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Criminal Nuggets


Oct 31, 2016



Illinois Case Law Updates for February 2015 - Fast and convenient summary of recent Illinois criminal court cases created just for you. Click Here to Access Your February Illinois Case List Now!   Get Criminal Case List Now! This Case List PDF Download is made available for the busy practitioner.

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Illinois Case Law Updates February 2015The Illinois Supreme Court had some things to say about the criminal law. Remember, the case list I created for you features a one page clickable summary of the top February cases AND a short summary of every Februay case.

Also, make sure to subscribe to the podcast and download the audio round-up for February 2015.

Illinos Supreme Court SENTENCING Decisions

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Il. Sup. Ct.[/caption]

This never happens. Illinois Supreme court upholds trial courts ruling that AUUW (the only non-probationable class 4 felony known to man) is unconstitutional. Go to case.

People v. Aguilar, 2013 IL 112116, is further explained and its limited. Minors may definitely be banned from possessing guns. A FOID requirement is also legal. However, the non-probationable status of 24-1.6(d)(2) mandating prison for 18 year olds or older is void because it references sections that are clearly unconstitutional under Aguilar. Defendant’s misdemeanor conviction stands.  People v. Mosley

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Il. Sup. Ct.[/caption]

Illinois Supreme Court says that two separate convictions (for possession of the gun and the bullets in the gun) are proper under one-act, one-crime principles when a Defendant is armed with a loaded gun. Go to case.

Cops take a gun off of Defendant in a gas station store. Defendant is subsequently convicted of armed habitual criminal based on the gun and UUW Felon based on the ammunition in the gun. “Under the plain meaning of this statutory language, the UUW by a felon statute unambiguously authorizes separate convictions when a felon possesses a loaded firearm, a conviction based on the firearm and a conviction based on the ammunition inside that firearm. The language not only criminalizes the possession of any firearm or any firearm ammunition by a felon, but also clarifies that the possession of each firearm or firearm ammunition by a felon constitutes a single and separate violation.” ¶ 36 The charging instrument clearly illustrated the State’s intent to treat Defendant’s conduct as distinct and separate acts. It would be a different story if the indictment merely referred to a “loaded gun.”  People v. Almond

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Il. Sup. Ct.[/caption]

Illinois Supreme Court says that People v. White, 2011 IL 109616, does not apply retroactively. Go to case.

White held that when the factual basis for a plea agreement which is accepted by the circuit court establishes that the defendant is subject to a mandatory sentencing enhancement, the court must impose it, even if the plea agreement between the State and the defendant included the condition that the State would not pursue the enhancement. People v. Smith

Professional Responsibility

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

Appellate court reverses trial court's finding that defense attorney had an ethical lapse in judgement. Go to case.

Defense attorney was defending one inmate and talking to another about representation. The inmate who was on the fence solicited the client inmate to commit murder. The State’s Attorney caught wind of this and asked the attorney if the client would wear a wire. Client had already agreed to do this and attorney was only essentially informed that all this was going on. Attorney immediately informs family of murder solicitor that he won’t take the case. Defendant is charged with solicitation of murder and files a motion to suppress the overhead recordings claiming his prospective attorney violated his ethical duties. Appellate court held that it was error to grant this motion because Defendant did not meet his burden in establishing that there was a violation of Rule 1.18 of the Illinois Rules of Professional Conduct. People v. Shepherd

Traffic

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 5th Dist.[/caption]

Violation of Rule 552 leads to traffic ticket dismissal; Officer basically admits to systematic and chronic violations. Go to case.

Defendant’s pro se motion to dismiss his speeding ticket was granted after it was filed 4 days after it was issued. Officer said there is a gap because tickets are only brought to the courthouse twice per week. He said it was impossible to file the tickets the next day. The cop said Rule 552 is not a mandate. The circuit court clearly saw there was a clear and consistent violation of a Supreme Court Rule, notwithstanding the “directory” nature of this rule. People v. Geiler 

Accountability

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

Summer block party gets out of hand when Defendant and his buddies start shooting all over the place, nonetheless Defendant is not guilty of murder by accountability. Go to Case.

There was no evidence that the bullet that killed the victim came from a gun shot by a person with the same criminal design as defendant. At best all the state showed was that multiple people were committing multiple crimes simultaneously. State choose to go with an accountability murder charge and forego all other charges. That was their mistake. People v. Cowart

Sentencing

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

Notice under section 725 ILCS 5/111-3(c) for aggravated kidnapping was not required because the only offense Defendant could be guilty of was a felony. Go to case.

I think something else is happening here. This decision seems to broaden the decision under People v. Easley, 2014 IL 115581, ¶¶ 19, 22-26 into a different space. This court held that when a person commits a domestic battery and they have a prior domestic battery then only a felony conviction is statutorily available. See ¶ 44. Thus, the State was not seeking an enhanced sentence, but rather, the imposition of the only sentence statutorily permissible. This kind of sounds like felonies are becoming “automatic” without any procedural notice by the State. But in Easley, the jury decided on the existence of the prior. Here, the priors were admitted at sentencing. People v. Sumler

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 5th Dist.[/caption]

This mandatory life sentence in a double murder committed by a 15 year old can’t stick without the trial court taking into account the Defendant’s age. Go to case.

Defendant was taking antidepressants, alcohol, and marijuana when he committed the home invasions. In the end though, he basically was caught by the victims during a break in so he shot them. However, Miller v. Alabama, S.Ct. 2455, 2460(2012) requires a remand for new sentencing. Life sentence for a juvenile cannot be mandatory but only discretionary. Voluntariness of juvenile confession also discussed. People v. Baker

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Defendant’s attempt to get out of paying the remainder of his restitution simply because 5 years has passed failed. Go to case.

Defendant stole more than $400,000 from elderly malpractice victim. He stopped paying restitution then filed motions to void the trial court's contempt of court finding and purge order. “It is true that under the June 2006 restitution order defendant was not obligated to make additional monthly payments beyond those that were due during the five-year period. But it does not follow that the order became unenforceable as to unpaid amounts that became due during the five-year period.” Also, remember a restitution order gives rise to a judgment lien that is enforceable in the same manner as a lien arising from a civil judgment. See 730 ILCS 5/5-5-6(m); People v. Mitchell, 241 Ill. App. 3d 1094, 1098 (1993) ¶ 7. People v. Bruun

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Is there a right to a public hearing on a revocation of probation hearing? Go to case.

Spectors were accused of harassing the State’s witnesses in a probation revocation hearing alleging new criminal conduct. Judge throws them out of court. Defendant did not object at that time. Trial judge’s order stands. Plain-error review is reserved for errors that are clear or obvious based on well settled law. “The pertinent law is not sufficiently settled to permit review under the plain-error rule.” ¶ 11.  People v. Williams

Search & Seizure

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

This illegal pat down does not lead to suppression of evidence (no drugs recovered) but does require vacating a resisting arrest conviction because the officer was not acting in an “authorized” capacity. Go to case.

Defendant was walking on the paved portion of a highway median on a hot day. Cop pulls up on him with overhead lights. Defendant says is talking on his phone, tells cop he is going to McDonald’s and begins to put his other hand in his pocket. Cop grabs the hand and that is when hell breaks loose. Defendant pulls away, taser comes out and Defendant is tazed with no effect once but cop gets him in the leg as he is trying to get away. He then is handcuffed. State argued it was all Defendant’s fault because, “It was defendant who “changed the nature” of the encounter by putting his hand in his pocket and disregarding the officer’s commands.” ¶ 8. Section 720 ILCS 5/7-7 says that a Defendant may not resist an unlawful arrest. However, that section only applies to the actual arrest. Here, Defendant resisted an unlawful pat down. No community caretaking here because Defendant was not in distress (not until the cops started messing with him). People v. Slaymaker

DUI 

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Defendant’s statutory summary suspension stands notwithstanding the fact the sworn report the officer gave him did not list a date for when the warning was given. Go to Case.

The officer later amended the report that was sent to the SOS. 625 ILCS 5/2-118.1(a) requires written notice of suspension to Defendant. The SOS had enough information to determine that notice was given because “the sworn report listed the date that defendant refused to submit to testing, indicated that notice of the suspension was served on defendant immediately, and stated that it was signed on the same date.” ¶ 14. People v. McLeer

Speedy Trial Violation

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 5th Dist.[/caption]

State failed to try Defendant within 120 days after he demanded a speedy trial;  but should all the charges he was facing been dismissed or just the one the state initially elected on? Go to Case.

Trial court dismissed missed all three charges Defendant was being held on. State elected on the DWLR, but did not hold a trial on any of the pending unrelated charges. Nonetheless, Defendant’s right to a speedy trial under 725 ILC 5/103-5(e) was violated for each and every charge he was facing. It was proper to dismiss all of them with prejudice. Tolling under 103-5(e) only occurs if the State actually has a trial on the elected charge within the required time period. The mere election of a charge alone is insufficient for proper tolling. “Thus, section 103-5(e) provides for the tolling of the speedy-trial clock and the additional time as long as the State proceeds to trial or obtains an adjudication of guilt on one of the charges within the initial 120-day period. See generally People v. Quigley, 183 Ill. 2d 1, 14-15, 697 N.E.2d 735, 741-42 (1998).” ¶ 14. People v. Raymer

Evidence

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 5th Dist.[/caption]

Murder conviction upheld, crime occurred in 1957, Defendant’s mother’s death wish hearsay that “John did it” ruled harmless error. Go to case.

In 1957 a seven year old girl disappeared from rural Sycamore. Her body was later discovered about four months later. The state of the body made it impossible to determine a cause of death but an autopsy years later found that a “stabbing” could have occurred. The case against Defendant essentially consisted of several jailhouse snitches and occurrences witness who put Defendant in the town the night of the disappearance. Defendant’s mother was disoriented, confused and heavily drugged up the night she died and said, “John did it.” Court also discusses Hearsay Rule 803(16) involving ancient documents. People v. McCullough

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 4th Dist.[/caption]

Pro se defendant allowed his video interrogation to be played unedited which meant the jury heard about his drug use, prior drug sells, and maybe he knows the guys committing all the shootings. Go to case.

The case against Defendant that he sold drugs to a police was so overwhelming, however, that the appellate court didn’t even need to consider if an error occurred. The court noted that proceeding without an attorney in a criminal matter is unwise. Defendant will be held to the same legal standard as an attorney. Also, noteworthy in this case is the notion that it is improper for the sentencing judge to consider that Defendant received compensation for his drug deal because that is an inherent in the offense. See People v. Atwood, 193 Ill. App. 3d 580, 592, 931 N.E.2d 1362 (1990). People v. Scott

Defenses

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

Insanity defense fails. Defendant was convicted of attempted first degree murder for shooting his 12 year old son in the head. Go to case.

Defendant argued he suffered from paranoid schizophrenia and he was unable to appreciate the criminality of his actions. Two experts testified. One testified the Defendant did not appreciated the criminality of his conduct; the other testified that he did. It was harmless error for the State to argue that when Defendant was arrested the doctors found nothing wrong with him. Technically, the jail medical records were used by the experts to form their opinions and those records were not admitted substantively. Defendant’s heavy drinking contributed to court’s finding that this was not a closely balanced case. People v. Tademy

 

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

In a shooting over a dispute for a location to sells shoot in a parking lot, Defendant’s witnesses testify that Defendant did not do the shooting; some other guy did it. Go to case.

It was not error to deny Defendant’s request for self defense instruction when he did not plead self defense nor was there any evidence by Defendant that he actually shot the victim. Yes, very slight evidence is sufficient to claim self defense. However, when the State’s evidence does not raise the issue it is incumbent on the Defense to do so. That did not happen here. This is another example of a Defendant relying on this over broad language to his detriment. Generally, it is quite hard to have your self defense cake and also deny that you did it. People v. Lewis

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

Defendant was required to be present at trial in order to claim that there was ineffective assistance of counsel and raise an affirmative defense of entrapment. Go to Case.

Proper to dismiss this postconviction petition. Gang informant in this case actually takes gun clip out of a gun so the Co-Defendant doesn’t actually kill anyone. People v. Montes

Guilty Plea

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

Courts continue to go different ways with the issue of admonishing a Defendant on sex registration at the time of a plea. Go to case.

Here, the court held that mandatory sex offender registration as a collateral consequence, rather than a direct one. Here Defendant did not argue that his attorney failed to advise him (so no ineffective assistance claim) but instead argued the trial court failed to admonish him on having to register. Therefore,  the plea court was not required to admonish Defendant in regard to registration as a sex offender, the absence of such admonishment does not render his plea unknowing or involuntary. People v. Cowart

Post Sentence Petitions

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Court is serious about appeal deadlines. Go to case.

It was proper to dismiss this appeal as untimely even though Defendant was admonished incorrectly on the timing by the trial judge. The rule in People v. Serio, 357 Ill. App. 3d 806 (2005) creates a conundrum for a defendant.  Here the trial court’s consideration of his pro se motion alleging ineffectiveness filed after the court answered the posttrial motion delayed the notice of appeal more than 30 days after the denial of the first posttrial motion. The trial court misadvised Defendant that the time in which he could appeal was tolled when, it was not. “Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result here is problematic in that respect. However, we do not have the authority to disregard our lack of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order.” ¶ 9 People v. Norton

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

Court is really serious about appeal deadlines. Go to case.

Trial court no longer had jurisdiction over Defendant’s case when he filed his claim of ineffective assistance of counsel more than 30 days after the the final judgement. Further, the mailbox rule under Illinois Supreme Court Rule 12(b)(3) does not cover prison mail but only covers U.S. mail. People v. Shines

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

State has no burden to provide effective counsel when Defendant hires private counsel to file a postconviction petition. Go to case.

Defendant abandons all his substantive issues and only argues that his post conviction petition attorney was ineffective for filing later than two years after the denial of the direct appeal. Per People v. Csaszar, 2013 IL App (1st) 100467 100467, ¶ 18, although a pro se defendant has a right to reasonable assistance from appointed counsel, neither the Act nor case law supported the claim that the State was required to provide reasonable assistance of counsel for any petitioner able to hire his own postconviction counsel. , and therefore defendant failed to state a cognizable claim for relief. See also People v. Anguiano, 2014 IL App (1st) 113458, ¶ ¶ 32, 34 for a case saying that the Act does require a reasonable level of assistance from all counsel. People v. Cotto

Jury Trial

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Juries of less than 12 people are within the sound discretion of the trial court, so no error in denying Defendant's request for a 6 member jury in his double murder trial. Go to case.

Why would you want to waive your jury in a murder trial anyway? Appellate court said that “since it is readily apparent that it would be more difficult for a group of 12 people to reach a unanimous verdict than it would for a group of 6 to reach such a verdict, the defendant’s ability to establish such prejudice would be dubious at best.” No prejudice no error. Also, Defendant was not intimidated into not going pro se before trial. He failed to knowingly and intelligently waive counsel in a clear unequivocal way. Court did what was right by informing Defendant that reappointment of counsel in the middle of trial was unlikely. People v. Jones