Illinois Official Reports

Appellate Court

People v. Ventsias, 2014 IL App (3d) 130275

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

PETER A. VENTSIAS, Defendant-Appellant.

District & No. Third District

Docket No. 3-13-0275

Filed July 1, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

In a prosecution for predatory criminal sexual assault and aggravated

criminal sexual abuse where defendant was initially found guilty of 

predatory assault and not guilty of sexual abuse, then his predatory 

assault conviction was reversed on appeal, and then, prior to a second

trial, the trial court was informed defendant would plead guilty to the 

sexual abuse charge after consenting to the reinstatement of that 

charge and the predatory assault charge would be nol-prossed, and 

then, following a plea hearing according to the new agreement, an 

off-the-record conservation occurred as to the trial court’s concerns 

about whether defendant could plead guilty to an offense of which he 

had been acquitted, the trial court vacated the plea, reinstated the 

predatory assault charge and then conducted a jury trial at which 

defendant was convicted, the appellate court upheld the conviction for 

predatory criminal sexual assault over defendant’s contention that the 

predatory criminal sexual assault conviction violated the double 

jeopardy clause, since jeopardy did not attach to the predatory assault 

charge at the plea hearing because defendant did not plead guilty to 

that charge, even if jeopardy attached, the plea hearing was properly 

terminated by the trial court based on the discovery that defendant 

could not validly plead guilty to a charge of which he had been 

acquitted, and the predatory assault charge was properly reinstated.

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 06-CF-652; the 

Hon. Richard C. Schoenstedt, Judge, presiding.
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Judgment Affirmed.

Counsel on

Appeal

Jeffery J. Tomczak (argued), of Law Office of Jeff Tomczak, of Joliet, 

for appellant.

James Glasgow, State’s Attorney, of Joliet (Colleen M. Griffin 

(argued), Assistant State’s Attorney, of counsel), for the People.

Panel JUSTICE CARTER delivered the judgment of the court, with opinion.

Presiding Justice Lytton and Justice McDade concurred in the 

judgment and opinion.

OPINION

¶ 1 After a jury trial, defendant, Peter A. Ventsias, was convicted of predatory criminal sexual 

assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)). Prior to sentencing, he filed a 

motion to dismiss the charge, alleging a double jeopardy violation. The trial court denied the 

motion, and defendant filed an interlocutory appeal to challenge that ruling. We affirm the trial 

court’s judgment.

¶ 2 FACTS

¶ 3 In March 2006, defendant was arrested and charged with one count of predatory criminal 

sexual assault of a child (the predatory charge), a Class X felony, and one count of aggravated 

criminal sexual abuse (the abuse charge), a Class 2 felony (720 ILCS 5/12-16(c)(1)(i) (West 

2006)), for allegedly sexually molesting eight-year-old G.L. A jury trial was held in December 

2007 and defendant was found guilty of the predatory charge and not guilty of the abuse 

charge. Defendant was subsequently sentenced to 11 years’ imprisonment. Defendant 

appealed, and this court reversed defendant’s conviction on the predatory charge because of an 

issue of juror bias and remanded the case for a new trial on that charge. People v. Ventsias, No. 

3-08-0209 (2009) (unpublished order under Supreme Court Rule 23).

¶ 4 In January 2012, while the case was on remand and prior to a second trial, the State and the 

defense informed the trial court at a pretrial hearing that they had entered into a plea agreement 

wherein defendant would plead guilty to the abuse charge of which he had previously been 

acquitted and the State would nol-pros the predatory charge.1 As part of the parties’ plea 

agreement, a sentencing hearing would be scheduled and it was anticipated that the parties 

would reach an agreement as to the sentence, as well. In taking defendant’s plea of guilty, the 

trial court thoroughly admonished defendant. Defendant was given all of the admonishments 

 

1A motion by the State to nol-pros a particular criminal charge or case is comparable to a motion to 

dismiss. See People v. Daniels, 187 Ill. 2d 301, 312 (1999); People v. Watson, 394 Ill. 177, 179-80 

(1946). It is a formal declaration by the prosecuting attorney that he is unwilling to prosecute the 

particular charge or case in question. Id.
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provided for in Illinois Supreme Court Rule 402 (eff. July 1, 1997). In addition, based upon the 

unique circumstances of the plea, defendant was thoroughly admonished that double jeopardy 

barred reprosecution of defendant on the abuse charge because of the prior acquittal and that 

the only way that the State could reinstate the charge was if defendant consented to the State 

doing so. Defendant acknowledged that he understood all of the admonishments and that he 

was consenting to the State reinstating the abuse charge. After the admonishments had 

concluded, the trial court accepted defendant’s plea of guilty on the abuse charge and the 

predatory charge was nol-prossed pursuant to the plea agreement.2The case was scheduled for 

a sentencing hearing to take place a few months later.

¶ 5 At some point shortly thereafter, in a conversation that took place off the record, the trial 

court mentioned to the attorneys involved that it had concerns over whether defendant could 

properly plead guilty to a charge of which he had previously been acquitted. About a week 

after the plea hearing, the State filed a motion to update the charges. In the motion, the State 

alleged that at the time of the plea, the parties intended for defendant to plead guilty to a Class 

2 felony aggravated criminal sexual abuse charge and that they mistakenly believed that the 

prior abuse charge could be reinstated. The State asked the trial court to vacate the plea and to 

“allow a proper plea be entered instanter to the desired class 2 felony keeping the same 

sentencing date in the future.” When the motion came up for hearing, defense counsel 

informed the trial court that defendant no longer wanted to enter a plea of guilty, that defendant 

wanted a trial, and that the parties were asking by agreement to vacate the prior minutes and the 

previous plea of guilty. Without providing defendant with any type of admonishments, the trial 

court vacated the prior plea and reinstated the prior predatory charge.3The trial court indicated 

on the record that the predatory charge was being reinstated on the motion of the defense and 

asked defense counsel if he had any objection to that. Defense counsel responded that he did 

not. The trial court inquired of defense counsel if defendant understood what was going on, and 

defense counsel responded affirmatively.

¶ 6 A second jury trial took place on the predatory charge in July and August 2012 at 

conclusion of which defendant was again found guilty. Prior to sentencing, defendant hired a 

new attorney. The new attorney filed a motion to dismiss the predatory charge based upon a 

double jeopardy violation.4The trial court denied the motion after a hearing. As provided for 

in Illinois Supreme Court Rule 604(f) (eff. Feb. 6, 2013), defendant filed the instant 

interlocutory appeal to challenge the trial court’s ruling.

 

2The trial court record does not clearly indicate whether the nolle prosequi was actually entered 

before or after the plea was accepted. There is no mention of the nolle prosequi being entered in the 

transcript of the proceeding, although it was mentioned by the prosecutor as one of the terms of the plea 

agreement when the trial court was informed of the plea. The trial court docket sheet lists the entry of 

the guilty plea first, the nolle prosequi second, and the entry of a judgment of conviction third. There is 

no dispute, however, that both the acceptance of the plea and the nolle prosequi took place at the same 

plea hearing.

3At times during the hearing, the trial court indicated that it was vacating the prior plea on its own 

motion.

4Despite the statutory requirement (see 725 ILCS 5/114-1(a), (b) (West 2012)), defendant did not 

file his motion to dismiss the charge prior to the second trial. No issue has been raised, however, as to 

whether the motion to dismiss was timely filed.
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¶ 7 ANALYSIS

¶ 8 Defendant argues on appeal that the trial court erred in denying his motion to dismiss the 

predatory charge based upon a violation of double jeopardy. Defendant asserts that jeopardy 

attached to the predatory charge at the plea hearing because the nolle prosequi of that charge 

was not entered until after defendant’s plea of guilty on the reinstated abuse charge had been 

accepted. Thus, defendant contends that the nolle prosequi had the same effect as an acquittal 

and that he could not be prosecuted further on the predatory charge. As part of that assertion, 

defendant claims that his waiver of his double jeopardy rights on the abuse charge was valid 

under the law and was supported by public policy and that his plea of guilty to that charge 

should not have been vacated by the trial court. In the alternative, defendant asserts that even if 

his plea to the abuse charge was invalid, reinstatement of the predatory charge and retrial of 

defendant on that charge were barred under the circumstances of this case because defendant 

was never admonished when the guilty plea was vacated that the predatory charge would be 

reinstated. For all of the reasons set forth, defendant asks that we reverse the trial court’s denial 

of his motion to dismiss the predatory charge, that we vacate the finding of guilty on the 

predatory charge, that we reinstate defendant’s plea of guilty to the abuse charge, and that we 

remand the case with directions to the trial court to sentence defendant on the abuse charge.

¶ 9 The State argues that the trial court’s ruling was proper and should be upheld. The State 

asserts that jeopardy did not attach to the predatory charge at the time of the plea hearing 

because defendant did not enter a plea of guilty to that charge. Thus, the State contends that it 

was not barred from prosecuting defendant further on the predatory charge. The State also 

asserts that because defendant’s plea to the reinstated abuse charge was invalid, the trial court 

was required to vacate the plea and to reinstate the predatory charge, which had been 

nol-prossed pursuant to the plea agreement. In support of that assertion, the State contends that 

a defendant who has been acquitted of a charge after a trial cannot validly waive his double 

jeopardy rights as to that charge to allow the charge to be reinstated, even if the defendant does 

so as part of a counseled guilty plea in which a higher level of offense is being dismissed. As 

for defendant’s claim regarding admonishments, the State asserts that the admonishments cited 

by defendant were not required in this case because the vacation of the plea was not being done 

on defendant’s motion but, rather, on motion of the State. The State disputes defendant’s 

public policy assertion and contends that public policy would not allow a person to plead guilty 

to a charge of which he had previously been acquitted. For all the reasons cited, the State asks 

that we affirm the trial court’s denial of defendant’s motion to dismiss the predatory charge on 

double jeopardy grounds.

¶ 10 In general, a trial court’s ruling on a motion to dismiss a 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 facts nor the credibility of the 

witnesses is at issue in the appellate court’s review of the trial court’s ruling on the motion, 

such as in the present case, the question becomes one of law and the standard of review on 

appeal is de novo. See id.

¶ 11 “The double jeopardy clause of the fifth amendment to the United States Constitution, 

made applicable to the states through the fourteenth amendment, provides that no person shall 

‘be subject for the same offence to be twice put in jeopardy of life or limb.’ U.S. Const., 

amends. V, XIV.” People v. Bellmyer, 199 Ill. 2d 529, 536-37 (2002). Similar protection is 
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provided by the Illinois Constitution (Ill. Const. 1970, art. I, § 10) and by Illinois statute (720 

ILCS 5/3-4(a) (West 2012)). Bellmyer, 199 Ill. 2d at 537. The prohibition against double 

jeopardy stems from an intent to promote fairness and finality in legal proceedings. Daniels, 

187 Ill. 2d at 309. “The cornerstone of the double jeopardy clause is ‘that the State with all its 

resources and power should not be allowed to make repeated attempts to convict an individual 

for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and 

compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the 

possibility that even though innocent he may be found guilty.’ ” People v. Williams, 188 Ill. 2d 

293, 307 (1999) (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)). The protection 

provided by the double jeopardy clause has been put into effect through rules that specify when 

jeopardy attaches and that prohibit a subsequent prosecution in certain situations that would 

violate the double jeopardy clause. See People v. Knaff, 196 Ill. 2d 460, 468 (2001). The rules 

with regard to double jeopardy, however, should not be applied in a mechanical nature, 

especially if the situation is such that the interests the rules seek to protect are not endangered 

and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

See id. at 468-69.

¶ 12 The double jeopardy clause protects 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). Only the first protection is involved in the instant case. To determine whether 

a retrial or other subsequent proceeding would violate a defendant’s double jeopardy rights, a 

reviewing court must decide whether the defendant was placed in jeopardy during the first 

proceeding and, if so, whether the defendant can nevertheless be subjected to a retrial or other 

subsequent proceeding. See Bellmyer, 199 Ill. 2d at 537. The first step in that analysis is to 

determine the point in the initial proceeding when jeopardy attached. Id. at 538. The law in that 

regard is well established. In a jury trial, jeopardy attaches when the jury is impaneled and 

sworn; in a bench trial, jeopardy attaches when the first witness is sworn and the court begins 

to hear evidence; and in a guilty plea proceeding, jeopardy attaches when the guilty plea is 

accepted by the trial court but only attaches to those offenses to which the defendant pleads 

guilty. Watson, 394 Ill. at 180-83; People v. McCutcheon, 68 Ill. 2d 101, 106-08 (1977); 

Daniels, 187 Ill. 2d at 310-13; People v. Cabrera, 402 Ill. App. 3d 440, 447-48 (2010). As for 

a motion by the State to nol-pros a charge, if the motion is allowed and entered before jeopardy 

has attached to the charge, the nolle prosequi does not operate as an acquittal, and a subsequent 

prosecution for the same offense can legally proceed. Id. If, on the other hand, a motion to 

nol-pros is allowed and entered after jeopardy has attached to the charge, the nolle prosequi

has the same effect as an acquittal, and the State may not pursue that charge in a subsequent 

proceeding. Id.

¶ 13 Regardless of the context, the protection against double jeopardy only applies if there has 

been some event that terminates the original jeopardy. See Cabrera, 402 Ill. App. 3d at 449.

Under the concept of continuing jeopardy, reprosecution is not barred by the double jeopardy 

clause in certain circumstances where the criminal proceeding against a defendant has not run 

its full course. Id. For example, double jeopardy does not prevent a retrial when a defendant’s 

conviction is reversed on appeal, unless the reversal is because of insufficient evidence; nor 

does double jeopardy prohibit a retrial when the initial trial was ended as the result of a 

properly declared mistrial. Id. By the same token, double jeopardy does not bar subsequent 
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prosecution of a charge to which a defendant’s plea of guilty was accepted, if the plea 

proceeding is later terminated for a proper reason, such as if the plea is properly vacated. See 

id. However, if a plea proceeding is terminated improperly after jeopardy has already attached, 

a subsequent prosecution on the charge to which defendant originally pled guilty will be 

prohibited by the double jeopardy clause, the same as if a jury or bench trial was terminated 

improperly. Id.

¶ 14 In the instant case, after having reviewed the law in this area and the unique facts involved, 

we find that the trial court properly denied defendant’s motion to dismiss the predatory charge 

on double jeopardy grounds. Simply put, jeopardy did not attach to the predatory charge at the 

time of the plea hearing because defendant did not enter a plea of guilty to that charge. See 

Watson, 394 Ill. at 180-83; McCutcheon, 68 Ill. 2d at 106-08; Daniels, 187 Ill. 2d at 310-13; 

Cabrera, 402 Ill. App. 3d at 447-48. Rather, the charge was nol-prossed on motion of the State 

during the same hearing as part of the plea agreement. Although there have been some unclear 

statements in the law on this point, we believe that the precedent of our supreme court is fairly 

well settled that jeopardy would not have attached to the predatory charge at the time of the 

plea hearing under the circumstances of the present case. See id. We, therefore, reject 

defendant’s argument on this issue.

¶ 15 In reaching that conclusion, we note that even if jeopardy had attached to the predatory 

charge at the plea hearing, we still would have to find that the subsequent prosecution on that 

charge did not violate defendant’s double jeopardy rights because the plea proceeding was 

properly terminated by the trial court when the trial court and the parties realized that 

defendant could not enter a valid plea of guilty on a charge of which he had already been 

acquitted. See Cabrera, 402 Ill. App. 3d at 447-49; People v. Caban, 318 Ill. App. 3d 1082, 

1089-90 (2001) (double jeopardy did not bar a subsequent trial where defendant’s plea of 

guilty to the charge in question was vacated on the State’s motion because the agreed sentence 

did not comply with the statutory guidelines). Defendant’s assertion to the contrary is based 

upon the faulty premise that at the plea hearing, he made a valid waiver of his double jeopardy 

rights as to the abuse charge, even though he had previously been acquitted of that charge after 

a jury trial. Although double jeopardy rights may be waived in some circumstances, they may 

not be waived under the circumstances of the present case in which the State is constitutionally 

prohibited from prosecuting defendant or from haling defendant into court on the charge in 

question. See Blackledge v. Perry, 417 U.S. 21, 29-31 (1974) (in a case involving a due process 

claim that was similar to a claim of double jeopardy, the United States Supreme Court held that 

defendant did not waive his due process claim by pleading guilty to a felony charge, which was 

brought in response to defendant’s appeal of his conviction on a similar misdemeanor charge 

involving the same incident, because the defendant’s right in that particular instance was the 

right not to be haled into court at all on the felony charge and the very initiation of further 

proceedings against the defendant violated due process of law); Menna v. New York, 423 U.S. 

61, 62-63 (1975) (in a case in which the defendant was charged with, and pled guilty to, a 

criminal offense for refusing to testify before a grand jury after he had already been found in 

contempt and had already served a 30-day jail sentence for the same incident, the United States 

Supreme Court reversed the state appellate court’s ruling that the defendant had waived his 

double jeopardy rights by pleading guilty to the criminal charge and remanded the case to the 

appellate court for a determination as to the merits of the defendant’s double jeopardy claim, 

stating that “[w]here the State is precluded by the United States Constitution from haling a 
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defendant into court on a charge, federal law requires that a conviction on that charge be set 

aside even if the conviction was entered pursuant to a counseled plea of guilty”); United States

v. Broce, 488 U.S. 563, 574-76 (1989) (in a case in which a defendant who pled guilty to two 

conspiracies later sought to have the sentences set aside, alleging that there was only a single 

conspiracy, the United States Supreme Court noted that although double jeopardy claims in a 

criminal case were generally waived when a defendant pled guilty, there was an exception to 

that rule that applied in situations where the State could not hale the defendant into court or 

constitutionally prosecute the defendant on the charge in question). Thus, the waiver of 

defendant’s double jeopardy rights in the present case was invalid and the trial court properly 

vacated defendant’s guilty plea on the State’s motion and properly reinstated the predatory 

charge. See id.

¶ 16 We recognize the practical application of defendant’s public policy argument–that a 

defendant should be allowed to waive his double jeopardy protection as part of a plea 

agreement if it is in his benefit to do so, as long as the waiver is knowingly and voluntarily 

made. However, we cannot ignore the strong indication in the decisions of the United States 

Supreme Court that in this particular situation–where a defendant has been previously 

acquitted of a charge–the protection against double jeopardy is so fundamental to the integrity 

of our justice system that it cannot be waived by a defendant, even as the result of a counseled 

guilty plea. See id; Martinez v. Illinois, 572 U.S. ___, ___, 134 S. Ct. 2070, 2077 (2014) (in a 

case in which the State respectfully refused to participate in defendant’s jury trial after its 

motion to continue the trial was denied, the United States Supreme Court held that the State 

could not appeal the grant of a directed verdict of not guilty for defendant and stated that “the 

State knew, or should have known, that an acquittal forever bars the retrial of the defendant 

when it occurs after jeopardy has attached”). In line with that same precedent, we also do not 

believe that the State has the ability to reinstate the charge under the circumstances of the 

present case. See Blackledge, 417 U.S. at 29-31; Menna, 423 U.S. at 62-63; Broce, 488 U.S. at 

574-76.

¶ 17 As for defendant’s assertion in the alternative–that the vacation of the plea and the 

subsequent trial on the predatory charge were improper because defendant was not 

admonished at the time the plea was vacated that the predatory charge would be reinstated–we 

find that assertion to be misplaced. The admonishments to which defendant refers apply in a 

situation where a plea is vacated on defendant’s own motion. See Ill. S. Ct. R. 605(b) (eff. 

Oct. 1, 2001). That rule has no application under the facts of the present case, where the plea 

was vacated on the motion of State or on the motion of the trial court itself. Regardless of any 

admonishments or whether defendant agreed, the plea in the instant case was going to be 

vacated by the trial court because the plea was constitutionally impermissible. See Blackledge, 

417 U.S. at 29-31; Menna, 423 U.S. at 62-63; Broce, 488 U.S. at 574-76.

¶ 18 CONCLUSION

¶ 19 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 20 Affirmed.