The Journal of The DuPage County Bar Association

Back Issues > Vol. 9 (1997)

Illinois Appellate Court, Second District 1996 Term Cases of Significance to Local Practitioners
By Honorable Robert D. McLaren, Allyson Harris-Martin, and Frank J. Markov, Jr.

In 1996 the Second District wrote 987 dispositions: 169 Opinions; 590 Rule 23 Orders; and 228 Summary Orders. This article will review some of these 1996 Second District cases relevant to practitioners in various areas of the law.


People v. Leach, 284 Ill. App. 3d 4 (1996). The provisions of Supreme Court Rule 651(c) only apply to open guilty pleas. To obtain relief from a sentence entered pursuant to a negotiated plea, via a post-conviction petition, a defendant must first move to withdraw his guilty plea and vacate the judgment.

Defendant agreed to plead guilty to an escape charge in exchange for a two-year prison term to be served consecutively with a prison term for a separate conviction. Defendant later filed a pro se post-conviction petition, arguing that his sentences should have been concurrent instead of consecutive. After appointing counsel for defendant, the trial court dismissed the petition.

On appeal, defendant argued that his counsel was ineffective for failing to comply with Supreme Court Rule 651(c), which requires counsel to file a certificate or make a showing on the record that he has consulted with the defendant to ascertain contentions of error, has examined the record of the trial court proceedings, and has made any necessary amendments to the pro se motion to ensure adequate presentation of the defendant’s contentions. Defendant argued that the case must be remanded because of this lack of compliance.

Our Appellate Court disagreed, and affirmed the trial court. The court adopted the reasoning of our supreme court in People v. Evans, 174 Ill. 2d 320 (1996), wherein the court ruled that a defendant cannot challenge a sentence imposed pursuant to a negotiated plea agreement without first moving to withdraw his guilty plea and vacate the judgment. While Evans involved a claim that counsel did not comply with Supreme Court Rule 604(d) instead of Rule 651(c), the court found that the reasoning in Evans applied equally to both cases. In a negotiated plea, as opposed to an open plea, the State has agreed to a specific sentence or even dropped charges in exchange for a guilty plea. If a defendant wants to challenge the sentence, he must first withdraw his plea to put the State back in its original bargaining position.

Here, defendant was not entitled to a reduction of his sentence because he had bargained for it. He could only obtain relief by moving to withdraw his plea and vacate the judgment and showing that it was necessary to grant the motion to correct a manifest injustice. As defendant has done neither, he was not entitled to relief. Therefore, his counsel’s lack of compliance with Rule 651(c) did not mandate a remand to the trial court.

People v. Tross, 281 Ill. App. 3d 146. A defendant’s problems with alcohol may constitute relevant evidence in aggravation and the refutation of mitigating factors in sentencing.

Defendant entered a plea of guilty to reckless homicide in connection with a traffic collision in which he struck and killed a man on I-355. Defendant’s blood-alcohol level at the time was 0.27 percent.

At sentencing, defendant presented evidence in mitigation that he had had prior problems with alcohol. The evidence also showed that defendant had been convicted of DUI on a prior occasion and had committed crimes under the influence of alcohol, including driving under the influence of alcohol, after the collision for which he was in court. No evidence of treatment for alcoholism was presented. The trial court found defendant’s use of alcohol before, during, and after the incident "troubling" and sentenced defendant to five years’ imprisonment.

Defendant contended on appeal that his alcohol problems could not be properly considered in aggravation. Our Appellate Court, ruled that the trial court did not abuse its discretion in considering defendant’s alcohol problems for other than mitigation. While alcohol problems are not expressly listed as factors in aggravation in the Unified Code of Corrections, a court may base its sentence on factors other than those listed so long as those factors are consistent with the Code. The court reasoned that alcohol problems may constitute relevant evidence of a history of criminal activity, particularly where, as here, the defendant continued to commit crimes under the influence of alcohol. Such problems may also constitute relevant evidence that the sentence is necessary to deter others from committing the same crime, as was mentioned by the trial court in its sentence. Further, where a defendant’s behavior fails to either stop drinking or stop committing crimes while under the influence of alcohol, a court may properly consider those problems in aggravation, as the court must consider a defendant’s rehabilitative potential. Depending on a circumstances of the case, evidence of a defendant’s alcohol problems may be considered as either mitigating or aggravating or as refuting any of the statutory mitigation or aggravation factors.


People v. Daniels, 283 Ill. App. 3d 958 (1996). A civil in rem forfeiture is not punishment for double jeopardy purposes even when the forfeiture arises from the same conduct from which a separate criminal prosecution arises.

Defendant was charged with three felony controlled substance charges. When defendant was arrested, his vehicle was seized. Defendant failed to file a claim when he was sent notice of a pending forfeiture, and the vehicle was subsequently forfeited pursuant to the Illinois Drug Asset Forfeiture Procedure Act. Defendant then moved to dismiss the criminal prosecution against him on the basis of former jeopardy, arguing that the seizure and forfeiture of his vehicle, which was titled in his name, constituted punishment for the same conduct as the criminal offenses and barred further prosecution. The circuit court denied the motion, and defendant appealed.

Our Appellate Court affirmed the trial court and remanded the case for further proceedings. Citing United States v. Ursery, (1996), 518 U.S. ___, 135 L. Ed. 2d 549, 116 S. Ct. 2135, the court applied the two-part test to determine whether a civil in rem forfeiture amounts to criminal punishment for double jeopardy purposes: (1) whether the forfeiture preceding is intended to be, or by its nature, necessarily is, criminal and punitive or civil and remedial; and (2) whether the forfeiture proceeding is so punitive in fact that the proceeding may not legitimately be viewed as civil and remedial in nature despite the legislature’s intent. The court found that the legislature intended the forfeiture to be civil in nature, as the forfeiture is directed against the property itself and not against an accused; it is not intended to sanction criminally a particular defendant. The court also found that the forfeiture proceeding serves important nonpunitive goals, such as deterring the abuse and trafficking of controlled substances, removing the instrumentalities of crimes, making the repeat of crimes more difficult, encouraging owners to take care that their property is not used for illegal purposes, and ensuring that persons do not profit from their illegal acts. The defendant failed to demonstrate with "clearest proof" that the forfeiture of the vehicle was criminal punishment for double jeopardy purposes; therefore, the trial court was affirmed.

The court further noted that, as defendant had failed to file a claim in the forfeiture proceeding, he was not at risk in that proceeding. Without the risk of a determination of guilt, jeopardy did not attach, negating any claim of prior jeopardy.

People v. $5,970 United States Currency, 279 Ill. App. 3d 583 (1996). Currency is subject to forfeiture if it is furnished or is to be furnished in exchange for a substance in violation of the Illinois Controlled Substances Act or if it is proceeds traceable to such an exchange; a presumption that currency was so furnished or intended to be furnished arises when currency is found in close proximity to forfeitable substances. This presumption may be rebutted by a preponderance of the evidence.

Claimant was pulled over for driving on a suspended license. During a search of the vehicle subsequent to claimant’s arrest, the police found a box containing $5,970 in United States currency only inches away from a baggie containing cocaine. Claimant appeared unconcerned about the seizure of the cash.

At the forfeiture hearing, claimant’s mother testified that claimant sold her a vehicle. In exchange for the vehicle, she had given claimant $6,000 in cash on the same day that claimant had been pulled over. Claimant testified that he had received the money from his mother only 1 1/2 hours before he was arrested. He could not recall where or from whom he had recently purchased the car that he said he sold to his mother for the $6,000.

The trial court initially found in favor of the claimant and ordered the currency returned to him. Upon reconsideration, the court reversed itself and ordered the currency forfeited. The claimant’s motion to reconsider was denied. This appeal followed.

After finding that the currency may be subject to forfeiture, the court stated that the State bears the initial burden of showing probable cause for forfeiture of the property. If the existence of probable cause is sufficiently shown, the burden shifts to the claimant to show by a preponderance of the evidence that his interest in the property is not subject to forfeiture. In ruling in a forfeiture case, a trial court may determine the credibility of witnesses, and draw reasonable inferences and reach conclusions to which the evidence lends itself. Our Appellate Court found that the State sufficiently showed probable cause by presenting evidence that the currency was found in close proximity to the cocaine, raising the presumption that the currency was furnished or intended to be furnished in exchange for drugs. The burden then shifted to the claimant to show that his interest in the currency was not subject to forfeiture. The trial court found that the claimant’s innocent explanation for the existence of the currency was not credible; therefore, the claimant did not rebut the presumption and did not prove that the currency was not subject to forfeiture. Our Appellate Court also rejected claimant’s other contentions in affirming the trial court.

Due Process

Cavarretta v. DCFS, 277 Ill. App. 3d 16 (1996). Plaintiff’s due process rights were violated by defendants’ gross deviation from time limits set for hearings and decisions set forth in the Abused and Neglected Child Reporting Act (Act) and by the standard of review used by the Department of Children and Family Services (DCFS) administrative law judges.

Plaintiff was the subject of an investigation by DCFS involving the possible sexual abuse of a student at the school at which he was employed. After the investigation, the report was "indicated," meaning that "credible evidence of the alleged abuse or neglect exists." All reports of such abuse or neglect are forwarded to the State register of suspected child abusers.

Plaintiff requested that the report be expunged from the register. A DCFS review panel denied this request. Plaintiff then requested an administrative hearing on the issue. Such hearings are to be held "within a reasonable time" after the request, according to the Act. Plaintiff’s hearing was scheduled for 299 days after his request. After an agreed continuance, the hearing was held on several dates in September and October 1994. One hundred sixty nine days after the last day of testimony in the hearing and 581 days after plaintiff appealed the DCFS decision, the administrative law judge issued her recommendation and opinion, finding that there was "credible evidence" of sexual molestation and denying the request for expungement. The DCFS Director then adopted the recommendation and opinion. Plaintiff then appealed to the circuit court, which reversed the administrative law judge’s decision and ordered DCFS to expunge the plaintiff’s record. DCFS then appealed.

Our Appellate Court first determined that the plaintiff had a due process claim under both the United States and Illinois constitutions. While damage to a person’s reputation alone does not implicate a Federal liberty interest, that, plus the loss of present or future government employment is sufficient to rise to the level of a protectible liberty interest. The court found that being placed on the register of suspected child abusers implicated a Federal interest because the subject of an "indicated" report may be prohibited from working in certain professions, such as child care and teaching. A teacher, such as plaintiff, placed on the register may lose his teaching certificate. Furthermore, the court found that the Illinois Constitution has a history of protecting reputation and that anyone placed on the register would suffer great damage to his reputation. Therefore, under both the Federal and State constitutions, plaintiff had a due process claim.

The court then found that the time it took DCFS to provide a hearing and issue a decision violated plaintiff’s due process rights. While the Act only requires a hearing on an expungement request "within a reasonable time" after a request is made, the Illinois Administrative Code provides that a hearing will be provided within 30 days of a request. The court determined that DCFS grossly deviated from this time frame by scheduling a hearing for 299 days after plaintiff’s request. This, combined with a 9-day delay in issuing a final decision and a 598-day delay in completing the DCFS appeal process violated plaintiff’s right to due process.

The court also determined that the "credible evidence" standard of review provided for in the Illinois Administrative Code deprived plaintiff of his due process rights. The court reasoned that the "credible evidence" standard was not more stringent than the "probable cause" standard. While probable cause is sufficient for an arrest, a conviction must be based on evidence beyond a reasonable doubt. Here, DCFS was only required to prove its case with "credible evidence" which, under the Code, did not require the factfinder to weigh conflicting evidence. The "credible evidence" standard was too low, according to the court, and a "preponderance of the evidence" standard should be applied. Because the court found plaintiff’s due process rights violated, it affirmed the judgment of the trial court.

Family Law—Child Support

The entire amount of a personal injury settlement did not necessarily constitute "net income" for purposes of determining child support. Villanueva v. O’Gara, 282 Ill. App. 3d 147 (1996).

A mother petitioned the trial court for an increase in child support after the respondent father received $251,655.36 from a personal injury settlement. The father permanently injured his hand while using a manufacturer’s product at work. The mother sought a one-time lump sum payment of 20% of the net proceeds. The mother and father were never married, but the father was adjudged to be the child’s father. The trial court determined that the settlement amount constituted "income" under section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505 (West 1994)) and ordered the father to deposit 20% of the net proceeds in trust for the benefit of the parties’ child. The trial court did not enter findings of fact as to an apportionment of damages between all the elements of damages recoverable in personal injury torts.

Our Appellate Court reversed, holding that the entire amount of a personal injury settlement is not necessarily "income" for the purposes of determining child support. After noting that "income" is not defined by the Act, the court stated that "income" represents a gain or profit from labor or capital, whereas compensatory damages seek to make a plaintiff whole. Therefore, compensation for disability and disfigurement, pain and suffering, and medical expenses do not constitute "income," while compensation for lost earnings do constitute "income" for purposes of determining child support. The court remanded the case to the trial court to determine the portion of the settlement which represented the father’s lost past and future earnings.

Evidence—Clergyman Privilege

In a prosecution for criminal sexual abuse, a defendant’s statements to his pastor were deemed privileged, even though the pastor was also a clinical psychologist and employed both psychological and spiritual principles in his counseling, and the defendant did not instigate the counseling. People v. Burnidge, 279 Ill. App. 3d 127 (1996).

The defendant was arrested and tried for aggravated criminal sexual abuse of a 15-year-old girl. The defendant was a 23-year-old youth group counselor employed at the girl’s church. A subpoenaed witness, a reverend at the church, filed a motion to exercise the clergy privilege. The reverend attended a meeting between the defendant, the victim, and the victim’s parents and recommended counseling for the defendant.

In addition, the defendant filed a pretrial motion to exclude statements he made to another pastor, which were subsequently reported by the pastor to DCFS. The report led to the criminal charges filed against the defendant. This pastor was a clinical psychologist who provided spiritual and psychological counseling. The trial court excused both pastors from testifying about their conversations with the defendant and excluded the report made to DCFS. However, the trial court refused to exclude any other evidence which was arguably obtained as a result of the pastor’s report.

After a jury trial, the defendant was convicted of aggravated criminal sexual abuse and sentenced to 36 months’ probation and a 9-month term of periodic imprisonment. The defendant was also ordered to pay restitution and fines totaling $1,500.

On appeal, the defendant argued that DCFS improperly compelled the pastor to file the report with DCFS. Our Appellate Court agreed, reasoning that section 4 of the Abused and Neglected Child Reporting Act did not list clergy as one of the professionals who must immediately make a report to DCFS when they believe that a child known to them in their professional capacity may be abused or neglected. See 325 ILCS 5/4 (West 1994). Therefore, our court concluded, the clergy privilege contained in section 8—803 of the Code of Civil Procedure (735 ILCS 5/8—803 (West 1994)) applied. This privilege belongs to both the clergyman and the person making statements. The fact that the defendant did not instigate the counseling and was an employee of the church did not destroy the privilege, as the State had contended.

However, the court refused to dismiss the case and discharge the defendant from further prosecution. Our court held that the trial court ordered the proper remedy by excluding the communication and the report. The court stated that the clergy privilege is not on the same plane as the exclusionary rule and, thus, other testimony not subject to the privilege was properly admitted, even though it was the pastor’s report which led authorities to the victim and other witnesses.

Malicious Prosecution And Lis Pendens Actions

A cause of action for malicious prosecution did not exist where the counterplaintiffs failed to establish a factual determination in their favor, even though the parties settled and agreed that the counterplaintiffs could proceed on their claim. In addition, the filing of a lis pendens notice was insufficient to establish an abuse of process claim. Arora v. Chui, 279 Ill. App. 3d 321 (1996).

The Aroras filed a complaint against the Chuis for specific performance of a contract for the sale of the Chuis’ home. Without attaching a copy of the alleged contract to their complaint, the Aroras claimed that the Chuis entered into a valid real estate contract for the sale of the home. The Aroras also filed a lis pendens notice on the Chuis’ home with the Du Page County Recorder of Deeds. The Chuis subsequently entered into a contract for the sale of the home with Vijay and Nishi Bajaj.

The trial court denied the Chuis’ motion to dismiss, and the Chuis filed an answer to the Aroras’ complaint. The answer alleged that the parties never entered into a contract. The Chuis also filed counterclaims for malicious prosecution and abuse of process. The counterclaim alleged that the Chuis were unable to close on the sale of their home because of the lis pendens notice which the Aroras filed wrongfully, maliciously, without probable cause, and for the purpose of preventing the Chuis from selling their home. The Chuis sought specific monetary damages.

The parties then entered into a stipulation to dismiss, which stated that the Aroras’ complaint was to be dismissed with prejudice, the Aroras would file a release of the lis pendens notice, and the Bajajs, who had been granted leave to intervene, would dismiss their complaint with prejudice. The Chuis’ counterclaims would not be dismissed and would be the only actions remaining to be determined by the court.

After the close of the Chuis’ case, the trial court granted the Aroras’ 2—615 motion to dismiss both the malicious prosecution and the abuse of process counterclaims for failure to state a cause of action. The trial court considered only the pleadings in making its decision. The Chuis appealed.

Our Appellate Court affirmed, with Justice McLaren dissenting. The court first noted that the Aroras waived the alleged defects in the Chuis’ counterclaims by filing an answer. Only when a complaint fails to state a cause of action recognized in the State should a court grant a 2—615 motion to dismiss after an answer is made. Since malicious prosecution and abuse of process are recognized causes of action in Illinois, the trial court should have denied the Aroras’ 2—615 motion to dismiss before it heard evidence on the Chuis’ counterclaims. In the interest of judicial economy, however, our Appellate Court discussed whether the trial court should have granted a directed finding for the Aroras at the close of the Chuis’ case.

Our Appellate Court held that, because there was only a settlement but no factual determination made in the Chuis’ favor, the Chuis failed to establish a cause of action for malicious prosecution. Further, the court reasoned that there was nothing in the counterclaims or the evidence presented at trial to support a finding that the settlement was a termination made in the Chuis’ favor. The fact that the settlement allowed the Chuis to continue with their counterclaims was of no consequence since the Aroras could be assured by a host of authority that the Chuis could not prove their case without judicial determination of the underlying suit or a termination of that suit dealing with factual issues. The dissent opined that the host of authority was to the contrary.

Our Appellate Court also held that the Chuis failed to establish a prima facie case for abuse of process because the filing of a lis pendens notice did not involve misuse of the process of the court.

Tort Law—Sexual Abuse

Repealed 12-year statute of repose contained in the childhood sexual abuse section of the Limitations Act bars a claim for childhood sexual abuse filed when the plaintiffs were over the age of 30. M.E.H. v. L.H., 283 Ill. App. 3d 241 (1996).

On October 14, 1994, the plaintiffs, M.E.H. and D.M.H., filed a civil complaint against their father for alleged acts of sexual abuse which occurred when the plaintiffs were minors. The plaintiffs were 44 and 45 years old when they filed their complaint. The plaintiffs also alleged that their mother was liable for intentional infliction of emotional distress and breach of parental duty. The trial court dismissed the complaint, concluding that the general personal injury statute of limitations (735 ILCS 5/13—202 (West 1992)) barred the plaintiffs’ claim against their mother and the statute of repose contained in the childhood sexual abuse sections of the Limitations Act (735 ILCS 5/13—202.2(b) (West 1992) (1991 Act)) barred the plaintiffs’ claim against their father.

The 1991 Act contained a 12-year statute of repose which began to run when the alleged victim reached the age of 18. However, the legislature repealed the statute of repose effective January 1, 1994.

On appeal, the daughters argued that their causes of action did not accrue until October and June 1992 when, during psychological therapy, they first recalled, and, thus, discovered, their father’s abuse. Our Appellate Court disagreed, reasoning that the discovery rule does not apply to the statute of repose. Because the statute of repose for these plaintiffs expired in 1979 and 1980 (12 years after the plaintiffs reached the age of 18), their complaint filed in 1994 was untimely.

The daughters also argued that the 1994 amendment applied retroactively to their complaints. Our Appellate Court disagreed and held that nothing in the amendment indicated that the legislature intended to revive previously-extinguished claims.

The daughters also argued that the statute of repose contained in the 1991 Act violated article I, section 12, of the Illinois Constitution because it arbitrarily eliminated a cause of action that existed at common law. Our Appellate Court disagreed and held that, although the legislature may not arbitrarily eliminate a cause of action at common law, it may prevent problems of proof caused by stale claims by enacting statutes of repose.

The plaintiffs also contended that they should be allowed a reasonable time to file after the enactment of the statute of repose. Our Appellate Court agreed with the proposition, but stated that it only applied where a cause of action existed before the statute of repose became effective. The court stated that the plaintiffs had no cause of action before the statute of repose was enacted, because their claims were time barred by the two-year general personal injury statute of limitation. The court disagreed with the plaintiffs that the discovery rule applied, noting that, where a sudden traumatic event causes injury, the cause of action accrues immediately. The court stated that the plaintiffs were aware of the abuse when it occurred and, thus, knew or should have known that the defendant’s actions were actionable when they occurred. Therefore, the statute of limitations began to run when the plaintiffs reached the age of 18, and the plaintiffs’ complaint was not timely.

Honorable Robert D. McLaren
is a Presiding Justice of the Illinois Appellate Court, Second District. He received his Undergraduate Degree in 1966 from Monmonth College and his Law Degree in 1969 from Drake University.

Allyson Harris-Martin is a Law Clerk for the Honorable Robert D. McLaren, Justice of the Illinois Appellate Court, Second District. She received her Undergraduate Degree in 1987 from DePaul University and her Law Degree in 1994 from I.I.T. Chicago-Kent.

Frank J. Markov, Jr. is a Law Clerk for the Honorable Robert D. McLaren, Justice of the Illinois Appellate Court, Second District. He received his Undergraduate Degree in 1984 from Elmhurst College and his Law Degree in 1989 from John Marshall.

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