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________
IN THE
SUPREME COURT OF ILLINOIS
Background
indictment with first degree murder and sixteen counts of aggravated battery
with a firearm for killing Laquan McDonald on October 20, 2014. SR1-24.1
1 “SR_” refers to the supporting record filed with this motion and proposed
petition.
2. On October 5, 2018, a Cook County jury found Van Dyke guilty of second
SR165-70.
felonies (730 ILCS 5/5-4.5-25(d)), requiring a sentence between six and thirty
offense must serve at least 85% of the sentence imposed. 730 ILCS 5/3-6-
requiring a sentence between four and twenty years (730 ILCS 5/5-4.5-30(a)).
separate shot that Van Dyke fired. SR9-24. At trial, the People similarly
argued that each shot supported a separate conviction for aggravated battery
with a firearm. SR50-51. Dr. Ponni Arunkumar testified at trial that each
shot struck the victim, caused blood loss, and contributed to the victim’s
Judge Gaughan was required to sentence Van Dyke on each of the sixteen
aggravated battery with a firearm convictions, citing People v. Lee, 213 Ill. 2d
2
218, 229-30 (2004), and People v. Crespo, 203 Ill. 2d 335, 344-45 (2001).
SR175-80.
Van Dyke on the “more serious” offense. SR242-43. But in deciding which
offense was more serious, he relied on the dissenting opinion in Lee. SR245
(“[A]pplying Justice Thomas’s reasoning, I find that the lesser offense in this
(“Justice Thomas in that case out of the Supreme Court framed the issue
which I think is important here.”); SR243 (“But looking at that, and then
Justice Thomas’s analysis of the penalties . . .”). Judge Gaughan also stated
that were he to sentence Van Dyke on the aggravated battery with a firearm
convictions, he would merge all sixteen convictions under the one-act, one-
crime doctrine because the shots were fired close in time. SR245.
Circuit Clerk’s Office, Van Dyke filed a notice of appeal on February 8, 2019.2
2 Van Dyke’s direct appeal has no effect on this mandamus action. See, e.g.,
People ex rel. Daley v. Strayhorn, 119 Ill. 2d 331, 333-37 (1988)
(notwithstanding pending direct appeal, mandamus was proper to require
sentencing judge to follow mandatory statutory sentencing guidelines). The
direct appeal will not address the sentencing errors raised in this mandamus,
SR188-99, and the State may not raise the errors through a cross-appeal,
People v. Castleberry, 2015 IL 116916, ¶¶ 21-23.
3
Argument
2016 IL 120729, ¶¶ 12-13 (citing People ex rel. Birkett v. Konetski, 233 Ill. 2d
rather than prohibitory relief, the writ can be used to compel the undoing of
to the relief sought, a clear duty of the public official to act, and clear
authority in the public official to comply with the writ. Howard, 2016 IL
120729, ¶ 12.
jurisdiction of the tribunal against which the writ issues must be inferior to
that of the issuing court, the action to be prohibited must be outside the
authority, and the petitioner must be without any other adequate remedy.
4
People ex rel. Devine v. Stralka, 226 Ill. 2d 445, 449-50 (2007); Zaabel v.
and (2) no other adequate remedy is available because petitioners may not
a firearm and second degree murder based on the same conduct, the trial
court must sentence the defendant only on the “more serious” offense. Lee,
213 Ill. 2d at 226-27. The question of which offense is “more serious” is one
for the General Assembly. Id. at 230. Because the General Assembly
a more serious offense than second degree murder. Id. at 228-30 (vacating
5
Despite this Court’s clear holding in Lee, Judge Gaughan sentenced
Van Dyke on second degree murder and declined to impose sentence on the
Lee, Judge Gaughan stated that he would decide which was the more serious
offense based on the facts of the particular case. SR242 (“Justice Thomas in
that case out of the Supreme Court framed the issue which I think is
important here”); SR243 (“But looking at that, and then Justice Thomas’s
reasoning, I find that the lesser offense in this particular case . . . is the
Lee remains good law. See People v. Johnson, 237 Ill. 2d 81, 98 (2010)
(applying Lee and reiterating that “[t]he determinative question in each case
is the intent of the legislature”). And in the fifteen years following Lee, the
General Assembly has amended neither the felony classifications nor the
sentencing ranges for either of these two offenses, further demonstrating that
aggravated battery with a firearm convictions, the sentence for second degree
6
murder was unauthorized. See, e.g., Blumenthal v. Brewer, 2016 IL 118781,
¶¶ 28-30 (lower courts are not free to disregard decisions of this Court).
as multiple acts and obtain multiple convictions, the sentencing court must
335, 344-45 (2001) (multiple convictions and sentences would have been
appropriate had State argued that each stab wound was alone sufficient to
sustain charge); see also People v. Dixon, 91 Ill. 2d 346, 356 (1982) (“separate
blows, even though closely related, were not one physical act” and therefore
Judge Gaughan also stated that were he to sentence Van Dyke for the
sixteen convictions, reasoning that because the sixteen shots were fired in less
than thirty seconds, they constituted a single act. SR245 (“all those shots were
done within a range of anyplace from 14 to so many seconds, but less than 30
seconds, at the most, so I consider that one act, so they would all merge.”).
Because the People separately charged each shot and the jury convicted
on each count, separate convictions and sentences are required. Even where
multiple acts by a defendant are committed close in time, they can sustain
multiple convictions under Crespo if the People charge and argue each act as a
7
separate offense. 203 Ill. at 342 (“[S]eparate blows, although closely related,
convictions.”). The People here did just that. SR9-24, 51; see also SR 165-70.
sentences, 730 ILCS 5/5-8-4(d)(1), and not every gunshot wound constitutes
severe bodily injury, see, e.g., People v. Williams, 335 Ill. App. 3d 596, 601
(1st Dist. 2002) (remanding for factfinding on severe bodily injury where
“severe” is a question of fact for the sentencing judge. See People v. Deleon,
227 Ill. 2d 322, 332 (2008). Thus, in imposing sentence for the sixteen
sentences.3
Conclusion
conformance with Lee, Crespo, and the applicable sentencing provisions, and
ILCS 5/5-8-4(d)(1).
Respectfully submitted,
KWAME RAOUL
Attorney General of Illinois
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601-3218
(312) 814-2232
eserve.criminalappeals@atg.state.il.us
JOSEPH H. MCMAHON
State’s Attorney of Kane County
37W777 Route 38, Suite 300
St. Charles, Illinois 60175
(630) 232-3500
jm@co.kane.il.us
DAVID L. FRANKLIN
Solicitor General
MICHAEL M. GLICK
Criminal Appeals Division Chief
/s/Michelle Katz
MICHELLE KATZ
Assistant State’s Attorney
9
VERIFICATION BY CERTIFICATION
of Civil Procedure, the undersigned certifies that the statements set forth in
this instrument are true and correct, except as to matters therein stated to be