People v. Menconi

2019 IL App (1st) 181185-U No. 1-18-1185 Third Division December 31, 2019

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the ILLINOIS, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) No. 14 CR 1739 v. ) ) Honorable LINO J. MENCONI, ) Joseph G. Kazmierski and ) Timothy J. Joyce, Defendant-Appellant. ) Judges, presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. Justices McBride and Howse concurred in the judgment.

ORDER

¶1 Held: The trial court properly denied defendant’s motion to dismiss the indictment where the indictment did not violate the statute of limitations. Defendant’s other challenges to conduct at trial cannot be addressed where defendant failed to provide an adequate record on appeal.

¶2 Following a jury trial, defendant Lino J. Menconi was convicted of theft of over $100,000

and sentenced to eight years in prison. On appeal, defendant argues that the trial court

erroneously denied his pretrial motion to dismiss the indictment for a violation of the statute

of limitations. He also contends, in the alternative, that (1) the trial court erred by barring him

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from arguing that he had reached a civil settlement with the aggrieved parties, (2) the State

failed to prove at trial that an extended statute of limitations applied, (3) the State violated the

court’s ruling on a motion in limine by eliciting testimony that he had violated the Illinois

Rules of Professional Conduct for attorneys and was being punished by the Attorney

Registration and Disciplinary Commission, and (4) the State failed to prove that he

permanently deprived the aggrieved parties of the stolen funds. We affirm. ¶3 I. BACKGROUND ¶4 A. The Charges ¶5 On January 16, 2014, defendant was indicted on, inter alia, four counts of theft based on

his alleged mishandling of more than $100,000 of annuity payments belonging to Lino W.

Menconi (Lino), defendant’s uncle who had granted defendant power of attorney over his

financial affairs. 1 Relevant here, count II of the indictment alleged that defendant exerted

unauthorized control over the annuity funds and used, concealed, or abandoned them while

knowing that he would “probably” permanently deprive Lino and Lino’s successors of the

funds. 720 ILCS 5/16-1(a)(1)(C) (West 2010). Similarly, count IV alleged that defendant

obtained control of the funds through deceptive means and used, concealed, or abandoned them

while knowing that he would “probably” permanently deprive Lino and Lino’s successors of

the funds. 720 ILCS 5/16-1(a)(2)(C) (West 2010). Each of the charges also alleged that,

pursuant to section 3-6(a)(2) of the Criminal Code of 1992 (Code), the statute of limitations

was extended because (1) the charges involved a breach of fiduciary duty and (2) the proper

prosecuting authority did not become aware of the offenses until June 20, 2013. See 720 ILCS

1 Defendant was acquitted of the indictment’s remaining counts related to fraud against a financial institution, and we omit discussion of the evidence and procedural history that pertains solely to those charges. -2-

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5/3-6(a)(2) (West 2010). The indictment further alleged that the charges were based on a

“series of acts” that culminated on January 8, 2011, thereby triggering section 3-8 of the Code,

which provides that the limitations period does not begin to run until the last criminal act in a

series is committed. See 720 ILCS 5/3-8 (West 2010). ¶6 According to a factual proffer filed by the State, defendant prepared in 2009 a durable

power of attorney, a health care power of attorney, a will, and a living trust for Lino, who was

then 71 years old and residing in a nursing home. The durable power of attorney granted

defendant broad authority over Lino’s finances, including, among various other things, the

power “to expend [Lino’s] assets for the reasonable health, maintenance, support and education

of [Lino’s] children.” In March 2010, defendant converted an annuity owned by Lino from one

that paid a benefit upon death to one that made regular payments during Lino’s lifetime. By

September 2010, defendant had received four annuity checks totaling approximately $174,000,

all of which he deposited into his own business account. Defendant then spent approximately

$52,000 of these funds on Lino’s care, but did not distribute the balance to Lino’s estate after

Lino’s death in August 2010. Instead, defendant used the remaining funds for his own personal

and business expenses such as his employee’s wages, his country club membership, his

children’s tuition, and his tax obligations. The account in which defendant deposited Lino’s

annuity checks was completely depleted on January 18, 2011. ¶7 B. Pre-Trial Proceedings ¶8 In February 2014, defendant, through counsel, 2 moved to dismiss the indictment on the

basis that, in violation of section 3-5(a) of the Code (720 ILCS 5/3-5(a) (West 2010)), it was

2 Defendant subsequently elected to proceed pro se in August 2014, a status he retained throughout his trial and this appeal. During the trial court’s required admonishments, defendant represented that he was a -3-

No. 1-18-1185

brought more than three years after the theft was allegedly committed. Defendant

acknowledged that the State alleged an extended statute of limitations, but argued that (1)

section 3-6(a)(2) of the Code was inapplicable because Lino’s heirs knew of the alleged theft

more than a year before the indictment, and (2) the “final act” for purposes of section 3-8 of

the Code was the deposit of the last annuity check into defendant’s account in September 2010,

not the depletion of the account in January 2011. ¶9 In response, the State contended that the indictment was timely filed under section 3-

6(a)(2) within one year of the state’s attorney learning of the theft on June 20, 2013.

Alternatively, the State maintained that, because the power of attorney authorized defendant

to deposit the annuity funds into his account, he did not commit his final act of theft until he

spent the funds on personal expenses for the last time in January 2011. ¶ 10 On December 29, 2014, the court heard arguments on defendant’s motion to dismiss, but

took the matter under advisement and reserved ruling. On February 5, 2015, the court

reconvened and instructed the parties to submit additional briefing on the impact of People v.

Chenoweth, 2015 IL 116898, which was decided by the Illinois Supreme Court in January

2015. ¶ 11 In defendant’s supplemental memorandum, he contended that Chenoweth “applie[d] to a

very narrow set of circumstances” not present in the instant case because, unlike the victim in

Chenoweth, Lino’s heirs were not elderly and were represented by counsel in a civil matter

prior to the state’s attorney learning of the theft. Consequently, defendant maintained that the

lawyer, but not currently licensed to practice law in Illinois. According to the State’s proffer, defendant’s law license was suspended in 2013 based in part on the charges in the present case. -4-

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period of limitations had expired by January 2014 because that date was more than one year

after Lino’s heirs discovered the theft within the meaning of section 3-6(a)(2). ¶ 12 In response, the State argued that Chenoweth drew a key distinction between the

“discovery” of an offense for purposes of section 3-6(a)(2) and the awareness of a loss or the

mere suspicion that a crime occurred. Thus, according to the State, Lino’s heirs did not

“discover” the theft even if they suspected that defendant committed a crime or knew that he

breached his civil duty of care in handling the missing funds. Instead, the State maintained that

section 3-6(a)(2) was not triggered until the state’s attorney learned of the theft on June 20,

2013, and that the January 2014 indictment was therefore timely. ¶ 13 The court denied defendant’s motion to dismiss after a hearing on June 4, 2015, stating that

it found Chenoweth controlling on the issue of when the statute of limitations began to run. ¶ 14 On March 24, 2016, defendant moved for reconsideration, arguing that the trial court’s

ruling was “ambiguous, erroneous, and contrary to the undisputed facts in the case.” In

particular, defendant reiterated his contention that section 3-6(a)(2) was triggered before the

state’s attorney’s involvement because Lino’s heirs filed a detailed police report regarding the

missing annuity funds and executed written settlement agreements regarding defendant’s

management of Lino’s estate with the assistance of experienced counsel. After numerous

continuances, the court reconvened on September 14, 2017 and denied defendant’s motion to

reconsider, noting that it was “essentially the same motion that was made before.” ¶ 15 C. Trial and Sentencing ¶ 16 The case proceeded to a jury trial beginning on January 31, 2018. The docket indicates that

proceedings were held on January 31, February 1, February 2, and February 5, but the record

on appeal contains a transcript for only February 5. On that date, the parties presented their

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closing arguments, the court instructed the jury, and the jury found defendant guilty on counts

II and IV. Following a hearing on April 3, 2018, the court merged the counts and sentenced

defendant to eight years in prison. The court subsequently denied defendant’s motion to

reconsider the sentence on May 16, 2018. No transcripts from either date appear in the record. ¶ 17 II. ANALYSIS ¶ 18 On appeal, defendant raises several arguments as to why the indictment violated the statute

of limitations. First, he contends that the period of limitations should not have been extended

under section 3-6(a)(2) of the Code because Lino’s heirs discovered the theft more than one

year before the indictment. Second, defendant contends that section 3-8 of the Code is

inapplicable because theft is not a continuing offense comprised of a “series of acts.”

Alternatively, defendant also argues that (1) the trial court erred by refusing to allow him to

argue that he had reached a final settlement with Lino’s heirs regarding the annuity funds, (2)

the State did not prove the application of either section 3-6(a)(2) or section 3-8 at trial, (3) the

State violated the trial court’s ruling on a motion in limine barring evidence that defendant had

violated the Illinois Rules of Professional Conduct for attorneys or had been punished by the

Attorney Registration and Disciplinary Commission, and (4) the State did not prove that Lino’s

heirs were permanently deprived of the stolen funds. ¶ 19 A. Statute of Limitations ¶ 20 Defendant’s arguments require us to interpret the statutory language of the Code, which is

a question of law we review de novo. People v. Gutman, 2011 IL 110338, ¶ 12; People v.

Zimmerman, 239 Ill. 2d 491, 497, 347 (2010). The goal of statutory construction is to ascertain

the legislature’s intent, the best indicator of which is the plain and ordinary meaning of the

statutory language. People v. Howard, 233 Ill. 2d 213, 218 (2009). Where the language of a

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statute is clear and unambiguous, we must give effect to it without resorting to further aids of

construction. People v. Collins, 214 Ill. 2d 206, 214 (2005). Although ambiguous penal statues

should generally be constructed in favor of leniency towards the accused, this rule does not

require us to adopt a construction contrary to the purpose of the statute or the legislature’s clear

intent. In re B. C., 176 Ill. 2d 536, 551 (1997); People v. Kelly, 344 Ill. App. 3d 1058, 1063

(2003). ¶ 21 1. “Discovery” of the Offenses ¶ 22 Section 3-5(b) of the Code provides that a felony indictment must generally be brought

within three years of the offense. 720 ILCS 5/3-5(b) (West 2010). However, this general

limitations period may be extended in certain circumstances. See 720 ILCS 5/3-6 (West 2010).

Relevant here, section 3-6(a)(2) provides that, in cases of theft involving a breach of the

defendant’s fiduciary obligations, the prosecution must be commenced:

“within one year after the discovery of the offense by an aggrieved person, or by a

person who has legal capacity to represent an aggrieved person or has a legal duty to report

the offense, and is not himself or herself a party to the offense; or in the absence of such

discovery, within one year after the proper prosecuting officer becomes aware of the

offense.” 720 ILCS 5/3-6(a)(2) (West 2010). ¶ 23 Defendant contends that the one-year limitations period of section 3-6(a)(2) was triggered

on either (1) February 7, 2012, when Lino’s son contacted the police about the missing funds,

or (2) January 10, 2013, when defendant and Lino’s heirs entered into a civil settlement

regarding the funds. The State, on the other hand, maintains that the theft was not discovered

within the meaning of section 3-6(a)(2) until the police submitted the investigatory file to the

state’s attorney on June 20, 2013.

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No. 1-18-1185 ¶ 24 Our supreme court examined when an offense is deemed “discovered” for purposes of

section 3-6(a)(2) in Chenoweth. There, the defendant was charged with financially exploiting

her elderly stepmother, who had granted the defendant property power of attorney. Chenoweth,

2015 IL 116898, ¶ 3. The defendant sold the victim’s house in March 2005. Id. In September

2008, the victim granted property power of attorney to a non-profit agency, which discovered

that proceeds from the sale of the house were missing. Id. The agency contacted the police,

who, in December 2008, identified several suspicious expenditures in the defendant’s bank

records. Id. Officers then interviewed the victim and learned that she had not given the

defendant permission to spend the money for those purposes. Id. ¶¶ 7-8. ¶ 25 The State filed a three-count indictment against defendant on December 21, 2009, alleging

that the offenses occurred between December 2004 and July 2005. Id. ¶ 13. The State

subsequently obtained the trial court’s permission to file an information alleging that the period

of limitations was extended under section 3-6(a)(2) because the defendant was indicted within

one year of January 22, 2009, when the state’s attorney received the investigative file from the

police and became aware of the offenses. Id. ¶ 14. The defendant moved to dismiss the

information as untimely. Id. ¶ 15. The trial court denied the motion, and, after a bench trial,

found defendant guilty of financial exploitation of an elderly person. Id. ¶ 15. ¶ 26 On appeal, a majority of a panel of this court held that the victim discovered the offenses

within the meaning of section 3-6(a)(2) on December 5, 2008, the day she learned from the

police that the defendant had written unauthorized checks from her account. Id. ¶ 25. ¶ 27 Our supreme court disagreed, stating that the clear and unambiguous meaning of the phrase

“discovery of the offense” as used in section 3-6(a)(2) was “gaining knowledge or finding out

that a criminal statute has been violated.” Id. ¶ 27. The court therefore found the defendant’s

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position to be flawed because it falsely equated the victim’s knowledge of missing money and

mere suspicion of criminal activity with knowledge that a penal statue had been violated. Id. ¶

28. The court also stated that, because the defendant held unrestricted property power of

attorney, the fact that the defendant made unauthorized expenditures did not automatically

mean that she had committed misappropriation. Id. ¶ 28. Thus, although the victim might have

known the defendant violated the civil duty of care after speaking to police, the victim did not

know that a crime had been committed. Id. ¶ 34. Accordingly, the court concluded that the

one-year limitations period set forth in section 3-6(a)(2) did not begin to run until the police

submitted their investigative file to the state’s attorney on January 22, 2009. Id. ¶ 36. The

indictment, which was filed on December 21, 2009, was therefore timely. Id. ¶ 28 Here, as in Chenoweth, the power of attorney granted defendant significant control over

Lino’s finances, including the ability to spend the annuity funds for certain purposes. Thus, we

cannot say that Lino’s heirs had knowledge of criminal activity when they reported missing

funds to the police. Nor can we say that the heirs were aware of a criminal violation by virtue

of their civil settlement with defendant. Although defendant suggests that Lino’s heirs were

represented in the civil matter by an experienced attorney with some background in criminal

law, nothing in the record demonstrates that either the heirs or their attorney had knowledge of

a crime. Instead, in line with Chenoweth, we find that defendant’s criminal activity was not

discovered for statute of limitations purposes until the state’s attorney received the

investigative file from the police on June 20, 2013. Consequently, the January 2014 indictment

was timely filed, and the trial court properly denied defendant’s motion to dismiss. ¶ 29 2. “Series of Acts”

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No. 1-18-1185 ¶ 30 Although the trial court stated that it denied defendant’s motion to dismiss in light of

Chenoweth, which involves only section 3-6(a)(2) of the Code, defendant contends that the

court also based its ruling on an erroneous interpretation of section 3-8. Specifically, defendant

maintains that section 3-8, which applies only “[w]hen an offense is based on a series of acts

performed at different times,” has no bearing on this case because his theft was a singular act

that was complete when he deposited the last annuity check more than three years before the

indictment. See 720 ILCS 5/3-8 (West 2010). However, as we have determined that the

indictment was timely filed under section 3-6 of the Code, and may affirm the trial court’s

judgment on any basis, regardless of the court’s actual reasoning (People v. Carlisle, 2019 IL

App (1st) 162259, ¶ 69), we need not consider whether section 3-8 applies in this case. ¶ 31 B. Incomplete Record ¶ 32 Defendants next raises several challenges to the sufficiency of the evidence, the trial court’s

rulings, and the State’s arguments at trial. However, as noted, defendant has failed to provide

a report of proceedings or an acceptable substitute for any of the trial, except for closing

arguments. Given the inadequacy of the record, it is impossible for us to review defendant’s

remaining claims. ¶ 33 It is well-settled that the appellant bears the burden of providing a record on appeal that is

sufficient to support his claims of error. Foutch v. O’Bryant, 99 Ill. 2d 389,392 (1984). Without

such a record, a reviewing court must presume that the trial court’s order was in conformity

with the law and supported by a proper factual basis. People v. Banks, 378 Ill. App. 3d 856,

861 (2007). This rule is relaxed, however, if (1) the missing record is material to a meaningful

appeal, and (2) the appellant is not at fault for the incompleteness of the record. People v. Sims,

403 Ill. App. 3d 9, 15 (2010). Here, there is no dispute that the missing trial transcripts are

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material to the appeal because they are necessary to evaluate defendant’s claims. Thus, we

must decide whether defendant can show that he is not at fault for the inadequate record. ¶ 34 Defendant contends that he made “diligent and complete attempts to supplement the record

on appeal,” and that the inadequacies in the record are attributable to the Clerk of the Court

rather than himself. In particular, defendant asserts that he filed a motion to supplement the

record on appeal to include the “official Report of Compliance subparts AAA, BBB, II, JJ, and

VV,” and that the missing transcripts included in the Report of Compliance were forwarded,

in their entirety, to the Clerk of the Appellate Court. However, according to the Clerk of the

Appellate Court’s records, a supplemental record was never received with defendant’s motion. ¶ 35 Due to the absence of a proposed supplemental record, the court denied defendant’s motion

to supplement the record. The typewritten order, dated January 22, 2019, stated, “IT IS

HEREBY ORDERED THAT: Defendant-Appellant’s Motion to Supplement the Record is

GRANTED/DENIED. The Clerk of the Circuit Court of Cook County is directed to prepare a

certified supplemental record consisting of Report of Compliance subparts AAA, BBB, II, JJ,

and VV.” The order contains annotations striking out the word “GRANTED” and circling the

word “DENIED.” The order also contains a handwritten annotation under the typewritten text

reading, “have until Feb. 21 2019 to properly file record in our court[.]” ¶ 36 The State contends that this order gave defendant until February 21, 2019 to file the trial

transcripts as a supplemental record. Defendant, citing Illinois Supreme Court Rule 329 (eff.

July 1, 2017), maintains that the order “plainly direct[ed] the Clerk of the Circuit Court to

prepare and file a certified supplemental record.” ¶ 37 Under either interpretation, we disagree with defendant’s assertion that all fault lies with

the Clerk of the Circuit Court. Even assuming that the January 22 order was not directed at

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defendant, we note that defendant did not make any attempts to supplement the record or seek

any further recourse on the matter either before or after the February 21 deadline. Defendant

did, however, file motions (1) seeking to proceed on only the appellant’s brief, (2) objecting

to the State’s motion for extension of time, (3) seeking to accelerate the appeal, and (4)

requesting release on bond pending appeal. Defendant also filed a reply brief. Under these

circumstances, we find that defendant had ample time and opportunity to follow up with both

the Clerk of the Appellate Court and the Clerk of the Circuit Court to ensure that a complete

record was presented on appeal for this court’s review. ¶ 38 Although defendant also observes that he was incarcerated, indigent, and proceeding pro

se during the pendency of his appeal, we note that this status did not hinder his ability to file

the numerous motions mentioned. Regardless, the responsibility of providing the record for

the appellate court’s review remains firmly with the defendant. Banks, 378 Ill. App. 3d at 862. ¶ 39 In sum, defendant has not demonstrated that he is faultless, or that the circumstances

leading to the incomplete record on appeal were beyond his control. Accordingly, we do not

relax his burden of presenting a complete record for our review. As the record is insufficient

to review defendant’s challenges to the sufficiency of the evidence at trial, the court and

prosecutor’s conduct during the trial, and the alleged prejudice stemming from violations of

motions in limine affecting the jury’s verdict, we presume that the trial court acted in

conformity with the law and affirm his conviction. ¶ 40 B. Permanent Deprivation ¶ 41 As a final matter, we address defendant’s contention that he did not permanently deprive

Lino’s heirs of the stolen annuity funds because he and the heirs entered into a civil settlement

regarding the funds before the indictment. In his initial brief on appeal, defendant characterized

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this argument as a claim that the trial court erred by failing to dismiss the indictment “as a

matter of law” based on the State’s inability to satisfy an element of the charged offenses. In

his reply brief, however, defendant characterizes the issue as requiring reversal because the

State “did not establish the element at trial[.]” ¶ 42 Initially, we note that, contrary to what defendant seems to suggest on appeal, the State

was not required to prove that he actually permanently deprived Lino’s heirs of the stolen

annuity funds. Instead, as charged here, the State was required to prove that defendant used,

concealed, or abandoned the funds with knowledge that such use, concealment, or

abandonment would probably permanently deprive the heirs of the funds. 720 ILCS 5/16-

1(a)(1)(C), (a)(2)(C) (West 2010). ¶ 43 To the extent defendant argues that the State failed to prove this element at trial, we reject

this argument because, as we have explained, defendant has failed to provide a transcript of

the trial proceedings for our review. To the extent defendant claims the indictment should have

been dismissed as a matter of law, we find that the fact of the settlement did not negate

defendant’s criminal intent. Permanent deprivation is defined by statute as, among other things,

selling, giving, pledging, or otherwise transferring any interest in the property or subjecting it

to the claim of a person other than the owner. 720 ILCS 5/15-3(d) (West 2010). By spending

the annuity funds for personal purposes, defendant subjected the funds to claims by persons

other than Lino’s heirs. The fact the defendant later paid back the funds, through a settlement

agreement or other means, does not relieve him of criminal responsibility. See People v. Curoe,

97 Ill. App. 3d 258, 274 (1981) (the defendant, who embezzled funds from a decedent’s estate,

gave the aggrieved heirs promissory notes after they discovered that funds were missing from

the estate’s checking account); see also People v. Davis, 169 Ill. App. 3d 1, 4-5 (1988) (“Such

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a belated attempt to return stolen property in no way removes the original criminal intention.”)

(citing People v. Reans, 20 Ill. App. 3d 1005, 1008 (1974)). Accordingly, we reject defendant’s

argument regarding the element of permanent deprivation. ¶ 44 III. CONCLUSION ¶ 45 For the reasons stated, we affirm the circuit court’s judgment. ¶ 46 Affirmed.

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