People v. Boyd

233 N.E.3d 277

2023 IL App (2d) 220053

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Israel H. V. BOYD, Defendant-Appellee.

No. 2-22-0053

Appellate Court of Illinois, Second District.

Filed January 17, 2023

Appeal from the Circuit Court of De Kalb County. No. 20-DT-263, Honorable Joseph C. Pedersen, Judge, Presiding.

Richard D. Amato, State’s Attorney, of Sycamore (Patrick Delfino, Edward R. Psenicka, and David S. Friedland, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Jason M. Kunowski, of Ramsell & Kunowski, L.L.C., of Wheaton, for appellee.

OPINION

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Defendant, Israel H.V. Boyd, was ticketed for driving While under the influence, of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2020)). Thereafter, the secretary of state confirmed the statutory summary suspension of defendant’s driving privileges. Defendant hired counsel, who petitioned to rescind the suspension, later withdrew the petition, and then refiled the same petition within one year. Both the State and defense counsel continued the hearing on the refiled petition numerous times. Finally, when the trial court continued the case—at the State’s request—for what proved to be the last time, defense counsel agreed to the continuance date, noting that it fell within the 30 days in which the State must hold a hearing on a petition to rescind. See id. § 2418.1(b). However, on the continuance date, defense counsel moved for an automatic rescission of the suspension, noting that 34 days attributable to the State had passed since the refiled petition to rescind was filed. The trial court granted the motion, the State moved to reconsider, and the court denied that motion. The State timely appeals. At issue is whether (1) defendant invited error when he agreed to a hearing date beyond the 30-day deadline, (2) the State forfeited any invited-error argument, and (3) any of the delays the court attributed to the State were properly attributable to defendant such that the State afforded defendant a timely hearing on the refiled petition and, thus, the automatic rescission of the suspension was erroneous. We (1) decline to find that the State forfeited its invited-error argument, as doing so would make a mockery of statutory summary suspension proceedings, and (2) conclude that at least some of the delay on the refiled petition was improperly attributed to the State, which made the automatic rescission erroneous. Accordingly, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 On September 20, 2020, the police arrested defendant for DUI. In October 2020, the secretary of state confirmed the statutory summary suspension of defendant’s driving privileges.

¶ 4 Thereafter, defendant retained Ramsell & Associates, LLC (Ramsell & Associates), to represent him. On December 7, 2020, counsel petitioned to rescind the summary suspension. The trial court continued the hearing on the petition several times. On February 16, 2021, Todd McCartney, an associate at Ramsell & Associates, withdrew the petition. Proceedings on the criminal DUI charge proceeded.

¶ 5 On July 21, 2021, Nicholas Alvarez, another associate at Ramsell & Associates, appeared on defendant’s behalf before Judge Phillip G. Montgomery. Alvarez asked for a hearing date on the petition to rescind the summary suspension. The State noted that McCartney had previously withdrawn the petition. Judge Montgomery agreed, stating:

"Yes. It was set numerous times. The officer was present numerous times and then your office, Mr. Alvarez, continued it a number of times, and then you withdrew the petition to rescind on February. 16, 2021, and that’s actually in the order as opposed to tolling Trainor."¹

Alvarez stated that he understood, asserted that he could file another petition to rescind, and asked for a 30-day date so that he could talk to McCartney. On defendant’s motion, the court set August 25, 2021—35 days later—as the next court date. At approximately 4 p.m. on July 21, 2021, Ramsell & Associates filed a petition to rescind on defendant’s behalf. That petition was almost identical to the one filed on December 7, 2020.² Notice of the petition was served on the trial court and the State. On July 22, 2021, the State moved to set July 28, 2021, as the date for a hearing before Judge Montgomery. The State sent notice of the new hearing date to Ramsell & Associates.

¶ 6 On July 28, 2021, the case proceeded before Judge Montgomery. He announced the case name and number but did not have the parties announce their appearances. The transcript reflects that Donald Ramsell (Ramsell) appeared for defendant. Judge Montgomery stated:

"This is up for setting of the summary suspension hearing. The . petition was filed. Well, the new petition was filed July 21st. This is an odd, so we’ll go to August 17th at 1:30 in front of Judge [Joseph] Pedersen."

Judge Montgomery struck the August 25, 2021, court date. Neither Ramsell nor defendant (if present) spoke during the brief proceedings. The court’s written order (1) indicates that Ramsell appeared for defendant, who was not present³ and (2) provides that the case was continued on the State’s motion to August 17, 2021.

¶ 7 At the August 17, 2021, proceeding, Judge Pederson commented that defense counsel was not present. However, on Zoom, "[s]omebody [kept] popping up and then every time [the trial court] move[d] the mouse over their name they disappear[ed] so [the court did not] know." Also, because the police officer was not present, the State informed Judge Pedersen that it would have asked for a continuance if defense counsel had appeared. The State also noted that the officer had been present at other times. The State asked that the case be set before Judge Montgomery on Sep- tember 22, 2021, asserting "[t]hat’s the 30-day date." The written order reflects that the continuance was on defendant’s motion.

¶ 8 On September 22, 2021, Ramsell appeared without defendant. Ramsell was confused about what had transpired in the case. He looked at his notes and stated that he was trying to figure out why his associate would be asking for a summary suspension hearing. Judge Montgomery explained that the case was up for a hearing on August 17, 2021; however, neither defendant nor anyone from Ramsell’s office appeared in court that day, and the case was continued to September 22, 2021, because the court and the State knew Ramsell had another case up on that date. Ramsell noted that he found all this odd, as his firm knew about the court date, and he "focus[es] on a hundred percent attendance." Ramsell asked for a hearing on a Wednesday in the middle or end of October. Judge Montgomery noted that a Wednesday date was impossible because "this is an odd [docket number] and so it would go in front of Judge Pedersen, and Judge Pedersen does his hearings on Tuesdays in the afternoon, but he’s generally available any Tuesday that you would be available." Although Ramsell asserted that he did not have a preference and would take any date that was convenient for the court, he rejected an October 12, 2021, court date and asked for a later date. With Ramsell’s agreement, the court set the case for October 26, 2021. The written order reflects that the case was continued on defendant’s motion.

¶ 9 On October 26, 2021, Jason Kunowski, another associate at Ramsell & Associates, appeared in court with defendant. Because the State had just learned that the arresting officer was at a funeral, the State asked for a continuance, noting that it did not know how many days the State had delayed the hearing on the refiled petition.⁴ Judge Pedersen explained:

"Well, it looks like it was set for hearing on September 22nd for today. Was there a previous—there must have been a—I guess not, because. that doesn’t make sense, either. It looks like it was set for hearing on August 17th and then no one appeared on that date for some reason and it got reset back before Judge Montgomery and then it got set on September 22nd for today’s date, so—and I don’t see anything in the order about Trainor.

That’s what I’m unclear about. I don’t see any discussion of Trainor, but then I don’t know what effect it has when the matter is set for hearing and the defendant and his attorney don’t appear."

Kunowski suggested that there may have been confusion about whether the proceedings would occur in person or over Zoom. He then indicated that he "would think that the time from July 21st to August 17th *** would be on [the] State’s time and then if a hearing is unable to be provided today, that would cause the Trainor period to begin to run again." Judge Pedersen asked, "So 20 days approximately have already run. Is that what your position is, counsel?" Kunowski replied, "Yeah, that would be my position, Judge. I’m double-checking my math here." Judge Pedersen asked, "Set it for next Tuesday [November 2, 2021,] if you’re available." After the State indicated that that date would be acceptable, Kunowski asked, "[S]o that would be day 28?" Judge Pedersen replied, "Correct," noting that he could not give the parties another hearing date within 30 days besides November 2, 2021.

The State replied, "All right." The court asked Kunowski, "Okay?" Kunowski responded, "Thank you, Judge." The written order provides that the case was continued on the State’s motion.

¶ 10 On November 2, 2021, Kunowski told Judge Pedersen that, since the last court date, he had "checked the math" to see if more than 80 days attributable to the State had passed since the petition was refiled. Kunowski continued:

"If by my count we have the refile on July 21st of 2021 going through August 17th of 2021, that’s 27 days. And then if we were to look at the—there’s no mention of Trainor or I think there was an issue of being in person or being on Zoom on the August 17th date and then the matter was reset to October 26th. So, Your Honor, going from October 26, 2021, last week until

...