August 4 Caselaw Updates.

People v. Golden, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 104315, 6/5/08)

After defendant’s direct appeals were denied because the record was “insufficient to allow the Court to consider” the claims, defendants filed post-conviction petitions arguing that appellate counsel was ineffective for failing to file a complete record.

The PCP sought to have the trial court order the Appellate Court to allow the defendants to supplement the record and resubmit their briefs. In addition, defendants made oral motions for leave to file late notices of appeal.  The appellate counsel was found ineffective, but the trial ct had no authority to order the Appellate Court to do anything.

The Appellate Court then agreed the trial court lacked authority to grant leave to file late notices of appeal, but held that the cause should be remanded with instructions to allow petitioners to file successive post-conviction petitions restating their ineffective assistance claims and requesting some other relief than an order binding the APP ct

The Supreme Court then held that once the App Court concluded the trial court correctly denied the post-conviction petitions, it lacked jurisdiction to remand the cause with instructions on possible proceedings.

They did state that the petitioners have the right to file whatever pleadings they wish (for instance – further post conviction petitions, petitions for relief from judgment, and habeas corpus petitions) with or without APP CT “granting leave”.

The cause was ultimately remanded for the trial court to conduct a hearing on the petitioners’ ineffective assistance claims and then to come up with an appropriate remedy.

People v. Ross, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 103972, 6/5/08)

Whether defense counsel is ineffective for failing to file a notice of appeal depends on whether Strickland is satisfied.

Specifically, counsel acts unreasonably by ignoring specific instructions from the defendant to file a notice of appeal. Prejudice exists where the failure to file deprives the defendant of an appeal which he would otherwise have taken.

A criminal defendant whose attorney was ineffective for failing to file a notice of appeal is entitled to a direct appeal with the benefit of the effective assistance of counsel. Because a post-conviction proceeding is not the equivalent of a direct appeal – even if the defendant is allowed to raise issues that would have been proper in a direct appeal – the court concluded that 725 ILCS 5/5-122 authorizes a post-conviction court to grant the petitioner leave to file a late notice of appeal. In these limited circumstances, SCR 606 does not apply.


People v. Lopez, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 103768, 6/19/08)

When police deliberately elect not to give Miranda warnings upfront, until after they obtain a statement, in hopes that statements given after Miranda warnings are administered will be admissible, the second statement is involuntary.

“Curative measures” including a substantial break in time and circumstances between the unwarned and warned statements or an explanation that the unwarned statement is inadmissible can make the SECOND statement admissible.  A reasonable suspect would need to believe that he has an actual choice whether to continue speaking.

Where failure to Mirandize is a “mistake” instead of investigative technique, Oregon v. Elstad, 470 U.S. 298 (1985) holds that the second, post-Miranda statement is admissible (if otherwise voluntary).

Determining deliberate nature in question the consideration is whether “objective evidence and any available subjective evidence such as an officers testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning.” Factors to be considered include timing, setting and completeness of the pre-warning interrogation, continuity of police personnel, and the overlapping conten.

The court concluded that a reasonable 15-year-old would not believe he had a choice about continued cooperation, even though the handwritten statement taken after Miranda was administered at second questioning was by an assistant State’s Attorney rather than the detectives from earlier, and the defendant’s father was present. The first and second statements were taken a short time apart in the same room, one detective was present for both statements, and defendant was not advised that his earlier statement was inadmissible.

The court used all of the standards for assessing the “reasonable person” are you under arrest standard, modified with the juvenile rules.  This led to the court deciding an innocent 15-year-old wouldn’t think he was free to leave under these circumstances. Defendant was: questioned by police and then left alone for hours, told to knock on the door if he needed anything, believed he was in a locked room, none of the members of his family or he himself were told he was free to leave.

People v. McCarter, ___ Ill.App.3d ___, ___ N.E.2d ___ (1st Dist. 2008) (No. 1-06-0058, 6/6/08)

Under People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984) a court must examine the factual basis of a pro se claim of ineffective assistance of counsel at trial. If it lacks merit or concerns only trial strategy the court may deny the motion without appointing counsel. If the pro se claim points to possible neglect of the case, new counsel must be appointed.

This case defines that determining whether the trial court met its burden under Krankel, the question is whether the inquiry was adequate. In most cases the court and trial counsel talk on the record, but the court may also rely on its observation of the performance at trial and the adequacy of the pro se allegations.

The trial court’s refusal to appoint new counsel should be overturned on only when the decision is manifestly erroneous.

People v. Delvillar, ___ Ill.App.3d ___, ___ N.E.2d ___ (1st Dist. 2008) (No. 1-06-2449, 6/11/08)

First district declared that 725 ILCS 5/113-8 creates a mandatory duty to admonish a defendant making a guilty plea “that if he or she is not a citizen of the United States, the plea may result in deportation, exclusion from admission to the United States, or denial of naturalization” – not just when the court thinks they might not be citizens.

§113-8 requires the admonishment whether or not the defendant is known to be a non-citizen; it is the fact that a guilty plea is entered – rather than the defendant’s immigration status – which triggers the admonishment requirement.

Since it is required in all cases that go to plea, the defendant’s misrepresentation to the court that he was a U.S. citizen did not excuse the failure to give the admonishment.

People v. Gulley, ___ Ill.App.3d ___, ___ N.E.2d ___ (2d Dist. 2008) (No. 2-06-1077, 6/13/08)

Under People v. Whitfield, 217 Ill.2d 177, 840 N.E.2d 658 (2005) it is a due process violation when a defendant enters an agreed guilty plea and is not advised that a term of MSR will be imposed as an additional punishment, and further the appropriate relief was to reduce the prison term by the length of the MSR, so the two combined equal the sentence agreed to.

Example – agreed plea of three years IDOC on a class 3, not admonished to one year MSR on the back end – actual IDOC sentence becomes 2 years.

In this case the Defendant agreed to a 30 years but received 33 years when MSR term was added – IDOC sentence becomes 27 years.

It doesn’t waive the issue:  to fail to raise it in a post-plea motion, or to voluntarily withdraw an appeal where it was raised when defendant did it on bad advice from his attorney regarding the available relief, or that defendant had previously served MSR on another case.

People v. Alberts, ___ Ill.App.3d ___, ___ N.E.2d ___ (4th Dist. 2008) (No. 4-07-0582, 6/26/08)

People v. Hari, 218 Ill.2d 275, 843 N.E.2d 349 (2006) expanded the Illinois involuntary intoxication defense to include an unexpected adverse reaction to a drug taken on doctor’s orders, is applied to cases on collateral review.

People v. Garstecki, ___ Ill.App.3d ___, ___ N.E.2d ___ (3d Dist. 2008) (No. 3-07-0259, 5/16/08)

Supreme Court Rule 431 (court “shall” permit parties to supplement voir dire by direct questioning “when deemed proper”) affords the right to question prospective jurors, subject only to reasonable limitations of scope and time.

People v. Johnson, ___ Ill.App.3d ___, ___ N.E.2d ___ (3d Dist. 2008) (No. 3-06-0555, 6/10/08)

A defendant has a constitutional right to appear personally and by counsel at all proceedings involving “substantial” rights.

Once the jury deliberations begin, defendant has the right to be present during any communication between the jury and the court. If communication occurs in the defendant’s absence, the State has the burden to show beyond a reasonable doubt that the defendant was not prejudiced.

People v. Wheat, ___ Ill.App.3d ___, ___ N.E.2d ___ (2d Dist. 2008) (No. 2-06-0888, 6/2/08)

A defendant has an absolute right to request jury polling after a verdict and before the jury is discharged. If the jury is not polled despite a timely request the conviction will be reversed.  Both sides have the right to ask for polling.  The Court must provide the opportunity.

This case rejects the State’s argument that a two-second pause between the return of the verdict and discharge of the jury was reasonable opportunity for the defense to request polling using the following hilarious language:

“ A defendant exercising his right to poll the jury is not a quiz show contest who must anticipatorily press the buzzer before the host is finished asking the question or risk losing points. . . . A defendant is not required to impede on the trial’s decorum by interrupting the trial court’s reading of the verdict in order to preserve his request to poll.”

People v. Galmore, ___ Ill.App.3d ___, ___ N.E.2d ___ (4th Dist. 2008) (No. 4-07- 0073, 4/30/08)

It is plain error to impose a street value fine of $10,000 where: testimony indicated that 50 rocks of crack cocaine would have sold on the street for $20-$30 each, (totaling  between $1000 and $1500 for the math impared) and where the prosecutor says the fine should be $10 per one-tenth gram of cocaine, but offered no explanation for where they got that number. As an aside, the APP court noted that under the prosecutor’s method, the fine would amount to only $8,380, not $10,000.

People v. Ross, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 103972, 6/5/08)

          The remedy for counsel’s failure to file a notice of appeal pursuant to 725 ILCS 5/5-122 is for a post-conviction court to grant leave to file a late notice of appeal.

          Illinois armed robbery law does not create a presumption that any weapon is dangerous;  the trier of fact may infer dangerousness from evidence that a firearm is loaded and operable, was used as a bludgeon, or was capable of being used as a bludgeon.

State’s evidence showed that defendant had a small, portable weapon, and an officer testified that police recovered a pellet gun with a 3-inch barrel.  The State presented neither the weapon nor photographs, and no evidence that the gun was loaded or used as a bludgeon or regarding its weight or composition, the evidence failed to show that defendant used a dangerous weapon.

People v. Leggions, ___ Ill.App.3d ___, ___ N.E.2d ___ (4th Dist. 2008) (No. 4-07-0187, 6/13/08)

The court concluded that exiting one vehicle and entering another, even in an area known for drug crimes, does not create a reasonable suspicion of criminal activity sufficient to justify an investigatory stop: 

People v. Brown, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 104375, 6/19/08)

The State proved by preponderance that defendant was eligible for habitual criminal status (third class x, sex asslt, murder, whatever – leading to natural life) by submitting certified records showing that defendant had been convicted of the required prior offenses and they introduced a PSI showing dates on which defendant was arrested. State said that defendant had been on parole when he committed the second and third offenses.

Such evidence creates a rebuttable presumption the defendant was eligible for habitual criminal sentencing. Defendant did not contest the presumption, and in fact admitted that he was eligible.

Defendant waives the right to contest habitual criminal eligibility on appeal if he fails to contradict the rebuttable presumption at trial, unless the State’s evidence clearly shouldn’t have qualified him.

People v. Rodriguez, ___ Ill.2d ___, ___ N.E.2d ___ (2008) (No. 104679, 6/5/08)

730 ILCS 5/5-8-1(a)(1)(d)(i) provides that a person who commits first degree murder “while armed with a firearm” shall receive a 15-year enhancement

This case says: the 15-years applies to a defendant who is not personally armed but who is convicted of first-degree murder based on accountability.

But: the enhanced sentences of 20 and 25 years for personally discharging a firearm or personally discharging a firearm and causing great bodily harm or death require the personal discharge of the weapon.


People v. Sitkowski, ___ Ill.App.3d ___, ___ N.E.2d ___ (2d Dist. 2008) (No. 2-07-0305, 6/9/08)

Under 730 ILCS 5/3-14-2(a), the Department of Corrections retains custody of persons placed on mandatory supervised release so a trial demand filed by a person who is committed to DOC remains effective after he is placed on mandatory supervised release time doesn’t stop like if he were released from county jail after posting bond).

People v. Exson, ___ Ill.App.3d ___, ___ N.E.2d ___ (1st Dist. 2008) (No. 1-06-0924, 6/23/08)

A defendant who is in custody is entitled to be tried within 120 days of the date of custody which can be extended once up to 60 days if the State has been unable to obtain evidence despite due diligence and there are reasonable grounds to believe that the evidence will be available at a later date. The decision to extend the speedy trial period beyond 120 days is at the discretion of the trial court, whose decision will not be disturbed absent a clear abuse of discretion.

In this case the court abused its discretion when granting a 30-day-extension to the testimony of a chemist who performed analysis of a controlled substance. The State should exercise diligence to obtain the evidence, oh, say, like efforting to locate the witness in sufficient time.

Not so here, where the prosecution conceded no attempt to contact the chemist was made until the 119th day because it assumed defendant would waive jury and that the Cook County Public Defender would stipulate to the results. When they learned otherwise they attempted to contact the chemist they found she quit two months earlier.

The court rejected the argument that it was reasonable for the State to rely on the Public Defender’s practice of stipulating to test results.  Ha Ha

Defendant did not waive claim although by failing to raise it in the post-trial motion, because he made objections and filed a motion to dismiss based on the State’s lack of diligence.

People v. Williams, ___ Ill.App.3d ___, ___ N.E.2d ___ (1st Dist. 2008) (No. 1-06-0141, 6/20/08)

-All witnesses are presumed competent to testify unless they are: incapable of expressing themselves or understanding the duty of a witness to tell the truth. The burden of proving incompetence is on challenging party decision by the trial judge is not to be disturbed absent a clear abuse of discretion.

A child (in this case a 9 year old) is not required to give perfect answers to questions to be deemed competent.  After “prodding” by the prosecutor and the trial judge the witness displayed an understanding of the difference between telling the truth and lying.

-When considering a motion to dismiss indictment based upon lack of evidence guilt presented, the court must look at transcripts to determine if the evidence connected the accused to the offense. An indictment will be ok if they reveal “some evidence relative to the charge.  The State need not provide the grand jury with evidence of each element of the offense; the indictment is proper if there is evidence which “tends to connect” defendant to the crime.”



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