People v. Wilber ( 2020 )

Digitally signed
by Reporter of
Decisions
Reason: I attest
Illinois Official Reports to the accuracy
and integrity of
this document
Appellate Court Date: 2022.01.03
09:35:59 -06'00'
People v. Wilber, 2020 IL App (2d) 180024Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption PATRICK J. WILBER, Defendant-Appellant.
District & No. Second District
No. 2-18-0024
Filed June 5, 2020
Decision Under Appeal from the Circuit Court of Stephenson County, No. 16-CM-
Review 522; the Hon. James M. Hauser, Judge, presiding.
Judgment Order vacated.
Cause remanded.
Counsel on James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of State
Appeal Appellate Defender’s Office, of Elgin, and Nathaniel Lake, law
student, for appellant.
Carl H. Larson, State’s Attorney, of Freeport (Patrick Delfino, Edward
R. Psenicka, and Ivan O. Taylor Jr., of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justices McLaren and Bridges concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Patrick J. Wilber, was convicted of two counts of
harassment through electronic communication (720 ILCS 5/26.5-3(a)(5) (West 2016)). In this
direct appeal, defendant contends that the trial court did not have jurisdiction to try, convict,
or sentence him because there was an interlocutory appeal pending from its prior finding of his
unfitness. Despite defendant’s subsequent restoration to fitness, this court was not divested of
jurisdiction on the unfitness appeal, rendering defendant’s convictions void. We vacate and
remand for new proceedings.
¶2 I. BACKGROUND
¶3 On July 1, 2016, defendant was charged by information with two counts of harassment
through electronic communication, alleging that defendant threatened injury to Carol Reineke
and her family (count I) and Clarence Reineke and his family (count II). The charges stemmed
from an incident on May 30, 2016, where defendant sent several text messages to Clarence’s
phone. The messages stated in part that defendant would “kill” Clarence and his family because
Clarence stole a lawn mower air filter from him. Defendant’s text messages also provided a
rather colorful description of what he intended to do to Clarence with the stolen air filter.
¶4 On October 4, 2016, defendant’s appointed counsel filed a motion raising the issue of
defendant’s fitness. A month later, the trial court entered an order finding a bona fide doubt as
to defendant’s fitness, and a fitness hearing was subsequently held on May 2, 2017. After
hearing testimony from the State’s witness, the court granted defendant’s counsel’s motion for
a directed verdict, finding defendant unfit to stand trial. Defendant appealed that order.
¶5 Following a short stay at the Elgin Mental Health Center, defendant was found restored to
fitness on August 30, 2017. On September 22, 2017, defendant’s motion to discharge counsel
and represent himself was granted, and defendant waived his right to a jury trial.
¶6 The case proceeded to a bench trial on November 7, 2017, while his unfitness appeal was
pending. 1 Although he was provided a copy of the statute at issue and instructed to keep his
evidence and testimony limited to the charges of harassment through electronic
communication, defendant presented evidence and elicited testimony involving all manner of
things, including the court’s previous unfitness finding.
¶7 The trial court found defendant guilty of both counts. After recounting the text messages
defendant admitted sending to Clarence, the court concluded:
“Although you may not have literally meant the word kill and [Clarence] may not
have thought you meant that you were going to kill him, we have the threat to kill
1
Our opinion was filed on November 14, 2018. See People v. Wilber, 2018 IL App (2d) 170328(determining that the public-interest exception to mootness applied and affirming the trial court’s
finding of unfitness).
-2-
family members, which Carol Reineke read. We also have the threat regarding the air
filter and what you were going to do with it to [Clarence].
Based on the evidence that I have received today, I find you guilty of both of these
offenses.”
¶8 Defendant was subsequently sentenced on January 4, 2018, to one year of conditional
discharge and fined $10. Defendant timely appealed, and the state appellate defender was
appointed to represent him.
¶9 II. ANALYSIS
¶ 10 On appeal, defendant argues that the trial court did not have jurisdiction over him during
the trial and sentencing because the interlocutory appeal regarding his fitness was pending. To
support his argument, defendant relies on People v. Elsholtz, 136 Ill. App. 3d 209 (1985), and
People v. Mutesha, 2012 IL App (2d) 110059. We review de novo whether the trial court
properly exercised jurisdiction. Schlosser v. State, 2012 IL App (3d) 110115, ¶ 18.
¶ 11 Although the filing of a notice of appeal vests jurisdiction in the appellate court, trial courts
retain jurisdiction to decide matters that are independent of, and collateral to, the judgment on
appeal. Moenning v. Union Pacific R.R. Co., 2012 IL App (1st) 101866, ¶ 22. A collateral
matter includes those lying outside the issue in the appeal or arising subsequently to the
delivery of the judgment appealed from. Id. The trial of a criminal defendant is not a matter
independent of, and collateral to, an earlier finding of unfitness. Elsholtz, 136 Ill. App. 3d at
211. Even after a defendant’s restoration to fitness, the pendency of an appeal of an unfitness
finding deprives the trial court of jurisdiction to determine the defendant’s guilt. See id.¶ 12 In Elsholtz, the trial court found the defendant unfit to stand trial, and the defendant
appealed that finding. Id. at 209. While the appeal was pending, the trial court determined that
the defendant was restored to fitness, held a trial, found him guilty of motor vehicle theft, and
sentenced him to three years in prison. Id. at 209-10. In reversing the defendant’s conviction,
the appellate court reasoned that, because a defendant must be fit to be tried, a trial is not
independent of a defendant’s fitness. Id. at 211. Thus, the appellate court concluded that the
trial court lacked jurisdiction to try defendant while his unfitness appeal was pending. Id.¶ 13 We upheld the Elsholtz court’s reasoning in Mutesha, determining that posttrial motions
were also not collateral to the appeal:
“As in Elsholtz, defendant was found unfit, appealed, and was restored to fitness while
the appeal was pending. The trial court then went on to rule on posttrial motions and
sentence him. Both of those were central issues in the matter and were not collateral to
the appeal. Thus, the court lacked jurisdiction to rule on the matters and the orders are
void.” Mutesha, 2012 IL App (2d) 110059, ¶ 20.
We also rejected the State’s argument that jurisdiction should return to the trial court because
the defendant was restored to fitness, rendering the appeal moot. “[W]e have jurisdiction to
decide whether an exception to the mootness doctrine applies, so the law cannot be that the
reviewing court loses jurisdiction when a defendant is restored to fitness.” Id. ¶ 21.
¶ 14 The facts here mirror the facts in Elsholtz. Like the defendant in Elsholtz, defendant was
initially found unfit and appealed that decision. While his appeal was pending, he was restored
to fitness, tried, convicted, and sentenced. Despite recognizing that the reasoning expounded
in Elsholtz and Mutesha controls the case at hand, the State nevertheless urges us to find that
-3-
the trial court had jurisdiction to conduct the trial and find defendant guilty, based on either
the revestment doctrine or the invited-error doctrine. We decline to do so.
¶ 15 The revestment doctrine acts as an exception to the general rule that a trial court loses
jurisdiction to hear a cause at the end of the 30-day window following the entry of a final
judgment. People v. Bailey, 2014 IL 115459, ¶ 8. “Under the revestment doctrine, litigants
may revest a trial court with personal and subject matter jurisdiction, after the 30-day period
following final judgment, if they actively participate in proceedings that are inconsistent with
the merits of the prior judgment.” People v. Bannister, 236 Ill. 2d 1, 10 (2009). Here, the State
maintains that, because defendant did not object to the proceedings after he was found restored
to fitness, but rather actively participated in them by representing himself at the trial, the trial
court was revested with jurisdiction.
¶ 16 The State’s argument ignores the key element of the revestment doctrine, which is that the
inconsistent proceedings must take place more than 30 days after a final judgment. While
defendant did proceed in representing himself at trial after the May 2, 2017, unfitness order
was entered, that order was not a final order for the purposes of revesting the trial court with
jurisdiction because the cause was pending in the appellate court and thus was not a final
judgment for which all appellate review was exhausted. This court, of course, can be divested
of its jurisdiction on an unfitness appeal if an appellant chooses to dismiss his appeal before
we have made a decision on the merits, effectively exhausting appellate review. Mutesha, 2012
IL App (2d) 110059, ¶ 22. However, our research has failed to demonstrate that a party can
divest this court of jurisdiction by invoking the revestment doctrine. Rather, the revestment
doctrine is to be applied narrowly—only where the trial court loses jurisdiction over a matter
due to the passage of time after a judgment. We therefore will not expand the doctrine to apply
it to the situation at hand. See Wierzbicki v. Gleason, 388 Ill. App. 3d 921, 928-29 (2009)
(citing over 40 cases applying the revestment doctrine as described).
¶ 17 The State next contends that we should hold that the trial court had jurisdiction pursuant to
the invited-error doctrine because defendant consented to the error by willingly participating
in his trial. Under that doctrine, a party may not request to proceed in one manner at trial and
then later contend on appeal that the course of action was in error. People v. Carter, 208 Ill. 2d
309, 319 (2003).
¶ 18 Here, the State argues, defendant did everything to demonstrate that he wanted to go to
trial and allowing him to now take the position that the trial court lacked jurisdiction to convict
him would be manifestly unfair. This argument must fail also, as the lack of subject matter
jurisdiction is not subject to waiver and cannot be cured through the consent of the parties.
Bailey, 2014 IL 115459, ¶ 14. Thus, despite defendant’s consent to, and participation in, his
trial, the trial court did not have jurisdiction to proceed with the trial, and his convictions are
void. See People v. Flowers, 208 Ill. 2d 291, 306 (2003) (“A ruling made by a circuit court in
the absence of subject matter jurisdiction is void.”).
¶ 19 Finally, the State requests that we remand the matter for a hearing on whether defendant
abandoned his appeal, noting that the appeal was moot, as he was restored to fitness and
willingly participated in his trial. Because we have the authority to determine if an exception
to mootness applies (Mutesha, 2012 IL App (2d) 110059, ¶ 21), and did so before in this case
(People v. Wilber, 2018 IL App (2d) 170328, ¶ 9), we decline the State’s request. As an aside,
we note that the report of proceedings belies the State’s request, as defendant repeated no less
than three times during his trial that he had an appeal pending regarding the unfitness
-4-
determination and he sought to introduce evidence to contradict that finding. This conduct
demonstrates that he had not abandoned his appeal. Therefore, we deny the State’s request and
instead grant defendant’s request and remand the cause for further proceedings. See Elsholtz,
136 Ill. App. 3d at 211 (remanding the cause for new proceedings).
¶ 20 III. CONCLUSION
¶ 21 Under Elsholtz’s reasoning, the trial court lacked jurisdiction to try, convict, and sentence
defendant. The defendant’s convictions of harassment through electronic communication were
therefore void. We vacate the order and remand the cause for further proceedings consistent
with this order.
¶ 22 Order vacated.
¶ 23 Cause remanded.
-5-