September 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.

Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download

APPLE PODCASTS GOOGLE PODCASTS

SPOTIFY ANDROID RSS

DIRECT DOWNLOAD

This criminal case list PDF download is clickable! It features a summary of all the September Illinois criminal cases for 2015. Click through to the actual court decision if you find the case of special interest.

Illinois Supreme Court

23 year old defendant was properly charged in adult court for crimes committed when he was a minor. People v. Fiveash

Although juvenile court jurisdiction is exclusive, this does not mean that an offender who ages out of the juvenile system can no longer be charged. Here, there was no delay in bringing charges after the facts came to light, and the charges were brought well within the applicable limitation period. Go to case.

Trial court does have authority to order defendants to pay their child support even when the crime they are on probation for is not related to their kids at all. People v. Goossens

A police sergeant was convicted of intimidation for threatening to refuse to respond to certain 911 calls. This was part of some dispute he was having with a racing stadium that was employing officers. As part of probation defendant was ordered to get current with his child support. Support of dependants is specifically listed as a discretionary probation condition. There is no statutory requirement that this enumerated condition must be reasonably related to the offense. Great discussion on when unenumerated conditions of probation may and may not be imposed on a defendant. Go to case.

A person can be convicted of obstruction – preventing apprehension – even though they may already be in custody. In re Q.P.

Minor was arrested on suspicion of a car burglary. He told cops he was a different person. When confronted with his real name he lied about the spelling, hoping his juvenile warrant would not come up. It did. The Illinois Supreme Court said the minor provided false information to prevent his apprehension on a warrant. Based on the case law defining “apprehension,” the term has a settled meaning in Illinois. The term has been defined consistently as a seizure, taking, or arrest of a person on a criminal charge. It did not matter he was in custody for something else. The evidence was sufficient to sustain the charge. Go to case.

Search & Seizure

Drug trafficking conviction must be reversed because this drug dog sniff exceeded the applicable scope of the traffic stop. People v. Litwin

Cop says he himself smelled weed. But put that aside for now. The car was stopped for a lane infraction.  45 minutes later a warning was given and then the cop starts asking about weed in the car…and even after that is when the drug dog is brought out and the dog DOES NOT alert! Oh yea, the dog is only called after defendant refuses to give consent to search. Trial court denied the motion based on the cop’s testimony that he smelled weed. Reviewing court said that clearly, the officer prolonged the traffic stop. The dispositive question centers around whether the officer was credible with regard to his claim that he smelled cannabis emanating from the vehicle as soon as he began talking to the defendant. The court concluded that the officer’s testimony was highly questionable. The officer’s account that he smelled cannabis emanating from the defendant’s vehicle “pretty much” right away when he began talking to the defendant belies common sense. Why would he still ask the defendant for consent to search the vehicle? Presumably, an officer—especially one with 27 years of experience and who has conducted thousands of stops involving cannabis—is aware of this principle. Did I mention that the police video tendered to the defense also appeared to be maliciously changed and tampered with? The circuit court’s finding that the officer was credible is not entitled to deference. Go to case.

Life sentence sustained; Defendant on parole can’t beat this car search. People v. Collins

Defendant was weaving in and out of traffic when police stop him. They quickly discover he is on parole. The officer knew he had signed a consent to search decree before being released to parole. See 730 ILCS 5/3-3-7. Officer testified the defendant indeed consented to a search.  Defendant argues that the stop was unreasonably long and as a result, turned a justified stop into an invalid seizure, rendering any subsequent consent invalid. Here, having learned that defendant was on MSR for a possession of cocaine conviction, it was reasonable for the officer to ask whether defendant had narcotics in the car. The inquiries, including his request for consent to search, did not themselves prolong the stop in any material way. It is true that a  search condition found in a defendant’s MSR agreement does not constitute prospective consent, and defendants on MSR are not equated with prisoners, who have no fourth amendment rights. With that said, the circumstances of a defendant on MSR, including the requirement to permit searches, mean that such individuals lack an expectation of privacy that society recognizes as legitimate.  Accordingly, “[t]he Fourth Amendment does not prohibit a police  officer from conducting a suspicionless search of a parolee.” Some case law does suggest that  an officer’s knowledge that the defendant was on MSR in and of itself renders a suspicionless search reasonable.  Go to case.

DEA agents improperly installed a GPS on Defendant’s car; the cannabis he bought when he drove to drug deal must be suppressed. People v. Bravo

Agents put a device on defendant’s car. They tracked defendant to a parking lot where he got in another car. Eventually, a drug deal goes down and defendant is found in the other car with a whole bunch of freshly purchased weed. The cops could not even say that they acted in good faith on the state of law when the tracker was attached. The only reason they told the court for using the tracker was that they were told Defendant was a cocaine trafficker with no other corroboration. The United States Supreme Court held that the installation of a GPS device without a warrant constitutes a search in violation of the subject’s fourth amendment rights. Jones, 132 S. Ct. at 949. However, the Illinois Supreme Court subsequently held that courts need not always suppress the evidence discovered through the warrantless use of GPS device, if the officers acted in good faith when they attached the device. People v. LeFlore, 2015 IL 116799. But here the state made no effort to show the State acted on reliable information. The agents never even asked an attorney for advice on the meaning of the case law or its application to this case. The GPS device was installed and used for a month, without any showing of grounds to suspect defendant of criminal activity. Where is the good faith reliance in these facts? Go to case.

DUI

Episode 097 – It was error to deny the defendant a chance to defend her aggravated DUI by arguing that the cannabis in her system did not contribute to the accident. People v. Way

The State argued that pursuant to People v. Martin, 2011 IL 109102, in an aggravated DUI case involving the presence of illegal drugs in a defendant’s system, the State is not required to prove that impairment by the drugs was the proximate cause of the victims’ deaths or injuries; to the contrary, the State need prove only that the defendant’s driving was a proximate cause of the deaths or injuries. The defendant agrees that the State must prove that the defendant’s driving proximately caused the accident, but argues that proximate cause requires, inter alia, foreseeability, and that therefore the defendant should have been allowed to introduce evidence that might have convinced the trier of fact that an unforeseeable sudden illness, rather than the defendant’s driving, was the sole and proximate cause of the accident. Defendant wanted to present to the trier of fact the testimony of her physician, that the defendant has low blood pressure, and that “it is possible that the loss of consciousness right before the accident was caused by this condition.” Defendant should have been allowed to present her evidence, the State should have been allowed to attempt to discredit or rebut that evidence, and the trier of fact should have been allowed to evaluate it. Go to case.

Trial Reversals

Episode 089 – Attempted murder convictions are reversed because judge abandoned his role as a neutral arbiter to the prejudice of Defendant.  People v. Wiggins

Defendant was a gang member selling drug on another gang’s corner. Two opposing gang members confront him. They shoot defendant. Defendant signs a statement naming the two that shot him. At trial, however, defendant testifies that he lied in the statement. The judge interrupted the state’s direct to ask the victim directly if he went to the state or the police with his new story. Several times, with other witness with different testimony than their written statements the judge “sustained his own objection” – meaning he stopped the defense attorney from pursuing a line of cross examination based on the court’s own interruption. The judge further signaled to the jury his attitude towards the defense when he referred to the prosecution’s redirect examination of the  victim as “what we just did,” and when he said to Defendant’s counsel, in front of the jury, “watch yourself, man.” While it is true that a judge has a right to question witnesses or call other witnesses to the stand in order to elicit the truth or to bring enlightenment on material issues which seem obscure, he must do it in a fair and impartial manner, without showing bias or prejudice against either party. Jurors are ever watchful of the attitude of the trial judge and his influence upon them is necessarily and properly of great weight, thus his lightest word or intimation is received with deference and may prove controlling. In a criminal trial, a hostile attitude toward an accused, or his witnesses, is very apt to influence the jury in arriving at its verdict.”  The problem here was that The judge’s questions here did not clarify the victim’s testimony about the shooting and what the victim saw. The questions only presented to the jury a new basis for finding the victim’s testimony at trial less credible. Further, The judge’s sua sponte objections precluded the jury from hearing potentially admissible evidence that might have helped defense counsel make a better case for the defense. Go to case.

Episode 096 – Second murder trial conviction must be reversed for lack of evidence. People v. Casciaro

States charges defendant with felony murder predicated on intimidation after a 17 year old grocery stock boy goes missing and the body is never found. The prosecution did not occur until many years later. It was based mainly on the testimony of individuals looking for leniency deals from the prosecution in their current cases. Where the evidence is so “unreasonable, improbable, or unsatisfactory” as to justify a reasonable doubt of the defendant’s guilt, a conviction will be reversed. Here, the State failed to prove intimidation.  Intimidation is a specific-intent crime. Specific intent is made up of two elements: the defendant must have (1) intended to engage in certain acts that constitute the actus reus, and (2) the defendant must have performed those acts with an intended   Therefore, intimidation requires (1) that a threat be communicated (2) with the specific intent to coerce another to do something against his will. Intimidation requires proof of a threat of physical harm at some time, possibly in the future.  the victim must fear that the maker of the threat will carry it out. the inference that defendant and the “enforcer” must have discussed and agreed that “the enforcer” would act as defendant’s enforcer is not rationally connected to and does not more likely than not flow from the basic fact that a witness testified that defendant told him he had “an enforcer.” Plus, the “enforcer” testified he was not told what to do and that it was not his job to do the bidding for defendant. Finally, none of the State’s inferences was supported by corroborating evidence of guilt. More troubling, the physical evidence and the testimony of disinterested witnesses show that whatever happened to the victim could not have been what the State’s witness portrayed. Go to case.

Robbery conviction reversed where numerous aspects of the victim’s testimony contained material inconsistencies. People v. Shaw

When the police searched Defendant, who was arrested almost immediately after the “robbery”, they found neither cash nor a gun.  A reviewing court will reverse a conviction based on eyewitness testimony where that testimony is “improbable, unconvincing or contrary to human experience.” At no time during the videos can Defendant be seen hiding a firearm nor does he have an apparent opportunity to do so. The reviewing court held that the specificity of the victim’s claim of the presence of a gun and the centrality of that claim to his account of the robbery, the police officer’s inability to locate the gun badly undermines his entire testimony. The video also directly contradicted many material statements made by the victim. Viewing the interactions captured by the surveillance video, the victim’s various statements to the officers and his explanation of events at trial simply were too improbable, unconvincing, and contrary to human experience to sustain the conviction. Go to case.

Episode 093 – Criminal sexual assault convictions reversed because the record is devoid of any credible evidence to support the determination that at the time of defendant’s sexual encounter with the victim, defendant knew she was unable to give knowing consent.  People v. Roldan

Defendant was charged with having sex with a 16 year old victim who was “unable to understand the nature of the act or [was] unable to give knowing consent.” 720 ILCS 5/11-1.20(a)(2). Here,  “consent,” refers to the victim’s “freely given agreement” to the act of sexual intercourse. 720 ILCS 5/11-1.70(a). The trial court found that the victim was in a “blackout” state based on testimony of her condition later that night. However, the critical point in time is during the sexual encounter. The record contains no evidence of a “black out” or other behavior by the victim at the time of her sexual encounter with defendant, which suggests that defendant should have known that she lacked the ability to give knowing consent. The evidence, even from the State’s witnesses, was that the victim was able to walk, talk, and communicate in those moments right before and after the sexaul act. This is clearly insufficient to meet the standard of proof beyond a reasonable doubt. Go to case.

More Trials

No error form the prosecution when it pointed out to the jury that defense counsel could have requested DNA testing & the prosecution did not attack the veracity of defense counsel in closing.  People v. Kelley

In regards to the DNA testing questions, the purpose of the State’s comments was to address concerns about the case management process raised when defendant cross-examined the State’s expert witnesses about the process. Defendant opened the door to the State’s response, and error cannot be claimed. In closing, the state argued that the defense wanted the jury to ignore evidence and to consider the case with a cold heart. It is true that argument is improper when a prosecutor in closing arguments suggests that defense counsel fabricated a defense theory, attempted to free his client through trickery or deception, or suborned perjury. However, the State only sought to remind jurors that this was not a referendum on the propriety of the victim’s life but a trial on the question of who murdered her. Go to case.

Trials | Sufficiency of The Evidence

Aggravated vehicular hijacking conviction is reversed because defendant never dispossessed the bus driver of the bus.  People v. Reese

Defendant was in a hospital 3 days after being convicted of murder. With a shank he made a run for it. A person commits vehicular hijacking when he takes a motor vehicle from the person or immediate presence of another by the use of force or by threatening the imminent use of force. 720 ILCS 5/18-3(a). The court concluded that the taking element of the aggravated vehicular hijacking statute requires that the defendant cause the victim to part with possession or custody of [the vehicle] against his will. Here, Defendant boarded a bus, threatened the driver with a shank, and told him to drive. Moments later, the driver locked up the breaks throwing defendant forward. Wrestling ensued with defendant, shortly thereafter, defendant fleeing the bus. Other crimes, shackling defendant, and waiver of counsel also discussed. Go to case.

No violation of 730 ILCS 5/5-5-4 (which forbids a higher sentence after a reversal) occurred here because defendant had her original plea deal vacated thus she was never “sentenced” by the court. People v. Rogers

Defendant and codefendant brutally beat her ex husband and his new wife with a hammer, but they survived. She was sentenced to 61 years after she vacated her deal for 30 years. The nomenclature of section 5-5-4 pertains to “resentencing.” Because the trial court vacated the guilty plea and the accompanying sentence, so her higher sentence is proper. The implication of defendant’s interpretation would be that every criminal defendant should enter into a plea agreement, only to withdraw it later and take a chance on a trial in the hopes of a lesser sentence, knowing that he or she would never receive a harsher sentence. This kind of gamesmanship is at odds with the purpose of a plea. Also, there was no sentence that was subject to “resentencing.” No ineffective assistance here when defendant himself agreed to trial strategy.Defense counsel told the court that she and defendant preferred that no terms of the co defendant’s deal be given to the jury. The trial court noted that the decision was “a matter of strategy” and asked defendant specifically whether she agreed; defendant responded affirmatively. The record shows that defense counsel executed that strategy, thoroughly impeaching the codefendant. There is no reasonable probability that using the proffer agreement for additional impeachment would have led to a different outcome. The record as a whole satisfies us that the State’s case was subjected to meaningful adversarial testing. Considering the totality of defense counsel’s conduct, we note that counsel competently defended this case. Go to case.

Defendant was properly convicted of a felony possession of a firearm without a valid FOID even though he was eligible for reinstatement after his revocation. People v. Larson

Defendant was charged with Class 3 felony under 430 ILCS 65/14(c)(1) (2010)). This section provides, that a violation of section 2(a)(1) is a Class 3 felony when the offender’s FOID card is revoked. Defendant says that this section is in conflict with section 14(b), which provides, in pertinent part, that a violation of section 2(a)(1) is a Class A misdemeanor “when the person does not possess a currently valid [FOID card], but is otherwise eligible under this Act.” Reviewing court said that based on the structure and language of the Act and its sentencing scheme, it is evident that the General Assembly concluded that possession of firearms after revocation of one’s FOID card represents a greater public-safety threat than the mere failure to apply for a card. Two canons of construction are discussed.  Go to case.

Defendant appealed that he committed a “public” battery because the jail where he hit the guy was not open to the public. People v. Messenger

720 ILCS  5/12-3.05(c) of the Criminal Code says an aggravated battery takes place in a public place. Defendant battered another inmate in the Whiteside County jail. The jury was told that. “The entire county jail is public property. The definition of public property does not require that the property be an area open or accessible to the public.” Since, the jail was owned by the county, it was “public.” The term “public property” and the others that appear with it are not defined by the statute. Public property, for purposes of the statute, need not necessarily be publicly owned. Public property need not necessarily be accessible to the general public in order to be defined as such. “Nothing indicates the General Assembly meant for the plain and ordinary meaning of ‘public property’ to be anything other than government-owned property. The General Assembly could not have meant to discourage attacks on people in the courthouse, but not in the jail. Go to case.

Trials | Lesser Included

Reversal error in this aggravated cruelty to a companion animal trial to not instruct the jury on the lesser included offense of violation of owner’s duties. People v. Lee

Defendant had four horses removed from deplorable barn conditions.  But in this case, violation of owner’s duties was a lesser-included offense of aggravated cruelty and the reviewing court said there was no question that the evidence at trial supported this instruction. Giving the jury an instruction on a lesser-included offense provides an important “third option” to the jury. If the jury is not certain that the State has proved the charged offense but believes that a defendant is “guilty of something,” the jury might convict the defendant of the lesser offense rather than convict or acquit the defendant of the greater offense. A lesser-included offense is “established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.”  The court makes this decision by looking at the facts alleged in the charging instrument to see whether the description of the greater (charged) offense contains a “broad foundation” or “main outline” of the lesser offense. The indictment need not explicitly state all of the elements of the lesser offense, so long as any missing element can be reasonably inferred from the indictment allegations. Go to case.

Trials | Ineffective Assistance

Was trial counsel ineffective for promising an alibi witness in opening and then not producing one? People v. Winkfield

We don’t know. The record is not developed enough. Defendant is encourages to proceed in a postconviction petition. A defense counsel’s failure to present testimony as promised, while a serious deficiency, does not constitute ineffectiveness per se. The test is whether any error by counsel was so grave that had the error not occurred, the result of the case would likely have been different. Here, in light of the overall nature and quality of the evidence considered in light of counsel’s otherwise effective representation and cross examination of the victims there is an absence of a record to establish counsel’s performance was deficient. Go to case.

Defenses

Reviewing court refused to reduce defendant’s first degree murder conviction to second degree murder. People v. Costellano

A trial court’s decision to believe one witness’s account of an attack over another “is virtually unassailable on appeal.” An imperfect form of second-degree murder is when there is sufficient evidence that the defendant believed he was acting in self-defense, but that belief is objectively unreasonable. In this bench trial, the judge did not find defendant credible and thus defendant failed to satisfy his initial burden of proving the mitigating factor by a preponderance of the evidence.  Go to case. 

Guilty Plea

Proper to deny withdrawal of guilty guilty plea even though the trial judge did not know all the details surrounding the plea deal. People v. Colin

Defendant was told his brother was being offered 23 years which was significantly less than his brother could have gotten. Defendant say he plead guilty in part on this information but his trial judge was never informed of this fact. However, in the Rule 604(d) hearing in the lower court Defendant  the defendant adamantly denied that this was an element of the agreement  even where the court accepted his trial counsel’s statement that it absolutely was part of the inducement to plead. Reversal is not warranted with these facts. Yet,  the reviewing court expressed  extreme displeasure with both the prosecutor and defense counsels for their lack of candor with the court regarding all of the terms of the plea agreement. Go to case.

Defendant’s attorney filed a faulty 604(d) certificate in an attempt to withdraw the guilty plea. People v. Martell

This defendant plead guilty for 12 months in prison. Then he got cold feet. He tried to withdraw his guilty plea but the 604 certificate only mentioned withdrawing the plea and said nothing about the sentence. Defendant’s argument is straightforward. Illinois Supreme Court Rule 604(d) requires the defendant’s trial attorney to certify that “the attorney has consulted with the defendant either by mail or in person to ascertain [the] defendant’s contentions of error in the sentence or the entry of the plea of guilty.”  In People v. Tousignant, 2014 IL 115329, which involved an open plea, the supreme court held that the quoted language requires the attorney to certify that he or she has consulted with the defendant “ ‘to ascertain [the] defendant’s contentions of error in the sentence and the entry of the guilty plea. Because the defendant who enters a partially negotiated plea may still move to reconsider both the entry of the plea and the sentence, there is no reason to allow the attorney to be concerned with only one or the other. Tousignant does not support limiting the consultation requirement merely because the defendant entered a partially negotiated plea. Requiring consultation about both the plea and the sentence would make it “more likely, rather than less likely, that all of the contentions of error were included in the post-plea motion, enabling the trial court to address and correct any improper conduct or errors of the trial court that may have produced the guilty plea.”   Thus, even with a fully negotiated plea, the trial court’s role in sentencing, and the potential for sentencing error, have dwindled but not wholly disappeared. Therefore, even after the imposition of an agreed sentence, the defendant’s attorney ought not forgo all concern about infirmities in the sentence.  Go to case.

Evidence

One of three counts aggravated criminal sexual assault must be reversed because the state admitted impermissible hearsay evidence purportedly pursuant to 725 ILCS 5/115-10.1. People v. Brothers

The reluctant victim testified that she didn’t remember what she told the police but did acknowledge that she spoke with them. However, her testimony came nowhere close to satisfying the acknowledgement requirement of subsection (c)(2)(B) of the statute.  section 115-10.1 of the Code speaks in terms of statements, not references. The victim needed to be confronted with what she actually said to the police, not just a reference that she spoke with them. The court noted that there is a continuing need for the training of Illinois law enforcement personnel so they will become familiar with the requirements of section 115-10.1 of the Code. State’s Attorneys’ offices should foster a close working relationship with their local law enforcement agencies to provide guidance on the effective use of section 115-10.1. That statute provides a valuable tool in the administration of criminal justice, but the State’s Attorneys’ offices will have difficulty wielding that tool effectively unless law enforcement personnel first do their part.  Go to case.

Clergy-penitent privilege prevented defendant’s spiritual advisor from testifying against defendant. People v. Thodos

Defendant was charged with violating an order of protection by slashing the tires on a car on his wife’s driveway. The witness was  a leader of a small bible-study group at church. The witness was discipling defendant. As the relationship continued, defendant confessed a number of things. After making the confidential confessions defendant would pray with the witness and ask for forgiveness and strength. The witness then shared this information with at least 8 other people. The information was to remain confidential and the witness was looking for the best possible way to guide defendant. 735 ILCS 5/8-803 provides that a “clergyman” or “accredited” “practitioner” cannot be compelled to testify about admissions or confessions made to him or her for the purpose of seeking spiritual guidance. The court didn’t feel that sharing the information in this case waived the privilege. But if it did the privilege survived because defendant did not waive it. Go to case.

Motion for ballistic testing, under 725 ILCS 5/116-3 is properly denied. People v. Navarro

In a postconviction petition defendant alleged for the first time that the murder weapon may have been used by one of a group of young thugs at the scene. Defendant wanted the bullets tested and run through the IBIS database. He was hoping the search could discover links to other crimes consistent with the extreme anti-social psyche of one who entertains an inhibition to casual violence. Thus, there was a potential to produce new, non-cumulative evidence materially relevant to his assertion of innocence. Defendant’s claim failed to take into account that four witnesses who identified him as the shooter.  This overwhelming eyewitness testimony did not hinge on the ballistics testimony presented by the State, which corroborated the eyewitness testimony by linking the shells at the scene to the recovered gun, and thus the results of any IBIS testing would be immaterial. Go to case.

Sentence

Episode 092 – Defendant’s 100 year sentence is vacated and the case is remanded for resentencing before a different judge after trial judge allowed personal opinion to cloud his sentence. People v. Pace

The sentencing judge punished the defendant for choosing to remain silent during the sentencing hearing. The judge punished the defendant for exercising his right to silence by drawing from his silence the negative inference that he lacked remorse and considered this purported lack of remorse as an aggravating factor. Additionally, the record revealed that the trial court considered its personal feelings about gang violence as well as evidence that was not presented by either party. The trial court’s extensive remarks about the problem of gang violence in Chicago, as well as its discussions of its personal views and experiences and consideration of evidence not located in the record, showed that the judge considered much more than just the facts of the case and the mitigating and aggravating factors. The sentence was vacated and the case remanded for a new sentencing hearing before a different judge. Great discussion on vacating a guilty plea takes place here. Constitutionality of Illinois juvenile sentencing also upheld. Go to case.

Defendant’s incarceration until his 21 first birthday for being a violent juvenile offender (VJO) under 705 ILCS 405/5-820 is sustained. In re Deshawn G.

Defendant was 16 years and found with a gun on new year’s eve. The Act says upon a minor’s second finding of delinquency for an offense that, in an adult case, “would have been a Class 2 or greater felony[,] involving the use or threat of physical force or violence,” or which involves a firearm the minor shall be imprisoned until his 21st birthday. Aguilar does not prevent these adjudications because the Defendant was under 21 which was always an exception under Aguilar. See People v. Mosley, 2015 IL 115872 and In re Jordan G., 2015 IL 116834. The court had no problem finding this statute constitutional in every way. Go to case.

Defendant was sentenced to 12 years for predatory criminal sexual assault and only appealed his $500 sex fine. People v. Scalise

The sex crimes assessment ($500) was erroneously imposed, but defendant was statutorily subject to a $100 sexual assault fine that was not imposed. At the time of sentencing, section 5-4-3(j) of the Unified Code of Corrections (Code) did not authorize the imposition of a $500 sex crimes assessment. See 730 ILCS 5/5-4-3(j). Instead, this section authorized the imposition of a $200 DNA analysis fee, which the court properly imposed in a different section of the costs order. Id. Therefore, defendant’s $500 sex crimes assessment is void because the trial court could not assess costs that were not authorized by statute. Alternatively, the trial court may have intended to impose a $500 sex offender fine, which was statutorily mandated at the time of sentencing. 730 ILCS 5/5-9-1.15(a).  As this fine is punitive, its imposition in the instant case would violate the prohibition against ex post facto laws and be subject to vacatur. As a result, defendant’s $500 sex crimes assessment cannot stand as a section 5-9-1.15(a) mandatory sex offender fine. Finally, we note that defendant’s plea agreement does not become void because of the changes to his sentence. Montiel, 365 Ill. App. 3d at 606. “As a matter of common sense, the fines and fees are a minor issue and an inessential term of the agreement.” Id. at 607. Consequently, the plea agreement stands despite the correction of the fines and fees issues in the sentence.  Go to case.

Miller v. Alabama mandates that this postconviction petition be granted so that Defendant receive a new sentencing hearing. People v. Craighead

Defendant was convicted of a double murder committed when he was 16. Pursuant to statute, he was tried as an adult and sentenced to life in prison. Defendant filed a postconviction petition arguing Miller applies retroactively. See People v. Davis, 2014 IL 115595. Even though defendant filed his petition late, the reviewing court felt it could not ignore the results in Davis. An exception is made in cases in which fundamental fairness requires such an exception. Here, since Miller and Davis had not been published defendant had cause for not raising this issue. Go to case.

Conflict of Interest

Per se conflict of interest requires reversal of armed robbery conviction. People v. Poole

Defendant’s trial counsel was also representing the state’s hostile witness in her unrelated forgery charge. The witness was Defendant’s girlfriend who helped the state with their timeline, defendant’s clothes, where he was and who was with during the time of the robbery. It appeared that it was known to the trial judge and the state the the witness was “hostile” towards the state and in fact was likely to testify as a defense witness. The supreme court has identified three situations where a per se conflict exists: “(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; (2) where defense counsel contemporaneously represents a prosecution witness; and (3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.”It is undisputed defendant’s counsel represented both defendant and the girlfriend at the same time and that when was called by the State to testify at defendant’s trial. There is no getting around this rule. Go to case.

Procedure

No error in denying defendant’s motion to substitute judge. People v. Klein

Defendant was convicted of aggravated battery to a child. He alleged that the trial judge shared a close personal friendship with the child’s father. The trial judge submitted an affidavit saying was not a close personal friend of the father and has never met or talked to him. Further, the affiant trial judge stated he did not personally know any of the victim’s family who testified and did not know that any of the family members were friends or acquaintances with the judge’s adult children. Based on this well-established case law, the reviewing court concluded that the judge properly decided the motion for substitution for cause, following substantive rulings and a finding of guilt by the trial judge, by ruling that defendant must allege sufficient facts establishing actual prejudice of the trial judge against defendant and not merely the appearance of impropriety.  Go to case.

Postconviction

This third stage dismissal of defendant’s postconviction petition is sustained after a full hearing on whether defendant was fit at the time of trial. People v. Garcia

The court found Defendant was fit at all relevant times during the proceedings. The court found the testimony of the State’s witnesses more credible than that of the defense witnesses. In effect, a retrospective fitness hearing occurred. Despite attempted suicides and being on medications for depression Defendant knew what was going on and could aid in his defense. His depression, suicidal thoughts, and anxiety to be situational and only triggered when he believed his trial was going poorly.  Go to case.

Defendant argued in a postconviction petition that his appellate counsel was ineffective because United States Supreme Court Justice Clarence Thomas voted against him and would have changed his deciding vote and invalidated crucial evidence introduced at his trial. People v. Williams

Even if defendant had preserved this argument, it is nonetheless meritless because he cannot show it is arguable that his appellate counsel’s performance was objectively unreasonable. First, defendant’s appellate counsel brought his case all the way to the United States Supreme Court and managed to convince four of the nine justices that a constitutional violation occurred. Additionally, defendant’s appellate counsel made the same substantive argument that defendant’s petition alleges that his appellate counsel should have made, simply without specifically citing the three documents he requested. Defendant’s petition simply contends that his appellate counsel could have argued better by referencing the documents attached to his petition. However, defendant is not entitled to “perfect representation.” Go to case.

No error in denying leave to file another postconviction petition. People v. Crenshaw

Leave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings.”  Further,  the State is not prohibited from providing its input at the motion stage. The State’s participation at this stage is consistent with the general principle that only one postconviction petition may be filed by a petitioner without leave of court. Besides, the defendant failed to show that the error he cited prejudiced his case in any way (same judge presiding over a divorce proceeding connected to the case and the judge knew one of the minor outcry witnesses). Go to case.

Defendant’s dismissal of his postconviction petition is reversed; Defendant gets to proceed to a third stage evidentiary hearing on defendant’s coerced confession claim. People v. Tyler

The eyewitness later recanted saying she felt harassed and intimidated by police and prosecutors. But in an evidentiary hearing she stuck to her trial testimony. It turns out the police involved in the case also had a long, long history of misconduct, beatings, and coerced confessions. The State argued res judicata barred the coercion claim because defendant covered it on his direct appeal. However, the doctrine of res judicata is “relaxed” if the defendant presents substantial new evidence. For new evidence to be sufficient to relax res judicata and warrant an evidentiary hearing, ” ‘the evidence (1) must be of such conclusive character that it will probably change the result on retrial; (2) must be material to the issue, not merely cumulative; and (3) must have been discovered since trial and be of such character that the defendant in the exercise of due diligence could not have discovered it earlier.’ ” The collection of other cases, affidavits, and reports in which defendants and witnesses alleged abuse by the same detectives who investigated the instant case must be considered new evidence. Given the sensitive nature of police investigations and the sheer scale of the criminal justice system, it is unreasonable to expect defense counsel to discover whom these individual detectives were abusing unless counsel interviewed every suspect who was detained by them. Go to case.

Defendant is entitled to some postconviction relief because his postconviction counsel was ineffective. People v. Ross

Defendant alleged he was induced to plead guilty to felony murder after he was erroneously advised on the applicable truth in sentencing statute in effect at the time. Also, in postconviction proceedings, a defendant is only entitled to reasonable assistance of counsel. Postconviction counsel is required to: (1) consult with the defendant to determine what he contends are his constitutional deprivations; (2) examine the record of prior proceedings; and (3) make amendments to the petition as necessary. Postconviction counsel who fails to ensure that the defendant’s postconviction petition included the necessary supporting affidavit provides unreasonable assistance of counsel. Postconviction counsel filed no other affidavits or depositions and offered no oral testimony or other evidence to support defendant’s claim of ineffective assistance based on wrong advice from his trial counsel. Postconviction counsel did comply with the requirements as set forth in Rule 651(c), particularly his responsibility to make all the necessary amendments to the pro se petition.  Go to case.

Trial counsel failed to advise defendant of the potential effect of his plea on his status in this country. People v. Lopez

Defendant plead guilty and was placed on 410 probation for possession of cannabis. Defendant then appealed, arguing his trial counsel was ineffective for misadvising him of the immigration consequences of the guilty plea. Reviewing court that at best, the record reflects that defendant and his attorney discussed how a plea to possession of more than 10 but less than 30 grams of cannabis “may affect” defendant’s status. The record does not reflect what defendant’s attorney told him that effect may be. “Where the defendant is pleading guilty to a possession charge which under section 1227 is clearly deportable *** counsel must tell his client that deportation is inevitable as a result of the plea. Whatever conversation defendant and his attorney had about what the effect of his plea “may” be, the record does not disclose that defense counsel told defendant deportation was inevitable and, therefore, does not positively rebut defendant’s assertion counsel did not so advise him. ” Go to case.