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People v. Weathers, 2015 IL App (1st) 133264 (November 2015). Episode 116 (Duration: 3:21)

The 2012 Illinois Torture Inquiry and Relief Commission (TIRC) report confirms this defendant was tortured to confess.

Error for trial court to deny defendant leave to file a successive postconviction petition. Defendant's pro se petition clearly alleged that his confession was physically coerced by Detectives O'Brien and Halloran and that newly discovered evidence corroborated his claims.

His petition, while inartful, did allege a due process violation in the use of his allegedly coerced confession. Defendant states that the findings outlined a pattern of misconduct by Detectives Halloran and O'Brien.

Significantly, the TIRC entries contain similar allegations of abuse, including being struck by a flashlight as well as having clothing removed, left in a cold room, and denied food, all things he says they did to him as well.

Because this newly discovered evidence was not available at the time of defendant's prior petitions, he has established the requisite cause, in that an objective factor impeded his ability to raise this claim at an earlier time.

The per se rule is that use of a defendant's physically coerced confession as substantive evidence of his guilt is never harmless error. This petition gets to be filed, automatically advances to the second stage, and trial court must appoint counsel for the defendant.

People v. Johnson, 2015 IL App (4th) 130968 (November 2015). Episode 115 (Duration: 3:38)

Defendant's 3 consecutive sentences stand, but this was not a "bond-on-bond" situation".

Defendant violated probation with two new crimes of theft and criminal trespass to property. The judge sentenced him to consecutive sentences on the new theft (3 years) and the trespass (4 years).

He received 7 years for the offense he was on probation for. Then the court said all the sentences should be consecutive to protect the public. 730 ILCS 5/5-8-4(d)(8) says sentences must be mandatory when "a person charged with a felony commits a separate felony while on pretrial release or in pretrial detention in a county jail facility or county detention facility."

The judge was wrong in citing this statute because although defendant was on bond when charged with the second new offense. At the time, the charge was only a misdemeanor and did not get "upgraded" until after the arrest for the second new charge.

So he was not charged with a felony when he was arrested for the second one. It's all harmless error because the judge made a clear finding that consecutive sentences were required for the public good.

See "public good" consecutive sentencing. 730 ILCS 5/5-8-4(c)(1).

People v. Williams, 2015 IL App (1st) 131103 (November 2015). Episode 113 (Duration: 5:21)

No Batson problem when state struck 4 African American males but accepted one African American female.

Party making the challenge has the burden of raising a prima facie case of discrimination. The trial court looks at 7 factors to determine if a prima facia case has been raised.

Click here for full show notes.

People v. Guzman, 2015 IL 118749 (November 2015). Episode 110 (Duration: 5:58)

Failure of court to admonish defendant of immigration consequences does not necessarily lead to reversal.

Defendant was a lawful permanent resident and plead guilty to a gun charge without the court first admonishing him pursuant to 725 ILCS 5/113-8. Defendant's motion to withdraw his guilty plea was denied.

Padilla does not change the fact that in Illinois the required court admonishments are merel directory and not mandatory.   See Episode 077 (DUI Discovery Violation Suppression of Evidence) and Episode 055 (Speeding Ticket Dismissed).

Thus, when inadequate admonishments are given, the question of whether due process was violated turns on whether the plea was made voluntarily and intelligently.

In that analysis only the direct consequences of the plea, not the collateral consequences matter. “Direct consequences” are “those consequences affecting the defendant’s sentence and other punishment that the circuit court may impose,” and “[c]ollateral consequences” are those “effects upon the defendant that the circuit court has no authority to impose.”

Padilla deals with claims of ineffective assistance of counsel in a situation where deportation was certain. Nonetheless, defendants who did not receive section 113-8 admonishments may also have been entitled to withdraw their pleas if they establish that they have been denied “real justice” or have suffered prejudice.

See also other immigration case this month (People v. Unzueta) and previous immigration admonishment cases.

Previous Immigration Admonishment Cases:

• People v. Guzman, 2014 IL App (3d) 090464 (December 2014) (defendant was prejudiced by counsel’s failure to inform him of clear immigration consequences)
• People v. Guzman-Ruiz, 2014 IL App (3d) 120150 (March 2014) (defense counsel said deportation was unlikely, the was erroneous and prejudiced the defendant)
• People v. La Pointe, 2015 IL App (2d) 130451 (March 2015) (Padilla does not apply retroactively so no ineffectiveness here even though defendant says they never told him he could get a life sentence)
• People v. Valdez, 2015 IL App (3d) 120892 (May 2015) (counsel’s failure to advise client of immigration consequences was not cured by the judge’s admonishments)
• People v. Carranza-Lamas, 2015 IL App (2d) 140862 (August 2015) (trial counsel not ineffective for telling his client he needed to consult an immigration attorney to determine how it would affect his immigration case)
• People v. Cowart, 2015 IL App (1st) 131073 (February 2015) (courts continue to go different ways with the issue of admonishing a defendant on sex registration at the time of a plea)
• People v. Lopez, 2015 IL App (1st) 142260 (September 2015) (trial counsel failed to advise defendant of the potential effect of his plea on his status in this country)

Go to Show Notes.

People v. Castleberry, 2015 IL 116916 (November 2015). Episode 112 (Duration 6:11)

"Void Sentence Rule" is abolished; here the judge only applied one 15 year add to consecutive sentences when he should have applied it twice.

The void sentence rule stated that “A sentence which does not conform to a statutory requirement is void.” Void sentences could be attacked collaterally, directly, indirectly or at any time.

However, a voidable sentence "is one entered erroneously by a court having jurisdiction and is not subject to collateral attack.” The problem is that the voidness claims were really claiming that a court did not jurisdiction when they acted outside the law.

But circuit courts are granted their jurisdiction from the Illinois Constitution not from any particular statute. Thus, a statutory requirement or prerequisite cannot be jurisdictional, since jurisdiction is conferred on the circuit courts by our state constitution.

Because of all this and Rule 604(a), which says the state cannot appeal a sentence, the reviewing court did not have any authority to just add the additional 15 years to defendant's sentence. Also, Rule 615(b)(4) prevents the appellate court from increasing a sentence.

The State may, in appropriate circumstances, seek relief from this court via the writ of mandamus. In general, mandamus is an “ ‘extraordinary remedy to enforce, as a matter of right, “the performance of official duties by a public officer where no exercise of discretion on his part is involved.”

People v. Williams, 2015 IL 117470 (November 2015). Episode 109 (Duration: 4:33)

Certain sections of the AUUW statute criminalizing gun possession with a valid FOID remain constitutional. 

The trial court had invalidated AUUW convictions based on 720 ILCS 5/24-1.6 (24-1.6(a)(1), (a)(3)(C) and (a)(2), (a)(3)(C) of the AUUW statute, which were based on defendant’s lack of a Firearm Owner’s Identification Card.

The trial court based its ruling on a proportionate penalties argument and stayed away from Aguilar reasoning. The gist was that the same conduct was punished more harshly under AUUW than it was under the FOID section (430 ILCS 65/2(a)(1)).

Illinois Supreme Court said the conduct in the different sections is different so the proportionate penalties section is inapplicable.

REMEMBER: In Aguilar, section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute were declared unconstitutional. No other section or subsection was declared unconstitutionality.

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