Court of Appeals of Illinois, First District, Fifth Division
Rehearing denied November 5, 2013
Defendant’s convictions for two counts of violation of bail bond were reversed and the assessed fines and fees were vacated, since defendant was in custody during the last 3 days of the 30-day surrender period, and pursuant to Ratliff, the State could not prove beyond a reasonable doubt that his failure to surrender within the 30-day period was willful.
Appeal from the Circuit Court of Cook County, Nos. 07-CR-1772, 07- CR-1773; the Hon. William G. Lacy, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Kristen E. Mueller, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Carol L. Gaines, Assistant State's Attorneys, of counsel), for the People.
Presiding Justice McBride and Justice Taylor concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Joseph Costa was found guilty and sentenced on two counts of violation of bail bond (720 ILCS 5/32-10(a) (West 2006)). Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court incorrectly instructed the jury and (3) several of the fines and fees assessed by the court were not authorized by statute and should be vacated. We reverse defendant's convictions for violation of bail bond and vacate the court's assessment of the challenged fees and fines.
¶ 2 BACKGROUND
¶ 3 In May 2006, the State charged defendant with aggravated battery of a peace officer and violation of an order of protection obtained by his then-wife Pamela Tilton. By separate indictment, it charged defendant with two counts of aggravated stalking of Tilton and two additional counts of violation of an order of protection obtained by Tilton. The court consolidated the cases.
¶ 4 Defendant posted $1 million bond and was released. Under the conditions of defendant's bond, he was required to appear in court until a final order issued in the pending cases and could not leave the state without leave of court. If he failed to appear, he could be tried in absentia and charged with bail jumping and he would forfeit his bail.
¶ 5 On November 15, 2006, defendant failed to appear in court for a status hearing. The court issued bond forfeiture warrants.
¶ 6 On December 12, 2006, United States Marshals arrested defendant in Hawaii. He agreed to extradition to Illinois and was brought into court in Cook County on December 22, 2006. The court entered judgment on the bond forfeiture warrants on December 18, 2006.
¶ 7 The State charged defendant in two separate one-count indictments with felony violation of bail bond under section 32-10(a) of the Criminal Code of 1961 (the Code) (720 ILCS 5/32-10(a) (West 2006)). These indictments are numbered 07 CR 1772 and 07 CR 1773.
¶ 8 Defendant moved to dismiss the section 32-10(a) felony violation of bail bond charges and reinstate his bond. Section 32-10(a) provides in relevant part:
"Whoever, having been admitted to bail for appearance before any court of this State, incurs a forfeiture of the bail and willfully fails to surrender himself within 30 days following the date of such forfeiture, commits, if the bail was given in connection with a charge of felony a felony of the next lower Class ." 720 ILCS 5/32-10(a) (West 2006).
¶ 9 Defendant argued that he had not committed an offense under section 32-10(a) because he had willfully surrendered to the United States Marshals in Hawaii and agreed to extradition to Illinois before the 30-day "tolling period" expired. The State responded that being arrested in another state did not constitute a willful surrender as contemplated by section 32-10(a) and, moreover, the question of whether or not the defendant committed the offense as charged was for the trier of fact to determine. The court denied defendant's motion to dismiss on the basis that he had failed to cite authority supporting the proposition that being arrested within 30 days prevents proceedings under the bail bond statute.
¶ 10 Trial began on September 2, 2008. In relevant part, Detective Sherlock testified that he was a Chicago police detective working with the United States Marshal's fugitive task force. He testified that he received a request from Assistant State's Attorney Nina Ricci to assist in locating defendant. On December 10, 2006, he learned that the investigation had moved to Hawaii.
¶ 11 United States Deputy Marshal Glen Ferreira testified that he worked in the United States Marshal's office in Hawaii. He testified that, on December 12, 2006, he went to an address in Honolulu where he confirmed defendant was staying. When defendant eventually drove up, United States deputies identified themselves and informed defendant that they had a warrant for his arrest. Deputy Ferreira testified that defendant said he knew they were looking for him, cooperated with the deputies and did not resist arrest. The deputies turned defendant over to the Honolulu police department.
¶ 12 Defendant testified that he went to Hawaii because his attorney had given him permission to leave Illinois. He stated he had gone to Hawaii and intended to return to Chicago for his November 15, 2006, court date but did not return for the court date because he was afraid that Tilton's bodyguards were "out of control." Defendant stated that he had understood that he had to come back to Illinois in December to avoid being charged with ...