The opinion of the court was delivered by: Justice Kilbride
Docket No. 95750-Agenda 5-November 2003.
Pursuant to a plea agreement, defendant Ted B. Gray pleaded guilty in Coles County to two counts of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 1998)) and one count of unlawful possession of a weapon (430 ILCS 65/2(a)(1) (West 1998)). While defendant was in prison serving the sentence he received in Coles County, an indictment was filed in Champaign County, charging defendant with five counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 1998)). Four of the five Champaign County counts were based on the same conduct that formed the basis of the Coles County prosecution. Defendant moved to dismiss those four counts, and the Champaign County circuit court denied his motion.
Defendant appealed, arguing double jeopardy (188 Ill. 2d R. 604(f)), and the appellate court affirmed the circuit court's judgment (336 Ill. App. 3d 356). We allowed defendant's petition for leave to appeal. 177 Ill. 2d R. 315(a). We now affirm the judgments of the appellate court and the circuit court and remand the cause to the circuit court of Champaign County for further proceedings consistent with this opinion.
On November 13, 2000, a five-count information was filed against defendant in Coles County. The first four counts alleged criminal sexual assault, a Class 1 felony, in violation of sections 12-13(a)(1) and 12-13(a)(3) (720 ILCS 5/12-13(a)(1), (a)(3) (West 1998)) of the Criminal Code of 1961. The fifth count alleged unlawful possession of a weapon in violation of section 2(a)(1) of the Firearm Owners Identification Card Act (430 ILCS 65/2(a)(1) (West 1998)). That count was not related in any way to the offenses charged in counts I through IV.
Information later garnered through discovery suggested that some of the offenses charged in counts I though IV had occurred in Coles County and some of those offenses had occurred in Champaign County. Upon learning that some of the offenses charged in Coles County may have occurred in Champaign County, defendant placed Coles County on notice of his affirmative defense of improper venue by filing a disclosure pursuant to Supreme Court Rule 413 (134 Ill. 2d R. 413).
Defendant then entered into a plea agreement with the Coles County State's Attorney, whereby defendant agreed to plead guilty to counts I, II, and V, and the State agreed to dismiss counts III and IV and to recommend that any incarceration not exceed one year. Sometime after defendant tendered his plea, defendant's attorney became aware that Champaign County may have been conducting an investigation. Defendant's attorney then contacted the Champaign County State's Attorney's office and gave notice of the plea agreement in the Coles County proceeding, informing the Champaign County office that some of the offenses charged in Coles County appeared to have been committed in Champaign County. A Champaign County assistant State's Attorney told defendant's attorney that the Champaign County State's Attorney was not aware of any investigation and that he was "not then contemplating any charges against [d]efendant." On June 27, 2001, after pleading guilty but before sentencing, defendant received a presentence report indicating that the Champaign County State's Attorney was indeed contemplating filing charges against him.
A few days later, 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 Counts I through IV took place in Champaign County rather than Coles County." Defendant also noted defense counsel's prior discussion with the Champaign County assistant State's Attorney's office. Defendant acknowledged in his motion that in pleading guilty, he had knowingly and intelligently waived any objection to the improper venue. Accordingly, defendant requested leave to supplement the record supporting his guilty plea by adding the State's disclosures to protect his constitutional rights should Champaign County seek prosecution against him. Alternatively, he requested leave to withdraw his guilty plea. The court allowed defendant's request to supplement the record, and the guilty plea was not withdrawn.
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 concurrent sentences of five years on each count. The State dismissed counts III and IV. Two months later, the Champaign County State's Attorney filed the five-count information against defendant in Champaign County at issue in the present case. All five counts charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 1998)), a Class X felony.
Defendant filed a motion to dismiss all of the counts filed in Champaign County, except count III, on grounds of double jeopardy and immunity. He did not seek to dismiss count III because it alleged an act that was not charged in the Coles County case. The State admitted that the Coles County charges and the Champaign County charges were based on the same acts. The Champaign County circuit court denied defendant's motion. Defendant took an interlocutory appeal to the appellate court arguing double jeopardy under Supreme Court Rule 604(f) (188 Ill. 2d R. 604(f)), and the appellate court affirmed (336 Ill. App. 3d 356). We allowed defendant's petition for leave to appeal. 177 Ill. 2d R. 315(a).
Defendant has not challenged the two convictions that warranted his imprisonment, and those convictions have never been overturned. Instead, defendant asks this court to enforce the Coles County plea agreement and prevent the Champaign County State's Attorney from prosecuting him for crimes based upon the same conduct as those offenses that were included as part of the Coles County plea agreement. Defendant has framed the issue as whether the Champaign County charges are barred by double jeopardy or by principles of implied immunity "by virtue of the executed and final plea agreement in Coles County which any court in Illinois must enforce." In making this argument, defendant relies heavily on the use of the "same-conduct" test adopted by the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 521-22, 109 L.Ed. 2d 548, 564-65, 110 S.Ct. 2084, 2093 (1990). The Corbin decision was later overruled, however, in United States v. Dixon, 509 U.S. 688, 704, 125 L.Ed. 2d 556, 573, 113 S.Ct. 2849, 2860 (1993).
The double jeopardy clauses of the federal and Illinois constitutions prohibit twice subjecting a defendant to "jeopardy of life or limb" for the same offense. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §10. This constitutional principle bars three specific actions: (1) prosecution for the identical offense after an acquittal; (2) prosecution for the identical offense after a conviction; and (3) the imposition of more than one punishment for the same offense. People v. Sienkiewicz, 208 Ill. 2d 1, 4 (2003). To determine whether a constitutional double jeopardy violation has occurred, this court has recently repudiated the Corbin "same-conduct" test advanced here by defendant and readopted the "same-elements test" originally established in Blockburger v. United States, 284 U.S. 299, 76 L.Ed. 306, 52 S.Ct. 180 (1932). Sienkiewicz, 208 Ill. 2d at 5. Under the Blockburger same-elements test, multiple prosecutions are permissible under constitutional principles of double jeopardy if each of the offenses contains at least one element not present in the others. Sienkiewicz, 208 Ill. 2d at 5. In Sienkiewicz, 208 Ill. 2d at 6, our analysis included an initial consideration of whether the ...