{ "id": 3074370, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "1981-12-15", "docket_number": "No. 80-517", "first_page": "1056", "last_page": "1063", "citations": [ { "type": "official", "cite": "102 Ill. App. 3d 1056" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "25 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5351323 ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0451-01" ] }, { "cite": "633 F.2d 449", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1298131 ], "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/f2d/633/0449-01" ] }, { "cite": "94 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3125459 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0628-01" ] }, { "cite": "86 Ill. App. 3d 457", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3187846 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0457-01" ] }, { "cite": "83 Ill. App. 3d 133", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5554146 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0133-01" ] }, { "cite": "394 Ill. 177", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2471064 ], "weight": 2, "pin_cites": [ { "page": "179" }, { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/ill/394/0177-01" ] }, { "cite": "81 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3227243 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0481-01" ] }, { "cite": "68 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809874 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/68/0101-01" ] }, { "cite": "84 Ill. 2d 512", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045827 ], "weight": 7, "pin_cites": [ { "page": "524" }, { "page": "520" }, { "page": "514-15" }, { "page": "523" }, { "page": "522" }, { "page": "522" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0512-01" ] }, { "cite": "417 U.S. 21", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519987 ], "weight": 9, "pin_cites": [ { "page": "27" }, { "page": "634" }, { "page": "2102" } ], "opinion_index": 0, "case_paths": [ "/us/417/0021-01" ] }, { "cite": "395 U.S. 711", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772134 ], "weight": 3, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/395/0711-01" ] }, { "cite": "77 Ill. App. 3d 488", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3288972 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0488-01" ] }, { "cite": "92 Ill. App. 3d 852", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5532281 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0852-01" ] }, { "cite": "58 Ill. App. 315", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5083674 ], "opinion_index": 0, "case_paths": [ "/ill-app/58/0315-01" ] }, { "cite": "76 Ill. App. 3d 147", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3279343 ], "weight": 2, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0147-01" ] } ], "analysis": { "cardinality": 819, "char_count": 17256, "ocr_confidence": 0.911, "pagerank": { "raw": 1.1169696745725813e-07, "percentile": 0.5725113703540246 }, "sha256": "52b870a7a087ac0fdcf387842db74e8f51c4799058cef9b62497124165983454", "simhash": "1:13e8a56665f8010f", "word_count": 2842 }, "last_updated": "2023-07-14T17:07:42.734695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nThe defendant was indicted on February 14, 1978, in Kane County, for armed robbery, attempt murder, and aggravated battery. (Ill. Rev. Stat. 1977, ch. 38, pars. 18 \u2014 2, 8 \u2014 4(a) and 12 \u2014 4.) On April 10, 1978, just prior to jury selection, the prosecutor informed the court: \u201cI failed to mention we are proceeding only on Count I [armed robbery].\u201d There was no express consent given by the trial court, nor was there any written order nolle pressing or dismissing the remaining two counts. The defendant was convicted by a jury of armed robbery, and his motion for a new trial was denied. He elected to be sentenced under the old Code, and the trial court sentenced him to a term of 21 years to life. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 \u2014 8\u20141(b)(2).) Defendant immediately filed his notice of appeal in open court. A subsequent order entered 12 days later reduced defendant\u2019s sentence to not less than 21 years nor more than 63 years, and a second notice of appeal from the amended judgment was filed.\nThe defendant had been indicted on the charges following his and an accomplice\u2019s alleged armed robbery of a tavern. During the robbery, defendant allegedly told one of the persons in the bar, a 15-year-old boy, to sit on one of the bar stools which was directly in line with the front door of the tavern. Upon completing the robbery and exiting the tavern, the defendant allegedly turned, faced the closed glass door and fired a shot. The shot struck the 15-year-old boy, resulting in permanent paralysis.\nOn appeal, this court reversed and remanded the cause for a new trial. (People v. Johnson (1979), 76 Ill. App. 3d 147.) The basis for the reversal was that improper evidence of the nature and extent of the boy\u2019s injuries was presented to the jury in view of the fact the defendant was being tried only for the armed robbery offense. Subsequent to this court\u2019s mandate, the defendant was reindicted on January 23, -1980, for attempt murder and aggravated battery. The defendant unsuccessfully moved to quash the indictment. Prior to retrial on May 19, 1980, the prosecutor moved to nolle pros the attempt murder count and the trial court acceded. The jury found the defendant guilty of aggravated battery and armed robbery. Defendant\u2019s motion for a new trial was denied, and he elected to be sentenced under the new Code. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 8\u20141(a)(3).) The court sentenced the defendant to a determinate term of 23 years for armed robbery, and a concurrent five-year term for aggravated battery. The defendant\u2019s notice of appeal was timely filed.\nThree issues are raised on appeal: (1) Whether the reindictment for attempt murder and aggravated battery was vindictive and, therefore, violative of due process; (2) Whether the defendant was denied the effective assistance of counsel; and (3) Whether the sentence imposed after retrial was illegal because it exceeded the sentence originally imposed. It is unnecessary for us to discuss the latter two issues; we reverse and remand on the basis of the first issue.\nWe begin with the premise that the prosecutor\u2019s election to proceed only on the armed robbery charge at the defendant\u2019s first trial effectively nolle prossed the counts for attempt murder and armed robbery. (Sloncen v. People (1895), 58 Ill. App. 315.) Although it is now usual procedure for the State to seek the trial court\u2019s approval before entering a nolle pros (People v. Mooar (1981), 92 Ill. App. 3d 852; People v. Maher (1979), 77 Ill. App. 3d 488), we see no reason why the trial court would not have given its approval if it had been sought, nor did the defendant object to the entry of the nolle prosequis.\nDefendant argues the prosecutor acted vindictively in reindicting him for aggravated battery and attempt murder. This court\u2019s opinion reversing the defendant\u2019s conviction for armed robbery explicitly stated reversal would not have been warranted if proof of the armed robbery had halted with the fact of the shooting through the door. Additionally, the court rejected the State\u2019s harmless error argument in view of the fact the defendant\u2019s identity and purported use of the shotgun was established solely by his accomplice\u2019s testimony and statements to others. The court found the evidence of the shooting victim\u2019s injuries and current condition of paralysis even more prejudicial in view of the fact the defendant was not on trial for attempt murder or aggravated battery.\nThe defendant relies on North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, and Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098, for the proposition that he was entitled to pursue his right to appeal free from the potentiality of increased sanction severity upon reversal and/or retrial. Defendant states that the standard on review in such cases is whether there exists a \u201crealistic likelihood of vindictiveness\u201d as the basis for the augmented charges. (People v. Walker (1981), 84 Ill. 2d 512, 524.) Although Walker involved a prosecutor\u2019s decision to seek a greatly enhanced penalty after the defendant successfully had his guilty plea withdrawn, the court there held that the reasoning of those cases has correctly been applied whenever a defendant has chosen to exercise any procedural right. 84 Ill. 2d 512, 520.\nInter alia, the plea bargain in Walker provided the defendant would receive a 60-year sentence. Upon accepting the defendant\u2019s negotiated plea in that case, however, the court inaccurately admonished the defendant that \u201c \u2018[t]he range of sentencing could be 40 to 80 years,\u2019 whereas the indictment\u2019s terms, alleging murder and armed robbery, justified a death sentence hearing.\u201d (84 Ill. 2d 512,514-15.) Since the State\u2019s Attorney took a leading role in those proceedings, and did not challenge the court\u2019s admonitions on the murder count, the Walker court found the State\u2019s Attorney had unmistakably adopted the position that 80 years was the maximum penalty and had, in effect, \u201cnotified defendant that death was not a possible penalty for his crimes.\u201d (84 Ill. 2d 512, 523.) Defendant subsequently successfully withdrew the negotiated guilty plea and later entered an unnegotiated guilty plea which resulted in the State seeking, and obtaining, a sentence of death.\nThe Walker court recognized that the prosecutor has a constitutionally legitimate interest in \u201cpersuading\u201d a defendant to forego his right to plead guilty, and that a defendant who chooses to risk an increased sanction rather than plead guilty shall be held to that choice. However, the court also acknowledged that the legitimacy of the latter principle \u201cdepends upon a defendant\u2019s knowing, voluntary, and intelligent evaluation of the risks involved.\u201d (84 Ill. 2d 512, 522.) The court found that the prosecutor\u2019s escalation of the possible sanction severity without notice and for no valid reason after the defendant chose to exercise his procedural right to challenge a guilty plea which was not entered knowingly, voluntarily and intelligently, triggered the vindictiveness principles enunciated in Pearce and Blackledge. For its purposes, the court treated the possibility of a death sentence, if not revealed to a defendant, as an \u201c \u2018additional and more serious charge,\u2019 \u201d given the qualitative difference between death and other penalties. 84 Ill. 2d 512, 522.\nThe court found the prosecutor\u2019s change of mind in the absence of any alteration of the facts \u2014 save the defendant\u2019s invocation of a right the law plainly allows \u2014 created the appearance of vindictiveness. Further, given the prosecutor\u2019s stake in discouraging defendants from challenging their guilty pleas and the availability of the means to discourage such challenges (i.e., discretion to seek the death penalty in this instance), the court found that a realistic likelihood of vindictiveness existed as well. Thus, the court concluded the prosecutor was required to point out objective facts which justified his change of mind, as well as being required to put the defendant on notice prior to withdrawal of his plea as to what he will face. The court ultimately found there were no objective facts which would have allowed a change of mind or which had put the defendant on notice as to what he would face.\nFor purposes of our analysis, we view the defendant\u2019s reindictment for attempt murder and aggravated battery following his assertion of a procedural right the law plainly allows as having subjected him to \u201cincrease sanction severity.\u201d Certainly there was the possibility of consecutive sentences (Ill. Rev. Stat. 1979, eh. 38, par. 1005 \u2014 8\u20144(a)), and, in fact, the State did request that consecutive maximum sentences be imposed. Additionally, the collateral consequences flowing from conviction of two felonies rather than one should not be disregarded. (See generally Blackledge v. Perry (1974), 417 U.S. 21, 28 n.6, 40 L. Ed. 2d 628, 635 n.6, 94 S. Ct. 2098, 2103 n.6.) Paralleling the court\u2019s reasoning in Walker, we note that the only apparent alteration of the facts between the time the State elected at the first trial \u201cto proceed only on Count I\u201d and its reindictment for attempt murder and aggravated battery, was the intervening factor of the defendant\u2019s successful assertion of a procedural right, his direct appeal. This suggests the appearance of vindictiveness. The State argues it was coincidental that the reindictments occurred after defendant secured a new trial. However, no reason was advanced for the almost two-year delay in not proceeding on these charges. Nor is any reason evident why the charges were nolle prossed just before trial. Although the State\u2019s \u00e9vidence may not have established the intent required to sustain an attempt murder conviction, we have been apprised of no evidence subsequently discovered which would have made conviction for aggravated battery more probable at the second trial than at the first.\nAgain paralleling the reasoning in Walker, we find the circumstances of this case present a realistic likelihood of vindictiveness, as well. The State has a stake in the swift and sure conviction and punishment of those who violate the law. Analogous to the Blackledge prosecutor\u2019s \u201cconsiderable stake\u201d in deterring a defendant from appealing to a trial de novo, the State here also had an interest in not having to present its case a second time. (Blackledge v. Perry (1974), 417 U.S. 21, 27, 40 L. Ed. 2d 628, 634, 94 S. Ct. 2098, 2102.) Its discretionary prosecutorial power, when aimed with a bead on those who seek redress, is a formidible retaliatory weapon. Unjustified reindictment of a successful appellant for greater or additional offenses arising out of the same factual situation as the challenged conviction creates an enormous potential for discouraging those who legitimately are entitled to seek review.\nWe do not disagree with the State that it is well settled that nolle prossed charges ordinarily may be reinstated after successful withdrawal of a guilty plea. (People v. McCutcheon (1977), 68 Ill. 2d 101; People v. Curvin (1980), 81 Ill. App. 3d 481), or that the effect of a nolle prosequi is to put the matter in the same condition as before the prosecution. (People v. Watson (1946), 394 Ill. 177, 179.) However, as indicated, McCutcheon and Curvin both involved charges nolle prossed in consideration for the defendant\u2019s guilty plea. Further, under Supreme Court Rule 605, defendants must be notified that upon withdrawal of a guilty plea, charges dismissed as part of a plea agreement will be reinstated if the State so requests. (Ill. Rev. Stat. 1979, ch. 110A, par. 605(b)(4).) There is no parallel admonition for defendants who have not bargained, and who have borne the burden of re-securing for themselves that which was theirs in the first place: the right to have a fair trial. Although not dispositive of our consideration of the vindictiveness issue, Watson and several recent cases suggest that reindictment on charges unilaterally nolle prossed by the State must be reinstated within term time or be subject to discharge on speedy trial grounds. See generally People v. Watson (1946), 394 Ill. 177, 182; People v. Newell (1980), 83 Ill. App. 3d 133; People v. Sanders (1980), 86 Ill. App. 3d 457; People v. Leannah (1981), 94 Ill. App. 3d 628.\nThat aside, when there is a realistic likelihood of vindictiveness, the State bears the burden of pointing to objective on-the-record facts which justify a change of mind. (People v. Walker (1981), 84 Ill. 2d 512, 524; United States v. Andrews (6th Cir. 1980), 633 F.2d 449, 456.) The following excerpts from the record reveal the essence of the prosecutor\u2019s two-point argument against the defendant\u2019s motion to quash the reindictment for attempt murder and aggravated battery:\n\u201cNow, the purpose of jeopardy is to keep the prosecutor or the State from constantly trying a man on different \u2014 on the same fact situation but on different crimes that might arise out of it. In this situation essentially what happened is we tried him on Armed Robbery. We did so improperly. The case went up to the Appellate Court and the Appellate Court reversed.\nIt went up on the Defendant\u2019s motion for a new trial. That Motion was granted due to the prejudicial error committed by the prosecutor, so it was sent back.\nNow, it\u2019s my opinion, Judge, when a Court does that based on the Defendant\u2019s own motion, that essentially you\u2019re starting back down in the trial level at step one. You\u2019re not starting down right before the case goes into the jury or the instructions are read, but rather before the jury is ever impaneled. You\u2019re starting out anew. The defendant is starting out from step one.\n# e\nThe key point here, Judge, is the Court recognizes when a case is reversed and ordered retried, you\u2019re starting out from step one again before anything happened. Necessarily then the Defendant is bound by his own actions by taking the case up and asking for a retrial. There has been no decision. Essentially, the Court is saying nothing happened down here. You\u2019re starting out afresh and anew. And I think the State, therefore, is properly allowed to re-indict this man.\n# # O\n# * #So that for the two reasons I don\u2019t think jeopardy attached because a juror was not impaneled. And two, even if it did attach, I think because of the motion for a new trial was granted we\u2019re starting fresh again.\nTherefore, it\u2019s proper to reindict him on these two charges and certainly proper to present evidence. I disagree with Counsel\u2019s arguments that we\u2019re taking undue advantage of him in denying his due process. Certainly the case went up to the Appellate Court on his own motion and obviously rightfully so. They sent it back because they did so and in effect gave him what he wanted, a new trial.\nCertainly the State is not taking any undue advantage of him by putting him on trial and taking advantage of all the crimes that he could have committed and the proofs are permissible on. Therefore, I\u2019d ask that you deny his motion.\u201d\nWe find these arguments insufficient to justify the defendant\u2019s reindictment. Reindictment after nolle pros is, of course, permissible as the State argued. However, reindictment after nolle pros after assertion of a procedural right is limited by virtue of the vindictiveness analysis. Here, the State was cognizant of all of the facts of the offenses from the beginning. It elected to proceed only on the armed robbery Class 1 felony and unconditionally effected a nolle pros of the other two charges. In the absence of any other justification, the prosecutor\u2019s statement that \u201cthe defendant is barred by his own actions by taking the case up and asking for a retrial\u201d exhibits a realistic likelihood of vindictiveness. We conclude the defendant\u2019s conviction and sentence for aggravated battery must be vacated.\nAlthough the State argues the armed robbery conviction should be affirmed even if the aggravated battery conviction is not, we find little difference in the prejudicial effect of the improper evidence presented at the first trial when the aggravated battery charge was not before the jury and its presentation at the second trial when the aggravated battery charge should not have been before the jury. The second jury was similarly improperly advised of the victim\u2019s current paralysis by his testimony and by virtue of the blatant positioning of the victim\u2019s wheelchair during his testimony. (People v. Johnson (1979), 76 Ill. App. 3d 147, 152; People v. Nickolopoulos (1962), 25 Ill. 2d 451.) Accordingly, the judgment of the circuit court of Kane County is reversed and remanded for a new trial on the armed robbery offense.\nAggravated battery conviction and sentence vacated; armed robbery conviction reversed and remanded for a new trial.\nSEIDENFELD, P. J., and REINHARD, J., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "Mary Robinson and David Morris, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Robert Morrow, State\u2019s Attorney, of Geneva (Phyllis J. Perko, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant.\nSecond District\nNo. 80-517\nOpinion filed December 15, 1981.\nMary Robinson and David Morris, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nRobert Morrow, State\u2019s Attorney, of Geneva (Phyllis J. Perko, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "1056-01", "first_page_order": 1078, "last_page_order": 1085 }