Office of the State Appellate Defender

Illinois Criminal Law Digest

August 2019

JAMES E. CHADD

State Appellate Defender

KERRY J. BRYSON

SHAWN O’TOOLE

Deputy State Appellate Defenders, Editors

©Copyright 2019 by the Office of the State Appellate Defender. All rights reserved.

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TABLE OF CONTENTS

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

People v. Lawson, 2019 IL App (4th) 180452 (8/28/19) ........................................................................... 1

People v. Wunderlich, 2019 IL App (3d) 180360 (8/27/19) ..................................................................... 1

BATTERY, ASSAULT & STALKING OFFENSES ................................................. 1

People v. Wells, 2019 IL App (1st) 163247 (8/8/19) ................................................................................ 1

BURGLARY & RESIDENTIAL BURGLARY ......................................................... 2

People v. Johnson, 2019 IL 123318 (8/2/19) ............................................................................................ 2

COLLATERAL REMEDIES ...................................................................................... 3

People v. Harris, 2019 IL App (4th) 170261 (8/12/19) ............................................................................. 3

People v. Ames, 2019 IL App (4th) 170569 (8/22/19) .............................................................................. 3

People v. Ryburn, 2019 IL App (4th) 170779 (8/22/19) ........................................................................... 4

COUNSEL ..................................................................................................................... 4

People v. Ryburn, 2019 IL App (4th) 170779 (8/22/19) ........................................................................... 4

People v. Utley, 2019 IL App (1st) 152112 (8/29/19) ............................................................................... 5

People v. Lawson, 2019 IL App (4th) 180452 (8/28/19) ........................................................................... 5

EVIDENCE ................................................................................................................... 6

People v. Tatum, 2019 IL App (1st) 162403 (8/7/19) ............................................................................... 6

People v. Murphy, 2019 IL App (4th) 170646 (8/27/19) .......................................................................... 6

People v. Sims, 2019 IL App (3d) 170417 (8/5/19) ................................................................................... 6

GUILTY PLEAS ........................................................................................................... 7

People v. Burge, 2019 IL App (4th) 170399 (8/2/19) ............................................................................... 7

JURY ............................................................................................................................. 7

People v. Jordan, 2019 IL App (1st) 161848 (8/26/19) ............................................................................ 7

People v. Alexander, 2019 IL App (3d) 160709 (8/27/19)........................................................................ 8

People v. Blackwood, 2019 IL App (3d) 160161 (8/12/19) ...................................................................... 8

People v. Sims, 2019 IL App (3d) 170417 (8/5/19) ................................................................................... 8

JUVENILE PROCEEDINGS ..................................................................................... 9

People v. Murphy, 2019 IL App (4th) 170646 (8/27/19) .......................................................................... 9

People v. Peacock, 2019 IL App (1st) 170308 (8/1/19) ............................................................................ 9

People v. Ramsey, 2019 IL App (3d) 160759 (8/30/19) ......................................................................... 10

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REASONABLE DOUBT ........................................................................................... 10

People v. McVay, 2019 IL App (3d) 150821 (8/30/19) ........................................................................... 10

People v. Tatum, 2019 IL App (1st) 162403 (8/7/19) ............................................................................. 11

SENTENCING ........................................................................................................... 11

People v. Murphy, 2019 IL App (4th) 170646 (8/27/19) ........................................................................ 11

People v. Peacock, 2019 IL App (1st) 170308 (8/1/19) .......................................................................... 11

People v. Ramsey, 2019 IL App (3d) 160759 (8/30/19) ......................................................................... 12

SEX OFFENSES ........................................................................................................ 13

People v. Wells, 2019 IL App (1st) 163247 (8/8/19) .............................................................................. 13

SPEEDY TRIAL ......................................................................................................... 13

People v. Tatum, 2019 IL App (1st) 162403 (8/7/19) ............................................................................. 13

TRAFFIC OFFENSES .............................................................................................. 14

City of McHenry v. Kleven, 2019 IL App (2d) 180758 (8/13/19) ............................................................ 14

VENUE & JURISDICTION ..................................................................................... 14

People v. McVay, 2019 IL App (3d) 150821 (8/30/19) ........................................................................... 14

WAIVER - PLAIN ERROR - HARMLESS ERROR .............................................. 15

People v. Tatum, 2019 IL App (1st) 162403 (8/7/19) ............................................................................. 15

People v. Alexander, 2019 IL App (3d) 160709 (8/27/19)...................................................................... 15

WEAPONS .................................................................................................................. 15

People v. Alexander, 2019 IL App (3d) 160709 (8/27/19)...................................................................... 15

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APPEAL

§§2-1(a), 2-6(e)(2)

People v. Lawson, 2019 IL App (4th) 180452 (8/28/19)

Appellate Court had jurisdiction over defendant’s appeal following trial court’s

refusal to appoint new counsel on Krankel remand. Jurisdiction derives from

original direct-appeal notice of appeal and Article VI, Section 6 of the Illinois

Constitution which provides that the Appellate Court may exercise original

jurisdiction when necessary to the complete resolution of any case on review. Thus,

when the appellate court acquires jurisdiction and then remands to the trial court,

the Appellate Court has jurisdiction to review the proceedings on remand. This is

true regardless of whether the Appellate Court explicitly retains jurisdiction over the

matter when issuing the remand order.

(Defendant was represented by Assistant Defender Mariah Shaver,

Springfield.)

§2-4(a)

People v. Wunderlich, 2019 IL App (3d) 180360 (8/27/19)

The State charged defendant, a police officer, with various offenses after he

drove his squad car the wrong way down a one-way street and collided with a

motorcycle. The trial court dismissed. The State appealed, but the Appellate Court

affirmed. Pursuant to 11-205 of the Illinois Vehicle Code, authorized emergency

vehicles may disregard one-way street signs, as long as they do so with regard for the

safety of others and do not do so recklessly. Here, the State did not allege that

defendant acted recklessly or disregarded others’ safety, and therefore under the

statute the officer had immunity from prosecution for driving the wrong way down a

one-way street.

BATTERY, ASSAULT & STALKING OFFENSES

§7-1(g)

People v. Wells, 2019 IL App (1st) 163247 (8/8/19)

High school that was part of the Chicago Public School (CPS) system was

“public property” for purposes of establishing aggravating factor elevating battery to

aggravated battery. A location does not have to be “open to the public” to be public

property. It is enough that the property is owned by the government. Regardless,

public schools are open to the public, even if access is limited, because they are used

to host public functions, not just to educate children. The Appellate Court also noted

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that it could take judicial notice of CPS website information to establish that high

school was public property if necessary.

(Defendant was represented by Assistant Defender Pamela Rubeo, Chicago.)

BURGLARY & RESIDENTIAL BURGLARY

§§8-1(a), 8-1(c)

People v. Johnson, 2019 IL 123318 (8/2/19)

The Supreme Court majority upheld the “limited authority” doctrine in

burglary cases involving entry without authority. The limited authority doctrine

states that the authorization public establishments extend to prospective customers

does not cover those who intend to commit crimes on the premises. Thus, when a

defendant enters a retail establishment during normal business hours with the intent

to commit theft, defendant lacks authority to enter and has committed burglary.

The Appellate Court erred in finding that People v. Bradford, 2016 IL

118674 changed the law and required reversal of defendant’s burglary conviction.

Bradford rejected the limited authority doctrine only in the context of remaining-

without-authority burglary. The Supreme Court refused to extend Bradford to

entering-without-authority burglary, finding none of the reasons given by the

Bradford Court applicable to entry as opposed to remaining within. The Court also

rejected the idea that the legislative history of the retail theft statute evinced an

intent to punish shoplifting exclusively under that statute to the exclusion of the

burglary statute. The legislature could have found defendants who enter with intent

to commit theft more culpable, though it noted that “the vast majority” of shoplifting

cases will still be prosecuted as retail theft given the difficulty of proving intent at

the time of entry.

The two dissenting justices read the legislative history of the retail theft

statute as indicative of the need for a measured and proportionate response to the

problem of shoplifting, not as a supplement to the burglary statute. It further found

the majority’s culpability argument unavailing, noting that it is absurd to find that a

person who enters a store with intent to steal commits a Class 2 felony while a person

who actually commits the theft is guilty of a Class A misdemeanor.

(Defendant was represented by Assistant Defender Gilbert Lenz, Chicago.)

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COLLATERAL REMEDIES

§9-1(d)

People v. Harris, 2019 IL App (4th) 170261 (8/12/19)

First-stage dismissal of defendant’s post-conviction petition was upheld.

Defendant claimed ineffective assistance of trial counsel for failing to seek a

continuance to call two witnesses he believed would support his self-defense claim.

Defendant attached “unsigned” affidavits from the two witnesses, as well as his own

affidavit summarizing their proposed testimony and stating that he had been unable

to obtain the witnesses’ signatures due to his imprisonment.

A petitioner’s imprisonment, alone, cannot excuse the failure to attach

supporting material to a post-conviction petition. By statute, the post-conviction

remedy is only available to persons “imprisoned in the penitentiary.” 725 ILCS 5/122-

1(a). The supporting-material requirement would be rendered meaningless if

imprisonment alone could excuse it. Defendant did not describe his efforts to obtain

signed affidavits or any circumstances beyond his imprisonment which prevented

him from obtaining them. Thus, the failure to include supporting material was fatal,

and summary dismissal was upheld.

(Defendant was represented by Assistant Defender Peter Sgro, Chicago.)

§9-1(i)(1)

People v. Ames, 2019 IL App (4th) 170569 (8/22/19)

Under People v. Bailey, 2017 IL 121450, a trial court errs when it permits

the State to have input during the preliminary leave-to-file stage of successive post-

conviction proceedings. There is no de minimis exception to that rule, and regardless

the State’s participation in the instant case was not de minimis where the prosecutor

filed a written objection and presented arguments in person, and where the court

adopted the State’s reasons for denying leave to file.

There is a split in the Appellate Court as to the proper remedy where the State

improperly participates during the preliminary screening, with some courts

remanding for consideration of defendant’s cause-and-prejudice arguments without

State input and others concluding, for the sake of judicial economy, that the reviewing

court may consider the merits of defendant’s motion for leave to file. The Fourth

District chose to follow People v. Conway, 2019 IL App (2d) 170196, and consider

defendant’s motion for leave because it was “reasonably straightforward.” Here,

defendant failed to show cause why his claim could not have been raised in his initial

post-conviction petition where it was based, at least in part, on the original trial

record. Leave to file was properly denied.

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(Defendant was represented by Assistant Defender Elizabeth Botti, Chicago.)

§9-1(i)(2)

People v. Ryburn, 2019 IL App (4th) 170779 (8/22/19)

The circuit court erred when it found defendant’s successive post-conviction

petition failed to satisfy the cause-and-prejudice test. Defendant had pleaded guilty

to three counts of aggravated criminal sexual assault and received three consecutive

20-year sentences. Years later, after filing an ARDC complaint and a FOIA request,

he learned that the State initially offered a 24-year total sentence to his attorney, but

that his attorney never communicated the offer to him. Defendant’s inability to learn

about the offer until investigating his own case constituted “cause.” He further made

a substantial showing of prejudice by meeting the Frye test: he alleged that if he had

known of the offer he would have accepted it; he provided evidence that the State

would not have revoked the offer, because it made clear that the offer stood until the

next hearing date; the judge would have accepted the offer as it would have saved

time and would save the teenage victim the trouble of testifying; and the end result

of the criminal process would have been more favorable.

(Defendant was represented by Assistant Defender Gil Lenz, Chicago.)

COUNSEL

§14-4(b)(2)

People v. Ryburn, 2019 IL App (4th) 170779 (8/22/19)

The circuit court erred when it found defendant’s successive post-conviction

petition failed to satisfy the cause-and-prejudice test. Defendant had pleaded guilty

to three counts of aggravated criminal sexual assault and received three consecutive

20-year sentences. Years later, after filing an ARDC complaint and a FOIA request,

he learned that the State initially offered a 24-year total sentence to his attorney, but

that his attorney never communicated the offer to him. Defendant’s inability to learn

about the offer until investigating his own case constituted “cause.” He further made

a substantial showing of prejudice by meeting the Frye test: he alleged that if he had

known of the offer he would have accepted it; he provided evidence that the State

would not have revoked the offer, because it made clear that the offer stood until the

next hearing date; the judge would have accepted the offer as it would have saved

time and would save the teenage victim the trouble of testifying; and the end result

of the criminal process would have been more favorable.

(Defendant was represented by Assistant Defender Gil Lenz, Chicago.)

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§§14-4(b)(4), 14-4(b)(6)(c)

People v. Utley, 2019 IL App (1st) 152112 (8/29/19)

After parole officers found guns and drugs in his residence during a parole

check, defendant was charged with possession of a controlled substance with intent

to deliver, UUW/felon, and armed habitual criminal. He was convicted of all counts

and sentenced to natural life in prison pursuant to the habitual offender statute.

Defendant alleged ineffective assistance of counsel because his attorney did

not move to sever the charges. The weapons charges allowed the State to admit

defendant’s prior drug and gun convictions into evidence, while this evidence would

not have been admissible in a trial on the drug charge. The Appellate Court majority

agreed. Unlike People v. Fields, 2017 IL App (1st) 110311-B, where the court

rejected a similar argument due to counsel’s motion to bar mention of the specific

crimes at issue and his strategic use of an “all-or-nothing” approach, here, the

attorney did not seek to minimize the harm of the prior convictions in any way.

This failure was prejudicial in a case with several discrepancies and credibility

contests. Because the jury heard that defendant had been previously convicted of

crimes that involved the same type of conduct as the instant case, the jury may have

inferred that the contraband at issue here also belonged to defendant, rejecting the

defense’s version of events.

Moreover, counsel was ineffective for withdrawing a motion to suppress

defendant’s inculpatory custodial statement. Defendant testified at trial that his

request for counsel was ignored by interrogating officers, and that the officers

threatened to arrest his wife and subject his children to DCFS. The statement was

not recorded and conflicted with some of the testimony from the officers. Defendant’s

testimony was partially corroborated by the fact that his wife was in fact brought to

the police station. Under these circumstances, there is a reasonable probability that

the statement would have been suppressed and the outcome of the trial different.

(Defendant was represented by Assistant Defender Michael Gomez, Chicago.)

§14-7(a)(2)

People v. Lawson, 2019 IL App (4th) 180452 (8/28/19)

Trial court erred in refusing to appoint new counsel following a Krankel

inquiry. Defendant challenged counsel’s failure to call a known witness to impeach

the State’s key witness. Although not expressing an opinion on the ultimate merits

of defendant’s claim, the Appellate Court found that defendant’s allegations could

support a finding of ineffective assistance thereby requiring new counsel. The matter

was remanded for further proceedings.

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(Defendant was represented by Assistant Defender Mariah Shaver,

Springfield.)

EVIDENCE

§§19-2(a), 19-25

People v. Tatum, 2019 IL App (1st) 162403 (8/7/19)

Trial court did not err in allowing autopsy photos into evidence. Although the

cause and manner of death were not disputed, relevance does not require that the

evidence tend to prove only disputed facts at trial. The State may offer evidence

tending to prove any essential fact, even if that fact is not disputed. While the court

initially found that the photos should not be published to the jury during the trial,

defense counsel’s closing argument made the photos relevant to the theory of defense

and therefore the court did not err in sending them back to the jury room during

deliberations.

(Defendant was represented by Assistant Defender Sarah Curry, Chicago.)

§19-15(b)

People v. Murphy, 2019 IL App (4th) 170646 (8/27/19)

To be considered as substantive evidence under 725 ILCS 5/115-10.1(b) , a

party must confront the witness with the prior testimony, and the transcript of the

prior testimony must be admitted into evidence. The party does not then have to

publish the prior testimony to the jury, as the jury will have already heard the

testimony during questioning. The court rejected the defense argument that there is

a distinction between admitting evidence to the court and presenting that evidence

to the jury.

(Defendant was represented by Assistant Defender Caroline Bourland,

Chicago.)

§19-24(b)(3)

People v. Sims, 2019 IL App (3d) 170417 (8/5/19)

At defendant’s trial for unlawful possession of a weapon by a felon premised

on the recovery of a gun from the center console of defendant’s car, the trial court did

not abuse its discretion in allowing introduction of evidence that defendant had a gun

in his vehicle on a prior occasion. Because defendant was not found in actual physical

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possession of the gun, the State had to prove that he knew it was in his vehicle to

establish constructive possession. Where defendant denied knowledge of the gun in

the instant case, testimony about the prior gun possession showed both that

defendant had a gun in the car on the prior occasion and that he routinely kept a gun

in the car. That evidence was relevant to defendant’s knowledge, and therefore was

properly admitted. The dissenting justice would have found reversible error because

the evidence about the prior firearm incident was of minimal probative value, was a

significant focus of the State’s closing argument, and was confusing.

(Defendant was represented by Supervisor Mark Fisher, Ottawa.)

GUILTY PLEAS

§24-6(a)

People v. Burge, 2019 IL App (4th) 170399 (8/2/19)

The trial court did not err in failing to admonish defendant that her guilty plea

to theft may impact her ability to maintain or retain employment. That

admonishment requirement is contained in 725 ILCS 5/113-4. By its plain language,

section 113-4 requires certain admonishments when a guilty plea is entered at the

time of arraignment. When a defendant pleads guilty at any later court date, the only

requirement is substantial compliance with the requirements of Supreme Court Rule

402. Even if section 113-4 did apply, it is directory, not mandatory. And, given that

defendant’s theft conviction was premised on her stealing money from a client in the

course of her employment as a home health worker, it was common sense that her job

could be negatively impacted by her guilty plea.

(Defendant was represented by Assistant Defender Mariah Shaver,

Springfield.)

JURY

§32-3(b)

People v. Jordan, 2019 IL App (1st) 161848 (8/26/19)

Trial court committed second-prong plain error by refusing defendant’s jury

waiver because it was tendered after jury selection but prior to the swearing-in of the

jury. The point at which the jury is sworn is when defendant loses what is otherwise

an absolute right to waive a jury trial and proceed to a bench trial.

(Defendant was represented by Assistant Defender Eric Castaneda, Chicago.)

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§32-8(a)

People v. Alexander, 2019 IL App (3d) 160709 (8/27/19)

Evidence at defendant’s trial for unlawful use of a weapon by a felon included

that police recovered a gun from the ground along the route of defendant’s flight from

a traffic stop. During deliberations, the jury requested a definition of “possession.”

Over defense objection, the court gave IPI 4.16, which discusses both actual and

constructive possession. Because the State had proceeded only on a theory of actual

possession, it was error to give IPI 4.16. The instruction introduced constructive

possession as a new theory of the case, and defendant did not have the opportunity

to address it during the trial.

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

§32-8(a)

People v. Blackwood, 2019 IL App (3d) 160161 (8/12/19)

Trial counsel was not ineffective for failing to request an adverse inference

instruction where police officer conducted field sobriety tests outside of view of squad

car video camera. IPI Civil 5.01 provides that if a party fails to offer evidence within

its power to produce, the jury may infer that the evidence would be adverse to that

party if certain factors are shown. General use of such an instruction in criminal cases

could infringe on a defendant’s Fifth Amendment right because a criminal defendant

is not required to produce any evidence.

Further, while it may be arguable that an adverse inference instruction could

be an appropriate discovery sanction where an officer fails to record field sobriety

tests, defendant specifically stated that he was not arguing trial counsel’s

ineffectiveness for failing to seek a discovery sanction.

§32-8(a)

People v. Sims, 2019 IL App (3d) 170417 (8/5/19)

At defendant’s trial for unlawful possession of a weapon by a felon, the trial

court did not err in giving IPI 3.01, instructing the jurors that proof of the specific

date of the commission of the offense was not a necessary element. While the trial

included evidence of defendant’s possession of a gun on a separate, prior occasion, it

was clear to the jury which incident was on trial. Thus, there was no risk that the

instruction would cause the jurors to convict defendant on the uncharged, prior

possession. Further, the instruction was proper because the evidence was that the

gun at issue was found sometime after 11 p.m. on the date in question, leaving open

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the possibility that it might have been found after midnight and therefore on the next

day.

(Defendant was represented by Supervisor Mark Fisher, Ottawa.)

JUVENILE PROCEEDINGS

§33-6(g)(1)

People v. Murphy, 2019 IL App (4th) 170646 (8/27/19)

Following his convictions for murder and attempt murder, the 16-year-old

defendant received consecutive sentences of 40 and 15 years’ imprisonment. Although

the sentencing court stated that it considered defendant’s youth and other factors

consistent with Miller and Holman, it also noted that defendant had some

rehabilitative potential. By finding that defendant possessed some rehabilitative

potential, the court could not have found defendant permanently incorrigible and

eligible for a de facto natural life sentence. The case was remanded for a sentence

shorter than 40 years, consistent with Buffer.

(Defendant was represented by Assistant Defender Caroline Bourland,

Chicago.)

§33-6(g)(2)

People v. Peacock, 2019 IL App (1st) 170308 (8/1/19)

In a successive post-conviction petition, defendant challenged as an

unconstitutional de facto life sentence his 80-year sentence for a 1995 murder,

committed when he was 17 years old. Defendant is eligible for day-for-day credit

against his sentence, which means he may be released after serving only half of his

sentence, or 40 years. In People v. Buffer, 2019 IL 122327, the Supreme Court held

that a sentence of 40 years or more imposed on a juvenile is a de facto life sentence.

Here, the Appellate Court found that it did not need to decide whether a

sentence must be more than 40 years to be considered de facto life or whether a

sentence of exactly 40 years would be de facto life. Instead, the Appellate Court

concluded that it is the actual sentence which was imposed, 80 years “with the mere

possibility of release after 40 years,” which controls the determination. Good conduct

credit is discretionary, and to be released at 40 years defendant would have to receive

every single day of credit for which he was eligible. Under Buffer, 80 years is clearly

a de facto life sentence.

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While the sentencing court was aware of defendant’s young age, had a

presentence investigation report, and heard evidence in aggravation and mitigation,

the record failed to show that the court specifically considered youth and its attendant

characteristics. Accordingly, defendant’s de facto life sentence violates the 8th

Amendment, and the matter was remanded for a new sentencing hearing at which

defendant should be sentenced under the current sentencing scheme, 730 ILCS 5/5-

4.5-105.

(Defendant was represented by Assistant Defender Manuela Hernandez,

Chicago.)

§33-6(g)(4)

People v. Ramsey, 2019 IL App (3d) 160759 (8/30/19)

Defendant pled guilty to several criminal offenses and received the death

penalty. The governor commuted his sentence to life imprisonment when the death

penalty was abolished. Defendant alleged that his commuted sentence violated

Miller because he was 18 at the time of the offense and the governor did not consider

his youth and its attendant characteristics.

The Appellate Court affirmed the second-stage dismissal of the petition. It first

held that defendant was not precluded from challenging the governor’s decision

because while commutations are politically unfettered, these decision are still

constrained by the constitution. Therefore, a defendant can bring a Miller challenge

when the sentence is imposed by the governor. Here, however, the defendant’s Miller

challenge lacked merit. Defendant was not a juvenile, and unlike the 19 year-old in

People v. House, 2019 IL App (1st) 110580-B, the defendant here acted as the

principal and committed acts of violence against multiple minors.

(Defendant was represented by Assistant Defender Tiffany Green, Chicago.)

REASONABLE DOUBT

§41-4

People v. McVay, 2019 IL App (3d) 150821 (8/30/19)

Circumstantial evidence proved beyond a reasonable doubt that the decedent

was a victim of murder and did not die by accidental means. Medical evidence

established only that the cause of death was asphyxia of some sort. But, other

evidence included that body was found outdoors in cold weather, in a remote location,

unclothed, and that the victim had not died in that location but rather had been

moved after death. Defendant was in possession of the victim’s ATM card and her

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car, and the body was found out-of-state, within five miles of the residence of a woman

with whom defendant had a relationship.

(Defendant was represented by Assistant Defender Kelly Taylor, Ottawa.)

§§41-4, 41-5

People v. Tatum, 2019 IL App (1st) 162403 (8/7/19)

Where the State’s evidence was entirely circumstantial, defendant was proved

guilty beyond a reasonable doubt despite conflicts in witness testimony and the fact

that multiple witnesses had a history of drug use or a criminal record. The fact that

one witness’s testimony contradicts another’s does not render each of them unworthy

of belief. While the witnesses’ testimony varied here, the witnesses did agree on

certain essential facts. And, the trier of fact is free to accept as much or as little of a

witness’s testimony as it chooses.

(Defendant was represented by Assistant Defender Sarah Curry, Chicago.)

SENTENCING

§44-1(c)(1)

People v. Murphy, 2019 IL App (4th) 170646 (8/27/19)

Following his convictions for murder and attempt murder, the 16-year-old

defendant received consecutive sentences of 40 and 15 years’ imprisonment. Although

the sentencing court stated that it considered defendant’s youth and other factors

consistent with Miller and Holman, it also noted that defendant had some

rehabilitative potential. By finding that defendant possessed some rehabilitative

potential, the court could not have found defendant permanently incorrigible and

eligible for a de facto natural life sentence. The case was remanded for a sentence

shorter than 40 years, consistent with Buffer.

(Defendant was represented by Assistant Defender Caroline Bourland,

Chicago.)

§44-1(c)(2)

People v. Peacock, 2019 IL App (1st) 170308 (8/1/19)

In a successive post-conviction petition, defendant challenged as an

unconstitutional de facto life sentence his 80-year sentence for a 1995 murder,

committed when he was 17 years old. Defendant is eligible for day-for-day credit

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against his sentence, which means he may be released after serving only half of his

sentence, or 40 years. In People v. Buffer, 2019 IL 122327, the Supreme Court held

that a sentence of 40 years or more imposed on a juvenile is a de facto life sentence.

Here, the Appellate Court found that it did not need to decide whether a

sentence must be more than 40 years to be considered de facto life or whether a

sentence of exactly 40 years would be de facto life. Instead, the Appellate Court

concluded that it is the actual sentence which was imposed, 80 years “with the mere

possibility of release after 40 years,” which controls the determination. Good conduct

credit is discretionary, and to be released at 40 years defendant would have to receive

every single day of credit for which he was eligible. Under Buffer, 80 years is clearly

a de facto life sentence.

While the sentencing court was aware of defendant’s young age, had a

presentence investigation report, and heard evidence in aggravation and mitigation,

the record failed to show that the court specifically considered youth and its attendant

characteristics. Accordingly, defendant’s de facto life sentence violates the 8th

Amendment, and the matter was remanded for a new sentencing hearing at which

defendant should be sentenced under the current sentencing scheme, 730 ILCS 5/5-

4.5-105.

(Defendant was represented by Assistant Defender Manuela Hernandez,

Chicago.)

§44-1(c)(4)

People v. Ramsey, 2019 IL App (3d) 160759 (8/30/19)

Defendant pled guilty to several criminal offenses and received the death

penalty. The governor commuted his sentence to life imprisonment when the death

penalty was abolished. Defendant alleged that his commuted sentence violated

Miller because he was 18 at the time of the offense and the governor did not consider

his youth and its attendant characteristics.

The Appellate Court affirmed the second-stage dismissal of the petition. It first

held that defendant was not precluded from challenging the governor’s decision

because while commutations are politically unfettered, these decision are still

constrained by the constitution. Therefore, a defendant can bring a Miller challenge

when the sentence is imposed by the governor. Here, however, the defendant’s Miller

challenge lacked merit. Defendant was not a juvenile, and unlike the 19 year-old in

People v. House, 2019 IL App (1st) 110580-B, the defendant here acted as the

principal and committed acts of violence against multiple minors.

(Defendant was represented by Assistant Defender Tiffany Green, Chicago.)

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SEX OFFENSES

§45-7(a)

People v. Wells, 2019 IL App (1st) 163247 (8/8/19)

The Appellate Court lacked jurisdiction to consider defendant’s constitutional

challenge to the Sex Offender Registration Act. Although defendant’s registration

requirement was a consequence of his conviction in the instant case, distinguishing

his situation from that in People v. Bingham, 2018 IL 122008, it was still a

collateral consequence that was not part of the trial court’s judgment. Defendant

must either obtain reversal of his conviction or pursue a civil suit to be relieved of his

registration obligations.

(Defendant was represented by Assistant Defender Pamela Rubeo, Chicago.)

SPEEDY TRIAL

§§46-1(b)(1), 46-5(b)

People v. Tatum, 2019 IL App (1st) 162403 (8/7/19)

Defendant’s failure to raise speedy trial objection in post-trial motion forfeited

claim that his 120-day statutory speedy trial right was violated even though

defendant objected when the State requested and obtained an extension of the term

in an effort to locate a missing witness. To find that defendant had preserved the

claim simply by objecting to the continuance would obviate the need for a defendant

to include most issues in a post-trial motion in order to preserve them. While there is

a constitutional right to a speedy trial, the constitutional issue exception did not

apply because defendant argued only that his statutory speedy trial right was

violated.

Further, there was no error, and therefore no plain error, where the trial court

considered the State’s efforts to find the missing witness and concluded that an

extension might allow the State to locate the witness. While it may have been a close

call, the court’s decision was not arbitrary or unreasonable, and thus not an abuse of

discretion.

(Defendant was represented by Assistant Defender Sarah Curry, Chicago.)

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TRAFFIC OFFENSES

§49-2(c)

City of McHenry v. Kleven, 2019 IL App (2d) 180758 (8/13/19)

The Illinois Administrative Code requires that defendant be subject to a 20-

minute observation period before a breathalyzer is administered. 20 Ill. Adm. Code

1286.310(a). Substantial compliance will satisfy that regulation. Here, the police

officer left the booking room for more than two minutes during the observation period,

and could not see or hear defendant during his absence. Accordingly, the trial court

found that the 20-minute observation period was not satisfied and ordered the breath-

test results suppressed.

The Appellate Court disagreed, finding there had been substantial compliance.

Defendant was recorded on audio and video during the entire observation period, and

the officer testified that defendant said he did not burp or vomit during the officer’s

absence. While the officer’s absence was a serious problem, his failure to personally

observe defendant did not render the test results unreliable. Continuous visual

observation of the individual is not required if there are other ways to ensure the test

was not compromised. Here, the video satisfied that requirement. The trial court’s

order suppressing the breath-test result was reversed, and the matter was remanded.

VENUE & JURISDICTION

§52

People v. McVay, 2019 IL App (3d) 150821 (8/30/19)

Although the murder victim’s body was discovered in Minnesota, there was

jurisdiction to prosecute defendant in Illinois for first degree murder and concealment

of a homicidal death. Jurisdiction may be proved by circumstantial evidence. Here,

the victim’s cell phone was last used in Illinois, carpet fibers on the victim’s body were

consistent with those recovered from defendant’s apartment in Illinois, defendant

admitted the victim had been at his apartment before she went missing, defendant

used the victim’s ATM card at a gas station in Illinois, and marks on the body

established that the victim had been moved sometime after her death.

(Defendant was represented by Assistant Defender Kelly Taylor, Ottawa.)

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WAIVER - PLAIN ERROR - HARMLESS ERROR

§54-1(b)(3)(a)

People v. Tatum, 2019 IL App (1st) 162403 (8/7/19)

Defendant’s failure to raise speedy trial objection in post-trial motion forfeited

claim that his 120-day statutory speedy trial right was violated even though

defendant objected when the State requested and obtained an extension of the term

in an effort to locate a missing witness. To find that defendant had preserved the

claim simply by objecting to the continuance would obviate the need for a defendant

to include most issues in a post-trial motion in order to preserve them. While there is

a constitutional right to a speedy trial, the constitutional issue exception did not

apply because defendant argued only that his statutory speedy trial right was

violated.

Further, there was no error, and therefore no plain error, where the trial court

considered the State’s efforts to find the missing witness and concluded that an

extension might allow the State to locate the witness. While it may have been a close

call, the court’s decision was not arbitrary or unreasonable, and thus not an abuse of

discretion.

(Defendant was represented by Assistant Defender Sarah Curry, Chicago.)

§§54-1(b)(3)(b), 54-1(b)(11)(a)

People v. Alexander, 2019 IL App (3d) 160709 (8/27/19)

Although defendant’s motion for new trial was filed more than 30 days after

the guilty verdict, defendant did not forfeit his claim of error. The motion was filed

prior to sentencing, at a time when the trial court still had jurisdiction over the

matter. The State failed to challenge the motion’s timeliness, thereby waiving any

objection, and the trial court considered and ruled on the motion.

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

WEAPONS

§55-5

People v. Alexander, 2019 IL App (3d) 160709 (8/27/19)

Evidence at defendant’s trial for unlawful use of a weapon by a felon included

that police recovered a gun from the ground along the route of defendant’s flight from

a traffic stop. During deliberations, the jury requested a definition of “possession.”

16

Over defense objection, the court gave IPI 4.16, which discusses both actual and

constructive possession. Because the State had proceeded only on a theory of actual

possession, it was error to give IPI 4.16. The instruction introduced constructive

possession as a new theory of the case, and defendant did not have the opportunity

to address it during the trial.

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