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).

Order filed April 1, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0154 v. ) Circuit No. 17-CF-1812 ) BRYAN N. BRUSAW, ) Honorable ) Sarah F. Jones, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court. Presiding Justice O’Brien concurred in the judgment. Justice Holdridge dissented. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court erred when it failed to rule on defendant’s motion to substitute judge.

¶2 Defendant, Bryan N. Brusaw, appeals following his convictions for aggravated driving

under the influence (DUI) and aggravated driving while license revoked. He argues that the Will

County circuit court’s failure to rule upon his motion for substitution of judge warrants vacating

his convictions and remand for a new trial. He also contends that the court erred in imposing an extended-term sentence on the lesser of the two offenses. We reverse and remand for further

proceedings.

¶3 I. BACKGROUND

¶4 On September 6, 2017, the State charged defendant by criminal complaint with aggravated

DUI (625 ILCS 5/11-501(a)(2), (d)(2)(E) (West 2016)) and aggravated driving while license

revoked (id. § 6-303(a), (d-3)). The State filed the same charges in an indictment dated September

20, 2017. The indictment alleged that defendant had eight prior convictions for DUI and six prior

convictions for driving while license revoked.

¶5 At defendant’s first appearance, the court appointed an assistant public defender to

represent him. Defendant was arraigned on September 29, 2017. At that hearing, the matter was

assigned to the courtroom of Judge Sarah F. Jones, with a pretrial date scheduled for October 25,

2017.

¶6 On October 5, 2017, defendant filed, as a self-represented litigant, a motion for substitution

of judge pursuant to section 114-5(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/114-5(a) (West 2016)). In the motion, defendant expressed concern that he would not receive a

fair and impartial trial if the cause was tried before Judge Jones, due to her prejudice against him.

For reasons not made clear by the record, a hearing was held on October 11, 2017. Defendant was

not present at the hearing. Defense counsel acknowledged that defendant had “filed his own

motion,” then requested that motion be continued to the previously scheduled hearing.

¶7 Defense counsel subsequently filed an emergency motion to advance the October 25

hearing to November. Defendant’s motion for substitution of judge was not discussed at the

hearing on that emergency motion, nor was it raised at the eventual November hearing. The matter

proceeded to trial without the motion for substitution of judge ever having been raised again.

2 ¶8 Following a bench trial on July 9, 2018, the court found defendant guilty of both charges.

The court sentenced him to a term of nine years’ imprisonment for aggravated DUI and a

concurrent term of six years’ imprisonment for aggravated driving while license revoked.

¶9 II. ANALYSIS

¶ 10 On appeal, defendant argues that the circuit court’s failure to address his motion for

substitution of judge requires vacating his convictions.

¶ 11 Section 114-5(a) of the Code states:

“Within 10 days after a cause *** has been placed on the trial call of a judge the

defendant may move the court in writing for a substitution of that judge on the

ground that such judge is so prejudiced against him that he cannot receive a fair

trial. Upon the filing of such a motion the court shall proceed no further in the

cause but shall transfer it to another judge not named in the motion. The defendant

may name only one judge as prejudiced, pursuant to this subsection ***.” 725

ILCS 5/114-5(a) (West 2016).

The plain language of the statute gives defendant “an absolute right to one substitution of judge

based on nothing more than an uncontestable allegation of prejudice.” People v. Gold-Smith,

. The statute makes no provision for a hearing and requires the court to

transfer the case to another judge upon receipt of defendant’s motion.

A court commits

reversible error if it erroneously denies a timely-filed motion for substitution of judge. People v.

Tate,

(collecting cases).

¶ 12 Aside from the statutory limiting factors which are not at play in this case, the parties do

not dispute that defendant filed a timely motion to substitute judge under section 114-5(a).

Therefore, defendant had an absolute right to one substitution of judge. Nevertheless, Judge

3 Jones did not “proceed no further” and transfer the cause to another judge. See 725 ILCS 5/114-

5(a) (West 2016). Instead, she continued to preside over the case as if the motion had not been

filed. Judge Jones’s actions contravene the directive of section 114-5(a) and are erroneous. 1 See

Gold-Smith,

; Tate,

.

¶ 13 The State argues that the court did not err because: (1) defendant abandoned and forfeited

his motion to substitute judge, (2) he did not attempt to secure a ruling on the motion or raise the

issue in his posttrial motion, and (3) defendant was barred from filing this motion as a self-

represented litigant because he was represented by counsel at the time. We are unpersuaded by the

State’s arguments.

¶ 14 First, the plain language of section 114-5(a) of the Code establishes that the motion is not

subject to the common abandonment principal that puts the onus on defendant to secure a ruling

on his motion. See People v. Stewart,

(1952). The statute expressly states, “Upon

the filing of such a motion the court shall proceed no further.” 725 ILCS 5/114-5(a) (West 2016).

This wording clearly directs a court to respond to the motion before it may proceed any further in

the case. Notably, the statute does not provide for a hearing, but requires the court to transfer the

case upon receipt of the motion. Gold-Smith,

. The statutory

1 The dissent disagrees with this conclusion asserting that, despite the colloquial name of a section 114-5(a) motion as a motion for “automatic substitution,” such a motion is not self-executing. To reach this conclusion, the dissent relies on People v. Johnson,

(1994) (finding defendant abandoned his motion for substitution by failing to pursue it within a reasonable time after he filed it) and People v Haywood,

, ¶ 25 (finding the mere act of filing a motion to substitute judge “does not constitute a sufficient application.”). However, neither Johnson nor Haywood addressed a motion for substitution of judge filed under section 114-5(a) of the Code. Instead, they reviewed motions filed under section 114-5(d). Section 114-5(d) permits a substitution of judge for cause, and the statutory language of this section does not include the automatic execution phrasing found in section 114-5(a) —“Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion.” (Emphases added.) 725 ILCS 5/114-5(a) (West 2016). It is this language that makes a motion filed under section 114-5(a) “automatic” and excepts it from the common rule that the movant bears the burden of obtaining a ruling on his motion. 4 wording protects the sanctity of the constitutional right to an impartial trial that underlies the need

for such an automatic substitution. See People v. Walker,

(1988) (“For the

past 114 years, Illinois law has protected the constitutional right to a fair and impartial trial in

criminal cases by providing for the substitution of a judge who is allegedly prejudiced against a

defendant.”). Any additional requirements to secure a ruling are beyond the scope of the statute

and have the potential to infringe on a defendant’s right to an impartial trial.

¶ 15 Second, we find that although defendant did not raise this issue in a posttrial motion, his

forfeiture does not prevent our review. See People v. Enoch,

(1988) (to

preserve an issue for appellate review, a defendant must both object to the issue at trial and raise

it in a posttrial motion). However, “Forfeiture is a limitation on the parties, not the court.” People

v. Custer,

. While the supreme court has cautioned that this exception to

forfeiture is narrow, we find that it is applicable in this case where defendant raises an issue that

directly implicates his constitutional right to an impartial trial. See In re Br. M.,

.-

¶ 16 In Tate,

, the court considered “the improper denial of a

defendant’s motion for a substitution of judge” to be a “fundamental defect”. Id. ¶ 19. Considering

the importance of the right protected by a motion to substitute judge, honoring “defendant’s

procedural default would elevate form over substance.” Id. ¶ 44. Therefore, we find forfeiture

does not preclude our review.

¶ 17 Third, we find that defendant’s filing at a time when he was represented by counsel did not

prohibit Judge Jones from considering the motion to substitute judge. See People v. James,

(2006) (a defendant cannot receive services of counsel and still file motions

as a self-represented litigant). As we found in Gold-Smith,

,

5 defendant has an absolute right to one substitution of judge, and that “right belongs to the

defendant, not to defense counsel.” In effect, the right to seek a substitution of judge is personal

to defendant, much like a defendant’s right to decide whether to testify, or be represented by

counsel. People v. Corbett,

(1944); People v. Barrier,

(2005). Moreover, since this motion carries with it an implied accusation of judicial bias, it

logically belongs to defendant.

¶ 18 In this case, defendant personally exercised his right to substitute judge, and the court’s

failure to immediately address defendant’s motion functioned as a denial of the motion.

Accordingly, we find that the court erred in failing to address defendant’s motion to substitute

judge.

¶ 19 Since our ruling moots defendant’s sentencing issue, we need not reach it.

¶ 20 III. CONCLUSION

¶ 21 The judgment of the circuit court of Will County is reversed and remanded for further

proceedings.

¶ 22 Reversed and remanded.

¶ 23 JUSTICE HOLDRIDGE, dissenting:

¶ 24 I respectfully dissent from the majority’s offering, as I would find that the defendant

abandoned his motion.

¶ 25 The majority finds that “the plain language of section 114-5(a) of the Code establishes that

the motion is not subject to the common abandonment principal that puts the onus on defendant to

secure a ruling on his motion.” Supra ¶ 14. I disagree. A motion for substitution of judge filed

pursuant to section 114-5(a) is not self-executing. While such a motion is referred to colloquially

as a motion for “automatic substitution,” insofar as it does not require a defendant to prove

6 prejudice, the substitution is not actually automatic. People v. Tate,

. On the contrary, before such a motion is granted, the court must review the motion to ensure

that (1) it was made within 10 days of placement of the case on the named judge’s call, (2) only

one judge is named in the motion, (3) the motion is in writing, (4) the motion makes a sufficient

allegation of prejudice and the inability to receive a fair trial, and (5) the motion has been made

before a substantive ruling in the case. Id.; 725 ILCS 5/114-5(a) (West 2016). Moreover, the

statute expressly refers to a defendant’s request for substitution as a “motion,” which is defined as

a “written or oral application requesting a court to make a specified ruling or order.” Black’s Law

Dictionary (11th ed. 2019). A motion, by definition, requires a ruling from the court. Thus, neither

in its plain language nor in its practical application can section 114-5(a) of the Code be

characterized as self-executing.

¶ 26 Notably, in a similar case, our supreme court found that a defendant abandoned his motion

for substitution of judge, stating:

“The State contends that defendant waited too long to bring the motion to

the attention of the court. We agree. Defendant abandoned his motion by failing

to pursue it within a reasonable time after he filed it, in late July 1990. The trial

did not begin until November 13, 1990, almost four months later, and defendant

has provided no good reason why he could not have brought the motion to the

attention of his counsel or the court at least by the time of trial.” People v.

Johnson,

(1994).

The First District of our appellate court relied on this reasoning in People v. Haywood,

, ¶ 25, in finding that a defendant had abandoned his motion for substitution of

judge, stating:

7 “[A]lthough defendant’s pro se motions were filed with the clerk, the mere act of

filing in the clerk’s office does not constitute a sufficient application. [Citation.]

The party filing the motion has the responsibility ‘to request the trial judge to rule

on it, and when no ruling has been made on a motion, the motion is presumed to

have been abandoned absent circumstances indicating otherwise.’ ”

¶ 27 I would apply Johnson and Haywood, here, and find that the defendant abandoned his

motion for substitution of judge by failing to pursue a ruling on the motion. 2 It was the defendant’s

responsibility to ensure that the circuit court ruled on his motion. When a motion is not ruled

upon, “the motion is presumed to have been abandoned absent circumstances indicating

otherwise.” People v. Van Hee,

(1999). No such circumstances are

present here; in fact, the defendant agrees that he made no efforts to procure a ruling on his motion.

¶ 28 Because I would find that the defendant abandoned his motion for substitution of judge, I

would reach the merits of the defendant’s sentencing argument. The court’s sentence of six years’

imprisonment for the Class 4 offense of aggravated driving while license revoked was an extended-

term sentence. Because the defendant was also convicted of the Class X offense of aggravated

DUI, an offense that arose from the same course of conduct, the imposition of an extended-term

sentence on the lesser offense was improper. See People v. Reese,

. The

State concedes that the circuit court erred in imposing that sentence. I would, thus, reduce the

2 While the majority notes that Johnson and Haywood concern section 114-5(d), instead of section

114-5(a), we find these cases to be equally applicable, here. This is especially so where neither the majority

nor the defendant have been able to point to any caselaw directly on point. The case of Gold-Smith,

, which the majority relies on, does not concern the situation where the defendant failed

to seek a ruling on his motion.

8 defendant’s sentence for aggravated driving while license revoked to three years’ imprisonment,

the maximum nonextended term for a Class 4 felony, as the defendant and the State agree that such

remedy is appropriate. See Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967) (establishing that a reviewing

court has authority to “reduce the punishment imposed by the trial court”).

9