# People v. Lerch > Illinois Supreme Court · May 22, 1972 · 52 Ill. 2d 78 URL: https://www.frixlaw.com/law-library/cases/9885087 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DONALD L. LERCH, Appellant - **Court:** Illinois Supreme Court - **Decided:** May 22, 1972 - **Citations:** 52 Ill. 2d 78; 284 N.E.2d 293; 1972 Ill. LEXIS 312 - **Precedential status:** Published - **Opinion:** Dissent by Underwood - **Judges:** William J. Scott - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9885087 ## Opinion text MR. CHIEF JUSTICE UNDERWOOD, dissenting; I must once again dissent from the court’s disposition of this multiple sentencing problem. The troublesome aspect of these cases is the fact that a course of conduct may involve the commission of several criminal offenses. Even though all of these offenses were known to prosecutors, they formerly and not infrequently elected to prosecute each offense separately, particularly if not satisfied with the disposition made in the initial case. (People v. Ciucci, 8 Ill.2d 619 , affirmed sub nom. Ciucci v. Illinois, 356 U.S. 571 , 2 L.Ed.2d 983 , 78 S.Ct. 839 .) Several years after that decision the present “Criminal Code of 1961” was enacted by the General Assembly, and in People v. Golson, 32 Ill.2d 398, 411 , our court quoted section 3 — 3 (Ill.Rev.Stat. 1963, ch. 38, par. 3 — 3) in holding that considerations of fundamental fairness to an accused had prompted enactment of section 3 — 3 which precluded separate indictments and trials where both “defendants were tried twice for the identical misconduct —the participation in an illegal venture in which a co-conspirator killed two men.” There can be no question, however, that the court considered that the defendants could have been prosecuted for both murders, for at page 410 appears the language: “*** it is clear that the two indictments charged separate and distinct offenses ***.” It is also clear from the Committee Comments following section 3 — 3 (S.H.A., ch. 38, par. 3 — 3) that the principal concern of the Committee lay with the seriatim prosecution of multiple offenses arising from the same course of conduct. In fact, the Comments (pp. 202-203) indicate the Committee considered but rejected a suggestion that the prosecution in such instances be limited to a single sentence. That rejection is to me quite persuasive of the conclusion that the drafters of the Code did not intend to incorporate in 1 — 7(m) the rationale of People v. Schlenger, 13 Ill.2d 63 , despite the contrary indication in the Comments referred to by the majority. The Committee did intend to eliminate the separate prosecutions and did so in section 3 — 3 by requiring all known offenses to be prosecuted in a single prosecution. Schlenger was not bottomed on any constitutional argument and was predicated solely on acceptance of that defendant’s argument that his chances of parole were adversely affected by multiple concurrent sentences. Since there is, to the best of my knowledge, no constitutional prohibition against multiple concurrent sentences arising from the same course of conduct or, indeed, from the same act, and since the 1961 Code actually rejects the Schlenger rationale, rather than codifying it, this court is certainly no longer restricted by that decision. Nor should we attempt to devise a rule deemed by some of us more desirable than adherence to the statutory scheme. Our willingness to permit multiple concurrent sentences only where the offenses were “independently motivated” or are based upon a course of conduct which is “divisible” finds no statutory support and leads only to the inconsistency manifest in our opinions since enactment of the 1961 Code. That absence of harmony, however, is, in my judgment, due to the court’s failure to recognize that there is nothing in section 3 — 3 or 1 — 7(m) prohibiting, or manifesting any intent to prohibit, simultaneous prosecutions for multiple offenses “based on the same act” (3 — 3(b)), and that the sole purpose of 1 — 7(m) is to proscribe consecutive sentences for those offenses except where they “did not result from the same conduct.” Our problem has also, in part, been due to a preoccupation with ad hoc opinions which seemingly produced a fair result in a given case but have created a most inconsistent pattern due, in my judgment, solely to this court’s refusal to recognize that there is no statutory prohibition against concurrent sentences in any case. I do not believe there to be any constitutional prohibition against such sentences, but, if the majority of this court believes there is, then this decision should be bottomed upon that ground. The remedy lies in adhering to what seems to me to be the clear statutory intent: Inclusion in a single prosecution of multiple offenses known to a prosecutor and arising from the same conduct (3 — 3(a) and (b)) and the imposition of only concurrent sentences except where convictions have not resulted from the same conduct (1 — 7(m)). I should, perhaps, add that I would think it desirable to have only one sentence for several offenses arising from the same act, and, perhaps, only a single sentence for multiple offenses arising from the same “series of acts” or what is essentially the “same transaction.” But in the absence of constitutional prohibition of concurrent sentences in those cases, the choice of a desirable sentencing scheme is for the legislature to make. It has done so by permitting concurrent sentences. We should respect that choice. MR. JUSTICE RYAN joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9885087. Public record. Not legal advice.