THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THADDEUS JIMENEZ, Defendant-Appellant.
No. 1-18-2164
Appellate Court of Illinois, First District, Second Division
December 29, 2020
Rehearing denied January 14, 2021
2020 IL App (1st) 182164
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-CR-18380(01); the Hon. Catherine M. Haberkorn, Judge, presiding. Judgment Affirmed.
James E. Chadd, Patricia Mysza, and Kieran M. Wiberg, of State Appellate Defender‘s Office, of Chicago, for appellant.
Kimberly M. Foxx, State‘s Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Veronica Calderon Malavia, Assistant State‘s Attorneys, of counsel), for the People.
OPINION
¶ 1 Following a guilty plea, defendant Thaddeus Jimenez was sentenced to 110
I. BACKGROUND
¶ 2 ¶ 3 The facts necessary to our disposition of this appeal are as follows. On August 17, 2015, defendant was driving his car in Chicago‘s Irving Park neighborhood. He was accompanied by codefendant, Jose Roman.1 Defendant had a .380 caliber pistol, and Roman had a .22 semi-automatic long rifle, which he placed beside him on the passenger seat of the car. While driving through the neighborhood, defendant pulled next to another vehicle that was driven by Earl Casteel, a gang member whom defendant knew. Casteel got out of the car and approached defendant, who was still in the driver‘s seat. Defendant asked Casteel “[w]hy shouldn‘t I blast you right now?” Defendant then shot Casteel twice, once in each leg and drove away. Chicago Police Officers pursued defendant in a marked car, but defendant did not pull over. After defendant collided with a parked vehicle, he exited the car with a pistol in his hand, dropped it in a nearby yard, and fled from the officers on foot. Defendant was eventually apprehended and placed under arrest.
¶ 4 Defendant faced criminal charges in both federal and state court. On August 19, 2015, defendant was initially charged with aggravated battery and multiple weapon offenses in the circuit court of Cook County. Later that month, on August 26, 2015, a federal indictment was filed in the Northern District of Illinois, charging defendant with possession of a firearm by a convicted felon in violation of
¶ 5 On June 22, 2016, defendant pled guilty to the federal charge and was subsequently sentenced to 110 months in federal prison. Pursuant to section 3-4(c) of the Criminal Code (
¶ 6 After a hearing on June 22, 2018, the circuit court held that the other weapon charges were barred under section 3-4(c)(1) of the Criminal Code. However, the attempted murder and aggravated battery charges were not bаrred, as they involved elements distinct from the federal weapon possession charge. The court found that the “State‘s charges [were] clearly different charges than those which were pled in federal court.” The court noted that had “it only been the gun case, that would [have been] a different issue.” However, given that the “State‘s charges include[d] the six counts of attempt[ed] murder as well as one count of aggravated battery of a firearm,” these charges included “necessary elements that did not exist at all in the federal charge of the gun case.” As such, the circuit court found that the attempted murder and aggravated battery charges did not violate defendant‘s right against double jeopardy as they included “different elements that must be proved by the State” and not the same elements as the federal weapon possession charge. Thus, the circuit court granted in part, and denied in part, defendant‘s motion to dismiss. Defendant appealed.
II. ANALYSIS
¶ 8 On appeal, defendant argues that the charges of attempted murder and aggravated battery should have been dismissed under section 3-4(c)(1) of the Criminal Code because (1) the firearm сharge in federal court and the state charges of attempted murder and aggravated battery with a firearm stemmed from the same conduct and (2) neither prosecution required proof of a fact that was not required in the other prosecution.
A. Standard of Review
¶ 10 Prior to addressing the merits of this appeal, we must first consider our standard of review. Generally, a circuit court‘s ruling on a motion to dismiss а charge on double jeopardy grounds will not be reversed on appeal absent an abuse of discretion. People v. Griffith, 404 Ill. App. 3d 1072, 1079 (2010). “However, when neither the credibility of witnesses nor the facts are at issue, the issue presents a question of law, and the standard of review is de novo.” People v. Staple, 2016 IL App (4th) 160061, ¶ 12. Because neither the credibility of the witnesses nor the facts are in dispute, the issue here is purely a legal question that we review de novo.
¶ 11 Rеsolution of the legal question turns on the interpretation of section 3-4(c)(1) of the Criminal Code and
B. Double Jeopardy
¶ 13 We now turn to defendant‘s argument that the state charges against him were a violation of the double jeopardy clause under section 3-4(c)(1) of the Criminal Code.3 The double jeopardy clause prohibits an accused from being tried more than once for the same offense. People v. Bellmyer, 199 Ill. 2d 529, 536-37 (2002). “The prоhibition against double jeopardy is of both constitutional (
¶ 14 The purpose of the double jeopardy clause is to protect a citizen against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. People v. Henry, 204 Ill. 2d 267, 283 (2003). Notwithstanding the сonstitutional protection against double jeopardy, the separate-sovereigns doctrine provides that separate sovereigns, such as sister states or the federal and a state government, may prosecute the same individual for the same acts without offending the double jeopardy clause of either the state or the federal constitution. People v. Porter, 156 Ill. 2d 218, 221-22 (1993). The rationalе behind the separate-sovereigns doctrine is that ” ‘prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, “subject [the defendant] for the same offence [sic] to be twice put in jeopardy.” ’ ” Id. (quoting United States v. Wheeler, 435 U.S. 313, 317 (1978)).
¶ 15 At issue here is section 3-4(c)(1) of the Criminal Code, which addresses the effect of a former prosecution. Section 3-4(c)(1) of the Criminal Code provides that prosecution against the defendant is barred if (1) “defendant was formerly prosecuted in a District Court of the United States *** for an offense that is within the concurrent jurisdiction of this [s]tate,” (2) the former prosecution “resulted in either a conviction or an acquittal,” (3) “the subsequent prosecution is for the same conduct,” and (4) proof of every required fact of one of the prоsecutions must
¶ 16 Here, the parties do not dispute that defendant was “formerly prosecuted” in federal court and that the prosecution resulted in a “conviction” against defendant. The parties, however, disagree that the subsequent state prosecution was for the “same conduct.” Defendant argues that both prosecutions involved the same conduct, as the shooting of Casteel was the offense prosecuted in both the federal and state courts. Defendant further contends that “any argument to the contrary is waived” by the State, as it failed to contest it before the circuit court. The State acknowledges that it had “conceded the fact that both the federal and [s]tate offenses stemmed from the same conduct,” but argues that this court may still entertain its argument on appeal that possession of a firearm was the act at issue in the federal prosecution, whereas shooting of the victim was the separate act at issue in the state prosecution. In support, the State points out that “a reviewing court is not bound by a party‘s concession” and that “an independent analysis on the ‘same conduct’ issue is appropriate under the de novo standard of review.”
¶ 17 Generally, “issues not raised in the trial court are deemed waived and may not be raised for the first time on appeal.” Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996). However, waiver is considered “an admonition to the parties, not a jurisdictional limitation, and therefore it is no impediment to [our] ability to address issues of law.” Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 437, 453 (2007). Therefore, we will review the merits of the State‘s argument on appeal.
¶ 18 The issue on appeal is whether a double jeopardy violation has occurred. In determining whether a violation has occurred, the question before us is whether the prosecutions are based on different criminal acts. People v. Dinelli, 217 Ill. 2d 387, 404 (2005). If the prosecutions are based on different аcts, then the double jeopardy clause is not implicated. Id. If, on the other hand, there was only a single physical act underlying both offenses, we must determine whether one charge is a lesser included offense of the other. Id. (citing People v. Sienkiewicz, 208 Ill. 2d 1, 6 (2003)). Accordingly, we must address whether the attempted murder and aggravated battery charges were based on the same act as that underlying firearm possession charge in federal court.
¶ 19 Our supreme court has applied a six-factor test in determining whether two prosecutions are premised on different physical acts. Id. The six factors are (1) whether defendant‘s acts were separated by an intervening event, (2) whether the acts occurred in the same location, (3) the time between the defendant‘s acts, (4) the victim‘s identity, (5) the similarity of the acts, and (6) the prosecutorial intent, as shown by the charging instrument‘s language. Id. Here, the acts do not appear to be separated by an intervening event. They also occurred in the same location, the Irving Park neighborhood. The record does not indicate that a significant amount of time had lapsed between defendant‘s actual possession of the gun and discharge оf the gun. However, the state charges included an actual injured victim, Casteel, whereas the federal charge did not require a victim—the offense was accomplished by
¶ 20 Lastly, the charging instruments indicate that each charge was based on a different act. For instance, the State‘s indictment charged defendant for committing the offense of “attempt first degree murder” and “aggravated battery.” The indictment stated that defendant “without lawful justification, with intent to kill, did an act, to wit: [s]hot Earl Casteel, which constituted a substantial step towards the commission of first degree murder.” With respect to the aggravated battery charge, the indictment stated that dеfendant “in committing a battery, knowingly discharged a firearm *** and caused any injury to another person, to wit: shot Earl Casteel about the body.” Although the record does not include a copy of the federal charging instrument, a copy of a plea agreement entered by the federal prosecutor, defendant, and defendant‘s counsel stated that “[t]he indictment in [the federal] case charges defendant with possession of a firearm by a convicted felon, in violation of Title 18, United States Code, Section 922(g)(1) (Count One).” The plea agreement reiterated the “factual basis” for the charge and stated that “[a]t the time of the charged offense, Jimenez had previously been convicted of a crime punishable by imprisonment for a term exceeding one year.” Further, “Jimenez acknowledge[d] that the *** pistol he possessed was not manufactured in the State of Illinois, and had therefore previously traveled in interstate commerce.” Thus, these documents show the intent in prosecuting different acts. We find that these factors are sufficient to establish that the two prosecutions were predicated upon separate acts. Therefore, double jeopardy did not bar the subsequent state charges.
¶ 21 Even assuming, arguendo, that both the federal and state prosecution stemmed from the same conduct, we find that each prosecution required proof of a different fact. Defendant argues that the federal firearm possession charge did not require proof of any facts not required in the state charges becausе the federal charge was essentially a lesser-included offense to the state charges. However,
¶ 22 Defendant is essentially making a “elements versus facts” distinction. As previously discussed, section 3-4(c)(1) of the Criminal Code bars a subsequent prosecution for the same conduct if the “proof of every required fact of one of the proseсutions [is] required in the other prosecution.” See Porter, 156 Ill. 2d at 222. In other words, a subsequent prosecution for the same conduct (i.e., same set of facts) would not implicate the double jeopardy clause except where there is no difference in the proof required to sustain both prosecutions. See People v. Barash, 325 Ill. App. 3d 741, 746 (2001) (providing that section 3-4(c) of the Criminal Code “bars prosecution for a subsequent сrime arising out of the defendant‘s same conduct only if the former crime shares the same elements as the subsequent crime“). Here, even accepting defendant‘s contention that there was no difference in the underlying conduct to prove both offenses, there is a difference in elements, or the proof required to sustain each prosecution. For instance, the attempted murder and aggravated battery charges did not require the State to prove that defendant had been convicted of a felony. Stated plainly, a conviction for attempted first degree murder requires proof that a person (1) with intent to kill, (2) takes a substantial step towards committing murder, such as firing a gun. See People v. Scott, 2020 IL App (1st) 180200, ¶ 54;
III. CONCLUSION
¶ 24 For the reasons stated, we affirm the judgment of the circuit court.
¶ 25 Affirmed.