2023 IL App (1st) 221062
FOURTH DIVISION Order filed: December 14, 2023
Nos. 1-22-1062 & 1-23-0220 (cons.)
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 00 CR 9505 ) EDDIE HILL, ) Honorable ) William G. Gamboney, Defendant-Appellant. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Martin concurred in the judgment and opinion.
OPINION
¶1 The defendant, Eddie Hill, appeals two circuit court orders, one granting his petition for
postconviction relief filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2004)) and one resentencing him to thirty-seven years in prison for two counts of attempted
first-degree murder. The defendant contends that resentencing was an insufficient remedy for his
postconviction claim that trial counsel’s misadvice caused him to reject a favorable plea offer and
that the sentence imposed following resentencing violated his right to due process and was Nos. 1-22-1062 & 1-23-0220 (cons.)
excessive. We agree with his second argument and reverse his sentence and remand with
instructions.
¶2 In 2005, following a bench trial, the defendant was convicted of multiple counts of
attempted first-degree murder, aggravated battery with a firearm, and aggravated battery, all
stemming from the shooting of Cornelius Grant and Antonio Ingram in February 2000. At trial,
the victims testified that, while in the stairwell of their apartment building, the defendant
approached them with a revolver and asked them about joining the Gangster Disciples gang. When
the victims expressed no interest, the defendant fired the revolver at the floor. The victims testified
that they began running down the stairs, and the defendant fired shots at them, striking Grant in
his index finger. The victims proceeded to a fourth-floor apartment, and the defendant pursued
them, eventually shooting Grant in his chest and Ingram in his leg. According to the victims, they
identified the defendant as the shooter from a photo array shown to them by the police shortly after
the incident. At trial, Grant testified that, as a result of his gunshot wound, he was confined to a
wheelchair, and Ingram testified that his femur had required a pin to repair the fracture he
sustained. After finding the defendant guilty on many of the charges, including two counts of
attempted first-degree murder, the court sentenced him to concurrent and consecutive prison terms
totaling seventy-five years. On direct appeal, this court held that the defendant’s aggravated battery
convictions violated the one-act one-crime rule and, therefore, vacated those convictions and
remanded for the defendant's mittimus to be amended to reflect two convictions for attempted first-
degree murder with corresponding consecutive sentences of forty-five- and thirty-years’
imprisonment. See People v. Hill, No. 1-06-0041 (unpublished order pursuant to Supreme Court
Rule 23).
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¶3 In 2009, the defendant, acting pro se, filed the instant petition for postconviction relief
under the Act, raising, among others, a claim that his trial counsel rendered ineffective assistance
by misadvising him regarding the maximum potential sentence, which caused him to reject a
favorable plea offer. Specifically, the defendant alleged that, during a plea conference held
pursuant to Supreme Court Rule 402 (eff. July 1, 1997), the State offered the defendant twenty
years in prison in exchange for a guilty plea to the attempted-murder charges and that defense
counsel advised him that he should reject the offer because the State's case was “purely
circumstantial,” he would likely win at trial, and if he was found guilty his sentences would run
concurrently.
¶4 After the petition was dismissed at the second stage and that dismissal was reversed on
appeal (see People v. Hill, 2014 IL App (1st) 131625-U (unpublished order pursuant to Supreme
Court Rule 23)), the defendant, this time through new counsel, filed a supplemental petition further
alleging that trial counsel had misinformed him that he was facing a sentencing range of six to
thirty years in prison, when in reality the true maximum was much higher. The State moved to
dismiss the supplemental petition. In a March 12, 2019, order, the court granted in part and denied
in part the State’s motion. In doing so, the court dismissed other claims that are not at issue in this
appeal but allowed the defendant’s claim regarding counsel’s misadvice to proceed to a third-stage
evidentiary hearing.
¶5 At that third-stage proceeding, the defendant testified that trial counsel advised him that he
was facing six to thirty years in prison, with thirty years being the maximum. According to the
defendant, counsel further informed him that the State had offered twenty years “for both the
attempt murders.” The defendant recalled that counsel advised him to reject the offer because the
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State’s case was beatable, and he rejected the offer based on that advice. When he heard that he
was sentenced to a total of seventy-five years in prison his “heart stopped” because he believed he
was facing a maximum of thirty years and did not understand what was going on. On cross-
examination, the defendant further explained that he believed that the twenty-year offer came from
the State and that he did not understand the difference between an offer from the State and a Rule
402 offer from the court.
¶6 Several other witnesses testified on the defendant’s behalf and largely corroborated the
defendant’s account, with the defendant’s sister, the mother of the defendant’s child, and the
defendant’s girlfriend each testifying that the defendant’s trial counsel had told them that the
defendant was facing six to thirty years in prison. The defendant’s trial counsel testified that he no
longer possessed the file from the defendant’s case, but he recalled that the sentencing range was
six to thirty years and that the court had made an offer of twenty years during a Rule 402
conference. Following the conclusion of testimony, the defendant’s counsel argued that the
defendant had shown deficient performance and prejudice and requested that the court “vacate the
conviction and remand it for a new trial.”
¶7 In a written order entered on October 28, 2020, the court found that the defendant had
indeed proven that trial counsel performed deficiently by “fail[ing] to fully inform [the defendant]
of his exposure to extended and consecutive sentencing and the maximum term that could result,”
and that the defendant was prejudiced by counsel’s errors because counsel’s misadvice caused the
defendant to reject a favorable plea offer. However, the court did not agree with the defendant’s
requested remedy of a new trial. The court reasoned that “nothing about [the defendant’s] claim or
its supporting facts affects the propriety of the trial. To be sure, [the defendant] was proven guilty
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of the crimes for which he was convicted. In no way should this claim disturb the findings of guilt.”
Instead, the court believed that the appropriate remedy was to vacate the defendant’s sentence and
to hold a new sentencing hearing at which it could fashion a sentence that effectively neutralized
the taint of the constitutional violation without granting a windfall to the defendant.
¶8 The court held the resentencing hearing on July 5, 2022. The State informed the court that
the defendant had previously been convicted of armed robbery and was on parole for that offense
at the time of the attempted murders at issue in this case. The defense presented testimony from
the defendant’s girlfriend, Nicika Levi, who testified that she had visited the defendant both in jail
and in prison and had noticed that the defendant had changed “tremendously” for the better since
his arrest. Levi asserted that the defendant is “caring, he's very reliable as far as being
compassionate, he's there for his family, verbally of course over the phone, very supportive. I have
[seen] a change in him.” Levi stated that the defendant would be able to live with her if he were
released and that he would be able to work for a business owned by a family friend. The defendant
also presented evidence establishing that he has several health maladies.
¶9 The defendant testified in allocution and asked for a second chance at life. He stated that
he is a completely different person now and would not recognize the person he was when he
committed these offenses. He said he was deeply sorry for his actions and understood why he
needed to go to prison. The defendant’s counsel asked the court for a sentence of twenty years in
prison, the same sentence that the trial court had originally offered, and argued that anything
beyond thirty years, the term that the defendant believed to be the maximum when he rejected the
twenty-year offer, would be “inappropriate” and unfair to the defendant.
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¶ 10 After hearing the testimony and the arguments of the parties, the court observed that the
defendant was “a different person today than he was at the time of the crimes here,” is more mature,
has a wealth of family support, and has been well-behaved in prison. However, while
acknowledging that the defendant’s personal changes are relevant, the court stated that it “can’t
overlook who he was back at the time when he shot these people. I think that’s of primary concern.”
Ultimately, the court resentenced the defendant to a total sentence of thirty-seven years in prison,
twenty-five years for the attempted murder of Grant and twelve years for the attempted murder of
Ingram. The defendant made an oral motion for reconsideration, which the court denied.
¶ 11 On July 7, 2022, the defendant filed a notice of appeal regarding the circuit court’s July 5,
2022, sentencing order. That appeal was docketed as case number 1-22-1062. On February 7, 2023,
the defendant filed a late notice of appeal regarding the circuit court’s October 28, 2020, order
granting his petition for postconviction relief and ordering resentencing. This court allowed the
late notice of appeal and docketed the appeal as case number 1-23-0220. We subsequently granted
the defendant’s motion to consolidate the appeals, and we now address them here together.
¶ 12 In these appeals, the defendant raises three distinct arguments. First, he asserts that
resentencing was not the appropriate remedy and that he should have been granted specific
performance of the twenty-year offer that he rejected based on counsel’s misadvice. He then raises
two arguments in the alternative that the sentence imposed after resentencing violated his right to
due process because it exceeded what he was advised was the maximum potential sentence and
that the new thirty-seven-year sentence is excessive. We will address each argument in turn.
¶ 13 First, the defendant argues that the circuit court erred in choosing resentencing as the
appropriate remedy rather than specific performance of the twenty-year offer that he rejected based
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on trial counsel’s misadvice. He asserts that he should not have to serve an additional seventeen
years in prison for an error that was not his fault and that he should receive the “benefit of the
bargain negotiated on his behalf.” However, as the State points out in its brief, the defendant did
not request specific performance as the remedy for trial counsel’s ineffective assistance. Rather,
at the third-stage evidentiary hearing his counsel expressly requested that the court “vacate the
conviction and remand it for a new trial.” And the court understood that to be the defendant’s
desired relief, with the court noting in its written order that “[the defendant’s] counsel argued that
he should receive a new trial.” Indeed, it was not until the resentencing hearing itself that the
defendant requested a twenty-year sentence.
¶ 14 It is a well-established principle of appellate law that a party cannot for the first time on
appeal ask for a remedy that was not requested below. See Martinez v. River Park Place, LLC,
2012 IL App (1st) 111478, ¶ 29 (“It is well settled that issues not raised in the trial court are deemed
forfeited and may not be raised for the first time on appeal.”); Monday v. Ace Home Improvement
Services, Inc., 248 Ill. App. 3d 481, 485 (1993); Bell v. Yale Development Co., 102 Ill. App. 3d
108, 112 (1981). Because the defendant only requested a new trial during third-stage proceedings
below, he cannot now claim that the circuit court erred in not granting specific performance, a
remedy that he did not request during the relevant timeframe. He has forfeited that argument on
appeal.
¶ 15 However, forfeiture aside, we still do not see any merit to the defendant’s argument. The
main reason for that conclusion is the amount of discretion that the circuit court possesses when
crafting a remedy for this type of constitutional violation and the resulting deferential standard of
review that we must apply to this issue. The defendant contends that we should review the circuit
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court’s choice of remedy de novo. However, the case that he cites for that proposition does not
address the particular issue before us and rather states more generally that, when reviewing the
circuit court’s decision following a third-stage evidentiary hearing, “if no *** [credibility]
determinations are necessary at the third stage, i.e., no new evidence is presented and the issues
presented are pure questions of law, we will apply a de novo standard of review,” unless the circuit
court judge’s familiarity with the defendant’s trial or sentencing has some bearing on the
disposition of the defendant’s petition. People v. English, 2013 IL 112890, ¶ 23.
¶ 16 But the United States Supreme Court’s decision in Lafler v. Cooper, 566 U.S. 156 (2012),
is more relevant. There, the Supreme Court addressed the particular question of how to review a
lower court’s choice of remedy for a postconviction claim that the ineffective assistance of trial
counsel caused a defendant to forego a favorable plea offer. Its analysis of the issue makes clear
that the choice of remedy is in the lower court’s discretion. The Supreme Court explained that
“Sixth Amendment remedies should be ‘tailored to the injury suffered from the constitutional
violation and should not unnecessarily infringe on competing interests.’ ” Id. at 170 (quoting
United States v. Morrison, 449 U.S. 361, 364 (1981)). “Thus, a remedy must ‘neutralize the taint’
of a constitutional violation, [citation], while at the same time not grant a windfall to the defendant
or needlessly squander the considerable resources the State properly invested in the criminal
prosecution [citation].” Id.
¶ 17 According to the Supreme Court, the injury suffered by a defendant who rejects a plea offer
based on the misadvice of counsel and then receives a harsher sentence after trial can come in at
least one of two forms. Id. In the first, “the sole advantage a defendant would have received under
the plea is a lesser sentence. This is typically the case when the charges that would have been
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admitted as part of the plea bargain are the same as the charges the defendant was convicted of
after trial.” Id. at 170–71. If the defendant in such a case proves at an evidentiary hearing that he
would have accepted the plea offer if not for counsel’s error, “the court may exercise discretion in
determining whether the defendant should receive the term of imprisonment the government
offered in the plea, the sentence he received at trial, or something in between.” (Emphasis added.)
Id. at 171. In the second scenario, resentencing alone may not be enough to cure the constitutional
harm. “If, for example, an offer was for a guilty plea to a count or counts less serious than the ones
for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's
sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice.”
Id. “In these circumstances, the proper exercise of discretion to remedy the constitutional injury
may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge
can then exercise discretion in deciding whether to vacate the conviction from trial and accept the
plea or leave the conviction undisturbed.” (Emphases added.) Id.
¶ 18 Notably, in both of these scenarios, the Supreme Court described the choice of remedy as
being a discretionary decision on the part of the postconviction court, and the Supreme Court
further clarified that point by noting that it did not need to define the “boundaries of proper
discretion” and that existing statues, court rules, and caselaw “will serve to give more complete
guidance as to the factors that should bear upon the exercise of the judge's discretion.” Id.
¶ 19 Accordingly, it is clear from the Supreme Court’s discussion in Lafler that the choice of
remedy to grant a defendant who rejects a plea offer based on the misadvice of counsel and then
receives a greater sentence following trial is a matter committed to the sound discretion of the
postconviction court. Indeed, that is how this court has previously interpreted Lafler. In People v.
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Hudson, 2017 IL App (3d) 160225, this court was presented with virtually the same situation that
we have presently before us. The defendant was seeking postconviction relief after trial counsel’s
misadvice caused him to reject a plea offer and he ultimately received a greater sentence following
trial. Id. ¶ 5–6. A federal district court granted the defendant’s petition for a writ of habeas corpus
and ordered the State to reoffer the defendant the same offer it had extended prior to trial, and the
State complied. Id. ¶ 8. However, after the defendant accepted that offer, the circuit court rejected
the plea agreement and maintained the defendant’s convictions and original sentence. Id. ¶ 9.
¶ 20 On appeal of the circuit court’s decision in Hudson, the defendant argued that the standard
of review should be de novo and the State argued that it should be abuse of discretion. Id. ¶ 13.
The appellate court, citing Lafler, agreed with the State, observing that “the state trial court has to
exercise its discretion to determine the correct remedy” and that “we review the trial court's
decision to determine if it abused its discretion in fashioning a remedy that would neutralize the
taint of the sixth amendment violation.” Id.; see also People v. Nicholson, 2021 IL App (3d)
180010, ¶ 25 (“The trial court has the discretion to impose a sentence that is either (1) equal to the
6 years offered by the State or (2) greater than it but less than the 25 years Nicholson initially
received.” (Emphasis added.)); cf. People v. Stapinski, 2015 IL 118278, ¶ 35 (“[O]nce it is
determined that a defendant suffered a prejudicial violation of his due process rights, the trial
court’s decision on the appropriate remedy—whether it be dismissal of the indictment or some
other remedy—is reviewed for an abuse of discretion.”).
¶ 21 Accordingly, we review the circuit court’s choice of remedy in this case for abuse of
discretion. “[A]n abuse of discretion occurs where the trial court's decision is arbitrary, fanciful,
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or unreasonable to the degree that no reasonable person would agree with it.” People v. McDonald,
2016 IL 118882, ¶ 32.
¶ 22 For two reasons, we do not view the circuit court’s decision to grant the defendant
resentencing as an abuse of discretion. First, although the defendant paints the court’s decision as
choosing resentencing over specific performance of the original plea offer, that was not what the
court was presented with during the third-stage proceedings. As we noted at the outset of our
analysis of this issue, the defendant specifically asked that his convictions be vacated and that he
be granted a new trial, not that he be reoffered the original offer. And, as the circuit court observed
in its order, granting the defendant a new trial would certainly be the type of windfall that Lafler
cautioned against. Nothing about trial counsel’s error in this case undermined the verdict of guilt,
and there is no indication that the defendant did not receive a fair trial. See United States v. Cobb,
110 F. Supp. 3d 591, 601 (E.D. Pa. 2015) (explaining that, “[i]n a case where a defendant receives
ineffective assistance at the plea bargaining stage, then goes on to be convicted at a fair trial of the
same offense that was the subject of the plea offer, the proper remedy is not ordinarily a new trial”
because, in such a situation, a new trial would be a windfall to the defendant (citing Lafler, 566
U.S. at 171)). Accordingly, when considering the context of what the defendant asked for, the
court did not act unreasonably in rejecting the defendant’s requested remedy.
¶ 23 Second, this case does not present the second scenario discussed in Lafler, in that reoffering
the defendant the same twenty-year sentence that the trial court proposed during the Rule 402
conference is not the only way to grant the defendant an appropriate remedy. This is because there
is no indication in the record that the offer involved reduced charges that are no longer available
and because the sentence offered is within the range of potential sentences for the defendant’s
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convictions under the sentencing guidelines that the parties agreed to apply, which imposed a
sentencing range of twelve to ninety years. 1 In other words, the court could hold a full resentencing
hearing and still be able to grant the defendant a twenty-year sentence if the court believed that it
was appropriate after a review of all of the evidence, which would include the mitigating
circumstances related to the Rule 402 plea offer and trial counsel’s ineffective assistance.
Resentencing is consistent with Lafler’s mandate that the remedy be “tailored to the injury suffered
from the constitutional violation” without “unnecessarily infringing on competing interests.” 566
U.S. at 170. With that being the case, we cannot say that it was unreasonable for the court to grant
the defendant a resentencing hearing at which it could hear all evidence bearing on the defendant’s
sentence. The court’s choice of remedy was not an abuse of discretion.
¶ 24 In his second issue, the defendant makes two arguments in the alternative regarding the
length of his new sentence. First, the defendant asserts that his right to due process prohibited the
court from resentencing him to a term that exceeds what he believed to be the maximum sentence
that he could receive when he rejected the court’s twenty-year offer and elected to proceed to trial.
In support of this argument, the defendant cites a line of cases examining the proper remedy when
1 In his brief, the defendant asserts that the minimum sentence was actually sixty-two years due to the retroactive application of certain firearm enhancements that had been ruled unconstitutional for a period of time during his trial court proceedings but were later revived shortly before his original sentencing. He contends, therefore, that a twenty-year sentence was not available at resentencing and that the only way to grant him a twenty-year sentence was to reoffer the original offer. However, the record shows that the defendant’s counsel during resentencing expressly asked that the firearm enhancements not be applied. The State and the court agreed with the defendant, and he was resentenced as though the enhancements did not apply. He cannot now claim that it was error for the court to do exactly what he asked. See In re Detention of Swope, 213 Ill. 2d 210, 217 (2004) (“[A] party cannot complain of error which that party induced the court to make or to which that party consented.”). Furthermore, the defendant fails to explain how the enforcement of a sixty-two-year minimum sentence at resentencing would not equally preclude his request for the reoffering of the twenty-year offer, an outcome that he surely does not want.
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a defendant enters a guilty plea in exchange for a specific sentence and the trial court incorrectly
admonishes the defendant about the maximum potential sentence and then sentences the defendant
to a term of years greater than the admonished maximum. In such a case, the defendant is typically
allowed to withdraw his plea and plead anew. People v. Johnson, 2021 IL App (2d) 180775, ¶ 23
(citing People v. McCracken, 237 Ill. App. 3d 519, 521–22 (1992)). However, when that is not
possible, such as when a defendant is being sentenced following a revocation of probation, “ ‘the
trial court is limited in sentencing by the maximum penalty upon which the defendant had
originally been admonished.’ ” Id. (quoting People v. Johns, 229 Ill. App. 3d 740, 743 (1992));
see also People v. Whitfield, 217 Ill. 2d 177, 195 (2005) (holding that “due process is violated
when a defendant pleads guilty in exchange for a specific sentence and the trial court fails to advise
the defendant, prior to accepting his plea, that a mandatory supervised release term will be added
to that sentence” and that the remedy in such a situation is to modify the defendant’s sentence to
reflect the sentence that he believed he would receive); People v. Wenger, 42 Ill. App. 3d 608, 611
(1976) (“[D]ue process demands that the trial court's admonition define the maximum penalty that
might be imposed after revocation of defendant's probation.”).
¶ 25 The defendant asserts that this same principle should be applied in this case and that due
process requires that his sentence be capped at thirty years, the amount that he was told was the
maximum potential sentence. He contends that he is in the same position as a defendant who is
being sentenced following the revocation of probation and that, as in Johnson, Johns, and Wenger,
because his conviction is not at issue and cannot be vacated, the best available remedy is to limit
his sentence to the advised maximum. We agree. The defendant is, in all material respects, in the
same position as the defendants in Johnson, Johns, Whitfield, and related cases. His pleading
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decision was materially affected by misadvice regarding the maximum potential sentence faced,
amounting to a violation of his constitutional rights, and, as the court below has already found, he
would have pleaded differently had he been correctly advised of his true sentencing exposure. In
such a case, sentencing the defendant to term beyond that which he believed to be possible when
he chose to go to trial would be “inconsistent with constitutional concerns of fundamental
fairness.” Whitfield, 217 Ill. 2d at 190.
¶ 26 We note that in its brief the State did not respond to the merits of this argument and instead
dismissed it as merely an attempt to argue for de novo review of the circuit court’s choice of
sentence. As a result, we do not have an opposing view of the issue. Regardless, we do not see any
compelling reason not to limit the defendant’s maximum sentence to thirty years. Possible
distinguishing factors could be that the cases that the defendant relies on involve guilty pleas,
rather than the rejection of a plea offer, and that the erroneous information regarding the maximum
potential sentence came from the court, rather than the defendant’s own counsel, but neither
difference is material. It does not matter whether the defendant pleaded guilty in reliance on bad
information from the court or rejected a plea offer based on constitutionally ineffective advice
from counsel. The defendant is in the same position as the defendants who received sentences
beyond the admonished maximum: he has been sentenced to a term of years beyond what he was
told was possible when he made the decision of whether to accept a plea offer. Accordingly, due
process and fundamental fairness require that his sentence not exceed thirty years, the term that he
was told was the maximum potential sentence.
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¶ 27 In his second alternative argument, the defendant asserts that his thirty-seven-year sentence
is excessive. However, based on our conclusion that his sentence cannot exceed thirty years, we
need not address the issue.
¶ 28 In sum, we affirm the circuit court’s October 28, 2020, order granting the defendant’s
petition for postconviction relief and ordering resentencing. We reverse the court’s July 5, 2022,
order resentencing the defendant to a total term of thirty-seven years in prison and remand the case
to the circuit court with instructions to sentence the defendant to a term not exceeding thirty years.
¶ 29 No. 1-23-0220, Affirmed.
¶ 30 No. 1-22-1062, Reversed and remanded with instructions.
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People v. Eddie Hill 2023 IL App (1st) 221062 & 230220 (cons)
Decision Under Review: Appeal from the Circuit Court of Cook County, 00 CR 9505, Honorable William G. Gamboney. Judge, presiding.
Attorneys for Appellant: JAMES E. CHADD State Appellate Defender DOUGLAS R. HOFF Deputy Defender JOHN R. BREFFEILH Assistant Appellate Defender Office of the State Appellate Defender First Judicial District 203 N. LaSalle St., 24th Floor Chicago, IL 60601 Phone: (312) 814-5472
Attorneys for Appellee: Kimberly M. Foxx, State’s Attorney of Cook County Enrique Abraham, Joseph Alexander – Asst. State’s Attorneys, Of Counsel 309 Richard J. Daley Center Chicago, IL 60602 (312) 603-5496
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