Criminal Law

(Court opinion corrected 4/8/16.) Defendant was charged with multiple offenses, including aggravated vehicular hijacking while armed with a firearm and armed robbery while armed with a firearm, for accosting a man who was parking his vehicle in his garage, taking it from him. Plain language of Sections 18-2(a)(1) and 18-4(a)(3) of Code of Criminal Procedure explicitly excludes possession or use of a firearm.  Thus, a violation of Sections of Code for offenses committed with firearms and those Sections for offenses committed with weapons other than firearms are mutually exclusive. Although Defendant was acquitted of the charged firearm offenses, he stands convicted of and sentenced for uncharged offenses he did not commit. Improper convictions and sentences are corrected via remedial application of plain error.Convicting a defendant of an uncharged offense that is not a lesser-included of offense of a charged offense violates a defendant's due process right to notice of the charges against him.Appellate court properly reduced degree of convictions to lesser-included offenses of vehicular hijacking and robbery and remanded for resentencing. (GARMAN, FREEMAN, THOMAS, KILBRIDE, BURKE, and THEIS, concurring.)

(Court opinion corrected 4/8/16.) Court properly denied Defendant's motion to withdraw his guilty plea.In light of thorough discussions that took place at Rule 402 conference prior to court accepting Defendant's guilty plea, records shows that Defendant made his plea knowingly and voluntarily.  Court admonished Defendant on nature of charges against him, applicable sentences, his right to plead not guilty, and in pleading guilty his waiver of right to jury trial and to confront witnesses. Defendant had previously filed pro se motion for substitution of judge, but never ruled on motion. During 402 conference, court did not inform Defendant that substitution of judge issue would remain relevant only if he rejected the plea recommendation and elected to have trial.However, Defendant failed to show prejudice by inadequate admonishment.(CUNNINGHAM and CONNORS, concurring.)

Defendant was not subjected to improper double enhancement where his conviction for delivery of a controlled substance was only used once, as a predicate felony, to support his conviction as an armed habitual criminal. Defendant was originally charged as being an armed habitual criminal and the 2 predicate offenses (delivery of a controlled substance and UUWF) were used only once each as element of armed habitual criminal offense.  No harsher sentence was imposed, and severity of offense was never elevated. The armed habitual criminal statute is not unconstitutional where statute is rationally related to public interest.(CUNNINGHAM and CONNORS, concurring.)

(Court opinion corrected 4/7/16.) Defendant was convicted, after jury trial, of 2 counts of predatory criminal sexual assault of a child.Defendant then filed pro se posttrial motion claiming that his privately retained counsel had provided him ineffective assistance, and Defendant explicitly requested new counsel, and court was informed that Defendant lacked funds to hire private counsel and needs service of public defender.  Court erred in failing to conduct adequate Krankel hearing, by failing to conduct any interchange with Defendant. In every case, court must conduct some type of inquiry into underlying factual basis, if any, of a Defendant's pro se posttrial claim of ineffective assistance of counsel. Krankel hearing is required even when a defendant is represented by private counsel. (TURNER and APPLETON, concurring.)

Defendant was convicted, after jury trial, of first-degree murder, and sentenced to 50 years.Defendant filed Section 2-1401 petition for relief from judgment. Proof of service says that it was mailed from Stateville Correctional Center, to be mailed to clerk of circuit court, but says nothing about serving petition on State. Thus, there was no legally effective service, and the 30-day period has not begun to run.No basis in record to reverse court's sua sponte dismissal of petition. Defendant did not affirmatively demonstrate error by proceedings of record, and he never asked court to reconsider its decision on ground that he had not yet served the State. (TURNER and STEIGMANN, concurring.)

(Court opinion corrected 4/7/16.) Defendant, then age 17, when a front-seat passenger with 3 other gang members, shot and killed 1 person, and injured another, when they allegedly used a sign disrespecting their gang. Jury convicted Defendant of first degree murder and aggravated battery with a firearm. Court sentenced Defendant to total 78 years. Per U.S. Supreme Court decision, state courts must give 2012 Miller v. Alabama U.S. Supreme Court decision, which bars life without parole for all but the rarest juvenile offender, effect in collateral proceedings as it is a substantive rule. Courts must consider a juvenile's special characteristics even when exercising discretion.Sentence is not likely to deter anyone, as deterrence is diminished in juvenile sentencing. Court failed to consider characteristics of Defendant's youth through lens of Miller decision. (MASON and PUCINSKI, concurring.)