People v. Harris

2022 IL App (4th) 220250-U

Opinion

NOTICE 2022 IL App (4th) 220250-U FILED This Order was filed under October 13, 2022 Supreme Court Rule 23 and is NO. 4-22-0250 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL IN THE APPELLATE COURT under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County RAKEEM D. HARRIS, ) No. 21DT690 Defendant-Appellant. ) ) Honorable ) J. Jason Chambers, ) Judge Presiding.

JUSTICE ZENOFF delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding the circuit court (1) properly denied defendant’s petition to rescind his summary suspension, (2) did not find defendant’s motion to reconsider untimely, and (3) was not required to perform a preliminary Krankel inquiry.

¶2 Defendant, Rakeem D. Harris, appeals from the McLean County circuit court’s

judgment denying his petition to rescind the summary suspension of his driver’s license.

Defendant, pro se, argues the circuit court erred when it (1) denied his petition, (2) found his

motion to reconsider untimely, and (3) failed to perform a preliminary inquiry pursuant to People

v. Krankel, 102 Ill. 2d 181 (1984). The State argues the circuit court (1) properly denied the

petition, (2) never ruled defendant’s motion to reconsider was untimely, and (3) was not

obligated to conduct a preliminary Krankel inquiry. We agree with the State and affirm the

circuit court’s judgment. ¶3 I. BACKGROUND

¶4 In November 2021, the State charged defendant via citation and complaint with

driving under the influence (DUI) (625 ILCS 5/11-501(a)(2) (West 2020)). Defendant refused to

submit to chemical testing, and his driving privileges were therefore summarily suspended

pursuant to section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1

(West 2020)), to be effective January 5, 2022. In December 2021, defendant, represented by

private counsel, filed a petition to rescind the statutory summary suspension of his driving

privileges. Specifically, defendant argued the arresting officer did not have reasonable grounds

(1) to stop defendant’s vehicle and (2) to believe defendant was driving while under the

influence of alcohol.

¶5 A. Petition to Rescind Summary Suspension Hearing

¶6 On January 25, 2022, the circuit court held a hearing on defendant’s petition.

¶7 1. Defendant

¶8 At the hearing, defendant testified he was stopped by police officers around 4 a.m.

on November 16, 2021, on East Hamilton Road in Bloomington, Illinois. That evening,

defendant had been visiting a woman when he decided to take a drive. Immediately prior to

being stopped, defendant was driving westbound on East Hamilton, where he then proceeded

right onto Commerce Parkway, and turned right again onto Veterans Parkway.

¶9 As he turned right onto Veterans from Commerce, defendant observed a car pass

by him “going fast.” Defendant remembered the vehicle “resembled a [Dodge] Charger,” as it

had a popular style of “racetrack” taillights similar to that of a Dodge Charger and other vehicles.

Defendant himself was driving a Dodge Charger that evening.

-2- ¶ 10 From Veterans, defendant turned right again onto Morrissey Drive, making a

loop. On Morrissey Drive, defendant observed a police officer activate his patrol car’s lights, and

defendant turned left onto Hamilton where he stopped. After stopping defendant, the officer

informed him he was being pulled over for “speeding over the bridge on Veterans Parkway.”

Defendant explained it was not his car, he was not coming from that direction, and had not been

on the bridge going eastbound on Veterans at all. Defendant denied ever speeding, drinking

alcohol, driving erratically, or having any other difficulty operating his vehicle.

¶ 11 Defendant testified he was asked to step out of his vehicle, which he did. At this

point, he was not asked to perform any field sobriety tests or provide a breath sample. Defendant

was placed under arrest for speeding and was later transported to the police station, where he

refused to perform field sobriety tests.

¶ 12 On cross-examination, defendant agreed he did not exit his vehicle for about 15

minutes after being asked to do so several times by police officers. Defendant claimed he did not

“so much [refuse],” but rather “explained to them that they had the wrong person.” Defendant

admitted that when asked to produce his driver’s license, he could not do so because he did not

have it with him and instead provided his passport card. Defendant agreed that a police officer

informed defendant he was “traveling 92 [miles per hour],” and that the officer “showed [him] a

radar gun.” Defendant denied being able to see a reading on the radar gun when the officer

placed it next to defendant’s window.

¶ 13 Following defendant’s testimony, the State moved for a directed finding, arguing

defendant failed to show he was unlawfully stopped and therefore the summary suspension of his

driver’s license was proper. The court made a directed finding the arresting officer had

reasonable grounds to stop defendant’s car but allowed defendant to proceed on his allegation the

-3- arresting officer lacked reasonable grounds to believe defendant had been driving while under

the influence of alcohol or drugs.

¶ 14 2. Adam Stone

¶ 15 Adam Stone testified he was a police officer with the Bloomington Police

Department. On November 16, 2021, around 4:05 a.m., Officer Stone was conducting “radar

checks” in the area of Veterans and Commerce. He testified there were also three or four other

officers in the area conducting checks. One of the other officers, Officer Turner, sent a message

over the radio stating he had clocked a vehicle “traveling 92 [miles per hour]” on Veterans.

Officer Turner described the vehicle as a “newer black Dodge Charger” traveling “northbound

on Veterans approaching Morrissey.” Officer Stone explained that section of Veterans actually

runs east and west; the direction the car Officer Turner observed would have been traveling

eastbound. Officer Stone estimated he stopped defendant’s car within about “30 seconds” of

hearing Officer Turner’s radio message.

¶ 16 After stopping defendant’s car, Officer Stone asked defendant for his driver’s

license and insurance, neither of which he could provide. Defendant provided his passport card,

which Officer Stone took back to his patrol car to look up defendant’s information. Officer

Turner arrived shortly thereafter and confirmed Officer Stone had stopped the same car he

observed speeding. Officer Stone testified the posted speed limit was 45 miles per hour, and

defendant’s alleged speed of 92 miles per hour was a “criminal offense,” which is why he asked

defendant to exit the vehicle. Defendant refused to exit his car for about 15 minutes. When

defendant eventually exited the car, the officers placed defendant under arrest for speeding and

resisting arrest. While placing defendant under arrest, Officer Stone “noticed [defendant’s] eyes

were bloodshot and glassy and the odor of an alcoholic beverage was emitting from his breath.”

-4- ¶ 17 Officer Stone testified he was equipped with a body-worn camera that evening,

and a disk containing footage from his interaction with defendant was admitted into evidence as

People’s Exhibit No. 1 and published to the court. In the video footage, defendant denies

speeding and has his driver’s side window up for most of the interaction prior to exiting.

Defendant claimed to be a “diplomatic ambassador” and repeatedly asked to speak with the

“embassy” or “consulate.” Defendant could not identify which one he wanted to contact after

being informed there were different consulates for different countries. Following defendant’s

arrest and transport to the Bloomington Police Department, defendant refused to submit to field

sobriety tests.

¶ 18 On cross-examination, Officer Stone agreed Officer Turner did not indicate the

speeding car displayed any “signs [he] would look for” for a suspected DUI. He further agreed

defendant did not have any slurred speech, was responsive to the officers’ questions, and had no

trouble exiting his vehicle or producing his identification from his wallet.

¶ 19 Following arguments, the circuit court found there were reasonable grounds to

believe defendant had been operating a motor vehicle while under the influence of alcohol. The

court denied defendant’s petition and sustained the summary suspension of his driver’s license.

¶ 20 B. Additional Proceedings

¶ 21 On February 8, 2022, defendant’s counsel filed a motion to withdraw her

representation of defendant, alleging an irretrievable breakdown had occurred in the

attorney-client relationship and defendant consented to her withdrawal.

¶ 22 On February 15, 2022, defendant pro se filed a motion to reconsider the circuit

court’s denial of his petition to rescind the summary suspension. Defendant argued he was not

arrested for DUI but rather for misdemeanor speeding and therefore no “implied consent” existed

-5- for him to submit to field sobriety testing. Based on the lack of implied consent, he argued, his

refusal to submit to chemical testing did not warrant the statutory summary suspension of his

driver’s license. Defendant also argued his counsel was ineffective for failing to raise the

aforementioned issues at the previous hearing.

¶ 23 Following a February 23, 2022, hearing, the circuit court (1) allowed defense

counsel’s motion to withdraw and (2) denied defendant’s motion to reconsider.

¶ 24 This appeal followed.

¶ 25 II. ANALYSIS

¶ 26 On appeal, defendant, pro se, argues the circuit court erred when it (1) denied his

petition, (2) found his motion to reconsider untimely, and (3) failed to perform a preliminary

inquiry pursuant to Krankel, 102 Ill. 2d at 181. The State argues the circuit court (1) properly

denied the petition, (2) never ruled defendant’s motion to reconsider was untimely, and (3) was

not obligated to conduct a preliminary Krankel inquiry. We agree with the State and affirm the

circuit court’s judgment.

¶ 27 A. Summary Suspension

¶ 28 Defendant argues the trial court erroneously denied his petition to rescind his

summary suspension because (1) he was not arrested for DUI; (2) the officers lacked probable

cause to arrest him for DUI; (3) as he was not arrested for DUI, there was no implied consent for

chemical testing; and (4) his refusal to submit to chemical testing was therefore not a proper

basis for the summary suspension of defendant’s driver’s license. Defendant further argues the

officers lacked probable cause to arrest him for speeding because the State failed to present

evidence Officer Turner’s radar was properly “tuned.”

¶ 29 1. Applicable Law

-6- ¶ 30 The Vehicle Code prohibits motorists from driving while under the influence of

alcohol. 625 ILCS 5/11-501 (West 2020). In addition to criminal penalties, a motorist arrested

for DUI may have his driving privileges suspended. 625 ILCSC 5/11-501.1 (West 2020). A

motorist who is arrested for DUI is “deemed to have given consent *** to a chemical test or tests

of blood, breath, other bodily substance, or urine for the purpose of determining the content of

alcohol *** in the person’s blood if arrested.” 625 ILCS 5/11-501.1(a) (West 2020). A motorist

who refuses to submit to chemical testing upon arrest for DUI is subject to a statutory summary

suspension of their driving privileges. 625 ILCS 5/11-501.1(g) (West 2020).

¶ 31 If a motorist’s driving privileges are summarily suspended under section

11-501.1(g) of the Vehicle Code, the motorist may petition for rescission of that suspension. 625

ILCS 5/2-118.1 (West 2020). A hearing on a petition to rescind a summary suspension is a civil

proceeding in which the motorist bears the burden of proof. People v. Wear, 229 Ill. 2d 545,

559-60 (2008) (abrogated on other grounds by Lange v. California, 594 U.S. __, 141 S. Ct. 2011

(2021)). If the motorist establishes a prima facie case for rescission, the burden then shifts to the

State to present evidence justifying the suspension. Wear, 229 Ill. 2d at 560. Four issues may be

raised in a rescission hearing, including, as is relevant to this appeal, (1) “whether the person was

placed under arrest for [DUI] as evidenced by the issuance of a Uniform Traffic Ticket” and

(2) “[w]hether the officer had reasonable grounds to believe that the person was driving or in

actual physical control of a motor vehicle upon a highway while under the influence of alcohol.”

625 ILCS 5/2-118.1(b) (West 2020).

¶ 32 Our supreme court has explained probable cause in the context of statutory

summary suspensions as follows:

-7- “Probable cause to arrest exists when the facts known to the officer at the

time of the arrest are sufficient to lead a reasonably cautious person to believe that

the arrestee has committed a crime. [Citation.] That is, the existence of probable

cause depends upon the totality of the circumstances at the time of the arrest.

[Citations.] *** The standard for determining whether probable cause is present is

probability of criminal activity, rather than proof beyond a reasonable doubt.”

(Internal quotation marks omitted.) Wear, 229 Ill. 2d at 563-64.

An officer must have more than a mere suspicion, but sufficient evidence for a conviction is not

required. People v. Quigley, 2018 IL App (1st) 172560, ¶ 34. “Indeed, probable cause does not

even demand a showing that the belief that the suspect has committed a crime be more likely true

than false.” Wear, 229 Ill. 2d at 564.

¶ 33 When reviewing the trial court’s ruling on a petition to rescind, we defer to the

court’s factual findings and credibility assessments and will reverse those findings only if they

are against the manifest weight of the evidence. Wear, 229 Ill. 2d at 560-61. “ ‘A finding is

against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if

the finding itself is unreasonable, arbitrary, or not based on the evidence presented.’ ” People v.

Mott, 389 Ill. App. 3d 539, 543 (2009) (quoting People v. Deleon, 227 Ill. 2d 322, 332 (2008)).

We accord great deference to the trial court’s factual and credibility determinations, as the court

is in a better position to judge the credibility of the witnesses. People v. Nolan, 59 Ill. App. 3d

177, 186, 375 N.E.2d 445, 452 (1978). However, we review de novo the ultimate question of

whether the petition should have been granted. Wear, 229 Ill. 2d at 562.

¶ 34 2. This Case

¶ 35 a. Forfeiture

-8- ¶ 36 As an initial matter, the State argues defendant forfeited any argument the officers

failed to establish probable cause to stop defendant for speeding on the basis the State did not

present evidence that Officer Turner’s radar was properly “tuned.” In his reply brief, defendant

argues he did not forfeit this issue because “there is testimony in the form of a sworn statement

from Officer Turner that admits the [radar] device was insufficiently tested as it was only tested

with a single tuning fork instead of two or more.” We agree with the State.

¶ 37 Generally, issues not raised in the circuit court are forfeited and may not be raised

for the first time on appeal. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996).

Additionally, “the theory upon which a case is tried in the lower court cannot be changed on

review.” (Internal quotation marks omitted.) Haudrich, 169 Ill. 2d at 536 (quoting Daniels v.

Anderson, 162 Ill. 2d 47, 58 (1994)).

¶ 38 Here, defendant failed to raise the radar issue in his petition to rescind and did not

question Officer Stone regarding whether the radar was properly tuned during his testimony at

the hearing. At the hearing, defendant testified he witnessed a vehicle that appeared similar to his

own pass him traveling at a high speed. According to defendant, the officers intended to stop that

vehicle rather than his. This was consistent with defendant’s statements to the officers as seen in

the body-worn camera footage. The crux of defendant’s argument that the officers lacked

probable cause to stop his vehicle was based on identity—not the accuracy of Officer Turner’s

radar. Defendant is not permitted to change his theory of the case on appeal, and he presents no

compelling reason for this court to excuse his forfeiture. Accordingly, we decline to consider the

merits of this issue.

¶ 39 b. Probable Cause

-9- ¶ 40 Next, we disagree with defendant’s contention he was not arrested for DUI.

Although defendant correctly notes he was initially arrested for speeding, the record shows

defendant was issued a ticket for DUI. The McLean County field arrest report further indicated

defendant was charged with both speeding and DUI. The fact that the officers arrested defendant

for speeding prior to obtaining probable cause to also arrest defendant for DUI does not negate

the fact defendant was also eventually arrested for DUI. Section 2-118.1(b)(1) of the Vehicle

Code provides that the issuance of a uniform traffic ticket for DUI is sufficient to show a

motorist was placed under arrest for DUI. 625 ILCS 5/2-118.1(b)(1) (West 2020). Because

defendant was issued a ticket for DUI in this case, his argument he was not arrested for DUI

lacks merit.

¶ 41 Further, the circuit court’s factual findings that officers observed defendant

(1) speeding and (2) displaying signs of impairment were not against the manifest weight of the

evidence. Deferring to the circuit court’s credibility determinations, the evidence showed Officer

Stone pulled defendant over after receiving a radio message from Officer Turner that he had

clocked a car matching defendant’s car’s description going 92 miles per hour in a

45-mile-per-hour zone. Officer Stone further testified once defendant finally exited the car, he

observed defendant’s eyes were glassy and bloodshot and the odor of alcohol emanating from

defendant’s breath. Although defendant claimed Officer Turner clocked a different vehicle

speeding and he was not traveling in the direction indicated by Officer Turner in his report, the

circuit court rejected this version of the facts in favor of the officers’. Defendant has not shown

the opposite conclusion is readily apparent.

- 10 - ¶ 42 Finally, the court’s denial of defendant’s petition to rescind was proper because

its factual findings supported the conclusion the officers had probable cause to arrest defendant

for DUI.

¶ 43 Defendant likens his case to People v. Motzko, 2017 IL App (3d) 160154, in

which the arresting officer testified he placed the defendant under arrest for DUI “based on the

odor of an alcoholic beverage on defendant’s breath, defendant’s glassy and bloodshot eyes, and

his admission to drinking,” after the defendant was involved in a traffic accident. Motzko, 2017

IL App (3d) 160154, ¶ 22. The court noted that as set forth in People v. Day, 2016 IL App (3d)

150852, ¶ 23, “[T]he odor of an alcoholic beverage, admission to drinking, and glassy and

bloodshot eyes are insufficient to create probable cause for a DUI without evidence of other

factors to support impairment, such as poor driving, stumbling, falling, or an inability to

communicate.” Motzko, 2017 IL App (3d) 160154, ¶ 23.

¶ 44 Defendant’s case is distinguishable from Motzko. We acknowledge defendant is

correct that the officers’ allegations his breath smelled of alcohol and he had bloodshot, glassy

eyes were not sufficient—on their own—to create probable cause. However, unlike in Motzko,

the circuit court here found the arresting officers’ testimony to be credible. See Motzko, 2017 IL

App (3d) 160154, ¶ 11. Additionally, the State in this case also presented evidence that in

addition to defendant’s eyes and the odor of alcohol, defendant was clocked traveling 92 miles

per hour in a 45-mile-per-hour zone, corroborating the officers’ other suspicions of impairment.

Defendant also would not roll down his window all the way, denied being able to see the number

displayed on Officer Turner’s radar device when presented to him, and could not identify what

consulate he wished to speak with after repeatedly asking to do so. When considered under the

- 11 - totality of the circumstances, the State presented sufficient facts to lead a reasonably cautious

person to believe defendant had committed DUI.

¶ 45 B. Motion to Reconsider

¶ 46 Defendant next argues the trial court erroneously denied his motion to reconsider

on the basis it was untimely. The State argues the circuit court never made such a ruling and its

denial of defendant’s motion to reconsider was proper. We agree with the State.

¶ 47 “The purpose of a motion to reconsider is to bring to the court’s attention a

change in the law, an error in the court’s previous application of existing law, or newly

discovered evidence that was not available at the time of the hearing.” People v. $280,020 U.S.

Currency, 372 Ill. App. 3d 785, 791 (2007). In Liceaga v. Baez, 2019 IL App (1st) 181170, ¶ 25,

the First District further explained as follows:

“A reconsideration motion is not the place to raise a new legal theory or factual

argument. [Citations.] Trial courts should not allow litigants to stand mute, lose a

motion, and then frantically gather new material to show that the court erred in its

ruling. [Citations.] As a result, legal theories and factual arguments not previously

made are subject to waiver.”

“When reviewing a motion to reconsider that was based only on the trial court’s application (or

purported misapplication) of existing law, *** our standard of review is de novo.” $280,020 U.S.

Currency, 372 Ill. App. 3d at 791.

¶ 48 Defendant claims the following statement by the court at the hearing on his

motion to reconsider supports his contention his motion was improperly dismissed as untimely:

“I think it’s two different things that are being considered here in terms of where

[sic] that arrest was for, because there was the speeding that was alleged, still is

- 12 - only an allegation, and then later on—obviously officers don’t get all the evidence

that they have that they want to consider all at once. Sometimes it has layers as it

progresses. There are some new things that are brought up in the Motion to

Reconsider which I think it’s untimely at this point to bring some of those things

up.”

¶ 49 Defendant’s characterization of the court’s statement is incorrect. The court did

not rule defendant’s motion itself was untimely. Read in context, the court was explaining to

defendant it was not appropriate to raise, in a motion to reconsider, legal theories and factual

arguments that were available to him at the time of his hearing but not presented to the court.

See, e.g., Liceaga, 2019 IL App (1st) 181170, ¶ 25. In denying defendant’s motion, the court

based its ruling on “the totality of the circumstances,” concluding the State’s evidence regarding

defendant’s speeding and the alleged odor of alcohol on his breath supported a finding probable

cause existed to arrest defendant for DUI. The record shows the court’s decision was based on

the merits and not untimeliness, and its denial of defendant’s motion was proper.

¶ 50 C. Krankel Inquiry

¶ 51 Finally, defendant argues the trial court failed to conduct a preliminary Krankel

inquiry despite his pro se allegations of ineffective assistance of counsel following the hearing

on his petition. The State responds the trial court was not obligated to perform a Krankel inquiry

because (1) there is no right to the effective assistance of counsel in summary suspension

proceedings and (2) defendant chose to proceed pro se after his retained counsel was allowed to

withdraw. We agree with the State’s first argument.

¶ 52 Pursuant to Krankel and its progeny, when a defendant raises a pro se claim of

ineffective assistance of counsel during the criminal proceedings against him, the trial court

- 13 - should conduct a non-adversarial inquiry to examine the factual basis of the defendant’s claim

and determine whether new counsel should be appointed. People v. Jolly, 2014 IL 117142, ¶ 29.

In contrast, a “summary suspension hearing is a civil proceeding separate and apart from the

criminal action of driving under the influence of alcohol.” People v. Gerke, 123 Ill. 2d 85, 93

(1988). Our supreme court has held there is no right to appointed counsel in summary suspension

proceedings. See Koss v. Slater, 116 Ill. 2d 389, 397 (1987).

¶ 53 Here, the circuit court had no duty to conduct a Krankel inquiry following

defendant’s pro se allegations of ineffective assistance of counsel. Although defendant is

charged with the criminal offense of DUI, this appeal concerns only the statutory summary

suspension of defendant’s driver’s license—a civil proceeding “separate and apart” from

defendant’s DUI charge. Gerke, 123 Ill. 2d at 93. As stated above, there is no right to appointed

counsel in summary suspension proceedings. It follows that the constitutional right to the

effective assistance of counsel in criminal proceedings is not implicated in civil summary

suspension proceedings. If the effective assistance of counsel is not implicated, it further follows

the circuit court lacks a duty to conduct a Krankel-style inquiry when pro se claims of

“ineffective assistance” are raised following summary suspension proceedings. Defendant cites

no authority imposing such a duty, and we find none exists. Accordingly, the circuit court in this

case did not err when it did not conduct a Krankel inquiry.

¶ 54 III. CONCLUSION

¶ 55 For the reasons stated, we affirm the trial court’s judgment.

¶ 56 Affirmed.

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