Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD), Robert Clifford( RJC)  and Timothy J. Joyce(TJJ)


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2 Appellate Court Cases Posted 1-31-14

1.   Juvenile Justice: Affirmed:  The appellate court had been uniform in holding that the EJJ statute did not violate Apprendi because “the EJJ statute was not an adjudicatory statute, but rather a dispositional one, in that ‘it does not determine a respondent’s guilt or the specific sentence.’ ”  The Supreme Court has found that even if Apprendi applied, there would be no violation because “for the purposes of Apprendi, the statutory maximum is not the juvenile sentence under the Juvenile Court Act, but rather the maximum sentence allowed by the offense committed.”  Gordon, PJ

No. 2014  IL App (1st) 100066  In re Omar M. Filed 1-31-14   (LJD)

Respondent Omar M. was prosecuted, convicted, and sentenced under section 5-810 of the Juvenile Court Act of 1987 (705 ILCS 405/5-810 (West 2008)), the extended jurisdiction juvenile prosecutions (EJJ prosecution) statute, for first-degree murder, receiving the maximum juvenile sentence of incarceration until his twenty-first birthday and a 20-year stayed adult sentence.  In the first case, we did not find respondent’s arguments persuasive, and we affirmed.  The supreme court subsequently entered a supervisory order directing us to vacate our judgment and reconsider in light of In re M.I., 2013 IL 113776, to determine whether a different result is warranted. In re Omar M., No. 115015 (Ill. 2013). After considering the supreme court’s decision in M.I., our conclusion remains the same, and we continue to affirm.

2.  Criminal Law: Affirmed: In Illinois, the admission of expert testimony is governed by the standard first expressed in Frye v. United States.  Commonly called the 'general acceptance' test, the Frye standard dictates that scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is 'sufficiently established tohave gained general acceptance in the particular field in which it belongs.' In this context, 'general acceptance' does not mean universal acceptance, and it does not require that the methodology in question be accepted by unanimity, consensus, or even a majority of experts. Instead, it is sufficient that the underlying method used to generate an expert's opinionis reasonably relied upon by experts in the relevant field.  Significantly, the Frye testapplies only to 'new' or 'novel' scientific methodologies. Generally speaking, a scientificmethodology is considered 'new' or 'novel' if it is ' "original or striking" ' or 'does "not resembl[e] something formerly known or used." Scientific methodology is considered novel when the issue of its general acceptance inthe relevant scientific community remains unsettled.  Rochford, J.

No. 2014  IL App (1st) 120084  People v. Shanklin Filed 1-31-14   (LJD)

A jury convicted defendant, Tony Shanklin, of three counts of first-degree murder, one countof home invasion, and two counts of aggravated criminal sexual assault. The trial court merged thehome invasion count and the three first-degree murder counts into one count of first-degree murder,and sentenced defendant to a 60-year term of imprisonment for the first-degree murder convictionand to two 25-year terms of imprisonment for the aggravated criminal sexual assault convictions,all to be served consecutively.  We affirm.

2 Appellate Court Cases Posted 1-30-14

1.  Foreclosure:Affirmed:  A de novo standard of review applesa in cases in which the trial court either dismissed a section 2-1401 petition or ruled on the petition based on the pleadings alone, without an evidentiary hearing.  Postjudgment interest is not specifically referenced, or even implied, in the statutory sections that address the foreclosure judgment itself, the sheriff or judicial sale ,the report of and confirmation of that sale, or the application of the sale proceeds. Postjudgment interest, however, is addressed in the statutory section on redemption.  The general rule in Illinois is that a foreclosure judgment (and order of sale) is not a final and appealable judgment because it does not dispose of all of the issues between the parties and does not terminate the litigation.  That general rule, however, does not apply where the trial court has made a Rule 304(a) finding that there is no just reason to delay enforcement or appeal of the foreclosure judgment. Carter, J. dissent by O'Brien, J.

No. 2014  IL App (3rd) 130107    CitiMortgage, Inc. v. Sharlow  Filed 1-30-14   (LJD)

About 22 months after the judicial foreclosure sale of her property was confirmed by the trial court, defendant, Sherrie L. Sharlow, filed a petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) to modify the order confirming the sale, alleging that a surplus existed from the sale of her property and that she was entitled to that surplus.  Plaintiff, the mortgagee that had foreclosed upon the property and that had purchased the property at the sheriff's sale, opposed the petition, claiming that no surplus existed and that the unallocated amount, over $10,000, was attributable to accrued postjudgment interest and additional costs and advances that plaintiff was due. Following a hearing, the trial court denied defendant's section 2-1401 petition. Defendant appeals. We affirm the trial court's judgment.

2.  Criminal Law: Affirmed: Our supreme court concluded the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the aggravated unlawful use of a weapon statute is unconstitutional because it violates the second amendment's guarantee of the right to keep and bear arms. Our supreme court has recognized the plea-bargaining process is vital to our criminal justice system as it encourages "prompt disposition of cases, preserves finite judicial and financial resources, and allows the State to focus its prosecutorial efforts where they are most needed."  Plea agreements are enforceable contracts and, when appropriate, courts will apply contract law principles to plea agreements.  Pope, J.

No. 2014  IL App (4th) 120454    People v. Green Filed 1-30-14   (LJD)

On appeal, defendant contends his fully negotiated guilty plea leading to a conviction for armed habitual criminal is void because one of the underlying offenses used to satisfy the armed habitual criminal statute, i.e., aggravated unlawful use of a weapon, was found unconstitutional by our supreme court. We affirm.

4 Appellate Court Cases Posted 1-28-14

1.  Criminal Law/Sentencing/Post-conviction Petiton: Affirmed: Here, the State drafted count VI to include the accountability theory and used the accountability theory and conceded facts to structure a 35-year sentence. The accountability theory was an integral part of the plea agreement. The trial court admonished defendant he was subject to the 15-year firearm enhancement. Defendant's 35-year sentence is not void and he is not entitled to withdraw his guilty plea.  Knecht, J.  

No. 2014  IL App (4th) 120882    People v. Garza   Filed 1-28-14   (RJC)

In July 2011, defendant, Juan A. Garza, Jr., pleaded guilty to first degree murder (720 ILCS 5/9-1(a)(3) (West 2010)). In July 2011, the trial court sentenced defendant to 35 years' imprisonment. In June 2012, defendant filed a pro se motion for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). In August 2012, the trial court, on the State's motion, dismissed the petition. In December 2012, defendant filed a pro se postconviction petition. In January 2013, the court summarily dismissed the petition.  Defendant argues this court should vacate his plea because the 35-year sentence he negotiated with the State is void. He contends his 35-year sentence, based on the 15-year firearm enhancement (730 ILCS 5/5-8-1(a)(1)(d)(i) (West 2010)), is void because it can be inferred from the factual basis he personally discharged a firearm causing the death of the victim. He asserts this triggered the 25-year mandatory firearm sentencing enhancement (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010)) and a minimum 45-year sentence. Affirmed.

2.  Criminal Law/Sentencing: Affirmed in part, vacated in part, and remanded:  The trial court imposed the reimbursement order as a perfunctory exercise at the time the public defender was appointed and without a hearing on defendant's ability to pay. The reimbursement order was not appropriate. The July 13, 2010, $200 public defender reimbursement order is vacated and remand for a hearing pursuant to section 113-3.1 of the Procedure Code.  Nothing in the record suggests the trial court determined the mandatory fines that applied to defendant's convictions and imposed those fines.  This court has consistently held the circuit clerk does not have the power to impose fines. The fines imposed by the circuit clerk are  vacated and remanded with directions for the trial court to (1) reimpose the mandatory fines as required (this includes only those fines authorized at the time of the offense), (2) direct the circuit clerk to apply defendant's statutory credit against creditable fines in the respective cases, and (3) amend the sentencing judgment in Nos. 09-CF-46 and 11-CF-12 to state the sentence in No. 11-CF-45 is consecutive to the sentence in No. 11-CF-12. As part of our judgment, we award the State its $50 statutory assessment as costs of this appeal. 55 ILCS 5/4-2002(a) (West 2012). Knecht, J.  

No. 2014  IL App (4th) 120993    People v. Montag   Filed 1-28-14   (RJC)

In June 2011, the trial court sentenced defendant, Kent Montag, to two years' imprisonment in Woodford County case No. 09-CF-46, four years' imprisonment in Woodford County case No. 11-CF-12, and five years' imprisonment in Woodford County case No. 11-CF-45. The sentence in No. 11-CF-12 was ordered to run concurrently to the sentence in No. 09-CF-46 and the sentence in No. 11-CF-45 was ordered to run consecutively to the sentence in No. 11-CF-12. On September 4, 2012, trial counsel filed a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) asserting he had "made all amendments to the motion necessary for the adequate presentation of any defects" in the guilty plea and sentencing hearings. In October 2012, counsel filed an amended motion to reconsider defendant's sentence. The trial court denied the motion.  On appeal, in Nos. 4-12-0993 and 4-12-0994, defendant argues trial counsel's certificate is not in strict compliance with Rule 604(d) because it was filed prior to the amended motion to reconsider. In No. 4-12-0995, defendant argues he was improperly assessed a $200 public defender fee because it was imposed at the time the trial court appointed counsel and without a hearing on defendant's ability to pay. In all three appeals, defendant argues he is entitled to a $5 per diem credit against his creditable fines. Our review showed other errors we address as necessary. We affirm in part, vacate in part, and remand with directions.

3.  Criminal Law/Sentencing/Post-conviction Petiton: Affirmed in part and vacated in part; cause remanded:  The circuit clerks lack authority to impose fines, which as a matter of law must be imposed by the trial court as part of the sentence ordered (730 ILCS 5/5-9-1 (West 2012)). Case law regarding fines and fees repeatedly state the circuit clerk is without authority to impose fines. The cases seldom refer to the trial judge's abdication of his responsibility to impose fines as part of the sentencing process. Trial judges have the responsibility to impose a lawful sentence. The prosecution and defense have a duty to assist  the court in doing so. Knecht, J.  

No. 2014  IL App (4th) 120564    People v. Chester   Filed 1-28-14   (RJC)

On March 22, 2012, defendant, Gregory J. Chester, filed a pro se petition under the Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 through 122-8 (West 2012)). Four days later, defendant moved to stay the postconviction proceedings to allow him time to add additional unspecified constitutional arguments he recently found. In his motion, defendant referenced section 122-5 of the Postconviction Act (725 ILCS 5/122-5 (West 2012)) and stated the trial court had the authority to allow petitioners to withdraw their petitions. In June 2012, the trial court dismissed defendant's petition, finding it frivolous and patently without merit. Defendant appeals, arguing (1) he had a right to withdraw his postconviction petition without prejudice during the first stage of postconviction proceedings; (2) the trial court abused its discretion by failing to rule on defendant's motion to stay before denying the postconviction petition; and (3) he is entitled to monetary credit against the Children's Advocacy Center fee and drug court fee due to the time he spent in jail awaiting sentencing. We disagree with defendant's first and second arguments, vacate the fines referenced in his third argument as assessed by the circuit clerk, and remand with directions that the trial court impose mandatory fines and credit creditable fines as appropriate.

4. Illinois Commerce Commission: Affirmed:  The plain language of the statute provides the Commission with the discretion to determine whether Ameren's proposed actual capital structure is prudent and reasonable. The Commission both possessed and exercised its authority in adopting the Commission staff's recommendation. The Commission acted within its authority and made adequate, detailed findings on the substantial evidence presented. Therefore, the Commission did not err in finding that Ameren's rate was unreasonable and its subsequent adoption of the modified rate of common equity in both cases.  The Commission did not err by including the ADIT adjustment for projected plan additions in its ratemaking calculation.  Finally, the Commission lacked the authority to recalculate the rate base during the first reconciliation proceeding and properly refused to alter the rate base by removing the calculation for accrued but unused vacation pay. Holder White, J.  

No. 2014  IL App (4th) 121008    Ameren Illinois Company v. Illinois Commerce Commission - Modified upon denial of rehearing   Filed 1-28-14   (RJC)

In January 2012, Ameren Illinois Company (Ameren) filed its initial application with the Illinois Commerce Commission (Commission) to establish a performance-based rate tariff under the authority of section 16-108.5 of the Public Utilities Act (Utilities Act), commonly referred to as the Energy Infrastructure Modernization Act (Modernization Act) (220 ILCS 5/16-108.5 (West 2012)), enacted by Public Act 97-616 (Pub. Act 97-616, § 10 (eff. Oct. 26, 2011)). Following a September 2012 evidentiary hearing, the Commission issued a written decision in which, among other things, it (1) rejected and subsequently reduced Ameren's proposed rate of common equity so that it was more consistent with the common equity of Ameren's holding company, Ameren Company (holding company); (2) considered Ameren's accumulated deferred income taxes (ADIT) for projected plant additions in calculating Ameren's rate base; and (3) decreased Ameren's rate base by unused vacation pay accrued by Ameren employees. In April 2012, Ameren filed its first annual update with the Commission. In December 2012, the Commission reaffirmed the aforementioned findings.  On appeal, Ameren asserts the Commission made three reversible errors in reaching its decision, including (1) considering the capital structure of Ameren's holding company rather than the actual capital structure of Ameren when determining rate base; (2) reducing Ameren's rate base by ADIT for projected plant additions; and (3) decreasing Ameren's rate base by unused vacation pay accrued by Ameren employees. Affirmed.

2 Appellate Court Cases Posted 1-27-14

1.  Property Tax Code: Affirmed: Under Ballinger's reading, persons who acquired an interest in real property through a will not recorded in the recorder's office would not be able to challenge a tax purchaser's failure to provide him or her with notice. We will not read section 22-45(4) in a way to place at risk interests not recorded in the recorder's office although the interest is identifiable in other public records. It is more reasonable to interpret "recorded ownership or other recorded interest" as an interest that can be inferred from public records. While this requires a tax purchaser to expand his search beyond the recorder's office, it eliminates unnecessary tension between section 22-45(4) and well-established probate and property law.  Also, Ballinger's contention Nancy does not have a recorded interest because the will included a class gift to Gertrude's "grandchildren" but did not state Nancy's name is rejected. As a grandchild, Nancy had a recorded interest. Wexstten, J.  

No. 2014  IL App (4th) 130261    In re: The Application of the Douglas County Treasurer   Filed 1-27-14   (RJC)

In January 2008, petitioner, Dennis D. Ballinger, purchased the taxes due for tax year 2006 on a 40-acre parcel of farmland in Douglas County (permanent index No. 02-07-24-200-002) (hereinafter the property). In 2010, Ballinger acquired a tax deed for the property. In September 2011, respondents Douglas A. Moore, Richard W. Moore (both as coexecutors of the estate of Joan J. Cook), Clifford M. Jones, and Nancy H. Jones filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)), alleging Ballinger failed to provide proper notice and requesting the tax deed be set aside. In March 2013, the trial court granted respondents' motion for summary judgment and set aside the tax deed. Ballinger appeals, arguing the trial court erred in granting respondents' summary judgment motion because (1) Nancy does not have a "recorded" ownership interest in the property to be entitled to relief pursuant to section 22-45(4) of the Property Tax Code (35 ILCS 200/22-45(4) (West 2010)), and (2) issues of material fact remain whether Ballinger conducted a diligent inquiry to locate Nancy. Affirmed.

2.  Liens/Towing and storage: Affirmed: There is no dispute between the parties that the decedent's Prius was not abandoned, lost, stolen, or unclaimed at the time the police authorized the defendant to tow it to his storage lot. As such, section 4-202 (625 ILCS 5/4-202 (West 2010)) does not allow a lien to attach to the Prius pursuant to section 2-204 of the Illinois Vehicle Code (625 ILCS 5/4-204 (West 2010)). Also, there is nothing in section 4-203 that pertains to the facts of this case in order to allow a lien to attach to the Prius via section 4-204A.  Accordingly, section 4-204  does not apply to allow a lien to attach to the Prius for the defendant's towing and storage fees. Knecht, J.  

No. 2014  IL App (5th) 130031   Estate of James v. Tondini   Filed 1-27-14   (RJC)

The defendant, Kevin Tondini, doing business as Tondini's Towing and Storage, appeals the December 5, 2012, order of the circuit court of Williamson County holding that the defendant did not have a lien for towing and storage of an automobile owned by the plaintiff, the estate of Charles R. James (the Estate), pursuant to section 4-204 of the Illinois Vehicle Code (625 ILCS 5/4-204 (West 2010)). Affirmed.

4 Appellate Court Cases Posted 1-24-14

1.  Mortgage Foreclosure: Affirmed: In order to "apply for assistance under MHAP" pursuant to section 15-1508(d-5) of the Foreclosure Law the borrower must submit the documentation required by the servicer to determine the borrower's eligibility and verify his or her income. The record discloses defendants did not submit the required documentation to CitiMortgage.  Pursuant to section 15-1508(d-5), defendants must prove by a preponderance of the evidence they applied for assistance under HAMP. Based on the record, we cannot say the trial court abused its discretion in denying defendants' motion and confirming the sale of the property.  A motion for extension  was filed over a month after the reply brief was due and was unsupported by affidavit.  The trial did not abuse its discretion in denying defendants' motion for extension of time. Reyes, J.  

No. 2014  IL App (1st) 122824   CitiMortgage, Inc. v. Bermudez   Filed 1-24-14   (RJC)

This appeal arises from a mortgage foreclosure action involving a property owned by defendants Juanita Bermudez (Bermudez) and Hector Acevedo (Acevedo) (collectively defendants). Defendants sought to save their residence from foreclosure by obtaining assistance through the Home Affordable Modification Program (HAMP) a component of the Making Home Affordable Program (MHAP). It was only after a judgment of foreclosure and sale was entered and the property was sold at a judicial sale that defendants appeared in the lawsuit. Defendants now appeal from the circuit court of Cook County's denial of their motion to set aside the judicial sale and the order confirming the judicial sale pursuant to section 15-1508(d-5) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1508(d-5) (West 2012)). Defendants also appeal from the circuit court's denial of leave to file a late reply in support of their motion to set aside the sale, the denial of leave to file a late response to a motion to strike an affidavit, and an order denying them leave to obtain limited discovery concerning HAMP requirements for Freddie Mac mortgages.

2.   Tort/Agency: ‘Unless a duty is owed, there is no negligence.’ Absent a special relationship, there is no duty to protect another from the criminal act of a third party.  Illinois law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons.”  Three elements listed and discussed.  Significant also is the rigorous standard of proximate causation applied in negligent-hiring-and-retention cases. Illinois courts require that the injury itself must have “occurred by virtue of the servant’s employment (i.e., ‘because of the employment’).”   Birkett, J.

No. 2014  IL App (2d) 130121   Doe v. Boy Scouts of America   Filed 1-24-14   (RJC)

Plaintiff, Jane Doe, as mother and next friend of John Doe (John), a minor, appeals from the trial court’s granting summary judgment in favor of defendants, Boy Scouts of America (BSA) and the Blackhawk Area Council of Boy Scouts of America (BAC), on plaintiff’s negligence claims against them. (Plaintiff also brought negligence and battery claims against former BAC employee Charles Bickerstaff, which are not involved in this appeal.) For the following reasons, we affirm.

3.  Criminal Law/Post-conviction Petiton: Reversed and remanded: As the petition was both filed and docketed on August 27, 2012, the trial court was without authority to enter a summary dismissal of the petition pursuant to section 122-2.1(a)(2) of the Act on March 15, 2013, more than 90 days later.  Schostok, J.

No. 2014  IL App (2d) 130332   People v. Lentz   Filed 1-24-14   (RJC)

The defendant, Christy Lentz, was convicted of the first-degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) of her father, Michael Lentz, and was sentenced to 50 years’ imprisonment. She appealed, arguing that the trial court erred in denying her motion to suppress statements, refusing to instruct the jury on involuntary manslaughter, and allowing a photograph of the victim to be published to the jury. We affirmed. People v. Lentz, 2011 IL App (2d) 100448-U. Her subsequent petition for leave to appeal to the supreme court was denied. On August 27, 2012, the defendant timely filed a postconviction petition, in which she argued that she received ineffective assistance of her trial counsel. The court set the petition for status on March 15, 2013. On that date, the court entered a two-page order summarily dismissing the petition. The defendant filed a timely appeal, arguing that (1) the trial court erred in entering a summary dismissal more than 90 days after the petition was filed and docketed, and (2) the petition had stated the gist of a constitutional claim and thus should have proceeded to the second stage of postconviction proceedings.  Also, the court found that the petition was frivolous and patently without merit, thereby justifying summary dismissal.  As the defendant’s first argument is correct, no need to reach the second.

4.   Illinois Drug Asset Forfeiture Procedure Act: Reversed: The circuit court erred in vacating the State's declaration of forfeiture. The petitioners, despite actual notice of the forfeiture proceedings and an opportunity to contest the State's forfeiture, failed to file a verified claim or cost bond pursuant to the Forfeiture Act. By choosing not to comply with the statutory requirements for asserting their interest in the property, they effectively chose not to contest the forfeiture. Accordingly, their claim before the circuit court fails.  The circuit court's order vacating the previous declaration of forfeiture and resetting the matter for a probable cause hearing is reversed. Wexstten, J.  

No. 2014  IL App (5th) 130075   People v. Sixteen Thousand Five Hundred Dollars ($16,500) United States Currency   Filed 1-24-14   (RJC)

The plaintiff, the People of the State of Illinois ex rel. Brendan F. Kelly, State's Attorney of St. Clair County, administratively declared $16,500 in United States currency forfeited pursuant to the Illinois Drug Asset Forfeiture Procedure Act (the Forfeiture Act) (725 ILCS 150/1 to 14 (West 2012)). The petitioners, William and Cynthia Warner, filed a petition to vacate the State's administrative order and dismiss the forfeiture proceedings. The circuit court entered orders finding that the State improperly denied the petitioners notice in the forfeiture action, vacating the State's administrative declaration of forfeiture, and resetting its previous probable cause hearing to allow notice to be given the petitioners. The State appeals, arguing that the circuit court violated the separation of powers clause of article II, section 1, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. II, § 1), that the circuit court lacked subject matter jurisdiction to vacate the State's declaration of forfeiture, and that the petitioners had no standing to contest the forfeiture. We reverse.

5 Supreme Court Cases Posted 1-24-14

1.  Traffice/6-303/Summary Suspension: Appellate court was reversed and the circuit court was affirmed: The Illinois Supreme Court found  that the use of the word “rescind” in this statutory context is properly construed to be prospective-only and not to have any retroactive effect. If Elliott was under suspension when he was pulled over in Perry County, which was the case here, any subsequent rescission of his suspension did not change that fact because the rescission is prospective from the time at which it took place. Driving on a suspended license is a crime irrespective of any future rescission.  Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014  IL  115308    People v. Elliott    Filed 1-24-14   (RJC)

A Perry County conviction for driving on a suspended license was upheld by the Illinois Supreme Court even though, after that conviction, the summary suspension was later rescinded. On August 26, 2009, David Elliott was arrested in Jackson County for driving under the influence and was given a notice of the statutory summary suspension of his driver’s license, which would commence on October 11. On September 1, he filed a petition to rescind that summary suspension. On October 13, while under the suspension, he was pulled over in Perry County and issued a citation for driving on a suspended license. In a subsequent bench trial, he was found guilty, notwithstanding the fact that, on October 19, the Jackson County court had acted on his petition and had rescinded the statutory summary suspension. Pursuant to the Jackson County circuit court’s action, the Secretary of State later entered a notice and order of rescission, removing the statutory summary suspension from Elliott’s driving record. The Perry County conviction was reversed by the appellate court on the theory that the suspension had been undone as if it never existed. The State appealed.

2.  Criminal/Post-conviction petition/MSR:  Appellate court affirmed: The Illinois Supreme Court held in this decision that the law was indeed changed in 2011, but that this is of no benefit to McChriston. At the time he was sentenced, the plain language of the statute provided that the MSR term was included automatically in the sentence, even if not specifically written therein. Thus, the Department of Corrections did not add anything to the offender’s sentence by imposing the MSR term, and his separation of powers claim fails. His claim of a denial of federal due process rights was also rejected. Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014  IL  115310    People v. McChriston    Filed 1-24-14   (RJC)

This Champaign County offender received a 25-year term in 2004 after a jury convicted him of unlawful delivery of a controlled substance. This was a Class 1 felony with a mandatory Class X sentence. The appellate court affirmed on direct appeal. A postconviction petition which was later filed was dismissed, and the appellate court affirmed in 2009. The issue of a mandatory parole term, now known as mandatory supervised release, or MSR, had not been dealt with in any of these earlier proceedings. In the trial court, mandatory supervised release had not been mentioned, and the written sentencing order did not refer to it. However, at the time of trial, in 2004, statute provided that the term of mandatory supervised release for a Class X felony was three years and that every such sentence “shall include as though written therein a term in addition to the term of imprisonment.” The parties do not dispute as to whether MSR was mandatory in the defendant’s case or that a three-year MSR term was required. In 2011, there was a statutory amendment which removed the phrase “as though written therein” and required, instead, that an MSR term “shall be written as part of the sentencing order.” This amendatory language thus required a sentencing court to explicitly write the applicable MSR term into its order. That same year, McChriston filed pro se a new claim for relief, this time utilizing the law of civil procedure. He claimed that, in 2004, the Department of Corrections had acted without authority in imposing an MSR term and that this violated the separation of powers clause of the Illinois Constitution of 1970. The circuit court dismissed his petition for failure to state a cause of action and the appellate court affirmed, finding that the MSR term attached by operation of law. The appellate court, which had upheld the circuit court’s dismissal, was affirmed.

3.  SOL/Fraudulent misrepresentation: Appellate court affirmed: The Illinois Supreme Court held held that the five-year default provision applies and rejected the theory that the fraudulent misrepresentation claim was not subject to any limitation period at all.  In the Code, there is a provision which is entitled “Construction—Design management and supervision.” It provides limitations and repose periods and states, at its end, that the “limitations of this Section shall not apply to causes of action arising out of fraudulent misrepresentations or to fraudulent concealment of causes of action.” The supreme court noted that this section does not state that a fraud-based construction claim may be brought at any time. The trial court’s award of summary judgment in favor of Wight was upheld. Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014  IL  115330   Gillespie Community Unit School District No. 7 v. Wight & Co.    Filed 1-24-14   (RJC)

In March of 2009, a coal mine subsided beneath an elementary school in Benld, in Macoupin County. The school’s construction had been completed in 2002, and it was first occupied and used in August of that year. There was extensive structural damage and, within a few weeks of the subsidence event, the building was condemned. On April 26, 2010, plaintiff Gillespie Community Unit School District No. 7 filed the fraudulent misrepresentation claim at issue here against defendant Wight & Company, with whom it had contracted in 1998 to perform a “site mine investigation” for the then-proposed school. This agreement provided that any causes of action would be deemed to have accrued, and limitation periods would begin to run, on the date of substantial completion. The trial and appellate courts found this to be the autumn of 2002, and this is not disputed here. The supreme court noted that the validity of this earlier agreement concerning limitations was not before it. The school district alleged that it would have acted differently as to whether it should go forward with the school construction project if Wight had provided it with further information pursuant to the contract. This appeal involves the question of whether the school district’s fraudulent misrepresentation claim is barred by limitations. The circuit court had awarded summary judgment to Wight and the appellate court affirmed. In its appeal to the Illinois Supreme Court, the school district argued that there was no statute of limitations which applied to the fraudulent misrepresentation claim. In the limitations Article of the Code of Civil Procedure, there is a default provision which states that “all civil actions not otherwise provided for shall be commenced within 5 years next after the cause of action accrued.” Elsewhere in the Code, there is a provision which is entitled “Construction—Design management and supervision.” It provides limitations and repose periods and states, at its end, that the “limitations of this Section shall not apply to causes of action arising out of fraudulent misrepresentations or to fraudulent concealment of causes of action.” The supreme court noted that this section does not state that a fraud-based construction claim may be brought at any time. However, the school district took the position that there was no limitation period at all which was applicable to its fraudulent misrepresentation claim, while defendant Wight argued that the claim was barred by this five-year default provision, given that the cause of action accrued in 2002 and the claim was filed in 2010. The appellate court had agreed with this reasoning, as did the Supreme Court in this decision. 

4.  Neglect/Parental rights: Appellate court reversed and circuit court affirmed: In this decision, the Illinois Supreme Court characterized what the State had failed to do as a pleading error which did not constitute failure to state a cause of action. It is apparent from the record that the parties proceeded as though all of the nine-month periods after the initial one were relevant, and the mother defended against all of those periods. She did not indicate any specific harm or prejudice to her as a result of the State’s failure to name specific time periods, nor any surprise or hindrance in the preparation of her defense. Under the law of civil procedure, which governs such cases, the issue was forfeited for failure to raise it in the trial court, where the defect could have been remedied earlier. The circuit court was upheld on this issue and the appellate court was reversed. Justice Theis delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

No.2014  IL  115330    In re S.L.    Filed 1-24-14   (RJC) 

In this Marion County case, a June 11, 2012 termination of a mother’s parental rights was upheld despite a pleading defect resulting from the failure of the State to comply with a statutory provision. Parental rights were terminated under a statute permitting termination when the parent fails to make reasonable progress towards the return of the child during any nine-month period after the end of the initial nine-month period following an adjudication of neglect. Here the adjudication took place on November 29, 2007, and was based on an injurious environment. Prior to these proceedings, in 2006, a statutory amendment had provided that the State shall file and serve “a pleading that specifies the 9-month period or periods relied on *** no later than 3 weeks before the date *** for closing discovery.” In this case, the State never did plead or file a separate notice specifying the particular nine-month period or periods on which it was relying. However, the mother made no objection in the trial court, raising this issue for the first time in her appeal. She alleged there that this defect constituted a failure to state a cause of action. The appellate court agreed with her. It found no forfeiture in her failure to raise this matter earlier, and reversed the circuit court’s unfitness finding. The State appealed.

5.  Criminal/Post-conviction petition: Appellate and circuit courts reversed and case remanded:  In this decision, the Illinois Supreme Court explained that at the first stage of postconviction proceedings, statute directs the circuit court to act independently of any input from the State and to determine the “substantive virtue” of the constitutional claim, i.e., whether it is frivolous or patently without merit. The court may summarily dismiss under this test, but if it does not, the litigation continues to the second stage, at which time the State may participate and raise procedural issues such as lack of timeliness or, as here, failure to file the required affidavit. Proceedings which survive this second stage are then resolved by an evidentiary hearing held at the third stage.  The supreme court said here that the resolution of procedural issues at the first stage was improper as not authorized by statute. The only dismissal allowed at this point is for a claim that is frivolous or patently without merit. This procedure is what the legislature intended, as demonstrated by the statutory language. The State’s objection to lack of an affidavit can properly be raised at the second stage. Thus, the supreme court’s ruling here neither eviscerates the requirement of a verification affidavit nor renders it surplusage. Both the circuit and appellate courts were reversed. On remand, second-stage proceedings should be conducted by the circuit court.  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2014  IL  115638    People v. Hommerson   Filed 1-24-14   (RJC)

This Lake County appeal deals with the proper procedures in postconviction proceedings.  Peter Hommerson was sentenced to a natural life term after a jury found him guilty of two murders in 2008. In 2011, after these results were affirmed on direct appeal, he filed a postconviction petition pro se, asserting that his trial attorney had been ineffective. His filing did not include the verification affidavit required by the Postconviction Hearing Act. For this reason, the circuit court summarily dismissed his petition, and the appellate court affirmed.


4 Appellate Cases Posted 1-23-14

1.  Worker's compensation: Affirmed in part and reversed in part:  The fact that the claimant was considered an "activefireman" under the Pension Code for purposes of duty disability benefits does not establish thathe is a "duly appointed member" of the fire department under section 1(b)(1) of the Act. As wemade clear in Dodaro, the claimant's status under section 1(b)(1) depends upon the powers andprivileges he enjoyed at the time of his injury, not upon his eligibility for benefits under thePension Code or any labels used in personnel documents.  Elements and requirements of res judicata discussed.  Pension Board of the City is different party than the City of Chicago.   Holdridge, J.

No. 2014  IL App (3d) 121507WC    The City of Chicago v. Illinois Workers' Compensation Commission    Filed 1-23-14   (RJC)

The claimant, Joseph Locasto, filed an application for adjustment of claim under theWorkers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2008)) seeking benefits forinjuries which he sustained while working for the employer, the City of Chicago (the City). After conducting a hearing, the arbitrator found that the claimant had proven a work-relatedinjury and awarded him 75 5/7 weeks of temporary total disability (TTD) benefits plus medical expenses. However, the arbitrator denied the claimant's claim for temporary partial disability (TPD) benefits and/or maintenance benefits.  Both parties appealed the arbitrator’s decision to the Illinois Workers' Compensation Commission (the Commission). The claimant appealed the arbitrator's denial of TPD and/or maintenance benefits. The City appealed the Commission's award of TTD benefits and  edical expenses, arguing that: (1) the claimant's claims are barred by section 1(b)(1) of the Act (820 ILCS 305/1(b)(1) (West 2008)), which excludes "duly appointed member(s)" of the City's fire department from the Act's definition of a covered "employee" for purposes of the claims at issue in his case; (2) the claimant's claims are barred under the doctrines of res judicata and/or collateral estoppel because the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (the Board) denied the claimant's claim for duty disability benefits arising out of the same accident and injuries at issue in this case. The Commission unanimously rejected the City's arguments, modified the arbitrator's decision by awarding TPD benefits and reducing the award of medical expenses, and affirmed and adopted the arbitrator's decision in all other respects. The City sought judicial review of the Commission's decision in the circuit court of Cook County, which confirmed the Commission's ruling. This appeal followed.

2.  Juvenile/Delinquency/VOP: Vacated: The minor argues that the trial court lacked the authority under the Act to sentence him to a term of detention in the county jail because section 5-710 of the Act only authorizes a 30-day term in juvenile detention. Under section 5-720(4) of the Act, a minor who violates probation is subject to being resentenced to any other sentence that was available at the time of the initial sentence under section 5-710 of the Act. 7.   Section 5-710(1)(a)(v) permits a period of detention not to exceed 30 days, provided the detention shall be in a juvenile detention home. Such a sentence is not authorized by the Act, so we vacate the minor’s sentence of five days in the county jail. O'Brien, J.

No. 2014  IL App (3d) 120781     In re B.P.D.    Filed 1-23-14   (RJC)

The minor, B.P.D., was adjudicated delinquent in 2007, when he was 15 years old, and sentenced to five years' probation. During the probation, the State filed a petition alleging a probation violation, which the minor admitted. The minor, who was 20 years old, was ordered to serve five days in the county jail. The minor appealed, arguing that the delinquency provisions of  the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-101 et seq. (West 2010)) did not authorize sentencing him to the county jail.

3.  Criminal Law/Pleas: Revwersed and remanded: To obtain relief on such an ineffective assistance claim, a defendant must show that "a decision to reject the plea bargain would have been rational under the circumstances." The defendant made the requisite showing of prejudice under the Strickland test, and the trial court erred in dismissing his motion to vacate the guilty plea. Because we have concluded that trial counsel was ineffective on direct appeal, the issue presented in the second (PC) appeal is moot. Accordingly, it is dismissed. Lytton, J. with Holdridge, J. specially concurring and McDade, J. dissenting. 

No. 2014  IL App (3d) 090464    People v. Guzman    Filed 1-23-14   (RJC)

Defendant Jorge Guzman was indicted for the offense of aggravated possession of stolen firearms (720 ILCS 5/16-16.1(a)(1) (West 2008)) and entered a negotiated guilty plea. On appeal, defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because
he was not informed by the trial court or trial counsel of potential immigration consequences of his conviction (No. 3-09-0464). He also appeals from the dismissal of his postconviction petition, claiming that we should remand for further proceedings because postconviction counsel failed to
include allegations that defendant would not have pled guilty if he had been properly informed of the immigration consequences (No. 3-10-0802). We reverse the order denying defendant's motion to withdraw his plea and remand for further proceedings in appeal No. 3-09-0464. We dismiss
appeal No. 3-10-0802.

4.  Criminal Law/Fees & fines: Affirmed in part and remanded with directions.: Here, the evidence established that the drugs found on defendant's person were bundled in five separate packages. Defendant told Barisch he often buys and “re-ups” with heroin. Barisch explained to the jury that the term “re-up” involves purchasing and then distributing the drugs to others. Further, Barisch testified that defendant stated he was going to sell the packages of heroin for $10 each.  Based on this record, we conclude the evidence was sufficient to allow a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  Since the trial court’s written order, in this case, does not recite a sum certain, we are unable to discern if the court intended to order this defendant to pay the costs as calculated by the clerk or in some other amount not reflected in any written order contained in this record. Further, it is unclear from this record whether defendant received a copy of the clerk's calculations at the time of sentencing or shortly thereafter. Moreover, the clerk's summary contains errors and omissions which, once corrected, could increase the monetary penalties required by statute by several hundred dollars. Wright, J.  

No. 2014  IL App (3d) 120240    People v. Williams    Filed 1-23-14   (RJC)

Defendant, Mark Williams, was convicted of possession of a controlled substance with intent to deliver (720 ILCS 570/401(d)(i) (West 2010)), and sentenced to 5 ½ years in prison. Defendant appeals, arguing: (1) the State failed to prove him guilty of the offense beyond a reasonable doubt; and (2) certain fines and fees were improper. We remand for the court to correctly calculate the fines, fees, assessments, costs and other charges ordered by the court as part of defendant’s sentence and otherwise affirm.

3 Appellate Cases Posted 1-22-14

1.  Discovery/contempt: Vacated and remanded: In this case, defendants made a good-faith effort to challenge the trial court's discovery order as plaintiff acknowledges and it is therefore appropriate to vacate the trial court’s contempt order. Defendants’ argument that plaintiff violated Rule 137 is not properly before us, and we therefore strike it. In sum, although we find the discovery order valid and the continuance of the motion for summary judgment appropriate, we vacate the contempt order of the Du Page County circuit court and remand the cause. Spence, J.

No. 2014  IL App (2d) 121293    Jiotis v. The Burr Ridge Park District    Filed 1-22-14   (RJC)

Defendants, the Burr Ridge Park District (Park District) and John Doe, and their counsel, contemnor Edward F. Dutton,1 appeal the trial court’s October 3, 2012, order (the discovery order) continuing their summary judgment motion in order for plaintiff, Steve Jiotis, to conduct discovery prior to responding to their motion. Defendants appealed this order under Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010), after the trial court granted their motion to be held in civil contempt for refusal to comply with the discovery order. Defendants appeal the contempt order and argue that plaintiff violated Illinois Supreme Court Rule 137 (eff. July 1, 2013). For the reasons stated herein, we determine that the trial court did not abuse its discretion in entering the discovery order. We do not address defendants’ Rule 137 argument, because it is not properly before us. Further, we vacate the contempt order and remand for further proceedings.

2.  DCFS/expungements: Reversed: The agency failed to prove by a preponderance of the evidence the existence of a substantial risk of physical injury. In the absence of any evidence of a substantial risk of injury, beyond speculation based on hypothetical situations, we are unable to hold that the agency showed that abuse occurred under the Act. Accordingly, we reverse. Because we reverse on the determination that the agency failed to prove abuse under the Act, we do not address whether it also failed to prove that the restraint was unreasonable under the Code. Hudson, J.

No. 2014  IL App (2d) 130042   Shilvock-Cinefro v. The Department of Children and Family Services    Filed 1-22-14   (RJC)

Plaintiff, Karen Shilvock-Cinefro, appeals the trial court’s judgment upholding an order of the Illinois Department of Children and Family Services (the agency) that denied her request for the expungement of an indicated report of child abuse. We reverse because there was no evidence that abuse occurred under section 3(b) of the Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/3(b) (West 2010)).

3.  Insurance/endorsements: Affirmed: Here, the Auto-Owners' umbrella policy in this case provided excess third-party liability coverage and unambiguously excluded excess coverage for the insureds' personal injuries. The policy's grant of coverage was for excess third-party liability claims. The following form endorsement at issue unambiguously excluded excess coverage for the insureds' personal injuries.  Even if the endorsement was intended to create excess coverage to "follow form" of the insurance coverage listed in Schedule A, excess uninsured motorist coverage would not have been included. Holdridge, J.

No. 2014  IL App (3d) 120937   Huizenga v. Auto-Owners Insurance   Filed 1-22-14   (RJC)

The plaintiffs, David and Brenda Huizenga, appeal from the trial court's ruling in favor of the defendant, Auto-Owners Insurance (Auto-Owners), and against the plaintiffs (the insureds) on their respective motions for summary judgment. On appeal, the insureds contend that the trial court erred in finding that an endorsement in their umbrella policy with Auto-Owners did not provide excess uninsured motorist coverage for their personal injuries. We affirm the order of the trial court.

5 Appellate Cases Posted 1-21-14

1.  Medical Negligence: Reversed and Remanded: The "lost chance" theory refers to the injury sustained by a plaintiff whose medical providers are alleged to have negligently deprived the plaintiff of a chance to survive or recover from a health problem, or where the malpractice has lessened the effectiveness of treatment or increased the risk of anunfavorable outcome to the plaintiff."  To make this showing, a plaintiff is not required to prove that she would have had a greater than 50% chance of survival or recovery absent the alleged malpractice.   Nor is the plaintiff required to prove that "a better result would have been achieved absent the alleged negligence of the doctor."  In ruling on a motion for a directed verdict "a court does not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather, it may only consider the evidence, and any inferences therefrom, in the light most favorable to the party resisting the motion." Because a trial court cannot weigh or judge the credibility of witnesses in deciding amotion for a directed verdict, the reviewing court need not give substantial deference to the trial court's ruling. Holdridge, J.

No. 2014  IL App (3rd) 120392   Hemminger v. LeMay   Filed 1-21-14   (LJD)

In this medical malpractice action, the plaintiff, Daniel R. Hemminger (Hemminger),sued defendants Jeffrey LeMay, M.D. and Sterling Rock Falls Clinic, Ltd. seeking damages forthe death of his wife, Tina. Hemminger alleged that the defendants' negligent failure to diagnoseTina's cervical cancer in a timely fashion proximately caused her death by lessening her chanceof survival. The trial court granted the defendants' motion for a directed verdict, finding that Hemminger failed to present evidence sufficient to establish that Dr. LeMay's negligence
proximately caused Tina's death under a lost chance of survival theory. This appeal followed.

2.  Medical Negligenmce: Reversed and Remanded: The burden on the party seeking a judgment notwithstanding the verdict is a high one as the motion may be granted only under a very limited set of circumstances--when all of the evidence, viewed in the light most favorable to the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.  In ruling upon a motion for new trial, on the other hand, the trial court will weigh the evidence and will set aside the jury's verdict and order a new trial only if the verdict is against the manifest weight of the evidence.  A verdict is against the manifest weight of the evidence only if it is clear from the record that the jury should have reached the opposite conclusion or if the jury's findings are unreasonable, arbitrary, and not based upon any of the evidence presented. In ruling upon a motion for new trial, on the other hand, the trial court will weigh the evidence and will set aside the jury's verdict and order a new trial only if the verdict is against the manifest weight of the evidence.  A verdict is against the manifest weight of the evidence only if it is clear from the record that the jury should have reached the opposite conclusion or if the jury's findings are unreasonable, arbitrary, and not based upon any of the evidence presented.  A physical object that has a direct part in the incident at issue such that it has probative value in and of itself is considered to be real evidence.  On the other hand, a physical object that does not have a direct part in the incident at issue and is only being used to help explain or illustrate to the trier of fact the verbal testimony of a witness or other evidence is considered to be demonstrative evidence.  Demonstrative evidence has no probative value in and of itself and is merely admitted or used as a visual aid to the trier of fact.  The use of demonstrative evidence, therefore, is looked upon favorably by the courts because it allows the trier of fact to have the best possible understanding of the matters before it. However, the same human factor that makes demonstrative evidence valuable--that people learn and understand better what they see, rather than what they hear--also makes it possible for parties to abuse the use of demonstrative evidence by giving a dramatic effect or undue or misleading emphasis to some issue, at the expense of others.  Carter, J.

No. 2014  IL App (3rd) 120597   Sharbono v. Hilborn  Filed 1-21-14   (LJD)    

Plaintiff, Lee Ann Sharbono, filed an action for medical negligence against defendant, Dr. Mark Hilborn, a board-certified radiologist, alleging that defendant had failed to timely diagnose her breast cancer. After a trial, the jury found for defendant and against plaintiff. Plaintiff filed posttrial motions for judgment notwithstanding the verdict, for new trial, and for rehearing, all of which the trial court denied. Plaintiff appeals and we reverse and remand.

Personal 3. Jurisdiction: Vacated in Part and Reversed in Part:  When seeking jurisdiction over a nonresident defendant, the plaintiff has the burden of establishing a prima facie case for jurisdiction. This court applies the de novo standard of review when the trial court decides the issue of personal jurisdiction solely on the basis of documentary evidence, as the trial court did in this case.  In order for personal jurisdiction to comport with federal due process requirements, the defendant must have "minimum contacts" with the forum state such that maintaining the suit in the forum state does not offend "traditional notions of fair play and substantial justice.  The minimum contacts required for personal jurisdiction must be based on some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.  Federal due process analysis requires a three-prong analysis in which the court considers whether: (1) the nonresident defendant had minimum contacts with the forum state such that there was fair warning that the defendant may be haled into court in the forum state; (2) the action arose from, or is related to, the defendant's contacts with the forum state; and (3) it is reasonable to require the defendant to litigate in the forum state.  Minimum contacts and general jurisdiction discussed.  In determining whether a defendant has purposefully availed himself of the benefits of Illinois law in forming the contract, the court considers the following factors: (1) who initiated the transaction; (2) where the contract was formed; and (3) where the contract was performed. Id. Further, a choice-of-law provision is relevant, but is not by itself a sufficient basis to determine jurisdiction.  Apparent agency principles discussed and analyzed as well as ratification by the principal.    Cunningham, J.

No. 2014  IL App (1st) 120306  Graver v. Pinecrest Volunteer Fire Department  Filed 1-21-14   (LJD)   

On June 27, 2011, a default judgment was entered against defendant Jerry Moat, a/k/a Gerald H. Moat (Moat)1, and defendant-appellant Pinecrest Volunteer Fire Department, a/k/a Pinecrest Volunteer Fire Department, Inc., a foreign not-for-profit corporation (Pinecrest VFD). On September 10, 2012, Pinecrest VFD filed a motion to vacate the default judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). The motion alleged that the default judgment should be vacated as to Pinecrest VFD because the trial court lacked personal jurisdiction over Pinecrest VFD, and Pinecrest VFD had a meritorious defense and exercised due diligence in bringing its motion to vacate. On September 24, 2012, the circuit court of Cook County partially granted the motion to vacate the default judgment, finding that Pinecrest VFD showed that it had a meritorious defense and had also shown due diligence.

4. Juvenile COurt/Abuse & Neglect: Reversed and Remanded: Procedures by which a child may be removed from parents set forth in opinion.  Three steps listed and their requiremnts set out.  By its very nature, a temporary custody order does not confer permanent custody, but only provides temporary custody in anticipation of an order determining permanent custody to be entered later in the proceedings.  Moreover, even if the order granting Scott custody of Ashli could be characterized as a permanent custody order, the court could not enter such an order at this stage in the proceedings. After a minor is placed in temporary custody, the court shall conduct an adjudicatory hearing to determine if the minor is abused or neglected.    Simon, J.

No. 2014  IL App (1st) 132504  In re Ashli T.    Filed 1-21-14   (LJD)   

Ashli T., through the office of the public guardian, and the State appeal from orders of the circuit court of Cook County granting sole legal and physical custody of Ashli to her father, Scott T., and dismissing the petition for adjudication of wardship filed as to Ashli by the State. On appeal, the public guardian and the State contend that the court did not have authority to grant permanent custody of Ashli to Scott without conducting adjudicatory and dispositional hearings and that the court’s finding that dismissal of the petition for adjudication of wardship was in Ashli’s best interest is clearly erroneous. For the reasons that follow, we vacate the order dismissing the petition for adjudication of wardship and closing the proceedings and remand the matter to the circuit court for further proceedings consistent with the Juvenile Court Act of 1987
(Juvenile Court Act) (705 ILCS 405/2-1 et seq. (West 2012)).

5.  Juvenile Court/Abuse and Neglect: Affirmed: December 16, 2013, the trial court issued a supplemental order setting forth the factual basis for its finding of unfitness. We now affirm the judgment of the trial court.   The State must prove that the parent is unfit.  If the court finds the parent unfit, the State must then show that termination of parental rights would serve the child’s best interests. Section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2012)) lists various grounds under which a parent may be found unfit. With respect to the first ground of unfitness, section 1(D)(b) of the Adoption Act provides that a parent may be found unfit for “[f]ailure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare.” 750 ILCS 50/1(D)(b) (West 2012). Since the language of the statute is in the disjunctive, any one of the three individual elements, i.e., interest or concern or responsibility, may be considered by itself as a basis for unfitness.   Hudson, J.

No. 2014  IL App (2nd) 130558-B  In re B'Yata I.  Filed 1-21-14   (LJD)   

In May 2013, the circuit court of Winnebago County found respondent, Kenyatta B., to be an unfit parent with respect to her minor daughter, B’yata I., on three separate grounds. The court later concluded that the termination of respondent’s parental rights was in B’yata’s best interests. Respondent appealed. In an opinion filed on November 20, 2013, we concluded that the trial court’s failure to set forth a written or oral factual basis for its finding of unfitness prevented this court from conducting a meaningful review of its decision. In re B’yata I., 2013 IL App (2d) 130558, && 30-40. Accordingly, we retained jurisdiction over the appeal and ordered a limited remand, strictly for the entry of the express factual basis supporting the trial court=s finding of unfitness.  On December 16, 2013, the trial court issued a supplemental order setting forth the
factual basis for its finding of unfitness. We now affirm the judgment of the trial court.

2 Appellate Case Posted 1-17-14

1.  Criminal Law: Reversed and Remanded:  It is improper for a prosecutor to ask a defendant his opinion on the veracity of other witnesses, as such questions intrude on the jury's function to determine witness credibility and also demean and ridicule the defendant.  While the practice may be deemed harmless error when evidence of a defendant's guilt is overwhelming, reversal is warranted when the evidence is closely balanced and the credibility of the witnesses is a crucial factor underlying the jury's determination of guilt or innocence.  In light of number of times the prosecutor made improper inquiries, we believe the trial court's actions were insufficient to remove the prejudice caused by the prosecutor's questions.Puccinski, J.

No. 2014  IL App (1st) 120932   People v. Schaffer  Filed 1-17-14   (LJD)

Following a jury trial, defendant Matthew Schaffer was convicted of aggravated criminal sexual assault, home invasion, and armed robbery. The trial court imposed a 20-year term of imprisonment for aggravated criminal sexual assault, a consecutive 10-year term for home invasion, and a concurrent 10-year term for armed robbery, for a total of 30 years in prison. On appeal, defendant contends that the State improperly cross-examined him regarding other witnesses' credibility and prejudiced his right to a fair trial. Defendant further argues that other questions and comments by the prosecutor prejudiced him. For the reasons that follow, we reverse and remand for a new trial.

2. Criminal Law: Affirmed: The order issued by the supreme court simply directed this court to reconsider its decision in light of Lara. We cannot proceed beyond its mandate. Therefore, we deny defendant's petition for rehearing. What follows is our opinion from September 12, 2013.  2014 Ill. App. (3rd) 100151.   McDade, J.

No. 2014  IL App (3rd) 100151-B  People v. Hurry  Filed 1-17-14   (LJD)

Following the filing of our original opinion in this cause, the supreme court issued a supervisory order directing this court to vacate its judgment and reconsider the case in light of its decision in People v. Lara, 2012 IL 112370. See People v. Hurry, No. 114348 (Mar. 27, 2013 (supervisory order)). In order to assist this court in complying with the supreme court's instructions, we issued a minute order requesting that the parties rebrief the issues "in light of People v. Lara."  Both parties filed briefs. Defendant's brief modified the issues and raised new arguments unrelated to Lara. On September 12, 2013, this court issued an opinion that reconsidered the case in light of Lara but did not address defendant's new or modified arguments unrelated to Lara.  We affirm defendant's convictions on counts I, II, and III; reduce his convictions on counts IV and V from predatory criminal sexual assault to aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 2006)); reverse his convictions on counts VI through X; and remand the case for resentencing on counts IV and V.

1 Appellate Case Posted 1-15-14

1.  Criminal Law: Affmed:  When a defendant challenges the sufficiency of the evidence to sustain his or her conviction, the relevant question on review is whether, after considering the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. A conviction only will be overturned where the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt.  The element of “intent to deliver” is usually proved by circumstantial evidence because knowledge and possession of drugs are rarely subject to direct proof.  Several factors have been considered by Illinois courts as probative of intent, including the manner in which the drugs are packaged; the possession of weapons; and the possession of large amounts of cash.  Hyman, J.

No. 2014  IL App (1st) 120932   People v. Branch Filed 1-15-14   (LJD)

A jury convicted defendant Earnest Branch of possession of a controlled substance with intent to deliver under section 401(c)(1) of the Illinois Controlled Substances Act (720 ILCS 570/401(c)(1) (West 2010)). He was sentenced to six years in prison. On appeal, Branch contends that the State failed to prove that he intended to deliver the narcotics found in his possession. We affirm. The evidence sufficiently supports Branch's conviction for possession of a controlled substance with intent to deliver.

3 Appellate Case Posted 1-13-14

1. Criminal Law:Reversed: The investigatory stop of the defendant was based upon the reasonable suspicion that the defendant committed a crime and was justified.  If a protective search goes beyond what is necessary to determine if a suspect is armed, it is no longer valid under Terry and any fruits of the search will be suppressed.  Measured by an objective standard, Officer had no reason to believe that the defendant was armed and dangerous. Thus, the trial court erred in denying the defendant’s motion to quash and suppress. O'Brien, J.

No. 2014 IL App (3d) 120338   People v. Porter    Filed 1-13-14   (RJC)

The defendant, Omar Porter, was convicted of armed violence (720 ILCS 5/33A-2(a) (West 2010)) after a stipulated bench trial, following the denial of his motion to quash his arrest and suppress evidence. The defendant appealed. Reversed.

2.  Pension:  Affirmed:  An "administrative decision" is "any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency." 735 ILCS 5/3-101 (West 2010). "Decisions of the Board of Trustees shall be final administrative decisions subject to the provisions of the Administrative Review Law ***."   An "administrative decision" is "any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency." 735 ILCS 5/3-101 (West 2010). "Decisions of the Board of Trustees shall be final administrative decisions subject to the provisions of the Administrative Review Law ***."  An administrative agency may allow a rehearing, or modify and alter its decisions, only when authorized to do so by statute").  Knecht, J.

No. 2014 IL App (4th) 130125    Sharp v. The Board of Trustees of the State Employees' Retirement System   Filed 1-13-14   (RJC)

The trustees of SERS (collectively, the Board), approved Sharp's monthly pension of $3,171.24. In February 2012, the Board notified Sharp it had computed his monthly pension using the wrong formula (3% rather than 2.2%) resulting in an overpayment of $5,874.21. The Board informed Sharp his monthly pension would decrease to $2,496.16 and arrangements to collect the overpayment would be forthcoming.  Sharp appealed to the SERS executive committee (Committee). Following an April 2012 hearing, the Committee recommended the appeal be denied. In July 2012, the Board ratified the Committee's recommendation. Sharp filed an action for administrative review in the circuit court of Sangamon County. Following a January 2013 hearing, the circuit court reversed the Board, finding it lacked authority to reconsider its earlier pension calculation.
¶ 3 Defendants appeal. Plaintiff cross-appeals seeking attorney fees. We affirm.

3. IL Municipal Code/Aff. defenses/SOL: Reversed: In the present case, defendants have filed no complaint. They have "commence[d]" no "action." 65 ILCS 5/7-1-46 (West 2002). Instead, they have raised the invalidity of the annexations purely by way of defense.  Defendants did not file a stale claim. Statutes of limitations bar stale claims, not defenses.   Appleton, J. with Turner, J. dissenting.

No. 2014 IL App (4th) 130255    Stivers v. Bean    Filed 1-13-14   (RJC)

The Village of Forsyth (village) and the owners of 10 parcels of land brought an action for mandamus against Stephen Bean in his capacity as the Macon County clerk and against the board of library trustees of the Barclay Public Library District (district), seeking to compel Bean to disconnect the parcels from the district because the village, which had a public library of its own, had passed ordinances annexing the parcels. Defendants pleaded affirmative defenses, the first two of which raised the village's failure to follow certain statutory procedures for annexing territory. (We do not reach the remaining affirmative defenses.) Plaintiffs moved for summary judgment on the ground that the expired period of limitation in section 7-1-46 of the Illinois Municipal Code (65 ILCS 5/7-1-46 (West 2002)) barred defendants from challenging the annexations, even in a defensive posture. The trial court granted plaintiffs' motion for summary judgment. Defendants appeal. Reversed.  

1 Appellate Case Posted 1-10-14

1. Criminal Law: Affirmed: While it is the duty of the probation officer to prepare a presentence report, it is the duty of the parties to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in the presentence report.  Ordinarily, forfeiture bars a postconviction claim that could have been, but was not, raised on direct appeal.  Because defendant entered a partially negotiated plea, he could not have moved to reconsider his sentence on the sole ground that it was excessive or sought appellate relief on that ground. The common law doctrine of waiver bars a claim that could have been presented previously. Waiver is distinct from forfeiture, however. While forfeiture applies to issues that could have been raised but were not, waiver is the voluntary relinquishment of a known right. . In Blair, this court noted, ‘ “[w]hereas forfeiture is the failure to make the timely assertion of the right, waiver is the intentional relinquishment or abandonment of a known right. ” ’   Birkett, J.

No. 2014 IL App (2d) 111314    People v. Tapiar    Filed 1-10-14   (RJC)

Defendant, Juan J. Tapia, appeals a judgment denying his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). The petition claimed that the attorney who represented defendant when he pleaded guilty to attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)) had been ineffective for failing to correct an error in the presentence investigation report (PSI) on which the trial court relied in sentencing defendant to 15 years’ imprisonment. We hold that defendant has forfeited the issue and affirm.

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