People v. Petrie

• Decision Date: 25 August 2021
• Docket Number: 2-19-0213
• Citation: 2021 IL App (2d) 190213,192 N.E.3d 800,455 Ill.Dec. 971
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Katie L. PETRIE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (2d) 190213

192 N.E.3d 800

455 Ill.Dec. 971

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

v.Katie L. PETRIE, Defendant-Appellant.

No. 2-19-0213

Appellate Court of Illinois, Second District.

Opinion filed August 25, 2021

James E. Chadd, Thomas A. Lilien, and Amaris Danak, of State Appellate Defender's Office, of Elgin, for appellant.

Richard D. Amato, State's Attorney, of Sycamore (Patrick Delfino, Edward R. Psenicka, and Barry W. Jacobs, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, the defendant, Katie L. Petrie, was found guilty of two counts of aggravated battery to a child (a Class X felony) ( 720 ILCS 5/12-3.05(b)(1) (West 2014)) and two counts of aggravated battery to a child (a Class 3 felony) (id. § 12-3.05(b)(2)). The victim, R.N., was an infant who was in her care and who sustained permanent injuries. After her motion for a new trial was denied, Petrie was sentenced to 11 years’ imprisonment. She appeals, arguing that (1) her jury waiver was invalid because she had requested a substitution of judge, but no substitution occurred and that judge accepted her jury waiver; and (2) her counsel provided her with deficient representation when he failed to adequately cross-examine the State's expert witnesses. We reverse and remand for a new trial.

¶ 2 Because the facts relevant to each issue are distinct, we proceed to our consideration of those issues. We will address the facts relevant to each issue as necessary.

¶ 3 I. Substitution of Judge and Jury Waiver

¶ 4 A. Background

¶ 5 Petrie was arrested and charged on January 9, 2016. She appeared in court that day, represented by attorney Richard Russo under a limited appearance, and her bond was set at $500,000. Two days later, Russo filed a motion to reduce bond. On January 13, the parties appeared before Judge Philip Montgomery, who announced that the case was assigned to Judge Robbin Stuckert but she was out sick temporarily. That day, and at every succeeding court date until she was released on bond, Petrie was present in court via video.

¶ 6 On January 15, Russo filed a motion for an automatic substitution of judge pursuant to section 114-5(a) of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/114-5(a) (West 2014)).

¶ 7 On January 19, the parties appeared again before Judge Montgomery (Judge Stuckert was still out), and Russo advised the court that Petrie had retained new counsel who would be filing an appearance shortly. The motion to reduce bond was continued. There was no mention of the motion for substitution of judge.

¶ 8 The next court date was January 26. The day before, the law firm of Johnson & Buh, LLC, filed its appearance as substitute counsel on behalf of Petrie. Attorney Johnson appeared in court before Judge Stuckert. He asked that the motion to reduce bond be heard the following week. Judge Stuckert agreed, but she noted that the prior defense counsel had filed a motion for substitution of judge. She stated that she was not sure "if that was addressed on the last court date." Johnson repeated his request that "the motion" be continued. Judge Stuckert set February 9 as the hearing date, but asked Johnson to let her know before then whether he wanted to proceed with the substitution, because in that case she would not hear the bond reduction motion. Johnson said that he would do so. The written order entered on January 26 did not mention the motion for substitution of judge.

¶ 9 On February 9, attorney Buh appeared for the defendant. He asked for and was granted more time so that he could meet with Petrie. No one mentioned the motion for substitution of judge.

¶ 10 The hearing on the motion to reduce bond commenced on February 22 before Judge Stuckert. There was no mention of the motion for substitution of judge. The hearing continued on February 29, when Judge Montgomery presided due to Judge Stuckert's absence. Judge Montgomery granted the motion, reducing the bond to $50,000. He also noted that the case would continue before Judge Stuckert. There was no mention of the motion for substitution of judge, which everyone appeared to have forgotten about.

¶ 11 Thereafter, Petrie was able to post bond. She was present in person at all later court dates relevant here. On May 16, 2016, after Petrie had been indicted by a grand jury, Judge Montgomery presided over her arraignment and admonished her regarding the charges against her. However, the case continued to be assigned to Judge Stuckert, who presided over most of the court dates during the next two years. On September 21, 2017, defense counsel advised Judge Stuckert that Petrie was willing to waive her right to a jury trial. Judge Stuckert questioned Petrie and found that her waiver was knowing and voluntary.

¶ 12 In March 2018, the case was transferred to Judge Montgomery, who began presiding over the case on April 5, 2018. After hearing from the parties about the status of the case, Judge Montgomery noted that a motion for substitution of judge had been filed in January 2016. Commenting that he did not know "what relevance it has really anymore," as Judge Stuckert had reassigned the case to him, he said that he "just wanted to bring that to everyone's attention that that was there." The attorneys did not respond to this comment and continued to discuss discovery issues.

¶ 13 At the next court date, however, defense counsel brought the matter up:

"[DEFENSE COUNSEL]: You had—the last time we were in court you had indicated—I believe it was the last time or the previous, that there was a substitution of judge with Judge Stuckert.

* * *

That was filed by a previous attorney. I didn't have anything to do with that, not that I'm having an issue with that. The issue is we executed a jury waiver which is a substantial right of my client before Judge Stuckert.

THE COURT: And I'm sure Judge Stuckert advised your client at the time that she waived it that a waiver is forever and she can't come back later on and change her mind.

[DEFENSE COUNSEL]: Correct, Judge. But the issue is it was after the substitution of Judge when Judge Stuckert was not allowed to do a substantive right.

THE COURT: Okay.

[DEFENSE COUNSEL]: I'm not saying that I want to go back to a Jury trial, Judge, I'm simply saying that this is an issue that I need to address with my client that I believe we need to re-execute another jury waiver because Judge Stuckert according to my understanding of substitution of judge, once that's filed, it's supposed to be immediately transferred to another judge. So we're talking about a substantive right that my client executed—

THE COURT: Well, let's stick with the motion that we have in front of us."

After the trial court heard and granted the defendant's motion to continue the trial date, it returned to the subject of how to proceed with respect to the earlier jury waiver:

"THE COURT: *** [H]opefully we can all be prepared to proceed on that status date with everything settled.

[DEFENSE COUNSEL]: Correct, Judge. I also anticipate at that time executing a jury waiver before your Honor.

THE COURT: Yeah, let's get that issue settled too. I hadn't thought of that, I'll be quite honest.

* * *

[DEFENSE COUNSEL]: [I]f we continue this case for three weeks [for status], at that point I'll have—I'll speak with my client about executing a jury waiver and we can possibly set a trial date in August. ***

THE COURT: I'll be quite honest, [state's attorney], I had not thought of the waiver in conjunction with the motion for substitution.

[STATE'S ATTORNEY]: Well, Judge, I do not know if a defendant files a motion and never asks for a ruling on it, how that affects the case *** but I think that it's not perhaps as straightforward as [defense counsel] is stating it is.

THE COURT: Well, I suppose it could become straightforward if Ms. Petrie decides to execute a jury waiver in front of me.

* * *

[DEFENSE COUNSEL]: And Judge, the reason why I brought up the jury waiver, what concerns me is if we go to trial *** and what happens on appeal.

* * *

And I just want—I just want to be up front with everybody about my concerns about that substitution of judge. I don't know if this issue has arisen in the past, I haven't researched it. I thought the easiest way to cure it is if we execute another jury waiver, but this is something I need to speak with my client about."

¶ 14 At the next court date, Judge Montgomery set a new trial date. He then commented that he did not "know how much of an issue it is regarding the substitution of judge and the jury waiver that was obtained." He went on,

"I don't think it's an issue, because regardless of the SOJ being ruled on or not, it's no longer in front of Judge Stuckert and [the defendant has] waived her right to a jury trial. *** So unless you think it's an issue and you haven't [sic ] prepared a motion, I would imagine that it will continue to a bench trial."

Defense counsel replied, "I fully expect that as well. *** I have no reason to indicate to your Honor or to the State that I would go forward as *** a jury trial." The court then stated that, if Petrie did not wish a bench trial, she would have to file a motion to withdraw the jury waiver. Defense counsel responded that he understood and said, "I don't plan on doing that, Judge."

¶ 15 No motion to withdraw the jury waiver was filed, and the case proceeded to a bench trial before Judge Montgomery. Petrie was convicted of all counts. One of the arguments in her posttrial motion for a new trial was the lack of a valid jury waiver due to the motion for substitution. The trial court denied the motion, saying that, "in regards to the substitution of judge, I don't believe that that's an issue that requires a new trial." Petrie now repeats her argument on appeal.

¶ 16 B. Analysis

¶ 17 Section 114-5(a) of the Code ( 725 ILCS 5/114-5(a) (West 2014)) provides that, "[w]ithin 10 days after a cause involving...