Illinois
Supreme and Appellate Court Case Summaries
By Laurence
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10 Appellate
Court
Cases
Posted 2/29/08
1. Direct
Criminal Contempt: Affirmed: Pleadings a "wild frabrication" and
contemptuous and unsupported to show disrespect and contempt of
court: Discussion of Requirements for Direct Contempt:
Filing Pleadings is direct contempt: 60 days in Jail appropriate
sentence.Theis, J.
1-06-3026 D'Agostino
v. Lynch
Filed 2/27/08 (LJD)
Defendant,
counterplaintiff, third-party plaintiff, and contemnor Michael W. Lynch
(Lynch) appeals on an interlocutory basis pursuant to Supreme Court
Rule 304(b)(5)) from the order of the circuit court of Cook County
holding him in direct criminal contempt and sentencing him to 60 days’
imprisonment. The court held Lynch in contempt after he filed a motion
for substitution of judge for cause in which he alleged that Judge
Alexander White could not be impartial to his case because Judge White
had been bribed by plaintiffs and counterdefendants Mary Carr
D’Agostino and Mario D’Agostino, and their counsel, Michael Braun, all
of whom Lynch alleged were members of an Italian mafia family. On
appeal, Lynch contends that: (1) the court improperly convicted him of
direct criminal contempt because there was no evidence that he
intentionally embarrassed, obstructed, or hindered the court in the
administration of justice; and (2) the contempt finding violates his
first amendment right to freedom of speech. For the following reasons,
we affirm.
2.
Restrictive Covenant: Affirmed: If employment contract expires,
covenant not to compete falls; Campbell, J.
1-07-1647 Bisla
v. Parvaiz
Filed 2/21/08 (LJD)
This
interlocutory appeal involves an employment dispute between physicians.
In 1998, defendant, Akhtar Parvaiz, M.D. (Dr. Parvaiz), entered into a
three-year employment agreement to work as a cardiologist in the
medical offices of plaintiff, Virendra S. Bisla, M.D., Ltd. (Dr. Bisla
or Bisla Corporation). The employment agreement contained a covenant of
employment that prohibited Dr. Parvaiz from practicing medicine within
a 10-mile radius of Bisla Corporation for 12 months after termination
of the agreement. In 2006, Dr. Bisla filed a motion for preliminary
injunction to enjoin Dr. Parvaiz from practicing medicine in the
so-called "covenanted area," and the circuit court of Cook County
denied Bisla's motion. On appeal, Dr. Bisla contends that the trial
court erred in denying the preliminary injunction after finding the
employment agreement void thereby rendering the noncompetition covenant
unenforceable. For the following reasons, we affirm the judgment of the
trial court.
3.
Forum non Conveniens: Affirmed: Defendant can not claim it is
inconvenient for plaintiff to support motion; discussion of public and
private interests. Greiman, J.
1-07-1666 Ammerman
v. Raymond Corp. Filed 2/27/08
(LJD)
4. Probate
and Post Judgement Collection/ Appellate Practice: Reversed and
Remanded: Question of Appellate Jurisdiction: Question of whether
collection action under Probate Act or Civil Practice Act: Criminal
Restitution Order should set time for restitution to be paid.
Criminal Restitution can not be collected in civil proceeding.
Victim can enforce restitution payments which are delinquent. Grometer,
J.
2-06-1225 In
re Estate of Yucis Filed 2/26/08
(LJD)
Raymond
Corporation (Raymond), one of the named defendants in plaintiff Shala
Ammerman’s products liability and negligence action, appeals from a
trial court order denying its motion to transfer the case pursuant to
the doctrine of forum non conveniens. On appeal, Raymond asserts that
the trial court’s order constitutes an abuse of discretion because the
private and public interest factors used in forum non conveniens
analysis strongly support the conclusion that the case should be tried
in Kane
County, rather than Cook County, where Ammerman filed suit. We affirm.
5.
Mandamus/Municipal Code: Affirmed: Referendum not required for
annexation of property. Callum, J.
2-07-0414 Sibenaller
v. Milschewski Filed
2/26/08 (LJD)
The United City
of Yorkville (City) passed an ordinance annexing property (the
territory) in accordance with section 7--1--8 of the Illinois Municipal
Code (Code) (65 ILCS 5/7--1--8 (West 2006)). Intervenors, North Star
Trust Company, Fox Valley Moraine, LLC, and Eric and Diane Schanze, own
property in the territory. Plaintiff, Katherine Sibenaller, and others
filed a petition (referendum petition) with the City, claiming that a
referendum on the annexation was required under section 7--1--6 of the
Code (65 ILCS 5/7--1--6 (West 2006)). Plaintiff then filed a complaint
for mandamus to order defendant, Jacquelyn Milschewski, the City clerk,
to present the referendum petition to the Kendall County clerk so that
the referendum could be held. The trial court dismissed the complaint
(see 735 ILCS 5/2--619.1 (West 2006)). Plaintiff appeals. We hold that
section 7--1--6's referendum requirement does not apply to annexations
under section 7--1--8. Therefore, we affirm.
6. Criminal
Law: Affirmed: Consent to search may take many forms; questioning
defendant during traffic stop allowed: Knecht, J.
4-02-0864 People
v. Terry
Filed 2/26/08 (LJD)
On the night of
May 20, 2002, defendant, Charles Sanford Terry, was the front-seat
passenger in a pickup truck pulled over by police. A search of
defendant at the scene led to immediate arrest and a charge for
possession of a controlled substance with intent to deliver (1 gram or
more but less than 15 grams of a substance containing cocaine. After an
August 2002 bench trial, the trial court convicted defendant of the
charge. Defendant appeals, arguing the trial court erred by
denying his
motion to suppress the evidence against him because (1) police officers
(a) exceeded the lawful scope of the traffic stop by asking him if he
had any illegal weapons or drugs and (2) defendant's assuming a typical
search position and saying "You have a job to do" did not constitute
consent to search him. We disagree with each contention and affirm.
7. Criminal
Law: Aggravated Sexual Assault and Domestic Battery: Affirmed modifying
the Sentencing: two step analysis to determine one act- one crime
doctrine or separate acts allowing for separate crimes to be
charges; Myerscough, J.
4-06-0226
People
v. Witherspoon Filed
2/26/08 (LJD)
In a fit of
jealousy, defendant, Marcelus Witherspoon, beat up his girlfriend. The
State brought charges against him. A jury convicted him of several
counts, and the trial court sentenced him to six years each on counts V
and VI (attempt (aggravated criminal sexual assault)), three years for
count VIII (aggravated domestic battery) and one year for count IX
(domestic battery with a prior domestic-battery conviction)--all
sentences to run consecutively, for a total of 16 years in prison.
Defendant appeals, arguing (1) the State failed to prove him guilty
beyond a reasonable doubt of count VI, attempt, because the evidence
failed to demonstrate that he made a second attempt to commit
aggravated criminal sexual assault with the board; and (2) the court
erred in ordering consecutive sentences. The State concedes, and we
agree, that the sentences on counts VIII and IX should be concurrent
instead of consecutive; we remand the case with directions to amend the
sentencing order accordingly. Otherwise, we affirm defendant's
convictions as modified.
8.
Contract: Reversed and Remanded w/ directions: Predominant Purpose Test
of UCC applies & shows this case to be sale of goods; partial
performance negates writing requirement of UCC; some terms may be open
& contract still enforceable; essential terms were agreed upon.
Cook, J.
4-07-0061
Jannusch v. Naffziger Filed
2/26/08 (LJD)
Plaintiffs,
Gene Jannusch and his wife, Martha, brought this action for breach of
an oral contract against defendants, Lindsey Naffziger and her mother,
Louann Naffziger. Following a bench trial, the trial court found in
favor of defendants. Plaintiffs appeal. We reverse and remand with
directions.
9.
Order/Protection: Affirmed: Domestic Violence Act includes persons
related by former marriage;: Myerscough, J., Turner,
concurs in part and dissents in part.
4-07-0079,
4-07-0080 cons. Benjamin
v. McKinnon
Filed 2/26/08 (LJD)
In separate
April 5, 2006, petitions, plaintiff, Lonna Benjamin, sought orders of
protection against defendant Terry McKinnon and defendant Jeremy
McKinnon, Terry's son. That same day, the trial court granted ex parte
emergency orders of protection against both defendants. In June 2006,
plaintiff filed amended order-of-protection petitions. After a
September 2006 hearing on the amended petitions, the court granted
plaintiff an order of protection for one year against Jeremy but denied
her one against Terry. Jeremy filed a motion to reconsider, and Terry
filed a motion for sanctions under Supreme Court Rule 137 (155 Ill. 2d
R. 137). After a January 2007 hearing, the court denied both motions.
Defendants appeal, asserting (1) the order of protection against Jeremy
should be vacated because Jeremy does not fall under the definition of
"family or household member" and (2) the trial court erred by denying
Terry's Rule 137 motion. We affirm.
10. Parole
Board: Affirmed: 1991 Electronic Home Monitor law was not prohibited as
ex post facto application to defendant who was convicted in 1975.
Turner, J.
4-07-0506
Hadley
v. Montes
Filed 2/26/08 (LJD)
In February
2007, plaintiff, Willie B. Hadley, Jr., an inmate at Lawrence
Correctional Center, filed a complaint for injunctive, declaratory, and
mandamus relief against defendants, Jorge Montes, Chairman of the
Illinois Prisoner Review Board (Board), and all members, concerning the
requirement that he submit to electronic monitoring while on
parole. In April 2007, defendants filed a motion to dismiss, which the
trial court granted. On appeal, plaintiff argues the trial court
erred in granting defendants' motion to dismiss. We affirm.
6 Appellate Court
Cases
Posted 2/27/08
1.
Civil
Procedure Law.
Opinion: Wright, J., reversed and remanded.
No. 3-07-0395, Capital
One Bank v. Czekala, filed
2/25/08. (DBS)
Plaintiff,
Capital One Bank, filed a complaint against “Joseph Czekala
DBA SEALAND FOODS” and served Joseph Czekala by substitute abode
service. The circuit court entered a default judgment against
“Joseph Czekala, Defendant.” Five years later, plaintiff issued a
wage deduction notice and order naming Joseph Czekala,
individually. Defendant filed a petition to vacate the default
judgment and dismiss the wage deduction order. The trial court
denied the petition to vacate and a subsequent motion to
reconsider. Defendant appeals from the court’s ruling denying the
petition to vacate the default judgment and the motion to reconsider
that order. Issues: (1) personal jurisdiction; and (2)
timeliness of the 2-1401 petition.
2.
Contract
Law.
Opinion: Gordon, Robert E., J., affirmed.
No. 1-07-1953, Marx
Transport v. Air Express, filed
2/25/08. (DBS)
Marx Transport,
Inc., a motor carrier, brought this action in the
circuit court of Cook County seeking to recover freight charges
relating to over-the-road shipments of goods picked up from a facility
owned by Corning, Inc., located in Harrodsburg, Kentucky, and shipped
to two airports for overseas delivery between January 30, 2003, and May
8, 2003. North American Expediting, Inc., contacted Marx to
transport the goods to the airports, and Air Express International
Corporation, d/b/a Danzas AEI, was hired by Corning to coordinate the
movement of the overseas shipments. Danzas contacted North
American to handle the over-the-road shipments from the Corning
facility to two domestic airports. After a bench trial, the trial
court found in favor of Corning and Danzas and against Marx.
Marx appeals. Issue: whether the findings and
decisions of the trial court were against the manifest weight of the
evidence.
3.
Medical
Malpractice Law.
Opinion: Garcia, J., affirmed.
No. 1-07-0294, Wilkerson
v. The County of Cook, filed
2/25/08. (DBS)
In this medical
malpractice case, the plaintiff, Jacqueline Wilkerson,
successor special administrator of the estate of Beverly Newsome,
deceased, appeals from an order granting summary judgment in favor of
the defendants, County of Cook, d/b/a Cook County Hospital, Jaya Ahuja,
M.D., and Henry Ching. Issues: (1) whether a question of
fact exists as to whether the defendants were negligent in their
treatment of the decedent; and (2) whether Dr. Ahuja's contradictory
testimony created a credibility issue, appropriately resolved only by
the trier of fact.
4.
Criminal
Law.
Opinion: McBride, J., reversed and remanded.
No.1-06-1338, People
v. Bumpers,
filed 2/22/08. (DBS)
In November
2000, defendant Whurry Bumpers pled guilty to the June 1997
first-degree murder of Charlene Williams. Pursuant to an
agreement, the trial court sentenced defendant to a term of 45 years in
the Illinois Department of Corrections. In November 2004,
defendant mailed his pro se postconviction petition to the trial
court. In his petition, defendant alleged that he was denied his
right to due process because the trial court failed to admonish him
that he would have to serve a 3-year period of mandatory supervised
release in addition to his 45- year sentence. The State filed a
motion to dismiss defendant’s pro se postconviction petition as
untimely. Following a hearing, the trial court granted the
State’s motion. Issues: (1) whether the trial court erred
in dismissing defendant's postconviction petition because he made a
substantial showing that he was denied his right to due process when he
was not admonished about the 3-year term of MSR and he was not culpably
negligent in filing his petition a year late; and (2) whether defendant
received unreasonable assistance of postconviction counsel due to his
counsel’s failure to amend the postconviction petition to include a
claim that the delay in filing was not a result of defendant’s culpable
negligence.
5.
Criminal
Law.
Opinion: McBride, J., affirmed.
No. 1-06-0271, People
v. Gonzalez,
filed 2/22/08. (DBS)
Following a
jury trial, defendant, Jose Luis Gonzalez, was found guilty
of first degree murder and sentenced to a term of natural life in
prison. Issues: (1) whether the trial court erred by
admitting other crimes evidence; and (2) whether the trial court erred
by admitting hearsay testimony.
6.
Criminal
Law.
Opinion: Wolfson, J., affirmed.
No. 1-06-0450, People
v. Clay,
filed 2/19/08. (DBS)
Nearly
thirty-three years have passed since the murders of a doctor and
two of his patients, committed in the course of a kidnapping.
Defendant Roosevelt Clay has twice been tried for and convicted of
these murders. Issue: whether defendant should recieve a
third trial based on the weight of the evidence.
5 Appellate Court
Cases
Posted 2/22/08
1. Criminal
Law: Affirmed: Ineffective assistance
of counsel; sentencing proper as it was within the statutory guidelines
and was presumptively correct, and (2) because defendant had three
prior convictions for possession of a controlled substance, there was
no abuse of discretion and no need to remand this case for
re-sentencing. Neville, J.
1-05-3888
People
v. Grimes
Filed 2/14/08 (RJC)
Defendant,
Terah Grimes, was charged in a complaint with criminal drug
conspiracy and delivery of a controlled substance within 1,000 feet of
a school or church. 720 ILCS 570/407(b)(1). After a bench trial, the
defendant was convicted of criminal drug conspiracy and multiple counts
of the lesser-included offense of delivery of a controlled substance
and sentenced to 13 years in the penitentiary. Grimes appeals his
conviction and contends: (1) that his trial counsel provided
ineffective assistance; (2) that his sentence should be vacated because
the trial court relied on improper factors in sentencing him; and
(3) that the mittimus must be corrected to accurately reflect
defendant's sentencing credit and his actual conviction of a Class 1
offense, as opposed to a Class X felony. We affirm defendant's
conviction and sentence.
2.
Insurance law: Affirmed: Subrogation: Where
Insurance company's contract provision with its insured conflicts with
Minnesota’s No-Fault Automobile Insurance Act (Minn. Stat. Ann. §65B.41
et seq. (West 2005)) and is therefore unenforceable, insurance company
is not a bona fide subrogee as required by section 2-403(a) of the
Code. Therefore, insurance company cannot prosecute this subrogation
action, and the trial court’s order dismissing this case with prejudice
was proper. Neville, J.
1-06-1999 Progressive
Insurance Company v. Fredrick Williams Filed 2/14/08 (RJC)
The plaintiff,
Progressive Insurance Company (Progressive), as subrogee
of Mervin Thomas (Thomas), filed a complaint against the defendant,
Fredrick Williams, alleging that Williams’ negligent operation of a
motor vehicle caused injuries to Thomas on March 5, 2004. The
defendant filed a motion to dismiss pursuant to section 2-619 of
the Code of Civil Procedure (Code) and alleged, among other
things, that Progressive was not a bona fide subrogee. 735 ILCS
5/2-619(a)(9). The trial court granted the defendant’s motion and
dismissed the plaintiff’s complaint with prejudice. Progressive
presents two issues for review: (1) whether the defendant has standing
to challenge plaintiff's contractual right to seek subrogation
where he has no legally cognizable interest in the insurance contract
between Progressive and Thomas; and (2) whether plaintiff's subrogation
action is barred by a provision in Minnesota No-Fault Automobile
Insurance Act (Minnesota 1-06-1999 1 Section 2-606 provides "[i]f
a claim or defense is founded upon a written instrument, a copy
thereof, or of so much of same as is relevant, must be attached to the
pleading as an exhibit or recited therein." 735 ILCS 5/2-606 (West
2006). For the reasons stated herein, the trial court’s July 13,
2006, order is affirmed.
3. Real
Estate Landlord/tenant: Affirmed in part/reversed in
part: Trial court properly granted defendant’s 2-615 motion to dismiss
when it found that the count in substance is not a claim for relief,
regardless of its merits; awarding of Attorney fees awarded
pursuant to City of Chicago RLTO. Gordon, Robt., J.
1-06-2066 Willis
v. Naico Real Estate Property and Management Corporation Filed
2/19/08 (RJC)
Following a
jury trial in this tenant-landlord dispute, judgment was
entered in favor of the tenant plaintiff Larissa Willis in the amount
of $3,395 for the return of her security deposit and annual interest on
it under the Residential Landlord Tenant Ordinance of the City of
Chicago (RLTO). In addition, judgment was entered in favor of the
defendant landlord, Naico Real Estate Property and Management
Corporation, in the amount of $788 based on its counterclaim for one
month's rent. Thereafter, the court awarded $4,332.20 in attorney fees
to plaintiff and $3,582.75 in attorney fees to defendant. On
appeal,
plaintiff challenges the award of attorney fees to defendant by raising
two issues: (1) whether the trial court properly dismissed with
prejudice count IX, which alleged that a certain lease provision
regarding attorney fees for the landlord was not enforceable; and (2)
whether the trial court properly allowed defendant to recover attorney
fees. We affirm in part and reverse in part.
4. Criminal
Law: Remanded to trial court for re-sentencing:
The trial court erroneously subjected defendant to double
enhancement by using his previous Class 2 felony convictions to elevate
the seriousness of the charged offenses in the case at bar, unlawful
use of a weapon by a felon, to Class 2 felonies and then used the same
prior convictions to sentence defendant as a Class X felon.
Quinn, J.
1-06-2954 People
v. Chaney
Filed 2/20/08 (RJC)
Defendant
Dwayne Chaney was charged in a six-count indictment with two
counts of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1
and four counts of aggravated unlawful use of a weapon (720 ILCS
5/24-1.6. Due to his prior criminal history, the charges against
him constituted Class 2 felonies. Following a bench trial,
defendant was convicted on two counts of unlawful use of a weapon by a
felon and two counts of aggravated unlawful use of a weapon,
which were merged with the first two counts. At sentencing, the
court noted defendant's prior criminal history, and thereafter
sentenced him as a Class X offender to two concurrent terms of
seven years' imprisonment. On appeal, defendant contends that he
was subjected to improper double enhancement of his sentences where the
same prior conviction was used to first elevate the seriousness of the
charged offenses and later used to increase the classification of his
sentence. We agree. We vacate the sentencing order and remand this case
for re-sentencing.
5. Criminal
Law: Affirmed with 1 count and fine
vacated: Court's acceptance of a stipulation, over the
fefendant's objection, concerning defendant's prior conviction proper;
merger of similar counts; and, erroneous assessment of $20 Violent
Crime Victims Assistance Fund fine. Grieman, J.
1-07-0335 People
v. Lee Filed 2/20/08 (RJC)
Following a
jury trial, defendant, Andy Lee, was convicted of two
counts of unlawful use of a weapon by a felon and sentenced to
concurrent terms of 12 years’ imprisonment for each count. On appeal,
defendant contends that: (1) the trial court erred in admitting
evidence of his prior felony conviction after he refused to stipulate
to that conviction; (2) his multiple convictions for unlawful use of a
weapon by a felon should be merged based upon the law applicable at the
time of his offense; (3) his sentence was excessive in light of
mitigating factors; and (4) the trial court erroneously assessed him
the Violent Crime Victims Assistance Fund fine.
3 Supreme
Court
Cases
Posted 2/22/08
1. Tort
Law: Appellate Court Affirmed in part and Reversed in
part but Cause Remanded with directions: In contact sports, cause
of action does not exist for negligence or willful and wanton
conduct; a cause of action exists only if the conduct is totally outside the range
of conduct for the sport Burke, J.
104123,
104133 cons. Karas
v. Stevell
Filed 2/22/08 (LJD)
In 2004, the minor
plaintiff in this Du Page County lawsuit was injured in a hockey game
between the junior varsity teams of Barrington High School and the
Naperville Central Redhawks. It was alleged that plaintiff was struck
by two Redhawk players from behind so that his head hit the board wall
of the rink. These two opponents were made defendants in the resulting
suit, as was their team, the league, and the officials’ association.
Rules violations were alleged.
In this decision, the
Illinois Supreme Court amplified on its 1995 decision in Pfister v.
Shusta, which had dealt with contact sports. Because of the nature
of ice hockey as a full contact sport, the supreme court said that
recovery cannot be based only on rule violations, negligence, or even
willful and wanton conduct. The standard is whether the plaintiff has
alleged facts showing conduct totally outside the range of the ordinary
activity associated with this sport. Pursuant to this standard, the
negligence counts of the complaint were held to have been properly
dismissed by the circuit court.
The standard of care
adopted today, while necessitated by the underlying rationale of Pfister,
was not explicitly set forth in that decision. Therefore, as to the
counts alleging willful and wanton conduct, and also as to a count
alleging civil conspiracy between the league and the officials’
association, the plaintiff should be allowed to replead his claims to
attempt to allege facts meeting this standard, if he is able to do so.
The cause was remanded to the circuit court for this purpose.
2. Real
Estate Taxation: Appellate Court Affirmed Reversing
Circuit Court: Taxing Bodies may intervene in suit seeking refund if
the situation warrants it. Karmeier, J., Kilbride, J. dissents
104321, 104322
104333 cons Madison
Two Associates v. Pappas Filed 2/22/08
(LJD)
Real estate tax assessments for the
year 2001 are at issue in this consolidated litigation involving major
commercial properties in downtown Chicago. Originally, the assessments
were challenged before the Cook County board of review. After that body
rendered its decision, tax objection proceedings were filed in circuit
court by dissatisfied taxpayers. Under this procedure, the tax must be
paid, and then a complaint is filed seeking a refund. The Cook County
collector was named as the party opponent and was defended by the
State’s Attorney. Eventually, 30 cases were consolidated. The City of
Chicago and the Chicago Board of Education sought leave to intervene as
defendants in order to oppose the attempts to reduce the assessments.
The circuit court held that, as a matter of law, such taxing districts
are never permitted to intervene in tax objection proceedings.
The appellate court reversed,
holding that such intervention is permitted under section 2–408 of the
Code of Civil Procedure. There, specific requirements are set forth for
when to allow intervention. Because the circuit court held intervention
legally impermissible, it never evaluated whether, under the statutory
standard, this situation allowed it. The cause was remanded so that it
could do so.
In this decision, the Illinois
Supreme Court agreed with the appellate court and affirmed it, noting
that this result is not incompatible with the constitutional and
statutory authority of the State’s Attorney to defend the assessments
on behalf of the county collector.
3.
Appellate Practice: Case Remanded to Appellate Court
for Decision on Jurisdiction to hear Appeal: Issue of
whether Notice of Appeal sought relief from Circuit Court Order
being appealed. Freeman, J.
104468 People
v. Smith
Filed 2/22/08 (LJD)
This Champaign
County defendant pled guilty in 2004 to possession of
cocaine with intent to deliver. Over a year after this judgment, and
after affirmance on appeal, he filed a pro se motion for
sentence correction, challenging the constitutionality of the mandatory
supervised release portion of his sentence. This motion was denied as
frivolous, and after it was, the circuit court informed the warden of
the institution where Smith was confined that, pursuant to statute, his
good-conduct credit should be reduced because of his latest
unsuccessful legal maneuver.
Smith filed a notice of appeal. In his
brief in the appellate court, he contested reduction of his
good-conduct credit, but his notice of appeal had referred only to the
original judgment. The appellate court affirmed the results reached
below, and the defendant appealed to the Illinois Supreme Court.
Rather than reach the merits, the
supreme court found a defect in the appellate court’s jurisdiction.
Smith’s notice of appeal to that court specified what was being
appealed from as the underlying judgment, rather than the circuit
court’s action on the motion to correct sentence. The
cause was remanded to the appellate court so that it could give
consideration to the issue of its jurisdiction.
8 Appellate
Court
Cases
Posted 2/20/08
1. Traffic
Law: Affirmed ( 12/19/07 Opinion withdrawn): Rescission of suspension
is not void ab inition so arrest and conviction for agg. driving under
influence. Summary suspension is voidable, not void so suspension
was in effect on date of arrest. Theis, J.
No. 1-06-0868
People
v. Ciechanowski Filed
2/13/08.
(LJD)
Following a bench trial, defendant, Wlodzimierz Ciechanowski, was found
guilty of aggravated driving while under the influence of alcohol (DUI)
based on driving under the influence during a period in which his
driving privileges had been suspended for refusing to submit to a
sobriety test after a prior arrest for suspected DUI. Defendant
was subsequently sentenced to 10 days of imprisonment in the Cook
County Department of Corrections and 30 months of probation, and was
ordered to pay a total of $2,950 in fines and costs. On appeal,
defendant contends that: (1) he could not have been convicted of
aggravated DUI as a matter of law because the suspension for the prior
DUI arrest was rescinded, which rendered that suspension void ab
initio; and (2) the State failed to prove him guilty of
aggravated DUI beyond a reasonable doubt. For the following reasons, we
affirm.
2. Domestic
Battery: Affirmed (1/7/08 Opinion Withdrawn): Hearsay and
"excited utterance" exception to hearsay rule discussed. O'Malley,
J.
2-06-0485 People
v. Robinson
Filed 2/13/08.
(LJD)
Following a bench trial in the circuit court of Kane County, defendant,
Charles E. Robinson, was found guilty of domestic battery (720 ILCS
5/12--3.2(a)(2) (West 2004)) and sentenced to a two-year term of
conditional discharge. He argues on appeal that his conviction was
based on improperly admitted hearsay and that the State failed to prove
his guilt beyond a reasonable doubt. We affirm.
Filed 2/13/08.
(LJD)
3. Post
Conviction Petition: Affirmed: Sua sponte dismissal of petition
without response is permissible: Steigman, J.
4-04-0846
People
v. Laugharn
Filed 2/15/08.
(LJD)
In August 2004,
defendant, Mildred L. Laugharn, filed a petition under section 2-1401
of the Code of Civil Procedure, seeking to set aside her November 1996
first-degree-murder conviction. In September 2004, the trial
court sua sponte dismissed defendant's petition as untimely
filed. We affirmed and the Supreme Court vacated the affirmance
and ordered we reconsider the appeal based on Peo.
v. Vincent. After
reconsidering our earlier judgment in light of Vincent to determine
whether a different result is warranted, we again conclude that the
trial court correctly ruled against defendant sua sponte,
dismissing her petition with prejudice.
4. Criminal
Law: Reversed and Remanded: Suppression of second inculpatory statement
not required after Miranda warnings
even though defendant made first inculpatory statement before Miranda Warnings. So called
question first, warn later technique. Turner, J.
4-05-0692 People
v. Loewenstein Filed
2/15/08.
(LJD)
In February
2005, the State charged defendant, Jeremy L. Loewenstein, with single
counts of aggravated discharge of a firearm and unlawful possession of
a weapon by a felon. In July 2005, defendant filed a motion to suppress
statements, which the trial court granted in part and denied in part.
On appeal, the State argues the trial court erred in suppressing
certain statements made by defendant to the police. We reverse and
remand for further proceedings.
5. Criminal
Law: Reversed and Remanded: Anhydrous Ammonia is not poison gas under
statute and Doctrine of noscitur
a sociis. (A word is known by the company it keeps)
Sentences are reviewed under an abuse of discretion standard: sentence
not conforming to statutory standard is void and may be reviewed
at any time.consecutive vs. concurrent sentences discussed.
disbursement of bond money both forfeited and unforfeited.
Knecht, J.
4-07-0032,
4-07-0033,4-07-0034 People
v. Davison Filed
2/15/08.
(LJD)
Defendant, Troy
A. Davison, in these consolidated appeals, first appeals from his
conviction for possession of a deadly substance, arguing (1) the
evidence was not sufficient to prove guilt beyond a reasonable
doubt because anhydrous ammonia is not a "poisonous gas" within the
meaning of the statute defining the offense, (2) the sentences he
received for possession of a deadly substance, unlawful possession of a
stolen motor vehicle and unlawful manufacture of a controlled
substance were excessive; and (3) the trial court's order directing the
balance of his posted bond money, after restitution, court fees, and
public-defender reimbursement in each case be split equally between the
Clark County Sheriff's office and the Southeast Illinois Drug Task
Force. For the following reasons, we reverse defendant's conviction for
possession of a deadly substance; reverse defendant's conviction
and sentence for unlawful possession of a stolen vehicle and remand
with directions; and affirm defendant's conviction of unlawful
manufacture of a controlled substance but reverse his sentence therein
and remand with directions.
6. Criminal
Law: Affirmed: Motion to suppress statements as custodial without Miranda: elements of whether
defendant was in custody. McCullough. J.
4-06-0927
People
v. Croom
Filed 2/15/08.
(LJD)
A jury found
defendant, Dwayne T. Croom, guilty of first degree murder and the trial
court sentenced him to 50 years in prison. Defendant appeals, arguing
the court erred by denying his motion to suppress statements he made to
law-enforcement officers that he alleges were made during a custodial
interrogation and without the benefit of Miranda warnings (see Miranda
v. Arizona, 384 U.S.436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)). We
affirm.
7. Juvenile
Court: Abuse & Neglect: Jurisdiction to hear appeal; what
constitutes "good cause" Myerscough, J.
4-06-0998
In
re: Z.L., a Minor Filed
2/15/08.
(LJD)
In July 2006,
the Ford County State's Attorney filed a petition for the
adjudication of wardship of respondents Jeff L. and Emily L.'s minor
child, Z.L. (born April 20, 1999). The trial court denied the petition
for failure to show "good cause" to alleviate respondents from their
parental responsibilities as required by section 2-4(d) of the Juvenile
Court Act of 1987 (Act) (705 ILCS 405/2-4(d) (West 2006)). Respondents
appeal, arguing they proved good cause. We agree with respondents and
reverse and remand.
8. Juvenile
Court: Affirmed: Federal Indian Child Welfare Act and its applacibility
to an abuse and neglect disposition under Illinois Law.
Myerscough, J.
4-07-0785 In
re: T.A., Ta.A., and J.A., Minors Filed
2/15/08.
(LJD)
In August 2007,
the trial court entered a dispositional order finding J.A., born
January 26, 2007, neglected. The court granted custody and guardianship
of J.A. to the guardianship administrator of the Illinois Department of
Children and Family Services (DCFS). J.A.'s father, respondent Michael
Amos, appeals, arguing the matter should be remanded for a
determination of whether J.A. is an Indian child under the Indian Child
Welfare Act of 1978 (Act) (25 U.S.C. §§1901 through 1923(2000)).
We disagree and affirm.
12 Appellate
Court
Cases
Posted 2/19/08
1.
Traffic Law: Affirmed: Admission of test results not error
despite doctor's failure to comply with and administrative regulation
as regulation exceeded the issuing department's authority. Gordon,
Robt., J.
1-06-2656 People
v. Bair Filed 2/02/08.
(RJC)
After a bench trial on March 28, 2006, defendant Maren Bair was
convicted of driving under the influence of alcohol (DUI) and sentenced
on September 7, 2006 to 12 months’ supervision. Defendant appeals on
the ground that the doctor failed to disinfect her skin prior to
drawing a blood sample, as then required by the Illinois Administrative
Code (20 Ill. Admin. Code §1286.320(c)(2004). For the reasons discussed
below, we affirm.
2. Criminal
Law: Modified (11/26/07) on Denial of
Rehearing/Affirmed: Jury instructions concerning lesser included
offense (2d degree Murder); Batson issues and barring testimony
of witness. Gordon, Robt., J
1-06-2667 People
v. Sipp Filed 2/02/08.
(RJC)
Following a jury trial in the circuit court of Cook County, defendant
James Sipp was convicted of the first-degree murder of Demetrick Wright
and sentenced to 45 years in the Illinois Department of Corrections.
Defendant’s post trial motion for a new trial was denied. On appeal,
defendant argues that the trial court erred by (1) denying defendant’s
requests for an involuntary manslaughter instruction and (2) for a
second degree murder instruction, (3) denying defendant’s Batson
motion, (4) refusing to permit defendant’s sister to testify at trial,
and (5) sustaining certain objections made by the State with no
articulated basis for those objections. We affirm.
3.
Insurance Law: Affirmed: Insurance company's duty to
defend; summary judgment. Gordon, Robt., J.
1-06-0760 Greenwich
Insurance Company v. RPS Products, Inc. Filed 2/02/08. (RJC)
The issue presented in this case is whether plaintiff Greenwich
Insurance Company (Greenwich) had a duty to defend its insured,
defendant RPS Products, Inc.(RPS), in an underlying suit filed by The
Holmes Group, Inc. (Holmes), alleging, among other things, patent
infringement, trademark infringement, and unfair competition. RPS
tendered its defense of the Holmes suit to Greenwich, which refused the
tender of the defense and denied coverage. Greenwich filed a
complaint for declaratory judgment in the seeking, among other things,
a declaration that it had no duty to defend RPS in the Holmes suit. The
trial court granted Greenwich’s motion for summary judgment finding
that the Holmes suit was not covered under the Greenwich insurance
policy, and therefore had no duty to defend.
4.
Insurance Law: Affirmed: Breach of Duty;
Breach of Contract; Judgment N.O.V. Garcia, J.
1-05-0783
Industrial
Enclosure Corporation v. Glenview Insurance Agency Filed 2/11/08.
(RJC)
The plaintiff, Industrial Enclosure Corporation (IEC), was awarded
$567,172 in damages after a jury trial. The defendant, Glenview
Insurance Agency, Inc. (Glenview), filed a motion for judgment
notwithstanding the verdict contending that the court erred in denying
its motion for a directed verdict based on the absence of any evidence
that (1) Glenview proximately caused the damages suffered by IEC under
its negligence claim, and (2) Glenview breached its duty to IEC in the
procurement of the property insurance under its breach of contract
claim. The court granted the motion for judgment notwithstanding
the verdict as to each ground. The court also explained that the jury
was improperly instructed as to the duty owed by Glenview to IEC.
The plaintiff appeals that order, contending sufficient
evidence was presented at trial to support its claims of breach of
contract and negligence. We affirm.
5.
Negligence Law: Reversed and Remanded: Whether
Summary Judgment was proper; Issue of retained control of an
independent contractor's work so as to trigger liability under section
414 of the Restatement of Torts. Cahill, J.
No.
1-06-2653 Wilkerson
v. Paul H. Schwendener, Inc. Filed
2/11/08 (RJC)
Plaintiff John
Wilkerson appeals a trial court order granting summary
judgment to defendant Paul H. Schwendener, Inc., on his complaint to
recover from a construction site injury. Plaintiff maintains
genuine
issues of material fact exist with regard to whether: (1) defendant
retained enough control over plaintiff's work to trigger a duty under
section 414 of the Restatement (Second) of Torts (Restatement (Second)
of Torts §414 (1965)); and (2) defendant knew of the dangerous
condition that caused plaintiff's injury, triggering liability under
section 343 of the Restatement (Second) of Torts (Restatement (Second)
of Torts §343 (1965)). We reverse and remand for further proceedings.
6. Pension
Law: Affirmed: Administrative review of the
Retirement Board application of section 5-128 of the Pension Code in
calculating plaintiff's retirement annuity. Garcia, J.
1-07-0483 Thompson
v. The Retirement Board of the Policemen's Annunity and Benefit Fund of
the City of Chicago Filed
2/11/08.
(RJC)
The plaintiff in this case, Graham Thompson, filed a petition for
administrative review, seeking review of an annuity determination by
the Retirement Board of the Policemen's Annuity and Benefit Fund of the
City of Chicago (Retirement Board). Thompson alleges the
Retirement Board erred by denying him benefits pursuant to section
5-129.1(a) of the Illinois Pension Code (Pension Code) (40 ILCS
5/5-129.1(a) (West 2006)) and said denial resulted in Thompson's
benefits being diminished and impaired. The trial court denied
Thompson's petition for review, finding the Retirement Board did
not apply section 5-129.1(a) because that section was not applicable to
Thompson and, thus, no diminishment or impairment occurred. We affirm.
7. Post
Conviction: Affirmed:void v. voidable judgment; jurisdiction
based on information which contained some dates where statute was not
effective and some dates where statute was in effect; voidable
judgement must be objected to in a timely manner. Bryne, J.
No. 2-06-0287
People
v. Mescall
Filed 2/11/08.
(LJD)
Defendant
contends that his judgment of conviction of predatory criminal sexual
assault of a child was void and that he may challenge the judgment
after the limitations period pursuant to section 2--1401(c), because
the judgment was based on a defective charging instrument. Defendant
alleges that the information was defective because some of the conduct
complained of was alleged to have occurred before the effective date of
the predatory-criminal-sexual-assault-of-a-child statute. We disagree
and affirm the trial court.
8. Post
Conviction Petition: Affirmed: void judgements; frivolous
petition; substitution of judge motion filed with post conviction
petition Theis, J.
No.1-06-1930
People
v. Harvey
Filed 2/13/08.
(LJD)
Defendant Steve
Harvey appeals from an order of the circuit court granting the State’s
motion to dismiss his petition for relief from judgment filed pursuant
to section 2- 1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2004)). In it, defendant asserted that the dismissal of his
postconviction petition filed in 1996 under the Postconviction Hearing
Act (the Act) (725 ILCS 5/122-1 et seq. (West 1994)) was a void
judgment because the court did not properly dispose of his
contemporaneous motion for substitution of judge, in contravention of
section 114-5(d) of the Code of Criminal Procedure.
9.
Uninsured Motorist Insurance: Affirmed: clause excluding coverage for
motor vehicles owned by insureds but not covered under policy.
Other insurance clause does not apply if no insurance under policy.
O'Malley, J.
No.
2-06-1238 Farmers
Automobile Insurance Association Filed
2/13/08.
(LJD)
Plaintiff,
Farmers Automobile Insurance Association, sued defendants, Robert
Rowland and Margaret Rowland, seeking a declaration that it did not owe
them uninsured motorist (UM) coverage under an automobile insurance
policy it issued. The trial court granted plaintiff judgment on the
pleadings, holding that the policy unambiguously precluded UM coverage
for a motorcycle that was not insured under the policy. Defendants
appeal, contending that the trial court should have found that the
policy was ambiguous and, accordingly, construed it in favor of
coverage. We affirm.
10.
Statutory Summary Suspension: Reversed and Remanded: failure to stop at
stop line is violation of stop sign statute and grounds for a stop by
police officer. Gilleran Johnson, J.
No. 2-07-0270
People
v. Wood
Filed 2/13/08.
(LJD)
Following a
traffic stop, the defendant, Travis J. Wood, was charged by complaint
in the circuit court of De Kalb County with driving under the influence
of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2006)). He was also
notified of the statutory summary suspension of his driving privileges.
The defendant petitioned for the rescission of the suspension and moved
to quash his arrest and suppress evidence. Concluding that the traffic
stop was invalid, the trial court rescinded the suspension and granted
the defendant's motion to quash and suppress. The State appeals. We
reverse and remand.
11.
Insurance Law: Affirmed in Part and Reversed in Part: 2-615 Motion to
Dismiss: misappropriation of funds by fiduciary not precludes under
insurance code; Murphy, J.
No.1-06-3300 Dod
Technologies v. Mesierow Insurance Services, Inc. Filed
2/14/08.
(LJD)
Plaintiff, DOD
Technologies, brought a five-count putative class-action complaint
against defendant, Mesirow Insurance Services, Inc., plaintiff’s
insurance broker, alleging that defendant received contingent
commissions from insurers without informing plaintiff. The trial court
granted defendant’s motion to dismiss pursuant to section 2-615 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004)) on the
basis that (1) section 2-2201 of the Code (735 ILCS 5/2-2201 (West
2004)) precludes claims for breach of fiduciary duty and (2) plaintiff
failed to allege actual damages or reliance on the alleged concealment.
12.
Criminal Law: Affirmed: Harassment of witness elements; sufficiency of
evidence. Callum, J.
No.2-06-0117
People v. Cardamone Filed
2/14/08.
(LJD)
Following a
bench trial, defendant, Michael P. Cardamone, was convicted of
harassment of a witness (720 ILCS 5/32--4a(a) (West 2000)). The trial
court denied defendant's motion for a new trial and sentenced him to
three years' imprisonment. The court subsequently denied
defendant's motion to reconsider his sentence. Defendant appeals,
challenging the sufficiency of the evidence for his conviction. We
affirm.
I
13 Appellate
Court
Cases
Posted 2/11/08
1.
Property Tax Law.
Opinion: Appleton, J., reversed.
No. 4-07-0199, Faith
Builders Church v. The Department of Revenue, filed
2/7/08.
(DBS)
In this action
for administrative review, the circuit court reversed
the decision of defendant, the Illinois Department of Revenue, to deny
an exemption from property taxes for Heartland Childcare Center and
Heartland Preschool. The Department appeals. Issues:
(1) whether the Department could reasonably find that, in
practical reality, the primary use of the child-care center and
preschool was as a day care and that the religious purposes of
evangelism and theological instruction were secondary, and (2) whether
the Department could also reasonably find that the child-care center
and preschool were not exempt as "schools" because neither of them
offered an established, commonly accepted program of academic
instruction.
2.
Criminal Law.
Opinion: Steigmann, J., affirmed.
No. 4-04-0836, People
v. Ryburn,
filed 2/7/08. (DBS)
In July 2004,
defendant, Thomas V. Ryburn, filed a petition under
section 2-1401 of the Code of Civil Procedure, seeking to set aside his
multiple October 1999 guilty pleas. In August 2004, the trial
court sua sponte dismissed defendant's petition as frivolous and
without merit. Defendant appealed, arguing, in part, that the
trial court's sua sponte dismissal of his section 2-1401 petition was
error. Specifically, defendant argued that the trial court did
not have the authority to take that action. This court disagreed
and affirmed with one judge dissenting. On September 26, 2007,
the Supreme Court of Illinois denied defendant's petition for leave to
appeal but directed this court to vacate our judgment and to reconsider
in light of People v. Vincent. Issue: whether in light of
Vincent a different result is warranted.
3.
Criminal Law.
Opinion: Wright, J., reversed and remanded.
No. 3-06-0179, People
v. Newborn,
filed 2/5/08. (DBS)
Defendant was
charged with armed robbery as a juvenile. However,
after a hearing under section 5–805(3) of the Juvenile Court Act of
1987, jurisdiction was transferred to adult court where the State
charged defendant with armed robbery under the Criminal Code of
1961. A jury found defendant guilty. The court sentenced
defendant to16 years in prison and denied his motion to reconsider
sentence. This appeal followed. Issues: (1) whether
the State failed to prove him guilty beyond a reasonable doubt; (2)
whether the circuit court erred in refusing to allow impeachment of a
witness with the witness’s juvenile felony adjudications; and (3)
whether the court erred by allowing the State to introduce evidence
regarding a shotgun found during the police investigation.
4.
Civil Procedure Law.
Opinion: Byrne, J., appeal dismissed.
No. 2-07-0130, First
Bank v. Phillips, filed
2/8/07. (DBS)
Defendants and
counterplaintiffs, Mercedes and Mervyn C. Phillips, Jr.,
appeal pro se from a judgment granting the various counterdefendants,
including plaintiff First Bank, as successor by merger to CIB Bank,
summary judgment on defendants' counterclaim. Issue:
whether defendants filed a timely notice of appeal in the trial court.
5.
Criminal Law.
Opinion: Zenoff, J., affirmed.
No. 2-06-0378, People
v. Murray,
filed 2/6/08. (DBS)
Jerome A.
Murray appeals his conviction of and sentence for possession
of a controlled substance with intent to deliver. Issues:
(1) whether defendant was denied his statutory right to a speedy trial;
and (2) ineffective assistance of counsel.
6.
Criminal Law.
Opinion: O'Malley, J., reversed and remanded for cause.
No. 2-07-0220, People
v. Pieper,
filed 2/6/08. (DBS)
The State
appeals from an order granting the motion in limine of
defendant, Corey A. Pieper, to exclude the result of a blood alcohol
content test administered to him after the Mt. Carroll police arrested
him for driving under the influence. Issues: (1) whether
reporting of a zero-tolerance violation is relevant to whether BAC
testing has been done pursuant to section 11--501.1(a) or section
11--501.8(a); and (2) whether section 11--501.8(f) works to exclude BAC
results only when testing is done exclusively pursuant to section
11--501.8(a).
7.
Disability Law.
Opinion: Gallagher, J., affirmed.
No. 1-06-2069, Sarkis
v. The City of Des Plaines, filed
2/8/08. (DBS)
This case
involves the administrative review of the decision of the Des
Plaines Police Pension Board to deny plaintiff George Sarkis a
line-of-duty disability pension after Sarkis injured his shoulder while
lifting a malfunctioning railroad crossing gate. Issue:
whether Sarkis’s act involved a special risk “not ordinarily assumed by
a citizen in the ordinary walks of life,” which entitles him to a
line-of-duty disability pension under section 3- 114.1 of the Pension
Code.
8.
Criminal Law.
Opinion: Gallagher, J., affirmed.
No. 1-06-0302, People
v. Balle,
filed 2/8/08. (DBS)
On October 3,
2005, defendant filed a second postconviction
petition. The circuit court dismissed defendant's petition,
concluding that defendant's second postconviction petition failed to
satisfy the cause-and-prejudice test. Issues: (1)
ineffective assistance of counsel; (2) whether in violation of Brady v.
Maryland, the
State failed to turn over defendant's mental health records from the
Cook County jail; and (3) whether defendant's natural life sentence is
void
because he was not eligible to be sentenced pursuant to the Habitual
Criminal Act.
9.
Tort Law. Opinion:
O'Brien, J., affirmed.
No. 1-06-2339, Bender
v. Eiring,
filed 2/7/08. (DBS)
Plaintiff, the
special administrator of the estate of Lawana D. Barton,
a/k/a Tawana Barton , brought a negligence action against the
defendants on behalf of certain of the decedent's next of kin for
wrongful death, survival, and loss of society. The circuit court
entered summary judgment in favor of the defendants on the decedent's
parents' claims for loss of society, based on the court's conclusion
that the parents could not be considered next of kin under the Wrongful
Death Act because they had signed disclaimers in the probate court
relinquishing any interest in the assets of the deceased's
estate. Issue: whether the trial court erred in finding
that the disclaimers barred the parents' claims for loss of society
damages.
10.
Tort Law.
Opinion: Murphy, J., affirmed.
No. 1-07-0560, Bono
v. Chicago Transit Authority, filed
2/7/08. (DBS)
Petitioner,
Robert M. Bono, was discharged from his position as a
supervisor with respondent, Chicago Transit Authority, for misconduct
regarding improper personal use of the telephone for a call he made to
a customer while working. Petitioner requested a “for cause”
hearing before respondent Chicago Transit Board pursuant to section 28
of the Metropolitan Transit Authority Act. Following a full
hearing on the matter, respondent chairperson of the Board, Carole L.
Brown, issued an ordinance dated February 15, 2006, upholding the
termination. The trial court upheld the decision of the
Board on January 25, 2007. Issue: (1) subject matter
jurisdiction ; (2) whether the Board's decision was against the
manifest weight of the evidence; and (3) was the Board’s decision to
discharge petitioner arbitrary and unreasonable.
11.
Family Law.
Opinion: Theis, J., affirmed.
No. 1-07-0417, In
re Marriage of Jamieson, filed
2/6/08. (DBS)
Following the
entry of a judgment for dissolution of marriage,
respondent, Edward S. Jamieson, sought review of a qualified domestic
relations order entered by the circuit court of Cook County, awarding a
share of Edward’s profit-sharing benefits to petitioner, Kathleen M.
Jamieson. Issues: (1) whether the order violates the
Employee Retirement Income Security Act of 1974; and (2) whether the
order is contrary to the parties’ marital settlement agreement because
it grants Kathleen increased benefits not otherwise provided for under
Edward’s profit-sharing plan.
12.
Criminal Law.
Opinion: Karnezis, J., reversed and remanded.
No. 1-06-2610, People
v. Molina,
filed 2/5/08. (DBS)
On September
19, 1997, defendant entered a plea of guilty for his role
in the murder of Aaron Love in exchange for a 25-year sentence of
imprisonment. Although
the plea was
fully negotiated, during the proceedings the trial court
did not advise defendant that he would be subject to a three-year
period of mandatory supervised release (MSR) following his 25-year
sentence. Defendant filed a late petition for postconviction
relief. Issue: whether the trial court improperly granted
defendant's postconviction relief because defendant’s petition was
untimely and he failed to set forth sufficient facts to establish that
the delay in filing was not due to his culpable negligence.
13.
Tort Law.
Opinion: Cahill, J., reversed and remanded.
No. 1-06-2842, Lacey
v. The Village of Palatine, filed
2/4/08. (DBS)
Plaintiffs
Susan H. Lacey and Helena Kolbasky appeal the trial court's
dismissal of their second amended complaint under section 2-619(a)(9)
of the Code of Civil Procedure. Plaintiffs sued the
municipalities and police officers of Palatine and Glenview,
defendants, after the murders in 2004 of Mary E. Lacey and her mother
Margaret Ballog by Steven Zirko. Issues: (1) whether
defendants violated the Illinois Domestic Violence Act of 1986 by
failing to protect the victims after learning of Zirko’s plan to have
Mary murdered; (2) whether the Local Governmental and Governmental
Employees Tort Immunity Act grants defendants immunity; and (3) whether
defendants the Domestic Violence Act grants defendant's immunity.
5 Supreme Court
Cases
Posted 2/07/08
1. Criminal
Law: Appellate Court reversed, Trial Court Affirmed: Parolee has
no expectation of privacy and can be searched without warrant; Burke, J.
No. 102562 People
v. Wilson Filed 2/07/08 (LJD)
In 2002, this defendant was placed on mandatory supervised
release (previously referred to as parole) from a 15-year sentence for
armed violence. He signed an agreement to the conditions of his release
which stated: “You shall consent to a search of your person, property,
or residence under your control” and “You shall refrain from the use or
possession of narcotics or other controlled substances.”
About a year later, based on an anonymous tip, Wilson’s parole officer
and two Chicago police officers visited the apartment, where they were
given permission to enter by a member of defendant’s family.
There was no search warrant, and consent to search the bedroom was
neither asked for nor given. The room was searched and cocaine and
heroin were found. At a subsequent Cook County bench trial, defendant
was convicted of possession with intent to deliver after his pretrial
motion to suppress the fruits of the search had been denied. These
results, however, did not suit the appellate court, which, in two
successive rulings, found a fourth amendment violation. In 2006,
the United States Supreme court held in Samson v. California that the fourth
amendment does not prohibit a police officer from conducting a
suspicionless search of a parolee. In this decision, the Illinois
Supreme Court followed this reasoning and held that the agreement which
Wilson signed in connection with his mandatory supervised release was
sufficient to satisfy the fourth amendment. The conviction entered in
the trial court was affirmed.
2.
Defamation: Appellate Court Reversed, Trail Court affirmed: epitaphs
aimed at ethnic or religious groups are not actionable. Karmeier,
J.
No. 103331 Imperial
Design v. Cosmo's Designer Direct Filed 2/07/08 (LJD)
Imperial
Apparel is a menswear store in Lincolnwood and Cosmo’s is a menswear
store in Villa Park. In October of 2004, Cosmo’s paid for the
publication of an advertisement in the Chicago Sun-Times newspaper of
which Imperial complained in this Cook County lawsuit. Defamation was
alleged, and damages were sought. .The circuit court dismissed
all the counts of the complaint with prejudice. The appellate court
allowed some of the counts to stand, and this appeal followed. In this
decision, the Illinois Supreme Court held that the advertisement,
although distasteful, was protected by the first amendment because it
could not reasonably be interpreted as stating facts. The results
reached in the circuit court were affirmed.
3. Post
Conviction relief: Appellate Court Affirmed: Claim of statutory right
may be raised at any time; entitlement to credit for time served;
Karmeier, J.
No. 104216 People
v. Caballero
Filed 2/07/08 (LJD)
For possession
of cocaine with intent to deliver in the year 2000, this offender was
convicted by a Du Page County jury. After conviction, his bond was
revoked, and he remained in jail until sentencing. That sentence of a
term of years included a fine for the “street value” of the
narcotic. On Caballero’s direct appeal, the appellate court
affirmed, and he then filed a postconviction petition which was
rejected by the circuit court. On appeal from that dismissal, he raised
for the first time the issue of whether his fine could be reduced by
the per
diem
monetary credit which statute makes available for time spent in
custody. Although the appellate court affirmed the dismissal of the
postconviction petition, it granted the credit. The State objected and
appealed.
In
this decision, the Illinois Supreme Court held that the claim here is a
statutory one which is not cognizable as a separate issue upon which to
base postconviction relief. Nevertheless, it held that such a claim may
be raised at any time and at any stage of court proceedings, even on
(as here) appeal in a postconviction proceeding. Granting the credit is
a simple ministerial act that will promote judicial economy by ending
any further proceedings on the matter. Thus, Caballero was not barred
from asserting his claim. The State had argued that this
statutory credit is not available to those whose bond is revoked after
conviction and who spent time in jail between conviction and
sentencing. The supreme court rejected this view. It affirmed the
appellate court’s award of a credit.
4.
Criminal Law: Appellate and Trial Court Affirmed: Ineffective Counsel
for failure to advise of possibility that defendant could plead guilty
but mentally ill. Garman, J.
No. 104300
People
v. Manning
Filed 2/07/08 (LJD)
In 2003, a
woman returning to her Wheaton home surprised this defendant while he
was in the process of removing numerous items. He was prosecuted in the
circuit court of Du Page County for residential burglary, and, because
of his extensive criminal history, was subject to Class X sentencing of
up to 30 years. He also had a history of mental health and addiction
issues. The State offered to recommend a 20-year sentence in return for
a guilty plea, but the defendant rejected this and, hoping for a term
of 8-to-15 years, entered an open plea of guilty. The State then
requested 24 years, and the court imposed 22, with a recommendation for
drug treatment and psychiatric and psychological services while in
prison. Manning then asked the circuit court for permission to
withdraw his guilty plea because, he alleged, his trial attorney had
been ineffective in failing to advise him about the possibility of
pleading guilty but mentally ill. The trial court denied this motion,
finding that the plea was knowing and voluntary, and the appellate
court affirmed. In this decision, the Illinois Supreme Court upheld the
results below because the defendant could not show prejudice. A plea of
guilty but mentally ill would not have affected the available
sentencing range. Also, such a plea would not have made available to
the defendant more mental-health services than those to which the
defendant would already be entitled, especially after the sentencing
judge had recommended substance-abuse services and mental-health
treatment
5. Criminal
Law: Appellate and Trial Court Affirmed: If admissible under federal
law and inadmissible under Illinois law, and no collusion between Feds
and Illinois police, no court order required to allow the
evidence. Fitzgerald, J.
No.
104386 People
v. Coleman
Filed 2/07/08 (LJD)
In 2001, the federal Bureau of Alcohol, Tobacco, Firearms
and Explosives, the Wheaton police department, the Du Page County
sheriff’s department and the Addison police department began a multiple
jurisdiction narcotics investigation which eventually targeted
mid-level drug dealers in other municipalities. This defendant was
arrested and tried for two counts of unlawful delivery of cocaine. At
his Du Page County trial, despite his motion to suppress, audio
recordings were admitted of conversations which he had with a “wired”
confidential informant for the State to whom the defendant sold
narcotics at a Glen Ellyn apartment complex. A federal agent had
authorized the wiring of the informant, but no court order was
obtained, and, under federal law, none was required. Under the Illinois
eavesdropping statute, a court order would have been required because
the consent of only one party to the conversation (the informant) would
not be sufficient under the state statute. The fourth amendment
does not require the consent of more than one party to a conversation
for it to be recorded. Before trial, defendant sought to have the
recordings suppressed, but was unsuccessful. A jury convicted him and
the appellate court affirmed.
A
line of appellate cases almost 30 years old holds that, where there is
a joint federal and state investigation, evidence otherwise
inadmissible under the Illinois eavesdropping statute may nevertheless
be admitted if the recordings were lawfully obtained under federal law
(which was the case here) and if there is no official collusion seeking
to avoid Illinois’ stricter statutory requirement. The defendant could
not show collusion. The Illinois Supreme Court declined to overrule
this line of precedent, especially since the legislature has not
reacted to these cases by changing the statute. The supreme court held
that the motion to suppress was properly denied and that the conviction
had been properly affirmed by the appellate court.
3 Appellate
Cases
Posted 2/06/08
1. Civil
Procedure: Affirmed: Forum Selection Clauses; working under purchase
order without objecting to its terms; elements of unreasonableness
necessary to declare forum selection clause invalid. Murphy, J.
No.
1-06-2905 Compass
Environmental v. Polu Kai Services Filed1/31/08
(LJD)
Compass Environmental Services, Inc., a Delaware corporation with its
principal place of business in Chicago, filed suit against defendant,
Polu Kai Services, L.L.C., a Virginia limited-liability company. After
the trial court denied defendant’s motion to quash pursuant to section
2-301(a) of the Code of Civil Procedure (735 ILCS 5/2-301(a) (West
2004)), defendant petitioned for leave to appeal pursuant to Supreme
Court Rule 306(a)(3) (210 Ill. 2d R. 306(a)(3)). For the following
reasons, we affirm.
2. Criminal
Law: Affirmed: Failure to ask jury about presumption of innocence
can be waived by failure of defense counsel to ask judge to do so; now,
under rule, judge must do so sua sponte, but rule not effective untail
after this trial , no ineffective counsel argument can be established
since no prejudice given evidence against defendant; O'Brien, J.
No.
1-05-0414 People
v. Gilbert
Filed1/31/08
(LJD)
Defendant, Terrance Gilbert, appeals his conviction for burglary and
his eight-year sentence of imprisonment. On appeal, defendant contends
that: (1) the trial court erred by failing to question prospective
jurors about their understanding of the presumption of innocence, the
prosecution's burden of proof, and defendant's right not to testify or
call any witnesses; and (2) the trial court erred by failing to order a
fitness hearing. We affirm.
3. Domestic
Relations: Affirmed: Grandparents visitation shall take place during
time with related parents' time with the child. Wexstten, J.
No.
5-07-0256 In
re Grandparent Visitation of China Pfalzgraf, a Minor Filed
2/04/08
(LJD)
The petitioners, Cynthia and Roger Pfalzgraf, appeal from the circuit
court's order entered on their petition for grandparent visitation (750
ILCS 5/607 (West 2006)). For the reasons that follow, we affirm.
5 Appellate
Cases
Posted 2/04/08
1. Real
Estate: Affirmed: Failure to provide disclosure statement can cause
voiding of contract; no time period set out. Welch, J.
No.5-06-0626
Muir
v. Merano Filed1/30/08
(LJD)
This is an
action brought under the Residential Real Property Disclosure Act (the
Act) (765 ILCS 77/1 et seq. (West 2006)) to recover a $10,000 earnest
money deposit paid by the plaintiffs, Curt Muir and Valorie Muir, to
the defendant, Scott Merano, on a contract to purchase a house.
Judgment in favor of plaintiff affirmed.
2. Domestic
Violence: Affirmed as modified: Family Member defined in statute;
casual acquaintance not enough under Act: dating for 1 1/2 months and
sexual relationship enough for conviction; there is strong presumption
that counsel's conduct is trial strategy which must be overcome for a
finding of ineffective counsel. Neville, J.
No. 1-06-0005 People
v. Irvine
Filed 1/31/08 (LJD)
Defendant,
Alfred Irvine, was found guilty of domestic battery and sentenced to 12
months of conditional discharge, to mandatory domestic violence classes
and to fees and fines of $379. Judgement affirmed but some fees
vacated
3.
Criminal Law: Affirmed in part and Reversed in part: Controlled
substance must be proved: comparison of pills with pictures in a book
by manufacturer not enough; failure to state what chemical tests
were performed on pills; how tests were performed; whether tests were
conclusive not enough to prove content beyond reasonable doubt;
restitution for money paid for purchasing drugs by undercover agent not
authorized by statute; Stewart, J.
No. 5-06-0418 People
v. Mocaby
Filed 1/31/08 (LJD)
Following a
jury trial in the circuit court of Franklin County, the defendant, Joni
R. Mocaby, was found guilty of the unlawful delivery of a controlled
substance, 10 pills containing morphine (720 ILCS 570/401(d) (West
2002)); the unlawful delivery of a controlled substance, 30 pills
containing diazepam (720 ILCS 570/401(g) (West 2002)); and the unlawful
delivery of a controlled substance, 36 pills containing
dihydrocodeinone (720 ILCS 570/401(d) (West 2002)). The trial
court sentenced the defendant to 30 months' probation and ordered
her to pay various fees, including $420 in restitution to the Southern
Illinois Drug Task Force. The defendant raises numerous arguments on
appeal. We reverse in part, vacate in part, and modify in part.
4. Criminal
Law: Affirmed as modified: $5.00/day credit should be applied for
days after conviction but before sentencing. Callum, J.
No. 2-06-0212
People
v. Rivera
Filed 1/31/08 (LJD)
Following a
bench trial, defendant, Carmen G. Rivera, was convicted of unlawful
possession of a controlled substance with intent to deliver. 720 ILCS
570/401(a)(2)(D) (West 2000). The trial court sentenced her to 15
years' imprisonment and allowed 116 days' credit against her sentence
for time served. The court also ordered defendant to pay a $212 DNA
analysis fee and a $3,000 statutory controlled-substance assessment.
The court did not award any monetary credit against the drug assessment
(725 ILCS 5/110--14 (West 2000)), and it denied defendant's motion to
reconsider. Defendant appeals, arguing that she should receive a $580
credit against her drug assessment for the 116 days she served in
custody. We agree and order the clerk of the circuit court to issue a
corrected mittimus.
5.
Defamation: Reversed and Grant of Summary Judgment for Defendant
Affirmed: use of term "crappy" is rhetoric hyperbole and not
actionable; substantial truth is defense to defamation case;
Determination of union disciplinary action is a conviction as stated by
the courts. Bowman, J.
No.
2-07-0173, 2-07-0204 J.
Maki Construction Company v. Chicago Regional Council of Carpenters Filed 2/1/08
(LJD)
There once was
a union that called plaintiffs' work crappy; this made
plaintiffs quite unhappy; at trial, the
jury filled plaintiffs' purse; but, alas, on
appeal, we must reverse