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  Illinois Supreme and Appellate Court Case Summaries
    

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People v. Garcia, 2015 IL App (1st) 131180

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2015 IL App (5th) 120401

1 Appellate Case Posted 7-3-17

1. Mortgage Foreclosure: Affirmed: Trial court properly granted judgment of foreclosure over claim by mortgagee that bank violated "single refiling rule," as subsequent filings by bank related to separate causes of action relating to subsequent breaches of loan modification agreements. Carter, J.

No. 2017 IL App (3d) 150764  Wells Fargo Bank, N.A. v. Norris  Filed 7-3-17 (TJJ)


Plaintiff, Wells Fargo Bank, N.A., as trustee for a certain specified trust, brought an action against defendant, Arthur Norris, and others seeking to foreclose upon a mortgage held on certain real property in Rock Island County, Illinois. During pretrial  proceedings, Wells Fargo moved for summary judgment on the foreclosure complaint. Defendant opposed the motion, claiming, among other things, that Wells Fargo’s foreclosure complaint was barred by the single refiling rule (735 ILCS 5/13-217 (West  1994)). Following a hearing, the trial court granted summary judgment for Wells Fargo on the mortgage foreclosure complaint. After defendant’s motion to reconsider was denied, the property was sold at a foreclosure sale, and the sale was confirmed by  the trial court. Defendant appeals, challenging the trial court’s grant of summary judgment for Wells Fargo. We affirm the trial court’s judgment.

7 Appellate Cases Posted 6-30-17

1. Criminal Law: Affirmed: Trial counsel in sex offense case based largely on DNA evidence was not ineffective for allegedly failing to challenge statistical "product rule" used in determining probabilities of a "match" using nine loci, as evidence relating to nine loci "matches" in the applicable database shows that jurors were not misled regarding DNA evidence, and the trial court properly dismissed post-conviction petition. Neville, J.

No. 2017 IL App (1st) 150642  People v. Richmond  Filed 6-30-17 (TJJ)


A jury found Darnell Richmond guilty of aggravated criminal sexual assault, based largely on DNA evidence. Richmond now appeals from the dismissal of his postconviction petition as patently without merit. He argues that his attorney should have sought  in discovery the number of nine-locus matches in the Illinois DNA database to challenge the use of the product rule to estimate the probability that a person at random would match the DNA of the sperm found in the victim at the nine loci where  Richmond’s DNA matched the sperm. We find that, because a prior analysis of the number of matches actually found in the Illinois database broadly supported the use of the product rule, the failure to request an update of the data in discovery does not  show ineffective assistance of counsel. Accordingly, we affirm the Cook County circuit court’s dismissal of the postconviction petition.

2. Criminal Law: Affirmed: Trial court rulings regarding credibility of witnesses presented by defendant at third stage evidentiary hearing on post-conviction proceeding were not against maniofest weight of the evidence, and original trial counsel was not ineffective for not presenting those witnesses at trial. Lamokin, J.

No. 2017 IL App (1st) 152021  People v. Williams  Filed 6-30-17 (TJJ)


Defendant Otis Williams, who was convicted of murder, presented alibi testimony at his third-stage postconviction evidentiary hearing in support of his claim of ineffective assistance of trial counsel. At the close of defendant’s evidence, the State moved for  a directed finding, and the circuit court granted that motion. The circuit court found that the alibi witnesses were not credible and defendant thus failed to show trial counsel rendered ineffective assistance by not interviewing or calling those alibi  witnesses. For the following reasons, we hold that the circuit court’s findings about witness credibility and the weight and quality of the evidence were not against the manifest weight of the evidence. Accordingly, we affirm the judgment of the circuit court  that granted the State a directed finding and denied defendant postconviction relief at the third-stage evidentiary hearing.

3. Civil Pocedure/Respondeat superior: Reversed and remanded: In civil action against cab company alleging that cab driver who assaulted plaintiff was agent of company, trial court erred in granting summary judgment to cab company, as there was a genuine issue of material fact as to whether driver was an "apparent agent" of cab company so as to potentially render company liable. Reyes, J.

No. 2017 IL App (1st) 153515  McNerney v. Allamuradov  Filed 6-30-17 (TJJ)


After Susanna McNerney (McNerney) contacted 303 Taxi, L.L.C. (303) to arrange transportation, a taxicab marked with 303’s logo, telephone number, and distinctive colors arrived at McNerney’s residence at the designated time. The taxicab driver,  Muhtar Allamuradov (Allamuradov), sexually assaulted McNerney as he drove her to the airport. McNerney filed an action in the circuit court of Cook County against (i) Allamuradov, (ii) 303, a taxicab dispatch company, and (iii) Grand Transportation,  Inc. (Grand), which had leased the taxicab to Allamuradov. On appeal, McNerney challenges the grant of summary judgment in favor of 303 and Grand. She also contends that the circuit court erred in not permitting her to supplement the record with certain “newly discovered” evidence, including a license application completed by Allamuradov. In separately-filed cross-appeals, Grand and 303 contend that this Court lacks jurisdiction because the circuit court improperly considered McNerney’s  late-filed motion contesting the grant of summary judgment. For the reasons set forth below, we find that this Court has jurisdiction, and we reverse the decision of the circuit court granting summary judgment and remand this matter for additional  proceedings.

4. Class Actions: Affirmed: Plaintiff medical care providers had no standing under Workers' Compensation Act to maintain class actions against insurance compnies for alleged failure to pay medical bills in a timely manner as required by the Act. Rochford, J.

No. 2017 IL App (1st) 160756  Marque Medicos Fullerton, LLC v. Hartford Underwriters Insurance Co.  Filed 6-30-17 (TJJ)


In these consolidated appeals, plaintiffs-appellant appeal from the dismissal, with prejudice, of four separate putative class-action lawsuits filed against defendants-appellees. For the following reasons, we conclude that the circuit court had subject-matter  jurisdiction to consider plaintiffs’ claims and that those claims were properly dismissed with prejudice.

5. Title Insurance: Affirmed: In action for damages stemming from alleged failure by title company to discover and properly resolve second mortgage on property at time of closing, trial court properly found in favor of title company where company paid off second mortgage per its policy, and plaintiff claim that she could not get loan to improve property and save it from court-ordered demolition was not proven where plaintiff took no steps to attempt to secure loans to improve property. Gordon, J.

No. 2017 IL App (1st) 161765  Wade v. Stewart Title Guaranty Co.  Filed 6-30-17 (TJJ)


The instant appeal arises from a breach of contract dispute regarding a title insurance policy for a multiunit residential building in Chicago, Illinois. Plaintiff, Josephine Wade, the purchaser of the property, filed suit against defendant, Stewart Title Guaranty  Company, alleging that defendant failed to timely remove defects on the property’s title. Plaintiff claimed that defendant’s delay in curing the title defects resulted in the demolition of the property because plaintiff was unable to obtain a loan to rehabilitate  the property to comply with the City of Chicago’s building code. Following a bench trial, the trial court found in favor of defendant, finding that defendant did not breach any duties it owed to plaintiff under the policy. Plaintiff appeals the judgment entered  by the trial court. We affirm.

6. Homeowners' Insurance: Affirmed: In case where pro se homeowner sought relief from Department of Insurance when insurance company cancelled homeowners' policy after property was foreclosed, trial court properly dismissed homeowner's claim in case where homeowner failed to exhaust administrative remedies by failing to seek reconsideration of hearing officer's decision denying his claim. Gordon, J. (Lampkin, J., sp. concurring).

No. 2017 IL App (1st) 162033  Catledge v. Dowling  Filed 6-30-17 (TJJ)


Pro se plaintiff, Lee Catledge, filed a complaint in the trial court, seeking administrative review of an order of the acting director of the Illinois Department of Insurance upholding the cancellation of plaintiff’s homeowners insurance policy. Defendants, the  Illinois Department of Insurance and Anne Melissa Dowling, its acting director, filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure, claiming that the trial court did not have jurisdiction to review  the administrative order, since plaintiff did not first exhaust his administrative remedies where he failed to request rehearing before filing his complaint in the trial court. The trial court granted defendants’ motion, and plaintiff appeals. For the following  reasons, we affirm.

7. Insurance Coverage: Affirmed: In a dispute between two insurance companies, wherein one insured the second against negligent placement of insurance, failure of second company to "unambiguously report" claim to insurer within time limits in policy resulted in a lack of cocerage, and trial court judgment in favor of insurer affirmed. Neville, J.

No. 2017 IL App (1st) 162116  James River Insurance Co. v. TimCal, Inc.  Filed 6-30-17 (TJJ)


This case involves an insurer's duty to defend or indemnify an insurance agent for negligent placement of insurance coverage that allegedly caused another insurer to incur damages. In July 2012, TimCal, Inc., an insurance agent affiliated with Geico Direct  Representatives, received from Fidelity National Property & Casualty Insurance Company a letter, charging TimCal with breach of its duties as an insurance agent and informing TimCal that Fidelity would seek to recover damages. TimCal did not inform  its professional liability insurer, James River Insurance Company, about the claim until April 2013. James River filed a complaint against TimCal and Fidelity, seeking a judgment declaring that it had no duty to defend or indemnify TimCal because TimCal  failed to provide timely notice of Fidelity’s claim to James River. The circuit court granted James River’s motion for summary judgment. We find no ambiguity in the pertinent policy terms, and the circuit court correctly applied the policy to the facts in this  case. We affirm the circuit court’s judgment in favor of James River.

11 Appellate Cases Posted 6-29-17 

1. Criminal Law: Affirmed: Trial court properly excluded at trial for sex assault claim by defendant that complainant had chlamydia and, after alleged assault, defendant did not, as such did not mean in and of itself that defendant did not have sexual contact with complainant, and evidence would have violated rape shield statute; consequently, post-conviction claim for relief based on such properly dismissed. McBride, J.

No. 2017 IL App (1st) 150070  People v. Lewis  Filed 6-29-17 (TJJ)


Defendant, Barron Lewis, was found guilty of aggravated criminal sexual assault in 2010, and sentenced to 15 years imprisonment. In this appeal, defendant challenges the summary dismissal of his petition for relief under the Post-Conviction Hearing Act  (Act) (725 ILCS 5/122- 1 et seq. (West 2014)). Defendant maintains that he presented an arguable claim of ineffective assistance of counsel based on counsel's failure to investigate his negative chlamydia test results, and to present that evidence to the trial  court in support of his contention that the victim's positive chlamydia test results should have been admitted.

2. Real Estate Property Tax: Affirmed: Property Tax Appeal Board decision raising valuation of petitioner's property affirmed, where Board determination that petitioner's income approach inflated expense deductions, took deductions not typical for particular market, and used a less well-supported CAP rate claim than that presented by other witnesses was not against the manifest weight of the evidence. McBride, J.

No. 2017 IL App (1st) 151998  West Loop Associates, LLC v. Property Tax Appeal Board  Filed 6-29-17 (TJJ)


Petitioner West Loop Associates, Inc. (West Loop), seeks review of three final administrative decisions by respondent Property Tax Appeal Board (PTAB) to increase the valuation of commercial property located at 550 West Jackson Boulevard in Chicago  from $70.4 million to $73.8 million, rather than reducing it as West Loop sought to $58.0 million. West Loop’s separate actions with PTAB for the tax years 2009, 2010, and 2011 were consolidated into a single administrative hearing, and the three  subsequent appeals to this court, Nos. 1-15- 1998, 1-15-1999, and 1-15-2000 have also been consolidated.

3. Wrongful Death/Contempt of Court: Reversed and remanded: In contempt action relating to claim that alleged contemnor lied to court in connection with his marital status to decedent in connection with wrongful death action, trial court erred in refusing alleged contemnor's request for substitution of judge, and verdict of contempt reversed. Gordon, J.

No. 2017 IL App (1st) 152454  Bangaly v. Bagianni  Filed 6-23-17 (TJJ)


The instant appeal concerns a criminal contempt finding arising out of wrongful death litigation in which the contemnor, Bangaly Sylla,1 was involved as the administrator of the decedent’s estate. In connection with that case, Sylla, as administrator of decedent Hawa Sissoko’s estate, filed an affidavit of heirship averring that Sissoko had never been married and also submitted answers to interrogatories stating the same. However, shortly before trial, the defendants in that action discovered that Sissoko  may have, in fact, been married to a New York cabdriver named Noumouke Keita. The trial court appointed a third prosecutor, who proceeded with the contempt process and took the case to trial. After a jury trial, the jury found Sylla to be in indirect  criminal contempt. After hearing factors in aggravation and mitigation, the trial court sentenced him to six years in the Illinois Department of Corrections (IDOC). On appeal, Sylla raises a number of issues concerning the propriety of the indirect criminal contempt proceedings. We find that the trial court erred in denying Sylla’s motion for substitution of judge and, accordingly, reverse and remand for a new trial before a different trial judge.

4. Insurance Coverage: Reversed and remanded: Failure of insured to request arbitration within two years of accident in connection with underinsured claim meant that insurer was not obligated to cover damages or injuries, as prior request for arbitration was not "unequivocal," but was deemed conditioned upon outcome of suit against other motorist, and thus outside terms of policy. Harris, J.

No. 2017 IL App (1st) 162308  Willis v. United Equitable Insurance Co.  Filed 6-29-17 (TJJ)


Defendant, United Equitable Insurance Company (UEIC), appeals the order of the circuit court granting summary judgment in favor of plaintiffs, Valentina Willis and Kathy Dobson Willis, on their declaratory judgment claim seeking coverage under  UEIC’s policy. On appeal, UEIC contends that the court erred in granting summary judgment because the clear terms of the policy require plaintiffs to both unequivocally demand arbitration and appoint an arbitrator within two years of the accident, which  plaintiffs did not do. For the following reasons, we reverse and remand for further proceedings.

5. Public Employees/Retirement Health Benefits: Affirmed in part, reversed in part, and remanded: Some City of Chicago retirees have a right to healthcare premiums to be paid by the applicable pension plan and governed by the state constitutional pension protection plan. Some don't. Simon, J.

No. 2017 IL App (1st) 162356  Underwood v. City of Chicago  Filed 6-29-17 (TJJ)


This case is back before the court following another round of rulings by the circuit court concerning plaintiffs’ rights to healthcare coverage. Plaintiffs are multiple categories of City of Chicago retirees who have participated in the City’s medical benefits plan and received some level of healthcare coverage from the City over the years. The City has undertaken to eliminate the healthcare benefits that many of the plaintiffs previously enjoyed; while the plaintiffs have fought to retain the benefits under a  number of legal and equitable principles. The circuit court largely ruled in favor of the City and dismissed most of the plaintiffs’ claims. We affirm in part, reverse in part, and remand the case for further proceedings.

6. Criminal Law: Affirmed: Trial court incorrectly instructed jury with respect to offense of drug-induced homicide on issue of whether delivery of drugs by defendant to decedent "contributed" to death, rather than caused it, but error not found, as defendant's claim that other drugs could have caused death was "speculative," and defendant proved guilty beyond a reasonable doubt. McLaren, J.

No. 2017 IL App (2d) 141143  People v. Nere  Filed 6-29-17 (TJJ)


After a jury trial, defendant, Jennifer N. Nere, was convicted of drug-induced homicide (720 ILCS 5/9-3.3(a) (West 2012)) and sentenced to nine years’ imprisonment. On appeal, she argues that (1) the trial court erred in giving several improper jury  instructions and refusing other instructions and (2) she was not proved guilty beyond a reasonable doubt. We affirm.

7. Dead Man's Act: Affirmed: Trial court erred in permitting plaintiff to testify as to her claim that accident was fault of by then deceased other driver, but error was harmless in light of other testimony not covered by Dead Man's Act which tended to establish deceased driver's fault in connection with accident. Hutchinson, J.

No. 2017 IL App (2d) 160037  State Farm Mutual Automobile Insurance Co. v. Plough  Filed 6-29-17 (TJJ)


This appeal follows a small-claims subrogation trial and raises questions about the application of the Dead-Man’s Act (Act) (735 ILCS 5/8-201 (West 2014)). We affirm the judgment of the trial court.

8. Criminal Law: Reversed: Evidence failed to prove father of child abduction by a non-custodial parent where evidence showed that mother had initially consented to defendant's removing child from home, but never thereafter withdrew that consent, or communicated it to defendant. Schostok, J.

No. 2017 IL App (2d) 160334  People v. Cole  Filed 6-29-17 (TJJ)


Defendant, Michael T. Cole, was found guilty of one count of child abduction by a noncustodial parent (720 ILCS 5/10-5(b)(3) (West 2014)). He argues that the State failed to present sufficient evidence that he took the child without the mother’s consent.  We agree, and thus we reverse his conviction.

9. Dead Man's Act: Affirmed: Trial court properly granted summary judgment in slip-and-fall personal injury case, where circumstances showed that defendant, subsequently deceased, was only other person present when accident giving rise to injuries occurred, thus barring plaintiff's testimony under Dead Man's Act. Schostok, J.

No. 2017 IL App (2d) 160801  Spencer v. Wayne  Filed 6-29-17 (TJJ)


Plaintiff, Arlethia Spencer, filed a complaint in the circuit court of Lake County against Mona Strenger, seeking recovery for personal injuries that plaintiff suffered when she allegedly slipped on a mat and fell while exiting a vehicle in defendant’s garage.  Strenger died during the pendency of the lawsuit, and the trial court appointed defendant, Gail Strenger Wayne, as her special representative. Wayne successfully moved for summary judgment, contending that plaintiff could not establish Strenger’s  negligence without testimony that would be inadmissible under the Dead-Man’s Act (Act) (735 ILCS 5/8-201 (West 2014)) at trial. Following the denial of her motion for reconsideration, plaintiff timely appeals, arguing that the trial court misapplied the  Act. We affirm.

10. Criminal Law: Affirmed in part, vacated in part, and remanded: In case where defendant was found guilty of domestic battery after trial, and at post-trial motions, trial counsel claimed that she was ineffective, failure of trial counsel to zealously argue how she was ineffective required remandment and appointment of different counsel to represent defendant. Certain fines and fees vacated. Carter, J.

No. 2017 IL App (3d) 140921  People v. Brown  Filed 6-29-17 (TJJ)


Defendant, Ray A. Brown, Jr., appeals following his conviction for domestic battery. He argues that his counsel rendered constitutionally ineffective assistance when she requested a jury instruction on self-defense but presented in closing argument a theory  of the case inconsistent with such an instruction. Alternatively, defendant argues that counsel was constitutionally ineffective in that she proceeded under an actual conflict of interest in posttrial proceedings, where the only issue she raised was her own  ineffectiveness at trial. Finally, defendant contends that a number of monetary assessments were imposed by the circuit clerk without authority, and he requests that this court vacate those assessments. We affirm in part, vacate in part, and remand with  instructions.

11. Criminal Law: Reversed and remanded: Claim by 17-year-old defendant, raised for first time on appeal of denial of leave to file successive post-conviction petition, that 70-year sentence for murder was a prohibited de facto life sentence, could not be made for first time on appeal, but trial court erred in denying leave to file successive post-conviction petition based on actual innocence. Turner, J.

No. 2017 IL App (4th) 150407  People v. Merriweather  Filed 6-29-17 (TJJ)


In February 2006, a jury found defendant, Byron J. Merriweather, guilty of first degree murder. In May 2006, the trial court sentenced him to 70 years in prison. On direct appeal, this court affirmed his conviction. In December 2008, defendant filed a pro se postconviction petition, which the trial court dismissed as frivolous and patently without merit. This court affirmed. In February 2013, defendant filed a pro se motion for leave to file a successive postconviction petition, which the trial court denied in  March 2015. On appeal, defendant argues (1) this court should vacate his de facto life sentence and remand for resentencing and (2) the trial court erred in denying him leave to file a successive postconviction petition. We vacate the trial court’s judgment  and remand with directions.

8 Appellate Cases Posted 6-28-17

1. Labor Law: Public Employee Unions: Confirmed: Persons holding positions as Executive I, Executive II, Drivers Facility Manager I and II are not public employees pursuant to the Public Labor Relations Act, 5 ILCS 315/3(n).  Pope, J.

No. 2017 IL App (4th) 160347    Service Employees International Union v. The Illinois Labor Relations Board   Filed 6-28-17 (MGB)


This matter concerns consolidated Petitions by the Union and the Secretary of State seeking to clarify whether the above noted employees are public employees, and thus members of the Collective Bargaining Unit. The Administrative Law Judge found that they were not in her recommended Order and the Labor Relations Board agreed.  The Statute (amended during the pendency of the Unions initial Peitition) specifically excludes Executives I and higher, and the the DFM's are excluded as a person whose position authorizes direct or indirect input into government decision-making issues where there is room for principled disagreement on goals or their implementation.

2. Criminal Law: Post Conviction: Trial Court Ruling Vacated and Remanded with Directions: Defendant may not raise unconstitutional as applied challenge to his sentence for the first time on appeal, following a trial court's denial of a postconviction petition that did not raise the issue. Where trial court did not address defendant's motion to supplement a Petition For Leave to File Successive Postconviction Petition with an additional affidavit, the matter shall be remanded so that the trial court may rule on the amendment, and then the petition For Leave to File Successive Petition for Postconviction Relief. Turner, J.

No. 2017 IL App (4th) 150407    People v. Merriweather   Filed 6-28-17 (MGB)


 A jury found defendant, Byron J. Merriweather, who was 17 at the time of the crime, guilty of first degree murder and the trial court sentenced him to 70 years in prison. On direct appeal, this court affirmed his conviction. In December 2008, defendant filed a pro se postconviction petition, which the trial court dismissed as frivolous and patently without merit. This court affirmed. In February 2013, defendant filed a pro se motion for leave to file a successive postconviction petition, which the trial court denied in March 2015.  Defendant's Pro se petition alleged new evidence of innocence. On Appeal from the denial, he also raised the issue that his 70 year sentence was a de facto license and the statute under which he was sentenced was unconstitutional as applied. Our Supreme Court has found the unconstitutional as applied rule regarding youthful offenders promulgated by Millerv v Alabama was a new substantive rule for which defendants whose convictions or final may seek to benefit off through appropriate collateral proceedings. In this case, that appropriate collateral proceeding is a successive postconviction petition. Thus, to raise his claim through a successive postconviction petition, defendant must obtain leave from the trial court. 725 ILCS 5/122-1(f) (West 2016). We note the arguments defendant has advanced for the first time on appeal may well convince the trial court to grant defendant such leave. A successive postconviction petition may only be filed if leave of court is granted.  

3.    Probate: Renunciation of Wills: Reversed and Remanded: Section 2-8 of the Probate Act provides that the mere filing of a renunciation of  a Will by the testator's surviving spouse is the Operative act effectuating the renunciation. No judicial approval is required.  Where the renunciation is complete prior to the surviving spouse's death, the death does not undo or abate it. Trust had standing to pursue surviving spouse's right to receive the proceeds of wife's estate arising out of the completed renunciation.  Hudson, J.

No. 2017 IL App (2d) 160889 In re Estate of Scherr    Filed 06-28-17 (MGB)



Husband filed Last Will and Testament of Wife, which names only wife's children from prior marriage as  legatees. Husband's daughter was appointed executor, the named executors having predeceased wife. Husband filed renunciation of will, which was served upon counsel for wife's children (respondents) only after husband died. Trial court sustained respondents' objection to the renunciation. The Appellate Court concluded the pronunciation was complete upon filing by husband, was not undone or abated by his death, and that his daughter as trustee of the trust that was assigned his interest in wife's estate prior to his death, and standing to pursue the proceeds arising out of the renunciation. The order of the Circuit Court sustaining the objection to husband's renunciation is reversed, and the matter remanded for further proceedings consistent with the opinion.

4. Criminal Law: Affirmed: Trial court did not improperly fail to follow up on Zehr question to one juror; store surveillance video properly admitted into evidence, but detective testimony regarding what was depicted on video error in light of trial court failure to conduct hearing regarding detective's proffered testimony outside presence of jury, but admission was harmless; and evidence regarding DNA examined to six loci, rather than "usual" 13 not erroneous. Lampkin, J. (Hall, J., sp. concurring).

No. 2017 IL App (1st) 142197  People v. Brown  Filed 6-23-17 (TJJ)

Defendant Daniel Brown was found guilty by a jury of first degree murder, with a finding that he personally discharged the firearm that caused the victim’s death. Defendant was sentenced to prison terms of 45 years for murder  and 45 years for personally discharging the firearm that caused the death, to be served consecutively. On appeal, he contends (1) the trial court committed reversible error during voir dire by failing to inquire when a juror  indicated a lack of understanding concerning a fundamental principle about the burden of proof; (2) the trial court erred when it admitted a surveillance recording without adequate foundation and permitted a detective to offer impermissible lay opinion identification testimony concerning the recording, and defense counsel was ineffective by failing to object to this evidence; (3) the trial court erred by admitting irrelevant and highly prejudicial DNA  evidence, the State’s closing argument concerning the DNA evidence was misleading, and defense counsel was ineffective for failing to object to the DNA evidence; (4) the statutory firearm sentencing enhancement is  unconstitutionally vague, and the trial court imposed an arbitrary and excessive sentence; and (5) the mittimus should be corrected to reflect one murder conviction and a 90-year prison sentence. Affirmed.

5. Property Tax: Affirmed in part, reversed in part, and remanded: Trial court grant of summary judgment to state Department of Revenue in connection with tax dispute arising from company's use and storage of medical machines affirmed in part and reversed in part, as some "units" deemed subject to tax were in fact not subject to a "temporary storage exemption," but company entitled to a credit on numerous machines due to depreciation and use of machines in other states. Pucinski, J.

No. 2017 IL App (1st) 152817  Shared Imaging, LLC v. Hamer  Filed 6-28-17 (TJJ)

Plaintiff, Shared Imaging, LLC (Shared Imaging), instituted this action pursuant to the State Officers and Employees Money Disposition Act (30 ILCS 230/1 et seq. (West 2012)), seeking review of the Department of Revenue’s  (Department) determination that Shared Imaging owed $807,544.00 in back taxes, interest, and penalties under the Use Tax Act (Act) (35 ILCS 105/3-10 (West 2008)) for the period of January 1, 2008, through April 30, 2009  (the Period). The parties filed cross-motions for partial summary judgment, and after a hearing, the trial court entered judgment against Shared Imaging and in favor of the Department. Affirmed in part, reversed in part, and remanded.

6. Freedom of Information Act: Affirmed: Trial court properly granted summary judgment to plaintiff seeking by FOIA contracts relating to entertainment venues owned by village, and village claim on appeal that certain financial aspects of contracts ought to be permitted to be redacted denied on appeal. Neville, J.

No. 2017 IL App (1st) 161957  Better Government Ass'n v. Village of Rosemont  Filed 6-28-17 (TJJ)

Better Government Association (BGA) made a request to see some contracts for use of entertainment venues owned by the Village of Rosemont. Rosemont produced the requested contracts, but it redacted from the contracts the  rent and financial incentives, such as the distribution of revenue from food concessions. BGA filed a complaint under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)), seeking an order requiring  Rosemont to disclose the redacted portions of the contracts. The circuit court granted BGA’s motion for summary judgment on the complaint. Rosemont appeals from the order requiring disclosure of the redacted terms of the  contracts. We hold that FOIA does not exempt from disclosure the rent Rosemont charged and the negotiated financial incentives Rosemont provided to the persons who sought to use Rosemont’s facilities. Rosemont lacked  authority to exempt from disclosure documents that FOIA required Rosemont to disclose. Accordingly, we affirm the trial court’s judgment.

7. Condominium Law: Reversed and remanded: Trial court erred in dismissing condominium association complaint relating to unpaid assessments on ground that condo board had not authorized suit at open meeting, where such was done prior to dismissal, and trial court erred in ruling that dismissal was with prejudice. Lavin, J.

No. 2017 IL App (1st) 162072  Lake Point Tower Condominium Assocation v. Waller  Filed 6-28-17 (TJJ)

This appeal arises from a forcible entry and retainer action filed by plaintiff Lake Point Tower Association (the Association) against defendants Diane Waller and all unknown occupants to obtain possession of Waller's  condominium located at 505 North Lake Shore Drive, Unit 507, in Chicago (the Unit). The Association also sought $2,856.89 in unpaid common expenses and related costs. The trial court dismissed the complaint with  prejudice, finding that the Association's board (the Board) had failed to vote at an open meeting regarding whether to initiate this action. Instead, the Association's attorney had commenced this action at the direction of the Association's management company. On appeal, the Association maintains that its method of initiating this action was proper and, alternatively, the trial court should have dismissed the complaint without prejudice and allowed  the Association to file an amended complaint. Specifically, the Association argues that the Board cured any deficiency by voting at an open meeting to pursue this action, albeit after the action had already been filed. We reverse  and remand for further proceedings.

8. Contracts: Affirmed in part and vacated in part: Trial court erred in finding horse owner liable to stable operator where evidence showed that much of funds claimed by plaintiff stable operator had in fact been paid. Zenoff, J.

No. 2017 IL App (2d) 160811  Jill Knowles Enterprises, Inc v. Dunkin  Filed 6-28-17 (TJJ)

Defendant and counterplaintiff, Mary Ann Dunkin, appeals an order of the circuit court of Lake County granting judgment in favor of plaintiff and counterdefendant, Jill Knowles Enterprises, Inc. (JKE), in the amount of  $8,955.98 following a bench trial. JKE cross-appeals an order awarding it $9,392.85 in attorney fees, contending that it was entitled to over $23,000. For the reasons that follow, on Mary Ann’s appeal, we affirm the judgment in  part, reverse it in part, and enter judgment in Mary Ann’s favor and against JKE in the amount of $3,424.66. On JKE’s cross-appeal, we vacate the judgment.

1 Appellate Case Posted 6-07-17

1.   Criminal Law:  Attorney Conflicts of Interest: Affirmed:  A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.. An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.  “Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal.  No Per Se conflict of interest existed where defense counsel withdrew from defendant's case prior to the time that he represented witness who agreed to testify against Defendant as part of a plea agreement. Second Defense counsel not subject to per se conflict where representation of witness ended some 7 months prior to time witness was designated as a witness in Defendant's case.  Where a defendant fails to demonstrate a per se conflict of interest, he must demonstrate that an actual conflict of interest adversely affected his attorney’s performance.  To establish a conflict, the defendant must show “some specific defect in his counsel’s strategy, tactics, or decision making attributable to [a] conflict.” [M]ere speculative or hypothetical conflicts are insufficient to demonstrate an actual conflict of interest. Defendant failed to show actual conflict of interest. Holder White, J.

No. 2017 IL App (4th) 140956  People v. Schutz    Filed 06-07-17 (MGB)


In July 2013, Defendant, Ryan Schutz, hired attorney M. Jane Foster to represent him in an ongoing criminal case. In November 2013, Foster was hired to represent Kristopher Johnson in two unrelated criminal cases. The following month, Foster withdrew from defendant’s case. In February 2014, Johnson, who was still represented by Foster, entered into a plea agreement conditioned upon him testifying against defendant in defendant’s pending case. Defendant’s attorneys at his bench trial, David Rumley and Michael Herzog, had also previously represented Johnson in unrelated matters. Following the bench trial, the trial court found defendant guilty of multiple charges and subsequently sentenced him to 12 years’ imprisonment. Although we find no specific conflict of interest present in this case, our conclusion does not condone counsels’ representations as ideal. As the State conceded at oral argument, this case presents a scenario where “the optics aren’t the best.” In the judicial system, where we seek to avoid even the appearance of impropriety and extol the notion of fairness, cases such as the one before us tarnish that image. Simply stated, it can be inferred from the facts of this case that Foster worked out a deal for one her clients that was to the detriment of another client. The difficulties presented by this case are avoidable. As a better practice, Foster should have informed the trial court that she previously represented defendant and currently represented Johnson, who was now a prosecution witness against defendant. Both Herzog and Rumley should have disclosed their prior representation of Johnson, regardless of the nature or length of the representation. While we do not suspect or intend to suggest any wrongdoing on the part of any of the attorneys involved in this matter, we conclude our proposed solution appropriately places the burden on counsel in light of their ethical obligations in matters before the court.


7 Appellate Cases Posted 6-27-17

1. Criminal Law: Reversed: In prosecution for battery of police officers and paramedics and resisting arrest, State failed to prove beyond a reasonable doubt that defendant acted "knowingly," where State's witnesses described defendant as "irrational," "nervous," "agitated," and was "suffering some type of psychological issue." Hyman, J. (Mason, J., dissenting).

No. 2017 IL App (1st) 142879  People v. Jackson  Filed 6-27-17 (TJJ)


After James Jackson calls 911 for an ambulance, the paramedics arrive to find him “agitated,” “nervous,” “irrational,” and “very uncooperative,” suffering from some type of psychological issue and with an “altered” mental state. The paramedics call for  police assistance. Jackson screams and flails; one officer uses his taser on Jackson, striking him 10 times. Another officer tries to grab Jackson and gets kicked in the shins. Jackson resists being placed in handcuffs. Ultimately, the police subdue him and  place him into the ambulance for transport to the hospital. Jackson is charged and convicted of battery and resisting arrest. Reversed.

2. Criminal Law: Affirmed: Appellate court was without authority to consider claim, made first on appeal, that defendant was entitled to certain credits towards his fines based on pre-sentencing detention, as such was raised for first time on appeal. Mason, J.

No. 2017 IL App (1st) 143274  People v. Grigorov  Filed 6-27-17 (TJJ)


Pursuant to a negotiated guilty plea, defendant George Grigorov1 was convicted of aggravated driving under the influence of alcohol (ADUI) and driving on a revoked or suspended license. He was sentenced to concurrent prison terms of six and three years  with fines and fees. Grigorov now appeals from an order denying his petition for revocation of fines based upon his alleged inability to pay. On appeal, he has abandoned his claim regarding inability to pay, but he contends for the first time that he  should receive presentencing detention credit against his fines and that certain of his fines and fees were erroneously assessed. For the reasons stated below, we grant the requested presentencing detention credit, but find that we lack jurisdiction over Grigorov’s other newly raised claims and therefore affirm the denial of his petition.

3. Criminal Law: Affirmed: Trial court did not fail to conduct a meaningful inquiry when juror allegedly equivocated during the polling of the jury where juror's response did not indicate any uncertainty regardng juror's verdict; prosecution did not violate discovery rules by failing to tender statements by defendant regarding his name and date of birth, as such had essentially been tendered; and failure to give IPI instruction no. 3.11 regarding impeachment was not error. Hyman, J.

No. 2017 IL App (1st) 143779  People v. Miller  Filed 6-27-17 (TJJ)


Defendant Melvin Miller was convicted by a jury of delivery of a controlled substance and sentenced to 12 years’ incarceration. He argues on appeal that (i) the trial court failed to “conduct a meaningful inquiry” after a juror equivocated while answering a  question posed during the jury polling after the guilty verdict, (ii) the prosecution failed to tender Miller’s statement to police officers giving his name and date of birth, and (iii) the trial court erroneously refused his tendered jury instruction regarding prior  inconsistent statements. Miller requests reversal of his conviction based on each of these alleged errors. Affirmed.

4. Criminal Law: Appeal dismissed: Defendant could not claim, for first time on appeal of denial of motion for pre-trial detention credit, that he was not given proper financial credit toward fees and fines based on pre-trial detention, where such was not complained of within 30 days of plea of guilty and sentencing. Mason, J.

No. 2017 IL App (1st) 143800  People v. Griffin  Filed 6-27-17 (TJJ)


Pursuant to 2014 guilty pleas, defendant Joseph Griffin was convicted of burglary (in case No. 13 CR 12564) and unlawful use of a weapon by a felon (in case No. 12 CR 13428) and sentenced to concurrent prison terms of six and five years, respectively,  with fines and fees. More than 30 days after sentencing in both cases, Griffin filed a pro se motion to correct the mittimus to reflect a different custody date for purposes of calculating presentence detention credit. On appeal from the denial of that motion,  Griffin abandoned his claim regarding the date he was taken into custody but contends for the first time that certain fines and fees were erroneously assessed and that he is entitled to presentencing detention credit against his remaining assessments. We find  that we may not reach the merits of his claims, since Griffin failed to file a motion pursuant to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) within 30 days of sentencing and, in any event, the trial court’s denial of his motion was not a final and appealable order. Accordingly, we dismiss the appeal.

5. Criminal Law: Affirmed: Trial court did not abandon its role of neutral arbiter by requesting to see particular evidence referred to by testimony but not introduced into evidence, where court did not act as an advocate, but only sought to see the evidence despite State's failure to seek to present it as evidence initially. Hyman, J.

No. 2017 IL App (1st) 150091  People v. Evans  Filed 6-27-17 (TJJ)


After a bench trial, defendant Keywani Evans was convicted of one count of unlawful possession of a weapon by a felon and sentenced to four years’ imprisonment. Evans appeals his conviction, arguing that he was denied a fair trial when the trial court  asked the State to present more evidence after it had rested both its case-in-chief and its rebuttal case. In affirming the judgment of the trial court, we hold that the trial court did not abandon its role as neutral arbiter and assume the role of prosecutor by  requesting to see evidence that the State did not produce in its case-in-chief.

6. Criminal Law: Reversed and remanded: State failed to present adequate foundation to prove (and to permit trial court to admit) Facebook post that purported to be an admission by defendant that he had just shot the decedent, where State did not present evidence to attribute the post to defendant. Burke, J.

No. 2017 IL App (2d) 140917  People v. Kent  Filed 6-27-17 (TJJ)


In the direct appeal of his first-degree murder conviction, defendant, Lorenzo Kent, Jr., argues that (1) he was not proved guilty beyond a reasonable doubt, because the State’s witnesses were not credible; (2) the trial court erred in admitting a Facebook  post without sufficient authentication; and (3) the court erred in admitting the unauthenticated, computergenerated records of a phone allegedly used by defendant and in allowing the State to use inadmissible hearsay evidence of the victim’s phone number  to show that defendant called him repeatedly on the date of the offense. We reverse and remand.

7. Domestic Relations: Affirmed in part, vacated in part, and remanded: Trial court ruling that husband was "voluntarily underemployed" and imputing certain income to him that thus reduced wife's maintenance payments, was proper, in light of husband's failure to make serious efforts at finding work. Birkett, J.

No. 2017 IL App (2d) 160737  In re Marriage of Ruvola  Filed 6-27-17 (TJJ)


Petitioner, Leonard A. Ruvola, raises various challenges to the trial court’s judgment dissolving his marriage to respondent, Michelle Ruvola. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

8. Negligence: Affirmed: Trial court properly granted summary judgment to defendants in personal injury action stemming from automobile accident, in case where plaintiff had filed for bankruptcy prior to accident and failed to list cause of action as an asset in bankruptcy court prior to discharge in bankruptcy court, thus implicating doctrine of judicial estoppel preventing plaintiff from succeeding on accident claim. Holdridge, J.

No. 2017 IL App (3d) 150157  Barnes v. Lolling  Filed 6-27-17 (TJJ)


Plaintiff Jerry L. Barnes, a former bankruptcy debtor, sued defendants Daniel R. Lolling (Lolling) and his employer, United Contractors Midwest, Inc. (United Contractors), for personal injuries Barnes allegedly sustained during an automobile accident. The  accident took place on October 7, 2011, after Barnes had filed her Chapter 13 bankruptcy petition and while the bankruptcy proceeding was pending. Barnes did not disclose her potential cause of action against the defendants to the bankruptcy trustee  or schedule the cause of action as an asset of the bankruptcy estate. Barnes filed the instant personal injury claim on October 7, 2013, two years after the accident and approximately five months after the bankruptcy court had discharged Barnes’s debts and  closed the bankruptcy case. The defendants moved for summary judgment, arguing that: (1) Barnes’s personal injury claim was barred under the doctrine of judicial estoppel because Barnes failed to disclose the claim during the bankruptcy proceedings;  and (2) Barnes lacked standing to sue because the personal injury action accrued while the bankruptcy case was pending and was therefore the property of the bankruptcy estate. The trial court ruled that the elements of judicial estoppel had been met and  granted summary judgment for the defendants on that basis. This appeal followed.

3 Appellate Cases Posted 6-26-17

1. Tort Immunity/Statute of Limitations: Reversed and remanded: One-year statute of limitations in Tort Immunity Act did not bar action for wrongful demolition of building and trial court ruling dismissing plaintiff's action reversed. ikva, J.

No. 2017 IL App (1st) 160195  Madison v. The City of Chicago  Filed 6-26-17 (TJJ)


We are asked in this appeal to consider whether the one-year limitations period in the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/1-101 et seq. (West 2010)) bars the plaintiff’s claim for  wrongful demolition. We hold that it does not and reverse the trial court’s dismissal of that claim on statute of limitations grounds. We affirm the dismissal of plaintiff’s other claims.

2. Negligence: Affirmed: Trial court properly granted summary judgment to defendant general contractor in connection with personal injuries suffered at a construction site at which plaintiff worked for a subcontractor, where particular agreements between defendant general contractor and others showed that contractor had insufficient supervisory control as to the manner in which any work was performed at site by various subcontractors. Connors, J.

No. 2017 IL App (1st) 162320  LePretre v. Lend Lease Construction, Inc.  Filed 6-26-17 (TJJ)


Plaintiff William M. LePretre brought a cause of action against Lend Lease (US) Construction, Inc. (Lend Lease) and other defendants for injuries he allegedly sustained while working at a construction site at 515 North Clark Street in Chicago. Lend Lease  filed a motion for summary judgment, and the trial court granted it, finding that Lend Lease owed no duty to plaintiff under which it could be subject to vicarious or direct liability. The trial court also denied plaintiff’s motion to reconsider, and plaintiff now appeals. We affirm.

3. Criminal Law: Affirmed: Sentence of 20 years' imprisonment for residential burglary was not an abuse of discretion in light of defendant's criminal history, and was not manifestly disproportionate to the offense. Goldenhersh, J.

No. 2017 IL App (5th) 140427  People v. Etherton  Filed 6-26-17 (TJJ)


Defendant, Randy Etherton, appeals from a final judgment of conviction of a single count of residential burglary, a Class 1 felony. He was sentenced as a Class X offender due to his prior criminal convictions, which carries a sentencing range of 6 to 30  years. Defendant was sentenced to 20 years in the Illinois Department of Corrections and was ordered to serve 3 years mandatory supervised release.

5 Appellate Cases Posted 6-23-17

1. Criminal Law: Reversed and remanded: Trial court erred in appointing same assistant public defender to represent defendant in second post-conviction proceedings, where same lawyer had previously represented defendant in earlier post-conviction proceedings and was deemed by appellate court to have provided unreasonable assistance of counsel in those first proceedings. Gordon, J.

No. 2017 IL App (1st) 150355  People v. Schlosser  Filed 6-23-17 (TJJ)


Defendant John Schlosser was convicted, after a bench trial, of involuntary manslaughter, two counts of aggravated battery and two counts of home invasion and sentenced to a total of 22 years with the Illinois Department of Corrections (IDOC). On direct  appeal, this court vacated his convictions for involuntary manslaughter, as well as one count of aggravated battery and one count of home invasion, but affirmed his remaining convictions. People v. Schlosser, No. 1-06-1832 (2007) (unpublished order under  Supreme Court Rule 23). Since the vacated sentences ran concurrently to sentence which were affirmed, the aggregate sentence did not change and appellate counsel did not seek a remand for resentencing. On appeal from the second-stage dismissal, this court found that postconviction counsel’s performance was unreasonable and failed to comply with the duties imposed by Rule 651(c). People v. Schlosser, 2012 IL App (1st) 092523, ¶ 26. On remand, the trial court appointed the same counsel to  represent defendant, and the trial court dismissed the petition again at the second stage. On appeal, defendant argues that he is entitled to have his case remanded for the appointment of new postconviction counsel, since he was represented on remand by the  same counsel whose representation was already deemed unreasonable in this case. For the following reasons, we agree and we remand to allow the appointment of new counsel and further second-stage consideration.

2. Mortgage Foreclosure: Affirmed: Mortgagor had no standing to contest provision in bank notice relating to scheduled judicial sale that persons seekeing to attend sale would be admitted into bank building only after presenting valid governmental identification such as a driver's license, where defendant mortgagor had no information that persons without such identification (such as illegal immigrants otherwise entitled to purchase real estate) were refused admittance to sale. Cunningham, J.

No. 2017 IL App (1st) 161466  Deutsche Bank National Trust v. Peters  Filed 6-23-17 (TJJ)


Following a judgment of foreclosure on the property formerly owned by defendant-appellant Rudy Peters, the circuit court of Cook County entered a judgment, confirming the sale of the property in favor of plaintiff-appellee, Deutsche Bank National Trust  (the bank). Peters now appeals from the order confirming the sale. For the following reasons, we affirm the judgment of the circuit court of Cook County.

3. Domestic Relations/Orders of Protection: Reversed and remanded: Provision of Domestic Violence Act prohibited trial court from refusing to hear respondent husband's motion for rehearing on emergency order of protection which granted petitioner wife exclusive possession of home, as Act expressly requires rehearing as to issue of possession of home within 14 days, other than by agreement of parties. Gordon, J.

No. 2017 IL App (1st) 170215  In re Marriage of Padilla  Filed 6-23-17 (TJJ)


The instant appeal arises from the trial court’s continuance of an emergency ex parte order of protection, which awarded petitioner Martha Padilla the physical care and possession of the 12-year-old son of petitioner and respondent Robert Kowalski. The  order of protection had been continued a number of times over 10 months, and the trial court order at issue on appeal ordered that respondent’s motion for rehearing on the order of protection would not be heard until certain other pending motions had first  been decided. Respondent appeals this order, claiming that it constitutes an improper injunction that deprives him of his due process rights. For the reasons that follow, we reverse the trial court’s order and order the trial court to hold a hearing on  respondent’s motion.

4. Criminal Law: Affirmed: Defendant proved guilty of criminal sexual assault and other offenses against his estranged wife over claim that her testimony was riddled with inconsistencies, and trial court error in ordering a sex offender evaluation before sentencing on a non-probationable sex offense did not entitle defendant to a new trial where record evinced that trial court did not rely on evaluation in sentencing defendant. Burke, J. (Hutchinson, J., concurring in part and dissenting in part).

No. 2017 IL App (2d) 141241  People v. Johnson  Filed 6-23-17 (TJJ)


Following a bench trial in the Du Page County circuit court, defendant, Calvin Johnson, was convicted of criminal sexual assault, aggravated domestic battery, aggravated battery, and two counts of unlawful restraint. He was sentenced to six years’  imprisonment for criminal sexual assault and four concurrent terms of 30 months’ probation, including 160 days in jail, for the other offenses. He appeals, contending that (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial court committed plain error by requiring him to submit to a sex-offender evaluation when he was subject to a mandatory prison sentence. We affirm.

5. Medical Negligence: Affirmed in part, vacated in part: "Quality control reports," submitted by nurses in connection with cancer surgery which allegedly involved injury to patient's bladder and subsequent action for medical malpractice, were not deemed to have been generated in connection with any medical investigation, but were properly deemed "incident reporrts," and were not subject to privilege under Medical Studies Act, and trial court order requiring production upheld; "friendly" contempt order vacated. Burke, J.

No. 2017 IL App (2d) 160743  Nielson v. SwedishAmerican Hospital  Filed 6-23-17 (TJJ)


In this interlocutory appeal, defendant, SwedishAmerican Hospital, challenges the trial court’s order finding it in contempt for refusing to produce three quality control reports (QCRs) pertaining to surgery performed on plaintiff Connie F. Nielson. See Ill.  S. Ct. R. 304(b)(5) (eff. Mar. 8, 2016) (order finding entity in contempt and imposing monetary penalty is appealable without special finding). Defendant argues that the QCRs are privileged under sections 8-2101 and 8-2102 of the Code of Civil Procedure  (the Medical Studies Act or the Act), because they were submitted to a quality-assurance committee by the committee’s designees, pursuant to the committee’s standing request for such information whenever a defined “medical occurrence” has taken place.  We affirm in part and vacate in part.

1 Supreme Court Case Posted 6-29-17

1. Criminal Law: Appellate court and circuit court affirmed: Counties Code and common law did not authorize elected State's Attorney to permit State's Attorney investigators to conduct traffic stops, and evidence seized as a result of such a stop properly suppressed by trial court. Freeman, J. (Garman, J., dissenting).

No. 2017 IL 119484  People v. Ringland  Filed 6-29-17 (TJJ)


Defendants, Cara Ringland, Steven Pirro, James Saxen, Steven Harris, and Matthew Flynn, were separately charged with felony drug offenses in the circuit court of La Salle County. In each case, a controlled substance was discovered during a traffic stop.  These traffic stops were conducted by a special investigator appointed by Brian Towne, then State’s Attorney of La Salle County, pursuant to section 3-9005(b) of the Counties Code. The circuit court granted each defendant’s motion to quash arrest and  suppress evidence. The appellate court affirmed, holding that the conduct of the special investigator exceeded the scope of section 3-9005(b). 2015 IL App (3d) 130523. This court allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Jan. 1,  2015)), and we now affirm the judgment of the appellate court.

3 Supreme Court Cases Posted 6-22-17

1. Trusts:  Affirmed in part, Reversed in part:  Our own review of the record discloses nothing to indicate that Lyle’s acceptance of trust property was properly an “election” as understood under the doctrine. Therefore, we hold that the trial court erred in holding that the doctrine of election barred Lyle’s challenge to the Amendment.  Here, the trial court found that Lyle made an election through “acceptance of the benefits conferred by the Trust,” but the court identified no facts suggesting that Lyle’s acceptance of those benefits was an election between inconsistent and alternative claims to trust property. Birkett, J.


No. 2017 IL App (2d) 160690 Centure Bank v. Voga Filed 6-22-2017 (ATH)


Defendant and counterplaintiff, Lyle Voga (Lyle), appeals various rulings of the circuit court of Kendall County in this dispute over a trust established by Lyle’s late father, Leroy Voga (Leroy).  Reversed in part and affirmed in part.

2. Civil Law:  Affirmed:  Good Samaritan Act contains two main requirements for receiving immunity; the medical practitioner (1) must perform the services as described by the statute and (2) not receive a fee or compensation from that source. We find Dr. Pedersen’s and McGinnes’s compensation did not come from the Clinic, and thus they are immune from liability under the Good Samaritan Act. Since we have found both Dr. Pedersen and McGinnes immune from liability under the Good Samaritan Act, the Clinic is immune from liability on plaintiff’s vicarious liability claim. Turner, J.  


No. 2017 IL App (4th) 150847 Carroll v. Community Health Care Clinic, Inc. Filed 6-22-2017

 

In April 2015, plaintiff, David S. Carroll, filed a medical malpractice complaint against defendants, Community Health Care Clinic, Inc. (Clinic), Paul Pedersen, M.D., and Sue McGinnes, APN. In June 2015, the Clinic filed a motion to dismiss plaintiff’s complaint under section 2-619(a)(9) asserting it was immune from liability. The next month, Dr. Pedersen and McGinnes also filed a section 2-619 motion to dismiss, alleging they were both immune from liability under section 30 of the Good Samaritan Act and Dr. Pedersen was also immune under section 54.5(e) of the Medical Practice Act. After hearing, the circuit court granted the motions to dismiss with prejudice finding both doctors and the Clinic immune from liability.  Plaintiff appeals.  

3. Civil Law:  Affirmed:  Special counsel may be appointed where the Attorney General is interested should be limited” to two situations: (1) where the Attorney General is interested as a private individual and (2) where the Attorney General is an actual party to the action. The Attorney General is not individually interested in or a party to the underlying workers’ compensation case, nor is the Attorney General in the position of representing opposing States agencies. Although CMS might disagree as to what argument the Attorney General makes, that disagreement is insufficient to qualify as a conflict of interest such that special counsel should be appointed. We find the Attorney General’s refusal to raise a historically unsuccessful argument falls within this discretion. we agree with the Attorney General that the Supreme Court found the personal assistants were not “full-fledged” State employees in the context of federal first amendment claims. Additionally, we do not think that decision has any bearing on whether a conflict of interest exists such that the Attorney General should be disqualified in this case. It is undisputed the Attorney General has broad discretion in representing the State in litigation where the State is the real party in interest, and her decision to refuse to raise an argument—particularly an argument which has repeatedly failed before the Commission—is within that discretion. Holder White, J


No. 2017 IL App (4th) 160392 Hoffman v. Madigan Filed 6-22-2017

In November 2015, plaintiff Tom L. Tyrrell, in his official capacity as Director of Central Management Services (CMS), filed a complaint for injunctive and declaratory relief. Following Tyrrell’s resignation, Michael Hoffman, in his official capacity as Acting Director of CMS, was substituted as plaintiff. The complaint requested (1) defendant, Lisa Madigan, in her official capacity as Attorney General of the State of Illinois, be enjoined from representing CMS before the Workers’ Compensation Commission (Commission) on cases involving “personal assistants,” based on her refusal to defend CMS’s determination that a personal assistant was not a State employee for purposes of the Workers’ Compensation Act and (2) a special assistant Attorney General be appointed to represent CMS. This appeal follows the trial court’s granting of the Attorney General’s 2-615 motion to dismiss. 

2 Supreme Court Cases Posted 6-15-17

1. Right to Assemble: State constitutional provisions regarding right of assembly are not broader than, but are in "lockstep" with, federal rights emanating from first amendment, but persons charged with violating ordinace relating to times at which Chicago parks were closed forfeited their argument that first amendment was violated, and appellate court ruling overturning circuit court decision that ordinace violated constitutional rights upheld. Garman, J. (Kilbride, J., dissenting).


No. 2017 IL 120350  City of Chicago v. Alexander  Filed 6-15-17 (TJJ)

Plaintiff, the City of Chicago, charged defendants, members of the “Occupy Chicago” movement, with violating chapter VII, section B(2), of the Chicago Park District Code (Chicago Park District Code, ch. VII, § B(2) (amended July 28, 1992)). The circuit court of Cook County dismissed the charges, finding that the ordinance was unconstitutional on its face and as applied to the defendants. The appellate court reversed, holding that the ordinance did not violate the  defendants’ right to assembly under the first amendment of the United States Constitution. On remand from this court’s supervisory order directing it to review defendants’ claim under article I, section 5, of the Illinois Constitution of 1970,  the appellate court again reversed and remanded for further proceedings. 2015 IL App (1st) 122858-B, par. 67. For the reasons that follow, we affirm the judgment of the appellate court.

2. Criminal Law: Circuit court and appellate courts affirmed: In case where multiple defendants were represented by same attorney, post-trial claim of one defendant that she was afforded ineffective assistance of counsel by virtue of conflict of interest stemming from her claim that joint defense of self-defense prevented her from making claim of innocence based on lack of accountability, where evidence showed that such claimed defense was in any event unavailing, conflict would not be found. Burke, J.

No. 2017 IL 120198  People v. Nelson  Filed 6-15-17 (TJJ)

Defendant, Miesha Nelson, and her three codefendants, Carmelita Hall, Tiffany Cox, and Rosalinda Ball, were tried jointly but in severed bench trials for the armed robbery and stabbing death of Morris Wilson. All four defendants were  found guilty. On appeal, defendant contended that she was denied her sixth amendment right to conflict-free counsel where attorneys from the same law firm represented defendant and codefendant Hall and defendant’s attorneys, in making  their choice of defenses, decided to forgo asserting an innocence defense in favor of pursuing a joint defense of self-defense. The appellate court rejected this contention and affirmed defendant’s convictions. 2015 IL App (1st) 132157-U.  For the reasons that follow, we affirm the judgment of the appellate court, but on different grounds.


3 Appellate Cases Posted 6-21-17

1. Negligence/Choice of Law: Affirmed: In Section 2-1401 petition claiming that plaintiff flight attendants had new information regarding choice of law issue as to whether New Zealand law or Illinois law would be applied in action for injuries suffered by flight attendants for a New Zealand airline injured over the Pacific Ocean, trial court properly denied petition, and ruling that New Zealand law would apply upheld. Lavin, J.

No. 2017 IL App (1st) 153645  Tuna v. Airbus  Filed 6-21-17 (TJJ)


This matter arises from injuries sustained by plaintiffs Fuzzy Tuna and Jenaya McKay when an aircraft designed by defendant Airbus, S.A.S., and operated by Qantas Airways, experienced two sudden pitch-down movements on October 7, 2008. Defendant  Northrop Grumman Guidance and Electronics Company, Inc., designed the aircraft’s air data inertial reference unit. Although plaintiffs are flight attendants from New Zealand, the aircraft was over the Pacific Ocean when the incident occurred. Several individuals’ negligence and products liability actions were consolidated in the Circuit Court of Cook County.1 While defendants argued that New Zealand law precluded compensatory damages, defendants did not contest liability. In contrast,  plaintiffs argued that New Zealand law permitted courts outside of New Zealand to award its citizens compensatory damages and that, absent a meaningful difference in the laws of the two jurisdictions, Illinois law applied. Agreeing with defendants’  position, the circuit court entered summary judgment in their favor, albeit with acknowledged equivocation. Eventually, plaintiffs filed a petition to vacate the summary judgment order pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)), arguing that new evidence supported their position that New Zealand law did not preclude compensatory damages in this case. The circuit court denied that petition without an evidentiary hearing. We now affirm the judgment.

2. Civil Procedure: Affirmed: Trial court properly dismissed action as barred by doctrine of res judicata, as trial court ruling in prior action preventing party from filing "derivative claim" in connection with litigation relating to failed real estate development meant that current claim in second action was barred by rule against claim splitting. Fitzgerald Smith, J.

No. 2017 IL App (1st) 160565  Venturella v. Dreyfuss  Filed 6-21-17 (TJJ)


Appellant George Venturella, individually, and derivatively on behalf of Abbey Medco, LLC, appeals from the dismissal pursuant to section 2-619 of the Code of Civil Procedure of his lawsuit against appellee David A. Dreyfuss, M.D. On appeal,  Venturella contends that the circuit court erred in dismissing his derivative claim under the doctrine of res judicata and the rule against claim-splitting because another court in a previous case expressly reserved the claim. Specifically, Venturella does not  argue that the elements of res judicata are not met, but instead claims that his case falls into an exception to res judicata: that the circuit court expressly reserved his right to maintain the second action. For the following reasons, we affirm.

3. Criminal Law/DUI: Affirmed: Trial court properly permitted state trooper in DUI prosecution to offer opinion testimony as to the trooper's belief that defendant had been the person driving the car, as testimony was an obvious inference from the facts presented, and was also admissible to show why the trooper acted as he did in arresting the defendant. Knecht, J.

No. 2017 IL App (4th) 150021  People v. Martin  Filed 6-21-17 (TJJ)


Defendant, Trance N. Martin, appeals his September 2014 conviction of aggravated driving under the influence (DUI) in violation of section 11-501(d)(1)(H) of the Illinois Vehicle Code. On appeal, defendant argues (1) the trial court committed plain error  by admitting improper lay opinion testimony and (2) defense counsel was ineffective for failing to (a) object to Illinois State Police Trooper Tyler Vandeventer’s testimony on improper lay opinion grounds and (b) preserve the relevance objection to Trooper  Vandeventer’s testimony in his posttrial motion to reconsider his sentence. We affirm.

3 Appellate Cases Posted 6-20-17

1. Criminal Law: Affirmed: Insanity acquittee claim that statute requiring him to prove by clear and convincing evidence that he no longer suffers from a mental illness properly denied by trial court, as statutory requirement does not violate due process. Neville, J.

No. 2017 IL App (1st) 153533  People v. Gunderson  Filed 6-20-17 (TJJ)


In 2005, a court found Sean Gunderson, charged with attempted murder, not guilty by reason of insanity. Gunderson petitioned for discharge from the custody of the Department of Human Services (DHS) in 2015. The trial court denied the petition. On  appeal, Gunderson argues that section 5-2-4(g) of the Unified Code of Corrections violates his right to due process, because it requires him to prove by clear and convincing evidence that he no longer suffers from a mental illness. We find the statute
constitutional. Accordingly, we affirm the trial court’s judgment.

2. Mortgage Foreclosure: Affirmed in part, and remanded: Trial court not obligated to hold evidentiary hearing on mortgagee's request for attorneys' fees, as petition clearly evinced entitlement to fees, but mortgagee entitled to further claim for attorneys' fees with respect to fees generated in connection with mortgagor's motion to reconsider certain issues. Hyman, J.

No. 2017 IL App (1st) 160588  3432 West Henderson Building, LLC v. Gizynski  Filed 6-20-17 (TJJ)


The underlying case involved default on a note and mortgage. The issues defendant Wieslaw Gizynski raises pertain to the amount and calculation of the trial court’s award of attorney’s fees1 and interest on the fees. On cross-appeal, 3432 West Henderson  Building, LLC (Henderson Building), contends the trial court erred in denying its motion for leave to file a fee petition regarding Gizynski’s motion to reconsider. Because we find the trial court properly calculated Henderson Building’s attorney’s fees,  including default interest, and was not obligated to hold an evidentiary hearing on the fee request, we affirm the order and its denial of the motion to reconsider. But as to the trial court’s denying Henderson Building’s request to file a fee petition for the time  spent responding to the motion to reconsider, we remand for further consideration as well as consideration of fees incurred in this proceeding.

3. Criminal Law: Affirmed in part, and vacated in part: Defendant found guilty of armed violence and unlwful use of weapon by felon entitled to have UUFF conviction vacated per one act, one crime rule. O'Brien, J.

No. 2017 IL App (3d) 150070  People v. Brown  Filed 6-20-17 (TJJ)


Defendant Dieuseul Brown was convicted after a bench trial of armed violence, unlawful possession of a weapon by a felon, and unlawful possession of a controlled substance. The trial court sentenced him to an 18-year term on the armed violence count  and an 8-year term on the weapon charge and found the unlawful possession of a controlled substance conviction merged with the other judgments. Brown appealed, challenging his sentences on one-act, one-crime principles. We vacate Brown’s conviction  for unlawful possession of a weapon by a felon.

1 Appellate Case Posted 6-19-17

1. Insurance Coverage: Affirmed: Trial court properly ruled that insurance company had no duty to defend under "advertising" provisions of insurance policy, as to lawsuit alleging that insured had engaged in patent violations and "false marking" claims in connection with water valve insured sought to market. Mikva, J.

No. 2017 IL App (1st) 162449  Green4All Energy Solutions, Inc. v. State Farm Fire & Casualty Company  Filed 6-19-17 (TJJ)


The issue presented in this case is whether “State Farm Insurance Company” (State Farm)1 owed its insured, Green4All Energy Solutions, Inc. (Green4All), a duty to defend in an underlying lawsuit filed by Flow Dynamics, LLC (Flow). The underlying  suit was filed February 2015, Green4All tendered its defense of the underlying suit to State Farm in April 2015, and in May 2015, State Farm refused the tender. The underlying case settled in September 2015 and Green4All filed this action against State  Farm, alleging that State Farm breached its insurance contract with Green4All and violated section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2014)) by refusing to defend its insured. The circuit court granted State Farm’s crossmotion for  summary judgment, holding that the underlying complaint failed to allege an advertising injury covered by the insurance policy. For the following reasons, we affirm the judgment of the circuit court.

5 Appellate Cases Posted 6-16-17

1. Appellate Jurisdiction/Sanctions: Appeal dismissed, sanctions awarded: Plaintiff's notice of appeal was filed well beyond thirty days after final judgemnt dismissing his suit against defednants and appellate court was thus without jurisdiction to hear appeal, and rule to show cause issued for pro se appellant to show cause why sanctions should not be imposed for litigant who engaged in "egregious circumstances" in filing numerous frivlous appeals. Gordon, J. (Lampkin, J., specially concurring).

No. 2017 IL App (1st) 152789  Oruta v. Biomat USA, Inc.  Filed 6-16-17 (TJJ)


On January 14, 2013, the trial court dismissed defendant Biomat USA, Inc., with prejudice from the underlying case. Two and a half years later, on September 22, 2015, plaintiff Larry Oruta filed a motion with the trial court seeking to file a “service of summons *** against Biomat USA previously returned.” On September 29, 2015, the trial court denied plaintiff’s motion, stating that: “Biomat USA, Inc. was dismissed with prejudice by Court order on January 14, 2013.” On September 29, 2015, the  same day that the trial court denied plaintiff’s motion, plaintiff filed a notice of appeal. On May 20, 2016, plaintiff filed an “amended” notice. For the following reasons, this instant appeal is dismissed for lack of jurisdiction.

2. Negligence/Premise Liability: Affirmed: Award in favor of wrongful death plaintiff whose decedent fell through a plate glass picture window upheld over claims that the defendant (who remodeled the building) did not have a duty to the decedent, the danger was open and obvious, and amount of damages was not warranted. Reyes, J.

No. 2017 IL App (1st) 153446  Racky v. Belfor USA Group, Inc.  Filed 6-16-17 (TJJ)


Plaintiff Megan Racky, special administrator of the estate of Michael J. Racky, brought this premises liability action against defendant Belfor USA Group, Inc. (Belfor), along with others not parties to this appeal, alleging negligence in the death of her  father Michael Racky, who died as a result of falling through a plate glass window of a property Belfor had been remodeling. Following a bench trial, the trial court found in plaintiff’s favor and awarded damages in the amount of $1.875 million to plaintiff  after finding the decedent to be 25% contributorily negligent. Belfor appeals, arguing that (1) the trial court erred in entering judgment in favor of plaintiff where the evidence failed to establish that it had a duty because (a) it was not a possessor of the  property, (b) the decedent encountered an open and obvious danger, and (c) the window was outside the scope of Belfor’s contract; and (2) the trial court erred in awarding damages on both the survival and wrongful death counts where (a) the evidence did  not establish the decedent experienced conscious pain and suffering and (b) the amount of the damage award falls outside the range of reasonable compensation. For the reasons that follow, we affirm.

3. Medical Negligence: Reversed and remanded: Trial court erred in dismissing medical malpractice action and in failing to give plaintiff an extension of time in which to comply with Section 2-622 with respect to a healthcare practitioner's certification that a cause of action existed, where plaintiff had shown due diligence in seeking counsel to represent her in connection with the death of her husband as a result of alleged medical malpractice. Hall, J.

No. 2017 IL App (1st) 160315  Holloway v. Chicago Heart & Vascular Consultants, Ltd.  Filed 6-16-17 (TJJ)


This appeal involves a wrongful death action based on alleged medical negligence. The action was brought by plaintiff Agnes Holloway as special administrator of the estate of her deceased husband Byron Byars. Plaintiff appeals a circuit court order  dismissing the pro se complaint she brought against defendants Chicago Heart & Vascular Consultants, Ltd., Dr. Anil Ranginani, and Mercy Hospital & Medical Center (collectively "defendants"). The circuit court ultimately granted the motions to dismiss and entered judgment for the defendants. The court determined that the plaintiff's complaint was a nullity and that she did not establish good cause for failing to comply with section 2-622(a)(1) of the Code. The circuit court upheld its ruling upon  reconsideration. This appeal followed. For the reasons set forth below, we reverse and remand for further proceedings.

4. Juvenile Delinquents: Affirmed, certain assessments vacated: Condition of probation that minor not go on University of Illinois campus unless in company of an adult upheld in face of claim that it was overbroad and an unconstitutional ban on travel; certain assessmenrts vacated as deemed imposed by clerk, rather than judge. Steigmann, J.

No. 2017 IL App (4th) 170103  In re Dustyn W.  Filed 6-16-17 (TJJ)


In October 2016, the State charged respondent, Dustyn W. (born May 21, 2004), with armed robbery for taking lighters from a gas station in Urbana, Illinois, while armed with a knife. Following a November 2016 bench trial, the trial court adjudicated  respondent a delinquent minor and ordered him to serve 24 months of probation. One of respondent’s conditions of probation prohibited him from being present on the University of Illinois (University) campus unless granted permission by his probation  officer or accompanied by a parent, guardian, or custodian. Respondent appeals, arguing that the condition of probation excluding him from the University campus was an unconstitutional infringement on his right to travel. We disagree and affirm that  condition of probation. Respondent also requests that we vacate a $50 “Court Finance Fee” and a $5 “Drug Court Program” assessment. We vacate both assessments because they constitute fines that were imposed by the circuit clerk.

5. Workers' Compensation: Circuit court reversed; commission decision reinstated: Ample evidence existed to support conclusion that employee's injuries had "stabilized" to extent that he was able to rejoin workforce and maintain employment, and was thus not entitled to total temporary disability benefits. Holdridge, J.

No. 2017 IL App (3d) 160363WC  Holocker v. Illinois Workers' Compensation Comm'n  Filed 6-16-17 (TJJ)


The claimant, Scott Holocker, filed an application for adjustment of claim under the Workers' Compensation Act, seeking benefits for work-related injuries he sustained on September 11, 2012, while he was working for Komatsu America Corporation  (employer). Following a hearing, an arbitrator found that the claimant was entitled to receive temporary total disability (TTD) benefits from the time he was terminated by the employer until the date of arbitration, a period of 15 and 1/7 weeks. The  arbitrator denied the claimant’s claims for penalties and attorney fees. The claimant and the employer each sought review of the arbitrator’s decision before the Illinois Workers’ Compensation Commission (Commission). The claimant appealed the arbitrator’s calculation of his average weekly wage and the denial of his claims for penalties and attorney fees. The employer appealed the arbitrator’s award of TTD benefits and also appealed the arbitrator’s calculation of the claimant’s average weekly  wage. The Commission unanimously reversed the arbitrator’s award of TTD benefits and its calculation of the claimant’s average weekly wage, and affirmed the arbitrator’s denial of penalties and attorney fees. Commission decision reversed in circuit court; reinstated in appellate court.

6 Appellate Cases Posted 6-15-17

1.    False Claims Act: Damages: Attorney's Fees:   Affirmed in Part, Reversed in Part:    In suit by Relator under the False Claims Act against vendor for failure to collect and pay Illinois Use Tax on internet and phone orders,  Trial Court properly found for Relator and assessed damages acted in reckless disregard and did not make a reasonable and prudent inquiry as to its tax obligations on Internet and telephone sales to Illinois customers. Trial Court properly included  Use Tax remitted by Defendant  after the filing of Suit via amended Sales and Use Tax Returns prior to Judgment in the measure of damages that could be trebled under the Act.  Law Firm which was itself a relator which brought the action under the Act could not be awarded attorneys fees under the Act for the work of its own attorney's.  Ellis, J.


No. 2017 IL App (1st) 152668    People ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc.     Filed 6-15-2017 (MGB)


Relator, Stephen B. Diamond, P.C., formerly Schad, Diamond & Shedden, P.C. (relator), brought this qui tam action, on behalf of the State of Illinois, under the Illinois False Claims Act. 740 ILCS 175/1 et seq. (West 2012). Relator alleged that defendant, My Pillow, Inc. (My Pillow), knowingly failed to collect and remit use taxes on merchandise sold at craft shows in Illinois and on Internet and telephone sales to Illinois customers, as required by State law. After a bench trial, the circuit court found in favor of relator as to the claims regarding Internet and telephone sales. The court awarded relator treble damages and attorney fees totaling $1,383,627. We affirm the judgment of the circuit court of Cook County in favor of relator as to the false claims regarding Internet and telephone sales. We reverse that portion of the attorney-fee award for legal services performed by relator’s own member lawyers; the fees that were awarded for services performed by outside counsel retained by relator shall stand. We remand this matter only for a recalculation of the attorney-fee award consistent with this opinion.

2.    State Contracts: Lack of Budget:  Affirmed:    Suit by various social service organizations seeking payment under contracts with the State of Illinois to provide various human services was properly dismissed on grounds of sovereign immunity and that contacts were expressly subject to legislative appropriations.   Burke, J.


No. 2017 IL App (1st) 170152       Illinois Collaboration on Youth v. Dimas   Filed 6-15-2017 (MGB)


The underlying dispute in this case involves the ongoing state budget impasse between the legislature and the Governor. Plaintiffs are social service organizations that have contracts with different state agencies to provide various human services for the State of Illinois in fiscal year 2016.1 During the fiscal year 2016, plaintiffs did not receive payments on the contracts, despite providing services. The contracts provide that they are subject to legislative appropriations, which were not enacted by the beginning of fiscal year 2016. Plaintiffs filed a complaint seeking payment for their services despite the lack of appropriations, arguing that defendants—Governor Bruce Rauner and officers and heads of various state agencies and departments—were acting beyond the scope of their legal authority, unconstitutionally impairing contractual obligations, denying equal protection of the laws, and depriving them of property  without due process. Defendants moved to dismiss on grounds that the complaint was barred by sovereign immunity and failure to state a valid claim for relief. The Circuit Court of Cook County granted the motion to dismiss. We Affirm.

3.     Violent Juvenile Offender:  Affirmed:    17 year old's  prior juvenile adjudications would have been admissible had he been tried as an adult to elevate the sentence to a Class 2 Felony under the UUW Statute. As such,  respondent was properly adjudicated a Violent Juvenile Offender. VJO Statute is not facially unconstitutional and does not violate the 8th Amendment of the U.S. Constitution, or the the proportionate penalties clause of the Illinois Constitution. McBride, J.


No. 2017 IL App (1st) 170152   In re Dave L.    Filed 6-15-2017 (MGB)


Respondent Dave L., born July 20, 1999, was charged in a petition for adjudication of wardship with two counts of aggravated unlawful use of a weapon (AUUW) based on his possession of a handgun without a firearm owner’s identification (FOID) card and his age. Based on respondent’s previous adjudications of delinquency for armed robbery and AUUW, and that his current offense of AUUW was a Class 2 felony, the State filed notice of its intent to prosecute respondent as a violent juvenile offender (VJO) pursuant to section 5-820 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-820 (West 2014)). After a jury trial in Cook County circuit court, respondent was adjudicated delinquent and subsequently sentenced as a VJO under the Act to a mandatory term of confinement until age 21.  Respondent appeals, arguing that: (1) he was not eligible for sentencing as a VJO under the Act because his AUUW charge would not have been a Class 2 felony if he had been prosecuted as an adult; and (2) the VJO statute violates the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution because it removes the trial court’s discretion in sentencing.

4. Criminal Law:  Affirmed in part, Vacated in part:  Defendant argues his trial counsel was ineffective for failing to object to the State’s use of his post-Miranda statement and for failing to request the proper jury instructions.  Where the defendant fails to invoke the right to silence, Doyle is inapplicable, and testimony about the inconsistency between the two statements may be elicited at trial.  Because we conclude no Doyle violation occurred, trial counsel was not ineffective for failing to object on Doyle violation grounds during either the State’s case-in-chief or closing argument. The uncontradicted evidence established defendant knowingly and intentionally pointed a firearm at his brother at a range of four to five feet and knowingly and intentionally pulled the trigger, discharging the weapon. Defendant was not merely swinging his firearm about or handling it in a reckless manner. We conclude the trial court did not abuse its discretion by denying defendant’s request the jury be instructed on involuntary manslaughter. Defendant had the right to remain silent during the presentence investigation, and invocation of the right cannot be used as an aggravating factor at sentencing. It is clear from the trial court’s remarks this factor weighed heavily in the court’s sentencing decision.  Given the court’s comments, we cannot state with certainty this factor did not lead to a greater sentence. We thus vacate defendant’s sentence and remand for a new sentencing hearing.  Knecht, J.


No. 2017 IL App (4th) 150287 People v. Maggio Filed 6-15-2017 (ATH)


Defendant was convicted after a jury trial of one count of first degree murder and sentenced to 65 years in prison. Defendant appeals his conviction and sentence, arguing his trial counsel was ineffective and the trial court erred by (1) failing to instruct the jury on involuntary manslaughter and (2) considering his refusal to participate in the presentence investigation in aggravation at sentencing.

5. Civil Law:  Affirmed:  The acts or omissions that the plaintiff challenges constituted discretionary acts and policy determinations taken by the City’s public works director (director).  The director testified that the policy regarding the repair, replacement, or removal a slab of concrete was to be undertaken on a case-by-case basis using numerous factors.  He used his discretion to determine which portions of the sidewalks were in need of repair and which portions were not in need of repair.  Regardless of how the City became aware of the deviation—whether by routine maintenance inspection or by actual notice provided by a pedestrian—the City would have retained immunity under section 2-109 of the Act if Ahrens had inspected the defect and exercised his discretion to do nothing, even if that determination could later be viewed as negligent. Steigmann, J.

No. 2017 IL App (4th) 160593 Monson v. The City of Danville Filed 6-15-2017 (ATH)


In December 2013, plaintiff, Barbara Monson, sued defendant, the City of Danville (City), requesting compensation for injuries she sustained as a result of her tripping and falling onto a sidewalk the City maintained.  The trial court granted summary judgment in the City’s favor, finding that the City was immune under sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Act). 

6. Criminal Law:  Affirmed:  A defendant may be found guilty on an accountability theory if the State establishes beyond a reasonable doubt that the defendant shared the criminal intent of the principal or that there was a common design or scheme.  A defendant’s intent may be inferred from the nature of his or her actions and the circumstances surrounding the criminal conduct.  When all the evidence is considered in the light most favorable to the State, it shows that the drug transaction at issue could not have occurred without defendant’s involvement.  Under these circumstances, there was sufficient evidence for any rational trier of fact to find defendant guilty.  The record also shows that the trial court specifically asked defendant whether, after consulting with his attorney, it was his desire to give up his right to a jury trial, and defendant stated on the record it was his desire. Defendant acknowledged that he was not threatened by anyone nor was he promised anything in addition to what the judge told him in order to get him to waive his right to a jury trial.  Thus, the record before us clearly shows that defendant was well aware his case would be decided by a judge rather than a jury.  Goldenhersh, J.

No. 2017 IL App (5th) 140575 People v. Church Filed 6-15-2017 (ATH)


After a stipulated bench trial, the defendant was convicted of unlawful delivery of a controlled substance under an accountability theory and sentenced to three years and six months imprisonment.  The issues raised on appeal are (1) whether defendant was proven guilty of delivery of a controlled substance by accountability beyond a reasonable doubt and (2) whether defendant knowingly and voluntarily waived his right to a jury trial.

4 Appellate Cases Posted 6-14-17 

1.       Criminal Law:  4th Amendment Search: Curtilage:  Good Faith Exception: Affirmed:  Unsecured hallway in apartment corridor outside Defendant's apartment door was within the curtilage of the dwelling and the use of a K-9 to discover the presence of likely narcotics was an impermissible search in violation of the 4th Amendment. In deciding whether the good-faith exception to the exclusionary rule applies in any particular case, a court must determine whether a reasonably well-trained officer would have known that the search in question was illegal in light of all of the circumstances.  Trial Court properly granted Motion to Suppress Evidence.  Carter, J.. Wright, J. dissenting with Opinion. 

No. 2017 IL App (3d) 160457  People v. Bonilla  Filed 06-14-17 (MGB)


Based on tip, police officers utilized a K-9 to search for the presence of drugs in an unlocked, common area,  hallway immediately outside Defendant's apartment, resulting in the issuance of a search warrant that led to the discovery of cannabis.  Considering the level of protection that has been afforded to the home in fourth amendment jurisprudence, especially in light of the decisions in Jardines and Burns, we cannot conclude that a person who lives in an unlocked apartment building is entitled to less fourth amendment protection than a person who lives in a locked apartment building. At the very core of the fourth amendment is the right of a person to retreat into his or her own home and there to be free from unreasonable governmental intrusion. In providing that protection, the fourth amendment does not differentiate as to the type of home involved.  As the trial court noted, to reach the opposite conclusion would be to draw a distinction with an unfair difference. See United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016) (recognizing that to distinguish Jardines based upon the differences between the front porch of a single family home and the closed hallway of an apartment building would be to draw an arbitrary line that would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity. Simply put, at the time of the search in the present case, both the United States Supreme Court and the Illinois Appellate Court had already ruled that a dog sniff of the front door of a residence was a fourth amendment search. . The police officer could not reasonably rely, therefore, on older case law decisions or decisions involving dog sniffs in other contexts to authorize the warrantless dog sniff of the front door of defendant’s residence in the instant case. Nor could the officer reasonably rely on a search warrant that was issued based upon the warrantless police dog sniff of the front door of defendant’s apartment, a practice that had not been specifically authorized by any established precedent. We therefore reject the State's good faith argument in this case.

2.  Insurance Producers: Limitations: Affirmed:  Insured should have reasonably known of of the policy limits of insurance policies upon receipt of the policies or their renewals, both of which unambiguously set forth policy coverage limits. Trial Court properly granted summary judgment  and concluding claims of breach of contract and negligent procurement against insurance agents were not filed within the applicable two year limitations period.  For the purpose of determining when the plaintiffs’ claims accrued, we find plaintiffs knew or should have known of the coverage limits upon receiving the policies. Thus, we affirm the trial court’s grant of summary judgment in favor of defendants.    Carter, J.

No. 2017 IL App (3d) 160276   RVP, LLC v. Advantage Insurance Services, Inc.   Filed 06-14-17 (MGB)

Plaintiffs filed a complaint alleging negligence and breach of contract counts against their insurance broker agencies, Advantage Insurance Services, Inc. (Advantage) and Commercial Insurance Group, Inc. (CIG), and their insurance agent, Tom Roule. Plaintiffs alleged defendants were negligent and in breach of contract for failing to procure sufficient insurance coverage, resulting in plaintiffs being unable to recover insurance proceeds for property that was destroyed in a fire. The trial court granted defendants’ motion for summary  judgment because the plaintiffs’ complaint was filed beyond the applicable two-year statute of limitations

3.     Criminal Law:  Presentence Incarceration Credit towards Fines: Ex Post Facto:  Affirmed:  725 ILCS 5/110-14, which provides for  $5.00 per diem credit against fines for each day of presentence incarceration on a bailable offense upon application of the Defendant for that credit confers a benefit upon Defendants who apply for such credit and is not a punitive part of a sentence.  Thus, the 2005 Amendment thereto, which precludes those incarcerated for sexual assault from receiving that benefit, is not a punitive measure and thus is not subject to the ex post facto  concerns or attacks.  Schmidt,  J., McDade, J., dissenting with Opinion. 

No. 2017 IL App (3d) 150299   People v. Scalise    Filed 06-14-17 (MGB)

Defendant plead and was convicted of 2 counts of Predatory Sexual Assault of a Child, sentenced to 12 years, and assessed costs of $6,056.00m including a $50.00 Court System Fee. The State advised the Court at the time of Plea that defendant was entitled to credit for 9 days in presentence custody. Defendant, having advanced other theories in a 2-1401 Petition in the Trial Court, raises the sole issue on Appeal that he is entitled to $5.00 credit towards the Court System Fee for each  those 9 days.  The plain language of and modifications to section 110-14 establish that it is not a punishment and has no punitive effect. Rather, this section confers a benefit to those defendants who actively seek to offset their fine. Because a defendant must make an “application” for this credit, it is not automatically a part of a criminal sentence. 725 ILCS 5/110- 14(a) (West 2014). Therefore, the retroactive preclusion of the per diem credit is not prohibited by ex post facto concerns. Defendant argues that Prince controls the outcome of this case. In Prince, the Fifth District found application of subsection 110-14(b) violated the prohibition against ex post facto laws. We are not bound by the Prince decision, and for the reasons that follow, we disagree with its holding. See In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 398 (1992) (appellate court is not bound to follow the decisions of other districts). Contrary to Prince, we find the per diem credit is not a part of defendant’s sentencing calculus, and therefore, its exclusion does not increase the available punishment. Respectfully,  Prince overlooks the critical language in subsection 110-14(a) that requires a defendant to make an “application” for the credit.

4.   Insurance:  Declaratory Judgment: Motion To Stay  Reversed and Remanded:   Trial Court erred in failing to stay Declaratory Judgment action alleging (I) Failure to Notify; (II) Failure to Cooperate leading to sanction of Default; and (III) Intentional Conduct in case where putative insured had been defaulted  in underlying defamation case for discovery violations, and damages had not yet been proved-up.  Count II involves an interlocutory sanction that could be reversed prior to final judgment.  The default in Count III is interlocutory as well, but also invokes Peppers  issues or concerns in that proceeding on the declaratory judgment would decide an issue in the uderlying cause (Intentional conduct or not) which would bind the court in the underlying action should the sanction be lifted.  Zenoff, J.  

No. 2017 IL App (2d) 170193      State Farm Fire & Casualty Company v. John   Filed 06-14-17 (MGB)

In December 2013, Wheaton College filed a four-count complaint against John, alleging defamation per se, false light invasion of privacy, civil conspiracy, and malicious prosecution.  According to State Farm’s amended complaint for a declaratory judgment, John first notified State Farm of Wheaton College’s complaint on December 22, 2015. State Farm accepted John’s tender of defense subject to a reservation of rights. State Farm has at all times funded John’s defense through independent counsel. On February 9, 2016, the trial court in the underlying litigation sanctioned John for failing to comply with discovery obligations. State Farm attached a copy of that court order to its amended complaint. In relevant part, that order provided that: “the claims of John *** against all parties are dismissed with prejudice”; “default judgment is granted against John on all of Wheaton College’s claims against him”; and “a prove-up hearing [(on damages)] is set for March 15 at 1:30 p.m.” State Farm alleged in its amended complaint that John’s liability as to Wheaton College’s claims was thus established. The Appellate Court held that two of State Farm’s three claims are  premature. Several factors lead us to conclude that it is appropriate to stay the entire action until the underlying litigation is resolved. We note that the declaratory judgment statute is not “intended to facilitate piecemeal litigation.”  Additionally, as State Farm and Wheaton College have emphasized in their briefs, the only matter currently pending in the underlying litigation is the prove-up on damages. Accordingly, it seems likely that the trial court proceedings in the underlying litigation will conclude relatively soon. Finally, in explaining its ruling on the motion to stay the proceedings, even the trial court in this declaratory judgment action apparently recognized that the proceedings would eventually have to be stayed. Specifically, the court denied the motion to stay “[w]ithout prejudice,” adding: “I mean, if we get down the road and the matter is close to trial I will probably stay it until after the trial takes place.” During the hearing, the court also recognized that “[p]erhaps it is not incumbent on the Court to make a decision on all of those [counts] or any of them until the underlying case is resolved.” Under the unique circumstances of this case, we hold that it is appropriate to stay all proceedings in this matter pending the resolution of the underlying litigation.


5 Appellate Cases Posted 6-13-17 

1. Criminal Law: Reversed: Aggrravated battery of a police officer is not a "forcible felony" as defined under the Criminal Code, and thus may not stand as a predicate felony for the offense of armed habitual criminal, and defendant's conviction for such was therefore reversed. Mason, J.

No. 2017 IL App (1st) 121645  People v. Crosby  Filed 6-13-17 (TJJ)


This case comes to us following a jury trial, a direct appeal, a supervisory order, and three rounds of supplemental briefing. It has been over six years since defendant Ronald Crosby was charged with the crimes of armed habitual criminal (AHC) and  unlawful use of a weapon by a felon (UUWF) and over five years since his conviction and sentencing for AHC. For the reasons that follow, we reverse Crosby’s conviction.

2. Criminal Law: Affirmed: Unlawful use of firearm by felon conviction (based upon predicate felony of aggravated unlawful use of weapon conviction) was proper predicate for offense of armed habitual criminal conviction, even though aggravated unlawful use of weapon conviction was deemed unconstitutional under Aguilar and Burns, where conviction was never vacated. Pierce, J. (Hyman, J., sp. concurring).

No. 2017 IL App (1st) 141013-B  People v. McGee  Filed 6-13-17 (TJJ)


A jury convicted defendant Marchello McGee of armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2012)) and unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2012)). An essential element of the offense of AHC is  proof that the defendant was previously convicted of at least two felonies enumerated in the statute. An essential element of the offense of UUWF is proof that the defendant was previously convicted of any felony under the laws of this State or of any other  jurisdiction. The question presented here is whether a conviction under the portion of the aggravated unlawful use of a weapon (AUUW) statute found to be unconstitutional under People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL 117387, can be used to establish an element of the offense of AHC or UUWF.

3. Condominium Law/Attorneys' Fees: Affirmed: In action by condo association for possession of premises and monetary judgment in connection with alleged failure to pay condo fees and assessments, trial court properly denied defendant claim that detainer statute limited any judgment only to possession of property, and attorneys' fees awarded to plaintiff deemed reasonable. Zenoff, J.

No. 2017 IL App (2d) 160271  Board of Managers of the Inverrary Condominium Association v. Karaganis  Filed 6-13-17 (TJJ)


Defendant, James Karaganis, appeals a judgment entered in the Lake County circuit court in favor of plaintiff, the board of managers of the Inverrary Condominium Association, pursuant to the Forcible Entry and Detainer Act. Defendant argues that neither  the forcible statute nor the Condominium Property Act imposes a personal obligation on him to satisfy any money judgment, apart from having to surrender the use and benefit of his condominium unit. Furthermore, he contends that, as part of  considering “the nature of the action” when determining the amount of attorney fees to award to plaintiff, the trial court should have considered various matters that defendant had raised in his affirmative defenses. Finally, defendant argues that plaintiff  should be sanctioned for filing a false affidavit in the trial court regarding discovery compliance. For the reasons that follow, we affirm.

4. Real Estate Tax Deeds: Affirmed: Fact that petitioner seeking tax deed had mortgage interest in property after taxes were delinquent but before bid to buy property for unpaid taxes was made, prohibited petitioner from seeking tax deed. Harris, J.

No. 2017 IL App (4th) 160707  In re Application of the County Treasurer  Filed 6-13-17 (TJJ)


Petitioner, Dealers Service, Inc., appeals the trial court’s dismissal of its petition for the issuance of a tax deed. It argues the court erred in finding it was ineligible to obtain a tax deed due to interests it held in the property. We affirm.

5. Public Employee Pension and Health Benefits: Reversed: Trial court erred in granting pensioned police officer's complaint for declaratory judgment for health benefits, where proper procedure was for claim to be adjudicated and resolved pursuant to procedures set forth in municipal ordinance establishing such. Steigmann, J.

No. 2017 IL App (4th) 160747  Englum v. The City of Charleston  Filed 6-13-17 (TJJ)


In December 2008, plaintiff, Steven C. Englum, was employed as a police officer by defendant, the City of Charleston (City)—a non-home-rule municipality—when he was injured while exiting his police cruiser. Englum was eventually awarded  line-of-duty pension benefits because of the injury. Englum v. Board of Trustees of the Police Pension Fund, 2013 IL App (4th) 120982-U (reversing the pension board’s decision denying Englum line-of-duty pension benefits). The trial court determined that the proper procedure for determining section 10 benefits (health insurance benefits) eligibility was for the court to decide Englum’s complaint for declaratory relief. The court later held a hearing on Englum’s complaint for declaratory relief and determined that he was entitled to section 10 benefits. The City appeals, arguing that the trial court erred by (1) deciding Englum’s eligibility based on his complaint for declaratory relief instead of allowing the City to determine eligibility under its  rocedural scheme and, alternatively, (2) concluding on the merits that Englum qualified for section 10 benefits. We agree with the City on its first point. We therefore reverse the trial court’s judgment denying the City’s motion to dismiss Englum’s  complaint  for declaratory relief (case No. 14-CH-5; appeal No. 4-16-0747). We dismiss for lack of jurisdiction the City’s appeal in No. 4-16-0748 (case No. 14-CH-6).

3 Appellate Cases Posted 6-12-17

1. Criminal Law: Reversed: Actions by police in "reaching into" a doorway on second floor of residence and recovering drugs deemed by appellate court to be a search intruding into curtilage of a residence where defendant had standing to contest legality of warrantless search, and exigent circumstances did not exist, so as to render trial court denial of pre-trial motion to suppress erroneous and require reversal. Connors, J.

No. 2017 IL App (1st) 143255  People v. Martin  Filed 6-12-17 (TJJ)


Following a bench trial, defendant Derrick Martin was convicted of possession of a controlled substance and sentenced to five years in prison. On appeal, defendant contends the trial court erred in denying his motion to suppress evidence seized during a  warrantless search. We reverse.

2. Parental Rights: Affirmed and remanded: Father's belated claim that he was not properly served with notice of petition to terminate parental rights as service by publication listed child's name incorrectly was denied on appeal; as father subsequently came in to trial court and disavowed his interest in contesting termination, doctrine of laches prevented father from successfully claiming on appeal that he was entitled to relief. Howse, J.

No. 2017 IL App (1st) 160850  In re Jamari R.  Filed 6-12-17 (TJJ)


Following the trial court’s entry of an order terminating the parental rights of the father of Jamari R., the father, Keith B., appealed that decision arguing that he had not been properly served prior to appearing in the proceedings where (1) the Department of  Children and Family Services (DCFS) and the State did not conduct a diligent inquiry in locating him and (2) the State’s service by publication listed the incorrect last name of Jamari and Jamari’s mother. For the reasons that follow, we affirm the trial  court’s order terminating the father’s parental rights and remand this matter to the trial court for further proceedings consistent with this opinion.

3. Medical Malpractice: Reversed and remanded: In med-mal case where plaintiff's counsel was victimized by a battery on day before scheduled trial date, circumstances leading to voluntary dismissal constituted an "agreement in effect" that would obviate the usual bar against "claim-splitting," so that subsequent dismissal of new negligence claim was error, as res judicata did not apply in this instance. Jorgensen, J.

No. 2017 IL App (2d) 160848  Kantner v. Waugh  Filed 6-12-17 (TJJ)


The trial court dismissed on grounds of res judicata the medical malpractice suit filed by plaintiff, Robert Kantner, against defendants, Ladonna Jo Waugh, M.D., Mercy Health System Corporation, Mercy Harvard Hospital, Inc., Mercy Center for Metabolic  and Bariatric Surgery, and Mercy Alliance, Inc. The court noted that res judicata bars claim-splitting, and it determined that plaintiff split his claims. It stated that, under the instant facts, no exception to res judicata’s bar against claim-splitting  applied. Plaintiff appeals, acknowledging that he split his claims, but arguing, inter alia, that the agreement-in-effect exception applied. We agree. The trial court misunderstood the law to require an express agreement. Accordingly, we reverse and remand.

5 Appellate Cases Posted 6-9-17

1. Criminal Law: Affirmed in part and reversed and remanded in part: In prosecutions for separate but related aggravated batteries, where defendant properly waived his right to jury trial in connection with one charge, but following discussion of joinder of both cases was never questioned rearding any jury trial waiver with respect to second, joined case, conviction in "second" case following a bench trial was reversed and conviction in "first" case was affirmed. Burke, J.

No. 2017 IL App (1st) 143644  People v. Gatlin  Filed 6-9-17 (TJJ)


Following a bench trial, which joined together two of his separate, but related, criminal cases, defendant George Gatlin was found guilty of aggravated battery in case number 14 CR 4615 and aggravated battery in case number 14 CR 4616. The trial court  subsequently sentenced him to concurrent terms of four years’ imprisonment. On appeal, defendant contends that (1) his right to a jury trial was violated in both cases because the trial court failed to adequately ensure he made a knowing waiver of this right  and (2) even if the trial court adequately ensured that he knowingly waived his right to a jury trial, that waiver only applied to case number 14 CR 4616 and not to case number 14 CR 4615. For the reasons that follow, we reverse and remand for a new trial in case number 14 CR 4615, but affirm defendant’s conviction in case number 14 CR 4616.

2. Criminal Law: Reversed and remanded: Trial court questions to venirepersons in connection with required Zehr questions were not sufficiently clear and violated SCR 431(b); as evidence was closely balanced, defendant was entitled to new trial notwithstanding defendant's failure to object. Zenoff, J.

No. 2017 IL App (2d) 141203  People v. Dismuke  Filed 6-9-17 (TJJ)


Defendant, Antwon L. Dismuke, appeals from his conviction of being an armed habitual criminal, following a jury trial in the circuit court of Kane County. For the reasons that follow, we reverse and remand for a  new trial.

3. Criminal Law: Affirmed: Fact that defendant was handcuffed and in police custody at time of showup identification procedure was not per se suggestive, and trial court properly denied defendant's pre-trial motion to suppress identification testimony. Delort, J.

No. 2017 IL App (1st) 143766  People v. Jones  Filed 6-9-17 (TJJ)


After a bench trial, defendant Fredrick Jones was convicted of robbery and sentenced to 15 years’ imprisonment. He raises three arguments on appeal. First, he contends that the circuit court erred by denying his motion to suppress the victim’s identification testimony, which was based on a showup that defendant maintains was unduly suggestive. Second, he argues his attorney rendered ineffective assistance of counsel by failing—for purposes of perfecting impeachment—to have a third party present for a conversation she had with the victim in a hallway outside the courtroom. Third, he contends that the fines, fees, and costs order must be corrected to reflect pretrial credit. We affirm and correct the mittimus.

4. Criminal Law: Reversed and remanded: In case where police arrested defendant without probable cause, confronting defendant during interrogation with results of a "bogus" gunshot residue test was not an intervening circumstance that could purge the taint of the illegal arrest so as to attenuate that illegality, and trial court ruling permitting defendant's statements to be admissible was reversed. Gordon, J. (Modified on denial of rehearing).

No. 2017 IL App (1st) 150575  People v. Hernandez  Filed 3-31-17 (TJJ)


After a jury trial, defendant Sergio Hernandez was found guilty of the first-degree murder of Rocio Munoz and of personally discharging the firearm that caused her death. 720 ILCS 5/9-1(a)(1) (West 2008) (first-degree murder with intent to kill); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006) (25-year sentencing enhancement for personally discharging a firearm causing death). Defendant was sentenced to 30 years for the murder and 25 years as a result of a firearm enhancement, for a total sentence of 55 years with the Illinois Department of Corrections (IDOC). For the following reasons, we reverse defendant's conviction, suppress the statement he made at the police station and remand for further proceedings consistent with this opinion.

5. Criminal Law: Reversed and remanded: Trial court erred in denying post-conviction petition in case where defendant was convicted of sexual offense counts added by information over 120 days from date defendant was originally charged, which thus rendered those charges subject to dismissal per the Speedy Trial Act, dismissal for which was never sought by trial counsel, or complained of on appeal by appellate counsel. McDade, J.

No. 2017 IL App (3d) 150213  People v. Dalton  Filed 6-9-17


Defendant, Robert Dalton, appeals from the denial of his postconviction petition at the third stage. Defendant also appeals the sua sponte dismissal of his section 2-1401 petition. We reverse and remand for further proceedings.

1 Appellate Case Posted 6-08-17

1.     Criminal Law:  Self-Defense to Assault:  Affirmed: Self-defense, as a defense to assault  and derivative offenses, is an affirmative defense that a defendant forfeits by not raising. The State’s presentation of evidence sufficient to allow a defendant to raise the defense does not ipso facto raise the defense; rather, a defendant must explicitly raise the defense to avoid forfeiture.   Spence, J.

No. 2017 IL App (2d) 150209   People v. Bardsley  Filed 06-08-17 (MGB)


Defendant  was convicted of aggravated assault of a private security officer (720 ILCS 5/12-2(b)(4) (West 2014)) in a bench trial.  He appeals, asserting that, because the State’s evidence was sufficient to put self-defense at issue and did not rebut that defense, the State failed to prove his guilt beyond a reasonable doubt.  We hold that defendant forfeited the affirmative defense of self-defense, because he did not raise it in the trial court. It is true that evidence sufficient to entitle a defendant to consideration of an affirmative defense can come wholly from evidence put on by the State.  That evidence need not amount to anything like proof of the defense: even “slight evidence” to support the defense is sufficient to allow consideration by the trier of fact.  Once a defendant has adequately raised an affirmative defense, the State must rebut it beyond a reasonable doubt.  The parties agree that these principles govern here. The dispute is over what it means to “raise” a defense. We conclude that the mere presence in the State’s evidence of facts sufficient to permit a defendant to raise a defense is not by itself sufficient to trigger the requirement that the State disprove the defense.

1 Appellate Case Posted 6-07-17

2.   Criminal Law:  Attorney Conflicts of Interest: Affirmed:  A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.. An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.  “Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal.  No Per Se conflict of interest existed where defense counsel withdrew from defendant's case prior to the time that he represented witness who agreed to testify against Defendant as part of a plea agreement. Second Defense counsel not subject to per se conflict where representation of witness ended some 7 months prior to time witness was designated as a witness in Defendant's case.  Where a defendant fails to demonstrate a per se conflict of interest, he must demonstrate that an actual conflict of interest adversely affected his attorney’s performance.  To establish a conflict, the defendant must show “some specific defect in his counsel’s strategy, tactics, or decision making attributable to [a] conflict.” [M]ere speculative or hypothetical conflicts are insufficient to demonstrate an actual conflict of interest. Defendant failed to show actual conflict of interest. Holder White, J.

No. 2017 IL App (4th) 140956  People v. Schutz    Filed 06-07-17 (MGB)


In July 2013, Defendant, Ryan Schutz, hired attorney M. Jane Foster to represent him in an ongoing criminal case. In November 2013, Foster was hired to represent Kristopher Johnson in two unrelated criminal cases. The following month, Foster withdrew from defendant’s case. In February 2014, Johnson, who was still represented by Foster, entered into a plea agreement conditioned upon him testifying against defendant in defendant’s pending case. Defendant’s attorneys at his bench trial, David Rumley and Michael Herzog, had also previously represented Johnson in unrelated matters. Following the bench trial, the trial court found defendant guilty of multiple charges and subsequently sentenced him to 12 years’ imprisonment. Although we find no specific conflict of interest present in this case, our conclusion does not condone counsels’ representations as ideal. As the State conceded at oral argument, this case presents a scenario where “the optics aren’t the best.” In the judicial system, where we seek to avoid even the appearance of impropriety and extol the notion of fairness, cases such as the one before us tarnish that image. Simply stated, it can be inferred from the facts of this case that Foster worked out a deal for one her clients that was to the detriment of another client. The difficulties presented by this case are avoidable. As a better practice, Foster should have informed the trial court that she previously represented defendant and currently represented Johnson, who was now a prosecution witness against defendant. Both Herzog and Rumley should have disclosed their prior representation of Johnson, regardless of the nature or length of the representation. While we do not suspect or intend to suggest any wrongdoing on the part of any of the attorneys involved in this matter, we conclude our proposed solution appropriately places the burden on counsel in light of their ethical obligations in matters before the court.

3 Appellate Cases Posted 6-06-17

1.       Criminal Law:  Post Conviction:  Affirmed: Where the record establishes strong evidence of guilt and Affidavits of alleged "new" witnesses did not conclusively disprove the State's theory of the case, trial court properly dismissed postconviction proceedings at the second stage of the proceedings.   To obtain relief in actual innocence claim, defendant must present evidence that is (1) new, in that it could not have been discovered prior to trial through due diligence; (2) material to the issue of defendant’s innocence; (3) noncumulative of the evidence presented at trial; and (4) sufficiently conclusive that it would probably change the result on retrial.  Mason, J.

No. 2017 IL App (1st) 143268    People v. Evans   Filed 06-06-17 (MGB)


Defendant Shannon Evans was convicted of first degree murder in the  shooting death of Robert Duffy. He filed a postconviction petition asserting (1) actual innocence based on affidavits from two witnesses stating that Evans was not present when Duffy was shot and (2) ineffectiveness of trial counsel for failing to investigate witnesses who could have testified for Evans at trial. The trial court dismissed Evans’s petition at the second stage of postconviction proceedings, finding that in light of the State’s strong evidence of Evans’s guilt, his “new” witnesses did not conclusively disprove the State’s theory of the case nor was Evans prejudiced by the alleged mistakes of counsel. Evans now appeals. We agree with the trial court and affirm. Finally and most importantly, Miles’s and Murph’s affidavits, whether viewed individually or together, are not sufficiently conclusive that they would likely change the result on retrial, given the strength of the State’s evidence against Evans.  First, according to Mosley’s unimpeached testimony, Evans admitted the day after the murder that (i) he was present when Duffy was shot (supposedly by a rival gang member), (ii) he had a gun, and (iii) he shot someone. Thus, Evans’s own admissions contradict the testimony of his witnesses that he was not present during the shooting.

2.   Mortgage Foreclosure: Conveyances: Reversed and Remanded for further proceedings:  A quitclaim deed must include a description of the real estate conveyed.  We presume that, in executing the deed, the grantor intends to convey the property he or she owns.  If the land cannot be located from the description in the deed, the deed is void for uncertainty. Id. The purpose of this description is to identify the deed’s subject matter, and the description is sufficient if it allows a competent surveyor to identify it with reasonable certainty.  Further, a deed will not be declared void for uncertainty “if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey'     Hyman, J.

No. 2017 IL App (1st) 161035   Reverse Mortgage Solutions, Inc. v. Rahman   Filed 06-06-17 (MGB)

In 1961, Harvey and Rosalind Collins bought a property in Chicago. In 1979, Harvey signed a quitclaim deed, conveying the property to Rosalind. Rosalind died, and Harvey then signed a mortgage, which eventually came into the hands of Reverse Mortgage Solutions (RMS). After Harvey’s death, RMS tried to foreclose on the property, but the Collins’s daughter, Rasheeda Rahman, fought the foreclosure. We find that the 1979 quitclaim deed contains a sufficient description of the property to convey it from Harvey to Rosalind. But, after Rosalind died intestate, Harvey inherited some portion of the property through Rosalind’s estate, which he was able to convey through the mortgage. We remand for further proceedings on RMS’s complaint.

3.     Civil Forfeiture: Notice:   Reversed and Remanded:  Despite the fact that notice sent  to address supplied by arrestee at the time of his arrest complied with the notice requirements of the Drug Asset Forfeiture Procedure Act, Arrestee's complaint should not have been dismissed because it raised the issue of whether arrestee was deprived of due process requirements of notice and opportunity to be heard, where complaint alleged Peoria County knew or should have known arrestee was in custody of Kane County.    O'Brien.  J.

No. 2017 IL App (3d) 160439  Rodriguez v. Brady      Filed 06-06-17 (MGB)

Plaintiff,  Rodriguez, filed a complaint in small claims court seeking the return of money that had been seized from him upon arrest and subsequently subjected to civil forfeiture. Defendant is Jerry Brady, the Peoria County State’s Attorney, whose office executed the civil forfeiture. Plaintiff argued in his complaint that the notice of forfeiture sent to his home address was constitutionally insufficient where defendant knew or should have known that plaintiff was in the Kane County jail after being arrested in Peoria County. Defendant filed a motion to dismiss the small claim, which the circuit court granted. We reverse and remand for further proceedings. In order to pass constitutional muster, the notice provided to an owner of assets subject to civil forfeiture must be “reasonably calculated, under all the circumstances, to apprise interested  parties” of the pending forfeiture.  In other words: “The means employed [in providing notice] must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Due process does not require the State to successfully provide actual notice but merely attempt to do so.  In determining whether given notice has been constitutionally sufficient, “a court may consider the character of the proceedings and the practicalities and peculiarities of the case. If, as plaintiff alleges, defendant knew or should have know that plaintiff was in the custody of the Kane County jail at the time defendant sent notice of forfeiture to plaintiff’s home address, then that notice failed to satisfy the constitutional requirement of due process. Accordingly, the circuit court’s granting of defendant’s section 2-615 motion to dismiss was improper, as plaintiff sufficiently pled a set of facts that would legally entitle him to relief. We therefore reverse that ruling and remand for further proceedings—specifically, a hearing and judgment on the merits—not inconsistent with this order.

2 Appellate Cases Posted 6-05-17

1.    Criminal Law: Affirmed: Special Interrogatory: Jury Question:  Jury's finding any special interrogatory that the State had not proven defendant had discharged a firearm, does not require the vacatur of his first-degree murder conviction.  Defendants in Illinois cannot challenge convictions on the sole basis that they're legally inconsistent with acquittals on other charges. The United States Constitution does not require consistency in criminal verdicts. State is not required to prove beyond a reasonable doubt that defendant used a firearm to sustain a charge of first-degree murder, even when the victim dies from gunshot. Where jury question was answered by the Court in the presence of counsel and defendant, where Defense counsel remain silent, defendant was not deprived of his right to participate in a portion of the proceedings.   Harris,  J.

No. 2017 IL App (1st) 142170  People v. Alexander  Filed 06-05-17 (MGB)


The defendant-appellant, Kory Alexander, was found guilty by a jury of first degree murder. However, in a special interrogatory, the jury found that it had not been proven that defendant discharged a firearm during the commission of the offense. The trial court sentenced defendant to 40 years in prison on the first degree murder conviction.


2.    Criminal Law: Post-Conviction: Pleadings: Ineffective Assistance: Fitness: Affirmed:   The fact that the State filed a pleading entitled "Answer" to post-conviction petition rather than one entitled "Motion to Dismiss" did not result in requirement that Defendant was entitled to an evidentiary hearing on all issues, where "Answer" conceded one claim but asserted Defendant's other claims were sufficiently plead to allow relief.   Post-Conviction discovery violation claims require the defendant to prove three elements: (1) that the evidence is favorable to the accused because it is either exculpatory or impeaching, (2) the evidence was suppressed by the State, and (3) the accused was prejudiced because the evidence is material to his guilt or punishment. Defendant's Schmidt, J.

No. 2017 IL App (3d) 140977      People v. Miller   Filed 06-05-17 (MGB)
 
A jury convicted defendant of first degree murder for which he originally received a mandatory natural life sentence. He later pursued relief on numerous claims of constitutional violations under the Post-Conviction Hearing Act. Some of defendant’s claims were dismissed at the second-stage dismissal hearing while others proceeded to a third-stage evidentiary hearing. The trial court granted a new sentencing hearing but no other relief. At the resentencing hearing, defendant received 60 years’ imprisonment, the maximum sentence for his crime. Defendant raises three issues on appeal in relation to his postconviction petition. First, he appeals the claims dismissed at the second stage because the State captioned its responsive pleading as an answer, not a motion to dismiss. Next, defendant argues that we should remand for additional postconviction proceedings due to postconviction counsel’s unreasonable level of assistance at the evidentiary hearing. Finally, he claims he is entitled to a new trial based upon ineffective assistance of trial and appellate counsel in failing to submit jury instructions on lesser-included offenses. In addition to his postconviction claims, defendant directly appeals the 60-year sentence imposed at his resentencing hearing, arguing that the trial court abused its discretion by levying an excessive sentence. The parties appeared for a dismissal hearing to argue the viability of defendant’s pleadings. Based on the pleadings and the parties’ positions at the hearing, the trial court dismissed many of defendant’s claims. We find that the State’s responsive pleading, in substance, sought dismissal of these claims—it did not merely admit or deny material facts. The trial court was empowered to dismiss defendant’s claims. With regard to the claim of ineffective assistance of post-conviction counsel,  neither defendant’s briefs nor his petition for rehearing explains how the substance of the recording would be material or show that defendant was prejudiced by the State’s nondisclosure, as he must to prove his discovery violation claim. If the recording does not contain exculpatory or impeaching evidence that is material to defendant’s guilt or innocence, then postconviction counsel’s omission cannot be unreasonable—it is not unreasonable to omit evidence that does not help your client’s case. Failure to submit lesser-included offense instructions was not ineffective assistance of counsel on the record before the Court. The trial court determined that the totality of the evidence presented indicated defendant took an intentional all-or-nothing approach. The court found Heintz’s testimony credible and concluded it was defendant’s wish to proceed without the lesser-included offense instructions. These facts do not indicate ineffective assistance of defendant’s trial or appellate counsel. Accordingly, the trial court found that defendant failed to make the required substantial showing. The totality of the evidence presented at the hearing supports the trial court’s determination. In the instant case, defendant stands convicted of murdering a 17-month-old infant. The mitigating factors presented—defendant’s lack of prior violent crimes, troubled upbringing, age, rehabilitative potential, and drug dependency related to the murder do not render defendant immune from a maximum sentence. The trial judge clearly weighed these factors—he stated on the record that they were insufficient to overcome the nature of the crime. The judge also determined that defendant fell short of expressing true remorse for his actions. Defendant is asking this court to reweigh the sentencing factors, which we cannot do by law. See id. We find no abuse of the trial court’s discretion in imposing the maximum 60-year sentence.

1 Appellate Case Posted 6-02-17

1.    Sexually Violent Persons Commitment Act:  Section 55 of the Act providing that the Department "shall submit a written report to the court on his or her mental condition at least once every 12 months is director and the Act contains no language prohibiting further action where the report is not filed within such time period.   Fact that Defendant's diagnosis changed from date of original commitment to pending review report does not require release where Review Report and evidence indicated that Defendant remained sexually violent person. Defendant must present sufficient evidence that he no longer meets the following elements for commitment: (1) he no longer has “a mental disorder” or (2) he is no longer dangerous to others because his mental disorder no longer creates a substantial probability that he will engage in acts of sexual violence. McBride, J.

No. 2017 IL App (1st) 160962      In re Detention of Lieberman    Filed 06-02-17 (MGB)

Respondent Brad Lieberman appeals from the trial court’s order denying his petition for discharge and granting the State’s motion for a finding that no probable cause existed to discharge him from commitment pursuant to the SVPCA.  On appeal, respondent argues that the Cook County circuit court erred in ruling that no probable cause existed that he should be discharged because his current diagnosis of “Sexual Sadism” differed from the diagnosis for which he was originally adjudicated a sexually violent person under the Act, namely “Paraphilia, Not otherwise specified” (PNOS).  In conclusion, respondent has failed to establish a plausible account that he is no longer a sexually violent person. Accordingly, we uphold the trial court’s decision to grant the state’s motion for a finding of no probable cause to warrant an evidentiary hearing and to deny respondent’s petition for discharge. He also argues the Trial Court should have sanction the State and ordered his release where the annual review report was not timely completed. The Act has no negative language prohibiting further action in the event the State does not comply. Further, the right to annual reexamination as a method for obtaining discharge is not injured by a filing delay because the Act provides alternative methods to petition for discharge. A petitioner may seek other  remedies, including a show-cause order or a mandamus action under section  compelling the Department to file the report.


3 Appellate Cases Posted 5-30-17

1. Criminal Law:  Affirmed:  The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.  UPC barcodes were the modus operandi in accomplishing the theft. So otherwise innocuous UPC labels were incriminating because the thefts that had occurred involved the scanning of UPC labels on checkout, establishing more than a mere suspicion.  The prosecutor’s closing remarks did not constitute reversible error, and they certainly did not rise to the level of plain error. While instructing the jury that arguments are not evidence will not, in every instance, constitute a cure, the State’s remarks were not inflammatory or emotional, nor did they demonstrate “a pervasive pattern of unfair prejudice.”  Hyman, J.


No. 2017 IL App (1st) 150641
People v. Petty Filed 5-30-2017(ATH)


Defendant was convicted by a jury of retail theft and sentenced to two years’ incarceration. Defendant argues that the trial court should have granted his motion to quash arrest and suppress uniform product code (UPC) labels seized from his car. We hold that the plain-view doctrine applies and the trial court properly denied his motion. Defendant also asserts the prosecutor argued facts not in evidence to the jury in closing; shifted the burden of proof to the defense; and commented on his post-arrest silence, failure to testify, and failure to present evidence in his defense. We find no errors requiring reversal.

2. Criminal Law:  Affirmed:  We do not believe the court’s comment shifted the burden of proof to defendant. However, we do agree the comment misstated the law as far as the evidence necessary to prove a conspiracy. Nonetheless, we do not find that the misstatement of law rises to the level of plain error as the evidence was not closely balanced and, when considering the totality of the circumstances, the error did not confuse the jury. The court did not make the comment to the jury, but to counsel. Though the comment was made in the presence of the jury, it did not amount to an instruction, and the court instructed the jury to disregard any remarks it made while ruling on the admissibility of evidence. Viewing the court’s comment in context, the record shows that the comment did not act to shift the burden of proof to defendant, nor could it be interpreted as such by the jury. Because defendant’s letter to the court did not express a clear claim of ineffective assistance of counsel, we find the court was not required to sua sponte conduct a Krankel inquiry. Here, defendant sent a document to the court after trial, stating that he was “shocked” the court did not allow in evidence certain evidence. In the PSI report, defendant also said the police report was not allowed into evidence. Nowhere in either statement did defendant even mention his attorney. Therefore, these statements did not assert a clear claim of ineffective assistance of counsel as to warrant a Krankel inquiry. Lytton, J.

No. 2017 IL App (3d) 150036 People v. Villanueva  Filed 5-30-2017 (ATH)


Defendant, Jose Ramon Villanueva, Jr., appeals his convictions for predatory criminal sexual assault of a child, criminal sexual assault, and criminal sexual abuse, arguing (1) the circuit court’s comments in front of the jury shifted the burden of proof to defendant and (2) the circuit court should have conducted a Krankel inquiry. Defendant argues that the court shifted the burden of proof to the defense by stating, in the presence of the jury: “Well, suggesting and proving [a conspiracy] are 2 different things. Conspiracy means that the 3 of them had to get together and make an agreement and I don’t know how he would know that unless they made an agreement in front of him, which is pretty stupid in my book.” We affirm.

3. Postconviction Petition: Reversed: Given the record before us, we are unwilling to assume that defense counsel’s decision to describe the details of the defendant’s aggravated battery conviction, and to allow the defendant to testify regarding his past criminal activity, was sound trial strategy. This information may have influenced the jury’s verdict. The defendant also argues that his counsel was ineffective in that he failed to lay a proper foundation to impeach Gecht.  Gecht was a prisoner with whom defendant had contact and made admissions about the offense. We are not willing to assume that defense counsel’s failure to lay the groundwork for the impeachment of Gecht was sound trial strategy.  Also, counsel failed to properly prepare a diagram of the house and yard, including sight lines, so that this evidence could be introduced. The defendant contends that, as a result of counsel’s error, he was deprived of critical evidence that supported his theory that someone else was the perpetrator of the crime. The numerous errors outlined above entitle the defendant to a third stage evidentiary hearing. On the record before us, the defendant has made a substantial showing that his trial counsel’s representation was substandard and that counsel’s deficient performance may have had an effect on the outcome of the proceedings.  Cates, J.

No. 2017 IL App (5th) 130576 People v. Tucker Filed 5-30-2017 (ATH)


The defendant, Joe C. Tucker, Jr., filed a pro se petition pursuant to the Post-Conviction Hearing Act. Appointed counsel filed an amended postconviction petition, alleging ineffective assistance of trial and appellate counsel. The State filed a motion to dismiss the amended petition, and the motion was granted by the trial court. The defendant filed a timely appeal, asserting that the trial court erred in dismissing his amended petition without a third-stage evidentiary hearing, when the defendant had alleged sufficient facts to make a substantial showing that his constitutional rights had been violated. For the reasons that follow, we reverse the order of dismissal and remand the matter for an evidentiary hearing.

3 Appellate Cases Posted 5-26-17

1. Review of Labor Relations Board:  Reversed in part, Vacated in part:  AFSCME appeals to the an order of the Illinois Labor Relations Board (Board) affirming the executive director’s order revoking its earlier certification of AFSCME and reopening proceedings on AFSCME’s unit clarification petition. There is no express provision anywhere in the Illinois Public Labor Relations Act (Act) or anywhere in the Board’s rules allowing the executive director, in the same case in which it certified a union as the bargaining agent for certain public employees, to reconsider the order and revoke its prior certification of the union after the time for an appeal has passed.  As the executive director lacked the authority the resulting order dismissing the unit clarification petition was void. Accordingly, we vacate the order dismissing AFSCME’s unit clarification petition for lack of jurisdiction. Rochford, J.


No. 2017 IL App (1st) 160960
AFSCME v. The Illinois Labor Relations Board Filed 5-26-2017 (ATH)


AFSCME directly appealed the Board’s prior orders affirming the executive director’s revocation order, finding that the executive director had the authority to revoke its earlier certification of AFSCME and reopen proceedings on AFSCME’s unit clarification petition and dismissing the unit clarification petition filed by AFSCME because it was untimely and it failed to satisfy any of the criteria established by the Board’s rules for the filing of such a petition to the appellate court pursuant to the Act.

2. Criminal Law:  Affirmed: Section 120(a) of the Methamphetamine Control and Community Protection Act requires the State to prove a defendant knowingly possessed a substance containing a methamphetamine precursor and had a prior conviction under the Act.  Persons with a valid prescription for the methamphetamine precursor are exempted. The prescription exception is not part of the body of the offense. Instead, it merely withdraws certain persons from the operation of the statute, i.e., those possessing a prescription for the drug they purchase. Thus, the exception is a matter of defense, and the State has no burden to disprove it. Accordingly, we find the State was not required to prove defendant did not have a prescription for the pseudoephedrine in her possession to establish a violation of section 120(a) of the Act. Turner, J.

No. 2017 IL App (4th) 150388 People v. Brace Filed 5-26-2017 (ATH)


The defendant pleaded guilty to the offense of unlawful possession of methamphetamine precursors without a prescription while having a previous methamphetamine conviction. In March 2015, the trial court sentenced her to one year in prison. In April 2015, defendant filed a motion to withdraw her guilty plea, which the court granted. In a May 2015 stipulated bench trial, the court found defendant guilty and reimposed the one-year sentence. On appeal, defendant argues the State’s evidence at her stipulated bench trial failed to prove a necessary element of the charged offense, that is that she lacked a prescription for pseudoephedrine.

3. Civil Law:  Reversed in part, Affirmed in part:  Because the record is not yet fully developed, it is difficult to determine whether one or more of the named defendants may have held a special relationship that would have included a duty to disclose defects in the property or breaches of the lease. A motion to dismiss pursuant to section 2-619(a)(9) is not a substitute for a summary judgment motion. In this case, the defendant’s evidentiary materials did not constitute affirmative matters that defeat the plaintiff’s claims. After reviewing the record, we conclude that the trial court erred in granting the defendants’ motions to dismiss under section 2-619(a)(9).  Under Rule 137, a trial court, in its discretion, may impose sanctions against a party for filing a pleading that is not well grounded in fact, not supported by existing law, or by good-faith argument for modification, reversal or extension of the law, or instituted for an improper purpose such as harassment. The trial court determined that the plaintiff’s pleadings were neither frivolous nor brought for an improper purpose and denied the defendants’ motions for sanctions. After reviewing the record, we do not find that the trial court abused its discretion in denying the defendants’ motion for sanctions. Cates, J.

 
No. 2017 IL App (5th) 160013
Kuykendall v. Schneidewind Filed 5-26-2017 (ATH)


The plaintiff, Edward Kuykendall, filed an action in the circuit court of St. Clair County, against the defendants, alleging fraud, breach of contract, and violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) arising from the purchase of a commercial property. The defendants moved to dismiss the action with prejudice under section 2-619(a)(9) of the Code and requested attorney fees and costs under a fee-shifting provision in the purchase agreement. The defendants also sought sanctions under Illinois Supreme Court Rule 137. Following a hearing, the trial court granted the defendants’ motions and dismissed the plaintiff’s action with prejudice but denied their requests for attorney fees, costs, and sanctions. The plaintiff appealed from the order of dismissal, and the defendants cross-appealed from the order denying attorney fees and sanctions. For reasons that follow, we reverse the order of dismissal, affirm the order denying sanctions, and remand the cause for further proceedings.

1 Supreme Court Case Posted 6-2-17

1. Criminal Law: Appellate and circuit courts reversed, cause remanded: Trial court failure to comply with Supreme Court Rule 431(b) during voir dire entitled defendant to a new trial despite trial counsel's failure to object where evidence was closely balanced. Theis, J. (Karmeier, C.J, and Burke, J., filed separate dissenting opinions)

No. 2017 IL 119445  People v. Sebby  Filed 6-2-17 (TJJ)


Defendant, Montana Sebby, was convicted by a jury of resisting a peace officer, a Class 4 felony (720 ILCS 5/31-1(a-7) (West 2010)), and sentenced by the trial court to two years’ imprisonment. On appeal, the defendant argued that the trial court committed error in admonishing prospective jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) and that, despite his failure to object to that error, he was entitled to a new trial because the evidence was closely balanced. A majority of  the appellate court disagreed with the defendant and affirmed his conviction and sentence. 2015 IL App (3d) 130214. For the reasons that follow, we reverse and remand for further proceedings.


4 Supreme Court Cases Posted 5-18-17

1. Criminal Law: Appellate court reversed, remanded: Notwithstanding that this was a direct appeal of defendant's conviction for attempt murder, record was sufficient to examine claim of ineffective assistance of counsel, and the supreme court rejected the "broad-sweeping categorical approach" by some appellate courts in refusing to examine claims of ineffective assistance on direct review. Kilbride, J.

No. 2017 IL 120649  People v. Veach  Filed 5-18-17 (TJJ)


In this appeal, we examine the propriety of a growing practice in the appellate court of declining to consider ineffective assistance of counsel claims on direct review. A Coles County jury found defendant, Blackie Veach, guilty of two counts of attempted  murder and rejected defendant’s theory that someone else committed the crimes. On direct review, defendant argued that his trial counsel was ineffective for stipulating to the admission of recorded statements of the State’s witnesses. A majority of the appellate court affirmed, holding that the record was inadequate to resolve the issue. The majority encouraged defendant to raise the issue in a postconviction petition. 2016 IL App (4th) 130888, ¶¶ 89, 92. We allowed defendant’s petition for leave to appeal  pursuant to Illinois Supreme Court Rule 315 (eff. Mar. 15, 2016). We hold that the record in this case was sufficient for the appellate court to consider defendant’s ineffective assistance of counsel claim on direct review and, therefore, the  appellate court erred in declining to consider the claim. We reverse the judgment of the appellate court and remand the cause to the appellate court for further review.

2. Freedom of Information Act: Appellate and circuit courts affirmed: Illinois High School Association was not a "public body" under the Freedom of Information Act, and circuit court properly dismissed plaintiff's suit seeking records under the Act. Theis, J.

No. 2017 IL 121124  Better Government Association v. Illinois High School Ass'n  Filed 5-18-17 (TJJ)


In this appeal, the primary issue we are asked to consider is whether the Illinois High School Association (IHSA), which governs and coordinates interscholastic athletic competitions for public and private secondary schools in Illinois, is a “public body” as  defined by the Freedom of Information Act (FOIA) (5 ILCS 140/2 (West 2014)) and, alternatively, whether certain requested records of the IHSA should be considered “public records” of Consolidated High School District 230 (District 230 or the District), a public body, for purposes of section 7(2) of the FOIA (5 ILCS 140/7(2) (West 2014)). The Cook County circuit court held the IHSA was not a public body subject to the FOIA and that District 230 had no obligation to obtain and disclose the requested  IHSA records under section 7(2). The appellate court affirmed. 2016 IL App (1st) 151356. For the following reasons, we affirm the judgment of the appellate court.

3. Estates: Affirmed in part and reversed in part: Under terms of power of attorney, physician's report dated two years after transaction by designated agent of allegedly incompetent person could not be used to retroactively establish incompetence at time of transacaction, and "successor" agent had no fiduciary duty to principal when primary agent transferred property to successor agent. Burke, J.

No. 2017 IL  121199  In re Estate of Shelton  Filed 5-18-17 (TJJ)


The two consolidated appeals before this court concern the duties owed by an agent to a principal under a power of attorney for property. Ruth Ann Alford was named as executor of the estates of her parents, Thomas and Doris Shelton, following their  deaths in 2012. In her capacity as executor, Ruth Ann filed two actions on behalf of the estates in the circuit court of Grundy County against her brother, Rodney Shelton. Both actions concerned quitclaim deeds signed by Thomas in 2011 which conveyed farmland to Rodney and his wife. At the time of these transactions, Rodney was designated as the successor agent under both Thomas’s and Doris’s powers of attorney. The estates alleged that Rodney breached his fiduciary and statutory duties as an agent   by personally benefitting from the real estate transactions. The circuit court dismissed both actions pursuant to sections 2-619(a)(9) and 2-615 of the Code of Civil Procedure, respectively. The cases were consolidated on appeal. The appellate court affirmed  the dismissal of the action involving Thomas’s estate and reversed the dismissal of the action involving Doris’s estate. In re Estate of Shelton, 2016 IL App (3d) 140163. For the reasons that follow, we find that both actions were properly  dismissed by the circuit court. We thus affirm in part and reverse in part the appellate court’s judgment.

4. Attorney Fee Agreements: Appellate court affirmed: In action for "referral" fees by plaintiff law firm in referring workers' compensation cases to defendant attorney, failure of written fee agreements to expressly state that the attorneys assumed "joint financial responsibility" for the referred matters did not warrant dismissal of plaintiff's claims. Karmeier, C.J.

No. 2017 IL 121297  Ferris, Thompson & Zweig, Ltd. v. Esposito  Filed 5-18-17 (TJJ)


This appeal involves an action for breach of contract brought by one law firm against another after the defendant law firm refused to honor the fee-sharing provisions of the firms’ joint client retainer agreements. A single question of law is presented: Are  fee-sharing provisions in otherwise valid retainer agreements between clients and two separate law firms void and unenforceable if the primary service performed by one firm is the referral of the clients to the other but the agreements fail to specifically  notify the clients that the lawyers in each firm have assumed joint financial responsibility for the representation? For the reasons that follow, we affirm the judgment of the appellate court and remand the cause to the circuit court for further proceedings.

1 Appellate Case Posted 5-24-17

Criminal Law:  Reversed:  In this case, the State sought to reinstate charges that were previously nol-prossed pursuant to a negotiated guilty plea, which was later held void, but by the time the State sought reinstatement, the limitations period on the only live count underlying the guilty plea had expired. The prosecution of defendant thus commenced on February 23, 2007, and remained pending until June 12, 2007, when defendant entered into the negotiated guilty plea whereby the State agreed to nol-pros the remaining charges. Defendant neither withdrew his guilty plea nor filed a direct appeal, and 30 days thereafter, the three-year statute of limitations clock began to run again. Following his guilty plea conviction, there was no “pending prosecution” to toll the running of the limitations period.  In short, starting in June 2007, the three-year limitations period began to run, and in June 2010, it expired. Lavin, J.

No. 2017 IL App (1st) 152758 People v. Wells Filed 5-24-2017 (ATH)

 

Defendant filed a collateral petition and appeal from his 10-year negotiated guilty plea conviction, and this court remanded for withdrawal of the plea. The State reinstated certain charges, and following a jury trial, defendant was found guilty of aggravated battery of a senior citizen and robbery and was sentenced to 15 years in prison. Defendant appeals arguing, among other claims, that the trial court erred in denying his motion to dismiss the reinstated charges as time-barred. We reverse.

2 Appellate Cases Posted 5-23-17

1. Certificate of Innocence:  Vacated and Remanded:  The evidence used by the trial court to determine that petitioner caused his conviction was not “submitted” by petitioner or by the State. The court, on its own, pointed to certain evidence and used it to deny petitioner’s request without giving him a meaningful opportunity to object to it. Just as in any other adversarial proceedings, petitioner must have opportunity to object to the admissibility and the probative value of the evidence used to deny his claim. A contrary position would place the State at a strategic advantage by simply not taking any position in the proceedings and lead to unfair surprise for the petitioner.  We remand the matter to the trial court for an evidentiary hearing where petitioner would be able to object to the admissibility, the probative value of the evidence and for an opportunity to present evidence in support of his claim that he did not voluntarily cause his own conviction.  Simon, J.


No. 2017 IL App (1st) 152173 People v. Simon Filed 5-23-2017 (ATH)


Alstory Simon (petitioner) appeals from a circuit court order denying his petition for a certificate of innocence. Petitioner argues that the circuit court erred when holding that he voluntarily caused his own conviction and when denying his petition based on the lack of State’s misconduct.

2. Employees Ethics Act/ Whistleblower:  Affirmed:  It is undisputed that Wynn engaged in statutorily protected activity under the Ethics Act when he told an auditor that a payment to a DHS vendor was unauthorized. Nonrenewal of a contract qualifies as an “adverse employment action” under Title VII because it is a “change in the terms and conditions of employment.” Hence, nonrenewal constitutes retaliatory action. The Ethics Act seeks to encourage employees, including contract employees, to report wrongdoing without fear of reprisal. To further the purposes of the Ethics Act, employees subject to renewal must be protected from pretextual discharge when the evidence supports a finding that the decision not to renew was motivated by animus for whistleblowing activity. Moreover, employees like Wynn, who lack protection from a union, can be more susceptible to intimidation by the threat of nonrenewal. Hyman, J.


No. 2017 IL App (1st) 160344 Wynn v. The Illinois Department of Human Services Filed 5-23-2017 (ATH)


For thirteen years Jerry Wynn worked as a contract employee for the Illinois Department of Human Services. Then his contract was not renewed. Wynn sued DHS under the whistleblower provision of the State Officials and Employees Ethics Act (Ethics Act). He contended that DHS terminated him in retaliation for reporting an improper expenditure to an auditor. According to DHS, Wynn and others were terminated under an agreement between the State and the American Federation of State and Municipal Employees (AFSCME) to place union employees in positions occupied by contractors and vendors.  After a bench trial, Wynn prevailed. The trial court held Wynn proved that his protected activity—reporting an improper payment to the auditor—was a contributing factor in DHS not renewing his contract and terminating him. DHS argues the trial court erred as (i) nonrenewal of a fixed-term contract does not amount to unlawful retaliation under the Ethics Act and (ii) the findings were against the manifest weight of the evidence.

2 Appellate Cases Posted 5-22-17

1.     Criminal Law: Voir Dire on Attitudes Towards Guns: Attempt: Closing Argument, flight as Consciousness of Guilt: One-Act, One-Crime:  Conviction for Armed Violence Affirmed, Convictions for AUUW and Possession of Controlled Substance:  Trial Court did not abuse discretion in declining to specifically inquire of jurors' feelings about guns in prosecution for AUUW, and other charges premised on gun possession.  Closing Argument that defendants flight could be considered as evidence of guilt was not a misstatement of law. Convictions for Possession of Controlled Substance and Aggravated Unlawful Use of Weapon (carrying without FOID) merged into conviction for Armed Violence (premised on possession of controlled substance while armed with a firearm) under One-Act, One-Crime Rule.  Mikva, J.

No. 2017 IL App (1st) 1473036    People v. James   Filed 05-22-17 (MGB)



Following a jury trial, Mr. James was found guilty of the unlawful and knowing possession of benzylpiperazine (BZP), a controlled substance; aggravated unlawful use of a weapon (AUUW), for carrying a firearm without a valid Firearm Owner’s Identification (FOID) card; and armed violence, based on his possession of the BZP while armed with a firearm. On appeal, Mr. James argues that (1) the trial court abused its discretion by failing to inquire during voir dire regarding potential jurors’ feelings about guns; (2) statements made by 1-14-3036 2 the prosecutor during closing and rebuttal arguments denied Mr. James a fair trial; (3) under the one-act, one-crime rule, Mr. James’s convictions for possession of a controlled substance and AUUW should be vacated; and (4) the trial court erroneously failed to order 303 days of presentence credit for sanitation work that Mr. James completed while he was incarcerated.  In sum, Mr. James has failed to convince us that any relevant gun-related bias would not have been uncovered by the trial court’s general question regarding fairness and impartiality coupled with the fact that the venire understood that Mr. James faced charges of illegally possessing a gun—and its additional questions addressing whether potential jurors or their close friends or family members had been victims of crimes. Under the circumstances of this case, the trial court’s questioning of the prospective jurors created a reasonable assurance of impartiality. We agree with the State, however, that the issue is not whether flight from police officers, on its own, constitutes proof beyond a reasonable doubt of a defendant’s guilt. The issue is whether the State was entitled to argue that consciousness of guilt is a reasonable inference to be drawn from such conduct—that inference in turn constituting circumstantial evidence of the defendant’s guilt. Our supreme court has repeatedly held that it is. At the sentencing hearing, the State noted that counts 4 and 7 should merge into count 1. Nevertheless, the mittimus reflects all three convictions, with separate sentences and periods of mandatory supervised release imposed for each. “Pursuant to Supreme Court Rule 615(b), this court may correct the mittimus without remanding the case to the trial court.” Accordingly, we vacate the trial court’s entry of judgment on counts 4 and 7 and correct the mittimus to reflect, under count 1, a single, class X conviction for armed violence and a corresponding sentence of 15 years, plus 3 years of mandatory supervised release. As there is nothing in the record indicating that the vacated convictions had any effect on the separate sentence Mr. James received for armed violence, it is unnecessary for us to remand for resentencing.

2.    Medical Marijuana: Administrative Review of Qualifying Conditions: Retroactive Application of Regulations:  Trial Court Order reversing Director's Decision Affirmed:  Final Decision Closing of the Director of the Department of Public Health of whether a condition shall be added as a "debilitating medical condition" under the Compassionate Use of Medical Cannabis Pilot Program are subject to review in the Circuit Courts under the Administrative Review Law.  Director's  determination that "substantial evidence from adequate, well-controlled clinical trials to support the use of cannabis"  did not support the addition of Chronic Post Surgical Pain as a qualifying condition for medical marijuana was erroneous where that standard was not directed by Statute or Department Rule existing at the time of the application.  Regulations changing the standard for addition of debilitating medical conditions does not apply retroactively.  Trial Court's determination that CPOP be added to the list of debilitating medical conditions affirmed.   Connors, J.

No. 2017 IL App (1st) 162548  Three v. The Department of Public Health   Filed 05-22-17 (MGB)



Plaintiff John Doe Three petitioned the Department of Public Health (Department) to add “chronic post-operative pain” (CPOP) as a “debilitating medical condition” under the Compassionate Use of Medical Cannabis Pilot Program Act (Act) (410 ILCS 130/1 et seq. (West 2014)). The Director of the Department, Nirav D. Shah, M.D., J.D., denied the petition, and plaintiff sought judicial review under the Administrative Review Law. The Circuit Court ultimately entered an Order to outright reverse the Department’s findings, without remand, and directed the Director to add CPOP to the list of “debilitating medical conditions” under the Act within 30 days of its order. The Advisory Board was then mandated to recommend to the Department additional debilitating conditions or diseases that would benefit from the medical use of cannabis. While there is nothing in the rules to indicate that the Director must follow the recommendations of the Advisory Board, there is also nothing in the rules indicating that the Director should be using a heightened standard of which plaintiff was unaware or the Director’s own research that was not presented at the hearing. When the agency with primary jurisdiction applies the wrong standard to the evidence before it, any resulting finding is invalid, and the case should be remanded. Illinois courts have developed a three-tiered test to determine retroactivity. First, has the legislature clearly indicated the temporal or retroactive reach of the amended statute? Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 38-39 (2001). If not, is the amendment procedural or substantive in nature?  Only those amendments that are procedural in nature may be applied retroactively. Id. And finally, if the statute is procedural, does it have a “retroactive impact?” Commonwealth Edison, 196 Ill. 2d at 38-39. Absent retroactive impact, the amended statute will apply. In the case at bar, we agree with the circuit court that the amendments were substantive in nature, not procedural, and are therefore not retroactive.

5 Appellate Cases Posted 5-19-17

1.        Public Housing Vouchers (Section 8): Due Process:  Reversed:   Common law writ of certiorari is used to obtain circuit court review of an administrative decision when the administrative agency's enabling statute does not expressly adopt the Administrative Review Law  and provides no other method for reviewing the agency's decisions. The procedural due process requirements of a pretermination hearing involving welfare benefits are: (1) timely and adequate notice detailing the reasons for termination; (2) an opportunity to appear at the hearing, present evidence and oral argument and confront and crossexamine adverse witnesses; (3) the right to be represented by counsel; (4) a right to a decision rendered by an impartial decisionmaker; (5) a right to have that decision based solely on rules of law and evidence presented at the hearing; and (6) a right to a statement by the decisionmaker setting forth the reasons for the decision and the evidence upon which it was based. Hall, J.

No. 2017 IL App (1st) 153615   Tolliver v. Housing Authority of the County of Cook  Filed 05-19-17 (MGB)



Petitioner appeals from a judgment of the circuit court affirming a decision of the respondent the Housing Authority of the County of Cook (HACC) terminating her federally subsidized housing voucher she was receiving pursuant to the Section 8 Housing Choice Voucher Program. Petitioner contends the HACC violated her due process rights by failing to provide her with proper notice required under federal law before terminating her participation in the HCV Program. We agree. A review of the HACC's two termination letters clearly reveal that they failed to comply with the notice requirements of the Federal Code regulations or the Supreme Court's mandate in Goldberg. The first letter merely alleged that the petitioner "failed to report income from the Diamond Detective Agency." The letter is devoid of the dates on which the alleged unreported income was earned or any dollar amounts, much less any calculations or underlying data. Similarly, the second termination letter alleged, "You failed to report your return to work at Diamond Detective Agency following your layoff periods in 2009 through 2012." Again, this letter is devoid of any specific dates on which the alleged unreported income was earned or any dollar amounts. Accordingly, for the reasons set forth above, we reverse the order of termination and the judgment of the circuit court. We order the HACC to reinstate the petitioner's housing voucher instanter. We remand the matter to the hearing officer to determine what, if any, overpayments were made to the petitioner. If a repayment agreement is required, the hearing officer shall consider the petitioner's ability to pay and create a reasonable repayment plan.

2.   Insurance Coverage: Construction: Affirmed:  In determining whether a cause of action falls within or potentially within an insurance policy's coverage, a court is not limited to the allegations in the complaint.  Under certain circumstances, it is proper for the court to examine evidence beyond that contained in the underlying complaint to determine the insurer’s duty to defend.  One such circumstance is where the insurer possesses knowledge of true but unpleaded facts that, when taken together with the allegations in the complaint, indicate that the claim is within or potentially within the policy coverage.  Insurance Claim note regarding subcontractor's involvement in work, taken together with the well plead facts of the complaint and  counter-complaint, were sufficient to bring the claim within, or potentially within the coverage of Pekin. Summary Judgment finding duty to defend, Affirmed.    Hall , J.

No. 2017 IL App (1st) 160200   Pekin Insurance Company v. AAA-1 Masonry & Tuckpointing, Inc. Filed 05-19-17 (MGB)

Injured worker sued AAA, which had issued Alpha, which was not a named defendant, a subcontract for masonry work. Pekin policy provided coverage for additional insureds if the same was required by the contract, and then only for the vicarious acts of the primary insured, not the negligence of the additional insured. Alpha's policy with Pekin named AAA as an additional insured. Pekin filed a Declaratory Judgment seeking a finding it had no duty to defend AAA. Scottsdale, AAA's insurer, intervened and filed a counter-claim against Pekin asserting Pekin owed a duty to defend and was required to reimburse Scottsdale for its expenses in defending AAA. According to Pekin's claim investigation, it was informed that “(1) Alpha loaded bricks, mortar and an I-beam onto a swing stage scaffolding; (2) Alpha raised the swing stage scaffolding from ground level; (3) and that during transit, the scaffolding shifted , causing an I-beam to come loose and fall forward, striking the left hand/forearm of Piekutowski.” Piekutowski’s complaint alleged that his injuries were proximately caused by careless or negligent acts, which included in pertinent part: failing to safely place or operate scaffolding, failing to adequately secure the scaffolding, and allowing the scaffolding to be inadequately secured. Piekutowski raised his allegations solely against the named defendants; however, when read in conjunction with Pekin’s claim note and the terms of the Subcontract, they create the possibility that AAA could be found liable for Piekutowski’s injuries based on Alpha’s careless or negligent operation of the swing stage scaffolding. Affirmed.

3.     Mechanics Liens: Mortgage Foreclosure: Lis Pendens Doctrine:  Reversed and Remanded:   The purpose of the doctrine of lis pendens is the avoidance of endless litigation of property rights precipitated by the transfer of interests in the property after litigation has begun. The doctrine  is meant to protect innocent subsequent purchasers.  Mortgagor, which contracted with plaintiff, and served a Section 34 plaintiff to proceed with mechanics lien action within 30 days or forfeit that claim, was not a bona fide innocent third party purchaser entitled to invoke the doctrine of lis pendens.  Burke.  J.

No. 2017 IL App (2d) 160359   Lake County Grading Company, LLC v. Forever Construction, Inc.    Filed 05-19-17 (MGB)


Mortgagor foreclosed on warehouse, which was destroyed by fire prior to confirmation of the sale to Mortgagor.  City of Waukegan, on behalf of Mortgagor,  hired plaintiff (LCG)  to demolish the building.  Plaintiff filed a mechanic's lien. Mortgagor served demand on plaintiff pursuant to Section 34 of Mechanic's Lien Act, to pursue that claim within 30 days for forfeit the lien.  Plaintiff sued Mortgagor and its successor to enforce the lien. Trial court dismissed the mechanic's lien action, finding plaintiff should have intervened in the mortgage foreclosure action prior to confirmation, and the the doctrine of lis pendens extinguished the lien claim. We hold that (1) we have jurisdiction over the appeal and LCG has not forfeited its arguments; (2) Waukegan Savings was not a bona fide innocent third-party purchaser, because, through its conduct, it induced LCG to perform the work and file this separate action; (3) LCG alternatively had a right to intervene in the mortgage foreclosure action but was not required to do so; and (4) the legal remedy of a statutory mechanic’s lien precluded an equitable lien as a potentially viable alternative claim for LCG. Accordingly, we reverse and remand.

4.    Sexually Violent Persons Committment Act: Affirmed: Where a committed person  in periodic review proceeding has not waived his right to file a Petition for Discharge under the SVPCA, yet has not filed a Petition for Discharge, the hearing to determine whether probable cause exists to warrant further proceedings on the issue of whether a person remains a SVP consists only of a review of the reexamination report and arguments of the parties.  In order for a committed person to obtain an evidentiary  hearing to determine if he is still a sexually violent person, he must present evidence that he no longer meets the elements for commitment in that he (1) no longer has a mental disease or (2) is no longer dangerous to others 5 because his mental disorder no longer creates a substantial probability that he will engage in acts of sexual violence.  Holdridge,  J.

No. 2017 IL App (3d) 150613  In re Commitment of Galba  Filed 05-19-17 (MGB)


Respondent maintains that his progress in treatment, acknowledged by Dr. Gaskell, was sufficient to establish probable cause that he was no longer a SVP. We disagree. While there is no dispute that respondent had progressed in his therapy, there is also no dispute in the record that he remains a SVP. Dr. Gaskell took respondent’s treatment progress into account, but concluded that respondent’s progress in treatment was “not considered to be sufficient to reduce his substantial risk for sexually violent reoffending.” The record was uncontroverted that respondent was less than halfway through his prescribed treatment program and continued to experience inappropriate sexual fantasies over which he struggled to control. The evidence readily established that respondent continued to suffer from a mental disorder and that his mental disorder continued to create a substantial probability that he will engage in acts of sexual violence. Therefore, we hold that the 6 circuit court did not err in granting the People’s motion for a finding of no probable cause to warrant an evidentiary hearing.


5.    Civil Forfeiture Act: Excessive Fines:  Denial of Forfeiture, Affirmed: Civil forfeiture proceedings serve, at least in part, to punish the owner of the property subject to forfeiture and are therefore subject to the excessive fines clause, even though the forfeiture may also serve a remedial purpose. However, a punitive forfeiture violates the excessive fines clause if it is grossly disproportional to the gravity of the  offense for which it is forfeited. Our  supreme court has adopted the following nonexhaustive list of three factors to be considered in assessing whether a forfeiture constitutes an excessive fine: (1) the inherent gravity of the offense compared to the harshness of the penalty; (2) whether the property was an integral part of the commission of the crime; and (3) whether the criminal activity involving the property was extensive in terms of time and/or spatial use.   Pope, J.

No. 2017 IL App (4th) 160595   People v. One 2005 Acura RSX   Filed 05-19-17 (MGB)

The State filed its complaint for the forfeiture of claimant’s vehicle  solely on the basis of the vehicle having been used in  the commission of the offense of possession of burglary tools.  In an affidavit in support of forfeiture, Sergeant Robert Cherry of the Normal police department reported seizing claimant’s vehicle on July 6, 2015. In an addendum to the affidavit in support of forfeiture, Sergeant Cherry stated claimant drove his vehicle to three car washes on June 23, 2015, where he “used a vending machine key to open the coin vault of the car wash machines.”  According to the court, “[t]he parties stipulated that the subject vehicle, a 2005 Acura RSX, is subject to forfeiture under Article 36.” The court identified the sole issue as “whether or not forfeiture would violate the excessive fines clause of the [eighth] [a]mendment to the United States Constitution.”   Clearly, claimant engaged in illegal conduct. He pleaded guilty to a misdemeanor theft charge. Although the record does not disclose the sentence imposed in the criminal case, the Constitution protects against excessive punishments for wrongdoing. Applying the three factors to the circumstances in this case, we find forfeiture of claimant’s vehicle would violate the excessive fines clause.


2 Appellate Cases Posted 5-17-17 

1. Criminal Law: Affirmed: Prior conviction for aggravated unlawful use of weapon, otherwise void under Aguilar decision but never vacated by defendant, properly used as a predicate offense for unlawful use or possession of a firearm charge and conviction for such affirmed. Pucinski, J. (Hyman, J., sp. concurring).

No. 2017 IL App (1st) 123563  People v. Spivey  Filed 5-17-17 (TJJ)


Following a bench trial, defendant Donald Spivey was found guilty of two counts of unlawful use of a weapon by a felon (UUWF) and two counts of aggravated unlawful use of a weapon (AUUW). The trial court merged the convictions and sentenced  defendant to four years’ imprisonment, followed by two years of mandatory supervised release (MSR), for his conviction on count two for UUWF. Initially on appeal, we vacated defendant’s UUWF conviction under count two “because ‘the State did not  prove an essential element of the offense where it alleged in the charging instrument and proved at trial a predicate offense that has been declared unconstitutional and void ab initio.’ ” People v. Spivey, 2015 IL App (1st) 123563-U, ¶¶ 21, 25
(quoting People v. McFadden, 2014 IL App (1st) 102939, ¶ 43, aff’d and rev’d in part, 2016 IL 117424). On September 28, 2016, the supreme court denied the State’s petition for leave to appeal but entered a supervisory order directing us to vacate our  judgment and to reconsider the matter in light of People v. McFadden, 2016 IL 117424, to determine if a different result is warranted. People v. Spivey, No. 119492 (Ill. Sept. 28, 2016). For the reasons that follow, we conclude that a different result is warranted.

2. Criminal Law: Affirmed, fines and fees modified: Offense of armed habitual criminal was not unconstitutional, and predicate felony of attempt armed robbery qualified as a "forcible felony" so as to operate as a proper predicate felony for offense of armed habitual criminal. Pucinski, J.

No. 2017 IL App (1st) 150146  People v. Brown  Filed 5-17-17 (TJJ)


Following a bench trial, defendant Dewayne Brown was convicted of the offense of armed habitual criminal. He was sentenced to 8 years’ imprisonment and was assessed various fines, fees, and costs. Defendant appeals his conviction, arguing that (1) he  was not proved guilty of the offense of armed habitual criminal beyond a reasonable doubt; (2) the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2012)) is facially unconstitutional because it has the potential to criminalize wholly innocent  conduct; and (3) the fines, fees, and costs order must be corrected to apply his presentence incarceration credit toward several fines. For the reasons set forth herein, we affirm defendant’s conviction. We do, however, correct the fines, fees, and costs
order.

5 Appellate Cases Posted 5-16-17

1. Real Estate Tax Deeds: Reversed and remanded: Trial court erred in refusing to hold evidentiary hearing on petition to intervene filed by persons who alleged that they lived in the building which purchaser of tax deed was seeking possession of. Neville, J.

No. 2017 IL App (1st) 152951  In re Application of the County Treasurer  Filed 5-16-17 (TJJ)


After the circuit court entered an order directing the county clerk to issue a tax deed to Alliance Partners, Ltd., two occupants of the property subject to the deed filed a petition to intervene, alleging that they received no notice of the proceedings for a tax  deed and asking the court to vacate the order for a tax deed. We hold that the trial court abused its discretion when it dismissed the petition to intervene without holding an evidentiary hearing and the court erred by dismissing the petition to vacate the order  for a tax deed without an evidentiary hearing. We reverse and remand for further proceedings in accord with this order.

2. Election Law: Affirmed: Trial court properly reversed election board decision striking nominees from ballot, as fact that candidates' statements of economic interest were undated and did not list the particular municipality did not authorize removal from ballot. Mason, J.

No. 2017 IL App (1st) 170486  Guerrero v. Municipal Officers Electoral Board of the Village of Franklin Park  Filed 5-16-17 (TJJ)


The Municipal Officer Electoral Board of Franklin Park (Board), its members and objector Robert J. Godlewski (collectively, respondents) appeal from an order of the circuit court of Cook County reversing the Board's final decision, which determined that  petitioners, candidates for various offices in the Village of Franklin Park, were ineligible to appear on the ballot for the April 4, 2017 municipal election. The circuit court ruled that certain defects common to petitioners' respective statements of economic  interests did not invalidate their candidacies and directed that petitioners' names appear on the ballot. We affirm.

3. Criminal Law: Reversed: Evidence was insufficient to find unfit defendant "not not guilty" of aggravated criminal sexual abuse, where defendant had 48 IQ and the executive function capacity of a three-year-old, thus, under the evidence presented, prohibiting proof beyond a reasonable doubt that defendant acted for the purpose of sexual gratification or arousal in grabbing another's penis, a necessary element of the offense. Hutchinson, J.

No. 2017 IL App (2d) 150390  People v. Mayo  Filed 5-16-17 (TJJ)


Defendant, Eduardo Mayo, appeals from the judgment of the circuit court of Kane County finding him “not not guilty” of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)) and battery (720 ILCS 5/12-3(a)(2) (West 2012)). Because the evidence was insufficient to support the trial court’s finding as to either offense, we reverse.

4. Criminal Law/Forfeiture: Vacated and remanded: Where out-of-state defendant was arrested and charged with narcotics offenses, and posted bond under circumstances that gave State notice of address defendant would be staying at in this State during pendency of case, notice sent to defendant at out-of-state address regarding sought for forfeiture of defendant's vehicle was insufficient and forfeiture order vacated. Zenoff, J.

No. 2017 IL App (2d) 151203  People v. Pena  Filed 5-16-17 (TJJ)


Defendant, Isidro Pena, appeals the trial court’s order that denied his “Motion for Return of Property.” Defendant sought to vacate the administrative forfeiture of certain property, arguing that he did not receive notice of the forfeiture. The court held that the  State’s notice was sufficient and denied the motion. Defendant contends that the State’s effort to notify him of the proceedings did not meet constitutional standards. We vacate and remand.

5. Criminal Law: Affirmed: Where jury in first degree murder case signed "not guilty" verdict form for first degree murder, "guilty" of second degree murder, and "not guilty" of aggravated discharge of a firearm, entry of verdict of guilty of second degree murder was not plain error in face of defense counsel's failure to object. O'Brien, J. (McDade, J., dissenting).

No. 2017 IL App (3d) 140514  People v. Brown  Filed 5-16-17 (TJJ)


The defendant argues that his conviction of second degree murder must be vacated because a finding of not guilty verdict of first degree murder precluded a finding that he was guilty of second degree murder. The State argues that the jury mistakenly filled  out extra verdict forms. Also, the State argues that the defendant forfeited this issue on appeal because he failed to make a timely objection or include the issue in his posttrial motion and did not argue plain error.

3 Appellate Cases Posted 5-15-17

1. Criminal Law:  Affirmed in part, Vacated in part: Defendant’s statements fall short of a clear claim of ineffective assistance of counsel that would trigger the trial court’s duty to conduct a preliminary Krankel inquiry. “Mere awareness by a trial court that defendant has complained of counsel’s representation imposes no duty on the trial court to sua sponte investigate defendant’s complaint.” The simultaneous convictions of home invasion and residential burglary do not violate the one-act, one-crime rule, because (1) the criminal conduct that was the basis of those offenses consisted of multiple physical acts instead of precisely the same physical act; and (2) under the abstract-elements approach, residential burglary is not a lesser included offense of home invasion.  The State concedes that defendant’s conviction for aggravated unlawful restraint must be vacated pursuant to the one-act, one-crime rule because defendant’s action of unlawfully restraining the victim was inherent in the aggravated battery. We therefore vacate defendant’s conviction for aggravated unlawful restraint.  Gordon, J.


No. 2017 IL App (1st) 142297 People v. King Filed 5-15-2017 (ATH)


Following a bench trial, defendant Lavona King was found guilty of home invasion, residential burglary, aggravated battery, and aggravated unlawful restraint. On appeal, defendant contends that the trial court failed to conduct an inquiry pursuant to People v. Krankel into her claims that trial counsel “ignored” one witness and failed to impeach another. Defendant further contends that certain convictions must be vacated pursuant to the one-act, one-crime rule.

2. Administrative Review:  Affirmed:  Since there was no need to fill an unexpired term in order for the business of the Merit Board to continue, the authority of the sheriff to appoint an individual to an unexpired term cannot be implied as necessary to the Merit Board to perform its duties. Section 3-7002 of the Code did not authorize Sheriff Dart to appoint Mr. Rosales to less than a six-year term. His participation in the hearing and the decision of the Merit Board in this case requires that the Merit Board’s decision be vacated and remanded for a hearing before a legally constituted Merit Board as the circuit court ordered. The sheriff has no powers conferred by the Illinois Constitution, and there are no provisions in section 3-7002 of the Code for the making of interim appointments. In the absence of any constitutional, statutory, or inherent power, the Cook County board had no home rule authority to approve Sheriff Dart’s interim appointment of Mr. Rosales to the Merit Board.  Hall, J.

No. 2017 IL App (1st) 143684-B Taylor v. Dart Filed 5-15-2017 (ATH)

 

Answers to the following certified questions: “Is a Cook County Sheriff’s Merit Board member that was appointed on June 2, 2011 to serve a term which expired on March 19, 2012, a lawfully appointed member of the Merit Board when he presided over Percy Taylor’s Merit Board Hearing on February 27, 2013? If the Merit Board member was not lawfully appointed to the Merit Board, does the decision of October 30, 2013 remain valid or is it rendered void?”

3. Underinsured Motorist Coverage: Affirmed:  Where the terms of an insurance policy are clear and unambiguous, they must be enforced as written unless doing so would violate public policy.  We conclude the box truck plaintiff was driving at the time of the accident was not a “private passenger automobile” within the meaning of section 143.13a of the Code. The policy at issue in this case is a commercial automobile liability policy covering vehicles of a company. Accordingly, because the statutory prohibition does not apply to this policy, we conclude the step-down limits do not contravene Illinois law or public policy. Goldenhersh, J.


No. 2017 IL App (5th) 160110 Worley v. Fender Filed 5-15-2017 (ATH)


Plaintiff argues on appeal the alleged selection of lower step-down underinsured motorist limits ($500,000 for directors, partners, officers, or owners of Davis & Sons or a family member who qualified as an insured, and $40,000 for any other person who qualified as an insured) is void because
the limits are based solely on status.

3 Appellate Cases Posted 5-12-17

1. Criminal Law:  Reversed in part, affirmed in part:  To prove that a defendant had the intent to promote or facilitate the crime, the State must present evidence that establishes, beyond a reasonable doubt, "that (1) defendant shared the criminal intent of the principal or (2) there was a common criminal design." State advanced its case on the theory that there was a "common criminal design" by which defendant showed the intent to promote or facilitate the killing. The common design rule holds that "where two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts." Absent other circumstances indicating a common design, presence at the scene and flight therefrom do not constitute prima facie evidence of accountability. The State failed to establish that there existed a common criminal design between defendant and the multitude of armed partygoers who participated in the shooting melee that resulted in the victim’s death. Where there are multiple shooters at a party, the State must show that the victim’s unidentified shooter shared in defendant's alleged criminal design thereby establishing the "common" link between them.  It is undisputed that, at the time of the defendant's AHC conviction, he had two prior convictions for qualifying predicate offenses. As those convictions had not been vacated at the time of the defendant's November 2011 arrest, they could properly serve as predicate convictions for his AHC conviction. Cunningham, J.


No. 2017 IL App (1st) 113085 People v. Cowart Filed 5-12-2017 (ATH)

 

Following a jury trial, the defendant was convicted of first-degree murder under a theory of accountability. Following a simultaneous bench trial, defendant was also convicted of being an armed habitual criminal (AHC). On appeal, this court reversed both the first-degree murder conviction and the AHC conviction. Our supreme court then issued a supervisory order directing us to reconsider that judgment in light of its decision in People v. McFadden.  We now affirm the defendant's AHC conviction, reverse the defendant's first-degree murder conviction, and remand for resentencing. 

2. Criminal Law:  Affirmed:  Under McFadden, a prior AUUW felony conviction, although subject to vacatur under Aguilar, may still serve as a predicate felony for UUWF, until that prior felony has been vacated. There is no dispute that, at the time of the defendant's arrest and conviction in this case, his prior felony conviction for AUUW had not been vacated. Thus, his felon status remained, and the prior AUUW felony could support his UUWF conviction.  We further conclude that the pat-down search was justified under the Terry standard, where (1) the police officers encountered two individuals at night in a vehicle that matched the description of a recently stolen car and (2) the defendant's movements in the car supported a reasonable suspicion that he was armed or had access to a weapon in the vehicle.  Cunningham, J.


No. 2017 IL App (1st) 130203-B People v. Richardson Filed 5-12-2017 (ATH)


Following a bench trial the defendant was convicted of unlawful use of a weapon by a felon (UUWF). On appeal, the defendant argues that: his prior conviction for aggravated unlawful use of a weapon (AUUW), premised on a statutory provision held unconstitutional by our supreme court, could not serve as a predicate felony to support his UUWF conviction; the State's indictment for the charge of UUWF "failed to state a cause of action" because the defendant's predicate AUUW felony was based on an unconstitutional statute; and the arresting police officer's pat-down  search of the defendant was unconstitutional.  Affirmed.

3. Criminal Law:  Reversed and Remanded:  The defendant contends that the final two-thirds of the video recording of his interview should have been redacted because it was irrelevant and more prejudicial than probative. The statements in the final two-thirds of the interview were not relevant, as the defendant did not change his statement or admit to the offenses, and were more prejudicial than probative. As a result, this portion of the video served only to paint the defendant as a “cold-blooded” murderer, bolster the State’s case, and disparage the defendant. We, therefore, find that defense counsel was ineffective in failing to move to redact or otherwise exclude the final two-thirds of the video. Holdridge, J.

No. 2017 IL App (2d) 141251 People v. Hardimon Filed 5-12-2017 (ATH)


The defendant appeals from his convictions for first degree murder and unlawful possession of a weapon by a felon (UPWF). On appeal, the defendant argues that he received ineffective assistance of trial counsel and his UPWF conviction must be reversed.

4 Appellate Cases Posted 5-11-17

1. Estates:  Affirmed:  It is clear from the evidence presented that Selfreliance entered into the contract in good faith, without taking advantage of its position and in ignorance of Anna’s mental incapacity.  Selfreliance was entitled to rely upon the legal presumption that every person is sane until the contrary is proven.  The trial court correctly found that there was no question of material fact regarding Anna’s competency on the date she opened the account at Selfreliance.  The trial court also correctly held that the account agreement should be not be rescinded where there was no evidence in the record to show that respondent knew or should have known of Anna’s incompetency.  We find no support for petitioner’s contention that respondent’s knowledge of Anna’s incompetency is irrelevant or that Selfreliance should return the wrongfully converted funds.  Burke, J.

No. 2017 IL App (1st) 160641  Epstein v. Bochko Filed 5-11-12017 (ATH)

Two caregivers of the decedent obtained power of attorney and opened a joint bank account with the decedent, Anna Polachanin (Anna), as the primary account holder at Selfreliance Ukrainian American Federal Credit Union (Selfreliance).  Over the next few months, the two caregivers deposited much of Anna’s life savings into this joint account from her other bank accounts. The money was then wired from the joint account at Selfreliance to bank accounts in Ukraine. In October 2008, a licensed psychiatrist evaluated Anna and concluded that she had dementia and that her dementia had been present for several years. The public guardian petitioned the Cook County circuit court for a citation to recover assets from the two caregivers, Selfreliance, and others. Shortly thereafter, Anna died, and the Cook County public administrator (petitioner) was appointed to supervise her estate and continued to pursue the petition. The court granted Selfreliance’s motion for summary judgment finding that there was no evidence respondent knew or should have known of Anna’s mental incapacity at the time she opened the joint bank account.

2. Civil Law:  Reversed and Remanded:  When an insured alleges tortious conduct by its agent, although the cause of action accrues at the time of the breach, the statute of limitations is subject to tolling by application of the discovery rule. Accordingly, commencement of the statute of limitations is delayed until the plaintiff knows or reasonably should know of his injury and that it was wrongfully caused. Therefore, the counterclaim and complaint were not time-barred as the cause of action accrued upon denial of coverage.  Cobbs, J.

No. 2017 IL App (1st) 161071 American Family Mutual Insurance Company v. Krop Filed 5-11-2017 (ATH)

 

Plaintiff American Family Mutual Insurance Company brought a complaint for declaratory judgment against Walter Krop and Lisa Krop (collectively, the Krops) seeking a declaration that the Krops were not entitled to coverage or protection under its home insurance policy procured in 2012.  The Krops then brought a counterclaim against American Family and a third-party complaint against American Family’s agent, Andy Vargas.  Both American Family and Vargas moved to dismiss the counterclaim and third-party complaint pursuant to 2-615 and 2-619. The trial court granted the motion with respect to 2-619 and made no rulings as to 2-615. 

3. Criminal Law:  Affirmed:  Grounds for finding parental unfitness under section 1(D) of the Adoption Act stand independently of each other. Accordingly, when a trial court makes a finding of unfitness under one of its grounds, we may affirm that finding of unfitness regardless of the court’s findings with respect to any other ground asserted in the petition at issue. Taking into account respondent’s personal circumstances, her refusal to participate in and complete her services, her lack of interaction with her service providers, her continued (and elevated) drug use, and her failure to maintain regular visitation with Nathan and Nicholas more than sufficiently demonstrate that she has not maintained a reasonable degree of responsibility toward their welfare. Therefore, we find that the trial court’s determination that she was unfit under section 1(D)(b) was not against the manifest weight of the evidence. Fitzgerald Smith, J.

No. 2017 IL App (1st) 162101 In re Nicholas C. Filed 5-11-2017 (ATH)

 

Mother/respondent-appellant appeals from the Cook County circuit court’s order in the instant cause finding her to be unfit under section 50/1(D)(b) of the Adoption Act and ordering the termination of her parental rights over Nicholas C. and Nathan W., her minor children.

4. Civil Law:  Reversed:  We hold that the Board erroneously determined that Dean was required to indicate his independent status on his nominating petitions. Neither section 10-3 nor section 10-4 of the Election Code (Code) contains such a requirement. As appellees have identified no other alleged deficiencies in Dean’s nominating papers, we find that the Board erroneously struck his name from the ballot. Cobbs, J.

No. 2017 IL App (1st) 170404 Dean v. Smith Filed 5-11-2017 (ATH)

 

Petitioner Deyon L. Dean, a candidate for Riverdale village president in the April 4, 2017, election, appeals from an order of the circuit court, confirming a decision of the Municipal Officers Electoral Board of the Village of Riverdale (Board), which sustained objections to his nomination papers. Dean contends that the Board erroneously concluded that section 10-3 of the Code, in conjunction with section 10-4 of the Code, requires an independent candidate to indicate his or her independent status on nominating petitions. In light of the impending election date, we issued an order on March 30, 2017, reversing the circuit court, directing that Dean’s name be included on the ballot, and indicating that an opinion would follow.


1 Appellate Case Posted 5-10-17

1.     Criminal Law: Attempt: Jury Instructions:  Affirmed:   Failure to ask for Instruction at trial and to raise the issue in a postrial motion results in forfeiture of the issue. However, where instructional errors are so grave that they affect the requirements of a fair and impartial trial, the plain error doctrine set forth in Supreme Court Rule 451(c) provides an exception to the forfeiture rule. That rule states that substantial defects in criminal jury instruction “are not waived by failure to make 8 timely objections thereto if the interests of justice require.”  Goldenhersch, J.

No. 2017 IL App (5th) 120079-B   People v. Thompson   Filed 05-10-17 (MGB)



Defendant was convicted of attempt to procure anhydrous ammonia with the intent to manufacture methamphetamine  and tampering with anhydrous ammonia equipment. Defendant was sentenced as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of Corrections to 18 years in the Department of Corrections to be followed by 3 years of mandatory supervised release. In the first Appeal, State conceded the tampering conviction could not stand under the one-act, one-crime rule. Following that appeal, the Supreme Court found the admission of lay identification of defendant in a video was harmless error, reinstated the conviction and remanded to the Appellate Court to consider the issue of whether trial court erred in failing to instruct jury on "substantial step" as an essential element of attempt. The erroneous omission of a jury instruction only rises to the level of plain error when its omission creates a serious risk that the jury incorrectly co