Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the criminal cases People v. Clark, People v. Melongo, People v. Fernandez, People v. Easley, People v. Davis and People v. Cummings. In People v. Clark and People v. Melongo the Court unanimously held that the current eavesdropping statute is unconstitutional.

People v. Clark and People v. Melongo

By Jay Wiegman, Office of the State Appellate Defender

Today, in two separate decisions, People v. Clark, 2014 IL 115776, and
People v. Melongo, 2014 IL 114852, the Illinois Supreme Court considered
the constitutionality of several sections of the eavesdropping statute, 720
ILCS 5/14-2.  In each case, the Court unanimously held that the current
eavesdropping statute is unconstitutional because it is overly broad.

In Clark, the defendant recorded courtroom conversations involving himself,
his attorney and the presiding judge.  He also recorded a hallway
conversation with the adverse party's counsel.  Clark did not obtain
consent from any of the parties to record the conversations.  He was
indicted under the Illinois eavesdropping statute.  He filed a motion to
dismiss the indictment and argued that the section under which he was
charged violated his First Amendment rights and his right to substantive
due process.  The circuit court agreed and dismissed the indictment,
bringing the matter before the Supreme Court in the State's direct appeal
in defense of the legislation.

Writing for the Court, Chief Justice Garman noted that the Legislature
amended the eavesdropping statute in 1994 to prohibit the recording of any
conversation unless all parties consented, even if there were no
expectation of privacy.  Because this criminalizes the recording of a whole
range of conversations that cannot be deemed in any way to be private, and
because the legislation covers a broad array of wholly innocent conduct, it
is overly broad.  Having held that a substantial number of the statute's
applications are unconstitutional, the Court found it unnecessary to
address the remaining arguments.

In Melongo, which was not consolidated with Clark, but had been argued on
the same day, Chief Justice Garman, again writing for a unanimous Court,
stated that the Court's analysis was guided by its holding in Clark.
Again, the strictures of the statute were not found to serve any legitimate
interest in protecting conversational privacy, rendering the statute
unconstitutional on its face.

People v. Fernandez

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

Javier Fernandez participated in a plan to burglarize vehicles in a church
parking lot.  Fernandez drove his co-defendant, Gonzalez, to the scene and
waited for Gonzalez in his vehicle.  A police officer happened to be in the
area and interrupted Gonzalez in the act of burglarizing a car. Gonzalez
ran to Fernandez’s vehicle, and as they drove off, Gonzalez pulled a gun
and fired at the officer.

Fernandez challenged his convictions by accountability of aggravated
discharge of a firearm in the direction of a peace officer, arguing that he
did not even know that Gonzalez had a gun and thus lacked the specific
intent to aid that particular offense.

In a unanimous opinion, the Supreme Court rejected Fernandez’s position and
affirmed the validity of the common criminal design rule.  The Court
clarified that accountability may be proved either by shared intent (where
the defendant shared the intent of the principal) or by common criminal
design (where the defendant can be held accountable for a crime other than
the one planned or intended so long as it was committed in furtherance of
the crime that was planned or intended).

The Court warned against conflating these two accountability schemes, a
problem which led to the decision in People v. Phillips, 2012 IL App (1st)
101923, on which the defendant heavily relied here.  In Phillips, the court
relied on two cases where the defendants were not accountable because they
had no idea that any crime was going to be committed, not just that they
did not know their co-defendants were armed (People v. Dennis, 181 Ill. 2d
87 (1998); People v. Taylor, 186 Ill. 2d 439 (1999)).   Phillips
misconstrued those decisions as establishing a blanket prohibition on
accountability for a crime the defendant did not know would occur and thus
could not have specifically intended to further.  Phillips was overruled by
the Court.

The Fernandez  decision is not a departure from existing law, but rather a
clarification of accountability and common criminal design principles.

People v. Easley

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

Christopher Easley was convicted of unlawful use of a weapon by a felon and
sentenced to nine years of imprisonment.  Under the Criminal Code, a first
conviction of UUWF is a Class 3 felony, and a second or subsequent
conviction is a Class 2 felony.  Easley had a prior conviction of UUWF.

At issue was whether the State was required to provide notice under Section
111-3(c) of the Code of Criminal Procedure of its intent to seek an
enhanced sentence.  The Court concluded that notice under 111-3(c) was not
required because the prior conviction was an element of the offense.

The indictment alleged that Easly was guilty of UUWF in that he was
previously convicted of UUWF. The Court rejected Easley’s argument that he
was convicted of a Class 3 offense but given a Class 2 sentence.  The
existence of the prior UUWF conviction was included as an element of the
charged offense and the UUWF statue clearly provided that the crime was a
Class 2 offense.  The Class 2 sentence was the only one allowed by statute
and was not an enhancement.

Easley also alleged that he was subject to improper double enhancement
where the prior UUWF conviction was used to prove an element of the offense
and to elevate the offense from a Class 3 to a Class 2 felony.  That
contention was rejected on the basis that the prior conviction was used
only as an element of the offense, albeit an element which rendered the
offense a Class 2 felony, so there was no enhancement.

People v. Davis

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

In 1993, Adolfo Davis was sentenced to natural life imprisonment for the
murders of two individuals. The sentence was mandatory under 730 ILCS
5/5-8-1(a)(1)(c) (West 1992).  His convictions and sentences were affirmed
on direct appeal.  Subsequently, Davis filed various collateral
proceedings, none of which resulted in relief.

In 2011, Davis filed a motion for leave to file a successive
post-conviction petition, arguing in part that his life sentence violated
the eighth amendment under Graham v. Florida, 560 U.S. 48 (2010).  Leave to
file was denied in August 2011, and he appealed.  While on appeal, Miller
v. Alabama, 132 S. Ct. 2455 (2012), was decided, holding that mandatory
life without parole for persons under the age of 18 at the time of their
crimes violates the eighth amendment.  The appellate court concluded that
Miller applied retroactively to Davis’s case.

The Supreme Court affirmed the holding that Miller applies retroactively.
The Court concluded that Miller stated a new substantive rule, placing it
outside of the traditional Teague retroactivity analysis.  The Court went
on to hold that Miller’s new substantive rule constituted “cause” for
filing a successive post-conviction petition and “prejudice” because it
retroactively applied to Davis’s sentencing hearing.

Davis’s mandatory natural life sentence was reversed, and the case was
remanded for a new sentencing hearing.  The Court cautioned that Davis
could still be sentenced to natural life on remand, so long as such a
sentence was imposed at the trial court’s discretion rather than because it
was mandatory.

The Court declined Davis’s request to declare the entire statutory
sentencing scheme facially unconstitutional because the statute could be
validly applied to adults.

Davis is significant to any individual currently serving a mandatory life
sentence for a crime committed while the individual was under the age of
18.  Davis opens the door for those individuals to obtain resentencing by
filing a successive post-conviction petition based on Miller.

People v. Cummings

By Jay Wiegman, Office of the State Appellate Defender

In People v. Cummings, 2014 IL 115769, the Illinois Supreme Court
considered the narrow question of whether a police officer violated the
Fourth Amendment when, after stopping a van solely because it was
registered to a woman for whom there was an outstanding arrest warrant, he
asked the male driver for a driver's license.  In a 5-2 decision, the
Supreme Court determined that, while the officer initially had reasonable
suspicion that the driver was subject to seizure, that suspicion
disappeared when he saw that the driver was not a woman.  Writing for the
majority, Justice Theis stated that the request for identification of the
driver - who, the officer knew at that point could not be the person for
whom a warrant had issued -- did not pass constitutional muster because it
was not tethered to, and justified by, the reason for the stop.  Thus, the
Supreme Court upheld both the trial court, which granted defendant's motion
to suppress, and the appellate court, which affirmed the circuit court's
decision.

Ordinarily, the intent of these reports is to note the practical
implications of Supreme Court decisions for daily practitioners.  In this
case, as noted by Chief Justice Garman (with whom Justice Thomas joined in
dissent), the greater complications in interpretation are now faced by law
enforcement officers, who are seemingly prohibited from following standard
policy of obtaining a driver's license upon stopping a vehicle once they
determine that the reason for the stop has disappeared.  While officers
generally strive to exercise unquestioned command in all traffic stops, law
enforcement officials should address how officers on the street approach
civilians once a registration review reveals that the stop is no longer
necessary.