Quick takes on Thursday, Nov.18, Illinois Supreme Court opinions

Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in State Building Venture v. O'Donnell, In re the commitment of Hernandez, People v. Zimmerman, People v. Amigon, People v. Alexander, People v. Jocko and People v. Carrera.

CIVIL

State Building Venture v. O'Donnell

By Jean M. Prendergast, Schuyler, Roche & Crisham, P.C Lawyers who represent parties doing business with the State will be interested to read the unanimous Illinois Supreme Court decision of State Building Venture v. O’Donnell, in which the Court invoked the doctrine of sovereign immunity to bar the plaintiff’s complaint against the acting director of the Illinois Department of Central Management Services (“CMS”). In 1983, the parties entered into a 15-year lease for space in the Thompson Center with renewal options.  The plaintiff’s 2006 lawsuit was dismissed as moot, with no further appeal. In 2007, the plaintiff filed a second lawsuit, seeking another declaration and alleging that it continued to be damaged by CMS’s lease interpretation. The circuit court granted the plaintiff’s motion for judgment on the pleadings and interpreted the enabling statute for the lease as allowing automatic renewal at the plaintiff’s discretion. The appellate court affirmed, but Justice Hoffman dissented on the ground that the lawsuit was barred by sovereign immunity. On appeal, the supreme court rejected CMS’s attempt to invoke the doctrine of collateral estoppel and held that the resolution of the 2006 lawsuit hinged on mootness and thus was not identical to the issue on appeal. The court further ruled that no final judgment existed because the circuit court did not render a decision on the merits in the first case. Nevertheless, the Court reversed the appellate judgment on the basis that sovereign immunity barred the plaintiff’s claim. The Court reasoned that this issue is governed by the construction of the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2006)) and Court of Claims Act (745 ILCS 5/1 (West 2006)). The Court further determined that the plain language of these Acts, read together, provides that the State shall not be made a defendant or a party in any court, and that Court of Claims has exclusive jurisdiction over all contract claims against the State. The issue, then, became whether the action brought against the director of CMS constituted an action against the State. The Court distinguished several appellate court decisions and ruled that because the plaintiff sought a judgment that the lease is binding, including renewal options, along with costs, expenses, attorney’s fees, and other relief, the plaintiff effectively sought a determination of its contract rights with the State.  Therefore, the Court held that sovereign immunity applied because such relief falls squarely within the exclusive jurisdiction of the Court of Claims. Opinion 108673 Case summary

In re the Commitment of Hernandez

By Jean M. Prendergast, Schuyler, Roche & Crisham, P.C Today, in In re Commitment of Benjamin Hernandez, the Illinois Supreme Court left open the issue of whether appellate jurisdiction exists in a sexually violent person’s case when the notice of appeal was filed after the circuit court ordered conditional release, but before entry of the order approving the release plan. Everyone agreed that the case was moot because the respondent returned to custody. The State, however, encouraged the Court to apply the public interest exception to the mootness doctrine, and decide the merits. The appellate court had regarded the State’s appeal as untimely because the order on appeal – the approval of conditional release -- was not final or enforceable. The appellate court reasoned that (1) the substantial matter of the release plan remained unresolved and (2) release remained impossible until the court approved the release plan. The appellate court also held that the State’s appeal could not be saved by Supreme Court Rule 303(a)(1), which provides, in part, that “[a] notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order.”  Ill.S.Ct.R. 303(a)(1).  The appellate court held that Rule 303(a)(1) applies when a written order follows an oral final judgment. Ultimately, the supreme court vacated the appellate decision and declined to review these issues, holding that the State failed to establish that an authoritative determination by the Court is needed for future guidance. The Court recognized that the appellate court resolved an issue of first impression by applying a settled rule in a new context, i.e. conditional release. The Court reasoned, however, that no conflict in the law exists which would require the Court’s intervention under the public interest exception. The Court likewise found no conflict in the law with respect to the State’s argument that even if its notice of appeal was premature, it was saved by Rule 303(a)(1). The Court noted that the appellate court twice has issued consistent decisions on Rule 303(a)(1). Most notably, the Court rejected the notion that parties will never know when to file a notice of appeal in a sexually violent person’s case and will face a “Hobson’s choice.” The decision openly warns litigants that any time a party is genuinely confused about which of a court’s orders is the final order, the party may always seek protection by filing multiple notices of appeal. This safeguard militated against the issuance of a mere advisory opinion. Opinion 108824 Case summary

CRIMINAL

People v. Zimmerman

By Kerry J. Bryson, Office of the State Appellate Defender The Court confronted the issue of whether the defendant’s prior juvenile adjudication of an act which would have been a felony if committed by an adult should have been introduced at his jury trial for aggravated unlawful use of a weapon. The outcome hinged on whether the prior adjudication was a sentence-enhancing factor, elevating the offense from a Class A misdemeanor to a Class 4 felony, or whether it was an element of the offense of aggravated unlawful use of a weapon. Noting that the prior adjudication language was included among a list of nine factors which transformed unlawful use of a weapon into “aggravated” unlawful use of a weapon, and that the statute contains a separate subsection pertaining to sentencing, the Court concluded that the prior adjudication was intended to be an element of the offense and not a sentencing factor. The factor’s placement within the statute was determinative of its status as an element. Because it is an element of the offense, evidence of the prior juvenile adjudication was properly admitted. Opinion 109259 Case summary

People v. Amigon

By Kerry J. Bryson, Office of the State Appellate Defender In 1998, defendant was convicted of, among other things, aggravated battery with a firearm for the 1995 shooting of Alfonso Ruiz. Approximately 5 1/2 years later, Ruiz died and defendant was charged with, and convicted of, his murder. The State’s medical expert concluded, within a reasonable degree of medical certainty, that Ruiz’s 1995 gunshot wound caused quadriplegia that made him more susceptible to pneumonia, from which he ultimately died more than five years later. Defendant argued that the State failed to prove beyond a reasonable doubt that the 1995 gunshot was the proximate cause of Ruiz’s death from pneumonia more than five years later. The Court rejected this argument noting that “the mere possibility that a rational jury could have acquitted defendant based on the proximate cause evidence” is not the standard for reviewing a challenge to the sufficiency of the evidence. Under the well-established standard, considering the evidence in the light most favorable to the prosecution, the court could not say that no reasonable trier of fact could have found the requisite elements of the offense proven beyond a reasonable doubt. While the passage of five years between the incident and the death might be considered, it is not determinative of the issue of proximate cause. Defendant also challenged the introduction of his non-video-recorded custodial statement at his trial, arguing for retroactive application of 725 ILCS 5/103-2.1(b) which provides that such a statement is “presumed to be inadmissible.” The Court quickly rejected this argument, citing the legislature’s decision to delay the enforcement of the recording requirement for two years after the statute’s enactment date as evidence of the legislature’s intent that it not be applied retroactively. Opinion 108319 Case summary

People v. Alexander

By Jay Wiegman, Office of the State Appellate Defender When he was a ninth-grade student at a Peoria high school, Dione Alexander was involved in a confrontation with another student, pulled out a gun and fired five shots at the other student while running through the halls during a break in between classes. No injuries resulted. Following a jury trial, defendant was convicted of aggravated discharge of a firearm, and sentenced to a 24-year term. The appellate court remanded for resentencing because the trial court stated that the worst part of the defendant's conduct was that he had fired the shots in a school, which is a factor implicit in the offense, given that the offense was elevated from a Class 1 to a Class X because it occurred on school property. On remand, the trial court again imposed the 24-year term. Defendant appealed again, claiming that his sentence was excessive given the defendant's age, background, and rehabilitative potential, and because nobody was injured. The Appellate Court, Third District agreed, and reduced defendant's sentence to the minimum, 6 years. In dissent, Justice Holdridge maintained that the majority's decision constituted a reweighing of the sentencing factors. The State appealed, and the Supreme Court agreed with Justice Holdridge. The Supreme Court concluded that the trial court's sentence was neither manifestly disproportionate to the nature of the offense nor greatly at variance with the spirit and purpose of the law, and therefore reinstated the original 24-year sentence. On appeal to the Supreme Court, defendant argued that, as a 15-year-old offender, his age and rehabilitative potential should have been taken into greater consideration, relying upon the recent USSC case Graham v. Florida, in which the Supreme Court held that juveniles cannot be sentenced to life without the possibility of parole for nonhomicide offenses, in part because their mental and emotional development renders them less culpable than adult offenders. The Illinois Supreme Court did not discuss Graham, or Roper v. Simmons, which laid the foundation for Graham, because the Illinois Supreme Court in this case concluded that the trial court adequately and appropriately considered all relevant factors in determining that a sentence higher than the minimum was appropriate for an offender who fired several shots in a school. Nonetheless, practitioners should consider the applicability and rationale of Graham and Roper when dealing with young offenders. Opinion 108932 Case summary

People v. Jocko

By Kerry J. Bryson, Office of the State Appellate Defender In People v. Krankel, 102 Ill. 2d 181 (1984), the Court mandated that there be some inquiry into a defendant’s pro se post-trial claims of ineffective assistance of counsel. Subsequent cases have made clear the scope of review that is necessary and the standard for determining whether new counsel is required. In Jocko, the defendant sought to extend the Krankel line of cases to pre-trial claims of ineffective assistance of counsel. While the appellate court agreed with the defendant’s position, the Supreme Court did not. The Court noted that ineffective assistance claims generally cannot be resolved pre-trial because there is no way for the defendant to establish that he was prejudiced by counsel’s representation since defendant cannot show that alleged errors affected the outcome of the proceedings. The Court did not disturb cases holding that a circuit court may be obligated to investigate certain Sixth Amendment claims prior to trial – e.g., conflict of interest or complete deprivation of counsel – but declined to extend that requirement to any and all pre-trial claims of ineffective assistance. In most other circumstances, however, courts need not concern themselves with a defendant’s pre-trial ineffective assistance of counsel claims. A defendant who believes his counsel is not providing effective representation, cannot challenge that representation until after trial and conviction. He or she simply must wait it out because, unless he or she is convicted, there can be no prejudice. Opinion 108465 Case summary

People v. Carrera

By Kerry J. Bryson, Office of the State Appellate Defender An individual being detained by INS and facing deportation for a criminal offense cannot bring a claim under the Post-Conviction Hearing Act. INS detention does not qualify the individual as a “person imprisoned in the penitentiary” as the Act requires. At the time defendant filed his petition, he had completed his sentence of probation for the underlying criminal offense. Deportation proceedings by the INS are separate from the state court criminal proceedings, even if the INS instituted those proceedings based solely on the state court conviction. Carrera argued that the recent United States Supreme Court decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), holding that counsel must inform her client whether his guilty plea carries a risk of deportation, gave him standing to proceed with his post-conviction petition. Defendant argued that under Padilla, deportation constitutes punishment under the Act. The Court rejected defendant’s Padilla argument and perhaps tipped its hand as to the potential extent of Padilla’s application in future cases. The Court noted that “Padilla declined to classify deportation as either a direct or a collateral consequence” and held that even after Padilla, it could not say that deportation is a sentencing consequence imposed on the basis of the plea to a criminal offense. While not directly confronting the issue, this might be read to indicate the Court’s reluctance to give Padilla broad application here in Illinois. Opinion 109294 Case summary

People v. Ligon

By Jay Wiegman, Office of the State Appellate Defender The Post-Conviction Hearing Act provides a method by which persons under criminal sentence can assert that their convictions were the result of a substantial denial of their rights under the United States or the Illinois Constitution or both. There are three stages to this process. Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the original proceeding took place. If the trial court finds that the petition presents the gist of a Constitutional claim, the cause is advanced to the second stage, at which counsel is appointed. A circuit court may summarily dismiss a postconviction petition if it determines that the petition is frivolous or is patently without merit. Any claim of substantial denial of constitutional rights not raised in the original or amended petition is deemed waived. In the instant case, the defendant, on direct appeal, raised two issues alleging ineffectiveness of counsel. The Appellate Court did not consider these issues, determining that they were based on matters outside the record. The Appellate Court stated that these matters were more properly reviewed in post-conviction proceedings. Defendant then filed a postconviction petition, but did not raise the two remaining ineffectiveness claims; instead, he asserted a sentencing challenge. The petition was summarily dismissed. On appeal from that dismissal, the defendant referred again to his remaining two ineffectiveness claims. He argued that he had a federal constitutional right to appointment of counsel at the first stage of postconviction concerning the claims as to which the Appellate Court had declined to rule. The summary dismissal of the petition was affirmed by the Appellate Court. On appeal to the Illinois Supreme Court, defendant asserted that the federal constitution requires appointment of counsel for indigent postconviction petitioners at the summary dismissal stage whenever the appellate court on direct review has declined to address an ineffective assistance of counsel claim because the facts needed to adjudicate the claim are outside the record and thus cannot be resolved on direct review.The Illinois Supreme Court rejected this claim, and found that there is no federal constitutional right to the assistance of counsel connected with proceedings seeking collateral relief, even where those proceedings are the first tier of review for an ineffective assistance of counsel claim. At the first stage of post-conviction proceedings, a defendant need only present the gist of a constitutional claim to survive summary dismissal. This is a purposely low threshold that is one of the factors that distinguishes this case from those where the defendants face significantly higher legal hurdles to obtain collateral review. Opinion 108855 Case summary

People v. McDonough

By Kerry J. Bryson, Office of the State Appellate Defender In a DUI prosecution, the circuit court granted a motion to suppress evidence and quash arrest, and went on to rescind McDonough’s statutory summary suspension. The State appealed, and the appellate court reversed and remanded, concluding that, even if there was a fourth amendment violation, there was no police misconduct and thus no need to apply the exclusionary rule. The Supreme Court affirmed the reversal and remand, albeit on different grounds. Here, a police officer noticed defendant’s vehicle stopped on the shoulder of the road with its headlights off. The officer did not see anything unusual, but decided to inquire whether the occupants needed assistance because the car had not been there 10 minutes earlier when the officer passed through the same area. The officer approached the vehicle from behind and turned on his overhead lights because it was dark and there was other traffic. The officer exited his squad car, approached McDonough’s car, and shined a flashlight into the interior and did not observe any weapons or alcohol. Defendant responded that he was waiting for a friend, and the officer quickly detected the odor of alcohol on defendant’s breath. In response to questioning, defendant admitted consuming three drinks. Defendant then failed field sobriety tests and refused a Brethalyzer. The Supreme Court held that there was no improper seizure, but that the officer’s conduct fell within his “community caretaking” function and any seizure of defendant was reasonable. From that encounter, the officer acquired the reasonable suspicion necessary to further detain and investigate. With no fourth amendment violation, the exclusionary rule simply did not apply. Opinion 109489 Case summary

People v. Williams

By Jay Wiegman, Office of the State Appellate Defender 720 ILCS 5/33-3(b) provides that a public employee commits misconduct when, in the public employee’s official capacity, he knowingly performs an act he knows is forbidden by law. The official misconduct statute was intended to prevent public officers and employees from using an official position in the commission of an offense. In the instant case, defendant, a police dispatcher for the Village of Glenwood, was convicted of official misconduct for having notified the father of her child about police activity near his residence in order to facilitate illegal drug dealing by him. Narrowly construing the term "law" for purposes of reviewing the official misconduct statute, the Supreme Court concluded that the "law" the defendant had allegedly broken was in fact a rule of the police department for which she worked. The Court concluded that the record failed to show that the confidentiality rules enacted by the police department were formally passed or enacted by the Village as an ordinance. There was no evidence that any formal legislative process was used in adopting the confidentiality rules. The Supreme Court therefore affirmed the Appellate Court's reversal of defendant's conviction and its entry of judgment of acquittal. Opinion 108947 Case summary

People v. Dabbs

By Kerry J. Bryson, Office of the State Appellate Defender The Court was confronted with another issue of statutory interpretation in Dabbs. Specifically, Dabbs challenged the constitutionality of Section 115-7.4, the statute permitting the introduction of evidence of prior acts of domestic violence in certain domestic abuse prosecutions. Citing the statutory language that prior act evidence “is admissible” (rather than mirroring language in Section 115-7.3 which states that certain prior act evidence “may be admissible” in certain sex offense prosecutions), Dabbs argued that the statute did not require the court to determine the relevance of the prior act evidence or balance its probative value against its prejudicial effect. The Court rejected this interpretation, concluding that “is admissible” simply means that the evidence “may be admitted.” The Court went on to note that the prior act evidence must be relevant and its prejudicial effect must not outweigh its probative value, and concluded that such requirements ensure that defendants’ due process rights are not violated. The Court also found that the same concerns in sex crime prosecutions are at issue in domestic violence prosecutions (reluctant victims, vulnerable victims, etc), and that the propensity statutes serve the legitimate purpose of promoting prosecutions of those offenses. Defense counsel predicted that statutory exceptions to the general rule against propensity evidence will multiply in light of the present “trend” toward abrogating the rule against such evidence. The Court acknowledged this argument, noted that the common law rule against propensity evidence is not of constitutional magnitude, and noted that defendant had cited no case holding that the admission of propensity evidence violated due process. Might this suggest that a continued erosion of the propensity evidence rule will be met with open arms by the Supreme Court? Perhaps, but practitioners faced with such a challenge should keep in mind the Court’s focus, thus far, on the types of criminal prosecutions involved and what sets those apart from other type of offenses where no propensity evidence exceptions exist presently. Opinion 109698 Case summary