Illinois Supreme and Appellate Court Case Summaries
    

By  Robert Clifford( RJC) ,Timothy J. Joyce(TJJ) and Jean M. Cocozza(JMC),

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People v. Garcia, 2015 IL App (1st) 131180

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2015 IL App (5th) 120401

1 Appellate Case Posted 6-13-16

1.  Criminal Law: Reversed and Remanded:   Plain error doctrine discussed.  After affirmance in 2015, the Appellate Court, on a petition for rehearing, found that  People v. Martin required reversal.  The court discussed structural error requiring automatic reversal.  Holdridge, J.


No. 2016 IL App (3rd)130511  People v. Sanders Filed 6-10-16 (CBB)


A jury found the defendant, Dominick M. Sanders, guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2010)), aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2010)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(1) (West 2010)), aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2010)), and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)). After a hearing, the trial court sentenced the defendant to 45 years' imprisonment for first degree murder, plus a 25-year firearm enhancement, and a consecutive term of 25 years' imprisonment for aggravated battery with a firearm. The court also sentenced the defendant to concurrent terms of 10 years' 2 imprisonment for aggravated discharge of a firearm and 7 years' imprisonment for aggravated unlawful use of a weapon.1 No sentence was entered on the unlawful possession of a weapon by a felon count. ¶ 2 On appeal, the defendant the defendant argues that: (1) the trial court erred when it considered a factor inherent in the offense during sentencing, overemphasized the defendant's nonviolent criminal history, and failed to consider the defendant's relative youth during sentencing; and (2) his DNA fee must be vacated because his DNA was previously registered, and his cost assessments are subject to multiple errors.  On July 20, 2015, we affirmed the defendant's prison sentence, vacated his DNA fee and the remaining costs and remanded the cause with directions for the trial court to expressly impose any and all fines and the circuit clerk to specifically impose all fees in a written order. Subsequently, the defendant filed a petition for rehearing arguing that our affirmance of his prison sentences was in error because, under People v. Martin, 119 Ill. 2d 453, 458-60 (1988), the consideration of a factor inherent in the offense is reversible under the second prong of the plain error analysis. We granted rehearing.

4 Appellate Cases Posted 6-10-16

1. Utility Regulation: Affirmed: Proposed "net metering service" proposed by community group was not a "tariffed service" under Public Utilities Act, and consequently the state Commerce Commission was prohibited from requiring electric company to offer such service, and Commission properly granted electric company's motion to dismiss petition requesting such. Hoffman, J.

No. 2016 IL App (1st) 152936  The Citizens Utility Board v. Illinois Commerce Commission  Filed 6-10-16 (TJJ)


The Citizens Utility Board (CUB) and Environmental Defense Fund (EDF) (collectively referred to as CUB/EDF) filed a joint petition with the Illinois Commerce Commission (Commission), requesting that the Commission initiate a proceeding to approve  a communityowned solar pilot program utilizing virtual net metering in the service territory of the Commonwealth Edison Company (Edison) and order a modification to Edison's tariff to extend net metering to customers who collaboratively  participate in the operation of eligible renewable electrical generating facilities that are not located on their own premises. Edison filed a motion to dismiss the petition. The Commission granted the motion and denied CUB/EDF's subsequent application for  rehearing. CUB/EDF filed a timely petition for direct review of the Commission's orders with this court. For the reasons that follow, we affirm the orders of the Commission.

2. City Licenses: Affirmed: Plaintiff landlord, who owed five-figure sum to municipality for ordinance violations, was not entitled to issuance of licenses permitting rental properties to be leased, until debt to municipality was first paid, and city ordinance requring such did not constitute an unconstitutional "taking." Carter, J.

No. 2016 IL app (3d) 150655  Willie Pearl Burrell Trust v. City of Kankakee  Filed 6-10-16 (TJJ)


Plaintiff, the Willie Pearl Burrell Trust, appeals from the trial court's granting of summary judgment in favor of defendant, the City of Kankakee. Plaintiff contends that certain genuine issues of material facts remain in regard to its mandamus claim.  Additionally, plaintiff argues that it was itself entitled to summary judgment on its constitutional claims. Specifically, plaintiff maintains that defendant violated its right to due process by not providing notice and a hearing prior to its nonrenewal of  plaintiff's rental licenses. Plaintiff also claims defendant imposed an unconstitutional condition upon the renewal of those licenses. We affirm.

3. Criminal Law: Reversed and remanded: Trial court dismissal of post-conviction petition at second stage reversed for trial court's failure to give defendant an opportunity to respond to State's motion to dismiss. Pope, J.

No. 2016 IL App (4th) 150192  People v. Al Momani  Filed 6-10-16 (TJJ)


On February 24, 2014, defendant, Baha'Eddin Q. Al Momani, filed a pro se postconviction petition, which was later amended by private counsel with permission of the trial court on May 30, 2014. On February 12, 2015, the trial court granted the State's  motion to dismiss defendant's petition. On appeal, defendant argues the trial court erred in dismissing his postconviction petition because (1) he was not provided notice and an opportunity to be heard on the State's motion, (2) his postconviction petition  was timely, (3) he did not waive or forfeit any issues, and (4) his petition stated a cause of action. We reverse the court's dismissal of defendant's postconviction petition because the court erred in granting the State's motion before defendant had notice and  an opportunity to be heard. We reverse and remand for defendant to be given the opportunity to respond to the State's motion to dismiss.

4. Criminal Law/Traffic: Reversed and remanded: Provisions of Municipal Code and Code of Criminal Procedure permitted officer to arrest defendant for speeding in adjoining municipality, and trial court decision to rescind statutory summary suspension for officer's "lack of jurisdiction" reversed. Pope, J.

No. 2016 IL App (4th) 150572  People v. Reynolds  Filed 6-10-16 (TJJ)


On May 5, 2015, defendant, Jess M. Reynolds, was pulled over for driving 61 miles per hour in an area with a 35-mile-per-hour speed limit. After an investigation and defendant's refusal to submit to a Breathalyzer, police officer Ricky Cathers concluded  Reynolds was under the influence of alcohol and charged her with driving under the influence of alcohol. As part of the charge, defendant's driver's license was summarily suspended for 12 months. Defendant petitioned to rescind her statutory summary  suspension (petition to rescind), arguing, among other claims, the police officer lacked jurisdiction to arrest her. The circuit court found the officer lacked jurisdiction and granted the petition to rescind. The circuit court reserved ruling on the remaining issues in the case pending an appeal on jurisdiction. This appeal followed. Reversed.

4 Appellate Cases Posted 6-9-16

1. Criminal Law: Affirmed: Trial court did not abuse its discretion in denying defense request for continuance where defense counsel had previously demanded trial and "new" evidence was of such a type that defendant was previously aware of its existence; trial court did not err in refusing to let defense counsel cross-examine witness about factual basis of underlying felony conviction admitted per Lynch; and trial court properly declined to answer jury question. Mason, J.

No. 2016 IL App (1st) 140785  People v. Gibbs  Filed 6-1-16 (TJJ)


Following a 2014 jury trial, defendant Tyrell Gibbs was convicted of one count of aggravated battery against David Winters, for which he was sentenced to two years of felony probation and 40 hours of community service. On appeal, Gibbs raises  numerous contentions of error beginning with the trial court's denial of his motion for a three-week continuance on the day of trial. He next contends that the court erred in excluding live testimony of Winters' prior conviction for domestic battery and  excluding as hearsay the responding officers' testimony regarding their interviews with Gibbs, his girlfriend, and the victim. Finally, Gibbs argues that the court erred in its answer to the jury's question on the permissible use of force in defense of property.  Finding no error, we affirm.

2. Property Taxes: Affirmed: Trial court properly denied claim by county township road district for "permanent" road-fund tax, where district's referendum, designed to evince voter support for the tax, did not comply with provisions of Property Tax Extension Limitation Law. Jorgensen, J.

No. 2016 IL App (2d) 150917  The Hampshire Township Road District v. Cunningham  Filed 6-9-16 (TJJ)


Plaintiff, the Hampshire Township Road District (District), sought to compel defendant, John A. Cunningham, in his official capacity as the Kane County clerk (clerk), to extend a permanent road-fund tax authorized by the electors and levied by the  township pursuant to section 6-601 of the Illinois Highway Code. The clerk refused to permit the District to levy the tax, asserting that it may be authorized only following a new-rate referendum pursuant to section 18-190(a) of the Property Tax Extension Limitation Law (PTELL), which, in turn, requires a direct referendum pursuant to the PTELL’s ballot requirements and article 28 of the Election Code. On cross-motions for summary judgment, the trial court granted  the clerk’s motion and denied the District’s motion. The District appeals. We affirm.

3. Criminal Law: Reversed and remanded: Trial court erroneously denied defendant's motion to dismiss for failure to comply with the Speedy Trial Act; defendant, in custody in one county and sentenced, but not yet sent, to the IDOC, was not subject to 160-day period under Intrastate Detainers Act, but the 120-day period under Speedy Trial Act. Lytton, J.

No. 2016 IL App (3d) 140235  People v. Smith  Filed 6-9-16 (TJJ)


Defendant, Rickey D. Smith, appeals his aggravated criminal sexual abuse conviction arguing that the trial court erred in denying his motion to dismiss for violation of his speedy trial rights. We reverse and remand with directions for the trial court to  vacate its order denying the motion to dismiss and to enter judgment dismissing the charges.

4. Parental Rights: Affirmed: Trial court did not err in terminating mother's parental rights in case where mother regularly used cannabis, refused to engage in treatment over a long period of time, and did not cooperate in providing drug drops; counseling records properly introduced into evidence as they were not generated in connection with litigation; and mother's request for expert witness fees relating to drug drops properly denied. Lytton, J.

No. 2016 IL App (3d) 160010  In re K.I.  Filed 6-9-16 (TJJ)


Respondent, Torie I., appeals from the judgment of the circuit court finding her to be an unfit parent of her minor child, K.I., under section 1(D)(m)(ii) of the Adoption Act and terminating her parental rights. Respondent claims that the trial court's finding  that she failed to make reasonable progress toward the return home of her child within the relevant nine-month period was against the manifest weight of the evidence. She also argues that the trial court abused its discretion in (1) admitting respondent's counseling records, (2) denying her motion for payment of expert witness fees, (3) refusing to find that the State violated discovery, (4) allowing the foster mother to testify at the best interest hearing, and (5) terminating her parental rights without finding  that the State had proved termination was in K.I.’s best interest by a preponderance of the evidence. We affirm.

1 Appellate Case Posted 6-8-16

1. Criminal Law: Affirmed: Defendant, a passenger in a lawfully stopped car, was properly searched where drug sniffing dog alerted to car, narcotics paraphenalia was found in the car, and other persons in car told police that defendant had drugs "in his buttocks." Pope, J.

No. 2016 IL App (4th) 140469  People v. Pettis  Filed 6-8-16 (TJJ)


On April 16, 2014, defendant, Dejermaine J. Pettis, was convicted of unlawful possession of a controlled substance with intent to deliver after a stipulated bench trial. Defendant appeals, arguing the trial court erred by  denying his motion to suppress evidence. We affirm.

3 Appellate Cases Posted 6-7-16

1. Criminal Law: Reversed and remanded: Trial court erred in granting State motion to deny post-conviction petition at close of petitioner's evidence at third stage evidentiary hearing in case where trial witness recanted trial testimony and claimed that his trial testimony was coerced by police detective. Simon, J.

No. 2016 IL App (1st) 133493  People v. Serrano  Filed 6-7-16 (TJJ)


This appeal is taken from a directed finding that was entered in a postconviction proceeding stemming from a murder case 22 years ago. The principal witness from the trial has since submitted an affidavit that the trial testimony he gave was “false in all  respects” and it was coerced by the detectives investigating the murder. A number of other witnesses have provided testimony that they were coerced to falsely implicate people in crimes by the same detectives. Because we find that, after reviewing the evidence in the light  most favorable to petitioner, Serrano has met his burden to go forward on an actual innocence claim, we reverse and remand.

2. Criminal Law: Reversed and remanded: Trial court erred in granting State motion to deny post-conviction petition at close of petitioner's case in third stage evidentiary hearing where trial witness recanted trial testimony and claimed that his trial testimony was coerced by police detective. Simon, J.

No. 2016 IL App (1st) 133726  People v. Montanez  Filed 6-7-16 (TJJ)


This appeal is taken from a directed finding that was entered in a postconviction proceeding stemming from a murder case 22 years ago. The principal witness from the trial has since submitted an affidavit that the trial testimony he gave was “false in all  respects” and it was coerced by the detectives investigating the murder. A number of other witnesses have provided testimony that they were coerced to falsely implicate people in crimes by the same detectives. Because we find that, when the evidence is viewed in the light most favorable to petitioner, Montanez has met his burden to go forward on an actual innocence claim, we reverse and remand.

3. Juvenile Delinquency: Sentence vacated and remanded: Sentence remanding juvenile to Department of Corrections vacated where trial court failed to expressly hear and consider evidence regarding services available within the Department that could meet the juvenile's needs. Nevile, J.

No. 2016 IL App (1st) 153257  In re Justin F.  Filed 6-7-16 (TJJ)


This delinquency proceeding involves the interpretation of the Juvenile Court Act of 1987. The trial court found a minor, Justin F., guilty of aggravated assault and aggravated unlawful use of a weapon. At the sentencing hearing, the parties presented no  evidence concerning the services available within the Department of Juvenile Justice (DoJJ) that could meet Justin's needs. The court committed Justin to the custody of DoJJ. We hold that the Act requires the court to hear and consider evidence concerning  services available to minors committed to DoJJ and the minor's particular needs before committing a minor to DoJJ. Accordingly, we vacate the order of commitment and remand for a new sentencing hearing.


2 Appellate Cases Posted 6-6-16

1. Criminal Law: Affirmed: Defendant's conviction for first degree murder upheld over claim that evidence was insufficient to prove that he did not act in self-defense, and trial counsel not ineffective for failing to argue for second degree murder in bench trial. Burke, J.

No. 2016 IL App (1st) 133389  People v. Spiller  Filed 5-27-1616 (TJJ)


The undisputed evidence in this case showed that on November 29, 1996, defendant, Giovanni Spiller, shot and killed Roberto Castillo on West Montrose Avenue, in Chicago, Illinois. Immediately after the shooting, defendant fled the jurisdiction for  several weeks. Prior to turning himself in to the police, defendant consulted with a criminal defense attorney, who gave defendant his opinion that defendant had a winning case. The state charged defendant by indictment with two counts of first degree  murder. Defendant posted bond ($200,000), with a condition of 24-hour electronic monitoring/home confinement. He cut off the monitoring bracelet and again fled the jurisdiction. He was captured in California 15 years later on March 13, 2012. Following  a bench trial, Judge James Obbish found defendant guilty of first degree murder and sentenced him to 35 years in the Illinois Department of Corrections (IDOC). Defendant alleges on appeal that the State failed to disprove his affirmative defense that he  acted in self-defense and that he received ineffective assistance of counsel because his attorney did not assert to the judge that he was guilty of the lesser mitigated offense of second degree murder. For the following reasons, the trial court’s judgment and  sentence are affirmed.

2. Criminal Law/DUI: Affirmed: Trial court properly denied defendant's pre-trial motion to suppress evidence grounded on the fourth amendment; trial court properly permitted police officer to testify as a "drug recognition expert"; and evidence sufficient to prove defendant guilty beyond a reasonable doubt of driving under influence of drugs. Gordon, J.

No. 2016 IL App (1st) 143352  People v. Ciborowski  Filed 6-3-16 (TJJ)


After a bench trial, defendant Paul Ciborowski was found guilty of driving under the influence of drugs (DUI) and of failing to reduce speed to avoid an accident, and was sentenced to two years of probation and a suspended sentence of 364 days’  incarceration. For the following reasons, we affirm the trial court’s denial of defendant’s motion to suppress and find that the trial court did not abuse its discretion when it allowed testimony from a drug expert witness to testify as to his opinion on the  effects of certain drugs on individuals. The parties refer to this expert as a drug recognition expert. Lastly, we conclude that there was sufficient evidence to support defendant’s conviction. Accordingly, we affirm defendant’s conviction.

1 Appellate Case Posted 6-3-16

1. Domestic Relations: Affirmed: Post-nuptial agreement incorporated into judgment of dissolution of marriage was not so one-sided in wife's favor as to be unconscionable, and in any event husband not entitled to relief under 2-1401 where he waited five months after judgment to make this claim, thus evincing a lack of due diligence. Holdridge, J.

No. 2016 IL App (3d) 140990  In re Marriage of Labuz  Filed 6-3-16 (TJJ)


The circuit court of Peoria County entered a final judgment for dissolution of marriage which dissolved the parties’ marriage and ordered respondent Jeffrey Labuz (Jeffrey) to pay maintenance and child support. A postnuptial agreement signed by the parties was incorporated into the judgment. Jeffrey did not contest the entry of the judgment at the time it was entered. However, approximately five months later, Jeffrey filed a motion to vacate the judgment for dissolution of marriage pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)), arguing that the parties’ postnuptial agreement was unconscionable. Jeffrey subsequently filed an amended motion to vacate the judgment which raised essentially the same  arguments. Karen filed a motion for summary judgment. After conducting an evidentiary hearing on Jeffrey’s motion, the circuit court denied the motion. Jeffrey filed a motion to reconsider, which the circuit court denied.

1 Appellate Case 06-02-16

1.  Freedom of Information: Affirm in part and Reversed in part:   “fields of data” in a database, which are what plaintiff is requesting here, are subject to FOIA. A public body may even be compelled to turn over an entire database to the extent that the information is not exempt from disclosure. J. Spence


No. 2016 IL App (2nd) 150836  Hites v. Waubonsee Community College Filed 06-02-16 (LJD)


 Plaintiff, Daniel Hites, requested data fromdefendant, Waubonsee Community College(WCC), pursuant to the Illinois Freedom of Information Act (FOIA. The data he sought were“raw inputs” for fields on WCC’s student registration forms, as well as zip codes of students in specified classes and the total numbers of students in specified classes.


2 Appellate Cases 06-01-16


1.  Libel and Slander: Certified question. Absolute privilege applies when a person reports on-campus sexual violenece to campus security.   Rule 308 appeal is limited to answering a certified question of law and is not intended to address the application of the law to the facts of a particular case.  Gnerally once a privileged statement is made to law enforcement any subsequent restatements made in furtherance of an investigation fall under this privilege. Privilege is an affirmative defense that may be raised in a motion for involuntary dismissal of a defamation action. Accordingly, statements are absolutely privileged when they are (1) made to law enforcement officials for the purpose of instituting legal proceedings.  J. Lavin


No. 2016 IL App (1st) 151435  Razavi v. Walkuski Filed 06-01-16 (LJD)

The plaintiff and defendants were students at the School of the Art Institute (SAIC), a private institute of higher education located in Chicago, Illinois. Defendants met plaintiff in the fall of 2011, when all three were living in an SAIC dormitory. In September 2013, Walkuski reported to the SAIC campus security director that plaintiff had sexually assaulted her on several occasions and was also stalking her. SAIC's campus security director then escorted Walkuski to the Chicago Police Department (CPD) where she filed an incident report pertaining to the sexual assault and stalking.

2.  Mental Heasalth Code: Affirmed: A defendant who has been acquitted of a crime by reason of insanity, his subsequent treatment is governed by section 5-2-4 of the Code, which authorizes his involuntary commitment in order to treat his mental illness and also to protect him and society from his potential dangerousness. Section 5-2-4(b) relates to inpatient mental health services after a person is acquitted by reason of insanity and says, in pertinent part, that thefacility director shall file treatment plan reports which may include a request for off-grounds pass privileges.  If evidence is presented, the burden of proof remains with the defendant and the defendant must prove by clear and convincing evidence that the entitlement to certain pass privilege s is proper.   J. Lavin


No. 2016 IL App (1st) 150555 People v. Bethke   Filed 06-01-16 (LJD)
.
The defendant  was subsequently found not guilty by reason of insanity of first degree murder and admitted to Elgin MentalHealth Center (EMHC) in the custody of the Illinois Department of Human Services. In 2012, defendant's treatment team filed a report in support of a petition for treatment plan review,  pursuant to sections 5-2-4(b) and (e) of the Unified Code of Corrections (Code) (730 ILCS 5/5-2-4(b), (e) (West 2010)), recommending that defendant be allowed "supervised off grounds pass privileges.  After second evidentiary hearing was held, and the trial court again denied defendant off-grounds pass privileges.

3 Appellate Cases Posted 5-26-16

1. Criminal Law: Reversed and remanded: In case where defendant's romantic relationship with complaining witness had ended 15 years before events giving rise to aggravated domestic battery charge, definition of "family or household member" unconstitutional as applied in this case, and conviction for aggravated domestic battery reversed; conviction for aggravated battery reversed, and remanded for new trial, as evidence of prior domestic violence incidents not admissible as to that charge. Lavin, J.

No. 2016 IL App (1st) 134012  People v. Gray  Filed 5-18-16 (TJJ)


Following a jury trial, defendant Matthew Gray was found guilty of aggravated battery and two counts of aggravated domestic battery. On appeal, he asserts that we must vacate his aggravated domestic battery convictions because his romantic relationship  with the victim ended 15 years before the offense. Specifically, he asserts that the statute defining "family or household members" is unconstitutional as applied to his relationship with the victim. Defendant also challenges (1) the sufficiency of the  evidence; (2) the admission of the victim's out-of-court statements; (3) the State's closing argument; and (4) the imposition of multiple convictions in violation of the one-act, one-crime doctrine. We agree that defendant's aggravated domestic battery  convictions are unconstitutional as applied to these facts, and reverse and remand for a new trial on aggravated battery.

2. Home Rule: Affirmed: County had authority both by State statute and under home rule powers to enact an ordinance relating to solid waste recycling. Cobbs, J.

No. 2016 IL App (1st) 143694  National Waste & Recycling Ass'n v. County of Cook  Filed 5-26-16 (TJJ)


The instant appeal arises from a complaint filed by plaintiff National Waste & Recycling Association,1 an Illinois not-for-profit corporation, which challenged certain provisions of the Cook County Solid Waste and Recycling Ordinance (SWRO), recently  enacted by defendant Cook County (County). Cook County Code of Ordinances § 30-776 (approved Jan. 15, 2014). The trial court granted summary judgment in favor of defendant, finding that the County had the authority to enact the SWRO, and as such,  it was enforceable. On appeal, plaintiff contends that the trial court erred in finding that the SWRO was enforceable because the County has neither home rule nor statutory authority to enact the challenged provisions of the SWRO, which renders it void as a matter of law. For the following reasons, we affirm.

3. Criminal Law: Affirmed in part, and remanded in part, with directions: Defendant's convictions for possession of drugs and a gun affirmed over claim that the evidence was insufficient to prove him guilty beyond a reasonable doubt, but certain fines reversed as having been imposed by the clerk rather than the judge, and certain fees improperly imposed on multiple counts. Knecht, J.

No. 2016 IL App (4th) 120721-B  People v. Warren  Filed 5-26-16 (TJJ)


Following a May 2012 trial, the jury found defendant guilty of unlawful possession with the intent to deliver a controlled substance, a Class 1 felony, and unlawful possession of a weapon by a felon, a Class 3 felony. In July 2012, the trial court sentenced  defendant to a 30-year term on count I and a concurrent 10-year term on count II. Defendant appealed, arguing (1) the State failed to produce sufficient evidence to sustain his conviction on count I; (2) he was entitled to a vacation of certain assessments  imposed pursuant to his conviction; and (3) he was entitled to additional sentencing credit for time served. On January 20, 2016, the supreme court denied defendant's petition for leave to appeal but issued a supervisory order (People v. Warren, No. 118322  (Ill. Jan. 20, 2016) (nonprecedential supervisory order)) directing this court to vacate our prior judgment and reconsider our decision in light of People v. Castleberry, 2015 IL 116916, 43 N.E.3d 932. In accordance with the supreme court's direction, we  vacate our prior judgment and reconsider in light of Castleberry to determine whether a different result is warranted. We again affirm in part, vacate in part, and remand with directions.

3 Supreme Court Cases Posted 6-16-16

1. Criminal Law: Appellate court reversed, circuit court affirmed: A prior felony conviction for aggravated unlawful use of weapon is properly cognizable as a prior felony conviction for the offense of unlawful use of a weapon by a felon, notwithstanding Aguilar decision finding such offense unconstitutional and void ab initio, where defendant had not sought to have prior conviction vacated at time he possessed weapon giving rise to later offense. Theis, J.

No. 2016 IL 117424  People v. McFadden  Filed 6-16-16 (TJJ)


This case involves an appeal from a conviction for unlawful use of a weapon by a felon (UUW by a felon). 720 ILCS 5/24-1.1(a) (West 2008). The conviction was based on defendant Onaffia McFadden’s possession of a firearm at a time when he had been  convicted of aggravated unlawful use of a weapon (AUUW). The appellate court vacated the conviction for UUW by a felon based on this court’s decision in People v. Aguilar, 2013 IL 112116, which declared section 24-1.6(a)(1), (a)(3)(A) of the AUUW  statute unconstitutional and void ab initio. 2014 IL App (1st) 102939. For the following reasons, we reverse that part of the appellate court judgment and reinstate defendant’s UUW by a felon conviction.

2. Criminal Law/Traffic: Circuit court reversed: Legislative prohibition of supervision for offense of speeding in excess of 40 mph over posted limit does not violate State constitution proportionate penalties clause. Karmeier, J.

No. 2016 IL 118599  People v. Rizzo  Filed 6-16-16 (TJJ)


At issue in this case is the constitutionality of the 2012 version of section 5-6-1(p) of the Unified Code of Corrections, which, in pertinent part, precluded a disposition of supervision for those who have violated the speed parameters of section 11-601.5 of  the Illinois Vehicle Code. Defendant was charged with, inter alia, a violation of section 11-601.5(b) and moved to dismiss that charge on constitutional grounds. The circuit court of Cook County ultimately entered an order concluding that section 5-6-1(p)’s  prohibition of supervision as a disposition in this context is “unconstitutional as violating the proportionate penalties clause, Article I, Section 11 of the Illinois Constitution.”  The State appealed. Because the circuit court’s judgment invalidated a statute of  the state of Illinois, the appeal was taken directly to this court pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013). We reverse the judgment of the circuit court and remand for further proceedings.

3. Property Taxes: Appellate court affirmed: State legislative act exempting land utilized as an airport from certain property taxes unconstitutional in violation of State constitutional prohibition against "special legislation." Karmeier, J.

No. 2016 IL 119704  Moline School District v. Quinn  Filed 6-16-16 (TJJ)


At issue on this appeal is the constitutionality of Public Act 97-1161 (eff. June 1, 2013), which amended the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2014)) to create an exemption from property taxes on leasehold interests and improvements on  real estate owned by the Metropolitan Airport Authority of Rock Island County and used by a so-called fixed base operator (FBO) to provide aeronautical services to the public. When the law was enacted, there was only one FBO leasing land from the  Metropolitan Airport Authority, Elliott Aviation, Inc. The new law was specifically designed to provide a financial incentive for that particular company to expand its operations at the Metropolitan Airport Authority’s facilities rather than its operations in  Des Moines, Iowa, which were not subject to property tax. The appellate court reversed and remanded with directions, holding that the law contravenes the article IV, section 13 prohibition against special legislation. 2015 IL App (3d) 140535. Elliott  Aviation appealed to our court as a matter of right. Ill. S. Ct. R. 317 (eff. July 1, 2006). For the reasons that follow, we affirm the appellate court's judgment.


2 Supreme Court Cases Posted 5-23-16

1. Public Employee Labor Relations: Appellate court, circuit court reversed: Arbitrator award entered in connection with bargaining process between State of Illinois and union, which awarded pay increase of 2%, violated State constitutional provision regarding appropriations. Theis, J.

No. 2016 IL 118422  State of Illinois v. American Federation of State, County & Municipal Employees, Council 31  Filed 5-23-16 (TJJ)


This case arises out of the entry of an arbitration award directing the State of Illinois to pay a 2% wage increase to state employees covered by a multiyear collective bargaining agreement between the State of Illinois, Department of Central Management  Services (the State), and the American Federation of State, County and Municipal Employees, Council 31 (AFSCME). For the reasons discussed below, we hold that the arbitration award violates Illinois public policy, as reflected in the appropriations  clause of the Illinois Constitution (Ill. Const. 1970, art. VIII, § 2(b)), and section 21 of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/21 (West 2014)). Accordingly, we reverse the judgments of the appellate court (2014 IL App (1st) 130262) and  the circuit court of Cook County, and vacate the arbitration award.

2. Unemployment Insurance: Appellate court, circuit court affirmed: Decision to refuse unemployment insurance benefits to airline employment who "upgraded" passenger to better seat with complimentary drinks erroneous, as employee's actions did not constitute "employee misconduct." Burke, J.

No. 2016 IL 118562  Petrovic v. Department of Employment Security  Filed 5-23-16 (TJJ)


The plaintiff, Zlata Petrovic, applied for unemployment insurance benefits with the Department of Employment Security (Department) following the termination of her employment with American Airlines (American). American filed a protest alleging that  plaintiff was ineligible for benefits because she was “discharged for misconduct connected with [her] work,” pursuant to section 602(A) of the Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2012)). Following a hearing, a referee for the  Department denied plaintiff’s application. The referee’s determination was affirmed by the Board of Review (Board). In this court, plaintiff contends that the Board’s decision finding her ineligible for benefits is clearly erroneous. We agree. For the reasons  that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

2 Appellate Cases Posted 5-25-16

1. Negligence/Slip and fall: Affirmed: Trial court properly granted summary judgment to city in action where plaintiff alleged that condition of city sidewalk was cause of personal injury, as defect was "open and obvious," and city did not have a duty to guard plaintiff against third party who distracted her at time of alleged fall. Mason, J.

No. 2016 IL App (1st) 143432  Negron v. City of Chicago  Filed 5-15-16 (TJJ)


This case arises out of a slip-and-fall incident that occurred as plaintiff Melanie Negron was walking home on July 26, 2010. There was a crowd across the street, and Negron heard someone behind her shouting obscenities and yelling, “Everybody hit the  floor.” She looked over her shoulder at the crowd as she kept walking, and while her attention was diverted, she tripped over a two-inch-high uneven piece of sidewalk, fracturing both elbows. Negron brought a negligence suit against the City of Chicago  for failing to properly maintain the sidewalk. The trial court granted summary judgment to the city, finding that the city did not have a duty to protect Negron from an open and obvious sidewalk defect. The court also rejected Negron’s argument that the  open-and-obvious doctrine did not apply because she was distracted by the individual who was shouting at the time she tripped. We agree with the trial court and affirm, finding that although the evidence shows that Negron was actually distracted, the  distraction was not something that the city was legally required to anticipate and guard against.

2. Forcible Entry and Detainer: Affirmed: Trial court could properly conclude that process server's testimony that he left summons and complaint with person at defendant's household who identified herself as a family member of defendant's (mother) who also resided at premises was credible, and constituted sufficient service, over claim by defendant not testified to but raised only in affidavit. Schostok, J.

No. 2016 IL App (2d) 150913  Abbington Trace Condominium Ass'n v. McKeller  Filed 5-25-16 (TJJ)


In this forcible entry and detainer action, defendant, Christine McKeller, appeals the trial court’s denial of her motion to quash service. She contends that the court erred in crediting the testimony of the process server to find that she was served by substitute  service on a member of her household. We affirm.

4 Appellate Cases Posted 5-24-16

1. Criminal Law: Reversed and remanded for resentencing: Defendant's attorney provided ineffective assistance of counsel when counsel failed to argue to the trial court that two of three prior convictions relating to gun possession should not have been considered in aggravation in light of Aguilar case; sentence of six years IDOC vacated and matter remanded for resentencing. Neville, J.

No. 2016 IL App (1st) 134006  People v. Billups  Filed 5-24-16 (TJJ)


The trial court, in a bench trial, found Jermaine Billups guilty of delivering more than one gram of heroin, and sentenced him to six years in prison. Billups contends on appeal that his attorney provided ineffective assistance of counsel by failing to object to  the court's consideration in sentencing of two prior convictions for violations of statutes later held unconstitutional. We agree that counsel's performance fell below an objective standard of reasonableness and that Billups showed a reasonable probability  that the court would have imposed a lesser sentence if his counsel had not erred. Accordingly, we vacate the sentence and remand for resentencing.

2. Criminal Law: Affirmed: Evidence was sufficient to sustain trial court's finding of guilty of aggravated battery of a peace officer and attempt to disarm a peace officer over defendant's claim that State's witnesses should not have been believed, and defendant's claim of self-defense was "invalid" where defendant denied striking the officer. Hyman, J.

No. 2016 IL App (1st) 140328  People v. Freneey  Filed 5-24-16 (TJJ)


Ronnie Freneey was involved in a scuffle with a courtroom deputy at the Daley Center, following a probate proceeding in which Freneey was a litigant. After a bench trial, he was convicted of attempting to disarm a peace officer and aggravated battery of a  peace officer, and sentenced to a total of three years in prison. Freneey contends that the evidence used to convict him was insufficient because (i) the State witnesses were impeached and contradicted by the defense witnesses' testimony, and (ii) there was  insufficient evidence of his intent. We find that on the basis of all the evidence, a reasonable trier of fact could credit the State witnesses over the defense witnesses and draw inferences of Freneey's intent to disarm and batter the deputy. Freneey also  argues that the State's evidence was not enough to defeat his affirmative defense of self-defense to excessive force by the deputy. We reject this contention because Freneey did not raise a valid self-defense claim.

3. Criminal Law: Affirmed in part, fine vacated: Sentence of 21 years IDOC for offense of armed habitual criminal affirmed over claim that trial court did not consider defendant's rehabilitative potential and that sentence was excessive; trauma fund fine vacated as not applicable to this particular type of firearm offense. Neville, J. (Hyman, J., sp. concurring).

No. 2016 IL App (1st) 140421  People v. Bryant  Filed 5-24-16 (TJJ)


Following a jury trial, Levie Bryant, the defendant, was convicted of being an armed habitual criminal and was sentenced to 21 years in prison. The trial court also imposed $779 in fines and fees. On appeal, defendant contends his sentence should be  reduced because the trial court imposed a sentence near the statutory maximum without explaining its reasons for that sentence or considering his rehabilitative potential. In addition, defendant contends that the trial court incorrectly assessed a $100 trauma
fund fine (730 ILCS 5/5-9-1.10 (West 2012)) against him. We affirm defendant's conviction and sentence but vacate the trauma fund fine and order the clerk of the circuit court to correct the fines and fees order.

4. Criminal Law: Affirmed: Post-conviction petition properly denied after third stage hearing, over claim that an information was never filed at time of gulty plea, and defendant abandoned at trial level his claim that trial counsel's acts in mis-advising defendant as to immigration consequences of sentence of 410 probation constituted ineffective assistance of counsel. Jorgensen, J.

No. 2016 IL App (2d) 140332  People v. Sandoval-Carrillo  Filed 5-24-16 (TJJ)


Defendant, Gustavo Sandoval-Carrillo, appeals the denial, after an evidentiary hearing, of his petition for relief under the Post-Conviction Hearing Act. Defendant contends that (1) his conviction, on a guilty plea, of  unlawful possession of more than 10 but not more than 30 grams of cannabis with the intent to deliver, a Class 4 felony, is void, because the State never charged him by indictment or information, as required by statute (725  ILCS 5/111-2(a) (West 2008)); and (2) his guilty plea violated due process, as the trial court did not admonish him properly. We affirm.

7 Supreme Court Cases Posted 5-19-16

1. Criminal Law: Reversed: Conviction for Class X offense of armed robbery (and resultant 40-year sentence) did not violate proportionate penalties clause of State constitution, as offense of armed robbery and Class 2 offense of armed violence with a Category III weapon did not have identical elements. Karmeier, J.

No. 2016 IL 118672  People v. Hernandez  Filed 5-19-16 (TJJ)


Defendant, Gregory Hernandez, was found guilty following a Du Page County bench trial of several charges, including armed robbery, a Class X felony under section 18-2 of the Criminal Code of 1961. Defendant was eventually sentenced, as pertinent  here, to an extended term of 40 years’ imprisonment for armed robbery. Following a 2014 evidentiary hearing on his postconviction claim that the 40-year term imposed for armed robbery violated the proportionate penalties clause of the Illinois  Constitution of 1970, the circuit court granted defendant a new sentencing hearing. The court’s order stated the armed robbery statute used to sentence defendant was “facially unconstitutional” because it carried a harsher penalty than the penalty for “armed  violence with a Category III weapon (bludgeon) 720 ILCS 5/33A-1 (1998). For the reasons that follow, we reverse the judgment of the circuit court and affirm defendant’s 40-year term of imprisonment for armed robbery.

2. Criminal Law: Appellate court reversed, circuit court affirmed: Reasonable level of assistance standard relating to counsel's performance in a post-conviction petition applies equally to appointed counsel and retained counsel, and retained counsel in this case provided reasonable assistance. Kilbride, J.

No. 2016 IL 119006  People v. Cotto  Filed 5-19-16 (TJJ)


This appeal asks this court to decide if every postconviction petitioner represented by counsel is entitled to a reasonable level of assistance from counsel after first-stage proceedings, regardless of whether counsel was appointed or privately retained. The  appellate court is split on the issue. Compare People v. Csaszar, 2013 IL App (1st) 100467, ¶ 25 (reasonable level of assistance standard does not apply to privately retained counsel), with People v. Anguiano, 2013 IL App (1st) 113458, ¶ 31 (reasonable  level of assistance standard applicable to both retained and appointed counsel). The circuit court granted the State’s motion to dismiss defendant’s postconviction petition, and a divided appellate court affirmed. 2015 IL App (1st) 123489, ¶ 13. For the  reasons that follow, we conclude that the reasonable level of assistance standard applies to both retained and appointed postconviction counsel. We reject the appellate court’s contrary conclusion but affirm its judgment on an alternative basis.

3. Sexually Dangerous Persons Act: Appellate Court affirmed: Under the Sexually Dangerous Persons Act, in connection with a post-judgment "recovery" proceeding in which the respondent is seeking to be adjudged no longer sexually dangerous, the State does not have the right to the appointment of an independent evaluator who can offer differing opinion to those of any Department of Corrections evaluators. Thomas, J.

No. 2016 IL 119162  People v. Grant  Filed 5-19-16 (TJJ)


At issue is whether in a recovery proceeding under the Sexually Dangerous Persons Act, the State is entitled to have an independent psychiatric expert evaluate the respondent and testify at trial. In this recovery proceeding, the Johnson County circuit court  appointed a psychiatric expert at the State’s request. The expert testified at trial that respondent, James E. Grant, had not recovered and was substantially likely to commit future sex offenses. A jury found that respondent was still a sexually dangerous  person. The appellate court reversed and remanded for a new trial, holding that the SDPA does not contemplate the appointment of an independent psychiatric expert for the State in a recovery proceeding. 2015 IL App (5th) 130416. We allowed the State’s petition for leave to appeal and now affirm the judgment of the appellate court.

4. Hospital Medical Privileges: Appellate and circuit courts affirmed: Hospital and other defendnats were immune from suit by doctor whose privileges to perform operations at hospital were revoked for performance of surgeries that were allegedly not medically necessary, as Illinois Hospital Licensing Act renders defendants immune absent "willful and wanton conduct," and that exception relates only to physical harm. Thomas, J.

No. 2016 IL 119220  Valfer v. Evanston Northwestern Healthcare  Filed 5-19-16 (TJJ)


Plaintiff, Steven I. Valfer, M.D., brought an action in Cook County circuit court seeking civil damages against defendant, Evanston Northwestern Healthcare, n/k/a NorthShore University HealthSystem (the hospital), based on the revocation of his privileges  to practice at the hospital following a peer review conducted pursuant to the Illinois Hospital Licensing Act. The hospital filed a motion for summary judgment, arguing it was immune from damages under the Licensing Act and that it did not  violate its bylaws in connection with deciding not to reappoint plaintiff. The trial court agreed, finding that the hospital was immune from suit and that it had complied with its bylaws and had not engaged in any wilful and wanton conduct. The appellate court affirmed. 2015 IL App (1st) 142284. We allowed plaintiff’s petition for leave to appeal  and now affirm the appellate court.

5. Real Estate Construction/Implied Warranty of Habitability: Appellate court reversed, circuit court affirmed: Waiver of implied warranty of habitability made in connection with sale of residence by builder to first purchaser prohibited second purchasers from claiming that builder breached any such warranty as to them. Burke, J.

No. 2016 IL 119365  Fattah v. Bim  Filed 5-19-16 (TJJ)


In Petersen v. Hubschman Construction Co., 76 Ill. 2d 31 (1979), this court held that, in a contract for sale from a builder-vendor to the first purchaser of a newly constructed house, there is an implied warranty that the house will be free from latent defects  that unreasonably interfere with its intended use. We also held that this “implied warranty of habitability” may be waived by the purchaser if certain conditions are met. Id. at 43. Three years after Petersen, in Redarowicz v. Ohlendorf, 92 Ill. 2d 171 (1982),  we held, in a case where there was no waiver of the implied warranty of habitability by the first purchaser of a house, that the warranty should be extended to a second purchaser of the house. In this case, we address a question left unanswered by Redarowicz: May the implied warranty of habitability be extended to a second purchaser of a house when a valid, bargained-for waiver of the warranty was executed between the builder-vendor and the first purchaser? For the reasons that follow, we  conclude that it may not.

6. Civil Procedure: Appellate court affirmed: In action by plaintiff dairy farmers against milk cooperative, initial voluntary dismissal by plaintiffs did not constitute a final judgment on any disputed matters so as to act as res judicata as to claims contained in subsequently filed actions, and plaintiffs did not engage in prohibited "claim splitting" in connection with claims raised in subsequent pleading. Freeman, J.

No. 2016 IL 119518  Richter v. Prairie Farms Dairy  Filed 5-19-16 (TJJ)


Following a voluntary dismissal, plaintiffs, Michael Richter and Denise Richter, doing business as Rich-Lane Farms, refiled their civil action against defendant, Prairie Farms Dairy, Inc. The circuit court of Macoupin County dismissed the refiled action  pursuant to section 2-619 of the Code of Civil Procedure on the grounds of res judicata and the statute of limitations. 735 ILCS 5/2-619(a)(4), (a)(5) (West 2012). The appellate court reversed and remanded for further proceedings. 2015 IL App (4th)  140613. This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). We now affirm the judgment of the appellate court.

7. Utility Regulation: Appeal dismissed as moot: Cessation of federal funding for "clean coal" program that was the subject of appeal by two electric utilities rendered appeal moot. Kilbride, J.

No. 2016 IL 118129  Commonwealth Edison Company v. Illinois Commerce Commission  Filed 5-19-16 (TJJ)


The subject of this case is the FutureGen 2.0 “clean coal” project in Illinois. The issue brought before this court is whether the Illinois Commerce Commission (the Commission) has the authority to require Commonwealth Edison and Ameren, the two  largest utility companies in Illinois, to negotiate energy procurement from the FutureGen 2.0 power plant on behalf of themselves as well as the state’s smaller Area Retail Electric Suppliers (ARES). After we allowed the petition for leave to appeal, federal  funding for the FutureGen 2.0 project was suspended, project development efforts were ceased, and the sourcing agreements that are the subject of this appeal were terminated. We dismiss this appeal as moot and vacate the judgment of the appellate court without expressing an opinion on the merits of the appellate court opinion.

2 Appellate Cases Posted 5-23-16 

1. Attorney Malpractice: Affirmed: In case where plaintiff had previously sued attorneys for legal malpractice, previous ruling in related, earlier suit between same parties put plaintiff on notice regarding propriety of certain loans at issue in this matter, so that passage of time between that point in time and filing of suit barred suit per statute of repose. Harris, J.

No. 2016 IL App (1st) 150433  Prospect Development, LLC v. Kreger  Filed 5-23-16 (TJJ)


Plaintiffs brought this legal malpractice suit against defendant attorney and the law firm that employed him. Prior to this lawsuit, plaintiff had previously filed a breach of contract action against the city of Prospect Heights, Illinois, stemming from the  collapse of a deal to develop a sports arena for the city. The defendant attorney in this action was general counsel for the city until the arena deal collapsed in 2004. In the previous lawsuit, the plaintiffs were successful in proving their claim for breach of  contract but were denied recovery based on the doctrine of unclean hands. The court in the breach of contract action found plaintiffs' undisclosed loans to defendant attorney barred recovery on the breach of contract action. Plaintiffs then instituted this action against defendant attorney and his former firm for legal malpractice. The previous court made a factual determination that in January 2005 the plaintiffs had knowledge the loan advice they last received in October 2001 may not have been proper.  The court ruled such a determination barred relitigation of the issue in this case. Because over two years remained before the statute of repose ran when plaintiffs obtained this knowledge in 2005, the circuit court found the suit barred by plaintiffs' failure to  file within this period. Affirmed.

Insurance Coverage/Choice of Law/Blast Faxes: Reversed and remanded: Trial court erred in determining that no conflict existed between Illinois law and Indiana, regarding insurer's failure to provide 30-days' notice relating to new exclusion as to "advertising injuries," so as to require coverage, where in fact a conflict existed and under Indiana law30-day notice was not required. Gordon, J.

No. 2016 IL App (1st) 150919  Cincinnati Insurance Company v. Chapman  Filed 5-23-16 (TJJ)


Before this court, Cincinnati raises the following issues: (1) whether the circuit court erred in finding that no conflict exists between Illinois and Indiana regarding the notice required when an exclusion is added to an insurance policy at the time of renewal;  (2) whether there is a conflict between Indiana and Illinois regarding application of estoppel when an insurer fails to defend an action; and (3) whether the circuit court's decision violated the fundamental fairness test of constitutional due process.We hold that there is an actual conflict between the notice required under Illinois and Indiana laws when a new exclusion is added to an insurance policy upon renewal. After determining that an actual conflict exists, we find that the relevant factors require  the use of Indiana laws to determine whether the exclusion can be invoked to deny coverage to Phoenix. Accordingly, we vacate the entry of summary judgment in favor of Chapman and remand for further proceedings consistent with this opinion.

2 Appellate Cases Posted 5-20-16 

1. Public Employment: Affirmed: Cook County Human Rights Commission determination that petitioner was victim of sexual and age discrimination and harassment was not against manifest weight of the evidence. Hoffman, J.

No. 2016 IL App (1st) 150718  Cook County Sheriff's Office v. Cook County Comm'n on Human Rights  Filed 5-20-16 (TJJ)


The petitioner, Cynthia Walker, filed a claim with the Cook County Commission on Human Rights, alleging that she was subjected to ongoing sexual and age discrimination and harassment in violation of section 42-35 of the Cook County  Human Rights Ordinance, while at her job at the Department of Corrections. The Commission found in favor of the petitioner, and the circuit court  confirmed the Commission's decision on review pursuant to a writ of certiorari. The Cook County Sheriff's Office now appeals, raising as issues whether: (1) the Commission's determination that the petitioner was subjected to sexual harassment was against the manifest weight of the evidence; (2) the Commission erred in expanding the definition of age discrimination under  the Ordinance to include harassment based upon age, or, alternatively (3) its finding of age-related harassment was against the manifest weight of the evidence; and (4) the Commission exceeded its authority under the Ordinance in issuing certain  injunctive relief, or (5) the injunctive relief as ordered was clearly erroneous. For the reasons that follow, we affirm.

2. Statutory Summary Suspension: Affirmed: Trial court properly denied rescission of summary suspension in connection with DUI arrest, over claims that rescission hearing could not be held absent "confirmation" of the suspension and a claim that hearing was not within the 30-day time period from the filing of the petition, as some of the time was attributable to a "by agreement" continuance. Hoffman, J.

No. 2016 IL App (1st) 151799  People v. Guillermo  Filed 5-20-16 (TJJ)


The defendant, Mario Guillermo, appeals the circuit court's order denying his petition to rescind the statutory summary suspension of his driving privileges filed pursuant to section 2- 118.1(b) of the Illinois Vehicle Code. On appeal, the defendant argues that: (1) the circuit court lacked subject matter jurisdiction; (2) the court erred by holding a hearing on his petition to rescind because the matter was not ripe for adjudication; and (3) the hearing on his petition  to rescind was untimely because it took place more than 30 days after he filed the petition. For the reasons that follow, we affirm.

2 Appellate Cases Posted 5-19-16

1. Insurance Coverage: Affirmed in part and reversed in part: Where insured was sued civilly and charged criminally in connection with injuries sustained by complainant stemming from a fight, insurance company's duty to defend arose on date complainant's lawsuit was filed, but once insured was convicted in criminal court, "criminal act exclusion" resulted in termination of duty to defend. Ellis, J.

No. 2016 IL App (1st) 141392  Country Mutual Insurance Co. v. Dahms  Filed 5-19-16 (TJJ)


This declaratory-judgment action involves an insurance coverage dispute as to whether plaintiff-counterdefendant, Country Mutual Insurance Company (Country Mutual), has a duty to defend its insured, defendant-counterplaintiff, Charles Dahms, in an  underlying tort lawsuit. The plaintiff in the tort lawsuit against Dahms pleaded causes of action for negligence and battery. About six months after the tort action against Dahms was filed, Dahms was convicted of aggravated battery stemming from the same  events. We agree with the trial court that Country Mutual owed a duty to defend Dahms in the tort action, but we hold that this duty arose the moment the tort lawsuit was filed, not when Dahms pleaded his affirmative defenses in that lawsuit. We  affirm the trial court’s ruling as so modified. We further hold, however, that Country Mutual’s duty terminated on the date that Dahms was criminally convicted for the same conduct because, as of that moment, his conduct fit with the policy’s criminal-act  exclusion. Thus, we affirm the trial court’s judgment in part as modified and reverse in part.

2. Juvenile Delinquency/Sex Offender Registration: Affirmed: Sex Offender Registration Act and Sex Offender Community Notification Act, as applied to juvenile adjudicated guilty of aggravated criminal sexual abuse, did not violate due process or constitute cruel and unusual punishment. Burke, J. (Gordon, J., concurring in part and dissenting in part).

No. 2016 IL App (1st) 153047  In re A.C.  Filed 5-19-16 (TJJ)


Following a hearing in Juvenile Court, the circuit court adjudicated respondent, A.C., delinquent of aggravated criminal sexual abuse and he was ordered to register under the Sex Offender Registration Act. Respondent appeals, contending that the  provisions of SORA and the Sex Offender Community Notification Law which are applicable to juveniles, violate federal and state substantive due process and procedural due process. In addition, respondent contends that both of these statutes violate the  prohibition against cruel and unusual punishment under the eighth amendment and the proportionate penalties clause of the federal constitution. This court subsequently allowed the Children & Family Justice Center of the Bluhm Legal Clinic at  Northwestern University School of Law and the Juvenile Law Center to file a joint amicus curiae brief on behalf of A.C. Affirmed.

2 Appellate Cases Posted 5-18-16

1. Criminal Law: Affirmed: Shorter limitations period for sexual offense committed against patient by doctor did not apply where offense was not committed during "professional relationship," but, as alleged, was a straight-forward sexual assault governed by applicable 10-year limitations period, and trial court did not err in denying defendant's pre-trial motion to dismiss; trial court properly conducted post-trial hearing regarding defendant's claim that he did not receive effective assistance of counsel at trial. Lavin, J.

No. 2016 IL App (1st) 140039  People v. Smith  Filed 5-18-16 (TJJ)


Following a jury trial, defendant Dr. Bruce Smith, M.D. was found guilty of two counts of criminal sexual assault. Defendant was sentenced to consecutive terms of 11 and 7 years imprisonment. On appeal, defendant contends that the State's prosecution of  him was barred by the applicable statute of limitations because he had a "professional" relationship with the victim. Defendant also contends that the trial court failed to properly address his posttrial allegations of ineffective assistance of counsel. In  addition, defendant contends that the trial court erred in imposing a three-year mandatory supervised release term because the statutory MSR for such cases was only two years. We affirm the judgment, but order the mittimus to be corrected.

2. Insurance Coverage/Blast Fax: Affirmed: Trial court properly concluded that deductible provisions of insurance policy relating to "advertising injury," and amount of settlement agreement in class action relating to "blast faxes" under insurance company's reservation of rights, resulted in insurtance company having no obligation to indemnify insured defendant. Lavin, J.

No. 2016 IL App (1st) 143924  First Mercury Insurance Co. v. Nationwide Security Services, Inc.  Filed 5-18-16 (TJJ)


This declaratory action involves a "blast fax" insurance coverage dispute and requires us to determine whether the insurer has a duty to indemnify the insured and therefore the assignee of the insured. In a separate underlying class action lawsuit, the  plaintiff sued the insured for sending unwanted faxes, but the parties ultimately settled. The settlement agreement purported to obligate the insurance company to cover the settlement costs of some $4 million even though the insurance company was not a party to the settlement and had opposed the previous settlement offer. As part of the settlement, the plaintiff in the underlying matter was assigned the insured's rights under the policy. The insurance company filed the present declaratory action asserting the insured and thus the assignee were not entitled to be indemnified under the policy. The parties filed cross-motions for summary judgment in the declaratory action with the trial court ruling for the insurance company. On appeal, the plaintiff/assignee from  the underlying class action lawsuit now seeks to obtain insurance coverage so as to recover the $4 million settlement amount. We affirm the trial court's ruling in favor of the insurance company.

3 Appellate Cases Posted 5-17-16

1. Criminal Law: Affirmed: Conviction for driving on a revoked license upheld, and Class X sentence of six years affirmed over claim that prior revocation of license for offense of possession of stolen motor vehicle prohibited subsequent revocation for leaving the scene of a fatal accident (that latter circumstance requiring a higher class sentence), as there was no license to revoke; trial court decision that revocation was properly deemed for subsequent conviction (and higher sentence) upheld. Pierce, J.

No. 2016 IL App (1st) 122954  People v. Viverette  Filed 5-17-16 (TJJ)


By way of information, defendant Keith Viverette was charged with 12 counts of driving while his license was suspended or revoked (DWLR) in violation of five different subsections of section 6-303 of the Illinois Vehicle Code. Defendant now appeals and argues: (1) his felony conviction must be reduced to a misdemeanor conviction because the first revocation of his driver's license was not for a specified offense listed in section 6-303(d-5) of the Code and, because his license was never reinstated, any  subsequent license revocations listed on his driving abstract had no effect; (2) his 3-year term of mandatory supervised release (MSR) should be vacated because it was improperly imposed by the Department of Corrections (DOC); and (3) his mittimus  should be corrected to reflect only one conviction for DWLR. For the following reasons, we affirm the judgment of the circuit court, remand with directions to correct the sentencing order in conformity with section 5-8-1(d) of the Unified Code of  Corrections and correct the mittimus to show only one conviction for DWLR.

2. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition at summary stage over claim that trial counsel did not communicate State offer to defendant to plead guilty in exchange for a particular sentence where the record evinced the opposite circumstance. Jorgensen, J.

No. 2016 IL App (2d) 140435  People v. Mujica  Filed 5-17-16 (TJJ)


Defendant, Victor F. Mujica, appeals the summary dismissal of his postconviction petition. He contends that it stated the gist of a claim that trial counsel was ineffective for failing to communicate defendant’s desire to accept the State’s plea offer. We  affirm.

3. Criminal Law: Affirmed, remanded for resentencing: Defendant's motion to withdraw guilty plea in murder case properly denied by trial court in face of claim that medication defendant took for anxiety and depression prohibited him from making knowing and voluntary plea, but matter remanded for resentencing where, despite waiver of pre-sentence repoert, trial court made no finding of "history of delinquency or criminality" as required by Section 5-3-1 of the Unified Code of Corrections. Schwarm, J.

No. 2016 IL App (5th) 140334  People v. Bryant  Filed 5-17-16 (TJJ)


The defendant, John L. Bryant, appeals from the circuit court's order denying his second motion to withdraw his guilty plea. For the reasons that follow, we affirm the circuit court's judgment but remand for a new sentencing hearing.

3 Appellate Cases Posted 5-16-16 

1. Criminal Law: Vacated in part and remanded: Under Illinois Supreme Court decision in Castleberry, claim in post-conviction petition that successive DNA analysis fee was not authorized by statute, though correct, was not cognizable, as under Castleberry it was not void but mererly voidable (and waived in this instance by the passage of time), but since State did not raise this argument (and confessed error) jurisdiction to vacate the fee was revested and fee vacated. Jorgensen, J.

No. 2016 IL App (2d) 140792  People v. Buffkin  Filed 5-16-16 (TJJ)


Defendant, Deveer D. Buffkin, appeals from the dismissal of his postconviction petition. However, he does not assert any error in that dismissal; instead, for the first time, he raises two claims attacking certain financial aspects of his sentence. The State  confesses error. We accept that confession and grant the requested relief, though the precise grounds on which we may do so on his second claim require an explanation that neither party provides.

2. Municipalities: Affirmed: City's ordinace scheme relating to impoundment of motor vehicles not unconstitutional over claim that it was designed as exercise of police powers only to generate revenue, and plaintiff's class action properly dismissed by trial court. Lytton, J. (McDade, J., sp. concurring).

No. 2016 IL App (3d) 140523  McGrath v. City of Kankakee  Filed 5-16-16 (TJJ)


Plaintiff Barbara McGrath filed an amended class action complaint against defendant City of Kankakee (City) alleging that its impoundment ordinance was unconstitutional because it violated due process and was an unlawful attempt to use police powers  to produce revenue. Defendant filed a motion to dismiss, which the trial court granted with prejudice. Plaintiff appeals the dismissal of her amended complaint. We affirm.

3. Civil Discovery: Affirmed in part, reversed in part, and remanded: Interrogatories propounded to insurance company defendant in action to recover proceeds of an insurance policy issued shortly before home was destroyed by fire, seeking information regarding insurance company's practices both in general and particular to this investigation, properly sought relevant information, and in some instances did not. Cates, J.

No. 2016 IL App (5th) 140056  Zagorski v. Allstate Insurance Co.  Filed 5-16-16 (TJJ)


The plaintiffs, Valentine Zagorski and Christina Zagorski, filed an action in the circuit court of St. Clair County, against the defendant, Allstate Insurance Company (Allstate), alleging a vexatious breach of contract and common law fraud in the handling  of  their homeowners' insurance claim. At the request of Allstate, and its attorney, Robert Brady, the circuit court held Brady in civil contempt for refusing to comply with a discovery order. The court also imposed a fine of $25 per day, which was stayed  pending appeal. Allstate and Brady appeal the contempt order and the underlying discovery order. They contend that the circuit court erred in requiring them to answer interrogatories which seek information that is irrelevant to the plaintiffs' action or protected by a statutory privilege. For reasons that follow, we vacate the contempt order and monetary sanction, we affirm in part and reverse in part the underlying discovery order, and we remand this case with directions.

4 Appellate Cases Posted 5-13-16

1. Landlord-Tenant: Reversed and remanded: Under City of Chicago Residential Landlord and Tenant Ordinance, tenant who prevailed at trial was entitiled to costs and reasonable attorneys' fees in defending against 2-1401 petition later brought by landlord, as well as costs and attorneys' fees for work on appeal. Ellis, J.

No. 2016 IL App (1st) 142853  Trutin v. Adam  Filed 5-12-16 (TJJ)


This appeal arises from a landlord-tenant dispute brought under the Chicago Residential Landlord and Tenant Ordinance (RLTO). The tenant, the plaintiff in this action, prevailed at trial and was awarded attorney fees and costs as a "prevailing plaintiff"  under the RLTO. The landlords later brought a postjudgment petition for relief from judgment pursuant to section 2- 1401 of the Code of Civil Procedure, which the tenant opposed and the circuit court denied. The question presented is whether, under the  RLTO, the tenant is entitled to fees and costs for successfully opposing that postjudgment petition in the circuit court. We hold that she is.

2. Professional Regulation/Doctors: Affirmed: Department of Healthcare and Family Services properly determined that doctor provided "grossly inferior" medical services, placed patients at risk, and gave excess services, and was properly suspended from Medicaid program for 12 months. Lampkin, J.

No. 2016 IL App (1st) 143908  Khan v. Department of Healthcare & Family Services  Filed 5-13-16 (TJJ)


Plaintiff, Gowhar Khan, M.D., appeals the order of the circuit court affirming the decision of defendant, the Illinois Department of Healthcare and Family Services (Healthcare Department), finding plaintiff provided medical care in the Illinois Medical  Assistance Program (Medicaid) that was of grossly inferior quality, placed recipients at risk of harm, and was in excess of patient needs. Based on defendant's findings, plaintiff was suspended from the Medicaid program for 12 months. Plaintiff contends:  (1) defendant's witness was not qualified to provide expert medical testimony: (2) the expert witness' testimony was speculative; (3) defendant failed to demonstrate harm as required by the statute; and (4) the administrative law judge (ALJ) made multiple  factual errors. Based on the following, we affirm.

3. Parental Rights: Affirmed: Evidence was sufficient to establish that father had sexually assaulted minor children so as to support finding of injurious environment, over claims that trial court relied on inadmissible hearsay as to children's claims. Reyes, J.

No. 2016 IL App (1st) 152479  In re J.L.  Filed 5-13-16 (TJJ)


Mario L. (Mario)1 appeals from (a) adjudication orders entered by the circuit court of Cook County finding that he abused and neglected three of his minor children and (b) a disposition order finding him unfit and adjudging the children wards of the court.  Mario contends that the trial court's finding that his younger daughter was sexually abused was against the manifest weight of the evidence "because it was based on inadmissible hearsay evidence regarding statements made by" his older daughter. He also  argues that his due process rights were violated because "he was denied the right to defend himself against the allegations and subsequent findings of sexual abuse against" the older daughter (C.L.). The Office of the Cook County Public Guardian (the  Public Guardian) and the State assert that the findings were supported by the manifest weight of the evidence and that Mario's due process rights were not violated. For the reasons discussed below, we affirm the orders of the circuit court.

4. Rule 137 Sanctions: Affirmed: In dispute between national church and diocese over funds held by diocese when diocese split from church, post-judgment efforts by church to raise identical issues with respect to the disputed funds by suit in another county justified award of attorneys' fees as sanction against church for bringing later action. Pope, J.

No. 2016 IL App (4th) 150193  Diocese of Quincy v. Episcopal Church  Filed 5-13-16 (TJJ)


Defendant-counterplaintiff, the Episcopal Church, and counterplaintiff-inintervention, the Diocese of Quincy of the Episcopal Church (Episcopal Diocese), n/k/a the Diocese of Chicago (collectively, the Church), appeal the trial court's order granting a  motion to enforce a prior judgment filed by plaintiffs, the Diocese of Quincy (Diocese) and the Trustees of Funds and Property of the Diocese of Quincy (Trustees), and counterdefendants, Edward A. Den Blaauwen, Chris Potthoff, Leah Day, Le Roy Groff,  Frank Dunaway, Mark L. Gamage, Bryce Dexter, Michael S. Brooks, Linda Terlesky, Warren Wilkins, Ronald R. Damewood, Jr., Nell German, Oscar P. Seara, Andrew Ainley, Kathi King, Ramsey Easterling, and Alberto Morales. The Church also  appeals the trial court's award of sanctions pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013). We affirm.

1 Appellate Case Posted 5-12-16

1. Juvenile Delinquency: Reversed and remanded: Trial court failed to address appropriate sentencing factors, and failed to consider less restrictive alternatives than indeterminate sentence in IDOC for juvenile adjudicated guilty of robbery, where trial court failed to expressly delineate that it had considered such less restrictive alternatives. Birkett, J.

No. 2016 IL App (2d) 140486-B  In re H.L.  Filed 5-12-16


Beginning in approximately 2010, respondent, H.L., became involved in the juvenile justice system, admitting to an allegation of mob action, for which he received a five-year term of probation. Respondent’s behavior would appear to improve, but then  respondent would continue to take backward steps. In 2012, respondent admitted to an allegation of robbery, for which he received a modified term of probation to continue until his twenty-first birthday. In 2013, respondent admitted to a charge of unlawful  possession of cannabis, and this time, the circuit court of De Kalb County sentenced respondent to an indeterminate term in the Department of Juvenile Justice (Department). In this appeal, respondent’s remaining issue is whether the trial court abused its discretion in committing respondent to the Department for an indeterminate term. Respondent argues that the trial court failed to first consider less restrictive alternatives to indeterminate incarceration with the Department and that the trial court  failed to address the appropriate factors in passing sentence. We vacate and remand for resentencing.

2 Appellate Cases Posted 5-11-16 

1. Negligence: Reversed and remanded: In personal injury action where plintiff alleged that practice of hot dog stand employees to yell at customers led to instance of unidentified patron knocking plaintiff down, resulting in injuries, trial court grant of summary judgment to hot dog stand defendant was error, as genuine issues of material fact existed so as to support a claim on plaintiff's behalf. Fitzgerald Smith, J.

No. 2016 IL App (1st) 150118  Libolt v. Wiender Circle, Inc.  Filed 5-11-16 (TJJ)


Plaintiff Leah Libolt sued defendant restaurant Wiener Circle, Inc., for injuries allegedly sustained in a fall at the restaurant. Wiener Circle filed a motion for summary judgment under section 2-1005 of the Code of Civil Procedure. After a full briefing, the  trial court granted summary judgment in favor of Wiener Circle. Plaintiff appeals, contending summary judgment was improper because: (1) Wiener Circle owed her a duty of care as its invitee to protect her from or warn her of the dangers associated with  the late night nature of its business; and (2) the issue of proximate cause should be presented to the jury. For the following reasons, we reverse and remand for further proceedings.

2. Criminal Law: Reversed and remanded: Trial court erred in dismissing post-conviction petition at second stage, as defendant made a showing of violation of constitutional rights where he alleged that his trial counsel failed to accurately inform him of the potential penalties he faced, thus leading him to reject State's 18-year offer on a plea of guilty, and a resultant 45-year sentence after trial, and was thus entitled to a third stage evidentiary hearing. Steigmann, J.

No. 2016 IL App (4th) 140502  People v. Williams  Filed 5-11-16 (TJJ)


This appeal arises from the trial court's May 2014 second-stage dismissal of an amended petition that defendant, James Williams, Jr., raised under the Post-Conviction Hearing Act. In his October 2012 amended postconviction petition, defendant argued, in  pertinent part, that he was denied his constitutional right to the effective assistance of counsel during guilty-plea negotiations with the State. Specifically, defendant contended that his counsel failed to accurately inform him of the possible penalties he faced  on the State's charges for (1) attempt (first degree murder), (2) unlawful use of a weapon by a felon, and (3) attempt (armed robbery). Defendant claimed that, as a result of counsel's failure, he rejected the State's 18-year guilty-plea offer and, instead,   proceeded to trial where a jury found him guilty of all three charges. The trial court later imposed an aggregate sentence of 45 years in prison. Defendant appeals, arguing that the trial court erred by dismissing his amended postconviction petition because  he had alleged a substantial showing of a constitutional violation.We agree and reverse and remand with directions.

4 Appellate Cases Posted 5-10-16 

1. Attorney Referrals: Affirmed: Summary judgment properly granted to defendant personal injury attorney in case where plaintiff attorney sued claiming that he was entitled to referral fee, where client represented by defendant was not advised in writing of any purported agreement in which the referring attorney would receive any referral fee. Spence, J. (Hutchinson, J., sp. concurring).

No. 2016 IL App (2d) 150360  Naughton v. Pfaff  Filed 5-10-16 (TJJ)


Plaintiff, Richard P. Naughton, appeals from a grant of summary judgment in favor of defendants, Bruce R. Pfaff and Pfaff & Gill, Ltd. Naughton argues that the trial court erred in ruling that an attorney who refers an individual to another attorney may not  prevail on a claim of breach of fiduciary duty against the receiving attorney if the client did not sign a contract complying with Illinois Rules of Professional Conduct Rule 1.5(f). We affirm.

2. Domestic Relations: Reversed and remanded: In 2005, husband filed for divorce, and was granted one pursuant to a marital settlement agreement in which husband failed to acknowledge pending multi-million dollar sale of his business. Thereafter, parties reconciled and a pre-nuptial agreement was executed. After second divorce, wife sought 2-1401 relief for husband's alleged fraud in connection with first divorce. Trial court denied wife's petition on grounds that by 2007 she knew that husband's financial condition was substantially different from that put forth at time of first divorce, and thus failed to exercise due diligence in seeking then to have initial divorce judgment vacated. Trial court reversed.

No. 2016 IL App (3d) 150433  In re Marriage of Van Ert  Filed 5-10-16 (TJJ)


The marriage of respondent, Janet Van Ert, and petitioner, Larry Van Ert, was dissolved in 2005. Respondent filed a petition to vacate the judgment of dissolution pursuant to section 2- 1401 of the Code of Civil Procedure. Respondent appeals from the  dismissal of her petition on due diligence grounds. We reverse and remand for further proceedings.

3. Criminal Law: Affirmed in part and vacated in part: Sentence of 58 months' IDOC for failure to register as a sex offender affirmed, but certain fines vacated. Harris, J.

No. 2016 IL App (4th) 121049-B  People v. Breeden  Filed 5-10-16 (TJJ)


The trial court sentenced defendant, Thomas Breeden, to 58 months' imprisonment for failure to register as a sex offender. He appealed, arguing the sentence was excessive. On appeal, this court affirmed the trial court's  sentencing decision, finding no abuse of discretion. People v. Breeden, 2014 IL App (4th) 121049, ¶ 59. On January 20, 2016, the supreme court denied a petition for leave to appeal filed by defendant but directed this court to vacate our judgment in the  case and reconsider the matter in light of People v. Castleberry, 2015 IL 116916, to determine whether a different result is warranted. In accordance with the supreme court's direction, we vacate our prior judgment and reconsider the matter in light of  Castleberry. After reconsideration, we vacate the three fines identified by the parties as improperly assessed by the circuit clerk (the $10 "Arrestee's Medical" fine, the $10 "St Police Services" fine, and the $5 "Drug Court Program" fine) and remand to the  trial court for imposition of the mandatory fines and the application of appropriate credit against those fines. We otherwise affirm the trial court's judgment.

4. Criminal Law: Affirmed: Sex Offender Registration Act and Sex Offender Community Notification Act are not unconstitutional, either as violating substantive due process or as constituting "grossly disproportionate punishment" for his crime. Schwarm, J.

No. 2016 IL App (5th) 130514  People v. Pollard  Filed 5-10-16 (TJJ)


The defendant, Cedric Pollard, appeals the constitutionality of the Sex Offender Registration Act, the Sex Offender Community Notification Law (the Notification Law), and additional statutes, including those restricting his residency and presence in areas  frequented by children, requiring him to renew his driver's license annually, and precluding him from petitioning for a name change. The defendant argues that this statutory scheme, which he labels as "the SORA Statutory Scheme," imposes lifelong affirmative disabilities and restraints that violate the due process guarantees of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), in addition  to the proportionate penalties guarantees of the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) and article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Following the persuasive,  well-reasoned opinion in People v. Avila-Briones, 2015 IL App (1st) 132221, we affirm.

4 Appellate Cases Posted 5-9-16

1. Criminal Law: Affirmed: Offenses of armed habitual criminal and unlawful use or possession of a weapon by a felon are not unconstitutional as an alleged infringement on second amendment rights. Connors, J.

No. 2016 IL App (1st) 142143  People v. Montgomery  Filed 5-9-16 (TJJ)


After a bench trial, defendant, James Montgomery, was found guilty of being an armed habitual criminal, and unlawful use of a weapon by a felon, after police seized guns and ammunition at defendant's home during the execution of a search warrant. The  court sentenced defendant to two concurrent seven-year sentences. On appeal, defendant argues that the AHC and UUWF statutes are unconstitutional because they infringe on his second amendment right to bear arms in self-defense. U.S. Const., amend.  II. For the following reasons, we affirm.

2. Medical Malpractice: Affirmed: Trial court properly granted summary judgment to hospital in medical malpractice case, where evidence, including signed consent form, established that there were no facts upon which to reasonably conclude that hospital "held out" in any manner that allegedly negligent doctor was an agent of defendant hospital. Cunningham, J.

No. 2016 IL App (1st) 142790  Mizyed v. Palos Community Hospital  Filed 5-9-16 (TJJ)


Plaintiff-appellant Saleh Mizyed appeals from the trial court's order granting summary judgment dismissing his medical malpractice complaint against the defendant-appellant Palos Community Hospital (Palos), which was premised on Palos' vicarious  liability for the alleged negligence of Mizyed's treating physicians. For the reasons set forth below, we affirm.

3. Criminal Law: Affirmed: Sentence of 110 years IDOC for first degree murder, constituted as a sentence of 55 years plus a firearm enhancement add-on of 45 years was not excessive, nor was the 45-year add-on improper, and in setting the term of the add-on the trial court could properly rely on other firearms offenses committed by the defendant, including prior convictions for weapons-related offenses as well as the weapon possessed by the defendant at the time of his arrest. Jorgensen, J.

No. 2016 IL App (2d) 140357  People v. Walsh  Filed 5-9-16 (TJJ)


Defendant, Kody Walsh, while seated in the Ford Explorer of Ebert Davison, a friend of his, shot Lori Daniels in the back of the head. He then, at gunpoint, made Davison continue driving; forced Davison out of the car once they arrived at Davison’s house  in Beloit; led police on a high-speed chase, taking a selfie while doing so; and shot at police after crashing Davison’s car and while fleeing the scene. Based on these facts, a jury found defendant guilty of numerous offenses, including first-degree murder,  and he was sentenced to an aggregate term of 110 years’ imprisonment. On his murder conviction, the court sentenced defendant to 55 years’ imprisonment and imposed an additional 45-year term based on the fact that defendant personally discharged a  firearm that caused Daniels’ death (firearm add-on) Defendant moved the court to reconsider his sentence, arguing that it was excessive, and the court denied the motion. In this timely appeal, defendant argues that the court erred in imposing the 45-year  firearm add-on, because (1) that term was based on unrelated firearm offenses, not the murder of Daniels; and (2) the court had already considered those offenses in assessing the 55-year sentence for the murder. For the reasons that follow, we affirm.

4. Criminal Law/Traffic: Affirmed: Trial court did not err in suppressing evidence (and granting rescission of statutory summary suspension) in case where police entered defendant's home and arrested him pursuant to investigation of single-car accident, where defendant's wife did not consent to entry and police were not justified in entry on claim that it was necessary to see if defendant needed medical care, in light of statements by wife and circumstances tending to bely a belief that defendant had been seriously injured. Spence, J.

No. 2016 IL App (2d) 150340  People v. Swanson  Filed 5-9-16 (TJJ)


The State appeals from the judgment of the circuit court of De Kalb County granting defendant Scott S. Swanson’s motion to suppress evidence and his petition to rescind his statutory summary suspension. Because the warrantless entry into defendant’s  home, which was justified by neither consent nor the need for emergency aid, violated the fourth amendment, the trial court properly granted the motion to suppress and the petition to rescind. Thus, we affirm.

4 Appellate Cases Posted 5-6-16

1. Criminal Law: Affirmed: Trial court properly refused to instruct jury as to defense of necessity in case of possession of a shank inside county jail based upon alleged threats and assaults against him, where those alleged events took place well prior to defendant's possession of the shank, and thus failed to satisfy the requirement that any threat be "immediate." Reyes, J.

No. 2016 IL App (1st) 133497  People v. Boston  Filed 5-6-16 (TJJ)


Defendant Sylvester Boston was charged by indictment with possession of contraband in a penal institution. The indictment specifically alleged he possessed a shank that was discovered in his waist band while in the Cook County Department of Corrections (CCDOC) on July 23, 2010.1 After a jury trial, defendant was found guilty of that offense and was sentenced to five years' imprisonment. On appeal, defendant contends the trial court erred when it failed to instruct the jury regarding the defense of necessity and that his right to present a meaningful defense was violated when the trial court limited or excluded certain evidence. For the reasons that follow, we affirm the judgment of the circuit court.

2. Mortgqage Foreclosure: Affirmed: Trial court properly denied mortgagor's motion to dismiss mortgage foreclosure complaint, founded upon a claim that the form complaint set forth in Section 15-1504 of the Mortgage Foreclosure Act and relating to "deemed and construed" allegations violated the United States and Illinois Constitutions, as the complaint authorized is not violative of either constitution. Hoffman, J.

No. 2016 IL App (1st) 152738  Wells Fargo Bank N.A. v. Bednarz  Filed 5-6-16 (TJJ)


The plaintiff, Wells Fargo Bank, N.A., filed an action under the Illinois Mortgage Foreclosure Law, seeking to foreclose on residential property owned by the defendant, Chester Bednarz. The defendant moved to dismiss the complaint under section 2-615  of the Code of Civil Procedure, arguing that it relied upon form allegations contained in section 15- 1504(c) of the Foreclosure Law which violate the procedural due process guarantees of the United States Constitution (U.S. Const., amends. V, XIV), and the separation of powers doctrine of the Illinois Constitution. Ill. Const. 1970, art. II, § 1. The circuit  court denied the defendant's motion and subsequently entered summary judgment for Wells Fargo. The defendant now appeals, challenging only the court's denial of his motion to dismiss. For the reasons that follow, we affirm.

3. Criminal Law: Reversed and remanded: Trial court denial of defendant's motion to withdraw his guilty plea to first degree murder (and sentence of 50 years' imprisonment) was improper, where defense counsel failed to comply properly with SCR 604(d) where he did not certify that he had consulted with defendant to ascertain defendant's contention of error relating to plea itself, in addition to contentions as to resultant sentence. McDade, J.

No. 2016 IL App (3d) 140262  People v. Jordan  Filed 5-6-16 (TJJ)


Defendant, David Jordan, pled guilty to first degree murder. Defendant subsequently filed a motion to withdraw his guilty plea, which the trial court denied. Defendant appeals arguing that postplea counsel failed to strictly comply with Illinois Supreme  Court Rule 604(d) because he did not certify that he consulted with defendant to ascertain defendant's contentions of error in the entry of the guilty plea. We reverse and remand for new postplea proceedings.

4. Trusts and Estates: Affirmed in part, and vacated in part: In action claiming that defendant attorney exercised undue influence over settlor of trust in amending trust documents to provide that settlor's estate would pass in substantial part to church in which it was alleged that attorney was an active member, trial court did not err in ordering production of documents in attorney's possession over claims that they were protected by attorney-client and work product privileges; as attorney's failure to comply with trial court order commanding production was made in good faith to secure review of order, contempt order vacated. McDade, J.

No. 2016 IL App (3d) 150519  Eizenga v. Unity Christian School of Fulton, Illinois  Filed 5-6-16 (TJJ)


The plaintiff, Dale A. Eizenga, as the Trustee of the Walter B. Westendorf Trust, filed an interpleader action against numerous defendants, including Unity Christian School of Fulton and Camp Courageous of Iowa, and alleged that Westendorf’s attorney,  Russell J. Holesinger, exerted undue influence over Westendorf regarding the gift of nearly the entirety of the Trust estate to Unity Christian School. Holesinger refused to disclose certain documents in discovery, alleging that they were protected by the  attorney-client privilege and the work product doctrine. The circuit court disagreed and ordered Holesinger to produce the documents. Holesinger appealed after he was found in contempt for failing to comply with the court’s order. On appeal, Holesinger  argues that the circuit court erred when it ruled that the documents were not protected by the attorney-client privilege or the work product doctrine. He also requests that we vacate the order finding him in contempt for failing to comply with the circuit  court’s order to disclose the documents. We affirm in part and vacate in part.

3 Appellate Cases Posted 5-3-16 

1. Public Employment: Affirmed: Trial court properly held that Board of Education decision to terminate teacher for allegedly failing to list aspects of his prior employment with police department on his employment application, and for allegedly failing to report principal who asked him to falsify test results was against the manifest weight of the evidence, and properly ordered teacher's reinstatement with back pay. Simon, J.

No. 2016 IL App (1st) 141388  Jackson v. Board of Education of the City of Chicago  Filed 5-3-16 (TJJ)


Defendant Board of Education of the City of Chicago (Board) terminated petitioner Victor Jackson's employment as a tenured teacher for violation of Board's rules and policy finding that he failed to immediately report that his principal asked him to cheat  on the Illinois Standard Achievement Test (ISAT) and for falsifying his employment application by omitting his previous employment and discharge with the Chicago police department (CPD). After a hearing, the hearing officer found the Board did not  prove by a preponderance of the evidence any of the charges against Jackson and recommended reinstatement. The Board accepted the hearing officer's findings of fact and the conclusion that Jackson did not participate in the cheating, but terminated  Jackson's employment for failing to report the test irregularities and for falsifying his employment application. Following Jackson's complaint for administrative review, the circuit court held that the Board's decision was against the manifest weight of the  evidence, reversed the Board's order and reinstated Jackson with back pay and benefits. Affirmed.

2. Employment Discrimination: Affirmed: trial court properly granted summary judgment to employer in case where employee alleged that he was the victim of age and race discrimination, where evidence showed that plaintiff was fired due to meet legitimate performance expectations. Hyman, J.

No. 2016 IL App (1st) 151762  Kreczko v. Triangle Package Machinery Co.  Filed 5-3-16 (TJJ)


After receiving several customer complaints about his job performance and unprofessional behavior, Triangle Package Machinery Company fired Andrew Kreczko. Four months later, Triangle hired a younger, Hispanic employee to fill Kreczko's position.  Kreczko, 51, sued Triangle alleging age, disability, and racial discrimination. The trial court dismissed the racial discrimination claim, and later granted Triangle's motion for summary judgment on the remaining claims, finding (i) Kreczko failed to  establish a prima facie case of unlawful discrimination because it was shown that Kreczko fell short in meeting his legitimate performance expectations, and (ii) Triangle's reason for firing Kreczko was not a pretext for unlawful discrimination. We affirm. The record shows Triangle terminated Kreczko for unsatisfactory job performance and this reason was not pretextual. Further, the trial court correctly let the entire affidavit stand as being made on personal knowledge except for a single paragraph, which  was stricken.

3. Domestic Relations: Affirmed: Trial court properly ruled that husband was not entitled to vacate judgment of dissolution and "postnuptial agreement," even though husband was not represented by counsel and claimed coercion, where circumstances as testified to showed tha husband was not coerced into signing agreement. Holdridge, J. (Wright, J., sp. concurring).

No. 2016 IL App (3d) 140990  In re Marriage of Labuz  Filed 5-3-16 (TJJ)


The circuit court of Peoria County entered a final judgment for dissolution of marriage which dissolved the parties’ marriage and ordered respondent Jeffrey Labuz (Jeffrey) to pay maintenance and child support. A postnuptial agreement signed by the parties was incorporated into the judgment. Jeffrey did not contest the entry of the judgment at the time it was entered. However, approximately five months later, Jeffrey filed a motion to vacate the judgment for dissolution of marriage pursuant to section 2-1401 of the Code of Civil Procedure, arguing that the parties’ postnuptial agreement was unconscionable. Jeffrey subsequently filed an amended motion to vacate the judgment which raised essentially the same arguments. Karen filed a motion for summary judgment. After conducting an evidentiary hearing on Jeffrey’s motion, the circuit court denied the motion. Jeffrey filed a motion to reconsider, which the circuit court denied.

3 Appellate Cases Posted 5-2-16

1. Parentage/Appellate Reveiew: Affirmed: Bystander's report submitted with appellate record did not comply with SCR 323 in that it did not appear that petitioner-appellee was ever involved in the preparation of the bystander's report, or ever had notice regarding its sought for preparation. Affirmed. Birkett, J.

No. 2016 IL App (2d) 150643  In re Parentage of G.E.  Filed 5-2-16 (TJJ)


Respondent, Nicole O., appeals the judgments of the trial court declining to stay contempt proceedings brought against her by petitioner, Michael N., and holding her in civil contempt of court. We hold that the record is inadequate for our review, as the  bystander’s report submitted by respondent is not in compliance with the procedures set forth in Illinois Supreme Court Rule 323(c) (eff. Dec. 13, 2005) for the preparation and certification of a bystander’s report. Therefore, we affirm.

2. Public Employees Benefits: Affirmed: Regardless of whether plaintiff police officer was entitled to mandamus relief in connection with claim that catastrophic work injuries required Village to pay his insurance premiums, action was barred by the five-year statute of limitations requiring it to have been brought within that time, and trial court ruling that statute did not begin to run until 2011 was erroneous. Birkett, J.

No. 2016 IL App (2d) 150677  Hancock v. Village of Itasca  Filed 5-2-16 (TJJ)


On June 27, 2013, plaintiff, David E. Hancock, a former police officer employed by the Village of Itasca (Village), filed a two-count complaint in the circuit court of Du Page County against the Village. In count I, plaintiff sought a declaratory judgment  that, because he suffered a catastrophic injury, the Village was obligated, pursuant to section 10(a) of the Public Safety Employee Benefits Act, to pay the entire premium for his coverage under the Village’s health-insurance plan. In count II, plaintiff sought  an order of mandamus compelling the Village to pay the premium. The trial court entered summary judgment for the Village on the basis that plaintiff suffered his injury before the effective date of the Act. We affirm because, regardless of whether the Act would otherwise apply, plaintiff’s action was barred by the applicable statute of limitations.

3. Election Law: Affirmed: Trial court properly reversed election board decision to remove judicial candidate's name from ballot in face of claims that candidate's petitions were not properly notarized and did not comply with Election Code in other regards. McLaren, J.

No. 2016 IL App (2d) 160115  Wiesner v. Brennan  Filed 5-2-16 (TJJ)


Jennifer Shilakis Wiesner (Candidate) filed nomination papers to be a candidate of the Democratic Party for nomination to the office of resident circuit court judge for the Eighteenth Judicial Circuit, Du Page County, in the March 15, 2016, general primary  election. After Joan C. Brennan (Objector) filed objections to the nomination papers, the Du Page County Election Commission (Commission) found Candidate to be ineligible to be on the ballot pursuant to section 7-10 of the Illinois Election Code (10  ILCS 5/7-10 (West 2014)). On judicial review, the trial court set aside the Commission’s decision and ordered that Candidate’s name be placed on the ballot. On March 3, 2016, this court entered a written order affirming the judgment of the trial court and  reversing the Commission’s order, stating that the Commission’s “decision to remove the Candidate from the March 15 primary ballot was reversible error.” Our written order also stated that a “full disposition will be filed in due course.” This is that  disposition.