Court denied Defendant's motion to vacate his voluntary dismissal of his postconviction petition. Appellate court is without jurisdiction to hear Defendant's appeal of that denial, as notice of appeal was not timely filed. Trial court lost jurisdiction over matter 30 days after it denied motion to vacate, and Defendant's appeal was not timely filed, as it was not filed within 30 days after that denial.(CUNNINGHAM and CONNORS, concurring.)
Dist. Ct. did not err in imposing as part of sentence on charge of illegal possession of firearm three-year term of supervised release that included term requiring defendant to allow probation officer to make visits at home or elsewhere. Ct. rejected argument that he was entitled to remand due to Dist. Ct.’s failure to articulate separate section 3553(a) analysis to explain its imposition of term of supervision, where Dist. Ct. had provided said analysis with respect to its imposition of term of incarceration. Moreover, Dist. Ct. was not required to orally pronounce each term of supervised release at sentencing hearing, where it had previously informed defendant in writing of its proposed conditions of supervised release and gave explanation for each condition, and where it incorporated said conditions by reference during its oral pronouncement at sentencing hearing. Also, Dist. Ct. gave adequate explanation for imposition of home visit condition, where Dist. Ct. expressed concern that defendant had prior difficulty in complying with conditions of supervised release, and that defendant posed high risk of recidivism.
Dist. Ct. did not err in sentencing defendants to 24-month term of incarceration plus two-year term of supervised release on tax fraud charge, even though sentence was based in part on two-level enhancement for defendants’ use of sophisticated means under section 2T1.1(b)(2) of USSG, arising out of defendants' fabrication of nine 1099-OID forms to support their false claims in tax return. While defendants argued that no enhancement should have applied, since their conduct did not involve concealment beyond that which was inherent in tax fraud itself, instant enhancement was proper, where defendants’ manufacture of nine 1099-OID forms went beyond basic tax fraud and took place only after six months of research and planning. Ct. rejected defendants’ challenge on vagueness grounds to terms of supervised release calling for them to seek employment, to refrain from incurring new credit charges or to inform court of any material change in economic circumstances that might affect their ability to pay restitution. Remand, though, was required on condition of supervised release calling for defendant to give third-parties notice of risk associated with her criminal record since said condition was too vague.
Defendant was entitled to new trial on charge of illegal reentry into U.S. after having been deported, where Dist. Ct. improperly denied defendant’s motion to have Dist. Ct. recuse himself under 28 USC section 455(a). Record showed that Dist. Ct. judge had previously served as District Counsel for Immigration and Naturalization Service (INS) at time defendant had been deported, and reasonable, well-informed observer could question Dist. Ct.’s impartiality in adjudicating instant charged offense, especially where: (1) INS had successfully obtained defendant's removal; (2) Dist. Ct, judge had control over his office’s decision to pursue defendant’s removal; and (3) defendant has pegged his defense in charged offense on his collateral attack against his removal order.
Defendant, age 18 at time of offenses, was convicted, after bench trial, of concurrent 14-year terms each for armed robbery and aggravated vehicular hijacking, and additional concurrent 5-year term for aggravated unlawful restraint. Prior to trial, court had already accepted Defendant's plea and sentenced Defendant pursuant to negotiated plea agreement between Defendant and State. Without first vacating plea, court directed parties to proceed to trial. After bench trial, Defendant was convicted of more offenses and received a higher sentence. There was no written by Defendant and no Rule 604(d) certificate filed by defense counsel to withdraw guilty plea, and no formal decision by court to vacate earlier plea. No one called into question truth of plea. Thus, conviction and sentence vacated on one count; and convictions on 2 counts affirmed, but concurrent sentences reduced. (LAMPKIN and BURKE, concurring.)
Defendant was convicted, after jury trial, of aggravated criminal sexual assault and aggravated kidnapping. Defendant told victim he was taking her to dinner and movie, but then induced victim, who was mentally challenged, to move from her home to the train, or from train to abandoned house, where he raped her. Evidence established beyond a reasonable doubt that Defendant committed aggravated kidnapping. Court erred in giving instruction on aggravated kidnapping. Defendant was charged under inducement theory, but jury was given instruction predicated on actual secret confinement.Jury instructions were missing essential element of offense charged.(GORDON and LAMPKIN, concurring.)
Defendant was convicted, after jury trial, of 1 count of second degree murder and 3 counts of aggravated battery. Defendant was involved in road rage incident with victim, who suffered broken skull in fall onto pavement, after Defendant punched him in face. Victim died from injuries 3 months later. Evidence was insufficient to prove knowledge element of second degree murder charge. Court properly excluded Defendant's request to admit at trial evidence of statement that victim made at group counseling as to his prior road rage incident.(O'BRIEN and McDADE, concurring.)
Defendant was convicted, after jury trial, of burglary and possession of burglary tools. Defendant unequivocally invoked his right to self-representation and court abused its discretion when it denied his request with sole reasoning, thought without any delineation, that his request was a delay tactic. Record does not support court's finding that request was made to delay trial. As Defendant did not request a continuance, his request to proceed pro se was timely.(GORDON and BURKE, concurring.)
Defendant was convicted, after bench trial, of delivery of a controlled substance, less than one gram of heroin, within 1000 feet of a school, and lesser-included offense of delivery of a controlled substance. Record is devoid of evidence showing that distance between real property comprising high school and actual location in alley where delivery took place is 1000 feet or less. No evidence describes where in alley transaction occurred, and no evidence showing where investigator began his measurement. Presentation of evidence in form of stipulation does not remedy stipulation's evidentiary shortcomings. Thus, State failed to prove beyond a reasonable doubt that Defendant was guilty of delivery within 1000 feet of a school.(ROCHFORD and DELORT, concurring.)
Defendant, then age 17, was indicted on 6 counts of aggravated unlawful use of a weapon (AUUW) for events involving 2 separate firearms. Evidence at bench trial established that Defendant robbed 3 different victims at gunpoint within a 24-hour period. Defendant may seek to vacate his prior 2002 conviction for AUUW under the void ab initio doctrine based on Supreme Court's Aguilar decision. However, that remedy would not extinguish requirement that Defendant clear his felon status before obtaining a firearm. Thus, his prior conviction properly served as proof of predicate felony conviction for UUW by a felon. The UUW by a felon statute does not require State to prove pedicate offense at trial. Proscription under that statute applies to any person who has been convicted of a felony, and is not limited to only those persons whose prior felony convictions are not later subject to vacatur. Court's imposition of concurrent 29-year prison terms for armed robbery convictions is below the maximum sentences permissible, and no sentencing reduction or remand is necessary.(GARMAN, FREEMAN, THOMAS, and KARMEIER, concurring; KILBRIDE and BURKE, concurring in part and dissenting in part.)
