Illinois Supreme and Appellate Court Case Summaries


No. By Laurence J. Dunford (LJD), Matthew Bertani (MB), Anne Therieau Hayes and Timothy J. Joyce(TJJ)

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

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2015 IL App (5th) 120401

8 Appellate Cases Posted 2-10-17

1. Criminal Law: Reversed and remanded: Trial court action in disqualifying counsel in criminal case at State request, where counsel's father- - himself an attorney- - had represented a potential witness was erroneous where the testimony of that witness was relatively insignificant, and where other witnesses could establish such claimed facts, so that defendnat's right to counsel of his choice was improperly denied. Mason, J.

No. 2017 IL App (1st) 131097  People v. Buckhanan  Filed 2-7-16 (TJJ)

We reverse the disqualification of Buckhanan’s counsel and remand for a new trial. Nothing in the State’s theory of disqualification, either as originally articulated or as revised after the hearing, warranted depriving Buckhanan of his chosen counsel. And  although the State’s evidence was more than sufficient to sustain Buckhanan’s conviction, the error in disqualifying his attorney, standing alone, mandates reversal of the circuit court’s judgment and remand for a new trial.

1. Criminal Law: Affirmed: Conviction for armed habitual criminal affirmed over claim that predicate offense of aggravated unlawful use of weapon was now inapplicable per Aguilar decision, as that claim was guided by Illinois Supreme Court decision in McFadden, as predicate conviction is still valid and can support its use as a predicate felony unless it had been vacated prior to possession of this weapon on date in question, and evidence sufficient to prove defendant guilty beyond a reasonable doubt despite claim that defendant had no control over gun found in attic. Cunningham, J.

No. 2017 IL App (1st) 132884  People v. Faulkner  Filed 2-10-17 (TJJ)

Following a bench trial, the circuit court of Cook County found defendant Dorian Faulkner guilty of one count of being an armed habitual criminal (AHC) and two counts of unlawful use or possession of a weapon by a felon (UUWF), and sentenced him to six years of imprisonment. On direct appeal, he argues that: (1) his AHC conviction should be reversed because it was predicated on a prior conviction for aggravated unlawful use of a weapon (AUUW) that was based on a statute found to be unconstitutional and void by People v. Aguilar, 2013 IL 112116; and (2) his AHC and UUWF convictions should be reversed because the State failed to prove beyond a reasonable doubt that he had constructive possession of the firearm and ammunition recovered by the police. On August 31, 2015, we issued an opinion affirming the UUWF convictions but reversing the AHC conviction. People v. Faulkner, 2015 IL App (1st) 132884. In September 2016, our supreme court issued a supervisory order directing us to reconsider that judgment in light of its decision in People v. McFadden, 2016 IL 117424. We now affirm the convictions for both AHC as well as UUWF.

3. Criminal Law: Affirmed: Defendant convicted of sex offense in 1983 was not required to register as a sex offender in light of age of conviction, but 2014 conviction for felony theft triggered statutory provision which now required defendant to so register in light of subsequent felony conviction. Appellate court affirmed registration requirement in face of claim that it violated ex post facto provision of constitution. Rochford, J.

No. 2017 IL App (1st) 143150  People v. Bingham  Filed 2-10-17 (TJJ)

Following a bench trial in September 2014, the trial court convicted defendant, Jerome Bingham, of theft, which was elevated to a Class 4 felony due to a previous retail theft conviction, and sentenced him to three years’ imprisonment. Defendant had a prior conviction in 1983 for attempted criminal sexual assault for which he had not been required to register as a sex offender because the conviction occurred prior to enactment of the Sex Offender Registration Act (Act) (730 ILCS 150/1 et seq. (West 2012)), in 1986. Under section 3(c)(2.1) of the Act (730 ILCS 150/3(c)(2.1) (West 2012)), as amended in 2011, defendant’s 2014 felony theft conviction in this case required him to register as a sex offender for the 1983 attempted criminal sexual assault. On appeal, defendant contends (1) the Act is unconstitutional as applied to him; (2) the Act violates the ex post facto clauses of the United States and Illinois Constitutions; (3) his theft conviction was improperly elevated from a Class A misdemeanor to a Class 4 felony, and the trial court improperly imposed an enhanced three-year sentence for the Class 4 felony conviction; and (4) the trial court erroneously imposed a DNA analysis fee and failed to apply the $5 per day credit for presentence incarceration to several charges that qualify as fines. We affirm defendant’s conviction, three-year sentence, and the requirement that he register as a sex offender. We vacate his DNA analysis fee, credit him with $65 as against his fines, and direct the clerk of the circuit court to modify the fines and fees order accordingly.

4. Mortgage Foreclosure: Reversed and remanded: Trial court ruling that mortgage holder which had acquired mortgage by assignment from licensed mortgagee, but was not itself licensed to transact mortgage business, and thus did not have standing to enforce mortgage and seek judicial sale, was error, as plaintiff-assignee was not required by law to be so licensed in order to seek to enforce terms of mortgage. Lampkin, J.

No. 2017 IL App (1st) 152730  Nationstar Mortgage LLC v. Missirlian  Filed 2-10-17 (TJJ)

In a mortgage foreclosure action, a mortgage assignee’s lack of a license to conduct the business of residential mortgage lending was not a basis to invalidate the assignment, and thus, the trial court erred when it concluded the assignee lacked standing to pursue foreclosure, denied confirmation of the foreclosure sale, and dismissed the foreclosure action.

5. Domestic Relations: Affirmed: Trial court award changing child custody to respondent father affirmed in the face of false claims by the mother to authorities and the children's school regarding allegations that the father had physically and emotionally abused the children. Cunningham, J.

No. 2017 IL App (1st) 160098  In re Marriage of Wendy L. D.  Filed 2-10-17 (TJJ)

Petitioner-Appellant Wendy L. D., n/k/a Wendy L. S. (Wendy), appeals from the December 31, 2015 order awarding custody of the parties’ children to respondent-appellee George T. D. (George). For the following reasons, we affirm the ruling of the circuit court of Cook County.

6. Juvenile Delinquency: Reversed and remanded: Trial court decision to deny defense request to have officer's surveillance location revealed was error, and presence of prosecutor, but not defense attorney, in chambers during trial court's voir dire of testifying officer violated juvenile's right to be present. Hoffman, J.

No. 2017 IL App (1st) 162381  In re Manual M.  Filed 2-10-17 (TJJ)

The respondent, Manuel M., appeals from the trial court's judgment adjudicating him a delinquent minor by reason of his commission of two counts of aggravated unlawful use of a weapon and one count of unlawful possession of a firearm and the resulting  sentence of 18 months' probation and 30 days' commitment to the Juvenile Temporary Detention Center with the order of commitment stayed. For the reasons which follow, we reverse the respondent’s delinquency adjudication and sentence and remand the matter for a new trial.

7. Civil Procedure/Discovery: Affirmed: Nursing home administrator's report and certain witness statements generated in connection with 88-year-old woman's fall in nursing home were not subject to any privilege under the the Quality Assurance Act or Medical Studies Act, and were properly ordered by trial court to be turned over in discovery to plaintiffs in connection with lawsuit alleging negligence by the nursing home. Schostok, J.

No. 2017 IL App (2d) 160042  Lindsey v. Butterfield Health Care II, Inc.  Filed 2-10-17 (TJJ)

In this consolidated appeal, the defendant Butterfield Health Care II, Inc., doing business as Meadowbrook Manor of Naperville (Meadowbrook), claims that certain of its documents are privileged and that the circuit court of Du Page County should not  have ordered it to produce them during discovery in a lawsuit filed against it by plaintiff, Jannie Lindsey, as the guardian of Laura Lindsey. Meadowbrook insists that the Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2014)) and the Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act (the Quality Assurance Act) (745 ILCS 55/1 et seq. (West 2014)) protect it against having to disclose those documents. We agree with the trial court that the documents at issue should be produced.

8. Criminal Law: Reversed: Conviction for being a child sex offender in a public park vacated, as statutory provision prohibiting such deemed unconstitutional as it is not reasonably related to its stated goal of protecting children, and strips away a "wide swath" of innocent conduct. McDade, J. (Carter, J., dissenting).

No. 2017 IL App (3d) 140627  People v. Pepitone  Filed 2-9-17 (TJJ)

The defendant, Marc A. Pepitone, was convicted of being a child sex offender in a public park (720 ILCS 5/11-9.4-1(b) (West 2012)) and was sentenced to 24 months of conditional discharge, 100 hours of public service, and $400 in fines and costs. On appeal, Pepitone argues that (1) section 11-9.4-1(b) is unconstitutional on its face because it bears no reasonable relationship to protecting the public and (2) section 11-9.4-1(b) violates the ex post facto clause because his prior conviction occurred before section 11-9.4-1(b) took effect. We hold that section 11-9.4-1(b) is facially unconstitutional and therefore reverse the circuit court’s judgment.

1 Appellate Case Posted 2-9-17

1. Civil Procedure/Sanctions: Affirmed: Trial court properly properly imposed sanctions against insurance company for its conduct in a declaratory judgment action for claiming that insured in motor vehicle accident did not cooperate with insurance company (thus arguably excusing coverage) when company had previously been advised that insured was in custody awaiting trial on criminal charges thus potentially mitigating insurer's claim of failure to cooperate. Ellis, J.

No. 2017 IL App (1st) 160775  American Access Casualty Company v. Alcauter  Filed 2-9-17 (TJJ)

Defendant Kimberly Krebs, the other driver involved in the car accident with Alcauter, filed a motion for sanctions against AACC and Newman, arguing that she had informed Newman of Alcauter’s arrest and detention prior to trial and that AACC proceeded to trial anyway. The trial court granted Krebs’s request for sanctions. AACC appeals, arguing that Newman reasonably relied on the representations of counsel assigned to represent Alcauter at the arbitration that Alcauter had been contacted  about the arbitration. While conceding that the facts did not support its declaratory-judgment action, AACC argues that it should not be faulted simply for advocating a losing cause. We affirm the imposition of sanctions. The record shows that, well before  the scheduled trial date, Newman was informed of the possibility that Alcauter had been incarcerated. Yet Newman did no serious investigation of that possibility and failed to forthrightly bring Alcauter’s arrest to the attention of the trial court. Instead,  AACC and Newman elected to proceed to trial, knowing that its declaratory-judgment claim lacked factual support.

4 Appellate Cases Posted 2-6 and 2-7-17

1. Uninsured Motorist Coverage: Notice of Claim:  Affirmed:  In deciding whether a provision within an insurance agreement violates public policy, we must determine whether the agreement is so capable of producing harm that its enforcement would be contrary to the public interest. An agreement will not be invalidated unless it is clearly contrary to what the constitution, the statutes, or the decisions of the courts have declared to be the public policy of Illinois, or unless it is manifestly injurious to the public welfare.  Whether an insurance provision violates public policy depends on the particular facts and circumstances of the case. While 215 ILCS 5/143a does not state a limit on when an uninsured motorist claim may be made, our supreme court has held that the purpose underlying this statute “cannot be circumvented by the insertion of a contrary or restricting provision in an insurance policy."   Harris, J.


No. 2017 IL App (1st) 161144  Smith v. American Heartland Insurance Company Filed 2-6-17 (MGB)


Plaintiff sustained injuries while a passenger in a vehicle owned by Pearson which was struck by a hit and run driver.  Pearson's insurance coverage was split between Defendant (liability and uninsured) and another (collision).  Pearson had not yet been provided with policies at the time of collision, but had a card naming each insurer but not specifying which coverage each provided.  UIM policy required notice within 120 days for hit and run incidents. Plaintiff's attorney, using information provided by Pearson, notified collision carrier of claim, but not Defendant. Defendant, once notified and after taking several months to investigate claim, denied coverage based upon lack of timely notice. Based on the above, the 120-day notice provision Heartland seeks to enforce against Smith is a dilution or diminution of the uninsured motorist statute and is therefore against public policy as applied to her.  Accordingly, we affirm the entry of judgment in favor of Smith, and her claim for uninsured motorist benefits should proceed to arbitration.

2. Collective Bargaining Agreements:  Trial Court's vacating of Arbitrators Award Affirmed:  Judicial review of an arbitrator’s award is extremely limited, and a Court  mustenforce a labor-arbitration award if the arbitrator acts within the scope of his or her authority and the award draws its essence from the parties’ collective-bargaining agreement. An arbitration award draws its essence from the collective bargaining agreement when the arbitrator, in making a decision, limits himself or herself to interpreting and applying the agreement. Hyman, J. 


No. 2017 IL App (1st) 161499  The Forest Preserve District of Cook County, Illinois v. Illinois Fraternal Order of Police Labor Council Filed 2-7-17 (MGB)


The Union represents a bargaining unit of sergeants employed by the District. The Union filed two grievances regarding the placement of newly promoted patrol officers on the sergeant’s salary schedule. The Union argued that newly promoted sergeants should be placed on the sergeant’s salary schedule based on their years of service with the District. The District maintained the Personnel Rules governed. Those rules provide that a newly promoted sergeant’s salary is comparable to a two step increase on the patrol officer’s salary schedule, regardless of his or her tenure with the District. The Arbitrator sustained the Union's grievances.  The Trial Court reversed the Arbitator's Decision, finding for the Disctrict. Establishing that an arbitrator has failed to interpret the collective bargaining agreement and has, instead, imposed his or her own personal view of right and wrong on the labor dispute presents a huge challenge. . Nevertheless, we agree with the circuit court that the District has cleared this hurdle. Arbitrator Cox’s rationale for deviating from the Personnel Rules was the District’s “long established practice” of paying newly promoted sergeants based on their years of service. But, as the circuit court noted, Arbitrator Cox provides no examples of this historical practice. Neither does the Union. Moreover, even if the Union could provide evidence of the District’s practice of deviating from the Personnel Rules, a long-standing policy outside of the CBA does not draw its essence from the CBA. Thus, the circuit court correctly vacated the award of the Arbitrator.

3. Personal Injury: Sexual Abuse: Statute of Limitations: Discovery Rule: Dismissal Affirmed:  An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the day the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse.” 735 ILCS 5/13-202.2(b).  The statute further provides that the limitations period under subsection (b) does not begin to run until the victim of the abuse is 18 years old. Pursuant to the discovery rule, “a party’s cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused.   Discovery Rule does not apply to save a claim where plaintiff  knew of the abuse at the time it occurred and the memory was not repressed.  Further, knowledge of the injury is presumed where plaintiff was aware of the abuse as it was occurring. Mason, J. 


No. 2017 IL App (1st) 160536    Doe v. Carlson  Filed 2-7-17 (MGB)


This case arises from Cherie Carlson’s alleged sexual abuse of Jane Doe, beginning when Doe was 16 years old. Alleged abuse occurred when Doe was 16  t0 20 years old, ending in 1999. Doe filed suit against Carlson, among others, on November 15, 2013. Carlson moved to dismiss the suit on the grounds that the statute of limitations had expired in 2001, two years after Doe knew or should have known both that the abuse occurred and that her injury was caused by the abuse.  The trial court agreed and grantedthe Motion to Dismiss. Ordinarily, the issue of when the statute of limitations begins to run under the discovery rule is one of fact, but when the answer is clear from the pleadings, we may decide this issue as a matter of law. Doe does not allege her memories of the abuse were repressed. Further, while she denied awareness of the fact that the contact between her and Carlson was criminal, she admitted that she knew the contact was “wrong” and “inappropriate” at the time it was occurring. Doe elaborated that she did not believe her encounters with Carlson amounted to a consensual dating or sexual relationship. It is well-settled that under the discovery rule a plaintiff need not appreciate the criminality of the conduct at issue to be charged with knowledge that her injury was wrongfully caused.  Finally,s, Doe, at the age of 20, informed a third party that Carlson had been “sexually inappropriate” with her. Indeed, Doe had considered reporting Carlson’s conduct earlier, but decided against it after remembering that another girl whom Carlson mentored made similar allegations that Carlson “inappropriately touch[ed]” her, only to end up leaving the church with her family. Doe also recalled that her youth group leader at the time ordered the members not to discuss those allegations. Taken together, and contrary to her argument on appeal, Doe’s testimony establishes that she knew of Carlson’s abuse at the time it occurred.  Turning then to the issue of when Doe knew that her injuries were caused by the sexual abuse (the second prong of section 13-202.2(b)), pursuant to Clay, knowledge of injury is presumed where the victim was aware of the sexual abuse as it was occurring . And even assuming arguendo that this presumption of knowledge of injury is inapplicable, Doe’s testimony nevertheless reveals that she had actual knowledge of the cause of at least a portion of her injuries when they occurred.

4. Telephone Consumer Protection Act. Summary Judgement for Plaintiff Affirmed:  The TCPA prohibits the use of any fax machine or other device to send unsolicited advertising faxes. 6, ¶ 52. The purpose of the TCPA is to prevent the transmission of “junk faxes” which intrudes into the privacy interests of phone customers and causes the recipient to assume the cost of paper and ink used to receive the unsolicited faxes.  Upon finding that a defendant “willfully or knowingly violated the [TCPA], the court may award treble damages. To prevail on a TCPA claim, plaintiff must show that (1) defendant used a fax machine, computer, or other device to send one or more faxes to plaintiff’s fax machine; (2) the faxes contained material advertising the “ ‘commercial availability [or quality] of any property, goods, or services’ ”; and (3) plaintiff did not give prior permission or express invitation for defendant to send the fax.  Pierce, J. 


No. 2017 IL App (1st) 150690    Loncarevic and Associates, Inc. v. Stanley Foam Corporation  Filed 2-7-17 (MGB)


Trial Court granted summary judgement in favor of Plaintiff on TCPA claim in case certified as a class action. The issue was whether defendant should be liable for faxes sent to Illinois. In the instant case, it is undisputed that (1) plaintiff received the two unsolicited advertising faxes sent by B2B that advertised Stanley Foam’s product; (2) Christie, an employee of defendant, approved the substance and content of the faxes; and (3) defendant employed and paid B2B to transmit the faxes advertising Stanley Foam’s product and business. However, the parties dispute whether the faxes sent outside of the tristate area were transmitted “on behalf of” defendant. Applying agency principles in this case, after reviewing the parties’ submissions, the operative complaint, and the discovery on file, we find that the trial court was correct when it found that there is no genuine issue of material fact that defendant was the “sender” of the unsolicited advertising faxes transmitted by B2B on behalf of Stanley Foam that were received by plaintiff, a business located outside the tristate area. Based on this record, we find that there is no genuine issue of material fact that the faxes at issue were prepared, approved, and paid for by defendant, through the acts of its employee, Christie, under specific and broad authority to advertise as he saw fit. Therefore, we find that the faxes sent outside of the tristate area were sent “on behalf of” defendant.  Summary Judgement in favor of plaintiff is affirmed. 

2 Appellate Cases Posted 2-3-17

1. Mortgage Foreclosure:  Affirmed:  Legislation was meant to clarify the previous law and make clear that a violation of the Licensing Act does not render a mortgage void. Thus, as the amendment makes clear, there is not (and has never been) a right to void a mortgage that violates the Licensing Act. There is, therefore, no public policy requiring that mortgage contracts be held void when an entity is not licensed pursuant to the Licensing Act. Accordingly, the circuit court correctly entered the judgment of foreclosure as well as the order approving the sale. Reyes, J.


No. 2017 IL App (1st) 153010 Wells Fargo Bank, N.A. v. Maka Filed 2-3-17 (ATH)


This matter arises out of a mortgage foreclosure on a property owned by defendant.  Defendant raised the issue before the circuit court that his mortgage was void because the original lender, Alliance Mortgage Company d.b.a. BNY Mortgage (Alliance) was not licensed at the time the loan was originated pursuant to the Residential Mortgage License Act of 1987.  On appeal, defendant maintains that because Alliance was not licensed in Illinois when the mortgage was originated his mortgage is void as against public policy and consequently the judgment of foreclosure was improperly granted.

2. Attorney’s Fees:  Affirmed:  Illinois follows the ‘American rule,’ which prohibits prevailing parties from recovering their attorney fees from the losing party, absent express statutory or contractual provisions. In the absence of a statutory basis for the recovery of its attorney fees, plaintiff may only recover those fees pursuant to contract.  Here, however, as correctly noted by the trial court, plaintiff has failed to identify any written instrument or condominium declaration, i.e., any contract, providing for its recovery of attorney fees in this action against defendant.  Rochford, J. 


No. 2017 IL App (1st) 153516 Blackstone Condominium Association v. Speights-Carnegie Filed 2-3-17 (ATH)


Plaintiff filed a complaint alleging a failure to pay condominium assessments.  Plaintiff sought damages, plus attorney fees and costs under a breach of contract theory.  After bench trial, the court found in favor of the plaintiff and entered a judgement.  Subsequent to the trial, the court denied a petition for attorney’s fees finding that the underlying action was for breach of contract, but that plaintiff had failed to produce a written instrument or condominium declaration providing for attorney fees in the event of a breach by defendant.  Plaintiff appealed.  Trial court affirmed. 

1 Appellate Case Posted 2-2-17

1. Unempployment Insurance/Contributions: In case where Department of Employment Security initially denied employee's claim for unemployment benefits, but then reversed that ruling, upward calculation of contribution by employer to Department during middle of calendar year, made retroactive to beginning of applicable year, was not prohibited by Unemployment Insurance Act. McBride, J.

No. 2017 IL App (1st) 143299  Perry & Associates, LLC v. The Illinois Department of Employment Security  Filed 2-2-17 (TJJ)

Plaintiff Perry & Associates, LLC appeals from the circuit court’s order affirming the administrative decision of defendants, the Illinois Department of Employment Security (Department) and the Director of Employment Security (Director), holding that  the raise in plaintiff’s rate for contributions to the Illinois Unemployment Insurance Trust Fund (Fund) for calendar year 2013 was proper. On appeal, plaintiff argues that the Department cannot retroactively change the contribution rate for an employer  midyear because (1) this change violates the terms of section 1509 of the Unemployment Insurance Act (Act) (820 ILCS 405/1509 (West 2012)),(2) the unilateral ability to increase the rate at any time on any year violates public policy, (3) the retroactive  application of the rate and imposition is improper, (4) the Department caused delays in proceedings by failing to provide a fair hearing such that it is inequitable to assess interest, and (5) the refusal to address the benefits to the claimaint as a defense to the  rate was improper.

4 Appellate Cases Posted 2-1-17

1. Public Employment/Unfair Labor Practices: Affirmed: State labor relations board properly ruled that county sheriff was guilty of an unfair labor practice when sheriff unilaterally changed rules regarding secondary employment and refused to bargain about same, despite sheriff's claim that actions were within his "inherent managerial authority." Fitzgerald Smith, J.

No.2017 IL App (1st) 153015  County of Cook v. Illinois Labor Relations Board  Filed 2-1-17 (TJJ)

Respondent-appellee International Brotherhood of Teamsters, Local 700 (Union), the representative of three bargaining units of Cook County correctional officers, deputy sheriffs, and fugitive investigators, filed a charge with the Illinois Labor Relations Board (Board), alleging that petitioners-appellants, County of Cook and the Sheriff of Cook County (“Sheriff” or “the Employer”), committed an unfair labor practice by unilaterally changing their secondary employment policy and refusing to bargain over it when they issued a general order establishing new policies and procedures governing their employees’ ability to work a second job. The Employer appeals, contending the Board’s decision must be reversed because the new secondary employment policy  is not subject to bargaining, as it is within the Employer’s inherent managerial authority; the new secondary employment policy does not change hours, wages or conditions of employment; and the new secondary employment policy does not impose new  discipline on employees. The employer also contends the complaint should be dismissed because the Union was not denied the opportunity to bargain over the issue of secondary employment. For the following reasons, we affirm.

2. Criminal Law: Affirmed: Defendant's actions in purposely driving his vehicle into another oncoming vehicle was sufficient to justify guilty verdict for first degree murder, and ought not to have been reduced to reckless homicide. Jorgensen, J.

No. 2017 IL App (2d) 141281  People v. Oelerich  Filed 2-1-17 (TJJ)

After a jury trial, defendant, Mark D. Oelerich, was convicted of first-degree murder and aggravated driving under the influence of cannabis. He was sentenced to concurrent terms of 24 years’ imprisonment for first-degree murder and 14 years for  aggravated DUI. On appeal, defendant contends that his conviction of murder should be reduced to reckless homicide because the State failed to prove beyond a reasonable doubt the mens rea for murder. We affirm.

3. Criminal Law: Affirmed: Defendant proved guilty beyond a reasonable doubt of double murder; trial court rulings on evidentiary issues not an abuse of discretion; trial court ruling denying defense to call expert witness on identification testimony not an abuse of discretion; and post-trial claim that others committed the murders was not newly discovered and did not raise a doubt as to defendant's guilt. Pierce, J.

No. 2017 IL App (1st) 122640  People v. Anderson  Filed 2-1-17 (TJJ)

Defendant Robert Anderson was convicted of four counts of first degree murder related to the shooting deaths of Moises Reynoso and Robert Lilligren. Defendant was subsequently sentenced to life in prison. Defendant now appeals and raises eight issues:  (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in admitting hearsay testimony; (3) the trial court erred by precluding defense counsel from questioning Officer Jeong Park as to whether he would describe  defendant as “black”; (4) the trial court erred when it excluded evidence of defendant’s prior acquittal for an unrelated charge; (5) the trial court erred in denying defendant’s motion in limine for expert testimony on eyewitness identification; (6) the trial  court abused its discretion in denying defendant’s motion for new trial in light of allegedly newly discovered evidence; (7) the prosecutor’s remarks in closing argument were prejudicial and denied defendant a fair trial; and (8) the trial court erred in  denying his request for a new trial based on his allegations of ineffective assistance of counsel. For the following reasons, we affirm the judgment of the trial court.

4. Civil Procedure: Affirmed: Trial court properly dismissed as res judicata plaintiff's second independent action seeking to quiet title of garage space in condominium building, as issue had been squarely decided in first case. Schostok, J.

No. 2017 IL App (2d) 160466  Jaworski v. Skassa  Filed 2-1-17 (TJJ)

Plaintiff, Violetta Jaworski, appeals from the dismissal of her claim to quiet title to a garage in her condominium complex. She contends that her claim should not have been dismissed on res judicata grounds, as the prior action, initiated by defendant  Danuta Skassa (defendant), did not result in a final judgment or decide the issue of ownership of the garage. Because defendant believes that plaintiff has filed this appeal for improper purposes, defendant asks this court to impose sanctions against plaintiff.  For the reasons that follow, we affirm, but we deny defendant’s request to impose sanctions.

5 Appellate Cases Posted 1-31-17 

1. Criminal Law: Affirmed: Trial court properly ruled that defendant was not under arrest at police station but voluntarily wished to remain there where defendant was homeless, expressed a desire to remain in order to stay warm, and expressed a desire to help police find out what happened to his friend the victim; trial court properly determined that initial failure to warn defendant of Miranda was cured prior to later interview in light of the passage of time and the different tenor of the interview. Mason, J. (Hyman, J., concurring in part and dissenting in part).

No. 2017 IL App (1st) 140893  People v. Soto  Filed 1-31-17 (TJJ)

Following a jury trial, defendant Raul Soto was convicted of first-degree murder for the deadly beating of his roommate and sentenced to 27 years’ imprisonment. During the murder investigation, Soto voluntarily accompanied police to the police station  and cooperated with the investigation. After spending two nights at the police station, Soto made The trial court agreed with Soto that his first two incriminating statements were inadmissible mainly because, although the police had probable cause to arrest  Soto for the murder, they failed to give him Miranda warnings before eliciting an incriminating statement and the taint from that statement rendered inadmissible his second statement given minutes after his first. But the trial court found that Soto’s third incriminating statement, given more than 24 hours later, was admissible based on the curative measures taken after the unwarned interrogation. The trial court also found that Soto voluntarily, knowingly, and intelligently waived his Miranda rights, despite  his asserted cognitive defects and low intelligence level. On appeal, Soto challenges the admissibility of his third incriminating statement. Finding no error in the trial court's rulings, we affirm.

2. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition in murder case at second stage where petitioner claimed only that detective in other cases had been deemed to have violated other defendants' rights in unrelated cases by compelling false identification testimony, where claim in this case did not assert that detecticve had done so in this case but relied only on his misconduct in other matters. Pierce, J. (Hyman, J., dissenting).

No. 2016 IL App (1st) 141660  People v. Gonzalez  Filed 12-27-16 (TJJ)

Petitioner Tony Gonzalez appeals from the trial court’s second-stage dismissal of his amended petition for postconviction relief brought pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Gonzalez asks this court to  reverse the dismissal of his amended postconviction petition asserting claims of actual innocence and a Brady violation and requesting remand for a third-stage evidentiary hearing. Affirmed.

3. Criminal Law: Affirmed: Trial court ruling denying motion to suppress statements by 17-year-old defendant not against manifest weight of the evidence; fact that trial court ordered an examination as to defendant's fitness was not itself indicative of a bona fide doubt of defendant's fitness so as to require a fitness hearing; and consecutive sentences totalling 90 years in the penitentiary for murder and attempt murder did not violate Miller v. Alabama prohibition against mandatory minimum life sentences for juveniles, where sentences imposed were not minimum sentences. Scmidt, J. (Wright, concurring in part and dissenting in part).

No. 2017 IL App (3d) 130190-B  People v. Edwards  Filed 1-31-17 (TJJ)

Following a stipulated bench trial, the Will County circuit court found defendant, Matthew Edwards, guilty of first degree murder and attempted murder. Prior to trial, defendant filed a motion to suppress, claiming his confession to police was involuntary  based on the fact that he was 17 years old at the time, had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother or another concerned adult despite his request to do so.  The trial court denied the motion.

4. Mortgage Foreclosure: Affirmed: Trial court properly denied defendant's post-judgment motion to quash service of process by publication in connection with mortgage foreclosure proceedings where party seeking to quash service did not move to quash service within 60 days of filing its appearance in court, in violation of particular provision of Illinois Mortgage Foreclosure Law. Carter, J. (Holdridge, J., dissenting).

No. 2017 IL App (3d) 140566  The Bank of New York Mellon v. Laskowski  Filed 1-31-17 (TJJ)

Plaintiff, the Bank of New York Mellon (Bank), in its capacity as the trustee for the certificate holders of a certain alternative loan trust, brought an action against defendant, Pacific Realty Group, LLC (Pacific) and others to foreclose upon a mortgage held  on certain real property in Bolingbrook, Will County, Illinois. Well into the proceedings, after the subject property had already been sold at a sheriff’s sale, Pacific filed its appearance in the case. On that same court date, the trial court entered a dismissal for  want of prosecution (DWP) against the Bank for failing to appear. The DWP was later vacated. About 90 days after Pacific had filed its appearance, it filed a motion to quash service of process. The trial court denied Pacific’s motion and later confirmed  the sale of the property and the proposed distribution of the proceeds. Pacific appeals, arguing that the trial court erred in denying its motion to quash service of process. We affirm the trial court’s judgment.

5. Criminal Law: Vacated and remanded: In case where defendant was charged with offense in Will County and warrant issued on case on the same date, as defendant was in custody in Cook County at time of charge and issuance of warrant, defendant was entitiled to time credit for penitentiary sentence on Will County case while he was in custody in Cook County prior to being brought to Will County. O'Brien, J. (Wright, J., dissenting).

No. 2017 IL App (3d) 140907  People v. Brown  Filed 1-31-17 (TJJ)

Defendant, Christopher Brown, appeals the denial of his request to correct the mittimus to reflect additional presentence custody credit. We vacate and remand with directions.

3 Appellate Cases Posted 1-30-17

1. Criminal Law: Affirmed: Evidence was sufficient to prove defendant guilty beyond a reasonable doubt of aggravated domestic battery despite claim that defendant's physical deformities prevented him from stabbing victim in manner claimed; trial court comments in ruling on a defense motion did not indicate prejudice on part of trial judge; and failure of defendant in making victim's mental health records part of record on appeal resulted in forfeiture of claim that trial court erred in refusing evidence on victim's mental condition. Harris, J.

No. 2017 IL App (1st) 143403  People v. Jones  Filed 1-30-17 (TJJ)

Defendant, Michael Jones, was convicted after a bench trial of aggravated domestic battery, and the trial court sentenced him to five years’ imprisonment and four years of mandatory supervised release (MSR). On appeal, defendant contends: (1) the State  did not prove him guilty of aggravated domestic battery beyond a reasonable doubt where severe deformities in his hands and arms, along with his lack of strength and range of motion, rendered him incapable of stabbing the victim in her chest; (2) he is  entitled to a new trial where the record shows that the trial court prejudged his case and rejected his defense before defendant’s expert witness had testified; and (3) he was denied his right to present a full defense when the trial court refused to admit mental  health records of the victim. For the following reasons, we affirm.

2. Parental Rights: Affirmed: Trial court did not err in going forward on an expedited proceeding for termination of parental rights, in light of the procedural history of the case and the procedural safeguards accorded to respondent mother, and trial court decision to terminate parental rights was not against the manifest weight of the evidence despite claim that parental rights were terminated "only" because of anticipatory neglect. Mikva, J.

No. 2017 IL App (1st) 162306  In re Tyianna J.  Filed 1-30-17 (TJJ)

This is an appeal from the circuit court’s orders adjudicating the minor Davion N. a ward of the court and terminating the parental rights of Davion’s natural mother, respondent Traci F. In this case the juvenile court took the somewhat unusual step of  terminating Traci’s parental rights as to Davion at the dispositional hearing. On appeal, Traci makes the following arguments in favor of reversal: (1) the circuit court’s finding that Davion was abused and neglected was against the manifest weight of the  evidence; (2) the court abused its discretion by permitting expedited termination at the dispositional hearing; (3) Traci’s procedural due process rights were violated because no hearing was held to determine if the statutory criteria for expedited termination  roceedings were met; (4) Traci’s procedural due process rights were violated because the court terminated her parental rights prior to conducting an adjudicatory hearing to determine if Davion was abused or neglected; (5) the court’s finding that Traci was  unfit was against the manifest weight of the evidence; and (6) the court’s finding that termination of Traci’s parental rights and the appointment of a guardian with the ability to consent to adoption was in Davion’s best interest was against the manifest  weight of the evidence. For the reasons that follow, we affirm the judgment of the circuit court.

3. Real Estate Sales/Fraudulent Misrepresentaation: Affirmed: In action by plaintiff to recover proceeds in connection with building sold to defendant, trial court properly denied defendant claim that plaintiff had misrepresented zoning status of building and ability to convert building to 13 units rather than nine, as defendant could reasonably have discovered zoning status before purchase by exercise of reasonable caution. Carter, J.

No. 2017 IL App (3d) 160141  Kupper v. Powers  Filed 1-30-17 (TJJ)

Defendant, Robert L. Powers, appeals the dismissal of his third amended countercomplaint and the trial court’s order granting summary judgment in favor of plaintiffs. Specifically, defendant argues that the trial court erred in dismissing his fraudulent misrepresentation claim because the alleged false statements made by plaintiffs, Robert H. Kupper II, Kevin I. Kupper, Alan Kupper, and David G. Kupper, as beneficiaries of the Heritage Bank of Central Illinois, as trustee under the provisions of a trust agreement dated January 27, 2006, known as trust No. 20-101, were false statements of material fact. Defendant contends that the trial court erred in dismissing his negligent misrepresentation claim because plaintiffs owed a public duty to convey accurate  information about the zoning of the premises. Defendant also argues that the trial court erred in dismissing with prejudice his claim that plaintiffs violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et  seq. (West 2014)), which was pled in his first amended countercomplaint. Additionally, defendant contends that the trial court erred in granting plaintiffs’ motion for summary judgment because (1) the trial court lacked jurisdiction to rule on the motion  and (2) there were genuine issues of material fact. We affirm.

4 Appellate Cases Posted 1-27-17

1. Child Support: Affirmed: Under the doctrine of comity, courts may defer to the laws or interests of a foreign country and decline to exercise jurisdiction that is otherwise properly asserted.  Recognition of a foreign judgment may be withheld where it is contrary to the public policy of the state where the recognition is sought, the country in which the decree was rendered does not recognize American decrees, or the judgment was obtained in bad faith, by fraud or by taking advantage of the foreign law.  In this case, the Thai judgment was not contrary to Illinois public policy,  Because an unmarried man who causes conception through sexual relations “is legally obligated to support a child, then the equivalent resulting birth of a child caused by the deliberate conduct of artificial insemination should receive the same treatment in the eyes of the law.”  Lampkin, J.

No. 2017 IL App (1st) 133703 In re Parentage of A.H. Filed 1-20-17 (ATH)

In this action against the biological father, the mother filed a petition to recognize and enroll a judgement from a court in Thailand that adjudicated the defendant to be the father of triplets conceived by gamete intrafallopian transfer (GIFT) and ordered support obligations on him.  The court concluded that the circuit court properly extended comity to the foreign judgment because it was not contrary to Illinois public policy and the father failed to establish that the judgment was obtained by fraud or that he was denied a full and fair opportunity to present a defense in the foreign proceeding.

2. Juvenile Law: Affirmed: Mother’s contention on appeal that the trial court’s finding that she is an unfit parent and also its termination of her parent rights because the parent-child reunification services that the State required her to complete were not reasonably accommodated to her developmental disability were forfeited as this claim was never made in the trial court.  The trial court in its termination finding relied upon the mother’s lack of reasonable progress and reasonable degree of interest not unfitness on the parent’s developmental disabilities.  In this case the mother missed several therapy sessions, refused to participate in counseling, was late to visitation and when there, behaved inappropriately.  It is well established that a failure to comply with an imposed service plan and infrequent or irregular visitation with the child may support a finding of unfitness.  Delort, J.

No. 2017 IL App (1st) 161944 In re Jeanette L. Filed 1-27-17 (ATH)


Following a hearing, the trial court adjudicated minor-respondent, Jeanette L., to be an abused and neglected minor, and made her a ward of the court. The trial court subsequently found Jeanette L.’s biological parents, respondents Georgina L.1 and Clarence M., unfit parents and terminated their parental rights. Georgina L. appeals, contending that the trial court’s findings should be reversed because the State failed to provide her with reasonable accommodations under the Americans with Disabilities Act.  We affirm judgment of circuit court.  

3. Workers Compensation:  Affirmed:  The primary purpose of the Workers compensation Act is to provide financial protection for injured workers by providing prompt and equitable compensation, including the payment of undisputed medical expenses, for employees who are injured while working, regardless of fault.  Medical payments made by, or due from, an employer for injuries sustained by an employee in a work accident are clearly “amounts paid or payable” under the Act, regardless of whether the employer pays the medical provider directly or the employee.  Further, we note that setoff provisions in the uninsured motorist policy, like the one at issue here, have consistently been recognized by the courts as enforceable agreements that are not contrary to public policy because they merely place an employee in the same position he would occupy had the tortfeasor been minimally insured.  Harris, J.

No. 2017 IL App (4th) 160028 Country Preferred Insurance Company v. Groen Filed 1-27-17 (ATH)

Plaintiff filed an amended motion for summary judgment asserting defendant could not maintain an uninsured motorist claim, since she had already received workers’ compensation benefits in excess of the uninsured motorist policy’s limits. Defendant filed a cross-motion for summary judgment, asserting that the setoff provision (1) violated the Workers Compensation Act and was unenforceable and (2) excluded medical payments made by her employer directly to her medical providers. In its written order, the court granted plaintiff’s motion and denied defendant’s motion finding that the setoff provision was enforceable, unambiguous, and not against public policy.

4. Civil Procedure/Contracts: Affirmed and vacated in part: Seemingly false allegation in complaint by plaintiffs regarding the existence of a written contract, when plaintiffs thereafter acknowledged that there was only an alleged oral contract, justified trial court imposition of sanctions under SCR 137, but matter remanded for consideration of whether less serious sanction than dismissal was appropriate. Hall, J

No. 2016 IL App (1st) 150180  Stiffle v. Marz  Filed 12-30-16 (TJJ)

The plaintiffs, Kimberly and Scott Stiffle, appeal from an order of the circuit court of Cook County granting the defendant’s, Baker Epstein Marz’s, motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) and dismissed the plaintiffs’ second amended  complaint with prejudice. On appeal, the plaintiffs contend that the circuit court erred when it found they violated Rule 137 and that dismissal of their second amended complaint with prejudice was too severe a sanction. For the reasons set forth below, we affirm in part and  vacate in part the order of the circuit court.

1 Appellate Case Posted 1-24-17 and 2 Appellate Cases Posted  1-25-17

1.     Criminal Law: Judgment of Conviction Affirmed:   Where Post Conviction Petition asserting grounds of ineffective assistance of counsel identified the evidence Petitioner asserted should have been advanced, but was not supported by affidavit or an explanation why no affidavits were attached, Trial Court properly granted State's Motion to Dismiss the proceeding at the second stage thereof.   McLaren, J.

No. 2017 IL App (2d) 140941  People v. Spivey   Filed 1-25-17 (MGB)

Defendant, Kavin Spivey, appeals from an order of the circuit court of Lake County granting the State’s motion to dismiss his petition under the Post-Conviction Hearing Act  seeking relief from his convictions of attempted first-degree murder, armed violence (, armed robbery, and being an armed habitual criminal.  Trial Court determined his pro se Petition included the gist of a claim for ineffective assistance, and appointed counsel for the second stage.  The Petition was not amended during the second stage and the trial court granted the State's Motion to Dismmiss. We note the existence of authority holding that the failure to comply with section 122-2 is not a ground for a second-stage dismissal. People v. Barkes, 399 Ill. App. 3d 980, 987 (2010) (citing Hall, 217 Ill. 2d at 332). However, more recent authority severely undermines Barkes. In People v. Allen, 2015 IL 113135, our supreme court held that the failure to notarize a statement styled as an evidentiary affidavit was not a ground for the summary dismissal of a postconviction petition. The court added, however, that, “[w]here a defendant has submitted an unnotarized statement, the State may challenge this nonjurisdictional procedural defect at the second stage of proceedings.” Id. ¶ 35. Furthermore, the court was careful to note that, “[w]here a defendant’s counsel is unable to obtain a properly notarized affidavit, the court may dismiss the postconviction petition upon the State’s motion.” Id. If the presence of an unnotarized statement styled as an evidentiary affidavit is a ground for the second-stage dismissal of a postconviction petition, it would be reasonable and logical to permit the dismissal of a petition because of the absence of an affidavit. In both instances, the opportunity to cure the defects is extant during the second-stage proceedings.  For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.     

2.    Criminal Law: Post Conviction: Affirmed:    Evidence was sufficient to sustain conviction for delivery of controlled substance on theory of accountability beyond a reasonable doubt.  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 criminal design.  A defendant’s intent may be inferred from the nature of his or her actions and the circumstances surrounding the criminal conduct. Words of agreement are not necessary to establish a common purpose to commit a crime, and accountability may be established through a defendant’s knowledge of and participation in the criminal scheme, even though there is no evidence that he or she directly participated in the criminal act itself.  Birkett, J.

No. 2017 IL App (2d) 150731 People v. Hernandez   Filed 01-25-17 (MGB)

Following a bench trial, defendant, Jose L. Hernandez, was convicted of unlawful delivery of a controlled substance and sentenced to 20 years imprisonment.  He appeals, contending that the State failed to prove beyond a reasonable doubt that he knowingly participated in the transaction. Here, the evidence sufficiently proved that defendant served as a lookout while his father and brother conducted a drug transaction. He conducted a "heat run",  in driving a vehicle in a circuitous and erratic route designed to reveal surveillance.  He parked his vehicle a block from his home despite available parking spots. He drove in tandem with a vehicle which ultimately delivered the drugs and positioned his vehicle so as to serve as a look-out at the point of delivery.  His vehicle, though not directly involved in the transaction, was fitted with a secret department in which contraband could be hidden. The persons involved in the physical delivery were his father and brother. All of these factors point to defendant’s knowing participation in the drug delivery and render extremely unlikely any innocent explanation for his conduct. See People v. McDonald, 168 Ill. 2d 420, 447 (1995) (“the trier of fact is not required to disregard inferences that flow from the evidence, nor is it required to search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt”). The judgment of the circuit court of Du Page County is affirmed.

3.    Family Law: Disgorgement of Attorney's Fees: Reversed: Trial Court did not have discretion to consider retirement assets of a Party requesting interim fees when determining his or her ability to pay attorney fees. A spouse requesting fees need not be destitute and neither party's estate should be exhausted nor their economic stability undermined. Fees actually earned and paid to attorney are not "available"  under 750 ILCS 5/501(c-1)(3) and thus may not be ordered to be disgorged to pay the fees of counsel for the opposing party.  Carter, J.

No. 2017 IL App (3d) 150101 In re Marriage of Goesel   Filed 01-24-17 (MGB)

This appeal arises from the dissolution of marriage proceedings between petitioner, Christine Goesel, and respondent, Andrew Goesel. Contemnor, Laura Holwell, served as an attorney for Andrew. After Christine filed a petition for interim attorney fees, the trial court found that neither Andrew nor Christine had the current ability to pay attorney fees and ordered Holwell to disgorge $40,952.61 of attorney fees that Andrew had paid to her. Holwell did not pay the disgorgement amount, and the trial court held her in contempt.   The Appellate Court concluded trial court properly determined Wife's inability to pay her own fees, that her retirement assets should not be considered, nor should she be ordered to liquidate a real estate asset. Turning to the issue of funds paid to Husband and whether they were subject to disgorgement, the Appellate Court stated:  We find the most reasonable interpretation of the term “available funds,” as that term relates to previously paid “retainers or interim payments” to an attorney as used in section 501(c-1)(3) of the Act, are those funds that are currently being held for a client that have not yet been earned by the attorney at the time the attorney is given notice of the petition for interim attorney fees and would be “available” to be returned to the client if the attorney was to immediately cease services. We reverse the disgorgement order and vacate the trial court’s order finding Holwell in contempt of court.

2 Appellate Cases Posted 1-23-17

1. Public Pensions: Affirmed: Trial court had jurisdiction to enforce Settlement Agreement between pension fund and municipality where agreement expressly provided that circuit court retained jurisdiction to enforce terms; municipality properly deemed to owe amounts for which it should have levied taxes in past years; and attorneys' fees properly awarded to pension fund per settlement agreement. Harris, J.

No. 2017 IL App (1st) 153095  Board of Trustees of the Harvey Police Pension Fund v. City of Harvey  Filed 1-23-17 (TJJ)

The City of Harvey appeals from a circuit court order enforcing the terms of a settlement agreement entered into between the City of Harvey and the Board of Trustees of the Harvey Police Pension Fund. In 2006, the Board of Trustees of the Harvey Police  Pension Fund filed suit against the City of Harvey for various violations of the Illinois Pension Code. In February 2008, the parties entered into a settlement agreement by which the City of Harvey agreed to pay the Harvey Police Pension Fund $551,079.83  in back property taxes the City of Harvey had collected but failed to remit. The City of Harvey also agreed, commencing with the 2006-2007 fiscal year, to annually levy a tax upon all taxable property as required in section 3-125 of the Illinois  Pension Code. Affirmed.

2. Criminal Law: Affirmed: Defendant's appointed post-conviction counsel was not obligated to file amended or supplemental post-conviction petition in addition to pro see petition already filed, nor was counsel obligated to withdraw as defendant's counsel if appointed counsel believed petition was without merit. Holdridge, J.

No. 2017 IL App (3d) 140165  People v. Malone  Filed 1-23-17 (TJJ)

The defendant, William A. Malone, appeals from the dismissal of his postconviction petition, arguing that postconviction counsel provided unreasonable assistance by failing to amend the postconviction petition or withdraw as counsel. Affirmed.

1 Appellate Court Case Posted 1-20-17

1. Neglect: Termination of Parental Rights: Depravity: Reversed and Remanded: A conviction  following plea of guilty to charge of  Unlawful Use of Weapon, where the Statute creating that offense of UUW was later declared facially unconstitutional, could not serve as the basis for a finding of depravity in support of a Petition to Terminate Parental Rights, even though respondent had not caused conviction to be vacated in post-conviction proceeding. Appellate Court had the ability to vacate the conviction in the adoption action, even though it was a collateral proceeding.   McDade, J., Wright, J., Dissenting with Opinion.

No. 2017 IL App (3d) 160277  In re N.G.  Filed 1-19-17 (TJJ)

Respondent was found depraved based upon 3 Felony Convictions, one of which was based on a Statute subsequently found facially unconstitutional in People v. Aguilar, 2013 IL 112116. Trial Court's then conducted a best interests hearing, concluding that Respondent's  parental rights should be  terminated. We find: this is an action collateral to the 2008 criminal prosecution; there is, unlike the situation in McFadden, no dispute about which conviction the respondent is attacking and no dispute about which section of the statute was the basis for that conviction; and we are indisputably a court with reviewing authority.  We therefore find the respondent’s 2008 conviction for aggravated unlawful use of a weapon null and void and hold that it cannot serve as a basis for a depravity consideration pursuant to section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2014)). Accordingly, we vacate the 2008 conviction, reverse the circuit court’s unfitness finding and, reverse, by necessity, the court’s best interest determination, and remand the case for further proceedings consistent with this decision.

4 Supreme Court Cases Posted 1-19-17

1. Personal Property Tax/Rental Vehicles: Appellate court reversed, circuit court affirmed: City of Chicago "ruling" that rental vehicles leased in suburbs by City residents would be presumed to have been used in the City and thus subject to City tax relating to leased vehicles violated home rule provision of State constitution due to its extraterritorial effect. Garman, J.

No. 2017 IL 119945  The Hertz Corporation v. The City of Chicago  Filed 1-19-17 (TJJ)

Defendant, the city of Chicago (City), imposes a tax on the use of personal property within its borders. The tax applies to the lease of personal property within the City and to the use of property in the City that is rented or leased outside the City. In 2011,  the City’s director of the department of revenue (now the City comptroller) issued Ruling 11, which provided guidance to suburban vehicle rental agencies located within three miles of Chicago’s borders, including plaintiffs, as to the collection of the tax. Personal Property Lease Transaction Tax Second Amended Ruling 11 (eff. May 1, 2011) (Ruling 11). Ruling 11 stated that beginning July 1, 2011, in the event of an audit, the City department of revenue (Department) would hold the suburban rental  agencies responsible for paying the tax unless there was written proof that the lessee was exempt from paying the tax based upon the use of the leased vehicle outside the City. In the absence of such proof, Ruling 11 provided, the Department would assume  that a customer who is a Chicago resident would use the leased vehicle primarily in the City and that a customer who is not a Chicago resident would use the vehicle primarily outside the City.

2. Criminal Law: Appellate court and circuit courts affirmed: Defendant's post-conviction petition not filed timely and therefore properly dismissed despite seeming ambiguity with respect to deadline where defendant does not file a petition for leave to appeal in connection with his direct appeal to appellate court; failure to file petition timely was due to defendant's culpable negligence; and second trial judge could hear and rule upon State motion to reconsider first judge's denial of State's motion to dismiss. Freeman, J.

No. 2017 IL 120310  People v. Johnson  Filed 1-19-17 (TJJ)

Defendant Allen R. Johnson appeals from the dismissal of his postconviction petition as untimely. This court allowed defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Jan. 1, 2015)), and we now consider the timeliness of defendant’s petition  within the meaning of section 122-1(c) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 2008)). For the following reasons, we affirm the judgment of the appellate court.

3. Open Meetings Act: Appellate and circuit courts affirmed: School district complied with requirements of State Open Meetings Act where "public recital" of item on board's agenda relating to separation agreement reached in closed sessions with outgoing school superintendent was sufficient under tha Act; it was not necessary for public recital to list "key terms" of agreement, or agreement itself. Garman, J.

No. 2017 IL 120343  The Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois  Filed 1-19-17 (TJJ)

On administrative review, the circuit court of Sangamon County reversed the Attorney General’s binding opinion finding violations of the Open Meetings Act (Act) (5 ILCS 120/1 et seq. (West 2012)). The appellate court affirmed the judgment of the  circuit court. 2015 IL App (4th) 140941. This court granted the Attorney General’s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015). The Illinois Association of School Boards, Illinois Association of School  Administrators, and Illinois Association of School Business Officials filed an amicus curiae brief pursuant to Illinois Supreme Court Rule 345 (eff. Sept. 20, 2010), as did the Illinois Municipal League. For the reasons that follow, we affirm the judgment of  the appellate court.

4. Public Employment/Discharge Hearing: Appellate court reversed, circuit court affirmed: In case where city police officer was terminated following hearing in front of police board, as to which decision he did not seek administrative review, subsequent request by officer for arbitration under collective bargaining agreement was properly barred by waiver and res judicata as issues in second claim requesting arbitration could have been litigated in initial hearing before police board. Thomas, J.

No. 2017 IL 120643  The Village of Bartonville v. Lopez  Filed 1-19-17 (TJJ)

At issue in this case is whether defendants, Salvador Lopez and Policemen’s Benevolent Labor Committee, Inc., are precluded from seeking grievance arbitration of Lopez’s termination from his employment with plaintiff Village of Bartonville’s police  department. The trial court granted summary judgment in favor of plaintiff on its complaint for declaratory judgment and to stay arbitration. The appellate court, with one justice specially concurring and one justice dissenting, reversed the trial court and  remanded the case to the trial court with directions to order the parties to proceed to arbitration. 2016 IL App (3d) 150341. This court allowed plaintiff’s subsequent petition for leave to appeal.

2 Appellate Cases Posted 1-17-17

1. Filing Fees: Motions to Vacate:  Grand of 2-615 Motion reversed:  Section 27.2a(g)(2) of the Clerks of Court Acts, which imposes a fee for filing a petition to vacate or modify "any final judgement or order of court" allows the imposition of a fee only for final judgements and final orders.  It does not apply to non-final orders such as dismissals for want of prosecution.  A dismissal for want of prosecution does not become final until the expiration of plaintiff's one year absolute right to refile under the Code of Civil Procedure.  Where Plaintiff seeks mandamus relief to compel an officials compliance with the law, and not a tort action seeking damages, Plaintiff need not demonstrate an express or implied grant of a private right of action in the relevant Statute. Mason, J. 

No. 2017 IL App (1st) 151738   Gassman v. The Clerk of the Circuit Court of Cook County   Filed 1-17-17 (MGB)

Section 27.2a(g)(2) of the Clerks of Courts Act (Act) imposes a fee for filing a petition to vacate or modify “any final judgment or order of court.” 705 ILCS 105/27.2a(g)(2) (West 2012). Pursuant to this section, in separate underlying cases, plaintiffs were each charged a $90 fee for filing a petition to vacate a dismissal for want of prosecution. Plaintiffs paid under protest and then filed the present lawsuit, seeking mandamus relief and arguing that the fees were not authorized by the statute because a dismissal for want of prosecution is not a final order of court. The Clerk sought dismissal under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)), arguing that the word “final” in section 27.2a(g)(2) applies only to judgments, not to orders of court. The trial court dismissed the action. Plaintiffs appeal, arguing that the Clerk’s interpretation of the statute is incorrect. We agree with plaintiffs and reverse. Although this is presumably a fictitious name, there is no indication in the record that “A.N. Anymous” obtained leave of court to file a complaint under a fictitious name, as required by Illinois law. 735 ILCS 5/2-401(e) (West 2014) (parties may only appear under fictitious names “[u]pon application and for good cause shown”). Accordingly, on remand, we direct plaintiffs to file an amended complaint omitting any fictitious names.

2. Criminal Law:  Jury Waiver: Armed Habitual Criminal Statute Facially Constitutional: One Act, One Crime:  Affirmed in Part, Reversed only as to One Count: For a jury waiver to be effective, the trial court must ensure that the defendant knows that the facts of his case would be determined  by a judge and not a jury and the resulting consequences of that decision. A jury waiver is generally valid where defense counsel waives that right in open court and the defendant does not object to the waiver. Defendant bears the burden of establishing that his jury waiver was invalid.  Armed Habitual Criminal Statute is not facially unconstitutional. An attack on a statute as facially unconstitutional is the most difficult challenge to mount. People v. Davis, 2014 IL 115595, ¶ 25. Only where there are no circumstances in which the statute could be validly applied is a statute facially unconstitutional. Id. A statute is not facially invalid merely because it could be unconstitutional in some circumstances. Id. Accordingly, a facial challenge cannot succeed if any circumstance exists where the statute could be validly applied.  The one-act, one-crime rule prohibits convictions for multiple offenses based on the same single physical act.  Under the one-act, one-crime rule, a court should impose a sentence on the more serious offense and vacate the less serious offense.  Mason, J.

No.2017 IL App (1st) 143632   People v. West  Filed 1-17-17 (MGB)

Following a bench trial, defendant Esau West was convicted of (1) armed habitual criminal (AHC), (2) aggravated unlawful use of a weapon (AUUW), and (3) unlawful use of a weapon (UUW) by a felon. The trial court imposed a six-year imprisonment term for each conviction, to be served concurrently. On appeal, West claims that (1) his jury waiver was invalid because the trial court failed to adequately admonish him, (2) the AHC statute is facially unconstitutional, and (3) his AUUW conviction must be vacated because it was based on the same physical act—possession of a loaded firearm—as his AHC conviction. The trial court adequately admonished West that by signing the waiver form and tendering it to the court, he would be waiving a jury trial and that the court, and not a jury, would hear the evidence. Consequently, the trial court adequately the trial court adequately conveyed to West that his case would not be heard by a jury. The fact that the trial court did not inquire into whether West’s waiver was the product of any promise or threat is an insufficient basis to undermine his otherwise valid waiver. Significantly, at no point did West object to his case proceeding to a bench trial despite his presence in court; instead, he affirmatively indicated that he understood he was waiving his right to have a jury hear the evidence in his case. A facial unconstitutionality challenge to the AHC statute on grounds identical to those raised by West has been previously considered and rejected by two different panels of this court in People v. Johnson, 2015 IL App (1st) 133663, and People v. Fulton, 2016 IL App (1st) 141765. We find no basis to invalidate the substantial authority upholding the constitutionality of the AHC statute and adopt the soundly reasoned decisions in Johnson and Fulton. Accordingly, we reject West’s claim that the ACH statute is facially unconstitutional as a violation of due process. The State acknowledges that West’s convictions for AHC and AUUW are both based on West’s possession of the same loaded 9-millimeter handgun and concedes that his less serious conviction of AUUW must be vacated. We agree with the parties that West’s convictions for AHC and AUUW violate the one-act, one-crime rule because they arose out of the same physical act—possession of the same loaded firearm. Because West’s AUUW conviction is a Class 2 felony ( and his AHC conviction is a Class x felony, we vacate the less serious offense of AUUW and direct the clerk of the circuit court to correct West’s mittimus by vacating the AUUW conviction.

1 Appellate Case Posted  1-12-17 and 2 Cases Posted 1-13-17

1. Orders of Protection: Trial Court Affirmed:     In the absence of a record of proceedings and sufficient common law record, Court will presume that the Trial Court's Order conformed to the law and had a sufficient factual basis.  Carter, J., McDade, J., dissenting with written opinion urging dismissal of the Appeal.

No. 2016 IL App (3d) 160070   Lynn v. Brown   Filed 1-12-17 (MGB)

Respondent appealed grant of Plenary Order asserting that he was not allowed to present evidence. No report of proceedings of the plenary hearing was filed and the common law record did not indicate the manner in which the hearing was conducted. Respondent was granted parenting time by separate Order incorporated in the Plenary Order after the filing of the Notice of Appeal.  The Majority found the allegations of the Petition supported the entry of the Order.

2. Criminal Law: Domestic Battery:  Jury Finding of Guilty Affirmed: Other-crimes evidence in Domestic Battery case under 725 ILCS 5/115-7.4  may be admissible for any relevant purpose, including to establish Defendant's  propensity to commit the charged offense.  In admitting such evidence, the trial court must balance the probative value of the evidence against its prejudicial effect, considering, in particular, the other crime's proximity in time and degree of factual similarity, in addition to other relevant facts and circumstances. The other-crimes evidence need only have "general similarity" to the offense charged.   In reviewing the sufficiency of evidence, the Appellate Court, determines whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.  The combination of the recorded statements of the recanting victim and the testimony concerning the similar prior acts, was sufficient to sustain a conviction. Steigmann, J.

No. 2016 IL App (4th) 140658   People v. Heller   Filed 1-12-17 (MGB)

Defendant sentenced to 4 1/2 years after being convicted of Domestic Battery following jury trial in which victim recanted, her recorded statement was entered into evidence, and testimony of former spouse of the defendant concerning an alleged battery occurring in 2010 was admitted. Considering victim's  statements to police, along with the testimony of former wife, we conclude that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of domestic battery.  In this case, the other crime and the charged offense were similar enough to support admitting the other-crimes evidence. During both alleged offenses, defendant positioned himself on top of his victim and struck her on the face. In addition, both offenses were a reaction by defendant to the prospect of another romantic partner being involved with the victims, who had both been romantic partners with defendant. Both attacks occurred in the home of the victim. Defendant can not claim error in Instruction regarding evdence of other crimes where he affirmatively acquiesced to the limiting instruction. Note: The Court provides a proposed modification of IPI 3.14 to use in such cases, referencing a prior unpublished 1st District Decision.

3. Criminal Law: Sexual Exploitation of a Child: Affirmed:   Trial Court properly admitted testimony of prior Wife that Defendant had repeatedly suggested that they demonstrate sex acts in the presence of his son (her stepson) to teach son about sex in prosecution for crime requiring that such acts be performed "with knowledge that a child... would view his or her acts."  Defendant's argument that his words in suggesting sex acts be demonstrated  were protected free speech and were not "conduct"  is not well founded.  Jury was properly given limiting instruction IPI 3.14.   Carter, J., Schmidt, J.

No. 2016 IL App (3d) 140770   People v. Gordon   Filed 1-13-17 (MGB)

Defendant, Douglas E. Gordon, appeals from his conviction for sexual exploitation of a child. He argues that the trial court erred in allowing the jury to hear evidence of statements he made years prior to the events in question. We affirm. The State filed a motion to admit certain evidence. In the motion, the State alleged that the evidence at trial would show that defendant engaged in oral sex and sexual intercourse with his girlfriend in front of his son in an attempt to teach his son about sex. The State sought to introduce evidence that defendant had suggested to his then-wife, approximately two to three years earlier, that they demonstrate sexual intercourse for their son. The State argued that such evidence was relevant to show defendant’s intent, motive, and absence of a mistake. The State argued that the testimony in question was not “other crimes evidence” and was not “especially prejudicial in any way.” Defense counsel argued that Carolyn’s credibility was lacking and the evidence presented would be “far more prejudicial than it is probative.” The trial court ruled that Carolyn’s testimony would be admissible. To be sure, Carolyn’s testimony did present some danger of unfair prejudice. Evidence that defendant repeatedly stated a desire to engage in sexual intercourse in front of his young son presents a risk of convincing the jury that defendant “is a bad person deserving punishment.” People v. Donoho, 204 Ill. 2d 159, 170 (2003). Such risk, however, is ever-present in cases concerning sexual offenses committed against minors. Carolyn’s testimony was strictly limited to the factual similarities between defendant’s prior statements and the events in question, and that testimony was of a high probative value. Moreover, the trial court instructed the jury that Carolyn’s testimony could only be considered insofar as it was probative of defendant’s mental state or a lack of mistake. See Ill. R. Evid. 105 (eff. Jan. 1, 2011) (requiring a trial court to restrict the evidence to its proper purpose and to thus instruct the jury). Accordingly, we find that the trial court did not abuse its discretion in concluding that probative value was not “substantially outweighed by the danger of unfair prejudice.”

2 Appellate Cases Posted 1-9-17

Criminal Law: Affirmed:  Based on the nature of the attack and the significance of the injuries inflicted, a trier of fact could conclude the defendant intended to kill the two victims.  In cases where there is no witness with personal knowledge of what a recording portrays, a sufficient foundation may be laid under the silent witness theory. Under this theory, a recording may be admitted without the testimony of a witness with personal knowledge of what the recording portrays as long as there is sufficient proof of the reliability of the process that produced the recording. Generally, this is shown if the recording’s proponent presents “evidence as to (1) capability of the device for recording; (2) competency of the operator; (3) proper operation of the device; (4) preservation of the recording with no changes, additions, or deletions; and (5) identification of the speakers.  Defendant has forfeited the issue with respect to mental health records as he failed to include any of the mental health records in the record before this court. Harris, J.

No. 2017 IL App (1st) 142085 People v. Viramontes  Filed 1-09-17 (ATH)

On appeal, defendant challenges his conviction for attempted murder, the admission of jail house phone recordings, and the trial court’s refusal to tender all of co-defendant Marcy Cruz’s mental health records. After a review of the facts and relevant case law, we conclude the facts of this case are such that a jury could find the defendant intended to kill both victims when he violently struck each of them in the head with a baseball bat. We further find the trial court did not abuse its discretion in admitting jail house phone tapes, because the State had laid a sufficient foundation. Finally, we conclude that defendant’s failure to include mental health records on appeal results in the forfeiture of this issue.


Criminal Law:  Remanded: The statutory amendment in this case, that is, removal of the clause limiting the certification requirement from Rule 604(d) to those defendants moving to withdraw their guilty pleas is clearly procedural.  As such, it may be applied retroactively. It is well-settled that defense counsel must strictly comply with the certification requirements of Rule 604(d). Counsel did not certify that he examined the report of proceedings of the sentencing hearing. Because Rule 604(d) requires counsel to certify that he has examined the transcript of the sentencing hearing, counsel failed to strictly comply with the rule.  As such the remedy is to remand to the trial court for such compliance. O’Brien, J.

No. 2017 IL App (3d) 160019 People v. Evans  Filed 1-09-17 (ATH)

Defendant pled guilty to home invasion and was sentenced to 12 years’ imprisonment. Defendant has tried to challenge that sentence as excessive through a postsentencing motion numerous times, but each time this court has remanded the matter on appeal either because defense counsel failed to strictly comply with Illinois Supreme Court Rule 604(d) or on jurisdictional grounds. On this appeal, defendant once again argues that his attorney failed to strictly comply with Rule 604(d). We agree and must remand the matter for strict compliance with that rule.

5 Appellate Cases Posted 1-6-17

1. Citation to Discover Assets: Affirmed: Trial court properly granted 2-1401 relief to third party served with a citation to discover assets against whom a judgment was entered in default for failure to respond to the citation, where the citation was filled out improperly and where the third party held no assets of the judgment debtor and had no relationship with that party. Burke, J.

No. 2016 IL App (1st) 160778  R&J Construction Supply Co. v. Adamusik  Filed 1-5-17 (TJJ)

On October 1, 2008, plaintiff, R&J Construction Supply Company, Inc., filed a complaint against Gregory Adamusik, d/b/a United Masonry & Tuckpointing, alleging breach of contract. Plaintiff obtained a default judgment against Adamusik in the amount  of $9395.84 plus costs. At plaintiff’s request, the circuit court revived the judgment on June 23, 2015. On June 26, 2015, plaintiff issued a third-party citation to discover assets (CDA) to appellee, Edmar Corporation, in order to recoup any funds owed to  Adamusik/United Masonry from Edmar. On August 25, 2015, following Edmar’s failure to answer or appear again, the trial court confirmed the conditional judgment and entered a final judgment against Edmar in the amount of the Adamusik judgment of  $9395.84 plus costs and interest. On November 23, 2015, Edmar filed a petition to vacate the judgment entered against it pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)) arguing that plaintiff failed to  establish a basis to issue its initial third-party citation to Edmar and that Edmar had no relationship with plaintiff or Adamusik. Edmar argued that the citation was not properly filed and any judgment based on the improperly filed citation should be vacated.  After a hearing, the trial court granted the section 2-1401 petition, vacated the conditional and final judgments, and dismissed the citation against Edmar. Plaintiff now appeals.

2. Juvenile Delinquency: Reversed and remanded: Trial court erred in ruling that juvenile respondent in gun prosecution would not be able to learn from testifying prosecution officer location of surveillance point from where officer purportedly observed respondent, and trial court erred in conducting in camera interview of officer in presence of prosecutor but not respondent's attorney. Hoffman, J.

No. 2016 IL App (1st) 162381  In re Manuel M.  Filed 1-5-17 (TJJ)

The respondent, Manuel M., appeals from the trial court's judgment adjudicating him a delinquent minor by reason of his commission of two counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a) (West 2014)) and one count of  unlawful possession of a firearm (UPF) (720 ILCS 5/24-3.1(a)(1) (West Supp. 2015)) and the resulting sentence of 18 months' probation and 30 days' commitment to the Juvenile Temporary Detention Center with the order of commitment stayed. For the reasons which follow, we reverse the respondent’s delinquency adjudication and sentence and remand the matter for a new trial.

3. Real Estate Tax Sales: Affirmed: Trial court properly denied petition for tax sale and tax deed, where petitioner's efforts to serve homeowner were deemed "cursory" and did not constitute a bona fide attempt to comply with service requirements such that petitioner was not entitled to a sale in error and a refund. O'Brien, J.

No. 2016 IL App (3d) 150809  In re Application of the County Collector  Filed 1-6-17 (TJJ)

Petitioner Steve Sodeman bought a property owned by Mary Gatewood at a tax sale and filed for a tax deed. The trial court denied his petition because Sodeman failed to serve the property owner and taxpayer. He subsequently sought a sale in error, which  the trial court also denied, finding that Sodeman did not make a bona fide attempt to comply with the statutory notice requirements. We affirm.

4. Domestic Relations/Child Support: Affirmed: Trial court's award of 50% of husband's severance check to pay back child support was proper, and was not subject to being reduced because of husband's obligation to pay child support to children with second ex-wife. Carter, J.

No. 2016 IL App (3d) 160420  In re Marriage of Schomburg  Filed 12-14-16 (TJJ)

This appeal arises from posttrial proceedings stemming from the dissolution of the marriage between the respondent, Duane Osland, and his first ex-wife, the petitioner, Julie Schomburg. Duane appeals the trial court’s denial of his request for  reimbursement of monies garnished from his severance and bonus checks, which had been paid to Julie for child support and child support arrearages. On appeal, Duane argues that he not only has an obligation to pay child support to Julie, but he also has  an obligation to pay his child support for his daughter from his second marriage with Tunde Osland, his second ex-wife. Tunde is not a party in this case. Duane requests this court to (1) reapportion the 50% lien amounts that were placed on his bonus and  severance checks and redistribute the money equally between his two current child support orders and (2) vacate the child support order from his other divorce case (case number 14-D-03) ordering him to pay $3452.42 from his severance check to his  second ex-wife, Tunde. We affirm the trial court’s denial of Duane’s petition, in which he requested the reallocation of the garnished amounts that he had styled as a petition to modify child support.

5. Workers' Compensation: Affirmed: Claimant's request for additional benefits in connection with workers' compensation claim after initial award properly denied where claimant failed to prove a material change in his mental or physical condition after the initial award. Hoffman, J.

No. 2017 IL App (1st) 1600005WC  Murff v. Illinois Workers' Compensation Comm'n  Filed 1-6-17 (TJJ)

The claimant, Anthony Murff, appeals from an order of the circuit court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission), denying his petition pursuant to section 19(h) of the Workers  Compensation Act (Act) (820 ILCS 305/19(h) (West 2014)) by reason of his failure to present evidence demonstrating a change in his physical or mental condition. For the reasons which follow, we affirm the judgment of the circuit court.

Supreme Court Cases Posted 12-15 & 12-30-16

1. Criminal Law: Appellate court reversed, circuit court affirmed: Defendant in first degree murder and arson case requested separate verdict forms for separate murder counts under 9-1(a)(1), (a)(2), and (a)(3), but was denied. Following return of general verdict of guilty of first degree murder and arson, defendant received sentences of natural life and 30 years, consecutive. Defendant's 2-1401 petition, filed after two-year limitation in that section, was time-barred and properly dismissed by circuit court, as sentences imposed  were not void. Theis, J.

No. 2016 IL 118613  People v. Price  Filed 12-30-16 (TJJ)

Defendant, Damen Price, filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure, arguing that his natural life sentence for first degree murder was void. The trial court dismissed the petition. The appellate court  reversed the dismissal and remanded for resentencing. 2014 IL App (1st) 130037-U, ¶ 31. In light of our decision in People v. Castleberry, 2015 IL 116916, in which we abolished the so-called “void sentence rule,” we reverse the judgment of the appellate  court and affirm the judgment of the trial court dismissing defendant’s petition.

2. Criminal Law: Appellate court reversed, circuit court affirmed: In sentencing defendant for third successive Class 2 conviction, trial court properly sentenced defendant as a Class X offender, as statutory requirement that defendant be "over the age of 21 years of age," relates to defendant's age at time of conviction, not time at commission of offense. Thomas, J.

No. 2016 IL 119659  People v. Smith  Filed 12-30-16 (TJJ)

Defendant, Matthew Smith, was charged by indictment with aggravated battery of a corrections officer, a Class 2 felony. Following a jury trial in the Livingston County circuit court, defendant was found guilty. Defendant was sentenced as a Class X  offender to six years in the Department of Corrections. The appellate court affirmed defendant’s conviction but vacated defendant’s sentence and remanded for a new sentencing hearing, holding that defendant was not eligible for Class X sentencing. 2015  IL App (4th) 130453-U. This court granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

3. Disability Pensions: Appellate court affirmed in part, vacated in part: Firefighter who suffered duty-related heart attack and was thus eligible for "occupational disease disability pension" was not entitled to "catastrohic injury pension," as the two were not synonomous, and pensioner thus not entitled to premium-free health insurance benefits. Thomas, J. (Kilbride, concurring in part and dissenting in part).

No. 2016 IL 119889  Bremer v. The City of Rockford  Filed 12-30-16 (TJJ)

In Krohe v. City of Bloomington, 204 Ill. 2d 392 (2003), this court held that the phrase “catastrophic injury” in section 10(a) of the Public Safety Employee Benefits Act is synonymous with an injury  resulting in a line-of-duty disability pension under section 4-110 of the Illinois Pension Code. The primary issue in this case is whether the phrase “catastrophic injury” in section 10(a) is also synonymous  with an injury resulting in an occupational disease disability pension under section 4-110.1 of the Pension Code. Based on our decision in Krohe and subsequent cases defining “catastrophic injury,” we hold that the  legislature did not intend for that phrase to be synonymous with a disease resulting in the award of an occupational disease disability pension.

4. Election Law/Referendum: Ballot provision seeking vote on term limits for village president was not improperly vague and ambiguous, despite claim that referendum did not expressly provide whether it would have retrospective effect. Kilbride, J. (Thomas, J., sp. concurring).

No. 2016 IL 121563  Johnson v. Ames  Filed 12-30-16 (TJJ)

This cause is before us on the appellate court’s certificate of importance pursuant to Illinois Supreme Court Rule 316 (eff. Dec. 6, 2006), addressing whether a referendum seeking to impose term limits on the elected office of village president in the village  of Broadview was invalid because it was vague and ambiguous. The village election board concluded that the proposition was vague and ambiguous because it did not clearly state whether the term limits were prospective or retroactive. On judicial review,  the trial court reversed and reinstated the referendum on the November 8, 2016, general election ballot, finding the language was not vague or ambiguous. The appellate court affirmed. Because of the time constraints present in this election case, we granted the appellant’s emergency motion for expedited consideration of the certificate of importance and affirmed the judgment of the appellate court, with our opinion to follow. We now issue our opinion on the question presented in the appellate court’s  certificate of importance.

5. Criminal Law: Appellate court and circuit court affirmed: Proper rule to apply in deciding whether to instruct jury on lesser offense is whether there is "some evidence" that would support the giving of the instruction, not "some credible evidence," and trial court in this case properly refused to instruct jury in murder case on involuntary manslaughter and second degree murder based on unreasonble provocation, even though jury was instructed as to second degree murder based on unreasonable belief in self-defense. Garman, J. (Burke, J., dissenting).

No. 2016 IL 118882  People v. McDonald  Filed 12-15-16 (TJJ)

Defendant, Stanley McDonald, was convicted in the circuit court of Cook County of the first degree murder of his boyfriend, Lawrence Gladney. The incident took place in May 2004 during a physical altercation between defendant and Gladney, who lived together in an apartment on West 111th Street in Chicago. Defendant was initially tried in 2007 and was convicted of first degree murder. That conviction was overturned on appeal due to an erroneous jury instruction and the cause remanded for a new trial. People v. McDonald, 401 Ill. App. 3d 54 (2010). In February 2012, defendant was tried for first degree murder a second time and convicted. The trial court instructed the jury on second degree murder, unreasonable belief in self-defense, but declined to give instructions on second degree murder due to serious provocation or involuntary manslaughter. The trial court sentenced defendant to 27 years’ imprisonment. The appellate court affirmed, finding that the trial court did not abuse its discretion in refusing the tendered instructions. 2014 IL App (1st) 121009-U. This court granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315.

6. Morgage Foreclosure: Appellate and circuit courts affirmed: Trial court properly dismissed mortgagor's tort complaint for negligent infliction of emotional distress, in connection with claim that contractors hired by mortgage bank to "winterize" seemingly abandoned foreclosed property inflicted emotional distress on homeowner who was still in home, as plaintiff did not allege "physical impact," and claim for inentional infliction of emotional distress properly dismissed for lack of "outrageous behavior" on part of defendants. Freeman, J. (Garman, sp. concurring).

No. 2016 IL 120041  Schweihs v. Chase Home Finance, LLC  Filed 12-15-16 (TJJ)

This tort case arose out of foreclosure proceedings involving plaintiff Melinda Schweihs’s home. Plaintiff sued defendants Chase Home Finance, LLC (Chase), Safeguard Properties, Inc. (Safeguard), Todd Gonsalez, and Edilfonso Centeno for numerous torts, including emotional distress, as a result of Gonsalez and Centeno entering her home. Her emotional distress claims, which are at issue here, were dismissed by the circuit court, and the appellate court affirmed. 2015 IL App (1st) 140683. This court allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). For the following reasons, we affirm the judgment of the appellate court.

7. Parental Rights: Appellate court reversed, circuit court affirmed: Appellate court erred in ruling that State had to show that parent "willfullly" failed to maintain a reasonable degree of interest in parent's child before authorizing termination of parental rights, as Adoption Act contains no requriement that "willfulness" be proven. Garman, J.

No. 2016 IL 120232  In re M.I.  Filed 12-15-16 (TJJ)

The State filed a petition to terminate the parental rights of J.B. for failing to maintain a reasonable degree of interest, concern, or responsibility for his daughter M.I.’s welfare (750 ILCS 50/1(D)(b) (West 2014)) and for failing to make reasonable progress toward the return of M.I. (750 ILCS 50/1(D)(m) (West 2014)). The juvenile court granted the State’s petition. The appellate court, in a split decision, reversed and remanded, finding that the trial court’s conclusions were against the manifest weight of the evidence. The dissenting justice would have affirmed the judgment of the juvenile court. We allowed the State’s petition for leave to appeal, pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015), to determine (1) whether the appellate court improperly grafted a willfulness requirement onto subsections (b) and (m) of the Adoption Act (750 ILCS 50/1(D)(b), (m) (West 2014)), (2) whether the juvenile court erred by not expressly stating that it did not consider evidence outside the nine-month period in ruling on subsection (m), (3) whether the juvenile court’s ruling was against the manifest weight of the evidence, and (4) whether the State is limited to asserting subsection (p) when petitioning to terminate an intellectually disabled parent’s rights.

3 Appellate Court  Cases Posted 01-04 and 01-05-17

1. Personal Injury: Premises Liability: Distraction Exception to Open and Obvious Condition:  Summary Judgment: Affirmed:  Where open and obvious condition is admitted, distraction exception to rule that no duty exists was not applicable where Plaintiff fell in an excavation adjacent to sidewalk after turning around upon hearing skidding vehicle tires. Lavin, J.

No. 2016 IL App (1st) 153539  Peters v. R. Carlson & Sons, Inc.  Filed 1-4-17 (MGB)

Plaintiff sued contractor building gas station for negligence and owner for negligence, negligent hiring and negligent supervision. The judgment of the circuit court was vacated, and the cause remanded. The distraction exception applies to distractions foreseeable in special circumstances that would cause persons to be distracted at the site of the plaintiff’s incident, not commonplace distractions that could occur anywhere. We consider plaintiff’s distraction, a braking sound behind him as he walked along a street, commonplace and not a special circumstance. Moreover, while not by itself decisive, it weighs heavily against foreseeability that there is no evidence or allegation that defendants contributed to plaintiff’s distraction. We find the distraction exception inapplicable as a matter of law. We conclude that the trial court did not err in granting summary judgment for defendants.

2.    Criminal Law: Summary Suspension: Motion to Suppress: Consensual Encounters; Community Caretaker Exception:  Reversed:  Encounters between police and citizens that involve no coercion or detention do not implicate Fourth Amendment interests and are referred to as consensual encounters. Distinct from consensual encounters, the community caretaking Doctrine 'is analytically distinct from consensual encounters and is invoked to validate a search or seizure as reasonable under the fourth amendment.' The Doctrine applies where law enforcement officers are performing some function other than investigation of a crime, and the search and seizure must be reasonable because it is undertaken to protect the safety of the general public.  Officer may ask to examine identification without reaching the level of a seizure so long as not convey compliance is required. Even if a seizure occurred when Officer took license and insurance to his squad, the Officer had reasonable articulable suspicion that Defendant was operating a vehicle under the influence of drugs. Mere fact that Officer testified that Defendant claimed he was unable to urinate to provide a sample for testing did not establish a prima facie case that he did not refuse chemical testing. There must be evidence that it was physically or psychologically impossible for him to urinate. Moore, J.

No. 2016 IL App (5th) 150244  People v. Biagi  Filed 1-5-17 (MGB)

Defendant, operating a vehicle on a two lane, rural road at near 1:00 a.m. at 32 miles an hour in 50 mile per hour zone, pulled over at top of hill partially blocking roadway as officer approached form the rear in his squad.  Officer asserts he pulled behind the stopped vehicle as a motorist assist upon the assumption Defendant was in mechanical or other distress. Officer activated forward facing, white, "take down" lights and rear facing emergency lights. Trial Court found the actions to be a seizure.    In summary, there was no coercive behavior by Williams, nor any threat thereof, nor was there any physical force or show of authority to restrain the defendant's liberty.  For these reasons, we find the encounter between the defendant and Williams–prior to Williams's observation of signs that the defendant was under the influence–was consensual and not a seizure, thereby rendering inapplicable any fourth amendment implications. As a result, the circuit court erred by finding that a seizure had occurred and by granting the defendant's motion to suppress evidence on that basis. Accordingly, we reverse the portion of the circuit court's order that granted the defendant's motion to suppress. Even had a seizure occurred, it was reasonable under the Community Caretaking Doctrine.  Trial Court's grant of Petition to Rescind base on no grounds to stop was similarly flawed.

3. Workers' Compensation:  Affirmed:  Lump sum awards are the exception rather than the rule. A Claimant may convert an award into a lump sum only if it is in the best interests of both the Claimant and the Respondent.  Respondent, which made periodic payments to surviving spouse in excess of the periodic amount of death benefit subsequently awarded, was entitled to credit for those payments made.  W. Hudson, J

No. 2016 IL App (3rd) 160138WC  Salisbury v. Illinois Workers' Compensation Comm'n  Filed 1-4-17 (MGB)

Claimant, Marie Salisbury, widow of Charles Salisbury, appeals an order of the circuit court of Henry County confirming a decision of the Illinois Workers’ Compensation Commission (Commission) denying her motion for a lump-sum payout of benefits awarded in accordance with the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)). Claimant also contends that respondent, Frank’s Flying Service, Inc., is not entitled to a credit against the award based on its overpayment of benefits prior to the arbitration hearing. Claimant has shown no particular need or compelling reason on her or her family’s behalf for a lump-sum payout. Similarly, nothing indicates a lump-sum payout is in respondent’s best interests. Under such circumstances, we cannot say that an opposite conclusion to the Commission’s is clearly apparent and that a lump-sum payout clearly would be in the parties’ best interests. As such, the Commission’s decision on this issue is not against the manifest weight of the evidence. Affirmed.