Quick takes on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases 1010 Lake Shore Association v. Deutsche Bank National Trust Company and DG Enterprises v. Cornelius. and the criminal cases People v. Carter, People v. Schweihs, People v. Thompson and People v. Espinoza.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
A condominium association won summary judgment in a lawsuit it brought against a bank in a fight over whether the bank had extinguished the association’s lien rights following purchase of the unit at a judicial foreclosure sale. Interpreting two statutes, section 9(g)(3) of the Condominium Property Act and section 15-1509(c) of the Mortgage Foreclosure Law, the Illinois Supreme Court determined that a lien for unpaid assessments by a previous owner is not fully extinguished at a judicial foreclosure and sale unless the new owner “confirms the extinguishment” of the lien by paying assessments incurred after the sale. The lien is statutorily created upon a unit owner’s failure to pay common expenses when due. Even assuming that the condominium association was included as a party to the prior foreclosure action, the bank still was required to take the additional step to confirm the extinguishment by paying post sale assessments.
The decision also may be notable for the court’s forfeiture rulings. In the trial court, the bank did not question the association’s selection of a remedy – a money judgment rather than a lien foreclosure. Accordingly, the bank forfeited this issue, and the supreme court would not consider it. By contrast, the supreme court rejected the association’s contention that the bank had forfeited a statutory construction argument that it did not raise in the trial court. Parties must preserve issues or claims for appeal, but need not limit their arguments in the supreme court to the specific arguments made in the trial or appellate courts.
By Alyssa M. Reiter, Williams, Montgomery & John Ltd.
An order issuing a tax deed was not void because of the failure to include the county clerk’s address and phone number in the publication and notices sent to the delinquent owner. Further, it did not violate due process that certified mail notices to the owner were retuned unclaimed.
Here, the petitioner purchased the delinquent real estate taxes for a piece of property. In order to obtain a tax deed after the tax sale, petitioner drafted a “notice of sale and redemption rights” and delivered it to the county clerk to give to the party in whose name the taxes were last assessed. Petitioner filled in all information required by statute except the county clerk’s address and phone number. A second “take notice” also omitted the information.
After petitioner obtained the order to issue a tax deed, the respondent/delinquent owner sought to vacate the order because of statutory defects and lack of due process. The circuit court vacated the order and the appellate court affirmed; the Supreme Court then reviewed.
The Supreme Court recognized the competing public policy concerns of the gravity of a forced sale of a home versus a desire for finality of a sale and marketability of a tax deed. Section 22-45 of the Tax Code strikes that balance by providing specific grounds for contesting a tax deed. The failure to list the county clerk’s information is not one of the enumerated grounds.
As for due process, although certified mail notices were returned unclaimed, the petitioner had taken numerous additional steps to notify respondent of all the proceedings.
By Kerry J. Bryson, Office of the State Appellate Defender
Dennis Thompson was convicted of the 1994 murder of his father and, after being found eligible for the death penalty, was sentenced to a term of life imprisonment. The defendant was 19 years old at the time of the murder.
In 2011, the defendant filed a 2-1401 petition alleging that the circuit court exceeded its jurisdiction and violated his right to due process by not appointing capital-qualified attorneys at the time of his trial and alleged various deficiencies in his trial counsels’ representation. The petition was dismissed.
On appeal, the defendant abandoned his original claims and raised a claim based on Miller v. Alabama, 132 S. Ct. 2455 (2012), arguing that his mandatory life sentence was void and could be challenged at anytime because it violated the 8th Amendment and the proportionate penalties clause of the Illinois Constitution. The appellate court held that defendant’s claim was procedurally barred because a Miller claim challenges a sentence as voidable, not void, and thus cannot be raised for the first time on appeal.
The Illinois Supreme Court agreed. The court noted that defendant’s challenge was an “as-applied” constitutional challenge, not a facial challenge, and did not fit within any of the recognized exceptions to the two-year limitations period for 2-1401 petitions: (1) the claim did not involve a voidness challenge based on lack of personal or subject matter jurisdiction; (2) the claim was not based on a facially unconstitutional statute that was void ab initio; and (3) the void sentence rule of People v. Arna, 168 Ill. 2d 107 (1995) was abolished recently in People v. Castleberry, 2015 IL 116916.
Further, because defendant’s claim was an as-applied challenge, the record supporting it must be developed first in the trial court. The defendant’s case was not controlled by recent Illinois caselaw applying Miller to mandatory life sentences imposed on minors because the defendant was 19 years old at the time of the offense and therefore not a minor. The record on appeal was not sufficiently developed to for the court to be able to consider the merits of the defendant’s argument seeking an extension of the Miller holding. The court concluded by noting that defendant was not necessarily precluded from raising his Miller challenge in the circuit court, specifically in either a successive post-conviction petition or a 2-1401 petition if he could satisfy the requirements of those procedures.
The Thompson decision provides some clarification on 2-1401 appeal limitations. It does not, however, resolve the substantive question presented by the defendant: whether Miller’s holding may yet be extended beyond its application to minors who were subject to mandatory natural life sentencing.
By Kerry J. Bryson, Office of the State Appellate Defender
The State charged Sandro Espinoza with domestic battery against “a minor, a family or household member.” At the bond hearing, the State said the victim was the defendant’s son, and the court granted a no-contact order naming the minor, D.E., as the individual the defendant was not to contact.
Subsequently, Espinoza was prepared to plea guilty and counsel requested that the charging instrument be amended to identify the complainant before a plea. The State resisted a motion to amend, contending that the complaint was not defective because the discovery identified the victim, and thus Espinoza would not be prejudiced in preparation of his defense.
The State also argued that minor victims should be provided confidentiality and not have their identities disclosed. The trial court found the charging instrument defective and granted Espinoza’s motion seeking amendment. When the State refused to amend, the complaint was dismissed as a sanction (at the State’s request).
Similarly, Angela Disera was charged with endangering the life or health of a child, “a minor, a child under the age of 18 years,” by leaving the child alone without adult supervision. Disera filed a motion for bill of particulars, noting that the police reports named five different minors.
The State filed a bill under seal, stating the fullname of the minor. Disera subsequently sought dismissal of the charge because the State had not amended the charging instrument to identify the minor. The circuit court granted dismissal.
Espinoza’s and Disera’s cases both arose in Will County and were consolidated on appeal. The appellate court majority found that the charging instruments did not contain any information suggesting the victims’ identities and thus were inadequate. Because the State had declined to cure the defects, dismissal was proper. The dissenting justice would have found that the omission of the victims’ identifying information did not render the complaints defective because the discovery provided the necessary information.
The Supreme Court affirmed the appellate court majority. The Court first rejected the State’s argument that the charging instruments strictly complied with 725 ILCS 5/111-3. While neither section 111-3 nor the statutory offense included the name of the victim as an element, the Court noted that it is “well established” that the identity of the alleged victim must be stated (if known) and must be proved as alleged. This requirement is founded upon the protection against double jeopardy. The Court declined to overrule the case law holding that the victim’s identity is an essential allegation required to be included in a charging instrument.
The Court further cited a recent amendment to section 111-3, effective 1/1/14, noting that where the victim is alleged to have been the subject of an alleged sexual offense, the charge may identify the victim “by name, initials, or description.” The Court noted this amendment reflected the legislature’s intent to permit alternative means of identification. The Court was not persuaded that minor victims of nonsexual offenses should be afforded greater privacy protections than those provided to victims of illegal sexual acts.
The Court went on to reject the State’s argument that omission of the victims’ names were formal defects under section 111-5 and argued that dismissal was improper because the defendants suffered no prejudice. Here, because defendants raised their challenges prior to trial, prejudice was irrelevant. Dismissal was a proper remedy for failure to strictly comply.
The State may use alternative means of identifying an alleged victim in a charging instrument, but may not forego identification entirely. Here, the State declined the opportunity to amend the charging instruments to comply with section 111-3, and the dismissals were upheld.
By Jay Wiegman, Office of the State Appellate Defender
In People v. Carter, 2105 IL 117709, the Illinois Supreme Court considered whether the trial judge’s sua sponte dismissal on the merits of Kelvin Carter’s §2-1401 petition for relief from judgment was premature, thus requiring remand, as had been ordered by the Appellate Court in this State Appeal.
Following a bench trial, Carter was convicted of first degree murder. The circuit court initially imposed a 30-year term, but immediately amended its determination upon realizing that a 25-year add-on was mandated by statute.
Thus, the court imposed a 20-year sentence, to which the add-on was applied, for a total sentence of 45 years. The defendant's direct appeal was unsuccessful, as was his post-conviction petition.
Ten years after his conviction, the defendant filed a motion to vacate judgment, which the circuit court treated as a petition filed pursuant to section 2-1401 of the Code of Civil Procedure, and dismissed on its merits.
On appeal, the defendant argued that the circuit court's ruling was premature because the defendant had not properly served the State with the petition, given that his notice indicated only that he had mailed the petition, but did not indicate that he had done so by either certified or registered mail, as required by Supreme Court Rule 105. The Appellate Court agreed, determining that People v. Vincent, 226 Ill.2d 1 (2007), and People v. Laugharn, 233 Ill.2d 318 (2009), read together, suggest that proper dismissal of a 2-1401 petition cannot be achieved without proper service upon the State.
A unanimous Supreme Court reversed. Writing for a unanimous Court, Justice Karmeier stated that Laugharn recognized that the 30-day response period set forth in SCR 105 was for the State's benefit. The Court then determined that there had been no showing that the service was deficient.
The proof of service attached to the petition indicates that the defendant placed it in the mail, and the Appellate Court was wrong to assume that the failure to state that it was sent by either registered or certified mail affirmatively proved that it was not. Although the Court "encourage[d]" circuit courts to ascertain and note of record the date the State was properly served, and to time any sua sponte rulings on pending petitions accordingly, the Court concluded that "any section 2-1401 petitioner who seeks to use, on appeal, his own error, by way of allegedly defective service, in an effort to gain reversal of a circuit court's sua sponte dismissal of his or her petition on the merits, must affirmatively demonstrate the error via proceedings of record in the circuit court."
Left for another day is the question of whether inmates in correctional facilities have the means to comply with the service requirements of 105(b) by registering or certifying their mail.
By Jay Wiegman, Office of the State Appellate Defender
In People v. Schwiehs, 2015 IL 117789, the Illinois Supreme Court considered whether aggravated unlawful use of a weapon for possession of a firearm without a FOID card, which is a Class 4 felony under 720 ILCS 5/24-1.6(a)(1), (a)(3)(C), violates the proportionate penalties clause, given that, under 430 ILCS 65/2(a)(1), the offense of possession of a firearm without a FOID card is a Class A misdemeanor.
Schweihs was charged with, among other things, two counts of aggravated unlawful use of a weapon (AUUW), one premised on the carrying or concealment of a handgun in a motor vehicle when the defendant was not on his own land and did not have a current FOID card, and the other on the carrying or concealment of an uncased, loaded and immediately accessible firearm in a car. Following People v. Aguilar, 2013 IL 112116, the trial court granted the defendant's motion to dismiss the latter charge. The circuit court granted the defendant's motion to dismiss the former charge after determining that the substantive elements of the AUUW offense for which he was indicted were identical to the substantive elements of a violation of the FOID card Act, but that the punishment for the AUUW offense was greater than that for the FOID card violation. The Supreme Court the State leave to appeal as a matter of right.
A unanimous Court rejected the argument that the two offenses have identical elements. Echoing its recent decision in People v. WIlliams,
2015 IL 117470, the Court noted that conviction of AUUW requires proof that the defendant knowingly carried on his person or in any vehicle, outside the home, a firearm without having been issued a valid FOID card.
Conversely, to prove a violation of the FOID card Act, the State need only prove possession of a firearm without a FOID card. A comparison of the statutes clearly demonstrates that the AUUW statute requires proof of an additional location element that is not required by the FOID card Act. The offenses are therefore not identical and do not present a proportional penalties violation.
Shortly after Williams, the Court in Mosley,2015 IL 115872, clarified that the location element contained in section 24-1.6(a)(a) of the AUUW statute is constitutional and enforceable when combined with section (a)(3)(C), and is severable from the provision found unconstitutional in Aguilar. The defendant conceded that Mosley eliminated the viability of the Equal Protection argument that had been the basis for the circuit court's additional declaration that (a)(3)(C) violated the Equal Protection guarantees of the United States and Illinois Constitutions.