People v. Frazier, 2017 IL App (5th) 140493 (July). Episode 399 (Duration 6:44)

No error here where defense counsel waited to object to an insufficient complaint until after the trial started.

Charge

After a bench trial in the circuit court of Marion County, defendant, Robin Frazier, was convicted of criminal sexual assault based upon a position of trust, supervision, or authority (720 ILCS 5/11-1.20(a)(4) (West 2010)) and sentenced to four years in the Department of Corrections.

Facts

Defendant was employed as a counselor by Kemmerer Village, a residential treatment facility for emotionally and behaviorally disturbed children ages 12 to 18.

A little after 10 p.m., defendant clocked out for the night after doing a final bed check of the female residents assigned to her cottage. As defendant was leaving her parking spot, one of the female residents, B.H., age 17, opened the passenger door and got in defendant’s car. Defendant was aware of B.H.’s history of running away from not only Kemmerer Village but also previous group homes where she resided.

They ended up in a hotel room where they drank, did pot, and Defendant performed oral sex on the victim.

Motion To Dismiss

After B.H. answered four questions, defense counsel asked to approach the bench, where he filed a motion to dismiss on the basis that the information “fails to adequately define the nature of the position of trust, authority, or supervision held by [defendant].”

Defendant relied on the Third District case of People v. Sparks, 221 Ill. App. 3d 546 (1991), which holds that the charging document, alleging the offense, must set out the nature of the alleged position of trust, authority, or supervision.

Defense counsel said he was not in a position to file the motion to dismiss before trial as jeopardy would not have attached.

If he filed the motion before trial, then the State would have been allowed to amend the information. Under such circumstances, defense counsel asserted he would have been guilty of ineffective assistance of counsel.

Issue

Defendant still claimed counsel was ineffective for not filing the motion to dismiss before trial.

Defendant insists trial counsel erred by waiting to challenge the sufficiency of the charge until the trial started, thereby subjecting her to a higher standard of review.

Proper Charge

A defendant has a fundamental right, as set forth in section 111-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3), to be informed of the nature and cause of the criminal accusations made against him or her.

When Challenge Made

It is well settled that if an indictment or information is challenged before trial in a pretrial motion, the charging instrument must strictly comply with the pleading requirements of section 111-3 of the Code.

If the indictment or information does not strictly comply with the pleading requirements of section 111-3 of the Code, the proper remedy is dismissal.

If, on the other hand, a charging instrument is attacked mid-trial, the applicable standard for a challenge is the prejudice standard.

Analysis

In the instant case, even assuming arguendo that the information was technically deficient and defense counsel raised the issue in a pretrial motion, the trial court would have undoubtedly granted the motion to dismiss.

The State would then have been allowed to amend the information to add more specificity as to the nature of the position of trust, authority, or supervision defendant held over B.H.

Under these circumstances, there was no prejudice by her attorney’s decision to wait until mid-trial to file the motion to dismiss. Thus, defendant has not met the second prong of Strickland. No further discussion of defendant’s claim of ineffective assistance is necessary.

See Also

People v. Swift, 2016 IL App (3rd) 140604 (October) – Episode 249 (defendant must show prejudice when challenging the indictment in the middle of trial)