People v. Bochenek

• Decision Date: 20 May 2021
• Docket Number: Docket No. 125889
• Citation: 2021 IL 125889,183 N.E.3d 61,451 Ill.Dec. 15
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Dominik K. BOCHENEK, Appellant.
• Court: Illinois Supreme Court

2021 IL 125889

183 N.E.3d 61

451 Ill.Dec. 15

The PEOPLE of the State of Illinois, Appellee,

v.Dominik K. BOCHENEK, Appellant.

Docket No. 125889

Supreme Court of Illinois.

Opinion filed May 20, 2021.

James E. Chadd, State Appellate Defender, and Thomas A. Lilien, Deputy Defender, of the Office of the State Appellate Defender, of Elgin (Bryan G. Lesser, of Edelman, Combs, Latturner & Goodwin, LLC, of Chicago, of counsel), for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Evan B. Elsner, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE THEIS delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Dominik K. Bochenek was convicted of identity theft for the knowingly unauthorized use of another person's credit card information to purchase cigarettes. Prior to trial, defendant argued that the venue provision pertaining to identity theft, which allows for proper venue in the county in which the victim resides, was unconstitutional. The circuit and appellate courts upheld the constitutionality of the provision. For the following reasons, we hold that the venue provision is constitutional and affirm the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 In April 2016, defendant was charged in the circuit court of Du Page County with one count of identity theft ( 720 ILCS 5/16-30(a)(1) (West 2016)) and one count of unauthorized use of an unissued credit card (id. § 17-36(ii)). The charges arose after defendant fraudulently used Anthony Fatigato's credit card information to purchase cigarettes.

¶ 4 In May 2017, days before trial, defendant filed a motion to dismiss the charges pursuant to section 114-1(a)(7) of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/114-1(a)(7) (West 2016)). In support, he argued that the venue statute ( 720 ILCS 5/1-6(t)(3) (West 2016)), which allows for the cause to be brought in the county where the victim resides, conflicts with article I, section 8, of the Illinois Constitution. Ill. Const. 1970, art. I, § 8. That section provides that an accused shall have the right to be tried by a jury of the county in which "the offense is alleged to have been committed." Id. Defendant maintained that the acts constituting the offenses occurred at a gas station in Lake County and not where the victim resides, in Du Page County. After a hearing, the circuit court denied defendant's motion.

¶ 5 Thereafter, the jury found defendant guilty of identity theft. The court granted defendant's motion for a directed verdict on the remaining charge after concluding that the credit card was not "unissued" as contemplated by the statute defining that offense. The court sentenced defendant to a 30-day term of periodic imprisonment on work release and a 30-month term of probation.

¶ 6 On appeal, the appellate court affirmed, rejecting defendant's facial constitutional challenge to section 1-6(t)(3) of the venue statute. 2020 IL App (2d) 170545, 439 Ill.Dec. 902, 149 N.E.3d 244. The court determined that subsection (t) "expressly enacts the constitutional requirement" of article I, section 8, "by defining where the offense occurs" to include both where the "physical acts are accomplished" and where "the injury occur[s]." Id. ¶ 31. The court noted that the constitution's venue provision only provides for a right to trial in " ‘the county in which the offense is alleged to have been committed’ " and not, as defendant suggested, "where ‘the defendant's conduct in committing the offense occurred.’ " Id. ¶ 34. The court further found there was no conflict with the constitution where, by legislative definition, "the offense of identity theft occurs both where the physical acts occur as well as where the intangible identification information is located." Id. ¶ 35. Additionally, the appellate court found that defendant's facial challenge failed where constitutionally valid applications of section 1-6(t)(3) exist, including the prosecution of an offender whose "physical acts associated with the identity theft" of an Illinois citizen "all occurred out of state." Id. ¶ 39.

¶ 7 We allowed defendant's petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. Oct. 1, 2019).

¶ 8 ANALYSIS

¶ 9 In this case, we are asked to consider whether the statutory venue provision as set forth under section 1-6(t)(3) of the Criminal Code of 2012 (Code) ( 720 ILCS 5/1-6(t)(3) (West 2016)), which allows for proper venue where the victim resides, satisfies the mandate of article I, section 8, that a defendant shall be tried in the county where "the offense is alleged to have been committed" ( Ill. Const. 1970, art. I, § 8 ). Defendant has raised a facial challenge to the statute, which we review de novo. People v. Gray , 2017 IL 120958, ¶ 57, 418 Ill.Dec. 916, 91 N.E.3d 876.

¶ 10 The constitutionality of a statute is analyzed under well-settled principles. Statutes are presumed constitutional, and to rebut that presumption, the party challenging a statute's constitutionality has the burden of establishing a clear violation. People v. Coty , 2020 IL 123972, ¶ 22, 449 Ill.Dec. 220, 178 N.E.3d 1071. A party raising a facial challenge to a statute faces a particularly heavy burden. People v. Eubanks , 2019 IL 123525, ¶ 34, 442 Ill.Dec. 663, 160 N.E.3d 843. A statute will be deemed facially unconstitutional only if there is no set of circumstances under which the statute would be valid. Id. The particular facts related to the challenging party are irrelevant. People v. Rizzo , 2016 IL 118599, ¶ 24, 406 Ill.Dec. 488, 61 N.E.3d 92. If it is reasonably possible to construe the statute in a way that preserves its constitutionality, we must do so. Id. With these principles in mind, we consider the issue before us.

¶ 11 Article I, section 8, of the Illinois Constitution grants to an accused the right "to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed." Ill. Const. 1970, art. I, § 8. This language is virtually unchanged from the earlier 1870 Constitution. Ill. Const. 1870, art. II, § 9. The constitutional guarantee does not mandate a single exclusive location for a crime, nor does it limit the General Assembly's ability to establish where a crime will be committed, as that crime is defined by the General Assembly. See, e.g. , People v. Miller , 171 Ill. 2d 330, 333, 216 Ill.Dec. 93, 664 N.E.2d 1021 (1996) (observing that the legislature has wide discretion in defining crimes). Rather, we have long recognized the General Assembly's authority to enact specific venue statutes where special circumstances have arisen due to the nature of the crime. See, e.g. , Watt v. People , 126 Ill. 9, 18-19, 18 N.E. 340 (1888) ("our present constitution vests in the General Assembly the power to" "determine by law when offenses are to be deemed to be local, and when and within what limitations they are to be treated as transitory").

¶ 12 Consistent with the constitutional mandate, the General Assembly has established the general rule that "[c]riminal actions shall be tried in the county where the offense was committed, except as otherwise provided by law." 720 ILCS 5/1-6(a) (West 2016). Over time, advances in technology and commerce have changed the way the legislature, and society, view the location of a crime. See 4 Wayne R. LaFave et al. , Criminal Procedure § 16.1(d), at 790 (4th ed. 2015) (As "significant advances [were] made in transportation and communications, crimes committed in more than one *** district became much more common").

¶ 13 As such, the General Assembly has enacted several special venue provisions in addition to its general venue requirement due to the nature of certain crimes. 720 ILCS 5/1-6(b) - (u) (West Supp. 2019). In those instances, the legislature recognized that proper venue may lie in more than one county. For example, subsection (b) of the Code provides that, where the defendant and victim are in different counties, an offense upon a victim's person occurs in both locations, notwithstanding the defendant's lack of physical presence in the county at the time of his actions. Id. § 1-6(b).

¶ 14 In the present case, both the general statute and the statute under which defendant was charged contain an explicit venue provision for the relatively new crime of identity theft. See 720 ILCS 5/1-6(t), 16-36 (West 2016). Those provisions specifically establish where the crime of identity theft may be considered to have been committed. Under section 1-6(t), the General Assembly has determined that the crime of identity theft "may be tried in any one of the following counties in which: (1) the offense occurred; (2) the information used to commit the offense was illegally used; or (3) the victim resides." Id. § 1-6(t). Section 16-36 similarly provides, for the purposes of identity theft, that venue "shall be proper in any county where the person described in the personal identification information or personal identification document in question resides or has his or her principal place of business." Id. § 16-36.

¶ 15 Defendant maintains that the provision allowing for venue where the victim resides conflicts with the constitution because no aspect of the crime of identity theft is connected to the location of the victim's residence. In his view, such a location is therefore arbitrary in relation to the offense.

¶ 16 In considering defendant's argument, we examine the special venue provision in the context of the nature of the crime. The offense of identity theft can be committed in multiple ways. Under section 16-30(a)(1) of the Code, a person commits identity theft when he or she knowingly "uses any personal identifying information or personal identification document of another person to fraudulently obtain credit, money goods, services, or other property." Id. § 16-30(a)(1) (added by Pub. Act 97-597, § 5 (eff. Jan. 1, 2012)). The crime involves the...