Criminal Law & Practice MCLE Meeting/Brown Bag Lunch … · Criminal Law & Practice MCLE...

Criminal Law & Practice MCLE Meeting/Brown Bag Lunch with the Appellate Lawyers

Association DuPage Judicial Center – Attorney Resource Center

1/25/18

11:45 AM – Noon Welcome/Introductions Kendall Hartsfield, Section Chair

Noon – 1:30 PM Program

Illinois Supreme Court 2017 Criminal Cases: Year in Review

Justice Joseph Birkett, Justice James Epstein, Leah Bendik & Patrick Cassidy.

Gretchen Harris Sperry - Moderator

See attached for speaker bios

A panel discussion of significant criminal cases decided by the Illinois Supreme Court in 2017

Next Meeting: TBD

DCBA Events: 2/3/18 – Mega Meeting 2018, Sheraton Lisle Hotel:

Special Courts Workshop presented by Andrea Neumann & Cathy Nusgart, Criminal Law Judges’ Panel, PRMCLE Presentation by Wayne Brucar

2/22/18 – Happy Hour, Coopers Corner in Winfield

3/2/18 – 43rd Annual Judges’ Nite

View & Print All CLE Certificates through the DCBA Website:

Manage Profile -> Professional Development (under content & features) and choose the icon to the left of each meeting to print your certificate directly or choose to have them emailed to you to save to your computer (you MUST be logged in to view this feature)

DCBA OnDemand CLE is Now Powered by IICLE The Illinois Institute for Continuing Legal Education (IICLE®) and the DuPage County Bar Association (DCBA) are excited to offer a new IICLE®Share collaboration to provide DCBA members a high quality and reliable online learning experience. Please visit the DCBA Website for more information

Hon. Joseph E. Birkett, Illinois Appellate Court, Second [email protected] Birkett worked as an Assistant State’s Attorney for the DuPage County State’s Attorney’sOffice from 1981-1996, before being appointed State’s Attorney on October 1, 1996. In November1996, he was elected State’s Attorney for the first of four terms. During his career as the DuPageCounty State’s Attorney, Justice Birkett was elected President of the Illinois State’s Attorney’sAssociation and Chairman of the Board of Governors of the Office of the State’s Attorneys AppellateProsecutor. He served on the Governor’s Commission to Re-Write the Criminal Code; the IllinoisSentencing Advisory Council; the Criminal Law Edit, Alignment and Reform Commission; and theInterstate Gun Trafficking Task Force. On November 3, 2010, Justice Birkett was appointed to theSecond District Appellate Court.

* * * *Hon. James R. Epstein (Ret., Illinois Appellate Court, First District)Justice James Epstein has spent a significant portion of his career practicing criminal law. Early inhis career, he served as a Cook County Public Defender, and spent three years in its Murder TaskForce. He was then in private practice for 15 years trying both civil and criminal cases. JusticeEpstein was then appointed to the Cook County Circuit Court in 1999, and served for seven yearsin the Criminal Division. He served another five years in the Chancery Division before being electedto the Illinois Appellate Court in 2010. In 2015, he retired from the bench and joined JAMSAlternative Dispute Resolution, where he now serves as a neutral in complex cases. He received bothhis undergraduate and law degrees from Northwestern University.

* * * *Leah Bendik received her law degree from the University of Illinois. After graduation from lawschool, she clerked for Illinois Supreme Court Justice Rita Garman for two years. Leah hasworked for the Criminal Appeals Division of the Illinois Attorney General’s Office since 2004,and currently works as the State Appeals Supervisor. Leah has prepared the criminal portion ofthe ALAs Cases Pending newsletter since 2010 and is a member of the ALA’s Board ofDirectors.

* * * *

Patrick Cassidy obtained his law degree from Chicago-Kent College of Law. He has beenemployed at the Office of the State Appellate Defender since 2005 and is currently a supervisorthere. From 2011 to 2017, he also worked as a clinical adjunct instructor for the CriminalAppeals Clinic of the DePaul University College of Law.

mailto:[email protected]

Office of the State Appellate Defender

Illinois Criminal Law Digest

Illinois Supreme Court Cases 2017

MICHAEL J. PELLETIER P.O. Box 5240State Appellate Defender Springfield, IL 62705-5240

Phone: 217/782-7203DAVID P. BERGSCHNEIDER http://www.state.il.us/defender/JAMES CHADDDeputy State Appellate Defenders, Editors

©Copyright 2017 by the Office of the State Appellate Defender. All rights reserved.

TABLE OF CONTENTS

ACCOUNTABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

BATTERY, ASSAULT & STALKING OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . 4

COLLATERAL REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

GUILTY PLEAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

HOMICIDE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

INDICTMENTS, INFORMATIONS, COMPLAINTS. . . . . . . . . . . . . . . . . . . . . 24

JURY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

JUVENILE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

PAROLE, PARDONS & PRISONERS RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . 32

PROSECUTOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

REASONABLE DOUBT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

ROBBERY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

SEARCH AND SEIZURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

SENTENCING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

SEX OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

STATUTES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

TRAFFIC OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

TRIAL PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

UNLAWFUL USE OF A WEAPON.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

WAIVER - PLAIN ERROR - HARMLESS ERROR. . . . . . . . . . . . . . . . . . . . . . . 50

TABLE OF AUTHORITIES

City of Chicago v. Alexander.. . . 43

In re Destiny P.. . . . . . . . . . . . 28, 44

In re Jarquan B.. . . . . . . . . . . . . . . 28

People v. Ayres. . . . . . . . . . . . . . . . 11

People v. Bailey. . . . . . . . . . . . . . . . 6

People v. Boykins.. . . . . . . . . . . . . 21

People v. Brown. . . . . . . . . . . . 12, 22

People v. Cole (Campanelli). . . . 12

People v. Fort. . . . . . . . . . . . . . . . . 29

People v. Gray. . . . . . . . . . . 4, 35, 44

People v. Holman. . . . . . . . . . . 30, 39

People v. Holmes. . . . . . . . . . . . 2, 49

People v. Howard.. . . . . . . . . . . . . 40

People v. Hunter & Wilson.. . 31, 45

People v. Johnson. . . . . . . . . . . . . . 7

People v. Nelson. . . . . . . . . . . . . 1, 14

People v. Pearse. . . . . . . . . . . . . . . 41

People v. Peterson. . . . . . . 15, 18, 45

People v. Reese. . . . . . . . . . 16, 36, 48

People v. Relerford. . . . . . . . . . 5, 46

People v. Ringland, Saxen, et al.. . . . . . . . . . . . . . . . . 34, 37

People v. Sebby. . . . . . . . . . . . 26, 50

People v. Shinaul. . . . . . . 3, 9, 22, 24

People v. Staake. . . . . . 20, 23, 25, 42

People v. Veach. . . . . . . . . . 3, 10, 16

People v. Way. . . . . . . . . . . . . . 35, 47

People v. Wright.. . 17, 20, 25, 27, 37

Round v. Lamb. . . . . . . . . . 11, 32, 47

ACCOUNTABILITY

People v. Nelson, 2017 IL 120198 (No. 120198, 6/15/17)

1. A defendant is legally accountable for another if she intends to promote orfacilitate an offense and aids or abets another in the planning or commission of theoffenses. 720 ILCS 5/5-2(c). Under the common-design rule, if two or more peopleengage in a common criminal design, any acts in furtherance of the design areconsidered to be acts of all the parties. Thus a defendant may be accountable for firstdegree murder where she enters a common design to commit battery yet a murder iscommitted by another during the course of the battery.

2. Four women including defendant and co-defendant Hall had a confrontationwith a man, Wilson, at an apartment. Wilson left the apartment but when Hallthought that he had stolen her cell phone, the four women went after Wilson. As theywere leaving the apartment, defendant grabbed a knife. Hall then took the knife fromdefendant.

When the women caught up with Wilson, he tackled one of them and all fourstarted hitting and kicking him. While they were hitting and kicking Wilson,Defendant saw Hall stab him with the knife. Defendant told Hall to stop and tried tograb the knife away. The women then returned to the apartment. Wilson died frommultiple stab and incision wounds.

Defendant and Hall were represented by attorneys from the same clinic in jointbut severed bench trials. Defendant’s counsel argued that she acted in self-defensebecause the women only attacked Wilson after he tackled one of them. The court founddefendant guilty of first degree murder.

3. On appeal, defendant argued that her attorneys labored under an actualconflict of interest where there was a plausible alternative defense based on lack ofaccountability, but since this defense was hostile to Hall’s defense, her attorneys couldnot pursue it and still maintain their loyalty to Hall.

The Court affirmed defendant’s conviction finding that there was no plausiblealternative strategy based on lack of accountability available in this case. Here the fourwomen had a common design to commit a criminal assault on Wilson. Under Illinoislaw, when Hall suddenly stabbed Wilson during the attack, defendant was accountablefor Hall’s acts under the common-design rule regardless of whether defendant told Hallto stop or grabbed the knife.

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APPEAL

People v. Holmes, 2017 IL 120407 (No. 120407, 7/20/17)

1. The void ab initio doctrine is a State judicial principle holding that a faciallyunconstitutional statute is void from the beginning. An unconstitutional law confersno right, imposes no duty, and affords no protection. It is as if the law had never beenpassed. A defendant cannot be prosecuted under a statute that is void ab initio.

The court concluded, however, that where a statute is held unconstitutionalbecause it violates a provision of the United States constitution and not merely as amatter of state constitutional law, the void ab initio doctrine is subject to the limitedlockstep doctrine. The latter doctrine provides that where a provision of the Stateconstitution has an equivalent provision in the federal constitution, the Stateconstitutional provision will be interpreted in accordance with the United StatesSupreme Court’s interpretation of the federal provision, unless there is reason tobelieve that the drafters of the Illinois constitution intended a different result.

2. Here, defendant was arrested for possessing a revolver on a Chicago street.He was charged with two counts of aggravated unlawful use of a weapon based oncarrying the weapon on the street and two counts of AUUW for possessing the weaponwithout a valid FOID card. After the arrest, People v. Aguilar held that the sectionsof the AUUW statute prohibiting the carrying of a weapon were faciallyunconstitutional as a violation of the Second Amendment. Defendant was subsequentlyconvicted of the counts alleging carrying the weapon without a valid FOID card.

Because the arresting officer learned that defendant did not have a FOID cardonly after he had made the arrest for carrying the weapon, defendant argued that theprobable cause for the arrest was retroactively invalidated under the void ab initiodoctrine. Defendant argued that it would be improper to prosecute him for not havinga FOID card when probable cause for the arrest existed only under a different,unconstitutional statute.

The Supreme Court rejected this argument, noting that federal case law clearlyholds that probable cause is not retroactively invalidated because the statute on whichan arrest was based is subsequently held unconstitutional. Because strict applicationof the Illinois void ab initio doctrine would conflict with the limited lockstep doctrine,the defense argument was rejected. “[T]he void ab initio doctrine does not retroactivelyinvalidate probable cause based on a statute later held unconstitutional on federalconstitutional grounds or on State constitutional grounds subject to the limitedlockstep doctrine.”

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People v. Shinaul, 2017 IL 120162 (No. 120162, 2/17/17)

The Illinois Constitution gives the Appellate Court jurisdiction to hear appealsfrom all final judgments of the circuit court. Ill. Const. 1970, art. VI, §6. A finaljudgment is a determination by the court on the issues presented by the pleadings“which ascertains and fixes absolutely and finally the rights of the parties in thelawsuit.” A judgment is final and appealable if it concludes the litigation on the meritsso that only the execution of judgment remains.

As part of a negotiated guilty plea agreement, defendant pled guilty to one countof aggravated unlawful use of weapons and in exchange the State nol-prossed the eightremaining counts. Years later defendant filed a 2-1401 petition for relief fromjudgment (735 ILCS 5/2-1401) seeking to vacate his conviction since it was void underAguilar, 2013 IL 112116. The State conceded that Aguilar voided defendant’sconviction and filed a motion to reinstate some of the charges it had nol-prossed. Thecircuit court vacated defendant’s conviction and allowed him to withdraw his guiltyplea, but denied the State’s motion to reinstate the charges. The State appealed but theAppellate Court ruled that it lacked jurisdiction to consider the State’s appeal.

The Supreme Court disagreed. There were three issues before the circuit court:whether defendant’s conviction should be vacated, whether defendant should beallowed to withdraw his negotiated guilty plea, and whether the State could reinstatethe nolled counts. The State’s motion filed in response to defendant’s 2-1401 petitionwas similar to a counterclaim. Once the circuit court granted defendant’s requestedrelief, the merits of the State’s motion became pertinent to the outcome of thejudgment. The circuit court thus entered a final decision when it denied the motion.

The circuit court’s order left no cause pending or undecided. Once it resolved allpending issues, the case terminated on the merits between the parties, allowing theState to appeal as of right. The Appellate Court thus had jurisdiction to hear theState’s appeal.

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People v. Veach, 2017 IL 120649 (No. 120649, 5/18/17)

1. Generally, constitutional claims of ineffective assistance of counsel areforfeited unless raised on direct appeal. Furthermore, procedural default applies toissues which could have been raised on direct appeal, but were not. Collateral reviewis not a remedy for claims that could have been presented on direct review.

However, procedural default does not apply to constitutional issues whichdepend on facts that are not in the record on direct appeal. Such issues may be raisedon collateral review.

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2. The court rejected the Fourth District Appellate Court’s practice of applyinga “categorical approach” to determine whether ineffective assistance of counsel claimsshould be considered on direct appeal. Reviewing courts are required to considerineffective assistance claims on a case-by-case basis, and to resolve such issues ondirect appeal unless the record is insufficient to allow the claim to be considered.

3. The court rejected the Appellate Court’s conclusion that the record wasinsufficient to resolve defendant’s ineffective assistance claim on direct appeal.Defendant claimed that defense counsel was ineffective for stipulating to the admissionof recordings of statements by three state witnesses and for agreeing to allow therecordings to be played in their entirety. The Appellate Court found that the recordwas inadequate to decide the issue because the record did not reflect why defenseagreed to have the recordings admitted.

The Supreme Court noted that the record showed that defense counsel wantedto use parts of the recordings for impeachment purposes, and believed that by doingso he would open the door for the State to admit bad character evidence and thewitness’s prior consistent statements. In addition, defense counsel initially questionedwhy the entire video should be played for the jury, but acquiesced to the State’sresponse that under the “doctrine of completeness, the entire recording had to be seenby the jury.”

The Supreme Court expressed no opinion whether defense counsel wasineffective, but remanded the cause with instructions to the Appellate Court toconsider the merits of the issue.

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BATTERY, ASSAULT & STALKING OFFENSES

People v. Gray, 2017 IL 120958 (No. 120958, 9/21/17)

1. An as-applied challenge to the constitutionality of a statute is directed againsthow the statute applies to the facts and circumstances of a defendant’s case. Asuccessful as-applied challenge enjoins enforcement of the statute only against thedefendant in a specific case.

Pursuant to the State’s police power, the legislature has broad discretion todefine offenses and prescribe penalties. This discretion is limited by due process. Whena statute does not affect a fundamental right, it is subject to the rational basis test.Under this test, a statute will be upheld if it bears a rational relationship to alegitimate legislative purpose.

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Defendant was convicted of aggravated domestic battery, which is defined ascommitting a battery against “any family or household member.” 720 ILCS 5/12-3.3(a)(a-5). Family or household member includes any person who has had a datingrelationship, with no time limits on former relationships. 720 ILCS 5/12-0.1. Defendantargued that the statute violated due process as applied to him because he had notdated the victim for 15 years.

The Supreme Court rejected defendant’s argument. The court found that thelegislature’s purpose in enacting the statute was to curb the “serious problem ofdomestic violence.” The legislature could rationally believe that people are more likelyto batter a former partner no matter how long ago that relationship ended. Thus, thecourt held that the absence of a time limit on former dating relationships wasreasonable and rationally related to the goal of curbing domestic violence.

2. Self-defense is an affirmative defense, but once it is raised, the State has theburden of proving that defendant did not act in self-defense. Self-defense includes thefollowing elements: (1) threat of unlawful force against defendant; (2) defendant wasnot the aggressor; (3) imminent danger of harm; (4) use of force was necessary; (5)defendant actually and subjectively believed use of force was necessary; (6) defendant’sbeliefs were reasonable. If the State negates any of these elements, the defendant’sself-defense claim fails.

Defendant argued that he acted in self-defense because he stabbed the victimonly after she bit him. The Supreme Court disagreed. Defendant was much larger thanthe victim and the victim was unarmed. And he admitted that the bite never broke hisskin. Under these circumstances, the jury could have reasonably believed thatdefendant’s use of force was unnecessary.

Defendant’s conviction was affirmed.

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People v. Relerford, 2017 IL 121094 (No. 121094, 11/30/17)

The Illinois Supreme Court held that the stalking and cyberstalking statutesviolated the First Amendment and were facially unconstitutional.

A defendant commits stalking when he “knowingly engages in a course ofconduct directed at a specific person,” and he knows or should know that his conductwould cause a reasonable person to fear for his or her safety or suffer emotionaldistress. 720 ILCS 5/12-7.3(a)(1), (a)(2). Course of conduct is defined as two or moreacts where a defendant “follows, monitors, observes, surveils, threatens, orcommunicates to or about” a person. 720 ILCS 5/12-7.3(c)(1). Emotional distress isdefined as “significant mental suffering, anxiety, or alarm.” 720 ILCS 5/12-7.3(c)(3).

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The cyberstalking statute imposes criminal liability based on similar language. 720ILCS 5/12-7.5(a).

Content-based laws targeting speech based on its communicative content arepresumed to be invalid. Here the proscription against communications “to or about”another person that would cause a reasonable person to suffer emotional distresscriminalizes speech based on its content. Additionally, the statutes criminalize anumber of commonplace situations where an individual’s speech might cause anotherperson to suffer emotional distress. The statutes are thus overbroad on their face andas such violate the First Amendment.

The Public Act that created the present version of the stalking and cyberstalkingstatutes specifically stated that the provisions of these statutes are severable. TheCourt therefore struck the phrase “communicates to or about” from each statute. Sincedefendant’s prosecution relied on the now-stricken language, the Court reversed hisconvictions.

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COLLATERAL REMEDIES

People v. Bailey, 2017 IL 121450 (No. 121450, 10/5/17)

Generally, the Post-Conviction Hearing Act contemplates that a defendant willonly be allowed to file one post-conviction petition and any claim not raised in theoriginal or amended petition is waived. 725 ILCS 5/122-3. Section 122-1(f) provides alimited exception to this rule. It permits successive petitions if the defendant firstobtains permission from the court and demonstrates cause and prejudice for not raisingissues in the first petition. This provision does not mention what role, if any, the Statemay play at the cause-and-prejudice stage. The statute contains no express languageeither permitting or forbidding the State’s input when the court decides whether togrant a defendant’s motion for leave to file a successive petition.

Defendant filed a motion for leave to file a successive petition. He alleged actualinnocence but did not address cause and prejudice. The State filed a written objectionand defendant filed a response to the State’s objection. The trial court held a hearingon defendant’s motion. The State was present and argued that defendant’s motionshould be dismissed. Defendant was neither present nor represented by counsel. Thetrial court denied defendant’s motion and dismissed his petition.

The Supreme Court held that the State should have no input into the trialcourt’s decision to allow or deny defendant’s motion to file a successive petition. Thecause and prejudice determination is a question of law to be decided on the pleadings.The motion is directed to the court and the court must decide the legal question of

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cause and prejudice. Although the Act does not expressly prohibit the State’s input, theAct contemplates that the trial court will conduct an independent determination.Permitting the State to argue against a finding of cause and prejudice when defendantis not represented by counsel is “inequitable, fundamentally unfair, and raises dueprocess concerns.”

In the interest of judicial economy, however, the Supreme Court revieweddefendant’s motion and determined that despite the error in allowing the State toparticipate, there was no need for remand. Defendant made no attempt to satisfy thecause and prejudice standard and there were serious defects in his claim of actualinnocence. The court thus affirmed the denial of defendant’s motion.

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People v. Johnson, 2017 IL 120310 (No. 120310, 1/20/17)

1. Defendant was convicted of first-degree murder and sentenced to 50 yearsimprisonment in 2005. His conviction and sentence were affirmed on direct appeal onMay 7, 2007. Defendant did not file a petition for leave to appeal. He filed a pro se post-conviction petition on August 25, 2008. The case was eventually advanced to second-stage proceedings where defense counsel filed a motion to allow the late filing ofdefendant’s petition.

Judge Vecchio held an evidentiary hearing on the issue of timeliness. Defendanttestified that he received help and advice in filing his petition from a jailhouse lawyer.Judge Vecchio granted defendant’s motion to file the late petition because defendanthad been unaware of the deadline for filing and had relied on the jailhouse lawyer forhelp. After the case was reassigned to Judge Wilt, the State filed a motion to dismissarguing that the petition was untimely. Judge Wilt granted the State’s motion findingthat the petition was untimely.

The Appellate Court affirmed the dismissal and the Illinois Supreme Courtgranted defendant leave to appeal. In the Supreme Court defendant argued that: (1)the Post-Conviction Hearing Act does not include a time limit for filing a petitionwhere no petition for leave to appeal has been filed; (2) if the statute is ambiguous therule of lenity requires the court to interpret the act favorably to defendant; (3) even ifthere were a time limit, defendant was not culpably negligent due to the confusinglanguage of the statute and his reliance on the advice of a jailhouse lawyer; and (4)Judge Wilt had no authority to overrule Judge Vecchio’s prior order regardingtimeliness. The Supreme Court rejected all four arguments.

2. The cardinal rule of statutory construction is to give effect to the legislature’sintent. Courts presume that the legislature did not intend an absurd result. Where aliteral reading of a statute produces absurd results, the literal meaning should yield.

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When the intent and purpose of a statute can be determined, words can be modified,altered or inserted to cure any inconsistency with the legislature’s intent.

Section 122-1(c) of the Post-Conviction Hearing Act provides for the time limitson filing a post-conviction petition. In situations where the defendant files a directappeal but he does not file a petition for certiorari in the United States Supreme Court,the Act states that “no proceedings...shall be commenced more than 6 months from thedate for filing a certiorari petition.” 725 ILCS 5/122-1(c).

The court found that a literal reading of the statute does not include a deadlinefor filing a petition where, as here, no leave to appeal is filed. The United StatesSupreme Court only has jurisdiction to consider a cert petition when an appeal hasbeen taken to the state court of last resort. Thus the date for filing a cert petition canonly be ascertained when an appeal is taken to the Illinois Supreme Court. If no appealis taken to the Illinois Supreme Court, then no cert petition may be filed, and there canbe no due date for filing the cert petition. The six-month deadline from the date forfiling the cert is therefore never triggered.

The court held that “this literal reading of the statute must yield because it isat odds with the purpose of the statute.” The statute is intended to provide a deadlinefor filing post-conviction petitions, so it “does not follow” that the legislature wouldexempt a “certain subset” of defendants from any filing deadline. Construing thestatute literally would lead to unintended and absurd results.

To construe the statute as the legislature intended, the court held that it mustinsert “leave to appeal” language into the statute. Therefore, the court held that thestatute provides that a post-conviction petition must be filed within six months of thedate for filing a cert petition or a petition for leave to appeal. If defendant does not filea petition for leave to appeal, the six-month time period for filing a post-convictionpetition begins to run after the 35 days allowed for filing a petition for leave to appeal.Here, the due date for filing a petition for leave to appeal was June 11, 2007, and thusthe due date for defendant’s post-conviction petition was six months later on December11, 2007. Defendant’s petition, filed in August, 2008, was untimely.

3. The court rejected defendant’s argument that the statute was ambiguous andthus the rule of lenity should negate any finding of culpable negligence. Under the ruleof lenity, ambiguous criminal statutes are generally construed in a defendant’s favor.But a post-conviction proceeding is not part of the criminal process. It is instead acollateral attack on the judgment of conviction that is “civil in nature.” Additionally,“the rule of lenity does not require a court to construe a statute so rigidly as to defeatthe intent of the legislature.”

4. The court held that the delay in filing the petition was due to defendant’sculpable negligence, rejecting defendant’s argument that confusion over the statute’sdeadline and reliance on the advice of a jailhouse lawyer negated his culpability.

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Ignorance of the law will not provide an excuse for the failure to timely file a petition.And reliance on the advice of jailhouse lawyers is not reasonable and cannot negateculpable negligence. The court found that defendant was culpably negligent since hisactions were greater than ordinary negligence and more akin to recklessness.

5. Finally, the court held that Judge Wilt did not err in overruling judgeVecchio’s prior order regarding timeliness. A court in a criminal case has the inherentpower to reconsider and correct its rulings, including interlocutory rulings. JudgeVecchio’s timeliness ruling was an interlocutory order that Judge Wilt had the powerto reconsider.

The court affirmed the dismissal of defendants’ post-conviction petition.

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The Illinois Constitution gives the Appellate Court jurisdiction to hear appealsfrom all final judgments of the circuit court. Ill. Const. 1970, art. VI, §6. A finaljudgment is a determination by the court on the issues presented by the pleadings“which ascertains and fixes absolutely and finally the rights of the parties in thelawsuit.” A judgment is final and appealable if it concludes the litigation on the meritsso that only the execution of judgment remains.

As part of a negotiated guilty plea agreement, defendant pled guilty to one countof aggravated unlawful use of weapons and in exchange the State nol-prossed the eightremaining counts. Years later defendant filed a 2-1401 petition for relief fromjudgment (735 ILCS 5/2-1401) seeking to vacate his conviction since it was void underAguilar, 2013 IL 112116. The State conceded that Aguilar voided defendant’sconviction and filed a motion to reinstate some of the charges it had nol-prossed. Thecircuit court vacated defendant’s conviction and allowed him to withdraw his guiltyplea, but denied the State’s motion to reinstate the charges. The State appealed but theAppellate Court ruled that it lacked jurisdiction to consider the State’s appeal.

The Supreme Court disagreed. There were three issues before the circuit court:whether defendant’s conviction should be vacated, whether defendant should beallowed to withdraw his negotiated guilty plea, and whether the State could reinstatethe nolled counts. The State’s motion filed in response to defendant’s 2-1401 petitionwas similar to a counterclaim. Once the circuit court granted defendant’s requestedrelief, the merits of the State’s motion became pertinent to the outcome of thejudgment. The circuit court thus entered a final decision when it denied the motion.

The circuit court’s order left no cause pending or undecided. Once it resolved allpending issues, the case terminated on the merits between the parties, allowing the

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State to appeal as of right. The Appellate Court thus had jurisdiction to hear theState’s appeal.








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Round v. Lamb, 2017 IL 122271 (No. 122271, 8/3/17)

To be entitled to be released from custody pursuant to an order of habeas corpus,the petitioner must demonstrate that he or she is incarcerated under a judgment of acourt that lacked subject matter jurisdiction or that some occurrence subsequent to theconviction justifies release. To be entitled to an order of mandamus, the petitionermust establish a clear right to relief, a clear duty on the part of the official to act, clearauthority in the public official to comply with the writ, and that there is no otheradequate remedy.

COUNSEL

People v. Ayres, 2017 IL 120071 (No. 120071, 2/17/17)

Following his guilty plea and the imposition of sentence, defendant mailed a prose petition to withdraw guilty plea and vacate sentence alleging “ineffective assistanceof counsel,” but without including any supporting facts or explanation as to whycounsel had been ineffective. The circuit court never considered or ruled on defendant’spetition.

The Illinois Supreme Court, with three justices dissenting, held that defendant’sexpress but bare allegation of ineffectiveness without any factual support orexplanation was sufficient to trigger a Krankel inquiry. The claim need not includefacts or specific examples since it is the purpose of the inquiry itself to give thedefendant an opportunity to develop the underlying factual basis of the claim.Additionally, judicial economy is served by requiring a Krankel hearing since it willfacilitate the trial court’s full considerations of defendant’s claims when the facts andcircumstances are much clearer “in the minds of all involved,” and thereby potentiallylimit issues on appeal.

The court rejected the State’s argument that this would put an undue burdenon trial courts to “minutely scrutinize” every pro se filing, noting that Krankel waslimited to post-trial motions.

The case was remanded to the trial court to conduct a preliminary Krankelhearing.

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People v. Brown, 2017 IL 121681 (No. 121681, 11/30/17)

1. The Sixth Amendment guarantees a criminal defendant the right to effectiveassistance of counsel at all critical stages of the criminal proceeding, including at aguilty plea proceeding. A claim that a guilty plea defendant was denied the effectiveassistance of counsel is governed by the Strickland test, which requires the defendantto establish that counsel’s performance fell below an objective standard ofreasonableness and caused prejudice.

To satisfy the prejudice requirement of Strickland, a guilty plea defendantmust show a reasonable probability that, but for counsel’s errors, he would havepleaded not guilty and insisted on going to trial. Where an ineffective assistance claiminvolves a matter of strategy related to the chances for acquittal, defendant is requiredto show that he would have been acquitted or would have had a viable defense at trial.Where the claim is related to defendant’s understanding of the consequences ofpleading guilty, however, the prejudice prong is satisfied where defendant shows thathad counsel informed him of the consequences of a guilty plea, it would have been arational decision to reject the plea bargain and go to trial.

2. Here, defendant could not show that it would have been rational for him toreject the plea bargain and go to trial. Defendant pleaded guilty to the Class X felonyof being an armed habitual criminal, in return for an 18-year sentence and dismissalof a home invasion charge which would have carried a mandatory 15-yearenhancement. The court concluded that given defendant’s significant criminal history,if he had been convicted after a trial his sentences for both armed habitual criminaland home invasion would have been toward the higher end of the authorizedsentencing range. Under these circumstances, it would not have been rational to rejectthe plea bargain providing a lower sentence even had his trial counsel correctlyinformed him that his armed habitual criminal conviction was subject to an 85% goodtime requirement (rather than 50%, as counsel believed). Because defendant could notshow that it would have been rational to reject the plea bargain, he failed to make anadequate showing of prejudice.

The trial court’s order dismissing defendant’s post-conviction petition at thesecond stage was affirmed.

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People v. Cole (Campanelli), 2017 IL 120997 (No. 120997, 11/30/17)

1. A criminal defendant has a Sixth Amendment right to the effective assistanceof counsel, which includes assistance by an attorney whose allegiance is not diluted byconflicting interests. Requiring or permitting a single attorney to represent co-defendants does not per se violate the Sixth Amendment. However, because a possible

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conflict of interest is inherent in almost every instance of multiple representation, adefendant who objects to multiple representation must have the opportunity to showthat a potential conflict imperils his right to a fair trial.

2. Rule 1.10 of the Illinois Rules of Professional Conduct of 2010, which prohibitslawyers associated in a “firm” from knowingly representing a client when any memberof the firm practicing alone would be prohibited from doing so by a conflict of interest,does not prohibit representation of co-defendants by separate assistant publicdefenders. First, the plain language of the definition of the term “firm” excludes publicdefender offices (Illinois Rule of Professional Conduct of (2010) Rule 1.10 cmt. 1).Second, it must be assumed that when the Supreme Court adopted Rule 1.10(a), it wasaware of and did not intend to invalidate existing Illinois precedent that a publicdefender’s office is not a “firm” for purposes of conflict of interest law. Third, the courtreiterated its precedent holding that the adversarial tendencies of lawyers within thepublic defender’s office provide sufficient protection against the risk of a conflict ofinterest occurring between assistant public defenders representing co-defendants.

3. The court rejected the argument that the Public Defender of Cook County isthe attorney for every case to which the office is appointed, so that a conflict of interestnecessarily occurs even where different assistant public defenders represent co-defendants. The court stressed that the Public Defender herself does not providerepresentation for every defendant. Instead, the assistant public defender assigned toa particular case represents the individual client. The fact that the Public Defender hassupervisory authority over every assistant public defender does not, in and of itself,disqualify the entire office from representing co-defendants.

4. The court acknowledged that in specific circumstances an actual conflict ofinterest may exist where separate assistant public defenders represent co-defendants.Where counsel brings the possibility of such a conflict to the court’s attention beforetrial, only the gist of a conflict need be presented to require the appointment of newcounsel.

This does not mean that the trial court may not inquire as to the basis of therepresentations regarding a conflict of interest, however, so long as the attorney is notimproperly required to disclose confidential communications of the client. One of thetrial court’s responsibilities is to take adequate steps to deal with the possibility ofconflicts, including ascertaining whether the risk of conflict is too remote to warrantseparate counsel.

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People v. Nelson, 2017 IL 120198 (No. 120198, 6/15/17)

1. Where a defendant first raises a conflict of interest issue after trial adefendant must demonstrate that an actual conflict of interest affected his counsel’sperformance. In order to establish this, a defendant must first demonstrate that someplausible alternative strategy might have been pursued. He need not show that itwould have necessarily been successful, but only that it was “a viable alternative.”Second, he must show that the alternative defense was inherently in conflict with ornot undertaken due to his counsel’s other loyalties.

2. Four women including defendant and co-defendant Hall had a confrontationwith a man, Wilson, at an apartment. Wilson left the apartment but when Hallthought that he had stolen her cell phone, the four women went after Wilson. As theywere leaving the apartment, defendant grabbed a knife. Hall then took the knife fromdefendant.

When the women caught up with Wilson, he tackled one of them and all fourstarted hitting and kicking him. While they were hitting and kicking Wilson,Defendant saw Hall stab him with the knife. Defendant told Hall to stop and tried tograb the knife away. The women then returned to the apartment. Wilson died frommultiple stab and incision wounds.

3. Defendant and Hall were represented by attorneys from the same clinic injoint but severed bench trials. Defendant’s counsel argued that she acted in self-defense because the women only attacked Wilson after he tackled one of them. Thecourt found defendant guilty of first degree murder.

On appeal, defendant argued that her attorneys labored under an actual conflictof interest where there was a plausible alternative defense based on lack ofaccountability, but since this defense was hostile to Hall’s defense, her attorneys couldnot pursue it and still maintain their loyalty to Hall. The Appellate Court rejected thisargument, relying on the Illinois Supreme Court’s decision in Echols, which held thatthe mere availability of an alternative strategy that would have helped defendant atthe expense of a co-defendant does not create a conflict of interest so long as there isa viable joint defense.

4. The Supreme Court held that the categorical rule of Echols was no longergood law. The rule does not consider whether the interests of co-defendants are at oddsin a case where there is a plausible alternative strategy that would help one client buthurt another. The Court thus overruled Echols.

5. But the Court affirmed defendant’s conviction finding that there was noplausible alternative strategy based on lack of accountability available in this case. Adefendant is legally accountable for another if she intends to promote or facilitate anoffense and aids or abets another in the planning or commission of the offenses. 720

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ILCS 5/5-2(c). Under the common-design rule, if two or more people engage in acommon criminal design, any acts in furtherance of the design are considered to be actsof all the parties. Thus a defendant may be accountable for first degree murder whereshe enters a common design to commit battery yet a murder is committed by anotherduring the course of the battery.

Here the four women had a common design to commit a criminal assault onWilson. Under Illinois law, when Hall suddenly stabbed Wilson during the attack,defendant was accountable for Hall’s acts under the common-design rule regardless ofwhether defendant told Hall to stop or grabbed the knife.

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People v. Peterson, 2017 IL 120331 (No. 120331, 9/21/17)

Defendant was convicted in a jury trial of the first degree murder of his third ex-wife, and was sentenced to 38 years imprisonment. At the time of his third ex-wife’sdeath, defendant was married to his fourth wife. At the time of the trial, defendant’sfourth wife was deceased.

A per se conflict of interest exists where facts about a defendant’s attorney’sstatus engender, by themselves, a disabling conflict. Per se conflicts of interest havebeen recognized in three situations, including where (1) defense counsel has a priorcontemporaneous association with the victim, the prosecution, or an entity assistingthe prosecution; (2) defense counsel contemporaneously represents a prosecutionwitness; or (3) defense counsel is a former prosecutor who was personally involved inprosecuting the defendant. Unless the defendant waives the right to conflict-freerepresentation, the existence of a per se conflict is grounds for automatic reversalwithout any showing that counsel’s performance was affected.

Under People v. Gacy, 125 Ill. 2d 117, 530 N.E.2d 1340 (1988), a per se conflictmay arise if defense counsel enters into a book deal about the case during the courseof the representation. The court found that there was no per se conflict of interest here,however, where defense counsel and defendant entered into a contract with a mediacompany which was to provide publicity and appearances for defendant and defensecounsel. A total of $15,900 was paid into defense counsel’s trust fund as a result of thecontract. The money was used to pay counsel’s fees and the costs of the defense. Thecontract ended some five months before trial.

The court distinguished Gacy on the ground that counsel’s participation in thecontract did not afford him a financial stake in the case that was directly adverse todefendant’s interests. The court also noted that the record was unclear as to the preciseterms of the contract, and that the proper forum to determine whether defense counselviolated any ethical rules was the Attorney Registration and Disciplinary Commission.

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People v. Reese, 2017 IL 120011 (No. 120011, 10/19/17)

Under Illinois Supreme Court Rule 401(a), before accepting a waiver of counselthe trial court must admonish a defendant of, among other things, the minimum andmaximum sentences he faces, including any consecutive sentences. The purpose of therule is to ensure that a waiver of counsel is knowing and intelligent. Strict compliancewith the rule is not required. A court substantially complies with the rule if the recordshows that the waiver was knowing and intelligent and the court’s admonitions did notprejudice defendant.

Here the trial court admonished defendant about the potential sentences hefaced, including that some of his sentences could run consecutively, and that twocharges alone carried a maximum potential sentence of 160 years. The court howeverfailed to admonish defendant that his sentences would run consecutively to his existingnatural life sentence for a previous murder conviction.

The Supreme Court held that the trial court substantially complied with Rule401(a). Defendant was informed that he faced “massive time” and the admonitions“surely impressed upon defendant the gravity of the potential punishments.” Thefailure to inform defendant that his potential sentences could run consecutive to hisnatural life sentence could not have affected his decision to waive counsel.


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People v. Wright, 2017 IL 119561 (No. 119561, 9/21/17)

Under Illinois Supreme Court Rule 401(a), the trial court shall not permit adefendant to waive counsel without first informing him of, among other things, theminimum and maximum sentence prescribed by law. Strict technical compliance withRule 401(a) is not always required. Instead, substantial compliance is sufficient if therecord indicates that defendant’s waiver was knowing and voluntary.

Here, the trial court incorrectly admonished defendant that the maximumsentence he faced was 60 years’ imprisonment rather than the correct 75-yearsentence. The Supreme Court nonetheless held that under the facts of this case, thetrial court substantially complied with Rule 401(a). The trial court properlyadmonished defendant in all respects except about the maximum sentence. Defendantwas 37 years old, had attended college for two years, and had previously representedhimself on appeal in a felony case. He repeatedly expressed his desire to representhimself from the beginning of the case, and the reason he wanted to go pro se - forspeedy trial reasons - had nothing to do with the maximum sentence.

The court also found that defendant was not prejudiced by the incorrectadmonishment. Defendant never alleged that he would not have waived counsel if hehad known the correct maximum sentence, and the sentence he received was only 50years imprisonment.


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EVIDENCE


Defendant was convicted in a jury trial of the first degree murder of his third ex-wife, and was sentenced to 38 years imprisonment. At the time of his third ex-wife’sdeath, defendant was married to his fourth wife. At the time of the trial, defendant’sfourth wife was deceased.

After finding that the forfeiture by wrongdoing doctrine was satisfied, the trialcourt permitted the State to admit several hearsay statements that had been made bydefendant’s third and fourth wives. The forfeiture by wrongdoing doctrine permits theadmission of hearsay statements where the declarant is unavailable for trial due toactions performed by the defendant with the intent of making the witness unavailableto testify.

1. At the time of trial, Illinois had two versions of the forfeiture by wrongdoingdoctrine. First, the common-law doctrine has been recognized by Illinois case law andcodified in Illinois Rule of Evidence 804(b)(5). The common law doctrine and Rule804(b)(5) permit the introduction of an absent witness’s statement where the defendantengaged in conduct designed to prevent the witness from testifying.

In addition, the legislature had enacted 725 ILCS 5/115-10.6, which allowed theadmission of hearsay where the defendant killed the declarant with intent to procurehis or her unavailability to testify, provided that there are sufficient safeguards ofreliability and the interests of justice would be served by admitting the evidence. Thetrial court admitted the statements of defendant’s former wives under §115-10.6.

2. The separation of powers doctrine of the Illinois Constitution provides that thelegislative, executive and judicial branches are separate and that no branch shallexercise powers properly belonging to another. Thus, each branch of government hasits own unique sphere of authority. The judicial article of the Illinois Constitution veststhe Supreme Court with general administrative and supervisory authority over allcourts, empowering it to promulgate procedural rules to facilitate the judiciary in thedischarge of its constitutional duties, including authority to regulate the trial of casesand govern the admission of evidence.

The separation of powers doctrine does not require a complete divorce betweenthe branches of government, however. Thus, although the Supreme Court isempowered to promulgate rules governing admission of evidence at trial, the GeneralAssembly may legislate in this area without offending the separation of powersdoctrine so long as legislative enactments do not create an irreconcilable conflict witha court rule. Where an irreconcilable conflict exists, the court rule prevails.

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3. The court concluded that §115-10.6 and Rule of Evidence 804(b)(5) contain anirreconcilable conflict, and that the statute must therefore give way to Rule 804(b)(5).Rule 804(b)(5) identifies only two criteria to be satisfied for the admission of relevanthearsay statements: (1) that the party against whom the statement is offered hasengaged or acquiesced in wrongdoing, and (2) that such wrongdoing was intended to,and did, procure the unavailability of the declarant as a witness.

By contrast, §115-10.6 applies only to cases involving the declarant’s murder andrequires the satisfaction of additional criteria concerning the reliability of thestatements and the interests of justice. The court found that an irreconcilable conflictwith Rule 804(b)(5) existed because the common law doctrine and Illinois case law holdthat the defendant forfeits his ability to challenge the reliability of the declarant’sstatements by the very act which prevents the declarant from testifying and becauserequiring additional indicia of reliability “would undermine the equitableconsiderations at the very center of the forfeiture by wrongdoing doctrine.”

4. However, the court concluded that the hearsay statements were admissibleunder the common law forfeiture by wrongdoing doctrine. The State’s burden of proofat a forfeiture by wrongdoing hearing is by a preponderance of the evidence. Thedefendant did not challenge the trial court’s finding that the State establishedwrongdoing where it showed by a preponderance of the evidence that defendantmurdered both his third and fourth wives. However, defendant challenged the trialcourt’s finding that the State established by a preponderance that he murdered the twowomen in order to make them unavailable as witnesses.

In rejecting defendant’s argument, the court reiterated that the common lawdoctrine of forfeiture by wrongdoing applies where the defendant intended to preventthe witness from testifying. However, it rejected defendant’s argument that to provesuch intent, the State must identify specific testimony from the absent witness whichthe defendant wished to prevent. In addition, the forfeiture by wrongdoing doctrinedoes not depend on the existence of a legal proceeding at the time defendant acts toprevent the witness from being available to testify or that a desire to make thedeclarant unavailable to testify is the defendant’s sole motivation in committing thecrime.

The Supreme Court concluded that the trial court did not abuse its discretionby finding that defendant murdered his third and fourth wives with the intent ofkeeping them from testifying at divorce proceedings or at defendant’s trial for murder.

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People v. Staake, 2017 IL 121755 (No. 121755, 11/30/17)

In order to raise an issue on appeal concerning the exclusion of evidence,defendant must make an adequate offer of proof in the trial court. The failure to makesuch an offer results in forfeiture of the issue.

The court held that the same rule applies where the trial court held that unlesscounsel presented a proffer of the supporting evidence, the defense would be barredfrom arguing that the cause of death was the decedent’s refusal to accept medicaltreatment. In the absence of an offer of proof or a proffer, the issue was forfeited.


Declarations against penal interest are an exception to the hearsay rule. An out-of-court statement is admissible if: (1) the declarant is unavailable; (2) the statementtends to subject him to civil or criminal liability; and (3) the statement is corroboratedby circumstances that clearly indicate its trustworthiness. Ill. R. Evid. 804(b)(3). Adeclarant who properly asserts his Fifth Amendment right not to testify is unavailablefor purposes of this rule.

Defendant, who represented himself during trial, made an offer of proof duringthe State’s case in chief that a detective would testify that codefendant said hecommitted the robbery with a BB gun. When defendant attempted to elicitcodefendant’s statement during cross-examination of the detective, the trial courtsustained the State’s objection. Later, at a hearing outside the jury’s presence,codefendant invoked his right not to testify. But following this invocation, defendantnever attempted to call the detective to elicit the statement.

The Supreme Court held that since defendant never made an attempt to elicitthe statement at trial following codefendant’s invocation of his right to silence, the trialcourt did not err in excluding the evidence. Although the court recognized that thisfailure may have occurred because defendant was pro se, once he made the decision torepresent himself he was held to the same standards as an attorney and could notcomplain about his lack of competency on appeal.


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GUILTY PLEAS

People v. Boykins, 2017 IL 121365 (No. 121365, 9/21/17)

1. Mandatory supervised release terms are statutorily mandated and are notsubject to plea bargaining. The State cannot offer to exclude the MSR term as part ofa plea negotiation, and the trial court has no authority to decline to impose an MSRterm when imposing sentence.

Supreme Court Rule 402(a)(2) and due process require that a defendant whopleads guilty must be informed by the trial court of the minimum and maximumsentences which apply to the offense for which a guilty plea is entered. Where theparties enter a negotiated plea for a specific sentence, therefore, the trial court mustadmonish defendant, before accepting the plea, that an MSR term will be added to thesentence. Where defendant bargains for a specific sentence and the trial court fails tostate that an MSR term will be added to the sentence, fundamental due process isviolated because defendant receives a more onerous sentence than that which wasbargained. People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005).

2. To ensure that defendants understand the consequences of their pleaagreements, trial judges are encouraged to explicitly link admonishments about MSRand negotiated sentences. In addition, admonishments concerning MSR should begiven when the judge reviews the terms of the plea agreement with defendant and theMSR term should be reiterated both at the sentencing and in the written judgement.

However, there is no precise formula for admonishing a defendant of his MSRobligation. An admonition is sufficient if an ordinary person in the defendant’ssituation would understand the judge’s statements as conveying the requiredinformation.

3. Before it accepted defendant’s guilty plea, the trial court informed defendantof the range of possibilities for first degree murder, including that the required prisonterm was between 20 and 60 years, that based on his prior record defendant could beimprisoned for life, and that upon his release from the penitentiary defendant wouldbe required to serve a three-year-term of mandatory supervised release. The courtconcluded that although the MSR term was not explicitly linked to the negotiated 22-year-sentence, an ordinary person in defendant’s circumstances would have understoodthat the penalty included three years of MSR following whatever term of imprisonmentthe trial court imposed. Thus, both due process and Rule 402(a)(2) were satisfied.

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People v. Brown, 2017 IL 121681 (No. 121681, 11/30/17)

1. The Sixth Amendment guarantees a criminal defendant the right to effectiveassistance of counsel at all critical stages of the criminal proceeding, including at aguilty plea proceeding. A claim that a guilty plea defendant was denied the effectiveassistance of counsel is governed by the Strickland test, which requires the defendantto establish that counsel’s performance fell below an objective standard ofreasonableness and caused prejudice.

To satisfy the prejudice requirement of Strickland, a guilty plea defendantmust show a reasonable probability that, but for counsel’s errors, he would havepleaded not guilty and insisted on going to trial. Where an ineffective assistance claiminvolves a matter of strategy related to the chances for acquittal, defendant is requiredto show that he would have been acquitted or would have had a viable defense at trial.Where the claim is related to defendant’s understanding of the consequences ofpleading guilty, however, the prejudice prong is satisfied where defendant shows thathad counsel informed him of the consequences of a guilty plea, it would have been arational decision to reject the plea bargain and go to trial.

2. Here, defendant could not show that it would have been rational for him toreject the plea bargain and go to trial. Defendant pleaded guilty to the Class X felonyof being an armed habitual criminal, in return for an 18-year sentence and dismissalof a home invasion charge which would have carried a mandatory 15-yearenhancement. The court concluded that given defendant’s significant criminal history,if he had been convicted after a trial his sentences for both armed habitual criminaland home invasion would have been toward the higher end of the authorizedsentencing range. Under these circumstances, it would not have been rational to rejectthe plea bargain providing a lower sentence even had his trial counsel correctlyinformed him that his armed habitual criminal conviction was subject to an 85% goodtime requirement (rather than 50%, as counsel believed). Because defendant could notshow that it would have been rational to reject the plea bargain, he failed to make anadequate showing of prejudice.

The trial court’s order dismissing defendant’s post-conviction petition at thesecond stage was affirmed.

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As part of a negotiated guilty plea agreement, defendant pled guilty to one countof aggravated unlawful use of weapons and in exchange the State nol-prossed the eightremaining counts. Years later defendant filed a 2-1401 petition for relief fromjudgment (735 ILCS 5/2-1401) seeking to vacate his conviction since it was void under

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Aguilar, 2013 IL 112116. The State conceded that Aguilar voided defendant’sconviction and filed a motion to reinstate some of the charges it had nol-prossed. Thecircuit court vacated defendant’s conviction and allowed him to withdraw his guiltyplea, but denied the State’s motion to reinstate the charges.

The Supreme Court, with one justice dissenting, held that the statute oflimitations barred the State from reinstating the nol-prossed charges. When a circuitcourt vacates a judgment and allows a defendant to withdraw his guilty plea, the casereturns to its status before the judgment was made. And generally the State may inthis situation ask the court to reinstate nol-prossed charges. But here the statute oflimitations constituted an absolute bar against reinstating the charges since the three-year limitations period had already run. 720 ILCS 5/3-5.

Although a statute of limitations period may be tolled, the court found noauthority for the State’s argument that it is tolled when a defendant successfullyvacates his conviction after the period of limitations has expired on charges that weredismissed as part of a plea agreement. The court specifically rejected the State’sargument that the “prosecution” against defendant was still pending and had notexpired because defendant’s case never had a final disposition on appeal. The courtrefused to read into the statute “exceptions, limitations, or conditions” that were notplainly spelled out.

The State was barred from reinstating the nol-prossed charges.

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HOMICIDE


1. Where new and additional charges arise from the same facts as the originalcharges and the State had knowledge of such facts at the time of the commencementof the prosecution, the speedy trial term on the new charges is the same as on theoriginal charges. Continuances obtained in connection with the original charges cannotbe attributed to the defendant with respect to the new and additional charges, becausethose charges were not before the court when the continuances were obtained.

The purposes of the rule that continuances on the original charge cannot beattributed to defendant on the new charge is to ensure adequate notice of thesubsequent charges and to prevent trial by ambush.

2. The court concluded that where defendant was charged with second degreemurder, a subsequent charge of first degree murder was not a new and additionalcharge for purposes of the speedy trial statute. Second degree murder is not a lessor

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included offense of first degree murder, but rather a lessor mitigated offense. Becausethe State is required to prove the elements of first degree murder before the trier of factcan consider whether there is a mitigating factor which will reduce the charge tosecond degree murder, first degree and second degree murder have the same elements.However, second degree has an additional mitigating factor.

Because the State must prove first degree murder to obtain a conviction forsecond degree murder, a defendant charged with second degree murder is on noticethat the State intends to prove the elements of first degree murder. Because the firstdegree murder charge added to the prosecution relates back to the original seconddegree murder charge, it is not a new offense. Therefore, delays attributable todefendant on the initial charge are also attributable to him on the subsequent charge.

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INDICTMENTS, INFORMATIONS, COMPLAINTS


As part of a negotiated guilty plea agreement, defendant pled guilty to one countof aggravated unlawful use of weapons and in exchange the State nol-prossed the eightremaining counts. Years later defendant filed a 2-1401 petition for relief fromjudgment (735 ILCS 5/2-1401) seeking to vacate his conviction since it was void underAguilar, 2013 IL 112116. The State conceded that Aguilar voided defendant’sconviction and filed a motion to reinstate some of the charges it had nol-prossed. Thecircuit court vacated defendant’s conviction and allowed him to withdraw his guiltyplea, but denied the State’s motion to reinstate the charges.

The Supreme Court, with one justice dissenting, held that the statute oflimitations barred the State from reinstating the nol-prossed charges. When a circuitcourt vacates a judgment and allows a defendant to withdraw his guilty plea, the casereturns to its status before the judgment was made. And generally the State may inthis situation ask the court to reinstate nol-prossed charges. But here the statute oflimitations constituted an absolute bar against reinstating the charges since the three-year limitations period had already run. 720 ILCS 5/3-5.

Although a statute of limitations period may be tolled, the court found noauthority for the State’s argument that it is tolled when a defendant successfullyvacates his conviction after the period of limitations has expired on charges that weredismissed as part of a plea agreement. The court specifically rejected the State’sargument that the “prosecution” against defendant was still pending and had notexpired because defendant’s case never had a final disposition on appeal. The courtrefused to read into the statute “exceptions, limitations, or conditions” that were notplainly spelled out.

The State was barred from reinstating the nol-prossed charges.

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2. The court concluded that where defendant was charged with second degreemurder, a subsequent charge of first degree murder was not a new and additionalcharge for purposes of the speedy trial statute. Second degree murder is not a lessorincluded offense of first degree murder, but rather a lessor mitigated offense. Becausethe State is required to prove the elements of first degree murder before the trier of factcan consider whether there is a mitigating factor which will reduce the charge tosecond degree murder, first degree and second degree murder have the same elements.However, second degree has an additional mitigating factor.

Because the State must prove first degree murder to obtain a conviction forsecond degree murder, a defendant charged with second degree murder is on noticethat the State intends to prove the elements of first degree murder. Because the firstdegree murder charge added to the prosecution relates back to the original seconddegree murder charge, it is not a new offense. Therefore, delays attributable todefendant on the initial charge are also attributable to him on the subsequent charge.

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A defendant may challenge an indictment if the State deliberately orintentionally misleads the grand jury, uses perjured or false testimony, or presentsother deceptive or inaccurate evidence. To warrant dismissal of the indictment, adefendant must show that the State’s improper actions prevented the grand jury fromreturning a meaningful indictment.

A detective testified before the grand jury that defendant and codefendantcommitted a robbery with a handgun. He also testified that codefendant was able todispose of the weapon, which was never recovered. The trial evidence showed that aweek after the robbery, the police recovered a BB gun in the street where one of thedefendants had been fleeing after the robbery. The BB gun had no fingerprints.

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Defendant argued that the detective presented deceptive evidence to the grandjury by failing to disclose the recovery of the BB gun, and that without this deceptionthe grand jury may not have indicted defendant. The court held that the State did notprevent the grand jury from returning a meaningful indictment. There was no evidencethat the BB gun was used in the commission of the offense and thus the detective’stestimony was not false.


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JURY

People v. Sebby, 2017 IL 119445 (No. 119445, 6/2/17)

1. There are two kinds of plain error: (1) when a clear error occurs and theevidence is so closely balanced that the error alone threatened to tip the scales ofjustice against the defendant, regardless of the seriousness of the error; and (2) whena clear error occurs and the error is so serious that it affected the fairness of thedefendant’s trial and challenged the integrity of the judicial process, regardless of thecloseness of the evidence.

Under the first prong of plain error, if the evidence is closely balanced, prejudiceis not presumed; the error is actually prejudicial. A defendant who has shown clearerror and closely balanced evidence has shown prejudice and is entitled to relief. Indetermining whether the evidence was closely balanced, a reviewing court mustevaluate the totality of the evidence and conduct a qualitative, commonsenseassessment of the evidence within the context of the case.

Defendant was convicted of resisting a peace officer following a jury trial. In a4-3 decision, the Illinois Supreme Court held that the trial court’s failure to complywith Rule 431(b) constituted plain error under the first prong of the plain erroranalysis.

2. The parties agreed that the trial court violated Illinois Supreme Court Rule431(b), which requires the court to ask potential jurors whether they “understand andaccept” the four Zehr principles: (1) defendant is presumed innocent; (2) the Statemust prove defendant guilty beyond a reasonable doubt; (3) defendant does not haveto offer any evidence on his behalf; and (4) if defendant does not testify it cannot beheld against him. Here the trial court asked jurors whether they “had any problemswith” or “believed in” the Zehr principles. The Illinois Supreme Court held that thiswas clear error.

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3. The court also held that the evidence was closely balanced. Both sidespresented a plausible version of events concerning the issue of whether defendantknowingly resisted the performance of a known police officer’s authorized acts andwhether that violation was the proximate cause of injury to the officer. 720 ILCS 5/31-1(a), (a-7). The testimony of the State’s witnesses was largely consistent, but so was thetestimony of the defense witnesses. Neither side presented accounts that were fanciful.The outcome of the case thus turned on how the trier of fact resolved a contest ofcredibility. And since both sides were credible, the evidence was closely balanced.

Since there was clear error and the evidence was closely balanced, defendantestablished plain error under the first prong. The court rejected the State’s argumentthat the closeness of the evidence is only one consideration in deciding whether therewas prejudice. The State’s argument would impermissibly add the seriousnessrequirement of the second prong onto the closeness requirement of the first prong to“yield a hybrid requirement.” The State’s argument ignores the fact that “prejudicerests not upon the seriousness of the error but upon the closeness of the evidence.” Anerror is prejudicial when it occurs in a close case because its impact on the result ispotentially dispositive.

The court reversed defendant’s conviction and remanded for a new trial.


It is the burden of the party seeking a specific instruction to present it to thecourt and request that it be given to the jury. Generally, the court must sua sponteoffer an instruction only where the jury is being instructed on the elements of theoffense, the presumption of innocence, or the burden of proof.

Defendant argued on appeal that the trial court should have sua sponteinstructed the jury on the definition of a firearm and that a BB gun is not a firearm.The Supreme Court disagreed. Contrary to the position defendant took on appeal, attrial he objected to any instructions about the lesser offense of robbery and maintainedthat he was not involved in the offense at all. Under these circumstances, the trialcourt had no duty to sua sponte instruct the jury about the definition of a firearm.


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JUVENILE

In re Destiny P., 2017 IL 120796 (No. 120796, 10/19/17)

1. The equal protection clause guarantees that similarly situated individualswill be treated in a similar fashion unless there is an appropriate reason to treat themdifferently. The equal protection clause does not forbid the legislature from drawingdistinctions between different categories of people, but prohibits doing so on the basisof criteria that is wholly unrelated to the legislation’s purpose.

Unless fundamental rights are at issue, rational basis scrutiny is applied toequal protection analysis. Under this standard, legislation does not violate the equalprotection clause if any set of facts can be rationally conceived to justify theclassification.

As a threshold matter in addressing an equal protection claim, the court mustascertain whether the individual is similarly situated to the comparison group. Twoclasses are similarly situated only if they are alike in all relevant respects. In makingthis determination, the court must consider the purpose of the particular legislation.

2. The minor argued that she was denied equal protection because, as a firsttime juvenile offender charged with first degree murder, she did not have the right toa jury trial although recidivist juvenile offenders charged as violent juvenile offenders(with two serious violent offenses) and habitual juvenile offenders (three seriousoffenses) both enjoy the right to jury trials. The Supreme Court concluded that theclasses were not similarly situated because violent juvenile offenders and habitualjuvenile offenders are: (1) charged with crimes other than first degree murder, and (2)face higher sentences under statutes which have the legislative purpose of imposingmore severe punishment on recidivist offenders who have little to gain from therehabilitative aspects of the Juvenile Court Act.

Because the legislature had a rational basis for providing criminal-typeprocedures to such recidivist offenders, the distinctions between the classes are notbased on criteria wholly unrelated to the purpose of the legislation. Therefore, equalprotection was not violated.

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In re Jarquan B., 2017 IL 121483 (No. 121483, 11/8/17)

Under section 5-720(4) of the Juvenile Court Act, when a minor’s probation isrevoked the court may impose any “sentence that was available under Section 5-710at the time of the initial sentence.” 705 ILCS 405/5-720(4). At the time defendant wasinitially sentenced in this case, section 5-710(1)(b) allowed a court to commit a minor

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to the Department of Juvenile Justice if adults found guilty of the same offense couldbe sentenced to incarceration. 705 ILCS 405/5-710(1)(b). On January 1, 2016, section5-710(1)(b) was amended to preclude a court from committing a minor to the DJJunless the minor had committed a felony.

Defendant pled guilty to a Class A misdemeanor on February 26, 2015, and wassentenced to 12 months of supervision. After a series of violations, the court revokeddefendant’s supervision and sentenced him to six months of probation on November 5,2015. Defendant admitted he violated his probation at a hearing on November 17,2015. The sentencing hearing was continued until April 26, 2016, where the courtcommitted defendant to the DJJ.

On appeal, defendant argued that because of the amendment to section 5-710(1)(b), the trial court could no longer commit him to the DJJ for a misdemeanoroffense. The Supreme Court disagreed. It held that the plain language of section 5-720(4) focused on the sentences available at the time defendant was initiallysentenced. At the time defendant was initially sentenced in this case, commitment tothe DJJ was an option for misdemeanor convictions that were punishable byimprisonment. Accordingly, the trial court properly committed defendant to the DJJ.

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People v. Fort, 2017 IL 118966 (No. 118966, 2/17/17)

705 ILCS 405/5-130(1)(a) provides that a minor who is at least 15 at the time ofthe offense and who is charged with first degree murder, aggravated criminal sexualassault, aggravated battery with a firearm where the minor personally discharged afirearm, armed robbery committed with a firearm, or aggravated vehicular highjackingcommitted with a firearm is to be tried as an adult. In addition, “all other chargesarising out of the same incident shall be prosecuted” in criminal court. §5-130(1)(a).

If after the trial or plea the trial court finds that the minor committed one of theautomatic transfer offenses or another charged offense arising from the same incident,adult sentencing is available. 705 ILCS 405/5-130(1)(c)(I). However, if the minor isconvicted only of an uncharged offense, he or she is to be sentenced under the JuvenileCourt Act unless the State requests a hearing for the purpose of sentencing as an adultand the trial court grants that motion. 705 ILCS 405/5-130(1)(c)(ii).

Here, defendant was tried in adult court on a charge of first degree murder. Thetrial court convicted of second degree murder based on the mitigating factor of anunreasonable belief in self-defense. Although defendant was a minor, the State did notfile a written motion requesting adult sentencing. Similarly, defendant did not objector argue at the time of sentencing that he should have been sentenced as a juvenile.Instead, defendant received an adult sentence of 18 years.

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1. As a matter of plain error, the Supreme Court found that defendant shouldhave been sentenced under the Juvenile Court Act. The plain language of 705 ILCS405/5-130(1)(c)(ii) states that if the minor is tried on automatic transfer offenses butis convicted only of an uncharged, non-automatic transfer offense, sentencing is underthe Juvenile Court Act unless the State successfully moves for adult sentencing. Thecourt noted that the legislature had good reason to limit adult sentencing only tocharged offenses - to prevent the State “from overcharging a minor defendant in orderto secure an adult sentence where the evidence does not support a finding of the moreserious charge.”

2. Because defendant was charged and tried for first degree murder but was notcharged with second degree murder, second degree murder did not qualify as “anothercharge arising out of the same incident” as the charged offense. Thus, the seconddegree murder conviction was not covered by the adult sentencing provision of §5-130(1)(a). In the absence of a request by the State for adult sentencing, therefore, theadult sentence is not authorized by the statute and must be vacated.

3. The court rejected the State’s argument that because second degree murderis a “lesser mitigated offense” of first degree murder and requires a finding of amitigating factor which reduces the offense of first degree murder, the State proved theelements of first degree murder. The court stressed that a person convicted of seconddegree murder is convicted only of that offense, and is not also convicted of first degreemurder. Because the only conviction was for second degree murder, an unchargedoffense that is not an automatic transfer offense, juvenile sentencing was required.

Because neither the trial court nor the parties appeared to have been aware thatdefendant should have been sentenced as a minor, the court found that the properremedy was to remand the case to the trial court with instructions to vacatedefendant’s sentence and allow the State to file a petition requesting a hearing foradult sentencing. Should the trial court find at the hearing that defendant is notsubject to adult sentencing, the proper remedy is discharge because defendant is over21 and may no longer be committed as a juvenile.

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People v. Holman, 2017 IL 120655 (No. 120655, 9/21/17)

1. Under the Eighth Amendment prohibition of cruel and unusual punishment,criminal punishment must be proportioned to both the offender and the offense. Thus,the Eighth Amendment prohibits mandatory life sentences for juveniles who commitmurder. Miller v. Alabama, 567 U.S. 460 (2012) Miller is based on the concept thatjuveniles are less mature and responsible than adults and more vulnerable to negativeinfluence and peer pressure.

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In addition, because juveniles are more malleable than adults, criminal activityby juveniles is less indicative of irretrievable depravity than is generally the case withadults. The Miller court concluded that the constitution requires a sentencing processwhich considers an offender’s youth and characteristics before a sentence of lifeimprisonment without the possibility of parole can be imposed.

2. Although other jurisdictions have reached differing conclusions, the SupremeCourt found that in Illinois any life sentence imposed on a juvenile, whethermandatory or discretionary, violates the Eighth Amendment unless the trial courtconsidered youth and its attendant characteristics. Thus, an Illinois court maysentence a juvenile defendant to life without parole only if the minor’s conduct showsirretrievable depravity, permanent incorrigibility, or irreparable corruption beyond thepossibility of rehabilitation.

In making this determination, the trial court must consider: (1) defendant’syouth and attendant circumstances including chronological age, any evidence ofparticular immaturity, impetuosity, and failure to appreciate risks and consequences,(2) defendant’s family and home environment, (3) the degree of defendant’sparticipation in the offense and any evidence of familial or peer pressures that mayhave affected him, (4) defendant’s incompetence, including his inability to deal withpolice officers or prosecutors or his own attorneys, and (5) defendant’s prospects forrehabilitation.

3. Where before Miller was decided defendant received a discretionary lifesentence without the possibility of parole, whether a Miller violation occurred dependson whether the trial court considered evidence of defendant’s youth at the originalsentencing hearing. Where the trial court stated that it had considered the evidenceat trial and the pre-sentence report, it was aware of defendant’s age, and it heard someevidence concerning defendant’s mental problems and family background, the trialcourt sufficiently considered defendant’s youth-related characteristics to comply withMiller.

4. The court rejected amicus curiae’s argument that life sentences for juvenilesshould be prohibited in all cases, holding that the question is for the legislature ratherthan the courts.

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People v. Hunter & Wilson, 2017 IL 121306 (Nos. 121306 & 121345 cons., 11/30/17)

1. An amendment to the statute changing the requirements for the automatictransfer of juveniles to adult court (705 ILCS 405/5-130), which went into effect afterdefendant Hunter had been convicted but while his case was pending on direct appeal,was held not to apply retroactively to defendant’s case. Section 4 of the Statute on

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Statutes (5 ILCS 70/4) allows the application of procedural changes in the law to beapplied retroactively to ongoing proceedings. It also requires that “the proceedingsthereafter” shall conform to the laws in force at the time of the proceedings in question.In defendant’s case, the proceedings in the trial court were completed before thetransfer statute was amended. Because the proceedings were completed, the amendedstatute does not apply retroactively to defendant’s case.

2. An amendment allowing a trial court to decline to impose firearmenhancements in sentencing defendants under the age of 18 (730 ILCS 5/5-4.5-105),which went into effect after defendants had been convicted but while their cases werepending on direct appeal, was held not to apply retroactively to defendants’ cases.Under section 4 of the Statute on Statutes (5 ILCS 70/4), a punishment mitigated bya new law is applicable only to judgments imposed after the new law takes effect. Sincedefendants were sentenced before the new law went into effect, the amendment doesnot apply retroactively to their cases.

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PAROLE, PARDONS & PRISONERS RIGHTS

Round v. Lamb, 2017 IL 122271 (No. 122271, 8/3/17)

Defendant pleaded guilty to harassment of a witness and violation of an orderof protection. He was sentenced to five years imprisonment and two years of mandatorysupervised release for harassment of a witness (a Class 2 felony), and three yearsimprisonment and a four-year-MSR term on the Class 4 felony of violation of an orderof protection. Although the latter conviction was a lower class felony, 730 ILCS 5/5-8-1(d)(6) requires a four-year-MSR term for violating an order of protection. The MSRterm for the Class 4 felony was not mentioned during plea negotiations, the sentencinghearing, or in the written sentencing order.

Within six months of his initial commitment to DOC, defendant learned that theDepartment interpreted the Class 4 sentence as including a four-year MSR term.Defendant challenged the mandatory MSR term by filing a §2-1401 petition, which wasrecharacterized as a post-conviction petition. At the post-conviction hearing, the trialcourt acknowledged that it had failed to inform defendant of the four-year MSR termon the Class 4 conviction and offered to allow defendant to withdraw his pleas to bothcounts. Defendant declined to withdraw the pleas and filed a notice of appeal. Despitereceiving several extensions of time, defendant failed to file a brief in the AppellateCourt.

Defendant completed the three-year sentence for violation of an order ofprotection on September 23, 2014 and the five-year sentence for harassment of awitness on September 23, 2015. However, he was “violated at the door” on the two-year

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MSR term because he was unable to find a suitable host site for electronic monitoring.Although he completed the two-year MSR period on the Class 2 felony on December 23,2016, he was not released because DOC asserted that as a matter of law the sentencefor the Class 4 felony of violating an order of protection included a mandatory four-yearMSR term, which did not begin until the five-year prison sentence on the Class 2 felonywas completed.

After he completed the two-year MSR term on the Class 2 felony, defendant filedan emergency motion in the Illinois Supreme Court for an order of habeas corpus or inthe alternative a writ of mandamus. The motion argued that because defendant hadcompleted the only MSR term imposed by the trial judge, he was entitled to immediaterelease.

1. The Supreme Court concluded that although Public Act 97-531 amended 730ILCS 5/5-8-1 to require the trial court to include an MSR term in the writtensentencing order, that requirement is directory rather than mandatory. Thus, theabsence of an MSR term in the sentencing order does not invalidate the sentence.Instead, an MSR term is included in the sentence as a matter of law.

2. Because it would be illogical to have a prisoner simultaneously serve a prisonterm and mandatory supervised release, an inmate cannot begin to serve an MSR termon any sentence until the prison terms on all convictions are completed. Mandatorysupervised release is designed to facilitate reintegration back into society, a purposewhich is distinct from serving time in prison. Thus, the fact that defendant wasviolated at the door on the first MSR term, and consequently must serve the MSR termon that offense in prison, did not change the fact that the prison terms on otherconvictions must be completed before any MSR terms can commence.

3. The court rejected the argument that enforcing a four-year MSR term wouldviolate due process because the guilty plea agreement contemplated five years inprison and a two-year MSR term, and a four-year MSR term applied as a matter of lawwould extend the time in custody to nine years. The court noted that defendant hadbeen given an opportunity to withdraw his guilty pleas just five months after thesentencing hearing, before he had substantially performed his part of the bargain. Inaddition, defendant filed a notice of appeal but failed to file a brief in the AppellateCourt. “In light of these facts,” defendant “has not proven that he has the right to havehis sentence reconfigured.”

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PROSECUTOR

People v. Ringland, Saxen, et al, 2017 IL 119484 (No. 119484, 6/29/17)

1. 55 ILCS 5/3-9005(b) provides that the State’s Attorney is authorized toappoint special investigators to serve subpoenas, make return of process, and conductinvestigations which assist the State’s Attorney in the performance of his or her duties.In addition, State’s Attorneys have both the specified powers and duties listed by 55ILCS 5/3-9005(a)(11) and common-law powers and duties vested by the Illinoisconstitution.

Generally, Illinois common law recognizes that a State’s Attorney has anaffirmative duty to investigate and determine whether an offense has been committed.That duty is subject to a significant limitation, however, because the State’s Attorneyordinarily defers to law enforcement agencies to investigate criminal acts. Thus, theState’s Attorney has a common law duty to affirmatively investigate suspected illegalactivity only if the possible offense is not being adequately investigated by otheragencies or a law enforcement agency asks the State’s Attorney for assistance.

2. The court concluded that the LaSalle County State’s Attorney erred bycreating a State’s Attorney Felony Enforcement (SAFE) unit for the purpose ofpatrolling interstates in LaSalle County, making traffic stops, and issuing tickets forsuspected controlled substance offenses. Although the State’s Attorney testified at thesuppression hearing concerning the creation of the unit, he did not claim that any lawenforcement agency was deficient in investigating suspected controlled substanceoffenses on LaSalle County interstates. Similarly, the State’s Attorney did not statethat he had received requests for assistance from any law enforcement agencies. Thecourt also noted the trial court’s finding that the SAFE unit was not following up oncases initiated by law enforcement agencies, but “actually going out and seekingcomplaints by making petty traffic stops and petty offenses.”

The court rejected the State’s argument that the SAFE unit was permittedbecause §5/3-9005(b) authorizes special investigators to conduct investigations whichassist the State’s Attorney in the performance of his or her duties. Because a State’sAttorney could claim a common law duty to investigate all crimes and authorize specialinvestigators to conduct investigations into all illegal activity, the State’s argumentwould allow the formation of 102 county police forces, each directed by a State’sAttorney, and render superfluous the three statutory functions of State’s Attorney’sspecial investigators. The court concluded that the legislature did not intend toauthorize county police forces operating at the behest of each State’s Attorney.

The court concluded that it need not address several issues, including whether:(1) the common law would allow State’s Attorney’s investigators to patrol highways toseek out offenses if there had been a request for assistance or a finding that other lawenforcement agencies were inadequately dealing with suspected criminal activity, and

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(2) the impropriety of an investigator’s appointment would justify suppression ofevidence that had been seized by that investigator.

Because the LaSalle County State’s Attorney’s SAFE unit was unauthorized byIllinois law where there was no showing that law enforcement agencies wereinadequately investigating controlled substance offenses or that any law enforcementagency had asked the State’s Attorney for assistance, the trial court’s order grantingdefendant’s motion to suppress was affirmed.

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REASONABLE DOUBT


Evidence that a witness was consuming alcohol near the time of the event shetestifies about is probative of her sensory capacity and affects the weight given to hertestimony. But the fact that a witness was drinking does not necessarily preclude thetrier of fact from finding her credible.

Defendant argued that the State failed to prove his guilt beyond a reasonabledoubt since the victim, who had consumed a pint of whiskey and 40 ounces of beer, wasso intoxicated at the time of the offense that she could not even remember beingstabbed in the chest by defendant.

The court rejected this argument, holding that the jury was well-aware of howmuch alcohol the victim consumed. Her credibility was properly a question for the jurywhich had the opportunity to view her testimony at trial.


People v. Way, 2017 IL 120023 (No. 120023, 4/20/17)

A person commits driving under the influence when she drives a vehicle andthere is any amount of cannabis in her system. 625 ILCS 5/11-501(a)(6). A personcommits aggravated DUI when she violates the DUI statute, is involved in a motorvehicle accident that causes great bodily harm to another, and “the violation was aproximate cause of the injuries.” 625 ILCS 5/11-501(d)(1)(c). Aggravated DUI is a strictliability offense and does not require any proof of impairment; it only requires a causallink between the physical act of driving and the injuries to another person.

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Defendant was driving her car while she had cannabis in her system. Shestarted to fall asleep at the wheel and drove her car into oncoming traffic, strikinganother car and causing great bodily harm to the passengers. There was no evidencethat she was impaired. The trial court found her guilty of aggravated DUI and wouldnot allow her to present the testimony of her physician that defendant had low bloodpressure and it was possible that the loss of consciousness was caused by this conditionand not by any drug.

The Supreme Court held that nothing in the framework of the DUI statuteprevents a defendant from raising as an affirmative defense that the collision resultingin serious bodily injury was caused solely and exclusively by a sudden unforeseeablemedical condition that rendered the defendant incapable of controlling the vehicle. Adefendant who raises this affirmative defense bears the burden of showing that theunforseen condition constituted the sole proximate cause of the accident and theinjuries.

Here defendant’s physician could not have testified that defendant’s low bloodpressure was the sole cause of her falling asleep or losing consciousness, only that itwas a possibility. Defendant was thus unable to show that her medical condition wasthe sole proximate cause of the collision.


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ROBBERY


A defendant commits vehicular hijacking when he takes a motor vehicle froma person or the immediate presence of a person by the use or threat of force. 720 ILCS5/18-3(a).

Defendant entered a bus through open doors, stood over the driver with a knifein his hand, and ordered the driver to drive the bus or he would stab him. The driverdrove the bus a short distance and then struggled with defendant, who eventually ranout of the bus. Defendant was convicted of aggravated vehicular invasion. On appeal,defendant argued that the evidence failed to show he committed vehicular invasionbecause he merely commandeered the bus, but never took it from the driver.

The Supreme Court held that the offense of vehicular invasion includessituations where the defendant exercises control over a vehicle by threatening thedriver with force. The court noted that a victim may be subject to a greater risk ofviolence if he remains in the vehicle with the defendant. Given that greater risk of

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harm, vehicular hijacking includes the forceful taking of a vehicle while the driverremains inside.

Defendant’s actions of threatening the bus driver with a knife and ordering himto drive “fall squarely within the conduct prohibited by the vehicular hijackingstatute.” Defendant’s conviction was affirmed.


To prove armed robbery with a firearm, the State must prove that defendantwas armed with a device designed to expel a projectile by action of an explosion,expansion of gas, or escape of gas. 720 ILCS 5/18-2(a)(2); 430 ILCS 65/1.1. Thedefinition of firearm specifically excludes any pneumatic, spring, paint ball, or BB gun.

Here, a witness with experience firing guns testified that codefendant told him“this is a robbery” and showed him what “looked like” a black semi-automatic gun. Thewitness was 100% certain it was an actual firearm. He also testified that he later felt“something sharp,” like the barrel of a gun, against his back. Another witness testifiedthat codefendant told her she was being robbed and she saw the handle of a gun. Athird witness testified he had seen guns before and believed codefendant’s gun was anine millimeter pistol.

The Supreme Court held that this evidence, when viewed in the light mostfavorable to the State, was enough to prove defendant guilty of armed robbery with afirearm. The court held that this evidence “was not so unreasonable, improbable, orunsatisfactory that no rational trier of fact could have found” defendant guilty.


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SEARCH AND SEIZURE

People v. Ringland, Saxen, et al, 2017 IL 119484 (No. 119484, 6/29/17)

1. 55 ILCS 5/3-9005(b) provides that the State’s Attorney is authorized toappoint special investigators to serve subpoenas, make return of process, and conductinvestigations which assist the State’s Attorney in the performance of his or her duties.In addition, State’s Attorneys have both the specified powers and duties listed by 55ILCS 5/3-9005(a)(11) and common-law powers and duties vested by the Illinoisconstitution.

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Generally, Illinois common law recognizes that a State’s Attorney has anaffirmative duty to investigate and determine whether an offense has been committed.That duty is subject to a significant limitation, however, because the State’s Attorneyordinarily defers to law enforcement agencies to investigate criminal acts. Thus, theState’s Attorney has a common law duty to affirmatively investigate suspected illegalactivity only if the possible offense is not being adequately investigated by otheragencies or a law enforcement agency asks the State’s Attorney for assistance.

2. The court concluded that the LaSalle County State’s Attorney erred bycreating a State’s Attorney Felony Enforcement (SAFE) unit for the purpose ofpatrolling interstates in LaSalle County, making traffic stops, and issuing tickets forsuspected controlled substance offenses. Although the State’s Attorney testified at thesuppression hearing concerning the creation of the unit, he did not claim that any lawenforcement agency was deficient in investigating suspected controlled substanceoffenses on LaSalle County interstates. Similarly, the State’s Attorney did not statethat he had received requests for assistance from any law enforcement agencies. Thecourt also noted the trial court’s finding that the SAFE unit was not following up oncases initiated by law enforcement agencies, but “actually going out and seekingcomplaints by making petty traffic stops and petty offenses.”

The court rejected the State’s argument that the SAFE unit was permittedbecause §5/3-9005(b) authorizes special investigators to conduct investigations whichassist the State’s Attorney in the performance of his or her duties. Because a State’sAttorney could claim a common law duty to investigate all crimes and authorize specialinvestigators to conduct investigations into all illegal activity, the State’s argumentwould allow the formation of 102 county police forces, each directed by a State’sAttorney, and render superfluous the three statutory functions of State’s Attorney’sspecial investigators. The court concluded that the legislature did not intend toauthorize county police forces operating at the behest of each State’s Attorney.

The court concluded that it need not address several issues, includingwhether:(1) the common law would allow State’s Attorney’s investigators to patrolhighways to seek out offenses if there had been a request for assistance or a findingthat other law enforcement agencies were inadequately dealing with suspectedcriminal activity, and (2) the impropriety of an investigator’s appointment wouldjustify suppression of evidence that had been seized by that investigator.

Because the LaSalle County State’s Attorney’s SAFE unit was unauthorized byIllinois law where there was no showing that law enforcement agencies wereinadequately investigating controlled substance offenses or that any law enforcementagency had asked the State’s Attorney for assistance, the trial court’s order grantingdefendant’s motion to suppress was affirmed.

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SENTENCING

People v. Holman, 2017 IL 120655 (No. 120655, 9/21/17)

1. Under the Eighth Amendment prohibition of cruel and unusual punishment,criminal punishment must be proportioned to both the offender and the offense. Thus,the Eighth Amendment prohibits mandatory life sentences for juveniles who commitmurder. Miller v. Alabama, 567 U.S. 460 (2012) Miller is based on the concept thatjuveniles are less mature and responsible than adults and more vulnerable to negativeinfluence and peer pressure.

In addition, because juveniles are more malleable than adults, criminal activityby juveniles is less indicative of irretrievable depravity than is generally the case withadults. The Miller court concluded that the constitution requires a sentencing processwhich considers an offender’s youth and characteristics before a sentence of lifeimprisonment without the possibility of parole can be imposed.

2. Although other jurisdictions have reached differing conclusions, the SupremeCourt found that in Illinois any life sentence imposed on a juvenile, whethermandatory or discretionary, violates the Eighth Amendment unless the trial courtconsidered youth and its attendant characteristics. Thus, an Illinois court maysentence a juvenile defendant to life without parole only if the minor’s conduct showsirretrievable depravity, permanent incorrigibility, or irreparable corruption beyond thepossibility of rehabilitation.

In making this determination, the trial court must consider: (1) defendant’syouth and attendant circumstances including chronological age, any evidence ofparticular immaturity, impetuosity, and failure to appreciate risks and consequences,(2) defendant’s family and home environment, (3) the degree of defendant’sparticipation in the offense and any evidence of familial or peer pressures that mayhave affected him, (4) defendant’s incompetence, including his inability to deal withpolice officers or prosecutors or his own attorneys, and (5) defendant’s prospects forrehabilitation.

3. Where before Miller was decided defendant received a discretionary lifesentence without the possibility of parole, whether a Miller violation occurred dependson whether the trial court considered evidence of defendant’s youth at the originalsentencing hearing. Where the trial court stated that it had considered the evidenceat trial and the presentence report, it was aware of defendant’s age, and it heard someevidence concerning defendant’s mental problems and family background, the trialcourt sufficiently considered defendant’s youth-related characteristics to comply withMiller.

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4. The court rejected amicus curiae’s argument that life sentences for juvenilesshould be prohibited in all cases, holding that the question is for the legislature ratherthan the courts.

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SEX OFFENSES

People v. Howard, 2017 IL 120443 (No. 120443, 3/23/17)

720 ILCS 5/11-9.3(b) provides that it is unlawful for a child sex offender to“knowingly loiter within 500 feet of a school building or real property comprising anyschool while persons under the age of 18 are present.” As it applies here, the term“loiter” is defined as “[s]tanding, sitting idly, whether or not the person is in a vehicle,or remaining in or around school or public park property.” 720 ILCS 5/11-9.3(d)(11).

Defendant, a convicted sex offender, was convicted of violating §9-3(b) for sittingin a car that was parked within 500 feet of an elementary school while children werepresent. Defendant stated that he took a friend to the school so she could drop offlunches to her grandchildren, who were students. He then parked on a street in frontof the school waiting for his friend to return. Defendant challenged §9.3(b) on theground that the definition of “loiter” was unconstitutionally vague. Defendant alsocontended that he was not “sitting idly” where he was waiting for his passenger toreturn and that the terms “standing” and “remaining” apply only to persons on foot andnot to persons who are sitting in a vehicle.

1. A statute is unconstitutionally vague as applied if its terms are so ill-definedthat the ultimate decision as to its meaning rests on the opinion and whims of the trierof fact rather than on any objective criteria. Principles of due process require that acriminal statute give a person of ordinary intelligence a reasonable opportunity toknow what is prohibited, so he may act accordingly.

2. The court concluded that the statutory definition of “loitering” is notunconstitutionally vague. First, the terms “standing” and “remaining” apply to personswho are sitting in a vehicle as well as to those who are on foot. Second, passing througha school zone, or even dropping off a passenger and then leaving, is clearly not“remaining.” By contrast, it is obvious that dropping off a passenger at a school andthen parking within 500 feet does constitute “remaining.” Here, defendant “loitered”by parking his car near the school and “remaining” in the school zone while waiting forhis friend to return and while children under the age of 18 were present.

3. The court rejected defendant’s argument that to satisfy constitutionalconcerns, a crime defined as remaining must include an improper purpose or requirethat the defendant committed an overt act. The court noted that the statute applies

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only to convicted sex offenders and prohibits remaining in a specific place, regardlessof the reason. Under these circumstances, neither an improper purpose nor overt actis constitutionally required.


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People v. Pearse, 2017 IL 121072 (No. 121072, 3/23/17)

Section 3(a) of the Sex Offender Registration Act requires a sex offender toregister where he resides or is temporarily domiciled for three or more days during anycalendar year. 730 ILCS 150/3(a). Section 3(b) states that a sex offender shall registerwithin three days of establishing a residence or temporary domicile, “regardless of anyinitial, prior, or other registration.” 730 ILCS 150/3(b). Section 2(I) of the Act defines“fixed residence” as any place where a sex offender resides for five or more days in acalendar year. 730 ILCS 150/2(I).

Defendant, a convicted sex offender, lived in an apartment in Belvidere, Illinois,and properly registered it as his residence. At some point he was admitted to a hospitalin Belvidere after a suicide threat. He was later transferred to a hospital in ForestPark, Illinois. At that hospital, a Forest Park police officer filled out and defendantsigned a registration form listing the hospital as defendant’s resident address anddefendants’ apartment in Belvidere as his “secondary address,” even though all theparties agreed that the second term has no meaning in the Act. After defendant wasreleased from the hospital he returned to his apartment in Belvidere, but he did notre-register it as his residence.

The State charged and convicted defendant with failing to register his address.In response to a bill of particulars, the prosecution stated that its theory of the casewas that defendant never registered a change of address when he returned to Belvidereafter leaving the hospital in Forest Park.

The Supreme Court reversed defendant’s conviction. The court held that the Actdid not require re-registration under the facts of this case. The Act adopts a very broaddefinition of “fixed residence” and “place of residence or temporary domicile,” definingthose terms respectively as places where a sex offender resides for five or more daysor three or more days. Defendant was thus required to register his presence at theForest Park hospital as a place of residence or temporary domicile. Defendant did thisby signing the form filled out by the Forest Park officer. But there was no statutoryrequirement that defendant had to re-register his address in Belvidere after he left thehospital. The term “re-register” does not appear anyway in the statute.

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The language in subsection (b) requiring a sex offender to register when heestablishes a residence “regardless of any initial, prior, or other registration,” meansnothing more than that a defendant must register additional residences. It does notrequire re-registration of already existing residences.

In reaching its decision, the court recounted at length the difficulty the trialcourt, prosecutor and defense counsel had figuring out what the statute required forcompliance. The Supreme Court then stated that “persons subject to the Act’sprovisions must also have fair notice of what is required. It appears to us thatdefendant attempted to comply. Even after all the evidence had been presented in thiscase, the parties and the trial court struggled to figure out what compliance entailed.It should not be thus.”

Defendant’s conviction was reversed outright.

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2. The court concluded that where defendant was charged with second degreemurder, a subsequent charge of first degree murder was not a new and additionalcharge for purposes of the speedy trial statute. Second degree murder is not a lessorincluded offense of first degree murder, but rather a lessor mitigated offense. Becausethe State is required to prove the elements of first degree murder before the trier of factcan consider whether there is a mitigating factor which will reduce the charge tosecond degree murder, first degree and second degree murder have the same elements.However, second degree has an additional mitigating factor.

Because the State must prove first degree murder to obtain a conviction forsecond degree murder, a defendant charged with second degree murder is on noticethat the State intends to prove the elements of first degree murder. Because the firstdegree murder charge added to the prosecution relates back to the original second

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degree murder charge, it is not a new offense. Therefore, delays attributable todefendant on the initial charge are also attributable to him on the subsequent charge.

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STATUTES

City of Chicago v. Alexander, 2017 IL 120350 (No. 120350, 6/15/17)

1. Illinois follows the “limited lockstep” doctrine, which states that Stateconstitutional provisions are deemed to have the same meaning as comparable federalconstitutional provisions unless the language of the Illinois constitution or records ofthe Illinois Constitutional Convention indicate that the Illinois constitution wasintended to be construed differently than the Federal constitution. Article 1, §5 of theIllinois Constitution provides that citizens “have the right to assemble in a peaceablemanner, to consult for the common good, to make known their opinions to theirrepresentatives and to apply for redress of grievances.” The First Amendment of theUnited States Constitution, as it applies to the right to assembly, provides thatCongress shall make no law abridging the right of the people “peaceably to assemble.”The First Amendment applies to the states through the due process clause of theFourteenth Amendment.

The court concluded that the Illinois constitutional right to peaceably assembleis “virtually identical” to the First Amendment and therefore is to be interpreted inlockstep with federal precedents applying the assembly clause of the First Amendment.

2. Under the United States Supreme Court’s jurisprudence regarding the rightof assembly, intermediate scrutiny is applied to content-neutral regulations that affectthe time, place, or manner of expression. To satisfy that standard, a regulation whichaffects the time, place, or manner of expression must be content-neutral, narrowlytailored to serve a significant government interest, and preserve ample alternativechannels of communication.

The court declined to resolve whether the First Amendment and the IllinoisConstitution’s right to peaceably assemble were violated by a Chicago Park Districtordinance closing parks for eight hours beginning at 11 p.m. each night. The courtfound that the issues had not been properly preserved.

3. The court also declined to decide whether the State constitutional provisionsguaranteeing the rights “to consult for the common good” and “make known theiropinions to their representatives” (Art. 1, §5) provide greater protection than the FirstAmendment. The court found that these questions had not been preserved and in anyevent were not presented by this case.

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In re Destiny P., 2017 IL 120796 (No. 120796, 10/19/17)

1. The equal protection clause guarantees that similarly situated individualswill be treated in a similar fashion unless there is an appropriate reason to treat themdifferently. The equal protection clause does not forbid the legislature from drawingdistinctions between different categories of people, but prohibits doing so on the basisof criteria that is wholly unrelated to the legislation’s purpose.

Unless fundamental rights are at issue, rational basis scrutiny is applied toequal protection analysis. Under this standard, legislation does not violate the equalprotection clause if any set of facts can be rationally conceived to justify theclassification.

As a threshold matter in addressing an equal protection claim, the court mustascertain whether the individual is similarly situated to the comparison group. Twoclasses are similarly situated only if they are alike in all relevant respects. In makingthis determination, the court must consider the purpose of the particular legislation.

2. The Supreme Court rejected the argument that first time juvenile offenderscharged with first degree murder are denied equal protection because they do not havethe right to a jury trial although recidivist juvenile offenders charged as violentjuvenile offenders (with two serious violent offenses) and habitual juvenile offenders(three serious offenses) both enjoy the right to jury trials. The court concluded that theclasses were not similarly situated.

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An as-applied challenge to the constitutionality of a statute is directed againsthow the statute applies to the facts and circumstances of a defendant’s case. Asuccessful as-applied challenge enjoins enforcement of the statute only against thedefendant in a specific case.

Pursuant to the State’s police power, the legislature has broad discretion todefine offenses and prescribe penalties. This discretion is limited by due process. Whena statute does not affect a fundamental right, it is subject to the rational basis test.Under this test, a statute will be upheld if it bears a rational relationship to alegitimate legislative purpose.

Defendant was convicted of aggravated domestic battery, which is defined ascommitting a battery against “any family or household member.” 720 ILCS 5/12-3.3(a)(a-5). Family or household member includes any person who has had a datingrelationship, with no time limits on former relationships. 720 ILCS 5/12-0.1. Defendant

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argued that the statute violated due process as applied to him because he had notdated the victim for 15 years.

The Supreme Court rejected defendant’s argument. The court found that thelegislature’s purpose in enacting the statute was to curb the “serious problem ofdomestic violence.” The legislature could rationally believe that people are more likelyto batter a former partner no matter how long ago that relationship ended. Thus, thecourt held that the absence of a time limit on former dating relationships wasreasonable and rationally related to the goal of curbing domestic violence.


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People v. Hunter & Wilson, 2017 IL 121306 (Nos. 121306 & 121345 cons., 11/30/17)

1. An amendment to the statute changing the requirements for the automatictransfer of juveniles to adult court (705 ILCS 405/5-130), which went into effect afterdefendant Hunter had been convicted but while his case was pending on direct appeal,was held not to apply retroactively to defendant’s case. Section 4 of the Statute onStatutes (5 ILCS 70/4) allows the application of procedural changes in the law to beapplied retroactively to ongoing proceedings. It also requires that “the proceedingsthereafter” shall conform to the laws in force at the time of the proceedings in question.In defendant’s case, the proceedings in the trial court were completed before thetransfer statute was amended. Because the proceedings were completed, the amendedstatute does not apply retroactively to defendant’s case.

2. An amendment allowing a trial court to decline to impose firearmenhancements in sentencing defendants under the age of 18 (730 ILCS 5/5-4.5-105),which went into effect after defendants had been convicted but while their cases werepending on direct appeal, was held not to apply retroactively to defendants’ cases.Under section 4 of the Statute on Statutes (5 ILCS 70/4), a punishment mitigated bya new law is applicable only to judgments imposed after the new law takes effect. Sincedefendants were sentenced before the new law went into effect, the amendment doesnot apply retroactively to their cases.


1. The separation of powers doctrine of the Illinois Constitution provides that thelegislative, executive and judicial branches are separate and that no branch shallexercise powers properly belonging to another. Thus, each branch of government has

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its own unique sphere of authority. The judicial article of the Illinois Constitution veststhe Supreme Court with general administrative and supervisory authority over allcourts, empowering it to promulgate procedural rules to facilitate the judiciary in thedischarge of its constitutional duties, including authority to regulate the trial of casesand govern the admission of evidence.

The separation of powers doctrine does not require a complete divorce betweenthe branches of government, however. Thus, although the Supreme Court isempowered to promulgate rules governing admission of evidence at trial, the GeneralAssembly may legislate in this area without offending the separation of powersdoctrine so long as legislative enactments do not create an irreconcilable conflict witha court rule. Where an irreconcilable conflict exists, the court rule prevails.

2. The court concluded that 725 ILCS 5/115-10.6 and Rule of Evidence 804(b)(5)contain an irreconcilable conflict, and that the statute must therefore give way to Rule804(b)(5). The court noted that §115-10.6 contains additional criteria for admission ofhearsay which diminish the equitable considerations at the center of the forfeiture bywrongdoing doctrine codified by Illinois Rule of Evidence Rule 804(b)(5).

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People v. Relerford, 2017 IL 121094 (No. 121094, 11/30/17)

The Illinois Supreme Court held that the stalking and cyberstalking statutesviolated the First Amendment and were facially unconstitutional.

A defendant commits stalking when he “knowingly engages in a course ofconduct directed at a specific person,” and he knows or should know that his conductwould cause a reasonable person to fear for his or her safety or suffer emotionaldistress. 720 ILCS 5/12-7.3(a)(1), (a)(2). Course of conduct is defined as two or moreacts where a defendant “follows, monitors, observes, surveils, threatens, orcommunicates to or about” a person. 720 ILCS 5/12-7.3(c)(1). Emotional distress isdefined as “significant mental suffering, anxiety, or alarm.” 720 ILCS 5/12-7.3(c)(3).The cyberstalking statute imposes criminal liability based on similar language. 720ILCS 5/12-7.5(a).

Content-based laws targeting speech based on its communicative content arepresumed to be invalid. Here the proscription against communications “to or about”another person that would cause a reasonable person to suffer emotional distresscriminalizes speech based on its content. Additionally, the statutes criminalize anumber of commonplace situations where an individual’s speech might cause anotherperson to suffer emotional distress. The statutes are thus overbroad on their face andas such violate the First Amendment.

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The Public Act that created the present version of the stalking and cyberstalkingstatutes specifically stated that the provisions of these statutes are severable. TheCourt therefore struck the phrase “communicates to or about” from each statute. Sincedefendant’s prosecution relied on the now-stricken language, the Court reversed hisconvictions.

Round v. Lamb, 2017 IL 122271 (No. 122271, 8/3/17)

The court concluded that although Public Act 97-531 amended 730 ILCS 5/5-8-1to require the trial court to include an MSR term in the written sentencing order, thatrequirement is directory rather than mandatory. Procedural commands to governmentofficials are presumed to be directory, and that presumption is overcome only ifnegative language in the statute prohibits further action in the case of noncomplianceor the right which the statute is designed to protect would generally be injured if thestatute were read as directory. Because the requirement that the trial judge includethe MSR term in the sentencing order is directory only, the absence of an MSR termdoes not invalidate the sentence. Instead, an MSR term is included in the sentence asa matter of law.

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TRAFFIC OFFENSES

People v. Way, 2017 IL 120023 (No. 120023, 4/20/17)

A person commits driving under the influence when she drives a vehicle andthere is any amount of cannabis in her system. 625 ILCS 5/11-501(a)(6). A personcommits aggravated DUI when she violates the DUI statute, is involved in a motorvehicle accident that causes great bodily harm to another, and “the violation was aproximate cause of the injuries.” 625 ILCS 5/11-501(d)(1)(c). Aggravated DUI is a strictliability offense and does not require any proof of impairment; it only requires a causallink between the physical act of driving and the injuries to another person.

Defendant was driving her car while she had cannabis in her system. Shestarted to fall asleep at the wheel and drove her car into oncoming traffic, strikinganother car and causing great bodily harm to the passengers. There was no evidencethat she was impaired. The trial court found her guilty of aggravated DUI and wouldnot allow her to present the testimony of her physician that defendant had low bloodpressure and it was possible that the loss of consciousness was caused by this conditionand not by any drug.

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The Supreme Court held that nothing in the framework of the DUI statuteprevents a defendant from raising as an affirmative defense that the collision resultingin serious bodily injury was caused solely and exclusively by a sudden unforeseeablemedical condition that rendered the defendant incapable of controlling the vehicle. Adefendant who raises this affirmative defense bears the burden of showing that theunforseen condition constituted the sole proximate cause of the accident and theinjuries.

Here defendant’s physician could not have testified that defendant’s low bloodpressure was the sole cause of her falling asleep or losing consciousness, only that itwas a possibility. Defendant was thus unable to show that her medical condition wasthe sole proximate cause of the collision.


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TRIAL PROCEDURES


The use of physical restraints in court is permitted only where there is amanifest need for the restraints. The decision about whether and how to restrain adefendant is left to the trial court’s discretion. Under Illinois Supreme Court Rule 430,the trial court must conduct a hearing to determine whether restraints are necessary,must allow the defendant to be heard, and must make specific findings beforepermitting the use of restraints.

Here the trial court did not conduct a hearing or articulate any reason forshackling defendant during jury selection. Instead, the court deferred to theDepartment of Corrections about whether defendant should be shackled. Under thesecircumstances, “the trial court clearly abused its discretion in allowing defendant tobe shackled during jury selection,” resulting in a due process violation.

But the Supreme Court found that the due process violation was harmless, sincethe record showed beyond a reasonable doubt that the error did not contribute todefendant’s conviction. During jury selection, the trial court placed skirting aroundcounsel table to block the view of the shackles. Only one prospective juror saw theshackles under the table and he stated that it would not affect his ability to be fair.Additionally, the record shows that defendant, who represented himself, was nothindered in any manner during jury selection. The shackles were removed after juryselection, and the State presented overwhelming evidence of guilt. The shackling errorthus did not contribute to defendant’s convictions and was harmless.

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UNLAWFUL USE OF A WEAPON

People v. Holmes, 2017 IL 120407 (No. 120407, 7/20/17)

1. The void ab initio doctrine is a State judicial principle holding that a faciallyunconstitutional statute is void from the beginning. An unconstitutional law confersno right, imposes no duty, and affords no protection. It is as if the law had never beenpassed. A defendant cannot be prosecuted under a statute that is void ab initio.

The court concluded, however, that where a statute is held unconstitutionalbecause it violates a provision of the United States constitution and not merely as amatter of state constitutional law, the void ab initio doctrine is subject to the limitedlockstep doctrine. The latter doctrine provides that where a provision of the Stateconstitution has an equivalent provision in the federal constitution, the Stateconstitutional provision will be interpreted in accordance with the United StatesSupreme Court’s interpretation of the federal provision, unless there is reason tobelieve that the drafters of the Illinois constitution intended a different result.

2. Here, defendant was arrested for possessing a revolver on a Chicago street.He was charged with two counts of aggravated unlawful use of a weapon based oncarrying the weapon on the street and two counts of AUUW for possessing the weaponwithout a valid FOID card. After the arrest, People v. Aguilar held that the sectionsof the AUUW statute prohibiting the carrying of a weapon were faciallyunconstitutional as a violation of the Second Amendment. Defendant was subsequentlyconvicted of the counts alleging carrying the weapon without a valid FOID card.

Because the arresting officer learned that defendant did not have a FOID cardonly after he had made the arrest for carrying the weapon, defendant argued that theprobable cause for the arrest was retroactively invalidated under the void ab initiodoctrine. Defendant argued that it would be improper to prosecute him for not havinga FOID card when probable cause for the arrest existed only under a different,unconstitutional statute.

The Supreme Court rejected this argument, noting that federal case law clearlyholds that probable cause is not retroactively invalidated because the statute on whichan arrest was based is subsequently held unconstitutional. Because strict applicationof the Illinois void ab initio doctrine would conflict with the limited lockstep doctrine,the defense argument was rejected. “[T]he void ab initio doctrine does not retroactivelyinvalidate probable cause based on a statute later held unconstitutional on federalconstitutional grounds or on State constitutional grounds subject to the limitedlockstep doctrine.”

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WAIVER - PLAIN ERROR - HARMLESS ERROR

People v. Sebby, 2017 IL 119445 (No. 119445, 6/2/17)

1. There are two kinds of plain error: (1) when a clear error occurs and theevidence is so closely balanced that the error alone threatened to tip the scales ofjustice against the defendant, regardless of the seriousness of the error; and (2) whena clear error occurs and the error is so serious that it affected the fairness of thedefendant’s trial and challenged the integrity of the judicial process, regardless of thecloseness of the evidence.

Under the first prong of plain error, if the evidence is closely balanced, prejudiceis not presumed; the error is actually prejudicial. A defendant who has shown clearerror and closely balanced evidence has shown prejudice and is entitled to relief. Indetermining whether the evidence was closely balanced, a reviewing court mustevaluate the totality of the evidence and conduct a qualitative, commonsenseassessment of the evidence within the context of the case.

Defendant was convicted of resisting a peace officer following a jury trial. In a4-3 decision, the Illinois Supreme Court held that the trial court’s failure to complywith Rule 431(b) constituted plain error under the first prong of the plain erroranalysis.

2. The parties agreed that the trial court violated Illinois Supreme Court Rule431(b), which requires the court to ask potential jurors whether they “understand andaccept” the four Zehr principles: (1) defendant is presumed innocent; (2) the Statemust prove defendant guilty beyond a reasonable doubt; (3) defendant does not haveto offer any evidence on his behalf; and (4) if defendant does not testify it cannot beheld against him. Here the trial court asked jurors whether they “had any problemswith” or “believed in” the Zehr principles. The Illinois Supreme Court held that thiswas clear error.

3. The court also held that the evidence was closely balanced. Both sidespresented a plausible version of events concerning the issue of whether defendantknowingly resisted the performance of a known police officer’s authorized acts andwhether that violation was the proximate cause of injury to the officer. 720 ILCS 5/31-1(a), (a-7). The testimony of the State’s witnesses was largely consistent, but so was thetestimony of the defense witnesses. Neither side presented accounts that were fanciful.The outcome of the case thus turned on how the trier of fact resolved a contest ofcredibility. And since both sides were credible, the evidence was closely balanced.

Since there was clear error and the evidence was closely balanced, defendantestablished plain error under the first prong. The court rejected the State’s argumentthat the closeness of the evidence is only one consideration in deciding whether therewas prejudice. The State’s argument would impermissibly add the seriousness

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requirement of the second prong onto the closeness requirement of the first prong to“yield a hybrid requirement.” The State’s argument ignores the fact that “prejudicerests not upon the seriousness of the error but upon the closeness of the evidence.” Anerror is prejudicial when it occurs in a close case because its impact on the result ispotentially dispositive.

The court reversed defendant’s conviction and remanded for a new trial.

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