Kane County Nuggets

People v. Hauad, 2016 IL App (1st) 150583 (December). Episode 284 (Duration 5:44)

The Torture Commission Report constitutes only a reassessment of evidence available to defendant before he filed his prior postconviction petitions, and thus it does not qualify as new evidence.

People v. Fernandez, 2016 IL App (1st) 141667 (December). Episode 283 (Duration 3:57)

17 years of for possession with intent to deliver reversed in this search warrant case.

People v. Gonzalez, 2016 IL App (1st) 141660 (December). Episode 282 (Duration 7:51)

Defendant not entitled to a third stage evidentiary hearing even though a notoriously corrupt detective handled the witness identifications in his case.

People v. Harris, 2016 IL App (1st) 141744 (December) & People v. Horta, 2016 IL App (2nd)140714 (December). Episode 281 (Duration 12:32)

18 year old shooter gets a de facto life sentence of 76 years which shock the moral sense of the community (according to this appellate panel). While another 18 year old receives 59 years for a heinous murder that sticks.

Defendant shot and killed one person at a gas station.

He shot another person but that person survived. Then he pointed his gun at a third person and pulled the trigger. But he had run out of bullets. Defendant was 18 years old and this appeared to be some kind of dispute between defendant and the victims.

The aggregate sentence was 76 years: 45 years of imprisonment on the murder conviction (20 years for the offense plus 25 years for the mandatory firearm enhancement), 26 years for one attempt murder (6 years plus 20 years for the mandatory firearm enhancement); and 31 years for the other attempt murder (6 years plus 25 years enhancement).

The attempted murder counts were to run concurrently with each other, but consecutively to the murder sentence.

Defendant alleges that this lengthy term is actually a “mandatory de facto life sentence,” and the interaction of these statutes prevented the trial court from exercising any discretion or taking into account his youth or rehabilitative potential. This statutory scheme, according to defendant, violates both the federal and state constitutions as applied to him. He challenges these statutes under both the eighth amendment of the federal constitution and the “proportionate penalties” clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).

The Illinois constitution provides, “[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.

This clause is generally referred to as the “proportionate penalties” clause, but the second half of the section would be better considered as its own concept: the “rehabilitation” clause.

The mandate that all criminal penalties be determined “with the objective of restoring the offender to useful citizenship” is no less a requirement than the rest of the section, and has yet to receive the scrutiny and attention it properly deserves as a distinctive component of Illinois’ constitution. Defendant may show a violation of this clause if his sentence is “cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.”

As society evolves, “so too do our concepts of elemental decency and fairness which shape the moral sense of the community.” So we must consider objective evidence and “the community’s changing standard of moral decency.”

The court concluded this was a de facto life sentence; at best, he would be released at age 89.

Interestingly, the court saw there was no Eighth Amendment violation here as illustrated by the Roper, Grahm, Miller trilogy. The Court drew a line between juveniles and adults at the age of 18 years; while it acknowledged that the line was arbitrary, it “must be drawn.”

However, the court held that this 76-year sentence violates article I, section 11 of the Illinois Constitution, with its language mandating that penalties should have “the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.

The court noted that the new statutory language after Roper, Graham, and Miller “stand for the proposition that a sentencing body must have a chance to take into account mitigating circumstances, i.e., a juvenile’s age and attendant circumstances, before sentencing the juvenile to the harshest possibility penalty.”

The new statutory scheme and the preceding case law incorporate the separation of powers doctrine and reinstate judicial discretion in juvenile sentencing. Research in neurobiology and developmental psychology has shown that the brain doesn’t finish developing until the mid-20s, far later than was previously thought. Young adults are more similar to adolescents than fully mature adults in important ways.

They are more susceptible to peer pressure, less future-oriented and more volatile in emotionally charged settings.

Further, the Illinois Supreme Court has recognized that research on juvenile maturity and brain development might also apply to young adults. Many of the concerns and policies underlying our juvenile court system apply with equal force to a person of defendant’s age.

The confluence of sentencing statutes, which the trial court was required to apply, is absolutely contrary to that constitutional objective of the rehabilitation clause.

The reviewing court was saying that his sentencing should have been similarly specific to his own circumstances, to effectuate the constitutional mandate of restoring Harris to useful citizenship.

The court said it shocks the moral sense of the community to send this young adult to prison for the remainder of his life, with no chance to rehabilitate himself into a useful member of society.

The application of these enhancements prevented the trial court from constructing a sentence that had any chance of returning Harris to society, even if the court thought that Harris was a good candidate to rehabilitate himself.

The court urged the legislature to consider the research regarding brain development in young adults who are not legally juveniles when analyzing the sentencing statutes for adults, including consecutive sentencing, truth in sentencing, and mandatory sentencing enhancements.

These statutory provisions strip judicial discretion when our criminal justice system would be better served by a case-by-case analysis in which the sentence imposed is individualized to the offender and the offense.

See the dissent who wrote that the trial court could have imposed a life sentence, but exercised its discretion to instead impose the minimum term authorized by law.

The dissent rightly argued that defendant’s stable home life is not a mitigating factor; however, that evidence, along with his educational achievements, does support the notion that he might be able to rehabilitate himself if given the opportunity. Or, in the words of our constitution, might be able to restore himself to “useful citizenship.”

The trial court is simply not at liberty to impose a lesser sentence on remand. And while I share the majority’s concern over the length of Harris’ minimum prison sentence, the remedy lies with the legislature, not in ad hoc determinations made by this court or by trial judges. The same proportionate penalties clause argument could be advanced by a 20-year-old, a 25-year-old or a 30-year-old defendant who had no prior criminal convictions.

And while a compelling argument can be made that vesting greater sentencing discretion in trial courts would result in fewer de facto life sentences for young offenders, the legislature has not chosen to do so.

Defendant was 18 years old with no juvenile record and one adult Class 4 felony for which he had received probation.

The trial established that he was not a principal but an accomplice to the murder; he did not plan it, contact the other participants, or participate in the strangulation.

The victim was tortured, beat, and bags placed over his head and tied closed. His role was only to hold a gun. One Codefendant convicted of first degree murder was sentenced to 29 years’ imprisonment. He had a serious criminal history and had been involved in a large drug distribution scheme. One flipper pleaded guilty to obstructing justice, a Class 4 felony, and had not yet been sentenced. Two other codefendants received 35 years and 40 years.

Defendant challenged his conviction and 59 year sentence.

This was some kind of vigilantism, with no evidence that the victim he had been involved in a prior kidnapping and rape of a girl. Defendant, “without hesitation,” agreed to participate in the murder. Defendant told the police that he not only pointed a gun at the victim but ordered him to get on his knees and asked him whether he would like defendant to put a bullet into his head.

Moreover, he helped to dispose of the body and accepted $1000 from the victim’s pockets as compensation for his role in the murder.

Defendant concedes that his sentence is within the statutory limits; indeed, it could easily have been much longer.

The trial court could have imposed life imprisonment, based on the jury’s finding of exceptionally brutal or heinous conduct. Even after declining this option, the court could have imposed a total of 75 years’ imprisonment—the maximum of the base range plus the mandatory 15-year add-on.

Instead, defendant received a total of 59 years’ imprisonment—24 years more than the effective minimum, but only 14 years more than what he himself requested.

The court held that the trial court’s weighing of the various factors in aggravation and mitigation did not exceed its broad discretion or that defendant’s sentence, although unquestionably severe, departed from the spirit and purpose of the law or was manifestly disproportionate to the offense.

There were several factors in aggravation that the trial court properly considered.

For one, although the court did not use the jury’s finding of exceptionally brutal or heinous conduct to sentence defendant to life, it quite reasonably considered the premeditation and extreme brutality of the victim’s torture-murder, as well as its utter gratuitousness.

Defendant attached himself to a group that planned this execution with only the flimsiest grounds to suspect the victim of any basis for their revenge.

He died not immediately but slowly (how slowly is uncertain) from strangulation or asphyxiation. And, before he died, he suffered severe external and internal wounds from blows to his head, neck, and chest, and from the application of the blowtorch to his genitalia and legs.

The seriousness of the offense has been called the most important consideration in sentencing. The crime here was premeditated, gratuitous, and sadistic to a degree that must be considered extraordinary even for a first-degree murder. The extreme heinousness of the offense was not the only aggravating factor on which the trial court properly relied. The court also considered that defendant was compensated for the offense, receiving $1000 for one evening’s work.

Defendant returns to the theme that his youth and relatively light criminal record militate against a sentence that, in effect, treated his rehabilitative potential as deserving no weight in the determination of his punishment. He concludes that, in effect, the mandatory 15-year add-on prevented the trial court from following its constitutional obligation to base his sentence not only on the seriousness of his crime but also on the objective of restoring him to useful citizenship.

The recent Supreme Court and Illinois Supreme Court precedents are of no aid to defendant.

Although he contends that the reasoning on which they are based should apply to his case, in which he was less than a year past his eighteenth birthday when he committed his offense, those opinions explicitly limit their scope to the sentencing of those who were under 18 years old at the time of their crimes.

A line must be drawn.

The age of 18 is the point where society draws the line for many purposes between childhood and adulthood.

In any event, the Court’s eighth-amendment jurisprudence would be of no help to defendant. He did not receive the harshest possible penalty for his crime, and the sentencing scheme, considered as a whole, gave the trial court the discretion to impose a prison term of as little as 35 years.

That is not a de facto life sentence.

In the Illinois precedents mandatory enhancements (including mandatory consecutive sentences) drastically limited the trial judges’ latitude in applying factors in mitigation.

And, in those cases, there was reason to believe that the mandatory enhancements frustrated the trial judges’ intentions by imposing sweeping legislative mandates that had draconian consequences and restricted or nearly neutralized the judges’ application of individualized attention to the circumstances of the particular defendants.

That is far from the situation here.

Defendant faced a minimum sentence of 20 years without the mandatory enhancement and 35 years with it. The trial court, finding numerous factors in aggravation and little in mitigation, sentenced him to 44 years’ imprisonment plus the 15-year add-on.

To the extent that he received a de facto life sentence, it was less the result of the add-on and more the result of the trial court’s exercise of its still considerable discretion. Based on its individualized assessment of defendant’s criminal conduct, character, and background, the court chose a base sentence that was 24 years more than the minimum—but 16 years less than the maximum, even discounting the available option of life imprisonment based on exceptionally brutal or heinous conduct.

These realities do not support any contention that the application of the mandatory addon resulted in a sentence that shocks the conscience of the community or is inconsistent with precedent from either the Supreme Court or our state’s courts. Defendant’s proportionate penalties claim fails.

People v. Busse, 2016 IL App (1st) 142941 (December). Episode 280 (Duration 8:27)

A paltry crime for a paltry sum does not warrant the paltry sentence of 12 years.

People v. Staple, 2016 IL App (4th) 160061 (December). Episode 279 (Duration 8:36)

Defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI.

Defendant was simultaneously charged with misdemeanor DUI and felony DUI for the exact same course of conduct.

He had both a “DT” file and a “CF” file.

He plead guilty to the misdemeanor and moved the trial court to dismiss the felony charges, claiming double jeopardy had attached when he plead to the misdemeanor.

The trial court granted defendant’s motion to dismiss.

The reviewing court reversed this decision.

The fifth amendment to the United States Constitution, made applicable to the states via the fourteenth amendment, provides, in part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. See also Ill. Const. 1970, art. I, § 10; 720 ILCS 5/3-4.

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal, 
(2) a second prosecution for the same offense following conviction, and 
(3) multiple punishments for the same offense.

However, the rules with regard to double jeopardy, however, should not be applied in a mechanical nature, especially if the situation is such that the interests the rules seek to protect are not endangered and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

Notably, double jeopardy clause did not prohibit the State from prosecuting lesser included offenses along with the more serious charges.

When a defendant pleads guilty to lesser included offenses he has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.

The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an implied acquittal which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.

There simply isn’t any of the governmental overreaching that double jeopardy is supposed to prevent.

On the other hand, ending prosecution would deny the State its right to one full and fair opportunity to convict those who have violated its laws.

In this case, it is clear defendant was aware of the pending felony charges when he pleaded guilty to the misdemeanor charges.

As the United State Supreme Court stated, a defendant should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

This case presents none of the interests double jeopardy seeks to protect.

Defendant was well aware of the pending felony charges when he pleaded guilty to the misdemeanor charges. Additionally, the State has not marshaled its resources and evidence more than once or honed its presentation of the case through a trial on the misdemeanor charges.

Accordingly, the court concluded double jeopardy does not bar the State from pursuing the felony charges that were pending at the time defendant pleaded guilty to the lesser-included misdemeanor charges.

Criminal law attorney Joshua B. Kutnick has seen some success with a motion for funds. Episode 278 (Duration 23:42)

If you're not quite sure exactly what this is then buckle down and listen up because Josh will have you winning this motion in no time.

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Not only does Joshua Kutnick walk us through the litigation steps of this type of motion, he also provided a sample motion for you to add to your own arsenal. You can download it below.

Lerma plus Kinion equals a Motion For Funds For Eyewitness Expert Fees. Add this sample motion to your library right now. Thanks Joshua!

Joshua B. Kutnick is a sole practitioner who limits his practice to the criminal law. He's been at it for 17 years and handles cases in both federal and state court. To find out more about his practice visit his website at www.kutnicklaw.com. Additionally, he is always available to answer questions at the following phone number: 1 (312) 441-0211.

Here's the thing: People v. Lerma says in some cases a criminal defendant should be allowed to call an eyewitness expert in their defense. But what if your client can't afford to pay for one? Is your client just out of luck? Not necessarily.

Maybe the state or the court can pay for it. Attorney Kutnick steps in and gives us the foundation for a Motion For Funds...

Then he circles back and illustrates how such a motion can come in handy to help hire an eyewitness expert.

There is something useful and practical here for everyone.

• 725 ILCS 5/113-3(d) - Expert Witness Fees
• People v. Kinion, 97 Ill.2d 322 (1983)
• People v. Lawson, 163 Ill.2d 187 (1994)
• In re T.W., 402 Ill. App (3d) 981 (2010)
• People v. Lerma, 2016 IL 118496 (January)
• Sample Motion For Funds
• See Also Professor Karen Daniel For More Insight On Eyewitness Expert Litigation
• See Also Real Life Eyewitness Identification Expert Professor Shari Berkowitz

✓ What's better than winning a motion to admit an eyewitness expert in your defense? Getting the State to pay for it.

✓ What every criminal law attorney needs to know about paying for an expert.

✓ WARNING: Don't just read and rely on the funds statute. It's 100% misleading and contradictory. Josh explains how the Illinois Supreme Court has come in and completely reinterpreted that section. 

✓ When 250 dollars doesn't mean $250.

✓ Do you know the 3 prongs you need to cover for a successful Motion For Funds?

✓ The secret to getting the court to pay your expert fees even though your client could afford to pay your own attorney fees. 

✓ The quickest way to a reversal is to deny the defendant the opportunity to fully defend himself. Denial of a desperately needed expert simply because you lack the funds affects this fundamental right.

✓ Establishing that an expert witness helps your case is enough to win this motion...Wrong! You're going to have to do a little more work for the money. You'll also have to establish...

✓ What you can do to help increase your odds of winning this motion. It's like "juicing" the hearing before you get started, and it completely improves your chances of getting the court to release some funds on your client's behalf (Hint: it involves a little seed money.)

✓ Practical real life examples from Joshua's practice. How he used a motion for funds to pay for two experts in the same case! One was a video expert who was allowed to examine a videotape and assess it for tampering. The other was a firearms expert. In a third successes story, Joshua petitioned the court for fees to obtain a psychologist who helped him make sense of some psychological records. 

✓ What an "opinion letter" reveals and how to use it in court. 

✓ Joshua reveals the correct approach to picking a winning case to make sure you don't lose this motion.

✓ The reason why the decision, People v. Lerma, can help you petition the court for funds even though the opinion says zilch about the court paying for a defense expert. 

✓ How the court can help you get deeper insight into your own case by agreeing to release some funds (Don't forget. Experts are also available for a consult. Think: DNA cases.)

This sample motion specifically address an eyewitness expert witness. However, this sample motion is easily adaptable to your own needs. Add it to your collection now.

Lerma plus Kinion equals a Motion For Funds For Eyewitness Expert Fees. Add this sample motion to your library right now. Thanks Joshua!

People v. Vara, 2016 IL App (2d) 140849 (December). Episode 277 (Duration 9:42)

There is a difference between grooming and solicitation charges, clever reading of the code goes nowhere.

People v. Kavanaugh, 2016 IL App (3d) 150806 (December). Episode 276 (Duration 4:49)

Trial judge reversed for rescinding this SSS; you just can't ignore the traffic accident and the stench of weed. 

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 274 (Duration 12:33)

Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.