Criminal Law

Defendant was convicted, after jury trial, of attempted first-degree murder, solicitation of murder, and home invasion. No ineffective assistance of counsel; defense counsel's decision whether and to what extent to challenge attacker as to proffer agreement and his statement was part of a reasonable trial strategy to exploit the inconsistencies in his statements, to challenge his credibility, and to emphasize his relationship with daughter of Defendant and victim, who was Defendant's former husband. Defense counsel's failure to object during State's closing argument did not deprive Defendant of a fair trial; prosecutor is allowed wide latitude in closing arguments. Once court granted Defendant's postconviction petition, it vacated Defendant's guilty plea and accompanying sentence, both parties were then returned to status quo as it existed prior to acceptance of plea, and thus court then correctly reinstated all charges and order trial on all charges. Neither side could then later claim benefit of prior agreement. (ZENOFF and SPENCE, concurring.)

(Modified upon denial of rehearing 9/28/15.) Defendant, an in-home day care provider, was convicted, after bench trial, of aggravated battery of a child, as 7-month-old infant in her care suffered brain injury. Treating physicians concluded that infant's injuries were non-accidental and resulted from significant amount of force. There were several injuries to multiple planes of infant's body that could not have been caused by infant himself. Evidence was sufficient to prove Defendant guilty beyond a reasonable doubt. Trial judge's finding of guilty, standing alone, does not support view that he bore any animosity, hostility, or distrust toward Defendant. Thus, court properly denied 2 motions for substitution for cause. (CARTER and LYTTON, concurring.)

Defendant was convicted, after jury trial, of armed robbery, for holding up pizza delivery driver, pointing rifle at him. Evidence at trial, viewed in light most favorable to the State, was sufficient to prove beyond a reasonable doubt that Defendant carried a firearm. Evidence was not closely balanced as to that issue, as testimony of victim and his co-worker was unequivocal and sufficient to establish that Defendant was armed with firearm during robbery. The failure to give a jury instruction defining "firearm" was not plain error. Failure of defense counsel to tender a jury instruction did not prejudice Defendant.(O'BRIEN and SCHMIDT, concurring.)

Defendant pled guilty to possession of a controlled substance, a Class 4 felony. Court treated Defendant's "Amended Motion to Withdraw Plea of Guilty", filed 8 months later, as a petition for postconviction relief and summarily dismissed it. Given facts alleged, had Defendant been properly advised of immigration consequences of his plea, Defendant's decision to reject the plea bargain would have been rational under the circumstances, including nature of offense and Defendant's lack of criminal history.Defendant's affidavit stated that defense counsel never advised him that pleading guilty would cause him to be immediately deported from U.S. and separated from his family. Defendant made a substantial showing of ineffective assistance of counsel. (McBRIDE and ELLIS, concurring.)

Overwhelming evidence established that Respondent was still a sexually violent person (SVP); thus, no probable cause existed to warrant an evidentiary hearing. Court did not err in finding that no probable cause existed to warrant evidentiary hearing on issue of whether is still an SVP. Court properly denied Respondent's motion for independent examiner as part of his periodic reexamination under SVP Act, as he failed to demonstrate that such an appointment was crucial to his defense. (HUTCHINSON and BURKE, concurring.)

Defendant filed amended petition for postconviction relief, and court granted State's motion to dismiss on ground of untimeliness. Failure of Defendant's counsel on direct appeal to notify him of issuance on direct appeal does not show lack of culpable negligence on Defendant's part, as Defendant failed to make a fully reasoned explication of Section 122-1(c) of Post-Conviction Hearing Act. Defendant failed to explain to Appellate Court what triggers running of the period of limitation, what the period of limitation, and how the issuance of decidion on direct appeal relates to that trigger. Without such explanation, Appellate Court cannot address issue of culpable negligence. (KNECHT and HOLDER WHITE, concurring.)

Postconviction petition alleging ineffective assistance of counsel, in sequel to case heard on direct appeal, and on the merits, by First District Appellate Court, Illinois Supreme Court, and U.S. Supreme Court, in which Defendant was convicted of aggravated kidnapping, aggravated robbery, and aggravated criminal sexual assault. Defendant contended on appeal that report from Cellmark that forensic scientist referenced in her testimony and used in her analysis was testimonial, and thus claimed that his right to confrontation was violated. Defendant argues that 3 documents should have been presented on his behalf in appeal: Rule 11.1.2 of FBI Standard, 2008 manual from ASCLD/LAB, and transcript from a prior, unrelated proceeding of Defendant's in which a former manager of research and lab director at Cellmark testified. Speculation as to whether Justice Clarence Thomas would have changed his deciding vote if these documents had been presented, as the substance of that argument was made by appellate counsel, and amici briefs made reference to the same documents and arguments. (ROCHFORD and HOFFMAN, concurring.)

Defendant was convicted, after jury trial, of aggravated vehicular hijacking, armed robbery, and aggravated unlawful restraint. Defense counsel promised, in opening statement, to present alibi witnesses whose story would be completely at odds with State's case. Although defense counsel presented testimony highlighting inconsistencies and weaknesses in State's case, no evidence directly contradicted State's case. As evidence of Defendant's guilt was not overwhelming, had counsel properly supported defense theory with witness testimony, counsel's unfulfilled promise did prejudice Defendant. However, given overall nature and quality of evidence considered given counsel;s otherwise effective representation, counsel did not render ineffective assistance. (PIERCE and SIMON, concurring.)

Defendant, having been found a sexually dangerous person in 2007, filed a pro se petition 5 years later alleging recovery. After bench trial, court found that Defendant remained an SDP. A trial court's failure to make a finding that there was a substantial probability Defendant would engage in commission of sex offenses in the future if not confined may not be harmless error. A finding of sexual dangerousness must be accompanied by a substantial probability finding. Error must not necessarily result in outright reversal of order, but may be remanded for rehearing. (WRIGHT, concurring; SCHMIDT, concurring in part and dissenting in part.)