Quick takes on Thursday's Illinois Supreme Court Criminal opinions
Our panel of leading appellate attorneys review Thursday's top Illinois Supreme Court Criminal opinions in People v. Hernandez, People v. Cotto and People v. Grant.
By Jay Wiegman, Office of the State Appellate Defender
In People v. Hernandez, 2016 IL 118672, the Illinois Supreme Court built upon its recent decision in People v. Ligon, 2016 118023, and determined that the elements of armed robbery are not identical to the elements of armed violence. Because armed robbery does not have the same elements as the lesser Class 2 offense of armed violence with a Category III weapon, which carried a lesser penalty, the Class X sentence for armed robbery imposed upon Hernandez did not violate the proportionate penalties clause of the Illinois Constitution.
Article I, section 11, of the Illinois Constitution provides 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. Analysis of a proportionate penalties challenge focuses on whether the legislature has set the sentence in accord with the seriousness of the offense. If the exact same elements result in different penalties, then one of those penalties has not been set in accordance with the seriousness of the crime.
In Hernandez, the defendant entered the residence of an elderly couple and -- using heavy metal shears, or tinsnips, that belonged to the couple to force them to open a safe -- took money and jewelry from them. After he was convicted and ultimately sentenced to two 40-year terms , the defendant filed a post-conviction petition. In it, he argued that the elements of armed robbery premised on the use of a "dangerous weapon, a bludgeon" are identical to the elements of armed violence, which requires proof that the defendant committed a qualifying felony while armed with a Category III weapon (which category includes a bludgeon). The circuit court granted the defendant a new sentencing hearing, after stating that the sentencing scheme for armed robbery is facially unconstitutional because it provides disproportionate penalties to armed violence with a Category III weapon.
The State appealed directly to the Supreme Court.
Writing for a unanimous Supreme Court, Justice Karmeier noted Ligon, which was decided earlier this year, and other cases which have established that the common-law definition of "dangerous weapon" found in the armed robbery statute is broader than the definition of "dangerous weapon" that is found in the armed violence statute. While the tin snips used by Hernandez qualify as a dangerous weapon under common-law because they are a tool that can be used to strike a victim, they do not qualify as a Category III "bludgeon," as that term is defined in the armed violence statute. As a consequence, there was no violation of the proportionate penalties clause under the identical elements test.
Nor was the State judicially estopped from asserting that the armed robbery statute and section 33A-2 of the armed violence statute do not have identical elements. While the State took the factual position at trial that the tin snips were actually used as a dangerous weapon (as opposed to being a dangerous weapon in fact), the State's argument in opposition to the defendant's post-conviction petition was a legal argument. Because the equitable doctrine of judicial estoppel pertains to factually inconsistent positions in separate proceedings, the State's position in the Supreme Court was not estopped by its arguments in the trial court.
By Kerry J. Bryson, Office of the State Appellate Defender
In 2008, Jesus Cotto was convicted of armed robbery and, due to his prior convictions, was sentenced as a habitual criminal to life imprisonment.
Trial evidence established that Cotto approached three minors while they were walking home from school, grabbed one of them, and forcefully took jewelry from one of them while displaying a gun. Cotto admitted taking the items but contended he did not have a gun.
In his postconviction petition, filed by privately retained counsel in 2011, Cotto alleged ineffective assistance of trial and appellate counsel on various grounds and asserted that he was denied due process when the trial court failed to explain his right to substitution of judge. The petition was advanced to the second stage, and the State filed a motion to dismiss arguing that the petition was untimely and failed to include any allegation that the untimely filing was not due to defendant’s culpable negligence and that defendant’s substantive claims were procedurally barred, unsupported, and failed to make a substantial showing of a constitutional violation. Defense counsel filed a response, explaining the petition’s untimeliness. Ultimately, the court allowed the State’s motion to dismiss without referencing the timeliness issue.
On appeal, Cotto argued that post-conviction counsel did not provide him with reasonable assistance because he failed to contest the State’s assertion that the petition was untimely. The appellate court rejected the argument, relying on another appellate court decision finding that the “reasonable assistance” standard does not apply to privately retained post-conviction counsel and stating that, even if it did, post-conviction counsel provided reasonable assistance here.
Recognizing a split among the districts on the question of whether privately retained post-conviction counsel is subject to the reasonable assistance standard, the Court resolved the issue in favor of holding all post-conviction counsel - retained and appointed - to the same standard (accepting the State’s concession on this point).
The Court went on to conclude that the reasonable assistance standard had been met by retained counsel in this matter, however, and affirmed the dismissal of defendant’s post-conviction petition.
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
In 2002, respondent James Grant was committed to the Department of Corrections under the Sexually Dangerous Persons Act. In 2012, he filed an application in the circuit court of Johnson County, seeking a determination that he was no longer sexually dangerous. This is known as a recovery proceeding. The trial court directed the Department of Corrections to prepare a socio-psychiatric report in accordance with the Act. That evaluation was prepared by a psychiatrist, a psychologist, and a licensed clinical social worker. The report indicated that the respondent had not made much progress, but also opined that he was at low risk to reoffend. The evaluators did not believe that his continued confinement was necessary, and they recommended his release.
The State disagreed with the report’s conclusions, objected to portions of it, and sought the court’s permission to call its own independent expert, who was not hired by the Department of Corrections. The respondent challenged this by arguing that this was not provided for by statute, a proposition with which the appellate and supreme courts would later agree. The trial court allowed the State’s psychiatrist to testify, and she opined that the respondent had not recovered and should not be released. This was a jury proceeding, and the jury agreed with her. The respondent appealed.
In the appellate court, respondent Grant was awarded a new trial on the theory that statute does not contemplate the appointment of an independent psychiatric expert for the State in a recovery proceeding. The supreme court agreed, noting that when the legislature wants to grant the State the right to an independent psychiatric evaluation of a respondent, it knows how to do so, and that, if this was in fact the intention of the legislature, it needs to say so clearly.
Respondent had raised other issues that the appellate court did not reach in ordering a new trial. The supreme court said that the appellate court should address those remaining issues insofar as they are likely to occur on retrial. The cause was remanded to the appellate court.