People v. Ottenhausen , 2023 IL App (4th) 220769-U ( 2023 )

NOTICE 2023 IL App (4th) 220769-U FILED
This Order was filed under June 28, 2023
Supreme Court Rule 23 and is NO. 4-22-0769
not precedent except in the
Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Stephenson County
DREW J. OTTENHAUSEN, ) No. 21TR3987
Defendant-Appellant. )
) Honorable
) James M. Hauser,
) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court.
Presiding Justice DeArmond and Justice Knecht concurred in the judgment.
ORDER
¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to
withdraw as counsel as no meritorious issues could be raised on appeal.
¶2 In August 2022, defendant, Drew J. Ottenhausen, was convicted of driving while
license revoked (625 ILCS 5/6-303(a) (West 2020)) and sentenced to 12 months of conditional
discharge with 30 days in jail. Defendant timely appealed and the Office of the State Appellate
Defender (OSAD) was appointed to represent him. OSAD now moves to withdraw its
representation of defendant pursuant to Anders v. California, 386 U.S. 738 (1967), contending “an
appeal in this case would be frivolous.” We agree and grant OSAD’s motion to withdraw and
affirm the trial court’s judgment.
¶3 I. BACKGROUND
¶4 On October 18, 2021, the State charged defendant with driving while his license
was revoked (625 ILCS 5/6-303(a) (West 2020)). In May 2022, defense counsel stated defendant
wished to waive his right to a jury trial. Before accepting defendant’s waiver, the trial court
admonished defendant as to the pending charge and possible penalty range. The court also advised
defendant of his right to a jury trial, the jury trial process, and the bench trial process. Defendant
acknowledged his understanding of the court’s admonishments and explanations. Finally, upon the
court’s inquiry, defendant affirmatively stated there were no threats or promises made to him in
exchange for his jury waiver. After this colloquy, the court found defendant’s waiver of jury to be
“knowing and voluntary” and accepted his signed jury waiver.
¶5 At defendant’s bench trial, the State called two witnesses: Trisha Haag and Andy
Schroeder. In addition, the State introduced, and the court admitted, a certified driving abstract
showing defendant’s license was revoked on October 18, 2021, for driving under the influence.
¶6 Haag worked at the Boco convenience store in Pearl City in October 2021. While
working as the store clerk on October 18, she looked out the window and saw defendant pull into
the parking lot. Defendant then exited the vehicle, came into the store, and purchased beer. When
defendant left the store, he saw a police officer outside. After seeing the officer, he began walking
in the opposite direction and did not return to his vehicle. On cross-examination, Haag stated she
was familiar with defendant and that the two were friends.
¶7 Schroeder was working as a police officer for the Village of Pearl City Police
Department on October 18, 2021. That day, he patrolled Goldmine Road, a street known for
complaints of “junked” vehicles and noticed a parked “Chevy truck” in a similar condition. He ran
the license plates to determine whether the vehicle was properly registered and determined
defendant was the registered owner. Schroeder utilized his in-car computer to run a check on
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defendant and learned defendant’s license was revoked. Approximately two hours later, Schroeder
observed a “greenish blue Chevy Astro minivan” in the Boco parking lot. He recognized this van
as “belong[ing] to” defendant’s address. Schroeder parked next to the vehicle in the Boco parking
lot and observed an individual he recognized as defendant exit the store. Defendant looked at
Schroeder and immediately walked away from the store. After defendant walked away, Schroeder
went inside and asked the store clerk, Haag, whether defendant was the person driving the minivan.
Haag confirmed he was. Schroeder located defendant and spoke with him about the minivan.
Defendant initially denied driving it, but after Schroeder informed defendant he would request the
surveillance video, defendant admitted to driving. On cross-examination, Schroeder admitted he
never obtained the surveillance video and never observed defendant driving the minivan.
¶8 Defendant testified on his own behalf. He flatly denied driving the minivan to Boco
and denied telling Schroeder he was driving. On cross-examination, he acknowledged that Haag
knew him but contended she also knew his three brothers, who “look just like [him].”
¶9 The trial court found defendant guilty of driving while license revoked, noting that
it found Haag more credible than defendant. The parties proceeded immediately to sentencing and
neither party presented any evidence. The State requested the court sentence defendant to 10 days
in jail and impose $560 in fines and costs. Defense counsel requested 12 months of conditional
discharge and 240 hours of public service work, leaving the fines and costs to the court’s discretion.
Defendant declined to make a statement of allocution. The court sentenced defendant to 12 months
of conditional discharge with 30 days in jail and imposed a $200 fine, plus costs.
¶ 10 Defense counsel filed a motion for a new trial, arguing that “the verdict is contrary
to the law and to the evidence” and “the State did not prove the guilt of Defendant beyond a
reasonable doubt.” At a hearing on the motion, defense counsel stood on his written motion. The
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trial court denied the motion and reiterated that it found “the State’s witnesses credible” and
defendant’s testimony “incredible.”
¶ 11 Defendant timely filed a notice of appeal and this court appointed OSAD to
represent him. OSAD filed a motion to withdraw and supported its motion with a memorandum
of law, including a statement of facts, a list of potential issues, and arguments why those issues
lack arguable merit. OSAD provided proof of service of its motion and memorandum on
defendant, and we granted defendant the opportunity to respond. Defendant failed to respond.
¶ 12 II. ANALYSIS
¶ 13 OSAD moves to withdraw, asserting all defendant’s potential claims lack arguable
merit. Counsel considered defendant’s possible claims of whether (1) the State presented sufficient
evidence to prove his guilt beyond a reasonable doubt, (2) defendant’s jury waiver was proper, and
(3) the trial court committed error at sentencing. After examining the record, the motion to
withdraw, and the memorandum of law, we agree with OSAD that defendant’s potential claims
lack arguable merit.
¶ 14 A. Sufficiency of the Evidence
¶ 15 OSAD contends no meritorious argument can be made that the State failed to prove
defendant’s guilt beyond a reasonable doubt. We agree.
¶ 16 When faced with a challenge as to whether the State has failed to prove a
defendant’s guilt beyond a reasonable doubt, “ ‘a reviewing court must determine whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ ” People v. McKown,
2021 IL App (4th) 190660, ¶ 49, 180 N.E.3d 909 (quoting People v. Harris, 2018 IL 121932, ¶ 26,
120 N.E.3d 900). In a criminal case, it is well-settled that the State must “prov[e] each element of
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a charged offense beyond a reasonable doubt.” People v. Murray, 2019 IL 123289, ¶ 28, 155
N.E.3d 412. “The trier of fact determines the credibility of the witnesses, decides what weight to
give their testimony, resolves conflicts in the evidence, and draws reasonable inferences from that
evidence.” People v. Swenson, 2020 IL 124688, ¶ 36, 181 N.E.3d 116. As a reviewing court, we
will not substitute our judgment for the trial court “unless the proof is so unsatisfactory, improbable
or implausible as to justify a reasonable doubt as to the defendant’s guilt.” People v. Slim, 127 Ill.
2d 302, 307, 537 N.E.2d 317, 319 (1989).
¶ 17 In order to convict a defendant for driving while license revoked, the State must
establish that the defendant was “driv[ing] or [was] in actual physical control of a motor vehicle
on any highway of [the State of Illinois] at a time when [his or her] driver’s license, permit, or
privilege to do so *** is revoked or suspended.” 625 ILCS 5/6-303(a) (West 2020).
¶ 18 At defendant’s bench trial, Haag, the Boco store clerk and a friend of defendant,
testified. Specifically, Haag testified she saw defendant drive to Boco, exit his vehicle, come
inside, and purchase beer on October 18, 2021. Schroeder testified that while he never observed
defendant driving on October 18, he located defendant’s vehicle at Boco, saw defendant exit the
store, and observed defendant immediately turn in the opposite direction after he saw Schroeder.
Subsequently, Schroeder asked Haag whether she saw defendant drive his vehicle to Boco, and
Haag confirmed she had. Schroeder located defendant, and he ultimately admitted to driving, even
though his license was suspended. The State introduced a certified copy of defendant’s driving
abstract, showing that defendant’s license was suspended on October 18, 2021, which the court
admitted. Defendant denied driving on October 18 or admitting to Schroeder that he was driving
that day.
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¶ 19 In this case, witness credibility was the determining factor for the trial court. The
court specifically noted it found Haag’s testimony more credible than defendant’s testimony.
Consequently, it found defendant guilty of driving while license revoked. We find nothing in the
record to undermine the court’s credibility determination. While defendant denied driving that day,
defendant had an incentive to lie—to potentially avoid a conviction. Conversely, there appears to
be no motive for Haag to lie about what she observed on October 18, 2021. Therefore, considering
the evidence in the light most favorable to the State, any rational trier of fact could have found the
State proved each element of driving while license revoked beyond a reasonable doubt.
¶ 20 B. Jury Waiver
¶ 21 OSAD asserts there is no meritorious argument that defendant’s waiver of a jury
trial was improper. We agree.
¶ 22 While a defendant has an absolute right to a trial by jury, a defendant may also
choose to waive that right. People v. Owens, 386 Ill. App. 3d 765, 771, 899 N.E.2d 625, 631
(2008). We review de novo whether a defendant properly waived his right to a jury trial. People v.
May, 2021 IL App (4th) 190893, ¶ 44, 194 N.E.3d 1027. There is no precise formula for us to
utilize during this review; instead it “ ‘depends on the facts and circumstances of each particular
case.’ ” Id. (quoting People v. Bannister, 232 Ill. 2d 52, 66, 902 N.E.2d 571, 581 (2008)). Although
there may not be a precise formula, we must determine that defendant understood “ ‘that the facts
of [his] case will be determined by a judge and not a jury.’ ” Id. ¶ 46 (quoting Bannister, 232 Ill.
2d at 69).
¶ 23 In this case, defendant waived his right to a jury trial in open court, while
represented by counsel. The trial court had an extended colloquy with defendant in which it
explained the nature of the charge, possible penalties, and the difference between a jury trial and
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a bench trial. After this, the court inquired whether any threats or promises were made in exchange
for defendant’s jury waiver. Defendant affirmatively stated he understood the court’s explanations
and that no threats or promises were made to him. He then signed a written jury waiver, which was
accepted by the court. The record is devoid of any indication defendant misunderstood or
questioned the jury waiver. It is clear defendant made a knowing and voluntarily waiver of his
right to a jury trial.
¶ 24 C. Sentencing Errors
¶ 25 OSAD asserts any argument the trial court erred while sentencing defendant is
deemed waived because defendant failed to file a written motion to reconsider his sentence.
Alternatively, OSAD claims that even if the issue is not waived, any argument attempting to
challenge defendant’s sentence would be frivolous. We agree.
¶ 26 After defendant’s sentencing, the trial court admonished him as to his appeal rights
pursuant to Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001). The court specifically stated:
“If you desire to challenge any part of the sentence or the sentencing hearing, you
must file prior to the appeal a motion to reconsider the sentence or any challenge to
the sentencing hearing, within 30 days of today. The motion must be in writing and
must set forth all of the issues or claims about the sentence or sentencing hearing.
***
Any issue or claim of error about the sentence imposed or any part of the
sentencing hearing you fail to raise in the written motion will not be considered by
the appellate court.”
Defendant, through his counsel, filed a motion for a new trial rather than a motion challenging his
sentence. The motion for a new trial failed to include any claims of error regarding defendant’s
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sentence or the sentencing hearing. Consequently, any arguments challenging defendant’s
sentence or the sentencing hearing have been waived. Id.¶ 27 Even assuming, arguendo, defendant’s challenge to his sentence is not waived, we
agree with OSAD that any argument challenging his sentence would be frivolous. Illinois courts
have determined “[a] reviewing court may not alter a defendant’s sentence absent an abuse of
discretion by the trial court.” People v. Lawson, 2018 IL App (4th) 170105, ¶ 26, 102 N.E.3d 761.
On review, “[a] sentence will be deemed an abuse of discretion where the sentence is ‘greatly at
variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the
offense.’ ” People v. Alexander, 239 Ill. 2d 205, 212, 940 N.E.2d 1062, 1066 (2010) (quoting
People v. Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 629 (2000)).
¶ 28 Driving while license revoked, a Class A misdemeanor, carries a possible
sentencing range of up to 364 days in jail or up to 2 years of probation or conditional discharge.
730 ILCS 5/5-4.5-55 (West 2020). Additionally, there is a specific requirement that a defendant
convicted of driving while license revoked serve either 10 days in jail with no day-for-day credit
or perform 30 days’ worth of community service hours. 625 ILCS 5/6-303(c)(1) (West 2020).
¶ 29 The trial court sentenced defendant to 12 months of conditional discharge with 30
days in jail. Defendant was eligible for day-for-day credit on the jail sentence. See 730 ILCS 130/3
(West 2020). This sentence was well below the maximum possible penalty. There is nothing in the
record to indicate the court abused its discretion when sentencing defendant.
¶ 30 III. CONCLUSION
¶ 31 For the reasons stated, we grant OSAD’s motion to withdraw as appellate counsel
and affirm the trial court’s judgment.
¶ 32 Affirmed.
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