Defendant was convicted, after bench trial, of Class 2 felony of delivery of less than 1 gram of heroin, and sentenced to extended term of 9 years imprisonment and 2 years mandatory supervised release. Sentence of 9 years was on lower end of 7- to 14-year extended term range, for which Defendant was eligible because of his prior Class 2 felony conviction. Court listed factors considered in imposing sentence, and court is not required to detail precisely its process for determining a sentence. Court was entitled to consider Defendant's 5 drug-related convictions in prior 6 years. (HYMAN and PIERCE, concurring.)
Defendant, a high school teacher, pled guilty to criminal sexual assault; charges alleged that he had engaged in sex with a student under age 18. Court properly denied Defendant's motion for leave to file successive postconviction petition. Defendant's claim that postconviction counsel failed to comply with Rule 651(c) does not meet either threshold requirement of the Act. Right to counsel during postconviction proceedings is entirely statutory, and defense counsel's claimed error occurred during postconviction proceedings. Appellate counsel's failure to raise claim on appeal does not mean that claim may later be raised in a successive postconviction petition. (TURNER and APPLETON, concurring.)
Record contained sufficient evidence to support jury’s guilty verdict on charge under 18 USC section 844(e) arising out of defendant’s posting on his Facebook wall that contained false threat that he and others had spearheaded “cop killing group” that had as its goal future killing of two local police officers and blowing up of local office building and courthouse. Dist. Ct. did not err in instructing jury that to act “maliciously” under section 844(e) meant “to act intentionally or with deliberate disregard of the likelihood that damage or injury will result,” and that jury could convict defendant if it concluded that defendant intentionally “conveyed false information, knowing same to be false,” since both instructions adequately stated law. Moreover, jury could properly find that defendant’s posting of threat to blow up courthouse was almost assuredly going to cause substantial harm by diverting law enforcement resources. As such, defendant’s hoax based on threat of harm properly fell within coverage of section 844(e).
(Biss, D-Skokie) provides that the following cannot be mitigating factors in a first-degree murder case nor serious provocation in a second-degree murder case: a non-violent sexual advance, nor the discovery, knowledge, or perception of a person’s sex or sexual orientation, including under circumstances in which the defendant and victim dated or had a romantic or sexual relationship. The change to first-degree murder is only relevant if the State re-enacts the death penalty. It has just been introduced.
(Hutchinson, D-Chicago Heights) provides that no person who is qualified and able to serve as a juror may be excluded from jury service in any court of this State on the basis of race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service. It does not affect any current statutory exemptions. It has just been introduced.
Dist. Ct. did not err in imposing below-guidelines, 48-month term of incarceration on charge of unlawful possession of firearm by felon, as well as imposing consecutive 6-month sentence for violation of terms of supervised release that arose out of his firearms conviction. Moreover, Ct. of Appeals granted motion by defendant’s appellate counsel to withdraw from case, after counsel indicated that only potential issue raised by defendant concerned consecutive nature of his sentence for violation of his supervised release, which lacked merit, where sentencing guidelines specifically advised that consecutive sentences should be imposed upon revocation of supervised release.
Dist. Ct. did not err in denying defendant’s habeas petition challenging his unlawful possession of firearm guilty plea on grounds that his trial counsel was ineffective for failing to file motion to suppress gun found in defendant’s car, which was blocking fast-food lane. Defendant’s plea agreement contained collateral review waiver, which potentially could not be invoked, where, as here, defendant essentially alleged that counsel was ineffective in negotiating plea agreement in light of counsel’s failure to file suppression motion. However, not every claim of ineffective assistance of counsel can overcome waiver in plea agreement, and Ct. of Appeals found that waiver should apply, where: (1) defendant failed to allege any facts suggesting that motion to suppress would have succeeded given fact that officer’s caretaking function allowed officer to determine why defendant was blocking drive-through lane then to discover that defendant was asleep at wheel in his car, where officer observed gun in plain view; and (2) defendant failed to convey what more thorough investigation by trial counsel would have produced to support any suppression motion. Defendant also failed to show that he would have gone to trial had trial counsel actually filed suppression motion.
In prosecution on wire fraud charge stemming from defendants’ scheme to defraud bank out of money loaned to alleged buyers of defendants’ properties, when said buyers misrepresented to bank that they had made certain down payments on said properties, where defendants had actually made said down payments, Dist. Ct. erred in granting govt.’s motion for imposition of $893,015 restitution order to repay bank for its losses. Although bank had incurred said losses, instant restitution order was improper, where record showed that: (1) bank had failed to conduct any inquiry regarding statements made on loan applications; and (2) bank would have discovered that none of prospective buyers could have made instant down payments or could have repaid mortgage had bank investigated instant loan applications. As such, Ct. remanded matter back for further consideration as to whether defendants should be fined in amount of restitution order so as to disgorge instant profits from defendants, but not reward bank for its reckless conduct. Ct. also ignored appellate waiver contained in plea agreement to said wire fraud charge made by one defendant, after finding that it would be unjust to enforce instant appellate waiver, where said defendant would be fully responsible for payment of restitution order to bank under circumstances where restitution order was wrongfully imposed.
Defendant was convicted, after bench trial, of 1 count of being an armed habitual criminal (AHC) and 2 counts of unlawful use or possession of a weapon by a felon (UUWF). Evidence was sufficient to show that Defendant exercised immediate and exclusive control over attic where assault rifle and ammunition were found. Court could reasonably have concluded that Defendant exercised exclusive control over attic where contraband was found, where it could be inferred that Defendant was the only person living at address who could have climbed attic stairs and accessed attic space to place weapon there. Evidence established that Defendant had constructive possession of assault rifle and ammunition recovered from attic by police. (CONNORS and HARRIS, concurring.)
Court's disqualification order, finding that attorney was disqualified from representing Defendant on the ground that attorney's father represented Defendant's girlfriend who was a witness State planned to call at trial, violated Defendant's 6th amendment right to choose his own counsel. This violation is a structural error not subject to harmless-error review, and conviction is reversed and cause remanded for retrial. Even if relationship of 2 attorneys could give rise to some potential for conflict, the interests threatened by that potential are not enough to overcome constitutional presumption in favor of Defendant's counsel of choice. Court explicitly found that neither attorney committed any actual impropriety, so mere appearance of impropriety should not be controlling. (LAVIN and PUCINSKI, concurring.)
