Criminal Law

Defense counsel failed to substantially comply with Rule 651(c), and he failed to provide reasonable level of assistance at second stage postconviction proceedings. Defendant’s fitness to stand trial was a constitutional issue that was strongly considered, should have been fully explored, and possibly should have been raised in amended postconviction petition. Defense counsel never fully explored issue, and never raised issue. Defendant’s fitness at time of trial needed to be reviewed in order for defense counsel to properly prepare amended postconviction petition. (JORGENSEN and HUDSON, concurring.)

Defendant was convicted of 3 counts of solicitation of murder for hire and sentenced to 40 years. Among his alleged intended victims were trial judge and ASA who prosecuted him for Aggravated DUI. Court within its discretion in denying Defendant's motion to appoint special prosecutor, as Defendant offered no reason other than that one alleged intended victim was an ASA. That ASA was not involved in, and her testimony was not needed for, prosecution of Defendant for these offenses.(JORGENSEN and SPENCE, concurring.)

Defendant was convicted of armed violence and 2 counts of aggravated battery.  The aggravated battery convictions were merged into the armed-violence conviction, and Defendant was sentenced to 22 years.  Court properly dismissed sua sponte Defendant's pro se "motion", which was in effect a Section 2-1401 petition for relief from judgment. Deficient service invalidates a sua sponte dismissal as premature, but burden is on Defendant to affirmatively show that the State was not given proper notice. Defendant failed to affirmatively establish that service was deficient. (SCHOSTOCK and BIRKETT, concurring.)

Defendant, age 20 at time of offense, was convicted, after bench trial, of possession of heroin with intent to deliver and sentenced as Class X offender due to his prior felony convictions. Section 5-4.5-95(b) of Unified Code of Corrections is ambiguous as to whether eligibility for Class X sentencing depends on whether Defendant is age 21 as of date of commission, charge, or conviction.  Thus, statute is interpreted under rule of lenity in favor of Defendant, who was charged with offense on day prior to his 21st birthday, and he is thus ineligible for Class X sentencing. (PUCINSKI, concurring; LAVIN, dissenting.)

Defendant, then age 68, was convicted of theft of $1.8 million from his employer/business partner's business properties, and sentenced to 12 years.  Loan applications on partner's residence were irrelevant to proving theft of business income. Partner's residence was neither part of the business nor did it generate income.Jury heard testimony as to partner's income and properties, and Defendant cross-examined him based on his income tax returns and business documents. Any additional documents, even were they relevant, would have been cumulative. Court properly considered aggravating and mitigating factors, and sentence was within range for Class 1 felony.  Court's isolated remark "ask your next question" was a direction to defense counsel to proceed and was not prejudicial.(NEVILLE and SIMON, concurring.)

Under Illinois Supreme Court's 2015 ruling in People v. Allen, court improperly dismissed Defendant's postconviction petition at first stage. "Strategy argument" as to trial counsel's decision not to call a witness is inappropriate for the first stage of review of postconviction petition.Relevant test is whether it is arguable that counsel's performance fell below an objective standard of reasonableness and that the defendant was prejudiced. Defendant  presented an "arguable" claim that her trial counsel was ineffective in not calling co-defendant as a witness. (CONNORS and DELORT, concurring).

Defendant was convicted, after jury trial, of aggravated unlawful use of a weapon (AUUW).  The offense of AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, is facially unconstitutional. As a result, the provision is not enforceable against anyone, including Defendant. (FREEMAN, KILBRIDE, KARMEIER, and THEIS, concurring; GARMAN and THOMAS, specially concurring.)