Illinois
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3 Appellate Court Cases Posted 1-31-12
1. Post
Conviction Petition:Affirmed: Discussion of stages of Postconviction
Petitions. To establish an ineffective-assistance-of-counsel
claim, a defendant must show (1) his counsel's performance was
inadequate "in that it fell below an objective standard of
reasonableness," and (2) a reasonable probability exists that the
outcome of the proceeding would have been different absent counsel's
deficient performance. A defendant's Batson claim cannot be
pursued because the defendant's trial counsel waived the presence of a
court reporter at voir dire proceedings. Trial counsel's
failure to assert a Batson objection when the State exercises a
peremptory challenge does not render counsel's performance deficient
per se because of the
requirement to establish a record during voir dire proceedings.
Steigman, J.
No. 2012
IL App (4th) 100513 People
v. Goodwin Filed
1-31-12 (LJD)
In February 2006, a jury convicted defendant, Stephen G. Goodwin, of
(1) escape, possession of a converted vehicle, (3) aggravated
kidnaping, (4) aggravated possession of a converted vehicle, and (5)
aggravated fleeing or attempting to elude a police officer.
Defendant appeals, arguing that the trial court erred by
dismissing his amended petition for postconviction relief because he
made a substantial showing of a constitutional violation. We disagree
and affirm.
2.
Appellate Practice/Post Conviction Petition: Affirmed: Post-Conviction
Hearing Act "provides a remedy for defendants who have suffered a
substantial violation of their constitutional rights at trial."
An action for postconviction relief is a collateral attack on the
proceedings, not an appeal on the merits. The purpose of a
post-conviction proceeding is to permit inquiry into constitutional
issues involved in the original conviction and sentence that were not,
and could not have been, adjudicated previously on direct appeal.
Issues that were raised and decided on direct appeal are barred by the
doctrine of res judicata. An otherwise meritorious claim has no
basis in law if res judicata or forfeiture bar the claim. Cook, J.
No. 2012
IL App (4th) 100205 People
v. Terry Filed
1-31-12 (LJD)
This appeal
comes to us on the motion of the office of the State Appellate Defender
(OSAD) to withdraw as counsel on appeal because no meritorious issues
can be raised in this case. For the following reasons, we agree and
affirm.
3. Traffic Court:
Affirmed: The scope and extent of cross-examination and
recross-examination are within the discretion of the court.
Cross-examination should be kept within fair and reasonable limits, and
it is only in a case of clear abuse of such discretion, resulting in
manifest prejudice to the defendant, that a reviewing court will
interfere. Nystagmus is 'an involuntary, rapid, rhythmic movement
of the eyeball, which may be horizontal, vertical, rotatory, or mixed,
i.e., of two varieties. A properly trained officer who followed
proper procedures may give expert testimony regarding the results
of the HGN test and "may use the HGN test results as a part of the
basis for his opinion that the defendant was under the influence and
impaired. The NHTSA manual devotes six pages to the subject
of nystagmus and "outlines a 10-step procedure for performing a field
test for HGN. the manual can be found online at
http://www.isp.state.il.us/docs/2006dwisfst.pdf). McCullough, J.,
special concurrence by Appleton, J.
No. 2012
IL App (4th) 110536 People
v. Graves Filed
1-31-12 (LJD)
On April 6,
2011, a jury found defendant, Bruce Graves, guilty of aggravated
driving under the influence of alcohol (DUI) (625 ILCS
5/11-501(d)(1)(A) (West 2008)). The trial court sentenced him to five
years in prison.
7 Appellate Court Cases Posted 1-30-12
1. Torts:
Affirmed: Section 414 of the Restatement
(Second) of Torts which states an exception to the general rule that
a principal is not liable for the acts and omissions of an independent
contractor is discussed and analyzed. Retention of control of the
work
and right to stop the work reviewed. Lampkin, J.
No. 2011 IL App (1st) 101628 Oshana
v.
FCL
Builders Filed 1-27-12 (LJD)
Plaintiff Anwar Oshana and defendant FCL Builders, Inc. (FCL), appeal
the circuit court's order granting summary judgment in favor of
defendant Suburban Ironworks, nc. (Suburban). Appellants argue
that Suburban, which fabricated and delivered structural steel for a
construction project, retained sufficient control over the steel
erection work of an independent contractor and, thus, fell within
the ambit of the retained control exception of section 414 of the
Restatement (Second) of Torts (Restatement (Second) of Torts §
414 (1965)). Specifically, appellants argue that, even though Suburban
subcontracted out the steel erection work to the independent 1-10-1628
contractor, Suburban retained contractual control over the safety of
the steel erection work and supervisory and operational control over
the steel erection work.
2.
Appellate Jurisdiction/Child Custody/Removal From
Illinois: Affirmed: Extensive Discussion of the Appellate Court's
jurisdiction following n appeal of post decree petition where there is
a
petition for attorneys fees pending in trial court. 5 guiding
factors for petition to remove discussed. Garcia, J.
No. 2011 IL App (1st) 101916 In
re
Marriage
of Demaret Filed
1-27-12 (LJD)
After a hearing, the circuit court denied the petitioner's request to
remove
the minor children from Illinois to New Jersey. In its written
decision, the trial court addressed each of the factors required
by
our case law to assess the best interests of the children in a removal
matter, finding that none supported the move. The trial court's
decision denying the removal petition was not against the
manifest
weight of the evidence. Accordingly, the denial of the petition was not
against the best interests of the children. We affirm.
3. School
Immunity: Affirmed: A section 2-619 motion to
dismiss admits the legal sufficiency of the plaintiff's complaint but
asserts affirmative defenses or other matter that avoids or defeats the
plaintiff's claim. A section 2-615 motion to dismiss challenges
the legal sufficiency of a complaint based on defects apparent on its
face. A cause of action should not be dismissed pursuant to
section 2-615 unless it is clearly apparent that no set of facts can be
proved that would entitle the plaintiff to recovery. Section
34-84a of the Illinois School Code extends in loco parentis status to
teachers and other certified educational employees for matters relating
to the conduct of the schools and school children. Since a parent
is not liable for
injuries to his child absent willful and wanton misconduct, it
therefore
follows that the same standard applies as between educator and
student. Fitzgerald Smith, J
No. 2011 IL App (1st) 103758 Doe
v.
Lawrence
Hall Youth Services Filed
1-26-12 (LJD)
Plaintiff
John Doe, by his father and next friend Richard Doe,
appeals from orders of the trial court dismissing with prejudice
various counts of his complaint against defendant Lawrence Hall Youth
Services pursuant to sections 2-619 and 2-615 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-619, 2-615 (West 2008). We affirm.
4. Estates
and Trusts: Affirmed: Under the Doctrine of
Election, which the parties to this appeal recognize, any person who
voluntarily accepts a beneficial interest under a will is held thereby
to ratify and confirm the entirety of the will that conferred the
benefit. The result is that once a beneficiary has accepted a
benefit under the will, he will be estopped from asserting any
claim inconsistent with or contrary to the validity of that will.
Fitzgerald Smith, J.
No. 2011 IL App (1st) 111013
In
re
Estate
of Boyar Filed
1-26-12 (LJD)
The
petitioner-appellant, Robert A. Boyar (hereinafter Robert), appeals
from an order of the circuit court dismissing his petition to contest
the validity of an amendment to the trust of his deceased father,
Robert E. Boyar. The circuit court predicated its decision to dismiss
on the doctrine of election, which prohibits a party from both
accepting a benefit conferred by a will while simultaneously
maintaining an action to contest the validity of that document.
The trial court found that since Robert had accepted a benefit
conferred by the trust, i.e., personal property belonging to the trust,
he had ratified the entire trust agreement and was barred from
maintaining his action to contest the last amendment to that trust. For
the reasons that follow, we affirm the judgment of the circuit court.
5.
Ineffective Counsel: Reversed and Remanded: A
defendant may raise an ineffective-assistance claim on direct appeal
when the basis of the claim can be ascertained from the
record. When a defendant argues that counsel’s performance
was ineffective, he or she must show both that: (1) the attorney’s
performance fell below an objective standard of reasonableness
(deficient performance prong); and (2) there is a reasonable
probability that, but for the attorney’s deficient performance, the
outcome of the trial would have been different (prejudice prong). Trial
strategy cannot be a basis for finding counsel ineffective. In
our view, there is no question that, in any routine presentation of DNA
evidence, a reasonably effective defense attorney confronted with the
circumstances of defendant’s trial would, in some capacity, argue that
a DNA comparison based on fewer than 13 loci might be unreliable or
that the partial profile recovered might not be uncommon.
Jorgenson, J, dissent by Birkett, J.
No. 2011 IL App (2nd) 091328
People
v.
Watson Filed
1-25-12 (LJD)
Following a jury trial, defendant, Troy S. Watson, was convicted of
residential burglary. On December 3, 2009, the trial court denied
defendant’s pro se posttrial motion alleging, in part, ineffective
assistance of counsel based on counsel’s failure to challenge the
allegedly marginal statistical significance of admitted
deoxyribonucleic acid (DNA) evidence. On December 10, 2009, the
court sentenced defendant to 30 years’ imprisonment. Defendant did not
file a postsentencing motion. On appeal, defendant argues that
both trial and posttrial counsel provided ineffective assistance.
For the following reasons, we conclude that defendant was denied the
effective assistance of trial
counsel. We reverse his conviction and remand for a new trial with new
counsel.
6.
Zoning: Affirmed: A county is a creature of the state and can
exercise only powers that are delegated by the legislature or that
arise from a necessary implication of an expressly granted
power. Powers statutorily granted to a local governmental entity
should be strictly construed against the governmental entity and should
not be enlarged by liberal construction of the statute granting the
authority. The purpose of section 5-1062 is to enable designated
counties to mitigate the effects of urbanization on storm water
drainage by giving those counties the ability to establish countywide
structures to regulate storm water and floodplains. Hutchinson, J.
No. 2011 IL App (2nd) 100349
The
County
of
Lake v. Campus Investments Filed
1-27-12 (LJD)
In May 2008,
defendants, Campus Investments, Inc., and Zero Energy
Estates, LLC, began developing a residential community on an
approximately 30-acre parcel of undeveloped land, which included
15 acres of wetland, in the Village of Grayslake (the Village).
Plaintiffs, the County of Lake (the County) and the Lake County
Stormwater Management Commission (the Commission), subsequently filed
a verified complaint seeking injunctive relief, claiming that
defendants violated the Lake County Watershed Development Ordinance
(amended Oct. 10, 2006) (the ordinance) and 2012 IL App (2d) 100349 the
Lake County Highway Access Regulation Ordinance (amended Nov. 12, 2002)
(the Highway Access ordinance) by not obtaining the permits required
for development of wetlands and use of an access road.
Defendants filed a counterclaim and, after a bench trial, the trial
court entered a judgment granting a permanent injunction preventing
defendants from further developing the property until they
obtained the necessary permits and granting other relief.
Defendants now appeal, contending that the trial court erred by holding
that section 5-1062 of the Counties Code (55 ILCS 5/5-1062 (West 2008))
authorized plaintiffs to regulate wetlands and therefore the
injunction was improper. We affirm.
7. Post
Conviction Petition: Affirmed as modified: A voidness claim can be
raised for the first time on appeal, including a collateral
appeal. A plea agreement can be unenforceable, but it does not
follow from that unenforceability that the court lacked authority to
enter the conviction; that is, it does not follow that the conviction
was void. while a sentence, or portion thereof, not authorized by
a statute is void [citation], it is void only to the extent that it
exceeds what the law permits. The legally authorized portion of the
sentence remains valid. Birkett, J.
No. 2011 IL App (2nd) 100484
People
v.
Hudson
Filed
1-27-12 (LJD)
Defendant,
Ralphfield Hudson, appeals from the dismissal of a document that the
court characterized as a petition under the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2006)). He asserts that,
under the rule in People v. Gregory, 379 Ill. App. 3d 414 (2008), his
1996 conviction of aggravated driving under the influence of cocaine
(625 ILCS 5/11-501(a)(5), (d)(1)(C) (West 1994)) was void. He
argues that, per Gregory, the conviction was void because it was the
result of a plea agreement that required a void sentence, one longer
than the law allowed.
2 Appellate Court Cases Posted 1-25-12
1. FELA:
Affirmed: Whether two verdicts are legally inconsistent is
a question of law. Consequently, a trial court’s order granting
or denying a new trial based on a claim of legally inconsistent
verdicts is subject to de novo review. However, whether a new
trial is justified on the grounds that the verdict was against the
manifest weight of the evidence is reviewed for an abuse of
discretion. Where, as here, the verdict is alleged to be
internally inconsistent, we will exercise all reasonable presumptions
in favor of the verdict, which will not be found legally inconsistent
unless it is absolutely irreconcilable. A verdict is not considered
irreconcilably inconsistent if it is supported by any reasonable
hypothesis. Connors, J.
No. 2011 IL App (3d)
102359 Rodriguez
v.
Northeast
Illinois Regional Commuter Railroad Corporation
Filed 1-24-12 (LJD)
Plaintiff Lenora Rodriguez sued defendant Metra, her employer, under
the Federal Employers’ Liability Act (45 U.S.C. § 51 (2006)). A jury
awarded her over $100,000 in damages for lost wages and pain and
suffering, but awarded nothing for disability. On appeal, she contends
that the jury’s verdict is legally inconsistent and against the
manifest weight of the evidence and seeks a new trial on damages
limited to the issue of disability. Rodriguez also contends that the
trial court erred in limiting the scope of the redirect
examination of her medical expert notwithstanding the fact that the
topic was addressed in cross-examination. For the following
reasons, we affirm the judgment of the circuit court.
2.
Post
Conviction
Petition: Affirmed: The question for the trial court at
the second stage is “whether the petition and any accompanying
documentation make a substantial showing of a constitutional
violation.” The appellate court reviews the dismissal of a
postconviction petition at the second stage de novo. Two prongs of the
test for ineffective counsel reviewed and discussed. Connors, J.
No.
2011 IL App (3d) 093404 People
v.
McGhee
Filed 1-24-12 (LJD)
Following
a
direct
appeal of his conviction for murder, attempted murder, and
aggravated discharge of a firearm, defendant Volney McGhee filed a
postconviction petition, alleging denial of his constitutional
right to effective assistance of trial and appellate counsel. The
circuit court dismissed the petition at the second stage. We affirm.
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