Illinois Supreme and Appellate Court Case Summaries

By  Robert Clifford( RJC) ,Timothy J. Joyce(TJJ) and Jean Cocozza(JC),

    This page contains the current month's summaries, the most recent summaries provided first. 

Click on the case-name link to go directly to the full-text opinion.

Summary headings and authoring Justice (and separate opinion writers) in GREEN.

Case-name link in your browser's LINK COLOR.

Corrected or modified opinions noted by PURPLE headings.

Click on month and year for Supreme Court & Appellate Opinions (with Summaries) posted during December, 2014.

For the previous six months' summaries or to return to the Illinois Court Reports Home Page, click on the link below:

 Illinois Court Reports Home Page 

3 Appellate Cases Posted 1-14-15

1. Foreclosure/Service: Affirmed: Pursuant to the plain and unambiguous language of section 15-1505.6(a), the defendant's motion to quash was untimely and was thus properly dismissed.  Lavin, J.

No. 2015 IL App (1st) 133128   BAC Home Loans Servicing, LP v. Pieczonka    Filed 1-14-15 (RJC)

Defendant Jacek Pieczonka, also known as Jacob Pieczonka, appeals the judgment of the circuit court of Cook County denying his motion to quash service of process of a complaint to foreclose the mortgage on the home in which he lived. Defendant contends that the court erred in denying that motion because the record shows that substitute service of process on him did not strictly comply with the statutory requirements. He thus requests that we reverse the court's order and remand for further proceedings.

2. Employment/Municipalities/Jury trials: Affirmed: The jury's request for clarification on the meaning of the word "fired" presented a factual issue, and the trial court did not err in refusing to answer it. Further, the court's evidentiary rulings and jury instructions were not grounds for a new trial, defense counsel's comments during closing arguments were not prejudicial, and the jury's verdict was not against the manifest weight of the evidence. The evidence was conflicting, without a doubt, but when viewed in a light most favorable to the appellee, the jury's finding that the village did not terminate Cipolla because of her age and only used the budget as a pretext was not against the manifest weight of the evidence. Hyman, J.

No. 2015 IL App (1st) 132228   Cipolla v. The Village of Oak Lawn    Filed 1-14-15 (RJC)

The village manager of Oak Lawn told Diane Cipolla, a 12-year employee just shy of  her sixtieth birthday, that her position was being terminated to help close a budget gap that exceeded $1 million. But Cipolla believes the real reason was her age and claims her supervisor was heard
commenting on her age during a closed meeting of the village board of trustees only one day before the termination. Cipolla sued the village alleging age discrimination in violation of the Illinois Human Rights Act (775 ILCS 5/1-102(A) (West 2012)). After a four-day trial, the jury returned a verdict in favor of the village. After the trial court denied her motion for a new trial, Cipolla appealed.

3. Choice of Law: Reversed and remanded: The substantive law of Indiana should apply because Indiana has more significant contacts with the lawsuit, and policy reasons also support the application of Indiana law. Lavin, J.

No. 2015 IL App (1st) 132905   Denton v. Universal AM-CAN, Ltd.    Filed 1-14-15 (RJC)

Plaintiffs James and Theresa Denton, Illinois residents, filed a personal injury action against defendants Universal Am-Can, Ltd.; Universal Truckload Services, Inc.; David Lee Johnson and Louis Broadwell, LLC, among others, for a vehicular accident that occurred on an interstate highway in Jasper County, Indiana. When presented with defendants' choice-of-law motion for application of Indiana law, the circuit court instead ruled that Illinois law applied. On defendants' motion, the circuit court granted leave to file an interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) and certified the following question for our review: "Whether Illinois law or Indiana law should be applied to the issues of liability and damages in the present case." Contrary to the circuit court, we conclude that Indiana law governs the liability and damages issues in this case. We therefore reverse the judgment of the circuit court and remand for further proceedings consistent with our judgment.

3 Appellate Cases Posted 1-13-15

1. Insurance/Duty to Defend: Affirmed: Insurers must provide a defense for all cases where the bare underlying allegations, if proved, would render Illinois Tool individually liable. If Illinois Tool is alleged to be individually liable or liable both directly and as a successor, there is a duty to defend. The duty to defend is joint and several. If Illinois Tool is alleged to be liable solely as a successor, there is no duty to defend. Simon, J.

No. 2015 IL App (1st) 132350    Illinois Tool Works Inc. v. Travelers Casualty and Surety Company    Filed 1-13-15 (RJC)

At issue in this case is whether defendants, plaintiffs' former insurers, have a duty to defend plaintiffs in a multitude of cases brought by individuals that were allegedly injured as a result of exposure to harmful materials while welding or engaging in other building or maintenance activities. The trial court found that defendants have a duty to defend and that they should bear the entire cost. We affirm.

2. Criminal Law/Postconviction Petition: Reversed and remanded: Summary dismissal is appropriate only where the "petition is frivolous or is patently without merit." Defendant claims that he was denied his constitutional right to due process where Jeneary suborned perjury when Hammond testified that Murrell was not armed with a gun at the time of the shooting. At the first stage, the petition's facts are taken as true.  "A conviction obtained by the knowing use of false testimony will be set aside if there is a reasonable likelihood that the false testimony could have affected the verdict." (Internal quotation marks omitted.) Because Hammond was the only eyewitness to the actual shooting, other than defendant, we find his sworn allegation that he "was told not to say that he (Murrell) had a gun" establishes the gist of a constitutional claim. McDade, J. with Lytton, J. specially comcurring.

No. 2015 IL App (3d) 130091   People v. Haynes    Filed 1-13-15 (RJC)

Defendant, Terrence D. Haynes, filed a pro se petition for postconviction relief in which he claimed the prosecution suborned perjury of a proffered witness during his criminal trial. The petition was summarily dismissed, and defendant appeals. We reverse and remand for secondstage

3. Juvenile/Neglect: Affirmed: In this case, respondent's caseworker opined that respondent was dispositionally unfit. The dispositional report and its attachments support this conclusion. Specifically, they reveal respondent: (1) has homicidal ideations towards A.T., (2) has a history of substance abuse and tested positive for THC while pregnant with her second child, (3) has a history of domestic violence with A.T.'s father, (4) has multiple criminal convictions, (5) is homeless and unemployed, and (6) is not taking her prescribed medication. In light of these facts, we cannot say that the trial court's dispositional unfitness finding is against the manifest weight of the evidence. McDade, J. 

No. 2015 IL App (3d) 140372    In re A.T.    Filed 1-13-15 (RJC)

The State filed a neglect petition on behalf of A.T. alleging A.T's mother, Mariah S. (respondent), provided an environment injurious to the minor's welfare. After a finding of neglect and a dispositional hearing, the court found respondent unfit to care for A.T. Respondent appeals the trial court's finding of her dispositional unfitness. We affirm.

3 Appellate Cases Posted 1-12-15

1. POA/Public Guardian/Guardianship: Affirmed: Here, Newton was personally served with the petition, and she does not contest the validity of that service. Accordingly, the trial court had personal jurisdiction over her. A plain reading of the petition reveals that it is the substantive equivalent of a citation to recover assets. Similarly, the court order accompanying the petition was the functional equivalent of a summons. It commanded Newton to appear and account before the court on a specified date, time and place.  The various notices issued here more than comport with basic due process requirements. Delort, J.

No. 2015 IL App (1st) 140798    In re Estate of Rodden    Filed 1-12-15 (RJC)

In his waning years, Angus Rodden, age 93, granted his friend and caretaker, Audrey Newton, a power of attorney over his health care and personal estate. Robert Harris, the public guardian of Cook County, apparently believing Newton was not being cared for in an optimal manner, filed a petition for guardianship over Rodden in the circuit court of Cook County. The court granted that petition. Newton appeared at the hearing on the guardianship and resigned as Rodden’s agent under the power of attorney. These resignations were in writing and filed with the court below. After acquiring guardianship, the public guardian investigated Rodden’s situation and discovered that Newton had written checks from Rodden’s account to herself totaling $17,000. The public guardian then filed a two-count pleading entitled “Petition for Accounting under Power of Attorney for Property.” The petition is largely based on several interrelated provisions of the Illinois Power of Attorney Act. 755 ILCS 45/1-1 et seq. (West 2012). Newton twice failed to appear in court to respond to the petition, the court entered an order finding that Newton had breached her fiduciary
duty to Rodden and imposed a judgment against her for $17,000.

2. Employment/Admin. Review: Reversed and administrative decision reinstated: The plaintiff was discharged for violating her employer's rule against insubordination. The plaintiff admitted that she knew Casino Queen had a rule against insubordination, and there is no real dispute that the rule is reasonable. In addition, there is no dispute that the plaintiff was not warned previously about insubordination. The only question is whether her conduct harmed her employer.  The realistic potential for serious harm to result from the plaintiff's refusal to comply with an instruction to remedy this situation is readily apparent. In sum, our review of the record as a whole does not leave this court with the firm impression that the Board of Review made a mistake. As such, we agree with the defendants that the circuit court erred in reversing the Board's determination. Chapman, J.

No. 2015 IL App (5th)  140798    Wise v. The Department of Employment Security    Filed 1-12-15 (RJC)

The plaintiff, Clara E. Wise, was discharged from her employment with Casino Queen for insubordination. The Department of Employment Security denied the plaintiff's claim for unemployment insurance benefits. On a petition for administrative review, the circuit court reversed the final administrative decision, finding that there was no harm to the employer. The defendants, Casino Queen, Inc., the Department of  Employment Security and its director, the Board of Review of the Department of Employment Security (Board of Review or Board), and members of the Board of
Review, appeal. They argue that the circuit court incorrectly concluded that the decision of the Board of Review was clearly erroneous. We reverse the decision of the circuit court and reinstate the decision of the Board of Review.

3. Service of Process/Publication/Affidavits: Affirmed: Plaintiff showed that it made a diligent inquiry and set forth specific actions it took to determine defendant's whereabouts sufficient to justify service by publication. The plaintiff's affidavits were based on the affiant's personal knowledge and set forth the specific actions taken to determine defendant's whereabouts to justify service by publication in accordance with section 2-206(a) of the Code and local rule 7.3. 735 ILCS 5/2-206(a) (West 2010); Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996). Also, the plaintiff did not improperly fail to state defendant's residence in its affidavit for service by publication because there is no evidence in the record that plaintiff knew where defendant resided. Harris, J.

No. 2015 IL App (1st)  132070    Bankunited v. Velcich    Filed 1-12-15 (RJC)

Plaintiff, BankUnited brought this mortgage foreclosure action against defendant, Dino Velcich, who, along with codefendant Maria Nascimento,1 executed a promissory note with plaintiff secured by a mortgage on property commonly known as 2707 West Medill Avenue, in Chicago, Illinois. The circuit court entered an order of default and a judgment of foreclosure and sale. After the sale of the property, the circuit court entered an order confirming the sale. Within 30 days of the entry of the order of the confirmation of the sale, defendant appeared and filed an emergency motion to quash service, which the circuit court denied. Defendant raises two issues for our review: (1) whether the affidavits plaintiff relied upon to effectuate service of process upon him were based on the affiant's personal knowledge and sufficiently set forth the particular actions taken to serve him to satisfy section 2-206 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-206 (West 2010)) and local rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)); and (2) whether plaintiff's affidavit of service by publication speaks the truth and complies with section 2-206 of the Code (735 ILCS 5/2-206 (West 2010))2 where plaintiff stated defendant's residence was unknown despite a diligent inquiry.

5 Appellate Cases Posted 1-9-15

1. Juvenile Court Act/Habitual Offender: Criminal Law: Affirmed: In People ex rel. Carey v. Chrastka, 83 Ill. 2d 67 (1980), our supreme court held that sentencing a habitual juvenile offender to a mandatory minimum sentence of commitment until the age of 21 years did not violate the eighth amendment and the proportionate penalties clause provides co-extensive protections. As an appellate court, we are required to follow supreme court precedent on an issue "unless and until that conclusion is revisited by our supreme court or overruled by the United States Supreme Court." Unless and until our supreme court decides to revisit its holding in Chrastka, we must follow its conclusion and affirm the judgment of the circuit court. Hyman, J.

No. 2015 IL App (1st) 142421    In re Shermaine S.    Filed 1-9-15 (RJC)

Respondent contends the habitual offender provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-815 (West 2012)) is unconstitutional under the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and the proportional penalties clause of the Illinois Constitution. (Ill. Const. 1970, art I., § 11). The gist of his argument is that (i) the mandatory sentencing provision violates the eighth amendment by precluding the sentencing court from taking into consideration individualized factors about the minor, including the offender's youth and attendant characteristics as delineated by the United States Supreme Court in Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2468 (2012), and (ii) taking away the sentencing court's discretion violates the proportionate penalties clause of the Illinois Constitution, which mandates a court consider rehabilitation in imposing a sentence. We are compelled to affirm.

2. Civil ProcedureMTD/Affidavits: Affirmed: The circuit court properly applied the defense of laches. Osler lacked the required diligence in pursuing the present action.  Moreover, there is no question that Miller suffered prejudice as a result of Osler's delay in filing suit.  Miller's affidavit was sufficient to support his argument that he was prejudiced by Osler's delay in filing suit in the state of Indiana until 12 days after the consent decree expired and an additional 3-year delay in filing suit in the circuit court of Cook County, which explicitly retained jurisdiction over the action for the purposes of enforcing the consent decree. McBride, J.

No. 2015 IL App (1st) 133899   Osler Institute, Inc. v. Miller    Filed 1-9-15 (RJC)

Plaintiff Osler Institute, Inc., appeals from the circuit court's granting of defendant Richard Miller's motion to dismiss Osler's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)) and the circuit court's denial of Osler's motion to strike an affidavit. On appeal, Osler argues that: (1) the circuit court erred by granting Miller's section 2-619(a)(9) motion to dismiss on the basis of laches; and (2) the circuit court erred by denying Osler's motion to strike Miller's affidavit in support of his section 2-619(a)(9) motion to dismiss. We affirm.

3. Consumer Fraud Act/Subpoena: Affirmed: It is undisputed that the defendant failed to comply with the subpoena. Accordingly, under section 6 of the Consumer Fraud Act (815 ILCS 505/6 (West 2010)), the Attorney General was entitled to summary judgment and the injunctive relief granted by the trial court. Schostok, J.

No. 2015 IL App (2d) 140523    People v. DiCosola    Filed 1-9-15 (RJC)

On December 9, 2011, the Attorney General filed a complaint against the defendant, Michele DiCosola, for his failure to comply with an investigative subpoena that the Attorney General issued to him pursuant to sections 3 and 4 of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/3, 4 (West 2010)). The complaint sought injunctive relief. The trial court granted summary judgment in the Attorney General’s favor on the complaint. The defendant appeals from that order. We affirm.

4. Criminal Law/Pleas: Vacated and remanded with directions: Whether to apply Rule 605(b) or 605(c) depends on the character of the plea and the agreement, if any, underlying it, and not on the defendant’s subjective understanding of his plea. McLaren, J.

No. 2015 IL App (2d) 140173    People v. Axelson    Filed 1-9-15 (RJC)

The State confesses error and agrees that the cause must be remanded. The parties disagree, however, on the proper procedure on remand. Defendant contends that, because he entered a nonnegotiated plea, Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) applies. The State contends that defendant’s plea was negotiated, so that Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001) applies. We agree with the State and remand the cause with directions.

4. Workers' Compensation: Affirmed and remanded: The employer's due process rights were not violated and the treatment records of Dr. Nam and Dr. Silver were properly admitted pursuant to section 16 of the Act (820 ILCS 305/16 (West 2008)). the records and reports of a claimant's treating physician, which are certified as true and correct, are admissible "as evidence of the medical and surgical matters" contained within the records or reports. Conflicts in the medical evidence were for the Commission to resolve. An opposite conclusion from that of the Commission was not clearly apparent from the record. Its decision as to causation was not against the manifest weight of the evidence. The Commission's TTD award is supported by the record and not against the manifest weight of the evidence. Harris, J.

No. 2015 IL App (1st) 132137WC    RG Construction Services v. The Illinois Workers' Compensation Commission    Filed 1-9-15 (RJC)

On June 12, 2009, claimant, Alfredo Martinez, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employer, RG Construction Services, for alleged work-related injuries to both knees. Following a hearing, the arbitrator determined claimant sustained injuries arising out of and in the course of his employment on December 15, 2008, to only his right knee and awarded him (1) 107-4/7 weeks' temporary total disability (TTD) benefits and (2) medical ex-penses associated with claimant's right knee/leg condition. Additionally, the arbitrator rejected the employer's contention that its fourteenth amendment (U.S. Const., amend. XIV) due process rights were violated by the admission of medical records that contained the medical opinions of two of claimant's treating physicians. On review, the Illinois Workers' Compensation Commission (Commission) modi-fied the arbitrator's award, finding claimant injured both knees at work on December 15, 2008, and the current condition of ill-being in claimant's left knee was also causally connected to his work accident. On judicial review, the circuit court of Cook County confirmed the Commission's decision. Affirmed and remanded.

1 Appellate Case Posted 1-8-15

1. Criminal Law: Affirmed: Defendant's conviction for possession of controlled substance was affirmed in the face of his claims that the trial court erred in denying his motion to suppress where the police conducted a "free air" "search outside of his vehicle using a police dog and requiring defendant and the driver to turn the car and the car heater on so as to facilitate the search per People v. Bartelt, 214 Ill.2d 217 (2011), but conviction for felony resisting a peace officer reduced to a misdemeanor and remanded for re-sentencing where State's evidence failed to prove injury to the officer. Schmidt, J.

No. 2014 IL App (3d) 120676  People v. Thomas  Filed 10-27-14 (RJC)  Modified upon denial of rehearing

After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession of a controlled substance and resisting a peace officer. The trial court sentenced  defendant to 30 months' conditional discharge. Defendant appealed, and this court remanded for further proceedings. People v. Thomas, 2011 IL App (3d) 090886-U. Following remand, defendant filed motions for a new trial and to reconsider his amended  motion to suppress evidence. Both motions were denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor resisting a peace officer; (2) the State failed to prove actual or constructive possession of cocaine; (3) he received  ineffective assistance of trial counsel; (4) he was unlawfully seized as a result of the officer's request to roll up the car windows and turn the heat on; and (5) the officer's request regarding the windows and heat constituted an unlawful search. We affirm in  part, modify in part, and remand for further proceedings.

2 Appellate Cases Posted 1-7-15

1. Criminal Law: Reversed: Where defendant minor was drinking alcohol at his home while his mother was present, State, not defendant, had burden of proving that defendant was not being supervised by a parent while consuming alcohol at his residence. Lytton, J. (Schmidt, J., dissenting in part and concurring in part).

No. 2015 IL App (3d) 130672  People v. Cannon  Filed 1-7-15 (TJJ)

Defendant, Travis Cannon, was charged with unlawful consumption of alcohol by a minor. Prior to trial, he filed a motion to suppress evidence, arguing that the police violated his fourth amendment rights by entering the back deck of  his home without a warrant or consent. The trial court conducted a hearing and denied the motion. Following a bench trial, the court found defendant guilty and sentenced him to 24 months' probation. On appeal, defendant contends  that (1) the trial court erred in denying his motion to suppress, and (2) the State did not prove him guilt y beyond a reasonable doubt. We reverse.

2. Criminal Law: Reversed and remanded: Defendant's trial counsel deemed ineffective for stipulating to chemical testing of alleged controlled substance where later evidence established that some recovered substances had been commingled by police with result that defendant should only have been found guilty of lesser amount of 15-100 grams of cocaine, instead of over 900 grams. Matter remnded for resentencing on lesser offense. Appleton, J.

No. 2015 IL App (4th) 131045  People v. Coleman  Filed 1-6-15 (TJJ)

Defendant, Cassian T. Coleman, is serving 25 years' imprisonment for unlawfully delivering 900 grams or more of a substance containing cocaine, an offense he committed while having a prior conviction of unlawful delivery of a  controlled substance. He appeals from the third-stage dismissal of his petition for postconviction relief. We find ineffective assistance of counsel, a finding that makes it unnecessary for us to address the Brady claim. There is no  reasonable probability that defendant would have been completely acquitted but for this ineffective assistance. Instead, the injury he suffered was being convicted of possessing "900 grams or more of any substance containing cocaine"  (720 ILCS 570/401(a)(2)(D) (West 2006)) rather than being convicted of possessing "15 grams or more but less than 100 grams of a substance containing cocaine" (720 ILCS 570/401(a)(2)(A) (West 2006)). Therefore, we reverse the trial court's judgment, and we remand this case with directions to resentence defendant for a violation of section 401(a)(2)(A) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West 2006) ("15 grams or more but less than 100 grams").

7 Appellate Cases Posted 1-6-15

1. Juvenile Delinquency: Affirmed: In case where 14-year-old juvenile was adjudicated, in Juvenile Court, guilty of first degree murder and given a sentence of imprisonment till his 21st birthday, and also a mandatory minimum sentence under the extended juvenile jurisdiction statute of 45 years in the Illinois Department of Corrections, where the State had not moved for circuit court to impose 45-year sentence, defendant/respondent lacked standing to complain that that sentence was unconstitutional. Ellis, J.

No. 2015 IL App (1st) 142306  In re C.C.  Filed 1-6-15 (TJJ)

Respondent C.C. was convicted of first-degree murder for the shooting death of 17-year-old Dejuan Jackson. Respondent was 14 years old at the time of the shooting. He was sentenced to imprisonment in the Department of Juvenile  Justice until his twenty-first birthday and also given a mandatory minimum 45-year adult criminal sentence. Under the extended jurisdiction juvenile (EJJ) statute, the adult portion of his sentence is stayed, and if respondent completes  his juvenile sentence without committing a new offense or violating the conditions of his juvenile sentence, that adult sentence will be vacated on completion of that juvenile sentence. Respondent appeals, arguing that his 45-year  mandatory minimum adult-stayed sentence violates both the eighth amendment of the United States Constitution and the proportional penalties clause of the Illinois Constitution. We hold that, because the stay on respondent's adult  criminal sentence has not been revoked, the State has not sought its revocation, and the sentence may never be imposed, respondent lacks standing to challenge the severity of his sentence at this time. We therefore affirm the judgment  below.

2. Summary Suspension: Reversed: Where defendant in drunk driving investigation was given a "Notice of Summary Suspension" on the day of his arrest, indicating that his suspension would start 46 days after that notice, fact that Secretary of State sent a "Confirmation of Summary Suspension" after the suspension had already begun did not constitute a violation of procedural due process, and trial court grant of motion to rescind suspension was reversed. Fitzgerald Smith, J.

No. 2015 IL App (1st) 131207  People v. Morales  Filed 1-6-15 (TJJ)

The State appeals the trial court's rescission of the summary suspension of defendant Christian Morales' driver's license following his arrest for driving under the influence of alcohol. We reverse.

3. Criminal Law: Affirmed: Defendant convicted of first degree murder not entitled to post-conviction relief in case where he claimed that conviction was void for lack of affirmative showing in record that grand jury which indicted defendant was lawfully impaneled. Fitzgerald Smith, J.

No. 2015 IL App (1st) 122285  People v. Kliner  Filed 1-6-15 (TJJ)

Defendant Ronald Kliner appeals the circuit court's dismissal of his 2011 petition for relief from judgment filed pursuant to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2010)). On appeal, defendant  asserts, as he did in the petition, that his 1996 convictions for first degree murder and conspiracy to commit murder are void because the trial record does not affirmatively show the grand jury that entered his indictments was lawfully  impaneled. We affirm.

4. Criminal Law: Affirmed: Defendant's post-conviction claim of actual innocence based on affidavit of newly discovered witness unavailing where witness's affidavit established only that he saw two individuals fleeing scene with guns after shooting who were not defendant, but did not claim to have seen the shooting, and defendant's claim of ineffectiveness of trial counsel barred by Post-Conviction Hearing Act time limits where failure to allege counsel's failure to call a certain witness was result of defendant's own culpable negligence in failing to make claim when he had a timely opportunity to do so years earlier. Fitzgerald Smith, J.

No. 2015 IL App (1st) 113259  People v. Flowers  Filed 1-6-15 (TJJ)

Defendant Jimmy Flowers filed a pro se postconviction petition for relief from judgment under the Post-Conviction Hearing Act relating to his convictions of first degree murder and aggravated battery with a firearm. The trial court  appointed postconviction counsel to represent defendant. Thereafter, defense counsel filed a supplemental postconviction petition on defendant's behalf. The State filed a motion to dismiss the petition After a hearing, the trial court granted the State's motion to dismiss, and dismissed defendant's postconviction petition. Defendant appeals, contending that the trial court erred in dismissing the petition where: (1) new evidence shows he was actually innocent of the  crime; and (2) he was denied the effective assistance of trial counsel where counsel failed to investigate and call potential occurrence witness Karen Peterson. For the following reasons, we affirm.

5. Criminal Law: Reversed and remanded: In case of first degree murder and aggravated discharge of a firearm, failure of defense counsel to ensure that self-defense language was included in jury instructions for aggravated discharge of a firearm, as such language was in instructions for first degree murder (which charges resulted in acquittal), was ineffective assistance of counsel, and defendant entitled to new trial. Ellis, J.

No. 2015 IL App 121307  People v. Getter  Filed 1-6-15 (TJJ)

During an altercation on February 2, 2010, defendant Quincy Getter shot and killed Eric Stephens and wounded Stephens' cousin, Ronald Funches. Teneshia Hooper, Stephens' mother, was present when defendant shot Stephens and  Funches. The State charged defendant with first-degree murder with respect to Stephens, attempted murder and aggravated battery with a firearm with respect to Funches, and aggravated discharge of a firearm with respect to Hooper.  At trial, defendant never denied firing the weapon and relied exclusively on a self-defense theory. In the issues instructions for three of the four offenses charged—first-degree murder, attempted murder, and aggravated battery—the  jury was instructed that the State was required to prove beyond a reasonable doubt that defendant was not justified in using force to defend himself. In the fourth issues instruction, for aggravated discharge of a firearm, the jury received no such nstruction. The jury acquitted defendant on the three charges for which it received a self-defense instruction and convicted him on the one count for which it did not receive that instruction.This appeal revolves around this missing self-defense instruction on the aggravated discharge count, couched both as an evidentiary error and as an ineffective-assistance-of-counsel argument, because defense counsel below failed to tender that instruction or  object to its absence. We hold both that the failure to provide the jury with a self-defense instruction on the aggravated discharge count was plain error and that counsel was ineffective for acquiescing to the erroneous instructions. We  reverse defendant’s conviction for aggravated discharge of a firearm.

6. Criminal Law: Affirmed: Purported variance between charging document alleging that defendant did not register as a sex offender within three days after release from penitentiary, and proof at trial that defendant did not report his whereabouts weekly as he was purportedly homeless, was not a fatal variance that required reversal of his conviction. Welch, J.

No. 2015 IL App (5th) 130410  People v. Roe  Filed 1-6-15 (TJJ)

The defendant, Brian Roe, was charged by amended information with failure to register as a sex offender in accordance with the Sex Offender Registration Act. The defendant was found guilty at a stipulated bench trial. On appeal, the defendant argues that the State failed to present any evidence that he "failed to register within three days of his conviction as charged in the information," yet he was convicted for failing to register within three days of his release from  the Department of Corrections. The defendant asserts that the "conviction for a charge not made" is a violation of his constitutional right to due process. For the following reasons, we affirm.

7. Insurance Benefits Contract: Reversed and remanded: Trial court improperly dismissed breach of contract brought by employee insurance benefit provider against company, where termination clause of one of two contracts did not apply to both contracts, and where limitations-of-liability clause barred only "consequential damages" from lost profits, and not direct damages from lost profits. Spence, J.

No. 2015 IL App (2d) 140589  Westlake Financial Group, Inc. v. CDH-Delnor Health System  Filed 1-6-15 (TJJ)

Plaintiff, Westlake Financial Group, Inc. (Westlake), appeals from the trial court’s dismissal of its amended breach-of-contract complaint against defendant, CDH-Delnor Health System, f/k/a Delnor Community Health System  (Delnor). Westlake argues that the trial court erred in ruling that: (1) a termination clause in a separate contract allowed Delnor to terminate the agreement at issue without cause; and (2) all of Westlake’s damages were barred under a limitation-of-liability clause. We conclude that, while the contracts should be construed together, their termination clauses do not equally apply to both contracts, which cover different subject matter. We also conclude that the  limitation of liability clause bars only consequential damages from lost profits and not direct damages from lost profits. We therefore reverse and remand.

3 Appellate Cases Posted 1-5-15

1. Criminal Law: Reversed: Statements by defendant in murder case not sufficient to prove defendant guilty of first degree murder where the statements proved at best that defendant ws aiding the shooter after the shooting, not before or during it. Conviction reversed. Gordon, J.

No. 2014 IL App (1st) 122459  People v. Johnson  Filed 12-31-14 (TJJ)

Defendant Anthony Johnson was 17 years old on October 1, 2003, when he allegedly drove away from the scene of a shooting with the shooter in his motor vehicle. The shooter was acquitted, but defendant was convicted on October  10, 2007, by a separate jury in a simultaneous trial of first-degree murder on a theory of accountability and sentenced to 30 years in the Illinois Department of Corrections (IDOC). On direct appeal (People v. Johnson, No. 1-08-0233  (2010) (unpublished order under Supreme Court Rule 23)), we found that the trial court erred by failing to clarify the accountability statute's use of the word "during" after the jury requested clarification, and we remanded for a new  trial. Defendant was convicted on retrial and sentenced to 47 years. People v. Johnson, 2013 IL App (1st) 122459. Now, we cannot find the State proved defendant accountable for murder beyond a reasonable doubt. For these reasons,  we conclude that the State failed to prove beyond a reasonable doubt that defendant was accountable for Sims' murder of Baity, and we reverse defendant's conviction and sentence. The Illinois Supreme Court subsequently entered  a supervisory order directing us to vacate our judgment and reconsider in light of People v. Fernandez, 2014 IL 115527, to determine whether a different result was warranted. People v. Johnson, No. 117292 (Ill. 2014). After  considering our supreme court's decision in Fernandez, we determine that, although Fernandez reversed People v. Phillips, 2012 IL App (1st) 101923, a case that we previously relied upon, a different result is not warranted.

2. Administrative Review/Police Discipline: Affirmed: Police board decision to suspend police officer for five years (after decision to discharge reversed in initial trial court review) upheld; any delay in filing charges against officer not barred by doctrin of laches, as officer could not show prejudice to him stemming from timing of filing charges, and suspension upheld where officer unlawfully detained two sisters, touched one inappropriately, and lied about the encounter. Lavin, J.

No. 2014 IL App (1st) 132389  Chisem v. McCarthy  Filed 12-23-14 (TJJ)

Plaintiff Jamie Chisem appeals from an order of the circuit court of Cook County affirming his five-year suspension from the Chicago police department (CPD) imposed by defendant the Police Board of the City of Chicago (Board).  On appeal, plaintiff contends that defendant Garry M. McCarthy, the superintendent of the CPD, and the Independent Police Review Authority (IPRA) filed untimely charges in violation of plaintiff's right to due process, the City of  Chicago's municipal code (City's Code), Chicago Police Department General Order 93-03 (eff. Apr. 15, 2011), and the doctrine of laches. In addition, plaintiff contends that his five-year suspension was against the manifest weight of  the evidence. We affirm.

3. Autopsies: Affirmed: Civil action brought by decedent's wife claiming that autopsy performed on deceased husband was done without reasonable cause, and was done pursuant to wilful and wanton conduct, properly dismissed, as defendant coroner had authority to order the autopsy even though primary care physician believed death to have been the result of natural causes, and is in any event immune under the Tort Immunity Act. Schwarm, J.

No. 2015 IL App (5th) 140021  Wright v. Moss  Filed 1-5-15 (TJJ)

The plaintiff, Sharon Wright, lost her husband, Dale, to natural causes. The plaintiff claims that an autopsy of her husband by the defendant, Clinton County coroner Phillip Moss, was entirely unnecessary and willful and wanton  misconduct. She brought suit, claiming damages for this misconduct. The circuit court granted summary judgment to the defendant, and the plaintiff now appeals. For the following reasons, we affirm the circuit court's judgment.

1 Appellate Case Posted 1-2-15

1. Criminal Law: Concurrent sentences vacated and remanded: Defendant properly subject to Class 2 sentence for DUI based upon his background, but concurrent sentences of 26 years for first degree murder and for 7 years for aggravated driving under the influence vacated, as statutory scheme requires consecutive sentences; rather than modify sentences to run consecutively, appellate court vacated sentences and remanded for new sentencing hearing. Birkett, J.

No. 2014 IL App (4th) 130318  People v. Mischke  Filed 12-29-14 (TJJ)

Defendant, Donald J. Mischke, Jr., appeals from the judgment of the circuit court of Lake County sentencing him to concurrent terms of 26 years in prison for first-degree murder (720 ILCS 5/9-1(a)(3) (West 2010)) and 7 years in prison for aggravated driving while under the influence (DUI) (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)). Because consecutive sentences were required, we vacate both sentences and remand for resentencing.