The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, April 15, 2021

Our panel of leading appellate attorneys reviews the five Illinois Supreme Court opinions handed down Thursday, April 15.

In People v. Wise, the court held that the state failed to prove that the defendant possessed a gun “on or about his person.” In People v. Johnson, the court resolved the question of whether an individual’s standing to file a post-conviction petition under the Post-Conviction Hearing Act is a proper consideration at the first stage of proceedings under the Act or whether a determination of standing is more appropriately made at the second stage of proceedings. In People v. Bass, the Supreme Court affirmed the appellate court’s decision to reverse a defendant’s conviction and remand for a new trial after the defendant argued that his motion to suppress should have been granted because police unlawfully extended the duration of his traffic stop when they conducted a name check.

In People v. Palmer, the Supreme Court considered whether the legislature intended section 2-702(g)(3) of the Code of Civil Procedure to require a petitioner seeking a certificate of innocence to prove that he or she was innocent of the offense only as it was originally charged or innocent of every conceivable theory of criminal liability for that offense. In In re Br. M. and Bo. M. v Wendy M., the Supreme Court considered whether the appellate court erred in reversing the trial court’s decision to terminate a woman’s parental rights on the grounds that her privately retained attorney at several hearings on a neglect petition had a per se conflict of interest because the attorney was previously appointed as guardian ad litem for one of her children and appeared at three hearings on an earlier neglect petition.

People v. Wise

By Kerry J. Bryson, Office of the State Appellate Defender

Following a vehicle stop on I-74 in Henry County, defendant Charles Wise was charged with several offenses and, pertinent to the issue on appeal, was convicted of unlawful possession of a weapon. The evidence in support of that conviction was that Wise was driving a 2005 Dodge Caravan, with two passengers—one in the middle row of seats, and one in the back row—which was stopped for speeding. When the police searched the vehicle (due to a “strong odor of burnt cannabis”), a .357 Derringer was discovered concealed inside a glove on the third-row seat, near one of the passengers. An officer testified that the firearm was five to ten feet behind Wise, out of his reach. The officer also said Wise admitted that he knew the firearm was in the vehicle and that it belonged to a friend who was not in the van at the time of the traffic stop. Wise testified and denied stating that he knew the gun was in the van. The gun’s owner testified that he had borrowed the van from Wise’s brother a few weeks before this traffic stop and had inadvertently left the gun in the van when he returned it.

On appeal, Wise argued that the state failed to prove beyond a reasonable doubt that the gun in the backseat of the van was “on or about his person” as required by the unlawful possession of a weapon statute, 720 ILCS 5/24-1.1(a). The appellate court agreed with Wise and reversed his conviction. Today, the Illinois Supreme Court affirmed the decision of the appellate court.

The Supreme Court held that the “on or about his person” language of the statute prohibits both actual (“on”) and constructive (“about”) possession of a firearm. It was undisputed that Wise did not have actual possession where the gun was in the backseat of the minivan Wise was driving. The question, then, was whether he had constructive possession. That is, did Wise have knowledge of the presence of the firearm and did Wise exercise immediate and exclusive control over the area where it was found.

Viewing the evidence in the light most favorable to the prosecution, as a reviewing court must when considering the sufficiency of the evidence to convict, the court held that the state failed to prove that Wise possessed the gun “on or about his person.” An individual’s status as the driver of a vehicle does not put him into possession of everything found within the passenger area when there are other passengers who may be the ones in possession of contraband. Here, even if Wise knew the gun was in the van, it was out of his reach and there was no evidence he ever actually possessed it.

Justice M. Burke authored a dissent, which was joined by Justice Garman. Noting his agreement with the majority’s conclusion that constructive may be actual or constructive under the “on or about his person” language of the statute, Justice Burke explained that he would have upheld Wise’s conviction here on the basis of constructive possession. In support, Justice Burke pointed to evidence that Wise admitted knowing the gun was in the van and had been driving the van over the course of several days, from Iowa to Kentucky and back.

People v. Johnson

By Kerry J. Bryson, Office of the State Appellate Defender

In this case, the Illinois Supreme Court resolved the question of whether an individual’s standing to file a post-conviction petition under the Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., is a proper consideration at the first stage of proceedings under the Act or whether a determination of standing is more appropriately made at the second stage of proceedings, where a defendant has the right to the assistance of counsel.

Section 122-1 provides that “[a]ny person imprisoned in the penitentiary” may initiate proceedings under the Act by filing a post-conviction petition. And, Section 122-2.1 of the Act provides that a petition can be summarily dismissed at the first stage of post-conviction review where the court finds it frivolous and patently without merit.

Here, Recardo Johnson filed a post-conviction petition challenging his conviction of unlawful restraint. By the time he filed his petition, Johnson had discharged his sentence for that offense. However, he was currently imprisoned for failing to register as required by the Child Murderer and Violent Offender Against Youth Registration Act (VOYRA), 730 ILCS 154/1. His registration requirement was a result of his unlawful restraint conviction, based on the age of the victim of that offense. In his petition, Johnson alleged, among other things, that when he pled guilty to unlawful restraint, the age of the victim was not stated in court, he was not advised by the court of his obligation to register under VOYRA, and counsel was ineffective for not informing him about VOYRA’s application.

The trial court summarily dismissed Johnson’s petition on the basis that he lacked standing to seek post-conviction relief from the unlawful restraint conviction, and the appellate court agreed.

While standing is ordinarily an affirmative defense, the legislature has expressly authorized summary dismissal of post-conviction petitions under the Act’s procedural framework. Although the Act does not use the term “standing,” it does specifically limit its availability to individuals imprisoned in the penitentiary. And it is well-established that the petitioner must be imprisoned on the challenged conviction, not simply imprisoned for any conviction, to proceed under the Act.

Accordingly, the Supreme Court held that standing is more like res judicata and forfeiture, which involve conclusions of law and are appropriately considered at the first stage of proceedings. Where a petitioner clearly lacks standing, the petition is necessarily frivolous and patently without merit, allowing for summary dismissal. If, on the other hand, a petitioner’s standing is unclear, the petition may be advanced for further consideration.

In affirming the summary dismissal of Johnson’s petition, the court rejected the argument that the interrelatedness of his underlying unlawful restraint conviction and current VOYRA failure-to-register conviction conferred standing. While actual incarceration is not always required under the “imprisoned in the penitentiary” language of the Act, Johnson’s imprisonment here was the result of collateral consequence of his original conviction, not a direct consequence, and thus did not confer standing for Johnson to challenge that original conviction.

Justice Carter dissented, concluding that the Act does not permit summary dismissal on standing grounds. He would have held that standing, as an affirmative defense, is more appropriately raised by the state during second-stage proceedings on a petition. Justice Carter noted that even if a petition arguably lacks standing, its claims are not necessarily meritless such that it can be deemed “frivolous and patently without merit” for purposes of summary dismissal. 

People v. Bass 2021 IL 125434

By Jay Wiegman, Office of the State Appellate Defender

Cordell Bass was one of a number of passengers in a van that was pulled over for running a red light in Chicago. Officers ran a name check on Bass and learned that an investigative alert—which asserted the existence of probable cause for an arrest—had been issued by the Chicago Police Department two weeks earlier. The defendant was arrested and made incriminating statements to investigators. After his motion to suppress those statements was denied, the matter proceeded to a bench trial, and the defendant was found guilty of criminal sexual assault.

On appeal, the defendant argued that his motion to suppress should have been granted because the officers unlawfully extended the duration of the stop when they conducted a name check on Bass, and because an investigative alert, standing alone, cannot justify a warrantless arrest. After engaging in a lengthy analysis of investigative alerts, the lockstep doctrine, and the text, history and tradition of the Illinois Constitution, the majority of the  Appellate Court, First District, concluded that article I, section 6, of the Illinois Constitution differs in meaning from the fourth amendment, that this provision of the Illinois Constitution affords greater protections than does the fourth amendment, and that arrests based solely on investigative alerts, even when supported by probable cause, are unconstitutional under the Illinois Constitution. The Appellate Court also found, for the sake of completeness, that the state failed to meet its burden of proving that the traffic stop was not unlawfully extended by running the name check on the defendant. Bass’ conviction was reversed, and the matter was remanded for a new trial. The Illinois Supreme Court granted the state leave to appeal.

In a 5-2 decision, the Illinois Supreme Court affirmed the appellate court’s decision to reverse the defendant’s conviction and remand for a new trial. Writing for the majority, Justice Garman noted that Bass made out a prima facie case that the stop was unconstitutional because his name check was unrelated to resolving the red-light violation or to safety concerns. The state’s evidence was too sparse to establish that the stop was not unreasonably extended by the name check.

Having determined to reverse the defendant’s conviction and remand the matter for a new trial, the majority declined to analyze the lockstep doctrine and its application to warrants or investigatory alerts. Nor did it consider the constitutionality of investigative alerts. Rather, the majority vacated the appellate court as to these issues after finding that the appellate court “rendered an advisory opinion and improperly reached a constitutional issue when there was a nonconstitutional basis for supporting its judgment.”

Concurring in part and dissenting in part, Chief Justice Anne M. Burke agreed that the traffic stop was unlawfully extended in violation of the fourth amendment, but disagreed with the majority’s decision to vacate the appellate court’s holding that defendant’s arrest violated article I, section 6 of the Illinois Constitution. The Chief Justice pointed to several cases establishing that where a reviewing court provides two fully developed, alternative holdings, each of which is sufficient to support the judgment, neither is advisory or dictum. The Chief Justice also disputed the notion that this constitutional issue need not be reached because there were purportedly nonconstitutional grounds to support the majority’s holding: “The majority has not pointed to any nonconstitutional issue or ruling that the appellate court overlooked or on which its judgment could rest.

Justice Neville also concurred in part and dissented in part. Justice Neville disagreed with the majority’s use of constitutional avoidance to vacate the appellate court’s holding that the defendant’s arrest was unconstitutional under the warrant clause of the Illinois Constitution. Noting that the use of investigative alerts has had a disparate impact on Chicago’s African American and Latinx communities, Justice Neville observed that the last resort rule can, in certain circumstances, serve to improperly abdicate the court’s duty to counterbalance the more political branches when the Constitution requires it.

People v. Palmer

By Kerry J. Bryson, Office of the State Appellate Defender

Charles Palmer was convicted of the 1998 murder of William Helmbacher, who was found beaten to death in his apartment the night after he reported being the victim of a burglary. Palmer was implicated in the burglary and murder by his cousin, Ray Taylor, after Taylor’s fingerprints were found on a discarded bag of the victim’s possessions. Palmer consistently denied any involvement.

In 2016, after obtaining forensic testing of fingernail scrapings and hairs recovered from the victim’s hands, Palmer filed a successive post-conviction petition. The testing had revealed DNA profiles of the victim and another contributor, but not Palmer. The state conceded that the new evidence warranted a new trial, and ultimately moved to dismiss the charges against Palmer.

Palmer subsequently filed a petition for a certificate of innocence under 735 ILCS 5/2-702. He alleged that the new DNA evidence conclusively established that he was not involved in the murder. The state disagreed. Part of the state’s argument was that the forensic evidence did not refute an argument that Palmer could be guilty as an accomplice or a participant in felony murder. Palmer argued that the state could not change its theory of guilt in the certificate-of-innocence proceedings. Ultimately, the court rejected Palmer’s arguments, concluded that the state was not limited to arguing only the theory charged at trial, and denied the petition for certificate of innocence.

The appellate court affirmed. The court held that Palmer had to prove by a preponderance of the evidence that he was neither the principal (as originally prosecuted) or an accomplice because “in the eyes of the law” they are “one and the same.”

The Supreme Court disagreed with the lower courts. Section 2-702(g) sets forth the elements a petitioner must prove to obtain a certificate of innocence, and section (3) provides that one of those elements is that the petitioner “is innocent of the offenses charged in the indictment or information.” The court agreed with Palmer that the plain language of that subsection, specifically referencing the charging document, requires that the court look to the specific factual content of the charges that were brought against the defendant.

The state, on the other hand, argued that because accountability is not a separate offense, and is not required to be alleged in the charging instrument, consideration of whether a defendant has proved himself innocent of the offenses charged should not be limited to the specific language of the indictment or information. The court rejected that argument, noting that because the state chose to proceed on the theory that Palmer was the principal offender, not an accomplice, the record is undeveloped as to any potential theory of accountability and any defense thereto. Requiring a defendant to now disprove a theory of guilt that was not prosecuted would be unreasonable. Because the state did not dispute Palmer’s argument that he was innocent of being the principal offender, the court concluded that a certificate of innocence should issue.

To provide guidance to the lower courts for future proceedings under Section 2-702, the court went on to address the parties’ arguments on the subject of judicial estoppel. Specifically, Palmer asserted that the state should be judicially estopped from proceeding on a theory of accountability in the certificate of innocence proceedings where it had proceeded only on the theory that Palmer was the principal offender at his trial. The state agreed that the elements of judicial estoppel had been met, but argued that the DNA results constituted new evidence justifying a change in position. The court rejected the state’s argument. The state possessed the forensic evidence all along but had simply opted not to test it. The delayed testing did not render the evidence “new” for purposes of judicial estoppel.

Justice M. Burke authored a special concurrence, joined by Justices Garman and Overstreet, agreeing with the majority as to the application of judicial estoppel but disagreeing with the majority’s interpretation of Section 2-702(g)(3). The special concurrence concluded that the plain meaning of subsection (g)(3) requires a petitioner to prove his or her innocence of the offense as either the principal or as an accomplice. Accountability is not a separate offense and is not required to be included in the charging document, and subsection (g)(3) refers only to the “offense” and not the specific “acts or omissions” at issue. However, the doctrine of judicial estoppel prevents the State from switching its theory from principal to accomplice during certificate of innocence proceedings. Thus, the special concurrence agreed with the majority that the certificate of innocence should issue, albeit based on different reasoning.

In re Br. M. and Bo. M. v Wendy M., 2021 IL 125969

By Michael T. Reagan, Law Office of Michael T. Reagan

Br. M. and Bo. M are Wendy's daughter and son. Wendy had a very long history of substance abuse problems and incarceration. The care of the children gave rise to this series of shelter care, adjudicatory, and dispositional hearings, on multiple petitions alleging neglect, injurious environments, and unfitness. Ultimately, a petition was filed to terminate Wendy's parental rights. In the very first proceeding, an assistant public defender was appointed as guardian ad litem for Br. M. Setting the stage for this opinion, that same attorney later was privately retained by Wendy to represent her in the termination of parental rights proceeding, without remark or comment. 

The circuit court terminated Wendy's parental rights. A divided appellate court reversed, holding that a per se conflict of interest existed because Wendy's attorney had served as Br.'s GAL before she served as Wendy's attorney. Wendy had not raised a conflict question in the circuit court, but the appellate court took it up on the ground that forfeiture is a limitation on the parties, but not so on the court. The dissent in the appellate court maintained that a per se conflict exists only when a contemporaneous relationship made undivided loyalty difficult. 

The Supreme Court, itself divided, reversed the appellate court, holding that a per se conflict did not exist, and that Wendy had not asserted below the existence of an actual conflict. Justice Theis' opinion for the majority traces the statutory origin and scope of the right to counsel under the Juvenile Court Act. Even though that right is statutory, not constitutional, it still implies a right to effective assistance. An aspect of effective assistance is that it be free of conflict. The court identified the three situations in which per se conflicts in criminal cases have been found to exist.  

It is at that point where the differences between the majority and the dissent of Chief Justice Anne M. Burke, joined by Justice Neville, arose. The majority said that the appellate majority's articulation of the rationale for finding a per se conflict was "the justification for the per se conflict rule, as opposed to the rule itself.” The majority stated that the court recognizes only three situations in which a per se conflict will be found to exist, and that "that is a closed set."

In contrast, the dissent states its view that those three situations "are not the per se conflict rule itself but a distillation of the circumstances that will give rise to a per se conflict." The dissent noted that this case is the first occasion for the Supreme Court to consider whether the criminal law rules on per se conflicts could be extended to these proceedings under the Juvenile Court Act. The dissent argues that a direct mapping onto juvenile cases is a poor fit. Further, the itemization of conflicts in the criminal context does not foreclose the recognition of additional per se conflicts in the Juvenile Court Act setting.

That issue then gave rise to another point of difference: Is the minor a "victim" within the meaning of the criminal articulation of the conflict rule, or only a "subject of the proceeding," as the majority held.  

In finding that a per se conflict did not exist, and thus reversing, the court stated that Br. is now more than 14 years old and has spent most of her life in foster care. Reversal here would send things back five years. "Stability and finality" are important considerations. Though never stated, those jurisprudential statements, while certainly sufficient to stand on their own, might also reflect emanations from other Supreme Court cases involving minors in which delays and the lack of a stay have created the possibilities of problems in the lives of children.

On a procedural note, the opinion states that while the proposition that forfeiture is not a limitation on the court "remains true, the exception to forfeiture principles that it provides is narrow." That exception obtained here.

Posted on April 16, 2021 by Rhys Saunders
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