text:
    PROSPECT FUNDING HOLDINGS, LLC, Plaintiff-Appellant, v. Keenan J. SAULTER and Saulter Tarver PC, Defendants-Appellees.
    No. 1-17-1277
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed March 13, 2018
    Robert J. Franco, Scott O. Reed, and Rachel V. Bassett, of Franco & Moroney, LLC, of Chicago, for appellant.
    Curtis J. Tarver II and Keenan J. Saulter, of Saulter Tarver P.C., of Homewood, for appellees.
   JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 This case raises issues of first impression concerning an attorney's liability to a business that loans a client money to be repaid, plus fees and interest, from any settlement or judgment. Attorney Keenan J. Saulter arranged for his client, Angela Wright-Housen, the plaintiff in a wrongful death lawsuit, to borrow $25,000 from Prospect Funding Holdings, LLC, under a purchase agreement. The agreement provided that any disputes were to be heard in Hennepin County, Minnesota, and to be governed by Minnesota law. Wright-Housen also signed an irrecovable letter of direction instructing Saulter to hold settlement money in his client trust account and to pay Prospect before disbursing settlement money to her. Saulter signed an attorney acknowledgement agreeing to abide by Wright-Housen's instructions.

¶ 2 When the wrongful death case settled and Wright-Housen failed to repay Prospect, Prospect sued her and Saulter in Minnesota. The Minnesota court dismissed Saulter on jurisdictional grounds, finding Saulter not a party to the purchase agreement so the forum selection clause did not apply to him. Wright-Housen did not appear, and the court entered a default judgment against her. When Wright-Housen failed to satisfy the default judgment, Prospect sued Saulter in Illinois for breach of contract and professional negligence. Prospect argued that Saulter breached his agreement to abide by his client's letter of direction and his fiduciary and professional duties by failing to maintain the settlement funds in his trust account and to repay Prospect. The trial court granted Saulter's motion to dismiss, finding Prospect's agreement with Wright-Housen was a contract for champerty, which Minnesota law prohibits.

¶ 3 Prospect argues the trial court should not have dismissed the case because (i) when the Minnesota court entered a default judgment against Wright-Housen, it found the purchase agreement valid and an Illinois court must give full faith and credit to that judgment, (ii) the Minnesota choice of law provision does not apply to the letter of direction and, even if Minnesota law does apply, Saulter cannot raise champerty as a defense as he was not a party to the purchase agreement, and (iii) the Illinois Rules of Professional Conduct obligated Saulter to hold the settlement money in his trust account until the dispute was resolved.

¶ 4 Saulter argues the trial court properly dismissed the complaint as he did not have a contract with Prospect and, alternatively, if there was a contract, it was void as champertous under Minnesota law.

¶ 5 We affirm the dismissal. The trial court was not obligated to give full faith and credit to a Minnesota default judgment that was not on the merits and was not directed against Saulter. The purchase agreement and letter of direction were interdependent, and because the purchase agreement is unenforceable under controlling Minnesota law, the letter of direction was also not enforceable. Lastly, an alleged violation of the Illinois Rules of Professional Conduct does not give rise to a private cause of action as our supreme court has given the Illinois Attorney Registration and Disciplinary Commission (ARDC) exclusive power to discipline attorneys for violations. We direct, however, the clerk of the court to forward a copy of this opinion to the ARDC for further investigation.

¶ 6 BACKGROUND

¶ 7 Saulter and his law firm, Saulter Tarver PC, represented Wright-Housen in a wrongful death lawsuit. (Wright-Housen is not a party to this case.) Saulter contacted Prospect, a litigation financing firm, to inquire about selling a portion of Wright-Housen's lawsuit in exchange for a nonrecourse interest in any proceeds from the suit. Prospect agreed to loan Wright-Housen $25,000 (plus a $4500 fee) in exchange for a return of the loan plus 4% interest compounded monthly from any judgment or settlement. If Wright-Housen did not obtain a judgment or settlement, she did not have to repay Prospect.

¶ 8 Prospect and Wright-Housen entered into a purchase agreement detailing the terms of the loan. The parties agreed that "all disputes, claims, or controversies arising out of or relating to this Agreement or the relationships that result from this Agreement shall be governed, construed and enforced in accordance with the law of the State of Minnesota." The agreement also provided that "all actions or proceedings in any way, manner or respect, arising out of or related to this agreement" would be litigated in Hennepin County, Minnesota. The purchase agreement included a "Certification of Seller's Attorney," which Saulter signed, certifying that "[a]ll proceeds of the legal claim will be disbursed via the attorneys [sic ] trust account" and that he would abide by written instructions from his client with regard to the purchase agreement.

¶ 9 Wright-Housen also executed an irrevocable letter of direction instructing Saulter to disburse all proceeds of the lawsuit through an attorney's trust account. Under the letter of direction, the settlement funds would not be released to Wright-Housen until after Saulter's legal fees and costs were paid and Prospect was paid in full. Saulter signed an "Attorney Acknowledgement" to honor the letter of direction.

¶ 10 The wrongful death case settled in July 2014. Prospect contacted Saulter about repayment on its loan. Saulter told Prospect he was not holding client funds from the settlement in his trust account and advised Prospect to contact Wright-Housen directly for repayment.

¶ 11 After being unable to collect from Wright-Housen, Prospect sued her and Saulter in Hennepin County, Minnesota. The Minnesota court found that Saulter was not subject to personal jurisdiction in Minnesota because he was a Chicago lawyer, who was not licensed to practice in Minnesota, and had not been in the state for eight years. The court also found that the Minnesota forum selection clause in the purchase agreement did not apply to Saulter, rejecting Prospect's argument that the "Certification of Seller's Attorney" to the purchase agreement or the "Attorney Acknowledgment" to the letter of direction bound Saulter to the terms of the purchase agreement. The court stated, "By agreeing to certain obligations that may be contained in, or derivative of, terms of the Purchase Agreement, Saulter is not adopting the entire Purchase Agreement nor signifying any intent to be bound by provisions that are not included in the forms he signed." The court found that because Saulter was not bound by the forum selection clause, the court did not have personal jurisdiction over him and dismissed the case against him, without prejudice.

¶ 12 After dismissing Saulter, the Minnesota court entered a default judgment against Wright-Housen. As to the legality of the purchase agreement in light of Minnesota's common law against agreements of champerty, that is, third-party financing of lawsuits, the court said, "on the facts of this case, it is unclear whether the doctrine of champerty, assuming it's still viable in Minnesota, would bar this action." The court also noted that illegality of contract is an affirmative defense that could only be asserted by Wright-Housen, who did not appear and thus could not raise it.

¶ 13 After collection efforts on the default judgment failed, Prospect sued Saulter and his law firm in Illinois. Prospect's amended complaint alleged breach of contract (count I), breach of fiduciary duty (count II), professional negligence (count III), promissory estoppel (count IV), and conversion (count V). Prospect alleged that by signing the attorney acknowledgement to the letter of direction, Saulter promised to repay Prospect's priority lien from the settlement proceeds and breached that promise by failing to pay or to hold the money in dispute in his trust account until the dispute was settled. Prospect also alleged it had a right to rely on Saulter's compliance with the Illinois Rules of Professional Conduct and his fiduciary obligations and that Saulter violated those rules by (i) aiding and abetting Wright-Housen to breach her agreement with Prospect and commit fraud, (ii) making false statements of material fact to Prospect, (iii) violating the rules for safekeeping property and the proper use of client trust accounts, (iv) failing to notify Prospect that the settlement proceeds were in their client trust account, (v) failing to provide an accounting of the settlement proceeds, and (vi) failing to maintain the settlement proceeds in the trust account until the dispute could be resolved.

¶ 14 Saulter moved to dismiss arguing he and Prospect did not have a contract and if they did, the contract was champertous and void under Minnesota Law, requiring dismissal. The trial court granted the motion to dismiss under section 2-619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2014) ), finding that Minnesota law prohibits contracts for champerty and thus, the underlying agreement was illegal and any attempts to recover on it are impermissible.

¶ 15 ANALYSIS

¶ 16 Full Faith and Credit

¶ 17 Prospect first contends the trial court should not have dismissed its complaint because the court was obligated to give full faith and credit to the Minnesota default judgment against Wright-Housen. Specifically, Prospect asserts that by entering a default judgment, the Minnesota court concluded the purchase agreement was enforceable and not champertous, and under the full faith and credit clause of the United States Constitution ( U.S. Const., art. IV, § 1 ), the Illinois court must enforce that judgment and may not dismiss on the grounds that the agreement is champertous, as that issue has been decided by the Minnesota court.

¶ 18 The full faith and credit clause of the United States Constitution provides that full faith and credit must be given to the judicial proceedings of every other state. First Wisconsin National Bank of Milwaukee v. Kramer , 202 Ill. App. 3d 1043, 1047, 148 Ill.Dec. 341, 560 N.E.2d 938 (1990). The Uniform Enforcement of Foreign Judgments Act ( 735 ILCS 5/12-650 et seq. (West 2014) ) implements the full faith and credit clause and facilitates the interstate enforcement of judgments in any jurisdiction where the judgment debtor is found. Ace Metal Fabricating Co. v. Arvid C. Walberg & Co., 135 Ill. App. 3d 452, 455, 90 Ill.Dec. 266, 481 N.E.2d 1066 (1985). "A lawsuit which has been pursued to judgment should be as conclusive in every other court as it is in the court where judgment was entered." Kramer , 202 Ill. App. 3d at 1047, 148 Ill.Dec. 341, 560 N.E.2d 938.

¶ 19 Under the full faith and credit clause, if Prospect sought to enforce the default judgment against Wright-Housen, an Illinois court would be obligated to enforce that judgment. Here, though, Prospect does not seek to enforce the default judgment; instead, Prospect has filed a separate lawsuit against Saulter, who, having been dismissed from the Minnesota case, was not a party to the default judgment.

¶ 20 Moreover, contrary to Prospect's assertion, the Minnesota court did not find that the purchase agreement was enforceable and not champertous. The Minnesota court expressly noted that champerty was an affirmative defense that could only be raised by Wright-Housen, who was not present. The court stated, "it is unclear whether the doctrine of champerty, assuming it's still viable in Minnesota, would bar this action." This does not constitute a finding on the legality of the agreement and would not be binding on an Illinois court.

¶ 21 Letter of Direction

¶ 22 Prospect next contends the letter of direction must be construed under Illinois law, which provides no basis for invalidating it as champertous on public policy grounds. Saulter argues in response that the letter of direction was an agreement between him and Wright-Housen and there was no privity of contract between him and Prospect because there was no offer, acceptance, or consideration. Alternatively, Saulter asserts that the purchase agreement was champertous and unenforceable under Minnesota law, and any cause of action based on that agreement must be dismissed.

¶ 23 Saulter moved to dismiss under section 2-619.1 of the Code, which permits a party to move for dismissal under both sections 2-615 and 2-619. 735 ILCS 5/2-619.1 (West 2014). A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint. Lutkauskas v. Ricker , 2015 IL 117090, ¶ 29, 390 Ill.Dec. 74, 28 N.E.3d 727. A motion brought under section 2-619 admits the sufficiency of the complaint, and asserts affirmative matter that avoids or defeats the claim. Id. We review a dismissal under either sections 2-615 or 2-619de novo . Id. Accordingly, we may affirm the judgment on any grounds found in the record, regardless of the trial court's reasons. Dratewska-Zator v. Rutherford , 2013 IL App (1st) 122699, ¶ 16, 375 Ill.Dec. 95, 996 N.E.2d 1151.

¶ 24 If a contract is entered for the direct benefit of a third person, the third person may sue for breach of the contract even though he or she is not a party to the contract. Swavely v. Freeway Ford Truck Sales, Inc. , 298 Ill. App. 3d 969, 973, 233 Ill.Dec. 80, 700 N.E.2d 181 (1998). Whether a party constitutes a third-party beneficiary depends on the intent of the contracting parties and made on a case-by-case basis. Midwest Concrete Products Co. v. La Salle National Bank , 94 Ill. App. 3d 394, 396, 49 Ill.Dec. 968, 418 N.E.2d 988 (1981). The terms of the contract control the rights of the third party. Id. at 397, 49 Ill.Dec. 968, 418 N.E.2d 988. This means the liability of a promisor cannot be extended by the third party beyond the terms of the contract or enlarged merely on the ground that the circumstances justify further liability. Id.

¶ 25 The letter of direction directs Saulter to pay Prospect from the proceeds of any settlement before paying Wright-Housen and expressly states "Prospect Funding Holdings LLC has relied on this irrevocable Letter of Direction to fund the Purchase Agreement." Thus, Prospect is a third-party beneficiary to the letter of direction. But, both Prospect's rights as a third-party beneficiary and Saulter's obligations under the letter of direction are dependent on the validity of the purchase agreement. If the purchase agreement is unenforceable, Prospect cannot sue to enforce its terms through the letter of direction.

¶ 26 The parties disagree as to whether Illinois or Minnesota law should be applied. Subject to constitutional limitations, the forum court applies the choice of law rules of its own state. Townsend v. Sears, Roebuck & Co. , 227 Ill. 2d 147, 155, 316 Ill.Dec. 505, 879 N.E.2d 893 (2007). Illinois courts employ the Restatement (Second) of Conflict of Laws to resolve choice of law questions. Bank of America National Ass'n v. Bassman FBT, L.L.C. , 2012 IL App (2d) 110729, ¶ 9, 366 Ill.Dec. 936, 981 N.E.2d 1. Generally, Illinois applies the law of the state with the most significant relationship to the issue. Gregory v. Beazer East , 384 Ill. App. 3d 178, 322 Ill.Dec. 926, 892 N.E.2d 563 (2008).

¶ 27 Prospect asserts that because the letter of direction contains no choice of law provision and Illinois is the forum that has the most significant relationship to the letter of direction, Illinois law applies. But, as noted, the enforceability of the letter of direction is dependent on the validity of the underlying purchase agreement. And that agreement plainly states that it is controlled by Minnesota law, so that is the law we will look to in deciding its validity.

¶ 28 Minnesota follows the common-law rule prohibiting contracts for champerty. Maslowski v. Prospect Funding Partners LLC , 890 N.W.2d 756, 763 (Minn. Ct. App. 2017) (citing Huber v. Johnson , 68 Minn. 74, 70 N.W. 806, 807 (1897). Champerty is defined as " '[a]n agreement between a stranger to a lawsuit and a litigant by which the stranger pursues the litigant['s] claims as consideration for receiving part of any judgment proceeds.' " Johnson v. Wright , 682 N.W.2d 671, 675 (Minn. Ct. App. 2004) (quoting Black's Law Dictionary 224 (7th ed. 1999) ). Recently, in Prospect Funding Partners, LLC v. Williams , No. 27-CV-13-8745, 2014 Minn. Dist. LEXIS 2 (Dist. Ct. Hennepin County, Minn., May 5, 2014), a trial court in Minnesota reiterated the state's long-standing prohibition on champertous contracts. The court noted that "the ill effects of a contract that gives a stranger a contingent interest in the outcome of litigation go well beyond encouraging people to sue or direct control of the litigation." Id. at *21. In addition to the other "ill effects," including creating a disincentive to settle and permitting strangers to profit from the litigation of others, the court noted that litigation funding agreements permit the funders to lend litigants money without the regulations that cover loans and prohibit usurious interest rates, which was 4.5%, compounded monthly. The court noted that Minnesota caps interest on loans of less than $100,000 at 8% per year ( Minn. Stat. § 334.01 (2014) ) and that the interest on the loan would be 54%, well above that limit.

¶ 29 The exact same concerns raised by the Williams court are present in the purchase agreement between Prospect and Wright-Housen. The agreement not only gives a third party an interest in Wright-Housen's case, potentially affecting whether and when she decides to settle, it permits Prospect to make an enormous profit off of its loan by charging a usurious 4% interest rate, compounded monthly, without being subjected to any regulations. The purchase agreement was champertous and thus unenforceable under Minnesota law.

¶ 30 Prospect argues, however, that even if the purchase agreement is champertous, Saulter is not a party to that agreement and thus, cannot raise champerty as a defense. Relying on Illinois and Minnesota cases, Prospect contends the defense of champerty can only be raised by a party to the champertous contract and does not furnish any reason for refusing relief in the proceeding to which the champertous agreement relates. See, e.g. , Oil, Inc. v. Martin , 381 Ill. 11, 19, 44 N.E.2d 596 (1942) ; Ness v. Gurstel Chargo, P.A. , 933 F.Supp.2d 1156, 1170-71 (D. Minn. 2013) ; Miller UK Ltd. v. Caterpillar, Inc. , 17 F.Supp.3d 711, 726 (N.D. Ill. 2014). But the cases Prospect cites are factually distinguishable because they involved strangers to the agreement seeking to use champerty as a defense to an underlying lawsuit or as a separate cause of action. For instance, Miller concerned a discovery dispute between Miller UK Ltd. and Caterpillar, Inc., stemming from a cause of action for misappropriation of trade secrets. Miller , 17 F.Supp.3d at 717. Caterpillar claimed that Miller's use of contracted third-party funding in litigation violated Illinois law prohibiting maintenance and champerty and was, therefore, a complete defense to the underlying causes of action raised by Miller. Id. at 724. The Miller court did not agree, noting that "the defense of champerty can only be interposed in an action between the parties to the champertous contract, and does not furnish any reason for refusing relief in the proceeding to which the champertous agreement relates." (Internal quotation marks omitted.) Id. at 726.

¶ 31 In Ness , consumers filed a class action lawsuit against a debt collection business, the business's law firm, and attorneys who were both shareholders of the law firm and owners of the debt collecting business alleging violations of Fair Debt Collection Practices Act ( 15 U.S.C. §§ 1692 et seq. (2012) ). Ness , 933 F.Supp.2d at 1161. The plaintiffs alleged, in part, that the lawyers engaged in champerty by creating a debt collection business as a fabricated client when the attorneys, as the business's owners, were the true parties in interest. Id. at 1170. The trial court disagreed, noting that the plaintiffs did not allege the existence of any contracts with the defendants and were attempting to assert champerty as an independent cause of action, which is not cognizable under Minnesota law. Id. at 1171.

¶ 32 Unlike Caterpillar in the Miller case, Saulter is not a complete stranger to the purchase agreement because his obligations under the letter of direction are wholly dependent on the enforceability of the agreement. Further, unlike the plaintiffs in Ness , Saulter is not seeking to bring a separate cause of action alleging champerty. Instead, Saulter contends that Prospect, a third-party beneficiary, cannot enforce a letter of direction that depends on a champertous and unenforceable purchase agreement. Under section 309(4) of the Restatement (Second) of Contracts, a beneficiary's right against the promisor is subject to any claim or defense arising from his or her own conduct or agreement. Restatement (Second) of Contracts § 309(4) (1981) ; see also Hansen v. Proctor , 246 Minn. 67, 74 N.W.2d 281, 284 (1955) (holding that in suit against promisor, third-party beneficiary to contract generally subject to same defenses as parties to contract itself). Thus, the fact that Saulter was not a party to the purchase agreement did not preclude him from arguing the agreement was champertous when Prospect sought to enforce the letter of direction. Because we agree with the trial court's finding that the purchase agreement was unenforceable under Minnesota law, we affirm.

¶ 33 Professional Obligation to Hold Funds in Trust Account

¶ 34 Lastly, Prospect argues the trial court should not have dismissed the amended complaint because Saulter had a professional duty under the Illinois Rules of Professional Conduct (Ill. R. Prof'l Conduct (2010) R. 1.15(e) (eff. July 1, 2015) ), to hold the disputed funds until the disagreement was resolved. Rule 1.15(e) provides, in part, that a lawyer

"in possession of property in which two or more persons (one of whom may be the lawyer) claim interest, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute." Id.

Prospect contends the trial court should have considered Saulter's professional obligations under Rule 1.15(e) before dismissing its complaint.

¶ 35 Our supreme court has the exclusive authority to prescribe rules governing attorney conduct and to discipline attorneys who violate these rules.

People ex rel. Brazen v. Finley , 119 Ill. 2d 485, 494, 116 Ill.Dec. 683, 519 N.E.2d 898 (1988). Consistent with this authority, the supreme court has adopted the Illinois Rules of Professional Conduct, appointed the ARDC, and "created a procedural scheme to enhance the ARDC in performing its duties." Id. "[T]hrough the use of its exclusive judicial power to prescribe rules governing attorney conduct, and to discipline attorneys for violating those rules, [our supreme court] has created a comprehensive program to regulate attorneys and punish their misconduct." Id. Our supreme court has stressed that rules of professional conduct are mandatory and "[a]ttorneys who fail to understand them or follow them do so at their peril." In re Demuth , 126 Ill. 2d 1, 13, 127 Ill.Dec. 785, 533 N.E.2d 867 (1988).

¶ 36 Although the Illinois Rules of Professional Conduct are "a safe guide for professional conduct" and attorneys may be disciplined for failing to observe them ( In re Himmel , 125 Ill. 2d 531, 538, 127 Ill.Dec. 708, 533 N.E.2d 790 (1988) ),

"[v]iolation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. * * * The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability." Ill. R. Prof'l Conduct (2010), Preamble (eff. Jan. 1, 2010).

While violation of the professional conduct rules may be relevant to the standard of care in a legal malpractice claim, the rules themselves do not establish a separate duty or cause of action. Owens v. McDermott, Will & Emery , 316 Ill. App. 3d 340, 353, 249 Ill.Dec. 303, 736 N.E.2d 145 (2000).

¶ 37 Thus, even if Saulter had a duty under Rule 1.15 to hold the settlement funds in his trust account, an issue we need not address, his failure to do so cannot serve as the basis of a claim by Prospect. This does not, however, preclude the ARDC from considering Saulter's conduct, and we direct the appellate court clerk to send a copy of this opinion to the ARDC for further investigation.

¶ 38 Affirmed; opinion referred to the ARDC.

Presiding Justice Neville concurred in the judgment and opinion.

Justice Mason specially concurred, with opinion.

¶ 39 JUSTICE MASON, specially concurring:

¶ 40 I concur in the majority's decision to affirm dismissal of Prospect's complaint. The agreement entered into between Prospect and Wright-Housen was clearly usurious as its 4% monthly compounded interest translated into an annual interest rate in excess of 60%. Whether or not the agreement was, in addition, champertous, it would not be enforced in any court in Illinois or Minnesota. See 815 ILCS 205/4 (West 2016) (9% maximum annual rate of interest on loans); Minn. Stat. Ann. § 334.01 (West 2016) (8% maximum rate). This is particularly true given that any recovery in Wright-Housen's wrongful death case inured not only to her but also to her minor children's benefit. No court in Illinois would approve a minor's settlement of a wrongful death claim that provided for the entirety of the recovery to go to a lawsuit lender. Ott v. Little Co. of Mary Hospital , 273 Ill. App. 3d 563, 573, 210 Ill.Dec. 75, 652 N.E.2d 1051 (1995) (court may only approve settlement that is in best interest of the minor).

¶ 41 I write specially because I am troubled by the implication that an attorney's express undertaking (whether labeled a "certification" or an "acknowledgement") to hold funds in his or her client account does not give rise to any claim by the party to whom the commitment was made when funds are later disbursed (i) in clear contravention of the promise and (ii) to the attorney's benefit. Saulter initiated the transaction with Prospect on behalf of his client. Indeed, this was the second such loan Saulter had arranged for Wright-Housen; part of the proceeds from Prospect's loan were used to pay off an earlier loan from another lawsuit lender. Saulter, who certified that he had "reviewed" and "explained" the terms and conditions of the agreement to Wright-Housen, undoubtedly knew that if he did not agree to be bound by the irrevocable letter of direction that required him to hold the proceeds of any settlement or judgment pending resolution of Prospect's claim under the loan agreement, Prospect would not have made the loan. The record does not disclose what use Wright-Housen made of the proceeds of the loan, but it is entirely possible that without Prospect's money, Wright-Housen's financial straits may have forced her to accept a lowball settlement offer (resulting in lower attorney fees to Saulter). The fact that Saulter believed, correctly as it turns out, that Prospect's agreement was unenforceable, did not give him license to disregard the commitments both he and his client voluntarily made. And the fact that the victim of the breach of those commitments was a usurious lender should not lead us to overlook the serious ethical concerns presented by Saulter's conduct.

      As the majority notes, Black's Law Dictionary defines "champerty" as "[a]n agreement between a stranger to a lawsuit and a litigant by which the stranger pursues the litigant['s] claims as consideration for receiving part of any judgment proceeds." Black's Law Dictionary 224 (7th ed. 1999). Black's defines the related practice of "maintenance" as "[a]ssistance in prosecuting or defending a lawsuit given to a litigant by someone who has no bona fide interest in the case; meddling in someone's else's litigation." Id. at 965. Prospect loaned Wright-Housen a modest sum of money at a usurious rate of interest, but did not otherwise assume control over or meddle in her wrongful death lawsuit. It is therefore debatable whether the agreement is, in fact, champertous. See Miller UK Ltd. v. Caterpillar, Inc. , 17 F.Supp.3d 711, 725 (N.D. Ill. 2014) (applying Illinois law to conclude that third-party litigation funding did not constitute champerty or maintenance); but see Prospect Funding Partners, LLC v. Williams , No. 27-CV-13-8745, 2014 Minn. Dist. LEXIS 2, *28-29 (Dist. Ct. Hennepin County, Minn., May 5, 2014) (invalidating similar agreement under Minnesota law as contrary to public policy).


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Joseph P. MEO, Defendant-Appellee.
    No. 2-17-0135
    Appellate Court of Illinois, Second District.
    Opinion filed March 14, 2018
    Richard D. Amato, State's Attorney, of Sycamore (Patrick Delfino, Lawrence M. Bauer, and Barry W. Jacobs, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Dale J. Clark, of Slingerland & Clark, P.C., of Sycamore, for appellee.
   JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Joseph P. Meo, was arrested and charged with driving under the influence of alcohol (DUI) ( 625 ILCS 5/11-501(a)(2) (West 2016) ) and obstructing a peace officer ( 720 ILCS 5/31-1 (West 2016) ). Defendant's driving privileges were summarily suspended ( 625 ILCS 5/11-501.1(a) (West 2016) ). Defendant petitioned to rescind the summary suspension. In addition, defendant filed a motion to quash his arrest and suppress evidence, arguing that there was no basis for the stop and that the arrest was not supported by probable cause. Following a hearing, the trial court granted defendant's motion. The State filed a certificate of impairment and timely appealed (see Ill. S. Ct. R. 604(a)(1) (eff. Mar. 8, 2016) ). We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 A hearing on defendant's motion to quash his arrest and suppress evidence took place on February 1, 2017. Sycamore police officer Greyson Scott was the sole witness. Scott testified that he had been a police officer for just over two years. On December 10, 2016, at about 8:30 p.m., Scott was dispatched to Casey's General Store (Casey's), located at the intersection of Plank Road and Main Street, to investigate a report of a possible drunk driver. It was snowing heavily at the time. According to Scott, a clerk at Casey's called dispatch to report a possible drunk driver in the building. Based on the clerk's report, dispatch then advised Scott that "the male driver was driving a white Scion. He had driven up to the front of the building, hitting the curb, going over the curb, and the store clerk described it as almost going into the building." Scott testified that, although he never spoke directly with the clerk, his sergeant did. After receiving the call from dispatch, Scott drove to Casey's, but rather than entering the Casey's parking lot, Scott parked his squad car in a parking lot east of Casey's so that he would have a better view of the vehicles parked in the Casey's parking lot. Upon his arrival, Scott saw a white Scion parked in the Casey's parking lot, and "fairly soon" thereafter he saw a white male, later identified as defendant, enter the vehicle.

¶ 4 Scott testified that defendant proceeded to exit the Casey's parking lot, heading toward Plank Road, with his vehicle's headlights on, and drove in front of Scott's vehicle. According to Scott, defendant was on a frontage road that was not marked as a city roadway or maintained by the city; it was an "exit way" that provided access to Plank Road from Casey's. As defendant drove past Scott's squad car, Scott observed defendant's headlights shut off for a "brief time" and then turn back on. Scott estimated that the headlights were off for "one to four seconds." Scott followed defendant's vehicle as it proceeded from Casey's and onto Plank Road. Scott observed defendant properly signal before entering Plank Road. Scott followed defendant's vehicle as it proceeded west toward the intersection of North Main Street and Plank Road. Scott observed defendant properly enter the left turn lane and properly signal before turning left onto North Main Street. After following defendant for about 30 seconds and observing defendant commit no traffic violations, Scott activated the lights on his squad car, and defendant stopped his vehicle appropriately. Scott stopped defendant's vehicle based on the blinking headlights and the original call. A video recording was made from Scott's squad car camera from just before the time that defendant's vehicle passed in front of Scott at Casey's until the time that Scott arrested defendant for DUI. The video was played for the court and entered into evidence.

¶ 5 Scott testified that, after pulling over defendant's vehicle, he approached the vehicle and spoke with defendant through the open driver's-side window. While speaking to defendant, Scott smelled alcohol on defendant's breath and noted that defendant's "eyes were glassy and bloodshot, his speech was thick-tongued and slurred." Defendant told Scott that he drank three beers about six or seven hours earlier. Scott asked defendant for his driver's license and proof of insurance. According to Scott, defendant had a hard time getting his driver's license out of his wallet and "fumbled his wallet a few times." Scott testified: "He literally had it in his hands and he dropped it out onto his lap and picked it back up and was kind of using multiple fingers to kind of manipulate the wallet in order to open it correctly." Scott testified that the driver's license was located behind a plastic flap and that it took defendant a few tries to pull the license out of the wallet. Scott stated that defendant also pulled a credit card out of the wallet and handed him the credit card instead of his insurance card.

¶ 6 Scott testified that he decided to perform field sobriety tests on defendant and asked him to step out of his vehicle. Because of the heavy snowfall and wind, Scott asked defendant to accompany him to a nearby Jewel pharmacy drive-through pickup area, with an overhang, so that they could be protected from the snow. Scott testified that, when he asked defendant to exit and lock his vehicle, defendant did so. Scott agreed that he wrote in his police report that defendant swayed and seemed unbalanced as he walked. Scott also agreed, however, that the video showed that defendant had no difficulty walking toward the police car in the deep snow. The video also showed that defendant, while walking toward the police vehicle, dropped his keys and was able to pick them up without difficulty. In addition, Scott agreed that, although he testified that he smelled alcohol on defendant's breath, he made no such mention on the video.

¶ 7 Scott transported defendant to Jewel to perform the field sobriety tests. The area under the overhang was mostly dry with just some blowing snow on the pavement. Scott testified that he asked defendant for consent to perform the tests and that defendant agreed to participate. Ultimately, defendant did not perform the tests. Scott testified that he had instructed defendant four times on how to perform the horizontal gaze nystagmus (HGN) test. Defendant told Scott several times that he had some physical limitations due to a stroke. The video shows defendant telling Scott that he suffered a stroke a few months ago. As Scott was instructing defendant on how to perform the HGN test, defendant told Scott that he needed to have things repeated and asked Scott to speak slower. Defendant told him that he did not understand. During the test, defendant again told Scott that he had had a stroke and that he could not do a lot of things. Scott testified that defendant seemed very confused. Scott agreed that defendant did not have any trouble removing his glasses for the test and that defendant did not sway or stumble as he stood before him during the test. Scott repeatedly attempted to have defendant follow the top of his finger using only his eyes. Defendant told Scott that he could be having a stroke. When Scott asked defendant if he needed an ambulance, defendant responded, "I don't know."

¶ 8 Scott testified that he had offered nonstandardized field sobriety tests to defendant because defendant was unable to complete the HGN test. The video shows Scott asking defendant whether he had any physical limitations that would prevent him from performing the one-leg-stand test or the walk-and-turn test. Defendant said yes, because his legs had given out during his stroke. Scott asked defendant if he wanted to attempt the tests, and when defendant did not give a responsive answer, Scott told defendant that he assumed that the answer was no. Scott then offered to have defendant perform the alphabet test and asked defendant if he knew his A-B-Cs. Defendant responded that he "lost all that over the years," but then quickly asked, "A-B-C-D-E-F-G-H?" Scott asked defendant to recite the alphabet, starting at B and ending with O. Defendant said that he did not want to try it. When Scott asked defendant to count, defendant stated that he could not count anymore. Defendant stated that he had had a stroke and that his wife had left him.

¶ 9 The video further shows that, when Scott expressed to defendant that he felt that defendant was impaired by alcohol and unfit to drive, defendant asked to walk home. Scott then asked defendant to take a breath test. Defendant replied that he would rather just walk home. Scott again asked defendant to take a breath test. Defendant stated that he was "in stroke mode." When Scott again asked if defendant needed to go to the hospital, defendant said no. Scott thereafter arrested defendant for DUI.

¶ 10 The trial court granted defendant's motion to quash his arrest and suppress evidence, finding that Scott did not have reasonable suspicion to make an investigatory stop of defendant and that Scott lacked probable cause to arrest defendant for DUI.

¶ 11 The trial court's primary basis for granting the motion was the lack of reasonable suspicion to justify the stop. With respect to the tip, the trial court stated that it did not know who the tipster was or his or her basis of knowledge, referring to the tipster as "anonymous." The court also noted that the tipster did not provide a sufficient description of the driver of the vehicle, stating: "They don't give a description of the person who drove the car, male, female, white, black, or anything like that, so for all we know, we don't know if it was the defendant who potentially almost drove in the Casey's store." With regard to the headlight issue, the court found that the video did not corroborate Scott's testimony that the headlights were off for up to four seconds, noting that, "[a]t best," the lights were off for only two seconds. Moreover, the court found that the headlights being turned off for two seconds was not a violation of the traffic code, as it did not occur on a public highway.

¶ 12 As an alternative basis for granting the motion, the trial court found that the DUI arrest was not supported by probable cause. The court noted that the video showed that defendant was able to properly turn from private property onto Plank Road and drive down Plank Road to Main Street, where defendant again made a proper turn. The court acknowledged defendant's admission to drinking three beers a number of hours before and Scott's testimony that defendant's eyes were bloodshot. The court disagreed with Scott's characterization of defendant's speech as slurred, finding Scott's testimony on the issue not credible. The court noted that, although the video was difficult to hear at points, the court had no difficulty understanding what defendant was saying. The court also observed that the video showed that defendant was able to lock his car, walk to the squad car, remove his glasses, and put his glasses back on without difficulty. The court also found that, although defendant dropped his keys, he was able to pick up the keys with no problems, did not sway during the HGN test, and performed the alphabet test without difficulty.

¶ 13 The State filed a timely notice of appeal and certificate of impairment.

¶ 14 II. ANALYSIS

¶ 15 The State argues that the trial court erred in granting defendant's motion to quash his arrest and suppress evidence. According to the State, Scott's investigatory stop of defendant's vehicle was supported by a reasonable suspicion that Scott was committing DUI, and Scott's subsequent arrest of defendant for DUI was supported by probable cause.

¶ 16 We apply a two-part standard of review when reviewing the trial court's ruling on a motion to quash arrest and suppress evidence. People v. Almond , 2015 IL 113817, ¶ 55, 392 Ill.Dec. 227, 32 N.E.3d 535. We afford great deference to the trial court's findings of fact, and we reverse those findings only if they are against the manifest weight of the evidence. Id. However, we review de novo the trial court's ultimate ruling as to whether suppression is warranted. Id.

¶ 17 We first consider whether the trial court erred in finding that Scott did not have a reasonable suspicion to stop defendant's car. A vehicle stop is analyzed under the principles set forth in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). People v. Henderson , 2013 IL 114040, ¶ 25, 370 Ill.Dec. 804, 989 N.E.2d 192. " Terry authorizes a police officer to effect a limited investigatory stop where there exists a reasonable suspicion, based upon specific and articulable facts, that the person detained has committed or is about to commit a crime." People v. Smulik , 2012 IL App (2d) 110110, ¶ 5, 357 Ill.Dec. 820, 964 N.E.2d 183. In evaluating whether a reasonable suspicion existed, a reviewing court should objectively consider whether information known to the officer at the time of the stop would warrant a person of reasonable caution to believe that a stop was necessary to investigate the possibility of criminal activity. People v. Shafer , 372 Ill. App. 3d 1044, 1048-49, 311 Ill.Dec. 359, 868 N.E.2d 359 (2007). We note that reasonable suspicion justifying a Terry stop is a less exacting standard than probable cause to make an arrest. Id. at 1048, 311 Ill.Dec. 359, 868 N.E.2d 359.

¶ 18 A Terry stop can be based on information received from an informant ( People v. Linley , 388 Ill. App. 3d 747, 750, 328 Ill.Dec. 131, 903 N.E.2d 791 (2009) ), under certain circumstances:

"[T]he informant's tip must bear some indicia of reliability in order to justify the stop. [Citation.] [A] reviewing court should consider the informant's veracity, reliability, and basis of knowledge. [Citation.] Whether a tip is sufficient to support a stop is not determined according to any rigid test but rather depends on the totality of the circumstances." (Internal quotation marks omitted.) Smulik , 2012 IL App (2d) 110110, ¶ 7, 357 Ill.Dec. 820, 964 N.E.2d 183.

One factor that affects the reliability of a tip is whether the tip is from an anonymous or identified party. Shafer , 372 Ill. App. 3d at 1050-52, 311 Ill.Dec. 359, 868 N.E.2d 359. When determining the reliability of an anonymous tip, courts have considered the following factors: (1) whether there was a " 'sufficient quantity of information' " to allow the officer to be certain that the vehicle stopped was the one identified by the tipster; (2) the time interval between when the police located the suspect vehicle and when the information was first relayed to the police; (3) whether the tip was " 'based upon contemporaneous eyewitness observations' "; and (4) whether the tip was " 'sufficiently detailed to permit the reasonable inference that the tipster has actually witnessed an ongoing motor vehicle offense.' " (Internal quotation marks omitted.) Id. at 1050, 311 Ill.Dec. 359, 868 N.E.2d 359 (quoting State v. Sousa , 151 N.H. 297, 855 A.2d 1284, 1290 (2004) ). A call to a police emergency line does not constitute an " 'anonymous' tip" and should not be viewed "with the skepticism applied to tips provided by confidential informants," because the caller places his or her anonymity at risk. Id. at 1054, 311 Ill.Dec. 359, 868 N.E.2d 359. Furthermore, when the tip concerns a possible drunk driver, less corroboration of the tip is required, because "[a]n intoxicated person behind the wheel of a car presents an imminent danger to the public that is difficult to thwart by means other than a Terry stop." Id. at 1052, 311 Ill.Dec. 359, 868 N.E.2d 359.

¶ 19 We first consider whether the tip from the clerk at Casey's was sufficiently reliable to justify the stop of defendant's vehicle. We determine that it was. First, we note that the trial court's findings that the tipster was "anonymous" and that the tip did not sufficiently identify defendant were against the manifest weight of the evidence. With regard to anonymity, the testimony clearly established that the clerk telephoned the police, identified the Casey's at which he or she was employed, and later spoke directly with a police sergeant. As the clerk was readily identifiable, the tip was not anonymous. See id. at 1050-52, 311 Ill.Dec. 359, 868 N.E.2d 359. With regard to the content of the tip, Scott's testimony established that the tipster specifically described the driver of the vehicle as a white male and, in addition, provided the make and color of the vehicle.

¶ 20 Given the fact that the tip was not anonymous, it bears an initial degree of reliability. In addition, other factors that have been used to evaluate the reliability of anonymous tips further bolster a finding of reliability here. See id. at 1050, 311 Ill.Dec. 359, 868 N.E.2d 359. The clerk specified that a white male, driving a white Scion, hit the curb at Casey's and almost hit the building; that the driver was in the store; and that the driver was possibly drunk. Scott arrived at Casey's shortly after receiving the call from dispatch. Scott observed a white Scion and fairly soon thereafter observed a white male enter the vehicle. Thus, it is clear that the tip was reliable in that it was based on contemporaneous events and provided enough information to allow Scott, who arrived within a short time of learning of the tip, to identify defendant as the person referred to by the tipster. In addition, the tip was sufficiently detailed to permit a reasonable inference that defendant was committing DUI, given the clerk's description of defendant's driving as well as the clerk's close proximity to defendant and ability to observe defendant in Casey's. See id. at 1054-55, 311 Ill.Dec. 359, 868 N.E.2d 359 (although record was silent as to what the defendant did to cause the tipster to call the police, the close proximity during a hand-to-hand exchange between the tipster and the defendant at a drive-through window supported reliability of the tipster's assessment that the defendant was intoxicated).

¶ 21 In addition to the reliability of the tip, Scott observed defendant turn his headlights off and then back on again as defendant made his way from Casey's to the public highway. We disagree with the State that this factor, standing alone, was sufficient to support the investigatory stop, as defendant was not traveling on the public highway at the time and thus did not violate section 12-101(a) or 12-201(b) of the Illinois Vehicle Code (Code) (see 625 ILCS 5/12-101(a), 12-201(b) (West 2016) ). However, it was certainly a factor for Scott to consider, along with the other information he had before him.

¶ 22 Defendant argues that our decision in Village of Mundelein v. Minx , 352 Ill. App. 3d 216, 287 Ill.Dec. 321, 815 N.E.2d 965 (2004), supports the trial court's order. We disagree. In Minx , the caller simply reported that the defendant was " 'driving recklessly.' " Id. at 222, 287 Ill.Dec. 321, 815 N.E.2d 965. We said that, "without indicating what observations led him to this conclusion," this information standing alone did not justify the investigatory stop. Id. In the instant case, the caller provided enough detail to permit a reasonable inference that defendant was possibly intoxicated. The clerk saw defendant hit the curb, go over it, and nearly strike the store building. The clerk then had the opportunity to observe defendant "in the building" before calling the police.

¶ 23 Finally, we note that, for the purpose of determining the existence of reasonable suspicion, "[t]he facts should not be viewed with analytical hindsight, but instead should be considered from the perspective of a reasonable officer at the time that the situation confronted him or her." People v. Thomas , 198 Ill. 2d 103, 110, 259 Ill.Dec. 838, 759 N.E.2d 899 (2001). Here, at the time of the stop, Scott was acting on a reliable tip that defendant had driven over a curb and almost hit a building and was possibly drunk. After locating defendant, Scott observed him blinking his headlights for no apparent reason.

¶ 24 Based on the totality of the circumstances, we find that the investigatory stop of defendant's vehicle was supported by a reasonable suspicion that defendant was committing an offense, and thus the trial court erred in granting defendant's motion to quash his arrest and suppress evidence on this basis.

¶ 25 We next consider whether the trial court erred in finding that Scott lacked probable cause to arrest defendant for DUI. Probable cause to arrest exists when the totality of 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. People v. Wear , 229 Ill. 2d 545, 563-64, 323 Ill.Dec. 359, 893 N.E.2d 631 (2008). Probable cause concerns probabilities and not technicalities. Id. at 564, 323 Ill.Dec. 359, 893 N.E.2d 631. That is, probable cause is based on the factual and practical considerations of everyday life upon which reasonable, prudent people, not legal technicians, act. Id. Probable cause is more than a mere suspicion ( People v. Wingren , 167 Ill. App. 3d 313, 320, 118 Ill.Dec. 62, 521 N.E.2d 130 (1988) ) but less than proof beyond a reasonable doubt ( Wear , 229 Ill. 2d at 564, 323 Ill.Dec. 359, 893 N.E.2d 631 ).

¶ 26 The elements of DUI under section 11-501(a)(2) of the Code ( 625 ILCS 5/11-501(a)(2) (West 2016) ) are: (1) the defendant was driving or in actual physical control of the vehicle and (2) the defendant was under the influence of alcohol. Here, only the second element is at issue.

¶ 27 There are several pieces of evidence indicating that defendant was under the influence of alcohol. When considered in their totality, they provided Scott with probable cause to arrest defendant for DUI. Scott testified that, when he approached defendant's vehicle, the window was down and he smelled the odor of alcohol on defendant's breath. In addition, defendant admitting to drinking three beers about six or seven hours earlier. See, e.g. , People v. McKown , 236 Ill. 2d 278, 302, 338 Ill.Dec. 415, 924 N.E.2d 941 (2010) ("[A]ny evidence of alcohol consumption is relevant to the question of impairment."). Scott observed that defendant's "eyes were glassy and bloodshot" and that his speech was "thick-tongued and slurred." See Wingren , 167 Ill. App. 3d at 320, 118 Ill.Dec. 62, 521 N.E.2d 130 ("Probable cause to arrest a motorist for DUI has been commonly established by the testimony of the arresting officer, in spite of the defendant's contradictory testimony, that the motorist had about him or her the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes."). Although the trial court found that defendant was "understandable," the video supports Scott's testimony concerning defendant's speech. Scott also testified that defendant had a hard time getting his driver's license out of his wallet and "fumbled his wallet a few times," initially giving Scott a credit card rather than his insurance card.

¶ 28 When Scott asked defendant to take a breath test, defendant responded that he was "in stroke mode," yet refused Scott's offer to call an ambulance. Moreover, when Scott expressed that he felt that defendant was impaired by alcohol and unfit to drive, defendant asked to walk home. And when Scott again asked defendant to take the breath test, defendant refused. Defendant's refusal to take the breath test and his request to walk home were circumstantial evidence of his consciousness of guilt and further supported probable cause to arrest. See People v. Weathersby , 383 Ill. App. 3d 226, 230, 321 Ill.Dec. 898, 890 N.E.2d 620 (2008) (refusal to take breath test was circumstantial evidence of the defendant's consciousness of guilt).

¶ 29 In sum, defendant's fumbling of his driver's license and producing a credit card rather than an insurance card, defendant's glassy and bloodshot eyes, defendant's slurred speech, the odor of alcohol on defendant's breath, defendant's admission to drinking, and defendant's refusal to take a breath test would cause a reasonably cautious person to believe that defendant was impaired.

¶ 30 Defendant's reliance on People v. Day , 2016 IL App (3d) 150852, 409 Ill.Dec. 395, 67 N.E.3d 607, and People v. Motzko , 2017 IL App (3d) 160154, 413 Ill.Dec. 525, 78 N.E.3d 517, does not warrant a different conclusion. In Day , the court found that the defendant's consumption of alcohol and glassy and bloodshot eyes were insufficient, without more, to give rise to probable cause to arrest for DUI. Day , 2016 IL App (3d) 150852, ¶ 38, 409 Ill.Dec. 395, 67 N.E.3d 607. Here, as noted, we have more. Moreover, unlike in Day , defendant did not successfully complete any field sobriety tests. In Day , the court specifically found that, although the field sobriety tests were improperly administered on a wet, slick surface while it was raining, they gave no indication that the defendant was suffering from any sort of physical impairment. Id. ¶ 37.

¶ 31 In Motzko , the court affirmed the trial court's grant of the defendant's motion to suppress. Motzko , 2017 IL App (3d) 160154, ¶ 26, 413 Ill.Dec. 525, 78 N.E.3d 517. There, the arresting officer testified that he had arrested the defendant based on the odor of alcohol on the defendant's breath, the defendant's glassy and bloodshot eyes, the defendant's admission to drinking, the fact that the defendant was in an accident, and the defendant's performance on the HGN test. Id. ¶¶ 22-25. The officer testified that the defendant's performance on the HGN test caused him to believe that the defendant was impaired. Id. ¶ 25. The trial court found the officer to lack credibility on the issue of impairment, after concluding that the officer was not properly trained to understand the results of HGN testing. Id.

¶ 32 Defendant argues that here, as in Motzko , the court had similar credibility concerns. We find the present case distinguishable, as the trial court's concerns are not supported by the evidence. First, the court questioned Scott's credibility on the issue of how long defendant's headlights were off. Scott estimated that the headlights were off for one to four seconds. The trial court found that the lights were off for "[a]t best" two seconds. Our view of the video confirms the trial court's finding that the lights were off for about two seconds. But we fail to see how this renders Scott's testimony of one to four seconds incredible. Second, the trial court found Scott's testimony regarding defendant's speech incredible as well. Scott described defendant's speech as "thick-tongued and slurred." Having viewed the video, we cannot say that Scott's description of defendant's speech was inaccurate. Thus, we find that the trial court's credibility concerns do not support affirmance of the court's ruling.

¶ 33 Accordingly, we hold that Scott had probable cause to arrest defendant for DUI.

¶ 34 III. CONCLUSION

¶ 35 Based on the foregoing, we reverse the judgment of the circuit court of De Kalb County and remand the cause.

¶ 36 Reversed and remanded.

Justices McLaren and Burke concurred in the judgment and opinion.

      Defendant's petition to rescind the summary suspension of his driving privileges was subsequently granted by agreement of the parties and is not at issue in this appeal.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Katie LAWSON, Defendant-Appellant.
    NO. 4-17-0105
    Appellate Court of Illinois, Fourth District.
    FILED March 16, 2018
    Michael J. Pelletier, Jacqueline L. Bullard, and Allen H. Andrews, of State Appellate Defender's Office, of Springfield, for appellant.
    Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 In July 2012, a grand jury indicted defendant, Katie Lawson, on single counts of aggravated driving under the influence of alcohol (count I) ( 625 ILCS 5/11-501(d)(1)(F) (West 2010) ), failure to report an accident involving death (count II) ( 625 ILCS 5/11-401(b) (West 2012) ), and failure to report an accident involving personal injury (count III) (id. ). In September 2012, a grand jury indicted defendant on three additional counts of aggravated driving under the influence "of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof" (counts IV, V, and VI) (id. § 11-501(d)(1)(F) ). Defendant also received six traffic citations (counts VII to XII), including four for driving under the influence ( 625 ILCS 5/11-501(a)(1), (a)(2), (a)(5), (a)(6) (West 2010) ), one for driving while license suspended (id. § 6-303(a) ), and one for failure to reduce speed to avoid an accident (the record on appeal does not contain a copy of this citation).

¶ 2 In November 2013, defendant entered an open plea to counts I and IV through XII. After a bench trial, the trial court found defendant guilty of counts II and III. In January 2014, the court sentenced defendant to consecutive prison terms of eight years for aggravated driving under the influence of alcohol (count I) and four years for failing to report an accident involving death (count II). In September 2014, the court denied defendant's motion to reconsider sentence, and defendant appealed. In August 2016, this court remanded the case for a corrected certificate under Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). In December 2016, defense counsel filed a Rule 604(d) certificate and an "Amended Motion to Reduce Sentence." In January 2017, the trial court denied the amended motion.

¶ 3 Defendant appeals, asserting the trial court erred in denying her request for probation. We affirm.

¶ 4 I. BACKGROUND

¶ 5 All of the charges in this case relate to defendant's actions on June 24, 2012. In November 2013, the trial court held defendant's plea hearing, wherein defendant agreed to enter an open plea to counts I and IV through XII. In its factual basis, the State indicated that, on the date in question, defendant drove on a suspended license a "silver Nissan" around 1:30 a.m., after consuming alcohol that evening. An accident reconstructionist would testify defendant approached the intersection of Washington and Main Streets, in Bloomington, Illinois, at a speed of 47 miles per hour. Due to her intoxication, defendant struck Lauren Leffler and Nicholas Jefferson as they walked across the intersection. Defendant did not stop her vehicle at the scene of the accident and failed to report she was in an accident to law enforcement officials. Leffler died as a result of the injuries she suffered after being struck by defendant's vehicle. Testing revealed defendant's blood alcohol concentration to be 0.265 and also indicated the presence of tetrahydrocannabinol (THC), or cannabis.

¶ 6 Following the State's factual basis, defendant pleaded guilty to counts I and IV through XII. The trial court found the plea was knowingly and voluntarily made. The court then proceeded to a bench trial on the two remaining charges, failure to report an accident involving death (count II) and failure to report an accident involving personal injury (count III). Defendant admitted in an interview following the accident she did not call the police. However, she argued that the statute provided an exception to reporting the accident "as soon as possible but in no case later than one-half hour after such motor vehicle accident." See 625 ILCS 5/11401(b) (West 2012). Defendant argued, following the accident, she was "hysterical" and unable to "form a coherent thought" and, thus, "incapacitated from reporting" (see id. ). After hearing the evidence and the parties' arguments, the court concluded that defendant "was of the mindset to realize that an accident had occurred on the night in question, and that she was capable of calling the police and it was not done." The court found defendant guilty of counts II and III.

¶ 7 In January 2014, the trial court conducted the sentencing hearing. Defendant presented the testimony of Dr. Hwan Jeong, a medical doctor board certified in hematology. After defendant's arrest, Dr. Jeong diagnosed defendant with immune thrombocytopenic purpura (ITP). Dr. Jeong testified ITP is a blood disorder in which the immune system destroys platelets. As a result, people with ITP develop low platelet counts. Dr. Jeong characterized defendant's circumstances as "very dangerous." According to Dr. Jeong, defendant required "appropriate care," including "a transfusion regimen, or a weekly visit to the doctor's office." Defendant received replacement therapy when her weekly blood draw showed a low platelet count, usually every four to five weeks. Replacement therapy was administered intravenously by a nurse in a doctor's office or hospital. Dr. Jeong believed it would be in defendant's best interest medically to remain under his care in the community and not be incarcerated. The trial court confirmed a platelet draw involved the same procedure as a blood draw.

¶ 8 The State presented the testimony of Jeanene Payne, the medical supervisor for the McLean County detention facility. Payne testified she is familiar with defendant's medical needs and contacted the Illinois Department of Corrections (Department) regarding defendant's medical condition. The medical director for the Department assured Payne that the Department "had offenders with the particular situation that [defendant] has in the past and cared for them without a problem."

¶ 9 The State recommended a sentence of 12 years in prison for aggravated driving under the influence of alcohol (count I), a sentence of 9 years in prison for failure to report an accident involving death (count II), and a sentence of 364 days in jail for driving while license suspended (count XI). Defendant requested probation, characterizing her "extreme chronic and serious medical condition" as "extraordinary circumstances" requiring probation.

¶ 10 In mitigation, the trial court considered defendant's lack of a prior felony conviction and hardship on her children. It also considered defendant's "medical condition" and remorse. In aggravation, the court considered the many "shattered lives" left in the wake of defendant's "reckless conduct" and defendant's failure to stop after hitting Leffler and Jefferson. The court also considered defendant "continually lied" to law enforcement officers after she was arrested, causing "additional work" for officers. The court noted the need to deter others from committing similar crimes.

¶ 11 The trial court stated that a sentence of probation would deprecate the seriousness of defendant's conduct and no extraordinary circumstances warranted probation "even with [defendant's] medical condition." The court sentenced defendant to eight years in prison for aggravated driving under the influence of alcohol (count I), four years in prison for failure to report an accident involving death (count II), and a sentence of "court costs plus conviction" for driving while license suspended (count XI). The court found the remaining counts merged with counts I and II and defendant's sentences were "mandatory consecutive."

¶ 12 Following the sentencing hearing, defendant filed a motion to reconsider her sentence. Defendant argued her sentence was excessive and the trial court did not properly consider factors in aggravation and mitigation, including "the severity of [d]efendant's medical condition" as "extraordinary circumstances" requiring a sentence of probation. In September 2014, the trial court conducted a hearing on defendant's motion. Dr. Jeong testified he had treated defendant for approximately six months. He received, "most of the time," defendant's weekly blood test results from the prison. Dr. Jeong treats defendant in his office once every three or four weeks. Defendant complained of "sleeping problems and body ache and headache." Dr. Jeong prescribed medication for defendant but she did not always receive the medication because it was not "approved" by the Department. Defendant does receive the medication for her blood disorder and it "has been very effective." Dr. Jeong has consulted by telephone with Dr. Steve Kottemann, a Department medical doctor, two or three times regarding defendant's care. In Dr. Jeong's opinion, defendant's medical condition was stable.

¶ 13 Dr. Kottemann testified that he is a physician with the Department. He began providing defendant's medical care in January 2014. He recommended defendant be placed in the infirmary "because occasionally, fights do break out, and I was concerned if she had a low platelet count and got injured, she could have extensive bruising or bleeding." He is also able to provide greater oversight of defendant's medical care with defendant's placement in the infirmary. Dr. Kottemann testified that he has consulted with Dr. Jeong on approximately three occasions. He follows Dr. Jeong's recommendations for the treatment of defendant's blood disorder, stating "[Dr. Jeong] manages that completely." He agreed with Dr. Jeong defendant's medical condition had "remained the same."

¶ 14 The trial court denied defendant's motion to reconsider her sentence, confirming its earlier finding of no extraordinary circumstances requiring a sentence of probation. The court noted defendant's condition was stable, Drs. Jeong and Kottemann had worked together to provide defendant the appropriate medical care, and defendant's placement in the infirmary provided continuous oversight by nursing staff.

¶ 15 Defendant appealed, and upon the parties' agreed motion, this court remanded the cause for a new proceeding in strict compliance with Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014). People v. Lawson , No. 4-14-0905 (2016) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 16 On remand, defense counsel filed a Rule 604(d) certificate and an "Amended Motion to Reduce Sentence." Defendant argued her "severe and unusual medical condition" and "the presumption for probation where there is no significant criminal history" were "extenuating circumstances" warranting probation. The amended motion stated defendant had been diagnosed with a new medical condition, "Chiari I Malformation." The costs for the "IVC treatment" alone had exceeded $2.5 million.

¶ 17 In January 2017, the trial court conducted a hearing on the amended motion to reduce defendant's sentence. Dr. Jeong testified he continued to treat defendant's blood disorder. Defendant received "medicine" twice each month and was treated in Dr. Jeong's office once each month. Dr. Jeong confirmed he received a note from a consultant stating defendant had been diagnosed with Chiari malformation, an "anatomic malform structure in the brain." Dr. Jeong did not think the new diagnosis was related to defendant's blood disorder. The new diagnosis was not his specialty. Dr. Jeong testified defendant's condition remained stable.

¶ 18 Lisa Marie Johnson testified she is the health care unit administrator at Logan Correctional Center. Defendant resides in the correctional center's infirmary. She may go to the visiting area or the law library. Jamie Barker testified she is defendant's mother. Barker secured copies of defendant's medical records and completed a "cost analysis" of defendant's medical expenses. With two months of bills missing, the expenses for defendant's treatment totaled $2,588,355.20 at the time of hearing, January 2017. Each two-day platelet infusion costs approximately $100,000.

¶ 19 Defendant testified that, because of her blood disorder, she is housed in the medical unit. She has limited contact with the general prison population. Defendant confirmed she goes to the visiting area of the prison and law library but has few opportunities for recreation.

¶ 20 At the conclusion of the hearing, the trial court stated it considered "the totality of the circumstances," "reread the sentencing hearing," and "reconsidered the evidence." The court concluded "the sentence that was issued was a fair and appropriate sentence."

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 Defendant first argues the trial court abused its discretion in sentencing her for aggravated driving under the influence of alcohol where it failed to find extraordinary circumstances existed, requiring she receive a sentence of probation. As relief, defendant requests this court reduce her sentence to a term of probation. Alternatively, defendant requests this court vacate the sentence of imprisonment and remand the cause to the trial court with directions to grant defendant probation.

¶ 24 Citing People v. Bolyard , 61 Ill. 2d 583, 338 N.E.2d 168 (1975), the State asserts Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967) does not grant this court authority to reduce a sentence of imprisonment to a sentence of probation. We agree.

¶ 25 Our supreme court has twice stated we categorically do not have the authority to reduce a prison sentence to a sentence of probation. See Bolyard , 61 Ill. 2d at 588, 338 N.E.2d 168 (" Rule 615 does not grant a reviewing court the authority to reduce a sentence of imprisonment to a sentence of probation."); People ex rel. Ward v. Moran , 54 Ill. 2d 552, 556, 301 N.E.2d 300, 302 (1973) (" Supreme Court Rule 615 was not intended to grant a court of review the authority to reduce a penitentiary sentence to probation."). Similarly, we do not have authority to remand a cause with directions to grant probation. See People v. Rege , 64 Ill. 2d 473, 482, 1 Ill.Dec. 349, 356 N.E.2d 537, 541 (1976) ("[T]he appellate court erred in remanding the cause with directions to grant probation."). To the extent any prior decisions of this court hold to the contrary, they are not to be followed.

¶ 26 Even if we did have such authority, we would be disinclined to use it in this case. A reviewing court may not alter a defendant's sentence absent an abuse of discretion by the trial court ( People v. Alexander , 239 Ill. 2d 205, 212, 346 Ill.Dec. 458, 940 N.E.2d 1062, 1066 (2010) ), which we do not find here.

¶ 27 Defendant pleaded guilty to aggravated driving under the influence of alcohol under section 11-501(d)(1)(F) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11501(d)(1)(F) (West 2010) ). Section 11-501(d)(2)(G) of the Vehicle Code (Id. § 11-501(d)(2)(G) ) provides a violation of section 11-501(d)(1)(F)"is a Class 2 felony, for which the defendant, unless the court determines that extraordinary circumstances exist and require probation, shall be sentenced to: (i) a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person." The plain language of the statute creates the presumption a convicted defendant shall serve a term of imprisonment. Id. ; see also People v. Vasquez , 2012 IL App (2d) 101132, ¶ 64, 361 Ill.Dec. 383, 971 N.E.2d 38. However, a trial court may override this presumption when it determines, in its discretion, that "extraordinary circumstances" require probation. Id. The legislature intended for the "extraordinary circumstances" language to limit the discretion of a trial court to impose a sentence of probation. See People v. Winningham , 391 Ill. App. 3d 476, 483, 330 Ill.Dec. 650, 909 N.E.2d 363, 369 (2009).

¶ 28 Absent an abuse of discretion by the trial court, a sentence may not be altered upon review. People v. Price , 2011 IL App (4th) 100311, ¶ 36, 354 Ill.Dec. 598, 958 N.E.2d 341. An abuse of discretion will not be found unless the court's sentencing decision is "fanciful, arbitrary, or unreasonable to the degree that no reasonable person would agree with it." People v. Ramos , 353 Ill. App. 3d 133, 137, 288 Ill.Dec. 460, 817 N.E.2d 1110, 1115 (2004). Also, an abuse of discretion will be found "where the sentence is 'greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.' " Alexander , 239 Ill. 2d at 212, 346 Ill.Dec. 458, 940 N.E.2d 1062 (quoting People v. Stacey , 193 Ill. 2d 203, 210, 250 Ill.Dec. 4, 737 N.E.2d 626, 629 (2000) ). A trial court's sentencing decision is entitled to great deference, and we may not substitute our judgment for the trial court's merely because we might have weighed the sentencing factors differently. Id. at 212-13, 346 Ill.Dec. 458, 940 N.E.2d 1062. In the instant case, we cannot conclude the trial court abused its discretion.

¶ 29 We agree with the trial court defendant's medical condition did not rise to the level of "extraordinary circumstances" as envisioned by the legislature to justify a sentence of probation. Although the legislature did not define the precise boundaries of "extraordinary circumstances," it intended a trial court to exercise its discretion to override the presumption of incarceration only in limited circumstances. See Vasquez , 2012 IL App (2d) 101132, ¶ 64, 361 Ill.Dec. 383, 971 N.E.2d 38. In the present case, Dr. Jeong continued to provide treatment for defendant's blood disorder in cooperation with the Department's medical staff. Defendant received replacement therapy two days each month and was seen by Dr. Jeong in his office once each month. In April 2014, and again in January 2017, Dr. Jeong opined defendant's medical condition was stable.

¶ 30 As the trial court noted, defendant's access to nurses while residing in the infirmary provides even greater medical "supervision" than what defendant would be provided if given a "community[-]based sentence." We also agree with the court that a sentence of probation would deprecate the seriousness of the offense.

¶ 31 The trial court explicitly addressed the factors in mitigation and aggravation, and concluded a sentence of eight years in prison would have a deterrent effect. As the court stated, "this accident was 100 percent preventable." We find the trial court's sentence was not an abuse of discretion.

¶ 32 Defendant next argues her four-year sentence for failure to report an accident involving death was excessive in light of substantial mitigating factors, including her compliance with the terms of her bond conditions while awaiting sentencing, the absence of a significant criminal record, defendant's remorse, and the impact defendant's incarceration has on her two young children. Defendant requests this court reduce her sentence to a term of probation or vacate the sentence of imprisonment and remand the cause to the trial court with directions to grant defendant probation. As discussed above, we do not have the authority to reduce a prison sentence to a sentence of probation (see Bolyard , 61 Ill. 2d at 588, 338 N.E.2d 168 ; Moran , 54 Ill. 2d at 556, 301 N.E.2d 300 ), nor do we have the authority to remand a cause with directions to grant probation (see Rege , 64 Ill. 2d at 482, 1 Ill.Dec. 349, 356 N.E.2d 537 ). Moreover, we find no abuse of discretion.

¶ 33 The Illinois Constitution mandates "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. " 'In determining an appropriate sentence, a defendant's history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed.' " People v. Hestand , 362 Ill. App. 3d 272, 281, 297 Ill.Dec. 831, 838 N.E.2d 318, 326 (2005) (quoting People v. Hernandez , 319 Ill. App. 3d 520, 529, 253 Ill.Dec. 550, 745 N.E.2d 673, 681 (2001) ). "A reviewing court gives substantial deference to the trial court's sentencing decision because the trial judge, having observed the defendant and the proceedings, is in a much better position to consider factors such as the defendant's credibility, demeanor, moral character, mentality, environment, habits, and age." People v. Snyder , 2011 IL 111382, ¶ 36, 355 Ill.Dec. 242, 959 N.E.2d 656.

¶ 34 Section 11-401(a) of the Vehicle Code provides:

"The driver of any vehicle involved in a motor vehicle accident resulting in personal injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until the requirements of Section 11-403 have been fulfilled. Every such stop shall be made without obstructing traffic more than is necessary." 625 ILCS 5/11-401(a) (West 2012).

Violation of this section is a Class 4 felony, punishable by one to three years in prison. Id. § 11401(c); 730 ILCS 5/5-4.5-45(a) (West 2012).

¶ 35 Section 11-401(b) of the Vehicle Code provides:

"Any person who has failed to stop or to comply with the requirements of paragraph (a) shall, as soon as possible but in no case later than one-half hour after such motor vehicle accident, or, if hospitalized and incapacitated from reporting at any time during such period, as soon as possible but in no case later than one-half hour after being discharged from the hospital, report the place of the accident, the date, the approximate time, the driver's name and address, the registration number of the vehicle driven, and the names of all other occupants of such vehicle, at a police station or sheriff's office near the place where such accident occurred. No report made as required under this paragraph shall be used, directly or indirectly, as a basis for the prosecution of any violation of paragraph (a)." 625 ILCS 5/11-401(b) (West 2012).

Violation of this section is a Class 2 felony punishable by three to seven years in prison. 625 ILCS 5/11-401(d) (West 2010); 730 ILCS 5/5-4.5-35(a) (West 2012). But if, as here, the accident results in a death, the offense is enhanced to a Class 1 felony punishable by 4 to 15 years in prison. 625 ILCS 5/11-401(d) (West 2012); 730 ILCS 5/5-4.5-30(a) (West 2012). Failing to report the required information within one-half hour is a required element of the offense. People v. Moreno , 2015 IL App (2d) 130581, ¶ 23, 396 Ill.Dec. 588, 40 N.E.3d 241. As the trial court's sentence of four years in prison was within the relevant sentencing range, we will not disturb the sentence absent an abuse of discretion.

¶ 36 Defendant argues the trial court abused its discretion in sentencing her by failing to appropriately consider (1) defendant failed to report the accident not because she was attempting to escape the consequences of her actions but because she panicked and (2) she complied with the terms of her bond conditions while awaiting sentencing. Defendant argues "while the facts of the crime are certainly aggravating, much mitigation is present" and, therefore, the court abused its discretion when it sentenced defendant to prison rather than probation. Defendant notes the absence of a significant criminal record; the impact defendant's incarceration has on her two young children; and defendant's youth, remorse, and health.

¶ 37 We find the sentence imposed on defendant by the trial court was not "greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense." Stacey , 193 Ill. 2d at 210, 250 Ill.Dec. 4, 737 N.E.2d 626. The trial court indicated it had considered the presentence report, the evidence in mitigation, defendant's statement in allocution, and the statutory factors in mitigation and aggravation. The court found a sentence of probation would deprecate the serious nature of the offense and be inconsistent with the ends of justice. We hold the court did not abuse its discretion in sentencing defendant to four years in prison for her failure to report an accident involving death.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, we affirm the trial court's judgment. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 40 Affirmed.

Presiding Justice Harris and Justice DeArmond concurred in the judgment and opinion.