Opinion
Appeal No. 3-12-0390
10-15-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAIL SALEM, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 11-CF-935
The Honorable Richard C. Schoenstedt, Judge, presiding. JUSTICE O'BRIEN delivered the judgment of the court.
Presiding Justice Lytton concurred in the judgment.
Justice Wright dissented.
ORDER
¶ 1 Held: The defendant's appeal from his conviction for possession of a stolen motor vehicle was dismissed for lack of jurisdiction because the defendant failed to file his appeal within 30 days of final judgment. Although the defendant filed his notice of appeal within 30 days of the denial of his motion for a new trial, that motion was filed more than 30 days after the verdict, so was not a timely motion against the judgment. ¶ 2 The defendant, Wail Salem, appeals from his conviction of four counts of possession of open vehicle titles (625 ILCS 5/4-104(a)(2) (West 2010)).
¶ 3 FACTS
¶ 4 In the course of executing an unrelated search warrant, law enforcement officials discovered several stolen vehicles at the defendant's home and numerous other vehicle titles. The defendant was charged by indictment with five Class 4 felony counts of unlawful possession of vehicle titles. One charge was nolle prossed, but the other four counts proceeded to trial. ¶ 5 During the trial, the State sought to admit four pieces of evidence of other crimes, to show the defendant's intent, knowledge, and absence of mistake. Specifically, the State sought to introduce: 1) the fact that a Lincoln Navigator found in the defendant's driveway was a stolen vehicle; 2) the title for the Navigator was a fraudulent title and was found with the titles at issue in this case; 3) a black BMW, also found in the defendant's driveway, was a re-tagged vehicle; and 4) a maroon BMW in the defendant's driveway had two titles, one from Indiana and one from Illinois. Defense counsel argued that the other evidence was not relevant to the charged crimes, and it was prejudicial to the defendant. The trial court found the evidence to be relevant, and admissible to show the defendant's mental state. The trial court admonished the jury with Illinois Pattern Instruction 3.14, Proof of Other Offenses or Conduct, at the conclusion of all the evidence. ¶ 6 The jury returned its verdict of guilty on December 1, 2011, and the trial court entered a judgment of conviction as to all four counts. The defendant was sentenced on February 27, 2012, to 4 ½ years' imprisonment on each count, to be served concurrently. The defendant filed his post-trial motion on March 26, 2012. The motion was heard without a timeliness objection from the State, and it was denied on April 9, 2012. The defendant filed his notice of appeal on May 9, 2012. On appeal, the defendant argues that the trial court abused its discretion in admitting other-conduct evidence and in admitting the defendant's prior federal conviction.
¶ 7 ANALYSIS
¶ 8 As an initial matter, the State argues that we lack jurisdiction. Whether this court has jurisdiction presents an issue of law subject to de novo review. People v. Marker, 233 Ill. 2d 158, 162 (2009). ¶ 9 Under Illinois Supreme Court Rule 606(b), a notice of appeal must be filed within 30 days after the entry of the final judgment or within 30 days of the order disposing of a timely motion against the judgment. The filing of the notice of appeal is jurisdictional. Ill. S. Ct. R. 606(a) (eff. Mar. 20, 2009). In a criminal case, a judgment is final when the defendant is sentenced. People v. Stanford, 2011 IL App (2d) 090420, ¶20 (citing People v. Danenberger, 364 Ill.App.3d 936, 939 (2006). Thus, since the defendant was sentenced on February 27, 2012, the defendant had until March 28, 2012, to file his notice of appeal. The defendant did not file his notice of appeal until May 9, 2012, beyond the 30-day window. The question is, then, whether he filed his notice of appeal within 30 days of an order disposing of a timely motion against the judgment. The defendant did file his notice of appeal within 30 days of the denial of his post-trial motion; the question is whether that motion was timely. ¶ 10 A defendant must file a motion for a new trial "within 30 days following the entry of a finding or the return of a verdict." 725 ILCS 5/116-1(b) (West 2010); People v. Gilmore, 356 Ill. App. 3d 1023, 1035 (2005). In this case, the verdict was returned on December 1, 2011, so the defendant's motion for a new trial filed on March 26, 2012, was not timely. The appellate court does not have the authority to excuse the filing requirements of the supreme court rules governing appeals. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 217 (2009). ¶ 11 There is no indication that the State challenged the timeliness of the posttrial motion in the trial court, but rather responded to the substantive issues in the motion. However, waiver is of no consequence because subject matter jurisdiction cannot be waived. People v. Bailey, 2014 IL 115459. ¶ 12 The defendant acknowledges that the motion for a new trial was filed more than 30 days after the jury verdict, but argues that that the trial court had jurisdiction under the revestment doctrine. Thus, the defendant argues that his notice of appeal filed within 30 days of the denial of his motion for a new trial was timely. The defendant argues that the trial court had jurisdiction through the revestment doctrine. ¶ 13 The revestment doctrine is an exception to the rule that a trial court loses jurisdiction at the end of the 30-day window following the entry of a final judgment. Bailey, 2014 IL 115459, ¶ 8. However, revestment is a narrow exception, and only applies if both parties: (1) actively participate in the proceedings, (2) fail to object to the untimeliness of the late filing, and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment. Id. at ¶ 25. While the State did not object on timeliness grounds, it did object to the motion on substantive grounds, and did not assert a position that was inconsistent with the judgment. Thus, the revestment doctrine does not apply. Since the motion for a new trial was not timely, it did not extend the 30-day window from the date of the jury verdict, and the notice of appeal was untimely. ¶ 14 Since the notice of appeal was untimely, we lack jurisdiction over the appeal.
¶ 15 CONCLUSION
¶ 16 Appeal dismissed. ¶ 17 Dismissed. ¶ 18 JUSTICE WRIGHT, dissenting. ¶ 19 I respectfully submit this court has jurisdiction to consider the merits of this appeal and would reverse defendant's convictions for the reasons set forth below.
¶ 20 I. Jurisdiction
¶ 21 In this case, I agree with the majority that the defense motion did not comply with the procedural deadline of section 116-1(b) of the Code of Criminal Procedure of 1963 (the Code) since it was filed more than 30 days after the December 1, 2011, verdict. In my opinion, the procedural deadline set out in section 116-1(b) was waived by both the court and counsel. In addition, I submit the procedural timeline defined in section 116-1(b) does not control whether the same motion was timely filed with respect to the jurisdictional considerations set out in rule 606(b). In other words, a motion will be considered procedurally untimely for purposes of section 116-1(b), when filed more than 30 days after the date of verdict. However, the same motion filed more than 30 days after the date of verdict, may still be considered timely for purposes of jurisdiction according to rule 606(b). This is true because rule 606(b) does not cross-reference section 116-1(b) for purposes of timeliness. ¶ 22 The case law supports my view that the trial court did not lack jurisdiction to exercise its discretion to consider the posttrial motion based on a procedural timeline that the parties waived in the case at bar. A trial court always has the discretion to consider the merits of an untimely posttrial motion with respect to section 116-1(b), as long as the motion was filed within 30 days of final judgment and before the court automatically loses jurisdiction by the operation of rule 606(b). See People v. Gilmore, 356 Ill. App. 3d 1023, 1036 (2005); Talach, 114 Ill. App. 3d at 818. This is exactly what happened in the case at bar. ¶ 23 In this case, the trial court imposed defendant's sentence, or final judgment, on February 27, 2012. The court immediately instructed defendant to file a written posttrial motion within the next 30 days. The State did not object to this procedure. Nonetheless, the trial court clearly did not lose jurisdiction to accept the motion on March 26, 2012, and then schedule a hearing on the merits for April 9, 2012. Consequently, I conclude defendant's notice of appeal, filed within 30 days of the court's ruling on the merits, gives rise to our jurisdiction to review the court's decision. ¶ 24 The decision in People v. Bailey, 2014 IL 115459, can be distinguished from the case at bar. In Bailey, the defense filed a posttrial motion more than three years after the trial court lost subject matter jurisdiction. Unlike the situation in Bailey, in this case, the court had jurisdiction on February 27, 2012, and retained jurisdiction to accept the anticipated motion for new trial, which the defense filed on March 26, 2012. I disagree the trial court lost jurisdiction to consider this particular pending posttrial motion on April 9, 2012. Since jurisdiction did not lapse, I conclude revestment does not apply. ¶ 25 The chronology of events in this case is somewhat atypical. Yet, all of the parties seemed to be very comfortable with the court's decision to provide an extended deadline by directing this defendant to file his posttrial motion within 30 days after the conclusion of the February 27, 2012, sentencing hearing. The State failed to remind the court on February 27, 2012, that defense counsel had already missed the deadline for filing a posttrial motion according to section 116-1(b) of the Code. Perhaps the court and counsel were simply unaware that posttrial motions addressing errors preceding the date of verdict must be filed within 30 days of verdict according section 116-1(b). However, it appears more likely to me that the judge's procedural approach was rooted in established local custom or, perhaps, this particular judge's preference to conduct only one posttrial motion hearing, for the purpose of addressing both trial and sentencing issues, if any, on the same date. Nonetheless, neither party took issue, in the trial court, with the procedural approach adopted by this judge. In fact, the State did not object to the extended deadline and argued the merits of the posttrial motion without asserting the trial court had lost jurisdiction prior to the hearing on April 9, 2012. ¶ 26 Since defendant's notice of appeal was filed on May 9, 2012, within the 30-day window set out in Rule 606(b), I submit the notice of appeal was timely. Consequently, I conclude this court has jurisdiction to consider the merits of this appeal.
¶ 27 II. Other Crimes Evidence
¶ 28 Since I believe this court has jurisdiction to consider the merits of this appeal, I would not dismiss the appeal and would reach the merits as discussed below. After careful consideration, I believe this defendant is entitled to a new trial. ¶ 29 On appeal, defendant contends the trial judge abused his discretion by allowing the State to introduce extensive other crimes evidence. The defense argues that "the excessive evidence presented by the State as to a number of uncharged offenses [related to the unlawful possession of stolen cars] presented a disconcerting risk of over-persuading the jury that defendant was a bad person who deserved punishment." Therefore, defendant requests a new trial. ¶ 30 Courts have held that the underlying rationale for making other crimes evidence inadmissible is not because such evidence "has no appreciable probative value, but because it has too much;" and "[t]he law distrusts the inference that because a man has committed other crimes, he is more likely to have committed the crime charged." People v. Kimbrough, 138 Ill. App. 3d 481, 484 (1985). Further, Illinois courts have warned against the dangers of putting on a "trial within a trial," presenting other crimes evidence with such detail and repetition that it greatly exceeded what was necessary to establish the particular purpose for which the evidence was admitted. People v. Boyd, 366 Ill. App. 3d 84, 94 (2006) (citing People v. Bartall, 98 Ill. 2d 294, 315 (1983)). ¶ 31 Such a trial within a trial occurred in the case at bar. The State's evidence conclusively established the four open titles corresponded to a 1997 Toyota Avalon XL/XLS, a 1985 Mercedes 380SL "Roadster," a 2002 Jeep Grand Cherokee, and a 2003 Chevrolet Trailblazer. However, the State did not offer any evidence suggesting the open titles shared any common characteristics with the stolen vehicles parked in defendant's driveway. ¶ 32 I agree the State's other crimes evidence, allowed by the court, made a very convincing case that defendant knowingly possessed the three uncharged stolen vehicles, because he directed his wife to hide one of the vehicles from the police during a telephone call from the jail. However, in the case at bar, defendant was not charged with possessing any stolen vehicle but instead, faced charges for possessing open titles to cars that had not been reported as stolen. On this basis, I conclude a nexus did not exist between the other crimes evidence concerning three stolen cars. ¶ 33 Moreover, the other crimes evidence was so excessive it rose to the level of prosecutorial overkill. For example, the State presented four exhibits pertaining to the allegations in counts I, II, IV, and V of the indictment, marked as People's Exhibit Nos. 3A, 5A, 7A, and 6A, respectively. Yet, the jury received 17 additional exhibits for the uncharged crimes of possessing multiple stolen vehicles. Hence, this jury received four times the evidence for uncharged crimes, in comparison to the open title offenses. Due to the unique circumstances in the case at bar, I conclude the trial court abused its discretion by allowing the State to introduce such extensive other crimes evidence proving this defendant was a thief and just a bad guy. Consequently, I would require a new trial without the massive other crimes evidence.
In its appellate brief, the State concedes none of the vehicles found in defendant's driveway, including the black Mercedes, corresponded to the vehicles listed in the open title charges in the instant case.
¶ 34 III. Use of Prior Convictions
¶ 35 Defendant also argues the trial court committed further reversible error by allowing the State to impeach defendant's credibility with his certified 1999 federal fraud convictions and the certified copy of the docket sheet showing defendant's guilty plea in the 2010 Cook County case. Since defendant did not preserve this error in a posttrial motion, I first consider whether plain error applies. ¶ 36 The State concedes, in its appellate brief and during argument, it did not present sufficient evidence regarding the 1999 federal convictions to meet the strict 10-year requirement as set forth in Rule 609(b) of the Illinois Rules of Evidence. Ill. R. Evid. 609(b) (eff. Jan. 1, 2011); see also People v. Yost, 78 Ill. 2d 292, 297 (1980). Therefore, it is undisputed the trial court erred by allowing the State to present these 11 federal convictions to the jury to impeach defendant's credibility. ¶ 37 Next, defendant contends the trial court also erred by allowing the State to impeach defendant's credibility with proof of a guilty plea for the 2010 Cook County charge because the guilty plea had not resulted in a sentence and final judgment of conviction. Although there is no Illinois case law directly on point, we recognize that, while a guilty plea is an admission of guilt, such an admission of guilt does not become a 10 final judgment of conviction until the court imposes a sentence, either by agreed disposition or following a sentencing hearing. Both section 2-5 of the Criminal Code of 1961, defining a conviction (720 ILCS 5/2-5 (West 2010)), and section 102-14 of the Code of Criminal Procedure of 1963, defining a judgment (725 ILCS 5/102-14 (West 2010)), must be considered together to resolve this issue. The Criminal Code of 1961 states: " 'Conviction' means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury." 720 ILCS 5/2-5 (West 2010). Next, section 102-14 of the Code of Criminal Procedure of 1963 defines judgment, as follows: " 'Judgment' means an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court." (Emphasis added.) 725 ILCS 5/102-14 (West 2010). Further, our supreme court has long established that the final judgment in a criminal case is the sentence (People v. Allen, 71 Ill. 2d at 381 (citing People v. Warship, 59 Ill. 2d 125), and a defendant cannot appeal his criminal case until final judgment is entered (Ill. S. Ct. Rule 606(b) (eff. March 20, 2009)). ¶ 38 I am aware of only one case in Illinois addressing what constitutes a "conviction" for purposes of impeachment of a defendant during a criminal trial. In People v. Lashmett, the court held that only convictions may be proved for impeachment purposes, 11 and proof of arrests, indictments, charges, or actual commission of a crime were not admissible. People v. Lashmett, 126 Ill. App. 3d 340, 345 (1984). The Lashmett court held that a conviction contemplated more than a "mere finding of guilt." Id. Lashmett is potentially distinguishable because that case held that a jury's verdict of guilty did not constitute a conviction for purposes of impeachment. However, the Lashmett court was not asked to determine whether a judge's finding of guilt, based on a guilty plea, would require the same result. Id. In fact, this court has previously held, in a civil case, a witness could not be impeached with a prior "conviction" before being sentenced in her criminal case. In re Estate of Kline, 245 Ill. App. 3d 413, 430 (1993) (citing People ex rel. Grogan v. Lisinski, 113 Ill. App. 3d 276, 281 (1983)). ¶ 39 Based upon a review of the Cook County record, I conclude defendant's guilty plea did not constitute a conviction for purposes of impeachment. Consequently, the trial court erred by allowing the jury to consider the Cook County guilty plea. ¶ 40 In People v. Glasper, our supreme court equated the second prong of plain error review with structural error, asserting that "automatic reversal is only required where an error is deemed 'structural,' or a systemic error which serves to 'erode the integrity of the judicial process and undermine the fairness of the defendant's trial.' " People v. Glasper, 234 Ill. 2d 173, 197-98 (2009) (quoting People v. Herron, 215 Ill. 2d 167, 186 (2005). An error is typically designated as structural only if it necessarily renders a criminal trial fundamentally unfair or is an unreliable means of determining guilt or innocence. People v. Thompson, 238 Ill. 2d 598, 608 (2010); People v. Williams, 409 Ill. App. 3d 408, 413 (2011). ¶ 41 Here, the State concedes the jury should not have been informed that defendant had 11 prior convictions for federal fraud charges and should not have considered those 12 convictions for purposes of impeachment. In addition, I conclude the jury should not have been allowed to consider defendant's 2011 guilty plea, in the 2010 Cook County case, for purposes of impeachment. Without the 11 federal convictions and the 2011 guilty plea, the State could not properly urge the jury, as instructed by the court, that defendant's credibility was weakened by his prior convictions for these particular 12 offenses. ¶ 42 Consequently, the admission of this improper evidence of impeachment by prior conviction was so egregious that it eroded the integrity of the judicial process and rendered defendant's trial fundamentally unfair. Hence, I also reject the State's contention that the conceded error, with respect to these convictions, was harmless. Therefore, I would reverse defendant's convictions for open titles due to the improper other crimes evidence in addition to the improper impeachment by prior convictions discussed above. ¶ 43 For the foregoing reasons, I respectfully dissent.