People v. Correa
| Decision Date | 31 March 1993 |
| Docket Number | No. 1-91-3422,1-91-3422 |
| Citation | 244 Ill.App.3d 307,614 N.E.2d 1246,185 Ill.Dec. 561 |
| Parties | , 185 Ill.Dec. 561 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jose CORREA, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, Kevin Sweeney, George J. Arnold, of counsel), for plaintiff-appellant.
Levin & Perconti, John C. Egan, Ltd., Chicago (Steven M. Levin, John C. Egan of counsel), for defendant-appellee.
The State appeals from the trial court's dismissal of the four-count indictment against defendant Jose Correa on double jeopardy grounds. According to the State, the order of dismissal was erroneous, defendant should have been barred from raising double jeopardy and the trial court erred in accepting defendant's guilty plea to the traffic charges.
On June 24, 1989, around 5:30 p.m., defendant was driving a Ford Ranger near 6300 West North Avenue in Chicago, when he struck Peter Caracci. Caracci died of multiple internal injuries. An open alcohol container was recovered from defendant's truck, and defendant failed a sobriety test. Four citations were issued at the accident site: driving across the median, driving under the influence of alcohol, possession of alcohol by a motorist and operation of a vehicle without due caution. Ill.Rev.Stat.1989, ch. 95 1/2, pars. 11-708(d), 11-501, 11-502; Chicago Municipal Code, § 27-255.
Subsequently, defendant was indicted for reckless homicide and driving under the influence of alcohol. The two counts of reckless homicide charged defendant with striking the victim while defendant's blood-alcohol level was above .10, and driving under the influence of alcohol and at an excessive rate of speed. The case was assigned and on December 8, 1989, defendant consented to a plea conference in the criminal division of the circuit court of Cook County. Nothing, however, then occurred.
On January 16, 1991, defendant was arrested and held in custody overnight. The following morning he appeared in traffic court, and the following colloquy occurred:
The trial court asked if defense counsel wanted a continuance for sentencing, and counsel replied that defendant could be sentenced immediately. The trial court then questioned defendant concerning the four citations and accepted defendant's plea. The court sentenced defendant to one year conditional discharge and imposed a $500 fine.
On March 14, 1991, defendant filed a motion to dismiss the four-count indictment on double jeopardy grounds. At the hearing on defendant's motion, Assistant State's Attorneys Kathy Hanlon and Edward Snow testified that they participated in the plea conference in defendant's case, and the trial court indicated that defendant would receive a penitentiary term upon a plea. Snow further testified he was led to believe by defense counsel and the court that no other charges arising from the traffic fatality were pending against defendant.
The trial court granted defendant's motion, finding that the United States Supreme Court's decision in Grady v. Corbin (1990), 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548, required such a result.
Initially, the State contends that the trial court erred in granting defendant's motion to dismiss because there was no indication that the State would need to prove conduct in the reckless homicide trial for which defendant had been prosecuted. Under the test set forth in Grady, a successive prosecution is barred on double jeopardy grounds if "to establish an essential element of an offense charged in that prosecution, [the State] will prove conduct that constitutes an offense for which the defendant has already been prosecuted." (Grady v. Corbin, 495 U.S. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564.) The State contends that the trial court erred in granting defendant's motion because conduct other than that for which defendant was convicted could have been utilized as an essential element of the reckless homicide charge.
In the instant case, the indictment charged defendant with one count of reckless homicide based upon striking a pedestrian while defendant's blood-alcohol content was greater than .10, and the second count of reckless homicide charged defendant with driving under the influence of alcohol at an excessive speed and striking the victim. Defendant pleaded guilty to four traffic citations, specifically for driving across the median, driving while under the influence of alcohol, possession of alcohol by a motorist and negligent driving by striking a pedestrian. While the State contends that it need not rely on conduct for which defendant has been convicted to establish reckless homicide, our review of the indictment and defendant's previous convictions reveals that the State must rely upon conduct for which defendant was previously convicted in order to conform to the offenses charged in the indictment.
In the instant case, defendant set forth evidence indicating that the indictment for reckless homicide presents charges for which he was previously placed in jeopardy. Once defendant presents a non-frivolous showing on this issue, the State has the burden of demonstrating that the charged offenses are separate and distinct from the previously prosecuted offenses. (People v. Stefan (1992), 146 Ill.2d 324, 341, 166 Ill.Dec. 910, 586 N.E.2d 1239, citing Corbin, 495 U.S. at 522 n. 14, 110 S.Ct. at 2094 n. 14, 109 L.Ed.2d at 565 n. 14.) The State did not meet this burden, and the indictment was properly dismissed on double jeopardy grounds.
The State further asserts that defendant should be barred from raising double jeopardy based upon defense counsel's failure to inform the court of the death of the victim and the pending felony charges. In support of this contention, the State cites Semmens v. Semmens (1979), 77 Ill.App.3d 936, 33 Ill.Dec. 558, 396 N.E.2d 1282, for the proposition that attorneys must be honest and forthright in their course of conduct with the court.
Semmens is clearly distinguishable from the instant case. In Semmens counsel submitted a settlement agreement in a divorce action without informing the court that there was an addendum to the agreement. Further, counsel presented testimony that the settlement agreement was fair, but failed to present any information about the modification. The court concluded that this situation constituted misrepresentation by counsel, who did not simply remain silent; rather, counsel informed the court that the parties had reached a settlement agreement and presented testimony concerning the agreement without divulging that this did not represent the actual agreement.
In the instant case, defense counsel neither informed the court during the proceedings on the traffic citation that a fatality was involved nor that felony charges were pending against defendant. This silence did not present a direct misrepresentation. We do not approve the conduct of counsel in permitting the court to err in the face of his knowledge that the court was proceeding under a missupposition. However, such conduct on the part of counsel does not invalidate the judgment entered by the court so as to preclude the attachment of double jeopardy.
The State asserts that defense counsel procured the initial prosecution and then wrongfully failed to disclose the fatality and felony charges. However, defendant was arrested on January 16, 1991, held in jail overnight and his case was...
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People v. Correa
...authority, the Appellate Court, First District, is directed to vacate its judgment in the case of People v. Correa, (1993), 244 Ill.App.3d 307, 185 Ill.Dec. 561, 614 N.E.2d 1246, and to enter an order reversing the circuit court and remanding for further proceedings consistent with United S......