Appeal from Circuit Court of Champaign County No. 01CF1310 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
In a case separate from this one, No. 00-CF-648 in Coles County, the State charged defendant, Ted. B. Gray, with four counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 1998)) and one count of unlawful possession of a weapon without a valid firearm owner's identification card (430 ILCS 65/2(a)(1) (West 1998). The information erroneously alleged that defendant had committed the sexual assaults entirely within Coles County. Discovery suggested that although some of the sexual assaults occurred in Coles County, most of them occurred in Champaign County.
Pursuant to a plea agreement with the Coles County State's Attorney, defendant pleaded guilty, in case No. 00-CF-648, to two counts of criminal sexual assault and to the one count of unlawful possession of a weapon, and the State dismissed the remaining two counts of criminal sexual assault. The Coles County circuit court sentenced defendant to five years' imprisonment, among other punishments.
While defendant was in prison, serving the sentence he received in the Coles County case, the State filed the indictment in the present case, in the Champaign County circuit court, charging defendant with five counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)). Four of the five counts were based on the same conduct for which defendant was prosecuted in Coles County. Pleading double jeopardy, defendant moved to dismiss those four counts, and the Champaign County circuit court denied his motion. Defendant appeals pursuant to Supreme Court Rule 604(f) (188 Ill. 2d R. 604(f)). We hold that the prosecution in the present case does not violate the plea agreement or the constitutional and statutory guarantees against double jeopardy. See U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §10; 720 ILCS 5/3-4 (West 2000). Therefore, we affirm the trial court's judgment.
On November 13, 2000, in case No. 00-CF-648, the Coles County State's Attorney filed a five-count information against defendant in the Coles County circuit court. The first four counts alleged criminal sexual assault--counts I and II alleging a violation of section 12-13(a)(3) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/ 12-13(a)(3) (West 1998)) and counts III and IV alleging a violation of section 12-13(a)(1) (720 ILCS 5/12-13(a)(1) (West 1998)). The fifth count alleged unlawful possession of a weapon (a count irrelevant to the issue of double jeopardy).
Specifically, count I stated that in approximately 1998, in Coles County, defendant sexually penetrated his daughter, A.M.G., by placing his mouth over her vagina and his fingers in her vagina.
Count II stated that in 1998, in Coles County, he did the same to his other daughter, J.L.G.
Count III stated that in 1998, in Coles County, he forced J.L.G. to place her mouth on his penis and stimulate him.
Count IV stated that in 1998, in Coles County, he forced A.M.G. to do the same. Each of those counts specified the girls' birth dates. A.M.G. was born on May 27, 1987, and J.L.G. was born on March 25, 1986.
The Coles County State's Attorney provided defendant the disclosures required by Supreme Court Rule 412 (188 Ill. 2d R. 412). The disclosures included an interview of A.M.G., J.L.G., and defendant on November 1, 2000, by Darrell Cox, a detective of the Coles County sheriff's department. A.M.G. told Cox that in 1998, when she was 11, she and J.L.G. were with defendant under a bridge near Sadorus (in Champaign County). There, at defendant's direction, each of them performed fellatio on him. A.M.G. said that on another occasion, in their home in Coles County, defendant touched her vagina with his fingers and put his mouth on her vagina.
In her interview with Cox, J.L.G. also recounted the incident under the bridge. She said that somewhere in the countryside near Sadorus, she, A.M.G., and defendant went under a bridge, where, in J.L.G.'s words, "He made us suck on *** his dick." She also said defendant had put his mouth on her "private parts" in his bedroom.
After Cox advised him of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), defendant admitted having A.M.G. and J.L.G. touch his penis under a bridge north of Sadorus in 1998, while they were on a fishing trip. He also admitted putting his mouth and tongue on J.L.G's vagina in his residence at Sadorus. He insisted, however, that he never penetrated J.L.G. or A.M.G., either with an object or with any part of his body. According to defendant, all of those sexual acts occurred within a span of 12 to 18 months, from 1997 to 1998. On July 4, 1998, he, his wife, and his daughters moved from Sadorus to Arcola, in Coles County. Only one incident happened in Coles County, when he touched A.M.G.'s breasts as she lay in bed.
Defendant entered into a plea agreement with the Coles County State's Attorney, whereby he agreed to plead guilty to counts I, II, and V and the State agreed to dismiss counts III and IV and recommend that any incarceration not exceed one year. On June 27, 2001, after his guilty plea but before sentencing, defendant received a presentence report, which stated: "Defendant appears to have Class X felony charges being sought out of Champaign County for predatory sexual assault of a child." Until then, defendant was unaware that the Champaign County State's Attorney intended to prosecute him.
On July 2, 2001, in the Coles County circuit court, defendant filed a "Motion to Supplement Record in Support of Plea and Alternatively for Leave to Withdraw Plea." In that motion, defendant stated: "[T]he People's discovery indicated that a number of the acts alleged in [c]ounts I through IV took place in Champaign County rather than Coles County." He acknowledged that in pleading guilty to counts I, II, and V, he had knowingly and intelligently waived any objection to the improper venue. According to the motion, defendant's attorney spoke with Champaign County Assistant State's Attorney William Gaston before defendant pleaded guilty. At that time, Gaston represented to defendant's attorney that the Champaign County State's Attorney was "not then contemplating any charges against [d]efendant." Later, upon receiving the presentence report, defendant learned that the Champaign County State's Attorney was indeed contemplating filing charges against him.
Defendant explained in his motion:
"Defendant does not wish to withdraw his plea herein if he be allowed to supplement the factual record in support thereof in order that his [c]onstitutional rights against double jeopardy be fully protected should Champaign County seek prosecution based in whole or part upon the very acts underpinning some of his [c]ounts herein; [h]owever[,] in the event this [c]court refuses his request to supplement the record to reflect the foregoing, under the current circumstances, the only other means of protecting [d]efendant's right against double jeopardy may be to move to withdraw his plea."
Accordingly, he requested leave to supplement the record supporting his guilty plea by adding the State's disclosures. Alternatively, he requested leave to withdraw his guilty plea. The record does not appear to indicate whether the Coles County circuit court ruled on the motion.
On July 3, 2001, pursuant to the plea agreement, the Coles County circuit court entered judgment on counts I, II, and V and sentenced defendant to imprisonment for five years, among other punishments. The State dismissed counts III and IV.
On September 6, 2001, in the present case, the Champaign County State's Attorney filed a five-count indictment against defendant in the Champaign County circuit court. All five counts charged him with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)). Each of the counts alleged that defendant was 17 years of age or older and his daughters were under 13 years of age when he victimized them. Count I stated that in the summer of 1998, in Champaign County, defendant sexually penetrated A.M.G. by putting his penis in her mouth.
Count II stated that in the summer of 1998, in Champaign County, defendant sexually penetrated J.L.G. by putting his penis in ...