Criminal Law

Defendant entered negotiated please of guilty to aggravated criminal sexual abuse and 2 counts of aggravated child pornography. Defendant alleged that court erred in denying his claim that his counsel was ineffective for failing to file the requested motion to withdraw his guilty plea. Court's factual finding that Defendant did not specifically instruct his counsel to file a motion to withdraw his guilty plea was not against weight of evidence. Evidence at hearing did not raise a reasonable probability that a motion to withdraw his pleas would have been granted. The evidence on all charges to which Defendant pleaded guilty was overwhelming, and Defendant never suggested a meritorious defense to any charge.  (ZENOFF and JORGENSEN, concurring.)

Defendant entered into negotiated plea agreement, agreeing to plead guilty to 2 counts of criminal sexual assault of his live-in girlfriend's 13-year-old daughter, in return for State's recommendation of a 4-year sentence on each count, to be served consecutively, and State's agreement to nol-pros the remaining charges. Defendant's factual allegations do not establish an arguable reasonable probability that he would have decided to plead not guilty and insist on a trial, absent counsel's alleged errors in failing to discover and present the defense (that he was not a "family member" as he resided with girlfriend and victim for only 2 months) to 3 of the 9 alternative charges. Defendant failed to allege facts arguably showing that he was prejudiced by his attorney's alleged deficient advice. Court did not err in summarily dismissing postconviction petition as frivolous and patently without merit. (A. BURKE, GARMAN, THEIS, NEVILLE, M. BURKE, and OVERSTREET, concurring.)

Defendant was convicted, after jury trial, of identity theft for the knowingly unauthorized use of another person's credit card information to purchase cigarettes. The venue provision pertaining to identify theft, which allows for proper venue in the county in which the victim resides, is constitutional. A victim's possessory interest in his or her personal identifying information is located where the victim resides. The part of the offense that involves misappropriation of the personal information can be said to be committed in the county where the victim lives because the information is said to be "located" there. (A. BURKE, GARMAN, NEVILLE, OVERSTREET, and CARTER.)

(Modified upon denial of rehearing 5/20/21.) Defendant was convicted, after jury trial, of 1 count of attempted 1st degree murder, 2 counts of aggravated criminal sexual assault, and 1 counts of aggravated battery, all arising from an attack on his then-girlfriend whom he had dated for 2 months. Evidence was insufficient to establish beyond a reasonable doubt that Defendant intended to kill victim. Although he possessed a deadly weapon (a box cutter), he did not use it in a deadly fashion although he had opportunity to do so. Although he threatened to kill victim numerous times, that was more consistent with an intent to torture or terrorize victim into confessing that she cheated on him, and victim's injuries were extensive but not life-threatening. No indication that the presence of nonjurors in the courtroom while jury reviewed jail calls chilled or inhibited jury deliberations; and court informed jurors that neither the court nor the parties could interact with them while they reviewed the audio evidence, and told jurors that they could listen to the recordings as many times as they wanted and that it would adjust volume at their request.  As attempted 1st degree murder conviction is vacated, sentence for aggravated battery must run consecutively to sentences on the aggravated criminal assault convictions. Remanded for resentencing. (MARTIN, concurring; GORDON, concurring in part and dissenting in part.)

Defendant, age 26 at time of offense (and who was not a gang member and had no criminal history), was convicted, after bench trial, of 1st degree murder, on an accountability theory, of 2 victims in a 2012 gang-motivated drive-by shooting. Evidence showed that Defendant drove the vehicle from which the shooter shot the victims. Defendant introduced evidence that he operated a freelance tax service, and that the shooter was a customer who asked him for a ride and that Defendant was unaware of his intentions to shoot the victims. There was no direct evidence of Defendant's intent to assist shooter in the drive-by shooting. Defendant stopped the vehicle at the shooter's request, and there is no evidence that Defendant knew of shooter's intentions or even that he had a gun. There was no evidence that Defendant participated in shooter's plan to shoot the victims before or during the offense. State's evidence was so unsatisfactory as to justify a reasonable doubt of Defendant's guilt. (HOWSE and BURKE, concurring.)

Defendant, age 24 at time of offense, was convicted, after jury trial, of aggravated kidnapping and aggravated criminal sexual assault. Defendant told victim he was taking her to dinner and movie, but then induced victim, who was developmentally delayed, to move from her home to the train, or from train to abandoned house, where he raped her. Court sentenced him to a statutorily mandated term of natural life for the sexual assault conviction based on prior conviction for criminal sexual assault, and a concurrent term of 20 years for the kidnapping conviction. Defendant did not show how his mental illnesses rendered him less culpable for sexually assaulting victim than a typical adult sex offender. Evidence showed Defendant's premeditated conduct in perpetrating the offense. The existence of Defendant's mental illnesses is not an inherently mitigating factor such that application of the mandatory life sentence violates proportionate penalties clause. (HOWSE and ELLIS, concurring.)

Defendant was convicted, after 2015 jury trial, of delivery of a controlled substance. Defendant claimed that court should have granted his motion for mistrial because jury was not properly sworn before the start of trial. Court, after denying motion for mistrial, belatedly swore in the jury immediately after the trial judge noticed the error and prior to start of deliberations. Failure to administer oath to jury was clear error but not plain error. Defendant's objection was not timely made, as it was raised after State presented all its evidence, rather than when the error occurred which was before opening statement, when court could have taken corrective action.  No basis to conclude that the verdict resulted from the later sworn jury. Error was not so serious that it affected the fairness of the trial and challenged integrity of judicial process. Evidence was more than sufficient to support conviction. (FITZGERALD SMITH and LAVIN, concurring.)