Office of the State Appellate Defender

Illinois Criminal Law Digest

July 2021

JAMES E. CHADD

State Appellate Defender

KERRY J. BRYSON

SHAWN O’TOOLE

Deputy State Appellate Defenders, Editors

©Copyright 2021 by the Office of the State Appellate Defender. All rights reserved.

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TABLE OF CONTENTS

APPEAL ........................................................................................................................ 1

People v. Horton, 2021 IL App (1st) 180551 (7/19/21) ............................................................................ 1

People v. Ward, 2021 IL App (2d) 190243 (7/7/21) ................................................................................. 1

BATTERY, ASSAULT & STALKING OFFENSES ................................................. 2

People v. Ward, 2021 IL App (2d) 190243 (7/7/21) ................................................................................. 2

People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21) ......................................................................... 3

COLLATERAL REMEDIES ...................................................................................... 4

People v. Dorsey, 2021 IL 123010 (7/29/21) ............................................................................................ 4

People v. Horton, 2021 IL App (1st) 180551 (7/19/21) ............................................................................ 6

CONFESSIONS ........................................................................................................... 7

People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21) ............................................................................ 7

EVIDENCE ................................................................................................................... 8

People v. Hardimon, 2021 IL App (3d) 180578 (7/22/21) ........................................................................ 8

People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21) ......................................................................... 9

FITNESS TO STAND TRIAL .................................................................................. 11

People v. Lewis, 2021 IL App (3d) 180259 (7/9/21) ............................................................................... 11

HOMICIDE ................................................................................................................. 11

People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21) .......................................................................... 11

INSANITY – MENTALLY ILL – INTOXICATION ............................................... 12

People v. Ferguson, 2021 IL App (1st) 201013 (7/23/21) ...................................................................... 12

JUVENILE PROCEEDINGS ................................................................................... 12

People v. Dorsey, 2021 IL 123010 (7/29/21) .......................................................................................... 12

SEARCH & SEIZURE ............................................................................................... 14

People v. Mueller, 2021 IL App (2d) 190868 (7/8/21) ........................................................................... 14

People v. Hardimon, 2021 IL App (3d) 180578 (7/22/21) ...................................................................... 14

SENTENCING ........................................................................................................... 15

People v. Dorsey, 2021 IL 123010 (7/29/21) .......................................................................................... 15

People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21) .......................................................................... 17

SEX OFFENSES ........................................................................................................ 17

People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21) ....................................................................... 17

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STATUTES ................................................................................................................. 19

People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21) .......................................................................... 19

WITNESS .................................................................................................................... 20

People v. Lewis, 2021 IL App (3d) 180259 (7/9/21) ............................................................................... 20

People v. Pacheco, 2021 IL App (3d) 150880-B (7/12/21) ..................................................................... 20

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APPEAL

§2-6(e)(1)

People v. Horton, 2021 IL App (1st) 180551 (7/19/21)

The trial court did not err in denying leave to file a successive post-conviction

petition alleging actual innocence. Defendant failed to present noncumulative

evidence in support of his claim, where a witness’s assertion that he gave the shooting

victim a gun prior to the shooting was cumulative of defendant’s trial testimony that

the victim was armed. The witness’s affidavit corroborated defendant’s trial

testimony, which could be a basis to argue reasonable doubt, but that is not the

standard for establishing a claim of actual innocence.

Further, defendant’s proposed new evidence was not conclusive. The

supporting witness averred that he gave the victim a gun on the night of the shooting,

claimed that the victim went to the scene planning to kill defendant, and explained

that the reason no gun was found on the victim’s body was because another individual

took it and concealed it after the shooting. The proposed new witness was not present

at the shooting and did not indicate that the victim displayed or threatened to use

the gun during the confrontation with defendant. Thus, the evidence fell short of

supporting a claim of self-defense necessary to demonstrate actual innocence.

In reaching its conclusion, the Appellate Court majority relied on two recent

unpublished decisions, People v. Jackson, 2021 IL App (1st) 190406-U, and People

v. Smith, 2021 IL App (1st) 181178-U, as persuasive authority under Illinois

Supreme Court Rule 23(e)(1), as amended effective January 1, 2021.

(Defendant was represented by Assistant Defender Rebecca Levy, Chicago.)

§2-6(e)(1)

People v. Ward, 2021 IL App (2d) 190243 (7/7/21)

Defendant, who was well-known as a vocal critic of local law enforcement, was

involved in a verbal altercation with police officers at the scene of a traffic accident

involving defendant’s teenage son. Defendant’s wife stepped between defendant and

an officer in an effort to diffuse the situation. Defendant pushed her to the side and

continued to argue, at which point he was arrested and charged with domestic battery

based on the push to his wife. Defendant’s wife insisted he did nothing wrong, so the

officer signed the complaint against defendant.

At trial, defendant’s wife described the physical contact in question as similar

to passing someone in a hallway; defendant moved her out of the way, but held on to

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her so she would not fall. She stated that she thought the arrest was a “complete

farce” and that she was not insulted or provoked by the contact.

Whether contact is insulting or provoking is dependent on its effect on the

victim. A defendant cannot be found guilty of battery based on insulting or provoking

contact without some proof that the victim was insulted or provoked. While the victim

need not testify directly to being insulted or provoked by the physical contact, there

must be some evidence from which the trier of fact can logically infer as much. Here,

the officers testified (improperly) to their opinions that defendant’s conduct

constituted domestic battery, but there was no evidence - such as a description of the

wife’s subjective reaction to the incident - from which it could be inferred that the

contact was insulting or provoking.

In concluding that the trial court erred in denying defendant’s motion for a

directed verdict, the Appellate Court looked to another domestic battery case

prosecuted by the Kane County State’s Attorney’s office, People v. McDowell, 2015

IL App (2d) 140301-U, with similar facts. While McDowell was an unpublished

decision, the court noted “no language in Rule 23 expressly forbids the Appellate

Court from adopting the reasoning of an unpublished order.” Here, as in McDowell,

the wife intervened while her husband was involved in a heated argument, and the

ensuing contact between the two was not insulting or provoking.

BATTERY, ASSAULT & STALKING OFFENSES

§7-1(c)

People v. Ward, 2021 IL App (2d) 190243 (7/7/21)

Defendant, who was well-known as a vocal critic of local law enforcement, was

involved in a verbal altercation with police officers at the scene of a traffic accident

involving defendant’s teenage son. Defendant’s wife stepped between defendant and

an officer in an effort to diffuse the situation. Defendant pushed her to the side and

continued to argue, at which point he was arrested and charged with domestic battery

based on the push to his wife. Defendant’s wife insisted he did nothing wrong, so the

officer signed the complaint against defendant.

At trial, defendant’s wife described the physical contact in question as similar

to passing someone in a hallway; defendant moved her out of the way, but held on to

her so she would not fall. She stated that she thought the arrest was a “complete

farce” and that she was not insulted or provoked by the contact.

Whether contact is insulting or provoking is dependent on its effect on the

victim. A defendant cannot be found guilty of battery based on insulting or provoking

contact without some proof that the victim was insulted or provoked. While the victim

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need not testify directly to being insulted or provoked by the physical contact, there

must be some evidence from which the trier of fact can logically infer as much. Here,

the officers testified (improperly) to their opinions that defendant’s conduct

constituted domestic battery, but there was no evidence - such as a description of the

wife’s subjective reaction to the incident - from which it could be inferred that the

contact was insulting or provoking.

In concluding that the trial court erred in denying defendant’s motion for a

directed verdict, the Appellate Court looked to another domestic battery case

prosecuted by the Kane County State’s Attorney’s office, People v. McDowell, 2015

IL App (2d) 140301-U, with similar facts. While McDowell was an unpublished

decision, the court noted “no language in Rule 23 expressly forbids the Appellate

Court from adopting the reasoning of an unpublished order.” Here, as in McDowell,

the wife intervened while her husband was involved in a heated argument, and the

ensuing contact between the two was not insulting or provoking.

§7-1(h)(3)

People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21)

Defendant was found guilty of aggravated criminal sexual assault under

section 11-1.30(a)(2). To prove defendant guilty under this subsection, the State was

required to prove that defendant committed an act of sexual penetration against the

victim by the use of force and caused bodily harm. The Appellate Court found the

evidence of “force” insufficient and reversed the conviction.

The complainant L.L. testified that defendant took her to a restaurant where

she drank several glasses of wine, to the point of severe intoxication. She admitted

that she invited defendant back to her apartment, with the assumption that they

would engage in sexual intercourse. When they arrived at the apartment, L.L. took

her dogs outside and fell down. The next thing she remembered was laying in her bed

naked with defendant on top of her, digitally penetrating her. She told defendant to

stop because it hurt, and after she agreed to oral copulation, they engaged in vaginal

sex. The sex was so painful that L.L. began bawling, and told him it was painful,

although she did not tell him to stop because she thought it would be futile. L.L.

moved away, and told defendant to stop because he was hurting her. They argued,

and she saw a vein pop in his neck, suggesting he was very angry and making her

believe he would force himself on her or worse. At that point L.L. laid down and he

again penetrated her vaginally. L.L. told him it hurt and told him to stop, eventually

shoving him off and ending the encounter.

The Appellate Court rejected the argument that defendant used force during

the digital penetration, or during either act of vaginal intercourse. First, defendant’s

act of forcing his fingers into L.L.’s vagina did not amount to the force necessary to

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prove criminal sexual assault. Force does not include the force inherent to the act of

physical penetration; instead, there must be some kind of physical compulsion, or

threat thereof, that causes the victim to submit to the penetration against their will.

Regarding the first act of vaginal penetration, L.L. never testified that this act began

due to force or the threat of force, only that it was painful and that she eventually

moved away rather than telling him to stop. With regard to the second act of vaginal

penetration, defendant did not threaten L.L., and her subjective interpretation of

defendant’s neck vein as a threat was insufficient to qualify as an actual threat.

Under the definition provided in section 11-0.1, an actual threat must be followed by

a reasonable belief that the accused will act upon the threat. Here, there was no

evidence that defendant threatened L.L. or that any perceived threat was reasonable.

The State argued that L.L. withdrew her consent when she told defendant,

“stop, it hurts,” near the end of the encounter. But the Appellate Court found that

defendant did not prevent her from disengaging. When a defendant raises the

affirmative defense of consent in an aggravated criminal sexual assault trial, the

State has a burden of proof beyond a reasonable doubt on the issue of consent as well

as on the issue of force. A person can passively force someone to continue with an act

of sexual penetration by using one’s bodily inertia to prevent the victim from

disengaging, but here, defendant’s bodily inertia did not prevent L.L. from

disengaging. Rather, L.L. was able to push defendant off her, ending the penetration.

Despite reversing defendant’s conviction for insufficient evidence, the court

went on to hold that the trial court erred in admitting other-crimes evidence. At trial,

three witnesses testified about a prior sexual assault. The State used this testimony

to prove propensity under section 115-7.3 and as evidence of intent and lack of

mistake. In that assault, E.S. alleged that defendant took her to a restaurant where

she drank too much wine and ended up with defendant in her apartment. She further

alleged that defendant forced himself on her in the morning. The court found E.S.’s

unproven allegation was factually dissimilar to the charged conduct; other than

defendant inviting E.S. and L.L. to wine bars, the two incidents bear little

resemblance to one another in any significant way. Thus, the probative value was low

and no reasonable person could conclude that the probative value outweighed the

prejudicial effect.

COLLATERAL REMEDIES

§9-1(i)(2)

People v. Dorsey, 2021 IL 123010 (7/29/21)

Defendant was sentenced to an aggregate term of 76 years in prison for a

murder and two attempted murders committed at age 14. The sentence was eligible

for day-for-day good conduct credit. Defendant filed a successive post-conviction

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petition, alleging that his sentence violated Miller v. Alabama, 567 U.S. 460 (2012).

The Appellate Court affirmed the denial of leave to file, finding that defendant’s

eligibility for day-for-day sentencing credit meant that he did not receive a de facto

life sentence.

A six member majority of the Supreme Court affirmed. The majority first held

that defendant established cause where he could not have raised his claim earlier.

Defendant’s direct appeal was decided in 2000, and he filed his initial PC in 2005.

The instant successive petition was filed in 2014. The appellate court correctly found

that the “cause” prong was established where Miller set forth a new substantive rule

in 2012 and was not available to defendant in his first petition.

The Supreme Court further held, however, that defendant could not establish

prejudice because the day-for-day sentencing scheme meant that defendant did not

receive a de facto life sentence. Miller precludes a life sentence for most juveniles

without “some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” The day-for-day sentencing scheme gives juveniles that

meaningful opportunity. It is guaranteed by statute as long as the defendant complies

with good conduct rules. By complying with those rules, defendants can earn an

opportunity for early release.

Although defendant argued that the loss of good conduct credit for minor

violations of prison rules did not mean a juvenile was not mature or rehabilitated,

the Supreme Court disagreed. It is in a defendant’s power to shorten his sentence by

earning good-conduct credit, and earning such credit allows a defendant the

opportunity to exhibit maturity and rehabilitation. And while a juvenile may be

stripped of good conduct credit without the approval of courts, the court found no

distinction between this scheme and a discretionary parole system, which was

explicitly endorsed by Miller. The Supreme Court found that several regulations

ensured that good conduct credit would not be lost without due process, making the

system even more favorable to defendants than parole.

The majority further held that even if it accepted defendant’s argument

regarding day-for-day credit, his claim would fail in light of the Supreme Court’s

decision in Jones v. Mississippi, 593 U.S. ___, (2021). Under Jones, a judge who

imposes a discretionary life sentence does not need to make an explicit finding of

incorrigibility. As long as the judge had the discretion to consider youth and its

attendant circumstances, a life sentence was permissible. Here, defendant’s

mandatory minimum was 32 years, and the sentencing court had the discretion to

consider defendant’s youth before it chose to impose the 76-year term.

Finally, the majority refused to reach defendant’s argument that his sentence

violated the proportionate penalties clause of the Illinois Constitution, finding the

claim forfeited and barred by res judicata. Defendant did not raise the proportionate

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penalties argument in his petition for leave to file a successive post-conviction

petition or in the petition itself, nor did he raise it in his petition for leave to appeal.

Although defendant argued he preserved the claim by raising it in the Appellate

Court, the Supreme Court found a mere reference to the proportionate penalties

clause, without further argument, was insufficient. And because defendant raised a

proportionate penalties argument in his direct appeal, the claim was barred by res

judicata despite the evolution of the law in subsequent years. Miller’s unavailability

prior to 2012 at best deprived defendant of “some helpful support” for his state

constitutional law claim, which is insufficient to establish “cause.”

The dissent would have found the issue of good-conduct credit a factual

question inappropriately resolved at the pleading stage. It further would have

adhered to precedents that held sentencing credit controlled by prisons is not a part

of the sentence. The dissent pointed out that the range of infractions – including

“unauthorized movement,” “business ventures,” and “dangerous written materials” –

was so broad and vague that it allowed for arbitrary revocation of credit. Finally, the

dissent would have reached the proportionate penalties clause and found it sufficient

to reach the second stage, citing the importance of the issue and disagreeing with the

majority’s conclusion that the claim was not adequately raised in the Appellate Court.

(Defendant was represented by Assistant Defender Bryon Reina, Chicago.)

§9-1(i)(3)

People v. Horton, 2021 IL App (1st) 180551 (7/19/21)

The trial court did not err in denying leave to file a successive post-conviction

petition alleging actual innocence. Defendant failed to present noncumulative

evidence in support of his claim, where a witness’s assertion that he gave the shooting

victim a gun prior to the shooting was cumulative of defendant’s trial testimony that

the victim was armed. The witness’s affidavit corroborated defendant’s trial

testimony, which could be a basis to argue reasonable doubt, but that is not the

standard for establishing a claim of actual innocence.

Further, defendant’s proposed new evidence was not conclusive. The

supporting witness averred that he gave the victim a gun on the night of the shooting,

claimed that the victim went to the scene planning to kill defendant, and explained

that the reason no gun was found on the victim’s body was because another individual

took it and concealed it after the shooting. The proposed new witness was not present

at the shooting and did not indicate that the victim displayed or threatened to use

the gun during the confrontation with defendant. Thus, the evidence fell short of

supporting a claim of self-defense necessary to demonstrate actual innocence.

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In reaching its conclusion, the Appellate Court majority relied on two recent

unpublished decisions, People v. Jackson, 2021 IL App (1st) 190406-U, and People

v. Smith, 2021 IL App (1st) 181178-U, as persuasive authority under Illinois

Supreme Court Rule 23(e)(1), as amended effective January 1, 2021.

(Defendant was represented by Assistant Defender Rebecca Levy, Chicago.)

CONFESSIONS

§10-5(c)(2)

People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21)

The 16 year-old defendant voluntarily waived his Miranda rights prior to his

custodial interrogation, and his confession was given voluntarily.

The interrogating officer provided defendant a form entitled “Custodial

Interview Advice Juvenile” which contained the Miranda warnings. He asked

defendant if he could read, then read the rights as defendant followed along. The

officer asked if defendant understood each right, and defendant affirmed that he did.

The Appellate Court found that this procedure ensured a voluntary and knowing

waiver given that the record showed defendant to be intelligent, articulate, and

“almost 17” (defendant was four months shy of his 17th birthday.) Although

defendant cited secondary sources suggesting juveniles had difficulty understanding

Miranda warnings, the court noted that these sources were not presented at the trial

level and regardless, concluded that to apply their reasoning would create a

presumption of involuntariness in every case where a juvenile waived Miranda.

As for the voluntariness of the confession, defendant alleged that his will was

overborne because he did not consult with a concerned adult, he was interrogated

over a period of 13 hours, and the interrogating officer used threats and promises of

leniency. The Appellate Court noted, however, that the trial court properly found that

defendant was interrogated for about 2.5 hours out of the 13 hours of confinement,

and did not find this to be an unreasonable amount of time likely to cause an

involuntary confession.

With regard to the presence of a concerned adult, defendant alleged his mother

was not allowed to confer with him before he made statements to police and his DJO

left after defendant was Mirandized. But the Appellate Court found that the police

immediately contacted defendant’s mother upon taking him into custody, and that

when initially asked if he wanted his mother in the room, defendant declined.

Eventually defendant changed his mind and defendant’s mother was immediately

brought into the room. And while the DJO was not present for the investigation, he

told defendant that he could request his presence if defendant had any questions. The

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Appellate Court also rejected the notion that the DJO could not be a concerned adult

due to his role in the investigation, distinguishing People v. Griffin, 327 Ill. App.

3d 538 (2002), where the DJO was interrogating witnesses. Here, the DJO merely

obtained a witnesses’ contact info from a cell phone.

Further, the Appellate Court found no improper threats or promises of

leniency. The officer repeatedly exhorted defendant to tell the truth, and suggested

several times that by telling the truth he could be a “witness” rather than a

“defendant” and that he could go home rather than go to jail. But the officer did not

offer a specific benefit, which is required to show an improper promise of leniency.

Taking all other factors into consideration, the Appellate Court found the

confession voluntary despite defendant’s lack of experience with the criminal justice

system. He was legally detained, and had the benefit of a DJO before the

interrogation. By his own choice he did not have his mother present during some of

the questioning, but he did have either his mother or grandmother present during

much of the interview. Defendant was 16 years old, but only four months shy of his

seventeenth birthday. He was educated, intelligent, and a good student. While at the

station, he was allowed to eat, use the restroom, use his mother’s and grandmother’s

cell phones, and take breaks during questioning. He was not restrained during the

interrogation and exhibited sound mental capacity. The court affirmed the denial of

the motion to suppress.

(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,

Springfield.)

EVIDENCE

§§19-2(b)(1), 19-23(a)

People v. Hardimon, 2021 IL App (3d) 180578 (7/22/21)

Defendant was convicted of murder after he was identified as the perpetrator

of a shooting outside a night club. At his trial, one witness, a bouncer, testified that

as he escorted defendant out of a club, he heard defendant say he would “light this

bitch up.” The bouncer testified that based on his familiarity with street slang, he

understood the comment to mean that there would be some “gun play.” Defendant

argued on appeal that this comment constituted improper lay opinion testimony.

Defendant further alleged that aspects of his videotaped statement, in particular the

commentary and accusatory questioning of the officers, was overly prejudicial.

The Appellate Court rejected these claims. Illinois Rule of Evidence 701 states

that “lay witnesses may offer opinions or inferences which are (a) rationally based on

the perception of the witness, and (b) helpful to a clear understanding of the witness’

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testimony or the determination of a fact in issue, and (c) not based on scientific,

technical, or other specialized knowledge.” The Appellate Court found the bouncer’s

testimony was proper lay opinion. It was rationally based on his familiarity with

street vernacular. The statement was helpful to the determination of the fact of the

defendant’s guilt in that there was, in fact, some “gun play.” The statement was not

based on scientific, technical, or specialized knowledge.

Nor did the court err in admitting certain portions of defendant’s videotaped

interrogation which he alleged to be overly prejudicial. In a prior appeal, the appellate

court deemed the interrogation prejudicial, based on officer comments and

accusations, after approximately 26 minutes. At the second trial, the parties argued

over whether the jury should see beyond the 25:46 mark or the 28:35 mark. In

between, the interrogating officers presented defendant with their theory of the case,

accusing him of shooting the victim after an argument in the bathroom of the

nightclub, and told defendant a witness could identify him entering a Mitsubishi after

the shooting. The Appellate Court found these officer statements admissible as

allowable interrogation techniques, and noted that defendant admitted to being in

the Mitsubishi, making this portion of the interrogation relevant.

§19-24(a)

People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21)

Defendant was found guilty of aggravated criminal sexual assault under

section 11-1.30(a)(2). To prove defendant guilty under this subsection, the State was

required to prove that defendant committed an act of sexual penetration against the

victim by the use of force and caused bodily harm. The Appellate Court found the

evidence of “force” insufficient and reversed the conviction.

The complainant L.L. testified that defendant took her to a restaurant where

she drank several glasses of wine, to the point of severe intoxication. She admitted

that she invited defendant back to her apartment, with the assumption that they

would engage in sexual intercourse. When they arrived at the apartment, L.L. took

her dogs outside and fell down. The next thing she remembered was laying in her bed

naked with defendant on top of her, digitally penetrating her. She told defendant to

stop because it hurt, and after she agreed to oral copulation, they engaged in vaginal

sex. The sex was so painful that L.L. began bawling, and told him it was painful,

although she did not tell him to stop because she thought it would be futile. L.L.

moved away, and told defendant to stop because he was hurting her. They argued,

and she saw a vein pop in his neck, suggesting he was very angry and making her

believe he would force himself on her or worse. At that point L.L. laid down and he

again penetrated her vaginally. L.L. told him it hurt and told him to stop, eventually

shoving him off and ending the encounter.

10

The Appellate Court rejected the argument that defendant used force during

the digital penetration, or during either act of vaginal intercourse. First, defendant’s

act of forcing his fingers into L.L.’s vagina did not amount to the force necessary to

prove criminal sexual assault. Force does not include the force inherent to the act of

physical penetration; instead, there must be some kind of physical compulsion, or

threat thereof, that causes the victim to submit to the penetration against their will.

Regarding the first act of vaginal penetration, L.L. never testified that this act began

due to force or the threat of force, only that it was painful and that she eventually

moved away rather than telling him to stop. With regard to the second act of vaginal

penetration, defendant did not threaten L.L., and her subjective interpretation of

defendant’s neck vein as a threat was insufficient to qualify as an actual threat.

Under the definition provided in section 11-0.1, an actual threat must be followed by

a reasonable belief that the accused will act upon the threat. Here, there was no

evidence that defendant threatened L.L. or that any perceived threat was reasonable.

The State argued that L.L. withdrew her consent when she told defendant,

“stop, it hurts,” near the end of the encounter. But the Appellate Court found that

defendant did not prevent her from disengaging. When a defendant raises the

affirmative defense of consent in an aggravated criminal sexual assault trial, the

State has a burden of proof beyond a reasonable doubt on the issue of consent as well

as on the issue of force. A person can passively force someone to continue with an act

of sexual penetration by using one’s bodily inertia to prevent the victim from

disengaging, but here, defendant’s bodily inertia did not prevent L.L. from

disengaging. Rather, L.L. was able to push defendant off her, ending the penetration.

Despite reversing defendant’s conviction for insufficient evidence, the court

went on to hold that the trial court erred in admitting other-crimes evidence. At trial,

three witnesses testified about a prior sexual assault. The State used this testimony

to prove propensity under section 115-7.3 and as evidence of intent and lack of

mistake. In that assault, E.S. alleged that defendant took her to a restaurant where

she drank too much wine and ended up with defendant in her apartment. She further

alleged that defendant forced himself on her in the morning. The court found E.S.’s

unproven allegation was factually dissimilar to the charged conduct; other than

defendant inviting E.S. and L.L. to wine bars, the two incidents bear little

resemblance to one another in any significant way. Thus, the probative value was low

and no reasonable person could conclude that the probative value outweighed the

prejudicial effect.

11

FITNESS TO STAND TRIAL

§21-4(b)

People v. Lewis, 2021 IL App (3d) 180259 (7/9/21)

The trial court did not err in allowing the State to introduce the deposition of

a witness as substantive evidence at defendant’s discharge hearing which resulted in

a finding of “not not guilty.” The witness was 85 years old and living in a nursing

home at the time the evidence deposition was taken. And, by the time of trial, more

than a year later, she was suffering heart failure and being treated for injuries

sustained during a fall. Her doctor opined that in-court testimony would have a

negative impact on the witness, both physically and psychologically.

Illinois Supreme Court Rule 414 permits the taking of evidence depositions in

criminal cases. Defendant argued that because his case proceeded to a discharge

hearing, rather than a criminal trial, Rule 414 did not apply. The Appellate Court

rejected that argument. While there is a statute specifically providing for the

admission of certain hearsay evidence in discharge hearings [725 ILCS 5/104-25(a)],

that statute does not set forth the full scope of admissible evidence in such proceeding.

Instead, Section 104-25(a) simply describes a specific area in which more evidence is

allowed at a discharge hearing than would be at a criminal trial. The finding of not

not guilty was affirmed.

(Defendant was represented by Assistant Defender James Wozniak, Chicago.)

HOMICIDE

§26-2

People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21)

The Appellate Court rejected a juvenile defendant’s constitutional attack on

the felony murder statute. Defendant alleged that the felony murder statute violated

due process as applied to juveniles because it does not reasonably relate to the state’s

interests of deterring violent crime. Defendant argued a juvenile cannot be deterred

from crime because “[a]s a group, juveniles lack the cognitive and neurological

development to be deterred by the fear of prosecution for first degree murder.”

Defendant relied on Eighth Amendment cases such as Graham, Roper, and

Simmons.

The Appellate Court held that as in People v. Pacheco, 2013 IL App (4th)

110409, it would not adopt Eighth Amendment law as support for defendant’s due

process challenge. While defendant also cited several secondary sources to support

his contention that juveniles do not make the kind of long-term risk considerations

12

that would be required in order for them to be deterred by the felony murder statute,

defendant did not present this argument or these sources to the trial court. Even if

defendant’s sources contain scientific facts, the legislature is in a better position than

the judiciary to gather and evaluate data bearing on complex problems.

(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,

Springfield.)

INSANITY – MENTALLY ILL – INTOXICATION

§30-1(a)

People v. Ferguson, 2021 IL App (1st) 201013 (7/23/21)

When a defendant is found not guilty by reason of insanity, the trial court must

determine his or her maximum period of commitment, also know as the Thiem date.

See People v. Thiem, 82 Ill. App. 3d 956 (1980). Pursuant to 730 ILCS 5/5-2-4(b),

the Thiem date “shall not exceed the maximum length of time the defendant would

have been required to serve, less credit for good behavior as provided in Section 5-4-

1...had he been convicted of and received the maximum sentence for the most serious

crime for which he has been acquitted by reason of insanity.”

Here, defendant argued that his Thiem date should be reduced by the 180

days of discretionary good conduct credit that he may earn under 730 ILCS 5/3-6-

3(a)(3). The Appellate Court disagreed. The discretionary credit is not “credit for good

behavior as provided in Section 5-4-1" and therefore does not apply to advance

defendant’s Thiem date. The court noted, however, that the Director at the

Department of Human Services should be informed that defendant’s commitment

may be reduced by up to 180 days if the Director finds defendant eligible for such

credit.

JUVENILE PROCEEDINGS

§33-6(g)(2)

People v. Dorsey, 2021 IL 123010 (7/29/21)

Defendant was sentenced to an aggregate term of 76 years in prison for a

murder and two attempted murders committed at age 14. The sentence was eligible

for day-for-day good conduct credit. Defendant filed a successive post-conviction

petition, alleging that his sentence violated Miller v. Alabama, 567 U.S. 460 (2012).

The Appellate Court affirmed the denial of leave to file, finding that defendant’s

eligibility for day-for-day sentencing credit meant that he did not receive a de facto

life sentence.

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A six member majority of the Supreme Court affirmed. The majority first held

that defendant established cause where he could not have raised his claim earlier.

Defendant’s direct appeal was decided in 2000, and he filed his initial PC in 2005.

The instant successive petition was filed in 2014. The appellate court correctly found

that the “cause” prong was established where Miller set forth a new substantive rule

in 2012 and was not available to defendant in his first petition.

The Supreme Court further held, however, that defendant could not establish

prejudice because the day-for-day sentencing scheme meant that defendant did not

receive a de facto life sentence. Miller precludes a life sentence for most juveniles

without “some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” The day-for-day sentencing scheme gives juveniles that

meaningful opportunity. It is guaranteed by statute as long as the defendant complies

with good conduct rules. By complying with those rules, defendants can earn an

opportunity for early release.

Although defendant argued that the loss of good conduct credit for minor

violations of prison rules did not mean a juvenile was not mature or rehabilitated,

the Supreme Court disagreed. It is in a defendant’s power to shorten his sentence by

earning good-conduct credit, and earning such credit allows a defendant the

opportunity to exhibit maturity and rehabilitation. And while a juvenile may be

stripped of good conduct credit without the approval of courts, the court found no

distinction between this scheme and a discretionary parole system, which was

explicitly endorsed by Miller. The Supreme Court found that several regulations

ensured that good conduct credit would not be lost without due process, making the

system even more favorable to defendants than parole.

The majority further held that even if it accepted defendant’s argument

regarding day-for-day credit, his claim would fail in light of the Supreme Court’s

decision in Jones v. Mississippi, 593 U.S. ___, (2021). Under Jones, a judge who

imposes a discretionary life sentence does not need to make an explicit finding of

incorrigibility. As long as the judge had the discretion to consider youth and its

attendant circumstances, a life sentence was permissible. Here, defendant’s

mandatory minimum was 32 years, and the sentencing court had the discretion to

consider defendant’s youth before it chose to impose the 76-year term.

Finally, the majority refused to reach defendant’s argument that his sentence

violated the proportionate penalties clause of the Illinois Constitution, finding the

claim forfeited and barred by res judicata. Defendant did not raise the proportionate

penalties argument in his petition for leave to file a successive post-conviction

petition or in the petition itself, nor did he raise it in his petition for leave to appeal.

Although defendant argued he preserved the claim by raising it in the Appellate

Court, the Supreme Court found a mere reference to the proportionate penalties

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clause, without further argument, was insufficient. And because defendant raised a

proportionate penalties argument in his direct appeal, the claim was barred by res

judicata despite the evolution of the law in subsequent years. Miller’s unavailability

prior to 2012 at best deprived defendant of “some helpful support” for his state

constitutional law claim, which is insufficient to establish “cause.”

The dissent would have found the issue of good-conduct credit a factual

question inappropriately resolved at the pleading stage. It further would have

adhered to precedents that held sentencing credit controlled by prisons is not a part

of the sentence. The dissent pointed out that the range of infractions – including

“unauthorized movement,” “business ventures,” and “dangerous written materials” –

was so broad and vague that it allowed for arbitrary revocation of credit. Finally, the

dissent would have reached the proportionate penalties clause and found it sufficient

to reach the second stage, citing the importance of the issue and disagreeing with the

majority’s conclusion that the claim was not adequately raised in the Appellate Court.

(Defendant was represented by Assistant Defender Bryon Reina, Chicago.)

SEARCH & SEIZURE

§§43-1(c), 43-2(d)(3)

People v. Mueller, 2021 IL App (2d) 190868 (7/8/21)

A blood draw taken by medical personnel following defendant’s car accident

did not violate the Fourth Amendment. The medical personnel were not State actors,

and took the blood for medical reasons, not at the behest of the police. Section 11-

501.4-1(a) of the Illinois Vehicle Code, which compels the release of the blood test

results to law enforcement, does not create Fourth Amendment implications, because

it does not require the draw or otherwise transform the medical personnel into State

actors.

§§43-2(d)(7), 43-3(c)(2), 43-3(c)(3)(b)

People v. Hardimon, 2021 IL App (3d) 180578 (7/22/21)

The State established that probable cause and exigent circumstances existed

at the time of defendant’s warrantless arrest. In considering whether exigent

circumstances exist, courts consider: (1) whether the offense being investigated was

recently committed; (2) whether the officers deliberately or unjustifiably delayed

during a time they could have obtained a warrant; (3) whether a grave offense,

particularly one of violence, is involved; (4) “whether the suspect is reasonably

believed to be armed”; (5) whether the police were acting upon a clear showing of

probable cause; (6) whether there was a likelihood of escape if the suspect was not

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swiftly apprehended; (7) whether there was a strong reason to believe the suspect

was at the premises to be searched; and (8) whether the police entry, although

nonconsensual, was made peacefully.

Here, the witness interviews implicating defendant occurred the day of and the

day after the shooting, leading to defendant’s arrest within 48 hours. The Appellate

Court found this to be “recent” and that the police did not delay unjustifiably in their

investigation. The offense – murder – was grave, and defendant was assumed to be

armed as no weapon was found at the scene. Probable cause clearly existed where the

witnesses knew defendant and corroborated each other. Because a witness informed

the police where he dropped off defendant after the crime, there was strong reason to

believe defendant was at the premises. Finally, the entry was peaceful, as police

knocked and were let inside by the homeowner. Where every factor favored exigent

circumstances, the Appellate Court upheld the arrest.

SENTENCING

§44-1(c)(2)

People v. Dorsey, 2021 IL 123010 (7/29/21)

Defendant was sentenced to an aggregate term of 76 years in prison for a

murder and two attempted murders committed at age 14. The sentence was eligible

for day-for-day good conduct credit. Defendant filed a successive post-conviction

petition, alleging that his sentence violated Miller v. Alabama, 567 U.S. 460 (2012).

The Appellate Court affirmed the denial of leave to file, finding that defendant’s

eligibility for day-for-day sentencing credit meant that he did not receive a de facto

life sentence.

A six member majority of the Supreme Court affirmed. The majority first held

that defendant established cause where he could not have raised his claim earlier.

Defendant’s direct appeal was decided in 2000, and he filed his initial PC in 2005.

The instant successive petition was filed in 2014. The appellate court correctly found

that the “cause” prong was established where Miller set forth a new substantive rule

in 2012 and was not available to defendant in his first petition.

The Supreme Court further held, however, that defendant could not establish

prejudice because the day-for-day sentencing scheme meant that defendant did not

receive a de facto life sentence. Miller precludes a life sentence for most juveniles

without “some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” The day-for-day sentencing scheme gives juveniles that

meaningful opportunity. It is guaranteed by statute as long as the defendant complies

with good conduct rules. By complying with those rules, defendants can earn an

opportunity for early release.

16

Although defendant argued that the loss of good conduct credit for minor

violations of prison rules did not mean a juvenile was not mature or rehabilitated,

the Supreme Court disagreed. It is in a defendant’s power to shorten his sentence by

earning good-conduct credit, and earning such credit allows a defendant the

opportunity to exhibit maturity and rehabilitation. And while a juvenile may be

stripped of good conduct credit without the approval of courts, the court found no

distinction between this scheme and a discretionary parole system, which was

explicitly endorsed by Miller. The Supreme Court found that several regulations

ensured that good conduct credit would not be lost without due process, making the

system even more favorable to defendants than parole.

The majority further held that even if it accepted defendant’s argument

regarding day-for-day credit, his claim would fail in light of the Supreme Court’s

decision in Jones v. Mississippi, 593 U.S. ___, (2021). Under Jones, a judge who

imposes a discretionary life sentence does not need to make an explicit finding of

incorrigibility. As long as the judge had the discretion to consider youth and its

attendant circumstances, a life sentence was permissible. Here, defendant’s

mandatory minimum was 32 years, and the sentencing court had the discretion to

consider defendant’s youth before it chose to impose the 76-year term.

Finally, the majority refused to reach defendant’s argument that his sentence

violated the proportionate penalties clause of the Illinois Constitution, finding the

claim forfeited and barred by res judicata. Defendant did not raise the proportionate

penalties argument in his petition for leave to file a successive post-conviction

petition or in the petition itself, nor did he raise it in his petition for leave to appeal.

Although defendant argued he preserved the claim by raising it in the Appellate

Court, the Supreme Court found a mere reference to the proportionate penalties

clause, without further argument, was insufficient. And because defendant raised a

proportionate penalties argument in his direct appeal, the claim was barred by res

judicata despite the evolution of the law in subsequent years. Miller’s unavailability

prior to 2012 at best deprived defendant of “some helpful support” for his state

constitutional law claim, which is insufficient to establish “cause.”

The dissent would have found the issue of good-conduct credit a factual

question inappropriately resolved at the pleading stage. It further would have

adhered to precedents that held sentencing credit controlled by prisons is not a part

of the sentence. The dissent pointed out that the range of infractions – including

“unauthorized movement,” “business ventures,” and “dangerous written materials” –

was so broad and vague that it allowed for arbitrary revocation of credit. Finally, the

dissent would have reached the proportionate penalties clause and found it sufficient

to reach the second stage, citing the importance of the issue and disagreeing with the

majority’s conclusion that the claim was not adequately raised in the Appellate Court.

17

(Defendant was represented by Assistant Defender Bryon Reina, Chicago.)

§44-4(f), 44-15(c)

People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21)

The defendant’s sentence was not improperly disparate to his co-defendant’s,

and defendant was not penalized for choosing to go to trial. Defendant was convicted

of felony murder for participating in a robbery that ended in a shooting. One co-

defendant, whom the sentencing court deemed more culpable, received 20 years as

part of a plea agreement that included an obligation to testify against co-defendant.

Defendant received 24 years.

Generally, a sentence imposed on a codefendant who pleaded guilty as part of

a plea agreement does not provide a valid basis of comparison to a sentence entered

after a trial. The considerations that warrant a lesser sentence for one who pleads

guilty – acknowledgment of guilt, avoidance of a public trial, and cooperation in

another prosecution – all applied to the co-defendant’s plea. These reasons for

leniency defeat any claim that defendant received an arbitrarily or unreasonably

disparate sentence.

Nor did the record support defendant’s claim that the trial court penalized him

for exercising his constitutional right to a trial. A court of review will determine

whether a trial court imposed a trial tax by evaluating the court’s remarks to discern

if the punishment was, at least in part, imposed because the defendant availed

himself of his constitutional right to trial. Here, the sentencing court did note that co-

defendant was more culpable, referenced co-defendant’s plea agreement, and

remarked, “defendant exercised his constitutional right to have a trial.” However, the

trial court immediately stated, “I don’t believe that’s anything I can hold against the

defendant.” The court then provided ample explanation for its decision to impose a

24-year sentence, balancing several proper factors in aggravation and mitigation. The

record therefore established the sentencing court did not impose a trial tax.

(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,

Springfield.)

SEX OFFENSES

§45-2(a)

People v. Lamonica, 2021 IL App (2d) 200136 (7/26/21)

Defendant was found guilty of aggravated criminal sexual assault under

section 11-1.30(a)(2). To prove defendant guilty under this subsection, the State was

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required to prove that defendant committed an act of sexual penetration against the

victim by the use of force and caused bodily harm. The Appellate Court found the

evidence of “force” insufficient and reversed the conviction.

The complainant L.L. testified that defendant took her to a restaurant where

she drank several glasses of wine, to the point of severe intoxication. She admitted

that she invited defendant back to her apartment, with the assumption that they

would engage in sexual intercourse. When they arrived at the apartment, L.L. took

her dogs outside and fell down. The next thing she remembered was laying in her bed

naked with defendant on top of her, digitally penetrating her. She told defendant to

stop because it hurt, and after she agreed to oral copulation, they engaged in vaginal

sex. The sex was so painful that L.L. began bawling, and told him it was painful,

although she did not tell him to stop because she thought it would be futile. L.L.

moved away, and told defendant to stop because he was hurting her. They argued,

and she saw a vein pop in his neck, suggesting he was very angry and making her

believe he would force himself on her or worse. At that point L.L. laid down and he

again penetrated her vaginally. L.L. told him it hurt and told him to stop, eventually

shoving him off and ending the encounter.

The Appellate Court rejected the argument that defendant used force during

the digital penetration, or during either act of vaginal intercourse. First, defendant’s

act of forcing his fingers into L.L.’s vagina did not amount to the force necessary to

prove criminal sexual assault. Force does not include the force inherent to the act of

physical penetration; instead, there must be some kind of physical compulsion, or

threat thereof, that causes the victim to submit to the penetration against their will.

Regarding the first act of vaginal penetration, L.L. never testified that this act began

due to force or the threat of force, only that it was painful and that she eventually

moved away rather than telling him to stop. With regard to the second act of vaginal

penetration, defendant did not threaten L.L., and her subjective interpretation of

defendant’s neck vein as a threat was insufficient to qualify as an actual threat.

Under the definition provided in section 11-0.1, an actual threat must be followed by

a reasonable belief that the accused will act upon the threat. Here, there was no

evidence that defendant threatened L.L. or that any perceived threat was reasonable.

The State argued that L.L. withdrew her consent when she told defendant,

“stop, it hurts,” near the end of the encounter. But the Appellate Court found that

defendant did not prevent her from disengaging. When a defendant raises the

affirmative defense of consent in an aggravated criminal sexual assault trial, the

State has a burden of proof beyond a reasonable doubt on the issue of consent as well

as on the issue of force. A person can passively force someone to continue with an act

of sexual penetration by using one’s bodily inertia to prevent the victim from

disengaging, but here, defendant’s bodily inertia did not prevent L.L. from

disengaging. Rather, L.L. was able to push defendant off her, ending the penetration.

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Despite reversing defendant’s conviction for insufficient evidence, the court

went on to hold that the trial court erred in admitting other-crimes evidence. At trial,

three witnesses testified about a prior sexual assault. The State used this testimony

to prove propensity under section 115-7.3 and as evidence of intent and lack of

mistake. In that assault, E.S. alleged that defendant took her to a restaurant where

she drank too much wine and ended up with defendant in her apartment. She further

alleged that defendant forced himself on her in the morning. The court found E.S.’s

unproven allegation was factually dissimilar to the charged conduct; other than

defendant inviting E.S. and L.L. to wine bars, the two incidents bear little

resemblance to one another in any significant way. Thus, the probative value was low

and no reasonable person could conclude that the probative value outweighed the

prejudicial effect.

STATUTES

§47-3(b)(3)(c)

People v. O’Neal, 2021 IL App (4th) 200014 (7/30/21)

The Appellate Court rejected a juvenile defendant’s constitutional attack on

the felony murder statute. Defendant alleged that the felony murder statute violated

due process as applied to juveniles because it does not reasonably relate to the state’s

interests of deterring violent crime. Defendant argued a juvenile cannot be deterred

from crime because “[a]s a group, juveniles lack the cognitive and neurological

development to be deterred by the fear of prosecution for first degree murder.”

Defendant relied on Eighth Amendment cases such as Graham, Roper, and

Simmons.

The Appellate Court held that as in People v. Pacheco, 2013 IL App (4th)

110409, it would not adopt Eighth Amendment law as support for defendant’s due

process challenge. While defendant also cited several secondary sources to support

his contention that juveniles do not make the kind of long-term risk considerations

that would be required in order for them to be deterred by the felony murder statute,

defendant did not present this argument or these sources to the trial court. Even if

defendant’s sources contain scientific facts, the legislature is in a better position than

the judiciary to gather and evaluate data bearing on complex problems.

(Defendant was represented by Assistant Defender Salome Kiwara-Wilson,

Springfield.)

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WITNESS

§56-6(b)(2)

People v. Lewis, 2021 IL App (3d) 180259 (7/9/21)

The trial court did not err in allowing the State to introduce the deposition of

a witness as substantive evidence at defendant’s discharge hearing which resulted in

a finding of “not not guilty.” The witness was 85 years old and living in a nursing

home at the time the evidence deposition was taken. And, by the time of trial, more

than a year later, she was suffering heart failure and being treated for injuries

sustained during a fall. Her doctor opined that in-court testimony would have a

negative impact on the witness, both physically and psychologically.

Illinois Supreme Court Rule 414 permits the taking of evidence depositions in

criminal cases. Defendant argued that because his case proceeded to a discharge

hearing, rather than a criminal trial, Rule 414 did not apply. The Appellate Court

rejected that argument. While there is a statute specifically providing for the

admission of certain hearsay evidence in discharge hearings [725 ILCS 5/104-25(a)],

that statute does not set forth the full scope of admissible evidence in such proceeding.

Instead, Section 104-25(a) simply describes a specific area in which more evidence is

allowed at a discharge hearing than would be at a criminal trial. The finding of not

not guilty was affirmed.

(Defendant was represented by Assistant Defender James Wozniak, Chicago.)

§§56-6(b)(3), 56-6(b)(4)(b)

People v. Pacheco, 2021 IL App (3d) 150880-B (7/12/21)

The Appellate Court held, over dissent, that defendant’s right to confrontation

was violated when the trial court curtailed his cross-examination of a police officer.

A police officer fired his weapon at defendant during the alleged aggravated assault,

and defense counsel requested permission from the court to ask the officer if improper

discharge of his weapon might cause him to lose his job. The court denied the request.

The Appellate Court, using a de novo standard of review, held that this was a proper

subject of cross-examination going to the officer’s motive to testify falsely. Because

the question went directly to the officer’s credibility relating to a crucial piece of

testimony that was not otherwise corroborated by direct evidence, the error was not

harmless beyond a reasonable doubt.

The court also abused its discretion when it precluded the defense from asking

about the lack of police reports from the responding officers. The officers testified at

a suppression hearing that department policy prevented them from writing a report

because a weapon had been discharged, but the defense showed the court that this

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was not the policy. The court should have allowed questioning in this area as the

failure to write a report was relevant to the officers’ credibility. In a closely balanced

case, the error could be reviewed as first-prong plain error.

(Defendant was represented by Assistant Defender Emily Brandon, Ottawa.)