{ "id": 173486, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THEODORE EUBANKS, Defendant-Appellant", "name_abbreviation": "People v. Eubanks", "decision_date": "1999-09-03", "docket_number": "No. 3-98-0144", "first_page": "39", "last_page": "43", "citations": [ { "type": "official", "cite": "307 Ill. App. 3d 39" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "677 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "175 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295830 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-2d/175/0435-01" ] }, { "cite": "618 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "parenthetical": "Gordon, P,J., concurring in part & dissenting in part" }, { "page": "837" }, { "page": "837" } ], "opinion_index": 0 }, { "cite": "249 Ill. App. 3d 340", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5411108 ], "weight": 3, "year": 1993, "pin_cites": [ { "parenthetical": "Gordon, P,J., concurring in part & dissenting in part" }, { "page": "367" }, { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0340-01" ] }, { "cite": "617 N.E.2d 1188", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "1191" } ], "opinion_index": 0 }, { "cite": "155 Ill. 2d 498", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4809899 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0498-01" ] }, { "cite": "543 N.E.2d 997", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "1003" } ], "opinion_index": 0 }, { "cite": "187 Ill. App. 3d 999", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2667087 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "1008-09" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0999-01" ] }, { "cite": "493 N.E.2d 1060", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "112 Ill. 2d 460", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5539033 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/112/0460-01" ] } ], "analysis": { "cardinality": 460, "char_count": 8563, "ocr_confidence": 0.841, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.006823563844841919 }, "sha256": "5aa15cba3a2269c8f5d9e1ce956d99cd780e9b1891dc1c2e593d808bd85847bb", "simhash": "1:0a3a3d963b9ea7c5", "word_count": 1458 }, "last_updated": "2023-07-14T21:00:41.446378+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THEODORE EUBANKS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOMER\ndelivered the opinion of the court:\nThe defendant, Theodore Eubanks, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1996)) and sentenced to six years in prison. On appeal, he relies on Supreme Court Rule 63(C)(1)(c) (155 Ill. 2d R. 63(C)(1)(c)) to support his contention that the trial judge erred in refusing to disqualify himself from the case based on his earlier prosecution of the defendant on similar charges. We hold that Rule 63(C)(1)(c) does not apply to judges who were previously employed as assistant State\u2019s Attorneys because those lawyers are not involved in the \u201cprivate practice of law.\u201d\nThe defendant was charged with unlawful possession of a controlled substance on October 17, 1997. His case was initially assigned to Judge Larry Vandersnick. On December 12, 1997, the defendant requested a change of judge as of right. His request was allowed, and the matter was transferred to Judge Charles Stengel.\nOn December 15, 1997, the defendant moved for substitution of Judge Stengel based on cause. He alleged that Judge Stengel, as the drug enforcement prosecutor for Rock Island County, had prosecuted him on a drug charge approximately three years earlier, obtaining the conviction of the defendant at that time. The defendant also alleged that Judge Stengel had campaigned for his seat on the bench by emphasizing his high conviction rate in drug cases.\nA hearing on the defendant\u2019s motion was held before Judge Ronald Taber. Judge Taber denied the motion.\nThe defendant\u2019s case proceeded to a jury trial where he was found guilty of the offense charged. He was thereafter sentenced to six years in prison.\nOn appeal, the defendant argues that Supreme Court Rule 63(C)(1)(c) required Judge Stengel to disqualify himself from presiding over the trial in this case due to the fact that Judge Stengel prosecuted the defendant in a prior case within seven years of the instant trial. As a result of the judge\u2019s failure to disqualify himself, the defendant maintains that he is entitled to a new trial.\nThe State argues initially that the defendant has waived his claim by failing to cite Supreme Court Rule 63(C)(1)(c) before the trial court. See People v. Dale, 112 Ill. 2d 460, 493 N.E.2d 1060 (1986). However, when the right of the defendant to an impartial trial and the duty to avoid the appearance of impropriety are implicated, the waiver rule may be relaxed. People v. Lopez, 187 Ill. App. 3d 999, 543 N.E.2d 997 (1989).\nSupreme Court Rule 63(C)(1) governs a judge\u2019s duty to disqualify himself from a case. 155 Ill. 2d R. 63(C)(1). The rule provides, inter alia, as follows:\n\u201c(1) A judge shall disqualify himself or herself in a proceeding in which the judge\u2019s impartiality might reasonably be questioned, including but not limited to instances where:\n(a) the judge has a personal bias or prejudice concerning a party or a party\u2019s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;\n(b) the judge served as a lawyer in the matter in controversy ***; [or]\n(c) the judge was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy *** or, for a period of seven years following the last date on which the judge represented any party to the controversy while the judge was an attorney engaged in the private practice of law ***.\u201d 155 Ill. 2d R. 63(C)(1).\nIn support of his argument that Rule 63(C)(1)(c) applies to former prosecutors, the defendant points out that in People v. Storms, 155 Ill. 2d 498, 617 N.E.2d 1188 (1993), the Illinois Supreme Court held that current Rule 63(C)(1) incorporates former Rule 67(c) (73 Ill. 2d R. 67(c)). Former Rule 67(c) provided that a judge \u201cshall not participate in any case in which he has previously acted as counsel.\u201d\nIn Storms, the defendant was charged with residential burglary. The trial judge, as an assistant State\u2019s Attorney, had participated in an unrelated burglary prosecution of the defendant eight years earlier. The supreme court determined that the judge was not disqualified under Rule 63(C)(1)(b), because he had not served as lawyer in the present controversy. Storms, 155 Ill. 2d at 506, 617 N.E.2d at 1191. The court did not address the issue of whether Rule 63(C)(1)(c) would have applied to the judge had the former prosecution taken place within seven years.\nThe defendant also points to the case of People v. Lopez, 187 Ill. App. 3d 999, 543 N.E.2d 997 (1989), wherein the court stated that Rule 63(C)(1)(c) incorporates former Rule 67(c) and \u201capplies to a judge who was actually involved in the prosecution or defense of a defendant\u2019s case.\u201d Lopez, 187 Ill. App. 3d at 1008-09, 543 N.E.2d at 1003. However, that case did not involve a judge whose alleged conflict arose as a result of prior service as a prosecutor, but, rather, the conflict arose as a result of his prior association with a private law firm that previously represented the defendant. However, to the extent that Lopez can be construed to hold that assistant State\u2019s Attorneys are involved in the private practice of law within the purview of Rule 63(C)(1)(c), we reject such analysis.\nConversely, we find the analysis of Rule 63(C)(1)(c) by Presiding Justice Gordon in Federal Deposit Insurance Corp. v. O\u2019Malley, 249 Ill. App. 3d 340, 618 N.E.2d 818 (1st Dist. 1993) (Gordon, P,J., concurring in part & dissenting in part), to be well reasoned and persuasive. Presiding Justice Gordon opined that \u201cthere is a very substantial difference between the nature of the representation provided with respect to attorneys in the private practice of law and those engaged in the public practice as employees of a governmental agency.\u201d O\u2019Malley, 249 Ill. App. 3d at 367, 618 N.E.2d at 837. In Presiding Justice Gordon\u2019s opinion, Supreme Court Rule 63(C)(1)(c) \u201capplies to the private sector only.\u201d O\u2019Malley, 249 Ill. App. 3d at 368, 618 N.E.2d at 837.\nThere are significant and substantial differences between practicing law as an assistant State\u2019s Attorney and practicing law in the private sector. A judge\u2019s impartiality might reasonably be questioned in the situation where the judge had a recent economic relationship with a law firm representing one of the parties to the pending litigation. It may also be reasonably questioned where one of the judge\u2019s former private clients is a party. These same concerns do not attach to a judge, however, who was previously employed by the government as a prosecuting attorney, even though the government may be a party to the pending proceeding. The Illinois Supreme Court was obviously cognizant of these differences when it fashioned Rule 63(C)(1)(c) to apply to attorneys \u201cin the private practice of law.\u201d 155 Ill. 2d R. 63(C)(1)(c).\nBased on our analysis, we conclude that the phrase \u201cin the private practice of law\u201d as it is used in Supreme Court Rule 63(C)(1)(c) does not apply to those attorneys employed by the State\u2019s Attorney\u2019s office. Thus, Judge Stengel\u2019s previous employment in the State\u2019s Attorney\u2019s office did not require that he be disqualified from the case. Further, although Judge Stengel had previously prosecuted the defendant, he was not involved in the present prosecution, and his recusal was not mandated by Rule 63(C)(1)(b). Storms, 155 Ill. 2d 498, 617 N.E.2d 1188. Moreover, the defendant does not claim that Judge Stengel erred in any of his rulings in this case or that he conducted the proceedings without impartiality. We therefore affirm the defendant\u2019s conviction and six-year prison sentence.\nNext, the defendant contends that he is entitled to $520 credit against his $500 drug assessment for 104 days spent in pretrial incarceration. The State agrees and it appears that the defendant is correct in his contention. See People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997). Therefore, we amend the mittimus to provide that the defendant\u2019s drug assessment has been satisfied. The judgment of the circuit court of Rock Island County is affirmed as modified.\nAffirmed as modified.\nHOLDRIDGE, P.J., and KOEHLER, J., concur.", "type": "majority", "author": "JUSTICE HOMER" } ], "attorneys": [ "Kenneth D. Brown, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Marshall E. Douglas, State\u2019s Attorney, of Rock Island (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THEODORE EUBANKS, Defendant-Appellant.\nThird District\nNo. 3\u201498\u20140144\nOpinion filed September 3, 1999.\nKenneth D. Brown, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nMarshall E. Douglas, State\u2019s Attorney, of Rock Island (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0039-01", "first_page_order": 57, "last_page_order": 61 }