                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                              People v. Lee, 2011 IL App (2d) 100205




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                      KUN LEE, Defendant-Appellee.



District & No.               Second District
                             Docket No. 2–10–0205


Filed                        June 29, 2011


Held                         Where defendant was charged with aggravated criminal sexual assault
(Note: This syllabus         and unlawful restraint in one case and he was also indicted for
constitutes no part of the   residential arson in a separate case, but the residential arson indictment
opinion of the court but     was dismissed after he was convicted and sentenced in the first case and
has been prepared by the     then he was reindicted on the residential arson charge after his
Reporter of Decisions for    convictions in the first case were reversed on appeal, the trial court’s
the convenience of the       order granting defendant’s motion to dismiss the indictment charging
reader.)                     residential arson on the ground of prosecutorial vindictiveness based on
                             the trial court’s holding that the State did not meet its burden of
                             establishing that it was not being vindictive was reversed, since the
                             State’s decision to reindict defendant did not trigger a presumption of
                             prosecutorial vindictiveness, the residential arson charge was a separate
                             crime based on entirely different facts, the refiling of the charge
                             occurred in a pretrial setting in which the presumption of vindictiveness
                             is not favored, and defendant provided no evidence that the prosecutor
                             had an animus or retaliatory motive for reindicting him or that the
                             reindictment would not have occurred in the absence of animus or
                             motive.
Decision Under              Appeal from the Circuit Court of Lake County, No. 09–CF–928; the
Review                      Hon. George Bridges, Judge, presiding.



Judgment                    Reversed and remanded.


Counsel on                  Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
Appeal                      and Gregory L. Slovacek, both of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.

                            Jed H. Stone and John Curnyn, both of Stone & Associates, of
                            Waukegan, for appellee.


Panel                       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                            Justices Zenoff and Schostok concurred in the judgment and opinion.




                                              OPINION

¶1          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.

¶2                                          I. FACTS
¶3         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,

                                                  -2-
     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.
¶4        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).
¶5        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.
¶6        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.
¶7        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.
¶8        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.”

                                                -3-
¶9         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 with respect to prosecutorial vindictiveness.
       The State appeals.

¶ 10                                        II. ANALYSIS
¶ 11       On appeal, the State argues that the trial court committed reversible error when it
       dismissed the indictment on the residential arson charge on the basis of prosecutorial
       vindictiveness. Specifically, it alleges that, where there was no evidence presented to show
       a reasonable basis to support a claim of vindictive prosecution regarding defendant’s
       reindictment, the presumption of regularity in the affairs and conduct of the prosecutor’s
       office was unrebutted. Under such circumstances, the State contends, dismissing the
       indictment was reversible error, especially where such reindictment bore no relationship to
       defendant’s successful appeal in a separate case. As support for this proposition, the State
       cites to People v. Hall, 311 Ill. App. 3d 905 (2000).
¶ 12       In response, defendant contends that the trial court properly found prosecutorial
       vindictiveness when the State reindicted defendant for residential arson after he had
       successfully appealed another matter. Specifically, he argues that Illinois law provides that
       the State bears the burden of demonstrating objective, on-the-record facts that justify a
       decision to prosecute charges that had been previously nol-prossed. As support for his
       contention, defendant cites to People v. Johnson, 102 Ill. App. 3d 1056 (1981), and People
       v. Stafford, 325 Ill. App. 3d 1069 (2001).
¶ 13       It is well established that a prosecutor violates the due process clause of the fifth
       amendment by exacting a price for a defendant’s exercise of an established right, or by
       punishing a defendant for doing what the law plainly entitles him to do. See United States
       v. Goodwin, 457 U.S. 368, 372 (1982). Therefore, if a prosecutor responds to a defendant’s
       successful exercise of his right to appeal by bringing a more serious charge against him, he
       acts unconstitutionally. United States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001) (citing
       Blackledge v. Perry, 417 U.S. 21, 28-29 (1974)). Indeed, “[t]o punish a person because he
       has done what the law plainly allows him to do is a due process violation of the most basic
       sort, [citation], and for an agent of the [government] to pursue a course of action whose
       objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’
        [Citation.]” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). A finding of prosecutorial
       vindictiveness is remedied through dismissal of the criminal charges brought against a
       defendant. People v. Flanagan, 201 Ill. App. 3d 1071, 1078 (1990).
¶ 14       To establish prosecutorial vindictiveness, a defendant must demonstrate, through
       objective evidence, that: (1) the prosecutor acted with genuine animus or retaliatory motive
       toward the defendant; and (2) the defendant would not have been prosecuted but for that
       animus or motive. Hall, 311 Ill. App. 3d at 912.
¶ 15       If a defendant is unable to prove an improper motive with direct evidence, he may still
       present evidence of circumstances from which an improper vindictive motive may be
       presumed. However, to invoke such a presumption, a defendant must show that the

                                                 -4-
       circumstances “pose a realistic likelihood of ‘vindictiveness.’ ” Blackledge, 417 U.S. at 27.
       When a presumption of vindictiveness is warranted, the burden shifts to the government to
       present objective evidence justifying its conduct. Goodwin, 457 U.S. at 374. Since the
       presumption of vindictiveness must be applicable to all cases presenting the same
       circumstances, it will rarely, if ever, be applied to a prosecutor’s pretrial decisions. Goodwin,
       457 U.S. at 381. Indeed, a prosecutor’s charging decision is presumptively lawful. See
       United States v. Armstrong, 517 U.S. 456, 464 (1996). Based upon the broad discretion given
       prosecutors, and the wide range of factors that may properly be considered in making pretrial
       prosecutorial decisions, “[a] prosecutor should remain free before trial to exercise [that]
       broad discretion entrusted to him to determine the extent of the societal interest in
       prosecution. An initial decision should not freeze future conduct.” Goodwin, 457 U.S. at 382.
¶ 16       Vindictive-prosecution claims can present questions of both law and fact. Therefore, we
       will review the trial court’s legal conclusions in these matters de novo. Hall, 311 Ill. App.
       3d at 910. However, when presented with questions of fact, we will reverse such findings
       only if they are against the manifest weight of the evidence. People v. Close, 238 Ill. 2d 497,
       504 (2010).
¶ 17       In response to the State’s argument that no presumption of prosecutorial vindictiveness
       should apply in this case, defendant claims that Illinois law provides that the State bears the
       burden of demonstrating objective, on-the-record facts that justify a decision to prosecute
       charges that had previously been nol-prossed. As support for this contention, defendant cites
       to Johnson and Stafford.
¶ 18       Defendant asserts that the Johnson case is most factually similar to the instant case. In
       Johnson, the defendant was indicted on charges of armed robbery, attempted murder, and
       aggravated battery. Ill. Rev. Stat. 1977, ch. 38, ¶¶ 18–2, 8–4(a), 12–4. However, the State
       chose to proceed to trial on only the armed robbery charge. The defendant was convicted of
       armed robbery, but his conviction was reversed on appeal. People v. Johnson, 76 Ill. App.
       3d 147 (1979). On remand, the State reindicted the defendant for attempted murder and
       aggravated battery, but proceeded to trial on only the aggravated battery and armed robbery
       charges; the attempted murder charge was nol-prossed. After trial, the defendant was
       convicted of aggravated battery and armed robbery. On appeal, this court held that where
       there was a reasonable likelihood of vindictiveness, which was present in Johnson, the State
       bore the burden of pointing to objective, on-the-record facts that justified its decision.
       Johnson, 102 Ill. App. 3d at 1060-61. After finding that the State’s actions were vindictive,
       the court vacated the aggravated battery conviction. Johnson, 102 Ill. App. 3d at 1062.
¶ 19       We disagree with defendant that the facts in Johnson are similar to the instant case.
       Although both cases involve the refiling of charges, that is where the similarity ends. In
       Johnson, the charges against the defendant all arose as part of one criminal prosecution.
       Here, on the other hand, the record is clear that the residential arson charge was completely
       separate from the other charges faced by defendant. The aggravated criminal sexual assault
       and unlawful restraint charges were based upon allegations that defendant attacked his wife
       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 13 days later, on November 22, 2005. That charge was assigned felony case number

                                                 -5-
       05–CF–4612. It is logical to assume that, after defendant received imprisonment terms of 10
       years and 3 years in case number 05–CF–4654, the State chose to nol-pros the residential
       arson charge in order to conserve prosecutorial resources. See Goodwin, 457 U.S. at 381 (a
       prosecutor may forgo legitimate charges already brought, in an effort to save the time and
       expense of a trial). However, we need not determine the motives of the State in dismissing
       the indictment for residential arson, given that the refiling of that charge occurred in a pretrial
       setting because the charge never went to trial. In such a pretrial setting, no presumption of
       vindictiveness is present. See Goodwin, 457 U.S. at 381.
¶ 20        Defendant also cites to Stafford to support his claim that the presumption of prosecutorial
       vindictiveness applied when the State chose to reindict defendant for residential arson. In
       Stafford, the grand jury indicted the defendant for, inter alia, two counts of first-degree
       murder and five counts of attempted first-degree murder. Before trial, the State dismissed all
       five counts of attempted first-degree murder. After trial, the defendant was convicted of first-
       degree murder. On appeal, the court held that the defendant’s statements to the police on the
       night of his arrest were not voluntary, and it remanded for a new trial. People v. Stafford, No.
       1–96–1307 (1998) (unpublished order under Supreme Court Rule 23). On remand, the State
       proceeded to trial on the first-degree murder charges, as well as the five counts of attempted
       first-degree murder. The State did not reindict the defendant on the dismissed charges. At the
       close of trial, the trial court decided not to allow the jury to be instructed on the attempted
       first-degree murder charges, and the defendant was again convicted of first-degree murder.
       In reversing and remanding for a new trial on the first-degree murder charges, the appellate
       court held that the State violated the defendant’s constitutional rights to due process and a
       fair trial by proceeding against him on the five dismissed charges. Stafford, 325 Ill. App. 3d
       at 1074-75.
¶ 21        With regard to the five counts of attempted first-degree murder, the Stafford court
       advised the parties that the appellate court has held that prosecutorial vindictiveness occurs
       when reindictment would subject a defendant to increased sanctions, or when reindictment
       takes place after the State has terminated part of an indictment by way of a motion for an
       order of nolle prosequi and the defendant has successfully appealed his conviction. Stafford,
       325 Ill. App. 3d at 1075. Under such circumstances, the Stafford court held, reindictment is
       vindictive because the State is retaliating for the defendant’s successful appeal. Stafford, 325
       Ill. App. 3d at 1075. In that situation, the State bears the burden of demonstrating objective,
       on-the-record facts that justify a decision to prosecute charges previously dismissed. Stafford,
       325 Ill. App. 3d at 1075 (citing Johnson, 102 Ill. App. 3d at 1061).
¶ 22        Again, we find that the ruling in Stafford, like the ruling in Johnson, is inapplicable to
       the facts of the instant case. This case is not one in which reindictment subjected defendant
       to increased sanctions, or where the reindictment took place after the State dismissed part of
       an indictment and defendant successfully appealed his conviction. The case at hand is simply
       one in which defendant committed completely separate offenses, on separate days, and had
       separate felony cases filed against him. His successful appeal in one case had absolutely no
       bearing on his other case. Further, since the residential arson case had never gotten to trial,
       the reindictment took place in a pretrial setting and in no way triggered a presumption of
       vindictiveness.

                                                  -6-
¶ 23       This court has recently reviewed the issue of prosecutorial vindictiveness, in People v.
       Brexton, 405 Ill. App. 3d 989 (2010). In Brexton, we held that the State acted vindictively
       when it filed an additional, more serious charge of burglary after the defendant successfully
       exercised his right to withdraw his guilty plea to a charge of retail theft. In vacating the
       burglary conviction, this court held that, when the prosecution brings additional and more
       serious charges after the defendant has been convicted, subjecting him to greater sanctions,
       there is a presumption of prosecutorial vindictiveness. Brexton, 405 Ill. App. 3d at 996.
       Further, since there was no discussion of the burglary charge during the initial plea
       negotiations, and the State raised no additional facts or circumstances warranting the new
       charge, the State failed to overcome the presumption of vindictiveness. Brexton, 405 Ill. App.
       3d at 997.
¶ 24       By contrast, in this case, the State had charged defendant with residential arson before
       this court reversed defendant’s convictions of aggravated criminal sexual assault and
       unlawful restraint. Under these facts, vindictiveness principles were not triggered. See
       Brexton, 405 Ill. App. 3d at 994 (vindictiveness principles are triggered when a prosecutor,
       without notice, increases the possible sanction for no valid reason after the defendant has
       exercised a procedural right (citing People v. Walker, 84 Ill. 2d 512, 523-24 (1981))). Here,
       the State was not increasing a sanction for no valid reason. As we have held, the State was
       merely exercising its prosecutorial discretion in reindicting defendant for a charge that he had
       already been indicted for previously, in a pretrial setting, in a separate felony case.
¶ 25       To support its contention that the trial court committed reversible error here, the State
       cites to Hall. In Hall, the defendant was charged with driving under the influence (DUI) and
       improper lane usage. 625 ILCS 5/11–501(a)(1), 11–709(a) (West 1996). The defendant was
       also charged with a municipal offense of battery. Champaign Municipal Code § 23–42. On
       the day of trial, the State moved to continue the case because it had learned at the last minute
       that the breath test taken by the defendant was not properly certified. The trial court denied
       the motion to continue, and the State dismissed the DUI and improper-lane-usage charges.
       Later that same day, the State filed against the defendant a felony charge of aggravated
       battery. 720 ILCS 5/12–4(b)(8) (West 1994). The trial court granted the defendant’s motion
       to dismiss, finding the State’s conduct to be presumptively vindictive. On appeal, the
       appellate court reversed the trial court’s order granting the motion to dismiss and remanded
       for a determination of actual vindictiveness. People v. Hall, No. 4–97–0111 (1997)
       (unpublished order under Supreme Court Rule 23).
¶ 26       In remanding the cause, the Hall court cited to Goodwin, which stated that, when a
       presumption of vindictiveness is not warranted, “a defendant in an appropriate case might
       prove objectively that the prosecutor’s charging decision was motivated by a desire to punish
       him for doing something that the law plainly allowed him to do.” (Internal quotations marks
       omitted.) (Emphasis omitted.) Hall, 311 Ill. App. 3d at 909 (quoting Goodwin, 457 U.S. at
       384). On remand, the trial court conducted a hearing and again granted the defendant’s
       motion to dismiss, finding objective evidence of prosecutorial vindictiveness. The State
       appealed again, and the appellate court reversed the dismissal of the aggravated battery
       charge when it found no evidence of actual vindictiveness. Hall, 311 Ill. App. 3d at 915.
¶ 27       In Hall, the addition of a new felony charge against the defendant, after the State had nol-

                                                 -7-
       prossed the DUI and improper-lane-usage charges, occurred in a pretrial setting, which,
       under Goodwin, did not trigger the presumption of vindictiveness. Goodwin, 457 U.S. at 381.
       Likewise, in the instant case, the refiling of the residential arson charge after it had been
       dismissed, and having no connection whatsoever to the other charges filed against defendant,
       also occurred in a pretrial setting, and therefore a presumption of vindictiveness cannot be
       placed on the State.
¶ 28       A review of case law from other jurisdictions indicates a general concurrence that no
       presumption of vindictiveness arises where the State indicts a defendant following a
       successful appeal from an unrelated conviction. For example, in Williams v. Bartow, 481
       F.3d 492 (7th Cir. 2007), the Seventh Circuit affirmed the district court’s denial of the
       defendant’s petition for habeas corpus. One of the issues that the defendant raised in his
       petition was a claim of prosecutorial vindictiveness. The defendant claimed that, after he was
       convicted of sexual assault of a child and he successfully appealed that conviction, the state
       vindictively added new charges of sexual assault against two other children on retrial when
       he declined to enter into a plea agreement relating to the originally charged offense. The
       defendant had already raised this issue on direct appeal and the Wisconsin Court of Appeals
       had found it to be meritless. See State v. Williams, 2004 WI App 56, 677 N.W.2d 691.
¶ 29       In reviewing the issue of prosecutorial vindictiveness, the Williams court agreed with the
       state court of appeals that this situation was different from a Blackledge type of claim, where,
       following a defendant’s successful appeal, greater punishment is sought by a prosecutor.
       Williams, 481 F.3d at 501 (citing Blackledge, 417 U.S. at 25-29). By contrast, in Williams,
       the prosecutor had decided to charge the defendant with “an entirely different crime, based
       on entirely different facts,” and those new crimes occurred in a different time period than the
       original crime charged. Williams, 481 F.3d at 501. The court then held that “when the
       prosecutorial conduct involves other criminal conduct, the defendant must demonstrate
       actual vindictiveness rather than relying on the presumption recognized in Blackledge.”
       (Emphasis in original.) Williams, 481 F.3d at 502.
¶ 30       The Ninth Circuit has also reached the same conclusion. In United States v. Martinez,
       785 F.2d 663, 669 (9th Cir. 1986), the court held that, if the additional charge “aris[es] out
       of the same nucleus of operative facts as the original charge,” a presumption of
       vindictiveness is raised. If, however, the new charge is unrelated to the original charges, the
       presumption does not arise. (Internal quotation marks omitted.) The Martinez court correctly
       noted that nothing in Blackledge “presumed to give the defendant a free ride for separate
       crimes he may have committed, or to prevent a prosecutor from bringing new charges as a
       result of changed or altered circumstances which properly bear on prosecutorial discretion.”
       (Internal quotation marks omitted.) Martinez, 785 F.2d at 669.
¶ 31       It is clear from our review of the pertinent case law, on both the state and federal levels,
       that the State’s decision here to reindict defendant for residential arson after he had
       successfully appealed his convictions of aggravated criminal sexual assault and unlawful
       restraint did not trigger a presumption of prosecutorial vindictiveness. The residential arson
       charge was an entirely different crime, based upon entirely different facts and which occurred
       on a different day than the previous crimes. Further, the original residential arson indictment
       was dismissed in a separate case from the other crimes charged, and the refiling of that

                                                 -8-
       charge occurred in a pretrial setting, in which a presumption of vindictiveness is not favored.
       See Goodwin, 457 U.S. at 381. Accordingly, the trial court erred in ruling that such a
       presumption existed.
¶ 32        Since we have held that a presumption of vindictiveness did not exist, we turn to the
       issue of whether defendant proved actual vindictiveness on the part of the prosecution. Our
       review of the record indicates that defendant provided no evidence that the prosecutor had
       an animus or retaliatory motive when he reindicted defendant for residential arson, or any
       evidence that the reindictment would not have occurred absent that animus or motive. See
       Hall, 311 Ill. App. 3d at 912. Since there was no proof of actual vindictiveness, we reverse
       the trial court’s order granting defendant’s motion to dismiss the residential arson indictment,
       and we remand this cause for further proceedings consistent with this opinion.
¶ 33        The judgment of the circuit court of Lake County is reversed, and the cause is remanded.
¶ 34        Reversed and remanded.




                                                 -9-
