Criminal Law

Defendant was convicted, after jury trial, of two counts of aggravated criminal sexual abuse, and sentended to 42 months incarceration on each count, to be served concurrently; then sentence was revised to three years on each count, to be served concurrently. After original counsel withdrew, court repeatedly offered to appoint counsel for Defendant if he could not afford private counsel, but Defendant repeatedly declined, stating that he did not want PD appointed. Defendant had 3 months to obtain new counsel prior to trial date. Although Defendant never explicitly stated that he was waiving his right to counsel, his actions and words clearly and unequivocally show waiver; Defendant knew he could have counsel appointed but chose to represent himself.(POPE and McCULLOUGH, concurring.)

Defendant entered partially negotiated guilty plea to aggravated battery, a Class 3 felony, for striking a woman in the face during verbal altercation, causing her to fall to the ground, hitting a light post and breaking her shoulder blade. Case remanded, as defense counsel failed to fulfill Rule 604(d) requirements. Counsel's averment that he had reviewed documents "including but not limited to" sentencing transcript and PSI insufficient, as counsel must state that he has reviewed "report of proceedings of the plea of guilty." Purpose of requiring defense counsel to review transcript of plea hearing is to permit counsel the opportunity to review and reflect on the events with a fresh eye, rather than upon memory alone. (STEIGMANN and POPE, concurring.)

Trial court dismissed Defendant's charge of obstructing a peace officer; Defendant refused to produce driver's license and proof of insurance when he was stopped, while driving alone, at a random roadside safety checkpoint. Defendant was not obsttructing or resisting an investigation into whether the laws of Illinois were violated, but was committing the actual offenses proscribed by the Illinois Vehicle Code: failure to display drivers license and proof of insurance. (WELCH, concurring; WEXSTTEN, dissenting.)

(Court opinion corrected 9/13/10.) Trial court erred by giving jury instructions related to armed robbery, although Defendant was not charged with armed robbery but with first-degree murder. Court adequately addressed Defendant's self-defense argument in giving initial aggressor jury instruction. Failure to charge Defendant with armed robbery prior to commencement of trial deprived Defendant of opportunity to present a defense to assertion, raised only after both parties rested and during State's closing argument, that Defendant had committed armed robbery in his struggle with victim over a bicycle. (THEIS and KARNEZIS, concurring.)

(Court opinion from 3/18/10 withdrawn.) Court properly suppressed Defendant's statements in inaudible tape recordings made of his conversations with jail informant who was wearing wire for judicially authorized overhear. Defendant's statements to undercover police informant were properly suppressed because questioning by informant is custodial interrogation under Illinois constitution and statutes. Thus, Defendant's Illinois constitutional rights were violated when he was interrogated after having invoked right to counsel, as Defendant, an Illinois citizen, was indicted by Cook County State's Attorney, and charged in Illinois court with violating Illinois criminal statute. (MURPHY and STEELE, concurring.)

(Court opinion corrected 9/8/10.)Defendant filed pro se successive postconviction petition for relief from judgment as to his conviction for first degree murder in shooting death of man and shooting of man's brother who had just bought drugs from Defendant. Defendant claimed ineffective assistance of counsel by counsel failing to call alibi witnesses. Res judicata applies to bar claim, which was previously dismissed in a substantive ruling because Defendant failed to support his claim with affidavits, and Defendant could have raised his claim of an additional alibi witness in his first petition. Though labeled as a claim of actual innocence, his claim was actually a reiteration of same ineffective assistance of counsel claim; and claim fails because evidence was not newly discovered. (TOOMIN and LAVIN, concurring.)

Defendant was convicted, after jury trial, of first-degree murder of his estranged wife who died after Defendant barricaded her and her two children in bedroom, held knife to her throat, and stabbed her 21 times. Defendant was not denied effective assistance of counsel when his appellate counsel failed to argue that witness, who was victim's neighbor and who testified that he heard Defendant tell victim that she was his for life, that she would never leave him, and that he would kill her, had been sentenced to 16 months imprisonment for revocation of probation on DUI conviction and was on supervised release at time of trial. Defendant was not denied effective assistance of counsel when his trial counsel gave his honest assessment of Defendant's case in telling him that if he testified at trial, he would receive a greater sentenced and hurt his chances on appeal. (JORGENSEN and HUDSON, concurring.)