People v. Soskin

• Decision Date: 25 October 2021
• Docket Number: 2-19-1017
• Citation: 2021 IL App (2d) 191017,192 N.E.3d 62,455 Ill.Dec. 645
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rollin J. SOSKIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (2d) 191017

192 N.E.3d 62

455 Ill.Dec. 645

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

v.Rollin J. SOSKIN, Defendant-Appellant.

No. 2-19-1017

Appellate Court of Illinois, Second District.

Opinion filed October 25, 2021

Ilia Usharovich and Sheldon Sorosky, both of Wheeling, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Lynn M. Harrington, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 An information charged defendant, Rollin J. Soskin, with violating an order of protection ( 720 ILCS 5/12-3.4(a)(1) (West 2018)). Defendant moved to dismiss the information, contending that the order of protection had been vacated by agreement. The trial court denied defendant's motion. After a bench trial, the trial court found defendant guilty of violating the order of protection. Defendant argues that (1) that the trial court erred by denying his motion to dismiss the information because the order of protection was rendered void ab initio , (2) the trial court erred by failing to dismiss the information because the information failed to recite an offense, (3) he was not proved guilty beyond a reasonable doubt of violating the order of protection, and (4) the order of protection was unconstitutional because it was overbroad and vague in violation of his first amendment rights. For the reasons that follow, we affirm the judgment of the trial court.

¶ 2 I. BACKGROUND

¶ 3 On June 8, 2018, during the dissolution of marriage case between defendant and Diana Soskin, the trial court (civil court), Judge Raymond D. Collins, presiding, issued an order of protection. The order indicated that defendant was to stay at least 500 feet away from Diana or her residence and that defendant shall have no "physical, verbal, written or 3rd party or social media contact" with Diana. The order stated that it was effective until January 22, 2019.

¶ 4 On August 6, 2018, the State filed a two-count information charging defendant with violating the order of protection in violation of section 12-3.4(a)(1) of the Criminal Code of 2012 (id. ). Count I alleged that on July 3, 2018, having been served with an order of protection, case No. 2018-OP-1021, issued on June 8, 2018, defendant knowingly committed an act prohibited by the order when he made prohibited contact, namely, a text message sent through a third party, David Loeb, to Diana. Count II alleged that on July 30, 2018,¹ defendant knowingly violated the order of protection when he made prohibited contact, namely, a text message sent through a third party, Steve Turner, to Diana.

¶ 5 On July 12, 2019, defendant filed a motion to dismiss the information, pursuant to section 114-1(a)(8) of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/114-1(a)(8) (West 2018)), "for a violation of due process of law, because the statutory allegation, under which he is being prosecuted, as written in the order of protection[,] ‘no 3rd party contract’: (1) fails to recite an offense; (2) is constitutionally vague; (3) is unconstitutionally overbroad; and (4) is unconstitutional because it can only be selectively enforced." The trial court (criminal court) denied defendant's motion.

¶ 6 On August 8, 2019, defendant and Diana signed a document entitled "Letter Agreement," (letter of agreement) which stated in part:

"1. Pursuant to Section 501(d) of the Illinois Marriage and Dissolution of Marriage Act, orders entered in the case of IRMO Soskin 17 D 1796 were entered as temporary orders, were entered without prejudice to a party's right to a subsequent hearing and terminate upon the entry of a Final Judgment for Dissolution of Marriage including, but not limited to the following Court Orders:

A. On November 20, 2017;

B. On January 18, 2018;

C. On June 8, 2018.

* * *

4. In accordance with the above, and simultaneous with the entry of Judgment for Dissolution of Marriage, the parties being in agreement, the Order of Protection shall be dismissed and/or vacated ab initio and the aforementioned Order shall no longer be in effect due to the divorce and good cause shown due to no full evidentiary hearing."

The words "ab initio " were added in handwriting after the word "vacated."

¶ 7 On the same day, the civil court, Judge Stephen M. DeRue presiding, heard testimony at the prove-up for the dissolution of marriage. Diana testified that she agreed to have the order of protection vacated "today." During defendant's testimony, his counsel asked: "[B]y virtue of [the letter of] agreement, your wife has agreed that those orders [of protection] will be vacated which will require a separate order by this Court to vacate those orders. And in addition to that, we have this letter of agreement which explains the reasons for vacating that order, correct?" Defendant replied, "Yes." Counsel then told defendant that the letter of agreement would be attached to the order. The trial court asked, "[a]ttaching the letter to the order?" Counsel explained, "[w]ell, we'll bring that to the criminal court's attention, our letter of agreement." The court stated, "[t]hat's something separate from myself." Counsel replied, "Yes." After hearing testimony, the civil court stated, "The judgment will enter as to the dissolution. The written marital settlement agreement will be incorporated by reference only."

¶ 8 On August 8, 2019, the civil court also entered a judgment of dissolution as to defendant and Diana. The judgment incorporated the parties’ marital settlement agreement, which was signed by Judge DeRue. The marital settlement agreement provided that "[t]he parties have entered into a Letter Agreement that is incorporated herein by Reference." The letter of agreement was not attached to the judgment of dissolution or the marital settlement agreement. Judge DeRue also signed a form order titled, "Order with Statutory Findings Regarding Petition for Order of Protection." On the form order, a box was checked next to the statement, "[t]hat pursuant to Petitioner's [(Diana)] request, the cause is non-suited."

¶ 9 On August 27, 2019, the civil court, Judge Collins presiding, entered an order providing:

"This matter coming to be heard on [defendant's] Emergency Motion for entry of order clarifying order, Judge DeRue hearing arguments for [defendant] and sending the matter to Judge Collins; Judge Collins being apprised of the premises;

IT IS HEREBY ORDERED: by agreement of the parties at the prove-up on August 8, 2019, the Order of Protection was vacated to the date of its inception and that was agreed upon by the parties at the August 8, 2019 prove-up."

¶ 10 On August 28, 2019, defendant filed in the criminal case a motion to dismiss the State's information, arguing that he could not be prosecuted for violating an order of protection that was void ab initio. That same day, the criminal court, Judge Ari P. Fisz presiding, held a hearing on defendant's motion. At the conclusion of the hearing, the court denied defendant's motion to dismiss the information.

¶ 11 The criminal court rejected defendant's argument that the order of protection was void ab initio because he was entitled to, but was denied, an evidentiary hearing before the issuance of the order of protection. The court stated that defendant was not entitled to an evidentiary hearing, citing section 219 of the Illinois Domestic Violence Act of 1986 (Act) ( 750 ILCS 60/219 (West 2018) ), and that defendant was actually given an evidentiary hearing, regardless. The court also found that defendant agreed to the entry of the order of protection on June 8, 2018.

¶ 12 The criminal court then addressed defendant's argument that the civil court's dissolution of marriage judgment retroactively vacated the order of protection, because the marital settlement agreement, which was incorporated into the judgment, incorporated by reference the parties’ letter of agreement. The court noted that the letter of agreement was not attached to the marital settlement agreement or to the judgment of dissolution. The court also noted that the transcript of the hearing before Judge DeRue clearly indicated that he did not intend the letter of agreement to be part of his dissolution judgment.

¶ 13 The criminal court also rejected defendant's argument that Judge Collins's clarifying order retroactively vacated the order of protection. The court noted that Judge Collins signed an order that dealt with the parties’ intentions at a prove-up that occurred in front of another judge (Judge DeRue). The court stated that it did not understand Judge Collins's order and that the order did not make any sense and was vague. The court also stated that, even if Judges DeRue and Collins did order that the order of protection was vacated retroactively, they did not have the ability to do so under the law. The court held that "a court cannot go back and invalidate an earlier order of protection nunc pro tunc if that order of protection was valid in the first place." Ultimately, the court denied defendant's motion to dismiss the State's information.

¶ 14 The criminal court then held a bench trial on the State's charges of violating an order of protection. At trial, Diana identified People's exhibit No. 1, the order of protection entered on June 8, 2018. Diana testified that on the date the order was entered she was in court with her attorney, defendant, and his attorney, David Frumm. After the order of protection was granted, Diana saw the sheriff hand defendant the order of protection before defendant left the courtroom.

¶ 15 Diana also testified that Steve Turner was a man she had been dating since March 2018. On June 30, 2018, Diana was on the phone with her son when Turner texted her. Turner then called Diana, but she was still on the phone with her son. When she got off the phone, Diana spoke with Turner, who said to make sure that she talked to her son because Turner...