Criminal Law

Court granted State's petition to terminate Defendant from county's drug-court program to which he had been admitted under terms of plea agreement. Rule 402 admonishments advise Defendant of rights he is waiving pursuant to his guilty plea, but Rule 402 does not provide for any admonishment advising Defendant that he is waiving right to appeal, and whether admonishment of waiver of right to appeal is valid depends on facts of each case. Trial court specifically addressed waivers and agreements, and Defendant agreed that he initialed provision waiving his right to appeal, that he did so after reviewing waiver with counsel, and that he understood waiver. Thus, Defendant's waiver of right to appeal is valid and enforceable. (HUTCHINSON, concurring; JORGENSEN, specially concurring.)

Defendant entered negotiated guilty plea for offense of aggravated possession of stolen firearms. Defendant moved to withdraw plea on grounds that trial court failed to advise him in accordance with Section 113-8 of Code of Criminal Procedure, as to potential immigration consequences of his plea. Defendant failed to show, in motion nor argument, that he was subject to potential immigration penalties or that he would not have pled guilty if court had properly admonished him of immigration consequences of his plea. Defendant sufficiently alleged prejudice in plea context, in his postconviction petition, in alleging that his conviction at trial was not certain because evidence at guilty plea hearing indicated that he had a plausible defense, and in alleging that he has family living in the U.S. Thus, defense counsel's deficient performance, in failing to advise him of risk of deportation, deprived Defendant of a chance to avoid deportation if he had prevailed at trial. (McDADE, specially concurring;HOLDRIDGE, concurring in part and dissenting in part.)

(Court opinion corrected 12/12/14.) Defendant was convicted, after bench trial, of burglary, for knowingly and without authority remaining within Walmart with intent to commit therein a felony or theft. A defendant who develops an intent to steal after his entry into a public building may be found guilty of burglary by unlawfully remaining. Just as a defendant's entry is "without authority" if accompanied by a contemporaneous intent to steal, a defendant's remaining is "without authority" if it also is accompanied by an intent to steal. State sufficiently proved Defendant remained in Walmart "without authority" as he moved through the store and stole merchandise. Any authority Defendant may have had to remain in store was implicitly withdrawn once he formed intent to steal from store. Thus, evidence was sufficient to convict Defendant of burglary as charged. (POPE and TURNER, concurring.)

Defendant was convicted, after jury trial, of aggravated battery with a firearm and armed violence predicated on his knowingly causing great bodily harm to another. Plain language of current armed violence statute prohibits predicating armed violence on any part of aggravated battery statute, including Section 12-4(a), as wording excludes any offense that makes use of dangerous weapon either element of base offense or aggravated or enhanced version of offense. No ineffective assistance of counsel where claims are as to trial counsel's strategy or are refuted by the record or present general and unsupported allegations. (GOLDENHERSH and STEWART, concurring.)

Defendant was convicted, after bench trial, of three counts of organizing a continuing financial crimes enterprise, for fraud involving real estate loans on multiple properties. State presented sufficient evidence to prove commission of predicate offense of three loan frauds within 18-month period. Defendant occupied role of organizer or supervisor, and made agreements with others to commit theft by deception as to mortgage, and failed to disclose agreements to banks. Statute does not require that Defendant must have had both leadership role and control over every other person in conspiracy, but only to have occupied one of the roles of organizer, supervisor, or financier, or position of management.(CUNNINGHAM and CONNORS, concurring.)

Defendant was convicted, after jury trial, of unlawful possession of controlled substance with intent to deliver and driving while license revoked. Detective testified that he searched through recent text messages on Defendant's cell phone during interview with Defendant, and testified that Defendant received shortly after traffic stop: "Can you meet me for a 30 or a 40?", consistent with someone trying to buy $30 or $40 worth of crack cocaine. Best evidence rule did not apply, as State did not seek to prove content or terms of text, but used text as circumstantial evidence of intent to deliver crack cocaine. Text was not hearsay, as not offered for truth of matter asserted. No ineffective assistance of counsel for failure to file motion to suppress evidence from cell phone, as U.S. Supreme Court case of Riley v. California, declining to extend search-incident-to-arrest exception to include searches of data on cell, had not yet been decided at time of trial, and motion would likely have failed.(HOLDER WHITE and STEIGMANN, concurring.)

Defendant was charged with willful obstruction or interference with lawful taking of wild animals (hunter harassment), and entered pro se guilty plea, but then hired counsel who filed motion to withdraw guilty plea. Defendant and his father, who was also convicted of hunter harassment, resided on property that shared boundary with property where neighbors were attempting to hunt deer. Defendant and his father interfered with the hung by making noise in various ways. Interests of justice demand that Defendant be allowed to withdraw his guilty plea, as plain language of hunter harassment statute exempts legal use of land by landowners and tenants, and as Defendant pled guilty when pro se, so he and his father, sole breadwinners, would not be incarcerated. (LYTTON and HOLDRIDGE, concurring.)

Defendant was convicted, after bench trial, of first-degree murder and sentenced to 50 years. Court did not err in denying Defendant leave to file successive postconviction petition, as petition did not present a colorable claim of actual innocence. Even when examining petition under more lenient standard of initial postconviction petition, there is no basis for ineffective assistance of counsel claims. Counsel was not ineffective for failing to present evidence in mitigation, at sentencing, when evidence was cumulative of pre-sentence investigation report, and court placed most weight on fact that victim was shot to death during middle of day in front of grocery store and numerous gunshots were fired. No ineffective assistance of counsel in counsel's recommendation to take bench trial, as counsel knew the judge; recommendation was a matter of strategy, and decision to waive jury was Defendant's, not counsel's, decision. No ineffective assistance of counsel in allegation that counsel came to court intoxicated and smelled of liquor on at least one occasion before trial; even if accepted as true, no allegation of prejudice. (McBRIDE and REYES, concurring.)