PEOPLE v. CALHOUN

In rejecting defendant's argument, the plurality in Moore first recognized the continued viability of the one-good-count rule. Moore, 397 Ill. App. 3d at 564, citing People v. Cardona, 158 Ill. 2d 403, 411-12 (1994), and People v. Thompkins, 121 Ill. 2d 401, 455-56 (1988). Next, relying on the supreme court's decision in Davis, the plurality in Moore found that our supreme court had explicitly limited the holding in Smith to situations wherein a defendant requests a separate verdict form and his request is denied. Moore, 397 Ill. App. 3d at 565. Accordingly, the Moore plurality held that the Smith decision did not disturb the one-count principle, under which it could be presumed that the jury found defendant guilty of intentional murder, nor did it impose a sua sponte duty on the trial court to give specific verdict forms. Moore, 397 Ill. App. 3d at 566. As the plurality in Moore explained:

"Although portions of the Smith opinion suggest disapproval of the use of the one-good-count rule to subject a defendant to more severe sentencing, the court's discussion is clearly dependent on the case's procedural context: the trial court denied the defense request to submit separate verdict forms to the jury. The Smith court repeatedly noted this context: `it is a violation of due process to deny a defendant the opportunity to have the jury decide his theory of defense' [citation]); `because the presumption that arises from application of the "one-good-count rule" could work a prejudice against [defendants] at sentencing, the presumption cannot substitute for the jury's actual findings, at least where defendants have requested that the jury make specific findings with regard to the degree of the offense (emphasis added) [citation]; `the trial courts erred when they refused defendants' requests for separate verdict forms [Citation].

The significance of this procedural context has been confirmed by the supreme court [in Davis]." Moore, 397 Ill. App. 3d at 565-66.

The plurality in Moore continued:

"[T]he one-good-count principle has long been employed to permit enhanced sentencing, including the imposition of consecutive sentences for additional felonies, by construing a general first degree murder verdict as a finding of guilt on an intentional murder charge. We believe that this use of the principle is among the corollary rules explicitly left undisturbed by Smith. The Davis court's discussion of Smith demonstrates that the distinguishing factor entitling the defendant to relief from the application of the one-good-count principle in Smith was the request for separate verdict forms at trial, not the mere possibility that the principle would subject him to increased punishment. Accordingly, we reject Moore's argument that he is entitled to the relief granted in Smith because he, like the defendant there, received consecutive sentences, while the defendant in Davis did not. Since Moore did not request separate verdict forms in the instant case, we hold that Smith offers no support for his assertion that the general murder verdict could not support his armed robbery conviction." Moore, 397 Ill. App. 3d at 566.

Defendant nevertheless urges that we should adopt the view of the dissent in Moore. The dissent posits that Davis does not purport to modify the finding in Smith that regardless of whether special verdicts are requested, a sentence is void where it was impossible to tell from the general verdict whether the jury convicted defendant of intentional murder. Moore, 397 Ill. App. 3d at 578 (Theis, J., dissenting). According to the dissent, Smith and Davis are mutually distinguishable because Davis did not involve a failure to give special verdict forms but, rather, focused on the propriety of giving a felony murder instruction, where such an instruction may not have been warranted. Moore, 397 Ill. App. 3d at 576 (Theis, J., dissenting). As already pointed out above, Davis addressed whether a trial court erred when it instructed the jury that felony murder could be predicated upon an underlying aggravated battery where the conduct underlying the battery and the murder were the same and had no separate felonious purpose. Davis, 233 Ill. 2d at 264. Unlike Davis, where defendant merely challenged the propriety of the instruction with respect to the theory upon which he was convicted for murder, in Smith, the defendants challenged the validity of their convictions and sentence for both the murder and the underlying offense, contending that the denial of special verdict forms resulted in the possibility that they were subjected to increased punishment based upon the application of the one-good-count rule. Smith, 233 Ill. 2d at 23.

The dissent therefore posits that, unlike the issue in Davis, the issue in Smith was the failure to tender special verdict forms. The dissent urges that the error in failing to provide special verdict forms could result in increased punishment to a defendant and is therefore deserving of different treatment than the failure to give a proper felony murder instruction. Moore, 397 Ill. App. 3d at 578 (Theis, J., dissenting). Thus, the dissent concludes that the error to give specific verdict forms is presumptively prejudicial under any plain error analysis while the failure to give an instruction is not. Moore, 397 Ill. App. 3d at 578 (Theis, J., dissenting).

While we cannot disagree with the factual distinction between Davis and Smith as pointed out by the thoughtful dissent, we are nevertheless persuaded by our supreme court's specific interpretation in Davis of its own prior holding in Smith in which it unqualifiedly stated that "the holding of Smith was conditioned on the trial court's refusal to grant such a request and did not establish a rule that the court must act sua sponte to give a specific verdict form." Davis, 233 Ill. 2d at 273. Nor can we overlook the express language in Smith, which, in the very least, raised the question as to whether its holding extended beyond the failure of a trial court to grant defendant's request to special verdict forms. See Smith, 233 Ill. 2d at 23, 28 ("specific verdict forms must be provided upon request and the failure to provide them is an abuse of discretion" (emphasis added); "because the presumption that arises from application of the `one good count rule' could work a prejudice against [defendants] at sentencing, the presumption cannot substitute for the jury's actual findings, at least where defendants have requested that the jury make specific findings with regard to the degree of the offense" (emphasis added); further noting that the presumption arising from the "one good count rule" could not be maintained because "the trial courts refused the defendants' request for separate verdict forms, which would have made the basis for the juries' finding clear" (emphasis added)).

Our view and the view of the plurality in Moore are supported by several other more recent decisions of this appellate court, which have similarly rejected extending Smith to situations wherein defendant did not request special verdict forms. See People v. Braboy, 393 Ill. App. 3d 100, 108 (2009) ("The Smith case as it stands today is limited to situations in which the trial court actually denied a request for separate verdict forms. [Citations.] If our supreme court wishes to expand this to a mandatory requirement that knowing, intentional, and felony murder always have separate verdict forms due to the different sentencing consequences, then it can do so. It is not our place to expand the holding of Smith"); People v. Mabry, 398 Ill. App. 3d 745, 755 (2010) ("we decline to extend Smith to situations where counsel did not request separate verdict forms"); see also People v. Allen, 401 Ill. App. 3d 840, 865 (2010) (holding that where defendant failed to object to a general verdict form, " Smith [was] inapplicable since Smith is limited to situations in which the trial court actually denied a request for separate verdict forms").

Accordingly, applying the holding of the Moore plurality and its progeny to the case at bar, we find that defendant here cannot establish that the trial court was required to sua sponte tender separate verdict forms to the jury, and that failure to do so amounted to error. Since there was no error, there can be no plain error. People v. Sims, 403 Ill. App. 3d 9, 20 (2010), citing People v. Bannister, 232 Ill. 2d 52, 65 (2008) ("without error, there can be no plain error"); see also People v. Hanson, 238 Ill. 2d 74, 115 (2010) ("Finding no error, our plain-error analysis ends here"); see also People v. Hommerson, 399 Ill. App. 3d 405, 412 (2010) ("Since we find * * * that no error occurred, we do not need to perform a plain-error analysis"); People v. Strickland, 399 Ill. App. 3d 590, 604 (2010) ("Because no error occurred, there can be no plain error"). Therefore, under the one-good-count rule, defendant is presumed guilty of the most serious offense of intentional murder and the trial court's judgment and sentence were proper. See Moore, 397 Ill. App. 3d at 566; Braboy, 393 Ill. App. 3d at 108; People v. Mabry, 398 Ill. App. 3d 745, 755 (2010); see also Allen, 401 Ill. App. 3d at 855-56.

Defendant contends in the alternative that we should find that counsel's failure to object to the general verdict form or to request a specific verdict form constituted ineffective assistance of counsel. Whether defendant was denied effective assistance of counsel is evaluated in accordance with the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct 2052, 2064 (1984). Under Strickland, to prevail on a claim of ineffective assistance, defendant must show both that (1) counsel's performance fell below an objective standard of reasonableness and (2) the deficient performance so prejudiced the defense as to deny defendant a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; see also People v. Bloomingburg, 346 Ill. App. 3d 308, 316-17 (2004). The failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the claim. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

As to the first prong, defendant must overcome a strong presumption that, under the circumstances, the challenged action or inaction of counsel was a valid trial strategy. Bloomingburg, 346 Ill. App. 3d at 317; 3 W. LaFave, Criminal Procedure § 11.10(c), at 715 (2d ed. 1999)). The reasonableness of counsel's actions must be evaluated from counsel's perspective at the time of the alleged error, and without hindsight, in light of the totality of circumstances, and not just on the basis of isolated acts. People v. Kelley, 304 Ill. App. 3d 628, 634 (1999). Because effective assistance refers to competent and not perfect representation ( People v. Odle, 151 Ill. 2d 168, 173 (1992)), mistakes in trial strategy or judgment will not, of themselves, render the representation incompetent ( People v. Palmer, 162 Ill. 2d 465, 476 (1994)).

Since the decisions in Smith and Davis, our appellate courts have repeatedly held that "counsel's decision to proceed with a general verdict form" in lieu of specific verdict forms, falls within the realm of trial strategy and will be considered objectively reasonable "where the law did not and does not place a mandatory burden on counsel to request separate verdict forms." Braboy, 393 Ill. App. 3d at 108; see also Mabry, 398 Ill. App. 3d at 755.

Defendant here has failed to overcome the presumption that counsel's failure to request special verdict forms was part of a reasonable trial strategy. Defense counsel's decision to proceed with a general verdict form could have been premised on the fear that giving the jury special verdict forms would make it easier for them to find defendant guilty of murder under the theory of felony murder, since, there was overwhelming evidence of defendant's participation in the underlying kidnaping, and since such a special verdict form would permit the jury to focus on felony murder separately from the intentional and knowing murder theories.

It would have been reasonable for defense counsel to conclude that his client had a better chance of prevailing on intentional murder since the focus on the element of intent would provide the jury with more latitude to reach a more lenient verdict. Counsel could have tactically concluded that it was better to present the jury with a general verdict form, which simply asks the jury whether defendant is "a murderess," rather than a special verdict form, which specifically itemizes the elements of felony murder asking the jury to determine whether she is "a kidnapper," and then permitting them to find her guilty of murder strictly on the mechanical basis of her involvement in the kidnaping. This is particularly true where tactically defense counsel could have felt that his client had an opportunity to get some degree of sympathy from the jury because of the provocation under which she committed the crime, namely, her discovery and belief that Alonzo had raped her infant daughter. Consequently, we find that defense counsel's decision to proceed with a general verdict form could very well have been the product of a sensible trial strategy. Braboy, 393 Ill. App. 3d at 108; see also Mabry, 398 Ill. App. 3d at 755.

Because defendant has failed to make the requisite showing of counsel's deficient performance under the first prong of the Strick-land analysis, we need not proceed to the prejudice prong. See Strick-land, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064 (noting that the failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the claim). For the aforementioned reasons, we conclude that defendant was not deprived of her constitutional right to effective assistance of counsel. See, e.g., Braboy, 393 Ill. App. 3d at 108; see also Mabry, 398 Ill. App. 3d at 755.

Defendant next contends that the court abused its sentencing discretion by imposing the maximum 60-year sentence for first degree murder. She specifically maintains that the trial judge failed to consider several mitigating factors demonstrating her rehabilitative potential, including her age at sentencing (25 years old), her lack of significant criminal history (only two minor convictions for possession of cannabis and drinking as a minor), and the steps that she took to take responsibility for her actions (turning herself into police voluntarily and confessing to the crime). More importantly, defendant contends that the trial court refused to consider the fact that she had learned that Alonzo had sexually assaulted her one-year-old daughter as a mitigating factor on her behalf. Rather, defendant maintains, the trial judge used this fact as an aggravating factor to find that defendant deserved the maximum sentence because she "unilaterally decided to take the law into her own hands" to punish Alonzo. For the reasons that follow, we agree.

Generally, where, as here, a sentence imposed by the trial court is within the statutory limits permitted for the felony of which defendant was convicted ( 730 ILCS 5/5-8-1(a)(3) (West 2000)), we will not disturb the sentence absent an abuse of discretion by the court. People v. Coleman, 166 Ill. 2d 247, 258 (1995). The reasoning is, of course, that the trial court is in a better position to consider, among other things, the credibility, demeanor, general moral character, mentality, social environment, habits and age of the defendant. People v. O'Neal, 125 Ill. 2d 291, 298 (1988). "However, the mere fact that the trial court has a superior opportunity to make a determination concerning final disposition and punishment of a defendant does not imply that a particular sentence imposed is always just and equitable." O'Neal, 125 Ill. 2d at 298. Accordingly, an abuse of discretion will be found "even where the sentence is within the statutory limitations, * * * if that sentence is greatly at variance with the purpose and spirit of the law." People v. Steffens, 131 Ill. App. 3d 141, 151 (1985).

The Illinois Constitution requires that penalties be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. Ill. Const. 1970, art. I, § 11; People v. Center, 198 Ill. App. 3d 1025, 1032-33 (1990). "This constitutional mandate calls for the balancing of the retributive and rehabilitative purposes of punishment." People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). In determining the appropriate sentence, the trial court must carefully consider all of the factors in aggravation and mitigation, including, inter alia, the defendant's age, demeanor, habits, mentality, credibility, criminal history, general moral character, social environment, and education, as well as the nature and circumstances of the crime and of defendant's conduct in the commission of it. Quintana, 332 Ill. App. 3d at 109.

In the present case, the comments of the trial judge in imposing the sentence reflect failure by the trial judge to recognize the full nature and extent of the provocation experienced by defendant upon her determination that Alonzo had apparently raped her infant daughter. While the trial judge may have questioned whether such molestation had occurred, he never questioned or attempted to negate the fact that defendant was sincere in her belief that such molestation did occur. Nor did that trial judge appear to fully recognize that the factual basis for this provocation was corroborated by the disclosure of codefendant Jeanette at the scene, that the same act had been committed by Alonzo against her daughter, and that consequently the belief of defendant in this provocation was enhanced.

Section 5-5-3.1(a) of the Unified Code of Corrections mandates that in imposing a sentence the trial judge consider as a mitigating factor whether defendant acted under "strong provocation," or whether there were circumstances which would "excuse or justify the defendant's criminal conduct" even if those circumstances would have been "insufficient to establish a defense," or reduce the charge from first degree to second degree murder. 730 ILCS 5/5-5-3.1(a) (West 2002); see also People v. Merritte, 242 Ill. App. 3d 485, 492 (1993) ("strong provocation as a mitigating factor at sentencing encompasses a wider range of conduct than that defined as serious provocation under the second degree murder statute"). The language in section 5-5-3.1 of the Unified Code of Corrections is "mandatory, rather than directory," and the "sentencing authority may not refuse to consider relevant evidence presented in mitigation." People v. Heinz, 391 Ill. App. 3d 854, 865 (2009).

While the term "strong provocation" is not defined in the Unified Code of Corrections, the similar term "serious provocation" has a well-established meaning under Illinois law. Merritte, 242 Ill. App. 3d at 492. Serious provocation is defined as "`conduct sufficient to excite an intense passion in a reasonable person.'" People v. Banks, 227 Ill. App. 3d 462, 473 (1992), quoting Ill. Rev. Stat. 1987, ch. 38, par. 9-2(b); see also People v. Wilks, 175 Ill. App. 3d 68, 75 (1988) ("the law acknowledges the mitigating effect of human weakness and intense passion * * * where the person * * * acted under a sudden and intense passion resulting from serious provocation sufficient to excite the passion of a reasonable person"). When considering whether an individual has acted under serious provocation sufficient to reduce the offense of first degree murder to second degree murder, the categories of serious provocation recognized by our courts are: substantial physical injury or assault, mutual quarrel or combat, illegal arrest and spousal adultery. Merritte, 242 Ill. App. 3d at 492. Serious provocation arising from substantial physical injury or assault extends to injuries to family members, including children. See, e.g., People v. Rice, 351 Ill. 604, 609 (1933) (evidence that victim slapped defendant's child supported conviction for manslaughter); Commonwealth v. Berry, 461 Pa. 233, 238, 336 A.2d 262, 264 (1975) (held that "threatened or immediate infliction of serious injury upon a parent, spouse or child" sufficient provocation to reduce the killing to voluntary manslaughter); Paz v. State, 777 So. 2d 983 (Fla. App. 2000) (reducing murder conviction to voluntary manslaughter where defendant killed the victim after defendants' wife indicated that the victim had sexually assaulted her); People v. Brooks, 185 Cal. App. 3d 687, 689-92, 230 Cal. Rptr. 86, 90 (1986) (holding that defendant was entitled to a voluntary manslaughter instruction for killing his brother's murderer after learning of the murder); see also 2 W. LaFave, Substantive Criminal Law § 15.2(b)(7), at 502 (2d ed. 2003) ("just as a reasonable man may be provoked by some sorts of conduct which inflict injury upon himself, so too he may be provoked by the same sorts of conduct which causes injury to his close relatives").

In the present case, contrary to the State's assertion, the record effectively demonstrates that instead of focusing on the undeniably egregious nature of the provocation, the trial judge chose to focus on the defendant's actions responding to that provocation as vigilantism, thereby warranting higher punishment. Obviously, vigilante justice renders the perpetrator culpable and subject to legal penalties imposed. But, in imposing these penalties the trial judge is nevertheless under a duty to consider the fact that the vigilante justice taken was neither casual nor random but rather committed in response to provocation that objectively would be as extreme as any mother of any child could sustain. See, e.g., S. Morse, Undiminished Confusion in Diminished Capacity, 75 J. Crim. L. Criminology 1, 34 (1984) (noting that most parents would become enraged at anyone who harmed or sexually assaulted their child); see also Lee v. United States, 959 A.2d 1141, 1144-45 (D.C. App. 2008) (defendant was entitled to a voluntary manslaughter instruction where there was evidence that he stabbed to death his 11-year-old daughter's molester after the child told the defendant that the adult man had kissed and licked her); State v. Munoz, 113 N.M. 489, 827 E2d 1303 (App. 1992) (defendant entitled to voluntary manslaughter instruction where he killed father-in-law after learning father-in-law sexually molested daughter); Toler v. State, 152 Tenn. 1, 260 S.W. 134 (1924) (father adequately provoked where he killed a close family friend after learning that his friend had eoaxed the father's 15-year-old daughter into drinking whiskey so he could sexually abuse the child in a field near father's home).

Moreover, in failing to give due recognition to the provocation, the trial judge failed to recognize that in light of such provocation, there was very little, if any, likelihood that defendant would be a recidivist offender, so as to permit the full breadth of her rehabilitative potential. See 111. Const. 1970, art. I, § 11 ("[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship" (emphasis added)); see also 730 ILCS 5/1-1-2 (West 2002) ("[t]he purpose of the [Unified] Code of Corrections is to, [ inter alia,] * * * permit the recognition of differences in rehabilitation possibilities among individual offenders * * * and restore offenders to useful citizenship" (emphasis added)); see also People v. Lewis, 89 Ill. App. 3d 15, 21 (1980) (noting that fact that defendant is not likely to repeat his failure is factor to be considered by trial court in imposing a sentence); see also People v. Glass, 98 Ill. App. 3d 641, 644 (1981) (noting that in imposing a sentence the defendant's motive for committing the offense is relevant to whether the defendant's conduct was a result of circumstances unlikely to recur); see also People v. Black, 223 Ill. App. 3d 630, 634 (1992) (noting that it was proper for the trial court for sentencing purposes to consider whether defendant's character showed he was unlikely to commit future crimes and whether circumstances were unlikely to recur).

The State nevertheless contends that the trial court properly sentenced defendant to the maximum sentence permitted by statute simply on the basis of the brutality of the crime. While we acknowledge that "the seriousness of the crime" has been held to be "the most important factor in fashioning an appropriate sentence" ( People v. Weatherspoon, 394 Ill. App. 3d 839, 862 (2009)), this does not relieve the sentencing judge from considering the requisite mitigating factors as articulated under the Unified Code of Corrections (see People v. Markiewicz, 246 Ill. App. 3d 31, 55 (1993)). We do not approve or purport in any way to sanction the conduct of this defendant in the murder of Alonzo nor do we condone the brutal manner by which it was committed. However, it would seem that accountability for that conduct can be reflected in a sentence that would nevertheless still recognize the impact of the vengeful pain and anger experienced by a mother upon discovering the sexual assault perpetrated by the adult victim on her infant daughter, as well as the fact that defendant, acting solely out of such egregious provocation, was unlikely to repeat the offense in the future. Rather, in sentencing defendant, the trial judge left no room for either of these factors, maximizing the sentence to the full extent permitted by statute, and on top of that adding a seven-year sentence for the underlying offense to be served consecutively. Our courts have never been reluctant to reduce a sentence on appeal, despite the serious nature of the underlying crime, where a trial court has neglected its duty to consider the relevant mitigating factors. See, e.g., People v. Crews, 42 Ill. 2d 60, 66 (1969) (holding that even though society was rightly outraged by the nature of the offense, in that case the murder of a child, the defendant's sentence for murder had to be reduced in light of the fact that she had no prior criminal background; noting that "in determining punishment for the crime, care must be taken to insure that the punishment is appropriate and just," and that this must "include a consideration of background and circumstances which affect punishment"); see also People v. Maggette, 195 Ill. 2d 336, 355 (2001) (holding that 10-year prison sentence on residential burglary conviction was manifestly disproportionate to the nature of the offense, despite the "appalling and harmful nature" of defendant's alleged sexual conduct toward the victim sleeping on sofa, and sentence would be reduced on appeal to 5 years); People v. Merritt, 53 Ill. App. 3d 929, 930-32 (1977) (holding that although defendant had committed "repeated violent criminal acts," "in the interest of his rehabilitation and so that the appearance of vengeance may be avoided" four concurrent sentences of 40 to 65 years imposed on conviction of two counts of rape and two counts of aggravated kidnaping would be reduced to concurrent terms of 15 to 45 years where defendant was only 20 years old and his only prior conviction was misdemeanor); see also People v. Blackwell, 171 Ill. 2d 338, 364 (1996), quoting, People v. Johnson, 128 Ill. 2d 253, 282 (1989) (holding that despite the "seriousness of defendant's actions" in committing the murder, defendant's sentence had to be reduced because "`defendant ha[d] led a relatively blameless life except for this one explosive episode'").

Accordingly, for the aforementioned reasons, we remand to the circuit court for a new sentencing hearing with instructions to the trial judge to give due reflection and implementation of the relevant mitigating factors. Based upon these mitigating factors, which include defendant's undeniably strong provocation, her lack of any venial criminal record, and the manifest unlikelihood of any repetition of this crime, we strongly believe that a proper sentence for this defendant would be at the minimal sentencing level for first degree murder, to which we would recommend that the present sentence be reduced.

Defendant finally contends, and the State concedes, that the mittimus must be corrected to reflect that she was convicted of one count of first degree murder ( 720 ILCS 5/9-1 (West 2002)) and one count of kidnaping ( 720 ILCS 5/10-1 (West 2002)) rather than two counts of first degree murder, pursuant to sections 9-1(a)(1) and 9-1(a)(3) of the Criminal Code of 1961 (the Criminal Code) (720 ILCS 5/91(a)(1), (a)(3) (West 2002)). The parties agree that the mittimus was made in error and does not properly reflect the jury's verdict or the sentence imposed by the court.

The mittimus currently reflects that defendant was convicted of one count of first degree murder pursuant to section 9-1(a)(1) of the Criminal Code (intentional murder), and sentenced to 60 years' imprisonment. It further reflects that defendant was also convicted of one count of first degree murder pursuant to section 9-1(a)(3) of the Criminal Code (felony murder), and sentenced to seven years' imprisonment. The parties agree that this is incorrect and that defendant was convicted of only one count of first degree murder ( 720 ILCS 5/9-1 (West 2002)) and that the second conviction and seven-year sentence were for kidnaping under section 10-1 of the Criminal Code ( 720 ILCS 5/10-1 (West 2002)).

Accordingly, pursuant to Supreme Court Rule 615(b)(1), we order the clerk of the circuit court to make the necessary corrections as far as eliminating the conviction for felony murder, and replacing it with a conviction for kidnaping. 134 Ill. 2d R. 615(b)(1) ("[o]n appeal the reviewing court may * * * modify the judgment or order from which the appeal is taken"); see also People v. McCray, 273 Ill. App. 3d 396, 403 (1995) ("[r]emandment is unnecessary since this court has the authority to directly order the clerk of the circuit court to make the necessary corrections"); People v. DeWeese, 298 Ill. App. 3d 4, 13 (1998) (correcting the mittimus to reflect the proper conviction). We, however, remand for a new sentencing hearing with respect to the conviction of first degree murder.

Affirmed in part and reversed and remanded in part; mittimus corrected.

McBRIDE and ROBERT GORDON, JJ., concur.