People v. Casas , 2016 IL App (2d) 150456 ( 2016 )

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People v. Casas, 2016 IL App (2d) 150456
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption FERNANDO CASAS, JR., Defendant-Appellee.
District & No. Second District
Docket No. 2-15-0456
Filed April 14, 2016
Decision Under Appeal from the Circuit Court of Du Page County, No. 14-CF-2204;
Review the Hon. Liam C. Brennan, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Appeal Solicitor General, and Michael M. Glick and Eldad Z. Malamuth,
Assistant Attorneys General, of counsel), for the People.
Mark H. Kusatzky, of Northfield, for appellee.
Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justices Hudson and Spence concurred in the judgment and opinion.
OPINION
¶1 The question presented in this case is whether the offense of violation of bail bond is a
continuing offense such that the limitations period on a violation-of-bail-bond prosecution is
tolled until an offender is returned to custody. We hold that it is.
¶2 At some point in 1996 (the record does not indicate precisely when), defendant, Fernando
Casas, Jr., was indicted by the statewide grand jury for the manufacture or delivery of
cocaine in excess of 900 grams, a Class X felony. The case was transferred to Du Page
County under case number 96-CF-1920. On October 16, 1996, the circuit court admitted
defendant to bail in the amount of $750,000; he posted a 10% cash bond of $75,000.
Thereafter, defendant regularly appeared in court for the case. On June 9, 1998, however,
defendant failed to appear in court, and his bond was forfeited. During the next 30 days,
defendant did not surrender himself to authorities, and a bench warrant was issued for his
arrest. Later, defendant was tried in absentia, found guilty, and sentenced to 20 years’
imprisonment.
¶3 On April 5, 2014, roughly 18 years after defendant was first indicted, the police stopped
defendant for a traffic offense in Du Page County. During that stop, defendant gave the
police a false name and a fake ID. In subsequent conversations with the police, defendant
revealed his true identity, admitted that he stopped going to court in the 1996 case, and
acknowledged the warrant for his arrest. Defendant also confessed that because of the arrest
warrant he had used two different false identities, including the one on the fake ID he
purchased in Mexico to avoid apprehension while living in the United States.
¶4 Based on these facts, in December 2014, defendant was indicted for the violation of his
1996 bail bond. The Criminal Code of 2012 sets forth the offense of violation of bail bond as
follows:
“Whoever, having been admitted to bail for appearance before any court of this State,
incurs a forfeiture of the bail and knowingly fails to surrender himself or herself
within 30 days following the date of the forfeiture, commits, if the bail was given in
connection with a charge of [a] felony ***, a felony of the next lower Class ***.” 720
ILCS 5/32-10(a) (West 2014).
The State’s indictment alleged that defendant forfeited his bond by failing to appear in court
on June 9, 1998, and by knowingly failing to surrender himself within 30 days of that date.
The offense was charged as a Class 1 felony because defendant’s underlying cocaine charge
was a Class X felony.
¶5 Defendant moved to dismiss the indictment, arguing that a prosecution for violation of
his bail bond was time-barred. 725 ILCS 5/114-1(a)(2) (West 2014). More specifically,
defendant claimed that, under the general statute of limitations for felonies, the State had
three years to bring the bail-bond charge against him (720 ILCS 5/3-5(b) (West 2014)) or
until July 10, 2001. Defendant noted that more than three years had passed and asserted that
the State did not allege any facts in the charging instrument that would toll or extend the
three-year limitations period. See generally 720 ILCS 5/3-6 (West 2014) (extending
limitations period for certain offenses); 720 ILCS 5/3-7 (West 2014) (excluding certain times
from limitations period); 720 ILCS 5/3-8 (West 2014) (providing that for continuing
offenses, limitations period is tolled and commences when “last such act” was committed).
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¶6 In response, the State filed a superseding information, which provided as follows:
“[O]n or about July 9, 1998, and continuing through and until April 5, 2014,
[defendant] committed the offense of VIOLATION OF BAIL BOND, a Class 1
felony, in that *** defendant, after being admitted to bail on or about October 16,
1996, for appearance in the Circuit Court of DuPage County *** in case 96 CF 1920,
and on or about June 9, 1998, he incurred a forfeiture of his bail and thereafter
knowingly, willfully, and unlawfully failed to surrender himself within 30 days
following the date of the forfeiture of the bail, in violation of [section 32-10(a) of the
Criminal Code (720 ILCS 5/32-10(a) (West 2014))]; and because Violation of Bail
Bond should be considered a continuing offense, the statute of limitations did not start
running until April 5, 2014, when defendant was apprehended and admitted that he
used a false identity to evade prosecution.”
In a footnote in the information, the State asserted that “[t]his Court is bound by People v.
Grogan, 197 Ill. App. 3d 18 (1st Dist. 1990), which held that violation of a bail bond is not a
continuing offense.” (Emphasis in original.) The State then noted that it, with the superseding
information, was “mak[ing] a good[-]faith argument that Grogan was improperly decided
and should be overruled.”
¶7 The State’s use of the phrase “continuing offense” was a reference to section 3-8 of the
Criminal Code, which tolls the three-year limitations period as follows: “When an offense is
based on a series of acts performed at different times, the period of limitation prescribed by
this Article starts at the time when the last such act is committed.” 720 ILCS 5/3-8 (West
2014).
¶8 The trial court granted defendant’s motion to dismiss, finding that pursuant to Grogan
defendant’s prosecution for violation of a bail bond was time-barred. The State timely
appealed.
¶9 On appeal, the State primarily contends that violation of bail bond is a continuing offense
under section 3-8 of the Criminal Code (id.) and that Grogan was wrongly decided. Thus,
according to the State, the limitations period was tolled when the offense was initially
committed and began to run once defendant was taken into custody. Accordingly, since
defendant was charged with the bail-bond offense well within three years from the date of his
arrest, the statute of limitations was not violated. In the alternative, the State argues that its
reference to defendant’s use of a false identification qualifies as an exception to the
limitations period for when a criminal defendant “is not usually and publicly resident within
this State” (720 ILCS 5/3-7(a) (West 2014)). Because we agree with the State on the first
issue, we need not address the second.
¶ 10 Whether violation of bail bond is a continuing offense and whether the superseding
information was properly dismissed present questions of law, which we review de novo.
People v. Macon, 396 Ill. App. 3d 451, 454 (2009). As noted, most felony offenses must be
charged “within 3 years after the commission of the offense.” 720 ILCS 5/3-5 (West 2014).
A crime is “committed” and the limitations period begins to run when the final element of the
offense is completed. See generally People v. Blitstein, 192 Ill. App. 3d 281, 284 (1989)
(citing Toussie v. United States, 397 U.S. 112, 115 (1970)); People v. Mudd, 154 Ill. App. 3d
808, 815 (1987). But, as the Utah Supreme Court has helpfully observed, “[i]n the case of a
continuing offense, while criminal liability attaches when every element is satisfied, the
statute of limitations does not begin to run until the perpetrator ceases to satisfy the elements
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of the crime. At that point, the whole arc of criminal conduct is aggregated into a single
criminal violation.” State v. Taylor, 2015 UT 42, ¶ 12, 349 P.3d 696.
¶ 11 As noted above, in Illinois, the continuing-offense exception is codified in section 3-8 of
the Criminal Code (720 ILCS 5/3-8 (West 2014)). Illinois law holds that the
continuing-offense exception to the statute of limitations applies in certain instances, such as
where the crime is conspiracy (People v. Konkowski, 378 Ill. 616, 621 (1941)),
embezzlement (People v. Adams, 106 Ill. App. 2d 396, 405 (1969)), criminal contempt
(People v. Levinson, 75 Ill. App. 3d 429, 436 (1979)), failure to maintain records concerning
controlled substances (People v. Griffiths, 67 Ill. App. 3d 16, 20 (1978)), or escape from
custody (People v. Miller, 157 Ill. App. 3d 43, 46 (1987)). Since escape and violation of bail
bond are similar offenses, we will begin by discussing Miller.
¶ 12 In Miller, the defendant was convicted of escape and appealed on the basis that she had
been charged with that offense after the limitations period had expired. Id. at 44-45. The First
District Appellate Court (relying principally on the United States Supreme Court’s decision
in United States v. Bailey, 444 U.S. 394 (1980) (construing federal escape statute)), held that
escape was a continuing offense under Illinois law. Miller, 157 Ill. App. 3d at 46.
Specifically, the Miller court determined that “escape encompasses not only the defendant’s
initial departure but [also] his failure to return to custody.” Id. The court noted that an
escaped prisoner “poses a continuing threat to society” and that the consequences of viewing
escape as “an isolated occurrence *** would encourage a convicted felon to remain in hiding
until the three-year statute of limitations had expired.” Id. Accordingly, the court found that
“once the defendant had escaped, she was under a duty to terminate her status as a fugitive by
turning herself over to the authorities.” Id. Thus, “[t]he three-year statute of limitations
applicable to felonies [citation] is tolled during the period an escapee remains at large.” Id.;
see also Bailey, 444 U.S. at 413 (“we think it clear beyond peradventure that escape from ***
custody *** is a continuing offense and that an escapee can be held liable for failure to return
to custody as well as for his initial departure”).
¶ 13 Parenthetically, we note that we recently relied on Miller when holding that, because
escape is a continuing offense, a defendant who was 16 when he escaped, but who was 17
when he was captured and arrested, could be prosecuted in criminal court rather than juvenile
court. People v. Esparza, 2014 IL App (2d) 130149, ¶¶ 14-15.
¶ 14 Now we turn to Grogan, which addressed whether violation of a bail bond is a continuing
offense. There, the defendant was charged with theft and posted bond in July 1981. Grogan,
197 Ill. App. 3d at 19. When he failed to appear in court in December 1981, his bond was
forfeited and an arrest warrant was issued; then, when he failed to surrender within 30 days,
judgment was entered on the bond forfeiture. Id. at 19-20. In 1987, the defendant was
indicted for violation of his bail bond. Id. at 19. He was convicted of that offense and
appealed. Id. at 21.
¶ 15 On appeal, the defendant argued that his trial counsel was ineffective for failing to argue
that his prosecution on the bail-bond charge was barred by the three-year statute of
limitations. Id. The State, relying on Miller, asserted that the offense of violation of bail bond
was similar to the offense of escape. Id. The Grogan court framed the State as arguing the
following: “because the purpose of the violation of bail bond statute is to impose a duty on
defendant to appear in court, each day that defendant fails to surrender must be thought of as
a breach of that duty and that this breach continues until defendant appears in court.” Id.
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However, the Grogan court distinguished Miller, asserting that “[t]he offense of violation of
bail bond, unlike the offense of escape of a convicted felon, is [(1)] not the kind of offense
that poses a continuing threat to society, nor can it [(2)] be defined as a series of related acts
constituting a single [course] of conduct, such as conspiracy or embezzlement.” Id. at 21-22.
¶ 16 We determine that the court in Grogan was wrong on both points. First, we cannot say
that a defendant who violates his or her bail bond categorically does not pose a continuing
threat to the public. In fact, it is precisely because of “the threat posed by persons who
commit crimes while on bond” (People v. Dowthard, 197 Ill. App. 3d 668, 671 (1990)) that
the legislature implemented mandatory consecutive sentencing for any felony committed
while a defendant is on bond. See Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-4(h) (now 730 ILCS
5/5-8-4(d)(9) (West 2014)). To be sure, a defendant’s release on bail does reflect the trial
court’s initial impression that the defendant does “not pose a danger to any person or [to] the
community” (725 ILCS 5/110-2 (West 2014) (listing conditions of bond)); however, it also
reflects the court’s assessment that the defendant will “comply with all conditions of bond”
(id.). Once the defendant refutes this latter prediction, we see absolutely no reason why he
should remain presumptively clothed in the former.
¶ 17 Second, and more importantly, the Grogan court was incorrect because the offense of
violation of bail bond, like the offense of escape, is “a single [course] of conduct” (Grogan,
197 Ill. App. 3d at 21), and that course of conduct continues beyond the initial commission of
the offense. Thus, the Grogan court seemingly misapprehended the nature of the offense of
violation of bail bond, which is in fact the controlling question: whether the nature of the
crime is such that the legislature intended it to be treated as a continuing offense. See
Esparza, 2014 IL App (2d) 130149, ¶ 13 (quoting Miller, 157 Ill. App. 3d at 46, quoting
Bailey, 444 U.S. at 413, quoting Toussie, 397 U.S. at 115).
¶ 18 We determine that the legislature intended that, like escape, violation of bail bond would
be treated as a continuing offense. The nature of the offense is that the offender has secured
bail and fled. Like escape, wherever else the bail-bond offender is, he is not where he is
lawfully supposed to be; he has breached his lawful custody and obstructed justice. Such acts
“pose[ ] a threat to the integrity and authority of the court.” United States v. Gray, 876 F.2d
1411, 1419 (9th Cir. 1989) (holding that “failure of a defendant to appear for sentencing” is a
continuing offense). And the threat to the court’s authority posed by an on-bond fugitive
defendant is just as acute 31 days after his failure to appear as it is, as this case shows, nearly
20 years after he has decided to become a fugitive. In addition, we note that, like escape,
there is no separate crime in Illinois for not turning oneself in after the violation of his bail
bond, so as to distinguish between an initial and a continuing violation. Cf. United States v.
Vowiell, 869 F.2d 1264, 1269 (9th Cir. 1989). All of this convinces us that the General
Assembly intended violation of bail bond to be treated as a continuing offense, because the
offense aggregates the entirety of the defendant’s criminal conduct.
¶ 19 We note that we have also considered the consequences of interpreting these
statutes–sections 3-8 and 32-10(a) of the Criminal Code–one way or another. See People v.
Gutman, 2011 IL 110338, ¶ 12. While all limitations statutes inure to a defendant’s benefit to
some degree, to hold in defendant’s favor in this case and allow Grogan to stand
unchallenged would, in our view, constitute an unwarranted windfall. Such a holding would,
as the court noted in Miller, encourage a defendant “to remain in hiding until the three-year
statute of limitations had expired.” Miller, 157 Ill. App. 3d at 46. Indeed, under that holding,
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a defendant could thwart not only a prosecution for violating the bail bond, but also the
underlying prosecution, which might well have gone cold with evidence that has been
“distorted or diluted by the passage of time.” People v. Macon, 396 Ill. App. 3d 451, 456
(2009). We are singularly disinclined to hamstring both the State and the courts from
punishing defendants to the full extent of their crimes.
¶ 20 In addition, our interpretation best enables the State to justly exercise its prosecutorial
discretion and to treat each violation-of-bail-bond case on its own merits. To hold otherwise
would force the State “to decide whether to pursue prosecution of the [bail-bond offender]
before his return to [the court’s jurisdiction] and before all the facts surrounding the
[bail-bond violation] are known.” State v. Burns, 564 A.2d 593, 596 (Vt. 1989) (holding that
escape is a continuing offense). Accordingly, consistent with the principles of statutory
construction (see, e.g., People v. Williams, 2016 IL 118375, ¶ 15), viewing the crime of
violation of bail bond as a continuing offense strikes us as effectuating the legislature’s intent
and, furthermore, fosters a just result.
¶ 21 Citing Toussie, 397 U.S. 112, defendant contends that violation of a bail bond should not
be considered a continuing offense. In Toussie, the defendant was required to register for the
draft when he turned 18 or within 5 days thereafter. Id. at 113. The defendant failed to do so,
and eight years later the defendant was indicted for failing to register. Id. The defendant
moved to dismiss the indictment, claiming that the five-year limitations period had run. Id. at
113-14. The government, although agreeing that the crime was complete within 5 days after
the defendant turned 18, nevertheless argued that failing to register was a continuing offense
that was committed each day the defendant failed to register. See id. at 114. The United
States Supreme Court disagreed. In doing so, the Court relied on the history of the draft laws,
which viewed the duty to register as a “single, instantaneous act to be performed at a given
time,” and the principle that continuing offenses should not be too readily found. Id. at
116-17.
¶ 22 Here, unlike in Toussie, the history behind posting bail lends support to the conclusion
that violation of a bail bond is a continuing offense. Throughout history, the primary reason
why defendants were required to post bail was to ensure that they would appear in court
whenever ordered to do so. See, e.g., United States v. Ryder, 110 U.S. 729, 736 (1884) (“the
object of bail in criminal cases is to secure the appearance of the principal before the court
for the purposes of public justice”); see also Timothy R. Schnacke et al., Pretrial Justice
Institute, The History of Bail and Pretrial Release (Sept. 24, 2010). That obligation, unlike
the obligation that arises with the draft laws, is not comprised of a “single, instantaneous act
to be performed at a given time.” Toussie, 397 U.S. at 116-17. Rather, as a condition of bail,
a defendant must “[a]ppear to answer the charge [on which bail was posted] in the court
having jurisdiction on a day certain and thereafter as ordered by the court until discharged or
final order of the court.” (Emphases added.) 725 ILCS 5/110-10(a)(1) (West 2014). For this
reason, defendant here, unlike the defendant in Toussie, could not reasonably expect that his
crime of violation of a bail bond was complete 30 days after he failed to appear in court on
the scheduled court date.
¶ 23 We note that courts in both Texas and New York maintain that their respective equivalent
bail-bond offenses are not continuing (State v. Ojiaku, 424 S.W.3d 633, 639 (Tex. App.
2013); People v. Landy, 510 N.Y.S.2d 190, 191 (N.Y. App. Div. 1986)), although New York
courts have not always held this view. See People v. Ingram, 345 N.Y.S.2d 441, 446 (N.Y.
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Crim. Ct. 1973) (finding that bond-jumping defendant “divested himself of the protection of
the statute of limitations by his chosen course of unavailability”). However, we believe that
the better approach is the one taken by those jurisdictions that view this as a continuing
offense (e.g., Gray, 876 F.2d 1411; State v. Francois, 577 N.W.2d 417 (Iowa 1998)), and
particularly by the Nevada Supreme Court, which stated the following:
“Bail is a privileged release from custody. To allow [the defendant] to avoid
prosecution for [the bail-bond violation] simply because he eluded arrest long enough
to surpass the three year statute of limitations is contrary to the purpose of [the
violation-of-bail-bond statute] in particular and bail in general. Therefore, based on
the fact that [the statute] is intended to punish those on bail who violate the conditions
of their bail by failing to appear before the court when commanded, we conclude that
[violation of a bail bond] is a continuing offense ***.” Woolsey v. State, 906 P.2d
723, 726 (Nev. 1995).
We agree and so hold. We cannot, as the State has asked, “overrule” Grogan, since it is a
decision of a court of equal stature; however, that does not prevent us from expressing our
view that the decision in Grogan should no longer be followed. People v. Thomas, 2014 IL
App (2d) 121203, ¶ 48.
¶ 24 Though it is not entirely clear from his appellate brief, defendant also appears to argue
that the State’s superseding information was “fatally defective” in that it referred to violation
of bail bond as a “continuing offense” without specifically citing section 3-8 of the Criminal
Code. To the extent that this is defendant’s argument, we reject it. Our supreme court has
declined to rigidly define what is required for the State to invoke an exception to the statute
of limitations. See People v. Morris, 135 Ill. 2d 540, 547 (1990). The standard for assessing
the sufficiency of a charging instrument–both for the offense and for exceptions to the statute
of limitations–is whether the document “provide[s] notice to the defendant of precisely what
the State will attempt to prove (and therefore to allow the defendant an opportunity to
prepare a defense).” Id. Here, the superseding information provided that “on or about July 9,
1998, and continuing through and until April 5, 2014, [defendant] committed the offense of
VIOLATION OF BAIL BOND.” The information then indicated that “because Violation of
Bail Bond should be considered a continuing offense, the statute of limitations did not start
running until April 5, 2014, when defendant was apprehended.” (Emphasis added.) Despite
the lack of a reference to section 3-8 of the Criminal Code, we determine that the superseding
information sufficiently set forth the circumstances under which the State sought to invoke
the continuing-offense exception to the three-year statute of limitations. Accordingly, the
superseding information was not fatally defective.
¶ 25 For the above-stated reasons, we hold that the State’s superseding information should not
have been dismissed, that violation of bail bond is a continuing offense, and that Grogan
should no longer be followed. We therefore reverse the judgment of the circuit court of
Du Page County and remand this cause for further proceedings.
¶ 26 Reversed and remanded.
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