NOTICE
This Order was filed under 2021 IL App (4th) 210116-U FILED
Supreme Court Rule 23 and is December 28, 2021
not precedent except in the NO. 4-21-0116 Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Schuyler County
KENIN L. EDWARDS, ) No. 16CV9
Defendant-Appellant. )
) Honorable
) Michael L. Atterberry,
) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justice DeArmond and Justice Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed, concluding the information, challenged prior to trial,
failed to strictly comply with section 111-3(a) of the Code of Criminal Procedure
of 1963 (725 ILCS 5/111-3(a) (West 2016)).
¶2 Following a jury trial, defendant, Kenin L. Edwards, was convicted of two Class A
misdemeanors for his purported violations of an administrative rule promulgated under the Timber
Buyers Licensing Act (Act) (225 ILCS 735/1 et seq. (West 2016)). Defendant appeals, challenging
the (1) circuit court’s subject-matter jurisdiction, (2) sufficiency of the charging instrument,
(3) timeliness of the charges, (4) sufficiency of the evidence, and (5) jury instructions. Because we
find the information, challenged prior to trial, failed to strictly comply with section 111-3(a) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(a) (West 2016)), we reverse the
circuit court’s judgment.
¶3 I. BACKGROUND
¶4 The State charged defendant by information with two Class A misdemeanors based
upon his purported violations of an administrative rule promulgated under the Act. In response,
defendant filed several pretrial motions that, relevant here, sought dismissal based upon a lack of
subject-matter jurisdiction and an insufficiency of the information. The circuit court rejected
defendant’s claim that it lacked subject-matter jurisdiction. The court also, after twice allowing the
State to amend the information, rejected defendant’s claim that the information was insufficient.
¶5 Ultimately, count I of the information charged defendant with:
“the offense of UNLAWFULLY ACTING AS A TIMBER
BUYING AGENT FOR MULTIPLE LICENSED TIMBER
BUYERS, in violation of SECTION 10 of ACT 735 of CHAPTER
225 of the Illinois Compiled Statutes of said State and
Administrative Rule SECTION 1535.1(b) of PART 1535 of
SUB-CHAPTER d of CHPATER [sic] I of TITLE 17, pursuant to
SECTION 1535.60(a) of PART 1535 of SUB-CHAPTER d of
CHAPTER I of TITLE 17, in that the said defendant knowingly
acted as an authorized agent for multiple licensed timber buyers,
being listed as an agent for timber buyer Trent Copelen and acted as
agent for timber buyer Jonathan Luckett and represented himself as
a timber buyer when attempting to enter into an agreement with
Donald Cook.
Class A Misdemeanor.”
Count II of the information, in turn, charged defendant with:
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“the offense of UNLAWFULLY ACTING AS A TIMBER
BUYING AGENT FOR MULTIPLE LICENSED TIMBER
BUYERS, in violation of SECTION 10 of ACT 735 of CHAPTER
225 of the Illinois Compiled Statutes of said State and
Administrative Rule SECTION 1535.1(b) of PART 1535 of
SUB-CHAPTER d of CHPATER [sic] I of TITLE 17, pursuant to
SECTION 1535.60(a) of PART 1535 of SUB-CHAPTER d of
CHAPTER I of TITLE 17, in that the said defendant
knowingly acted as an authorized agent for multiple licensed timber
buyers, being listed as an agent for timber buyer Trent Copelen and
acted as an agent for timber buyer Jonathan Luckett in selling timber
to Leroy Yoder of Plainview Pallet, Tom Farris of Farris Forest
Products, John Peters of River City Hardwood, Inc., Norman
Hochstetler of Oak Ridge Lumber, LLC, and Michael Eichen of
Eichen Lumber Company, Inc.
Class A Misdemeanor.”
¶6 After the jury returned guilty verdicts, defendant filed a posttrial motion that,
relevant here, sought entry of a judgment notwithstanding the verdict, a new trial, or an arrest of
judgment based upon a lack of subject-matter jurisdiction and an insufficiency of the information.
Prior to receiving a ruling on his posttrial motion, defendant filed with the supreme court a motion
for supervisory order and for leave to file a petition for writ of prohibition. The supreme court
denied the motion for supervisory order but allowed leave to file a petition for writ of prohibition.
Following briefing, the supreme court issued a decision denying the writ. Edwards v. Atterberry,
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2019 IL 123370, ¶ 27, 131 N.E.3d 500. The court’s majority concluded the writ was not warranted
as defendant failed to establish the normal appellate process would not afford an adequate remedy
or would cause him irremediable harm. Id. ¶¶ 6-26. Justice Kilbride, joined by Justices Burke and
Neville, dissented, believing defendant was entitled to relief to remedy a “clear injustice,” that
injustice being the fact defendant was convicted of regulatory offenses which do not exist based
upon charged conduct not criminalized by the regulations cited in the information. Id. ¶¶ 28-43.
¶7 The circuit court, following the supreme court’s resolution and its receipt of another
posttrial motion from defendant, denied all pending posttrial motions. Defendant filed a motion to
reconsider the rulings on his posttrial motions, which the court denied. The court sentenced
defendant to two concurrently-imposed terms of one-year court supervision and two $100 fines.
Defendant filed postsentencing motions, which the court denied.
¶8 This appeal followed.
¶9 II. ANALYSIS
¶ 10 At the outset, we must address defendant’s challenge to the circuit court’s
subject-matter jurisdiction. Defendant contends, because the State did not cite to a statute
criminalizing his purported violations of an administrative rule in the information, the circuit court
lacked subject-matter jurisdiction. The State disagrees, asserting its failure to cite the applicable
statute is not a jurisdictional defect. The issue of whether a circuit court had subject-matter
jurisdiction presents a question of law, which we review de novo. McCormick v. Robertson, 2015
IL 118230, ¶ 18, 28 N.E.3d 795.
¶ 11 “Subject matter jurisdiction refers to a court’s power to hear and determine cases
of the general class to which the proceeding in question belongs.” (Internal quotation marks
omitted.) People v. Castleberry, 2015 IL 116916, ¶ 12, 43 N.E.3d 932. Except for the power to
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review administrative action, the circuit courts subject-matter jurisdiction “is conferred entirely by
our state constitution.” (Internal quotation marks omitted.) In re Luis R., 239 Ill. 2d 295, 300, 941
N.E.2d 136, 140 (2010). Our constitution provides the jurisdiction of the circuit courts extends to
“all justiciable matters except when the Supreme Court has original and exclusive jurisdiction***.”
Ill. Const. 1970, art. VI, § 9. Accordingly, “[t]o invoke the circuit courts subject[-]matter
jurisdiction, a party need only present a justiciable matter, i.e., a controversy appropriate for
review by the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching
upon the legal relations of parties having adverse legal interests.” (Internal quotation marks
omitted.) LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 35, 32 N.E.3d 553.
¶ 12 In this case, defendant’s contention that the circuit court lacked subject-matter
jurisdiction focuses on the State’s failure to cite to a statute in the information criminalizing his
purported violations of an administrative rule. That is, defendant does not dispute the existence of
a statute which makes a violation of an administrative rule promulgated under the Act a Class A
misdemeanor (225 ILCS 735/11(a) (West 2016)) but rather asserts the State’s failure to cite that
statute in the information prevented the court from obtaining subject-matter jurisdiction. The
supreme court has made clear, however, “jurisdiction is not conferred by information” and,
therefore, a defect in an information “does not deprive the circuit court of jurisdiction.” People v.
Benitez, 169 Ill. 2d 245, 256, 661 N.E.2d 344, 350 (1996). Thus, the State’s failure to cite to a
statute in the information criminalizing defendant’s purported violations did not preclude the
circuit court from obtaining subject-matter jurisdiction. Defendant has not presented any other
argument to support his contention that the circuit court lacked subject-matter jurisdiction.
¶ 13 We turn next to defendant’s challenge to the sufficiency of the charging instrument.
Defendant contends, because the State did not cite to the statute criminalizing his purported
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violations of an administrative rule in the information and because he raised the issue prior to trial,
the information failed to strictly comply with the statutory pleading requirements and reversal is
required. The State disagrees, asserting the information “sufficiently alerted defendant that he was
accused of criminally violating the [Act] and the administrative regulations created pursuant to the
[Act],” or, alternatively, its failure to cite the applicable penalty statute did not require reversal as
it did not result in any prejudice. The issue of whether a charging instrument was legally sufficient
presents a question of law, which we review de novo. People v. Carey, 2018 IL 121371, ¶ 19, 104
N.E.3d 1150.
¶ 14 “A criminal defendant has a fundamental right to be informed of the nature and
cause of criminal accusations made against him.” Id. ¶ 20; see U.S. Const., amend. VI; Ill. Const.
1970, art. I, § 8. In Illinois, this right is implemented by section 111-3 of the Code (725 ILCS
5/111-3 (West 2016)), which sets forth specific pleading requirements for a criminal charge.
Carey, 2018 IL 121371, ¶ 20. In relevant part, section 111-3(a) requires any criminal charge to
(1) “[state] the name of the offense,” (2) “[cite] the statutory provision alleged to have been
violated,” and (3) “[set] forth the nature and elements of the offense charged.” 725 ILCS
5/111-3(a)(1) to (a)(3) (West 2016). Where, as here, a charging instrument is challenged in a
pretrial motion, “the charging instrument must strictly comply with the requirements in section
111-3(a).” Carey, 2018 IL 121371, ¶ 21. If the charging instrument does not, the proper remedy is
“a dismissal of the charging instrument or, if a trial has wrongly proceeded, a reversal of the
defendant’s conviction.” Benitez, 169 Ill. 2d at 258-59.
¶ 15 In this case, we find, consistent with rationale of the dissent in Edwards, the
information failed to strictly comply with section 111-3(a) of the Code (725 ILCS 5/111-3(a)
(West 2016)). First and foremost, the information, as defendant argues and the State concedes,
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failed to cite the statutory provision (225 ILCS 735/11(a) (West 2016)) making any violation of
an administrative rule promulgated under the Act a Class A misdemeanor. Absent that citation, we
find the information failed to strictly comply with the requirement that it “[cite] the statutory
provision alleged to have been violated.” 725 ILCS 5/111-3(a)(2) (West 2016). In so finding, we
reject the State’s assertion, an assertion made without any citation to supporting authority or
reasoned argument, that the failure to cite a statutory provision alleged to have been violated will
nevertheless strictly comply with section 111-3(a)(2) if the information “sufficiently alerted” the
defendant that he violated a statutory provision. See Edwards, 2019 IL 123370, ¶ 31 (referring to
the State’s failure to cite the statutory penalty provision as a “fundamental defect”).
¶ 16 Moreover, although not succinctly argued by defendant on appeal, the information,
despite alleging violations of the administrative rule found in section 1535.1(b) of Title 17 (17 Ill.
Adm. Code 1535.1(b) (2003)), did not allege defendant committed the single regulatory offense
described therein, “buying timber without a timber buyer’s license,” nor did it allege conduct
prohibited by the plain language of section 1535.1(b), namely: (1) failing to be listed with the
Department of Natural Resources as an authorized buyer to represent the timber buyer license;
(2) failing to designate in all contractual arrangements that the licensee is the timber buyer;
(3) being “listed” as an authorized buyer on more than one timber buyer’s license; or (4) applying
for a timber buyer’s license before reaching the age of 18 years. See Edwards, 2019 IL 123370,
¶ 34-39. Absent such allegations, we find the information failed to strictly comply with the
requirements that it “[state] the name of the offense” and “[set] forth the nature and elements of
the offense charged.” 725 ILCS 5/111-3(a)(1), (a)(3) (West 2016); see also People v. Alvarado,
301 Ill. App. 3d 1017, 1023, 704 N.E.2d 937, 941 (1998) (“If all the facts alleged may be true but
nevertheless fail to constitute an offense, the charge is insufficient.”).
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¶ 17 Because the information failed to strictly comply with section 111-3(a) of the Code
(725 ILCS 5/111-3 (West 2016)), we find the circuit court’s judgment must be reversed. That is,
we reject the State’s suggestion that we can avoid reversal by conducting an inquiry into the
prejudicial effect of the information’s noncompliance. Our supreme court has made clear such an
inquiry is not appropriate when a challenge to the sufficiency of a charging instrument is raised in
a pretrial motion. See Benitez, 169 Ill. 2d at 258 (“[W]here the sufficiency of a charging instrument
is challenged before trial in a motion to dismiss, the rule requiring that a defendant show prejudice
*** does not apply.”). In fact, the only authority cited by the State in support of its position, People
v. Dismore, 33 Ill. App. 3d 495, 497-99, 342 N.E.2d 151, 153-54 (1975), involved a challenge to
the sufficiency of a charging instrument raised for the first time on appeal. Because we find the
circuit court’s judgment must be reversed, we need not consider defendant’s other challenges
raised on appeal.
¶ 18 III. CONCLUSION
¶ 19 We reverse the circuit court’s judgment.
¶ 20 Reversed.
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People v. Edwards
Court: Appellate Court of Illinois
Date filed: 2021-12-28
Citations: 2021 IL App (4th) 210116-U
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