Kane County Nuggets

People v. King, 2018 IL App (2d) 151112 (August). Episode 530 (Duration 16:26)

State's expert witness who came in to plug the holes in their case got a little carried away.

Gist

The jury found defendant guilty of first-degree murder of his wife, and, the court sentenced defendant to 30 years’ incarceration.

Because defendant was prejudiced by the improper introduction of a former FBI profiler’s “crime-scene-analysis” testimony, we reverse and remand for a new trial.

Facts

A body of a women is discovered on the railroad tracks.

The head and neck were positioned over the northern rail.

A pink iPhone was placed against a couple of railroad spikes on the opposite side of the rail from the body. The body was clad in a gray top, black running shorts with no spandex liner, and black and pink running shoes. The shorts were loose, and there were no underpants beneath them.

A dried leaf was on the lower abdomen, just above the pubic area.

Her underwire bra was pulled up, half exposing the breasts. The woman’s running shoes were clean.

She Was Strangled

She died of asphyxiation. 

Kathleen’s blood alcohol concentration was 0.15

She had markings on her neck and chin consistent with being strangled. They found petechial hemorrhages in the eyes and epiglottis mucosa and found focal hemorrhages at the base of the tongue. Those findings, she testified, indicate strangulation.

Who Was She?

The woman was later identified as 32-year-old Army reservist Kathleen King, defendant’s wife.

Their home was located 1200 to 1300 feet from where she was found. People who were in the general area of the railroad tracks between 6 and 6:30 a.m. on July 6 did not see anyone running or see any cars in nearby.

She Was Having An Affair?

Turns out she was having an affair with someone she met in the reserves and defendant knew about it.

The State's Expert Witness

The State filed its motion in limine seeking leave to call Mark Safarik as an expert witness in crime-scene analysis.

The motion stated that Safarik was a “crime scene and behavioral analyst” for a private company known as Forensic Behavioral Services. The motion further stated that Safarik had 23 years’ experience with the FBI, including as a supervisor with the Behavioral Analysis Unit (BAU).

Safarik had been, in the vernacular, an FBI profiler.

The court granted the motion in limine over defendant’s objection.

The State's Expert Witness's Testimony

Safarik, a former police officer and FBI profiler with no medical training, testified, over objection, that the lividity on Kathleen’s body was inconsistent with her having died on the train tracks. Over objection, Safarik testified to his opinion that the cause of death was manual strangulation. He enumerated possible causes of asphyxiation, reiterated the cause of death as listed by the doctor and then eliminated all but manual strangulation as fitting the facts.

Safarik opined, over objection, that the death scene on the tracks was staged, that Kathleen was killed in her residence, and that someone close to her, not a stranger, staged the scene.

Safarik testified that, as director of Behavioral Services International, he conducts “analyses and interpretations” of complex violent crime scenes and violent crimes to “understand essentially what happened in the crime, how it happened[,] and why the events unfolded the way that they did.” Expert testimony such as Safarik’s falls under the general rubric of “crime scene analysis,” which involves the “gathering and analysis of physical evidence.” See Simmons v. State, 797 So. 2d 1134, 1151 (Ala. Crim. App. 1999). Here, the State also proffered Safarik as an expert in the cause and manner of death as well as the habits or characteristics of people who stage crime scenes.

Safarik testified that he also conducts “equivocal death evaluations” in cases where the “manner of death is not well established.” 

According to Safarik, the Kane County State’s Attorney’s Office asked him to examine the evidence from the scene where Kathleen’s body was found, to determine

(1) whether the scene was staged,
(2) the offender’s risk level,
(3) a general offender motive, and
(4) the “behavioral manifestations at the scene,” meaning the offender’s modus operandi, ritual behavior, and staging behavior.

From his review of the case, Safarik concluded the following:

(1) Kathleen did not usually run on the railroad tracks;
(2) defendant’s statement to police that Kathleen left the house to go running at 6:30 a.m. was inconsistent with the lividity present on her body less than half an hour later, when the death-scene photographs were taken, which indicated that she died prior to 6:30 a.m.;
(3) the lividity on Kathleen’s right leg was inconsistent with her position on the railroad tracks;
(4) if she had been running, her shorts would have been tied and not loose;
(5) the absence of an undergarment or a liner in Kathleen’s running shorts was inconsistent with her being out for a run;
(6) because Kathleen had “fairly large” breasts, running in an underwire bra would have been painful;
(7) Kathleen had a large selection of sports bras, so she would not have been running in an underwire bra;
(8) the presence of the underwire bra was inconsistent with defendant’s statement that Kathleen possessed running gear;
(9) Kathleen’s twisted bra strap would have been “very uncomfortable” and was inconsistent with the way she would have put on the bra;
(10) there was no sexual motive to the crime, because Kathleen’s bra was covering half her breasts;
(11) it was unlikely that Kathleen would have put on her left sock with the heel twisted toward the top of her foot;
(12) a clump of hair in her right sock was inconsistent with the way a person would dress herself;
(13) Kathleen was not wearing an armband, which was inconsistent with witnesses’ statements that she wore one when running;
(14) the absence of earbuds was inconsistent with witnesses’ statements that Kathleen listened to music while running;
(15) the leaf material on Kathleen’s body was inconsistent with that in the area where the body was found;
(16) Kathleen’s iPhone was placed on the tracks by someone;
(17) a trail of dried saliva mixed with blood running down Kathleen’s cheek was inconsistent with the way her head was positioned on the tracks, indicating that she was on the tracks after the saliva had dried;
(18) Kathleen was moved onto the tracks after she died in a different location;
(19) Kathleen died as a result of manual strangulation;
(20) a red mark on Kathleen’s neck was consistent with hands having been around her neck; (21) a bruise under Kathleen’s chin was consistent with someone having strangled her;
(22) every form of asphyxiation except manual strangulation was ruled out;
(23) Kathleen’s injuries were inconsistent with a fall on the tracks;
(24) scrapes on Kathleen’s shins were postmortem because there was no blood;
(25) Kathleen was incapacitated by alcohol and did not see the attack coming;
(26) the attack came on very quickly;
(27) strangers do not stage crime scenes;
(28) a staged crime scene indicates that the killer was someone close to the victim;
(29) the offender attempted to make Kathleen’s death look like an accident;
(30) the leaf material found on Kathleen’s body was from her residence; and
(31) based on the timeline defendant gave to the police, Kathleen was killed in her residence.

Judge Let's It In

The court found that Safarik’s “specialized knowledge” was “reliable” and “relevant” and that the general subject matter of his testimony would assist the jury to understand the evidence and to determine the facts.

Specifically, the court found that the positioning of Kathleen’s body on the railroad tracks was “a matter beyond the common experience of most jurors and is [a] subject of difficult comprehension.”

The Defendant's Medical Expert

The defense called a forensic pathologist, who testified that Kathleen died of a cardiac event brought on by stress, alcohol intoxication, lack of sleep, and caffeine consumption. Dr. Blum opined that Kathleen was running on the railroad tracks, became unwell, sat down on the rail, and expired.

According to Dr. Blum, her bruises and lividity were consistent with that scenario.

Dr. Blum acknowledged Dr. Kalelkar’s findings of petechial hemorrhages in the eyes and focal hemorrhages at the base of the tongue, but he opined that those findings, standing alone, did not support a conclusion that Kathleen was manually strangled.

Issue

Defendant argues that the state expert was improperly allowed to give an opinion as to the cause of death in a close case where the cause and manner of death were contested by two well-qualified, board-certified, forensic pathologists.

Defendant additionally contends that Safarik improperly opined on matters that were within the ken of the jurors when he testified that the death scene was staged. Defendant asserts that Safarik essentially gave the State’s closing argument.

Profiling Evidence Was Admitted

Profiling evidence usually involves a witness describing common practices, habits, or characteristics of a group of people. People v. Vasser, 331 Ill. App. 3d 675, 687 (2002). Thus, Safarik also proffered profiling evidence.

At oral argument, we asked the State what was Safarik’s area of expertise. That question was perspicacious, because the State could not readily answer it. Indeed, Safarik’s opinions ranged from forensic pathology, to botany, to the sartorial.

Safarik ventured beyond “crime scene analysis” into profiling when he testified to the characteristics of persons who stage crime scenes. In Mertz, our supreme court declined to opine on the admissibility of such evidence, holding that any error in admitting a profiler’s testimony comparing three distinct crime scenes, with a view as to whether they could be connected, was harmless because police officers had testified to the similarities that they had observed. People v. Mertz, 218 Ill. 2d 1, 72-74 (2005). The court emphasized that the profiler did not explicitly opine that the defendant committed the uncharged offenses that the profiler had studied. Here, in testifying that a staged scene indicates that the killer is someone close to the victim, Safarik indirectly, but pointedly, identified defendant as Kathleen’s killer, because, under the circumstances, no one else fit that profile.

The Expert's Opinion

Under the guise of expert “crime scene analysis,” Safarik basically offered his subjective opinion that the State’s evidence was sufficient to convict defendant.

As the State admitted at oral argument, the purpose of Safarik’s testimony was to “plug the holes” in the State’s case.

Illinois Rule of Evidence 702

Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) provides that,

“[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” “

No Frye Hearing Required

Crime-scene analysis” testimony does not rest on scientific principles. Simmons, 797 So. 2d at 1151; State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). Rather, it is based on “specialized knowledge” and offers “subjective observations and comparisons based on the expert’s training, skill, or experience.” Simmons, 797 So. 2d at 1151.

Therefore, such testimony is not subject to the test outlined in Frye v. United States, 239 F. 1013 (D.C. Cir 1923). Simmons, 797 So. 2d at 1151.

(Only) Medical Expertise Was Required

Here, medical evidence of the cause of Kathleen’s death was necessary, because a lay person of average intelligence would not know what killed her. She was found lying on the railroad tracks, not breathing or moving. There were no gunshot wounds or stab wounds. The body was warm, and there was no immediate evidence of foul play.

Consequently, Safarik—no matter how many crime scenes he had attended as a police officer, how much study he had done on violent crime scenes as an FBI profiler, or how many courses he had attended—was not qualified by knowledge, skill, experience, training, or education to opine on the cause and manner of Kathleen’s death. See Snelson, 204 Ill. 2d at 24 (expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training, or education to render an opinion).

For the court to allow Safarik to opine that Kathleen died of manual strangulation was especially egregious where defendant disputed Dr. Kalelkar’s conclusion as to Kathleen’s cause of death and presented his own equally well-qualified forensic pathologist to testify that she died of natural causes.

Holding

We hold that Safarik’s opinion as to the cause of death was so highly prejudicial that we must reverse defendant’s conviction. We also note that it was beyond Safarik’s expertise to opine on the effects of lividity.

Trial courts are obliged to balance the probative value of expert testimony against its prejudicial effect. Lerma, 2016 IL 118496, ¶ 23.

The evidence of guilt in the present case was not overwhelming. Dr. Blum questioned Dr. Kalelkar’s methodology and conclusions. There was no eyewitness, no confession, and no forensic evidence connecting defendant to the crime. Consequently, we hold that it was prejudicial error to grant the State’s motion in limine No. 1 and to permit the testimony at defendant’s trial

Analysis

Through Safarik’s inadmissible testimony, the State essentially “broke the tie” by presenting a second opinion to corroborate Dr. Kalelkar’s.

As a veteran of violent-crime-scene investigations, Safarik could doubtless identify the presence of lividity. However, whether it was consistent or inconsistent with the position of Kathleen’s body on the railroad tracks was appropriate testimony for a forensic pathologist, as lividity correlates to the cause and manner of death. See People v. Legore, 2013 IL App (2d) 111038, ¶ 6 (forensic pathologist pinpointed time of death in part by analyzing lividity on victim’s body). In the same vein, Safarik should not have been permitted to testify that the vegetation on Kathleen’s body came from her home, because such an opinion was beyond his expertise and the State presented no evidence of such a correlation.

To be admissible, an expert’s opinion must have an evidentiary basis, or else it is nothing more than conjecture and guess. City of Chicago v. Concordia Evangelical Lutheran Church, 2016 IL App (1st) 151864, ¶ 72.

The Jury Didn't Need This Kind Of Expert

Next, we consider defendant’s contention that the remainder of Safarik’s testimony was prejudicial because it consisted of conclusions that the jurors could draw for themselves. A requirement of expert testimony is that it will assist the trier of fact in understanding the evidence. Snelson, 204 Ill. 2d at 24.

Expert testimony addressing matters of common knowledge is not admissible unless the subject matter is difficult to understand and explain. People v. Lerma, 2016 IL 118496, ¶ 23. Evidence is beyond the ken of the average juror when it involves knowledge or experience that the juror lacks. People v. Mertz, 218 Ill. 2d 1, 72 (2005).

Here, Safarik testified to conclusions that the ordinary juror could draw: an experienced runner would not have dressed in the garments in which the body was found; Kathleen would not have left her contacts, earbuds, and armband at home when she went running; she would not have been running on the railroad tracks when her habit was to run in the park; and she would not have put on a sock with the heel twisted to the top of her foot.

None of this type of testimony should have been admitted. Crime-scene-analysis testimony is not scientific.

The Profiling Evidence Was Also Prejudicial

Our case is more like People v. Brown, 232 Ill. App. 3d 885 (1992), than Mertz.

In Brown, the First District held that the defendant, who was charged with possession of a controlled substance with intent to deliver, was prejudiced by profiling testimony regarding the violent habits of drug sellers. Brown, 232 Ill. App. 3d at 898. The court noted that the testimony “consisted of a complete profile of a drug dealer which corresponded to the circumstances surrounding [the] defendant’s arrest.” Brown, 232 Ill. App. 3d at 899-900.

Trial Court Tried To Limit The Evidence But In Practice The Expert Still Got Carried Away

Here, the court performed this analysis in ruling on the State’s motion in limine No. 1, as it precluded Safarik from directly identifying defendant as the killer or giving profiling testimony. Yet, at trial, Safarik was permitted to say indirectly what he could not say directly.

We follow Brown and hold that such profiling evidence is inadmissible.

Reveresed

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and the cause is remanded for a new trial.

See Also

• The Report
• The Other Report
• Episode 082 - People v. Jones, 2015 IL App (1st) 121016 (April) (How To Admit An Expert Witness And Exclude An Unreliable One)
• Episode 245 - People v. Simmons, 2016 IL App (1st) 131300 (September) (Attacking Expert Witness “Foundation” Not The Way To Exclude Unreliable Opinion Testimony)
• Episode 213 - People v. Burhans, 2016 IL App (3d) 140462 (July) (Expert Witnesses Under Higher Scrutiny)

An expert witness new foundational element is being implemented by an Illinois appellate court. This is their way of dealing with unreliable expert testimony. See Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council 

Illinois courts are dealing with unreliable expert witness testimony by creating a new foundational element.

See People v. Jones, 2015 IL App (1st) 121016 (04/22/2015).

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What is This Case About?

The defendant was convicted in a jury trial of first-degree murder based on circumstantial evidence. It was a close case with no eyewitnesses to the shooting. Defendant denied being the shooter. However, a gun was recovered from his home.

A bullet fell out of the victim’s body and and casings were recovered from the crime scene. A forensic scientist from the Illinois State Police laboratory specializing in firearms identification testified as an expert witness.

The firearm/toolmark examiner testified that the question of what is "sufficient agreement" between the items is based on his training and experience. ¶  34. The expert testified that he does not use a national standard, and that examinations at the Illinois State Police laboratory are "just based on our training and experience, which is verified by another examiner," and that there is no Illinois State Police standard. ¶ 34.

The expert gave his opinion that there was sufficient agreement between the bullet recovered from the victim’s body and the test bullets fired from defendant's gun. Thus, the bullet recovered from the victim’s body was fired from defendant's gun.

Issue

Was there a  sufficient foundation laid by the expert witness allowing him to establish a sufficient basis for the expert’s opinion testimony?

To begin to answer this question we must first look at the rules.

What Precisely Are the Rules on Admitting an Expert Witness?

Three Illinois Rules of Evidence are relevant here.

Let’s look at …

• Rule 702 Testimony by Experts
• Rule 703 Bases of Opinion Testimony by Experts
• Rule 705 Disclosure of Facts or Data Underlying Expert Opinion

Rule 702 Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. Rule 702. Rule 703 Bases of Opinion Testimony By Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Rule 703. Rule 705 Disclosure of Facts or Data The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. Rule 705. 

According to these rules, it is clear that a witness who has been qualified as an expert witness need not testify “to the underlying facts or data” on which the opinion is based upon. Rule 705. “The facts or data need not be admissible in evidence.” Rule 703.

Holding

However, the reviewing court in this case ruled that “all expert testimony, whether scientific or not, must have an adequate foundation in order to be admissible.” ¶ 54. “[T]he admission of an expert's testimony requires the proponent to lay an adequate foundation establishing that the information upon which the expert bases his opinion is reliable." ¶ 54 quoting People v. Safford, 392 Ill. App. 3d 212, 221 (2009).

The court held that:

This foundational requirement is required for the admission of all expert opinions. ¶ 54.

The appellate court then proceeded to overturn the murder conviction because the the testifying expert failed to explain the specific striations that he used to form his opinion. Thus, this expert failed to lay an adequate foundation.

So, if prosecutors have to start making sure to elicit the exact data points from the expert before the expert gives her opinion then this a rule the judges are creating from the case law.

Where Does it Come From?

Well, the reviewing court cited People v. Safford, 392 Ill. App. 3d 212, 221 (2009) (quoting Hiscott v. Peters, 324 Ill. App. 3d 114, 122 (2001), citing Soto v. Gaytan, 313 Ill. App. 3d 137, 146 (2000)) when it described this foundational element.

The appellate court also felt that “[p]art of the general foundation requirement for expert testimony is that 'it must be shown that the facts or data relied upon by the expert are of a type reasonably relied upon by [experts] in that particular field in forming opinions or inferences.” People v. Smith, 2012 IL App (1st) 102354, ¶ 70 (quoting People v. Contreras, 246 Ill. App. 3d 502, 510 (1993)).

The court saw this as an admissibility issue, not merely weight.

The court was acutely aware of the 2009 forensic science report that widely condemned many scientific procedures as being widely unreliable. See this report here.

Where It DID NOT Come From?

One thing is for sure. This “foundational” element for admission of an expert witness opinion is not in the rules.

As stated above, Rules 702, 703 and 705 do not require that the expert witness first explain what data is being relied upon to form the expert’s opinion. They rules say quite the opposite.

"Frye-Plus-Reliability"

The case that is often cited as the case establishing Illinois as a “Frye” state is Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002). Rule 702 itself refers to this case in the comments.

Remember, a Frye Hearing is required whenever scientific evidence is new or novel. This was not the issue in this case.

During the initial “Are we a Frye State Debate?” the idea of “Frye-plus-reliability” first came up. This was the idea that after a scientific technique or methodology is recognized as generally accepted, a trial court should still have to consider whether the opinion in the case is reliable.

On this issue, in 2002, the Illinois Supreme Court held that

Today, we clarify that this is not the standard in Illinois. The trial court is not required to conduct a two-part inquiry into both the reliability of the methodology and its general acceptance. The determination of the reliability of an expert's methodology is naturally subsumed by the inquiry into its general acceptance in the scientific community. Simply put, a principle or technique is not generally accepted in the scientific community if it is by nature unreliable. Additionally, the Frye-plus-reliability test impermissibly examines the data from which the opinion flows, while the technique remains generally accepted. Questions concerning underlying data, and an expert's application of generally accepted techniques, go to the weight of the evidence, rather than its admissibility. Donaldson, 199 Ill.2d at 81.

The Illinois Supreme Court Has More Than Just Rules on This Issue

The closest the Illinois Supreme has come to a foundational element for expert witnesses was in People v. McKown, 236 Ill.2d 278 (2010).

This is the case where the Court held that the “admissibility of HGN evidence in an individual case will depend on the State’s ability to lay a proper foundation and to demonstrate the qualification of its witness, subject to the balancing of probative value with the risk of unfair prejudice.” [emphasis added] McKnown, 236 Ill.2d at 314.

The Illinois Supreme Court did not even come close to creating a foundational element for expert witnesses.

Instead the Court:

• Tied he qualifications of the expert to how test is conducted
• HGN only admissible if NHTSA protocol is followed
• Only a properly trained officer could follow the protocol
• Opinion can only show consumption of alcohol

See McKnown, 236 Ill.2d at 306.

The court specifically held ”that evidence of HGN field-sobriety testing, when performed according to the  NHTSA protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired.” 236 Ill.2d at 306.

The appellate court in the case at hand did not cite to McKnown for this principle.

Big Picture

The basic situation confronting the trial and appellate courts is this: They have to figure out what to do with scientific evidence that is not new nor novel yet for some reason deemed unreliable when applied to a specific case.

General Frye standards say the expert opinion is admissible if the expert is qualified. Under this rule, the defense is allowed to show jury the data points that  the expert used to form their opinion.

That is what the line about letting it go to the weight but not the admissibility is all about.

This invented approach creates a new foundational element that takes into account the reliability of the evidence before allowing it to ever be seen by the jury.

This sounds like a "Frye-Plus-Reliability" standard but of course the court is not calling it that.

What They Should Have Done

McKnown hints at what the correct procedural pathway the court should have followed. The Court stated its ruling was "subject to the balancing of probative value with the risk of unfair prejudice.” McKnown, 236 Ill.2d at 314.

We know what that is. Its the 403 balancing we do in practically every case! See Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.

I know I looks like I want to a whole lot of trouble to point out an "error" in a case that I believe had the right outcome.

But I think the rules the matter.

List of Cases

• Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002)
• People v. McKown, 236 Ill.2d 278 (2010)
• People v. Safford, 392 Ill. App. 3d 212, 221 (2009)
• Soto v. Gaytan, 313 Ill. App. 3d 137 (2000)
• People v. Negron, 2012 IL App (1st) 101194 (2012)
• People v. Luna, 2013 IL App (1st) 072253 (04/13/20013)

People v. Simmons, 2016 IL App (1st) 131300 (September). Episode 245 (Duration 9:10).

Trial judge easily dismisses shoddy firearm expert testimony and sustains life sentence in this murder case.

See Also...

How to Admit An Expert Witness And Exclude An Unreliable One
Expert Witnesses Under Higher Scrutiny
Expert Witness Defined by Marisa Tomei from My Cousin Vinny is Credible

Background

Defendant was proven guilty beyond a reasonable doubt, where the three eyewitnesses identifications of defendant as the shooter bore sufficient indicia of reliability and were corroborated by firearms evidence linking defendant to the crime.

Holding

The trial court did not abuse its discretion in admitting the testimony of the State’s firearms identification expert where the deficiencies in his testimony merely affected its weight, not its admissibility. This court respectfully disagreed with People v. Safford, 392 Ill. App. 3d 212 (2009), as well as the body of appellate case law that has developed under Safford, on the question of the appropriate standard of review of the sufficiency of the foundation for an expert’s opinion.

Expert Witness

A witness may be qualified to testify as an expert “by knowledge, skill, experience, training, or education.” Ill. R. Evid. 702.

Along with establishing an expert’s credentials, “[t]he admission of expert testimony requires the proponent to lay an adequate foundation establishing that the information on which the expert bases her opinion is reliable.”

And to determine whether that information is reliable, the court must ask whether it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Ill. R. Evid. 703.

“If a proper foundation has been laid, the expert’s testimony is admissible, but the weight to be assigned to that testimony is for the jury to determine.”

Defendant's Argument

Defendant notes that, like the expert in Safford, the State's firearm expert simply testified to the process he uses to compare bullets and his ultimate conclusion that the bullets matched.

He noted that the class characteristics of the bullet matched but could not identify any of the individual characteristics that he found to be comparable between the two bullets. And, as the State's firearm expert conceded, the individual characteristics of two bullets are what enables him to determine whether two bullets match; the class characteristics alone cannot establish a match.

Court Agreed Expert's Testimony Was Shoddy

The reviewing court agreed with defendant that the State's firearm expert testimony was, to say the least, sparse, it did not agree that the defects in his testimony rendered it inadmissible.

The basis for a witness’ opinion generally does not affect his standing as an expert; such matters go only to the weight of the evidence.

The weight to be assigned to an expert opinion is for the jury to determine in light of the expert’s credentials and the factual basis of his opinion. Although the State's firearm expert did not explain what individual characteristics he saw that led him to conclude that the bullets matched, the absence of any such specificity simply went to the weight of his opinion.

Defendant Cross

Defense counsel certainly probed the State's firearm expert's opinion during cross-examination and argued that the jury should disregard it because it lacked any reasoned basis.

In fact, defense counsel even elicited evidence that there is a more objective method for firearm identification—the consecutive matching stria method—that he did not use. The reviewing court agreed with defendant that the State's firearm expert's opinion is similar to the expert opinion found to be inadmissible in Safford, but it declined to follow Safford.

Safford Is An Outlier

“Safford is an outlier case,” and no court since Safford has required that an expert disclose the specific reasons for his opinion as a prerequisite to admissibility.

Thus, the court in Negron found that “the fact that [the latent fingerprint examiner did not rest his analysis or ultimate opinion on a specific number of comparison points” simply went to the weight of his opinion that certain fingerprints matched.

And looking to Safford itself, this court concluded that its analysis was flawed. While the court in Safford cited the principle that the information on which an expert bases his opinion must be reliable (Safford, 392 Ill. App. 3d at 221), it did not correctly analyze that principle.

That principle centers on whether “the underlying facts or data upon which [the expert] seeks to base an opinion are of a type reasonably relied upon by experts in the particular field.”

But the majority in Safford asked a different question—whether the expert sufficiently detailed the reasons for his opinion. The presence or absence of such details is not the same as whether the expert relied on information of a type reasonably relied upon by experts in his field.

In this case, the State's firearm expert testified that he relied on the two bullets’ class characteristics and individual characteristics to reach his conclusion. He testified that other firearms and toolmark examiners rely on this information in conducting their analyses.

Thus, the State established that the State's firearm expert based his opinion on reliable information, i.e., information on which other experts in his field rely.

Expert Provided No Details

That he did not specify which individual characteristics matched on these particular bullets (i.e., the basis of his opinion) simply affected the weight of his opinion—a question for the jury to resolve, not a question for the court to resolve when deciding whether to admit or exclude the State's firearm expert's testimony.

Moreover, this reviewing court disagreed with the court’s conclusion in Safford that the failure to reveal the basis for an expert opinion necessarily curtails a defendant’s right to cross-examine the expert.

This case provides an excellent example. Here, defense counsel cross-examined the expert on his inability to specify which individual characteristics he identified as matching on the two bullets.

And she was able to elicit testimony that the Illinois State Police lack objective criteria to guide their firearms comparison, and that the consecutive matching stria method of identification has a more objective, data-driven foundation.

Defense counsel then used these points in her closing argument.

Finally...

While the expert's testimony did not help defendant—defendant would have benefitted most had the State's firearm expert's testimony been excluded entirely—his inability to recall which individual characteristics he identified did not preclude defense counsel from ably cross-examining him. 

See also People v. Jones, 2015 IL App (1st) 121016 (April).

People v. Lee, 2018 IL App (3d) 160100 (August). Episode 529 (Duration 4:49)

The officer said the baggie looked like it had oatmeal in it, later testing revealed it to be cocaine.

Gist

Police seized cocaine from defendant’s home while executing a search warrant in an unrelated criminal investigation. He got six years in prison.

Issue

Defendant’s pretrial motion to suppress argued that the substance was the fruit of an improper search because it was outside the warrant’s scope and not in plain view.

The Warrant

 Sterling police investigated defendant’s involvement in a shooting. A witness identified defendant as the shooter.

Police obtained a warrant to search defendant’s home for evidence related to the shooting.

The Drugs

A Detective found the drugs underneath defendant’s bed sheets after he pulled back defendant’s bed sheets. They found a knotted, plastic bags that contained a brown, powdery substance.

The bags were concealed in a larger plastic bag.

In officer’s experience, this packaging method suggested that the bags contained illicit drugs. He believed that the substance was either heroin or a “bad batch” of cocaine.

Hearing Testimony

According to defendant, counsel should have renewed the motion after Chavira testified that he could not initially identify the substance with certainty; this testimony rendered the seizure improper.

In fact, he testified at the compulsory joinder hearing that the substance looked like oatmeal.

Plain View Doctrine

In Horton v. California, 496 U.S. 128, 136-37 (1990), the Supreme Court officially adopted a long-recognized standard that, for police to properly seize evidence in plain view, its “incriminating character” must be immediately apparent.

Defendant claims that the substance’s incriminating character was not immediately apparent because Detective Chavira admittedly did not know that the substance contained cocaine.

Forget Humphrey

Defendant relies heavily on People v. Humphrey, 361 Ill. App. 3d 947 (2005), where a police officer stopped a motorist for speeding. During the stop, the officer noticed a container holding hundreds of pills near the passenger’s feet.

The court held that the officer improperly seized the pills because he did not know that they contained pseudoephedrine or whether possessing the pills constituted a crime.

This court disagrees with People v. Humphrey, 361 Ill. App. 3d 947 (2005).

Immediately Apparent

The Supreme Court has described “immediately apparent” as “an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary.” Texas v. Brown, 460 U.S. 730, 741 (1983).

Essentially, the “immediately apparent” element hinges on a probable cause determination; it does not require a law enforcement officer to know that an item is contraband or evidence of a crime. People v. Jones, 215 Ill. 2d 261, 277 (2005).

It's A Probable Cause 

Probable cause is not a high bar.

It exists if, from the standpoint of an objectively reasonable officer, the items or events at issue create a reasonable probability that defendant committed or is committing a crime.

It is an objective, not subjective, test.

Defendant Is Exaggerating What This Means

Defendant conjures a far-fetched story. He claims the police seriously entertained the possibility that these bags contained his breakfast. Apparently, forgotten in the bed-sheets, packed for his day.

Defendant leaps to the illogical and incorrect conclusion that the cocaine substance’s criminal character was not immediately apparent.

These Ain't No Innocent Item

Some items that law enforcement officers might associate with “criminal character” do not always demonstrate a reasonable probability that the defendant committed or is committing a crime.

For example, it would be unreasonable in some cases to immediately assign criminal character to a firearm, knife, or baseball bat; people commonly use these items as legitimate tools rather than instruments of crime.

In this case, however, an objectively reasonable law enforcement officer could immediately infer a reasonable probability that defendant’s knotted bags contained illicit drugs, not oatmeal.

Although it is legal for people to apportion oatmeal in individual plastic bags and store them in bed sheets, this hypothetical possibility does not render the seizure unreasonable.

Detective Chavira testified that the substance’s packaging was consistent with that typically used to store illicit drugs. A substance or item’s packaging and/or location can legally justify a seizure.

Holding

Chavira had probable cause to seize the substance the moment he discovered it hidden beneath defendant’s bed sheets in packaging commonly used to store illicit drugs. It is irrelevant whether Chavira subjectively believed that the substance looked like oatmeal, heroin, or a “bad batch” of cocaine; an objectively reasonable law enforcement officer could properly infer that the suspiciously packaged powder in defendant’s bed sheets was probably evidence of a crime.

We affirm his conviction.

See Also

People v. Petty, 2017 IL App (1st) 150641 (May). Episode 356 (Duration 7:33) (Plain View Doctrine Requires Immediate Apparent Criminality | An Unhappy Choice Of Words) 

People v. Jindra, 2018 IL App (2d) 160225 (July). Episode 528 (Duration 6:10)

Defendant filed his own motion but didn't really complain about his attorney.

Gist

Defendant very unhappy with the results of his trial for disorderly conduct involving the dog cathcer. 

Issue

The sole issue on appeal is whether the trial court should have conducted a preliminary inquiry pursuant to Krankel into defendant’s alleged claim that he was denied the effective assistance of counsel because of counsel’s failure to secure the presence of a key witness and to notify the judge of the witness’s statement.

Facts

On the same day as sentencing, defendant filed a pro se motion, titled “Motion (To Reconsider),” based on Cuthbertson’s nonappearance.

In his motion, defendant wrote the following:

“I would like the judge to reconsider this case. the [sic] key witness, Brissa Cuphbertson [sic], did not appear in court, nor was her written statement submitted to the judge. The public defender was Mr. Travis Lutz. This eye witness [sic] is crucial to this defense.”

Law

When a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial court should conduct an inquiry to examine the factual basis of the claim. People v. Jolly, 2014 IL 117142, ¶ 29; People v. Moore, 207 Ill. 2d 68, 77-78 (2003).

However, if a defendant does not sufficiently raise an ineffective-assistance claim, he does not trigger the need for the trial court to inquire. People v. Taylor, 237 Ill. 2d 68, 75-77 (2010).

See Also

People v. Ayres, 2017 IL 120162 (February). Episode 307 (Duration 5:41)

Here the Illinois Supreme Court considered whether the defendant’s bare allegation of “ineffective assistance of counsel” contained in a motion to withdraw his guilty plea and vacate his sentence was sufficient to trigger the trial court’s duty to conduct a preliminary Krankel inquiry, even though the allegation lacked any explanation or supporting facts.

The court concluded that a defendant’s “clear claim asserting ineffective assistance of counsel, either orally or in writing, *** is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry.”

Thus, to be sufficient, the complaint must be clear.

This Case

While defendant did mention counsel in his motion, he did not complain about counsel’s performance. Nor did he complain about counsel in his oral statements to the court.

“In instances where the defendant’s claim is implicit and could be subject to different interpretations, a Krankel inquiry is not required.” Thomas, 2017 IL App (4th) 150815, ¶ 26.

As in Thomas and Taylor, defendant’s statements could be subject to differing interpretations.

He easily could have been hoping for the trial court to reopen the proofs in order to hear the witness. Absent a clear claim of ineffective assistance of counsel, the trial court’s duty to conduct a Krankel inquiry was not triggered.

Holding

We find that defendant’s statements fell short of a clear claim of ineffective assistance of counsel that would trigger the trial court’s duty to conduct a preliminary Krankel inquiry.

Defendant never stated, orally or in writing, that counsel was ineffective. Although defendant’s motion mentioned his counsel, it is unclear that defendant, in fact, was complaining about counsel. In short, defendant failed to make a clear claim asserting ineffective assistance of counsel sufficient to prompt the court’s duty to conduct a Krankel inquiry.

There simply is no clear accusation of ineffective assistance, in defendant’s pro se motion or anywhere else in the record. As defendant’s statements fell short of a “clear claim asserting ineffective assistance of counsel” (Ayres, 2017 IL 120071, ¶ 18), he was not entitled to a Krankel inquiry. Accordingly, we conclude that defendant did not sufficiently raise a pro se claim of ineffective assistance of counsel and that the trial court did not err in failing to conduct a preliminary Krankel inquiry. 

People v. Kochevar, 2018 IL App (3d) 140660 (August). Episode 527 (Duration 8:40)

Another Romeo and Juliet Defender escapes from having to register as a sex offender.

First See

People v. Tetter, 2018 IL App (3d) 150243 (January). Episode 463 (Duration 8:43) 

Facts

Kochevar and C.R. had been acquainted for several years through their participation in track. In 2012, when he was 16 (nearly 17) and C.R. was 14, the relationship grew closer.

After Kochevar turned 18, their relationship became sexual.

Both were attending Prophetstown High School. C.R.’s parents called the police when they learned of the sexual nature of the relationship.

Defendant signed a written confession outlining the details of the relationship.

Charges

Defendant was charged by information with one count of misdemeanor criminal sexual abuse.

The count alleged that on March 15, 2013, he committed an act of sexual penetration with C.R., who was at least 13 but under 17 years of age and he was less than 5 years older than C.R.

Sentence

The jury found Kochevar guilty of one count of criminal sexual abuse.

After the verdict was entered, one of the jurors sent a letter to the trial judge saying the verdict was correct but urging him to be lenient in sentencing. He was sentenced to 24 months’ probation and required to register as a sex offender and undergo sex offender treatment and aftercare.

Issue

We next consider Kochevar’s constitutional challenge alleging the “Illinois statutory scheme of penalties that apply to a convicted sex offender, including community notification, and, inter alia, restrictions on movement and employment are unconstitutional as applied to him.” He cites the following offending statutes: the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2016)), section 11-9.3 of the Criminal Code of 2012 (720 ILCS 5/11-9.3 (West 2016)), section 5-5-3(o) of the Unified Code of Corrections (730 ILCS 5/5-5-3(o) (West 2016)), and section 21-101 of the Code of Civil Procedure (735 ILCS 5/21-101 (West 2016)).

As Applied Constitutional Challenge

Kochevar’s as-applied challenge rests on two arguments:

first, that, relying on Tetter, 2018 IL App (3d) 150243, the restrictions constitute punishment and their application to him renders that punishment grossly disproportionate to the severity of the crime in violation of the eighth amendment to the United States Constitution (U.S. Const., amend. VIII); and,

second, again relying on Tetter, the restrictions constitute a “penalty” and their application to him violates the clause of the Illinois Constitution requiring “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.

Case Law Says SORA Is Constitutional

Of course, the major obstacle to Kochevar’s requested relief is the unwavering position of our supreme court that the statutes in question do not constitute punishment. See People v. Adams, 144 Ill. 2d 381, 387-89 (1991), in which the court held that the restrictions of SORA are not punishment but rather are merely collateral consequences of conviction for covered sexual offenses, through People v. Malchow, 193 Ill. 2d 413 (2000), in which the court reaffirmed the sex offender laws are not punishment, and including its recent decision in People v. Pepitone, 2018 IL 122034, ¶ 18, in which it found the statute that “completely bars sex offenders who have targeted children[6] from public parks” is facially constitutional. See also 720 ILCS 5/11-9.4-1(b) (West 2016).

The supreme court could not have made its position clearer.

The SORA statutes do not constitute punishment or penalty.

But The Laws Have Gotten More Oppressive

We acknowledge, as a different panel of this court recently did in Tetter, 2018 IL App (3d) 150243, the heavy weight of supreme court precedent and still urge reconsideration and a different result in light of more recent statutory changes.

Tetter noted that in the years since those decisions were issued, the Illinois legislature has significantly increased the number, severity, and technicality of requirements and restrictions on sex offenders. Tetter, 2018 IL App (3d) 150243, ¶ 45.

We are mindful of the deference due the legislature’s enactment of laws, and we recognize that the sex offender statutory scheme has been developed to address legitimate and important state concerns. It is also true, however, that the checks and balances built into our state and federal constitutions require the courts to evaluate or reevaluate challenged legislation to ascertain when or if it runs afoul of federal and state constitutional rights and protections.

That duty is triggered in a situation such as this in which a claim has been raised that statutes deemed civil and regulatory appear to have evolved and become penal.

They Went With Tetter

This court in Tetter applied those factors to the sex offender statutory scheme and concluded that the scheme has become penal. Having and intending to convey no disrespect to the supreme court or to the legislature, we endorse, adopt, and incorporate the arguments set out in Tetter that make such a case, and we apply its findings in this case.

The Tetter majority undertook a careful, thorough, and thoughtful retrospective of sex offender registration and notification cases in the Illinois and federal courts and constructed a compelling argument that changes in the implementation and reach of the registration itself and the increasingly burdensome and debilitating restrictions of the legislative program have gradually, but inexorably, transformed rationally based, protective consequences into a statutory scheme that is indeed punitive.

Using the five-factor test set out inKennedy v. Mendoza-Martinez, 372 U.S. 144, 165, 168-69 (1963), Tetter meticulously tracks the evolution of sex offender registry cases and the legislatively enacted registration, notification, and restriction regulations to assess whether legislation intended to create a civil regulatory scheme is “so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil.” Tetter, 2018 IL App (3d) 150243, ¶ 41 (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997), quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)).

In sum, we are persuaded that Tetter’s legal analysis is sound, and we agree with its conclusion that the sex offender statutory scheme has morphed from civil regulation into something that is indeed punitive.

Analysis

Our conviction of the rightness of this conclusion is strengthened when we apply the statutory restrictions to Kochevar and assess their necessity in light of his offense and his individual characteristics.

The record in this case does not reveal a “sex offender who targets children” or a “sexual predator.”

We do note, however, that he has acknowledged and rationalized continuing to see C.R. after he was charged and in violation of no contact orders. What the record does show is a typical teenager—brash, occasionally rash, with soft spots and spurts of poor, but largely harmless, judgment—generally living life much like other teens.

He was graduating, going off to college, full of potential and plans when he was removed from this relative homogeneity, charged, convicted, and sentenced for criminal sexual abuse. As a mandatory part of his sentence, he was and is required to register as a sex offender. Because he was 18 years old at the time of his offense, certain benefits, which would have been applicable to him had he acted six to seven months earlier, are unavailable. A few keystrokes on any internet browser will bring up Kochevar’s name, his picture, the name and citation of his offense, and the fact of his conviction on the Illinois sex offender website. Id. § 120(c), (d).

His status as a sex offender is thus broadcast to the world, and he faces a lifetime of employment rejection, public disdain, impairment of his enjoyment of parental involvement and his discharge of parental responsibilities, curtailment of his liberty to live where he chooses and to move freely about his community, suspicion, and permanent stigma.

Excessive & Disproportionate

Pursuant to our conclusion that Kochevar’s subjection to the sex offender restrictions is punishment, we next assess his claims that this punishment is both excessive and disproportionate.

The reality of the sex offender registration and notification strictures is that, under most of the regulations, the same penalties are imposed upon conviction of a sex offense involving a minor without consideration of whether it is a single act of teen sex or persistent predatory sexual conduct; the second alternative does not apply.

Accordingly, we analyze Kochevar’s claim to determine whether, as to him, the penalties in the statute are so wholly disproportionate as to shock the moral conscience of the community. By contrast with that sentence and under any reasonable standard of comparison, the pervasive negative impact of the SORA regulations is genuinely shocking in this case.

Of paramount importance, there is nothing in the record that suggests that this young man targeted children, targeted underage girls, or even targeted C.R. According to the record, based on Kochevar’s statements, he and C.R. were engaged in a friendship that evolved over time into a relationship that was sexual. He was not a predator. We find nothing in his personal record or in the record on appeal that suggests that the rigid technical strictures of the sex offender statutes are necessary to restrain instincts or predilections to prey on children that Kochevar gives no evidence of having now or ever having had.

The imposition of the restrictions is punitive, and because it is unnecessary in order to secure Kochevar’s compliance with the statutes’ expressed purpose of preventing abuse of children, it is grossly disproportionate to his crime and violates the eighth amendment to the United States Constitution.

Holding

Further, that the severe punitive impact on Kochevar constitutes a penalty subject to evaluation under the proportionate penalties clause seems clear to us. This was a young man who the record shows had worked hard to excel academically, athletically and, most importantly, as a decent human being and was planning for a promising future.

He was charged with and convicted of a sexual crime and removed from the typical teen pool. Now, after having served his sentence, he is tethered to that youthful mistake by a plethora of restrictions, some of which are effective for 10 years and others for the rest of his life.

This system that the legislature has devised affirmatively obstructs the State’s constitutional objective of restoring this particular offender to useful citizenship in violation of the proportionate penalties clause of the Illinois Constitution.

For all of the foregoing reasons, we find Illinois’s statutory sex offender scheme, as applied to Kochevar, violates both the eighth amendment to the United States Constitution and the proportionate penalties clause of the Illinois Constitution.

We affirm Kochevar’s conviction, jail sentence, and term of probation. We vacate his requirement to register as a sex offender and to comply with SORA (730 ILCS 150/1 et seq. (West 2016)), the Notification Law (730 ILCS 152/101 et seq. (West 2016)), section 11-9.3 of the Criminal Code of 2012 (720 ILCS 5/11-9.3 (West 2016)), section 5-5-3(o) of the Unified Code of Corrections (730 ILCS 5/5-5-3(o) (West 2016)), and section 21-101 of the Code of Civil Procedure (735 ILCS 5/21-101 (West 2016)). The matter is remanded to the Whiteside County circuit court for the entry of an order consistent with this opinion.

Let's apply the Case Law Memory Formula to the the top 13 most important criminal law cases released by Illinois Supreme Court in 2017. Episode 526 (Duration 28:07)

Go here to listen to the Case Law Memory Formula.

2017 Top 13 Illinois Criminal Law Cases Released By The Illinois Supreme Court

Here's a quick snapshot of the top cases:

1. People v. Holmes - July

Police can stop you if they see a gun. "Hey, Homes why you taking my firecracker gun?"

2. People v. Brooks - November

After a motorbike accident, Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn. PictureM Mel Brooks dressed as an Indian like in Blazing Saddles kicking and screaming in the ambulance and the hospital.

3. People v. Way -  April

Lady veers into oncoming traffic and injures another driver. She goes the Wrong WAY while all taoked up on weed; Court says she should have been allowed to call her doctor then say, "April's Fool."

4. People v. Hardman - November 

Knowledgeable cop can testify that a building is a school. Picture the opening scene of a movie: arial view of a building with a Concrete Statute (a hard man) of Squanto holding an ear of corn like a pen.

5. People v. Fort - February

State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count. The Rambo of groundhogs digs under a military fort to get in. The gophers inside capture him and charge him with murder but he's acquitted.

6. People v. Ayres - February

Mails a motion with the title "Ineffective Assistance" and says nothing else. Imagine a prisonor flying a kite through the bar widows, the kite has the words "ineffective assistance" written on it, and has paper hearts on the tail. The kite goes through the air (Ayres) and hits the judge right in the kisser.

7. People v. Shinaul - February

State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction. Walk up to a prosecutor and kick him in the shins, they'll scream "awe" - shin-awe. Then to calm him back down feed him a groundhog steak.

8. People v. Howard - March

Sex offender anti loitering statutes are constitutional, this dude was dropping someone off at a school. Howard Walowitz dresses in a gown to sneak across a school while carrying an easter egg in a basket. He gets caught and charged with being a sex offender.

9. People v. Pearse - March

Defendant is in the hospital and doesn't register with the PD of the city the hospital is in. Picture defendant tussling with a crocodile over his purse where he keeps his shamrock shake.

10. People v. Sebby - June

Plain error first prong requires a closely balanced case. A chubby dad gets into a fight with his doctor who is putting his thumb on the scales and tipping the scales. The dad wants to fit into his new summer father's day suit.

11. People v. Brown - November

Defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case. For thanksgiving dinner defendant takes a brown duky from his pants mixes it with the mash patatoes and throws it against the wall.

12. People v. Relerford - November

Just a small part of the Illinois stalking statute was declared unconstitutional. Worse marketing idea ever: for black friday release a flock of canariees carring coupons announcing you have a Sale-on-Fords. You won't sell anything but you'll beat the stalking charge. 

13. People v. Ringland - June

Prosecutors cannot designated officials with general policing power. The ringleader slapped lights on an SUV put sunglasses and short shorts on a retired detective and had him stopping cars looking for them kgs (kilos).

People v. Coty, 2018 IL App (1st) 162383 (August). Episode 525 (Duration 7:56)

Defendant had an IQ between 55 and 65, his 50 year sentence was a life sentence, and he needs a new sentencing hearing.

Gist

Defendant has an IQ of between 55 and 65. He was mildly intellectually disabled and convicted of predatory criminal sexual assault. But also considered to be at the “extremely low” range of intelligence. He had a prior criminal sexual assault in his past.

He originally was sentenced to life in prison. After appeal it was remanded for resentencing and he then got 50 years.

Issue

On this appeal, the defendant asserts that the trial court abused its discretion in sentencing him to a 50-year extended term sentence, without properly considering that it was, in fact, imposing a de facto life sentence on a defendant with intellectual disabilities.

Second, the defendant contends that the imposition of this de facto life sentence is unconstitutional as applied to him both under the eighth amendment and the proportionate penalties clause.

Holding

For the reasons that follow, we agree with the latter contention. As shall be fully discussed below, we find that the trial court on remand imposed a discretionary de facto life sentence without a record sufficient to assess the unique factors that can impact the culpability of the intellectually disabled. We hold that this procedure resulted in constitutional error. 

Illinois Constitution

The Illinois Constitution states that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art I., § 11.

“[T]he framers [of the Illinois Constitution] intended *** to provide a limitation on penalties beyond those afforded by the eighth amendment.” People v. Gipson, 2015 IL App (1st) 122451, ¶ 69; People v. Harris, 2016 IL App (1st) 141744, ¶ 40. And our supreme court has held that it is inaccurate to state that these two constitutional provisions are synonymous, although the relationship between them is certainly unclear.

Nevertheless, our supreme court has never shied from applying eighth amendment precedent to decide proportionate penalties cases, and we see no reason why we should not do the same here.

Proportionate Penalties Claim

To succeed on a proportionate penalties claim, the defendant here must show either

(1) that the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community or
(2) that similar offenses are compared and the conduct that creates a less serious threat to the public health and safety is punished more harshly.

People v. Klepper, 234 Ill. 2d 337, 348-49 (2009); see also Leon Miller, 202 Ill. 2d at 338.

Our supreme court has repeatedly refused to define what kind of punishment qualifies as cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community, because “as our society evolves, so too do our concepts of elemental decency and fairness which shape the ‘moral sense’ of the community.” Leon Miller, 202 Ill. 2d at 339 (citing Trop v. Dulles, 356 U.S. 86, 101 (1958) (whether a punishment shocks the moral sense of the community is based upon an “evolving standard[ ] of decency that mark[s] the progress of a maturing society”)).

It All Began With The Intellectually Disabled

At the time we decided Coty II, that standard had evolved to prohibit the imposition of the death penalty on juveniles and intellectually disabled offenders, as well as to condemn the imposition of mandatory natural life imprisonment on juveniles. See id. ¶ 63 (citing Graham v. Florida, 560 U.S. 48, 68 (2010), Roper v. Simmons, 543 U.S. 551, 569-70 (2005), Miller v. Alabama, 567 U.S. 460, 488-89 (2012), and Atkins v. Virginia, 536 U.S. 304, 321 (2002)).

Accordingly, in Coty II, we held that the statutory provision under which the defendant had been sentenced to mandatory natural life imprisonment, without the trial court having any discretion, was disproportionate as applied to him, so as to shock the moral sense of our community. Id. ¶ ¶ 64-69 (citing Leon Miller, 202 Ill. 2d at 339-42). ¶ 63

Community Standard's Of Decency Have Evolved

Since our decision in Coty II, our community’s standards of decency have considerably evolved, albeit in the context of juvenile defendants and the eighth amendment (U.S. Const., amend. VIII). First, in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), the United States Supreme Court held that state courts must give Miller effect in collateral proceedings and that, under Miller, life imprisonment without parole is unconstitutional for juvenile offenders “whose crimes reflect the transient immaturity of youth” “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at ___, 136 S. Ct. at 734.

Roper held that the eighth amendment prohibited death penalty sentences for juveniles who commit murder. Roper, 543 U.S. at 578-79. Graham held that the eighth amendment prohibited mandatory life sentences for juveniles who commit nonhomicide offenses. Graham, 560 U.S. at 82.

Miller held that the eighth amendment prohibited mandatory life sentences for juveniles who commit murder. Miller, 567 U.S. at 489-90.

Juveniles Are Different

All three decisions recognized the following general difference between juveniles and adults, which render juveniles less morally reprehensible:

(1) lack of maturity and underdeveloped sense of responsibility;
(2) vulnerability and susceptibility to negative influences and outside pressures; and
(3) a yet unfully formed character, which makes them more malleable and their malfeasance less indicative of irretrievable depravity.

Graham, 560 U.S. at 68; Roper, 543 U.S. at 569-70.

In Miller, the Supreme Court further held that “children are constitutionally different from adults for purposes of sentencing” and that a trial court must therefore be able to consider mitigating factors in determining whether to impose a natural life sentence. Miller, 567 U.S. at 471.

Then Came DeFacto Life Sentences

Next, in People v. Reyes, 2016 IL 119271, ¶ 9, our supreme court interpreted the holding of Miller to apply to de facto as much as de jure life sentences.

Noting that Miller’s “holding required that life-without-parole sentences be based on judicial discretion rather than statutory mandates” (id. ¶ 4), our supreme court held:

“A mandatory term-of-years sentence that cannot be served in one lifetime has the same practical effect on a juvenile defendant’s life as would an actual mandatory sentence of life without parole—in either situation, the juvenile will die in prison. Miller makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable prison term without first considering in mitigation his youth, immaturity, and potential for rehabilitation.” Id. ¶ 9.

In addition our supreme court held: “ ‘[T]he teachings of the Roper/Graham/Miller trilogy require sentencing courts to provide an individualized sentencing hearing to weigh the factors for determining a juvenile’s “diminished culpability ***[”] when, as here, the aggregate sentences result in the functional equivalent of life without parole. To do otherwise would be to ignore the reality that lengthy aggregate sentences have the effect of mandating that a juvenile “die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence *** more appropriate.”

All This Applies To Discretionary Life Sentences As Well

Subsequently, in People v. Holman, 2017 IL 120655, our supreme court interpreted Miller to apply to discretionary, as much as mandatory, natural life sentences.

Accordingly, as of today, our community’s standards of decency appear to have evolved to prohibit the imposition of de jure and de facto mandatory and discretionary life sentences for juveniles, where procedurally the court fails to consider the attendant characteristics of youth. See Reyes, 2016 IL 119271, ¶ 9; Holman, 2017 IL 120655, ¶ 46; Buffer, 2017 IL App (1st) 142931, ¶¶ 62-63.

We've Come Full Circle

In the midst of significant juvenile jurisprudence, however, one must not forget that such jurisprudence began with Atkins and the Court’s concern with the intellectually disabled. See Miller, 567 U.S. at 483-84, 509 (citing Atkins, 536 U.S. at 316, 342).

In Coty II, we already held that under Atkins adults with intellectual disabilities deserve special treatment in a proportionality analysis (see Coty II, 2014 IL App (1st) 121799-U, ¶¶ 61-75). In doing so, we only implied that adults with intellectual disabilities should be treated similarly to minors.

The Intellectually Disabled Are Different Less Culpable

Intellectually disabled individuals, just like juveniles, are less culpable, where the deficiencies associated with intellectual disability “diminish their personal culpability.” Atkins, 536 U.S. at 318. Indeed, “clinical definitions of [intellectual disability] require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” Id.; see also 730 ILCS 5/5-1-13 (West 2014) (defining intellectual disability as “sub-average general intellectual functioning generally originating during the developmental period and associated with impairment in adaptive behavior reflected in delayed maturation or reduced learning ability or inadequate social adjustment”).

Those attendant characteristics include, but are not limited to: 

Process Information

An intellectually disabled person has a diminished capacity to understand and process information.

Communication

Intellectually disabled person has a lesser ability to communicate.

Mistakes & Experience

Some individuals won't be able to abstract from mistakes and learn from experience.

Logical Reasoning

Intellectually disabled persons “frequently know the difference between right and wrong and are competent to stand trial,” but “by definition[,] they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions.” Atkins, 536 U.S. at 318.

Manipulatioin & Pressure

Additionally, they are unable to understand others’ actions and reactions, so as to be more susceptible to manipulation and pressure.

Quick To Confess

Additional risks accompanying the unique characteristics of the intellectually disabled are the possibility that they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the fact that they are “typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.” 

Act On Impulse

In addition, “there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and *** are followers rather than leaders.” Similarly, with respect to deterrence, the same cognitive and behavioral impairments that make intellectually disabled individuals less morally culpable make it less likely that they can process the fact that their behavior exposes them to severe punishment.

Deterance Has No Effect

Simply put, an intellectually disabled defendant is far less likely than an average adult to understand the permanence of life in prison, let alone weigh the consequences of such a life against the perceived benefit of criminal conduct. As such, just as with minors, it is less likely that the possibility of facing such an extreme sanction will deter an intellectually disabled person from committing a crime.

Holding

Accordingly, since we hold today that minors and adults with intellectual disabilities should be treated similarly in a proportionality analysis, we see no reason why, under our community’s evolving standards of decency, the prohibition against the imposition of discretionary de facto life sentences without the procedural safeguards of Miller and its progeny should not be extended to intellectually disabled persons where the record shows that the trial court did not take into account those characteristics accompanying an intellectual disability as articulated in Atkins, so as to show “irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” Holman, 2017 IL 120655, ¶ 46.

We find that the procedural safeguards originating with Atkins, and created by Miller and its progeny are applicable to intellectually disabled defendants under our constitution.

It's A De Facto Life Sentence

With time served, the defendant’s earliest release (parole) date will be when he will be 84 years old. The defendant’s actual discharge date is set for 2052, at which point he will be 88.

As shall be explained further below, under our prior holdings, and contrary to the State’s assertion, there can be no doubt that this sentence is equivalent to condemning the defendant to natural life imprisonment. This exact panel has previously held that a 50-year sentence imposed on a 16-year old juvenile was a de facto life sentence. Buffer, 2017 IL App (1st) 142931, ¶ 62.

Applying the rationale of Buffer and Sanders to the facts of this case, we are compelled to conclude that the intellectually disabled defendant, whose average life expectancy is at best 64 but who will not be released until he is at least 84, has similarly been condemned to spend the rest of his days in prison.  This “unsurvivable” sentence is equivalent to natural life imprisonment, a sentence which the original sentencing judge, who presided over the trial, heard all the evidence, and viewed all the witnesses, believed was inappropriate.

Remand Necessary

We are compelled to conclude that the imposition of a 50-year de facto life sentence on this particular defendant, without the procedural safeguards of Atkins, Miller, and its progeny, was a penalty so wholly disproportionate that it violated the moral sense of our community.

Accordingly, we find the sentence unconstitutional under the proportionate penalties clause (Ill. Const. 1970, art. I, § 11). ¶ 87 We therefore vacate the defendant’s sentence and remand for a new sentencing hearing before a different judge. On remand, we urge the public defender to have the defendant’s mental health evaluated and to provide the court with as much information as possible as to the defendant’s behavior and progress, or lack thereof, while in prison.

We also instruct the trial court on remand to give serious consideration to the attendant characteristics of the defendant’s intellectual disability and the fact that this disability “diminish[es] both [his] culpability and the need for retribution” particularly in the context of this, a nonhomicide offense. 

On The Double

Furthermore, because the defendant has already spent nearly 15 years in prison and this is the second time we are vacating his sentence, we instruct the trial court to act with the utmost expediency.

For all of the aforementioned reasons, we vacate the defendant’s sentence and reverse and remand for a new sentencing hearing, with instructions.

In re N.G., 2018 IL 121939 (August). Episode 524 (Duration 22:24)

McFadden is overruled.

First See

People v. McFadden, 2016 IL 117424 (June). Episode 187 (Duration 5:17) (Old UUW convictions don't vacate themselves; you have to file a motion to get rid of them)

There we reaffirmed long-standing principles that a facially unconstitutional statute is void from the moment of its enactment and unenforceable, that a declaration that a statute is facially invalid must be given full retroactive effect, and that a conviction based on such a statute cannot stand, we held, based on the language of the UUWF statute, that where a defendant has not taken affirmative action to have a court set aside the initial conviction and therefore still has an extant, undisturbed felony conviction on his record at the time he engaged in the conduct on which the subsequent UUWF prosecution was predicated, the elements of the UUWF statute are satisfied and the UUWF conviction may stand, regardless of whether the initial conviction might be subject to vacatur later on the grounds that it was unconstitutional.

Gist

One of the three felony convictions on which DCFS’s claim of depravity depended on a conviction from a 2008 aggravated unlawful use of a weapon struck down as unconstitutional in Aguilar.

Issue

The dispositive question in this appeal, and the one we must therefore now address, is whether the trial court could rely on such a constitutionally invalid conviction in determining whether DCFS had met its burden of establishing that the father was unfit and, on that basis, terminate his constitutionally protected parental rights.

Holding

The answer to that question, as the appellate court correctly concluded, is that it could not.

Because section 24-1.6(a)(1), (a)(3)(A), (d) is facially unconstitutional under the second Anamendment to the United States Constitution (Aguilar, 2013 IL 112116, ¶ 22; People v. Burns, 2015 IL 117387, ¶ 21; Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)) and the existence of Floyd F.’s conviction under that facially unconstitutional statute was necessary to the trial court’s determination that he was depraved within the meaning of the Adoption Act, Floyd F.’s conviction under the statute must be vacated, and the circuit court’s finding of depravity must be reversed.

Parental Rights Fundamental

We begin our review of this case by recognizing the gravity of the interests at stake.

When the State secured Floyd F.’s conviction under the portion of the AUUW statute held unconstitutional in Aguilar, 2013 IL 112116, it violated his second amendment rights. Through this proceeding, the State seeks to use that unconstitutional conviction to secure an additional sanction: termination of Floyd F.’s parental rights.

Those parental rights are fundamental.

Montgomery v. Louisiana

The conviction must be treated by the courts as if it did not exist, and it cannot be used for any purpose under any circumstances. Undeniably, the state is barred from giving any legal recognition to a conviction based on a facially unconstitutional statute. See Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, 730 (2016).

We thus have an affirmative duty to invalidate Floyd F.’s AUUW conviction and to treat the statute on which it was based as having never existed.

Court Could Vacate The Conviction

There is no merit to the argument that this proceeding is not an appropriate forum for Floyd F. to invoke Aguilar.

Our court has held that a judgment based on a statute that is facially unconstitutional is void. People v. Price, 2016 IL 118613, ¶ 31. Illinois law permits void judgments to be impeached at any time in any proceeding whenever a right is asserted by reason of that judgment, and it is immaterial whether or not the time for review by appeal has expired.

While Floyd F. has pursued a postconviction petition in his 2011 criminal case claiming that his 2008 conviction was a nullity that petition is not before us, nor was it before the appellate court. That, however, is of no consequence. In such circumstances, where there was a substantial denial of constitutional rights, we held that allowing nonstatutory remedies would be justified.

This, of course, is just such a case.

Accordingly, where a person has been convicted under an unconstitutional statute, he or she may obtain relief from any court that otherwise has jurisdiction. The person is not restricted to specific statutory methods for collaterally attacking a judgment. And it does not matter that the time for direct appeal may have passed. Simply put, under Illinois law, there is no fixed procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted.

Indeed, if the constitutional infirmity is put in issue during a proceeding that is pending before a court, the court has an independent duty to vacate the void judgment and may do so sua sponte.

McFadden Was Different

They did try to say that defendant in McFadden didn’t prove he was convicted under the unconstitutional provision and he never asked for the revocation.

First Sign Of Trouble

McFadden is also problematic because of the line of United States Supreme Court authority on which it is based.

McFadden neither considered nor addressed Montgomery or the numerous earlier United States Supreme Court cases which have consistently held that convictions based on facially unconstitutional statutes are void, can be given no effect, and must be treated by the courts as if they do not exist. No mention of Montgomery is made in the dissent either.

Oops.

McFadden Was A Mistake

What our decision in McFadden did not take into account is that the same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment, for even the use of impeccable factfinding procedures could not legitimate a verdict’ where ‘the conduct being penalized is constitutionally immune from punishment.

Our appellate court has struggled to reconcile McFadden with the line of United States Supreme Court authority culminating in Montgomery, often calling for a legislative solution in the absence of direction from our court. The appellate court’s unease is unsurprising and justified, especially given that the appellate court’s findings took the proper analytical approach.

In a footnote the court noted that this is clearly becoming a pressurized issue.

Simply put, the analysis in McFadden not only took the wrong analytical path, it failed to recognize that the other path existed.

Had our analysis in McFadden taken into account the distinction between a prior conviction resulting from a constitutionally deficient procedure and one based on a facially unconstitutional statute, the approach we took in that case would have been different. It is important that we acknowledge that now.

Fix This Now

“Our most important duty as justices of the Illinois Supreme Court, to which all other considerations are subordinate, is to reach the correct decision under the law.” People v. Mitchell, 189 Ill. 2d 312, 339 (2000). Courts are and should be reluctant to abandon their precedent in most circumstances, but considerations of “[s]tare decisis should not preclude us from admitting our mistake” when we have made one and interpreting the law correctly, for as Justice Frankfurter once observed, “ ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ ”“[S]tare decisis is not so static a concept that it binds our hands to do justice when we have made a mistake.” Vitro v. Mihelcic, 209 Ill. 2d 76, 93 (2004).

Justice Calvo, a former member of this court, put the matter more bluntly: “When a thing is wrong, it is wrong. The longer we wait to right this wrong, the more difficult it will be to rectify the error, embedded in the case law through usage.” Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 495-96 (1990) (Calvo, J., dissenting, joined by Ward and Clark, JJ.).

McFadden Is Overruled

While we find this case distinguishable from McFadden, to the extent that this result and controlling United State’s Supreme Court precedent conflict with McFadden, McFadden is hereby overruled.

To Be Clear The Defendant In McFadden Was Wronged

McFadden is also problematic because of the line of United States Supreme Court authority on which it is based.

In upholding the use of defendant’s prior firearms conviction to establish an element of the subsequent firearms offense for which he had been convicted, our opinion in McFadden neither considered nor addressed Montgomery or the numerous earlier United States Supreme Court cases which have consistently held that convictions based on facially unconstitutional statutes are void, can be given no effect, and must be treated by the courts as if they do not exist.

No mention of Montgomery is made in the dissent either.

McFadden cannot be read as expressing any view by this court as to the implications of Montgomery for the circumstances present in that case.

In McFadden, we found that Illinois’s UUWF statute was similar in purpose, structure, and operation to the federal firearms statute at issue in Lewis, 445 U.S. 55 (1980) and that it was therefore appropriate to follow the same reasoning in construing and applying the Illinois law. In focusing on the similarity of the statutory schemes, however, we failed to take into account a fundamental distinction between the constitutional flaws afflicting the two predicate offenses.

What our decision in McFadden did not take into account is that “[t]he same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment,” for “ ‘[e]ven the use of impeccable fact finding procedures could not legitimate a verdict’ where ‘the conduct being penalized is constitutionally immune from punishment.’ ” Montgomery, 577 U.S. at ___, 136 S. Ct. at 718 (quoting United States Coin & Currency, 401 U.S. at 724). Convictions resulting from a facially unconstitutional statute fall directly within this category.

Holding

In sum, Floyd F.’s unconstitutional AUUW conviction is null and void, thus it cannot serve as a basis for finding him depraved under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)).

People v. Ingram, 2018 IL App (4th) 160099 (July). Episode 523 (Duration 6:15)

Defendant plead on a non-automatic transfer charge and now wants a do-over.

Gist

Defendant was 16 years old and in adult court on an armed robbery charge.

Facts

Defendant and another man, both of whom were armed with dangerous weapons, entered a gas station. The victim would testify that defendant used the­ weapon to injure his leg and that the men took money from the cash register. It was a gun.

Defendant personally discharged a firearm, proximately causing great bodily harm.

Adult Court

This was an automatic transfer offense. See 705 ILCS 405/5-130(1)(a).

Plea

In exchange for his guilty plea and a sentence of 18 years in prison, the State agreed to amend the charge to armed robbery with a dangerous weapon. 720 ILCS 5/18-2(a)(1) (West 2006).

Standing alone, armed robbery with a dangerous weapon could have been adjudicated in juvenile court. See 705 ILCS 405/5-130(1)(a) (West 2006).

The trial court accepted the plea agreement.

Issue

Defendant appeals, arguing his adult conviction and sentence are void because the amendment of the charging instrument from *** armed robbery with a firearm to armed robbery with a dangerous weapon extinguished criminal court jurisdiction and effectively transferred the case to juvenile court.

Likewise, defendant argues his sentence is void because the State did not request a hearing to sentence him as an adult.

Facts

The State, by oral motion, asked to amend the information. Defense counsel stated on the record that he had no objection. The State did not add an additional count or file a new information.

Instead, the prosecutor modified the original information by crossing out and adding new terms. The changes were made with the State’s handwritten modifications.

Automatic Transfers

As it existed at the time of defendant’s offense, the Juvenile Court Act of 1987 (Act) stated as follows:

Ҥ 5-130. Excluded jurisdiction.

(1)(a) The definition of delinquent minor under Section 5-120 of this Article shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with:

(i) first degree murder,
(ii) aggravated criminal sexual assault,
(iii) aggravated battery with a firearm where the minor personally discharged a firearm as defined in Section 2-15.5 of the Criminal Code of 1961,
(iv) armed robbery when the armed robbery was committed with a firearm, or
(v) aggravated vehicular hijacking when the hijacking was committed with a firearm.
These charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State.”

705 ILCS 405­/5-130(1)(a).

The Act explicitly divests the juvenile court of jurisdiction over such criminal matters.

The Act, proceeds to read, in pertinent part, as follows:

“(ii) If after trial or plea the court finds that the minor committed an offense not covered by paragraph (a) of this subsection (1), that finding shall not invalidate the verdict or the prosecution of the minor under the criminal laws of the State; however, unless the State requests a hearing for the purpose of sentencing the minor [as an adult], the Court must proceed under Sections 5-705 and 5-710 of this Article. To request a hearing, the State must file a written motion within 10 days following the entry of a finding or the return of a verdict.”

705 ILCS 405/5-130(c)(ii).

Analysis

The record clearly demonstrates, and defendant concedes, that the State originally charged defendant with armed robbery with a firearm. 720 ILCS 5/18-2(a)(4) (West 2006). This charge, under the plain language of the statute, divested the juvenile court of jurisdiction and gave exclusive jurisdiction to the trial court. 705 ILCS 405/5-130(1)(a) (West 2006).

Likewise, the subsequent modification of the information did not “divest” the trial court of jurisdiction.

The amended charge of armed robbery with a dangerous weapon arose out of the same incident from which defendant was originally charged with armed robbery with a firearm. See People v. King, 241 Ill. 2d 374, 386, 378, 948 N.E.2d 1035, 1037 (2011).

The State’s subsequent modification of the information had no legal effect on the trial court’s jurisdiction.  Accordingly, we reject defendant’s argument that the trial court lacked jurisdiction merely because the State amended the information pursuant to their plea agreement.

Assuming that his adult conviction was proper, defendant argues his sentence is void because the State was required to request a hearing to sentence him as an adult. See 705 ILCS 405/5-130(1)(c)(ii) (West 2006).

We disagree.

People v. King

See People v. King, 241 Ill. 2d 374, 378, 948 N.E.2d 1035, 1037 (2011).

The Illinois Supreme Court rejected this argument, reasoning that the “defendant was properly sentenced without a hearing” because he accepted a plea agreement with a predetermined sentence. 

In this case, defendant pleaded guilty to armed robbery with a dangerous weapon in exchange for dismissing the charge of armed robbery with a firearm. Likewise, pursuant to the plea agreement, defendant agreed to be sentenced to 18 years in prison.

Similar to King, we conclude that the State was not required to request a hearing for adult sentencing when both parties already agreed upon the exact sentence to be imposed.

Holding

We affirm the trial court’s judgment.

See Also

People v. Fort, 2017 IL 118966 (February). Episode 308 (Duration 9:57) (Second Degree Murder Is Not An Automatic Transfer Offense So What Happens When Minor is “Acquitted” of First Degree Murder After A Trial?)

...Quote From Fort

"The facts in the case at bar do not resemble those in King. The defendant in King pled guilty to and was convicted of the charged offense of attempted first degree murder, and his first degree murder charges were not dismissed until after defendant’s sentencing. Id. Unlike King, who was actually charged with attempted first degree murder, defendant was never charged with second degree murder. Thus, in this case, second degree murder is not a “charge[ ] arising out of the same incident” as the first degree murder charges. See 705 ILCS 405/5-130(1)(a) (West 2008). Moreover, in King, the parties specifically negotiated the guilty plea procedure with the intent that the minor receive an adult sentence. A negotiated guilty plea involves different concerns than those in defendant’s case. See People v. Whitfield, 217 Ill. 2d 177, 190 (2005) (when a defendant enters a negotiated guilty plea in exchange for specific benefits, both the State and the defendant must be bound by the terms of the agreement). Accordingly, King is factually distinguishable and does not support the result reached by the appellate court in the instant case." See paragraph 38.