In an article for the Chicago Daily Law Bulletin, retired Judge Rita M. Novak reviewed Joel Cohen's Book "Blindfolds Off: Judges on How They Decide." The book will be the basis for the ALA's September 26th event featuring Cohen. 

Here are a few snippets from Judge Novak's review:

The explorations in Joel Cohen’s engaging book stem from reflections of Justice Benjamin N. Cardozo in “The Nature of the Judicial Process,” published nearly 100 years ago. Cardozo’s classic work examined the “ingredients” that go into judicial decisions.

------------------------------------------------ 

Judge Nancy Gertner, a former criminal defense and civil rights lawyer, relates how she decided a tort claim involving the wrongful conviction of innocent defendants perpetrated by FBI misconduct.

Judge John E. Jones III describes his ruling in an “intelligent design” case and the conservative firestorm that followed, one ignited by partisan attackers who perceived the decision as unfaithful to the judge’s prior political affiliations.

------------------------------------------------ 

Whether in the context of settlement or trial, allowing the facts to unfold and guide the outcome of the case is a check on subjective rulings. Starting with organizing facts early in discovery, as Hellerstein discusses, or awaiting the evidence on a crucial issue, as Judges Charles P. Kocoras, Jones and Walker describe, letting the facts lead where they will keeps the rulings objectively grounded.

The full article is available on the Chicago Daily Law Bulletin's website.

On Wednesday, September 27, the law firm of Banner & Witcoff will present “A New Slant on Trademarks,” a panel discussion of the recent United States Supreme Court case Matal v. Tam, which allowed a music group called The Slants to obtain a federal trademark for its name.

The panelists will include: Rebecca Glenberg, senior staff counsel at the ACLU of Illinois; Andy Kang, legal director of the Asian Americans Advancing Justice; Binal Patel, partner at Banner & Witcoff; and Simon Tam, bassist and founder of The Slants.

The event will be co-sponsored by the Asian American Bar Association of Greater Chicago and the Korean American Bar Association of Chicago. The CLE portion will be co-sponsored by The South Asian American Bar Association of Chicago.

The event will take place at Google (320 N. Morgan Street, #600) in Chicago, beginning at 5:30 p.m. Advanced registration is required. To register, please visit: https://anewslantontrademarkspanel.eventbrite.com.

Cost is $15 for members, $25 for non-members.

By Zachary Johnson

Research Attorney, Illinois Appellate Court, First District 

In Chambers v. United States, No. 16-2977, a panel of the United States Court of Appeals for the Seventh Circuit held that the district court did not abuse its discretion when it denied defendant Keith Chambers’ Rule 60(b) motion for relief from judgment in his habeas corpus proceeding.

In the decision, the Seventh Circuit discussed the district court’s authority to provide relief under Rule 60(b) and held that the rule does not provide a district court the authority to instruct a circuit court what to do, i.e., Chambers could not use a Rule 60(b) motion to direct the Seventh Circuit to allow him to file a pro se memorandum in support of his request for a certificate of appealability.

In 2008, Chambers pled guilty to distributing and possessing child pornography (18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B)), and was sentenced to 14 years in prison. Chambers voluntarily dismissed his direct appeal. He filed a motion challenging his sentence (28 U.SC. § 2255) based on ineffectiveness of his trial counsel. The district court appointed representation for Chambers (“appointed counsel”) and conducted a hearing on the motion. It concluded that his trial counsel’s performance was not deficient and denied the § 2255 motion. The district court declined to issue a certificate of appealability.

Chambers appealed to the Seventh Circuit and, as the Seventh Circuit stated in its decision, “that is when things went awry.” Although appointed counsel was listed as counsel of record on appeal, he refused to represent Chambers, but did not file a motion to withdraw. Chambers contacted the clerk and district court for help, but was ultimately unsuccessful in getting appointed counsel removed so that he could file a pro se memorandum in support of his request for a certificate of appealability. In February 2013, the Seventh Circuit declined to issue the certificate.

Thereafter, Chambers unsuccessfully filed a motion to recall the mandate and a § 2244(b) application. He then asked the district court for relief from the judgment under Rule 60(b), which gave rise to the appeal in this case.

In his Rule 60(b) motion, Chambers argued that he was deprived of his opportunity to be heard when he was prevented from filing a pro se memorandum in support of his request for a certificate of appealability. The district court concluded that it lacked the authority to direct the appellate court to allow Chambers’ memorandum in support of his request and, therefore, denied his Rule 60(b) motion.

On appeal to the Seventh Circuit, Chambers argued the district court had the authority to grant relief based on the new and unforeseeable circumstances. The government argued that Chambers was relitigating an issue that the Seventh Circuit had already considered and rejected.

In the decision, the Seventh Circuit distinguished Chambers’ circumstances from those in cases where the district court remedied errors made in filing an appeal. The court explained that “all of the cases Chambers cite[d] involved errors either committed or properly remedied in the district court.”

The Seventh Circuit held that the proper vehicle to remedy an error in the circuit court is a motion to recall the mandate, which serves the same purpose as Rule 60(b) does in the district court. But therein lies the problem, as the Seventh Circuit held: “Chambers sought that relief and we rejected it. He cannot now relitigate that claim in the district court through the vehicle of Rule 60(b).”

The Seventh Circuit affirmed the district court’s order finding it did not have authority to consider Chambers’ Rule 60(b) motion. The court briefly addressed the merits of his Rule 60(b) motion and memorandum in support of a certificate of appealability, determining that they would have been unsuccessful.

On Tuesday, September 26, the ALA will host a discussion with author Joel Cohen on his research into how judges decide cases. The event is titled “Blindfolds Off: Judges on How They Decide,” and Cohen will share his insights into an unexpected human range of judicial philosophies, practicalities, and biases, a rare perspective he gleaned in researching and writing his book, also titled “Blindfolds Off: Judges on How They Decide.”

In the book, Cohen interviewed more than a dozen members of the federal bench, including judges of the United States Court of Appeals for the Second and Ninth Circuits and the United States District Court for the Northern District of Illinois. All of them provided candid, revealing, and personal assessments of their approaches to rulings and decisions in high-profile and complex cases.

Cohen has published several books, including Broken Scales: Reflections on Injustice, as well as works of fiction and books on religion. His articles regularly appear in Slate, New York Law Journal, Huffington Post, ABA Journal, and other publications. A former federal prosecutor and currently an adjunct professor at Fordham Law School, Cohen counsels individuals and corporations in criminal matters, ethical issues, and disciplinary proceedings. In July 2017, he was part of the appellate team that convinced the United States Court of Appeals for the Second Circuit to reverse the conviction of the former Speaker of the New York State Assembly, a case headed to the United States Supreme Court.

The event will take place at the Union League Club of Chicago (65 West Jackson Boulevard), beginning at noon and running until 1:30 p.m. Attendees to the event will receive one hour of MCLE credit.

For more information about any of the events and to register, please click here.

Cases Pending, edited by Gretchen Harris Sperry and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court’s September Term, which begins Monday, September 11, 2017, with oral arguments scheduled for September 12, 13, 14, 19 and 20, 2017. A total of 16 cases will be heard – 9 criminal and 7 civil. The following criminal cases are scheduled for argument this Term:

In re Benny M.—No. 120133—September 12
 
People v. Salimah Cole (In re Amy Campanelli)—No. 120997—September 12
 
People v. Walter Relerford—No. 121094—September 12
 
People v. Kevin Hunter & Drashun Wilson—Nos. 121306 & 121345, cons.—September 12

People v. Michael Brooks—No. 121413—September 13
 
People v. Julio Chairez—No. 121417—September 13
 
People v. Antoine Hardman—No. 121453—September 13
 
People v. Anthony Brown—No. 121681—September 13
 
People v. Jared Staake—No. 121755—September 14

Below is a summary for one of the criminal cases. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

CRIMINAL
No. 121413
People v. Michael Brooks

Defendant Michael Brooks was involved in a single-vehicle motorcycle accident around midnight on a summer evening in 2014.  When ambulance personnel and police arrived at the scene, they determined that Brooks appeared to be intoxicated and appeared to have a serious injury, a visibly broken foot.  Brooks stated that he did not want medical treatment, but ambulance personnel insisted that he needed medical treatment and requested police assistance.  A police officer compelled Brooks onto a gurney and into an ambulance, later handcuffing him to a gurney inside the ambulance when he tried to exit the moving vehicle.  At the hospital, Brooks always objected to having his blood tested, but he stayed for twelve hours to receive treatment.  The police officer left after citing him for DUI without talking to any medical personnel.  Brooks later moved to suppress blood testing results on Fourth Amendment grounds, and the State asserted that the Fourth Amendment did not apply because there was no State action involved in the blood testing.

The circuit and appellate courts agreed that the suppression motion should be granted.  The courts cited the police involvement in compelling Brooks to go to the hospital for treatment against his will as the State action triggering application of the Fourth Amendment's warrant requirement.

Before the supreme court, the State asserts that the lower courts erred by failing to apply the burden-shifting framework applicable to suppression hearings under which defendant bears the burden of making a prima facie case of a Fourth Amendment violation before the burden shifts to the State to counter that case.  Under that framework, defendant did not make a prima facie case because he offered no evidence to show a blood test occurred or, if so, to show who conducted the blood test (or why).  Even if a hospital blood test is assumed to have been conducted by hospital personnel, defendant offered no evidence to show that the blood tester should be considered a State agent.  There is no evidence that the blood tester decided to conduct the test in any way shaped by a law enforcement purpose (rather than testing for purely medical reasons).  Alternatively, even if a prima facie case were made, the circuit court erred by granting the motion before expressly shifting the burden to the State to present contrary evidence.  Brooks responds that the blood test would not have happened but for police involvement in compelling him to go to the hospital for treatment, and that he never consented to the testing.  

Cases Pending, edited by Gretchen Harris Sperry and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court’s September Term, which begins Monday, September 11, 2017, with oral arguments scheduled for September 12, 13, 14, 19 and 20, 2017. A total of 16 cases will be heard – 9 criminal and 7 civil. The following civil cases are scheduled for argument this Term:
 
Yarbrough v. Northwestern Memorial Hospital—No.121367—September 14
 
Corbett v. City of Highland Park—No. 121536—September 19
 
Citibank v. Illinois Department of Revenue—No. 121634— September 19
 
Ramsey Herndon LLC v. Whiteside—No. 121668—September 19
 
Cohen v. Chicago Park District—No. 121800—September 20
 
In re Marriage of Goesel—No. 122046—September 20
 
Lawler v. University of Chicago Medical Center—No. 120745—September 20
 
Below is a summary for two of these civil cases, Lawler v. University of Chicago Medical Center and Corbett v. City of Highland Park. Tomorrow, a list of the criminal cases scheduled for argument and a summary of one of the cases will be posted. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.
 
MEDICAL MALPRACTICE – STATUTE OF REPOSE
No. 120745
Lawler v. The University of Chicago Medical Center
 
The issue in this case concerns whether a medical malpractice claim brought under the Wrongful Death Act, 740 ILCS 180/0.01 et seq., can relate back to an existing claim, or is barred by the statute of repose.
 
On August 4, 2011, Jill Prusak (“Prusak”) filed a medical malpractice claim against Defendants, including The University of Chicago Medical Center, alleging Defendants failed to diagnose her macular pathology, an injury she alleged she discovered on August 7, 2009, leading Defendants to fail to recognize Prusak’s lymphoma. Prusak died on November 24, 2013.  Prusak’s daughter, Sheri Lawler, substituted as Plaintiff as the executor of Prusak’s estate.  On April 11, 2014, Lawler filed an amended complaint, adding a wrongful death claim.  Defendants moved to dismiss the wrongful death claim as barred by the four-year statute of repose applicable to medical negligence cases, 735 ILCS 5/13-212(a).  The circuit court granted the motion to dismiss, finding that the wrongful death claim was a new action and did not relate back to the original claims.
 
The Illinois Appellate Court reversed.  The court concluded that the wrongful death claim arose out of the same occurrence set out in the original pleading, and that Defendants had notice of both the facts and allegations underlying the medical malpractice claims in a timely-filed complaint.  Therefore, the Illinois Appellate Court held, Defendants would not be prejudiced by claims filed after the expiration of the statute of repose.  The relation-back doctrine saved the wrongful death claim which otherwise would be barred by the statute of repose.
 
In their petition for leave to appeal, Defendants argue that the court improperly evaluated the issue using principles applicable to the statute of limitations, not the statute of repose.  By doing so, Defendants explained, the court improperly allowed the relation-back statute to supersede the statute of repose.
 
TORT IMMUNITY ACT
No. 121536
Corbett v. City of Highland Park
 
The issue presented in this case involves whether, under Section 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act (“the Tort Immunity Act”), a bicycle path qualifies as a “riding trail” such that a local public entity is immune from liability for injuries caused by a condition of that path.  That section provides that “[n]either a local public entity nor a public employee is liable for an injury caused by a condition of *** any hiking, riding, fishing or hunting trail.” 745 ILCS 10/3-107.
 
This action arose after plaintiff, a cyclist, sustained an injury while riding her bicycle on a portion of the Skokie Valley Bike Path known as the “bunny trail” due to the frequent appearance of rabbits thereon. She sued the County of Lake and the City of Highland Park (“the City”), alleging that they were both liable for the defects present on the path which caused her injuries. The circuit court entered summary judgment in favor of both defendants, concluding that the bicycle path constituted a “riding trail” for purposes of the Tort Immunity Act such that the defendants were immune from liability for Plaintiff’s injuries. Plaintiff appealed the entry of summary judgment in favor of the City.
 
Reversing, the Illinois Appellate Court, Second District concluded that the section of the paved bicycle path upon which Plaintiff was injured, which was located in a semi-urban area, did not qualify as a “trail,” as intended by the legislature. Relying on prior case law defining a trail as being located within a “forest or mountainous region,” the Illinois Appellate Court determined that the path was not a trail and therefore, the City was not entitled to absolute immunity under the Tort Immunity Act. The court further opined that “[t]he frequent appearance of bunnies on the trail does not, in our judgment, call the foregoing analysis into question.” The court reversed the trial court’s entry of summary judgment and remanded Plaintiff’s claims against the City to the circuit court.
 
In its petition for leave to appeal, the City argues that the Second District’s restrictions on what constitutes a “trail” under the Tort Immunity Act– limiting it to forested or mountainous regions – would effectively preclude any public entity other than Forest Preserve Districts from seeking immunity, would ignore the purpose of the statute, and would lead to absurd results insofar as there are no mountainous regions within Illinois.

By Bradley Jarka
Assistant Appellate Defender, Office of the State Appellate Defender 

In People v. Daniels, 2017 IL App (1st) 142130-B, the First District of the Illinois Appellate Court has once again undertaken to define the limits of its own jurisdiction. This is the third decision of this kind to be featured on this blog this summer. For further discussion of this topic see Katherine Grosh’s recent analysis of People v. Griffin, 2017 IL App (1st) 143800 and Andrew Kwalwaser’s summary of People v. Grigorov, 2017 IL App (1st)143274.
 
In Daniels, the court held that it does not have jurisdiction to entertain the State’s request to reinstate charges previously dismissed pursuant to a nolle prosequi, where that request is made for the first time on appeal from the denial of a defendant’s 2-1401 petition. This deceptively simple holding is dependent on the surreptitious complexities lurking in the procedural posture of Daniels’s case, the substantive relief that Daniels requested, and the Illinois Supreme Court’s recent decision in People v. Shinaul, 2017 IL 120162. Each will be discussed in turn.
 

In 2005, Chicago police officers conducted a pat down search of Ronald Daniels on a city bus and found him to be in possession of an unloaded revolver and four rounds of ammunition. Based on that discovery, the State charged Daniels with several counts of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use of a weapon by a felon. Daniels pleaded guilty to the count of AUUW charged under Section 5/24-1.6(a)(1), (a)(3)(B) of the criminal code, which made it unlawful to possess an unloaded firearm outside his dwelling or place of business if ammunition was immediately accessible. Pursuant to that plea agreement, the State nolle prosequied (nolle’d) the remaining counts that Daniels had been charged with. Daniels did not take a direct appeal. Instead, once his sentence was completed in early 2014, Daniels filed a 2-1401 petition (735 ILCS 5/2-1401) seeking to vacate his conviction for AUUW. The circuit court denied his petition and Daniels appealed.

By the time Daniels’s case was up on appeal, his path to substantive relief had largely been forged. In 2013, the Illinois Supreme Court decided People v. Aguilar, 2013 IL 112116, which held that Section 5/24-1.6(a)(1), (a)(3)(A) of the AUUW statute was facially unconstitutional. Shortly thereafter, in People v. Burns, 2015 IL 117387, the court clarified that its holding extended to both the Class 4 and Class 2 “versions” of that offense. In Daniels’s case, the State conceded that Aguilar and Burns applied with equal force to Section (a)(1), (a)(3)(B) of the AUUW statute and agreed that Daniels’s conviction under that section should be vacated. Then, for the first time, the State asked the appellate court to remand so that it could reinstate the charges that it had nolle’d in exchange for Daniels’s plea. The court found that it lacked jurisdiction to consider the State’s request.

Enter Shinaul. Like Daniels, Cornelius Shinaul pleaded guilty to one count of AUUW and the State nolle’d the rest of the counts. Like Daniels, Shinaul filed a 2-1401 petition arguing that his conviction should be vacated in light of Aguilar. The State similarly agreed that Shinaul’s conviction had to be vacated. Then, while the case was still in the circuit court, the State filed a motion to reinstate the previously nolle’d charges. The circuit court denied the State’s motion and its subsequent motion to reconsider and the State appealed. Another division of the First District found that there was no jurisdiction to consider the State’s request. The Illinois Supreme Court reversed.

At issue in Shinaul was whether the appellate court has jurisdiction over the State’s appeal from the circuit court’s denial of its motion to reinstate charges after the court had vacated the defendant’s only count conviction. The court concluded that the appellate court did have jurisdiction. There were two key parts to the court’s holding. First, the court found that the State’s motion to reinstate the nolle’d charges was properly filed as the equivalent to a responsive pleading “conditioned upon [Shinaul]’s success in vacating his conviction.” Second, the court found that the denial of the State’s motion to reinstate was, in fact, part of the circuit court’s final judgment in the litigation of Shinaul’s 2-1401 petition. Final judgments are “determination[s] by the circuit court on the issues presented on the pleadings” that permanently affix the rights of the parties. This led the court to hold that, by properly filing its motion to reconsider in the circuit court, the State had made reinstatement of the nolle’d counts “pertinent to the outcome of the judgment” as one of the “issues before the circuit court.” The State thus had the right to appeal that judgment and the appellate court had jurisdiction to consider it.

So, what of Daniels? The State filed a petition for leave to appeal the appellate court’s determination that it lacked jurisdiction to consider reinstatement. The supreme court denied that petition but vacated the appellate court’s judgment and ordered the court to reconsider in light of Shinaul.

Upon reconsideration, the court in Daniels made quick work of distinguishing Shinaul. The court held that the State’s choice to raise the issue of reinstatement for the first time on appeal was a fatal distinction. The appellate court recognized that the circuit court had rendered a final judgment, but found that the judgment had been limited to the merits of Daniels’s 2-1401 petition and had not included any request by the State to reinstate charges. This, of course, was different than Shinaul where the circuit court’s judgment had included both the merits of Shinaul’s 2-1401 petition and the State’s responsive request to reinstate previously nolle’d charges.

For similar reasons, the court then considered and rejected the possibility of exercising original appellate jurisdiction, which is authorized by Article VI, Section 6 of the Illinois Constitution, “when necessary to the complete determination of any case on review.” Here, the court adopted the reasoning from its original opinion and found that the only “case on review” was the merits disposition of Daniels’s 2-1401 petition. That case was a separate civil proceeding unrelated to the original criminal prosecution. Entertaining a request to reinstate charges that were part of the underlying criminal case was not necessary to the determination of the 2-1401 petition. Original jurisdiction was lacking as well.

Ultimately, the appellate court reaffirmed its original disposition of Daniels’s appeal. The court reversed the circuit court’s denial of Daniels’s 2-1401 petition, vacated his AUUW conviction, and declined to reach the State’s request to reinstate the nolle’d charges for lack of jurisdiction. In a footnote, the court suggested that the State was not without a remedy. Subject to statutory or constitutional limitations, the State could either file a new indictment or move, in the circuit court, for reinstatement of the nolle’d charges.

It is worth noting that the Rule 23 order in People v. Burris, 2017 IL App (1st) 142860-U, was reissued just last week on August 16th upon remand to reconsider its prior decision in light of Shinaul. Upon reconsideration, the court in Burris found that it indeed had jurisdiction to review the State’s request to reinstate nolle’d charges (it ultimately denied the State’s request on the merits). As in Shinaul, the State in Burris had made a motion to reinstate the charges in the circuit court prior to taking its appeal.

Justice Zenoff of the Illinois Appellate Court, Second District, seeks a judicial law clerk for an opening in her chambers in Rockford. Applicants should have an excellent academic record, superior research and writing skills, and outstanding communication, computer, and organizational skills. Strongly prefer experience as a judicial law clerk or practitioner. Journal experience, especially Law Review, also preferred.

Applicant must be willing to live within 45 minutes of chambers and make a minimum 2 year commitment. Position available September 2017. To apply, submit cover letter, resume (with LSAT, GPA, class rank, and bar status), law school transcript, 2 writing samples, and 3 references to Carl Norberg at cnorberg@illinoiscourts.gov. This position is open until filled. EOE.

By Josh Wolff
Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

The Netflix 10-episode documentary "Making a Murderer" detailed the story of Steven Avery, a Wisconsin man who had been wrongfully convicted of sexual assault and attempted murder. After serving 18 years in prison for the crimes, Avery was released in 2003. Two years later, however, Avery was arrested for allegedly murdering Therea Halbach. During the investigation, the police interviewed Avery's nephew, 16-year-old Brendan Dassey, who confessed to helping Avery commit the murder. 

Both Avery and Dassey were charged and eventually convicted of Halbach's murder. Dassey was sentenced to life in prison with the possibility of parole. The Wisconsin Court of Appeals affirmed his conviction, and the Wisconsin Supreme Court declined to review his case. 

In 2015, Dassey filed a writ of habeas corpus in federal court, seeking to be released from prison or a new trial. He alleged that various of his constitutional rights were violated, but in particular that his confession to the police had been coerced in violation of the fifth amendment. In 2016, a federal magistrate judge agreed, finding that his confession had been coerced. Accordingly, because his confession was unconstitutional, the judge ordered him to be released from prison.

The Wisconsin Justice Department appealed that decision to the Seventh Circuit Court of Appeals, which stayed Dassey's release pending the appeal. In June 2017, the Seventh Circuit affirmed the magistrate judge's decision in a 2-1 opinion, with Judge Hamilton dissenting. It further granted Dassey's writ of habeas corpus unless the State of Wisconsin elected to retry him within 90 days of the Seventh Circuit's final mandate. 

The Wisconsin Justice Department requested a rehearing en banc in front of the entire panel of the Seventh Circuit. The court grantedthe request and vacated its original decision. Now, on September 26, the full Seventh Circuit will hear Dassey's case. 

By Katherine A. Grosh
Partner, Levin Ginsburg

In People v. Griffin, 2017 IL App (1st) 143800, the First District Appellate Court declined to reach the merits of a case that the court characterized as “but one of hundreds of criminal appeals involving fines-and-fees issues that were overlooked at the trial court level and raised for the first time on appeal.” Id. ¶ 5. In the case, the defendant pled guilty to two crimes in two separate cases and was sentenced to concurrent prison terms in both cases, with fines and fees. Id. ¶¶ 1-2. The defendant did not file either a motion to withdraw his plea or to reconsider his sentence, nor did he file a direct appeal in either case. Id. ¶ 2.

More than 30 days after sentencing in both cases, the defendant filed a pro se motion to correct the mittimus to reflect a different custody date for purposes of calculating presentence detention credit, which the trial court denied. Id. ¶ 1. He appealed the denial of his motion, abandoning his initial claim as to the custody date, and instead contending for the first time that his fines and fees were erroneously assessed against him and that he was entitled to presentencing detention credit. Id. ¶¶ 1, 4.

The appellate court found that, because the defendant failed to file a motion pursuant to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) to withdraw his guilty plea and vacate the judgment or a motion to reconsider his sentence within 30 days of his sentencing, it could not consider his appeal on the merits. Id. ¶¶ 1, 11. The appellate court further found that the denial of his motion to correct the mittimus was not a final and appealable order over which it had jurisdiction because—unlike the sentencing orders—it did not determine the litigation on the merits. Id. ¶¶ 1, 13. Accordingly, the appellate court dismissed the appeal. Id. ¶¶ 1, 27.

The most noteworthy aspect of the opinion was the appellate court’s express recognition that the raising of fines-and-fees issues for the first time on appeal has become a “routine” issue in criminal appeals—one that “could easily be discovered and resolved at the trial court level with more diligent oversight by prosecutors and defense attorneys alike.” Id. ¶¶ 5-6. According to the court’s own Westlaw search, in 2016 alone, there were 137 appeals where a defendant challenged the imposition of fines and/or fees, and 83 cases in which a defendant asserted error in the application of per diem credit against his fines, “all for the first time on appeal.” Id. ¶ 5.

The court stated that “[t]he time has come to take a more serious look at this problem, both for the sake of preserving proper appellate jurisprudence and for the sake of judicial economy.” Id. ¶ 7. The court continued: “Copious amounts of time, effort, and ink are spent resolving these issues at the appellate level when many of them are more appropriately resolved at the trial level through (i) routine review of judgment orders after their entry—a task that would take at most minutes—and (ii) cooperation between the parties to correct any later-discovered errors by means of agreed orders.” Id. (citations omitted). The court “encourage[d] both the State’s Attorney and the public defender to review judgment orders upon entry to ensure that fines and fees are properly assessed,” and “further encourage[d] an open line of communication between the public defender’s office and the State’s Attorney’s office, so that when defense counsel discovers an obvious clerical error in the imposition of fines and fees, he or she can contact the State’s Attorney, and the error can be corrected expeditiously at the trial court level by means of an agreed order.” Id.

The court then went on to support its well-reasoned and amply supported determination of no jurisdiction with a historical discussion of the void judgment rule, abolished by the Illinois Supreme Court in People v. Castleberry, 2015 IL 116916, followed by a rejection of the plain error doctrine as a vehicle for appellate review due to its inapplicability to clerical mistakes. Id. ¶¶ 8-9. The court then outlined what it termed a “three-step analysis,” followed immediately by its determination that it need not proceed beyond step two because the defendant’s appeal from the trial court’s denial of the motion to correct the mittimus was not properly before the court due to the defendant’s failure to file the Rule 604(d) motion—“a condition precedent to any appeal from a judgment on a plea of guilty.” Id.¶¶ 10-11 (quoting People v. Flowers, 208 Ill. 2d 291, 300-01 (2003)).

After reciting the well-established rule that “a trial court retains jurisdiction to correct clerical errors or matters of form at any time after judgment [such as the inadvertent use of the wrong custody date, as Griffin claimed occurred in this case], so as to make the record conform to the actual judgment entered by the court” notwithstanding a lack of compliance with Rule 604(d), the appellate court clarified that “[t]hat jurisdiction, though, does not automatically extend to this court.”  Id. ¶ 12.  Stating, “it is axiomatic that not every denial of a motion gives rise to a right of appeal,” the court explained that the denial of the motion to correct the mittimus was not a final and appealable order because “there no longer was any pending litigation to resolve when that motion was filed” and the trial court merely affirmed the correctness of an existing judgment. Id. ¶¶ 13-15. The court also summarily rejected any application of the revestment doctrine, since: (i) a Rule 604(d) motion was never filed (id. ¶ 20, citing People v. Henderson, 395 Ill.App.3d 980 (2009)), and (ii) parties may not “revest” a reviewing court with jurisdiction over issues that were never raised in the trial court (id. ¶¶ 21-22).

Although it dismissed the defendant’s appeal, the appellate court noted that he was not left without recourse, noting that he could still petition the trial court for the relief that he seeks because “trial courts retain jurisdiction to correct nonsubstantial matters of inadvertence or mistake.” Id. ¶ 26.