Posted tagged ‘Criminal Law’

January Update

January 28, 2009

People v. Alfaro, No. 2-06-1146 (October 2, 2008)

Defendant enter plea to second degree murder, reduced from first degree, in exchange for testimony against other defendants.

Because defendant breached plea agreement, which allowed defendant to plead guilty to second degree murder and obstructing justice, in exchange with defendant’s cooperation with prosecutors in their prosecution of other defendants, by giving inconsistent and untrue statement, he was not prejudiced by ineffective and unprofessional representation by his counsel. However, trial court erred when it refused to suppress video taped statement given to police, after three hour interrogation; because defendant was in custody, and State deliberately engaged in “ask and then warn” tactic. After first hour, defendant was confronted by accusatory interrogation; defendant was interrogated after getting off from midnight shift; and a reasonable person in defendant’s position would not have believed himself free to leave.

People v. Russell, No. 3-06-0264 (October 2, 2008)

Admission of affidavits and records certifying results and accuracy of breathalyzer machine do not violate right of confrontation as described in Crawford.

People v. Poe, No. 3-06-0461 (October 7, 2008)
Although the Supreme Court has held that theft can qualify as lesser included offense of burglary for purposes of jury instruction, defendant is not entitled to vacate conviction for theft under one act one crime analysis where he was convicted of breaking into a lumber yard with intent to commit a theft, and also of committing theft upon entry.

People v. Petrenko, No. 3-06-0508 (October 2, 2008)

Trial court did not err when it summarily dismissed post conviction petition filed by defendant alleging ineffective assistance of trial and appellate counsel for failure to file motion challenging search warrant of defendant’s home after defendant’s fingerprints were found in murder and robbery victim’s home. Further, defendant’s assertion on appeal of first stage dismissal of his post conviction petition that his consecutive sentences of natural life and 10 years, respectively for murder and robbery, is procedurally defaulted.

People v. Paige, No. 3-07-0869 (October 6, 2008)
Trial court erred when it granted motion to rescind a statutory summary suspension based on evidence that defendant was stopped at a roadblock, where officer smelled cannabis odor coming from defendant’s vehicle and defendant admitted that he had been smoking marijuana. In order to rescind summary suspension, defendant was required to present some evidence that roadblock was unreasonable; which he did not.

People v. Lucas, No. 104558 (October 17, 2008)
Trial and Appellate courts erred when they allowed defendant to be convicted of armed violence based on predicate offense of driving while license revoked, subsequent offense. Although driving while license revoked can be elevated to felony at sentencing, Section 111-3(c) of Procedure Code prohibits prior record from being presented to jury. Therefore, driving while license revoked cannot be predicate offense for armed violence.

People v. Bannister, No. 100983 (October 17, 2008)

In defendant’s trial for single murder, resulting in jury sentencing verdict of death, trial court adequately advised defendant of his right to choose bench trial for guilt phase of trial and jury trial for sentencing phase. In addition, trial court did not err when it denied counsel’s motion for bench trial at sentencing phase; because counsel may not overrule defendant’s selection of jury. In addition, although defense nonpattern jury instruction on verdict form under amended death penalty statute is preferable, trial court did not abuse its discretion when it gave instruction tendered by State. Further, prosecutor’s closing argument in sentencing phase highlighting defendant’s lack of remorse did not undermine defendant’s right to remain silent.

Clemency Petitions in Illinois

April 27, 2008

For most people with a felony in their background, Clemency is the best option to clear that mark.  With few exceptions (certain drug cases and prostitution) this is the only option.  That is also true for some misdemeanor offenses which are excluded from the expungement process.

The process of seeking executive clemency involves a written petition and a hearing before the Illinois Prisoner Review Board.   The Board then makes a reccomendation to the Governor’s office who makes the ultimate decision.

Clemency is essentially seeking forgiveness for your action or putting forth additional or new defenses to your previous case.  The petition and the hearing are governed by administrative rules that dictate with great specificity what the contents are to be, what documentation must be attached and what must be done at the hearing.

It is both a judicial and political proceeding.  It manages to mix many rules for the petitioner with few if any on the Governor.  In Illinois there is a tremendous backlog.  In fact, a lawsuit has been filed against Illinois Governor Rod Blagojevich in an attmep to get some decision made on the cases that are piling up on his desk.

A lawyer can help a lot in the process.  The writing, production and tone of the hearing are difficult to deal with if you haven’t seen them.

Brucar & Yetter has done many of these petitions and are a good source of information.

 

Expunging Uncharged Juvenile Cases

April 23, 2008

If you were ever picked up as a minor in Illinois (under the age of seventeen) but were not charged formally you may still have a police record.

With minors the police have lots of options.  Peer jury, station adjustment, drive home to parents or work through the school police officer.  All of these are possibilities, but the contact still goes into the LEADS system (what is commonly referred to as your “record”)

These contacts usually do not interfere in a persons life, but those wishing to get governemtn clearances or join law enforcement should seriously consider expungement.

This is referred to as a catagory one expungement petition and works if any of the following are true:

 

1. You were arrested detained) but not charged?

2. You were Charged but found not guilty?

3. You were placed on court supervision and successfully terminated it?

4. You were found guilty for an offense that if you had been an adult would have been a Class B or C misdemeanor or less (disorderly conduct, possession of minimal amounts of cannabis, etc.)

If you fall into this group a category one petition can be done quickly by professionals.  For more details see our website or the government site.

We’ll be happy to help you get this straightened out so that you can get on with your life.  We excel at Illinois Expungement.  

Illinois Legislature Defines “Serious Traffic Offenses”

April 13, 2008

DuPage County to Profit

This years traffic code contains a provision which defines cetain offenses as serious.  The question remains open as to what it means.  The statute itself provides a list of traffic offenses:

§ 1-187.001. Serious traffic violation.

(a) A conviction when operating a motor vehicle for:

(1) a violation of subsection (a) of Section 11-402, relating to a motor vehicle accident involving damage to a vehicle;

(2) a violation of Section 11-403, relating to failure to stop and exchange information after a motor vehicle collision, property damage only;

(3) a violation of subsection (a) of Section 11-502, relating to illegal transportation, possession, or carrying of alcoholic liquor within the passenger area of any vehicle;

(4) a violation of Section 6-101 relating to operating a motor vehicle without a valid license or permit;

(5) a violation of Section 11-403, relating to failure to stop and exchange information or give aid after a motor vehicle collision involving personal injury or death;

(6) a violation relating to excessive speeding, involving a single speeding charge of 30 miles per hour or more above the legal speed limit;

(7) a violation relating to reckless driving;

(8) a violation of subsection (d) of Section 11-707, relating to passing in a no-passing zone;

(9) a violation of subsection (b) of Section 11-1402, relating to limitations on backing upon a controlled access highway;

(10) a violation of subsection (b) of Section 11-707, relating to driving on the left side of a roadway in a no-passing zone;

(11) a violation of subsection (e) of Section 11-1002, relating to failure to yield the right-of-way to a pedestrian at an intersection;

(12) a violation of Section 11-1008, relating to failure to yield to a pedestrian on a sidewalk; or

(13) a violation of Section 11-1201, relating to failure to stop for an approaching railroad train or signals

The statute means little in and of itself, as no enhanced penalties are included in the new law.  In fact, part c of the statute says specifically the opposite:

c) A violation of any of these defined serious traffic offenses shall not preclude the defendant from being eligible to receive an order of court supervision under Section 5-6-1 of the Unified Code of Corrections.

So why the law.

Well, for years the vehicle code has used the term serious traffic offense without defining it.  It occurs mostly in situations of disqualifications bases on a certain number of these tickets.  This occurs for holders of CDL’s, and new teenage drivers.  The practical upshot is against younger drivers, who are now required to do traffic school in order to get court supervision, which is a disposition you must go to court to get.

The problem is that the fines and fees required under local rule in DuPage County set the minimum fines and fees on any case at about $280 when you go to court, but they can be as little as $75 if you are able to use the mail in program.

Indeed, DuPage County State’s Attorney Joe Birkett and the Clerk of the Circuit Court Chris Kachiroubas have been expanding the number of cases that are required to appear in court, thus increasing the income to the county generated by their offices.  They do so under the guise of public safety.

The truth is that no other county does this.  In Cook County there is no penalty for going to court the way there is in DuPage County, ditto that for Will, Lake and Kane.