People v. Price ( 2006 )

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