People v. Price

Opinion

NO. 4-06-0036 Filed: 12/12/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County ANN M. PRICE, ) No. 02CF719 Defendant-Appellant. ) ) Honorable ) Leslie J. Graves, ) Judge Presiding. _________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

In August 2002, a grand jury indicted defendant, Ann M.

Price, for the offenses of theft (720 ILCS 5/16-1(a)(2) (West

2002)) and official misconduct (720 ILCS 5/33-3 (West 2002)). On

October 4, 2005, defendant entered an open guilty plea to one

count of theft, a Class A misdemeanor, which was accepted by the

court, apparently without objection by the State. On October 5, 2005, a jury found defendant guilty of official misconduct. In

December 2005, the trial court sentenced defendant on the

official-misconduct conviction to 2 years' probation and 200

hours of community service. Defendant appeals, arguing the

acceptance of her guilty plea to the theft charge barred the State's prosecution on the official-misconduct charge. We

affirm.

I. BACKGROUND

While employed by the Illinois Environmental Protection

Agency (IEPA), defendant took a state vehicle to Chicago, at-

tended a Barry Manilow concert, and spent the night at a hotel. After she returned to Springfield, she submitted a travel voucher

to her employer for her travel and lodging expenses, claiming she

had attended a job-fair conference sponsored by the Chicago

Botanic Gardens. When later confronted about the situation,

defendant admitted she did not go to Chicago to attend a job

conference and that she had fabricated a schedule for the non-

existent conference to attach to her travel voucher.

In August 2002, a grand jury indicted defendant for (1)

theft (720 ILCS 5/16-1(a)(2) (West 2002)) for falsifying and

submitting travel documents to IEPA for reimbursement and (2)

official misconduct (720 ILCS 5/33-3 (West 2002)) for falsifying

and submitting travel documents for reimbursement.

On October 4, 2005, before defendant's trial began,

defendant pleaded guilty to theft, and the trial court accepted

defendant's plea, apparently without any objection by the State.

The following day, at the close of all evidence in the case,

defendant moved for a directed verdict, arguing the counts for

theft and official misconduct were based on the same act, and therefore, defendant could not be prosecuted on the official-

misconduct charge because she had pleaded guilty to theft.

The trial court denied defendant's motion for a di-

rected verdict. The jury then found defendant guilty of official

misconduct. The trial court sentenced defendant as stated for

official misconduct. The record contains no indication defendant

was sentenced for theft. Defendant appealed.

- 2 - II. ANALYSIS

On appeal, in her initial brief, defendant argues her

conviction for official misconduct violates the one-act, one-

crime doctrine because she previously pleaded guilty to theft, a

charge based on the same acts, falsifying and submitting travel

documents for reimbursement, as the official-misconduct charge.

Defendant also argued that section 3-4(a) of the Criminal Code of

1961 (Code) (720 ILCS 5/3-4(a) (West 2002)) barred her prosecu-

tion for official misconduct. Finally, in her reply brief,

defendant argues her prosecution for official misconduct violated

the Illinois double-jeopardy clause. Defendant boils down the

gist of her argument in the last line of her reply brief by

stating, "Under Illinois law, the State could not proceed with

the official[-]misconduct prosecution after the court accepted

[defendant's] guilty plea to the lesser[-]included offense

arising from the same act."

A. Forfeiture

The State first argues defendant forfeited her argument because the record does not contain a report or record of defen-

dant entering her guilty plea on the theft charge. The State

cites People v. Raczkowski, 359 Ill. App. 3d 494, 496, 834 N.E.2d

596, 598-99 (2005), and People v. Toft, 355 Ill. App. 3d 1102,

1105, 824 N.E.2d 309, 312 (2005), for the proposition that an

issue relating to the conduct of a hearing or proceeding is not

subject to review absent a report or record of the proceeding.

However, the issue in this case does not relate to the

- 3 - conduct of a hearing or proceeding. While the record contains

neither a transcript of the plea proceeding nor a docket entry

reflecting the plea, it is clear from the record defendant

pleaded guilty to theft before her trial on the official-miscon-

duct charge began, and the trial court accepted her plea. As a

result, defendant has not forfeited this issue, and we must

address defendant's substantive arguments.

B. Double Jeopardy

We first address defendant's argument that her prosecu-

tion for official misconduct violated the Illinois Constitution's

double-jeopardy clause (Ill. Const. 1970, art. I, §10) because

the court had previously accepted her guilty plea to theft. In

determining whether a defendant's Illinois double-jeopardy rights

have been violated, Illinois courts look to how the United States

Supreme Court interprets the federal double-jeopardy clause (U.S.

Const., amend. V). People v. Sienkiewicz, 208 Ill. 2d 1, 5, 802

N.E.2d 767, 771 (2003).

The prohibition against double jeopardy protects

against three distinct abuses: (1) a second prosecution for the

same offense after acquittal; (2) a second prosecution for the

same offense after conviction; and (3) multiple punishments for

the same offense. Ohio v. Johnson, 467 U.S. 493, 498, 81 L. Ed. 2d 425, 433, 104 S. Ct. 2536, 2540 (1984). According to the

United States Supreme Court, the reason the State is barred from

retrying a defendant after he is acquitted or convicted is to

ensure that the State does not make repeated attempts to convict

- 4 - an individual. Johnson, 467 U.S. at 498-99, 81 L. Ed. 2d at 433,

104 S. Ct. at 2540. The Illinois Supreme Court has stated that

the protection against double jeopardy afforded by the Illinois

Constitution is no greater than that provided by the United

States Constitution. People v. Ortiz, 196 Ill. 2d 236, 253, 752

N.E.2d 410, 421 (2001).

While the list of possible scenarios where the State

would be barred from prosecuting a defendant due to the double-

jeopardy clause are too numerous to list here, we list a few such

situations for illustrative purposes. The United States Supreme

Court has held that the double-jeopardy clause prohibits a State

from charging a defendant with a new charge after a defendant had

already pleaded guilty and been sentenced on a previous charge

for a lesser-included offense. Brown v. Ohio, 432 U.S. 161, 53

L. Ed. 2d 187, 97 S. Ct. 2221 (1977). The Illinois Supreme Court

has held that the State is barred by double jeopardy from insti-

tuting reckless-homicide charges against a defendant who previ-

ously pleaded guilty and was sentenced on a reckless-driving

charge, which is an included offense of reckless homicide, when

both offenses arose from the same act. Sienkiewicz, 208 Ill. 2d at 3, 11, 802 N.E.2d at 769, 774. In addition, the United States

Supreme Court has held that a finding of guilt by a jury of an

included offense is an implied acquittal of a greater offense

based on the same act when a defendant is charged with the

greater offense. Green v. United States, 355 U.S. 184, 190-91, 2

L. Ed. 2d 199, 206, 78 S. Ct. 221, 225 (1957). Further, the

- 5 - United States Supreme Court has held that double jeopardy will

bar the retrial of a defendant if a mistrial is declared as a

result of the prosecutor's intended provocation. Oregon v.

Kennedy, 456 U.S. 667, 670, 72 L. Ed. 2d 416, 420-21, 102 S. Ct.

2083, 2086 (1982).

However, the double-jeopardy clause does not protect a

defendant from a subsequent prosecution if the defendant has

successfully appealed his first conviction, unless his conviction

was reversed because of insufficient evidence. Ortiz, 196 Ill.

2d at 253, 752 N.E.2d at 421-22. In addition, the double-jeop-

ardy clause does not prohibit the State from prosecuting a

defendant for multiple offenses, including greater- and lesser-

included offenses, arising out of the same act. Johnson, 467

U.S. at 500, 81 L. Ed. 2d at 434, 104 S. Ct. at 2541. Further,

if a defendant pleads guilty to an offense in exchange for the

State dismissing a more serious charge, the State is free to

reinstate the more serious charge if the defendant's guilty plea

is vacated on appeal. People v. McCutcheon, 68 Ill. 2d 101, 105-

07, 368 N.E.2d 886, 888-89 (1977).

The issue in this case is whether the State was barred

from pursuing the pending official-misconduct charge against

defendant after the trial court accepted her guilty plea to

theft, which was part of the same prosecution. Defendant cites

People v. Valentine, 122 Ill. App. 3d 782, 461 N.E.2d 1388 (1984), and People v. Brener, 357 Ill. App. 3d 868, 830 N.E.2d

692 (2005), in support of her argument that double jeopardy

- 6 - barred the State from prosecuting her on the official-misconduct

charge.

In Valentine, the State originally charged defendant

with three counts of armed robbery in May 1983. Valentine, 122

Ill. App. 3d at 783-84, 461 N.E.2d at 1389. On June 27, 1983,

the State charged the defendant with three counts of robbery

based on the same conduct as alleged in the armed-robbery counts.

Valentine, 122 Ill. App. 3d at 784, 461 N.E.2d at 1389. That

same day, the defendant pleaded guilty to the robbery charge, and

the trial court accepted his plea and set a sentencing hearing

for July 19, 1983. Valentine, 122 Ill. App. 3d at 784, 461

N.E.2d at 1389. In July 1983, the trial court found the defen-

dant guilty of the three counts of armed robbery. On July 19,

1983, the court sentenced the defendant on the armed-robbery

counts and vacated the judgments on the robbery counts because

they were lesser-included offenses of armed robbery. Valentine,

122 Ill. App. 3d at 784, 461 N.E.2d at 1389.

On appeal, the defendant argued that his prosecution on

the armed-robbery charges violated his constitutional (U.S.

Const., amend. V; Ill. Const. 1970, art. I, §10) and statutory

(720 ILCS 5/3-4 (West 2004) (formerly Ill. Rev. Stat. 1981, ch.

38, par. 3-4)) guarantees against double jeopardy. Valentine, 122 Ill. App. 3d at 784, 461 N.E.2d at 1389. This court held

that the "defendant's prosecution on the armed[-]robbery charge

was barred because the trial court had previously accepted

defendant's guilty plea to the robbery charge." Valentine, 122

- 7 - Ill. App. 3d at 786, 461 N.E.2d at 1390.

This court's decision in Valentine would appear to

control the outcome in this case. However, when this court

decided Valentine, it did not have the guidance the United States

Supreme Court later provided on this issue. In Johnson, the

defendant was indicted for involuntary manslaughter, grand theft,

aggravated robbery, and murder as a result of the death of a man

and the theft of property from the man's apartment. Johnson, 467

U.S. at 494, 81 L. Ed. 2d at 430, 104 S. Ct. at 2538. The

defendant pleaded guilty to involuntary manslaughter and grand

theft but pleaded not guilty to aggravated robbery and murder.

Johnson, 467 U.S. at 494, 81 L. Ed. 2d at 430, 104 S. Ct. at

2538. Although the State objected, the trial court accepted the

defendant's pleas to the lesser offenses, sentenced the defendant

to a term of imprisonment, and then granted the defendant's

motion to dismiss the two more serious charges, finding his

guilty pleas to the lesser charges barred the State from prose-

cuting the defendant on the more serious charge pursuant to the

double-jeopardy prohibitions of the fifth and fourteenth amend-

ments of the United States Constitution. Johnson, 467 U.S. at 494, 81 L. Ed. 2d at 430, 104 S. Ct. at 2538.

The United States Supreme Court disagreed, holding that

prosecuting the defendant on the two more serious charges to

which he did not plead guilty would not constitute the type of

multiple prosecutions prohibited by the double-jeopardy clause.

- 8 - 2538. The Court emphasized that the four charges in Johnson were

part of a single prosecution (Johnson, 467 U.S. at 501, 81 L. Ed.

2d at 434, 104 S. Ct. at 2541-42), which is also true in the case

at bar. According to the Court, trial proceedings are not

capable of being "infinitely subdivided." A determination of

guilt and punishment on a single count of a multicount indictment

does not immediately raise "a double[-]jeopardy bar to continued

prosecution on any remaining counts that are greater[-] or

lesser[-]included offenses of the charge just concluded."

Johnson, 467 U.S. at 501, 81 L. Ed. 2d at 434, 104 S. Ct. at

2542.

The Court further stated that the principles of final-

ity and prosecutorial overreaching were not present in Johnson.

Johnson, 467 U.S. at 501, 81 L. Ed. 2d at 435, 104 S. Ct. at

2542. According to the Court, the State did not violate defen-

dant's double-jeopardy rights by going forward with the remaining

counts of the indictment because the defendant had only offered

to resolve part of the charges against him. Johnson, 467 U.S. at

501-02, 81 L. Ed. 2d at 435, 104 S. Ct. at 2542. In addition,

the Court noted the State objected to disposing of any of the

counts against the defendant without a trial. Johnson, 467 U.S. at 501, 81 L. Ed. 2d at 435, 104 S. Ct. at 2542.

Further, the Court stated that the defendant had not

been exposed to conviction on those charges to which he did not

plead guilty nor was the State given the chance to marshal its

resources and evidence more than once or perfect its presentation

- 9 - of its case through a trial. According to the Court:

"The acceptance of a guilty plea to lesser[-

]included offenses while charges on the

greater offenses remain pending, moreover,

has none of the implications of an 'implied

acquittal' which results from a verdict con-

victing a defendant on lesser[-] included

offenses rendered by a jury charged to con-

sider both greater[-] and lesser[-]included

offenses. [Citations.] There simply has

been none of the governmental overreaching

that double jeopardy is supposed to prevent."

Johnson, 467 U.S. at 501-02, 81 L. Ed. 2d at

435, 104 S. Ct. at 2542.

The Court finally stated that regardless of the trial court's

acceptance of the defendant's guilty pleas, the defendant "should

not be entitled to use the [d]ouble[-][j]eopardy [c]lause as a

sword to prevent the State from completing its prosecution on the

remaining charges." Johnson, 467 U.S. at 502, 81 L. Ed. 2d at 435, 104 S. Ct. at 2542. The same is true in the instant case.

Johnson is distinguishable from the case at bar in one respect. In Johnson, the State objected to the defendant's

guilty plea. In this case, the State apparently did not.

However, one leading treatise on criminal procedure has stated as

follows:

"In cases where there is no agreement to

- 10 - dismiss a pending greater charge in exchange

for a plea on a lesser, and a court accepts a

defendant's plea to the lesser charge without

objection by the government, the single pros-

ecution theory of Johnson supports the con-

clusion of most courts that the interests

protected by the constitutional prohibition

against successive prosecutions are not im-

plicated if a judge either rejects the plea

prior to sentencing or allows the government

to continue its prosecution of the greater

charge." (Emphasis omitted.) 5 W. LaFave,

J. Israel & N. King, Criminal Procedure

§25.1, at 281 (2d ed. 1999).

One such case is the Fifth District's decision in

People v. Foster, 176 Ill. App. 3d 406, 531 N.E.2d 93 (1988). In

Foster, the State charged the defendant with reckless driving.

Foster, 176 Ill. App. 3d at 408, 531 N.E.2d at 94. The defendant

had also been charged with two traffic offenses as a result of

the same accident. Foster, 176 Ill. App. 3d at 408, 531 N.E.2d at 94. The defendant and the State agreed to try all the charges

together. Foster, 176 Ill. App. 3d at 408, 531 N.E.2d at 94.

The defendant then pleaded guilty to the two traffic offenses.

Foster, 176 Ill. App. 3d at 408, 531 N.E.2d at 94. The trial

court accepted his pleas and fined him $325. Foster, 176 Ill.

App. 3d at 408, 531 N.E.2d at 94. The defendant then moved to

- 11 - dismiss his reckless-driving charge, arguing this charge would

constitute double jeopardy because he had already pleaded guilty

to driving too fast for conditions. Foster, 176 Ill. App. 3d at

408, 531 N.E.2d at 94. The court granted the defendant's motion.

Foster, 176 Ill. App. 3d at 408, 531 N.E.2d at 94. The appellate

court reversed, holding the driving-too-fast-for-conditions

charge was not a lesser-included offense of reckless driving and,

therefore, double jeopardy did not apply. Foster, 176 Ill. App.

3d at 411, 531 N.E.2d at 96. However, the court went on and

stated that even if the driving-too-fast-for-conditions charge

was a lesser-included offense of reckless driving, double jeop-

ardy would still not bar the prosecution of the reckless-driving

charge because it was pending when the defendant entered his

guilty plea on the other charge. Foster, 176 Ill. App. 3d at

411, 531 N.E.2d at 96. The court stated that, like the Supreme

Court's decision in Johnson, "the acceptance of the defendant's

guilty pleas had none of the implications of an 'implied acquit-

tal' that would result from a jury verdict convicting defendant

of a lesser[-]included offense." Foster, 176 Ill. App. 3d at 412, 531 N.E.2d at 96. While we are not bound by the Fifth

District's reasoning in Foster, we find it persuasive. However, defendant points us to the Second District's

decision in Brener as support for his argument that double

jeopardy did bar her prosecution for official misconduct. In

Brener, the defendant was arrested for driving under the influ-

ence of alcohol after a one-hour drive through three counties in

- 12 - June 2003. Brener, 357 Ill. App. 3d at 869, 830 N.E.2d at 693.

In one of these counties, Jo Daviess, the defendant ran over his

sister, causing her serious injuries. Brener, 357 Ill. App. 3d

at 869-70, 830 N.E.2d at 693. In Winnebago County, the defendant

was charged with two alternative counts of driving under the

influence of alcohol. That same day, a Jo Daviess County infor-

mation charged the defendant with two alternative counts of

aggravated driving under the influence of alcohol as a result of

injuring his sister. Brener, 357 Ill. App. 3d at 870, 830 N.E.2d

at 693. On July 16, 2003, the defendant pleaded guilty to the

Winnebago County charges. Brener, 357 Ill. App. 3d at 870, 830

N.E.2d at 693. Nine days later, a Jo Daviess County grand jury

indicted the defendant on the aggravated-driving-under-the-

influence charges that were the basis of the prior information.

Brener, 357 Ill. App. 3d at 870, 830 N.E.2d at 693. In January

2004, the trial court granted defendant's motion to dismiss the

aggravated-battery charges on double-jeopardy grounds. Brener,

357 Ill. App. 3d at 870, 830 N.E.2d at 693.

On appeal, the State argued the trial court erred in

dismissing the Jo Daviess County case based on double jeopardy

because defendant's actions while driving through the three

counties did not constitute one continuous act. Brener, 357 Ill. App. 3d at 870, 830 N.E.2d at 693. The appellate court dis-

agreed. Brener, 357 Ill. App. 3d at 871, 830 N.E.2d at 694.

The State also argued that, because the prosecutorial

intent of the two counties was different, double jeopardy should

- 13 - not bar the prosecution by Jo Daviess County. Brener, 357 Ill.

App. 3d at 871, 830 N.E.2d at 694. The State also expressed

concern that, if the appellate court allowed the trial court's

decision to stand, it would be allowing those defendants who are

charged with offenses based on the same act in more than one

county to perform a preemptive strike against the county pursuing

a more serious charge by pleading guilty to the offense in the

other county. Brener, 357 Ill. App. 3d at 871, 830 N.E.2d at

694-95.

The appellate court held the prosecutorial intent of

the different counties could not be differentiated because both

counties were equally subordinate to the State's double-jeopardy

prohibition. Brener, 357 Ill. App. 3d at 872, 830 N.E.2d at 695.

According to the appellate court:

"[T]o allow each county to prosecute multiple

offenses carved from the same physical act,

simply because the intent of each county's

prosecution is different, would be to annihi-

late the prohibition against double jeopardy.

Furthermore, as equal, subordinate instrumen-

talities of Illinois, the counties must coor-

dinate their efforts to prosecute an offender

when that prosecution arises from the same

act." Brener, 357 Ill. App. 3d at 872, 830 N.E.2d at 695.

The court went on to find the previously prosecuted charges for

- 14 - driving under the influence were lesser-included offenses of

aggravated driving under the influence.

While all of the charges in Brener were pending at the

same time, Brener is distinguishable from the instant case,

Johnson, and Foster in one major respect. Brener dealt with two

separate prosecutions in two separate counties. Further,

Winnebago County finished its prosecution of the defendant prior

to the defendant going on trial in Jo Daviess County. In the

instant case, Johnson, and Foster, the plan was to try all of the

charges at the same time. Unlike the defendant in Brener, whose

charges were divided by two counties of the State, the defendants

in the instant case, Johnson, and Foster subdivided their respec-

tive charges on their own and pleaded guilty to only some of the

charges and then argued double jeopardy barred the remaining

charges. Therefore, the Brener decision is not applicable to the

case at bar.

Based on the reasoning set forth by the United States

Supreme Court in Johnson, we overrule our earlier decision in

Valentine. Further, based on the above reasoning, the State was

not barred by the double-jeopardy provisions of either the

federal or state constitution from going forward with the pending

official-misconduct charge after defendant entered an open plea

of guilty to theft.

C. Section 3-4(a) of the Code

Defendant also argues that section 3-4(a) of the Code

(720 ILCS 5/3-4(a) (West 2004)) also prohibited the State from

- 15 - proceeding with its prosecution of defendant on the official-

misconduct charge. We disagree.

According to our supreme court, the main purpose of

this section is to codify the constitutional double-jeopardy

rules. People v. Mueller, 109 Ill. 2d 378, 383, 488 N.E.2d 523,

525 (1985). As we previously stated, the double-jeopardy provi-

sions of neither the federal nor state constitutions barred

defendant's prosecution for official misconduct.

Further, according to its plain language, this section

of the Code only deals with the effects of former prosecutions.

Both the theft and official-misconduct charges were part of the

same prosecution in this case. As the United States Supreme

Court held in Johnson, a determination of guilt and punishment on

a single count of a multicount indictment does not immediately

raise "a double[-]jeopardy bar to continued prosecution on any

remaining counts that are greater[-] or lesser[-]included of-

fenses of the charge just concluded." Johnson, 467 U.S. at 501,

81 L. Ed. 2d at 434, 104 S. Ct. at 2542. The State in this case

was simply continuing its prosecution of the remaining count of

official misconduct after defendant pleaded guilty to theft.

D. One Act, One Crime

Defendant also argues her conviction for official

misconduct violated the one-act, one-crime rule. Once again, we

disagree. Defendant cited several cases for the proposition that

a defendant should not be convicted of more than one offense

carved from the same physical act. See People v. Moshier, 312

- 16 - Ill. App. 3d 879, 880, 728 N.E.2d 822, 823 (2000); People v.

Nickson, 58 Ill. App. 3d 470, 483, 374 N.E.2d 804, 812-13 (1978).

However, defendant does not cite any case that stands for the

proposition that the one-act, one-crime rule bars the continued

prosecution of remaining charges when a defendant pleads guilty

to some but not all charges that are part of the same prosecu-

tion.

The one-act, one-crime rule is used to enforce the

third double-jeopardy prohibition, which is that a person should

not suffer multiple punishments for the same act. However, this

third prohibition of the double-jeopardy clause does not prohibit

a State from prosecuting a defendant for multiple offenses based

on the same act in the same prosecution, which is what the State

did in this case. In the same way the double-jeopardy clause did

not prohibit the continued prosecution of defendant on the

official-misconduct charge, neither does the one-act, one-crime

rule. Defendant is trying to use the one-act, one-crime rule as

a sword instead of a shield. The trial court did not violate the

one-act, one-crime rule because it only sentenced defendant on

the official-misconduct charge.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

TURNER, P.J., and APPLETON, J., concur.

- 17 -