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People v. Cichon

December 14, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSEPH J. CICHON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois, No. 90-CF-185, Honorable H. Chris Ryan, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Holdridge

PUBLISHED

Following a jury trial, defendant Joseph J. Cichon was convicted of four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12--14(a)(4), (b)(1)), two counts of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12--13(a)(4)), one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12--16(c)(1)(i)) and three counts of child pornography (Ill. Rev. Stat. 1989, ch. 38, par. 11--20.1(a)(1)(iv)). Defendant was sentenced to an aggregate term of 105 years' imprisonment. On direct appeal, this court affirmed the sentences. People v. Cichon, No. 3--00--0795 (2002) (unpublished order under Supreme Court Rule 23).

Subsequently, the defendant filed a post-conviction petition. The defendant alleged that the special prosecutors in his case from the State's Attorneys Appellate Prosecutor (SAAP) had no authority to prosecute his case, and thus his convictions and sentences were void. The trial judge summarily dismissed the petition, and the defendant now appeals. We affirm.

BACKGROUND

In 1990, the defendant was charged, in a 54-count indictment, with multiple counts of aggravated criminal sexual assault, criminal sexual abuse, aggravated criminal sexual abuse, child pornography, and maintaining a public nuisance. The defendant entered into a fully negotiated plea agreement, pleading guilty to 12 of those counts. He was then sentenced to 25 years' imprisonment.

In 1994, the defendant filed a post-conviction petition that was dismissed on the State's motion. On appeal, this court reversed and remanded defendant's cause for an evidentiary hearing. People v. Cichon, No. 3--94--0652 (1995) (unpublished order under Supreme Court Rule 23). On remand, the trial court granted the post-conviction petition, vacated the plea and sentences, and reinstated all the charges of the indictment.

In 1998, the defendant's motion to dismiss the case on double jeopardy grounds was denied by the trial court. That decision was later affirmed on appeal. People v. Cichon, No. 3--98---0704 (1999) (unpublished order under Supreme Court Rule 23). Later, because of a conflict, the new State's Attorney of La Salle County filed a motion to have the SAAP appointed as special prosecutor in the new trial. That motion was granted, and the case proceeded to a jury trial in August of 2000.

The defendant was convicted of four counts of aggravated criminal sexual assault, two counts of criminal sexual assault, one count of aggravated criminal sexual abuse, and three counts of child pornography. The defendant was subsequently sentenced to an aggregate term of 105 years' imprisonment. On a direct appeal, this court affirmed the sentences, but modified the mittimus to show that the sentences imposed on the child pornography convictions were to be served concurrently. People v. Cichon, No. 3--00--0795 (2002) (unpublished order under Supreme Court Rule 23).

In December of 2002, the defendant filed a pro se post-conviction petition alleging that his convictions and sentences were void because the special prosecutors appointed in his case lacked the authority to prosecute him. The trial judge summarily dismissed the petition, and the defendant appealed.

ANALYSIS

On appeal, the defendant submits that the trial court erred by dismissing his post-conviction petition at the first stage of the proceedings.

Post-conviction proceedings have three stages. People v. Gaultney, 174 Ill. 2d 410, 675 N.E.2d 102 (1996). In the first stage, the trial court reviews the petition within 90 days of its filing and may dismiss it if the court determines that it is frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2002). To survive dismissal at the first stage, a pro se defendant need only raise the gist of a meritorious constitutional claim. Gaultney, 174 Ill. 2d 410, 675 N.E.2d 102. We review the first-stage dismissal of a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998).

The defendant argues that the attorneys from the SAAP lacked authority to prosecute him. In support of this argument, the defendant cites section 4.01 of the State's Attorneys Appellate Prosecutor's Act (SAAP Act) (725 ILCS 210/4.01 (West 2000)). Though subsequently amended to provide broader authority to SAAP attorneys (see 725 ILCS 210/4.01 (West 2002)), at the time of the defendant's trial that section provided only that, "[t]he [SAAP] may also assist County State's Attorneys in the discharge of their duties under the Illinois Controlled Substances Act, the Narcotics Profit Forfeiture Act, and the Illinois Public Labor Relations Act." 725 ILCS 210/4.01 (West 2000). The defendant contends that because SAAP attorneys were statutorily limited ...


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