Criminal Law

Defendant was convicted, after stipulated bench trial, of possession of cannabis. Court properly denied Defendant's motion to suppress. Time officer spent writing citation was not unreasonable; court found that officer was working at a "normal pace" and was not "dragging his feet" just to wait for drug detection dog. Activities unrelated to mission of the stop did not prolong the stop, and did not cause the stop to extend beyond the point at which other officer's detection of drugs provided probable cause to believe that vehicle contained drugs.(HUTCHINSON and BIRKETT, concurring.)

Defendant pled guilty to criminal sexual abuse, and was sentenced to 1 year conditional discharge (CD). Defendant failed to appear in court 1 year after he was sentenced, as sentencing order required; court then extended CD for 1 month and required Defendant to appear in 1 month. Defendant again failed to appear. About 8 years later, Defendant turned himself in on arrest warrant issued for his failure to appear. Even though there was an active warrant for his arrest and State's petition to revoke CD was unresolved, because Defendant was no longer serving any part of his sentence when he filed his postconviction petition, he lacked standing to bring his claims under Post-Conviction Hearing Act.(ZENOFF and BURKE, concurring.)

Defendant was convicted, after jury trial, of 4 counts of attempted 1st degree murder and sentenced to 4 concurrent terms of 40 years. Defendant's new counsel raised claim of ineffective assistance of counsel for the first time in petition for rehearing, and thus it is waived. Although counsel was deficient for failing to develop a plain error argument, Defendant was not prejudiced by this deficiency, as court did not err in sentencing him. Aggravating circumstances included that Defendant fired multiple times into an occupied vehicle in school neighborhood at dismissal time. Court did not impose a longer sentence due to Defendant's unproven gang membership, as court only remarked that Defendant was "involved in the gangs."(PUCINSKI and HYMAN, concurring.)

Defendant was convicted, after jury trial, of 1^st degree murder in shooting death. Court erred in dismissing Defendant’s successive postconviction petition at 2d stage. Defendant’s postconviction counsel rendered unreasonable assistance by withdrawing a supporting affidavit over Defendant’s objection, and substituted Defendant’s self-serving affidavit, but did not stand on petition or move to withdraw. Defense counsel’s actions were affirmative actions that damages Defendant’s claims. Defendant’s claim of actual innocence could not stand without the supporting affidavit. (BURKE and GORDON, concurring.)

Defendant was convicted, after jury trial, of 9 counts of aggravated criminal sexual assault and sentenced to 10 years. In closing argument, State did not make repeated attempts to lure jury to enter into an empathetic identification with the victim, but made only an isolated remark, asking jury to put themselves in the victim’s shoes. Prosecutor’s comment that “she was raped, and everyone in this room knows it” was invited by defense counsel’s observation in closing argument. Court did not abuse its discretion in sentencing.   (McBRIDE and ELLIS, concurring.)

Defendant was convicted, after jury trial, of 4 counts of predatory criminal sexual assault of a child, for sexual offenses against his daughter, age 9. Court erred in precluding Defendant’s former girlfriend from testifying about victim’s statements to Defendant after her phone call with her mother, but error does not rise to level of plain error. Court erred in excluding that testimony as hearsay, as it was victim’s belief in an invitation from her mother to stay with her, rather than the existence of that invitation, that was relevant. Evidence was not critical to defense that victim fabricated crimes out of anger at Defendant’s refusing to let her visit her mother, as it would not have dramatically changed trial. (BURKE, concurring; McLAREN, specially concurring.)

Court properly denied Defendant’s motion to dismiss remaining counts of felony disorderly conduct on double-jeopardy grounds. Because Defendant’s claim arose in a remanded case, not a case with a final judgment, applicable preclusion doctrine is law-of-the-case, not res judicata or collateral estoppel. Defendant could not raise her claim on second remand. Nothing prevented Defendant from raising her claim earlier that prosecutor intentionally overreached by goading her into moving for mistrial, and thus claim is barred by law-of-the-case doctrine. No evidence that anyone tried to goad Defendant to move for a mistrial. (JORGENSEN and SPENCE, concurring.)

Defendant, age 19 at time of offense, was convicted, after jury trial, of home invasion and robbery, and sentenced to consecutive terms of 18 years and 5 years. Trial judge did not display antagonism and bias toward defense counsel, but was ruling on State’s objections and advising defense counsel how to properly question Defendant on direct examination. Judge permitted defense counsel to properly elicit testimony of Defendant without making comments about the testimony.  Court’s finding that Defendant caused great bodily harm was not an element of the offense but was a sentencing element, and finding was supported by the record. No abuse of discretion in sentence, and no ineffective assistance of counsel. (McBRIDE and ELLIS, concurring.)

(Court opinion corrected 12/19/17.) Defendant was convicted, after bench trial, of residential burglary and aggravated battery.  Fines and fees order should be modified. Court was not required to have appointed new counsel at conclusion of new preliminary Krankel inquiry. Counsel’s performance was objectively reasonable. Given that very little information was available to counsel about woman who Defendant stated led her to residence in question, her flight from scene, and her incentives not to be found, counsel’s decision not to investigate further was not unreasonable. (BURKE and ELLIS, concurring.)

Defendant was convicted, after jury trial, of 1^st degree murder and attempted 1^st degree murder and sentenced to total 58 years. Cumulative effect of multiple trial errors resulted in a pervasive pattern of unfair prejudice that deprived Defendant of a fair trial.  In opening statement, State improperly sought to pit good, in form of victim, against evil, in form of Defendant; court allowed witness, who made 911 call after seeing stabbing victim in the street, to cry hysterically throughout her testimony, resulting in some on jury crying, without any attempt to cure prejudice; and court allowed highly inflammatory 911 recording to be played during that witness’ testimony. Defendant’s fitness hearing did not satisfy his due process rights, as court did not make independent inquiry as to Defendant’s fitness.  (GORDON and ELLIS, concurring.)