Articles Posted in Sentencing and Probation

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DOJ to Focus on Individual Accountability for Corporate Fraud

The U.S. Department of Justice announces that holding individuals accountable for corporate fraud is a top priority. In a seven-page memorandum, released September 9, 2015, Deputy Attorney General Sally Quillian Yates, announced new guidelines focusing on individual accountability for corporate misdeeds.

The Memorandum states that focusing on individuals is one of the most effective ways to deter corporate wrongdoing. Holding individuals accountable will deter further wrongdoing and encourage a corporation to change its culture and behavior, it will also further promote the public’s confidence in the justice system. Continue reading

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Cgun-and-bullets-1146529-shicago – The Illinois Supreme Court finally issued its opinion addressing a number of aspects of the Illinois Aggravated Unlawful Use of a Weapon Statute, 720 ILCS 5/24-1.6.  The Court found most importantly the mandatory prison sentencing provision unconstitutional under section (d)(2).

Accepting an argument that I advanced in my representation of clients charged with AUUW, the Court agreed that since subsection (a)(3)(A) was held unconstitutional, the sentencing provision  that requires mandatory prison based on section (A) was also unconstitutional.

Simply put, the Court found that the section of the AUUW statute which was previously found to be unconstitutional could not be used as a basis for mandatory imprisonment.

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prison-979960-sChicago, Illinois

A fifteen year old was charged and convicted of aggravated criminal sexual assault, rape.  The defendant was tried as an adult and sentenced to 36 years in prison, of which he will have to serve 85%.  The Illinois Court of Appeals reversed, finding that the defendant’s confession was wrongly admitted, and that the victim’s sexual history should have been admitted under an exception to the Illinois Rape Shield statute.  The Illinois Supreme Court reversed and remanded to the appellate court to consider only the defendant’s excessive sentence claim.

The State alleged that Defendant raped his counselor when she was taking him back to the residential treatment  facility in which he lived.

The State raised two issues on appeal to the Illinois Supreme Court.   First, whether the statement should have been suppressed and second, whether the trial court properly applied the rape shield statute.

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 jail-979240-sChicago – Many client and their families want to know if they will have to serve 85% of their sentence to the Illinois Department of Corrections.  Here is the rule from 730 ILCS 5/3-6-3

 

A prisoner serving a sentence for:

attempt to commit terrorism

attempt to commit first degree murder

solicitation of murder

solicitation of murder for hire

intentional homicide of an unborn child

predatory criminal sexual assault of a child

aggravated criminal sexual assault

criminal sexual assault

aggravated kidnapping

aggravated battery with a firearm as described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05

heinous battery as described in Section 12-4.1 or subdivision (a)(2) of Section 12-3.05

armed habitual criminal

aggravated battery of a senior citizen as described in Section 12-4.6 or subdivision (a)(4) of Section 12-3.0

aggravated battery of a child as described in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05

shall receive no more than 4.5 days of sentence credit for each month of his or her sentence of imprisonment;

A prisoner serving a sentence for:

Home invasion

armed robbery

aggravated vehicular hijacking

aggravated discharge of a firearm

armed violence with a category I weapon or category II weapon, when the court has made and entered a finding, pursuant to subsection (c-1) of Section 5-4-1 of this Code, that the conduct leading to conviction for the enumerated offense resulted in great bodily harm to a victim

shall receive no more than 4.5 days of sentence credit for each month of his or her sentence of imprisonment;

        A prisoner serving a sentence for:
aggravated discharge of a firearm, whether or not the conduct leading to conviction for the offense resulted in great bodily harm to the victim

shall receive no more than 4.5 days of sentence credit for each month of his or her sentence of imprisonment

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DNAChicago – the Illinois Court of Appeals reversed and remanded a case in which the Cook County trial judge denied the defendant’s motion for DNA testing.

On October 28, 1999, the victim was shot and killed by a male wearing a gray sweatshirt. Later that day the Chicago police found a man sitting on a gray sweatshirt in a vehicle matching the description of the vehicle identified leaving the vicinity of the shooting. As the police approached the vehicle, a weapon was thrown from a window. At trial a witness testified that on the day of the shooting she spoke with the victim and then saw a man with a gray hoody whom she identified as the defendant. The witness testified that she saw the defendant’s face the first time he walked by but did not see the shooters face. Nonetheless, she identified him as the shooter in a line up and she identified a picture of the hoody.

Another witness who was sitting on her porch heard several gunshots and saw a man running with a gray sweatshirt on. She also identified the defendant in a lineup, the gray sweatshirt, and wrote down the license plate of the van he got into. Continue reading

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prison-1431136-sChicago – the Seventh Circuit Court of Appeals Addresses Probation and Supervised Release Revocation Hearings and Hearsay

Defendant Keith D. Jordan, United States v. Jordan, (No. 13-1488 January 28, 2014) was sentenced to federal prison, released and began serving his three years of supervised release on June 28, 2011.  The conditions of his supervised release included that he could not leave the judicial district without permission, associate with a felon or a person engaged in criminal activity, commit a crime, and report any arrest or questioning by law enforcement within 72 hours.  Sometime after being placed on supervised release, Defendant was arrested in Texas and charged with marijuana possession.  On December 7, 2012, the probation officer filed a petition to revoke Jordan’s supervised release alleging four violations.  First, that he left the judicial district without permission, second, that he associated with a felon, third that he committed a new offense, that being possession of 30 pounds of marijuana, and fourth that he failed to report his arrest in 72 hours.

The Federal Sentencing Guidelines categorizes violations of supervised release based on the seriousness of the violation as Grades A, B, or C, with A being the most serious.  Continue reading

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Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.

With that in mind, the Supreme Court has expended a defendant’s right to counsel to plea-bargaining having determined that negotiating a deal with the government is a critical stage in representing a client.  Poor advice on the law regarding sentencing can now lead to a reversal based on ineffective assistance of counsel.

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Many of the State’s Attorneys have been adding burglary charges a Class 2 felony, punishable by 3-7 years, to every misdemeanor retail theft by charging that these shoplifters were entering or remaining in the store to commit a theft and were thus committing a burglary. Fortunately, the Appellate Court applies some common sense which will hopefully curtail this practice.

In the case of People v. McDaniel, 2012 IL. App (5th) 100575, Court agreed with the Defendant that the legislature should decide how crimes are to be punished and every retail theft should not become a burglary.

Prosecutors should charge offense fairly and not with an intent to overly punish those who commit misdemeanor offense

 

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New Illinois law allows the circuit court to issue a “certificate of good conduct” to certain defendants to assist them in getting employment.  This new law also allows the Illinois Department of Professional Regulation to issue a non-binding opinions as to whether a person’s criminal record bars him or her from the license or certificate that the person is seeking.

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Unfortunately, many people in their lifetime get charged with a criminal offense.  Fortunately, many of these people are charged with minor criminal offenses, or even municipal ordinance violations, and have never committed a crime before and never will again.  Fortunately, most prosecutors, assistant state’s attorneys, and most judges are sympathetic to these defendants and agree to have the matter disposed of in a way that would not become a permanent mark on their record.

 

First time drug offenders are often offered “drug school” and first time shoplifters are often offered a theft deterrent school.  Once the defendant successfully graduates the case is dismissed and the defendant can have the arrest and case expunged.  Expunged means that the records are physically destroyed. 

 

People charged with shoplifting, battery, and assault are often, if found guilty, sentenced to court supervision.  Court supervision is when the defendant pleads guilty but the judge does not enter judgment on the finding of guilt.  Therefore, there is no conviction.  After the period of court supervision has expired, the case is dismissed and the defendant may file a petition to have the case and arrest sealed after a set waiting period, which depends on the type of charge.  The waiting period is either two or five years.