Quick takes from Thursday, Feb. 3, Illinois Supreme Court opinions

Our panel of leading appellate attorneys review today's opinions in the civil case Carr v. Gateway, Inc. and criminal cases People v. Skryd, People v. Beauchamp and People v. Manning.

CIVIL

Carr v. Gateway, Inc.

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC The Illinois Supreme Court has unanimously ruled that a consumer can proceed in court, rather than arbitration, with his complaint that his new computer processor was not improved.  Alleging that he was misled by claims that Gateway’s new processor was faster than its predecessor, the plaintiff sued Gateway, Inc., for statutory consumer fraud.  Gateway moved to compel arbitration based on a written arbitration agreement included with the product. Switching gears from the circuit court’s analysis of whether the arbitration clause bound the parties, the supreme court addressed whether Section 5 of the Federal Arbitration Act required the circuit court to name a replacement for the National Arbitration Forum (“NAF”), the entity designated in the agreement, when the NAF stopped accepting consumer arbitrations.  The court noted the strong federal public policy favoring arbitration.  Section 5 provides that a party to an arbitration agreement may ask a court to name a substitute arbitrator if “there shall be a lapse in the naming of an arbitrator . . . , or in filling a vacancy . . . .”  9 U.S.C. § 5 (2006).  Following federal case law, the supreme court held that a court could name a substitute arbitrator only if the choice of arbitral forum is an ancillary matter and “not an integral part of the agreement to arbitrate.” Here, the supreme court ruled, the designation was integral to the arbitration clause.  Two provisions of the agreement -- drafted by Gateway -- led the court to this conclusion:  the agreement designated that arbitration should proceed under NAF’s rules and called for the imposition of monetary penalties if a party filed a claim with any other arbitral service.  The supreme court found the penalty provision particularly significant. Case summary

CRIMINAL

People v. Skryd

By Kerry J. Bryson, Office of the State Appellate Defender Twelve years after entering a guilty plea to a misdemeanor charge of possession of cannabis, the defendant filed a motion to withdraw that plea. The motion was prompted by the prior conviction’s negative impact on defendant’s efforts at obtaining citizenship. The State noted that the motion was untimely and asked that it be dismissed. Instead, the circuit court granted the motion. The State sought reconsideration, and the court upheld its ruling. The State filed a petition for writ of mandamus, arguing that the circuit court lacked jurisdiction because the motion was filed more than 30 days after the plea. The defendant argued that because he had not been admonished of his appeal rights, he could file a late motion under the “admonition exception.” The Court took the opportunity to clarify that the “admonition exception” applies only where the defendant has filed a notice of appeal within 30 days but has failed to file an appropriate, timely post-plea motion. In that circumstance, the appellate court can remand for proper admonishments and the filing of a motion. The “admonition exception” cannot restore jurisdiction to the circuit court after 30 days from the entry of judgment. Thus, the “extraordinary remedy” of mandamus was granted here. The circuit court judge was directed to rescind his order granting the defendant’s motion to withdraw plea and to enter an order dismissing the defendant’s post-plea motion. Case summary

People v. Beauchamp

By Jay Wiegman, Office of the State Appellate Defender Burglary is committed when a person, without authority, knowingly enters a building or vehicle, with intent to commit therein a felony or theft. Usually, the question in a burglary case is whether the defendant entered with the requisite intent, because the State can rarely prove intent by direct evidence. In People v. Beauchamp, however, the Illinois Supreme Court debated whether the defendants had entered, as they only made it so far as to remove the hatchback window of a car. In January of 2007, a woman parked her hatchback SUV in a Metra parking lot in Chicago. She saw a white car enter the lot behind her. After walking to a pay box to deposit her parking fee, she returned to her car. She activated the remote, but it did not respond as she expected. Seeing a man standing two feet from the rear view mirror of her car, she ran to a nearby fire station and spoke with a policeman. A police officer responded to the scene, and blocked the white car, which was parked next to the woman's SUV. In the front seat of the white car, the officer saw two men: Beauchamp and Jones; in the rear seat, the officer saw a four-foot by three-foot window. Looking toward the rear hatchback window of the woman's SUV, the officer saw that the rear hatchback window was missing. One hydraulic arm, that had held the window in place, was on the ground, and the other was dangling from the car. The "little button on the back of the car," that when pushed caused the hydraulic arms to lift the window, had been "punched out." Beauchamp and Jones were arrested and charged with burglary. During their joint bench trial, defendants moved for a directed finding of not guilty, and argued that the State failed to prove the element of entry, because all the defendants had to do was press the button on the back of the car. The trial court denied the motion, finding that a window has "both an inside and an outside," and that, as a result, one must enter a vehicle in order to remove the window. The trial court also concluded that the evidence showed that the hydraulic arms that opened the window were on the inside, and that punching out the rear lock constituted an entry, regardless of how the window was removed. Defendants were convicted of burglary. The First District Appellate Court reversed, with one justice dissenting. The Appellate Court concluded that the State failed to prove that defendants "broke the plane" that enclosed the protected space of the vehicle. The Appellate Court disagreed with the trial court that the evidence established that the hydraulic arms were attached to the interior of the vehicle, and rejected the notion that punching the door lock constituted an entry into the vehicle. The Appellate Court reduced the convictions to theft. The Supreme Court reversed the Appellate Court and reinstated the burglary convictions. At the outset of the analysis, Justice Theis, writing for the majority, noted that the burglary statute does not require intrusion by a person’s entire body, but that an intrusion by part of the body into the protected enclosure is sufficient, even if the intrusion is slight. In other words, an entry may be accomplished simply by crossing the planes that enclose the protected space. Based on the evidence, the Supreme Court found a reasonable inference that when the rear door lock was punched out, defendants were able to open the rear window by either pressing the button or prying it open, and that once the window was open, the defendants could grasp the window from both sides. Although the Court maintained that touching the inside of the window does not, in and of itself, constitute an entry, the Court found that other evidence proved that defendants broke the close of the vehicle. The Court agreed with the dissenting justice in the Appellate Court, that it was "a physical impossibility to remove the hatchback window without gaining at least minimal access to the protected interior, or the close, of the vehicle." Justice Burke, joined by Justice Freeman, dissented. The dissent noted that the window was "hinged at the roof line and opens out and away from the SUV." Thus the defendants did not enter the interior of the car by grabbing hold of the open window. The substantial size of the window -- which suggested to the majority that removal of the window required so much maneuvering and force that it was "a physical impossibility to remove the hatchback window without gaining at least minimal access to the protected interior, or the close of the vehicle -- suggested to the dissent that the plane could not have been broken by the defendants, as they needed both hands to hold onto the window. The dissent believed that a finding that entry had been proved was speculative. At first blush, the import of Beauchamp might appear to be limited by its unusual facts. On further reflection, however, it appears that Beauchamp has the potential to expand the definition of entry. Given that opening the hinged window allowed the defendants to break the plane in this case, it seems likely that a defendant who opens outwardly a hinged house window, or a defendant who opens a screen door where the main door is open, or a defendant who opens a screen door and then smashes open the main door, will have committed an entry. In other words, Beauchamp may have opened the door to an expanded definition of "entry." Case summary

People v. Manning

By Jay Wiegman, Office of the State Appellate Defender In People v. Manning, defendant, a registered sex offender, was arrested after dealing cocaine out of a Bensenville duplex. Following his arrest, officers searched the duplex and found a large quantity of cocaine, and some identification that indicated the duplex was defendant's residence. Other documents showed that defendant lived in Maywood. Part of Manning's defense was that he had previously lived in the Bensenville duplex (which remained home to his girlfriend and her children), but that after he had lived there for a time he learned that, because it was within 500 feet of a park, he was not allowed to live there because he was a registered sex offender. He had therefore moved to Maywood eight months earlier. As a result, he argued that he did not possess the cocaine found in Bensenville. Part of the risk of this defense was that jurors would know that defendant was a sex-offender. Counsel thus inquired, during voir dire, of possible biases against sex-offenders held by prospective jurors. One juror, A.C., stated that he could not be fair to a sex offender, as he believed they should be "locked up for life." Trial counsel, who at that time had two peremptory objections left (and needed to impanel two more jurors), did not move to exclude this juror. After his conviction, defendant appealed, On appeal, defendant argued, among other things, that his trial counsel was ineffective for failing to excuse A.C. from the venire due to his statements that he could not be fair to defendant because of his sex offender status. The Appellate Court affirmed. Relying on People v. Metcalfe, 202 Ill. 2d 544, 562 (2002), the Appellate Court concluded that defendant failed to demonstrate prejudice because the evidence against him was overwhelming. In addition, the First District Appellate Court rejected defendant’s argument that prejudice should be presumed where a biased juror sat on his jury. In his petition for leave to appeal, as characterized by the majority in Manning, defendant in this case argued that this court should "reconsider" its decision in Metcalfe, because juror bias is structural error, and since Metcalfe was decided, other courts have held that a biased juror is inherently prejudicial. Justice Garman, writing for a three-person majority, said that the voir dire of the challenged juror should be viewed as a whole. The defense attorney’s choice not to remove the challenged juror was not objectively unreasonable and should be considered to have been a matter of trial strategy, to which courts defer. The majority opinion first addresses Metcalfe, in which the defendant appealed his conviction on the ground that he was denied his right to a fair trial when one of the members of his jury indicated during voir dire that she could not be fair and impartial. The Appellate Court in Metcalfe found that the juror was biased against the defendant and held that when a prospective juror indicates bias or prejudice and counsel does not move to excuse the prospective juror, the trial court has a sua sponte duty to do so. The Appellate Court in Metcalfe also found that prejudice should be presumed due to the fact that an actually biased juror served on Metcalfe's jury, invoking the United States Supreme Court’s decision in United States v. Cronic, 466 U.S. 648 (1984). The Supreme Court in Metaclfe, however, found Cronic to be inapposite, as it found that Cronic requires an attorney's failure to be complete. The Supreme Court in this case found defendant's request to reconsider Metcalfe tantamount to a demand that Metcalfe be reversed and an end-run around Cronic, as prejudice would be presumed, once it was found that counsel was deficient for not striking a biased juror, because the defendant was deprived of an impartial jury and that makes the trial fundamentally unfair. The Court refused to reverse the holding in Metcalfe. Thus, while Strickland allows reviewing courts to jump to its second prong, an analysis of prejudice, without even considering whether counsel was ineffective, the instant Court first turned to a determination of whether counsel had been ineffective for failing to challenge a juror who termed himself biased. Ultimately, the Court concluded that the context of the voir dire proceedings made it possible A.C. was not unequivocally biased, and that there were other factors that counsel may have taken into consideration. Essentially, the Court considered jury selection to be part of trial strategy, which is generally not subject to challenge under Strickland. In a special concurrence, Chief Justice Kilbride disagreed with the majority's reliance on the first Strickland prong, which addressed only the objective reasonableness of trial counsel’s performance. The Chief Justice would have preferred that the prejudice prong be addressed, in large part, because of the "pressing need in both our appellate court and the appellate bar for guidance on the proper standard of review of the Strickland prejudice prong." That discussion, however, is rendered mere dicta because the prejudice prong was not addressed. Justice Kilbride also felt that reliance on the prejudice prong would strengthen the Court's decision, because its greatest weakness was the difficulty in explaining "fully how accepting a potentially biased juror could be a 'reasonable trial strategy.'" Justice Karmeier, in a separate special concurrence found the majority's discussion of prejudice to be unnecessary. Justice Freeman dissented, with Justice Burke joining. The dissenting justices agreed with Justice Karmeier that the "lengthy initial discussion of the proper standard of review for the prejudice prong appears to be unnecessary. The dissent determined that, "notwithstanding the general deference given to trial counsel’s strategic decisions, courts will find deficient performance under Strickland if an impaneled juror’s honest responses to questions on voir dire would have given rise to a valid challenge for cause." The dissent would have held that the failure to strike A.C. constituted deficient performance under Strickland. Having made that determination, the dissent, relying in part on the Illinois Supreme Court's recent decisions in People v. Thompson, No. 109033, slip op. at 9 (Oct. 21, 2010),and People v. Glasper, 234 Ill. 2d 173, 200-01 (2009), would have held that a trial before a biased juror constitutes structural error. The Chief Justice's special concurrence both highlights the need for clarity and, ultimately, demonstrates how it was not provided here. While appeal in Manning was, by all accounts, taken so as to clarify whether prejudice is created by the selection of a biased juror, the issue was not addressed. Given that the holding is to be interpreted as the position taken by the justices who concurred in the judgment on the narrowest grounds where no single position commands a concurrence of a majority of the Court's members, the holding here seems to be that defendant was not deprived the effective assistance of counsel, even though counsel failed to challenge a juror who admitted he was likely to be biased, because the Court will not challenge a strategic decision made by counsel. Reconsideration of Metcalfe, in light of Thompson and Glasper might have provided some guidance for trial counsel, as well as for the appellate bar and the appellate courts. As it stands, assuming that the juror in Manning cannot be termed "unequivocally" biased despite his expressed belief that sex offenders should be locked up for life, the only clear guidance trial counsel can take from this case is that selecting a juror who is likely biased will not likely render counsel ineffective. Case summary