Illinois Supreme and Appellate Court Case Summaries
    
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By  Robert Clifford( RJC) ,Timothy J. Joyce(TJJ) and Jean Cocozza(JC),

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1 Appellate Case Posted 2-26-15 

1. Hospitals: Certified questions answered: In action by doctor seeking damages and injunctive relief stemming from hospital committee decision to deny him hospital privileges, plaintiff doctor's allegations that injury to his reputation and to his income resulted were not sufficient to allege and establish necessary "willful and wanton conduct" under the Hospital Act, and trial court properly dismissed plaintiff's count in that regard, but trial court should have dismissed Whistleblower Act count where Medicaid payments to hospital did not constitute state aid under Whistleblower Act. Steigmann, J.

No. 2015 IL App (4th) 140255  Larsen v. Provena Hospitals  Filed 2-26-15 (TJJ)


In doctor's action for damages stemming from alleged "willful and wanton conduct" by hospital in retaliation for plaintiff's whistleblowing activities, the trial court certified the following four questions for interlocutory review  pursuant to Illinois Supreme Court Rule 308(a): "[1]. Is a doctor required to plead actual or deliberate intention to harm his person [to] state a claim for willful and wanton misconduct under the *** [Hospital Act] *** and Lo? [2].  Alternatively, does a doctor state a claim for willful and wanton misconduct under the *** [Hospital Act] *** and Lo *** by pleading actual or deliberate intention to harm his professional reputation? * * * [3]. Does plaintiff's claim  for violation of the *** Whistleblower [Act] constitute a claim for civil damages subject to peer review immunity afforded by the *** [Hospital Act]? [4]. Is payment to a hospital under assignment from a Medicaid recipient, pursuant  to the Social Security Act, § 1902(a)(32), 'funding' by the State as defined by the *** [Whistleblower Act]?" We answer the first certified question in the affirmative, the remaining three certified questions in the negative, and remand  for further proceedings.

3 Appellate Cases Posted 2-25-15

1. Farming: Reversed: Local village ordinance that prohibited commercial farming within the municipal boundaries of the village was preempted by State Farm Nuisance Suit Act, which itself prohibited use of the local ordiance to operate to deem the farm a nuisance notwithstanding any cessation in farming the land at issue, or changing the "crop" farmed from a tree nursery to corn and soybeans. Scmidt, J. (Lytton, J., dissenting).

No. 2015 IL App (3d) 130445  The Village of LaFayette v. Brown  Filed 2-25-15 (TJJ)


In April 2012, the Village of LaFayette (Village) enacted ordinance No. 420, which declared commercial farming within the boundaries of the Village to be a nuisance. LaFayette Ordinance No. 420 (eff. Apr. 2, 2012). Shortly thereafter, the Village brought an action against defendants, Jerod and Dana Brown, seeking conviction for a violation of the ordinance and to enjoin the defendants from further commercial farming on the property. Following a bench  trial in the circuit court of Stark County, the court found defendants not guilty of violating the ordinance as the Village failed to prove the element of notice. The trial court did, however, issue an injunction prohibiting further  commercial farming on the property. Defendants appeal, arguing that the Farm Nuisance Suit Act (740 ILCS 70/1 (West 2012)) preempts the Village’s ordinance No. 420, that application of the Farm Nuisance Suit Act precludes  enforcement of the ordinance against defendants, and that the ordinance is an unreasonable and, therefore, unconstitutional exeercise of the Village's authority. We reverse.

2. Domestic Relations/Paternity: Vacated in part and reversed in part and remanded: Claim by husband in divorce proceedings that he was not eight-year-old child's father, proven by DNA testing, was barred by two-year statute limitations in Parentage Act, and trial court decision that "father" did not have to pay child support vacated and matter remanded to determine amount of child support. Schmidt, J.

No. 2015 IL App (3d) 130775  In re Marriage of Ostrander  Filed 2-25-15 (TJJ)


Petitioner, Jerry L. Ostrander, filed a petition for dissolution of his marriage to respondent, Starr E. Ostrander. In the petition, Jerry asserted that one of the two children born to Starr during the marriage, R.O., was not Jerry's biological child. After deoxyribonucleic acid (DNA) testing confirmed that Jerry was not the biological father of R.O., Jerry filed a pleading entitled "Motion Regarding Finding No Paternity." The court granted Jerry's motion, finding that Jerry  was not R.O.'s biological father and therefore had no support obligation. The court denied Starr's motion to reconsider the order and the judgment of dissolution of marriage. Starr appeals, arguing that Jerry's motion regarding paternity was barred by the relevant statute of limitations. We reverse in part, vacate in part, and remand for further proceedings.

3. Criminal Law: Affirmed: Where defendant was in custody for three separate cases, but was not tried within 120 days under the Speedy Trial Act, either as to elected case or other two cases, trial court properly granted motion to dismiss all three cases, as subsequent 160-day period did not apply unless defendant tried on first case within statutory time. Cates, J.

No. 2015 IL App (5th) 130255  People v. Raymer  Filed 2-25-15 (TJJ)


The defendant, Dean Raymer, was charged with three separate felonies, driving while license revoked, unlawful use of a credit card, and escape, and he was held in simultaneous custody in all three cases. The State elected to prosecute the driving on revoked charge first, but then failed to bring that case, or any other pending case, to trial within 120 days from the date the defendant was placed in custody. The defendant moved to dismiss all three cases on the ground  that the State violated his statutory right to a speedy trial under section 103-5 of the Code of Criminal Procedure of 1963. The State confessed the defendant's motion to dismiss the driving-on-revoked case, and that case was dismissed with prejudice. The State objected to the dismissal of the remaining cases. After considering the arguments of counsel, the trial court dismissed the unlawful use of a credit card and escape cases with prejudice. On appeal, the State  contends that the trial court erred as a matter of law in dismissing the unlawful use of credit card and escape charges because the speedy-trial clock was tolled under section 103-5(e) of the Code,  upon the State's election to try the driving-on-revoked charge first. We affirm.

1 Appellate Case Posted 2-24-15 

1. Civil Procedure: Affirmed in part and vacated in part: In action by plaintiff for damages stemming from alleged communication to her by defendant of a sexually transmitted disease, trial court properly required defendant, pursuant to SCR 215, to submit to a medical examination to determine whether he suffered from any such disease, and the trial court's order was not prohibited by the patient-physician privilege or the Illinois Constitution; but once defendant filed notice of appeal to seek appellate ruling with respect to "friendly contempt" for failure to comply with Rule 215 order, trial court lacked jurisdiction with respect to second claim by plaintiff that defendant was in contempt, and resulting default judgment against defendant vacated. Liu, J.

No. 2015 IL App (1st) 133424  Doe v. Weinzweig  Filed 2-24-15 (TJJ)


Defendant, Norman Weinzweig, appeals two contempt orders entered by the circuit court. In the first order, the court held defendant in indirect civil contempt for failing to comply with a Rule 215 order that required him to undergo a physical examination  and blood test. After defendant filed a notice of appeal from the contempt order, the court entered a second order for indirect civil contempt and a judgment of default against him. On appeal, defendant seeks to vacate both contempt orders and the  underlying Rule 215 order. He contends that the court abused its discretion when it entered the Rule 215 order and that the order violated his patient-physician privilege and his constitutional right to privacy. He further contends that he had a good-faith   basis for refusing to comply with the Rule 215 order and that the court lacked jurisdiction to enter the second contempt order. We affirm in part and vacate in part.

3 Appellate Cases Posted 2-23-15

1. Domestic Relations/Child Support: Appeal dismissed: Husband's appeal of trial court order relating to child support, retroactive child support, and attorneys' fees dismissed, where husband failed to comply with trial court orders and actively sought to evade trial court rule to show cause why he should not be held in contempt of court for failing to comply with those orders he sought to appeal. Schostok, J.

No. 2015 IL App (2d) 140345  In re Marriage of Hill  Filed 2-23-15 (TJJ)


The respondent, Ronald M. Hill, Jr., appeals from the December 30, 2013, order of the circuit court of Kendall County setting child support, ordering that he pay retroactive child support, and ordering that he pay attorney fees for the petitioner, Jennifer Hill. For the reasons that follow, we dismiss Ronald’s appeal.

2. Mortgage Foreclosure/Debt Collection: Affirmed: Appellate court had jurisdiction only as to propriety of trial court's ruling on defendants' 2-1401 petition, filed more than 30 days after the order confirming a sale pursuant to a foreclosed mortgage, and defendants' claim that plaintiff was not a "licensed debt collector" under the Collection Agency Act did not deprive the trial court of jurisdiction in connection with the mortgage foreclosure so as to warrant granting the 2-1401 petition. McLaren, J.

No. 2015 IL App (2d) 140145  JPMorgan Chase Bank, N.A. v. Ontiveros  Filed 2-23-15 (TJJ)


Defendants, Geronimo and Catalina Ontiveros, appeal after what they assert is the denial of their motion to vacate a default judgment of foreclosure and the order confirming the ensuing sale. However, as we will discuss, the only matter of which we have jurisdiction on appeal is the denial of defendants’ petition for relief from judgment, brought under section 2-1401 of the Code of Civil Procedure. On the merits, defendants assert that, because plaintiff was not a licensed collection agency under the Collection Agency Act the foreclosure and confirmation orders were void. We hold that lack of such licensure could not have made the judgments void. We therefore conclude that defendants did not state a basis for section 2-1401 relief, and so we affirm the petition's denial.

3. Juvenile Delinquency/Extended Juvenile Jurisdiction: Reversed in part, and affirmed in part, and remanded: Trial court erred in dismissing juvenile's post-conviction petition following his re-sentencing for criminal sexual assault under the provisions of extended juvenile jurisdiction, where respondent alleged that he was not properly admonished during "adult" portion of EJJ proceedings regarding his right to persist in his plea of not guilty and record did not contain a jury waiver. Welch,  J.

No. 2015 IL App (5th) 140341  In re E.W.  Filed 2-23-15 (TJJ)


Based on this record, we conclude that the respondent's postconviction petition has set forth the "gist" of a constitutional claim that his guilty plea was not knowing and voluntary. Accordingly, we reverse the summary dismissal of the respondent's postconviction petition and we remand the case for second-stage proceedings under the Act.

6 Appellate Cases Posted 2-20-15

1. Domestic Relations: Dismissed for want of jurisdiction: Husband's late filing of notice of appeal from penitentiary where he was serving a sentence of imprisonment in connection with Medicare fraud did not comply with SCRs 373 and 12(b)(3) and was thus not timely, and Appellate Court had no jurisdiction to hear appeal relating to trial court order relating to bank accounts turned over to wife for children's benefit. Gordon, J. (Modified on denial of rehearing).

No. 2015 IL App (1st)132611  In re Marriage of Sheth  Filed 2-13-15 (TJJ)


The instant appeal arises from a trial court order changing the custodian of four bank accounts belonging to respondent Sushil Sheth’s children; prior to the order, Sushil served as custodian. Sushil claims he was denied due process, because he was not  afforded an opportunity to timely respond to the motion of his ex-wife, petitioner Anita Sheth, to change the custodian, nor was he afforded an opportunity to argue his position before the trial court denied his motion to reconsider. By contrast, Anita claims that Sushil has no standing to bring the instant appeal and that his appeal is barred by res judicata. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

2. Election Law: Aldermanic candidate stricken from ballot by board of election commissioners not entitled to administrative review in circuit court of board's decision where candidate failed to comply with service provisions of Election Code, and failed to name board of election commissioners as a party in action for administrative review. Gordon, J.

No. 2015 IL App (1st) 150263  Bey v. Brown  Filed 2-20-15 (TJJ)


On January 5, 2014, the Chicago Board of Election Commissioners notified plaintiff Curtiss Llong Bey of its decision not to print his name on the February 24, 2015, ballot for alderman of the ninth ward of the City of Chicago. Plaintiff then filed a petition for review with the circuit court. On January 8, 2015, defendant George Brown objected to plaintiff's petition for judicial review on the basis that plaintiff: (1) failed to comply with the service provisions of section 10-10.1 of the Election Code (10 ILCS  5/10-10.1 (West 2012)) requiring service by registered or certified mail; and (2) failed to name the Chicago Board of Election Commissioners (Election Board) in his petition for review. On January 14, 2015, the circuit court dismissed the matter for lack of jurisdiction. For the following reasons, we agree and dismiss the appeal.

3. Parental Rights: Affirmed: Trial court finding that mother was an unfit parent and that it was in best interests of child to be adopted affirmed over claim that trial court did not properly apply the statutory balancing test for determining the child's best interest; trial court did not act as an advocate in asking questions of the person to whom adoption was ultimately granted; and respondent mother not entitled to a hearing to determine her fitness to go to trial. Gordon, J.

No. 2015 IL App (1st) 142391  In re N.T.  Filed 2-20-15 (TJJ)


The instant appeal arises from the juvenile court’s entry of an order terminating respondent Arielle T.’s parental rights to her daughter, four-year-old N.T. Respondent argues that the juvenile court’s decision was against the manifest weight of the evidence  and that she was denied due process by the juvenile court’s actions during the termination proceedings. For the reasons that follow, we affirm.

4. Prisoners' Rights: Affirmed: Plaintiff pro se claim for damages stemming from an allegation that he was not permitted to take a daily shower or use the phone or buy items from the commissary while a prisoner at Cook County Jail, and that the jail lost his clothing, was properly denied by summary judgment as barred by Tort Immunity Act. Hoffman, J.

No. 2015 IL App (1st) 140402  Black v. Dart  Filed 2-20-25 (TJJ)


The plaintiff, James Black, brought a pro se lawsuit against the defendant, Tom Dart, Sheriff of Cook County (Sheriff), for damages resulting from the plaintiff's alleged mistreatment while confined at the Count County Department of Corrections (DOC).  The trial court granted summary judgment in favor of the Sheriff under section 2-1005 of the Code of Civil Procedure. The plaintiff now appeals, contending that the court erred by (1) rejecting undisputed evidence  that he had opted out of a pending federal class action suit based upon the same subject matter; and (2) entertaining a motion for involuntary dismissal under section 2-619(a)(3) of the Code which was filed after the time for pleading had passed. For the following reasons, we affirm.

5. Domestic Relations: Affirmed in part and reversed in part: Trial court erred in concluding that "general" waiver by wife to any interest in husband's life insurance policies constituted a valid waiver, where the waiver was only general, and where after marriage husband did not remove wife as a beneficiary to life insurance policy and she was still so listed upon his death; but trial court did not err in concluding that wife did not waive her interest to a survining spouse annuity from husband's pension. O'Brien, J.

No. 2015 IL App (3d) 130651  The Estate of Albrecht  Filed 2-20-15 (TJJ)


Plaintiff, the estate of Douglas Albrecht (the Estate), challenged the payment of the proceeds of a life insurance policy and a surviving spouse annuity to defendant Cheryl Albrecht, Douglas’s former wife, arguing Cheryl waived her rights to the insurance  proceeds and annuity in the judgment of dissolution. The trial court found that Cheryl waived her rights to the insurance policy proceeds but not to the surviving spouse annuity. Cheryl appealed and the Estate cross-appealed. We affirm in part and reverse in part.

6. Workers' Compensation: Affirmed: Claimant was traveling to work on a "regular commute," rather than as a "traveling employee," and injury sustained on his way to work did not arise out of his employment, and was thus not cognizable under the Workers' Compensation Act. Holdridge, J.

No. 2015 IL App (2d) 130874WC  Pryor v. Illinois Workers' Compensation Commission  Filed 2-19-15 (TJJ)


The claimant, Lanyon Pryor, filed an application for adjustment of claim under the Workers’ Compensation Act, seeking benefits for an injury to his lower back which he sustained on July 21, 2008, while he was employed by Cassen Transport (employer).  After conducting a hearing, an arbitrator found that the claimant had failed to prove that he sustained an accident that arose out of and in the course of his employment. In so ruling, the arbitrator rejected the claimant’s argument that he was acting as a  “traveling employee” at the time he was injured. The arbitrator also found that the claimant failed to prove that the injuries he sustained, if any, were causally connected to his employment The claimant appealed the arbitrator’s decision to the Illinois  Workers’ Compensation Commission (Commission), which unanimously affirmed and adopted the arbitrator’s decision. The Commission found that the risk which resulted in the claimant’s alleged injury was a personal risk that was “not sufficiently  connected to [his] employment in order to be a risk peculiar to his work.” Moreover, like the arbitrator, the Commission also found that the claimant’s “travel for work had not yet begun when the accident occurred.” The claimant then sought judicial review of the Commission’s decision in the circuit court of Winnebago County, which confirmed the Commission’s decision. This appeal followed. Affirmed.

5 Supreme Court Case Posted 2-20-15  

1. Criminal Law/UUW: Appellate court judgment reversed in part and affirmed in part: In this decision, the Illinois Supreme Court noted that, prior to the date of this offense, a statutory amendment had come into effect which plainly authorizes a felon who possesses a loaded firearm to be convicted both based on the firearm itself and based on the ammunition inside that firearm. The appellate court was reversed on this point. The conviction and sentence based on the ammunition were both reinstated. The supreme court also held that charging Almond with separate offenses did not violate the one-act, one-crime rule. The defendant had claimed a fourth amendment violation, a theory which the circuit court rejected by denying his motion to suppress. The appellate court had affirmed the circuit court on this point. The arresting officer testified that an anonymous tip had been received that drugs were being dealt at the store. The officer testified that, on entering, he asked the defendant what he was doing there and whether he was in possession of any narcotics or weapons. The officer testified that the defendant said “I just got to let you know I got a gun on me.” The defendant was frisked, and the gun was recovered. At trial Almond denied he was even asked whether he had contraband and denied he ever told officers that he possessed a firearm. He specifically denied saying “I got to let you know I got a gun on me” because, he said, he would not tell a police officer that information because he knew “it’s wrong to have a gun.” The trial court recognized that these completely different versions of events involved a credibility issue and resolved it in the officer’s favor. In this decision, the supreme court said that the trial court’s finding of fact should be deferred to and was not shown to be against the manifest weight of the evidence. The encounter was held by the supreme court to be a consensual one, with no fourth amendment violation. The appellate court was reversed as to its finding that there could be only one conviction, but was otherwise affirmed. The original convictions and sentences were upheld. Justice Kilbride delivered the judgment of the court, with opinion.    Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion. Chief Justice Garman concurred in part and dissented in part, with opinion.

No. 2015 IL 113817     People v. Almond    Filed 2-20-15 (RJC)

 

In 2008, this Cook County defendant was arrested in a liquor store at 330 East Pershing Road in Chicago. He had an uncased and loaded .38-caliber firearm in his waistband. He had prior felony convictions—a 2008 Class 4 felony conviction for possession of a controlled substance and 2004 and 2003 Class 2 felony convictions for manufacture or delivery of a controlled substance. He was convicted in a bench trial on two counts—armed habitual criminal based on possession of a firearm and unlawful use of a weapon by a felon based on his possession of firearm ammunition. The trial court imposed six years’ imprisonment for the first and most serious offense, and imposed three years for the second (the only remaining count at issue here), both to run concurrently. The defendant’s appeal raised questions as to whether multiple convictions were authorized by statute and whether they were prohibited by the one-act, one-crime rule. The appellate court rejected the defendant’s fourth amendment challenges to his arrest and the recovery of the firearm, but held that the defendant could receive only one conviction for possessing one loaded firearm.

2. Criminal Law/UUW: Circuit court judgment affirmed in part and reversed in part and casue remanded: In 2013, the Illinois Supreme Court held in People v. Aguilar that it is a violation of the second amendment for a statute to establish a comprehensive ban which categorically prohibits possession and use of a firearm for self-defense outside the home. The statute held facially unconstitutional in Aguilar is the same one involved in two of the counts for which the defendant was convicted for carrying an uncased, loaded, and immediately accessible firearm. One of those counts charged the defendant with carrying the weapon on or about his person and the other charged that he did so on a public way. Relying on Aguilar, the Illinois Supreme Court held that the judgments on these two counts were properly vacated, and the circuit court was affirmed.  Four of the aggravated unlawful use of a weapon charges can stand because they are based on statutes which are constitutional and severable from the unconstitutional provisions invalidated in Aguilar. These involve weapon possession either while not having a FOID card, or while under age 21. The circuit court’s vacation of those four counts was reversed.  The circuit court’s judgment convicting and sentencing for one count of misdemeanor unlawful use of a weapon was vacated.  The cause was remanded to the circuit court for sentencing on the four valid convictions.  Justice Karmeier delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 115872   People v. Mosley   Filed 2-20-15 (RJC)


In March of 2012, Chicago police received a call about a person with a gun at the Dooley Park play lot at 3426 West 77th Street. Responding officers saw a group of children playing and a group of teenagers standing together. This defendant, who was then 19, walked away when the officers approached, and refused to stop when asked. The officers pursued, noticing his hand was on his right waist. When they got closer, he began to run, pulling a .32-caliber revolver out of his waistband and dropping it to the ground. The weapon was recovered and found to be fully loaded with six live rounds. It was loose and not enclosed in any type of gun case. The defendant was apprehended and arrested, and at that time had not been issued a valid Firearm Owner Identification (FOID) card. He did not have any previous felony convictions or juvenile adjudications.

In the circuit court of Cook County, a bench trial took place in which Mosley was found guilty of six counts of aggravated unlawful use of a weapon (which are felonies), and as to which the court found the evidence sufficient to convict. However, posttrial proceedings brought out questions concerning the constitutional validity of the involved statutes. After making findings of statutory unconstitutionality, the court vacated the six felony convictions and, instead, entered a judgment for misdemeanor unlawful use of a weapon. A sentence of 180 days and 15 months of probation was imposed. The circuit court’s rulings of statutory unconstitutionality brought the matter before the Illinois Supreme Court on direct appeal.

3. Juvenile/UUW: Circuit court judgment affirmed in part and reversed in part. Cause remanded: In this decision, the supreme court noted that regulations on the right to bear arms may be constitutionally enacted if they are reasonable. The charges filed against respondent based on the circumstances that he was under 21 years of age at the time of the offenses and did not have a valid Firearm Owner’s Identification (FOID) card fall into this category.   Justice Theis delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.  

No. 2015 IL 116834    In re the Interest of Jordan G.   Filed 2-20-15 (RJC)

 

This is a proceeding under the Juvenile Court Act which is based on charges that this 16-year-old respondent is delinquent for violating weapons provisions of the Criminal Code of 1961. At the time of the offenses alleged here, he was already on juvenile probation for a misdemeanor committed in 2012. The respondent raised constitutional challenges to the charges against him based on the second amendment right to bear arms.

The Illinois Supreme Court held in 2013 that it is a violation of the second amendment for a statute to establish a comprehensive ban categorically prohibiting possession and use of a firearm outside the home for self-defense. This means that the Class 4 form of the aggravated-unlawful-use-of-a-weapon statute under which this respondent was charged here for possessing an uncased, loaded and immediately accessible firearm is facially unconstitutional. The companion case of People v. Mosley, 2015 IL 115872 issues a similar ruling. The circuit court was affirmed in its dismissal of the charges based on this unconstitutional provision.

Here, the circuit court was affirmed in its dismissal of the charges based on the statutory language already held invalid, but was reversed in its dismissal of those based on lack of a FOID card and being under age 21. The cause was remanded for further proceedings.

4. Insurance/Rescission of policy: Appellate court judgment reversed. Circuit court judgment affirmed: In this decision, the court noted that the common law doctrine of “innocent insured” is not applicable here. This doctrine has been used to preserve coverage under an existing policy where there are multiple insureds and one of them is innocent of conduct which would fall within a policy exclusion. What is at issue here, however, is misrepresentation leading to formation of the insurance contract. The Illinois Insurance Code governs and provides for invalidating a policy where a misrepresentation is intended to deceive or materially affects the risk. Both factors are present here. This statute governs as an expression of public policy.  The circuit court acted properly in rescinding the policy in its entirety, and the appellate court erred in partially severing the policy to preserve coverage for the attorney claiming to be innocent.   As part of the rescission process, the insurer has refunded the premium. Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion. Justice Kilbride dissented, with opinion.

No. 2015 IL 117096    Illinois State Bar Association Mutual Insurance Company v. Law Office of Tuzzolino and Terpinas    Filed 2-20-15 (RJC) 

 

Two lawyers practiced together in one firm in Cook County. One of them was disbarred on consent in 2010. On behalf of that firm, he had filled out and signed a form on April 29, 2008, for renewal of legal malpractice coverage with plaintiff insurer effective May 1, 2008, through May 1, 2009. He replied in the negative to a question asking whether any member of the firm was aware of circumstances which might give rise to a claim not yet reported. However, a client he had represented since 2002 had grievances, and the other attorney in the firm allegedly became aware of this for the first time on June 10, 2008, after his own receipt of a lien letter from that client’s new attorney. This was reported to plaintiff insurer, who sought to rescind the policy. In summary judgment proceedings in the circuit court the policy was rescinded for misrepresentation.

The attorney who claimed he was innocent in connection with the misrepresentation appealed, arguing that he was not to blame and that the rescission should not apply to him. The appellate court agreed, and the insurer appealed to the Illinois Supreme Court.

5. Criminal Law/Solicitation/Solicitation of Murder: Affirmed: The supreme court said that the involved statutes are ambiguous when applied to the facts of this case and have to be construed, which it did in this decision. The solicitation statute does not contain “attempt” language, and, the court said, it must thus be assumed that the general statutory provision is applicable absent inherent possibility, which is not present here.  The court said that, although the legislature intended that uncommunicated solicitations are not to be treated as completed solicitations, nevertheless the intent of the defendant in this case is clear. The court rejected the defendant’s contentions that he is guilty of nothing, that the crime of attempted solicitation does not exist in Illinois, and that attempted solicitation is logically absurd or an “impermissible stacking of double inchoate crimes.” In recognizing the crime of attempted solicitation, the court noted that sentencing issues which might arise under a different set of facts are not present here, and such issues need not be reached in this decision.  Juatice Karmeier delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117108    People v. Boyce    Filed 2-20-15 (RJC)

 

In 2008, defendant Anthony Boyce was in the Lawrence Correctional Center, serving a sentence of natural life for a 2001 murder, when he used the prison mail to post a series of letters which were intercepted and opened by prison officials. The letters never reached the intended recipient. Boyce was charged and convicted in a Cook County bench trial for attempted solicitation of murder. Making much of the fact that his communications were never received, he claimed that this offense does not exist in Illinois, but the appellate court rejected this argument, reasoning that the lack of specific attempt language within the statutory definitions of solicitation and solicitation of murder is indicative of the legislature’s intent for the general attempt statute to apply to the offense of solicitation of murder. The Illinois Supreme Court, in this decision, affirmed the appellate court.


2 Appellate Cases Posted 2-19-15

1. Shareholder Derivative Action/Attorney fees: Affirmed:  Defendants have failed to demonstrate that the trial court erred in finding that Pfeiffer was eligible to be reimbursed for his fees and expenses pursuant to the corporate-benefit  doctrine.  A review of the record indicates that this award was “based upon conscience and reason, as opposed to capriciousness or arbitrariness,” and that the court’s factual findings were “the product of an orderly and logical deductive process.”  Thus, there was no abuse of discretion. McLaren, J. 

No. 2015 IL App (2d) 140271    Pfeiffer v. Begley     Filed 2-19-15 (RJC)

Plaintiff, Milton Pfeiffer, and defendants, Christopher B. Begley, David S. Brown, Gary Butler, Connie R. Curran, Daniel Hamburger, Darren R. Huston, William T. Keevan, Lyle Logan, Julia A. McGee, Fernando Ruiz, Harold T. Shapiro, Ronald L. Taylor, and Lisa W. Wardell (collectively, the Board), appeal from the trial court’s order awarding $75,000 in attorney fees to Pfeiffer. We affirm.

2. Criminal Law/Appeals: Appeal dismissed for want of jurisdiction: Here, the court did not assist defendant. Instead, it misadvised defendant that the time in which he could appeal was tolled when, as we have shown, it was not. Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result here is problematic in that respect. However, we do not have the authority to disregard our lack of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order. McLaren, J.   

No. 2015 IL App (2d) 150263    People v. Norton     Filed 2-19-15 (RJC)

Defendant, Robert Norton, appeals, challenging the restitution order entered as part of the sentence imposed for his conviction of aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2010)). His appeal is untimely under the rule in People v. Serio, 357 Ill. App. 3d 806 (2005). We therefore dismiss the appeal for want of jurisdiction.

3 Appellate Cases Posted 2-18-15

1. Mental Health Code/Invol. Admission: Affirmed: The public interest exception to the mootness doctrine applies to this case, and we thus need not address the capable-of-repetition exception. The May 9, 2013, petition seeking respondent's emergency inpatient admission by certificate was timely as it was filed within 24 hours after it was presented to Connie Shay-Hadley, the mental health facility director at Mount Sinai Hospital. Pucinski, J. 

No. 2015 IL App (1st) 132134    In re Linda B.     Filed 2-18-15 (RJC)

Respondent Linda B. appeals from an order of the circuit court of Cook County finding her to be a person subject to involuntary admission on an inpatient basis. Respondent contends that the circuit court's order should be reversed because the petition to involuntarily admit her was untimely filed in violation of section 3-611 of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/3-611 (West 2012)). Respondent acknowledges that the issue is moot, but contends this appeal falls within the public-interest and capable-of-repetition-yet-avoiding-review exceptions to the mootness doctrine.

2. IL Unemployment Ins. Act: Affirmed:  The record supports the Board of Review's conclusion that Hooker's nodding-off did not amount to deliberate and willful misconduct within the meaning of section 602(A) of the Act. Hyman, J. with Pucinski, J. dissenting.  

No. 2015 IL App (1st) 133886    Universal Security Corporation v. The Department of Employment Security     Filed 2-18-15 (RJC)

Defendant Darvin T. Hooker took on a second job as an unarmed night security guard at O'Hare International Airport. Less than three months later, a supervisor caught Hooker, while on duty, sitting at his station in an upright position, eyes closed, head tilted to one-side, and inert, in other words, asleep, an offense mandating discharge. Hooker then sought unemployment insurance benefits. An Illinois Department of Employment Security claims adjudicator denied him benefits under the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2012)), holding that Hooker had deliberately and willfully violated Universal’s reasonable policy prohibiting sleeping on the job. Hooker appealed, and the referee reversed, ruling that Hooker had not fallen asleep deliberately and willfully and, accordingly, could claim benefits. His employer, Universal Security Corporation, plaintiff, appealed the referee’s decision to the Board of Review of the Department of Employment Security, which affirmed. Next, Universal sought judicial review, and the circuit court affirmed. On appeal, Universal contends that the granting of unemployment benefits was clearly erroneous. We affirm. 

3. Breach of Promise Act : Reversed and remanded: To recover under the Promise Act, the plaintiff must prove that she suffered actual loss. Accepting all well-pleaded facts in the complaint as true, the plaintiff "made numerous purchases and nonrefundable deposits in anticipation of the wedding," and "incurred costs in the amount of $9,806.07."  In her action for breach of the promise to marry, the plaintiff may seek to recover those damages representing expenditures she made in anticipation of the wedding, even if those payments were monetary gifts from her parents funneled through their bank and credit card accounts.  The circuit court improperly granted the defendant's motion to dismiss on this basis. Schwarm, J. 

No. 2015 IL App (5th) 140260    Adkins v. Edwards     Filed 2-17-15 (RJC)

The plaintiff, Autum Adkins, filed an action in the circuit court of Williamson County against her former fiancé, Eric Edwards, pursuant to Illinois's Breach of Promise Act (the Promise Act) (740 ILCS 15/0.01 et seq. (West 2012)). The circuit court dismissed the plaintiff's action, finding that it was barred by affirmative matter defeating the claim (735 ILCS 5/2-619(a)(9) (West 2012)). For the following reasons, we reverse and remand.

5 Appellate Cases Posted 2-17-15

1. Illinois Commerce Commission/Com Ed/rates: Affirmed: The trial court lacks subject matter jurisdiction to hear plaintiffs' claim.  Relief sought by plaintiffs goes directly to ComEd's infrastructure and service, their complaint is within the exclusive jurisdiction of the Commission. Any changes to address plaintiffs' concerns must be made by the legislature or by our supreme court.  Harris, J. 

No. 2015 IL App (1st) 133678    Hawkins v. Commonwealth Edison Company     Filed 2-17-15 (RJC)

Plaintiffs, Robin Hawkins, Robert Dillon, and Got It Maid, Inc., on behalf of themselves and all others similarly situated, appeal the order of the circuit court dismissing their complaint against defendant, Commonwealth Edison Company (ComEd), for lack of subject matter jurisdiction. The trial court relied on the supreme court's holding in Sheffler v. Commonwealth Edison Co., 2011 IL 110166, and found that since plaintiffs' complaint concerned the utility's rates and infrastructure, the Illinois Commerce Commission (Commission) has exclusive jurisdiction over the action. On appeal, plaintiffs contend that the trial court erred in interpreting the holding of Sheffler and applying it to the case at bar. For the following reasons, we affirm.

2. Criminal Law/Post-Conviction Hearing Act: Affirmed: The defendant has failed to make a substantial showing of a constitutional violation. The plea court was not required to admonish defendant in regard to registration as a sex offender, the absence of such admonishment does not render his plea unknowing or involuntary. Harris, J. 

No. 2015 IL App (1st) 131073    People v. Cowart     Filed 2-17-15 (RJC)

Defendant Robert Cowart appeals from an order of the circuit court of Cook County granting the State's motion to dismiss his pro se petition for relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 (West 2010)). On appeal, defendant contends that the reasoning used by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010), and by the Illinois Supreme Court in People v. Hughes, 2012 IL 112817, required the plea court to admonish him of the requirement that he register as a sex offender. He asks this court to remand his case for an evidentiary hearing under the Act. We affirm.

3. Mortgage Foreclosure/Default Judg.: Affirmed: The party seeking to avoid confirmation of the sale has the burden of showing why the circumstances of the case fall within section 15-1508(b). Here, Barrie did not offer the circuit court any evidence demonstrating that Beal Bank failed to give requisite notice of the sale under section 15-1507, that the terms of the September 3, 2013 sale were unconscionable, or that the sale was conducted fraudulently, pursuant to section 15-1508(b)(i), (ii), and (iii). Liu, J. 

No. 2015 IL App (1st) 133898    Beal Bank v. Barrie     Filed 2-17-15 (RJC)

Defendant, Rosa Barrie (Barrie), pro se, appeals from orders of the circuit court of Cook County denying her motion under section 2-1301 of the Code of Civil Procedure (735 ILCS 5/2-1301 (West 2012)) to vacate a default judgment in a mortgage foreclosure action and confirming the judicial sale. In her motion to vacate, Barrie argued that plaintiff, LPP Mortgage, Ltd. (LPP), failed to send a grace period notice in compliance with section 15-1502.5 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1502.5 (West 2012)) and lacked standing to bring the suit. She also raises the argument, on appeal, that the circuit court lacked subject matter jurisdiction. We affirm.

4. Parentage: Reversed and remanded: The trial court erred by granting respondent’s motion for a directed finding.  The trial court’s interpretation of section 13.5 of the Parentage Act was erroneous. Nothing in section 13.5 requires that the petition seeking to enjoin must be filed prior to the child’s actual removal. This would lead to an absurd result, which we presume the legislature did not intend. McLaren, J. 

No. 2015 IL App (2d) 141126    Hedrich v. Mack     Filed 2-17-15 (RJC)

Petitioner, Ryan Hedrich, appeals the trial court’s grant of the motion of respondent, Ashley Mack, for a directed finding against petitioner. The trial court found that it lacked the authority to grant injunctive relief pursuant to section 13.5 of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/13.5 (West 2012)), because respondent removed their daughter from Illinois before petitioner filed his parentage action. On appeal, petitioner argues that the trial court’s interpretation of section 13.5 was erroneous. We reverse and remand.

5. Elections/Nomination papers/Signatures: Affirmed: Section 10-3's signature requirement is directory rather than mandatory.  Because we are not left with a definite and firm conviction that a mistake has been made, we accordingly affirm the circuit court's judgment affirming the Board's decision. Schwarm, J. 

No. 2015 IL App (5th) 150028    Jackson-Hicks v. The East St. Louis Board of Election Commissioners     Filed 2-17-15 (RJC)

The evidence established that although Parks had garnered a total of 171 signatures, 48 had been deemed invalid. His nomination papers thus included a total of 123 valid signatures, 13 short of the minimum required. At the conclusion of the hearing, the Board unanimously voted to deny the petitioner's objection and subsequently issued a written statement of its findings and decision. In this expedited appeal, we are asked to determine whether substantial compliance with the signature requirement for an independent candidate's nomination papers is sufficient to retain his name on the ballot for an upcoming mayoral election. For the following reasons, we conclude that it is.

4 Appellate Cases Posted 2-13-15

1. Criminal Law/Insanity/Zehr: Affirmed in part and vacated in part: The jury’s finding that the defendant was sane was not against the manifest weight of the evidence. Since the evidence was not closely balanced, the trial court’s failure to ask the jurors whether they understood and accepted the fourth Rule 431(b) principle was not reversible error.  Since the attempted first degree murder conviction is upheld, the aggravated battery with a firearm and aggravated battery of a child convictions should be vacated under one-act, one-crime principles.  O'Brien, J.

No. 2015 IL App (3d) 120741    People v. Tademy     Filed 2-13-15 (RJC)

The defendant, Roderick Tademy, appeals his conviction for attempted first degree murder, aggravated battery with a firearm, and aggravated battery of a child for shooting his 12-year-old son in the head.

2. Domestic Relations: Appeal dismissed for lack of jurisdiction: Since Sushil’s notice of appeal was filed more than 30 days after the denial of Sushil’s motion to reconsider, App. Crt. lacks jurisdiction to consider Sushil’s appeal.  Gordon, J.

No. 2015 IL App (1st) 132611    In re Marriage of Sheth     Filed 2-13-15 (RJC)

The instant appeal arises from a trial court order changing the custodian of four bank accounts belonging to respondent Sushil Sheth’s children; prior to the order, Sushil served as custodian. Sushil claims he was denied due process, because he was not afforded an opportunity to timely respond to the motion of his ex-wife, petitioner Anita Sheth, to change the custodian, nor was he afforded an opportunity to argue his position before the trial court denied his motion to reconsider. By contrast, Anita claims that Sushil has no standing to bring the instant appeal and that his appeal is barred by res judicata. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

3. Criminal Law: Affirmed in part and vacated in part: Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the following facts: (1) Maria met her death by criminal means; (2) Maria was abducted from the corner of Center Cross Street and Archie Place shortly after 6 p.m. on December 3, 1957, by “Johnny”; (3) defendant was “Johnny”; and (4) defendant killed Maria and disposed of her body in Jo Daviess County.  Also, the corpus delicti was proved beyond a reasonable doubt.  The testimony of the jailhouse informants was incredible. Having examined the evidence in the light most favorable to the State, as we are required to do, we conclude that the evidence was sufficient for any rational trier of fact to find that all of the essential elements of the crimes were proved beyond a reasonable doubt. Also, the exclusion of the FBI reports did not violate defendant’s right to present a defense, for two reasons: (1) the rule of evidence prohibiting their admission is not arbitrary, and (2) even if the FBI reports had been admitted, they do not tend to exonerate defendant.  Kidnapping and abduction of an infant must be vacated, as the State failed to prove any exception to those crimes’ three-year statutes of limitations in effect in 1957. Zenoff, J.

No. 2015 IL App (2d) 121364   People v. McCullough     Filed 2-11-15 (RJC)

Following a bench trial in 2012, defendant, Jack D. McCullough, was convicted of the 1957 kidnapping and murder of seven-year-old Maria Ridulph. He appeals. We affirm in part and vacate in part.

4. Domestic Relations/Probate/Child support arrearage: Reversed: Section 510(e) of the Marriage Act applies to Anita’s claim against the Estate for overdue child support. Under section 18-12(b) of the Probate Act, which section 510(e) incorporates, Anita’s claim is untimely and, consequently, barred. Therefore, the trial court erred in granting Anita’s motion to reconsider its dismissal of her petition. Since our decision on this issue is dispositive of this appeal, we need not address the Estate’s remaining contentions of error. Also, our decision moots Anita’s cross-appeal of the trial court’s decision denying her request for attorney fees in connection with her claim against the Estate.  Birkett, J.

No. 2015 IL App (2d) 130961    In re Marriage of Ross     Filed 2-11-15 (RJC)

Holly Ross, executor of the estate of James S. Ross (James, but collectively with Holly, the Estate), appeals from the trial court’s judgment in favor of Anita Ross Pruitt (Anita) on Anita’s petition for child support that James was ordered to pay Anita in the 1983 decree dissolving their marriage. We agree with the Estate that Anita’s petition to collect the child support arrearage was untimely under section 18-12(b) of the Probate Act of 1975 (755 ILCS 5/18-12(b) (West 2012)). Therefore, we reverse the trial court’s judgment.

5 Appellate Cases Posted 2-11-15

1. Criminal Law: Affirmed: Petition under Post-Conviction Hearing Act properly dismissed at second stage by trial court, and defendant could not claim on appeal that retained counsel did not provide reasonable assistance of counsel. Lavin, J. (Pucinski, J., dissenting).

No. 2015 IL App (1st) 123489  People v. Cotto  Filed 2-11-15 (TJJ)
Defendant Jesus Cotto appeals the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act. He contends that his privately retained postconviction counsel did not provide him reasonable assistance  because he failed to contest the State's assertion that his petition was untimely due to his culpable negligence. As a remedy, defendant requests that his case be remanded for new second-stage proceedings with different counsel. Affirmed.

2. Criminal Law: Affirmed in part and vacated in part: Indictment properly alleged that commission of domestic battery during course of kidnapping the victim properly alleged commission of felony domestic battery so as to render defendant guilty of aggravated kidnapping rather than kidnapping; aggravated kidnapping proved beyond a reasonable doubt despite claim that asportation was so minimal as to only be part of domestic battery; defendant not entitiled to a new sentencing hearing despite claim that triual court mistakenly believed aggravated kidnapping to be a so-called "50% case rathan an "85%" case; and one domestic battery conviction vacated as a lesser included offense of aggravated kidnapping charge. Fitzgerald Smith, J.

No. 2015 IL App (1st) 123381  People v. Sumler  Filed 2-11-15 (TJJ)


After a jury trial, defendant Hubert Sumler was found guilty of aggravated kidnapping, violation of an order of protection, and domestic battery. Defendant was sentenced to 28 years' imprisonment for aggravated kidnapping, 3 years'  imprisonment for violation of an order of protection, and 3 years' imprisonment for domestic battery, all sentences to run concurrently. On appeal, defendant contends: (1) his aggravated kidnapping conviction should be reduced to  kidnapping where the State failed to introduce evidence during trial of his prior domestic battery conviction that enhanced his domestic battery to a felony; (2) the State failed to prove him guilty of aggravated kidnapping where the asportation of the victim was so brief that it was merely a part of the commission of the separate offense of domestic battery; (3) this court should order a new sentencing hearing; and (4) his domestic battery conviction should be  vacated as a lesser included offense of aggravated kidnapping, which was predicated on the same domestic battery. The State properly concedes that his domestic battery conviction should be vacated as a lesser included offense of  aggravated kidnapping. For the following reasons, we affirm defendant's convictions for aggravated kidnapping and violation of an order of protection, and vacate his conviction for domestic battery; in addition, we otherwise affirm  his sentence, with the modification that his second 3-year term for domestic battery, accordingly, be vacated. 

3. Criminal Law: Reversed and remanded: Where defendant in solicitation of murder for hire case sought to perhaps retain attorney, but communicated no information to attorney that could be considered harmful to defendant, subsequent conversations by defendnat with jail prisoner already represented by attorney, who knew that State was seeking evidence of solicitation of murder by his client jail prisoner, claim if ethical violation by attorney could not stand, and trial court order suppressing wire-recorded statements by defendant to jail prisoner was reversed. Carter, J.

No. 2015 IL App (3d) 140192  People v. Shepherd  Filed 2-11-15 (TJJ)


Defendant, Christian L. Shepherd, was charged with solicitation of murder for hire. During pretrial proceedings, he filed a motion to dismiss the indictment or to suppress evidence that the State had allegedly obtained by taking  advantage of a lapse in ethical judgment by an attorney that defendant had consulted with about the case but had not retained. After a hearing, the trial court granted the motion in part and suppressed the contested evidence. The State  filed a certificate of impairment and brought this interlocutory appeal to challenge the trial court's ruling. We reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.

4. Traffic Law: Failure of city police department to transmit traffic citations to circuit court clerk within 48 hours as required by Supreme Court Rule 552 required dismissal of ticket, notwithstanding lack of prejudice claimed by defendant, and trial court order dismissing ticket affirmed. Moore, J.

No. 2015 IL App (5th) 140423  People v. Geiler  Filed 2-11-15 (TJJ)


The State appeals the July 31, 2014, order of the circuit court of Madison County that granted the motion of the defendant, Christopher M. Geiler, to dismiss a traffic citation for failure to timely file the citation with the circuit clerk  within 48 hours, in violation of Illinois Supreme Court Rule 552, as a part of a clear and consistent violation of said rule. For the following reasons, we affirm.

5. Domestic Relations: Affirmed: Under facts and circumstances of case, "unequal distribution" of marital assets to wife deemed on appeal to be equitable and proper. Chapman, J.

No. 2015 IL App (5th) 120448  In re Marriage of Troske  Filed 2-11-15 (TJJ)


The husband, Robert E. Troske, appeals a supplemental dissolution order, raising several issues. His primary contentions are that (1) the trial court abused its discretion by awarding the wife, Karen M. Troske, essentially all of the  couple's net wealth taking into account both the property distribution and assignment of debts; (2) the court abused its discretion by accepting the parties' stipulation that issues of maintenance and child support would be determined  using income figures for 2009 where the hearings on ancillary issues took place early in 2011 and the court's order was entered in September 2012; and (3) the court abused its discretion by entering its order 18 months after the hearings. In addition, Robert argues that the court abused its discretion in ordering him to pay a portion of Karen's attorney fees and that the court was biased against him. Karen filed a motion to dismiss, arguing that this court lacks  jurisdiction to consider this appeal. We ordered her motion taken with the case. We affirm the judgment and deny Karen's motion.

2 Appellate Cases Posted 2-10-15

1. Administrative Law/School Code: Reversed: Where school teacher purportedly arrived at work smelling of alcohol and submitted to breathalyzer test resulting in 0.053 reading, ewvidence was insufficient to prove the teacher was "under the influence" of alcohol so as to justify her firing, and Board's decision to terminate her employment was reversed. Additionally, Board's decision to take notice of medical handbook regarding extrapolation back to time of teacher's arrival at school was improper in light of lack of any foundation for reliance on it. Pierce, J.

No. 2015 IL App (1st) 132694  Kinsella v. Board of Education of the City of Chicago  Filed 2-10-15 (TJJ)


Defendant Board of Education of the City of Chicago (Board) terminated petitioner Kathleen Kinsella's employment as a tenured teacher for violation of Board rules and policy finding she was under the influence of alcohol when she  reported to work based on a bloodalcohol level of 0.053. After a hearing, the hearing officer found the Board did not prove by a preponderance of the evidence that Kinsella was under the influence of alcohol and recommended  reinstatement. The Board accepted the hearing officer's findings of fact but rejected her legal conclusion that the evidence did not support the finding of "being under the influence." The Board terminated Kinsella, finding she was  under the influence of alcohol in violation of Board policies. Petitioner filed a direct appeal to this court for administrative review pursuant to section 34-85(8) of the Illinois School Code. Reversed.


2. Criminal Law: Vacated and remanded: Previous remandment by Appellate Court for compliance with Supreme Court Rule 604(d) meant that prior trial court rulings regarding defendant's motion to vacate guilty plea and for reconsideration of sentence were void, and defendant was entitled both to again move to vacate her guilty plea and for reconsideration of sentence. McLaren, J. (Modified on denial of rehearing).

No. 2015 IL App (2d) 130924  People v. Bernard  Filed 2-10-15 (TJJ)


Defendant, Alia Bernard, appeals from the trial court’s denial of her motions to withdraw her guilty plea and reconsider her sentence. We vacate and remand for further proceedings.

2 Appellate Cases Posted 2-9-15

1. Criminal Law: Reversed: Where death of victim at a party attended by hundreds of persons was precipitated by the firing of 28 bullets from at least seven firearms, where State could not prove identity of shooter, State's evidence was insufficient to prove defendant guilty of first degree murder on accountability theory, even though State might have been successful if it had proceeded under felony murder/mob action theory, as evidence could not link defendant to the unidentifeid shooter so as to make defendant accountable by any common design, and armed habitual criminal conviction reversed where predicate felonies were rendered void by Aguilar decision. Cunningham, J.

No. 2015 IL App (1st) 113085  People v. Cowart  Filed 2-9-15 (TJJ)


Following a jury trial in the circuit court of Cook County, defendant Charles Cowart was convicted of first-degree murder under a theory of accountability. Following a simultaneous bench trial outside the presence of the jury, the  defendant was also convicted of being an armed habitual criminal. Subsequently, the trial court sentenced him to 51 years of imprisonment for first-degree murder and a concurrent 20-year sentence for the armed habitual criminal conviction. On direct appeal, the defendant argues that: (1) the State failed to establish beyond a reasonable doubt that he committed first-degree murder under a theory of accountability; (2) the State failed to prove beyond a  reasonable doubt that he was an armed habitual criminal; and (3) the trial court erred in imposing a 20-year firearm enhancement sentence on his first-degree murder conviction. For the following reasons, we reverse the judgment of the circuit cour of Cook County.

2. Juvenile Delinquency: Reversed: Trial court order sentencing respondent minor to serve 90 days in a residential treatment program for a violation of a previously imposed probation under the Juvenile Court Act reversed as violative of the 30-day limitation to a term of detention under Section 5-710(1)(a)(v). Steigmann, J.

No. 2015 IL App (4th) 140802  In re: Austin S.  Filed 2-9-15 (TJJ)


In September 2013, the trial court adjudicated respondent, Austin S. (born October 4, 1997), a delinquent minor under the Juvenile Court Act of 1987 based on respondent's admission that he possessed drug paraphernalia in violation  of section 3.5 of the Drug Paraphernalia Control Act. In November 2013, the court sentenced respondent to one year of probation. In May 2014, the State filed a second supplemental petition, alleging, in part, that respondent violated  the terms of his probation by (1) leaving his foster home and (2) not attending school. At a June 2014 hearing, respondent admitted that the State's allegations were true. Thereafter, the trial court modified respondent's probation by  adding the condition that he successfully complete the Adams County Juvenile Detention Center Treatment Program (Treatment Program). In September 2014, the court denied respondent's motion to reconsider his sentence. Respondent appeals, arguing that the trial court's order mandating that he successfully complete the Treatment Program is void because it violates the 30-day limitation for detention under section 5-710(1)(a)(v). We agree and reverse.

4 Appellate Cases Posted 2-06-15  

1. DCFS/Admin. Hrng./Sanctions: Affirmed: The parties agree that while this appeal was pending, J.C.'s adoption by Angela B. was finalized. Given these circumstances, it would be impossible for this court to grant plaintiffs effectual relief.  The issue has been rendered moot, and no advisory opinion or an opinion merely to guide future litigation will be rendered.  This case does not fall  within the narrow confines of the public interest exception to mootness.  To the extent that plaintiffs argue that DCFS should be sanctioned for positions taken during the proceedings in the circuit court, we similarly find that sanctions are not warranted. DCFS' arguments were not contrary to law and were reasonable under the circumstances.  Palmer, J.  

No. 2015 IL App (1st) 1303414   Benz v. The Department of Children and Family Services    Filed 2-06-15 (RJC)

Plaintiffs, Michael and Lynn Benz, served as foster parents for the minor, J.C., for approximately nine months. Following removal of the minor by the Department of Children and Family Services (DCFS), plaintiffs unsuccessfully pursued an administrative appeal, and then sought administrative review in the circuit court. Plaintiffs appeal from the circuit court's decision affirming DCFS's final administrative determination that J.C. should remain with a relative in Tennessee, Angela B. Plaintiffs concede that during the pendency of this case, Angela B.'s adoption of J.C. became finalized. As in the circuit court, the State maintains on appeal that plaintiffs' claims are moot.1 Plaintiffs argue the public interest exception to the doctrine of mootness applies in this case and this court should therefore review their claims.

2. Employment/Termination: Affirmed: In its decision, the Board found that the harm caused by the petitioner's conduct was reasonably foreseeable, given the facts and circumstances of the case. The Board noted that the petitioner did not "make a mere waving motion of the stapler," but rather "made a strong snapping motion with sufficient force to launch the stapler about ten feet through the air."   Based upon the evidence in the record, we do not find that an opposite conclusion is clearly evident, and therefore, we will not disturb the Board's negligence finding. The Board's finding that cause for discharge existed is not against the manifest weight of the evidence. Hoffman, J. with Hall, J. dissenting.   

No. 2015 IL App (1st) 141481   James v. The Board of Education of the City of Chicago    Filed 2-06-15 (RJC)

The petitioner, Ron James, appeals from a final administrative decision of the Chicago Board of Education (the Board) which resulted in the termination of his employment as a tenured teacher at the Hyde Park Career Academy High School. For the reasons that follow, we confirm
the decision of the Board.

3. Criminal Law/Post-Conviction Hearing Act: Affirmed: Entrapment is unavailable as a defense where the  defendant denies committing the offense. Here, as defendant did not admit to the crime at trial, his postconviction petition failed to allege or attest that he committed the shooting, and Hernandez’s affidavit stated only that he did not know if defendant was the shooter, defendant is precluded from raising entrapment as a defense. Accordingly, as it is indisputably meritless, the postconviction claim of actual innocence based on entrapment was properly dismissed. Counsel is accused of ineffectiveness for failing to discuss with defendant whether to submit to the jury a lesser-included-offense instruction, but defendant was not present at trial for counsel to do so. Counsel could not submit a lesser-included-offense instruction without the opportunity to discuss it with defendant and without defendant’s consent. Thus, by absenting himself from trial, defendant precluded counsel from fulfilling the obligation to discuss with him the availability of a lesser-included-offense instruction. Jorgenson, J.    

No. 2015 IL App (2d) 140485    People v. Montes    Filed 2-06-15 (RJC)

Following a jury trial in absentia, defendant, Augustine T. Montes, was convicted of attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2004)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)). He was sentenced to 26 years’ imprisonment for attempted murder and a concurrent 10-year term for aggravated discharge of a firearm. On direct appeal, we affirmed defendant’s conviction. People v. Montes, 2013 IL App (2d) 111132. Thereafter, defendant, with assistance of counsel, filed a postconviction petition pursuant to section 122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2012)). Defendant raised claims of actual innocence, based on entrapment, and ineffective assistance of  counsel. The trial court summarily dismissed the petition, and defendant appeals. For the reasons that follow, we affirm.

4. Criminal Law/Juvenile/Transfer: Affirmed in part, vacated in part, and remanded with instructions.: The supreme crt. has concluded that the automatic transfer provision was not unconstitutional, but strongly urged the legislature to review the statute based on the
current scientific and sociological evidence which indicates a need for the exercise of judicial discretion in determining the appropriate setting for the proceedings in the juvenile cases. In this case, the defendant has provided no basis on which to distinguish or deviate from that precedent.  Thus, based upon the existing precedent, we reject the defendant's claims that the automatic transfer provision in the Juvenile Court Act is unconstitutional.  While the circumstances of the defendant's interview were not perfect, based on the totality of the circumstances, the defendant's statements were voluntary, and not the result of coercion, deceit, or an overborne will.  The defendant has not established that the jury was prejudiced against him due to pretrial publicity. After reviewing the entire record, including the voir dire, we conclude that the trial court did not err in denying the defendant's motion for a change of venue. Cates, J.     

No. 2015 IL App (5th) 110492   People v. Baker    Filed 2-06-15 (RJC)

Following a jury trial, the defendant, Clifford W. Baker, was convicted of two counts of first degree murder and three counts of home invasion. He was sentenced to two mandatory terms of natural life in prison for the murders, and a term of 30 years for each of the home invasions, with one 30-year term to run consecutive to the sentences on all other counts. Although the defendant was 15 years old at the time he committed the murders, he was tried as an adult in accordance with the automatic transfer provision in the Illinois Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-130(1)(a) (West 2010)). On appeal, the defendant challenges the constitutionality of the automatic transfer provision, the constitutionality of the sentencing scheme as applied to juvenile defendants, the propriety of certain procedural and evidentiary rulings by the trial court,
and the effectiveness of his trial counsel. For the reasons to be stated, the defendant's mandatory natural life sentences for murder must be vacated and the cause must be remanded for a new sentencing hearing. We affirm in part, vacate in part, and remand with instructions.

1 Appellate Case Posted 2-05-15  

1. Insurance/Duty to defend/MSJ: Reversed and remanded: Since Farmers had a duty to defend against the CCMSI action, it also had a duty to defend the consolidated Bitner action. Even if the cases had not been consolidated, the order granting Farmers’ summary judgment motion was in error. A court is not required to put on blinders and may look beyond the complaint at other evidence appropriate to a motion for summary judgment.  Although the CCMSI complaint was filed after the declaratory judgment action, it was not filed by Neumann. There was no indication that the CCMSI complaint was self-serving, or filed merely to fill in information. Thus, it should have been considered by the circuit court in determining Farmers’ duty to defend.  Additionally, an affirmative defense does not negate the essential elements of the plaintiff's cause of action, but rather admits the legal sufficiency of the cause of action, asserting new matter by which the plaintiff’s apparent right of recovery is defeated.  In this case, Neumann raised defenses, not affirmative defenses, so the affirmative defenses were properly stricken. O'Brien, J.   

No. 2015 IL App (3d) 140026   Farmers Automobile Insurance Association v. Neumann    Filed 2-05-15 (RJC)

Defendant insured, John E. Neumann, appealed from a circuit court order granting the motion of the plaintiff insurer, Farmers Automobile Insurance Association (Farmers), for summary judgment and denying Neumann’s cross-motion for summary judgment, and finding that Farmers owed no duty to defend Neumann in one of two civil lawsuits that had been filed against Neumann. We reverse the grant of summary judgment in favor of Farmers and grant Neumann’s motion for summary judgment.

1 Supreme Court Case Posted 2-05-15  

1. Criminal Law/Postconviction: Circuit court’s dismissal upheld; appellate court reversed.: In this decision, the supreme court held that the 2011 decision announced a new rule of law which did not apply retroactively to convictions that were final at the time it was  nnounced, which Smith’s conviction was. No exception to this principle of nonretroactivity is applicable here because the issue here did not present a “watershed” rule impacting the accuracy of Smith’s conviction.

No. 2015 IL 116572   People v. Smith    Filed 2-04-15 (RJC)

 

This is a postconviction proceeding from Will County. The offender was sentenced to 30 years of imprisonment after using a handgun in 2010 to fatally shoot a man in the back. He had pled guilty to a count alleging that he did so “knowing such act created a strong probability of death or great bodily harm.” Under the negotiated plea agreement, the prosecution withdrew the statutory “firearm sentencing enhancement” which it had previously sought, and it recommended the term which was ultimately imposed. Smith did not take a direct appeal, and his conviction thus became final. Subsequent to this, the Illinois Supreme Court held in 2011 that, if a mandatory sentencing enhancement is called for by the factual basis for a plea agreement which is accepted by a trial court, the enhancement must be imposed, even if it is not included in the plea agreement. In the supreme court’s 2011 decision in People v. White, the defendant was allowed to withdraw his plea, and the cause was remanded so that he could proceed to trial if he so chose. On the basis of this decision, Smith filed the postconviction petition which is now at issue, alleging that the plea agreement and resulting sentence were void. The circuit court summarily dismissed the petition, but the appellate court reversed, remanding so that the offender could withdraw his guilty plea and go to trial. The State appealed.

           

5 Appellate Cases Posted 2-04-15  

1. Pension Code: Affirmed: The lack of any identifiable date triggering the right to seek administrative review weighs in favor of the conclusion that the Board did not render a final decision.  The Board's actions here failed to constitute valid final decisions on either Baldermann's or Kapelinski's application. Because the Board has not issued final administrative decisions, the trial court correctly found that the Board had jurisdiction to consider the amount of plaintiffs' pensionable salary in a later hearing. There was never any valid final administrative decision with respect to either plaintiff.  Mason, J.  

No. 2015 IL App (1st) 140482    Baldermann v. The Board of Trustees of the Police Pension Fund of the Village of Chicago Ridge    Filed 2-04-15 (RJC)

Plaintiffs, Timothy Baldermann and Dennis Kapelinski (collectively, plaintiffs), two former members of the Chicago Ridge police department, appeal an order of the circuit court of Cook County granting summary judgment to defendant, the Board of Trustees of the Police Pension Fund of the Village of Chicago Ridge (the Board), and dismissing plaintiffs' complaint for declaratory and injunctive relief. The trial court found that the Board had not rendered a final administrative decision regarding either plaintiff's pension application and, therefore, the Board had jurisdiction to convene a hearing to consider the salary attached to rank for pension purposes for both plaintiffs. We agree with the trial court and affirm.

2. Criminal Law: Affirmed: Shines failed to bring to the trial court's attention a specific and timely claim of ineffective assistance of counsel sufficient to trigger the duty to conduct an inquiry under Krankel, and there is no cause for remand. Also, Under the one-act, one-crime doctrine, a criminal defendant may not be convicted of more than one offense "carved from the same physical act."  Shines was properly convicted of both counts of aggravated fleeing and eluding a peace officer based on separate acts, and those convictions are not precluded by the one-act, one-crime doctrine. Hyman, J.  

No. 2015 IL App (1st) 121070    People v. Shines    Filed 2-04-15 (RJC)

On appeal, defendant, Deward Shines, contends that his case should be remanded for consideration of pro se posttrial claims of ineffective assistance of trial counsel under People v. Krankel, 102 Ill. 2d 181, 187-89 (1984). But, as the State argues in its brief, Shines filed his allegation of ineffective assistance of counsel after the trial court lost jurisdiction over the case because 30 days had passed from the entry of the final judgment. Shines successfully petitioned the Illinois Supreme Court to treat his tardy filing as a late notice of appeal. Shines v. Hyman, No. 115941 (May 13, 2013) (supervisory order).  Shines' second contention is that one of his two convictions for aggravated fleeing and eluding must be vacated under the one-act, one-crime doctrine. Following a bench trial, Shines was found guilty of two counts of aggravated fleeing and eluding a peace officer and various traffic offenses, then sentenced to concurrent terms of two years' imprisonment.

3.  Sexually Violent Persons Commitment Act/2-1401: Affirmed: To obtain relief under section 2-1401 against a judgment, a petitioner must plead and prove: (1) the existence of a meritorious claim; (2) due diligence in presenting the defense or claim to the trial court in the original action; and (3) due diligence in filing the section 2-1401 petition itself.  Here, the last two elements are not at issue. However, respondent failed to satisfy the first element, the existence of a meritorious defense to the original action. A change in the nonlegal standards on which experts base their opinions cannot be equated with a change in the law, much less a retroactive change that eliminates the clear authority that the trial court had when it entered the judgment. Schostok, J.  

No. 2015 IL App (2d) 140392    In re Commitment of Tittelbach    Filed 2-04-15 (RJC)

Respondent, John Tittelbach, appeals a judgment denying his petition for relief, under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), from an order recommitting him to the custody of the Department of Human Services (DHS). The recommitment order was based on a 1999 judgment that adjudicated respondent a sexually violent person (SVP) as defined by the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 1998)) and committed him to a treatment detention facility (TDF) under the custody of DHS. We affirm.

4.  Juvenile/Delinquency: Reversed: It is now "too late" to affirm the trial court's finding with respect to the element of age on the basis of information of record that was not judicially noticed by the judge prior to closing argument. The court’s decision adjudicating respondent delinquent must be reversed due to insufficient evidence presented by the State during the evidentiary portion of the adjudicatory hearing in the case at bar. Wright, J.  

No. 2015 IL App (3d) 140687    In re S.M.    Filed 2-04-15 (RJC)

The State charged respondent S.M., a minor, with unlawful possession of a concealable handgun under section 24-3.1(a)(1) of the Criminal Code of 2012 (720 ILCS 5/24-3.1(a)(1) (West 2012)). This particular provision of the Criminal Code proscribes the possession of a concealable firearm or handgun for persons under 18 years of age. During the adjudicatory hearing, the State did not present any evidence establishing the “age” element of the offense, but during rebuttal closing argument, it asked the trial court to take judicial notice of the court record showing the court’s juvenile jurisdiction attached for matters involving minors under 18 years of age. The trial court found respondent delinquent and sentenced him to complete 18 months’ probation. Respondent appeals. We reverse.

5. Settlements/Survival actions/representation: Order vacated: cause remanded: In failing to disclose the fact of the plaintiff's death, attorney intentionally concealed a material fact that would have reduced the overall value of the claim for damages. In addition, and equally troubling,  the attorney led the defendant to believe that he had authority to negotiate a settlement of the litigation on behalf of the party plaintiff, when the action was without a plaintiff as the plaintiff had died and a representative had not been substituted. Given the attorney's intentional misrepresentations and material omissions prior to and during the settlement negotiations, we conclude that the settlement agreement is invalid and unenforceable and that the trial court erred in granting the motion to enforce it. In this case, we believe that the material omissions and misrepresentations made by the attorney constitute serious violations of Rule 8.4.  Opinion sent to ARDC. Wright, J.  

No. 2015 IL App (5th) 140079     Robison v. Orthotic & Prosthetic Lab, Inc.    Filed 2-04-15 (RJC)


In this case, the plaintiff, Randy Robison, died on January 20, 2013. Upon Randy Robison's death, the product liability action was without a plaintiff, and the Crowder firm's authority to act on behalf of Randy Robison terminated. Under our procedural rules, this cause of action is one that survives the death of a party, and the personal representative of the decedent's estate is permitted to file a motion for substitution. In is case, the motion to substitute plaintiff was timely filed on December 30, 2013, and the order authorizing the substitution of the personal representative as the party plaintiff was entered on January 21, 2014. Thus, from January 20, 2013, to January 21, 2014, the product liability action was without a plaintiff, and the Crowder firm did not represent a party to the action. Settlement negotiations commenced in September 2013, and an agreement was ostensibly reached on September 24, 2013. The defendant, however, had no knowledge about the plaintiff's death or the appointment of a personal representative throughout the period of settlement negotiations. The defendant, Orthotic & Prosthetic Lab, Inc., appeals from an order of the circuit court granting a motion to enforce a settlement agreement in a product liability action. The defendant contends that the settlement agreement is invalid because the attorneys who purportedly represented the plaintiff during settlement negotiations lacked the authority to negotiate a settlement where the plaintiff had died and a proper representative of the estate had not been substituted as the party plaintiff. The defendant also contends that the settlement agreement is invalid because the attorneys who purportedly represented the plaintiff during settlement negotiations failed to disclose the  material fact that the plaintiff had died eight months prior to the commencement of the negotiations. For the reasons that follow, we vacate the order granting the motion to enforce the settlement and remand the cause for further proceedings.

3 Appellate Cases Posted 2-03-15  

1. Domestic Relations/MSA/Sanctions/Fees: Affirmed in part, reversed in part, vacated in part, and remand: As a matter of law that the trial court properly dismissed Deborah’s amended and second amended section 2-1401 petitions pursuant to Code sections 2-619(a)(4) and 2-619(a)(9). The trial court’s decision to grant leave to Deborah to file her second amended section 2-1401 petition is reversed.  In this case, the order entered by the trial court suggests that no evidence was taken on the issue of whether the redacted letters at issue were filed for any improper purpose. Accordingly, we cannot give deference to the trial court’s ruling on sanctions, as the court did not base its determination upon evidence taken at a hearing or matters of record which justify foregoing an evidentiary hearing. Delort, J. 

No. 2015 IL App (1st) 132832    In re Marriage of Lyman    Filed 2-03-15 (RJC)

This divorce case illustrates the difficulty a spouse has in extricating herself from a marital settlement agreement whose terms were, in retrospect, not as generous as she would have liked. Petitioner Deborah Lyman and respondent Robert Lyman entered into a marital settlement agreement (MSA), which was incorporated into a divorce judgment. Deborah filed post-judgment petitions claiming fraud and breach of the MSA pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). She argued that she was fraudulently induced to enter into the MSA because Robert informed her that his businesses were ceasing to operate and would lose their value. Robert moved to dismiss Deborah’s amended section 2-1401 petition pursuant to sections 2-619(a)(4) and (a)(9) of the Code (735 ILCS 5/2-619(a)(4), (a)(9) (West 2010)). Robert also moved for sanctions against Deborah under Illinois Supreme Court Rule 137 (Ill. S. Ct. R. 137 (eff. Feb. 1, 1994)). The trial court granted Robert’s motion to dismiss and motion for sanctions, from which Deborah appeals. For the following reasons, this matter with directions to the trial court to conduct a hearing to determine whether to award attorney fees to Robert under section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(a) (West 2010)).

2. Criminal Law/Stop & Frisk: Reversed: Here, the parties agree that the initial encounter was justified as community caretaking. Defendant does not appear to dispute that the encounter was initially reasonable: he was walking in the median of a busy highway on a hot evening, and it was reasonable for Lewis to inquire whether he had had car trouble and needed assistance. However, once he plausibly explained that he was walking to the nearby McDonald’s, did not appear to be in medical distress, and did not request assistance, he should have been free to go about his business. The officer was simply not authorized to prolong the encounter in order to frisk defendant for a possible weapon. Schostok, J. 

No. 2015 IL App (2d) 130528    People v Slaymaker    Filed 2-03-15 (RJC)

Following a bench trial, defendant, Anthony Slaymaker, was found guilty of resisting a peace officer (720 ILCS 5/31-1(a) (West 2010)). He appeals, contending that he could not be convicted of resisting, because the officer was not engaged in an authorized act at the time. Specifically, he argues that the officer was not authorized to pat him down for weapons in the course of a community-caretaking encounter. We agree and reverse.

3. Criminal Law/Batson/Sentencing: Affirmed in part & vacated in part: The trial court’s determination that the State did not commit a Batson violation was not clearly erroneous. The trial court’s comments reflected arguments actually made by the State.  The comments do not indicate that it was in any way advocating for the State. The trial court did not improperly admonished the defendant that, if he waived his right to counsel, he would not be able to have counsel reappointed in the middle of trial The trial court erred when it convicted and sentenced the defendant for 12 counts of first-degree murder. Because two individuals were murdered, the defendant can be convicted of only two murders. Because the counts of home invasion were all based on the defendant’s single entry into the Cardinos’ home, only one conviction of home invasion can stand. Schostok, J. 

No. 2015 IL App (2d) 120717    People v Jones    Filed 2-03-15 (RJC)

Following a jury trial, the defendant, Omarrian T. Jones, was convicted of 12 counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 2008)), attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), 4 counts of home invasion (720 ILCS 5/12-11(a)(1) (West 2008)), and residential burglary (720 ILCS 5/19-3 (West 2008)). He was sentenced to natural life imprisonment for the murder convictions, 30 years for the attempted murder conviction, 30 years for the home invasion convictions, and 15 years for the residential burglary conviction. On appeal, the defendant argues that: (1) the trial court erred in denying his request for a six-person jury; (2) he was deprived of a fair trial where the State’s reasons for peremptorily excluding an African-American potential juror were inadequate and pretextual; (3) the trial court violated his right to self-representation; and (4) under one-act, one-crime principles, this court should vacate all but two of his convictions of murder, all but one of his convictions of home invasion, and his conviction of residential burglary. We affirm in part and vacate in part.

2 Appellate Cases Posted 2-02-15  

1. DCFS/Admin. Hrngs./Special Care: Affirmed: Here, the testimony regarding all of these omissions in the ALJ's findings of fact is contained and preserved in the record and therefore was considered by the ALJ. Accordingly, the findings of fact were not against the manifest weight of the evidence merely because not every fact presented at the hearings was included. The ALJ's finding that Fatima's needs were being met through community-based services was not against the manifest weight of the evidence. All necessary factors were considered, thus  the decision to deny Fatima specialization was not clearly erroneous. Connors, J. 

No. 2015 IL App (1st) 133258    In re Fatima A.    Filed 2-02-15 (RJC)

The plaintiff, Cook County Public Guardian, appeals on behalf of the minor, Fatima A. (Fatima), from the circuit court’s order affirming a decision of defendant Erwin McEwen (Director)1, the Director of defendant Department of Children and Family Services (DCFS) upholding the denial of specialized foster care services for the minor. Plaintiff alleges that: (1) the final administrative decision was against the manifest weight of the evidence because the decision found that all of the minor’s needs were being met despite the fact that Fatima had severe eczema and had not yet seen a dermatologist; (2) the final administrative decision was legally erroneous where it concluded that the minor was not eligible for specialized care because her needs were being met; (3) the final administrative decision was clearly erroneous where it concluded that DCFS had met its burden of showing that the decision to deny specialized care was consistent with her well-being despite Fatima's severe medical and behavioral problems; and (4) the final administrative decision constituted a denial of due process and a violation of the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2012)), where it was arbitrary and capricious. For the following reasons, we affirm.

2. Criminal Law: Affirmed: The State presented a significant amount of testimony and physical evidence, while defendant presented nothing. Because defendant makes no argument under the second prong of the plain-error analysis, the defendant has not met his burden of proving plain error and judicial review of his claim concerning the video of his interrogation. The trial judge placed significant emphasis on the fact defendant was being convicted of his seventh and eight felonies and had been to prison three times. Based on "those factors alone," the judge explained defendant would not be receiving the minimum sentence. He went on to note the lack of mitigating factors and sentenced defendant to two concurrent 13-year terms in prison.  The trial judge was not exercising an unyielding personal policy or vendetta against defendants who have criminal histories and have served time in prison. Knecht, J. 

No. 2015 IL App (4th) 130222    People v. Scott    Filed 2-02-15 (RJC)

After a January 2013 trial, the jury found defendant, Gregory Scott, guilty on two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)). In March 2013, the trial court sentenced defendant to two concurrent 13-year terms in the Illinois Department of Corrections (DOC). Defendant appeals, asserting (1) he is entitled to a new trial because the jury heard improper, irrelevant, and unduly prejudicial evidence; or (2) his case should be remanded for resentencing because his sentence was based on improper sentencing factors. We affirm.

3 Appellate Cases Posted 1-30-15

1. Criminal Law/Search and Seizure/Dog sniff: Affirmed: The search warrant in this case was tainted by the illegal police conduct—the warrantless use of a drug-detection dog to sniff defendant's apartment's front door at 3:20 a.m. The State would have us overlook this taint if the search warrant contained probable cause without the tainted information. The trial court here found if paragraphs 9 and 10 (the paragraphs regarding the dog sniff) were excised from the affidavit for a search warrant, the remaining facts pleaded were insufficient to establish probable cause for the issuance of the search warrant. The warrantless use of a drug detection dog to sniff defendant's apartment door at 3:20 a.m. affected the judge's decision to issue the search warrant, and the evidence obtained pursuant to the search warrant is fruit of the poisonous tree and the exclusionary rule applies. Knecht, J. 

No. 2015 IL App (4th) 140006    People v. Burns     Filed 1-30-15 (RJC)

At approximately 3:20 a.m. on January 10, 2013, two police officers from the Urbana police department entered the locked apartment building in which defendant, Taron R. Burns, lives. The officers were interested in apartment No. 10, defendant's apartment. They did not have a search warrant and were accompanied by Hunter, a trained drug-detection dog. After sniffing the front door to apartment No. 10, Hunter alerted to the presence of narcotics. On the basis of this drug sniff, the police obtained a search warrant and searched defendant's apartment. In January 2013, the State charged defendant with unlawful possession with intent to deliver more than 500 grams but not more than 2,000 grams of cannabis (720 ILCS 550/5(e) (West 2012)). In April 2013, defendant filed a motion to suppress evidence discovered in the search. She argued the warrantless dog sniff of her apartment's front door violated the fourth amendment. In October 2013, the trial court agreed and granted defendant's motion to suppress.

2.  Criminal Law: Reversed and remanded: Trial court did not comply with Supreme Court Rule 402 during plea hearing when it failed to confirm details of plea agreement on the record before accepting plea and failed to detail requirements of the agreement, thus authorizing defendant to withdraw the plea.  In a petition for rehearing, defendant asks that we take judicial notice of the fact that he was only convicted of a charge under section 24-1.6(a)(1)/(3)(A) (720 ILCS 5/24-1.6(a)(1)/(3)(A) (West 2010)), the subsection at issue in Aguilar, and that the remaining counts were nol-prossed. Taking judicial notice of those facts, we find that the question of whether any of the nol-prossed counts can support the underlying conviction in this case is a question to be resolved in the trial court. McBride, J.  

No. 2015 IL App (4th) 131117    People v. Holloway - Modified upon denial of rehearing     Filed 1-30-15 (RJC)  
Defendant Rashiem Holloway pled guilty to one count of unlawful use of a weapon by a felon (UUWF) and received a sentence of seven years in the Illinois Department of Corrections. Defendant filed a motion to withdraw his guilty  plea, but the trial court denied his motion. Defendant appeals, arguing that: (1) his UUWF conviction should be reversed because the alleged predicate offense, aggravated unlawful use of a weapon, was found to be unconstitutional  and void ab initio by the Illinois Supreme Court in People v. Aguilar, 2013 IL 112116; (2) defendant was never fully informed of the terms of his negotiated plea agreement in open court in violation of Supreme Court Rule 402(b); (3) trial counsel's failure to amend the motion to withdraw the guilty plea when the report of proceedings showed a clear Rule 402(b) violation constituted noncompliance with Supreme Court Rule 604(d); and (4) defendant's fines and  fees should be reduced to reflect credit for the days he spent in presentence custody. Reversed and remanded.   

3. Personal Injury/Coice of Law/213(f)(3) disclosures: Affirmed: While we agree with the trial court that it would have been better for the parties to seek a resolution at an earlier point in the proceedings, we cannot find that the trial court abused its discretion in finding no waiver and considering the choice-of-law issue.  No prejudice by the trial court’s admission of the fact of their settlement with Lopez, and absent prejudice, there is no reversible error. In the case at bar, defendants’ disclosure stated that Fittanto would opine that Ruse’s truck hit the wall as a combined result of the impact and Ruse’s maneuvers, with a specific reference to “the forces sustained during this impact and rollover event.” Thus, the disclosure indicated that some analysis as to the forces in play had been conducted. Furthermore, the qualifications set forth in the disclosure make it clear that Fittanto’s experience was heavily technical and analytical, including “technical accident investigation and reconstruction” and “vehicle dynamics.” Accordingly, since plaintiffs have not shown how the disclosure of the calculations prejudiced them, the trial court did not abused its discretion in finding Fittanto’s opinions to be adequately disclosed. Gordon, J. 

No. 2015 IL App (1st) 133049    Kovera v. Envirite of Illinois, Inc.     Filed 1-30-15 (RJC)

On December 26, 2007, defendant Clifford Ruse was driving a tractor trailer (the truck) on an Indiana highway in his capacity as an employee of defendant Envirite of Illinois, Inc. (Envirite), when he was struck by a sport utility vehicle (SUV) that had lost control while driving over a patch of black ice. Ruse’s truck, in turn, swerved to the left and struck the highway’s median wall. The container the trailer had been carrying became detached from the trailer and struck the vehicle of plaintiff Daniel Kovera, causing injury. Plaintiffs filed suit against Ruse and Envirite, claiming that Ruse was negligent in operating the truck. After a jury trial, the jury rendered a verdict in favor of defendants. Plaintiffs appeal, and we affirm.

2 Appellate Cases Posted 1-29-15

1. Domestic Relations/Removal/Visitation: Reversed and remanded: There is concern that the trial court's rationale could support an almost total interdiction on the removal of seven-year-olds to any state except, perhaps, a state that borders Illinois. As to visitation, the question is not whether the amount of visitation would be the same before and after the move. Rather, the question is whether it would be possible to devise a visitation schedule that "preserve[s] and foster[s] the child's relationship with the [nonresidential] parent." To preserve and foster respondent's relationship with A.T., the trial court will have to modify the visitation schedule so as to make visitation less frequent but longer.  We see no disadvantage to a long visitation with him in the summer. "In all cases, removal will have some effect on visitation, but the real question is whether a schedule can be created that is both reasonable and realistic. It need not be perfect." Appleton, J. 

No. 2015 IL App (4th) 140773    In re: Marriage of Tedrick     Filed 1-29-15 (RJC)

Petitioner, Lindsay M. Tedrick, and respondent, Jonathan M. Tedrick, are divorced, and under the terms of the judgment of dissolution, they have joint custody of their seven-year-old child, A.T. A joint-parenting agreement, incorporated into the judgment of dissolution, designates petitioner as the residential parent. In June 2014, petitioner filed a petition to remove A.T. permanently to South Carolina, where petitioner has a new job: a job that appears to be more secure and more desirable than the precarious and punishing job she had in Illinois. In August 2014, the trial court held an evidentiary hearing on the petition for removal, after which the court denied the petition, finding that the proposed removal would not be in A.T.'s best interest. Because that finding is against the manifest weight of the evidence, we reverse the trial court's judgment, and we remand this case with directions to make a new visitation schedule.

2. Insurance/IL Ins. Guaranty Fund: Reversed and remanded: The issue of whether Chicago Insurance has a duty to defend is presented by way of an appeal from the circuit court's summary judgment ruling in favor of the Fund and denial of a summary judgment in favor of Chicago Insurance. Chicago Insurance's duty to defend depends on whether Dr. Hucker qualifies as an insured under the language of the policy at issue. Dr. Hucker is not expressly named as an insured under the language of the policy. The plain reading of section II.E. provides that it applies only to employees "other than a physician or surgeon." Section II.E. is inapplicable because Dr. Hucker is a physician.  Once it is determined that Dr. Hucker is not an insured, "there is no coverage, potential or otherwise," and Chicago Insurance has "no duty to defend." Finally, since Chicago Insurance had no duty to defend Dr. Hucker, the Fund's estoppel argument has no merit. Stewart, J. 

No. 2015 IL App (5th) 140033    Illinois Insurance Guaranty Fund v. Chicago Insurance Company     Filed 1-29-15 (RJC)

The plaintiff, Illinois Insurance Guaranty Fund (the Fund), filed a declaratory judgment action against the defendant, Chicago Insurance Company (Chicago Insurance), for the court to determine whether a "claims-made" insurance policy issued to Women's Care of Southern Illinois, P.C. (Women's Care), for claims made between July 1, 2001, through July 1, 2002, provided insurance coverage for a former employee of Women's Care, Dr. John Hucker. Chicago Insurance issued the policy. This insurance dispute stems from a separate lawsuit for medical malpractice filed against Women's Care and Dr. Hucker on January 22, 2002, during the effective date of coverage of the claims-made policy.

5 Appellate Cases Posted 1-28-15

1. Criminal Law: Affirmed: In sum, Johnson's contentions, either alone or in combination, fail to establish that counsel's performance fell below an objective standard of reasonableness and that the alleged deficient performance prejudiced the defense. Further, because we find no merit to any of  Johnson's claimed errors, no need to address his argument regarding the cumulative effect of those claimed errors. Mason, J.

No. 2015 IL App (1st) 123249    People v. Johnson     Filed 1-28-15 (RJC)

Defendant June Johnson appeals his convictions of one count of aggravated kidnapping and two counts of aggravated criminal sexual assault. On appeal, Johnson contends his aggravated kidnapping conviction should be reversed because his asportation of the victim was incidental to the criminal sexual assault and not an independent offense. Johnson similarly claims that his aggravated criminal sexual assault conviction should be reduced to criminal sexual assault because the aggravating factor of bodily harm was not proved beyond a reasonable doubt where the victim did not testify that she felt any physical pain from Johnson choking her and no evidence was presented that Johnson caused bruises on her arms. Johnson also claims the indictment charging him with the offense of aggravated criminal sexual assault contained a material variance because the bruises on the victim's arms were not included in the indictment as bodily harm, which precluded him from adequately preparing his defense. Finally, Johnson raises numerous trial errors that include: (1) prosecutorial misconduct during rebuttal closing argument where jurors were asked to place themselves in the victim's shoes; (2) erroneous trial court rulings relating to objections made during closing arguments; and (3) ineffective assistance of counsel. Affirmed.

2. LLC/Member Agreement/Appeals: Affirmed in part and reversed in part. App. Crt. has jurisdiction of this appeal, as the circuit court file stamp is evidence of the date the court received the notice of appeal for purposes of jurisdiction, and the file stamp indicates the notice of appeal was filed within 30 days of the final post-judgment order disposing of all post-judgment motions.  As to the merits of the LLC's appeal, the circuit court erred in determining that the plain language of the LLC members' subsequent agreement effected a change in Daniel's participating percentage in the LLC for only 2003 and 2004 and granting the estate judgment on count II of its complaint. The trial court's judgment was based solely on its interpretation of the contract. The terms are plain and unambiguous and the contract was not limited to only certain years. Instead, the January 14, 2004 effected a permanent change to the operating agreement. We reverse the judgment in favor of the estate on count II of its claim and the award of damages to the estate. But as to the LLC's counterclaim for damages from the estate, we hold that the LLC waived its argument and we affirm the entry of judgment against the LLC on both counts of its counterclaim.  Pucinski, J.

No. 2015 IL App (1st) 122607   Daniel v. Ripoli     Filed 1-28-15 (RJC)

This action was brought by the defendant limited liability company's (LLC) deceased member's estate to recover the amount of LLC distributions allegedly due to the decedent under the member's participating percentage in the LLC's operating agreement. Affirmed in part and reversed in part. Cause remanded.

3. Criminal Law/Post-Conviction Hearing Act: Reversed and remanded for resentencing.  In this case, defendant committed the crime in 2006 prior to the 2007 effective date of Public Act 95-688, and thus the amendment has no impact upon the outcome of this case, and Hauschild controls. The armed violence statute in effect at the time of defendant's indictment excluded ACSA, but did not exclude criminal sexual assault. The aggravating factor in criminal sexual assault was the possession of a firearm (720 ILCS 5/12-14(a)(8) (West 2006) (now 720 ILCS 5/11-1.30(a)(8) (West 2012))), which was identical to armed violence based on the commission of a criminal sexual assault. The sentence for ACSA with a firearm, 21 to 45 years (730 ILCS 5/5-8-1(a)(3) (West 2006) (now 730 ILCS 5/5-4.5-25 (West 2012)); 720 ILCS 5/12-14(d)(1) (West 2006) (now 720 ILCS 5/11-1.30(d)(1) (West 2012))), was disproportionate to the penalty for armed violence predicated on criminal sexual assault, 15 to 30 years (720 ILCS 5/33A-3(a) (West 2006)).  Hyman, J. 

No. 2015 IL App (1st) 123519    People v. Lampkins      Filed 1-28-15 (RJC)

Defendant Lathern Lampkins appeals from the judgment of the circuit court that summarily dismissed his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). We find that a portion of defendant's sentence is void, as asserted by defendant for the first time in a petition for rehearing, and remand for resentencing.

4. Criminal Law/Transcripts: Affirmed: Neither party has cited, and our research has not uncovered, any Illinois case addressing whether the general rules apply to a transcript that contains translations of foreign-language statements in a recording. While lower federal court decisions are not binding upon state courts, it is permissible to look to them as persuasive authority. Having looked to such decisions, we hold that it was proper for the trial court to rely on the translations in the transcript as substantive evidence. Where a recording contains statements in a foreign language, it would be impractical, or even impossible, to require the trier of fact to rely on the recording to the exclusion of an English-translation transcript. Where a recording contains statements in a foreign language, the trier of fact can consider those statements as evidence only if the statements have been translated into English. Therefore, the trial court did not err in relying on the transcript’s English-language translations as substantive evidence. Zenoff, J. 

No. 2015 IL App (2d) 130521    People v. Betance-Lopez     Filed 1-28-15 (RJC)

Following a bench trial, defendant, Ruben Betance-Lopez, was convicted of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2010)). On appeal, defendant challenges one of his convictions of predatory criminal sexual assault of a child, raising two contentions of error: (1) the trial court improperly relied on a transcript of an audiorecording as substantive evidence, and (2) the State failed to prove his guilt beyond a reasonable doubt. Because we conclude that the trial court properly relied on the transcript as substantive evidence and that the State proved defendant’s guilt beyond a reasonable doubt, we affirm.

5. Arbitration/Forum/FNC: Vacated and remanded: Respondent did not establish any compelling or countervailing reason for upsetting the parties’ choice of Illinois as their arbitration forum. The only factor that potentially weighs against the choice of Illinois as forum is that the Agreement was signed, and the contemplated services performed, in Arizona. Depreciating the weight of this factor, however, is the fact that the parties agreed to apply Illinois law to their dispute. The trial court committed prima facie reversible error in invalidating the forum-selection clause. Birkett, J. 

No. 2015 IL App (2d) 131190    GPS USA, Inc. v. Performance Powdercoating     Filed 1-28-15 (RJC)

Petitioner, GPC USA, Inc., appeals the vacatur of an arbitration award entered in its favor against respondent, Performance Powdercoating. The trial court erred by invalidating the forum-selection provision in the arbitration clause of the parties’ contract. Accordingly, we vacate the trial court’s judgment and remand for further proceedings.

3 Appellate Cases Posted 1-27-15

1. Trusts/BeneficiariesDNA testing: Affirmed in part and vacated in part; cause remanded: Rule 215 is constitutional under the fourth amendment to the United States Constitution as well as under the Illinois Constitution’s privacy clause. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.  Also, the requirements of Rule 215 apply to a request for DNA testing in a trust case to determine beneficiaries and that inherited characteristics are considered a “physical condition” under that rule. Further, the trial court did not abuse its discretion in ordering a DNA test in this case. The record demonstrates compliance with both Rules 201(k) and 215. Finally, based upon the trial court’s finding of “good faith,”  the contempt ruling is vacated . Accordingly, the trial court’s judgment is affirmed in part and vacated in part, and this cause is remanded for further proceedings consistent with this opinion.  Birkett, J.

No. 2015 IL App (2d) 130175  Kaull v. Kaull - Modified upon denial of rehearing     Filed 1-27-15 (RJC)
This action was brought by Mary K. Kaull (Mary), as the trustee of the Barbara B. Kaull Trust, to identify beneficiaries of the trust. Respondent Mark James Kaull (Mark James) was held in contempt of court for his refusal to submit a DNA sample, which the trial court ordered pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011) in order to determine whether respondent Ryan Donald Schrader (Ryan) and Mark James have the same biological father, Mark Kaull. On appeal, Mark James argues that he acted in good faith in refusing to submit a DNA sample on the grounds that: (1) Rule 215 is facially unconstitutional because it no longer requires a showing of “good cause”; (2) section 9(a) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/9(a) (West 2010)) applies to this case to the exclusion of Rule 215; (3) inherited characteristics are not “physical conditions” within the meaning of Rule 215; and (4) the motion and the trial court’s order for DNA testing did not comply with Rule 215. For the following reasons, we affirm.

2. Insurance/Interpleader/Survivor awards: In this case, the trial court found that the estates had failed to prove the conscious pain and suffering of the decedents prior to their deaths as necessary for the survival awards to be made. It would be inequitable, therefore, to hold Henry and Dragon Fly to that portion of the judgment when it was not proven at trial.  The survival awards must be vacated as to Henry and Dragon Fly, in addition to CHR. Since the survival awards have been vacated, the judgments owing to the estates have been satisfied in full, and the estates have no interest in the disputed funds. It was proper, therefore, for the trial court to grant plaintiffs' voluntary motion to dismiss the estates from the interpleader case as they no longer have an interest in the action.  Also, the trial court properly denied the estates’ motions for leave to file counterclaims in the instant interpleader case. Carter, J.

No. 2015 IL App (3d) 130294   Carolina Casualty Insurance Company v. The Estate of Sperl     Filed 1-27-15 (RJC)

Plaintiff, Carolina Casualty Insurance Company (CCIC), on behalf of all of the listed plaintiffs, filed an interpleader action against several defendants to resolve multiple potential claims that existed as to the proceeds of a CCIC insurance policy arising out of a multiplevehicle traffic accident. Prior to trial, CCIC moved to voluntarily dismiss (735 ILCS 5/2-1009(a) (West 2012)) defendants, the estates of Joseph Sperl and Thomas Sanders, from the action, alleging that the claims of the estates had been satisfied in full and that the estates no longer had an interest in the disputed funds. After written and oral arguments on the matter, the trial court granted CCIC's motion to dismiss the estates from the interpleader action and also denied motions that had been made by the estates for leave to file counterclaims for breach of settlement contract and garnishment. The estates appeal. We affirm the trial court's judgment.

3. Mechanic's Liens: Affirmed: In determining whether a mechanic's lien is valid, a court focuses on whether the work performed actually enhanced the value of land. The record in this case reveals no error in the circuit court's finding that the plaintiff failed to establish that its work improved the property at issue. Under the circumstances of this case, the services provided by the plaintiff for the Harkins defendants in fact did not constitute an improvement to the property under the Act.  Thus, the circuit court did not err when it granted summary judgment in favor of Heritage Bank. Carter, J. with Lytton, J. dissenting.

No. 2015 IL App (3d) 140064    Christopher B. Burke Engineering, LTD. v. Heritage Bank of Central Illinois     Filed 1-27-15 (RJC)

The plaintiff, Christopher B. Burke Engineering, Ltd., filed a civil complaint that sought to foreclose on a mechanic's lien against multiple defendants, including Heritage Bank of Central Illinois. After the circuit court invalidated the lien and granted summary judgment in favor of Heritage Bank, the plaintiff appealed. On appeal, the plaintiff argues that the circuit court erred when it granted summary judgment in favor of Heritage Bank in that the court improperly found that: (1) no contractual relationship existed between the original owner of the property and the prospective purchaser; and (2) the plaintiff's work did not constitute an improvement to the property. We affirm.


5 Appellate Cases Posted 1-26-15

1. Trusts: Reversed and remanded: In this case, the trial court erred in finding that the provision at issue in paragraph C was unambiguous. To the contrary, although the provision directed that the remainder of the estate was to be distributed to the settlor’s grandchildren, it also individually named his four grandchildren living at that time. Paragraph C of the trust is latently ambiguous, and we must resort to rules of construction to ascertain the settlor’s intent. The rules of construction appear to favor a class gift.  Tthere is an unresolved issue of fact concerning the settlor’s intent as to paragraph C of the Trust. Consequently, the trial court erred in granting the named grandchildren’s motion for summary judgment.  Delort, J. with Cunningham, J. dissenting in part and specially concurring in part, with opinion.

No. 2015 IL App (1st) 140532   Bank of America, N.A. v. Judevine    Filed 1-26-15 (RJC)

This case concerns whether $1.6 million remaining in an irrevocable trust should be divided among 4 grandchildren, or among 15. The trial court found that the Trust unambiguously provided only for the four then-living grandchildren (i.e., the named grandchildren) as remainder beneficiaries, and therefore the trial court granted the named grandchildren’s motion and denied the after-born grandchildren’s motion. The trial court also deferred ruling on the after-born grandchildren’s motion for partial summary judgment for attorney fees until Bank of America filed a brief addressing the petition. On appeal, the after-born grandchildren contend the trial court erred in finding that the Trust unambiguously excluded them as remainder beneficiaries and in deferring a decision with respect to their motion for attorney fees. Reversed and remanded.

2. JuvenileAppeals: Appeal dismissed: Minor respondent may not bring an appeal challenging the issue of proof beyond a reasonable doubt after an order of supervision has been entered in a delinquency proceeding. The appeal must be dismissed for lack of this court's jurisdiction. McBride, J.

No. 2015 IL App (1st) 142416    In re Henry B.    Filed 1-26-15 (RJC)

The State's petition for adjudication of wardship alleged that 12-year-old respondent, Henry B., committed an aggravated battery upon Nicholas B. on a public way in violation of section 12-3.05(c) of the Criminal Code of 2012 (Code) (720 ILCS 5/12-3.05(c) (West 2012)) and committed a battery causing bodily harm to Nicholas B. in violation of section of 12-3(a)(1) of the Code (720 ILCS 5/12-3(a)(1) (West 2012)). Following a bench trial, the juvenile court judge directed a finding on the aggravated battery, entered a finding of guilty on battery, and continued the case under an order of supervision for a period of six months.  On appeal, the minor seeks a reversal of the juvenile court's order of supervision arguing that the State failed to prove battery beyond a reasonable doubt. Respondent contends the victim suffered no physical pain or injury as a result of the minor's conduct.

3. Domestic Relations/Custody/Reconsideration: Affirmed: Here, the court acknowledged upon reconsideration that it originally misinterpreted section 610(b) of the Act to require proof that the change in circumstances had already adversely affected B.R.  The court applied the correct legal standard upon reconsideration. The court's finding that modification of custody was necessary to serve B.R.'s best interest was not against the manifest weight of the evidence. The court did not err by granting respondent's motion to reconsider and transferring custody of B.R. to respondent. Steigmann, J.

No. 2015 IL App (4th) 140765    In re Marriage of Rogers    Filed 1-26-15 (RJC)

In January 2009, petitioner, Lauren Rogers—now known as Lauren Beaudette—filed for dissolution of marriage from respondent, Terry Rogers. In March 2009, the trial court entered a judgment (1) dissolving the parties' marriage; (2) awarding petitioner custody of the parties' son, B.R. (born May 13, 2008); and (3) awarding respondent reasonable visitation. In February 2012, respondent filed a motion to modify custody pursuant to section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610(b) (West 2012)), alleging that (1) a change in circumstances occurred and (2) it was in B.R.'s best interest to be placed in respondent's custody. In March 2014, following a six-day bench trial, the court denied respond-ent's motion. In April 2014, respondent filed a motion to reconsider, arguing that the trial court applied an incorrect legal standard in denying his motion to modify custody. Specifically, respondent contended that the court improperly required him to prove that petitioner's acts and conduct harmed B.R.'s welfare. In July 2014, the court granted respondent's motion to reconsid-er, concluding that its original ruling erroneously "placed an additional burden on [respondent] to show that the welfare of the child was adversely affected or harmed by the acts and conduct of [petitioner] rather than considering the factors for the best interest of the child for modification." Thereafter, the court transferred custody of B.R. to respondent.

4. DUI/Motion to Suppress: Reversed: The officer's uncontroverted testimony establishes that he did not have any suspicion of criminal activity when he initially began following the defendant's vehicle. In fact, he testified that he was "looking for violations" and that the defendant's vehicle was the only one in the area. The officer also testified that he was not aware that the defendant had committed an infraction or violation of the law at the time he pulled his unmarked car behind the Pontiac; rather, he testified that he followed the Pontiac onto the private drive to see if anything "might happen." The evidence reveals that the officer could not articulate any facts to support a reasonable suspicion that the defendant had committed, or was about to commit, a crime that would justify the investigatory stop. Stewart, J. with Welch, J. dissenting. 

No. 2015 IL App (5th) 130147    People v. Bozarth    Filed 1-26-15 (RJC)

The defendant, Katelyn M. Bozarth, was charged with two counts of driving under the influence of alcohol. The defendant filed a motion to quash the arrest and suppress the evidence obtained against her, which the trial court denied after a hearing. At a bench trial, the defendant stipulated to the State's evidence, while maintaining her objection to the order denying her motion to quash and suppress evidence. The trial court found the defendant guilty on one count of driving under the influence of alcohol and ordered the defendant to one year of court supervision. The defendant filed a timely appeal. We reverse.