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Docket No. 89520-Agenda 9-January 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. TERRELL W. BELL, JR., Appellant.

Opinion filed May 24, 2001.

JUSTICE McMORROW delivered the opinion of the court:

In this appeal, we determine the proper test for ascertainingwhether offenses arise from an unrelated course of conduct forpurposes of imposing extended-term sentences under section5-8-2(a) of the Unified Code of Corrections. 730 ILCS5/5-8-2(a) (West 1998).

BACKGROUND

Evidence produced at trial established the following facts. OnAugust 20, 1996, defendant and two friends, Ronald Smith andAndre Anderson, visited Chuck and Charlie's Tavern in Quincy,Illinois. Terry Powell, an acquaintance of defendant, was alsopresent at the tavern. When Powell left the tavern, defendant,Smith, and Anderson followed him into an alley and attacked him.The men hit and kicked Powell, and defendant struck him severaltimes with a pool cue stick or a mop handle. At some point duringthe beating, defendant took money from Powell's trousers. Themen then continued to hit and kick Powell. The entire beatinglasted approximately 15 minutes.

Defendant was subsequently apprehended and charged witharmed robbery (720 ILCS 5/18-2(a) (West 1998)), robbery (720ILCS 5/18-1(a) (West 1998)) and two counts of aggravated battery(720 ILCS 5/12-4(a), (b)(1) (West 1998)).⁽¹⁾ On January 14, 1998,a jury in the circuit court of Adams County convicted defendant ofone count of armed robbery, one count of robbery and two countsof aggravated battery. At defendant's sentencing hearing onFebruary 20, 1998, the State sought a total sentence of 30 to 50years' imprisonment. Defendant requested leniency, due to his ageof 24 years and his rehabilitative potential. The circuit courtsentenced defendant to a term of 20 years' imprisonment for thearmed robbery conviction. The circuit court also imposed anextended-term sentence of 10 years' imprisonment pursuant tosection 5-8-2(a) of the Unified Code of Corrections (730 ILCS5/5-8-2(a) (West 1998)) for the aggravated battery conviction.The sentences were ordered to run concurrently pursuant to section5-8-4(a) of the Unified Code of Corrections (730 ILCS5/5-8-4(a) (West 1998)) because the court found that the armedrobbery and aggravated battery were the result of a "single courseof conduct."

Defendant appealed. On appeal, defendant argued that: (1) thetrial court's sentences were an abuse of discretion in light ofdefendant's rehabilitative potential; and (2) the trial court erred inimposing an extended-term sentence for defendant's aggravatedbattery conviction. With respect to his second argument, defendantcontended that, because his convictions arose from a single courseof conduct, he was eligible to receive an extended-term sentenceonly on the more serious class offense of armed robbery.

The appellate court held that the trial court did not abuse itsdiscretion when sentencing defendant. 313 Ill. App. 3d 280, 283.The appellate court also rejected defendant's argument that he wasineligible to receive an extended-term sentence for the aggravatedbattery conviction. 313 Ill. App. 3d at 286. The appellate courtstated that, according to this court's decision in People v. Jordan,103 Ill. 2d 192 (1984), a defendant convicted of multiple offensesmay be sentenced to an extended-term sentence, pursuant tosection 5-8-2(a), only on those offenses within the most seriousclass. 313 Ill. App. 3d at 283. The appellate court further noted,however, that under section 5-8-2(a), extended-term sentencesmay be imposed on differing class offenses that arise from"unrelated courses of conduct." 313 Ill. App. 3d at 283, citingPeople v. Coleman, 166 Ill. 2d 247, 257 (1995). In this case, theappellate court determined that defendant's armed robbery andaggravated battery convictions arose from an "unrelated course ofconduct," and, therefore, he was eligible to receive an extended-term sentence for the aggravated battery conviction pursuant tosection 5-8-2(a). 313 Ill. App. 3d at 286.

In holding that defendant was eligible to receive an extended-term sentence, the appellate court reasoned that there were twopossible tests for determining if a defendant's offenses arise froman "unrelated course of conduct." 313 Ill. App. 3d at 285. One testis derived from section 5-8-4(a) of the Code (730 ILCS5/5-8-4(a) (West 1998)), which controls the imposition ofconsecutive sentences for multiple convictions. Section 5-8-4(a)states:

"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 of theoffenses for which defendant was convicted was a ClassX or Class 1 felony and the defendant inflicted severebodily injury, or where the defendant was convicted of aviolation of Section 12-13, 12-14, or 12-14.1 of theCriminal Code of 1961 ***." 730 ILCS 5/5-8-4(a) (West1998).

Therefore, generally, under section 5-8-4(a) consecutivesentences will not be imposed where a defendant commitsoffenses that were part of a "single course of conduct during whichthere was no substantial change in the nature of the criminalobjective." 730 ILCS 5/5-8-4(a) (West 1998). This test isfrequently referred to as the "independent motivation" test. 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); People v. Siglar, 18 Ill. App. 3d 381, 383 (1974).

The second test considered by the appellate court was the"multiple acts test" (313 Ill. App. 3d at 285), which was originallydiscussed in the context of extended-term sentences in a specialconcurrence by Justice Cook in People v. Keene, 296 Ill. App. 3d183, 191 (1998) (Cook, J., specially concurring).⁽²⁾ Under the"multiple acts test," offenses arise from an "unrelated course ofconduct" when the offenses are supported by more than onephysical act, unless one offense is an included offense. 313 Ill.App. 3d at 284-85.

Examining the two tests, the appellate court concluded thatthe section 5-8-4(a) test-whether there was a "substantial changein the nature of [a defendant's] criminal objective"-"has potentialfor confusion and gives less guidance to trial courts." 313 Ill. App.3d at 285. The court rejected that test and, instead, adopted themultiple acts test for the purpose of determining whether multipleoffenses arise from an "unrelated course of conduct" under section5-8-2(a).

Applying the multiple acts test to the case at bar, the appellatecourt held that defendant's offenses of armed robbery andaggravated battery were supported by more than one physical actand, therefore, were part of an "unrelated course of conduct." 313Ill. App. 3d at 285. The court noted that the evidence showeddefendant struck and kicked Powell before reaching into histrousers and taking money. Defendant then struck and kickedPowell again. Based on these facts, the court found that"[d]efendant's act of armed robbery, taking money from Powell'spants while armed with a dangerous weapon, was a separate anddistinct act from defendant's act of striking and kicking [thevictim]. The act of reaching into Powell's pants and taking hismoney was a separate act from the act of striking and kicking [thevictim]." 313 Ill. App. 3d at 285-86. The court held that, althoughthe "acts had some connection to each other, *** [defendant]committed two separate acts and two separate crimes." 313 Ill.App. 3d at 286. The appellate court concluded that defendant waseligible for an extended-term sentence for aggravated battery and,therefore, was properly sentenced. 313 Ill. App. 3d at 286.

We granted defendant's petition for leave to appeal. 177 Ill.2d R. 315(a).

ANALYSIS

Before this court, defendant contends that he was not eligiblefor an extended-term sentence under section 5-8-2(a) of theUnified Code of Corrections (730 ILCS 5/5-8-2(a) (West 1998))because his offenses of armed robbery and aggravated battery werenot part of an "unrelated course of conduct."

Section 5-8-2(a) of the Unified Code of Corrections governsthe imposition of an extended-term sentence and provides:

"A judge shall not sentence an offender to a term ofimprisonment in excess of the maximum sentenceauthorized by Section 5-8-1 for the class of the mostserious offense of which the offender was convictedunless the factors in aggravation set forth in paragraph (b)of Section 5-5-3.2 were found to be present." 730 ILCS5/5-8-2(a) (West 1998).

In Jordan, 103 Ill. 2d 192, we interpreted section 5-8-2(a) tomean that a defendant who is convicted of multiple offenses maybe sentenced to an extended-term sentence only on those offensesthat are within the most serious class. Jordan, 103 Ill. 2d at 205-06. However, extended-term sentences may be imposed "onseparately charged, differing class offenses that arise fromunrelated courses of conduct." (Emphasis added.) Coleman, 166Ill. 2d at 257.

This court has not yet adopted a test to determine whethermultiple offenses arise from an "unrelated course of conduct" forpurposes of extended-term sentencing under section 5-8-2(a).Defendant argues that we should adopt the section 5-8-4(a) test,used to determine whether offenses arise from a "single course ofconduct," for purposes of consecutive sentencing, to determine thesimilar question of whether multiple offenses arise from an"unrelated course of conduct" for purposes of extended-termsentencing under section 5-8-2(a). Generally, under section5-8-4(a), consecutive sentences will not be imposed "for offenseswhich were committed as part of a single course of conduct duringwhich there was no substantial change in the nature of the criminalobjective." Thus, defendant contends that the section 5-8-4(a)test-whether there was a "substantial change in the nature of[defendant's] criminal objective"-should be used to determinewhether multiple offenses are part of an "unrelated course ofconduct" under section 5-8-2(a). According to defendant, theadoption of a different test to interpret "unrelated courses ofconduct" and "single courses of conduct" will lead to confusion inthe trial courts. Defendant thus contends that the appellate courterred in adopting the multiple acts test to determine whetheroffenses are part of an "unrelated course of conduct."

The State, in response, argues that the appellate courtcorrectly adopted the multiple acts test to determine whethermultiple offenses arise from an "unrelated course of conduct."Under the multiple acts test, when two or more offenses aresupported by more than one physical act, the offenses arise froman "unrelated course of conduct," unless one offense is an includedoffense. 313 Ill. App. 3d at 284-85. The State argues that themultiple acts test provides courts with more guidance and lessconfusion than the section 5-8-4(a) test by giving courts a "clearstandard" to determine whether multiple offenses arise from an"unrelated course of conduct." In addition, the State contends thatwhether offenses arise from a "single" or separate course ofconduct for purposes of consecutive sentencing under section5-8-4(a) is a separate issue from whether the offenses arise froman "unrelated course of conduct" for purposes of extended-termsentencing under section 5-8-2(a). According to the State, thelegislature's decision to draft two separate provisions for aconsecutive sentencing determination and an extended-termsentencing determination indicates that the two sentencingdeterminations require different standards. We disagree with theState's contentions.

We hold that the section 5-8-4(a) test-whether there was a"substantial change in the nature of [defendant's] criminalobjective"-is the proper test for determining whether multipleoffenses arise from an "unrelated course of conduct" pursuant tosection 5-8-2(a). We do so for two reasons.

First, in adopting the section 5-8-4(a) test to determinewhether offenses arise from an "unrelated course of conduct," weminimize any confusion that may result in the trial courts if twodifferent tests were required to determine whether offenses are partof a "single" or separate course of conduct under section 5-8-4(a)and whether they are part of an "unrelated course of conduct"under section 5-8-2(a). As we discuss below, if we were to adoptthe multiple acts test, a court could find that a defendant's offenseswere part of a "single course of conduct" and impose consecutivesentences pursuant to section 5-8-4(a), and then find that thosesame offenses were part of an "unrelated course of conduct" andimpose an extended-term sentence on a lesser class offensepursuant to section 5-8-2(a).

The case at bar provides an example of the confusion thatcould result. Here, the trial court specifically found thatdefendant's offenses were part of a "single course of conduct" and,accordingly, sentenced him to concurrent sentences under section5-8-4(a). The trial court then sentenced defendant to an extended-term sentence for the lesser class offense of aggravated battery.Although neither defendant nor the State contested the trial court'sfinding that defendant's offenses were part of a "single course ofconduct" under section 5-8-4(a), defendant did appeal the trialcourt's imposition of an extended-term sentence. On appeal, theappellate court applied the multiple acts test to determine whetherdefendant was eligible for an extended-term sentence and foundthat defendant's offenses were part of an "unrelated course ofconduct." Thus, under the appellate court's reasoning, defendant'soffenses were, at the same time, part of a "single" yet "unrelated"course of conduct. In adopting the same test to determine whetheroffenses were part of a "single course of conduct" and whether thesame offenses were part of an "unrelated course of conduct," weavoid the possibility of such an absurd result.

Second, under the multiple acts test, virtually all offenses willbe "unrelated," because different offenses generally require proofof different physical acts. Indeed, the State conceded at oralargument that, under the multiple acts test, it is "a possibility" thatany two crimes would be considered unrelated, such that anextended-term sentence would be appropriate in nearly everysituation. The only example the State could offer as to when acourt would be prohibited from imposing an extended-termsentence on a lesser class offense would be a case in which adefendant shoots a bullet into one person, and the bullet exits thebody of that person and enters another person, thereby killing bothpersons.

We do not believe that 5-8-2(a) should or was intended toaddress such limited situations, especially because, even under theState's "single bullet" scenario, an extended-term sentence wouldnot be possible. In People v. Segara, 126 Ill. 2d 70 (1988), we heldthat " 'if exactly the same physical act does form the basis formore than one offense, a defendant may still be prosecuted foreach offense, but only one conviction and sentence may beimposed.' " Segara, 126 Ill. 2d at 77, quoting H. Eisenberg,Multiple Punishments for the "Same Offense" in Illinois, 11 S. Ill.U. L.J. 217, 237 (1987). Thus, where two offenses result from thesame physical act, there would be no need to determine whetherthose offenses are part of an "unrelated course of conduct,"because only one conviction and sentence will be imposed. Itappears then that an extended-term sentence would be permissiblein essentially every situation under the multiple acts test. However,as we have held, imposition of an extended-term sentence on alesser class offense is not appropriate in every situation but, rather,is appropriate only where offenses arise from an "unrelated courseof conduct."

The State relies upon People v. King, 66 Ill. 2d 551 (1977), inwhich this court found problematic the use of the section 5-8-4(a)test to determine whether a defendant convicted of multipleoffenses may have concurrent sentences imposed. King, 66 Ill. 2dat 564. In King, we adopted the multiple acts test for determiningwhether concurrent sentences are appropriate. King, 66 Ill. 2d at566. However, we observed a "distinction" between the impositionof consecutive and concurrent sentences and held that a defendantis prejudiced if he receives "consecutive sentences for crimesarising from multiple acts motivated by essentially the samecriminal objective." King, 66 Ill. 2d at 565. We noted that adefendant's criminal objective is relevant in determining whetherconsecutive sentences may be imposed. King, 66 Ill. 2d at 565.The issue in the case at bar, whether a defendant is eligible for anextended-term sentence, is more akin to a determination ofwhether a defendant can receive consecutive sentences than it isto a determination of whether multiple convictions and concurrentsentences may be imposed. Indeed, we have previously relied onsection 5-8-2(a), which governs extended-term sentencing, inconstruing section 5-8-4(a), which governs consecutivesentencing. See People v. Terrell, 132 Ill. 2d 178, 229 (1989)("Although the statute we are discussing authorizes the impositionof consecutive sentences, rather than extended terms ofimprisonment, it too concerns a sentence of 'imprisonment' ").Therefore, the State's reliance on King is misplaced.

We hold that, in determining whether a defendant's multipleoffenses are part of an "unrelated course of conduct" for thepurpose of his eligibility for an extended-term sentence undersection 5-8-2(a), courts must consider whether there was asubstantial change in the nature of the defendant's criminalobjective. If there was a substantial change in the nature of thecriminal objective, the defendant's offenses are part of an"unrelated course of conduct" and an extended-term sentence maybe imposed on differing class offenses. If, however, there was nosubstantial change in the nature of the criminal objective, thedefendant's offenses are not part of an unrelated course ofconduct, and an extended-term sentence may be imposed only onthose offenses within the most serious class.

Having adopted the section 5-8-4(a) test for determiningwhether multiple offenses are part of an "unrelated course ofconduct" pursuant to section 5-8-2(a), we apply that test to thecase at bar. Here, the trial court found that defendant's offenses ofarmed robbery and aggravated battery were the result of a "singlecourse of conduct" under section 5-8-4(a). Because this findingwas not contested by either party, we accept it for the purpose ofthis appeal. Based on the trial court's finding that defendant'soffenses were part of a "single course of conduct," those offensescannot be part of an "unrelated course of conduct." Consequently,defendant is eligible for an extended-term sentence only on themost serious class offense. Aggravated battery is a Class 3 felonyand is a less serious class of offense than armed robbery, a ClassX felony. 720 ILCS 5/12-4(e), 18-2(b) (West 1998). Therefore,the trial court erred in imposing an extended-term sentence ondefendant's aggravated battery conviction.

CONCLUSION

For the foregoing reasons, the judgment of the appellate courtis reversed. We vacate the circuit court's imposition of anextended-term sentence for defendant's aggravated batteryconviction. We remand the matter to the circuit court withdirections to resentence defendant for the aggravated batteryconviction pursuant to section 5-8-1(a)(6) of the Unified Code ofCorrections (730 ILCS 5/5-8-1(a)(6) (West 1998)).

Appellate court judgment reversed;

circuit court judgment vacated in part;

cause remanded with directions.

JUSTICE GARMAN took no part in the consideration ordecision of this case.

1. ¹Defendant was also charged with one count of failure to register achange of address as a child sex offender. 730 ILCS 150/6 (West 1998).However, this charge was later severed upon defendant's motion.

2. ²The multiple acts test originally was formulated by this court todetermine whether multiple convictions and concurrent sentences maybe imposed. See People v. King, 66 Ill. 2d 551, 560-66 (1977).