People v. Chenoweth

• Decision Date: 11 October 2013
• Docket Number: Docket No. 4–12–0334.
• Citation: 996 N.E.2d 1258,375 Ill.Dec. 202,2013 IL App (4th) 120334
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Barbara J. CHENOWETH, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 120334

996 N.E.2d 1258

375 Ill.Dec. 202

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Barbara J. CHENOWETH, Defendant–Appellant.

Docket No. 4–12–0334.

Appellate Court of Illinois,

Fourth District.

Oct. 11, 2013.

Michael J. Pelletier, Karen Munoz, and Janieen R. Tarrance, all of State Appellate Defender's Office, of Springfield, for appellant.

Jonathan H. Barnard, State's Attorney, of Quincy (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice KNECHT delivered the judgment of the court, with opinion.

[375 Ill.Dec. 202]¶ 1 In January 2012, following a bench trial, defendant, Barbara J. Chenoweth, was found guilty of unlawful financial exploitation of an elderly person (720 ILCS 5/16–1.3(a) (West 2004)).

¶ 2 In March 2012, defendant filed (1) a motion to vacate judgment and dismiss the cause due to the expiration of the statute of limitations and (2) a motion to vacate judgment and dismiss the cause due to failure of the State to prove defendant guilty beyond a reasonable doubt. In April 2012, the trial court denied both motions and defendant was sentenced to four years' probation and ordered to pay $32,266 restitution.

¶ 3 On appeal, defendant asserts (1) her conviction and sentence for unlawful financialexploitation of an elderly person (720 ILCS 5/ 16–1.3(a) (West 2004)) must be vacated because the indictment and later information charging her with the offense (a) were filed after the statute of limitations had expired and (b) failed to allege any circumstances that would extend the limitations period; and (2) if her conviction and sentence are affirmed, she is entitled to $5 credit against her fine for time spent in pretrial custody.

¶ 4 I. BACKGROUND

¶ 5 In October 2008, Detective Thomas Liesen was contacted by Vickie Tipton, head of guardianship for the West Central Illinois Area Agency on Aging (Agency on Aging), and Donna Schutte, the Illinois state regional ombudsman for the area. They informed him money from the March 2005 sale of Ella Stathakis' home was missing. At the time of the March 2005 sale through August 2008, defendant held the power of attorney for Ella. In September 2008, Lynn Niewohner from the Agency on Aging became Ella's power of attorney.

¶ 6 On October 15, 2008, Detective Liesen interviewed Ella. According to Detective Liesen, Ella “was wondering where the funds went from the sale of her home, wanted to know where it went. She had never been told, and she just wanted to know where it was.” Two days later, he issued a subpoena for her Bank of America records. He received the records in the mail on December 2, 2008.

¶ 7 While examining Ella's bank records, Detective Liesen noticed several checks written by defendant and drawn on Ella's account did not appear to be for Ella's benefit. These included multiple checks written for cash and to Mark Twain Casinos, one to the utility company for defendant's address, and one to the telephone company for defendant's daughter's telephone. On December 5, 2008, Detective Liesen spoke with Ella again. Ella told him she had not given defendant permission to write these checks or to pay other people's bills.

¶ 8 On December 11, 2008, Detective Liesen interviewed defendant. Defendant's daughter, Christina Shannon, was also present during the interview. Defendant told Detective Liesen some of the money from the sale of Ella's home was used to pay Ella's bills and some of the money was used to pay Shannon back money she “had fronted to keep the house going and to get the house ready for sale.” Defendant also explained she had taken out a loan in Ella's name to make repairs to Ella's house, ready the house for sale, and to pay Ella's nursing home bill. Specifically, defendant stated she had purchased window coverings, drapes, and paint for Ella's house, and had paid persons to paint the interior and exterior of the house. Defendant explained she did not have any receipts, and any she may have had, she had already given to the Illinois Department of Human Services. Detective Liesen further noted defendant used $4,000 of the sale proceeds to purchase a car for Shannon as compensation for work she had done for Ella, and he believed defendant kept $6,000 of the sale proceeds for herself.

¶ 9 On January 22, 2009, Detective Liesen sent a report of his investigation to the State's Attorney's office. On December 21, 2009, an Adams County indictment was filed charging defendant with three counts of unlawful financial exploitation of an elderly person.

¶ 10 In May 2010, defendant filed a motion to dismiss the indictment, asserting prosecution was not commenced within the statutory limitations period. On June 3, 2010, the State filed a motion to dismiss the bill of indictment and for leave to file an information alleging why the statute of limitations did not prohibit its charges. On June 9, 2010, the trial court granted the State's motion. That same day, the State filed an information charging defendant with three counts of unlawful financial exploitation of an elderly person. The State alleged the statute of limitations was stayed “in that this same charge was filed against the defendant on 12–21–09 by Bill of Indictment, which was within one (1) year of the proper prosecuting officer, the Adams County State's Attorney, becoming aware of the offense when the investigative file * * * was referred to that prosecuting officer on 1–22–09.”

¶ 11 On June 14, 2010, defendant filed a motion to dismiss the information, again asserting the charges were filed beyond the applicable statute of limitations. On July 12, 2010, the trial court denied defendant's motion to dismiss, finding “the limitations period did not begin to run until the police report was delivered to the proper prosecuting officer which is January 22, 2009.”

¶ 12 In October 2010, defendant waived her right to a jury trial. In March 2011, defendant's bench trial commenced. Both parties submitted written closing arguments. In January 2012, the trial court found defendant guilty of unlawful financial exploitation of an elderly person.

¶ 13 In March 2012, defendant filed (1) a motion to vacate judgment and dismiss the cause due to the expiration of the statute of limitations and (2) a motion to vacate judgment and dismiss the cause due to failure of the State to prove defendant guilty beyond a reasonable doubt. In April 2012, the trial court denied both motions and defendant was sentenced to four years' probation and ordered to pay $32,266 restitution.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant asserts (1) her conviction and sentence for unlawful financial exploitation of an elderly person (720 ILCS 5/16–1.3(a) (West 2004)) must be vacated because the indictment and later information charging her with the offense (a) were filed after the statute of limitations had expired and (b) failed to allege any circumstances that would extend the limitations period; and (2) if her conviction and sentence are affirmed, she is entitled to $5 credit against her fine for time spent in pretrial custody.

¶ 17 A. Validity of the Indictment and Subsequent Information

¶ 18 Section 3–5(b) of the Criminal Code of 1961 (Criminal Code) provides as follows:

“Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3–6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony * * *.” 720 ILCS 5/3–5(b) (West 2004).

¶ 19 In this case, the State charged defendant by indictment on December 21, 2009, and by subsequent information on June 9, 2010, for crimes committed on or about December 1, 2004, through July 31, 2005. Thus, the State charged defendant with unlawful financial exploitation of an elderly person beyond the three-year limitation provided by statute. To circumvent the general statute of limitations, the State invoked section 3–6 of the Criminal Code in the subsequent information, which extends the statute of limitations, in part, under the following conditions:

“(a) A prosecution for theft involving a breach of a fiduciary obligation to the aggrieved person may be commenced as follows:

* * *

(2) In any other instance, within one year after the discovery of the offense by an aggrieved person, or by a person who has legal capacity to represent an aggrieved person or has a legal duty to report the offense, and is not himself or herself a party to the offense; or in the absence of such discovery, within one year after the proper prosecuting officer becomes aware of the offense. However, in no such case is the period of limitation so extended more than 3 years beyond the expiration of the period otherwise applicable.” 720 ILCS 5/3–6 (West 2004).

Specifically, the State asserted the “charge was filed against the defendant on 12–21–09 by Bill of Indictment, which was within one (1) year of the proper prosecuting officer, the Adams County State's Attorney, becoming aware of the offense when the investigative file * * * was referred to that prosecuting officer on 1–22–09.”

¶ 20 However, defendant contends because Ella, or a person who had the capacity to legally represent Ella, discovered the offense, the State was required “to allege and prove that the charges were filed within one year of the discovery of the offense by [Ella] or one who had the legal capacity to represent [her],” rather than within one year of the prosecuting officer becoming aware of the offense. Because the State did not allege and prove as such, defendant argues the indictment was invalid on its face, requiring her sentence and conviction to be vacated. The State disagrees, asserting it pleaded the appropriate exception because neither Ella nor a person with the legal capacity to represent her had actual knowledge that defendant had...