                                  Illinois Official Reports

                                          Appellate Court



                             People v. Esparza, 2014 IL App (2d) 130149



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



District & No.               Second District
                             Docket No. 2-13-0149



Filed                        August 19, 2014




Held                         Defendant was properly prosecuted in criminal court, rather than
(Note: This syllabus         juvenile court, for escape and resisting or obstructing a peace officer
constitutes no part of the   based on his removal of an electronic home monitoring device placed
opinion of the court but     on his ankle as a condition of the homebound detention imposed on
has been prepared by the     him in an earlier case, notwithstanding the fact that he was only 16
Reporter of Decisions        when he removed the device, since escape is a continuing offense that
for the convenience of       encompasses the initial departure and the failure to return to custody,
the reader.)                 and when defendant was captured, he had turned 17 and was
                             susceptible to criminal prosecution.



Decision Under               Appeal from the Circuit Court of Kane County, No. 12-CF-1571; the
Review                       Hon. Patricia Piper Golden, Judge, presiding.




Judgment                     Affirmed.
     Counsel on               Thomas A. Lilien and Jaime L. Montgomery, both of State Appellate
     Appeal                   Defender’s Office, of Elgin, for appellant.

                              Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                              Bauer and Aline Dias, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.


     Panel                    PRESIDING JUSTICE BURKE delivered the judgment of the court,
                              with opinion.
                              Justices Hutchinson and Birkett concurred in the judgment and
                              opinion.



                                               OPINION

¶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


                                                  -2-
       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 peace officer. We consider each argument in turn.
¶8          The first issue we address is whether defendant was properly prosecuted in the criminal
       court for the escape offense. In the trial court, defense counsel argued that the criminal court
       lacked jurisdiction, but “[w]hether a person is tried in juvenile [court] or criminal court is a
       matter of procedure rather than jurisdiction.” People v. P.H., 145 Ill. 2d 209, 222 (1991); see
       also In re Luis R., 239 Ill. 2d 295, 299-305 (2010). This presents a question of law that we
       review de novo. See People v. Baum, 2012 IL App (4th) 120285, ¶ 9.
¶9          Resolving the issue raised begins with examining section 5-120 of the Juvenile Court Act
       of 1987 (Act) (705 ILCS 405/5-120 (West 2012)). In examining this statute, we are guided
       by the well-settled rules of statutory construction. The primary objective in construing a
       statute is to ascertain and give effect to the legislature’s intent. People v. Richardson, 2014 IL
       App (1st) 122501, ¶ 14. The surest and most reliable indicator of this intent is the language of
       the statute itself. People v. Rich, 2011 IL App (2d) 101237, ¶ 8. Thus, where the language of
       the statute is clear and unambiguous, courts must apply the statute as written, without reading
       into the language any exceptions, limitations, or conditions for which the legislature did not
       provide. People v. Fiveash, 2014 IL App (1st) 123262, ¶ 26.
¶ 10        Section 5-120 of the Act, which is entitled “Exclusive jurisdiction,” defines what persons
       and crimes are covered by delinquency proceedings, as opposed to criminal prosecutions.
       705 ILCS 405/5-120 (West 2012). Specifically, it provides that the State may initiate
       delinquency proceedings against “any minor who prior to the minor’s 17th birthday has
       violated or attempted to violate, regardless of where the act occurred, any federal or State law
       or municipal or county ordinance.” Id. Subject to enumerated exceptions that are inapplicable
       here, “no minor who was under 17 years of age at the time of the alleged offense may be
       prosecuted under the criminal laws of this State.” Id.
¶ 11        Accordingly, here, we must determine whether defendant was under 17 when he
       committed escape. Defendant was 16 when the EHM bracelet was removed from his ankle.
       Thus, if, as defendant argues, escape is not a continuing offense, then defendant could be

                                                   -3-
       prosecuted only in juvenile court. In contrast, if, as the State argues and as the trial court
       found, escape is a continuing offense, then defendant, who was 17 when he was arrested,
       could be properly prosecuted in criminal court. Where an offense can be properly prosecuted
       in juvenile court or criminal court, that decision is committed to the discretion of the State’s
       Attorney. People v. Markley, 2013 IL App (3d) 120201, ¶ 14.
¶ 12        Insightful in determining whether escape is a continuing offense is People v. Miller, 157
       Ill. App. 3d 43 (1987). There, the defendant, who was given probation with a term of 30 days
       of work release, failed to return to work release after starting that program. Id. at 45. Almost
       six years later, she was apprehended, and, at that time, she was indicted for escape. Id. The
       defendant moved to dismiss the indictment, arguing that a prosecution for the offense was
       barred, as the three-year limitations period had expired. Id. The trial court granted the
       motion, and the State appealed. Id.
¶ 13        The appellate court reversed, finding that escape was a continuing offense, such that the
       three-year statute of limitations did not bar prosecuting the defendant. Id. at 46. In reaching
       this conclusion, the court noted that, under federal law and the laws in other states, “escape
       encompasses not only the defendant’s initial departure but his failure to return to custody.”
       Id. Moreover, the court cited the United States Supreme Court’s reasoning that “an escaped
       prisoner poses a continuing threat to society and thus ‘the nature of the crime involved is
       such that Congress must assuredly have intended it to be treated as a continuing one.’ United
       States v. Bailey (1980), 444 U.S. 394, 413, 62 L. Ed. 2d 575, 592, 100 S. Ct. 624, 636,
       quoting Toussie v. United States (1970), 397 U.S. 112, 115, 25 L. Ed. 2d 156, 161, 90 S. Ct.
       858, 860.” Id.
¶ 14        We agree with Miller. We believe that escape is a continuing offense, which here
       encompassed not only defendant’s removal of the EHM device in June 2012 when defendant
       was 16 but also defendant’s failure to return to custody until August 2012 when defendant
       was 17. Thus, because escape is a continuing offense and defendant was arrested for escape
       after he turned 17, he could be properly prosecuted in criminal court.
¶ 15        Defendant argues that Miller is distinguishable, because, in Miller, the indictment
       charged the defendant with committing the offense “ ‘on or about September 30, 1978[,]
       through to, or on about May 29, 1984.’ ” Id. at 47. Here, in contrast, defendant claims that
       there was no allegation of a continuing offense. Defendant claims that the indictment here
       alleged that the escape occurred only when he cut off the EHM bracelet, which he did when
       he was 16. Although defendant is correct in his assertion that the indictment alleged that he
       committed escape when he cut off the EHM bracelet, the indictment, though perhaps
       inartfully drafted, also alleged that the escape continued until August 5, 2012. Because
       defendant was 17 on this date, prosecution in the criminal court was proper.
¶ 16        Second, we consider whether this cause must be remanded for resentencing. That is, we
       address whether the trial court imposed an unauthorized sentence on the conviction of
       resisting or obstructing a peace officer. Defendant asserts that the court imposed 30 months’
       probation for resisting as well as for escape, a sentence beyond the statutory range for
       resisting. See 730 ILCS 5/5-4.5-55(d) (West 2012). Such a sentence may be attacked at any
       time. People v. Arna, 168 Ill. 2d 107, 113 (1995). Moreover, we note that, because this issue
       presents a pure question of law, our review is de novo. See People v. Thompson, 209 Ill. 2d
       19, 22 (2004).


                                                  -4-
¶ 17       The record reflects that, with regard to the resisting conviction, the court was going to
       impose a sentence that “merge[d] in terms of any jail time” with the sentence imposed on the
       escape conviction. The court went on to address only the escape conviction, imposing 30
       months’ probation including a jail term of 180 days. Thus, we believe that the record
       adequately reflects that the 180-day jail term was imposed on both convictions and that the
       30-month probation sentence was imposed only on the escape offense. This sentence for
       resisting was proper. See 730 ILCS 5/5-4.5-55(a) (West 2012) (imprisonment for a Class A
       misdemeanor must be not more than one year).
¶ 18       For these reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 19      Affirmed.




                                                 -5-
