City of Naperville v. Luciano ( 2020 )


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    Appellate Court                            Date: 2022.01.04
    11:01:48 -06'00'
    City of Naperville v. Luciano, 
    2020 IL App (2d) 190847
    Appellate Court          THE CITY OF NAPERVILLE, Plaintiff-Appellee, v. DAVID M.
    Caption                  LUCIANO, Defendant-Appellant.
    District & No.           Second District
    No. 2-19-0847
    Filed                    December 10, 2020
    Decision Under           Appeal from the Circuit Court of Du Page County, No. 19-TR-41988;
    Review                   the Hon. Kenton J. Skarin, Judge, presiding.
    Judgment                 Reversed and remanded.
    Counsel on               David M. Luciano, of Naperville, appellant pro se.
    Appeal
    Joseph Solon and Christopher Holland, of Naperville, for appellee.
    Panel                    JUSTICE SCHOSTOK delivered the judgment of the court, with
    opinion.
    Justices Hutchinson and Jorgensen concurred in the judgment and
    opinion.
    OPINION
    ¶1        On May 17, 2019, defendant, David M. Luciano, was ticketed for disobeying a police
    officer in violation of a City of Naperville (City) ordinance. Following a bench trial, he was
    found guilty of that offense. Defendant appeals, pro se, from his conviction, arguing that the
    trial court erred in denying his motions for substitution of judge and for a continuance of trial.
    We reverse and remand.
    ¶2                                        I. BACKGROUND
    ¶3       The ticket issued on May 17, 2019, summoned defendant to appear at the Du Page County
    Judicial Center, in courtroom 1001, on June 19, 2019, but did not name the judge before whom
    defendant would appear. Defendant appeared on that date before Judge Kenton J. Skarin. The
    record contains a pro se motion for 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 2018)) accompanied
    by a certificate of service indicating that it was mailed to Naperville’s city prosecutor on June
    27, 2019. The motion, which stated that Judge Skarin was “so prejudiced against [defendant]
    that he cannot receive a fair trial,” was electronically filed with the court on July 2, 2019.
    Defendant electronically filed the same motion again on July 8, 2019.
    ¶4       Judge Skarin heard and denied the motion, issuing a written order setting forth two
    independent reasons for the ruling. First, Judge Skarin ruled that the motion was untimely
    because it was not filed within 10 days of the case being placed on his trial call, as section 114-
    5(a) requires. He concluded that, upon ticketing, defendant was charged with knowledge that
    the case had been assigned to Judge Skarin. Judge Skarin reasoned that he had been assigned
    to courtroom 1001 by administrative order and that the courtroom assignments and the
    administrative order itself were publicly available. Therefore, because the ticket issued to
    defendant summoned him to Judge Skarin’s courtroom, defendant was on notice that Judge
    Skarin would preside over his trial. Judge Skarin concluded that defendant’s motion, which
    was filed more than 10 days after the ticket was issued, was untimely.
    ¶5       Second, Judge Skarin reasoned that the motion, which was file-stamped July 2, 2019,
    would be untimely even if defendant’s first notice that Judge Skarin had been assigned to the
    case came when he appeared before Judge Skarin on June 19. Judge Skarin noted that
    defendant claimed to have mailed the motion within the 10-day period. Based on a faulty
    premise—that defendant had not filed a certificate of service—Judge Skarin concluded that
    the motion’s filing date did not relate back to the mailing date.
    ¶6       The case was set for trial on September 25, 2019. Defendant moved for a continuance and
    clarification of the order denying the motion for substitution of judge. Judge Skarin entered an
    order acknowledging his error regarding the certificate of service. However, he reaffirmed his
    ruling that the 10 days for filing the motion for substitution of judge began to run when
    defendant received the ticket. Judge Skarin denied defendant’s motion for a continuance. As
    noted, defendant was found guilty of disobeying a police officer, and this appeal followed.
    ¶7                                        II. ANALYSIS
    ¶8      Defendant argues that the 10-day period for filing a motion for substitution of judge should
    begin to run when a defendant files an appearance or appears in court the first time. The City
    -2-
    maintains that Judge Skarin correctly concluded that the 10-day period for filing a motion for
    substitution of judge started to run when defendant received a ticket summoning him to Judge
    Skarin’s courtroom.
    ¶9         Section 114-5(a) of the Code (id.) provides, in pertinent part, as follows:
    “Within 10 days after a cause involving only one defendant has been placed on the trial
    call of a judge the defendant may move the court in writing for a substitution of that
    judge on the ground that such judge is so prejudiced against him that he cannot receive
    a fair trial. Upon the filing of such a motion the court shall proceed no further in the
    cause but shall transfer it to another judge not named in the motion.”
    ¶ 10       In People v. McDuffee, 
    187 Ill. 2d 481
    , 490 (1999), our supreme court observed that “[i]n
    part because there is no uniform, statewide requirement that judicial assignments be formally
    executed, the appellate court has developed a test for calculating the 10-day period set forth in
    section 114-5(a) which does not depend upon the existence of an official assignment date.”
    The McDuffee court explained that “[f]or at least 30 years, the appellate court has held *** that
    a motion for substitution is timely filed if it is brought within 10 days of the date the defendant
    could be ‘charged with knowledge’ that the judge at issue had been assigned to his case.” 
    Id.
    The McDuffee court cited a number of those appellate court cases. Although they illustrate the
    operation of the “charged with knowledge” rule, the fact patterns in those cases, for the most
    part, bear little resemblance to the fact pattern here. However, one of the cases that McDuffee
    cited—People v. Gunning, 
    108 Ill. App. 3d 429
     (1982)—is instructive. In Gunning, the court
    held that, although the allegedly prejudiced judge was the traffic judge for the county and
    traffic cases were automatically assigned to him, “[d]efendant did not know, and could not
    know, *** that in fact [the judge in question] was assigned to his specific case” (id. at 432)
    until the entry of an order setting the case for trial. Relying on People v. Samples, 
    107 Ill. App. 3d 523
     (1982), the Gunning court reasoned as follows:
    “In Samples the defendant appeared first before Judge Lewis; later he appeared before
    Judge Howerton, who entered up preliminary orders on December 30, 1980, including
    one for a pre-trial hearing on March 25, 1981, and for jury trial on April 1, 1981.
    Defendant filed a motion for substitution from Judge Lewis on February 25, 1981. At
    the hearing on that motion Judge Lewis stated that he was the only judge who heard
    criminal cases in Williamson County and therefore defendant was charged with
    knowledge when the trial allotment was made that he, Judge Lewis, would hear the
    case; therefore, the motion was too late.
    The appellate court held that this ruling was error, saying:
    ‘We do not think that the prevailing practice in the circuit court of Williamson
    County described by Judge Lewis, in which a certain judge hears all the criminal
    cases unless he is ill or otherwise unable to do so, amounts to a placement of the
    cause on the trial call of a judge so as to commence the running of the 10-day period
    in which a defendant may move for automatic substitution of a judge for prejudice.’
    [Citation.]
    The court also stated that any such system would render a defendant’s right to
    substitution under section 114-5(a) ‘disappointingly hollow.’ ” Gunning, 
    108 Ill. App. 3d at 431-32
     (quoting Samples, 
    107 Ill. App. 3d at 527
    ).
    -3-
    ¶ 11       In McDuffee, as in Gunning, the allegedly prejudiced judge was the only judge in the
    county hearing traffic cases. The State conceded that this fact did not put the defendant on
    notice that the judge in question would preside over the defendant’s trial. Because of that
    concession, the McDuffee court was not required to reach the issue. Nonetheless, the court’s
    citation of Gunning, if only as support for a point conceded by the State, appears to reflect tacit
    approval of Gunning’s reasoning. If, as in Gunning and Samples, a defendant is not charged
    with knowledge that his or her case has been assigned to the only judge in the county hearing
    traffic cases, we cannot see how a defendant could be charged with knowledge that his case
    will be heard by a judge who has been assigned to a particular courtroom.
    ¶ 12       The City cites this court’s decision in People v. Schneider, 
    375 Ill. App. 3d 734
    , 749 (2007),
    in support of its argument that, by virtue of the publicly available administrative order
    assigning Judge Skarin to courtroom 1001, defendant was charged with notice that the case
    was placed on Judge Skarin’s trial call when the ticket was issued to defendant summoning
    him to appear in that courtroom.
    ¶ 13       The City’s reliance on Schneider is misplaced. We note that in Schneider, it was the State
    rather than the defendant that moved for substitution of judge. However, like section 114-5(a),
    the applicable statute required the State’s motion to be filed within 10 days after the case was
    put on a judge’s trial call. The defendant argued on appeal that the State’s motion was untimely
    and that the trial court therefore erred by granting it. In rejecting the defendant’s argument, we
    stated that “we need not rely on the ‘charged with knowledge’ test to determine when
    defendant’s case had been placed on the trial call of a judge, because Winnebago County’s
    criminal division has a formal procedure for assigning judges.” 
    Id.
     Under the procedure in
    Winnebago County, felony prosecutions were assigned to trial judges in rotation when an
    indictment or information was filed. The indictment in Schneider was filed on May 21, 2003,
    and the parties appeared before Judge Steven Vecchio on May 23, 2003, at which time they
    acknowledged that the case had been assigned to him. The State filed a motion for substitution
    of judge on May 27, 2003, and an amended motion for substitution of judge on May 30, 2003.
    We held that the motions were timely, reasoning as follows:
    “Because the indictment against defendant was not filed until May 21, 2003, that is
    the earliest that the case could have been assigned to a judge for trial under the local
    court rules in effect when these events took place. [Citations.] The latest that the case
    could be considered assigned to a judge for trial is May 23, 2003, when the parties
    appeared before the court and agreed that Judge Vecchio had been assigned to the case.
    Under either scenario, the State’s substitution motion was timely. The State’s original
    substitution motion was filed on May 27, 2003, and its amended motion was filed on
    May 30, 2003. Both of these motions were therefore filed within 10 days after the cause
    could have been considered to be placed on the trial call of Judge Vecchio.” 
    Id.
     at 750-
    51.
    ¶ 14       In Schneider, we simply had no occasion to pinpoint when the State was charged with
    knowledge of Judge Vecchio’s assignment to the case. It was sufficient to observe that,
    regardless of when the State was charged with such knowledge—as of the filing of the
    indictment or as of the first appearance before the judge—the 10-day period could not have
    expired before the motion was filed. Our holding in Schneider—that the motion was timely in
    those circumstances—does not imply that it would have been untimely had it been filed later.
    -4-
    ¶ 15       The case law supports defendant’s position that he could not be charged with knowing that
    his case was assigned to Judge Skarin prior to his appearance before Judge Skarin on June 19,
    2019. Because defendant’s motion for substitution of judge was filed within 10 days of that
    appearance, Judge Skarin should have granted defendant’s motion for substitution of judge.
    We must therefore remand for a new trial before a different judge. In light of that conclusion,
    we need not consider whether the trial court erred by denying defendant’s motion for a
    continuance.
    ¶ 16                                      III. CONCLUSION
    ¶ 17      For the foregoing reasons, we reverse the judgment of the circuit court of Du Page County
    and remand for a new trial before a judge other than Judge Kenton J. Skarin.
    ¶ 18      Reversed and remanded.
    -5-
    

Document Info

Docket Number: 2-19-0847

Filed Date: 12/10/2020

Precedential Status: Precedential

Modified Date: 7/30/2024