Kane County Nuggets

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39 published Illinois criminal law decisions were released! Click above for your fast and convenient summary.

I summarize the top 12 in this podcast. 

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What is an anticipatory search warrant? How did the cops mess this one up? Specifically, we ask whether the police had to wait for the package to be opened before arresting defendant.

See People v. Harris, 2015 IL App (1st) 132162 (06/17/2015).

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Does every DUI Discovery Violation result in suppression of evidence?

See People v. Olson, 2015 IL App (2d) 140267 (06/05/1015).

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Illinois Courts Were on Fire in May!

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Many, many decisions out this month.

Dont forget you can download summaries of the cases with links to the full cases!

The Illinis Supreme Court waisted no time citing the United States Supreme Court Decision of Heien v. North Carolina.

The debate goes on exactly what impact these cases will have on fourth amendment jurisprudence. 

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Did the judge have the right to impose a 15 year gun add-on? Appellate court says “no” but lets it slide.

See People v. Walker, 2015 IL App (1st) 130500 (05/11/2015).

This case begins with the question of whether or not the trial judge had the right to impose a 15 year gun add-on?

This was an example of what can go wrong when you try to take a brick of heroin from a supplier.

Defendant and his friend had “a sting set up”, also called a “rip”, to take a drug supplier’s stash. A shoot out occurs and the supplier ends up dead.

Defendant was quickly arrested running away from the scene. The murder weapon was recovered outside the house where the shooting took place. Defendant’s prints were on the gun and he had gunpowder residue on him.

Defendant was convicted of felony murder predicated on the robbery. He was sentenced to 27 years plus 15 years for committing the offense while armed with a firearm, for a total of 42 years.

At sentencing the prosecutor was asking for a 20 year gun add-on. However, Defendant objected and noted that the issue of whether defendant fired a gun or even possessed a gun during the robbery was never put before the jury. The judge went witht the 15 year term saying the court was statutorily required to do so.

Let’s first quickly review what exactly is the 15 year gun-on.

In Illinois, the legislators created what is commonly referred to as a “15-20-25 to Life” sentencing scheme. It applies in situations where a firearm is involved.

This gun add-on is a term of extra years that is added-on to whatever sentence is imposed by the judge. This extra sentence does not apply to every crime listed in the code but only applies to several delineated charges.

These charges include:

First Degree Murder   730 ILCS 5/5-8-1(a)(1)(d)

Attempt First Degree Murder   720 ILCS 5/8-4(c)(B)-(D)

Aggravated Battery to a Child   720 ILCS 5/12-3.05(h)

Intentional Homicide of an Unborn Child   720 ILCS 5/9-1.2(d)

Home Invasion   720 ILCS 5/19-6(c)
Predatory Criminal Sexual Assault of a Child (50-to-Life for causing GBH even without a gun)   720 ILCS 5/11-1.40(b)

Aggravated Criminal Sexual Assault (includes 10 for dangerous weapon)   720 ILCS 5/11-1.30(d)

Armed Robbery   720 ILCS 5/18-2(b)

Aggravated Vehicular Hijacking   720 ILCS 5/18-4(b)

Aggravated Kidnapping   720 ILCS 5/10-2(b)

Generally, the length of time that is added depends on how you used the firearm during the crime for which you were convicted. These additional terms are summarized best like this, yet an extra....

15 years - for possessing a firearm

20 years - for firing the firearm

25 years to life - for causing great bodily harm

This Defendant was charged with murder. The gun add-on applicable in his case is listed in the Illinois Code of Corrections under section 5-8-1(a)(1)(d)(i). That section says that when it comes to murder:

[quote box] if the person committed the offense while armed with a firearm, 15 years shall be added to the term of imprisonment imposed by the court” 730 ILCS 5/5-8-1(a)(1)(d)(i).

...but, of course, there is more to the story...

Statutes don’t exist in their own little universe. The written laws have to be considered and balanced against other laws and court decisions.

Oh, let's say, for example, something line the notice requirement.

You see, there is another section of the criminal law out there. This one is written in the Illinois Code of Criminal Procedure section 111-3(c-5). That section says that:

[quote box] "[I]f an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt." 725 ILCS 5/111-3(c-5)

This sections imposes affirmative constraints on the State before a court can actually some sentencing extensions.

Here, the law is saying that before the judge could impose the 15 years certain things had to happen.

Section 111-3(c-5) required that:

Any Additional Sentences

That Are Not Elements of the Crime

State Must Notify Defendant in Writing

Submit The Fact to the Jury

Proved Beyond a Reasonable Doubt

In this case, none of this happened.

The State gave Defendant no notice of their intent to seek a gun-add on, did not submit the fact that Defendant possessed a gun to the jury, nor was that fact proven beyond a reasonable doubt.

The appellate court, indeed found that the trial judge committed error in imposing the 15 year gun add-on.

However, the court said that reversal was not mandated because this error was harmless. Citing People v. Thurow, 203 Ill.2d 352, 369 (2003)

This can’t be what “harmless error” means? Can it?

Indeed, the Illinois Supreme Court has found that “errors involving jury instructions that omit an element of the offense may be subject to harmless-error review.” Thurow, 203 Ill.2d at 362; citing Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

The failure to instruct the jury on an element is harmless when the evidence in support of the omitted element was uncontested and overwhelming. Thurow, 203 Ill. 2d at 369.

In this case, the decision of what to do with the trial error comes down to the trial judge.

It is not an easy question we have here.

Should we want judges that are going to follow the rules and enforce the rules we know them? Or do we want a trial judge who is going to break the rules knowing darn well that harmless error will save her at the appellate level?

It is not an easy question.

This judge knew there was a constitutional error. The 15 year was a compromise. Could have gone with the 20 year add-on and the appellate court probably would have let that slide as well.

When harmless error is at play, it usually means the facts are overwhelming against the Defendant. And a trial judge may recognize an error yet, feel a strong pull towards “doing the right thing.”

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What is the criminal contempt of court maximum sentence? Contempt of court is not in the books so we have to look at the case law for the answer.

See People v. Geiger, 2015 IL App (3d) 130457 (04/17/2015) & People v. Perez-Gonzalez, 2014 IL App (2d) 120946 (06/26/2014).

What is the maximum sentence possible for a contempt of court conviction?

So I am working on a ultimate sentencing guide, checklist and index. It is basically an index that serves as a guide and checklist for Illinois sentencing.

And contempt of court came up.

It is not in the criminal code. It is a judicial thing. I get it. However, I think it is safe to say that best practices is to have it all written down so everybody knows what they are looking at.

So, I do believe it is important to document, list and make official every human activity that the State may seek to punish with imprisonment. Add criminal contempt of court to that list.

That is why I feel if a maximum sentence can be ascertained from the case law that it should be.

I feel safe in calling it for contempt of court.

What is the maximum penalty possible for contempt of court in Illinois.

I’m saying it is 10 years.

Two Cases Lead To This Answer

People v. Geiger

Defendant had already testified against two co-defendants in a double murder but refused to testify against the third guy. Said he was pleading the Fifth, then later said he just forgot the details. So, unclear why he suddenly refused to testify. Court said 10 years for this “assault” on the judicial system was not grossly disproportionate to the nature of the contemptuous act when considered in light of defendant’s previous criminal history. Originally, the sentence was 20 years but the Illinois Supreme Court reversed that in an earlier proceeding.  People v. Geiger

People v. Perez-Gonzalez

Defendant plead guilty to murder and agreed to testify against co defendants, after which the 15 year gun add-on would be vacated leaving defendant with a 20 year deal. Defendant refused to testify and was sentenced to an additional sentence of 10 years for contempt of court. Total time for defendant is now 45 years. In determining an appropriate sentence for criminal contempt, a court should consider the following factors: “(1) the extent of the willful and deliberate defiance of the court’s order, (2) the seriousness of the consequences of the contumacious behavior, (3) the necessity of effectively terminating the defendant’s defiance as required by the public interest, and (4) the importance of deterring such acts in the future.” This was a murder trial and the need for deterring others from willful contempt was great. People v. Perez-Gonzalez

I say these cases are instructive in determining the maximum penalty for contempt of court because that was the sentence in those cases and the cases involved pretty serious cases.

To be accurate, I’d probably have to say that the maximum is around 10 years.

The cases don’t actually come out and just say that they won’t allow anything over ten years.

Maximum is probably 10-ish. If a later case came by for like 12 years and there were different facts like somebody was acquitted or something then it is possible an appellate court would let it slide.

But I feel confident in saying 10 years is the maximum sentence possible for contempt of court.

Why does this question matter?

I think it is important to have well documented maximum sentence for contempt of court for the same reasons it should exist for every other crime.

We want to promote fair and even application of society's harshest penalties and prevent arbitrary enforcement.

Any just criminal system has to keep it fair. Arbitrary enforcement is the bane of fairness. Arbitrary enforcement runs counter to our goals.

When judges and prosecutors don’t have a known limit to work with, arbitrary results are the likely result.

I mean if we look at Geiger a little more closely we see that the trial judge initially went with 20 years. Yes, that was a double murder it was a serious case. But the judge seemed to fall back on his notion of an “assault” on the judicial system.

What the hell is that? Who gets to define the severity of the “assault”.

Lets have limits and a known logical way to apply discretion.

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Illinois Case Law Updates for APRIL 2015 - Fast and convenint summary or recent Illinois criminal court cases created just for you.

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Get April Case List Now!  This case list PDF download is clickable! It features a summary of the top 11 important April cases followed up with short clickable summaries of all the April cases. Get informed and up to speed on the latest case law. Click through to the court decision if you think the case is relevant to a current issue you are facing.

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