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. Hood, People v. Cherry, People v. Reyes, and People v. Valdez.
By Kerry J. Bryson, Office of the State Appellate Defender
Terry Hood was charged with attempt murder, home invasion, and aggravated battery of a senior citizen against Robert Bishop, Jr. Prior to trial, the State sought to take Bishop’s evidence deposition due to health concerns. Present at the deposition were Assistant State’s Attorneys and defendant’s attorneys; defendant did not attend. Subsequently, the evidence deposition was admitted at defendant’s trial upon a finding that Bishop could not testify.
On appeal, defendant challenged the admission of the evidence deposition as a violation of his 6th Amendment confrontation right and Illinois Supreme Court Rule 414(e). He had not raised the issue below, but argued that it was second-prong plain error. The Appellate Court agreed, but the Supreme Court reversed.
First, the Supreme Court noted that the confrontation issue had to be analyzed under Crawford v. Washington. Under Crawford, testimonial hearsay statements are admissible only if the State establishes that (1) the declarant is unavailable to testify and trial, and (2) the defendant had a prior opportunity to cross-examine the witness. Without question, the evidence deposition was testimonial. The Court found that the State had established Bishop’s unavailability with medical testimony that he was in a nursing home and unable to care for himself, as well as evidence that he suffered from dementia and could not communicate in any meaningful way.
Likewise, defendant had a prior opportunity to cross-examine Bishop where two defense attorneys attended the deposition and conducted a full cross-examination, defendant was not barred from the deposition, and defendant had notice of the deposition but the record suggested that he chose not to attend. Thus, admission at trial of the evidence deposition did not violate Crawford.
Further, the deposition’s admission at trial did not violate Rule 414(e). That rule provides that defendant and his counsel shall have the right to confront and cross-examine any witness whose deposition is taken, and that such right may be waived in writing by defendant or defense counsel. While it was error not to have a written waiver of defendant’s right to confront, the record showed that defendant knew of the deposition and could have attended had he chosen to do so. Thus, the rule’s purpose was satisfied and there was no plain error.
Interestingly, the Court noted that Hood had not presented a separate challenge under Illinois’s confrontation clause and had not argued that Illinois’s clause provides greater protection. The Court did not say anything more on the subject, leaving open the question of whether the Court might have reached a different result under Illinois’s confrontation clause.
By Jay Wiegman, Office of the State Appellate Defender
James Cherry was convicted of armed violence predicated on aggravated battery. After his conviction, Cherry wrote a letter to the trial judge and asserted that his attorney was ineffective. After sentence was imposed, the trial court appointed counsel and conducted a hearing pursuant to People v. Krankel, 102 Ill. 2d 181 (1984). The trial court denied defendant’s request for a new trial, concluding that the defendant had failed to demonstrate sufficient prejudice to justify the granting of relief under Strickland v. Washington, 466 U.S. 668 (1984)
On appeal, Cherry argued that armed violence can not be predicated on aggravated battery, because the statute specifically excludes as a possible predicate felony certain listed offenses or “any offense that makes the possession or use of a dangerous weapon either an element of the base offense, an aggravated or enhanced version of the offense, or a mandatory sentencing factor that increases the sentencing range,” and the use of a firearm elevates aggravated battery to aggravated battery with a firearm, thus creating a firearm-enhanced version of the offense. 720 ILCS 5/33A-2 (2010); 720 ILCS 5/12-4.2 (2010). Cherry also argued that his appointed counsel effectively provided no representation at all, such that prejudice should be presumed under the standard established in United States v. Cronic, 466 U.S. 648 (1984).
The Appellate Court agreed with Cherry’s first argument, finding that aggravated battery with a firearm is a firearm-enhanced version of the base offense of aggravated battery, “so the logical conclusion is that it is specifically excluded by the statute’s most recent iteration, despite the fact that the prosecution chose a subsection of the predicate offense that does not reference a weapon.” People v. Cherry, 2014 IL App (5th) 130085, ¶ 19. The appellate court rejected the defendant’s second claim, and held that defendant’s ineffective assistance claim was governed by Strickland rather than by Cronic. The Illinois Supreme Court granted the State’s appeal of the appellate court’s conclusion that aggravated battery cannot serve as the predicate for armed violence, and the defendant cross-appealed the appellate court’s determination that appointed counsel was not ineffective at the Krankel hearing.
The Illinois Supreme Court reversed the Appellate Court’s conclusion that aggravated battery cannot serve as the predicate of armed violence in People v. Cherry, 2016 IL 118728. Writing for a unanimous Supreme Court, Justice Thomas rejected the appellate court’s determination that the possession or use of a firearm is an element of an “aggravated or enhanced version” of aggravated battery. Rather, the Court concluded that aggravated battery with a firearm is “simply one more aggravated version of battery.” Cherry, 2016 IL 118728, ¶16.
The Court then addressed the defendant’s claim that the attorney appointed to represent him at the Krankel hearing should be judged by the Cronic exception to the Strickland standard. The Court noted it had applied the Cronic standard just twice in 30 years, and that those cases (People v. Hattery, 109 Ill.2d 449 (1985) and People v. Morris, 209 Ill. 2d 137 (2004), represented extreme circumstances not present in the instant case. Refusing to apply Cronic, the Court turned to Strickland and concluded, as had the appellate court, that Cherry could not establish prejudice. The appellate court judgment regarding the defendant’s Krankel claim was
By Jay Wiegman, Office of the State Appellate Defender
The last decade has seen a significant change in the way courts approach the sentencing of juveniles. In 2005, the United States Supreme Court held the imposition of capital punishment for crimes committed by those under the age of 18 to be unconstitutional. Roper v. Simmons, 543 U.S. 551 (2005). In 2010, the Supreme Court held that it was unconstitutional to sentence juvenile offenders to life imprisonment without the possibility of parole for non-homicide offenses. Graham v. Florida, 560 U.S. 48 (2010). Two years later, the Supreme Court struck down a sentencing scheme that mandated life in prison without the possibility of parole for juvenile offenders. Miller v. Alabama, 132 S. Ct. 2455 (2012). Miller emphasized that a juvenile may not be sentenced to a mandatory, unsurvivable prison term without first considering in mitigation his youth, immaturity, and potential for rehabilitation.
Today, in a Per Curiam opinion, the Illinois Supreme Court held that “sentencing a juvenile offender to a mandatory term of years that is the functional equivalent of life without the possibility of parole constitutes cruel and unusual punishment in violation of the eighth amendment.” People v. Reyes, 2016 IL 119271, ¶9. In Reyes, the juvenile defendant was sentenced as an adult to a mandatory minimum aggregate sentence of 97 years’ imprisonment (which included consecutive terms and mandatory firearm add-ons), that mandated he remain in prison until he was at least 105 years old. The Appellate Court, Second District, affirmed the defendant’s sentence because it concluded that Miller applied only to actual sentences of life without the possibility of parole. Before the Supreme Court, the State conceded that the 97-year sentence constituted a de facto life-without-parole sentence. Because the sentencing judge was without discretion to sentence the defendant to less than this de facto life-without-parole sentence, the Illinois Supreme Court vacated Reyes’ sentence as unconstitutional pursuant to Miller. Reyes, 2016 IL 119271, ¶¶ 4, 10.
The Reyes Court then addressed the proper remedy. During the pendency of the appeal, the parties noted that the legislature had enacted a sentencing scheme (730 ILCS 5/5-4.5-105)(2015), which requires the sentencing judge to take into account several factors in mitigation when determining the appropriate sentence for juveniles. Most notably, the statute gives the trial court discretion as to whether or not the firearm enhancement should be imposed. Reyes, 2016 IL 119271, ¶11. The State and the defendant agreed that the defendant was entitled to be sentenced under this provision and that the trial court now has the discretion to not apply the firearms enhancement. As a result, the applicable mandatory minimum aggregate sentence to which the defendant is subject is 32 years. The Court therefore remanded the matter to the trial court to conduct a new sentencing hearing in accord with 730 ILCS 5/5-4.5-105)(2015).
By Kerry J. Bryson, Office of the State Appellate Defender
Josue Valdez, a citizen of the Dominican Republican and resident alien of the United States, entered a negotiated guilty plea to burglary (based upon intent to commit theft). He was sentenced to three years of probation and 4 months in the county jail. Subsequently, he sought to withdraw his plea, alleging ineffective assistance of counsel under Padilla v. Kentucky. Valdez argued that counsel had not informed him of the deportation consequences of his pleading guilty.
The Supreme Court upheld the plea. First, the Court noted that burglary is not specifically listed as a deportable offense, though it may fall within the general category of offenses known as crimes involving moral turpitude (CIMT). The Court stated, “where the face of the [immigration] statute does not succinctly, clearly, and explicitly indicate that a conviction subjects a defendant to mandatory deportation, counsel need only advise a defendant that his plea ‘may’ have immigration consequences.”
The Court went on to find that even if Padilla requires that counsel review case law to determine whether a conviction renders a defendant deportable, federal authorities doe not clearly answer the question of whether Valdez’s burglary conviction is a CIMT. Accordingly, the Court concluded that counsel had no duty to provide anything more than general advice that Valdez’s plea may have deportation consequences. Here, counsel provided no advice regarding deportation, and thus counsel’s performance was deficient.
Regardless, the Court found that defendant had not suffered prejudice because the trial court admonished defendant of potential deportation consequences twice during the plea hearing, and defendant chose to persist in his plea of guilty. Thus, the Court concluded that the deficiency in counsel’s advice was cured by the trial court’s admonishments and there was no prejudice to defendant.