People v. Tate

• Decision Date: 14 September 2016
• Docket Number: No. 1–14–0598,1–14–0598
• Citation: 2016 IL App (1st) 140598,89 N.E.3d 766
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Edmond TATE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 140598

89 N.E.3d 766

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

v.Edmond TATE, Defendant–Appellant.

No. 1–14–0598

Appellate Court of Illinois, First District, Third Division.

Opinion filed September 14, 2016

Supplemental Opinion filed October 18, 2017

Patrick Cassidy and Scott Main, both of DePaul University Legal Clinic, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Tasha-Marie Kelly, Margaret A. Hillman, and Annette Collins, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Following a bench trial, defendant Edmond Tate was convicted of aggravated robbery and sentenced to 28 years' imprisonment. On appeal, defendant contends that the trial court erred in denying his pretrial motion for substitution of judge as untimely. We reverse.

¶ 2 We set forth the facts and procedural background of this case to the extent necessary to resolve the issue on appeal. On August 27, 2008, a robbery occurred at a store in Forest Park. An arrest warrant was issued for defendant on April 25, 2011, stating that he was to be brought to the courthouse in Maywood (Fourth Municipal District). Defendant was arrested on May 1, 2011, and on May 2, 2011, he was charged by felony complaint with unlawful restraint and aggravated robbery (case No. 11–4002416–01). On May 3, 2011, the half sheet indicated that Judge Vazquez set bond and defendant demanded a trial. On May 5, 2011, the half sheet indicated that Judge Grossi continued the matter to May 20, 2011. Nothing in the record suggests these appearances occurred anywhere other than the courthouse in Maywood.

¶ 3 On May 20, 2011, defendant appeared with an assistant public defender before Judge Grossi in a courtroom in Maywood.¹ The following colloquy occurred:

"THE COURT: Edmund [sic ] Tate.

What's the number on this?

ASSISTANT STATE'S ATTORNEY [ (ASA) ]: 11 CR 8270, June 9th.

ASSISTANT PUBLIC DEFENDER [ (APD) ]: What room is it going to?

THE COURT: All right. Mr. Tate, your case was indicted by the grand jury under Case No. 11 CR 8270. Your next court date is in Room 107.

What date?

APD: Shouldn't it be Room 108? Wasn't the last one—

THE COURT: I sent this mess to 105. So there's 20 cases, so I'm skipping 105.

APD: Can it go to 108?

THE CLERK: The last one went to 108.

THE COURT: So this one will go to 107.

APD: Well, he's asking for the 9th.

Motion State to the 9th.

ASA: Correct.

THE COURT: Motion State, June 9th, directly into Room 107."

The half-sheet entry for May 20, 2011, contained the notation "SUPER 11 CR 8270 NOLLE M/S 6/9/11 Rm 107." An order entered on the same day stated "MSNP [motion state nolle prosequi ] SBI [superceded by indictment] 11 CR 8270."

¶ 4 A true bill charging defendant with one count of aggravated robbery and two counts of aggravated kidnapping (case No. 11 CR 8270) was dated and file-stamped on May 25, 2011. However, the indictment return sheet, also file-stamped on May 25, 2011, listed May 19, 2011, as the date for the true bill. The half-sheet entry for May 25, 2011, indicated the indictment had been filed and also contained the notation "Pres. Judge Assignment Date: 6–9–11."

¶ 5 On June 9, 2011, the half sheet indicated that Judge Biebel, the presiding judge of the criminal division of the circuit court of Cook County, assigned the case to the Fourth Municipal District (Maywood). On the same day, defendant appeared with a different public defender before Judge Kipperman in a courtroom in Maywood. The prosecutor stated that defendant needed to be arraigned on case No. 11 CR 8270, but defendant asked for a continuance in order to speak with a private attorney. Judge Kipperman continued the matter to June 17, 2011, but the half-sheet entry memorializing the continuance was crossed out and the record contains no reference to proceedings from that day.

¶ 6 On July 11, 2011, a private attorney, Nathaniel Niesen, appeared for defendant before Judge Kipperman. The following colloquy occurred:

"THE CLERK: Tate.

THE COURT: When is the earliest you can come back, counsel? We just don't have the time today.

DEFENSE COUNSEL: I understand. The issue will have to be resolved. The earliest I can come back realistically is the 18th, unless you want me to come back in the afternoon on the 13th.

* * *

ASA: By agreement 7/18.

THE COURT: So it will be by agreement 7/18. Locate file. That's all I can do.

DEFENSE COUNSEL: Absolutely. I understand, [Y]our [H]onor."

¶ 7 On July 18, 2011, the court held a hearing on defendant's motion for substitution of judge, where defendant was represented by a private attorney, Steven Richards. At the hearing, the following colloquy occurred:

"THE COURT: Now what date was the SOJ filed?

DEFENSE COUNSEL: The SOJ was filed, [Y]our [H]onor, June 17th. There is an entry that I saw on the electronic docket that it was assigned to your call or assigned to suburban on June 9th.

I think the date of June 9th was mentioned the last time as well so I think we are—I think the true date it was assigned was June 9th, and we are within the ten days.

ASA: The 9th was the date that it was on your call, [Y]our [H]onor. That was the day of arraignment.

The case, from what we understand, it was superceded [sic ] by indictment on the 19th of May, and on the 20th before Judge Grossi it was assigned to this call.

That was the date the SOJ should have been made because—

THE COURT: It was.

ASA: By the 10–day period being up, it would have been at the end of May or prior to June 9th so the 10–day period had been expired as of the 9th.

THE COURT: All right. A motion for SOJ is denied on the basis of timeliness having been assigned to this courtroom May 20th.

* * *

DEFENSE COUNSEL: Just to make it clear, I don't think I have to preserve the record, but we are objecting to the SOJ being denied so we will reserve that."

¶ 8 The case proceeded to bench trial, where the evidence established that defendant entered the store in Forest Park and claimed he had a gun. He restrained the owner, took her rings, took some money and merchandise, and fled. Defendant's fingerprints were recovered from the store, and the owner identified defendant in a photo lineup, physical lineup, and at trial. The court found defendant guilty of aggravated robbery but acquitted him of aggravated kidnapping. Defendant's motion for new trial was denied, and in view of his criminal record, the court sentenced him to 28 years' imprisonment as a Class X offender.

¶ 9 On appeal, defendant contends the trial court erred in denying his motion for substitution of judge as untimely. Defendant disputes whether he could be charged with notice that his case had been assigned on May 20, 2011, when Judge Grossi merely indicated the room number for defendant's next appearance. He further argues that his case could not have been assigned that day because, per the Rules of the Circuit Court of Cook County, an indictment must be filed before the presiding judge of the criminal division assigns the case to a judge.² As defendant was indicted on May 25, 2011, and Judge Biebel assigned the case on June 9, 2011, defendant submits that his motion was timely filed within 10 days, on June 17, 2011. Additionally, defendant argues that he had the right to name two judges in his motion because he was indicted for a Class X felony, namely aggravated kidnapping, but could not have exercised that right had his case been assigned before indictment. Defendant acknowledges that his motion for substitution of judge is not included in the record but contends that if the absence of the motion is dispositive in the present appeal, this court should remand his case to the trial court for a hearing to recreate the record under Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006).

¶ 10 The State responds that defendant failed to establish that he ever filed a motion for substitution of judge or that the motion was legally sufficient. Even if the motion was filed, the State argues it was untimely because Judge Grossi assigned defendant's case to Judge Kipperman on May 20, 2011. As defense counsel was aware of the assignment, knowledge may be imputed to defendant irrespective of whether the assignment occurred in accordance with the normal procedure for assigning cases under the Rules of the Circuit Court of Cook County. The State also argues that defendant had notice of his superseding indictment based on the proceedings from May 20, 2011, and, therefore, could have named two judges in a motion for substitution at that time.

¶ 11 We note that a copy of the motion for substitution of judge is not included in the record on appeal and the half sheet does not indicate when the motion was filed. However, the transcript of the hearing on July 18, 2011, shows that neither the parties nor the court disputed that the motion was filed on June 17, 2011. Accordingly, contrary to the State's contention, whether defendant ever filed a motion for substitution of judge is not at issue on appeal. We now address the merits of the parties' remaining arguments.

¶ 12 As an initial matter, the State alleges that defendant forfeited review of the dismissal of his motion for substitution of judge because he did not file a posttrial motion challenging this issue. People v. Wade , 116 Ill. 2d 1, 9, 107 Ill.Dec. 63, 506 N.E.2d 954 (1987) (posttrial motion required to preserve issue of substitution of judge). Defendant replies that the proceedings following the dismissal of his motion for substitution of judge were void and may be challenged at any time and, alternatively, asks us to consider his claim under the second prong of the plain-error rule. Ill. S. Ct. R. 615(a). Before considering defendant's arguments regarding voidness and plain error, we must first determine whether the trial court erred in denying defendant's motion for substitution of judge. People v. Eppinger , 2013 IL 114121, ¶ 19, 368 Ill.Dec. 529, 984 N.E.2d 475 (absent an error, there...