(Stadelman, D-Rockford; Wallace, D-Rockford) increases the threshold amount for damage to property that is used to enhance a misdemeanor to a felony or to enhance it to a higher class of felony. Currently, it must exceed $300; this bill requires that it must exceed $500. Effective January 1, 2017.
Defendant was entitled to new sentencing hearing on drug distribution charge, where Dist. Ct. imposed within-guidelines, 84-month term of incarceration after making inappropriate and irrelevant comments about urban decay, social unrest, changing nature of defendant’s neighborhood, and connection between Milwaukee’s 1967 riots and recent protests in Baltimore. Said comments made it impossible for Ct. of Appeals to determine whether said sentence was imposed for legitimate reasons.
Dist. Ct. did not err in sentencing defendant to within-guidelines, 46-month term of incarceration on wire fraud and money laundering charges that stemmed from scheme in which defendant, after filing for bankruptcy, induced investor to wire him over $600,000 for purposes of making movie, but then spent 90 % of money on personal and luxury items. While defendant argued that Dist. Ct. did not sufficiently consider his mitigation evidence that included fact that he had pleaded guilty and had paid victim $400,000 in partial satisfaction of victim’s loss, Dist. Ct. had adequately considered and discussed said mitigation, as well as various section 3553(a) factors. Moreover, Dist. Ct. could properly discount instant $400,000 payment, which was actually paid by defendant’s mother, since said payment was not voluntary, but rather was result of prior court order in civil lawsuit directing defendant to pay victim $1 million. Also, record supported Dist. Ct.’s finding that defendant had never intended to make movie.
Dist. Ct. did not err in imposing 327-month term of incarceration on drug trafficking charges, even though Dist. Ct. had previously imposed 276-month term of incarceration for said offenses at first sentencing hearing, which had been vacated and remanded due to errors occurring in imposition of certain terms of supervised release. Basis for increase of sentence was: (1) Dist. Ct.’s belief that within guidelines, 327-month sentence was appropriate at first sentencing proceeding, but Dist. Ct. was persuaded to reduce said sentence due to defendant’s argument that he would likely face consecutive sentence arising out of revocation of supervised release that he was serving at time of instant offense; and (2) by time re-sentencing had occurred, defendant had received concurrent sentence in revocation of his supervised release. Ct. rejected defendant’s argument that Dist. Ct. could not look to outcome of revocation proceeding when determining length of instant sentence. Ct. also rejected defendant’s claim that Dist. Ct. should have recused himself under 28 USC section 455(b)(3) based upon Dist. Ct.’s prior service as Assistant U.S. Attorney, since Dist. Ct. had already been on bench at time of defendant’s indictment.
Defendant was convicted, after jury trial, of first degree murder. Defendant received ineffective assistance of counsel when defense counsel failed to submit accomplice witness jury instruction. Evidence at trial and reasonable inferences that can be drawn from evidence establish probable cause that Defendant acted as an accomplice. Accomplice witness never separated himself from criminal activity and by hi own admission he participated in it. The grant of use immunity to witness supports his role as accomplice. No viable strategy for counsel's failure to submit accomplice witness instruction. of his role as accomplice.Defendant was prejudiced by failure to submit instruction, as jury should have been instructed that it should carefully scrutinize witness' testimony in light of his role as accomplice.(McDADE and WRIGHT, concurring.)
Defendant was charged with 2 counts of predatory criminal sexual assault of a child. Indictment alleged sexual penetration. Court erred in denying Defendant's motion for forensic testing of blood and tapings from 2 pairs of underwear each of which was admitted as evidence at trial and had thus presumably remained within possession and control of State. Chain of custody requirement of Section 116-3 does not apply to evidence prior to it being taken into custody. State introduced it as evidence at trial and used it to procure a conviction, and State cannot now argue that evidence is too tainted to be considered. As no physical evidence against Defendant was ever produced at trial, requested testing has potential to produce new evidence materially relevant to Defendant's assertion of actual innocence, even if results may not completely exonerate Defendant. (O'BRIEN and HOLDRIDGE, concurring.)
(Court opinion corrected 7/18/16.) Defendant was convicted, after bench trial, of 5 counts of aggravated criminal sexual assault and 1 count of aggravated kidnapping, and sentenced to total 100 years. Court properly dismissed Defendant's successive postconviction petition at 2nd stage. There was no reasonable probability that, but for counsel's allegedly unprofessional errors, the result of the proceeding would have been different. After considering Defendant's affidavit, and assuming that all affiants would testify in accord with affidavits and would all be found credible, defendant did not suffer prejudice from his trial counsel's alleged failure to call these affiants at trial. (REYES and LAMPKIN, concurring.)
Record contained sufficient evidence to support Dist. Ct.’s finding that defendant’s counsel had not rendered ineffective assistance of counsel prior to defendant pleading guilty to charge of aiding and abetting marriage fraud in violation of 18 USC section 1546(a), even though defendant asserted that: (1) trial counsel failed to warn him that said guilty plea would certainly result in his deportation; and (2) had he known of true deportation consequences, he would not have pleaded guilty. Trial counsel was not ineffective since record showed that counsel told defendant that he would not likely have valid defense to any deportation proceeding that would inevitable follow his guilty plea to instant marriage fraud charge. As such, defendant had full knowledge of risk of deportation following his guilty to plea. Moreover, instant guilty plea resulted in favorable dismissal of mortgage fraud charge that also placed defendant at separate risk of deportation.
Defendant was entitled to reconsideration of his habeas petition that challenged his 30-year sentence on Indiana firearm charge, where defendant contended that his trial counsel was ineffective for failing to raise legal issue regarding impropriety of his sentence. Record showed that Dist. Ct., which had dismissed instant habeas petition, was also judge that imposed defendant’s sentence in state court. As such, instant denial of defendant’s habeas petition raised issue under 28 USC section 455(a) as to whether Dist. Ct. could be impartial when assessing validity of her own sentencing decision, under circumstances where original sentence was imposed in state court, and habeas petition was resolved in federal court. Ct. also overruled Balistrieri, 779 F.2d 1191, that had found that issues under section 455(a) could only be raised by filing mandamus petition.