People v. Kotlarchik
| Decision Date | 07 February 2022 |
| Docket Number | 2-20-0358 |
| Citation | 2022 IL App (2d) 200358,198 N.E.3d 1165,459 Ill.Dec. 788 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven M. KOTLARCHIK, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Donald J. Ramsell, of Ramsell & Associates, LLC, of Wheaton, for appellant.
Jamie L. Mosser, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Barry W. Jacobs, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 1 After the trial court found defendant, Steven M. Kotlarchik, guilty of misdemeanor driving under the influence of alcohol (DUI) and improper lane usage, the court granted defendant a new trial on the DUI charge. Defendant moved for dismissal of the DUI charge based on double jeopardy, which the trial court denied. He appeals, contending that the court should have dismissed the DUI charge because the State failed to prove him guilty beyond a reasonable doubt at his first trial and, thus, double jeopardy precludes his retrial. We affirm.
¶ 3 Defendant was charged with aggravated DUI ( 625 ILCS 5/11-501(d)(2)(C) (West 2016)), misdemeanor DUI (id. § 11-501(a)(2) ), and improper lane usage (id. § 11-709(a)). Following a bench trial, the trial court found defendant guilty of misdemeanor DUI and improper lane usage. Before sentencing, defendant moved for either a judgment of acquittal of the charge of misdemeanor DUI based on insufficiency of the evidence or a new trial based on the lack of a jury waiver. The trial court granted defendant a new trial based on the absence of a jury waiver.
¶ 4 Defendant then moved to dismiss the charge of misdemeanor DUI arguing that, at his first trial, the State failed to prove him guilty beyond a reasonable doubt and, thus, double jeopardy barred a retrial. The court denied the motion, and defendant timely filed this interlocutory appeal pursuant to Illinois Supreme Court Rule 604(f) (eff. July 1, 2017).
¶ 6 Defendant argues that the trial court erred by denying his motion to dismiss his DUI charge on double jeopardy grounds because the State's evidence was insufficient to prove his guilt beyond a reasonable doubt. Defendant argues that Rule 604(f) mandates that we review the sufficiency of the evidence from his first trial before forcing him to undergo a second trial.
¶ 7 Generally, subject to certain exceptions, appellate courts do not have jurisdiction to review judgments, orders, or decrees that are not final. People v. Smith , 338 Ill. App. 3d 254, 256, 273 Ill.Dec. 211, 788 N.E.2d 802 (2003). In a criminal case, the sentence is the final judgment. People v. Abdullah , 2019 IL 123492, ¶ 19, 442 Ill.Dec. 653, 160 N.E.3d 833. However, Rule 604(f) creates an exception by providing for an appeal before a final judgment or an interlocutory appeal.
¶ 8 Rule 604(f) provides in its entirety, Ill. S. Ct. R. 604(f) (eff. July 1, 2017). Nothing in the plain language of this rule supports defendant's argument that we must review the sufficiency of the evidence from his first trial. Rather, the express language in Rule 604(f) grants interlocutory review only to defendant's double jeopardy claim. See People ex rel. City of Chicago v. Hollins , 368 Ill. App. 3d 934, 941, 307 Ill.Dec. 253, 859 N.E.2d 253 (2006) (). Further, we have explained that Rule 604(f) does not require this court to rule on the sufficiency of the evidence presented at trial. Smith , 338 Ill. App. 3d at 256-57, 273 Ill.Dec. 211, 788 N.E.2d 802 (citing People v. Hobbs , 301 Ill. App. 3d 581, 589, 234 Ill.Dec. 843, 703 N.E.2d 943 (1998) ).
¶ 9 Next, defendant maintains that the trial court erred by denying his motion to dismiss his DUI charge based on double jeopardy. Defendant contends that the prohibition against double jeopardy bars a retrial because the State's evidence was insufficient to prove his guilt beyond a reasonable doubt of DUI. The State responds that, regardless of the sufficiency of the evidence at the first trial, a retrial is permissible because defendant's jeopardy never terminated. We agree with the State.
¶ 10 The parties disagree regarding which standard of review should apply to our review of the court's denial of defendant's motion to dismiss his DUI charge based on double jeopardy. Defendant argues for an abuse of discretion standard of review; the State argues for de novo review. Where, as here, neither the facts nor witnesses’ credibility are at issue, we review de novo a trial court's ruling on a motion to dismiss charges on double jeopardy grounds. See People v. Ventsias , 2014 IL App (3d) 130275, ¶ 10, 383 Ill.Dec. 74, 13 N.E.3d 825 ; see also People v. Gaines , 2020 IL 125165, ¶ 24, 450 Ill.Dec. 349, 181 N.E.3d 701 ().
¶ 11 Defendant cites People v. Campos , 349 Ill. App. 3d 172, 285 Ill.Dec. 427, 812 N.E.2d 16 (2004), to support his argument. In Campos , we held that abuse of discretion was the proper standard for reviewing the trial court's denial of the defendant's motion to dismiss the charges against him on the ground that the State intentionally provoked a mistrial. Id. at 175, 285 Ill.Dec. 427, 812 N.E.2d 16. In so holding, we acknowledged that "generally, *** review is de novo when a constitutional right is at stake." Id. at 174, 285 Ill.Dec. 427, 812 N.E.2d 16. We explained, however, that when determining whether the prosecution provoked a mistrial, the key issue was the prosecutor's intent, and the trial court was in the best position to assess the prosecutor's credibility. Id. at 175, 285 Ill.Dec. 427, 812 N.E.2d 16. Accordingly, we held that we would not overturn the trial court's factual findings unless they were against the manifest weight of the evidence. Id. Here, for reasons explained below, we need not reach defendant's argument regarding the sufficiency of the evidence. Therefore, we need not review the trial court's factual findings or findings regarding intent and credibility. Thus, Campos is distinguishable, and our review is de novo.
¶ 12 "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 persons shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ " People v. Bellmyer , 199 Ill. 2d 529, 536-37, 264 Ill.Dec. 687, 771 N.E.2d 391 (2002) ); see also Ill. Const. 1970, art. I, § 10 ; 720 ILCS 5/3-4(a) (West 2016) (). The double jeopardy clause protects against (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. Gaines , 2020 IL 125165, ¶ 22, 450 Ill.Dec. 349, 181 N.E.3d 701.
¶ 13 However, this protection is triggered only if an event, such as an acquittal, terminates the original jeopardy. Richardson v. United States , 468 U.S. 317, 325-26, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) ; Smith , 338 Ill. App. 3d at 255, 273 Ill.Dec. 211, 788 N.E.2d 802. Thus, defendant cannot prevail on his claim unless his original jeopardy terminated, which it did not. See People v. Cordero , 2012 IL App (2d) 101113, ¶ 3, 358 Ill.Dec. 718, 965 N.E.2d 1197.
¶ 14 The reasoning in Cordero and Richardson controls this case. In Cordero , the defendant moved for either a judgment of acquittal or a new trial. Id. ¶ 1. The trial court denied an acquittal but granted the defendant a new trial on the ground that certain evidence had been improperly excluded. Id. The defendant then moved to dismiss the charges based on double jeopardy. Id. The trial court denied the motion. Id. Before the defendant's second trial, he appealed pursuant to Rule 604(f). Id. We affirmed, holding that although the trial court granted the defendant a new trial based on trial error, there was never an event, such as an acquittal, that terminated the defendant's original jeopardy. Id. ¶ 4. We explained:
Id.
In contrast to a Rule 604(f) interlocutory appeal, on direct appeal, when a reviewing court reverses a criminal conviction and remands the case for a new trial, the reviewing court must decide whether the evidence was sufficient, or double jeopardy will bar a retrial. Id. ¶ 6. "The State cannot retry a defendant once it has been determined that the evidence introduced at trial was insufficient to sustain a conviction." People v. Lopez , 229 Ill. 2d 322, 367, 323 Ill.Dec. 55, 892 N.E.2d 1047 (2008).
¶ 15 In reaching our conclusion in Cordero , we relied on Richardson , 468 U.S. 317, 104 S.Ct. 3081. See Cordero , 2012 IL App (2d) 101113, ¶¶ 5-7, 358 Ill.Dec. 718, 965 N.E.2d 1197. Although Richardson involved a retrial after a hung jury ( Richardson , 468 U.S. at 318, 104 S.Ct. 3081 ) as opposed to a conviction reversed for trial error, we stated that there was "no reason why a defendant who was found guilty beyond a reasonable doubt should enjoy greater protection than one whose jury could not reach a verdict either way." Cordero , 2012 IL App (2d) 101113,...
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