New Cases 02-08-05

In Du Page County in 2007 and 2008, three separate forfeiture proceedings were instituted concerning three different motor vehicles. All had multiple owners, and, in each case, one of the owners was charged with aggravated DUI. In all three cases, the same counsel represented the claimants who sought the return of these vehicles. He persuaded the circuit court of Du Page County to declare the vehicle-forfeiture provisions of the Criminal Code of 1961 facially unconstitutional as a violation of procedural due process for lack of a statutory provision requiring a prompt probable cause hearing after seizure of a vehicle but before trial on merits of the forfeiture action. (A new statute, effective January 1, 2012, provides for such hearings.) The trial judge was concerned about the rights of noncriminally charged owners in multiple-owner situations and viewed it as irrelevant that the United States Supreme Court had held that “a long and unbroken line of cases holds that an owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was put to such use.” The forfeiture complaints were dismissed with prejudice, and the State brought a direct appeal to the Illinois Supreme Court. Subsequent to the circuit court’s disputed action, the Appellate Court, Second District, decided several cases reaching an opposite conclusion, relying on precedent in doing so.

2. Criminal Law/DUI/Discovery: Affirmed: In this decision, the supreme court affirmed the appellate court, agreeing that the circuit court’s sanctioning order was not an abuse of discretion. The supreme court did not agree with the State’s argument that a 1974 decision (People v. Schmidt, 56 Ill. 2d 572) should limit the discovery sanctions imposed in misdemeanor cases to the narrow list referred to in that case. Recording devices carried by police cars are now widespread, and have gone beyond the usages of 1974. The court held here that video recordings from squad-car mounted cameras are discoverable in misdemeanor DUI cases. The court also noted that the sanctions did not preclude the officer from testifying as to what he observed that was not recorded on the tape, although, in the civil proceeding, the State had not called him to do so. Thus, the State had declined opportunities to present evidence apart from what was barred by the sanction. Freeman, J. delivered the judgment of the court, with opinion.

On May 3, 2008, this defendant was stopped by a Northlake policeman for drunken driving and refused to submit to a Breathalyzer test. The officer at the scene notified her that, pursuant to the Illinois Vehicle Code, her driver’s license would be summarily suspended. She was arrested, charged with misdemeanor DUI, and, later, with speeding and driving an uninsured vehicle. In the Cook County civil proceeding concerning her license, she sought production of the video recording which had been made by a camera located in the officer’s squad car. The State agreed to this, but, by the time of the first trial date, the Northlake police department had destroyed the tape pursuant to its own rules for automatic expungement after 30 days. The circuit court judge found no bad faith on the part of the State but did find a discovery violation and ruled that, as a sanction, the officer could not testify as to what was on the tape (activities during the actual stop). At the presentation of evidence in the civil proceeding on the petition to rescind, the State presented no witnesses and did call the officer to testify as to events not covered by the tape which he did observe. The motion to rescind was granted. In the criminal case, the same type of discovery sanction was imposed, and the State appealed, claiming its prosecution of the matter was substantially impaired. The appellate court upheld the sanctions. The appellate court’s judgment was affirmed.

3. Criminal Law/Post-trial Motions: Affirmed: Krankel principles provide a common law remedy that has been developed by Illinois jurisprudence for circumstances where pro se claims show possible neglect by counsel. The remedy may include a new trial, but is not limited to this. The State contended that the issue here is governed by the statute providing for the timing of when a motion for a new trial is to be filed, but the supreme court held here that this statute should not apply. Here, the pro se motions preceded the notices of appeal which were filed. A preliminary inquiry should be conducted on remand into the facts underlying the defendant’s allegations. Chief Justice Kilbride delivered the judgment of the court, with opinion.

On May 20, 2007, a fatal accident occurred in North Chicago. At an intersection, a speeding car killed the driver of a vehicle and injured her three passengers. On February 27, 2008, a Lake County jury found this defendant guilty of reckless homicide. He was sentenced on May 16, 2008, to nine years for this offense, and this conviction survived his appeal to the appellate court, which vacated or reduced other lesser charges of which he also had been found guilty. Those matters are not at issue here.
This appeal requires a determination of whether a trial court may refuse to conduct any inquiry into the factual basis of pro se posttrial motions alleging ineffective assistance of counsel based on a finding that those motions are untimely. In this case, a motion to reconsider sentence had been filed on June 10, 2008, and, while it was pending, on June 24, 2008, Patrick filed a pro se motion for appointment of counsel outside the office of the public defender and also a pro se amended motion for a new trial. This was 118 days after the guilty verdict. Various claims of ineffective assistance by the appointed trial attorney were made. When the circuit court subsequently took up the issue of sentence reconsideration, it said that the pro se motions were untimely because not filed within 30 days of the verdict as required by the Code of Criminal Procedure on new trial motions. It made no inquiry into the allegations of ineffective assistance. The defendant appealed. On November 23, 2010, the appellate court ruled that the circuit court should not have dismissed Patrick’s pro se requests as untimely, but was required to inquire into his pro se allegations of ineffective assistance by holding a hearing pursuant to the principles announced in People v. Krankel, 102 Ill. 2d 181 (1984). A remand was ordered for this purpose, and the State appealed.

Krankel principles provide a common law remedy that has been developed by Illinois jurisprudence for circumstances where pro se claims show possible neglect by counsel. The remedy may include a new trial, but is not limited to this. The State contended that the issue here is governed by the statute providing for the timing of when a motion for a new trial is to be filed, but the supreme court held here that this statute should not apply. Here, the pro se motions preceded the notices of appeal which were filed. A preliminary inquiry should be conducted on remand into the facts underlying the defendant’s allegations. The appellate court’s judgment was affirmed.

11 Appellate Court Cases Posted 12-30-11

1. Criminal Law: Affirmed: Prosecutors' closing arguments were not improper, with one exception, but error deemed harmless in light of failure to object by defense counsel and determination that evidence was not "closely balanced"; improper argument regarding defendant contacting attorney on day after crime cured by trial court "prompt, repetitive admonitions to jury; admission of gun not reversible error; and trial court refusal to remove juror who expressed concerns after seeing defendant in parking lot not erroneous. Karnezis, J.

2. Professional Regulation: Affirmed in part and reversed in part: Department of Professional Regulation complaint against plaintiff doctor eventually dismissed as Department rule not authorized by enabling statute; subsequent claim by plaintiff for "litigation expenses" under Section 10-55 0f Administrative Act, including attorney fees, not barred by res judicata, and trial court denial of plaintiff claim for such error. Quinn, J.

3. Mortgage Foreclosure: Affirmed: Trial court properly granted successor bank's claim for mortgage foreclosure, despite mortgagors' claim that bank had no standing to maintain action, as Illinois Banking Act and documents submitted by bank establish that original bank's rights and obligations are assigned upon subsequent bank mergers. Cunningham, J.

4. Negligence law: Affirmed: Trial court grant of summary judgment to defendants in "slip and fall" case alleging injuries suffered as a result of defendants' removal of snow at multi-unit building proper under Snow and Ice Removal Act, and local ordinance did not supplant Act or create a cause of action. Cunningham, J.

5. Criminal Law: Affirmed in part and reversed in part: Defendant's refusal to identify himself or provide identification to police officer did not constitute offense of resisting or obstructing a peace officer. Hutchinson, J.

6. Real Estate/Probate Law: Reversed and remanded: Plaintiff could bring suit to quiet title, and was not barred by res judicata stemming from probate case, where defendant beneficiary did not seek to quiet title in probate proceedings, but only established right to possess real estate in probate action. Schostok, J.

7. Illinois Citizen Participation Act/Real Estate Law: Reversed and remanded: Plaintiff purchasers of residential real estate brought suit against next door neighbor for violating agreement not to complain to Village as to propriety of setback calculation, which affected plaintiffs' ability to construct planned residence, could maintain suit, and action was not prohibited by Citizen Participation Act; trial court dismissal of suit was error. McLaren, J.

8. Criminal Law: Affirmed: Finding of guilty of underage consumption of alcohol upheld where defendant failed to prove exemption to statute for a person under the "direct supervision" of a parent or guardian permitting consumption, simply because parent permitted defendant to consume alcoholic beverages, in absence of evidence that parent actually paid attention to defendant's conduct during and after consumption. Schostok, J.

9. Criminal Law: Appeal dismissed: Trial court ruling in DUI bench trial that breathalyzer test result was not admissible for failure to comply with State Police administrative regulation was not an order "suppressing evidence" that would permit State to appeal under Supreme Court Rule 604, and State appeal dismissed. Hutchinson, J.

10. Subrogation: Affirmed: In action for personal injuries sustained in automobile accident, plaintiff's insurance company letter to defendant's insurance company was not an "unequivocal instruction" to plaintiff, plaintiff's attorneys, or defendant's insurance company that plaintiff's insurance company intended to collect its subrogation claim for medical payments on its own, and trial court therefore properly reduced plaintiff's insurer's claim to one-third pursuant to common fund doctrine. Jorgensen, J.

11. Real Estate Tax Law: Affirmed: Property Code did not limit county collector to only one remedy for plaintiff's failure to pay special service area tax in connection with failed real estate venture, and plaintiff's complaint for declaratory judgment, injunctive relief, and mandamus properly dismissed by trial court. Jorgensen, J.

11 Appellate Court Cases Posted 12-28-11

1. Attorneys' Fees/Settlement Agreements: Affirmed: Where defendants' settlement agreement with attorney and attorney's client provided that payments would be made to client and attorney, attorney had standing to maintain action for defendants' failure to make all agreed upon payments; photocopy of settlement agreement properly introduced into evidence; and evidence established that individual defendants were properly found liable under terms of agreement. Pucinski, J.

2. Attorneys' Fees/Rule 137 Sanctions: Vacated and remanded: Award of attorneys' fees in post-decree divorce proceedings entered against attorneys as sanction after they withdrew their appearance as wife's attorneys vacated in light of trial court failure to give attorneys notice of sought-for sanctions and an opportunity to be heard. McBride, J.

3. Criminal Law: Affirmed as modified: In spite of ambiguities regarding precise manner in which chemist tested suspect narcotics, evidence was sufficient to prove element of weight beyond a reasonable doubt; trial court complied properly with Supreme Court Rule 431(b) regarding voir dire; and $200 DNA fee vacated in light of submission of DNA sample by defendant in earlier case. Garcia, J.

4. Juvenile Delinquency Law: Affirmed: Respondent properly found guilty beyond a reasonable doubt of numerous offenses relating to shots fired at police officers, despite testimony that respondent was observed continually from time of shots fired to arrest but no firearm was recovered; 30/60 day time period for hearing as to "extended jurisdiction juvenile prosecution" under Section 5-810 of Juvenile Court Act authorizing stayed adult sentence directory only and not mandatory, and imposition of stayed adult sentence proper; and respondent did not have standing to claim EJJ sentence unconstitutional where prosecution had not yet sought for juvenile sentence to be vacated for respondent's failure to comply with its terms and stayed adult sentence imposed in its place. McBride, J.

5. Negligence Law: Reversed and remanded: In case where decedent was struck by train, and then impelled into plaintiff by force of initial impact, trial court erred in ruling, in connection with grant of summary judgment, that decedent (person struck by train) had no duty toward nearby person (plaintiff) whose body he struck after his being struck by passing train, and summary judgment in favor of decedent's estate reversed. McBride, J.

6. Criminal Law: Affirmed: Admission into evidence of witnesses' prior written statements and grand jury testimony was not improperly cumulative under Section 115-10.1 of Code of Criminal Procedure; permitting jury to have those statements and transcripts of testimony during deliberations did not constitute an abuse of discretion; trial counsel not ineffective for failing to argue self-defense and failing to move to strike certain testimony; 15-year firearm enhancement properly applied to murder sentence; and trial counsel did not have a conflict of interest stemming from prior representation of State witness. Epstein, J.

7. Negligence Law/Summary Judgment: Affirmed in part and reversed in part: Trial court properly granted summary judgment on claim of spoliation of evidence where defendant had no duty under circumstances to preserve the evidence, a mat which plaintiff alleged caused him to fall, but trial court erred in grant of summary judgment on negligence claim, in light of plaintiff's deposition testimony that fold in mat was what caused him to fall, and was not an "assumption" that the mat caused him to fall. Gordon, J., J.

8. Mortgage Foreclosure/Service of Summons: Affirmed: Summons bearing both the seal of the clerk of the circuit court and clerk's "stamped name" sufficient, despite defendants' claim that absence of "cursive signature" of clerk rendered summons invalid. Lampkin, J.

9. Public Employee Pension Law: Affirmed: Decision of fire and police board that petitioner police officer abused prescription drugs and violated "return to work agreement" regarding use of prescription drugs was not against manifest weight of the evidence, and petitioner's discharge properly upheld on administrative review. McLaren, J.

10. Child Neglect: Vacated: DCFS rule prohibiting "environment injurious" to a child so as to permit placement of offending parent or guardian to be placed on DCFS register, was not authorized by enabling statute and administrative law judge finding of such could not be sustained. Hutchinson, J. (Birkett, J., sp. concurring).

11. Criminal Law: Affirmed in part and vacated in part: Defendant proved guilty beyond a reasonable doubt of residential burglary; non-testifying victim's statement to police upon their arrival at scene admissible as an excited utterance and its introduction did not violate Crawford v. Washington; trial counsel not ineffective; but conviction for criminal trespass to residence vacated pursuant to "one act, one crime" rule. Turner, J.

9 Appellate Court Cases Posted 12-22-11

1. Insurance Law/Appellate Procedure: Reversed: It is appropriate to dismiss an appeal where appellant has abandoned it by not filing docketing statement, and briefs. To determine if an insurer has a duty to defend the insured, the court must compare the allegations in the underlying complaint to the relevant provisions of the insurance policy. As a general rule, where the factual allegations of a complaint fall within, or even potentially within, the scope of an insurance policy's coverage, the insurer is obligated to defend its insured,even if the allegations are groundless, false, or fraudulent. The factual allegations of the complaint, rather than the legal theory under which the action is brought, determine whether there is a duty to defend. We conclude that the Gramacki complaint clearly alleges physical loss or damage to the Nissan Pathfinder and Gramacki’s loss of the ability to use the vehicle as evidence in the products
liability action. Epstein, J.

No. 2011 IL App (1st) 101723 Universal Underwriters Insurance v. LKQ Smart Parts Filed 12-16-11 (LJD)

Universal Underwriters Insurance Company (Universal) brought an action for declaratory judgment against its insured, LKQ Corporation and its subsidiary LKQ Smart Parts, Inc. (collectively LKQ), and an alleged additional insured, Illinois Farmers Insurance Company (Farmers), seeking a declaration that its liability insurance policy did not cover a spoliation of evidence claim brought against Farmers and LKQ. On cross-motions for summary judgment, the trial court found that the policy did not cover the spoliation claim and, as a result, Universal had no duty to defend or indemnify Farmers or LKQ. The trial court granted summary judgment in favor of Universal and denied LKQ's and Farmers' summary judgment motions. LKQ appeals the order granting summary judgment in favor of Universal and denying
summary judgment to LKQ. For the reasons that follow, we reverse.

2. Civil & Appellate Practice: Affirmed: Three Types of consolidations discussed. To determine whether a particular consolidation was for disposition, the test is whether the cases might have been the subject of a single proceeding or could have been brought as one action. The test of whether an individual is an agent or independent contractor is generally a question of fact for the trier of fact. However, when the facts are not in dispute, the trial court is permitted to decide the issue as a matter of law and grant summary judgment. Multiple factors to determine agency discussed. No single factor is determinative, but the right to control the manner in which the work is performed is considered to be the most important factor. Hall, J.

No. 2011 IL App (1st) 091997 Dowe v. Birmingham Steel Filed 12-19-11 (LJD)

This consolidated appeal arises out of a collision between a semi tractor-trailer and an Amtrak1 passenger train at a railroad crossing in Bourbonnais, Illinois, on March 15, 1999, at approximately 9:47 p.m. For the reasons that follow, we affirm.

3. Real Estate/TIF Agreement: Affirmed: For purposes of the summary judgment motion, facts contained in an affidavit are admitted as true if not contradicted by a counteraffidavit
or other evidentiary material. public documents kept in the ordinary course of business are generally admissible as exceptions to the hearsay rule due to " 'the inconvenience to the public official in requiring him to testify, the trustworthiness of one charged with a public duty, and the fact that there is no motive for falsifying or misrepresenting. The county treasurer reports are public records "maintained by public officials or employees in connection with the performance of their official duties." Harris, J.

No. 2011 IL App (1st) 110748 Village of Arlington Heights v. Anderson Filed 12-20-11 (LJD)

Defendants-appellants Mark R. Anderson, B. Gregory Trapani, Jordan Kaiser, Walter Kaiser, and Village Green, LLC (collectively referred to as Village Green), appeal the order of the circuit court granting he motion of plaintiff-appellee Village of Arlington Heights' (Arlington Heights) for partial summary judgment on count I of Arlington Height's complaint for declaratory judgment and accounting. The trial court found that pursuant to a $350,000 note signed by the four named Village Green defendants, they jointly and severally owed Arlington Heights $290,375 plus interest.

4. Criminal Law: Reversed and Remanded: Plain error rule discussed. Extensive discussion of Terry stops, arrests and consensual encounters. 7 factors to determine if arrest set out and analyzed. The standard for determining whether probable cause exists rests on the probability that a crime was committed, which requires additional proof where there is a question of whether any crime had been committed, in addition to the question of whether defendant committed the potential crime. Salone, J., Murphy, J.specially concurs

No. 2011 IL App (1st) 1000068 People v. Surles Filed 12-21-11 (LJD)

Following a bench trial, defendant Darrell Surles was found guilty of multiple charges surrounding his possession of a revolver. The trial court merged its findings into a single conviction for violating the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2008)), predicated on two of defendant's prior convictions for unlawful use of a weapon by a felon and aggravated unlawful use of a weapon by a felon. Defendant filed a timely motion for a new trial, which was denied. For the following reasons, we reverse defendant's conviction and remand the matter for a new trial, with instructions.

5. Criminal Law: Affirmed: Section 115-10 of the Code provides that, in a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13, certain out-of-court statements made by the child may be admitted at trial as an exception to the hearsay rule where (1) the trial court conducts a hearing outside the presence of the jury to determine the reliability of the statements; and (2) the child testifies at trial or is unavailable and there is corroborative evidence of the act that is the subject of the statement. Zenoff, J.

No. 2011 IL App (2nd) 070550-B People v. Garcia-Cordova Filed 12-20-11 (LJD)

On February 8, 2007, a jury found defendant, Daniel Garcia-Cordova, guilty of three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). On defendant’s motion for judgment notwithstanding the verdict, the trial court entered judgments of acquittal on two of the three counts for which the jury had returned guilty verdicts. Defendant was sentenced to 24 years’ imprisonment on the remaining count. Defendant filed a motion to reconsider the sentence, which the trial court denied. Defendant then appealed. We initially dismissed this appeal for lack of jurisdiction on February 27, 2009, having found that defendant’s notice of appeal was premature. People v. Garcia-Cordova, No. 2-07-0550 (2009) (unpublished order under 2011 IL App (2d) 070550-B Supreme Court Rule 23). The Illinois Supreme Court issued a supervisory order on April 7, 2009, which vacated our February 27, 2009, order and directed us to treat defendant’s notice of appeal as validly filed. On June 26, 2009, this court filed an opinion, People v. Garcia-Cordova, 392 Ill. App. 3d 468 (2009) (Garcia-Cordova I), in which we affirmed the judgment of the trial court. On March 30, 2011, in a supervisory order denying defendant’s petition for leave to appeal, the Illinois Supreme Court directed us to vacate and reconsider our judgment in light of People v. Kitch, 239 Ill. 2d 452 (2011), to determine if a different result is warranted. In accordance with the supervisory order, we hereby vacate our prior judgment. Upon reconsideration, we affirm the judgment of the trial court.

6. Criminal Law: Affirmed: Plain error Doctrine Analyzed. Further, hearsay is an out-of-court statement offered to establish the truth of the matter asserted. Thus, an out-of-court statement that is necessary to show its effect on the listener’s mind or explain the listener’s subsequent actions is not hearsay. McLaren, J.

No. 2011 IL App (2nd) 091080 People v. Theis Filed 12-20-11 (LJD)

In the appeal of his predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(l) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(l) convictions regarding a two-year-old boy, S.C., defendant, John Theis, raises three issues. The first is whether the trial court improperly admitted into evidence his videotaped interrogation. The second is whether testimony and the prosecutor’s argument regarding defendant’s body language during his interrogation infringed on his right to remain silent. The third is whether the trial court erred by admitting an overwhelming amount of evidence of alleged other crimes. For the reasons set forth below, we affirm.

7. Criminal Law: Reversed and Remanded: Whether to accept or reject a guilty plea offer is a decision only the defendant can make. For this decision to be knowing and voluntary, a criminal defense attorney is required to fully inform the defendant of the facts and law related to the State's offer and must candidly advise the defendant concerning all aspects of the case, including direct consequences of accepting or rejecting the offer. Where deportation is a clear consequence, a criminal defense attorney is required to advise his or her
client that the pending charges may carry a risk of adverse immigration consequences. Lytton, J., McDade, J. dissents

No. 2011 IL App (3d) 090464 People v. Guzman Filed 12-20-11 (LJD)

Defendant, Jorge Guzman, was indicted for the offense of aggravated possession of stolen firearms (720 ILCS 5/16-1(a)(1) West 2008) and entered a negotiated guilty plea. On appeal, defendant argues that he trial court erred in denying his motion to withdraw his guilty plea because he was not informed of the potential immigration consequences of his conviction. We reverse and remand.

8. Real Estate: Affirmed: A petition for mandamus will be granted " 'only if a plaintiff establishes a clear, affirmative right to relief, a clear duty of the public official to act, and a clear authority in the public official to comply with the writ.' " "The TIF Act enables a municipality to eliminate blighted conditions by collecting real property tax increment revenues from local taxing districts within the TIF District and diverting the revenues to fund TIF District development projects. "When used in a statute, the word 'shall' is generally interpreted to mean that something is mandatory." Turner, J.

No. 2011 IL App (4th) 110244 IP Plaza v. Bean Filed 11-03-11 (LJD)

In March 2008, plaintiff, IP Plaza, LLC, filed a complaint for mandamus against defendant Stephen Bean, in his capacity as Macon County clerk, to compel Bean to certify the initial equalized assessed valuation (EAV) of certain real property under the Tax Increment Allocation Redevelopment Act (TIF Act) (65 ILCS 5/11-74.4-1 through 11-74.4-11 (West 2006)) in the manner set forth in relevant City of Decatur (the City) ordinances. In May 2008, Bean answered and filed a counterclaim against IP Plaza and the City, alleging the tax increment financing (TIF) district was invalid. In December 2008, Macon County (the County) filed a counterclaim against IP Plaza and the City. The City also filed a counterclaim against Bean and a third-party complaint for mandamus against Daysa Miller, the Macon County supervisor of assessments. In April 2009, the trial court dismissed the County's counterclaim based on equitable estoppel and laches. In February 2011, the court granted IP Plaza's and the City's motions for summary judgment and entered an order of mandamus. On appeal, Bean, Miller, and Macon County argue the trial court erred in granting the complaint for mandamus and in denying the County's and Bean's laches defenses to the mandamus claims. We affirm.

9. Post Conviction Relief: Affirmed: Generally, improper remarks by the prosecutor do not constitute reversible error unless they result in substantial prejudice to the defendant. Any
error resulting from the prosecutor's comments is usually cured when the trial court sustains objection or admonishes the jury. [F]elony criminal trials are serious matters with high stakes, and we expect advocates in our adversarial system of justice–both prosecutors and defense attorneys–to "use all of their forensic skills to persuade the jury of the wisdom or justice of their respective positions." We continue to be disinclined to become the "speech police" by imposing unnecessary restrictions upon closing arguments in criminal cases, and we encourage counsel to vigorously advocate for their position. Indeed, "trial courts and reviewing courts should step in only when it can truly be said that comments during closing arguments 'were so prejudicial that real justice was denied or that the verdict resulted from the error.' " Steigman, J.

No. 2011 IL App (4th) 100595 People v. Dunlap Filed 12-20-11 (LJD)

In July 2010, defendant, Joseph Teen Dunlap, pro se filed a petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 2010)), claiming that he was denied (1) his right to a fair trial because the prosecutor had vouched for the credibility of witnesses and argued facts not in evidence, and (2) the effective assistance of appellate counsel because his appellate lawyer failed to argue on direct appeal that the prosecutor made improper remarks during his opening statement and closing argument. Later that month, the trial court dismissed defendant's postconviction petition as frivolous and patently without merit.

7 Appellate Court Cases Posted 12-20-11

1. Civil/Pleadings/Motions: Affirmed: Plaintiff failed to allege facts demonstrating that defendant personally assisted in acts of gender-related violence and, consequently, the trial court properly dismissed count VI of plaintiff’s complaint. Plaintiff has not alleged any connection between defendant, the national organization, and Eric M.’s conduct. Gordon, Robt. E., J.

No. 2011 IL App (1st) 110306 Doe v. PSI Upsilon International Filed 12-16-11 (RJC)

On April 30, 2010, plaintiff Jane Doe, an 18-year-old freshman at the University of Chicago (the University), was allegedly sexually assaulted by Eric M., another student at the University. Plaintiff attended a party at the University’s chapter of defendant fraternity Psi Upsilon International,1 where she became heavily intoxicated, allegedly leaving her vulnerable to Eric M.’s attack later that night at his off-campus apartment. Plaintiff brought suit against defendant, alleging that it personally assisted and encouraged Eric M.’s acts of gender-related violence in violation of the Gender Violence Act (the Act) (740 ILCS 82/1 et seq. (West 2008)). Defendant filed a motion to dismiss the count against it pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2008)), arguing that it was not a “person” under the Act and that the allegations of the complaint did not demonstrate that defendant personally assisted Eric M. in his alleged assault against plaintiff. The trial court granted defendant’s motion to dismiss and plaintiff appeals, arguing that (1) defendant is a “person” under the Act and (2) the complaint was factually sufficient. We affirm.

2. Insurance/Arbitration: Affirmed: United did not refuse to participate in arbitration or refuse to pay the arbitration award. Although United did not pay the award as fast as Pryor had anticipated, Pryor has alleged no facts which indicate that United had an attitude suggestive of vexatiously delaying payment.United’s conduct was not vexatious and unreasonable under section 155. Also, appeal was based on “a good-faith argument for the extension, modification, or reversal of existing law” and is therefore not frivolous. Gordon, Robt. E., J.

No. 2011 IL App (1st) 110544 Pryor v. United Equitable Insurance Company Filed 12-16-11 (RJC)

Plaintiff Kevin Pryor filed suit in the circuit court of Cook County against defendant United Equitable Insurance Company to confirm an uninsured motorist arbitration award to judgment and alleged bad faith under section 155 of the Illinois Insurance Code (Insurance Code) (215 ILCS 5/155 (West 2008)). Subsequent to being served with the complaint, United paid the arbitration award of $9,775.46. United brought a motion to dismiss counts I and II and sought sanctions against Pryor’s counsel, Arthur H. Levinson. The trial court granted United’s motion to dismiss count II with prejudice regarding bad faith, granted the motion to dismiss count I confirming the arbitration award as moot and denied the motion for sanctions. On appeal, Pryor seeks reversal of the order dismissing count II of the complaint regarding bad faith, arguing that dismissal was improper because payment had not been made on the arbitration award prior to filing the complaint. We affirm.

3. Post Trial/JNOV: Affirmed: The trial court did not abuse its discretion when it granted a new trial on the basis of defense counsel’s improper closing arguments. The trial court was in the best position to judge the effects of defense counsel’s comments, and it found that, while each of defense counsel’s improper statements alone may be insufficient to merit a new trial, cumulatively they constituted grounds for a new trial. Testimony that Margaret was intoxicated and impaired was unreliable, and caused plaintiff to suffer unfair prejudice. Gordon, Robt. E., J.

No. 2011 IL App (1st) 103218 Petraski v. Thedos Filed 12-16-11 (RJC)

On May 28, 2001, Margaret Petraski (Margaret) and Officer Deborah Thedos, of the Cook County Sheriff’s Police Department,1 were involved in a motor vehicle accident at the intersection of the Midlothian Turnpike and Central Avenue in unincorporated Cook County. Officer Thedos admitted that she drove through a red light with her Mars lights activated. She had also activated her siren as she approached the intersection. Margaret was seriously injured in the accident and became a quadriplegic as a result of her injuries. Michael Petraski, Margaret’s son and legal guardian, brought a personal injury suit on her behalf against Officer Thedos and the officer’s employer Michael Sheahan, sheriff of Cook County. At the first trial, a jury found for plaintiff. Defendants appealed, claiming that evidence of Margaret’s blood-alcohol content (BAC) should have been admitted at trial. This court agreed and reversed the judgment and ordered a new trial. At the second trial, the jury found for the defendants. Plaintiff filed a posttrial motion for a new trial, which was granted by the trial court on October 4, 2010. On November 3, 2010, defendants filed a petition for leave to appeal the interlocutory order pursuant to Illinois Supreme Court Rule 306(a)(1)). On January 6, 2011, this court granted defendants’ petition for leave to appeal.

4. Criminal/Post-Conviction Hearing Act: Affirmed with sentencing order and mittimus corrected and modified: Defendant failed to make a substantial showing that counsel was ineffective in failing to present evidence corroborating defendant’s claims of physical abuse at defendant’s suppression hearing and affirm the dismissal of defendant’s postconviction petition. The sentencing order is to be modified to reflect the two counts of aggravated battery involving Birmingham and Mitchell to be served concurrently and order the mittimus to be corrected to reflect 813 days in presentence custody. Gordon, Robt. E., J.

No. 2011 IL App (1st) 092817 People v. Johnson Filed 12-16-11 (RJC)

Following a jury trial, defendant Deangelo Johnson was convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West 1992)) and three counts of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1992)). Defendant was sentenced to 45 years for the murder, and 10 years for each of the aggravated battery charges, to be served consecutively, for a total of 75 years in the Illinois Department of Corrections. His conviction was reversed on appeal , but the Illinois Supreme Court reversed the appellate court and remanded the case to the appellate court for consideration of defendant’s claims of ineffectiveness of counsel )). On remand, the appellate court affirmed defendant’s conviction. Defendant filed a petition for postconviction relief, in which he claimed in part that trial counsel was ineffective for failing to investigate defendant’s claims that his inculpatory statement was physically coerced by Detective Kriston Kato, that the State withheld exculpatory evidence by failing to turn over evidence of a pattern of Kato abusing suspects, and that appellate counsel was ineffective in failing to raise the issues on appeal. The postconviction petition was denied at the second stage, and defendant appeals, claiming: (1) he made a substantial showing that his right to effective counsel was violated and (2) two of defendant’s consecutive sentences are void because the victims did not suffer severe bodily injury. We affirm.

5. Criminal/Post-Conviction Hearing Act: Affirmed: Defendant did not properly verify the petition. “Section 122-1(b) of the Act provides that ‘[t]he proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition *** verified by affidavit.’ ” “Affidavits filed pursuant to the Act must be notarized to be valid,” and a trial court “properly dismisses a postconviction petition where the petition does not comply with the requirements of the Act.” Defendant’s verification was not notarized, and so it was not a proper affidavit under the Act. Jorgensen, J.

No. 2011 IL App (2d) 100424 People v. McCoy Filed 12-16-11 (RJC)

Defendant, Daniel K. McCoy, appeals the first-stage dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)); he asserts that he stated the gist of a claim of ineffective assistance of counsel and that the dismissal was thus error. The State responds that defendant did not properly verify the petition and that dismissal was therefore appropriate. Dismissal affirmed.

6. Criminal Law/Sentencing/MSR: Affirmed in part and vacated in part; cause remanded with directions. The power to impose an MSR term is exclusively the function of the trial court. Here, the DOC imposed a term of MSR under section 5-8-1(d)(4) of the Code. 730 ILCS 5/5-8-1(d)(4) (West 2006). However, it is the trial court’s duty, not the DOC’s, to sentence a defendant to a term of MSR within the statutory guidelines. Analysis fee of a qualifying offender's DNA is only to be ordered where the defendant is not currently registered in the DNA database. Lytton, J.

No. 2011 IL App (3d) 100193 People v. Munoz Filed 12-19-11 (RJC)

Defendant Lizarro Munoz was convicted of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2006)) and sentenced to 17 years in prison plus 2 years of mandatory supervised release (MSR). On appeal, he argues that (1) the Department of Corrections' (DOC) records should be corrected to comply with the trial court's sentence, and (2) the DNA testing and $200 analysis fee should be vacated. We affirm in part, vacate in part, and remand with directions.

7. Illinois Educational Labor Relations Board (IELRB): Reversed: The arbitrator's decision, adopted by the IELRB, went beyond the clear language of the collective-bargaining agreement. The decision did not draw its essence from the collective-bargaining agreement. The IELRB erroneously upheld the arbitrator's decision. Cook, J. with McCullough, J. dissenting.

No. 2011 IL App (4th) 100210 Griggsville-Perry Community Unit School District No. 4 v. The IIllinois Educational Labor Relations Board Filed 12-19-11 (RJC)

On March 7, 2008, Griggsville-Perry Federation of Support Personnel IFT-AFT, Local No. 4141 (the Union), filed a grievance on behalf of its member, Angie Hires, requesting that Griggsville-Perry Community Unit School District No. 4 (the District) allow Hires to continue in her current position with the District. Following a hearing, the arbitrator, Matthew W. Finkin, sustained the grievance and directed that Hires be reinstated with back pay and any benefits that would have accumulated. The District refused to comply with the award, which is the recognized manner in which an employer may challenge the validity of an award. The Union filed an unfair labor practice charge, but the Illinois Educational Labor Relations Board (IELRB) remanded the matter to the arbitrator to address this court's decision in Board of Education of Harrisburg Community Unit School District No. 3 v. Illinois Educational Labor Relations Board, 227 Ill. App. 3d 208, 591 N.E.2d 85 (1992). Griggsville-Perry Federation of Support Personnel, IFT-AFT, Local No. 4141, No. 2009-CA-0027-S (IELRB Feb. 22, 2010). On June 30, 2010, the arbitrator issued an amended arbitration award on remand, again directing that Hires be reinstated with back pay and any benefits that would have accrued. The District again refused to comply with the award. On February 16, 2011, the IELRB issued its opinion and order which is the subject of this appeal, ordering that the District cease and desist from refusing to comply with the arbitration award. On March 10, 2011, the District filed its petition for review in this court, pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994), and section 16(a) of the Illinois Educational Labor Relations Act (115 ILCS 5/16(a) (West 2008)), arguing that Hires was an employee at will and the arbitrator exceeded his authority by implying a dismissal standard in the parties' collective-bargaining agreement. We agree and reverse.

16 Appellate Court Cases Posted 12-16-11

1. Civil Procedure/Contract/Insurance Law: Reversed and Remanded: Judgment on the pleadings is proper when the pleadings disclose no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. It is similar to a motion for summary judgment but is limited to the pleadings. In ruling on a motion for judgment on the pleadings, the court must consider only those facts apparent from the face of the pleadings, judicial admissions in the record and matters subject to judicial notice. The court must take as true all reasonable inferences from those facts but construe the evidence strictly against the movant and disregard any conclusory allegations and surplusage. An insurer’s duty to defend arises if the facts alleged in the underlying complaint fall within or potentially within an insurance policy’s coverage. All that is needed is a document showing the intent of the assignor to vest ownership in the assignee of the “ ‘the whole or a part of some particular thing, debt, or chose in action’ ” that is described with “ ‘sufficient particularity to render it capable of contract,’ ” to the assignee. "[T]he present transfer of rights that are not yet due or may never become due is effective if it appears that there is an existing contract out of which the debt may arise." Karnezis, J.

2. Evidence: Affirmed: Generally, written police reports are not admissible in Illinois because they contain conclusions or are hearsay. However, police reports have been admitted into evidence, provided a proper foundation has been laid, as evidence of a past recollection recorded or for use in impeachment. 4 Foundational requirements for past recollection recorded set out and discussed. Harris, J.

3. Criminal Law: Affirmed: despite the defendant's failure to include this issue in the motion for a new trial, it is subject to plain error review because a speedy trial implicates fundamental constitutional concerns. Under the Speedy Trial Act, A trial court may continue the cause up to an additional 60 days if it "determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day." Two prong test for ineffective assistance of counsel discussed. Cunningham, J.

4. Domestic Relations/Appellate review: Affirmed: In civil bench trials, "[n]either the filing of nor the failure to file a post-judgment motion limits the scope of review." Furthermore, it has been repeatedly held that failure to raise an issue in a posttrial motion does not preclude a party from raising that issue on appeal in nonjury civil cases. The trial court "has no discretion to deny a proper motion for substitution of judge." In addition to the substantial issue rule, there is an exception that allows the denial of a motion for substitution of judge. When he happenings at a pretrial conference allow a party to "test the waters" and get an idea of the judge's opinion on some of the issues of the case, a motion for substitution of judge can be properly denied. The trial court has broad discretion in whether or not to reopen discovery, and that decision will not be disturbed absent an abuse of discretion. Cunningham, J.

5. Civil Procedure/Discovery Sanctions/Due Diligence under 2-1401: Affirmed: Where a circuit court's disposition of a section 2-1401 petition is functionally equivalent to a grant or denial of summary judgment, this court will review the circuit court's ruling under the same standard as we would a ruling on a motion for summary judgment. To obtain relief from a previous judgment or order under section 2-1401, a party must establish by a preponderance of the evidence a defense or claim that would have precluded entry of the judgment in the original action and its diligence in both discovering the defense or claim and presenting the petition. A party must follow the progress of its case, and a section 2-1401 petition will not relieve a party of the consequences of its attorney's neglect of a matter. Our supreme court has held that the belief that a section 2-1401 petition invokes the equitable powers of the court was mistaken and that the application of civil practice rules and precedent to such petitions factored out any notions regarding a court's discretion to do justice. We therefore decline to relax the due diligence standard in this case or depart from the general rule that a party is bound by the mistakes and negligence of its counsel. Murphy, J.

6. Class Action/Consumer Fraud Act: Affirmed: Trial court properly granted defendant bank's 2-615 motion to dismiss plaintiffs' class action, as bank's use of "365/360 bank method" of computing interest under terms of loan did not violate Interest Act or Consumer Fraud Act. Cunningham, J.

7. Criminal Law: Affirmed: Trial court error in deferring ruling on defendant's motion in limine regarding prior convictions harmless beyond a reasonable doubt in light of overwhelming evidence of guilt; trial court complied with Supreme Court Rule 431(b) in jury selection; sentence of 14 years not excessive in light of defendant's criminal history; and defendant properly sentenced to three years mandatory supervised release as a Class X offender by virtue of his background, rather than two -year term ordinarily applicable to offense of burglary. Murphy, J.,

8. Criminal Law: Affirmed and modified: Second amendment to U.S. Constitution did not persons to possess firearms outside of home for purposes of self-defense and Illinois legislature could properly prohibit possession of firearms outside the home, but $200 DNA fee would be vacated as defendant was previously assessed such in prior case. Pucinski, J.

9. Criminal Law: Affirmed: Trial court properly denied defendant's motion to withdraw guilty plea to offense of identity theft, as Section 16G-15(a)(4) was not facially unconstitutional for failure to require a culpable mental state, per dicta in People v. Madrigal, 241 Ill.2d 463 (2011). Schostok, J. (McLaren, J., dissenting)

10 . Criminal Law: Affirmed: Trial court properly refused to consider fact that defendant faced deportation as a factor in determining length of sentence for offense of first degree murder. Jorgensen, J.

11. Criminal Law: Affirmed: Where victim of home invasion had head "repeatedly" struck on wooden drawer so as to splinter drawer, had "numerous " lacerations to head and eye after being struck with gun, and was bound and duct-taped to point where he "almost" lost consciousness, evidence was sufficient to support trial court sentencing decision that victim sustained "great bodily harm," so as to require that defendant serve 85% of sentence, rather than receive "day for day" credit. Zenoff, J.

12. Traffic Law: Summary Suspension; Reversed and remanded: Failure of arresting officer to mark box indicating that service of Notice of Summary Suspension in connection with DUI arrest was by personal service or by mail was not a valid reason to rescind Statutory Summary Suspension, and trial court order for rescission was error. Burke, J. (McLaren, J., dissenting)

13. Criminal Law: Affirmed: Where defendant withdrew a timely filed post-conviction petition, and then sought to "re-file" one six years later, the trial court properly dismissed the petition, as the Post-Conviction Hearing Act requires that any such petition be filed within one year following withdrawal. Schostok, J.

14. Criminal Law: Reversed: Evidence insufficient to prove that defendant had knowledge of, or control over, gun found in connection with shooting, and defendant's convictions reversed.

15. Criminal Law: Affirmed: Code of Criminal Procedure requires that an extra-territorial arrest will be justified only when the arresting officer has "first-hand" and "personal" knowledge that the defendant has committed a crime, rather than relying on information told to him or her by others, and trial court order granting defendant's motion to suppress evidence was proper where Chicago police officers arrested defendant in Will County. Bowman, J.

16. Mandamus/Attorney's fees: Reversed and remanded: Under Indemnification Act, trial court erred in dismissing former elected county state's attorney's petition for mandamus to compel Attorney General to pay state's attorney's costs and attorney's fees in connection with civil rights action, and petition was not barred by statute of limitations. Pope, J.

2 Supreme Court Cases Posted 12-15-11

1. Jurisdiction: Affirmed: The issue in this case is whether the circuit court had jurisdiction to enter summary judgment in favor of the Township of Jubilee and against the State of Illinois (State) in an action to quiet title. In this decision, the supreme court said that, initially, the State could not have been sued in circuit court. However, what happened here is that the State went beyond merely defending itself when it subsequently invoked the jurisdiction of the circuit court to assert its own claim that it was entitled to have title quieted in its favor. Karmier, J.

The State of Illinois maintains a state park on land which was once the home of a school founded in the nineteenth century as Jubilee College.The State has record title to most of the acreage now comprising the park, based on sales and conveyances made after the college was dissolved. The two parcels at issue here, however, cannot be so traced. Although the State has placed a sign there and has been mowing the grass, no legal instruments have been recorded against these parcels since the land was originally surveyed and platted in 1860 by the trustees of Jubilee College, to whom all of the much larger tract had originally been donated. When the plat was certified, these now-contested parcels complied with the legal requirements then in effect for a statutory dedication. The dedication was impliedly accepted by the Township of Jubilee, and fee simple vested in the public.In 2003, the township filed a declaratory judgment action in the circuit court of Peoria County seeking to quiet title. Named as defendants were the State of Illinois and other parties. The State moved to dismiss, claiming that it was immune from suit in circuit court, that it could only be sued in the Court of Claims, and that the circuit court lacked jurisdiction. This motion was denied. Subsequently, the State filed a counter-complaint which was structured as a separate action to quiet title, and much later, in 2009, it moved for summary judgment. The township responded with its own motion for summary judgment and was successful. The appellate court affirmed the circuit court=s grant of summary judgment to the township quieting title, finding no lack of jurisdiction. It also upheld the circuit court on the merits, declining to reach, as speculative and premature, the State=s critique that the township wanted to sell land which must be preserved for public purposes because there had been a statutory dedication. The State appealed to the supreme court on the jurisdictional issue.

2. Criminal Law: Affirmed: Section 407(b)(2) of the Illinois Controlled Substances Act (the Act) (720 ILCS 570/407(b)(2) (West 2008)) provides that the offense of delivery of a controlled substance is a Class 1 felony when committed within 1,000 feet of the real property comprising any “school.” The single issue in this appeal is whether the term “school” contained in this section includes preschools. The term “school” is not defined in any other portion of the Controlled Substances Act. However, the 1991 amendatory act which added the “school” provision at issue here also amended or created numerous other pieces of legislation to increase the penalty for various different offenses which take place on or around school grounds. In so doing, it defined “school” as “any public or private elementary or secondary school, community college, college or university.” Two appellate court decisions which are 20 years old have held that this definition is also applicable to the “school” provision at issue here, which was implemented by the same amendatory act. In numerous amendments since that time, the legislature has not chosen to alter this two-decades-old result reached in the appellate court. Because the legislature has not clearly indicated an intention contrary to that judicial construction, the meaning of “school” within the Controlled Substances Act should be understood in the same sense attributed to it by the courts in those previous decisions, that is, as not encompassing a preschool. Burke, J.

13 Appellate Court Cases Posted 12-13-11

1. Speedy Trial Act: Reversed and Remanded: "[a]n amendment to a statute is presumed to be intended to effect a change in the law as it formerly existed." The 2000 amendment to the speedy trial statute clarified that a defendant's failure to appear in court operates as a waiver to a prior demand. We find that "explained" failures to appear and "unexplained" failures to appear hold no relevance where there is no such distinction in the language of the statute. Lampkin, J.

2. Administrative Review: Affirmed in part and remanded in part: The setting of utility rates is a legislative function, not judicial, with the Commission acting as the fact-finding body. When reviewing an order from the Commission, we give deference to the Commission's decision, in light of its expertise and experience in this area. A mixed question of law and fact is reviewed under the clearly erroneous standard. Nonetheless, that the clearly erroneous standard is largely deferential does not mean, however that a reviewing court must blindly defer to the agency’s decision. Illinois courts have allowed utilities to recover rate case expense because "[t]he costs incurred by a utility to prepare and present a rate case are properly recoverable as an ordinary and reasonable cost of doing business." McBride, J.

3. Domestic relations: Affirmed: (“[T]erms of an agreement set forth in the judgment are automatically modified by modification of the judgment.”). In the case of an unallocated lump-sum support obligation, a party may not unilaterally reduce the amount of support paid and must petition the court for any modifications. The unilateral pro rata reduction of lump-sum periodic support payments for the benefit of more than one child upon the emancipation of a child is impermissible Robert Gordon, J.

No. 2011 IL App (1st) 103753 In re Marriage of Rice Filed 12-09-11 (LJD)

By 2009, all four of the parties’ children were emancipated, and Daniel was in arrears approximately $40,000, including interest that began accruing in 2006. However, at Madonna’s request, the interest calculation was changed to reflect interest accruing beginning in 1991, resulting in a revised arrearage amount of approximately $80,000. Daniel filed a petition for clarification of his child support obligations and the arrearage amount. The trial court found that the reduction provision did not control the amount of child support owed and that the larger interest calculation was correct. The court denied Daniel’s motion to reconsider and Daniel appeals, arguing that: (1) the 1990 court order modifying Daniel’s child support obligation had no effect on the reduction provision, (2) the reduction provision was not against public policy and that argument should be barred by laches, (3) the 1990 court order was within the guidelines of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/101 et seq. (West 2008)), and (4) the Illinois Department of Healthcare and Family Services cannot assess interest for sums owed prior to January 1, 2000, since that is within the discretion of the trial court. We affirm.

4. Illinois Pension Code: Affirmed and remanded: The Board's decision was clearly erroneous. Esquivel presented sufficient evidence to satisfy the requirements of section 5-214(c) and should be awarded the applicable pension service credits. Esquivel "is clearly one whom this pension statute was intended to benefit" and his work satisfied the plain and ordinary meaning of investigative work. McBride, J.

No. 2011 IL App (1st) 111010 Esquivel v. The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago Filed 12-09-11 (RJC)

Defendant, the Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago (the Board), appeals from the circuit court’s order reversing the Board's denial of plaintiff Frank J. Esquivel's application for pension service credits for his work as a civilian employee for the Chicago police department. On appeal, the Board argues its decision finding that Esquivel's position as a civilian senior public safety aide/bilingual did not qualify for credit as prior other service pursuant to section 5-214(c) of the Illinois Pension Code (40 ILCS 5/5-214(c) (West 2008)) was correct and the trial court erred in reversing the Board's decision. Affirmed and remanded.

5. Domestic Relations: Affirmed and remanded: Party cannot fail to disclose information on value of the assets at issue and then complain that the trial court erred in not placing a specific value on them. The trial court did not abuse its discretion in distributing the martial property in “just proportions” without placing a specific value on property when neither party presented any evidence of their value to the trial court. The trial court decided the issue of maintenance and did not bifurcate the judgment as respondent claims. Respondent did not prove by clear and convincing evidence that he acquired his ownership interests as gifts because he was unable to overcome the presumption that his interests were marital property. Gordon, Robt. E., J.

No. 2011 IL App (1st) 092636 In re Marriage of Hluska Filed 12-09-11 (RJC)

Respondent Mike Hluska1, age 57, appeals certain provisions in a judgment for dissolution of his marriage to petitioner, Rebecca Hluska, age 54. On appeal, respondent claims that the trial court erred in: (1) apportioning marital assets, awarding maintenance, and awarding attorney fees to Rebecca without first valuing certain marital and nonmarital assets; (2) reserving allocation of Rebecca’s credit card obligations; and (3) classifying his ownership interests in two corporations as marital assets. Affirmed.

6. Judgment Interest: Reversed and remanded: Defendant's post-verdict offer to tender amount of verdict and costs was insufficient to halt further accrual of post-judgment interest, even though plaintiff appealed verdict, where offer to tender made no mention of payment of interest already accrued, and plaintiff's alleged failure to respond to defendant's letter regarding tender did not constitute a waiver of right to insist upon interest thereafter. Gordon, R., J.

No. 2011 IL App (1st) 101847 Poliszczuk v. Winkler Filed 12-9-11 (TJJ)

Following a jury trial, plaintiffs were awarded damages totaling $39,100 in a personal injury action against defendant, with $30,100 awarded to Marie and $9,000 to Joseph. The trial court entered judgment on the verdict plus costs on September 12, 2006. Plaintiffs appealed the denial of their motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. This court affirmed the trial court in an opinion dated December 1, 2008. Poliszczuk v. Winkler, 387 Ill. App. 3d 474 (2008). After the mandate was issued, plaintiffs presented a motion for postjudgment interest and costs. The circuit court entered an order stating: “Plaintiffs’ motion for interest is granted in part; Defendant to pay interest from September 16, 2006 to February 6, 2007 (137 days at .38/year) because of a satisfactory tender at that date.”Plaintiffs appeal the trial court’s order for partial payment of interest arguing (1) that the trial court erred when it determined that a sufficient offer of tender was made by defendant on February 6, 2007, and (2) that the trial court erred when it determined that plaintiff rejected a sufficient offer of tender. Reversed and remanded.

7. Criminal Law: Reversed: Evidence was insufficient to prove defendant guilty beyond a reasonable doubt of first degree murder where DNA found in swabs from vagina of 11-year-old victim did not match defendant's profile, despite evidence that defendant confessed. Hutchinson, J.

No. 2011 IL App (2d) 091060 People v. Rivera Filed 12-9-11 (TJJ)

In May 2009, following a jury trial, defendant, Juan A. Rivera, Jr., was convicted of first degree murder for the 1992 killing of 11-year-old Holly Staker, the victim. The trial court sentenced defendant to life imprisonment without the possibility of parole. Thereafter the trial court denied defendant’s posttrial motions, and defendant filed a timely notice of appeal. Defendant presents seven issues for review: (1) whether the State presented sufficient evidence to prove his guilt beyond a reasonable doubt; (2) whether his constitutional rights were violated when the trial court excluded certain expert witness testimony relating to the effects his psychiatric and psychological conditions were apt to have had on him and on the reliability of his statements during questioning using particular interrogative techniques; (3) whether evidence relating to the victim’s sexual history violated the Illinois rape shield statute and the rules of evidence; (4) whether defendant should have been allowed to examine a witness regarding polygraph examinations; (5) whether the trial court violated this court’s earlier mandate and Illinois evidence law when it allowed the State to present evidence regarding malfunctions in electronic monitoring units other than the one assigned to defendant; (6) whether defendant was denied the right to present a defense when the trial court excluded defense evidence rebutting the State’s claim that defendant knew facts that only the perpetrator could have known; and (7) whether defendant’s statements should have been suppressed as involuntary. Because the State’s evidence was insufficient to sustain the jury’s verdict, we reverse. Accordingly, we do not reach the remaining issues.

8. Civil Procedure: Affirmed in part and reversed in part and remanded: In action claiming that defendants improperly accessed plaintiff-employee's personal email via computer where plaintiff worked, trial court grant of summary judgment to defendants was error where "intent" of defendants constituted a genuine issue of material fact despite defendants' claims that they observed emails by "accident," and dismissal of one defendant pursuant to Statute of Limitations was error where doctrine of "relation back" under Section 2-616 of Code of Civil Procedure operated to place one defendant within Statute. Schostok, J.

No. 2011 IL App (2d) 101257 Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc. Filed 12-7-11 (TJJ)

After the plaintiff, Diane Borchers, found out that her former employer, the defendant Franciscan Tertiary Province of the Sacred Heart, Inc., d/b/a Mayslake Village, Inc. (Mayslake), had accessed her personal e-mail account and printed out over 30 personal e-mails, she brought suit against Mayslake, alleging violations of title II of the federal Electronic Communications Privacy Act of 1986 (the Stored Communications Act) (18 U.S.C. § 2701 et seq. (2006)) and the tort of intrusion upon seclusion. Later she added as individual defendants two employees of Mayslake: her former boss, Michael Frigo, and his administrative assistant, Katherine Maxwell. Mayslake filed a motion for summary judgment and the trial court granted it, finding that the plaintiff had not produced sufficient evidence that the defendants acted intentionally. The trial court also granted the individual defendants’ motion to dismiss the complaint as to them on the grounds that they were not named as defendants until after the statute of limitations had run, and the cause of action as to them did not “relate back” to the filing of the original complaint. The plaintiff appealed. We affirm in part and reverse in part, and remand for further proceedings.

9. Criminal Law: Reversed and remanded: Trial court blanket refusal to permit attorneys to ask questions directly to venire, without considering factors set forth in Supreme Court Rule 431(a), constituted an abuse of discretion entitling defendant to a new trial. Zenoff, J.

No. 2011 IL App (2d) 100380 People v. Gonzalez Filed 12-7-11 (TJJ)

Defendant, Ernesto Gonzalez, appeals from his convictions of aggravated assault of a peace officer (720 ILCS 5/12-2(a)(6) (West 2008)) and resisting a peace officer (720 ILCS 5/31-1(a) (West 2008)). He contends that the trial court failed to comply with Illinois Supreme Court Rule 431(a) (eff. May 1, 2007) when it denied his counsel the opportunity to question prospective jurors directly during voir dire. For the following reasons, we reverse and remand for a new trial.

10. Traffic Law/DUI: Affirmed in part, reversed in part and remanded: Failure of hospital personnel to store defendant's blood samples in tubes containing an anticoagulant and a preservative constituted a lack of substantial compliance with Department of State Police standards, and trial court ruling suppressing results of tests on samples upheld, but trial court order dismissing complaints later filed by State on speedy trial grounds reversed where defendant never filed a demand for trial. McLaren, J.

No. 2011 IL App (2d) 100262 People v. Hall Filed 12-9-11 (TJJ)

The State appeals from the trial court’s orders barring the use of the blood alcohol test results of defendant, David M. Hall, and dismissing one count of driving under the influence (DUI) (625 ILCS 5/11-501(a)(1) (West 2006)). We affirm in part, reverse in part, and remand.

11. Public Employee Disability/Pension Law: Reversed and remanded: Pension board decision, upheld by circuit court, that police officer was not acting in performance of his official duties when he attempted to aid stranded motorist by pushing vehicle out of snow and ice, was against the manifest weight of the evidence, and plaintiff entitled to a line-of-duty disability pension for hernia suffered in connection with his efforts. Carter, J.

No. 2011 IL App (3d) 110098 Mingus v. The Board of Trustees of the Police Pension Fund of Peoria Filed 12-9-11 (TJJ)

Plaintiff, John A. Mingus, a Peoria police officer who was injured on duty while trying to push a motorist's stuck vehicle out of the snow, applied for a line-of-duty disability pension. After a hearing, the Board of Trustees of the Police Pension Fund of Peoria (the Board) found that Mingus's injury was not a result of the performance of an act of duty and awarded Mingus a nonduty disability pension instead. The trial court affirmed the Board's ruling upon administrative review. Mingus appeals, arguing that the Board erred in finding that his injury was not incurred in the performance of an act of duty and in denying his request for a line-of-duty disability pension on that basis. We reverse the trial court's ruling, set aside the Board's ruling, and remand this case with directions to the Board to award Mingus a line of duty disability pension.

12. Traffic Law/DUI: Affirmed: Trial court ruling that air freshener (three inches wide by four or five inches in length) hanging from rearview mirror that, in officer's estimation "would have to impair [defendant's] ability to - - obstruct his view" was sufficient to constitute a reasonable suspicion that the Vehicle Code was violated so as to justify stop of defendant's car and subsequent discovery of cannabis. Turner, J. (Appleton, J., dissenting).

No. 2011 IL App (4th) 110272 People v. Price Filed 12-12-11 (TJJ)

In March 2011, the trial court found defendant, Ryan M. Price, guilty of driving under the influence (DUI), unlawful possession of drug paraphernalia, and unlawful possession of cannabis. The court sentenced him to 2 years of conditional discharge and 20 days in jail. On appeal, defendant argues the trial court erred in denying his motion to suppress evidence and his motion to rescind the statutory summary suspension. We affirm.

13. Arrest Expungements/Fees: Certified question answered: Section 5-105.5(b) of Code of Civil Procedure authorized waiver of all fees and costs in connection with a petition to expunge an arrest under the Criminal Identification Act where petitioner is represented by "a civil legal services provider," as petition for expungement is a civil action. Spomer, J.

No. 2011 IL App (5th) 110279 People v. Lewis Filed 12-9-11 (TJJ)

These cases come to us on interlocutory appeal, pursuant to Supreme Court Rule 308(a), from the circuit court of Jackson County, which certified the following question for our review: whether fee and cost waiver certifications, filed pursuant to section 5-105.5(b) of the Code of Civil Procedure, are sufficient to waive fees for the filing of petitions for expungement. For the following reasons, we answer the certified question in the affirmative, reverse the April 26, 2011, orders, vacate the June 27, 2011, orders, and remand with directions to enter orders allowing the fee waivers in their entirety, pursuant to section 5-105.5(b) of the Code.

2 Appellate Court Cases Posted 12-12-11

1. Criminal Procedure: Appeal Dismissed: An order suppresses evidence "within the meaning of Rule 604(a)(1) when the trial court's order 'prevents [the] information from being presented to the fact finder.' " An order that only affects the means by which the State may present information does not suppress evidence, so this court lacks jurisdiction to consider appeals from such orders. Since the order does not prevent State from introducing evidence, Appellate Court has no jurisdiction. Neville, J.

2. Criminal Law: Affirmed: multiple convictions are prohibited where the offenses are carved from the same physical act or where, with regard to multiple acts, one of the offenses is a lesser included offense of the other. However, multiple convictions “should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts.” Two prong analysis required. First, the court must determine whether the defendant’s conduct involved multiple acts or a single act. Multiple convictions are improper if they are based on precisely the same physical act. Second, if the conduct involved multiple acts, the court must determine whether any of the offenses are lesser included offenses. If an offense is a lesser-included offense, multiple convictions are improper.” Jorgenson, J.

9 Appellate Court Cases Posted 12-8-11

1. Insurance Coverage Law: Affirmed in part, reversed in part, and remanded: In declaratory judgment action brought by insurer asking for determination that it was not obligated to indemnify insured for liability in connection with claims arising from alleged unsolicited faxes in violation of federal Telephone Consumer Protection Act and state Consumer Fraud Act, trial court properly denied insured's motion for forum non conveniens, but trial court erred in dismissing several counts, as determining applicability of policy's intentional acts exclusion was premature and might improperly prevent insured from claiming in underlying action that its conduct was not intentional. Rochford, J.

2. Municipal Housing Law: Affirmed: In action for administrative review of City of Chicago decision that plaintiff-homeowner violated ordinances prohibiting "weeds-grass over 10" tall," plaintiff's motion for substitution of judge did not meet threshold requirement to require transfer to another judge for resolution and motion was properly dismissed; administrative law judge not required to issue subpoenas at plaintiff's request; plaintiff given proper notice of violation in face of vagueness claim; and ordinance prohibiting growth of "weeds" above ten inches not void for vagueness. Rochford, J.

3. Insurance Coverage Law: Affirmed: Despite fact that insured failed to comply with Rule 237 notice to appear at mandatory arbitration, evidence justified trial court conclusion that insured did not "wilfully refuse to cooperate" under terms of policy, and insurer obligated to pay judgment amount, and claim of estoppel relating to judicial determination of "bad faith" in prohibiting insured to reject arbitration would not be applied. Rochford, J.

4. Criminal Law: Affirmed in part, vacated in part, and remanded: Trial court properly denied defendant leave to file successive postconviction petition where "affidavit" was not sufficient either as to form or content, where it only claimed that eyewitness had told affiant and original trial counsel that eyewitness did not see shooting, but trial counsel failed to use that to impeach witness at trial, and did not satisfy "cause and prejudice" test; but trial court's decision to dismiss 2-1401 petition before expiration of 30-day period for State to file any responsive pleading was error. Harris, J.

5. Probate Law: Affirmed: Where no report of proceedings was transcribed (at least in appellate court record) of proceedings wherein plaintiff was removed as trustee of decedent's estate, trial court ruling as to removal was presumed to be correct, and record similarly devoid of any indication that plaintiff was not given proper notice of attempt to remove. Cook, J.

6. Criminal Law: Reversed and remanded: Where trial court did not "re-characterize" post-judgment filings as a petition under Postconviction Hearing Act, but only questioned defendant as to whether he wished his filings to proceed under Act or under Section 2-1401 of Code of Civil Procedure, trial court was not obligated to provide admonishments set forth in People v. Shellstrom, 216 Ill.2d 45 (2005); but trial court erred in failing to appoint counsel for defendant in resolving State's motion to dismiss petition, as Postconviction Hearing Act requires such absent dismissal at so-called first stage without State's involvement. Steigmann, J.

7. Juvenile Law/Sentencing: Remanded with instructions: Respondent was arrested on May 1, 2009, even though he was not admitted to the Juvenile Detention Center. Respondent was subsequently placed on a formal station adjustment as a result of this arrest and thereafter committed to the Department. Because respondent was arrested on May 1, 2009, he had the legal duty to submit to the control of the arresting officers. Thus, respondent's arrest fits within the definition of custody and respondent is entitled to an additional one day of credit against his sentence. Cook, J.

In December 2009, respondent, Jabari C., entered an open guilty plea to an amended charge of unlawful possession with intent to deliver cannabis on school grounds, a Class A misdemeanor (720 ILCS 550/5.2(e) (West 2008)). In exchange for respondent's guilty plea, the State agreed (1) to dismiss the original charge of delivery of cannabis on school grounds, a Class 4 felony (720 ILCS 550/5.2(d) (West 2008)) and (2) to not file a delinquency petition for Champaign County sheriff's department report No. 083343J, an unrelated case. On March 18, 2010, the trial court adjudicated respondent a delinquent minor and ordered him a ward of the court. The court further ordered him "committed to the Illinois Department of Juvenile Justice [(the Department)] for an indeterminate term which shall automatically terminate in 364 days or upon [respondent] attaining the age of 21 years, whichever comes first, unless he is sooner discharged from parole or custodianship is otherwise terminated in accordance with the Juvenile Court Act or is otherwise provided for by law." Additionally, the court awarded respondent 17 days of sentence credit for time previously spent in custody. On appeal, respondent argues he is entitled to one additional day of sentence credit for the date of his original arrest. The State disagrees and argues respondent was properly awarded 17 days' credit. The State argues respondent was not entitled to one day of sentence credit for the date of his original arrest because juveniles should not be entitled to predetention credit for station adjustments. We agree with respondent and remand with directions.

8. Criminal Law/Sentencing: Affirmed in part and vacated in part: No abuse of discretion in this respect, considering that defendant failed to make the offer of proof required by subsection (b) of the rape-shield statute (725 ILCS 5/115-7(b) (West 2010)). When viewed in a light most favorable to the prosecution, a rational trier of fact could find the elements of the charged offenses to be proved beyond a reasonable doubt. The children's advocacy center assessment is an ex post facto punishment because the defendant committed the offenses during the period of February 24, 2000, to September 5, 2007, before the statute authorizing the imposition of the assessment went into effect on January 1, 2008. Appleton, J.

No. 2011 IL App (4th) 100434) People v. Maxwell Filed 12-6-11 (RJC)

A jury found defendant, Donnie Andre Maxwell, guilty of two counts of predatory criminal sexual assault, three counts of criminal sexual assault, and one count of aggravated criminal sexual abuse. The trial court sentenced him to consecutive terms of imprisonment on each conviction, aggregating to 54 years of imprisonment. Defendant appeals on the following grounds. First, he argues that the trial court violated his constitutional right to confront adverse witnesses in that the court prohibited defense counsel from cross-examining the State's medical expert on whether the physical evidence of sexual penetration could have resulted from sexual intercourse with someone other than defendant Second, defendant argues the State failed to prove him guilty beyond a reasonable doubt. Third, defendant argues that a children's advocacy center assessment in the amount of $15 should be vacated as an ex post facto punishment. Therefore, we affirm the trial court's judgment in part and vacate it in part. We vacate the children's advocacy center assessment and remand this case with directions to amend the sentencing judgment accordingly. Otherwise, we affirm the judgment.

8. Domestic Relations: Affirmed: The evidence supported the trial court's determination of Bobby's net income and its calculation of his child support obligation. The court's order reflects its careful consideration of each applicable factor to be considered under sections 504(a)(1) through (a)(12) (750 ILCS 5/504(a)). The court did not abuse its discretion in awarding Vicki $250 per week in maintenance. The relative financial circumstances of the parties merited a contribution toward Vicki's fees under section 508(a). Additionally, Bobby unnecessarily increased the costs of the litigation. This was a relevant factor the trial court could consider in making an award. Finally, because Bobby's personal efforts produced the farm income, and "the source of the cash in the P.O.D. account was undisputed; it came from farm income," the POD account was marital property. McCullough, J.

No. 2011 IL App (4th) 110392) In re: the Marriage of Bradley Filed 12-6-11 (RJC)

On April 3, 2009, petitioner, Vicki Bradley, petitioned for dissolution of her marriage to respondent, Bobby Ray Bradley. On April 12, 2011, the trial court entered a judgment dissolving the marriage, addressing issues of property distribution and maintenance. Bobby appeals, arguing (1) the trial court erred by barring his claim that a farm was nonmarital property (2) the trial court erred in the amount it awarded Vicki for her attorney fees, (3) the trial court's maintenance award of $250 per week was an abuse of discretion, (4) the trial court erred in determining Bobby's net income and setting his child support obligation, and (5) the trial court erred in finding a payable on death account was marital property. We affirm.

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3 Supreme Court Cases Posted 12-30-11