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The Magazine of the Winnebago County Bar Association

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090226

SUPREME & APPELLATE COURT REVIEW Page 5

CRIMINAL

PEOPLE v. BAILEY, __ 232 Ill.2d 285, 903N.E.2d

409 (2009)

Defendant’s conviction of possession of a controlled

substance with intent to deliver affirmed. Unanimous

decision authorized by J. Burke.

Facts and Appeal: A c ar was stopped in Winnebago

County when the officer observed that the driver and front

seat passenger, the defendant, were not wearing seatbelts.

After obtaining identification from the driver and

defendant the officer returned to the squad to do a license

and warrant chec k. T he warrant check revealed an

outstanding arrest warrant for the defendant for

mis demeanor domestic battery. The officer arrested the

defendant and placed him in the backseat of the squad. He

then searched the car and found cocaine. Defendant was

convicted of unlawful possession with intent to deliver.

Defendant sought a reversal of his conviction.

Holding: Appellate Court affirms; Supreme Court affirms,

holding that :

(1) The officer’s warrant check for defendant after he

stopped defendant did not constitute a “search” that was

prohibited by the seat-belt law;

(2) defense counsel was not ineffective for failing to argue

that the police officer’s search of defendant’s car violated

the statute regarding circumstances in which an officer

could conduct a warrant-less search;

(3) Defense counsel was not ineffective for failing to argue

that the search violated federal or state constitutions.

PEOPLE v. CALIENDO, __Ill.App3d__(No.2-07-

0121, 2nd Dist. Filed May 20, 2009) Defendant appeals the

dismissal of his section 2-1401 petition. Dismissal

vacated and case remanded with instructions. Opinion by

J. Hutchinson, JJ. McClaren and Jorgenson and concur.

Facts and Appe al: The trial court summarily dismissed

his pleading, citing section 122-2.1(a)(2) of the Post-

Conviction Hearing Ac t. Defendant argued that the trial

court com m itted reversible error when it re-characterized

his 2-1401 petition as a post conviction pet ition and failed

to properly notify him that it intended to do so, warn him

of the consequences of the re-characterization, and to

allow him to withdraw or amend his pet it ion, as required

by Shellstrom and Pearson.

Holding: The appellate court vacated the dismis s al and

remanded the case instructing the trial court proceed on

the petition as a section 2-1401 petition or the t r ial court

that it may proceed. Re-characterize the section 2-1401

and admonish the defendant about the effects of the re-

characterization, affording him the opportunity to

withdraw or to amend the pleading to include any

addit ional post-conviction claims he believes he has. The

court also rejected the state’s claim that a re-

characterization situation could be subject to a harmless

error analyses.

Tip For Practitioners: This decision further confuses the

status of Shellstrom and Pearson decisions in light of

People v. Vincent 226 ILL2d 1 (2007) and puts the Second

District in conflict with the Third District in its decision in

People v. Higgenbotham, 368 Ill.App3d 1137 (3rdDist .

2006)

PEOPLE v. LUGO, __Ill.App3d__(No.2-07-0296,

2nd Dist., filed June 26, 2009). Opinion by J . Zenoff, J.

Burke, concurrs. J. McLaren dissents. Appeal dismissed.

Facts and Appeal: Defendant was indicted on three

counts of solicitation of murder for hire. The defendant

pleaded guilty to the one count and w as s entenced to 20

years’ imprisonm ent. Defendant then appealed this

subsequent dismissal of his post-conviction petition.

Defendant’s notice of appeal was file stamped with a date

of March 15, 2007. An envelope was taped to the back of

the notice of appeal and was addressed to the clerk of the

18th Judicial Circuit Court with defendant’s name and

return address. The envelope was post marked March 2,

2007. T he envelope was not file stamped. The question

before the appellate court was whether the proof of

mailing requirements of Supreme Court Rule 373 can be

satisfied by a postmark affixed to an envelope taped to the

back of a notice of appeal.

(Continued on Page 6)

SUPREME & APPELLATE COURT REVIEW Page 6

Holding: The court dismissed the appeal answering the

above question - no.

Analyse s : The majority notes that defendant’s notice of

appeal was due March 5, 2007. Defendant’s notice of

appeal was file-stamped March 15, 2007. If the postmark

on the envelope was sufficient the notice would be timely.

The majority interpreted the language of Supreme Court

Rule 373 as providing proof by certificate as affidavit of

mailing. As this was not done the rule was not com plied

with and defendant’s notic e was untimely and the court

did not have jurisdiction . The majority further finds

support in the Supreme Court decision Secura Ins. Co. v.

Illinois Farmers Ins. Co. 232 Ill.2d 209(2009). The

majority did not determine on what constitutes mailing

from jail, but the court determined only that where a

document is mailed, whether by placing it in the hands of

prison staff or placing it in a U.S. Post Office receptacle,

a postmark is not sufficient proof of that m ailing. The

m ajority concluded that the defendant’s notice of appeal

was untim ely because the plain language of Rule 373

requires proof of mailing with form dissenter of a

certificate of affidavit of mailing, and a postmark was

neither. In a lengthy dissent they complained that the

majority interpreted Rule 12(b)(3) too narrowly and also,

failed to consider the liberal in terpretation of the mailbox

rule. The decent also distinguishes Secura. The decent also

speak as to the difficulty of inmates to obtain affidavits.

Lawrence Bauer is the

director of the Off ice of the

State’s Attorney Appellate

Prosecutor-Second District.

He is a graduate of the

Valparaiso University

School of Law. Mr. Bauer

was admitted to the practice

of law in Illinois in 1976.

SUPREME & APPELLATE COURT REVIEW Page 6

Holding: The court dismissed the appeal answering the

above question - no.

Analyse s : The majority notes that defendant’s notice of

appeal was due March 5, 2007. Defendant’s notice of

appeal was file-stamped March 15, 2007. If the postmark

on the envelope was sufficient the notice would be timely.

The majority interpreted the language of Supreme Court

Rule 373 as providing proof by certificate as affidavit of

mailing. As this was not done the rule was not com plied

with and defendant’s notic e was untimely and the court

did not have jurisdiction . The majority further finds

support in the Supreme Court decision Secura Ins. Co. v.

Illinois Farmers Ins. Co. 232 Ill.2d 209(2009). The

majority did not determine on what constitutes mailing

from jail, but the court determined only that where a

document is mailed, whether by placing it in the hands of

prison staff or placing it in a U.S. Post Office receptacle,

a postmark is not sufficient proof of that m ailing. The

m ajority concluded that the defendant’s notice of appeal

was untim ely because the plain language of Rule 373

requires proof of mailing with form dissenter of a

certificate of affidavit of mailing, and a postmark was

neither. In a lengthy dissent they complained that the

majority interpreted Rule 12(b)(3) too narrowly and also,

failed to consider the liberal in terpretation of the mailbox

rule. The decent also distinguishes Secura. The decent also

speak as to the difficulty of inmates to obtain affidavits.

Lawrence Bauer is the

director of the Off ice of the

State’s Attorney Appellate

Prosecutor-Second District.

He is a graduate of the

Valparaiso University

School of Law. Mr. Bauer

was admitted to the practice

of law in Illinois in 1976.

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A LETTER FROM THE SECOND VICE PRESIDENT Page 9

BY TOM LAUGHLIN

It is said in some governmental circles that the

principle job of the Vice-President is to inquire into the

continued health of the President. Since we have a First

Vice-President and a Second Vice-President, it would

s eem to follow that the principle job of the First Vice-

President is to inquire into the continued health of the

President and the principle job of the Second Vice-

President is to inquire into the continued heath of the First

Vice-President. I have s een both our President and our

First Vice-President recently and they both appear to be in

fine health.

Our Second-Vice President does have one other

specific duty and that is to plan the association’s monthly

meetings. For several years now, Second Vice-Presidents

have spent much time and energy attempting to divine that

which may be of in terest to at least a goodly minority of

the members. The planning of those meetings now falls to

me. I have asked myself, as a 62 year old male, what do I

know about what is of enough interest to our members to

make them want to attend a bar association meeting? The

short answer is: not much.

I have received one request to have a presentation

on a new CPR technique and I intend to present a program

on that s ubject. The Dean of the College of Law of the

University of Illinois has sent a representative to see me

and has asked for time to make a presentation. The Clerk

of the local Circuit Court has asked for som e t im e in

which to address the association members on certain

internal operating measures. It has been suggested that we

have a presentation on the use of social media such as

Facebook and Twitter. I have nothing else on the

schedule.

I operate on the premise that in a professional

association of 600 plus members, all of whom have at

m inim um a Juris Doctor degree, there must be at least a

handful of people with ideas concerning what subjects

may be of interest for a membership meeting. Any

suggestions will be appreciated.

Thomas E. Laughlin is a

is a sole practitioner. A

graduate of of the

University of Illinois

College of Law, he was

admitted to the practice

of law in Illinois in 1972.

Mr. Laughlin is the

Second Vice President of the

Winnebago County Bar

Association and a member

of the Editorial Board of

The Lawyer.

CLAMBAKE 2009 (A TRIP BACK IN TIME) Page 11

On Friday July 31, 2009, I attended this year ’ s

vers ion of the Clambake. Most of you may say, “So

what.” After all, Clambake happens every year.

Clambake has not happened every year for me. In fact,

this was the first time I attended Clambake since 1981. I

had a ball!

In 1981 I was nearing the end of my first year of

practicing law. At that time I w as an associate with the

firm of Miller, Hickey and DeBruyne, Ltd. They, as

should all good firms, were kind enough to pay my fee to

permit me to attend the BIG PARTY. How could I pass up

free food, free golf and possible prizes? I must add,

however, that the firm did not pay my fee for Fire Watch.

That came from my own pocket but it was worth it. I was

wide eyed and innocent and had never even played craps.

I learned at the feet of two masters, Alex and Alex. You

old timers know who I mean and to you young punks, that

was gambling!

After 1981 the firm split and I would have had to

pay my own way. I chose to save my money.

In later years I worked with the Public Defender’s

Office and we, w ith the help of Dick Berry created our

own version of a golf play day called “The Half-Bake.” It

started with a few of us playing with Dick at his country

club in Oregon and grew from there. It was a cheaper

alternative and after all, our clients never believed we

were REAL attorneys so why should we pay to play with

them. I can still see Ed Light on the cour s e at Elliott

shooting 7 balls in a row into the water. Anybody ever

see Kevin Costner in the movie Tin Cup?

I left the Public Defender’s Office many years ago

and I now work with a firm that has always been willing to

pay my way to the Clambake. I just have chosen not to go.

The reasons do not matter. What matters is I missed out

on a GOOD TIME!

This year I was shamed into going because Chris

DeRango, Randy Woodard and Patrick Moore needed a

fourth for golf. After a little arm twisting I caved in only

if we did not play “early in the morning. ” That condition

was accepted as they were intending to go to Fire Watch

anyway. Chris did warn me, however, that they sometimes

do not follow strict golf etiquette. I assured him it was OK

to talk in my back swing. He assured me that would be

just the tip of the iceberg!

Friday I arrived and was soon confronted with a

little green f rog taped to the front of the cart occupied by

Chris and the other Randy. This frog wore a helmet, held

a steering wheel and sang I Can’t Drive 55. In addition, in

their cart was a boom box to which Randy had attached his

I Pod. We had music where ever we went. AC/DC really

does go with golf.

I always thought I knew the basic rules of golf.

Thanks to Chris , Randy and Patrick I learned a very

important new rule: For every drink you start and f inish in

a single hole you subtract 1 stroke. Thanks to that rule I

shot 90. I think Chris shot about 60. Is that rule part of

Tiger’s secret?

In my practice I have contact with a limited

number of attorneys. I really enjoyed seeing and talking

with other attorneys from my past, be it past jobs , past

softball teams, past basketball teams or past excursions to

a local bar. I used to work with Karl Koonmen but had not

spoken with him beyond “Hi” for years. It was nice to see

Gary Kovanda. I always liked him. Mike Scheurich

makes m e laugh. Jean Schroeder and Lisa Munch, sorry

for the slow play. To Tom Green, sometimes you have to

suffer for your sport.

I guess what I am saying is I am glad I attended

Clambake 2009. I look forward to next year.

I cannot close without addressing two more points.

(1) the lobster tail was magnificent. (Holly made me say

that) and (2) Holly, you promised I would win the Vegas

trip. What happened?

Randy Wilt practices with the f irm of Sreenan & Cain. A

graduate of Loyola University College of Law, he was

admitted to the practice of law in Illinois in 1980. He is a

member of the Editorial Board of The Lawyer.

CIVIL JURY REPORTJUDGE: Hon. Gwyn Gulley

CASE NAME AND NUMBER: Eric Sonnenberg v. Tonya

Kahly executor of the estate of Norma Claudy

PLAINTIFF’S ATTORNEY: Nick Zimmerman of Sreenan

& Cain, P.C.

DEFENDANT’S ATTORNEY: Paul Wharton and

Associates

FACTS: Rear end auto collision. Plaintiff suffered a slight

loss of hearing in one ear. At arbitration, the Plaintiff was

awarded $16,500 plus costs.

INJURIES: Ear injury with a slight hearing deficit.

SPECIALS: $10,874

PLAINTIFF’S EXPERT: Dr. Jonathan Ferguson

DEMAND: $15,000

OFFER: $7,500

ASKED OF JURY: $32,874 by Plaintiff, $4,000 by

Defendant

VERDICT: $17,000 for Plaintiff.

Winnebago County Bar Association

Memorial Service

Thursday, September 17, 2009

12:30 P.M.

Courtroom “A”

Winnebago County Justice Center

Honoring:

William L. Balsley

Joseph A. DiCaprio

Thomas A. Milani

Mary Alice Odling

Hon. Bradner Riggs

and

James D. Zeglis

MUSINGS ON THE FUTURE OF ROCKFORD AND AN INVITATION TOOTHER WINNEBAGO COUNTY BAR ASSOCIATION MEMBERS TO

SHARE THEIR LEARNING EXPERIENCES FROM OTHER BARASSOCIATIONS’ PROGRAMS, MEETINGS Page 13

Susan K. Riege, J.D., L.L.M.

Last night I was reflecting upon the future of

Rockford and upon all the bar as sociations to which we

Illinois lawyers can belong. Let’s start with bar

association memberships. In addition to our county-level

bar as s ociations, we lawyers can all belong to the Illinois

S tate Bar Association, the American Bar Association.

Som e of us can become members of the Women’s Bar

Association or the state or national trial lawyer’s

association. Each of these bar associations also has

section memberships, whic h afford members the

opportunity to learn more about their specialty areas while

networking with others with similar interests. In addition,

each section usually presents special interest programs

open to all bar associat ion members. We lawyers truly

enjoy a richness in programming here in Illinois . Of

course, active bar association membership also offers us a

wealth of opportunities to socialize and network with

others in the legal profession. Sometimes, we even have

the opportunity to engage our avocational interests through

our bar association memberships. Thus, for example, the

Chicago Bar Association has a chorus and an orchestra.

Many Winnebago County Bar Association

members are active members of other bar associations and

attend section meetings through them. I’m sure they also

network there. I for one would like to invite them to share

their experiences at these other bar association functions

with other WCBA members by contributing brief articles

about their learning experiences to The Lawyer.

Similarly, last night I was musing about the future

of Rockford and also wondering how we members of the

WCBA might help rais e the visibility of the Rockford

legal com m unity when attending other bar associations’

functions. Our bar associat ion m embers are able to be

active in the Rockford community bec ause they don’t

typically have to commute in from long distances . Work

hours are more family-friendly than on the East Coast, for

exam ple. Lawyers are able to get to know one another

without too much difficulty as the legal community is still

relatively small. Our judges have been proactive in

enc ouraging civility among lawyers and in helping new

lawyers make the transition from law student to practicing

lawyer. Billing rates are lower than in larger urban areas

but c lients can find here practitioners with solid

bac kgrounds in most major areas of legal practice. We

m us t remember that when we attend other bar

associations’ meetings, we represent not only ourselves

but, implicitly, the Rockford legal community. I hope that

we are good legal ambassadors.

It would behoove us to get to know members of

other more local bar associations better, too. Maybe

shared programming could even emerge. If Rockford-area

lawyers were to interact more with those from surrounding

areas, we’d probably be able to be more influential at the

state and national level. In the next five years, Rockford

will probably finally get train service to Chicago on a

regular basis. Once the economy starts to recover, I

believe we will also see more Chicago people moving into

the Rockford area. Roc kford can either embrace the

newcomers or resent them. The better choice, I believe, is

to welcome them. We can also learn f rom them. In

addit ion, if Chicago is successful in its bid to host the

Olympics, Rockford and Rockford lawyers should also be

able to benefit from increased business opportunities.

The best way for us to benefit is to be proactive-- to help

Chicago ready its bid, to think of ways that Rockford can

contribute to the Olympics preparations, etc. We can

reach out to others instead of waiting for them to come to

us.

The Rockford area will become part of the

Chicago area. It is inevitable because Chicago continues

to expand. Unlike many Chicago suburbs, however, it

already has a full infrastructure. When Rockford becomes

more easily linked to the Chicago area via rail

transportation, more jobs will become available to

Rockford residents. That has to be a good thing. We

lawyers are able to contribute in a unique way to

Rockford’s transition from being a city which has become

rather geographically isolated from other major populat ion

areas into a thriving city linked to Chicago but with its

own unique personality and character.

Does anyone have any learning experiences from

other bar associations’ meetings or networking events to

share? Does anyone else have any thoughts about the

future evolution of the Rockford area and the type of legal

w ork that will be centered here? It would be nice if they

could share them with fellow Winnebago County Bar

Association members here in The Lawyer. Thank you in

advance for sharing.

Join the Bar at the Bar!

5:30 p.m.

Wednesday, August 19, 2009

Der Rathskeller 1132 Auburn St.

WHAT TO READ ON YOUR SUMMER VACATION Page 14

BY MIKE RARIDON

As you head to the lake, or camp, backyard or

wherever you go to escape in the dog days of summer, you

will have opportunities to sit and read that trashy novel or

celebrity biography or latest fad diet book. Instead, you

might want to try one of these non-fiction tomes, just to be

non-conformist, or even to enjoy yourself!

Why not start with what you are doing anyway??

A History of the World in Six Glasses by Tom Standage is

just what the name implies, and gives you a short and

breezy “history lite” spin through the impact of beer, wine,

coffee and more on the last 8000 years of human culture.

When you realize that tea was supported by the industrial

m agnates of Europe because it improved worker

produc tivity, you better understand why the East India

company could be practically a separate country with huge

influence on how we do breakfast even today. Or how

Coke became the dominant cola by promising to bott le it

anywhere U.S. servicemen were sent during WWII. OK,

its trivia, but it explains why Pepsi comes in 12 ounce

bottles, and we all were wondering about that, right??

If your taste runs more to self-improvement, grab

a c opy of Spark: the Revolutionary New Science of

Exercise and the Brain. Written by John Ratey, M.D., a

Harvard psychiatrist and brain physiologist, the book

describes the huge im pac t physical activity has on brain

acuity, emotional stability, and how we age (something I

for one am increasingly concerned about!!) “You have the

power to change your brain. All you have to do is lace up

your running shoes.” What better topic for vacation

reading??

As a subject of relaxation, the history of religious

freedom in America might not be your first choice. I still

would suggest you try a tour through Founding Faith, a

truly “fair and balanced” treatment of a difficult topic that

influences our national culture on a daily basis. Written

by Steven Waldman, the founder of Beliefnet.com, the

book traces the faiths of five of our Founder s - Franklin,

Adam s , Washington, Madison, and Jefferson - as well as

the important role religious passions played in getting the

Revolutionary War started and concluded. Seeing the

(Continued on Page 15 )

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