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                                   Appellate Court                             Date: 2018.01.03
                                                                               16:07:58 -06'00'




                      People v. Rosado, 2017 IL App (1st) 143741



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption               JOE ROSADO, Defendant-Appellant.



District & No.        First District, Second Division
                      Docket No. 1-14-3741


Filed                 August 1, 2017
Modified upon
denial of rehearing   September 12, 2017



Decision Under        Appeal from the Circuit Court of Cook County, No. 11-CR-6292; the
Review                Hon. Maura Slattery Boyle, Judge, presiding.



Judgment              Reversed and remanded with directions.


Counsel on            Michael J. Pelletier, Patricia Mysza, and Robert N. Markfield, of State
Appeal                Appellate Defender’s Office, of Chicago, for appellant.

                      Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                      Jon Walters, and Michelle Corda, Assistant State’s Attorneys, of
                      counsel), for the People.



Panel                 JUSTICE HYMAN delivered the judgment of the court, with opinion.
                      Presiding Justice Neville and Justice Mason concurred in the
                      judgment and opinion.
                                              OPINION

¶1       Before this case was tried, a jury acquitted Joe Rosado of delivering, on March 29, 2011, a
     controlled substance to an undercover police investigator. After the acquittal, before a different
     jury but the same judge, Rosado was tried in this case for delivering a controlled substance to
     the same undercover police investigator on March 23, six days before March 29. The State was
     allowed to present testimony that Rosado had sold drugs on March 29; however, Rosado was
     not allowed to tell the jury of his acquittal. On appeal, Rosado challenges both evidentiary
     rulings. We find that the trial court abused its discretion: the March 29 testimony was not
     proper other-crimes evidence, and Rosado should have been allowed to inform the jury of his
     acquittal. We reverse his conviction and remand for a new trial.

¶2                                          BACKGROUND
¶3       In 2011, Rosado was arrested for and charged with a series of drug transactions that
     allegedly took place within a two-week period in March 2011. In case No. 6287, Rosado was
     charged with selling drugs on March 18, 2011. In this case (case No. 6292), he was charged
     with delivering 15 to 100 grams of cocaine within 1000 feet of a high school on March 23,
     2011. Finally, in case No. 6291, he was charged with selling drugs on March 29, 2011. He was
     arrested on April 1, 2011.
¶4       The State elected to try the case involving the March 29 transaction first. Before trial, the
     State moved to admit evidence of both the March 18 and the March 23 incidents as “other
     crimes” evidence. The trial court denied this motion, reasoning that the evidence was more
     prejudicial than probative and that the jury might convict Rosado based on the other-crimes
     evidence. At the jury trial, Rosado argued that his brother, Javier Moreno, had sold the drugs;
     Rosado was acquitted.
¶5       Before trial in this case, the State nevertheless moved to admit evidence of the March 29
     incident as “other crimes” evidence, to show identity. The trial court admitted the evidence
     over Rosado’s objection, without referencing whether the evidence was more probative than
     prejudicial. The trial court also stated that in its opinion, Rosado had only been acquitted
     because the State “did not handle that case correctly because the evidence in the tape on that
     case was quite clear” and that the trial court “would have had a different view” of the evidence
     than the jury that acquitted him. The trial court also denied Rosado’s request to inform the jury
     that he had been acquitted of selling drugs on March 29.
¶6       During opening argument, the State referred to the March 29 drug sale; Rosado’s counsel
     then told the jury that it should not consider the March 29 sale, but concern itself with the
     charges at issue.
¶7       Officer Emerico Gonzalez testified that on March 23, 2011, he was assigned to purchase
     narcotics from Rosado. Gonzalez, wearing civilian clothes and driving a civilian vehicle, was
     the “undercover” officer, while other police officers performed surveillance and enforcement.
     Gonzalez had a recording device, marked money with which to buy the drugs, and a cell phone
     number that had been given to him by Rosado.
¶8       When Gonzalez entered the restaurant, a woman greeted him, and he told her that he was
     looking for Jose. She corrected him and told him he was looking for “Joe Joe.” Gonzalez did
     not see Rosado in the restaurant, so he asked the woman if she could call Joe Joe. The woman


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       did but told Gonzalez that Joe Joe was not answering the phone. Gonzalez called the number
       he had been given, but no one answered. The woman made a second phone call and held a
       conversation. She informed Gonzalez that Joe Joe would be there around 3 p.m. Gonzalez
       walked out of the restaurant to his car and then received a call from Rosado. A recording of this
       call and a transcript (translated into English from Spanish) were presented to the jury:
                    “Gonzalez: I wanted to ask you can we do something today?
                    Answer: What do you want[,] the same thing?
                    Gonzalez: Yea yea, the same thing you gave me before for 800.
                    Answer: Okay can you give me five minutes I’ll call you back, in five minutes.
                    Gonzalez: Five minutes, okay I’ll be waiting for you inside then.”
¶9         Gonzalez went back into the restaurant and sat down at a table. There were two or three
       people in the restaurant. Rosado entered, wearing a brown jacket and light colored pants, and
       gestured to Gonzalez to wait, then went into the kitchen area. Gonzalez saw Rosado’s back.
       After one or two minutes, Rosado gestured for Gonzalez to follow him into the men’s
       restroom. There, Rosado placed a plastic bag containing cocaine on the counter, and Gonzalez
       gave Rosado $800 in marked bills. Gonzalez could see the side and front of Rosado’s face,
       from two or three feet away. Gonzalez placed the bag in his waistband, and both men walked
       out. Gonzalez returned to his car and notified the others of the purchase. The contents of the
       bag tested positive for cocaine. At 4:25 p.m., Gonzalez viewed a photo array and identified
       Rosado as the man who had sold him the drugs. Rosado was arrested on April 1, but Gonzalez
       did not know if any of the marked bills had been recovered after the arrest.
¶ 10       Gonzalez knew Rosado’s brother, Javier Moreno, because he also was investigating
       Moreno for drug sales. Both brothers were Hispanic with black hair, brown eyes, and goatees.
       Gonzalez compared pictures of both men and testified that their hairlines and facial hair were
       slightly different and that Rosado is slightly older and taller than Moreno. Both brothers spoke
       Spanish but had different voices and mannerisms and different cell phone numbers. Gonzalez
       testified that the man he spoke to and purchased drugs from on March 23 was Rosado, not
       Moreno, because Moreno had a tattoo on his hands and the man in the restroom did not have
       that tattoo. Moreno’s picture was not in the photo array viewed by Gonzalez.
¶ 11       Gonzalez went on to describe an undercover drug purchase made six days later, on March
       29. This transaction took place in Gonzalez’s car outside the same restaurant, and he bought
       4½ ounces of cocaine from Rosado for $3100. He denied purchasing drugs from Moreno on
       March 29.
¶ 12       Gonzalez stated that he had seen Rosado and purchased drugs from him before March 23,
       but he did not remember the date. It was possible that he had talked to Moreno on March 24,
       25, or 26 and possibly bought drugs from Moreno on March 24 and 26.
¶ 13       Officer Robert Ramirez testified that he was an enforcement officer during the March 23
       drug purchase, stationed near the restaurant. After the purchase, Ramirez used a police
       computer to generate a photo array. Ramirez knew that Rosado’s picture was in the photo array
       and knew which photo was Rosado’s. He presented the array to Gonzalez, who identified
       Rosado. Ramirez also worked on the March 29 investigation but did not present a photo array
       to Gonzalez after that purchase.
¶ 14       Officer David Torres testified that on March 23, he was working as a surveillance officer.
       Torres parked in a car at the northwest corner of the intersection (kitty-corner from the

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       restaurant) with the car facing away from the restaurant. Torres remained in his car throughout.
       He saw Gonzalez arrive in a civilian car and go into the restaurant, then return to his car a few
       minutes later. Gonzalez had a phone conversation, then re-entered the restaurant. A few
       minutes later, a man with a goatee and wearing a brown jacket and light colored pants entered
       the restaurant. Torres saw the man’s profile and identified him as Rosado. A few minutes later,
       Torres heard a radio report from Gonzalez that the drug transaction had been successful. Torres
       also testified that he had worked as a surveillance officer on March 29. He testified that he did
       not see Moreno on March 29 or March 23, did not see Rosado on March 29, and did not know
       if Moreno had been in the restaurant on March 23.
¶ 15       Officer Joseph Watson testified that during the March 29 drug purchase, he was assigned to
       surveillance and was parked on the north side of Cermak Road, across the street from the
       restaurant. Watson saw Rosado driving a white Ford Expedition and turning off Cermak onto
       Christiana Avenue. Gonzalez had already parked outside the restaurant and gone inside.
       Rosado parked on Christiana and also went inside; Watson could see Rosado’s back but did not
       remember what Rosado wore. After a few minutes, Gonzalez and Rosado left the restaurant
       and got into Gonzalez’s car; then Rosado went back into the restaurant, and Gonzalez alerted
       the other officers of a drug purchase. Watson could not see what had occurred in Gonzalez’s
       car. Watson also worked as a surveillance officer on March 23, again parked across the street
       from the restaurant. He denied seeing Moreno on either March 23 or March 29.
¶ 16       During closing arguments, the State referred to the March 29 purchase, arguing that the
       purchase identified Rosado because of its similarities to the March 23 purchase. Rosado’s
       counsel argued that Gonzalez had little opportunity on March 29 to successfully identify
       Rosado and that Gonzalez had confused Rosado for his brother, Moreno, who was being
       investigated during the same time frame. The trial court instructed the jury on the other-crimes
       evidence: “Evidence has been received that the defendant has been involved in an offense
       other than that charged in the indictment. This evidence has been received on the issue of the
       defendant’s identification and may be considered by you only for that limited purpose. It is for
       you to determine whether the defendant was involved in that offense, and, if so, what weight
       should be given to this evidence on the issue of identification.”
¶ 17       The jury found Rosado guilty. In his posttrial motion, Rosado argued that the trial court
       erred in admitting evidence of the March 29 drug sale and in disallowing evidence of his
       acquittal for that sale. The trial court denied the motion and sentenced Rosado to seven years of
       imprisonment. (Rosado pleaded guilty to the March 18 drug sale.)

¶ 18                                   STANDARD OF REVIEW
¶ 19      We review the admission of the other-crimes evidence and the trial court’s decision not to
       admit evidence of the acquittal for an abuse of discretion. See People v. Wilson, 214 Ill. 2d 127,
       136 (2005). An abuse of discretion occurs when a trial court’s decision is “arbitrary, fanciful,
       or unreasonable to the degree that no reasonable person would agree with it.” (Internal
       quotation marks omitted.) People v. Lerma, 2016 IL 118496, ¶ 23.




                                                   -4-
¶ 20                                             ANALYSIS
¶ 21                                Admission of Other-Crimes Evidence
¶ 22       Rosado first contends that the trial court abused its discretion in admitting evidence of the
       March 29 drug sale as other-crimes evidence. Other-crimes evidence is inadmissible to show a
       defendant’s propensity to commit crime because a jury might convict the defendant not based
       on the evidence adduced at trial, but on the notion that defendant deserves punishment. People
       v. Placek, 184 Ill. 2d 370, 385 (1998). Such evidence can be admitted, however, to prove
       intent, modus operandi, identity, motive, absence of mistake, or any relevant, material fact
       other than propensity. People v. Donoho, 204 Ill. 2d 159, 170 (2003). But even when this
       evidence is admissible, the trial court still must weigh its prejudicial effect versus its probative
       value and exclude it if its prejudicial effect substantially outweighs its probative value. Placek,
       184 Ill. 2d at 385. The State’s proof of the other crime need not be beyond a reasonable doubt
       “but must be more than a mere suspicion.” People v. Davis, 248 Ill. App. 3d 886, 893 (1993).
       And “the mere fact of acquittal does not necessarily mean that [the] defendant did not commit
       the alleged other offense.” People v. Baldwin, 2014 IL App (1st) 121725, ¶ 73.
¶ 23       The State argues that Officer Gonzalez’s identification of Rosado was the core issue at trial
       and the March 29 evidence “lent credibility to the officers’ identification of [Rosado], showed
       that a relationship between the parties was established, and gave a more complete picture of the
       crime charged.” In support, the State directs us to People v. Vazquez, 180 Ill. App. 3d 270
       (1989). But Vazquez actually illustrates the evidentiary problem with the State’s argument.
¶ 24       Vazquez was charged with two counts of selling drugs, once on June 12 and another sale
       on July 2. Id. at 276. The State chose to try Vazquez for the July 2 sale and used evidence of the
       June 12 sale. Id. The Vazquez court accepted this evidence to refute Vazquez’s defense that he
       had not been involved in the July 2 sale, to bolster the State’s identification of Vazquez as the
       seller, and to show the relationship between buyer and seller. Id. at 278.
¶ 25       What occurred here is precisely backwards from Vazquez. There, the evidence used was of
       a prior sale. The officers could successfully identify Vazquez on July 2 and were able to buy
       drugs with ease because they recognized him from June 12 and had already established a
       buyer-seller relationship. Here, the State submitted evidence from a later sale, on March 29.
       But the officers did not explain how their ability to recognize Rosado on March 23, both in
       person and in the photo array that same day, was somehow increased based on what they saw
       six days later on March 29. Further, the March 29 evidence could not explain how the
       buyer-seller relationship had already been established on March 23. (The same logical problem
       applies to another case cited by the State, People v. Bowman, 227 Ill. App. 3d 607 (1992),
       where a witness testified that she recognized the defendant from a previous drug sale.)
¶ 26       The trial court abused its discretion in admitting this evidence because it could not bolster
       identification (the only basis on which it was admitted) and had no other relevance; it also was,
       as such, more prejudicial than probative.

¶ 27                                Evidence of Rosado’s Acquittal
¶ 28       Rosado further argues that the trial court erred in not allowing him to inform the jury that
       he already had been tried and acquitted of the March 29 drug sale. Rosado relies primarily on
       People v. Ward, 2011 IL 108690.



                                                    -5-
¶ 29        Ward was accused of sexually assaulting two women, M.M. and L.S. Id. ¶¶ 5-6. Ward was
       first tried for assaulting L.S. but was acquitted after arguing that L.S. had consented. Id. ¶ 5. In
       the M.M. trial, the State asked to admit evidence of the assault on L.S. under section 115-7.3 of
       the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 2006)), which allows
       admission of prior sexual crimes to show propensity. People v. Ward, 2011 IL 108690, ¶ 7.
       The trial court allowed this evidence but ruled that Ward’s counsel could not present evidence
       that he had already been tried and acquitted of assaulting L.S. Id. ¶ 10. L.S. testified at the
       M.M. trial and briefly referred to the fact that she had testified before. Id. ¶ 14. The jury was
       instructed multiple times that it must decide whether Ward had committed the offense against
       L.S. and how much weight to give to that evidence. Id. ¶ 15.
¶ 30        The Illinois Supreme Court held that the trial court abused its discretion in excluding the
       evidence of Ward’s acquittal. The supreme court determined that the acquittal was certainly
       probative of the issue, since “the complete absence of any reference to the outcome in that case
       severely restricted defendant’s ability to convey a complete context for L.S.’s allegations.” Id.
       ¶ 39. And the potential for unfair prejudice was high, given the inflammatory nature of the
       allegations, and the jury instruction that Ward had been “involved in an offense” implied that
       Ward had been charged, and perhaps convicted, of assaulting L.S. (Emphasis and internal
       quotation marks omitted.) Id. ¶¶ 44-45. Finally, the court held that the error was not harmless,
       as the propensity evidence was quite important in a case where the sole issue in dispute was
       Ward’s consent defense. Id. ¶ 49.
¶ 31        The State argues that Ward is distinguishable because the evidence of the March 29 drug
       sale was not overly inflammatory and was used for identification purposes instead of
       propensity and that the acquittal was not obviously relevant to the identification. Ward indeed
       differs, particularly in that the other-crimes evidence in Ward was admitted as propensity
       evidence under a specific statute, as opposed to this case, where the evidence could only be
       admitted as something other than propensity under the standard rules of evidence. And the
       evidence of the March 29 transaction was certainly not inflammatory as was L.S.’s description
       of sexual assault.
¶ 32        But nowhere does Ward limit its holding to prior cases of sexual assault admitted under
       section 115-7.3 or to cases involving emotional, wrenching testimony from sympathetic
       victims. Ward’s holding, which enforces the familiar principles of relevance, probative value,
       and unfair prejudice, applies with equal force here.
¶ 33        The State argues that “the acquittal was not directly relevant to identity.” We do not know
       whether that is true, as we will never know the jury’s reasoning. But in both the March 23 and
       March 29 cases, the central question was identification, enough to invoke Ward’s holding.
¶ 34        Rosado relies on People v. Bedoya, 325 Ill. App. 3d 926 (2001), where Bedoya’s
       conviction was reversed because the jury was not told that Bedoya had been acquitted of
       aggravated discharge of a firearm, though that charge was used as other-crimes evidence in a
       subsequent trial. The State attempts to distinguish Bedoya by arguing that the jury instruction
       given to Rosado’s jury was less prejudicial than that given in Bedoya. Contrary to the State’s
       representation, the jury in this case appears to have been given the same instruction as in
       Bedoya, the pattern instruction: “Evidence has been received that the defendant has been
       involved in an offense other than that charged in the indictment,” and the jury must determine
       “whether the defendant was involved in that offense.” Illinois Pattern Jury Instructions,
       Criminal, No. 3.14 (3d ed. 1992). Like the Bedoya court, we also are concerned that “[t]he jury

                                                    -6-
       could have been left with the false impression that those ‘offenses’ were alive and pending.”
       Bedoya, 325 Ill. App. 3d at 943. The acquittal definitely relates to one of the tasks given by the
       instruction: determining whether Rosado was, in fact, involved in the March 29 offense.
¶ 35       The trial court should have allowed Rosado to introduce evidence of his acquittal. The
       acquittal was relevant, in that it made “the existence of any fact that is of consequence to the
       determination of the action more probable or less probable.” Ill. R. Evid. 401 (eff. Jan. 1,
       2011). And it was highly probative on the crucial issue of identification. Did the police officers
       (especially Officer Gonzalez) recognize the man who sold the drugs on March 23 as Rosado?
       Or did they have him mixed up with his brother Moreno, who was also being investigated by
       the same officers during the same time period? The evidence of the March 29 acquittal would
       have provided the jury with a “complete context” for Officer Gonzalez’s allegations that
       Rosado had sold him drugs that day—especially in light of Officer Gonzalez’s vehement
       protestations that Rosado, not Moreno, had sold the drugs on March 29. The acquittal would
       have strongly impeached Officer Gonzalez’s testimony, and he was the most consequential
       witness against Rosado—the only officer who saw the drug seller up close.
¶ 36       When admitting other-crimes evidence, we often warn trial courts not to allow a
       “mini-trial” on the other crime, since that could confuse the jury and waste time. Ward, 2011
       IL 108690, ¶ 39. But if a trial court is going to admit it, the trial court must do so equitably.
       Rosado should have been allowed to tell the jury about the acquittal.
¶ 37       Beyond these timeworn evidentiary rules, a question of basic fairness must be dealt with.
       The State chose to try the March 29 case before the March 23 case. Rosado, for whatever
       reason, was acquitted. And yet, the State was allowed to proceed with the March 23 case as
       though the acquittal never happened and re-present the March 29 evidence to a second jury,
       forcing Rosado to defend himself again. Further, the trial court allowed the State to use
       other-crimes evidence in this case after having denied leave to do so in the March 29 case,
       concluding there that the evidence was more prejudicial than probative. The record does not
       reveal a sound reason for why the trial court made an about-face and ruled to the contrary here.
       Both in terms of logic and fairness, the trial court’s decision was “unreasonable” and an abuse
       of discretion.

¶ 38                                  The Errors Are Not Harmless
¶ 39       The State argues that overwhelming evidence of guilt shows that any errors were harmless
       beyond a reasonable doubt. See People v. Patterson, 217 Ill. 2d 407, 434 (2005). But the
       State’s brief then equates “overwhelming” evidence with evidence that is “not closely
       balanced.” “Closely balanced” is part of a plain error analysis, not harmless error. People v.
       Thompson, 238 Ill. 2d 598, 613 (2010). Many attorneys (and judges, for that matter) find this
       area of law confusing, and we will not further muddy the waters by importing “not closely
       balanced” into harmless error analysis.
¶ 40       Improper admission of other-crimes evidence is harmless if the defendant has not been
       prejudiced or denied a fair trial, and the State must show beyond a reasonable doubt that the
       result would have been the same without the improper admission. People v. Gregory, 2016 IL
       App (2d) 140294, ¶ 28. We will consider whether the other-crimes evidence was a “material
       factor” in the conviction. Id.
¶ 41       The State has not shown that these errors were harmless beyond a reasonable doubt.
       Officer Gonzalez spoke with someone who answered Rosado’s cell phone and discussed a

                                                   -7-
       drug transaction, but the conversation was short, and the other party did not identify himself.
       None of the other officers saw the drug seller up close; they were parked on the opposite side of
       the intersection from the restaurant. The case depended on Officer Gonzalez, who had also
       been investigating Moreno at the same time and admitted he could not remember which days
       he had bought drugs from Moreno. There was no physical evidence tying the drugs or the
       money to Rosado. Officer Gonzalez’s testimony might have been sufficient to support a
       conviction, but that is not the same thing as “overwhelming” evidence. See People v. Hogan,
       388 Ill. App. 3d 885 (2009) (finding evidence was sufficient to support conviction, but not
       overwhelming for harmless error analysis). So the March 29 evidence was a “material factor”
       in the jury’s decision.

¶ 42                   Instructions on Remand on Denial of Petition for Rehearing
¶ 43       Rosado is entitled to a new trial. In our original opinion, we remanded the case to the
       presiding judge of the criminal division of the circuit court with instructions that the case be
       assigned to a different judge for any further proceedings, under Illinois Supreme Court Rule
       366(a)(5) (eff. Feb. 1, 1994). The State has now petitioned for rehearing, arguing that we do
       not have that power under Rule 366 and that we failed to explain our reasoning for those
       instructions. Indeed, we did not explain—out of a desire to spare the trial court some
       embarrassment. But since the State asks for an explanation, we will provide one.
¶ 44       In ruling on the other-crimes issue, the trial court made specific comments regarding the
       jury’s verdict in acquitting Rosado on the March 29 transaction. The judge stated that the
       evidence against Rosado was “quite clear.” It attributed the acquittal to the prosecutors not
       asking the right questions and leaving issues “up in the air,” which allowed Rosado’s attorneys
       to argue reasonable doubt.
¶ 45       Here, the trial court reversed its own evidentiary rulings between cases (for no discernible
       reason) and then made a lengthy statement indicating its belief in Rosado’s guilt. We have not
       ordered the case reassigned due to trial court error in its evidentiary rulings. See People v.
       White, 2017 IL App (1st) 142358, ¶ 43 (though trial court’s evidentiary rulings were
       erroneous, reviewing court will not reassign matter on remand because there was “no
       indication that the court will not follow the law on remand”). Outward appearances would
       suggest that the trial court changed its evidentiary rulings in the second case to ensure that
       Rosado was not acquitted again. This raises the type of situation that requires reassignment, to
       avoid even the appearance of bias. See, e.g., People v. Montanez, 2016 IL App (1st) 133726,
       ¶ 44 (on remand for third-stage postconviction proceedings, case should be reassigned where
       original postconviction judge “has already ruled that no contrary verdict could ever stand” and
       “expressed a disregard for the evidence presented”).
¶ 46       The State argues that we do not have the power to reassign the case under Rule 366, which,
       it maintains, is reserved only for civil cases. But many courts have ruled otherwise and used
       Rule 366 for reassignment in criminal cases. See Eychaner v. Gross, 202 Ill. 2d 228, 279
       (2002) (Rule 366 authority “includes the power to reassign a matter to a new judge on
       remand”); White, 2017 IL App (1st) 142358, ¶ 42; Montanez, 2016 IL App (1st) 133726, ¶ 44;
       People v. Serrano, 2016 IL App (1st) 133493, ¶ 45; People v. Tally, 2014 IL App (5th)
       120349, ¶ 43.
¶ 47       The State has cited no direct authority for its argument. Instead, it argues that our powers
       are instead governed by Illinois Supreme Court Rule 615. That rule allows us to “set aside,

                                                   -8-
       affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment
       or order from which the appeal is taken.” Ill. S. Ct. R. 615(b). But, the State argues, since those
       powers have been limited by the supreme court in a completely different context, we do not
       have the power to direct the presiding judge of the criminal division to reassign the case. While
       in People v. Castleberry, 2015 IL 116916, ¶ 26, the supreme court ruled that an appellate court
       did not have the power under Rule 615 to modify an illegal sentence, the Castleberry court was
       not asked and did not rule on whether an appellate court has the same power to reassign a case
       under Rule 615 as it does under Rule 366. This judicial power is necessary for an appellate
       court, and we can see no reason why we should have that power in civil cases but not in
       criminal ones. The petition for rehearing is denied.

¶ 48      Reversed and remanded with directions.




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