People v. Tate

2016 IL App (1st) 140598
No. 1-14-0598
Opinion filed September 14, 2016
Third Division
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the
ILLINOIS, ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
) No. 11 CR 08270
v. )
) Honorable
EDMOND TATE, ) Carol A. Kipperman,
) Judge Presiding.
Defendant-Appellant. )
______________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINION

¶1 Following a bench trial, defendant Edmond Tate was convicted of aggravated robbery

and sentenced to 28 years’ imprisonment. On appeal, defendant contends that the trial court erred

in denying his pretrial motion for substitution of judge as untimely. We reverse.

¶2 We set forth the facts and procedural background of this case to the extent necessary to

resolve the issue on appeal. On August 27, 2008, a robbery occurred at a store in Forest Park. An

arrest warrant was issued for defendant on April 25, 2011, stating that he was to be brought to

the courthouse in Maywood (Fourth Municipal District). Defendant was arrested on May 1,
No. 1-14-0598

2011, and on May 2, 2011, he was charged by felony complaint with unlawful restraint and

aggravated robbery (case No. 11-4002416-01). On May 3, 2011, the half sheet indicated that

Judge Vazquez set bond and defendant demanded a trial. On May 5, 2011, the half sheet

indicated that Judge Grossi continued the matter to May 20, 2011. Nothing in the record suggests

these appearances occurred anywhere other than the courthouse in Maywood.

¶3 On May 20, 2011, defendant appeared with an assistant public defender before Judge

Grossi in a courtroom in Maywood. 1 The following colloquy occurred:

“THE COURT: Edmund [sic] Tate.

What’s the number on this?

ASSISTANT STATE’S ATTORNEY [(ASA)]: 11 CR 8270, June 9th.

ASSISTANT PUBLIC DEFENDER [(APD)]: What room is it going to?

THE COURT: All right. Mr. Tate, your case was indicted by the grand jury under

Case No. 11 CR 8270. Your next court date is in Room 107.

What date?

APD: Shouldn’t it be Room 108? Wasn’t the last one—

THE COURT: I sent this mess to 105. So there’s 20 cases, so I’m skipping 105.

APD: Can it go to 108?

THE CLERK: The last one went to 108.

THE COURT: So this one will go to 107.

APD: Well, he’s asking for the 9th.

Motion State to the 9th.

ASA: Correct.

1
Defendant did not include a transcript from this appearance in the report of proceedings. The
transcript was provided to this court in an appendix to the State’s brief.

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THE COURT: Motion State, June 9th, directly into Room 107.”

The half-sheet entry for May 20, 2011, contained the notation “SUPER 11 CR 8270 NOLLE

M/S 6/9/11 Rm 107.” An order entered on the same day stated “MSNP [motion state nolle

prosequi] SBI [superceded by indictment] 11 CR 8270.”

¶4 A true bill charging defendant with one count of aggravated robbery and two counts of

aggravated kidnapping (case No. 11 CR 8270) was dated and file-stamped on May 25, 2011.

However, the indictment return sheet, also file-stamped on May 25, 2011, listed May 19, 2011,

as the date for the true bill. The half-sheet entry for May 25, 2011, indicated the indictment had

been filed and also contained the notation “Pres. Judge Assignment Date: 6-9-11.”

¶5 On June 9, 2011, the half sheet indicated that Judge Biebel, the presiding judge of the

criminal division of the circuit court of Cook County, assigned the case to the Fourth Municipal

District (Maywood). On the same day, defendant appeared with a different public defender

before Judge Kipperman in a courtroom in Maywood. The prosecutor stated that defendant

needed to be arraigned on case No. 11 CR 8270, but defendant asked for a continuance in order

to speak with a private attorney. Judge Kipperman continued the matter to June 17, 2011, but the

half-sheet entry memorializing the continuance was crossed out and the record contains no

reference to proceedings from that day.

¶6 On July 11, 2011, a private attorney, Nathaniel Niesen, appeared for defendant before

Judge Kipperman. The following colloquy occurred:

“THE CLERK: Tate.

THE COURT: When is the earliest you can come back, counsel? We just don’t

have the time today.

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DEFENSE COUNSEL: I understand. The issue will have to be resolved. The

earliest I can come back realistically is the 18th, unless you want me to come back in the

afternoon on the 13th.

***

ASA: By agreement 7/18.

THE COURT: So it will be by agreement 7/18. Locate file. That’s all I can do.

DEFENSE COUNSEL: Absolutely. I understand, [Y]our [H]onor.”

¶7 On July 18, 2011, the court held a hearing on defendant’s motion for substitution of

judge, where defendant was represented by a private attorney, Steven Richards. At the hearing,

the following colloquy occurred:

“THE COURT: Now what date was the SOJ filed?

DEFENSE COUNSEL: The SOJ was filed, [Y]our [H]onor, June 17th. There is

an entry that I saw on the electronic docket that it was assigned to your call or assigned to

suburban on June 9th.

I think the date of June 9th was mentioned the last time as well so I think we

are—I think the true date it was assigned was June 9th, and we are within the ten days.

ASA: The 9th was the date that it was on your call, [Y]our [H]onor. That was the

day of arraignment.

The case, from what we understand, it was superceded [sic] by indictment on the

19th of May, and on the 20th before Judge Grossi it was assigned to this call.

That was the date the SOJ should have been made because—

THE COURT: It was.

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ASA: By the 10-day period being up, it would have been at the end of May or

prior to June 9th so the 10-day period had been expired as of the 9th.

THE COURT: All right. A motion for SOJ is denied on the basis of timeliness

having been assigned to this courtroom May 20th.

***

DEFENSE COUNSEL: Just to make it clear, I don’t think I have to preserve the

record, but we are objecting to the SOJ being denied so we will reserve that.”

¶8 The case proceeded to bench trial, where the evidence established that defendant entered

the store in Forest Park and claimed he had a gun. He restrained the owner, took her rings, took

some money and merchandise, and fled. Defendant’s fingerprints were recovered from the store,

and the owner identified defendant in a photo lineup, physical lineup, and at trial. The court

found defendant guilty of aggravated robbery but acquitted him of aggravated kidnapping.

Defendant’s motion for new trial was denied, and in view of his criminal record, the court

sentenced him to 28 years’ imprisonment as a Class X offender.

¶9 On appeal, defendant contends the trial court erred in denying his motion for substitution

of judge as untimely. Defendant disputes whether he could be charged with notice that his case

had been assigned on May 20, 2011, when Judge Grossi merely indicated the room number for

defendant’s next appearance. He further argues that his case could not have been assigned that

day because, per the Rules of the Circuit Court of Cook County, an indictment must be filed

before the presiding judge of the criminal division assigns the case to a judge. 2 As defendant was

2
In relevant part, the rules provide that “[a]fter *** indictment by grand jury, all parties shall
appear in the courtroom of the Presiding Judge of the Criminal Division for arraignment procedures.
Arraignment shall occur three (3) weeks after *** indictment *** except as ordered by the Presiding
Judge of the Criminal Division or except as agreed to by the parties.”). Cook Co. Cir. Ct. R. 15.1(a) (eff.
Sept. 1, 1980).

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indicted on May 25, 2011, and Judge Biebel assigned the case on June 9, 2011, defendant

submits that his motion was timely filed within 10 days, on June 17, 2011. Additionally,

defendant argues that he had the right to name two judges in his motion because he was indicted

for a Class X felony, namely aggravated kidnapping, but could not have exercised that right had

his case been assigned before indictment. Defendant acknowledges that his motion for

substitution of judge is not included in the record but contends that if the absence of the motion

is dispositive in the present appeal, this court should remand his case to the trial court for a

hearing to recreate the record under Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006).

¶ 10 The State responds that defendant failed to establish that he ever filed a motion for

substitution of judge or that the motion was legally sufficient. Even if the motion was filed, the

State argues it was untimely because Judge Grossi assigned defendant’s case to Judge

Kipperman on May 20, 2011. As defense counsel was aware of the assignment, knowledge may

be imputed to defendant irrespective of whether the assignment occurred in accordance with the

normal procedure for assigning cases under the Rules of the Circuit Court of Cook County. The

State also argues that defendant had notice of his superseding indictment based on the

proceedings from May 20, 2011, and, therefore, could have named two judges in a motion for

substitution at that time.

¶ 11 We note that a copy of the motion for substitution of judge is not included in the record

on appeal and the half sheet does not indicate when the motion was filed. However, the transcript

of the hearing on July 18, 2011, shows that neither the parties nor the court disputed that the

motion was filed on June 17, 2011. Accordingly, contrary to the State’s contention, whether

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defendant ever filed a motion for substitution of judge is not at issue on appeal. We now address

the merits of the parties’ remaining arguments.

¶ 12 As an initial matter, the State alleges that defendant forfeited review of the dismissal of

his motion for substitution of judge because he did not file a posttrial motion challenging this

issue. People v. Wade, 116 Ill. 2d 1, 9 (1987) (posttrial motion required to preserve issue of

substitution of judge). Defendant replies that the proceedings following the dismissal of his

motion for substitution of judge were void and may be challenged at any time and, alternatively,

asks us to consider his claim under the second prong of the plain-error rule. Ill. S. Ct. R. 615(a).

Before considering defendant’s arguments regarding voidness and plain error, we must first

determine whether the trial court erred in denying defendant’s motion for substitution of judge.

People v. Eppinger, 2013 IL 114121, ¶ 19 (absent an error, there can be no plain error and

defendant’s forfeiture will be honored).

¶ 13 Where, as here, the defendant challenges the construction of a statute, there is a question

of law and our standard of review is de novo. People v. Christopherson, 231 Ill. 2d 449, 454

(2008). A defendant has the absolute right to a substitution of judge upon the timely filing of a

proper written motion for substitution. 725 ILCS 5/114-5(a) (West 2010); People v. McDuffee,

187 Ill. 2d 481, 487-88 (1999). An automatic substitution of judge must be granted if the

defendant meets the following requirements: (1) the motion is made within 10 days after

defendant’s case is placed on the judge’s trial call, (2) the motion names only one judge unless

the defendant is charged with a Class X felony, in which case he may name two judges, (3) the

motion must be in writing, and (4) the motion must allege the trial judge is so prejudiced against

the defendant that the defendant cannot receive a fair trial. McDuffee, 187 Ill. 2d at 487-88.

Additionally, the motion must be made before the trial judge makes a substantive ruling in the

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case. Id. at 488. On appeal, defendant challenges only the timeliness of his motion for

substitution of judge.

¶ 14 The statutory provisions regarding motions for substitution of judge are construed

liberally, but a liberal construction of the statute does not mean that a motion will be considered

to have been timely filed in all cases. People v. Evans, 209 Ill. 2d 194, 215 (2004); People v.

Burns, 188 Ill. App. 3d 716, 721 (1989) (“Though it is well established substitution of judge

provisions are to be liberally construed, the statute cannot be construed so as to contravene its

express provisions.”). There is no statute or supreme court rule that requires that the assignment

of judges be made in a formal, written fashion. McDuffee, 187 Ill. 2d at 489. Rather, a motion for

substitution is considered 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. at 490.

This examination is case specific and depends upon the record. Evans, 209 Ill. 2d at 216.

¶ 15 In the instant case, our first inquiry is to determine the earliest date on which defendant

could be charged with knowledge of Judge Kipperman’s assignment. The State contends

defendant had notice based on the proceedings from May 20, 2011, while defendant argues he

cannot be charged with notice before June 9, 2011, when the half sheet indicated that his case

had been assigned to the Fourth Municipal District in Maywood. As the period for filing a timely

motion for substitution of judge does not depend upon an official assignment date, the half-sheet

entry from June 9, 2011, is not dispositive. McDuffee, 187 Ill. 2d at 490. Further, even if the

process for assigning defendant’s case did not adhere to the normal procedure described in the

Rules of the Circuit Court of Cook County, we nonetheless must determine whether defendant

could be charged with notice of the assignment based on the proceedings that actually occurred.

Cook Co. Cir. Ct. R. 15.1(a) (eff. Sept. 1, 1980) (“After *** indictment by grand jury, all parties

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shall appear in the courtroom of the Presiding Judge of the Criminal Division for arraignment

procedures. Arraignment shall occur three (3) weeks after *** indictment *** except as ordered

by the Presiding Judge of the Criminal Division or except as agreed to by the parties.”).

Therefore, we begin our analysis with defendant’s appearance on May 20, 2011, the first

transcribed proceeding in the record on appeal.

¶ 16 On May 20, 2011, defendant appeared with an assistant public defender before Judge

Grossi, who told defendant that his case “was indicted by the grand jury under Case No. 11 CR

8270” and that the “next court date is in Room 107.” The following colloquy then occurred:

“APD: Shouldn’t it be Room 108? Wasn’t the last one—

THE COURT: I sent this mess to 105. So there’s 20 cases, so I’m skipping 105.

APD: Can it go to 108?

THE CLERK: The last one went to 108.

THE COURT: So this one will go to 107.”

We cannot say defendant had notice that Judge Kipperman had been assigned to his case based

on this exchange, where the court mentioned the number of the courtroom for defendant’s next

appearance but not the name of the judge who presided there. Moreover, although the State asks

us to infer the public defender objected based on personal knowledge that Judge Kipperman

presided in Room 107, we do not believe the record mandates this inference. To the contrary,

logic suggests the public defender would have filed a motion for substitution of judge if his

objection was based on knowledge that Judge Kipperman sat in Room 107. Here, our inability to

charge the assistant public defender with knowledge of Judge Kipperman’s assignment precludes

us from imputing this knowledge to defendant. Cf. People v. Saunders, 135 Ill. App. 3d 594, 600

(1985) (finding notice of assignment where defense counsel mentioned trial judge by name while

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asking court to confirm schedule for arraignment). In view of the record, we cannot say that

defendant could be charged with knowledge that Judge Kipperman was assigned to his case on

May 20, 2011. Rather, the earliest date on which defendant could be charged with notice of the

assignment was June 9, 2011, when the half-sheet indicated that Judge Biebel assigned the case

to the Fourth Municipal District (Maywood). Therefore, defendant’s motion for substitution of

judge was timely filed on June 17, 2011, and the trial court erred in denying the motion as

untimely. 725 ILCS 5/114-5(a) (West 2010) (defendant must file motion for substitution of judge

“[w]ithin 10 days after a cause *** has been placed on the trial call of a judge”).

¶ 17 Having found that error occurred, we next consider whether the error rendered the

judgment of the trial court void or voidable. Relying on McDuffee, defendant urges that the

erroneous denial of his motion for substitution of judge made all subsequent action taken by the

trial court void and subject to challenge at any time. McDuffee, 187 Ill. 2d at 492 (improper

denial of motion for substitution of judge renders subsequent proceedings void). Citing a line of

cases, including People v. Hughes, 2012 IL 112817, In re Luis R., 239 Ill. 2d 295 (2010), In re

M.W., 232 Ill. 2d 408 (2009), and People v. Thompson, 209 Ill. 2d 19 (2004), the State counters

that whether a judgment is void or voidable presents a question of jurisdiction. They then assert

that because jurisdiction in this case was proper, any order entered by the circuit court, if

erroneous, was merely voidable and not void.

¶ 18 We have no quarrel with the cases cited by the State or with the propositions of law that

they espouse. In fact, we would add that during the pendency of this appeal, our supreme court

reaffirmed that certain defects in a proceeding, such as the absence of jurisdiction, are

determinative of whether a judgment is voidable or voidable. In People v. Castleberry, 2015 IL

116916, the court abolished the void sentence rule, which held that a circuit court that violates a

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particular statutory requirement when imposing a sentence acts without “inherent power,” i.e.,

without jurisdiction, thereby rendering the sentence void. Id. ¶¶ 13, 19. The supreme court

reasoned that the “inherent power” idea of jurisdiction is at odds with the grant of jurisdiction

given to the circuit courts under the Illinois Constitution. Id. ¶ 18. The court explained that the

circuit court is a court of general jurisdiction that need not look to statute for its jurisdictional

authority. Id. ¶ 19. Consequently, the court noted, only the most “fundamental defects, i.e., lack

of personal jurisdiction or lack of subject matter jurisdiction,” warrant declaring a judgment

void. Id. ¶ 15.

¶ 19 Historically, courts in Illinois have held that, upon a timely filing of a proper written

motion, a defendant has an absolute right to a substitution of judge and reversible error results if

erroneously denied. See, e.g., People v. Smith, 28 Ill. 2d 445, 447 (1963); People v. Kostos, 21

Ill. 2d 451, 454-55 (1961); People v. Dieckman, 404 Ill. 161, 164 (1949); People v. Scott, 326 Ill.

327, 341 (1927); People v. Harston, 23 Ill. App. 3d 279, 281 (1974); People v. Pace, 225 Ill.

App. 3d 415, 424-26 (1992); People v. Saltzman, 342 Ill. App. 3d 929, 932 (2003). In People v.

Walker, 119 Ill. 2d 465, 470 (1988), Justice William Clark, writing for our supreme court, noted

that “[f]or the past 114 years, Illinois law has protected the constitutional right to a fair and

impartial trial in criminal cases by providing for the substitution of a judge who is allegedly

prejudiced against a defendant.” Thus, we believe that the improper denial of a defendant’s

motion for a substitution of judge ranks among those types of “fundamental defects” most

recently contemplated by our supreme court in Castleberry.

¶ 20 We reaffirm today that when a motion for substitution of judge is improperly denied, all

subsequent action by the trial judge, beyond transfer of the matter, is void. See People v. Ryan,

264 Ill. App. 3d 1, 3 (1994); People v. Brim, 241 Ill. App. 3d 245 (1993); People v. Banks, 213

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Ill. App. 3d 205, 213 (1991); People v. Redisi, 188 Ill. App. 3d 797, 801 (1989). Accordingly, we

agree with defendant’s reliance on McDuffee and hold that any action taken by the trial court

subsequent to the erroneous denial of his motion for substitute judge is rendered null and void

and remand this cause for a new trial.

¶ 21 For the foregoing reasons, we reverse the judgment of the trial court and remand for

further proceedings.

¶ 22 Reversed and remanded with directions.

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