Background
Roberto Rosado, a 58-year-old Chicago man, was charged with two counts of stalking 33-year-old Analiza Mercado, a woman he had noticed in his neighborhood but who did not know him. Count I alleged that Rosado engaged in a course of conduct by repeatedly appearing around the victim’s residence. Count II alleged that he followed or placed the victim under surveillance by attaching multiple GPS tracking devices to her vehicle on at least two separate occasions between December 8, 2021, and February 18, 2022.
The evidence at trial showed a sustained pattern of obsessive conduct over several months. Rosado tracked Mercado’s movements before he ever confronted her directly — he knew she had traveled to Long Grove and to an address on East Delaware Street before she realized anyone was following her. He accosted her in her private parking lot on December 8, 2021, offering jewelry and referencing places she had been. He then visited the ground-floor flower shop in her building more than six times over two days seeking personal information about her and banging on the shop door after the proprietor locked it to keep him out. Police ultimately linked three GPS trackers placed on Mercado’s vehicle to the defendant through his Amazon account, a T-Mobile number he owned, and surveillance footage showing him crouching near her car in the early morning hours of February 18, 2022.
Following a bench trial in Cook County Circuit Court, Judge Michael J. Hood found Rosado guilty on both counts and sentenced him to two concurrent 642-day terms of imprisonment (with credit for time served) and two concurrent five-year terms of probation, including GPS monitoring and a no-contact order. Rosado appealed, arguing that one conviction must be vacated under the one-act, one-crime rule and that the five-year probation term was unlawful.
The Court’s Holding
The Illinois Appellate Court, First District, affirmed both stalking convictions and rejected the one-act, one-crime challenge. The court found that the two counts rested on distinct physical acts rather than a single act. Count I was predicated on Rosado physically following the victim and lurking by her car on December 8, 2021, repeatedly appearing at her building over six times between December 9 and 11, 2021, and crouching next to her vehicle to install a third tracker on February 18, 2022. Count II was predicated on placing two different GPS devices on the victim’s windshield prior to January 14, 2022, and using those devices to surveil her movements to Long Grove, East Delaware Street, and Sutherland’s Bar. Because each count relied on separate and distinct acts, the rule was not violated.
The court also rejected Rosado’s argument that much of the conduct underlying Count I constituted protected speech under the First Amendment. While acknowledging that his conversations with the victim and the flower shop owner were protected, the court held that his surrounding physical actions — trailing the victim into her private parking lot, lurking next to her vehicle, repeatedly appearing in and around her building, and banging on the flower shop door — were not speech at all. Similarly, the court found that tracking the victim to Sutherland’s Bar and using her father’s name to impersonate him were not protected speech.
On sentencing, however, the court agreed with both parties that the five-year probation term exceeded the statutory maximum. Because stalking as charged was a Class 4 felony under 720 ILCS 5/12-7.3(b), the maximum probation term was 30 months under 730 ILCS 5/5-4.5-45(d). The court reduced the probation term accordingly under Illinois Supreme Court Rule 615(b)(4).
Key Takeaways
- Two stalking counts do not violate the one-act, one-crime rule where each count is predicated on distinct physical acts — here, repeated physical appearances near the victim’s residence versus placement of multiple GPS trackers on her vehicle.
- Physical surveillance conduct (trailing a victim, lurking near her vehicle, repeatedly appearing at her building) is not protected speech under the First Amendment, even where accompanying conversations may be protected.
- Impersonation intended to obtain information or a benefit, and making silent or pretextual phone calls, are not protected speech for purposes of the Illinois stalking statute.
- A five-year probation term for a Class 4 felony stalking conviction is illegal under Illinois law; the statutory maximum is 30 months pursuant to 730 ILCS 5/5-4.5-45(d).
- This order was filed under Illinois Supreme Court Rule 23 and is not precedential except in the limited circumstances set forth in Rule 23(e)(1).
Why It Matters
The decision illustrates how courts analyze GPS-based stalking prosecutions under the one-act, one-crime framework, particularly when a defendant argues that accompanying speech — asking for directions, offering gifts, speaking with third parties — is constitutionally protected and therefore cannot anchor a separate conviction. The court’s analysis confirms that the physical acts of surveillance, installation of tracking devices, and repeated presence near a victim’s home are each independently cognizable criminal acts, and that protective First Amendment arguments will not collapse distinct physical conduct into a single act.
The sentencing correction is also a practical reminder for practitioners: Illinois’s Class 4 felony probation cap of 30 months is a hard ceiling, and a trial court’s imposition of a longer term — even one crafted with the victim’s safety in mind — is an illegal sentence that an appellate court will reduce as a matter of law, regardless of the sentencing judge’s rationale.