People v. Macon, No. 1-07-3378.

CourtUnited States Appellate Court of Illinois
Writing for the CourtTully
Citation336 Ill. Dec. 634,396 Ill. App.3d 451,920 N.E.2d 1224
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny MACON, Defendant-Appellant.
Decision Date18 December 2009
Docket NumberNo. 1-07-3378.
920 N.E.2d 1224
396 Ill. App.3d 451
336 Ill. Dec. 634
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
Johnny MACON, Defendant-Appellant.
No. 1-07-3378.
Appellate Court of Illinois, First District, Fifth Division.
December 18, 2009.

[920 N.E.2d 1226]

Michael J. Pelletier, State Appellate Defender, Thomas Lilien, Deputy Defender, Sherry R. Silvern, Assistant Appellate Defender, Office of the State Appellate Defender, Elgin, IL, for Plaintiff-Appellee.

Anita Alvarez, State's Attorney of Cook County (James E. Fitzgerald, Miles J. Keleher, Kelly Whalen, Assistant State's Attorneys, of Counsel), Chicago, IL, for Defendant-Appellant.

Justice TULLY delivered the opinion of the court:

Following a jury trial, defendant Johnny Macon was convicted of aggravated criminal sexual abuse by use of force or threat of force and was sentenced to six years' imprisonment. On appeal defendant contends that the trial court improperly denied his motion to dismiss the indictment for failing to file within the statute of limitations. Defendant also contends that the State failed to provide sufficient evidence necessary to convict defendant of aggravated criminal sexual abuse by use of force or threat of force.

The following evidence was adduced at trial. On May 19, 2002, defendant spent the night at victim T. S.'s home. Defendant was T. S.'s mother's boyfriend in May of 2002 and he had been for about two years. At that time T.S. and her sister, Tarhonda, shared a bedroom. Between 3 and 6 a.m. the next morning, defendant came into her bedroom and whispered in her ear to come with him to the living room and told her to lie down. Then, while laying on top of T. S., he tried to force his penis into her vagina while she tried to push him off. Tarhonda was awakened, went into the living room and saw defendant "going back and forth" while lying on top of T.S. Tarhonda corroborated T.S.'s testimony at trial. Later that day T.S.'s mother, Sherron Brown, asked her son to call the police.

On May 20, 2002, T.S. was interviewed by the Chicago police department and reported that she had been sexually assaulted by her mother's boyfriend. After initially interviewing the victim and her family, investigating police detective Joseph Agosta began to search for defendant. On May 24, 2002, he went to defendant's parents' home, which was defendant's last known address. No one answered the door and the detective did not return to that location again. Defendant was not located by the police until 2006 although he had resided at his parents' home until 2003. On June 17, 2002, Detective Agosta filed a complaint for preliminary investigation. Thereafter a judge issued a warrant for defendant's arrest. No other action was taken until March 31, 2006, when defendant was arrested. On April 20, 2006, an indictment was filed against defendant for criminal sexual assault occurring on May 20, 2002. On December 1, 2006, defendant filed a pretrial motion attacking the indictment, alleging that it was returned outside the statute of limitations. The motion was denied. On November 11, 2007, following the trial, the court denied defendant's motion to vacate the verdict due to a statute of limitations violation. Defendant timely appeals.

The defendant appeals the denial of the motion to dismiss the indictment and contends the indictment on its face is defective because it was filed after the statute of limitations had expired. Defendant further contends that if the State had intended to raise any exception to the statute

920 N.E.2d 1227

of limitation, the grounds to apply the exception must be alleged in the indictment.

Because review of a trial court's denial of defendant's motion to dismiss the indictment based on the violation of the statute of limitations involves a legal issue, we review de novo. People v. Mann, 341 Ill.App.3d 832, 836, 276 Ill.Dec. 530, 794 N.E.2d 425 (2003).

The statute of limitations in Illinois requires that, unless specifically provided for elsewhere, a defendant be prosecuted for any felony offense within three years of the commission of that offense. 720 ILCS 5/3-5(b) (West 2002). The felony offense defendant was convicted of does not provide for an exception to the statute of limitations. Therefore, in the instant case the pertinent question for the court to determine is what constitutes the prosecution of an offense when that offense is a felony. The legislature has defined the term "prosecution" to mean "all legal proceedings by which a person's liability for an offense is determined, commencing with the return of the indictment or the issuance of the information." 720 ILCS 5/2-16 (West 2002). Furthermore, "a prosecution may be commenced by: (a) A complaint; (b) An information; or (c) An indictment." 725 ILCS 5/111-1 (West 2002). The legislature also distinguished between the prosecution of a felony and other offenses, providing in part: "All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived * * *," while "[a]ll other prosecutions may be by indictment, information or complaint." 725 ILCS 5/111-2(a), (b) (West 2002).

In response to defendant's contention, the State maintains that the filing of the complaint for preliminary examination and the issuance of an arrest warrant tolled the statute of limitations. It argues that the prosecution of this offense was commenced upon initiation of adversarial proceedings. In support, the State first notes that Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 417 (1972), established that in determining when the sixth amendment right to counsel attaches, adversarial proceedings must be initiated by way of formal charge, preliminary hearing, indictment, information or arraignment. Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. Additionally, the State argues that People v. Curtis, 132 Ill.App.3d 241, 87 Ill.Dec. 170, 476 N.E.2d 1162 (1985), is helpful in determining when adversarial proceedings are initiated. Curtis holds that the initiation of adversarial proceedings triggers the accused's sixth amendment right to counsel and this occurs when the State files a felony complaint in circuit court. Curtis, 132 Ill.App.3d at 247, 87 Ill.Dec. 170, 476 N.E.2d 1162. After Curtis the courts further narrowed when the right to counsel would attach, requiring significant prosecutorial involvement in initiating adversarial proceedings. People v. Young, 153 Ill.2d 383, 404-05, 180 Ill.Dec. 229, 607 N.E.2d 123 (1992). A complaint could only be an initiation of adversarial proceedings affording a right to counsel if the complaint were filed by the State's Attorney. People v. Garrett, 179 Ill.2d 239, 250, 227 Ill.Dec. 921, 688 N.E.2d 614 (1997). The courts were evaluating the question based upon the actions of the State by looking at what documents had been filed rather than looking at what was occurring at certain stages in the prosecutorial process that would require the accused be represented by an attorney. The right to counsel is a protection that has most recently been revisited by the United States Supreme Court in Rothgery v. Gillespie County, 554 U.S. ___, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008). The Supreme

920 N.E.2d 1228

Court held that the right to counsel attaches when the accused is brought before a judicial officer and is told of the formal accusation against him and his liberty is subject to restriction. Rothgery, 554 U.S. at ___, 128 S.Ct. at 2583, 2592, 171 L.Ed.2d at 374-75, 383. The court in Rothgery specifically rejects the argument that right to counsel is invoked upon the filing of formal documents or upon the direct involvement of a prosecutor. Rothgery, 554 U.S. at ___, 128 S.Ct. at 2590, 171 L.Ed.2d at 381.

The State argues that the same reasoning used in those cases applies to statute of limitations cases in order to determine when the State has commenced prosecution, thereby tolling the statute. In the instant case a complaint for preliminary examination was filed prior to the expiration of the statute. Consequently, the State maintains the indictment was not deficient and, accordingly, it was not required to plead any grounds that would have extended or suspended the statute of limitations.

We believe...

To continue reading

Request your trial
26 cases
  • People v. Lutter, 2–14–0139.
    • United States
    • United States Appellate Court of Illinois
    • May 18, 2015
    ...procedural sleight of hand” (infra ¶ 59), and which runs counter to the purpose of the statute of limitations. See People v. Macon, 396 Ill.App.3d 451, 456, 336 Ill.Dec. 634, 920 N.E.2d 1224 (2009) (“The purpose of providing limitations periods for offenses is to minimize the danger of puni......
  • People v. Leavitt, 1–12–1323.
    • United States
    • United States Appellate Court of Illinois
    • November 21, 2014
    ...35 A. Standard of Review ¶ 36 We review a motion to dismiss an indictment on statute of limitations grounds de novo. People v. Macon, 396 Ill.App.3d 451, 454, 336 Ill.Dec. 634, 920 N.E.2d 1224 (2009) ; People v. Mann, 341 Ill.App.3d 832, 836, 276 Ill.Dec. 530, 794 N.E.2d 425 (2003) ; People......
  • People v. Casas, Docket No. 120797
    • United States
    • Supreme Court of Illinois
    • December 5, 2017
    ...based on the violation of the statute of limitations involves a legal issue. Thus, our review is de novo . People v. Macon , 396 Ill.App. 3d 451, 454, 336 Ill.Dec. 634, 920 N.E.2d 1224 (2009) ; People v. Mann , 341 Ill.App. 3d 832, 836, 276 Ill.Dec. 530, 794 N.E.2d 425 (2003). Resolution of......
  • People v. King, 2-15-1112
    • United States
    • United States Appellate Court of Illinois
    • August 21, 2018
    ...based upon an evidentiary error, to prevent the risk of double jeopardy, we must also consider this argument. See People v. Macon , 396 Ill. App. 3d 451, 458, 336 Ill.Dec. 634, 920 N.E.2d 1224 (2009). When a defendant challenges the sufficiency 127 N.E.3d 124430 Ill.Dec. 888 of the evidence......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT