SUMMARY OF CRIMINAL CASES

PENDING IN THE ILLINOIS SUPREME COURT

February 2019

Prepared by:

Leah M. Bendik Criminal Appeals Division

Illinois Attorney General=s Office

TABLE OF CONTENTS (New Cases Appear in Bold)

(New Opinions Designated with ** asterisk and Italic)

Edwards v. Hon. Atterberry ..................... 17 People v. Abdullah ............................ 12, 14 People v. Aikens ..................................... 10 People v. Ashley ................................. 2, 11 People v. Austin ........................................ 1 People v. Bates ..................................... 10 People v. Boose ........................................ 4 People v. Brown, Jerry ............................ 13 **People v. Brown, Pernell ...................... 15 People v. Brown, Vivian ............................ 2 People v. Buffer ................................ 11, 15 **People v. Clark, Dennis ........................ 11 People v. Clark, Elizabeth ......................... 1 People v. Coty ....................................... 10 People v. Custer ....................................... 9 People v. Drake ...................................... 14 People v. Eubanks ............................ 4, 6, 7 **People v. Gawlak ................................. 17 People v. Gayden ................................... 16 People v. Greco ........................................ 2 People v. Griffin ...................................... 13 People v. Jackson ............................... 8, 9 People v. Johnson, Darren ........................ 3

**People v. Johnson, Octavius ................... 5

People v. Kimble ...................................... 13

People v. King .......................................... 8

People v. Lindsey ..................................... 4

People v. Lusby ................................ 11, 16

**People v. Manzo, Jr. ............................... 3

People v. Morger ...................................... 12

People v. Murray ........................................ 6

People v. Radford .......................... 6, 7, 14

**People v. Relwani ................................... 5 People v. Rios-Salazar ......................... 9, 12 People v. Smith ........................................ 13 People v. Webb.......................................... 2 **People v. Witherspoon ............................ 1

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I. VALIDITY OR APPLICATION OF STATUTES/COURT RULES

A. NON-CONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES No. 123910

People v. Bethany Austin, direct State appeal from declaration of unconstitutionality by McHenry County Circuit Court; in briefing Whether the circuit court erred in declaring facially unconstitutional 720 ILCS 5/11-23.5(b) (non-consensual dissemination of private sexual images); specifically, the court held that the statute violated the First Amendment because it regulated protected speech, was not content neutral, and could not survive strict scrutiny.

Prosecutor: Garson Fischer, Assistant Attorney General, Chicago. Defense counsel: Igor Bozic, West Dundee.

B. HOME INVASION

**No. 123092 People v. Marcelus Witherspoon, State appeal allowed 3/21/18 from 2017 IL App (4th) 150512, 92 N.E.3d 594 (Dec. 6, 2017); orally argued 9/12/18 Whether the element in home invasion (720 ILCS 5/19-6(a)(2)) that the offender knowingly enter another’s dwelling place without authority is satisfied by a court order prohibiting that person from entering the dwelling, even when the resident consents to the entry. Supreme Court answer: The Court held that a person who enters in violation of a court order satisfies the “without authority” element. Prosecutor: Eldad Malamuth, Assistant Attorney General, Chicago. Defense counsel: Adrienne River, Assistant Appellate Defender, Chicago. Opinion: 1/25/19—appellate court judgment reversed; circuit court judgment affirmed.

C. ESCAPE No. 122891

People v. Elizabeth Clark, State appeal allowed 1/18/18 from 2017 IL App (3d) 140987, 90 N.E.3d 474 (Nov. 1, 2017); orally argued 9/12/18 Whether the offense of escape (720 ILCS 5/31-6(a)) includes a defendant who is released on a temporary cash recognizance bond directing her, upon release from a halfway house to immediately return to the custody of the county jail, which defendant admits that she did not do. Prosecutor: Eldad Malamuth, Assistant Attorney General, Chicago. Defense counsel: Pamela Rubeo, Assistant Appellate Defender, Chicago.

D. UNLAWFUL USE OF A WEAPON (UUW)

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Nos. 122951 & 122952, cons. People v. Ronald Greco and Isiah Webb, direct State appeal from declaration of unconstitutionality by DuPage County Circuit Court; orally argued 1/15/19 Whether the circuit court erred in declaring unconstitutional the portion of the UUW statute (720 ILCS 5/24-1(a)(4)) addressing tasers and stun guns under the Second Amendment because it imposes a complete ban on carrying them. Prosecutor: Garson Fischer, Assistant Attorney General, Chicago. Defense counsel: Michele Odorizzi, Chicago (Greco); and Christopher Carmichael, Chicago (Webb).

E. FIREARM OWNERS IDENTIFICATION (FOID) CARD ACT

No. 124100 People v. Vivian Brown, direct State appeal from declaration of unconstitutionality by White County Circuit Court; in briefing Whether section 2(a)(1) of the FOID Card Act (430 ILCS 65/2(a)(1)) unconstitutional on its face and as applied under the Second Amendment. The court found two bases for striking the statute. First, the court held that requiring defendant to fill out a form, provide a picture ID, and pay a $10 fee to obtain a FOID card was an as-applied unconstitutional burden on her Second Amendment rights. Second, the court found that compliance with the FOID Card Act was impossible within one’s own home, rendering it facially unconstitutional as to those with guns in their homes. Prosecutor: Garson Fischer, Assistant Attorney General, Chicago. Defense counsel: Ellen Curry, Assistant Appellate Defender, Mt. Vernon.

F. STALKING No. 123989

People v. Marshall Ashley, defense appeal allowed 11/28/18 from 2018 IL App (4th) 150293-U (July 11, 2018); in briefing Whether the criminalization of “threaten[ing]” that knowingly or negligently causes emotional distress through the stalking statute (720 ILCS 5/12-7.3(a), (c)) facially violates the First Amendment because it is overbroad, a question left open in the narrow holding in People v. Relerford, 2017 IL 121094 about “communicat[ions]” in that same statute. Whether the provision is facially invalid under the Due Process Cause because it sweeps in innocent conduct. [Note: after the PLA was granted, defendant withdrew an issue presented faulting the appellate court for failing to hold oral argument (citing under Rule 352) because counsel was unaware that previous counsel on the case had withdrawn the request for oral argument.] Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: Jonathan Yeasting, Assistant Appellate Defender, Chicago.

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G. BURGLARY No. 123318

People v. Darren Johnson, State appeal allowed 5/30/18 from 2018 IL App (3d) 150352, 94 N.E.3d 289 (Jan. 29, 2018); in briefing Whether defendant was not guilty of burglary at WalMart as a matter of law (charged as entering without authority and with intent to commit a felony or theft, see 720 ILCS 5/19-1) because, by entering during business hours and remaining in designated public areas, he did not “enter without authority.” Prosecutor: Eric Levin, Assistant Attorney General, Chicago. Defense counsel: Gilbert Lenz, Assistant Appellate Defender, Chicago.

II. PRELIMINARY PROCEEDINGS A. SEARCH & SEIZURE-FOURTH AMENDMENT

**No. 122761 People v. Jorge Manzo, Jr., defense appeal allowed 11/22/17 from 2017 IL App (3d) 150264, 91 N.E. 3d 894 (Oct. 6, 2017); orally argued 9/12/18

Whether probable cause exists to search a residence based primarily on conduct that occurred in public. The appellate court found a sufficient nexus between the criminal offense and the residence because the warrant alleged that the subject was observed leaving the residence once before a drug transaction drug transaction, drove a car registered to the residence (under another person’s name) to another drug transaction, and conducted two drug transactions in the vicinity of the residence. If the warrant was invalid, whether the good-faith exception to the exclusionary rule applies because the police reasonably relied on the warrant. Supreme Court answer: The Court agreed with defendant that the warrant complaint failed to establish probable cause to search his home because the totality of the circumstances did not reflect a fair probability that evidence of drug dealing would be found there. The drug dealer, Casillas, did not live at the residence, in which drugs and a gun were found in the master bedroom. The majority rejected arguments that the warrant complaint raised a sufficient inference that Casillas would store drug related items at the home. And because the complaint was conclusory, it was a “bare-bones” affidavit, about which the good-faith exception to the exclusionary rule should not apply. Justice Garman, joined by Chief Justice Karmeier and Justice Burke, dissented. The dissenters disagreed on both issues, concluding that the complaint supplied sufficient probable cause under the deferential applicable standard and, if not, justified application of the good-faith exception.

Prosecutor: Leah Bendik, Assistant Attorney General, Chicago. Defense counsel: Editha Rosario-Moore, Assistant Appellate Defender, Ottawa. Opinion: 12/28/18—appellate & circuit court judgments reversed; Justice Garman, joined by Chief Justice Karmeier & Justice Burke, dissenting.

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No. 123494 People v. John Carlos Boose, State appeal allowed 9/26/18 from 2018 IL App (2d) 170016, 100 N.E.3d 167 (Mar. 28, 2018); in briefing Whether the appellate court erred in holding that the search warrant lacked necessary language to incorporate external documents, rendering it invalid. The warrant application complaint included some information and stated, “that complainant has probable cause to believe that aforesaid facts are true for the following reasons: see attached affidavit, which is incorporated by reference herein.” The appellate court majority explained the deficiency only by saying that the complaint “did not expressly adopt the description in the complaint for search warrant” and noted inconsistency in federal cases about limits on incorporation. Alternatively, whether the good-faith exception to the exclusionary rule applies. Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago. Defense counsel: Andrew Smith, Assistant Appellate Defender, Elgin. No. 123525 People v. Ralph Eubanks, State appeal allowed 9/26/18 from 2017 IL App (1st) 142837, ___ N.E.3d ___ (Dec. 26, 2017); in briefing Whether the appellate court erred in declaring facially unconstitutional 625 ILCS 5/11-501.2(c)(2) upon finding that it permits compelled chemical testing without a warrant where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another, contrary to Mo. v. McNeely, 569 U.S. 141 (2013). Whether the appellate court erred in holding that defendant was improperly convicted of failure to report an accident (within 30 minutes of the accident) because it infringed upon his right to remain silent following an arrest (that occurred within 10 minutes of the accident). Whether the appellate court erred in holding that the trial court erred in denying defendant’s request for a jury instruction on the lesser-included offense of reckless homicide, contrary to the applicable abuse-of-discretion standard of review. Prosecutor: Leah Bendik, Assistant Attorney General, Chicago. Defense counsel: Deepa Punjabi, Assistant Appellate Defender, Chicago. No. 124289 People v. Jonathan Lindsey, State appeal allowed 1/31/19 from 2018 IL App (3d) 150877, ___ N.E.3d ___ (Oct. 30, 2018); in briefing

Whether motel guests have reduced expectation of privacy in common areas compared with apartment residents. Whether a dog’s drug detection sniff in the common area of a motel violates a guest’s reasonable expectation of privacy. Whether such a sniff is a search under the 4th Amendment’s property-based test.

Whether officers could conduct the search in good-faith reliance on binding precedent that

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motel guests have reduced expectations of privacy in common areas, i.e., whether the good-faith exception to the exclusionary rule applies. Prosecutor: Eldad Malamuth, Assistant Attorney General, Chicago. Defense counsel: Office of the State Appellate Defender, Chicago.

B. RESCISSION OF SUMMARY SUSPENSION OF DRIVER’S LICENSE

**No. 123385 People v. Daksh Relwani, defense appeal allowed 5/30/18 from 2018 IL App (3d) 170201, 99 N.E.3d 152 (Feb. 21, 2018); orally argued 11/20/18

What evidence must a motorist present to establish a prima facie case that the parking lot on which he was operating a vehicle was a private lot such that statutory summary suspension should not apply. The case here held that the motorist must present evidence that the parking lot was privately owned and maintained, but prior decisions granted rescission upon the motorist providing testimony that he was observed driving in the parking lot of a private business. In other words, such testimony was found in these prior cases to be a prima facie showing, which the State failed to rebut because it failed to present evidence that the parking lots were publicly owned or maintained. Supreme Court answer: The Court explained that the defendant must offer affirmative evidence that he was not on a public highway to support his petition for summary suspension that cites this basis. Defendant’s testimony, the only evidence he offered, was insufficient to constitute a prima facie case. Accordingly, the Court upheld the trial court’s directed finding for the State.

Prosecutor: David Iskowich, Assistant Attorney General, Chicago. Defense counsel: Gal Pissetzky, Chicago. Opinion: 1/25/19—affirmed.

III. PLEAS A. SENTENCING CHALLENGES FOLLOWING NEGOTIATED GUILTY PLEAS **No. 122956

People v. Octavius Johnson, State appeal allowed 1/18/18 from 2017 IL App (4th) 160920, 87 N.E.3d 1073 (Oct. 31, 2017); orally argued 9/12/18 Whether a defendant with a negotiated guilty plea can file a motion to reconsider sentence claiming improper consideration of a factor as inherent to the offense, or whether such a defendant must first move to withdraw his guilty plea. Supreme Court answer: The Court held that a person who enters a negotiated guilty plea cannot challenge the sentence without first moving to withdraw his guilty plea. Prosecutor: Eric Levin, Assistant Attorney General, Chicago. Defense counsel: Daaron Kimmel, Assistant Appellate Defender, Springfield. Opinion: 1/25/19—appellate court judgment reversed in part and vacated in part.

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IV. TRIAL PROCEDURES/EVIDENCE & ARGUMENT

A. JURY INSTRUCTION

No. 123525 People v. Ralph Eubanks, State appeal allowed 9/26/18 from 2017 IL App (1st) 142837, ___ N.E.3d ___ (Dec. 26, 2017); in briefing Whether the appellate court erred in declaring facially unconstitutional 625 ILCS 5/11-501.2(c)(2) upon finding that it permits compelled chemical testing without a warrant where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another, contrary to Mo. v. McNeely, 569 U.S. 141 (2013). Whether the appellate court erred in holding that defendant was improperly convicted of failure to report an accident (within 30 minutes of the accident) because it infringed upon his right to remain silent following an arrest (that occurred within 10 minutes of the accident). Whether the appellate court erred in holding that the trial court erred in denying defendant’s request for a jury instruction on the lesser-included offense of reckless homicide, contrary to the applicable abuse-of-discretion standard of review. Prosecutor: Leah Bendik, Assistant Attorney General, Chicago.

Defense counsel: Deepa Punjabi, Assistant Appellate Defender, Chicago. No. 123975 People v. Tavarius Radford, defense appeal allowed 1/03/19 (upon reconsideration of 11/28/18 PLA denial) from 2018 IL App (3d) 140404, __ N.E.3d ___ (July 13, 2018); in briefing) Whether an improper courtroom closure for the entirety of voir dire can be found too “trivial” to constitute a public trial violation. Whether such a violation is inherently second-prong plain error or whether a defendant must demonstrate that the specific public trial violation rendered his trial fundamentally unfair. Whether the appellate court erred in holding that the trial court did not err in providing jury instructions using the word “willfully,” not “knowingly,” in describing child endangerment (720 ILCS 5/12C-5). Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: Steven Varel, Assistant Appellate Defender, Ottawa.

B. SUFFICIENCY OF EVIDENCE

No. 123289

People v. Deontae Murray, defense appeal allowed 5/30/18 from 2017 IL App (2d) 150599, 94 N.E.3d 212 (modified upon denial of rehearing, Jan. 31, 2018); orally argued 1/16/19

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Defendant was charged with unlawful possession of a firearm by a streetgang member, so the State had to prove that the Latin Kings are a “streetgang” as defined by statute. Under 740 ILCS 147/10, “streetgang” is defined as “any combination, confederation, alliance, network, conspiracy, understanding, or other similar conjoining, in law or in fact, of 3 or more persons with an established hierarchy that, through its membership or through the agency of any member engages in a course or pattern of criminal activity.” The appellate court found sufficient proof of streetgang beyond a reasonable doubt that a police officer testified that the Latin Kings are a streetgang and that they sell drugs and use guns to protect their drugs, cash, and members from rival gangs, and this conclusion is challenged on appeal. Prosecutor: Jason Krigel, Assistant Attorney General, Chicago. Defense counsel: Jennifer Bontrager, Assistant Appellate Defender, Chicago.

C. POST-ARREST RIGHT TO REMAIN SILENT

No. 123525 People v. Ralph Eubanks, State appeal allowed 9/26/18 from 2017 IL App (1st) 142837, ___ N.E.3d ___ (Dec. 26, 2017); in briefing Whether the appellate court erred in declaring facially unconstitutional 625 ILCS 5/11-501.2(c)(2) upon finding that it permits compelled chemical testing without a warrant where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another, contrary to Mo. v. McNeely, 569 U.S. 141 (2013). Whether the appellate court erred in holding that defendant was improperly convicted of failure to report an accident (within 30 minutes of the accident) because it infringed upon his right to remain silent following an arrest (that occurred within 10 minutes of the accident). Whether the appellate court erred in holding that the trial court erred in denying defendant’s request for a jury instruction on the lesser-included offense of reckless homicide, contrary to the applicable abuse-of-discretion standard of review. Prosecutor: Leah Bendik, Assistant Attorney General, Chicago.

Defense counsel: Deepa Punjabi, Assistant Appellate Defender, Chicago.

D. PUBLIC TRIAL RIGHT No. 123975 People v. Tavarius Radford, defense appeal allowed 1/03/19 (upon reconsideration of 11/28/18 PLA denial) from 2018 IL App (3d) 140404, __ N.E.3d ___ (July 13, 2018); in briefing) Whether an improper courtroom closure for the entirety of voir dire can be found too “trivial” to constitute a public trial violation.

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Whether such a violation is inherently second-prong plain error or whether a defendant must demonstrate that the specific public trial violation rendered his trial fundamentally unfair. Whether the appellate court erred in holding that the trial court did not err in providing jury instructions using the word “willfully,” not “knowingly,” in describing child endangerment (720 ILCS 5/12C-5). Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: Steven Varel, Assistant Appellate Defender, Ottawa.

E. EVIDENCE ADMISSIBILITY

No. 123926 People v. Shadwick King, State appeal allowed 1/31/19 from 2018 IL App (2d) 151112, __ N.E.3d ___ (Aug. 21, 2018); in briefing Whether the appellate court erred in making admission of medical expert testimony contingent on training and qualifications, contrary to Illinois Supreme Court precedent. Whether the appellate court erred in finding that medical expert testimony inadmissible also because the proposed testimony indirectly identified defendant (i.e., it was inadmissible profiling evidence). Whether the appellate court erred in finding that evidence of family suffering and the State’s closing argument improperly shifted the burden of proof. Prosecutor: Kathy Doersch, Illinois Attorney General’s Office, Chicago. Defense counsel: Gabriel Fuentes & Clifford Berlow, Jenner & Block, Chicago.

F. CLOSING ARGUMENT

No. 124112 People v. Aaron Jackson, defense appeal allowed 1/31/19 from 2018 IL App (5th) 150274, ___ N.E.3d ___ (Sept. 11, 2018); in briefing

Whether the State’s erroneous participation in a preliminary Krankel inquiry is subject to harmless error review. Whether the trial judge’s preliminary Krankel inquiry involves a full Strickland analysis or merely an evaluation of whether “possible neglect” occurred, and whether the result is subject to de novo or manifest error standard of review.

Whether the State’s closing argument misstated evidence, constituting plain error. Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: Susan Wilham, Assistant Appellate Defender, Springfield.

V. ASSISTANCE OF COUNSEL

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A. EFFECTIVENESS OF COUNSEL

No. 123052 People v. Aaron Rios-Salazar, defense appeal allowed 3/21/18 from 2017 IL App (3d) 150524, 92 N.E.3d 461 (Nov. 20, 2017); orally argued 1/15/19

Whether trial counsel’s failure to object to $57 of monetary assessments was an error of constitutional magnitude. The authoring justice determined that it was not, declining to determine whether the contested charges were fines or fees, appropriate or inappropriate, because the fines were a de minimis amount. The concurring justice concurred in the result because she determined that the defendant was actually undercharged, not overcharged. The dissenting justice disagreed with the authoring justice’s characterization of the improper fines as “de minimis.”

Prosecutor: Nick Moeller, Assistant Attorney General, Chicago. Defense counsel: Dimitrios Golfis, Assistant Appellate Defender, Ottawa.

B. KRANKEL

No. 123339 People v. John Michael Custer, State appeal allowed 9/26/18 from 2018 IL App (3d) 160202, 97 N.E.3d 166 (Feb. 6, 2018); in briefing Whether the appellate court erred in holding that a “Krankel-like” procedure should apply to situations where a defendant makes a claim of unreasonable assistance of postconviction counsel at third-stage postconviction proceedings (i.e., an evidentiary hearing). People v. Krankel, 102 Ill. 2d 181 (1984), requires the trial court to conduct a preliminary investigation into pro se allegations of ineffective assistance of trial counsel; it there is some indication of neglect, new counsel should be appointed to represent the defendant. Prosecutor: Michael Cebula, Assistant Attorney General, Chicago. Defense counsel: Steven Varel, Assistant Appellate Defender, Ottawa. No. 124112 People v. Aaron Jackson, defense appeal allowed 1/31/19 from 2018 IL App (5th) 150274, ___ N.E.3d ___ (Sept. 11, 2018); in briefing

Whether the State’s erroneous participation in a preliminary Krankel inquiry is subject to harmless error review. Whether the trial judge’s preliminary Krankel inquiry involves a full Strickland analysis or merely an evaluation of whether “possible neglect” occurred, and whether the result is subject to de novo or manifest error standard of review.

Whether the State’s closing argument misstated evidence, constituting plain error. Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: Susan Wilham, Assistant Appellate Defender, Springfield.

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No. 124143 People v. Quentin Bates, defense appeal allowed 1/31/19 from 2018 IL App (4th) 160255, 112 N.E.3d 657 (Sept. 27, 2018); in briefing Whether an attorney’s post-trial allegation that s/he was ineffective triggers a Krankel inquiry. Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: Emily Filpi, Assistant Appellate Defender, Chicago.

C. CONFLICT OF INTEREST VI. SENTENCING

A. ART. 1, SEC. 11 OF IL CONST: PROPORTIONATE PENALTIES & REHABILITATION CLAUSES

No. 121558 People v. Jansen Aikens, State appeal allowed 11/28/18 from 2016 IL App (1st) 133578, 63 N.E.3d 223 (Sept. 12, 2016); in briefing The Court will consider two issues about the scope and application of article 1, section 11 of the Illinois Constitution: (1) whether the appellate court erred in finding the mandatory 40-year minimum sentence for attempt murder of a peace officer while discharging a firearm violated the state constitution as applied to the 17-year-old defendant; and (2) whether the appellate court erred in finding defendant’s sentences constitutional under the Eighth Amendment, but violative of the state constitution. Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago. Defense counsel: Caroline Bourland, Assistant Appellate Defender, Chicago. No. 123972 People v. William Coty, State appeal allowed 1/31/19 from 2018 IL App (1st) 162383, 110 N.E.3d 1105 (Aug. 8, 2018); in briefing Whether a de facto natural life sentence (of 50 years) was unconstitutional under the Illinois Constitution (art. 1, § 11) as applied to an adult with intellectual disability. Whether defendant failed to adequately develop the factual basis of this claim in the trial court. Whether the appellate court erred in concluding that the sentence was a de facto natural life sentence and that it did not comport with Miller v. Alabama (if its rationale were extended to the intellectually disabled). Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago. Defense counsel: Daniel Mallon, Assistant Appellate Defender, Chicago.

B. EIGHTH AMENDMENT

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No. 122327 People v. Dimitri Buffer, State appeal allowed 11/22/17 from 2017 IL App (1st) 142931, 75 N.E.3d 470 (Mar. 29, 2017); orally argued 1/15/19 Whether the appellate court erred in finding that defendant’s 50-year sentence (for murder committed when 16 years old) was an unconstitutional life sentence under the Eighth Amendment under Miller v. Ala., because 50 should not be considered a de facto life sentence. Relatedly, whether the Illinois Supreme Court should delineate what length of sentence qualifies as de facto life in all cases. Whether the appellate court erred in ordering a new sentencing hearing rather than remanding for second-stage postconviction proceedings (upon reversing the first-stage dismissal of defendant’s postconviction petition). Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago. Defense counsel: Christopher Gehrke, Assistant Appellate Defender, Chicago. No. 124046 People v. Ashanti Lusby, State appeal allowed 1/31/19 from 2018 IL App (3d) 150189, ___ N.E.3d ___ (Aug. 21, 2018) Whether the appellate court can assess cause and prejudice even when the State improperly provided input about defendant’s motion for leave to file a successive postconviction petition or should reverse the denial and remand for consideration without the State’s input. Whether the appellate court erred in granting collateral relief rather than remanding for second stage proceedings. Whether the appellate court erred in holding that the juvenile offender’s aggregate de facto natural life sentence violates the 8th Amendment based only on the fact that the court did not explicitly say it considered the presentencing investigation report (PSI). Prosecutor: Leah Bendik, Assistant Attorney General, Chicago. Defense counsel: Deborah Nall, Assistant Appellate Defender, Chicago.

C. FINES & FEES

**No. 122495 People v. Dennis Clark, defense appeal allowed 9/27/17 from 2017 IL App (1st) 150740-U (June 16, 2017); orally argued 9/12/18 Whether the following charges, labeled fees, are fines offset by deft’s $5-per-day custody credit: (1) $190 “Felony Complaint Filed, (Clerk)”; (2) $15 “Automation (Clerk)”; (3) $15 “Document Storage (Clerk)”; (4) $25 “Court Services (Sheriff)”; (5) $2 “Public Defender Records Automation”; and (6) “State’s Attorney Records Automation.” Supreme Court answer: During briefing, defendant withdrew his challenge to charge #4, and the State conceded charge #5 was a fine. In its opinion, the Court held that the charges numbered 1, 2, 3, 5, and 6 are all fees (rejecting the State’s concession about #5) because they compensate the State for costs related to the defendant’s prosecution

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that are not, therefore, subject to the defendant’s presentence incarceration credit. In dissent, Justice Neville, joined by Justice Burke, stated that they would have concluded that charges #5 and 6 are fines rather than fees. Prosecutor: Josh Schneider, Assistant Attorney General, Chicago. Defense counsel: Sharifa Rahmany, Assistant Appellate Defender, Chicago. Opinion: 12/28/18—affirmed; Justice Neville, joined by Justice Burke, concurring in part and dissenting in part. No. 123052 People v. Aaron Rios-Salazar, defense appeal allowed 3/21/18 from 2017 IL App (3d) 150524, 92 N.E.3d 461 (Nov. 20, 2017); orally argued 1/15/19

Whether trial counsel’s failure to object to $57 of monetary assessments was an error of constitutional magnitude. The authoring justice determined that it was not, declining to determine whether the contested charges were fines or fees, appropriate or inappropriate, because the fines were a de minimis amount. The concurring justice concurred in the result because she determined that the defendant was actually undercharged, not overcharged. The dissenting justice disagreed with the authoring justice’s characterization of the improper fines as “de minimis.”

Prosecutor: Nick Moeller, Assistant Attorney General, Chicago. Defense counsel: Dimitrios Golfis, Assistant Appellate Defender, Ottawa.

D. FIREARM ENHANCEMENTS

No. 123492 People v. Muhammad Abdullah, defense appeal allowed 9/26/18 from 2018 IL App (2d) 150840, 99 N.E.3d 202 (Feb. 27, 2018); in briefing Rule 606(b) instructs the trial court to strike a timely notice of appeal when a timely motion directed against the judgment has been filed “by counsel or by defendant, if not represented by counsel.” Whether this language includes motions filed by the State or only defense motions. In People v. Morgan, 203 Ill. 2d 470 (2003), the Court held that the statute creating firearm sentencing enhancements for attempt murder was unconstitutional and void ab initio; in People v. Sharpe, 216 Ill. 2d 418 (2005), the Court reversed Morgan and revived the enhancements. Whether a firearm enhancement is void for an attempt murder committed during the period when Morgan controlled. Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: David Harris, Assistant Appellate Defender, Chicago.

E. PROBATION CONDITION: BAN FROM SOCIAL NETWORKING WEBSITES

No. 123643 People v. Conrad Morger, defense appeal allowed 9/26/18 from 2018 IL App (4th) 170285, 103 N.E.3d 602 (Apr. 25, 2018); in briefing

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Whether the appellate court erred in upholding a probation condition banning social networking in light of Packingham v. NC, 137 S. Ct. 1730 (2017), which held that the First Amendment forbids the State from banning people on a sex offender registry from accessing internet social networking websites. Prosecutor: Josh Schneider, Assistant Attorney General, Chicago. Defense counsel: Zachary Rosen, Assistant Appellate Defender, Springfield.

VII. POSTTRIAL PROCEEDINGS

A. MISTRIAL/DOUBLE JEOPARDY

No. 122830 People v. David Kimble, State appeal allowed 3/21/18 from 2017 IL App (2d) 160087, 86 N.E.3d 1245 (Sept. 25, 2017); orally argued 1/15/19 Whether the appellate court erred in reversing the trial court’s denial of defendant’s motion to dismiss charges and bar re-prosecution on double jeopardy grounds where the trial judge ordered the jury to continue deliberating after it stated it was at an impasse after 3 hours, and the jury said so again after 5 hours, at which time the judge granted a mistrial without giving a Prim instruction. (In People v. Prim, 53 Ill. 2d 62, 75-76 (1972), the Illinois Supreme Court set forth a jury instruction that should be given when faced with juries in disagreement). The appellate court held that defendant did not acquiesce or consent to the mistrial and that there was no manifest necessity for the court to declare a mistrial. Prosecutor: Michael Cebula, Assistant Attorney General, Chicago. Defense counsel: Josette Skelnik, Assistant Appellate Defender, Elgin.

B. ONE-ACT, ONE-CRIME RULE

Nos. 123901 & 123902, cons. People v. Stevie Smith and Jerry Brown, State appeal allowed 11/28/18 from 2018 IL App (1st) 151312-B, 110 N.E.3d 274 (June 14, 2018); in briefing Whether the appellate court erred in vacating defendant’s aggravated battery of a senior citizen conviction under the one-act, one-crime rule given his robbery conviction and given that both involved punching the victim, because the court overlooked that the robbery involved a different act: the taking of property. Prosecutor: Erin O’Connell, Assistant Attorney General, Chicago. Defense counsel: Christopher Cronson and Brett Cronson, Waukegan.

VIII. APPEALS A. JURISDICTION

No. 122549 People v. Joseph Griffin, defense appeal allowed 11/22/17 from 2017 IL App (1st) 143800, 82 N.E.3d 186 (June 27, 2017); orally argued 9/12/18

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Whether the appellate court erred in dismissing defendant’s appeal for lack of jurisdiction. Several months after pleading guilty, defendant filed a motion to correct the mittimus that sought additional days of presentencing credit, which was denied. On appeal, for the first time, defendant requested monetary time-served credit against his fines; the appellate court held that it lacked jurisdiction because the trial court’s order was not final and appealable. Prosecutor: Danny Lewin, Assistant Attorney General, Chicago. Defense counsel: Michael Orenstein, Assistant Appellate Defender, Chicago.

No. 123492 People v. Muhammad Abdullah, defense appeal allowed 9/26/18 from 2018 IL App (2d) 150840, 99 N.E.3d 202 (Feb. 27, 2018); in briefing Rule 606(b) instructs the trial court to strike a timely notice of appeal when a timely motion directed against the judgment has been filed “by counsel or by defendant, if not represented by counsel.” Whether this language includes motions filed by the State or only defense motions. In People v. Morgan, 203 Ill. 2d 470 (2003), the Court held that the statute creating firearm sentencing enhancements for attempt murder was unconstitutional and void ab initio; in People v. Sharpe, 216 Ill. 2d 418 (2005), the Court reversed Morgan and revived the enhancements. Whether a firearm enhancement is void for an attempt murder committed during the period when Morgan controlled. Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: David Harris, Assistant Appellate Defender, Chicago.

B. EVIDENCE CONSIDERED

No. 123734

People v. Gerald Drake, State appeal allowed 9/26/18 from 2017 IL App (1st) 142882, ___ N.E.3d ___ (Dec. 15, 2017); orally argued 1/16/19

Whether reviewing courts should consider all evidence presented at trial (in the light most favorable to the prosecution), including improperly admitted evidence, when determining whether a conviction should be reversed outright or remanded for retrial. Prosecutor: Erin O’Connell, Assistant Attorney General, Chicago. Defense counsel: Brett Zeeb, Assistant Appellate Defender, Chicago.

C. PLAIN ERROR

No. 123975 People v. Tavarius Radford, defense appeal allowed 1/03/19 (upon reconsideration of 11/28/18 PLA denial) from 2018 IL App (3d) 140404, __ N.E.3d ___ (July 13, 2018); in briefing) Whether an improper courtroom closure for the entirety of voir dire can be found too “trivial” to constitute a public trial violation.

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Whether such a violation is inherently second-prong plain error or whether a defendant must demonstrate that the specific public trial violation rendered his trial fundamentally unfair. Whether the appellate court erred in holding that the trial court did not err in providing jury instructions using the word “willfully,” not “knowingly,” in describing child endangerment (720 ILCS 5/12C-5). Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: Steven Varel, Assistant Appellate Defender, Ottawa.

IX. POSTCONVICTION CHALLENGES/REMEDIES

A. POST-CONVICTION HEARING ACT

No. 122327 People v. Dimitri Buffer, State appeal allowed 11/22/17 from 2017 IL App (1st) 142931, 75 N.E.3d 470 (Mar. 29, 2017); orally argued 1/15/19 Whether the appellate court erred in finding that defendant’s 50-year sentence (for murder committed when 16 years old) was an unconstitutional life sentence under the Eighth Amendment under Miller v. Ala., because 50 should not be considered a de facto life sentence. Relatedly, whether the Illinois Supreme Court should delineate what length of sentence qualifies as de facto life in all cases. Whether the appellate court erred in ordering a new sentencing hearing rather than remanding for second-stage postconviction proceedings (upon reversing the first-stage dismissal of defendant’s postconviction petition). Prosecutor: Gopi Kashyap, Assistant Attorney General, Chicago.

Defense counsel: Christopher Gehrke, Assistant Appellate Defender, Chicago.

**No. 123252 People v. Pernell Brown, defense appeal allowed 5/30/18 from 2017 IL App (1st) 150132, 90 N.E.3d 604 (Nov. 16, 2017); in briefing

When evaluating whether to grant leave to file a successive postconviction petition alleging actual innocence, whether the court: (1) takes the affidavit (identifying another person as the shooter) as true, meaning that the trier of fact would hear and believe such testimony, and then evaluate whether that evidence raises the probability that no reasonable juror would find the defendant guilty (as the dissent stated), or (2) takes the affidavit as true, meaning only that the trier of fact would hear the testimony, and could compare that testimony with the trial evidence and decide whether a reasonable jury would still believe the State’s case (as the majority stated). In other words, whether the court can assess the credibility of the affiant when deciding whether to allow leave to file the petition. Supreme Court answer: The State-appellee agrees that defendant-appellant should be granted leave to file his successive postconviction petition. The Court dismissed the

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appeal. Exercising its supervisory authority, the Court directed the appellate court to vacate its judgment and remand with instructions that the circuit court grant leave to file the successive postconviction petition, appoint counsel, and advance the petition to the second stage.

Prosecutor: Katherine Doersch, Assistant Attorney General, Chicago. Defense counsel: Gilbert Lenz, Assistant Appellate Defender, Chicago. Order: 1/24/19—appeal dismissed; appellate court judgment vacated; leave to file successive petition granted and advanced for second-stage postconviction proceedings. No. 123505 People v. Lanard Gayden, defense appeal allowed 9/26/18 from 2018 IL App (1st) 150748-U (Mar. 22, 2018); in briefing Whether the Court should “fill a hole” in the Post-Conviction Hearing Act for defendants who complete their sentences during the pendency of their direct appeal from obtaining a ruling on claims of ineffective assistance of counsel that were alleged during their direct appeal but found to be better suited for postconviction proceedings. Defendant suggests two avenues of relief: (1) instruct the appellate court to retain jurisdiction and remand the matter for an evidentiary hearing if the record is insufficient to decide the claim but sufficient to establish “possible neglect” of defendant’s case; or (2) the Supreme Court could exercise its supervisory authority to create a rule permitting a defendant to file a postconviction petition under these circumstances despite the fact that the sentence has been discharged. Prosecutor: Illinois Attorney General’s Office, Chicago. Defense counsel: John Breffeilh, Assistant Appellate Defender, Chicago.

No. 124046 People v. Ashanti Lusby, State appeal allowed 1/31/19 from 2018 IL App (3d) 150189, ___ N.E.3d ___ (Aug. 21, 2018) Whether the appellate court can assess cause and prejudice even when the State improperly provided input about defendant’s motion for leave to file a successive postconviction petition or should reverse the denial and remand for consideration without the State’s input. Whether the appellate court erred in granting collateral relief rather than remanding for second stage proceedings. Whether the appellate court erred in holding that the juvenile offender’s aggregate de facto natural life sentence violates the 8th Amendment based only on the fact that the court did not explicitly say it considered the presentencing investigation report (PSI). Prosecutor: Leah Bendik, Assistant Attorney General, Chicago. Defense counsel: Deborah Nall, Assistant Appellate Defender, Chicago.

B. ORIGINAL ACTIONS IN ILLINOIS SUPREME COURT

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No. 123370 Kenin Edwards v. Hon. Michael Atterberry & Hon. Scott Jones Butler, motion for leave to file petition for writ of prohibition allowed 4/12/18, with full briefing; orally argued 11/13/18 Whether the circuit court lacks jurisdiction to adjudicate as a crime conduct that solely violates an administrative rule (17 Ill. Admin. Code. sec. 1535, (1(b) & 1535.60(a), with 225 ILCS 735/10: buying timber without a timber buyer’s license). Movant’s counsel (Edwards): Robert Hanauer, Peoria. Respondents’ counsel (judges): Josh Schneider, Assistant Attorney General, Chicago.

C. MOTION FOR DNA TESTING (725 ILCS 5/116-3) **No. 123182 People v. Sylwester Gawlak, State appeal allowed 3/21/18 from 2018 IL App (3d) 160164-U (Jan. 3, 2018); orally argued 11/13/18 Whether the appellate court erred in holding that defendant has a constitutional or statutory right to counsel for litigation of motion for DNA testing under (725 ILCS 5/116-3) through Supreme Court Rule 13(c), which refers only to civil cases. More specifically, the issues include: (1) whether the Court should uphold the trial court’s ruling denying counsel leave to file a limited scope appearance to litigate only defendant’s motion for DNA testing under 725 ILCS 5/116-3 because it did not comply with Supreme Court Rule 13(c); (2) whether, because there is no constitutional right to enter a limited scope appearance, counsel’s failure to enter either a general appearance in the section 116-3 action or a valid Rule 13(c)(6) limited scope appearance on defendant’s behalf did not violate due process; and (3) in the alternative, if the Court determines that a violation of Rule 13(c)(6) occurred (but did not violate defendant’s due process right to counsel), whether any such error was harmless because defendant’s section 116-3 motion was meritless. Supreme Court answer: The Court reversed the appellate court upon concluding that defendant’s due process right to representation by retained counsel was not violated under the circumstances. The circuit court did not act arbitrarily in enforcing court rules about attorney appearances, and counsel did fail to comply with Rule 13(c)(6). Accordingly, the Court explained that it need not address the alternative harmless error argument. Exercising its supervisory authority, the Court vacated the circuit court’s judgment and remanded for further proceedings. The Court noted that both the State and the circuit court made inaccurate statements about defendant’s section 116-3 action. Given this confusion, and without commenting on the merits of the section 116-3 motion, the Court remanded for further proceedings on the motion, including providing defendant with the opportunity to retain private counsel of his choice in compliance with court rules if he chooses. Prosecutor: David Franklin, Solicitor General, Chicago. Defense counsel: Yasemin Eken, Assistant Appellate Defender, Elgin. Opinion: 2/07/19—appellate court judgment reversed; circuit court judgment vacated; causes remanded with directions.