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                              Appellate Court                            Date: 2019.08.12
                                                                         10:08:30 -05'00'



                  People v. Patel, 2019 IL App (2d) 170766



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           NILESH H. PATEL, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-17-0766



Filed             March 15, 2019



Decision Under    Appeal from the Circuit Court of Du Page County, No. 17-DT-1954;
Review            the Hon. Jeffrey S. MacKay and the Hon. Paul A. Marchese, Judges,
                  presiding.



Judgment          Reversed.


Counsel on        Jason M. Kunowski, of Ramsell & Associates, L.L.C., of Wheaton,
Appeal            for appellant.

                  Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
                  and Mary A. Fleming, Assistant State’s Attorneys, of counsel), for the
                  People.



Panel             JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                  Presiding Justice Birkett and Justice Schostok concurred in the
                  judgment and opinion.
                                              OPINION

¶1       At issue in this appeal is whether the statutory summary suspension of the driving
     privileges of defendant, Nilesh H. Patel, should have been rescinded because the State’s delay
     in tendering the discovery he requested denied him a timely and meaningful hearing. We
     determine that the summary suspension should have been rescinded. Accordingly, we reverse.

¶2                                         I. BACKGROUND
¶3        On August 12, 2017, defendant was charged with two counts of driving while under the
     influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2) (West 2016)), improper lane usage (id.
     § 11-709(a)), and speeding (id. § 11-601(b)). Defendant was advised that his driving privileges
     would be summarily suspended. When he posted bond that same day, he was ordered to appear
     in court on September 14, 2017. On August 14, 2017, defendant petitioned to rescind the
     summary suspension of his driving privileges (see id. § 2-118.1(b)). Along with that petition,
     defendant filed and served on the State motions for discovery and notices to produce pursuant
     to Illinois Supreme Court Rules 214 (eff. July 1, 2014) and 237 (eff. July 1, 2005). The
     discovery requests included, among other things, the booking room video and the breath test
     accuracy-check records. The State filed no objections to any of the requests.
¶4        On September 8, 2017, the State ordered all of the requested materials from the arresting
     police department. On September 14, 2017, the first scheduled court date (31 days following
     the filing of the petition to rescind), the parties appeared on defendant’s petition. Before any
     hearing began, defendant told the court (Judge Jeffrey S. MacKay, presiding) that he wanted
     to resolve the State’s failure to comply with his discovery requests. After the court noted that
     no motion to compel was in the record, defendant apparently tendered to the court a written
     motion. That motion is not in the record before this court.
¶5        The prosecutor advised the court that, although the State had made a good faith effort to
     comply with defendant’s discovery requests, it did not yet have the materials defendant wanted.
     The prosecutor did not elaborate on what precisely constituted this good faith effort. However,
     the prosecutor agreed that all of the materials that defendant sought were relevant and
     discoverable, and he indicated that he would have those materials for defendant the following
     week at the latest. After advising the court that the parties had not held any conference pursuant
     to Illinois Supreme Court Rule 201(k) (eff. July 1, 2014), the prosecutor said that the State was
     ready to proceed on defendant’s petition to rescind.
¶6        Defendant told the court that he had tried to talk to the prosecutor that morning about the
     discovery requests. The prosecutor asserted that that conversation, which consisted solely of
     the parties’ agreement to present the problem to the court, did not amount to a conference as
     required under Rule 201(k). Defendant then indicated that he was not ready to proceed on his
     petition. He asked the court to attribute to the State the delay in holding a hearing or,
     alternatively, to infer that the requested discovery materials were favorable to him.
¶7        Over defendant’s objection, the court (1) held defendant’s motion to compel in abeyance,
     (2) ordered the State to produce the requested discovery by September 21, 2017, which was
     the next court date, and (3) tolled the statutory period in which defendant was entitled to a
     hearing (see 625 ILCS 5/2-118.1(b) (West 2016)). In doing so, the court noted that, while it
     understood why defendant was not answering ready to proceed on his petition, as he did not


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       have the information he wanted from the State, the court believed that barring any evidence or
       rescinding defendant’s suspension was “too harsh” a sanction to impose on the State.
¶8         On September 21, 2017, defendant filed a motion to rescind the suspension, arguing that
       he was entitled to a rescission because he was not given a timely hearing. In court that day, the
       prosecutor advised the court (Judge Paul A. Marchese, presiding) that the State had now
       complied with all of the discovery requests. Defendant asked the court to rescind the
       suspension because the delay in holding the hearing on the petition was attributable to the
       State. The court refused to do so, observing that, given that the State had tendered discovery
       to defendant, the issue of the State’s failure to comply was moot. The court also noted that,
       mootness aside, there was no indication that the parties had participated in a Rule 201(k)
       conference, which was necessary before any sanction could be imposed on the State.
¶9         The court subsequently denied defendant’s petition to rescind, and this timely appeal
       followed.

¶ 10                                          II. ANALYSIS
¶ 11       At issue in this appeal is whether the statutory summary suspension of defendant’s driving
       privileges should have been rescinded because the State’s delay in tendering to defendant the
       discovery he requested denied him a timely and meaningful hearing. The answer depends on
       whether the trial court properly attributed the delay between September 14 and September 21,
       2017, to defendant rather than to the State. For the reasons that follow, we hold that the delay
       was attributable to the State. Accordingly, defendant did not receive a hearing within the time
       prescribed by law, and he was entitled to a rescission of his statutory summary suspension.
¶ 12       Proceedings on a petition to rescind the statutory summary suspension of a defendant’s
       driving privileges are civil. People v. Pollitt, 2011 IL App (2d) 091247, ¶ 13. Thus, the
       defendant bears the burden of proof. If he establishes a prima facie case for rescission, the
       burden shifts to the State to present evidence justifying the suspension. Id.
¶ 13       Section 2-118.1(b) of the Illinois Vehicle Code (625 ILCS 5/2-118.1(b) (West 2016))
       provides that a defendant “shall” be given a hearing on his petition to rescind within 30 days
       after the petition is received or on the first appearance date. 1 “The word ‘shall’ conveys that
       the legislature intended to impose a mandatory obligation.” People v. Moreland, 2011 IL App
       (2d) 100699, ¶ 8. That obligation is fulfilled when the defendant is given a timely hearing. See
       id. The failure to comply with the requirements of section 2-118.1(b) results in the rescission
       of the suspension, unless the delay is “occasioned by the defendant.” In re Summary
       Suspension of Driver’s License of Trainor, 156 Ill. App. 3d 918, 923 (1987); see also
       Moreland, 2011 IL App (2d) 100699, ¶ 10 (“[A] defendant is not entitled to a rescission if the
       defendant caused the hearing to be delayed.”). Here, defendant filed his petition to rescind on
       August 14, 2017, but the hearing did not occur until September 21, 2017, which was one week




           1
            In People v. Schaefer, 154 Ill. 2d 250, 253 (1993), our supreme court explained that the statute
       “created two alternative dates for [a] hearing on a defendant’s challenge to [a] summary suspension:
       (1) on the first court date set in the traffic citation issued to the [defendant] ***; or (2) within 30 days
       of a defendant’s written request for a hearing on his petition to rescind.”

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       after the first appearance date 2 and 38 days after defendant filed his petition to rescind. The
       hearing was timely only if the trial court was correct in attributing the one-week delay between
       September 14 and 21, 2017, to defendant (in the trial court’s words, “toll[ing] Trainor” during
       that period).
¶ 14        Courts have analogized section 2-118.1(b) of the Illinois Vehicle Code to the criminal
       speedy-trial statute. See People v. Cosenza, 215 Ill. 2d 308, 316 (2005) (“In our view, our
       analogy to the speedy-trial provisions is justified by the fact that both the speedy-trial
       provisions and the time provision contained in section 2-118.1(b) serve to provide due-process-
       based time limitations for judicial proceedings to adjudicate deprivations of rights or
       privileges.”); People v. Guillermo, 2016 IL App (1st) 151799, ¶ 25 (citing a criminal speedy-
       trial case to support the conclusion that an agreed continuance temporarily suspended the
       running of section 2-118.1(b)). For purposes of the criminal speedy-trial statute, a reviewing
       court reviews for an abuse of discretion the trial court’s decision to attribute time to the
       defendant. People v. Mayo, 198 Ill. 2d 530, 535 (2002).
¶ 15        The record does not support a conclusion that defendant occasioned the delay between
       September 14 and 21, 2017. Defendant issued his discovery requests on August 14, 2017, the
       same day that he filed his petition to rescind the statutory summary suspension. The State
       conceded both at the trial level and on appeal that defendant was entitled to the discovery that
       he requested. See, e.g., People v. Orth, 124 Ill. 2d 326, 340 (1988) (accuracy of breath-testing
       device relevant at hearing on petition to rescind suspension of driving privileges); People v.
       Tsiamas, 2015 IL App (2d) 140859, ¶¶ 14-16 (recordings made in connection with defendant’s
       arrest relevant at hearing on petition to rescind the suspension of driving privileges). In fact,
       during oral argument on appeal, the State acknowledged that the materials that defendant
       requested were “integral to his case,” that he was “on the ball,” and that he “wasn’t at fault.”
       The State nevertheless represented at oral argument that the prosecutor produced “almost
       everything” to defendant on September 14, 2017, the first appearance date, seemingly
       suggesting that the State had substantially complied with discovery as of that date. The State
       later acknowledged, however, that the record was silent as to what materials were turned over
       on that date. We find no confirmation in the record that the State produced any discovery to
       defendant on or before the September 14, 2017, court date.
¶ 16        The State has never disputed that it would have been feasible to produce all responsive
       discovery to defendant prior to September 14, 2017, had the State acted on defendant’s requests
       in a more timely fashion. The record shows that the State simply failed to make any effort
       toward procuring the requested materials until September 8, 2017—25 days after defendant
       served his requests on the State. By that time, the first appearance date was less than a week
       away. Conspicuously absent from the record is any excuse from the prosecutor as to why it
       took 25 days to begin the process of procuring the materials or why the process could not be
       expedited once the prosecutor learned that the materials might be unavailable for the
       September 14, 2017, court date. Apart from asserting in a conclusory fashion in court on
       September 14, 2017, that the State had “made a good-faith effort to comply with all of the


           2
             In People v. Mizaur, 376 Ill. App. 3d 1066, 1067 (2007), we held that a court date set out in a
       defendant’s bail bond constitutes the “first appearance date” for purposes of section 2-118.1(b) of the
       Illinois Vehicle Code.

                                                      -4-
       documents [defendant] has requested,” the prosecutor made no attempt to demonstrate that the
       State was diligent in acting on defendant’s requests.
¶ 17        Moreover, the prosecutor’s answer that the State was “ready” for the hearing on September
       14, 2017, unfairly shifted to defendant the burden of the State’s noncompliance with discovery.
       The State put defendant in the untenable position of having to either (1) proceed to a timely
       hearing that day without the materials that were needed to attempt to establish a prima facie
       case for rescission or (2) answer “not ready” for the hearing, thereby acquiescing to a
       continuance for purposes of tolling the time requirements contained in section 2-118.1(b) of
       the Illinois Vehicle Code. See Guillermo, 2016 IL App (1st) 151799, ¶ 25 (holding that an
       agreed continuance “temporarily suspended the running of the period within which a hearing
       on the defendant’s petition to rescind had to be held”).
¶ 18        Under these circumstances, the delay of the rescission hearing between September 14 and
       21, 2017, should have been attributed to the State rather than to defendant. Consequently, we
       determine that the trial court abused its discretion in ruling otherwise, i.e., in its decision to
       “toll Trainor” for one week while the State complied with its discovery obligations.
       Accordingly, when defendant moved on September 21, 2017, for a rescission based on the
       passage of more than 30 days without a hearing, the trial court should have granted the motion.
¶ 19        The State frames the issue in this appeal as whether the trial court properly refused to
       sanction the State for its discovery violation by granting the rescission petition. However, our
       holding has nothing to do with discovery sanctions. As explained above, unless defendant
       occasioned the delay in the proceedings, he was entitled to a hearing that complied with the
       time constraints of section 2-118.1(b) of the Illinois Vehicle Code. See People v. Schaefer, 154
       Ill. 2d 250, 262-64 (1993); Moreland, 2011 IL App (2d) 100699, ¶ 10. He was also entitled to
       a hearing that was meaningful as opposed to pro forma. See People v. Shaffer, 134 Ill. App.
       3d 548, 550 (1985). In the absence of any excuse from the prosecutor as to why the State failed
       to timely produce the requested materials—which were admittedly discoverable and even
       integral to the defense—and in the absence of any justification by the trial court for attributing
       the time to defendant, there is simply no basis to conclude that defendant occasioned the delay
       of the hearing.
¶ 20        The State urges, and the trial court found, that defendant failed to comply with Rule 201(k)
       before presenting his motion to compel on September 14, 2017. That rule provides:
                “The parties shall facilitate discovery under these rules and shall make reasonable
                attempts to resolve differences over discovery. Every motion with respect to discovery
                shall incorporate a statement that counsel responsible for trial of the case after personal
                consultation and reasonable attempts to resolve differences have been unable to reach
                an accord or that opposing counsel made himself or herself unavailable for personal
                consultation or was unreasonable in attempts to resolve differences.” Ill. S. Ct. R.
                201(k) (eff. July 1, 2014).
       The record demonstrates defendant’s compliance with Rule 201(k). Pursuant to Illinois
       Supreme Court Rule 214(a) (eff. July 1, 2014), the State was obligated to tender discovery to
       defendant within 28 days, by September 11, 2017. On September 14, 2017, prior to presenting
       a motion to compel, defense counsel asked the court to pass the case so that he could continue
       conferring with the prosecutor about discovery (“Can we pass this? I’m trying to work this out
       with the state.”). When the matter was recalled, defense counsel informed the court that he had
       spoken to the prosecutor about what the State “did not have and wasn’t capable of producing.”

                                                    -5-
       The prosecutor complained to the court that defense counsel had failed to offer to work things
       out or to get another date the next week. What the prosecutor was essentially arguing, and what
       the court essentially found, was that Rule 201(k) required defense counsel to waive defendant’s
       rights under section 2-118.1(b) of the Illinois Vehicle Code by agreeing to a continuance. We
       are aware of no authority indicating that defense counsel was required to do so. Furthermore,
       nothing in the record suggests that defendant was aware much before September 14, 2017, that
       the State would be unable to tender discovery in court that day. When it became clear that the
       State could not produce discovery on September 14, 2017, defense counsel appropriately
       discussed the matter with the prosecutor before presenting a motion to compel. Under the
       circumstances, and in light of the expedited nature of the rescission proceedings at hand, it is
       not apparent what more defense counsel could have done on September 14, 2017, to resolve
       the discovery issues, short of waiving his client’s right to a timely hearing.

¶ 21                                         III. CONCLUSION
¶ 22       For the reasons stated, we reverse the judgment of the circuit court of Du Page County
       denying defendant’s petition to rescind the statutory summary suspension of his driving
       privileges. The clerk of this court shall immediately notify the Secretary of State that
       defendant’s statutory summary suspension has been rescinded. See 625 ILCS 5/2-118.1(b)
       (West 2016) (“Upon the conclusion of the judicial hearing, the circuit court shall sustain or
       rescind the statutory summary suspension or revocation and immediately notify the Secretary
       of State.”); Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (authorizing a reviewing court to “enter
       any judgment and make any order that ought to have been given or made”).

¶ 23      Reversed.




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