People v. Lundberg , 2021 IL App (3d) 190577-U ( 2021 )

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).
2021 IL App (3d) 190577-UOrder filed July 16, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) Grundy County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0577
v. ) Circuit No. 19-CM-14
)
STEVEN C. LUNDBERG, ) Honorable
) Sheldon R. Sobol,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE WRIGHT delivered the judgment of the court.
Justices Lytton and Schmidt concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not commit reversible plain error in failing to question the
potential jurors in accordance with Rule 431(b). The circuit court erred by failing
to set a restitution amount and payment timeframe during sentencing.
¶2 Defendant, Steven C. Lundberg, appeals his conviction for criminal damage to property.
Defendant argues the Grundy County circuit court: (1) committed reversible error by failing to
ask the potential jurors whether they understood and accepted the principles stated in Illinois
Supreme Court Rule 431(b) (eff. July 1, 2012), and (2) erred by failing to specify a restitution
amount or payment timeframe at sentencing. We affirm in part, reverse in part, and remand for
further proceedings.
¶3 I. BACKGROUND
¶4 The State charged defendant by information with criminal damage to property (720 ILCS
5/21-1(a)(1) (West 2018)). The charge alleged that defendant “knowingly damaged property of
Cecilia Wagner, being a vehicle’s soft top cover, *** said damage not being in excess of $500.”
¶5 During voir dire, the circuit court asked the potential jurors to raise their hands to indicate
an affirmative response to the court’s questions. The court asked whether the potential jurors
“disagree[d] with” or “ha[d] any disagreement with the following proposition[s],” and then
recited the legal principles contained in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012).
The court noted on the record that the potential jurors did not raise their hands to indicate to the
court that any juror disagreed with any of the Rule 431(b) principles recited by the court.
¶6 At the subsequent jury trial, Ian Gillen testified that on January 9, 2019, he resided in the
same household with his mother, Cecilia Wagner, and stepfather, Brett Wagner. On that date, as
Gillen drove his mother’s vehicle to work, he noticed the soft cover to his mother’s vehicle had
been damaged.
¶7 Cecilia testified that on the morning of January 9, 2019, Gillen told her that someone had
“slashed up” her vehicle. Cecilia went outside and observed several holes cut through the soft
cover on her vehicle. The Wagner’s residence was equipped with multiple security cameras, one
of which pointed at the driveway where Cecilia’s vehicle was parked. Cecilia testified that after
viewing the surveillance footage from her security cameras, she informed law enforcement that
she believed her neighbor, defendant, was the person in the footage, saying “I thought it was my
neighbor, [defendant], because of the way he walk[ed].” Cecilia stated that she was “used to
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[defendant], what he looked like.” On cross-examination, Cecilia admitted that during the last
year, the relationship between Cecilia and defendant had been problematic.
¶8 Following Cecilia’s testimony, the State entered the surveillance footage into evidence
and played the video recording for the jury. The footage depicted an individual approach the
driveway from the left side of the screen while carrying an object in their hand. The individual’s
face was not visible as the person approached the driver’s side of Cecilia’s vehicle and cut a hole
in the soft top of the vehicle. Next, the video depicted the same individual moving to the back of
the vehicle and slashing additional holes in each side of the soft top cover of Cecilia’s vehicle.
The individual enlarged the holes in the soft top with his or her hands. Thereafter, the individual
retraced his or her steps and disappeared from the driveway after walking out of sight on the left
side of the screen.
¶9 Cecilia’s son, Gillen, also reviewed the surveillance footage and informed the jury that he
observed a “man that appeared to look like [defendant] had a shirt or something wrapped around
his face and went right back in the direction of his house.” Gillen testified that, later in the day
after noticing the damage to Cecilia’s vehicle, he witnessed defendant riding a bicycle past his
mother’s residence. As defendant rode past his mother’s damaged vehicle, defendant spat on the
vehicle and stated, “[W]hat’s done is done.” Gillen followed defendant and punched him in the
face. According to Gillen, “[t]hings were building up. I knew who had done this. ***
[Defendant] was wearing the same clothes in the video as when I saw the next day [sic]. I just
lost my cool ***.”
¶ 10 Cecilia’s husband, Brett, also testified that he viewed the surveillance footage. During his
testimony, Brett stated that he observed “a person walk up the driveway covering their face,
[who] also had a weapon in the other hand. First [they] went to the driver’s side, slashed that.
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Went to the back, slashed that. Went to the passenger side, slashed that. Exited the driveway and
went back to the left.” Brett said that defendant was their next-door neighbor to the left side.
According to Brett, his family’s relationship with defendant was “[t]oxic,” though the court
prevented Brett from providing further details.
¶ 11 Officer Kiedra Meece of the Minooka Police Department testified that she spoke with
Gillen about the damage to the soft cover of Cecilia’s vehicle. Meece also viewed the
surveillance footage and informed the jury that the video depicted a person approach the
driveway from the north and walk around the sides and rear of the vehicle, stopping to cut holes
in the vehicle’s soft cover and using both hands to expand those holes.
¶ 12 Later that day, Meece responded to a call two blocks away from the Wagner’s residence.
When she arrived at the location, a hardware store, she observed defendant was present and was
bleeding from his head. As Meece spoke with defendant, she noticed that defendant appeared to
be wearing the same clothing as the person captured in the surveillance footage damaging
Cecilia’s vehicle. Meece placed defendant under arrest, collected and photographed defendant’s
clothing, and photographed the holes in the damaged soft cover. Meece’s photographs were
admitted as prosecution exhibits.
¶ 13 Defendant testified on his own behalf. First, defendant denied that he was the person
depicted in the surveillance footage. Defendant testified that, on January 9, 2019, he was riding
his bicycle when Gillen approached him and struck him in the face. Defendant denied spitting at
Gillen and saying, “[W]hat’s done is done.” Defendant also denied walking past the Wagner’s
house or speaking with Gillen, as a court order forbid him from having any contact with Gillen,
Cecilia, or Brett. Defendant asserted that, at the time in question, he was disappointed because he
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loaned Gillen money, but Gillen refused to repay him. According to defendant, Gillen said,
“[Y]ou’re not getting a dime back, you’re not getting a penny back.”
¶ 14 The jury found defendant guilty of the charged offense. Defendant filed a motion for a
new trial and judgment notwithstanding the verdict.
¶ 15 At a hearing on July 23, 2019, the parties presented an agreed upon sentence of 24
months’ conditional discharge to the court. The court noted that the agreement failed to include a
restitution amount or payment plan. On this basis, the court refused to “approve that sentence
without restitution.” At the subsequent hearing, on August 20, 2019, the State informed the court
that the Wagners had not yet provided a definitive damages amount, so they could not establish
the proper restitution amount. The court sentenced defendant to 24 months’ conditional
discharge and reserved the restitution amount and payment timeframe until the next court date,
November 1, 2019.
¶ 16 The court denied defendant’s motion for a new trial and judgment notwithstanding the
verdict. Defendant filed his notice of appeal before a restitution amount had been determined by
the circuit court.
¶ 17 II. ANALYSIS
¶ 18 A. Rule 431(b)
¶ 19 Defendant argues that he is entitled to a new trial because the circuit court failed to
comply with Rule 431(b) when selecting a jury. Defendant acknowledges he failed to preserve
this issue for appellate review by objecting during voir dire. Defendant also admits that he did
not include this issue in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Defendant contends that the Rule 431(b) error qualifies as plain error because the evidence in
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this case was closely balanced. The State concedes that the court erred but argues the evidence
was not closely balanced.
¶ 20 The plain error doctrine permits us to consider a forfeited error where the evidence was
“so closely balanced that the jury’s guilty verdict may have resulted from the error and not the
evidence” or where the error was “so serious that the defendant was denied a substantial right,
and thus a fair trial.” People v. Herron, 215 Ill. 2d 167, 178-79 (2005). “A Rule 431(b) violation
is not cognizable under the second prong of the plain error doctrine, absent evidence that the
violation produced a biased jury.” People v. Sebby, 2017 IL 119445, ¶ 52. “The first step of
plain-error review is determining whether any error occurred.” People v. Thompson, 238 Ill. 2d
598, 613 (2010).
¶ 21 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) mandates the following:
“The court shall ask each potential juror, individually or in a group,
whether that juror understands and accepts the following principles: (1) that the
defendant is presumed innocent of the charge(s) against him or her; (2) that before
a defendant can be convicted the State must prove the defendant guilty beyond a
reasonable doubt; (3) that the defendant is not required to offer any evidence on
his or her own behalf; and (4) that if a defendant does not testify it cannot be held
against him or her; however, no inquiry of a prospective juror shall be made into
the defendant’s decision not to testify when the defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to
respond to specific questions concerning the principles set out in this section.”
¶ 22 Rule 431(b) requires a circuit court to ask potential jurors “whether they understand and
accept the enumerated principles.” (Emphasis in original.) People v. Wilmington, 2013 IL
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112938, ¶ 32; see Ill. S. Ct. R. 431(b) (eff. July 1, 2012). Where, as here, a court merely asks
whether the potential jurors disagree with the legal principles, it fails to comply with Rule
431(b). See Wilmington, 2013 IL 112938, ¶ 32 (“While it may be arguable that the court’s asking
for disagreement, and getting none, is equivalent to acceptance of the principles, the trial court’s
failure to ask jurors if they understood the four Rule 431(b) principles is error in and of itself.”
(Emphasis in original.)). Thus, we accept the State’s concession, as the court did not ask whether
the potential jurors understood and accepted the four Rule 431(b) principles.
¶ 23 However, the circuit court’s failure to satisfy Rule 431(b) was not called to the attention
of the circuit court by defendant and has been forfeited for purposes of this appeal. After
carefully reviewing the record, we conclude defendant’s forfeiture is not excused based on plain
error because the evidence contained in this record was not closely balanced. When reviewing a
claim under the first prong of the plain error doctrine, “a reviewing court must undertake a
commonsense analysis of all the evidence in context.” People v. Belknap, 2014 IL 117094, ¶ 50.
¶ 24 In this case, the jury was able to observe a person committing the crime as depicted in the
surveillance video. After viewing the same footage, three State witnesses testified that they
believed defendant to be the person captured on video slashing the soft cover of the vehicle.
Meece testified that when she confronted defendant later on the date of the incident, the clothing
worn by defendant at that time matched the clothing Meece observed being worn by the person
in the surveillance footage published to the jury. The jury could easily have drawn the same
conclusion after reviewing the State’s video exhibit.
¶ 25 Similarly, Gillen testified that when Gillen encountered defendant on the same date,
Gillen opined that defendant was wearing the same clothing as the person depicted in the
footage. Further, Gillen testified that he witnessed defendant spit at the vehicle, later in the day,
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just before he heard defendant state, “[W]hat’s done is done.” It was within the province of this
jury to decide whether defendant’s statement, as described by Gillen, should be treated as a
spontaneous and incriminating admission by defendant. Although defendant denied this
incriminating statement occurred and denied that he was the individual slashing the soft top of
the vehicle in the surveillance footage, the evidence linking defendant to the criminal damage to
property far outweighed defendant’s version of the events. Therefore, we conclude that plain
error does not excuse defendant’s forfeiture of the purported judicial error during voir dire since
the prosecution’s evidence was not closely balanced.
¶ 26 B. Restitution
¶ 27 Finally, defendant argues the circuit court erroneously failed to properly assess a finite
amount of restitution. The State concedes error but argues the proper remedy requires this court
to remand the matter to the circuit court rather than deleting the language referring to restitution
in the sentencing order. The state’s concession of error is supported by section 5-5-6 of the
Unified Code of Corrections (Code), requiring a circuit court to determine at the time of
sentencing “whether the defendant should be required to make restitution in cash, for out-of-
pocket expenses, damages, losses, or injuries found to have been proximately caused by the
conduct of the defendant.” 730 ILCS 5/5-5-6(a) (West 2018). Additionally, the statute provides
that the court “shall determine whether restitution shall be paid in a single payment or in
installments, and shall fix a period of time not in excess of 5 years *** within which payment of
restitution is to be paid in full.” Id. § 5-5-6(f). Other courts have held that “ ‘If the court does not
specify a particular time [for the payment of restitution], the restitution order is fatally
incomplete.’ ” People v. Hibbler, 2019 IL App (4th) 160897, ¶ 82 (quoting In re Estate of Yucis,
382 Ill. App. 3d 1062, 1067 (2008)).
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¶ 28 We decline defendant’s invitation for this court to delete the possibility of restitution
from the sentencing order because faced with a similar sentencing error, other courts have
remanded the matter for statutory compliance. See Hibbler, 2019 IL App (4th) 160897, ¶ 83; see
also People v. Stinson, 200 Ill. App. 3d 223, 225 (1990) (holding that vacatur of an incomplete
restitution order and remand for statutory compliance “is the better practice” than reversal
without remand). Illinois Supreme Court Rule 472(a) (eff. May 17, 2019) governs the correction
of certain sentencing errors.
¶ 29 In addition, while restitution does not qualify as a fine, fee, assessment, or cost subject to
the requirements of Rule 472 (People v. Copeland, 2020 IL App (2d) 180423, ¶¶ 15-17), we
consider that rule to provide some guidance on the best remedy for the circuit court’s error.
Therefore, we remand the matter to the circuit court to address, on the record, whether or not the
defendant has the ability to pay restitution, to determine whether restitution is appropriate, and if
so, to fix the amount of restitution and order the conditions for the payment of restitution
pursuant to section 5-5-6 of the Code.
¶ 30 III. CONCLUSION
¶ 31 The judgment of the circuit court of Grundy County is affirmed in part, reversed in part,
and remanded for further proceedings.
¶ 32 Affirmed in part, reversed in part.
¶ 33 Cause remanded.
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