Quick Takes on Illinois Supreme Court Opinions Issued Thursday, November 21, 2024
Leading appellate attorneys review the ten Illinois Supreme Court opinions handed down Thursday, November 21.
People v. Smollett, 2024 IL 130431
By Kerry J. Bryson, Office of the State Appellate Defender
In 2019, Jussie Smollett was charged with felony disorderly conduct for allegedly making a false police report claiming to have been the victim of a hate crime. Within a month of that charge being filed, an assistant state’s attorney appeared at a hearing in the case and represented to the judge that the State was moving to nol-pros the charges, “[a]fter reviewing the facts and circumstances of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond.” The prosecutor went on to state, “We believe this outcome is a just disposition and appropriate resolution to this case.” The State’s motion to nol-pros was granted, and Smollett’s $10,000 bond was ordered released to the City of Chicago.
Subsequently, a special prosecutor was appointed when questions were raised about the resolution of the charges and State’s Attorney Kim Foxx’s appointment of her first assistant upon her own recusal from the case. The special prosecutor conducted an independent investigation, and a special grand jury re-indicted Smollett on six counts of disorderly conduct based on the same conduct as the original, nol-prossed counts. The special prosecutor’s report had concluded that further prosecution of Smollett was in the interests of justice because he made numerous false statements to the police leading to the expenditure of significant resources by the Chicago Police Department, that Smollett had received more favorable treatment than similar defendants, and that the originally-filed charges were strong yet Smollett had obtained a dismissal with minimal consequences and without having to admit guilt.
Smollett sought dismissal of the new indictment on the basis of double jeopardy, the unauthorized appointment of the special prosecutor, and the fact that he previously had reached a nonprosecution agreement with the State’s Attorney’s Office which had been fully performed when he forfeited his monetary bond and performed community service and the State nol-prossed the original charges in open court. The trial court denied the motion to dismiss, and Smollett was tried and convicted.
In the appellate court, Smollett raised a variety of challenges, but the appellate court rejected all of them and affirmed. Today, the Supreme Court reversed outright, finding that Smollett had entered into a nonprosecution agreement and had fully performed his part of that agreement, thereby precluding further prosecution. In reaching this conclusion, the Court acknowledged that this case had “generated significant public interest and that many people were dissatisfied with the resolution of the original case and believed it to be unjust.” The fact that the original disposition was unpopular and the subject of public outcry, however, did not relieve the State of its obligation to honor the deal it made.
The Court rejected out of hand the notion that Smollett had simply voluntarily forfeited his bond without anticipation of any benefit in exchange. There was no evidence to support such a finding, and by all accounts everyone involved contemplated that the initial proceedings involved an agreement between Smollett and the State. The terms of that agreement were a complete dismissal of the original felony indictment in exchange for the bond forfeiture and community service and with no requirement that Smollett plead guilty or admit wrongdoing. And, the fact that the dismissal was accomplished via a nolle prosequi rather than a dismissal with prejudice was of no consequence. While there is a body of law holding that a pre-trial nolle prosequi is not a final disposition and generally will not bar a subsequent prosecution for the same offense, that doctrine is not absolute. The State may still be barred from re-prosecution where there is a showing of bad faith, harassment, or fundamental unfairness. And it would be fundamentally unfair to allow the State to renege on the deal with Smollett simply because it now regretted the deal it made. The Supreme Court reversed the decisions of the lower courts and remanded the matter with directions for the circuit court to enter a judgment of dismissal.
Glorioso v. Sun-Times Media Holdings, 2024 IL 130137
By Amelia Buragas, Illinois State University
On February 7, 2020, the Chicago Sun-Times published an article headlined “President’s Chicago tax appeal on Trump Tower is under investigation.” The article was the first in a series of articles, written by reporter Tim Novak, that reported on the activities of the Property Tax Appeal Board’s review of an appeal relating to the Chicago property. The articles reported that the Pritzker administration was investigating allegations that the executive director and general counsel of PTAB, Mauro Glorioso, pressured the agency’s staff to improperly grant a real estate reduction based on “political loyalty.”
In response to these articles, Glorioso filed a multi-count complaint alleging defamation per quod, defamation per se, false light invasion of privacy, and intentional infliction of emotional distress. After an initial motion to dismiss that is not related to this appeal, defendants sought dismissal of the lawsuit under the Citizen Participation Act, 735 ILCS 110/15, which is also known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Generally, SLAPPs are lawsuits intended to prevent citizens from exercising their political rights or to punish those who have done so by using the “threat of money damages or the prospect of defending against the suits to silence citizen participation.”
The trial court denied the motion to dismiss, and the appellate court granted the defendants’ petition to appeal under SCR 306(a)(9). The First District, with one justice dissenting, affirmed, finding that the circuit court properly applied the test established by the Illinois Supreme Court in Sandholm v. Kuecker, 2012 IL 111443, when it determined that the plaintiff’s lawsuit was not a SLAPP and was not subject to dismissal under the Act. Defendants then filed a petition for leave to appeal, which the Illinois Supreme Court allowed. The court also allowed the Reporters Committee for Freedom of the Press and various other media organizations to file a joint amicus brief in support of the defendants.
In a unanimous opinion written by Justice Overstreet, the supreme court explained that following Sandholm, the appellate courts have consistently employed a three-part test to determine whether a lawsuit is subject to dismissal pursuant to the Act. Under this test, the moving party has the burden to show that 1) the movant’s acts were in furtherance of its rights to petition, speak, associate, or otherwise participate in government to obtain favorable government action, and 2) that plaintiff’s claims area solely based on, related to, or in response to the movant’s exercise of these rights. If the defendant fails to meet their burden on either of the first two elements of the Sandholm test, then the lawsuit is not subject to dismissal as a SLAPP under the Act. If the movant meets its burden under the first two prongs, then the burden shifts to the plaintiff who must prove by clear and convincing evidence that the movant’s acts were not genuinely aimed at procuring favorable government action.
The supreme court explained that under the principles of stare decisis it was bound to follow Sandholm absent “special justification, good cause, or compelling reasons” and the court found no such reasons here. The court also noted that the legislature did not amend the Act in response to Sandholmand so “it will be presumed that it has acquiesced in the court’s statement of legislative intent.” With the Sandholm test left undisturbed, the supreme court moved on to analyze the defendant’s motion to dismiss, observing that few cases interpreting the Act have involved motions to dismiss brought by media defendants and that the Act itself does not contain any mention of the news media or the freedom of the press.
The court started its analysis by clarifying the legal standard used for the first prong. The court explained that uses an objective standard that asks whether an objective person would find the acts were reasonably calculated to elicit a favorable government action or outcome. Applying this analytical framework to the facts of the case, the supreme court concluded that the defendants could not meet their burden under the first prong of the Sandholm test. The court explained that while the articles published by the defendants were investigatory reports that uncovered “questionable activity by government acts,” they contained a flaw that was fatal to defendants’ motion. The articles contained “no language specifically requesting a response or reaction from a government entity or employee,” nor did they request that the public take any action. Thus, the court explained that an “objective reader” would conclude that the purpose of the articles was to report the news and not to elicit a particular action on the part of the government or the electorate. Thus, because the defendants’ articles were not in furtherance of government participation, the defendant failed to meet its burden under the first prong of the Sandholm test and the plaintiff’s claims were not barred by the Act. Because it resolved the issue at the first stage of the analysis, the court left for another day a question of whether the second prong of the Sandholm test requires defendants to show that the lawsuit is “meritless, retaliatory, or both.”
The supreme court concluded by cautioning that the outcome of this case should not be read to “minimize or understate the importance of the press and other news media in our democracy.” Rather, the court explained that it was simply holding that the Act specifically protects government participation and, as a result, “does not encompass all media reports on matters of public concern.” The court noted that the law is “replete with privileges and other protections” intended to safeguard the freedom of the press and that the outcome of this case does not minimize those protections.
Justice Rochford took no part in the decision.
Marathon Petroleum Co. v. Cook County Dep't of Revenue, 2024 IL 129562
By Amanda J. Hamilton, Konicek & Dillon P.C.
In a unanimous opinion written by Justice O’Brien, the Illinois Supreme Court in Marathon Petroleum Co. LP v. Cook County Department of Revenue addressed “whether monetary settlements of contracts for the sale of motor fuel (that do not involve the movement of fuel or connection to a retail sale) fall within the definition of ‘sale’ as set forth in [Cook County’s] Fuel Tax Ordinance.” By way of background, Cook County’s Fuel Tax Ordinance imposes a sales tax on the retail sale of gasoline and diesel fuel. However, the collection of the tax is not done at the point of the retail sale; rather, the obligation to collect the tax falls upon the distributors of the gasoline and fuel products.
Following an audit of Marathon Petroleum Company LP, the Cook County Department of Revenue determined that Marathon failed to collect tax on certain transactions and assessed tax, interest, and penalties against it. Marathon denied that it failed to properly collect and pay taxes, arguing that certain “book transfers” were not taxable distributor-to-distributor sales for purposes of the Tax Ordinance. The Department disagreed, instead finding that any “book transfers” to unregistered distributors where the “ship from” and “ship to” fields stated Chicago were taxable. The Department assessed more than $10 million in tax, interest, and penalties against Marathon. In response, Marathon stated that the alleged “sales” to unregistered distributors were in fact cash settlements of forward contracts which did not result in a change of ownership or movement of fuel and further, that the “Chicago” reference in the books referred to a region and not necessarily to a location within the City of Chicago.
The matter proceeded before an Administrative Law Judge who conducted a hearing and issued a decision upholding the Department’s assessments in their entirety. Marathon sought judicial review, and the circuit court reversed and vacated the ALJ’s decision. The Department then appealed, and the First District Appellate Court reversed the circuit court’s decision and affirmed in part and reversed in part the ALJ’s decision. Marathon filed a petition for leave to appeal to the Illinois Supreme Court, which was then granted. Multiple amicus curiae briefs were filed in support of Marathon’s position.
In determining the appropriate standard of review, the Illinois Supreme Court noted that an ALJ’s findings and conclusions as to questions of fact are reviewed on a “manifest weight of the evidence” standard, while interpretations as to the meaning of a statute are reviewed de novo. When an agency’s decision on the legal effect of a given set of facts is a mixed question of law and fact, it is reviewed under the clearly erroneous standard. In this case, the Illinois Supreme Court stated: “The issue here revolves around the ALJ’s findings regarding Marathon’s evidence and whether the ALJ properly found that Marathon presented insufficient evidence to rebut the Department’s prima facie case of taxability. Thus, we begin by addressing the Department’s prima facie case and the ALJ’s conclusion that Marathon failed to rebut the Department’s prima facie case due to some evidentiary shortcomings. Under the standards as stated above, factual findings will be reviewed under the manifest weight of the evidence standard, while the ALJ’s ultimate conclusion will only be reversed if clearly erroneous.”
In its analysis, the Illinois Supreme Court held that Marathon had waived any argument that the Department had failed to establish a prima facie case of taxability and further, that the ALJ’s implicit conclusion regarding this prima facie case was not clearly erroneous. Marathon’s documentation, where contracts listed a purchaser not registered as a distributor in Cook County, and invoice number, a fuel amount, and a destination of “Chicago,” were sufficient to establish the Department’s prima facie case.
However, the Illinois Supreme Court disagreed with the ALJ once the burden shifted to Marathon to overcome the prima facie case and show that the transactions were not subject to the Fuel Tax Ordinance. The Illinois Supreme Court discussed the evidence Marathon presented to the ALJ in detail and held that Marathon had, in fact, presented sufficient evidence that the cash settlements were financial exercises and did not transfer any ownership of fuel, such that rebutted the Department’s prima facie presumption of taxability. Specifically, Marathon had presented evidence and testimony from its motor fuel tax specialist who testified regarding their records and business practices, who explained that the “book transfers” on the documents were book out transactions, where a contract was financially settled without any product being physically moved or transferred. Further, when a product was moved, a meter ticket is generated and a different notation was listed on Marathon’s records, noting a carrier name, volume of fuel, and specific location. Marathon had also presented evidence from a commercial analyst manager who further explained Marathon’s logistical processes, the forward contract process, and how book outs are used in the fuel industry. Last, Marathon presented evidence from a finance and economics expert, who explained book out transactions as settling forward contracts, which do not involve the actual delivery of the product.
Based on this finding, the Illinois Supreme Court explained that the burden then shifts back to the Department to prove its case of taxability by a preponderance of competent evidence. However, because the ALJ’s analysis stopped after finding that Marathon had failed to rebut the prima facie case, the Illinois Supreme Court remanded the matter to the ALJ to make findings of fact and reach the determination of whether the Department has proven its case of taxability. The Illinois Supreme Court noted, however that: “We are specifically finding that the ALJ’s determination, based upon the evidence submitted at the evidentiary hearing, was incomplete and are remanding solely for a completion of that process. There is no basis for the ALJ to begin the hearing process anew or to accept additional evidence.”
Habdab, LLC v. County of Lake, 2024 IL 130323
By Amanda J. Hamilton, Konicek & Dillon P.C.
Justice Theis delivered a unanimous opinion from the Court regarding a developer’s challenge to fees imposed on it pursuant to an intergovernmental agreement, finding that the intergovernmental agreement did not violate the Road Impact Fee Law and likewise did not violate the unconstitutional conditions doctrine.
On December 1, 2009, Lake County and three municipalities (the villages of Mundelein, Grayslake, and Libertyville) entered into an intergovernmental agreement called the “Central Lake County Transportation Improvement Intergovernmental Agreement” (“IGA”) to establish construction funding for future highway improvements in the central Lake County Area. Specifically, the agreement provided that the County would agree to design and construct road improvements in exchange for a portion of the construction costs being reimbursed by fees collected from developers within the area upon the occurrence of a “triggering factor.” Under the IGA, annexation was one of the “triggering factors.” The parties all agreed that the developers of any future commercial or residential developments would be collectively assessed 50% of the construction costs of the road improvements while the County would bear the costs of the remaining 50%. The parties established six “Highway Improvement Areas” and created a schedule of fees for each subarea. The IGA further provided that, upon annexation of any unincorporated territory within a Highway Improvement Area, the responsible village would require an annexation agreement which would include the payment of fees in accordance with the IGA before any “final development approval” would be granted.
Subsequently, Plaintiff Habdab, LLC and the Village of Mundelein entered into three annexation agreements located within a Highway Improvement Area. Plaintiff filed a declaratory judgment action against the County and against the Village, arguing that the IGA fees did not meet the requirements set forth in the Impact Fee Law and therefore it was not required to pay any IGA fees relating to its annexation agreements. The plaintiff also argued that the IGA fees were unenforceable under the unconstitutional conditions doctrine, as it coerced landowners to pay the fees as a condition of receiving certain land use benefits from the Village.
The circuit court granted summary judgment in favor of the County, and the Second District Appellate Court affirmed, holding that the IGA fees did not constitute “road improvement impact fees” under the Impact Fee Law and further holding that the doctrine of unconstitutional conditions did not apply because there was an “essential nexus between the condition burdening rights and a legitimate state interest” and that there was “rough proportionality between the burden on the individual and harm the government seeks to remedy through the condition.”
In affirming the Appellate Court’s decision, the Illinois Supreme Court stated: “The IGA fees do not constitute ‘road improvement impact fees’ under the plain language of the Impact Fee Law. The IGA provides that payment of the highway improvement fees is a condition of annexation into the Village, while as noted above the Impact Fee Law defines ‘road improvement impact fees’ as fees imposed ‘as a condition to the issuance of a building permit or a certificate of occupancy in connection with a new development.’” The Court further noted that the Municipal Code specifically allows municipalities to enter into annexation agreements with owners of land in unincorporated territory and further permits those municipalities to have agreements providing for contributions of either land or monies to that municipality or government entity having jurisdiction over that land. The Supreme Court held that the Impact Fee Law’s specific statutory language was limited to “only fees levied as a condition to the issuance of either a building permit or certificate of occupancy,” such that the fees imposed on the plaintiff vis-à-vis the annexation agreements did not violate the Impact Fee Law.
The Illinois Supreme Court likewise rejected the plaintiff’s argument that the fees violated the unconstitutional conditions doctrine, agreeing that there was an “essential nexus” between the condition burdening rights and a legitimate state interest, with the need to minimize traffic congestion being a legitimate state interest. Likewise, the Illinois Supreme Court held that “no precise mathematical calculation is required under the rough proportionality standard,” and that the schedule of fees for each subarea of the six Highway Improvement Areas was sufficiently individualized such that the second factor was met and the unconstitutional conditions doctrine was inapplicable.
People v. Sloan, 2024 IL 129676
By Kerry J. Bryson, Office of the State Appellate Defender
Matthew Sloan was charged with murder and other offenses arising out of his shooting and killing his brother, David. Matthew asserted that he acted in self-defense or, at a minimum, that he should only be convicted of second-degree murder on the basis of imperfect self-defense. The evidence at trial tended to establish that Matthew and David had been drinking and shooting guns, first at Matthew’s house and then at their cousin’s. They subsequently became engaged in a verbal disagreement after David’s wife Sara picked them up and was driving Matthew home. The fight turned physical when they arrived at Matthew’s residence. Sara broke up the fight, and Matthew then went into the house. David and Sara followed, with Matthew ultimately shooting and killing David.
Matthew’s testimony was that he did not know it was David in the vehicle when Sara drove him home, and that he did not know it was David who had fought with him and followed him into the house when they got home. Matthew said he thought it was Sara’s brother, who he had never met, and that he was concerned about the fact the man who followed him into the house had access to the guns that were in Sara’s car. Matthew acknowledged that he was drunk, which affected his memory. He testified that he shot the man, who he later realized was his brother, in self-defense.
The jury was instructed on first degree murder, second degree murder, and self defense. Matthew also requested that the jury be given an instruction on the duty to retreat, IPI Criminal 4th. No. 24-25.09X, but his request was denied on the basis that there was no evidence as to who was the initial aggressor. Matthew was convicted of first degree murder and sentenced to 80 years of imprisonment (50 years plus a 30-year firearm enhancement).
On appeal, Matthew argued that he was denied a fair trial when the court denied his request for the duty-to-retreat instruction. The appellate court agreed, finding that the trial court had “impermissibly resolved a factual matter that the jury should have decided,” specifically the question of who was the initial aggressor. The Supreme Court disagreed.
It is well established that a party is entitled to a jury instruction where there is some evidence to support it. The converse, of course, is that an instruction not based on the evidence should not be given. Likewise, a court should refuse to give any instruction that would have the tendency to confuse the jury. A judge’s decision denying a requested instruction is reviewed for an abuse of discretion. Error will be found only where the decision is so arbitrary, fanciful, or unreasonable that no reasonable person would agree with it.
The duty-to-retreat instruction defendant requested provides, “A person who has not initially provoked the use of force against himself has not duty to attempt to escape the danger before using force against the aggressor.” The Supreme Court concluded that the appellate court erred when it found that the trial court had improperly resolved the factual issue as to who was the initial aggressor in denying the instruction. Instead, the trial court merely found that it was unclear whether Matthew or David was the initial aggressor. Sara said she did not see who threw the first punch during the physical fight, and Matthew testified that they were engaged in “mutual combat.” Accordingly, the evidence did not support the conclusion that David was the initial aggressor, either in the driveway or when he followed Matthew into the house.
The Supreme Court also rejected Matthew’s assertion that the instruction was necessary to counter the State’s suggestion that he could have done more to avoid the danger he perceived. For instance, the State elicited from Matthew that he did not lock the door behind him when he entered the house and asked whether he considered using non-lethal force before shooting David. These questions, and the State’s subsequent argument based on them, were a challenge to the legitimacy of Matthew’s claim that he reasonably believed lethal force was necessary to protect himself, but the State did not suggest that Matthew had a legal duty to retreat.
Because the trial court did not err in denying Matthew’s requested instruction, the appellate court’s decision was reversed. The matter was remanded for the appellate court to address other issues Matthew had raised on appeal but which had not been not resolved by the court due to its reversal and remand on the instruction issue.
People v. Rothe, 2024 IL 129906
By Kerry J. Bryson, Office of the State Appellate Defender
Joseph Rothe was convicted of armed robbery with a dangerous weapon other than a firearm, a Class X offense. Specifically, Rothe demanded money from another man and struck him in the face with a pipe wrench during the offense. Because this was Rothe’s third Class X conviction, he was sentenced to life imprisonment under the habitual offender statute
The instant appeal arises from Rothe’s petition for relief from judgment, filed pursuant to 735 ILCS 5/2-1401, arguing a proportionate penalties clause violation alleging that armed robbery with a weapon other than a firearm and armed violence with a Category III weapon contain identical elements but not identical penalties. Armed violence with a Category III weapon is only a Class 2 felony. The trial court rejected Rothe’s petition on procedural grounds, and the appellate court rejected it on the merits. The Supreme Court affirmed.
The proportionate penalties clause is violated where the penalty for one offense is greater than another with identical elements. The identical elements test is an objective one, comparing only the statutory elements; it does not take into account how the offenses are applied to an individual defendant or set of circumstances.
Applying that test here, the two offenses are not identical. Armed robbery with a dangerous weapon other than a firearm is committed when a person commits robbery and carries or is otherwise armed with a dangerous weapon onther than a firearm. The statute does not define “dangerous weapon,” so courts have looked to the common law to ascertain what constitutes a dangerous weapon for purposes of armed robbery. Under the common law, a dangerous weapon is any object sufficient susceptible to use in a manner likely to cause serious injury. This definition encompasses both per se weapons as well as objects that may become weapons when used in a dangerous manner.
Armed violence with a Category III weapon is committed when a person commits any felony and carries or is armed with a Category III weapon. A Category III weapon is defined in the statute as “a bludgeon, black-jack, slungshot, sand-bag, sand-club, metal knuckels, billy, or other dangerous weapon of like character.” This definition is limited only to the weapons specifically listed in the statute.
Rothe argued that the pipe wrench he used was “of like character” to a bludgeon and thus fit within the definition of a Category III weapon for purposes of armed violence. But, the armed violence statute does not include any item that can be used as a bludgeon. It is specifically limited to per se weapons that are “of like character” to the weapons listed. Despite its ability to be used in a dangerous manner, as it was here, a pipe wrench simply is not a per se weapon. In reaching this conclusion, the Court overruled several appellate court cases that had held that an everyday object that could be used as a bludgeon constituted a Category III weapon.
The Court’s reasoning was consistent with the reason behind enacting the offense of armed violence. Specifically, the legislature was concerned that the possession of a weapon during another felony increased the harm that might result, thus armed violence was enacted to discourage individuals contemplating commission of a felony from carrying a dangerous weapon during the act. It was not aimed at everyday objects that could be used in a dangerous way.
Because the two offenses do not contain the same definition of “dangerous weapon,” they are not identical. While Rothe argued that there was an inherent unfairness in that, had he committed the offense with an actual bludgeon instead of a pipe wrench, he would have been convicted of armed violence and sentenced to between three and seven years instead of life imprison, “the responsibility for the justice or wisdom of legislation rests upon the legislature.
People v. Mikolaitis, 2024 IL 130693
By Kerry J. Bryson, Office of the State Appellate Defender
Christian Mikolaitis was charged with attempt murder and aggravated battery, and the State filed a petition to deny pretrial release, alleging that he posed a real and present threat to the safety of any person or the community under 725 ILCS 5/110-6.1(a)(1). The circuit court held a detention hearing at which it reviewed the State’s petition and proffer, which included a detailed factual basis for the charges. In its argument at the hearing in favor of detention, the State cited the violent nature of the offense and his risk to the victim if released. The court also had before it the pretrial risk assessment, though it contained limited information because Mikolaitis had refused to participate in the assessment. Defense counsel argued for release on electronic monitoring, noting that Mikolaitis was young, had no criminal history, and had diagnosed mental conditions, though he was not taking prescribed medications to treat those conditions. The court grated the State’s petition to detain, finding that the proof was evident that Mikolaitis committed a detainable offense, he posed a real and present threat to the victim’s safety, and no release conditions would mitigate that threat.
On appeal, Mikolaitis argued that the State failed to show by clear and convincing evidence that no conditions could mitigate any threat he posed because the State failed to present any evidence or argument regarding possible conditions of release. The Supreme Court disagreed that the State was required to specifically address each conceivable condition of release. While Section 110-6.1(e)(3) places the burden of proof on the State, it does not require argument as to specific matters or dictate what evidence or argument the State must present to meet its burden. Instead, the manner in which the State may satisfy its burden will vary depending on the specific facts and circumstances of each case.
Here, the State met its burden by arguing that Mikolaitis should be detained because he committed a violent offense, he posed a risk to the safety of the specific victim of that offense, he admitted committing the offense, and he had access to and possessed a knife during the offense. Ultimately, it is up to the court to review the evidence and determine whether any conditions of release would mitigate the safety threat posed. The court can do so without requiring the State to present any specific evidence or argument. And, here, the court’s determination was proper where the court had before it the aforementioned evidence, along with Mikolaitis’s own admission that he was noncompliant with taking prescribed medication, which the court could reasonably view as indicative of the likelihood that he would not comply with conditions of release.
People v. Haynes, 2024 IL 129795
By Kerry J. Bryson, Office of the State Appellate Defender
Under 720 ILCS 5/8-4(c)(1)(E), a defendant convicted of attempt murder may be sentenced for a Class 1 felony, instead of a Class X felony, if the defendant proves by a preponderance of the evidence at sentencing that “he or she was acting under a sudden and intense passion resulting from serious provocation by the individual whom the defendant endeavored to kill, or another, and, had the individual the defendant endeavored to kill died, the defendant would have negligently or accidentally caused that death.” Victor Haynes brought an appeal alleging that his trial counsel was ineffective for not seeking a reduced sentence under that statute here.
The evidence at Haynes’s trial was that he and several other individuals were on a party bus celebrating a birthday. People were consuming alcohol on the bus, which made multiple stops to buy more alcohol and for bathroom breaks. At some point, Haynes and an individual named “JK” got into an argument. A woman named Virgetta intervened. She may have pushed Haynes, and she testified that he punched and choked her. During that altercation, a man named Jerome White, Virgetta’s uncle, ran to the back of the bus, moved Virgetta aside, and punched Haynes in the face. A fight ensued, and White was shot in the chest. Another man, James Williams, began struggling with Haynes, who had something black in his hand, and two more shots were fired. Williams fell. Haynes fled from the bus with a black gun in hand. The gun matching the cartridge casings from the bus was later recovered nearby, and Haynes was found with a gunshot wound to his hand. White spent about a week in the hospital as a result of being shot, and Williams remained on life support in a vegetative state.
The State argued that Haynes was the initial aggressor, while Haynes’s attorney countered that it did not matter since he was not arguing self-defense but rather that the gun fired accidentally. The judge found Haynes not guilty of the charges related to Williams on the basis that because they were both struggling over the gun when it went off, the judge could not find Haynes fired with an intent to kill. He was convicted of attempt murder of White, however, because there was no evidence that anyone but Haynes’s hands were on the gun when White was shot. The court specifically found that Haynes was the aggressor.
The appellate court agreed with Haynes’s argument that he was entitled to a reduced sentence under Section 8-4(c)(1)(E), but the Supreme Court reversed. The Court began by discussing the history of Section 8-4(c)(1)(E). That provision was a response to Illinois case law holding that there is no offense of attempt second degree murder in Illinois and the fact that a defendant who killed someone when a statutory mitigating factor was present would actually be subject to a lesser penalty for a conviction of second degree murder, a Class 1 felony, than e would if that same victim had survived resulting in a conviction of attempt first degree murder, a Class X felony. Legislative history indicated that Section 8-4(c)(1)(E) was meant to provide defendants “the opportunity to provide mitigating factors consistent with the rationale of second degree murder.”
In construing the statutory requirements, the Court first determined that the “serious provocation” requirement should be construed in the same manner as for second degree murder, given that the section in question was predicated on that offense. Serious provocation can be found under four categories: substantial physical injury or assault, mutual combat, illegal arrest, and adultery with the offender’s spouse. Only mutual combat could be relevant on the facts presented here. But, the Court ultimately concluded that there was no mutual combat. The evidence showed that Haynes was the initial aggressor. He was hitting and choking Virgetta, which prompted White to intervene. An individual who is the initial aggressor cannot rely on another’s response as evidence of mutual combat. Further, the fight was not on equal terms where Haynes escalated the fist fight by introducing a gun into the fray. Thus, Haynes could not satisfy the serious provocation requirement, and he was not entitled to a reduced sentence.
People v. Johnson, 2024 IL 130191
By Kerry J. Bryson, Office of the State Appellate Defender
Ryann Johnson was convicted of domestic battery. The evidence against him tended to show that he committed the offense by pushing his ex-girlfriend to the floor and grabbing her by the neck. In the appellate court, Johnson argued that the trial judge had erred at sentencing by considering an improper factor in aggravation. The appellate court agreed that the court considered an inapplicable factor but concluded that the error was forfeited and did not amount to plain error and therefore affirmed Johnson’s sentence.
The Supreme Court agreed. Johnson conceded he forfeited the issue when he failed to raise a contemporaneous objection when the circuit court announced it was considering the factor and failed to include the issue in his motion to reconsider sentence. Thus, the primary question was whether that forfeited error was subject to plain error review.
In deciding whether an issue is reviewable as plain error, a court must first determine whether a clear or obvious error occurred. The Court quickly concluded that such an error occurred here where the circuit court considered in aggravation that Johnson was in a position of trust in that he was the father of the complainant’s child. But, this statutory factor, under 730 ILCS 5/5-5-3.2(a)(14), only applies where the conviction is for an enumerated sexual offense. This factor was clearly inapplicable here where Johnson was acquitted of all sexual assault charges and, regardless, the complainant was not a qualifying victim under the statutory provision at issue. Thus, there was a clear or obvious error.
Johnson raised this issue only as second-prong plain error in the Supreme Court; he did not argue that the evidence was closely balanced as required for first-prong plain error review. Under the second prong, once the court finds that there was a clear or obvious error, it next considers whether the error was so serious it affected the fairness of the trial and challenged the integrity of the judicial process. This has also been referred to as the “substantial rights” prong of plain error review. An error is deemed to be second-prong plain error where it renders the defendant’s trial or sentencing hearing fundamentally unfair. Prejudice is presumed from such an error; it need not be separately shown.
The Supreme Court has equated second-prong plain error with “structural error,” but has also said that it is not limited to the list of structural errors identified by the United States Supreme Court (complete denial of counsel, denial of self-representation at trial, trial before a biased judge, denial of a public trial, racial discrimination in the selection of a grand jury, and a defective reasonable doubt instruction). Rather, an error may be deemed structural as a matter of Illinois law regardless of its status under federal law.
Ultimately, the Court held that consideration of an improper sentencing factor is not second-prong plain error. Such an error does not undermine the framework within which the sentence is rendered. While the right to be lawfully sentenced is substantial in that it affects an individual’s liberty interest, consideration of an improper sentencing factor alone does not render the full sentencing hearing an unreliable means of imposing an appropriate sentence. Indeed, consideration of an improper aggravating factor is subject to harmless error analysis, and thus it is not a structural error and cannot be reviewed under the second prong of the plain error rule. In reaching this conclusion, the Court overruled appellate court precedents which had reached a contrary result, noting that those cases had mischaracterized prior Supreme Court precedent.
Finally, while consideration of an improper factor may be reviewable as first-prong plain error, Johnson made no such argument here. Accordingly, Johnson’s sentence was affirmed.
People v. Harris, 2024 IL 129753
By Kerry J. Bryson, Office of the State Appellate Defender
In 2012, Kyjuanzi Harris was convicted of two counts of first degree murder and sentenced to life in prison. His convictions and sentence were affirmed on direct appeal. Harris later filed a post-conviction petition, which was dismissed. Three years later he sought leave to file the successive post-conviction petition which is the subject of the instant appeal, alleging, among other things, that he had newly discovered evidence of his innocence. Attached to the filing was an affidavit from an eyewitness, Collins, stating that he saw the shooting and identifying someone other than Harris as the shooter. Collins averred that he did not come forward sooner because he feared for his safety and that of his family. The circuit court denied leave to file, and the appellate court affirmed, concluding that Harris failed to establish that Collins’s testimony could not have been discovered earlier through the exercise of due diligence.
The Supreme Court reversed. The Post-Conviction Hearing Act provides that an imprisoned person may file a petition alleging a substantial denial of constitutional rights, including a claim of actual innocence. And, while the Act contemplates only a single petition, leave to file a successive petition may be obtained where the petitioner either establishes cause and prejudice for not raising the claim in an initial petition or where the petitioner shows actual innocence. Where leave to file is sought based on a claim of actual innocence, leave should be denied “only where it is clear, from a review of the successive petition and the documentation provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.” The petitioner need only raise the probability, not certainty, that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.
Harris’s motion for leave to file the successive petition here referred to Collins’s affidavit as newly discovered evidence of his innocence, which was sufficient to alert the court that he was raising a claim of actual innocence. In that affidavit, Collins explained that he had only met Harris while both men were in prison, which was after Harris’s conviction. Collins identified the actual shooter as an individual named “Sacky” and explained that he left the scene of the shooting without speaking to the police out of fear for his and his family’s safety.
The appellate court found that Collins could have been discovered at the time of trial because he would have been visible to other eyewitnesses given where he claimed to have been standing at the time of the shooting. According to the appellate court, Harris should have attempted to ascertain who else was at the scene and, with no explanation for why he had not identified Collins through other witnesses, he would not meet the “newly discovered” threshold. The Supreme Court disagreed, finding that the appellate court’s conclusion was pure speculation without any evidentiary support as to what other witnesses may have been able to observe. In doing so, the appellate court placed an undue burden on Harris, one that is not required to obtain leave to file a successive petition. Collins’s information satisfied the requirement that the evidence of actual innocence be “new.”
Similarly, the appellate court erred in rejecting Harris’s motion for leave to file on the basis that Collins could have been discovered before Harris filed his initial petition had Harris exercised due diligence. But, no such requirement exists for obtaining leave to file a successive petition alleging actual innocence. Under the actual innocence test, a petitioner must show that the newly discovered evidence could not have been discovered before trial through the exercise of due diligence. Requiring a petitioner to show due diligence with respect to whether the evidence could have been discovered prior to filing the initial post-conviction petition would have the effect of grafting a “cause” requirement onto the actual innocence standard for leave to file. Such a requirement is unsupported by the Court’s precedent.
Finally, the Supreme Court found that Collins’s affidavit met the requirement that it be material, noncumulative, and conclusive. Taking Collins’s affidavit as true, as a court must at the leave-to-file stage, there was a probability of a different result if Collins’s eyewitness testimony was presented. Harris’s conviction was based on the testimony of two eyewitnesses, one of whom was a daily heroin user with untreated paranoid schizophrenia and the other of whom had a limited ability to view the shooter. No forensic evidence linked Harris to the shooting. Collins provided an eyewitness account identifying another man as the shooter, and his account was not positively rebutted by the record. Credibility determinations cannot be made at the leave-to-file stage, and Collins’s information raised at least the probability that no reasonable juror would have convicted Harris had his testimony been available. The Supreme Court reversed the denial of leave to file and remanded for second-stage post-conviction proceedings.