Criminal Law

For 6 years prior to 2009, attorney had represented Defendant on several criminal matters. On date when criminal complaint for murder was filed against Defendant, attorney filed appearance for Defendant. More than 1 1/2 years later, State sought to disqualify attorney from representing Defendant, arguing that attorney's father represented Defendant's girlfriend, who was a witness State planned to call at trial. Court erred in granting State's motion for disqualification. Nothing in State's theory of disqualification warranted depriving Defendant of his chosen counsel. Reversed and remanded for new trial. Even if relationship of attorney and his father, who shared office space and acted as cocounsel in various criminal matters,could give rise to some potential for conflict, interests threatened by that potential for conflict are not enough to overcome the constitutional presumption in favor of Defendant's counsel of choice.(LAVIN and PUCINSKI, concurring.)

Court erred in finding that proceeds of a winning lottery ticket were not forfeitable under Illinois Drug Asset Forfeiture Procedure Act. Proceeds of winning ticket should be forfeitable because they are traceable to Defendant's drug dealing, as trial court found that Defendant bought a scratch-off lottery ticket with proceeds derived from his drug dealing. State is seizing proceeds of lottery winnings by a judicial forfeiture order, not by assignment from Defendant's live-in girlfriend, who testified that she bought ticket and who filled out claim form for winnings. (KNECHT and TURNER, concurring.)

Defendant was convicted, after bench trial, of unlawful possession of cannabis with intent to deliver, and of unlawful possession of heroin. Remanded with instructions to apply presentence incarceration credit against Defendant's fines and modify judgment order to conform with court's oral pronouncement that Defendant was guilty of lesser-included offense of unlawful possession of heroin rather than charged offense of unlawful possession of heroin with intent to deliver. A DNA analysis fee had been assessed against Defendant after his felony conviction in a prior case. Thus, DNA analysis fee imposed here was unauthorized. Although trial court had jurisdiction to enter written judgment order reflecting pronounced sentence, it did not have jurisdiction to modify it by imposing $2,000 drug assessment fine after filing of Defendant's notice of appeal. (CARTER and HOLDRIDGE, concurring.)

(Court opinion corrected 9/27/16.) Circuit clerk improperly imposed fines on Defendant. Thus, fines were void. There should be no remand, as appellate court is without authority to remand for trial court to impose mandatory fines, which trial court should have done at sentencing. (CARTER and LYTTON, concurring.)

Court properly dismissed postconviction petition, at 2nd stage, of Defendant who was convicted of first-degree murder. Defendant failed to meet his burden to make substantial showing that State violated his due process rights by using alleged perjured testimony as to deal to obtain witness's testimony against Defendant. Claim is conclusory, and affidavit offered with petition is based only on hearsay, which is insufficient to warrant relief. Defendant failed to explain how postconviction counsel should have "properly shaped" Defendant's pro se claims, or why further amendments were necessary to adequately present claims. Thus, no ineffective assistance of counsel shown.(GORDON and BURKE, concurring.)

Defendant was convicted of unlawful participation in a contract with his government employer without the employer's informed consent. Defendant was manager of IT department of Forest Preserve District, and 3 years later, while still working as IT manager, became "independent sales agent" for company selling equipment and services for wide area networks, including phone service and Internet access, but never disclosed that employment to the District. District later entered into contract with that company, and Defendant received commissions from that sale. Unlawful participation does not require an "affirmative act" of deceit as opposed to "mere silence", and does not required that State plead and prove that a unit of local government sustained a concrete pecuniary loss as a result of a defendant's conduct. Sufficient evidence for court to conclude that Defendant acted with intent to defraud the District. Unit of prosecution under Section 33E-17 iof Criminal Code is the contract itself, regardless of how many commission payments Defendant indirectly received. (McLAREN and ZENOFF, concurring.)  

Defendant was convicted, after bench trial, of mob action and sentenced to 2 1/2 years. State failed to prove beyond a reasonable doubt that Defendant and his girlfriend acted together to disturb the public peace through the use of force or violence. The simultaneous arrival of Defendant and his girlfriend, and the "almost instantaneous": acts of the girlfriend attempting to enter the home, and Defendant striking another man (who is the father of 2 children of Defendant's girlfriend), and the verbal altercation with that man on one side and Defendant and his girlfriend on the other,  without more, does not satisfy the "acting together" element of mob action. Evidence presented at trial does not support inference that girlfriends' attempted entry into home was forceful and without permission of man or his girlfriend. (HUITCHINSON and BIRKETT, concurring.)