Office of the State Appellate Defender

Illinois Criminal Law Digest

October 2017

MICHAEL J. PELLETIER P.O. Box 5240

State Appellate Defender Springfield, IL 62705-5240

Phone: 217/782-7203

DAVID P. BERGSCHNEIDER http://www.state.il.us/defender/

JAMES CHADD

Deputy State Appellate Defenders, Editors

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

TABLE OF CONTENTS

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

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

BURGLARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

GUILTY PLEAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

JUDGES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

JURY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

JUVENILE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

PROBATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

REASONABLE DOUBT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ROBBERY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

SEARCH & SEIZURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

SENTENCING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

STATUTES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

TRIAL PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

VENUE & JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

VERDICTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TABLE OF AUTHORITIES

Illinois Supreme Court

In re Destiny P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 20

People v. Bailey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Reese. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 17, 20

Illinois Appellate Court

In re Omar F.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

People v. Bradley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Bridges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Grigorov. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19

People v. Gullens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Henson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12

People v. Johnson (4-16-0853). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

People v. Johnson (4-16-0920). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Lee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

People v. Murray. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Paddy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

People v. Parrott. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

People v. Sheley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Smith.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Tate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Upshaw.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

APPEAL

§2-2(b)People v. Parrott, 2017 IL App (3d) 150545 (No. 3-15-0545, 10/5/17)

Twenty-eight days after he was sentenced for domestic battery, defendant appearedin court and stated that he wanted to appeal. The trial court ordered the clerk to filea notice of appeal. However, the notice of appeal was not filed until 31 days aftersentencing. No motion for leave to file a late notice of appeal was filed within six months.On appeal, the State argued that the Appellate Court lacked jurisdiction to considerthe case.

The court rejected the State’s argument. In People v. Sanders, 40 Ill. 2d 458,240 N.E.2d 627 (1968), the Supreme Court held that the Appellate Court should havegranted a motion for leave to file a late notice of appeal where the defendant asked foran appeal within 30 days of sentencing but the trial court failed to respond to the request.The Sanders court stated, “We hold that the failure of the trial court clerk to prepareand file defendant’s notice of appeal provided reasonable excuse for the defendant’sfailure to file his own notice of appeal on time and that, therefore, the appellate courterred in dismissing defendant’s motion requesting leave to file a late appeal.”

The Appellate Court concluded that the same rule should apply where thedefendant requests an appeal within 30 days, the trial court directs the clerk to file anotice of appeal, but the clerk fails to file the notice of appeal on time. Because it wasreasonable for defendant to rely on the court’s direction to the clerk, the notice of appealshould be deemed to have been timely filed.

(Defendant was represented by Assistant Defender Mark Fisher, Ottawa.)

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§2-6(a)People v. Grigorov, 2017 IL App (1st) 143274 (No. 1-14-3274, modified upon denialof rehearing 10/10/17)

On April 10, 2014, defendant pled guilty and the trial court imposed “allmandatory fines, fees, and court costs” on defendant. Defendant did not file a motionto withdraw his plea or a notice of appeal within 30 days. In August 2014, defendantfiled a motion asking the trial court to vacate $6000 in assessments due to his inabilityto pay. Defendant did not argue that any of the fines or fees were erroneously assessed;he merely argued his inability to pay.

The trial court denied defendant’s motion. On appeal, defendant abandoned hisargument about lacking the ability to pay, and instead argued that he was entitled topre-sentence credit to offset his fines and that certain fines and fees had been erroneously

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imposed. The Appellate Court held that it had jurisdiction to address the pre-sentencecredit issue but not the issue about improper imposition.

Generally, the circuit court loses jurisdiction to alter a sentence after 30 days.An exception to this rule applies when a defendant files a petition seeking financial reliefunder section 5-9-2. 730 ILCS 5/5-9-2. Under this freestanding collateral action, the trialcourt may revoke any unpaid portion of a fine or may modify the method of payment.A defendant may file a 5-9-2 petition at any time.

But in this case, defendant was not arguing that the trial court improperly deniedhis 5-9-2 petition. Instead, he raised “entirely new and unrelated claims” that challengedhis original sentence. The only claim the Appellate Court could address was the issueof pre-sentence credit since such credit may be awarded merely “upon application of thedefendant.” 725 ILCS 5/110-14. A defendant may apply for that credit “at any time andat any stage of court proceedings, even on appeal in a postconviction proceeding.” TheAppellate Court, however, did not have jurisdiction to address claims about fines andfees other than pre-sentence credit.

The court applied defendant’s pre-sentence credit to offset his assessments.

(Defendant was represented by Assistant Defender Katie Anderson, Chicago.)

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BATTERY, ASSAULT & STALKING OFFENSES

§7-1(a)(1)People v. Lee, 2017 IL App (1st) 151652 (No. 1-15-1652, 10/31/17)

To prove the offense of battery, the State must show that a defendant knowinglycaused bodily harm to another. 720 ILCS 5/12-3(a). A defendant acts knowingly whenhe is consciously aware that a result is practically certain to happen. 720 ILCS 5/4-5(b).

Defendant arrived at the hospital in an agitated state after a failed suicideattempt. A nurse tried to remove defendant’s necklace with an attached metal cross sinceshe feared it could be used as a potential weapon. Defendant refused, cursed at her, andthreatened to kill her. The nurse told defendant the necklace had to be removed for safetyreasons and reached toward defendant to remove it. As she attempted to unclasp thenecklace, defendant pulled away and clutched the cross in his hand. The chain brokeand defendant struck the nurse in the forehead with the cross, causing her bodily harm.

The Appellate Court held that the State failed to prove that defendant intendedto hit the nurse and thus he did not commit battery. Instead, defendant inadvertentlyhit the nurse with the cross when he tried to prevent her from removing the necklace.

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Defendant’s conviction was reversed.

(Defendant was represented by former Assistant Defender Joy Reedy, Chicago.)

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BURGLARY

§8-1(a)People v. Henson, 2017 IL App (2d) 150594 (No. 2-15-0594, 10/31/17)

1. There are three methods for determining whether a crime is a lesser includedoffense: (1) the abstract elements approach, (2) the charging instrument approach, and(3) the factual or evidence approach. Where the issue is whether an uncharged offenseis a lesser included offense of a charged offense, the charging instrument approachapplies. Under this approach, the lesser offense need not be a necessary part of thegreater offense, but the facts alleged in the charging instrument must contain the broadfoundation or main outline of the lesser offense.

Where the indictment alleged that defendant committed burglary in that heknowingly entered a motor vehicle with the intent to commit a theft, theft was sufficientlyidentified to be a lesser included offense. The court stressed that the burglary chargealleged that defendant intended to obtain unauthorized control over property, whichis the essence of theft.

2. Even where a crime is a lesser included offense, the defense is entitled to a lesserincluded offense instruction only if the evidence would permit a jury to rationally convictof the lesser offense while acquitting of the greater offense. This standard was satisfiedhere. The evidence showed that on the night in question, trucks at a business had beenentered and items removed. Defendant was seen a short distance away from the businesspremises while in possession of items that had been taken from the trucks. There wasno direct evidence that defendant entered into the business’s property, and there wasno security video from the lot or fingerprints indicating that defendant was at thebusiness.

Although it could be inferred that defendant actually entered the property andremoved the items, it could also be rationally inferred that defendant found the itemsafter they had been taken by someone else and intended to keep them. Because theevidence would have allowed the jury to acquit of burglary and convict of theft, defendantwas entitled to a lesser included offense instruction.

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COLLATERAL REMEDIES

§9-1(b)(3)People v. Upshaw, 2017 IL App (1st) 151405 (No. 1-15-1405, 10/30/17)

At the time of this appeal from a second-stage dismissal of a post-convictionpetition, 725 ILCS 5/122-1(c) provided a six-month statute of limitations after denialof a petition for leave to appeal, unless the petitioner alleged facts showing that the delaywas not due to his or her culpable negligence. Thus, an untimely petition was not subjectto dismissal if the petitioner alleged facts showing that the delay in filing a petition wasnot due to his or her culpable negligence. Culpable negligence means something greaterthan ordinary negligence and is akin to recklessness.

The Appellate Court concluded that defendant made a sufficient allegation thatthe eight-month delay in filing his post-conviction petition was not due to his culpablenegligence. Defendant submitted DOC records showing that in the six months betweenthe time the petition for leave to appeal was denied and the post-conviction petition wasdue, the facility in which defendant was incarcerated was on lockdown at least 86 days.The petition alleged that after each lockdown, it took an additional two weeks to geta new library pass. The Appellate Court found that accepting these allegations as truefor purposes of the second-stage proceedings, defendant had at most 27 non-consecutivedays of access to the library during the six-month period before his petition was due.

In addition, the institution was on lockdown for at least an additional 60 daysduring the eight-month period between the due date and the date the petition was filed.Considering the two week delay in regaining library access following each lockdown,defendant had at most 90 non-consecutive additional days of library access before hefiled the petition. Defendant also alleged that the lockdowns were not due to his actions.

Defendant also submitted documents showing that he began working on his post-conviction petition before the due date, but the prison staff lost his trial transcripts andlegal materials. Defendant alleged that he spent a great deal of time and effort tryingto regain access to the materials, but was forced to file the petition without the aid ofthose materials.

The Appellate Court concluded that under these circumstances, defendant carriedhis burden of making a substantial showing that the delay in filing the petition wasnot due to his culpable negligence. Therefore, the petition should have proceeded to athird-stage evidentiary hearing.

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§9-1(i)(1)People v. Bailey, 2017 IL 121450 (No. 121450, 10/5/17)

Generally, the Post-Conviction Hearing Act contemplates that a defendant willonly be allowed to file one post-conviction petition and any claim not raised in the originalor amended petition is waived. 725 ILCS 5/122-3. Section 122-1(f) provides a limitedexception to this rule. It permits successive petitions if the defendant first obtainspermission from the court and demonstrates cause and prejudice for not raising issuesin the first petition. This provision does not mention what role, if any, the State mayplay at the cause-and-prejudice stage. The statute contains no express language eitherpermitting or forbidding the State’s input when the court decides whether to grant adefendant’s motion for leave to file a successive petition.

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

The Supreme Court held that the State should have no input into the trial court’sdecision to allow or deny defendant’s motion to file a successive petition. The cause andprejudice determination is a question of law to be decided on the pleadings. The motionis directed to the court and the court must decide the legal question of cause andprejudice. Although the Act does not expressly prohibit the State’s input, the Actcontemplates that the trial court will conduct an independent determination. Permittingthe State to argue against a finding of cause and prejudice when defendant is notrepresented by counsel is “inequitable, fundamentally unfair, and raises due processconcerns.”

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

(Defendant was represented by Assistant Defender Jessica Arizo, Elgin.)

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§9-2(a)People v. Bradley, 2017 IL App (4th) 150527 (No. 4-15-0527, 10/2/17)

Due process requires an opportunity to be heard at a meaningful time and manner.A trial court violates due process if it grants a motion to dismiss a complaint withoutgiving the opposing party notice and a meaningful opportunity to be heard.

In April 2015, defendant filed a pro se 2-1401 petition for relief from judgment.On May 18, 2015, the State filed a motion to dismiss and on the same day mailed a copyof the motion to defendant who was incarcerated. On May 20, 2015, the trial courtdismissed defendant’s motion in a written order indicating that it had considered theState’s motion and agreed with its arguments.

The Appellate Court held that the trial court denied defendant his right to dueprocess when it granted the State’s motion two days after it was filed without allowingdefendant notice and a meaningful opportunity to respond. The Appellate Court rejectedthe State’s argument that there was no need to remand the case since the trial court’s“procedural error,” as the State characterized it, was not prejudicial. Instead, theAppellate Court held that the trial court’s failure to afford defendant an opportunityto respond “was inherently prejudicial and undermined the integrity of the proceedings.”

The case was remanded for further proceedings on defendant’s petition.

(Defendant was represented by Assistant Defender Marty Ryan, Springfield.)

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COUNSEL

§13-2People v. Reese, 2017 IL 120011 (No. 120011, 10/19/17)

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

Here the trial court admonished defendant about the potential sentences he faced,including that some of his sentences could run consecutively, and that two charges alonecarried a maximum potential sentence of 160 years. The court however failed to admonishdefendant that his sentences would run consecutively to his existing natural life sentencefor a previous murder conviction.

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The Supreme Court held that the trial court substantially complied with Rule401(a). Defendant was informed that he faced “massive time” and the admonitions “surelyimpressed upon defendant the gravity of the potential punishments.” The failure toinform defendant that his potential sentences could run consecutive to his natural lifesentence could not have affected his decision to waive counsel.

Defendant’s conviction was affirmed.

(Defendant was represented by Assistant Defender David Harris, Chicago.)

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§§13-4(b)(1)(a), 13-4(b)(1)(c), 13-4(b)(6), 13-4(b)(10)People v. Upshaw, 2017 IL App (1st) 151405 (No. 1-15-1405, 10/30/17)

1. Trial counsel has a duty to make a reasonable investigation or a reasonabledecision that a particular investigation is unnecessary. Thus, the failure to interviewwitnesses may indicate ineffectiveness, especially where the witnesses are known totrial counsel and their testimony is exonerating.

Although whether to present a witness is a matter of strategy, valid strategicdecisions may be made only after there has been a thorough investigation of law andfacts relevant to the options. In addition, it may be ineffectiveness to fail to presentexculpatory evidence of which counsel is aware, including failing to call witnesses whosetestimony would support an otherwise uncorroborated defense.

Here, defendant made a substantial showing that trial counsel was deficient forfailing to contact a known alibi witness who alleged in his affidavit that he was withdefendant in defendant’s home at the time the offense occurred on the street. Theaffidavit indicated that defendant provided trial counsel with the witness’s address andtelephone number and said that the witness would be willing to testify to defendant’salibi. The record suggests no strategic reason that counsel would have decided not toinvestigate the alibi or interview the witness.

In addition, the prejudice component of Strickland was satisfied where the caseagainst defendant rested on an inculpatory statement which he gave after 28½ hoursin police custody. That statement was inconsistent with the events as related by a policeofficer’s testimony, and defendant did not fit the description of the shooter. In addition,a jury note during deliberations indicated an impasse concerning the credibility ofdefendant’s statement. Under these circumstances, defendant made a substantialallegation that had trial counsel interviewed and presented the alibi witness, there wasa reasonable probability that the result of the trial would have been different.

2. Defendant also made a substantial allegation that appellate counsel wasineffective for failing to argue on direct appeal that an Apprendi violation occurred.

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Defendant was sentenced to an extended term of 50 years based on the trial court’sfinding that the offense was accompanied by exceptionally brutal behavior indicativeof wanton cruelty. Apprendi requires that the finding of exceptionally brutal andheinous behavior be made by the jury rather than by the trial court.

Although trial counsel’s failure to object at trial meant that a plain error analysiswas required on appeal, the Appellate Court concluded that even under the plain errorstandard the issue would have succeeded. First, the evidence to support the extendedterm sentence was at best closely balanced. Second, appellate counsel was clearly awareof the Apprendi rule, because another Apprendi issue was raised. Under thesecircumstances, defendant made a sufficient allegation of ineffectiveness to withstandsecond stage dismissal.

The trial court’s dismissal order was reversed and the cause remanded for thirdstage proceedings.

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§§13-5(d)(3)(a)(1), 13-5(d)(3)(a)(2)People v. Murray, 2017 IL App (3d) 150586 (No. 3-15-0586, 10/31/17)

Under People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), a post-trialclaim of ineffective assistance of counsel does not automatically require that new counselbe appointed to proceed with the claim. Instead, the trial court must make a preliminaryinquiry into the claim. If that inquiry reveals possible neglect of the case, new counselmust be appointed to pursue the claim at a full hearing.

The trial court’s determination that the defendant’s claim does not demonstratepossible neglect of the case will be reversed where that decision is manifestly erroneous.Manifest error is error which is plain, evident, and indisputable.

The Appellate Court concluded that in this case, it was clear that defense counselmay have neglected the case. Defendant alleged that defense counsel told him that hismere presence in a hotel constituted residential burglary. Defense counsel implicitlyadmitted that before the guilty plea was entered, he told defendant that he committedresidential burglary if he entered a hotel room, even though defendant claimed that hisentry had been authorized. “Where . . . defense counsel affirmatively misinforms adefendant regarding the elements the State must prove to sustain a conviction, possibleneglect . . . is evident.”

The trial court’s denial of defendant’s claim of ineffective assistance was reversed,and the cause was remanded with instructions to appoint new counsel and hold a fullKrankel hearing.

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(Defendant was represented by Assistant Defender Editha Rosario-Moore,Chicago.)

GUILTY PLEAS

§§24-8(a), 24-8(b)(1)People v. Johnson, 2017 IL App (4th) 160920 (No. 4-16-0920, 10/31/17)

Under Supreme Court Rule 604(d), a defendant who has entered a negotiatedguilty plea where the State has bound itself to recommend a specific sentence or a specificrange of sentence, or has made concessions relating to the sentence, may not challengehis sentence as excessive.

Defendant pled guilty in exchange for the State’s agreement to dismiss certaincharges and recommend a sentencing cap of 13 years imprisonment. Following asentencing hearing, the trial court sentenced defendant to 11 years imprisonment. Onappeal, defendant argued that the trial court considered improper factors duringsentencing.

The Appellate Court held that under Rule 604(d), a defendant who has entereda negotiated guilty plea may not argue that his sentence is excessive, but may arguethat he was denied a fair sentencing hearing. When a defendant argues that the trialcourt relied on an improper sentencing factor, defendant is asserting that he was deprivedof his constitutional right to a fair sentencing hearing. The mere fact that a defendanthas entered a negotiated plea does not mean he has agreed to give up his right to befairly sentenced.

Here the trial court improperly relied on a factor inherent in the offense insentencing defendant. The State did not contest that this was error. The Appellate Courttherefore remanded defendant’s case for a new sentencing hearing.

(Defendant was represented by Assistant Defender Daaron Kimmel, Springfield.)

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§24-8(b)(1)People v. Bridges, 2017 IL App (2d) 150718 (No. 2-15-0718, 10/6/17)

When a defendant moves to withdraw his guilty plea, Rule 604(d) requires counselto certify that she has made any amendments to the motion that are necessary toadequately present any errors relating to defendant’s plea. Where counsel has filed a

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facially valid certificate of compliance, the reviewing court may consult the record todetermine whether she actually fulfilled her 604(d) obligations.

Counsel filed an amended motion to withdraw defendant’s guilty plea arguingthat defendant’s plea was made under duress due to acts of violence against his motherand that defendant had not been properly medicated when he pled guilty. Counsel fileda certificate of compliance with Rule 604(d).

At a status hearing where defendant was not present, the court asked if the caseshould be continued for argument. Defense counsel stated that the written motion laidout the necessary arguments. She added that she could have defendant testify butdoubted whether there were “any issues about any of the factual issues.” The Stateargued that the record showed that defendant understood what was going on and nothreats had been made. The parties stated that there was no evidence to present.

At the next court date, the parties declined to present additional argument. Thetrial court denied defendant’s motion, stating that there was nothing in the record toindicate that defendant needed any medications and that the alleged harassment ofdefendant’s mother did not render his plea involuntary.

The Appellate Court held that the record refuted counsel’s certificate of compliance.Counsel presented detailed factual allegations in defendant’s amended motion towithdraw, but none of those allegations were supported by the record. Under 604(d),facts that do not appear in the record must be supported by an affidavit. Thus to fulfillher duties, counsel was obligated to attach an affidavit substantiating her allegations.By failing to do so, counsel did not comply with Rule 604(d).

The court also held that the hearing on defendant’s motion was inadequate underRule 604(d). Counsel prepared a detailed motion to withdraw but failed to offer anyargument or evidence to support it. This failure “functioned as a concession that themotion was without merit.” The hearing thus served no purpose.

The Court remanded the case for filing a valid 604(d) certificate, the opportunityto file a new motion to withdraw and/or reconsider sentence, and a new motion hearing.

(Defendant was represented by Assistant Defender Ann Fick, Elgin.)

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JUDGES

§31-1(a)People v. Sheley, 2017 IL App (3d) 140659 (No. 3-14-0659, 10/27/17)

1. A mistrial should be ordered only where there is an error of such gravity thatit infected the fundamental fairness of the trial and continuation of the proceeding woulddefeat the ends of justice. A trial court’s decision to deny a motion for a mistrial isreviewed for abuse of discretion.

Automatic reversal is required only where an error is deemed structural. Astructural error is a systematic error which erodes the integrity of the judicial processand undermines the fairness of the trial. An error is structural only if it necessarilyrenders a criminal trial fundamentally unfair or unreliable as a means of determiningguilt or innocence.

2. The Appellate Court held that structural error did not occur where the judgefell asleep for a portion of the trial, because such an error does not necessarily renderthe trial fundamentally unfair or unreliable for determining guilt or innocence. Therefore,the error is subject to harmless error analysis.

Here, the judge falling asleep during trial was harmless. The trial judge apparentlyfell asleep while a videotape of contents of security camera footage was being playedand the lights were low. The record does not indicate that either party called on the judgeto make any evidentiary rulings, and the evidence of defendant’s guilt was overwhelming.

(Defendant was represented by Assistant Defender Fletcher Hamill, Elgin.)

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§31-3(c)People v. Tate, 2016 IL App (1st) 140598 (No. 1-14-0598, mod. op. 10/18/17)

1. A defendant has an absolute right to a substitution of judge upon the timelyfiling of a proper written motion. In other words, a motion for automatic substitutionmust be granted if the motion is made within 10 days after the case is placed on thejudge’s trial call, names only one judge (except that a person charged with a Class Xfelony may name two judges), is in writing, and alleges that the trial judge is soprejudiced that defendant cannot receive a fair trial. In addition, the motion must befiled before the trial judge makes any substantive rulings in the case.

A motion for substitution is timely if it is brought within 10 days of the timedefendant can be charged with knowledge that a particular judge has been assignedto the case. Whether a substitution motion is timely is to be determined on the factsof each case.

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2. Here, defendant could not be charged with knowledge that the case had beenassigned to a particular judge where at a preliminary proceeding, the case was assignedfor the next appearance to Room 107, where the judge in question customarily presided.The court concluded that defendant was charged with notice of the judge’s assignmentonly when the Chief Judge officially assigned the case. Because the motion to substitutewas filed within 10 days of the latter date, it was timely.

3. Under Illinois law, the erroneous denial of a motion for automatic substitutionof judge is a “fundamental defect” which voids all subsequent action taken by the judgewho should have been substituted. Because the trial court improperly denied the motionfor automatic substitution, the lower court’s judgment was reversed and the causeremanded for further proceedings.

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JURY

§32-8(i)People v. Henson, 2017 IL App (2d) 150594 (No. 2-15-0594, 10/31/17)

1. There are three methods for determining whether a crime is a lesser includedoffense: (1) the abstract elements approach, (2) the charging instrument approach, and(3) the factual or evidence approach. Where the issue is whether an uncharged offenseis a lesser included offense of a charged offense, the charging instrument approachapplies. Under this approach, the lesser offense need not be a necessary part of thegreater offense, but the facts alleged in the charging instrument must contain the broadfoundation or main outline of the lesser offense.

Where the indictment alleged that defendant committed burglary in that heknowingly entered a motor vehicle with the intent to commit a theft, theft was sufficientlyidentified to be a lesser included offense. The court stressed that the burglary chargealleged that defendant intended to obtain unauthorized control over property, whichis the essence of theft.

2. Even where a crime is a lesser included offense, the defense is entitled to a lesserincluded offense instruction only if the evidence would permit a jury to rationally convictof the lesser offense while acquitting of the greater offense. This standard was satisfiedhere. The evidence showed that on the night in question, trucks at a business had beenentered and items removed. Defendant was seen a short distance away from the businesspremises while in possession of items that had been taken from the trucks. There wasno direct evidence that defendant entered into the business’s property, and there wasno security video from the lot or fingerprints indicating that defendant was at thebusiness.

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Although it could be inferred that defendant actually entered the property andremoved the items, it could also be rationally inferred that defendant found the itemsafter they had been taken by someone else and intended to keep them. Because theevidence would have allowed the jury to acquit of burglary and convict of theft, defendantwas entitled to a lesser included offense instruction.

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JUVENILE

§§33-5(a), 33-5(c)(1)In re Destiny P., 2017 IL 120796 (No. 120796, 10/19/17)

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

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

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

2. The minor argued that she was denied equal protection because, as a first timejuvenile offender charged with first degree murder, she did not have the right to a jurytrial although recidivist juvenile offenders charged as violent juvenile offenders (withtwo serious violent offenses) and habitual juvenile offenders (three serious offenses) bothenjoy the right to jury trials. The Supreme Court concluded that the classes were notsimilarly situated because violent juvenile offenders and habitual juvenile offendersare: (1) charged with crimes other than first degree murder, and (2) face higher sentencesunder statutes which have the legislative purpose of imposing more severe punishmenton recidivist offenders who have little to gain from the rehabilitative aspects of theJuvenile Court Act.

Because the legislature had a rational basis for providing criminal-type proceduresto such recidivist offenders, the distinctions between the classes are not based on criteriawholly unrelated to the purpose of the legislation. Therefore, equal protection was notviolated.

(The minor was represented by Assistant Defender Jessica Fortier, Chicago.)

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§33-6(f)(1)In re Omar F., 2017 IL App (1st) 171073 (No. 1-17-1073, 10/25/17)

1. Trial courts have broad discretion to impose reasonable probation conditionsaimed at fostering rehabilitation and protecting the public, whether or not the conditionsare expressly authorized by statute. The court’s discretion in setting probation conditionsis limited by constitutional safeguards, however. In determining whether a probationcondition is proper, the overriding concern is reasonableness.

To be reasonable, a probation condition must not be overly broad considering thedesired goal and the means of achieving that goal. When assessing the reasonablenessof a condition of probation, it is appropriate to consider whether the condition is relatedto the nature of the offense or the rehabilitation of the probationer. Other factors includewhether the probation condition reasonably relates to the rehabilitative purpose of thelegislation, whether the value to the public in imposing the condition manifestlyoutweighs the impairment to the probationer’s constitutional rights, and whether thereare alternative conditions that would be less disruptive to the probationer’s constitutionalrights but still comport with the purposes of conferring probation.

A probationary condition is overbroad and therefore unreasonable when thereis no valid purpose for a restriction and no means by which the probationer may obtainexemption from the restriction for legitimate purposes.

2. Where the probationer was ordered to avoid contact with gang members andgang activity, clear his social media of gangs and drugs, and not post or appear in anypictures with gang members, the condition was overbroad and unreasonable. The courtacknowledged that the “no gang contact” provision was a valid condition of probationbecause it was reasonably related to rehabilitation and was expressly authorized by705 ILCS 405/5-715(2)(s). The court also concluded that the term “contact” could beextended to include an individual’s online presence.

However, the blanket order requiring the respondent to “stay away” from andhave “no contact” with gang members and remove any social media posts involving gangmembers was overbroad. The court noted that there was no method by which therespondent could obtain an exemption from the restrictions for legitimate purposes suchas those based on familial, employment, or educational relationships, and no explanationof the specific conduct which would result in a probation violation.

3. The court found that the overbroad probation condition constituted plain errorunder both the first and second prongs of the plain error rule. First, the evidence thatdefendant was involved in gang activity was closely balanced. Second, because theblanket prohibition against contact with gangs was “simply too general and overbroadto provide a juvenile with clear parameters about how to comply with the conditionsof his probation,” the integrity of the judicial process was affected.

(Defendant was represented by Assistant Defender Jonathan Pilsner, Chicago.)

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PROBATION, PERIODIC IMPRISONMENT, CONDITIONAL DISCHARGE & SUPERVISION

§§40-4(a), 40-4(c)In re Omar F., 2017 IL App (1st) 171073 (No. 1-17-1073, 10/25/17)

1. Trial courts have broad discretion to impose reasonable probation conditionsaimed at fostering rehabilitation and protecting the public, whether or not the conditionsare expressly authorized by statute. The court’s discretion in setting probation conditionsis limited by constitutional safeguards, however. In determining whether a probationcondition is proper, the overriding concern is reasonableness.

To be reasonable, a probation condition must not be overly broad considering thedesired goal and the means of achieving that goal. When assessing the reasonablenessof a condition of probation, it is appropriate to consider whether the condition is relatedto the nature of the offense or the rehabilitation of the probationer. Other factors includewhether the probation condition reasonably relates to the rehabilitative purpose of thelegislation, whether the value to the public in imposing the condition manifestlyoutweighs the impairment to the probationer’s constitutional rights, and whether thereare alternative conditions that would be less disruptive to the probationer’s constitutionalrights but still comport with the purposes of conferring probation.

A probationary condition is overbroad and therefore unreasonable when thereis no valid purpose for a restriction and no means by which the probationer may obtainexemption from the restriction for legitimate purposes.

2. Where the probationer was ordered to avoid contact with gang members andgang activity, clear his social media of gangs and drugs, and not post or appear in anypictures with gang members, the condition was overbroad and unreasonable. The courtacknowledged that the “no gang contact” provision was a valid condition of probationbecause it was reasonably related to rehabilitation and was expressly authorized by705 ILCS 405/5-715(2)(s). The court also concluded that the term “contact” could beextended to include an individual’s online presence.

However, the blanket order requiring the respondent to “stay away” from andhave “no contact” with gang members and remove any social media posts involving gangmembers was overbroad. The court noted that there was no method by which therespondent could obtain an exemption from the restrictions for legitimate purposes suchas those based on familial, employment, or educational relationships, and no explanationof the specific conduct which would result in a probation violation.

3. The court found that the overbroad probation condition constituted plain errorunder both the first and second prongs of the plain error rule. First, the evidence thatdefendant was involved in gang activity was closely balanced. Second, because theblanket prohibition against contact with gangs was “simply too general and overbroad

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to provide a juvenile with clear parameters about how to comply with the conditionsof his probation,” the integrity of the judicial process was affected.

(Defendant was represented by Assistant Defender Jonathan Pilsner, Chicago.)

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§40-5(a)People v. Gullens, 2017 IL App (3d) 160668 (No. 3-16-0668, 10/24/17)

One of the purposes of conditional discharge is to benefit society by restoring adefendant to useful citizenship. Conditional discharge serves as a form of punishmentand a method for rehabilitating a defendant.

Defendant, who had a prior felony conviction, discovered that either his brotheror his friend had stolen a firearm from a gun store. Defendant took possession of thefirearm for approximately 10 minutes while he returned it to the store. The trial courtrevoked his conditional discharge for committing the offense of possession of a firearmby a felon.

The Appellate Court held under the unique circumstances of this case, the purposesof defendant’s conditional discharge were served by his continued liberty. Thoughdefendant technically committed the offense of felon in possession of a weapon, he actedto avoid the greater harm of a stolen firearm being out on the street. Defendant’s actionsthus actually served to protect the public.

The court reversed the revocation of defendant’s conditional discharge.

REASONABLE DOUBT

§42-3People v. Gullens, 2017 IL App (3d) 160668 (No. 3-16-0668, 10/24/17)

The commission of an offense may be justified by reason of necessity where adefendant reasonably believes that his conduct was necessary to avoid a public or privateinjury greater than the injury that might result from his own conduct. 720 ILCS 5/7-13.

Defendant, who had a prior felony conviction, discovered that either his brotheror his friend had stolen a firearm from a gun store. Defendant took possession of thefirearm for approximately 10 minutes while he returned it to the store. The trial courtrevoked his conditional discharge for committing the offense of possession of a firearmby a felon.

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The Appellate Court held that the defense of necessity applied to defendant’sconduct. Defendant reasonably believed that returning the firearm was necessary toavoid a greater injury. Returning the firearm to its rightful owner “undoubtedly promoteda higher value than refraining from being a felon in possession of a weapon for the 10minutes it took to return the gun to the store.”

The court reversed the revocation of defendant’s conditional discharge.

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ROBBERY

§43-4People v. Reese, 2017 IL 120011 (No. 120011, 10/19/17)

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

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

The Supreme Court held that the offense of vehicular invasion includes situationswhere the defendant exercises control over a vehicle by threatening the driver with force.The court noted that a victim may be subject to a greater risk of violence if he remainsin the vehicle with the defendant. Given that greater risk of harm, vehicular hijackingincludes the forceful taking of a vehicle while the driver remains inside.

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

(Defendant was represented by Assistant Defender David Harris, Chicago.)

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SEARCH & SEIZURE

§§44-1(c)(2), 44-2People v. Paddy, 2017 IL App (2d) 160395 (Nos. 2-16-0395, 2-16-0396, 2-16-0403 cons,10/17/17)

1. A traffic stop that exceeds the time reasonably required to handle the matterfor which the stop was made violates the Fourth Amendment. Beyond deciding whetherto issue a ticket, an officer’s mission includes ordinary inquiries incident to a traffic stop,including checking the driver’s license and proof of insurance.

The officer properly stopped a car with Minnesota plates for a traffic violation.The driver had a license but no proof of insurance. The officer took the driver back tohis squad car, began preparing a warning ticket, and conducted a computer-records checkwhich showed that the car was registered in Minnesota. Before the officer completedthe warning ticket, he arranged for a dog sniff. After the warning ticket was ready, hewent back to the car to further determine whether there was proof of insurance. In themeantime, the dog sniff officer arrived, and after the dog performed its search, the officersfound contraband in the car.

2. The court held that the dog search violated the Fourth Amendment. The missionof the traffic stop was complete when the officer finished writing the warning ticket.The officer mistakenly believed he was authorized to further investigate whether thedriver had proof of insurance. But Illinois law does not require drivers of out-of-statevehicles to provide proof of insurance. The officer’s investigation thus unduly prolongedthe traffic stop.

3. The court rejected the State’s argument that the officer’s mistake of law aboutthe need for proof of insurance was objectively reasonable. Illinois law unambiguouslyprovides that an out-of-state vehicle does not need to comply with Illinois insurancerequirements. The officer clearly knew that the stopped vehicle was from Minnesotaand thus he had no reasonable basis to believe the driver needed to provide proof ofinsurance.

The trial court’s suppression of the contraband was affirmed.

(Defendant was represented by Assistant Defender Bruce Kirkham, Elgin.)

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SENTENCING

§§45-7(b), 45-7(c)People v. Grigorov, 2017 IL App (1st) 143274 (No. 1-14-3274, modified upon denialof rehearing 10/10/17)

On April 10, 2014, defendant pled guilty and the trial court imposed “allmandatory fines, fees, and court costs” on defendant. Defendant did not file a motionto withdraw his plea or a notice of appeal within 30 days. In August 2014, defendantfiled a motion asking the trial court to vacate $6000 in assessments due to his inabilityto pay. Defendant did not argue that any of the fines or fees were erroneously assessed;he merely argued his inability to pay.

The trial court denied defendant’s motion. On appeal, defendant abandoned hisargument about lacking the ability to pay, and instead argued that he was entitled topre-sentence credit to offset his fines and that certain fines and fees had been erroneouslyimposed. The Appellate Court held that it had jurisdiction to address the pre-sentencecredit issue but not the issue about improper imposition.

Generally, the circuit court loses jurisdiction to alter a sentence after 30 days.An exception to this rule applies when a defendant files a petition seeking financial reliefunder section 5-9-2. 730 ILCS 5/5-9-2. Under this freestanding collateral action, the trialcourt may revoke any unpaid portion of a fine or may modify the method of payment.A defendant may file a 5-9-2 petition at any time.

But in this case, defendant was not arguing that the trial court improperly deniedhis 5-9-2 petition. Instead, he raised “entirely new and unrelated claims” that challengedhis original sentence. The only claim the Appellate Court could address was the issueof pre-sentence credit since such credit may be awarded merely “upon application of thedefendant.” 725 ILCS 5/110-14. A defendant may apply for that credit “at any time andat any stage of court proceedings, even on appeal in a postconviction proceeding.” TheAppellate Court, however, did not have jurisdiction to address claims about fines andfees other than pre-sentence credit.

The court applied defendant’s pre-sentence credit to offset his assessments.

(Defendant was represented by Assistant Defender Katie Anderson, Chicago.)

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STATUTES

§48-3(c)In re Destiny P., 2017 IL 120796 (No. 120796, 10/19/17)

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

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

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

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

(The minor was represented by Assistant Defender Jessica Fortier, Chicago.)

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TRIAL PROCEDURES

§52-3People v. Reese, 2017 IL 120011 (No. 120011, 10/19/17)

The use of physical restraints in court is permitted only where there is a manifestneed for the restraints. The decision about whether and how to restrain a defendantis left to the trial court’s discretion. Under Illinois Supreme Court Rule 430, the trialcourt must conduct a hearing to determine whether restraints are necessary, must allowthe defendant to be heard, and must make specific findings before permitting the useof restraints.

Here the trial court did not conduct a hearing or articulate any reason for shacklingdefendant during jury selection. Instead, the court deferred to the Department of

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Corrections about whether defendant should be shackled. Under these circumstances,“the trial court clearly abused its discretion in allowing defendant to be shackled duringjury selection,” resulting in a due process violation.

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

(Defendant was represented by Assistant Defender David Harris, Chicago.)

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VENUE & JURISDICTION

Ch. 54People v. Johnson, 2017 IL App (4th) 160853 (No. 4-16-0853, 10/19/17)

The trial court denied defendant’s motion to reconsider sentence on September3, 2014. Defendant filed a notice of appeal on September 4. On September 26, the trialcourt notified the parties that it intended to reconsider it’s denial of defendant’s motionto reconsider sentence and set a hearing date for October 2. The court directeddefendant’s appellate counsel to withdraw his appeal. On September 29, the AppellateCourt allowed defendant’s motion to dismiss his appeal. On October 2, the trial courtheld a hearing and reduced defendant’s sentence. On October 3, defendant filed a noticeof appeal.

The State argued that defendant’s September 4 notice of appeal deprived the trialcourt of jurisdiction to reconsider the denial of his motion to reconsider sentence.According to the State, the dismissal of defendant’s appeal on September 29 did notreturn jurisdiction to the trial court since the Appellate Court did not specifically remandthe case back.

The Appellate Court disagreed. A trial court generally loses jurisdiction 30 daysafter the entry of a final judgment. Here, when the Appellate Court dismissed defendant’sappeal, jurisdiction returned to the trial court for the remainder of the 30-day periodfollowing the denial of defendant’s motion to reduce sentence. The trial court thus hadjurisdiction to reduce defendant’s sentence within the 30-day period.

(Defendant was represented by Assistant Defender Sheril Varughese, Springfield.)

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VERDICTS

§55-3(c)People v. Smith, 2017 IL App (1st) 151312 (No. 1-15-1312, 10/17/17)

Under the one act/one crime doctrine, a defendant may be convicted of two offenseswhere a common act is a part of both crimes. But where two offenses share a commonact, there must be another separate act to sustain both convictions. An act is any overtor outward manifestation which will support a different offense.

The State charged defendant with robbery for taking money from the victim byforce and aggravated battery of a senior citizen for causing the victim great bodily harm.The evidence showed that defendant punched the victim in the side from behind,knocking him to the ground and fracturing his ribs. At some point, defendant tookproperty from the victim. The trial court convicted defendant of both offenses.

The Appellate Court held that defendant could only be convicted of one crime.The record showed that defendant committed a single physical act when he punchedthe victim and that act was the basis for both convictions. The court rejected the State’sargument that defendant used another act of force to take money from the victim sincethere was no evidence explaining how the taking occurred.

The court vacated defendant’s aggravated battery conviction.

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