Docket No. 95750-Agenda 5-November 2003.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. TED B.
GRAY, Appellant.
Opinion filed January 21, 2005.
JUSTICE KILBRIDE delivered the opinion of the court:
Pursuant to a plea agreement, defendant Ted B. Gray pleadedguilty in Coles County to two counts of criminal sexual assault (720ILCS 5/12-13(a)(3) (West 1998)) and one count of unlawfulpossession of a weapon (430 ILCS 65/2(a)(1) (West 1998)). Whiledefendant was in prison serving the sentence he received in ColesCounty, an indictment was filed in Champaign County, chargingdefendant with five counts of predatory criminal sexual assault of achild (720 ILCS 5/12-14.1 (West 1998)). Four of the five ChampaignCounty counts were based on the same conduct that formed the basisof the Coles County prosecution. Defendant moved to dismiss thosefour counts, and the Champaign County circuit court denied hismotion.
Defendant appealed, arguing double jeopardy (188 Ill. 2d R.604(f)), and the appellate court affirmed the circuit court's judgment(336 Ill. App. 3d 356). We allowed defendant's petition for leave toappeal. 177 Ill. 2d R. 315(a). We now affirm the judgments of theappellate court and the circuit court and remand the cause to thecircuit court of Champaign County for further proceedings consistentwith this opinion.
I. BACKGROUND
On November 13, 2000, a five-count information was filedagainst defendant in Coles County. The first four counts allegedcriminal sexual assault, a Class 1 felony, in violation of sections12-13(a)(1) and 12-13(a)(3) (720 ILCS 5/12-13(a)(1), (a)(3) (West1998)) of the Criminal Code of 1961. The fifth count alleged unlawfulpossession of a weapon in violation of section 2(a)(1) of the FirearmOwners Identification Card Act (430 ILCS 65/2(a)(1) (West 1998)).That count was not related in any way to the offenses charged incounts I through IV.
Information later garnered through discovery suggested thatsome of the offenses charged in counts I though IV had occurred inColes County and some of those offenses had occurred in ChampaignCounty. Upon learning that some of the offenses charged in ColesCounty may have occurred in Champaign County, defendant placedColes County on notice of his affirmative defense of improper venueby filing a disclosure pursuant to Supreme Court Rule 413 (134 Ill. 2dR. 413).
Defendant then entered into a plea agreement with the ColesCounty State's Attorney, whereby defendant agreed to plead guilty tocounts I, II, and V, and the State agreed to dismiss counts III and IVand to recommend that any incarceration not exceed one year.Sometime after defendant tendered his plea, defendant's attorneybecame aware that Champaign County may have been conducting aninvestigation. Defendant's attorney then contacted the ChampaignCounty State's Attorney's office and gave notice of the pleaagreement in the Coles County proceeding, informing the ChampaignCounty office that some of the offenses charged in Coles Countyappeared to have been committed in Champaign County. AChampaign County assistant State's Attorney told defendant'sattorney that the Champaign County State's Attorney was not awareof any investigation and that he was "not then contemplating anycharges against [d]efendant." On June 27, 2001, after pleading guiltybut before sentencing, defendant received a presentence reportindicating that the Champaign County State's Attorney was indeedcontemplating filing charges against him.
A few days later, in the Coles County circuit court, defendantfiled a "Motion to Supplement Record in Support of Plea andAlternatively for Leave to Withdraw Plea." In that motion, defendantstated: "[T]he People's discovery indicated that a number of the actsalleged in Counts I through IV took place in Champaign Countyrather than Coles County." Defendant also noted defense counsel'sprior discussion with the Champaign County assistant State'sAttorney's office. Defendant acknowledged in his motion that inpleading guilty, he had knowingly and intelligently waived anyobjection to the improper venue. Accordingly, defendant requestedleave to supplement the record supporting his guilty plea by addingthe State's disclosures to protect his constitutional rights shouldChampaign County seek prosecution against him. Alternatively, herequested leave to withdraw his guilty plea. The court alloweddefendant's request to supplement the record, and the guilty plea wasnot withdrawn.
On July 3, 2001, pursuant to the plea agreement, the ColesCounty circuit court entered judgment on counts I, II, and V andsentenced defendant to concurrent sentences of five years on eachcount. The State dismissed counts III and IV. Two months later, theChampaign County State's Attorney filed the five-count informationagainst defendant in Champaign County at issue in the present case.All five counts charged defendant with predatory criminal sexualassault of a child (720 ILCS 5/12-14.1 (West 1998)), a Class Xfelony.
Defendant filed a motion to dismiss all of the counts filed inChampaign County, except count III, on grounds of double jeopardyand immunity. He did not seek to dismiss count III because it allegedan act that was not charged in the Coles County case. The Stateadmitted that the Coles County charges and the Champaign Countycharges were based on the same acts. The Champaign County circuitcourt denied defendant's motion. Defendant took an interlocutoryappeal to the appellate court arguing double jeopardy under SupremeCourt Rule 604(f) (188 Ill. 2d R. 604(f)), and the appellate courtaffirmed (336 Ill. App. 3d 356). We allowed defendant's petition forleave to appeal. 177 Ill. 2d R. 315(a).
II. ANALYSIS
Defendant has not challenged the two convictions that warrantedhis imprisonment, and those convictions have never been overturned.Instead, defendant asks this court to enforce the Coles County pleaagreement and prevent the Champaign County State's Attorney fromprosecuting him for crimes based upon the same conduct as thoseoffenses that were included as part of the Coles County pleaagreement. Defendant has framed the issue as whether the ChampaignCounty charges are barred by double jeopardy or by principles ofimplied immunity "by virtue of the executed and final plea agreementin Coles County which any court in Illinois must enforce." In makingthis argument, defendant relies heavily on the use of the "same-conduct" test adopted by the United States Supreme Court in Gradyv. Corbin, 495 U.S. 508, 521-22, 109 L. Ed. 2d 548, 564-65, 110 S.Ct. 2084, 2093 (1990). The Corbin decision was later overruled,however, in United States v. Dixon, 509 U.S. 688, 704, 125 L. Ed. 2d556, 573, 113 S. Ct. 2849, 2860 (1993).
The double jeopardy clauses of the federal and Illinoisconstitutions prohibit twice subjecting a defendant to "jeopardy of lifeor limb" for the same offense. U.S. Const., amends. V, XIV; Ill.Const. 1970, art. I,