Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the criminal cases People v. Rivera, People v. Evans, People v. Eppinger and People v. Somers.

CRIMINAL

People v. Rivera

By Kerry J. Bryson, Office of the State Appellate Defender

While Jose Rivera was in custody, but prior to the filing of charges, he told a detective he would confess if he could get some “guarantees.” Later, in a separate conversation with the detective and an Assistant State’s Attorney, Rivera said he would “talk about what happened,” but he did not want to go to jail; he wanted probation. The ASA and detective told Rivera they could not give him any guarantees. Rivera’s statements were admitted at trial.

The Supreme Court concluded that Rivera’s statements were not plea related. The Court reaffirmed the long-standing test for evaluating whether statements are plea related: (1) the accused exhibited a subjective expectation to negotiate a plea, and (2) that expectation was reasonable under the totality of the circumstances.  Because Rivera had not explicitly offered to plead guilty and his offer to “talk about what happened” was equivocal, the first factor was absent.  Even if a subjective expectation to negotiate had been shown, that expectation would not have been reasonable given the authorities’ express refusals to offer any guarantees.

Also, Rivera cross-appealed an order disqualifying his counsel, Michael Clancy.  Rivera retained Clancy when he was initially taken into police custody. Two years later, while charges were pending, Clancy filed a motion to suppress Rivera’s statements to the police, alleging Rivera had been questioned without counsel after Rivera had invoked his rights to remain silent and have counsel present for any questioning. The motion alleged that Rivera invoked those rights in the presence of the investigating detective, as well as attorney Clancy. The State successfully sought to disqualify Clancy because he would be a witness on the suppression issue and could not be both counsel and witness. Ultimately, Clancy testified at the suppression hearing as Rivera’s only witness.

Clancy’s disqualification was upheld, with the Court citing to Illinois Rule of Professional Conduct 3.7.  The rule prohibits counsel from being a witness on behalf of his client in the course of pending litigation, and the motion to suppress hearing was part of the “pending litigation” against Rivera.  Rule 3.7 is not limited to trial witnesses.

Rivera does not break new ground on either issue considered by the Court. Both issues hinged on the particular facts and circumstances of the case, and the Court reaffirmed longstanding principles with regard to each.

People v. Evans

By Jay Wiegman, Office of the State Appellate Defender

If you find Section 122-1(f) of the Post-Conviction Hearing Act -- which requires that a person filing a successive post-conviction petition demonstrate cause for his or her failure to bring a claim in his or her initial post-conviction proceedings and show that prejudice resulted from that failure -- to be less than clear,  perhaps you can take solace in the fact that you are not alone. In People v. Evans, the Illinois Supreme Court stated that Section 122-1(f) of the Act raises many questions as to what demonstrates cause and prejudice but "answers none of them."  People v. Evans, 2013 IL 113471, ¶18. Unfortunately, the Supreme Court did not answer these questions, either.

Defendant was found guilty in 2005 of aggravated battery with a firearm and sentenced to 12 years in prison.  His conviction and sentence were affirmed on direct appeal, as was the later denial of a post-conviction petition. In a motion for leave to file a successive post-conviction petition, defendant sought to challenge the imposition of a term of mandatory supervised release (MSR), claiming that the 3-year term of MSR would increase his sentence to 15-years, exceeding the 12-year term imposed by the trial court. Defendant claimed as cause the fact that he did not know about MSR. The trial court denied his request for leave to file a successive post-conviction petition.  Evans, 2013 IL 113471, ¶5. The First District Appellate Court rejected defendant's appeal for two reasons: first, the appellate court noted that the cause and prejudice standard applicable to successive petitions is more exacting than the "gist" standard applied to initial post-conviction petitions. Evans, 2013 IL 113471, ¶7.  Second, regardless of the standard to be applied, the appellate court found that defendant's ignorance of MSR did not assert an arguable claim of cause. Evans, 2013 IL 113471, ¶7.

Defendant filed a petition for leave to appeal, which was allowed by the Supreme Court.  Before the Court, the defendant argued that, under the Post-conviction Act, the sufficiency of a cause and prejudice claim should
be evaluated in conjunction with, rather than prior to, first-stage post-conviction proceedings.  Additionally, if cause and prejudice is considered in conjunction with first-stage proceedings, then defendant argued that he need only assert an arguable claim of cause and prejudice. Evans, 2013 IL 113471, ¶11.

Justice Thomas, writing for the majority, declared that these are important arguments, but did not address them.  Evans, 2013 IL 113471, ¶12. Instead, the Supreme Court held that defendant had not established cause because ignorance of the law can never constitute cause as a matter of law. Evans, 2013 IL 113471, ¶ ¶ 12-13. Because a defendant is presumed to know about the statutory provision that includes a term of MSR in addition to a term of imprisonment, his subjective ignorance of it is not an objective factor that impedes his ability to raise a claim challenging MSR in an initial petition. Evans, 2013 IL 113471, ¶13.

The Court then took the unusual step of "invit[ing] the legislature to seize the window of opportunity that this case provides and, sometime before the next such case arrives on our docket, enact a more complete statutory framework for successive postconviction practice," one that provides "for when or precisely how a successive postconviction petitioner satisfies " the cause and prejudice requirements. Evans, 2013 IL 113471, ¶18.

In dissent, Justice Burke noted that there is a split of authority among the appellate court as to the questions posed by defendant in this appeal, and felt that the majority's appeal to the legislature "is contrary to the function of this court."  Evans, 2013 IL 113471, Burke, J., dissenting,¶26. Burke questioned whether there is truly time for the Legislature to resolve this question, noting that there are currently a number of cases on the Supreme Court's docket awaiting the resolution of Evans. Evans, 2013 IL 113471, Burke, J., dissenting,¶25.

So, as Justice Thomas asked: "is cause and prejudice evaluated prior to the first stage of postconviction proceedings, or in conjunction with the first stage of postconviction proceedings? Does a successive postconviction petitioner “demonstrate” cause and prejudice by adequately pleading it, or by actually proving it? And if by actually proving it, what provision is there for the presentation of evidence? Is cause and prejudice a one-sided question, or may the State contest a cause and prejudice claim?"  Evans, 2013 IL 113471, ¶18.  Even though defendant's petition for leave to appeal posited some of these questions, we still do not know.  Hopefully, the legislature will accept the Court's invitation and provide guidance for all of us.

People v. Eppinger

By Jay Wiegman, Office of the State Appellate Defender

Given the fundamental importance of the right to counsel, questions about whether a defendant should have been appointed counsel are customarily considered  as constitutional issues.  In People v. Eppinger,  2013 IL 114121, however, the defendant did not argue that his waiver of counsel was invalid or that, when he requested the appointment of the public defender for a third time on the morning of trial, his constitutional rights were violated.  Instead, Eppinger on appeal argued only that he was statutorily entitled to the appointment of counsel by 725 ILCS 5/115-4.1.  Thus, the question before the Illinois Supreme Court was one of statutory construction.

In Eppinger, the defendant was originally appointed a public defender, but Eppinger later requested a different attorney.  After a new attorney was appointed  2009, defendant asked to proceed pro se, a request the trial court granted after admonishing defendant.  Defendant then filed a number of motions, which caused significant delay.  When the day of his scheduled jury trial arrived, Eppinger advised the court that he no longer wanted to represent himself and requested a third appointment of counsel.  The trial court  considered defendant's request to be a delaying tactic and denied it.  When jury selection commenced, defendant refused to come out of his holding cell.  Defendant participated in proceedings once the jury was selected, making an opening statement, cross-examining the State's witnesses and making a closing argument.  At trial, each of the four victims identified defendant as the person who had robbed them and then shot one victim multiple times.  He was convicted of attempted murder, aggravated battery with a firearm, two counts of armed robbery and unlawful possession of a weapon by a felon, and was sentenced to 95 years in prison.

On appeal, defendant argued that the trial court violated section 115-4.1 (a) of the Code of Criminal Procedure by conducting voir dire in his absence without appointing counsel. The First District Appellate Court agreed with defendant and reversed his conviction and remanded for a new trial.  In doing so, the Appellate Court declined to follow People v. Reisinger, 106 Ill.App.3d 148 (1982), which held that Section 115-4.1(a) did not apply to an in-custody defendant.  Eppinger,  2013 IL 114121, ¶ 15.

The Illinois Supreme Court reversed.  Writing for the majority, Justice Theis analyzed the case as a matter of statutory construction, and therefore first considered the plain language of the statute and how caselaw had interpreted the statute.  Justice Theis initially noted that the statue was not a model of clarity, and that both the State and the defendant were able to support their arguments with caselaw. Eppinger, 2013 IL 114121, ¶ 31.  The next step, considering the consequences of construing the statute did not help: defendant's bright-line approach would allow an in-custody defendant to manipulate the system and benefit from his own delay tactics, while the State's construction would mean that "an in-custody defendant who waives counsel and then escapes would be entitled to appointment of counsel before trial in absentia, but an in-custody defendant who waives counsel and refuses to leave his holding cell would not be entitled to appointment of counsel."  Eppinger,  2013 IL 114121, ¶ 31.  The Supreme Court therefore turned to legislative history and found numerous statements from legislators who explained that the purpose of the Act was to allow trial to proceed when a defendant escaped or jumped bail. Eppinger,  2013 IL 114121, ¶ 36.  The majority stated that: "[n]othing in the debates suggests that the legislature intended to address the entirely different problems that arise where a defendant, who is in custody, essentially boycotts his or her own trial." Eppinger,  2013 IL 114121, ¶ 37.

In dissent, Justice Burke, joined by Justice Freeman, noted that "not every silence is pregnant," quoting State of Illinois, Department of Public Aid v. Schweicker, 707 F.2d 273, 277 (7th Cir. 1983).  Eppinger,  2013 IL 114121, Burke, J., dissenting,  ¶ 50. The dissent thus did not consider the legislative history to resolve the question presented in this case. The dissent noted the anomaly that the majority effectively found that the legislature intended to afford greater protections to those defendants who jump bail than those who remain in-custody.  Eppinger,  2013 IL 114121, Burke, J., dissenting,  ¶ 55.  The dissent would have applied the protections of Section 115-4.1(a) to any time a defendant is tried in absentia, whether the defendant is in custody or not.  Eppinger,  2013 IL 114121, Burke, J., dissenting,  ¶ 59.

People v. Somers

By Kerry J. Bryson, Office of the State Appellate Defender

For the second time in a year, the Court was asked to consider whether the requirement of 725 ILCS 5/113-3.1(a) – that a hearing into a defendant’s ability to pay a public defender fee be held within 90 days after the entry of the final order disposing of the case at the trial level – is mandatory or directory.  And, for the second time in a year, the Court concluded that that question was not presented by the facts of the case.

In Somers, the trial judge inquired of the defendant about his employment status and then ordered payment of a PD fee.  The parties agreed that the inquiry was inadequate under Section 113-3.1(a).  Because a hearing was held within 90 days (albeit a deficient hearing), however, it was appropriate to remand for a proper hearing regardless of how much time had passed.

Last year, in Gutierrez, 2012 IL 111590, the Court held that it was improper for the circuit clerk to impose the PD fee where it was not ordered by the court.  Because there was no indication on the record that either the State or the court was seeking the fee, the Supreme Court declined to consider the mandatory-directory question .

As it had in Gutierrez, the Court here expressed its “disappointment that defendants continue to be denied proper hearings on public defender fees.” The question of whether those hearings must be held within 90 days remains open.