                                    2016 IL App (1st) 140598
                                         No. 1-14-0598
                                Opinion filed September 14, 2016
                          Supplemental Opinion filed October 18, 2017
                                                                                    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.             )
______________________________________________________________________________

       PRESIDING 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
No. 1-14-0598

the courthouse in Maywood (Fourth Municipal District). Defendant was arrested on May 1,

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.

       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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                ASA: Correct.

                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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No. 1-14-0598

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.

¶ 23            SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

¶ 24    Subsequent to the issuance of our opinion in this case, the State timely filed a petition for

rehearing. We invited the defendant to file a response, to which the State filed a reply. At the

heart of the State’s argument in support of rehearing is its interpretation of our supreme court’s

decision in People v. Castleberry, 2015 IL 116916. For the reasons that follow, we deny the

State’s petition.


¶ 25    With Castleberry as the backdrop, the State argues that the erroneous denial of a section

114-5(a) motion, or substitution of judge, does not fit within any of the void judgment categories.

They maintain that judgments entered following an erroneously denied section 114-5(a) motion

are merely voidable. Accordingly, absent a showing of plain error, claims of entitlement to

automatic reversal that have not been preserved in a posttrial motion are forfeited.


¶ 26    The State first posits that Castleberry defined void judgments as “only those judgments

made without personal or subject matter jurisdiction.” The State subsequently acknowledges,

however, that in People v. Thompson, 2015 IL 118151, ¶ 32, the court noted that “[a] second

type of voidness challenge that *** may be raised at any time involves a challenge to a final



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judgment based on a facially unconstitutional statute that is void ab initio.” See also People v.

Price, 2016 IL 118613, ¶ 31 (“This court has recognized only three circumstances in which a

judgment will be deemed void: (1) where the judgment was entered by a court that lacked

personal or subject-matter jurisdiction, (2) where the judgment was based on a statute that is

facially unconstitutional and void ab initio, and (3) where a judgment of sentence did not

conform to a statutory requirement (the void sentencing rule).”).


¶ 27   The State argues that decisions that state that improper denials of section 114-5(a)

motions result in “void” judgments are in conflict with Castleberry and earlier substitution of

judge or, the then, change of venue cases. They maintain that these decisions are highly

questionable because, first, Castleberry now repudiates the term “void” in this context. Second,

“actual historical practice does not support treatment of judgments as “void” simply because an

SOJ motion was improperly denied.” Citing Cantwell v. People, 138 Ill. 602, 604-05 (1891), the

State asserts that none of the early cases, prior to the late 1960’s, dealing with the issue of

improper denial of substitution of judge or change of venue motions ever used the term “void.”

Further, none of the earlier courts said that all actions taken by a court after a wrongful denial of

a change of venue petition were “null and void.” Thus, the State urges our rejection of the term

and entreats us to correct that part of our analysis characterizing all judgments following the

denial of an improper substitution of judge under section 114-5(a) as “void.”


¶ 28   We agree with the State’s observations regarding earlier decided cases. A historical

review of Cantwell and its progeny aid in the correct interpretation of the court’s more recent

holding in People v. McDuffee, 187 Ill. 2d 481 (1999). In early cases addressing the issue, the

court stated simply that the right to a change of venue, as the automatic substitution provision



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was then called, was absolute and that an erroneous denial of the same was reversible error.

People v. Rosenbaum, 299 Ill. 93, 94 (1921); see Cantwell, 138 Ill. at 604, People v. Cohen, 268

Ill. 416 (1915), and People v. McWilliams, 350 Ill. 628 (1932). In later years, the court’s

language expanded to include that where a petition for change of venue on account of the

prejudice of the judge is in compliance with the act, “the trial judge loses all power and

authority over the case except to make the necessary orders to effectuate the change.” (Emphasis

added.) People v. Davis, 10 Ill. 2d 430, 434 (1957) (citing Rosenbaum, 299 Ill at 94, Cohen, 268

Ill. 416, and Cantwell, 138 Ill. 602). Then, in 1961, the court in People v. Kostos, 21 Ill. 2d 451,

455 (1961), tracked the exact language in Davis, 10 Ill. 2d 430, and cited also to the court’s 1921

opinion in Rosenbaum, 299 Ill. 2d 93.


¶ 29   Seventeen years later, in People v. Walker, 119 Ill. 2d 465 (1988), the court was asked to

determine whether section 114-5(a) violated the separation of powers doctrine. In its analysis,

the Walker court repeats the pre-1957 courts’ refrain, stating without more, that where a criminal

defendant’s properly filed motion for substitution of judge is denied reversible error occurs. Id. at

481. Ten years later, the court in McDuffee, 187 Ill. 2d at 487-88, relies extensively on the

reasoning and holding in Walker in finding reversible error for the erroneous denial of the

defendant’s section 114-5(a) motion. It is in McDuffee that the court states that “ ‘if a [motion for

substitution of judge] is improperly denied, all subsequent action taken by the trial court is

void.’ ” (Emphasis added and omitted.) Id. at 492 (quoting People v. Williams, 217 Ill. App. 3d

791, 793 (1991)). In our majority opinion we track, verbatim, our supreme court’s language in

McDuffee.




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¶ 30   Although the language used to define the actions taken by a trial judge who erroneously

denies what is currently known as a motion for substitution of judge has evolved, the effect of an

improper denial, reversible error, has not. It does appear, however, that the use of the term

“void,” in the context of Castleberry’s void judgment analysis and also in McDuffee’s reversible

error analysis has led to confusion regarding the viability of section 114-5(a) claims. We are not,

however, without some guidance in avoiding any future confusion.


¶ 31   Indeed, in People v. Davis, 156 Ill. 2d 149 (1993), our supreme court cautioned that when

the term “void” is used in a judicial opinion it is necessary to resort to the context in which the

term is used to determine precisely the term’s meaning. Id. at 155. It goes without saying that

jurisdiction is vested in the courts, not in the judges. People v. Gray, 363 Ill. App. 3d 897, 900

(2006) (citing Department of Public Works & Buildings v. Legg, 374 Ill. 306, 309 (1940)).

Clearly a motion for substitution of judge relates to a perceived bias by a judge, not to the court’s

jurisdiction. Review of prior precedent makes clear that the McDuffee court’s use of the term

“void” is not intended to refer to the court’s jurisdiction but instead to actions taken by the trial

judge. Such a reading renders the court’ s 1999 decision in McDuffee absolutely reconcilable

with its 1988 decision in Walker, its 1961 decision in Kostos, and its 1957 decision in Davis.


¶ 32   By our language in the majority opinion, we intend no deviation from the holding in

McDuffee and the cases upon which it relied. There, the court stated that “any actions taken by

the court subsequent to the [erroneous denial of the defendant’s motion for substitution] were

null and void.” McDuffee, 187 Ill. 2d at 492. We understand the McDuffee court’s use of the

phrase “any action taken by the court” to include the judge’s act of entering a judgment. We do




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not, however, understand the court’s holding to mean that the trial court was thereby divested of

jurisdiction.


¶ 33    The State argues that expanding the category of void judgments to include cases of trial

court error in denying a motion for substitution of judge harkens back to the now repudiated

inherent authority doctrine rejected in Castleberry. In that regard the State cautions that “to the

extent the ‘null and void’ language in substitution of judge case law is tied to the inherent

authority doctrine, it should be viewed and applied with extreme caution, if not abandoned

altogether.”


¶ 34    We disagree. In fact our failure to reverse in such instances would diminish an already

existing category of judgments subject to reversible error. Here, we did no more than adhere to

long settled principles of law, which provide that the improper denial of a defendant’s section

114-5(a) motion for substitution of judge requires reversal. Further, we believe the State reads

Castleberry too broadly. We reject the notion that the court in Castleberry, while in the process

of abolishing the void sentencing rule, also did away with our court’s inherent authority. As we

read it, Castleberry repudiated the inherent authority doctrine only insofar as it was relied upon

as a basis for conferring jurisdiction.


¶ 35    This court has noted that the phrase “inherent power” is not synonymous with

jurisdiction. See Miller v. General Telephone Co. of Illinois, 29 Ill. App. 3d 848, 853 (1975); see

also People v. Heil, 49 Ill. App. 3d 55, 59 (1977). Although our research has not cited us to a

case which expressly defines the phrase, in People v. Walker, 232 Ill. 2d 113 (2009), our

supreme court noted that courts have inherent authority to guarantee each defendant a fair trial.

See also People v. Lawson, 67 Ill. 2d 449, 456 (1977). Quoting from its earlier opinion in People


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v. Rudi, 103 Ill. 2d 216, 222 (1984), the court in Walker stated that the circuit court’s inherent

powers enable it to “simultaneously *** protect the legitimate rights of defendants, maintain

respect for its calendar, and satisfy the public’s interest in the fair and efficient prosecution of

those accused of crime.” (Internal quotation marks omitted.) Walker, 232 Ill. 2d at 129.


¶ 36   We trust that the inherent authority doctrine is alive and well in our jurisprudence. Thus,

notwithstanding the State’s admonishment, we would not think it too far a stretch to find that the

automatic reversal required by the erroneous denial of a properly filed section 114-5(a) motion

flows from that very power. “Viewed historically, *** it is clear that [our supreme court] has

considered the automatic substitution of judge statute a legitimate and proper means to ensure a

fair trial.” Walker, 119 Ill. 2d at 481. The “void sentencing rule” addressed in Castleberry differs

from the void orders resulting from the improper denial of a section 114-5(a) motion for

substitution of judge. The right to a fair and impartial trial is a constitutional protection that, as

our supreme court has held for more than a quarter of a century, is effectuated through the

legislative enactment of various iterations of section 114-5(a). See Walker, 119 Ill. 2d at 480; see

also People v. Evans, 209 Ill. 2d 194, 215 (2004). The legislature’s enactment of various

sentencing ranges for criminal conduct, however, effectuates no protections afforded a defendant

pursuant to either our state or federal constitution.


¶ 37   McDuffee, like the case at bar, does not fit within the narrow confines of Castleberry’s

jurisdictional analysis. Noticeably, neither McDuffee, nor any of the cases which preceded it,

discuss the erroneous denial of a section 114-5(a) motion in the context of jurisdiction. Simply

put, McDuffee remains the law in Illinois, and we are bound to follow it. People v. Rosinski, 351

Ill. App. 3d 459, 461 (2004); see also Rosewood Care Center, Inc. v. Caterpillar, Inc., 366 Ill.



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App. 3d 730, 734 (2006). Thus, we acknowledge that our reliance on Castleberry’s fundamental

defect concept to support the continued viability of McDuffee is misplaced.


¶ 38     Before concluding, we deem it necessary to address the State’s argument regarding plain

error and forfeiture. As we acknowledged in our majority opinion, defendant failed to present the

trial court’s denial of his motion in a posttrial motion. Treating the issue in the same manner as if

it were the type of void judgment about which Castleberry implied, we declined to find the issue

forfeited. We continue to do so but for different reasons.


¶ 39     We reject the State’s argument that because the defendant failed to raise his claim in a

posttrial motion, he must now demonstrate prejudice or structural error. We would remind the

State that the defendant’s right to substitution of judge under section 114-5(a), unlike the “for

cause” provision in section 114-5(d), is automatic and absolute. 3 The trial court’s erroneous

denial of the same should not result in a greater burden on defendant who timely presented his

motion and was, in every regard, compliant with statute and controlling case law.


¶ 40     To the extent the State relies on People v. Evans, 37 Ill. 2d 27 (1967), to support its

prejudice argument, that reliance is misplaced. In Evans, the defendant filed a postconviction

petition in which he alleged that the trial court erred in denying his motion for change of venue.

Id. at 30. The petition contained allegations of the facts and circumstances in the defendant’s

case, supported by his own affidavit that the same were true in substance and in fact. Id. at 29.

The State moved to dismiss, asserting that the defendant’s allegations were conclusory and

unsupported by accompanying affidavits, records, or other evidence. Id.

3
 A substitution for cause petition must be supported by affidavit; the allegations of bias must be specific and not be
conclusory in nature and does not have to be filed within 10 days of the trial judge’s call. 725 ILCS 5/114-5(d)
(West 2000); see also People v. Jones, 197 Ill. 2d 346, 354 (2001).


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¶ 41   On review, the court, citing the substitution of judge statute (Ill. Rev. Stat. 1965, ch. 38,

¶ 114-5), noted that although a person may have a right to a substitution of judge upon mere

allegation of bias on the part of the judge, the denial of “this statutory right is not necessarily a

violation of constitutional dimension.” Evans, 37 Ill. 2d at 30. To establish a constitutional

violation within the purview of the Post-Conviction Hearing Act, the defendant would have to

allege facts that, if true, would show that he was substantially prejudiced by the denial of his

motion for substitution of judges. Id. In affirming the trial court’s dismissal, the court held that

the defendant’s allegation, alleging only that the trial court erred in denying his motion for

change of venue, “contain[ed] insufficient facts to raise a constitutional question within the

purview of the Post-Conviction Hearing Act.” Id. at 31.


¶ 42   Most obviously in Evans, the defendant’s claimed errors regarding the trial court’s denial

of his motion for automatic substitution were brought in the context of a postconviction

proceeding. The State cites to no case in which a defendant, on direct appeal, is required to

support his claim of error in the denial of a motion for automatic substitution, pursuant to section

114-5(a), with evidence of actual prejudice. We note, additionally, that the court in Evans cites to

section 114-5, generally, without making any distinction as to whether defendant’s claim was

with respect to the automatic substitution provision (Ill. Rev. Stat. 1965, ch. 38, ¶ 114-5(a)) or to

the for cause provision (Ill. Rev. Stat. 1965, ch. 38, ¶ 114-5(c)). Finally, and significantly, Evans

was decided prior to the court’s decision in Walker, 119 Ill. 2d at 480-481, in which the court

held the statutory provision to be of constitutional dimension. But see Walker, 119 Ill. 2d at 484-

85 (Miller, J., specially concurring, joined by Simon, J.) (noting his disagreement with the

majority’s suggestion that the automatic-substitution provision is constitutionally required).



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¶ 43   We are mindful that, as a general rule, to preserve a claim for review, a motion for a new

trial as well as a claim of error or objection at trial are required. People v. Enoch 122 Ill. 2d 176,

186 (1988). The purpose for requiring a posttrial motion specifying the alleged errors is to

provide the court the opportunity to grant a new trial if warranted and to narrow the appeal to

those errors considered significant by trial counsel. Id. at 186. Generally, failure to comply with

the requirement limits the court’s review. Id. at 190.


¶ 44    In our view, given that the right to a section 114-5(a) substitution of judge is absolute

and automatic reversal is required for its denial, to honor a defendant’s procedural default would

elevate form over substance. Because all actions of the trial court beyond the erroneous denial of

the motion for substitution are null and void so then would have been the trial judge’s ruling on

any timely filed posttrial motion. See McDuffee, 187 Ill. 2d at 492; see also Kostos, 21 Ill. 2d at

454-55 (other assigned errors held not properly before the court inasmuch as trial judge lost all

power and authority over the case except to make necessary orders to effectuate defendant’s right

to change of venue). More significantly however, in Enoch, our supreme court held that

constitutional issues that were raised at trial and that may be raised later in a postconviction

petition are not subject to waiver. Id. at 190.


¶ 45   As we have previously noted, the right to a substitution of judge has been deemed by our

supreme court to be of constitutional magnitude. Here, the trial court was presented with

defendant’s motion for substitution of judge, the State argued in opposition, and the motion was

considered by the court and then denied. No different issue is presented here on appeal than was

addressed by the trial court. Thus, notwithstanding defendant’s failure to include this issue in a




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posttrial motion and consistent with the holding in Enoch, we deem the issue to be properly

before us. See also People v. Cregan, 2014 IL 113600, ¶¶ 16-18 (2014).


¶ 46   For all of the foregoing reasons, the State’s petition for rehearing is denied.




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