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

3 Appellate Cases Posted 10-19-16

1.  Traffic Court: Affirmed:  The DUI statute  provides that a person commits aggravated DUI where “the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries. A defect in a charging instrument is formal in nature where that defect “is not material or does not alter the nature and elements of the offense charged.”  A defect is considered substantive where it materially alters the charge in such a way that it cannot be determined whether the grand jury intended such an alteration.  In other words, “once an indictment has been returned by the grand jury, it may not be broadened through amendment except by the grand jury itself.”  It is equally well-settled that where an indictment is challenged for the first time on appeal, a defendant must show prejudice in the preparation of his defense. In that context, an indictment will be deemed “sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.”  Lytton, J.

No. 2016 IL App (3rd) 140604  People v. Swift Filed 10-19-16 (LJD)

Defendant, Loren Swift, appeals from his conviction for aggravated driving under the influence (DUI). He argues first that the trial court should have dismissed the case where the indictment was deficient. Further, defendant contends that the State failed to prove the element of proximate cause beyond a reasonable doubt. We affirm.

2.  Domestic Relations/Civil Procedure: Affirmed: The plaintiff has the burden to show a valid basis for jurisdiction over a nonresident defendant. In meeting this burden, there need only be a prima facie showing that jurisdiction exists. A court has personal jurisdiction over a nonresident defendant where two conditions are satisfied: (1) the requirements of the long- arm statute have been met and (2) the exercise of jurisdiction over the defendant comports with due process under the Illinois and United States Constiutions.  The Illinois long-arm statute, provides in pertinent part: “Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person *** to the jurisdiction of the courts of this State as to any cause ofaction arising from the doing of any of such acts:* * * (10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired[.]  Where the defendant makes trips to Illinois, obtainsproperty, including money, from Illinois residents, and remains in continual communication with Illinois residents, the minimum contacts requirement is satisfied.   “Illinois has a ‘manifest interest’ in providing its residents*** with a convenient forum for redressing injuries allegedly inflicted by out-of-state actors.”  Lyttom, J.

No. 2016 IL App (3rd) 160037 In re Marriage of Difiglio  Filed 10-19-16 (LJD)

Petitioner Stanislawa DiFiglio filed a petition for dissolution of marriage against respondent James DiFiglio. In the dissolution action, Stanislawa filed a third-party complaint against David Malmstedt, James’s brother-in-law and attorney-in-fact, alleging that he owed money to the marital estate. Malmstedt filed a motion to dismiss the complaint for lack of personal jurisdiction.The trial court denied Malmstedt’s motion. Malmstedt filed a petition for leave to appeal the trial court’s denial of his motion to dismiss. We granted Malmstedt’s petition for leave to appeal and affirm the trial court’s order.

3.3. Bankruptcy/Contracts: Affirmed: "A confirmed plan of reorganization is in effect a contract between the parties and the terms of the plan describe their rights and obligations." A bankruptcy plan "operates as an absolute settlement, and the failure to pay unpaid obligations created by the plan will not revive the old debts."   "There is nothing in the [Bankruptcy] Act to suggest that the debtor's failure to achieve promises made in a confirmed plan reinstates an original obligation."  Schwarm, J.

No. 2016 IL App (5th) 150404 Holmon v. The Village of Alorton  Filed 10-19-16 (LJD)

Larkin Holmon, administrator of the estate of Taymond Freeman, appeals from the circuit court's order denying Holmon's motion for partial summary judgment and grantinga motion for judgment on the pleadings filed by the Village of Alorton, the appellee. The appellant seeks to rescind an agreed-upon bankruptcy plan under which the appellee was to make payments to Freeman's estate. We affirm the circuit court's decision denying the appellant's motion for partial summary judgment and granting the appellee's motion for judgment on the pleadings as it relates solely to the issue of rescission. We remand for further proceedings allowing the appellant to enforce the bankruptcy plan payment provisions.

4 Appellate Cases Posted 10-18-16

1.  Criminal Law: Conviction Affirmed but Remanded for Resentencing: A defendant is entitled to a self-defense or defense of others instruction so long as there is slight evidence adduced at trial to support his theory.  Abuse of discretion is the appropriate standard of review. Abuse of discretion is the most deferential standard of review, second only to no review at all. An abuse of discretion occurs when the trial court's decision is "fanciful, arbitrary, or unreasonable to the degree that no reasonable person would agree with it."  Stated differently, we will reverse a trial court's decision for an abuse of discretion only where the decision is "'clearly against logic,' 'without employing conscientious judgment.'"  The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' "  Mason, J.

No. 2016 IL App (1st) 141251  People v. Taylor  Filed 10-18-16 (LJD)

Following a 2014 jury trial, defendant Romaro Taylor was convicted of attempted murder and aggravated battery with a firearm and sentenced as a Class X offender to 36 years of imprisonment. On appeal, he argues that (1) the trial court erred in refusing to instruct the jury on defense of others, (2) trial counsel was ineffective for failing to request a jury instruction that Taylor could not be found guilty of attempted first degree murder if he unreasonably believed he needed to use force in defense of others, (3) the trial court erroneously refused to sentence Taylor as a Class 1 offender on his attempted murder conviction, and (4) the trial court improperly imposed certain fines and fees. For the reasons that follow, we affirm Taylor's conviction, vacate the $2 Public Defender Automation Fee, and remand for resentencing.

2.  Administrative Review: Affirmed in part, Reversed ,in part and remanded: Laches is “ ‘the neglect or omission to assert a right which, taken in conjunction with a lapse of time and circumstances causing prejudice to the opposite party, will operate as a bar to a suit.’ ”  A successful laches defense requires a showing that plaintiff’s delay in bringing suit was unreasonable and that the delay prejudiced the defendant. In civil service cases, an unexplained delay longer than six months is per se unreasonable.  The Administrative Review Law defines “administrative decision” as “any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.”  A n agency lacks the authority to question the validity or constitutionality of a statute"  Mason, J.

No. 2016 IL App (1st) 153106 Hofrichter v. The City of Chicago Heights  Filed 10-18-16 (LJD)

Plaintiff-appellant Benjamin Hofrichter filed suit against his employer, defendant-appellee City of Chicago Heights, as well as defendants-appellees City of Chicago HeightsPolice and Fire Board and Charles Guiliani (collectively, defendants), on November 13, 2014, after he was passed over for a promotion one year earlier on November 13, 2013. Defendants moved to dismiss the suit on the basis that it was barred by laches or, alternatively, that Hofrichter’s sole cause of action was administrative review. The circuit court granted the motion and dismissed the complaint in its entirety. Hofrichter appeals. For the reasons that follow, we affirm in part and reverse in part and remand for further proceedings.

3.  Post Conviction Petition/Ineffective Counsel; Affirmed:  A conviction of an “aggravated felony” makes an alien deportable.  An“aggravated felony” includes “a crime of violence (as defined [in another section] for which the term of imprisonment at [sic] least one year.” From the cited section, we learn that a “crime of violence” includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”   Birkett, J., concurrence by Hutchinson, J.

No. 2016 IL App (2nd) 150872  People v. Dominguez  Filed 10-18-16 (LJD)

Defendant, Jose A. Dominguez, appeals from the denial of his petition for postconviction relief. He asserted that, prior to his guilty pleas in two cases, counsel had failed to adequately discuss the possible adverse immigration consequences of the pleas and that as a result, under, counsel was ineffective. Defendant does not challenge the court’s ruling that his petition was too late as to the earlier of the two cases. We affirm the petition’s denial, holding that, under the branch of the Padilla standard that applies when “the law [was] not succinct and straightforward,” counsel here needed do no more than advise defendant that the pleas might “ carry a risk of adverse immigration consequences.” We conclude that the record shows that defendant was adequately alerted to the possibility of adverse immigration consequences.

4.  Attorney's Fees: Affirmed:  The appellee may urge any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such point was before the trial court’.  Whether the statutory authority on which plaintiffs sought attorney fees and costs is applicable is a question of law, which we review de novo.  “Illinois follows the ‘American Rule,’ which provides that absent statutory authority or a contractual agreement, each party must bear its own attorney fees and costs.”    Knecht, J.

No. 2016 IL App (4th) 150936  Thomann v. The Department of State Police  Filed 10-18-16 (LJD)

Plaintiffs, Illinois Carry, an organization supporting the concealed carrying of firearms, and three individuals, Matthew Thomann, Samuel Finnigan, Jr., and Deanna Knoll, appeal from the circuit court’s order dismissing their petition for attorney fees and costs against defendants, the Illinois Department of State Police (Department), the Department’s then director, the Concealed Carry Licensing Board (Board), and the Board’s then members. The sole issue on appeal is whether the circuit court’s dismissal was in error. We affirm.

No. 2016 IL App (4th) 150936  Thomann v. The Department of State Police  Filed 10-18-16 (LJD)

3 Appellate Cases Posted 10-17-16

1. Criminal Law: Sentence vacated and remanded: Sentence of 60 years' imprisonment for first degree murder for 15-year-old defendant vacated, as sentence was "effectively" a sentence of natural life without parole in violation of Miller v. Alabama; additionally, subsequent amendment of Juvenile Court Act changing automatic transfer age for first degree murder from 15 to 16 years of age was to be applied retroactively, and defendant was entitiled to discretionary transfer hearing in juvenile court to determine whether he should be sentenced as an adult. Harris, J.

No. 2016 IL App (1st) 133294  People v. Ortiz  Filed 10-17-16 (TJJ)

Defendant Erick Ortiz was sentenced to 60 years’ imprisonment for first degree murder. Defendant was 15 years old when the crime occurred. On appeal, defendant contends that his sentence must be vacated and the matter remanded for resentencing  because (1) his sentence resulted from a statutory scheme that violates the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution and (2) the trial court abused its discretion in sentencing him to  a de facto life sentence that is 25 years above the required minimum. Defendant also contends that two of his three murder convictions should be vacated under the one-act, one-crime rule. For the following reasons, we vacate defendant’s sentence and remand for resentencing.

2. Illinois False Claims Act: Affirmed in part and reversed in part: Trial court properly found that defendant was not liable for non-payment of state sales tax in connection with internet sales of goods by defendant, but erred in ruling that defendant should have collected sales tax in connection with "catalog" sales; further, plaintiffs not entitled to award of attorneys' fees and costs. Harris, J.

No. 2016 IL App (1st) 151580  People ex rel. Beeler, Schad and Diamond, P.C.  Filed 10-17-16 (TJJ)

Plaintiff, Beeler, Schad & Diamond, P.C. (relator), filed a claim against defendant, Relax the Back, Corp. (RTB), for damages and civil penalties pursuant to the Illinois False Claims Act (740 ILCS 175/1 et seq. (West 2014)), for failure to collect and remit  use tax on RTB’s Internet and catalog sales to Illinois customers. After a bench trial, the trial court found in favor of relator regarding catalog sales, but in favor of RTB on Internet sales. RTB appealed and relator filed a cross-appeal. On appeal, RTB  contends that the trial court erred in (1) finding liability under the False Claims Act for failing to collect Illinois use tax where it found that RTB made a good faith effort to conduct an investigation into its tax obligations and at all times RTB truthfully  stated that it collected no Illinois use tax and (2) awarding approximately $110,000 in attorney fees based on a purported tax liability of $5181. On cross-appeal, relator contends that the trial court erred in finding that RTB had a substantial nexus to Illinois only for catalog sales, when its finding should have also applied to Internet sales. For the following reasons, we affirm the trial court’s determination of no liability regarding RTB’s Internet sales and reverse its finding of liability on RTB’s catalog sales. We  also reverse the judgment awarding relator attorney fees and costs.

3. Domestic Relations: Affirmed: Trial court did not err in granting emergency petition for dissolution of marriage based on petitioner husband's desire to marry another in face of his impending death. Harris, J.

No. 2016 IL App (1st) 152404  In re Marriage of Breashears  Filed 10-17-16 (TJJ)

On July 27, 2015, a hearing was held on petitioner’s emergency petition requesting a bifurcated dissolution of marriage. At the hearing, petitioner testified that the reason he wished to obtain a bifurcated divorce was so he could marry his paramour and  dispose of his assets while he was still alive. After hearing testimony concerning the investment properties and the condition of petitioner’s health, the trial court granted the emergency petition for bifurcation and dissolved petitioner and respondent’s  marriage. On July 30, 2015, petitioner married his paramour. On August 21, petitioner died. Respondent timely filed her notice of appeal. On appeal, the respondent argues the trial court abused its discretion in granting the petition for bifurcation because  appropriate circumstances did not exist for granting it. We review the trial court’s decision under an abuse of discretion standard. The trial court heard testimony from the parties and was aware of the potential entanglements concerning the marital estate. Based on the record before the trial court and prior case law, we affirm the decision of the trial court finding that appropriate circumstances existed for granting a bifurcated judgment of dissolution.

1 Appellate Case Posted 10-14-16

1. Medical Malpractice: Affirmed: Trial court did not err in refusing to permit plaintiff's expert in med-mal action to testify regarding his opinoin that a mass in the decedent's lung had not changed over a course of time, where that opinion was not disclosed in Rule 213 disclosures, and was not a corollary to opinions already disclosed in Rule 213 materials; and trial court properly sustained objections to plaintiff's closing argument where the argument misstated the law relating to what a reasonable person would have done, rather than the decedent, in granting consent to treatment. Reyes, J.

No. 2016 IL App (1st) 143605  Morrisroe v. Pantano  Filed 10-14-16 (TJJ)

Following a jury trial, William Morrisroe (plaintiff), the special administrator of the estate of Viola Morrisroe (Viola), deceased, appeals the order of the circuit court of Cook County entering judgment on the verdict in favor of Dr. John Pantano (Dr. Pantano) and Suburban Lung Associates, S.C. (collectively defendants). This medical malpractice action stems from the death of Viola after a bronchoscopy during which biopsies were performed by Dr. Pantano. On appeal, plaintiff asserts that the trial court erred in: (1) barring his retained expert from utilizing two CT scans during his testimony to demonstrate that the size of a mass in Viola's lung had not increased in size; and (2) sustaining defense counsel’s objections to certain statements in closing argument relating to his informed consent claim. For the following reasons, we affirm.

3 Appellate Cases Posted  10-13-16

1. Tort Immunity: Premises Liability: Constructive Notice:  Summary Judgement Affirmed:  Although constructive notice is generally a question of fact to be resolved by the jury, it may be resolved by the trial court as a matter of law when the facts are not in dispute and only one reasonable inference can be drawn from the undisputed facts.  For the purpose of section 3-102(a) of the Tort Immunity  Act, constructive notice is established when a condition has existed for such a length of time or was so conspicuous that public authorities, by exercising reasonable care and diligence, might have known of the condition. Burke, 227 Ill. App. 3d at 18. Some of the factors a court considers in determining whether constructive notice exists are the length of time the condition existed and the conspicuity of that condition.  Lapse of time, in and of itself, may be sufficient reason to impute constructive notice to a public entity under certain circumstances. However,  Plaintiff failed to demonstrate constructive notice on the facts presented.    Carter, J.

No. 2016 IL App (3rd) 150014   Barr v. Frausto   Filed 10-13-16 (MGB)

Plaintiff injured ankle when his foot entered a hole located in the grass parkway owned by the City. Plaintiff's expert opined the defect existed for at least 3 years, was conspicuous, and likely the result of the decomposition of a tree previously removed from the premises. Plaintiff's deposition indicated he had regularly walked on the sidewalk adjacent to the parkway and had never noticed the defect. Although plaintiff’s expert witness stated in his affidavit that the hole in the parkway was conspicuous and that it had existed for at least three years prior to the incident, the value of that testimony was completely undercut by the plaintiff’s own testimony when plaintiff stated that he had traveled that same route on his walk or bike ride once a week for the past several years and that he had never noticed the hole in that parkway. See Finley v. Mercer County, 172 Ill. App. 3d 30, 33-34 (1988) (the plaintiffs could not establish for the purpose of avoiding summary judgment that the defect existed for a sufficient time to charge the county with constructive notice of the defect because the plaintiffs’ testimony undercut the basic theory of their case). Under the circumstances of the present case, we find that plaintiff failed to establish a genuine issue of material fact as to the issue of constructive notice.

2. Child Support: Modification of Contributions to Uninsured Medical Expenses: In a proceeding to modify child support, where  the parties stipulate to a   support figure is consistent with statutory guideline support and support is modified retroactive to the date obligee filed a Petition to Modify Support, obligee is not also entitled to a portion (statutory guideline percentage) of obligor's income tax refund.   Former spouse had the burden to demonstrate a disparity of income between her income after taxes and the receipt of child support,  and that of her former husband, and may not simply rely on  their relative gross income and former Husband's increase in gross,  to justify modification of their original judgement in which they agreed to be equally responsible for  uninsured medical  expenses.    Schmidt, J., Carter, J. specially  concurring with written opinion.

No. 2016 IL App (3rd) 150710  In re Marriage of Eastburg   Filed 10-13-16 (MGB)

At a hearing in May 2015, the parties stipulated that Aaron’s child support payments would be $721 bimonthly, applied retroactively to the date Alicia filed her petition. Alicia’s counsel next claimed Alicia was entitled to precisely $3,986.92—28% of Aaron’s 2014 federal income tax refund—and a reduction in her obligation for the minors’ uninsured medical expenses. The trial court denied both requests. Aaron intentionally withheld income from his paycheck, paying every pay period more than he would eventually owe in taxes. This is no different than placing the same amount of money in a savings account that earns no interest or burying it in his backyard. In the absence of fraud, Alicia is not entitled to any percentage of Aaron’s federal income tax return. On the medical expense issue, the trial court reasoned that the parties still had the same employment they had when they originally agreed to equally share the cost of uninsured medical expenses, and the current disparity in their respective incomes was not so great that equity demanded amending their agreement. In claiming there is a substantial disparity in their incomes, Alicia compared the parties’ gross incomes and emphasized the increase in Aaron’s income since the time of their original agreement. Nowhere in her argument on this point, however, does Alicia disclose a straightforward account of her own income, which includes child support payments she receives from Aaron. Comparing the parties’ gross incomes without factoring in tax rates, child support, and other expenses does not establish that the trial court abused its discretion. It was Alicia’s burden to show an abuse of discretion by the trial court. She failed to do so.

3. Termination of Parental Rights: Matter of First Impression:  Affirmed:  The grounds of "extreme or repeated cruelty to the child"  to support a finding of an "unfit person" under Section 1D(e) of the Adoption Act does not require actual physical cruelty to the child in question.  The murder of the childrens' in the presence of one child and repeated abuse of mother in the presence of the children was sufficient to satisfy a finding of extreme or repeated cruelty to the child.   Carter, J.

No. 2016 IL App (3rd) 160265   In re Mi.S.   Filed 10-13-16 (MGB)

The respondent father was criminally charged with the December 19, 2012, murder of his wife, who was the mother of their four minor children. The State filed a petition to terminate the father’s parental rights.  In the petition, the State alleged that the minors’ mother was deceased and the father was an unfit parent in that (a) he failed to maintain a reasonable degree of interest, concern or responsibility to the minors’ welfare  and (b) exposed the minors to extreme or repeated cruelty. The trial court found, by clear and convincing evidence, that the father was unfit based upon the allegations by the State with respect to extreme or repeated cruelty. The trial court found that it was in the best interest of Mi.S., P.S. and Ma.S. to terminate the parental rights of the father and grant DCFS the authority to consent to the adoption of the minors. We acknowledge that “extreme or repeated cruelty” has generally been applied to torturous or other extreme forms of physical abuse. In reviewing the plain language of the statute, we note that 10 the statute does not limit “extreme cruelty” to physical cruelty. If the legislature intended for the statute to include only physical cruelty, the legislature would have so specified.

1 Appellate Case Posted  10-12-16

1. Criminal Law: Motion to Quash and Suppress: Reversed:   Voluntary consent to search is an exception to the fourth amendment's warrant requirementTo be effective, however, the consent must be voluntary, meaning that it was given "absent any coercion, express or implied," and was not "the result of official coercion, intimidation, or deception."  The voluntariness of the consent depends on the totality of the circumstances, and the State bears the burden of demonstrating consent was given voluntarily. Initial refusal to consent to search is an important factor in assessing whether later consent is voluntary.  The fact that a written consent form was signed is not dispositive in determining whether consent to search was voluntary when circumstances show the signature was obtained through coercion.  Voluntariness is a question of fact, and the trial court's finding that consent to search was voluntary will be reversed if it is against the manifest weight of the evidence. People v. Martin, 102 Ill. 2d 412, 426, 466 N.E.2d 228, 234 (1984).  A police officer's giving false or misleading information can vitiate the voluntariness of the consent. Cardenas, 2 An officer making a groundless threat and presenting the occupant of the home with the choice of either consenting or suffering the consequences of the threatened course of conduct can also vitiate consent.    Goldenhersh, J.

No. 2016 IL App (5th) 1140596   People v. Wall   Filed 10-12-16 (MGB)

After a stipulated bench trial in the circuit court of Williamson County, defendant, Robert Wall, was found guilty of production of cannabis sativa plants  and sentenced to 24 months' intensive probation Defendant contends his consent was involuntary since Officer Gill led him to believe his only choice was to consent or be hauled off to jail. The State replies the trial court's finding that defendant voluntarily consented to the search of his home was not against the manifest weight of the evidence. After careful consideration, we agree with defendant that the ends did not justify the means and here the police officer's actions resulted in an unlawful search and seizure. Evidence demonstrated Defendant was called from work to his home by the false representation that his home had been burglarized. He arrived to find approximately 6 armed officers in his yard, after which he was allegedly coerced to consent to the search of his home.

2 Appellate Cases Posted 10-11-16

Babbitt Municipalities, Inc. v. Health Care Service Corp., 2016 IL App (1st) 152662

1. Breach of Contract: Affirmed: Illinois is a fact-pleading jurisdiction; “a plaintiff must allege facts,” not merely conclusions, “that are sufficient to bring his claim within the scope of a legally recognized cause of action.” If the contract terms are too uncertain or indefinite to enforce, allegations of a breach of those terms will not provide a basis for a breach of contract claim. Mikva, J.

No. 2016 IL App (1st) 152662 Babbitt Municipalities, Inc. v. Health Care Service Corp.  Filed 10-11-16 (ATH)


Plaintiff Babbitt Municipalities, Inc. (Babbitt) appeals form the circuit court’s dismissal of its claims for breach of contract against defendant, Health Care Service Corporation (HCSC).  The court dismissed Babbitt’s second amended complaint with prejudice for failing to cure the defects identified in its prior pleadings. 

2. Opening Statements: Reversed and Remanded: While the State has wide latitude in making opening statements, comments only to arouse the prejudice and passion of the jury are improper.  The characterization of the defendant as a criminal had no basis in fact, given that prior to this case; the defendant had never been convicted of a crime. Thus, we can discern no basis for the State’s references to Jones as a criminal other than to inflame the passions of the jury. The State’s derisive characterization was particularly likely to bias the jury against Jones.  Mason, J.

No. 2016 IL App (1st) 141008  People v. Jones Filed 10-11-16 (ATH)


Following a jury trial, the defendant was convicted of three counts of attempted murder and three counts of aggravated battery with a firearm and sentenced to 23 years of imprisonment.  The defendant appeals arguing, among other things, the State’s repeated references to the defendant as a criminal in its opening statement were inaccurate and prejudicial,   Appellate court found the comments made by the State in its opening statement had no basis other than to inflame the passions of the jury and as such, the defendant is entitled to a new trial. 

2 Appellate Cases Posted 10-7-16

1. Search and Seizure: Reversed and remanded: The fourth amendment requires more than some minimal level of objective justification for making a Terry stop.  However, independent corroboration of significant aspects of an informant’s predictions can impart a degree of reliability on the informant’s other allegations sufficient to support an investigative stop.  Fourth amendment guarantees are not implicated when police conduct a search pursuant to a voluntary consent.  An individual who does not have a possessory interest in a vehicle cannot challenge the search of either the exterior or the interior of the car. 

No. 2016 IL App (1st) 152678 People v. Duran Filed 10-7-16 (ATH)

The defendant was charged with one count of possession with intent to deliver 900 grams or more of methamphetamine.  The defendant filed a motion to quash arrest his arrest and suppress evidence arguing the search of the car in which he was riding as well as his bag where the methamphetamine was found was done without consent, articulable factual justification or probable cause.  The trial court granted defendant’s motion after a hearing finding defendant was arrested without probable cause and therefore the seizure of the methamphetamine was unlawful.  The appellate court reversed the trial court’s order granting the motion to quash arrest and suppress evidence.

2. Batson Challenge: Reversed and remanded: Once the court concluded respondent had established a prima facie showing that the prosecutor had exercised peremptory challenges on the basis of race, it required the State to proffer race-neutral reasons for striking black members of the venire.  The trial court’s failure to elicit any race-neutral reason from the State for the exercise of a peremptory requires remand. But no matter what reason is offered by the prosecution for the exercise of a peremptory, it is the trial court’s responsibility at the third stage to evaluate that reason in light of the nature of the case, the exercising attorney’s demeanor and the jury selection process as a whole.  Mason, J.


No. 2016 IL App (1st) 161259 In re A.S. Filed 10-7-16 (ATH)

After a jury trial, minor respondent A.S. was adjudicated delinquent of the offense of residential burglary and sentenced to the Juvenile Department of Corrections.  Respondent seeks a new trial arguing, among other reasons, that the State’s failure to provide any reason for its peremptory challenge to one black member of the venire and the trial court’s failure to inquire into the reason for the challenge as well as other irregularities in the proceedings require remand for a new Batson hearing.  Appellate court reversed, remanded for further Batson proceedings.

2 Appellate Cases Posted 10-6-16

1. Employment Contracts/Duty to Mitigate: Affirmed: In employment action by employee-trader against employer trading company, trial court properly ruled that actions of parties did not modify noncompete provisions of written employment contract, and by its terms agreement eliminated employee's duty to mitigate damages, so that trial court award of $1,000,000 was upheld, as agreement required employer to pay that amount upon employee's resignation. Reyes, J.

No. 2016 IL App (1st) 151801  Reed v. Getco, LLC  Filed 9-30-16 (TJJ)

Defendant Getco, LLC, a proprietary trading and financial services firm, appeals an order of the circuit court of Cook County granting summary judgment in favor of and awarding $1 million to plaintiff Zachariah Reed, a former employee. On appeal,  defendant argues the circuit court erred in: (1) finding defendant did not properly waive the noncompete provision in defendant’s employment agreement with plaintiff; (2) interpreting the language of the employment agreement which granted defendant the  sole and absolute discretion to modify plaintiff’s noncompete restrictions; and (3) finding plaintiff did not have a duty to mitigate damages. For the following reasons, we affirm.

2. Medical Malpractice: Reversed and remanded: In the face of potential juror bias not previously disclosed in voir dire leading to seemingly deadlocked deliberations, trial court erred in replacing juror with alternate, as proper remedy was to order jurors to continue deliberating or declare a mistrial. Lytton, J.

No. 2016 IL App (3d) 150445  Bosman v. Riverside Health System  Filed 10-6-16 (TJJ)

Plaintiff, August Bosman, as special administrator of the estate of Joan Bosman, appeals from the denial of his motion for a new trial. Plaintiff argues that the court erred in replacing a holdout juror with an alternate juror. We reverse and remand.

1 Appellate Case Posted 10-4-16

1.Public Employee Benefits: Affirmed: Trial court properly denied request for injunction sought by City of Chicago retirees seeking to enjoin City from phasing out City's subsidy for retirees' health care. Simon, J.

No. 2016 IL App (1st) 153613  Underwood v. City of Chicago  Filed 9-21-16 (TJJ)

This appeal is taken from the denial of a motion for a preliminary injunction. The case stems from the City of Chicago's plan to phase out the healthcare benefits it offers to its employees. The trial court held that one category of plaintiffs did not have a  clearly ascertainable right in need of protection. The court then ruled that the other category of plaintiffs had some rights given by statute, but that the medical care plan offered by the City for 2016 was not a diminution in their benefits. We affirm.

6 Appellate Cases Posted 10-03-16

1.  FOIA: Correctional Facilities: Affirmed:  Section 7(1)(e-5) of the FOIA provides that records requested by  persons committed to the Department of Corrections "shall be exempt from inspection and copying" if those materials are available in the library of the correctional facility where the requestor is confined and the librarian  and the Department are under no duty to provide copies of such documents.    Pope, J.

No. 2016 IL App (4th) 151024  Cebertowicz v. The Illinois Department of Corrections   Filed 10-3-16 (MGB)

Our research has not disclosed any case specifically interpreting section 7(1)(e-5) of FOIA (5 ILCS 140/7(1)(e-5) (West 2014)) as it relates to the issue raised in this appeal. However, in October 2014, the Illinois Attorney General (AG), in a binding opinion, considered the same claim from an inmate at Lawrence, i.e., that denying him copies of materials available for inspection at Lawrence’s library did not comply with the requirements of section 7(1)(e-5) of FOIA. 2014 Ill. Att’y Gen. Pub. Access Op. No. 14-013 (AG’s Opinion). Since plaintiff can go to his facility’s library and access and/or obtain the materials, they are exempt. Nothing about the word “available” connotes a duty upon the custodian/librarian to copy the items requested. Plaintiff can read them and hand copy them if he so desires. The documents are available to him. Therefore, we find DOC did not violate the requirements of FOIA when it denied plaintiff’s request for copies of the materials, and we affirm the trial court’s order granting DOC’s motion to dismiss.

2.  Animal Control Act: Certified Question Answered, Court Declines to Answer Three Questions:  Does a dog lying in the middle of the road constitute an ‘overt action’ toward the Plaintiff for purposes of the [Act]?  It does not and there is no liability.     Harris, J.

No. 2016 IL App (4th) 150841  Coe v. Lewsader   Filed 10-3-16 (MGB)

For purposes of this appeal, the parties stipulated to the following facts. At 2 a.m. on September 26, 2009, Ryan was intoxicated and operating a motorcycle on a public highway at a speed of 90 miles per hour when his motorcycle collided with defendants’ dog, which was “passively lying in the road.” In sum, based on our review of the Act and relevant case law, we find that a dog’s act of lying passively in the middle of a road does not constitute an overt action that will subject its owner to liability under section 16 of the Act. Thus, the Act does not apply based on the stipulated facts before us. It is well settled that for liability to attach under the Act, “some overt act of the dog toward the plaintiff is required.” King v. Ohren, 198 Ill. App. 3d 1098, 1101-02, 556 N.E.2d 756, 758 (1990). Simply being “an inert or passive force so far as it concerns the injuries of the plaintiff” is not sufficient. Bailey v. Bly, 87 Ill. App. 2d 259, 262, 231 N.E.2d 8, 9 (1967). Rather, the dog must engage in affirmative “behavior or activity *** which cause[s] the injury to the plaintiff.” Id. at 262, 231 N.E.2d at 10.

3.  Criminal Law: Retroactive Application of Castleberry's abolishing of "Void-Sentence Rule: Affirmed:  Under the void-sentence rule, defendants could, at any time, challenge their sentences as void because they were not authorized by statute, thereby bypassing the normal rules of forfeiture. Castleberry, which abolished the void-sentence rule, applies retroactively to  post conviction (collateral) proceedings when Defendant is a attacking a sentence imposed in an underlying case concluded prior to Castleberry.     Disagreeing with People v. Smith,  2016 IL App (1st) 140887.  Steigmann, J.

No. 2016 IL App (4th) 140759  People v. Cashaw   Filed 10-3-16 (MGB)

A jury convicted defendant, James E. Cashaw, of criminal sexual assault, after which the trial court imposed a 12-year prison sentence and a $200 domesticviolence fine. Defendant did not challenge the fine on direct review. In the years that followed, defendant initiated multiple collateral attacks on his conviction, none of which challenged the domestic-violence fine until the Petition under review in this case.  Castleberry applies, the domestic-violence fine is not void, and defendant has forfeited his claim that the fine was unauthorized by statute. We therefore affirm the imposition of the domestic-violence fine.

4.  Criminal Law:   Post-Conviction Petition Dismissed: Void Sentence Rule: Affirmed But Remanded With Directions To Clerk Re Credit for Fines, Costs and Fees: Supreme Court Rule 615(b)(1) allows the Appellate Court to "reverse, affirm or modify  the judgment or order from which the appeal is taken."  Defendant may not raise,  for the first time on appeal from the dismissal of a post-conviction proceeding,  the  claim that he was entitled to credit for one additional day of time served on his sentence.  Pope, J.,   Harris, J.,  Specially Concurring.

No. 2016 IL App (4th) 140712  People v. Morrison   Filed 10-3-16 (MGB)

Defendant, Jose R. Morrison, appeals the first-stage dismissal of his postconviction petition under the Post-Conviction Hearing Act. In his petition, defendant claimed he received ineffective assistance of trial counsel when counsel (1) misinformed him the home invasion conviction would be served at 50% instead of 85% and (2) encouraged him to just say “okay” during the plea admonishments even though counsel knew defendant could not understand the admonishments because he was mentally handicapped. The petition made no reference to any sentencing-credit errors. On July 24, 2014, the trial court summarily dismissed the petition as frivolous and patently without merit.    On appeal, defendant  abandoned the claims in his postconviction petition and instead contends (1) the trial court failed to credit him properly for time he spent in custody awaiting trial, arguing he is entitled to one additional day of credit under the provisions of section 5-4.5-100(b) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-4.5- 100(b), and (2) he is entitled to a $5-per-day credit for time spent in presentence custody. - We adhere to our precedent in Nelson and find we cannot grant defendant the relief he seeks for the reasons stated above, as well as for the reasons discussed in Justice Harris’s special concurrence. However, as we stated in Nelson, defendant may petition the trial court to correct the simple error in arithmetic, as trial courts retain jurisdiction to correct nonsubstantial matters of inadvertence or mistake. In discussing the void-sentence rule, the Court reached same conclusion it did in the Cashaw  case (summarized immediately above). The State concedes defendant is entitled to presentence incarceration credit against the $50 court-finance assessment, the $10 child-advocacy assessment, and the $5 drug- - 10 - court assessment. We accept the State’s concession and hold these three assessments are fines against which defendant can receive a $5-per-day credit for the time he spent in presentence custody. Accordingly, we order the clerk of the circuit court to correct the fines, fees, and costs order to reflect this credit.

5.  Criminal Law:   Double Jeopardy: Empaneled and Sworn Jury:  Other Crimes Evidence: Extended Term for Lesser of Offenses: Ineffective Assistance of Counsel:  Affirmed in Part, Reversed in Part, Remand for Sentencing:   1) Jeopardy does not attach where only 8 of 12 jurors were sworn prior to Trial Court declaring a mistrial.   2) Other-crimes evidence is inadmissible to show a defendant’s propensity to commit crime.  However, “ ‘[i]t is well settled under the common law that evidence of other crimes is admissible if relevant for any other purpose than to show a defendant’s propensity to commit crimes.’ ” such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  The admissibility of evidence rests within the sound discretion of the trial court, and the court’s decision will not be disturbed absent an abuse of that discretion. 3) A Defendant convicted of multiple offenses of differing classes may be sentenced to an extended-term sentence pursuant to section 5-8-2(a) of the Unified Code of Corrections (730 ILCS 5/5-8-2(a) (West 2012)) only on those offenses within the most serious class.  An exception allowing the imposition of extended-term sentences on differing class offenses exists if the offenses arise from unrelated courses of conduct in which there was a substantial change in the nature of the defendant’s criminal objective. 4) For Krankel purposes, a pro se defendant is not required to do any more than bring his ineffective-assistance claim to the trial court’s attention so that the Court may engage in the required analysis to appoint counsel or not.   Pope, J.,   Harris, J., Concurring,  Holder White, J., Dissenting with opinion.

No. 2016 IL App (4th) 140228  People v. Palen   Filed 10-3-16 (MGB)

Defendant convicted of  Attempted Residential Burglary and Possession of Burglary Tools and concurrently sentenced to 10 and 6 years, respectively.  Trial Court declared mistrial in first trial when lead prosecutor's father died after 8 jurors were sworn. 1) We note the dissent fails to cite a single case to support its theory swearing some but not all of the jurors constitutes empanelment of a jury. In fact, every case uncovered dealing with this issue holds the opposite. While we recognize the importance of a defendant having his case tried by a particular jury, there was no “particular jury” yet chosen in this case. The dissent promotes the idea a bright line is needed. However, the bright line already exists. It occurs once the entire jury is empaneled and sworn. 2) In this case, the State presented a single prior residential burglary conviction for the limited purpose of showing knowledge and intent. The trial court specifically stated during the proceedings the prior conviction was received on the issue of defendant’s intent and knowledge and may be considered by the jury only for that limited purpose. In addition, the State’s argument was limited to telling the jury the prior conviction showed defendant’s intent to commit a theft in Morgan’s apartment. Finally, the jury was properly instructed to limit its consideration of the prior conviction to the issue of knowledge and intent.3) In this case, the State did not argue and the trial court did not find the charges arose from unrelated conduct. Indeed, the record indicates both charges originated from a single course of conduct. Thus, the trial court should not have sentenced defendant to an extended, sixyear term for the Class 4 offense of possession of burglary tools as that offense was not the most serious conviction. We vacate the sentence and remand for sentencing. 4) Pro se letter addressed to and filed by the Clerk raising issue of ineffective assistance was not presented to the Court, the State or Defense counsel, nor did the Defendant raise the issue during two personal appearances before the Court. While a pro se defendant is not required to do any more than bring his claim to the trial court’s attention, in this case defendant failed to do so. Accordingly, we find defendant has forfeited his pro se ineffective-assistance-of-counsel claim.

6.  Juvenile:   Section 710(b)(1) Prohibition of Commitment to Department of Juvenile Justice:  Affirmed, but modify Mittimus re: credit for time served:  Juvenile Offender who was originally sentenced prior to the effective date of 705 ILCS 405/5-701(b)(1), which prohibits the commitment of Juveniles to DJJ misdemeanor offenses, could be sentenced to the DJJ  Section 720(4) of the Act  provides that where the court finds the minor has violated a term of probation the court may “impose any other sentence that was available under section 710 at the time of the initial sentence.”   Pierce, J.,   Hyman, J., Dissenting with opinion.

No. 2016 IL App (4th) 140228  People v. Palen   Filed 10-3-16 (MGB)

Respondent, who was initially sentenced to Court Supervision for the what would be a misdemeanor offense of Criminal Trespass to Motor Vehicle was re-sentenced to Probation following repeated violations of the terms of his supervision. The re-sentencing occurred prior to the amendment of Section 710(b)(1) which previously allowed commitment for misdemeanor offenses, but which amendment allowed commitment only for offenses that would be felonies. Respondent violated the terms of his probation and was committed to the DJJ. Thus, in our view, the question is not what the straightforward language of amended section 710 means, but to which cases it should apply. In order to resolve this appeal, we must construe another provision of the Act. In addition to section 710, we must also consider section 720(4) of the Act, which governs probation violations. 705 ILCS 405/5–720(4) (West 2014). Section 720(4) provides that where the court finds the minor has violated a term of probation the court may “impose any other sentence that was available under section 710 at the time of the initial sentence.” 705 ILCS 405/5–720(4). Given that the amendment took effect before respondent was sentenced on his probation violation, section 4 of the Statute on Statutes would ordinarily permit him to elect to be sentenced under it. See People v. Calhoun, 377 Ill. App. 3d 662, 664 (2007) ("Where any punishment is mitigated by the provisions of a new law, defendant can consent to the application of the new provision if it became effective prior to his sentencing.") (quoting People v. Land, 178 Ill. App. 3d 251, 260 (1988)). But this does not end our inquiry, as we must consider this section in concert with section 720(4) of the Act, which requires the court, upon a finding that the minor has violated a term of probation, to impose a sentence "that was available under Section 5-710 at the time of the initial sentence." Section 720(4) is certainly more specific than section 4 of the Statute on Statutes: the former prescribes the sentence for juvenile probation revocation (405 ILCS 5/720(4) (West 2014)), while the latter generally addresses penalties and punishments for all crimes (5 ILCS 70/4 (West 2014)). Moreover, section 720(4) of the Act, with an effective date of January 1, 1999, is more recent than section 4 of the Statute on Statutes, which has an effective date of July 1, 1874. Thus, we construe section 720(4) as an exception to section 4 and conclude that pursuant to section 720(4), respondent was not entitled to be sentenced under amended section 710.