. 2d at 99.

It is important to note that, as a general rule, when multipleoffenses are committed in a single course of conduct, consecutivesentences are prohibited. The exceptions to this general rule werediscussed by our supreme court in People v. Curry, 178 Ill. 2d 509,687 N.E.2d 877 (1997):

"This court has determined that section 5-8-4(a)creates two exceptions to the general rule thatconsecutive sentences may not be imposed for multipleoffenses which occur as part of a single course ofconduct during which there was no substantial change inthe nature of the criminal objective. The firstexception occurs when one of the multiple offenses is aClass X or Class 1 felony and severe bodily injury isinflicted; the second exception occurs when one of themultiple offenses is a violation of section 12-13(criminal sexual assault) or 12-14 (aggravated criminalsexual assault) of the Criminal Code of 1961. When adefendant's convictions bring him within either of thesetwo exceptions, the mandatory consecutive sentencingprovision of section 5-8-4(a) is triggered andconsecutive sentences must be imposed." People v. Curry,178 Ill. 2d at 519-20.

The court also explained on which charges the trial courts were toimpose consecutive sentences under section 5-8-4(a) and how thesesentences were to be served:

"The triggering offenses listed in section 5-8-4(a)are crimes of a singular nature, involving 'particularlyserious invasions of the person.' [Citations.] Byenacting the mandatory consecutive sentencing provisionof section 5-8-4(a), the legislature sought to punish thecommission of triggering offenses more harshly than thecommission of other crimes. [Citation.] This legislativeintent would be defeated if the triggering andnontriggering offenses were treated in a like manner. Accordingly, we hold that consecutive sentences aremandatory only for those offenses which trigger theapplication of section 5-8-4(a). [Citations.]

***Consequently, section 5-8-4(a) must be construed sothat any consecutive sentences imposed for triggeringoffenses be served prior to, and independent of, anysentences imposed for nontriggering offenses. Sentencesfor multiple nontriggering offenses may be servedconcurrently to one another after any consecutivesentences for triggering offenses have been discharged.[Citations.]" People v. Curry, 178 Ill. 2d at 538-39.

If multiple convictions arise out of a single course of conduct,and one or more of those convictions is for a triggering offense,section 5-8-4(a) requires that any sentence for the triggeringoffense or offenses be served consecutively to any sentence imposedfor nontriggering offenses. People v. Curry, 178 Ill. 2d at 538-39. However, if multiple convictions arise out of a single courseof conduct, and none of those convictions is for a triggeringoffense, section 5-8-4(a) prohibits consecutive sentences. Peoplev. Whitney, 188 Ill. 2d at 99; People v. Daniel, 311 Ill. App. 3d276, 287, 723 N.E.2d 1279 (2000); People v. Kagan, 283 Ill. App. 3d212, 220, 669 N.E.2d 1239 (1996).

Further, if consecutive sentences are prohibited by section 5-8-4(a), then they cannot be imposed under section 5-8-4(b). Peoplev. Kagan, 283 Ill. App. 3d at 223; People v. Fritz, 225 Ill. App.3d 624, 628, 588 N.E.2d 307 (1992). This is because subsection (b)does not provide an additional basis to impose consecutivesentences when the multiple convictions arise out of a singlecourse of conduct; rather, it requires the sentencing court to makea specific finding if it wishes to impose consecutive sentences ina case where the court has the discretion to do so. People v.Kagan, 283 Ill. App. 3d at 223. Sentencing courts have nodiscretion under section 5-8-4(a). They are required to imposeconsecutive sentences on all triggering offenses arising out of asingle course of conduct, and they are prohibited from imposingconsecutive sentences on nontriggering offenses arising out of asingle course of conduct.

Prior to July 22, 1997, section 5-8-4(b) gave the trial courtthe discretion to impose consecutive sentences on any crime notcommitted in a single course of conduct if the court made a findingthat such sentences were necessary to protect the public. Peoplev. Cooper, 239 Ill. App. 3d 336, 359, 606 N.E.2d 705 (1992).

This version of section 5-8-4(b) was in effect at the time theinstant offenses were committed; therefore, the trial court haddiscretion to impose consecutive sentences on the defendant if theoffenses were committed in separate courses of conduct and thetrial court made a specific finding that such sentences werenecessary to protect the public. As section 5-8-4(b) only appliesto offenses that were committed in separate courses of conduct, wemust first determine if the instant offenses were committed in asingle course or separate courses of conduct.

In People v. Bell, 196 Ill. 2d 343, 348, 751 N.E.2d 1143, 1146(2001), our supreme court held:

"[G]enerally, under section 5-8-4(a) consecutivesentences will not be imposed where a defendant commitsoffenses that were part of a 'single course of conductduring which there was no substantial change in thenature of the criminal objective.' This test isfrequently referred to as the 'independent motivationtest.' 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); Peoplev. Siglar, 18 Ill. App. 3d 381, 383 (1974).

In adopting the "independent motivation test" to determinewhether offenses were part of a single course of conduct duringwhich there was no substantial change in the nature of the criminalobjective, the court in Bell did not really explain how courts areto apply the independent motivation test.

This issue was also recently discussed and interpreted inPeople v. Daniel, 311 Ill. App. 3d at 286-87. There, the courtheld:

"[W]e believe that the language 'during which there wasno substantial change in the nature of the criminalobjective' is meant to limit instead of define thelanguage 'single course of conduct.' Thus, we hold thatsection 5-8-4(a) applies only to those offenses committedduring a single course of conduct that is guided by an"overarching criminal objective." See People v. Kagan,283 Ill. App. 3d 212, 220 (1996), quoting People v.Fritz, 225 Ill. App. 3d 624, 629 (1992). In other words,if the acts constituting the course of conduct wereindependently motivated, section 5-8-4(a) isinapplicable.

Thus, we must determine whether the trial courtproperly concluded that defendant's actions in this caseconstituted a single course of conduct. In doing so wemust examine whether the motivation to commit theaggravated criminal sexual assault was independent of themotivation to commit the aggravated robbery, or whetherboth were guided by an 'overarching criminal objective.'

The term 'conduct' is defined in the Criminal Codeas 'an act or a series of acts, and the accompanyingmental state.' 720 ILCS 5/2-4 (West 1994). A 'course ofconduct' is not necessarily confined to a single incidentbut may encompass a range of activity. [People v.] Bole,155 Ill. 2d [188], 193 [(1993)]. The term 'objective'means 'something toward which effort is directed.' Webster's Third New International Dictionary 1556 (1993). Thus, an 'overarching objective' is a broad goal towardwhich individual acts are directed." People v. Daniel,311 Ill. App. 3d at 286-87.

The determination of whether a defendant's actions constituteda single course of conduct is a question of fact for the trialcourt to determine. People v. Edwards, 259 Ill. App. 3d 151, 156,630 N.E.2d 1266 (1994). Therefore, we defer to the trial court'sconclusion unless that conclusion is against the manifest weight ofthe evidence. People v. Daniel, 311 Ill. App. 3d at 287.

In this case, the trial court did not make a finding as towhether the offenses committed on October 6, 1995, of whichdefendant was convicted, arose out of a single course of conduct. Consequently, we must remand this case to the trial court. Indoing so, we direct the trial court to first determine whether thearmed robbery of James Tisdale, the home invasion of both James andScott Tisdale, and the murder of Scott Tisdale were committed in asingle course of conduct during which there was no substantialchange in the nature of the criminal objective.

The court must then determine whether the defendant inflictedsevere bodily injury during the commission of any of the Class Xfelonies that were committed in a single course of conduct. Wenote that it is uncontested that James Tisdale was not injuredduring the armed robbery or home invasion. Consequently, if thecourt determines that these offenses occurred in a single course ofconduct, the trial court may not impose consecutive sentences ondefendant for either of these offenses under either section 5-8-4(a) (see People v. Whitney, 188 Ill. 2d at 100) or under section5-8-4(b) (see People v. Kagan, 283 Ill. App. 3d at 220).

If on remand the trial court determines that the home invasionand murder of Scott Tisdale occurred in a single course of conduct,the court must then determine whether defendant inflicted severebodily injury upon Scott Tisdale during the commission of the homeinvasion. If the court finds both of these factors to be present,the court must impose a sentence on the Class X offense of homeinvasion, consecutive to the sentence for first degree murder.

In People v. Arna, 168 Ill. 2d 107, 112, 658 N.E.2d 445(1995), our supreme court held that when the provisions of section5-8-4(a) have been met, imposition of consecutive sentences ismandatory. The court held that the imposition of a concurrentsentence in violation of section 5-8-4(a) is void and subject to areviewing court's remand for imposition of the required consecutivesentence. Arna, 168 Ill. 2d at 113.

We must next determine whether the first degree murder ofScott Tisdale satisfies the severe bodily injury requirement. InPeople v. Hill, 294 Ill. App. 3d 962, 691 N.E.2d 797 (1998), thiscourt affirmed the sentence of a defendant who had been sentencedto natural life for first degree murder, to a 60-year consecutiveterm for home invasion and to a 30-year consecutive term for armedrobbery. This court reduced the sentence for home invasion to 30years under People v. Young, 124 Ill. 2d 147, 529 N.E.2d 497(1988), but affirmed the consecutive sentences for both the homeinvasion and armed robbery of the single victim. The court alsorejected the defendant's argument on appeal that he did not use aweapon when he took the victim's property. "[A]s long as there issome concurrence between the defendant's threat of force and thetaking of the victim's property, a conviction for armed robbery isproper. [People v.] Lewis, 165 Ill. 2d [305], 339 [(1995)]; Peoplev. Strickland, 154 Ill. 2d 489, 524, 609 N.E.2d 1366 (1992); Peoplev. Wilson, 254 Ill. App. 3d 1020, 1059, 626 N.E.2d 1282 (1993). Furthermore, convictions for armed robbery will be upheld on reviewwhen the defendant's use of threat or force and the taking arefound to be a series of continuous acts. [Citations.]" People v.Hill, 294 Ill. App. 3d at 971.

In People v. Moreland, 292 Ill. App. 3d 616, 686 N.E.2d 597(1997), appeal denied, 179 Ill. 2d 606 (1998), this court affirmedthe defendant's convictions for murder, armed robbery andaggravated kidnaping with sentences of 60 years for murder, 30years on armed robbery to run consecutively and 15 years on theaggravated kidnaping to run concurrently. In affirming thesentences, the court cited section 5-8-4(a) and People v. Curry,178 Ill. 2d 509, 687 N.E.2d 877 (1997). The appellate courtaffirmed the trial court's finding that the severe bodily injury tothe single victim did not "arise from" the act of the kidnaping,citing People v. Medrano, 282 Ill. App. 3d 887, 669 N.E.2d 114(1996).

The appellate court in Whitney held that first degree murder"obviously satisf[ied] the 'severe bodily injury' requirement ofsection 5-8-4." People v. Whitney, 297 Ill. App. 3d at 968. Thesupreme court's holding in Whitney also supports the propositionthat the murder of the victim of a triggering offense fulfills the"severe bodily injury" requirement of section 5-8-4(a). Inaffirming the appellate court, the supreme court in Whitney said"[W]e disagree that only Class X or Class 1 felonies where severebodily injury is an inherent factor trigger consecutive sentencesunder section 5-8-4(a). Instead, any Class X or Class 1 felonythat results in severe bodily injury being inflicted on the victimof that felony triggers consecutive sentences." (Emphasis added.)Whitney, 188 Ill. 2d at 99. Based on this language, the murder ofthe victim of a "triggering offense" may provide the basis for afinding of severe bodily injury for purposes of section 5-8-4(a). In determining what relationship must exist between thetriggering offense and the severe bodily injury, the supreme courtin Whitney first reviewed the defendant's position on appeal. Indoing so, the court specifically referred to cases holding that"the severe bodily injury requirement of section 5-8-4(a) must beproximately connected to the Class X or Class 1 felony for it to bea triggering offense." (Emphasis added.) People v. Whitney, 188Ill. 2d at 96, citing People v. Medrano, 282 Ill. App. 3d 887, 896-97, 669 N.E.2d 114 (1996), and People v. Toliver, 251 Ill. App. 3d1092, 1099-1100, 623 N.E.2d 880 (1993). The court held: "[W]econstrue the first exception under section 5-8-4(a) as requiringconsecutive sentencing where the defendant has been convicted ofeither a Class X or Class 1 felony and where he had inflictedsevere bodily injury during the commission of that felony."(Emphasis added.) People v. Whitney, 188 Ill. 2d at 98-99.

We stress that in determining whether to impose consecutivesentences in a given case, the trial court must make factualdeterminations as to each of the factors required by section 5-8-4and by cases interpreting that section. The first issue to bedecided is whether the multiple offenses of which the defendant isconvicted were committed in a single course of conduct. If so,section 5-8-4(a) applies, and consecutive sentences are mandatorybut they may only be imposed on "those offenses which trigger theapplication of section 5-8-4(a)." People v. Curry, 178 Ill. 2d at538. Consequently, trial courts must also determine whether agiven offense is a triggering offense. Since 1988, section 5-8-4(a)(i) has required consecutive sentences for Class X or Class 1felonies during the commission of which the defendant inflictedsevere bodily injury. People v. Whitney, 188 Ill. 2d at 99. Section 5-8-4(a)(ii) has required consecutive sentencing forconvictions of criminal sexual assault and aggravated criminalsexual assault since 1988. Effective January 1, 2000, first degreemurder and many charges of armed violence were added as triggeringoffenses. If the offenses were committed in a single course ofconduct and none of them qualify as triggering offenses, section 5-8-4(a) prohibits consecutive sentencing. People v. Whitney, 188Ill. 2d at 100.

If the trial court determines that the offenses were notcommitted in a single course of conduct, consecutive sentences mayonly be imposed under section 5-8-4(b). Prior to July 22, 1997,section 5-8-4(b) gave the trial court the discretion to imposeconsecutive sentences on any crime not committed in a single courseof conduct if the court made a finding that such sentences werenecessary to protect the public. This is the section that may beapplicable in the instant case.

We note that, effective July 22, 1997, section 5-8-4(b) wasamended to require consecutive sentences on triggering offensesthat were not committed in a single course of conduct. People exrel. Waller v. McKoski, 195 Ill. 2d 393 (2001); People v. Conley,306 Ill. App. 3d 1, 11 (1999). The triggering offenses enumeratedin section 5-8-4(b) are identical to those set out in section 5-8-4(a). Thus, the 1997 amendment had the practical effect ofrequiring consecutive sentences on all triggering offenses, whetherthey were committed in a single course of conduct or separatecourses of conduct. After July 22, 1997, if the crimes were notcommitted in a single course of conduct and none of them qualify astriggering offenses, section 5-8-4(b) gives the trial courtdiscretion to impose a consecutive sentence if it makes a findingthat consecutive sentences are necessary to protect the public. People v. Stacey, 193 Ill. 2d 203, 211 (2000).

For the foregoing reasons, we affirm defendant's convictionsfor murder, home invasion and armed robbery and defendant'ssentence for first degree murder. We vacate defendant's sentencesfor armed robbery and home invasion and we remand this matter tothe trial court for resentencing on those charges, in accordancewith the directions herein.

Affirmed in part and vacated in part, cause remanded withinstructions.

THEIS and REID, JJ., concur.