Office of the State Appellate Defender Issues Pending in the ISC

              SUMMARY OF SIGNIFICANT CRIMINAL ISSUES
PENDING IN THE ILLINOIS SUPREME COURT*
April 3, 2012
Prepared by:
David Bergschneider
Patricia Unsinn
Deputy State Appellate Defenders
Office of the State Appellate Defender
400 W. Monroe, Suite 202
P.O. Box 5240
Springfield, IL 62705-5240
*SUMMARIES OF NEW CASES APPEAR IN BOLD AND WITH AN ASTERISK
TABLE OF CONTENTS
APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
COLLATERAL REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CONFESSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CONTEMPT OF COURT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
DISCOVERY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
DOUBLE JEOPARDY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
FITNESS TO STAND TRIAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
GUILTY PLEAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
HOMICIDE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
INDICTMENTS, INFORMATIONS, COMPLAINTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
JUVENILE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
NARCOTICS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
OBSCENITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PAROLE, PARDONS & PRISONERS’ RIGHTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
REASONABLE DOUBT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SEARCH & SEIZURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SENTENCING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SEX OFFENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SPEEDY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
STATUTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
UNLAWFUL USE OF WEAPONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
WAIVER – PLAIN ERROR – HARMLESS ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
TABLE OF AUTHORITIES
In re Detention of Lieberman. . . . . . . . . . . . . . 22
In re Austin M.. . . . . . . . . . . . . . . . . . . . . . . 7, 13
In re Danielle J... . . . . . . . . . . . . . . . . . . . . 13, 23
In re Detention of Stanbridge. . . . . . . . . . . . . . 22
*In re M. I.. . . . . . . . . . . . . . . . . . . . . . . . . 15, 24
In re S.B... . . . . . . . . . . . . . . . . . . . . . . 10, 14, 21
In re Tyrees C.. . . . . . . . . . . . . . . . . . . . . . . . . 14
*People ex rel. City of Chicago v. LaMirage,
Hollins & Kyles. . . . . . . . . . . . . . . . . . . . . . . . . 7
People ex rel. Devine v. Linn. . . . . . . . . . . . . . . 2
People ex rel. Glasgow v. Kinney.. . . . . . . . . . . 8
People v. Aguilar. . . . . . . . . . . . . . . . . . . . . . . 25
People v. Allison. . . . . . . . . . . . . . . . . . . . . . . . 18
*People v. Bailey.. . . . . . . . . . . . . . . . . . . 10, 12
People v. Clemons. . . . . . . . . . . . . . . . . . . . . . 20
People v. Coleman. . . . . . . . . . . . . . . . . . . . . . . 4
People v. Colyar. . . . . . . . . . . . . . . . . . . . . . 1, 18
*People v. Cregan.. . . . . . . . . . . . . . . . . . . . . 19
People v. Cruz. . . . . . . . . . . . . . . . . . . . . . . . . . 4
*People v. Domagala. . . . . . . . . . . . . . . . . . . . 5
People v. Dominquez. . . . . . . . . . . . . . . . . . . . 11
*People v. Donelson.. . . . . . . . . . . . . . . . . . . 11
*People v. Drew. . . . . . . . . . . . . . . . . . . . . . . 19
People v. Edwards. . . . . . . . . . . . . . . . . . . . . . . 2
People v. English. . . . . . . . . . . . . . . . . . . 3, 8, 12
People v. Evans. . . . . . . . . . . . . . . . . . . 5, 16, 21
People v. Fields. . . . . . . . . . . . . . . . . . . . . . . . . 7
People v. Fitzpatrick. . . . . . . . . . . . . . . . . . . . . 19
People v. Geiger.. . . . . . . . . . . . . . . . . . . 1, 6, 21
People v. Giraud.. . . . . . . . . . . . . . . . . . . . . . . 22
People v. Grant.. . . . . . . . . . . . . . . . . . . . . . . . 18
*People v. Guzman. . . . . . . . . . . . . . . . . . . 8, 12
People v. Hackett. . . . . . . . . . . . . . . . . . . . . . . 17
People v. Hollins.. . . . . . . . . . . . . . . . . . . . 15, 24
People v. Hughes. . . . . . . . . . . . . . . . . . . . 11, 13
People v. Hunt. . . . . . . . . . . . . . . . . . . . . . . . . . 5
People v. Kelly. . . . . . . . . . . . . . . . . . . . . . . 2, 20
People v. Lacy. . . . . . . . . . . . . . . . . . . . . . . . . 23
People v. Lara. . . . . . . . . . . . . . . . . . . . . . . . . 16
People v. Leach. . . . . . . . . . . . . . . . . . . . . 10, 16
*People v. Lloyd. . . . . . . . . . . . . . . . . . . . . . . 22
People v. Martinez. . . . . . . . . . . . . . . . . . . . . 1, 9
People v. Murdock. . . . . . . . . . . . . . . . . . . . 6, 14
People v. Prinzing.. . . . . . . . . . . . . . . . . . . . . . 17
People v. Rivera. . . . . . . . . . . . . . . . . . . . . . . . 25
*People v. Strong. . . . . . . . . . . . . . . . . . . . . 3, 9
People v. Tate. . . . . . . . . . . . . . . . . . . . . . . . . . 3
People v. Wilmington. . . . . . . . . . . . . . . . . . . . 26
People v. Young. . . . . . . . . . . . . . . . . . . . . 15, 24
Wilson v. Cook County. . . . . . . . . . . . . . . . . . . 25
APPEAL
No. 111835
People v. Colyar, State leave to appeal granted 5/25/11 from 407 Ill. App. 3d 294, 941 N.E.2d 479 (1st Dist.
2010)
Whether the Appellate Court erroneously concluded that the State forfeited the argument that a
search of the defendant’s car was conducted for purposes of officer safety, where the record showed that the
State had argued Terry at the first hearing on the motion to suppress. (§2-6(a))
Defense counsel:
No. 113181
People v. Geiger, Defense petition for leave to appeal granted 11/30/11 from 2011 IL App (3d) 090688 (No.
3-09-0688, 11/10/11)
Whether the Illinois Supreme Court should adopt the standard of review utilized by federal courts for
reviewing contempt sentences, which is less deferential than the standard utilized in reviewing sentences for
other offenses. (§2-7(a))
Defense counsel: Fletcher Hamill, Elgin OSAD
No. 113475
People v. Martinez, Defense leave to appeal granted 1/25/12 from 2011 IL App (2d) 100498 (No. 2-10-0498,
10/6/11)
Whether the Appellate Court had jurisdiction to entertain a State appeal from the trial court’s order
of acquittal, which the State contended was a “sham” and should be treated as a dismissal because the State
had refused to participate in the trial, where the State participated in jury selection and agreed that if its
witnesses did not appear after jury selection it would either move to dismiss or proceed without the witnesses,
and after the jury was sworn and given preliminary instructions the trial court granted a motion for a directed
verdict when the State declined to make an opening argument or present any evidence. (§2-4(a))
Defense counsel: Darren Miller, Elgin OSAD
1
COLLATERAL REMEDIES
No. 106311
People ex rel. Devine v. Linn, (Mandamus/Prohibition)
Whether the State may obtain review of a constitutional ruling – that the mandatory sentence violated
the proportionate penalties clause – by seeking a writ of mandamus or prohibition rather than by taking a direct
appeal. (§9-3)
Defense counsel:
No. 107832
People v. Kelly, Direct appeal (McLean)
Whether a defendant may challenge the constitutionality of the mandatory 20-year-enhancement to
armed robbery by filing a post-conviction petition, instead of moving to withdraw the plea. (§9-1(c))
Defense counsel: Susan Wilham, Springfield OSAD
No. 111711
People v. Edwards, Defense petition for leave to appeal granted 3/30/11 from an unpublished order (Nos.
1-07-0714 & 1-08-1089 cons. 9/30/10) (1st Dist.)
1. Whether a court should judge the sufficiency of a successive post-conviction petition in accordance
with the standards applicable to first-stage proceedings, accepting the allegations in the petition as true and
dismissing only if the allegations lack an arguable basis in fact and in law. (§9-1(i)(1))
2. Whether a court may deny defendant leave to file a successive post-conviction petition because
his allegations of actual innocence based on newly-discovered evidence are contradicted by his post-arrest
statement. (§9-1(i)(2))
Defense counsel: Shawn O’Toole, Chicago OSAD
2
No. 112214
People v. Tate, Defense petition for leave to appeal granted 9/28/11 from unpublished order (No. 1-09-2379,
3/8/11) (1st Dist.)
1. Whether the trial court erred in denying defendant’s post-conviction petition at the first stage by
applying technical pleading requirements, construing the petitioner’s affidavit strictly against him, engaging
in credibility assessments without benefit of a hearing, and dismissing, without comment, a post-conviction
petition which demonstrated valid, nonfrivolous constitutional claims. (§9-1(e)(1))
2. Whether a post-conviction petition fails to raise a due process claim of actual innocence merely
because the affidavits used to support the due process claim were also used to support a claim of ineffective
assistance of counsel. (§9-1(c))
Defense counsel: Daniel S. Alexander, Chicago
No. 112890
People v. English, Defense petition for leave to appeal granted 1/11/12 from 2011 IL App (3d) 100764
Whether defendant forfeited the claim that aggravated battery of a child could not serve as the
predicate felony for his felony murder conviction due to his failure to raise that issue on direct appeal, where
People v. Viser, 62 Ill. 2d 568, 343 N.E.2d 903 (1975), was the controlling law when defendant’s appeal was
pending, and People v. Morgan, 97 Ill. 2d 404, 758 N.E.2d 818 (2001), and People v. Pelt, 207 Ill. 2d 434,
800 N.E.2d 1193 (2003), had not yet been decided. (§9-1(h)(2))
Defense counsel: Kerry Bryson, Ottawa OSAD
*No. 113056
People v. Strong, Defense leave to appeal granted 1/11/12 from unpublished order (2011 IL App (2d)
101012-U)
1. Whether a petitioner seeking leave to file a successive post-conviction petition based on
newly discovered evidence showing actual innocence must demonstrate that the newly discovered
evidence would vindicate or exonerate him, or only that the newly discovered evidence is of such
conclusive character as to probably change the result on retrial. (§§9-1(c), 9-1(i)(1))
3
2. Whether the trial court erred by denying leave to file a successive post-conviction petition
based on newly discovered evidence where the new evidence established that prosecutors knowingly
presented false testimony at trial. (§9-1(i)(1))
Defense counsel: Brian J. Nisbet, David Luger, Thomas F. Geraghty & Charles A. Devore, Chicago
No. 113307
People v. Coleman, Defense leave to appeal granted 1/25/12 from 2011 IL App (3d) 100419-U (No. 3-10-
0419, 8/25/11)
1. Whether a post-conviction petitioner who raised a claim of actual innocence was entitled to a new
trial where five newly discovered witnesses admitted their guilt of the crime and completely exculpated the
petitioner, because the newly discovered evidence would likely have been believed by a reasonable jury and
would have compelled an acquittal. (§9-1(c))
2. Whether the test to be applied by the post-conviction court to a claim of actual innocence based
on newly-discovered evidence includes consideration of two factors - whether the newly discovered evidence
of innocence would result in an acquittal if believed, and if so, whether a reasonable jury could have believed
the evidence. (§9-1(c))
Defense counsel: Karen Daniel, Center of Wrongful Convictions, Bluhm Legal Clinic, Chicago
No. 113399
People v. Cruz, Defense leave to appeal granted 1/25/12 from unpublished order 2011 IL App (1st) 091944-U
Where a pro se petitioner represented himself at the second stage of post-conviction proceedings
and claimed that he was not culpably negligent for the late filing of the initial post-conviction petition, whether
the Appellate Court erred by refusing to address the merits of the claim because it had been raised in a
supplemental petition that was signed but not notarized. (§9-1(d))
Defense counsel: Pamela Rubeo, Chicago OSAD
4
No. 113471
People v. Evans, Defense leave to appeal granted 1/25/12 from unpublished order 2011 IL App (1st) 100391-
U
Whether a pro se petitioner seeking to meet the “cause” and “prejudice” test for filing a successive
post-conviction petition is required to meet a higher standard than that his claim of cause and prejudice has
an arguable basis in fact. (§9-1(i)(2))
Defense counsel: Patrick Cassidy, Chicago OSAD
*No. 113688
People v. Domagala, Defense petition for leave to appeal granted 3/28/12 from 2011 IL App (1st)
092905-U
Whether a post-conviction petition made a substantial showing of prejudice due to counsel’s
ineffectiveness in failing to investigate a defense of gross medical negligence to a charge of first-degree
murder, where defendant had only committed a battery on the deceased, the cause of death
was an infection resulting from the deceased repeatedly pulling out a feeding tube, and the petition
was supported by the affidavit of an expert that insertion of the feeding tube was gross medical
negligence. (§9-1(f))
Defense counsel: Shawn O’Toole, Chicago OSAD
CONFESSIONS
No. 111089
People v. Hunt, State’s petition for leave to appeal allowed 1/26/11 from 403 Ill. App. 3d 802, 934 N.E.2d
1039 (1st Dist. 2010)
Whether the rule of People v. McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994), which prohibits the
police from continuing to interrogate a suspect without informing him that an attorney is present at the police
5
station and is attempting to speak to him, applies to an interrogation of a suspect by an informant conducted
at the direction of the police in a police station, where no police are physically present in the interrogation
room. (§10-4(a))
Defense counsel: Jack P. Rimland, Chicago
No. 112362
People v. Murdock, Defense petition for leave to appeal granted 9/28/11 from unpublished order (No. 3-07-
0438, 4/7/11) (3d Dist.)
Whether the statement of a 16-year-old defendant should have been suppressed as involuntary where
the officers conducting the interrogation acted as if the minor was an adult, making no accommodation for his
youth and without attempting to comply with the relevant provisions of the Juvenile Court Act, which include
allowing the defendant access to his grandfather, who was present in the station, and to a juvenile officer.
(§10-5(c)(2))
Defense counsel: Fletcher Hamill, Ottawa OSAD
CONTEMPT OF COURT
No. 113181
People v. Geiger, Defense petition for leave to appeal granted 11/30/11 from 2011 IL App (3d) 090688 (No.
3-09-0688, 11/10/11)
Whether a 20-year-sentence for contempt of court, based a refusal to testify at a first degree murder
trial, was so disproportionate to the offense that a reduction is justified. (§12-1)
Defense counsel: Fletcher Hamill, Elgin OSAD
6
*No. 113482
People ex rel. City of Chicago v. LaMirage, Hollins & Kyles, City leave to appeal granted 3/28/12 from
2011 IL App (1st) 093547
Whether in reviewing defendants’ convictions for indirect criminal contempt for wilfully
violating building court orders, the Appellate Court erred by failing to: (1) apply the criminal standard
of review – whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, and (2) show sufficient deference to the findings of the trier of fact. (§12-
1)
Defense counsel:
COUNSEL
No. 111194
In re Austin M., Defense leave to appeal granted 1/26/11 from 403 Ill. App. 3d 667, 941 N.E.2d 903 (4th Dist.
2010)
Whether the respondent minor was deprived of the right to counsel at a delinquency proceeding
where his attorney acted as a guardian ad litem rather than as a zealous advocate for the minor’s rights. (§13-
1(a))
Defense counsel: Jacqueline Bullard, Springfield OSAD
No. 112438
People v. Fields, State petition for leave to appeal granted 9/28/11 from 409 Ill. App. 3d 398, 948 N.E.2d 290
(3d Dist. 2011)
Whether defense counsel labored under a per se conflict of interest where he had previously acted
as guardian ad litem for a prosecution witness in a juvenile proceeding unrelated to the prosecution of
defendant. (§13-5(c))
Defense counsel: Mark Fisher, Ottawa OSAD
7
No. 112890
People v. English, Defense petition for leave to appeal granted 1/11/12 from 2011 IL App (3d) 100764
Whether appellate counsel was ineffective in failing to argue on appeal that aggravated battery of
a child could not serve as the predicate felony for defendant’s felony murder conviction where the acts
constituting that predicate felony arise from and are inherent in the murder and had no felonious purpose other
than the killing itself. (§13-4(b)(10))
Defense counsel: Kerry Bryson, Ottawa OSAD
No. 113197
People ex rel. Glasgow v. Kinney, Petition for original writ of Mandamus (Will)
Whether People v. Finley, 209 Ill. App. 3d 968, 568 N.E.2d 412 (3d Dist. 1991), which held that under
Baldasar v. Illinois, 446 U.S. 222 (1980), a prior uncounseled misdemeanor conviction may not be used to
impose an increased term of imprisonment upon a subsequent conviction, has been overruled by Nicols v.
U.S., 511 U.S. 738 (1994), so that defendant’s prior uncounseled misdemeanor conviction for driving under
the influence may be used to enhance the sentence for a subsequent DUI. (§13-1(a))
Defense counsel: Jeffrey Tomczak, Joliet
*No. 113730
People v. Guzman, State petition for leave to appeal granted 3/28/12 from 2011 IL App (3d) 090464
Whether the potential for defendant to be deported satisfies the prejudice prong of an
ineffectiveness claim based on counsel’s failure to advise defendant of the immigration
consequences of his guilty plea. (§13-4(b)(2))
Defense counsel: Carrie Stevens, Panel Attorney, Fruita, Colorado
8
DISCOVERY
*No. 113056
People v. Strong, Defense leave to appeal granted 1/11/12 from unpublished order (2011 IL App (2d)
101012-U)
1. Whether the trial court erred by denying leave to file a successive post-conviction petition
based on newly discovered evidence where the new evidence established that prosecutors knowingly
presented false testimony at trial. (§§15-1, 15-5(b))
2. Whether the materiality standard of Brady v. Maryland, which requires a showing of a
reasonable probability that had evidence been disclosed to the defense the result of the proceeding
would have been different, was satisfied by the State’s failure to disclose that one of its witnesses had
recanted his testimony where the recantation completely discredited the witness’s trial testimony and
seriously undermined confidence in the outcome of the trial. (§15-1)
Defense counsel: Brian J. Nisbet, David Luger, Thomas F. Geraghty & Charles A. Devore, Chicago
DOUBLE JEOPARDY
No. 113475
People v. Martinez, Defense leave to appeal granted 1/25/12 from 2011 IL App (2d) 100498 (No. 2-10-0498,
10/6/11)
Whether the Appellate Court had jurisdiction to entertain a State appeal from the trial court’s order
of acquittal, which the State contended was a “sham” and should be treated as a dismissal because the State
had refused to participate in the trial, where the State participated in jury selection and agreed that if its
witnesses did not appear after jury selection it would either move to dismiss or proceed without the witnesses,
and after the jury was sworn and given preliminary instructions the trial court granted a motion for a directed
verdict when the State declined to make an opening argument or present any evidence. (§17-4)
Defense counsel: Darren Miller, Elgin OSAD
9
*No. 113690
People v. Bailey, Defense petition for leave to appeal granted 3/28/12 from 2011 IL App (1st) 090074-U
Whether the court was barred from sentencing the defendant to natural life based on its
finding that defendant was death eligible, where the jury returned a general verdict of guilty of first-degree
murder after the court denied the defense request for a separate verdict form for felony
murder, because the general verdict must be interpreted as a verdict of guilty of felony murder only
in accord with People v. Smith, 233 Ill. 2d 1, 906 N.E.2d 529 (2009), and a felony-murder verdict is an
acquittal of facts necessary to a finding of death eligibility. (§17-4)
Defense counsel: Heidi Lambros, Chicago OSAD
EVIDENCE
No. 111534
People v. Leach, Defense leave to appeal granted 1/26/11 from 405 Ill. App. 3d 297, 939 N.E.2d 537 (1st
Dist. 2010)
Whether the Appellate Court erred by finding that an autopsy protocol prepared by a non-testifying
medical examiner for use in a criminal prosecution was not “testimonial” hearsay which was subject to
Crawford v. Washington, and was instead admissible as a public document. (§§19-10(b), 19-28(b))
Defense counsel: Maya Szilak, Chicago OSAD
FITNESS TO STAND TRIAL
No. 112204
In re S.B., State leave to appeal granted 5/25/11 from 408 Ill. App. 3d 516, 945 N.E.2d 102 (3d Dist. 2011)
1. Whether the adult fitness procedures of the Criminal Code are incorporated in the Juvenile Court
Act. (Ch. 21)
2. Whether a minor charged on a delinquency petition and found unfit to stand trial, but who is not
found “not not guilty” in a discharge hearing, must register as a sex offender under 730 ILCS 150/2, which
requires registration by a person who is charged with a sex offense and the “subject of a finding not resulting
in an acquittal.” (Ch. 21)
Defense counsel: Carrie Stevens, Fruita, Colorado
10
GUILTY PLEAS
No. 111336
People v. Dominquez, Defense leave to appeal granted 1/26/11 from unpublished order (No. 1-09-0125,
9/7/10) (1st Dist.)
Where the trial court fails to give proper admonishments to a guilty plea defendant concerning his
appellate rights under Supreme Court Rule 605, and the case reaches the reviewing court without the
defendant having filed an appropriate motion, must the defendant establish prejudice from the improper
admonishments in order to obtain a remand for proper admonishments and the opportunity to file a proper
motion. (§24-8(a))
Defense counsel: Michael Orenstein, Chicago OSAD
No. 112817
People v. Hughes, Defense petition for leave to appeal granted 11/30/11 from 2011 IL App (2d) 090992
Whether defendant’s guilty plea was involuntary where the circuit court failed to advise him that his
plea could be the basis for the filing of a sexually-violent-person petition. (§§24-5, 24-6(a))
Defense counsel: Darren Miller, Elgin OSAD
*No. 113603
People v. Donelson, Defense leave to appeal granted 3/28/12 from 2011 IL App (1st) 092594
Whether People v. White, 2011 IL 109616 (2011), which held that a fully negotiated guilty plea
agreement is void and must be vacated where the defendant entered a plea in return for statutorily
unauthorized sentences, applies where, without exceeding the total prison term required by the plea
agreement, statutorily authorized sentences could be fashioned from the unauthorized sentences
imposed under the plea agreement. (§§24-1, 24-3)
Defense counsel: Jessica Pamon, Chicago OSAD
11
*No. 113730
People v. Guzman, State petition for leave to appeal granted 3/28/12 from 2011 IL App (3d) 090464
Whether defendant may raise for the first time on appeal from the denial of a motion to
withdraw the plea, a claim of ineffective assistance of counsel for failure to advise defendant of the
immigration consequences of his guilty plea, where the record is silent as to counsel’s advice. (§24-
8(b)(1))
Defense counsel: Carrie Stevens, Panel Attorney, Fruita, Colorado
HOMICIDE
No. 112890
People v. English, Defense petition for leave to appeal granted 1/11/12 from 2011 IL App (3d) 100764
Whether a conviction for felony murder can be based on the predicate felony of aggravated battery
to a child where the acts constituting that predicate felony arise from and are inherent in the murder and had
no felonious purpose other than the killing itself. (§26-2)
Defense counsel: Kerry Bryson, Ottawa OSAD
*No. 113690
People v. Bailey, Defense petition for leave to appeal granted 3/28/12 from 2011 IL App (1st) 090074-U
Whether the court was barred from sentencing the defendant to natural life based on its
finding that defendant was death eligible, where the jury returned a general verdict of guilty of first-degree
murder after the court denied the defense request for a separate verdict form for felony
murder, because the general verdict must be interpreted as a verdict of guilty of felony murder only
in accord with People v. Smith, 233 Ill. 2d 1, 906 N.E.2d 529 (2009), and a felony-murder verdict is an
acquittal of facts necessary to a finding of death eligibility. (§26-2)
Defense counsel: Heidi Lambros, Chicago OSAD
12
INDICTMENTS, INFORMATIONS, COMPLAINTS
No. 112817
People v. Hughes, Defense petition for leave to appeal granted 11/30/11 from 2011 IL App (2d) 090992
Whether the circuit court had jurisdiction under the revestment doctrine to accept defendant’s guilty
plea to a charge that the State had nol-prossed. (§29-1)
Defense counsel: Darren Miller, Elgin OSAD
JUVENILE
No. 110810
In re Danielle J., Direct appeal (Cook)
1. Whether 705 ILCS 405/5-615(1)(b) violates the separation of powers doctrine and equal protection
because it requires the consent of the prosecutor before the trial court may order a continuance under
supervision in a delinquency case. (§33-6(f)(1))
2. Whether the minor had standing to challenge §615(1)(b) where the trial court pronounced the minor
guilty before the State raised an objection to a continuance under supervision, because a continuance under
supervision is authorized only before a finding of guilt is made. (§33-6(f)(1))
Defense counsel: Lester Finkle, Cook County Public Defender’s Office
No. 111194
In re Austin M., Defense leave to appeal granted 1/26/11 from 403 Ill. App. 3d 667, 941 N.E.2d 903 (4th Dist.
2010)
Whether the respondent minor was deprived of his right to counsel at a delinquency proceeding where
his attorney acted as a guardian ad litem rather than as a zealous advocate for the minor’s rights. (§33-4)
Defense counsel: Jacqueline Bullard, Springfield OSAD
13
No. 112118
In re Tyrees C., Direct appeal (Cook County)
Whether the separation of powers doctrine, equal protection, and the right to due process are violated
by 705 ILCS 405/5-615(1)(b), which allows the State’s Attorney’s office to preclude supervision in a
delinquency case by raising an objection. (§33-6(f)(1))
Defense counsel: Cook County Public Defender
No. 112204
In re S.B., State leave to appeal granted 5/25/11 from 408 Ill. App. 3d 516, 945 N.E.2d 102 (3d Dist. 2011)
1. Whether the adult fitness procedures of the Criminal Code are incorporated in the Juvenile Court
Act. (§33-9)
2. Whether a minor charged on a delinquency petition and found unfit to stand trial, but who is not
found “not not guilty” in a discharge hearing, must register as a sex offender under 730 ILCS 150/2, which
requires registration by a person who is charged with a sex offense and the “subject of a finding not resulting
in an acquittal.” (§33-9)
Defense counsel: Carrie Stevens, Fruita, Colorado
No. 112362
People v. Murdock, Defense petition for leave to appeal granted 9/28/11 from unpublished order (No. 3-07-
0438, 4/7/11) (3d Dist.)
Whether the statement of a 16-year-old defendant should have been suppressed as involuntary where
the officers conducting the interrogation acted as if the minor was an adult, making no accommodation for his
youth and without attempting to comply with the relevant provisions of the Juvenile Court Act, which include
allowing the defendant access to his grandfather, who was present in the station, and to a juvenile officer.
(§33-9)
Defense counsel: Fletcher Hamill, Ottawa OSAD
14
*No. 113776
In re M.I., Defense petition for leave to appeal granted 3/28/12 from 2011 IL App (1st) 100865
1. Whether the requirement of the extended-juvenile-jurisdiction statute that a hearing be
conducted within a particular time frame on the State’s motion to designate the proceeding as an
extended-juvenile-jurisdiction proceeding is mandatory or directory. (§33-6(e))
2. Whether the extended-juvenile-jurisdiction statute is unconstitutionally vague in that it does
not provide fair warning of the conduct that is prohibited and fails to provide adequate guidance to
authorities called upon to enforce its provisions. (§33-6(e))
Defense counsel: Emily Filpi, Chicago OSAD
NARCOTICS
No. 111745
People v. Young, State leave to appeal granted 3/30/11 from unpublished order (No. 1-08-2690, 12/3/10)
(1st Dist.)
Whether the legislature intended the phrase “any school” in 720 ILCS 570/407(b)(2), which enhances
the penalty for delivery of controlled substances within 1,000 feet “of the real property comprising any school,”
to include a preschool. (§35-1)
Defense counsel: Beth Herndobler, Chicago OSAD
OBSCENITY
No. 112754
People v. Hollins, Defense petition for leave to appeal granted 9/28/11 from an unpublished order (No. 2-10-
0051, 6/27/11)
Whether the Illinois pornography statute, which criminalizes the depiction of sexual activity involving
persons under 18 (725 ILCS 5/11-20.1), constitutionally applies to a defendant who photographed his legal
consensual sexual activity with his 17-year-old girlfriend, for their private use. (§36-2)
Defense counsel: Kathleen Hamill, Elgin OSAD
15
PAROLE, PARDONS & PRISONERS’ RIGHTS
No. 113471
People v. Evans, Defense leave to appeal granted 1/25/12 from unpublished order 2011 IL App (1st) 100391-
U
Whether due process is violated where the combination of the mandatory supervised release term
and the 85% truth in sentencing law results in the defendant being held in custody longer than the term of
years specified by the trial court in imposing the sentence. (§37-1(a))
Defense counsel: Patrick Cassidy, Chicago OSAD
REASONABLE DOUBT
No. 111534
People v. Leach, Defense leave to appeal granted 1/26/11 from 405 Ill. App. 3d 297, 939 N.E.2d 537 (1st
Dist. 2010)
Whether the Appellate Court erred by concluding that the evidence was sufficient to uphold a
conviction for first degree murder rather than involuntary manslaughter, where the Appellate Court ignored
uncontested evidence that the defendant acted recklessly and drew an impermissible negative inference from
the fact that the defendant made alternative arguments that the evidence proved only involuntary
manslaughter. (§42-1)
Defense counsel: Maya Szilak, Chicago OSAD
No. 112370
People v. Lara, State petition for leave to appeal granted 9/28/11 from 408 Ill. App. 3d 732, 946 N.E.2d 516
(1st Dist. 2011)
1. Whether the corpus delicti rule, which states that a conviction may not be based solely on the
defendant’s confession and that the State must introduce evidence other than the confession to prove that
the offense occurred, requires that the independent evidence corroborate every element of the offense. (§42-
1)
16
2. Whether the Appellate Court erred by finding that the corpus delicti rule was not satisfied
concerning predatory criminal sexual assault, which requires a showing of sexual penetration, where the
complainant stated that she had not been penetrated and the only evidence of penetration came from the
defendant’s statement. (§42-1)
Defense counsel: Megan Ledbetter, Chicago OSAD
SEARCH & SEIZURE
No. 108523
People v. Prinzing, State leave to appeal granted 9/30/09 from 389 Ill. App. 3d 923, 907 N.E.2d 87 (2d Dist.
2009)
Whether an officer’s discovery of apparent child pornography on the hard drive of defendant’s
computer was beyond the scope of defendant’s consent to search the computer, which allowed a search for
evidence of computer viruses or any indication that defendant’s credit card information had been
compromised. (§44-11(a))
Defense counsel:
No. 111781
People v. Hackett, State leave to appeal granted 3/3/11 from 406 Ill. App. 3d 209, 943 N.E.2d 13 (3d Dist.
2010)
Whether the trial court erred by finding that a police officer lacked probable cause to stop a motorist
who twice momentarily swerved across a lane divider line, where the vehicle’s tires slightly crossed the divider
for a few seconds and there was no basis to believe that if the defendant did change lanes, he failed to first
determine whether it was safe. (§44-12(a))
Defense counsel:
17
No. 111835
People v. Colyar, State leave to appeal granted 5/25/11 from 407 Ill. App. 3d 294, 941 N.E.2d 479 (1st Dist.
2010)
Whether a bullet observed in plain view on the center console of an automobile provides probable
cause to search the defendant and the car for a weapon. (§§44-6(d), 44-6(e))
Defense counsel:
No. 112734
People v. Grant, State petition for leave to appeal granted 9/28/11 from 2011 IL App (1st) 091107
Whether probable cause exists to arrest defendant for the municipal ordinance violation of soliciting
unlawful business, where the police observed defendant yelling, “Dro, dro,” a slang term for marijuana, at a
passing vehicle at a known narcotics sales spot. (§§44-5(b), 44-6(e))
Defense counsel: Brian McNeil, Chicago OSAD
No. 113221
People v. Allison, Direct appeal (Crawford)
Whether the Illinois Eavesdropping Statute (720 ILCS 5/14-2(a)(1)), which prohibits recording
conversations without the consent of all parties thereto, violates substantive due process because it lacks a
culpable mental state and subjects wholly innocent conduct to prosecution, and violates the First Amendment
because it creates an absolute prohibition against citizens making audio recordings of public officials
performing their public duties. (§44-17)
Defense counsel: William Sunderman, Charleston
18
No. 113449
People v. Fitzpatrick, Defense leave to appeal granted 1/25/12 from 2011 IL App (2d) 100463 (No. 2-10-
0463, 11/3/11)
Whether the Illinois Constitution authorizes an arrest, and a full custodial search incident to that arrest,
for commission of a petty offense which is punishable by fine only. (§44-5(a))
Defense counsel: Barb Paschen, Elgin OSAD
*No. 113600
People v. Cregan, Defense leave to appeal granted 3/28/12 from 2011 IL App (4th) 100477
1. Whether People v. Hoskins, 101 Ill. 2d 209, 461 N.E.2d 941 (1984), which held that an
arrestee’s purse may be searched incident to her arrest because the purse is immediately associated
with her person even if it cannot be accessed by the arrestee, survived Arizona v. Gant, 556 U.S. 332
(2009), which held that an automobile cannot be searched incident to the arrest of a recent occupant
if the arrestee has been secured in a location from which there is no possibility that she will gain
access to the vehicle. (§§44-13, 44-18)
2. Whether the Appellate Court erred by finding that Arizona v. Gant, 556 U.S. 332 (2009), which
held that an automobile cannot be searched incident to the arrest of a recent occupant if the arrestee
has been secured in a location from which there is no possibility that she will gain access to the
vehicle, applies only to vehicle searches, because citizens will be afforded less protection in their
luggage and its contents than they have in their vehicles, which carry a lesser expectation of privacy.
(§§44-13, 44-18)
Defense counsel: Amber Gray, Springfield OSAD
*No. 114023
People v. Drew, Direct appeal (Cook)
Whether the Illinois Eavesdropping Statute (720 ILCS 5/14-2), which prohibits recording
conversations without the consent of all parties thereto, violates substantive due process because
it lacks a culpable mental state and subjects wholly innocent conduct to prosecution. (§44-17)
Defense counsel: Joshua Kutnick, Chicago
19
SENTENCING
No. 107821
People v. Clemons, State appeal granted 11/24/10 from unpublished order (No. 4-06-0823, 11/26/08) (4th
Dist.)
1. Whether the proportionate penalties clause permits disparate sentences for armed violence and
armed robbery while armed with a firearm, because armed violence is a broad crime which can be predicated
on any of several felonies while armed with any of several weapons, and armed robbery while armed with a
firearm is a narrow offense which applies only to one predicate and involves only one type of weapon. (§45-
1(b)(2))
2. Whether the identical elements test should be abandoned in proportionate penalties analysis. (§45-
1(b)(2))
Defense counsel: Susan Wilham, Springfield OSAD
No. 107832
People v. Kelly, Direct appeal (McLean)
1. Whether the 20-year-enhancement for armed robbery with discharge of a firearm is unconstitutional
because the offense has identical elements to armed violence predicated on robbery, which carries a lesser
sentence. (§45-1(b)(2))
2. Whether the remedy for a violation of the proportionate penalties clause is to strike the
unconstitutional portion of the sentence. (§45-1(b)(2))
3. Whether People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1 (2007), which held that the
enhancement penalties for armed robberies involving the use of a firearm violate the proportionate penalties
clause, applies retroactively to sentences imposed before Hauschild was decided. (§45-1(b)(2))
4. Whether the Supreme Court should overrule Hauschild and abandon the identical elements
approach to assessing proportionality. (§45-1(b)(2))
Defense counsel: Susan Wilham, Springfield OSAD
20
No. 113181
People v. Geiger, Defense petition for leave to appeal granted 11/30/11 from 2011 IL App (3d) 090688 (No.
3-09-0688, 11/10/11)
Whether a 20-year-sentence for contempt of court, based a refusal to testify at a first degree murder
trial, was so disproportionate to the offense that a reduction is justified. (§45-4(a))
Defense counsel: Fletcher Hamill, Elgin OSAD
No. 113471
People v. Evans, Defense leave to appeal granted 1/25/12 from unpublished order 2011 IL App (1st) 100391-
U
Whether due process is violated where the combination of the mandatory supervised release term
and the 85% truth in sentencing law results in the defendant being held in custody longer than the term of
years specified by the trial court in imposing the sentence. (§§45-1(a), 45-16(a))
Defense counsel: Patrick Cassidy, Chicago OSAD
SEX OFFENSES
No. 112204
In re S.B., State leave to appeal granted 5/25/11 from 408 Ill. App. 3d 516, 945 N.E.2d 102 (3d Dist. 2011)
Whether a minor charged on a delinquency petition and found unfit to stand trial, but who is not found
“not not guilty” in a discharge hearing, must register as a sex offender under 730 ILCS 150/2, which requires
registration by a person who is charged with a sex offense and the “subject of a finding not resulting in an
acquittal.” (§46-7)
Defense counsel: Carrie Stevens, Fruita, Colorado
21
No. 112337
In re Detention of Stanbridge, State leave to appeal granted 11/30/11 from 408 Ill. App. 3d 553, 948 N.E.2d
1063 (4th Dist. 2011)(consolidated with No. 112802, In re Detention of Lieberman, Defense leave to appeal
granted 11/30/11 from 2011 IL App (1st) 090796 (No. 1-09-0796, 6/30/11))
Whether In re Detention of Hardin, 238 Ill. 2d 33, 932 N.E.2d 1016 (2010), which determined how
expert opinion testimony is to be evaluated when considering an initial Sexually Violent Person commitment
petition, applies to a post-commitment probable cause determination concerning whether the committed
individual is still a Sexually Violent Person, so that in a post-commitment hearing the trial court is not permitted
to weigh the conflicting testimony of respective experts. (§46-6)
Defense counsel: Betsy Bier, Quincy
No. 113116
People v. Giraud, State leave to appeal granted 1/25/12 from 2011 IL App (1st) 091261 (No. 1-09-1261,
8/30/11)
Whether 720 ILCS 5/12-14(a)(3), which elevates criminal sexual assault to aggravated criminal sexual
assault if the defendant acts “in such a manner as to threaten or endanger the life of the victim or any other
person,” requires that the threat occur contemporaneously with the criminal sexual assault, and therefore does
not apply where an offender who is HIV-positive poses a future risk to the victim’s health by engaging in
forced, unprotected intercourse. (§46-2(a))
Defense counsel: Amanda Ingram, Chicago OSAD
*No. 113510
People v. Lloyd, Defense leave to appeal granted 3/28/12 from 2011 IL App (4th) 100094
Whether the State’s evidence proved a violation of 720 ILCS 5/12-13(a)(2), which defines the
offense of criminal sexual assault as an act of sexual penetration where the accused “knew that the
22
victim was unable to understand the nature of the act or was unable to give knowing consent,” where
the complainant did not suffer from a mental defect or physical impairment and, under the State’s
theory, was unable to give knowing consent solely because she was under the age of legal consent.
(§46-2(a))
Defense counsel: Ryan Wilson, Springfield OSAD
SPEEDY TRIAL
No. 113216
People v. Lacy, State leave to appeal granted 1/25/12 from 2011 IL App (5th) 100347 (No. 5-10-0347,
9/20/11)
Whether 725 ILCS 5/103-5(c), which authorizes the trial court to continue the cause for “not more than
an additional 60 days” if the State has unsuccessfully exercised due diligence to obtain the results of DNA
testing, limits the State to seeking a single 60-day extension or was intended to authorize multiple
continuances so long as each is not more than 60 days. (§47-5)
Defense counsel: Paul Christenson, Murphysboro and Christian Baril, Carbondale
STATUTES
No. 110810
In re Danielle J., Direct appeal (Cook)
1. Whether 705 ILCS 405/5-615(1)(b) violates the separation of powers doctrine and equal protection
because it requires the consent of the prosecutor before the trial court may order a continuance under
supervision in a delinquency case. (§§48-3(c), 48-3(i))
2. Whether the minor had standing to challenge §615(1)(b) where the trial court pronounced the minor
guilty before the State raised an objection to a continuance under supervision, because a continuance under
supervision is authorized only before a finding of guilt is made. (§48-1)
Defense counsel: Lester Finkle, Cook County Public Defender’s Office
23
No. 111745
People v. Young, State leave to appeal granted 3/30/11 from unpublished order (No. 1-08-2690, 12/3/10)
(1st Dist.)
Whether the term “any school” in 720 ILCS 570/407(b)(2), which enhances the penalty for delivery
of controlled substances within 1,000 feet “of the real property comprising any school,” is ambiguous because
the legislature did not specifically provide whether preschools were to be included. (§48-1)
Defense counsel: Beth Herndobler, Chicago OSAD
No. 112754
People v. Hollins, Defense petition for leave to appeal granted 9/28/11 from an unpublished order (No. 2-10-
0051, 6/27/11)
Whether the Illinois pornography statute, which criminalizes the depiction of sexual activity involving
persons under 18 (725 ILCS 5/11-20.1), constitutionally applies to a defendant who photographed his legal
consensual sexual activity with his 17-year-old girlfriend, for their private use. (§§48-3(b), 48-3(c), 48-3(d))
Defense counsel: Kathleen Hamill, Elgin OSAD
*No. 113776
In re M.I., Defense petition for leave to appeal granted 3/28/12 from 2011 IL App (1st) 100865
1. Whether the requirement of the extended-juvenile-jurisdiction statute that a hearing be
conducted within a particular time frame on the State’s motion to designate the proceeding as an
extended-juvenile-jurisdiction proceeding is mandatory or directory. (§48-1)
2. Whether the extended-juvenile-jurisdiction statute is unconstitutionally vague in that it does
not provide fair warning of the conduct that is prohibited and fails to provide adequate guidance to
authorities called upon to enforce its provisions. (§48-3(b))
Defense counsel: Emily Filpi, Chicago OSAD
24
UNLAWFUL USE OF WEAPONS
No. 112026
Wilson v. Cook County, Plaintiffs’ petition for leave to appeal granted 5/25/11 from 407 Ill. App. 3d 759, 943
N.E.2d 768 (1st Dist. 2011)
Whether Cook County’s ban on assault weapon and assault weapon ammunition is unconstitutionally
vague, violates equal protection, and violates the fundamental Second Amendment right to bear arms as
recognized by District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008) and
McDonald v. City of Chicago, ___ U.S. ___, 130 S. Ct. 3020, 177 L.Ed.2d 894 (2010). (§53-1)
Defense counsel: Victor D. Quilici, River Grove for Matthew Wilson, Troy Edhlund, and Joseph M. Essineo
No. 112116
People v. Aguilar, Defense leave to appeal granted 5/25/11 from 408 Ill. App. 3d 136, 944 N.E.2d 816 (1st
Dist. 2011)
Whether the Second Amendment right to bear arms, as interpreted by District of Columbia v. Heller,
554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. ___, 130 S. Ct. 3020, 177 L.Ed.2d 894
(2010), is violated by the Illinois aggravated unlawful use of a weapon statute, which at the time of defendant’s
conviction prohibited (in most circumstances) carrying firearms which were uncased, loaded and immediately
accessible. (§§53-1, 53-5(b))
Defense counsel: David Holland, Chicago OSAD
WAIVER – PLAIN ERROR – HARMLESS ERROR
No. 112467
People v. Rivera, State petition for leave to appeal granted 9/28/11 from 409 Ill. App. 3d 122, 947 N.E.2d 819
(1st Dist. 2011)
Whether the Appellate Court erred by finding that a violation of Supreme Court Rule 402(f), which
prohibits the introduction of plea related statements which do not result in a guilty plea, can constitute plain
25
error under the “fundamental error” prong of the plain error doctrine, because the Supreme Court has equated
the second prong with “structural error,” which does not include the mere violation of a Supreme Court Rule.
(§56-2(a))
Defense counsel:
No. 112938
People v. Wilmington, Defense petition for leave to appeal granted 11/30/11 from 2011 IL App (1st) 072518-
B
1. Whether a violation of Supreme Court Rule 431(b) (which requires that the trial court ask potential
jurors if they accept and understand that defendant is presumed innocent, that the State must prove
defendant’s guilt beyond a reasonable doubt, that defendant is not required to offer any evidence, and that
defendant’s failure to testify cannot be held against him) may be noticed as plain error on the ground that the
evidence was closely balanced, where defendant’s conviction depended entirely on his unreliable statement
to the police. (§56-2(b)(6)(a))
2. Whether the circuit court’s failure to confirm that defendant agreed with defense counsel’s decision
to tender a second-degree murder instruction may be noticed as plain error, without any showing of prejudice,
because the error affected defendant’s substantial rights. (§56-2(b)(1)(a))
Defense counsel: Brian Koch, Chicago OSAD
26