People v. Winters

2024 IL App (3d) 230125-U

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2024 IL App (3d) 230125-U

Order filed December 12, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-23-0125 v. ) Circuit No. 17-CF-2289 ) VINCENT L. WINTERS, ) Honorable ) Sarah-Marie Francis Jones, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE McDADE delivered the judgment of the court. Justices Brennan and Peterson concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) The court did not err in denying defendant’s motion for substitution of judge. (2) The court properly imposed an extended-term sentence.

¶2 Defendant, Vincent L. Winters, appeals his conviction for failing to register as a sex

offender. Defendant argues that the Will County circuit court erred when it (1) denied

defendant’s motion for substitution of judge; (2) failed to provide defendant an opportunity to

poll the jury; and (3) imposed an extended-term sentence. We affirm. ¶3 I. BACKGROUND

¶4 On March 7, 2018, the State charged defendant, by indictment, with failure to register as

a sex offender (730 ILCS 150/6, 10(a) (West 2018)). The court permitted defendant to proceed

pro se.

¶5 On September 23, 2021, defendant filed a “Motion for Substitution of Judge for Cause”

pursuant to “725 ILCS 5/114-5(d) for a Substitution of Judge for Cause.” In the motion,

defendant asserted that the court “showed Bias and Prejudice intention towards the Defendant,

when making a court ruling in Defendant’s Bond Reduction hearing.” Defendant continued that

he “fear[ed] that He will not receive a Fair and Impartial Trial in this cause if He is Tried before

Your Honor because of the Prejudice of Your Honor against the Defendant.” Defendant asserted

that he supported his motion “For Substitution of Judge for Cause (725 ILCS 5/114-5(d)” by

affidavit, though no such affidavit is contained in the record. The motion concluded that

defendant’s request was made under “725 ILCS 5/114-5(d)” and was submitted and signed by

defendant.

¶6 The court acknowledged defendant’s motion, stating that defendant had “filed a

substitution *** for cause.” A different judge heard defendant’s motion for substitution.

Defendant indicated that Judge Sarah-Marie Francis Jones was related to an officer whom

defendant alleged had battered him. Additionally, defendant asserted that Judge Jones made

prejudicial statements against defendant. Following arguments, the court stated that it had

conferred with Judge Jones and determined that there was “no blood relation between this officer

and [the] Judge” and denied the motion. The court continued that defendant made “no

allegations” to support a “substitution of judges for cause.” The matter proceeded to a jury trial.

2 ¶7 The evidence adduced at trial showed that, following a previous conviction for failing to

register as a sex offender, defendant was required to report to the police department and register

his address quarterly. Defendant read and signed documents acknowledging the requirements.

Officer George Mantis registered defendant on May 8, and August 4, 2017. Defendant’s next

registry date was November 3, 2017. Preceding the November 3 date, defendant did not

communicate with Mantis to schedule a registry appointment. Mantis and another officer

attempted to contact defendant at two different addresses before defendant’s November 3

registry date. Neither officer was successful in contacting defendant. On December 8, 2022, the

jury found defendant guilty. On January 9, 2023, defendant filed a motion for a new trial

arguing, inter alia, that the court generally erred in “substitution of judge issues.” Following

arguments, the court denied the motion.

¶8 Relevant to this appeal, defendant’s presentence investigation report (PSI) showed

convictions for aggravated domestic battery in 2001 and “Violation[s] of Sexual Offender

Registration” in 2011 and 2017. Defendant’s conviction in 2001 showed a conviction date of

September 24, 2007. Defendant was originally sentenced to 14 years’ imprisonment, but on

September 24, 2007, his sentence was “[a]mended” to 5 years’ imprisonment. Later, the PSI

included conflicting information regarding defendant’s 2001 aggravated domestic battery and the

length of the sentence imposed. Defendant’s 2011 conviction shows a conviction date of June 8,

2012. The court sentenced defendant to six years’ imprisonment. Later, the PSI referred to June

8, 2012, as the sentencing date and indicated that defendant was discharged from prison on May

17, 2016.

¶9 On April 21, 2023, the matter proceeded to sentencing. During the hearing, the State

asserted that defendant was extended-term eligible under section 5-5-3.2 of the Unified Code of

3 Corrections (730 ILCS 5/5-5-3.2 (West 2022)). The State relied on defendant’s 2001 offense for

aggravated domestic battery, a Class 2 felony, asserting that the court should calculate the 10-

year period from “the judgment of conviction[s]” being August 18, 2004, and December 8, 2022.

The State proffered that in the present case, defendant was “in custody” from June 6, 2021, to

December 8, 2022. Defendant was “in custody” on the 2011 case from November 7, 2011, to

May 17, 2016. Additionally, defendant was “in custody” for his 2001 conviction from August

18, 2004, until his release from prison on July 27, 2007. The State determined that 9.36 years had

passed from defendant’s 2001 conviction, falling within 10 years. The State asked the court to

sentence defendant to an extended term. Defendant objected to the State’s reliance on the 2001

conviction, reasoning the conviction was outside of the 10-year limitation to qualify defendant

for an extended-term sentence. The court determined that defendant was extended-term eligible

and sentenced him to 10 years’ imprisonment with credit for time served in custody of 685 days.

The court instructed defendant to file a motion to reconsider his sentence before appealing.

Defendant did not file a motion to reconsider his sentence. Defendant appealed.

¶ 10 II. ANALYSIS

¶ 11 Defendant argues that the circuit court erred when it (1) denied his motion for

substitution of judge; (2) failed to provide defendant an opportunity to poll the jury; and

(3) improperly imposed an extended-term sentence.

¶ 12 At the outset, we note that defendant concedes that he forfeited his jury polling error

claim and ultimately abandons the second-prong plain error argument. We accept defendant’s

concession that “an error in polling the jury is *** amenable to harmless error analysis and,

therefore, is not structural error” under the second-prong plain error analysis. People v. Jackson,

2022 IL 127256, ¶ 49. Additionally, defendant does not assert any additional argument to avoid

4 forfeiture, and thus, we must honor his procedural default. People v. Ramsey, 239 Ill. 2d 342,

412 (2010) (in the absence of an argument to avoid forfeiture, “we will generally honor the

defendant’s procedural default”). Accordingly, we will consider defendant’s two remaining

claims.

¶ 13 A. Motion to Substitute Judge

¶ 14 Defendant asserts that his motion for substitution of judge should have been considered

under section 114-5(a), or substitution as a matter of right. In support, defendant relies on the

absence of an affidavit in the record associated with his motion and the fact that he filed his

motion within 10 days of being placed on the judge’s docket.

¶ 15 Section 114-5 of the Code of Criminal Procedure of 1963 (Code) provides avenues for a

defendant to move to substitute a judge, including: (1) as a matter of right and (2) for cause. 725

ILCS 5/114-5(a), (d) (West 2020). The Code states that a defendant seeking substitution as a

matter of right must file a motion within 10 days of docketing and allege that the “judge is so

prejudiced against him that he cannot receive a fair trial.” Id. § 114-5(a). In contrast, “any

defendant may move at any time for substitution of judge for cause, supported by affidavit.” 725

ILCS 5/114-5(d) (West 2020). To be entitled to substitution of a judge for cause, the party

seeking substitution must “establish not merely the possibility of prejudice, but also that

prejudice tangibly exists.” People v. Mercado, 244 Ill. App. 3d 1040, 1045 (1993). “[A]n

allegation of prejudice of a judge, supported by facts upon which such alleged prejudice is based,

is a showing of ‘cause.’ ” People v. Lagardo, 82 Ill. App. 2d 119, 128 (1967). Pertaining to a

motion for cause, “[a] defendant’s right to a substitute judge is not absolute, but requires

substantiation to ensure that the claim of prejudice is not frivolously made.” People v.

Kluppelberg, 257 Ill. App. 3d 516, 535 (1993). “A defendant who seeks a substitution of judge

5 for cause bears the burden of establishing actual prejudice.” People v. Klein, 2015 IL App (3d)

130052, ¶ 85. “Prejudice is defined as animosity, hostility, ill will, or distrust towards this

defendant.” (Internal quotation marks omitted.) Id.

¶ 16 In the present case, defendant’s substitution motion was titled as a motion for “Cause,”

and defendant cited section 114-5(d) in several locations. 1 See cf. People v. Langford, 246 Ill.

App. 3d 460, 467 (1993). The body of defendant’s motion contended that the court’s comments

and ruling in his bond reduction hearing, and the court’s alleged familial relationship to an

officer who battered defendant, established prejudice that would deny defendant a fair and

impartial trial, consistent with the requirements of section 114-5(d). Thus, defendant’s motion

provided facts by which he sought to show that “prejudice tangibly exists.” See Mercado, 244 Ill.

App. 3d at 1045; Lagardo, 82 Ill. App. 2d at 128. Defendant’s lack of affidavit did not create

ambiguity regarding whether the motion should be considered under section 114-5(a) or section

114-5(d) as such failure simply compounded other insufficiencies in the motion. Moreover,

defendant filing his motion within 10 days of placement on the docket does not indicate an

intention to file a motion for substitution as of right because a motion for substitution for cause

can be filed “at any time” and, therefore, was also properly filed within the 10 days of placement

on the docket. 725 ILCS 5/114-5(d) (West 2020). Where both the title and contents of

defendant’s motion indicate that defendant intended to file a motion for substitution of judge for

cause and defendant’s allegations failed to establish any “tangibl[e]” prejudice, the motion was

properly denied. Mercado, 244 Ill. App. 3d at 1045; see People v. Kostos, 21 Ill. 2d 451, 454

1 To the extent that defendant relies on People v. Smith, 371 Ill. App. 3d 817, 821 (2007) (the appellate court found that when a motion is labeled incorrectly, the court should consider the motion’s content to “determine[ ] its character, not the title or label asserted by the movant.”), we find Smith unpersuasive to defendant’s contention that the court should have considered his motion as a substitution as a matter of right, where the title of defendant’s motion and citations within the motion consistently referred to a motion for substitution of judge for cause. 6 (1961); 725 ILCS 5/114-5(a) (West 2020); see cf. People v. McDuffee, 187 Ill. 2d 481, 488, 491

(1999).

¶ 17 In coming to this conclusion, we reject defendant’s reliance on Langford, 246 Ill. App. 3d

at 467. In Langford, the circuit court determined that defendant intended to file a motion for

substitution of judge for cause where his motion listed two judges, omitted an affidavit, and

lacked any other information regarding whether the motion was filed under section 114-5(a) or

section 114-5(d). Id. at 461. At the hearing on the motion, defense counsel asserted that he

intended to file the motion for substitution as a matter of right and had listed two judges by

mistake. Id. at 462-63. The court refused to consider counsel’s clarification and denied the

motion. Id. at 463-64. On appeal, the court stated that “an ambiguous motion for substitution

should not be summarily denied without allowing defendant to clarify his mistake, if he requests

such an opportunity.” (Emphasis added.) See id. at 465. The facts in defendant’s case differ

significantly where his motion specifically stated that he sought substitution for cause, defendant

cited section 114-5(d) several times, and he never informed the court that he intended to file his

motion under section 114-5(a) or request substitution as a matter of right. Defendant clings to the

notion that his lack of affidavit, as in Langford, deemed his motion ambiguous. However, in

Langford the lack of an affidavit was one of several factors contributing to the motion’s

ambiguity. Additionally, unlike Langford, defendant failed to assert any clarification that he

mistakenly filed his motion under the wrong section. Such clarification would have been

necessary where both the title and content of the motion unambiguously indicated that defendant

intended to file his motion for substitution of judge for cause. Supra ¶ 16.

¶ 18 B. Extended-Term Sentence

7 ¶ 19 Next, defendant argues that the court improperly imposed an extended-term sentence.

Specifically, defendant contends that the record failed to affirmatively show that his periods of

incarceration tolled the 10-year period, making him eligible for an extended-term sentence.

Defendant concedes forfeiture in that he failed to preserve the issue by way of timely objection

and postsentencing motion. See People v. Hillier, 237 Ill. 2d 539, 544 (2010). To avoid

forfeiture, defendant asserts the court’s sentencing error amounts to second-prong plain error. An

unpreserved sentencing challenge may be reviewed under the second prong of the plain error

doctrine if defendant can show “the error was so egregious as to deny the defendant a fair

sentencing hearing.” Id. at 545. The first step in the plain error doctrine is determining whether a

“clear or obvious error” has occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

¶ 20 “[A] sentencing judge is given broad discretionary power to consider various sources and

types of information so that he can make a sentencing determination within the parameters

outlined by the legislature. [Citation.] Evidence is admissible in a sentencing hearing provided

the proffered evidence is relevant and reliable.” People v. Williams, 149 Ill. 2d 467, 493 (1992)

The question of whether the circuit court has imposed an unauthorized sentence is a question of

law and is subject to de novo review. People v. Smith, 345 Ill. App. 3d 179, 189 (2004).

¶ 21 A court may impose an extended-term sentence when “ a defendant is convicted of any

felony, after having been previously convicted in Illinois ***of [a] same or similar class felony

or greater class felony, when such conviction has occurred within 10 years after the previous

conviction, excluding time spent in custody, and such charges are separately brought and tried

and arise out of different series of acts.” 730 ILCS 5/5-5-3.2(b)(1) (West 2016). “[S]entencing

dates for the prior and present offenses are the relevant dates for determining the 10-year period

for the extended-term sentencing statute.” People v. Young, 2018 IL App (3d) 160003, ¶ 11.

8 “ ‘[T]ime spent in custody’ means time spent in any custody as the result of a conviction.”

People v. Robinson, 89 Ill. 2d 469, 476 (1982). “[T]ime spent ‘in custody’ includes the time

spent in pretrial detention on a charge that results in a conviction.” People v. Shaw-Sodaro, 2023

IL App (4th) 220704, ¶ 59. In this case, defendant qualified for an extended-term sentence if the

aggregate time that he spent out of custody between September 24, 2007, and April 21, 2023, did

not exceed 10 years. 2

¶ 22 Here, the total time elapsed between defendant’s prior 2001 offense and the present

offense is 5684 days or 15.56 years. To qualify for an extended-term sentence, defendant must

have spent a minimum of 5.56 years in custody between September 24, 2007, and April 21,

2023. The record is clear that defendant was in custody for the present conviction from June 6,

2021, to his sentencing date of April 21, 2023, amounting to 685 days or 1.87 years. The record

also shows that defendant was in custody for his 2011 conviction from November 7, 2011, to

May 17, 2016, amounting to 1652 days or 4.52 years. 3 Defendant’s aggregate time spent in

custody for these two convictions is 6.39 years. Thus, the time elapsed, excluding 6.39 years,

amounts to 9.17 years between convictions, placing his prior 2001 conviction within 10 years

and satisfying the extended-term sentencing requirement.

2 Defendant does not dispute that the 10-year calculation for his 2001 offense begins from the final sentencing order imposed on September 24, 2007. See People v. Lieberman, 332 Ill. App. 3d 193, 197 (2002) (the date of conviction is the date of the entry of a sentencing order. When a court vacates an original sentence, that sentence no longer exists. Thus, a defendant’s eligibility for the imposition of an extended-term sentence must be determined from his “final sentence”); see also People v. Lemons, 191 Ill. 2d 155, 159-60 (2000). Defendant’s contentions strictly challenge the tolled time due to the records ambiguity on his time spent in custody. 3 The PSI referred to June 8, 2012, as both a conviction and sentencing date for defendant’s 2011 offense. For purposes of this appeal, the relevant dates regarding defendant’s 2011 conviction are the dates defendant spent in custody from November 7, 2011, to May 17, 2016. Given defendant’s conviction and sentencing date, the timeframe the State proffered included pretrial custody. However, even calculating the time from June 8, 2012, the 1469 days or 4.02 years sufficiently tolled the 10-year period. 9 ¶ 23 We reject defendant’s assertion that the State’s failure to provide “documentary

evidence” of the dates of defendant’s incarceration is similar to the PSI lacking information

regarding defendant’s released dates to determine time spent in custody. See cf. Wilkins, 343 Ill.

App. 3d at 149, 151; Young, 2018 IL App (3d) 160003, ¶ 12; People v. Beers, 2021 IL App (5th)

200216-U, ¶ 17; People v. Craig, 2023 IL App (1st) 200311-U, ¶¶ 17-18, 31-32. In each of the

cases defendant cites, the State did not present any evidence of defendant’s actual time spent in

custody and the PSI lacked sufficient information to support an extended-term sentence. In

contrast, here, the State proffered defendant’s in-custody and release dates for each offense. See

Williams, 149 Ill. 2d at 490. Specifically, the proffered in-custody dates for defendant’s present

and 2011 convictions were “relevant and reliable” where there is no apparent contradiction or

objection in the record. Id. Therefore, the court correctly considered this evidence in conjunction

with the PSI when imposing defendant’s extended-term sentence. To the extent that the State’s

proffer was unclear or contradicted the PSI, that unreliability is limited to the record pertaining to

defendant’s time spent in custody for his 2001 conviction. We need not delve into this issue

where the aggregate time defendant spent in custody for the present and 2011 convictions

sufficiently tolled the 10-year period, placing defendant’s 2001 conviction within a proper

timeframe to be eligible for extended-term sentencing.

¶ 24 III. CONCLUSION

¶ 25 The judgment of the circuit court of Will County is affirmed.

¶ 26 Affirmed.