People v. Thingvold

• Decision Date: 19 December 1991
• Docket Number: No. 69663,69663
• Citation: 164 Ill.Dec. 877,584 N.E.2d 89,145 Ill.2d 441
• Parties: , 164 Ill.Dec. 877 The PEOPLE of the State of Illinois, Appellant, v. Raymond THINGVOLD, Appellee.
• Court: Illinois Supreme Court

Page 89

584 N.E.2d 89

145 Ill.2d 441, 164 Ill.Dec. 877

The PEOPLE of the State of Illinois, Appellant, v. Raymond THINGVOLD, Appellee.

No. 69663.

Supreme Court of Illinois Dec. 19, 1991.

Neil F. Hartigan, Atty. Gen., of Springfield, and Paul A. Logli, State's Atty., of Rockford (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen and Jack Donatelli, Asst. Attys. Gen., of Chicago, and Kenneth R. Boyle, William L. Browers and Marshall M. Stevens, Office of State's Attys. App. Prosecutor, Elgin, of counsel), for the people.

Mary Robinson, Robinson & Skelnik, Elgin, for appellee.

Justice CLARK delivered the opinion of the court:

On June 25, 1987, defendant, Raymond Thingvold, was charged pursuant to an information filed by the Winnebago County State's Attorney with the offense of solicitation (Ill.Rev.Stat.1985, ch. 38, par. 8-1). The information charged that between December 1, 1983, and April 30, 1986, defendant solicited George Nalan to commit the murder of defendant's wife, Barbara Thingvold. Defendant was found guilty after a jury trial, and sentenced to 25 years in prison.

The appellate court reversed defendant's conviction and remanded for a new trial. The appellate court held that other-crimes evidence, specifically that Barbara Thingvold was stabbed numerous times on April 26, 1986, and that Barbara Thingvold was stabbed to death on March 10, 1987, was erroneously admitted since the State failed to link defendant to either of these incidents. (191 Ill.App.3d 144, 138 Ill.Dec. 490, 547 N.E.2d 657.) We granted the State's petition for leave to appeal (134 Ill.2d R. 315). In addition, defendant has requested cross-relief (134 Ill.2d R. 315(g)), arguing that the information with which he was charged was deficient because it failed to allege that any criminal conduct occurred within the applicable statute of limitations period, and failed to adequately plead an exception to the statute of limitations.

We will first analyze defendant's assertion that the information was defective. The information, filed on June 25, 1987, reads:

"That between the dates of December 1, 1983 and the 30th of April, 1986, in the County of Winnebago and the State of Illinois, RAYMOND J. THINGVOLD committed the offense of Solicitation in that he, with the intent that the offense of murder be committed by George Nalan, encouraged or requested the said George Nalan to commit the offense of murder, this offense being based upon a series of acts performed at different times, in violation of Paragraph 8-1 and 3-8, chapter 38, Illinois Revised Statutes."

A prosecution for the offense of solicitation must commence within three years of the commission of the crime. (Ill.Rev.Stat.1987 ch. 38, par. 3-5(b).) However, when the offense is based upon a series of acts performed at different times, the limitation period starts when the last such act is committed. Ill.Rev.Stat.1987, ch. 38, par. 3-8.

As he did in his pretrial motion to dismiss and his post-trial motion in arrest of judgment, defendant argues that the information failed to allege that the offense of solicitation occurred within the applicable statute of limitations. Defendant maintains that since the information was filed on June 25, 1987, the period of time from December 1, 1983, through June 24, 1984, is clearly outside the three-year statute of limitations period. Thus, to prosecute defendant for conduct outside the period fixed by the statute of limitations, facts must be alleged and proved which would toll the running of the statute of limitations under an exception to the statute. (See People v. Strait (1978), 72 Ill.2d 503, 505-06, 21 Ill.Dec. 365, 381 N.E.2d 692.) In this case, in order to toll the statute of limitations under section 3-8 of the Criminal Code of 1961 defendant argues, the State should have alleged in the information that the last act of solicitation occurred after June 24, 1984, and therefore the entire information would have been within the statute of limitations period. Defendant relies primarily on People v. Toolen (1983), 116 Ill.App.3d 632, 72 Ill.Dec. 41, 451 N.E.2d 1364, as support for his assertion that the information is deficient.

In Toolen, the indictment, filed on January 29, 1982, alleged that the criminal conduct occurred "between January 1, 1979 and October 1980." The first month of that period was beyond the limitation period, and no facts in the indictment established that the last of any series of acts occurred later than that first month. Consequently, the appellate court dismissed the indictment because the State failed to allege facts giving rise to the exception for a series of acts (section 3-8). Toolen, 116 Ill.App.3d at 653, 72 Ill.Dec. 41, 451 N.E.2d 1364.

In the present case, the appellate court, in discussing this issue, acknowledged that "[n]owhere * * * does the information allege that any of defendant's actions were performed within the limitation period. No facts are alleged that even the last of the series of acts occurred after June 24, 1984." (191 Ill.App.3d at 147, 138 Ill.Dec. 490, 547 N.E.2d 657.) Nonetheless, the appellate court concluded that this is not "fatal" and that "the information in the case before us was sufficiently explicit to enable defendant to prepare his defense and to apprise him that the last act occurred within the time prescribed by the statute of limitations." (191 Ill.App.3d at 147, 138 Ill.Dec. 490, 547 N.E.2d 657.) As support for this conclusion, the appellate court noted that the information alleged the applicability of section 3-8, which put defendant on notice that he was being charged with a series of actions in the relevant period, and further, the trial court instructed the jury that it must find that defendant solicited Nalan on at least one occasion within the applicable limitations period.

We find that the appellate court applied the wrong analysis in evaluating defendant's information, and that the information is fatally deficient. The appellate court's analysis shows that it applied a standard of review that should be invoked only when a defendant challenges an information or indictment for the first time on appeal. When an indictment or information is attacked for the first time on appeal, it is sufficient that the indictment or information "apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct." (People v. Gilmore (1976), 63 Ill.2d 23, 29, 344 N.E.2d 456; People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437.) In other words, the appellate court should consider whether the defect in the information or indictment prejudiced the defendant in preparing his defense. If, however, the information or indictment is attacked before trial, as in this case, the information must strictly comply with the pleading requirements of the Code of Criminal Procedure of 1963. See Ill.Rev.Stat.1989, ch. 38 par. 111-3(a); People v. Smith (1984), 99 Ill.2d 467, 77 Ill.Dec. 108, 459 N.E.2d 1357; Gilmore, 63 Ill.2d at 29, 344 N.E.2d 456; Pujoue, 61 Ill.2d at 339, 335 N.E.2d 437.

The information is fatally deficient. In People v. Strait, this court stated:

"[There is] the long-established rule that if the indictment or information shows on its face that the offense was not committed within the period of limitation facts must be averred which invoke one of the exceptions contained in the statute." (Emphasis added.) (Strait, 72 Ill.2d at 504-05, 21 Ill.Dec. 365, 381 N.E.2d 692.)

(See also People v. Morris (1990), 135 Ill.2d 540, 543, 143 Ill.Dec. 215, 554 N.E.2d 150.) The information failed to allege that any of defendant's actions occurred within the appropriate limitation period. As defendant explains in his brief, the State could prove exactly what it alleged in the information, that "between December 1, 1983 and April 30, 1986, defendant engaged in a series of acts performed at different times," without proving that any one act of solicitation occurred within the period of limitation. All of the alleged acts of solicitation of Nalan could have occurred before June 25, 1984, and still would have occurred between December 1, 1983, and April 30, 1986, as the information alleges.

Given that the information failed to allege that any of defendant's actions occurred within the period of limitation, the State was required under Strait to aver facts invoking one of the exceptions to the statute of limitations. In this case, the State relied upon section 3-8, which pertains to limitations applicable to an offense based upon a series of acts. But, the State failed to allege that even the last of a series of acts occurred within the appropriate limitation period. Consequently, defendant's information is insufficient to charge defendant with solicitation of Nalan, and his conviction must be reversed.

The appellate court justified its decision by noting that the information alleged the applicability of section 3-8, and that the jury was instructed to find that defendant committed one act of solicitation within the limitations period. First, as noted above, in evaluating an information or indictment under a pretrial motion to dismiss, it is irrelevant that the jury was instructed to find one act of solicitation by the defendant within the limitations period. Second, and more importantly, asserting the legal conclusion that section 3-8 applies, without averring facts which support this conclusion, is insufficient. The State has failed to put the defendant on notice that any of his actions occurred within the period of limitation. Since defendant challenged the sufficiency of his information in a pretrial motion to dismiss, the information must strictly comply with the pleading requirements of the Code of Criminal Procedure.

Because the State may opt to recharge defendant for the solicitation of Nalan (see Ill.Rev.Stat.1987, ch. 38,...