Appeal from the Circuit Court of Kane County. No. 12-CF-1571. Honorable Patricia Piper Golden, Judge, Presiding.
Defendant was properly prosecuted in criminal court, rather than juvenile court, for escape and resisting or obstructing a peace officer based on his removal of an electronic home monitoring device placed on his ankle as a condition of the homebound detention imposed on him in an earlier case, notwithstanding the fact that he was only 16 when he removed the device, since escape is a continuing offense that encompasses the initial departure and the failure to return to custody, and when defendant was captured, he had turned 17 and was susceptible to criminal prosecution.
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.
BURKE, PRESIDING JUSTICE.
[¶1] Following a jury trial, defendant, Erik Esparza, was convicted of escape (720 ILCS 5/31-6(a) (West 2012)) and resisting or obstructing a peace officer (720 ILCS 5/31-1(a) (West 2012)), and he was sentenced to 30 months' probation and 180 days in jail. At issue in this appeal is whether (1) it was proper for defendant to be prosecuted in criminal court for escape where defendant was 16 when he initially fled from home detention but was 17 when he was arrested; and (2) the court imposed an unauthorized sentence on the conviction of resisting or obstructing a peace officer. For the reasons that follow, we determine that it was proper for defendant
to be prosecuted in the criminal court and that the court imposed a proper 180-day jail term for resisting or obstructing a peace officer. Thus, we affirm.
[¶2] The following facts are relevant to resolving the issue raised. Prior to June 2012, defendant was placed on homebound detention, and, as a condition of his detention, he was required to wear an electronic home monitoring (EHM) device, which he wore on his ankle. According to the " Special Conditions of [EHM]," defendant could " not tamper with, remove, or damage the [EHM] device."
[¶3] On June 1, 2012, juvenile homebound detention officers learned that defendant's EHM device had been tampered with. On June 4, 2012, Lisa Tarquino, a juvenile homebound detention officer who worked with defendant, wrote up a report on this violation, prepared an affidavit, and faxed these documents to the Kane County State's Attorney's office. A warrant was issued, and on June 13, 2012, Tarquino went to defendant's home. Tarquino, who talked with defendant's mother at the residence, learned that defendant was not home and that no one knew where he was. Tarquino confiscated the EHM device that was issued to defendant, observing that the strap of the EHM bracelet had been cut.
[¶4] On July 5, 2012, defendant turned 17. On August 5, 2012, defendant, who was not wearing an EHM device, was with friends in another part of town. At that time, he was arrested for various offenses, including escape. The indictment for that charge provided, in relevant part, that, " on or about August 5, 2012, defendant *** committed the offense of escape *** in that *** defendant knowingly and unlawfully escaped from an [EHM] device that *** defendant was placed on as a condition of his sentence [in another case], in that he removed [the EHM] device from his ankle."
[¶5] Before, during, and after trial, defendant argued that the criminal court lacked jurisdiction over the escape charge, as defendant was 16 when the EHM device was removed from his ankle. The court denied the motions, finding that the escape offense began when defendant removed the EHM device from his ankle but that it continued until the police arrested him after he turned 17. Thus, defendant was 17 during the period of his escape.
[¶6] Defendant was found guilty, and he was sentenced. When the court imposed the sentence, it asserted that the resisting conviction " merge[d] in terms of any jail time," and, thus, the court was " really only going to address the Class 3 escape." The court then imposed 30 months of probation and ordered defendant to serve 180 days in jail. The written order provided that defendant was to serve jail time, but the order did not indicate the length of any jail sentence. Rather, the order provided that defendant was given 173 days of credit and was " released instanter upon being taken to JJC and be[ing] placed on GPS." (Emphasis in original.) Neither party questioned whether the court imposed an unauthorized sentence for the resisting offense. This timely appeal followed.
[¶7] At issue in this appeal is whether (1) defendant was properly prosecuted in the criminal court on the escape charge, and (2) whether an unauthorized sentence was imposed on the conviction of resisting or obstructing a ...