People v. Harris , 2022 IL App (4th) 220250-U ( 2022 )

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.
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¶ 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
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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.”
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¶ 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
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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
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¶ 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:
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“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
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¶ 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
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¶ 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.
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¶ 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
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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
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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
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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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