Criminal Law

This case presents question as to whether trial court abused its discretion in denying defendant’s motion to conduct Franks hearing to determine whether warrant used to seize drugs and weapons contained deliberately false statements by confidential non-government informant, where said informant testified before judge who issued instant warrant. Appellate Court, in finding that trial court abused its discretion in denying motion for Franks hearing, found that: (1) defendant must be given opportunity to make requisite “substantial preliminary showing” required by Franks, even where informant had testified in front of issuing judge; and (2) defendant met such showing where defendant’s affidavits indicated that officer who sought warrant allegedly coerced informant into making false statements.

This case presents question as to whether trial court properly dismissed on its merits defendant’s section 2-1401 petition challenging his 25-year firearm enhancement on his sentence. Appellate Court found that said sua sponte dismissal was premature, where record showed that petition had not been properly served on state. Record showed that defendant had mailed said petition via regular mail, as opposed to required certified mail, and although Assistant State’s Attorney was present in court at time of said dismissal, Appellate Court found that defendant’s failure to effect proper service meant that state was required to formally waive said service before trial court could dismiss petition. In its petition for leave to appeal, state argued, among other things, that defendant could not take advantage of his own failure to properly serve state.

This case presents question as to whether appointed counsel may withdraw from representing defendant in post-conviction petition, where basis for withdrawal was counsel’s assessment that she could not find any flaws in process that defendant had received, and where trial court had previously advanced petition to second stage. Appellate Court, in affirming instant withdrawal, found that counsel had fulfilled any Rule 651(c) duties by consulting with defendant regarding his ineffective assistance of counsel claims and further determined that said claims were frivolous on their merits. Ct. rejected defendant’s argument that fact that petition had advanced to second stage of proceedings meant that trial court had previously found that said claims were not frivolous.

This case presents question as to whether defendant, who was over 21, could be charged and prosecuted as adult on charge of aggravated criminal sexual assault charge, where: (1) defendant was 14-year old juvenile at time of alleged commission of said offense; (2) statute of limitations had not yet expired on said offense; and (3) instant 12-year delay in prosecuting charge was not attributable to state. While trial court dismissed indictment as if case was barred by statute of limitations, Appellate Court found that section 5-120 of Juvenile Court Act permits indictment of person who has attained 21 years of age for offenses allegedly committed when deemed minor under said Act.