People v. Kochevar

2020 IL App (3d) 140660 -B

156 N.E.3d 1096

441 Ill.Dec. 347

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Devin M. KOCHEVAR, Defendant-Appellant.

Appeal No. 3-14-0660

Appellate Court of Illinois, Third District.

Opinion filed February 4, 2020

PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Devin M. Kochevar, was charged by information with one count of criminal sexual abuse ( 720 ILCS 5/11-1.50(c) (West 2012)). He filed a motion to suppress the statement he made during a custodial interview with regard to the alleged abuse, which was denied. The case was tried before a jury, and Kochevar was found guilty. In the court's written order, he was sentenced to serve 90 days of jail time with all but 10 days suspended and 24 months of probation, and he was required to register as a sex offender, undergo sex offender treatment and aftercare, provide a DNA sample, and pay a variety of fines and fees. He appealed, challenging the denial of his motion to suppress his custodial statement as involuntarily procured and seeking reversal of his conviction and new proceedings. Kochevar later sought and was given leave to bring an as-applied constitutional challenge to the Sex Offender Registration Act (SORA) ( 730 ILCS 150/1 et seq. (West 2012)). In our opinion, we vacated the portion of Kochevar's sentence requiring him to register as a sex offender and remanded the case to the circuit court. The State filed a petition for leave to appeal in the supreme court. That petition was denied, and the court issued the following supervisory order:

"In the exercise of this Court's supervisory authority, the Appellate Court, Third District, is directed to vacate its judgment in People v. Kochevar , case No. 3-14-0660 [427 Ill.Dec. 113, 117 N.E.3d 498, 117 N.E.3d 498] (08/20/18). The appellate court is directed to consider the effect of this Court's opinion in People v. Bingham , 2018 IL 122008 [425 Ill.Dec. 611, 115 N.E.3d 166], on the issue of the constitutionality of sex offender statutes as applied to defendant, and to determine if a different result is warranted." People v. Kochevar , No. 124006, 426 Ill.Dec. 623, 116 N.E.3d 923, 116 N.E.3d 923 (Ill. Jan. 31, 2019) (supervisory order).

Pursuant to that directive, we now vacate our earlier judgment ( 2018 IL App (3d) 140660, 427 Ill.Dec. 113, 117 N.E.3d 498 ) and consider whether People v. Bingham , 2018 IL 122008, 425 Ill.Dec. 611, 115 N.E.3d 166, compels us to reach a different result.

¶ 2 I. BACKGROUND

¶ 3 There is no report of proceedings of either the suppression hearing or the trial in the record. There is also no written order documenting the trial court's decision on the motion to suppress, but there is a docket entry. There is no written order explaining the trial court's finding that Kochevar's statement was voluntary and denying the motion to suppress. An "Agreed Statement of Facts" and a "Supplemental Agreed Statement of Facts" were filed to supplement the common-law record. The balance of the record consists of a one-volume common-law record, which includes a sexual assessment, the two-part document signed by Kochevar, and his birth certificate. The following facts were derived from those documents and the parties' briefs.

¶ 4 Kochevar and C.R. had been acquainted for several years through their participation in track at Prophetstown High School. In 2012, when Kochevar was 16 (nearly 17) and C.R. was 14, the relationship grew closer. After Kochevar turned 18, their relationship became sexual. On March 16, 2013, upon learning of this relationship and the couple's alleged sexual activities the preceding night, C.R.'s parents called the police.

¶ 5 Two days later, Chief Michael Fisk and Sergeant Bruce Franks of the Prophetstown Police Department went to the high school and met with Kochevar in the school office. The officers asked him to go with them to the police station to give a statement regarding his relationship with C.R. Kochevar readily agreed and was driven to the station, uncuffed, in Franks's marked police car.

¶ 6 Once there, Kochevar was escorted directly to an interview room and was questioned by Franks and Fisk. After about 20 minutes, Kochevar gave an oral statement. He then agreed to prepare a written statement, which he composed and signed while alone in the interview room. Thereafter, the interview apparently resumed in the form of a series of written questions set out at the end of Kochevar's signed statement. He answered those questions in writing and signed them. Neither part of the document was prepared or signed under oath. This two-part document reads as follows:

"Right around a year ago, C.R. & I started talking. We were friends & neither one of us thought anything more would come of it. But C.R. & I talked a lot & started to like each other. When this first started I was 17 and she was 15. Or maybe I was about a month or so over 17. Either way, it was a two year difference. But C.R. & I would have never been aloud [sic ] to see each other because a little over a year ago, me & some of my friends threw eggs at her house & her sister's car because we didn't like her. Honestly, I regret that. It was a mistake I had to learn from. My car was egged & then I knew how it felt & it made me feel worse about it. But anyways, that's why we wouldn't be aloud [sic ] to be friends or anything like that. But neither one of us cared, we wanted to see each other so we made it work. Occasionaly [sic ] C.R. would sneak out to see me. Sometimes we would just drive around & other times we would go to my house. Our relationship didn't start out sexual. Honestly for the longest time we did no more than kiss. But eventually that changed & things became more than that. Yes, we did have sex, I won't deny that. But never did I force her. No matter how bad I wanted to do anything, I didn't do it unless she wanted to too. I'm not that kind of guy. Even after this I wouldn't say that I'm a ‘bad guy.’ Sure I make mistakes, I'm human but I think I'm an alright guy. I mean I always go to school, I get good grades. I'm a 3 sport athlete who excels in all of them. I've accepted an offer from Monmouth College to play basketball & run track for them on a scholarship. I actually plan to major in business and music so I can open up a place for kids, singers, or bands to come record music. That's my big plan. If I had to say one more thing about myself, I guess I would mention [signature at end of first page ] Drake. Drake is a young man on the Comanche track team. Drake throws shot & runs the short sprints. Drake isn't good at those things but he gives it his all. So one meet last year after I had one [sic ] the fastest heat of the 200, I asked the official if I could run it again. This time with Drake. He shook my hand & smiled then told me I could. So I ran that second 200. I ran it right behind Drake. I ran it and I lost. To a kid in a wheelchair. Drake competes with able bodied athletes even though he has never walked. Winning wasn't something he had experienced. So I cried my eyes out as I ran that race with him. It broke my heart. I talked with Drake & his parents & I ended up coming to another one of his meets & running with him again. To this day he & I remain friends. We always will be. But I'm not trying to sell anyone a sob story or convince you that I'm perfect. I wouldn't be writing this if that was the case. I understand how my relationship with C.R. was wrong. I understand why her parents are extremely upset. I would probably feel about the same way they do. Maybe they will get to read this & maybe they won't but I want to say that I'm sorry. I'm sorry for the past we have had & I'm sorry for this. But I can't say I wish it never happened. There is a big spot for that girl in my heart & I think there always will be. We have so much in common its [sic ] crazy. Yes, she is a little younger than me, but we still click. Will I end up with C.R.? Who knows, maybe & maybe not. Obviously some people might not like that but as long as she is happy, I'm happy. If she never wants to speak to me again or even wants to wait & see what happens when she is 18, I'm okay with whatever. As long as she is happy. I'm very sorry that any of this ever had to happen. I should have used my head more. But like I said, I'm only human. So hopefully this can all get worked out as easily as possible so we [signature at end of second page ] can move forward with our lives & get back on track. Thank you for taking the time to read what I had to say about this matter. I appreciate it. Sincerely, [signature at end of handwritten statement ].

Q. HOW OLD IS C*** R***?

A. 15

Q. HOW MANY TIMES HAVE YOU HAD SEX WITH C*** R*** AT AGE 17?

A. 0

Q. HOW MANY TIMES AT AGE 18 DID YOU HAVE SEX WITH C*** R***?

A. 20-30 times maybe

Q. WHEN IS THE LAST TIME YOU HAD SEX WITH C*** R*** ?

A. 3/15/13

Q. WHERE DID THE SEX OCCUR THE LAST TIME?

A. My house (320 Woodlawn Drive)

Q. DID YOU EVER FORCE HER TO HAVE SEX?

A. No

Q. DID YOU GIVE HER ALCOHOL OR DRUGS FOR SEX?

A. No

Q. DID YOU VIOLATE ANY LAW WITH YOUR RELATIONSHIP WITH C*** R***, IF SO WHAT LAW?

A. I don't think I did mainly because she was all for it & we didn't drink or do drugs or anything like that. But the age thing plays a part. [signature at end of questions ]"

After Kochevar signed the last part of the document, the officers took him back to school.

¶ 7 About three weeks later, on April 13, 2013, Kochevar was charged by information with one count of misdemeanor criminal sexual abuse. The count alleged that on March 15, 2013, he committed an act of sexual penetration with C.R., who was at least 13 but under 17 years of age and that he was less than 5 years older than C.R.

¶ 8 Kochevar filed a motion to suppress his custodial statement, arguing that it was made involuntarily. He claimed that, during the interview, Franks and Fisk, both of whom he had known personally since boyhood, repeatedly told him that "they already knew the...