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Petitioner, charged with six counts of violating an order of protection and two related counts of witness harassment, pleaded guilty to two charges with the understanding that the others would be dropped and his sentences would be served concurrently. On witness harassment, a Class 2 felony, he was sentenced to five years in prison plus two years of mandatory supervised release (MSR). For violation of an order of protection, a Class 4 felony, he was sentenced to three years in prison. A sentence for violating an order of protection must include a four-year MSR term, 730 ILCS 5/5-8-1(d)(6), but no term of MSR connected to that conviction was mentioned during plea negotiations, the sentencing hearing, or in the sentencing order. Petitioner completed his prison sentences on September 23, 2015. He was “violated at the door” for failure to identify a suitable host site for electronic monitoring. He had accrued day-for-day credit for serving MSR while incarcerated. His two-year MSR term was to end on December 23, 2016, but the government asserted that his sentence included a four-year MSR term by law that did not start until after the five-year prison sentence, giving him a discharge date of December 23, 2017. The Illinois Supreme Court held that the MSR term is included in the sentence as a matter of law and that the failure to include it in the sentencing order does not invalidate the sentence. Although neither the prosecutor nor the court could allow petitioner to avoid the MSR term, the parties believed petitioner was pleading guilty in exchange for a sentence of seven years in custody and two years of MSR. However, petitioner declined an opportunity to withdraw his guilty plea and has not proven a right to have his sentence reconfigured. View "Round v. Lamb" on Justia Law

Posted in: Criminal Law

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Defendant was arrested when a Chicago police officer observed a revolver in defendant’s waistband. Police discovered that defendant lacked a Firearm Owner’s Identification (FOID) card. Defendant was charged: Counts I and III alleged that defendant carried a loaded, uncased, immediately accessible firearm (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A)), and counts II and IV alleged that he did so without a FOID card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C)). After defendant’s arrest, the Illinois Supreme Court issued its 2013 “Aguilar” decision, holding that section 24-1.6(a)(1), (a)(3)(A), (d)(1) was facially unconstitutional because it violated the right to keep and bear arms, as guaranteed by the U.S. Constitution. The state entered a nolle prosequi on counts I and III. The circuit court granted defendant's to quash his arrest and suppress evidence with respect to counts II and IV on the ground that the officer only had probable cause to believe defendant was violating the statutory sections that were declared unconstitutional, so that probable cause was retroactively invalidated. The appellate court affirmed. The Illinois Supreme Court reversed. The void ab initio doctrine did not retroactively invalidate probable cause for defendant’s arrest because probable cause was predicated on a statute that was subsequently declared unconstitutional on federal grounds. Federal case law holds that probable cause for arrest would not be retroactively invalidated by subsequent declaration of a statute’s unconstitutionality on federal grounds. To hold that the void ab initio doctrine requires retroactive invalidation of probable cause would be tantamount to a repeal of the statute, which would violate separation of powers. View "People v. Holmes" on Justia Law

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Gaither, a La Salle County State’s Attorney special investigator and part of a team (SAFE) intended for “drug interdiction team primarily on Interstate 80,” conducted a traffic stop against each defendant on I-80; each stop resulted in the discovery of a controlled substance. Each defendant moved to suppress evidence contending that Gaither lacked the authority to conduct traffic stops because State’s Attorney Towne failed to comply with 55 ILCS 3-9005(b)’s mandatory procedures in hiring Gaither or that section 3-9005(b) did not authorize Gaither to conduct traffic stops. The statute provides: “The State’s Attorney of each county shall have authority to appoint one or more special investigators to serve subpoenas, make return of process and conduct investigations which assist the State’s Attorney in the performance of his duties.” The circuit court granted each defendant’s motion to suppress, holding that section 3-9005(b) required strict compliance with its background verification procedures before Gaither’s appointment and that the requirements were not met. The appellate court found that the conduct of the SAFE unit and Gaither exceeded the scope of section 3-9005(b). The Illinois Supreme Court affirmed. To construe section 3-9005(b) as the state urges would promote confusion between the functions of general law enforcement and assisting a State’s Attorney in the performance of his duties. The State’s Attorney’s common-law duty to investigate suspected illegal activity did not apply because Towne made no showing that law enforcement agencies inadequately dealt with such investigation or that any law enforcement agency asked him for assistance. View "People v. Ringland" on Justia Law

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The City of Chicago, charged defendants, members of the “Occupy Chicago” movement, with violating the Chicago Park District Code, which closes all Chicago public parks between 11 p.m. and 6 a.m. and prohibits people from being inside any park during these hours. The circuit court of Cook County dismissed the charges, finding the ordinance unconstitutional on its face and as applied to the defendants. The appellate court reversed, holding that the ordinance did not violate the defendants’ First Amendment right to assembly. On remand for review under the state constitution, the appellate court again reversed. The Illinois Supreme Court affirmed, first holding that the Illinois Constitution of 1970 is to be interpreted and applied in lockstep with the federal precedents interpreting and applying the assembly clause of the First Amendment of the U.S. Constitution. In arguing that the state constitution provided greater protection, the defendants forfeited any claim that the appellate court failed to properly conduct intermediate review under the applicable First Amendment jurisprudence. View "People v. Alexander" on Justia Law

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Nelson, and her codefendants, Hall, Cox, and Ball, were tried simultaneously but in severed bench trials for the armed robbery and stabbing death of Wilson. The prosecution produced five eyewitnesses, who gave generally consistent testimony. Police had followed a blood trail to the four defendants. There was DNA evidence linking defendants to the crime. All were found guilty. The appellate court rejected Nelson's argument that she was denied her sixth amendment right to conflict-free counsel where attorneys from the same law firm represented her and codefendant Hall and that the attorneys, in making their choice of defenses, decided to forgo asserting an innocence defense in favor of pursuing a joint defense of self-defense. The Illinois Supreme Court affirmed, finding that Nelson had not demonstrated an actual conflict. In light of the evidence, Nelson could not show that an innocence defense based on a lack of accountability was a plausible alternative defense. View "People v. Nelson" on Justia Law

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Sebby was involved in a confrontation with deputies who had come to his home to take custody of Sebby’s niece. Sebby was convicted by a jury of resisting a peace officer, a Class 4 felony, 720 ILCS 5/31-1(a-7), and sentenced to two years’ imprisonment. On appeal, the defendant argued that the trial court committed erred in admonishing prospective jurors under Illinois Supreme Court Rule 431(b), which concerns the defendant’s presumption of innocence and the state’s burden of proof, and that, despite his failure to object to that error, he was entitled to a new trial because the evidence was closely balanced. The appellate court affirmed. The Illinois Supreme Court reversed, concluding that the evidence was closely balanced. The deputies’ testimony was largely consistent, but so was the testimony of Sebby and his witnesses. Neither account of that morning’s events was fanciful. Prejudice rests not upon the seriousness of the error but upon the closeness of the evidence. View "People v. Sebby" on Justia Law

Posted in: Criminal Law

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Fee-sharing provisions in otherwise valid retainer agreements between clients and two separate law firms are not unenforceable simply because the primary service performed by one firm is the referral of the clients to the other and the agreements fail to specifically notify clients that each firm has assumed joint financial responsibility for the representation. In 2007-2010, Plaintiff, a Gurnee law firm, was retained by 10 clients for representation under the Workers’ Compensation Act. Plaintiff contracted with attorney Esposito for assistance in representing the clients before the Workers’ Compensation Commission. A letter of understanding was drafted by defendant, confirming that the cases had been referred to defendant by plaintiff, outlining the parties’ respective responsibilities regarding representation of the clients, and specifying that the attorney fees obtained in each case would be split between Plaintiff and Esposito. The agreements did not specifically notify the clients that the lawyers in each firm had assumed joint financial responsibility for the representation. Plaintiff’s breach of contract suit against Esposito was dismissed. The Illinois Supreme Court affirmed the appellate court’s reversal, rejecting an argument that the agreements’ lack of an express statement that the attorneys assumed joint financial responsibility violated Rule 1.5(e) of the Illinois Rules of Professional Conduct and thereby rendered the agreements invalid. View "Ferris, Thompson & Zweig, Ltd. v. Esposito" on Justia Law

Posted in: Contracts, Legal Ethics

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Successor agent owed no fiduciary duties to principal before occurrence of contingencies stated in power of attorney. Ruth was named as executor of the estates of her parents, Thomas and Doris, following their deaths in 2012. As executor, Ruth filed two actions on behalf of the estates against her brother, Rodney, involving quitclaim deeds signed by Thomas in 2011 which conveyed farmland to Rodney. At the time of these transactions, Rodney was designated as the successor agent under both Thomas’s and Doris’s powers of attorney. The estates alleged that Rodney breached his fiduciary and statutory duties as an agent by personally benefitting from the real estate transactions. The Grundy County circuit court dismissed both actions. The appellate court affirmed the dismissal of the action involving Thomas’s estate and reversed with respect to Doris’s estate. The Illinois Supreme Court concluded that both actions were properly dismissed. The plain language of Thomas’s power of attorney appointed Rodney as agent only upon the occurrence of a specific contingency. Rodney’s authority to act on behalf of Thomas did not arise until Doris died, became incompetent, or became unwilling to act as an agent. Until that time, Rodney owed no fiduciary duties to Thomas. View "In re Estate of Shelton" on Justia Law

Posted in: Trusts & Estates

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Illinois High School Association (IHSA), which governs interscholastic athletic competitions for public and private secondary schools, is not a “public body” under the Freedom of Information Act (FOIA), 5 ILCS 140/2. Founded in 1900, IHSA is a private, not-for-profit, unincorporated association with over 800 public and private high school members. IHSA establishes bylaws and rules for interscholastic sports competition, enforces those rules, and sponsors and coordinates post-season tournaments for certain sports in which member schools choose to compete. Any Illinois private or public high school may join IHSA if it agrees to abide by IHSA rules. There is no requirement that public schools constitute a certain percentage of IHSA membership and no requirement that public schools join IHSA. IHSA does not govern all sports or extracurricular activities of the member schools. It does not supervise intramural sports or most club sports. It is not involved in regular season interscholastic contests among the member schools. The Better Government Association submitted a FOIA request to IHSA for all of its contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for two fiscal years. The trial, appellate, and Illinois Supreme Court agreed that IHSA is a not-for-profit charitable organization and not subject to the FOIA. View "Better Government Association v. Illinois High School Association" on Justia Law

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Appellate court erroneously declined to consider ineffective assistance of counsel claim on direct review where record was sufficient for consideration of that claim. A Coles County jury found Veach guilty of two counts of attempted murder, rejecting his theory that someone else committed the crimes. On direct review, defendant argued that his trial counsel was ineffective for stipulating to the admission of recorded statements of the state’s witnesses. The appellate court affirmed, finding the record inadequate to resolve the issue. The majority encouraged defendant to raise the issue in a postconviction petition. The Illinois Supreme Court reversed, holding that the record was sufficient for the appellate court to consider defendant’s ineffective assistance of counsel claim on direct review. The state had conceded that the appellate court should have addressed the claim, but argued that counsel’s decision to stipulate to the witnesses’ recorded statements was not prejudicial nor was it deficient performance. In Illinois, a defendant must generally raise a constitutional claim alleging ineffective assistance of counsel on direct review or risk forfeiting the claim; issues that could have been raised and considered on direct review are deemed procedurally defaulted. View "People v. Veach" on Justia Law