December 2015 Illinois Criminal Case List is now available. Accelerate your legal learning with fast and convenient summaries of recent Illinois criminal court cases. Stay smart & informed in no time.
This criminal case list PDF download is clickable! It features a summary of all the December Illinois criminal cases for 2015. Click through to the actual court decision if you find the case of special interest.
Illinois Supreme Court
10 year AUUW conviction reversed because Aguilar struck down the statute facially notwithstanding the defendant’s felony history. People v. Burn
Defendant was charged under the exact section ruled unconstitutional by People v. Aguilar. However, defendant was sentenced as a class X offender because of his prior felony history. The appellate court sustained the conviction because it noted that Aguilar commented on allowing gun convictions against felons. The Illinois Supreme Court reversed. The Illinois Supreme Court noted that the the legislature is indeed free to create gun laws against felons and minors as they have done. However, this defendant was charged with a statute declared void. His criminal history doesn’t matter when they chose to charge him under an unconstitutional crime. Go to case.
Proportionate penalties challenge fails, sections of the AUUW statute criminalizing gun possession without a valid FOID remain constitutional. People v. Schweihs
Court reached this finding last month as well. Defendant was convicted of a class 4 AUUW for possessing a firearm without an FOID. Under the FOID Card Act, simple possession of a firearm without that card is merely a Class A misdemeanor. Illinois Supreme Court applied the identical elements test to conclude that there was no proportionate penalties violation. AUUW remains constitutional. The penalties of these two crimes are not identical. To prove possessing a firearm without an FOID under the FOID Card Act, the State need only prove possession of a firearm without the card. Such a violation can occur in the home without being a violation of AUUW. These two offenses are not identical, so the different penalties are justified. Go to case.
Procedure – Sufficiency of the Complaint
To what extent must the state identify the victim in the charging instrument? People v. Espinoza
As set forth in section 111-3 of the Code, a defendant has a fundamental right to be informed of the nature and cause of criminal accusations made against him. Because the requirement is founded upon the protection of the right of the accused against double jeopardy, it is a substantial requirement designed to safeguard a constitutional right and is not a mere technical rule. Although, neither section 111-3 nor the respective criminal code sections expressly state that the name of the victim is an element of the offense, it is well settled that “[w]here an indictment charges an offense either against persons or property, the name of the person or property injured, if known, must be stated, and the allegation must be proved as alleged.” Effective January 1, 2014, the legislature added section 111-3(a-5) to the statute. That section states: “(a–5) If the victim is alleged to have been subjected to an offense involving an illegal sexual act including, but not limited to, a sexual offense defined in Article 11 or Section 10–9 of the Criminal Code of 2012, the charge shall state the identity of the victim by name, initials, or description.” 725 ILCS 5/111-3(a-5). Here, defendant was charged with domestic battery, and second defendant was charged with endangering the life or health of a child. Both domestic battery and endangering the life or health of a child are crimes on which the impact is focused upon an individual. Accordingly, the identity of the victims was an essential allegation of the charging instruments. Consequently, the lower courts were correct that the State was required to include the names of the victims in each charging instrument in order to comply with section 111-3. When an indictment or information is challenged before trial, the indictment or information must strictly comply with the pleading requirements of section 111-3. Id. If the indictment or information does not strictly comply with the pleading requirements of section 111-3, the proper remedy is dismissal. Go to case
Appeal – Involuntary Confession
Defendant won his motion to suppress his confession of murdering two men, however, this is now reversed because defendant drastically changed his argument at the appellate level. People v. Hughes
At the trial level defendant’s trial counsel first presented two lines of argument: that the detectives cuffed defendant too uncomfortably for the ride down from Michigan, and that detectives questioned him on the drive down, without having informed him of his Miranda rights and without video recording. Defendant lost at the trial level where his motion was just a general motion. The appellate court reversed, finding defendant’s confession involuntary due to a confluence of issues: his age and educational level, being handcuffed on the ride from Michigan, his sleep deprivation and the length of interrogation, food deprivation, his prior substance abuse, and police deception and deceptive use of polygraph results in particular, defendant’s apparent use of cannabis while in police custody and shortly before his polygraph examination, while officers were out of the interrogation room. Problem was that these other facts about the interrogation were not elicited nor argued at the suppression hearing. The appellate court found out about them from the trial transcripts. Although, appellate attorneys are free to comb the record for relevant information that may help the appeal. It is also true that new factual theories on appeal deprive the formerly prevailing party of the opportunity to present evidence on that point. The Illinois Supreme Court said that despite defendant’s arguments that he is making the same claims, his reasons for suppression in the trial and appellate courts, while not factually hostile to one another, are almost wholly distinct from one another. Troubling for the court was the fact that defense counsel presented no evidence and produced no argument as to sleep deprivation, food deprivation, the defendant’s education, his age, his grief at the loss of his grandfather, his lack of exposure to the criminal justice system, or his abuse of drugs and alcohol. There was minimal cross-examination about police deception, but little substantial argument. Further, trial counsel was arguing the reliability of the confession not it’s voluntariness. Nothing in the record indicates the trial court was given the opportunity to consider the bulk of these arguments that defendant’s confession was involuntary. Likewise, the State was never given the opportunity to present evidence or argument that defendant’s confession was voluntary even as against these challenges. The State was never provided notice these arguments would attack the admissibility of the confession, such that the State never had an opportunity to rebut them. Reviewing court was slapped on the wrist because defendant failed to produce an adequate record for the appellate court to review voluntariness under these new theories. Thus, the appellate court ought not to have decided these factual issues anew. While defendant adequately preserved the broad issue of voluntariness of his confession, his arguments on appeal are almost entirely distinct from his arguments before the trial court. The drastic shift in factual theories deprived the State of the opportunity to present evidence on them. A court of review could not be confident in the adequacy of this record to address those arguments. Go to case.
Until there is a rule change IL Supreme Court says minors still cannot appeal an order of supervision. In re Michael D.
Minor was trying to appeal his supervision ordered entered in juvenile court. He was found guilty of theft by deception for selling a stolen cell phone. However, the Illinois Supreme Court noted that although recent legislative changes allow supervision orders to be entered in juvenile cases, this change did not make such orders appealable under any supreme court rule. A supervision order is not a final judgment. Nor is this the kind of interlocutory order that is appealable. It might be possible to address this question by way of a new rule, but it would be better for this to take place through the usual rulemaking process, with public input. Go to case.
Postconviction Petition – Proof of Service
Defendant’s not allowed anymore to claim error for their own defective service, in an effort to gain reversal of a circuit court’s sua sponte dismissal of the petition. People v. Carter
Illinois Supreme Court said that merely stating that the record is insufficient to demonstrate the service deficiency which this offender must establish in order to advance his argument. To support a claim of error, an appellant has the burden to present a sufficiently complete record such that a court of review may determine whether there was the error claimed by the appellant. Without an adequate record preserving a claimed error, a court of review must presume that the circuit court’s order conforms to the law. In his proof of service, all that was established was where Carter mailed his petition—the institutional mail at the facility in which he was confined—and the medium through which it was to be transmitted—the U .S. Postal Service. The appellate court’s assumption that the language of the proof of service affirmatively established transmittal by regular mail, and thus deficient service, is unwarranted on this record. Go to case.
Postconviction Petition – As Applied Challenges
Defendant not allowed to make a Miller type challenge for the first time on a successive civil petition when he was making an as applied challenge. People v. Thompson
Convicted of murder at 19. Defendant lost all his appeals, postconviction, and habeas corpus proceedings. In 2012 his last 2-1401 was dismissed. Then in 2012, the United States Supreme Court (Miller v. Alabama) held that, where an offender was a juvenile, it was unconstitutional to subject him to a mandatory life sentence without parole. Defendant relied exclusively on this then-recent decision to argue for the first time in his appeal from the dismissal of his petition that his mandatory life sentence was facially void and could be challenged at any time as unconstitutional. Thus, abandoning all his other issues. It has been held that there is an exception to the this two-year rule prohibiting such late petitions as this one. However, the offender here made an as applied challenge (because he was not a minor as recognized under Miller) which is not treated the same way as an across the board challenge to a statute which honors the exception to the 2 year procedural hurdle. The concepts of facial and as-applied invalidity are not interchangeable. The issues dealing with the mentality of persons in the age group to which he belonged when he committed these offenses are matters appropriate for development in a trial court, rather than for appraisal by a reviewing court which is being presented with such issues for the first time. An offender may not raise his as-applied constitutional challenge to his mandatory natural life sentence for the first time on appeal from the circuit court’s dismissal of his petition seeking relief from a final judgment under section 2-1401. However, The Post-Conviction Hearing Act is expressly designed to resolve constitutional issues, including those raised in a successive petition, and section 2-1401 permits a challenge to a final judgment if certain procedural and statutory requirements are satisfied. See also People v. Gray and VOID Sentence Rule case (People v. Castleberry) from last month. Go to case.
DUI – Hospital Blood
Trial court’s suppression of hospital drug test is reversed because 625 ILCS 5/11-501.4 trumps hospital policy that the results should not be used for legal purposes. People v. Wuckert
This was a one car accident. Police find a drug pipe in the car and it smells like cannabis. Trial judge suppressed the state blood because there was no probable cause for the arrest. However, the hospital told defendant that their lab tests could only be used for medical reasons and not for any legal purposes. Relying, in part, on this hospital policy the trial judge suppressed the hospital drug tests as well. However, the reviewing court said that 11-501.4 trumps the hospital policy. The fact that the trial court was perturbed that defendant consented to the test under a misimpression created by the hospital personnel, however unfortunate, is not a legally sound basis to suppress the test results. Here, because the test results here were procured by a nurse who was not acting as a State agent, neither the test nor the hospital’s disclosure of the results to the police, as the statute required, violated defendant’s rights. Go to case.
DUI – Discovery Violation
People v. Kladis supports some kind of discovery sanction in this DUI case where police failed to turnover booking room video. People v. Tsiamas
After a traffic stop, Defendant gets arrested for possession of cannabis. At the station they say he failed the fields. The events in the booking room were recorded on video maintained by the police department. The same day defendant filed his rescission petition, he also filed a motion for pretrial discovery under Illinois Supreme Court Rule 214 and a notice to produce at trial under Illinois Supreme Court Rule 237. After 30 days, the police department informed the court, that it “ha[d] no recordings” responsive to the subpoena. Thereafter, defendant made an oral motion for sanctions against the State. Here, the trial court incorrectly framed the controlling issue: The question was not whether Kladis specifically had yet been “extended to the booking room.” Rather, the question was whether, in the trial court’s discretion, a properly requested recording of field sobriety testing or the warning to motorists—regardless of where either was performed— was discoverable in a rescission proceeding. The answer is yes, and it would have been an abuse of discretion had the trial court exercised its discretion and found otherwise. The FSTs were done in the booking room, accordingly, because the booking room recording was discoverable, a subpoena to obtain the recording was not required. Once defendant filed his motions, the State was officially on notice to take action to preserve the recording for its eventual production either before trial or at trial. The State also suggested that it was defendant’s burden to determine when the recording was destroyed. This notion was handsomely struck down. For one thing, the State simply ignored the request for discovery. It is well settled that when counsel presents his adversary with a Rule 237 notice to produce, absent being served with objections, “he has the right to assume that his opponent has complied.” The court held that if the police record a driver’s field sobriety tests or the officer’s recitation of the warning to motorists, and the driver timely requests that recording in discovery in his or her rescission case, it should be provided as expeditiously as possible.Trial court was reversed, and the case remanded so the trial judge can craft an appropriate remedy. The court need not automatically impose the sanction used in Kladis, viz., barring the arresting officer’s testimony. Rather, the court is free to exercise its discretion and craft a sanction befitting the situation at hand. Go to case.
DUI – Search & Seizure
Trial judge granting of motion to quash for an improper traffic stop is reversed; driving too closely to a cop not a good idea. People v. Maberry
Driver was following so close to a squad that it “alarmed” the officer. Defendant followed the officer at an interval of a car-length or less for the distance of a football field while at a speed of 30 to 35 miles per hour. Yea, she gets pulled over. 625 ILCS 5/11-710(a) does not describe a standard distance to follow a car. It only says that “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” The trial court then said that in light of all the testimony it could not say that “the manner in which she drove her vehicle that night was not reasonable and prudent, that she did not have due regard for the speed of both vehicles and the traffic upon the roadway as well as condition of the highway.” The court then granted defendant’s motion to suppress evidence. However, whether a vehicle is following another vehicle too closely is a proper subject of lay opinion testimony under Illinois Rule of Evidence 701. The officer stopped defendant’s vehicle based on his observation and opinion that defendant was following him at an unsafe distance. The reviewing court felt that the officer’s observation justified an investigatory traffic stop. The trial court was mistaken in believing that the State was required to show some “other indication” of issues with defendant’s driving ability in addition to following too closely in violation of section 11-710 of the Code. 625 ILCS 5/11-710(a). Go to case.
DUI – Watercraft
The plain language of section 11-501(a) of the Vehicle Code makes clear that, contrary to defendant’s argument, it does not govern the operation of a watercraft, so defendant’s conviction is not void, and the the dismissal of his postconviction petition is affirmed. People v. McGuire
On appeal, rather than contending that his postconviction petition was dismissed in error, defendant contends that his conviction is void and must be reversed. Specifically, defendant maintains that section 5-16(A)(1) of the Boat Act was impliedly repealed by the more recently amended section 11-501 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501), which “speak to the operation of a watercraft” and “irreconcilably conflicts” with the relevant provisions of the Boat Act. However, the court must presume that the legislature would not enact a conflicting law without expressly repealing an existing law. It is the reviewing court’s duty to interpret the statutes to give effect to both. Given that the plain language of section 11-501(a) of the Vehicle Code makes clear that watercraft do not fall under the definition of vehicle and thus that it does not govern the operation of watercraft, the reference to “watercraft accident” in section 11-501(d)(1)(F) does not establish a conflict with section 5-16(A)(5) of the Boat Act such that both cannot stand. Go to case.
Search & Seizure – Phone Search
Second degree murder conviction is reversed because police get into Defendant’s phone to see some text messages without a warrant. People v. Butler
Defendant was involved in a shooting. Officer sees him being dropped off at the hospital after he is shot in the buttock. The officer, without, permission takes the Defendant’s phone from hospital staff and sees a text sent by Defendant saying ” I need a pipe cuzz, asap”. Police know this to be a request for a gun. Police do get a warrant eventually, but Riley v. California, 134 S. Ct. 2473 (2014), says police needed a warrant in the first place. The court did not accept the community caretaking excuse the State came up with. Aimlessly scrolling through a list of unknown names and/or calling each and every contact in defendant’s cell phone is neither reasonable nor serves the purpose of protecting defendant or the general public. Text message is definitely out. However, case was also remanded for an attenuation hearing to determine whether his statement to police was the fruit of the unlawful search of his cell phone. It is uncontested that defendant gave his recorded statement after having been confronted with the content of the text message that was recovered. Accordingly, it must be determined whether this confession was obtained by exploitation of the illegal search of his cell phone, or if it was obtained by means sufficiently distinguishable so as to be purged of the primary taint of illegality. Trial court must consider the following four factors are considered in determining whether a confession was a product of an illegal search or arrest, or was purged of the initial taint: “(1) the temporal proximity between the [illegal search] or arrest and the confession; (2) the presence of intervening circumstances; (3) the purpose and flagrancy of the police misconduct; and (4) whether Miranda warnings were given.” Go to case.
Search & Seizure – Search Incident to Arrest
Investigative hold not enough to hold this defendant, kilo of cocaine is suppressed. People v. Jones
Defendant stopped for making a right hand turn at a light without stopping. No warrants, but he has an “investigative hold” for a homicide. What is an investigative hold? It’s just the possibility that other officers might possess facts sufficient to support probable cause to actually arrest defendant. Detained so cop could look into it. Defendant is moved to the back seat of the squad. More cops arrive and they look inside the car around inside the car. Through the window of the back passenger door an officer sees a black square object wrapped in cellophane and black tape in the back seat. Without permission, cop’s go into the care and discover a kilo of cocaine. A bunch of cash is found in his front pocket. Notably, the cop escorted Defendant to the backseat of the police car by holding onto his back belt area and told Jones he was being detained. Reviewing court and trial court both said this was an arrest based solely on the investigative alert. There is a case on this point. People v. Hyland, 2012 IL App (1st) 110966, supplies the dispositive rule of law in this case.This was no Terry v. Ohio, 392 U.S. 1, 21-22 (1968), situation either. There a limited investigative detentions permissible only on a reasonable suspicion based on specific and articulable facts that detained individual committed or is currently or about to commit, a crime. Here there was no evidence presented that established a basis for an investigative detention. Plain view doesn’t help the police either because it requires that the officers have a lawful right of access to the object. Go to case.
Evidence – Confrontation (Crawford v. Washington)
Defendant was not denied his right to confrontation when the victim testified she did not remember the incident. People v. Burnett
In this trial for violation of order of protection the trial court found the victim unavailable pursuant to. 725 ILCS 5/115-10.2a(a). The statute also only applies if no other hearsay exception applies. Crawford v. Washington, 541 U.S. 36, 68 (2004) says a testimonial out-of-court statement is admissible under the sixth amendment only if the witness is available for cross-examination at trial or the defendant had a prior opportunity to cross. Here, the statement to the police was properly admitted only if the witness can be said to be both unavailable for purposes of this statutory hearsay exception, but available for purposes of the sixth amendment right to confrontation. The court then found that the victim was, in fact, unavailable due both “to a lack of memory” (725 ILCS 5/115-10.2a(c)(3)) and a refusal “to testify concerning the subject matter” of her statement “despite an order of the court to do so.” 725 ILCS 5/115-10.2a(2). Since defendant was convicted solely of harassment that violated a protective order, the question is whether the victim was “present at trial to defend or explain” her prior accusations of harassment. This was not a case where the victim got up there and said noting. In fact, she did answer questions at trial about Defendant “telephoning,” “following” her and being kept “under surveillance.” She also said they had been in a relationship for five years; that she had four children; that defendant was the biological father of her two youngest sons; and that he also acted as a father to her other two children. She acknowledged that she took out the OP, and said he texted her the day of the arrest. What we have here is that the statutory version of unavailability requires a persistent refusal to testify about some things even though the witness has testified about other things. This victim continued to assert a refusal to testify to some questions, thus satisfying the requirements of this particular hearsay exception. Yet , she still answered both preliminary questions, as well as a number of questions about the offense of conviction described in her statement, thereby making her available under Crawford. Thus, the reviewing court said this particular statutory exception, as applied to defendant, did not violate his sixth amendment right to confrontation. Go to case.
Harmless error to allow the State to argue consciousness of guilt when defendant refused voluntary DNA testing. People v. Ealy
There was overwhelming evidence that Defendant murdered his Burger King manager and robbed the safe. Palmprints and fingerprints from 22 current and former employees, including defendant were collected. But when asked for a DNA sample, defendant adamantly refused while the 21 other employees complied. Eventually, the got a warrant. Nonetheless, the state argued to the jury that “… if the defendant is either smart enough or lucky enough to not leave his DNA behind at a crime scene, then according to them the defendant gets found not guilty…the law does not reward criminals for doing their jobs too well.” A compelled DNA extraction undeniably constitutes a search under the fourth amendment to the federal constitution (U.S. Const., amend. IV) and the search-and-seizure provision of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) and, as such, generally requires a warrant due to the inherent interest an individual possesses in his privacy and bodily integrity. At the time of his refusal, defendant had no legal obligation to provide his DNA federal courts have long held that the admission of evidence that a defendant has exercised his rights is unduly prejudicial and deprives him of a fair trial because it permits the jury to infer consciousness of guilt from the defendant’s exercise of his rights. The federal circuit courts have held that it is improper for the government to elicit testimony that a defendant refused to consent to a search unsupported by a warrant or probable cause. The admission of defendant’s refusal to consent to DNA testing was an abuse of discretion because it permitted the jury to infer consciousness of guilt from defendant’s exercise of his rights. Note also there is language in here saying Defendants are no longer allowed to challenge convictions based on inconsistent verdicts. Go to case.
Evidence – Subpoena
No abuse of discretion here where trial judge denied defendant’s subpoena of the victim’s bank’s records. People v. Abrams
Defendant stole over a $1 million dollar from the victim. Defendant wanted to subpoena the victim’s records to show that he was a “sophisticated purchaser of properties” who knew “where every dime [was] going.” To warrant the use of a pretrial subpoena, a defendant must show: (1) the requested documents are (a) evidentiary and relevant; and (b) not otherwise procurable reasonably in advance of trial by exercise of due diligence; (2) he or she cannot properly prepare for trial without production and inspection of the documents in advance of trial and failure to obtain an inspection may tend to unreasonably delay trial; and (3) the application was made in good faith, and was not a general “fishing expedition.” However, the loan applications on the victim’s residence were irrelevant to proving theft of business income. The excluded documents were both irrelevant and cumulative. Also, this defendant’s testimony didn’t help him at sentencing where he got 12 years (max was 15) even though he was a first offender but appeared to completely perjure himself and felt he was entitled to all the money he stole. Go to case.
Sentencing – Stayed Sentence
Ok for judge to sentence to defendant to IDOC then stay that sentence to see if he gets treatment. People v. Strickland
In this drug case, the sentence was 6 years IDOC but stayed subject to a defense motion to reconsider so that counsel could get his client into treatment. When he missed some NA and AA meetings the judge revoked his bond and signed the IDOC mittimus. Defendant did not point to any authority to support the proposition that it was improper for the judge to suspend the mittimus after sentencing the defendant. The trial court was simply enforcing its judgment, and retained jurisdiction to do so. Go to case.
Sentencing – One Act One Crime
One act one crime principles demand vacating some robbery, aggravated battery and aggravated discharge of a firearm convictions. People v. Scott
Under the one-act, one-crime doctrine, multiple convictions may not spring from the same physical act. Here, Defendant was convicted of two counts of armed robbery for taking one pizza from two pizza delivery persons. But under well-settled Illinois law, multiple armed robbery convictions cannot lie when there is a single taking of property, even when multiple individuals are present and threatened. Defendant was also convicted of armed robbery (personally discharging a firearm), aggravated battery of a firearm, and aggravated discharge of a firearm for firing his gun once at one of the pizza people, striking her in the leg. Defendant then took the pizza from here before fleeing. The three convictions as cannot properly exist where they were all based on a single act of firing at her. Under the one-act, one-crime rule, a sentence should be imposed on the more serious offense and the convictions on the less serious offenses should be vacated. Go to case.
Sentencing – Mandatory X
This is going back for resentencing because mandatory X sentencing requires that Defendant be 21 at the time of the offense not at the time of the conviction. People v. Brown
One day before his 21st birthday Defendant sold some heroine and got busted. He was sentenced to 6 years pursuant to 730 ILCS 5/5-4.5-25(a). A full history of cases going each way on this issue combined with a legislature that appeared to be unaware of any of it means this statute is ambiguous regarding at what point the defendant’s age should be considered–commission, charging or conviction–and this requires an interpretation in favor of the defendant in accordance with the rule of lenity. Go to case.
Sentencing – Consecutive
Defendant was properly placed on consecutive sentences when he committed a new offense while out on an appeal bond for another case. People v. Maxey
Defendant won a motion to quash and then was placed on an appeal bond while the State appealed the ruling. Then he committed a new offense and subsequently lost the appeal on the earlier case. Defendant plead guilty to the first case before he was sentenced on the new later offense. When he was sentenced on the new case it ran consecutively to the earlier offense. See 730 ILCS 5/5-8-4(d)(8). Defendant on appeal tried to get his appeal bond revoked arguing that he should have been released unconditionally all along without any bond. However, Rule 604(c) required that defendant file a motion to revoke bond before his conviction entered. He did not do that. Go to case.
Sentencing – Reasonable Sentence
105 year sentence well within the guidelines and not excessive. People v. Decatur
Defendant shot a man who was on the ground after a bar fight. He then shot at others involved. He was convicted of murder and attempted murder. Defendant argued his 19 year old brain was not fully developed. The court then sentenced Decatur to 40 years of imprisonment on the count of first-degree murder, with a mandatory add-on of 25 years for personally discharging the gun, and two concurrent terms of 20 years each on two attempted murder counts, with corresponding 20-year firearm enhancements, to run consecutively to the sentence for first-degree murder. In total, he was sentenced to 105 years’ imprisonment. Importantly, it is the seriousness of the crime–rather than the presence of mitigating factors–that is the most important factor in determining an appropriate sentence. A minimum sentence is not necessarily warranted merely due to the presence of mitigating factors. Defendant was sentenced within the middle of both sentencing ranges for murder and attempted murder. No abuse of discretion given the seriousness of the offense. Notably, trial court is not required by law to consider a defendant’s age in making a sentencing decision. See 730 ILCS 5/5-5-3.1. The reviewing court acknowledged that this was a de facto life sentence. Yes, in Illinois for those under 18 the judge may take age into account but defendant did not qualify. See 730 ILCS 5/5-4.5-105 (when sentencing defendant who was under 18 at time of commission of crime, court may, in certain circumstances, decline to impose sentencing enhancement based on firearm possession or discharge) See, e.g., Pub. Act 99-258, § 15 (eff. Jan. 1, 2016). Call for legislature to continue to work on sentencing reform. Go to case.
Sentencing – Life Sentence
19 year old step brother sentenced to life for predators against 3 half siblings, convictions stand but life sentence reversed. People v. Wilson
Defendant was convicted of 5 counts of predatory against three kids. In this case, defendant’s sentence of natural life was imposed according to section 12-14.1(b)(1.2) of the Criminal Code (720 ILCS 5/12-14.1(b)(1.2). This section leaves the trial court with no discretion and mandates sentences of life without parole for individuals convicted of predatory criminal sexual assault of a child committed against two or more persons. These sentences were imposed on all counts, even on those counts committed when defendant was a juvenile. This is prohibited by Graham v. Florida, 560 U.S. 48, 82 (2010) (cruel and unusual to condemn a minor to life for non murder offense). The crimes were committed six months before defendant’s eighteenth birthday. The other two were against the same victim. Graham necessitates a reversal of those sentences. Additionally, the prosecutor did not express personal beliefs nor act as a human lie detector when he pointed to defendant’s own testimony of shock and asked the jury to look at defendant’s actions, which it could see. The prosecutor did not tell the jury that a person who wipes their hands on their pants is guilty. The prosecutor did not weigh the credibility of the witnesses, which is in the jury’s exclusive province, but only asked the jury to do so by what it observed. Different story when cops try to testify about this kind of stuff. Also other crimes evidence under 725 ILCS 5/115-7.3(c) need not have occurred before the charged offense. Go to case
The trial court’s dismissal of the postconviction petition was affirmed but Defendant’s the mandatory sentence of natural life without parole was vacated and a new sentencing hearing ordered. People v. House
Defendant was convicted of two gang killings in a dispute over a drug corner. Defendant has always maintained the confession was beat and intimidated out of him. In his postconviction petition he failed to provide “reliable evidence.” The affidavit is neither exculpatory scientific evidence, a trustworthy eyewitness account, nor critical physical evidence. Rather, the affidavit contains conclusory statements that fail to exonerate defendant. The witness offered no explanation regarding why she changed her statement eight years after the crimes were committed. She simply stated without any explanation that she did not see defendant kidnap or conspire to kidnap the victims. Her trial testimony never indicated that she was present for any planning or conspiracy to commit the crimes, and her statement in the affidavit on this point fails to offer any proof of actual innocence. Further, the affidavit offers no facts to support her change in testimony. While the Defendant gathered a bunch of documents outlining other incidents of abuse by this detective; his own allegations in this case at worse were that he was slapped in the forehead once. The reviewing court noted defendant was not a juvenile at the time of the offense, still his young age of 19 is relevant in consideration under the circumstances of this case. As in Miller, defendant’s sentence involved the convergence of the accountability statute and the mandatory natural life sentence. The offender in Miller was 15, never handled a firearm, and had less than a minute to consider the implications of his participation. In the present case, the State’s evidence at trial established that defendant was not present at the scene of the murder, but merely acted as a lookout near the railroad tracks. There was no evidence that defendant helped to plan the commission, but instead took orders from higher ranking UVL members. While defendant had a greater involvement in the commission of the offenses than the defendant in Miller, after considering the evidence and defendant’s relevant culpability, we question the propriety of mandatory natural life for a 19 year old defendant convicted under a theory of accountability. Accordingly, the reviewing court held that defendant’s sentence violates the proportionate penalties clause of the constitution as applied to him. Defendant’s sentence of natural life was vacated and the case remanded for a new sentencing hearing. The court said given defendant’s age, his family background, his actions as a lookout as opposed to being the actual shooter, and lack of any prior violent convictions, defendant’s mandatory sentence of natural life shocks the moral sense of the community. The statute in its current form takes away the trial court’s discretion and ability to consider any mitigating factors in this case. Go to case.
Sentencing – Fines
In the spirit of People v Williams, 2013 IL App (4th) 120313, this Third District case also created a “fines and costs” chart for us with footnotes on updated case law and other developments. People v. Johnson
Defendant sentenced to 30 years for burglary and ordered to “pay the costs of prosecution herein.” The clerk then imposed all the fines and fees on their own totalling over $400. This court vacated the monetary assessments imposed by the clerk in the amount of $409.02 and remanded the matter to the trial court to review and correct the monetary component of defendant’s sentence and allow the $5-per-day presentence incarceration credit towards the eligible fines. Go to case.
Sufficiency of the Evidence – Drugs
Gun and drug conviction reversed because State did not establish exclusive control over the area where contraband was discovered. People v. Moore
This was a search warrant case. Defendant jumps out a bathroom window. Bullets are found in a desk or a drawer upstairs in the living room and .22-caliber ammunition and suspected cocaine pulled out of the basement rafters. Defendant is not seen handling any of the contraband or discard anything while emerging from the window. Three other people were in the house at the time. Here, because defendant was not seen in the presence of the recovered contraband, the State was required to show that defendant constructively possessed it. To establish constructive possession, the State must prove defendant had knowledge of the contraband and exercised immediate and exclusive control over the area where the contraband was found. The State relied on the mail and clothing recovered from the bedroom as proof that defendant lived at the house and thus had control of the area for purposes of constructive possession. The State further argued the knowledge element was met by defendant’s flight from the house as the officers entered. The problem here is that the mail and clothing recovered from the bedroom, and defendant’s jump from the window were no where near the area from where the contraband was recovered. Ammunition was recovered from inside a desk or cabinet drawer in the living room and ammunition and drugs were found in a relatively hidden area in the basement rafters. The fact of flight is to be considered “in connection with all other evidence in a case.” Even where a defendant is first observed fleeing from a location where narcotics is found, that fact is not sufficient to prove constructive possession, absent any further indicia of knowledge or control. No other evidence connected defendant to the residence. Go to case.
Sufficiency of the Evidence – Guns
State fails to prove the minor possessed the gun so all his gun adjudications are reversed and JIDOC sentence vacated. In re Nasie M.
State filed a petition for adjudication of wardship alleging that the minor, who was 17 years old, shot himself in the foot with a firearm and was delinquent based on the following offenses: reckless discharge of a firearm, AAUW, or unlawful possession of a firearm. Defendant had two bullet wounds on the bottom of his foot and one on the top. Neither side presented any medical testimony regarding which were exit wounds. The cops said the kid admitted to shooting himself. The kid said he was shot from behind while being chased by two men. He admitted to having a gun on him but denied it was the weapon that injured him. The State presented no eyewitness testimony that the minor possessed a gun when shot. The State did not present any forensic evidence connecting the minor to the shell casing recovered in the vacant lot or the shell casing to the gun the police recovered from his girlfriend’s apartment. According to the testimony presented by the State, after getting shot in the foot, which the State concedes was a painful injury, the kid ran or hopped to his girlfriend’s apartment to get rid of the gun and then returned to the vacant lot to speak to the police, all within the span of a few minutes, which appears questionable. Even the police acknowledged that a revolver, like the one the police recovered at the girlfriend’s apartment, would not have expelled a shell casing, thus severing any connection between the shell casing found in the parking lot and the gun found at the apartment. Furthermore, the lack of forensic evidence fails to establish that the gun recovered even had been fired that day. The sole office testified the recovered revolver had a live .38 caliber round and did not contain any spent cartridges. Moreover, the State failed to perform any forensic testing on the minor’s clothes, shoes, or hands to check for gunshot residue. Thus, no physical evidence shows that Nasie had fired a gun. Moreover, one of the State’s witnesses, testified that her partner spoke with the kid at the scene of the shooting, but the State failed to present this officer as a witness or any evidence as to what was said at that time. Certainly, testimony about what he saw and what the minor said immediately after the shooting could shed light on what actually occurred. An appellate court may reverse a conviction “where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” Here the appellate court said the evidence, or lack of evidence, was so unsatisfactory that it created a reasonable doubt as to guilt. Go to case.
Sufficiency of the Evidence – Armed Robbery
Defendants rob a store with what appears to be a gun on the videotape. The victim admits he only “saw” the gun on the tape and not necessarily during the robbery. Defendant says in his confession it was a bb gun. No gun was ever recovered. There are three ways for the State to prove that a gun constitutes a “dangerous weapon”. They are by proving that: (1) the gun was operable and loaded; (2) the gun was actually used during the offense as a club or bludgeon; or (3) that due to the gun’s size and weight, it was capable of being used as a club or bludgeon. Here, the victim was not certain that he saw a weapon until he viewed the surveillance video, and did not testify about the weapon’s weight or composition (metallic). The trial court ignored Defendant’s statement that the weapon was a BB gun that broke when it was dropped. Without any evidence of the gun’s weight or composition it’s hard to infer that the gun was heavy or metal object and that it could be used as a bludgeon. The trial court erroneously based its ultimate finding on the subjective feelings of the victim, who believed he saw a gun. Go to case.
Sufficiency of the Evidence – Felony Murder
Accountability plus felony murder principles equal murder; here Defendant is the getaway driver in a residential burglary that results in a fatal car accident. People v. Jones
Defendant is in an SUV fleeing a residential burglary. The SUV collides with another car killing that driver. 3 people flee from the SUV. Defendant’s DNA is recovered from blood found on the deployed air bag. The State proposed a non pattern instruction that “a person may be held responsible for a death that occurs during an escape following the commission of residential burglary.” A person commits first-degree murder if, in performing the acts that cause a death, he or she attempts or commits a forcible felony. 720 ILCS 5/9-1(a)(3). A killing that occurs during escape from that forcible felony falls within the scope of the felony-murder rule. Residential burglary qualifies as a “forcible felony” under the Criminal Code of 1961. The law holds the getaway driver accountable for the crime. Here, a reasonable trier of fact could infer that Defendant’s face hit the airbag when it deployed, and he suffered an injury during the accident as he was driving away from the burglary. State never had to prove he actually went into the home to sustain a felony murder convictions. Go to case.
Sufficiency of the Evidence – Armed Habitual Criminal & Forcible Felony
Domestic battery is not a forcible felony that can support a conviction for armed habitual criminal. People v. White
Defendant was convicted of being an armed habitual criminal and committing armed violence when he was stopped, dropped a gun, and had drugs on his person. Because domestic battery is not expressly enumerated in subsection (2) or (3) of the armed habitual criminal statute, it must constitute a forcible felony under subsection (1) in order to be a qualifying felony under the statute. See 720 ILCS 5/24-1.7(a). Section 2-8 of the Criminal Code of 2012 provides that a ” ‘[f]orcible felony’ means…any other felony which involves the use or threat of physical force or violence against any individual.” Here, the record must show that the specific circumstances of defendant’s domestic battery conviction fall under the residual clause or domestic battery must inherently be a forcible felony under the residual clause. The State presented no evidence at trial concerning the circumstances surrounding defendant’s prior conviction. On first blush, a domestic battery where bodily harm has been causes appears to be a forcible felony. However, in defining forcible felonies, the legislature has specified aggravated battery based on great bodily harm, permanent disability or disfigurement, to the exclusion of aggravated battery where mere “bodily harm” has occurred. It cannot be said that defendant’s domestic battery conviction constituted a forcible felony. In turn, that conviction did not satisfy an element of the armed habitual criminal offense and defendant’s conviction for that offense must be vacated. Additionally, the ambiguity in the armed violence statutes must be construed in defendant’s favor. The statute, then, does not authorize multiple armed violence convictions for multiple, simultaneous, underlying felonies. Accordingly, one of his armed violence convictions must be vacated. Go to case.
Sufficiency of the Evidence – Forcible Felony
Defendant failed to establish he committed the shooting in self defense of another to prevent a forcible felony. People v. Harmon
Defendant shot and killed an opposing gang member after an altercation. Defendant was the only one with a gun. He argued on appeal that he was acting in self defense to prevent a forcible felony against his friend who was punched by the victim. Under section 7-1(a), a person “is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” 720 ILCS 5/7-1(a). ‘Forcible felony’ means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual 1-12-2345 -24- assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.” Defendant was saying a battery on a public way is an aggravated battery and thus a forcible felony. But only aggravated batteries with great bodily harm or permanent disability or disfigurement are forcible felonies. 720 ILCS 5/2-8. Go to case.
Sufficiency of the Evidence – Traffic
Defendant is stopped on what appears to be a gas powered bicycle that required pedalling up to 8 to 10 miles per hour before activating. People v. Grandadam
The State charged defendant with driving while license revoked (count I) (625 ILCS 5/6-303(a)), operating an uninsured motor vehicle (count II) (625 ILCS 5/7-601), no valid registration (count III) (625 ILCS 5/3-401(a), and disobeying a traffic control device (count IV) (625 ILCS 5/11-305). However, this bicycle falls under the “low-speed gas bicycle” exception in the Code. 625 ILCS 5/1-140.15. The State failed to prove beyond a reasonable doubt that defendant’s motorized bicycle was a motor vehicle under the Code. Thus, Defendant’s convictions on counts I, II, and III, as each of those convictions required the operation of a “motor vehicle” as an element were all reversed. Count IV, the offense of disobeying a traffic control device applied to defendant even if he was not operating a “motor vehicle” and was sustained. The Code defines motor vehicles as “[e]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles.” 625 ILCS 5/1-146 (West 2014). Low-speed gas bicycles are themselves defined in the Code as “[a] 2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour.” 625 ILCS 5/1-140.15. Defendant’s unrebutted testimony was that the top speed the bicycle could reach powered by the motor alone was 17 miles per hour. The State presented no evidence to the contrary. The “Rules of the Road” under 625 ILCS 5/11-100 et seq mandate that “[t]he driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto.” 625 ILCS 5/11-305(a). Article XV of chapter 11 governs bicycles, and provides that the provisions of article XV that apply to bicycles also apply to low-speed gas-powered bicycles. 625 ILCS 5/11-1516. Article XV also provides that “[traffic laws apply to persons riding bicycles.” 625 ILCS 5/11-1502. Go to case.
Sufficiency of the Evidence – Residential Burglary
Defendant cannot be convicted of residentially burglarizing the apartment where he lived. People v. Larry
Defendant gets in an argument with his girlfriend. She “throws him out” for not coming home the night before. He breaks a window to get back inside. He then pulls her hair and takes her computer. The State must prove that he entered “the dwelling place of another.” The terms are pretty clear and unambiguous. By definition, “dwelling place” is not “of another,” where the defendant actually resides there. The state and trial judge made a big deal about the fact that he had no key. However, “possession of a key is not automatically indicative of mutual use or joint access of property for purposes of actual common authority.” Sometimes individuals do not have a key to a dwelling in which they do actually reside. The defendant lived in the apartment in every sense of the word. Go to case.
Sufficiency of the Evidence – Solicitation for Murder
Can Defendant be guilty of solicitation of murder if he never had the money nor intended to pay the hitman? People v. Hadden
Defendant wanted his codefendant in a burglary case to be gone. So he talked about finding a hitman in jail. Police record the phone calls and put an undercover in the jail with a wire claiming that he’ll do the deed. Defendant testified that he was just venting. He never had the money for the murder. He had no intention to pay and didn’t think anything would happen unless he paid. The evidence proved him guilty of attempted solicitation of murder for hire, an offense recognized by People v. Boyce, 2015 IL 117108. The evidence presented here was sufficient for the jury to find beyond a reasonable doubt that an agreement existed between defendant and the undercover agent. The fact that the arrangement seemed to be predicated upon defendant’s release from jail did not preclude the jury from finding that an “agreement” existed between defendant the person he wanted to do the killing. The evidence was therefore sufficient to prove defendant guilty beyond a reasonable doubt of solicitation of murder for hire. Go to case.
Sufficiency of the Evidence – Theft
This massive “sting” operation was insufficient to prove defendant guilty of theft or of running a continuing financial crime enterprise. People v. Nestisingha
Following a bench trial, defendant was found guilty of operating a continuing financial crime enterprise, selling stolen property online, and four counts of theft. Defendant was charged under 720 ILCS 5/16-1(a)(4) requiring that Defendant obtain control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him or her to believe that the property was stolen. This requires that the property actually be stolen. Here, undercover officer’s sold various marked items to Defendant and inferred they were stolen when in fact they were just the proceeds of a police operation. The police would sell the stuff to Defendant who just turned around and sold it on ebay. But, the property obtained by defendant was not stolen, thus, necessary element of the offense is absent. They charge him wrong. State should have gone with 720 ILCS 5/16-1(a)(5). Because defendant’s convictions for theft are vacated, his conviction for operating a continuing financial crime enterprise, which is based on the existence of the theft convictions, must also be vacated. Go to case.
Trial – Jury Deliberations
No error in not allowing the jury to take the video into the deliberation room but instead just playing it for them in the courtroom upon their request. People v. Johnson
Defendant head butted an officer and bit his finger while being processed. It was all on tape. When the jury asked to see the video again, the defense just wanted to give it to them so they could play it in the deliberation room. The judge, however, just played it for them one more time in the courtroom with all the parties present. Here, the record shows no prejudice. There is no presumption that a third viewing of the video was prejudicial and the record of the courtroom viewing displays no intent to influence the jury’s decision. The jury obviously continued their deliberations in private. The parties were admonished that they would not be allowed to verbally communicate with the jury during the courtroom viewing, and neither the prosecutor nor defense counsel attempted to do so. Go to case.
Trial – Jury Instructions
No error to not give the causation instruction for reckless homicide, even though it should have been given it does not have to be given. People v. Mefford
Defendant punched his victim in the face at least 6 times and robbed him. Victim died. Defendant got the manslaughter instruction but was, none the less, convicted of murder. The jury was instructed on IPI 7.15 which says the state need not proof defendant’s acts were the sole cause of his death. This instruction should have been given for the lesser included offense of manslaughter, but it was not. There was no error because, although, 7.15 exists the court was under no obligation to provide it. The instructions covered the essential elements at that was sufficient. Go to case.
Murder conviction reversed where the trial court failed to instruct the jury on the State’s burden to disprove defendant’s justification for his use of force in self-defense. People v. Cacini
Defendant was convicted of first degree attempt murder and aggravated battery of two officers in plainclothes. He ran one of them over with his car and fought with the the other one. Defendant testified he was hit by the officer, they shot at him and he thought he was being car jacked. Although the trial court properly ruled that the evidence justified giving the jury self-defense instructions, the court failed to instruct the jury that the State had to prove beyond a reasonable doubt that defendant was not justified in using the force that he used. Contrary to the guidance in IPI Criminal 4th No. 24-25.06A, none of the issues instructions informed the jury that the State had the burden to prove that “the defendant was not justified in using the force which he used” as the final proposition of the charged offenses. Although very tenuous, defendant did acknowledge he struggled to get away and said he accelerated his car to get away. Thus, there was plain error here when the jury was not instructed on the State’s corresponding burden of proof State (Once the defense properly raises the affirmative defense of self-defense, the State bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.) Go to case.
Defendant’s conviction for aggravated battery must be reduced to battery because the IPI was wrong. People v. Smith
Defendant was charged with aggravated battery of a senior citizen for slapping around the old man he was caretaking. IPI 11.15 and 11.16 became effective prior to substantive changes to the statutory language. At that time, the pertinent statutory definition of aggravated battery to a person over the age of 60 required the State to prove the defendant “[k]nowingly and without legal justification and by any means cause[d] bodily harm to an individual of 60 years of age or older.” The corresponding jury instructions required the State to prove beyond a reasonable doubt the defendant committed a battery and “at the time [the] defendant did so, [the victim] was an individual of 60 years of age or older.” Consistent with those instructions and the statutory language, our courts determined the State was not required to prove the defendant had knowledge of the victim’s age at the time of the offense. However, effective in 2006, the legislature amended the aggravated-battery statute to state a defendant commits an aggravated battery against a person over the age of 60 when he knowingly commits a battery and “[k]nows the individual harmed to be an individual of 60 years of age or older.” Pub. Act 94-327, § 5 (eff. Jan. 1, 2006) (amending 720 ILCS 5/12- 4(b)(10). The statute has since been renumbered. See 720 ILCS 5/12-3.05(d)(1). The new language adopted in Public Act 94-327 added an element to the offense requiring the State to prove the defendant knew the individual harmed was 60 years of age or older, an element which is not reflected in the present set of jury instructions. In short, IPI Criminal 4th Nos. 11.15 and 11.16 do not accurately convey the present law regarding the charge of aggravated battery to a person over the age of 60. The state never established exactly what Defendant knew of the victim’s age. Go to case.
Procedure – Discovery Violation
Error to deny this postconviction petition in the third stage when the Defense clearly established the detective’s failure to turn over field notes severely prejudiced his case. People v. Carballido
Defendant was 17 and drove the shooter around the day of this gang killing. The State’s case largely turned on establishing that defendant knew that the shooter possessed a gun when he drove him to the apartments. The law at that time did not require that defendant’s interview be recorded. Defendant testified he did not know the shooter was picking up a gun. An officer testified the Defendant’s sister had told police he drove the shooter so the shooter could pick up a gun. The detective did have hand written field notes summarizing his conversation with the sister. These were only disclosed to the defense years later during postconviction proceedings. The field notes do not state that the sister told the detective that defendant told her that defendant knew prior to the killing that the shooter had a gun. This lost opportunity to impeach the detective constituted a Brady violation. The defense lost its opportunity to argue that, because the written report was likely drawn from memory as to what the sister told the detective, it is more likely that the detective made a leap in his own mind that the sister told him that defendant knew that the shooter was getting a gun. Shining light on the omission in the field notes would have given the jury a basis to question whether the sister really told the detective about defendant’s knowledge of the gun. As defendant’s knowledge of the gun was a central issue in this case, any evidence challenging his knowledge would be favorable to defendant. In summary, The State failure to disclose the field notes was required by law under 725 ILCS 5/114-13(b); Ill. S. Ct. R. 412(a).Looking at this discovery violation in the context of the entire case, including: (1) the high relevance of the suppressed evidence; (2) additional errors stemming from and surrounding the discovery violation, such as the introduction of hearsay and improper closing argument; and (3) a significant dispute over the reliability of other key evidence against defendant, i.e., defendant’s inculpatory statement, we do not have confidence in the integrity of the verdict. It is reasonably probable that, if the defense had been given access to the field notes prior to trial, the outcome of the trial would have been different. Go to case.
Procedure – Confession
Defendant was improperly transported to court from IDOC on a writ so that he could be interrogated about his solicitation of murder of a judge, nonetheless, he is not entitled to any remedy. People v. Vanderark
Defendant was convicted of solicitation of murder of the judge, prosecutor and witness who appeared in the case against him. He took issue with the fact that he was written into court in a writ of habeas corpus in the defendant’s case. He argued that the State tricked a judge into issuing a false writ so that he could be interrogated in Du Page County. The defendant contends that, because the State’s conduct was so outrageous, his statements should have been suppressed. This was just a subterfuge so that he could be interviewed by investigators. Defendant, though, had written letters asking about his car. The trial court determined that the State’s deceptive actions had led to the writ being improperly issued. Nonetheless, the trial court found that the State’s actions did not “rise to the level of such egregious conduct to warrant suppression of an otherwise voluntary statement.” Defendant is entitled to no relief here. The IDOC has been granted sole discretion in placing, handling, and transferring inmates within its control. The legislature has given the IDOC the power to assign inmates to any of its facilities, and the IDOC has been charged with the responsibility of maintaining programs of control and rehabilitation for inmates within its facilities. 730 ILCS 5/3-2-2(1)(b), (1)(d). Recognizing the DOC’s responsibility for placing and controlling inmates within its facilities, the legislature enacted the Act (735 ILCS 5/10-101 et seq. (West 2012)) to set forth the proper procedure for bringing an inmate before the trial court. The trial court may enter a habeas order to have the inmate: (1) testify; (2) be surrendered in discharge of bail; (3) attend the inmate’s own criminal proceedings; and (4) testify in out-of-state criminal proceedings. If the Act is not complied with and an inmate is not transferred for proper reasons, the affected transferring agency may be entitled to up to $300. 735 ILCS 5/10-131 (West 2012). The Act does not specifically confer any rights upon the inmate. Here, any purported violation of the Act did not implicate any of the defendant’s constitutional rights. Therefore, the defendant was not entitled to a suppression of his statements, based on the violation of the Act. The trial court therefore did not err in denying the defendant’s motion to suppress his statements. Go to case.
Procedure | Constitutionality of SORA
The Sex Offender Registration Act (SORA) and the general sex offender statutory scheme against sex offenders remain constitutional. People v. Avila-Briones
All of Defendant’s arguments were struck down. A lifetime of restrictions similar to parole or probation is not a grossly disproportionate sentence for defendant’s offense violating prohibitions against cruel and unusual punishment. The Statutory Scheme serves legitimate penological goals. The Court disagreed with defendant’s contention that the Statutory Scheme violates substantive due process. It does not affect fundamental rights enshrined in the substantive due process clause and is rationally related to the goal of protecting the public from the possibility that sex offenders will commit new crimes. Finally, the reviewing court rejected defendant’s procedural due process claim because defendant is not entitled to additional procedures to evaluate his risk of reoffending where his risk of reoffending is irrelevant to his status as a sex offender under Illinois law. Go to case.
Procedure – Dismissal
Judge dismissed traffic misdemeanors when the state failed to show up, appellate court reverses and reinstates the convictions. People v. Lopez
After 15 minutes when state did not show up, the trial judge dismissed a misdemeanor DWLS and misdemeanor speeding for “failure to prosecute.” But the law says a court may dismiss an indictment, information, or complaint only upon the grounds set forth in section 114-1 of the Code of Criminal Procedure of 1963. Also, a trial court does have an inherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process even though that is not a stated ground in section 114-1. The reviewing court said this case come nowhere close to constituting “a clear denial of due process which prejudiced defendant.” This decision does not leave a court powerless to control its calendar. There are always contempt powers which can be used to require the State to appear. Go to case.
Procedure | Substitution of Judge | Competency of Child Witness
A missing jury instruction and a motion for a substitution of judge that should not have been granted did not prejudice this Defendant, and his aggravated battery of a child conviction stands. People v. Jackson
Automatic substitution of judge still requires: (1) is filed within 10 days after the cause has been placed on the trial call of a judge; (2) names only one judge; (3) is in writing; (4) alleges that the trial judge is prejudiced against the State; and (5) is made before any substantive rulings in the case. 725 ILCS 5/114-5(a) & (c) outline this “automatic” transfer rule. Section (d) outlines the substitution of judge for cause. Automatic transfers still require that the state at least allege prejudice even though it doesn’t have to be proven. Additionally, this 4 year old witness was competent to testify under 725 ILCS 5/115-14(b). A party may move for disqualification of a witness as incompetent to testify if the moving party can demonstrate that “he or she is incapable of either expressing himself or herself so as to be understood [citation] or of understanding the duty of a witness to tell the truth.” ). “Section 115-14 suggests that intellectual rather than moral fitness is the true measure of witness competency” since that section disqualifies a witness who is incapable of understanding the duty to tell the truth but not a witness who is unlikely to tell the truth. Id. at 81. The question of whether a witness is unlikely to tell the truth is a credibility determination for the trier of fact. Even though the victim did not answer every question when pressed he made himself understood. 725 ILCS 5/115-14(c) allows for a hearing to establish that the witness can (1) recollect correct impressions from his senses; (2) understand questions and express answers; and (3) appreciate the moral duty to tell the truth. Finally, a child statement under by section 115-10 requires a cautionary instruction as illustrated in section (c). Go to case.
Procedure | Fitness
These sex charges and 30 year sentence stand because Defendant’s fitness was properly dealt with after the court relied on the parties’ proper stipulations—the only evidence presented as to defendant’s fitness—when exercising its discretion and in determining that defendant was fit to stand trial. People v. Shaw
Defendant was diagnosed with Antisocial Personality Disorder. But his own evaluator concluded that, he was fit to stand trial, finding defendant was “able to understand the nature and purpose of the proceedings against him and [could] assist his attorney in his defense.” After a second evaluation and full fitness hearing (because he had deteriorated) Defendant was still found fit to stand trial. The court asked the parties if they would stipulate that if the doctor were called to testify, he would testify as set forth in his report. Both the State and defendant’s counsel stated they would and no further evidence was offered or presented as to the issue of fitness. The court then stated that it found defendant fit to stand trial “based upon the evidence presented.” This was close, but the court did not just merely adopt the conclusion of the report, but considered all the evidence to make up its own finding on Defendant’s fitness to stand trial. Bottom line: fitness cases are no fun and we have to always be vigilant against a situations where defendant starts out fit then goes south after that. Go to case.
Did counsel labor under a conflict of interest by representing two murder defendants through pretrial proceedings right up to the trial? People v. Hatchett
The prosecution had wanted to make an “offer” to defendant but hesitated because of the apparent conflict trial counsel had. The defense attorney testified at the third stage hearing that an offer was never really made to either client. The ASA clarified that he never made either the defendant or Foote any real offers, and that it never passed “the preliminary hypothetical stage.” Defendant said he no loyalty to his co defendant and had an offer been made requiring him to testify against the codefendant he would have taken it, despite the fact that his confession was suppressed after a motion to quash was granted. Yes, representation means assistance by an attorney whose loyalty to his or her client is not diluted by conflicting interests or inconsistent obligations, but our supreme court has consistently held that a conflict of interest is not inherent in the joint representation of criminal co defendants merely by virtue of such representation. In this case, the potential conflict of interest was brought to the court’s attention three months before the actual trial. Further, there is no legal authority, and the defendant does not cite any, to support the notion that the trial court had an additional duty to admonish the defendant about the conflict of interest even after the dual representation was resolved and the risk of a conflict of interest was removed. It is true that trial counsel did not pursue an offer. However, the hearing testimony reflected that this was due more to the fact that Defendant and trial counsel felt much more confident that defendant would be acquitted after they had won the motion to suppress his coerced confession. Defendant “was not interested” in pleading guilty, and cannot credibly claim otherwise now. It can therefore be inferred that defense counsel’s decision to forego approaching the State for a deal on behalf of the defendant, was strategically reasonable at the time. Through the lens of hindsight and time, the fallibility of that decision is unmistakable. Unfortunately for the defendant the effectiveness of his counsel’s representation is not measured through the lens of hindsight. The truth of the matter is that this case like scores of others, comes down to trial strategy that did not work out in the defendant’s favor, and it was proper to deny the petition. Go to case.
Reviewing defendant’s claim of ineffective assistance would effectively foreclose a postconviction on the issue so the Court refused to do it. People v. Taylor
After deliberations, the jury found defendant guilty of aggravated domestic battery for beating up his wife’s brother. Defendant filed a pro se motion for ineffective assistance of counsel. The trial court conducted a Krankel hearing, wherein defendant complained his counsel did not (1) introduce evidence on his behalf at trial, (2) meet with him to discuss the trial, and (3) discuss the State’s plea offer before trial.The court asked defendant to explain each allegation in detail. The court then asked defendant’s counsel to respond. To the court’s satisfaction, counsel explained the issues complained of were either (1) matters involving trial strategy or (2) non meritorious. The court denied defendant’s motion. Rather than addressing this issue on direct appeal, the court followed the long line of authority this court has established for declining to address ineffective-assistance-of-counsel claims on direct appeal where the record does not provide suitable explanations for counsel’s conduct and/or his decisions. A claim of ineffective assistance of counsel is often better made in proceedings on a petition for postconviction relief, where a complete record can be made. Go to case.
This denial of a postconviction petition at the second stage is affirmed. People v. Johnson
Defendant was convicted of murder in 2005 for a killing in 2003. The defendant asserted claims based on ineffective assistance of trial counsel, ineffective assistance of appellate counsel, false testimony, and a discovery violation. Defendant acknowledges his petition was untimely, but he blamed multiple prison lock-downs for this. The defendant had 35 days after the judgment on direct appeal to file a petition for leave to appeal and six months from that point to file his postconviction petition. It was filed 8 months late. It is well settled that a defendant’s unfamiliarity with those requirements does not demonstrate a lack of culpable negligence. And he appeared to have plenty of time before the lock-downs. Go to case.
This dismissal of postconviction petition is reversed in lite of People v. Allen. People v. Burns
Defendant filed an unnotarized affidavit from a codefendant to the effect that she was not aware of the plan to rob and shoot the victim. The petition was dismissed because because it was unsworn and in violation of section 122-2 of the Act, which states that a postconviction petition shall attach “affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122-2. The Illinois Supreme Court, in People v. Allen held that this fact alone (notarized affidavits) did not warrant summary dismissal at the first stage of postconviction proceedings. Lack of notarization here does not prevent the court from reviewing the petitioner’s substantive virtue” and “does not limit the *** identification of the sources, character, and availability of evidence alleged to support the petition. The defendant has presented an “arguable” claim that her trial counsel was ineffective in not calling the codefendant as a witness, and thus her postconviction petition was sufficient to avoid first-stage summary dismissal. Go to case.
Postconviction petition gets dismissed at the first stage. People v. Shipp
Defendant appeals the dismissal of his postconviction petition. His main issue was that trial counsel was ineffective for not impeaching the officer who testified that Defendant asked him why his girlfriend was charged when she didn’t even touch the gun. When the report indicated that he was asking why his girlfriend was charged with the same crime “when she had never even touched a handgun.” The reviewing court, like the trial judge, rejected defendant’s argument that impeaching the officer with his prior inconsistent statement “would have had a great dramatic effect on the jury.” Thus, trial counsel’s performance regarding the prior inconsistent statement did not arguably fall below an objective standard of reasonableness and defendant was not arguably prejudiced by it. Also, neither statute nor case law provide for a freestanding right to reasonable assistance of counsel at first-stage postconviction proceedings. Go to case.
Proper to dismiss this 2-1410 petition after defendant had already filed numerous petitions and motions. People v. Needham
Defendant was ordered: “…not to file further pleadings without prior leave of the court to do so. Any pleadings filed in violation of this order will be stricken and sanctions may be imposed.” defendant filed a “Motion For Leave To File Amended Motion For Petition For Relief of Judgment.” In it, defendant specifically cited section 2-1401 and argued that he was not properly admonished about MSR, resulting in an improper sentence. Defendant argues that, because his section 2-1401 “petition” was not properly served, the trial court’s “dismissal” was premature and the cause must be remanded for further proceedings. However, the Illinois supreme court recently clarified that, when the defendant claims that deficient service invalidates a sua sponte dismissal, the burden is on the defendant to affirmatively show that the State was not given proper notice. The court stated that it encouraged trial courts to ascertain and note of record the date on which the State was properly served but that “any section 2-1401 petitioner who seeks to use, on appeal, his own error, by way of allegedly deficient service, in an effort to gain reversal of a circuit court’s sua sponte dismissal of his or her petition on the merits, must affirmatively demonstrate the error via proceedings of record in the circuit court.” Here, defendant never affirmatively demonstrated deficient service. Accordingly, the trial court’s order was in conformance with the law. Go to case.
Appointed counsel on this postconviction petition was ineffective so defendant’s reversal of his petition is dismissed. People v. Rodriguez
Clearly, defendant’s fitness to stand trial was a constitutional issue that was strongly considered, should have been fully explored, and possibly should have been raised in the amended petition. Yet, for whatever reason, it was never fully explored, let alone raised. Defendant’s fitness at the time of trial needed to be reviewed in order for counsel to properly prepare the amended petition. The failure to do so, so clearly evident in the record, leads us to conclude that counsel did not make “amendments to the petitions filed pro se that are necessary for an adequate presentation of [defendant’s] contentions.” Ill. S. Ct. R. 651(c). The record here clearly and affirmatively shows that counsel failed to substantially comply with Rule 651(c) and failed to provide the reasonable level of assistance required in a second-stage postconviction proceeding. Go to case.
It is improper for appointed postconviction counsel to move to dismiss the petition; the better move for counsel is to move to withdraw. People v. Jackson
Defendant was granted leave to file a successive postconviction petition based on an actual claim of innocence and a 5 year old eye witness who could now identify the killer. Appointed counsel, however, filed a motion stating that defendant’s trial counsel was not ineffective for advising defendant to plead guilty based on the evidence against him, defendant’s actual innocence claim lacked merit, and none of the material attached to defendant’s petition constituted newly discovered evidence. The motion sought dismissal of defendant’s petition and permission for postconviction counsel to withdraw. The trial court dismissed the petition. But postconviction defense counsel may not argue against a client’s interests by seeking dismissal of a defendant’s postconviction petition. If appointed postconviction counsel believes that a client’s postconviction petition is frivolous and patently without merit, then counsel should file a motion to withdraw as counsel, rather than seek dismissal of the petition. After counsel has withdrawn, the court may appoint new counsel or allow the defendant to proceed pro se. Because the State never formally asked for the petition to be dismissed it was improper for the the trial court to dismiss this petition. Go to case.
Defendant challenges the dismissal of his section 2-1401 petition by arguing that it was improperly served upon the State. People v. Jones
Dismissal was proper. Pursuant to People v. Carter, 2015 IL 117709, Defendant bears the burden of proving that the service was improper. The court held that a statement, which states that he placed the petition in the institutional mailbox for mailing by United States mail, is insufficient. Carter, 2015 IL 117709, ¶ 20. In the case at bar, defendant failed to satisfy the burden described in Carter, and thus we must affirm for the reasons explained below. Go to case.