SUMMARY OF CRIMINAL CASES

PENDING IN THE ILLINOIS SUPREME COURT

December 2014

Prepared by:

Leah M. Bendik Criminal Appeals Division

Illinois Attorney General=s Office

TABLE OF CONTENTS (New Cases Appear in Bold)

(New Opinions Designated with ** asterisk and Italic)

In re D.L.H. ................................................ 8 In re Jordan G. .......................................... 2 **In re Det. of John New, Jr. ............... 5, 14 People v. Allen ......................................... 22 People v. Almond ....................................... 3 People v. Barner ...................................... 15 People v. Belknap .................................... 21 People v. Boyce ......................................... 1 People v. Burns .......................................... 2 People v. Carter ....................................... 24 People v. Castleberry ............................... 18 People v. Chambers ................................ 10 People v. Chenoweth ............................... 10 **People v. Denson ............................ 15, 20

People v. Downs ...................................... 12

People v. Espinoza ................................ 10

People v. Fiveash ...................................... 5

People v. Gaytan ....................................... 6

People v. Goossens ............................... 19

**People v. Holt .......................................... 9

People v. Hughes ........................... 9, 21, 21 People v. Jenkins ....................................... 4 **People v. Jolly ................................. 17, 20

People v. Kuehner .................................... 23 People v. LeFlore ....................................... 7 People v. Ligon ................................... 6, 19 People v. McFadden ................................ 14 People v. Mosley ........................................ 1 People v. Pacheco ......................... 4, 12, 17 **People v. Patterson ................. 3, 7, 13, 16 People v. Reed .......................................... 3 People v. Richardson ............................... 5 People v. Rizzo ......................................... 6 People v. Sanders .................................. 23 People v. Schweihs .................................... 2 People v. Simpson ............................. 14, 17

People v. Mickey Smith ............................ 11

**People v. William Smith ......................... 22

People v. Stapinski ........................... 11, 22

People v. Stevens .................................... 11

People v. Taylor ................................. 18, 23

People v. Thompson ........................ 19, 24

People v. Timmsen ................................... 7

People v. Tolbert ........................................ 1

People v. Williams ...................................... 2

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I. NATURE AND ELEMENTS OF SPECIFIC OFFENSES

A. ATTEMPT SOLICITATION OF MURDER

No. 117108 People v. Anthony Boyce, defense appeal allowed 3/26/14 from 2013 IL App (1st) 102318-U (Nov. 27, 2013)

Whether Illinois recognizes the criminal offense of attempt solicitation of murder, where that offense combines two inchoate offenses (attempt and solicitation) into one offense. Specifically, whether the general attempt statute may be applied to the offense of solicitation of murder.

Prosecutor: Doug Harvath, Assistant State’s Attorney, Cook County. Defense counsel: Philip D. Payne, Assistant Appellate Defender, Chicago.

B. AGGRAVATED UNLAWFUL USE OF A WEAPON

No. 117846 People v. Joshua Tolbert, State appeal allowed 9/24/14 from 2014 IL App (1st) 122343-U (May 9, 2014) Whether the appellate court erred in holding that the State must prove beyond a reasonable doubt the absence of the invitee exemption as an element of aggravated unlawful use of a weapon (720 ILCS 5/24-2(b)(5)). The invitee exemption creates an exemption to certain firearms offenses for invitees with permission to have a firearm on the premises, and the statute specifies that “The defendant shall have the burden of proving such an exemption.” 720 ILCS 5/24-2(h). Prosecutor: Annette Collins, Assistant State’s Attorney, Cook County. Defense counsel: ??.

II. VALIDITY OR APPLICATION OF STATUTES

A. AGGRAVATED UNLAWFUL USE OF A WEAPON

No. 115872 People v. Donta Mosley, direct State appeal from declaration of unconstitutionality by Cook County Circuit Court; notice of appeal filed February 2013 Whether the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1) & (a)(3)(A) & (C) and its punishment in (d)(2)) is unconstitutional in violation of Proportionate Penalties and Due Process Clauses of the Illinois Constitution both on its face and as applied. Prosecutor: Noah Montague, Assistant State’s Attorney, Cook County. Defense counsel: Gilbert C. Lenz, Assistant Appellate Defender, Chicago.

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No. 116834 In re Jordan G., direct State appeal from declaration of unconstitutionality by Cook County Circuit Court; notice of appeal filed October 2013 Whether subsections (a)(1) and (a)(3)(I) of the aggravated unlawful use of a weapon (AUUW) statute (720 ILCS 5/24-1.6) – prohibiting, with certain exceptions, a person under twenty-one years of age from carrying a handgun outside the home – violate the Second Amendment. Whether subsections (a)(1) and (a)(3)(C) of the AUUW statute – prohibiting a person without a currently valid FOID card from carrying a firearm – violate the Second Amendment. Whether subsections (a)(1) and (a)(3)(A) of the AUUW statute – prohibiting a person from carrying an uncased, loaded, accessible firearm -- comport with the Second Amendment as applied to misdemeanants on probation with conditions prohibiting them from possessing or discharging firearms. Prosecutor: Jon Walters, Assistant State’s Attorney, Cook County. Defense counsel: Lester Finkle, Assistant Cook County Public Defender.

No. 117387 People v. Edward Burns, defense appeal allowed 5/28/14 from 2013 IL App (1st) 120929,

4 N.E.3d 191 (Dec. 31, 2013) Addressing the question left open in People v. Aguilar, 2013 IL 112116, concerning the

class 2 form of AUUW, whether criminalizing the possession of a weapon by a felon through the offense of AUUW infringes on the Second Amendment right to bear arms in light of D.C. v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010).

Prosecutor: Veronica Calderon Malavia, Assistant State’s Attorney, Cook County. Defense counsel: Adrienne N. River, Assistant Appellate Defender, Chicago. No. 117470

People v. Juan Williams, direct State appeal from declaration of unconstitutionality by Cook County Circuit Court; notice of appeal filed April 2014 Whether the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(C)) violates the Proportionate Penalties Clause by having the identical elements as the FOID Act, in light of People v. Aguilar, 2013 IL 112116. Prosecutor: John Nowak, Assistant State’s Attorney, Cook County. Defense counsel: Danita Ivory, Assistant Public Defender, Cook County. No. 117789 People v. James Schweihs, direct State appeal from declaration of unconstitutionality by Kane County Circuit Court; notice of appeal filed February 2014

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Whether the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(C)) violates the Proportionate Penalties Clause by having the identical elements as the FOID Act, in light of People v. Aguilar, 2013 IL 112116. Prosecutor: Garson Fischer, Assistant Attorney General, Chicago. Defense counsel: John Moran, Chicago. No. 118164 People v. Timothy Reed, direct State appeal from declaration of unconstitutionality by St. Clair County Circuit Court; notice of appeal filed August 2014 Whether the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(C)) violates the Proportionate Penalties Clause by having the identical elements as the FOID Act, in light of People v. Aguilar, 2013 IL 112116. Prosecutor: Erin O’Connell, Assistant Attorney General, Chicago. Defense counsel: James Gomric, Belleville.

B. UNLAWFUL USE OF A WEAPON BY A FELON

No. 113817 People v. Antonio Almond, State appeal allowed 1/29/14 from 2011 IL App (1st) 093587-U (Nov. 10, 2011) Whether 720 ILCS 5/24-1.1(a) authorizes two convictions for unlawful use of a weapon (UUW) by a felon for possession of a single loaded firearm – i.e., one for the firearm, and one for the ammunition loaded inside. Prosecutor: Mary Needham, Assistant State’s Attorney, Cook County. Defense counsel: Ginger Leigh Odom, Assistant Appellate Defender, Chicago.

C. JUVENILE COURT ACT **No. 115102

People v. Ronald Patterson, State appeal allowed 1/30/13 from 2012 IL App (1st) 101573, 975 N.E.2d 1127 (Sept. 26, 2012)

Whether the appellate court erred in holding that the confession of a minor in DCFS wardship and custody must be suppressed given absence of notice to his non-custodial parents even though the Juvenile Court Act allows notice to legal guardians. In the same vein, whether the appellate court erred in holding that the confession was involuntary given the absence of a concerned adult although there was no evidence of coercion or mistreatment. Whether the appellate court misapplied the Rape Shield statute, allowing defendant to introduce evidence of the victim’s sexual history to show an alternate explanation for physical evidence of assault that was presumptively inadmissible. Whether defense counsel was ineffective for failing to present evidence of defendant’s mental impairment in support of his claim that his confession was involuntary (cross-

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appeal claim). Whether Illinois’s automatic transfer statute (705 ILCS 5/130-1(a)) – along with mandatory adult sentencing, mandatory consecutive sentencing, and truth in sentencing (separately or cumulatively) – violate the Eighth Amendment, Illinois’s Proportionate Penalties Clause, and the Due Process Clause (cross-appeal claim). Supreme Court answer: The Court held that the minor’s confession need not be suppressed given the absence of notice or due to involuntariness. The Court found that the police made a “reasonable” attempt to notify a proper person as required by statute, and that the conduct of the youth officer was not improper. Moreover, the statute mandates neither that a concerned adult be present for questioning nor that actual notice be provided before questioning begins. Relatedly, the Court held that counsel was not ineffective at the suppression hearing because of a lack of prejudice in light of overwhelming evidence. The Court also rejected the constitutional challenges to the automatic transfer statute. The statute did not violate the Due Process Clause. The Court already rejected such a challenge, and recent U.S. Supreme Court precedent on Eighth Amendment protections for juveniles (e.g., Miller v. Alabama) did not warrant a different conclusion. The Court also found no Eighth Amendment or Proportionate Penalties violation because the statute was not punitive. But the majority (and the dissent) urged the legislature to reconsider the mandatory nature of the statute. Finally, the Court reversed the appellate court and held that the circuit court did not abuse its discretion in excluding evidence of the victim’s sexual history. Justice Theis concurred with the majority, except that she dissented and would have held that the automatic transfer statute violates the Eighth Amendment and the Proportionate Penalties Clause because it is punitive, and it is cruel in light of evolving standards of decency about juvenile punishment reflected in cases such as Miller. Prosecutor: Douglas Harvath, Assistant State’s Attorney, Cook County. Defense counsel: Christopher Kopacz, Assistant Appellate Defender, Chicago. Opinion: 10/17/14—appellate court judgment reversed; Justice Theis dissenting. No. 115979 People v. Terrel Jenkins, defense appeal allowed 9/25/13 from 2013 IL App (1st) 103006-U (Mar. 29, 2013) Whether the mandatory transfer statute (705 ILCS 405/5-130) (requiring 15 & 16 y.o. juveniles charged with certain offenses such as murder to be tried in adult court) is unconstitutional in light of Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 130 S. Ct. 2011 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), that all gave juveniles greater constitutional protections than adults in the criminal justice system. Prosecutor: Joseph Alexander, Assistant State’s Attorney, Chicago. Defense counsel: Sean Collins-Stapleton, Assistant Appellate Defender, Chicago. No. 116402 People v. Maria Pacheco, defense appeal allowed 9/25/13 from 2013 IL App (4th) 110409,

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991 N.E.2d 896 (June 24, 2013) Whether the mandatory transfer statute (705 ILCS 405/5-130) (requiring 15 & 16 y.o. juveniles charged with certain offenses such as murder to be tried in adult court) is unconstitutional in light of Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 130 S. Ct. 2011 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), that all gave juveniles greater constitutional protections than adults in the criminal justice system. Whether counsel was ineffective for conceding minor was guilty of felony murder and failing to impeach State’s witness. Whether the minor should be deemed guilty of felony murder alone since only a general verdict form was submitted to the jury. Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago. Defense counsel: Jacqueline Bullard, Assistant Appellate Defender, Springfield. No. 117669 People v. David Fiveash, defense appeal allowed 9/24/14 from 2014 IL App (1st) 123262, 8 N.E.3d 1221 (Apr. 22, 2014) Whether section 5-120 of the Juvenile Court Act permits indictment of a person who has attained 21 years of age for offenses allegedly committed when deemed a minor under the Act. Prosecutor: Michelle Katz, Assistant State’s Attorney, Cook County. Defense counsel: Larry Wechter, Geneva. No. 118255 People v. Jermaine Richardson, direct State appeal from declaration of unconstitution-ality by DuPage County Circuit Court; notice of appeal filed September 2014 Whether the amendment to the Juvenile Court Act excluding from its jurisdiction minors under 18 instead of under 17 (effective 1/01/14) – and specifically its language specifying its prospective application only (705 ILCS 405/5-120, par. 2) – violates the Equal Protection Clause of the federal and state constitutions. Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago. Defense counsel: Mark Lyon, Assistant Public Defender, DuPage County.

D. SEXUALLY VIOLENT PERSONS COMMITMENT ACT **No. 116306

In re Detention of John New, Jr., State appeal allowed 11/27/13 from 2013 IL App (1st) 111556, 992 N.E.2d 519 (June 12, 2013) Whether the appellate court erred in holding that the State’s SVP expert’s diagnosis of paraphilia not otherwise specified (sexually attracted to adolescent males) (a/k/a hebephilia) should have been subject to a Frye hearing because such hearings are supposed to be only for scientific principles or methodologies, not final conclusions.

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Supreme Court answer: The Court held that the diagnosis of hebephilia is subject to Frye, and that there was an inadequate basis for the court to evaluate general acceptance in the first instance. As a result, the Court remanded to the circuit court for a Frye hearing. Prosecutor: Erica Seyburn, Assistant Attorney General, Chicago. Defense counsel: Stephen Potts, Des Plaines. Opinion: 11/20/14—appellate court judgment affirmed; cause remanded to circuit court.

E. VEHICLE CODE No. 116223

People v. Jose Gaytan, State appeal allowed 9/25/13 from 2013 IL App (4th) 120217, 992 N.E.2d 17 (May 21, 2013) Whether section 3-413(b) of the Vehicle Code (625 ILCS 5/3-413(b)) prohibits a trailer ball hitch from obstructing the visibility of a vehicle’s license plate. Prosecutor: Jean Godfrey, Assistant Attorney General, Chicago. Defense counsel: Colleen Morgan, Assistant Appellate Defender, Springfield.

F. CODE OF CORRECTIONS No. 118599

People v. Vincent Rizzo, direct State appeal from declaration of unconstitutionality by Cook County Circuit Court; notice of appeal filed November 2014 Whether 730 ILCS 5/5-6-1(p), barring supervision for the offense of aggravated speed-ing (625 ILCS 5/11-601.5) is unconstitutional facially and as applied, under the Due Process, Equal Protection, and Proportionate Penalties Clauses because it is cruel and degrading to forbid a sentence of supervision in every case without consideration of the factual circumstances. Prosecutor: Annette Collins, Assistant State’s Attorney, Cook County. Defense counsel: Ilia Usharovich, Wheeling.

G. HABITUAL CRIMINAL ACT No. 118023

People v. Dennis Ligon, State appeal allowed 11/26/14 from 2014 IL App (1st) 120913, 14 N.E.3d 497 (June 23, 2014)

Whether the appellate court erred in holding that defendant’s life sentence was unconstitutionally disproportionate. More specifically, the court held that defendant’s class X felony conviction for aggravated vehicular hijacking while armed with a dangerous weapon, and its mandatory life sentence under the Habitual Criminal Act, were unconstitutionally disproportionate to the 6-30 year class X felony sentencing range that would have applied if he had been convicted of the class 1 felony offense of armed violence predicated on vehicular hijacking while armed with a Category III weapon (a bludgeon) given that the two offenses had identical elements but disparate

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penalties. There are two issues within this holding about which appellate case law is split. First, whether a higher sentence required through the Habitual Criminal Act should even be subject to proportionate penalties analysis given its consideration of prior criminal history, and second, whether the BB gun involved in this case qualified as a Category III weapon (a bludgeon).

Prosecutor: Kathryn Schierl?, Assistant State’s Attorney, Cook County. Defense counsel: Patrick Cassidy, Assistant Appellate Defender, Chicago.

III. PRELIMINARY PROCEEDINGS

A. SEARCH & SEIZURE-FOURTH AMENDMENT

No. 116799 People v. Keith LeFlore, State appeal allowed 1/29/14 from 2013 IL App (2d) 100659, 996 N.E.2d 678 (Sept. 17, 2013) Whether the appellate court erred by reversing denial of suppression of evidence gained from a GPS device on a vehicle associated with defendant under U.S. v. Jones, 132 S. Ct. 945 (2012) because (a) defendant lacked a reasonable expectation of privacy in the vehicle (of woman who lived with him); (b) his parole status precluded him from objecting to the “search”; and (c) the good faith exception to the exclusionary rule applied. Prosecutor: Eldad Malamuth, Assistant Attorney General, Chicago. Defense counsel: Darren Miller, Assistant Appellate Defender, Elgin. No. 118181 People v. Jacob Timmsen, State appeal allowed 11/26/14 from 2014 IL App (3d) 120481, 14 N.E.3d 1267 (July 25, 2014) Whether the appellate court erred in holding that the police did not have reasonable suspicion to stop defendant’s vehicle based solely on defendant making a legal U-turn over railroad tracks 50 feet from a police roadblock at 1:15 a.m. Prosecutor: Drew Meyer, Assistant Attorney General, Chicago. Defense counsel: Thomas Karalis, Assistant Appellate Defender, Ottawa.

B. VOLUNTARINESS OF CONFESSION (JUVENILE)

**No. 115102

People v. Ronald Patterson, State appeal allowed 1/30/13 from 2012 IL App (1st) 101573, 975 N.E.2d 1127 (Sept. 26, 2012)

Whether the appellate court erred in holding that the confession of a minor in DCFS wardship and custody must be suppressed given absence of notice to his non-custodial parents even though the Juvenile Court Act allows notice to legal guardians. In the same vein, whether the appellate court erred in holding that the confession was involuntary given the absence of a concerned adult although there was no evidence of coercion or mistreatment.

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Whether the appellate court misapplied the Rape Shield statute, allowing defendant to introduce evidence of the victim’s sexual history to show an alternate explanation for physical evidence of assault that was presumptively inadmissible. Whether defense counsel was ineffective for failing to present evidence of defendant’s mental impairment in support of his claim that his confession was involuntary (cross-appeal claim). Whether Illinois’s automatic transfer statute (705 ILCS 5/130-1(a)) – along with mandatory adult sentencing, mandatory consecutive sentencing, and truth in sentencing (separately or cumulatively) – violate the Eighth Amendment, Illinois’s Proportionate Penalties Clause, and the Due Process Clause (cross-appeal claim). Supreme Court answer: The Court held that the minor’s confession need not be suppressed given the absence of notice or due to involuntariness. The Court found that the police made a “reasonable” attempt to notify a proper person as required by statute, and that the conduct of the youth officer was not improper. Moreover, the statute mandates neither that a concerned adult be present for questioning nor that actual notice be provided before questioning begins. Relatedly, the Court held that counsel was not ineffective at the suppression hearing because of a lack of prejudice in light of overwhelming evidence. The Court also rejected the constitutional challenges to the automatic transfer statute. The statute did not violate the Due Process Clause. The Court already rejected such a challenge, and recent U.S. Supreme Court precedent on Eighth Amendment protections for juveniles (e.g., Miller v. Alabama) did not warrant a different conclusion. The Court also found no Eighth Amendment or Proportionate Penalties violation because the statute was not punitive. But the majority (and the dissent) urged the legislature to reconsider the mandatory nature of the statute. Finally, the Court reversed the appellate court and held that the circuit court did not abuse its discretion in excluding evidence of the victim’s sexual history. Justice Theis concurred with the majority, except that she dissented and would have held that the automatic transfer statute violates the Eighth Amendment and the Proportionate Penalties Clause because it is punitive, and it is cruel in light of evolving standards of decency about juvenile punishment reflected in cases such as Miller. Prosecutor: Douglas Harvath, Assistant State’s Attorney, Cook County. Defense counsel: Christopher Kopacz, Assistant Appellate Defender, Chicago. Opinion: 10/17/14—appellate court judgment reversed; Justice Theis dissenting. No. 117341 In re D.L.H., State appeal allowed 3/18/14 from 2013 IL App (5th) 130341-U (Dec. 12, 2013) Whether, at a discharge hearing following a finding of unfitness, respondent’s statement to law enforcement should have been suppressed under Miranda due to his borderline intellectual functioning (as relevant to the issue of custody), where there was no evidence that the officer knew or had reason to know of it

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Whether any error in admitting the statement was harmless. Prosecutor: Brian McLeish, Assistant Attorney General, Chicago. Defense counsel: Bill T. Walker, Granite City.

C. VOLUNTARINESS OF CONFESSION (ADULT)

No. 117242

People v. Cavinaugh Hughes, State appeal allowed 5/20/14 from 2013 IL App (1st) 110237 (Dec. 18, 2013)

Whether the appellate court erred in finding one of defendant’s several confessions involuntary due to polygraph examiner trickery, defendant’s age, education, and experience, his exhausted condition given the recent death of his grandfather, and his confusion from ingesting marijuana in the interrogation room

Whether the appellate court overreached by sua sponte finding involuntariness on a theory not advanced by defendant, reversing all of defendant’s convictions even though defendant did not seek to reverse a murder conviction, and conducting a factual analysis under an unclear standard of review [asks to resolve question left unanswered in People v. Givens, 237 Ill. 2d 311 (2010)] Prosecutor: Janet Mahoney, Assistant State’s Attorney, Cook County. Defense counsel: Nicole Marie Jones, Assistant Appellate Defender, Chicago.

D. FITNESS TO STAND TRIAL

**No. 116989 People v. Mary Holt, defense appeal allowed 1/29/14 from 2013 IL App (2d) 120476, 998 N.E.2d 933 (Oct. 29, 2013) Whether the appellate court erred in finding defendant unfit to stand trial. Specifically, the State raised a doubt about Holt’s fitness to stand trial. At the fitness hearing (at which the State bore the burden of proving she was fit), the State stated it could not meet its burden. Defense counsel moved for a directed verdict finding his client unfit. But, Holt herself asserted that she was fit, and attempted to present evidence to the court, which was rebuffed. On appeal, she asserted that her counsel was ineffective for not defending her presumption of fitness and that the court erred in finding her unfit. In short, whether it is acceptable for there to be an essentially uncontested finding of fitness where the subject herself objects. Supreme Court answer: The Court noted that due process bars prosecution of one who is unfit for trial. No plausible interpretation of the right to counsel would require a defense attorney to fight for an outcome that, in counsel’s estimation, would violate due process. In other words, where, as here, the evidence clearly indicates that a defendant is unfit for trial but the defendant claims otherwise, defense counsel is not obligated to adopt that position and argue for a fitness finding. To do so would violate the duty to the client and suborn a violation of due process.

Prosecutor: Matthew Becker, Assistant Attorney General, Chicago.

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Defense counsel: R. Christopher White, Assistant Appellate Defender, Elgin. Opinion: 11/20/14—appellate court judgment affirmed.

E. STATUTE OF LIMITATIONS No. 116898

People v. Barbara Chenoweth, State appeal allowed 1/29/14 from 2013 IL App (4th) 120334, 996 N.E.2d 1258 (Oct. 11, 2013) Whether the appellate court erred in holding that the victim need not know that another has fulfilled every element of an offense to trigger the statute of limitations for thefts involving breach of fiduciary duty (about financial exploitation of an elderly person) in light of case law saying that suspicion does not constitute discovery of the offense for statute of limitations purposes. Prosecutor: Drew Meyer, Assistant Attorney General, Chicago. Defense counsel: Janieen R. Tarrance, Assistant Appellate Defender, Springfield.

F. FRANKS HEARING

No. 117911

People v. Terrill Chambers, State appeal allowed 9/24/14 from 2014 IL App (1st) 120147, 12 N.E.3d 772 (May 27, 2014) Whether a Franks hearing should never be held in a case in which a nongovernmental confidential informant personally testifies before the judge issuing the warrant. (Franks v. Del., 438 U.S. 154 (1978), held that the Fourth Amendment requires that a hearing be held at a defendant’s request to challenge a search warrant where defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by affiant in a search warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause. Prosecutor: William Toffenetti, Assistant State’s Attorney, Cook County. Defense counsel: Tomas Gonzalez, Assistant Appellate Defender, Chicago.

G. DISMISSAL OF CHARGING INSTRUMENT No. 118218

People v. Sandro Espinoza, State appeal allowed 11/26/14 from 2014 IL App (3d) 120766, 17 N.E.3d 664 (Aug. 7, 2014) Whether the appellate court erred in holding that the exclusion of a minor victim’s name from the charging instrument was a defect that subjected the case to dismissal under 725 ILCS 5/111-3 because it was an “essential allegation” rather than merely a formal defect subject to amendment at any time. Moreover, whether the appellate courts affirmance of the case’s dismissal was against the public policy of protecting minors’ identities. Prosecutor: Jean Godfrey, Assistant Attorney General, Chicago Defense counsel: Mark Fisher, Assistant Appellate Defender, Ottawa.

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IV. PLEAS

A. RETROACTIVITY OF PEOPLE v. WHITE

No. 116572 People v. Mickey Smith, State appeal allowed 11/27/13 from 2013 IL App (3d) 110738, 993 N.E.2d 589 (Aug. 2, 2013) Whether People v. White, 2011 IL 109616, applies retroactively to cases on collateral review. White held that the State cannot negotiate a plea deal for a sentence unauthorized by statute. There, the factual basis demonstrated that the offense was committed with a firearm, and the minimum sentence plus the mandatory firearm enhancement totaled a longer sentence than that from the plea agreement, rendering it void. The State is free to avoid this, for example, by omitting firearm language from the factual basis of the plea. Prosecutor: Stephen Soltanzadeh, Assistant Attorney General, Chicago. Defense counsel: Kerry Bryson, Assistant Appellate Defender, Ottawa.

B. SANCTION FOR VIOLATION OF COOPERATION AGREEMENT

No. 118278 People v. Anthony Stapinski, defense appeal allowed 11/26/14 from 2014 IL App (3d) 130352-U (July 24, 2014) Whether due process demands dismissal of the indictment or mere suppression of evidence obtained in the course of defendant’s cooperation when charges were brought against him contrary to the terms of a cooperation agreement that defendant made with police. Whether the abuse of discretion or de novo standard of review applies to review of dismissal of charges. Prosecutor: Illinois Attorney General’s Office. Defense counsel: Phyllis Perko, West Dundee.

V. TRIAL PROCEDURES

A. WAIVER OF FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

No. 116300 People v. Mark Stevens, defense appeal allowed 9/25/13 from 2013 IL App (1st) 111075, 993 N.E.2d 62 (June 14, 2013) Whether a defendant’s choice to testify on his own behalf at trial is a waiver of his Fifth Amendment privilege against self-incrimination as to pending, unrelated charges where the deft has not “opened the door” to such cross-examination with his direct testimony. Prosecutor: Iris Ferosie, Assistant State’s Attorney, Cook County. Defense counsel: Brett Zeeb, Assistant Appellate Defender, Chicago.

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B. VERDICT FORMS

No. 116402 People v. Maria Pacheco, defense appeal allowed 9/25/13 from 2013 IL App (4th) 110409, 991 N.E.2d 896 (June 24, 2013) Whether the mandatory transfer statute (705 ILCS 405/5-130) (requiring 15 & 16 y.o. juveniles charged with certain offenses such as murder to be tried in adult court) is unconstitutional in light of Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 130 S. Ct. 2011 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), that all gave juveniles greater constitutional protections than adults in the criminal justice system. Whether counsel was ineffective for conceding minor was guilty of felony murder and failing to impeach State’s witness. Whether minor should be deemed guilty of felony murder alone since only a general verdict form was submitted to the jury. Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago. Defense counsel: Jacqueline Bullard, Assistant Appellate Defender, Springfield.

C. ANSWERING JURY QUESTIONS

No. 117934 People v. Mark Downs, State appeal allowed 9/24/14 from 2014 IL App (2d) 121156, 11 N.E.3d 869 (May 30, 2014) Whether the appellate court erred by finding plain error where, in response to a jury question about the definition of “reasonable doubt,” the circuit court replied, “We cannot give you a definition[;] it is your duty to define.” Specifically, whether the appellate court erred by: (1) concluding that the circuit court’s response defined “reasonable doubt”; and (2) looking at the content of the jury’s question to presume a reasonable likelihood that the jury applied some lesser standard of proof than beyond a reasonable doubt. Illinois has longstanding precedent stating that neither the court nor counsel can define “reasonable doubt” because it is self-defining, but many recent cases include jury questions asking for a definition, and involve differing rulings about how the circuit court should proceed in such a situation. Prosecutor: Katherine Doersch, Assistant Attorney General, Chicago. Defense counsel: Bruce Kirkham, Assistant Appellate Defender, Elgin.

VI. EVIDENCE & ARGUMENT

A. RAPE SHIELD STATUTE

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**No. 115102

People v. Ronald Patterson, State appeal allowed 1/30/13 from 2012 IL App (1st) 101573, 975 N.E.2d 1127 (Sept. 26, 2012)

Whether the appellate court erred in holding that the confession of a minor in DCFS wardship and custody must be suppressed given absence of notice to his non-custodial parents even though the Juvenile Court Act allows notice to legal guardians. In the same vein, whether the appellate court erred in holding that the confession was involuntary given the absence of a concerned adult although there was no evidence of coercion or mistreatment. Whether the appellate court misapplied the Rape Shield statute, allowing defendant to introduce evidence of the victim’s sexual history to show an alternate explanation for physical evidence of assault that was presumptively inadmissible. Whether defense counsel was ineffective for failing to present evidence of defendant’s mental impairment in support of his claim that his confession was involuntary (cross-appeal claim). Whether Illinois’s automatic transfer statute (705 ILCS 5/130-1(a)) – along with mandatory adult sentencing, mandatory consecutive sentencing, and truth in sentencing (separately or cumulatively) – violate the Eighth Amendment, Illinois’s Proportionate Penalties Clause, and the Due Process Clause (cross-appeal claim). Supreme Court answer: The Court held that the minor’s confession need not be suppressed given the absence of notice or due to involuntariness. The Court found that the police made a “reasonable” attempt to notify a proper person as required by statute, and that the conduct of the youth officer was not improper. Moreover, the statute mandates neither that a concerned adult be present for questioning nor that actual notice be provided before questioning begins. Relatedly, the Court held that counsel was not ineffective at the suppression hearing because of a lack of prejudice in light of overwhelming evidence. The Court also rejected the constitutional challenges to the automatic transfer statute. The statute did not violate the Due Process Clause. The Court already rejected such a challenge, and recent U.S. Supreme Court precedent on Eighth Amendment protections for juveniles (e.g., Miller v. Alabama) did not warrant a different conclusion. The Court also found no Eighth Amendment or Proportionate Penalties violation because the statute was not punitive. But the majority (and the dissent) urged the legislature to reconsider the mandatory nature of the statute. Finally, the Court reversed the appellate court and held that the circuit court did not abuse its discretion in excluding evidence of the victim’s sexual history. Justice Theis concurred with the majority, except that she dissented and would have held that the automatic transfer statute violates the Eighth Amendment and the Proportionate Penalties Clause because it is punitive, and it is cruel in light of evolving standards of decency about juvenile punishment reflected in cases such as Miller.

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Prosecutor: Douglas Harvath, Assistant State’s Attorney, Cook County. Defense counsel: Christopher Kopacz, Assistant Appellate Defender, Chicago. Opinion: 10/17/14—appellate court judgment reversed; Justice Theis dissenting.

B. SUFFICIENCY OF EVIDENCE

No. 117424

People v. Onaffia McFadden, State appeal allowed 5/28/14 from 2014 IL App (1st) 102939 (Nov. 30, 2012) Whether the appellate court erred in reversing defendant’s unlawful use of a weapon by a felon conviction because it was predicated upon prior convictions for the Class 4 form of aggravated unlawful use of a weapon (AUUW) declared void in People v. Aguilar, 2013 IL 112116. Prosecutor: John E. Nowak, Assistant State’s Attorney, Cook County. Defense counsel: Pamela Rubeo, Assistant Appellate Defender, Chicago.

C. FRYE

**No. 116306

In re Detention of John New, Jr., State appeal allowed 11/27/13 from 2013 IL App (1st) 111556, 992 N.E.2d 519 (June 12, 2013) Whether the appellate court erred in holding that the State’s SVP expert’s diagnosis of paraphilia not otherwise specified (sexually attracted to adolescent males) (a/k/a hebephilia) should have been subject to a Frye hearing because such hearings are supposed to be only for scientific principles or methodologies, not final conclusions. Supreme Court answer: The Court held that the diagnosis of hebephilia is subject to Frye, and that there was an inadequate basis for the court to evaluate general acceptance in the first instance. As a result, the Court remanded to the circuit court for a Frye hearing. Prosecutor: Erica Seyburn, Assistant Attorney General, Chicago. Defense counsel: Stephen Potts, Des Plaines. Opinion: 11/20/14—appellate court judgment affirmed; cause remanded to circuit court.

D. PRIOR INCONSISTENT STATEMENT

No. 116512 People v. Marcel Simpson, State appeal allowed 11/27/13 from 2013 IL App (1st) 111914, 993 N.E.2d 527 (June 19, 2013) Whether the appellate court erred in finding ineffective assistance of counsel for failing to object to presentation of a witness’s videotaped prior inconsistent statement in which defendant admitted that he killed the victim that the court found was inadmissible because the witness had personal knowledge only of defendant’s statement, not the crime. Prosecutor: Janet Mahoney, Assistant State’s Attorney, Cook County. Defense counsel: Megan E. Ledbetter, Assistant Appellate Defender, Chicago.

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E. CONFRONTATION CLAUSE/CRAWFORD v. WASHINGTON

No. 116949 People v. John Barner, defense appeal allowed 1/29/14 from 2013 IL App (1st) 063738-U (Oct. 11, 2013) Whether a DNA profile created by police enforcement personnel, after a suspect has been identified and targeted, is testimonial under Crawford. More specifically, this case involved testing and retesting of the same DNA material, the latter done using the more comprehensive STR testing for the purpose of building a case with suspect Barner’s known DNA profile. Additionally, four of the five non-testifying experts were employees of the Illinois State Police, whose task is to help solve crimes. Prosecutor: Amy Watroba Kern, Assistant State’s Attorney, Cook County. Defense counsel: Pamela Rubeo, Assistant Appellate Defender, Chicago.

F. HEARSAY ADMISSIBILITY

**No. 116231

People v. Darren Denson, defense appeal allowed 9/25/13 from 2013 IL App (2d) 110652, 1 N.E.3d 27 (May 23, 2013) Whether the appellate court erred in holding that defense counsel had not preserved an issue for appellate review by objecting to the opposite party’s motion in limine, arguing against it at a pre-trial motion hearing, and including an objection in the post-trial motion because defense counsel did not file his own motion in limine and did not object at trial. Whether multiple co-conspirator statements and a prior consistent statement were admissible. Supreme Court answer: The Court disagreed with both of the appellate court’s bases for finding forfeiture, holding that in criminal cases, an issue is preserved for appeal if it is either litigated through a motion in limine or is the subject of a trial objection and is included in a posttrial motion. The Court ultimately affirmed the convictions, holding that the hearsay statements were admissible or that any error in their admission was harmless by adopting the appellate court’s analysis in full. Prosecutor: Leah Bendik, Assistant Attorney General, Chicago. Defense counsel: Christopher McCoy, Assistant Appellate Defender, Elgin. Opinion: 11/20/14—appellate court judgment affirmed.

VII. ASSISTANCE OF COUNSEL

A. EFFECTIVENESS OF COUNSEL

**No. 115102

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People v. Ronald Patterson, State appeal allowed 1/30/13 from 2012 IL App (1st) 101573, 975 N.E.2d 1127 (Sept. 26, 2012)

Whether the appellate court erred in holding that the confession of a minor in DCFS wardship and custody must be suppressed given absence of notice to his non-custodial parents even though the Juvenile Court Act allows notice to legal guardians. In the same vein, whether the appellate court erred in holding that the confession was involuntary given the absence of a concerned adult although there was no evidence of coercion or mistreatment. Whether the appellate court misapplied the Rape Shield statute, allowing defendant to introduce evidence of the victim’s sexual history to show an alternate explanation for physical evidence of assault that was presumptively inadmissible. Whether defense counsel was ineffective for failing to present evidence of defendant’s mental impairment in support of his claim that his confession was involuntary (cross-appeal claim). Whether Illinois’s automatic transfer statute (705 ILCS 5/130-1(a)) – along with mandatory adult sentencing, mandatory consecutive sentencing, and truth in sentencing (separately or cumulatively) – violate the Eighth Amendment, Illinois’s Proportionate Penalties Clause, and the Due Process Clause (cross-appeal claim). Supreme Court answer: The Court held that the minor’s confession need not be suppressed given the absence of notice or due to involuntariness. The Court found that the police made a “reasonable” attempt to notify a proper person as required by statute, and that the conduct of the youth officer was not improper. Moreover, the statute mandates neither that a concerned adult be present for questioning nor that actual notice be provided before questioning begins. Relatedly, the Court held that counsel was not ineffective at the suppression hearing because of a lack of prejudice in light of overwhelming evidence. The Court also rejected the constitutional challenges to the automatic transfer statute. The statute did not violate the Due Process Clause. The Court already rejected such a challenge, and recent U.S. Supreme Court precedent on Eighth Amendment protections for juveniles (e.g., Miller v. Alabama) did not warrant a different conclusion. The Court also found no Eighth Amendment or Proportionate Penalties violation because the statute was not punitive. But the majority (and the dissent) urged the legislature to reconsider the mandatory nature of the statute. Finally, the Court reversed the appellate court and held that the circuit court did not abuse its discretion in excluding evidence of the victim’s sexual history. Justice Theis concurred with the majority, except that she dissented and would have held that the automatic transfer statute violates the Eighth Amendment and the Proportionate Penalties Clause because it is punitive, and it is cruel in light of evolving standards of decency about juvenile punishment reflected in cases such as Miller. Prosecutor: Douglas Harvath, Assistant State’s Attorney, Cook County. Defense counsel: Christopher Kopacz, Assistant Appellate Defender, Chicago. Opinion: 10/17/14—appellate court judgment reversed; Justice Theis dissenting.

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No. 116402 People v. Maria Pacheco, defense appeal allowed 9/25/13 from 2013 IL App (4th) 110409, 991 N.E.2d 896 (June 24, 2013) Whether the mandatory transfer statute (705 ILCS 405/5-130) (requiring 15 & 16 y.o. juveniles charged with certain offenses such as murder to be tried in adult court) is unconstitutional in light of Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 130 S. Ct. 2011 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), that all gave juveniles greater constitutional protections than adults in the criminal justice system. Whether counsel was ineffective for conceding minor was guilty of felony murder and failing to impeach State’s witness. Whether minor should be deemed guilty of felony murder alone since only a general verdict form was submitted to the jury. Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago. Defense counsel: Jacqueline Bullard, Assistant Appellate Defender, Springfield.

No. 116512 People v. Marcel Simpson, State appeal allowed 11/27/13 from 2013 IL App (1st) 111914, 993 N.E.2d 527 (June 19, 2013) Whether the appellate court erred in finding ineffective assistance of counsel for failing to object to presentation of a witness’s videotaped prior inconsistent statement in which defendant admitted that he killed the victim that the court found was inadmissible because the witness had personal knowledge only of defendant’s statement, not the crime. Prosecutor: Janet Mahoney, Assistant State’s Attorney, Cook County. Defense counsel: Megan Ledbetter, Assistant Appellate Defender, Chicago.

B. KRANKEL

**No. 117142 People v. John Willie Jolly, defense appeal allowed 3/26/14 from 2013 IL App (4th) 120981, 999 N.E.2d 735 (Dec. 10, 2013)

Whether the People may participate in a hearing held under People v. Krankel, 102 Ill. 2d 181 (1984), and if not, whether the error requires automatic reversal or may be considered harmless. By way of background, a Krankel hearing is required where a defendant alleges ineffective assistance of counsel after trial. At such a hearing, a trial court inquires into the factual bases for the ineffective assistance claim and decides whether to appoint new counsel, who would then represent the defendant at an evidentiary hearing on defendant’s claim. Supreme Court answer: The Court held the State should never be permitted to take an adversarial role against a pro se defendant at a preliminary Krankel inquiry. This was reversible error. Because a defendant is not appointed new counsel at a preliminary Krankel inquiry, it is critical that the State’s participation, if any, be de minimis. As a remedy

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here, the cause was remanded for a new preliminary Krankel inquiry. Prosecutor: Erica Seyburn, Assistant Attorney General, Chicago. Defense counsel: Martin J. Ryan, Assistant Appellate Defender, Springfield. Opinion: 12/04/14—appellate and circuit court judgments reversed.

VIII. SENTENCING

A. SENTENCE ENHANCEMENT/DOUBLE ENHANCEMENT

No. 117267 People v. Johnny Taylor, defense appeal allowed 3/24/14 from 2013 IL App (4th) 110633-U (Jan. 2, 2014) Whether a defendant who enters into a negotiated guilty plea for armed robbery while possessing a handgun, and whose sentence incorporates the sentencing enhancement found unconstitutional under People v. Hauschild, 226 Ill. 2d 63 (2007), should be allowed to withdraw that guilty plea or have his sentence reduced on postconviction review, where the Court held in People v. Blair, 2013 IL 114122, that the statute was not void ab initio and that legislative amendments subsequent to defendant’s crime cured the constitutional infirmity. Prosecutor: Garson Fischer, Assistant Attorney General, Chicago. Defense counsel: Paul Alexander Rogers, Assistant Appellate Defender, Elgin.

B. VOID SENTENCE/CIRCUIT COURT JURISDICTION

No. 116916 People v. Steven Castleberry, defense appeal allowed 1/29/14 from 2013 IL App (1st) 111791-U (Oct. 29, 2013) Whether the court should remedy the fact that it applies two different standards for assessing a circuit court’s jurisdiction. In criminal law, the Court holds that a sentence outside of statutory requirements is void, and the circuit court lacks authority to enter it (People v. Arna, 168 Ill.2d 107, 113 (1995)), while in all other areas of the law, the circuit court’s authority is not limited by the legislature because it is granted by Illinois Constitution 1970, article VI, section 9 (Belleville Toyota, Inc. v. Toyota Motor Sales, Inc., 199 Ill. 2d 325, 340 (2002)). The PLA asks the court to reconsider the Arna void judgment doctrine. Prosecutor: Alan Spellberg, Assistant State’s Attorney, Cook County. Defense counsel: Therese Bissel, Assistant Appellate Defender, Chicago. No. 118151 People v. Dennis Thompson, No. 118151, defense appeal allowed 11/26/14 from 2014 IL App (1st) 121729-U (June 20, 2014) Whether defendant’s constitutional challenge could be raised for the first time on appeal from an untimely petition for relief from judgment because his sentence was void. Defendant claimed his mandatory natural life sentence for multiple murders was unconstitutional because the sentencing statute did not allow for consideration of any

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factors in mitigation such as the offender’s youth, social background and mental state. Prosecutor: Cook County State’s Attorney’s Office. Defense counsel: Tomas Gonzalez, Assistant Appellate Defender, Chicago.

C. PROPORTIONATE PENALTIES

No. 118023

People v. Dennis Ligon, State appeal allowed 11/26/14 from 2014 IL App (1st) 120913, 14 N.E.3d 497 (June 23, 2014)

Whether the appellate court erred in holding that defendant’s life sentence was unconstitutionally disproportionate. More specifically, the court held that defendant’s class X felony conviction for aggravated vehicular hijacking while armed with a dangerous weapon, and its mandatory life sentence under the Habitual Criminal Act, were unconstitutionally disproportionate to the 6-30 year class X felony sentencing range that would have applied if he had been convicted of the class 1 felony offense of armed violence predicated on vehicular hijacking while armed with a Category III weapon (a bludgeon) given that the two offenses had identical elements but disparate penalties. There are two issues within this holding about which appellate case law is split. First, whether a higher sentencing required through the Habitual Criminal Act should even be subject to proportionate penalties analysis given its consideration of prior criminal history, and second, whether the BB gun involved in this case qualified as a Category III weapon (a bludgeon).

Prosecutor: Kathryn Schierl?, Assistant State’s Attorney, Cook County. Defense counsel: Patrick Cassidy, Assistant Appellate Defender, Chicago.

D. NATURE OF PROBATION CONDITIONS

No. 118347 People v. Raymond Goossens, defense appeal allowed 11/26/14 from 2014 IL App (3d 120680, 18 N.E.3d 972 (Sept. 30, 2014) Whether, under 730 ILCS 5/5-6-3(b), the trial court’s imposition of conditions on probation must be related to the specific offense for which the defendant is sentenced. In this case, the defendant was convicted of intimidation after he, as a police sergeant, threatened not to respond to 911 calls from the Cordova Dragway while two former police officers worked there; one probation condition imposed was that he become current on his child support payments due from a separate civil case. Prosecutor: Illinois Attorney General’s Office. Defense counsel: Rikin Shah, Assistant Appellate Defender, Elgin.

IX. POST-TRIAL PROCEEDINGS

A. KRANKEL HEARING

**No. 117142

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People v. John Willie Jolly, defense appeal allowed 3/26/14 from 2013 IL App (4th) 120981, 999 N.E.2d 735 (Dec. 10, 2013)

Whether the People may participate in a hearing held under People v. Krankel, 102 Ill. 2d 181 (1984), and if not, whether the error requires automatic reversal or may be considered harmless. By way of background, a Krankel hearing is required where a defendant alleges ineffective assistance of counsel after trial. At such a hearing, a trial court inquires into the factual bases for the ineffective assistance claim and decides whether to appoint new counsel, who would then represent the defendant at an evidentiary hearing on defendant’s claim. Supreme Court answer: The Court held the State should never be permitted to take an adversarial role against a pro se defendant at a preliminary Krankel inquiry. This was reversible error. Because a defendant is not appointed new counsel at a preliminary Krankel inquiry, it is critical that the State’s participation, if any, be de minimis. As a remedy here, the cause was remanded for a new preliminary Krankel inquiry. Prosecutor: Erica Seyburn, Assistant Attorney General, Chicago. Defense counsel: Martin J. Ryan, Assistant Appellate Defender, Springfield. Opinion: 12/04/14—appellate and circuit court judgments reversed.

X. APPEALS A. PRESERVING ISSUES FOR APPELLATE REVIEW

**No. 116231

People v. Darren Denson, defense appeal allowed 9/25/13 from 2013 IL App (2d) 110652, 1 N.E.3d 27 (May 23, 2013) Whether the appellate court erred in holding that defense counsel had not preserved an issue for appellate review by objecting to the opposite party’s motion in limine, arguing against it at a pre-trial motion hearing, and including an objection in the post-trial motion because defense counsel did not file his own motion in limine and did not object at trial. Whether multiple co-conspirator statements and a prior consistent statement were admissible. Supreme Court answer: The Court disagreed with both of the appellate court’s bases for finding forfeiture, holding that in criminal cases, an issue is preserved for appeal if it is either litigated through a motion in limine or is the subject of a trial objection and is included in a posttrial motion. The Court ultimately affirmed the convictions, holding that the hearsay statements were admissible or that any error in their admission was harmless by adopting the appellate court’s analysis in full. Prosecutor: Leah Bendik, Assistant Attorney General, Chicago. Defense counsel: Christopher McCoy, Assistant Appellate Defender, Elgin. Opinion: 11/20/14—appellate court judgment affirmed. No. 117094

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People v. Daniel Belknap, State appeal allowed 3/26/14 from 2013 IL App (3d) 110833 (Nov. 19, 2013) Whether the court should reexamine its plain error doctrine, specifically to determine: (1) whether the closely balanced (first) prong of the plain error doctrine is moving to a more qualitative, contextual approach; and (2) whether a court should not provide relief under the plain error doctrine unless an error occurred, the evidence was closely balanced AND the error likely tipped the scales of justice against defendant. Prosecutor: Jay Schleppenbach, Assistant Attorney General, Chicago. Defense counsel: Andrew J. Boyd, Assistant Appellate Defender, Ottawa.

B. ADDRESSING UNBRIEFED ISSUES No. 117242

People v. Cavinaugh Hughes, State appeal allowed 5/20/14 from 2013 IL App (1st) 110237, 3 N.E.3d 297 (Dec. 18, 2013)

Whether the appellate court erred in finding one of defendant’s several confessions involuntary due to polygraph examiner trickery, defendant’s age, education, and experience, his exhausted condition given the recent death of his grandfather, and his confusion from ingesting marijuana in the interrogation room.

Whether the appellate court overreached by sua sponte finding involuntariness on a theory not advanced by defendant, reversing all of defendant’s convictions even though defendant did not seek to reverse a murder conviction, and conducting a factual analysis under an unclear standard of review [asks to resolve question left unanswered in People v. Givens, 237 Ill. 2d 311 (2010)]. Prosecutor: Janet Mahoney, Assistant State’s Attorney, Cook County. Defense counsel: Nicole Marie Jones, Assistant Appellate Defender, Chicago.

C. STANDARD OF REVIEW

No. 117242

People v. Cavinaugh Hughes, State appeal allowed 5/20/14 from 2013 IL App (1st) 110237, 3 N.E.3d 297 (Dec. 18, 2013)

Whether the appellate court erred in finding one of defendant’s several confessions involuntary due to polygraph examiner trickery, defendant’s age, education, and experience, his exhausted condition given the recent death of his grandfather, and his confusion from ingesting marijuana in the interrogation room.

Whether the appellate court overreached by sua sponte finding involuntariness on a theory not advanced by defendant, reversing all of defendant’s convictions even though defendant did not seek to reverse a murder conviction, and conducting a factual analysis under an unclear standard of review [asks to resolve question left unanswered in People v. Givens, 237 Ill. 2d 311 (2010)]. Prosecutor: Janet Mahoney, Assistant State’s Attorney, Cook County.

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Defense counsel: Nicole Marie Jones, Assistant Appellate Defender, Chicago.

No. 118278 People v. Anthony Stapinski, defense appeal allowed 11/26/14 from 2014 IL App (3d) 130352-U (July 24, 2014) Whether due process demands dismissal of the indictment or mere suppression of evidence obtained in the course of defendant’s cooperation when charges were brought against him contrary to the terms of a cooperation agreement that defendant made with police. Whether the abuse of discretion or de novo standard of review applies to review of dismissal of charges. Prosecutor: Illinois Attorney General’s Office. Defense counsel: Phyllis Perko, West Dundee.

XI. POSTCONVICTION CHALLENGES/REMEDIES

A. POST-CONVICTION HEARING ACT

No. 113135 People v. James Allen, defense appeal allowed 5/27/14 from 2011 IL App (1st) 093438-U (Aug. 9, 2011) Whether a pro se postconviction petition can be summarily dismissed at the first stage solely because its supporting evidentiary affidavit was not notarized. If so, whether the dismissal should be with prejudice. Prosecutor: Brian Hodes, Assistant State’s Attorney, Cook County. Defense counsel: Brian A. McNeil, Assistant Appellate Defender, Chicago. **No. 115946 People v. William Smith, defense appeal allowed 9/25/13 from 2013 IL App (1st) 111069-U (Apr. 11, 2013) What pleading standard applies to a pro se postconviction petitioner’s request for leave to file a successive petition: the first-stage standard or a stricter one. Supreme Court answer: The Court explained that the legislature has specified that cause for failure to raise the new claim earlier and prejudice resulting from that failure must be shown in order for leave to file to be granted, but it has not provided any further details for resolving a “cause and prejudice” determination. The Court said that this demonstration must take place prior to the first stage of the proceeding, i.e., on the pleadings. The standard is higher here than at the first stage of an original postconviction hearing. The petitioner must submit enough in the way of documentation to allow a circuit court to make a determination. Leave to file a successive petition should be denied where the claims fail as a matter of law or the supporting documentation is insufficient to justify further proceedings.

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Prosecutor: Michelle Grimaldi Stein, Assistant State’s Attorney, Cook County. Defense counsel: Brian Carroll, Assistant Appellate Defender, Chicago. Opinion: 12/04/14—appellate court judgment affirmed. No. 117267 People v. Johnny Taylor, defense appeal allowed 3/24/14 from 2013 IL App (4th) 110633-U (Jan. 2, 2014) Whether a defendant who enters into a negotiated guilty plea for armed robbery while possessing a handgun, and whose sentence incorporates the sentencing enhancement found unconstitutional under People v. Hauschild, 226 Ill. 2d 63 (2007), should be allowed to withdraw that guilty plea or have his sentence reduced on postconviction review, where the Court held in People v. Blair, 2013 IL 114122, that the statute was not void ab initio and that legislative amendments subsequent to defendant’s crime cured the constitutional infirmity. Prosecutor: Garson Fischer, Assistant Attorney General, Chicago. Defense counsel: Paul Alexander Rogers, Assistant Appellate Defender, Elgin. No. 117695 People v. Danny Kuehner, defense appeal allowed 9/24/14 from 2014 IL App (4th) 120901, 8 N.E.3d 1148 (Apr. 10, 2014) In People v. Greer, 212 Ill. 2d 192 (2004), the Court held that appointed postconviction counsel may withdraw from representation when all of the petitioner’s claims are frivolous and patently without merit. In Greer, the petition had advanced to the second stage and counsel was appointed because the circuit court failed to rule on the petition within 90 days. The issue here is what is to be done when appointed counsel moves to withdraw after the circuit court advances the petition to the second stage upon ruling that the petition was not frivolous and patently without merit. (The appellate court allowed withdrawal). Prosecutor: Sameena Mohammed, Assistant Attorney General, Chicago. Defense counsel: Kieran Wiberg, Assistant Appellate Defender, Chicago. No. 118123 People v. McClain Sanders, defense appeal allowed 11/26/14 from 2014 IL App (1st) 111783, 14 N.E.3d 1084 (June 26, 2014)

Whether a trial court may find, at the second stage of postconviction review, that a claim based on testimony in another related case is contradicted by credibility findings in the other case at which the instant petitioner was not a party. The general rule is that during the second stage, all well-pled allegations are taken as true unless positively rebutted by the record, so the question here is whether that principle is limited to the record in the petitioner’s proceedings and not separate cases. Prosecutor: Tasha Marie Kelly?, Assistant State’s Attorney, Cook County. Defense counsel: Stephen Gentry, Assistant Appellate Defender, Chicago.

B. PETITIONS FOR RELIEF FROM JUDGMENT (735 ILCS 5/2-1401)

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No. 117709 People v. Kelvin Carter, State appeal allowed 9/24/14 from 2014 IL App (1st) 122613, 8 N.E.3d 441 (Apr. 22, 2014) Whether the appellate court erred by reversing the sua sponte dismissal of a petition seeking relief from judgment via 735 ILCS 5/2-1401, on the rationale that the dismissal was premature because the petitioner failed to properly serve the State (respondent). Petitioner mailed his 2-1401 petition to the circuit court and the State through regular mail even though Supreme Court Rule 105(b) required certified or registered mail under the circumstances. Although an attorney for the State was present when the petition was dismissed, the appellate court held that petitioner’s failure to effect proper service required the State to affirmatively waive service before sua sponte dismissal was appropriate. Petitioner raised the issue of his own failure to effect proper service on appeal. Prosecutor: Brian Hodes, Assistant State’s Attorney, Cook County. Defense counsel: Jennifer Bontrager, Assistant Appellate Defender, Chicago. No. 118151 People v. Dennis Thompson, No. 118151, defense appeal allowed 11/26/14 from 2014 IL App (1st) 121729-U (June 20, 2014) Whether defendant’s constitutional challenge could be raised for the first time on appeal from an untimely petition for relief from judgment because his sentence was void. Defendant claimed his mandatory natural life sentence for multiple murders was unconstitutional because the sentencing statute did not allow for consideration of any factors in mitigation such as the offender’s youth, social background and mental state. Prosecutor: Cook County State’s Attorney’s Office. Defense counsel: Tomas Gonzalez, Assistant Appellate Defender, Chicago.