Appeal from the Circuit Court of Lake County. No. 09-CF-928 Honorable George Bridges, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.
Defendant, Kun Lee, was charged with aggravated criminal sexual assault and unlawful restraint. 720 ILCS 5/12-14(a)(1), 10-3(a) (West 2004). In a separate case, he was also indicted for residential arson. 720 ILCS 5/20-1.2(a) (West 2004). The first case proceeded to trial, and a jury convicted defendant of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2004)) and unlawful restraint (720 ILCS 5/10-3(a) (West 2004)). He was sentenced to concurrent terms of 10 years and 3 years' imprisonment, respectively. After defendant was sentenced, the State dismissed the residential arson indictment. On appeal, this court reversed defendant's convictions and remanded for a new trial. People v. Lee, No. 2-07-0100 (2008) (unpublished order under Supreme Court Rule 23). The State subsequently reindicted defendant for residential arson. See 720 ILCS 5/20-1.2(a) (West 2004). Defendant filed a motion to dismiss the indictment on the ground of prosecutorial vindictiveness. The trial court held that the State did not meet its burden of establishing that it was not being vindictive; therefore, it granted defendant's motion. For the following reasons, we reverse and remand.
The record reflects that the aggravated criminal sexual assault and unlawful restraint charges were filed based upon allegations that defendant attacked his wife, Sun Yung Lee, on November 9, 2005. Those charges were assigned felony case number 05-CF-4654. The residential arson charge was based upon an allegation that defendant set fire to his wife's home on November 22, 2005. That charge was assigned felony case number 05-CF-4612.
On December 19, 2008, this court reversed defendant's convictions of aggravated criminal sexual assault and unlawful restraint and remanded for a new trial after holding that the trial court erred in denying defendant's request to proceed pro se at trial. See People v. Lee, No. 2-07-0100 (2008) (unpublished order under Supreme Court Rule 23).
On March 4, 2009, the State obtained a new indictment on the residential arson charge, in case No. 09-CF-928. At a hearing on April 29, 2009, the trial court asked if this was the old case refiled. Defense counsel responded that the trial court was correct. The trial court then noted that the prosecutor who had been assigned to this case, Assistant State's Attorney Kenneth LaRue, was in the military reserves and had been called to active duty in Iraq or Afghanistan, and that Assistant State's Attorney Brett Henne was now the prosecutor assigned to this case.
On October 7, 2009, defendant filed two motions to dismiss the residential arson indictment. In the first motion, defendant argued that the arson charge should be dismissed on statute-of- limitations grounds. In the second motion, defendant claimed that the case should be dismissed because his due process rights were violated when the reindictment was motivated by prosecutorial vindictiveness.
At the hearing on the motions to dismiss, defendant argued that the law was clear that the State must, from the record, establish a reason for the refiling of this case. In response, Henne disagreed and argued that, in order to prove prosecutorial vindictiveness, the trial court must first find that there was a realistic likelihood of vindictiveness in the State's exercise of its discretionary prosecuting power. Henne argued that defendant had not produced any evidence, in the form of the transcript of when the case was originally dismissed or when it was refiled, of any realistic likelihood of vindictiveness. When asked by the trial court why the State did not proceed on the residential arson charge, Henne responded that he did not have an answer. Henne also said that he did not know why the case was refiled, either, and that LaRue refiled the case.
After hearing the parties' arguments, the trial court granted defendant's first motion to dismiss the residential arson charge, since the statute of limitations had run. With regard to the motion to dismiss for prosecutorial vindictiveness, the trial court stated:
"[T]he court also looked at the issue of the re-indictment. The fact it was re-indicted and the alleged vindictiveness of the State's refiling of that case and the case law is clear once a defendant pursues this motion the State does have the burden to establish to the court that they were not being vindictive because of his successful application of his appellate rights.
The State's response of not knowing why they did not proceed on this matter here nor knowing why it was re-indicted, it is this Court's assessment that it does not alleviate the potential for vindictiveness in reinstatement of this charge. I believe it's a violation of defendant's due process rights in this case here. So both under the statute of limitations and the vindictive matters I will dismiss the counts [sic] in 09 CF 928."
The State filed motions to reconsider the trial court's orders granting defendant's motions to dismiss. After a hearing, the trial court granted the State's motion on the statute-of-limitations issue, but denied the State's motion ...