Illinois Official Reports

Appellate Court

City of Naperville v. Luciano, 2020 IL App (2d) 190847

Appellate Court 

Caption

THE CITY OF NAPERVILLE, Plaintiff-Appellee, v. DAVID M. 

LUCIANO, Defendant-Appellant.

District & No. Second District 

No. 2-19-0847

Filed December 10, 2020

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 19-TR-41988; 

the Hon. Kenton J. Skarin, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

David M. Luciano, of Naperville, appellant pro se.

Joseph Solon and Christopher Holland, of Naperville, for appellee.

Panel JUSTICE SCHOSTOK delivered the judgment of the court, with 

opinion.

Justices Hutchinson and Jorgensen concurred in the judgment and 

opinion.
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OPINION

¶ 1 On May 17, 2019, defendant, David M. Luciano, was ticketed for disobeying a police 

officer in violation of a City of Naperville (City) ordinance. Following a bench trial, he was 

found guilty of that offense. Defendant appeals, pro se, from his conviction, arguing that the 

trial court erred in denying his motions for substitution of judge and for a continuance of trial. 

We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 The ticket issued on May 17, 2019, summoned defendant to appear at the Du Page County 

Judicial Center, in courtroom 1001, on June 19, 2019, but did not name the judge before whom 

defendant would appear. Defendant appeared on that date before Judge Kenton J. Skarin. The 

record contains a pro se motion for substitution of judge pursuant to section 114-5(a) of the 

Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-5(a) (West 2018)) accompanied 

by a certificate of service indicating that it was mailed to Naperville’s city prosecutor on June 

27, 2019. The motion, which stated that Judge Skarin was “so prejudiced against [defendant] 

that he cannot receive a fair trial,” was electronically filed with the court on July 2, 2019. 

Defendant electronically filed the same motion again on July 8, 2019.

¶ 4 Judge Skarin heard and denied the motion, issuing a written order setting forth two 

independent reasons for the ruling. First, Judge Skarin ruled that the motion was untimely 

because it was not filed within 10 days of the case being placed on his trial call, as section 114-

5(a) requires. He concluded that, upon ticketing, defendant was charged with knowledge that 

the case had been assigned to Judge Skarin. Judge Skarin reasoned that he had been assigned 

to courtroom 1001 by administrative order and that the courtroom assignments and the 

administrative order itself were publicly available. Therefore, because the ticket issued to 

defendant summoned him to Judge Skarin’s courtroom, defendant was on notice that Judge 

Skarin would preside over his trial. Judge Skarin concluded that defendant’s motion, which 

was filed more than 10 days after the ticket was issued, was untimely.

¶ 5 Second, Judge Skarin reasoned that the motion, which was file-stamped July 2, 2019, 

would be untimely even if defendant’s first notice that Judge Skarin had been assigned to the 

case came when he appeared before Judge Skarin on June 19. Judge Skarin noted that 

defendant claimed to have mailed the motion within the 10-day period. Based on a faulty 

premise—that defendant had not filed a certificate of service—Judge Skarin concluded that 

the motion’s filing date did not relate back to the mailing date.

¶ 6 The case was set for trial on September 25, 2019. Defendant moved for a continuance and 

clarification of the order denying the motion for substitution of judge. Judge Skarin entered an 

order acknowledging his error regarding the certificate of service. However, he reaffirmed his 

ruling that the 10 days for filing the motion for substitution of judge began to run when 

defendant received the ticket. Judge Skarin denied defendant’s motion for a continuance. As 

noted, defendant was found guilty of disobeying a police officer, and this appeal followed.

¶ 7 II. ANALYSIS

¶ 8 Defendant argues that the 10-day period for filing a motion for substitution of judge should 

begin to run when a defendant files an appearance or appears in court the first time. The City 
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maintains that Judge Skarin correctly concluded that the 10-day period for filing a motion for 

substitution of judge started to run when defendant received a ticket summoning him to Judge 

Skarin’s courtroom.

¶ 9 Section 114-5(a) of the Code (id.) provides, in pertinent part, as follows:

“Within 10 days after a cause involving only one defendant has been placed on the trial 

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

judge on the ground that such judge is so prejudiced against him that he cannot receive 

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

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

¶ 10 In People v. McDuffee, 187 Ill. 2d 481, 490 (1999), our supreme court observed that “[i]n 

part because there is no uniform, statewide requirement that judicial assignments be formally 

executed, the appellate court has developed a test for calculating the 10-day period set forth in 

section 114-5(a) which does not depend upon the existence of an official assignment date.” 

The McDuffee court explained that “[f]or at least 30 years, the appellate court has held *** that 

a motion for substitution is timely filed if it is brought within 10 days of the date the defendant 

could be ‘charged with knowledge’ that the judge at issue had been assigned to his case.” Id.

The McDuffee court cited a number of those appellate court cases. Although they illustrate the 

operation of the “charged with knowledge” rule, the fact patterns in those cases, for the most 

part, bear little resemblance to the fact pattern here. However, one of the cases that McDuffee

cited—People v. Gunning, 108 Ill. App. 3d 429 (1982)—is instructive. In Gunning, the court 

held that, although the allegedly prejudiced judge was the traffic judge for the county and 

traffic cases were automatically assigned to him, “[d]efendant did not know, and could not 

know, *** that in fact [the judge in question] was assigned to his specific case” (id. at 432) 

until the entry of an order setting the case for trial. Relying on People v. Samples, 107 Ill. App. 

3d 523 (1982), the Gunning court reasoned as follows:

“In Samples the defendant appeared first before Judge Lewis; later he appeared before 

Judge Howerton, who entered up preliminary orders on December 30, 1980, including 

one for a pre-trial hearing on March 25, 1981, and for jury trial on April 1, 1981. 

Defendant filed a motion for substitution from Judge Lewis on February 25, 1981. At 

the hearing on that motion Judge Lewis stated that he was the only judge who heard 

criminal cases in Williamson County and therefore defendant was charged with 

knowledge when the trial allotment was made that he, Judge Lewis, would hear the 

case; therefore, the motion was too late.

The appellate court held that this ruling was error, saying:

‘We do not think that the prevailing practice in the circuit court of Williamson 

County described by Judge Lewis, in which a certain judge hears all the criminal 

cases unless he is ill or otherwise unable to do so, amounts to a placement of the 

cause on the trial call of a judge so as to commence the running of the 10-day period 

in which a defendant may move for automatic substitution of a judge for prejudice.’ 

[Citation.]

The court also stated that any such system would render a defendant’s right to 

substitution under section 114-5(a) ‘disappointingly hollow.’ ” Gunning, 108 Ill. App. 

3d at 431-32 (quoting Samples, 107 Ill. App. 3d at 527).
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¶ 11 In McDuffee, as in Gunning, the allegedly prejudiced judge was the only judge in the 

county hearing traffic cases. The State conceded that this fact did not put the defendant on 

notice that the judge in question would preside over the defendant’s trial. Because of that 

concession, the McDuffee court was not required to reach the issue. Nonetheless, the court’s 

citation of Gunning, if only as support for a point conceded by the State, appears to reflect tacit 

approval of Gunning’s reasoning. If, as in Gunning and Samples, a defendant is not charged 

with knowledge that his or her case has been assigned to the only judge in the county hearing 

traffic cases, we cannot see how a defendant could be charged with knowledge that his case 

will be heard by a judge who has been assigned to a particular courtroom.

¶ 12 The City cites this court’s decision in People v. Schneider, 375 Ill. App. 3d 734, 749 (2007), 

in support of its argument that, by virtue of the publicly available administrative order 

assigning Judge Skarin to courtroom 1001, defendant was charged with notice that the case 

was placed on Judge Skarin’s trial call when the ticket was issued to defendant summoning 

him to appear in that courtroom.

¶ 13 The City’s reliance on Schneider is misplaced. We note that in Schneider, it was the State 

rather than the defendant that moved for substitution of judge. However, like section 114-5(a), 

the applicable statute required the State’s motion to be filed within 10 days after the case was 

put on a judge’s trial call. The defendant argued on appeal that the State’s motion was untimely 

and that the trial court therefore erred by granting it. In rejecting the defendant’s argument, we 

stated that “we need not rely on the ‘charged with knowledge’ test to determine when 

defendant’s case had been placed on the trial call of a judge, because Winnebago County’s 

criminal division has a formal procedure for assigning judges.” Id. Under the procedure in 

Winnebago County, felony prosecutions were assigned to trial judges in rotation when an 

indictment or information was filed. The indictment in Schneider was filed on May 21, 2003, 

and the parties appeared before Judge Steven Vecchio on May 23, 2003, at which time they 

acknowledged that the case had been assigned to him. The State filed a motion for substitution 

of judge on May 27, 2003, and an amended motion for substitution of judge on May 30, 2003. 

We held that the motions were timely, reasoning as follows:

“Because the indictment against defendant was not filed until May 21, 2003, that is 

the earliest that the case could have been assigned to a judge for trial under the local 

court rules in effect when these events took place. [Citations.] The latest that the case 

could be considered assigned to a judge for trial is May 23, 2003, when the parties 

appeared before the court and agreed that Judge Vecchio had been assigned to the case. 

Under either scenario, the State’s substitution motion was timely. The State’s original 

substitution motion was filed on May 27, 2003, and its amended motion was filed on 

May 30, 2003. Both of these motions were therefore filed within 10 days after the cause 

could have been considered to be placed on the trial call of Judge Vecchio.” Id. at 750-

51.

¶ 14 In Schneider, we simply had no occasion to pinpoint when the State was charged with 

knowledge of Judge Vecchio’s assignment to the case. It was sufficient to observe that, 

regardless of when the State was charged with such knowledge—as of the filing of the 

indictment or as of the first appearance before the judge—the 10-day period could not have 

expired before the motion was filed. Our holding in Schneider—that the motion was timely in 

those circumstances—does not imply that it would have been untimely had it been filed later.
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¶ 15 The case law supports defendant’s position that he could not be charged with knowing that 

his case was assigned to Judge Skarin prior to his appearance before Judge Skarin on June 19, 

2019. Because defendant’s motion for substitution of judge was filed within 10 days of that 

appearance, Judge Skarin should have granted defendant’s motion for substitution of judge. 

We must therefore remand for a new trial before a different judge. In light of that conclusion, 

we need not consider whether the trial court erred by denying defendant’s motion for a 

continuance.

¶ 16 III. CONCLUSION

¶ 17 For the foregoing reasons, we reverse the judgment of the circuit court of Du Page County 

and remand for a new trial before a judge other than Judge Kenton J. Skarin.

¶ 18 Reversed and remanded.