Village of Glen Ellen v. Podkul , 2023 IL App (3d) 220420-U ( 2024 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 220420-UOrder filed February 15, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2024
VILLAGE OF GLEN ELLYN, ) Appeal from the Circuit Court
) of the 18th Judicial Circuit,
) DuPage County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-22-0420
v. ) Circuit No. 21-DT-686
)
MARTA A. PODKUL, ) Honorable
) Karen M. Wilson,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court.
Presiding Justice McDade and Justice Albrecht concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The defendant’s conviction is affirmed because the defendant forfeited the
argument that Village of Glen Ellyn lacked written permission from the State’s
Attorney to prosecute her.
¶2 Following a jury trial, the defendant, Marta A. Podkul, was convicted of driving under the
influence of alcohol in violation of sections 11-501(a)(1) and (a)(2) of the Illinois Vehicle Code
(Code) (625 ILCS 5/11-501(a)(1) and (a)(2) (West 2020)). She was sentenced to 30 days in jail
followed by 24 months’ probation. The defendant appeals her conviction, arguing that her
conviction was a nullity because the Village of Glen Ellyn (the Village) prosecuted her without
obtaining written permission from the State’s Attorney, as required by section 16-102(c) of the
Code (625 ILCS 5/16-102(c) (West 2020)).
¶3 I. BACKGROUND
¶4 On the evening of April 3, 2010, Glen Ellyn police officer Derek Wilke was dispatched to
a home in Glenn Ellyn in response to a report of a vehicle blocking the driveway. When Officer
Wilke arrived at the scene, he spoke with the defendant, who was sitting in the driver seat of a
vehicle parked on the street in front of the driveway. Officer Wilke detected a strong odor of an
alcoholic beverage in the car, and he observed that the defendant had bloodshot, glassy eyes and
was slurring her speech. After administering field sobriety tests, Officer Wilke concluded that the
defendant was under the influence of alcohol. The defendant agreed to take a breath test, which
revealed an alcohol concentration of .25.
¶5 The Village charged the defendant with driving under the influence of alcohol (DUI), a
class A misdemeanor. The Village’s verified complaint contained two counts. Count 1 alleged
that the defendant drove or was in physical control of a motor vehicle within the State while the
alcohol concentration in her breath was .08 or more, in violation of section 11-501(a)(1) of the
Code. (625 ILCS 5/11-501(a)(1) (West 2020)). Count 2 alleged that the defendant drove or was
in physical control of a vehicle within the State while under the influence of alcohol, in violation
of section 11-501(a)(2) of the Code (625 ILCS 5/11-501(a)(2) (West 2020)).
¶6 A verification form was attached to the Village’s complaint. The form included the phrase
“S.A Approval,” followed by a signature line. The signature line was left blank.
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¶7 A six-person jury found the defendant guilty of both DUI counts. The cause proceeded
immediately to sentencing, and the trial court sentenced the defendant to 30 days in jail followed
by 24 months’ probation on Count 1 only. (Count 2 merged with Count 1 at sentencing.)
¶8 The defendant filed a timely motion to reconsider and a timely motion for a new trial. The
defendant did not argue in her posttrial motions, or at any time before filing them, that the Village
lacked the authority to prosecute her because it had not obtained the prior approval of the State’s
Attorney. The trial court denied both of the defendant’s motions.
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, the defendant asks us to reverse her conviction because the Village failed to
show that it had obtained the prior approval of the State’s Attorney before prosecuting her.
¶ 12 Section 16–102(c) of the Code provides that “[t]he State's Attorney of the county in
which the violation occurs shall prosecute all violations [of the Code] except when the violation
occurs within the corporate limits of a municipality, the municipal attorney may prosecute if
written permission to do so is obtained from the State's Attorney.” (Emphasis added.) 625 ILCS
5/16-102(c) (West 2010). A municipal attorney must obtain such written permission before
bringing a prosecution for a violation of State law. There is no evidence in the record that the
Village obtained written permission from the State’s attorney to prosecute the defendant
specifically or to prosecute DUI offenses generally. The defendant argues that the Village’s
failure to provide evidence of such permission in the record renders her conviction a nullity.
¶ 13 The Village argues that the defendant forfeited any challenge to its prosecutorial
authority by failing to raise the issue before the trial court. The Village further contends that it
was not required to provide proof of the State’s Attorney’s delegation of authority in the record.
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¶ 14 We agree with the Village’s first argument. The defendant did not object to the Village’s
authority to prosecute her either during the trial or in her posttrial motions. She has therefore
forfeited the issue on appeal. People v. Enoch, 122 Ill.2d 176, 186 (1988); People v. Wiatr, 119
Ill. App. 3d 468, 473 (1983) (holding that the defendant waived the argument that the Village of
Lake in the Hills lacked the authority to prosecute him without showing written permission from
the current State’s Attorney because it failed to raise the issue before the trial court or in his
posttrial motion).
¶ 15 The defendant argues that a conviction obtained by a municipality without statutory
authority to prosecute is a “nullity” (i.e., void) and therefore may be attacked at any time, even if
the defendant failed to preserve the issue below. The defendant is mistaken. A trial court’s
judgement is void only if the court lacked subject matter jurisdiction to decide the general type of
case at issue or lacked personal jurisdiction over the defendant. People v. Castleberry, 2015 IL
116916; Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 344 (2002).
Other trial errors, such as the entry of a judgment in violation of statutory requirements, are
merely voidable, and may be challenged on appeal only if they are preserved before the trial
court and timely appealed. Castleberry, 2015 IL 116916, ¶ 15 (“the failure to comply with a
statutory requirement or prerequisite does not negate the circuit court’s subject matter
jurisdiction or constitute a nonwaivable condition precedent to the circuit court’s jurisdiction”);
People v. Harris, 319 Ill. App. 3d 534, 536 (holding that a sentence that was entered because of a
mistake of law or fact is merely voidable, not void, and any such error is waived if it is not
objected to below).
¶ 16 Applying these well-established principles, our appellate court has repeatedly held that an
attorney’s or a municipality’s failure to obtain the authority to prosecute a defendant does not
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present a jurisdictional defect, and that challenges to prosecutorial authority are forfeited when
not raised before the trial court. Wiatr, 119 Ill. App. 3d at 473 (holding that whether a
municipality had the authority to prosecute a defendant without showing that it had written
permission from the current State’s attorney did not “give rise to a jurisdictional prerequisite not
subject to the waiver rule”); People v. Jennings, 343 Ill. App. 3d 717, 727 (2003) (holding that
the defendant waived his right to challenge the appellate prosecutor’s authority to prosecute him
where the defendant did not object to the trial court’s recognition of the appellate prosecutor’s
authority during the trial); People v. Woodall, 343 Ill. App. 3d 1146 (where the trial court had
personal and subject matter jurisdiction, the prosecution of the defendant by State’s Attorney’s
Appellate Prosecutors who lacked the statutory authority to prosecute him did not render the
defendant’s conviction void such that it could be challenged at any time).
¶ 17 In this case, the trial court had subject matter jurisdiction to hear and decide DUI
prosecutions under the Code, and it acquired personal jurisdiction of the defendant when she
appeared before the court in this case. Thus, the trial court’s judgment was not void. The
defendant concedes that she did not challenge the Village’s violation of 16–102(c) of the Code or
its lack of prosecutorial authority during the trial or in her posttrial motions. Accordingly, she
has forfeited any such challenge.
¶ 18 The defendant relies upon several cases to support her claim that a conviction obtained by
a municipality without the written permission of the State’s Attorney is void (and therefore may
be challenged at any time). See, e.g., People v. Wagner, 89 Ill. 2d 308, 311 (1982); People v.
Moorhead, 128 Ill. App. 3d 137, 138-39 (2d Dist. 1984); People v. Herman, 2012 IL App (3d)
110420; Village of Hoffman Estates v. Spychaiski, 33 Ill. App. 3d 83 (1st Dist. 1975); People v.
Koetzle, 40 Ill. App. 3d 577 (5th Dist. 1976); People v. LaFrank, 104 Ill. App. 3d 650 (5th Dist.
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1982). However, none of these cases involved a defendant who failed to raise the issue before
the trial court. They are therefore inapposite.
¶ 19 The defendant argues in the alternative that, even if her challenge to the Village’s
prosecutorial authority is subject to forfeiture, her conviction is nevertheless reversible under the
second prong of the plain error rule. Under that prong, reversal is required notwithstanding the
defendant’s forfeiture only for errors that are deemed to be “structural,” People v. Glasper, 234
Ill.2d 173, 197 (2009). An error is structural if it renders the defendant’s trial “fundamentally
unfair or unreliable.” People v. Jackson, 2022 IL 127256, ¶ 25. Examples of such fundamental
structural errors include a complete denial of counsel, trial before a biased judge, racial
discrimination in the selection of a grand jury, denial of self-representation at trial, denial of a
public trial, a defective reasonable doubt instruction, conviction of uncharged offenses, and the
failure to swear the jury in with the trial oath. Jackson, 2022 IL 127256, ¶ 29; People v. Clark,
2016 IL 118845; People v. Moon, 2022 IL 125959. “The commonality of these errors is that
they affect the framework within which the trial proceeds, rather than mere errors in the trial
process itself.” Jackson, 2022 IL 127256, ¶ 29. To obtain reversal under the second prong of
plain error, the defendant bears the burden to show that the error caused a severe threat to the
fairness of the proceeding.” (Emphasis in original.) People v. Herron, 215 Ill. 2d 167, 187
(2005).
¶ 20 Even assuming arguendo that the trial court’s entry of judgment in this case absent proof
of the Village’s prosecutorial authority was error, it did not rise to the level of a structural error
that threatened the fairness or reliability of the trial. The defendant was represented by counsel
and had a full opportunity to challenge the charges against her. She does not allege that the trial
court or the jury was biased or that the framework in which the trial was conducted rendered the
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proceedings fundamentally unfair or unreliable. She does not claim that she was prevented from
mounting an adequate defense, putting on evidence, cross-examining the State’s witnesses, or
presenting arguments during closing. She does not claim that the jury instructions incorrectly
stated the law. She merely argues that the Village lacked the statutory authority to prosecute her.
In sum, she argues that the prosecution was brought by the wrong party, not that the proceedings
themselves were fundamentally unfair or unreliable.
¶ 21 CONCLUSION
¶ 22 For the foregoing reasons, we affirm the defendant’s conviction.
¶ 23 Affirmed.
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