People v. De La Hera , 2011 IL App (3d) 100301 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. De la Hera, 2011 IL App (3d) 100301Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ARISTIDES DE LA HERA, Defendant-Appellant.
District & No. Third District
Docket No. 3-10-0301
Filed August 18, 2011
Held On appeal from his conviction for speeding, defendant forfeited the
(Note: This syllabus argument that the trial court erred in admitting evidence of a moving
constitutes no part of radar reading by failing to raise the argument in a posttrial motion and by
the opinion of the court failing to request the appellate court to review the issue for plain error.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Grundy County, No. 09-TR-10411; the
Review Hon. Robert C. Marsaglia, Judge, presiding.
Judgment Affirmed.
Counsel on Gary R. Garretson, of Garretson Law Office, of Morris, for appellant.
Appeal
Johnathan M. Bates, State’s Attorney, of Morris (Terry A. Mertel and
Thomas D. Arado, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel PRESIDING JUSTICE CARTER delivered the judgment of the court,
with opinion.
Justices McDade and Wright concurred in the judgment and opinion.
OPINION
¶1 After a bench trial, the defendant, Aristides De la Hera, was convicted of speeding (625
ILCS 5/11-601(b) (West 2008)). The circuit court sentenced the defendant to 90 days of
court supervision and ordered him to pay a $185 fine. On appeal, the defendant argues that
the circuit court erred when it admitted evidence of a moving radar reading. We affirm.
¶2 On November 13, 2009, the defendant received a citation for speeding after he was
clocked by moving radar at 40 miles per hour in a 25 mile-per-hour zone. Over the
defendant’s objection, the circuit court admitted evidence of the moving radar reading. The
defendant was convicted and sentenced, and the defendant did not file a posttrial motion
prior to filing his notice of appeal.
¶3 The defendant’s sole argument on appeal is that the circuit court erred when it admitted
evidence of the moving radar reading. In part, the State responds that the defendant has
forfeited this argument because he did not include it in a posttrial motion. The defendant
does not agree that he has forfeited the argument. Rather, in his reply brief, the defendant
cites to five cases from 1979 to 1986 for the proposition that he does not have to raise an
issue in a posttrial motion after a bench trial to preserve it for appeal.
¶4 In People v. Enoch, 122 Ill. 2d 176, 186 (1988), our supreme court held that a defendant
must both object to an alleged error at trial and raise the alleged error in a posttrial motion
to avoid forfeiture of the issue on appeal. “The requirement for a written post-trial motion
is statutory, and the statute requires that a written motion for a new trial shall be filed by the
defendant and that the motion for a new trial shall specify the grounds therefor.” (Emphasis
in original.) Enoch, 122 Ill. 2d at 187 (citing Ill. Rev. Stat. 1983, ch. 38, ¶ 116-1 (now 725
ILCS 5/116-1 (West 2008))). Further, the Enoch court stated, “[s]imply because an objection
to evidence may have been made during the trial does not justify ignoring the clear mandate
of the statute that the question be set forth in writing in the motion for a new trial.” Enoch,
122 Ill. 2d at 187.
¶5 We acknowledge that in other districts of the appellate court, some post-Enoch authority
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exists for the proposition that “a posttrial motion is not necessary to preserve questions in
a bench trial if the issues were presented to the trial court.” People v. DiPace, 354 Ill. App.
3d 104, 107 (2004); see also People v. Crowder, 174 Ill. App. 3d 939, 941 (1988). However,
an examination of this proposition’s history leads to the conclusion that it should not have
survived our supreme court’s decision in Enoch.
¶6 In DiPace, the Second District cited the Fourth District’s opinion in Crowder, which
cited to Enoch but also cited the pre-Enoch case of People v. Larsen, 47 Ill. App. 3d 9, 16
(1977), for the proposition in question. Larsen cited to People v. Hoffman, 381 Ill. 460, 466
(1942), which in turn cited to People v. Tobin, 369 Ill. 73, 75-76 (1938). In Tobin, our
supreme court stated:
“The People contend that inasmuch as all of the errors assigned relate to the weight
and sufficiency of the evidence, they cannot be considered on review because the issue
was not raised in the trial court by a motion for a new trial, citing People v. Lehner, 335
Ill. 424 [(1929)], People v. Gabrys, 329 [Ill.] 101 [(1928)], and People v. Marshall, 309
[Ill.] 122 [(1923)]. However, all of these cases were tried by a jury. It has long been the
rule in Illinois, in civil cases, that in causes tried by a court without a jury a motion for
a new trial is unnecessary to preserve questions of the sufficiency of the evidence. (Sands
v. Kagey, 150 Ill. 109 (1894); Jones v. Buffum, 50 [Ill.] 277 [(1869)]; Mahoney v. Davis,
44 [Ill.] 288 [(1867)]; Metcalf v. Fouts, 27 [Ill.] 110 [(1862)].) We said in Mahoney v.
Davis, ‘The judge having once passed upon the evidence, it was not necessary to go
through the form of submitting it to him again by moving for a new trial.’ The same
reasoning applies with equal force to criminal cases tried by the court without a jury,
and, therefore, questions of the sufficiency of the evidence were properly preserved for
review though no motion for a new trial was made.” Tobin, 369 Ill. at 75-76.
It is important to note that this proposition was established prior to the enactment of the
Code of Criminal Procedure of 1963 (725 ILCS 5/100-1 et seq. (West 2008)).
¶7 In Enoch our supreme court unequivocally stated:
“Prior to 1963, a motion for a new trial was not required when the trial was before the
court and not a jury, but the language of section 116-1 has changed the law in that
respect and a written motion for a new trial is now required in both jury and nonjury
cases.” Enoch, 122 Ill. 2d at 187-88.
Thus, it is clear that the proposition in question–that a defendant does not have to raise an
issue in a posttrial motion after a bench trial to preserve it for appeal–ceased to exist as valid
precedent in Illinois when Enoch was decided in 1988.
¶8 In this case, because the defendant failed to file a posttrial motion raising his argument
and because he does not request this court to review the issue for plain error, he has forfeited
the argument on appeal. See People v. Hillier, 237 Ill. 2d 539, 545-46 (2010).
¶9 For the foregoing reasons, we affirm the judgment of the circuit court of Grundy County.
¶ 10 Affirmed.
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