Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the criminal cases People v. Clemons, People v. Hunt, People v. Dominguez and People v. Edwards.

People v. Clemons

By Jay Wiegman, Office of the State Appellate Defender

At first blush, it seems a simple axiom: the punishment should fit the crime. Figuring out when a penalty is disproportionate to the offense, however, has long been a thorny issue, particularly because the Legislature has adopted several overlapping provisions that enhance the length of sentences based on the involvement of firearms in offenses.  As a result, criminal defendants frequently argue that their punishment violates  the proportionate penalties clause of the Constitution where they receive a sentence that exceeds the range of sentences applied to other cases that are identical to the offense of which they were convicted. In 2007, the Illinois Supreme Court held that "common sense and sound logic dictate that the penalties for identical offenses should be identical."  People v. Hauschild, 226 Ill. 2d 63. Thus, In Hauschild, the Supreme Court held that "the sentence for armed robbery while armed with a firearm violates the proportionate penalties clause because the penalty for that offense is more severe than the penalty for the identical offense of armed violence predicated on robbery with a category I or category II weapon.” Hauschild, 226 Ill. 2d at 87.

Today, the Supreme Court revisited Hauschild in People v. Clemons, 2012 IL 107821.  In Clemons, the defendant challenged his 25-year sentence for armed robbery with a firearm (Class X offenses punishable by 6-to-30 years imprisonment, plus a 15-year add-on) by making a comparison to the sentencing range for armed violence predicated on robbery with a category I or II weapon, an offense with which he had not been charged. He complained that this other crime had elements that were identical to those of armed robbery with a firearm, for which he was convicted, but had a lower sentencing range of a mere 15 to 30 years (as compared to 21 to 45 years). The appellate court affirmed defendant’s convictions and Clemons filed a petition for leave to appeal with the Supreme Court., which denied the PLA but directed the appellate court to vacate its judgment and reconsider in light of Hauschild, which had been decided while defendant’s direct appeal was pending.  On remand, the appellate court held that because defendant was sentenced under a statute which violated the proportionate penalties clause, the matter must be remanded to the trial court for resentencing in accordance with the armed robbery statute as it existed prior to the adoption of the sentencing enhancements for firearm use, meaning that, on remand to the trial court, defendant would be subject to a term of 6 to 30 years’ imprisonment for his armed robbery conviction, rather than a term of 21 to 45 years’ imprisonment.  The State's PLA was granted and the parties were directed to include in their briefs “a discussion of whether the identical elements test should be abandoned in proportional penalties analysis.” Before the Supreme Court, the State argued that Hauschild should be overruled because it misconstrued the armed violence statute and misapplied the identical elements test. Alternatively, the State argued that the identical elements test should be abandoned because the test is not supported by the constitutional text, invades the power of the legislature, and has become unworkable in practice.

Writing for the majority, Justice Theis cited stare decisis and followed Hauschild. The Court noted that the Legislature's subsequent efforts to "correct" and "clarify" that robbery may not serve as a predicate felony for armed violence did not modify the Court's determination that the pre-Hauschild legislation violated the proportionate penalties clause.  The Supreme Court also held that Hauschild had not misapplied the identical elements test.  Following a lengthy discussion of the history of the identical elements test and its treatment in other states, the Court then the declined to overrule the identical-elements test, and rejected claims that the identical-elements test had become unworkable. The Court instead held that the identical elements test is an objective, straightforward and bright-line test.

Finally, the Court also noted that remanding for resentencing within a range of 15 to 30 years as provided for under the armed violence statute would be improper because the defendant had never been charged with that offense.  Instead, the Court ruled that, on remand, defendant must be sentenced in accordance with the armed robbery statute as it existed prior to the adoption of the enhanced sentencing provisions, meaning that he will be subject to a sentencing range of 6 to 30 years’ imprisonment, to be served concurrently with defendant’s 25-year sentence for home invasion.

Chief Justice Kilbride specially concurred. He agreed with many of the State's criticisms of the identical elements test, but ultimately agreed with the Majority that the State had failed to meet its burden to demonstrate “good cause” or identify “compelling reasons” for departing from stare decisis.  Where the Chief Justice departed from the remainder of the Court was in his belief that the Court should modify its approach to remanding for resentencing when a defendant successfully raises a proportionate penalties challenge under the identical elements test. Rather than strike an entire sentencing statute as unconstitutionally disproportionate even though the statute may overlap significantly with the comparison statute, the Chief Justice would uphold the constitutionality of the overlapping portion of the two sentencing statutes analyzed under the identical elements test: "Only if there is no overlap between the two sentencing statutes should this court declare an entire sentencing statute unconstitutional under the identical elements test.  Thus, in the instant case, because the applicable statutes provide an enhanced sentencing range of 21 to 45 years for armed robbery while armed with a firearm and a sentencing range of 15 to 30 years for the identical offense of armed violence predicated on robbery with a category I weapon, the Chief Justice would find that the appropriate sentencing range is the common ground between the two: 21 to 30 years.

People v. Hunt

By Jay Wiegman, Office of the State Appellate Defender

The United States Supreme Court has consistently held that a defendant's statements to an undercover police agent or informant would not be suppressible because federal case law does not consider an interrogation by an undercover police agent, informant or officer to be a custodial interrogation. In People v. Hunt, 2012 IL 111089, the Illinois Supreme Court today considered whether the defendant’s statements to an inmate-informer should be suppressed pursuant to the court’s decision in People v. McCauley, 163 Ill. 2d 414 (1994), which provided greater right-to-counsel and due-process protections to a suspect than have been held to be applicable under the United States Constitution, in that McCauley held that the Illinois Constitution was violated when a suspect was questioned at a police station while an attorney who, unbeknownst to him, had been retained by his family and was trying unsuccessfully to gain access to him.

While Hunt was being held in the Cook County jail on an unrelated charge, he became a suspect in Shakir Beckley’s murder.  A fellow inmate approached police and said he thought he could get the defendant to make incriminating statements concerning the Beckley homicide. Police set up the inmate-informer to wear a wire and to talk to the defendant. The defendant, who was still incarcerated at the county jail on the unrelated matter, was told that he would be taken to the police station for a lineup. He called the attorney who had been appointed to represent him in that other matter and left a message asking counsel to come to the police station for the lineup. According to counsel, that attorney spent about 45 minutes waiting for access to the defendant during the same time period during which the inmate-informer was conversing with the defendant in an otherwise empty room and listening to his allegedly incriminating statements. By the time counsel reached the defendant, these conversations were over. Hunt was subsequently indicted by the grand jury for the Beckley homicide, and he sought to suppress his statements, initially with success. The appellate court affirmed and the State appealed.

Writing for the Majority, Justice Karmeier concluded that, because defendant was not subjected to police custodial interrogation when he had a conversation with the undercover informant and fellow inmate, during the overhears, McCauley was not applicable. The Court held that defendant had no constitutional right to counsel during the overhears and that detectives were not required to inform defendant that his counsel in an unrelated case was at the police station, asking to speak with him during the first overhear. Thus, detectives were not required to give defendant Miranda warnings before the overhears.  As a result, the Appellate Court erred in upholding the suppression of the statements on McCauley grounds.

Because the Court held that McCauley was not applicable, the potential federal/State clash exemplified by such federal cases as Miranda v. Arizona, 384 U.S. 436 (1966) and Arizona v. Edwards, 451 U.S. 477 (1981) on one hand and People v. McCauley on the other, did not really come into play, as noted by Justice Freeman in his special concurrence. Thus, while Justice Freeman agreed with the majority’s holding that statements made by defendant to an informant during a court-ordered overhear were not obtained in violation of his rights to counsel and to due process under the Illinois Constitution as set forth by this court in McCauley, he would have emphasized that today's decision should not be construed as a departure from McCauley.

People v. Dominguez

By Jay Wiegman, Office of the State Appellate Defender

There is an inherent tension in Supreme Court Rules 605(c) and Rule 604(d) which complements Rule 605:  While Rule 605(c), in requiring an admonishment, must be strictly complied with, the rule itself states that a defendant need only be “substantially” advised of the contents of Rule 605(c), and that it need not be read to him verbatim. In People v. Dominguez, 2012 IL 111336, a closely divided Supreme Court considered the admonishments given a defendant who required an interpreter and, although at least three of the admonitions were considered "problematic," held that the trial court's admonishments "substantially" advised Dominguez of the contents of Rule 605(c).

Justice Garman, joined by Justices Thomas, Karmeier and Theis, first reviewed the tension between the requirement that trial courts "strictly comply" with Rule 605(c) and the allowance that a defendant need only be "substantially advised" of 605(c)'s contents.  The majority noted that "the actual language of Rule 605(c) says that the trial court 'shall advise the defendant substantially as follows.”  [emphasis in original]  Reduced to its simplest terms, this requires that the admonishments be given, but does not require that they be given in any particular form: "Thus, under its plain and ordinary meaning, 'substantially' in the rule does not require a strict verbatim reading of the rule so as to 'substantially advise' defendants of its contents. Rather, the court must impart to a defendant largely that which is specified in the rule, or the rule’s 'essence,' as opposed to 'wholly' what is specified in the rule."  The Court also stated that a written form provided to the defendant helped ensure that defendant was substantially advised.

With that framework in mind, the Court reviewed "three problematic admonitions" given in the instant case.  First, the Court noted that the circuit court told defendant he must “return to the courtroom within 30 days” to file any postplea motion, instead of being able to file by mail. Terming this admonition "imperfect," the Court found it "unfortunate" that the circuit court used the phrase “return to the courtroom.”  Nonetheless, when combined with the written form signed by defendant acknowledging he understood the Rule 605 admonishments, the Court felt that the defendant had been substantially advised. Next, the majority considered that the trial judge failed to properly convey Rule 605(c)(5), when he suggested to  defendant that only after postplea proceedings could defendant get free transcripts and appointed counsel, when Rule 605(c)(5) provides that counsel will be appointed to help with the preparation of the motions. The Court concluded that although the trial court "arguably did not explicitly inform defendant that he was entitled to have an attorney appointed to help him prepare the postplea motions," overall the admonitions reflect that a court-appointed attorney would be available for defendant. Finally, the Court noted that the circuit court completely failed to explain under Rule 605(c)(4) that, should defendant’s plea be vacated, the dismissed charges could be reinstated. This failure to orally admonish defendant was considered cured by the written admonitions that were provided. Thus, the Court held that while the circuit court’s oral admonishments were imperfect and did not use the exact language employed by Rule 605(c), the admonishments provided in this case as a whole, both oral and written, were sufficient to impart the essence or substance of the rule to defendant.

Justice Burke, joined by Chief Justice Kilbride and Justice Freeman in dissent, disagreed with the majority’s conclusion that the admonishments substantially complied with the dictates of Rule 605, noting that two of six admonitions were erroneously given, and one was simply not given in open court. More importantly, however, Justice Burke urged that Rule 605 should amended to require a verbatim reading of the admonishments. Justice Burke stated that a bright line rule would preserve judicial resources by simplifying the process and eliminating unnecessary litigation, and would preserve the important right of defendants at issue: the right to appeal and challenge his or her guilty plea and/or sentence.  Unless and until the Rule is amended, circuit courts would be well-served by the voluntary adoption of a policy of simply reading the appropriate 605 admonitions to defendants at guilty plea proceedings.

People v. Edwards

By Jay Wiegman, Office of the State Appellate Defender

The Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., provides a statutory remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred at trial. The Act is not a substitute for an appeal, but rather, is a collateral attack on a final judgment. In a post-conviction petition, a defendant is barred from raising issues which were raised before and decided by the reviewing court as well as those claims that could have been raised on direct appeal but were not. Only one petition is contemplated under the Act, but successive proceedings may be allowed when a petitioner can establish “cause and prejudice” for the failure to raise the claim or where a fundamental miscarriage of justice would otherwise occur. The "fundamental miscarriage of justice" exception requires that a petitioner demonstrate actual innocence.  Another hurdle to the filing of a successive petition is that a defendant must first obtain leave of court to file a successive petition.

In People v. Edwards, 2012 IL 111711, following the denial of successive petitions that were based on claims of actual innocence, the defendant argued that his successive petitions should be evaluated under the same first-stage standard as an initial postconviction petition, rather than under the cause-and-prejudice standard applied to successive petitions. The Illinois Supreme Court rejected this argument because it would render the “leave of court” language in section 122-1(f) superfluous, because there is no basis in the Act for applying a firststage analysis to a successive petition, and because  treating successive petitions the same as initial petitions ignores the well-settled rule that successive postconviction actions are disfavored by Illinois courts.

Having established what a petitioner must set forth when seeking leave of court to file a successive petition on the basis of actual innocence, Justice Freeman, writing for a unanimous Court, turned to the question of whether  Edwards had asserted a colorable claim of actual innocence as a matter of law, and concluded that he had not. The Court noted that the elements of a colorable claim of actual innocence are that the evidence must be newly discovered, material and not merely cumulative, and of such a conclusive character that it would probably change the result on retrial, i.e., raising the probability that it is more likely than not that no reasonable juror would have convicted in light of the new evidence. Two of the affidavits presented by Edwards were not considered new because they represented facts defendant had known since the offense, and those witnesses could not be viewed as having been unavailable where there had been no attempt to subpoena the witnesses and there was no explanation as to why subpoenas were not issued. The confession of a codefendant who claimed that defendant had not been one of the shooters in this gang-shooting, while not available to the defendant at the time of trial because of the codefendant's privilege against self-incrimination was not considered of benefit to defendant because he had been convicted on an accountability theory. It lacked the conclusive quality needed to invoke the "fundamental miscarriage of justice" exception. As a result, no further postconviction proceedings were required.