More than 200 new Illinois laws scheduled to take effect on Jan. 1. Here are the new laws governing Crime, Courts, Corrections and Law Enforcement in Lake County, Illinois:
- Child Abuse by Professionals (SB 1763/PA 99-0350): Clarifies definitions to include situations where a person who is acting in a professional capacity abuses or neglects a child.
- Abused Adult Records Access (SB 1309/PA 99-0287): Gives a Public Guardian access to records regarding investigations of abuse, neglect, financial exploitation or self-neglect of eligible adults when the Public Guardian is investigating the need for a guardianship or pursuing a petition for guardianship.
- Abused Children Protection Orders (SB 1335/PA 99-0349): Provides that the parties to the proceedings are also entitled to copies of unfounded reports.
- AED Mandate (SB 764/PA 99-0246): Requires sheriff’s offices and municipal police departments that employ over 100 police officers comply with the AED Act and be equipped with an AED.
- Body Cameras (SB 1304/PA 99-0352): Establishes rules and regulations for the use of officer-worn body cameras and implements a package of police reforms. Police reforms: Prohibits police from using chokeholds, except when deadly force is justified; requires an independent review of officer-involved deaths, and makes investigation reports part of the public record if an officer involved in a death is not charged with a crime; expands police officer training to include topics like use of force; creates a database of officers who have been fired or resigned due to misconduct. Body camera regulations: Does not require police departments to use body cameras. If they choose to do so, officers must keep their cameras on when conducting law enforcement activities. Officers would be allowed to turn the camera off when talking to a confidential informant, or at the request of a victim or witness. Requires officers to let people know they are recording if they enter a home. Videos will be kept for 90 days, unless flagged for specific reasons. Allows for grants via a $5 fee increase for each $40 on criminal and traffic offenses, to go toward cameras and new training.
- Coroner Training Board (SB 663/PA 99-0408): Creates the Coroner Training Board Act and Transfers the oversight of coroner training from the Law Enforcement Training Standards Board to a new Coroner Training Board the authority to conduct and approve a training program in death investigations.
- County Jail “Good Time” Sentencing (HB 3785/PA 99-0259): Changes existing provision that no committed person may be penalized more than 30 days of good behavior allowance for any one infraction by providing that if the infraction is the second or subsequent infraction within any 30-day period, then the committed person may not be penalized more than 60 days of good behavior allowance.
- Court Interpreters for Civil Cases (HB 3620/PA 99-0133): Requires appointment of language interpreters for witnesses and parties in civil cases, if necessary.
- Court Services Fee (SB 804/PA 99-0265): Allows counties to impose a higher court services fee (now maximum of $25) if the fee is supported by an acceptable cost study. The fee must be used to defray court security expenses.
- Court Supervision for Aggravated Speeding (HB 1453/PA 99-0212): Provides that a defendant charged with speeding 26 miles per hour or more in excess of the applicable speed limit may be eligible for court supervision if the defendant has not been previously convicted for a similar offense or previously assigned court supervision for a similar offense.
- Crime Victims Debt Collection (SB 1866/PA 99-0444): Amends the Crime Victims Compensation Act to prevent a vendor who has been provided notice of a claim filed under the Act from engaging in debt collection activities against the applicant until the Court of Claims awards compensation for the debt and the payment is processed. “Debt collection activities” does not include billing insurance or other government programs, routine inquiries about coverage, or routine billing that indicates that the amount is not due pending resolution of the crime victim compensation claim.
- Domestic Violence Sentencing Consideration (SB 209/PA 99-0384): Adds a history of domestic violence to the list of mitigating factors for judges to consider during sentencing. Creates a process for courts to review petitions for re-sentencing for certain offenses committed by a victim of domestic violence who was unable to present evidence of domestic violence at trial.
- Discovery (HB 95/PA 99-0110 – Sen. Michael Connelly): Provides that discovery in civil cases, such as admissions of fact and of genuineness of documents, physical and mental examinations of parties and other persons, the taking of any depositions, and interrogatories shall be in accordance with rules.
- DUI-related Safety Provisions (SB 627/PA 99-0467): Makes several recommendations based on the Traffic Safety Advisory Committee. Changes include the following:
- Requires certain individuals suspected of consuming alcohol to sign the written warning from law enforcement.
- Removes “hard time” provisions which currently prohibit driving relief for DUI offenders, and instead allow offenders to apply for a Monitoring Device Driving Permit or Restricted Driving Permit, with a Breath Alcohol Ignition Interlock Device.
- Requires any offender with two+ DUI or reckless homicide convictions to install a BAIID as a condition of a Restricted Driving Permit.
- Requires a BAIID, as a condition of a RDP, if the offender is convicted of DUI involving death, great bodily harm or permanent disability or disfigurement to another.
- Elderly Exploitation Civil Action (HB 1588/PA 99-0272 – Sen. Jason Barickman): Changes the civil liability provision of financial exploitation of an elderly person or a person with a disability to allow for a civil cause of action regardless of whether criminal charges have been filed. Civil liability provision does not limit or affect the right of a person to bring a cause of action or seek any remedy available under the common law, or other applicable law.
- Facilitated Courtroom Testimony (SB 1389/PA 99-0094): Allows the court to set conditions it finds just and appropriate, including the use of therapy and service animals, for taking the testimony of a child victim or disabled victim in certain sex offense cases.
- False 9-1-1 Call (HB 3988/PA 99-0160 – Sen. Michael Connelly): Requires reimbursement where a person makes a false 9-1-1 call knowing there is no reasonable ground for making the call or transmission and further knows that the call or transmission could result in the emergency response of any public safety agency. Caps reimbursement at $10,000.
- First Responder Assault Penalties (HB 3184/PA 99-0256): Enhances the penalty for aggravated assault of a peace officer, fireman, emergency management worker, or emergency medical technician.
- Foreclosure Special Representative (SB 735/PA 99-0024): Adds conveyances under a transfer on death instrument, conveyances where title was transferred prior to death, and where title was conveyed from the deceased’s probate estate to foreclosure cases where the court is not required to appoint a special representative for a deceased mortgagor.
- Foreign Affairs Officers Arrests (HB 1337/PA 99-0190): Provides that the new consular notification mandate does not create any affirmative duty to investigate whether an arrestee or detainee is a foreign national.
- Gender Identity Protection (HB 3552/PA 99-0417): Provides that the written directions a person leaves regarding disposition of that person’s remains may include instructions regarding gender identity including, but not limited to, instructions with respect to appearance, chosen name, and gender pronouns, regardless of whether the person has obtained a court-ordered name change, changed the gender marker on any identification document, or undergone any transition-related medical treatment.
- Good Conduct Time Sentencing (HB 3475/PA 99-0381): Amends the Unified Code of Corrections by expanding who may be eligible for certificates of good conduct to include persons convicted of committing or attempting to commit a Class X felony or a forcible felony (other than certain offenses currently specifically excluded in statute).
- Good Conduct Sentencing Credit (HB 3884/PA 99-0241 – Sen. Michael Connelly): Gives an additional 30 days of sentence credit to any prisoner who passes their high school equivalency testing while in the Department of Corrections or while they are being held in pre-trial detention (county jail) prior to the current commitment to the Department of Corrections.
- IDOC Parolee Information (HB 2722/PA 99-0275 – Sen. Michael Connelly): Helps protect the privacy of rehabilitated inmates seeking to reenter society because of (1) witness protection issues and gang affiliation/retaliation when an inmate is released. This bill does not affect separate victim notification requirements when an offender is released.
- Juries – Removal and Disability (HB 3704/PA 99-0102 – Sen. Michael Connelly): Provides additional means of establishing a total and permanent disability for purposes of a prospective juror seeking a permanent exclusion from jury service (an individualized education program plan or proof of a guardianship).
- Juvenile Justice Councils (HB 3718/PA 99-0258): Eliminates provisions in the Juvenile Court Act of 1987 that require automatic prosecution of minors as adults. Eliminates mandatory and presumptive transfers to adult criminal prosecution. Retains discretionary (judicial) transfer provisions.
- Juvenile Justice Councils (HB 4044/PA 99-0435): Amends the Juvenile Court Act of 1987 by expanding entities who may designate representatives to serve on county juvenile justice councils. This will add additional community-based perspectives to the juvenile justice councils.
- Juvenile Justice Reforms (SB 1560/PA 99-0268): Prevents juvenile misdemeanants from Department of Juvenile Justice (DJJ) commitment, suspends automatic custodianship of DJJ for aftercare (parole) violators if they have new adult criminal charges pending, and adjusts length of aftercare time to be proportional with length of adult parole.
- Juvenile Justice Reports (HB 3141/PA 99-0255 – Sen. Dale Righter): Amends the Unified Code of Corrections by adding a new section that clarifies the reporting requirements of the Department of Juvenile Justice to the Governor and General Assembly. Provides a due date of Jan. 1.
- Law Licenses for Non-Citizens (SB 23/PA 99-0419): Asks the Illinois Supreme Court to grant law licenses to non-citizens provided certain conditions have been satisfied related to the recently enacted federal “Deferred Action for Childhood Arrivals” program.
- Lifetime Sentences for Juveniles (HB 2471/PA 99-0069): Aligns Illinois’s criminal statutes with a U.S. Supreme Court ruling that found automatic mandatory life sentences for juveniles to be unconstitutional. Grants judges leeway to determine whether such a sentence is warranted and allows judges to lengthen or shorten a sentence depending on whether a firearm or automatic weapon was used in a capital crime.
- Minors in Detention Facilities (HB 2567/PA 99-0254): Prohibits a delinquent minor younger than age 13 from being admitted, kept, or detained in a detention facility unless a local youth service provider has first been contacted and is not able to accept the minor.
- Missing Persons Identification Act Changes (HB 4097/PA 99-0244 – Sen. Kyle McCarter): Prohibits law enforcement agencies from refusing to accept a missing person report on the basis of the missing person’s mental state or medical condition.
- Mental Health Fitness Ability to Stand Trial (SB 1938/PA 99-0140 – Sen. Tim Bivins): Amends the Code of Criminal Procedure relative to defendants found unfit to stand trial by making sure that the reports of forensic examiners working for circuit courts are also provided to the Department of Human Services (DHS) in conjunction with the judge’s order remanding the unfit defendant to a DHS facility for treatment.
- Mistaken Arrest Records (HB 169/PA 99-0363): Requires, if a person has been arrested for a criminal offense based upon mistaken identity, the law enforcement agency whose officers made the arrest to delete or retract the arrest records of that person.
- Orders of Protection Process (HB 3161/PA 99-0240): Prohibits a special process server from being appointed in Cook County if the order of protection to be served grants the surrender of a child, the surrender of a firearm or firearm owner’s identification card, or the exclusive possession of a shared residence.
- Out-of-State Subpoenas (SB 45/PA 99-0079 – Sen. Jason Barickman): Creates a simple process for civil cases by which a subpoena from an out-of-state court can be used to issue a discovery subpoena in Illinois.
- Police Crisis Intervention (HB 4112/PA 99-0261): Provides that the Law Enforcement Training and Standards Board (LETSB) will create a standard curriculum in crisis intervention and specialized policing responses to mental illness. Requires LETSB to conduct Crisis Intervention Team Training.
- Powdered Alcohol Ban (SB 67/PA 99-0051): Prohibits the sale of products consisting of or containing powdered alcohol in Illinois by creating a Class A misdemeanor for a violation and a Class 4 felony for a second or subsequent violations.
- Powdered Caffeine Prohibition (SB 9/PA 99-0050): Prohibits the sale or offering of powdered pure caffeine to anyone younger than age 18.
- Power of Attorney (SB 159/PA 99-0328): Makes technical changes to the Illinois Power of Attorney Act relative to health-care powers of attorney.
- Preservation and Delivery of Evidence (HB 233/PA 99-0354 – Sen. Tim Bivins): Requires the County Coroner to properly preserve evidence from a death investigation if appropriate equipment is available and release it to the investigating agency no later than 30 days after collection. Requires the police agency receiving that evidence to submit the specimens to a National DNA Index System participating laboratory within the state.
- Probate Citations Recover (SB 1308/PA 99-0093): Allows the court to issue a citation, pursuant to any civil cause of action, for the appearance of any person who may have had assets in his or her possession and of any person who may be liable to the estate of a ward.
- Probate Disabled Persons Wills (SB 90/PA 99-0302): Establishes a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled and either a plenary or limited guardian has been appointed and the court has found that the testator lacks testamentary capacity.
- Probate Temp Adult Guardians (HB 2505/PA 99-0070): Amends the Probate Act to provide that a temporary guardian of a disabled adult shall have the limited powers and duties of a guardian of the person or of the estate which are specifically enumerated by court order.
- Prostitution (SB 201/PA 99-0347): Makes it an aggravating factor in promoting juvenile prostitution, patronizing a prostitute, or patronizing a minor engaged in prostitution knowing that the minor was in the custody or guardianship of the Department of Children and Family Services.
- Same Sex Hate Crimes Definition (HB 3930/PA 99-0077): Changes definition of “sexual orientation” in the hate crime statute, the institutional vandalism statute, and the statute concerning aggravating factors in sentencing to the definition used in the Illinois Human Rights Act. Amends the offense of institutional vandalism by replacing the term “sexual orientation” with “ancestry, gender, sexual orientation” and “physical or mental disability.”
- Scott’s Law Changes (SB 1424/PA 99-0125): Adds recycling vehicles to vehicles covered under Scott’s Law.
- Sealing of Criminal Records (HB 3149/PA 99-0378): Allows a person who earned a high school diploma, associate’s degree, vocational technical certification, or bachelor’s degree, or GED during the period of his or her sentence or mandatory supervised release to petition for early sealing of the record prior to the applicable waiting period.
- Sealing of Criminal Records (SB 844/PA 99-0385): Allows for sealing of certain eligible criminal records in two years (rather than three years or four years) and other records including eligible felonies in three years (rather than four years) after the end of the case.
- Sexual Abuse (SB 207/PA 99-0283): Makes it an aggravating factor in sentencing for certain sex offenses committed against a victim with an intellectual disability and the defendant holds a position of trust, authority or supervision in relation to the victim.
- Statute of Limitations Suspensions for Sexual Assault Evidence Kits (HB 369/PA 99-0252): Tolls the statute of limitation period for charging a sex crime from the time evidence of a sexual assault is collected and submitted by a law enforcement agency until the completion of the analysis of the Illinois State Police.
- Synthetic Drug Classification (SB 1129/PA 99-0371 – Sen. Kyle McCarter): Gives law enforcement a new tool in combating the sale, distribution and possession of synthetic drugs by banning their underlying chemical structure.
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The Traffic Stop
State trooper stops Defendant on the highway for crossing the yellow line and following too closely. About 20 or 30 minutes into it, the tickets are written out and the trooper still has Defendant’s DL.
But before giving Defendant the paper work and returning his DL, the trooper asks him to get out his truck. Also, he had called for the drug dog before getting him out of the car.
Trooper tells defendant that he smelled cannabis in the vehicle. He asked defendant to explain why he smelled cannabis. Defendant says that there was probably an odor of cannabis on his clothes. He also admitted that he had a “bowl” in the center console.
Why Did the Stop Take So Long?
Oh yea, defendant was on the terrorist watch list. Cop had to make several calls to the feds and was working on confirming Defendant’s identity. The trooper knew, before he gets him out of the car, that the feds cleared Defendant.
What They Find?
Prior to the dog arriving, the trooper searched the truck and found a smoking device and a tobacco package with raw cannabis inside. The dog alerted to the presence of drugs at the back of the vehicle. The troopers pried open the tailgate and found four duffel bags containing 5,505 grams of marijuana.
Did the Trooper Really Smell Anything?
The trooper who stops defendant testified that he could smell a faint odor of cannabis when he first approached the truck. On the squad video he says, “When I was up there talking to him I thought I could smell an odor of burnt cannabis, not raw cannabis. I’m not certain the way the wind was blowing and stuff. I’m not going to call him out on that, and I am going to question him about it at some point. I am not going to use that as probable cause to search the vehicle. I’m not 100% sure about that.”
A second trooper testified that he only smelled a masking agent. Said it smelled like freshly sprayed deodorant. This trooper also had two separate conversations with Defendant. Each time Defendant denied having cannabis in the truck (this was before the get him out the car and he finally admits to the pipe).
A seizure that is lawful at its inception may become unlawful under the fourth amendment if –
(1) the duration of the stop is unreasonably prolonged, or
(2) the officer’s actions during the stop independently trigger the fourth amendment.
See Illinois v. Caballes, 543 U.S. 405, 407-08 (2005).
An investigative stop that is lawful at its inception must cease once reasonable suspicion dissipates, unless there is a separate Fourth Amendment justification to prolong the stop. See People v. Baldwin, 388 Ill. App. 3d 1028, 1033 (2009). “Mere hunches and unparticularized suspicions are not enough to justify a broadening of the stop into an investigatory detention.” People v. Ruffin, 315 Ill. App. 3d 744, 748 (2000).
A routine traffic stop may not be used as a subterfuge to obtain other evidence based on an officer’s suspicion.People v. Koutsakis, 272 Ill. App. 3d 159, 164 (1995).
Where a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person had committed an offense, reliance on that information justifies a stop to check identification, to pose questions to the person or to detain the person briefly while attempting to obtain further information. See United States v. Hensley, 469 U.S. 221, 232 (1985); see also People v. Ewing, 377 Ill. App. 3d 585, 593-94 (2007) (Hensley principles apply to communications sent through dispatch). Evidence recovered during the course of a bulletin stop is admissible if the stop is not significantly more intrusive than would have been permitted by the issuing department. Hensley, 469 U.S. at 233.
Prolonging the Stop Means Illegal Traffic Stop
The record establishes that the trooper waited for approximately 23 minutes before dispatch reported back to him the Defendant was not wanted by the feds. Rather than returning his DL and giving him the tickets, at that point, the trooper gets defendant out of the truck. All of this was done 30 minutes into the stop.
The stop lasted an additional 22 minutes after tickets are written. It seems clear that the troopers prolonged the stop in an effort to obtain incriminating information from defendant.
What About Smell of Weed?
While the smell of burnt cannabis may be sufficient in some cases, in this case the arresting officer failed to supply the articulable facts necessary to support a fourth amendment intrusion.
Trooper testified that he thought he smelled burnt cannabis, but he was not sure. His statements on the videotape of the stop were consistent with his vague statements at trial. On the videotape, the trooper told the dispatcher that he thought he smelled an odor of burnt cannabis but was uncertain because of the way the wind was blowing.
The second trooper did not testify that he thought the “masking agent” was a sign of contraband. Second trooper then asks Defendant directly if he has marijuana. Defendant says no. At that point, any reasonable suspicion that may have been generated by first trooper’s uncertain smell dissipated.
These facts support only a hunch or suspicion of illegal activity. They do not give rise to a reasonable and articulable suspicion that defendant was trafficking cannabis. Thus, beyond the delay pursuant to the terrorist watch list issue, the troopers did not have an independent articulable suspicion to prolong the stop. The continued detention of defendant was a violation of his constitutional rights.
The case, Betterman v. Montana, No. 14-1457, concerned Brandon T. Betterman, who pleaded guilty to jumping bail in the spring of 2012. He spent the next 14 months in a Montana jail waiting to hear what his sentence would be.
He complained to the judge, saying the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by the uncertainty.” In the summer of 2013, the judge finally sentenced him to seven years in prison, with four years suspended.
The long delay, Mr. Betterman said, had violated his Sixth Amendment right to a speedy trial.
Justice Ruth Bader Ginsburg, writing for the court, rejected the argument. There is a difference between trials, which adjudicate guilt, and sentencings, which determine punishment, she wrote.
“As a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction,” Justice Ginsburg said.
She added that “the sole remedy for a violation of the speedy trial right” is dismissal of the charges, which “would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions.” The empty seat left by Justice Antonin Scalia’s death leaves the court with two basic options for cases left on the docket this term if the justices are deadlocked at 4 to 4.
Mr. Betterman had not sought outright dismissal of the case against him, suggesting instead that an appropriate remedy for the 14-month delay in his sentencing would be an equivalent reduction in his prison term. Justice Ginsburg rejected the possibility of “a flexible or tailored remedy.” A violation of the right to a speedy trial, she said, “demands termination of the prosecution.”
Nor did it matter, she wrote, that a vast majority of criminal prosecutions these days end with guilty pleas rather than trials, making sentencing proceedings more important. That “modern reality,” she wrote, “does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause.”
Justice Ginsburg did say that capital cases, in which the sentencing phase is often elaborate and crucial, may require a different speedy-trial analysis.
The court left open a different avenue to attack long sentencing delays.
Mr. Betterman, Justice Ginsburg wrote, “retains an interest in a sentencing proceeding that is fundamentally fair.” It was possible, she said, that he could have attacked the delay in his case as a violation of a different constitutional right, that of due process.
“But because Betterman advanced no due process claim here,” Justice Ginsburg wrote, “we express no opinion on how he might fare under that more pliable standard.”
In a concurrence, Justice Sonia Sotomayor sketched out a possible framework for deciding whether sentencing delays violate due process. In a second concurrence, Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., said that was premature.
“We have never decided whether the Due Process Clause creates an entitlement to a reasonably prompt sentencing hearing,” Justice Thomas wrote. “Today’s opinion leaves us free to decide the proper analytical framework to analyze such claims if and when the issue is properly before us.”
It’s not unusual for police officers to be filmed by people with cellphones during a traffic stop nowadays, but police throughout Lake County may be wearing body cameras to monitor interactions as soon as this fall in Round Lake Park, and other departments are not far behind.
From Round Lake Park to Round Lake and Mundelien to the Lake County Sheriff’s Office, municipalities and their police departments are moving ahead with body cameras.
“This is definitely the wave of the future and something that’s needed,” Lake County State’s Attorney Michael Nerheim said. “Body cameras are a type of evidence and the more evidence we have in any case the better.”
Gov. Bruce Rauner last week signed legislation that lays out the rules for police body cameras in Illinois, making it only the third state in the country to establish such rules, according to an Associated Press analysis. While it does not mandate body cameras, although there was legislation floated that would have done just that, it does specify how they will be worn, when they have to be turned on and how long the recordings must be kept as evidence.
It also established a grant program funded by a $5 addition to traffic tickets to help police departments buy the body cameras.
“They are going to be involved in every case, even misdemeanors,” Nerheim said. “You’re going to see footage on every single case.”
Nerheim said his office is working with the more than 40 police departments in Lake County on uniformity. If each department operated on a different system, that could pose a problem for his office, which would handle the recordings in court.
“It’s important we are part of the process,” he said.
Round Lake Park Police Chief George Filenko said if everything goes as planned his department will be ready to roll out the body cameras by mid September.
“It’s logical we’re doing this,” he said, “We decided this was the way to go.”
The village has purchased 6 4RE in-car systems with panoramic HD cameras and 13 VISTA HD body-worn cameras that have adjustable lenses so officers can adjust them according to their height. The total cost was approximately $57,000, which also includes a server and needed software.
For Patrol Officer Donna O’Brien, the body camera, which uses industrial strength magnets to hold it in place, is a good thing.
“I prefer them,” she said, “It’s good to have one more form of evidence to back up the truth.”
“I also think it’s good tool for training. I can review how I walked up to a vehicle during a traffic stop or person and see how I might of done it differently,” or see something that may have put her in danger, but she didn’t realize it at the time, she said.
“It will keep me on my toes, but I always act professionally,” she said.
Filenko said the response of his officers has not been “why do we need them,” but “when are we getting them.”
“In my opinion this is going to become standard, it may even be mandatory eventually,” he said. He knew two years ago they were going to need new squad car videos and he thought of incorporating the body cameras with that new system.
“It’s still not going to replace the human eye,” he said, but in the worse-case scenario, an officer involved shooting, “the more video the better,” said Filenko, who is in charge of the Major Crime Task Force that is called in to investigate those shootings.
Round Lake Police Chief Michael Gillette said his mayor and trustees wanted to get ahead of the curve and be pro-active. “I’m proud of the board and the mayor for letting us do that,” he said of their purchase of 15 FirstVu HD cameras from Kansas-based Digital Ally, at a cost of $13,800.
“We feel it’s a good tool for the officers to put together a solid case,” he said, “and of course it would be used in allegations of misconduct. I think they are really good tools.”
Bigger departments have bigger problems with figuring out the financing, but the Waukegan Police Department is “aggressively” researching different models, according to Cmdr. Joe Florip.
“We need to see what will work best (for the 80 patrol officers and 20 patrol cars). We’re excited as an organization to get body cameras. We think it’s best for our community and the police department,” he said.
“It’s priceless when it comes to a citizen complaint. There’s nothing like pulling up a video,” he said, noting that sometimes they can do that now from dash cameras and sometimes residents see their actions in a different light.
The Lake County Chiefs Association, headed by Highland Park Chief Paul Schafer, said they are getting more inquiries from other chiefs about body cameras. There still needs to be a lot of policy work, such as how to handle Freedom of Information requests, obscuring juvenile or witness faces from the video and other issues and having the personnel able to do that.
“There’s a lot of implementation with this new technology that the chiefs are taking a look at,” he said. They plan to have it on their agenda for the September meeting.
Other departments like Round Lake Beach are just starting to look into it, partly because of the funding mechanism included in the bill the governor recently signed. For some departments it would be hard to afford and they want to make sure they get the right equipment.
“We want it done right the first time,” said Police Chief Dave Hare. But he believes they will benefit police and the community.
“Transparency is a good thing for the community and body camera play into that,” he said
April 2016 Illinois Criminal Case List DUI | Appeal Prosecutor on this aggravated DUI represented defendant when he was charged with his first DUI.People v. Kibbons Is this a conflict of interest? Well the defense argued that his plea should be vacated because there was a per se conflict of interest on the part of the State’s Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution. However, the court did not reach the merits of the claim. The defendant did not file a notice of appeal within 30 days of the denial of the motion to reconsider his plea. Instead, he filed what he should have filed initially, that being a motion to vacate his guilty plea under Rule 604(d). While that motion was filed while the trial court still had jurisdiction, it was not a timely motion under Rule 606(b), and we have no discretion to forgive the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19 (motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict, was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would render the term “timely” in 606(b) meaningless). Since the notice of appeal was untimely, the court lacked lack jurisdiction over the appeal. Go to case. Sex Case | Other Cries Was it error for the judge to admit other crimes evidence from other patients?People v. Arze Defendant was a family physician convicted of aggravated criminal sexual assault for forcibly having sexual intercourse with a patient during treatment. The trial judge observed that the women at issue were in the same age range and all had been diagnosed with depression, although the other crimes occurred during other types of treatments. Each incident occurred when the women were partially undressed. Two of the women testified to observing defendant’s erection during the incidents. In each case, defendant touched the vaginal area. The women each had said “no” or otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant was in close proximity to the women on an examination table. In 1 Illinois, however, our legislature has chosen to provide a limited exception to this general rule of inadmissibility for othercrimes evidence intended to show the defendant’s propensity to commit crimes.” “If a defendant is tried on one of the enumerated sex offenses, section 1157.3(b) of the Code [citation] allows the State to introduce evidence that the defendant also committed another of the specified sex offenses.” Our supreme court has upheld the constitutionality of section 1157.3. In this case, all the victims had the same relationship to defendant, i.e., the doctorpatient relationship. The evidence demonstrated that the women were in the same age range and all had been diagnosed with depression, although the other crimes occurred during other treatments. Each incident occurred in defendant’s examination rooms, when the women were partially undressed. Two of the women testified to observing defendant’s erection during the incidents. In each case, defendant touched the vaginal area. The women each had said “no” or otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant was in close proximity to the women who were on an examination table. The fact that this victim alleged forced sexual intercourse, while the two other crimes victims alleged lesser forms of sexual misconduct, is insufficient to conclude that the trial judge abused her discretion. Finally, the case lays the proper procedure for a court to follow when a defendant is asking for medical records of a victim. Go to case. Evidence | 115‐10 Statement | Sex Case Defendant is convicted on two counts of predatory criminal sexual assault based on the child’s testimony and her 11510 statement. People v. Johnson The child testified that her father licked his fingers and inserted them into her private part. In the recorded statement she also said that he put his private part in her private part, but on the stand she only testified to the digital penetration. The 11510 statement is substantive so defendant was properly convicted on both counts. In Crawford, the Court dispensed with the “amorphous notions of ‘reliability’ ” that governed the Roberts Court’s confrontation clause analysis. Instead, the Court held that, regardless of a statement’s reliability, the confrontation clause bars the admission of any outofcourt statement that is “testimonial,” unless (1) the statement’s declarant is unavailable and (2) the defendant was afforded a prior opportunity for cross examination. Therefore any case law before Crawford suggesting that 11510 statements need to be narrowly construed are now rejected. Section 11510 requires the trial court to “find” that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” 725 ILCS 5/115 10(b)(1). The statute does not require that those findings be made in writing, nor does it require those findings to contain any specific level of detail. The court merely tracked the language of the statute and that was found to be sufficient. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 2 Evidence | Other Crimes | Domestic Violence Case Other crimes of a domestic nature are admissible in a general crime that is motivated by domestic violence. People v. Nixon In this trial for aggravated discharge of a firearm and being an armed habitual criminal other crimes evidence of a domestic nature was admitted. The case involved defendant taking shots at the tires of the car of his ex girlfriend and mother to his two children. The victim had fled to Wisconsin and the state had jail phone calls indicating the defendant had something to do with the victim being unavailable for trial. Nonetheless, the State is allowed to admit evidence that defendant had shot her before and also is allowed to admit her hearsay statement of the incident where her tires were shot. Othercrimes evidence is admissible to prove propensity as provided in sections 1157.3, 1157.4, and 11520 of the Code (725 ILCS 5/115 7.3, 1157.4, 11520 (West 2012)). See Ill. R. Evid. 404(b). The trial court also found that evidence of the 2006 shooting was admissible as propensity evidence pursuant to section 1157.4 of the Code (725 ILCS 5/1157.4 (West 2012)), which allows the admission of othercrimes evidence in domesticviolence cases. Section 103(3) of the Act defines “domestic violence” as “abuse.” 750 ILCS 60/103(3). “Abuse,” in turn, is defined as “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” 750 ILCS 60/103(1). Contrary to defendant’s argument, the evidence surrounding the charged offenses establishes that the 2012 shooting constituted an act of domestic violence as that term is defined in the Act. First, the car shooting shooting constituted “physical abuse.” For purposes of section 1157.4 of the Code (725 ILCS 5/1157.4), “physical abuse” includes “knowing or reckless use of physical force” as well as “knowing or reckless conduct which creates an immediate risk of physical harm” (750 ILCS 60/103(14). The car shooting constituted knowing or reckless conduct creating an immediate risk of physical harm because the gun was fired in the direction of the house which had people in it. See People v. Garcia, 407 Ill. App. 3d 195, 20102 (2011) (discussing harm created by act of firing bullets in the direction of an occupied building). Therefore, it constituted “physical abuse” as defined in the Act. Defendant’s conduct on the day of the shooting also constituted “harassment” as that term is defined in the Act. “Harassment” is “knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the [victim].” Here, the evidence presented at trial clearly established that defendant’s conduct in the hours leading to the car shooting subjected the victim to “harassment.” The evidence of the 2006 shooting established defendant’s continuing animosity toward her, his intent to harm her, and a motive—defendant’s desire to assert control over his relationship with her. Additionally, The doctrine of forfeiture by wrongdoing is a commonlaw doctrine. People v. Hanson, 238 Ill. 2d 74, 96 (2010); People v. Peterson, 2012 IL App (3d) 100514B, ¶ 20. Under this doctrine, “one who obtains the absence of a witness by wrongdoing April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 3 forfeits the constitutional right to confrontation.” The Illinois Supreme Court has also recognized that the doctrine serves both as an exception to the hearsay rule and to extinguish confrontation claims. Illinois Rule of Evidence 804(b)(5) provides an exception to the rule against hearsay for “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Ill. R. Evid. 804(b)(5) When the State raises the doctrine of forfeiture by wrongdoing, it must prove both the wrongdoing and the intent to procure the unavailability of the declarant. The telephone conversations between defendant and others show a concerted effort on the part of defendant and others to ensure that the victim did not testify or appear in court. Go to case. Trial | Batson Challenge Trial court properly accepted race neutral reasons for excluding minority jury members. People v. Shaw Defendant is African American and was on trial for drug charges. The prosecution excluded two African Americans from the jury. The State said that when the question came up could you find the defendant guilty, there was a juror with a long pause, there was a look, the Court actually had to repeat the question. In regards, to the second African American the state recalled that it had initially sought to remove her for cause because she was friends with defendant’s cousins and nieces. In addition, the State noted her boyfriend had pending cases and was represented by the public defender’s office. The trial court found that defendant has not shown purposeful discrimination. The Court found that the prosecutor was credible and that the prosecutor’s demeanor did not show discriminatory intent, but merely showed strategic decisions. Furthermore, the reviewing court found the trial court was justified in finding that both jurors demonstrated demeanor that exhibited the basis for the strike by the prosecutor. Go to case. Trial | Sufficiency of the Evidence Out of control 2 year old rescues defendant from a conviction for contributing to the delinquency of a child. People v. Gharrett Defendant was at the SOS office so his newlywed could change her name. When his 2 year old step daughter ran into the back office, defendant followed to retrieve her. On his way out he snatches a bundle of cash and checks in a desk drawer. It’s all on video. He is convicted of 12 April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 4 years for burglary and 10 years for contributing to the delinquency of a child. A person commits contributing to the criminal delinquency of a child when they, a person 21 years of age or older, “with the intent to promote or facilitate the commission of an offense solicits, compels or directs a minor in the commission of the offense that is *** a felony when the minor is under the age of 17 years ***.” 720 ILCS 5/12C30(b)(i). The video shows defendant leaning in to talk to the child. The state argued he told her to run toward the office, which allowed defendant to enter the office and commit a theft without raising the suspicions of the SOS employees. The kid was basically running around everywhere. Previously, she wandered all over the SOS building and, in particular, into the office without any prompting from defendant. Given that context, the evidence was insufficient to prove beyond a reasonable doubt that the child’s running to the office area was the result of defendant’s directing her to do so. Additionally, lay witness opinion testimony was admitted that allowed a witness to describe what was depicted in the video. Namely that defendant was carrying an object in his right hand that was “consistent with the pile or wad of cash and checks”. Go to case. Trial | Shackling | Sex Case | Other Crimes Shackling of defendant during bench trial in this child sex case leads to reversal.People v. Williams In general, shackling the accused should be avoided. People v. Boose, 66 Ill. 2d 261, 265 (1977). A defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial. Although the possibility of prejudicing the jury is a factor to be considered, the reasons for forbidding shackling are not limited to trials by jury. Here, there is no indication that the trial court conducted a Boose analysis before keeping the defendant in shackles during his trial. Thus, the defendant proved a due process violation which amounted to error by showing that he was required to be restrained without the court having first determined that it was necessary. Reversal is required because this was a close case and there is no indication that the the trial court conducted any type of a Boose hearing. In fact, the trial court suggests that the defendant was in shackles due to a blanket policy of the court. Since there was no evidence of any threats or disturbances in the record, the trial court made the statement that suggests a blanket policy, and there was no hearing for which we can remand for a more complete record, we reverse and remand for a new trial. Also, this child is allowed to testify in the judge’s chambers which could also have been a problem. 725 ILCS 5/11511 permits a limited closure of a courtroom during the testimony of minors who are the victims of certain sex crimes. See also People v. Falaster, 173 Ill. 2d 220, 226 (1996). The trial court must make a April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 5 finding that anyone with an interest in the case would also be allowed to go into chambers for the testimony. Go to case. Defense | Compulsion No ineffective assistance of counsel for failing to instruct the jury on compulsion. People v. Orasco This was a murder and attempt murder conviction. It’s robbery in the victim’s home and they are executed to prevent them from calling the police. Female victim, however, does not die as the bullet remains lodged in her head. Defendant claimed in his police interview that the codefendant made him do it, by pointing the gun at him and threatening to kill him if he tried to run or told police. Trial strategy focused on claiming elements of accountability were not met then pivoted to an argument that defendant only acted out of fear for his own life. The affirmative defense of compulsion is available when a defendant has committed criminal acts under a reasonable belief that death or great bodily harm would be inflicted upon him if he refused to commit the acts. 720 ILCS 5/711. Here, counsel’s failure to tender an instruction did not prejudice defendant. The evidence did not establish that defendant committed the acts constituting any of his offenses under threat of great bodily harm or death. Further, any potential compulsion arose from the fault of defendant. Finally, Defendant failed to withdraw from the criminal enterprise when he had the perfect opportunity to do so. Go to case. Gun | Armed Habitual Conviction Attempted residential burglary is not a forcible felony that can be used to sustain an armed habitual criminal conviction. People v. Sanderson The Code defines “forcible felony” as follows: “[T]reason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.” An unenumerated felony falls within the residual clause if the defendant “contemplated that the use of force or violence against an individual might be involved and [was] willing to use such force or violence.” (Emphasis in original.) People v. Belk, April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 6 203 Ill. 2d 187, 196 (2003). But the defendant need not actually inflict physical injury. Additionally,because every attempted murder involves a specific intent to cause death, the trier of fact who finds a person guilty of attempted murder must find that the guilty person contemplated the use of sufficient force to cause very serious injury, injury that can lead to death. Accordingly, the court held that every attempted murder qualifies as a forcible felony for purposes of the armed habitual criminal statute. A felony can qualify as a forcible felony, even if a crime does not have violent intent as an element, is if the State proves that under the particular facts of this case, the defendant contemplated the use of force and was willing to use it. Defendant’s conviction for attempted residential burglary is neither by definition nor by circumstance a forcible felony. None of the elements of attempted residential burglary requires that the defendant contemplate the use of violence. Second, there is no evidence that, under the particular facts of this case, Defendant contemplated the use of force. Go to case. Procedure | Conflict of Interest | Corrupt Judge Postconviction petition alleging corrupt trial judge is dismissed. People v. Gacho The trial judge conducting this murder trial actually was convicted of accepting bribes. However, defendant’s case was not a “fixed” case. The gist of the claim was that a codefendnat paid the judge $10,000 for a not guilty in his case. If true that meant the judge could not be fair in defendant’s case. Also, defendant said he could not raise $60,000 to pay the judge and because of that the judge could not have been fair. In sustaining the dismissal of this postconviction petition the reviewing court found that defendant failed to produce any direct evidence that the judge was, in fact, bribed by the codefendant. The trial attorney denied that he ever talked to defendant or his family about a $60,000 bribe & defendant’s story about the codefendant saying he paid $10,000 but got convicted anyway also does not add up. If the judge possessed a pecuniary interest in the outcome of the defendant’s trial, the defendant would be entitled to relief under the Act in the form of a new trial. Defendant did not prove this up sufficiently. The fact that the judge was bribed in some cases does not establish that he was not impartial in others. The judge’s pattern of bribe taking cannot alone support an inference that he engaged in compensatory bias in the defendant’s case. A defendant must still “who alleges that his trial judge’s corruption violated his right to a fair trial must establish (1) a ‘nexus’ between the judge’s corruption or criminal conduct in other cases and the judge’s conduct at [the defendant’s] trial; and (2) actual bias resulting from the judge’s extrajudicial conduct.” See the dissent for a strong counter argument. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 7 Procedure | Statute of Limitations Does the statute of limitations bar a charge of violation of bail bond when defendant is apprehended 18 years later?People v. Casas No it doesn’t. Defendant was on the lamb for 18 years for a drug case. He came back and was arrested, sentenced to 20 years on the drug thing, and then charged with violation of his 1996 bail bond. 720 ILCS 5/3210(a). Most felony offenses must be charged “within 3 years after the commission of the offense.” 720 ILCS 5/35. A continuing offense tolls the threeyear limitations period as follows: “When an offense is based on a series of acts performed at different times, the period of limitation prescribed by this Article starts at the time when the last such act is committed.” 720 ILCS 5/38. According to the State, the limitations period was tolled when the offense was initially committed, and began to run once defendant was taken into custody. This court said that the legislature intended that, like escape, violation of bail bond would be treated as a continuing offense. Like escape, wherever else the bailbond offender is, he is not where he is lawfully supposed to be; he has breached his lawful custody. People v. Grogan, 197 Ill. App. 3d 18 (1st Dist. 1990) was wrong. Any other ruling would give defendant an unmerited winful in that it would encourage a defendant “to remain in hiding until the threeyear statute of limitations had expired” and the underlying case itself could be weakened. Go to case. Procedure | Speedy Trial What happens when defendant demands a trial within 120 days but continues to file motions? People v. Lilly Although, defendant was adamant about wanting his 120 days, he also was pretty persistent with his pro se motion filing. “For purposes of a speedytrial question, a delay is charged to [a defendant] where his act in fact causes or contributes to the delay.” Further, our supreme court has held that where a defense attorney requests or agrees to a continuance on behalf of a defendant, the resulting delay is attributable to the defendant even if the defendant did not agree with the continuance. Here, a new public defender was appointed to represent defendant and he simply could not be ready for trial on the date that already had been set. Where a defendant fails to “promptly repudiate an attorney’s unauthorized act upon receiving knowledge of the same, the defendant effectively ratifies the act.” Further, an agreed continuance tolls the speedy trial period. An express agreement to a continuance on the record is an affirmative act attributable to the defendant. Defendant failed to promptly repudiate defense counsel’s actions. Indeed, defendant responded that it was “fine” when the trial court told defendant that the April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 8 motion for bond reduction would be heard the following week. Although defendant was saying he wanted his 120, he was still agreeing to continuances and requesting bond reduction hearings; these dates were all attributed to him. Any type of motion filed by defendant which eliminates the possibility that the case could immediately be set for a trial also constitutes an affirmative act of delay attributable to defendant. As defendant’s motion needed to be resolved, it eliminated the possibility that the case could immediately proceed to trial. Further, the court could not construe defendant’s subsequent statement that he wanted to “use [his] 120” as an objection to the continuance. Section 1035(a) places the responsibility on a defendant to take affirmative action when he becomes aware that his trial is being delayed by objecting to the delay via a written demand for trial or an oral demand for trial on the record in order to prevent the speedy trial clock from tolling. “Defendant’s contention illustrates what the Cordell court sought to prevent, the use of section 1035(a), not as a shield to protect defendant’s right to a speedy trial, but as a sword to defeat his conviction.” Go to case. Procedure | Krankel Hearing After remand, trial judge gets to the bottom of Defendant’s Krankelcomplaint even though trial counsel was in Mexico.People v. Willis This case was sent back to the trial level so the judge could conduct a Krankel hearing, otherwise the murder conviction stands. Once set back, defendant told the judge his trial attorney was ineffective because he did not ask for a lesser included instruction on second degree murder or involuntary manslaughter. The trial court denied a new trial or an appointment of new counsel because he found this decision to be a matter of trial strategy. This time record showed that the court fully considered Defendant’s pro se claim of ineffective assistance by discussing the claim with him, and evaluating the claim based on its knowledge of defense counsel’s performance and the insufficiency of the claim on its face. Although, trial counsel filed a motion on his own ineffectiveness for not securing a witness. The defendant did not bring up that issue when the trial court finally gave him a chance to bring up his complaints. Thus, the trial judge met his Krankel obligations. Go to case. Sentencing | Life Sentence This discretionary life sentence for 17 year old defendant stands. People v. Walker April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 9 Defendant shot a cab driver in the back of the head with a sawed off shotgun in 1984. He was sentenced to a discretionary life sentence. Defendant’s 2013 postconviction petition was denied because the trial court found that the original trial court had considered defendant’s youth and other relevant factors before sentencing. The trial court also declined to extend Miller to defendant’s case, reasoning that Miller applies to mandatory life sentences, not discretionary ones. First, the petition was untimely. Reviewing court did not agree that this strand of argument has only been available to criminal defendants since the Supreme Court decided Miller. A juvenile’s relative lack of fault, in comparison to their adult counterpart, is not an intellectual breakthrough that came to light solely in the wake of Miller. Second, Miller only says no mandatory life sentences for juveniles. Trial courts must consider the youth’s age. This was a discretionary life sentence were the judge followed the mandates of Miller. The facts of the case matter. Leon Miller was a lookout during a robbery which he played no part in planning, had approximately one minute to contemplate his decision to participate, and never handled a gun in the course of the offense. He was “the least culpable offender imaginable.” This defendant was the triggerman. He planned his acts before deliberately putting them into action. The murder was horribly mutilating to the body of the victim, and was performed coldbloodedly without any provocation, real or imagined, on the part of the victim. Go to case. Sentencing | Fines | Postconviction | 2‐1401 Petition Trial court vacated fines and fees after defendant files a civil 21401 petition. People v. Hible Here, both parties challenge the entry of fines by the circuit clerk for the first time on appeal. People v. Castleberry, 2015 IL 116916, does not prevent the court from vacating the fines imposed by the circuit clerk in this case. Fines imposed by the circuit clerk are still void. The clerk possesses no power or jurisdiction to render a judgment, but only to enter it under the express or implied order of the judge, in the exercise of judicial power. The judgment rendered by him is, therefore, unauthorized and void. While the circuit court has original jurisdiction, jurisdiction for sentencing is limited to the judge. The circuit clerk is prohibited from entering judgment. This court has held the clerk of court is a nonjudicial officer and has no power to impose sentences or levy fines. Therefore, under a section 21401 petition, void judgments can be challenged beyond the twoyear time limit. A void judgment is one entered without jurisdiction and can be challenged at any time or in any court, either directly or collaterally. The reviewing court has jurisdiction to address this issue for the first time on appeal. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 10 Sentencing | Fines Reviewing court vacates more fines imposed by the circuit clerk.People v. Strong Defendant got 4 years for DWLS. The trial court made no mention of fines, stating only that “judgment enters for costs of prosecution.” Similarly, the court made no mention of fines in its written sentencing order. Then, a fines and fees sheet featuring 20 monetary assessments imposed against defendant appeared in the record. $150 of the listed “assessments” are in fact fines that must be vacated. They were: a $20 Violent Crime Victims Assistance Fund assessment, a $50 court systems fee, a $10 arrestee’s medical costs fund assessment, a $15 State Police Operations Assistance Fund assessment, a $15 drug court fee, a $30 Children’s Advocacy Center assessment, and a $10 State Police Services Fund assessment. Each of the assessments identified by defendant is, indeed, a fine. See People v. Johnson, 2015 IL App (3d) 140364, (appendix). Fines imposed by circuit clerks are “void from their inception.” Go to case. Postconviction | Sex Case A strictly statutory error does not rise to the level of a constitutional error. People v. Rademacher In his postconviction petition defendant argued that the trial court deprived him of his constitutional right to a fair sentencing hearing when it considered in aggravation evidence unsupported by the record. Specifically, defendant contended that the crimes were committed in the parsonage, which does not constitute a “place of worship” under the aggravating factors statute. 730 ILCS 5/553.2(a)(11). He was a youth minister. This argument failed because it was not of sufficient constitutional dimension. There must be a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both. Any such error is one created solely by statute. Defendant here allowed his victims to spend the night at his house, which was property owned by the church. He proceeded to perform sexual acts on the victims in that house before taking them to church the next morning. That the trial court reasonably cited this pattern of behavior in aggravation does not offend either the federal or state constitution. Any purported error was only committed insofar as the facts of defendant’s case do not line up with the language and definitions set forth in subsection (a)(11) of the aggravating factors statute. 730 ILCS 5/553.2(a)(11). In other words, but for the existence of that statute, there could be no claim of error. Accordingly, the issue raised by defendant is one of statutory construction, and is not an issue of constitutional deprivation. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 11 Postconviction Dismissal of this postconviction petition was improper.People v. Russell He is saying his postconviction counsel failed to provide him with a reasonable level of assistance in that he failed to amend one of his postconviction claims in order to avoid dismissal on the basis of waiver. Specifically, defendant argues that the claim that the trial court erred in admitting evidence of other crimes and prior bad acts should have been amended to claim that the waiver of the claim was due to ineffective assistance of appellate counsel. Rule 651(c) requires that appointed postconviction counsel make any amendments that are necessary for an adequate presentation of petitioner’s contentions. It is considered routine for postconviction counsel to amend the petition to allege ineffective assistance of counsel. The failure of postconviction counsel to make this routine amendment, which contributed directly to the dismissal of the petition without an evidentiary hearing, rebutted the presumption of reasonable assistance created by the filing of the certificate of compliance with Rule 651(c). Further, a defendant is not required to make a positive showing that his counsel’s failure to comply with Rule 651(c) caused prejudice. People v. Ross, 2015 IL App (3d) 130077, ¶ 15. Instead, where postconviction counsel failed to fulfill the duties of Rule 651(c), remand is required, regardless of whether the claims raised in the petition had merit. Postconviction counsel’s noncompliance with Rule 651(c) may not be excused on the basis of harmless error. Dismissal of petition is reversed and Defendant is allowed new counsel. Go to case. Postconviction Trial court was correct to dismiss the 21401 petition. People v. Rolfe The proof of service, attached to his petition, states only that it was placed the prison mail system to be mailed to the clerk of the circuit court. The proof of service says nothing, one way or the other, about serving the petition on the State. He argues the petition is unripe for adjudication until 30 days pass after service of the petition on the State pursuant to Illinois Supreme Court Rule 105, and he represents he has not yet served the petition on the State. The supreme court explained that, as the appellant, the defendant “ha[d] the burden to present a sufficiently complete record such that the court of review [could] determine whether there was the error claimed by the appellant.” Without a record affirmatively showing the claimed error, a April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 12 court of review would presume the trial court followed the law. “To serve as a basis for [the] defendant’s contention of error, [the proof of service had to] affirmatively establish that [the] defendant mailed his petition via some means other than certified or registered mail.” It did not do so, so this dismissal was proper. See People v. Carter, 2015 IL 117709. The silence of the record is not the affirmative showing of error required of an appellant. Defendant never asked the trial court to reconsider its decision on the ground that he had not yet served the State. See 735 ILCS 5/21203(a). Any section 21401 petitioner who seeks to use, on appeal, his own error, by way of allegedly defective service, in an effort to gain reversal of a circuit court’s sua sponte dismissal of his or her petition on the merits, must affirmatively demonstrate the error via proceedings of record in the circuit court. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 13