                                  Illinois Official Reports

                                            Appellate Court



                             People v. Ventsias, 2014 IL App (3d) 130275



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      PETER A. VENTSIAS, Defendant-Appellant.

District & No.               Third District
                             Docket No. 3-13-0275

Filed                        July 1, 2014

Held                         In a prosecution for predatory criminal sexual assault and aggravated
(Note: This syllabus         criminal sexual abuse where defendant was initially found guilty of
constitutes no part of the   predatory assault and not guilty of sexual abuse, then his predatory
opinion of the court but     assault conviction was reversed on appeal, and then, prior to a second
has been prepared by the     trial, the trial court was informed defendant would plead guilty to the
Reporter of Decisions        sexual abuse charge after consenting to the reinstatement of that
for the convenience of       charge and the predatory assault charge would be nol-prossed, and
the reader.)                 then, following a plea hearing according to the new agreement, an
                             off-the-record conservation occurred as to the trial court’s concerns
                             about whether defendant could plead guilty to an offense of which he
                             had been acquitted, the trial court vacated the plea, reinstated the
                             predatory assault charge and then conducted a jury trial at which
                             defendant was convicted, the appellate court upheld the conviction for
                             predatory criminal sexual assault over defendant’s contention that the
                             predatory criminal sexual assault conviction violated the double
                             jeopardy clause, since jeopardy did not attach to the predatory assault
                             charge at the plea hearing because defendant did not plead guilty to
                             that charge, even if jeopardy attached, the plea hearing was properly
                             terminated by the trial court based on the discovery that defendant
                             could not validly plead guilty to a charge of which he had been
                             acquitted, and the predatory assault charge was properly reinstated.

Decision Under               Appeal from the Circuit Court of Will County, No. 06-CF-652; the
Review                       Hon. Richard C. Schoenstedt, Judge, presiding.
     Judgment                   Affirmed.


     Counsel on                 Jeffery J. Tomczak (argued), of Law Office of Jeff Tomczak, of Joliet,
     Appeal                     for appellant.

                                James Glasgow, State’s Attorney, of Joliet (Colleen M. Griffin
                                (argued), Assistant State’s Attorney, of counsel), for the People.

     Panel                      JUSTICE CARTER delivered the judgment of the court, with opinion.
                                Presiding Justice Lytton and Justice McDade concurred in the
                                judgment and opinion.

                                                  OPINION

¶1         After a jury trial, defendant, Peter A. Ventsias, was convicted of predatory criminal sexual
       assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)). Prior to sentencing, he filed a
       motion to dismiss the charge, alleging a double jeopardy violation. The trial court denied the
       motion, and defendant filed an interlocutory appeal to challenge that ruling. We affirm the trial
       court’s judgment.

¶2                                                 FACTS
¶3          In March 2006, defendant was arrested and charged with one count of predatory criminal
       sexual assault of a child (the predatory charge), a Class X felony, and one count of aggravated
       criminal sexual abuse (the abuse charge), a Class 2 felony (720 ILCS 5/12-16(c)(1)(i) (West
       2006)), for allegedly sexually molesting eight-year-old G.L. A jury trial was held in December
       2007 and defendant was found guilty of the predatory charge and not guilty of the abuse
       charge. Defendant was subsequently sentenced to 11 years’ imprisonment. Defendant
       appealed, and this court reversed defendant’s conviction on the predatory charge because of an
       issue of juror bias and remanded the case for a new trial on that charge. People v. Ventsias, No.
       3-08-0209 (2009) (unpublished order under Supreme Court Rule 23).
¶4          In January 2012, while the case was on remand and prior to a second trial, the State and the
       defense informed the trial court at a pretrial hearing that they had entered into a plea agreement
       wherein defendant would plead guilty to the abuse charge of which he had previously been
       acquitted and the State would nol-pros the predatory charge.1 As part of the parties’ plea
       agreement, a sentencing hearing would be scheduled and it was anticipated that the parties
       would reach an agreement as to the sentence, as well. In taking defendant’s plea of guilty, the
       trial court thoroughly admonished defendant. Defendant was given all of the admonishments

             1
            A motion by the State to nol-pros a particular criminal charge or case is comparable to a motion to
       dismiss. See People v. Daniels, 187 Ill. 2d 301, 312 (1999); People v. Watson, 394 Ill. 177, 179-80
       (1946). It is a formal declaration by the prosecuting attorney that he is unwilling to prosecute the
       particular charge or case in question. Id.


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     provided for in Illinois Supreme Court Rule 402 (eff. July 1, 1997). In addition, based upon the
     unique circumstances of the plea, defendant was thoroughly admonished that double jeopardy
     barred reprosecution of defendant on the abuse charge because of the prior acquittal and that
     the only way that the State could reinstate the charge was if defendant consented to the State
     doing so. Defendant acknowledged that he understood all of the admonishments and that he
     was consenting to the State reinstating the abuse charge. After the admonishments had
     concluded, the trial court accepted defendant’s plea of guilty on the abuse charge and the
     predatory charge was nol-prossed pursuant to the plea agreement.2 The case was scheduled for
     a sentencing hearing to take place a few months later.
¶5       At some point shortly thereafter, in a conversation that took place off the record, the trial
     court mentioned to the attorneys involved that it had concerns over whether defendant could
     properly plead guilty to a charge of which he had previously been acquitted. About a week
     after the plea hearing, the State filed a motion to update the charges. In the motion, the State
     alleged that at the time of the plea, the parties intended for defendant to plead guilty to a Class
     2 felony aggravated criminal sexual abuse charge and that they mistakenly believed that the
     prior abuse charge could be reinstated. The State asked the trial court to vacate the plea and to
     “allow a proper plea be entered instanter to the desired class 2 felony keeping the same
     sentencing date in the future.” When the motion came up for hearing, defense counsel
     informed the trial court that defendant no longer wanted to enter a plea of guilty, that defendant
     wanted a trial, and that the parties were asking by agreement to vacate the prior minutes and the
     previous plea of guilty. Without providing defendant with any type of admonishments, the trial
     court vacated the prior plea and reinstated the prior predatory charge.3 The trial court indicated
     on the record that the predatory charge was being reinstated on the motion of the defense and
     asked defense counsel if he had any objection to that. Defense counsel responded that he did
     not. The trial court inquired of defense counsel if defendant understood what was going on, and
     defense counsel responded affirmatively.
¶6       A second jury trial took place on the predatory charge in July and August 2012 at
     conclusion of which defendant was again found guilty. Prior to sentencing, defendant hired a
     new attorney. The new attorney filed a motion to dismiss the predatory charge based upon a
     double jeopardy violation.4 The trial court denied the motion after a hearing. As provided for
     in Illinois Supreme Court Rule 604(f) (eff. Feb. 6, 2013), defendant filed the instant
     interlocutory appeal to challenge the trial court’s ruling.

         2
          The trial court record does not clearly indicate whether the nolle prosequi was actually entered
     before or after the plea was accepted. There is no mention of the nolle prosequi being entered in the
     transcript of the proceeding, although it was mentioned by the prosecutor as one of the terms of the plea
     agreement when the trial court was informed of the plea. The trial court docket sheet lists the entry of
     the guilty plea first, the nolle prosequi second, and the entry of a judgment of conviction third. There is
     no dispute, however, that both the acceptance of the plea and the nolle prosequi took place at the same
     plea hearing.

         3
            At times during the hearing, the trial court indicated that it was vacating the prior plea on its own
     motion.
          4
            Despite the statutory requirement (see 725 ILCS 5/114-1(a), (b) (West 2012)), defendant did not
     file his motion to dismiss the charge prior to the second trial. No issue has been raised, however, as to
     whether the motion to dismiss was timely filed.

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¶7                                                ANALYSIS
¶8         Defendant argues on appeal that the trial court erred in denying his motion to dismiss the
       predatory charge based upon a violation of double jeopardy. Defendant asserts that jeopardy
       attached to the predatory charge at the plea hearing because the nolle prosequi of that charge
       was not entered until after defendant’s plea of guilty on the reinstated abuse charge had been
       accepted. Thus, defendant contends that the nolle prosequi had the same effect as an acquittal
       and that he could not be prosecuted further on the predatory charge. As part of that assertion,
       defendant claims that his waiver of his double jeopardy rights on the abuse charge was valid
       under the law and was supported by public policy and that his plea of guilty to that charge
       should not have been vacated by the trial court. In the alternative, defendant asserts that even if
       his plea to the abuse charge was invalid, reinstatement of the predatory charge and retrial of
       defendant on that charge were barred under the circumstances of this case because defendant
       was never admonished when the guilty plea was vacated that the predatory charge would be
       reinstated. For all of the reasons set forth, defendant asks that we reverse the trial court’s denial
       of his motion to dismiss the predatory charge, that we vacate the finding of guilty on the
       predatory charge, that we reinstate defendant’s plea of guilty to the abuse charge, and that we
       remand the case with directions to the trial court to sentence defendant on the abuse charge.
¶9         The State argues that the trial court’s ruling was proper and should be upheld. The State
       asserts that jeopardy did not attach to the predatory charge at the time of the plea hearing
       because defendant did not enter a plea of guilty to that charge. Thus, the State contends that it
       was not barred from prosecuting defendant further on the predatory charge. The State also
       asserts that because defendant’s plea to the reinstated abuse charge was invalid, the trial court
       was required to vacate the plea and to reinstate the predatory charge, which had been
       nol-prossed pursuant to the plea agreement. In support of that assertion, the State contends that
       a defendant who has been acquitted of a charge after a trial cannot validly waive his double
       jeopardy rights as to that charge to allow the charge to be reinstated, even if the defendant does
       so as part of a counseled guilty plea in which a higher level of offense is being dismissed. As
       for defendant’s claim regarding admonishments, the State asserts that the admonishments cited
       by defendant were not required in this case because the vacation of the plea was not being done
       on defendant’s motion but, rather, on motion of the State. The State disputes defendant’s
       public policy assertion and contends that public policy would not allow a person to plead guilty
       to a charge of which he had previously been acquitted. For all the reasons cited, the State asks
       that we affirm the trial court’s denial of defendant’s motion to dismiss the predatory charge on
       double jeopardy grounds.
¶ 10       In general, a trial court’s ruling on a motion to dismiss a charge on double jeopardy
       grounds will not be reversed on appeal absent an abuse of discretion. People v. Griffith, 404 Ill.
       App. 3d 1072, 1079 (2010). However, when neither the facts nor the credibility of the
       witnesses is at issue in the appellate court’s review of the trial court’s ruling on the motion,
       such as in the present case, the question becomes one of law and the standard of review on
       appeal is de novo. See id.
¶ 11       “The double jeopardy clause of the fifth amendment to the United States Constitution,
       made applicable to the states through the fourteenth amendment, provides that no person shall
       ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ U.S. Const.,
       amends. V, XIV.” People v. Bellmyer, 199 Ill. 2d 529, 536-37 (2002). Similar protection is

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       provided by the Illinois Constitution (Ill. Const. 1970, art. I, § 10) and by Illinois statute (720
       ILCS 5/3-4(a) (West 2012)). Bellmyer, 199 Ill. 2d at 537. The prohibition against double
       jeopardy stems from an intent to promote fairness and finality in legal proceedings. Daniels,
       187 Ill. 2d at 309. “The cornerstone of the double jeopardy clause is ‘that the State with all its
       resources and power should not be allowed to make repeated attempts to convict an individual
       for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and
       compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the
       possibility that even though innocent he may be found guilty.’ ” People v. Williams, 188 Ill. 2d
       293, 307 (1999) (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)). The protection
       provided by the double jeopardy clause has been put into effect through rules that specify when
       jeopardy attaches and that prohibit a subsequent prosecution in certain situations that would
       violate the double jeopardy clause. See People v. Knaff, 196 Ill. 2d 460, 468 (2001). The rules
       with regard to double jeopardy, however, should not be applied in a mechanical nature,
       especially if the situation is such that the interests the rules seek to protect are not endangered
       and a mechanical application would frustrate society’s interest in enforcing its criminal laws.
       See id. at 468-69.
¶ 12        The double jeopardy clause protects against three distinct abuses: (1) a second prosecution
       for the same offense after acquittal; (2) a second prosecution for the same offense after
       conviction; and (3) multiple punishments for the same offense. People v. Henry, 204 Ill. 2d
       267, 283 (2003). Only the first protection is involved in the instant case. To determine whether
       a retrial or other subsequent proceeding would violate a defendant’s double jeopardy rights, a
       reviewing court must decide whether the defendant was placed in jeopardy during the first
       proceeding and, if so, whether the defendant can nevertheless be subjected to a retrial or other
       subsequent proceeding. See Bellmyer, 199 Ill. 2d at 537. The first step in that analysis is to
       determine the point in the initial proceeding when jeopardy attached. Id. at 538. The law in that
       regard is well established. In a jury trial, jeopardy attaches when the jury is impaneled and
       sworn; in a bench trial, jeopardy attaches when the first witness is sworn and the court begins
       to hear evidence; and in a guilty plea proceeding, jeopardy attaches when the guilty plea is
       accepted by the trial court but only attaches to those offenses to which the defendant pleads
       guilty. Watson, 394 Ill. at 180-83; People v. McCutcheon, 68 Ill. 2d 101, 106-08 (1977);
       Daniels, 187 Ill. 2d at 310-13; People v. Cabrera, 402 Ill. App. 3d 440, 447-48 (2010). As for
       a motion by the State to nol-pros a charge, if the motion is allowed and entered before jeopardy
       has attached to the charge, the nolle prosequi does not operate as an acquittal, and a subsequent
       prosecution for the same offense can legally proceed. Id. If, on the other hand, a motion to
       nol-pros is allowed and entered after jeopardy has attached to the charge, the nolle prosequi
       has the same effect as an acquittal, and the State may not pursue that charge in a subsequent
       proceeding. Id.
¶ 13        Regardless of the context, the protection against double jeopardy only applies if there has
       been some event that terminates the original jeopardy. See Cabrera, 402 Ill. App. 3d at 449.
       Under the concept of continuing jeopardy, reprosecution is not barred by the double jeopardy
       clause in certain circumstances where the criminal proceeding against a defendant has not run
       its full course. Id. For example, double jeopardy does not prevent a retrial when a defendant’s
       conviction is reversed on appeal, unless the reversal is because of insufficient evidence; nor
       does double jeopardy prohibit a retrial when the initial trial was ended as the result of a
       properly declared mistrial. Id. By the same token, double jeopardy does not bar subsequent


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       prosecution of a charge to which a defendant’s plea of guilty was accepted, if the plea
       proceeding is later terminated for a proper reason, such as if the plea is properly vacated. See
       id. However, if a plea proceeding is terminated improperly after jeopardy has already attached,
       a subsequent prosecution on the charge to which defendant originally pled guilty will be
       prohibited by the double jeopardy clause, the same as if a jury or bench trial was terminated
       improperly. Id.
¶ 14       In the instant case, after having reviewed the law in this area and the unique facts involved,
       we find that the trial court properly denied defendant’s motion to dismiss the predatory charge
       on double jeopardy grounds. Simply put, jeopardy did not attach to the predatory charge at the
       time of the plea hearing because defendant did not enter a plea of guilty to that charge. See
       Watson, 394 Ill. at 180-83; McCutcheon, 68 Ill. 2d at 106-08; Daniels, 187 Ill. 2d at 310-13;
       Cabrera, 402 Ill. App. 3d at 447-48. Rather, the charge was nol-prossed on motion of the State
       during the same hearing as part of the plea agreement. Although there have been some unclear
       statements in the law on this point, we believe that the precedent of our supreme court is fairly
       well settled that jeopardy would not have attached to the predatory charge at the time of the
       plea hearing under the circumstances of the present case. See id. We, therefore, reject
       defendant’s argument on this issue.
¶ 15       In reaching that conclusion, we note that even if jeopardy had attached to the predatory
       charge at the plea hearing, we still would have to find that the subsequent prosecution on that
       charge did not violate defendant’s double jeopardy rights because the plea proceeding was
       properly terminated by the trial court when the trial court and the parties realized that
       defendant could not enter a valid plea of guilty on a charge of which he had already been
       acquitted. See Cabrera, 402 Ill. App. 3d at 447-49; People v. Caban, 318 Ill. App. 3d 1082,
       1089-90 (2001) (double jeopardy did not bar a subsequent trial where defendant’s plea of
       guilty to the charge in question was vacated on the State’s motion because the agreed sentence
       did not comply with the statutory guidelines). Defendant’s assertion to the contrary is based
       upon the faulty premise that at the plea hearing, he made a valid waiver of his double jeopardy
       rights as to the abuse charge, even though he had previously been acquitted of that charge after
       a jury trial. Although double jeopardy rights may be waived in some circumstances, they may
       not be waived under the circumstances of the present case in which the State is constitutionally
       prohibited from prosecuting defendant or from haling defendant into court on the charge in
       question. See Blackledge v. Perry, 417 U.S. 21, 29-31 (1974) (in a case involving a due process
       claim that was similar to a claim of double jeopardy, the United States Supreme Court held that
       defendant did not waive his due process claim by pleading guilty to a felony charge, which was
       brought in response to defendant’s appeal of his conviction on a similar misdemeanor charge
       involving the same incident, because the defendant’s right in that particular instance was the
       right not to be haled into court at all on the felony charge and the very initiation of further
       proceedings against the defendant violated due process of law); Menna v. New York, 423 U.S.
       61, 62-63 (1975) (in a case in which the defendant was charged with, and pled guilty to, a
       criminal offense for refusing to testify before a grand jury after he had already been found in
       contempt and had already served a 30-day jail sentence for the same incident, the United States
       Supreme Court reversed the state appellate court’s ruling that the defendant had waived his
       double jeopardy rights by pleading guilty to the criminal charge and remanded the case to the
       appellate court for a determination as to the merits of the defendant’s double jeopardy claim,
       stating that “[w]here the State is precluded by the United States Constitution from haling a


                                                   -6-
       defendant into court on a charge, federal law requires that a conviction on that charge be set
       aside even if the conviction was entered pursuant to a counseled plea of guilty”); United States
       v. Broce, 488 U.S. 563, 574-76 (1989) (in a case in which a defendant who pled guilty to two
       conspiracies later sought to have the sentences set aside, alleging that there was only a single
       conspiracy, the United States Supreme Court noted that although double jeopardy claims in a
       criminal case were generally waived when a defendant pled guilty, there was an exception to
       that rule that applied in situations where the State could not hale the defendant into court or
       constitutionally prosecute the defendant on the charge in question). Thus, the waiver of
       defendant’s double jeopardy rights in the present case was invalid and the trial court properly
       vacated defendant’s guilty plea on the State’s motion and properly reinstated the predatory
       charge. See id.
¶ 16       We recognize the practical application of defendant’s public policy argument–that a
       defendant should be allowed to waive his double jeopardy protection as part of a plea
       agreement if it is in his benefit to do so, as long as the waiver is knowingly and voluntarily
       made. However, we cannot ignore the strong indication in the decisions of the United States
       Supreme Court that in this particular situation–where a defendant has been previously
       acquitted of a charge–the protection against double jeopardy is so fundamental to the integrity
       of our justice system that it cannot be waived by a defendant, even as the result of a counseled
       guilty plea. See id; Martinez v. Illinois, 572 U.S. ___, ___, 134 S. Ct. 2070, 2077 (2014) (in a
       case in which the State respectfully refused to participate in defendant’s jury trial after its
       motion to continue the trial was denied, the United States Supreme Court held that the State
       could not appeal the grant of a directed verdict of not guilty for defendant and stated that “the
       State knew, or should have known, that an acquittal forever bars the retrial of the defendant
       when it occurs after jeopardy has attached”). In line with that same precedent, we also do not
       believe that the State has the ability to reinstate the charge under the circumstances of the
       present case. See Blackledge, 417 U.S. at 29-31; Menna, 423 U.S. at 62-63; Broce, 488 U.S. at
       574-76.
¶ 17       As for defendant’s assertion in the alternative–that the vacation of the plea and the
       subsequent trial on the predatory charge were improper because defendant was not
       admonished at the time the plea was vacated that the predatory charge would be reinstated–we
       find that assertion to be misplaced. The admonishments to which defendant refers apply in a
       situation where a plea is vacated on defendant’s own motion. See Ill. S. Ct. R. 605(b) (eff.
       Oct. 1, 2001). That rule has no application under the facts of the present case, where the plea
       was vacated on the motion of State or on the motion of the trial court itself. Regardless of any
       admonishments or whether defendant agreed, the plea in the instant case was going to be
       vacated by the trial court because the plea was constitutionally impermissible. See Blackledge,
       417 U.S. at 29-31; Menna, 423 U.S. at 62-63; Broce, 488 U.S. at 574-76.

¶ 18                                       CONCLUSION
¶ 19      For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 20      Affirmed.




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