Illinois Supreme and Appellate Court Case Summaries

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

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2 Appellate Cases Posted 7-30-14

1. Criminal Law: Reversed and remanded: Defendant denied effective assistance of counsel where counsel introduced prior statement of witness into evidence and claimed that witness's testimony was part of a scheme recently invented to frame defendant, where counsel should have known that the prior statement tended to rebut that claim, and where counsel never sought to limit use of the statement only as impeachment rather than as substantive evidence. Mason, J. (Pucinski, J., sp. concurring).

No. 2014 IL App (1st) 111872  People v. Dupree  Filed 7-30-14 (TJJ)

Following a jury trial, defendant Lawrence Dupree was convicted of first degree murder and attempted first degree murder and sentenced to consecutive terms of 45 and 31 years in prison for a total of 76 years. On appeal, Dupree contends that he received ineffective assistance of counsel where his trial counsel (1) opened the door to an otherwise inadmissible prior consistent statement from a witness; (2) allowed the State to introduce the statement repeatedly and, without objection, argue it as substantive evidence; and (3) failed to request that a limiting instruction be given to the jury. Dupree further contends that his mandatory 76-year sentence is unconstitutional under the Supreme Court's holding in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), because he received a mandatory de facto life sentence for an offense allegedly committed when he was 17. We agree that the errors identified by Dupree require reversal and we remand for a new trial.

2. Criminal Law: Affirmed: Trial court properly denied defendant leave to file a successive post-conviction petition where affidavits of witnesses who had testified against defendant at trial did not constitute "newly discovered evidence" but only re-hashed previous claims by the those witnesses at trial, and additional supporting documentation in the form of newspaper articles regarding one officer's alleged history of abuse did neither constituted newly discovered evidence where those witnesses did not claim that officer physically abused them. Hyman, J. (Modified on denial of rehearing).

No. 2014 IL App (1st) 102732-B    People v. English  Filed 6-18-14 (TJJ)

On mandate from the supreme court following its opinion in People v. Edwards, 2012 IL 111711, the supreme court directed us to vacate our earlier judgment in People v. English, 2012 IL App (1st) 102732-U, and reconsider whether Anthony English should have been granted leave to file a successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). People v. English, No. 115421 (Ill. Mar. 27, 2013). English claims the trial court improperly denied him leave because he pled a colorable claim of actual innocence by alleging that the State's three inculpatory witnesses, all of whom recanted their trial testimony, were the victims of police coercion. We have considered the parties' supplemental briefs, and after reconsidering the matter in light of the supreme court's remand order, we hold the trial court did not err in denying English leave to file a successive petition. Although we agree that the trial court improperly considered the results of the evidentiary hearing in the postconviction proceeding on a separate murder conviction to deny English leave to file a successive petition in this case, a different result is not warranted based on that error. From review of the successive petition and the supporting documentation, as a matter of law, we must conclude that English could not set forth a colorable claim of actual innocence. The affidavits of the State's witnesses were not "newly discovered" evidence as required under the Act. The trial court properly denied English leave to file a successive petition.

1 Appellate Case Posted 7-29-14

1. Criminal Law: Affirmed in part, vacated in part, and remanded: Defendant's conviction for armed robbery and 21-year sentence affirmed, but "costs assessments tally sheet" vacated and matter remanded to trial court for trial judge to review any mandatory fines and recalculate all financial charges defendant must pay, and enter a written order clearly stating what defendant must pay according to statute. Wright, J. (Schmidt, J., dissenting).

No. 2014 IL App (3d) 121020  People v. Dillard  Filed 7-29-14 (TJJ)

After a stipulated bench trial, the trial court found defendant, Robert Dillard, guilty of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) and sentenced him to 21 years’ incarceration. The sentencing order mandated that “a judgment be entered against the defendant for costs.” On appeal, defendant challenges various fines and fees that were eventually tallied into the clerk’s costs sheet. We affirm the judgment, vacate all monetary assessments imposed by the circuit clerk, and remand with directions.

4 Appellate Cases Posted 7-28-14

1. Workers' Compensation: Circuit Court reversed, Commission decision reinstated: Commission's finding in favor of employee-claimant that employee was entitled to an award of temporary total disability benefits stemming from a workplace accident was not against the manifest weight of the evidence and should have been upheld by the trial court, despite the trial court's conclusions regarding the employee's credibility, as credibility is the responsibility of the Commission. Holdridge, J.

No. 2014 IL App (1st) 130410WC  Do Right In Landscaping v. Illinois Workers' Compensation Commission  Filed 7-28-14 (TJJ)

The claimant, Jose Nunez, filed an application for adjustment of claim under the Workers' Compensation Act, seeking benefits for right shoulder injuries which he allegedly sustained while working for Dig Right In Landscaping (employer). After a section 19(b) hearing, the arbitrator found that the claimant's current condition of ill-being of his right shoulder was not causally related to his employment. The arbitrator denied the claim for benefits. The claimant sought review before the Illinois Workers' Compensation Commission, which reversed the decision of the arbitrator and awarded the claimant temporary total disability (TTD) benefits, reasonable and necessary medical expenses, and  prospective medical care. The employer then sought judicial review of the Commission's decision in the circuit court of Cook County. The circuit court found that the Commission's decision was against the manifest weight of the evidence and reinstated the arbitrator's award. The claimant then filed a timely appeal with this court. On appeal, the claimant maintains that the Commission's finding that his current condition of ill-being was causally related to his employment was not against the manifest weight of the evidence. He asks this court to reverse the order of the circuit court and reinstate the Commission's decision. Circuit Court reversed, Commission decision reinstated.

2. Insurance Coverage: Affirmed: Evidence was sufficient to uphold trial court decision after trial that insurance syndicates were liable to cover losses to defendant stemming from governmental recall of drug manufactured by defendant, despite insurers' claim that defendant had fraudulently withheld information regarding the recalled drug, but trial court properly ruled that defendant not entitled to pre-judgment interest. Delort, J.

No. 2014 IL App (1st) 132020  Certain Underwriters at Lloyd's v. Abbott Laboratories  Filed 7-28-14 (TJJ)

This case involves who should bear the cost of the Italian government’s recall of a prescription drug: the insured or the insurer. The plaintiffs are various underwriters subscribing to certain insurance policies and certificates (the Underwriters). They sued Abbott Laboratories (Abbott) to rescind policies that they had issued to Abbott. Abbott counterclaimed, seeking (1) a declaratory judgment regarding coverage, (2) damages for an alleged breach of contract, and (3) damages for vexatious delay in paying on the policies. An array of professionals from all over the world testified at two extensive bench trials. At the first trial to determine liability, the trial court rejected the Underwriters’ rescission claim and Abbott’s vexatious delay claim. At the second bench trial as to damages, the trial court found in favor of Abbott on its breach of contract claim, entered judgment against the Underwriters, and awarded Abbott $84.5 million (the limits of the insurance policies at issue here) and certain recoverable costs. The trial court rejected Abbott’s request for prejudgment interest, but granted the request for postjudgment interest, awarding Abbott an additional $739,375. On appeal, the Underwriters contend that the trial court’s rejection of their rescission claim and its finding that the Underwriters ratified coverage and waived rescission were against the manifest weight of the evidence. The Underwriters raise an additional claim regarding the trial court’s denial of their motion to compel production of certain privileged documents prepared by a witness whom Abbott had withdrawn as an expert witness and presented only as a fact witness. On cross-appeal, Abbott contends that the trial court abused its discretion both in rejecting Abbott’s counterclaim for vexatious delay damages and Abbott’s request for prejudgment interest. We affirm.

3. Insurance Coverage: Affirmed: Trial court properly vacated default judgment against insured in insurer's declaratory judgment action seeking a declaration that it was not responsible to defend or indemnify personal injury action against insured, where insurer neglected to make the insurance company of the insured's co-defendant in the personal injury action a necessary party, and that insurance company was properly granted leave to intervene in the declaratory judgment action. Hoffman, J.

No. 2014 IL App (1st) 133947  Pekin Insurance Company v. Rada Development, LLC  Filed 7-28-14 (TJJ)

The plaintiff, Pekin Insurance Company (Pekin), filed a declaratory judgment (Pekin action) against the defendants, Rada Development, LLC, (Rada) and Barnabus R. Sutton (Sutton), seeking a judicial declaration that Rada was not an additional insured under the Pekin policy issued for Chicago Masonry Construction, Inc. (Chicago Masonry), a co-defendant with Rada in a personal injury action instituted by Sutton. The trial court found that Pekin had no duty to defend Rada in the Sutton lawsuit. Later, Certain Underwriters at Lloyd's, London, Subscribing to Certificate No. CRCC000537 (Lloyd's), filed a petition to vacate the trial court's judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)), arguing that the order was void because it was a necessary party to the Pekin action. The trial court granted Lloyd's petition and vacated the judgment, finding the judgment was void because Lloyd's was a necessary party to the Pekin action. The trial court further allowed Lloyd's leave to intervene in the Pekin action. Pekin now appeals, arguing that the trial court erred in granting Lloyd's section 2-1401 petition and allowing Lloyd's to intervene. For the reasons that follow, we affirm.

4. Negligence: Affirmed: In negligence action for personal injuries stemming from motor vehicle accident, where plaintiff did not seek judgment n.o.v. after adverse verdict, but only sought a new trial, trial court ruling denying such relief was not against the manifest weight of the evidence, and judgment in favor of the defendant affirmed. Pope, J.

No. 2014 IL App (4th) 131021  Hamilton v. Hastings  Filed 7-28-14 (TJJ)

In October 2011, plaintiff, Warren G. Hamilton, filed a complaint against defendant, Blake C. Hastings, alleging on January 10, 2010, defendant negligently lost control of his truck and struck plaintiff's vehicle, causing damage. After the jury found in favor of defendant, plaintiff filed a posttrial motion seeking a new trial. The trial court denied the motion, and plaintiff appeals. On appeal, plaintiff requests this court to enter a verdict in his favor as to defendant's liability and remand for further proceedings on damages only. We conclude plaintiff forfeited this issue because he did not request a judgment notwithstanding the verdict (judgment n.o.v.) in his posttrial motion. Defendant has briefed the issue of whether the trial court erred in denying plaintiff's motion for a new trial. Because plaintiff filed a notice of appeal from the denial of his motion for a new trial and defendant has briefed the issue, we will also address that issue.

5 Appellate Cases Posted 7-25-14

1.  Criminal Law: Affirmed: Notice under section 111-3(c) was required “only when the prior conviction that would enhance the sentence is not already an element of the offense.”  Gordon, J. 

2014 IL App (1st) 121792-B  People v. Pryor    Filed 7-25-14 (LJD)

Defendant Anthony Pryor was convicted of one count of unlawful use or possession of a weapon (UUW) by a felon and sentenced to five years in prison. On direct appeal, defendant raised claims that challenged only his sentence. Defendant claimed: (1) that his UUW conviction was improperly enhanced from a Class 3 to a Class 2 offense where the State's charging instrument failed to provide the notice required by the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)) when the State was seeking an enhanced classification of the offense; and (2) that defendant was subjected to an improper double jeopardy enhancement because the same prior felony conviction was used both to prove an element of the offense and to elevate the class of offense from a Class 3 to a Class 2 felony. Since we delivered our judgment, the supreme court ruled in Easley that notice of enhancement is not required when a prior conviction is already an element of the offense.  After deciding the Easley case, the supreme court issued a supervisory order directing us to vacate our judgment in Pryor, 2013 IL App (1st) 121792, and to reconsider our judgment in light of the supreme court’s decision in Easley. People v. Pryor, No. 117276 (Ill. Mar. 10, 2014). We now affirm defendant’s Class 2 conviction.

2.  Civil Practice/Severance of Third Party Complaint: Affirmed:Stay of a trial is an injunction and the Appellate Court has jurisdiction per Rule 307(a)(1).  A trial court's decision to issue or deny a stay will not be overturned on appeal unless the trial court abused its discretion in making the decision. A trial court does not act " 'outside its discretion' " by staying a proceeding in favor of another proceeding "that could dispose of significant issues."  A stay is generally considered "a sound exercise of discretion" if the other proceeding "has the potential of being completely dispositive."  Gordon, J

2014 IL App (1st) 132842  Cholipski v. Bovis Lend Lease, Inc  Filed 7-25-14 (LJD)

On this interlocutory appeal, defendants Bovis Lend Lease, Inc. (Bovis), Aldridge Electric, Inc. (Aldridge), and Vitatech Engineering, L.L.C. (Vitatech), argue that the trial court erred in staying their contribution claim against Dr. Kenneth Candido and his practice group.  On August 15, 2013, the trial court granted leave to defendants to file their contribution claim but stayed the claim pending the outcome of the trial on plaintiff's negligence claims, which was scheduled to begin on January 13, 2014. It is this stay that defendants now appeal, pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010).  For the following reasons, we affirm the trial court's stay order and vacate our order staying the negligence trial.

3.  Post Conviction PetitionL Affirmed: The scope of the [postconviction] proceeding is limited to constitutional matters that have not been, nor could have been, previously adjudicated.  Accordingly, issues that could have been raised on direct appeal, but were not, are considered forfeited and, therefore, barred from consideration in a postconviction proceeding. A postconviction claim that depends on matters outside the record, however, is not ordinarily forfeited because such matters may not be raised on direct appeal.  At the first stage of a postconviction proceeding, the trial court independently reviews the petition, taking the allegations as true, and determines if it is frivolous or patently without merit."The court is further foreclosed from engaging in any fact-finding or any review of matters beyond the allegations of the petition."  At this stage, a defendant "need only present a limited amount of detail in the petition" and the "threshold for survival" is "low."  A pro se defendant need only "allege enough facts to make out a claim that is arguably constitutional for purposes of invoking the Act." Reyes, J.

2014 IL App (1st) 122549  People v. Brown   Filed 7-25-14 (LJD)

Defendant, Jamille Brown, appeals from the order of the circuit court of Cook County summarily dismissing her pro se postconviction petition at the first stage of postconviction proceedings.1 Defendant was convicted by a jury of aggravated vehicular hijacking, armed robbery, and first-degree murder. The trial court sentenced defendant to a total of 43 years' imprisonment in the Illinois Department of Corrections. This court affirmed defendant's conviction and sentence on direct appeal. People v. Brown, 2011 IL App (1st) 093619-U. Thereafter, defendant filed a pro se petition for postconviction relief alleging, inter alia,  ineffective assistance of trial counsel. The trial court summarily dismissed the petition. Defendant appeals only from the dismissal of that portion of the petition alleging ineffective assistance of trial counsel for failing to (1) transmit the State's 20-year plea offer to her; and (2) present evidence at the motion to suppress hearing that her statement was a product of mental and physical coercion. We determine that the petition does not meet the pleading requirements of section 122-2 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2 (West 2012)) and, thus, we affirm.

4.  Traffic Court: Reversed: A stipulated bench trial allows the parties to proceed with the benefit and convenience of a guilty plea procedure, but avoids the waiver rule, so the stipulated bench trial allows the defendant to preserve the suppression issue.  In reviewing a trial court's ruling on a motion to suppress evidence, we apply a two-part standard wherein factual findings are reviewed for clear error and will be reversed only if they are against the manifest weight of the evidence, but the ultimate legal ruling is reviewed de novo.  It is well established that a vehicle stop at a highway checkpoint is a seizure within the meaning of the fourth amendment.  A police officer is entitled to briefly stop a person to investigate if, given the totality of the circumstances, the officer has specific, articulable facts, taken together with rational inferences from the facts, that warrant the intrusion.  The officer’s basis for the stop must be objectively reasonable, and not based on inarticulate or unsubstantiated suspicions that criminal activity is afoot.  The mere act of avoiding a roadblock is generally not sufficient to constitute reasonable suspicion by itself, and must be coupled with other articulable facts.  O'Brien, J., dissent by Schmidt, J.

2014 IL App (3rd) 120481  People v. Timmsen   Filed 7-25-14 (LJD)

The defendant, Jacob Timmsen, was convicted after a stipulated bench trial of driving while his license was suspended and sentenced to two years’ conditional discharge and 90 days in the county jail. The defendant appealed, arguing that the trial court erred in denying his motion to suppress evidence. We reverse.

5.  Criminal Law: Affirmed in part, Reversed in part and Remanded: Evidence of other crimes is admissible to show motive, intent, identity, lack of mistake and modus operandi. However, even if such evidence is offered for a permissible purpose, it "will not be admitted if its prejudicial impact substantially outweighs its probative value."  An abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court."  The circuit clerk does not have the power to impose fines. Fines imposed by the clerks of the circuit courts "flagrantly run contrary to the law, and we trust this unauthorized practice will end without the necessity of this court issuing rules to show cause."  Pope, J.

2014 IL App (4th) 121088  People v. Rogers Filed 7-25-14 (LJD)

Following a September 2012 jury trial, defendant, John W. Rogers, was found guilty of aggravated battery (720 ILCS 5/12-3.05(a)(1) (West Supp. 2011)) and not guilty of unlawful restraint (720 ILCS 5/10-3 (West 2012)). In November 2012, the trial court sentenced defendant to 5 years' imprisonment, with credit for 206 days served, but did not impose any fines as part of the sentence. The circuit clerk issued various assessments. Defendant appeals, arguing (1) the trial court abused its discretion by admitting evidence of uncharged crimes; and (2) the clerk of the circuit court improperly assessed fines against him. We affirm in part, vacate in part, and remand the cause with directions.

3 Appellate Cases Posted 7-24-14

1.  Medical Negligence: Affirmed: Pursuant to the Supreme Court Rule 213(f), a witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion rather than new reasons for it.  Rule 213 is intended to be a shield to prevent unfair surprise but not a sword to prevent the admission of relevant evidence on the basis of technicalities. The trial judge determines whether jurors have been influenced and prejudiced to such an extent that they would not, or could not be fair and impartial, and this determination will not be disturbed absent an abuse of discretion.  A juror may only be discharged upon a showing of good cause, and prejudice must be shown in order to warrant reversal. Sole proximate cause is a valid defense in a medical negligence lawsuit if there is evidence that tends to establish that the conduct of something or somebody other than the defendant was solely responsible for plaintiff's injuries.  Lavin, J.

2014 IL App (1st) 131124-U   Jones v. Beck   Filed 7-24-14 (LJD)

Plaintiffs Melvin Jones (Melvin) and Loleather Jones (Loleather) appeal from the entry of judgment on a jury verdict in favor of defendant Dr. Charles Beck, M.D. This action for medical malpractice stems from a colonic perforation which occurred postoperatively as a complication from spinal surgery. On appeal, plaintiffs assert that the trial court erred in: (1) allowing Beck and his defense expert to testify regarding the indication for and the efficacy of medical intervention with a nasogastric (NG) tube to alleviate plaintiff's colonic distention; (2) dismissing one of the jurors for her religious beliefs; and (3) instructing the jury on sole proximate cause, as contained in the long form of Illinois Pattern Jury Instructions, Civil No. 12.04 (2012) (hereinafter, IPI Civil (2012) No. 12.04), regarding sole proximate cause. For the following reasons, we affirm.

Custody &2.  Visitation: Reversed and Remanded:  ound public policy encourages the maintenance of the parent-child relationship, and only in extreme circumstances may courts deprive a parent of visitation.”  A parent is entitled to reasonable visitation rights unless the custodial parent proves, by a preponderance of the evidence, that without a restriction of visitation, the child’s physical, mental, moral[,] or emotional health will be seriously endangered. Visitation orders will not be disturbed on appeal absent an abuse of discretion.  A visitation restriction must meet the serious-endangerment standard, which is more onerous than the best-interests standard (which governs the modification of visitation.  [I]t is not the result—the actual change in visitation—that distinguishes a restriction from a modification; it is the purpose for the change.  The trial court abused its discretion in requiring that the parties agree to the time and place of visitation, and we reverse that portion of the court’s order.   Requiring the parties to agree to time and place effectively eliminated the provision of supervised visitation, by giving Thomas control of Christine’s access to the child. Jorgenson, J.

2014 IL App (2nd) 131332   In re Parentage of K.E.B.  Filed 7-24-14 (LJD)

Respondent, Christine C., challenges the trial court’s visitation order providing for supervised visitation between Christine and her son, K.E.B., only if she and petitioner, Thomas E.B., agreed on the time and place of the visitation. Christine argues that the court’s order effectively granted her no visitation. We reverse and remand.

3.  Church Law/Contract: Affirmed: The standard of review in a bench trial is whether the trial court's judgment is against the manifest weight of the evidence. "A reviewing court will not substitute its judgment for that of the trial court in a bench trial unless the judgment is against the manifest weight of the evidence."  The first amendment to the United States Constitution provides "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ***." U.S. Const., amend. I. That clause "severely circumscribes the role that civil courts may play in resolving church property disputes"  Illinois Constitution has a similiar provision.  United States Supreme Court held "whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them."A court applying the deference approach must defer to church hierarchy in the resolution of any ecclesiastical matter.  Illinois courts have generally refused to adjudicate cases requiring judicial interpretation of religious doctrine or church law where the governance structure is clearly hierarchical and the local group is clearly subordinate to the larger organization.   Where the question to be decided is not ecclesiastical, deference to religious authority is not required and the court may choose to employ another approach to resolve the dispute. Illinois courts have adopted the neutral-principles approach, whereby a court may objectively examine pertinent church characteristics, constitutions and bylaws, deeds, state statutes, and other evidence to resolve the matter as it would a secular dispute.  This approach may be applied in resolving property disputes, even within a hierarchical church organization, so long as the court need not decide a religious matter involving church doctrine, polity, or practice.  the deference approach is unavailable where the determination of a church's hierarchical structure is not easily discernible.   Pope, J.

2014 IL App (4th) 130901   The Diocese of Quincy v. The Episcopal Church  Filed 7-24-14 (LJD)

In November 2008, plaintiff, the Diocese of Quincy (Diocese), voted to end its association with defendant-counterplaintiff, the Episcopal Church (Church), due to certain theological disagreements. Thereafter, it realigned itself with another religious organization. Upon learning of the Diocese's decision to disassociate, the Church contacted National City Bank, n/k/a PNC Bank (National City), and informed it a disagreement had arisen over the ownership of funds (amounting to several million dollars) deposited with National City by the Diocese (testimony indicated as of December 31, 2012, National City was holding approximately $3,579,778 for the Diocese). According to the Church, it had an "enforceable interest" to ensure the funds were used for the mission of the Church and for counterplaintiff in intervention, the Diocese of Quincy of the Episcopal Church (Episcopal Diocese), which was created by the Church from the remaining loyal Episcopalians. In response, National City froze the funds pending the resolution of this matter. After an exhaustive bench trial, the trial court, applying neutral principles of law, found in favor of the Diocese and against the Church.    The Church appeals, arguing the trial court erred (1) in failing to defer to the Church's determination the Diocese had no power to withdraw from the Church, (2) in concluding it had no authority to enforce the Church's determination as to the identity of the true diocesan leaders, and (3) by failing to enforce commitments between the Church and the Diocese regarding diocesan property. We affirm.

7 Appellate Cases Posted 7-23-14

1. Criminal Law: Affirmed: Evidence sufficient to prove beyond a reasonable doubt that defendant was in "actual physical control" of a vehicle while under the influence where car was "poorly parked" with door open and defendant asleep at the wheel; statute prohibiting being under the influence of alcohol while in "actual physical control" of the vehicle not unconstitutionally vague; and trial counsel not ineffective. Hyman, J.

No. 2014 IL App (1st) 130152  People v. Morris  Filed 7-23-14 (TJJ)

At around two o’clock in the morning, a Chicago police officer found defendant James Morris passed out in the front seat of a parked car, the ignition off, the driver’s side door open, and keys in his right hand. Morris was charged with multiple counts of  "actual physical control" of the car while under the influence of alcohol and felony driving with a suspended or revoked driver's license.  Convicted after a bench trial, Morris received eight years in prison. Morris  raises three grounds for reversing his convictions: (1) the State failed to prove beyond a reasonable doubt that he was in actual physical control of the vehicle or under the influence of alcohol; (2) the phrase "actual physical control" in sections 11-501(a)(2)  and 5/6- 303(a) of the Illinois Vehicle Code is unconstitutionally vague and ambiguous as applied to him; and (3) his counsel's performance denied him his constitutional right to effective counsel.  Morris also asserts his status as a Class X felon was improper, and asks for resentencing. We affirm Morris's conviction and sentence.

2. Landlord/Tenant Law: Affirmed: Trial court properly dismissed counts in plaintiff tenant's suit alleging that so-called "move-in" fee was either pre-paid rent or a security deposit and thus violated the City of Chicago's Residential Landlord Tenant Ordinance and the State Consumer Fraud and Deceptive Practices Act, as the move-in fee was not a security deposit or pre-paid rent under the parties' agreement. Pucinski, J.

No. 2014 IL App (1st) 120719  Steenes v. Mac Property Management, LLC  Filed 7-23-14 (TJJ)

Plaintiff, Althera Steenes, a former tenant of a building managed by defendant, MAC Property Management, LLC , and owned by defendant, 5405-5407 S. Woodlawn Ave., LLC, filed this action seeking redress for defendants' alleged  violations of the City of Chicago Residential Landlord and Tenant Ordinance. The dispute relates to defendants' collection and treatment of a nonrefundable "move in" fee  which, plaintiff contends, must be considered a security deposit or prepaid rent under the RLTO. Plaintiff appeals from an order granting defendants' motion to dismiss, with prejudice, under section 2-615 of the Code of Civil Procedure as to certain counts of her amended complaint. We affirm.

3. Mortgage Foreclosure/Forcible Entry and Detainer: Affirmed: Fact that condominium association had secured forcible entry and detainer order against condominium owners for failure to pay assessments did not give association a position superior to mortgagee seeking to foreclose mortgage, so trial court properly granted mortgagee's motion for appointment of receiver and properly ordered rent receipts from unit turned over to mortgagee. Mason, J.

No. 2014 IL App (1st) 133556  Urban Partnership Bank v. Winchester-Wolcott, LLC  Filed 7-23-14 (TJJ)

Lakefront Place Condominium Association appeals from an order of the circuit court of Cook County appointing a receiver for condominium unit No. 903 at 6730 South Shore Drive in Chicago, Illinois, and directing that all rents collected from the tenants  of the unit be remitted to the receiver. Lakefront contends that because it had obtained an order of possession in a forcible entry and detainer action and, therefore, the mortgagor was not in possession of the premises at the time the receiver was appointed,  Urban Partnership Bank, the mortgagee, was not entitled to be placed in possession through its receiver. We disagree and affirm.

4. Criminal Law: Affirmed: In murder case where defendant's own expert witness concluded that defendant was not insane, and where defendant told lawyer that he would not cooperate with any additional expert witness, and where defendant took stand over defense counsel's advice to testify as to circumstances whereby his actions led to defendant's mother's death, trial counsel was not ineffective for failing to raise an insanity defense, or in arguing for a finding of guilty but mentally ill despite the decision not to raise an insanity defense which, by statute, presently precludes a finding of guilty but mentally ill. Mason, J.

No. 2014 IL App (1st) 121408  People v. Wood  Filed 7-23-14 (TJJ)

Following a bench trial, defendant Jonathan Wood was convicted of first degree murder, concealment of a homicidal death, aggravated unlawful restraint, violating an order of protection, and aggravated fleeing or eluding a police officer. He was sentenced  to consecutive prison terms of 61 years for first degree murder and 3 years for concealment of a homicidal death, for a total of 64 years. He received concurrent sentences of two years on each of the remaining counts. On appeal, Wood contends that he  received ineffective assistance of counsel where his trial counsel (1) requested a finding of guilty but mentally ill without presenting the statutorily required defense of insanity; and (2) failed to call his expert at trial to testify that Wood suffered from paranoid schizophrenia at the time the offense was committed. Finding no merit to Wood's argument, we affirm the judgment of the circuit court of Cook County.

5. Public Pension/Disabilities: Affirmed: Trial court properly determined that pension board's decision that police officer had suffered "a catastrophic injury" authorizing a "line of duty" disability pension was sufficient under the Public Safety Employee Benefits Act to require the Village to pay health insurance benefits for the officer, his wife, and qualifying children; and trial court order denying sanctions against Village under Supreme Court Rule 137 affirmed, as there was no evidence that Village brought declaratory judgment action in bad faith. Zenoff, J. (McLaren, J., dissenting).

No. 2014 IL App (2d) 130823  The Village of Vernon Hills v. Heelan  Filed 7-23-14 (TJJ)

The Board of Trustees of the Vernon Hills Police Pension Fund awarded a line of- duty disability pension to defendant, police officer William J. Heelan. Thereafter, plaintiff, the Village of Vernon Hills, filed a complaint in the trial court seeking a  declaratory judgment that it was not obligated under section 10 of the Public Safety Employee Benefits Act  to pay the health insurance premiums for Heelan, his wife, and his two children. Heelan filed a counterclaim seeking a declaratory judgment that the Village was obligated under the Act. The Village appeals from the trial court’s declaratory judgment in Heelan’s favor; Heelan cross-appeals from the trial court’s denial of his motion for sanctions under Illinois Supreme Court Rule 137. For the  following reasons, we affirm.

6. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition alleging ineffective assistance of counsel for failure to call an alibi witness known to trial counsel before trial where the witness's "affidavit" was not notarized in any manner, and claim that appellate counsel was ineffective for failing to raise issue of excessive sentence not properly raised by defendant in post-conviction petition. (N.B. case distinguishes between "verifying" affidavit discussed in People v. Hommerson, 2014 IL 115638, and "supporting" affidavit). Appleton, J.

No. 2014 IL App (4th) 121039  People v. Hemingway  Filed 7-23-14 (TJJ)

Defendant, Kevin E. Hemingway, who is serving a 35-year prison term for armed robbery, appeals from the summary dismissal of his petition for postconviction relief. He contends that, in his pro se petition, he made  two claims having an arguable basis in law and fact: (1) his trial counsel rendered ineffective assistance in the jury trial by failing to call an alibi witness, Tiffany Steele, and (2) his appellate counsel rendered ineffective assistance on direct appeal by failing  to argue that the sentence was excessive. In our de novo review (People v. Tate, 2012 IL 112214, ¶ 10), we find the first claim to be unsupported by affidavit and unaccompanied by any explanation for the lack of an affidavit. The second claim actually is not in the petition, and hence it is forfeited. For those reasons, we affirm the trial court's judgment.

7. Personal Injury/Health Care Liens: Affirmed: Doctor who provided health care services to two persons injured in accidents who thereafter resolved personal injury claims, was not required to be served formally so as to be subject to personal jurisdiction in cases where doctor was properly notified pursuant to the Health Care Services Lien Act. Welch, J.

No. 2014 IL App (5th) 130227  Smith v. Hammel  Filed 7-23-14 (TJJ)

In summary, we hold that for purposes of adjudicating Smith's lien, the circuit court did not need personal jurisdiction over Smith, nor was Smith required to be personally served with summons of process. The court had in rem jurisdiction over the settlement proceeds against which the lien had been asserted and could therefore adjudicate Smith's rights with respect to that res. Smith having received proper notice by mail of the proceeding to adjudicate the lien, and having failed to appear thereon, the circuit court did not err in finding Smith to be in default and in adjudicating his lien to $0. Accordingly, we affirm the court's order.

1 Appellate Case Posted 7-22-14

1. Public Utilities Regulation: Affirmed: Illinois Commerce Commission properly adopted plan to require Commonwealth Edison to enter into "sourcing agreements" to procure electricity from alternate electric suppliers. Harris, J. (Pucinski, J., dissenting).

No. 2014 IL App (1st) 130544  Commonwealth Edison Company v. Illinois Commerce Commission  Filed 7-22-14 (TJJ)

Petitioner Commonwealth Edison Company (ComEd), Illinois Competitive Energy Association (ICEA), and Illinois Industrial Energy Consumers (IIEC) appeal the order of the Illinois Commerce Commission (Commission) that requires ComEd to enter into a sourcing agreement to procure electricity for the retail customers of alternative retail electric suppliers (ARES) and recoup the costs through a "competitively neutral" charge. On appeal, appellants contend that the Commission violated section 16-111.5 of the Public Utilities Act (220 ILCS 5/16-111.5 (West 2012)) when it ordered ComEd to enter into a sourcing agreement to procure electricity for customers other than its own "eligible retail customers" and rendered its decision without substantial support from the record.

3 Appellate Cases Posted 7-18-14

1.  Condominiums/Contracts/SOL: Reversed and remanded: The construction-based statute of limitation and repose apply to plaintiffs' claims. The fraud exception applies.  In the case at bar, the causes of action arise from activities enumerated in section 13-214. The material misrepresentations concerned the construction of the project, and the fiduciary duty at issue is based on defendants' failure to budget for necessary repairs when they knew that repairs would be needed as a result of inadequate construction methods and materials. Therefore, we find that section 13-214 provides the appropriate limitations period. The dismissal of this case was improper.  Plaintiffs have raised a question of fact: did defendants' concealment of the insulation lead to their failure to reasonably fund the reserves? Therefore, we find that these issues of material fact should have precluded dismissal under section 2-619.  Plaintiffs have adequately pled causes of action, and questions of fact remain. Gordon, J. with Palmer, J. specially concurring.

2014 IL App (5th) 130764    The Henderson Square Condominium Association v. Lab Townhouses - Modified   Filed 7-18-14 (RJC)

Plaintiffs Henderson Square Condominium Association (Henderson) and Henderson's board of managers (the Board) filed a five-count complaint, arising from the sale of condominium units to plaintiffs by defendant developers. Plaintiffs allege the following causes of action: (1) breach of the implied warranty of habitability; (2) fraud; (3) negligence; (4) breach of the Chicago Municipal Code's prohibition against misrepresenting material facts in the course of marketing and selling real estate (Chicago Municipal Code § 13-72-030) and (5) breach of a fiduciary duty. Defendant's filed motions to dismiss.  The trial court granted defendants' second motion to dismiss with prejudice, finding that plaintiffs failed to plead counts IV and V adequately and that these counts were time-barred. Although defendants moved to dismiss only count IV as failing to allege a cause of action, the trial court also found that count V failed to allege a cause of action. In their amended notice of appeal, plaintiffs appeal both the trial court's order on May 10, 2012, dismissing counts I, II, and III, and its order of February 8, 2012, dismissing counts IV and V. However, in its brief before this court, plaintiff is only appealing the dismissal of counts IV and V. For the following reasons, we reverse.

2.  Mental Health/Invol. Medication: Reversed: Torry’s testimony that he was willing to take certain medications and that he “knows enough that he’s got to get on some drug regimen.” In light of these findings, involuntary medication would only be permissible under section 2-107.1 if the State showed that all of the medications which Torry was willing to take would be “inappropriate” (405 ILCS 5/2-107.1(a-5)(4)(F) (West 2012)) to treat his condition. The State failed to make any such showing.  The State failed to prove by clear and convincing evidence that less restrictive services had been explored and found inappropriate, and, therefore, the trial court erred in granting the petition to involuntarily administer psychotropic medication to Torry. Taylor, J. 

2014 IL App (5th) 130709    In re Torry G.   Filed 7-18-14 (RJC)

Respondent Torry G. appeals the trial court’s order that he be administered involuntary psychotropic medication.  Torry was hospitalized in January 2013 and diagnosed with bipolar disorder and psychosis. On March 7, 2013, the trial court entered an order authorizing the involuntary administration of psychotropic medication to Torry for a period of 90 days. Torry now appeals that order. For the reasons that follow, we reverse.

3.  Administrative Review Law/due process: Reversed: In the case at bar, a tenured teacher is being terminated from her employment of over 20 years based almost entirely on the hearsay statements of one student, who was not present at the hearing. There were no eyewitnesses to the alleged incidents, and the only other evidence of the incidents considered by the Board was two witnesses who observed the student entering a room quickly and wearing a wrinkled shirt, respectively; the teacher denies the conduct and testified to only taking the student’s hand to remove him from the class line. While we have no way of knowing what actually occurred on October 28 and 30, 2008, it is simply unjust to terminate a tenured teacher’s employment without giving her the opportunity to cross-examine her accuser, and we cannot find that such a procedure comports with due process.  Plaintiff was not afforded due process during her termination hearing.  Plaintiff’s dismissal hearing violated her due process right to cross-examine adverse witnesses. Gordon, J. 

2014 IL App (5th) 123436    Kimble v. The Illinois State Board of Education   Filed 7-18-14 (RJC)

Plaintiff Sharon Kimble, a tenured teacher assigned to teach at Parkside Academy (Parkside), was dismissed from her employment by the defendant board of education of the City of Chicago1 (the Board) after over 20 years of service based on allegations that she pushed and choked a 10-year-old student. At the time of its alleged occurrence, the incident was reported to the Department of Children and Family Services (DCFS), which determined that the allegations of abuse were unfounded. However, the Board approved dismissal charges against plaintiff based on alleged violations of the Chicago Public Schools’ employee discipline and due process policy, which prohibited the use of corporal punishment. On administrative review before the trial court, the trial court reversed in part and remanded for further findings of fact, explaining that the record contained inadmissible hearsay and prior incidents evidence, and the factual basis of the hearing officer’s recommendation was not apparent from the record. On remand, the hearing officer issued a clarification, and the Board issued a supplemental order on remand, affirming plaintiff’s employment termination. On further administrative review, the trial court affirmed. Reversed.

2 Appellate Cases Posted 7-17-14

1.  Criminal Law: Affirmed in part and vacated in part; cause remanded:  The State laid an adequate foundation for the admission of the firearms evidence and defendant's trial counsel was not ineffective for failing to object to that testimony.  The prosecutor's remark did not prejudice defendant and the trial court did not abuse its discretion in denying defendant's request for an involuntary manslaughter instruction.  In this case, defendant's armed robbery conviction arose from conduct committed on November 7, 2006, before the effective date of Public Act 95-688. At the time of the offense, therefore, Public Act 95-688 had not yet cured the proportionate penalties violation that rendered the 15-year sentence enhancement void. While People v. Blair, 2013 IL 114122,  held that Public Act 95-688 revived the sentence enhancement previously invalidated by Hauschild, it did not address the question presented in this case: whether the revived enhancement applies retroactively to offenses committed before October 23, 2007.  The revived 15-year enhancement does not apply retroactively to defendant's sentence. We agree with defendant that he should be resentenced for his armed robbery conviction. Epstein, J.

2014 IL App (5th) 103436    People v. Smith   Filed 7-17-14 (RJC)

A jury convicted defendant Salletheo Smith of first-degree murder, attempted first-degree murder, and armed robbery. The trial court sentenced defendant to consecutive terms of 45 years, 30 years, and 21 years in prison. Smith appeals his conviction and sentence, raising five issues: (1) he was denied a fair trial where the trial court allowed the State to introduce firearms evidence without laying a proper foundation; (2) his attorney was ineffective for failing to object to the inadmissible firearms evidence; (3) the State deprived him of a fair trial by remarking in closing argument that he "had four years to think about the story" he told the jury; (4) the trial court erred in denying his request for a jury instruction on the lesser offense of involuntary manslaughter; and (5) he should be resentenced on the armed robbery count because the trial court imposed an unconstitutional 15-year firearm enhancement.

2.  Criminal Law/Sentencing: Affirmed:  Defendant's federal conviction was equivalent to a Class X felony in Illinois. Defendant forfeited his challenge to his mandatory life without parole sentence under the Act. Even if defendant had not forfeited his claim, the plain language of the Act shows that the legislature intended to include serious federal drug offenses like defendant's as predicate offenses. Defendant's federal drug case, had it been tried under Illinois law, would have been a Class X felony. In this case, the court was precluded from sentencing defendant to anything other than the most severe penalty in Illinois, even though the trial court's comments indicate that it believed that a lesser sentence was appropriate. While we recognize the harshness of that outcome, we are compelled to uphold defendant's sentence. Within constitutional bounds, the legislature has broad discretion to fashion the penalties for the criminal offenses it defines. The facts of this case do not indicate that, in imposing a mandatory natural life without parole sentence on defendant, the Act exceeds those bounds. We therefore are compelled to affirm defendant's sentence.Epstein, J.

2014 IL App (5th) 120508    People v. Fernandez   Filed 7-17-14 (RJC)

Defendant Luis Fernandez sold 1,008.5 grams—approximately two pounds—of cocaine to an undercover police officer in 2010. For that amount of cocaine, defendant would have ordinarily faced a sentence of between 15 and 60 years' incarceration. 720 ILCS 570/401(a)(2)(D) (West 2010). In this case, because defendant had pled guilty to drug offenses in 1992 and 1999, the Habitual Criminal Act (Act) required the trial court to sentence defendant to spend the rest of his life in prison. 730 ILCS 5/5-4.5-95(a) (West 2010). The trial court noted, "It gives me no pleasure to do this," in sentencing defendant to the harshest penalty under Illinois law.  Defendant raises three issues on appeal: (1) his 1999 federal conviction cannot serve as a qualifying offense under the Act, because it did not have the same elements as a Class X offense; (2) the Act violates the eighth amendment to the United States Constitution; and (3) the Act, as applied, violates the proportionate penalties clause of the Illinois Constitution. Although defendant's natural life sentence is harsh, we are compelled to affirm it.

4 Appellate Cases Posted 7-16-14

1.  Criminal Law: Affirmed: The credibility of the witnesses was a matter for the jury to decide and the evidence supported Rouse's conviction for first degree murder where eyewitness testimony, as well as his own admissions, linked him to the shooting. As to the special finding, Rouse forfeited this challenge, having failed to object at trial or include the claimed error in a posttrial motion, and we decline his invitation to review the error under the plain error doctrine, finding his argument has not met either prong of the doctrine. Regarding the jury's review of the recording in the presence of both parties and the court during jury deliberations, the trial court exercised proper discretion due to technical difficulties preventing the recording from being viewed in the jury room. Hyman, J.

2014 IL App (5th) 121462    People v. Rouse   Filed 7-16-14 (RJC)

Defendant Justin Rouse, convicted of first degree murder before a jury, raises three issues on appeal. First, he contends reasonable doubt can be shown through the State's witnesses who, in implicating him, had a motive to lie and, hence, should not have been believed. Next, Rouse argues that the jury's special finding—that Rouse did not personally discharge the firearm that caused the victim's death—contradicts the verdict. Finally, Rouse maintains he was denied due process where, over defense counsel's objection, the trial court granted the jury's request to watch the surveillance footage. We affirm.

2.  Mortgage/Notes/Summary Judgment: Affirmed: Nothing in the record before the trial court called into question the fact that CitiMortgage was the actual holder of the note. Thus, this case is not governed by the rule that "[w]here an alteration in a deed is *** established by inspection, the burden of proof shifts to the person claiming the benefit of the instrument, as altered, to show the alteration was made under circumstances rendering it lawful." Given this conclusion, once CitiMortgage established that it was the holder of the note, it was incumbent upon defendants to present evidence to support their defense that the endorsement of the note was altered and that some person or entity other than CitiMortgage had the right to enforce it. Because the record lacks such evidence, the trial court properly granted summary judgment in favor of CitiMortgage. Mason, J. with dissent by Neville, J.

2014 IL App (5th) 130023   CitiMortgage, Inc. v. Sconyers   Filed 7-16-14 (RJC)

CitiMortgage, Inc., filed a complaint against Rona Sconyers and Marcus Wells, seeking to foreclose a mortgage after they failed to make payments due on a note given in exchange for a loan from Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Security National Mortgage Company. Defendants argued that CitiMortgage did not produce a "valid" assignment of the note. The trial court granted summary judgment in favor of CitiMortgage. We find that CitiMortgage sustained its burden to show that it was the holder of the original note and mortgage and that defendants failed to adduce any competent evidence that the endorsement on the note had been altered. We affirm.

3.  Gov't. Tort Immunity: Affirmed: The issue presented for review is whether the trial court erred when it granted summary judgment for the defendant based on its immunity under section 4-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act for providing police protection or service (745 ILCS 10/4-102 (West 2004)), which provides blanket immunity, or whether the court should have held that section 2-202 of the Act (745 ILCS 10/2-202 (West 2004)) for execution or enforcement of the law applied instead, which contains an exception for willful and wanton conduct. The court correctly determined that section 4-102 applies to the facts of this case, as the police were providing a service and were not engaged in the execution or enforcement of any law at the time of the incident. Pucinski, J.

2014 IL App (5th) 123101    Payne v. City of Chicago   Filed 7-16-14 (RJC)

Summary judgment was granted in favor of defendant City of Chicago (the City) on plaintiff's complaint, which brought a claim for common-law battery and also alleged "willful and wanton conduct." The police responded to a call for assistance by plaintiff's relatives because plaintiff was high on crack cocaine, suffering hallucinations, physically swinging around him, had broken furniture and a window, and was injured and bleeding. When the police arrived a responding sergeant used a TASER7 (TASER) to subdue him. Plaintiff then either fell or jumped out of the second-floor window and became a high-level paraplegic as result of the fall. The issue presented for review is whether the trial court erred when it granted summary judgment for the defendant based on its immunity under section 4-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act for providing police protection or service (745 ILCS 10/4-102 (West 2004)), which provides blanket immunity, or whether the court should have held that section 2-202 of the Act (745 ILCS 10/2-202 (West 2004)) for execution or enforcement of the law applied instead, which contains an exception for willful and wanton conduct.

4.  Premises Liability/Contracts/MSJ: Affirmed: Century 21 did not have a contractual obligation to inspect the owner’s property, subject to the “Master Listing Agreement,” for structural defects in order to protect prospective buyers, such as plaintiff. Further, after carefully reviewing the record, there is no evidence establishing Century 21 had actual knowledge the staircase was unstable. Therefore, summary judgment in favor of Century 21 was proper as a matter of law. Wright, J.

2014 IL App (3d) 130667    Hart v. Century 21 Windsor Realty    Filed 7-16-14 (RJC)

On July 5, 2011, Century 21’s real estate agent was showing plaintiff a property, subject to a listing agreement between Century 21 and the owner. During the showing, plaintiff was injured while walking down a basement staircase that collapsed. Plaintiff filed a complaint alleging negligence against multiple defendants, including Century 21, the owner’s real estate agent. The trial court granted summary judgment in favor of Century 21 after finding the listing agreement between the property owner and Century 21 did not create a contractual duty for Century 21 to inspect the premises for safety hazards to protect potential buyers. On appeal, plaintiff contends summary judgment was not proper because genuine issues of material fact related to Century 21’s duty to inspect the property for safety hazards. We affirm.

1 Appellate Case Posted 7-15-14

1.  Criminal Law: Affirmed in part and  Vacated in part: Under the one-act one-crime rule, multiple convictions arising out of a single physical act are prohibited. Sincethe state did not differentiate between shots, the rule applies.  The standard of review on a challenge to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The trier of fact is not required to disregard inferences that flow from the  evidence or search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.  A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. There is no difference between the mental states required to prove attempted first degree murder and second degree murder. First degree murder and second degree murder share the same elements, including the same mental states, but second degree murder requires the presence of a mitigating circumstance.  Pierce, J.

2014 IL App (5th) 110450 People v. Guyton  Filed 7-15-14 (LJD)

Following a jury trial, defendant Kasey Guyton was convicted of second degree murder, attempted first degree murder, and aggravated discharge of a firearm. In a simultaneous bench trial, defendant was convicted of unlawful use of a weapon by a felon. Defendant was subsequently sentenced to 18 years' imprisonment for second degree murder and 16 years' imprisonment for attempted first degree murder with a 20-year mandatory add-on for the personal discharge of a weapon, and 6-year concurrent terms for aggravated discharge of a firearm and unlawful use of a weapon by a  elon.  For the following reasons, we affirm the judgment of the trial court but vacate defendant’s conviction for aggravated discharge of a firearm.

1 Appellate Case Posted 7-10-14

1.  Rule 137: Reversed and Remanded:  When a trial judge rules on a motion for sanctions pursuant to Rule 137, that judge must provide specific reasons for his or her ruling, regardless of whether sanctions are granted or denied. The decision rendered–either orally or in writing–with regard to sanctions "needs to clearly set forth the factual basis for the result reached." Id. That is because upon review it is the function of this court to determine "whether (1) the circuit court's decision was an informed one, (2) the decision was based on valid reasons that fit the case, and (3) the decision followed logically from the application of the reasons stated to the particular circumstances of the case." Spomer, J.

2014 IL App (5th) 130109 Lake Environmental, Inc. v. Arnold  Filed 7-10-14 (LJD)

Following protracted litigation at the administrative and circuit court levels, on July 3, 2012, the plaintiff, Lake Environmental, Inc., filed a motion, pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994), for sanctions against the defendants, LaMar Hasbrouck, in his capacity as Director of Public Health,1 and the Illinois Department of Public Health (IDPH). The motion was denied, and the plaintiff now appeals. For the following reasons, we reverse the order of the circuit court and remand with directions.

3 Appellate Cases Posted 7-09-14

1.  Tax Deed Proceedings: Reversed and Remanded: Several rules of statutory interpretation set out and discussed.  Section 21-380 of the Property Tax Code provides that a redemption under protest may be sustained only on those grounds that would provide a basis to deny the issuance of a tax deed.  Section 21-350 of the Property Tax Code provides that the period of redemption is two years from the date of sale, unless that period is extended.   Section 21-385 of the Property Tax Code sets forth that the purchaser or his assignee may extend the redemption period for one additional year if he provides notice to the property owner that the redemption period has been extended.  Section 22-85 of the Property Tax Code provides that, if a tax deed is not recorded within one year of when the redemption period ends, otherwise the tax certificate holder loses his right to obtain a tax deed. Section 22-40 of the Property Tax Code provides that a court must insist on strict compliance with section 22-10 of the Property Tax Code before it issues a tax deed.  Section 22-10 of the Property Tax Code  provides that the purchaser or his assignee shall not be entitled to a tax deed unless he gives the owner three to six months’ notice of the expiration of the redemption period.   Schostok, J.

2014 IL App (2d) 130995  In re Application of the County Treasurer Filed 7-9-14 (LJD)

On April 5, 2012, the petitioner, John Zajicek, d/b/a Z Financial, filed a petition for a tax deed as to property owned by the respondent, Lloyd Giordano. On October 2, 2012, the respondent redeemed his property under protest, arguing that the funds he paid should be returned to him because the petitioner had not complied with the requisite provisions of the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2012)). After the trial court struck the respondent’s protest, the respondent filed a timely notice of appeal. For the reasons that follow, we reverse and remand for additional proceedings.

2. Criminal Law: Affirmed in part, Reversed in part and Remanded: To sustain a conviction of obstructing identification, the prosecution must prove that a person: (1) intentionally or knowingly provided a false or fictitious name, residence address, or date of birth to a peace officer; and (2) was either (a) lawfully arrested or detained, or (b) the information was requested from an individual that was reasonably believed to have witnessed a crime. The prosecution has wide latitude in making a closing argument and may comment on the evidence and any fair, reasonable inferences it yields, even if such inferences reflect negatively on defendant. The prosecution's arguments will result in reversible error only when they result in substantial prejudice against a defendant "to the extent that it is impossible to determine whether the jury's verdict was caused by the comments or the evidence."  Closing arguments must be viewed in their entirety and in context.  Section 113-3.1 of the Code of Criminal Procedure of 1963 (Code) permits a court to order a defendant to pay a fee for the service of a public defender.   However, before the fee may be imposed, a hearing must be conducted on either the court's own motion or on the motion of the State. Id. The hearing may be held any time after the appointment of counsel, but no later than 90 days after the entry of a final order disposing of the case. A court may only order reimbursement if it finds that defendant has a reasonably foreseeable ability to pay.  O'Brien, J.

2014 IL App (3rd) 120574 People v. Schronski  Filed 7-9-14 (LJD)

After a jury trial, defendant, Heather C. Schronski, was found guilty of obstructing identification (720 ILCS 5/31-4.5(a)(2) (West 2010)). The trial court sentenced defendant to 10 weekends in the county jail and 2 years of conditional discharge. On appeal, defendant argues that: (1) the trial  ourt erred in denying her motion for a directed verdict; (2) the State made several references to a deceased police officer in its closing argument that denied defendant a fair trial; (3) the court erroneously imposed a public defender fee without a hearing; and (4) the court did not award presentence incarceration credit. We affirm in part, reverse in part, and remand for further proceedings.

3.  Reasl EstateTaxation/ Trial Court Jurisdiction: Yes to Certified Question Answered and Remanded:  The underassessment of property not owned by the objector is cognizable in a tax objection case.  However, the only "relief available is a refund of the amount that the  objecting taxpayer would not have paid had the other property been correctly assessed."  The tax objection procedure does not provide a remedy to plaintiffs who feel that another’s property is being undertaxed and are seeking an increase in taxes on that property, rather than a decrease of their own taxes.  Plaintiffs seeking an increase in taxes are entitled to file an action for declaratory and injunctive relief.     Lytton, J.

2014 IL App (3rd) 120574  The Board of Trustees of Illinois Valley Community College District No. 513 v. Putnam County  Filed 7-9-14 (LJD)

From 2009 to 2011, defendant Kevin Kunkel, as Putnam County treasurer and collector, abated taxes for an ethanol facility owed by Marquis Energy, LLC. Plaintiffs filed a complaint against Kunkel, Marquis Energy, and Putnam County, seeking equitable and declaratory relief.   Marquis Energy filed a motion to dismiss, arguing that the court lacked jurisdiction.  Certified Question Answered

4 Appellate Cases Posted 7-08-14

1.  Illinois Public Labor Relations Act: ReversedThe issue before this court is whether the Board erred in finding that the ISA II position qualifies as a "confidential employee" position under the Act. The Treasurer failed to prove that Schuering's theoretical, yet unrealized, exposure to collective-bargaining documents as part of her Excel troubleshooting responsibilities qualifies her as a "confidential employee" under the Act. The Board's final decision that the position of ISA II is a "confidential employee" position within the meaning of section 3(c) of the Illinois Public Labor Relations Act was clearly erroneous. Further, the Treasurer's alternative basis for affirming the Board's decision is not supported by the record. Liu, J. with Harris, J. dissenting.

2014 IL App (1st) 132455     American Federation of State, County and Municipal Employees v. Illinois Labor Relations Board     Filed 7-08-14 (RJC)         
Petitioner, American Federation of State, County and Municipal Employees, Council 31 (Union), is the union that represented a State of Illinois employee in the position of "Information Systems Analyst II" (ISA II) who was excluded from the collective-bargaining unit when the respondent, Illinois Labor Relations Board (Board), granted a petition filed by the respondent, Treasurer of the State of Illinois (Treasurer), seeking to exclude any incumbent in that position from Union membership because it is a "confidential employee" position within the meaning of section 3(c) of the Illinois Public Labor Relations Act (5 ILCS 315/3(c) (West 2012)) (Act). Reversed.

2. Humane Care for Animals Act: Affirmed:  Koy has not demonstrated why the forfeiture of the horses under section 3.04(a) was a punishment that resulted from a criminal proceeding and not the result of a civil proceeding. A hearing on the forfeiture of companion animals before trial, pursuant to section 3.04(a) of the Act, is not a criminal proceeding and therefore does not implicate the sixth amendment right to a jury trial. Because the forfeiture proceeding was civil, the sixth amendment was not implicated. Spence, J. 

2014 IL App (2d) 130906    People v. Koy     Filed 7-08-14 (RJC)         
Respondent, Jamie A. Koy, appeals the trial court’s order granting the State’s petition for forfeiture of eight horses that were in her possession. She challenges the forfeiture order, arguing that section 3.04(a) of the Humane Care for Animals Act (Act) (510 ILCS 70/3.04(a) (West 2012)) is unconstitutional because it required the State to prove that she violated the Act only by a preponderance of the evidence at the forfeiture hearing, not to a jury beyond a reasonable doubt as the sixth amendment guarantees. Because we find that the sixth amendment did not apply to the forfeiture hearing, we affirm.

3. DCFS\expungement: Reversed and remanded: Under section 3(b) of the Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/3(b) (West 2010)), a child is abused when a person responsible for the child's welfare "creates a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function."  The majority of the ALJ's findings focused on the fact plaintiff made an inexplicable and poor decision in intervening in the school staff's handling of N.A. and then in his handling of N.A.  A bad decision does not necessarily constitute abuse. The evidence does not show plaintiff's actions rose to level of creating a substantial risk of death, disfigurement, impairment of health, or loss of bodily function.  Turner, J. 

2014 IL App (4th) 130722     Oglesby v. The Department of Chldren and Family Services    Filed 7-08-14 (RJC)              
In May 2011, plaintiff, Scott Oglesby, sought to expunge an indicated finding of abuse based on a substantial risk of physical injury that defendant, the Department of Children and Family Services (Department), had determined was credible. In September 2011, the Director of the Department accepted the administrative law judge's (ALJ's) recommendation and issued a final administrative decision denying the expungement because the finding of a substantial risk of physical injury was supported by a preponderance of the evidence. In November 2011, plaintiff sought administrative review of the Department's final order in the McLean County circuit court. Plaintiff later sought to amend his complaint to add a claim under section 1983 of the Civil Rights Act (42 U.S.C. § 1983 (2000)) based on the Department's failure to include a transcript of the witnesses' testimony at the administrative hearing in the record, but the court denied his request. Plaintiff also filed a motion to strike the Department's bystander's report of the testimony at the administrative hearing. At a July 2013 hearing, the court denied plaintiff's motion to strike and affirmed the Department's decision. Plaintiff appeals, arguing (1) the administrative guideline relied upon by the Department in indicating plaintiff is void, (2) the Department failed to comply with the Administrative Review Law (735 ILCS 5/art. III (West 2010)), (3) the circuit court erred by denying plaintiff's motion to amend his complaint, and (4) the Department's decision was against the manifest weight of the evidence. We reverse the circuit court's judgment, reverse the Department's order, and remand the cause with directions.

4. Criminal Law\AUUW: Vacated: Even though the Aguilar court "specifically limited" its holding to the Class 4 form of the offense, we cannot see how the Class 4 form of the AUUW statute can be unconstitutional on its face, but the Class 2 form is not, since both classes of the offense require the State to prove the exact same elements. The defendant's conviction for AUUW under section 24-1.6(a)(1), (a)(3)(A) is voidHarris, J. 

2014 IL App (4th) 120216-B     People v. Gayfield - Modified upon denial of rehearing    Filed 7-08-14 (RJC)

On January 11, 2012, a jury convicted defendant, J.W. Gayfield, of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)), a Class 2 offense based on a prior felony conviction. The trial court sentenced defendant to seven years in prison. Defendant appealed, arguing the prosecutor made improper remarks in his closing argument, thereby denying defendant a fair trial. On August 19, 2013, this court issued an order finding the prosecutor's closing argument was not improper and affirming the trial court's judgment.  On August 26, 2013, defendant filed a petition for rehearing pursuant to Illinois Supreme Court Rule 367 (Ill. S. Ct. R. 367 (eff. Dec. 29, 2009)). For the first time, defendant asked this court to consider whether his conviction should be reversed, asserting the AUUW statute was unconstitutional. On September 9, 2013, this court denied defendant's petition for rehearing.  On October 9, 2013, defendant filed a motion for supervisory order in the Illinois Supreme Court, which the supreme court granted on November 6, 2013. As a result, the supreme court directed this court to vacate our judgment in Gayfield, and our order denying the petition for rehearing, and to reconsider our judgment in light of Aguilar, to determine whether a different result was warranted.  In accordance with the supreme court's direction, we vacated our prior judgment and our order denying the petition for rehearing, and reconsidered our prior judgment in light of Aguilar. We again affirmed, finding that Aguilar did not change the result in this case. On March 25, 2014, defendant filed a petition for rehearing. We now modify our decision upon denial of defendant's petition for rehearing. we
vacate defendant's Class 2 conviction for AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)).

3 Appellate Cases Posted 7-07-14

1.  Worker's Compensation: Reversed and remanded:  The manifest weight of the evidence shows claimant's left shoulder injury arose out of his employment. Although the act of "reaching" is one performed by the general public on a daily basis, the evidence in this case established the risk to which claimant was exposed was necessary to the performance of his job duties at the time of injury. His action in reaching and stretching his arm into a deep, narrow box to retrieve a part for inspection was distinctly associated with his employment.  Harris, J.

2014 IL App (4th) 130392WC    Young v. The Illinois Workers' Compensation Commission       Filed 7-07-14 (RJC)
On June 2, 2010, claimant, Don Young, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employer, Doncasters, d/b/a MECO, Inc., and alleging a work-related injury to his left shoulder that arose out of and in the course of his employment on February 19, 2010. Following a hearing, the arbitrator denied claimant benefits under the Act, finding his injury was caused by a risk to which the general public was equally exposed.  On review, the Illinois Workers' Compensation Commission (Commission), with one commissioner dissenting, struck a portion of the arbitrator's decision but otherwise affirmed and adopted his decision and ultimate ruling in the case. On judicial review, the circuit court of  Edgar County confirmed the Commission's decision. Claimant appeals, arguing the Commission erred in finding his left shoulder injury did not arise out of his employment. We reverse and remand for further proceedings.

2.  Whistleblower Act: Affirmed:  The defense of laches is available where a discharged public-sector employee seeks back pay, regardless of whether the employee also seeks reinstatement. By affirming the trial court’s decision that plaintiff’s lawsuit is barred by laches, we do not mean to suggest any opinion as to whether plaintiff’s claim for front pay would otherwise be viable under Illinois law. Jorgensen, J.

2014 IL App (2d) 130947   Lashever v. Zion-Benton Township High School    Filed 7-07-14 (RJC)      
Plaintiff, Laura Lashever, appeals from the dismissal, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)), of her lawsuit against defendant, the Zion-Benton Township High School, seeking damages resulting from defendant’s alleged violation of section 15 of the Whistleblower Act (740 ILCS 174/15 (West 2012)). Defendant moved for dismissal on the basis that the lawsuit was barred by laches. Plaintiff argues on appeal that, because she sought no equitable relief, the defense of laches does not apply. We affirm.

3.  Juvenile\Abuse & Neglect: Affirmed:  The circuit court properly entered a finding of neglect, and reject Melissa's arguments, which rely on the same facts of record, that the circuit court should have entered a finding of no-fault dependency under section 2-4(1)(c) of the Act. The trial court's findings that Rayshawn was a neglected minor, and that the evidence did not support a finding of no-fault dependency, were not against the manifest weight of the evidence.  The circuit court did not abuse its discretion in granting the State's motion in limine to exclude the postpetition evidence in question. Cunningham, J.

2014 IL App (1st) 132178    In re Rayshawn H.    Filed 7-07-14 (RJC)      
This appeal arises from the April 30, 2013 and May 30, 2013 orders entered by the circuit court of Cook County, which found respondent Rayshawn H. (Rayshawn) neglected, and which adjudged Rayshawn as a ward of the court and set a permanency goal of "return home" within five months of the May 30, 2013 order. On appeal, Rayshawn's mother, respondent Melissa H. (Melissa), argues that: (1) the circuit court erred in finding that Rayshawn was neglected; (2) the circuit court erred in failing to find that Rayshawn was a "dependent" under the Juvenile Court Act of 1987 (705 ILCS 405/2-4(1)(c) (West 2012)) through no fault of Melissa; and (3) the circuit court erred in granting the State's motion in limine to exclude certain witness testimony regarding Rayshawn's mental state and behavior. We affirm.

1 Appellate Case Posted 7-03-14

1.  Juvenile\termination of parental rights: Affirmed:  Based on the evidence presented, the trial court’s determination that respondent failed to make reasonable progress toward the return of her children during the relevant nine-month period was not against the manifest weight of the evidence. No reason to depart from the plain language of the statute and hold that the trial court properly measured respondent’s progress during the nine-month period following G.S.’s adjudication of neglect.  Lytton, J.

2014 IL App (3d) 140060    In re A.S.   Filed 7-03-14 (RJC)

Respondent is the mother of L.S., A.S. and G.S. In October 2010, the court adjudicated L.S. and A.S. neglected minors. In August 2011, respondent gave birth to G.S, who was adjudicated a neglected minor on December 21, 2011. The State filed a petition for termination of respondent’s parental rights, alleging that respondent was unfit for failing to make reasonable progress toward the return of her children during the nine-month period of December 21, 2011, to September 21, 2012. Following a hearing, the trial court found respondent unfit. We affirm.

2 Supreme Court Cases Posted 7-3-14

1. Pensions\Admin. Review: Reversed: On appeal by both Burge and the Board, the Illinois Supreme Court addressed the issue of who should decide whether the pension benefits should be terminated—not whether they should be. The supreme court said that the earlier statutory provision giving the Board exclusive, original jurisdiction over matters “relating to or affecting the [pension] fund” governs because it is more specific than the more recently enacted general provision concerning violation of the Pension Code under which the Attorney General brought her action. Burge’s benefits had been approved by the Board in 1997. Unlike what the appellate court had held, the fact that, because of a tie vote, the Board did not terminate the benefits, but permitted them to continue, was not a statutory violation.  As noted, the question in this appeal is limited solely to who decides whether a police officer’s pension benefits should be terminated when he commits a felony.  On this issue, the legislative intent is clear. The decision lies within the exclusive, original jurisdiction of the Board under section 5-189. The appellate court was reversed and the circuit court’s dismissal of the Attorney General’s action was affirmed. Justice Burke delivered the judgment of the court, with opinion. Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion. Chief Justice Garman dissented, with opinion, joined by Justice Kilbride. Justice Freeman dissented, with opinion.

No. 2014 IL 115635    People ex rel. Madigan v. Burge   Filed 7-3-14 (RJC)

In 1997, Jon Burge retired from the Chicago Police Department, where he had served as a supervisor, and he began receiving pension benefits. In 2003, a federal civil rights lawsuit was filed alleging that torture and abuse of prisoners had taken place under his command and that he was aware of it. He denied all this under oath. In 2010, he was sentenced to four and one-half years in prison after a federal grand jury found him guilty of the felonies of perjury and obstruction of justice in the civil rights proceeding. Thus, Burge’s conduct in the civil lawsuit is the only criminal activity for which he has been convicted, and he has not been indicted or convicted for conduct taking place while he was a police officer. In 2011, the Retirement Board of the Policemen’s Annuity and Benefit Fund took up the question of whether Burge’s pension benefits should be terminated due to his felony convictions. The eight-person board was tied as to whether the convictions arose out of Burge’s employment as a police officer, and a motion to terminate benefits was not passed. The Board then issued a decision that benefits would continue, and no administrative review was sought.  In the circuit court of Cook County, the Attorney General filed a civil action under a 1982 statute permitting her to seek to enjoin any act or practice that violates the Pension Code. She sought a termination of new payments and repayment of earlier disbursements. It was alleged that the convictions related to, arose out of, or were connected with Burge’s service as a police officer, making the payments forbidden by the Code. The circuit court, however, was of the view that it did not have subject matter jurisdiction to hear the Attorney General’s complaint and dismissed it, finding that an earlier 1972 statute vested jurisdiction over the issue exclusively in the Board.  In the appellate court, a different conclusion was reached. That reviewing body opined that the Board and circuit court had concurrent jurisdiction, but that the Board had erred when it determined, on the basis of a tie vote, to allow benefits to continue. The appellate court found that decision to be a “voidable” one which should not be deferred to, and it reinstated the Attorney General’s complaint, remanding to the circuit court for a decision on the merits.

2. IL Pension Code\State Employees Group Insurance Act: Reversed:  The “pension protection” clause states that “membership in any pension or retirement system of the State *** shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” In this decision, the Illinois Supreme Court held that the State’s provision of health insurance premium subsidies for its retirees is a benefit of membership in a pension or retirement system under this provision, which the General Assembly was precluded from diminishing or impairing.   The supreme court said that the plain language of the constitution supports this conclusion. When the provisions of the 1970 Constitution were formulated, the group insurance statute then in effect provided health insurance subsidies to members of the State’s retirement systems, and the drafters of the Constitution are presumed to have known that. Health care benefits are not referred to in the pension clause, but neither is there any limitation imposed concerning them. The Illinois Supreme Court said in this decision that it is a well settled principle that pension rights should be liberally construed in favor of the rights of the pensioner. The circuit court erred in dismissing, for failure to state a cause of action, the plaintiffs’ claims that the challenged statute is void and unenforceable under the pension protection clause. Plaintiffs are entitled to proceed on their claims that their rights are governed by the version of section 10 of the Group Insurance Act which was in effect prior to the enactment of the challenged statute. Other common law and constitutional claims had been raised by the plaintiffs, but the supreme court refrained from addressing them here. The dismissal of the actions was reversed.  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion.

No. 2014 IL 115811    Kanerva v. Weems   Filed 7-3-14 (RJC)


On July 1, 2012, Public Act 97-695 took effect. It eliminated the statutory standards for the State of Illinois’ contributions to health insurance premiums for members of three of its retirement systems and established, instead, a new system under which the Director of the Department of Central Management Services (Malcolm Weems, one of the named defendants here) would make an annual administrative determination as to the amounts to be charged to the State and to its retirees. This statute thus fundamentally altered the State of Illinois’s obligations to contribute toward the cost of group health insurance benefits for these retired state employees. Four putative class actions were filed challenging the validity of this legislation under, among other things, the pension protection clause of the Illinois Constitution of 1970. They were consolidated in the circuit court of Sangamon County. The circuit court dismissed each of them for failure to state a cause of action, without certifying any classes. The Illinois Supreme Court allowed direct appeal. This is an issue of first impression.      

1 Appellate Case Posted 7-02-14

1.  Criminal Law\Post-Conviction Hearing Act: Affirmed: Section 5-5-3(c)(8) is susceptible to more than one interpretation and therefore ambiguous with regard to when a defendant's age should be considered for purposes of the statute. Defendant was not eligible for a Class X sentence pursuant to section 5-5-3(c)(8) due to his age at the time he was charged in this case.  No reason why defendant's plea agreement cannot be reformed so a valid sentence of between 3 and 10 years may be entered on remand giving both parties the respective benefits they each bargained for in the plea agreement.  As a result, this case is remanded for a new sentencing hearing so the trial court may impose a valid sentence, considering defendant is not eligible for Class X sentencing, that meets the parties' intent.  Pope, J.

2014 IL App (4th) 120617    People v. Douglas     Filed 7-02-14 (RJC)

In March 2012, defendant, Shamere Douglas, filed a pro se petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2010)). On June 5, 2012, the trial court summarily dismissed defendant's petition, finding the claims raised by Douglas were frivolous and without merit. Defendant appealed the summary dismissal of his postconviction petition.  However, on appeal, defendant does not argue any of the issues he raised in his postconviction petition. Instead, he argues the trial court erred in sentencing him as a Class X offender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-5-3(c)(8) (West 2008)) because he was under 21 when the crime was committed and when he was charged. Because defendant was not 21 when he was charged in this case, we find the trial court should not have sentenced defendant as a Class X offender pursuant to section 5-5-3(c)(8). However, because the plea agreement can be reformed so the sentence is valid and both parties receive the benefits for which each party negotiated, we remand this case to the trial court for a new sentencing hearing.

4 Appellate Cases Posted 7-01-14

1.  Property Tax Code\Tax deed: Reversed and Remanded: The issue is whether the trial court should have sustained the protest because the petitioner failed to comply with the requisite notice provisions of the Property Tax Code and thus could not have obtained a tax deed. Because the petitioner did not strictly comply with section 22-10 of the Property Tax Code, the petitioner was not entitled to a tax deed. That was a proper basis to sustain the respondent’s protest. The trial court therefore erred in not sustaining the protest. Schostok, J.

2014 IL App (2d) 130995     In re Application of the County Treasurer     Filed 6-30-14 (RJC)

On April 5, 2012, the petitioner, John Zajicek, d/b/a Z Financial, filed a petition for a tax deed as to property owned by the respondent, Lloyd Giordano. On October 2, 2012, the respondent redeemed his property under protest, arguing that the funds he paid should be returned to him because the petitioner had not complied with the requisite provisions of the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2012)). After the trial court struck the respondent’s protest, the respondent filed a timely notice of appeal. We reverse and remand for further proceedings.

2.  Criminal Law\Post-conviction Petition: Affirmed: Defendant did not raise the gist of a constitutional claim of ineffective assistance of appellate counsel. There was no basis in law to argue that the admission of D.C.’s videotaped statements violated the confrontation clause, because the record clearly demonstrated that D.C. was available as a witness for cross-examination at trial, her gaps in memory notwithstanding. Our opinion in Learn does not control here, as it is distinguishable, and we instead apply the well-established precedent that, if a declarant is physically present at trial and willing to answer questions, the confrontation clause does not preclude or restrict the use of hearsay evidence. Accordingly, the trial court properly dismissed defendant’s postconviction petition at the first stage as frivolous and patently without merit, and we affirm the judgment of the circuit court of Winnebago County.  Spence, J. with Schostok, J. specially concurring.

2014 IL App (2d) 121169    People v. Kennebrew     Filed 6-30-14 (RJC)

On April 5,Defendant, Reginald Kennebrew, appeals from the first-stage dismissal of his petition for postconviction relief. In 2009, he was found guilty of two counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse, although one of the counts of predatory criminal sexual assault was later reduced to aggravated criminal sexual abuse, which is a lesser included offense of predatory criminal sexual assault. He filed a pro se postconviction petition, arguing in part that his appellate counsel was ineffective. The trial court dismissed his petition, finding it to be frivolous and patently without merit for failing to raise the gist of a constitutional claim. Affirmed.

3.  Criminal Law: Affirmed: In the instant case, the trial court properly denied defendant's motion to dismiss the predatory charge on double jeopardy grounds. Simply put, jeopardy did not attach to the predatory charge at the time of the plea hearing because defendant did not enter a plea of guilty to that charge.  Rather, the charge was nol-prossed on motion of the State during the same hearing as part of the plea agreement. Although there have been some unclear statements in the law on this point, the precedent of our supreme court is fairly
well settled that jeopardy would not have attached to the predatory charge at the time of the plea hearing under the circumstances of the present case. Carter, J.

2014 IL App (3d) 130275    People v. Ventsias    Filed 7-01-14 (RJC)

After a jury trial, defendant, Peter A. Ventsias, was convicted of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)). Prior to sentencing, he filed a motion to dismiss the charge, alleging a double jeopardy violation. The trial court denied the motion, and defendant filed an interlocutory appeal to challenge that ruling. Affirmed.

4.  Negligent training/Counterclaims: Affirmed in part, reversed in part, and remanded: The negligent training claim is not duplicative and unnecessary, and allowing it to stand will create no danger of a judge or jury assessing or apportioning Terracon's alleged liability twice.
Accordingly, although we otherwise affirm the order of the trial court, we reverse the order with regard to the plaintiffs' negligent-training claim against Terracon and remand for further proceedings, at which time both parties may seek leave of court to amend their pleadings so that the court may adjudge the viability or nonviability of that claim. Spomer, J.

2014 IL App (5th) 130257    National Railroad Passenger Corporation v. Terracon Consultants, Inc.    Filed 7-01-14 (RJC)

The plaintiffs, National Railroad Passenger Corporation, Kathy M. Richardson, Gateway Eastern Railway Company, Kansas City Southern Railway Company, Union Pacific Railroad Company, Platte Pipe Line Company, Kinder Morgan Pipelines (USA), Inc., and Kinder Morgan Canada, Inc., appeal the order of the circuit court of Madison County that dismissed their complaint for contribution against the defendants, Terracon Consultants, Inc. (Terracon), and Matthew S. Balven, as special administrator of the estate of Heather S. Balven, deceased (Heather's estate). Affirmed in part, reversed in part, and remanded for further proceedings.