People v. Casas
| Decision Date | 20 April 2018 |
| Docket Number | No. 2–15–0456,2–15–0456 |
| Citation | 103 N.E.3d 928,2018 IL App (2d) 150456 -B |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellant, v. Fernando CASAS Jr., Defendant–Appellee. |
| Court | United States Appellate Court of Illinois |
Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Eldad Z. Malamuth, Assistant Attorneys General, of counsel), for the People.
Mark H. Kusatzky, of Law Offices of Mark H. Kusatzky, of Northfield, for appellee.
¶ 1 In our first opinion in this case, we held that "the offense of violation of bail bond is a continuing offense such that the limitations period on a violation-of-bail-bond prosecution is tolled until an offender is returned to custody." People v. Casas , 2016 IL App (2d) 150456, ¶ 1, 406 Ill.Dec. 7, 59 N.E.3d 785. We thus held that the charge against defendant, Fernando Casas Jr., was filed within the limitations period and we reversed the trial court's dismissal of the charge. On further appeal, the supreme court agreed that the offense is a continuing offense but held that the limitations period is tolled only until the offender "no longer has an obligation to appear in court." People v. Casas , 2017 IL 120797, ¶ 43, ––– Ill.Dec. ––––, ––– N.E.3d ––––. The court thus held that the charge here was not filed within the limitations period (unless that period was otherwise tolled). Id. ¶ 44. The court then directed us to consider the State's contention that "its reference to defendant's use of a false identification in the information qualified as an exception to the limitations period applicable when a criminal defendant ‘is not usually and publicly resident within this State’ " under section 3–7(a) of the Criminal Code of 2012 (Criminal Code). Id. ¶ 45 (quoting 720 ILCS 5/3–7(a) (West 2014) ). We now consider that contention and, ultimately, we agree with the State. Accordingly, as before, we reverse the trial court's dismissal of the charge.
¶ 2 For the reader's convenience, we will restate the factual background of this case. At some point in 1996 (the record does not indicate precisely when), defendant was indicted by the statewide grand jury for the manufacture or delivery of cocaine in excess of 900 grams, a Class X felony. The case was transferred to Du Page County under case No. 96–CF–1920. On October 16, 1996, the trial court admitted defendant to bail in the amount of $750,000; he posted a 10% cash bond. Thereafter, defendant regularly appeared in court for the case. On June 9, 1998, however, defendant failed to appear in court; the trial court ordered that defendant's bond was forfeited and it issued a bench warrant for his arrest. During the next 30 days, defendant did not surrender himself to authorities. Later, defendant was tried in absentia on the cocaine charge, found guilty, and sentenced to 20 years' imprisonment.
¶ 3 On April 5, 2014, roughly 18 years after defendant was first indicted, the police stopped defendant for a traffic offense in Du Page County. During that stop, defendant gave the police a false name and a fake ID. In subsequent conversations with the police, defendant revealed his true identity, admitted that he stopped going to court in the 1996 case, and acknowledged the warrant for his arrest. Defendant also confessed that, because of the arrest warrant, he had used two different false identities—including the one on the fake ID, which he purchased in Mexico—to avoid apprehension while living in the United States.
¶ 4 Based on these facts, in December 2014, defendant was indicted for the violation of his 1996 bail bond. The Criminal Code sets forth the offense of violation of a bail bond as follows:
"Whoever, having been admitted to bail for appearance before any court of this State, incurs a forfeiture of the bail and knowingly fails to surrender himself or herself within 30 days following the date of the forfeiture, commits, if the bail was given in connection with a charge of [a] felony * * *, a felony of the next lower Class * * *." 720 ILCS 5/32–10(a) (West 2014).
The State's indictment alleged that defendant forfeited his bond by failing to appear in court on June 9, 1998, and by knowingly failing to surrender himself within 30 days of that date. The offense was charged as a Class 1 felony because defendant's underlying cocaine charge was a Class X felony.
¶ 5 Defendant moved to dismiss the indictment, arguing that a prosecution for violation of his bail bond was time-barred. 725 ILCS 5/114–1(a)(2) (West 2014). More specifically, defendant claimed that, under the general statute of limitations for felonies, the State had three years to bring the bail-bond charge against him ( 720 ILCS 5/3–5(b) (West 2014) ), or until July 10, 2001. Defendant noted that more than three years had passed, and he asserted that the State did not allege any facts in the indictment that would toll or extend the three-year limitations period. See generally id. § 3–6 (); id. § 3–7 (); id. § 3–8 ().
¶ 6 In response, the State filed a superseding information, which provided as follows:
"[O]n or about July 9, 1998, and continuing through and until April 5, 2014, [defendant] committed the offense of VIOLATION OF BAIL BOND, a Class 1 felony, in that * * * defendant, after having been admitted to bail on or about October 16, 1996, for appearance in the Circuit Court of DuPage County * * * in case 96–CF–1920, and on or about June 9, 1998, he incurred a forfeiture of his bail and thereafter knowingly, willfully, and unlawfully failed to surrender himself within 30 days following the date of the forfeiture of the bail, in violation of [section 32–10(a) of the Criminal Code ( 720 ILCS 5/32–10(a) (West 2014) ) ]; and because Violation of Bail Bond should be considered a continuing offense, the statute of limitations did not start running until April 5, 2014, when defendant was apprehended and admitted that he used [a] false identity to evade prosecution."
¶ 7 In a footnote in the information, the State asserted that "[t]his Court is bound by People v. Grogan , 197 Ill. App. 3d 18, 143 Ill.Dec. 730, 554 N.E.2d 665 (1st Dist. 1990), which held that violation of a bail bond is not a continuing offense." (Emphasis in original.) The information then noted that the State was "mak[ing] a good[-]faith argument that Grogan was improperly decided and should be overruled." The State's use of the phrase "continuing offense" in the information was a reference to section 3–8 of the Criminal Code, which tolls the three-year limitations period as follows: "When an offense is based on a series of acts performed at different times, the period of limitation prescribed by this Article starts at the time when the last such act is committed." 720 ILCS 5/3–8 (West 2014).
¶ 8 Defendant had no objection to the information, and the trial court granted the State leave to file the information in place of its earlier indictment. Defendant, however, stood on his earlier-filed motion to dismiss. The trial court granted defendant's motion to dismiss, finding that, pursuant to Grogan , defendant's prosecution for violation of his bail bond was time-barred. The State timely appealed. See Ill. S. Ct. R. 604(a)(1) (eff. Mar. 8, 2016).
¶ 9 On appeal, the State contended that violation of a bail bond is a continuing offense under section 3–8 of the Criminal Code ( 720 ILCS 5/3–8 (West 2014) ) and that Grogan was wrongly decided. Thus, according to the State, the limitations period was tolled when the offense was initially committed, and it began to run once defendant was taken into custody. Accordingly, because defendant was charged with the bail-bond offense well within three years from the date of his arrest, the statute of limitations was not violated. In the alternative, the State argued that its reference to defendant's use of a false identity qualified as an exception to the limitations period for when a criminal defendant "is not usually and publicly resident within this State" (id. § 3–7(a) ). We agreed with the State on the first issue and thus did not address the second. Casas , 2016 IL App (2d) 150456, ¶ 9, 406 Ill.Dec. 7, 59 N.E.3d 785.
¶ 10 After our disposition, the supreme court granted defendant's petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). As noted, the court agreed that violation of a bail bond is a continuing offense and that the limitations period was tolled when the offense was initially committed. However, the court held that the period began to run not when defendant was taken into custody in 2014 but rather when he was convicted and sentenced in absentia on the underlying cocaine offense.1 In other words, once defendant was convicted and sentenced, his obligation to appear terminated and he was no longer violating his bail bond. Casas , 2017 IL 120797, ¶ 43, ––– Ill.Dec. ––––, ––– N.E.3d ––––.
¶ 11 Thus, because defendant was convicted and sentenced in the underlying criminal case "in either 1998 or 1999," the supreme court determined that the bail-bond charge had not been filed within the limitations period, unless that period was otherwise tolled. Id. The court thus remanded the cause for us to consider the State's alternative argument that the limitations period was tolled under the publicly-resident exception in section 3–7(a) of the Criminal Code, which we do now.
¶ 12 Our supreme court has declined to rigidly define what is required for the State to invoke an exception to the statute of limitations. See People v. Morris , 135 Ill. 2d 540, 547, 143 Ill.Dec. 215, 554 N.E.2d 150 (1990). The standard for assessing the sufficiency of a charging instrument —both for the offense and for exceptions to the statute of limitations—is...
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