Appeal from the Circuit Court of Massac County. No. 00-CF-24 Honorable Terry J. Foster, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
This case presents a rather remarkable effort to prosecute David Turner twice for the same criminal conduct. It appears that the State fully intends to derive harsher punishment in the event of another successful prosecution.
The current prosecution originated on March 2, 2000, when the State's Attorney of Massac County filed a two-count information that charged Turner with aggravated criminal sexual assault. It alleged that Turner molested his stepdaughter. A superceding indictment, with similar allegations, was filed on March 23, 2000.
Turner has already been successfully prosecuted for what he did to his stepdaughter. The same State's Attorney launched a prosecution back in March 1996 to make Turner answer for it. On November 12, 1996, Turner capitulated to the allegations brought against him. He accepted responsibility for what he had done, pleaded guilty to two counts of predatory criminal sexual assault of a child, and went to prison. Two additional charges of aggravated criminal sexual assault were dropped.
Thus, Turner went to prison, years ago, for the conduct alleged in the pending charges. Turner has done nothing to undo the two convictions that warranted his imprisonment. No court of law has ever overturned them.
By March of 2000, Turner was about to realize every prisoner's fancy-that day when he would stand before a gate and watch it open, free to pass into the world he left behind years earlier. Turner was about to pay his debt to society. As he stood on the verge of fulfilling the punishment that his criminality wrought, authorities from Massac County paid him a visit. On March 17, 2000, he was greeted with newly issued arrest warrants, backed by criminal charges that alleged the same criminal conduct that sent him to prison, conduct that resulted in punishment that he was about to complete.
This rather incredible circumstance stems from the Massac County prosecutor's perspective of what happens when the supreme court finds that a statute is unconstitutional. He believes that Turner's convictions were instantly rendered void, as in nonexistent, when our supreme court struck down the statute that created the crime of predatory criminal sexual assault of a child. See Johnson v. Edgar, 176 Ill. 2d 499, 680 N.E.2d 1372 (1997). He used this belief to convince the trial court that Turner's convictions should be treated as if they never existed. He successfully argued that Turner's void convictions could not be raised as a bar to a second prosecution.
In effect, the Massac County prosecutor decided to overturn Turner's two convictions and award him a new trial. He commenced these proceedings aimed at that end. Turner did not seek a new trial. He does not want one. He wants the State to leave him alone.
There is a distinct possibility that this novel approach was formulated as an opportune way to correct a prosecutorial oversight that allowed Turner to escape mandatory consecutive sentencing when originally prosecuted. *fn1 During oral argument, appellate counsel for the State could not disavow the possibility that the ultimate goal of this prosecution is to increase Turner's actual punishment and keep him in prison for another four years. If Turner is convicted again, his convictions would occur under a charging instrument that now alleges the commission of two sexual acts as part of a single course of conduct. This new allegation calls for mandatory consecutive sentences. While Turner might invoke constitutional protection against the imposition of more punishment after a successive prosecution (People v. Baze, 43 Ill. 2d 298, 302-03, 253 N.E.2d 392, 395 (1969)), the Massac County prosecutor is resourceful enough to think that so long as Turner's sentences are not increased, and only the manner in which they must be served is involved, there is no constitutional impediment to such punishment, even though it would double the actual loss of freedom that the State could inflict.
This grand prosecutorial scheme drew credence during oral argument. Appellate counsel for the State voiced concern about the permanency of Turner's two convictions, since grounds may well exist to have them undone. See Johnson, 176 Ill. 2d 499, 680 N.E.2d 1372; People v. Tellez-Valencia, 188 Ill. 2d 523, 723 N.E.2d 223 (1999); but see People ex rel. Bassin v. Isreal, 31 Ill. App. 3d 744, 335 N.E.2d 53 (1975). Turner's lawyer suggested that a desire to maintain the sanctity of Turner's convictions was not the State's real objective. He believes that Turner is being prosecuted in order to impose consecutive sentences which would send Turner back to prison. According to Turner's lawyer, Turner has always been willing to resolve this prosecution with the convictions and punishment permanently intact. An offer to do so was spurned by the Massac County prosecutor, who apparently has something else in mind.
If additional imprisonment is not what the State has in mind, it is difficult to imagine why resources would be expended in an effort to prosecute Turner again. After all, Turner embraces the two convictions that he already has. Turner wants to remain a convicted sexual predator and wrap himself in the protection from greater punishment that such status affords. The Illinois Constitution, like the United States Constitution before it, places a well- known limitation on the State's power to punish people. It provides a simple promise that no person shall be twice put in jeopardy for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.
We suspect that even those unschooled in the law might understand that in America, people are not convicted and punished for their misconduct and thereafter arrested and prosecuted again for it, simply because the State wants to satisfy a failed desire to inflict more punishment. "Double jeopardy" is a concept that is pretty basic and easy to grasp. Like every other guarantee afforded our citizenry, it is just a little harder to apply in the case of child molesters.
This interlocutory appeal follows the trial court's denial of Turner's effort to raise his two convictions as a bar to further prosecution. No one questions that Turner stood in front of a judge and entered two guilty pleas, an act that placed him in jeopardy of the State's power to punish. No one disputes the fact that the criminal conduct now alleged is identical to the ...