"The Brief" - The ALA Blog

  • February 02, 2020 3:16 PM | Carson Griffis (Administrator)

    By:  Katherine A. Grosh, Levin Ginsburg

    The case of Illinois State Bar Association Mut. Ins. Co. v. Canulli, 2019 IL App (1st) 109141, reminds appellate practitioners that filing a notice of appeal prematurely is far less risky than the alternative, i.e., not filing one at all based on false comfort provided by less-than-perfect Rule 304(a) language.

    The First District of the Appellate Court dismissed as untimely defendant's appeal from the Circuit Court of Cook County’s declaratory judgment in favor of ISBA Mutual finding that it owed no duty to defend defendant against defendant's former client’s legal malpractice complaint. ISBA Mutual originally accepted the tender of defense, but withdrew its tender after the client amended her complaint to seek only a reduction in legal fees. 

    Three months earlier, ISBA Mutual filed a separate action seeking a declaratory judgment that it did not owe defendant a duty to defend him against a sanctions motion filed by third parties whom defendant sued on behalf of his former client. The two declaratory judgment actions were consolidated.

    The parties filed cross-motions for summary judgment in both actions. The circuit court granted ISBA Mutual’s motion for summary judgment as to the sanctions motion, but, significantly, the court did not enter judgment on ISBA Mutual’s declaratory judgment action regarding the legal malpractice complaint. In its ruling, the circuit court stated that there was “no reason to delay enforcement of or appeal from (assuming such an appeal is possible)” its judgment in favor of ISBA Mutual regarding the sanctions motion.

    Almost seven months later, defendant filed a motion to reconsider the court’s judgment and after it was denied, he filed a notice of appeal—nine months after the entry of the summary judgment order he sought to appeal.

    The appellate court dismissed the appeal as untimely, rejecting defendant's two arguments. First, the court rejected defendant's argument that the summary judgment order did not comply with Rule 304(a). The Court stated: “[t]he circuit court need not ‘parrot’ Rule 304(a) in order to invoke it,” and cited to previous decisions in which it found it had jurisdiction to review orders with inexact Rule 304(a) language. Thus, the Court concluded that the language used by the court “clearly invoked Rule 304(a).” 

    Second, the court rejected defendant's argument that, even assuming that the order complied with Rule 304(a), the order was not final. The court acknowledged that “the inclusion of Rule 304(a) language cannot render final an otherwise nonfinal order,” but stated that that rule did not apply. The court found that the circuit court’s finding that ISBA Mutual did not owe defendant a duty to defend was a ruling on the merits. And even if the court did not rule on the merits, the circuit court’s order dismissing ISBA’s declaratory judgment action as moot with respect to the sanctions motion “fully disposed of the rights of the parties as to that controversy.”

    Finally, the appellate court rejected defendant's argument that the order was nonfinal because the still-pending declaratory judgment claim regarding the legal malpractice complaint was “based on the same operative facts.” The appellate court stated that, “[m]erely because both the sanctions motion and the legal malpractice litigation arose out of the same divorce proceedings, it does not follow that the two are related for purposes of determining whether ISBA Mutual owed [defendant] a duty to defend” because “such a duty depends on the language of the complaints, not the conduct on which the complaints were based.” 

    Accordingly, the appellate court concluded that defendant's notice of appeal was untimely and dismissed the appeal for lack of jurisdiction.

  • January 18, 2020 9:00 AM | Carson Griffis (Administrator)

    The Appellate Lawyers Association is hosting a Candidates' Forum for all candidates seeking election to the Freeman vacancy on the Illinois Supreme Court.  After joining us for our monthly luncheon, each candidate will be allotted time to discuss their qualifications and answer questions posed by the moderator, ALA President Gretchen Harris Sperry.  Time permitting, audience questions may be directed to the candidates.  All declared candidates have been invited to participate.

    Date: Wednesday, January 29, 2020

    Time: 12:00 p.m. to 2:00 p.m.

    Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois.  Please note that the Union League Club enforces a dress code, which can be accessed here.    

    Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers.  Lunch is included.

    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

    Questions?  Call (630) 416-1166, ext. 303


    1.     Use our online registration system here to register for the event and also pay with a credit card.  Or, if you prefer, you can register online but send a check for payment.  Please note, credit card payments can only be accepted through the online registration process. 

    2.     Mail your completed registration form along with a check payable to ALA to: 

    Chris Teed 
    Appellate Lawyers Association 
    1717 North Naper Boulevard, Suite 102 
    Naperville, Illinois 60563

    Cancellations/Refunds:  Cancellations must be received two business days prior to the event in order to receive a full refund.  No refunds will be processed after this time.  Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418.  Additionally, payment is expected from no-shows.

  • January 13, 2020 4:28 PM | Louis Manetti (Administrator)

    By: Catherine Weiler

    The Illinois Supreme Court’s January Term oral arguments begin Tuesday, January 14, 2020, with additional oral arguments scheduled for January 15th and 22nd. A total of 10 cases will be heard – 4 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

    • Whitaker v. Wedbush Secs., Inc.               No. 124792              January 15, 2020
    • McAllister v. Illinois Workers’ Comp. Comm’n   No. 124848    January 15, 2020
    • Dynak v. Board of Educ. of Wood Dale School Dist. 7              No. 125062        January 22, 2020
    • Restore Constr. Co., Inc. v. Board of Educ. of Proviso Township High Schools Dist. 209 No. 125133        January 22, 2020
    • Levin v. Retirement Bd. of the Cook County Employees’ and Officers’ Annuity and Benefit Fund of Cook County              No. 125141        January 22, 2020
    • Berry v. City of Chicago  No. 124999        January 22, 2020

    Below is a summary for one of these cases, Berry v. City of Chicago.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

    Berry v. City of Chicago

    This appeal raises three issues: (1) whether a plaintiff who is exposed to lead in drinking water, but who has not developed any physical symptoms from such exposure, has suffered sufficient present injury to state a claim for negligence; (2) whether an injury suffered by many individuals can constitute the type of special damage necessary to maintain a cause of action for inverse condemnation; and (3) whether the immunity for discretionary decisions in section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201) applies to a local government’s decision to follow recommendations from a private body.

    Plaintiffs sued the City of Chicago, alleging that, in replacing water mains and meters near their homes, the City caused their drinking water to have increased levels of lead. Plaintiffs had not developed physical symptoms from their exposure to lead, but had drunk the contaminated water. Plaintiffs’ complaint asserted claims of negligence based on their exposure to lead and inverse condemnation based on damage to their water pipes. The City moved to dismiss the complaint under section 2-615 of the Code of Civil Procedure, asserting that Plaintiffs had not suffered sufficient physical injury to assert a claim for negligence and that they had not suffered special damage to their property necessary to state a claim of inverse condemnation. The City also asserted that it exercised discretion in replacing the water mains and meters such that the City was immune under section 2-201 of the Tort Immunity Act. The circuit court granted the City’s motion to dismiss, finding that Plaintiffs had not suffered a physical injury sufficient to maintain their negligence claim or special damages necessary to maintain their inverse condemnation claim.

    The appellate court reversed. The court held that Plaintiffs’ consumption of lead-contaminated water was a sufficient present injury to state a claim for negligence because of the increased risk of physical injury created by the consumption of lead. The court also held that Plaintiffs suffered special damages when the City’s work interfered with their use and enjoyment of their homes even though many individuals were affected by the increased lead levels. Finally, the court held that section 2-201 of the Tort Immunity Act did not apply because, while the City exercised discretion in developing its plans for replacing the water mains and meters, Plaintiffs alleged that the City was simply executing that plan by following guidelines for water main and meter replacement set by the American Water Works Association.

    Justice Connors dissented, arguing that Plaintiffs had not suffered sufficient injury because they had no developed physical symptoms from their exposure to lead and that they had not suffered special damages because many people all suffered the same damage to their property.

    In its petition for leave to appeal, the City argued that, under Illinois Supreme Court precedent including Moorman Mfg. Co. v. Nat'l Tank Co., 91 Ill. 2d 69 (1982) and Williams v. Manchester, 228 Ill. 2d 404 (2008), Plaintiffs could not maintain their negligence claim based on the increased risk of injury; actual, present injury to person or property is required. The City also argued that Plaintiffs failed to state a claim for inverse condemnation because an injury suffered by a large number of plaintiffs cannot be special damage required to state such a claim. Finally, the City claimed that section 2-201 applied to Plaintiffs’ claims because the City exercised discretion in following the guidelines of the American Water Works Association.
  • January 10, 2020 2:43 PM | Louis Manetti (Administrator)

    By: Leah Bendik

    The Illinois Supreme Court’s January Term oral arguments begin Tuesday, January 14, 2020, with additional oral arguments scheduled for January 15th and 22nd. A total of 10 cases will be heard – 4 criminal and 6 civil. The following criminal cases are scheduled for argument this Term:

    People v. Aaron Jackson   No. 124112   January 14

    People v. Jasper McLaurin     No. 124563  January 14

    People v. Charles Hill   No. 124595   January 14 

    People v. Rory John Swenson  No. 124688  January 14

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

    People v. Charles Hill

    In May 2017, police pulled over defendant when they thought his passenger matched the description of a wanted fugitive.  It was not the fugitive.  But the officer smelled raw cannabis.  A search of the car found crack cocaine.  Defendant moved to suppress.  The trial court granted suppression on the basis that the stop was not justified because the officer had no corroborating evidence that the passenger was the fugitive.  The State appealed, and the appellate court held that the stop and subsequent search were justified. 

    Before the Illinois Supreme Court, defendant argues that the General Assembly's decision to decriminalize possession of small amounts of cannabis (instead recognizing it as a civil violation subject only to a fine) necessarily should alter prior precedent that deemed an officer's perception of an odor of raw cannabis gave him or her probable cause for Fourth Amendment purposes because it is no longer considered contraband.  The State, in response, asserts that decriminalization is not synonymous with legalization: even possession of the small amounts of cannabis giving rise to only civil violations is still the legitimate object of a police search, as most jurisdictions with similar changes to state cannabis laws have held.  In other words, cannabis remains "contraband" in this context.  Moreover, because a significant number of cannabis-related activities remain unlawful, the odor of cannabis can still contribute to a probable cause determination under the totality of the circumstances.  The State also offered two other alternative bases to uphold the search.  One, here, the smell of cannabis plus additional circumstances provided probable cause.  Two, even absent probable cause, the evidence should still not be suppressed under the good-faith exception to the exclusionary rule.

  • January 02, 2020 7:36 PM | Carson Griffis (Administrator)

    By:  Dodie O'Keefe

    As the new year arrives, practitioners and judges must pay heed to changes in the law concerning special interrogatories under section 2-1108 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1108). Previously, the statute required special interrogatories that were in proper form to be submitted to the jury if any party so requested. The trial court’s submission or refusal to submit a special interrogatory was reviewed under the de novo standard. And, where the jury’s answer to a special interrogatory was inconsistent with the general verdict, the former controlled the latter. 

    In trials beginning on or after January 1, 2020, parties may still request special interrogatories, but whether to submit them will lie within the discretion of the trial court. Thus, “[s]ubmitting or refusing to submit a question of fact to the jury may be reviewed on appeal to determine whether the trial court abused its discretion.” Notably, the statute will also allow parties to explain to the jury the result of a special finding that is inconsistent with the general verdict. To that end, if a special finding is inconsistent with the general verdict, then the trial court must “direct the jury to further consider its answers and verdict.” If the jury is still unable to render a compatible verdict, then the court must order a new trial. 

    With that in mind, let us hope these changes bring resolution to this notoriously challenging area of law in the new year.

  • December 16, 2019 8:58 PM | Carson Griffis (Administrator)

     By: Linda Boachie-Ansah

      In the movie Forrest Gump, the protagonist observed that,  “life was like a box of  chocolates; you never know what  you’re going to get.” Clarisha Benson and Lorenzo Smith,  plaintiffs in Benson v. Fannie May Confections Brands, Inc., No.  19-1032, 2019 WL 6698082 (7th Cir. Dec. 9, 2019), can attest to that observation. Benson and Smith bought boxes of chocolate from Fannie May stores in Chicago, Illinois. To their displeasure, upon opening the boxes, plaintiffs found less chocolate than they were expecting. Benson and Smith filed a lawsuit against Fannie May on behalf of themselves and a putative class under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), see 815 ILCS  505/1 et seq. Plaintiffs also brought claims of unjust enrichment and breach of implied contract.

    According to plaintiffs, Fannie May’s boxes contained unnecessary space that misled consumers into thinking that they would receive more chocolate than they actually would. Had they known there was so much empty space in the boxes, plaintiffs claimed that they would not have purchased the chocolate. Fannie May moved to dismiss the amended complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6). The district court granted its motion, reasoning that plaintiffs had not sufficiently pleaded a violation of the Food, Drug, and Cosmetic Act (“FDCA”), see 21 U.S.C. § 301 et seq., and that the FDCA preempted plaintiffs’ claims under Illinois law.

    On appeal, the Seventh Circuit noted that preemption is an affirmative defense. Defendant bears the burden of proving an affirmative defense. Thus, the court held that it was improper for the district court to punish plaintiffs for “failing to anticipate an affirmative defense in [the] complaint and dismissing the action based on FDCA preemption.”

    Turning to their claim under the ICFA, the court noted that to prevail, plaintiffs had to plead that (1) the defendant committed a deceptive or unfair act with the intent that others rely on the deception; (2) the act occurred in the course of trade or commerce; and (3) the act caused actual damages. In this case, the outside of the box revealed both the net weight and number of pieces of chocolate inside the box. Nonetheless, the court credited plaintiffs’ assertion that they and other reasonable consumers “attach importance to the size of [the] package.” Overall, the court found that plaintiffs adequately pleaded that Fannie May committed both deceptive and acts.

    But plaintiffs also had to show that the deceptive or unfair act caused them to suffer actual damages. And here, where plaintiffs never alleged that the chocolates were worth less than what they paid for them, or that they could have gotten a better price from another company, the court ruled that they could not show a pecuniary loss. The court therefore concluded that plaintiffs’ claim under the ICFA was properly dismissed on the pleadings.

    On the remaining claims, the court of appeals found that “there is no stand-alone claim for unjust enrichment” under Illinois law. Thus, plaintiffs’ failure to state a claim under the ICFA necessarily meant that they could not state a claim for unjust enrichment. Plaintiffs also claimed that Fannie May breached an implied contract. But the court observed that the parties had entered “a straightforward, everyday sales contract in which the buyers selected the chocolate and offered to purchase it at the advertised price, at which point Fannie May accepted by taking the plaintiffs’ money in exchange for possession of the chocolate.” The sales receipts that plaintiffs received at the cash register spelled out the terms of the contract. Finding that Illinois law does not recognize an implied contract under these circumstances, the Seventh Circuit concluded that that part of the case was correctly dismissed.

  • December 02, 2019 6:11 PM | Carson Griffis (Administrator)

    On November 25, 2019, The Illinois Supreme Court issued an order permitting the use of electronic devices during oral argument under limited circumstances.  The order allows counsel or litigants to use electronic devices, including laptops, tablets, or cell phones, for referencing notes, taking notes, or searching the internet during oral argument.  

    Electronic devices may not be used for posting on social media, texting, emailing, phone calls, recording oral arguments, or taking pictures, and spectators are still prohibited from using electronic devices.  Those intending to use electronic devices must give the clerk of the Court at least seven days' notice.   

    The order can be found here.

  • November 22, 2019 8:33 AM | Carson Griffis (Administrator)

    By:  Carson Griffis*

    In Lakeshore Centre Holdings, LLC v. LHC Loans, 2019 IL App (1st) 180576, a divided panel of the Illinois Appellate Court, First District, held that a finding pursuant to Illinois Supreme Court Rule 304(a) — which allows an appeal from a final judgment entered as to fewer than all parties or all claims in a case — triggers the 30-day time limit to file a sanctions motion under Illinois Supreme Court Rule 137.

    The plaintiff filed suit over the defendant’s alleged failure to perform under an option contract.  The defendant filed a counterclaim, alleging that the plaintiff had breached the contract.  The circuit court dismissed the plaintiff’s complaint in its entirety, disposing of all of the plaintiff’s claims, and entered a finding under Rule 304(a) because the defendant’s counterclaim was still pending.  Rule 304(a) provides that, when a case involves multiple claims or parties, a final judgment as to at least one of those claims or parties, but not all of them, is appealable if the circuit court finds “that there is no just reason for delaying either enforcement or appeal or both.”

    The plaintiff appealed from the circuit court’s dismissal of its complaint, and the appellate court ultimately affirmed the dismissal.  While the plaintiff’s appeal was pending, and about five months after the circuit court made its Rule 304(a) finding, the defendant filed a Rule 137 sanctions motion against the plaintiff alleging that it made false allegations in its complaint.  The circuit court granted the sanctions motion in part and awarded the defendant some of its attorney fees.  Both parties cross-appealed from the circuit court’s judgment on the sanctions motion.

    After ordering supplemental briefing on the issue of the circuit court’s jurisdiction over the sanctions motion, the appellate court vacated the circuit court’s order.  It noted that Rule 137 requires that a sanctions motion be filed within “30 days of the entry of final judgment.”  The appellate court then emphasized that Rule 304(a) judgments are final judgments, even though they do not dispose of all claims against all parties.  And the court noted that timely Rule 137 motions toll the time for filing a notice of appeal.  Because a notice of appeal may be filed from a Rule 304(a) judgment within 30 days, the appellate court stressed that it would make sense that only a Rule 137 motion filed within 30 days would toll the time to file that notice of appeal.  Finally, the appellate court found that the defendant's pending counterclaim did not change its analysis because its sanctions motion was not related to any pleadings, motions, or documents relevant to the counterclaim.  Because the defendant's sanctions motion was not filed within 30 days of the Rule 304(a) finding, the circuit court lacked jurisdiction to consider it.

    Justice Mikva dissented, asserting that, because the case as a whole was still pending when the defendant filed its sanctions motion, it was timely.  Justice Mikva noted that Rule 137 requires a sanctions motion to be filed in the same “civil action” in which the allegedly sanctionable conduct occurred.  Because the civil action was still pending while the defendant’s counterclaim remained pending, the sanctions motion could be filed until all claims against all parties had been disposed of.

    *Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.  No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.

  • November 09, 2019 12:03 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court’s November Term begins Tuesday, November 12, 2019, with oral arguments scheduled for November 13, 14, 19, and 20. A total of 14 cases will be heard – 8 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

    November 14

    Lewis v. Atlantic Richfield Co.

    November 19

    Johnson v. Illinois State Police

    Hess v. State Auto Insurance Companies

    November 20

    In re: Elena Hernandez

    Joiner v. SVM Management, LLC

    West Bend Mutual Insurance Company v. TRRS Corporation

    Below is a summary for one of these cases, Lewis v. Atlantic Richfield Co. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

    Lewis v. Atlantic Richfield Co.

    This case involves the question of whether parents have standing to bring a claim for their minor child’s routine blood lead screening test, where the parents did not pay for the Medicaid-covered test, and where the child has no personal injury; but where the parents are liable for the expenses of their minor child under the Family Expense Act, 750 ILCS 65/15.   

    Mary Lewis and Tashwan Banks were the lead plaintiffs in a class action brought against Defendants Atlantic Richfield Company, ConAgra Grocery Products, Inc., NL Industries, Inc., and The Sherwin-Williams Company.  They sought to recover the costs of blood lead screening their children underwent as required under the Illinois Lead Poisoning Prevention Act, 410 ILCS 45/1.  Their children were not injured and the tests were paid for entirely by Medicaid.  Defendants moved for summary judgment based on lack of standing, where Lewis and Banks incurred no expenses for the testing and their claims were solely for economic loss.  Lewis and Banks argued that they had standing because, under the Family Expense Act, they were responsible for the medical expenses of their minor children, and the collateral source rule gave them the right to recover for the lead toxicity testing.  The circuit court agreed with Defendants and granted them summary judgment.

    The Illinois Appellate Court, First District reversed.  The appellate court explained that the parents had the legal obligation to pay for their children’s medical expenses and, therefore, the right to seek to recover for those medical expenses.  Further, the appellate court noted, that right of action was not affected by the fact that a third party actually paid the expenses.  It made no difference that the claims involved a purely economic injury.  The purpose of the collateral source rule, the appellate court reasoned, was to keep a tortfeasor from realizing a windfall, such as where the economic injury was shifted to a third party.  Here, the appellate court explained, the parents had the legal obligation to pay for lead testing – testing required because of Defendants’ civil conspiracy related to using lead in paint.  Defendants should not benefit from their civil conspiracy where, as here, a third party (and not the parents) paid for that statutorily-mandated testing. 

    In their petition for leave to appeal, Defendants argued that the appellate court incorrectly found that Plaintiffs could bring a claim under the Family Expense Act, where they never incurred any obligation under the Act; and that the appellate court improperly extended the collateral source rule to purely economic damages, even if there was no personal injury.

  • November 05, 2019 7:25 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court’s November Term begins Tuesday, November 12, 2019, with oral arguments scheduled for November 13, 14, 19, and 20. A total of 14 cases will be heard – 8 criminal and 6 civil. The following criminal cases are scheduled for argument this Term:

    November 13

    People v. Shadwick King, No. 123926

    People v. Marshall Ashley, No. 123989

    People v. Jonathan Lindsey, No. 124289

    People v. Phouvone Sophanavong, No. 124337

    November 14

    People v. Ryan Roddis, No. 124352

    People v. Leslie Moore, No. 124538

    November 19

    People v. Lanard Gayden, No. 123505

    People v. Tavarius Radford, No. 123975

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

    People v. Lanard Gayden

    Police responded to an apartment building in response to reports of a "man with a shotgun."  An officer arrived and saw, from no more than five feet away, defendant standing in the threshold of the doorway to his apartment, holding a shotgun.  Defendant threw the shotgun down (inside the apartment) and slammed the door.  The officer knocked then forced his way into the apartment and arrested defendant.  Defendant was charged and convicted of unlawful use of a weapon for possessing a shotgun with a barrel less than eighteen inches; he received a two-year prison sentence with a one-year mandatory supervised release term.

    On direct appeal, defendant's arguments included that trial counsel was ineffective for failing to file a motion to suppress evidence (the shotgun) because no record evidence established probable cause or exigent circumstances permitting the officer to enter defendant's apartment without a warrant.  The shotgun in question was 17.5 inches long, and defendant asserted that the officer could not determine, from a quick glance from five feet away, that the shotgun was slightly too short.  The appellate court affirmed, concluding that the record lacked information needed to evaluate defendant's ineffective assistance claim so that it had to be raised in a postconviction petition.  Noting that defendant had mentioned in a petition for rehearing that he had recently discharged his sentence, the appellate court noted that defendant had failed to mention that fact in his initial pleadings so that the argument would not be considered.

    Before the Illinois Supreme Court, defendant first argues that the appellate court erred in holding that the record was insufficient to evaluate his ineffective assistance of counsel claim and that police lacked probable cause or exigent circumstances to enter his apartment without a warrant.  Alternatively, defendant argues that because he is entitled to a merits decision on his ineffective assistance claim, the supreme court should either: (1) order the appellate court to retain jurisdiction and remand the matter to the circuit court for an evidentiary hearing, or (2) allow defendant to raise his claim in a postconviction petition (despite the fact that he is not imprisoned as required by the Post-Conviction Hearing Act).

    In response, the People argue that defendant cannot meet his burden to show ineffective assistance based on the trial record given unanswered questions in the record and the presumption that counsel performed competently, especially given that defendant has not pointed to any potential source of new evidence outside the record.  Moreover, there may have been probable cause to arrest defendant for other crimes, such as aggravated assault of his girlfriend (who submitted a complaint), and the hot pursuit exception or exigent circumstances might also have justified the entry.  With regard to the alternative argument, the People assert that defendant is not entitled to additional opportunities to raise his meritless ineffective assistance claim.  In particular, the People argue that the court may not use its supervisory power to circumvent the terms of the Act.  Further, the People contend that there are no grounds for remanding the matter for an evidentiary hearing, and, in any event, defendant forfeited any right to such a hearing.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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